Padilla v. U.S. Immigration & Customs Enforcement

• Decision Date: 05 April 2019
• Docket Number: CASE NO. C18-928 MJP
• Parties: Yolany PADILLA, et al., Plaintiffs, v. US IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

379 F.Supp.3d 1170

Yolany PADILLA, et al., Plaintiffs,

v.US IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Defendants.

CASE NO. C18-928 MJP

United States District Court, W.D. Washington, at Seattle.

Signed April 5, 2019

Anand Balakrishnan, Pro Hac Vice, Michael Tan, Pro Hac Vice, American Civil Liberties Union (NY), Judy Rabinovitz, Pro Hac Vice, American Civil Liberties Union Foundation, New York, NY, William F. Abrams, Pro Hac Vice, Benjamin J. Hodges, Joanna Plichta Boisen, Kevin Ormiston, Thomas Fitzgerald Ahearne, Foster Pepper PLLC (Sea), Glenda Melinda Aldana Madrid, Northwest Immigrant Rights Project (Sea), Leila Kang, Matt Adams, Aaron Korthuis, Northwest Immigrant Rights Project, Seattle, WA, Kristin MacLeod-Ball, Pro Hac Vice, American Immigration Council, Boston, MA, Trina Realmuto, Pro Hac Vice, American Immigration Council, Brookline, MA, for Plaintiffs.

Archith Ramkumar, Joseph A. Darrow, Lauren C. Bingham, Sarah S. Wilson, US Department of Justice (BOX 868), Washington, DC, for Defendants.

ORDER GRANTING PRELIMINARY INJUNCTION

Marsha J. Pechman, United States District Judge

The above-entitled Court, having received and reviewed:

1. Plaintiffs' Motion for Preliminary Injunction (Dkt. No. 45),

2. Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction (Dkt. No. 82),

3. Plaintiffs' Reply in Support of Motion for Preliminary Injunction (Dkt. No. 85),

all attached declarations and exhibits, and relevant portions of the record, and having heard oral argument thereon, rules as follows:

IT IS ORDERED that the motion is GRANTED. With regard to the Bond Hearing Class, Defendant Executive Office for Immigration Review must, within 30 days of this Order:

1. Conduct bond hearings within seven days of a bond hearing request by a class member, and release any class member whose detention time exceeds that limit;

2. Place the burden of proof on Defendant Department of Homeland Security in those bond hearings to demonstrate why the class member should not be released on bond, parole, or other conditions;

3. Record the bond hearing and produce the recording or verbatim transcript of the hearing upon appeal; and

4. Produce a written decision with particularized determinations of individualized findings at the conclusion of the bond hearing.

Background

Under the Immigration and Nationality Act ("INA"), detained asylum seekers who are determined by Defendant U.S. Immigration and Customs Enforcement ("ICE") to have a credible fear of persecution are entitled to request release from custody during the pendency of the asylum process. See Matter of X-K, 23 I. & N. Dec. 731 (BIA 2005). The initial decision of whether the detainees may be released is made by Defendant Department of Homeland Security ("DHS") (see 8 C.F.R. § 236.1(c)(8) ), and the asylum seekers may request review of the DHS determination before an immigration judge ("IJ") by means of a bond hearing. See 8 U.S.C. § 1226(a) ; 8 C.F.R. § 1003.19(a).

The agencies' own guidelines and regulations reflect a recognition of the significance of the deprivation of liberty and the need for expeditious processing of these requests. See, e.g., 8 C.F.R. § 1003.47(k) (referring to "the expedited nature" of initial custody redetermination cases); 52 Fed. Reg. 2931, 2932 (Aliens and Nationality; Rules of Procedure Before Immigration Judges: Jan. 29, 1987) (emphasizing the need for procedures at that time to "maximize the prompt availability of Immigration Judges for respondents applying for bond determinations"); Immigration Court Practice Manual § 9.3(d)(2016) ("In general, after receiving a request for a bond hearing, the Immigration Court schedules the hearing for the earliest possible date ..."). The DHS regulations allow for bond hearings even prior to the agency filing immigration charges. 8 C.F.R. § 1003.14(a). The critical nature of the interest at stake is reflected in an underlying theme calling for hearings of this nature to be held as expeditiously as possible.

Despite this mandate, Plaintiffs have submitted a plethora of declarations reflecting a practice by Defendant Executive Office for Immigration Review ("EOIR") of delaying bond hearings for members of this class for weeks, even months, following a hearing request. (See Dkt. No. 37 at 14), Motion for Class Certification; Dkt. No. 46, Decl. of Antonini at ¶ 5; Dkt. No. 47, Decl. of Beckett at ¶ 5; Dkt. No. 48, Decl. of Byers at ¶ 5; Dkt. No. 50, Decl. of Inlender at ¶¶ 12-13; Dkt. No. 51, Decl. of Jong at ¶¶ 3-4; Dkt. No. 52, Decl. of Koh at ¶ 14; Dkt. 53, Decl. of Levy at ¶ 6; Dkt. No. 54, Decl. of Love at ¶¶ 4-5; Dkt. No. 55, Decl. of Lunn at ¶ 5; Dkt. No. 56, Decl. of Mercado at ¶ 10; Dkt. No. 57, Decl. of Orantes at ¶ 13; Dkt. No. 58, Decl. of Shulruff at ¶ 4; Dkt. No. 60, Decl. of Yang at ¶¶ 5-6.

Members of the Bond Hearing class face other obstacles to securing their freedom. At the bond hearing, the IJ bases his or her decision on an evaluation of whether the asylum seeker poses a danger to the community and is likely to appear at future proceedings. 8 C.F.R. §§ 1236.1(d)(1), 1003.19 ; Matter of Adeniji, 22 I. & N. 1102, 1112 (BIA 1999). Unique among civil detention hearings, however, EOIR places the burden of establishing these factors on the detainees instead of the government. Matter of Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006).

An asylum seeker denied bond can appeal the IJ's decision to the Board of Immigration Appeals ("BIA") or seek another bond hearing in front of the IJ based on a material change in circumstances. 8 C.F.R. §§ 1003.19(e), (f). But the potential appellant must make the decision of whether to appeal without the aid of a record of the initial bond proceeding or a written decision detailing the reasons for the ruling. There is no requirement that immigration courts record their proceedings or provide a transcript thereof, and the IJs do not release a written decision unless an administrative appeal of the bond decision has already been filed. See, e.g., Immigration Court Practice Manual §§ 9.3(e)(iii), e(vii); BIA Practice Manual §§ 4.2(f)(ii), 7.3(b)(ii).

In addition to the deprivation of liberty, detainees face a number of other hardships attendant upon their incarceration: separation from their families, substandard conditions, subpar medical and/or mental health care, and decreased access to legal assistance and the other resources required to pursue their goal of asylum (leading to a decreased likelihood of success). See, e.g., Ingrid Eagly & Stephen Shafter, Am. Imm. Council, Access to Counsel in Immigration Court (2016), https://tinyurl.com/y7hbl2rm; Dkt., Decl. of Lunn at ¶ 7; Dkt. No. 49, Decl. of Cooper at ¶¶ 3-14, 17-20. The stakes are high, and the obstacles to success can loom even higher.

Discussion

The elements to be established prior to the issuance of injunctive relief are well-known:

1. Likelihood of success on the merits

2. Irreparable harm in the absence of the injunction

3. A balance of equities which favors the moving party

4. The existence of a public interest which favors the injunction

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).

Here in the Ninth Circuit a "sliding scale" approach to this analysis is utilized – if the balance of hardships tips sharply in favor of the moving party, that party is only required to demonstrate claims that raise serious legal questions, as well as meet the other two criteria. See, e.g., Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-35 (9th Cir. 2011).

1. Likelihood of success on the merits

Prior to addressing the substantive merits of the claims of the Bond Hearing Class, the Court turns briefly to the Defendants' argument that these Plaintiffs have no standing to bring this motion because they have no cognizable injury; i.e., they are no longer being detained and have been given bond hearings. The Court has previously addressed the recognized right of these class representatives to prosecute "inherently transitory" claims (claims which by their nature may expire for any one individual during the course of the litigation) for those remaining members of the class who are still being injured by the policy or practice. See Sosna v. Iowa, 419 U.S. 393, 402, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) ; (Dkt. No. 102, Order Certifying Class at 8.)

Further, there is ample precedent for the granting of injunctive relief on behalf of a class at the behest of class representatives who were not suffering the complained-of injury at the time of the request. See Hernandez v. Sessions, 872 F.3d 976, 986 (9th Cir. 2017) (injunction granted concerning certain bond determination practices although Plaintiffs were no longer in custody); Ms. L. v. ICE, 310 F.Supp.3d 1133, 1146-47 (S.D. Cal. 2018) (enjoining immigrant family separation even though Plaintiffs were already reunited with their children); R.I.L-R v. Johnson, 80 F.Supp.3d 164, 191 (D.D.C. 2015) (enjoining a detention policy at the request of Plaintiffs who had been previously released).

Turning to the likelihood of success on the merits, the parties are in agreement that these issues should be analyzed using the balancing test enunciated in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), which calls for the court to weigh:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

A. Private interest

It has long been recognized that immigration detainees have a constitutionally-protected interest in their freedom. Zadvydas v. Davis, 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). The Ninth Circuit has recognized that, in the...