Rodriguez v. Robbins

• Decision Date: 16 April 2013
• Docket Number: No. 12–56734.,12–56734.
• Citation: 715 F.3d 1127
• Parties: Alejandro RODRIGUEZ; Abdirizak Aden Farah; Jose Farias Cornejo; Yussuf Abdikadir; Abel Perez Ruelas, for themselves and on behalf of a class of similarly-situated individuals, Petitioners–Appellees, and Efren Orozco, Petitioner, v. Timothy ROBBINS, Field Office Director, Los Angeles District, Immigration and Customs Enforcement; Janet Napolitano, Secretary, Homeland Security; Eric H. Holder, Jr., Attorney General; Wesley Lee, Assistant Field Office Director, Immigration and Customs Enforcement; Rodney Penner, Captain, Mira Loma Detention Center; Sandra Hutchens, Sheriff of Orange County; Officer Nguyen, Officer–in–Charge, Theo Lacy Facility; Captain Davis Nighswonger, Commander, Theo Lacy Facility; Captain Mike Kreuger, Operations Manager, James A. Musick Facility; Arthur Edwards, Officer–in–Charge, Santa Ana City Jail; Russell Davis, Jail Administrator, Santa Ana City Jail; Juan P. Osuna, Director, Executive Office for Immigration Review, Respondents–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

715 F.3d 1127

Alejandro RODRIGUEZ; Abdirizak Aden Farah; Jose Farias Cornejo; Yussuf Abdikadir; Abel Perez Ruelas, for themselves and on behalf of a class of similarly-situated individuals, Petitioners–Appellees,

and

Efren Orozco, Petitioner,

v.Timothy ROBBINS, Field Office Director, Los Angeles District, Immigration and Customs Enforcement; Janet Napolitano, Secretary, Homeland Security; Eric H. Holder, Jr., Attorney General; Wesley Lee, Assistant Field Office Director, Immigration and Customs Enforcement; Rodney Penner, Captain, Mira Loma Detention Center; Sandra Hutchens, Sheriff of Orange County; Officer Nguyen, Officer–in–Charge, Theo Lacy Facility; Captain Davis Nighswonger, Commander, Theo Lacy Facility; Captain Mike Kreuger, Operations Manager, James A. Musick Facility; Arthur Edwards, Officer–in–Charge, Santa Ana City Jail; Russell Davis, Jail Administrator, Santa Ana City Jail; Juan P. Osuna, Director, Executive Office for Immigration Review, Respondents–Appellants.

No. 12–56734.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted March 4, 2013.

Filed April 16, 2013.

Theodore W. Atkinson (argued), Stuart F. Delery, August Flentje, David J. Kline, United States Department of Justice, Washington, D.C., for Appellants.

Ahilan T. Arulanantham (argued), Michael Kaufman, ACLU Foundation of Southern California, Los Angeles, CA; Judy Rabinovitz and Michael Tan, ACLU Immigrants' Rights Project, New York, NY; Jayashri Srikantiah, Stanford Law School Immigrants' Rights Clinic, Stanford, CA; Sean Commons and Cody Jacobs, Sidley Austin LLP, Los Angeles, CA, for Appellees.

Angel L. Tang, Marco J. Martemucci, and Elizabeth S. St. John, Arnold & Porter LLP, Los Angeles, CA, for Amici Curiae professors and researchers of sociology, criminology, anthropology, and law.

Sarah H. Paoletti, Elizabeth Freed, and Suniti Mehta, University of Pennsylvania Law School Transnational Legal Clinic, Philadelphia, PA, for Amici Curiae international law professors and human rights clinics and clinicians.

Appeal from the United States District Court for the Central District of California, Terry J. Hatter, Senior District Judge, Presiding. D.C. No. 2:07–cv–03239–TJH–RNB.

Before KIM McLANE WARDLAW and RONALD M. GOULD, Circuit Judges, and SAM E. HADDON, District Judge.^*

OPINION

WARDLAW, Circuit Judge:

Alejandro Rodriguez, Abdirizak Aden Farah, Jose Farias Cornejo, Yussuf Abdikadir, and Abel Perez Ruelas (“Appellees”) are the named plaintiffs representing a certified class of non-citizens who challenge their prolonged detention, pursuant to certain federal immigration statutes, without individualized bond hearings and determinations to justify their continued detention.¹ The district court entered a preliminary injunction requiring the government to identify all class members detainedpursuant to 8 U.S.C. §§ 1226(c) and 1225(b) (the “1226(c) subclass” and “1225(b) subclass,” respectively), and to “provide each of them with a bond hearing before an Immigration Judge with power to grant their release.” Under the preliminary injunction, at the conclusion of each bond hearing, the Immigration Judge (“IJ”) “shall release each Subclass member on reasonable conditions of supervision, including electronic monitoring if necessary, unless the government shows by clear and convincing evidence that continued detention is justified based on his or her danger to the community or risk of flight.” ² The government appeals that order, and we affirm.

I.

At any given time, thousands of immigrants to the United States are detained while they await the conclusion of administrative and judicial proceedings that will determine whether they may remain in this country. According to the most recently available statistics, over 429,000 detainees were held by U.S. Immigration and Customs Enforcement (“ICE”) over the course of fiscal year 2011; on average, over 33,000 were detained on any given day.³ As of late 2011, the Los Angeles Field Office of ICE oversaw the detention of over 2,000 aliens, the great majority of whom were not subject to a final order of removal. Id. at 1.

This appeal concerns individuals detained in southern California for six months or longer under one of two federal immigration statutes. Section 1226(c) of Title 8 of the United States Code (“Section 1226(c)” or “§ 1226(c)”) subjects certain aliens who are deportable or inadmissible on account of their criminal history to mandatory detention pending proceedings to remove them from the United States.⁴If an ICE official determines that an individual's criminal history triggers application of § 1226(c), the alien is processed for detention. If the relevant ICE official is unsure whether § 1226(c) applies to a certain individual, he may consult an ICE attorney who is “embedded” in the field office. Detainees are permitted to ask an Immigration Judge to reconsider the applicability of mandatory detention, see8 C.F.R. § 1003.19(h)(2)(ii), but such review is limited in scope and addresses only whether the individual's criminal history falls within the statute's purview. See generally In re Joseph, 22 I. & N. Dec. 799 (B.I.A.1999).

Section 1225(b) of Title 8 (“Section 1225(b)” or “§ 1225(b)”), the other statute at issue here, applies to “applicants for admission,” such as those apprehended at the border or at a port of entry. The statute provides that “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained” for removal proceedings. 8 U.S.C. § 1225(b)(2)(A); see also8 U.S.C. § 1225(b)(1)(B)(iii)(IV) (providing for mandatory detention of asylum seekers “pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.”). Although Section 1225(b) generally mandates the detention of aliens seeking admission pending their removal proceedings, individuals detained under the statute may be eligible for discretionary parole from ICE custody. See8 U.S.C. § 1182(d)(5)(A).⁵ In the Central District of California, detainees are notified that they will be reviewed for parole and are asked to fill out a questionnaire and to submit to an interview with ICE officers to probe their suitability for parole. The agency considers the alien's potential dangerousness and criminal history, as well as flight risk, in making parole determinations. If a detainee is denied parole, he or she is notified orally and by a written form on which the explanation for the denial is conveyed through a checked box. Before the district court entered the preliminary injunction, parole was the only possible release mechanism available to most 1225(b) subclass members.

Appellees argue that prolonged mandatory detention under these statutes without any possibility for review of the government's justification for their imprisonment by a neutral arbiter would raise grave constitutional concerns. Thus, relying on a related series of our decisions, Appellees requested a preliminary injunction guaranteeing them, when their detention exceeds six months in duration, an individualized determination of whether their continued detention is necessitated by any flight risk or possible danger to the community. The government argues that both statutes unambiguously require mandatory detention with no limit on the duration of imprisonment and that the Supreme Court has repeatedly affirmed the federal government's constitutional and statutory authority to require such detention. We agree with the district court that, based on our precedent, the canon of constitutional avoidance requires us to construe the government's statutory mandatory detention authority under Section 1226(c) and Section 1225(b) as limited to a six-month period, subject to a finding of flight risk or dangerousness.

II.

“The district court's grant of a preliminary injunction is reviewed for abuse of discretion and should be reversed if the district court based its decision on an erroneous legal standard or on clearly erroneous findings of fact.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir.2009) (internal quotation marks omitted). “The district court's interpretation of the underlying legal principles, however, is subject to de novo review.” Id. An overbroad injunction is an abuse of discretion. Id.

III.

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). To determine whether the district court abused its discretion in entering the preliminary injunction, then, we consider in turn: (1) Appellees' likelihood of success on the merits; (2) whether they have established a likelihood of irreparable harm; (3) the balance of equities; and (4) where the public interest lies.⁶

A. Likelihood of Success on the Merits

Appellees claim that the federal immigration detention statutes must be construed to require “rigorous bond hearings” for members of the 1226(c) and 1225(b) subclasses. They urge that, because prolonged mandatory detention without a bond hearing would raise grave constitutional concerns, we must read the statutes in a way that permits the possibility of release on review by a neutral decision-maker. It is “a cardinal principle” of statutory interpretation that, “if a serious doubt of constitutionality is raised” by one possible construction of a statute, we must “ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 76 L.Ed. 598 (1932). “The canon favoring constructions of statutes to avoid constitutionalquestions does not, however, license a court to usurp the...