ALEJANDRO RODRIGUEZ, for himself and on behalf of a class of similarly-situated individuals; ABDIRIZAK ADEN FARAH, for himself and on behalf of a class of similarly-situated individuals; JOSE FARIAS CORNEJO; YUSSUF ABDIKADIR; ABEL PEREZ RUELAS, Petitioners-Appellees/ Cross-Appellants,
DAVID MARIN, Field Office Director, Los Angeles District, Immigration and Customs Enforcement; KIRSTJEN NIELSEN, Secretary, Homeland Security; MATTHEW G. WHITAKER, Acting 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; Nguyen, Officer, Officer-in-Charge, Theo Lacy Facility; DAVIS NIGHSWONGER, Captain, Commander, Theo Lacy Facility; MIKE KREUGER, Captain, Operations Manager, James A. Musick Facility; ARTHUR EDWARDS, Officer-in-Charge, Santa Ana City Jail; RUSSELL DAVIS, Jail Administrator, Santa Ana City Jail; JAMES MCHENRY, Director, Executive Office for Immigration Review, Respondents-Appellants/ Cross-Appellees. and EFREN OROZCO, Petitioner,
and Submitted October 29, 2018 Pasadena, California
Remand From The United States Supreme Court D.C. No.
Before: Kim McLane Wardlaw and Ronald M. Gould, Circuit
Judges, and Sam E. Haddon, [*] District Judge.
Jennings v. Rodriguez, 138 S.Ct. 830 (2018), the
Supreme Court held that we misapplied the canon of
constitutional avoidance to hold that certain immigration
detention statutes, namely 8 U.S.C. §§ 1225(b),
1226(a), and 1226(c), implicitly contain a reasonableness
determination after which due process concerns require that
persons in prolonged mandatory detention are entitled to
individualized bond hearings and possibly, conditional
release. Although the Court sought and received briefing on
the straightforward constitutional question, i.e. without the
implicit requirement of due process for persons in arbitrary
prolonged detention, whether these detention statutes are
constitutional, it declined to reach the constitutional
question. The Court instead chose to answer only the question
whether the statutory text itself included a limit on
prolonged detention or a requirement of individual bond
hearings. In an opinion authored by Justice Alito, the Court
concluded that as a matter of statutory construction, the
only exceptions to indefinite detention were those expressly
set forth in the statutes or related regulations.
See 8 U.S.C. § 1182(d)(5)(A) (humanitarian
parole); 8 U.S.C. § 1226(a)(2)(A) (bond); 8 U.S.C.
§ 1226(c)(2) (witness protection); 8 C.F.R. §§
236.1(d)(1), 1236.1(d)(1) (bond hearing).
Court then remanded the constitutional issues to our court,
and we now, taking our cue from it, likewise remand this case
to the district court, which
had no occasion to consider [petitioners'] constitutional
arguments on their merits. Consistent with our role as
"a court of review, not of first view," we do not
reach those arguments. Instead, we remand the case to the
[district court] to consider them in the first instance.
Rodriguez, 138 S.Ct. at 851 (citation omitted).
Court also decided to give us some homework on issues not
raised by the parties, asking us to reexamine whether the
class should remain certified for consideration of the
constitutional issues and available class remedies and
whether a Rule 23(b)(2) class action remains the appropriate
vehicle in light of Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338 (2011), and as a means for resolving
petitioners' due process clause claims. The composition
of the various subclasses may also require reconsideration.
Because district courts have vastly more experience with
class litigation than appellate courts, we also remand these
questions to the district court to be decided in the first
purposes of this analysis, the district court should
determine "the minimum requirements of due process"
for each subclass. Morrissey v. Brewer, 408 U.S.
471, 488-89 (1972) (requiring specific procedural protections
in the context of parole revocations). Although due process
is a "flexible" concept, id. at 481,
certainly no process at all may be a common characteristic of
each of the statutes at issue. "The fundamental
requirement of due process is the opportunity to be heard at
a meaningful time and in a meaningful manner."
Mathews v. Eldridge, 424 U.S. 319, 333 (1976)
(internal quotation marks and citation omitted). The district
court should also reassess and reconsider both the clear and
convincing evidence standard and the six-month bond hearing
not remand the question of jurisdiction over this habeas
claim, as it is clear that we have jurisdiction over
petitioners' claims, as does the district court. First,
we have jurisdiction under 8 U.S.C. § 1252(f)(1), which
states that "no court (other than the Supreme Court)
shall have jurisdiction or authority to enjoin or restrain
the operation of [§§ 1221-1232], other than with
respect to the application of such provisions to an
individual alien against whom proceedings under such part
have been initiated." All of the individuals in the
putative class are "individual[s] against whom
proceedings under such part have been initiated" and are
pursuing habeas claims, albeit as a class, which nowhere
appear affected by § 1252(f)(1). The statute does not on
its face bar class actions, and even if Reno v.
American-Arab Anti-Discrimination Committee forecloses
the argument that § 1252(f)(1) allows classwide
injunctive relief, it does not affect classwide declaratory
relief. 525 U.S. 471, 481 (1999). Section 1252(f)(1) also
does not bar the habeas class action because it lacks a clear
statement repealing the court's habeas
jurisdiction.I.N.S. v. St. Cyr, 533 U.S. 289,
298 (2001) (relying on "the longstanding rule requiring
a clear statement of congressional intent to repeal habeas
jurisdiction" (citation omitted)).
8 U.S.C. § 1252(b)(9) does not preclude jurisdiction.
Section 1252(b)(9) restricts "[j]udicial review of all
questions of law and fact . . . arising from any action taken
or proceeding brought to remove an alien," except review
of final orders of removal. Here, Petitioners "are not
asking for review of an order of removal; they are not
challenging the decision to detain them in the first place or
to seek removal; and they are not even challenging any part
of the process by which their removability will be
determined." Rodriguez, 138 S.Ct. at 841.
8 U.S.C. § 1226(e) does not preclude jurisdiction.
Section 1226(e) prohibits judicial review of the Attorney
General's "discretionary judgment,"
"action," or "decision" regarding the
apprehension, detention, or release of a noncitizen. Here,
"contesting the constitutionality of the entire
statutory scheme under the Fifth Amendment . . . is not a
matter of discretionary judgment, action, or decision"
and thus "falls outside of the scope of §
1226(e)." Rodriguez, 138 S.Ct. at 841 (internal
quotation marks omitted).
the Supreme Court, we do not vacate the permanent injunction
pending the consideration of these vital constitutional
issues. We have grave doubts that any statute that allows for
arbitrary prolonged detention without any process is
constitutional or that those who founded our democracy
precisely to protect against the government's arbitrary
deprivation of liberty would have thought so. Arbitrary civil
detention is not a feature of our American government.
"[L]iberty is the norm, and detention prior to trial or
without trial is the carefully limited exception."
United States v. Salerno, 481 U.S. 739, 755 (1987).
Civil detention violates due process outside of "certain
special and narrow nonpunitive circumstances."
Zadvydas v. Davis, 533 U.S. 678, 690 (2001)
(internal quotation marks and citation omitted). As Justice
Breyer wrote in Rodriguez,
The Fifth Amendment says that "[n]o person shall be . .
. deprived of life, liberty, or property without due process
of law." An alien is a "person." To hold him
without bail is to deprive him of bodily "liberty."
And, where there is no bail proceeding, there has been no
bail-related "process" at all. The Due Process
Clause-itself reflecting the ...