Abdi v. Nielsen, 287 F. Supp. 3d 327

Background

Plaintiffs (Abdi and Barrios Ramos) brought a class action on behalf of arriving asylum-seekers detained at Buffalo FDC who passed credible fear interviews and had not been granted parole; the Court granted a preliminary injunction on Nov. 17, 2017 requiring parole adjudications and Lora‑style individualized bond hearings for detainees held six months or more.
Plaintiffs moved to clarify whether the Court’s injunction requires Immigration Judges (IJs), once they decide release is appropriate, to consider detainees’ ability to pay and alternatives to detention when setting bond.
Respondents appealed the Nov. 17, 2017 decision but submitted transcripts of five bond hearings; they argued the clarification seeks new relief outside the injunction and is barred by 8 U.S.C. § 1226(e) and by failure to exhaust administrative remedies.
Plaintiffs argued (and the Court found) that the clarification only interprets the scope of the existing injunction and is necessary to supervise its enforcement and to avoid due process concerns about prolonged detention.
The Court held it retained jurisdiction under Rule 62(c) to clarify its injunction during the interlocutory appeal, and that Lora and due process principles imply that IJs must consider ability to pay and alternative conditions of release when setting bond.
The Court ordered that (1) IJs must consider ability to pay and alternatives to detention when setting bond for subclass members; (2) for those already given hearings but still detained, hearings must be recalendared and records reopened; and (3) Respondents must notify class counsel of upcoming bond hearings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court may clarify its injunction during an interlocutory appeal	Court may clarify/supervise injunction under Rule 62(c) to preserve status quo	Appeal divests district court of jurisdiction over substantive rights	Court retained jurisdiction to clarify to supervise enforcement and preserve effectiveness of injunction
Whether Lora‑style bond hearings must include consideration of ability to pay and alternatives to detention	Such consideration is implicit in Lora and necessary to avoid detention based on indigence and to ensure bond reasonably relates to government interests	No binding precedent requires IJs to consider these factors; bond determinations are discretionary and §1226(e) bars review	Court: Once IJ decides release is appropriate, IJ must consider detainee's ability to pay and alternative release conditions when setting bond
Whether §1226(e) bars the court's clarification or relief	Plaintiffs seek interpretation of the injunction/statutory process, not review of discretionary IJ decisions	§1226(e) forbids judicial review of bond/detention decisions	Court: §1226(e) doesn’t bar clarification of court’s injunction or requests vindicating statutory/process rights under the injunction
Whether administrative exhaustion (BIA appeal) is required before seeking clarification	Exhaustion not required to challenge compliance with court-ordered Lora hearings; exhaustion would be futile because BIA has treated ability-to-pay as not required	Plaintiffs should exhaust administrative remedies; BIA sometimes reduces bond on appeal	Court: Exhaustion not required here; alternatively exhausted requirement excused as futile given BIA precedent and the motion merely enforces/clarifies the court's order

Key Cases Cited

Zadvydas v. Davis, 533 U.S. 678 (2001) (detention must bear reasonable relation to its purpose; used to assess limits on prolonged immigration detention)
Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015) (Six‑month rule: detainees must receive bail hearing to avoid constitutional problems from prolonged detention)
Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013) (due process concerns support procedural protections against prolonged detention)
Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015) (affirming requirement that IJs consider alternatives to detention when setting bond)
Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017) (holding IJs must consider detainee’s financial circumstances and nonmonetary alternatives when detainee is neither dangerous nor a flight risk)
Demore v. Kim, 538 U.S. 510 (2003) (discussed limits of mandatory detention and Justice Kennedy’s concurrence on risks of indefinite detention)
Bearden v. Georgia, 461 U.S. 660 (1983) (probation revocation solely for inability to pay is fundamentally unfair — analogized to detention based on indigence)
Williams v. Illinois, 399 U.S. 235 (1970) (equal protection/limits on incarceration based on economic status)
Stack v. Boyle, 342 U.S. 1 (1951) (bail cannot be set higher than reasonably necessary to ensure appearance)