388 F. Supp. 3d 1218
S.D. Cal.2019Background
- Putative class action by detained noncitizens in Southern District of California challenging one- to three-month delays before an initial Master Calendar Hearing (first appearance/presentment) before an immigration judge.
- Three named plaintiffs: Cancino (detained 20 days), Hernandez (30 days), Gonzalez (112 days; presented at port of entry).
- Plaintiffs asserted substantive and procedural Fifth Amendment due process claims and APA claims (5 U.S.C. § 706(1) and (2)) alleging a policy/practice of delayed presentment.
- Defendants moved to dismiss arguing immigration detention is civil, that existing statutory/regulatory safeguards suffice, Gonzalez (an arriving alien) lacks due process beyond Congress-provided procedures, and APA claims are nonjusticiable or unfinal.
- Court denied dismissal of substantive due process claims and procedural due process claims for Cancino and Hernandez, dismissed Gonzalez’s procedural claim (entry fiction), dismissed APA §706(1) claims, and allowed APA §706(2) claims to proceed; directed defendants to answer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether detained noncitizens possess a substantive due process right to prompt presentment before an IJ | Prompt presentment is a protected liberty interest; prolonged detention without appearance shocks the conscience | Immigration detention is civil and subject to plenary immigration power; no established right in immigration context | Court: Plaintiffs plausibly alleged a substantive due process right; claims survive dismissal |
| Whether procedural due process (Mathews balancing) requires a prompt IJ hearing for detained noncitizens | Liberty interest is fundamental; delays create meaningful risk of erroneous detention; prompt IJ presentment and neutrality are valuable and not shown to impose undue burden | Existing procedures (48-hour custody review by DHS officer, advisals, ability to seek custody redetermination) suffice; burdens on courts/ICE would be significant | Court: On pleadings, Cancino and Hernandez stated plausible procedural due process claims; denial of dismissal |
| Whether the "entry fiction" bars Gonzalez (arriving alien) from due process claims | Plaintiffs: entry fiction should not apply to challenge here | Defendants: arriving alien has only congressionally provided procedural protections | Court: Entry fiction bars Gonzalez’s procedural due process claim but does not bar his substantive due process claim; procedural claim dismissed, substantive claim survives |
| Whether APA claims are reviewable and sufficiently pleaded (final agency action; §706(1) and (2)) | Plaintiffs: challenge to an alleged policy/practice is final agency action; seek relief under §706(2) | Defendants: claims rooted in delay are nonfinal/nonreviewable; APA does not create additional rights beyond INA; §706(1) and some §706(2) theories fail | Court: Dismissed §706(1) claims without prejudice; found plaintiffs adequately alleged a final policy and allowed §706(2) claims to proceed (including constitutional §706(2)(B)) |
Key Cases Cited
- Zadvydas v. Davis, 533 U.S. 678 (U.S. 2001) (liberty interest in freedom from imprisonment and limits on immigration detention)
- Demore v. Kim, 538 U.S. 510 (U.S. 2003) (upholding limited detention during removal proceedings)
- Reno v. Flores, 507 U.S. 292 (U.S. 1993) (substantive and procedural due process framework in immigration context)
- Mathews v. Eldridge, 424 U.S. 319 (U.S. 1976) (three-factor balancing test for procedural due process)
- Gerstein v. Pugh, 420 U.S. 103 (U.S. 1975) (probable-cause judicial determination required for extended post-arrest restraint)
- Foucha v. Louisiana, 504 U.S. 71 (U.S. 1992) (freedom from imprisonment at core of liberty protected by Due Process Clause)
- Coleman v. Frantz, 754 F.2d 719 (7th Cir. 1985) (18‑day post-arrest detention without appearance violates due process)
- Armstrong v. Squadrito, 152 F.3d 564 (7th Cir. 1998) (civil detention resembling criminal confinement implicates prompt appearance right)
- Hayes v. Faulkner County, 388 F.3d 669 (8th Cir. 2004) (extended detention without first appearance forbidden by Due Process)