22 F.4th 240
1st Cir.2021Background
- Three named plaintiffs (Brito, Avila Lucas, Celicourt) were detained by ICE under 8 U.S.C. § 1226(a) (discretionary pre-removal detention) and lost bond hearings where agency practice placed the burden on detainees to prove they were not dangerous or a flight risk.
- Plaintiffs sued for classwide declaratory and injunctive relief, arguing the Due Process Clause requires the government to bear the burden: dangerousness by clear and convincing evidence and flight risk by a preponderance; they also sought IJ consideration of ability to pay and alternatives to detention.
- The district court certified two subclasses (pre-hearing and post-hearing detainees), granted summary judgment, and issued a declaratory judgment and a permanent injunction imposing the burden rules and requiring ability-to-pay and alternatives consideration.
- ICE later released the named plaintiffs; the district court denied mootness under the transitory-class exception, and both sides appealed.
- The First Circuit, relying on its Hernandez-Lara decision, affirmed the declaratory ruling about the government’s burden at bond hearings, but held the district court lacked authority under 8 U.S.C. § 1252(f)(1) to issue the classwide injunction and also found plaintiffs lacked standing on the ability-to-pay claim and failed to exhaust administrative remedies for the alternatives-to-detention claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Burden of proof at §1226(a) bond hearings | Gov't must prove dangerousness by clear and convincing evidence or flight risk by preponderance; IJs must consider alternatives and ability to pay | Government defended current practice but Hernandez-Lara resolved burden question | Affirmed that gov't bears burden (danger = clear and convincing; flight = preponderance) per Hernandez-Lara |
| §1252(f)(1) and classwide injunctive relief | District court may enter classwide injunction enforcing constitutional procedures for all class members | §1252(f)(1) bars courts (other than SCOTUS) from enjoining operation of §§1221–1232 on a classwide basis | Majority: classwide injunction vacated as restrained operation of §1226(a) under §1252(f)(1); dissent would allow class injunctive relief |
| Availability of declaratory relief under §1252(f)(1) | Declaratory relief remains available even if injunctions are limited | Government did not press a bar on declaratory relief | Declaratory relief not barred by §1252(f)(1); district court declaration on burden survives in part |
| Standing for "ability to pay" claim | Named plaintiffs can challenge failure to consider ability to pay | Lack of standing because IJs never set bond amounts for named plaintiffs | Plaintiffs lack standing to pursue ability-to-pay claim |
| Exhaustion for alternatives-to-detention claim | Plaintiffs not required to exhaust before IJs | Plaintiffs failed to present alternatives claim to IJs; must exhaust | Claim is unexhausted; court declined to reach merits (administrative exhaustion required) |
Key Cases Cited
- Hernandez-Lara v. Lyons, 10 F.4th 19 (1st Cir. 2021) (held gov't must bear burden at §1226(a) bond hearings: danger by clear and convincing or flight risk by preponderance)
- Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (discussed §1252(f)(1) and remanded for consideration whether classwide injunctive relief enjoins operation of immigration statutes)
- Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (Supreme Court language limiting classwide injunctive relief under §1252(f)(1))
- Nken v. Holder, 556 U.S. 418 (2009) (reiterated AADC dictum regarding §1252(f)(1))
- Zadvydas v. Davis, 533 U.S. 678 (2001) (constitutional-avoidance canon and limits on statutory discretion language)
- Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) (standing: concrete and particularized injury required)
- McCarthy v. Madigan, 503 U.S. 140 (1992) (administrative exhaustion principles)
- Sayyah v. Farquharson, 382 F.3d 20 (1st Cir. 2004) (application of statutory exhaustion to habeas challenges)
- Padilla v. ICE, 953 F.3d 1134 (9th Cir. 2020) (held §1252(f)(1) did not bar classwide injunctive relief in that context; persuasive circuit analysis)