64 F. Supp. 3d 271
D. Mass.2014Background
- Plaintiff filed a class action for aliens detained in Massachusetts under 8 U.S.C. § 1226(c) for longer than six months without individualized bond hearings; the court previously granted habeas relief, certified the class, and entered a remedial order requiring bond hearings after six months.
- Defendants declined to treat certain detainees as class members, arguing that once an administrative removal order is final (or during a 90-day removal period under § 1231), those individuals are detained under § 1231 rather than § 1226(c).
- Plaintiff moved to enforce or modify the class certification and for limited discovery to identify class members who had not been afforded hearings, and asked that class counsel be notified of scheduled bond hearings.
- The court addressed four contested categories: (1) detainees with stays or stay motions pending in courts of appeals; (2) detainees who received final administrative removal orders after six months (split pre- and post-Reid III); (3) detainees who received final orders before Reid III; and (4) detainees whose petitions for review/motions to reopen were later granted.
- The court concluded that except for detainees who already had final removal orders as of the remedial-order date (May 27, 2014), the disputed categories are governed by § 1226 and therefore are class members entitled to bond hearings; individuals who obtained final orders after the remedial order vested the right to a hearing and Defendants’ failure to provide one was noncompliance.
- The court allowed Plaintiff’s motion in part: it clarified class scope, required the parties to confer about informal discovery and class notice, and directed that class members may opt to have class counsel notified of bond-hearing dates and times.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether detainees with stays or pending stay motions in a court of appeals are governed by § 1226(c) or § 1231(a) | Reid: stays/pending appeals prevent the § 1231 "removal period" from beginning, so detention remains under § 1226(c) and they are class members | Donelan: an administratively final removal order places detainees into § 1231 removal-period custody, excluding them from the § 1226(c) class | Court: statute requires the "removal period" to begin on the latest of listed events; stays/pending appeals keep detainees under § 1226 — they are class members |
| Whether detainees who received final administrative removal orders before May 27, 2014 remain entitled to relief | Reid: fairness and anti-dilatory concerns support treating pre-Reid III class members as entitled to hearings | Donelan: once final order issued pre-Reid III, detainees are under § 1231 and not covered by the remedial order | Court: those with final orders before May 27, 2014 are not covered by Reid III; they were not entitled to relief after the remedial order’s issuance |
| Whether detainees who received final administrative removal orders after May 27, 2014 are entitled to bond hearings | Reid: right to a hearing vests at six months; if six-month mark passed before final order, the detainee must receive the court-ordered hearing despite later transfer to § 1231 | Donelan: once final order issued (even after six months), detainees become § 1231 and fall outside the class | Court: for detainees who were class members on May 27, 2014, entitlement to a hearing vested; Defendants’ failure to provide hearings post-Remedial Order was noncompliance |
| Whether class counsel may be notified of calendared bond hearing dates over privacy/representation concerns | Reid: counsel should be notified so pro bono counsel can appear and represent class members | Donelan: notifying counsel without a prior attorney-client relationship raises privacy and ethical problems; Reid III required notice only to class members | Court: permit class-member opt-in: notice to class counsel if the detainee requests counsel notification; parties to draft notice language |
Key Cases Cited
- Zadvydas v. Davis, 533 U.S. 678 (U.S. 2001) (reasonableness limit on immigration detention informs construction of detention statutes)
- Demore v. Kim, 538 U.S. 510 (U.S. 2003) (Supreme Court precedent addressing detention under immigration statutes)
- Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013) (six-month reasonableness threshold for prolonged immigration detention)
- Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008) (statutory reading: removal period does not commence while stay or judicial review pending)
- Bourguignon v. MacDonald, 667 F. Supp. 2d 175 (D. Mass. 2009) (district court decision on detention and individualized consideration)
- Leslie v. Attorney General, 678 F.3d 265 (3d Cir. 2012) (holding § 1231 does not authorize detention during stay pending judicial review)
- Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003) (same conclusion about applicability of § 1226 during appellate stays)
- Bejjani v. INS, 271 F.3d 670 (6th Cir. 2001) (similar treatment of detention authority during appeals)