Xochitl Hernandez v. Jefferson Sessions
2017 U.S. App. LEXIS 19021
| 9th Cir. | 2017Background
- Class action by non-citizens detained under 8 U.S.C. §1226(a) in Central District of California who were found not to be dangerous or so high a flight risk as to bar bond but remained detained because they could not afford bonds set by ICE or Immigration Judges (IJs).
- Plaintiffs challenged government practice of setting bond amounts without requiring consideration of detainees’ financial ability or non‑monetary alternatives (e.g., electronic monitoring), seeking class certification and a preliminary injunction.
- District court certified the class, waived prudential exhaustion, and entered a preliminary injunction mandating that ICE and IJs consider ability to pay and alternative conditions and provide new redetermination hearings for current detainees; government appealed and obtained a stay of the injunction pending appeal.
- Ninth Circuit addressed jurisdictional defenses (8 U.S.C. §§1226(e), 1252(a)(2)(B) and exhaustion) and the merits of the injunction under the Winter/Mathews framework.
- The court held plaintiffs’ constitutional challenge to the bond‑setting process is cognizable in habeas/federal court, prudential exhaustion was properly waived, and that due process likely requires consideration of financial circumstances and alternatives to monetary bond; affirmed the preliminary injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction: Do §§1226(e) or 1252(a)(2)(B) bar review? | Bond‑setting process is constitutionally flawed and raises questions of law/civil rights cognizable on habeas. | Statutory bars deprive courts of jurisdiction to review bond decisions. | Statutory bars do not preclude habeas review of colorable constitutional or legal claims about the process. |
| Prudential exhaustion | Waiver appropriate because claims are purely legal, administrative position is set, and exhaustion would be futile. | Plaintiffs should exhaust administrative remedies before federal habeas. | Waiver of prudential exhaustion was proper under Puga/Laing factors. |
| Due Process: Is consideration of ability to pay and alternatives required? | Failure to consider those factors leads to detention based on poverty and violates Fifth Amendment liberty interests. | Immigration context differs; government’s bond process is discretionary and sufficient without mandatory consideration of finances. | Plaintiffs likely to succeed: due process likely requires ICE/IJs to consider financial ability and alternative conditions when setting bond for detainees eligible for release. |
| Scope of relief (mandatory new hearings) | New hearings required for current detainees whose bonds were set under the unconstitutional process. | The order is an improper mandatory injunction altering the status quo and imposes undue burdens and deadlines. | Even assuming mandatory, the injunction was appropriate: unlawful detention is extreme irreparable harm and the merits are not doubtful; district court did not abuse its discretion. |
Key Cases Cited
- Zadvydas v. Davis, 533 U.S. 678 (U.S. 2001) (liberty from physical detention is core Fifth Amendment interest; due process applies to immigrants)
- Bearden v. Georgia, 461 U.S. 660 (U.S. 1983) (state may not incarcerate for failure to pay without considering ability to pay and alternatives)
- Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011) (habeas cognizable for constitutional challenges to discretionary immigration procedures)
- Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008) (procedure for initial custody determinations under §1226(a))
- Casas-Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942 (9th Cir. 2008) (Attorney General has discretionary authority under §1226(a); procedural protections required)
- Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978) (detention for inability to post money bail impermissible where alternatives ensure appearance)
- Mathews v. Eldridge, 424 U.S. 319 (U.S. 1976) (framework for identifying required procedural safeguards)
- Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015) (recurring bond hearings for prolonged §1226 detention and standards for periodic review)