Alejandro RODRIGUEZ; Abdirizak Aden Farah; Jose Farias Cornejo; Yussuf Abdikadir; Abel Perez Ruelas, for themselves and on behalf of a class of similarly situated individuals, Petitioners-Appellees/Cross-Appellants, and Efren Orozco, Petitioner, v. Timothy ROBBINS, Field Office Director, Los Angeles District, Immigration and Customs Enforcement; Jeh Johnson, Secretary, Homeland Security; Loretta E. Lynch, Attorney General; Wesley Lee, Assistant Field Office Director, Immigration and Customs Enforcement; Rodney Penner, Captain, Mira Loma Detention Center; Sandra Hutchens, Sheriff of Orange County; Nguyen, Officer, Officer-in-Charge, Theo Lacy Facility; Davis Nighswonger, Captain, Commander, Theo Lacy Facility; Mike Kreuger, Captain, Operations Manager, James A. Musick Facility; Arthur Edwards, Officer-in-Charge, Santa Ana City Jail; Russell Davis, Jail Administrator, Santa Ana City Jail; Juan P. Osuna, Director, Executive Office for Immigration Review, Respondents-Appellants/Cross-Appellees.
Nos. 13-56706, 13-56755
United States Court of Appeals, Ninth Circuit
October 28, 2015
Argued and Submitted July 24, 2015.
804 F.3d 1060
Nina Rabin, University of Arizona College of Law, Tucson, AZ, for Amici Curiae Social Science Researchers and Professors.
James H. Moon, James J. Farrell, Nathan M. Saper, Latham & Watkins LLP, Los Angeles, CA, for Amici Curiae National Association of Criminal Defense Lawyers and the Judge David L. Bazelon Center for Mental Health Law.
Sarah H. Paoletti, University of Pennsylvania Law School Transnational Legal Clinic, Philadelphia, PA, for Amici Curiae International Law Professors and Human Rights Clinicians and Clinical Programs.
Holly Stafford Cooper, University of California Davis Law School Immigration Law Clinic, Davis, CA, for Amicus Curiae University of California Davis Law School Immigration Law Clinic.
Sarah Stevens Wilson (argued), Theodore William Atkinson, Hans Harris Chen, Alisa Beth Klein, Robert I. Lester, Jaynie R. Lilley, Benjamin C. Mizer, Nicole Prairie, and Erez Reuveni, United States Department of Justice, Washington, D.C., for Respondents-Appellants/Cross-Appellees.
Before: KIM McLANE WARDLAW and RONALD M. GOULD, Circuit Judges and SAM E. HADDON,** District Judge.
** The Honorable Sam E. Haddon, District Judge for the U.S. District Court for the District of Montana, sitting by designation.
WARDLAW, Circuit Judge:
This is the latest decision in our decade-long examination of civil, i.e. non-punitive and merely preventative, detention in the immigration context. As we noted in our prior decision in this case, Rodriguez v. Robbins (Rodriguez II), 715 F.3d 1127 (9th Cir.2013), thousands of immigrants to the United States are locked up at any given time, awaiting the conclusion of administrative and judicial proceedings that will determine whether they may remain in this country. In 2014, U.S. Immigration and Customs Enforcement (“ICE“) removed 315,943 individuals, many of whom were detained during the removal process.1 According to the most recently available statistics, ICE detains more than 429,000 individuals over the course of a year, with roughly 33,000 individuals in detention on any given day.2
Alejandro Rodriguez, Abdirizak Aden Farah, Jose Farias Cornejo, Yussuf Abdikadir, Abel Perez Ruelas, and Efren Orozco (“petitioners“) represent a certified class of noncitizens who challenge their prolonged detention pursuant to
I. Background
On May 16, 2007, Alejandro Garcia commenced this case by filing a petition for a writ of habeas corpus in the Central District of California. Garcia‘s case was consolidated with a similar case filed by Alejandro Rodriguez, and the petitioners moved for class certification. The motion was denied on March 21, 2008.
A three-judge panel of our court reversed the district court‘s order denying class certification.3 Rodriguez I, 591 F.3d 1105. We held that the proposed class satisfied each requirement of
The government petitioned our court for panel rehearing or rehearing en banc. In response, the panel amended the opinion to expand its explanation of why the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA“) does not bar certification of the class and, with that amendment, unanimously voted to deny the government‘s petition. The full court was advised of the suggestion for rehearing en banc, and no judge requested a vote on whether to rehear the matter. See
On remand, the district court certified a class defined as:
all non-citizens within the Central District of California who: (1) are or were detained for longer than six months pursuant to one of the general immigration detention statutes pending completion of removal proceedings, including judicial review, (2) are not and have not been detained pursuant to a national security detention statute, and (3) have not been afforded a hearing to determine whether their detention is justified.
The district court also approved the proposed subclasses, which correspond to the four statutes under which the class members are detained—
On September 13, 2012, the district court entered a preliminary injunction that applied to class members detained pursuant to two of these four “general immigration detention statutes“—§§ 1225(b) and 1226(c). Under the preliminary injunction, the government was required to “provide each [detainee] with a bond hearing” before an IJ and to “release each Subclass member on reasonable conditions of supervision ... unless the government shows by clear and convincing evidence that continued detention is justified based on his or her danger to the community or risk of flight.”
The government appealed, and on April 16, 2013, we affirmed. See Rodriguez II, 715 F.3d 1127. We applied the Court‘s preliminary injunction standard set forth in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), which requires the petitioner to “establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Rodriguez II, 715 F.3d at 1133.
Evaluating petitioners’ likelihood of success on the merits, we began with the premise that “[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.” Id. at 1134 (alterations in original) (quoting Zad-
Addressing those concerns, we recognized that we were not writing on a clean slate: “[I]n a series of decisions since 2001, ‘the Supreme Court and this court have grappled in piece-meal fashion with whether the various immigration detention statutes may authorize indefinite or prolonged detention of detainees and, if so, may do so without providing a bond hearing.‘” Id. (quoting Rodriguez I, 591 F.3d at 1114). First, in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), the Supreme Court resolved statutory and due process challenges to indefinite detention under
A statute permitting indefinite detention of an alien would raise a serious constitutional problem. The Fifth Amendment‘s Due Process Clause forbids the Government to “depriv[e]” any “person ... of ... liberty ... without due process of law.” Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects. See Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992). And this Court has said that government detention violates that Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections, see United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), or, in certain special and “narrow” nonpunitive “circumstances,” Foucha, supra, at 80, 112 S.Ct. 1780, where a special justification, such as harm-threatening mental illness, outweighs the “individual‘s constitutionally protected interest in avoiding physical restraint.” Kansas v. Hendricks, 521 U.S. 346, 356, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997).
Id. at 690, 121 S.Ct. 2491 (alterations in original). To avoid those “serious constitutional concerns,” the Court held that
Although in dissent, Justice Kennedy, joined by Chief Justice Rehnquist, disagreed with the majority‘s application of the canon of constitutional avoidance and argued that the holding would improperly interfere with international repatriation negotiations, Justice Kennedy recognized that “both removable and inadmissible aliens are entitled to be free from detention that is arbitrary or capricious.” Id. at 721, 121 S.Ct. 2491. Justice Kennedy further noted that although the government may detain non-citizens “when necessary to avoid the risk of flight or danger to the community,” due process requires “adequate procedures to review their cases, allowing persons once subject to detention to show that through rehabilitation, new appreciation of their responsibilities, or un-
Second, in Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), the Court addressed a due process challenge to mandatory detention under
After Zadvydas and Demore, our court decided several cases that provided further guidance for our analysis in Rodriguez II. In Tijani v. Willis, 430 F.3d 1241 (9th Cir.2005), we held that the constitutionality of detaining a lawful permanent resident under
We next considered civil detention in the immigration context in Casas-Castrillon v. Department of Homeland Security (Casas), 535 F.3d 942 (9th Cir.2008). There, a lawful permanent resident who had been detained for nearly seven years under
Soon after, in Singh v. Holder, 638 F.3d 1196 (9th Cir.2011), we clarified the procedural requirements for bond hearings held pursuant to our decision in Casas (”Casas hearings“). In light of “the substantial liberty interest at stake,” we held that “due process requires a contemporaneous record of Casas hearings,” and that the government bears the burden of proving “by clear and convincing evidence that an alien is a flight risk or a danger to the community to justify denial of bond.” Id. at 1203, 1208. To evaluate whether the government has met its burden, we instructed IJs to consider the factors set forth in In re Guerra, 24 I. & N. Dec. 37 (BIA 2006), in particular “the alien‘s criminal record, including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses.” Singh, 638 F.3d at 1206 (quoting Guerra, 24 I. & N. Dec. at 40).
Finally, in Diouf v. Napolitano (Diouf II), 634 F.3d 1081 (9th Cir.2011), we extended the procedural protections established in Casas to individuals detained under
In Diouf II, we also adopted a definition of “prolonged” detention—detention that “has lasted six months and is expected to continue more than minimally beyond six months“—for purposes of administering the Casas bond hearing requirement. Id. at 1092 n. 13. We reasoned that:
When detention crosses the six-month threshold and release or removal is not imminent, the private interests at stake are profound. Furthermore, the risk of an erroneous deprivation of liberty in the absence of a hearing before a neutral decisionmaker is substantial. The burden imposed on the government by requiring hearings before an immigration judge at this stage of the proceedings is therefore a reasonable one.
Applying these precedents to Rodriguez class members detained under
In so holding, we rejected the government‘s attempt to distinguish Casas on the
We also noted that our conclusion was consistent with the decisions of the two other circuits that have directly addressed this issue. In Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir.2011), the Third Circuit, applying the canon of constitutional avoidance, construed
Likewise, in Ly v. Hansen, 351 F.3d 263 (6th Cir.2003), the Sixth Circuit held that, to avoid a constitutional problem, removable non-citizens may be detained under
As to the Rodriguez subclass detained under
After establishing that class members detained under
Having found that the class was likely to succeed on the merits, we turned to the other preliminary injunction factors. We found that the class members “clearly face irreparable harm in the absence of the preliminary injunction” because “the deprivation of constitutional rights unquestionably constitutes irreparable injury.” Id. (citations omitted). The preliminary injunction safeguards constitutional rights by ensuring that “individuals whom the government cannot prove constitute a flight risk or a danger to public safety, and sometimes will not succeed in removing at all, are not needlessly detained.” Id. at 1145. Similarly, we found that the balance of equities favored the class members because “needless prolonged detention” imposes “major hardship,” whereas the government “cannot suffer harm from an injunction that merely ends an unlawful practice or reads a statute as required to avoid constitutional concerns.” Id. Finally, we held that the preliminary injunction was consistent with the public interest, which is “implicated when a constitutional right has been violated,” and “benefits from a preliminary injunction that ensures that federal statutes are construed and implemented in a manner that avoids serious constitutional questions.” Id. at 1146. We therefore affirmed the district court‘s order.
During the pendency of Rodriguez II, the parties conducted discovery, and class counsel adduced extensive evidence detailing the circumstances under which class members are detained. The parties then filed cross-motions for summary judgment, and the petitioners moved for a permanent injunction to extend and expand the preliminary injunction.
On August 6, 2013, after we issued our decision in Rodriguez II, the district court granted summary judgment to the class and entered a permanent injunction. The permanent injunction applies to class members detained under any of the four civil “general immigration detention statutes“—
The government now appeals from the entry of the permanent injunction, arguing that the district court—and we—erred in applying the canon of constitutional avoidance to each of the statutes at issue. Relying on the Supreme Court‘s decisions in Zadvydas and Demore, the government argues that none of the subclasses are categorically entitled to bond hearings after six months of detention. Accordingly, the government contends that we should decertify the class and instead permit as-applied challenges to individual instances
II. Nature of Civil Immigration Detention
Class members spend, on average, 404 days in immigration detention. Nearly half are detained for more than one year, one in five for more than eighteen months, and one in ten for more than two years. In some cases, detention has lasted much longer: As of April 28, 2012, when the government generated data to produce to the petitioners, one class member had been detained for 1,585 days, approaching four and a half years of civil confinement.4
Non-citizens who vigorously pursue claims for relief from removal face substantially longer detention periods than those who concede removability. Requesting relief from an IJ increases the duration of class members’ detention by an average of two months; appealing a claim to the BIA adds, on average, another four months; and appealing a BIA decision to the Ninth Circuit typically leads to an additional eleven months of confinement. Class members who persevere through this lengthy process are often successful: About 71% of class members have sought relief from removal, and roughly one-third of those individuals prevailed. However, many detainees choose to give up meritorious claims and voluntarily leave the country instead of enduring years of immigration detention awaiting a judicial finding of their lawful status.
Class members frequently have strong ties to this country: Many immigrated to the United States as children, obtained legal permanent resident status, and lived in this country for as long as twenty years before ICE initiated removal proceedings. As a result, hundreds of class members are married to U.S. citizens or lawful permanent residents, and have children who were born in this country. Further, many class members hold steady jobs—including as electricians, auto mechanics, and roofers—to provide for themselves and their families. At home, they are caregivers for young children, aging parents, and sick or disabled relatives. To the extent class members have any criminal record—and many have no criminal history whatsoever—it is often limited to minor controlled substances offenses. Accordingly, when class members do receive bond hearings, they often produce glowing letters of support from relatives, friends, employers, and clergy attesting to their character and contributions to their communities.
Prolonged detention imposes severe hardship on class members and their fami-
Lead petitioner Alejandro Rodriguez‘s story is illustrative. Rodriguez came to the United States as an infant and has lived here continuously since then. Rodriguez is a lawful permanent resident of the United States, and his entire immediate family—including his parents, siblings, and three young children—also resides in the United States as citizens or lawful permanent residents. Before his removal proceedings began, Rodriguez worked as a dental assistant. In 2003, however, Rodriguez was convicted of possession of a controlled substance and sentenced to five years of probation and no jail time. He had one previous conviction, for “joyriding.”
In 2004, ICE commenced removal proceedings and subjected Rodriguez to civil detention. An IJ determined that Rodriguez‘s prior conviction for “joyriding,” i.e. driving a stolen vehicle, qualified as an “aggravated felony” that rendered him ineligible for relief in the form of cancellation of removal, and therefore ordered him removed. Rodriguez appealed the IJ‘s decision to the BIA, which affirmed, and then to the Ninth Circuit. In July 2005, a three-judge panel of our court granted the government‘s motion to hold Rodriguez‘s case in abeyance until the Supreme Court decided a related case, Gonzales v. Penuliar, 549 U.S. 1178, 127 S.Ct. 1146, 166 L.Ed.2d 992 (2007), which issued eighteen months later, in January 2007. In Penuliar, the Supreme Court vacated our court‘s opinion and remanded for further consideration in light of Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007), which held that violating a California statute prohibiting taking a vehicle without the owner‘s consent qualifies as a “theft offense.” Between July 2005 and January 2007, while Rodriguez‘s case was in abeyance, ICE conducted four custody reviews on Rodriguez and repeatedly determined that Rodriguez was required to remain in detention until our court issued a decision on the merits of his claim. In mid-2007, about a month after Rodriguez had moved for class certification, however, ICE released him. At that point, Rodriguez had been detained for 1,189 days, roughly three years and three months. In April 2008, in the related case on remand from the Supreme Court, our court held that driving a stolen vehicle did not qualify as an aggravated felony. Penuliar v. Mukasey, 528 F.3d 603, 614 (9th Cir.2008). On motion of the parties, we then remanded Rodriguez‘s petition to the BIA, which granted his application for cancellation of removal, vindicating his right to lawfully remain in the United States.
III. Standard of Review
“We review a grant of summary judgment de novo.” Pavoni v. Chrysler Grp., LLC, 789 F.3d 1095, 1098 (9th Cir.2015). “A permanent injunction ‘involves factual, legal, and discretionary components,’ so we ‘review a decision to grant such relief under several different stan-
IV. Discussion
In resolving whether the district court erred in entering the permanent injunction, we consider, first, petitioners’ entitlement to bond hearings and, second, the procedural requirements for such hearings. Based on our precedents, we hold that the canon of constitutional avoidance requires us to construe the statutory scheme to provide all class members who are in prolonged detention with bond hearings at which the government bears the burden of proving by clear and convincing evidence that the class member is a danger to the community or a flight risk. However, we also conclude that individuals detained under
A. Civil Detention
“In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Civil detention violates the Due Process Clause except “in certain special and narrow non-punitive circumstances, where a special justification, such as harm-threatening mental illness, outweighs the individual‘s constitutionally protected interest in avoiding physical restraint.” Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491 (citations omitted). Consistent with these principles, the Supreme Court has—outside of the immigration context—found civil detention constitutional without any individualized showing of need only when faced with the unique exigencies of global war or domestic insurrection. See Ludecke v. Watkins, 335 U.S. 160, 68 S.Ct. 1429, 92 L.Ed. 1881 (1948); Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944); Moyer v. Peabody, 212 U.S. 78, 29 S.Ct. 235, 53 L.Ed. 410 (1909).6 And even in those extreme circumstances, the Court‘s
For example, in numerous cases addressing the civil detention of mentally ill persons, the Court has consistently recognized that such commitment “constitutes a significant deprivation of liberty,” and so the state “must have a constitutionally adequate purpose for the confinement.” Jones v. United States, 463 U.S. 354, 361, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983) (citations omitted). Further, the “nature and duration of commitment” must “bear some reasonable relation to the purpose for which the individual is committed.” Jones, 463 U.S. at 368, 103 S.Ct. 3043 (citation omitted).
Accordingly, the state may detain a criminal defendant found incapable of standing trial, but only for “the reasonable period of time necessary to determine whether there is a substantial probability that he will attain [the] capacity [to stand trial] in the foreseeable future.” Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). At all times, the individual‘s “commitment must be justified by progress toward that goal.” Id. Likewise, the state may detain a criminal defendant following an acquittal by reason of insanity in order to “treat the individual‘s mental illness and protect him and society from his potential dangerousness.” Jones, 463 U.S. at 368, 103 S.Ct. 3043. However, the detainee “is entitled to release when he has recovered his sanity or is no longer dangerous.” Id.; see also Foucha v. Louisiana, 504 U.S. 71, 78, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) (“[K]eeping Foucha against his will in a mental institution is improper absent a determination in civil commitment proceedings of current mental illness and dangerousness.“). Further, although the state may detain sexually dangerous individuals even after they have completed their criminal sentences, such confinement must “take[] place pursuant to proper procedures and evidentiary standards.” Kansas v. Hendricks, 521 U.S. 346, 357, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). To “justify indefinite involuntary commitment,” the state must prove both “dangerousness” and “some additional factor, such as a ‘mental illness’ or ‘mental abnormality.‘” Id. at 358, 117 S.Ct. 2072 (collecting cases).
Similarly, the Court has held that pretrial detention of individuals charged with “the most serious of crimes” is constitutional only because, under the Bail Reform Act, an “arrestee is entitled to a prompt detention hearing” to determine whether his confinement is necessary to prevent danger to the community. Salerno, 481 U.S. at 747, 107 S.Ct. 2095. Further, “the maximum length of pretrial detention is limited by the stringent time limitations of the Speedy Trial Act.” Id.; see also Schall v. Martin, 467 U.S. 253, 263, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984) (upholding a statute that “permits a brief pretrial detention based on a finding of a ‘serious risk’ that an arrested juvenile may commit a crime before his return date“).
In addition, the Court has held that incarceration of individuals held in civil contempt is consistent with due process only where the contemnor receives adequate procedural protections and the court makes specific findings as to the individual‘s ability to comply with the court order. See Turner v. Rogers, 564 U.S. 431, 131 S.Ct. 2507, 2520, 180 L.Ed.2d 452 (2011). If compliance is impossible—for instance,
Early cases upholding immigration detention policies were a product of their time. See Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952) (McCarthy Era deportation of communists); Ludecke v. Watkins, 335 U.S. 160, 68 S.Ct. 1429, 92 L.Ed. 1881 (1948) (removal of German enemy aliens during World War II); Wong Wing v. United States, 163 U.S. 228, 16 S.Ct. 977, 41 L.Ed. 140 (1896) (Chinese exclusion). Yet even these cases recognized some limits on detention of non-citizens pending removal. Such detention may not be punitive—Congress may not, for example, impose sentences of “imprisonment at hard labor” on non-citizens awaiting deportation, Wong Wing, 163 U.S. at 235, 16 S.Ct. 977—and it must be supported by a legitimate regulatory purpose. Under these principles, the Court authorized the “detention or temporary confinement” of Chinese-born non-citizens “pending the inquiry into their true character, and while arrangements were being made for their deportation.” Id. The Court also upheld executive detention of enemy aliens after the cessation of active hostilities because deportation is “hardly practicable” in the midst of war, and enemy aliens’ “potency for mischief” continues “even when the guns are silent.” Ludecke, 335 U.S. at 166, 68 S.Ct. 1429. Similarly, the Court approved detention of communists to limit their “opportunities to hurt the United States during the pendency of deportation proceedings.” Carlson, 342 U.S. at 538, 72 S.Ct. 525. The Court recognized, however, that “purpose to injure could not be imputed generally to all aliens subject to deportation.” Id. at 538, 72 S.Ct. 525. Rather, if the Attorney General wished to exercise his discretion to deny bail, he was required to do so at a hearing, the results of which were subject to judicial review. Id. at 543, 72 S.Ct. 525.
More recently, the Supreme Court has drawn on decades of civil detention jurisprudence to hold that “[a] statute permitting indefinite detention of an alien would raise a serious constitutional problem.” Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491. Although the state has legitimate interests in “ensuring the appearance of aliens at future immigration proceedings” and “protecting the community,” post-removal period detention does not uniformly “‘bear[] [a] reasonable relation to the purpose for which the individual [was] committed.‘” Id. (second and third alterations in original) (quoting Jackson, 406 U.S. at 738, 92 S.Ct. 1845). To avoid constitutional concerns, the Court construed
Soon after Zadvydas, the Court rejected a due process challenge to mandatory detention under
Since Zadvydas and Demore, our court has “grappled in piece-meal fashion with whether the various immigration detention statutes may authorize indefinite or prolonged detention of detainees and, if so, may do so without providing a bond hearing.” Rodriguez II, 715 F.3d at 1134 (quoting Rodriguez I, 591 F.3d at 1114). As we recognized in Casas, “prolonged detention without adequate procedural protections would raise serious constitutional concerns.” Casas, 535 F.3d at 950; see also Rodriguez II, 715 F.3d at 1144 (discussing “the constitutional concerns raised by prolonged mandatory detention“); Singh, 638 F.3d at 1208 (“The private interest here—freedom from prolonged detention—is unquestionably substantial.“); Diouf II, 634 F.3d at 1085 (“When the period of detention becomes prolonged, ‘the private interest that will be affected by the official action’ is more substantial; greater procedural safeguards are therefore required.“) (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). We have therefore held that non-citizens detained pursuant to
While the government falsely equates the bond hearing requirement to mandated release from detention or facial invalidation of a general detention statute, our precedents make clear that there is a distinction “between detention being authorized and being necessary as to any particular person.” Casas, 535 F.3d at 949. Bond hearings do not restrict the government‘s legitimate authority to detain inadmissible or deportable non-citizens; rather, they merely require the government to “justify denial of bond” with clear and convincing “evidence that an alien is a flight risk or danger to the community.” Singh, 638 F.3d at 1203. And, in the end, the government is required only to establish that it has a legitimate interest reasonably related to continued detention; the discretion to release a non-citizen on bond or other conditions remains soundly in the judgment of the immigration judges the Department of Justice employs.
Prior decisions have also clarified that detention becomes “prolonged” at the six-month mark. In Zadvydas, the Supreme Court recognized six months as a “presumptively reasonable period of detention.” 533 U.S. at 701, 121 S.Ct. 2491. By way of background, the Court noted that in 1996, Congress had “shorten[ed] the removal period from six months to 90 days.” Id. at 698, 121 S.Ct. 2491. The Court then explained:
While an argument can be made for confining any presumption to 90 days, we doubt that when Congress shortened the removal period to 90 days in 1996 it believed that all reasonably foreseeable removals could be accomplished in that time. We do have reason to believe, however, that Congress previously doubted the constitutionality of detention for more than six months. Consequently, for the sake of uniform administration in the federal courts, we recognize that period.
Id. at 701, 121 S.Ct. 2491 (citation omitted); see also Clark v. Martinez, 543 U.S. 371, 386, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005) (applying “the 6-month presumptive detention period” the Supreme Court “prescribed in Zadvydas“); cf. Nadarajah v. Gonzales, 443 F.3d 1069, 1078-79 (9th Cir.
B. Entitlement to a Bond Hearing
With this well-established precedent of the Supreme Court and our Court in mind, we review the district court‘s grant of summary judgment and entry of a permanent injunction. We consider, in turn, whether individuals detained under
1. The § 1226(c) Subclass
Section 1226(c) requires that the Attorney General detain any non-citizen who is inadmissible or deportable because of his criminal history upon that person‘s release from imprisonment, pending proceedings to remove him from the United States.8 Detention under
An individual detained under
As a result of
In Rodriguez II, we held that “the prolonged detention of an alien [under
Contrary to the government‘s argument, this holding is consistent with the text of
Since Rodriguez II, no intervening changes in the law have affected our conclusions. Neither the Supreme Court nor our Circuit has had occasion to reexamine
Moreover, district courts have relied on Rodriguez II in resolving numerous habeas petitions filed by immigration detainees. See, e.g., Castaneda v. ICE Field Office Dir., No. 14-1427, 2015 WL 71584, at *2-3 (W.D. Wash. Jan. 6, 2015) (addressing whether the petitioner‘s bond hearing complied with the requirements of Rodriguez II); Garcia-Perez v. Kane, No. 13-01870, 2014 WL 3339794, at *2 (D. Ariz. July 8, 2014) (noting that, under Rodriguez II, “detention always becomes prolonged at six months,” but denying a habeas petition because petitioner “has not been detained for longer than six months“); Lopez v. Napolitano, No. 12-01750, 2014 WL 1091336, at *4-6 (E.D. Cal. Mar. 18, 2014) (extending Rodriguez II to a non-citizen detained under
Thus, Rodriguez II is law of the case and law of the circuit. As we recently explained, the “law of the case doctrine” provides that “a court will generally refuse to reconsider an issue that has already been decided by the same court or a higher court in the same case.” Gonzalez v. Arizona, 677 F.3d 383, 389 n. 4 (9th Cir. 2012) (en banc), aff‘d sub nom. Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 133 S.Ct. 2247, 186 L.Ed.2d 239 (2013); see also Gonzales v. U.S. Dep‘t of Homeland Sec., 712 F.3d 1271, 1278 (9th Cir. 2013); Bernhardt v. Los Angeles County, 339 F.3d 920, 924 (9th Cir. 2003). Likewise, pursuant to the “law of the circuit” rule, “a published decision of this court constitutes binding authority which ‘must be followed unless and until overruled by a body competent to do so.‘” Gonzalez, 677 F.3d at 389 n. 4 (quoting Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001)); see also United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en banc) (“[W]here a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit. ...“).
The “general rule” is that our decisions “at the preliminary injunction phase do not constitute the law of the case.” Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1075 n. 5 (9th Cir. 2015) (quoting Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. Dep‘t of Agric., 499 F.3d 1108, 1114 (9th Cir. 2007)). Because preliminary injunction decisions are often “made hastily and on less than a full record,” they “may provide little guidance as to the appropriate disposition on the merits.” Ctr. for Biological Diversity v. Salazar, 706 F.3d 1085, 1090 (9th Cir. 2013) (citations omitted); see also S. Or. Barter Fair v. Jackson County, 372 F.3d 1128, 1136 (9th Cir. 2004). However, “there is an exception to the general rule for ‘conclusions on pure issues of law.‘” Stormans, 794 F.3d at 1075 n. 5 (quoting Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d 790, 804-05 (9th Cir. 2011)); see also Ranchers Cattlemen, 499 F.3d at 1114 (“Any of our conclusions on pure issues of law, however, are binding.“).
The question resolved in Rodriguez II—whether non-citizens subject to prolonged detention under
2. The § 1225(b) Subclass
Under DHS regulations, non-citizens detained pursuant to
As with
In Rodriguez II, we extended Casas and held that to avoid serious constitutional concerns, mandatory detention under
In so holding, we recognized that many members of the
The government also argues that lawful permanent residents treated as seeking admission are entitled to lesser due process protections than other lawful permanent residents. But the government has not provided any authority to support that proposition: The cases cited in the government‘s brief address statutory and regulatory distinctions between lawful permanent residents treated as applicants for admission and other lawful permanent residents; they do not reflect any constitutional distinction between those groups. See Gonzaga-Ortega v. Holder, 736 F.3d 795, 804 (9th Cir. 2013) (holding that lawful permanent residents treated as applicants for admission are not entitled to counsel under
Finally, the government argues that, instead of requiring bond hearings, we could avoid constitutional concerns by interpreting
The Supreme Court‘s decision in Kwong Hai Chew v. Colding, 344 U.S. 590, 73 S.Ct. 472, 97 L.Ed. 576 (1953), is not to the contrary. Chew involved a pre-IIRIRA immigration regulation that applied to “excludable” non-citizens. Id. at 591 n. 1, 73 S.Ct. 472. Because the regulations were silent as to whether that category included lawful permanent residents returning from voyages abroad, the Court distinguished between the “exclusion” of newly arriving non-citizens and the “expulsion” of lawful permanent residents, thereby holding that the regulation did not authorize the Attorney General to detain arriving lawful per-
Accordingly, we adhere to Rodriguez II‘s holding regarding the
3. The § 1226(a) Subclass
Although
The district court‘s decision regarding the
The government does not contest that Casas is the binding law of this circuit or that individuals detained under
4. The § 1231(a) Subclass
The removal period begins on the latest of the following:
- The date the order of removal becomes administratively final.
- If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court‘s final order.
- If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement.
“If the alien does not leave or is not removed within the removal period,” he “shall be subject to supervision,” but detention is no longer mandatory.
Here, the class is defined, in relevant part, as non-citizens who are detained “pending completion of removal proceedings, including judicial review.” The class therefore by definition excludes any detainee subject to a final order of removal.
Petitioners describe the
Simply put, the
C. Procedural Requirements
In addition to challenging the class members’ entitlement to automatic bond hearings after six months of detention, the government objects to the district court‘s order regarding the burden and standard of proof at such hearings. The government also appeals the district court‘s ruling that IJs must consider alternatives to detention. Petitioners cross-ap-
1. Burden and Standard of Proof
The government argues that the district court erred in requiring the government to justify a non-citizen‘s detention by clear and convincing evidence, an intermediate burden of proof that is more than a preponderance of the evidence but less than proof beyond a reasonable doubt. As we noted in Rodriguez II, however, we are bound by our precedent in Singh, which held that “the government must prove by clear and convincing evidence that an alien is a flight risk or a danger to the community to justify denial of bond at a Casas hearing.” Rodriguez II, 715 F.3d at 1135 (quoting Singh, 638 F.3d at 1203).
In Singh, we explained that the “Supreme Court has repeatedly reaffirmed the principle that ‘due process places a heightened burden of proof on the State in civil proceedings in which the individual interests at stake ... are both particularly important and more substantial than mere loss of money.‘” Id. at 1204 (alteration in original) (quoting Cooper v. Oklahoma, 517 U.S. 348, 363, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) (criminal defendant‘s competence to stand trial)) (citing Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780 (1992) (indefinite confinement of a criminal defendant acquitted by reason of insanity); Woodby v. INS, 385 U.S. 276, 285, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966) (deportation of a lawful permanent resident); Chaunt v. United States, 364 U.S. 350, 353, 81 S.Ct. 147, 5 L.Ed.2d 120 (1960) (revocation of naturalized citizenship)). In the civil commitment context, for example, the Supreme Court has recognized “the state‘s interest in committing the emotionally disturbed,” but has held that “the individual‘s interest in not being involuntarily confined indefinitely ... is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence.” Addington v. Texas, 441 U.S. 418, 425-27, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). Drawing on this jurisprudence, Singh concluded that “a clear and convincing evidence standard of proof provides the appropriate level of procedural protection” in light of “the substantial liberty interest at stake.” Id. at 1203-04 (citing Addington, 441 U.S. at 427, 99 S.Ct. 1804).
The government now contends that Singh was wrongly decided. However, it is well established that only a full court, sitting en banc, may overrule a three-judge panel decision. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003). Right or wrong, we are bound to follow Singh unless intervening Supreme Court authority is to the contrary. Id.
2. Restrictions Short of Detention
The government also argues that the district court erred in “determinin[g] that IJs are required to consider the use of alternatives to detention in making bond determinations.” As the district court‘s order states, however, IJs “should already be considering restrictions short of incarceration.” Indeed, Rodriguez II affirmed a preliminary injunction that directed IJs to “release each Subclass member on reasonable conditions of supervision, including electronic monitoring if necessary, unless the government” satisfied its burden of justifying continued detention. Id. at 1131 (emphasis added).
The government‘s objections to this requirement are unversuasive. First, the government relies on Demore for the prop-
Second, the government argues that IJs are not empowered to impose conditions of release. However, federal regulations authorize IJs to “detain the alien in custody, release the alien, and determine the amount of bond, if any, under which the respondent may be released” and to “ameliorat[e] the conditions” of release imposed by DHS.
Finally, the government argues that IJs lack the resources to engage in continuous monitoring of released individuals. However, the government fails to cite any law or evidence indicating that IJs, rather than DHS or ICE agents, would be responsible for implementing the conditions of release. Moreover, the record indicates that Congress authorized and funded an ICE alternatives-to-detention program in 2002, and DHS has operated such a program, called the Intensive Supervision and Appearance Program, since 2004. It is abundantly clear that IJs can and do17 consider conditions of release on bond when determining whether the government‘s interests can be served by detention only, and we conclude that DHS will administer any such conditions, regardless of whether they are imposed by DHS in the first instance or by an IJ upon later review.
3. Length of Detention and Likelihood of Removal
In their cross-appeal, petitioners argue that the district court erred in failing to require IJs to consider the length of a non-citizen‘s past and likely future detention and, relatedly, the likelihood of eventual removal from the United
As to the likely duration of future detention and the likelihood of eventual removal, however, those factors are too speculative and too dependent upon the merits of the detainee‘s claims for us to require IJs to consider during a bond hearing. We therefore affirm the district court‘s ruling that consideration of those factors “would require legal and political analyses beyond what would otherwise be considered at a bond hearing” and is therefore not appropriate. We note that Zadvydas and its progeny require consideration of the likelihood of removal in particular circumstances,18 but we decline to require such analysis as a threshold inquiry in all bond hearings.
4. Periodic Hearings
The record shows that many class members are detained well beyond the six-month mark: Almost half remain in detention at the twelve-month mark, one in five at eighteen months, and one in ten at twenty-four months. Petitioners argue that due process requires additional bond hearings at six-month intervals for class members who are detained for more than six months after their initial bond hearings. We have not had occasion to address this issue in our previous decisions, and it has been a source of some contention in the district courts. See, e.g., Vivorakit v. Holder, No. 14-04515, 2015 WL 4593545, at *4 (N.D. Cal. July 30, 2015); Castaneda v. Aitken, No. 15-01635, 2015 WL 3882755, at *10 (N.D. Cal. June 23, 2015).
The district court here did not address this proposed requirement. For the same reasons the IJ must consider the length of past detention, we hold that the government must provide periodic bond hearings every six months so that noncitizens may challenge their continued detention as “the period of ... confinement grows.” Diouf II, 634 F.3d at 1091 (quoting Zadvydas, 533 U.S. at 701, 121 S.Ct. 2491).
V. Conclusion
This decision flows from the Supreme Court‘s and our own precedent bearing on
AFFIRMED IN PART; REVERSED IN PART; REMANDED.