MEMORANDUM AND ORDER REGARDING PLAINTIFF’S MOTION FOR NOTICE OF CLASS CERTIFICATION, PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT & PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
(Dkt. Nos. 95, 96, 117 & 123)
I. INTRODUCTION
Plaintiff Mark Anthony Reid has brought this suit on behalf of all aliens in Massachusetts who were or will be detained under 8 U.S.C. § 1226(c) for over six months and not provided an individualized bail hearing. On January 9, 2014, the court granted Plaintiffs individual habeas petition and concluded that detention beyond six months, absent an individualized assessment, was presumptively unreasonable. Reid v. Donelan,
As the curtain closes on this litigation, two issues require examination. The penultimate question is whether either party is entitled to summary judgment. The court, reaffirming its view that § 1226(c) includes a six-month “reasonableness” limitation on the length of no-bail detention, will formally award the class judgment as a matter of law.
The more difficult issue is whether the class should receive permanent, equitable relief. That analysis requires the court to address three questions. Is a class-wide injunction permissible? Is it proper? If so, what should it include? Ultimately, because the court possesses jurisdiction to issue class-wide equitable relief and because the relevant factors all suggest that such a remedy is appropriate, an order enjoining Defendants from applying § 1226(c) to the class, detailed in the conclusion of this memorandum, will issue.
II. BACKGROUND
Plaintiff, Mark Anthony Reid, represents a class of aliens who were (or will be) detained under 8 U.S.C. § 1226(c), were not provided an individualized bail hearing, and were in custody for over six months. The background of this litigation and the underlying statutory framework have previously been outlined in detail. See Reid v. Donelan,
Plaintiff came to the United States in 1978 as a lawful permanent resident. He has since amassed a substantial criminal history. In 2010, he was convicted of several crimes in Connecticut state court and was sentenced to twelve years in prison, to be suspended after five.
On November 13, 2012, after serving two years, the state transferred Plaintiff into the custody of Immigration and Customs Enforcement (“ICE”). ICE immediately initiated proceedings to remove him based on four non-violent state drug
After more than six months of detention, Plaintiff, on July 1, 2013, filed an individual habeas petition seeking the opportunity to argue for release on bail. The driving legal question presented in his petition was whether § 1226(c) included a “reasonableness” requirement after which an individual’s detention, absent a bail hearing, became unreasonable.
After hearing argument on December 12, 2013, the court, on January 9, 2014, granted Plaintiffs individual petition for habeas corpus. Reid I,
On February 10, 2014, the court allowed Plaintiffs Motion for Class Certification. Reid II,
Plaintiff, on March 2, 2014, filed a Motion for Notice of Class Certification (Dkt. No. 95) and a Motion for a Preliminary Injunction (Dkt. No. 96). Given the procedural posture of the case, Defendants argued that briefing on those issues should be consolidated with the parties’ disposi-
III. DISCUSSION
Though a number of motions are currently pending, they raise two broad questions. The first — whether either party is entitled to summary judgment — is easily answered in Plaintiffs favor given the court’s previous rulings.
The more challenging question is what relief is appropriate. This analysis, like the one presented in the court’s recent decision in Gordon, comprises three issues: whether class-wide equitable relief is permissible under 8 U.S.C. § 1252(f)(1), whether equitable relief is appropriate in this case, and what such relief, if any, should entail.
A. Summary Judgment
Summary judgment is appropriate when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The court must view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences from those facts in that party’s favor. Pac. Ins. Co., Ltd. v. Eaton Vance Mgmt.,
Both parties agree that the question before the court is one purely of law: whether § 1226(c) includes a “reasonableness” limit on the length of time an individual can be detained without an individual bond hearing and, if so, where that limit lies. Plaintiff believes that the analysis employed for his individual habeas petition equally resolves the class-wide motion here. Defendants argue that the court’s prior decisions were incorrect and should be reconsidered.
After reviewing Reid I and Bour-guigno.n, the court again concludes that due process requires § 1226(c) to be read as including a “reasonableness” limit requiring the government to provide detainees a chance at conditional release after that threshold is crossed. That view, as discussed at length in those two decisions, is compelled by two Supreme Court opinions: Zadvydas v. Davis, 533 U.S. 678,
In Zadvydas, the Supreme Court held that detention following issuance of an order of removal, absent a bail hearing, was only permissible so long as removal was “reasonably foreseeable.”
Two years later, the Supreme Court addressed the constitutionality of § 1226(c) in Demore. The court upheld the constitutionality of the statute, but assumed that the removal process would be relatively brief. Demore,
Weighed together, these two cases mandate that § 1226(c) be read as including a temporal limit on detention to avoid due process problems. This view, as discussed in Reid I, has been consistently adopted by this district and other courts throughout the country. See, e.g., Rodriguez v. Robbins,
The Ninth Circuit’s approach to determining the “reasonableness” limit — setting a bright-line six-month rule — is also still the most appropriate. Robbins,
This court first addressed this legal issue five years ago. The arguments and analysis are largely unchanged. It was as true in Bourguignon as it is today: due process requires § 1226(c) detainees the opportunity to argue for conditional release after detention extends beyond the six-month limit. As such, the court will award the class judgment as a matter of law.
B. Relief
As noted above, the analysis of appropriate permanent relief presents three issues: whether relief is permissible; whether relief is appropriate; and what the relief should include.
1. Is Relief Permissible?
The first question is whether § 1252(f)(1) bars classwide equitable relief.
A prolonged analysis is not required. In Gordon, the court concluded that a distinction exists between enjoining the “operation” of the law and requiring the government to obey it. Gordon,
If § 1226(c) should be read as requiring a bail hearing after detention becomes unreasonable—which it must—the distinction previously highlighted is equally applicable here. In this case, since a class-wide injunction will only require the government to comply with that proper interpretation, § 1252(f)(1) does not preclude class-wide relief.
2. Is Relief Appropriate?
The second, related question is whether equitable relief should issue. To obtain declaratory relief, Plaintiff must show that it “will serve the interests of the litigants or the public.” Metro. Prop. & Liab. Ins. Co. v. Kirkwood,
Defendants’ main argument against an injunction, one intertwined with their view on the merits, is that equitable relief is not in the public interest.
Defendants’ arguments, dependent almost exclusively on the merits of the case, cannot succeed. First, there can be no doubt that.members of the class are suffering irreparable harm each day they are detained beyond six months without the opportunity to argue for release. See Robbins,
The second factor is also easily satisfied. No monetary damages can remedy the harm alleged. As such, there exists no adequate remedy at law.
Finally, despite Defendants’ contention, an injunction is in the public interest. The public has a general interest in upholding individuals’ constitutional rights. See Phelps-Roper v. Nixon,
Ultimately, a binding order requiring the government to comply with the constitutionally mandated interpretation of § 1226(c) is warranted. This is the only guarantee that the government will provide members of the class with the remedy they are entitled to.
3. What Should Relief Entail?
Since the court will be ordering permanent, injunctive relief, it must determine the shape of that order. Here, two issues must be addressed: (1) the notice, if any, the court should provide class members, and (2) the process to be used in making bail determinations.
a. Motion for Notice of Class Certiñcation
Notice for Rule 23(b)(2) classes is discretionary and should be ordered “with care.” Fed.R.Civ.P. 23(d), advisory committee’s notes to 2003 amendment. This special attentiveness is demanded because formal notice may not serve any purpose and the costs of providing notice may be substantial. Id.
Defendants believe that this case, particularly since the class is not seeking monetary damages, does not warrant notice. See Key v. Gillette Co.,
This argument ignores the need class members will have to contact class counsel to obtain assistance in navigating the balky remedial process. The remedy the court will be imposing will be to require Defendants to afford each class member detained under § 1226(c) for over six months the same opportunity for a bail hearing available under § 1226(a). In order to access relief under § 1226(a), class members (including aliens with limited command of English) will themselves bear the burden to request bail hearings. To take this step, it is essential that aliens
Notice is particularly essential for the class members transferred out of Massachusetts. At least two class members— after being detained in Massachusetts for over six months — have been transferred to other states. (Dkt. No. 97, Ex. 1.) Individual notice is 'critical for these members, who would not otherwise have access to any general notice provided in the Commonwealth.
The government should also shoulder the burden to provide the individual notice. Defendants are in exclusive possession of the names of individual class members. Further, the cost of providing the notice— since members are in its custody — will not be substantial. Indeed, the government, as discussed below, will need to provide each member with an individualized bail determination pursuant to § 1226(a). The government may provide notice of class certification simultaneously with that individualized decision — thereby further minimizing the burden. For all these reasons, the court will allow Plaintiffs motion on this point and will order that the government provide individual notice of class certification.
b. Logistics of Bail Determinations In terms of the specific remedy, Plaintiff contends that a number of protections beyond those provided in § 1226(a) are necessary. He justifies this approach by relying on the Ninth Circuit’s decision in Robbins. There, the court affirmed a district court’s decision to require the government to show “by clear and convincing evidence that continued detention is justified.” Robbins,
Plaintiff argues that the court should adopt the Ninth Circuit’s approach with respect to the burden and standard of review for these class members. He also requests that the government automatically schedule hearings as members enter the class and that the government maintain contemporary records of the hearings in the event of an appeal. Finally, Plaintiff seeks an order requiring Immigration Judges to consider all alternatives to detention when contemplating an individual’s release on bail.
The court, of course, respects the Ninth Circuit’s approach, but concludes that the government’s recommendation — that the court should limit any remedy to the one available to detainees under § 1226(a) — is the better option. As the court recently discussed in Gordon, individuals who committed a § 1226(c) predicate offense should not receive more protections than § 1226(a) detainees.
Although the court has its concerns about the procedures used to effectuate the requirements of § 1226(a) — specifically the time between detention and a bail hearing as well as the ability of a detainee to ensure his or her request for a hearing makes its way to an Immigration official — as a matter of fairness, class members should not receive more than their counterparts who, it should be noted, have not committed any § 1226(c) predicate offense.
Gordon,
Class members here are detained, under valid statutory authority, for six months. Once a member’s detention crosses that six-month barrier, he is entitled to seek some form of individualized analysis of his entitlement to release on bail. Section 1226(a) provides a reasonably effective way for class members to obtain the individualized assessment they are entitled to, without giving them heightened or special treatment that due process does not require. Therefore, the court will adhere to the approach it adopted in Gordon and order Defendants to apply § 1226(a) to all current and future class members.
IY. CONCLUSION
The burden on the executive branch officials to manage our labyrinthine immigration system is heavy. The need to detain certain individuals pending removal cannot be denied. But, where the government applies a statute without consideration for constitutional guarantees, the rights of vulnerable aliens are at risk. The suggestion that § 1226(c) permits indefinite detention — for years, in some cases — without even the opportunity to request bail, ignores the assumption underlying this law, which Justice Kennedy recognized in De-more, that removal occur swiftly and that detention be “reasonable.”
Accordingly, the court hereby ALLOWS Plaintiffs Motion for Summary Judgment (Dkt. No. 123), and Plaintiffs Motion for Notice of Class Certification (Dkt. No. 95), DENIES Defendants’ Motion for Summary Judgment (Dkt. No. 117), and DENIES as moot Plaintiffs Motion for a Preliminary Injunction (Dkt. No. 96). The court DECLARES as follows:
• As to every class member; the mandatory detention provision, 8 U.S.C. § 1226(c), applies only to aliens detained by the Department of Homeland Security (“DHS”) for a “reasonable” period of time — specifically six months or less.
• As to every class member, an alien who is subject to detention pursuant to 8 U.S.C. § 1226(c) for over six months is entitled to an individual bail determination and a bond hearing before an Immigration Judge as contemplated in § 1226(a).
In accordance with that finding, the court hereby ORDERS the following:
• Defendants shall immediately cease and desist subjecting all current and future class members — that is, those detainees held under 8 U.S.C. § 1226(c) beyond six months — to mandatory detention under that statute.
• Defendants shall immediately determine the custody of every current class member under 8 U.S.C. § 1226(a) and timely provide a bond hearing to every class member that seeks a redetermination of his or her custody by an Immigration Judge pursuant to 8 C.F.R. §§ 1003.19 & 1236.1(d).
• As individuals enter the class at the six-month mark, Defendants will immediately determine the custody of each individual under 8 U.S.C. § 1226(a) and provide a bond hearing to every class member that seeks a redetermination of his or her custody by an Immigration Judge pursuant to 8 C.F.R. §§ 1003.19 & 1236.1(d).
• Defendants will provide individual notice of class certification, in both English and Spanish. Notice shall in-elude a description of the class and the names and contact information for all class counsel. Notice may be provided either before, or simultaneously with, the initial bail determination under § 1226(a). Notice must be individually provided to:
• all current class members detained in Massachusetts;
• those who were detained in Massachusetts under 8 U.S.C. § 1226(c) for over six months without a bail hearing as of February 10, 2014, and have since been transferred out of the Commonwealth; and
• all future class members at the point they enter the class.
• On or before June 30, 2014, Defendants shall provide class counsel with a list of identified class members, including their names and alien numbers, and the facility in which they are detained.
• On or before July 31, 2014, Defendants shall submit to the court a report detailing the following:
• any custody determinations made for class members, including the dates they were made, the determination, and, if applicable, whether the individual petitioned for a bail redetermination in front of an Immigration Judge;
• any bond hearings held for class members, including the dates they were held and the outcomes of those hearings, including the amounts of any bond set; and,
• the process and criteria by which class members have been identified.
The clerk shall set this matter for a status conference on September 15, 2014, at 4:00 p.m., to review Defendants’ compliance with this order and to discuss entry of final judgment.
It is So Ordered.
Notes
. An Immigration Judge initially ordered Plaintiff removed on April 5, 2013. The Board of Immigration Appeals (“BIA”), however, remanded the case on October 23, 2013, for a hearing on Plaintiff's Convention Against Torture claim. An Immigration Judge held an evidentiary hearing on that matter on November 19, 2013', and again ordered Plaintiff removed. Plaintiffs second appeal to the BIA is currently pending.
. That statute requires the alien to be detained "when ... released” from criminal custody. Recently, in Gordon v. Johnson, the court concluded that such language signified an immediacy requirement and limited the class of aliens subject to mandatory detention. Gordon v. Johnson,
.A peripheral issue in Plaintiff's case has been his individual challenge to ICE’s policy of shackling all § 1226(c) detainees during immigration proceedings without any form of individual consideration. On March 6, 2014, the court concluded that such a policy violated Plaintiff's due process rights. Reid v. Donelan,
. On March 10, 2014, Defendants indicated that they would be appealing the court's decision on Plaintiffs individual habeas petition. (Dkt. No. 108.)
. Apparently, even after an alien is ordered removed, it can take a significant period of time — months or even' years — to effectuate that order.
. If § 1252(f)(1) did serve as a bar to relief, Plaintiff believes that the court would maintain its habeas jurisdiction and could still issue a class-wide injunction. The court need not decide that issue as § 1252(f)(1), for the reasons discussed, does not bar a remedy here.
. The court is also satisfied, given the plain language of the statute and the First Circuit’s decision in Arevalo v. Ashcroft,
. Defendants also focus on the preliminary nature of the relief requested. They correctly contend that a preliminary injunction, given the procedural posture of this case, would be duplicative.
. Given the conclusions with respect to each factor, declaratory relief is also appropriate in this case.
. In Gordon, § 1252(f)(1) also arguably barred the court from imposing a more intrusive remedial order beyond requiring the government to afford class members access to the § 1226(a) process. Gordon class members should have been classified as § 1226(a) detainees but, instead, were improperly held under § 1226(c). Gordon,