YOLANY PADILLA; IBIS GUZMAN; BLANCA ORANTES; BALTAZAR VASQUEZ v. IMMIGRATION AND CUSTOMS ENFORCEMENT; U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. CUSTOMS AND BORDER PROTECTION; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; MATTHEW ALBENCE, Acting Director of ICE; CHAD WOLF, Acting Secretary of DHS; MARK MORGAN, Acting Commissioner of CBP; KEN CUCCINELLI, Senior Official Performing the Duties of the Director of USCIS; MARC J. MOORE, Seattle Field Office Director, ICE; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; WILLIAM P. BARR, Attorney General, United States Attorney General; LOWELL CLARK, Warden of the Northwest Detention Center in Tacoma, Washington; CHARLES INGRAM, Warden of the Federal Detention Center in SeaTac, Washington; DAVID SHINN, Warden; JAMES JANECKA, Warden of the Adelanto Detention Facility
No. 19-35565
United States Court of Appeals for the Ninth Circuit
March 27, 2020
D.C. No. 2:18-cv-00928-MJP
OPINION
Appeal from the United States District Court for the Western District of Washington Marsha J. Pechman, District Judge, Presiding
Argued and Submitted October 22, 2019 San Francisco, California
Filed March 27, 2020
Before: Sidney R. Thomas, Chief Judge, and Michael Daly Hawkins and Bridget S. Bade, Circuit Judges.
Opinion by Chief Judge Thomas; Dissent by Judge Bade
SUMMARY*
Immigration
Affirming in part, and vacating and remanding in part, the district court’s preliminary injunction ordering the United States to provide bond hearings to a class of noncitizens who were detained and found to have a credible fear of persecution, the panel affirmed the injunction insofar as it concluded that plaintiffs have a due process right to bond hearings, but remanded for further findings and reconsideration with respect to the particular process due to plaintiffs.
The district court certified a nationwide class of all detained asylum seekers who were subject to expedited removal proceedings, were found to have a credible fear of persecution, but were not provided a bond hearing with a record of hearing within seven days of requesting a hearing. Part A of the district court’s modified preliminary injunction provided: 1) bond hearings must take place within seven days of a class member’s request, or the member must be released; 2) the burden of proof is on the government to show why the member should not be released; and 3) the government must produce recordings or verbatim transcripts of the hearings, as well as written decisions. Part B concluded that the class is constitutionally entitled to bond hearings. A motions panel of this court previously denied the government’s request to stay Part B, but granted the stay as to Part A.
The panel concluded that the district court did not abuse its discretion in concluding that plaintiffs were likely to prevail on their due process claim, explaining that immigration detention violates the Due Process Clause unless a special justification outweighs the constitutionally protected interest in avoiding physical restraint. The panel also concluded that the district court did not abuse its discretion in finding that other processes—seeking parole from detention or filing habeas petitions—were insufficient to satisfy due process. The panel further rejected the government’s suggestion that noncitizens lack any rights under the Due Process Clause, observing the general rule that once a person is standing on U.S. soil—regardless of the legality of entry—he or she is entitled to due process.
The panel next concluded that the district court did not abuse its discretion in its irreparable harm analysis, noting substandard physical conditions and medical care in detention, lack of access to attorneys and evidence, separation from family, and re-traumatization. The panel also concluded that the district court did not abuse its discretion in finding that the balance of the equities and public interest favors plaintiffs, explaining that the district court weighed: 1) plaintiffs’ deprivation of a fundamental constitutional right and its attendant harms; 2) the fact that it is always in the public interest to prevent constitutional violations; and 3) the government’s interest in the efficient administration of immigration law.
As to Part A of the injunction, the panel concluded that the record was insufficient to support the requirement of hearings within seven days, and that the district court made insufficient findings as to the burdens that Part A may impose on immigration courts. The panel also noted that the number of individuals in expedited removal proceedings may have dramatically increased since the entry of the injunction. Thus, the panel remanded to the district court for further factual development of the preliminary injunction factors as to Part A.
The panel also rejected the government’s argument that the district court lacked authority to grant injunction relief under
Finally, the panel concluded that the district court did not abuse its discretion in granting the injunction as to the nationwide class. However, the panel directed that, on remand, the district court must also revisit the nationwide scope.
Dissenting, Judge Bade wrote that
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
COUNSEL
Lauren C. Bingham (argued), Senior Litigation Counsel; Archith Ramkumar, Trial Attorney; Sarah S. Wilson, Assistant United States Attorney; Erez Reuveni, Assistant Director; William C. Peachey, Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.
Matt Adams (argued), Leila Kang, and Aaron Korthuis, Northwest Immigrant Rights Project, Seattle, Washington; Trina A. Realmuto and Kristin Macleod-Ball, American Immigration Council, Brookline, Massachusetts; Judy Rabinovitz, Michael Tan, and Anand Balakrishnan, ACLU Immigrants’ Rights Project New York, New York; for Plaintiffs-Appellees.
Alan Schoenfeld and Lori A. Martin, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York; Rebecca Arriaga Herche, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Jamil Aslam, Wilmer Cutler Pickering Hale and Dorr LLP, Los Angeles, California; for Amici Curiae Retired Immigration Judges and Board of Immigration Appeals Members.
Erin K. Earl, Julie Wilson-McNerney, and Anna Mouw Thompson, Perkins Coie LLP, Seattle, Washington, for Amici Curiae National Association of Criminal Defense Lawyers, Pretrial Justice Institute, and Center for Legal and Evidence-Based Practices.
Robert W. Ferguson, Attorney General; Andrew R. W. Hughes, Kristin Beneski, and Brendan Selby, Assistant Attorneys General; Office of the Attorney General, Seattle, Washington; Xavier Becerra, Attorney General, Sacramento, California; Phil Weiser, Attorney General, Denver, Colorado; William Tong, Attorney General, Hartford, Connecticut; Kathleen Jennings, Attorney General, Wilmington, Delaware; Karl A. Racine, Attorney General, Washington, D.C.; Clare E. Connors, Attorney General, Honolulu, Hawaii; Kwame Raoul, Attorney General, Chicago, Illinois; Brian E. Frosh, Attorney General, Baltimore, Maryland; Maura Healey, Attorney General, Boston, Massachusetts; Dana Nessel, Attorney General, Lansing, Michigan; Keith Ellison, Attorney General, St. Paul, Minnesota; Aaron D. Ford, Attorney General, Carson City, Nevada; Gurbir S. Grewal, Attorney General; Glenn J. Moramarco, Assistant Attorney General; Marie Soueid, Deputy Attorney General; Office of the Attorney General, Trenton, New Jersey; Hector Balderas, Attorney General, Santa Fe, New Mexico; Peter F. Neronha, Attorney General, Providence, Rhode Island; Ellen F. Rosenblum, Attorney General, Salem, Oregon; Thomas J. Donovan Jr., Attorney General, Montpelier, Vermont; Mark R. Herring, Attorney General, Richmond, Virginia; for Amici Curiae Washington, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Virginia.
THOMAS, Chief Judge:
In this interlocutory appeal, we consider whether the district court abused its discretion
I
Plaintiffs are a class of noncitizens detained pursuant to
DHS removes noncitizens eligible for expedited removal “without further hearing or review,” subject to only one exception.
If the asylum officer determines at the time of the credible fear interview that the noncitizen has a credible fear of
persecution, the noncitizen must “be detained for further consideration of the application for asylum.”
Until July 2019, noncitizens like plaintiffs, who were apprehended within the United States and initially subject to expedited removal, but who established credible fear and were transferred to full removal proceedings, were considered to be entitled to bond hearings before an immigration judge, as noncitizens in full removal proceedings usually are. See Matter of X-K-, 23 I. & N. Dec. 731, 731 (BIA 2005).
In June 2018, Yolany Padilla, Ibis Guzman, and Blanca Orantes filed a class action complaint challenging the government’s alleged policy and practice of separating families seeking asylum and delaying
The district court first certified a nationwide Bond Hearing Class consisting of:
All detained asylum seekers who entered the United States without inspection, were initially subject to expedited removal proceedings under
8 U.S.C. § 1225(b) , were determined to have a credible fear of persecution, but are not provided a bond hearing with a verbatim transcript or recording of the hearing within seven days of requesting a bond hearing.
Padilla v. U.S. Immigr. & Customs Enf’t, No. C18-928 MJP, 2019 WL 1056466, at *1 (W.D. Wash. Mar. 6, 2019).2
The district court also granted the motion for a preliminary injunction, implementing certain procedural requirements for class members’ bond hearings. Specifically, the preliminary injunction required the Executive Office for Immigration Review (“EOIR”) to conduct bond hearings within seven days of a class member’s request and release any member whose detention without a hearing exceeds that limit. Padilla v. U.S. Immigr. & Customs Enf’t, 379 F. Supp. 3d 1170, 1172 (W.D. Wash. 2019). The injunction also provided that in those hearings, the burden of proof must be placed on DHS to demonstrate why the class member should not be released on bond, parole, or other conditions. Id. It required the government to record the bond hearings and produce the recordings or verbatim transcripts upon appeal. Finally, the injunction required the government to produce a written decision with particularized findings at the conclusion of each bond hearing. Id.
Shortly after this order, the Attorney General (“AG”) overruled Matter of X-K-, which established that noncitizens similarly situated to the members of the bond hearing class
are entitled to bond hearings, as “wrongly decided.” Matter of M-S-, 27 I. & N. Dec. 509, 510 (A.G. 2019). The AG interpreted
Plaintiffs then filed a third amended complaint challenging Matter of M-S- on due process grounds and moved to modify the injunction.3 Defendants moved to vacate the injunction.
The district court modified the previously issued preliminary injunction, dividing it into two parts “to facilitate appellate review.” Padilla v. U.S. Immigr. & Customs Enf’t, 387 F. Supp. 3d 1219, 1222 (W.D. Wash. 2019). In Part A, the court reaffirmed its previously entered injunctive relief. Id. In Part B, the court essentially maintained the status quo before Matter of M-S-. Id. The court:
[m]odif[ied] the injunction to find that the statutory prohibition at [
§ 1225(b)(1)(B)(ii) ]
against releasing on bond persons found to have a credible fear and awaiting a determination of their asylum application violates the U.S. Constitution; the Bond Hearing Class is constitutionally entitled to a bond hearing before a neutral decisionmaker (under the conditions enumerated [in Part A]) pending resolution of their asylum applications.
The government timely appealed both orders, moved for an administrative stay of the injunction, and a stay pending appeal. A motions panel of this court denied the government’s request to stay Part B of the injunction, in which the district court held that class members are constitutionally entitled to bond hearings, but granted the request to stay Part A, which imposed procedural requirements on those bond hearings.4
II
We have jurisdiction of this interlocutory appeal under
deferential.” Id. The district court abuses its discretion when it makes an error of law. Id. “We review the district court’s legal conclusions de novo, [and] the factual findings underlying its decision for clear error.” K.W. ex rel. D.W. v. Armstrong, 789 F.3d 962, 969 (9th Cir. 2015) (citation omitted). “We do not ‘determine the ultimate merits,’ but rather ‘determine only whether the district court correctly distilled the applicable rules of law and exercised permissible discretion in applying those rules to the facts at hand.’” Saravia v. Sessions, 905 F.3d 1137, 1141–42 (9th Cir. 2018) (quoting Fyock v. Sunnyvale, 779 F.3d 991, 995 (9th Cir. 2015)).
We also review the scope of the preliminary injunction, such as its nationwide effect, for abuse of discretion. California v. Azar, 911 F.3d 558, 568 (9th Cir. 2018), cert. denied sub nom. Little Sisters of the Poor Jeanne Jugan Residence v. California, 139 S. Ct. 2716 (2019). “We review de novo the existence of the district court’s jurisdiction.” Rodriguez v. Cty. of Los Angeles, 891 F.3d 776, 790 (9th Cir. 2018).
III
“A plaintiff seeking a preliminary injunction must 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.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Where the government is a party to a case in which a preliminary injunction is sought, the balance of the equities and public interest factors merge. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). After consideration of
the arguments presented by both parties and
A
1
The Due Process Clause of the Fifth Amendment forbids the government from “depriv[ing]” any “person . . . of . . . liberty . . . without due process of law.” The Supreme Court has made clear that all persons in the United States—regardless of their citizenship status, means or legality of entry, or length of stay—are entitled to the protections of the Due Process Clause. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (although “certain constitutional protections . . . are unavailable to aliens outside of our geographic borders . . . once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent”); see also United States v. Raya-Vaca, 771 F.3d 1195, 1202–03 (9th Cir. 2014) (observing that the “Supreme Court has categorically declared that once an individual has entered the United States, he is entitled to the protection of the Due Process Clause” and that “[e]ven an alien who has run some fifty yards into the United States has entered the
country”); Kim Ho Ma v. Ashcroft, 257 F.3d 1095, 1108 (9th Cir. 2001) (“[O]nce an alien has ‘entered’ U.S. territory, legally or illegally, he or she has constitutional rights, including Fifth Amendment rights.”).
“Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). “Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas, 533 U.S. at 690. Under the Due Process Clause, a person must be afforded adequate notice and hearing before being deprived of liberty. See Mathews, 424 U.S. at 333. “In the context of immigration detention, it is well-settled that ‘due process requires adequate procedural protections to ensure that the government’s asserted justification for physical confinement outweighs the individual’s constitutionally protected interest in avoiding physical restraint.’” Hernandez v. Sessions, 872 F.3d 976, 990 (9th Cir. 2017) (quoting Singh v. Holder, 638 F.3d 1196, 1203 (9th Cir. 2011)).
The Supreme Court has held repeatedly that non-punitive detention violates the Constitution unless it is strictly limited, which typically means that the detention must be accompanied by a prompt individualized hearing before a neutral decisionmaker to ensure that the imprisonment serves the government’s legitimate goals. See, e.g., United States v. Salerno, 481 U.S. 739, 750–51 (1987) (pretrial detention of arrestees constitutional where statute provides for “extensive safeguards,” including a “full-blown adversary hearing,” in which the government must “provide[] by clear and
convincing evidence that an arrestee
Immigration detention, like all non-punitive detention, violates the Due Process Clause unless “a special justification . . . outweighs the ‘individual’s constitutionally protected interest in avoiding physical restraint.’” Zadvydas, 533 U.S. at 690 (quoting Kansas v. Hendricks, 521 U.S. at 356). Although “[t]he government has legitimate interests in protecting the public and in ensuring that non-citizens in removal proceedings appear for hearings, any detention incidental to removal must ‘bear[ ] [a] reasonable relation to [its] purpose.’” Hernandez, 872 F.3d at 990 (quoting Zadvydas, 533 U.S. at 690).
“[G]iven the substantial liberty interests at stake,” Singh, 638 F.3d at 1200, courts have repeatedly affirmed the importance of providing detained noncitizens individualized hearings before neutral decisionmakers. See Hernandez, 872 F.3d at 990 (requiring “adequate procedural protections to ensure that the government’s asserted justification for
physical confinement outweighs the individual’s constitutionally protected interest in avoiding physical restraint” (quoting Singh, 638 F.3d at 1203)); Casas-Castrillon v. DHS, 535 F.3d 942, 950 (9th Cir. 2008) (individuals subjected to prolonged detention pending judicial review of their removal orders are entitled to a bond hearing and an “individualized determination as to the necessity of [their] detention”); see also Jennings v. Rodriguez, 138 S. Ct. 830, 862, 869 (2018) (Breyer, J., dissenting) (reviewing Supreme Court caselaw, which “almost always has suggested” that bail proceedings for noncitizens are necessary and that “[t]he Due Process Clause foresees bail eligibility as part of ‘due process’”); Salerno, 481 U.S. at 746 (“When government action depriving a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner.”).
Thus, we conclude that the district court did not abuse its discretion in applying Mathews and concluding that the plaintiffs were likely to succeed on their claim that they are constitutionally entitled to individualized bond hearings before a neutral decisionmaker.
2
The Supreme Court’s decisions in Zadvydas and Demore v. Kim, 538 U.S. 510 (2003), are not to the contrary. In Zadvydas, the two petitioners were in a unique situation: they had been adjudicated removable and were being detained ostensibly to enable their deportation; however, their detention lasted longer than the usual 90-day removal period because no country would accept them. Zadvydas, 533 U.S. at 683–87. The Court avoided the constitutional
statute, under which detention was mandatory for the 90-day removal period and then discretionary, as limiting detention to a period “reasonably necessary” to effectuate removal. See id. at 689. In other words, the Court construed the statute in such a way as to ensure that detention pursuant to it was reasonably limited to its narrow purpose. See id.
In Demore, the Supreme Court held constitutional the detention of a noncitizen, who had conceded that he was deportable, pursuant to a statute that imposed detention without bond on a subset of noncitizens deportable for having committed enumerated crimes. See 538 U.S. at 526–28, 531; see also
statistics did not include the “many” cases where a noncitizen was never subject to mandatory detention under the statute because his or her removal proceedings were completed while he or she served time for the underlying conviction. Id. at 529.
Here, in contrast, the government presented no evidence that Congress considered plaintiffs to present a particular risk of flight or danger—indeed, individuals in the same position as class members have been receiving bond hearings under Matter of X-K- for years as well as for many years before Matter of X-K- was decided. See 23 I. & N. Dec. at 731. Moreover, every plaintiff here will necessarily be subject to mandatory detention, and the duration of that detention is not similarly “limited.” See Demore, 538 U.S. at 531. Indeed, the record here suggests that, based on statistics from the years 2010 through early 2019, plaintiffs may expect to be detained for anywhere from six months to over-a-year while their applications for asylum or protection are fully adjudicated. This is far longer than the periods at issue in Demore or Zadvydas.
3
The government argues that such prolonged detention without a bond hearing is nonetheless constitutional because the government may release certain noncitizens on parole pursuant to
The government urges us to consider, in the first instance, interim parole guidance issued in the wake of the preliminary injunction; however, this guidance is consistent with the statute and regulations and provides no additional procedural protections. To be considered for parole under the interim guidance, a noncitizen must first “satisfy” an officer that he or she is not a security or flight risk, at which point the officer may order release on parole for “urgent humanitarian reasons” or if detention is not in the public interest. Detention “may not be in the public interest . . . where, in light of available detention resources, detention of the subject alien would limit the ability of ICE to detain another alien whose release may pose a greater risk of flight or danger to the community.” Under this guidance, ICE officers make parole determinations by checking one of five boxes on a form that requires no factual findings, no specific explanation, and no evidence of deliberation. Indeed, one of the checkboxes corresponds to five possible reasons for denying parole, without space to indicate which applies in a particular case.
In short, parole review is nothing like the “full-blown adversary hearing” that the Supreme Court has found adequate to justify civil confinement, see, e.g., Salerno, 481 U.S. at 750-51, and it is “not sufficient to overcome the constitutional concerns raised by prolonged mandatory detention,” Rodriguez v. Robbins, 715 F.3d 1127, 1144 (9th Cir. 2013); see also Zadvydas, 533 U.S. at 692 (suggesting that “the Constitution may well preclude granting an administrative body the unreviewable authority to make determinations implicating fundamental rights” (citation and quotation marks omitted)); St. John v. McElroy, 917 F. Supp. 243, 251 (S.D.N.Y. 1996) (due process not satisfied by parole review; instead, it requires an “impartial adjudicator” to review detention since, “[d]ue to political and community pressure, the INS . . . has every incentive to continue to detain“). The district court thus did not abuse its discretion in concluding that the parole process is inadequate to ensure that class members are only detained where a valid governmental purpose outweighs their fundamental liberty interest.
4
The government also insists that plaintiffs’ detention without bond does not present
Moreover, the obligation to provide due process exists regardless of whether a detainee files a habeas petition. See Sopo v. U.S. Attorney Gen., 825 F.3d 1199, 1217 n.8 (11th Cir. 2016) (“The constitutional principles at play here, of course, apply to the government‘s conduct—detaining criminal aliens—whether a
The district court also properly reviewed the evidence before it and underscored the barriers that may prevent many detained noncitizens in the plaintiff class from successfully filing and litigating habeas petitions. The district court had before it declarations testifying to the fact that noncitizens such as plaintiffs are frequently pro se, have limited English skills, and lack familiarity with the legal system, and that immigration detention centers have inadequate law libraries.
Thus, on this record, we cannot say that the district court abused its discretion by determining the theoretical availability of the habeas process did not alone satisfy due process.
5
The government also suggests that non-citizens lack any rights under the Due Process Clause. As we have discussed, this position is precluded by Zadvydas and its progeny. The government relies on inapposite cases that address the peculiar constitutional status of noncitizens apprehended at a port-of-entry, but permitted to temporarily enter the United States under specific conditions. See, e.g., Shaughnessy v. United States ex rel. Mezei (”Mezei“), 345 U.S. 206, 208-09, 213-15 (1953) (noncitizen excluded while still aboard his ship, but then detained at Ellis Island pending final exclusion proceedings gained no additional procedural rights with respect to removal by virtue of his “temporary transfer from ship to shore” pursuant to a statute that “meticulously specified that such shelter ashore ‘shall not be considered a landing‘“); Leng May Ma v. Barber, 357 U.S. 185 (1958) (noncitizen paroled into the United States while waiting for a determination of her admissibility was not “within the United States” “by virtue of her physical presence as a parolee“); Kaplan v. Tod, 267 U.S. 228 (1925) (noncitizen excluded at Ellis Island but detained instead of being deported immediately due to suspension of deportations during World War I “was to be regarded as stopped at the boundary line“).
Indeed, these cases, by carving out exceptions not applicable here, confirm the general rule that once a person is standing on U.S. soil—regardless of the legality of his or her entry—he or she is entitled to due process. See, e.g., Mezei, 345 U.S. at 212 (“[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.“); Leng May Ma, 357 U.S. at 187 (explaining that “immigration laws have long made a distinction between those aliens who have come to our shores seeking admission . . . and those who are within the United States after an entry, irrespective of its legality,” and recognizing, “[i]n the latter instance . . . additional
6
For all these reasons, we conclude that the district court did not abuse its discretion in concluding that the plaintiffs were likely to prevail on the merits of their due process claim regarding the availability of bond hearings.
B
Nor did the district court abuse its discretion in concluding that the plaintiffs would suffer irreparable harm absent the grant of a preliminary injunction. The district court found that, in the absence of preliminary relief, plaintiffs would suffer irreparable harm in the form of “substandard physical conditions, low standards of medical care, lack of access to attorneys and evidence as Plaintiffs prepare their cases, separation from their families, and re-traumatization of a population already found to have legitimate circumstances of victimization.” Padilla, 387 F. Supp. 3d at 1231. Contrary to the government‘s unsubstantiated arguments, the record supports the district court‘s conclusion, and we see no abuse of discretion.
C
The district court also did not abuse its discretion in determining that the balance of the equities and public interest favors plaintiffs with respect to Part B of the preliminary injunction.
The district court found that the equities on Plaintiffs’ side consist of the deprivation of a fundamental constitutional right and its attendant harms, which range from physical, emotional, and psychological damages to unnecessarily prolonged family separation. Padilla, 387 F. Supp. 3d at 1231; see also Padilla, 379 F. Supp. 3d at 1181. The court also observed that “it is always in the public interest to prevent the violation of a party‘s constitutional rights.” Padilla, 387 F. Supp. 3d at 1232 (quoting Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)). On the other side, the district court weighed defendants’ expressed interests in the administration of immigration law, in controlling their dockets, and in allocating their limited resources as they see fit—i.e., “the efficient administration of the immigration laws.” Padilla, 387 F. Supp. 3d at 1231; see also Padilla, 379 F. Supp. 3d at 1181. The court concluded that the balance of hardships “tips decidedly in plaintiffs’ favor.” Padilla, 387 F. Supp. 3d at 1232 (quoting Hernandez, 872 F.3d at 996).
Defendants argue that the district court erred in balancing the equities because the government suffers irreparable injury anytime a statute is enjoined. This court has recognized that there is “some authority” for the idea that “a state may suffer an abstract form of harm whenever one of its acts is enjoined,” but, “to the extent that is true . . . it is not dispositive of the balance of harms analysis.” Latta v. Otter, 771 F.3d 496, 500 (9th Cir. 2014) (quoting Indep. Living Ctr. of So. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644, 658 (9th Cir. 2009) (alterations omitted), vacated and
In sum, we conclude that the district court did not abuse its discretion in determining that the balance of the equities and public interest favors plaintiffs.
D
Because the district court did not abuse its discretion in applying the Winter factors to determine whether plaintiffs were entitled to a preliminary injunction requiring that they receive bond hearings, we affirm Part B of the preliminary injunction.
IV
We now consider the specific procedural requirements the district court imposed in its preliminary injunction order for the required bond hearings.
As we have noted, “[t]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews, 424 U.S. at 333 (citation and quotation marks omitted). Accordingly, bond hearings must be held promptly and must involve adequate procedural protections to ensure that detention is reasonably related to preventing flight or danger to the community. See Hernandez, 872 F.3d at 990. The current record is, however, insufficient to support the district court‘s findings with respect to likelihood of success, the harms facing plaintiffs, and the balance of the equities implicated by Part A of the preliminary injunction—and particularly with respect to the requirement that the class members receive a bond hearing within seven days of making such a request or be released.
The record contains evidence describing wait times faced by detained noncitizens generally and class members prior to Matter of M-S-, but does not contain sufficient specific evidence justifying a seven-day timeline, as opposed to a 14-day, 21-day, or some other timeline. The district court also made insufficient findings regarding the extent to which the procedural requirements in Part A—and their nationwide scope—may burden the immigration courts. Critically, since the entry of the preliminary injunction, the number of individuals currently in expedited removal proceedings—and thus the number of class members—may have increased dramatically. See Designating Aliens for Expedited Removal, 84 Fed. Reg. at 35,413-14 (expanding expedited removal to the statutory limit). The government submitted on appeal declarations explaining the operational difficulties that the procedural requirements in Part A will cause. Such evidence is properly considered in the first instance by the district court.
The threat of irreparable harm to plaintiffs, the balancing of the equities, and the public interest implicated by Part A of the preliminary injunction present intensely factual questions. The factual landscape has shifted as this case has developed, including the time between the district court‘s first preliminary injunction order and modified preliminary injunction order, and the district court did not consider these developments when entering the modified preliminary injunction order. Accordingly, although we affirm Part B of
V
The defendants argue that, under
Section 1252(f)(1) provides that “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of [
Although the Supreme Court has analyzed the impact of
Because AADC was not a class action, “[t]he Court in AADC did not consider, and had no reason to consider, the application of
As we noted in Rodriguez v. Marin,
Section 1252(f)(1)‘s silence as to class actions is especially significant because its neighboring subsection,
The government contends that our interpretation of
The statute‘s legislative history supports our reading. See Pac. Coast Fed‘n of Fishermen‘s Ass‘ns v. Glaser, 937 F.3d 1191, 1196 (9th Cir. 2019) (explaining that courts “may use canons of construction, legislative history, and the statute‘s overall purpose to illuminate Congress‘s intent“). Congress adopted
The statute‘s legislative history also reveals that Congress was concerned that
Thus, upon interlocutory review, we conclude that
VI
Although defendants dispute the district court‘s authority to issue classwide injunctive relief under
Where, as here, a district court has already certified a nationwide class, the concerns associated with broad injunctions are minimized. “If a class action is otherwise proper, and if jurisdiction lies over the claims of the members of the class, the fact that the class is nationwide in scope does not necessarily mean that the relief afforded the plaintiffs will be more burdensome than necessary to redress the complaining parties.” Califano, 442 U.S. at 702. Cf. Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501 (9th Cir. 1996) (“[I]njunctive relief generally should be limited to apply only to named plaintiffs where there is no class certification.“). “[T]he scope of [a] remedy is determined by the nature and extent of the . . . violation,” Milliken v. Bradley, 433 U.S. 267, 270 (1977), and “not by the geographical extent of the plaintiff,” Califano, 442 U.S. at 702.
The nationwide class in this case is defined by a shared alleged constitutional violation. See Padilla, No. C18-928 MJP, 2019 WL 1056466, at *6 (W.D. Wash. Mar. 6, 2019). The injunction seeks to remedy that constitutional violation. In certifying the class, the court observed that, in addition to establishing numerosity, commonality, typicality and adequacy, plaintiffs had demonstrated “that the challenged conduct is ‘such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.‘” Id. (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011)). The court further concluded that certification of a nationwide class was “manifestly” appropriate, and it rejected defendants’ request to limit the scope of class certification. See id.7 Defendants did
VII
In sum, the district court did not abuse its discretion in concluding that plaintiffs are likely to succeed on their challenge under the Due Process Clause to the detention of class members without any opportunity for a bond hearing. The district court likewise did not abuse its discretion in finding plaintiffs would suffer irreparable harm absent preliminary relief and that the balance of the equities and public interest favored plaintiffs. Part B of the district court‘s preliminary injunction is thus AFFIRMED, except to the extent that it requires that bond hearings be administered under the conditions enumerated in Part A.
We VACATE and REMAND Part A of the preliminary injunction to the district court for further factual development and consideration of the procedures that must be followed with respect to the required bond hearings. The district court must further develop the relevant factual record and revisit the scope of the injunction.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
BADE, Circuit Judge, dissenting:
In keeping with the current trend in constitutional challenges to the enforcement of immigration statutes, the district court issued a classwide, nationwide preliminary injunction against the operation of
I respectfully dissent.
I.
Section 1252(f)(1) is straightforward. It provides that:
Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter . . . other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.
The majority opinion brushes these cases aside because the Supreme Court has yet to construe
Nothing in the Supreme Court‘s precedent suggests that the Court has changed its mind since deciding Jennings. And, even if we characterize the Court‘s repeated statements about
Even if we could (or should) sidestep Jennings, Nken, and AADC, a proper statutory analysis leads to the same result. The majority opinion‘s conclusion that jurisdiction exists is based on a faulty reading of
II.
When construing a statute, “no clause, sentence, or word shall be superfluous, void, or insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (citation omitted). The majority opinion‘s reading of
The majority opinion defines “individual” as the opposite of “organization,” apparently concluding that Congress added “individual” to
The majority opinion’s construction would be palatable only if Congress had replaced the phrase “an individual alien” with “any alien” or “an alien”—as it did in over a dozen other subsections of the statute. See, e.g.,
“alien” is a singular term and thus should generally be construed as applying to multiple aliens. The context of
III.
The majority opinion also posits that if Congress intended to bar classwide injunctive relief, it would have explicitly barred class actions like it did in a neighboring statute,
The majority opinion relies, in part, on Califano v. Yamasaki, 442 U.S. 682 (1979), to argue that Congress did not intend to prohibit classwide injunctive relief in
IV.
Perhaps seeking a foothold for its shaky analysis, the majority opinion also resorts to the statute’s legislative history. Maj. Op. 32–34. But “where, as here, the words of the statute are unambiguous, the judicial inquiry is complete.” Desert Palace, Inc. v. Costa, 539 U.S. 90, 98 (2003) (internal quotation marks and citation omitted); see Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (“Our inquiry must cease if the statutory language is unambiguous and the statutory scheme is coherent and consistent.” (internal quotation marks and citation omitted)). The majority opinion fails to identify any
In any event, the scant discussion in the statute’s legislative history specifically addressing
The majority opinion also relies on a House Committee report to support its reading of
Section 306 also limits the authority of Federal courts other than the Supreme Court to enjoin the operation of the new removal procedures established in this legislation. These limitations do not preclude challenges to the new procedures, but the procedures will remain in force while such lawsuits are pending. In addition, courts may issue injunctive relief pertaining to the case of an individual alien, and thus protect against any immediate violation of rights. However, single district courts or courts of appeal do not have authority to enjoin procedures established by Congress to reform the process of removing illegal aliens from the U.S.
H.R. Rep. No. 104-469(I), at 161 (1996).
Although this report holds “no binding legal effect,” Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 684 (9th Cir. 2007), the majority opinion emphasizes the phrase “immediate violation of rights.” In so doing, it overlooks the preceding clause: “courts may issue injunctive relief pertaining to the case of an individual alien.” H.R. Rep. No. 104-469(I), at 161 (emphasis added). Like the statute itself, this language specifically describes the scope of the carve out using singular phrasing. And the next sentence firmly states that lower courts cannot “enjoin procedures established by Congress to reform the process of removing illegal aliens from the U.S.” Id. Contrary to the majority opinion’s view, this report shows that Congress wanted to prevent lower courts from issuing sweeping injunctions—such as the classwide, nationwide injunction at issue here—against its enacted removal procedures.
In sum, the legislative history does not support the majority opinion’s reading of
I am not the first to conclude that
We should “decline to create a circuit split unless there is a compelling reason to do so.” Kelton Arms Condo. Owners Ass‘n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003). The majority opinion fails to identify such a “compelling reason.” As a result, even though we trail two other circuits in addressing this issue, the majority opinion makes us the first and only circuit to conclude that
VI.
Even if the district court had jurisdiction to issue classwide injunctive relief, the preliminary injunction is overbroad and extends far beyond the demands of due process.
The district court certified the Bond Hearing Class as:
All detained asylum seekers who entered the United States without inspection, were initially subject to expedited removal proceedings under
8 U.S.C. § 1225(b) , were determined to have a credible fear of persecution, but are not provided a bond hearing with a verbatim transcript or recording of the hearing within seven days of requesting a bond hearing.
Padilla v. U.S. Immigration & Customs Enf‘t, No. C18-928 MJP, 2019 WL 1056466, at *1 (W.D. Wash. Mar. 6, 2019). The district court then issued the two-part preliminary injunction that is the subject of this appeal. In Part A of the injunction, the district court ordered the government to provide bond hearings with various procedures that supposedly are required by the Constitution, including that the hearings be conducted within seven days of a request. Padilla v. U.S. Immigration & Customs Enf‘t, 387 F. Supp. 3d 1219, 1232 (W.D. Wash. 2019). In Part B, the district court “f[ound] that the statutory prohibition at [
The majority opinion concludes that “[t]he current record is . . . insufficient to support the district court’s findings with respect to likelihood of success, the harms facing plaintiffs, and the balance of the equities implicated by Part A of the preliminary injunction—and particularly with
This holding raises multiple concerns, and Part B’s breadth is the most troublesome. Plaintiffs concede that they do not assert a facial challenge to
Furthermore, the majority opinion suggests that although the record does not support a seven-day deadline for bond hearings, it may support a 14-day, 21-day, or other unspecified but presumably similarly limited deadline. See Maj. Op. 28. But decisions made in similar contexts by the Supreme Court and this court establish that due process is not so demanding. Rather, these cases hold that, as a constitutional matter, the government need only provide bond hearings to detained aliens once the detention becomes “prolonged” or fails to serve its immigration purpose, a
Although “detention during deportation proceedings [i]s a constitutionally valid aspect of the deportation process,” Demore, 538 U.S. at 523, the majority opinion cites no decision from the Supreme Court or this court suggesting that two or three weeks constitutes “prolonged” detention.8
VII.
The majority opinion does not square with the plain text of
I would vacate the preliminary injunction and remand for further proceedings with instructions to dismiss the claims for classwide injunctive relief. I respectfully dissent.