Yolany Padilla v. Ice ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YOLANY PADILLA; IBIS GUZMAN; No. 19-35565
BLANCA ORANTES; BALTAZAR
VASQUEZ, D.C. No.
Plaintiffs-Appellees, 2:18-cv-00928-
MJP
v.
IMMIGRATION AND CUSTOMS OPINION
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,
2 PADILLA V. ICE
Warden of the Federal Detention
Center in SeaTac, Washington;
DAVID SHINN, Warden; JAMES
JANECKA, Warden of the Adelanto
Detention Facility,
Defendants-Appellants,
and
U.S. DEPARTMENT OF HEALTH &
HUMAN SERVICES, FKA Department
of Social Services; OFFICE OF
REFUGEE RESETTLEMENT; ALEX M.
AZAR II, Secretary of HHS; SCOTT
LLOYD, Director of ORR; MATTHEW
ALBENCE, Acting Deputy Director of
ICE; JOHN P. SANDERS, Acting
Commissioner of CBP; ELIZABETH
GODFREY, Acting Director of Seattle
Field Office, ICE,
Defendants.
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
PADILLA V. ICE 3
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
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 PADILLA V. ICE
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
PADILLA V. ICE 5
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 8 U.S.C. § 1252(f)(1), which provides: “no court (other
than the Supreme Court) shall have jurisdiction or authority
to enjoin or restrain the operation of the provisions of
[8 U.S.C. §§ 1221–1232], other than with respect to the
application of such provisions to an individual alien against
whom proceedings under such part have been initiated.”
Examining the relevant precedent, statutory scheme, and
legislative history, the panel concluded that here, where the
class is composed of individual noncitizens, each of whom is
in removal proceedings and facing an immediate violation of
their rights, and where the district court has jurisdiction over
each individual member of that class, classwide injunctive
relief is consistent with congressional intent.
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
6 PADILLA V. ICE
remand, the district court must also revisit the nationwide
scope.
Dissenting, Judge Bade wrote that 8 U.S.C. § 1252(f)(1)
barred injunctive relief in this case, concluding that the
majority’s opinion does not square with the plain text of
§ 1252(f)(1), is inconsistent with multiple Supreme Court
cases, and needlessly creates a circuit split with the Sixth
Circuit. Judge Bade further wrote that, even if the district
court had jurisdiction to issue injunctive relief, the
preliminary injunction is overbroad and exceeds what the
constitution demands. Judge Bade would vacate the
preliminary injunction and remand for further proceedings
with instructions to dismiss the claims for classwide
injunctive relief.
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.
PADILLA V. ICE 7
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.
8 PADILLA V. ICE
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.
OPINION
THOMAS, Chief Judge:
In this interlocutory appeal, we consider whether the
district court abused its discretion in granting a preliminary
injunction ordering the United States to provide bond
hearings to a class of noncitizens who were detained after
entering the United States and were found by an asylum
officer to have a credible fear of persecution. We conclude
that it did not, and we affirm the order of the district court, in
part, and direct the district court to reconsider some of the
technical aspects of its order.
I
Plaintiffs are a class of noncitizens detained pursuant to
8 U.S.C. § 1225(b). Section 1225(b) provides for “expedited
removal” of “arriving” noncitizens at ports-of-entry and
inadmissible noncitizens apprehended within the United
States who cannot prove that they have been in the United
States for more than two years. See Designating Aliens for
Expedited Removal, 84 Fed. Reg. 35,409-01, 35,413–14
PADILLA V. ICE 9
(July 23, 2019);1 see also 8 U.S.C. § 1225(b)(1)(A)(iii)(II).
Plaintiffs are in this latter category.
DHS removes noncitizens eligible for expedited removal
“without further hearing or review,” subject to only one
exception. 8 U.S.C. § 1225(b)(1)(A)(i). If the noncitizen
indicates an intent to apply for asylum or a fear of
persecution, DHS must refer the noncitizen for an interview
with an asylum officer. Id. § 1225(b)(1)(A)(ii); 8 C.F.R.
§ 208.30. If the asylum officer determines that the
noncitizen’s fear of persecution is credible, the noncitizen is
referred to full removal proceedings, in which the noncitizen
may apply for asylum or other forms of relief from removal.
See 8 U.S.C. § 1225(b)(1)(B)(ii); 8 C.F.R. §§ 208.30(f),
1003.42(f). Subject to review, if the asylum officer finds no
credible fear of persecution, the noncitizen will be removed.
8 U.S.C. § 1225(b)(1)(B)(iii). A supervisor reviews the
asylum officer’s credible fear determination, 8 C.F.R.
§§ 208.30(e)(7), 235.3(b)(2), (b)(7), and a noncitizen may
also request de novo review by an immigration judge,
8 U.S.C. § 1225(b)(1)(B)(iii)(III); 8 C.F.R. § 1003.42.
If the asylum officer determines at the time of the credible
fear interview that the noncitizen has a credible fear of
1
At the time the district court certified the class and the injunction
was issued below, the government applied expedited removal to
inadmissable noncitizens arriving at a port-of-entry and any inadmissible
noncitizen apprehended within 100 miles of the border and present in the
country for fewer than 14 days. See Designating Aliens for Expedited
Removal, 69 Fed. Reg. 48877-01, 48879–80 (Aug. 11, 2004). In July
2019, however, the Department of Homeland Security (“DHS”)
announced that it would expand expedited removal to the statutory limit.
See Designating Aliens for Expedited Removal, 84 Fed. Reg. 35,409-01,
35,413–14 (July 23, 2019); see also 8 U.S.C. § 1225(b)(1)(A)(iii)(II).
10 PADILLA V. ICE
persecution, the noncitizen must “be detained for further
consideration of the application for asylum.” 8 U.S.C.
§ 1225(b)(1)(B)(ii). If the asylum officer determines that the
noncitizen does not have a credible fear of persecution, the
statute requires that the noncitizen be detained during the
review process “pending a final determination of credible fear
of persecution and, if found not to have such a fear, until
removed.” Id. § 1225(b)(1)(B)(iii)(IV).
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 credible fear interviews
and bond hearings for detained asylum seekers. Plaintiffs
moved for class certification and for a preliminary injunction
requiring “timely bond hearings that comport with due
process.”
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
PADILLA V. ICE 11
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
2
The parties later stipulated that “the Bond Hearing Class includes
individuals who otherwise satisfy the requirements for class membership
but were determined to have a credible fear of torture, rather than only
individuals determined to have a credible fear of persecution.”
12 PADILLA V. ICE
are entitled to bond hearings, as “wrongly decided.” Matter
of M-S-, 27 I. & N. Dec. 509, 510 (A.G. 2019). The AG
interpreted 8 U.S.C. § 1225(b)(1)(B)(ii) to require mandatory
detention without bond hearings for asylum seekers who were
initially subject to expedited removal but later transferred to
full removal proceedings after establishing a credible fear.
See Matter of M-S-, 27 I. & N. Dec. at 515–17. Under Matter
of M-S-, the only possibility for release available to
noncitizens in this category is a discretionary grant of parole
by DHS for “urgent humanitarian reasons or significant
public benefit” pursuant to 8 U.S.C. § 1182(d)(5). Id.at 516–17. The AG delayed implementation of Matter of
M-S- for 90 days in light of its “significant impact . . . on
detention operations.” See id. at 519 n.8.
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)]
3
Plaintiffs also challenged, inter alia, the AG’s interpretation of
8 U.S.C. § 1225(b)(1)(B)(ii), but did not seek preliminary relief on that
basis.
PADILLA V. ICE 13
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.
Id.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
28 U.S.C. § 1292(a)(1). “We review the district court’s
decision to grant or deny a preliminary injunction for abuse
of discretion.” Sw. Voter Registration Educ. Project v.
Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per
curiam) (citation omitted). “Our review is limited and
4
Plaintiffs have moved to stay further appellate proceedings pending
the Supreme Court’s decision in Thuraissigiam v. DHS, 917 F.3d 1097,
1100 (9th Cir. 2019), cert. granted sub nom. DHS v. Thuraissigiam, No.
19-161, 2019 WL 5281289 (U.S. Oct. 18, 2019). The motion is DENIED.
14 PADILLA V. ICE
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
PADILLA V. ICE 15
the arguments presented by both parties and several amici
curiae and thorough review of the record, we conclude that
the district court did not abuse its discretion in issuing Part B
of the preliminary injunction and ordering that plaintiffs
receive bond hearings; however, because the record is
insufficient to support Part A of the preliminary injunction,
we remand for further findings and reconsideration with
respect to the particular process due to plaintiffs. On remand,
the district court must further develop the factual record and
revisit the scope of injunctive relief.
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
16 PADILLA V. ICE
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
PADILLA V. ICE 17
convincing evidence that an arrestee presents an identified
and articulable threat to an individual or the community”);
Foucha v. Louisiana, 504 U.S. 71, 79 (1992) (individual
entitled to “constitutionally adequate procedures to establish
the grounds for his confinement”); Kansas v. Hendricks,
521 U.S. 346, 360, 364 (1997) (civil commitment statute that
provided for confinement of “only a narrow class of
particularly dangerous individuals, and then only after
meeting the strictest procedural standards,” did not violate
due process). Indeed, the Supreme Court has required
individualized hearings for far lesser interests. See Zadvydas,
533 U.S. at 692 (criticizing administrative custody reviews
and noting “[t]he Constitution demands greater procedural
protection even for property”); Goldberg v. Kelly, 397 U.S.
254, 268 (1970).
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
18 PADILLA V. ICE
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 question
presented by potentially indefinite detention by construing the
PADILLA V. ICE 19
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 8 U.S.C. § 1226(c). The Court held that this
“narrow” detention policy “during the limited period”
necessary to arrange for removal was reasonably related to
the government’s purpose of effectuating removal and
protecting public safety for reasons that do not apply here.
Demore, 538 U.S. at 526–28; see also Jennings, 138 S. Ct.
at 869 (Breyer, J., dissenting) (describing Demore as “a
deviation from the history and tradition of bail and alien
detention”). In particular, the Court in Demore placed great
weight on congressional findings that the particular
individuals subject to this detention policy presented a
heightened risk of flight and danger to the community.
Demore, 538 U.S. at 518–20. The Court also emphasized that
the periods of detention at issue were typically very short—an
average of 47 days and a median of 30 days in approximately
85 percent of cases, and an average of four months and a
slightly shorter median time in the remaining 15 percent of
cases. See id. at 529–30.5 Further, the Court observed, these
5
We acknowledge, however, that the government recently informed
the Supreme Court that, with respect to duration of detention, “the
20 PADILLA V. ICE
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 8 U.S.C. § 1182(d)(5)(A). See Matter of M-S-,
27 I. & N. Dec. at 519. By statute, however, DHS may parole
noncitizens “only on a case-by-case basis for urgent
humanitarian reasons or significant public benefit.” 8 U.S.C.
statistics it gave to the Court in Demore were wrong.” Jennings, 138
S. Ct. at 869 (Breyer, J., dissenting).
PADILLA V. ICE 21
§ 1182(d)(5)(A); 8 C.F.R. § 212.5 (parole is “generally []
justified only on a case-by-case basis for ‘urgent
humanitarian reasons’ or ‘significant public benefit,’
provided the aliens present neither a security risk nor a risk of
absconding”). Moreover, parole decisions are solely in the
discretion of the Secretary of DHS and are not judicially
reviewable, 8 U.S.C. § 1252(a)(2)(B)(ii),6 although
individuals may seek a reconsideration based on changed
circumstances, 8 C.F.R. § 212.5. The “term of parole expires
‘when the purposes of such parole . . . have been served.’”
Matter of M-S-, 27 I. & N. Dec. at 516 (noting limited
circumstances under which parole may be granted by statute
(quoting 8 U.S.C. § 1182(d)(5)(A))). By its terms, therefore,
the parole process does not test the necessity of detention; it
contains no mechanisms for ensuring that a noncitizen will be
released from detention if his or her detention does not
“bear[] [a] reasonable relation,” Zadvydas, 533 U.S. at 690,
to the government’s “legitimate interests in protecting the
public [or] in ensuring that non-citizens in removal
proceedings appear for hearings,” Hernandez, 872 F.3d at
990.
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
6
These sections refer to the AG, but those functions have been
transferred to the Secretary of DHS. See 6 U.S.C. §§ 251, 552(d); Clark
v. Suarez Martinez, 543 U.S. 371, 374 n.1 (2005).
22 PADILLA V. ICE
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.
PADILLA V. ICE 23
4
The government also insists that plaintiffs’ detention
without bond does not present due process concerns because
each individual alien can file a habeas petition to challenge
the legality of his or her detention. In essence, the
government argues for transferring the work of bond hearings
in the first instance from the immigration courts to the district
courts. Judicial economy would not be well-served by such
a system.
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 § 2241 petition is filed or only
potentially forthcoming.”), vacated as moot, 890 F.3d 952(11th Cir. 2018). Plaintiffs should not be required to endure
further delays while they contest the constitutionality of their
detention.
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
24 PADILLA V. ICE
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
PADILLA V. ICE 25
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 rights
and privileges not extended to those in the former category
who are merely ‘on the threshold of initial entry’” (quoting
Mezei, 345 U.S. at 212)); Kwai Fun Wong v. United States,
373 F.3d 952, 973 (9th Cir. 2004) (explaining that “the entry
fiction is best seen . . .as a fairly narrow doctrine that
primarily determines the procedures that the executive branch
must follow before turning an immigrant away” because
“[o]therwise, the doctrine would allow any number of abuses
to be deemed constitutionally permissible merely by labelling
certain ‘persons’ as non-persons”). We thus conclude that the
district court did not err in holding that plaintiffs are
“persons” protected by the Due Process Clause.
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,
26 PADILLA V. ICE
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’
PADILLA V. ICE 27
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 remanded on other
grounds, 132 S. Ct. 1204 (2012)); see also id. at 500 n.1
(noting that “[i]ndividual justices, in orders issued from
chambers, have expressed the view that a state suffers
irreparable injury when one of its laws is enjoined, [but] [n]o
opinion for the Court adopts this view” (citations omitted)).
The district court thus did not commit legal error in this
respect. See also Robbins, 715 F.3d at 1145 (finding that
balance of equities favored detained noncitizens and noting
that the government “cannot suffer harm from an injunction
that merely ends an unlawful practice”).
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
28 PADILLA V. ICE
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
PADILLA V. ICE 29
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
the preliminary injunction, we remand this case to the district
court for further factual development on the Winter factors
with respect to Part A of the preliminary injunction. As set
forth below, we also direct the district court on remand to
revisit the injunction’s scope.
V
The defendants argue that, under 8 U.S.C. § 1252(f)(1),
the district court lacked authority to grant injunctive relief in
this case. We disagree.
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 [8 U.S.C.
§§ 1221–1232], other than with respect to the application of
30 PADILLA V. ICE
such provisions to an individual alien against whom
proceedings under such part have been initiated.” All of the
individuals in the plaintiff class here are “individual[s]
against whom proceedings under such part have been
initiated.” See id.Although the Supreme Court has analyzed the impact of
§ 1252(f)(1) on classwide relief in suits filed by
organizations, it has never had an opportunity to consider the
meaning of the statute’s exception clause and its effect on the
availability of classwide relief where every member of a class
is “an individual alien against whom proceedings under such
part have been initiated.” See id. The Supreme Court
observed in Reno v. American-Arab Anti-Discrimination
Committee (“AADC”) that § 1252(f)(1) is “nothing more or
less than a limit on injunctive relief. It prohibits federal
courts from granting classwide injunctive relief against the
operation of §§ 1221–1231, but specifies that this ban does
not extend to individual cases.” 525 U.S. 471, 481–82
(1999). The Court made this observation in the course of
rejecting an argument that the subsection provided an
affirmative grant of jurisdiction. See id.Because AADC was not a class action, “[t]he Court in
AADC did not consider, and had no reason to consider, the
application of § 1252(f)(1) to [] a class” in which “[e]very
member . . . falls within the provision’s exception.”
Jennings, 138 S. Ct. at 875 (2018) (Breyer, J., dissenting). In
Jennings, the Supreme Court made clear that the question is
unresolved, quoting AADC, but remanding to this court to
consider in the first instance whether classwide injunctive
relief is available under § 1252(f)(1)). See id. at 851.
PADILLA V. ICE 31
As we noted in Rodriguez v. Marin, § 1252(f)(1) does not
on its face bar class actions or classwide relief. 909 F.3d 252,
256 (9th Cir. 2018) (remanding in turn to the district court to
consider in the first instance whether § 1252(f)(1) precluded
the injunctive relief sought there). We decline the
government’s invitation to read into the text, or in AADC, a
broad but silent limitation on the district court’s powers under
Federal Rule of Civil Procedure 23. “In the absence of a
direct expression by Congress of its intent to depart from the
usual course of trying ‘all suits of a civil nature’ under the
Rules established for that purpose, class relief is appropriate
in civil actions brought in federal court.” Califano v.
Yamasaki, 442 U.S. 682, 700 (1979).
Section 1252(f)(1)’s silence as to class actions is
especially significant because its neighboring subsection,
§ 1252(e)(1)(B), adopted at the same time by the same
Congress, expressly prohibits class actions. See 8 U.S.C.
§ 1252(e)(1)(B) (barring courts from “certify[ing] a class
under Rule 23 . . . in any action for which judicial review is
authorized under a subsequent paragraph of this subsection”);
see also Trump v. Hawaii, 138 S. Ct. 2392, 2408 (2018).
Congress knows how to speak unequivocally when it wants
to alter the availability of class actions in immigration cases.
It did not do so here. See Hayes, 591 F.3d at 1119
(construing § 1252(f)(1) narrowly as not banning classwide
declaratory relief in light of § 1252(e)’s breadth); Am.
Immigration Lawyers Ass’n v. Reno (“AILA”), 199 F.3d 1352,
1359 (D.C. Cir. 2000) (noting that § 1252(e) contains a “ban
on class actions” while § 1252(f)(1) contains a different
limitation); see also Barnhart v. Sigmon Coal Co., 534 U.S.
438, 452 (2002) (“[W]hen Congress includes particular
language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that
32 PADILLA V. ICE
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” (quotation marks and citation
omitted)).
The government contends that our interpretation of
§ 1252(f)(1) as applied to this case renders superfluous the
word “individual” in the phrase “individual alien.” However,
the word “individual” is not superfluous if Congress intended
it to prohibit injunctive relief with respect to organizational
plaintiffs. Cf. Califano, 442 U.S. at 701 (explaining that a
statute authorizing a suit by “any individual” and
“contemplat[ing] case-by-case adjudication” does not
foreclose classwide relief because “[w]here the district court
has jurisdiction over the claim of each individual member of
the class, [FRCP] 23 provides a procedure by which the court
may exercise that jurisdiction over the various individual
claims in a single proceeding”); Brown v. Plata, 563 U.S.
493, 531 (2011) (provision stating that a remedy shall extend
no further than necessary to remedy the violation of the rights
of a “particular plaintiff or plaintiffs” was not a limitation on
classwide injunctive relief, but instead meant that the “scope
of the order must be determined with reference to the
constitutional violations established by the specific plaintiffs
before the court”).
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 § 1252(f)(1) after a period in which organizations
and classes of persons, many of whom were not themselves
in proceedings, brought preemptive challenges to the
enforcement of certain immigration statutes. See, e.g., Reno
PADILLA V. ICE 33
v. Catholic Soc. Servs., Inc., 509 U.S. 43, 47–51 (1993)
(appeal from orders invalidating INS regulations in class
actions brought by immigration rights groups); McNary v.
Haitian Refugee Ctr., Inc., 498 U.S. 479, 487–88 (1991)
(appeal from order holding certain INS practices
unconstitutional and requiring INS to modify its practices in
action brought by immigrant rights group on behalf of a class
of farmworkers); Haitian Refugee Ctr. v. Smith, 676 F.2d
1023, 1026 (5th Cir. Unit B 1982) (affirming finding that new
asylum procedures violated due process in case brought by an
organization on behalf of a class of Haitians who had
petitioned for political asylum); see also AILA, 199 F.3d at1359–60 (“Congress meant to allow litigation challenging the
new system by, and only by, aliens against whom the new
procedures had been applied”).
The statute’s legislative history also reveals that Congress
was concerned that § 1252(f)(1) not hamper a district court’s
ability to address imminent rights violations. See H.R. Rep.
No. 104-469(I), at 161 (1996) (explaining that § 1252(f)(1)
limited courts’ “authority to enjoin procedures established by
Congress to reform the process of removing illegal aliens
from the U.S.,” but preserved their ability to “issue injunctive
relief pertaining to the case of an individual alien, and thus
protect against any immediate violation of rights”). This
history supports the view that Congress intended § 1252(f)(1)
to restrict courts’ power to impede the new congressional
removal scheme on the basis of suits brought by
organizational plaintiffs and noncitizens not yet facing
proceedings under 8 U.S.C. §§ 1221–1232. Here, where the
class is composed of individual noncitizens, each of whom is
in removal proceedings and facing an immediate violation of
their rights, and where the district court has jurisdiction over
34 PADILLA V. ICE
each individual member of that class, classwide injunctive
relief is consistent with that congressional intent.
Thus, upon interlocutory review, we conclude that
§ 1252(f)(1) did not bar the district court from granting
preliminary injunctive relief for this class of noncitizens, each
of whom is an individual noncitizen against whom removal
proceedings have been initiated.
VI
Although defendants dispute the district court’s authority
to issue classwide injunctive relief under § 1252(f)(1),
defendants do not challenge the scope of the preliminary
injunction. We conclude that the district court did not abuse
its discretion in granting a preliminary injunction with respect
to the nationwide class.
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.
PADILLA V. ICE 35
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 not seek to appeal class
certification on any grounds, nor have they suggested at any
point during this appeal that the nationwide scope of the
certified class is improper. We have already concluded that
the district court did not abuse its discretion in holding that
members of the certified class are constitutionally entitled to
bond hearings. Therefore, we cannot conclude that the
7
The district court rejected defendants’ request to limit the class to
individuals located in the Western District of Washington. Id. The court
noted that class representatives were transferred all over the country
before landing in Washington and that detained immigrants are routinely
transferred throughout the country prior to adjudicating their cases. Id.The court also found that defendants apply a uniform “indefinite
detention” policy across the country and that class members face the same
allegedly improper circumstances of detention regardless of their location.
Id. The court could not identify—and defendants did not cite—any
ongoing litigation of the same issue in other districts. Id. Finally, noting
that the overwhelming majority of class members are not sufficiently
resourced to pursue individual litigation, the court rejected defendants’
argument that class members should be afforded the opportunity to seek
“speedier individual recovery.” Id. Defendants have not raised any
similar arguments on appeal.
36 PADILLA V. ICE
district court abused its discretion in issuing classwide
preliminary injunctive relief. Nonetheless, on remand, in
considering the appropriate procedures that must be followed
with respect to the required bond hearings, the district court
must revisit the nationwide scope of the injunction to ensure
that it is not “more burdensome than necessary to redress the
complaining parties.” See Califano, 442 U.S. at 702.
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.
PADILLA V. ICE 37
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 8 U.S.C.
§ 1225(b)(1)(B)(ii). But Congress plainly barred lower courts
from issuing such injunctions except as to “an individual
alien,” 8 U.S.C. § 1252(f)(1), and the Supreme Court has
construed § 1252(f)(1) as a jurisdictional bar on a lower
court’s ability to issue classwide injunctive relief. Despite
this authority (and the plain language of the statute, general
statutory construction principles, and the holdings of two of
our sister circuits), the majority opinion finds jurisdiction in
this case.
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.
38 PADILLA V. ICE
8 U.S.C. § 1252(f)(1). Recognizing the simplicity of this
language, the Supreme Court has repeatedly interpreted this
statute as a bar on classwide injunctive relief against the
operation of 8 U.S.C. §§ 1221–1232. See Jennings v.
Rodriguez, 138 S. Ct. 830, 851 (2018) (confirming that
§ 1252(f)(1) bars federal courts from issuing classwide
injunctive relief against the operation of §§ 1221–1232);
Nken v. Holder, 556 U.S. 418, 431 (2009) (describing
§ 1252(f)(1) as “a provision prohibiting class wide
injunctions against the operation of removal provisions”);
Reno v. Am.-Arab Anti-Discrimination Comm. (“AADC”),
525 U.S. 471, 481–82 (1999) (“By its plain terms, and even
by its title, that provision is nothing more or less than a limit
on injunctive relief. It prohibits federal courts from granting
classwide injunctive relief against the operation of
§§ 1221–123[2], but specifies that this ban does not extend to
individual cases.”).
The majority opinion brushes these cases aside because
the Supreme Court has yet to construe § 1252(f)(1) in a case
brought by a class of aliens all of whom were in removal
proceedings. Maj. Op. 30–31. Although the majority opinion
is correct that AADC and Nken were not class actions brought
by aliens in removal proceedings, Jennings was such a class
proceeding. And in that case, the Court was dubious that a
lower court would have jurisdiction to issue a classwide
injunction in the context of a constitutional challenge to
§§ 1221–1232. See Jennings, 138 S. Ct. at 851 (explaining
that the Ninth Circuit’s reasoning for exercising jurisdiction
over a class action statutory claim seeking injunctive relief
PADILLA V. ICE 39
against the operation of §§ 1225–1226 “does not seem to
apply to an order granting relief on constitutional grounds”).1
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 § 1252(f)(1) as dicta, we are “advised to follow” them.
Lemoge v. United States, 587 F.3d 1188, 1193 (9th Cir. 2009)
(quoting Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1129
(9th Cir. 2006) (en banc)); see, e.g., United States v. Montero-
Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir. 2000) (en banc)
(noting that “Supreme Court dicta have a weight that is
greater than ordinary judicial dicta as prophecy of what that
Court might hold” (internal quotation marks and citation
omitted)). The majority opinion does not follow the Court’s
interpretation of § 1252(f)(1), but then fails to persuasively
explain why the Court would—despite its skepticism in
Jennings—rule differently in the circumstances of this case.
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 § 1252(f)(1)’s plain language and
misapplication of statutory construction principles.
1
In Jennings, the Ninth Circuit exercised jurisdiction over a statutory
challenge brought by a class of aliens in removal proceedings because the
claim was premised on conduct allegedly “not authorized by the statutes”
and therefore the claim did not go to the “operation of” the removal
provisions. 138 S. Ct. at 851. Here, in contrast, Plaintiffs do not argue
that their constitutional challenge seeks to prevent conduct not authorized
by § 1225(b)(1)(B)(ii); they directly challenge the “operation of” that
statute.
40 PADILLA V. ICE
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 § 1252(f)(1)—specifically its
interpretation of “an individual alien”—departs from this
long-established rule. As the majority opinion construes the
statute, the word “individual” stands as a mere superfluity.
See Hamama v. Adducci (“Hamama I”), 912 F.3d 869, 877
(6th Cir. 2018) (“There is no way to square the concept of a
class action lawsuit with the wording ‘individual’ in
[§ 1252(f)(1)].”).
The majority opinion defines “individual” as the opposite
of “organization,” apparently concluding that Congress added
“individual” to § 1252(f)(1) to ensure that “alien” refers to a
person, not an artificial entity. Maj. Op. 32. But this
definition renders “individual” superfluous because an
organizational or artificial entity “alien” does not exist for
purposes of the immigration statutes. See 8 U.S.C.
§ 1101(a)(3) (defining “alien” as “any person not a citizen or
national of the United States”). To be given effect,
“individual” can only be read as an adjective providing a
separate, numerical limitation on the clause’s noun, “alien.”
See Individual, Black’s Law Dictionary (11th ed. 2019)
(defining “individual” when used as an adjective as
“[e]xisting as an indivisible entity” or “[o]f, relating to, or
involving a single person or thing, as opposed to a group”
(emphasis added)).2
2
The Dictionary Act instructs that when a statute includes a word
“importing the singular,” that word applies to “several persons, parties, or
things” “unless the context indicates otherwise.” 1 U.S.C. § 1. Here,
PADILLA V. ICE 41
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., 8 U.S.C.
§§ 1252(a)(2)(C), 1252(b)(3)(B), 1252(b)(4)(C), 1252(b)(9),
1252(e)(1)(A), 1252(e)(4)(B), 1252(f)(2), 1252(g).3 Had
Congress used either of these alternatives, there would be no
separate numerical limitation on “alien,” there would be no
reason for us to define “individual,” and the majority
opinion’s perceived legislative goal of preventing
organization-led preemptive challenges to immigration
statutes would be achieved. But we cannot rewrite the
statute, see Dodd v. United States, 545 U.S. 353, 359 (2005)
(“[W]e are not free to rewrite the statute that Congress has
enacted.”), nor can we overlook Congress’s use of different
language in separate provisions of the same statute, see Sosa
v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004). Congress
specifically precluded lower courts from issuing injunctive
relief except as to “an individual alien,” and that is the
language we must enforce. See Dodd, 545 U.S. at 359. And
because Congress “use[d] certain language in one part of the
statute and different language in another, [we] assume[]
different meanings were intended.” Sosa, 542 U.S. at 711 n.9
(citation omitted).
“alien” is a singular term and thus should generally be construed as
applying to multiple aliens. The context of § 1252(f)(1), however,
indicates otherwise: by adding the adjective “individual,” Congress
placed a specific, standalone numerical limitation on the term “alien.” If
the Dictionary Act required both “individual” and “alien” to be read as
applying to multiple persons, “individual” becomes superfluous.
3
In § 1252, the phrase “an individual alien” is found only in
subsection (f)(1), while “an alien” and “any alien” are used fifteen times
in subsections (a), (b), (e), (f)(2), and (g).
42 PADILLA V. ICE
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,
8 U.S.C. § 1252(e)(1)(B). Maj. Op. 31–32. But barring class
certification altogether (the function of § 1252(e)(1)(B))
fundamentally differs from barring a type of relief that a court
can issue (the function of § 1252(f)(1)). The two statutes
serve different purposes, and § 1252(f)(1) does not preclude
class actions wholesale; it narrowly limits the available relief.
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
§ 1252(f)(1). This reliance on Califano, a case analyzing a
provision in the Social Security Act, 42 U.S.C. § 405(g), is
misplaced. In Califano, the Court found that a statute
affirmatively authorizing a suit by “[a]ny individual” did not
foreclose class actions because Federal Rule of Civil
Procedure 23 “provides a procedure by which [a] court may
exercise . . . jurisdiction over the various individual claims in
a single proceeding.” 442 U.S. at 701. But 42 U.S.C.
§ 405(g) and 8 U.S.C. § 1252(f)(1) differ materially in form
and in substance. The former explicitly authorizes “[a]ny
individual” to file a lawsuit and thus is a jurisdictional
conferring statute. See 42 U.S.C. § 405(g). It does not
prohibit a court from issuing a specific form of relief, nor
does it carve out an exception to a general statutory bar. In
contrast, the latter is a jurisdictional stripping statute that
categorically bars a type of relief but carves out a narrow
exception for “an individual alien.” See 8 U.S.C.
§ 1252(f)(1). It does not fully foreclose a class or multi-party
lawsuit, see Rodriguez v. Marin, 909 F.3d 252, 259 (9th Cir.
PADILLA V. ICE 43
2018), nor does it grant jurisdiction, see AADC, 525 U.S.
at 481–82. And in contrast to § 405(g)’s use of “individual”
as a standalone noun, § 1252(f)(1) uses “individual” as an
adjective to numerically limit “alien.” In short, Califano
“does not stop the [c]ourt from looking at a particular statute
that uses the word ‘individual’ and determining that, even if
the use of ‘individual’ does not always bar class actions, it
does bar them in the particular statute at issue.” Hamama I,
912 F.3d at 878.
Section 1252(f)(1)’s title (“Limit on injunctive relief”)
and its first clause (“Regardless of the nature of the action or
claim or of the identity of the party or parties bringing the
action”) further demonstrate its functional difference from
8 U.S.C. § 1252(e)(1)(B) and 42 U.S.C. § 405(g). As
recognized by the Supreme Court, § 1252(f)(1)’s title
portends what the language of the statute makes plain: the
statute generally prohibits injunctive relief. See AADC,
525 U.S. at 481–82. And its opening clause recognizes that
a lower court has jurisdiction over cases filed by multiple
“parties,” but states that “[r]egardless” of whether the action
is brought by one “party” or multiple “parties,” lower courts
cannot issue injunctive relief except as to “an individual alien
against whom proceedings under such part have been
initiated.” 8 U.S.C. § 1252(f)(1). Thus, by its explicit terms,
§ 1252(f)(1) bars both classwide injunctions and injunctive
relief for aliens who are not in removal proceedings.
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.”
44 PADILLA V. ICE
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 ambiguity in § 1252(f)(1), nor have I discovered any such
language.
In any event, the scant discussion in the statute’s
legislative history specifically addressing § 1252(f)(1) does
not salvage the majority opinion’s interpretation. Without
explaining the relevance, the majority opinion first notes that
Congress enacted § 1252(f)(1) after a “period” when
organizational plaintiffs filed “preemptive challenges” against
“the enforcement of certain immigration statutes.” Maj. Op.
32. This statement may be true as far as it goes, but we
should not bootstrap our interpretation of a statute on a
hypothesis that Congress silently intended the legislation to
prevent organization-led preemptive lawsuits of which it may
have been unaware.4
The majority opinion also relies on a House Committee
report to support its reading of § 1252(f)(1) as allowing
classwide injunctive relief when each class member “is in
removal proceedings and facing an immediate violation of
4
We, of course, can assume that Congress was “aware of relevant
judicial precedent” when it enacted § 1252(f)(1), see Merck & Co. v.
Reynolds, 559 U.S. 633, 648 (2010), but for what “relevant judicial
precedent” would we assume such Congressional awareness? The
majority opinion does not identify any pre-§ 1252(f)(1) case addressing
the threshold jurisdictional question at issue here—nor can it: the
statutory bar on classwide injunctive relief did not exist until the
enactment of § 1252(f)(1) in 1996.
PADILLA V. ICE 45
rights.” Maj. Op. 33–34. The relevant portion of this report
provides, in full, as follows:
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
46 PADILLA V. ICE
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 § 1252(f)(1). It is ambiguous
at best and cannot override the clear statutory language. See
Azar v. Allina Health Servs., 139 S. Ct. 1804, 1814 (2019)
(“[E]ven those of us who believe that clear legislative history
can illuminate ambiguous text won’t allow ambiguous
legislative history to muddy clear statutory language.”
(internal quotation marks and citation omitted)).
V.
I am not the first to conclude that § 1252(f)(1) bars
classwide injunctive relief under the circumstances of this
case. In a constitutional challenge to continued detention
under the immigration statutes brought by a class of aliens in
removal proceedings, the Sixth Circuit applied the Supreme
Court’s reading of § 1252(f)(1) to hold that the statute bars
classwide injunctive relief. See Hamama I, 912 F.3d at 877
(“In our view, [AADC] unambiguously strips federal courts
of jurisdiction to enter class-wide injunctive relief[.]”); see
also Hamama v. Adducci (“Hamama II”), 946 F.3d 875, 877
(6th Cir. 2020) (“Congress stripped all courts, save for the
Supreme Court, of jurisdiction to enjoin or restrain the
operation of 8 U.S.C. §§ 1221–1232 on a class-wide basis.”
(citing 8 U.S.C. § 1252(f)(1))). The Tenth Circuit reached the
same result. See Van Dinh v. Reno, 197 F.3d 427, 433 (10th
Cir. 1999) (holding that Ҥ 1252(f) forecloses jurisdiction to
grant class-wide injunctive relief to restrain operation of
§§ 1221–[12]3[2] by any court other than the Supreme
Court”).
PADILLA V. ICE 47
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
§ 1252(f)(1) does not bar classwide injunctive relief.
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
48 PADILLA V. ICE
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
[§ 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.” Id. In
Part B, the district court also found that “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.” Id.
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 respect to the
requirement that the class members receive a bond hearing
within seven days of making such a request or be released.”
Maj. Op. 28. The majority opinion finds that the record “does
not contain sufficient specific evidence justifying a seven-day
timeline, as opposed to a 14-day, 21-day, or some other
timeline.” Maj. Op. 28. Ultimately, the majority opinion
affirms Part B “except to the extent that it requires that bond
hearings be administered under the conditions enumerated in
Part A” and remands Part A for “further factual development
and consideration” of the bond hearing procedures. Maj. Op.
36.
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 § 1225(b)(1)(B)(ii).
Nonetheless, in Part B the district court deems the statute
PADILLA V. ICE 49
unconstitutional in its entirety, rather than as applied to the
Bond Hearing Class. See Padilla, 387 F. Supp. 3d at 1232
(“[F]ind[ing] 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[.]”).
Section 1225(b)(1)(B)(ii) requires the government to detain
multiple categories of aliens, not only those aliens who meet
the definition of the Bond Hearing Class.5 But the district
court did not exclude from its sweeping finding of
unconstitutionality the application of the statute to detain
other aliens who are not members of the Bond Hearing Class,
such as “arriving” aliens under § 1225(b)(1)(A)(ii). By
rendering § 1225(b)(1)(B)(ii) wholly unconstitutional, Part B
is overbroad.6
5
Section 1225(b)(1)(B)(ii) mandates detention of any alien referred
to in § 1225(b)(1)(A)(ii) who an asylum officer determines has a credible
fear of persecution. See 8 U.S.C. § 1225(b)(1)(B)(i)–(ii). Section
1225(b)(1)(A)(ii) refers to two types of aliens: (1) those “arriving in the
United States”; and (2) those “described” in § 1225(b)(1)(A)(iii),
including an alien “who has not been admitted or paroled into the United
States, and who has not affirmatively shown . . . that the alien has been
physically present in the United States continuously for the 2-year period
immediately prior to the date of the determination of inadmissibility.”
8 U.S.C. § 1225(b)(1)(A)(ii)–(iii). Members of the Bond Hearing Class
are in the latter group, and do not include arriving aliens.
6
The law has long recognized a distinction between the process due
to aliens arriving at our borders and to those who have already entered the
country. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“It is
well established that certain constitutional protections available to persons
inside the United States are unavailable to aliens outside of our geographic
borders.”). And unlike members of the Bond Hearing Class, arriving
aliens have not entered the country. See, e.g., Alvarez-Garcia v. Ashcroft,
378 F.3d 1094, 1097 (9th Cir. 2004) (“[A]lthough aliens seeking
admission into the United States may physically be allowed within its
50 PADILLA V. ICE
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
period generally understood to be six months. See Clark v.
Martinez, 543 U.S. 371, 386 (2005) (applying a “6-month
presumptive detention period”); Demore v. Kim, 538 U.S.
510, 527–31 (2003) (upholding as constitutional the detention
of aliens for the entire duration of removal proceedings under
8 U.S.C. § 1226(c)); Zadvydas, 533 U.S. at 699, 701–02
(holding that six months is a “presumptively reasonable
period of detention” under 8 U.S.C. § 1231(a)(6)); Marin,
909 F.3d at 256–57 (expressing doubt “that any statute that
allows for arbitrary prolonged detention without any process
is constitutional”); Diouf v. Napolitano, 634 F.3d 1081, 1092
n.13 (9th Cir. 2011) (defining detention under 8 U.S.C.
§ 1231(a)(6) as “prolonged when it has lasted six months and
is expected to continue more than minimally beyond six
months”).7
borders pending a determination of admissibility, such aliens are legally
considered to be detained at the border and hence as never having effected
entry into this country.”). The detention of arriving aliens under
§ 1225(b)(1)(B)(ii) was not an issue before the district court (or this court)
in this as-applied challenge.
7
The impact of a longer detention period runs deeper than the
preliminary injunction; it creates an Article III standing dilemma for the
Bond Hearing Class. Standing requires, among other things, an actual or
PADILLA V. ICE 51
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 § 1252(f)(1), is inconsistent with multiple Supreme Court
cases, and needlessly creates a circuit split. Despite Congress
unequivocally barring lower courts from issuing classwide
injunctions against the operation of certain immigration
statutes, the majority opinion gives a green light for the
district courts in this circuit (as well as this court) to issue
(and uphold) such relief. And, even if the district court had
jurisdiction to issue injunctive relief, the preliminary
imminent injury in fact, see Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992), and “at least one named plaintiff” in a class action must
establish standing, see Bates v. United Parcel Serv., Inc., 511 F.3d 974,
985 (9th Cir. 2007) (en banc). As the district court found, the longest
period a named plaintiff for the Bond Hearing Class waited to obtain a
bond hearing after securing a positive credible fear determination was
about three weeks, see Padilla, 2019 WL 1056466, at *1–2, a period far
shorter than the presumptively reasonable six months.
8
As to the other procedural requirements imposed by the district court
in Part A of the preliminary injunction (e.g., placing the burden of proof
on the government, requiring the government to record the bond hearing
and produce the recording or a verbatim transcript on appeal, and
requiring the government to provide a written decision with particularized
determinations of individualized findings on the same day as the hearing),
I agree with the majority opinion that the record does not support those
procedures, and I find it exceedingly unlikely that the Constitution
mandates them.
52 PADILLA V. ICE
injunction is overbroad and exceeds what the Constitution
demands.
I would vacate the preliminary injunction and remand for
further proceedings with instructions to dismiss the claims for
classwide injunctive relief. I respectfully dissent.