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U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:18-cv-01869-JSC

CONSENT

Aleman Gonzalez et al v. Whitaker, et al Assigned to: Magistrate Judge Jacqueline Scott Corley Case in other court: U.S. Supreme Court, 20-00322 Cause: 8:1105(a) Aliens: Habeas Corpus to Release INS Detainee

Date Filed: 03/27/2018 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff Esteban Aleman Gonzalez

represented by Judah Ben Lakin Lakin & Wille LLP 1939 Harrison Street Suite 420 Oakland, CA 94612 United Sta 510-379-9216 Email: judah@lakinwille.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison Edith Pennington Immigrant Legal Defense 1322 Webster St., Suite 300 Oakland Oakland, CA 94612 510.467.0655 Email: alison@immigrantlegaldefense.org ATTORNEY TO BE NOTICED

Amalia Margarete Wille Lakin & Wille LLP 1939 Harrison Street, Suite 420 Oakland, CA 94612 510-379-9216

Fax: 510-379-9219 Email: amalia@lakinwille.com ATTORNEY TO BE NOTICED
Bardis Vakili ACLU of San Diego and Imperial Counties P.O Box 87131 San Diego, CA 92138 619-232-2121 Fax: 619-232-0036 Email: bvakili@aclusandiego.org ATTORNEY TO BE NOTICED
Carolina Martin Ramos Centro Legal de la Raza 3400 E. 12th Street Oakland, CA 94601 510-437-9111 Fax: 510-437-9164 Email: cmartinramos@centrolegal.org TERMINATED: 12/11/2020
Jesse Mica Newmark Centro Legal de la Raza 3400 E. 12th Street Oakland, CA 94601 510-761-5762 Fax: 510-437-9164 Email: jessenewmark@centrolegal.org ATTORNEY TO BE NOTICED
John Nicholas Sinodis Van Der Hout, LLP 180 Sutter St., Fifth Floor San Francisco, CA 94109 415-821-8820 Fax: 415-981-3003 Email: jsin@vblaw.com ATTORNEY TO BE NOTICED
Julia Harumi Mass American Civil Liberties Union of Northern California, Inc.

39 Drumm Street San Francisco, CA 94111 415-621-2493 Fax: 415-255-8437 Email: jmass@aclunc.org TERMINATED: 09/10/2018
Julia Rabinovich Centro Legal de la Raza 3400 E. 12th Street Outten Golden LLP Oakland, CA 94601 510-437-1554 Email: jrabinovich@centrolegal.org ATTORNEY TO BE NOTICED
Lisa V Knox Centro Legal de la Raza 3400 East 12th Street Oakland, CA 94601 510-827-1171 Fax: 510-437-9164 Email: lknox@centrolegal.org TERMINATED: 12/11/2020
Marc Van Der Hout Van Der Hout, LLP 180 Sutter Street, Suite 500 San Francisco, CA 94104 (415) 981-3000 Fax: (415) 981-3003 Email: ndca@vblaw.com ATTORNEY TO BE NOTICED
Matthew Harrison Green Law Offices of Matthew H. Green 130 W. Cushing Street Tucson, AZ 85701 United Sta (520)882-8852 Fax: 5208828843 Email: matt@arizonaimmigration.net ATTORNEY TO BE NOTICED
Michael Bryan Kaufman

Plaintiff Eduardo Gutierrez Sanchez

ACLU of Southern California 1313 West 8th Street Los Angeles, CA 90017 213-977-5284 Fax: 213-977-5297 Email: mkaufman@aclusocal.org ATTORNEY TO BE NOTICED
Vasudha Talla ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 (415) 621-2493 Fax: (415) 255-8437 Email: vtalla@aclunc.org ATTORNEY TO BE NOTICED
represented by Judah Ben Lakin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison Edith Pennington (See above for address) ATTORNEY TO BE NOTICED
Amalia Margarete Wille (See above for address) ATTORNEY TO BE NOTICED
Bardis Vakili (See above for address) ATTORNEY TO BE NOTICED
Carolina Martin Ramos (See above for address) TERMINATED: 12/11/2020
Jesse Mica Newmark (See above for address) ATTORNEY TO BE NOTICED
John Nicholas Sinodis (See above for address)

V.
Defendant
Jefferson B. Sessions, III Attorney General, Department of Justice

ATTORNEY TO BE NOTICED
Julia Harumi Mass (See above for address) TERMINATED: 09/10/2018
Julia Rabinovich (See above for address) ATTORNEY TO BE NOTICED
Lisa V Knox (See above for address) TERMINATED: 12/11/2020
Marc Van Der Hout (See above for address) ATTORNEY TO BE NOTICED
Michael Bryan Kaufman (See above for address) ATTORNEY TO BE NOTICED
Vasudha Talla (See above for address) ATTORNEY TO BE NOTICED
represented by Mary Lynn Larakers Department of Justice Office of Immigration Litigation, District Court Section P.O. Box 868 Ben Franklin Station Washington, DC 20044 202-353-4419 Email: mary.l.larakers@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Patrick Seamon U.S. Department of Justice, Civil Division Office of Immigration Litigation,

Defendant

District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 202-598-2648 Fax: 202-305-7000 Email: Matthew.Seamon2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theo Nickerson Department of Justice Civil Division PO Box 868 Ben Franklin Station Washington, DC 20044 202-616-8906 Fax: 202-305-7000 Email: Theo.Nickerson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cara Elizabeth Alsterberg U.S. Department of Justice Civil Division P.O. Box 868 Ben Franklin Station Washington, DC 20044 202-532-4667 Fax: 202-305-7000 Email: cara.e.alsterberg@usdoj.gov ATTORNEY TO BE NOTICED
Julian M Kurz U.S. Department of Justice Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 202-616-4962 Fax: 202-305-7000 Email: julian.m.kurz@usdoj.gov ATTORNEY TO BE NOTICED

Kirstjen Nielsen Secretary, Department of Homeland Security
Defendant James McHenry Director, Executive Office for Immigration Review, Department of Justice

represented by Mary Lynn Larakers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Patrick Seamon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theo Nickerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cara Elizabeth Alsterberg (See above for address) ATTORNEY TO BE NOTICED
Julian M Kurz (See above for address) ATTORNEY TO BE NOTICED
represented by Mary Lynn Larakers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Patrick Seamon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theo Nickerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cara Elizabeth Alsterberg (See above for address) ATTORNEY TO BE NOTICED
Julian M Kurz (See above for address) ATTORNEY TO BE NOTICED

Defendant MaryBeth Keller Chief Immigration Judge, Executive Office for Immigration Review, Department of Justice
Defendant David W. Jennings Field Office Director for the San Francisco Field Office of U.S. Immigration and Customs Enforcement, Department of Homeland Security

represented by Mary Lynn Larakers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Patrick Seamon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theo Nickerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cara Elizabeth Alsterberg (See above for address) ATTORNEY TO BE NOTICED
Julian M Kurz (See above for address) ATTORNEY TO BE NOTICED
represented by Mary Lynn Larakers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Patrick Seamon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theo Nickerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cara Elizabeth Alsterberg (See above for address) ATTORNEY TO BE NOTICED
Julian M Kurz

Defendant David O. Livingston Sheriff, Contra Costa County
Defendant Kristi Butterfield Facility Commander, West County Detention Facility, Contra Costa County

(See above for address) ATTORNEY TO BE NOTICED
represented by Mary Lynn Larakers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Patrick Seamon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theo Nickerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cara Elizabeth Alsterberg (See above for address) ATTORNEY TO BE NOTICED
Julian M Kurz (See above for address) ATTORNEY TO BE NOTICED
represented by Mary Lynn Larakers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Patrick Seamon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cara Elizabeth Alsterberg (See above for address) ATTORNEY TO BE NOTICED
Julian M Kurz (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/27/2018 03/27/2018 03/27/2018 03/27/2018 03/27/2018
03/28/2018

# Docket Text
1 COMPLAINT For Declaratory and Injunctive Relief And Petition for Writ of Habeas Corpus against Kristi Butterfield, David W. Jennings, MaryBeth Keller, David O. Livingston, James McHenry, Kirstjen Nielsen, Jefferson B. Sessions, III (Filing fee $ 400, receipt number 0971-12222349). Filed by Esteban Aleman Gonzalez. (Attachments: # 1 Civil Cover Sheet)(Lakin, Judah) (Filed on 3/27/2018) Modified on 3/28/2018 (slhS, COURT STAFF). (Entered: 03/27/2018)
2 Proposed Summons. (Lakin, Judah) (Filed on 3/27/2018) (Entered: 03/27/2018)
3 ADMINISTRATIVE MOTION to Consider Whether Case Should Be Related to Liborio Ramos v. Sessions, No. 18-CV-00413-JST filed by Esteban Aleman Gonzalez, Eduardo Gutierrez Sanchez. Responses due by 4/2/2018. (Attachments: # 1 Proposed Order, # 2 Declaration)(Wille, Amalia) (Filed on 3/27/2018) Modified on 3/28/2018 (slhS, COURT STAFF). (Entered: 03/27/2018)
4 Certificate of Interested Entities or Persons filed by Esteban Aleman Gonzalez, Eduardo Gutierrez Sanchez (VanDerHout, Marc) (Filed on 3/27/2018) Modified on 3/28/2018 (slhS, COURT STAFF). (Entered: 03/27/2018)
5 Case assigned to Magistrate Judge Jacqueline Scott Corley.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 4/10/2018. (haS, COURT STAFF) (Filed on 3/27/2018) (Entered: 03/27/2018)
6 Summons Issued as to Kristi Butterfield, David W. Jennings, MaryBeth Keller, David O. Livingston, James McHenry, Kirstjen Nielsen, Jefferson B. Sessions, III. (slhS, COURT STAFF) (Filed on 3/28/2018) (Entered: 03/28/2018)

03/28/2018 03/28/2018 03/29/2018 04/02/2018 04/03/2018 04/03/2018
04/03/2018 04/03/2018

Electronic filing error Re: 4 Affidavit filed by Eduardo Gutierrez Sanchez, Esteban Aleman Gonzalez. Incorrect event used. [err101] Corrected by Clerk's Office. No further action is necessary. (slhS, COURT STAFF) (Filed on 3/28/2018) (Entered: 03/28/2018)
Electronic filing error Re: 3 ADMINISTRATIVE MOTION to Consider Whether Case Should Be Related filed by Eduardo Gutierrez Sanchez, Esteban Aleman Gonzalez. Please re-file in its entirety into case no. 18CV-00413-JST (slhS, COURT STAFF) (Filed on 3/28/2018) (Entered: 03/28/2018)
7 CLERK'S NOTICE re 3 ADMINISTRATIVE MOTION to Consider Whether Case Should Be Related to Liborio Ramos v. Sessions, No. 18CV-00413-JST. The court has reviewed the motion and determined that no cases are related and no reassignments shall occur. (wsn, COURT STAFF) (Filed on 3/29/2018) (Entered: 03/29/2018)
8 CLERK'S NOTICE Re: Consent or Declination: Plaintiffs-Petitioners shall file a consent or declination to proceed before a magistrate judge by 4/10/2018. Note that any party is free to withhold consent to proceed before a magistrate judge without adverse substantive consequences. The forms are available at: http://cand.uscourts.gov/civilforms. (ahm, COURT STAFF) (Filed on 4/2/2018) (Entered: 04/02/2018)
9 CERTIFICATE OF SERVICE by Esteban Aleman Gonzalez, Eduardo Gutierrez Sanchez (Lakin, Judah) (Filed on 4/3/2018) (Entered: 04/03/2018)
10 SUMMONS Returned Executed by Eduardo Gutierrez Sanchez, Esteban Aleman Gonzalez. David W. Jennings served on 3/29/2018, answer due 5/29/2018; MaryBeth Keller served on 3/29/2018, answer due 5/29/2018; James McHenry served on 3/29/2018, answer due 5/29/2018; Kirstjen Nielsen served on 3/29/2018, answer due 5/29/2018; Jefferson B. Sessions, III served on 3/29/2018, answer due 5/29/2018. (Lakin, Judah) (Filed on 4/3/2018) Modified on 4/5/2018 (slhS, COURT STAFF). (Entered: 04/03/2018)
11 SUMMONS Returned Executed by Eduardo Gutierrez Sanchez, Esteban Aleman Gonzalez. David O. Livingston served on 3/30/2018, answer due 4/20/2018. (Lakin, Judah) (Filed on 4/3/2018) Modified on 4/5/2018 (slhS, COURT STAFF). (Entered: 04/03/2018)
12 SUMMONS Returned Executed by Eduardo Gutierrez Sanchez, Esteban Aleman Gonzalez. David O. Livingston served on 3/30/2018, answer due 4/20/2018. (Lakin, Judah) (Filed on 4/3/2018) Modified on 4/5/2018 (slhS, COURT STAFF). (Entered: 04/03/2018)

04/04/2018 04/04/2018 04/04/2018
04/04/2018 04/04/2018 04/05/2018 04/06/2018 04/09/2018 04/12/2018
04/12/2018

13 NOTICE of Appearance by Mary Lynn Larakers (Larakers, Mary) (Filed on 4/4/2018) (Entered: 04/04/2018)
14 NOTICE of Appearance by Matthew Patrick Seamon (Seamon, Matthew) (Filed on 4/4/2018) (Entered: 04/04/2018)
15 CLERK'S NOTICE Re: Consent or Declination: RespondentsDefendants shall file a consent or declination to proceed before a magistrate judge by 4/18/2018. Note that any party is free to withhold consent to proceed before a magistrate judge without adverse substantive consequences. The forms are available at: http://cand.uscourts.gov/civilforms. (ahm, COURT STAFF) (Filed on 4/4/2018) (Entered: 04/04/2018)
16 NOTICE of Appearance by Cara Elizabeth Alsterberg (Alsterberg, Cara) (Filed on 4/4/2018) (Entered: 04/04/2018)
17 NOTICE of Appearance by Julian M Kurz (Kurz, Julian) (Filed on 4/4/2018) (Entered: 04/04/2018)
18 NOTICE of Appearance by Theo Nickerson on behalf of all Defendants (Nickerson, Theo) (Filed on 4/5/2018) (Entered: 04/05/2018)
19 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Esteban Aleman Gonzalez, Eduardo Gutierrez Sanchez.. (Wille, Amalia) (Filed on 4/6/2018) (Entered: 04/06/2018)
20 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Kristi Butterfield, David W. Jennings, MaryBeth Keller, David O. Livingston, James McHenry, Kirstjen Nielsen, Jefferson B. Sessions, III.. (Alsterberg, Cara) (Filed on 4/9/2018) (Entered: 04/09/2018)
21 MOTION to Certify Class filed by Esteban Aleman Gonzalez, Eduardo Gutierrez Sanchez. Motion Hearing set for 5/31/2018 09:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Jacqueline Scott Corley. Responses due by 4/26/2018. Replies due by 5/3/2018. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Wille, Amalia) (Filed on 4/12/2018) (Entered: 04/12/2018)
22 MOTION for Preliminary Injunction filed by Esteban Aleman Gonzalez, Eduardo Gutierrez Sanchez. Motion Hearing set for 5/31/2018 09:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Jacqueline Scott Corley. Responses due by 4/26/2018. Replies due by 5/3/2018. (Attachments: # 1 Proposed Order)(Wille, Amalia) (Filed on 4/12/2018) (Entered: 04/12/2018)

04/12/2018 04/13/2018 04/13/2018 04/23/2018 04/24/2018 05/03/2018

23 STIPULATION WITH PROPOSED ORDER re 22

MOTION for

Preliminary Injunction , 21 MOTION to Certify Class filed by Esteban Aleman Gonzalez, Eduardo Gutierrez Sanchez. (Wille, Amalia) (Filed on 4/12/2018) (Entered: 04/12/2018)

24 ORDER by Magistrate Judge Jacqueline Scott Corley granting 23 Stipulation regarding briefing schedule on Plaintiff's Motion for Class Certification and Plaintiff's Motion for Preliminary Injunction. (ahm, COURT STAFF) (Filed on 4/13/2018) (Entered: 04/13/2018)

Set/Reset Deadlines as to 22 MOTION for Preliminary Injunction ,
21 MOTION to Certify Class . Responses due by 5/3/2018. Replies due by 5/17/2018. (ahm, COURT STAFF) (Filed on 4/13/2018) (Entered: 04/13/2018)
25 First MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-12294538.) filed by Esteban Aleman Gonzalez. (Attachments: # 1 Supplement Certificate of Good Standing)(Green, Matthew) (Filed on 4/23/2018) (Entered: 04/23/2018)
26 ORDER by Magistrate Judge Jacqueline Scott Corley granting 25 Motion for Pro Hac Vice as to Matthew Green. (ahm, COURT STAFF) (Filed on 4/24/2018) (Entered: 04/24/2018)
27 OPPOSITION/RESPONSE (re 22 MOTION for Preliminary Injunction ) filed byKristi Butterfield, David W. Jennings, MaryBeth Keller, David O. Livingston, James McHenry, Kirstjen Nielsen, Jefferson B. Sessions, III. (Attachments: # 1 Exhibit A - AG Expedited Removal Order, # 2 Exhibit B - AG Reinstatement Order, # 3 Exhibit C -
AG Notice of Referral to IJ, # 4 Exhibit D - AG Bond Decision of IJ, # 5 Exhibit E - AG Notice of Hearing, # 6 Exhibit F - AG Decision to Continue Detention, # 7 Exhibit G - GS Expedited Removal Order, # 8 Exhibit H - GS Reinstatement Order, # 9 Exhibit I - GS Notice of Referral to IJ, # 10 Exhibit J - GS Bond Order of IJ, # 11 Exhibit K - GS Notice of Hearing)(Kurz, Julian) (Filed on 5/3/2018) (Entered: 05/03/2018)

05/03/2018 05/17/2018 05/17/2018 05/23/2018
05/31/2018

28 OPPOSITION/RESPONSE (re 21 MOTION to Certify Class ) filed byKristi Butterfield, David W. Jennings, MaryBeth Keller, David O. Livingston, James McHenry, Kirstjen Nielsen, Jefferson B. Sessions, III. (Alsterberg, Cara) (Filed on 5/3/2018) (Entered: 05/03/2018)
29 REPLY in Support (re 22 MOTION for Preliminary Injunction ) filed by Esteban Aleman Gonzalez, Eduardo Gutierrez Sanchez. (Lakin, Judah) (Filed on 5/17/2018) (Entered: 05/17/2018)
30 REPLY in Support (re 21 MOTION to Certify Class ) filed by Esteban Aleman Gonzalez, Eduardo Gutierrez Sanchez. (Lakin, Judah) (Filed on 5/17/2018) (Entered: 05/17/2018)
31 ERRATA re 27 Opposition/Response to Motion,,, by Kristi Butterfield, David W. Jennings, MaryBeth Keller, David O. Livingston, James McHenry, Kirstjen Nielsen, Jefferson B. Sessions, III. (Attachments: # 1 Exhibit L)(Alsterberg, Cara) (Filed on 5/23/2018) (Entered: 05/23/2018)
32 Minute Entry for proceedings held before Magistrate Judge Jacqueline Scott Corley: Motion Hearing held on 5/31/2018 re 21
MOTION to Certify Class filed by Eduardo Gutierrez Sanchez,
Esteban Aleman Gonzalez and 22 MOTION for Preliminary Injunction filed by Eduardo Gutierrez Sanchez, Esteban Aleman Gonzalez. The motions were argued, submitted, and taken under submission. ( FTR Time: 9:02-9:58.)
Attorneys for Plaintiffs: Judah Lakin; Marc VanDerHout. Attorneys for Defendants: Cara Alsterberg; Matthew Seamon; Brianna Evans.
(This is a text-only entry generated by the court. There is no document associated with this entry.)
(ahm, COURT STAFF) (Date Filed: 5/31/2018) Modified on 6/14/2018: Matter transcribed by Joan Columbini. (rjdS, COURT STAFF). (Entered: 05/31/2018)

06/05/2018 06/14/2018 06/18/2018
06/20/2018 07/05/2018 07/10/2018

33 ORDER by Magistrate Judge Jacqueline Scott Corley granting 21

Motion to Certify Class; granting 22 Motion for Preliminary Injunction. (ahm, COURT STAFF) (Filed on 6/5/2018) (Entered: 06/05/2018)

34 TRANSCRIPT ORDER for proceedings held on 05/31/18 before Magistrate Judge Jacqueline Scott Corley by Esteban Aleman Gonzalez, for Court Reporter FTR - San Francisco. (VanDerHout, Marc) (Filed on 6/14/2018) (Entered: 06/14/2018)

35 Transcript of Proceedings held on May 31, 2018, before Judge Jacqueline Scott Corley. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, telephone number (510) 367-3043, joan.columbini.csr@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 34 Transcript Order ) Redaction Request due 7/9/2018. Redacted Transcript Deadline set for 7/19/2018. Release of Transcript Restriction set for 9/17/2018. (Related documents(s) 34 ) (Columbini, Joan) (Filed on 6/18/2018) (Entered: 06/18/2018)

36 MOTION for Clarification of the Court's June 5, 2018 Order re 33 Order on Motion to Certify Class, Order on Motion for Preliminary Injunction filed by Kristi Butterfield, David W. Jennings, MaryBeth Keller, David O. Livingston, James McHenry, Kirstjen Nielsen, Jefferson B. Sessions, III. Motion Hearing set for 7/26/2018 09:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Jacqueline Scott Corley. Responses due by 7/5/2018. Replies due by 7/12/2018. (Seamon, Matthew) (Filed on 6/20/2018) (Entered: 06/20/2018)

37 OPPOSITION/RESPONSE (re 36

MOTION for Clarification of the

Court's June 5, 2018 Order re 33 Order on Motion to Certify Class, Order on Motion for Preliminary Injunction ) filed byEsteban Aleman Gonzalez, Eduardo Gutierrez Sanchez. (Wille, Amalia) (Filed on 7/5/2018) (Entered: 07/05/2018)

38 TRANSCRIPT ORDER for proceedings held on 5/31/18 before Magistrate Judge Jacqueline Scott Corley by Kristi Butterfield, David

07/12/2018 07/12/2018
07/13/2018 07/20/2018 08/03/2018
08/07/2018 09/10/2018

W. Jennings, MaryBeth Keller, David O. Livingston, James McHenry, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, for Court Reporter Joan Columbini. (Alsterberg, Cara) (Filed on 7/10/2018) (Entered: 07/10/2018)

39 Joint MOTION for Protective Order filed by Kristi Butterfield, David W. Jennings, MaryBeth Keller, David O. Livingston, James McHenry, Kirstjen Nielsen, Jefferson Beauregard Sessions, III. Responses due by 7/26/2018. Replies due by 8/2/2018. (Seamon, Matthew) (Filed on 7/12/2018) (Entered: 07/12/2018)

40 REPLY in Support (re 36

MOTION for Clarification of the Court's

June 5, 2018 Order re 33 Order on Motion to Certify Class, Order on Motion for Preliminary Injunction) filed by Kristi Butterfield, David W. Jennings, MaryBeth Keller, David O. Livingston, James McHenry, Kirstjen Nielsen, Jefferson Beauregard Sessions, III. (Seamon, Matthew) (Filed on 7/12/2018) Modified on 7/13/2018 (slhS, COURT STAFF). (Entered: 07/12/2018)

41 ORDER by Magistrate Judge Jacqueline Scott Corley granting 39 Stipulated Protective Order. (ahm, COURT STAFF) (Filed on 7/13/2018) (Entered: 07/13/2018)

42 ORDER RE: DEFENDANTS' MOTION FOR CLARIFICATION OF THE COURT'S JUNE 5, 2018. Signed by Magistrate Judge Jacqueline Scott Corley on 7/20/2018. (ahm, COURT STAFF) (Filed on 7/20/2018) (Entered: 07/20/2018)

43 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Kristi Butterfield, David W. Jennings, MaryBeth Keller, David O. Livingston, James McHenry, Kirstjen Nielsen, Jefferson B. Sessions, III. Appeal of Order on Motion to Certify Class, Order on Motion for Preliminary

Injunction 33 (Appeal fee: WAIVED) (Seamon, Matthew) (Filed on 8/3/2018)(USCA Case No. 18-16465) (Entered: 08/03/2018)

44 USCA Case Number 18-16465 for 43 Notice of Appeal filed by David O. Livingston, James McHenry, Kirstjen Nielsen, Kristi Butterfield, MaryBeth Keller, David W. Jennings, Jefferson B. Sessions, III. (slhS, COURT STAFF) (Filed on 8/7/2018) (Entered: 08/07/2018)

45 NOTICE by Esteban Aleman Gonzalez, Eduardo Gutierrez Sanchez Notice of Withdrawal of Counsel Julia Harumi Mass (Talla, Vasudha) (Filed on 9/10/2018) (Entered: 09/10/2018)

11/16/2018
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46 MOTION to Enforce Judgment filed by Esteban Aleman Gonzalez, Eduardo Gutierrez Sanchez. Motion Hearing set for 1/31/2019 09:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Jacqueline Scott Corley. Responses due by 12/14/2018. Replies due by 1/14/2019. (Attachments: # 1 Notice of Motion to Enforce, # 2 Declaration, # 3 Proposed Order)(Pennington, Alison) (Filed on 11/16/2018) (Entered: 11/16/2018)
47 OPPOSITION/RESPONSE (re 46 MOTION to Enforce Judgment ) filed by Kristi Butterfield, David W. Jennings, MaryBeth Keller, David O. Livingston, James McHenry, Kirstjen Nielsen, Jefferson B. Sessions, III. (Attachments: # 1 Exhibit A - Jacques Declaration)(Seamon, Matthew) (Filed on 12/14/2018) Modified on 12/17/2018 (amgS, COURT STAFF). (Entered: 12/14/2018)
48 ERRATA re 47 Opposition/Response to Motion, by Kristi Butterfield, David W. Jennings, MaryBeth Keller, David O. Livingston, James McHenry, Kirstjen Nielsen, Jefferson B. Sessions, III. (Attachments: # 1 Exhibit A - Amended Jacques Declaration)(Seamon, Matthew) (Filed on 12/18/2018) (Entered: 12/18/2018)
49 STIPULATION WITH PROPOSED ORDER re 47 Opposition/Response to Motion, 46 MOTION to Enforce Judgment filed by Esteban Aleman Gonzalez, Eduardo Gutierrez Sanchez. (VanDerHout, Marc) (Filed on 1/11/2019) (Entered: 01/11/2019)
50 ORDER by Magistrate Judge Jacqueline Scott Corley granting 49 Stipulation re: briefing schedule. (ahm, COURT STAFF) (Filed on 1/14/2019) (Entered: 01/14/2019)
Set/Reset Deadlines as to 46 MOTION to Enforce Judgment . Replies due by 1/17/2019. (ahm, COURT STAFF) (Filed on 1/14/2019) (Entered: 01/14/2019)
51 REPLY to Opposition (re 46 MOTION to Enforce Judgment ) filed by Esteban Aleman Gonzalez. (Attachments: # 1 Declaration)(Pennington, Alison) (Filed on 1/17/2019) (Entered: 01/17/2019)
52 MOTION to Stay Deadlines and Hearing Dates Pending Restoration of Appropriations filed by Kristi Butterfield, David W. Jennings, MaryBeth Keller, David O. Livingston, James McHenry, Kirstjen Nielsen, Jefferson B. Sessions, III. Motion Hearing set for 2/28/2019 09:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Jacqueline Scott Corley. Responses due by 2/1/2019. Replies due by 2/8/2019. (Attachments: # 1 Proposed Order)(Seamon, Matthew) (Filed on 1/18/2019) (Entered: 01/18/2019)

01/22/2019 01/23/2019 01/24/2019 01/25/2019

53 OPPOSITION/RESPONSE (re 52 MOTION to Stay Deadlines and Hearing Dates Pending Restoration of Appropriations ) filed byEsteban Aleman Gonzalez. (Pennington, Alison) (Filed on 1/22/2019) (Entered: 01/22/2019)
54 ORDER by Magistrate Judge Jacqueline Scott Corley denying 52 Motion to Stay Deadlines and Hearing Dates Pending Restoration of Appropriations. (ahm, COURT STAFF) (Filed on 1/23/2019) (Entered: 01/23/2019)
55 JOINT CASE MANAGEMENT STATEMENT filed by Esteban Aleman Gonzalez, Eduardo Gutierrez Sanchez. (Talla, Vasudha) (Filed on 1/24/2019) (Entered: 01/24/2019)
56 ORDER by Magistrate Judge Jacqueline Scott Corley denying 46 Motion to Enforce Judgment. (ahm, COURT STAFF) (Filed on 1/25/2019) (Entered: 01/25/2019)

01/28/2019 01/31/2019
02/12/2019 02/27/2019

Set/Reset Hearing: Further Case Management Conference set for 1/31/2019 at 09:00 AM in San Francisco, Courtroom F, 15th Floor. (ahm, COURT STAFF) (Filed on 1/28/2019) (Entered: 01/28/2019)
58 Minute Entry for proceedings held before Magistrate Judge Jacqueline Scott Corley: Further Case Management Conference held on 1/31/2019. (FTR Time: 9:04-9:34.)
Attorneys for Plaintiffs: Vasudha Talla; Marc VanDerHout; Alsion Penninton. Attorney for Defendants: Matthew Seamon.
(This is a text-only entry generated by the court. There is no document associated with this entry.)
(ahm, COURT STAFF) (Date Filed: 1/31/2019) Modified on 2/27/2019: Matter transcribed by Joan Columbini.(rjdS, COURT STAFF). (Entered: 02/27/2019)
57 Transcript Designation Form before Judge JSC, re 43 Notice of Appeal, Transcript due by 3/1/2019. (Alsterberg, Cara) (Filed on 2/12/2019) (Entered: 02/12/2019)
59 TRANSCRIPT ORDER for proceedings held on 01/31/2019 before Magistrate Judge Jacqueline Scott Corley by Esteban Aleman Gonzalez, Eduardo Gutierrez Sanchez, for Court Reporter FTR - San Francisco. (Talla, Vasudha) (Filed on 2/27/2019) (Entered: 02/27/2019)

02/27/2019 02/28/2019
03/06/2019 03/07/2019 03/13/2019 03/18/2019 03/19/2019

60 TRANSCRIPT ORDER before Magistrate Judge Jacqueline Scott Corley by Kristi Butterfield, David W. Jennings, MaryBeth Keller, David O. Livingston, James McHenry, Kirstjen Nielsen, for Court Reporter FTR - San Francisco. (Alsterberg, Cara) (Filed on 2/27/2019) (Entered: 02/27/2019)
61 Transcript of Proceedings held on January 31, 2019, before Judge Jacqueline Scott Corley. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, telephone number (510) 367-3043, joan.columbini.csr@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 59 Transcript Order, 60 Transcript Order, ) Redaction Request due 3/21/2019. Redacted Transcript Deadline set for 4/1/2019. Release of Transcript Restriction set for 5/29/2019. (Related documents(s) 59 , 60 ) (Columbini, Joan) (Filed on 2/28/2019) (Entered: 02/28/2019)
62 NOTICE by Esteban Aleman Gonzalez, Eduardo Gutierrez Sanchez of Plaintiffs' Submission of Proposed Order regarding Defendants Compliance Reports (Attachments: # 1 Proposed Order regarding Defendants Compliance Reports, # 2 Declaration of Judah Lakin, # 3 Exhibit A to Lakin Declaration, # 4 Exhibit B to Lakin Declaration, # 5 Exhibit C to Lakin Declaration, # 6 Exhibit D to Lakin Declaration)(Talla, Vasudha) (Filed on 3/6/2019) (Entered: 03/06/2019)
63 RESPONSE re 62 Notice (Other), by Kristi Butterfield, David W. Jennings, MaryBeth Keller, David O. Livingston, James McHenry, Kirstjen Nielsen, Jefferson B. Sessions, III. (Attachments: # 1 Proposed Order Proposed Order)(Alsterberg, Cara) (Filed on 3/7/2019) (Entered: 03/07/2019)
64 ORDER RE: DEFENDANTS' COMPLIANCE REPORTS. Signed by Magistrate Judge Jacqueline Scott Corley on 3/13/2019. (ahm, COURT STAFF) (Filed on 3/13/2019) (Entered: 03/13/2019)
65 MOTION for Extension of Time to File Declaration Regarding Class Identification filed by Kristi Butterfield, David W. Jennings, MaryBeth Keller, David O. Livingston, James McHenry, Kirstjen Nielsen, Jefferson B. Sessions, III. (Attachments: # 1 Declaration, # 2 Proposed Order)(Seamon, Matthew) (Filed on 3/18/2019) (Entered: 03/18/2019)
66 ORDER by Magistrate Judge Jacqueline Scott Corley granting 65 Motion for Extension of Time to File Declaration Regarding Class

04/10/2019
01/09/2020
01/10/2020
01/13/2020 01/14/2020 04/01/2020 04/07/2020 04/10/2020

Identification. Deadline is extended to April 10, 2019. (ahm, COURT STAFF) (Filed on 3/19/2019) (Entered: 03/19/2019)
67 STATUS REPORT and Filing of Declarations by Kristi Butterfield, David W. Jennings, MaryBeth Keller, David O. Livingston, James McHenry, Kirstjen Nielsen, Jefferson B. Sessions, III. (Attachments: # 1 Exhibit A - Jacques Declaration, # 2 Exhibit B - Muirhead Declaration, # 3 Exhibit C - Matuszewski Declaration, # 4 Exhibit D - Cantu Declaration, # 5 Exhibit E - Cantrell Declaration, # 6 Exhibit F - Cheng Declaration)(Seamon, Matthew) (Filed on 4/10/2019) (Entered: 04/10/2019)
68 STIPULATION WITH PROPOSED ORDER re 33 Order on Motion to Certify Class, Order on Motion for Preliminary Injunction (Modify Order to Appoint Additional Class Counsel) filed by Esteban Aleman Gonzalez, Eduardo Gutierrez Sanchez. (Wille, Amalia) (Filed on 1/9/2020) (Entered: 01/09/2020)
69 ORDER by Magistrate Judge Jacqueline Scott Corley granting 68 Stipulation TO MODIFY THE COURT'S ORDER RE PLAINTIFFS' MOTIONS FOR CLASS CERTIFICATION AND PRELIMINARY INJUNCTION, TO APPOINT ADDITIONAL CLASS COUNSEL. (ahm, COURT STAFF) (Filed on 1/10/2020) (Entered: 01/12/2020)
70 NOTICE of Appearance by Carolina Martin Ramos (Ramos, Carolina) (Filed on 1/13/2020) (Entered: 01/13/2020)
71 NOTICE of Appearance by John Nicholas Sinodis for Plaintiffs (Sinodis, John) (Filed on 1/14/2020) (Entered: 01/14/2020)
72 ORDER of USCA as to 43 Notice of Appeal, filed by David O. Livingston, James McHenry, Kirstjen Nielsen, Kristi Butterfield, MaryBeth Keller, David W. Jennings, Jefferson B. Sessions, III (msrS, COURT STAFF) (Filed on 4/1/2020) (Entered: 04/02/2020)
73 USCA Memorandum/Opinion as to 43 Notice of Appeal, filed by David O. Livingston, James McHenry, Kirstjen Nielsen, Kristi Butterfield, MaryBeth Keller, David W. Jennings, Jefferson B. Sessions, III (msrS, COURT STAFF) (Filed on 4/7/2020) (Entered: 04/07/2020)
74 Administrative Motion to File Under Seal filed by Esteban Aleman Gonzalez, Eduardo Gutierrez Sanchez. (Attachments: # 1 Declaration ISO Motion to File Under Seal, # 2 Proposed Order, # 3 Redacted Version of Motion to Enforce and Motion to Amend, # 4 Unredacted Version of Motion to Enforce and Motion to Amend, # 5 Declaration

04/10/2020
04/14/2020 04/22/2020 05/08/2020
05/08/2020

Declaration ISO Motion to Enforce and Motion to Amend, # 6 Notice of Motion to Enforce and Motion to Amend, # 7 Exhibit Redacted Version of A-H, # 8 Exhibit Unredacted Version of A-H, # 9 Exhibit Redacted Version of I-N, # 10 Exhibit Unredacted Version of I-N, # 11 Exhibit Redacted Version of O-S, # 12 Exhibit Unredacted Version of O-S, # 13 Exhibit Redacted Version of T-V, # 14 Exhibit Unredacted Version of TV)(Van Der Hout, Marc) (Filed on 4/10/2020) Modified on 4/13/2020 (mclS, COURT STAFF). (Entered: 04/10/2020)
75 Second MOTION Enforce and Amend filed by Esteban Aleman Gonzalez, Eduardo Gutierrez Sanchez. Motion Hearing set for 6/18/2020 09:00 AM in San Francisco, Courtroom E, 15th Floor before Magistrate Judge Jacqueline Scott Corley. Responses due by 5/8/2020. Replies due by 5/29/2020. (Attachments: # 1 Notice of Motion to Enforce and Motion to Amend, # 2 Declaration Declaration ISO Motion to Enforce and Motion to Amend, # 3 Exhibit Redacted Exhibits A-H, # 4 Exhibit Redacted Exhibits I-N, # 5 Exhibit Redacted Exhibit O-S, # 6 Exhibit Redacted Exhibit T-V)(Van Der Hout, Marc) (Filed on 4/10/2020) (Entered: 04/10/2020)
76 STIPULATION WITH PROPOSED ORDER re 75 Second MOTION Enforce and Amend (re Briefing Schedule) filed by Kristi Butterfield, David W. Jennings, MaryBeth Keller, David O. Livingston, James McHenry, Kirstjen Nielsen, Jefferson B. Sessions, III. (Seamon, Matthew) (Filed on 4/14/2020) (Entered: 04/14/2020)
77 ORDER by Magistrate Judge Jacqueline Scott Corley granting 76 Stipulation re Briefing Schedule.(ahm, COURT STAFF) (Filed on 4/22/2020) (Entered: 04/22/2020)
78 Administrative Motion to File Under Seal filed by Kristi Butterfield, David W. Jennings, MaryBeth Keller, David O. Livingston, James McHenry, Kirstjen Nielsen, Jefferson B. Sessions, III. (Attachments: # 1 Declaration ISO Motion to File Under Seal, # 2 Proposed Order, # 3 Redacted Version of Defendants' Response to Plaintiffs' Motion to Enforce and Amend, # 4 Unredacted Version of Defendants' Response to Plaintiffs' Motion to Enforce and Amend, # 5 Unredacted Version of Exhibit A, # 6 Redacted Version of Exhibit B, # 7 Unredacted Version of Exhibit B, # 8 Unredacted Version of Exhibit C)(Seamon, Matthew) (Filed on 5/8/2020) (Entered: 05/08/2020)
79 OPPOSITION/RESPONSE (re 75 Second MOTION Enforce and Amend ) filed byKristi Butterfield, David W. Jennings, MaryBeth Keller, David O. Livingston, James McHenry, Kirstjen Nielsen, Jefferson B. Sessions, III. (Attachments: # 1 Exhibit Redacted Exhibit A,

05/29/2020
05/29/2020 06/01/2020 06/15/2020

# 2 Exhibit Redacted Exhibit B, # 3 Exhibit Redacted Exhibit C)(Seamon, Matthew) (Filed on 5/8/2020) (Entered: 05/08/2020)
80 Second Administrative Motion to File Under Seal Unopposed by Defendants filed by Esteban Aleman Gonzalez, Eduardo Gutierrez Sanchez. (Attachments: # 1 Declaration Declaration ISO Admin Motion to File Under Seal, # 2 Proposed Order Proposed Order, # 3 Redacted Version of Reply ISO Motion to Enforce/Amend, # 4 Unredacted Version of Reply ISO of Motion to Enforce/Amend, # 5 Declaration Authenticating Declaration ISO of Reply, # 6 Exhibit Redacted Version of Exhibit A, # 7 Exhibit Unredacted Version of Exhibit A, # 8 Exhibit Redacted Version of Exhibit B, # 9 Exhibit Unredacted Version of Exhibit B, # 10 Exhibit Redacted Version of Exhibit C, # 11 Exhibit Unredacted Version of Exhibit C)(Van Der Hout, Marc) (Filed on 5/29/2020) (Entered: 05/29/2020)
81 REPLY (re 75 Second MOTION Enforce and Amend ) filed byEsteban Aleman Gonzalez, Eduardo Gutierrez Sanchez. (Attachments: # 1 Declaration Authenticating Declaration of Alison Pennington, # 2 Exhibit Redacted Version of Exhibit A, # 3 Exhibit Redacted Version of Exhibit B, # 4 Exhibit Redacted Version of Exhibit C)(Van Der Hout, Marc) (Filed on 5/29/2020) (Entered: 05/29/2020)
82 MANDATE of USCA as to 43 Notice of Appeal, filed by David O. Livingston, James McHenry, Kirstjen Nielsen, Kristi Butterfield, MaryBeth Keller, David W. Jennings, Jefferson B. Sessions, III "The judgment of this Court, entered April 07, 2020, takes effect this date.This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure." (msrS, COURT STAFF) (Filed on 6/1/2020) (Entered: 06/01/2020)
83 CLERK'S NOTICE REGARDING JUNE 18, 2020 MOTION HEARING.
For Zoom connection, see: https://apps.cand.uscourts.gov/telhrg/

The hearing on Plaintiffs' Motion to Enforce ( 75 video conferencing webinar.

) will be a Zoom

PLEASE NOTE: Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including

06/18/2020

screenshots or other visual copying of a hearing, is absolutely prohibited. See General Order 58 at Paragraph III.
Case participants may also receive an email invitation from the court with different information which should be followed.
All counsel, members of the public and press please click the link or use the information below to join the webinar:
https://canduscourts.zoomgov.com/j/1605872885?pwd=KzJ6UEc1UFhMekFEWEJ XRDVyYnpldz09
Meeting ID: 160 587 2885 Password: 448660
Dial by your location +1 929 205 6099 US (New York) +1 253 215 8782 US +1 301 715 8592 US +1 312 626 6799 US (Chicago) +1 346 248 7799 US (Houston) +1 669 900 6833 US (San Jose) Find your local number: https://zoom.us/u/ac4JkPfcjo
For important information and guidance on technical preparation, please see https://www.cand.uscourts.gov/zoom/.
(This is a text-only entry generated by the court. There is no document associated with this entry.)
(a hm, COURT STAFF) (Filed on 6/15/2020) (Entered: 06/15/2020)
84 Minute Entry for proceedings held before Magistrate Judge Jacqueline Scott Corley: Motion Hearing held via Zoom Webinar on
6/18/2020 re 75 Second Motion Enforce and Amend filed by Eduardo Gutierrez Sanchez, Esteban Aleman Gonzalez. The motion was argued, submitted, and taken under submission. (Court Reporter: Katherine Sullivan) (Time 00:52)
Attorneys for Plaintiffs: Marc VanDerHout and Alison Pennington. Attorney for Defendants: Matthew Seamon.

06/19/2020 06/25/2020 06/26/2020 07/08/2020
09/11/2020 12/11/2020

(This is a text-only entry generated by the court. There is no document associated with this entry.)
(ahm, COURT STAFF) (Date Filed: 6/18/2020) (Entered: 06/18/2020)
85 ORDER by Magistrate Judge Jacqueline Scott Corley granting in
part and denying in part 75 Plaintiffs' Motion to Enforce the March 2019 Order and Amend the June 2018 Order. (ahm, COURT STAFF) (Filed on 6/19/2020) (Entered: 06/19/2020)
86 TRANSCRIPT ORDER for proceedings held on 06/18/2020 before Magistrate Judge Jacqueline Scott Corley by Esteban Aleman Gonzalez, Eduardo Gutierrez Sanchez, for Court Reporter Katherine Sullivan. (Talla, Vasudha) (Filed on 6/25/2020) (Entered: 06/25/2020)
87 TRANSCRIPT ORDER for proceedings held on 6/18/20 before Magistrate Judge Jacqueline Scott Corley by Kristi Butterfield, David W. Jennings, MaryBeth Keller, David O. Livingston, James McHenry, Kirstjen Nielsen, Jefferson B. Sessions, III, for Court Reporter Katherine Sullivan. (Alsterberg, Cara) (Filed on 6/26/2020) (Entered: 06/26/2020)
88 Transcript of Proceedings held on 6/18/2020, before Judge Jacqueline Scott Corley. Court Reporter Katherine Powell Sullivan, Katherine_Sullivan@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 10/6/2020. (Sullivan, Katherine) (Filed on 7/8/2020) (Entered: 07/08/2020)
89 US Supreme Court Case Number 20-322. The petition for a writ of certiorari was filed 9/4/2020 and placed on the docket 9/11/2020, as No. 20-322 for 43 Notice of Appeal, filed by David O. Livingston, James McHenry, Kirstjen Nielsen, Kristi Butterfield, MaryBeth Keller, David W. Jennings, Jefferson B. Sessions, III. (msrS, COURT STAFF) (Filed on 9/11/2020) (Entered: 09/17/2020)
90 NOTICE of Change In Counsel by Jesse Mica Newmark (Newmark, Jesse) (Filed on 12/11/2020) (Entered: 12/11/2020)

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3:18-cv01869-JSC
1.70

 
 Case 3:18-cv-01869 Document 1 Filed 03/27/18 Page 1 of 17

Marc Van Der Hout, CA SBN 80778 1 Judah Lakin, CA SBN 307740

Alison Pennington, CA SBN 231861 Lisa Knox, CA SBN 279406

Amalia Wille, CA SBN 293342

Julia Rabinovich, CA SBN 290730

2 Van Der Hout, Brigagliano & Nightingale LLP Jesse Newmark, CA SBN 247488

180 Sutter Street, Suite 500 3 San Francisco, CA 94104

Centro Legal de la Raza 3400 E. 12th Street

Tel: (415) 981-3000 4 Fax: (415) 981-3003

Oakland, CA 94601 Tel: (510) 679-1608

ndca@vblaw.com 5

Fax: (510) 427-9164 apennington@centrolegal.org

6 Attorneys for Plaintiffs-Petitioners and the Proposed Class
7 (Additional Counsel listed on following page)

8

9 UNITED STATES DISTRICT COURT

10

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11 Esteban ALEMAN GONZALEZ; Jose Eduardo GUTIERREZ SANCHEZ,
12

Case No. ____________________

Plaintiffs-Petitioners, 13

COMPLAINT FOR DECLARATORY AND

v. 14

INJUNCTIVE RELIEF AND PETITION FOR WRIT OF HABEAS CORPUS

Jefferson B. SESSIONS, Attorney General, 15 Department of Justice; Kirstjen NIELSEN,

Secretary, Department of Homeland Security; CLASS ACTION 16 James McHENRY, Director, Executive Office

for Immigration Review, Department of 17 Justice; MaryBeth KELLER, Chief

Immigration Judge, Executive Office for 18 Immigration Review, Department of Justice;

David W. JENNINGS, Field Office Director 19 for the San Francisco Field Office of U.S.

Immigration and Customs Enforcement, 20 Department of Homeland Security; David O.

LIVINGSTON, Sheriff, Contra Costa County; 21 Kristi BUTTERFIELD, Facility Commander,

West County Detention Facility, Contra Costa 22 County,

23 Defendants.

24

25

26

27

28

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF HABEAS CORPUS

Case 3:18-cv-01869 Document 1 Filed 03/27/18 Page 2 of 17
Matthew H. Green, AZ SBN 020827* 1 Law Offices of Matthew H. Green
130 West Cushing Street 2 Tucson, AZ 85701
Tel: (520) 882-8852 3 Fax: (520) 882-8843
matt@arizonaimmigration.net 4
Vasudha Talla, CA SBN 316219 5 Julia Mass, CA SBN 189649
American Civil Liberties Union 6 Foundation of Northern California
39 Drumm Street 7 San Francisco, CA 94111
Tel: (415) 621-2493 8 Fax: (415) 255-8437
jmass@aclunc.org 9 vtalla@aclunc.org
10 Michael Kaufman, CA SBN 254575 American Civil Liberties Union
11 Foundation of Southern California 1313 West 8th Street
12 Los Angeles, CA 90017 Tel: (213) 977-5232
13 Fax: (213) 977-5297 mkaufman@aclusocal.org
14 Bardis Vakili, CA SBN 247783
15 American Civil Liberties Union Foundation of San Diego and Imperial Counties
16 P.O. Box 87131 San Diego, CA 92138-7131
17 Tel: (619) 232-2121 Fax: (619) 232-0036
18 bvakili@aclusandiego.org
19 Attorneys for Plaintiffs-Petitioners and the Proposed Class
20 * seeking pro hac vice admission
21
22
23
24
25
26
27
28
CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF HABEAS CORPUS

Case 3:18-cv-01869 Document 1 Filed 03/27/18 Page 3 of 17

1

INTRODUCTION

2

1. Plaintiffs-Petitioners Esteban Aleman Gonzalez, Jose Eduardo Gutierrez Sanchez,

3 and the class they seek to represent (collectively, “Plaintiffs”) are subjected to unlawful and

4 prolonged detention by Defendants (the “Government”) without being afforded the most basic of

5 procedural protections—a bond hearing—regardless of the length of their detention.

6

2. Plaintiffs are noncitizens whom the Government has detained pursuant to 8

7 U.S.C. § 1231(a)(6) pending a determination as to whether they can remain in the United States.

8 Most were previously removed from the United States and have since returned because they

9 feared persecution and torture in their home country. In the vast majority of cases, Defendants

10 have made a threshold determination that each Plaintiff meets the requirements for protection

11 under the asylum laws, and referred Plaintiffs for what are called “withholding-only”

12 proceedings before the Immigration Courts on their claims for protection. In the remaining cases,

13 Plaintiffs are awaiting the threshold determination, or a reviewing court of appeals has issued a

14 stay of removal, indicating that Plaintiffs are likely to succeed on the merits of their claims

15 against removal from the United States. In all instances, the Department of Homeland Security

16 (“DHS”) does not have the present authority to remove Plaintiffs from the United States as they

17 have live claims before either an administrative or judicial adjudicative body.

18

3. Plaintiffs have been detained at least six months while they proceed with the

19 adjudication of their immigration claims. All Plaintiffs have been detained without being given a

20 bond hearing, where an Immigration Judge determines whether they pose a flight risk or a danger

21 to the community.

22

4. Despite clear Ninth Circuit precedent establishing the right to a bond hearing for

23 Plaintiffs upon their detention becoming prolonged, Defendants refuse to afford Plaintiffs the

24 bond hearings to which they are entitled based on a blatantly incorrect interpretation of federal

25 law.

26

5. Plaintiffs Aleman Gonzalez and Gutierrez Sanchez, along with the proposed class

27 members, request that this Court provide relief for Plaintiffs facing prolonged detention.

28

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF HABEAS CORPUS 1

Case 3:18-cv-01869 Document 1 Filed 03/27/18 Page 4 of 17

1 Specifically Plaintiffs seek: (i) a declaration that Plaintiffs are entitled to a prolonged detention

2 bond hearing after 180 days in detention; and (ii) an injunction prohibiting Defendants from

3 detaining Plaintiffs for more than 180 days without affording them an opportunity for a bond

4 hearing before an Immigration Judge at which Defendants bear the burden of justifying the

5 continued detention with clear and convincing evidence.

6

JURISDICTION

7

6. This action arises under the Constitution of the United States, the Immigration

8 and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., and the Administrative Procedure Act

9 (“APA”), 5 U.S.C. § 500 et seq.

10

7. Jurisdiction is proper under 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 2241

11 (habeas corpus), 28 U.S.C. § 1651 (All Writs Act), 5 U.S.C. § 701 et seq. (APA), 28 U.S.C.

12 § 1361 (mandamus), 28 U.S.C. §§ 2201-2202 (Declaratory Judgment Act), and the Suspension

13 Clause of Article I of the U.S. Constitution. The United States has waived its sovereign

14 immunity pursuant to 5 U.S.C. § 702.

15

8. This Court may grant declaratory and injunctive relief pursuant to 28 U.S.C.

16 § 2241, 5 U.S.C. § 702, 28 U.S.C. § 1651, and 28 U.S.C. §§ 2201-02.

17

VENUE

18

9. Venue is proper in this District under 28 U.S.C. § 1391(e) because at least one

19 federal Defendant is in this District, Plaintiffs Aleman Gonzalez and Gutierrez Sanchez are

20 detained in this District, and a substantial part of the events or omissions giving rise to the claims

21 in this action took place in this District. In addition, no real property is involved in this action.

22

10. Intradistrict Assignment: As required by Local Rule 3-5(b), this case may be

23 assigned to the San Francisco Division because this case is not one of the enumerated types of

24 cases in Civil Local Rule 3-2(c), and because a substantial part of events and omissions occurred

25 in San Francisco. See Civil L.R. 3-2(c), (d).

26

PARTIES

27

11. Plaintiff Esteban ALEMAN GONZALEZ is a native and citizen of Mexico. He

28 entered the United States for the first time in 2000, was summarily removed, and shortly

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF HABEAS CORPUS 2

Case 3:18-cv-01869 Document 1 Filed 03/27/18 Page 5 of 17

1 thereafter reentered that same year. He has lived in the United States since that time and is

2 currently in “withholding-only” proceedings. He has been detained for over 200 days in

3 Richmond, California, at the Contra Costa West County Detention Facility.

4

12. Plaintiff Jose Eduardo GUTIERREZ SANCHEZ is a native and citizen of

5 Mexico. He entered the United States for the first time in 2009 and was summarily removed in

6 2009. He last re-entered the United States in 2015. Since that time, he has lived in the United

7 States with his U.S. citizen wife and two young U.S. citizen children. He is currently in

8 “withholding-only” proceedings. He has been detained for over 180 days in Richmond,

9 California, at the Contra Costa West County Detention Facility.

10

13. Defendant Jefferson B. SESSIONS is sued in his official capacity as Attorney

11 General of the United States and head of the Department of Justice (“DOJ”). In this capacity, he

12 is responsible for the administration of the immigration laws pursuant to 8 U.S.C. § 1103 and

13 oversees the Executive Office for Immigration Review (“EOIR”), a component of the DOJ,

14 which includes the immigration courts and the Board of Immigration Appeals (“BIA” or

15 “Board”). He is empowered to oversee the adjudication of removal and bond hearings and by

16 regulation has delegated that power to the nation’s Immigration Judges and the BIA.

17

14. Defendant Kirstjen NIELSEN is sued in her official capacity as the Secretary of

18 the DHS. She is the executive officer who has been given authority to manage and control U.S.

19 Immigration and Customs Enforcement (“ICE”). As such, she is the ultimate legal custodian of

20 Plaintiffs Aleman Gonzalez and Gutierrez Sanchez.

21

15. Defendant James McHENRY is sued in his official capacity as Director of EOIR.

22 In his capacity he is responsible for overseeing EOIR’s principal mission “to adjudicate

23 immigration cases by fairly, expeditiously, and uniformly interpreting and administering the

24 nation’s immigration laws.” See Executive Office for Immigration Review, http://www.justice.

25 gov/eoir (last visited 03/21/2018). In addition, he has the responsibility for the supervision of all

26 personnel employed by the EOIR in carrying out their regulatory duties. See Office of the

27 Director, https://www.justice.gov/eoir/office-of-the-director (last visited 3/21/2018).

28

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF HABEAS CORPUS 3

Case 3:18-cv-01869 Document 1 Filed 03/27/18 Page 6 of 17

1

16. Defendant Mary Beth KELLER is sued in her official capacity as the Chief

2 Immigration Judge within EOIR. In this capacity, she has authority to “establish[] operating

3 policies and oversee[] policy implementation for the immigration courts.” See Office of the Chief

4 Immigration Judge, https://www.justice.gov/eoir/office-of-the-chief-immigration-judge-bios (last

5 visited 3/21/2018).

6

17. Defendant David W. JENNINGS is sued in his official capacity as the Field

7 Office Director for the San Francisco Field Office of ICE, a component of DHS, with

8 responsibility over persons in immigration custody in the Contra Costa West County Detention

9 Facility. Director Jennings has custody of Plaintiffs Aleman Gonzalez and Gutierrez Sanchez.

10

18. Defendant David O. LIVINGSTON is sued in his official capacity as the Sheriff

11 of Contra Costa County, California, with responsibility over the Contra Costa West County

12 Detention Facility. Defendant Livingston has custody of Plaintiffs Aleman Gonzalez and

13 Gutierrez Sanchez.

14

19. Defendant Kristi BUTTERFIELD is sued in her official capacity as the Facility

15 Captain of the West County Detention Facility, with responsibility for the day to day operations

16 of the Contra Costa West County Detention Facility. Defendant Butterfield has custody of

17 Plaintiffs Aleman Gonzalez and Gutierrez Sanchez.

18

LEGAL BACKGROUND

19

20. Section 1231 of 8 U.S.C. authorizes the detention of noncitizens who have been

20 issued a final order of removal. While noncitizens with a final order of removal detained under

21 Section 1231 are typically subject to immediate deportation, some noncitizens detained under

22 Section 1231 have active cases challenging their removal.

23

21. The most common category of people detained under Section 1231 are

24 individuals with reinstated removal orders. Under 8 U.S.C. § 1231(a)(5), the government is

25 authorized to reinstate an individual’s prior removal order where the individual has previously

26 been removed from the United States and has re-entered the United States unlawfully. An

27 individual with a reinstated order can be summarily removed from the United States without an

28 opportunity to appear before an Immigration Judge.

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1

22. If, however, an individual expresses a fear of returning to their country of

2 removal, the reinstated removal order is not executed per the regulatory scheme set forth in 8

3 C.F.R. § 208.31. Rather, upon expressing a fear, the individual “shall be immediately referred to

4 an asylum officer for an interview to determine whether the [individual] has a reasonable fear of

5 persecution or torture pursuant to [8 C.F.R.] § 208.31.” 8 C.F.R. § 241.8.

6

23. A DHS asylum officer, absent exceptional circumstances, must make a

7 determination as to whether the individual has a reasonable fear within ten days. 8 C.F.R.

8 § 208.31. The asylum officer conducts an interview with the individual, in a non-adversarial

9 manner, to determine whether the individual has a reasonable fear of persecution or torture. Id.

10 Individuals have a right to both representation and interpretation in these interviews. Id.

11

24. If the individual is determined to have a “reasonable fear” of persecution, the

12 individual is placed in “withholding-only” proceedings before an Immigration Judge, through

13 which the individual can apply for withholding of removal and protection under the Convention

14 Against Torture (“CAT”). See 8 C.F.R. § 208.31; 8 C.F.R. § 208.16.

15

25. Withholding of removal prohibits an individual’s removal to a country where

16 their “life or freedom would be threatened . . . because of [their] race, religion, nationality,

17 membership in a particular social group or political opinion.” 8 U.S.C. § 1231(b)(3)(A). CAT

18 protection is afforded to those who establish that “it is more likely than not that he or she would

19 be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). Both forms

20 of protection ensure compliance with the United States’ statutory and treaty-based obligations

21 not to remove individuals to countries where they would face persecution or torture. See

22 generally Foreign Affairs Reform and Restructuring Act of 1998, § 2242, Pub. L. 105-277, 112

23 Stat. 2681, 2681-821.

24

26. “Withholding-only” proceedings operate just like removal proceedings under 8

25 U.S.C. § 1229a, INA § 240. As a result, the individual is entitled to the full panoply of

26 regulatory, statutory, and constitutional rights, including an appeal to the Board and a petition for

27 review before the circuit court of appeals. See 8 C.F.R. § 1208.31; 8 U.S.C. § 1252(a)(1). The

28 only meaningful difference between “withholding-only” proceedings conducted pursuant to 8

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1 C.F.R. § 208.16, and removal proceedings conducted pursuant to 8 C.F.R. § 1240, is that in

2 “withholding-only” proceedings, the Immigration Court is limited to adjudicating claims for

3 withholding of removal and protection under the CAT.

4

27. In the event that an asylum officer determines that an individual does not have a

5 reasonable fear of persecution or torture, the individual is entitled to review of that decision

6 before an Immigration Judge. See 8 C.F.R. § 208.31. If the Immigration Judge concurs with the

7 asylum officer’s determination that the individual does not have a reasonable fear of persecution

8 or torture, the individual is not permitted to appeal that decision to the Board; however, the

9 individual can file a petition for review with the circuit court of appeals. See 8 U.S.C.

10 § 1252(a)(1); Andrade-Garcia v. Lynch, 828 F.3d 829, 831 (9th Cir. 2016).

11

28. Individuals, via a petition for review to a federal court of appeals, can also

12 challenge the reinstated removal order itself, by either challenging the “factual predicates for

13 reinstatement” or raising “constitutional claims or questions of law.” See Villa-Anguiano v.

14 Holder, 727 F.3d 873, 877-78 (9th Cir. 2013) (internal quotation marks and citations omitted).

15

29. Under current Ninth Circuit law, all individuals with reinstated removal orders—

16 whether they are challenging their reinstated removal order, are in “withholding-only”

17 proceedings, or are seeking agency or judicial review of a decision by an Immigration Judge—

18 are detained pursuant to 8 U.S.C. § 1231(a)(6). See Padilla-Ramirez v. Bible, 862 F.3d 881 (9th

19 Cir. 2017), amended and superseded, 882 F.3d 826, 830-32 (9th Cir. 2018).

20

30. Although the vast majority of Plaintiffs have reinstated removal orders, the

21 proposed class also consists of individuals detained under § 1231(a)(6) who have been issued

22 administratively final removal orders pursuant to 8 U.S.C. § 1228(b), as well as individuals who

23 are awaiting judicial review of the BIA’s denial of a motion to reopen removal proceedings, see

24 8 U.S.C. § 1229a(c)(7), and who have been issued a judicial stay of removal. See Padilla-

25 Ramirez, 882 F.3d at 830-32; Diouf v. Mukasey, 542 F.3d 1222, 1230 (9th Cir. 2008) (Diouf I).

26

31. Ninth Circuit law establishes the right to a bond hearing for those subject to

27 prolonged detention under 8 U.S.C. § 1231(a)(6). In Diouf v. Napolitano, 634 F.3d 1081, 1084

28 (9th Cir. 2011) (Diouf II), the Ninth Circuit, noting the serious Constitutional concerns that arise

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1 from prolonged civil detention without procedural protections, applied the canon of

2 constitutional avoidance and “construe[d] § 1231(a)(6) as requiring an individualized bond

3 hearing, before an immigration judge, for [individuals] facing prolonged detention under that

4 provision.” Id. at 1086. Prolonged detention has been defined as detention beyond six months.

5 See Casas-Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942, 950 (9th Cir. 2008); see also

6 Diouf II, 634 F.3d at 1091.

7

32. The Supreme Court’s recent decision in Jennings v. Rodriguez, 138 S. Ct. 830,

8 842-44 (2018), strongly supports Diouf II. Jennings held that two other immigration detention

9 statutes, Sections 1225 and 1236(c) of 8 U.S.C., could not be read to authorize a bond hearing.

10 By contrast, the Court observed that because § 1231(a)(6) states that certain individuals “may be

11 detained,” there is not “necessarily unlimited discretion” in detaining individuals. See id. at 843

12 (quoting Zadvydas v. Davis, 533 U.S. 678, 697 (2001) (applying canon of constitutional

13 avoidance to construe Section 1231(a)(6) not to authorize detention beyond six months where

14 removal is not reasonably foreseeable)).

15

33. The Ninth Circuit has additionally held that, at prolonged detention hearings, the

16 government bears the burden of proving that the detained individual is either a flight risk or a

17 danger to the community by “clear and convincing evidence.” See Singh v. Holder, 638 F.3d

18 1196 (9th Cir. 2011).

19

34. Taken together, Diouf II, Padilla-Ramirez, and Singh require that all individuals

20 in the Ninth Circuit whose removal orders have been reinstated, or who have administratively

21 final removal orders pursuant to 8 U.S.C. § 1228(b), or who are awaiting judicial review of the

22 BIA’s denial of a motion to reopen removal proceedings with a judicial stay in place, be

23 provided a bond hearing after six months of detention where the government bears the burden of

24 proving by clear and convincing evidence that the individual is a flight risk or a danger to the

25 community.

26

FACTUAL ALLEGATIONS

27

28

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1

35. Plaintiff Esteban Aleman Gonzalez is a native and citizen of Mexico. He entered

2 the United States on April 14, 2000, and was expeditiously removed that same day. He re-

3 entered the United States shortly thereafter, and has resided in the United States since 2000.

4

36. On August 18, 2017, Mr. Aleman Gonzalez was arrested at his home in Antioch,

5 California. He shares custody of his two U.S. citizen daughters, ages five and three, and is their

6 primary source of financial support. He has no criminal convictions. He has been detained by

7 DHS at the Contra Costa West County Detention Facility since the date of his arrest.

8

37. DHS issued a notice reinstating his prior order of removal under 8 U.S.C.

9 § 1231(a)(5). Mr. Aleman Gonzalez, however, expressed his fear of returning to Mexico and the

10 execution of the reinstated order was suspended per the regulatory scheme set forth at 8 C.F.R.

11 § 1208.31.

12

38. On August 30, 2017, a DHS asylum officer found Mr. Aleman Gonzalez to have a

13 reasonable fear of persecution or torture in Mexico by members of the Zeta drug cartel. Pursuant

14 to 8 C.F.R. §§ 208.31 and 208.16, his case was referred to the San Francisco Immigration Court

15 for “withholding-only” proceedings.

16

39. Mr. Aleman Gonzalez applied for withholding of removal and relief under the

17 CAT by filing U.S. Citizenship and Immigration Services (“USCIS”) Application Form I-589

18 with the San Francisco Immigration Court on November 13, 2017. He is currently scheduled for

19 an individual hearing on his withholding of removal and CAT application on June 13, 2018.

20

40. On February 18, 2018, after 187 days in detention, Mr. Aleman Gonzalez

21 requested a bond hearing before an Immigration Judge in San Francisco. On February 27, 2018

22 Immigration Judge Joseph Park of the San Francisco Immigration Court ruled that he did not

23 have jurisdiction to conduct a hearing and therefore refused to do so.

24

41. On March 15, 2018, Mr. Aleman Gonzalez appealed that decision to the BIA

25 where it remains pending.

26

42. Mr. Aleman Gonzalez remains in custody at the West County Detention Facility,

27 and has been detained for well over 200 days as of the time of filing of this Complaint.

28

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1

43. Plaintiff Jose Eduardo Gutierrez Sanchez is a native and citizen of Mexico. He

2 first entered the United States on May 19, 2009, and was expeditiously removed on June 9, 2009.

3 Mr. Gutierrez Sanchez again tried to enter the United States after he was attacked and beaten in

4 Mexico, but was again removed. He re-entered the United States in approximately November

5 2015, and has resided here since then.

6

44. Mr. Gutierrez Sanchez was detained by DHS on or about September 25, 2017.

7 Prior to his detention, he resided in San Lorenzo, California with his U.S citizen wife and two

8 young U.S. citizen daughters. Mr. Gutierrez Sanchez was the sole source of financial support for

9 their household.

10

45. DHS issued a notice reinstating his prior order of removal under 8 U.S.C.

11 § 1231(a)(5). Mr. Gutierrez Sanchez was given a reasonable fear interview with a DHS asylum

12 officer because he expressed fear of being harmed in Mexico.

13

46. At his reasonable fear interview, Mr. Gutierrez Sanchez expressed fear that, if

14 returned to Mexico, he would be harmed as a bisexual man. Mr. Gutierrez Sanchez already

15 experienced past torture in Mexico by organized crime on account of his sexual orientation. A

16 DHS asylum officer found that he had a reasonable fear or persecution or torture in Mexico, and

17 he was placed in “withholding-only” proceedings before the San Francisco Immigration Court.

18 See 8 C.F.R. §§ 208.31 and 208.16.

19

47. Mr. Gutierrez Sanchez subsequently applied for withholding of removal and relief

20 under the CAT by filing USCIS Form I-589 with the San Francisco Immigration Court on

21 February 20, 2018. Mr. Gutierrez Sanchez is currently scheduled for an individual hearing on his

22 withholding of removal and CAT application on April 19, 2018.

23

48. On March 5, 2018, Mr. Gutierrez Sanchez filed a request with the San Francisco

24 Immigration Court that a bond hearing be held on or after March 24, 2018, his 180th day of

25 detention. On March 21, 2018, Immigration Judge Alison E. Daw of the San Francisco

26 Immigration Court ruled that she did not have jurisdiction to conduct a hearing and therefore

27 refused to do so.

28

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1

49. On March 26, 2018 Mr. Gutierrez Sanchez appealed that decision to the BIA,

2 where the appeal remains pending.

3

50. Mr. Gutierrez Sanchez remains in custody at the West County Detention Facility,

4 and has been detained for 183 days as of the time of filing of this Complaint.

5

51. In addition to Mr. Aleman Gonzalez and Mr. Gutierrez Sanchez, on information

6 and belief, there are at least sixty other individuals within the jurisdiction of the Ninth Circuit

7 detained pursuant to 8 U.S.C. § 1231(a)(6) with cases pending before the Immigration Court, the

8 Board, or the Ninth Circuit who have been denied prolonged detention bond hearings by an

9 Immigration Judge due to a purported lack of jurisdiction. These individuals remain detained in

10 direct contravention of Ninth Circuit precedent.

11

52. On information and belief, there have been at least twenty District Court decisions

12 in the Ninth Circuit overturning Immigration Judge decisions denying individuals the right to a

13 prolonged detention bond hearing due to a purported lack of jurisdiction, yet Immigration Judges

14 continue to deny requests for such hearings. See, e.g., Ramos v. Sessions, No. 18-CV-00413-JST,

15 2018 WL 905922, at *3 (N.D. Cal. Feb. 15, 2018); Villalta v. Sessions, No. 17-CV-05390-LHK,

16 2017 WL 4355182, at *5-*7 (N.D. Cal. Oct. 2, 2017); Ramon-Matul v. Sessions, No. CV-17-

17 02865-PHX-DGC, 2017 WL 6884314, at *3 (D. Ariz. Sept. 22, 2017).

18

CLASS ACTION ALLEGATIONS

19

53. Plaintiffs bring this action pursuant to Federal Rules of Civil Procedure 23(a) and

20 23(b)(2) on behalf of themselves and all other persons similarly situated. The proposed class is

21 defined as follows:

22

All individuals who are detained pursuant to 8 U.S.C. § 1231(a)(6) in the Ninth

23

Circuit by, or pursuant to the authority of, the Department of Homeland Security’s Immigration and Customs Enforcement, and who have reached or will reach six

24

months in detention, and have been or will be denied a prolonged detention bond hearing before an Immigration Judge.1

25

26 1 To the extent that the district courts in the Central District of California or the Western District

27

of Washington have already enjoined, or will enjoin, Defendants from denying Plaintiffs a prolonged detention bond hearing, those individuals are excluded from the class at issue here.

28 See Rodriguez v. Holder, No. CV 07-3239 TJH RNBX, 2013 WL 5229795, at *1 (C.D. Cal.

Aug. 6, 2013); Martinez Banos v. Asher, No. 2:16-CV-01454 , Dkt. #77, Magistrate Judge’s

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1

54. The proposed class meets the requirements of Rule 23(a)(1) because it is so

2 numerous that the joinder of all members is impracticable. The number of individuals who are

3 being denied prolonged detention bond hearings through the Ninth Circuit is not known with

4 precision but, on information and belief, there are at least sixty known class members.

5

55. Moreover, because Plaintiffs are detained pending a decision on their case, they

6 may either win their cases and be released, or lose their cases and be deported. The inherently

7 transitory state of the proposed class further demonstrates that joinder is impracticable.

8

56. The proposed class meets the commonality requirements of Rule 23(a)(2) because

9 all proposed class members have been or will be subject to the same common practice:

10 Defendants’ refusal to provide a bond hearing at 180 days of detention to individuals detained

11 pursuant to § 1231(a)(6).

12

57. Similarly, the proposed class meets the typicality requirements of Rule 23(a)(3)

13 because the claims of the representative Plaintiffs are typical of the claims of the class as a

14 whole. Plaintiffs Aleman Gonzalez and Gutierrez Sanchez, and the class they seek to represent,

15 are all individuals detained pursuant to § 1231(a)(6) who have been or will be denied a six-

16 month bond hearing.

17

58. The adequacy requirements of Rule 23(a)(4) also are met. Plaintiffs know of no

18 conflict between their interests and those of the proposed class. Plaintiffs seek the same relief as

19 the other members of the class, namely a bond hearing after six months of detention in which the

20 Government bears the burden to prove by clear and convincing evidence sufficient risk of flight

21 or dangerousness to warrant continued prolonged detention. In defending their own rights,

22 Plaintiffs Aleman Gonzalez and Gutierrez Sanchez will defend the rights of all class members

23 fairly and adequately.

24

59. Plaintiffs are represented by counsel with deep knowledge of immigration law,

25 and extensive experience litigating class actions and complex cases. Counsel have the requisite

26 level of expertise to adequately prosecute this case on behalf of Plaintiffs and the proposed class.

27

28 Report and Recommendation Granting Summary Judgment as to the 1231(a)(6) Class Members (W.D. Wash. Jan. 23, 2018).

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1

60. Finally, the proposed class satisfies Rule 23(b)(2) because Defendants have acted

2 on grounds generally applicable to the class in refusing to conduct six-month bond hearings.

3 Thus, final injunctive and declaratory relief is appropriate with respect to the class as a whole.

4

CAUSES OF ACTION

5

COUNT ONE

6

(Violation of the Immigration and Nationality Act)

7

61. All the foregoing allegations are repeated and realleged as though fully set forth

8 herein.

9

62. Section 1231(a)(6) of 8 U.S.C. entitles Plaintiffs and proposed class members to

10 bond hearings after six months of detention.

11

63. Plaintiffs Aleman Gonzalez’s and Gutierrez Sanchez’s and proposed class

12 members’ detention under Section 1231(a)(6), in the absence of such bond hearings, violates the

13 INA.

14

COUNT TWO

15

(Violation of the Administrative Procedure Act)

16

64. All the foregoing allegations are repeated and realleged as though fully set forth

17 herein.

18

65. Section 706 of 5 U.S.C. provides that a reviewing court shall compel agency

19 action unlawfully withheld and hold unlawful and set aside agency action not in accordance with

20 law. 5 U.S.C. § 706(1)-(2).

21

66. Plaintiffs Aleman Gonzalez and Gutierrez Sanchez and proposed class members

22 have a statutory and due process right to have an Immigration Judge conduct a bond hearing after

23 six months in detention. 8 U.S.C. § 1231(a)(6); U.S. Const. amend. V; Diouf II, 634 F.3d at

24 1086.

25

67. Defendants’ refusal to provide a bond hearing to Plaintiffs Aleman Gonzalez and

26 Gutierrez Sanchez and proposed class members harms them and constitutes final agency action

27 for purposes of the APA.

28

68. There are no other adequate available remedies.

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1

69. Defendants’ actions constitute an unlawful withholding of an agency action and

2 unlawful agency action in violation of the APA.

3

COUNT THREE

4

(Violation of the Due Process Clause)

5

70. All the foregoing allegations are repeated and realleged as though fully set forth

6 herein.

7

71. The Due Process Clause of the Fifth Amendment to the United States Constitution

8 requires an adequate hearing before a neutral decision maker to determine whether prolonged

9 immigration detention is justified by the prevention of flight risk and danger to the community.

10

72. Defendants’ practice of denying Plaintiffs Aleman Gonzalez and Gutierrez

11 Sanchez and proposed class members individualized bond hearings after six months thus violates

12 the Due Process Clause of the United States Constitution.

13

PRAYER FOR RELIEF

14 Wherefore, Plaintiffs pray this Court to:

15

73. Assume jurisdiction over this matter;

16

74. Certify a class pursuant to Federal Rule of Civil Procedure 23;

17

75. Order Defendants to automatically conduct bond hearings after six months of

18 detention for Plaintiffs Aleman Gonzalez and Gutierrez Sanchez and all class members who have

19 not yet been afforded a bond hearing and have or will have been detained by Defendants for at

20 least six months;

21

76. Declare that Defendants’ refusal to conduct individualized bond hearings after six

22 months violates the INA, the APA, and the United States Constitution;

23

77. Order Defendants to immediately cease refusing to conduct individualized bond

24 hearings after six months, and order all Immigration Judges within the Ninth Circuit to conduct a

25 bond hearing for any Plaintiff who has not yet been afforded a bond hearing at which the

26 Government carries the burden of proof by clear and convincing evidence to demonstrate that the

27 Plaintiff is a flight risk or a danger to the community; and, if bond is denied, to review and hold a

28 new bond hearing every six months to determine if release is warranted.

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1

78. Award reasonable costs and attorneys’ fees under the Equal Access to Justice Act,

2 and any other applicable statute or regulation; and

3

79. Grant such further relief as the Court may deem proper.

4

5 March 27, 2018

Respectfully submitted,

6

7

VAN DER HOUT, BRIGAGLIANO & NIGHTINGALE LLP

8

By: s/Judah Lakin2__________________________

Judah Lakin

9

Amalia Wille

10

Marc Van Der Hout

11

CENTRO LEGAL DE LA RAZA

12

By: s/Alison Pennington_____________________

13

Alison Pennington

Lisa Knox

14

Julia Rabinovich

Jesse Newmark 15

16 LAW OFFICES OF MATTHEW H. GREEN

17

By: s/Matthew H. Green____________________

Matthew H. Green 18

19 AMERICAN CIVIL LIBERTIES UNION

20

FOUNDATION OF SOUTHERN CALIFORNIA

By: s/Michael Kaufman_____________________

21

Michael Kaufman

22

23

AMERICAN CIVIL LIBERTIES UNION

24

FOUNDATION OF NORTHERN CALIFORNIA By: s/Vasudha Talla_______________________

25

Vasudha Talla

Julia Mass

26

27
28 2 Per Civil L.R. 5-1(i), I attest that I obtained concurrence in the filing of this documents from each of the other signatories.

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1

AMERICAN CIVIL LIBERTIES UNION SAN DIEGO AND IMPERIAL COUNTIES

2

By: s/Bardis Vakili_________________________

Bardis Vakili

3

4

Attorneys for Plaintiffs-Petitioners and the

5

Proposed Class

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF HABEAS CORPUS 15

 
 Case 3:18-cv-01869-JSC Document 33 Filed 06/05/18 Page 1 of 19

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 ESTEBAN ALEMAN GONZALEZ, et al.,

8

Plaintiffs,

9

v.

10 JEFFERSON B. SESSIONS, et al.,

11

Defendants.

Case No.18-cv-01869-JSC
ORDER RE PLAINTIFFS’ MOTIONS FOR CLASS CERTIFICATION AND PRELIMINARY INJUNCTION Re: Dkt. Nos. 21, 22

12

13

In Diouf v. Napolitano, 634 F.3d 1081, 1082 (9th Cir. 2011) (“Diouf II”), the Ninth Circuit

14 held that an individual facing prolonged detention under 8 U.S.C. section 1231(a)(6) “is entitled to

15 release on bond unless the government establishes that he is a flight risk or a danger to the

16 community.” The government has detained plaintiffs Esteban Aleman Gonzalez and Jose Eduardo

17 Gutierrez Sanchez pursuant to 8 U.S.C. § 1231(a)(6) for more than six months without an

18 individualized bond hearing. Accordingly, they filed this suit on behalf of themselves and a

19 putative class seeking declaratory and injunctive relief. Now pending before the Court are 20 Plaintiffs’ motions for class certification and preliminary injunction. (Dkt. Nos. 21 and 22.)1

21 Plaintiffs seek certification of a class of essentially all present and future section 1231(a)(6)

22 detainees in the Ninth Circuit and a preliminary injunction enjoining the government from

23 detaining plaintiffs and the class for more than 180 days without providing them with a bond

24 hearing before an immigration judge at which the government has the burden of justifying

25 detention. The dispositive issue is whether Diouf II is clearly irreconcilable with the United States

26

27 1 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the 28 ECF-generated page numbers at the top of the documents.

Case 3:18-cv-01869-JSC Document 33 Filed 06/05/18 Page 2 of 19

United States District Court Northern District of California

1 Supreme Court’s recent decision in Jennings. As the Court concludes that it is not, it certifies the

2 class and enjoins the government from failing to provide a bond hearing to 1231(a)(6) detainees

3 after 180 days in detention.

4

IMMIGRATION FRAMEWORK

5

The Immigration and Nationality Act (“INA”) authorizes the detention of noncitizens

6 awaiting removal from the United States. Different sections of the INA govern different phases of

7 detention. It authorizes “the Government to detain certain aliens seeking admission into the

8 country under §§ 1225(b)(1) and (b)(2)” and “aliens already in the country pending the outcome of

9 removal proceedings under §§ 1226(a) and (c).” Jennings v. Rodriguez, 138 S. Ct. 830, 838

10 (2018).

11

If the proceedings result in an order of removal, the Attorney General is required to remove

12 the noncitizen from the United States within a period of 90 days, known as the “removal period.”

13 See 8 U.S.C. § 1231(a)(1)(A). Detention during the 90 day removal period is mandatory. See id.

14 § 1231(a)(2). If the noncitizen is not removed during the removal period, continued detention is

15 authorized beyond the removal period in the discretion of the Attorney General. Id. § 1231(a)(6).

16 Section 1231(a)(6) encompasses noncitizens “whose collateral challenge to his removal order (a

17 motion to reopen) is pending in the court of appeals, as well as to aliens who have exhausted all

18 direct and collateral review of their removal orders but who, for one reason or another, have not

19 yet been removed from the United States.” Diouf II, 634 F.3d at 1085.

20

“An alien who expresses a fear of returning to the country designated in the reinstated

21 order of removal ... must be immediately referred to an asylum officer for an interview to

22 determine whether the alien has a reasonable fear of persecution or torture.” Andrade v. Sessions,

23 828 F.3d 826, 832 (9th Cir. 2016) (quoting 8 C.F.R. § 241.8(e)). “If the officer decides that the

24 alien does have a reasonable fear of persecution or torture, the case is referred to an immigration

25 judge (“IJ”) for full consideration of the request for withholding of removal only.” Ayala v.

26 Sessions, 855 F.3d 1012, 1015 (9th Cir. 2017); 8 C.F.R. § 208.31(e)). “If, however, the asylum

27 officer decides that the alien has not established a reasonable fear of persecution or torture, then

28 the alien is entitled to appeal that determination to an IJ.” Id. at 1015-1016; 8 C.F.R. § 208.31(g). 2

Case 3:18-cv-01869-JSC Document 33 Filed 06/05/18 Page 3 of 19

United States District Court Northern District of California

1 “On appeal, if the IJ affirms the officer’s negative fear determination, the case is returned to the

2 Service for removal, and the alien is not entitled to appeal further to the BIA.” Id. at 1016. The

3 noncitzen may, however, petition the Ninth Circuit for review of a negative reasonable fear

4 determination. Id.

5

FACTUAL BACKGROUND

6 A. Esteban Aleman Gonzalez

7

Plaintiff Esteban Aleman Gonzalez is a citizen of Mexico who applied for admission to the

8 United States in April 2000. (Dkt. No. 27-1.) During this process Mr. Gonzalez presented an

9 entry document that belonged to another person. (Id.) An immigration officer found that Mr.

10 Gonzalez was inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) because he sought to procure

11 admission “by fraud or by willfully misrepresenting a material fact.” (Id.) Mr. Gonzalez was

12 removed under an expedited removal order. (Id.) Sometime thereafter, Mr. Gonzalez unlawfully

13 reentered the United States. (Dkt. No. 27-2.) In August 2017, immigration officers arrested him

14 and determined that he was “removable as an alien who ha[d] illegally reentered the United States

15 after having been previously removed.” (Id.) (citing 8 U.S.C. § 1231(a)(5)). Mr. Gonzalez did not

16 contest the finding that he was removable and his removal order was reinstated on August 18,

17 2017. (Id.)

18

While in custody Mr. Gonzalez expressed a fear that he would persecuted or tortured if he

19 was removed him to Mexico. (Dkt. No. 27-3 ¶ 6). An asylum officer interviewed Mr. Gonzalez,

20 determined that he “has a reasonable fear persecution or torture,” and then referred him to an

21 immigration judge for “withholding-only” proceedings. (Id.) Thereafter, Mr. Gonzalez moved for

22 a bond hearing. (Dkt. No. 27-4). An immigration judge denied the motion for lack of jurisdiction

23 and scheduled a July 9, 2018 hearing on the merits of Mr. Gonzalez’s withholding-of-removal

24 claim. (Dkt. Nos. 27-4, 27-5.) On February 26, 2018, an ICE officer reviewed Mr. Gonzalez’s

25 custody status and determined that he will remain in ICE custody “[p]ending a ruling on [his

26 withholding-of-removal] claim” or until he demonstrates that his “removal is unlikely.” (Dkt. No.

27 27-6.)

28 // 3

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1 B. Jose Eduardo Gutierrez Sanchez

2

Plaintiff Jose Eduardo Gutierrez Sanchez is a citizen of Mexico who unlawfully entered

3 the United States in May 2009. (Dkt. No. 27-7.) Shortly thereafter, Mr. Sanchez was arrested and

4 charged as inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I). (Id.) An expedited removal order

5 issued and Mr. Sanchez was removed. (Id.) At a later date, Mr. Sanchez unlawfully reentered the

6 United States. (Dkt. No. 27-8.) On September 26, 2017, Mr. Sanchez was arrested and

7 immigration officials determined that he was “removable as an alien who ha[d] illegally reentered

8 the United States after having been previously removed” under 8 U.S.C. § 1231(a)(5). (Id.) Mr.

9 Sanchez did not contest he was removable and his May 2009 removal order was reinstated. (Id.)

10

While in custody, Mr. Sanchez also expressed a fear that he would persecuted or tortured if

11 removed to Mexico. (Dkt. No. 27-9 ¶ 6). An asylum officer interviewed him, determined that he

12 reasonably feared persecution or torture, and referred him to an immigration judge for

13 “withholding-only” proceedings. (Id.; see 8 C.F.R. §§ 208.31(e), 241.8(e).) In withholding-only

14 proceedings, Mr. Sanchez moved for a bond hearing which was denied for lack of jurisdiction.

15 (Dkt. No. 27-10.)

16

The IJ has scheduled a June 18, 2018 hearing on the merits of Mr. Sanchez’s withholding-

17 of-removal claim. (Dkt. No. 27-11.) On December 19, 2017, an ICE officer reviewed Mr.

18 Sanchez’s custody status. (Dkt. No. 31-1.) The officer relied on Mr. Sanchez’s criminal history,

19 including “arrests for possession of marijuana, obstruct/resist public officer, battery spouse,

20 robbery: second degree,” and Mr. Sanchez’s “multiple illegal entries” to conclude that Mr.

21 Sanchez “would be a danger and a flight risk if released.” (Id.)

22

THE CLASS CERTIFICATION MOTION

23

Plaintiffs ask the Court to certify as a class “all individuals who are detained pursuant to 8

24 U.S.C. § 1231(a)(6) in the Ninth Circuit by, or pursuant to the authority of, the U.S. Immigration

25 and Customs Enforcement (“ICE”), and who have reached or will reach six months in detention,

26 and have been or will be denied a prolonged detention bond hearing before an Immigration Judge

27

28 4

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1 (‘IJ’).”2

2 I. Legal Standard

3

“Federal Rule of Civil Procedure 23 governs the maintenance of class actions in federal

4 court.” Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1124 (9th Cir. 2017). To succeed on

5 their motion for class certification, Plaintiffs must satisfy the threshold requirements of Federal

6 Rule of Civil Procedure 23(a) as well as the requirements for certification under one of the

7 subsections of Rule 23(b). Mazza v. Am. Honda Motor Co., 666 F.3d 581, 588 (9th Cir.

8 2012). Rule 23(a) provides that a case is appropriate for certification as a class action if:

9

(1) the class is so numerous that joinder of all members is impracticable;

10

(2) there are questions of law or fact common to the class;

11

(3) the claims or defenses of the representative parties are typical of the claims or

12

defenses of the class; and

13

(4) the representative parties will fairly and adequately protect the interests of the

14

class.

15 Fed. R. Civ. P. 23(a). “[A] party must not only be prepared to prove that there are in fact

16 sufficiently numerous parties, common questions of law or fact, typicality of claims or defenses,

17 and adequacy of representation, as required by Rule 23(a),” but “also satisfy through evidentiary

18 proof at least one of the provisions of Rule 23(b).” Comcast v. Behrend, 569 U.S. 27, 133 S.Ct.

19 1426, 1432, 185 L.Ed.2d 515 (2013) (internal quotation marks, citations, and emphasis omitted).

20

Plaintiffs contends that the putative class satisfies Rule 23(b)(2), which requires that “final

21 injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”

22 For certification under Rule 23(b)(2), Plaintiffs must show that “declaratory relief is available to

23 the class as a whole” and that the challenged conduct is “such that it can be enjoined or declared

24 unlawful only as to all of the class members or as to none of them.” Wal-Mart Stores, Inc. v.

25 Dukes, 564 U.S. 338, 360 (2011).

26

27 2 Both the Central District of California and the Western District of Washington have certified

28

classes of detainees under section 1231(a)(6). Plaintiffs’ proposed class definition excludes those individuals that fall within those certified classes. (Dkt. No. 21 at 10 n.3.)

5

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1

Plaintiffs seek certification of a 23(b)(2) class as to their statutory and due process claims.

2 As they note, however, in Jennings the Supreme Court remanded the case to the Ninth Circuit to

3 address whether Rule 23 authorized class certification of the due process claims. 138 S.Ct. at 832.

4 The Ninth Circuit has recently asked the parties in that case for supplemental briefing on the

5 question. In light of this uncertainty, and given that addressing the due process claim is not

6 necessary to resolution of Plaintiffs’ motions, the Court denies without prejudice Plaintiffs’

7 motion to certify their due process claim. Instead, the Court will analyze the motion solely as to

8 the statutory claim.

9 II. Analysis

10

A. Plaintiffs Have Satisfied Rule 23(a)

11

The Court may certify a class only where “(1) the class is so numerous that joinder of all

12 members is impracticable; (2) there are questions of law or fact common to the class; (3) the

13 claims or defenses of the representative parties are typical of the claims or defenses of the class;

14 and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.

15 R. Civ. P. 23(A).

16

i. Numerosity

17

A putative class satisfies the numerosity requirement “if the class is so numerous that

18 joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Impracticability is not

19 impossibility, and instead refers only to the “difficulty or inconvenience of joining all members of

20 the class.” Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913-14 (9th Cir. 1964)

21 (citation omitted). “While there is no fixed number that satisfies the numerosity requirement, as a

22 general matter, as class greater than forty often satisfies the requirement, while one less than

23 twenty-one does not.” Ries v. Ariz. Beverages USA LLC, 287 F.R.D. 523, 526 (N.D. Cal. Nov. 27,

24 2012).

25

Plaintiffs estimate that the class currently contains at least 43 proposed members, 18 in

26 California and 25 in Arizona, but likely many more. (Dkt. No. 21-1 at 10 ¶¶ 6-9, 18 ¶ 5, 24 ¶¶5-6,

27

28 6

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1 29 ¶ 6, 35 ¶¶ 6,7.)3 These numbers make it impractical to bring all class members before the

2 Court on an individual basis. Further, Plaintiffs estimate this number will grow each day as the

3 government places additional individuals in custody who will later reach six months of detention

4 under § 1231(a)(6). Accordingly, Plaintiffs have established that the class is sufficiently

5 numerous.

6

ii. Commonality

7

“[C]ommonality requires that the class members’ claims depend on a common contention

8 such that ‘determination of its truth or falsity will resolve an issue that is central to the validity of

9 each [claim] in one stroke.’” Mazza, 666 F.3d at 588-89 (quoting Dukes, 131 S.Ct. at 2551). “The

10 plaintiff must demonstrate the capacity of classwide proceedings to generate common answers to

11 common questions of law or fact that are apt to drive the resolution of the litigation.” Id. (internal

12 quotation marks and citation omitted). To that end, the commonality requirement can be satisfied

13 “by even a single question.” Trahan v. U.S. Bank Nat’l Ass’n, No. C 09-03111 JSW, 2015 WL

14 74139, at *5 (N.D. Cal. Jan. 6, 2015). It is not necessary that “[a]ll questions of fact and law ... be

15 common to satisfy the rule.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). The

16 Ninth Circuit has found “[t]he existence of shared legal issues with divergent factual predicates is

17 sufficient, as is a common core of salient facts coupled with disparate legal remedies within the

18 class.” Id. “[T]he commonality requirements asks us to look only for some shared legal issue or

19 a common core of facts.” Id. Ultimately, commonality “requires the plaintiff to demonstrate the

20 class members have suffered the same injury.” Evon v. Law Offices of Sidney Mickell, 688 F.3d

21 1015, 1029 (9th Cir. 2012) (quoting Dukes, 131 S.Ct. at 2551).

22

Plaintiffs satisfy the commonality requirement because they share a common legal

23 question: whether detention beyond six months without an individualized bond hearing violates §

24 1231(a)(6) as interpreted by the Ninth Circuit in Diouf. “This question will be posed by the

25 detention of every member of the class and their entitlement to a bond hearing will largely be

26

27 3 Plaintiffs represent this number is at least 60, not 43, however after a review of Plaintiffs’

28

declarations the Court counts only 43 individuals that are represented by Plaintiffs’ counsel or are being detained under section 1231(a)(6) upon Plaintiffs’ counsel’s belief.

7

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1 determined by its answer.” See Rodriguez v. Hayes, 591 F.3d 1105, 1123 (9th Cir. 2010) (finding

2 commonality after petitioner raised the common question of whether detention of the putative

3 class members “is authorized by statute, and, in the alternative, that if their detention is authorized

4 it violates the Fifth Amendment’s guarantee of due process.”)

5

The Government’s arguments to the contrary are unpersuasive. They assert “Plaintiffs’

6 proposed class lacks commonality because the proffered class definition encompasses a broad

7 range of individuals with different factual bases for their claims, including diverse groups of aliens

8 whose legal and factual interests differ considerably from each other and from those of the

9 proposed class representatives.” (Dkt. No. 28 at 18: 4-7.) The Government is right that “members

10 of the proposed class do not share every fact in common or completely identical legal issues”;

11 however, “[t]his is not required by Rule 23(a)(1).” Rodriguez, 591 F.3d at 1122. Instead, “the

12 commonality requirement asks us to look only for some shared legal issue or a common core of

13 facts” and the proposed members have met that here: there is a shared legal question of whether

14 continued detention after six months without a bond hearing is permissible under § 1231(a)(6).

15 See id. If the Court ultimately rules in favor of Plaintiffs the relief will be the same - each class

16 member will be entitled to a bond hearing regardless of individual circumstances. This is

17 sufficient to meet the commonality requirement.

18

The Government further argues “under Zadvydas’s construction of § 1231(a)(6), the

19 detention of named Plaintiffs and their putative class does not raise a serious constitutional

20 problem, let alone violate the Due Process Clause, unless they can show that they are not

21 significantly likely to be removed in the reasonably foreseeable future.” See Zadvydas v. Davis,

22 533 U.S. 678, 701 (2001). The Government contends “this is a detail-specific analysis that

23 necessarily requires a factual assessment of, among other things, the likelihood that individuals

24 will prevail on their requests for relief from removal and, for those in withholding-only

25 proceedings, whether there are alternative countries to which they could be removed.” (Dkt. No.

26 28 at 19:23-20:1.) However, this argument goes to the merits of Plaintiffs’ claim, not whether the

27 commonality requirement is met. It is the Government’s contention that Plaintiffs and the absent

28 class members have to show they are not likely to be removed in the reasonably foreseeable 8

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1 future. Plaintiffs, on the other hand, assert that under section 1231(a)(6) as interpreted by the

2 Ninth Circuit in Diouf II, each Plaintiff and putative class member is entitled to a bond hearing

3 after six months regardless of whether they are likely to be removed in the reasonable foreseeable

4 future. Whether a Plaintiff has or has not been deemed to have a reasonable fear of return,

5 whether there are third-party countries where Plaintiffs can be removed, or whether certain

6 Plaintiffs may be considerably more or less likely to be removed in the reasonably foreseeable

7 future has no bearing on the common statutory question of whether under section 1231(a)(6)

8 Plaintiffs are entitled to a bond hearing.

9

Finally, the Government emphasizes that Plaintiffs’ proposed class includes “not only

10 individuals with reinstated removal orders who are detained pursuant to § 1231(a)(6), but also

11 individuals ‘who have been issued administratively final removal orders pursuant to 8 U.S.C. §

12 1228(b), as well as individuals who are awaiting judicial review of the BIA’s denial of a motion to

13 reopen removal proceedings, see 8 U.S.C. § 1229a(c)(7), and who have been issued a judicial stay

14 of removal.’” (Dkt. Nos. 28 at 21:9-13; 1 ¶ 30.) It argues that these Plaintiffs, although detained

15 under the same section as immigrants with reinstated removal orders, “are not similarly situated to

16 individuals in withholding-only proceedings” because they present “substantively different legal

17 claims challenging their final removal orders, are potentially seeking different forms of relief in

18 their removal proceedings beyond the narrow relief available in withholding-only proceedings,

19 and therefore may be considerably more or less likely to be removed in the reasonably foreseeable

20 future.” However, whether the immigrant was ordered removed under 8 U.S.C. § 1228(b) after

21 committing an aggravated felony, is seeking review of their motion to reopen removal proceedings

22 under 8 U.S.C. § 1229a(c)(7), or has been issued a judicial stay of removal, all proposed class

23 members are detained under the same statute: § 1231(a)(6). And under this common statute

24 Plaintiffs raise a legal question that applies to all proposed class members regardless of the

25 underlying reason for their removal.

26

Accordingly, commonality is satisfied.

27

iii. Typicality

28

Rule 23(a)(3) also requires that “the [legal] claims or defenses of the representative parties

9

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1 [be] typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “Typicality refers to

2 the nature of the claim or defense of the class representative and not on facts surrounding the

3 claim or defense.” Hunt v. Check Recovery Sys., Inc., 241 F.R.D. 505, 510 (N.D. Cal. Mar. 21,

4 2007) (citing Hanon v. Dataprods. Corp., 976 F.2d 497, 508 (9th Cir. 1992)). “The test of

5 typicality is whether other members have the same or similar injury, whether the action is based

6 on conduct which is not unique to the named plaintiffs, and whether other class members have

7 been injured by the same course of conduct.” Evon, 688 F.3d at 1030 (internal quotation marks

8 and citation omitted). The typicality requirement ensures that “the named plaintiff’s claim and the

9 class claims are so interrelated that the interests of the class members will be fairly and adequately

10 protected in their absence.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 158 n.13 (1982). Like

11 the commonality requirement, the typicality requirement is “permissive” and requires only that the

12 representative’s claims are “reasonably co-extensive with those of absent class members; they

13 need not be substantially identical.” Hanlon, 150 F.3d at 1020.

14

Plaintiffs have established typicality. Plaintiffs’ claim for a bond hearing “is reasonably

15 co-extensive with the claims of the class” because the class representatives, as well as the class as

16 a whole, have been detained pursuant to section 1231(a)(6) for six months or longer and have not

17 received a bond hearing. See Rodriguez, 591 F.3d at 1124. Although Plaintiffs and the proposed

18 class were ordered removed under different statutes and are at different points in the removal

19 process and hence do not raise identical claims, they all, as already discussed, are detained under

20 the same statute, raise the same statutory-based argument, and are “alleged victims of the same

21 practice of prolonged detention while in immigration proceedings.” See id.

22

The Government claims that Plaintiffs’ proposed class lacks typicality for the same reasons

23 it lacks commonality: that the factual variations in individual cases and Plaintiffs’ differences in

24 the likeliness of removal preclude typicality. These arguments fail for the reasons described

25 above.

26

Accordingly the typicality requirement is also met.

27

iv. Adequacy of Representation

28

Rule 23(a)(4) imposes a requirement related to typicality: that the class representative will

10

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1 “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The Court must

2 ask: “(1) do the named plaintiffs and their counsel have any conflicts of interest with other class

3 members and (2) will the named plaintiffs and their counsel prosecute the actions vigorously on

4 behalf of the class?” Evon, 688 F.3d at 1031 (quoting Hanlon, 150 F.3d at 1020); see also Brown

5 v. Ticor Title Ins., 982 F.2d 386, 290 (9th Cir. 1992) (noting that adequacy of representation

6 “depends on the qualifications of counsel for the representatives, an absence of antagonism, a

7 sharing of interests between representatives and absentees, and the unlikelihood that the suit is

8 collusive”) (citations omitted); Fed. R. Civ. P. 23(g)(1)(B) (stating that “class counsel must fairly

9 and adequately represent the interests of the class”).

10

Both the named Plaintiffs and counsel will adequately represent the class. First, Plaintiffs

11 represent that they will “think about the other class members and act on those interests.” (Dkt.

12 No. 21-1 at 52 ¶¶ 19-20, 59 ¶ 12, 60 ¶ 13). Second, Plaintiffs’ counsel is highly experienced in

13 class action litigation and immigration law. Marc Van Der Hout has four decades of experience

14 litigating immigration class actions. (Dkt. No. 21-1 at 65-69 ¶¶ 3, 8.) His associates, Judah Lakin

15 and Amalia Willie, are also experienced in class action litigation and practice exclusively in the

16 area of immigration. (Id. ¶¶ 10-13.) The four attorneys at Centro Legal de la Raza, Alison

17 Pennington, Lisa Knox, Julia Rabinovich and Jesse Newmark, and the four ACLU attorneys,

18 Michael Kaufman, Bardis Vakili, Julia Mass and Vasudha Talla, have experience litigating

19 complex immigration cases. (Dkt. No. 21-1 at 71-77, 81-86.) Finally, Matt Green has several

20 years of experience in deportation defense, including representing immigrants detained under

21 section 1231(a)(6). (Id. at 32-38.)

22

The Government does not dispute the adequacy of counsel. Instead it argues “the named

23 Plaintiffs cannot represent the interests of potential putative class members who have already been

24 denied or granted withholding-only relief.” However, whether a detainee has been denied or

25 granted withholding-only relief, or like Plaintiffs, have not yet had their request for relief

26 reviewed, has no bearing on the detainee’s right to a bond hearing under section 1231(a)(6) as

27 interpreted by the Ninth Circuit in Diouf II. In other words, the granting or denial of withholding-

28 only relief does not mean that the detainee is entitled to a bond hearing, it only means that the 11

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1 detainee’s removal process as to a particular country will or will not move forward. See Padilla-

2 Ramierz v. Bible, 882 F.3d 826, 836 (9th Cir. 2017) (clarifying that the decision at stake in

3 withholding-only proceedings is not whether the immigrant is to be removed, but the “more

4 limited decision of whether he may be removed” to his country of origin). The detainee can still

5 remain in detention pursuant to § 1231(a)(6) while an alternative country is identified.

6

The Government also asserts “both named Plaintiffs are detained as they have re-entered

7 the United States illegally” and therefore they “cannot represent the interests of putative class

8 members who do not have reinstated removal orders, but are detained pursuant to § 1231(a)(6).”

9 However, the common legal question does not turn on the nature of Plaintiffs’ removal but rather

10 the statute under which Plaintiffs have been detained. Therefore Plaintiffs, who are detained

11 pursuant to § 1231(a)(6), can adequately represent others detained under § 1231(a)(6). The

12 Government’s remaining challenges are only re-assertions of their commonality and typicality

13 arguments. For the reasons described above, those arguments fail.

14

Accordingly, adequacy is met.

15

B. Rule 23(b)(2) is Satisfied

16

If all four prerequisites of Rule 23(a) are satisfied, the Court must also find that Plaintiffs

17 “satisfy through evidentiary proof” at least one of the three subsections of Rule 23(b). Comcast

18 Corp. v. Behrend, 133 S.Ct. 1426, 1432 (2013). Rule 23(b) sets forth three general types of class

19 actions. See Fed. R. Civ. P. 23(b)(1)-(b)(3). Of these types, Plaintiffs seek certification under

20 Rule 23(b)(2). The Court can certify a Rule 23(b)(2) class if “the party opposing the class has

21 acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or

22 corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P.

23 23(b)(2). “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would

24 provide relief to each member of the class.” Dukes, 564 U.S. at 360. “[U]nlike Rule 23(b)(3), a

25 plaintiff does not need to show predominance of common issues or superiority of class

26 adjudication to certify a Rule 23(b)(2) class.” In re Yahoo Mail Lit., 308 F.R.D. 577, 587 (N.D.

27 Cal. May 26, 2015). Rather, “[i]n contrast to Rule 23(b)(3) classes, the focus [in a Rule 23(b)(2)

28 class] is not on the claims of the individual class members, but rather whether [Defendant] has 12

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1 engaged in a ‘common policy.’” Id. at 599.

2

The Rule 23(b)(2) requirements are also met. It is the Government’s uniform policy that

3 bond hearings are not required under § 1231(a)(6) for those detained for greater than six months.

4 Further the Government “refuses to act on grounds that apply generally to the class” – class

5 members are denied the opportunity to request release on bond by an immigration judge.

6 Plaintiffs seek declaratory and injunctive relief that would benefit all proposed class members:

7 individualized bond hearings after six months of detention.

8

The Government argues Plaintiffs cannot satisfy Rule 23(b)(2) because 8 U.S.C. §

9 1252(f)(1) deprives this Court of jurisdiction to grant relief on Plaintiffs’ statutory claims on a

10 classwide basis. Section 1252(f)(1) provides that “no court (other than the Supreme Court) shall

11 have jurisdiction or authority to enjoin or restrain the operation of [8 U.S.C. §§ 1221–1232] other

12 than with respect to the application of such provisions to an individual alien against whom

13 proceedings under such part have been initiated.” 8 U.S.C. § 1252(f)(1). Respondents in

14 Rodriguez made the same argument to which the Ninth Circuit retorted “Respondents are doubly

15 mistaken.” Rodriguez, 591 F.3d at 1119. 8 U.S.C. § 1252(f)(1) does not bar either declaratory or

16 injunctive class-wide relief. Id. at 1120. “Section 1252(f) prohibits only injunction of the

17 operation of the detention statutes, not injunction of a violation of the statutes.” Id. (internal

18 quotations omitted). And the text of the Act clearly shows “that Section 1252(f) was not meant to

19 bar classwide declaratory relief.” Id. at 1119.

20

As the Rule 23(a) and (b)(2) requirements are met, Plaintiffs’ motion for class certification

21 is GRANTED as to their statutory claims. See Parsons v. Ryan, 754 F.3d 657, 686 (9th Cir. 2014)

22 (“the primary role of [Rule 23(b)(2)] has always been the certification of civil rights class

23 actions”).

24

PRELIMINARY INJUNCTION

25

Plaintiffs request this Court issue a class wide preliminary injunction “enjoining the

26 government from detaining class members for more than 180 days without affording them a bond

27 hearing” before an IJ. (Dkt. No. 22 at 8:8-11.)

28

A preliminary injunction is an “extraordinary remedy.” Winter v. Nat. Res. Defense

13

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1 Council, 555 U.S. 7, 24 (2008). “A plaintiff seeking a preliminary injunction must establish that

2 he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of

3 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the

4 public interest.” Id. at 20. Alternatively, “if a plaintiff can only show that there are serious

5 questions going to the merits—a lesser showing than likelihood of success on the merits—then a

6 preliminary injunction may still issue if the balance of hardships tips sharply in the plaintiff's

7 favor, and the other two Winter factors are satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc.,

8 709 F.3d 1281, 1291 (9th Cir. 2013) (internal citation and quotation marks omitted). In this

9 respect, the Ninth Circuit employs a sliding scale approach, wherein “the elements of the

10 preliminary injunction test are balanced so that a stronger showing of one element may offset a

11 weaker showing of another.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th

12 Cir. 2011). A “serious question” is one on which the movant “has a fair chance of success on the

13 merits.” Sierra On–Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1421 (9th Cir. 1984)

14 (internal citation omitted).

15

A. Likelihood of Success on the Merits

16

Plaintiffs’ likelihood of success on their now-certified statutory claim turns on whether

17 Diouf II is still good law in the Ninth Circuit. In Diouf II, the Ninth Circuit held that immigrants

18 detained pursuant to section 1231(a)(6) for more than six months are entitled to a bond hearing

19 before an immigration judge. 634 F.3d at 1086, 1091. Thus, under Diouf II, Plaintiffs and the

20 class members are entitled to an individual bond hearing before an immigration judge and the

21 likelihood of success prong is satisfied. The Government nonetheless insists that Diouf II was

22 overruled by the United States Supreme Court’s decision in Jennings v. Rodriguez, 138 S.Ct. 830

23 (2018.)

24

This Court is required to follow Diouf II unless the theory or underlying reasoning of

25 Jennings is “clearly irreconcilable” with Diouf II. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.

26 2003).

27

The “clearly irreconcilable” requirement is “a high standard.” So

long as the court “can apply our prior circuit precedent without

28

running afoul of the intervening authority” it must do so. “It is not

14

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enough for there to be some tension between the intervening higher

1

authority and prior circuit precedent, or for the intervening higher

authority to cast doubt on the prior circuit precedent.” 2

United States v. Robertson, 875 F.3d 1281, 1291 (9th Cir. 2017) (internal quotation marks and

3

citations omitted). To decide whether Jennings is clearly irreconcilable with Diouf II, several

4

cases must be reviewed.

5

In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court applied the doctrine of

6 constitutional avoidance4 to construe section 1231(a)(6) “to mean that an alien who has been

7

ordered removed may not be detained beyond ‘a period reasonably necessary to secure removal,’”

8

and that “six months is a presumptively reasonable period.” Jennings, 138 S.Ct. at 843. After

9

being detained for six months, and if the noncitizen provides reason to believe he will not be

10

removed in the reasonably foreseeable future, “the Government must either rebut that showing or

11

release the alien.” Zadvydas, 533 U.S. at 701.

12

Seven years later, in Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942

13 (9th Cir. 2008), the Ninth Circuit reviewed 8 U.S.C. section 1226(a). The court held that to

14

construe the statute to allow prolonged detention without adequate procedural protections, that is,

15

bond hearings before an immigration judge, “would raise serious constitutional concerns.” Id. at

16

950. Applying the canon of constitutional avoidance, the court therefore held that section 1226(a)

17

“must be construed as requiring the Attorney General to provide the alien without such a hearing.”

18

Id. (emphasis in original). In Diouf II, the Ninth Circuit extended the holding of Casas-Castrillon

19

to aliens detained under § 1231(a)(6).

20

As was the case in Casas–Castrillon, prolonged detention under §

21

1231(a)(6), without adequate procedural protections, would raise

“serious constitutional concerns.” Casas–Castrillon, 535 F.3d at

22

950. To address those concerns, we apply the canon of constitutional

avoidance and construe § 1231(a)(6) as requiring an individualized

23

bond hearing, before an immigration judge, for aliens facing

prolonged detention under that provision. See id. at 951. Such aliens

24

are entitled to release on bond unless the government establishes

that the alien is a flight risk or will be a danger to the community. 25

26

27

4 “The canon of constitutional avoidance is a ‘cardinal principle’ of statutory interpretation. [W]hen an Act of Congress raises a serious doubt as to its constitutionality, this Court will first

28

ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Diouf II, 634 F.3d 1086 n.7 (internal quotation marks and citations omitted).

15

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United States District Court Northern District of California

1 See id. at 1086. Under Diouf II, then, the Government is required to provide Plaintiffs and the

2 class members a bond hearing before an immigration judge.

3

The Supreme Court decided Jennings v. Rodriguez in February of this year. Jennings

4 reviewed the Ninth Circuit’s decision in Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015).

5 According to the Supreme Court, in Rodriguez v. Robbins the Ninth Circuit:

6

relying heavily on the canon of constitutional avoidance, . . .

construed §§ 1225(b) and 1226(c) as imposing an implicit 6–month

7

time limit on an alien's detention under these sections. After that

point, the Court of Appeals held, the Government may continue to

8

detain the alien only under the authority of § 1226(a). The Court of

Appeals then construed § 1226(a) to mean that an alien must be

9

given a bond hearing every six months and that detention beyond the

initial 6–month period is permitted only if the Government proves

10

by clear and convincing evidence that further detention is justified.

11 Jennings, 138 S. Ct. at 839. The Supreme Court then went on to reverse the Ninth Circuit. First,

12 the Court held that the canon of constitutional avoidance—while a valid doctrine—could not be

13 applied to sections 1225(b) and 1226(c) because those statutes required mandatory detention for a

14 certain period rather than the discretionary detention called for by section 1231(a)(6). Id. at 842-

15 44, 46-47. Section 1226(a), however, contains the discretionary language “may detain” which the

16 Court held could render the statute ambiguous and thus permit the application of the canon of

17 constitutional avoidance. With respect to section 1226(a), the Supreme Court stated:

18

The Court of Appeals ordered the Government to provide procedural

protections that go well beyond the initial bond hearing established

19

by existing regulations—namely, periodic bond hearings every six

months in which the Attorney General must prove by clear and

20

convincing evidence that the alien’s continued detention is

necessary. Nothing in § 1226(a)’s text—which says only that the

21

Attorney General “may release” the alien “on ... bond”—even

remotely supports the imposition of either of those requirements.

22

Nor does § 1226(a)’s text even hint that the length of detention prior

to a bond hearing must specifically be considered in determining

23

whether the alien should be released.

24 Jennings, 138 S. Ct. 830, 847–48.

25

The Government argues that because in Jennings the Supreme Court held that “‘[N]either

26 § 1225(b)(1) nor § 1225(b)(2) says anything whatsoever about bond hearings;’ § 1226(c) ‘imposes

27 an affirmative prohibition on releasing detained aliens,’ except under an express exception; and

28 ‘[n]othing in § 1226(a)’s text . . . even remotely supports the imposition’ of a bond hearing 16

Case 3:18-cv-01869-JSC Document 33 Filed 06/05/18 Page 17 of 19

United States District Court Northern District of California

1 requirement” Diouf II is clearly irreconcilable with Jennings. (Dkt. No. 27 at 9.) Not so.

2

First, the Supreme Court held that the canon of constitutional avoidance—which the Ninth

3 Circuit used to interpret section 1225(b)(1) and (2)—could not be applied to those statutes to

4 imply the procedural requirement of a bond hearing because the statutes “mandate detention until

5 a certain point and authorize release prior to that point only under limited circumstances.” Id. at

6 844. In doing so, the Court specifically distinguished its earlier decision in Zadvydas which

7 applied the canon of constitutional avoidance to section 1231(a)(6)—the statute at issue here—to

8 find certain procedural requirements. Id. (“While Zadvydas found § 1231(a)(6) to be ambiguous,

9 the same cannot be said of §§ 1225(b)(1) and (b)(2)”); see also Hurtado-Romero v. Sessions, 2018

10 WL 2234500 (N.D. Cal. May 16, 2018) (noting that the factors negating ambiguity, and thus the

11 appropriateness of the application of the canon of constitutional avoidance, are not present in

12 section 1231(a)(6)). Thus, far from being clearly irreconcilable with Diouf II’s application of the

13 canon of constitutional avoidance to section 1231(a)(6), Jennings reaffirms the canon’s application

14 to that statute.

15

Second, Jennings does not overrule Diouf II’s holding that pursuant to the application of

16 the canon of constitutional avoidance section 1231(a)(6) must be construed as requiring an

17 individual bond hearing for prolonged detention. The Government argues that since Jennings held

18 that section 1226(a) cannot be construed to require periodic bond hearings every six months at

19 which the government bears the burden of proof by clear and convincing evidence because

20 nothing in the text of the statute hints at those requirements, 138 S.Ct. 847-48, section 1231(a)(6)

21 cannot be interpreted as requiring a bond hearing for prolonged detention. But Jennings said

22 nothing about section 1231(a)(6) not being capable of being plausibly construed as requiring a

23 bond hearing for prolonged detention. To the contrary, Jennings specifically did not overrule

24 Zadvydas and in Zadvydas the Supreme Court used the canon of constitutional avoidance to

25 construe section 1231(a)(6) to include procedural requirements not specifically set forth in the

26 statute. Thus, the Government’s interpretation of Jennings is in tension with Zadvydas. See

27 Hurtado-Romero, 2018 WL 2234500 at *2. This Court can find Jennings clearly irreconcilable

28 with Diouf II only by ignoring Zadvydas. However, even if “recent Supreme Court jurisprudence 17

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United States District Court Northern District of California

1 has perhaps called into question the continuing viability of [its precedent], [the lower courts] are

2 bound to follow a controlling Supreme Court precedent until it is explicitly overruled by that

3 Court.” Nunez-Reyes v. Holder, 646 F.3d 684, 692 (9th Cir. 2011).

4

Jennings is in tension with Diouf II and perhaps even calls it and Zadvydas into doubt. But

5 such circumstances do not permit this federal trial court to not follow Diouf II. See Robertson,

6 875 F.3d at 1291. As Diouf II is not clearly irreconcilable with Jennings it remains good law in

7 this Circuit. Plaintiffs have therefore shown a likelihood of success on the merits of their INA and

8 APA statutory claims that under section 1231(a)(6) the Government must provide Plaintiffs and

9 the class members an individualized bond hearing.

10

B. Remaining Injunction Factors

11

The Government does not address the remaining preliminary injunction factors. Instead, it

12 simply asserts that if the Court considers them, “the key point is that the public interest favors

13 applying federal law correctly.” As Jennings is not clearly irreconcilable with Diouf II, the public

14 interest weighs in favor of the Government providing Plaintiffs and the class member bond

15 hearings as required by Diouf II.

16

The remaining factors, irreparable harm and balance of equities, also weigh in favor of an

17 injunction. Plaintiffs face compounding harm with each additional day they remain in custody

18 without a bond hearing, as required by existing Ninth Circuit authority. See Villalta v. Sessions,

19 No. 17-CV-05390-LHK, 2017 WL 4355182, at *3 (N.D. Cal. Oc. 2, 2017). Further, the harm to

20 Plaintiffs in remaining in detention without a bond hearing clearly outweighs any “harm” to the

21 Government in providing bond hearings.

22

In sum, the four preliminary injunction factors weigh in Plaintiffs’ favor.

23

CONCLUSION

24

For the reasons described above, Plaintiffs’ motion for class certification of section

25 1231(a)(6) detainees in the Ninth Circuit is GRANTED as to their statutory claims. Van Der

26 Hout, Brigagliano & Nightingale, LLP, Centro Legal De La Raza, Matthew Green, ACLU-SC,

27 ACLU-NC, and ACLU-SD are appointed as class counsel.

28

Plaintiffs’ motion for a preliminary injunction under the INA and APA is also GRANTED.

18

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United States District Court Northern District of California

1 The Government is enjoined from detaining Plaintiffs and the class members pursuant to section

2 1231(a)(6) for more than 180 days without a providing each a bond hearing before an IJ as

3 required by Diouff II.

4

This Order disposes of Docket Nos. 21 and 22.

5

6

IT IS SO ORDERED.

7 Dated: June 5, 2018

8

9

10

JACQUELINE SCOTT CORLEY United States Magistrate Judge

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 19

 
 Case 3:18-cv-01869-JSC Document 42 Filed 07/20/18 Page 1 of 2

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 ESTEBAN ALEMAN GONZALEZ, et al.,

8

Plaintiffs,

9

v.

10 JEFFERSON B. SESSIONS, et al.,

11

Defendants.

Case No.18-cv-01869-JSC
ORDER RE: DEFENDANTS' MOTION FOR CLARIFICATION OF THE COURT'S JUNE 5, 2018 ORDER Re: Dkt. No. 36

12

13

Before the Court is Defendants’ motion for clarification of the Court’s June 5, 2018 Order

14 granting Plaintiffs’ motions for preliminary injunction and class certification. Defendants seek

15 clarification regarding the certified class; specifically, whether it applies only to “aliens who are

16 detained under 8 U.S.C. § 1231(a)(6) ‘pending determination as to whether they can remain in the

17 United States’ because they ‘have live claims before either an administrative or judicial

18 adjudicative body,’ and does not more broadly enjoin the Government from detaining any alien

19 under 8 U.S.C. § 1231(a)(6) for more than 180 days without an individualized bond hearing.” 20 (Dkt. No. 36 at 2) (quoting Dkt. No. 1 at ¶ 2.).1

21

The Court’s Order covers the class as described by Plaintiffs in their motion for

22 preliminary injunction; specifically:

23

Plaintiffs [lead plaintiffs and putative class members] are

noncitizens who are subject to final administrative orders of removal

24

and are currently held in immigration detention under the authority

of 8 U.S.C. § 1231(a)(6), Immigration and Nationality Act (“INA”)

25

§ 241(a)(6). Plaintiffs have live claims before either the Immigration

Court, the Board of Immigration Appeals (“BIA” or “Board”), or a

26

circuit court of appeals. As a result, the government does not have

27

28

1 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents.

Case 3:18-cv-01869-JSC Document 42 Filed 07/20/18 Page 2 of 2

United States District Court Northern District of California

the authority to remove Plaintiffs and many Plaintiffs will ultimately

1

win the right to remain lawfully in the United States."

2 (Dkt. No. 22 at 8-9.) (emphasis added). Furthermore, Plaintiffs described the putative class as

3 individuals “detained pursuant to § 1231(a)(6) while they pursue defenses to removal that would

4 allow them to remain in the United States.” (Id. at 10.) (emphasis added).

5

Thus, for purposes of the preliminary injunction and the current class certification order,

6 the class includes only those individuals detained under Section 1231(a)(6) who have “live

7 claims” before an adjudicative body. This description of the certified class is consistent with

8 Diouf v. Napolitano, 634 F.3d 1081, 1092 (9th Cir. 2011), which held that an individual “facing 9 prolonged detention2 under § 1231(a)(6) is entitled to a bond hearing before an immigration

10 judge.” The Diouf court noted that “[i]f the 180-day threshold has been crossed, but the alien’s

11 release or removal is imminent, [Department of Homeland Security] is not required to conduct a

12 180-day review, see 8 C.F.R. § 241.4(k)(3), and neither should the government be required to

13 afford the alien a hearing before an immigration judge.” Id. at 1092 n.13. Enjoining the

14 Government from detaining any individual under 8 U.S.C. § 1231(a)(6) for more than 180 days

15 without an individualized bond hearing—including those whose “release or removal is

16 imminent”—would therefore conflict with Diouf.

17

This Order disposes of Docket No. 36 and vacates the hearing scheduled for July 26, 2018.

18

IT IS SO ORDERED.

19 Dated: July 20, 2018

20

21

22

JACQUELINE SCOTT CORLEY United States Magistrate Judge

23

24

25

26

27

28

2 “As a general matter, detention is prolonged when it has lasted six months and is expected to continue more than minimally beyond six months.” Diouf, 634 F.3d at 1092 n.13.

2

 
 Case 3:18-cv-01869-JSC Document 73 Filed 04/07/20 Page 1 of 68

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ESTEBAN ALEMAN GONZALEZ; EDUARDO GUTIERREZ SANCHEZ,
Plaintiffs-Appellees,
v.
WILLIAM P. BARR, Attorney General; CHAD WOLF, Acting Secretary, Department of Homeland Security; JAMES MCHENRY, Director, Executive Office for Immigration Review, Department of Justice; CHRISTOPHER A. SANTORO, Acting Chief Immigration Judge, Executive Office for Immigration Review, Department of Justice; DAVID W. JENNINGS, Field Office Director for the San Francisco Field Office of U.S. Immigration and Customs Enforcement, Department of Homeland Security; DAVID O. LIVINGSTON, Sheriff, Contra Costa County; KRISTI BUTTERFIELD, Facility Commander, West County

No. 18-16465
D.C. No. 3:18-cv-01869-
JSC
OPINION

Case 3:18-cv-01869-JSC Document 73 Filed 04/07/20 Page 2 of 68

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ALEMAN GONZALEZ V. BARR

Detention Facility, Contra Costa County,*
Defendants-Appellants.

Appeal from the United States District Court for the Northern District of California
Jacqueline Scott Corley, Magistrate Judge, Presiding
Argued and Submitted November 13, 2019 Pasadena, California
Filed April 7, 2020
Before: FERDINAND F. FERNANDEZ, MILAN D. SMITH, JR., and ERIC D. MILLER, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.; Dissent by Judge Fernandez

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Chad Wolf is automatically substituted as the Acting Secretary of the U.S. Department of Homeland Security and Christopher A. Santoro is automatically substituted as the Acting Chief Immigration Judge of the Executive Office for Immigration Review.

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ALEMAN GONZALEZ V. BARR

3

SUMMARY**

Immigration
In an action where Plaintiffs—who represent a certified class of aliens who are subject to final orders of removal and are detained pursuant to 8 U.S.C. § 1231(a)(6) within the Ninth Circuit—challenged their prolonged detention without an individualized bond hearing, the panel affirmed the district court’s preliminary injunction requiring the Government to provide each class member detained for six months or longer with a bond hearing before an immigration judge where the burden is on the Government to justify continued detention.
Class members are detained under 8 U.S.C. § 1231(a)(6), which authorizes the Government to detain aliens subject to final orders of removal, or reinstated final orders of removal. The class includes only § 1231(a)(6) detainees who have “live claims” of defense against removal before an IJ, the Board of Immigration Appeals, or a circuit court of appeals, such as withholding-only claims, and the class excludes aliens whose release or removal is imminent, as well as aliens who are members of certified classes in other litigations pending in the Ninth Circuit.
In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court applied the canon of constitutional avoidance to § 1231(a)(6) and held that six months was a presumptively reasonable length of detention and that, after that period, once an alien provides good reason to believe there is no
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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ALEMAN GONZALEZ V. BARR

significant likelihood of removal in the reasonably foreseeable future, the Government must provide evidence to rebut that showing. In Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) (Diouf II), a three-judge panel of this court applied the canon to construe § 1231(a)(6) as requiring an individualized bond hearing before an IJ for an alien detained for six months or longer when the alien’s release or removal is not imminent.
In this case, the district court issued an injunction requiring the Government to provide class members with hearings after six months of detention, as required by Diouf II. Following this court’s decision in Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011), which held that due process requires the government to bear the burden of proof in bond hearings, the injunction also requires the Government to bear the burden to justify an alien’s continued detention in the required hearings. On appeal, the Government asserted only that the district court erred by concluding that Plaintiffs are likely to succeed on the merits of their statutory claims; it did not challenge the district court’s decision on the other preliminary injunction factors.
The panel held that Plaintiffs are likely to succeed on the merits of their claim that § 1231(a)(6) requires the Government to provide class members with an individualized bond hearing in accordance with Diouf II. In so holding, the panel concluded that Diouf II is not clearly irreconcilable with Jennings v. Rodriguez, 138 S. Ct. 830 (2018), in which the Supreme Court rejected this court’s application of the canon of constitutional avoidance to construe different immigration detention statutes. In Jennings, the Supreme Court explained that the canon comes into play only when a statute is found to be susceptible to more than one construction, and criticized this court for

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ALEMAN GONZALEZ V. BARR

5

adopting implausible constructions 8 U.S.C. §§ 1225(b), 1226(a), and 1226(c) to hold that detained aliens have a statutory right to periodic bond hearings at six months under those provisions. The panel recognized some tension between Diouf II and Jennings but concluded that the decisions are not so fundamentally inconsistent that the court could no longer apply Diouf II in light of the high standard for showing clear irreconcilability. The panel underscored that Jennings repeatedly limited its analysis to the statutory provisions at issue there, and Jennings’s reasoning showed that there are material textual differences between § 1231(a)(6) and the other immigration detention statutes. Further, the panel concluded that because Jennings did not invalidate this court’s constitutional due process holding in Singh, the district court properly required the Government to bear a clear and convincing burden of proof at such bond hearings.
Rejecting the Government’s argument that Diouf II’s mode of applying the canon contravened Jennings, the panel explained that Diouf II and Jennings relied on the same principles governing application of the canon. The panel also rejected the Government’s argument that Diouf II improperly “inserted” a bond hearing requirement in contravention of Jennings, reasoning that Diouf II relied on earlier circuit precedent that construed § 1231(a)(6) to permit release on bond without reliance on the canon. The panel also rejected the Government’s argument that the Supreme Court’s treatment of § 1226(a) in Jennings undercut Diouf II, explaining that the Court rejected the imposition of a six-month bond hearing requirement for § 1226(a) but that the Court did not find that the government’s regulations providing for an initial bond hearing for § 1226(a) detainees contravened the statutory text. The panel further reasoned that, unlike any of the

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ALEMAN GONZALEZ V. BARR

detention statutes at issue in Jennings, Zadvydas and Jennings’s discussion of that decision support the conclusion that Diouf II is not clearly irreconcilable with Jennings. The panel found additional support for the conclusion that Diouf II is not clearly irreconcilable with Jennings in the Third Circuit’s decision in Guerrero-Sanchez v. Warden York County Prison, 905 F.3d 208 (3d Cir. 2018), which expressly adopted Diouf II’s construction of § 1231(a)(6) in the wake of Jennings.
Finally, the panel rejected the Government’s contention that the Supreme Court already applied the canon to § 1231(a)(6) to prohibit indefinite detention in Zadvydas, and therefore, the district court could not “re-apply” the canon. Likewise, the panel rejected the Government’s argument that Clark v. Martinez, 543 U.S. 371 (2005), stands for the proposition that courts can apply only Zadvydas’s construction of § 1231(a)(6) in all cases, and therefore, the district court erroneously departed from the framework Zadvydas established for federal habeas courts.
Dissenting, Judge Fernandez stated that Jennings is clearly irreconcilable with Diouf II’s reasoning, writing that the court in Diouf II did not identify a textual ambiguity in the statute regarding a bond hearing requirement and did not identify any plausible basis in the statutory text for requiring such a hearing. Judge Fernandez also wrote that Diouf II’s reasoning that § 1231(a)(6) detainees were entitled to individualized bond hearings simply because this court had conjured such hearings for § 1226(a) detainees is clearly irreconcilable with Jennings.

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ALEMAN GONZALEZ V. BARR

7

COUNSEL

Matthew P. Seamon (argued), Cara E. Alsterberg, and Mary L. Larakers, Trial Attorneys; T. Monique Peoples, Senior Litigation Counsel; Elianis N. Perez, 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.

Michael Kaufman (argued), American Civil Liberties Union Foundation of Southern California, Los Angeles, California; Alison Pennington, Lisa Knox, and Jesse Newmark, Centro Legal de la Raza, Oakland, California; Marc Van Der Hout, Judah Lakin, and Amalia Wille, Van Der Hout LLP, San Francisco, California; Matthew H. Green, Law Offices of Matthew H. Green, Tucson, Arizona; Vasudha Talla, American Civil Liberties Union Foundation of Northern California, San Francisco, California; Bardis Vakili, American Civil Liberties Union Foundation of San Diego and Imperial Counties, San Diego, California; for PlaintiffsAppellees.

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ALEMAN GONZALEZ V. BARR

OPINION
M. SMITH, Circuit Judge:
Esteban Aleman Gonzalez and Eduardo Gutierrez Sanchez (Plaintiffs) represent a certified class of individuals who are subject to final removal orders and are detained pursuant to 8 U.S.C. § 1231(a)(6), within our court’s jurisdiction for six months or more, and who have been or will be denied an individualized bond hearing before an immigration judge (IJ).
Section 1231(a)(6) authorizes Defendants-Appellants (hereinafter, the Government1) to detain aliens subject to final removal orders, or reinstated final removal orders. In Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) (Diouf II), a three-judge panel of our court applied the canon of constitutional avoidance to construe § 1231(a)(6) as requiring an individualized bond hearing before an IJ for an alien detained for six months or longer when the alien’s release or removal is not imminent. Id. at 1086, 1091–92 & n.13. In this case, Plaintiffs sought a preliminary injunction requiring the Government to provide class members with an

1 We use the term “the Government” to refer collectively to the following Defendants-Respondents who Plaintiffs sued in their official capacities, including as substituted: (1) William P. Barr, United States Attorney General, (2) Chad Wolf, Acting Secretary of the U.S. Department of Homeland Security, (3) James McHenry, Director of the Executive Office for Immigration Review (EOIR), (4) Christopher A. Santoro, Acting Chief Immigration Judge, EOIR, (5) David W. Jennings, Field Office Director for the San Francisco Field Office of U.S. Immigration and Customs Enforcement (ICE), (6) David O. Livingston, Contra Costa County Sheriff, and (7) Kristi Butterfield, Facility Commander, West County Detention Facility, Contra Costa County. Our use of the uncapitalized term “the government” should not be construed as a reference to the Defendants-Respondents.

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ALEMAN GONZALEZ V. BARR

9

individualized bond hearing in accordance with Diouf II. Relying on our court’s decision in Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011), Plaintiffs also sought for the Government to bear the burden of proof at such a hearing. Concluding that it remained bound by Diouf II, the district court granted the preliminary injunction. The Government appeals, urging us to reverse and vacate.
We must decide whether Plaintiffs are likely to succeed on the merits of their claim that § 1231(a)(6) requires the Government to provide class members with an individualized bond hearing. As it argued unsuccessfully to the district court, the Government principally argues that Diouf II is clearly irreconcilable with the Supreme Court’s decision in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), a decision that rejected our court’s application of the canon of constitutional avoidance to construe different immigration detention statutes. Despite the district court’s reliance on our decision in Diouf II, the Government further argues that the district court impermissibly “re-applied” the canon to § 1231(a)(6) to grant the preliminary injunction. According to the Government, Clark v. Martinez, 543 U.S. 371 (2005), establishes that the Court’s construction of § 1231(a)(6) in Zadvydas v. Davis, 533 U.S. 678 (2001), is the single permissible application of the canon to the provision.
The threshold issue we must resolve is whether Diouf II is clearly irreconcilable with Jennings. As a three-judge panel, we are bound by the prior decision of another threejudge panel. Miller v. Gammie, 335 F.3d 889, 893, 899–900 (9th Cir. 2003) (en banc). This rule gives way when, but only when, the earlier decision is clearly irreconcilable with the holding or reasoning of intervening authority from our court sitting en banc or the Supreme Court. Id. at 893, 899– 900. “The ‘clearly irreconcilable’ requirement is ‘a high

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standard.’” United States v. Robertson, 875 F.3d 1281, 1291 (9th Cir. 2017) (quoting Rodriguez v. AT & T Mobility Servs. LLC, 728 F.3d 975, 979 (9th Cir. 2013)). “[I]f we can apply our precedent consistently with that of the higher authority, we must do so.” FTC v. Consumer Def., LLC, 926 F.3d 1208, 1213 (9th Cir. 2019) (emphasis added).
We hold that Plaintiffs are likely to succeed on the merits of their § 1231(a)(6) statutory claim. Although we recognize some tension between Diouf II and Jennings, we cannot conclude that the decisions are so fundamentally inconsistent that we can no longer apply Diouf II without running afoul of Jennings. We thus conclude that we remain bound by Diouf II. For that reason, we conclude further that the district court did not err in relying on Diouf II’s construction of § 1231(a)(6) to require a bond hearing before an IJ after six months of detention for an alien whose release or removal is not imminent. Because Jennings did not invalidate our constitutional due process holding in Singh, the district court also properly required the Government to bear a clear and convincing burden of proof at such a bond hearing to justify an alien’s continued detention. Our conclusion that Diouf II remains controlling compels us to reject the Government’s remaining challenges that effectively seek to relitigate Diouf II. We conclude further that the preliminary injunction complies with a proper reading of Clark. Based on these determinations, we affirm the district court’s preliminary injunction in full.
FACTUAL AND PROCEDURAL BACKGROUND
I. Statutory Framework
Various provisions of the Immigration and Nationality Act (INA) authorize the government to detain noncitizens during immigration proceedings. See 8 U.S.C. §§ 1225(b),

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1226(a), 1226(c), and 1231(a). These statutes are different textually and in their application. “[T]hese statutes apply at different stages of an alien’s detention.” Diouf v. Mukasey, 542 F.3d 1222, 1228 (9th Cir. 2008) (Diouf I). “Where an alien falls within this statutory scheme can affect whether his detention is mandatory or discretionary, as well as the kind of review process available to him if he wishes to contest the necessity of his detention.” Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008).
Section 1225(b)(1) and (b)(2) authorize the government “to detain certain aliens seeking admission into the country[.]” Jennings, 138 S. Ct. at 838. Pursuant to §§ 1226(a) and (c), the government has the authority to detain “aliens already in the country pending the outcome of removal proceedings.” Id. Section 1231(a), the detention provision at issue in this case, “authorizes the detention of aliens who have already been ordered removed from the country.” Id. at 843.
Pursuant to § 1231(a), the Attorney General “shall remove the alien from the United States within a period of 90 days” when an alien is ordered removed. 8 U.S.C. § 1231(a)(1)(A). “During the removal period, the Attorney General shall detain the alien.” 8 U.S.C. § 1231(a)(2). “If the alien does not leave or is not removed during the removal period, the alien . . . shall be subject to supervision under regulations” set by the Attorney General pending removal. Id. § 1231(a)(3). Section 1231(a)(6) further provides that “certain categories of aliens who have been ordered removed, namely, inadmissible aliens, criminal aliens, aliens who have violated their nonimmigrant status conditions, and aliens removable for certain national security or foreign relations reasons, as well as any alien ‘who has been determined by the Attorney General to be a risk to the

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community or unlikely to comply with the order of removal,’” Zadvydas, 533 U.S. at 688, “may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3),” 8 U.S.C. § 1231(a)(6) (emphasis added).
In this circuit, detention pursuant to § 1231(a)(6) “encompasses aliens . . . whose collateral challenge to [a] removal order (or a motion to reopen) is pending in the court of appeals, as well as to aliens who have exhausted all direct and collateral review of their removal orders but who, for one reason or another, have not yet been removed from the United States.” Diouf II, 634 F.3d 1085; see also Diouf I, 542 F.3d at 1230 (explaining that the removal period in § 1231(a)(1) will commence even if a stay of removal is entered while a federal court reviews an alien’s habeas petition pursuant to 28 U.S.C. § 2241 or considers a petition for review of a denial by the Board of Immigration Appeals of an alien’s motion to reopen).
The INA also authorizes the government to reinstate a prior removal order against an alien who the government believes has unlawfully reentered the United States, with the order “reinstated from its original date.” 8 U.S.C. § 1231(a)(5). Aliens with reinstated removal orders may pursue limited forms of relief from removal, including withholding of removal and protection pursuant to the Convention Against Torture. Andrade-Garcia v. Lynch, 828 F.3d 829, 831 (9th Cir. 2016). In this circuit, aliens with reinstated removal orders, including those who pursue these limited forms of relief, are treated as detained pursuant to § 1231(a)(6). Padilla-Ramirez v. Bible, 862 F.3d 881, 884– 87 (9th Cir. 2017), amended by, 882 F.3d 826, 830–33 (9th Cir. 2018).

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II. The Proceedings in this Case
Plaintiffs Aleman Gonzalez and Gutierrez Sanchez are natives and citizens of Mexico. The Government reinstated prior removal orders against them in 2017 but placed each in withholding-only removal proceedings after asylum officers determined that each has a reasonable fear of persecution or torture in Mexico. Both Plaintiffs requested a bond hearing before an IJ after 180 days in detention. Different IJs, however, denied the requests by reasoning that Jennings effectively overruled Diouf II and thus deprived the IJs of jurisdiction to conduct the bond hearing Diouf II would require. Plaintiffs filed the complaint and petition for a writ of habeas corpus on behalf of a putative class of similarly situated individuals detained in our court’s jurisdiction.
In their complaint-petition, Plaintiffs claim that the bond hearing denials violate the INA, the Administrative Procedure Act, and the U.S. Constitution’s Fifth Amendment Due Process Clause. Plaintiffs rely on Diouf II to allege that Defendants have denied them bond hearings “[d]espite clear Ninth Circuit precedent establishing the right to a bond hearing for Plaintiffs upon their detention becoming prolonged” as aliens detained pursuant to § 1231(a)(6). Plaintiffs further allege that Singh requires the Government to bear a clear and convincing evidentiary burden of proof at such a bond hearing. Alternatively, Plaintiffs claim that constitutional due process requires these protections.
Plaintiffs moved for class certification on their statutory and constitutional claims, and a preliminary injunction. The district court certified a class of § 1231(a)(6) detainees in the

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Ninth Circuit for the statutory claims only.2 The court also granted the preliminary injunction, concluding that all preliminary injunction factors weighed in Plaintiffs’ favor. The court enjoined the Government from “detaining Plaintiffs and the class members pursuant to [§] 1231(a)(6) for more than 180 days without providing each a bond hearing before an IJ as required by Diouf II.” At the Government’s request, the district court subsequently clarified that the certified class includes only individuals detained pursuant to § 1231(a)(6) who have “live claims” before an immigration court, the BIA, or a circuit court of appeals, which means defenses against their removal from the United States. The court further clarified that, pursuant to Diouf II, the preliminary injunction does not require a bond hearing for an alien whose release or removal is imminent. Diouf II, 634 F.3d at 1092 n.13. Subject to these clarifications, the Government timely appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over an appeal from the grant of a preliminary injunction pursuant to 28 U.S.C. § 1292(a)(1). We review the grant of a preliminary injunction motion for an abuse of discretion. Adidas Am., Inc. v. Skechers USA, Inc., 890 F.3d 747, 753 (9th Cir. 2018). “[A] district court abuses its discretion when it makes an error of law.” Cuviello v. City of Vallejo, 944 F.3d 816, 826 (9th Cir. 2019) (citation omitted).

2 Plaintiffs’ class certification motion excluded aliens detained pursuant to § 1231(a)(6) who are members of certified classes in litigations pending in the Central District of California and the Western District of Washington.

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ANALYSIS
“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. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Although the district court determined that all preliminary injunction factors weighed in Plaintiffs’ favor, the Government asserts only that the district court erred by concluding that Plaintiffs are likely to succeed on the merits of the statutory claims. We therefore limit our analysis to this factor.
The dispositive issue for Plaintiffs’ likelihood of success on their § 1231(a)(6) statutory claims is whether, as the Government contends, Diouf II is clearly irreconcilable with Jennings. If the Government’s contention is correct, then Diouf II cannot support the preliminary injunction the district court granted.
Familiar principles guide our consideration of the Government’s principal challenge to the preliminary injunction. In this circuit, a decision of a prior three-judge panel is controlling unless and until a superseding ruling comes from higher authority, including the Supreme Court or a panel of our court sitting en banc. Miller, 335 F.3d at 893, 899–900. “[T]he issues decided by the higher court need not be identical in order to be controlling. Rather, the relevant court of last resort must have undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.” Id. at 900. In cases of “clear irreconcilability,” we “should consider [our]selves bound by the intervening higher authority and

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reject the prior opinion of this court as having been effectively overruled.” Id.
As we have already emphasized, “[t]he ‘clearly irreconcilable’ requirement is ‘a high standard.’” Robertson, 875 F.3d at 1291 (citation omitted). “It is not enough for there to be ‘some tension’ between the intervening higher authority and prior circuit precedent, or for the intervening higher authority to ‘cast doubt’ on the prior circuit precedent.” Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir. 2012) (internal citation omitted) (quoting United States v. Orm Hieng, 679 F.3d 1131, 1140–41 (9th Cir. 2012), and United States v. Delgado-Ramos, 635 F.3d 1237, 1239 (9th Cir. 2011) (per curiam)). “In order for us to ignore existing Ninth Circuit precedent . . . the reasoning and principles of [the later authority] would need to be so fundamentally inconsistent with our prior cases that our prior cases cannot stand.” In re Gilman, 887 F.3d 956, 962 (9th Cir. 2018) (alteration in brackets added). But if we “can apply our prior circuit precedent without running afoul of the intervening authority, we must do so.” Lair, 697 F.3d at 1207 (internal quotations and citation omitted).
To set the stage for our analysis of whether Diouf II is clearly irreconcilable with Jennings, we first discuss the relevant precedents of the Supreme Court and our court construing the immigration detention statutes. We then consider the Government’s particular arguments about how, in its view, Jennings undercuts Diouf II. Finally, we address the Government’s argument that the district court improperly re-applied the canon of constitutional avoidance to § 1231(a)(6).

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I. Constructions of the Immigration Detention Statutes
A. Zadvydas v. Davis, 533 U.S. 678 (2001)
We turn first to the Supreme Court’s decision in Zadvydas v. Davis, 533 U.S. 678 (2001). Zadvydas is central to understanding our court’s application of the canon of constitutional avoidance to all the immigration detention statutes, as well as to understanding the Court’s decision in Jennings.
In Zadvydas, the Court considered a federal habeas challenge to detention pursuant to § 1231(a)(6) brought by aliens with criminal convictions whom the government had detained beyond § 1231(a)(2)’s initial 90-day mandatory detention period. 533 U.S. at 682. The question before the Court was whether, beyond the initial removal period, § 1231(a)(6) authorized indefinite detention or only detention for a period reasonably necessary to secure the alien’s removal. Id.
Invoking the canon of constitutional avoidance, the Court rejected the government’s argument that § 1231(a)(6) sets no limit on the permissible length of detention beyond the removal period. Id. at 689. The Court reasoned first that “[a] statute permitting indefinite detention of an alien would raise a serious constitutional problem” under the Fifth Amendment’s Due Process Clause given the physical liberty at issue, the potentially permanent civil confinement the statute could authorize, and the limited “procedural protections available to the alien” pursuant to 8 C.F.R. § 241.4(d)(1) (2001), pursuant to which “the alien bears the burden of proving he is not dangerous[.]” Id. at 690−92. Against the backdrop of these constitutional concerns, the Court could not find in § 1231(a)(6)’s text a “clear indication of congressional intent to grant the Attorney General the

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power to hold indefinitely an alien ordered removed.” Id. at 697. The Court explained that the statute’s use of the word “may” in the phrase “may be detained” is ambiguous and “does not necessarily suggest unlimited discretion.” Id. The Court thus “read an implicit limitation into” § 1231(a)(6), “limit[ing] an alien’s post-removal-period detention to a period reasonably necessary to bring about that alien’s removal from the United States.” Id. at 689.
Faced with the habeas petitions in that case, the Court outlined how a habeas court should apply this construction of § 1231(a)(6). Id. at 699. When removal is no longer reasonably foreseeable, § 1231(a)(6) no longer authorizes continued detention. Id. at 699−700. “In that case, . . . the alien’s release may and should be conditioned on any of the various forms of supervised release that are appropriate in the circumstances, and the alien may no doubt be returned to custody upon a violation of those conditions.” Id. at 700 (citing 8 U.S.C. §§ 1231(a)(3); 8 C.F.R. § 241.5)). “[H]av[ing] reason to believe . . .that Congress previously doubted the constitutionality of detention for more than six months,” the Court recognized six months as a presumptively reasonable length of detention “for the sake of uniform administration in the federal courts.” Id. at 701. “After this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing.” Id. The Court qualified that this “does not mean that every alien not removed must be released after six months,” but rather “an alien may be [detained] until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.” Id.

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B. This Court’s Pre-Jennings Constructions of the Immigration Detention Statutes
Although Zadvydas concerned only § 1231(a)(6), that decision led this court to “grapple[] in piece-meal fashion with whether the various immigration detention statutes may authorize indefinite or prolonged detention of detainees and, if so, may do so without providing a bond hearing.” Rodriguez v. Robbins, 804 F.3d 1060, 1077 (9th Cir. 2015) (Rodriguez III) (quoting Rodriguez v. Robbins, 715 F.3d 1127, 1134 (9th Cir. 2013) (Rodriguez II) (further quoting Rodriguez v. Hayes, 591 F.3d 1105, 1114 (9th Cir. 2010) (Rodriguez I))).3 Five decisions are relevant here.
First, in Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008), our court considered a habeas petition from a lawful permanent resident whom the government had detained for nearly seven years without providing an adequate opportunity to challenge his detention. Id. at 944. We recognized that § 1226(a)

3 Our court also identified the Court’s decision in Demore v. Kim, 538 U.S. 510 (2003), as important to our constructions of the immigration detention statutes to address the constitutional issue of prolonged detention. See Rodriguez III, 804 F.3d at 1077. Demore, however, is the earliest example of the Court’s rejection of our court’s reliance on Zadvydas to construe the other immigration detention statutes. We had construed § 1226(c) to require the government to provide a bail hearing with reasonable promptness to determine whether the alien was a flight risk or a danger to the community. Kim v. Ziglar, 276 F.3d 523, 539 (9th Cir. 2002). Foreshadowing its reasoning in Jennings, the Court rejected that construction by distinguishing Zadvydas’s focus on § 1231(a)(6) as “materially different” from § 1226(c), noting that whereas the statute at issue in Zadvydas involved “‘indefinite’ and ‘potentially permanent’ detention,” § 1226(c) involved detention “of a much shorter duration” with a “definite termination point.” Demore, 538 U.S. at 527–29.

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authorized the government to detain Casas-Castrillon because he remained capable of being removed, id. at 948−49, but we also recognized that Casas-Castrillon’s nearly seven-year detention posed a “constitutional question,” id. at 950. We declined to resolve that question because we could “find no evidence that Congress intended to authorize the long-term detention of aliens such as Casas[Castrillon] without providing them access to a bond hearing before an immigration judge.” Id.
Relying on an earlier decision of our court that applied the canon of constitutional avoidance to § 1226(c), we determined that prolonged detention under § 1226(a) is “permissible only where the Attorney General finds such detention individually necessary by providing the alien with an adequate opportunity to contest the necessity of his detention.” Id. at 951 (relying on Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005)).4 We recognized that “[§] 1226(a), unlike § 1226(c), provides such authority for the Attorney General to conduct a bond hearing and release the alien on bond or detain him if necessary to secure his presence at removal.” Id. We held that “§ 1226(a) must be construed as requiring the Attorney General to provide the alien with such a hearing” given the constitutional

4 In Tijani, our court addressed the government’s detention of an alien for two years and eight months pursuant to § 1226(c). 430 F.3d at 1242. We invoked Zadvydas to question the permissibility of a congressional statute authorizing detention “of this duration for lawfully admitted resident aliens who are subject to removal.” Id. (citing Zadvydas, 533 U.S. at 690). We distinguished Demore as a case “where the alien conceded deportability,” and then proceeded to apply the canon of constitutional avoidance to construe § 1226(c) to conditionally grant habeas relief unless the government provided the alien with a bond hearing before an IJ where the government bore the burden of justifying continued detention. Id.

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doubtfulness of prolonged detention without an individualized determination of dangerousness or flight risk. Id. (citing Tijani, 430 F.3d at 1242) (emphasis in original). “Thus an alien is entitled to be released on bond unless the ‘government establishes that he is a flight risk or will be a danger to the community.’” Id. (quoting Tijani, 430 F.3d at 1242).
Second, in Diouf II, we reversed a district court’s denial of a preliminary injunction that would have required individualized bond hearings pursuant to § 1231(a)(6). 634 F.3d at 1084. We “extend[ed] Casas-Castrillon” to § 1231(a)(6), id. at 1086, such that “individuals detained [there]under . . . are entitled to the same procedural safeguards against prolonged detention as individuals detained under § 1226(a),” id. at 1084. We determined that “prolonged detention under § 1231(a)(6), without adequate procedural safeguards, would raise ‘serious constitutional concerns.’” Id. at 1086 (quoting Casas-Castrillon, 535 F.3d at 950). We thus “appl[ied] the canon . . . and construe[d] § 1231(a)(6) as requiring an individualized bond hearing, before an immigration judge, for aliens facing prolonged detention under that provision.” Id. (quoting CasasCastrillon, 535 F.3d at 951). We held further that “[s]uch aliens are entitled to release on bond unless the government establishes that the alien is a flight risk or will be a danger to the community.” Id.
In justifying this application of the canon to § 1231(a)(6) to require a bond hearing, we rejected the government’s argument that § 1231(a)(6)’s text does not expressly provide for release on bond as does § 1226(a)’s text. We underscored that we had already construed § 1231(a)(6) to authorize release on bond and acknowledged that the government’s own regulations permitted release on bond for

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aliens detained pursuant to the provision. Id. at 1089 (citing Diouf I, 542 F.3d at 1234; 8 C.F.R. § 241.5(b)).
We also rejected the government’s argument that the regulations it modified in the wake of the Court’s construction of § 1231(a)(6) in Zadvydas provided sufficient safeguards to protect the liberty interests of § 1231(a)(6) detainees. Id. at 1089 & n.10. We found “serious constitutional concerns” with the government’s 180-day review process (i.e., detention lasting six months) because the regulations “do not provide for an in-person hearing, they place the burden on the alien rather than the government and they do not provide for a decision by a neutral arbiter such as an immigration judge.” Id. at 1091. In the context of this discussion, we explained for the first time that “[a]s a general matter, detention is prolonged when it has lasted six months and is expected to continue more than minimally beyond six months.” Id. at 1092 n.13; see also Rodriguez III, 804 F.3d at 1069 (“In Diouf II, we also adopted a definition of ‘prolonged’ detention . . . for purposes of administering the Casas[-Castrillon] bond hearing requirement.” (citing Diouf II, 634 F.3d at 1092 n.13)). Alluding to Zadvydas, we explained that the “private interests at stake are profound” at six months of detention, such that “a hearing before an immigration judge is a basic safeguard for aliens facing prolonged detention under § 1231(a)(6).” Diouf II, 634 F.3d at 1091–92.
Third, and not long after Diouf II, we explained in Singh that “given the substantial liberty interests at stake,” 638 F.3d at 1200, due process requires the government to prove “by clear and convincing evidence that an alien is a flight risk or a danger to the community to justify the denial of bond,” id. at 1203–04. Although Singh concerned a bond hearing requirement that our court construed § 1226(a) as

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requiring in Casas-Castrillon, Singh was not a statutory construction decision. Instead, we drew from the Supreme Court’s constitutional procedural due process jurisprudence “plac[ing] a heightened burden of proof on the State in civil proceedings in which the ‘individual liberty interests at stake . . . are both particularly important and more substantial than mere loss of money.’” Id. at 1204 (quoting Cooper v. Oklahoma, 517 U.S. 348, 363 (1996), and citing Foucha v. Louisiana, 504 U.S. 71, 80 (1992); Woodby v. INS, 385 U.S. 276, 285 (1966); Chaunt v. United States, 364 U.S. 350, 353 (1960)).
Fourth, in Rodriguez II, we affirmed a district court’s preliminary injunction that required the government to provide individualized bond hearings before an IJ to class members detained pursuant to §§ 1225(b) and 1226(c). Rodriguez II, 715 F.3d at 1130–31. To avoid the constitutional concerns posed by prolonged detention, we held that “§ 1226(c)’s mandatory language must be construed ‘to contain an implicit ‘reasonable time’ limitation, . . . subject to federal court review.’” Id. at 1138 (quoting Zadvydas, 533 U.S. at 682). After the expiration of that implicit time limitation, the government’s authority to detain class members would shift to § 1226(a). Id. (citing Casas-Castrillon, 535 F.3d at 948). Relying on Diouf II’s definition of prolonged detention, we held that “subclass members who have been detained under § 1226(c) for six months are entitled to a bond hearing[.]” Id. (citing Diouf II, 634 F.3d at 1092 n.13). We acknowledged the government’s argument there that “Diouf II by its terms addressed detention under § 1231(a)(6), not § 1226(c) or § 1225(b),” but we thought the conclusion “that detention always becomes prolonged at six months” was “consistent with the reasoning of Zadvydas, Demore, Casas[-Castrillon], and Diouf II[.]” Id. at 1039. Finding “no basis” to distinguish

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§ 1225(b) from § 1226(c), we also held that any mandatory detention pursuant to § 1225(b) was “implicitly timelimited” to six months, after which the government’s authority shifted to § 1226(a). Id. at 1143–44. The § 1225(b) subclass would thus be entitled to a bond hearing in accordance with Casas-Castrillon’s construction of § 1226(a). Id. (citing Casas-Castrillon, 535 F.3d at 948). Singh’s strictures would apply to the §§ 1225(b) and 1226(c) subclasses. Id. at 1139, 1144.
Finally, Rodriguez III—the decision at issue in Jenningslargely distilled the holdings of our decisions construing the immigration detention statutes into a single decision. There, we considered a grant of summary judgment and corresponding permanent injunction for a class of noncitizens who challenged their prolonged detention pursuant to §§ 1225(b), 1226(a), 1226(c), and 1231(a) without individualized bond hearings to justify continued detention. Rodriguez III, 804 F.3d at 1065. We reversed the judgment and injunction insofar as they concerned noncitizens detained pursuant to § 1231(a), explaining that the class was defined as non-citizens “detained ‘pending completion of removal proceedings, including judicial review.’” Id. at 1086. We explained that a removal order could not be administratively final for any class members, and thus “[s]imply put, the § 1231(a) subclass does not exist.” Id. We otherwise affirmed the judgment and injunction.
In Rodriguez III, we concluded that “the canon of constitutional avoidance requires us to construe the statutory scheme to provide all class members who are in prolonged detention with bond hearings at which the government bears the burden of proving by clear and convincing evidence that the class member is a danger to the community or a flight

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risk.” Id. at 1074. For the §§ 1225(b) and 1226(c) subclasses, we reiterated our application of the canon in Rodriguez II to construe the provisions as containing an implicit six-month time limitation, after which the government’s detention authority shifted to § 1226(a), thereby entitling detainees to a bond hearing in accordance with Casas-Castrillon. Id. at 1079−81 (discussing § 1226(c)), id. at 1081−84 (discussing § 1225(b)). We affirmed the injunction for the § 1226(a) subclass as “squarely controlled by our precedents,” pointing principally to Casas-Castrillon. Id. at 1085. Such class members were “entitled to automatic bond hearings after six months of detention.” Id.
We also addressed procedural protections for the statutory bond hearings we construed § 1226(a) as requiring, and to which all class members were entitled based on our constructions of the immigration statutes at issue. Relying on Singh, we affirmed the requirement that the government justify continued detention by clear and convincing evidence. Id. at 1087. We also determined, for the first time, that “the government must provide periodic bond hearings every six months” after an initial bond hearing “so that noncitizens may challenge their continued detention as ‘the period of . . . confinement grows.’” Id. at 1089 (quoting Diouf II, 634 F.3d at 1091, which in turn quoted Zadvydas, 533 U.S. at 701). The government petitioned for a writ of certiorari, which the Supreme Court granted. Jennings v. Rodriguez, 136 S. Ct. 2489 (2016).
C. Jennings v. Rodriguez, 138 S. Ct. 830 (2018)
Our court’s constructions of §§ 1225(b), 1226(a), and 1226(c) were sharply criticized in Jennings. In the Court’s opinion, we had “adopted implausible constructions of the

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three immigration provisions at issue” to hold “that detained aliens have a statutory right to periodic bond hearings under the provisions at issue.” 138 S. Ct. at 836. As the Court explained, “[t]he canon of constitutional avoidance ‘comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.’” Id. at 842 (quoting Clark, 543 U.S. at 385). The Court found no textual basis for our construction of those statutory provisions.
The Court began with §§ 1225(b)(1) and (b)(2). Observing that both provisions provide that an alien “shall be detained,” id. at 837, 842, the Court explained that “[r]ead most naturally, [the statutes] mandate detention of applicants for admission until certain proceedings have concluded,” id. at 842. The Court determined that “[d]espite the clear language,” our court read an implicit six-month time limitation regarding the length of detention into them. Id. The Court rejected our reading because the provisions’ text did not “hint[] that those provisions restrict detention after six months.” Id. at 843. The Court explained that “[s]potting a constitutional issue does not give a court the authority to rewrite a statute as it pleases,” but instead “the canon permits a court to ‘choos[e] between competing plausible interpretations of a statutory text.’” Id. (quoting Clark, 543 U.S. at 381) (emphasis in original).
The Court also rejected our reliance on Zadvydas “to graft a time limit onto the text of § 1225(b).” Id. The Court explained that “Zadvydas concerned § 1231(a)(6),” a different provision “authoriz[ing] the detention of aliens who have already been ordered removed from the country.” Id. The Court explained that Zadvydas construed § 1231(a)(6) to mean that an alien who is ordered removed may not be detained beyond a period reasonably necessary

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to secure his removal, with six months as the presumptively reasonable period. Id. According to the Court, Zadvydas “justified this interpretation by invoking the constitutionalavoidance canon” to “detect[] ambiguity in the statutory phrase ‘may be detained.’” Id. (emphasis in original). Characterizing Zadvydas as “a notably generous application of the constitutional-avoidance canon,” the Court determined that we “went much further” in construing §§ 1225(b)(1) and (b)(2). Id.
The Court explained that we “failed to address whether Zadvydas’s reasoning may fairly be applied in this case despite the many ways in which the provision in question in Zadvydas, § 1231(a)(6), differs materially from those at issue here, §§ 1225(b)(1) and (b)(2).” Id. For one, unlike § 1231(a)(6), the provisions “provide for detention for a specified period of time.” Id. at 844. Thus, detention under these statutes could not be indefinite like detention under § 1231(a)(6) could be without a limiting construction. Second, whereas § 1231(a)(6) uses the word “may,” §§ 1225(b)(1) and (b)(2) use the phrase “shall.” Id. Thus, the latter provisions are clearly mandatory, whereas § 1231(a)(6) is not. Finally, the Court found Zadvydas “particularly inapt” because Congress authorized the Attorney General to release aliens detained pursuant to §§ 1225(b)(1) and (b)(2) for urgent humanitarian reasons or a significant public benefit. Id. (citing 8 U.S.C. § 1182(d)(5)(A)). By “negative implication,” the Court read this to exclude any other manner of release and to “preclude[] the sort of implicit time limit on detention that we found in Zadvydas.” Id.
The Court deemed § 1226(c)’s language “even clearer.” Id. at 846. The Court determined that § 1226(c) is not silent on the length of permissible detention because it mandates

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detention of certain aliens pending removal proceedings. Id. The Court further determined that, pursuant to § 1226(c)’s terms, the Attorney General “may release” an alien detained pursuant to that provision “‘only if the Attorney General decides’ both that doing so is necessary for witnessprotection purposes and that the alien will not pose a danger or flight risk.” Id. (quoting 8 U.S.C. § 1226(c)(2)) (emphasis in original). Thus, the Court read this text to mean “aliens detained under its authority are not entitled to be released under any circumstances other than those expressly recognized by the statute.” Id.
Turning to § 1226(a), the Court rejected our court’s imposition of “procedural protections that go well beyond the initial bond hearing established by existing regulationsnamely, periodic bond hearings every six months in which the Attorney General must prove by clear and convincing evidence that the alien’s continued detention is necessary.” Id. at 847. According to the Court, “[n]othing in § 1226(a)’s text—which says only that the Attorney General ‘may release’ the alien ‘on . . . bond’—even remotely supports the imposition of either of those requirements.” Id.5 The Court ultimately remanded for consideration of the plaintiffs’ constitutional due process challenges to the statutes at issue. Id. at 851.

5 Jennings also rejected “layer[ing]” onto § 1226(a) a procedural requirement that would require an IJ to consider “the length of detention prior to a bond hearing . . . in determining whether the alien should be released.” 138 S. Ct. at 848. Neither Diouf II, nor the district court’s preliminary injunction require this. Thus, this aspect of Jennings is inapposite to this appeal.

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Jennings clearly invalidated aspects of our court’s prior constructions of §§ 1225(b), 1226(a), and 1226(c). About this, we have no doubt. See Rodriguez v. Marin, 909 F.3d 252, 255 (9th Cir. 2018) (“In Jennings[], the Supreme Court held that we misapplied the canon of constitutional avoidance to hold that certain immigration detention statutes, namely 8 U.S.C. §§ 1225(b), 1226(a), and 1226(c), implicitly contain a reasonableness determination after which due process concerns require that persons in prolonged mandatory detention are entitled to individualized bond hearings and possibly, conditional release.”). But this appeal requires us to determine the impact of Jennings on Diouf II’s construction of § 1231(a)(6), if any.
II. Diouf II Is Not Clearly Irreconcilable with Jennings
Implicitly acknowledging that Jennings did not concern our construction of § 1231(a)(6), the Government urges us to conclude that Jennings has invalidated Diouf II and therefore to conclude further that we are no longer bound by Diouf II. See Miller, 335 F.3d at 893.
The scope of our inquiry into whether Diouf II is clearly irreconcilable with Jennings is limited. This inquiry does not call upon us to opine on whether Diouf II reached the right result, nor to determine whether we would construe § 1231(a)(6) differently. See Close v. Sotheby’s, Inc., 894 F.3d 1061, 1073–74 (9th Cir. 2018) (“[T]he fact that we might decide a case differently than a prior panel is not sufficient grounds for deeming the [prior] case overruled.”). Instead, we must determine whether the Government’s arguments satisfy the “high standard” of clear irreconcilability that governs in this circuit. Robertson, 875 F.3d at 1291. “[I]f we can apply our precedent consistently with that of the higher authority, we must do so.” FTC, 926 F.3d at 1213 (emphasis added). “Nothing

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short of ‘clear irreconcilability’ will do.” Close, 894 F.3d at 1073.
The Government advances three overlapping arguments to persuade us that Jennings effectively overruled Diouf II. First, the Government argues that Diouf II’s application of the canon of constitutional avoidance to § 1231(a)(6) contravenes Jennings’s mode of applying the canon to the other immigration detention statutes. Second, the Government argues that Jennings’s rejection of construing § 1226(a) to require certain procedural protections forecloses Diouf II’s construction of § 1231(a)(6). Third, the Government argues that Diouf II is no longer good law because Jennings reversed a decision of our court that applied Casas-Castrillon’s construction of § 1226(a), a decision on which Diouf II relied.
We consider and ultimately reject each of the Government’s arguments. Although we recognize some tension between Diouf II and Jennings, the Government has not persuaded us that Diouf II is “so fundamentally inconsistent with” Jennings that we may overrule Diouf II now. In re Gilman, 887 F.3d at 962. Apart from rejecting the Government’s arguments, we find additional support for the conclusion that Diouf II is not clearly irreconcilable with Jennings in the Third Circuit’s decision in GuerreroSanchez v. Warden York County Prison, 905 F.3d 208 (3d Cir. 2018), which expressly adopted Diouf II’s construction of § 1231(a)(6) in the wake of Jennings.
A. Diouf II’s Application of the Canon of Constitutional Avoidance
The Government’s core contention is that Diouf II’s application of the canon of constitutional avoidance to § 1231(a)(6) runs afoul of Jennings. We understand this

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argument to concern two points specific to Diouf II’s interpretation of § 1231(a)(6). First, the Government argues that Jennings abrogated our application of the canon of constitutional avoidance to § 1231(a)(6) in Diouf II. Second, the Government contends that Jennings overrides the conclusion that § 1231(a)(6) may be construed to authorize release on bond and thus Diouf II’s application of the canon to construe § 1231(a)(6) as requiring a bond hearing cannot stand after Jennings.6
In defense of Diouf II, Plaintiffs argue that in Jennings, the Court “explicitly reaffirmed its prior holding in Zadvydas that [§] 1231(a)(6) is amenable to the canon of constitutional avoidance.” Although we agree that Zadvydas plays an important role in our analysis given Jennings’s discussion of that decision, we do not think that the clear irreconcilability analysis here is as simple as Plaintiffs posit. The Government does not challenge whether the canon may be applied to § 1231(a)(6) at all, but rather contends that Jennings shows that Diouf II improperly applied the canon to construe § 1231(a)(6) as requiring a bond hearing. As Plaintiffs recognize, Zadvydas did not construe § 1231(a)(6) in this manner. Thus, we must consider the distinct question of whether Diouf II’s particular application of the canon runs afoul of Jennings.

6 We distinguish these arguments from the related, yet distinct issue of whether Diouf II properly construed § 1231(a)(6) to require a bond hearing after six months of detention. We consider that issue in our analysis of the Government’s argument regarding Jennings’s rejection of our court’s construction of § 1226(a) to require “periodic bond hearings” after six months of detention, beyond the bond hearing that the government’s regulations already provided at the outset of detention for an alien detained pursuant to the government’s § 1226(a) detention authority.

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The Government tells us that Diouf II’s application of the canon runs afoul of Jennings because, in the Government’s view, Diouf II merely spotted a constitutional issue regarding prolonged detention that it solved by applying the canon to “insert” a bond hearing requirement into § 1231(a)(6). Pointing to the Court’s rejection in Jennings of our application of the canon to the other immigration detention statutes, the Government invites us to reject Diouf II’s construction of § 1231(a)(6) as erroneously requiring “the very same relief that the Supreme Court found inconsistent with three distinct immigration statutes.”
Although we acknowledge the superficial appeal of the Government’s suggestion, it carries little weight for us in our clear irreconcilability analysis. As a general matter, “we ‘must be careful not to apply the rules applicable under one statute to a different statute without careful and critical examination.’” Murray v. Mayo Clinic, 934 F.3d 1101, 1106 (9th Cir. 2019) (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 174 (2009)). That admonition carries force here. In no fewer than ten instances, the Court expressly qualified in Jennings that it rejected our application of the canon to the statutory provisions “at issue” there. Jennings, 138 S. Ct. at 836, 839, 842, 843, 844, 850, 851. The Court’s repeated use of that limiting language strongly suggests that we should not read the Court’s rejection of our application of the canon to the other immigration detention statutes as alone undercutting Diouf II’s application of the canon to § 1231(a)(6). As we discuss in Part II.B.3, this conclusion is inescapable given the material textual differences between § 1231(a)(6) and the other immigration detention statutes, a point that the Court underscored throughout its analysis in Jennings.

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Our dissenting colleague takes issue with our observation that Jennings repeatedly qualified that its focus was on the statutory provisions at issue there, namely §§ 1225(b), 1226(a), and 1226(c). The dissent contends that Jennings’s repeated and express limitations do not deprive that decision “of all persuasive force” in the clear irreconcilability inquiry presented here. Dissent at 61 n.2. (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 351 (2013)). Drawing on the recent decision in Murray v. Mayo Clinic, 934 F.3d 1101 (9th Cir. 2019), in which a three-judge panel of our court concluded that an earlier circuit precedent was clearly irreconcilable with two intervening Supreme Court decisions, the dissent argues “that Jennings and Diouf II analyzed different statutes is not dispositive of their irreconcilability.” Dissent at 62 n.2. We do not understand this critique.7 We have not described

7 We similarly do not understand the dissent’s reliance on Murray’s clear irreconcilability analysis. Murray addressed the continued viability of our court’s holding in Head v. Glacier Northwest, Inc, 413 F.3d 1053 (9th Cir. 2005) that Title I of the Americans with Disabilities Act (ADA) requires only a showing that disability was a motivating factor to prove a violation. The relevant statutory provision prohibited discrimination “on the basis of disability.” 42 U.S.C. § 12112(a). After Head, the Court interpreted the phrase discrimination “because of such an individual’s age” in the Age Discrimination in Employment Act (ADEA) to require but-for causation and rejected a motivating factor analysis. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009). The Court subsequently held that the phrase “because of” in Title VII’s anti-retaliation provision also requires but-for causation, again rejecting the motivating factor standard. Nassar, 570 U.S. at 351–53. The Murray panel determined that Head is clearly irreconcilable with Gross and Nassar’s interpretation of similar statutory text and held that Title I requires but-for causation as well. Murray, 934 F.3d at 1106 (“Under Gross, the phrase ‘on the basis of disability’ indicates but-for causation.”); id. (reasoning that Nassar, 570 U.S. at 350, explains that Gross’s holding that “because of,” “by reason of,” “on account of,” and “based on” all indicate a but-for causal relationship). Contrary to the dissent’s suggestion, this case is not

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Jennings’s repeated qualifications regarding its limited focus on the statutory provisions at issue there as dispositive of the clear irreconcilability analysis. Instead, our observation leads us to reject the Government’s simplistic argument that the mere fact that Jennings invalidated our court’s application of the canon to other immigration detention statutes alone gives us license to overrule Diouf II. See Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2018) (amended opinion) (concluding that the Supreme Court’s “express limitation on its holding” in the intervening decision did not render the prior circuit decision clearly irreconcilable with the intervening decision). More critically, as we explain in Part II.B.3, it is the material textual differences amongst the immigration detention statutes that Jennings expressly and repeatedly recognized that give Jennings’s treatment of the other statutory provisions little weight in our clear irreconcilability analysis.
Focusing squarely on Diouf II, the Government argues more narrowly that § 1231(a)(6) cannot be construed to require an individualized bond hearing because the provision does not expressly use the word “bond.” The government raised this very argument in Diouf II. 634 F.3d at 1089. But now relying on Jennings, the Government contends that Diouf II runs afoul of Jennings’s admonition that “[s]potting a constitutional issue does not give a court the authority to rewrite a statute as it pleases.” 138 S. Ct. at 843.

Murray. Unlike the provisions discussed there, we are not confronted with nominal and immaterial differences between the provisions at issue in Jennings and § 1231(a)(6). In reining in our court’s reliance on Zadvydas and the canon to construe the immigration detention statutes at issue in Jennings, the Court made it eminently clear that the textual differences amongst the statutes are material. See Jennings, 138 S. Ct. at 843.

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This argument is not without some appeal. The Government points us only to Part III of Diouf II. In a single paragraph, our court identified constitutional concerns with “prolonged detention under § 1231(a)(6), without adequate procedural protections[.]” Diouf II, 634 F.3d at 1086. “To address those concerns,” we “appl[ied] the canon of constitutional avoidance and construe[d] § 1231(a)(6) as requiring an individualized bond hearing, before an immigration judge, for aliens facing prolonged detention under that provision.” Id. (citing Casas-Castrillon, 535 F.3d at 951). This portion of Diouf II contained no analysis regarding the canon’s application to § 1231(a)(6)’s text. We also recognized elsewhere in Diouf II that § 1231(a)(6) does not explicitly use the word “bond.” Id. at 1089. These aspects of Diouf II give us pause in light of Jennings, but only briefly.
In Diouf II, we recognized that the canon is a tool of statutory construction that applies when an act of Congress raises a serious constitutional doubt. Diouf II, 634 F.3d at 1086 n.7. And we recognized that a federal court utilizes the canon to “‘decid[e] which of two plausible statutory constructions to adopt[.]’” Id. at 1088 (quoting Clark, 543 U.S. at 380−81). Contrary to the Government’s contention that Diouf II did not grapple with § 1231(a)(6)’s text to justify its application of the canon, Diouf II did so. Section 1231(a)(6) provides that “if released” from detention beyond the removal period, an alien “shall be subject to the terms of supervision in [§ 1231(a)](3).” 8 U.S.C. § 1231(a)(6). In Diouf II, although we recognized that § 1231(a)(6) does not use the word “bond,” we “ha[d] no doubt that bond is also authorized under §1231(a)(6), as we have held and as Department of Homeland Security (DHS) regulations acknowledge.” 634 F.3d at 1089. (citing Diouf

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I, 542 F.3d at 1234; 8 C.F.R. § 241.5(b)) (emphasis added).8 We fail to see how Jennings undercuts this articulation and application of the canon.

Jennings “expressly looked” to the same underlying principles and applied the canon “consistent with th[ose] principles[.]” Lair, 697 F.3d at 1207. Jennings first affirmed that the canon applies “[w]hen ‘a serious doubt’ is raised about the constitutionality of an act of Congress,” pursuant to which “‘. . . this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.’” Jennings, 138 S. Ct. at 842 (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)). Jennings then reiterated that “the canon permits a court ‘to choos[e] between competing plausible interpretations of a statutory text.’” Id. at 843 (quoting Clark, 543 U.S. at 381) (emphasis in original omitted). Jennings reiterated what the Court had already said about the canon in several cases decided long before our Diouf II decision. See United States v. Locke, 471 U.S. 84, 96 (1985) (“We cannot press statutory construction ‘to the point of disingenuous evasion’ even to avoid a constitutional question.”) (quoting George Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933)); see also Clark, 543 U.S. at 381, 385; United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483, 494 (2001).

The Government and the dissent conspicuously ignore that Diouf II articulated and relied on the same principles governing application of the canon as Jennings. We have

8 8 C.F.R. § 241.5 is a regulation that applies to aliens who the government releases from § 1231(a)(6) detention. The regulation provides that an officer may require the posting of a bond to ensure an alien complies with the conditions of a supervision order. Id. As Plaintiffs acknowledge, this regulation remains in effect.

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explained, however, that when an intervening decision from a higher authority does not “change the state of the law,” but instead “clarifie[s] and reinforce[s]” law that existed at the time of the prior circuit decision, it is unlikely to satisfy the Miller standard. Lair, 697 F.3d at 1207; see also Nat’l Fed’n of the Blind v. United Airlines, Inc., 813 F.3d 718, 728 (9th Cir. 2016) (reasoning in part that a prior circuit decision was “not so ‘clearly irreconcilable’” with an intervening Supreme Court decision because the intervening decision did not “represent a significant shift” in the relevant jurisprudence). The dissent identifies nothing new in Jennings regarding the canon’s application that Diouf II failed to articulate in applying the canon.9 As our analysis shows, Jennings did not do so but rather engaged in statutory-specific applications of the canon. We thus reject the argument that Diouf II’s application of the canon to § 1231(a)(6) is clearly irreconcilable with Jennings’s mode of applying the canon.10

9 Our court did not decide Diouf II in a statutory vacuum. Rather, that decision’s construction of § 1231(a)(6) followed Zadvydas, which identified ambiguity in § 1231(a)(6)’s text regarding the government’s authority to detain an alien, and two earlier circuit precedents which construed § 1231(a)(6) to authorize release on bond. Diouf I, 542 F.3d at 1234; Doan v. I.N.S., 311 F.3d 1160 (9th Cir. 2002). Diouf II relied on these decisions to apply the canon. See Diouf II, 634 F.3d at 1087– 88, 1091–92 & nn.10–13 (referring to Zadvydas on multiple occasions in the context of applying the canon); id. at 1089 (referring to Diouf I, which in turn relied on Doan).
10 For the first time, in its reply brief, the Government argues that Jennings established a framework that “obligated” the district court to look first to “Zadvydas’s construction of § 1231(a)” and then to consider Diouf II’s application of the canon of constitutional avoidance to determine whether Diouf II comported with Zadvydas. We do not normally consider arguments raised for the first time in a reply brief. See

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We also reject the Government’s contention that Jennings overrides our court’s conclusion that § 1231(a)(6) authorizes release on bond—a conclusion central to Diouf II’s application of the canon to the statute. Diouf II’s construction of § 1231(a)(6) to require a bond hearing plainly followed from two of our decisions that construed the statute to encompass bond as a condition of release from detention that the statute authorizes.
We first construed § 1231(a)(6) to allow an alien’s release on bond in Doan v. I.N.S., 311 F.3d 1160 (9th Cir. 2002), a case we decided shortly after Zadvydas. There, we observed that §§ 1231(a)(3) and 1231(a)(6) authorize an alien’s release from detention on terms of supervision. We determined that “a bond is well within the kinds of conditions contemplated by the Supreme Court in Zadvydas, where the Court observed that 8 C.F.R. § 241.5 establishes conditions of release.” Id. at 1161 (citing Zadvydas, 533 U.S. at 688–89, 695–96). Pursuant to that regulation, the government had required an alien to post bond as a condition of release. Id. Thus, we rejected the alien’s “contention that because a bond is not expressly listed as a condition in the statute, imposition of any bond as a condition of release is unlawful.” Id. at 1162. Building on Doan, in Diouf I, we rejected the government’s argument that “Diouf was statutorily ineligible for release on bond” as an alien detained pursuant to § 1231(a)(6) because “[w]e have specifically construed § 1231(a)(6) to permit release on

Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). Nevertheless, even considering the argument, we readily reject it for the simple reason that the Government reads into Jennings a “framework” that the Court neither articulated, nor even hinted at.

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bond.” Diouf I, 542 F.3d at 1234 (citing Doan, 311 F.3d at 1160).
Relying on these earlier precedents, Diouf II applied the canon of constitutional avoidance to construe § 1231(a)(6) not only as authorizing release on bond, but as requiring a bond hearing in light of the constitutional issue of prolonged detention. The Government does not acknowledge our decisions construing § 1231(a)(6)’s allowance for release to encompass release on bond, nor does the Government acknowledge Diouf II’s reliance on them. Diouf II, 634 F.3d at 1089 (citing Diouf I, 542 F.3d at 1234; 8 C.F.R. § 241.5(b)). Were we to accept the Government’s argument that § 1231(a)(6) does not even authorize release on bond, we would have to abrogate not only Diouf II, but also Doan and Diouf I, on which Diouf II’s analysis of § 1231(a)(6) rested.11 But neither Doan nor Diouf I relied on the canon to construe § 1231(a)(6), and thus Jennings does not undercut either of them. We otherwise see nothing in either decision that is clearly irreconcilable with Jennings and therefore we are not free to overrule them. Miller, 335 F.3d

11 The dissent sees “no ineluctable reason” why we would need to overrule these precedents to accept the Government’s argument, Dissent at 65 n.12, and explains them away as merely concerned with the government’s authority to release an alien on bond to arrive at the conclusion that Diouf II failed to identify a plausible basis in § 1231(a)(6)’s text for a bond hearing requirement, id. at 63–66. We do not understand this reasoning. Whether a statute authorizes release on bond is the necessary predicate to whether that statute can be construed to require such release pursuant to a bond hearing. Ignoring these commonsense propositions, the dissent elides Diouf II’s application of the canon to construe § 1231(a)(6) not only to provide for a bond hearing, but as requiring a bond hearing after six months of detention to avoid the constitutional problem of prolonged detention.

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at 893. Because Jennings does not affect these decisions, we reject the Government’s first set of arguments.
B. Jennings’s Rejection of Construing § 1226(a) to Require Certain Procedural Protections Does Not Undercut Diouf II
Jennings rejected, in relevant part, the addition of two procedural protections onto § 1226(a): (1) “periodic bond hearings every six months,” (2) “in which the Attorney General must prove by clear and convincing evidence that the alien’s continued detention is necessary[.]” Id. at 847– 48. The Government contends that § 1231(a)(6)’s “operative language directly mirrors” § 1226(a) because both provisions provide that the government may detain an alien, and thus Jennings forecloses construing § 1231(a)(6) to require these protections as well. More sweepingly, the Government suggests that Jennings rejected construing § 1226(a) to require a bond hearing at all, thereby also undercutting Diouf II’s construction of § 1231(a)(6) to require a bond hearing. We dispose readily of two of the Government’s arguments, and then turn to the issue of “periodic bond hearings.”
1. Jennings Does Not Invalidate Singh’s Constitutional Due Process Burden of Proof Holding
We reject first the Government’s reliance on Jennings’s rejection of construing § 1226(a) to require the government to justify an alien’s continued detention by clear and convincing evidence. Although Jennings undoubtedly rejected construing the statute to require such a burden, that rejection is inapposite here.

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Contrary to the Government’s suggestion, Diouf II did not construe § 1231(a)(6) to impose such a burden, nor did we premise our determination that the government must meet such a burden on construing any of the immigration detention statutes. In Singh, we explained that, “[n]either Casas-Castrillon, nor any other Ninth Circuit, statutory or regulatory authority specifies the appropriate standard of proof at a Casas[-Castrillon] bond hearing.” 638 F.3d at 1203 (emphasis added). Rather than construe any statute, we determined that constitutional procedural due process required the government to meet the clear and convincing burden of proof standard. Singh, 638 F.3d at 1203–04; see also Kashem v. Barr, 941 F.3d 358, 380 (9th Cir. 2019) (acknowledging Singh’s clear and convincing evidence burden as a procedural due process standard “which applies in a range of civil proceedings involving substantial deprivations of liberty.”). Rodriguez III, in turn, relied on Singh to affirm a clear and convincing burden of proof for bond hearings held pursuant to our constructions of the immigration detention statutes. Rodriguez III, 804 F.3d at 1087. Thus, Jennings’s rejection of layering such a burden onto § 1226(a) as a matter of statutory construction cannot undercut Diouf II, nor undercut our constitutional due process holding in Singh.
2. Jennings Did Not Reject Reading § 1226(a) to Authorize a Bond Hearing
Second, we reject the Government’s reading of Jennings as foreclosing construction of § 1226(a) to authorize a bond hearing at all. Rather than focus on the Court’s § 1226(a) analysis, the Government misdirects us to the Court’s observation that “neither §1225(b)(1) nor §1225(b)(2) says anything whatsoever about bond hearings.” Jennings,

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138 S. Ct. at 842. The Court, however said no such thing about § 1226(a).
Section 1226(a) provides that the Attorney General “may release” an alien detained pursuant to that provision “on bond” or “on conditional parole.” 8 U.S.C. § 1226(a)(2)(A), (B). The Court expressly acknowledged that “[f]ederal regulations provide that aliens detained under § 1226(a) receive bond hearings at the outset of detention.” Jennings, 138 S. Ct. at 847 (citing 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1)). Section 1226(a) does not use the word “hearing.” The Court, however, did not suggest that the regulations’ provision of those bond hearings was somehow at odds with the government’s § 1226(a) detention authority pursuant to the statutory text.12 Instead, the Court took issue with our court’s imposition of “procedural protections that go well beyond the initial bond hearing established by existing regulations” for aliens detained pursuant to § 1226(a). Id. (emphasis added). The Court’s rejection of our court’s imposition of a six-month bond hearing requirement for aliens detained pursuant to § 1226(a) beyond the regulations’ provision of a single bond hearing at the outset of detention is not the same as rejecting a construction of § 1226(a) to authorize or require bond hearings at all. Thus, we cannot agree with one of the

12 Like the Government, the dissent focuses on the absence of the word “hearing” in § 1231(a)(6). Dissent at 65. In doing so, the dissent ignores the absence of that word in § 1226(a), and Jennings’s analysis regarding that provision. Tellingly, there is nothing in Jennings that rejects reading § 1226(a) to require a bond hearing at all, as opposed to our erroneous reading of that provision to require a bond hearing at a particular point in time. As we explain in Part II.B.3, Jennings’s rejection of our court’s bond hearing requirement for § 1226(a) cannot be fairly applied to Diouf II’s construction of § 1231(a)(6) in light of Zadvydas.

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fundamental premises underlying the Government’s challenge to Diouf II based on the Court’s treatment of § 1226(a) in Jennings.
3. Jennings’s Rejection of a Six-Month Bond Hearing Requirement for Aliens Detained Pursuant to § 1226(a) Does Not Undercut Diouf II’s Construction of § 1231(a)(6)
The merits of the Government’s clear irreconcilability challenge to Diouf II’s bond hearing requirement ultimately come down to Jennings’s rejection of construing § 1226(a) to contain a periodic bond hearing requirement. Reviewing the Court’s actual reasoning in Jennings, including with respect to all the provisions at issue there, we cannot agree that Jennings’s treatment of § 1226(a) on this issue undercuts Diouf II.
In the decision that Jennings reversed, we used the phrase “periodic bond hearing” to refer to bond hearings every six months. Rodriguez III, 804 F.3d at 1089. The Court used the phrase “periodic bond hearing” to encompass a bond hearing held initially at six months of detention. Jennings, 138 S. Ct. at 850–51 (“The Court of Appeals held that aliens detained under the provisions at issue must be given periodic bond hearings, and the dissent agrees. . . . But the dissent draws that 6-month limitation out of thin air. . . [N]othing in any of the relevant provisions imposes a 6month time limit on detention without the possibility of bail.”). Even if we apply the Court’s definition, we fail to see how Jennings undercuts Diouf II’s construction of § 1231(a)(6) to require a bond hearing after the government detains an alien pursuant to this statutory provision for six months and whose release or removal is not imminent.

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Similar to our observation in the discussion of the Government’s constitutional avoidance argument, we observe here that Jennings repeatedly qualified that its rejection of a “periodic bond hearing” requirement applied to the statutory provisions at issue there. Jennings, 138 S. Ct. at 836 (“All parties appear to agree that the text of [§§ 1225(b), 1226(a), 1226(c)], when read most naturally, does not give detained aliens the right to periodic bond hearings during the course of their detention.”); id. (“[T]he Court of Appeals for the Ninth Circuit held that detained aliens have a statutory right to periodic bond hearings under the provisions at issue.” (emphasis added)); id. at 844 (“[A] series of textual signals distinguishes the provisions at issue in this case from Zadvydas’s interpretation of § 1231(a)(6).” (emphasis added)); id. at 850–51 (“The Court of Appeals held that aliens detained under the provisions at issue must be given periodic bond hearings, and the dissent agrees. . . . But the dissent draws that 6-month limitation out of thin air. However broad its interpretation of the words ‘detain’ and ‘custody,’ nothing in any of the relevant provisions imposes a 6-month time limit on detention without the possibility of bail.” (emphasis added)); id. at 851 (“Because the Court of Appeals erroneously concluded that periodic bond hearings are required under the immigration provisions at issue here . . .” (emphasis added)). The Court’s repeated use of this language strongly suggests that we should not read the Court’s rejection of a six-month bond hearing requirement for § 1226(a) as undercutting Diouf II’s construction of § 1231(a)(6) to require a bond hearing after six months of detention when an alien’s release or removal is not imminent.
We find that conclusion inescapable when we look at Jennings’s careful focus on the text of the provisions at issue there and the ways in which they differ from § 1231(a)(6)

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and thus whether Zadvydas’s reasoning could apply to the other provisions at all. In rejecting our constructions of §§ 1225(b)(1) and (b)(2) to contain an implicit six-month time limit, the Court underscored that Zadvydas applied the canon to § 1231(a)(6) based on ambiguity in the provision’s “may be detained” language and because the provision contained no limitation on the permissible length of detention. Jennings, 138 S. Ct. at 843 (noting that in contrast to §§ 1225(b)(1) and (b)(2), “Congress left the permissible length of detention under §1231(a)(6) unclear.”); Zadvydas, 533 U.S. at 697. Rather than allow the government to subject an alien to potentially indefinite detention, as Jennings explained, Zadvydas construed § 1231(a)(6) to hold that “an alien who has been ordered removed may not be detained beyond ‘a period reasonably necessary to secure removal’” with “six months a[s] a presumptively reasonable period.” Jennings, 138 S. Ct. at 843 (quoting Zadvydas, 533 U.S. at 699 and citing Zadvydas, 533 U.S. at 701). As the Court explained, detention pursuant to §§ 1225(b)(1) or (b)(2) presented no such issue based on the clear text of those provisions. Id. at 843–44.
The Court’s analysis of § 1226(a) in Jennings was sparse. But the Court’s reasoning in its discussion of §§ 1225(b)(1) and (b)(2) applies to § 1226(a) as well. Contrary to the Government’s singular focus on §§ 1226(a) and 1231(a)(6)’s use of the “may be detained” language, the provisions are materially distinct in the meaning of this language. Unlike § 1231(a)(6), “§ 1226(a) authorizes the Attorney General to arrest and detain an alien ‘pending a decision on whether the alien is to be removed from the United States.’” Id. at 847 (quoting 8 U.S.C. § 1226(a)). Thus, as a textual matter, discretionary detention pursuant to § 1226(a) has an end point, unlike discretionary detention pursuant to § 1231(a)(6) absent a limiting construction.

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Pursuant to the Court’s own reasoning elsewhere in Jennings, the six-month presumptive time limitation that Zadvydas read into § 1231(a)(6) to address potentially indefinite detention pursuant to that provision does not “fairly apply” to detention pursuant to § 1226(a).
This material difference between §§ 1226(a) and 1231(a)(6) prevents us from concluding that Jennings’s rejection of construing § 1226(a) to require a bond hearing at six months applies to § 1231(a)(6).13 Unlike with any of the other immigration detention statutes at issue in Jennings, Diouf II concerned the statutory provision at issue in Zadvydas and adopted a definition of prolonged detention that coincides with the presumptive six-month time limit that Zadvydas read into that provision based on § 1231(a)(6)’s textual ambiguity. Compare Zadvydas, 533 U.S. at 701 with Diouf II, 634 F.3d at 1091–92 & n.13. Further echoing

13 The dissent’s analysis proceeds on the mistaken assumption that there are no material differences between §§ 1226(a) and 1231(a)(6). Dissent at 61–62 n.2. In doing so, the dissent does not engage with Jennings’s reasoning and analysis regarding the statutory provisions at issue there. Moreover, the dissent commits the converse of the error that led the Court to reject our application of the canon to the other immigration detention statutes. Dissent at 67 (contending that Jennings rejected the “scaffolding upon which we had erected” additional procedural protections for § 1226(a) detainees.). Whereas as we had ignored the textual differences amongst the immigration detention statutes to apply the canon to those statutes in the wake of the Court’s application of the canon to § 1231(a)(6) in Zadvydas, the dissent uncritically applies Jennings’s limited analysis concerning § 1226(a) to Diouf II’s construction of § 1231(a)(6) despite the ways in which Jennings’s reasoning shows that these provisions are materially distinct. Jennings’s actual analysis prevents us from finding clearly irreconcilability here. Cf. Murray, 934 F.3d at 1106 n.6 (finding clear irreconcilability when there were “no meaningful textual difference[s]” in the statutory text at issue there and the different provisions considered by two intervening decisions).

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Zadvydas, Diouf II also qualified that its construction of § 1231(a)(6) to require a bond hearing does not apply if an alien’s release or removal is imminent. Compare Zadvydas, 533 U.S. at 701 (“[A]n alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.”) with Diouf II, 634 F.3d at 1092 n.13.
Although Jennings rejected our court’s reliance on Zadvydas to construe the other immigration detention statutes and rejected construing § 1226(a) to require a sixmonth bond hearing, we cannot find in Jennings’s reasoning a rationale that clearly undercuts Diouf II’s six-month bond hearing requirement for aliens detained pursuant to § 1231(a)(6). Contrary to the dissent’s view, Jennings shows that Zadvydas’s construction of § 1231(a)(6) provides an “arguable statutory foundation,” 138 S. Ct. at 842, for Diouf II’s six-month bond hearing requirement that is entirely absent from the other immigration detention provisions.14

14 The dissent posits that “we have given short shrift to” the motivations underlying the Court’s decision in Zadvydas, specifically that the decision “was largely motivated by the fact that the possibility of removal of the aliens before it was truly remote because the countries to which they could be removed were highly unlikely to accept them at any time in the foreseeable future.” Dissent at 63 n.4. That is incorrect. As the Court has instructed, Zadvydas’s construction of § 1231(a)(6) applies to all aliens detained pursuant to § 1231(a)(6) even if “the constitutional concerns that influenced our statutory construction in Zadvydas are not present for aliens” in other circumstances. Clark, 543 U.S. at 380. And the Court has rejected the notion that statutory ambiguity disappears based on the circumstances of a given alien detained pursuant to § 1231(a)(6). “Be that as it may, it cannot justify giving the same detention provision a different meaning when such aliens are involved. It is not at all unusual to give a statute’s ambiguous

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In its reply brief, the Government makes much of that fact that Jennings called into question Zadvydas’s reading of § 1231(a)(6) as a “notably generous application of the canon.” 138 S. Ct. at 843. But the Court did not overrule Zadvydas; its statutory analysis, including application of the canon, remain intact.15 We therefore cannot conclude that Diouf II’s construction of § 1231(a)(6) to require a bond hearing after six months of detention runs afoul of Jennings. We understand that the Government strenuously disagrees with Diouf II’s bond hearing requirement as inconsistent with the habeas framework that Zadvydas outlined and with the Government’s post-Zadvydas regulations. That disagreement, however, has nothing to do with whether Jennings, by its own terms, undercuts Diouf II’s construction of § 1231(a)(6). Accordingly, we reject the Government’s second argument.

language a limiting construction called for by one of the statute’s applications, even though other of the statute’s applications, standing alone, would not support the same limitation.” Id. (emphasis in original).
15 In failing to account for Jennings’s reasoning regarding Zadvydas and Diouf II’s reliance on Zadvydas’s reading of § 1231(a)(6), the dissent characterizes the textual ambiguity in § 1231(a)(6) that Zadvydas identified as a “narrow ambiguity.” Dissent at 63–64. We know of no basis in our clear irreconcilability jurisprudence that would allow us to overrule the prior decision of a three-judge panel on the basis of a reason that appears nowhere in the intervening authority’s decision. Neither Jennings, nor Zadvydas said anything about the scope of the ambiguity in § 1231(a)(6) that Zadvydas identified. Contrary to the dissent’s view, Jennings’s questioning of Zadvydas’s particular application of the canon to that ambiguity—the adoption of a six-month time limitation that Jennings rejected as a matter of statutory construction for the other immigration detention statutes—says nothing about the ambiguity’s scope.

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C. Diouf II’s Reliance on Casas-Castrillon
As a final matter, the Government contends that Diouf II is clearly irreconcilable with Jennings based on the interrelated nature of our decisions in Casas-Castrillon, Diouf II, and Rodriguez III. The Government’s argument is as follows: (1) Diouf II extended Casas-Castrillon’s construction of § 1226(a) to individuals subject to prolonged detention pursuant to § 1231(a)(6), (2) Rodriguez III also applied Casas-Castrillon’s construction of § 1226(a), (3) Jennings reversed Rodriguez III, and, thus, by implication, (4) Jennings and Diouf II are clearly irreconcilable. We reject these arguments for two reasons.
First, we think that the Government misreads both Casas-Castrillon and Jennings. As we have explained, Jennings did not invalidate construing § 1226(a) to authorize a bond hearing at all, but rather rejected construing § 1226(a) to require a bond hearing at six months in addition to the government’s existing bond hearing regulations. More importantly here, Casas-Castrillon did not construe § 1226(a) in the manner that the Court rejected in Jennings. Casas-Castrillon applied the canon of constitutional avoidance to construe § 1226(a)’s authorization for release of an alien on bond as requiring an individualized bond hearing when an alien is subject to prolonged detention. 535 F.3d at 951. By the time our court decided Rodriguez III, we had applied Diouf II’s definition of prolonged detention as detention lasting longer than six months to § 1226(a), which transformed Casas-Castrillon’s bond hearing requirement into a six-month bond hearing requirement. See Rodriguez II, 715 F.3d at 1139 (“Diouf II strongly suggested that immigration detention becomes prolonged at the six-month mark regardless of the authorizing statute. . . . Even if Diouf II does not squarely

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hold that detention always becomes prolonged at six months, that conclusion is consistent with the reasoning of Zadvydas, Demore, Casas[-Castrillon], and Diouf II, and we so hold.”); see also Rodriguez III, 804 F.3d at 1078 & n.7. By its terms, Jennings invalidates that aspect of our case law construing § 1226(a), but does not go further.16
Second, even if we concluded here that Jennings overruled Casas-Castrillon, we do not see how that could undercut Diouf II entirely. Diouf II’s construction of § 1231(a)(6) did not rest solely on its purported extension of Casas-Castrillon to aliens detained pursuant to § 1231(a)(6). Diouf II, 634 F.3d at 1086. As we have explained, Diouf II considered a number of arguments particular to § 1231(a)(6) itself that could not have applied to Casas-Castrillon’s analysis of § 1226(a). Id. at 1086–92. More critically, as Jennings’s reasoning makes clear, Casas-Castrillon concerned a statutory provision that is materially different from the provision at issue in Diouf II. Thus, we conclude that Diouf II can stand irrespective of its reliance on Casas-

16 The dissent contends that in rejecting the Government’s challenge to Diouf II based on its argument here, we have suggested that “some of Casas-Castrillon survives Jennings[.]” Dissent at 68 n.14. Our response is twofold. For one, we have done nothing more than explain why we think the Government’s challenge to Diouf II based on Jennings is wrong. We have not decided what specifically remains of CasasCastrillon’s statutory holding after Jennings. Second, we do not take issue with the dissent’s correct understanding that Jennings invalidated procedural protections that go beyond what the government’s regulations provide. Id. However, we otherwise part ways with the dissent’s reading of Jennings. As we have explained, Jennings’s approval of the government’s regulations to provide bond hearings for aliens detained pursuant to § 1226(a) necessarily assumes that § 1226(a) can be plausibly read to authorize such hearings in the first place.

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Castrillon.17 Because we reject this final argument, we conclude that the Government has not shown that Diouf II is clearly irreconcilable with Jennings.

D. Additional Support for Diouf II After Jennings

Apart from rejecting the Government’s arguments, we find additional support for our conclusion that Diouf II is not clearly irreconcilable with Jennings based on the Third Circuit’s decision in Guerrero-Sanchez v. Warden York County Prison, 905 F.3d 208 (3d Cir. 2018).

In Guerrero-Sanchez, the Third Circuit considered whether the government could subject the alien petitioner in that case to prolonged detention without providing an individualized bond hearing. The Third Circuit first determined that the alien—who had a reinstated removal order and was detained pending his pursuit of withholdingonly relief from removal—was subject to detention pursuant to § 1231(a)(6).18 Id. at 213–19. Having located the

17 The dissent’s reliance on Nunez-Reyes v. Holder, 646 F.3d 684, 690 (9th Cir. 2011) (en banc) misses the mark. For one, Nunez-Reyes involved our court sitting en banc, not a three-judge panel determining whether an earlier circuit precedent was clearly irreconcilable with the decision of an intervening authority. We are faced with different constraints compared with our court sitting en banc. Second, unlike in Nunez-Reyes, there is no single “rule” on which Diouf II relied that would warrant a conclusion that Jennings’s rejection of any aspect of Casas-Castrillon necessarily would invalidate Diouf II in its entirety.
18 We recognize that there is a circuit split on the issue of whether an alien subject to a reinstated removal order who pursues withholdingonly relief is subject to detention pursuant to § 1226(a) or § 1231(a)(6). Both our court and the Third Circuit treat such detention as authorized pursuant to § 1231(a)(6). Guerrero-Sanchez, 905 F.3d at 213–19; Padilla-Ramirez, 882 F.3d at 830–32. In contrast, the Second and Fourth

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government’s detention authority in § 1231(a)(6), the Third Circuit considered whether the petitioner was entitled to a bond hearing at all. Id. at 219. To resolve that issue, the Third Circuit considered, in relevant part, Zadvydas, Jennings, and Diouf II.
Rejecting the government’s argument there that “Zadvydas resolves the only ambiguity in the text of § 1231(a)(6),” id. at 220, the Third Circuit reasoned that Zadvydas did “not explicitly preclude courts from construing § 1231(a)(6) to include additional procedural protections during the statutorily authorized detention period, should those protections be necessary to avoid detention that could raise different constitutional concerns,” id. at 221 (emphasis in original). Finding that the petitioner’s 637-day detention without bond raised serious constitutional concerns, id., the Third Circuit declined to address whether the petitioner’s continued confinement violated the Due Process Clause. Id. at 221, 223. Instead, the court asked whether the canon of constitutional avoidance might sustain a reading of § 1231(a)(6) that would require the provision of a bond hearing. Id. at 223.
The Third Circuit acknowledged Jennings’s discussion regarding the proper invocation of the canon and Jennings’s holding that the canon could not be applied to “other provisions in the INA” that use the phrase “shall detain.” Id. (“We . . . invoke the canon of constitutional avoidance so long as ‘the statute is found to be susceptible of more than one construction.’ (quoting Jennings, 138 S. Ct. at 842)). Turning to § 1231(a)(6)’s text and alluding to Zadvydas, the

Circuits treat such detention as authorized pursuant to § 1226(a). Guzman Chavez v. Hott, 940 F.3d 867, 880−82 (4th Cir. 2019); Guerra v. Shanahan, 831 F.3d 59, 64 (2d Cir. 2016).

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Third Circuit noted that the statute’s use of the phrase “may be detained” “invites us to apply the canon of constitutional avoidance[.]” Id. at 223–24. “In order to avoid determining whether the petitioner’s detention violates the Due Process Clause,” the Third Circuit expressly “adopt[ed] the Ninth Circuit’s limiting construction of § 1231(a)(6) that ‘an alien facing prolonged detention under [that provision] is entitled to a bond hearing before an immigration judge and is entitled to be released from detention unless the government establishes that the alien poses a risk of flight or a danger to the community.’” Id. at 224 (quoting Diouf II, 634 F.3d at 1092). The Third Circuit also adopted our clear and convincing evidence standard set forth in Singh. Id. at n.12 (“The Government must meet its burden in such bond hearings by clear and convincing evidence. (citing Singh, 638 F.3d at 1203–04)). The Third Circuit’s express and reasoned adoption of Diouf II even after Jennings shows that we do not break new ground in concluding that Diouf II is not clearly irreconcilable with Jennings.
Ignoring Guerrero-Sanchez, the Government quotes from the Sixth Circuit’s decision in Hamama v. Homan, 912 F.3d 869 (6th Cir. 2018), without any argument about how that case should affect our clear irreconcilability analysis here. To the extent the Government intended to argue that Hamama should change our analysis, we reject that argument.
In Hamama, the Sixth Circuit vacated a district court’s class-wide preliminary injunction concerning §§ 1226(c) and 1231(a)(6) detention claims, pursuant to which the government was required to provide class members with individualized bond hearings. Id. at 873–74. With respect to those claims, the Sixth Circuit determined that 8 U.S.C. § 1252(f)(1), a statute that prohibits federal courts other than

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the Supreme Court from enjoining the operation of §§ 1221– 31 except with respect to an individual alien, barred jurisdiction over class-wide injunctive relief there. Id. at 877. In rejecting the petitioners’ argument that they sought injunctive relief pursuant to a statutory construction of the relevant detention statutes, the Sixth Circuit determined that “Jennings foreclosed any statutory interpretation that would lead to what Petitioners want.” Id. at 879. In the Sixth Circuit’s view, “the district court . . . created out of thin air a requirement for bond hearings that does not exist in the statute; and adopted new standards that the government must meet at the bond hearings.” Id. at 879–80.
Hamama does not compel a different conclusion about whether Diouf II is clearly irreconcilable with Jennings for two reasons. First, despite remarking that “the Jennings Court chastised the Ninth Circuit for ‘erroneously conclud[ing] that periodic bond hearings are required under the immigration provisions at issue here,” the Sixth Circuit extended Jennings to § 1231 without any analysis regarding whether Jennings’s reasoning fairly applies to that provision. Id. at 879 (quoting Jennings, 138 S. Ct. at 850) (emphasis added). Although we do not question Hamama’s determination insofar as it concerns the provisions actually at issue in Jennings, we cannot agree with the uncritical extension of Jennings to § 1231(a)(6), particularly given our foregoing analysis of Jennings. Second, unlike GuerreroSanchez, Hamama neither acknowledged, nor grappled with our decision in Diouf II. Therefore, we do not find Hamama to have any persuasive value here in determining whether we remain bound by Diouf II even after Jennings.
The dissent takes issue with our reliance on GuerreroSanchez. Dissent at 63–64 & n.5. Yet, in so doing, the dissent errs by mistaking the clear irreconcilability inquiry

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that confronts us with an invitation to opine on how we would decide the statutory construction question that Diouf II resolved.19 To be clear, our reliance on Guerrero-Sanchez concerns whether we may apply Diouf II even after Jennings. In determining whether a prior circuit precedent is clearly irreconcilable with an intervening authority’s decision, we have looked to how other circuits have addressed the issue in light of the intervening decision. See Murray, 934 F.3d at 1107 (observing that the court’s clear irreconcilability conclusion “comport[ed] with the decisions of all of our sister circuits that have considered this question after” the Supreme Court’s Gross and Nassar decisions); In re Zappos.com, Inc., 888 F.3d 1020, 1026 n.6 (9th Cir. 2018) (noting that the panel’s conclusion that earlier circuit precedent was not clearly irreconcilable with an intervening Supreme Court decision was “consistent” with sister circuit decisions to have considered the issue). Guerrero-Sanchez is the only reasoned decision of another circuit addressing the relationship between Diouf II’s construction of § 1231(a)(6) and Jennings, and it determined that Jennings does not undercut Diouf II’s construction. We therefore respectfully disagree with the dissent.

19 The dissent asserts that we and Guerrero-Sanchez “mistakenly perceive[] the narrow ambiguity in § 1231(a)(6) identified by Zadvydas” to justify Diouf II’s construction of § 1231(a)(6). Dissent 63–64. We have already explained that the dissent’s characterization of the ambiguity that Zadvydas identified is not justified by Jennings or Zadvydas. We otherwise note that the dissent’s view contravenes how at least one other circuit understood Zadvydas prior to Jennings. See Hernandez-Carrera v. Carlson, 547 F.3d 1237, 1249 (10th Cir. 2008) (“In Zadvydas, the Supreme Court did not purport to ‘resolve’ the statutory ambiguity in § 1231(a)(6) once and for all. . . . In no way, . . . did the Court signal that its interpretation was the only reasonable construction of § 1231(a)(6).”).

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E. The Outcome of the Clearly Irreconcilable Analysis
We have carefully considered Jennings, Diouf II, and the parties’ arguments as well as the dissent’s views. As we have explained, there is some tension between Diouf II and Jennings. But, as members of a three-judge panel, we are not free to overrule the prior decision of a three-judge panel merely because we sense some tension with that decision and the decision of an intervening higher authority even if we might have reached a different outcome than the prior decision in light of that intervening authority. Consumer Def., 926 F.3d at 1213 (“[M]ere tension between the cases does not meet the higher standard of irreconcilable conflict.”). Taken together, Jennings’s limited focus on the provisions at issue in that case and Jennings’s analysis and reasoning concerning those provisions compel us to conclude that we remain bound by Diouf II’s construction of § 1231(a)(6). Neither the Government’s arguments, nor the dissent have persuaded us otherwise. Accordingly, we conclude that the district court properly determined that Plaintiffs are likely to succeed on the merits of their § 1231(a)(6) statutory claims.
III. The Preliminary Injunction Is Not Otherwise Contrary to Law
Although we have concluded that Plaintiffs are likely to succeed on the merits of their statutory claims, the Government contends that we must vacate the preliminary injunction because of two other asserted legal errors. We disagree because we find no such errors.
First, the Government argues that Zadvydas already applied the canon to § 1231(a)(6) to prohibit indefinite definition, pursuant to which Zadvydas specified a particular

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means by which an alien can challenge detention in a habeas petition. The Government contends that the district court could not re-apply the canon to § 1231(a)(6). The Government, however, cannot properly charge the district court with erroneously “re-applying” the canon of constitutional avoidance to § 1231(a)(6). Indeed, the Government acknowledges that the district court merely followed Diouf II’s construction of § 1231(a)(6).
The Government’s true complaint is with Diouf II itself. As in Diouf II, the Government argues here that § 1231(a)(6)’s text cannot be interpreted to require a bond hearing for aliens detained under the provision. Diouf II, 634 F.3d at 1089. And, as in Diouf II, the Government argues that its post-Zadvydas regulations adequately address any constitutional concerns that may arise from an alien’s continued detention pursuant to § 1231(a)(6). Diouf II, 634 F.3d at 1089–92. The Government’s attempt to relitigate issues that Diouf II decided necessarily fails because we have concluded that Diouf II remains controlling precedent. Although the Government may disagree with Diouf II’s wisdom, that disagreement does not give us license to disregard Diouf II.
Second, the Government argues that Clark v. Martinez, 543 U.S. 371 (2005), stands for the proposition that courts can apply only Zadvydas’s construction of § 1231(a)(6) in all cases, and nothing more. Based on this reading of Clark, the Government contends that the district court’s preliminary injunction erroneously departs from the framework Zadvydas established for federal habeas courts.
Contrary to the Government’s argument, Clark did not announce a new rule of the canon of constitutional avoidance, nor does Clark stand for the proposition that Zadvydas’s construction of § 1231(a)(6) is the single

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permissible application of the canon to that provision. Instead, in Clark, the Court held that Zadvydas’s construction of § 1231(a)(6) “must” apply to all three categories because “[t]he operative language of § 1231(a)(6) . . . applies without differentiation to all three categories of aliens that are its subject.” Clark, 543 U.S. at 378. Clark thus requires applying § 1231(a)(6), including as judicially construed, in the same manner for all categories of aliens specified in the statute “without differentiation.” Id. at 378– 79.20
Expressly acknowledging Clark, Diouf II requires the Government to provide a bond hearing to any alien detained under § 1231(a)(6) whose detention becomes prolonged and whose release or removal is not imminent, Diouf II, 634 F.3d at 1088 (citing Clark, 543 U.S. at 380–81); id. at 1084. Consistent with Clark and Diouf II, the preliminary injunction applies to the entire certified class of aliens that our court treats as detained pursuant to § 1231(a)(6).21 See Padilla-Ramirez, 882 F.3d at 830–32. Thus, we reject the Government’s remaining challenges to the preliminary injunction.

20 In Clark, the Court rejected the dissent’s contrary view that the government’s § 1231(a)(6) detention authority applies differently across categories of aliens as a “novel interpretative approach” that “would render every statute a chameleon, its meaning subject to change depending on the presence or absence of constitutional concerns in each individual case.” 543 U.S. at 382. This aspect of Clark does not support the Government’s position.
21 The certified class includes aliens with administratively final removal orders under 8 U.S.C. § 1228(b). The Government does not argue that such aliens are not subject to detention pursuant to § 1231(a), and thus has waived any such argument in this appeal. We therefore assume that such aliens may be detained pursuant to § 1231(a)(6).

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CONCLUSION
We conclude that the district court correctly determined that Plaintiffs are likely to succeed on their § 1231(a)(6) statutory claims. Thus, we affirm the district court’s grant of a preliminary injunction.
AFFIRMED.

FERNANDEZ, Circuit Judge, dissenting:
I agree with the majority that Plaintiffs’ likelihood of success on their statutory claim turns on whether Diouf v. Napolitano (Diouf II), 634 F.3d 1081, 1085–86 (9th Cir. 2011), remains binding law in our circuit. I also agree that we must follow Diouf II unless a subsequent Supreme Court case has “undercut [its] theory or reasoning . . . in such a way that the cases are clearly irreconcilable.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). And I agree that “‘is a high standard’” to meet. Close v. Sotheby’s, Inc., 894 F.3d 1061, 1073 (9th Cir. 2018). That standard is met here because Diouf II’s reasoning is clearly irreconcilable with Jennings v. Rodriguez, __ U.S. __, __, 138 S. Ct. 830, 851, 200 L. Ed. 2d 122 (2018). Therefore, I respectfully dissent.
As an intermediate appellate court, one goal of our jurisprudence is “to preserve the consistency of circuit law.” Miller, 335 F.3d at 900. But this laudable objective “must not be pursued at the expense of creating an inconsistency between our circuit decisions and the reasoning” of the Supreme Court. Id. Deciding whether Jennings and Diouf II are irreconcilable is not merely a matter of deciding whether their ultimate holdings might coexist in the abstract.

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See United States v. Lindsey, 634 F.3d 541, 550 (9th Cir. 2011); see also Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1019 (9th Cir. 2006). Instead, the question is whether the Supreme Court has so “undercut the theory or reasoning” of Diouf II “that the cases are [now] clearly irreconcilable.” Miller, 335 F.3d at 900; see also Ne. Ohio Coal. for the Homeless v. Husted, 831 F.3d 686, 720–21 (6th Cir. 2016). That inquiry “requires us to look at more than [the Court’s] surface conclusions,” and to examine whether the Court’s “‘approach . . . [is] fundamentally inconsistent with’” our earlier reasoning. Rodriguez v. AT & T Mobility Servs. LLC, 728 F.3d 975, 979 (9th Cir. 2013). That includes the Court’s “‘mode of analysis.’” Miller, 335 F.3d at 900. If “the conclusion reached in our circuit precedent [can] no longer [be] ‘supported for the reasons stated’ in that decision,” the circuit precedent must yield. Rodriguez, 728 F.3d at 979; see also Ortega-Mendez, 450 F.3d at 1020. We have frequently applied that principle and deviated from our prior holdings. See, e.g., Murray v. Mayo Clinic, 934 F.3d 1101, 1105 (9th Cir. 2019), petition for cert. filed, 88 U.S.L.W. 3265 (U.S. Feb. 3, 2020) (No. 19-995); Rodriguez, 728 F.3d at 981; United States ex rel. Air Control Techs., Inc. v. Pre Con Indus., Inc., 720 F.3d 1174, 1177–78 (9th Cir. 2013); Lindsey, 634 F.3d at 549–50; Ortega-Mendez, 450 F.3d at 1018–20; Galbraith v. County of Santa Clara, 307 F.3d 1119, 1123–25 (9th Cir. 2002).
A close examination of Diouf II and Jennings reveals that the reasoning supporting Diouf II’s conclusion that 8 U.S.C. § 1231(a)(6) requires aliens be afforded individualized bond hearings after six months of detention is no longer viable. In Diouf II, we held “that an individual facing prolonged immigration detention under 8 U.S.C. § 1231(a)(6) is entitled to release on bond unless the government establishes that he is a flight risk or a danger to

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the community.” Diouf II, 634 F.3d at 1082. We extended procedural protections that we had previously granted to aliens facing prolonged detention under 8 U.S.C. § 1226(a)1 to those detained under § 1231(a)(6), because otherwise their “prolonged detention . . . would raise ‘serious constitutional concerns.’” Diouf II, 634 F.3d at 1086. We thus “appl[ied] the canon of constitutional avoidance and construe[d] § 1231(a)(6) as requiring an individualized bond hearing, before an immigration judge, for aliens facing prolonged detention.” Id. Jennings is clearly irreconcilable with Diouf II’s reasoning, both with regard to our application of the canon of constitutional avoidance and our reliance on Casas-Castrillon.2

1 Casas-Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942, 949– 51 (9th Cir. 2008).
2 The majority mentions several times that Jennings, __ U.S. at __, 138 S. Ct. at 836, 842, 843–44, 850–51, expressly limited its holding to the statutory provisions that were before it (i.e., 8 U.S.C. §§ 1225(b), 1226(a), (c)). But that does “not deprive it of all persuasive force.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 351, 133 S. Ct. 2517, 2527, 186 L. Ed. 2d 503 (2013). Thus, to the extent that the majority relies upon that limitation to justify its reconciling of Jennings, __ U.S. at __, 138 S. Ct. at 851, and Diouf II, 634 F.3d at 1086, I disagree. As we have said, “the issues decided by the higher court need not be identical in order to be controlling.” Miller, 335 F.3d at 900; see also Gahagan v. USCIS, 911 F.3d 298, 302 (5th Cir. 2018) (“That two decisions involve different statutes is not dispositive.”). For example, in Murray, 934 F.3d at 1105–07, we determined that the reasoning of one of our earlier circuit cases, Head v. Glacier Nw. Inc., 413 F.3d 1053, 1063–65 (9th Cir. 2005), was clearly irreconcilable with subsequent Supreme Court cases. Neither of those Supreme Court cases addressed the particular statutory provision that was before us in either Murray or Head. Murray, 934 F.3d at 1105–07; see also Nassar, 570 U.S. at 351– 53, 133 S. Ct. at 2528; Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 173– 75, 129 S. Ct. 2343, 2348–49, 174 L. Ed. 2d 119 (2009). Nevertheless,

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Jennings establishes that we misused the canon of constitutional avoidance in Diouf II. In Jennings, the Supreme Court explained that the canon should be employed only “‘after the application of ordinary textual analysis,’” when “‘the statute is found to be susceptible of more than one construction.’” Jennings, __ U.S. at __, 138 S. Ct. at 842; see also Clark v. Martinez, 543 U.S. 371, 385, 125 S. Ct. 716, 726, 160 L. Ed. 2d 734 (2005). Diouf II engaged in no textual analysis of § 1231(a)(6): we did not identify a textual ambiguity in the statute regarding a bond hearing requirement, nor did we identify any plausible basis in the statutory text for such a hearing. See Diouf II, 634 F.3d at 1089; see also Clark, 543 U.S. at 379, 381, 125 S. Ct. at 723, 724. Diouf II’s application of the constitutional avoidance canon without first analyzing the text of the statute or identifying a relevant ambiguity is clearly irreconcilable with Jennings. Instead of properly applying the canon of constitutional avoidance to § 1231(a)(6), Diouf II simply grafted Casas-Castrillon’s reasoning as to § 1226(a) detainees onto § 1231(a)(6) detainees. Diouf II, 634 F.3d at 1089. We did not explain why that was appropriate, notwithstanding our recognition that the text of § 1226(a) expressly mentions bond, while the text of § 1231(a)(6) does not. See id.; cf. Nassar, 570 U.S. at 352, 133 S. Ct. at 2528 (applying the same analysis when there is no “meaningful textual difference” between the two statutes at issue). That approach in Diouf II is irreconcilable with Jennings.

we adopted the Supreme Court’s reasoning because there was “no meaningful textual difference” between the statutes in the circumstances at issue there. Murray, 934 F.3d at 1106 n.6; see also id. at 1106. The same is true here. Thus, that Jennings and Diouf II analyzed different statutes is not dispositive of their irreconcilability.

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The majority seeks support in the Third Circuit’s decision that Diouf II’s reasoning remains sound because “[t]he Supreme Court has already determined [in Zadvydas3] that the text of § 1231(a)(6) is ambiguous as to the due process protections that it provides,” and that § 1231(a)(6) could therefore be construed to require bond hearings. Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d 208, 223–24 (3d Cir. 2018). However, like Diouf II and the majority, the Third Circuit mistakenly perceived the narrow ambiguity in § 1231(a)(6) identified by Zadvydas, in the particular context presented there, as essentially equivalent to a general determination that § 1231(a)(6) is “ambiguous as to . . . due process” overall. Guerrero-Sanchez, 905 F.3d at 223.4 Our adopting the Third Circuit’s approach would effectively allow courts to decide constitutional issues sub silentio, without ever having to “find[] a statute unconstitutional as applied.” Clark, 543 U.S. at 384, 125 S. Ct. at 726. Instead, we should follow the procedure described by Jennings: a court must identify “‘competing plausible interpretations of [the] statutory text,’” in the specific context of the matter at hand, before applying the canon of constitutional avoidance. See Jennings, __ U.S.

3 Zadvydas v. Davis, 533 U.S. 678, 697, 121 S. Ct. 2491, 2502, 150 L. Ed. 2d 653 (2001) (“the word ‘may’ is ambiguous”).
4 By the way, it seems to me that the Third Circuit, and we, have given short shrift to the fact that the Court’s opinion in Zadvydas was largely motivated by the fact that the possibility of removal of the aliens before it was truly remote because the countries to which they could be removed were highly unlikely to accept them at any time in the foreseeable future. Thus, detention was indefinite and potentially permanent. See Zadvydas, 533 U.S. at 684–86, 690–91, 695–96, 121 S. Ct. at 2496–97, 2498–99, 2502. Even so, the Court has dubbed the decision in Zadvydas “notably generous.” Jennings, __ U.S. at __, 138 S. Ct. at 843; see also id. at __, 138 S. Ct. at 843–44 (the Court did not expand that form of generosity).

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at __, 138 S. Ct. at 843; Clark, 543 U.S. at 379, 125 S. Ct. at 723. Here, that would require us to identify an ambiguity in the text of § 1231(a)(6) that produces a plausible reading of the statute as requiring bond hearings. None is apparent to me.5
The majority decides that Diouf II conformed with Jennings in interpreting the text of § 1231(a)(6) because it noted that prior circuit precedent6 and agency regulations7 had recognized the requirement of a bond as a reasonable condition8 of supervised release pursuant to the statute. See Diouf II, 634 F.3d at 1089. But I fail to see how that reasoning or line of authority supplies the necessary plausible interpretation of the text of § 1231(a)(6) as requiring a bond hearing. Those authorities arose out of Congress’s explicit command to the Attorney General to prescribe regulations governing the terms of an alien’s supervised release after his initial 90-day detention. 8 U.S.C. § 1231(a)(3). The Department of Homeland

5 For example, the Court’s determination in Zadvydas, 533 U.S. at 697, 121 S. Ct. at 2502, that § 1231(a)(6) was ambiguous as to whether the agency had discretion to indefinitely detain aliens does not support the independent conclusion that § 1231(a)(6) is also ambiguous as to whether the agency must afford those aliens individualized bond hearings before an Immigration Judge when they have been detained for six months. See Jennings, __ U.S. at __, 138 S. Ct. at 847–48 (explaining that logic in the context of § 1226(a)); cf. Diouf II, 634 F.3d at 1086, 1091–92, 1092 n.13.
6 Diouf v. Mukasey (Diouf I), 542 F.3d 1222, 1234 (9th Cir. 2008); see also Doan v. INS, 311 F.3d 1160, 1162 (9th Cir. 2002).
7 8 C.F.R. § 241.5(a)–(b).
8 8 U.S.C. § 1231(a)(3).

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Security9 dutifully promulgated pertinent regulations, and one of the release conditions it adopted was that an alien may be required to post a bond in order to ensure his compliance with the terms of his supervision order. 8 C.F.R. § 241.5(b); see also Doan, 311 F.3d at 1162. But the agency’s proper exercise of its discretion10 to impose bond as a condition of release pursuant to § 1231(a)(3), combined with our decision that § 1231(a)(6) allows the agency to do so,11 does not produce the conclusion that § 1231(a)(6) plausibly requires, as a matter of statutory construction, the bond hearings sought by the Plaintiffs. See Morales-Izquierdo, 486 F.3d at 493.12 As I have previously noted, neither a bond nor a hearing is mentioned in the text of § 1231(a)(6).13 Because our court has yet to identify a plausible interpretation of the text of § 1231(a)(6) that would require a bond hearing, I disagree with the majority’s conclusion that Diouf II applied

9 See City & County of San Francisco v. USCIS, 944 F.3d 773, 781 n.2 (9th Cir. 2019).
10 See Morales-Izquierdo v. Gonzales, 486 F.3d 484, 492 (9th Cir. 2007) (en banc).
11 Doan, 311 F.3d at 1161–62.
12 And because Diouf I, 542 F.3d at 1234, and Doan, 311 F.3d at 1162, simply recognized the agency’s authority to impose bond as a condition of release, I see no ineluctable reason that those cases would have to be overturned if we overturned Diouf II, 634 F.3d at 1086, 1089.
13 I do not mean to suggest that the statute forbids the agency from promulgating regulations that would allow bond hearings before an Immigration Judge. See Encino Motorcars, LLC v. Navarro, __ U.S. __, __, 136 S. Ct. 2117, 2124–25, 195 L. Ed. 2d 382 (2016); see also Morales-Izquierdo, 486 F.3d at 493. But that does not make it any less problematic for a court to “simply read a bond hearing requirement into the statute.” See Rodriguez v. Robbins, 715 F.3d 1127, 1143 (9th Cir. 2013) (characterizing the Diouf line of cases).

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the canon of constitutional avoidance to choose between competing plausible interpretations of § 1231(a)(6), as required by Jennings. Rather, its reasoning is irreconcilable with Jennings.
Diouf II’s holding was also premised on its implicit assumption that the language of § 1226(a) and § 1231(a)(6) was sufficiently similar that Casas-Castrillon’s analysis of § 1226(a) could be grafted onto § 1231(a)(6). Diouf II, 634 F.3d at 1086, 1089; see also, e.g., Murray, 934 F.3d at 1106 & n.6. Diouf II’s reasoning in this regard has likewise been fatally undermined because that aspect of Casas-Castrillon is itself clearly irreconcilable with Jennings.
In Casas-Castrillon, we held “that the government may not detain a legal permanent resident . . . for a prolonged period [pursuant to 8 U.S.C. § 1226(a)] without providing him a neutral forum in which to contest the necessity of his continued detention.” Casas-Castrillon, 535 F.3d at 949. Our holding was premised on our conclusion “that prolonged detention without adequate procedural protections would raise serious constitutional concerns.” Id. at 950. But we did not decide the constitutional issue in Casas-Castrillon. Id. Rather, we pointed out that § 1226(a) “provides . . . authority for the Attorney General to conduct a bond hearing and release the alien on bond or detain him if necessary to secure his presence at removal.” Id. at 951; see also 8 U.S.C. § 1226(a)(2) (an alien “may [be] release[d]” on bond or parole). We then held that “[b]ecause the prolonged detention of an alien without an individualized determination of his dangerousness or flight risk would be ‘constitutionally doubtful,’ . . . § 1226(a) must be construed as requiring the Attorney General to provide the alien with such a hearing.” Casas-Castrillon, 535 F.3d at 951. But we

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identified no ambiguity in § 1226(a) regarding whether a bond hearing was required. Id. at 950–51. Instead, we essentially rewrote the statute to make it so. Id. That is precisely the procedure rejected by the Supreme Court in Jennings. See Jennings, __ U.S. at __, 138 S. Ct. at 843; see also Clark, 543 U.S. at 378, 125 S. Ct. at 722–23; id. at 381, 125 S. Ct. at 724.
In Jennings, the Supreme Court rejected as implausible our reading of § 1226(a) “to limit the permissible length of an alien’s detention without a bond hearing.” Jennings, __ U.S. at __, 138 S. Ct. at 842. The Supreme Court held “that there is no justification for any of the procedural requirements that the Court of Appeals layered onto § 1226(a) without any arguable statutory foundation.” Id. Nonetheless, the Supreme Court acknowledged that aliens detained pursuant to § 1226(a) were entitled, by dint of agency regulations, to “bond hearings at the outset of detention.” Id. at __, 138 S. Ct. at 847. The Supreme Court thus struck down the additional procedural devices we had created, which went “well beyond the initial bond hearing established by existing regulations—namely, periodic bond hearings every six months in which the Attorney General must prove by clear and convincing evidence that the alien’s continued detention is necessary.” Id. at __, 138 S. Ct. at 847–48. The scaffolding upon which we had erected those excess procedures for § 1226(a) detainees was CasasCastrillon and its progeny. See Rodriguez v. Robbins, 804 F.3d 1060, 1084–85, 1086–89 (9th Cir. 2015) (“The district court’s decision regarding the § 1226(a) subclass was squarely controlled by our precedents,” most prominently, Casas-Castrillon), rev’d, Jennings, __ U.S. at __, 138 S. Ct. at 836. Because Jennings struck down all procedural protections for § 1226(a) detainees beyond those provided by regulation, Jennings dispelled the excess

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procedures conjured up by Casas-Castrillon, 535 F.3d at 950–51.14 Thus, Diouf II’s reasoning that § 1231(a)(6) detainees were entitled to individualized bond hearings simply because Casas-Castrillon had conjured those for § 1226(a) detainees is clearly irreconcilable with Jennings.
Diouf II contains no other reasoning supporting its conclusion that an individualized bond hearing is required for § 1231(a)(6) detainees. See Diouf II, 634 F.3d at 1086, 1089. In light of the analysis above, the majority contradicts Jennings by relying on Diouf II. See Close, 894 F.3d at 1073; cf. Nunez-Reyes v. Holder, 646 F.3d 684, 690 (9th Cir. 2011) (en banc) (overruling one case likewise overrules the holdings of those cases that followed its rule). In other words, there is no basis for clinging to a mode of analysis that the Court has plainly held is plainly wrong. Rather, we should vacate the grant of the preliminary injunction.
Thus, I respectfully dissent.

14 The majority suggests that some of Casas-Castrillon survives Jennings: that is, the majority reads Jennings to invalidate only the requirement that a hearing be conducted after six months of detention, which it sees as narrower than Casas-Castrillon’s holding, which required an individualized bond hearing after an alien’s “prolonged detention.” See Casas-Castrillon, 535 F.3d at 951. But I take the Supreme Court at its word, and it told us in Jennings that we had erred in providing § 1226(a) detainees with “procedural protections that go . . . beyond [those] . . . established by existing regulations.” Jennings, __ U.S. at __, 138 S. Ct. at 847. Because the hearings prescribed in CasasCastrillon are procedural protections that are not “established by existing regulations,” I disagree with the majority that Casas-Castrillon’s hearing requirement survived Jennings.

 
 Case 3:18-cv-01869-JSC Document 85 Filed 06/19/20 Page 1 of 17

United States District Court Northern District of California

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7

8

ESTEBAN ALEMAN GONZALEZ, et al.,

Case No. 18-cv-01869-JSC

9

Plaintiffs,

10

v.

11

WILLIAM P. BARR, et al.,

ORDER RE: PLAINTIFFS’ MOTION TO ENFORCE THE COURT’S MARCH 13, 2019 ORDER AND AMEND THE COURT’S JUNE 5, 2018 ORDER

12

Defendants.

Re: Dkt. No. 75

13

On June 5, 2018, the Court issued an order granting Plaintiffs’ motions for preliminary

14 injunction and class certification. (Dkt. No. 33.)1 On March 13, 2019, the Court issued an order

15 directing Defendants to provide Plaintiffs a periodic Class List to demonstrate Defendants’

16 compliance with the June 2018 Order. (Dkt. No. 64.) Now before the Court is Plaintiffs’ motion

17 to enforce the March 2019 Order and amend the June 2018 Order. (Dkt. No. 75.) After careful

18 consideration of the parties’ briefing and having had the benefit of oral argument on June 18,

19 2020, the Court GRANTS IN PART and DENIES IN PART Plaintiffs’ motion.

20

BACKGROUND

21 I. June 2018 Order

22

The June 2018 Order certified a class consisting of:

23

[A]ll individuals who are detained pursuant to 8 U.S.C. § 1231(a)(6)

in the Ninth Circuit by, or pursuant to the authority of, the U.S.

24

Immigration and Customs Enforcement (“ICE”), and who have

reached or will reach six months in detention, and have been or will

25

be denied a prolonged detention bond hearing before an Immigration

Judge (“IJ”). 26

27

28

1 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents.

Case 3:18-cv-01869-JSC Document 85 Filed 06/19/20 Page 2 of 17

United States District Court Northern District of California

1 (Dkt. No. 33 at 4-5.) The Order also issued a preliminary injunction enjoining Defendants from

2 detaining Plaintiffs and the class members pursuant to section 1231(a)(6) for more than 180 days

3 without a bond hearing before an IJ. (Id. at 19.) On July 20, 2018, the Court issued an order,

4 (Dkt. No. 42 (“July 2018 Clarification Order”)), in response to Defendants’ motion for

5 clarification of the June 2018 Order, (Dkt. No. 36). The Court clarified that the class includes

6 only those individuals detained pursuant to section 1231(a)(6) who have live claims before an

7 adjudicative body challenging their removal from the United States. (Dkt. No. 42 at 2.)

8

In November 2018 Plaintiffs filed a motion to enforce the June 2018 Order. (Dkt. No. 46.)

9 The motion sought to broaden the class definition to include individuals transferred outside the

10 jurisdiction of the Ninth Circuit prior to their 180th day in detention, and to compel Defendants to

11 post notice of the June 2018 Order in all immigration detention facilities in the Ninth Circuit. (Id.

12 at 3.) The Court denied the motion, finding that Plaintiffs’ reading of the certified class was too

13 broad and that Plaintiffs’ request to compel posting of the June 2018 Order was premature because

14 Plaintiffs did not allege that Defendants had failed to schedule bond hearings in accordance with

15 the Order. (Dkt. No. 56 at 7.)

16

On April 7, 2020, the Ninth Circuit affirmed the Court’s June 2018 Order. See Aleman

17 Gonzalez v. Barr, 955 F.3d 762 (9th Cir. 2020).

18 II. March 2019 Order

19

The March 2019 Order requires Defendants, in pertinent part, to provide periodic reports

20 (“Class Lists”) every 60 days containing the following information for each class member: (1) full

21 first and last name; (2) alien number; (3) base city name; (4) hearing location name; (5) book in

22 date; (6) date of 180th day in detention; (7) detention facility; (8) attorney of record (if any); (9)

23 attorney firm (if any); (10) bond decision date; and (11) bond decision outcome. (Dkt. No. 64 at ¶

24 2.) The Order further requires Defendants to provide a cover email with each Class List that

25 provides any additional information needed to explain the lack of a bond decision date entry

26 and/or bond decision outcome entry, or any other clarifying information. (Id.)

27

The March 2019 Order also directed Defendants to provide the Court and Plaintiffs a

28 declaration addressing six categories of information detailing the method by which Defendants 2

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United States District Court Northern District of California

1 identify class members; specifically:

2

(1) the criteria with which Defendants analyze the cases of detained

individuals to determine whether they fall within the class definition;

3

(2) the process by which Defendants review the cases of detained

individuals to determine whether they fall within the class definition;

4

(3) any automated procedures, including software programs, that

Defendants utilize in order to identify class members; (4) any manual

5

procedures that Defendants utilize in order to identify class members;

(5) the process by which Defendants notify individuals that they will

6

be receiving a bond hearing; and (6) the measures taken by

Defendants to ensure that no class member is left unidentified and/or

7

fails to receive a bond hearing.

8 (Id. at ¶ 4.)

9 III. April 2019 Report

10

In response to the March 2019 Order, Defendants filed a status report on April 10, 2019

11 (“April 2019 Report”). (Dkt. No. 67). The Report includes the supporting declarations of: April

12 Jacques, Assistant Field Office Director with U.S. Department of Homeland Security (“DHS”),

13 U.S. Immigration Customs and Enforcement (“ICE”), Enforcement and Removal Operations

14 (“ERO”), San Francisco Field Office, (Dkt. No. 67-1, Ex. A (“Jacques Decl.”)); Brian Muirhead,

15 Supervisory Detention and Deportation Officer with DHS, ICE, ERO, Seattle Field Office, (Dkt.

16 No. 67-2, Ex. B (“Muirhead Decl.”)); Jamison Matuszewski, Deputy Field Office Director, DHS,

17 ICE, ERO, San Diego Field Office, (Dkt. No. 67-3, Ex. C (“Matuszewski Decl.”)); John E. Cantu,

18 Officer in Charge, DHS, ICE, ERO, Florence Detention Center in Florence, Arizona, (Dkt. No.

19 67-4, Ex. D (“Cantu Decl.”)); Matthew Cantrell, Supervisory Detention and Deportation Officer,

20 DHS, ICE, ERO, Salt Lake City Field Office, (Dkt. No. 67-5, Ex. E (“Cantrell Decl.”)); and Mary

21 Cheng, Deputy Chief Immigration Judge, Executive Office for Immigration Review, (Dkt. No. 67-

22 6, Ex. F (“Cheng Decl.”)).

23

The April 2019 Report addresses the six categories of information specified in the March

24 2019 Order. First, as to the criteria with which Defendants analyze the cases of detainees to

25 determine whether they are class members, the Report explains:

26

Defendants identify class members to include aliens who are subject

to final administrative orders of removal; are currently held in

27

immigration detention under 8 U.S.C. § 1231(a)(6) within the

jurisdiction of the Ninth Circuit Court of Appeals; have been held in

28

immigration detention for at least 180 days; have not received an

3

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United States District Court Northern District of California

individualized bond hearing at which the Government has the burden

1

of justifying further detention; have a “live claim” before an

Immigration Court, the Board of Immigration Appeals, or a circuit

2

court of appeals; and whose release or removal is not imminent.

3 (Dkt. No. 67 at 3 (citing June 2018 Order; July 2018 Clarification Order; Jacques Decl. ¶ 4;

4 Muirhead Decl. ¶ 2; Matuszewski Decl. ¶ 4; Cantu Decl. ¶ 4; Cantrell Decl. ¶ 4).)

5

Second, as for the process by which Defendants review the cases of detained individuals to

6 determine whether they fall within the class definition, the Report explains that on a weekly basis

7 the ICE ERO office for each area of responsibility “that houses detainees within the Ninth Circuit

8 queries ICE electronic database systems to identify potential class members.” (Id. (citing Jacques

9 Decl. ¶ 6; Muirhead Decl. ¶ 4; Matuszewski Decl. ¶ 6; Cantu Decl. ¶ 6; Cantrell Decl. ¶ 6).) The

10 Report describes the process as follows:

11

Each ERO office first queries and produces a detention report through

the ENFORCE detention and removal modules within the

12

Enforcement Integrated Database . . . to identify potential class

members within its [area of responsibility]. To avoid multiple reports

13

of the same alien, ERO then deletes the names of the aliens previously

reported as class members. Id. ERO then reviews information in

14

ENFORCE to determine the case status of the remaining potential

class members. Id. If there is any uncertainty, ERO may search

15

additional ICE Office of Chief Counsel [(“OCC”)] and/or public

electronic databases, including Public Access to Court Electronic

16

Records (PACER), and/or confer with the ERO custody case officer

and ICE OCC or ICE Office of the Principal Legal Advisor

17

[(“OPLA”)] to identify potential class members. Id.

18

ERO then prepares an Excel spreadsheet identifying potential class

members and sends it to ICE OCC and/or ICE OPLA for review. Id.

19

ICE OCC and/or ICE OPLA then reviews the list of potential class

members for accuracy and legal sufficiency through ICE and/or

20

PACER databases and may consult with other ICE personnel.

Jacques Decl. ¶ 7; Muirhead Decl. ¶ 5; Matuszewski Decl. ¶ 7; Cantu

21

Decl. ¶ 7; Cantrell Decl. ¶ 7. On a weekly basis, ICE OCC and/or

ICE OPLA sends a final list of potential class members to the

22

Executive Office for Immigration Review . . . by electronic

transmission. Id.; Cheng Decl. ¶ 5. This list includes at least the

23

detainees’ names, alien numbers, and dates of book-in to detention to

enable the applicable immigration court to schedule Aleman Gonzalez

24

bond hearings for the identified class members by their 180th day of

detention. Cheng Decl. ¶ 5 25

26 (Dkt. No. 67 at 3-4.)

27

Third, as to any automated procedures, including software programs that Defendants

28 utilize in order to identify class members, the Report explains that: 4

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United States District Court Northern District of California

[t]here is no single automated procedure by which Defendants can

1

identify class members. Instead, identification is a manual process

that often requires ICE ERO to consult multiple databases and other

2

ICE offices, including ICE OCC and ICE OPLA. ICE ERO offices

utilize various software programs to gather the data necessary to

3

determine class membership, most notably the ENFORCE detention

and removal modules within [the Enforcement Integrated Database].

4

Jacques Decl. ¶ 6; Muirhead Decl. ¶ 4; Matuszewski Decl. ¶ 6; Cantu

Decl. ¶ 6; Cantrell Decl. ¶ 6. In some cases, ERO may also search

5

additional ICE OCC and/or public electronic databases, including

[PACER], and/or confer with the ERO custody case officer and ICE

6

OCC or ICE OPLA to identify potential class members. Id.

7 (Dkt. No. 67 at 4-5.)

8

Fourth, as to any manual procedures that Defendants utilize to identify class members, the

9 Report reiterates the manual processes described above. (Id. at 5.) Fifth, as to the process by

10 which Defendants notify class members that they will be receiving a bond hearing, the Report

11 explains that the Executive Office for Immigration Review notifies detainees “using the detention

12 facility mail system.” (Id. at 5 (citing Cheng Decl. ¶ 6).) Notice is also sent to counsel’s address

13 of record if a detainee is represented; counsel may also receive notice by telephone. (Id. at 5-6.)

14 Finally, as to measures taken by Defendants to ensure that no class member is left unidentified or

15 fails to receive a bond hearing, the Report explains:

16

In certain situations where class membership is unclear, ICE ERO

personnel will consult with legal counsel at ICE OCC or ICE OPLA.

17

Jacques Decl. ¶ 6; Muirhead Decl. ¶ 4; Matuszewski Decl. ¶ 6; Cantu

Decl. ¶ 6; Cantrell Decl. ¶ 6. When ERO offices prepare a list

18

identifying potential class members, ICE OCC and/or ICE OPLA then

reviews the list for accuracy and legal sufficiency through ICE and/or

19

PACER databases and may consult with other ICE personnel. Id.

Additionally, in some cases, detainees and/or their counsel of record

20

may request an Aleman Gonzalez bond hearing by motion to the

immigration court or in person while appearing before an immigration

21

judge. Cheng Decl. ¶ 7. In an abundance of caution, [Executive

Office for Immigration Review] personnel in these circumstances

22

may schedule the detainee promptly for a bond hearing to allow an

immigration judge to determine the individual’s eligibility for an

23

Aleman Gonzalez bond hearing at the hearing. Id.

24 (Dkt. No. 67 at 6.)

25 IV. Class Lists

26

Defendants have provided Plaintiffs seven Class Lists subsequent to the March 2019

27 Order. (See Dkt. Nos. 74-8, Exs. C-H (Class Lists dated May 13, 2019, July 11, 2019, September

28 9, 2019, November 8, 2019, January 7, 2020, March 7, 2020) (filed under seal) & 78-5, Ex. A 5

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1 (Class List dated May 6, 2020) (filed under seal).) The Class Lists include the headings required

2 under the March 2019 Order; specifically: (1) full first and last name; (2) alien number; (3) base

3 city name; (4) hearing location name; (5) book in date; (6) date of 180th day in detention; (7)

4 detention facility; (8) attorney of record (if any); (9) attorney firm (if any); (10) bond decision

5 date; and (11) bond decision outcome. (Compare id. with Dkt. No. 64 at ¶ 2.) In connection with

6 the Class Lists, Defendants included cover emails providing additional information regarding the

7 bond hearings and status of some class members. (See Dkt. Nos. 75-4, Exs. I-N; & 79-2, Ex. B

8 (redacted versions of documents filed under seal).)

9

DISCUSSION

10 I. Motion to Amend June 2018 Order

11

Plaintiffs seek to amend the June 2018 Order to require that Defendants “(1) schedule bond

12 hearings for eligible class members to take place within 7 days of the class members’ 180th day of

13 detention; (2) notify class members and their counsel of the scheduled bond hearing by the class

14 members’ 165th day in detention, and; (3) explain any delay for class members with bond decision

15 dates that are 7 days or more after their 180th day of detention.” (Dkt. No. 81 at 7.) Plaintiffs also

16 renew their previous request that Defendants post notice of the preliminary injunction in all

17 immigration detention facilities in the Ninth Circuit. (Dkt. No. 75 at 5.) Plaintiffs base their

18 renewed request on Defendants’ purported “pattern of failing to identify class members and

19 delaying the scheduling of bond hearings.” (Id.)

20

Defendants oppose the request to amend the June 2018 Order on the grounds that the

21 additional requirements are unnecessary “because Defendants are working in good faith to identify

22 class members and provide them with bond hearings as promptly as possible.” (Dkt. 79 at 4.)

23 Defendants also assert that the additional requirements sought are excessively burdensome.

24

Before addressing whether amendment is warranted, the Court denies Plaintiffs’ request to

25 require Defendants to “notify class members and their counsel of the scheduled bond hearing by

26 the class members’ 165th day in detention,” (see Dkt. No. 81 at 7), because a detainee is not a

27 class member until the individual reaches his or her 180th day in detention. Indeed, in denying

28 Plaintiffs’ previous motion to enforce the June 2018 Order the Court emphasized that “the class 6

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1 includes only those individuals detained pursuant to section 1231(a)(6) for six months or longer

2 who have not received a bond hearing.” (See Dtk. No. 56 at 4.) Because Plaintiffs’ requested

3 amendment involves individuals who may not become class members, the amendment is not

4 necessary to ensure that class members—those detained for 180 days or longer—receive bond

5 hearings.

6

A. Scheduling Bond Hearings and Explaining Delays

7

As for requiring Defendants to schedule bond hearings within 7 days of a class member’s

8 180th day in detention, the Court concludes that such amendment is not necessary because

9 Defendants demonstrate that in 88% of cases within the last 12 months class members received a

10 bond hearing within 15 days of entering the class. (See Dkt. No. 79 at 8 n.5 (citing Combined

11 Class List Chart identifying 301 class members included in Defendants’ “six most recent class

12 lists” (Dkt. No. 78-8, Ex. C (filed under seal)).) Providing bond hearings to 88% of class

13 members within 15 days of class eligibility does not evince a “pattern” of failing to timely identify

14 class members and schedule bond hearings. It instead shows Defendants’ good faith attempts to

15 comply with the June 2018 preliminary injunction within the confines of a system that is not

16 immune to human error and delay based on the “availability of immigration court dockets,

17 interpreter availability, and availability of the parties and their representatives.” (See Dkt. No. 79

18 at 8.) Indeed, for some delays beyond 15 days the Combined Class List Chart includes

19 explanations such as “data error,” “inadvertent clerical error by agency staff,” and requests for

20 continuance by class members or their counsel. (See Dkt. No. 78-8, Ex. C at 6-7, 9-13.) Such

21 delays would exist regardless of any injunctive requirements this Court could issue.

22

That said, Defendants’ demonstrated ability to hold bond hearings for the vast majority of

23 class members within 15 days of their 180th day of detention shows that it is reasonable to require

24 Defendants to provide an explanation when it is unable to do so. This is especially true given that

25 Defendants’ Combined Class List does not include explanations for the delay in granting bond

26 hearings to 15 out of the 35 class members who received bond hearings between 16 and 113 days

27 after meeting class eligibility. (See Dkt. No. 78-8, Ex. C.) Defendants should explain such delays

28 because doing so will help Defendants identify and mitigate issues in timely identifying class 7

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1 members and scheduling them for bond hearings in accordance with the June 2018 Order.

2

Accordingly, the June 2018 Order is amended to require Defendants to provide Plaintiffs

3 an explanation in all cases where Defendants are unable to hold a bond hearing within 15 days of a

4 class member’s 180th day of detention. That explanation may be provided in the cover email that

5 accompanies the Class List.

6

B. Posting Notice of the Preliminary Injunction

7

In support of their renewed request to compel Defendants to post notice of the preliminary

8 injunction at immigration detention facilities within the Ninth Circuit, Plaintiffs assert that

9 Defendants’ documented failure to timely identify class members due to a data error in some

10 instances or automatically schedule others for bond hearings upon their 180th day in detention

11 demonstrates that the “request is no longer premature.” (Dkt. No. 75 at 17-18; see also Dkt. No.

12 75-5, Ex. S (Proposed Notice).)2 Defendants oppose the request, in part because Plaintiffs

13 demonstrate only delays in providing the required bond hearings in all but one instance, and the

14 lone exception involved an individual who “fell out of the class and had already been removed

15 before a bond hearing could be held.” (Dkt. No. 79 at 17.) Defendants further assert that “the

16 posting of public notices is unnecessary in this case because Defendants are proactively

17 identifying potential members of the class and automatically scheduling them for bond hearings

18 once they become class members.” (Id.) The Court disagrees.

19

Defendants’ own submissions indicate that in some cases class members’ bond hearings

20 were significantly delayed by over a month—and in one case over three months—due to “data

21 error[s]” or “inadvertent clerical error[s].” (See Dkt. No. 78-8, Ex. C at 6-7, 9-10, 12-13.) In two

22 other cases, bond hearings were delayed by over three months with no explanation. (See id. at 8.)

23 The Court does not expect Defendants to implement the preliminary injunction to perfection;

24 delays and inadvertent errors will occur despite Defendants’ good faith efforts to “automatically”

25 identify class members and schedule them for bond hearings. That said, it is conceivable that

26

27 2 Plaintiffs’ citation to “ECF No. 64-2 at ¶ 5-12” for the proposition that “Defendants have fully

28

failed to identify a number of class members” is erroneous. (See Dkt. Nos. 75 at 18; see also Dkt. No. 81 at 14.) There is no such document on the Court’s docket.

8

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1 posting Plaintiffs’ proposed notice of the preliminary injunction will alert class members to their

2 rights under the June 2018 Order and help mitigate the delays caused by inadvertent errors in

3 identifying class members. Further, requiring Defendants to post notice of the preliminary

4 injunction is a minimal burden that is outweighed by the risk of harm in significantly delaying a

5 class member’s right to a bond hearing upon his or her 180th day in detention.

6

Defendants assert that posting notice is “an inefficient and ineffective way to facilitate

7 compliance with [the] . . . injunction” because the class definition is complex and “it is difficult to

8 imagine that pro se detainees would be able to self-identify class membership.” (Dkt. No. 79 at

9 18.) Thus, Defendants argue, there is “substantial risk that posting public notices would only

10 invite confusion if detainees mistakenly identify themselves as class members and ERO officers,

11 ICE attorneys, and immigration judges are forced to address and deny erroneous claims of class

12 membership and improper requests for bond hearings from individuals who are not class

13 members.” (Id.) Defendants overstate that risk in relation to the harm to class members who are

14 not timely identified as such.

15

First, Plaintiffs’ proposed notice states the requirements for class membership, (see Dkt.

16 No. 75-5, Ex. S at 24), such that a reasonable individual would know whether or not they are class

17 eligible. If a detainee mistakenly believes that he or she is a class member and requests a bond

18 hearing on those grounds, an ERO Officer should be able to quickly dispose of such requests by

19 utilizing the same initial method for identifying class members described in Defendants’ April

20 2019 Report. Second, and more importantly, the burden of addressing an erroneous request for a

21 bond hearing is significantly outweighed by the harm in delaying—in some documented instances

22 by months—a class member’s right to a bond hearing upon their 180th day in detention.

23

Accordingly, the June 2018 is amended to require Defendants to post Plaintiffs’ proposed

24 notice of the preliminary injunction in all immigration detention facilities in the Ninth Circuit.

25 The proposed notice must be amended to read, in pertinent part: “2) You are presently detained

26 under 8 U.S.C. § 1231(a)(6) and have a live claim challenging your detention.” Defendants shall

27 post the notice within 30 days of this Order.

28 // 9

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1 II. Motion to Enforce March 2019 Order

2

Plaintiffs move to enforce the March 2019 Order and require Defendants to: (1) “provide

3 Plaintiffs with bond decision outcomes, namely whether a bond was granted or denied, for 197

4 class members”; and (2) “provide Plaintiffs with critical information regarding implementation of

5 the PI and identification of class members” and “include [Defendants’] attorneys at the initial

6 stage of class member identification.” (Dkt. No. 75 at 4, 14, 16.) The Court addresses

7 Defendants’ purported failures to comply with the March 2019 Order in turn.

8

A. Bond Decision Outcomes

9

Plaintiffs argue that the Class Lists provided subsequent to the March 2019 Order are

10 deficient because they do not provide the bond decision outcomes for 197 class members. Based

11 on Defendants’ purported failure to comply, Plaintiffs ask the Court to require Defendants to

12 provide the following “‘bond decision outcome data, i.e., whether a bond was granted or denied

13 for all 197 current class members without such data and [for] all future class members.” (Dkt. No.

14 81 at 17.)

15

The Class Lists contain a heading entitled “Bond Decision,” “Bond Decision Outcome,” or

16 “Bond Decision Description” that lists one of the following for each class member with a “Bond

17 Decision Date”: “No Bond,” “No Action,” “No Change,” “New Amount,” “Own Recognizance,”

18 or “No Jurisdiction.” (See Dkt. Nos. 74-8, Exs. C-H & 78-5, Ex. A.) In response to questions

19 from Plaintiffs’ counsel regarding the “No Action” and “No Change” entries, Defendants’ counsel

20 explained in an August 2019 email:

21

a. “No Action” is the code used to indicate that no action was taken

on the bond request. This could happen before, during or at the

22

conclusion of the bond hearing. However, this does not preclude

respondent from having another bond hearing after that date, which is

23

why in many cases, . . . there was a subsequent bond hearing.

24

b. “No Change” means that the IJ has made no change to the previous

custody determination which may been made by either DHS or an IJ. 25

26 (Dkt. No. 75-6, Ex. T at 3.)

27

Plaintiffs acknowledge Defendants’ explanations, and recognize that since the March 2019

28 Order “Defendants have readily included the bond decision outcome for the majority (70%) of 10

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1 class members, with ‘New Amount’ and ‘No Bond’ codes.” (Dkt. No. 81 at 8.) Plaintiffs argue,

2 however, that the “No Action” and “No Change” entries are not “bond decision outcomes”

3 because they do not indicate whether bond was granted or denied. The Court addresses the

4 challenged entries in turn.

5

First, the Court rejects Plaintiffs’ assertion that the March 2019 Order requires Defendants

6 to indicate whether bond was granted or denied. Instead, the Order requires only that Defendants

7 provide a “bond decision outcome,” and the “No Change” entry satisfies that requirement because

8 it means precisely what it says—the class member will continue to be detained under the terms set

9 before the bond hearing. In other words, the class member is in custody under certain terms at the

10 time of the bond hearing and “No Change” clearly indicates the IJ’s decision that the class

11 member will remain in custody under those same terms after the bond hearing. Thus, the Court is

12 satisfied that the “No Change” entry complies with the March 2019 Order because it provides a

13 definitive “outcome.”

14

Plaintiffs’ argument to the contrary is unavailing. Plaintiffs assert that the “No Change”

15 entry “fails to comply with the Court’s order to provide the ‘bond decision outcome,’” because it

16 “does not show the outcome of the initial custody decision that the [IJ] has declined to change.”

17 (Dkt. No. 81 at 9.) However, the March 2019 Order does not require Defendants to provide

18 information regarding a class member’s previous custody determination. And more importantly, it

19 is unclear how such information is even relevant to effectuating the purpose of the June 2018

20 preliminary injunction—providing individualized bond hearings to detainees who meet class

21 eligibility.

22

Second, as for the “No Action” entry, Plaintiffs argue that it fails to indicate “whether the

23 class member ultimately received a bond hearing and whether a bond was granted or denied.”

24 (Dkt. No. 75 at 8.) The Court agrees that the “No Action” entry does not constitute a “bond

25 decision outcome” absent clarifying information regarding an actual outcome. In some cases

26 Defendants have provided additional information in the cover emails that accompany the Class

27 Lists regarding class members whose bond decision is entered as “No Action.” However,

28 Defendants’ most recent Class List and cover email for May 2020 demonstrate that the additional 11

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1 information is insufficient. For example, for one class member with a “No Action” code

2 Defendants’ cover email states: “A bond hearing was held on 2/28/20 but continued at the request

3 of respondent’s counsel. The hearing was reset and held on 3/20/20.” (Dkt. No. 79-2, Ex. B at 2

4 (redacted version of document filed under seal).) Merely indicating that the bond hearing was

5 held on a certain date does not provide a bond decision outcome, and Defendants’ explanation to

6 Plaintiffs that the “No Action” code “indicate[s] that no action was taken on the bond request” is

7 meaningless without information explaining why no action was taken or whether the class member

8 was scheduled for a subsequent hearing that resulted in an actual bond decision outcome. Indeed,

9 Defendants’ explanation to Plaintiffs suggests that in some instances the “No Action” code may

10 reflect that the bond hearing was not actually held on the date indicated on the Class List. (See

11 Dkt. No. 75-6, Ex. T at 3 (noting that “no action” may be taken before, during or at the conclusion

12 of the bond hearing[,]” and “in many cases, . . . there was a subsequent bond hearing”) (emphasis

13 added).). Simply put, “No Action” does not constitute a “bond decision outcome” as required

14 under the March 2019 Order.

15

Defendants’ opposition asserts that, in general, no action is taken on a bond request “if, for

16 example, the individual sought and received a continuance or asked to withdraw the bond,

17 enabling the class member to pursue bond at a later time.” (Dkt. No. 79 at 12.) That is a

18 reasonable explanation. However, Defendants must provide that information in their cover emails

19 for every class member with a “No Action” code. A review of Defendants’ Class Lists and

20 corresponding cover emails indicates that Defendants have not done so.

21

At the June 2018 hearing, Defendants noted that the Court’s March 2019 Order adopted

22 Defendants’ proposed language regarding the content of the Class Lists verbatim; thus,

23 Defendants argued that they did not expect that the Court would find that the “No Action” code

24 was insufficient. Defendants are correct that the following language from the March 2019 Order

25 is taken directly from Defendants’ proposed order, filed March 7, 2019:

26

For each individual identified on the Class List described in paragraph

1, above, Defendants shall include the following information in

27

addition to the individual’s full first and last name: (1) Alien number;

(2) Base City name; (3) Hearing location name; (4) Book in date; (5)

28

Date of 180th day in detention; (6) Detention facility; (7) Attorney of

12

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Record (if any); (8) Attorney Firm (if any); (9) Bond decision date;

1

and (10) Bond decision outcome. If any additional information is

needed to explain the lack of bond decision date entry and/or bond

2

decision outcome entry, or otherwise, Defendants will provide a cover

email with the report including such additional information. 3

4 (Compare Dkt. No. 63-1 at 3 (Defendants’ March 7, 2019 proposed order) with Dkt. No. 64 at ¶ 2

5 (Court’s March 2019 Order).) However, neither Defendants’ briefing filed in connection with

6 their March 2019 proposed order nor the proposed order itself references the “No Action” code.

7 (See generally Dkt. Nos. 63 & 63-1.) Further, the parties did not discuss the “No Action” code at

8 the January 2019 case management conference during which the Court addressed Plaintiffs’

9 request for periodic compliance reports. (See generally Dkt. No. 61.) In other words, this is the

10 first time the Court has been asked to assess the “No Action” code. Thus, any “expectations”

11 Defendants had regarding its validity in relation to the Court’s March 2019 Order are irrelevant.

12

As stating “No Action” does not provide a bond decision outcome, and as the March 2019

13 order requires Defendant to provide a cover email with additional information for every entry that

14 lacks a bond decision outcome, Defendant has not complied with the March 2019 Order.

15 Accordingly, Defendants must provide Plaintiffs with an updated list of every class member

16 whose bond decision outcome was entered as “No Action.” The list must provide the actual bond

17 decision outcome for each of those class members (i.e., “No Bond,” “No Change,” “New

18 Amount,” “Own Recognizance,” or “No Jurisdiction”). Going forward, Defendants’ Class Lists

19 must provide clarifying information for every “No Action” entry, including whether the class

20 member has been rescheduled for a bond hearing and if so, the date of that hearing. Defendants

21 shall then include that class member on the Class List that covers the time period when he or she

22 receives an actual bond decision outcome.

23

B. Information Regarding Class Identification and Preliminary Injunction

Implementation 24

25

Plaintiffs assert that Defendants’ April 2019 Report and supporting declarations submitted

26 in response to the March 2019 Order:

27

omit critical information on the process by which class members are

identified, including: precise criteria by which class members are

28

identified within the referenced databases; the process and criteria by

13

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which ERO officers, who are not attorneys, identify potential class

1

members; the process and criteria by which ICE OCC and/or ICE

OPLA review the list of potential class members prepared by ERO;

2

and how Defendants track and identify if and when their detention

authority has shifted to Section 1231(a)(6), the primary marker by

3

which class members are identified and provided bond hearings.

4 (Dkt. No. 75 at 15.) Thus, Plaintiffs argue that Defendants must be ordered to provide the

5 following: (1) “any remedial, supplemental, and prior agency guidance regarding the

6 implementation of the Court’s injunction and orders”; (2) “the criteria by which class members are

7 identified within the referenced databases, the process and criteria by which ERO officers identify

8 potential class members, the process and criteria by which ICE OCC and/or ICE OPLA review the

9 list of potential class members prepared by ERO, and the process by which Defendants identify

10 that their detention authority has shifted to Section 1231(a)(6)”; and (3) “attorney oversight of

11 ERO’s production of each potential class membership list to ensure that no class members are

12 erroneously not scheduled for hearings.” (Dkt. No. 81 at 17.)

13

In determining whether the requested information is necessary, the Court must first

14 determine whether Defendants’ April 2019 Report fails to provide the information specified in the

15 March 2019 Order. It does not. The Report and supporting declarations are sufficiently detailed

16 and provide the requisite information; specifically, Defendants describe the criteria used for

17 determining class membership, (see Dkt. No. 67 at 3), the processes by which Defendants both

18 review the cases of detained individuals to determine whether they are class members and notify

19 those individuals that they will receive a bond hearing, (see id. at 3-5), and the measures

20 Defendants take to ensure that class members are identified, (see id. at 6). That those measures in

21 practice are not completely error proof does not indicate that Defendants have failed to comply

22 with the Court’s March 2019 Order.

23

Accordingly, the Court denies Plaintiffs’ motion to enforce the March 2019 Order to the

24 extent it seeks to require that Defendants produce additional information regarding its processes

25 for identifying class members and implementing the preliminary injunction. Further, the Court

26 denies the motion to the extent it seeks to require Defendants to provide “attorney oversight of

27 ERO’s production of each potential class membership list” because the record shows that the vast

28 majority of class members have been identified and timely scheduled for bond hearings, and 14

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1 Plaintiffs fail to demonstrate a “pattern” of noncompliance with either the March 2019 Order or

2 the June 2018 Order warranting such further injunctive relief.

3 III. Administrative Motions to Seal

4

Pursuant to Civil Local Rules 7-11 and 79-5, and the stipulated Protective Order in this

5 case, (Dkt. No. 41), both parties move to file under seal portions of their briefing and exhibits filed

6 in connection with the underlying motion to enforce. (Dkt. Nos. 74; 78; 80.) The information

7 consists of “the names and alien registration numbers . . . of absent class members who have not

8 publicly disclosed or authorized disclosure of [that] identifying information.” (Dkt. Nos. 74 & 80

9 at 3.) The Protective Order designates the material as confidential. (Dkt. No. 41 at ¶ 2.)

10

A party seeking to seal court filings must comply with the Civil Local Rules, which

11 provide that sealing is appropriate only where the requesting party “establishes that the document,

12 or portions thereof, are privileged, protectable as a trade secret or otherwise entitled to protection

13 under the law[,]” and narrowly tailors its requests only to sealable material and redacts the

14 documents accordingly. Civil L.R. 79-5(b),(d). Further, a party seeking to seal a document filed

15 in connection with a motion related to the merits of a case must overcome the “strong presumption

16 in favor of public access” to judicial records by meeting the “compelling reasons” standard.

17 Kamakana v. City and Cty. of Honolulu, 447 F.3d 1171, 1178-79 (9th Cir. 2006); see also Ctr. for

18 Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1098, 1101 (9th Cir. 2016) (noting that the

19 “compelling reasons” test applies “to most judicial records,” including documents attached to

20 nondispositive motions that are “more than tangentially related to the merits of a case”) (internal

21 quotation marks and citation omitted). Plaintiffs’ motions to seal “[a]ssum[e] the ‘compelling

22 reason’ standard applies here,” (see Dkt. Nos. 74 & 80 at 4), and the Court agrees that Plaintiffs’

23 underlying motion is related to the merits of the case.

24

In support of sealing, Plaintiffs submit the declaration of Plaintiffs’ counsel Jesse

25 Newmark, who attests that “[m]any of the absent class members . . . are in withholding only

26 proceedings, and therefore particularly vulnerable to harm from disclosure of their identities.”

27 (Dkt. No. 74-1 at ¶ 8 & 80-1 at ¶ 7.) Thus, Plaintiffs assert that compelling reasons justify sealing

28 the identifying information of the absent class members because public disclosure could subject 15

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1 them to harm and retaliation in their home countries if deported. (Dkt. Nos. 74 & 80 at 4-5.)

2 Defendants submit the declaration of counsel Matthew Seamon, who attests that the parties met

3 and conferred and agree that the information should be filed under sealed. (Dkt. No. 78-1 at ¶ 6.)

4

The Court agrees that sealing is warranted. The parties’ declarations in support of sealing

5 comply with the Civil Local Rules and the proposed redactions are narrowly tailored to only the

6 names and alien registration numbers of absent class members, many of whom are in withholding

7 only proceedings. Compelling reasons justify sealing that identifying information because the

8 information has no bearing on the merits of this action, and the public’s interest in the identities of

9 absent class members is minimal to non-exist and outweighed by the risk of harm to those

10 individuals given that many are seeking asylum.

11

Accordingly, the Court grants the parties’ administrative motions to seal in full.

12

CONCLUSION

13

For the reasons set forth above, the Court GRANTS IN PART and DENIES IN PART

14 Plaintiffs’ motion. The June 2018 Order is amended to require Defendants to provide an

15 explanation in every instance in which a class member’s bond hearing is not held within 15 days

16 after the class member’s 180th day of detention. Further, within 30 days, Defendants shall post

17 Plaintiffs’ proposed notice of the preliminary injunction (with the amended language discussed

18 above) in all immigration detention facilities in the Ninth Circuit.

19

Defendants must also provide Plaintiffs a list containing updated bond decision outcomes

20 for every class member whose bond decision was initially entered as “No Action.” Defendants’

21 future Class Lists must provide clarifying information for every “No Action” entry, including

22 whether or not the class member has been rescheduled for a bond hearing and if so, the date of that

23 hearing. Defendants shall then include that class member on the Class List that covers the time

24 period when he or she receives an actual bond decision outcome.

25 //

26 //

27 //

28 // 16

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1

Plaintiffs’ motion is denied in all other respects.

2

IT IS SO ORDERED.

3

Dated: June 19, 2020

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JACQUELINE SCOTT CORLEY United States Magistrate Judge

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