Case 2:18-cv-00928-MJP Document 1 Filed 06/25/18 Page 1 of 28

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UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

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AT SEATTLE

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11 Yolany PADILLA, Ibis GUZMAN, and
Blanca ORANTES;
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Plaintiffs-Petitioners,

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v.

15 U.S. Immigration and Customs Enforcement 16 (“ICE”); U.S. Department of Homeland
Security (“DHS”); U.S. Customs and Border 17 Protection (“CBP”); U.S. Citizenship and
Immigration Services (“USCIS”); U.S. 18 Department of Health and Human Services
(“HHS”); Office of Refugee Resettlement 19 (“ORR”); Thomas Homan, Acting Director of 20 ICE; Kirstjen Nielsen, Secretary of DHS;
Kevin K. McAleenan, Acting Commissioner 21 of CBP; L. Francis Cissna, Director of
USCIS; Alex M. Azar II, Secretary of HHS; 22 Scott Lloyd, Director of ORR; and Marc J. 23 Moore, Seattle Field Office Director, ICE;

Case No. 2:18-cv-928
COMPLAINT—CLASS ACTION FOR INJUNCTIVE AND DECLARATORY RELIEF

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Defendants-Respondents.

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INTRODUCTION

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1. This case challenges the United States government’s forcible separation of

3 parents from their minor children for no legitimate reason and notwithstanding the threat of
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irreparable psychological damage that separation causes children.
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2. This case also challenges the United States government’s practice of prolonging
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7 the separation and detention of families by failing to expeditiously conduct credible fear

8 interviews, which trigger the detained immigrants’ rights to appear before an immigration

9 judge to present their asylum claims and to request individual custody hearings to seek their

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release.
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3.
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Plaintiffs Ibis Guzman, Blanca Orantes, and Yolany Padilla are parents who

13 entered the United Sates with their children seeking asylum. In May 2018, federal immigration

14 authorities took their children away from them and then transferred Plaintiffs to immigration

15 detention in Washington State, thousands of miles from their children. The government has
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refused to release them or even allow them to be reunited with their children during the
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pendency of their civil immigration proceedings.
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4. The government separated Ms. Guzman from her five-year-old son, R.G.,
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20 transferring and detaining them in facilities thousands of miles from each other.

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5. The government separated Ms. Orantes from her eight-year-old son, A.M.,

22 transferring and detaining them in facilities thousands of miles from each other.

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6. The government separated Ms. Padilla from her six-year-old son, J.A.,
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transferring and detaining them in facilities thousands of miles from each other.
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7. Mss. Guzman, Orantes, and Padilla bring this action on behalf of themselves and

27 other similarly situated, asking this Court to order the government to reunite them with their

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1 children, from whom they have been separated now for more than a month. None of them have

2 been permitted to visit or even see their children.

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8. The United States government has not provided these mothers with a credible

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fear interview. Thus, they have been unable to even initiate their applications for asylum or to
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request a custody hearing before an immigration judge to petition for their release. Moreover,
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7 there is no established framework of time in which they can expect to be reunited with their

8 children.

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9. These mothers bring this action on behalf of the dozens of other parents detained

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in Washington State whom the government has forcibly separated from their children and
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continues to separate. Like Mss. Guzman, Orantes, and Padilla, these parents have fled
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13 persecution and are seeking asylum in the United States. Without any assertions of abuse,

14 neglect, or parental unfitness, and with no hearings of any kind, the government is detaining

15 these parents on the other side of the country from their young children, who have been left to
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face an uncertain future frightened and alone. Many of these parents have been unable to even
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speak to their children since their separation.
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10. Forced separation from parents causes severe trauma to children, especially
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20 those who are already traumatized and are fleeing persecution in their home countries. The

21 resulting cognitive and emotional damage can be permanent.

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11. Such forced separation is also deeply damaging to parents, many of whom have

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little to no information regarding the well-being of their children and fear they may never see
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them again.
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12. Defendants have ample ways to keep parents together with their children. They

27 may parole them into the country, or release them on bond or supervised conditions as they

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1 pursue the often-lengthy asylum process, pursuant to the government’s prior policy. If,

2 however, the government insists on continuing to detain these parents and children, it must at a

3 minimum detain them together in one of its immigration family detention centers.
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13. Moreover, if the government chooses to detain them, it must provide prompt
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credible fear interviews, affording the detained asylum seekers the opportunity to initiate the
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7 asylum process without suffering prolonged separation and detention.

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14. The Due Process Clause of the Fifth Amendment does not permit the

9 government to forcibly take minor children from their parents without a compelling
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justification. The Due Process Clause also prevents the government from separating these
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families without a hearing. That separation also violates the asylum statutes, which guarantee a
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13 meaningful right to apply for asylum, and the Administrative Procedure Act (APA), which

14 prohibits arbitrary government action. Additionally, the government’s unreasonable delay in

15 providing credible fear interviews for plaintiff mothers and class members further prolongs

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their separation from their children and the detention of the family, constituting agency action
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unlawfully withheld or unreasonably delayed under the APA.
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JURISDICTION
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15. This case arises under the Fifth Amendment to the United States Constitution,

21 federal asylum statutes, and the APA. The court has jurisdiction under 28 U.S.C. § 1331

22 (federal question jurisdiction); 28 U.S.C. § 2241 (habeas jurisdiction); and Art. I., § 9, cl. 2 of

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the United States Constitution (“Suspension Clause”). Plaintiffs are in custody for purposes of
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habeas jurisdiction.
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VENUE

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16. Venue is proper under 28 U.S.C. § 1391 because Mss. Guzman, Orantes, and

2 Padilla are detained within this District and a substantial portion of the relevant facts occurred

3 within this District, including the continued separation of Plaintiffs from their children.
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Defendant DHS, with its local field office located in Tukwila, Washington, is responsible for
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determining whether Plaintiffs will be released, and how soon their cases will be submitted for
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7 hearings before the immigration court.

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PARTIES

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17.

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R.G.
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18.
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13 A.M.

Plaintiff Guzman is a citizen of Honduras. She is the mother of five-year-old Plaintiff Orantes is a citizen of El Salvador. She is the mother of eight-year-old

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19. Plaintiff Padilla is a citizen of Honduras. She is the mother of six-year-old J.A.

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20. Defendant U.S. Department of Homeland Security (“DHS”) has responsibility

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for enforcing the immigration laws of the United States.
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21. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is the sub-
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agency of DHS that is responsible for carrying out removal orders and overseeing immigration
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20 detention.

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22. Defendant U.S. Customs and Border Protection (“CBP”) is the sub-agency of

22 DHS that is responsible for the initial processing and detention of noncitizens who are

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apprehended near the U.S. border, including referring them for a credible fear interview by an
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asylum officer.
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23. Defendant U.S. Citizenship and Immigration Services (“USCIS”) is the sub-

27 agency of DHS that, through its asylum officers, conducts interviews of certain individuals

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1 apprehended at the border to determine whether they have a credible fear of persecution and

2 should be permitted to apply for asylum.

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24. Defendant U.S. Department of Health and Human Services (“HHS”) is a

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department of the executive branch of the U.S. government which has been delegated with
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authority over “unaccompanied” noncitizen children.
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25. Defendant Office of Refugee Resettlement (“ORR”) is the component of HHS

8 which provides care of and placement for “unaccompanied” noncitizen children.

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26. Defendant Thomas Homan is sued in his official capacity as the Director of ICE,

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and is a legal custodian of Plaintiffs.
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27. Defendant Marc J. Moore is sued in his official capacity as the ICE Seattle Field
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13 Office Director, and is a legal custodian of Plaintiffs.

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28. Defendant Kirstjen Nielsen, is sued in her official capacity as the Secretary of

15 DHS. In this capacity, she directs each of the component agencies within DHS: ICE, USCIS,

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and CBP. As a result, Defendant Nielsen has responsibility for the administration of the
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immigration laws pursuant to 8 U.S.C. § 1103, is empowered to grant asylum or other relief,
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and is a legal custodian of the Plaintiffs.
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29. Defendant L. Francis Cissna is sued in his official capacity as the Director of

21 USCIS.

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30. Defendant Kevin K. McAleenan is sued in his official capacity as the

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Commissioner of CBP.
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31. Defendant Alex M. Azar II is sued in his official capacity as the Secretary of
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26 HHS.

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32. Defendant Scott Lloyd is sued in his official capacity as the Director of ORR.

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FACTS

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33. Over the last few months, the government has separated hundreds of migrant

3 families after they were apprehended together at the border.
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34. Upon information and belief, 2,342 children have been separated from their
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parents at or near the U.S.-Mexico border since early May 2018 alone. See, e.g., Camila
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7 Domonoske & Richard Gonzales, What We Know: Family Separation And ‘Zero Tolerance’ At

8 The Border, NPR NEWS (June 19, 2018), https://www.npr.org/2018/06/19/621065383/what-we-

9 know-family-separation-and-zero-tolerance-at-the-border (last visited June 20, 2018).

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35.
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asylum.
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The vast majority of these migrant families fled persecution and are seeking

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36. The government has no legitimate purpose in separating these families while

14 they go through their civil immigration proceedings.

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37. There are no allegations that the parents are unfit or abusing their children in any

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way, yet the government has forcibly separated them from their children and detained the
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children, generally thousands of miles away, in facilities for “unaccompanied” children. The
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parents, for their part, have been transferred to detention facilities around the country to await
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20 their civil immigration proceedings. The plaintiff mothers and proposed class members in this

21 case were transferred to Washington State—thousands of miles from their initial apprehension.

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38. Some parents were separated from their children when they arrived at a port of

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entry seeking asylum.
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39. Upon information and belief, many parents were initially separated from their
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26 children in order to face federal criminal prosecution for entering the country without

27 permission. Indeed, in April 2018, Attorney General Sessions announced a “zero-tolerance

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1 policy” requiring all U.S. Attorney’s Offices along the U.S.-Mexico border to prioritize the

2 prosecution of offenses under 8 U.S.C. § 1325(a) (improper entry). See Dep’t of Justice, Office

3 of Public Affairs, “Attorney General Announces Zero-Tolerance Policy for Criminal Illegal
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Entry,” Press Release No. 18-417 (Apr. 6, 2018), available at
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https://www.justice.gov/opa/pr/attorney-general-announces-zero-tolerance-policy-criminal-
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7 illegal-entry (last visited June 22, 2018); U.S. Customs and Border Protection, “Zero Tolerance

8 Immigration Prosecutions – Family Fact Sheet” (June 15, 2018), available at

9 https://www.cbp.gov/newsroom/zero-tolerance-immigration-prosecutions-family-fact-sheet
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(“The Attorney General directed United States Attorneys on the Southwest Border to prosecute
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all amenable adults who illegally enter the country, including those accompanied by their
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13 children, for 8 U.S.C. § 1325(a), illegal entry.”).

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40. Thus, many of these parents were charged and prosecuted with the misdemeanor

15 crime of improper entry under 8 U.S.C. § 1325. Most were sentenced to time served, generally
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three to four days.
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41. However, after the parents served their time on their federal convictions, the
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government did not reunite them with their children. Instead, it held the parents for several
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20 more days or weeks at facilities on the southern border before transferring them to federal

21 prisons across the country, keeping them imprisoned while waiting to begin processing them

22 for civil immigration proceedings. The parents have not been permitted to even visit or see their
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children. Many have not been permitted to speak with their children.
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42. The federal government has continued to separate the children from their parents
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26 for several weeks—all the while failing to provide parents their credible fear interviews in

27 order to continue pursuing their asylum claim, and failing to provide them information on when

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1 they will appear in front of an immigration judge, much less when they will be reunited with

2 their children.

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43. What is more, news reports have documented instances of parents who have

4
been released from immigration detention—or been deported—but have not been reunited with
5
their children. See, e.g., Eli Rosenberg, Woman sues to get her son, 7, back from Border Patrol,
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7 THE MERCURY NEWS (June 20, 2018), https://www.mercurynews.com/2018/06/20/woman-

8 sues-to-get-her-son-7-back-from-border-patrol/ (last visited June 21, 2018); Miriam Jordan, ‘I

9 Can’t Go Without My Son,’ a Mother Pleaded as She Was Deported to Guatemala, N.Y. TIMES

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(June 17, 2018) https://www.nytimes.com/2018/06/17/us/immigration-deported-parents.html
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(last visited June 21, 2018).
12

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44. Government officials have confirmed that the policy of family separation is

14 intended to deter individuals from unlawfully entering the United States with their children.

15 See, e.g., Philip Bump, Here are the administration officials who have said that family
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separation is meant as a deterrent, THE WASHINGTON POST (June 19, 2018)
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https://www.washingtonpost.com/news/politics/wp/2018/06/19/here-are-the-administration-
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officials-who-have-said-that-family-separation-is-meant-as-a-
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20 deterrent/?utm_term=.bbb784318bc0 (last visited June 22, 2018) (collecting public statements

21 by White House Chief of Staff John F. Kelly, Attorney General Sessions, and Defendant

22 Nielsen); see also Rafael Bernal, DHS Head Confirms He’s Considering Separating Families
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at Border, THE HILL (Mar. 6, 2017), http://thehill.com/latino/322608-dhs-head-confirms-hes-
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considering-separating-families-at-border (last visited June 25, 2018); Caitlin Dickerson & Ron
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26 Nixon, Trump Administration Considers Separating Families to Combat Illegal Immigration,

27 N.Y. TIMES (Dec. 21, 2017),

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1 https://www.nytimes.com/2017/12/21/us/trump-immigrant-families-separate.html (last visited

2 June 22, 2018).

3

45. News sources have reported that holding noncitizen children separated from

4
their parents in newly created “tent city” facilities is twice as costly as detaining the children
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together with their parents. Julia Ainsley, Trump admin’s ‘tent cities’ cost more than keeping
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7 migrant kids with parents, NBC News (June 20, 2018),

8 https://www.nbcnews.com/politics/congress/house-rejects-conservative-immigration-bill-

9 delays-vote-gop-compromise-measure-n885406 (last visited June 21, 2018).
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46. After much public outcry, on June 20, 2018, President Donald J. Trump issued
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an Executive Order (EO) addressing the policy and practice of family separation. EO 13841,
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13 “Affording Congress an Opportunity to Address Family Separation,” § 1, 83 FR 29435 (June

14 20, 2018). The EO announces that it is the “policy of this Administration to maintain family

15 unity, including by detaining alien families together where appropriate and consistent with law
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and available resources.” Id.
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47. The EO further calls for the Secretary of DHS to “maintain custody of alien
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families during the pendency of any criminal improper entry or immigration proceedings
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20 involving their members.” Id. § 3(e).

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48. Accordingly, under the EO, families will be detained throughout lengthy civil

22 immigration proceedings—that is, for an indefinite period.

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49. However, the EO does not prohibit the separation of families during the
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pendency of immigration proceedings.
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50. Moreover, it does not address what action, if any, the government will take with

27 respect to families the government has already forcibly separated. In fact, news sources report

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1 that “more than 2,300 children who have already been separated from their parents under the

2 president’s ‘zero tolerance’ policy will not be immediately reunited with their families while
3 the adults remain in federal custody during their immigration proceedings.” Michael D. Shear,
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Abby Goodnough, & Maggie Haberman, Trump Retreats on Separating Families, but
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Thousands Will Remain Apart, N.Y. TIMES (June 20, 2018), https://www.msn.com/en-
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7 us/news/us/trump-retreats-on-separating-families-but-thousands-will-remain-apart/ar-

8 AAyVnxm (last visited June 22, 2018) (quoting Kenneth Wolfe, a spokesman for the

9 Administration for Children and Families within Defendant HHS, as stating that “[t]here will
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not be a grandfathering of existing cases”).
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51. Indeed, upon information and belief, the government does not have a plan in
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13 place for reuniting these parents with their children. Jonathan Blitzer, The Government Has No
14 Plan for Reuniting the Immigrant Families It Is Tearing Apart, THE NEW YORKER (June 18,

15 2018), https://www.newyorker.com/news/news-desk/the-government-has-no-plan-for-

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reuniting-the-immigrant-families-it-is-tearing-apart (last visited June 22, 2018) (noting that no

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protocols are in place to track parents and children or for reuniting them).1
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52. On June 23, 2018, DHS issued a Memorandum instructing that the government

20 has taken “the following steps toward reunification:

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Implemented an identification mechanism to ensure on-going tracking of

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linked family members throughout the detention and removal process;

Designated detention locations for separated parents and will enhance current

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processes to ensure communication with children in HHS custody;

Worked closely with foreign consulates to ensure that travel documents are

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issued for both the parent and child at time of removal; and

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Prior administrations detained migrant families, but did not have a practice of forcibly separating fit

parents from their young children. Instead, families were generally released upon demonstrating a credible fear of 26 persecution. They were then able to live with family or community members while they awaited the immigration

court to adjudicate their asylum applications. In cases where the family was not released, they were housed 27 together with their children at government-operated family detention centers.

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Coordinated with HHS for the reuniting of the child prior to the parents’

departure from the United States.”

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None of these steps include any plans to reunite the children with their parents unless they are
3

4 scheduled for departure from the United States. See Dep’t of Homeland Sec., “Fact Sheet:

5 Zero-Tolerance Prosecution and Family Reunification” (June 23, 2018), available at

6 https://www.dhs.gov/news/2018/06/23/fact-sheet-zero-tolerance-prosecution-and-family-
7
reunification (last visited June 25, 2018).
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53. There is overwhelming medical evidence that the separation of a young child
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from his or her parent will have a devastating negative impact on the child’s well-being,
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11 especially where there are other traumatic factors at work, and that this damage can be

12 permanent.

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54. The American Association of Pediatrics has repeatedly denounced any policy or

14
practice of separating migrant children from their parents, noting in a January 2018 letter
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signed with more than 200 other organizations that: “Forced separation disrupts the parent-
16

17 child relationship and puts children at increased risk for both physical and mental illness. . . .

18 [T]he psychological distress, anxiety, and depression associated with separation from a parent

19 would follow the children well after the immediate period of separation—even after the
20
eventual reunification with a parent or other family.” Letter to Kirstjen M. Nielsen, Secretary of
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U.S. Dep’t of Homeland Sec. (Jan. 16, 2018), available at
22
23 https://static1.squarespace.com/static/597ab5f3bebafb0a625aaf45/t/5a5e55cf0d9297a44bbb8d3

24 e/1516131791958/2018_01_16+Child+Welfare+Juvenile+Justice+Opposition+to+Parent+Chil

25 d+Separation+Plan.pdf (last visited June 22, 2018).
26

27

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1

55. The harm caused by this forced separation is compounded by the government’s

2 delay in processing parents’ claims for asylum, which continues to unreasonably prolong those

3 parents’ separation from their children and their detention.
4
56. Upon first interacting with federal immigration officials—often CBP officers or
5
Border Patrol agents—the overwhelming majority of these parents expressed their need for
6
7 protection or intention to seek asylum. The law requires that Defendant CBP then refer the

8 asylum-seekers to Defendant USCIS to conduct an interview to assess whether they possess a

9 credible fear of persecution. See 8 U.S.C. § 1225(b)(1)(A)(ii); 8 C.F.R. § 235.3(b)(4).
10
57. If an asylum officer makes a positive determination, the asylum-seeker is
11
referred to an immigration judge for a hearing on the petition for asylum. See 8 C.F.R.
12
13 § 208.30(f). If still detained, the asylum-seeker is also then entitled to petition for their release

14 at an individual custody hearing before an immigration judge. 8 C.F.R. § 1236.1(d).

15

58. If the asylum officer does not find the expressed fear of persecution to be

16
credible, the noncitizen may seek review of the adverse credible fear determination before an
17
immigration judge. See 8 C.F.R. § 208.30(g).
18
59. Thus, Plaintiffs must first receive their credible fear interview before they are
19

20 entitled to present their asylum claims, along with any petition for individual custody hearings,

21 to an immigration judge. Yet Defendants have unreasonably delayed providing this requisite

22 first step.
23
60. Moreover, despite Defendants’ assertion that “a parent who is ordered removed
24
from the U.S. may request that his or her minor child accompany them,” Defendants carve out
25
26 an exception for those deemed to be a “criminal alien.” See Dep’t of Homeland Sec., “Fact

27 Sheet: Zero-Tolerance Prosecution and Family Reunification” (June 23, 2018), available at

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1 https://www.dhs.gov/news/2018/06/23/fact-sheet-zero-tolerance-prosecution-and-family-

2 reunification (last visited June 25, 2018) (“There will be a small number of children who were

3 separated for reasons other than zero tolerance that will remain separated: generally only if the

4
familial relationship cannot be confirmed, we believe the adult is a threat to the safety of the
5
child, or the adult is a criminal alien.”).
6

7

61. This exception could be applied to all who are charged for improper entry under

8 8 U.S.C. § 1325, in effect nullifying any assurance that the government will not physically

9 deport the parent without reunifying them with their child first.
10
Plaintiff Ibis Guzman
11
62. Ms. Guzman and her five-year-old son R.G. are one of the many families that
12
13 have recently been separated by the government.

14

63. Ms. Guzman and her son are seeking asylum in the United States.

15

64. On or about May 16, 2018, Ms. Guzman and her son arrived in the United

16
States. When they were apprehended by Border Patrol agents for entering without inspection,
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Ms. Guzman informed them that she and R.G. are seeking asylum.
18
65. Ms. Guzman and her son were transported to a holding facility known as an
19

20 “hielera,” or freezer, because of the freezing temperatures of the rooms. Ms. Guzman was then

21 questioned by Border Patrol officers.

22

66. After initial questioning, an officer came and forcibly took Ms. Guzman’s son,

23
falsely informing her she would be able to see him again in three days.
24
67. After those three days, Ms. Guzman was transferred to another CBP facility. She
25

26 inquired with officers about reunification with her son. They told her they did not know

27 anything about the boy’s whereabouts.

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68. Ms. Guzman was then transferred to a facility in Laredo, Texas, where she was

2 detained without any knowledge of the whereabouts of her child and without any means to

3 contact him. She did not receive any information about him during this time, despite her
4
repeated attempts to obtain such information.
5
69. About two weeks later, Ms. Guzman was transferred to the Federal Detention
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7 Center in SeaTac, Washington. After being held there for about another week, she was finally

8 informed her child had been placed with Baptist Child and Family Services in San Antonio,

9 Texas, thousands of miles from where she was being held. She was still unable to contact him.
10
70. On June 20, 2018, Ms. Guzman was transferred to the Northwest Detention
11
Center in Tacoma, Washington, where she continues to be held, separated from her minor
12
13 child.

14

71. Ms. Guzman has not yet received a credible fear interview.

15

72. Every day that R.G. is separated from his mother causes him greater emotional

16
and psychological harm and could potentially lead to permanent emotional trauma.
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73. Ms. Guzman is extremely distraught and depressed because of the separation
18
from her son, and cries when she speaks about him. She worries he is also experiencing anxiety
19

20 from the separation and may not be eating. In Honduras, she was a single mother and was with

21 her son almost constantly, so being apart from him affects her profoundly.

22

74. The government has no legitimate interest in separating Ms. Guzman and her

23
child.
24
75.
25

There has been no evidence, or even accusation, that R.G. was abused or

26 neglected by Ms. Guzman.

27

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1

76. There has been no evidence, or even accusation, that Ms. Guzman is a threat to

2 R.G.’s safety.

3

77. There has been no evidence, or even accusation, that Ms. Guzman is an unfit

4
parent or that she is not acting in the best interests of her child.
5
Plaintiff Blanca Orantes
6

7

78. Ms. Orantes and her eight-year-old son, A.M., also seek asylum in the United

8 States, and are also a family recently separated by the government.

9

79. On or around May 21, 2018, Ms. Orantes and A.M. entered the United States

10
without inspection. She immediately walked with her child to the CBP station to request
11
asylum, and was then apprehended by CBP officers.
12

13

80. Ms. Orantes and her son were transported to a CBP facility. Before entering the

14 building, the CBP officers led Ms. Orantes into a hielera with other adults, and her son into

15 another part of the station with other children.
16
81. Ms. Orantes was later interviewed by a CBP officer. At that time, another officer
17
brought A.M. to her and told her to “say goodbye” to him because they were being separated.
18
A.M. began crying and pleading Ms. Orantes not to leave. She has not seen her son since that
19
20 date.

21

82. On or around May 24, 2018, Ms. Orantes was handcuffed and taken to court,

22 where she pled guilty to improper entry under 8 U.S.C. § 1325 and was sentenced to time
23
served. She was then returned to her cell.
24
83. About nine days after this, Ms. Orantes was transported to the Federal Detention
25
26 Center in SeaTac, Washington.

27

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1

84. Ms. Orantes was not provided any information about her child until June 9th,

2 when an ICE officer handed her a slip of paper advising that her son was being held at

3 Children’s Home of Kingston, in Kingston, New York.
4
85. On June 20th, Ms. Orantes was transferred to the Northwest Detention Center in
5
Tacoma, Washington, where she is currently being held, still forcibly separated from her son. It
6
7 was not until that date—about a month after their separation—that she was finally able to speak

8 to A.M. To date, she has spoken to her son twice.

9

86. Ms. Orantes has not yet received a credible fear interview.

10
87. Every day that A.M. is separated from his mother causes him greater emotional
11
and psychological harm and could potentially lead to permanent emotional trauma.
12

13

88. Ms. Orantes is experiencing deep distress and mental pain because of the

14 separation from her son. She constantly feels hopeless and distraught, not knowing when she

15 will see her son again. Ms. Orantes is concerned about A.M.’s physical wellbeing and fears that

16
he may be feeling abandoned and isolated.
17
89. The government has no legitimate interest in separating Ms. Orantes and her
18
child.
19

20

90. There has been no evidence, or even accusation, that A.M. was abused or

21 neglected by Ms. Orantes.

22

91. There has been no evidence, or even accusation, that Ms. Orates is a threat to

23
A.M.’s safety.
24
92. There has been no evidence, or even accusation, that Ms. Orantes is an unfit
25

26 parent or that she is not acting in the best interests of her child.

27

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1

Plaintiff Yolany Padilla

2

93. Ms. Padilla and her six-year-old son, J.A., also came to the United States

3 seeking asylum, and are one of the families recently separated by the government.
4
94. Ms. Padilla and her son fled Honduras and arrived in the U.S. on or about May
5
18, 2018. They were arrested by a Border Patrol agent as they were making their way to a
6
7 nearby port of entry.

8

95. When they arrived at the port of entry, an officer there announced to her and the

9 rest of the group that the adults and children were going to be separated. The children old
10
enough to understand the officer began to cry. J.A. clutched his mother’s shirt and said, “no,
11
mommy, I don’t want to go.” Ms. Padilla reassured her son that any separation would be short,
12
13 and that everything would be okay. She was able to stay with her son until they were

14 transferred later that day to a hielera, where they were forcibly separated without explanation.

15

96. Ms. Padilla saw her son just one more time about a day later, when the

16
immigration officers took a photograph of the two together. That was the last time she saw J.A.
17
97. While they were in that facility, Ms. Padilla informed the immigration officers
18
that she and her son were afraid to return to Honduras.
19

20

98. About three days later, Ms. Padilla was transferred to another facility in Laredo,

21 Texas. The officers in that facility took her son’s birth certificate from her. When she asked for

22 it back, she was told that the immigration authorities had it. No one has returned Ms. Padilla’s
23
son’s birth certificate to her.
24
99. About twelve days later, Ms. Padilla was transferred to the Federal Detention
25
26 Center in SeaTac, Washington.

27

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1

100. Ms. Padilla was told that she would be criminally charged, but was not taken to

2 a court or presented before a judge.

3

101. Despite repeated inquiries into her son’s whereabouts, Ms. Padilla was not

4
provided any information about him until about a month into her detention, when the Honduran
5
consul visited the detention center and she explained she had no news of her six-year-old son.
6

7 Soon thereafter, she was given a piece of paper saying he was in a place called Cayuga Center

8 in New York, along with a phone number. She was unable to contact him, however, because

9 she did not have money to make a call.
10
102. She was finally able to speak to him a day later, when someone gave her the
11
opportunity to call him for ten minutes. During the call, the boy mostly cried quietly. Ms.
12
13 Padilla has been unable to call him again.

14

103. Ms. Padilla has not yet received a credible fear interview.

15

104. Every day that J.A. is separated from his mother causes him greater emotional

16
and psychological harm and could potentially lead to permanent emotional trauma.
17
105. Ms. Padilla is extremely distraught and depressed because of the separation from
18
her son, from whom she had never been separated before. She cries when she speaks about
19

20 him. She worries about his emotional well-being and whether he is eating.

21

106. The government has no legitimate interest in separating Ms. Padilla and her

22 child.

23
107. There has been no evidence, or even accusation, that J.A. was abused or
24
neglected by Ms. Padilla.
25

26

108. There has been no evidence, or even accusation, that Ms. Padilla is a threat to

27 J.A.’s safety.

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1

109. There has been no evidence, or even accusation, that Ms. Padilla is an unfit

2 parent or that she is not acting in the best interests of her child.

3
CLASS ALLEGATIONS
4

5

110. Mss. Guzman, Orantes, and Padilla bring this action under Federal Rule of Civil

6 Procedure 23(b)(2) on behalf of themselves and a class of all other persons similarly situated

7 who are or will be detained by DHS in Washington State.

8
111. Plaintiffs seek to represent the following class:
9

10

All parents who (1) are or will be detained in immigration custody by the

Department of Homeland Security in Washington State and (2) have been

11

separated from a minor child by DHS officials, absent a demonstration in a

hearing that the parent is unfit or presents a danger to the child.
12

13

112. Plaintiffs are each adequate representatives of the proposed class.

14

113. The proposed class satisfies the requirements of Rule 23(a)(1) because the class

15
is so numerous that joinder of all members is impracticable.
16
114. Upon information and belief, there are at least forty-six parents that currently fit
17

18 within the class.

19

115. The class meets the commonality requirements of Federal Rule of Civil

20 Procedure 23(a)(2). The members of the class are subject to a common practice by Defendants:
21
forcibly separating detained parents from their minor children while they are being processed in
22
civil immigration proceedings. By definition, all class members have experienced that practice,
23
and none has been given an adequate hearing regarding the separation. The lawsuit raises
24
25 numerous questions of law common to members of the proposed class, including: whether

26 Defendants’ family separation practice violates class members’ substantive due process right to

27 family integrity; whether the practice violates class members’ procedural due process rights;

28

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1 whether the practice violates the federal asylum statute; whether these separations are arbitrary

2 and capricious under the APA; and whether Defendants’ delay in providing credible fear

3 interviews constitutes agency action unlawfully withheld or unreasonably delayed under the
4
APA.
5
116. The proposed class meets the typicality requirements of Federal Rule of Civil
6
7 Procedure 23(a)(3), because the claims of the representative Plaintiffs are typical of the claims

8 of the class. Mss. Guzman, Orantes, and Padilla and the proposed class members are all

9 individuals who have had their children forcibly taken away from them despite there being no
10
proven allegations of abuse, neglect, or any other danger or unfitness. They have all been
11
transferred to detention in Washington State solely for the purpose of their civil immigration
12
13 proceedings. Plaintiffs and the proposed class also share the same legal claims, which assert the

14 same substantive and procedural rights under the Due Process Clause, the asylum statute, and

15 the APA.
16
117. The proposed class meets the adequacy requirements of Federal Rule of Civil
17
Procedure 23(a)(4). The representative Plaintiffs seek the same relief as the other members of
18
the class—namely, an order that they be expeditiously reunified with their children, whether
19
20 through release or in family detention facilities; that Defendants promptly provide credible fear

21 interviews; that no parent be deported without their child, absent a hearing before a court where

22 the government demonstrates that it is not in the child’s best interest to be reunified with their
23
parent. In defending their own rights, Mss. Guzman, Orantes, and Padilla will defend the rights
24
of all proposed class members fairly and adequately.
25

26

27

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1

118. The proposed class is represented by counsel from the Northwest Immigrant

2 Rights Project. Counsel have extensive experience litigating class action lawsuits and other

3 complex cases in federal court, including civil rights lawsuits on behalf of noncitizens.
4
119. The members of the class are readily ascertainable through Defendants’ records.
5
120. The proposed class also satisfies Federal Rule of Civil Procedure 23(b)(2).
6
7 Defendants have acted on grounds generally applicable to the class by unlawfully separating

8 parents from their young children while they are placed in civil immigration proceedings.

9 Defendants have also unreasonably delayed in conducting class members’ credible fear

10
interviews. Injunctive and declaratory relief is thus appropriate with respect to the class as a
11
whole.
12

13

CAUSES OF ACTION

14

COUNT I

15

(Violation of Due Process)

16
(Against All Defendants Except USCIS Defendants)
17
121. All of the foregoing allegations are repeated and re-alleged as though fully set
18
forth herein.
19

20

122. The Due Process Clause of the Fifth Amendment applies to all “persons” on

21 United States soil and thus applies to Mss. Guzman, Orantes, and Padilla and their children as

22 well as all proposed class members.
23
123. Plaintiffs, their children, and all class members have a liberty interest under the
24
Due Process Clause in remaining together as a family.
25

26

27

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1

124. The separation of the class members from their children violates substantive due

2 process because it furthers no legitimate purpose, much less a compelling governmental

3 interest.

4
125. The separation of the class members from their children also violates procedural
5
due process because it was undertaken without any hearing.
6

7

COUNT II

8

(Administrative Procedure Act—Arbitrary and Capricious Practice)

9

(Against All Defendants Except USCIS Defendants)

10
126. All of the foregoing allegations are repeated and re-alleged as though fully set
11
forth herein.
12

13

127. The APA prohibits agency action that is arbitrary and capricious and contrary to

14 constitutional right.

15

128. Defendants’ separation of Plaintiffs and the other class members from their

16
children without a compelling justification and without a mechanism, protocol, or system to
17
guarantee their reunification is final agency action that is arbitrary and capricious. It
18
accordingly violates the APA. 5 U.S.C. § 706(2)(A).
19

20

COUNT III

21 (Administrative Procedure Act—Agency Action Unlawfully Withheld or Unreasonably Delayed)
22

23

(Against Defendants DHS, CBP, ICE, and USCIS)

24

129. All of the foregoing allegations are repeated and re-alleged as though fully set

25 forth herein.

26
130. Defendant DHS and its sub-agencies are required to conduct an interview to

27
assess whether an asylum-seeker has a credible fear of persecution. This obligation is triggered
28

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1 when Defendants learn of an individual’s fear of persecution. See 8 U.S.C. § 1225(b)(1)(A)(ii).

2 Asylum-seekers are only permitted to raise their claim before an immigration judge after the

3 asylum officer conducts the credible fear interview. See 8 C.F.R. § 208.30(f), (g).

4
131. Conducting a credible fear interview is a discrete, final agency action that DHS
5
is required to take.
6

7

132. Under the APA, an agency has a duty to conclude matters presented to it within

8 a “reasonable time.” 5 U.S.C. § 555(b).

9

133. Defendants’ failure to expeditiously conduct a credible fear interview when they

10
have detained the asylum-seekers and separated them from their children constitutes “an
11
agency action unlawfully withheld or unreasonably delayed” under the APA, see 5 U.S.C.
12

13 § 706(1), for such delay prolongs the baseless separation between the parents and their

14 children, and extends the time all are detained.

15

COUNT IV

16
(Violation of Asylum Statute)
17
134. All of the foregoing allegations are repeated and re-alleged as though fully set
18
forth herein.
19

20

135. Under United States law, noncitizens fleeing persecution shall have the

21 opportunity to apply for asylum in the United States. See 8 U.S.C. § 1225(b)(1) (expedited

22 removal); 8 C.F.R. §§ 235.3(b)(4), 208.30, and 1003.42; 8 U.S.C. § 1158(a)(1). Plaintiffs have
23
a private right of action to vindicate their right to apply for asylum.
24
136. Defendants’ separation of Plaintiffs and the other asylum-seeking class members
25
26 from their children violates federal asylum law, because it infringes on their ability to pursue

27 their asylum claims.

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1

PRAYER FOR RELIEF

2

Plaintiffs request that the Court enter a judgment against Defendants and award the

3 following relief:

4
A. Certify a class of all parents who (1) are or will be detained in immigration custody
5
by the Department of Homeland Security in Washington State and (2) have been
6

7

separated from a minor child by DHS officials, absent a demonstration in a hearing

8

that the parent is unfit or presents a danger to the child.

9

B. Name Mss. Guzman, Orantes, and Padilla as representatives of the class, and

10
appoint their counsel as class counsel;
11
C. Declare the separation of Mss. Guzman, Orantes, and Padilla and all the other class
12

13

members from their children unlawful;

14

D. Preliminarily and permanently enjoin Defendants from continuing to separate Mss.

15

Guzman, Orantes, and Padilla and all the other class members by detaining them in

16
separate locations from where their children are held;
17
E. Where Plaintiffs’ children have not already been released, order Defendants to
18
expeditiously release Mss. Guzman, Orantes, and Padilla and all the other class
19

20

members along with their children, or to immediately reunite the parents with their

21

children in a facility where they may remain together;

22

F. Order Defendants to conduct credible fear interviews for Mss. Guzman, Orantes,

23
and Padilla and all the other class members who have not received one within seven
24
days of the Court’s order;
25

26

G. Declare that Defendants have an obligation to provide credible fear interviews for

27

persons subject to expedited removal under 8 U.S.C. § 1225 within 10 days of any

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Case 2:18-cv-00928-MJP Document 1 Filed 06/25/18 Page 26 of 28

1

individual requesting asylum or expressing a fear of persecution or torture if that

2

person remains detained;

3

H. Enjoin Defendants from removing Mss. Guzman, Orantes, and Padilla, and all the

4
other class members, from the country until they are reunited with their children, in
5
the event they are not permitted to remain in the United States, absent the parent’s
6

7

permission or a hearing before a court where the government demonstrates that it is

8

not in the child’s best interest to be reunified with their parent;

9

I. Require Defendants to pay reasonable attorneys’ fees and costs;

10
J. Order all other relief that is just and proper.
11

12 Dated this 25th day of June, 2018.
13
14 Respectfully submitted,

15 NORTHWEST IMMIGRANT RIGHTS PROJECT

16 s/ Matt Adams 17 Matt Adams, WSBA No. 28287
615 Second Avenue, Suite 400 18 Seattle, WA 98104
(206) 957-8611 19 matt@nwirp.org
20
s/ Glenda M. Aldana Madrid 21 Glenda M. Aldana Madrid, WSBA No. 46987
615 Second Avenue, Suite 400 22 Seattle, WA 98104
(206) 957-8646 23 glenda@nwirp.org
24
s/ Leila Kang 25 Leila Kang, WSBA No. 48048
615 Second Avenue, Suite 400 26 Seattle, WA 98104 27 (206) 957-8608
leila@nwirp.org
28
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1
2 Attorneys for Plaintiffs
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Case 2:18-cv-00928-MJP Document 1 Filed 06/25/18 Page 28 of 28

1

CERTIFICATE OF SERVICE

2

I, Matt Adams, hereby certify that on June 25, 2018, I electronically filed the foregoing

3 with the Clerk of the Court using the CM/ECF system.
4

5 Dated: June 25, 2018.

6 s/ Matt Adams 7 Matt Adams, WSBA No. 28287
615 Second Avenue, Suite 400 8 Seattle, WA 98104
(206) 957-8608 9 matt@nwirp.org
10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 COMPLAINT - 27

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611

 
 4/12/2020

Query Reports

WAWD CM/ECF Version 1.3
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APPEAL

U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:18-cv-00928-MJP

Padilla et al v. US Immigration and Customs Enforcement et al Assigned to: Judge Marsha J. Pechman Case in other court: 9th Circuit Court of Appeals, 19-35565 Cause: 42:1983 Civil Rights Act

Date Filed: 06/25/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff Yolany Padilla

represented by Anand Balakrishnan AMERICAN CIVIL LIBERTIES UNION (NY) IMMIGRANTS' RIGHTS PROJECT 125 BROAD ST 18TH FLOOR NEW YORK, NY 10004-2400 212-284-7361 Email: abalakrishnan@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Benjamin J Hodges FOSTER GARVEY PC (SEA) 1111 3RD AVENUE, STE 3000 SEATTLE, WA 98101-3299 206-447-4400 Fax: 206-447-9700 Email: ben.hodges@foster.com TERMINATED: 09/06/2018 LEAD ATTORNEY

Glenda Melinda Aldana Madrid NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206-957-8646 Email: glenda@nwirp.org TERMINATED: 11/07/2018 LEAD ATTORNEY

Joanna Plichta Boisen FOSTER GARVEY PC (SEA) 1111 3RD AVENUE, STE 3000

https://ecf.wawd.uscourts.gov/cgi-bin/DktRpt.pl?266352081997612-L_1_0-1

1/32

4/12/2020

WAWD CM/ECF Version 1.3
SEATTLE, WA 98101-3299 206-447-3867 Email: joanna.boisen@foster.com TERMINATED: 09/06/2018 LEAD ATTORNEY

Judy Rabinovitz AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 BROAD ST 18TH FL NEW YORK, NY 10004 212-549-2618 Email: jrabinovitz@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin Ormiston FOSTER GARVEY PC (SEA) 1111 3RD AVENUE, STE 3000 SEATTLE, WA 98101-3299 206-447-4400 Email: kevin.ormiston@foster.com TERMINATED: 09/06/2018 LEAD ATTORNEY

Kristin Macleod-Ball AMERICAN IMMIGRATION COUNCIL 1318 BEACON STREET STE 18 BOSTON, MA 02446 857-305-3722 Email: kmacleod-ball@immcouncil.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Leila Kang NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206-957-8608 Email: leila@nwirp.org TERMINATED: 12/10/2019 LEAD ATTORNEY

https://ecf.wawd.uscourts.gov/cgi-bin/DktRpt.pl?266352081997612-L_1_0-1

Matt Adams NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104
2/32

4/12/2020

WAWD CM/ECF Version 1.3
206-957-8611 Email: matt@nwirp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Tan AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRATIONS' RIGHTS PROJECT 125 BROAD STREET FLOOR 18 NEW YORK, NY 10004 212-519-7848 Email: mtan@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas Fitzgerald Ahearne FOSTER PEPPER PLLC (SEA) 1111 THIRD AVE STE 3000 SEATTLE, WA 98101-3299 206-447-4400 Email: ahearne@foster.com TERMINATED: 09/06/2018 LEAD ATTORNEY

Trina Realmuto AMERICAN IMMIGRATION COUNCIL 1318 BEACON STREET STE 18 BROOKLINE, MA 02446 857-305-3600 Email: trealmuto@immcouncil.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

William F. Abrams SCHWABE WILLIAMSON & WYATT (SEA) 1420 5TH AVE STE 3400 SEATTLE, WA 98101-2339 206-622-1711 Email: WAbrams@SCHWABE.com TERMINATED: 09/06/2018 LEAD ATTORNEY

https://ecf.wawd.uscourts.gov/cgi-bin/DktRpt.pl?266352081997612-L_1_0-1

Aaron Korthuis NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400
3/32

4/12/2020
Plaintiff Ibis Guzman

WAWD CM/ECF Version 1.3
SEATTLE, WA 98104 206-816-3872 Email: aaron@nwirp.org ATTORNEY TO BE NOTICED
represented by Anand Balakrishnan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Benjamin J Hodges (See above for address) TERMINATED: 09/06/2018 LEAD ATTORNEY

Glenda Melinda Aldana Madrid (See above for address) TERMINATED: 11/07/2018 LEAD ATTORNEY

Joanna Plichta Boisen (See above for address) TERMINATED: 09/06/2018 LEAD ATTORNEY

Judy Rabinovitz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin Ormiston (See above for address) TERMINATED: 09/06/2018 LEAD ATTORNEY

Kristin Macleod-Ball (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Leila Kang (See above for address) TERMINATED: 12/10/2019 LEAD ATTORNEY

https://ecf.wawd.uscourts.gov/cgi-bin/DktRpt.pl?266352081997612-L_1_0-1

Michael Tan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
4/32

4/12/2020

WAWD CM/ECF Version 1.3

Thomas Fitzgerald Ahearne (See above for address) TERMINATED: 09/06/2018 LEAD ATTORNEY

Trina Realmuto (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

William F. Abrams (See above for address) TERMINATED: 09/06/2018 LEAD ATTORNEY

Aaron Korthuis (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Blanca Orantes

Matt Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Anand Balakrishnan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Benjamin J Hodges (See above for address) TERMINATED: 09/06/2018 LEAD ATTORNEY

Glenda Melinda Aldana Madrid (See above for address) TERMINATED: 11/07/2018 LEAD ATTORNEY

Joanna Plichta Boisen (See above for address) TERMINATED: 09/06/2018 LEAD ATTORNEY

Judy Rabinovitz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin Ormiston

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WAWD CM/ECF Version 1.3
(See above for address) TERMINATED: 09/06/2018 LEAD ATTORNEY

Kristin Macleod-Ball (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Leila Kang (See above for address) TERMINATED: 12/10/2019 LEAD ATTORNEY

Michael Tan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas Fitzgerald Ahearne (See above for address) TERMINATED: 09/06/2018 LEAD ATTORNEY

Trina Realmuto (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

William F. Abrams (See above for address) TERMINATED: 09/06/2018 LEAD ATTORNEY

Aaron Korthuis (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Baltazar Vasquez

Matt Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Anand Balakrishnan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Benjamin J Hodges (See above for address)

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WAWD CM/ECF Version 1.3
TERMINATED: 09/06/2018 LEAD ATTORNEY

Glenda Melinda Aldana Madrid (See above for address) TERMINATED: 11/07/2018 LEAD ATTORNEY

Joanna Plichta Boisen FOSTER PEPPER PLLC (SEA) 1111 THIRD AVE STE 3000 SEATTLE, WA 98101-3299 206-447-3867 Email: joanna.boisen@foster.com TERMINATED: 09/06/2018 LEAD ATTORNEY

Judy Rabinovitz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin Ormiston (See above for address) TERMINATED: 09/06/2018 LEAD ATTORNEY

Kristin Macleod-Ball (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Leila Kang (See above for address) TERMINATED: 12/10/2019 LEAD ATTORNEY

Michael Tan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas Fitzgerald Ahearne (See above for address) TERMINATED: 09/06/2018 LEAD ATTORNEY

Trina Realmuto (See above for address) LEAD ATTORNEY

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WAWD CM/ECF Version 1.3
PRO HAC VICE ATTORNEY TO BE NOTICED
William F. Abrams (See above for address) TERMINATED: 09/06/2018 LEAD ATTORNEY
Aaron Korthuis (See above for address) ATTORNEY TO BE NOTICED
Matt Adams (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
US Immigration and Customs Enforcement also known as ICE

represented by Archith Ramkumar US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-598-8060 Email: archith.ramkumar@usdoj.gov ATTORNEY TO BE NOTICED

Joseph A. Darrow US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-598-2445 Email: joseph.darrow@usdoj.gov TERMINATED: 07/09/2019

Lauren C. Bingham US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-616-4458 Email: lauren.c.bingham@usdoj.gov ATTORNEY TO BE NOTICED

Sarah S. Wilson US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868

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Defendant US Department of Homeland Security also known as DHS
Defendant US Customs and Border Protection also known as CBP
Defendant United States Citizenship and Immigration Services also known as USCIS

WAWD CM/ECF Version 1.3
BEN FRANKLIN STATION WASHINGTON, DC 20044 205-244-2140 Email: Sarah.Wilson2@usdoj.gov ATTORNEY TO BE NOTICED
represented by Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED
Joseph A. Darrow (See above for address) TERMINATED: 07/09/2019
Lauren C. Bingham (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Wilson (See above for address) ATTORNEY TO BE NOTICED
represented by Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED
Joseph A. Darrow (See above for address) TERMINATED: 07/09/2019
Lauren C. Bingham (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Wilson (See above for address) ATTORNEY TO BE NOTICED
represented by Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED
Joseph A. Darrow (See above for address) TERMINATED: 07/09/2019
Lauren C. Bingham (See above for address) ATTORNEY TO BE NOTICED

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Defendant US Department of Health and Human Services TERMINATED: 08/22/2018 also known as HHS TERMINATED: 08/22/2018

WAWD CM/ECF Version 1.3
Sarah S. Wilson (See above for address) ATTORNEY TO BE NOTICED
represented by Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED
Joseph A. Darrow (See above for address) TERMINATED: 07/09/2019

Defendant
Ofﬁce of Refugee Resettlement TERMINATED: 08/22/2018 also known as ORR TERMINATED: 08/22/2018

Lauren C. Bingham (See above for address) ATTORNEY TO BE NOTICED
represented by Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED
Joseph A. Darrow (See above for address) TERMINATED: 07/09/2019

Defendant
Thomas Homan Acting Director of ICE TERMINATED: 05/20/2019

Lauren C. Bingham (See above for address) ATTORNEY TO BE NOTICED
represented by Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED

Joseph A. Darrow (See above for address) TERMINATED: 07/09/2019

Lauren C. Bingham (See above for address) ATTORNEY TO BE NOTICED

Defendant
Kirstjen M Nielsen Secretary of DHS TERMINATED: 05/20/2019

Sarah S. Wilson (See above for address) ATTORNEY TO BE NOTICED
represented by Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED

Joseph A. Darrow

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Defendant Kevin K McAleenan Acting Commissioner of DHS
Defendant L Francis Cissna Director of USCIS
Defendant Alex M Azar, II Secretary of HHS TERMINATED: 08/22/2018

WAWD CM/ECF Version 1.3
(See above for address) TERMINATED: 07/09/2019
Lauren C. Bingham (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Wilson (See above for address) ATTORNEY TO BE NOTICED
represented by Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED
Joseph A. Darrow (See above for address) TERMINATED: 07/09/2019
Lauren C. Bingham (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Wilson (See above for address) ATTORNEY TO BE NOTICED
represented by Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED
Joseph A. Darrow (See above for address) TERMINATED: 07/09/2019
Lauren C. Bingham (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Wilson (See above for address) ATTORNEY TO BE NOTICED
represented by Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED
Joseph A. Darrow (See above for address) TERMINATED: 07/09/2019

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Defendant Scott Lloyd Director of ORR TERMINATED: 08/22/2018
Defendant Marc J Moore Seattle Field Ofﬁce Director, ICE TERMINATED: 05/20/2019
Defendant Executive Ofﬁce for Immigration Review
Defendant

WAWD CM/ECF Version 1.3
Lauren C. Bingham (See above for address) ATTORNEY TO BE NOTICED
represented by Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED
Joseph A. Darrow (See above for address) TERMINATED: 07/09/2019
Lauren C. Bingham (See above for address) ATTORNEY TO BE NOTICED
represented by Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED
Joseph A. Darrow (See above for address) TERMINATED: 07/09/2019
Lauren C. Bingham (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Wilson (See above for address) ATTORNEY TO BE NOTICED
represented by Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED
Joseph A. Darrow (See above for address) TERMINATED: 07/09/2019
Lauren C. Bingham (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Wilson (See above for address) ATTORNEY TO BE NOTICED

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Jefferson Beauregard Sessions, III United States Attorney General TERMINATED: 04/02/2019
Defendant Lowell Clark Warden of the Norwest Detention Center in Tacoma
Defendant Charles Ingram Warden of the Federal Detention Center in SeaTac, Washington
Defendant David Shinn Warden of the Federal Correctional Institute

WAWD CM/ECF Version 1.3
represented by Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED
Joseph A. Darrow (See above for address) TERMINATED: 07/09/2019
Lauren C. Bingham (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Wilson (See above for address) ATTORNEY TO BE NOTICED
represented by Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED
Joseph A. Darrow (See above for address) TERMINATED: 07/09/2019
Lauren C. Bingham (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Wilson (See above for address) ATTORNEY TO BE NOTICED
represented by Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED
Joseph A. Darrow (See above for address) TERMINATED: 07/09/2019
Lauren C. Bingham (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Wilson (See above for address) ATTORNEY TO BE NOTICED
represented by Archith Ramkumar (See above for address)

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in Victorville, CA
Defendant James Janecka Warden of the Adelanto Detention Facility
Defendant William P Barr United States Attorney General
Defendant Matthew T Albence Acting Deputy Director of ICE Defendant John P. Sanders Acting Commissioner of CBP Defendant Elizabeth Godfrey Acting Director of Seattle Field Ofﬁce, ICE

WAWD CM/ECF Version 1.3
ATTORNEY TO BE NOTICED
Joseph A. Darrow (See above for address) TERMINATED: 07/09/2019
Lauren C. Bingham (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Wilson (See above for address) ATTORNEY TO BE NOTICED
represented by Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Wilson (See above for address) ATTORNEY TO BE NOTICED
represented by Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED
Joseph A. Darrow (See above for address) TERMINATED: 07/09/2019
Lauren C. Bingham (See above for address) ATTORNEY TO BE NOTICED
Sarah S. Wilson (See above for address) ATTORNEY TO BE NOTICED

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Date Filed 06/25/2018
06/25/2018 06/25/2018
06/27/2018 06/27/2018 06/28/2018 06/28/2018

# Docket Text

WAWD CM/ECF Version 1.3

1 COMPLAINT against defendant(s) Alex M. Azar, II, L. Francis Cissna, Thomas Homan, Scott Lloyd, Kevin K. McAleenan, Marc J Moore, Kirstjen Nielsen, Ofﬁce of Refugee Resettlement, US Citizenship and Immigration Services, US Customs and Border Protection, US Department of Health and Human Services, US Department of Homeland Security, US Immigration and Customs Enforcement (Receipt # 0981-5369615) Attorney Matt Adams added to party Ibis Guzman(pty:pla), Attorney Matt Adams added to party Blanca Orantes(pty:pla), Attorney Matt Adams added to party Yolany Padilla(pty:pla), ﬁled by Ibis Guzman, Yolany Padilla, Blanca Orantes. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Azar, # 3 Summons CBP, # 4 Summons Cissna, # 5 Summons DHS, # 6 Summons HHS, # 7 Summons Homan, # 8 Summons ICE, # 9 Summons Lloyd, # 10 Summons McAleenan, # 11 Summons Moore, # 12 Summons Nielsen, # 13 Summons ORR, # 14 Summons USCIS)(Adams, Matt) (Entered: 06/25/2018)

Judge Marsha J. Pechman added. (ST) (Entered: 06/25/2018)

2 Summons(es) Electronically Issued as to defendant(s) Alex M. Azar, II, L. Francis Cissna, Thomas Homan, Scott Lloyd, Kevin K. McAleenan, Marc J Moore, Kirstjen Nielsen, Ofﬁce of Refugee Resettlement, US Citizenship and Immigration Services, US Customs and Border Protection, US Department of Health and Human Services, US Department of Homeland Security, US Immigration and Customs Enforcement, (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons, # 9 Summons, # 10 Summons, # 11 Summons, # 12 Summons)(ST) (Entered: 06/25/2018)

3 NOTICE of Appearance by attorney Thomas Fitzgerald Ahearne on behalf of Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla. (Ahearne, Thomas) (Entered: 06/27/2018)

4 APPLICATION OF ATTORNEY William F. Abrams FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla (Fee Paid) Receipt No. 0981-5375032 (Ahearne, Thomas) (Entered: 06/27/2018)

Attorneys Joanna Plichta,Benjamin J Hodges,and Kevin Ormiston added as counsel for Ibis Guzman, Blanca Orantes, and Yolany Padilla per 3 Notice of Appearance. (PM) (Entered: 06/28/2018)

5 ORDER re 4 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney William F. Abrams for Plaintiff Ibis Guzman, Blanca Orantes, and Yolany Padilla, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all ﬁlings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 06/28/2018)

07/12/2018

6 MINUTE ORDER reminding parties of the necessity to adhere to the formatting requirements set out in the Local Rules; speciﬁcally, the formatting requirements set out in LCR 10(c)(1). Authorized by Judge Marsha J. Pechman. (PM) (Entered: 07/12/2018)

07/12/2018

7 MINUTE ORDER clarifying to parties that all pleadings ﬁled before this Court must be in font which is 12 point Times New Roman or larger. Pleadings ﬁled in any other font type will not be accepted. Authorized by Judge Marsha J. Pechman. (PM) (Entered: 07/12/2018)

07/15/2018

8 AMENDED COMPLAINT against All Defendants, ﬁled by Yolany Padilla.(Ahearne, Thomas) (Entered: 07/15/2018)

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07/16/2018

WAWD CM/ECF Version 1.3
Party Baltazar Vasquez as Plaintiff; Executive Ofﬁce for Immigration Review, Jefferson Beauregard Sessions, III, Lowell Clark, Charles Ingram and David Shinn added as defendants per 8 Amended Complaint. (PM) (Entered: 07/16/2018)

07/16/2018

9 PRAECIPE TO ISSUE SUMMONS re 8 Amended Complaint by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez (Attachments: # 1 Summons Executive Ofﬁce for Immigration Review, # 2 Summons Jefferson Sessions, # 3 Summons Lowell Clark, # 4 Summons Charles Ingram, # 5 Summons David Shinn)(Ahearne, Thomas) (Entered: 07/16/2018)

07/17/2018

10 Summons(es) Electronically Issued as to defendant(s) Executive Ofﬁce for Immigration Review (main document), (Attachments: # 1 Summons Jefferson Beauregard Sessions, III, # 2 Summons Lowell Clark, # 3 Summons Charles Ingram, # 4 Summons David Shinn)(PM) (Entered: 07/17/2018)

07/30/2018

11 MOTION to Certify Class , ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 8/24/2018, (Ahearne, Thomas) (Entered: 07/30/2018)

07/30/2018

12 DECLARATION of Glenda M. Aldana Madrid ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 11 MOTION to Certify Class (Ahearne, Thomas) (Entered: 07/30/2018)

07/30/2018

13 DECLARATION of Ashleen O'Brien ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 11 MOTION to Certify Class (Ahearne, Thomas) (Entered: 07/30/2018)

07/30/2018

14 DECLARATION of Matt Adams ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 11 MOTION to Certify Class (Ahearne, Thomas) (Entered: 07/30/2018)

07/30/2018

15 DECLARATION of Thomas F. Ahearne ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 11 MOTION to Certify Class (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Ahearne, Thomas) (Entered: 07/30/2018)

07/30/2018

16 CERTIFICATE OF SERVICE by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 13 Declaration, 14 Declaration, 15 Declaration, 12 Declaration, 11 MOTION to Certify Class (Ahearne, Thomas) (Entered: 07/30/2018)

07/31/2018

17 ORDER REGARDING INITIAL DISCLOSURES AND JOINT STATUS REPORT Joint Status Report due by 9/11/2018, FRCP 26f Conference Deadline is 8/28/2018, Initial Disclosure Deadline is 9/4/2018, by Judge Marsha J. Pechman. (RM) (Entered: 07/31/2018)

07/31/2018

18 AFFIDAVIT of Mailing of Summons and Complaint to US Attorney's Ofﬁce; ICE; DHS; CBP; USCIS; HHS; ORR; Thomas Homan; Kirstjen Nielsen; Kevin K. McAleenan; L. Francis Cissna; Alex M. Azar II; Scott Lloyd; Marc J. Moore on 6/27/2018, ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez. (Adams, Matt) (Entered: 07/31/2018)

07/31/2018

19 AFFIDAVIT of Mailing of Summons and Complaint to EOIR; Jefferson B. Sessions III; Lowell Clark; Charles Ingram; David Shinn on 7/17/2018, ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez. (Adams, Matt) (Entered: 07/31/2018)

08/02/2018

20 NOTICE of Appearance by attorney Joseph A. Darrow on behalf of Defendants Alex M. Azar, II, L. Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Thomas Homan, Charles Ingram, Scott Lloyd, Kevin K. McAleenan, Marc J Moore,

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08/17/2018
08/17/2018 08/20/2018 08/21/2018
08/22/2018 08/22/2018
08/22/2018 08/22/2018 08/23/2018

WAWD CM/ECF Version 1.3
Kirstjen Nielsen, Ofﬁce of Refugee Resettlement, Jefferson Beauregard Sessions, III, David Shinn, US Citizenship and Immigration Services, US Customs and Border Protection, US Department of Health and Human Services, US Department of Homeland Security, US Immigration and Customs Enforcement. (Darrow, Joseph) (Entered: 08/02/2018)
21 NOTICE of Appearance by attorney Lauren C. Bingham on behalf of Defendants Alex M. Azar, II, L. Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Thomas Homan, Charles Ingram, Scott Lloyd, Kevin K. McAleenan, Marc J Moore, Kirstjen Nielsen, Ofﬁce of Refugee Resettlement, Jefferson Beauregard Sessions, III, David Shinn, US Citizenship and Immigration Services, US Customs and Border Protection, US Department of Health and Human Services, US Department of Homeland Security, US Immigration and Customs Enforcement. (Bingham, Lauren) (Entered: 08/17/2018)
22 NOTICE that the following is RE-NOTED: 11 MOTION to Certify Class . Filed by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez. Noting Date 9/28/2018, (Hodges, Benjamin) (Entered: 08/17/2018)
23 STIPULATION AND PROPOSED ORDER REGARDING MOTION BRIEFING SCHEDULE by parties (Hodges, Benjamin) (Entered: 08/20/2018)
24 STIPULATION AND ORDER per parties' 23 Stipulation. IT IS SO ORDERED. After ﬁling of the Second Amended Complaint on August 22, 2018, defendants' motion to dismiss will be due September 5 and noted for September 28. Plaintiffs' response to the motion to dismiss will be due September 24, and defendants' reply will be due September 28. Defendants' response to plaintiffs' pending renoted Motion for Class Certiﬁcation (Dkt. # 11 ) is due September 17, and plaintiffs' reply is due September 28. Signed by Judge Marsha J. Pechman. (PM) (Entered: 08/21/2018)
25 NOTICE Regarding Second Amended Complaint and Stipulation ; ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez. (Attachments: # 1 Exhibit Exhibit A & B)(Hodges, Benjamin) (Entered: 08/22/2018)
26 Second AMENDED COMPLAINT CLASS ACTION FOR INJUNCTIVE AND DECLARATORY RELIEF against defendant(s) L. Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Thomas Homan, Charles Ingram, Kevin K. McAleenan, Marc J Moore, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, David Shinn, US Citizenship and Immigration Services, US Customs and Border Protection, US Department of Homeland Security, US Immigration and Customs Enforcement, James Janecka, ﬁled by Ibis Guzman, Yolany Padilla, Blanca Orantes, Baltazar Vasquez. (Adams, Matt) (Entered: 08/22/2018)
27 APPLICATION OF ATTORNEY Trina Realmuto FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez (Fee Paid) Receipt No. 0981-5445052 (Adams, Matt) (Entered: 08/22/2018)
28 APPLICATION OF ATTORNEY Kristin Macleod-Ball FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez (Fee Paid) Receipt No. 0981-5445053 (Adams, Matt) (Entered: 08/22/2018)
29 ORDER re 27 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Trina Realmuto for Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, and Baltazar Vasquez, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all ﬁlings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be

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08/23/2018

WAWD CM/ECF Version 1.3
present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 08/23/2018)
30 ORDER re 28 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Kristin Macleod-Ball for Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, and Baltazar Vasquez, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all ﬁlings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 08/23/2018)

08/28/2018

31 JOINT STIPULATION AND ORDER REGARDING MOTION BRIEFING SCHEDULE signed by Judge Marsha J. Pechman. After ﬁling of the Second Amended Complaint on August 22, 2018, defendants' motion to dismiss will be due September 5 and noted for September 28. Plaintiffs' response to the motion to dismiss will be due September 24, and defendants' reply will be due September 28. Defendants' response to plaintiffs' pending renoted Motion for Class Certiﬁcation (Dkt. # 11 ) is due September 17, and plaintiffs' reply is due September 28. (PM) (Entered: 08/29/2018)

08/31/2018

32 MINUTE ORDER: At the request of the parties, an extension of time to ﬁle the joint status report is granted. The report will be due on 10/11/2018. All other FRCP 26-related dates are adjusted accordingly. Failure to adhere to these deadlines may result in sanctions, up to and including dismissal of this action. Authorized by Judge Marsha J. Pechman. (RM) (Entered: 08/31/2018)

09/02/2018

33 Stipulated MOTION Regarding Brieﬁng Schedule, ﬁled by Defendants L. Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Thomas Homan, Charles Ingram, James Janecka, Kevin K. McAleenan, Marc J Moore, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, David Shinn, US Citizenship and Immigration Services, US Customs and Border Protection, US Department of Homeland Security, US Immigration and Customs Enforcement. Noting Date 9/4/2018, (Bingham, Lauren) (Entered: 09/02/2018)

09/05/2018

34 STIPULATON AND ORDER regarding motion brieﬁng schedule re parties' 33 Stipulated Motion, signed by Judge Marsha J. Pechman. (SWT) (Entered: 09/05/2018)

09/06/2018

35 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Joanna Plichta Boisen; Benjamin J Hodges; Kevin Ormiston; William F. Abrams and Thomas Fitzgerald Ahearne for Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez. (Hodges, Benjamin) (Entered: 09/06/2018)

09/06/2018

36 MOTION to Dismiss , ﬁled by Defendants L. Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Thomas Homan, Charles Ingram, James Janecka, Kevin K. McAleenan, Marc J Moore, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, David Shinn, US Citizenship and Immigration Services, US Customs and Border Protection, US Department of Homeland Security, US Immigration and Customs Enforcement. (Attachments: # 1 Exhibit Vasquez Bond Order, # 2 Proposed Order) Noting Date 9/28/2018, (Bingham, Lauren) (Entered: 09/06/2018)

09/06/2018

37 Amended MOTION to Certify Class , ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 9/28/2018, (Aldana Madrid, Glenda) (Entered: 09/06/2018)

09/06/2018

38 DECLARATION of Trina Realmuto ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 37 Amended MOTION to Certify Class (Aldana Madrid, Glenda) (Entered: 09/06/2018)

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39 DECLARATION of Carlos Moctezuma Garcia ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 37 Amended MOTION to Certify Class (Aldana Madrid, Glenda) (Entered: 09/06/2018)

09/06/2018

40 DECLARATION of Priya A. Patel ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 37 Amended MOTION to Certify Class (Aldana Madrid, Glenda) (Entered: 09/06/2018)

09/06/2018

41 DECLARATION of Kelly M.L. Rojas ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 37 Amended MOTION to Certify Class (Aldana Madrid, Glenda) (Entered: 09/06/2018)

09/06/2018

42 DECLARATION of K. Russell ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 37 Amended MOTION to Certify Class (Aldana Madrid, Glenda) (Entered: 09/06/2018)

09/06/2018

43 DECLARATION of Benjamin E. Stein ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 37 Amended MOTION to Certify Class (Aldana Madrid, Glenda) (Entered: 09/06/2018)

09/06/2018

44 DECLARATION of Timothy Warden-Hertz ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 37 Amended MOTION to Certify Class (Aldana Madrid, Glenda) (Entered: 09/06/2018)

09/20/2018

45 MOTION for Preliminary Injunction , ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 10/12/2018, (Adams, Matt) (Entered: 09/20/2018)

09/20/2018

46 DECLARATION of Carolina Antonini ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 45 MOTION for Preliminary Injunction (Adams, Matt) (Entered: 09/20/2018)

09/20/2018

47 DECLARATION of Eduardo Beckett ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 45 MOTION for Preliminary Injunction (Adams, Matt) (Entered: 09/20/2018)

09/20/2018

48 DECLARATION of Anna Byers ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 45 MOTION for Preliminary Injunction (Adams, Matt) (Entered: 09/20/2018)

09/20/2018

49 DECLARATION of Holly S. Cooper ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 45 MOTION for Preliminary Injunction (Adams, Matt) (Entered: 09/20/2018)

09/20/2018

50 DECLARATION of Talia Inlender ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 45 MOTION for Preliminary Injunction (Adams, Matt) (Entered: 09/20/2018)

09/20/2018

51 DECLARATION of Jeremy Jong ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 45 MOTION for Preliminary Injunction (Adams, Matt) (Entered: 09/20/2018)

09/20/2018

52 DECLARATION of Jennifer Lee Koh ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 45 MOTION for Preliminary Injunction (Adams, Matt) (Entered: 09/20/2018)

09/20/2018

53 DECLARATION of Taylor Levy ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 45 MOTION for Preliminary Injunction (Adams, Matt) (Entered: 09/20/2018)

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54 DECLARATION of Allegra S. Love ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 45 MOTION for Preliminary Injunction (Adams, Matt) (Entered: 09/20/2018)

09/20/2018

55 DECLARATION of Laura P. Lunn ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 45 MOTION for Preliminary Injunction (Adams, Matt) (Entered: 09/20/2018)

09/20/2018

56 DECLARATION of Hilario Mercado, Jr. ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 45 MOTION for Preliminary Injunction (Adams, Matt) (Entered: 09/20/2018)

09/20/2018

57 DECLARATION of Blanca Orantes ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 45 MOTION for Preliminary Injunction (Adams, Matt) (Entered: 09/20/2018)

09/20/2018

58 DECLARATION of Jessica Shulruff Schneider ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 45 MOTION for Preliminary Injunction (Adams, Matt) (Entered: 09/20/2018)

09/20/2018

59 DECLARATION of Jocelyn L. Valencia ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 45 MOTION for Preliminary Injunction (Adams, Matt) (Entered: 09/20/2018)

09/20/2018

60 DECLARATION of Edna Yang ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 45 MOTION for Preliminary Injunction (Adams, Matt) (Entered: 09/20/2018)

09/21/2018

61 DECLARATION of Baltazar Vasquez ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 45 MOTION for Preliminary Injunction (Adams, Matt) (Entered: 09/21/2018)

09/24/2018

62 DECLARATION of Aaron Hull ﬁled by Defendants Alex M. Azar, II, L. Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Thomas Homan, Charles Ingram, James Janecka, Scott Lloyd, Kevin K. McAleenan, Marc J Moore, Kirstjen Nielsen, Ofﬁce of Refugee Resettlement, Jefferson Beauregard Sessions, III, David Shinn, US Customs and Border Protection, US Department of Health and Human Services, US Department of Homeland Security, US Immigration and Customs Enforcement, United StatesCitizenship and Immigration Services re 45 MOTION for Preliminary Injunction (Darrow, Joseph) (Entered: 09/24/2018)

09/24/2018

63 DECLARATION of Sidney K. Aki ﬁled by Defendants Alex M. Azar, II, L. Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Thomas Homan, Charles Ingram, James Janecka, Scott Lloyd, Kevin K. McAleenan, Marc J Moore, Kirstjen Nielsen, Ofﬁce of Refugee Resettlement, Jefferson Beauregard Sessions, III, David Shinn, US Customs and Border Protection, US Department of Health and Human Services, US Department of Homeland Security, US Immigration and Customs Enforcement, United StatesCitizenship and Immigration Services re 45 MOTION for Preliminary Injunction (Darrow, Joseph) (Entered: 09/24/2018)

09/24/2018

64 DECLARATION of John L. Lafferty ﬁled by Defendants Alex M. Azar, II, L. Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Thomas Homan, Charles Ingram, James Janecka, Scott Lloyd, Kevin K. McAleenan, Marc J Moore, Kirstjen Nielsen, Ofﬁce of Refugee Resettlement, Jefferson Beauregard Sessions, III, David Shinn, US Customs and Border Protection, US Department of Health and Human Services, US Department of Homeland Security, US Immigration and Customs Enforcement, United StatesCitizenship and Immigration Services re 45 MOTION for Preliminary Injunction (Darrow, Joseph) (Entered: 09/24/2018)

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65 DECLARATION of David W. Jennings ﬁled by Defendants Alex M. Azar, II, L. Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Thomas Homan, Charles Ingram, James Janecka, Scott Lloyd, Kevin K. McAleenan, Marc J Moore, Kirstjen Nielsen, Ofﬁce of Refugee Resettlement, Jefferson Beauregard Sessions, III, David Shinn, US Customs and Border Protection, US Department of Health and Human Services, US Department of Homeland Security, US Immigration and Customs Enforcement, United StatesCitizenship and Immigration Services re 37 Amended MOTION to Certify Class (Darrow, Joseph) (Entered: 09/24/2018)

09/24/2018

66 DECLARATION of Joe Neifert ﬁled by Defendants Alex M. Azar, II, L. Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Thomas Homan, Charles Ingram, James Janecka, Scott Lloyd, Kevin K. McAleenan, Marc J Moore, Kirstjen Nielsen, Ofﬁce of Refugee Resettlement, Jefferson Beauregard Sessions, III, David Shinn, US Customs and Border Protection, US Department of Health and Human Services, US Department of Homeland Security, US Immigration and Customs Enforcement, United StatesCitizenship and Immigration Services re 37 Amended MOTION to Certify Class (Darrow, Joseph) (Entered: 09/24/2018)

09/24/2018

67 DECLARATION of Hilma Torres ﬁled by Defendants Alex M. Azar, II, L. Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Thomas Homan, Charles Ingram, James Janecka, Scott Lloyd, Kevin K. McAleenan, Marc J Moore, Kirstjen Nielsen, Ofﬁce of Refugee Resettlement, Jefferson Beauregard Sessions, III, David Shinn, US Customs and Border Protection, US Department of Health and Human Services, US Department of Homeland Security, US Immigration and Customs Enforcement, United StatesCitizenship and Immigration Services re 37 Amended MOTION to Certify Class (Darrow, Joseph) (Entered: 09/24/2018)

09/24/2018

68 RESPONSE, by Defendants Alex M. Azar, II, L. Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Thomas Homan, Charles Ingram, James Janecka, Scott Lloyd, Kevin K. McAleenan, Marc J Moore, Kirstjen Nielsen, Ofﬁce of Refugee Resettlement, Jefferson Beauregard Sessions, III, David Shinn, US Customs and Border Protection, US Department of Health and Human Services, US Department of Homeland Security, US Immigration and Customs Enforcement, United StatesCitizenship and Immigration Services, to 37 Amended MOTION to Certify Class . (Attachments: # 1 Exhibit A - Guzman Bond Order)(Darrow, Joseph) (Entered: 09/24/2018)

09/24/2018

69 RESPONSE, by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez, to 36 MOTION to Dismiss . Oral Argument Requested. (Kang, Leila) (Entered: 09/24/2018)

09/26/2018

70 PRAECIPE re 42 Declaration of Kathrine Russell re: 37 Amended Motion for Class Certiﬁcation by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez (Attachments: # 1 Exhibit)(Adams, Matt) Modiﬁed on 9/27/2018 to add link and language re: amended motion for class certiﬁcation (PM). (Entered: 09/26/2018)

09/28/2018

71 NOTICE of Appearance by attorney Sarah S. Wilson on behalf of Defendants L. Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Thomas Homan, Charles Ingram, James Janecka, Kevin K. McAleenan, Marc J Moore, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, David Shinn, US Customs and Border Protection, US Department of Homeland Security, US Immigration and Customs Enforcement, United StatesCitizenship and Immigration Services. (Wilson, Sarah) (Entered: 09/28/2018)

09/28/2018

72 REPLY, ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez, TO RESPONSE to 37 Amended MOTION to Certify Class (Attachments: # 1 Citation Dist. Ct. decision cited to)(Adams, Matt) (Entered: 09/28/2018)

09/28/2018 73 DECLARATION of Yolany Padilla ﬁled by Plaintiff Yolany Padilla re 37 Amended

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MOTION to Certify Class (Adams, Matt) (Entered: 09/28/2018)
74 DECLARATION of Ibis Guzman ﬁled by Plaintiff Ibis Guzman re 37 Amended MOTION to Certify Class (Adams, Matt) (Entered: 09/28/2018)
75 Second DECLARATION of Blanca Orantes ﬁled by Plaintiff Blanca Orantes re 37 Amended MOTION to Certify Class (Adams, Matt) (Entered: 09/28/2018)
76 REPLY, ﬁled by Defendants L. Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Thomas Homan, Charles Ingram, James Janecka, Kevin K. McAleenan, Marc J Moore, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, David Shinn, US Customs and Border Protection, US Department of Homeland Security, US Immigration and Customs Enforcement, United StatesCitizenship and Immigration Services, TO RESPONSE to 36 MOTION to Dismiss (Wilson, Sarah) (Entered: 09/28/2018)
77 Stipulated MOTION Regarding Motion for Preliminary Injunction Brieﬁng Schedule, ﬁled by Defendants L. Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Thomas Homan, Charles Ingram, James Janecka, Kevin K. McAleenan, Marc J Moore, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, David Shinn, US Customs and Border Protection, US Department of Homeland Security, US Immigration and Customs Enforcement, United StatesCitizenship and Immigration Services. Noting Date 10/1/2018, (Bingham, Lauren) (Entered: 10/01/2018)
78 ORDER re: parties' 77 Stipulated Motion. Defendants' response to Plaintiffs' 45 MOTION for Preliminary Injunction due 10/17/2018; Plaintiffs' reply due 10/26/2018; Plaintiffs' 45 MOTION for Preliminary Injunction is re-noted for 10/26/2018. Signed by Judge Marsha J. Pechman. (PM) (Entered: 10/04/2018)
79 Stipulated MOTION Regarding Exchange of Initial Disclosures and Submission of 26(f) report, ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez. Noting Date 10/11/2018, (Adams, Matt) (Entered: 10/11/2018)
80 NOTICE of Appearance by attorney Aaron Korthuis on behalf of Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez. (Korthuis, Aaron) (Entered: 10/15/2018)
81 STIPULATION AND ORDER Regarding Exchange of Initial Disclosures and Submission of 26(f) Report re parties' 79 Stipulated Motion. The parties shall exchange initial disclosures by November 5, 2018. The parties shall submit their 26(f) report by November 12, 2018. Signed by Judge Marsha J. Pechman. (TH) (Entered: 10/15/2018)
82 RESPONSE, by Defendants L. Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Thomas Homan, Charles Ingram, James Janecka, Kevin K. McAleenan, Marc J Moore, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, David Shinn, US Customs and Border Protection, US Department of Homeland Security, US Immigration and Customs Enforcement, United StatesCitizenship and Immigration Services, to 45 MOTION for Preliminary Injunction . (Wilson, Sarah) (Entered: 10/17/2018)
83 MOTION for Relief from Deadlines, ﬁled by Defendants L. Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Thomas Homan, Charles Ingram, James Janecka, Kevin K. McAleenan, Marc J Moore, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, David Shinn, US Customs and Border Protection, US Department of Homeland Security, US Immigration and Customs Enforcement, United StatesCitizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 10/26/2018, (Bingham, Lauren) (Entered: 10/18/2018)

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84 RESPONSE, by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez, to 83 MOTION for Relief from Deadlines. (Korthuis, Aaron) (Entered: 10/24/2018)
85 REPLY, ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez, TO RESPONSE to 45 MOTION for Preliminary Injunction (Adams, Matt) (Entered: 10/26/2018)
86 RESPONSE, ﬁled by Defendants L. Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Thomas Homan, Charles Ingram, James Janecka, Kevin K. McAleenan, Marc J Moore, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, David Shinn, US Customs and Border Protection, US Department of Homeland Security, US Immigration and Customs Enforcement, United StatesCitizenship and Immigration Services, TO REPLY to 83 MOTION for Relief from Deadlines (Bingham, Lauren) (Entered: 10/26/2018)
Set Oral Argument on 36 MOTION to Dismiss : Motion Hearing set for 11/20/2018 at 1:30 PM before Judge Marsha J. Pechman. (LW) (Entered: 11/07/2018)
87 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Glenda Melinda Aldana Madrid for Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez. (Aldana Madrid, Glenda) (Entered: 11/07/2018)
88 Joint Stipulated MOTION Regarding 26(f) Report, ﬁled by Defendants L. Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Thomas Homan, Charles Ingram, James Janecka, Kevin K. McAleenan, Marc J Moore, Kirstjen Nielsen, Jefferson Beauregard Sessions, III, David Shinn, US Customs and Border Protection, US Department of Homeland Security, US Immigration and Customs Enforcement, United StatesCitizenship and Immigration Services. Noting Date 11/9/2018, (Bingham, Lauren) (Entered: 11/09/2018)
89 JOINT STIPULATION AND ORDER regarding submission of 26(f) report re parties' 88 Stipulated Motion: The parties shall submit their 26(f) within two weeks of Court's ruling on pending motion for certiﬁcation. Signed by Judge Marsha J. Pechman.(SWT) (Entered: 11/14/2018)
90 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman- Dep Clerk: Lowell Williams; Pla Counsel: Matt Adams, Leila Kang, Aaron Korthuis, Trina Realmuto (by phone); Def Counsel: Sarah Wilson, Brianna Evans; CR: Andrea Ramirez; Time of Hearing: 1:30 PM; Motion Hearing held on 11/20/2018 re 36 MOTION to Dismiss ﬁled by Jefferson Beauregard Sessions, III, US Immigration and Customs Enforcement, Thomas Homan, L. Francis Cissna, US Department of Homeland Security, James Janecka, Marc J Moore, David Shinn, Charles Ingram, Lowell Clark, Kirstjen Nielsen, Executive Ofﬁce for Immigration Review, US Customs and Border Protection, Kevin K. McAleenan, United StatesCitizenship and Immigration Services. Court hears argument from counsel and takes matter under advisement. Court advises counsel that its ruling will issue in 14 days. (LW) (Entered: 11/20/2018)
91 ORDER granting in part and denying in part Defendants' 36 Motion to Dismiss. Plaintiffs' claims relating to violations of the Administrative Procedures Act are DISMISSED with prejudice (except as to the claims of the Bond Hearing class for certain procedural safeguards); the motion to dismiss the remainder of Plaintiffs' claims is DENIED. Signed by Judge Marsha J. Pechman. (PM) (Entered: 12/11/2018)
92 MOTION for Reconsideration re 91 Order on Motion to Dismiss, , ﬁled by Defendants L Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Thomas Homan, Charles Ingram, James Janecka, Kevin K. McAleenan, Marc J Moore, Kirstjen M

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Nielsen, Jefferson Beauregard Sessions, III, David Shinn, US Customs and Border Protection, US Department of Homeland Security, US Immigration and Customs Enforcement, United StatesCitizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 12/26/2018, (Wilson, Sarah) (Entered: 12/26/2018)
93 MOTION for Extension of Time to File Answer , ﬁled by Defendants L Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Thomas Homan, Charles Ingram, James Janecka, Kevin K. McAleenan, Marc J Moore, Kirstjen M Nielsen, Jefferson Beauregard Sessions, III, David Shinn, US Customs and Border Protection, US Department of Homeland Security, US Immigration and Customs Enforcement, United StatesCitizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 1/4/2019, (Wilson, Sarah) (Entered: 12/26/2018)
94 NOTICE of Change of Address/Change of Name of Attorney Trina Realmuto. Filed by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez. (Realmuto, Trina) Modiﬁed address on 1/3/2019 (DS). (Entered: 01/03/2019)
95 NOTICE of Change of Address/Change of Name of Attorney Kristin Macleod-Ball. Filed by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez. (MacleodBall, Kristin) (Entered: 01/04/2019)
96 MINUTE ORDER directing Plaintiffs to respond to Defendants' 92 MOTION for Reconsideration. Response due 1/18/2019. The 92 Motion for Reconsideration is re-noted for 1/18/2019. Authorized by Judge Marsha J. Pechman. (PM) (Entered: 01/04/2019)
97 ORDER granting the Government's 93 Motion to extend the answer deadline. The answer deadline in this case is extended until seven days after Congress restores appropriations to the Department of Justice. Signed by Judge Marsha J. Pechman. (PM) (Entered: 01/04/2019)
98 RESPONSE, by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez, to 92 MOTION for Reconsideration re 91 Order on Motion to Dismiss, . (Kang, Leila) (Entered: 01/18/2019)
99 ANSWER to 26 Amended Complaint,, by L Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Thomas Homan, Charles Ingram, James Janecka, Kevin K. McAleenan, Marc J Moore, Kirstjen M Nielsen, Jefferson Beauregard Sessions, III, David Shinn, US Customs and Border Protection, US Department of Homeland Security, US Immigration and Customs Enforcement, United StatesCitizenship and Immigration Services.(Wilson, Sarah) (Entered: 02/04/2019)
100 ORDER denying Defendants' 92 Motion for Reconsideration. Signed by Judge Marsha J. Pechman. (PM) (Entered: 02/12/2019)
101 ORDER denying Defendants' 83 Motion for Relief from Deadlines. The parties shall submit their Rule 26(f) report within two weeks of the Court's ruling on the pending motion for class certiﬁcation. (See Dkt. No. 89 .) Signed by Judge Marsha J. Pechman. (PM) (Entered: 03/06/2019)
102 ORDER granting Plaintiffs' 37 Amended Motion for Class Certiﬁcation. It is further ORDERED that Plaintiffs Padilla, Guzman, Orantes and Vasquez are designated as representatives of the Credible Fear Interview Class; Plaintiffs Orantes and Vasquez as representatives of the Bond Hearing Class; and Plaintiffs' counsel as class counsel. Signed by Judge Marsha J. Pechman. (PM) (Entered: 03/06/2019)
103 NOTICE of Hearing 45 MOTION for Preliminary Injunction : ORAL ARGUMENT/Motion Hearing set for 3/26/2019 at 03:00 PM in Courtroom 14206 before

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Judge Marsha J. Pechman. Each side is allowed 20 minutes for argument, including rebuttal. (RM) (Entered: 03/12/2019)
104 NOTICE of Request for Video Recording of Hearing on Motion for Preliminary Injunction on 3/26/2019 at 3:00 PM before Marsha J. Pechman. Parties must submit PARTY RESPONSE TO REQUEST FOR VIDEO RECORDING before 3/18/2019. Please Note: This form must not be ﬁled electronically with the Court. (RM) (Entered: 03/13/2019)
105 NOTIFICATION REGARDING PROPOSED VIDEO RECORDING. All parties have consented to the video recording of the hearing on the motion for preliminary injunction on 3/26/2019 at 3:00 PM. Unless otherwise ordered by the presiding judge, the proceeding will be video recorded as part of the CAMERAS Pilot Project. (RM) (Entered: 03/19/2019)
106 JOINT STATUS REPORT signed by all parties estimated Trial Days: 5-10. Filed by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez.(Adams, Matt) (Entered: 03/20/2019)
107 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman- Dep Clerk: Rhonda Miller; Pla Counsel: Aaron Korthuis, Leila Kang, Matt Adams; Def Counsel: Lauren Bingham, Brianna Evans; CR: Nicki Drury; Motion Hearing held on 3/26/2019 45 MOTION for Preliminary Injunction ﬁled by Baltazar Vasquez, Blanca Orantes, Ibis Guzman, Yolany Padilla. Oral argument presented. Court will issue order within 14 days. (RM) (Entered: 03/27/2019)
108 ORDER SETTING TRIAL DATE AND RELATED DATES; Length of Trial: *5-10 DAY* Bench Trial is set for 10/19/2020 at 09:00 AM in Courtroom 14206 before Judge Marsha J. Pechman. Joinder of Parties due by 4/25/2019, Proposed ESI order due 4/29/2019, Amended Pleadings due by 5/22/2019, Completion of fact discovery by 11/20/2019, Completion of expert discovery by 3/19/2020, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 3/23/2020, Motions due by 4/22/2020, Dispositive motions due by 5/22/2020, Motions in Limine due by 9/14/2020, Pretrial Order due by 10/7/2020, Trial briefs to be submitted by 10/7/2020, Proposed Findings of Fact and Conclusions of Law to be submitted by 10/7/2020, Pretrial Conference set for 10/9/2020 at 01:30 PM in Courtroom 14206 before Judge Marsha J. Pechman. (RM) (Entered: 03/28/2019)
Pursuant to Federal Rule of Civil Procedure 25(d), William P Barr is substituted for United States Attorney General Jefferson Beauregard Sessions, III. The docket has been updated. (PM) (Entered: 04/02/2019)
109 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Oral Argument on Request for Preliminary Injunction held on 3/26/2019 before Judge Marsha J. Pechman.
Parties have seven (7) calendar days to ﬁle with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.
Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.
To purchase a copy of the transcript, contact court reporter Nickoline Drury, nickoline_drury@wawd.uscourts.gov, 206-370-8508.

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Release of Transcript Restriction set for 7/2/2019, (ND) (Entered: 04/03/2019)
110 ORDER granting plaintiffs' 45 Motion for Preliminary Injunction, signed by Judge Marsha J. Pechman. (SWT) (Entered: 04/05/2019)
111 Stipulated MOTION Regarding Brieﬁng Deadlines for Motion to Vacate, ﬁled by Defendants William P Barr, L Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Thomas Homan, Charles Ingram, James Janecka, Kevin K. McAleenan, Marc J Moore, Kirstjen M Nielsen, David Shinn, US Customs and Border Protection, US Department of Homeland Security, US Immigration and Customs Enforcement, United StatesCitizenship and Immigration Services. Noting Date 4/22/2019, (Bingham, Lauren) (Entered: 04/22/2019)
112 NOTICE of Appearance by attorney Archith Ramkumar on behalf of Defendants Alex M. Azar, II, William P Barr, L Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Thomas Homan, Charles Ingram, James Janecka, Scott Lloyd, Kevin K. McAleenan, Marc J Moore, Kirstjen M Nielsen, Ofﬁce of Refugee Resettlement, Jefferson Beauregard Sessions, III, David Shinn, US Customs and Border Protection, US Department of Health and Human Services, US Department of Homeland Security, US Immigration and Customs Enforcement, United StatesCitizenship and Immigration Services. (Ramkumar, Archith) (Entered: 04/22/2019)
113 ORDER re: parties' 111 Stipulated Motion Regarding Brieﬁng Schedule for Defendants' Forthcoming Motion to Vacate. April 26, 2019: Deadline for Defendants' Motion to Vacate; May 10, 2019: Deadline for Plaintiffs' Opposition to Defendants' Motion to Vacate; May 15, 2019: Deadline for Defendants' reply in support of their Motion to Vacate. Compliance with the Preliminary Injunction 110 entered on April 5, 2019, is hereby STAYED until May 31, 2019. Signed by Judge Marsha J. Pechman. (PM) (Entered: 04/23/2019)
114 MOTION to Vacate 110 Order on Motion for Preliminary Injunction , ﬁled by Defendants Alex M. Azar, II, William P Barr, L Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Thomas Homan, Charles Ingram, James Janecka, Scott Lloyd, Kevin K. McAleenan, Marc J Moore, Kirstjen M Nielsen, Ofﬁce of Refugee Resettlement, Jefferson Beauregard Sessions, III, David Shinn, US Customs and Border Protection, US Department of Health and Human Services, US Department of Homeland Security, US Immigration and Customs Enforcement, United StatesCitizenship and Immigration Services. (Attachments: # 1 Exhibit A: Matter of M-S-, # 2 Proposed Order) Noting Date 5/15/2019, (Ramkumar, Archith) (Entered: 04/26/2019)
115 STIPULATION AND PROPOSED ORDER REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION by parties (Bingham, Lauren) (Entered: 04/29/2019)
116 MOTION to Amend Complaint, ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez. (Attachments: # 1 Exhibit Proposed Amended Complaint, # 2 Exhibit Proposed Amended Complaint (redline), # 3 Proposed Order) Noting Date 5/17/2019, (Kang, Leila) (Entered: 05/02/2019)
117 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing held on 11/20/2018 before Judge Marsha J. Pechman.
Parties have seven (7) calendar days to ﬁle with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

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Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.
To purchase a copy of the transcript, contact court reporter Andrea Ramirez, andrea_ramirez@wawd.uscourts.gov, 206-370-8509.
Release of Transcript Restriction set for 8/1/2019, (AR) (Entered: 05/03/2019)
118 STIPULATION AND PROPOSED ORDER Regarding Discovery of Electronically Stored Information by parties (Ramkumar, Archith) (Entered: 05/06/2019)
119 APPLICATION OF ATTORNEY Anand Balakrishnan FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez (Fee Paid) Receipt No. 0981-5757888 (Adams, Matt) (Entered: 05/07/2019)
120 APPLICATION OF ATTORNEY Judy Rabinovitz FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez (Fee Paid) Receipt No. 0981-5757903 (Adams, Matt) (Entered: 05/07/2019)
121 APPLICATION OF ATTORNEY Michael King Tan FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez (Fee Paid) Receipt No. 0981-5757917 (Adams, Matt) (Entered: 05/07/2019)
122 ORDER re 119 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Anand Balakrishnan for Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, and Baltazar Vasquez, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all ﬁlings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 05/07/2019)
123 ORDER re 120 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Judith Rabinowitz Judy Rabinovitz for Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, and Baltazar Vasquez, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all ﬁlings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) Corrected PHV attorney on 5/8/2019 (DS). (Entered: 05/07/2019)
124 ORDER re 121 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Michael Tan for Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, and Baltazar Vasquez, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all ﬁlings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 05/07/2019)
125 STIPULATION AND ORDER regarding discovery of electronically stored information. Signed by Judge Marsha J. Pechman. (MW) (Entered: 05/07/2019)

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126 RESPONSE, by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez, to 114 MOTION to Vacate 110 Order on Motion for Preliminary Injunction . Oral Argument Requested. (Korthuis, Aaron) (Entered: 05/10/2019)
127 STIPULATION AND PROPOSED ORDER Granting Leave to Plaintiffs to File a Third Amended Complaint, Extending the Time for Implementing the Preliminary Injunction Issued by this Court, Staying Discovery, and Setting a Brieﬁng Schedule for Forthcoming Motions by parties (Ramkumar, Archith) (Entered: 05/13/2019)
128 REPLY, ﬁled by Defendants Alex M. Azar, II, William P Barr, L Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Thomas Homan, Charles Ingram, James Janecka, Scott Lloyd, Kevin K. McAleenan, Marc J Moore, Kirstjen M Nielsen, Ofﬁce of Refugee Resettlement, Jefferson Beauregard Sessions, III, David Shinn, US Customs and Border Protection, US Department of Health and Human Services, US Department of Homeland Security, US Immigration and Customs Enforcement, United States Citizenship and Immigration Services, TO RESPONSE to 114 MOTION to Vacate 110 Order on Motion for Preliminary Injunction (Ramkumar, Archith) (Entered: 05/15/2019)
129 ORDER granting Plaintiffs' 116 Motion for Leave to Amend the Complaint. Enforcement of the preliminary injunction entered on April 5 (Dkt. 110 ) is further stayed until July 1, 2019. Defendants' deadline to ﬁle a Notice of Appeal with respect to the Order granting Plaintiffs' motion for a preliminary injunction is extended from June 4, 2019 to July 5, 2019. Discovery is stayed pending consideration of the parties' forthcoming motions. Schedule for Plaintiffs' forthcoming cross- motion to modify the Order granting Plaintiffs' motion for a preliminary injunction and Defendants' motion to dismiss Plaintiffs' Third Amended Complaint is as follows: Plaintiffs' cross-motion to modify due 5/28/2019; Defendants' opposition to Plaintiffs' cross-motion due 6/10/2019; Plaintiffs' reply in support of their cross-motion due 6/14/2019; Defendants' motion to dismiss Third Amended Complaint due 6/3/2019; Plaintiffs' opposition to Defendants' motion due 6/17/2019; Defendants' reply in support of their motion to dismiss due 6/21/2019. Signed by Judge Marsha J. Pechman. (PM) (Entered: 05/20/2019)
130 Third AMENDED COMPLAINT Class Action for Injunctive and Declaratory Relief against All Defendants, ﬁled by Ibis Guzman, Yolany Padilla, Blanca Orantes, Baltazar Vasquez.(Adams, Matt) (Entered: 05/20/2019)
Parties Thomas Homan (Acting Director of ICE) and Marc J Moore (Seattle Field Ofﬁce Director, ICE) terminated per 130 Third Amended Complaint. (MW) (Entered: 05/21/2019)
131 Cross MOTION for Modiﬁcation of the Existing Preliminary Injunction re 114 MOTION to Vacate 110 Order on Motion for Preliminary Injunction , 110 Order on Motion for Preliminary Injunction , ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 6/14/2019, (Kang, Leila) (Entered: 05/28/2019)
132 DECLARATION of David Hausman ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 131 Cross MOTION for Modiﬁcation of the Existing Preliminary Injunction re 114 MOTION to Vacate 110 Order on Motion for Preliminary Injunction , 110 Order on Motion for Preliminary Injunction (Kang, Leila) (Entered: 05/28/2019)
133 DECLARATION of Allen S. Keller ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 131 Cross MOTION for Modiﬁcation of the Existing Preliminary Injunction re 114 MOTION to Vacate 110 Order on Motion for Preliminary Injunction , 110 Order on Motion for Preliminary Injunction (Kang, Leila) (Entered: 05/28/2019)

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134 DECLARATION of Michelle Brane ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez re 131 Cross MOTION for Modiﬁcation of the Existing Preliminary Injunction re 114 MOTION to Vacate 110 Order on Motion for Preliminary Injunction , 110 Order on Motion for Preliminary Injunction (Kang, Leila) (Entered: 05/28/2019)
135 NOTICE of Hearing 131 Cross MOTION for Modiﬁcation of the Existing Preliminary Injunction & 114 MOTION to Vacate 110 Order on Motion for Preliminary Injunction : ORAL ARGUMENT/Motion Hearing set for 6/28/2019 at 10:00 AM in Courtroom 14206 before Judge Marsha J. Pechman. Each side is allowed 30 minutes for argument, including rebuttal. (RM) (Entered: 05/30/2019)
136 MOTION to Dismiss , ﬁled by Defendants Matthew T. Albence, William P Barr, L Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Elizabeth Godfrey, Charles Ingram, James Janecka, Kevin K. McAleenan, John P. Sanders, David Shinn, US Customs and Border Protection, US Department of Homeland Security, US Immigration and Customs Enforcement, United States Citizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 6/21/2019, (Bingham, Lauren) (Entered: 06/03/2019)
137 DECLARATION of Russell Hott ﬁled by Defendants Matthew T. Albence, William P Barr, L Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Elizabeth Godfrey, Charles Ingram, James Janecka, Kevin K. McAleenan, John P. Sanders, David Shinn, US Customs and Border Protection, US Department of Homeland Security, US Immigration and Customs Enforcement, United States Citizenship and Immigration Services re 136 MOTION to Dismiss (Bingham, Lauren) (Entered: 06/03/2019)
138 NOTICE OF RESCHEDULED HEARING TIME. The Hearing time has been changed regarding 131 Cross MOTION for Modiﬁcation of the Existing Preliminary Injunction & 114 MOTION to Vacate 110 Order on Motion for Preliminary Injunction : ORAL ARGUMENT/Motion Hearing set for 6/28/2019 at 9:00 AM in Courtroom 14206 before Judge Marsha J. Pechman. Each side is allowed 30 minutes for argument, including rebuttal.(RM) (Entered: 06/04/2019)
139 RESPONSE, by Defendants Matthew T. Albence, Alex M. Azar, II, William P Barr, L Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Elizabeth Godfrey, Thomas Homan, Charles Ingram, James Janecka, Scott Lloyd, Kevin K. McAleenan, Marc J Moore, Kirstjen M Nielsen, Ofﬁce of Refugee Resettlement, John P. Sanders, Jefferson Beauregard Sessions, III, David Shinn, US Customs and Border Protection, US Department of Health and Human Services, US Department of Homeland Security, US Immigration and Customs Enforcement, United States Citizenship and Immigration Services, to 131 Cross MOTION for Modiﬁcation of the Existing Preliminary Injunction re 114 MOTION to Vacate 110 Order on Motion for Preliminary Injunction , 110 Order on Motion for Preliminary Injunction . (Ramkumar, Archith) (Entered: 06/10/2019)
140 REPLY, ﬁled by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez, TO RESPONSE to 131 Cross MOTION for Modiﬁcation of the Existing Preliminary Injunction re 114 MOTION to Vacate 110 Order on Motion for Preliminary Injunction , 110 Order on Motion for Preliminary Injunction (Attachments: # 1 Citation Attachment 1)(Kang, Leila) (Entered: 06/14/2019)
141 RESPONSE, by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez, to 136 MOTION to Dismiss . Oral Argument Requested. (Korthuis, Aaron) (Entered: 06/17/2019)

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142 REPLY, ﬁled by Defendants Matthew T. Albence, William P Barr, L Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Elizabeth Godfrey, Charles Ingram, James Janecka, Kevin K. McAleenan, John P. Sanders, David Shinn, US Customs and Border Protection, US Department of Homeland Security, US Immigration and Customs Enforcement, United States Citizenship and Immigration Services, TO RESPONSE to 136 MOTION to Dismiss (Bingham, Lauren) (Entered: 06/21/2019)
143 Joint Stipulated MOTION Regarding Preliminary Injunction Implementation, ﬁled by Defendants Matthew T. Albence, William P Barr, L Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Elizabeth Godfrey, Charles Ingram, James Janecka, Kevin K. McAleenan, John P. Sanders, David Shinn, US Customs and Border Protection, US Department of Homeland Security, US Immigration and Customs Enforcement, United States Citizenship and Immigration Services. Noting Date 6/25/2019, (Bingham, Lauren) (Entered: 06/25/2019)
144 NOTICE of Request for Video Recording regarding hearing on 131 Cross MOTION for Modiﬁcation of the Existing Preliminary Injunction & 114 MOTION to Vacate 110 Order on Motion for Preliminary Injunction on 6/28/2019 at 9:00 before Marsha J. Pechman. Parties must submit PARTY RESPONSE TO REQUEST FOR VIDEO RECORDING before 6/27/2019 at 3:00 PM. Please Note: This form must not be ﬁled electronically with the Court. (RM) (Entered: 06/26/2019)
145 NOTIFICATION REGARDING PROPOSED VIDEO RECORDING. At least one party or the presiding judge has opposed the request to video record. The hearing regarding 131 Cross MOTION for Modiﬁcation of the Existing Preliminary Injunction & 114 MOTION to Vacate 110 Order on Motion for Preliminary Injunction scheduled on 6/28/2019 at 9:00 AM in Courtroom 14206 before Judge Marsha J. Pechman will not be video recorded. (RM) (Entered: 06/27/2019)
146 ORDER re: parties' 143 Joint Stipulated Motion Regarding Preliminary Injunction Implementation. Based on the foregoing stipulation of the parties, IT IS SO ORDERED. Compliance with the preliminary injunction is STAYED until July 8, 2019. Signed by Judge Marsha J. Pechman. (PM) (Entered: 06/28/2019)
147 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman- Dep Clerk: Rhonda Miller; Pla Counsel: Aaron Korthuis, Leila Kang, Anand Balakrishnan, Matt Adams; Def Counsel: Lauren Bingham, Brianna Evans; CR: Debbie Zurn. Motion Hearing held on 6/28/2019 regarding 131 Cross MOTION for Modiﬁcation of the Existing Preliminary Injunction & 114 MOTION to Vacate 110 Order on Motion for Preliminary Injunction. Oral argument presented. Court will issue written order. (RM) (Entered: 06/28/2019)
148 NOTICE of Supplemental Authority re 141 Response to Motion, 126 Response to Motion, 140 Reply to Response to Motion, by Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez (Kang, Leila) (Entered: 07/01/2019)
149 ORDER on Motions re: Preliminary Injunction (Dkts. 114 , 131 ). The Court GRANTS the requested relief. The preliminary injunction, as modiﬁed, will enter into effect 14 days from the date of this order. (See Order for details). Signed by Judge Marsha J. Pechman. (SWT) (Entered: 07/02/2019)
150 NOTICE OF APPEAL (19-35565) to Ninth Circuit re 149 Order on Motion to Vacate,, Order on Motion for Miscellaneous Relief, 110 Order on Motion for Preliminary Injunction by Defendants Matthew T. Albence, William P Barr, L Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Elizabeth Godfrey, Charles Ingram, James Janecka, Kevin K. McAleenan, John P. Sanders, David Shinn, US Customs and Border Protection, US Department of Homeland Security, US Immigration and Customs

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Enforcement, United States Citizenship and Immigration Services. (Bingham, Lauren) Modiﬁed on 7/8/2019 to add CCA# (GT). (Entered: 07/03/2019)
151 USCA Case Number 19-35565 for 150 Notice of Appeal, ﬁled by Elizabeth Godfrey, US Immigration and Customs Enforcement, Matthew T. Albence, US Department of Homeland Security, William P Barr, James Janecka, David Shinn, Charles Ingram, United States Citizenship and Immigration Services, L Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, US Customs and Border Protection, Kevin K. McAleenan, John P. Sanders. (GT) (Entered: 07/08/2019)
152 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Joseph A. Darrow for Defendants Matthew T. Albence, Alex M. Azar, II, William P Barr, L Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, Elizabeth Godfrey, Thomas Homan, Charles Ingram, James Janecka, Scott Lloyd, Kevin K. McAleenan, Marc J Moore, Kirstjen M Nielsen, Ofﬁce of Refugee Resettlement, John P. Sanders, Jefferson Beauregard Sessions, III, David Shinn, US Customs and Border Protection, US Department of Health and Human Services, US Department of Homeland Security, US Immigration and Customs Enforcement, United States Citizenship and Immigration Services. (Darrow, Joseph) (Entered: 07/09/2019)
153 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing held on 6/28/2019 before Judge Marsha J. Pechman.

Parties have seven (7) calendar days to ﬁle with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Debbie Zurn, debbie_zurn@wawd.uscourts.gov, 206-370-8504.

Release of Transcript Restriction set for 10/7/2019, (DZ) (Entered: 07/09/2019)

07/12/2019

154 ORDER OF USCA (19-35565) staying the district court's orders 110 149 re: Preliminary Injunction, re: 150 Notice of Appeal,, ﬁled by Elizabeth Godfrey, US Immigration and Customs Enforcement, Matthew T. Albence, US Department of Homeland Security, William P Barr, James Janecka, David Shinn, Charles Ingram, United States Citizenship and Immigration Services, L Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, US Customs and Border Protection, Kevin K. McAleenan, John P. Sanders. (GT) Modiﬁed on 7/12/2019 to link to orders being stayed (PM). (Entered: 07/12/2019)

07/22/2019

155 ORDER OF USCA (19-35565) as to 150 Notice of Appeal,, ﬁled by Elizabeth Godfrey, US Immigration and Customs Enforcement, Matthew T. Albence, US Department of Homeland Security, William P Barr, James Janecka, David Shinn, Charles Ingram, United States Citizenship and Immigration Services, L Francis Cissna, Lowell Clark, Executive Ofﬁce for Immigration Review, US Customs and Border Protection, Kevin K. McAleenan, John P. Sanders. (GT) (Entered: 07/22/2019)

07/23/2019

156 MINUTE ORDER terminating the Government's 136 Motion to Dismiss while the appeal is pending. Once the appeal is resolved, the Government is directed to re-ﬁle its motion to dismiss if it still wishes the Court to rule upon it. Authorized by Judge Marsha J. Pechman. (PM) (Entered: 07/23/2019)

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157 STIPULATION AND PROPOSED ORDER Clarifying Scope of Class by parties (Bingham, Lauren) (Entered: 08/28/2019)
158 JOINT STIPULATION AND ORDER CLARIFYING SCOPE OF CLASS re parties' 157 Stipulation. The Court hereby CLARIFIES that the Bond Hearing Class includes individuals who otherwise satisfy the requirements for class membership but were determined to have a credible fear of torture, rather than only individuals determined to have a credible fear of persecution. Accordingly, the preliminary injunction in this case (as partially stayed by the Ninth Circuit), applies to these individuals. Signed by Judge Marsha J. Pechman. (PM) (Entered: 08/29/2019)
159 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Leila Kang for Plaintiffs Ibis Guzman, Blanca Orantes, Yolany Padilla, Baltazar Vasquez. (Kang, Leila) (Entered: 12/10/2019)
160 OPINION FROM USCA (19-35565) (NOT THE MANDATE) as to 150 Notice of Appeal, ﬁled by Elizabeth Godfrey, US Immigration and Customs Enforcement, Matthew T Albence, US Department of Homeland Security, William P Barr, James Janecka, David Shinn, Charles Ingram, United States Citizenship and Immigration Services, Lowell Clark, L Francis Cissna, Executive Ofﬁce for Immigration Review, US Customs and Border Protection, Kevin K McAleenan, John P. Sanders. AFFIRMED IN PART; VACATED ANDREMANDED IN PART (CDA) (Entered: 03/27/2020)

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 Case 2:18-cv-00928-MJP Document 91 Filed 12/11/18 Page 1 of 20

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10

YOLANY PADILLA, et al.,

CASE NO. C18-928 MJP

11

Plaintiffs,

ORDER ON MOTION TO DISMISS

12

v.

13

U.S. IMMIGRATION AND

CUSTOMS ENFORCEMENT, et al.,

14

Defendants.

15

16 The above-entitled Court, having received and reviewed:
17 1. Defendants’ Motion to Dismiss (Dkt. No. 36),
18 2. Plaintiffs’ Opposition to Defendants’ Motion to Dismiss (Dkt. No. 69),
19 3. Defendants’ Reply in Support of Motion to Dismiss (Dkt. No. 76),
20 all attached declarations and exhibits, and relevant portions of the record, and having heard oral
21 argument on the motion, rules as follows:
22 IT IS ORDERED that the motion is PARTIALLY GRANTED and PARTIALLY
23 DENIED; Plaintiffs’ claims relating to violations of the Administrative Procedures Act are
24

ORDER ON MOTION TO DISMISS - 1

Case 2:18-cv-00928-MJP Document 91 Filed 12/11/18 Page 2 of 20

1 DISMISSED with prejudice (except as to the claims of the Bond Hearing class for certain

2 procedural safeguards); the motion to dismiss the remainder of Plaintiffs’ claims is DENIED.

3

Background

4

Plaintiffs bring this action against U.S. Immigration and Customs Enforcement (“ICE”),

5 the U.S. Department of Homeland Security (“DHS”), U.S. Customs and Border Protection

6 (“CBP”), U.S. Citizenship and Immigration Services (“USCIS”), the Executive Office for

7 Immigration Review (“EOIR”), and various government officials in their official capacities

8 (collectively, the “government”) challenging the legality of (1) “the government’s policy or

9 practice of excessively prolonging the detention of asylum seekers placed in expedited removal

10 proceedings by failing to promptly provide them their credible fear interview and

11 determination,” and (2) “the government’s related policy or practice of excessively prolonging

12 the detention of asylum seekers by failing to promptly conduct the bond hearings required by

13 federal law after an asylum seeker’s positive completion of their credible fear interview.” (See

14 Dkt. No. 26.)

15 I. Statutory / Regulatory Scheme

16

The statutes at issue in this litigation are 8 U.S.C. §§ 1225, 1226, and 1252. In general,

17 these statutes provide as follows:

18

If an immigration officer determines that an alien arriving in the U.S. is “inadmissible”

19 (as defined in § 1182), the alien is subject to removal without further hearing unless the alien

20 indicates an intention to apply for asylum or a fear of persecution. 8 U.S.C. § 1225(b)(1)(A)(i).

21 An alien indicating an intention to apply for asylum or a fear of persecution is referred for an

22 interview to determine whether he or she has a credible fear of persecution or torture if returned

23 to their home country (a “credible fear interview”). Id., § 1225(b)(1)(A)(ii). Any alien subject to

24

ORDER ON MOTION TO DISMISS - 2

Case 2:18-cv-00928-MJP Document 91 Filed 12/11/18 Page 3 of 20

1 this process “shall be detained pending a final determination of credible fear of persecution.”

2 Id., § 1225(b)(1)(B)(iii)(IV).

3

An asylum officer conducts the credible fear interview. If the officer determines that the

4 alien has a credible fear of persecution, “the alien shall be detained for further consideration of

5 the application for asylum.” Id., § 1225(b)(1)(B)(i), (ii). Aliens awaiting either a credible fear

6 interview or “further consideration of the application for asylum” are included in the category of

7 aliens “pending a decision on whether the alien is to be removed” and are detained pursuant to §

8 1226(a). Aliens awaiting further consideration of an application for asylum may be eligible for a

9 custody determination by DHS and then a bond hearing before an immigration judge (“IJ”). 8 10 C.F.R. § 1003.19(h)(2).1

11

Every alien detained pursuant to § 1226(a) is individually considered for release on bond

12 by an ICE officer and served with a custody determination form. Id., § 236.1(c)(8). If bond is

13 denied or the detainee believes bond is set too high, he or she may request a “redetermination” of

14 the custody decision by an IJ. Id., §§ 236.1(d)(1), 1003.19, 1236.1(d)(1). At the bond hearing

15 the alien has the burden of proving that he or she is not a flight risk or a danger to the

16 community.

17

The IJ’s decision may be appealed to the Board of Immigration Appeals (“BIA”). Id., §

18 236.1(d)(3)(i), 1236.1(d)(3)(i). The bond hearings are not usually recorded, but upon appeal, the

19 IJ will prepare a written memorandum outlining the grounds for the decision.

20 II. The Named Plaintiffs

21

The named plaintiffs in this action are persons seeking asylum in the United States:

22

23 24 1 The statutes contain no time periods within which either the credible fear interview or bond hearing must be held.

ORDER ON MOTION TO DISMISS - 3

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1

• Yolany Padilla: Shortly after her apprehension for illegal entry into the United States

on May 16, 2018, Ms. Padilla expressed a fear of being removed to her native

2

Honduras. (Dkt. No. 26, Second Amended Complaint (“SAC”) at ¶ 40.) Six weeks

after her entry, she was interviewed by an asylum officer and was found to have a

3

credible fear, at which point she became eligible for a bond hearing. She was granted

a bond hearing two days after her credible fear determination. (Id. at ¶ 66.) Ms.

4

Padilla was awarded bond and was released on July 6, 2018, after this lawsuit was

filed. (Id. at ¶¶ 66, 115.)

5

• Ibis Guzman: Ms. Guzman is also from Honduras and underwent a similar process to

6

Ms. Padilla, but was denied bond. (Id. at ¶¶ 32, 99.) She reserved appeal, but was

released by ICE in late July 2018. (Id. at ¶ 119.)

7

• Bianca Orantes: Shortly after her apprehension for illegal entry into the United

8

States, Ms. Orantes expressed a fear of returning to her native El Salvador. (Id. at ¶

44.) About five weeks following her entry, she was interviewed by an asylum officer

9

and found to have a credible fear. (Id. at ¶ 102.) She was granted a bond hearing

eleven days after her credible fear determination but was denied bond. Ms. Orantes

10

reserved appeal, but was released on July 24, 2018. (Id. at ¶¶ 121, 123.)

11

• Baltazar Vasquez: Shortly after his apprehension for illegal entry into the United

States, Mr. Vasquez expressed a fear of returning to his native El Salvador. (Id. at ¶

12

46.) About eight weeks after his entry, he was interviewed by an asylum officer and

found to have a credible fear. (Id. at ¶ 108). He was granted a bond hearing three

13

weeks after his credible fear determination. Mr. Vasquez stipulated to an $8,000

bond, waived appeal of the bond order, and was released. (Id. at ¶ 125.) 14

Plaintiffs seek injunctive and declaratory relief and seek to certify the following classes: 15

• Credible Fear Interview Class: “All detained asylum seekers in the United States

16

subject to expedited removal proceedings under 8 U.S.C. §1225(b) who are not provided

a credible fear determination within 10 days of requesting asylum or expressing a fear of

17

persecution to a DHS official.” (Id. at 30.)

18

• Bond Hearing Class: “All detained asylum seekers who entered the United States

without inspection, were initially subject to expedited removal proceedings under 8

19

U.S.C. §1225(b), were determined to have a credible fear of persecution, but are not

provided a bond hearing with a verbatim transcript or recording of the hearing within 7

20

days of requesting a bond hearing.” (Id. at 31.)

21

Plaintiffs filed their complaint on June 25, 2018 (Dkt. No. 1) and their SAC (Dkt. No. 26)

22 on August 22, 2018. The SAC focuses on the following claims:

23

• Count I (Violation of Due Process): Both the Credible Fear Interview and Bond

24

Hearing classes claim violations of their due process rights springing from their detention

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1

for “an unreasonable time” awaiting their credible fear interview and, post-credible fear

determination, their bond hearing. They seek as remedies (1) a ten-day deadline for the

2

credible fear interview and (2) a bond hearing within seven days of request, where the

3

government bears the burden of proof and where detainees are provided a verbatim

transcript of the hearing.

4 • Count II (Administrative Procedure Act): Both classes allege that their credible fear

5

interviews and bond hearings are being “unreasonably delayed” and held without

“appropriate procedural safeguards” in violation of the Administrative Procedure Act

6

(“APA”), 5 U.S.C. § 706.

7 • Count III (Violation of Asylum Statute): The government asserts, and Plaintiffs

8

conceded at oral argument, that Plaintiffs have abandoned this claim by virtue of their

failure to contest the government’s arguments for dismissal. 9

The government now moves to dismiss each of these claims. (Dkt. No. 36.) 10

11

Discussion

12

I. Standard of Review

13

Under Fed. R. Civ. P. 12(b)(6), the Court may dismiss a complaint for "failure to state a

14 claim upon which relief can be granted." In ruling on a motion to dismiss, the Court must

15 construe the complaint in the light most favorable to the non-moving party. Livid Holdings Ltd.

16 v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005). The Court must accept all

17 well-pleaded allegations of material fact as true and draw all reasonable inferences in favor of

18 the plaintiff. Wyler Summit P’ship v. Turner Broad. Sys., 135 F.3d 658, 661 (9th Cir. 1998).

19

Dismissal is appropriate where a complaint fails to allege "enough facts to state a claim to

20 relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A

21 claim is plausible on its face "when the plaintiff pleads factual content that allows the court to

22 draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft

23 v. Iqbal, 129 S. Ct. 1937, 1949 (2009). As a result, a complaint must contain "more than labels

24

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1 and conclusions, and a formulaic recitation of the elements of a cause of action will not do."

2 Twombly, 550 U.S. at 555.

3

II. Credible Fear Interview Claims

4

A. Jurisdiction

5

The government first claims that this Court lacks jurisdiction over Plaintiffs’ claims

6 challenging the timing of the credible fear interviews under 8 U.S.C. § 1252(a)(2)(A). To be

7 clear, the legislation is replete with subsections limiting judicial review of the government’s

8 actions under the statute. See 8 U.S.C. § 1252(a)(2)(iv), § 1252(b)(9), § 1252(e)(1), §

9 1252(e)(3). However, the Court finds that judicial review of the government’s policies and

10 practices under this statutory scheme is permissible based upon a line of cases which have

11 wound through the Ninth Circuit and the U.S. Supreme Court, culminating in Rodriguez v.

12 Marin, __ F.3d __, 2018 WL 6164602 (9th Cir. Nov. 19, 2018).

13

The Rodriguez line of cases concerns a group of aliens who assert, on due process

14 grounds, that the statutory scheme embodied in §§ 1225 and 1226 does not authorize

15 “prolonged” detention without a bond hearing where the government would bear the burden of

16 proving, by clear and convincing evidence, that continued detention is justified. Jennings v.

17 Rodriguez, 138 S.Ct. 830, 839 (2018). While the Supreme Court would not countenance the

18 Ninth Circuit’s use of “constitutional avoidance” to impose certain bond hearing procedural

19 requirements not contained in the statutes, it nevertheless had no difficulty in concluding that the

20 restrictive judicial review language of the statute “does not deprive us of jurisdiction.” Id. at

21 840.

22

Like the Plaintiffs in this case, the Rodriguez petitioners “[were] not asking for review of

23 an order of removal. . . [were] not challenging the decision to detain them in the first place or to

24

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1 seek removal; and . . . [were] not even challenging any part of the process by which their

2 removability will be determined.” Id. at 841. In the face of such a challenge, the Supreme Court

3 found no jurisdictional bar, as the statutory restrictions on judicial review cannot preclude a

4 challenge to the overall constitutionality of the legislation or whether it is being applied in a

5 constitutional fashion. Id. at 840. The Ninth Circuit followed suit on remand. See Rodriguez,

6 2018 WL 6164602. In light of what it identified as “vital constitutional issues,” the Ninth Circuit

7 was moved to remark that

8

We have grave doubts that any statute that allows for arbitrary prolonged

detention without any process is constitutional or that those who founded our

9

democracy precisely to protect against the government’s arbitrary deprivation of

10

liberty would have thought so. Arbitrary civil detention is not a feature of our

American government.

11 Id. at *3.
12 While Plaintiffs’ factual circumstances and the relief which they seek are not on all fours
13 with the petitioners in Rodriguez, the Court sees no difference between the two cases in terms of
14 the constitutional issue (“arbitrary prolonged detention”) at stake. While the outcome of the
15 litigation is not certain at this point, the Court’s jurisdiction to consider the claims of the
16 Credible Fear Interview class “contesting the constitutionality of the entire statutory scheme
17 under the Fifth Amendment,” Jennings, 138 S.Ct. at 841, is not in question.
18 The Court recognizes that the existence of Fifth Amendment issues does not, by itself,
19 confer jurisdiction upon it to hear Plaintiffs’ claims. However, Plaintiffs here seek habeas relief
20 for their alleged injuries and “[i]t is now clear that ‘federal district court has habeas jurisdiction
21 under 28 U.S.C. §2241 to review’” complaints by detained aliens “for constitutional claims and
22 legal error. Although [the immigration statutory scheme] restricts jurisdiction in the federal
23 courts in some respects, it does not limit habeas jurisdiction over constitutional claims or
24

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1 questions of law." Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011)(citing V. Singh

2 v. Holder, 638 F.3d 1196, 1200, 1202 (9th Cir. 2011)).

3

B. Constitutional Rights

4

In addition to challenging jurisdiction, the government also asserts that, as “non-admitted

5 aliens,” the members of the Credible Fear Interview class have no constitutional right to enter the

6 United States or have the determination of their admissibility subject to any procedural

7 safeguards other than those Congress has seen fit to provide. The issue of whether and to what

8 extent Plaintiffs have any due process rights is dependent on how their status is characterized;

9 simply put, are they “excludable aliens” with little or no due process rights, or are they aliens

10 who are in the country illegally, but nevertheless in the country such that their presence entitles

11 them to certain constitutional protections?

12

There is a string of cases stretching from the 1950s to the present concerning what are

13 known as “excludable aliens” – defined as “those who seek admission but have not been granted

14 entry into the United States.” Garcia-Mir v. Smith, 766 F.2d 1478, 1484 (11th Cir. 1985). As

15 the Ninth Circuit has stated:

16

The Supreme Court has consistently recognized that ‘our immigration laws have

long made a distinction between those aliens who have come to our shores

17

seeking admission . . . and those who are within the United States after an entry,

irrespective of its legality. In the latter instance, the Court has recognized

18

additional rights and privileges not extended to those in the former category who

are merely 'on the threshold of initial entry.' [ ] In Mezei, the Supreme Court

19

noted that ‘aliens who have once passed through our gates, even illegally, may be

expelled only after proceedings conforming to traditional standards of fairness

20

encompassed in due process of law.’ An excludable alien, however, has no

procedural due process rights regarding his admission or exclusion and thus

21

‘stands on a different footing: 'Whatever the procedure authorized by Congress is,

it is due process as far as an alien denied entry is concerned.' . . . However, once

22

an alien gains admission to our country and begins to develop the ties that go with

permanent residence, his constitutional status changes accordingly.

23

Barrera-Echavarria v. Rison, 44 F.3d 1441, 1448-49 (9th Cir. 1995) (citations omitted).

24

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1

This principle has given rise to the “entry fiction,” a legal concept which holds that

2 “excludable aliens,” “[e]ven if physically present in this country, . . . are legally detained at the

3 border” and treated as if they have not entered the country. Garcia-Mir, supra at 1484.

4

However, there is also Supreme Court precedent that “once an individual has entered the

5 country, he is entitled to the protection of the Due Process Clause.” United States v. Raya-Vaca,

6 771 F.3d 1195, 1202 (9th Cir. 2014)(emphasis in original). This concept is reflected in the line

7 of cases following Zadvydas v. Davis, 533 U.S. 678 (2001), where the Supreme Court

8 differentiated between aliens “seeking entry” into the United States and those already within our

9 borders:

10

The distinction between an alien who has effected an entry into the United States

and one who has never entered runs throughout immigration law. . . . [O]nce an

11

alien enters the country, [his/her] legal circumstance changes, for the Due Process

12

Clause applies to all "persons" within the United States, including aliens, whether

their presence here is lawful, unlawful, temporary, or permanent.

13 Zadvydas, 533 U.S. at 693.
14 The government argues that Plaintiffs are “excludable” aliens with no inherent due
15 process rights; Plaintiffs naturally argue that they are “Raya-Vaca aliens,” detained after crossing
16 over the border of this country and therefore entitled to a wider array of constitutional
17 protections. The factual allegations regarding the entry circumstances of each Plaintiff are as
18 follows:
19

20

• Ms. Padilla “crossed the U.S.-Mexico border” and was arrested as she was “making her

way to the closest Port of Entry.” (SAC, ¶ 40.)

21 • Ms. Guzman “crossed the U.S.-Mexico border” and was arrested by a CBP agent. (Id. at

22

¶ 42.)

23

• Ms. Orantes “crossed the U.S.-Mexico border . . . immediately walked to the CBP

station to request asylum,” and was arrested. (Id. at ¶ 44.)

24

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1

• Mr. Vasquez “crossed the U.S.-Mexico border” and was arrested by a CBP agent. Id. at ¶

46.)

2

Faced with a motion to dismiss, this Court must accept all well-plead allegations of 3

material fact as true and draw all reasonable inferences in favor of the plaintiff. Wyler, 135 F.3d 4

at 661. Under this standard, the Court concludes that Plaintiffs have adequately plead that they

5

were within the borders of this country without permission when detained, and thus enjoy

6

inherent constitutional due process protections which they are entitled to vindicate through the 7

legal process. The Court will not dismiss Plaintiffs’ claims on the grounds that they do not have 8

a right to the constitutional protections they seek. Defendants’ motion in this regard is DENIED.

9

C. Credible Fear Claims Under the APA 10

The scope of review under the APA is described at 5 U.S.C. § 706, which states: 11

To the extent necessary to decision and when presented, the reviewing court shall

12

decide all relevant questions of law, interpret constitutional and statutory

provisions and determine the meaning or applicability of the terms of an agency

13

action. The review court shall—

14 (1) compel agency action unlawfully withheld or unreasonably delayed; and

15

(2) hold unlawful and set aside agency action, findings, and conclusions found to

16

be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in

17

accordance with law;

18

(B) contrary to constitutional right, privilege, or immunity

(C) in excess of statutory jurisdiction, authority, or limitations, or short of

19

statutory right;

(D) without observance of procedure required by law;

20

(E) unsupported by substantial evidence in a case subject to sections 556

21

and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

22

(F) unwarranted by the facts to the extent that the facts are subject to trial

de novo by the reviewing court.

23

Plaintiffs bring their claims under § 706(1) and § 706(2)(A) and (B). 24

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1

1. Unreasonable Delay (§ 706(1))

2

The Court questions whether the issue of “unreasonable delay” is amenable to resolution

3 by class action lawsuit, as, absent a statutory deadline, the factors which go into a decision of

4 when to schedule an interview are highly specific and will require individualized factual

5 inquiries to determine their “reasonableness.” See Diop v. ICE/Homeland Sec., 656 F.3d 221,

6 233 (3rd Cir. 2011) (“[The determination of the point at which a delay becomes ‘unreasonable’]

7 will necessarily be a fact-dependent inquiry that will vary depending on individual

8 circumstances. We decline to establish a universal point at which [it] will always be considered

9 unreasonable.”); see also Sopo v. U.S. Att’y Gen., 825 F.3d 1199, 1215 (11th Cir. 2016), vacated 10 on unrelated grounds, 890 F.3d 952 (11th Cir. 2018)2 (‘“[R]easonableness, by its very nature is a

11 fact-dependent inquiry requiring an assessment of all the circumstances of any given case.’ A

12 bright-line approach strips away the essence of a reasonableness standard.”). Aside from arguing

13 that there is no Ninth Circuit authority discouraging determinations of “reasonableness” on a

14 class-wide basis, Plaintiffs have no response to the rationale enunciated by the Third and

15 Eleventh Circuits in finding that “reasonableness” in this context is not amenable to class-wide

16 resolution.

17

The government also contends that Plaintiffs fail to state a claim for relief under § 706(1)

18 because they have no “live” claims (i.e., they all have been provided with credible fear

19 interviews and released from detention). But “inherently transitory” claims such as those

20 presented by Plaintiffs will not be defeated by such a defense as long as any member of the class

21 still has standing to bring the claim. Sosna v. Iowa, 419 U.S. 393, 402 (1975) (“The controversy

22

23 2 The case was vacated by stipulation when appellant’s removal rendered his appeal moot; its holdings are still valid 24 legal precedent.

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Case 2:18-cv-00928-MJP Document 91 Filed 12/11/18 Page 12 of 20

1 may exist, however, between a named defendant and a member of the class represented by the

2 named plaintiff, even though the claim of the named plaintiff has become moot.”).

3

Nevertheless, the Court is persuaded that the reasonableness or unreasonableness of

4 delay is not suitable to resolution by means of class action. Accordingly, Defendants’ motion to

5 dismiss Plaintiffs’ 706(1) claim is GRANTED.

6 2. No Final Agency Action (§ 706(2))
7 Unless an agency’s actions are made reviewable by statute, they are only reviewable if
8 they are a “final agency action.” 5 U.S.C. § 704. See Norton v. S. Utah Wilderness Alliance,
9 542 U.S. 55, 61-62 (2004); Navajo Nation v. Dept. of the Interior, 876 F.3d 1144, 1171 (9th Cir.
10 2017). Whether an agency action is “final” is determined by two factors: (1) whether it
11 “mark[s] the ‘consummation’ of the agency’s decisionmaking process,” and (2) whether the
12 action is “one by which ‘rights or obligations have been determined,”’ or from which “legal
13 consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78 (1977).
14 The government contends that there is no “final agency action” at issue in this lawsuit,
15 thus no cause of action under the APA. Plaintiffs make the following arguments:
16 First, Plaintiffs contend that the credible fear interview marks the culmination of a
17 decision-making process (i.e., because once the interview is concluded, the matter is transferred
18 from DHS to EOIR). While this may be the case, Plaintiffs are not seeking a review of the
19 outcome of a credible fear interview but are instead challenging the timing of the interview itself.
20 When the interview is held does not mark the culmination of any decision-making process.
21 Second, Plaintiffs contend that the credible fear interview is a process by which rights are
22 determined and from which legal consequences flow. Again, this is correct with regard to the
23 interview itself (as the decision following the interview will determine whether the applicant will
24

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Case 2:18-cv-00928-MJP Document 91 Filed 12/11/18 Page 13 of 20

1 be able to apply for relief from the immigration court or be subject to expedited removal), but

2 inapplicable to the question of when the interview is conducted.

3

Defendants’ motion to dismiss the claim of the Credible Fear Interview class under the

4 APA is GRANTED.

5

III. Bond Hearing Claims

6

Plaintiffs’ claims regarding the bond hearings fall into two categories: (1) the demand for

7 a hearing within seven days of request and (2) the demand for greater procedural rights (i.e.,

8 verbatim transcripts or recordings of every hearing, written findings, and that the burden of proof

9 be shifted to the government). (SAC at ¶¶ 148, 151-152, 163-165.)

10

A. Constitutional Claims

11

As an initial matter, the Court is not persuaded by the government’s arguments that the

12 Bond Hearing class has failed to state a claim for relief on constitutional grounds. After

13 reviewing the regulations surrounding the bond hearing process, the government simply asserts

14 that it provides “ample process” and that, in the absence of a statutory deadline,

15

leaving scheduling determinations to the immigrations courts appropriately

balances the immigration courts’ interest in docket management while allowing

16

them the flexibility to adapt to fluctuations in cases and to make prioritization

17

decisions. Given these considerations, and the fact-specific inquiry required for

Plaintiffs’ due process (and related APA challenges), they cannot state a claim for

18

an unbending seven-day bond hearing rule.

19 (Dkt. No. 36 at 15.) This argument is made without analysis or case citation.

20

To the contrary, a plethora of district court and Board of Immigration Appeals cases

21 affirm the requirement of a “prompt” or “expeditious” bond hearing for immigrants seeking

22 entry. See, e.g., Matter of Chirinos, 16 I&N Dec. 276, 277 (BIA 1977); Matter of Valles-Perez,

23 21 I& Dec. 769, 772 (BIA 1997); Saravia v. Sessions, 280 F. Supp. 3d 1168, 1177 (N.D. Cal.

24

ORDER ON MOTION TO DISMISS - 13

Case 2:18-cv-00928-MJP Document 91 Filed 12/11/18 Page 14 of 20

1 2017). The Court is not required at this stage to determine the reasonableness of the precise time

2 limit Plaintiffs seek to impose on the bond hearing process in order to find that they have rights

3 to adjudicate, and will not dismiss their claims on this ground.

4

With respect to their other due process claims concerning the bond hearing procedure,

5 Plaintiffs have provided no support for their assertion that the government should bear the

6 burden of proof in the bond hearing, or that the Bond Hearing class members are entitled to a

7 “presumption of release”. They simply state that “placing the burden of continued detention on

8 DHS and restoring the presumption of release is consistent with Congressional intent.” (Dkt.

9 No. 69 at 17.) While Plaintiffs allude to briefing in their pending motion for a preliminary

10 injunction which allegedly supports this position, the Court is not inclined to permit Plaintiffs to

11 evade the page limitations by incorporating arguments from other motions by reference. By

12 contrast, the government presents several paragraphs laying out how and why the burden of

13 proof shifted from the government to the applicant following the adoption of the Illegal

14 Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). (Dkt. No. 36 at 16-

15 17.)

16

The Supreme Court’s 2018 opinion in Jennings provides further support for the

17 government’s position: Jennings overturned Ninth Circuit decision ordering the government to

18 provide periodic bond hearings for detained immigrants at which the government bore the

19 burden of proving by clear and convincing evidence that continued detention was necessary.

20 Jennings, 138 S.Ct at 836. The Supreme Court observed in that opinion that “[n]othing in §

21 1226(a)’s text . . . even remotely supports the imposition of either of those requirements.” Id. at

22 847.

23

24

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1

With respect to Plaintiffs’ demand for transcripts and/or recordings and a “particularized”

2 written finding in bond hearings, the government points out that while 8 U.S.C. § 1229a(b)(4)(C)

3 specifically requires a “complete record . . . of all testimony and evidence produced” in removal

4 hearings, there is no equivalent requirement in the statute for preliminary, non-removal hearings

5 including bond determinations.3

6

However, the due process requirements of the Constitution compel certain procedures

7 regardless of whether they are or are not included in a statute. The Ninth Circuit has already

8 found a Fifth Amendment requirement for a contemporaneous record of a bond hearing in

9 similar circumstances:

10

[W]e agree that due process requires a contemporaneous record of [immigration

bond] hearings and that the memorandum decision presently provided is

11

insufficient. We hold that, in lieu of providing a transcript, the immigration court

12

may record [] hearings and make the audio recordings available for appeal upon

request. Although we determine that such audio recordings satisfy due process,

13

and are feasible for the government to provide, we do not decide whether they are

the only constitutionally adequate alternative to transcripts.

14

Singh v. Holder, 638 F.3d 1196, 1208 (9th Cir. 2011). As discussed in the preceding section 15

concerning the Credible Fear Interview class, Plaintiffs are entitled to certain constitutional 16

protections simply by virtue of their presence within this country. At this stage, the Court does 17

not determine whether the particular remedies they seek are constitutionally supported, but will 18

allow Plaintiffs to move forward with their claims of constitutional due process violations in the 19

bond hearing procedure. 20

21 3 The government goes on to claim that, because “[t]he Supreme Court has declined to impose a contemporaneous
verbatim record requirement on criminal trials,” the Court should not do so in immigration custody redetermination
22 hearings. (Dkt. No. 36 at 18 (emphasis in original).) The problem with this argument is that every case cited in
support of this proposition says the opposite: that indigent defendants must be provided with “a record of sufficient
23 completeness” (Coppedge v. United States, 369 U.S. 438, 446 (1962) for an appeal or “a complete transcript of the
proceedings at trial.” United States v. Carrillo, 902 F.2d 1405, 1409 (9th Cir. 1990).
24

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1

Defendants’ motion to dismiss the constitutional claims of the Bond Hearing Class is

2 DENIED.

3

B. Administrative Procedures Act (APA)

4

1. Unreasonable Delay (§ 706(1))

5

As with the bond hearing claims, the government argues that the issue of “unreasonable

6 delay” is not amenable to resolution on a class-wide basis because there is no “uniform”

7 unreasonable delay, and the length of any delay necessarily requires an individualized inquiry.

8

The government cites to a D.C. Circuit opinion for the holding that “whether the delay. . .

9 should be deemed ‘unreasonable’. . . cannot be decided in the abstract, . . . but will depend in

10 large part, as we have said, upon the complexity of the task at hand, the significance (and

11 permanence) of the outcome, and the resources available to the agency.” Mashpee Wampanoag

12 Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1102 (D.C. Cir. 2003). Plaintiffs counter that they

13 are not requesting a decision “in the abstract,” but rather a decision based on an analysis of the

14 factors set forth in Telecomms. Res. & Action v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (“TRAC”).4

15 Those factors, which courts consider in determining whether an agency’s delay is “so egregious

16 as to warrant mandamus,” include:

17

(1) the time agencies take to make decisions must be governed by a “rule of

reason;” (2) where Congress has provided a timetable or other indication of the

18

speed with which it expects the agency to proceed in the enabling statute, that

statutory scheme may supply content for this rule of reason; (3) delays that might

19

be reasonable in the sphere of economic regulation are less tolerable when human

health and welfare are at stake; (4) the court should consider the effect of

20

expediting delayed action on agency activities of a higher or competing priority;

(5) the court should also take into account the nature and extent of the interests

21

prejudiced by the delay; and (6) the court need not find any impropriety lurking

behind agency lassitude in order to hold that agency action is unreasonably

22

delayed.

23
4 Once again, Plaintiffs refer the Court to their motion for a preliminary injunction motion for analysis of these
24 factors, and once again, the Court will not consider argument from other pleadings incorporated by reference.

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Case 2:18-cv-00928-MJP Document 91 Filed 12/11/18 Page 17 of 20
1 Id. at 80 (internal quotations omitted). Because any analysis of these factors, as well as analysis
2 of the “reasonableness” of delay, will necessarily require individualized inquiry, the Court finds
3 the § 706(1) claim incapable of class-wide resolution.
4 While Plaintiffs do cite to other cases where a TRAC analysis has been employed in the
5 class action context, these cases are distinguishable from this matter in that both involved an
6 agency’s failure to meet regulatory deadlines. See Roshandel v. Chertoff, Case No. C07-
7 1739MJP, 2008 WL 1969646(W.D. Wash. May 5, 2008); Rosario v. USCIS, Case No. C15-
8 813JLR, 2017 WL 3034447 at *9-10 (W.D. Wash. July 18, 2017)5.
9 In the instant case, the absence of any firm regulatory or statutory deadline will require
10 the Court to engage in individualized, fact-dependent inquiries of “reasonableness,” and such
11 necessity requires a finding that the Bond Hearing class has failed here to adequately state a
12 claim upon which relief can be granted. Defendants’ motion to dismiss this portion of the Bond
13 Hearing class’ claim is GRANTED.
14 2. No Final Agency Action (§ 706(2))
15 To state a claim under the APA with respect to their bond hearing claims, Plaintiffs must
16 establish the existence of a “final agency action” which “marks the ‘consummation’ of the
17 agency’s decisionmaking process” and either determines “rights or obligations” or from which
18 “legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78 (1977).
19 With respect to the Bond Hearing class’ attempt to impose a deadline on the bond
20 hearings via the APA, the Court’s analysis tracks that of the identical request made by the
21
22
23 5 “‘[A court] need not undertake TRAC’s six-factor balancing inquiry’ where a regulation imposes a firm deadline[].
Accordingly, the court rejects Defendants’ argument that the individualized TRAC inquiry undermines
24 commonality.” Id. at *10.
ORDER ON MOTION TO DISMISS - 17

Case 2:18-cv-00928-MJP Document 91 Filed 12/11/18 Page 18 of 20

1 Credible Fear Interview class. The timing of the bond hearing does not represent a “final agency

2 action” and Plaintiffs cannot adequately state a claim for this particular relief under that statute.

3

The same cannot be said of the Bond Hearing Class’ claim that failure to accord them

4 certain procedural safeguards violates the APA. While the government argues that there is no

5 “policy” with respect to either the timing of the bond hearing or the procedural rights accorded to

6 bond applicants, and therefore no determination of rights or obligations and no “final agency

7 action,” the Court disagrees, and concludes that its practice of placing the burden of proof on

8 detainees6 and not providing either a verbatim record nor particularized written findings for each

9 hearing constitute a “policy” for purposes of this claim.7 The procedural defects alleged by the

10 Bond Hearing class are part and parcel of the bond hearing, which is indisputably a “final agency

11 action” from which legal consequences flow. If Plaintiffs can establish that these alleged defects

12 violate their constitutional rights, they are entitled to relief under the APA.

13

Defendants’ motion to dismiss the claim of the Bond Hearing class under § 706(2) of the

14 APA will be GRANTED IN PART (with respect to the timing of the bond hearing) and DENIED

15 IN PART (with respect to the procedural rights which Plaintiffs seek to impose via this cause of

16 action).

17

IV. Asylum Statutes (§ 1225(b)(1), § 1158(a)(1), 8 C.F.R. §§ 235.3(b)(4), 208.30,

1003.42)

18 Plaintiffs indicated at oral argument their intent to abandon this claim, therefore

19 Defendants’ motion to dismiss this claim is GRANTED.

20

21 6 The Court also is not persuaded by the government’s claim that the burden of proof standards are set by statute, not
by agency action. In Jennings, the Supreme Court noted the absence of any requirement in § 1226(a) regarding the
22 burden of proof, and its rationale does not defeat Plaintiffs’ claim. 138 S.Ct. at 847-48.
7 Plaintiffs cite BIA case law (Chirinos, supra), EOIR Operating Policies and Procedures Memorandum, and Ninth
23 Circuit precedent that “[a]gency action . . . need not be in writing to be final and judicially reviewable.” R.I.L-R v.
Johnson, 80 F. Supp. 3d 164, 184 (D.C. Cir. 2015) (citing Venetian Casino Resort LLC v. EEOC, 530 F.3d 925, 929
24 (D.C. Cir. 2008)).

ORDER ON MOTION TO DISMISS - 18

Case 2:18-cv-00928-MJP Document 91 Filed 12/11/18 Page 19 of 20

1

V. Injunctive Relief

2

The government points to § 1252(f)(1)’s “Limit on injunctive relief”:

3

Regardless of the nature of the action or claim or of the identity of the party or

parties bringing the action, no court (other than the Supreme Court) shall have

4

jurisdiction or authority to enjoin or restrain the operation of the provisions of

chapter 4 of title II [8 USCS §§ 1121 et seq.] . . . other than with respect to the

5

application of such provisions to an individual alien against whom proceedings

under such chapter have been initiated.

6 The government argues that this language bars the injunctive relief sought by Plaintiffs. The

7 Court disagrees. Plaintiffs are not asking the Court to “enjoin or restrain the operation of the

8 provisions” of any statute, but instead seek an injunction against actions and policies that violate

9 those statutes and associated constitutional protections. There are a number of cases holding that

10 § 1252(f) is does not bar class-wide relief in this situation. See Rodriguez v. Hayes, 591 F.3d

11 1105, 1120 (9th Cir. 2010) (“Section 1252(f) prohibits only injunction of ‘the operation of’ the

12 detention statutes, not injunction of a violation of the statutes . . .”); see also Damus v. Nielsen,

13 313 F. Supp. 3d 317, 328 (D.D.C. 2018); Johnson, 80 F. Supp. 3d at 184; Abdi v. Duke, 280 F.

14 Supp. 3d 373, 409 (W.D.N.Y. 2017) (“Where, as here, the moving party does not seek to enjoin

15 the operation of §§ 1221-1231, and instead, seeks to enjoin violations of the statutory and

16 regulatory framework, the class-wide prohibition on injunctive relief is inapplicable.”) (internal

17 quotation marks omitted).

18 The government does not argue that Plaintiffs are not entitled to class-wide declaratory

19 relief.

20 Defendants’ request for dismissal of Plaintiffs claims for injunctive and declaratory relief

21 is DENIED.

22

23

24

ORDER ON MOTION TO DISMISS - 19

Case 2:18-cv-00928-MJP Document 91 Filed 12/11/18 Page 20 of 20

1

Conclusion

2

The Court has jurisdiction to hear Plaintiffs’ lawsuit. Both the proposed Credible Fear

3 Interview and Bond Hearing classes have succeeded in stating a claim under Count I for

4 constitutional relief from certain alleged violations by Defendants, and Defendants’ motion will

5 be DENIED in that regard. The Credible Fear Interview class has failed to state a claim under

6 the APA for which relief may be granted, and Defendants’ motion to dismiss is GRANTED in

7 that regard.

8

The Bond Hearing class has failed to state a claim for which relief may be granted under

9 § 706(1) or § 706(2) of the APA concerning the timing of their bond hearings; Defendants’

10 motion to dismiss is GRANTED in that regard. The Bond Hearing class has succeeded in stating

11 a claim for which relief may be granted under § 706(2) of the APA concerning the procedural

12 safeguards (i.e., burden of proof, provision of a verbatim transcript, written findings) to which

13 they allege they are entitled; Defendants’ motion is DENIED in that regard.

14

It is the further finding of this Court that Plaintiffs are entitled to seek injunctive and

15 declaratory relief for the causes of action which they have successfully plead. Defendants’

16 motion is DENIED in that regard as well.

17

18

The clerk is ordered to provide copies of this order to all counsel.

19

Dated December 11, 2018.

20

21

22

A
The Honorable Marsha J. Pechman United States Senior District Court Judge

23

24

ORDER ON MOTION TO DISMISS - 20

 
 Case 2:18-cv-00928-MJP Document 102 Filed 03/06/19 Page 1 of 13

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10

YOLANY PADILLA, et al.,

CASE NO. C18-928 MJP

11

Plaintiffs,

ORDER GRANTING

CERTIFICATION OF THE

12

v.

CLASSES

13

US IMMIGRATION AND CUSTOMS

ENFORCEMENT, et al.,

14

Defendants.

15

16 The above-entitled Court, having received and reviewed
17 1. Plaintiffs’ Amended Motion for Class Certification (Dkt. No. 37),
18 2. Defendants’ Opposition to Plaintiffs’ Amended Motion for Class Certification (Dkt.
19 No. 68),
20 3. Plaintiffs’ Reply in Support of Amended Motion for Class Certification (Dkt. No.
21 72),
22 all attached declarations and exhibits, and relevant portions of the record, rules as follows:
23

24

ORDER GRANTING CERTIFICATION OF THE CLASSES - 1

Case 2:18-cv-00928-MJP Document 102 Filed 03/06/19 Page 2 of 13

1

IT IS ORDERED that the motion is GRANTED, and the following classes are certified in

2 this matter:

3

(1) Credible Fear Interview Class: All detained asylum seekers in the United States subject

to expedited removal proceedings under 8 U.S.C. § 1225(b) who are not provided a

4

credible fear determination within ten days of the later of (1) requesting asylum or

expressing a fear of persecution to a DHS official or (2) the conclusion of any criminal

5

proceeding related to the circumstances of their entry, absent a request by the asylum

seeker for a delayed credible fear interview.

6

(2) Bond Hearing Class: All detained asylum seekers who entered the United States without

7

inspection, were initially subject to expedited removal proceedings under 8 U.S.C. §

1225(b), were determined to have a credible fear of persecution, but are not provided a

8

bond hearing with a verbatim transcript or recording of the hearing within seven days of

requesting a bond hearing.

9 IT IS FURTHER ORDERED that Plaintiffs Padilla, Guzman, Orantes and Vasquez are

10 designated as representatives of the Credible Fear Interview Class; Plaintiffs Orantes and

11 Vasquez as representatives of the Bond Hearing Class; and Plaintiffs’ counsel as class counsel.

12

13

Background

14

Plaintiffs are the named representatives of a putative class seeking declaratory relief

15 related to Defendants United States Immigration and Customs Enforcement (“ICE”), United

16 States Department of Homeland Security (“DHS”), United States Customs and Border Protection

17 (“CBP”) and United States Citizenship and Immigration Services (“USCIS”)’s policies and

18 practices with respect to the processing of asylum and credible fear claims and the setting of

19 bond for detained immigrants pending resolution of those claims. Their complaint was originally 20 filed on June 25, 2018 (Dkt. No. 1) and has been amended twice to date. (Dkt. Nos. 8, 26.)1

21

22 1 The complaint in this case was initially filed on June 25, 2018. (Dkt. No. 1.) Since then, it has

23

been twice amended. (Dkt. Nos. 8, 26.) The operative complaint is now the Second Amended Complaint. (Dkt. No. 26 (“SAC”).) Hereinafter, all references to the complaint refer to the

24 SAC.

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1

A. The Named Plaintiffs

2

Yolany Padilla: Shortly after her apprehension for illegal entry into the United States in

3 May 2018, Ms. Padilla expressed a fear of being removed to her native Honduras. (SAC at ¶

4 40.) Six weeks later, she was interviewed by an asylum officer and one day later, found to have

5 a credible fear. Two days later, she was granted a bond hearing, was awarded bond, and was

6 released in late July 2018. (Id. at ¶ 66, 115.)

7

Ibis Guzman: Ms. Guzman is also from Honduras and underwent a similar process to

8 Ms. Padilla. She was represented at her bond hearing but was denied bond. (Id. at ¶¶ 32, 99.)

9 She reserved appeal, but was released in late July 2018. (Id. at ¶ 119.)

10

Bianca Orantes: Shortly after her apprehension for illegal entry into the United States,

11 Ms. Orantes expressed a fear of returning to her native El Salvador. (Id. at ¶ 44.) About five

12 weeks later, she was interviewed by an asylum officer and, one day later found to have a credible

13 fear. (Id. at ¶ 102.) She was granted a bond hearing 11 days after her credible fear

14 determination, was denied bond, reserved appeal, but was released in late July 2018. (Id. at ¶¶

15 121, 123.)

16

Baltazar Vasquez: Shortly after his apprehension for illegal entry into the United States,

17 Mr. Vasquez expressed a fear of returning to his native El Salvador. (Id. at ¶ 46.) About eight

18 weeks later, he was interviewed by an asylum officer and found to have a credible fear. Three

19 weeks later, he was granted a bond hearing, stipulated to an $8,000 bond, waived appeal, and

20 was released. (Id. at ¶¶ 108, 125.)

21

B. The Class Claims

22

Plaintiffs seek certification of two classes: A Credible Fear Interview Class and a Bond

23 Hearing Class (collectively, the “Classes”), and assert the following remaining claims:

24

ORDER GRANTING CERTIFICATION OF THE CLASSES - 3

Case 2:18-cv-00928-MJP Document 102 Filed 03/06/19 Page 4 of 13

1

Count I (Violation of Due Process): Both Classes claim they were detained for “an

2 unreasonable time” while awaiting their credible fear interview and bond hearings. They seek to

3 impose (1) a ten-day deadline for the credible fear interview, running from the date on which the

4 non-citizen expresses a fear of returning to his or her country; and (2) a seven-day deadline for

5 the bond hearing, running from the date of a positive credible fear determination. In addition,

6 they seek procedural changes to the bond hearing including (1) that the government bear the

7 burden of proof; (2) that they be provided a recording or verbatim transcript of the hearing; and

8 (3) that the bond adjudicator issue written findings after every hearing.

9

Count II (Administrative Procedure Act): The Bond Hearing Class claims that

10 the procedural deficiencies they allege in the bond hearing process are an unconstitutional part

11 of a “final agency action” in violation of the Administrative Procedures Act, 5 U.S.C. § 706(2)

12 (“APA”).2

13

Discussion

14

Preliminarily, Defendants again argue that the restrictions in the immigration statutes at

15 issue deprive this Court of jurisdiction. These arguments are identical to those which the Court

16 has previously rejected. (See Dkt. No. 91 at 6-8; Dkt. No. 100.) The Court will not repeat its

17 reasoning here, but will repeat its finding that it has jurisdiction to hear Plaintiffs’ claims.

18

I. Legal Standard

19

Plaintiffs seek class certification under Federal Rules of Civil Procedure 23(a) and

20 23(b)(2). Rule 23(a) provides that a class may be certified only if: (1) the class is so numerous

21

22 2 Count II also claims that credible fear interviews and bond hearings were being “unreasonably

23

delayed” in violation of the APA, § 706(1). However, those claims were dismissed by the Court under Fed. R. Civ. P. 12(b)(6). (See Dkt. No. 91 at 11-12, 16-17.) Count III (Violation of

24 Asylum Statute) has been abandoned. (Id. at 18.)

ORDER GRANTING CERTIFICATION OF THE CLASSES - 4

Case 2:18-cv-00928-MJP Document 102 Filed 03/06/19 Page 5 of 13

1 that joinder of all members is impracticable; (2) there are questions of law or fact common to the

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

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

4 the class. Rule 23(b)(2) provides that a class may be maintained if “the party opposing the class

5 has acted or refused to act on grounds that apply generally to the class, so that . . . declaratory

6 relief is appropriate respecting the class as a whole.” A class may be certified under Rule

7 23(b)(2) where the challenged conduct is “such that it can be enjoined or declared unlawful only

8 as to all of the class members or as to none of them.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S.

9 338, 360 (2011).

10

II. Class Certification

11

A. Numerosity

12

Defendants do not challenge this element, and the Court finds that the requirement for

13 numerosity has been satisfied.

14

B. Commonality

15

Plaintiffs contend that, despite the differing factual circumstances among the class

16 members, all have suffered the same injury, and that injury is capable of class-wide resolution.

17 Wal-Mart, 564 U.S. at 350. Regarding the timing of credible fear interviews and bond hearings,

18 the alleged injury is the failure to hold the interviews and hearings in a constitutionally timely

19 manner (i.e., ten days and seven days, respectively, according to the complaint). Regarding the

20 bond hearings, the alleged injury is the claimed procedural deficiencies (i.e., that the burden of

21 proof is placed on the detainee; that no verbatim record and no written findings are provided

22 unless the ruling is appealed). The uniform resolution which is applicable to all members of the

23 class is a declaratory judgment that these practices are unconstitutional.

24

ORDER GRANTING CERTIFICATION OF THE CLASSES - 5

Case 2:18-cv-00928-MJP Document 102 Filed 03/06/19 Page 6 of 13

1

Regarding the timing of interviews and hearings, Defendants respond that the individual

2 circumstances of the class members and varying reasons for delays in their interviews and

3 hearings render this matter incapable of a uniform procedural resolution. For example, because

4 some of the class members have not entered at a recognized point of entry (“POE”), they are

5 subject to criminal prosecution, which may affect the timing of credible fear interviews and/or

6 bond hearings. This argument is addressed in detail in Section II.C, infra, with respect to

7 typicality and adequacy of the class representatives. The Court will confine itself here to a

8 finding that the criminal prosecutions faced by some class members will not suffice to defeat

9 commonality.

10

Regarding the procedural protections available at bond hearings, Defendants claim that

11 the balancing test in Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976) (which weighs the

12 private interest affected by the government action, the risk of erroneous deprivation of the

13 private interest, and the government interest in the action) requires an “individualized

14 assessment,” and that imposing a strict and uniform timetable on credible fear interviews and

15 bond hearings would be inconsistent with “the flexibility inherent in due process.” Mathews

16 contains no holding to this effect, nor does it hold that a classwide deprivation of due process

17 cannot be addressed by a uniform solution.

18

Defendants further contend that due process violations in the immigration context must

19 be subjected to a “harmless error” analysis. See, e.g., Prieto-Romero v. Clark, 534 F.3d 1053,

20 1066 (9th Cir. 2008); Singh v. Holder, 638 F.3d 1196, 1210 (9th Cir. 2011). While this does

21 appear to be the state of the law regarding individual litigants, neither of these cases were class

22 action suits analyzing the commonality of class claims. The fact that certain members of the

23 Classes may not have ultimately been harmed by the allegedly unconstitutional practices of the

24

ORDER GRANTING CERTIFICATION OF THE CLASSES - 6

Case 2:18-cv-00928-MJP Document 102 Filed 03/06/19 Page 7 of 13

1 government does not mean that these practices are constitutional. Furthermore, a finding that

2 any or all of these practices are unconstitutional means, ipso facto, that they have the potential to

3 harm anyone who is subjected to them. The purpose of classwide declaratory relief is to avert

4 any such likelihood and it is self-defeating to wait until after the fact of the bond hearing to

5 decide whether the practice is unconstitutional and harmful to a particular class member.

6

As Plaintiffs point out, “courts regularly resolve procedural due process claims on a

7 class-wide basis when addressing the constitutionality of immigration agencies’ policies and

8 practices.” See, e.g., Hernandez v. Sessions, 872 F.2d 976, 993-94 (9th Cir. 2017); Walters v.

9 Reno, 145 F.3d 1032, 1047 (9th Cir. 1998); Rojas v. Johnson, 305 F. Supp. 3d 1176, 1194-1200

10 (W.D.Wash. 2018).

11

The Court finds that the requirement for commonality has been satisfied.

12

C. Typicality and Adequacy3

13

Defendants attack the named Plaintiffs’ typicality and adequacy on multiple fronts, and

14 the Court will address each in turn:

15

1. The Named Plaintiffs’ Injury

16

Defendants contend that the named plaintiffs have received their credible fear

17 determinations and bond hearings and have all been released from custody such that they are no

18 longer facing any injury. The Court finds that these events do not defeat adequacy or typicality.

19

First, there is precedent for certifying a class where some of the proposed class members

20 have received some of the sought-after protections but others have not. See Walters, 145 F.3d at

21 1037; Rojas v. Johnson, C16-1024RSM, 2017 WL 1397749, at *5-6 (W.D. Wash. Jan. 10, 2017).

22

23 3 While typicality and adequacy are separate inquiries, they are in some ways overlapping and 24 the briefing tends to conflate the two factors. Accordingly, the Court will address them together.

ORDER GRANTING CERTIFICATION OF THE CLASSES - 7

Case 2:18-cv-00928-MJP Document 102 Filed 03/06/19 Page 8 of 13

1

Second, the resolution of the named Plaintiffs’ injuries occurred after the filing of the

2 litigation, and courts are traditionally reluctant to permit government agencies “to avoid

3 nationwide litigation that challenges the constitutionality of its general practices simply by

4 pointing to minor variations in procedure . . . designed to avoid the precise constitutional

5 inadequacies” which are at issue. Walters, 145 F.3d at 1046.

6

Third, Plaintiffs’ ultimate release is not a factor in a case where the nature of the class’s

7 common circumstance—immigration detention—renders their claims “inherently transitory”:

8

[W]here a plaintiff's claim becomes moot while she seeks to certify a class, her

action will not be rendered moot if her claims are "inherently transitory" (such

9

that the trial court could not have ruled on the motion for class certification before

10

her claim expired), as similarly-situated class members would have the same

complaint. The theory behind this rule is that such claims are "capable of

11

repetition, yet evading review."

12 Rivera v. Holder, 307 F.R.D. 539, 548 (W.D. Wash. 2015) (citing Pitts v. Terrible Herbst, Inc.,

13 653 F.3d 1081, 1090-91 (9th Cir. 2011) (describing how this "relation back" doctrine applies in

14 class actions)). Claims which would otherwise “evade review” are permitted to “relate back” to

15 the filing of the complaint for purposes of the certification analysis. Sosna v. Iowa, 419 U.S.,

16 393, 402 n.11 (1975).

17

Finally, Plaintiffs’ claims are aimed at Defendants’ policies and practices. If those

18 policies and practices are ultimately determined to be unconstitutional or otherwise violative of

19 federal law, the fact that not all class members will have been injured by those practices (due to

20 the “inherently transitory” nature of their claims) should not affect their ability to have those

21 practices declared unconstitutional as to all who find themselves in similar circumstances.

22

23

24

ORDER GRANTING CERTIFICATION OF THE CLASSES - 8

Case 2:18-cv-00928-MJP Document 102 Filed 03/06/19 Page 9 of 13

1

2. The Timing and Effect of Criminal Proceedings

2

Defendants argue that the named Plaintiffs are atypical, having been subject to—in

3 addition to the normal immigration procedures—criminal prosecution (based upon their entry

4 into the country at some place other than a POE). Tellingly, Defendants fail to provide any

5 explanation as to how a criminal prosecution might impact the timing of the credible fear

6 interview and bond hearing or change the due process analysis. In the case of at least Ms.

7 Orantes, her credible fear interview occurred weeks after her criminal proceedings were

8 concluded. Nor do the immigration regulations regarding the right to a credible fear interview

9 and bond hearing contain any provision about criminal prosecution impacting the timing of those

10 procedures. See 8 C.F.R. § 208.31(b). The allegedly unconstitutional delays of which the

11 named Plaintiffs complain remain the same for them as the other class members.

12

In response, Plaintiffs explain:

13

[J]ust as Plaintiffs do not seek to impose deadlines where delays are at the request

of the applicant, they do not seek to require CFIs prior to a district court’s

14

disposition of a pending criminal charge.

15 (Dkt. No. 72 at 9.) Based upon this representation, the Court will revise the Credible Fear
16 Interview Class’s proposed class definition, such that the requested ten-day deadline will be run
17 from the disposition of any pending criminal proceedings. In other words, the Credible Fear
18 Interview Class will include “all detained asylum seekers . . . who are not provided a credible
19 fear determination within ten days of the later of (1) requesting asylum or expressing a fear of
20 persecution to a DHS official or (2) the conclusion of any criminal proceeding related to the
21 circumstances of their entry, absent a request by the asylum seeker for a delayed credible fear
22 interview.”
23

24

ORDER GRANTING CERTIFICATION OF THE CLASSES - 9

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1

3. The Geographical Location, Circumstances of Entry, and Challenges to

Bond Determinations

2 Defendants’ arguments that the named Plaintiffs are located in different geographical

3 regions, entered the country under different circumstances, and faced different outcomes at their

4 bond hearings, fare no better.

5 First, Defendants follow the same “indefinite detention” policy across the country,

6 regardless of their location or the circumstances of their entry. Further, these factors do not seem

7 to affect the uniformity of treatment received by the putative class members: Plaintiffs have

8 submitted affidavits from immigration attorneys across the country describing similar delays and

9 procedural deficiencies in credible fear interviews and bond hearings. (Dkt. Nos. 39-44.)

10 Second, Defendants contend that Ms. Orantes and Mr. Vasquez are neither typical nor

11 adequate to represent the bond hearing class because neither appealed their bond determination.

12 The Court fails to see how this renders them atypical or inadequate, as they were still subject to

13 the same allegedly improper circumstances (i.e., delayed bond hearings, alleged procedural

14 deficiencies) as the class they seek to represent. Additionally, where a defendant’s policies are

15 immutable, a futile effort at administrative exhaustion is not required. American-Arab

16 Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1058 (9th Cir. 1995). In any event,

17 according to the complaint, Ms. Orantes and Mr. Vazquez did intend to appeal their bond denials

18 and only abandoned these efforts when they were released.

19 4. The Named Plaintiffs’ Participation in Litigation

20 Lastly, Defendants argue that there is a lack of evidence of the named Plaintiffs’

21 “interest, willingness, and understanding of the need to participate” in their litigation, based upon

22 the absence of declarations affirming so much. As far as the Court is aware, there is no

23 requirement that a named plaintiff submit a declaration specifically affirming their interest,

24

ORDER GRANTING CERTIFICATION OF THE CLASSES - 10

Case 2:18-cv-00928-MJP Document 102 Filed 03/06/19 Page 11 of 13

1 willingness, and understanding of the need to participate. Further, Ms. Orantes submitted a

2 declaration in connection with the pending request for a preliminary injunction. (See Dkt. No.

3 57.) The physiological, psychological, and emotional hardships she relates in those declarations

4 leave little doubt as to her interest in the case and willingness to pursue it. Defendants’ request

5 for additional time to depose the named Plaintiffs on these topics is rejected as both unnecessary

6 and unduly time-consuming.

7

The Court finds that the requirements for typicality and adequacy have been satisfied.

8

D. Classwide Relief is Appropriate

9

For the reasons discussed in Section II.B, supra, concerning the commonality

10 requirement, the Court finds that Defendants’ conduct is applicable to all class members, such

11 that declaratory relief, if granted, will be appropriate for everyone in both the Credible Fear

12 Interview and the Bond Hearing Classes.

13

E. Nationwide Certification is Appropriate

14

Defendants ask that, should the Court certify the requested classes, it not do so on a

15 nationwide basis. Their grounds for this request are (1) “intercircuit comity,” (2) the foreclosure

16 of similar litigation in other districts with the accompanying opportunity to address “unique local

17 issues”, and (3) the risk that nationwide certification would foreclose class members—who will

18 not be able to opt out—from seeking “speedier individual relief.”

19

The Court is not persuaded. As Plaintiffs point out, the proposed class representatives

20 were transferred all over the country before landing in the Western District of Washington. That

21 Defendants routinely transfer detained immigrants throughout the country prior to adjudicating

22 their cases is a fact capable of judicial notice, and the Court fails to see the logic of confining the

23 outcome of this matter to a single district.

24

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Case 2:18-cv-00928-MJP Document 102 Filed 03/06/19 Page 12 of 13

1

Further, the Court’s analysis of the “commonality” and “typicality” factors addresses the

2 validity of “unique local issues”—Plaintiffs are seeking a uniform nationwide resolution because

3 there is no provision in the applicable regulations (or the Constitution) that permits Defendants to

4 deny due process based upon “local issues,” however “unique” they may be. In any event,

5 Defendants cite no other similar litigation elsewhere in the country, and the Court is aware of

6 none.

7

Finally, the Court finds Defendants’ concern that class members be afforded the

8 opportunity to seek “speedier individual recovery” to border on the cynical. It is again a fact

9 eligible for judicial notice that the overwhelming majority of these class members are not

10 sufficiently resourced to pursue litigation on their own.

11

The Supreme Court has recognized that nationwide certification is committed to the

12 discretion of the district court and is appropriate in some circumstances. Califano v. Yamasaki,

13 442 U.S. 682, 702-03 (1979). The Court finds that this is manifestly one of those circumstances,

14 and rejects Defendants’ request to limit the scope of the class certification.

15

Conclusion

16

Plaintiffs have established numerosity, commonality, typicality and adequacy, and have

17 further demonstrated that “declaratory relief is available to the class as a whole” and that the

18 challenged conduct is “such that it can be enjoined or declared unlawful only as to all of the class

19 members or as to none of them.” Wal-Mart, 564 U.S. at 360. The Court therefore certifies a

20 Credible Fear Interview Class and a Bond Hearing Class as defined supra; designates named

21 Plaintiffs Padilla, Guzman, Orantes and Vasquez as Credible Fear Interview Class

22 representatives and Plaintiffs Orantes and Vasquez as Bond Hearing Class representatives; and

23 appoints Plaintiffs’ counsel as class counsel.

24

ORDER GRANTING CERTIFICATION OF THE CLASSES - 12

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1

The clerk is ordered to provide copies of this order to all counsel.

2

Dated March 6, 2019.

3

A

4

Marsha J. Pechman

5

United States Senior District Judge

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

ORDER GRANTING CERTIFICATION OF THE CLASSES - 13

 
 Case 2:18-cv-00928-MJP Document 110 Filed 04/05/19 Page 1 of 19

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10

YOLANY PADILLA, et al.,

CASE NO. C18-928 MJP

11

Plaintiffs,

ORDER GRANTING

PRELIMINARY INJUNCTION

12

v.

13

US IMMIGRATION AND CUSTOMS

ENFORCEMENT, et al.,

14

Defendants.

15

16 The above-entitled Court, having received and reviewed:
17 1. Plaintiffs’ Motion for Preliminary Injunction (Dkt. No. 45),
18 2. Defendants’ Opposition to Plaintiffs’ Motion for Preliminary Injunction (Dkt. No.
19 82),
20 3. Plaintiffs’ Reply in Support of Motion for Preliminary Injunction (Dkt. No. 85),
21 all attached declarations and exhibits, and relevant portions of the record, and having heard oral
22 argument thereon, rules as follows:
23

24

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1

IT IS ORDERED that the motion is GRANTED. With regard to the Bond Hearing Class,

2 Defendant Executive Office for Immigration Review must, within 30 days of this Order:

3

1. Conduct bond hearings within seven days of a bond hearing request by a class

4

member, and release any class member whose detention time exceeds that limit;

5

2. Place the burden of proof on Defendant Department of Homeland Security in those

6

bond hearings to demonstrate why the class member should not be released on bond,

7

parole, or other conditions;

8

3. Record the bond hearing and produce the recording or verbatim transcript of the

9

hearing upon appeal; and

10

4. Produce a written decision with particularized determinations of individualized

11

findings at the conclusion of the bond hearing.

12

Background

13

Under the Immigration and Nationality Act (“INA”), detained asylum seekers who are

14 determined by Defendant U.S. Immigration and Customs Enforcement (“ICE”) to have a

15 credible fear of persecution are entitled to request release from custody during the pendency of

16 the asylum process. See Matter of X-K, 23 I. & N. Dec. 731 (BIA 2005). The initial decision of

17 whether the detainees may be released is made by Defendant Department of Homeland Security

18 (“DHS”) (see 8 C.F.R. § 236.1(c)(8)), and the asylum seekers may request review of the DHS

19 determination before an immigration judge (“IJ”) by means of a bond hearing. See 8 U.S.C.

20 § 1226(a); 8 C.F.R. § 1003.19(a).

21

The agencies’ own guidelines and regulations reflect a recognition of the significance of

22 the deprivation of liberty and the need for expeditious processing of these requests. See, e.g., 8

23 C.F.R. § 1003.47(k) (referring to “the expedited nature” of initial custody redetermination cases);

24

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1 52 Fed. Reg. 2931, 2932 (Aliens and Nationality; Rules of Procedure Before Immigration

2 Judges: Jan. 29, 1987) (emphasizing the need for procedures at that time to “maximize the

3 prompt availability of Immigration Judges for respondents applying for bond determinations”);

4 Immigration Court Practice Manual § 9.3(d)(2016) (“In general, after receiving a request for a

5 bond hearing, the Immigration Court schedules the hearing for the earliest possible date . . .”).

6 The DHS regulations allow for bond hearings even prior to the agency filing immigration

7 charges. 8 C.F.R. § 1003.14(a). The critical nature of the interest at stake is reflected in an

8 underlying theme calling for hearings of this nature to be held as expeditiously as possible.

9

Despite this mandate, Plaintiffs have submitted a plethora of declarations reflecting a

10 practice by Defendant Executive Office for Immigration Review (“EOIR”) of delaying bond

11 hearings for members of this class for weeks, even months, following a hearing request. (See

12 Dkt. No. 37 at 14, Motion for Class Certification; Dkt. No. 46, Decl. of Antonini at ¶ 5; Dkt. No.

13 47, Decl. of Beckett at ¶ 5; Dkt. No. 48, Decl. of Byers at ¶ 5; Dkt. No. 50, Decl. of Inlender at

14 ¶¶ 12-13; Dkt. No. 51, Decl. of Jong at ¶¶ 3-4; Dkt. No. 52, Decl. of Koh at ¶ 14; Dkt. 53, Decl.

15 of Levy at ¶ 6; Dkt. No. 54, Decl. of Love at ¶¶ 4-5; Dkt. No. 55, Decl. of Lunn at ¶ 5; Dkt. No.

16 56, Decl. of Mercado at ¶ 10; Dkt. No. 57, Decl. of Orantes at ¶ 13; Dkt. No. 58, Decl. of

17 Shulruff at ¶ 4; Dkt. No. 60, Decl. of Yang at ¶¶ 5-6.

18

Members of the Bond Hearing class face other obstacles to securing their freedom. At

19 the bond hearing, the IJ bases his or her decision on an evaluation of whether the asylum seeker

20 poses a danger to the community and is likely to appear at future proceedings. 8 C.F.R.

21 §§ 1236.1(d)(1), 1003.19; Matter of Adeniji, 22 I. & N. 1102, 1112 (BIA 1999). Unique among

22 civil detention hearings, however, EOIR places the burden of establishing these factors on the

23 detainees instead of the government. Matter of Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006).

24

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1

An asylum seeker denied bond can appeal the IJ’s decision to the Board of Immigration

2 Appeals (“BIA”) or seek another bond hearing in front of the IJ based on a material change in

3 circumstances. 8 C.F.R. §§ 1003.19(e), (f). But the potential appellant must make the decision

4 of whether to appeal without the aid of a record of the initial bond proceeding or a written

5 decision detailing the reasons for the ruling. There is no requirement that immigration courts

6 record their proceedings or provide a transcript thereof, and the IJs do not release a written

7 decision unless an administrative appeal of the bond decision has already been filed. See, e.g.,

8 Immigration Court Practice Manual §§ 9.3(e)(iii), e(vii); BIA Practice Manual §§ 4.2(f)(ii),

9 7.3(b)(ii).

10

In addition to the deprivation of liberty, detainees face a number of other hardships

11 attendant upon their incarceration: separation from their families, substandard conditions, subpar

12 medical and/or mental health care, and decreased access to legal assistance and the other

13 resources required to pursue their goal of asylum (leading to a decreased likelihood of success).

14 See, e.g., Ingrid Eagly & Stephen Shafter, Am. Imm. Council, Access to Counsel in Immigration

15 Court (2016), https://tinyurl.com/y7hbl2rm; Dkt., Decl. of Lunn at ¶ 7; Dkt. No. 49, Decl. of

16 Cooper at ¶¶ 3-14, 17-20. The stakes are high, and the obstacles to success can loom even

17 higher.

18

Discussion

19

The elements to be established prior to the issuance of injunctive relief are well-known:

20

1. Likelihood of success on the merits

21

2. Irreparable harm in the absence of the injunction

22

3. A balance of equities which favors the moving party

23

4. The existence of a public interest which favors the injunction

24

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1 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

2

Here in the Ninth Circuit a “sliding scale” approach to this analysis is utilized – if the

3 balance of hardships tips sharply in favor of the moving party, that party is only required to

4 demonstrate claims that raise serious legal questions, as well as meet the other two criteria. See,

5 e.g., Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-35 (9th Cir. 2011).

6

1. Likelihood of success on the merits

7

Prior to addressing the substantive merits of the claims of the Bond Hearing Class, the

8 Court turns briefly to the Defendants’ argument that these Plaintiffs have no standing to bring

9 this motion because they have no cognizable injury; i.e., they are no longer being detained and

10 have been given bond hearings. The Court has previously addressed the recognized right of

11 these class representatives to prosecute “inherently transitory” claims (claims which by their

12 nature may expire for any one individual during the course of the litigation) for those remaining

13 members of the class who are still being injured by the policy or practice. See Sosna v. Iowa,

14 419 U.S. 393, 402 (1975); (Dkt. No. 102, Order Certifying Class at 8.)

15

Further, there is ample precedent for the granting of injunctive relief on behalf of a class

16 at the behest of class representatives who were not suffering the complained-of injury at the time

17 of the request. See Hernandez v. Sessions, 872 F.3d 976, 986 (9th Cir. 2017) (injunction granted

18 concerning certain bond determination practices although Plaintiffs were no longer in custody);

19 Ms. L. v. ICE, 310 F.Supp.3d 1133, 1146-47 (S.D.Cal. 2018) (enjoining immigrant family

20 separation even though Plaintiffs were already reunited with their children); R.I.L-R v. Johnson,

21 80 F.Supp.3d 164, 191 (D.D.C. 2015) (enjoining a detention policy at the request of Plaintiffs

22 who had been previously released).

23

24

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1

Turning to the likelihood of success on the merits, the parties are in agreement that these

2 issues should be analyzed using the balancing test enunciated in Mathews v. Eldridge, 424 U.S.

3 319, 335 (1976), which calls for the court to weigh:

4

First, the private interest that will be affected by the official action;

second, the risk of an erroneous deprivation of such interest through the

5

procedures used, and the probable value, if any, of additional or substitute

6

procedural safeguards; and finally, the Government’s interest, including

the function involved and the fiscal and administrative burdens that the

7

additional or substitute procedural requirement would entail.

8

A. Private interest

9

It has long been recognized that immigration detainees have a constitutionally-protected

10 interest in their freedom. Zadvydas v. Davis, 533 U.S. 678, 690 (2001). The Ninth Circuit has

11 recognized that, in the area of non-criminal detention of immigrants, “the private interest at issue

12 here is ‘fundamental’: freedom from imprisonment is at the ‘core of the liberty protected by the

13 Due Process Clause.’” Hernandez v. Sessions, 872 F.3d 976, 993 (9th Cir. 2017) (quoting

14 Foucha v. Lousiana, 504 U.S. 71, 80 (1992)). The Ninth Circuit described the fundamental

15 nature of that interest as “beyond dispute.” Id.

16

The extent of those due process rights is among the many issues hotly-contested by these

17 parties. Defendants ask the Court to find that these Plaintiffs are no different from any other

18 immigrants who present themselves at an official Point of Entry (POE) and request admission to

19 this country, a class of “excludable aliens” which has been found to have no inherent due process

20 rights. See Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953).

21

Again, the Court cites its earlier Order on Motion to Dismiss for a previous ruling that,

22 because these Plaintiffs (and the class they represent) were already within the territorial borders

23 of the U.S. when they were detained, they are not considered on a similar footing to “excludable”

24

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1 aliens. (See Dkt. No. 91, Order on Motion to Dismiss at 8-10.) “[O]nce an individual has

2 entered the country, he is entitled to the protection of the Due Process Clause.” United States v.

3 Raya-Vaca, 771 F.3d 1995, 1202 (9th Cir. 2014) (emphasis in original)1; see also Zadvydas, 553

4 U.S. at 693. The Court finds that this class of plaintiffs has a considerable private interest at

5 stake: A constitutional right to press their due process claims, including their right to be free

6 from indeterminate civil detention, and their right to have the bond hearings conducted in

7 conformity with due process.

8

Defendants also argue that Jennings v. Rodriguez, 138 S.Ct. 830 (2018) (the Supreme

9 Court case cited by this Court in initially finding jurisdiction over this lawsuit; (Dkt. No. 91,

10 Order on Motion to Dismiss at 6-7)) “concluded that the statute bars such aliens from being

11 afforded a bond hearing during the pendency of their removal proceedings.” (Dkt. No. 82,

12 Response at 10 (citing 138 S.Ct. at 845.)) This is an oversimplified and inaccurate reading of

13 that portion of the ruling, which concerns 8 U.S.C. § 1225(b)(1), and quotes its language that

14 “[a]ny alien . . . shall be detained pending a final determination of credible fear of persecution

15 and, if found not to have such a fear, until removed.” Jennings, 138 S.Ct. at 845 (emphasis

16 supplied). The members of the Bond Hearing Class have been found “to have such a fear” and

17 that finding removes them from the detention requirements referenced in Jennings.

18

The Court further finds that the fundamental liberty interest implicated by the Bond

19 Hearing Class’s prolonged and indeterminate detention extends to the procedural remedies which

20 they are seeking as well: Being forced to bear the burden of proof and being denied both some

21 form of automatic verbatim record and timely written findings—impacting both the likelihood of

22
1 Defendants’ argument that Raya-Vaca is “strictly limited” to criminal defendants is not supported by the opinion.
23 The “criminal case limitation” is applicable only to attacks on removal orders which are not at issue here. There is
no restriction on the Ninth Circuit’s holding regarding the due process rights of aliens apprehended within the
24 borders of the U.S.

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1 release and the ability to effectively appeal adverse determinations—can all be seen as potential

2 threats to the class members’ liberty.

3

Defendants reiterate the “harmless error” argument from their earlier dismissal motion,

4 asserting that Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008) sets a standard requiring

5 that the Plaintiffs demonstrate that the “alleged due process violations adversely affected the IJ’s

6 determination that [Plaintiff] was eligible for bond.” Id. at 1066. Defendants argue that the class

7 representatives fail under the harmless error standard because none of them are in custody and,

8 further, that the putative class members’ proof fails because they have not yet had their hearings.

9 The Court is not persuaded, and is mindful that, in the case of both of the named representatives

10 of the Bond Hearing Class, it was proactive intervention by the government that eliminated the

11 need for an appeal of an adverse determination at the bond hearing. (See Dkt. No. 26, Second

12 Amended Complaint, ¶¶ 121, 123; Dkt. No. 61, ¶ 10.) In Pitts v. Terrible Herbst, Inc., 653 F.3d

13 1081 (9th Cir. 2011), Defendant attempted to “moot” Plaintiff’s claim during the pendency of the

14 lawsuit by making him an offer of judgment. The Ninth Circuit ruled that such a strategy could

15 not defeat an otherwise valid class action: “[T]he termination of a class representative’s claim

16 does not moot the class claims.” Id. at 1089.

17

Regarding the putative class members, there is Ninth Circuit authority that there are

18 circumstances where, if the injury is imminent, prior or present harm need not be shown. In

19 Amer. Trucking Assoc’s v. City of Los Angeles, 559 F.3d 1046 (9th Cir. 2009), the court noted

20 that enforcing a requirement of proven past harm would put the plaintiffs to a “Hobson’s choice”

21 – refuse to abide by the challenged regulation and lose the right to do business, or submit to the

22 regulation and be driven out of business by the cost of compliance. Under those circumstances,

23 the Ninth Circuit found that “the constitutional violation alone, coupled with the damages

24

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1 incurred, can suffice to show irreparable harm.” Id. at 1058. See also Hernandez, 872 F.3d at

2 994 (“It is well-established that the deprivation of constitutional rights ‘unquestionably

3 constitutes irreparable injury.’”) (citations omitted).

4

Plaintiffs here are faced with a similar choice – accept their indeterminate detention and

5 receive bond hearings at the Government’s pleasure with a reversed and inequitable burden of

6 proof and procedural deficiencies which impact their ability to appeal an adverse determination

7 or (as the Defendants have suggested) give up their asylum claim and allow themselves to be

8 deported back to a homeland where they have already been found to have a credible fear of

9 injury or death. The Constitution does not require these Plaintiffs to endure such a no-win

10 scenario.

11

Defendants also claim that Plaintiffs are not entitled to relief because they have not

12 exhausted their administrative rights. The exhaustion requirement is “prudential, rather than

13 jurisdictional,” and it is within the discretion of a district court to

14

waive the prudential exhaustion requirement if “administrative remedies

are inadequate or not efficacious, pursuit of administrative remedies would

15

be a futile gesture, irreparable injury will result, or the administrative

16

proceedings would be void.”

17

Hernandez, 872 F.3d at 987 (citation omitted). As has already been observed, “[i]t is

18 well-established that the deprivation of constitutional rights ‘unquestionably constitutes

19 irreparable injury.’” Hernandez, 872 F.3d at 994 (citations omitted). Furthermore, Plaintiffs’

20 evidence demonstrates that, Defendants having shown no inclination to modify any of their

21 policies, the administrative remedy is “inadequate.” Indeed, the thrust of that evidence

22 (regarding the lack of either an automatic verbatim record or mandatory written findings at the

23 time of ruling) is that the current practices negatively impact their ability to effectively appeal

24

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1 and it would be futile to continue to pursue the administrative remedy in the face of Defendants’

2 ongoing refusal to alter the procedural framework.

3

In attempting to argue that Plaintiffs have no constitutional right to a verbatim record or

4 automatic written findings, Defendants again turn to the argument that there is not even a

5 guaranteed right to verbatim record in criminal proceedings. This argument was addressed—and

6 rejected—in the Court’s Order on Motion to Dismiss:

7

The government goes on to claim that, because “[t]he Supreme Court has

declined to impose a contemporaneous verbatim record requirement on

8

criminal trials,” the Court should not do so in immigration custody

9

redetermination hearings. (Dkt. No. 36 at 18 (emphasis in original).) The

problem with this argument is that every case cited in support of this

10

proposition says the opposite: that indigent defendants must be provided

with “a record of sufficient completeness” (Coppedge v. United States,

11

369 U.S. 438, 446 (1962) for an appeal or “a complete transcript of the

proceedings at trial.” United States v. Carrillo, 902 F.2d 1405, 1409 (9th

12

Cir. 1990).

13 (Dkt. 91 at 15, n.3.)
14 Defendants also assert that, because there are “less intrusive ways for the Board to ensure
15 detainees have notice of the basis for their bond decisions,” Plaintiffs’ interests should not be
16 elevated over the adverse impact on the Government’s interest. (Dkt. No. 82, Response at 19.)
17 The example of a “less intrusive way” which Defendants cite is a case which remanded a bond
18 decision to the IJ for a more thorough bond decision. In re: Fernando Antonio Garro-Rojas,
19 2007 WL 1430371, at *1 (BIA Mar. 23, 2007). But it is the prolongation of Plaintiffs’ detention
20 that is at the heart of the interest which they seek to protect. Defendants do not have a right to a
21 “less intrusive” solution that continues to undermine the fundamental interest at stake here.
22 As an example of the nature of their interest in the issuance of written findings before
23 their appeal is filed, Plaintiffs cite to 8 C.F.R. § 1003.3(b) (which mandates dismissal of a Notice
24

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1 of Appeal which is insufficiently detailed), as well as Matter of Keyte, 20 I. & N. Dec. 158, 159

2 (BIA 1990), wherein a notice of appeal was summarily dismissed for “offer[ing] only a

3 generalized statement of [the] reason for the appeal.” Written findings issued after the notice of

4 appeal is filed are of little benefit to this class. Additionally, written findings, often composed

5 weeks after the hearing itself,2 may overlook key facts and findings, and may be subject to bias

6 in favor of the adverse ruling. See Bergerco, U.S.A. v. Shipping Corp. of India, Ltd., 896 F.2d

7 1210, 1214 (9th Cir. 1990) (“[O]nce the court has entered judgment, it may become subject to

8 the very natural weight of its conviction, tending to focus on that which supports its holding.”)

9

Regarding Plaintiffs’ interest in shifting the burden of proof at the bond hearings,

10 Defendants again wrongly cite Jennings for their argument that Plaintiffs must continue to bear

11 the burden of proof. (Response at 18.) The Supreme Court in Jennings declined to address the

12 constitutional arguments on their merits, instead remanding them to the appellate court for that

13 purpose. 138 S.Ct. at 851. In every other context (both civil and criminal detention), the

14 Government bears the burden of proof regarding suitability for release (with the corresponding

15 presumption in favor of release) – the Supreme Court has upheld that allocation of the burden

16 where it was found (see United States v. Salerno, 481 U.S. 739, 751 (1987); Kansas v. Hendricks

17 521 U.S. 346, 353 (1997)), and struck it down where it was not (see Foucha v. Lousiana, 504

18 U.S. 71, 81 (1992); Addington v. Texas, 441 U.S. 418, 427 (“The individual should not be asked

19 to share equally with society the risk of error when the possible injury to the individual is

20 significantly greater than any possible harm to the state.”); and Zadvydas, 533 U.S. at 692

21

22

23 24 2 See Dkt. No. 49, Decl. of Cooper at ¶ 16; Dkt. No. 51, Decl. of Jong at ¶ 10.

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1 (striking down a regulation which required immigrant detainees to prove they were not

2 dangerous)).3

3

The Court finds that Plaintiffs have succeeded in establishing the existence of the private

4 interests (shared by the class) that are being impacted by the government action.

5

B. Risk of deprivation/value of procedural safeguards

6

The risk of deprivation occasioned by the indeterminate prolonged civil detention of this

7 class seems almost too obvious to state. The Court’s Order on Motion to Dismiss quoted the

8 Ninth Circuit in Rodriguez v. Marin, 909 F.3d 252, 256 (9th Cir. 2018):

9

We have grave doubts that any statute that allows for arbitrary prolonged

detention without any process is constitutional or that those who founded our

10

democracy precisely to protect against the government’s arbitrary deprivation

of liberty would have thought so. Arbitrary civil detention is not a feature of

11

our American government.

12 The Hernandez court, conducting a similar Mathews analysis in the context of immigrant
13 detention, described the second factor as follows: “[T]here is a significant risk that the individual
14 will be needlessly deprived of the fundamental right to liberty.” 872 F.3d at 993. That
15 Defendants’ procedures here occasion the deprivation of such a fundamental right suffices as an
16 adequate description of “the risk of an erroneous deprivation of such interest through the
17 procedures used,” including the absence of any deadline for conducting the bond hearing once
18 requested and placing the burden on the detainee to establish grounds for release. Additionally,
19 the failure to supply a verbatim record of the hearing or a contemporaneous set of written
20

21

22
3 Further support can be found in an S.D.N.Y. case, Martinez v. Decker, 2018 U.S. Dist. LEXIS 178577 at *13
23 (S.D.N.Y., October 17, 2018): “Thus, in accordance with every court to have decided this issue, the Court concludes
that due process requires the Government to bear the burden of proving that detention is justified at a bond hearing
24 under Section 1226(a).”

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1 findings jeopardizes the class members’ ability to effectively appeal an adverse decision – a

2 further incursion upon their constitutionally-protected liberty interest.

3

Having identified the risk, the Court moves on to examine “the probable value, if any, of

4 additional or substitute procedural safeguards.” Mathews, 424 U.S. at 335. In establishing by

5 this injunction the requirement that Defendant EOIR hold a bond hearing for class members

6 within seven days of their request, the Court is informed, first, by its previous findings of “a

7 plethora of district court and Board of Immigration Appeals cases affirm[ing] the requirement of

8 a ‘prompt’ or ‘expeditious’ bond hearing for immigrants seeking entry.” (See Dkt. No. 91, Order

9 on Motion to Dismiss at 13-14.) Further guidance is found in the Congressional mandate that, in

10 the statutory scheme by which asylum determinations are made, Defendants are required to

11 review credible fear determinations “as expeditiously as possible,” a phrase which is defined as

12 requiring review “to the maximum extent practicable within 24 hours, but in no case later than 7

13 days.” 8 U.S.C. § 1225(b)(1)(B)(III)(iii); see also 8 C.F.R. §§ 287.3(d), 1003.42(e).

14

Elsewhere in the civil commitment context, there is a long history of courts which have

15 found that due process requires an expeditious hearing, often defined as a period of no longer

16 than seven days. See, e.g., Doe v. Gallinot, 657 F.2d 1017 (9th Cir. 1982)(affirming a ruling

17 which required a probable cause hearing for an involuntary mental health commitment after 72

18 hours, “but in no event . . . later than the seventh day of confinement;” Id. at 10254); Saravia v.

19 Sessions, 280 F.Supp.3d 1168 (N.D.Cal. 2017) (finding, using a Mathews balancing test, that the

20 due process clause required, for minors re-arrested by DHS, “the opportunity to be heard ‘at a

21

22
4 The Ninth Circuit further found in Gallinot that “the seven-day limit represents a responsible balance of the
23 competing interests involved.” Id. at 1025.

24

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1 meaningful time,’” and fixed that period at no later than seven days following the re-arrest; Id. at

2 1197); Nguti v. Sessions, 259 F.Supp.3d 6 (W.D.N.Y. 2017) (requiring an immigrant detainee’s

3 bond hearing to be held within one week of the order; Id. at 14). The Court finds that a timeline

4 of seven days from the date of the bond hearing request is consistent with both Congressional

5 intent and judicial precedent and represents a procedural safeguard providing the value of an

6 opportunity to be heard at a meaningful time regarding this fundamental interest possessed by the

7 class members.

8

The probable value of the other safeguards (the burden of proof borne by the government,

9 an automatic contemporaneous recording of the proceedings, and written findings at the time of

10 decision) required by this injunction has been mentioned supra and may be summarized as: (1)

11 the burden of proof being borne by the party which has traditionally been responsible for it and

12 which has the greater resources to elicit the necessary facts; and (2) the provision to these class

13 members of a meaningful opportunity to decide whether to appeal an adverse determination and

14 to prepare a sufficiently detailed notice of appeal that the process may go forward with a

15 complete representation of their position. Generally speaking, the “probable value, if any, of

16 additional or substitute procedural safeguards” is the increased likelihood that Plaintiffs will be

17 deprived of their fundamental liberty interest only where absolutely necessary, and for no longer

18 than necessary.

19

C. The Government’s interest

20

“The government has legitimate interests in protecting the public and in ensuring that

21 non-citizens in removal proceedings appear for hearings . . . .” Hernandez, supra at 990. The

22 Defendants present their interests primarily in terms of the burden on their resources that

23 implementing additional procedural safeguards (and a mandated timeline) will impose; i.e.,

24

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1 “available resources and docketing realities.” (Response at 12.) While those concerns are

2 certainly within the scope of a Mathews balancing test (this third factor is described as “the

3 Government’s interest, including the function involved and the fiscal and administrative burdens

4 that the additional or substitute procedural requirement would entail”), the Court will not exalt

5 expense over fundamental rights to liberty. As the Ninth Circuit has stated,

6

[T]he government has no legitimate interest in detaining individuals who

have been determined not to be a danger to the community and whose

7

appearance at future immigration proceedings can be reasonably

8

ensured . . . .

9 Hernandez, supra at 994.

10

The Court finds that the Mathews balancing test favors the Plaintiffs’ position in terms of

11 a finding of “likelihood of success on the merits” – Plaintiffs have established the existence of a

12 fundamental liberty interest, the risk of erroneous deprivation of that interest, and the value of

13 additional procedural safeguards. The Government interest, while hardly nonexistent, is not

14 sufficient to outweigh the other factors.

15

2. Irreparable harm

16

The Court finds that Plaintiffs have provided solid evidentiary and jurisprudential proof

17 of the multiple layers of irreparable injury occasioned by Defendants’ policies and practices.

18 The Court’s analysis begins by noting again that the courts of the United States recognize that

19 “any deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’”

20 Hernandez, supra at 995 (citation omitted).

21

Next, the analysis turns to the more concrete types of harm inflicted by prolonged

22 detention, including physical and psychological trauma (e.g., malnutrition, poor medical care,

23 depression; see declarations of Plaintiffs and counsel at Dkt. Nos. 46, 48, 51, 54-58). Plaintiffs

24 attach to their opening brief a series of declarations establishing the spectrum of harms attendant

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1 upon prolonged detention (including panic attacks, depression, and exacerbation of pre-existing

2 trauma). (see Opening Brief at 23.) Additionally, the Ninth Circuit has cited with approval an

3 amicus brief from the American Bar Association in Hernandez which

4

describes evidence of subpar medical and psychiatric care in ICE

detention facilities, the economic burdens imposed on detainees and their

5

families as a result of detention, and the collateral harms to children of

6

detainees whose parents are detained.

7 872 F.3d at 994.

8

Secondarily, prolonged indefinite detention negatively impacts detainees who are

9 required to bear the burden of proof of their eligibility for release. Detention poses “serious

10 obstacles in demonstrating eligibility for release at a bond hearing, including impediments to

11 gathering evidence, communicating with potential witnesses or attorneys . . . or accessing

12 documents that immigration officials have confiscated.” (Opening Brief at 24; see declarations of

13 immigration counsel at Dkt. Nos. 46-52, 54, 59.)

14

Furthermore, there is the impact of the procedural deficiencies alleged by Plaintiffs on

15 their ability to effectively appeal any adverse determinations. If the detainee does not know the

16 grounds on which the bond request was denied, how is the detainee—or the detainee’s counsel—

17 supposed to know whether an appeal would be well-taken? As one counsel declared: “It is near

18 impossible to advise a client on his or her chances of appeal if I have little to no idea of what the

19 [IJ]’s reasoning was for denying bond in the first place.” (Dkt. No. 51, Decl. of Jong at ¶ 11; see

20 also Dkt. No. 50, Decl. of Inlender at ¶ 15 (“Once an appeal is filed, the lack of a transcript

21 means that there is no verifiable way to relay what happened before the immigration judge and,

22 in some cases, to articulate specific errors requiring reversal.”).)

23

Finally, there is the incalculable harm to those class members who, facing an uncertain

24 length of time in custody and an arduous and obstacle-strewn road to establishing their right to

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1 release (to say nothing of their right to asylum), simply abandon their claim and accept

2 deportation back to countries where, as it has already been established to the Government’s

3 satisfaction, they face persecution, torture, and possibly death. (See Dkt. Nos. 46-47, 50-53, 55,

4 57-60.)

5

Defendants’ arguments to the contrary are not persuasive. They claim that there are no

6 allegations of prolonged detention awaiting a bond hearing, but Plaintiffs’ declaratory evidence

7 is replete with assertions of waiting times of weeks and months prior to a bond hearing. (E.g.,

8 Dkt. Nos. 46, 47, 57, 61.) They argue that claims of prolonged detention “could be addressed in

9 the ordinary course of habeas litigation when they are ripe” (Response at 24) – apparently

10 entirely missing the grim irony of Plaintiffs being forced to undergo a further delay in detention

11 for an entirely separate legal proceeding. Even in the face of over a dozen declarations

12 documenting excessive delays and its effects on the class members, Defendants insist that the

13 injuries are “speculative,” lacking any proof that they are “likely.”

14

Plaintiffs have succeeded in establishing irreparable harm from the complained-of

15 practices.

16

3. Balance of equities/Public interest

17

When the Government is a party to the case, the public interest and balance of equities

18 factors “merge.” Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). The

19 equities on Plaintiffs’ side consist of the deprivation of a fundamental constitutional right, with

20 accompanying harms that range from physical, emotional and psychological damage to

21 unnecessarily prolonged separation from their families to denial of due process. The equities on

22 Defendants’ side are primarily concerned with the agencies’ right to control their dockets and to

23

24

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1 allocate what are unquestionably limited resources as they see fit. This is not a close call. As the

2 Hernandez court stated:

3

“Faced with such a conflict between financial concerns and preventable

human suffering, we have little difficulty concluding that the balance of

4

hardships tips decidedly in plaintiffs’ favor.”

5 872 F.3d at 996 (quoting Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983).

6 In considering the public interest factor in the injunctive equation, the Hernandez court

7 found the following “public interest” factors favored plaintiffs; the Court finds them applicable

8 here:

9 1. “[E]nsuring the government’s bond determination procedures comply with the

10

Constitution.”

2. “In addition to potential hardships facing Plaintiffs, the court ‘may consider . . . the

11

indirect hardship to their friends and family members.’” (quoting Golden Gate Rest.

Ass’n v. City & County of San Francisco, 512 F.3d 1112, 1126 (9th Cir. 2008)).

12

3. “[T]he general public’s interest in the efficient allocation of the government’s fiscal

13

resources” (citing the $158 a day cost to confine each detainee, with a total daily cost

of $6.5 million [in 2017], compared to a maximum cost of $17 a day for supervised

14

release).

15 Id.

16

Additionally, there is Ninth Circuit precedent for the principle that “it is always in the

17 public interest to prevent the violation of a party’s constitutional rights.” Melendres v. Arpaio,

18 695 F.3d 990, 102 (9th Cir. 2012). It is the finding of this Court that both the balance of equities

19 and the public interest favor the granting of the injunction requested by Plaintiffs.

20

Conclusion

21

The Plaintiffs of the Bond Hearing Class have succeeded in establishing all the requisite

22 elements for a granting of their request for injunctive relief: a likelihood of success on the merits,

23 irreparable harm if their relief is not granted, a balance of equities in their favor, and that the

24

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1 public interest will be benefited by the relief they seek. Accordingly, the Court GRANTS the

2 requested relief and orders that Defendant EOIR institute the following procedural safeguards

3 within 30 days of this Order:

4

1. Conduct bond hearings within seven days of a bond hearing request by a class

5

member, and release any class member whose detention time exceeds that limit;

6

2. Place the burden of proof on Defendant Department of Homeland Security in those

7

bond hearings to demonstrate why the class member should not be released on bond,

8

parole, or other conditions;

9

3. Record the bond hearing and produce the recording or verbatim transcript of the

10

hearing upon appeal; and

11

4. Produce a written decision with particularized determinations of individualized

12

findings at the conclusion of the bond hearing.

13

14

The clerk is ordered to provide copies of this order to all counsel.

15

Dated April 5, 2019.

16

A

17

Marsha J. Pechman

18

United States District Judge

19

20

21

22

23

24

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1

The Honorable Marsha J. Pechman

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9 YOLANY PADILLA; IBIS GUZMAN; BLANCA

10 ORANTES; BALTAZAR VASQUEZ;

No. 2:18-cv-928 MJP

11

Plaintiffs-Petitioners,

v. 12

THIRD AMENDED COMPLAINT:

13

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (“ICE”); U.S. DEPARTMENT OF HOMELAND

CLASS ACTION FOR INJUNCTIVE AND

14 SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); U.S. CITIZENSHIP AND

DECLARATORY RELIEF

15 IMMIGRATION SERVICES (“USCIS”); EXECUTIVE

OFFICE FOR IMMIGRATION REVIEW (“EOIR”); 16 MATTHEW ALBENCE, Acting Deputy Director of ICE;

17 KEVIN K. McALEENAN, Acting Secretary of DHS; JOHN P. SANDERS, Acting Commissioner of CBP; L.
18 FRANCIS CISSNA, Director of USCIS; ELIZABETH GODFREY, Acting Director of Seattle Field Office, ICE;
19 WILLIAM BARR, United States Attorney General;

LOWELL CLARK, warden of the Northwest Detention 20 Center in Tacoma, Washington; CHARLES INGRAM,

21 warden of the Federal Detention Center in SeaTac, Washington; DAVID SHINN, warden of the Federal

22 Correctional Institute in Victorville, California; JAMES
JANECKA, warden of the Adelanto Detention Facility; 23

Defendants-Respondents. 24

25

26

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1

I. INTRODUCTION

2

1. Plaintiffs filed this lawsuit on behalf of themselves and other detained individuals

3 seeking protection from persecution and torture, challenging the United States’ government’s

4 punitive policies and practices seeking to unlawfully deter and obstruct them from applying for

5 protection.

6

2. This lawsuit initially included challenges to the legality of the government’s zero-

7 tolerance practice of forcibly ripping children away from parents seeking asylum, withholding

8 and protection under the Convention Against Torture (“CAT”). Plaintiffs did not pursue those

9 claims after a federal court in the Southern District of California issued a nationwide preliminary

10 injunction Order against forcibly separating families. Ms. L v. ICE, 310 F. Supp. 3d 1133 (S.D.

11 Cal. 2018); see also Dkt. 26.

12

3. In their Second Amended Complaint, Plaintiffs reaffirmed that they sought relief

13 on behalf of themselves and members of two proposed classes: (1) the Credible Fear Interview

14 Class, challenging delayed credible fear determinations, and (2) the Bond Hearing Class,

15 challenging delayed bond hearings that do not comport with constitutional requirements. Id.

16

4. On March 6, 2019, this Court granted Plaintiffs’ Motion for Class Certification

17 and certified both the Credible Fear Interview Class and Bond Hearing Class. Dkt. 102 at 2. On

18 April 5, 2019, this Court granted Plaintiffs’ Motion for Preliminary Injunction, ordering that

19 Defendant Executive Office for Immigration Review conduct bond hearings within seven days of

20 request by a Bond Hearing Class members, place the burden of proof at those hearings on

21 Defendant Department of Homeland Security, record the hearings, produce a recording or

22 verbatim transcript upon appeal, and produce a written decision with particularized

23 determinations of individualized findings at the conclusion of each bond hearing. Dkt. 110 at 19.

24

5. Thereafter, on April 16, 2019, Defendant Attorney General Barr issued Matter of

25 M-S-, 27 I&N Dec. 509 (A.G. 2018). In this decision, Defendant Barr reversed and vacated

26 Matter of X-K-, 23 I&N Dec. 731 (BIA 2005), holding that the Immigration and Nationality Act

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1 (INA) does not permit bond hearings for individuals who enter the United States without

2 inspection, establish a credible fear for persecution or torture, and are then referred for removal

3 proceedings before an immigration judge.

4

6. Defendants have therefore now adopted a policy that not only denies Plaintiffs

5 and class members the procedural protections they seek, but prevents them from obtaining bond

6 hearings at all. Plaintiffs file this Third Amended Complaint to more squarely address this new

7 and even more extreme policy.

8

7. Defendants exacerbate the harm those fleeing persecution have already suffered

9 by needlessly depriving them of their liberty without adequate review. Plaintiffs seek this Court’s

10 intervention to ensure both that Defendants do not interfere with their right to apply for

11 protection by delaying Plaintiffs’ credible fear interviews and by subjecting them to lengthy

12 detention without prompt bond hearings that comport with the Due Process Clause.

13

II. JURISDICTION

14

8. This case arises under the Fifth Amendment of the United States Constitution and

15 the Administrative Procedure Act (“APA”). This Court has jurisdiction under 28 U.S.C. § 1331

16 (federal question jurisdiction); 28 U.S.C. § 2241 (habeas jurisdiction); and Article I, § 9, clause 2

17 of the United States Constitution (“Suspension Clause”). Defendants have waived sovereign

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

19

9. Plaintiffs Yolany Padilla, Ibis Guzman, and Blanca Orantes were in custody for

20 purposes of habeas jurisdiction when this action was filed on June 25, 2018. Moreover, Plaintiffs

21 remain in custody as they are in ongoing removal proceedings and subject to re-detention.

22

10. Plaintiffs Guzman, Orantes, and Vasquez were in custody for purposes of habeas

23 jurisdiction when the First Amended Complaint was electronically submitted on July 15, 2018.

24

III. VENUE

25

11. Venue lies in this District under 28 U.S.C. § 1391 because a substantial portion of

26 the relevant facts occurred within this District. Those facts include Defendants’ detention of

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1 Plaintiffs Padilla, Guzman, and Orantes in this District; Defendants’ failure in this District to

2 promptly conduct credible fear interviews and determinations for Plaintiffs and class members’

3 claims for protection in the United States; and Defendants’ failure in this District to promptly

4 conduct bond hearings that comport with due process and the Administrative Procedure Act.

5

IV. PARTIES

6

12. Plaintiff Yolany Padilla is citizen of Honduras seeking asylum, withholding, and

7 protection under CAT for herself and her 6-year-old son (J.A.) in the United States.

8

13. Plaintiff Ibis Guzman is a citizen of Honduras seeking asylum, withholding, and

9 protection under CAT for herself and her 5-year-old son (R.G.) in the United States.

10

14. Plaintiff Blanca Orantes is a citizen of El Salvador seeking asylum, withholding,

11 and protection under CAT for herself and her 8-year-old son (A.M.) in the United States.

12

15. Plaintiff Baltazar Vasquez is citizen of El Salvador seeking asylum, withholding,

13 and protection under CAT in the United States.

14

16. Defendant U.S. Department of Homeland Security (“DHS”) is the federal

15 government agency responsible for enforcing U.S. immigration law. Its component agencies

16 include U.S. Immigration and Customs Enforcement (“ICE”); U.S. Customs and Border

17 Protection (“CBP”); and U.S. Citizenship and Immigration Services (“USCIS”).

18

17. Defendant ICE carries out removal orders and oversees immigration detention.

19 ICE’s responsibilities include determining whether individuals seeking protection will be

20 released and referring cases for a credible fear interview and subsequent proceedings before the

21 immigration court. ICE’s local field office in Tukwila, Washington, is responsible for

22 determining whether individuals detained in Washington will be released, and when their cases

23 will be submitted for credible fear interviews and subsequent proceedings before the immigration

24 court.

25

18. Defendant CBP conducts the initial processing and detention of individuals

26 seeking protection at or near the U.S. border. CBP’s responsibilities include determining whether

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1 individuals seeking protection will be released and when their cases will be submitted for a

2 credible fear interview.

3

19. Defendant USCIS, through its asylum officers, interviews and screens individuals

4 seeking protection to determine whether to refer their protection claim to the immigration court

5 to adjudicate any application for asylum, withholding of removal, or protection under CAT.

6

20. Defendant Executive Office for Immigration Review (“EOIR”) is a federal

7 government agency within the Department of Justice that includes the immigration courts and

8 the Board of Immigration Appeals (“BIA”). It is responsible for conducting removal

9 proceedings, including adjudicating applications for asylum, withholding, and protection under

10 CAT, and for conducting individual bond hearings for persons in immigration custody.

11

21. Defendant Matthew Albence is sued in his official capacity as the Acting Deputy

12 Director of ICE , and is a legal custodian of class members.

13

22. Defendant Elizabeth Godfrey is sued in her official capacity as the ICE Seattle

14 Field Office Director, and is, or was, a legal custodian of the named plaintiffs.

15

23. Defendant Kevin K. McAleenan is sued in his official capacity as the Acting

16 Secretary of DHS. In this capacity, he directs DHS, ICE, CBP, and USCIS. As a result,

17 Defendant McAleenan is responsible for the administration of immigration laws pursuant to

18 8 U.S.C. § 1103 and is, or was, a legal custodian of the named plaintiffs.

19

24. Defendant John Sanders is sued in his official capacity as the Acting

20 Commissioner of CBP.

21

25. Defendant L. Francis Cissna is sued in his official capacity as the Director of

22 USCIS.

23

26. Defendant William Barr is sued in his official capacity as the United States

24 Attorney General. In this capacity, he directs agencies within the United States Department of

25 Justice, including EOIR. Defendant Barr is responsible for the administration of immigration

26 laws pursuant to 8 U.S.C. § 1103 and oversees Defendant EOIR.

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1

27. Defendant Steven Langford is sued in his official capacity as the warden of the

2 Northwest Detention Center in Tacoma, Washington.

3

28. Defendant Charles Ingram is sued in his official capacity as the warden of the

4 Federal Detention Center in SeaTac, Washington.

5

29. Defendant David Shinn is sued in his official capacity as the warden of the

6 Federal Correctional Institute in Victorville, California.

7

30. Defendant James Janecka is sued in his official capacity as the warden of the

8 Adelanto Detention Facility in Adelanto, California.

9

V. FACTS

10

Legal Background

11

31. In 1996, Congress created an expedited removal system and “credible fear”

12 process. 8 U.S.C. § 1225 et seq. As enacted by Congress, the expedited removal system involves

13 a streamlined removal process for individuals apprehended at or near the border. See 8 U.S.C. §

14 1225(b)(1)(A)(i) (permitting certain persons who are seeking admission at the border of the

15 United States to be expeditiously removed without a full hearing); 8 U.S.C. § 1225(b)(1)(A)(iii)

16 (authorizing the Attorney General to apply expedited removal to certain inadmissible noncitizens

17 located within the United States); 69 Fed. Reg. 48,877 (Aug. 11, 2004) (providing that the

18 Attorney General will apply expedited removal to persons within the United States who are

19 apprehended within 100 miles of the border and who are unable to demonstrate that they have

20 been continuously physically present in the United States for the preceding 14-day period).

21

32. Critically, however, Congress included safeguards in the statute to ensure that

22 those seeking protection from persecution or torture are not returned to their countries of origin.

23 Recognizing the high stakes involved in short-circuiting the formal removal process and the

24 constitutional constraints under which it operates, Congress created specific procedures with

25 detailed requirements for handling claims for protection.

26

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1

33. The expedited removal process begins with an inspection by an immigration

2 officer, who determines the individual’s admissibility to the United States. If the individual

3 indicates either an intention to apply for asylum or any fear of return to their country of origin,

4 the officer must refer the individual for an interview with an asylum officer. 8 U.S.C. §

5 1225(b)(1)(A)(ii), (B); 8 C.F.R. § 235.3(b)(4).

6

34. If an asylum officer determines that an applicant satisfies the credible fear

7 standard—meaning there is a “significant possibility” she is eligible for asylum, 8 U.S.C. §

8 1225(b)(1)(B)(v)—the applicant is taken out of the expedited removal system altogether and

9 placed into standard removal proceedings under 8 U.S.C. § 1229a.

10

35. During § 1229a removal proceedings, the applicant has the opportunity to develop

11 a full record before an immigration judge (“IJ”), apply for asylum, withholding of removal,

12 protection under CAT, and any other relief that may be available, and appeal an adverse decision

13 to the BIA and court of appeals. 8 C.F.R. §§ 208.30(f), 1003.43(f) and 1208.30; see also 8

14 U.S.C. § 1225(b)(1)(B)(ii).

15

36. Until the asylum officer makes the credible fear determination, an applicant in

16 expedited removal proceedings is subject to mandatory detention. 8 U.S.C. §

17 1225(b)(1)(B)(iii)(IV); 8 C.F.R. § 235.3(b)(4)(ii).

18

37. Defendants have a policy or practice of delaying the provision of credible fear

19 interviews to asylum seekers who express a fear of return, and thus unnecessarily prolonging

20 their mandatory detention.

21

38. Until recently, BIA case law recognized that noncitizens who were apprehended

22 after entering without inspection and placed in removal proceedings after passing their credible

23 fear interviews are entitled to bond hearings. Matter of X-K-, 23 I&N Dec. 731 (BIA 2005),

24 reversed and vacated by Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019) (issued April 16, 2019,

25 but effective date stayed until July 15, 2019), (interpreting bond regulations at 8 C.F.R. §§

26 1003.19(h)(2) and 1236.1).

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1

39. Defendants’ policy and practice, however, has been both to deny timely bond

2 hearings and to require the noncitizens, rather than the government, to bear the burden of proving

3 at these bond hearings that continued detention is not warranted. These bond hearings have also

4 lacked procedural safeguards such as a verbatim transcript or audio recording, and a

5 contemporaneous written decision explaining the IJ’s findings.

6

40. Traditionally, those asylum seekers in § 1229a removal proceedings who are not

7 deemed “arriving”—that is, those who were apprehended near the border after entering without

8 inspection, as opposed to asylum seekers who are detained at a port of entry—become entitled to

9 an individualized bond hearing before an IJ to assess their eligibility for release from

10 incarceration once they have been found to have a credible fear. See 8 U.S.C. §§

11 1225(b)(1)(A)(iii), 1225(b)(1)(B)(iii)(IV); 8 C.F.R. §§ 208.30(f), 1236.1(d).

12

41. In 2005, Defendant EOIR reaffirmed the availability of bond hearings for this

13 group of asylum seekers. Matter of X-K-, 23 I&N Dec. 731 (BIA 2005), reversed and vacated by

14 Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019). See also 8 C.F.R. § 1003.19(h)(2).

15

42. At the bond hearing, an IJ determines whether to release the individual on bond or

16 conditional parole pending resolution of her immigration case. See 8 U.S.C. § 1226(a); 8 C.F.R.

17 §§ 1236.1(d)(1), 1003.19. In doing so, the IJ evaluates whether they pose a danger to the

18 community and the likelihood that they will appear at future proceedings. See Matter of Adeniji,

19 22 I&N Dec. 1102, 1112 (BIA 1999).

20

43. The detained individual has the right to appeal an IJ’s denial of bond to the BIA, 8

21 C.F.R. § 1003.19(f), or to seek another bond hearing before an immigration judge if they can

22 establish a material change in circumstances since the prior bond decision, 8 C.F.R. §

23 1003.19(e).

24

44. Defendant EOIR places the burden of proving eligibility for release on the

25 detained noncitizen seeking bond, not the government. Matter of Guerra, 24 I&N Dec. 37, 40

26 (BIA 2006).

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1

45. Immigration courts do not require recordings of bond proceedings and do not

2 provide transcriptions of the hearing, or even the oral decisions issued in the hearings.

3 Immigration courts also do not issue written decisions unless the individual has filed an

4 administrative appeal of the bond decision. See, e.g., Imm. Court Practice Manual § 9.3(e)(iii),

5 (e)(vii); BIA Practice Manual §§ 4.2(f)(ii), 7.3(b)(ii).

6

46. When an IJ denies release on bond or other conditions, she does not make

7 specific, particularized findings, and instead simply checks a box on a template order.

8

47. On April 5, 2019, this Court granted Plaintiffs’ Motion for Preliminary Injunction

9 and ordered that Defendant EOIR implement key procedural safeguards. In particular, the Court

10 required EOIR to conduct bond hearings within seven days of request by Bond Hearing Class

11 members, place the burden of proof at those hearings on Defendant DHS, record the hearings,

12 produce a recording or verbatim transcript upon appeal, and produce a written decision with

13 particularized determinations of individualized findings at the conclusion of each bond hearing.

14 Dkt. 110 at 19.

15

The Attorney General’s Decision in Matter of M-S-

16

48. On October 12, 2018—approximately two months after Plaintiffs filed their

17 amended complaint raising the bond hearing class claims, and around six months before this

18 Court issued its preliminary injunction—former Attorney General Sessions referred to himself a

19 pro se case seeking to review whether “Matter of X-K-, 23 I&N Dec. 731 (BIA 2005) . . . should

20 be overruled in light of Jennings v. Rodriguez, 138 S. Ct. 830 (2018).” Matter of M-G-G-, 27

21 I&N Dec. 469, 469 (A.G. 2018); see also Matter of M-S-, 27 I&N Dec. 476 (A.G. 2018).

22

49. On November 7, 2018, former Defendant Sessions resigned as Attorney General.

23

50. Subsequently, on February 14, 2019, Attorney General Barr was confirmed by the

24 Senate.

25

51. On April 16, 2019, Defendant Barr issued Matter of M-S-, 27 I. & N Dec. 509

26 (A.G. 2018). In this decision, Defendant Barr reversed and vacated Matter of X-K-, 23 I&N Dec.

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1 731 (BIA 2005), holding the Immigration and Nationality Act (INA) does not permit bond

2 hearings for individuals who enter the United States without inspection, establish a credible fear

3 for persecution or torture, and are then referred for full removal hearings before the immigration

4 court.

5

52. Although existing regulations provide for bond hearings except in limited

6 circumstances not applicable here, Defendant Barr did not formally rescind or modify the

7 regulations or engage in the required rulemaking process.

8

53. Defendant Barr stayed the effective date of his decision for 90 days so that DHS

9 may conduct the “necessary operational planning for additional detention and parole decisions”

10 that will result from the elimination of IJ bond hearings. Matter of M-S-, 27 I&N Dec. at 519 n.8.

11

54. Under Matter of M-S- , asylum seekers will be restricted to requesting release

12 from ICE—the jailing authority—through the parole process. 27 I&N Dec. at 516-17 (citing 8

13 U.S.C. § 1182(d)(5)). In contrast to a bond hearing before an immigration judge, the parole

14 process consists merely of a custody review conducted by low-level ICE detention officers. See 8

15 C.F.R. § 212.5. It includes no hearing before a neutral decision maker, no record of any kind, and

16 no possibility for appeal. See id. Instead, ICE officers make parole decisions—that can result in

17 months or years of additional incarceration—by merely checking a box on a form that contains

18 no factual findings, no specific explanation, and no evidence of deliberation.

19

55. In Matter of M-S-, Defendant Barr also ordered that the noncitizen in that case,

20 who had previously been released on bond, “must be detained until his removal proceedings

21 conclude” unless DHS chooses to grant him parole. Matter of M-S-, 27 I&N Dec. at 519.

22

56. Pursuant to Matter of M-S-, Defendants will initiate a policy and practice of

23 denying bond hearings to noncitizens seeking protection who are apprehended after entering

24 without inspection, even after being found to have a credible fear of persecution or torture and

25 even after their cases are transferred for full hearings before the immigration court.

26

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1

Plaintiff Yolany Padilla

2

57. Yolany Padilla is a citizen of Honduras seeking asylum in the United States for

3 herself and her 6-year-old son J.A.

4

58. On or about May 18, 2018, Ms. Padilla and J.A. entered the United States. As

5 they were making their way to a nearby port of entry, they were arrested by a Border Patrol agent

6 for entering without inspection.

7

59. When they arrived at the port of entry, an officer there announced to her and the

8 rest of the group that the adults and children were going to be separated. The children old enough

9 to understand the officer began to cry. J.A. clutched his mother’s shirt and said, “No, mommy, I

10 don’t want to go.” Ms. Padilla reassured her son that any separation would be short, and that

11 everything would be okay. She was able to stay with her son until they were transferred later that

12 day to a holding facility known as a hielera, or freezer, because of the freezing temperatures of

13 the rooms. Ms. Padilla and J.A. were then forcibly separated without explanation.

14

60. While detained in the hielera, Ms. Padilla informed the immigration officers that

15 she and her son were afraid to return to Honduras.

16

61. About three days later, Ms. Padilla was transferred to another facility in Laredo,

17 Texas. The officers in that facility took her son’s birth certificate from her. When she asked for it

18 back, she was told that the immigration authorities had it.

19

62. About twelve days later, Ms. Padilla was transferred to the Federal Detention

20 Center in SeaTac, Washington.

21

63. For many weeks after J.A. was forcibly taken from her, Ms. Padilla received no

22 information regarding his whereabouts despite repeated inquiries. Around a month into her

23 detention, the Honduran consul visited Ms. Padilla at the detention center, and she explained that

24 she had no news of her 6-year-old son. Soon thereafter, she was given a piece of paper stating

25 that J.A. was in a place called Cayuga Center in New York, thousands of miles away.

26

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1

64. On July 2, 2018, more than six weeks after being apprehended and detained, Ms.

2 Padilla was given a credible fear interview. The asylum officer issued a positive credible fear

3 determination, and she was placed in removal proceedings.

4

65. On July 6, 2018, Ms. Padilla attended her bond hearing before the immigration

5 judge. During the bond hearing, the immigration judge placed the burden of proof on Ms. Padilla

6 to demonstrate that she is neither a danger nor flight risk. To her knowledge, there is no verbatim

7 transcript or recording of her bond hearing. The immigration judge set a bond amount of $8,000.

8

66. Ms. Padilla was released on July 6, 2018, after posting bond.

9

67. Pursuant to Matter of M-S-, Ms. Padilla now faces the prospect of being re-

10 detained without a bond hearing.

11

Plaintiff Ibis Guzman

12

68. Ibis Guzman is a citizen of Honduras seeking asylum in the United States for

13 herself and her 5-year-old son R.G.

14

69. On or about May 16, 2018, Ms. Guzman and R.G. entered the United States.

15 When they were apprehended by Border Patrol agents for entering without inspection, Ms.

16 Guzman informed them that she and R.G. are seeking asylum.

17

70. After initial questioning, an officer came and forcibly took R.G. from Ms.

18 Guzman, falsely informing her she would be able to see him again in three days. After those

19 three days, Ms. Guzman was transferred to another CBP facility, where officers told her they did

20 not know anything about her son’s whereabouts.

21

71. Ms. Guzman was then transferred to a facility in Laredo, Texas, where she was

22 detained without any knowledge of the whereabouts of her child and without any means to

23 contact him. She did not receive any information about him during this time, despite her repeated

24 attempts to obtain such information.

25

72. About two weeks later, Ms. Guzman was transferred to the Federal Detention

26 Center in SeaTac, Washington. After being held there for about another week, she was finally

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1 informed her child had been placed with Baptist Child and Family Services in San Antonio,

2 Texas, thousands of miles from where she was being held.

3

73. On June 20, 2018, Ms. Guzman was transferred to the Northwest Detention

4 Center in Tacoma, Washington.

5

74. On June 27, 2018, over a month after being apprehended and detained, Ms.

6 Guzman attended a credible fear interview. The asylum officer determined that she has a credible

7 fear, and she was placed in removal proceedings.

8

75. On July 3, 2018, Ms. Guzman attended a bond hearing before immigration judge.

9 At the bond hearing, the immigration judge placed the burden of proof on Ms. Guzman to

10 demonstrate that she qualified for a bond. At the conclusion of that bond hearing, an immigration

11 judge issued an order denying her release on bond pending the adjudication of her asylum claim

12 on the merits. The immigration judge did not make specific, particularized findings for the basis

13 of the denial. The immigration judge circled the preprinted words “Flight Risk” on a form order.

14 To her knowledge, there is no verbatim transcript or recording of her bond hearing.

15

76. Ms. Guzman was not released until on or about July 31, 2018, after the

16 government was ordered to comply with the preliminary injunction in Ms. L v. ICE.

17

Plaintiff Blanca Orantes

18

77. Blanca Orantes is a citizen of El Salvador seeking asylum in the United States for

19 herself and her 8-year-old son A.M.

20

78. On or about May 21, 2018, Ms. Orantes and A.M. entered the United States. They

21 immediately walked to a CBP station to request asylum, and were subsequently arrested for

22 entering without inspection. Ms. Orantes informed a Border Patrol agent that she and A.M. are

23 seeking asylum.

24

79. Ms. Orantes and her son were transported to a CBP facility. Before entering the

25 building, the officers led Ms. Orantes into a hielera with other adults, and her son into another

26 part of the station with other children.

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80. Ms. Orantes was later interviewed by an immigration officer. At that time,

2 another officer brought A.M. to her and told her to “say goodbye” to him because they were

3 being separated. A.M. began crying and pleading Ms. Orantes not to leave, but was forcibly

4 taken away from Ms. Orantes.

5

81. On or around May 24, 2018, Ms. Orantes was taken to court, where she pled

6 guilty to improper entry under 8 U.S.C. § 1325 and was sentenced to time served. She was then

7 returned to her cell.

8

82. About nine days after this, Ms. Orantes was transported to the Federal Detention

9 Center in SeaTac, Washington.

10

83. Ms. Orantes was not provided any information about her child until June 9, 2018,

11 when an ICE officer handed her a slip of paper advising that her son was being held at Children’s

12 Home of Kingston, in Kingston, New York.

13

84. On June 20, 2018, Ms. Orantes was transferred to the Northwest Detention Center

14 in Tacoma, Washington, still thousands of miles away from her son.

15

85. On June 27, 2018, around five weeks after being apprehended, Ms. Orantes was

16 given a credible fear interview. The following day, June 28, 2018, the asylum officer determined

17 that Ms. Orantes established a credible fear, and she was placed in removal proceedings.

18

86. Ms. Orantes requested a bond hearing upon being provided the positive credible

19 fear determination.

20

87. On July 16, 2018, Ms. Orantes was given a bond hearing before the immigration

21 court. At the bond hearing, the immigration judge placed the burden of proof on Ms. Orantes to

22 demonstrate that she qualified for a bond. At the conclusion of that bond hearing, an immigration

23 judge issued an order denying her release on bond pending the adjudication of her asylum claim

24 on the merits.

25

88. In denying Ms. Orantes’s request for a bond, the immigration judge did not make

26 specific, particularized findings for the basis of the denial, and even failed to check the box

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1 indicating why she was denied bond on the template order.

2

89. She was released from custody on or about July 23, 2018, after the federal

3 government was forced to comply with the preliminary injunction in Ms. L. v. ICE, and

4 thereafter reunited her with her child.

5

Plaintiff Baltazar Vasquez

6

90. Plaintiff Baltazar Vasquez is a citizen of El Salvador seeking asylum in the

7 United States.

8

91. On or about June 1, 2018, Mr. Vasquez entered the United States. He was arrested

9 by a Border Patrol agent for entering without inspection, and informed the agent that he was

10 afraid to return to El Salvador and wanted to seek asylum.

11

92. Mr. Vasquez was first transported by officers to a federal holding center near San

12 Diego, California. Around nine days later, he was transferred to a Federal Detention Center in

13 Victorville, California.

14

93. On or about July 20, 2018, Mr. Vasquez was transferred to another detention

15 center in Adelanto, California.

16

94. On or about July 31, 2018, nearly two months after he was first apprehended, Mr.

17 Vasquez was given a credible fear interview. The asylum officer determined he had a credible

18 fear, and he was placed in removal proceedings.

19

95. Mr. Vasquez requested a bond hearing upon being provided the positive credible

20 fear determination.

21

96. On August 20, 2018, Mr. Vasquez was given a bond hearing before the

22 immigration court. At the bond hearing, Mr. Vasquez had the burden to prove that he is neither a

23 danger or flight risk, but ultimately, DHS agreed to stipulate to a bond amount of 8,000 dollars.

24 The immigration judge approved this agreement but also required Mr. Vasquez to wear an ankle

25 monitor.

26

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97. Pursuant to Matter of M-S-, Mr. Vasquez now faces the prospect of being re-

2 detained without a bond hearing.

3

VI. CLASS ALLEGATIONS

4

98. Plaintiffs brought this action on behalf of themselves and all others who are

5 similarly situated pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2). A class action

6 is proper because this action involves questions of law and fact common to the classes, the

7 classes are so numerous that joinder of all members is impractical, Plaintiffs’ claims are typical

8 of the claims of the classes, Plaintiffs will fairly and adequately protect the interests of the

9 respective classes, and Defendants have acted on grounds that apply generally to the class, so

10 that final injunctive relief or corresponding declaratory relief is appropriate with respect to the

11 class as a whole.

12

99. Plaintiffs sought to represent the following nationwide classes:

13

a. Credible Fear Interview Class (“CFI Class”): All detained asylum seekers

14

in the United States subject to expedited removal proceedings under 8 U.S.C.

15

§1225(b) who are not provided a credible fear determination within 10 days of

16

requesting asylum or expressing a fear of persecution to a DHS official,

17

absent a request by the asylum seeker for a delayed credible fear interview.

18

b. Bond Hearing Class (“BH Class”): All detained asylum seekers who entered

19

the United States without inspection, who were initially subject to expedited

20

removal proceedings under 8 U.S.C. §1225(b), who were determined to have

21

a credible fear of persecution, but who are not provided a bond hearing with a

22

verbatim transcript or recording of the hearing within 7 days of requesting a

23

bond hearing.

24

100. On March 6, 2019, the district court certified the following nationwide classes:

25

a. Credible Fear Interview Class: All detained asylum seekers in the United

26

States subject to expedited removal proceedings under 8 U.S.C. § 1225(b)

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1

who are not provided a credible fear determination within ten days of the later

2

of (1) requesting asylum or expressing a fear of persecution to a DHS official

3

or (2) the conclusion of any criminal proceeding related to the circumstances

4

of their entry, absent a request by the asylum seeker for a delayed credible

5

fear interview.

6

b. Bond Hearing Class: All detained asylum seekers who entered the United

7

States without inspection, were initially subject to expedited removal

8

proceedings under 8 U.S.C. § 1225(b), were determined to have a credible

9

fear of persecution, but are not provided a bond hearing with a verbatim

10

transcript or recording of the hearing within seven days of requesting a bond

11

hearing.

12

101. The certified classes currently are represented by counsel from the Northwest

13 Immigrant Rights Project and the American Immigration Council. Counsel have extensive

14 experience litigating class action lawsuits and other complex cases in federal court, including

15 civil rights lawsuits on behalf of noncitizens.

16

Credible Fear Interview Class (“CFI Class”)

17

102. All named Plaintiffs represent the certified CFI Class.

18

103. The CFI Class meets the numerosity requirement of Federal Rule of Civil

19 Procedure 23(a)(1). The class is so numerous that joinder of all members is impracticable.

20 Plaintiffs are not aware of the precise number of potential class members, but upon information

21 and belief, there are thousands of individuals seeking protection who are subject to expedited

22 removal proceedings and not provided a credible fear interview within ten days of expressing a

23 fear of return or desire to apply for asylum. Defendants are uniquely positioned to identify all

24 class members.

25

104. The CFI Class meets the commonality requirement of Federal Rule of Civil

26 Procedure 23(a)(2). By definition, members of the CFI Class are subject to a common practice

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1 by Defendants: their failure to provide timely credible fear interviews. This lawsuit raises a

2 question of law common to members of the CFI Class, namely whether Defendants’ delay in

3 providing credible fear interviews constitutes agency action unlawfully withheld or unreasonably

4 delayed under the APA, the INA, and the Due Process Clause.

5

105. The CFI Class meets the typicality requirement of Federal Rule of Civil

6 Procedure 23(a)(3), because the claims of the representative Plaintiffs are typical of the claims of

7 the class. All named Plaintiffs were not provided credible fear interviews within 10 days of being

8 apprehended and expressing a fear of return to their countries of origin.

9

106. The CFI Class meets the adequacy requirements of Federal Rule of Civil

10 Procedure 23(a)(4). The representative Plaintiffs seek the same relief as the other members of the

11 class—namely, an order that Defendants promptly provide credible fear interviews. In defending

12 their own rights, the named Plaintiffs will defend the rights of all class members fairly and

13 adequately.

14

107. The members of the class are readily ascertainable through Defendants’ records.

15

108. The CFI Class also satisfies Federal Rule of Civil Procedure 23(b)(2). Defendants

16 have acted on grounds generally applicable to the class by unreasonably delaying putative class

17 members’ credible fear interviews. Injunctive and declaratory relief is thus appropriate with

18 respect to the class as a whole.

19

Bond Hearing Class (“BH Class”)

20

109. Plaintiffs Orantes and Vasquez represent the certified Bond Hearing Class.

21

110. The BH Class meets the numerosity requirement of Federal Rule of Civil

22 Procedure 23(a)(1). The class is so numerous that joinder of all members is impracticable.

23 Plaintiffs are not aware of the precise number of potential class members, but upon information

24 and belief, there are thousands of individuals seeking protection who entered without inspection,

25 were referred to standard removal proceedings after a positive credible fear determination, and

26 were not provided bond hearings either within seven days of requesting the hearing, or whose

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1 bond hearings were not recorded or transcribed. Defendants are uniquely positioned to identify

2 all class members.

3

111. The BH Class meets the commonality requirement of Federal Rule of Civil

4 Procedure 23(a)(2). Members of the BH Class are subject to common policies and practices by

5 Defendants: their failure to provide timely bond hearings; their placement of the burden of proof

6 on the detained on the detained individual during bond hearings; their failure to provide a

7 verbatim transcript or recording of the bond hearing; their failure to provide a contemporaneous

8 written decision with particularized findings; and finally, due to Matter of M-S-, all class

9 members will be denied bond hearings.

10

112. This lawsuit raises questions of law common to members of the BH Class:

11 whether Defendants’ failure to provide bond hearings violates class members’ right to due

12 process, right to a parole hearing under 8 U.S.C. § 1182(d)(5), and the rulemaking requirements

13 of the Administrative Procedure Act; whether Defendants’ failure to provide timely bond

14 hearings constitutes agency action unlawfully withheld or unreasonably delayed under the APA,

15 that is contrary to law under the APA; whether due process requires Defendants to provide bond

16 hearings to putative class members within seven days of a request, and whether due process and

17 the APA requires Defendants to place the burden of proof on the government to justify continue

18 detention, and to provide adequate procedural safeguards during the bond hearings provided to

19 putative class members.

20

113. The BH Class meets the typicality requirement of Federal Rule of Civil Procedure

21 23(a)(3), because the claims of the representative Plaintiffs are typical of the claims of the class.

22 Plaintiffs Orantes and Vasquez were not provided bond hearings within seven days of requesting

23 a hearing. At the bond hearing, all class representatives were assigned the burden to prove that

24 they are eligible for release under bond. All class representatives were denied a contemporaneous

25 written decision with particularized findings. Defendants are not required to record or provide

26 verbatim transcripts of the hearings and did not advise Plaintiffs Orantes and Vasquez that

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1 recordings had been made until filing their First Amended Complaint, Dkt. 8. Finally, in Matter

2 of M-S-, Defendant Barr has announced that, as of July 15, 2019, future Bond Hearing Class

3 members will be deprived of any bond hearing.

4

114. The BH Class meets the adequacy requirements of Federal Rule of Civil

5 Procedure 23(a)(4). The representative Plaintiffs seek the same relief as the other members of the

6 class: an order requiring Defendants to provide bond hearings within seven days of request, to

7 place the burden of proof on the government during these bond hearings, to provide a verbatim

8 transcript or recording of the hearing, and to provide a contemporaneous written decision with

9 particularized findings at the end of the hearing. In defending their own rights, the named

10 Plaintiffs will defend the rights of all class members fairly and adequately.

11

115. The members of the class are readily ascertainable through Defendants’ records.

12

116. The BH Class also satisfies Federal Rule of Civil Procedure 23(b)(2). Defendants

13 have acted on grounds generally applicable to the class by unreasonably delaying putative class

14 members’ bond hearings. Putative class members received an untimely bond hearing in which

15 they had to bear the burden of proof. Defendants generally do not record or provide verbatim

16 transcripts of putative class members’ bond hearings, nor issue contemporaneous written

17 decisions with particularized findings. Moreover, after July 15, 2019, class members will not

18 receive any bond hearings. Injunctive and declaratory relief is thus appropriate with respect to

19 the class as a whole.

20

VII. CAUSES OF ACTION

21

COUNT I

(Violation of Fifth Amendment Right to Due Process—Right to Timely Bond Hearing with

22

Procedural Safeguards)

23

117. All of the foregoing allegations are repeated and realleged as though fully set

24 forth herein.

25

118. The Due Process Clause of the Fifth Amendment provides that “no person . . . shall

26 be deprived of . . . liberty . . . without due process of law.” U.S. Const., amend. V.

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1

119. Named Plaintiffs and all BH Class members were apprehended on U.S. soil after

2 entry and are thus “persons” to whom the Due Process Clause applies.

3

120. The Due Process Clause permits civil immigration detention only where such

4 detention is reasonably related to the government’s interests in preventing flight or protecting the

5 community from danger and is accompanied by adequate procedures to ensure that detention

6 serves those goals.

7

121. Both substantive and procedural due process therefore require an individualized

8 assessment of BH Class members’ flight risk or danger to the community in a custody hearing

9 before a neutral decision maker.

10

122. The Due Process Clause guarantees that such individualized custody hearings be

11 provided in a timely manner to afford Plaintiffs and BH Class members an opportunity to

12 challenge whether their continued detention is necessary to ensure their future appearance or to

13 avoid danger to the community. Federal courts have consistently held that due process requires

14 an expeditious opportunity to receive that individualized assessment. Defendants’ interests in

15 prolonging this civil detention do not outweigh the liberty interests of Plaintiffs and BH Class

16 members.

17

123. The Due Process Clause requires that Plaintiffs and BH Class members receive

18 adequate procedural protections to assert their liberty interest. The Due Process Clause requires

19 the government to bear the burden of proof in the custodial hearing of demonstrating that the

20 continued detention of Plaintiffs and BH Class members is justified. Defendants’ interests do not

21 outweigh the liberty interests for Plaintiffs and BH Class members.

22

124. The Due Process Clause requires that the government provide either a transcript or

23 recording of the hearing and specific, particularized findings of the bond hearing to provide a

24 meaningful opportunity for Plaintiffs and BH Class members to evaluate and appeal the IJ’s

25 custody determination. Defendants’ interests in issuing decisions without these procedural

26 protections do not outweigh the liberty interests for Plaintiffs and BH Class members.

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125. Pursuant to Matter of M-S-, Defendants deprive Plaintiffs and BH Class members

2 the right to any custodial hearing before a neutral arbiter to make an individualized determination

3 of whether they present a danger to the community or a flight risk.

4

126. Pursuant to Matter of M-S-, Plaintiffs and BH Class members who have been

5 released face the prospect of being re-detained without a bond hearing.

6

127. Prior to Matter of M-S-, Defendants recognized that BH Class members are entitled

7 to a bond hearing. Defendants have regularly delayed these hearings for several weeks after the

8 credible fear determinations.

9

128. Defendants have also failed to provide the other bond hearing procedures required

10 by due process, placing the burden of proof on Plaintiffs and BH Class members and refusing to

11 provide them with a recording or verbatim transcript of the hearing as well as a written decision

12 with particularized findings of the bond hearing.

13

129. As a result, by failing to provide prompt bond hearings with adequate procedural

14 safeguards, Defendants violate the Fifth Amendment’s Due Process Clause.

15

COUNT II

(Violation of Immigration & Nationality Act—Failure to Provide

16

an Individualized Custodial Hearing)

17

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

18 herein.

19

131. 8 U.S.C. § 1225(b)(1)(A) distinguishes BH class members, who are detained after

20 entering the country, from those who are charged as arriving and seeking admission at a port of

21 entry. 8 U.S.C. § 1225(b)(1)(A)(iii)(I) provides that the Attorney General “may” place BH Class

22 members in expedited removal proceedings, but unlike those who are charged as arriving, does

23 not require that they be subject to mandatory detention.

24

132. Under 8 U.S.C. § 1225(b)(1)(B)(iii)(IV), asylum seekers are subject to mandatory

25 detention only while “pending a final determination of credible fear of persecution and, if found

26 not to have such a fear, until removed.”

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133. Plaintiffs and all BH Class members entered without inspection and were placed in

2 expedited removal proceedings under to 8 U.S.C. § 1225(b). All of them established a credible

3 fear of persecution or torture and were thereafter transferred for full hearings before the

4 immigration court.

5

134. As such, under the Immigration and Nationality Act, Plaintiffs are entitled to seek a

6 custody hearing where the Attorney General may grant bond or conditional parole. 8 U.S.C. §

7 1226(a); 8 C.F.R. § 1236.1(d); 8 C.F.R. § 1003.19(h)(2).

8

135. Defendant Barr’s decision in Matter of M-S- denies Plaintiffs and BH Class

9 members their statutory right to an individualized custody hearing.

10

COUNT III

(Violation of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(d)(5), and

11 Violation of Fifth Amendment Right to Due Process—Failure to Provide an Individualized

Parole Hearing) 12

13

136. All of the foregoing allegations are repeated and realleged as though fully set

14 forth herein.

15

137. The Immigration and Nationality Act (“INA”)provides that the Attorney General

16 “may . . . in his discretion parole into the United States . . . on a case-by-case basis for urgent

17 humanitarian reasons or significant public benefit any alien applying for admission to the United

18 States . . . .” 8 U.S.C. § 1182(d)(5)(A). Under the INA and implementing regulations,

19 immigration detention of an asylum seeker must be based on an individualized determination

20 that the asylum seeker constitutes a flight risk or a danger to the community. See id.; see also 8

21 C.F.R. § 212.5(b)(5).

22

138. Pursuant to implementing regulations, parole reviews are conducted solely by

23 U.S. Immigration and Customs Enforcement (“ICE”)—the jailing authority. See id.

24

139. However, the INA requires an individualized parole hearing before an

25 immigration judge to decide if the asylum seeker constitutes a flight risk or danger to the

26 community.

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140. Defendants’ policy and practice of denying Plaintiffs and those similarly situated

2 parole hearings before an immigration judge violates the INA.

3

141. To the extent the statute denies parole hearings before an immigration judge, the

4 statute violates due process.

5

COUNT IV

(Violation of Administrative Procedure Act—Failure to Follow

6

Notice & Comment Rulemaking)

7

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

8 herein.

9

143. Regulations that currently govern Defendants DHS and EOIR provide that Plaintiffs

10 and BH Class members may seek review of ICE’s custody decision before an IJ. See 8 C.F.R. §§

11 1003.19(h)(2), 1236.1(d).

12

144. Matter of M-S- is a final agency action that purports to alter those regulations by

13 adjudication, without engaging in notice and comment rulemaking.

14

145. The Administrative Procedure Act requires Defendants to engage in notice and

15 comment rulemaking before undertaking the changes that Matter of M-S- purports to make to BH

16 Class Members’ rights to a bond hearing. See 5 U.S.C. §§ 551(5), 553(b) & (c).

17

146. As a result, Matter of M-S- is unlawful agency action that this Court should set

18 aside because that decision was issued “without observance of procedure required by law.” 5

19 U.S.C. § 706(2)(D).

20

COUNT V

21 (Violation of Fifth Amendment Right to Due Process—Delays of Credible Fear Interviews)

22

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

23 herein.

24

148. The Due Process Clause guarantees timely and adequate procedures to test

25 Defendants’ rationale for detaining asylum seekers.

26

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149. Defendants’ practice of delaying individuals seeking protection credible fear

2 interviews beyond 10 days prevents Plaintiffs Padilla, Guzman, Orantes, and Vasquez, and the

3 CFI Class from demonstrating that they have a “significant possibility” of obtaining protection

4 and a lawful status in the United States. 8 U.S.C. § 1225(b)(1)(B)(v). That practice thus further

5 lengthens their time in detention without the opportunity to appear before a neutral decision

6 maker to receive an individualized custodial assessment.

7

150. Defendants’ interests do not outweigh the significant risks that delayed credible fear

8 interviews pose in wrongfully prolonging Plaintiffs Padilla, Guzman, Orantes, and Vasquez , and

9 CFI Class members’ detention, nor do they outweigh their protected due process interests in

10 timely demonstrating their right to protection in the United States.

11

151. Defendants’ practice of delaying credible fear interviews therefore violates the CFI

12 Class’s right to due process.

13

COUNT VI

(Administrative Procedure Act—Delays of Credible Fear Interviews and Bond Hearings

14

and Denial of Procedural Protections)

15

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

16 herein.

17

153. The Administrative Procedure Act (“APA”) imposes on federal agencies the duty to

18 conclude matters presented to them within a “reasonable time.” 5 U.S.C. §555(b).

19

154. The APA also permits the CFI and BH Classes to “compel agency action

20 unlawfully withheld or unreasonably delayed,” 5 U.S.C. § 706(1), and prohibits final agency

21 action that is arbitrary and capricious, that violates the Constitution, or that is otherwise not in

22 accordance with law, id. § 706(2)(A)-(B).

23

155. Both credible fear interviews and bond hearings are “discrete agency actions” that

24 Defendants are “required to take,” and therefore constitute agency action that a court may

25 compel. Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004). 26

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1

156. Defendants’ failure to expeditiously conduct a credible fear interview after

2 detaining Plaintiffs and members of the CFI Class constitutes “an agency action unlawfully

3 withheld or unreasonably delayed” under the APA. See 5 U.S.C. § 706(1).

4

157. Defendants’ failure to promptly conduct a bond hearing for plaintiffs and members

5 of the BH Class within 7 days of a request also constitutes “an agency action unlawfully

6 withheld or unreasonably delayed” under the APA. See id.

7

158. Defendants’ policies regarding (1) the burden of proof in bond proceedings, (2) the

8 lack of recordings and transcripts, (3) the failure to provide specific, particularized findings

9 constitute final agency action.

10

159. The lack of these procedural protections is contrary to law and violates the

11 constitutional right to due process of noncitizens seeking protection. See 5 U.S.C. § 706(2).

12

VIII. PRAYER FOR RELIEF

13

Plaintiffs respectfully request that this Court enter judgment against Defendants granting

14 the following relief on behalf of the Credible Fear Interview Class and the Bond Hearing Class:

15

A. Declare that Defendants have an obligation to provide Credible Fear Interview Class

16

members with a credible fear interview and determination within 10 days of

17

requesting asylum or expressing a fear of persecution or torture to any DHS official.

18

B. Preliminarily and permanently enjoin Defendants from not providing Credible Fear

19

Interview Class members their credible fear determination within 10 days of

20

requesting asylum or expressing a fear of persecution or torture to any DHS official.

21

C. Declare that Defendants have an obligation to provide Bond Hearing Class members

22

a bond hearing before an immigration judge.

23

D. Preliminarily and permanently enjoin Defendants from not providing Bond Hearing

24

Class members a bond hearing before an immigration judge.

25

E. Declare that Defendants have an obligation to provide Bond Hearing Class members

26

a bond hearing within 7 days of their requesting a hearing to set reasonable conditions

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1

for their release pending adjudication of their claims for protection.

2

F. Declare that Defendant DHS must bear the burden of proof to show continued

3

detention is necessary in civil immigration proceedings.

4

G. Declare that Defendants have an obligation to provide Bond Hearing Class members

5

a bond hearing with adequate procedural safeguards, including providing a verbatim

6

transcript or recording of their bond hearing upon appeal.

7

H. Declare that in bond hearings immigration judges must make specific, particularized

8

written findings as to the basis for denying release from detention, including findings

9

identifying the basis for finding that the individual is a flight risk or a danger to the

10

community.

11

I. Preliminarily and permanently enjoin Defendants from not providing Bond Hearing

12

Class members their bond hearing within 7 days of the class members’ request.

13

J. Preliminarily and permanently enjoin Defendants from not providing Bond Hearing

14

Class members bond hearings where Defendant DHS bears the burden of proof to

15

show continued detention is necessary.

16

K. Preliminarily and permanently enjoin Defendants from not providing Bond Hearing

17

Class members their bond hearing with a verbatim transcript or recording of their

18

bond hearing.

19

L. Preliminarily and permanently enjoin Defendants from not providing Bond Hearing

20

Class members specific, particularized written findings contemporaneously issued by

21

the immigration judge as to the basis for denying release from detention, including

22

findings identifying the basis for finding that the individual is a flight risk or a danger

23

to the community.

24

M. Order Defendants to pay reasonable attorneys’ fees and costs.

25

N. Order all other relief that is just and proper.

26

THIRD AMENDED COMPL. - 26 Case No. 2:18-cv-928 MJP

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Case 2:18-cv-00928-MJP Document 130 Filed 05/20/19 Page 28 of 29

1 Dated this 20th day of May, 2019.
2 s/ Matt Adams 3 Matt Adams, WSBA No. 28287 4 s/ Leila Kang
Leila Kang, WSBA No. 48048 5
s/ Aaron Korthuis 6 Aaron Korthuis, WSBA No. 53974 7 NORTHWEST IMMIGRANT RIGHTS 8 PROJECT
615 Second Avenue, Suite 400 9 Seattle, WA 98104
(206) 957-8611 10 matt@nwirp.org 11 leila@nwirp.org
aaron@korthuis.org 12
13 s/ Emily Chiang Emily Chiang, WSBA No. 50517
14 ACLU OF WASHINGTON 15 901 5th Ave #630
Seattle, WA 98164 16 (206) 624-2184
echiang@aclu-wa.org 17
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THIRD AMENDED COMPL. - 27 Case No. 2:18-cv-928 MJP

s/ Trina Realmuto Trina Realmuto* s/ Kristin Macleod-Ball Kristin Macleod-Ball* AMERICAN IMMIGRATION COUNCIL 1318 Beacon Street, Suite 18 Brookline, MA 02446 (857) 305-3600 trealmuto@immcouncil.org kmacleod-ball@immcouncil.org
s/ Judy Rabinovitz Judy Rabinovitz* s/ Michael Tan Michael Tan* s/ Anand Balakrishnan Anand Balakrishnan* ACLU IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th floor New York, NY 10004 (212) 549-2618 jrabinovitz@aclu.org mtan@aclu.org abalakrishnan@aclu.org *Admitted pro hac vice
NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 Telephone (206) 957-8611

Case 2:18-cv-00928-MJP Document 130 Filed 05/20/19 Page 29 of 29

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CERTIFICATE OF SERVICE

2

I hereby certify that on May 20, 2019, I had the foregoing electronically filed with the

3 Clerk of the Court using the CM/ECF system, which will send notification of such filing to those

4 attorneys of record registered on the CM/ECF system. All other parties (if any) shall be served
5 in accordance with the Federal Rules of Civil Procedure.
6

7

DATED this 20th day of May, 2019.

8 s/ Matt Adams

9

Matt Adams

NORTHWEST IMMIGRANT RIGHTS PROJECT

10

615 Second Avenue, Suite 400

11

Seattle, Washington 98104

Telephone: (206) 957-8611

12

Facsimile: (206) 587-4025

Email: matt@nwirp.org

13

14

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16

17

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21

22

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24

25

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8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

YOLANY PADILLA, et al.,

CASE NO. C18-928 MJP

10

Plaintiffs,

ORDER ON MOTIONS RE:

11 v.

PRELIMINARY INJUNCTION

12 U.S. IMMIGRATION AND

13

CUSTOMS ENFORCEMENT, et al.,

14

Defendants.

15

The above-entitled Court, having received and reviewed:

16

1. Defendants’ Motion to Vacate the Court’s Preliminary Injunction Order (Dkt. No.

17

114), Plaintiffs’ Response in Opposition (Dkt. No. 126), and Defendants’ Reply in

18

Support (Dkt. No. 128);

19

2. Plaintiffs’ Motion for Modification of the Existing Preliminary Injunction (Dkt. No.

20

131), Defendants’ Response in Opposition (Dkt. No. 139), and Plaintiffs’ Reply in

21

Support (Dkt. No. 140);

22 all attached declarations and exhibits; and relevant portions of the record, and having heard oral

23 argument on the motions, rules as follows:

24

ORDER ON MOTIONS RE: PRELIMINARY INJUNCTION - 1

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1

IT IS ORDERED that the injunction entered by this Court on April 5, 2019 is

2 MODIFIED as follows:

3

PART A: The Court AFFIRMS its previously-entered injunctive relief requiring

4 Defendant Executive Office for Immigration Review to:

5

1. Conduct bond hearings within seven days of a bond hearing request by a class

6

member, and release any class member whose detention time exceeds that limit;

7

2. Place the burden of proof on Defendant Department of Homeland Security in those

8

bond hearings to demonstrate why the class member should not be released on bond,

9

parole, or other conditions;

10

3. Record the bond hearing and produce the recording or verbatim transcript of the

11

hearing upon appeal; and

12

4. Produce a written decision with particularized determinations of individualized

13

findings at the conclusion of the bond hearing.

14

PART B: The Court MODIFIES the injunction to find that the statutory prohibition at

15 Immigration and Nationality Act § 235(b)(1)(B)(ii) against releasing on bond persons found to

16 have a credible fear of persecution if returned to their country and awaiting a determination of

17 their asylum application violates the U.S. Constitution; the Bond Hearing Class is

18 constitutionally entitled to a bond hearing (under the conditions enumerated above) pending

19 resolution of their asylum applications.

20

IT IS FURTHER ORDERED that the injunction as modified will go into effect 14 days

21 from the date of this order.

22

23

24

ORDER ON MOTIONS RE: PRELIMINARY INJUNCTION - 2

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1

Summary

2

On March 16, 2019, this Court certified a Bond Hearing Class consisting of immigrants

3 who have entered the United States without inspection, requested asylum, and who the

4 Government has determined have a credible fear of persecution if they return home. The Court

5 ruled, if the members of this class are given a bond hearing, it must comply with the Due Process

6 Clause. An injunction ordering the Defendants to do so has already issued.

7

The first decision was based, not only on the Court’s analysis of the constitutional due

8 process owed to these class members, but also on 50 years of statutory and case law supporting

9 the right of persons detained for non-criminal reasons to be released upon posting bond. Shortly

10 after that injunction was issued, the Attorney General published a decision announcing that

11 immigrants in removal proceedings awaiting the determination of their application for asylum

12 must be detained for the duration of that process, subject to release only under a highly-limited

13 “parole” system adjudicated solely by immigration officials. In the wake of that decision, the

14 Government moved to vacate the previously-entered injunction.

15

It is the finding of this Court that it is unconstitutional to deny these class members a

16 bond hearing while they await a final determination of their asylum request.

17

Procedural Background

18

On April 5, 2019, this Court entered an Order Granting Preliminary Injunction (Dkt. No.

19 110) requiring Defendant Executive Office for Immigration Review to:

20

1. Conduct bond hearings within seven days of a bond hearing request by a class

21

member, and release any class member whose detention time exceeds that limit;

22

23

24

ORDER ON MOTIONS RE: PRELIMINARY INJUNCTION - 3

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1

2. Place the burden of proof on Defendant Department of Homeland Security in those

2

bond hearings to demonstrate why the class member should not be released on bond,

3

parole, or other conditions;

4

3. Record the bond hearing and produce the recording or verbatim transcript of the

5

hearing upon appeal; and

6

4. Produce a written decision with particularized determinations of individualized

7

findings at the conclusion of the bond hearing.

8 Compliance with the injunction was to be effected no later than May 5, 2019. Id. at 2.

9

On April 16, 2019, the Attorney General (“AG”) issued a decision in Matter of M-S (27

10 I. & N. Dec. 509 (A.G. 2019)) overruling a 2005 Board of Immigration Appeals (“BIA”)

11 determination in Matter of X-K (23 I. & N. Dec. 731 (BIA 2005) which had been cited in the

12 preliminary injunction order. On the basis of the AG’s ruling, the parties (1) agreed to stay the

13 enforcement of the preliminary injunction until May 31, 2019 (Dkt. No. 113) and (2) filed the

14 cross-motions which are the subject of this order. Additionally, Plaintiffs filed a Third Amended

15 Complaint (“TAC”) incorporating challenges to the AG’s decision in Matter of M-S (Dkt. No.

16 130), and Defendants moved to dismiss it. (Dkt. No. 136.)

17

In Matter of M-S, the AG determined that aliens who are originally placed in expedited

18 removal proceedings and then transferred to full removal proceedings after establishing a

19 credible fear do not become eligible for bond upon transfer and that Matter of X-K, in which the

20 BIA had ruled that such aliens were entitled to bond hearings under § 1225(b) of the Immigration

21 and Nationality Act (“INA”), “was wrongly decided.” 27 I. & N. Dec. at 510. The AG found

22 that aliens classified as “entering without inspection” (“EWI”) were subject to mandatory

23 detention without bond following a successful credible fear determination and could be released

24

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1 only upon being paroled for “urgent humanitarian reasons or significant public benefit” under 8

2 U.S.C. § 1182(d)(5)(A). Id. at 516.

3

Discussion

4

District courts possess the discretionary authority to “modify or revoke an injunction as

5 changed circumstances may indicate.” Lapin v. Shulton, Inc., 333 F.2d 169, 170 (9th Cir. 1964).

6 “[S]ound judicial discretion may call for the modification of the terms of an injunctive decree if

7 the circumstances, whether of law or fact, obtaining at the time of its issuance, have changed.”

8 Sys. Fed. No. 91 v. Wright, 364 U.S. 642, 647 (1961).

9

The Court is unquestionably facing “changed circumstances” as a result of the AG’s

10 decision in M-S. While much of the analysis underlying the issuance of the initial preliminary

11 injunction in this matter concerned Plaintiffs’ constitutional rights in the context of their

12 situation, there is no question that analysis sprang from an understanding (as a result of the ruling

13 in X-K) that the class members were entitled to a bond hearing under the INA.

14

This order will undertake a fresh analysis of Plaintiffs’ claims and their request for

15 modified injunctive relief in light of those changed circumstances, but first must examine a series

16 of threshold issues which the Government has raised as bars to continued injunctive relief.

17

I. Threshold issues

18

A. Standing and mootness

19

The Government argues that the claims of the bond hearing class were premised on the

20 ruling in X-K (i.e., that they were eligible for a bond hearing that they were not receiving in a

21 timely manner and with the appropriate amount of due process) and thus have been “mooted” by

22 the M-S determination that the statute does not entitle them to a bond hearing. The claims of the

23 bond hearing class survive the ruling in M-S: nowhere in the Second (and now, the Third)

24

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1 Amended Complaint do Plaintiffs cite X-K as the basis for the relief they seek – their claims are

2 premised on the fundamental unconstitutionality of the Government’s claimed right to detain

3 them indefinitely (see Dkt. No. 26 at ¶¶ 13, 151-52; Dkt. No. 130 at ¶¶ 8, 117-29) and allegations

4 that the ruling in M-S and the policies and practices of Defendants violate the APA. (Dkt. No.

5 130, ¶¶ 142-146, 152-159.)

6

That the named Plaintiffs (Vasquez and Orantes) are not currently being detained is also

7 cited as grounds for challenging their standing and their ability to serve as class representatives.

8 This is not a sound argument for two reasons: First, the INA gives Defendants the right to revoke

9 a bond order at any time on the basis of “changed circumstances.” 8 U.S.C. § 1226(b). The

10 Government submits a declaration from the Deputy Assistant Director of ICE’s Office of

11 Enforcement and Removal Operations (ERO) which states that “[a]t this time, ERO does not

12 intend to re-detain aliens who, after having established credible fear, have an ICE custody release

13 determination or an Immigration Court final bond determination pursuant to INA § 236 issued

14 prior to July 15, 2019.” (Dkt. No. 137, Decl. of Hott at ¶ 6.) The Court is not persuaded that the

15 conditional “at this time” language divests Plaintiffs of standing – the Government’s

16 unwillingness to unconditionally assert that Plaintiffs will not be re-detained means that the

17 specter of re-detention looms and these Plaintiffs and many members of their class face the real

18 and imminent threat of bondless and indefinite detention absent the relief they seek.1

19

Second, as this Court has already ruled, the claims of the bond hearing class continue to

20 be “inherently transitory” and thus the named Plaintiffs are permitted to represent the interests of

21 class members whose claims may both come ripe and/or expire during the course of the

22

23
1 The Court notes, along these lines, that as a result of the decision in M-S the respondent, who was initially ordered
24 released on bond, was ordered “detained until his removal proceedings conclude.” 27 I. & N. at 510.

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1 litigation. (See Dkt. No. 102 at 8, Dkt. No. 110 at 5); Sosna v. Iowa, 419 U.S. 393, 402 (1975).

2 Additionally, now that the class is certified to pursue its due process claims, that class

3 ‘“acquire[s] a legal status separate from the interest asserted by [the class representative],’ so that

4 an Article III controversy now exists ‘between a named defendant and a member of the

5 [certified] class.’” Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1090 (9th Cir. 2011)(quoting

6 Sosna at 399; alterations in original).

7

B. 8 U.S.C. § 1252(f)(1)

8

In an earlier order denying Defendants’ first motion to dismiss this matter, this Court

9 declined to be bound by 8 U.S.C. § 1252(f)(1), which states that “no court . . . shall have

10 jurisdiction or authority to enjoin or restrain the operation of the provisions” of the INA “other

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

12 proceedings under such part have been initiated.” The Court held that “Plaintiffs are not asking

13 the Court to enjoin or restrain the operation of the provisions of any statute, but instead seek an

14 injunction against actions and policies that violate those statutes.” (Dkt. No. 91 at 19.) That

15 holding was unquestionably grounded in the Matter of X-K, which held that Plaintiffs are

16 entitled to a bond hearing under the INA. With the AG’s determination that X-K “was wrongly

17 decided,” the parties (and the Court) are required to address the impact of § 1252(f)(1).

18

The Government’s position is straightforward: the effect of this provision is to ban

19 classwide injunctive relief on any issue touching on the enforcement of the INA. Since it is now

20 “settled” (from the Government’s perspective) that the INA excludes Plaintiffs from bond

21 hearings pending final adjudication of their asylum application, it can be argued that an

22 injunction which orders bond hearings for Plaintiffs as a class “enjoin[s] or restrain[s] the

23 operation” of the statute “other than with respect to the application of such provisions to an

24

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1 individual alien.” There is support for this position in the Supreme Court’s Jennings v.

2 Rodriguez opinion: “Section 1252(f)(1) thus ‘prohibits federal courts from granting classwide

3 injunctive relief against the operation of §§ 1221-123[2].’” 130 S.Ct. at 851; quoting Reno v.

4 AAADC, 525 U.S. 471, 481 (1999).

5

Plaintiffs respond by citing to Califano v. Yamasaki, 442 U.S. 682 (1979), where the

6 Supreme Court found (in regard to a different statutory scheme) that language authorizing a suit

7 by “[any] individual” did not foreclose the availability of classwide relief. The Califano Court

8 ruled that “[w]here the district court has jurisdiction over the claim of each individual member of

9 the class, [FRCP] 23 provides a procedure by which the court may exercise that jurisdiction over

10 the various individual claims in a single proceeding;” i.e., a class action. Id. at 700.

11

Upon remand from the Jennings Court, the Ninth Circuit appears to be in agreement that

12 Califano is applicable to a § 1252(f)(1) analysis.

13

[W]e have jurisdiction under 8 U.S.C. § 1252(f)(1)… All of the

individuals in the putative class are ‘individuals against whom

14

proceedings under such part have been initiated’ and are pursuing habeas

15

claims, albeit as a class, which nowhere appears affected by § 1252(f)(1).

16 Rodriguez v. Marin, 909 F.3d 252, 256-57 (9th Cir. 2018). The same is true here as regards the

17 Bond Hearing Class. Additionally, “it is especially significant that § 1252(f)(1) is silent as to a

18 prohibition on class actions when another subsection in the same provision expressly prohibits

19 class actions.” Arroyo v. U.S. Dept. of Homeland Security, No. 8:19-cv-00815-JGB-SHK at *10

20 (C.D. Cal. June 20, 2019)(citing 8 U.S.C. § 1252(e)(1(B). “Congress’s failure to prohibit class

21 actions for plaintiff already in removal proceedings is meaningful and intentional.” Id.

22

And there are further grounds upon which to base the Court’s authority to grant

23 injunctive relief to this class. Plaintiffs’ TAC invokes the Court’s habeas jurisdiction (Dkt. No.

24 130 at ¶ 8), and their briefing cites the Supreme Court’s holding in INS v. St. Cyr, 533 U.S. 289,

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1 310-14 (2001) that federal courts will not read a statute to restrict their power to grant habeas

2 relief unless Congress specifically and explicitly revokes the authority granted under the federal

3 habeas statute (28 U.S.C. § 2241) by name. This approach is endorsed by the Ninth Circuit: in

4 Rodriguez v. Marin, the Court similarly found that “Section 1252(f)(1) also does not bar the

5 habeas class action because it lacks a clear statement repealing the court’s habeas jurisdiction.”

6 909 F.3d 252, 256 (9th Cir. 2018).

7

The Government argues that the St. Cyr “clear statement” rule is inapplicable where (1)

8 individual habeas relief is still available and (2) there is no blanket ban on habeas jurisdiction

9 (i.e., the Court still has its power to grant habeas relief, just not habeas injunctive relief). But the

10 Second and Third Circuits have held that the clear statement rule applies even when a statute

11 does not bar all judicial review. Liu v. INS, 293 F.3d 36, 37 (2nd Cir. 2002)(clear statement still

12 required even where petitioner has other means – e.g., a petition for review – to raise the same

13 issues); cf. Chmakov v. Blackman, 266 F.3d 210, 215 (3rd Cir. 2001). As the Government has

14 noted, there is Sixth Circuit precedent specifically on this point:

15

[T]here is nothing in § 1252(f)(1) that suspends the writ of habeas corpus.

It is true that habeas is barred as to injunctive relief for class actions, but

16

there is nothing barring a class from seeking a traditional writ of habeas

17

corpus (which is distinct from injunctive relief

18 Hamama v. Homan, 912 F.3d 869, 879 (6th Cir. 2018)(emphasis in original). But this Court is

19 not compelled to follow the dictates of the Sixth Circuit (and, per the remand in Rodriguez v.

20 Marin, the Ninth Circuit still considers the issue of classwide injunctive relief to be an open

21 question). There is nothing in St. Cyr and nothing in applicable Ninth Circuit jurisprudence to

22 indicate that, absent a specific restriction, this Court is not authorized to exercise the full panoply

23 of its habeas powers, including its equitable powers to enjoin conduct found unconstitutional.

24

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1 On that basis, § 1252(f)(1) does not operate to bar the classwide injunctive relief sought by

2 Plaintiffs.

3

C. § 1252(e)(3)

4

The Government also challenges the Court’s jurisdiction. 8 U.S.C. § 1252(e)(3)

5 (“Challenges on Validity of the System”) provides that

6

[j]udicial review of determinations under section 1225(b) . . . and its

implementation is available in an action instituted in the United States

7

District Court for the District of Columbia, but shall be limited to

8

determinations of (i) whether such section, or any regulation issued to

implement such section, is constitutional.

9 The Government contends that Plaintiffs’ TAC represents the kind of “systemic

10 challenge to the constitutionality of 8 U.S.C. § 1225” which, pursuant to the mandate above, may

11 only properly be brought in the District of Columbia. (Dkt. No. 114, Defendants’ Motion to

12 Vacate at 17.)

13 This is not a persuasive position. Section 1252(e)(3) is included as part of a statute that is

14 addressed to “Judicial review of orders under section 235(b)(1)” (which in turn is concerned with

15 “Inspection of aliens arriving in the United States and certain other aliens who have not been

16 admitted or paroled”). As such, § 1252(e)(3) is addressed to challenges to the removal process

17 itself, not to detentions attendant upon that process. The Court is guided by the reasoning of the

18 Supreme Court in Jennings, which noted (in finding jurisdiction to consider challenges to the

19 detention process under §1225):

20 For present purposes, it is enough to note that respondents are not asking

21

for review of an order of removal; they are not challenging the decision to

detain them in the first place or to seek removal; and they are not even

22

challenging any part of the process by which their removability will be

23

determined.

24

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1 130 S.Ct. at 841. It is these types of claims to which § 1252(e)(3) is addressed; Plaintiffs’

2 challenge to the constitutionality of their detention is not subject to the strictures of that

3 provision.

4

The Court’s decision in this regard is further buttressed by the complete absence of any

5 mention of § 1252(e)(3) as a bar to jurisdiction in either Jennings or Rodriguez v. Marin. In a

6 case involving plaintiffs challenging their detention under § 1225(b), neither the Government,

7 the Supreme Court nor the Ninth Circuit saw fit to raise § 1252(e)(3) as an impediment to

8 consideration of the merits of the claims. This Court will follow suit and move on to a

9 consideration of the merits of Plaintiffs’ request to modify the present injunction in this matter.

10

II. The Preliminary Injunction

11

Neither side disputes that the injunction previously entered in this matter cannot remain

12 in effect in its current form. The Court retains an inherent authority to modify an existing

13 injunction on the basis of changed circumstance (including a change in the law). Sys. Fed. No.

14 91 v. Wright, 364 U.S. 642, 647 (1961). Defendants argue that the modification requested here

15 necessitates a finding that this is a “mandatory” injunction – one which “orders a responsible

16 party to take action” (Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873,

17 879 (9th Cir. 2009)) – and thus is subject to a higher standard of proof. The Court disagrees.

18 Even in its modified form, this remains a “prohibitory” injunction, one intended to preserve the

19 status quo (which, at this point, is represented both by the original preliminary injunction and by

20 the 50 years preceding this litigation during which EWI aliens have been considered entitled to

21 bond hearings to test the necessity of their detention) and seeking only to “prevent[] future

22 constitutional violations.” Hernandez v. Sessions, 872 F.3d 976, 998 (9th Cir. 2017).

23

24

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Case 2:18-cv-00928-MJP Document 149 Filed 07/02/19 Page 12 of 20

1

The Court analyzes the request for modification using traditional elements that must be

2 established prior to the issuance of injunctive relief:

3

1. Likelihood of success on the merits

4

2. Irreparable harm in the absence of the injunction

5

3. A balance of equities which favors the moving party

6

4. The existence of a public interest which favors the injunction

7 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

8

1. Likelihood of success on the merits

9

Backed by the AG’s findings that § 1225(b) mandates detention without bond for these

10 Plaintiffs, the Government cites to the jurisprudential maxim that “acts of Congress enjoy a

11 strong presumption of constitutionality.” Schwenk v. Hartford, 204 F.3d 1187, 1204 (9th Cir.

12 2000). Giving that maxim its due does not abrogate the Court’s authority under the habeas

13 statute to determine if these Plaintiffs are “in custody in violation of the Constitution.” 28 U.S.C.

14 § 2241(c)(3).

15

The Court previously utilized the Mathews balancing test to determine Plaintiffs’

16 likelihood of success on the merits and will do so again. The test examines and weighs:

17

First, the private interest that will be affected by the official action;

second, the risk of an erroneous deprivation of such interest through the

18

procedures used, and the probable value, if any, of additional or substitute

19

procedural safeguards; and finally, the Government’s interest, including

the function involved and the fiscal and administrative burdens that the

20

additional or substitute procedural requirement would entail.

21 Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

22

23

24

ORDER ON MOTIONS RE: PRELIMINARY INJUNCTION - 12

Case 2:18-cv-00928-MJP Document 149 Filed 07/02/19 Page 13 of 20

1

a. Private interest

2

The Supreme Court has definitively established the immigrant detainees’

3 constitutionally-protected interest in freedom from unnecessary incarceration. Zadvydas v.

4 Davis, 533 U.S. 678, 690 (2001). The Ninth Circuit has recognized that, in the area of

5 non-criminal detention of immigrants, “the private interest at issue here is ‘fundamental’:

6 freedom from imprisonment is at the ‘core of the liberty protected by the Due Process Clause.’”

7 Hernandez v. Sessions, 872 F.3d 976, 993 (9th Cir. 2017) (quoting Foucha v. Lousiana, 504 U.S.

8 71, 80 (1992)). The Ninth Circuit described the fundamental nature of that interest as “beyond

9 dispute.” Id.

10

The Government attempts to argue that Plaintiffs are essentially “excludable aliens,”

11 entitled only to the rights Congress sees fit to grant them. Shaughnessy v. United States ex rel.

12 Mezei, 345 U.S. 206, 212 (1982). The Court has already found that these Plaintiffs are not

13 “excludable” aliens with no inherent due process rights; nothing about the current posture of this

14 case has altered the validity of that analysis. (See Dkt. No. 110, Order Granting Preliminary

15 Injunction (“PI Order”) at 6.) Plaintiffs are “non-arriving aliens” who, having been apprehended

16 within the territorial boundaries of this county, are entitled to due process protections. United

17 States v. Raya-Vaca, 771 F.3d 1995, 1202 (9th Cir. 2014). Among those protections is a

18 longstanding prohibition against indefinite civil detention with no opportunity to test its

19 necessity. The Ninth Circuit has expressed “grave doubts that any statute that allows for

20 arbitrary prolonged detention without any process is constitutional.” Rodriguez v. Marin, 909

21 F.3d 252, 256. (9th Cir. 2018).

22

The Government points to cases like Zadvydas and Demore v. Hyung Joon Kim (538

23 U.S. 510 (2003)) – which upheld the reasonableness of six-month detention periods – to argue

24

ORDER ON MOTIONS RE: PRELIMINARY INJUNCTION - 13

Case 2:18-cv-00928-MJP Document 149 Filed 07/02/19 Page 14 of 20

1 that Plaintiffs are not likely to succeed on their request for a seven-day timeline on bond

2 hearings. But the length of time until hearing is not the issue currently before the Court2 as it

3 considers modification of the injunction already in place – the issue in this motion is whether or

4 not it is constitutional to have no bond hearing at all.

5

Further, the Government’s cases are distinguishable from the instant matter to the extent

6 that longer periods of detention were found appropriate. The aliens in Zadvydas were already

7 adjudicated removable and simply awaiting deportation, which is not the case with Plaintiffs.

8 Demore concerned a detention policy narrowly tailored to a subset of noncitizens who had

9 committed one of a specified list of crimes which made them risks upon release; Plaintiffs here

10 are subject to indefinite detention without regard for their criminal history or the fact that they

11 have been adjudged credibly fearful of returning to their homelands. The Demore Court relied

12 on a massive record of research and statistics demonstrating that the targeted subset of aliens

13 were categorically risks of flight and dangers to the community. 538 U.S. at 518-21. There is no

14 similar evidence in the instant case.

15

The Court finds that Plaintiffs have established a constitutionally-protected interest in

16 their liberty, a right to due process which includes a hearing before a neutral decisionmaker to

17 assess the necessity of their detention, and a likelihood of success on the merits of that issue.

18

Plaintiffs have also asserted a cause of action under the Administrative Procedures Act

19 (“APA”), alleging that the AG’s decision in Matter of M-S represents a revision to an existing

20 regulation in violation of the “notice and comment” requirement of the APA. 5 U.S.C.

21 § 553(b)-(d). Plaintiffs’ legal theory is that the AG’s finding that immigrants detained awaiting

22 an asylum determination are not entitled to bond hearings under § 1225(b) represents

23 24 2 To the extent it is, the Court has already ruled. See PI Order at 13-14.

ORDER ON MOTIONS RE: PRELIMINARY INJUNCTION - 14

Case 2:18-cv-00928-MJP Document 149 Filed 07/02/19 Page 15 of 20

1 “rulemaking;” i.e., a change to an existing rule or regulation. The APA requires, prior to

2 amending or repealing an existing rule, notice of the proposed change in the Federal Register

3 with a 30-day period prior to implementation of the revision or withdrawal and an opportunity

4 for comment by interested persons. Id. The Court does not find a likelihood of success on the

5 merits of Plaintiffs’ APA claim as it regards this issue.

6

The rules which Plaintiffs contend are being repealed are 8 C.F.R. §§ 1236.1(d) and

7 1003.19(h)(2)(i). § 1236.1(d) (“Appeals from custody decisions”) state:

8

(1) Application to immigration judge. After an initial custody

determination by the district director, including the setting of a bond, the

9

respondent may, at any time before an order under 8 CFR part 1240

becomes final, request amelioration of the conditions under which he or

10

she may be released. Prior to such final order, and except as otherwise

provided in this chapter, the immigration judge is authorized to exercise

11

the authority in section 236 of the Act… to detain the alien in custody,

release the alien, and determine the amount of bond, if any, under which

12

the respondent may be released, as provided in § 1003.19 of this chapter.

13 (Emphasis supplied.) § 1003.19 is an adjunct regulation to § 1236.1, covering “[c]ustody and

14 bond determinations made by the service pursuant to 8 C.F.R. part 1236.”

15

These regulations concern the authority of immigration officials and judges under

16 “section 236 of the Act,” which is also known as § 1226 of the INA. Plaintiffs’ asylum

17 applications are being processed (and they are being detained) pursuant to section 235 (or

18 § 1225) of the Act, and the regulation which they allege is being revised or repealed in violation

19 of the APA is inapplicable to them. Under these circumstances, the Court cannot find that they

20 have a likelihood of succeeding on the merits of that particular claim.

21

b. Risk of deprivation/value of procedural safeguards

22

Quoting from the Court’s previous findings:

23

24

ORDER ON MOTIONS RE: PRELIMINARY INJUNCTION - 15

Case 2:18-cv-00928-MJP Document 149 Filed 07/02/19 Page 16 of 20

1

The Hernandez court, conducting a similar Mathews analysis in the

context of immigrant detention, described the [risk of deprivation of a

2

bond hearing] as follows: “[T]here is a significant risk that the individual

3

will be needlessly deprived of the fundamental right to liberty.” 872 F.3d

at 993.

4 (Dkt. No. 110, PI Order at 12.) That risk remains as valid today as it was then.

5 The “value of the procedural safeguard” of a bond hearing is self-evident. To begin with,

6 immigration detention can be upheld only where “a special justification . . . outweighs the

7 ‘individuals’ constitutionally protected interest in avoiding physical restraint.’” Zadvydas, 553

8 U.S. at 690 (quoting Kansas v. Hendricks, 521 U.S. 346, 356 (1997)); see also United States v.

9 Salerno, 481 U.S. 739 747 (1987). The purposes of immigration detention are simple and

10 straightforward: to facilitate removal (if removal is deemed justified), and to prevent flight and

11 harm to the community. Id. at 690-91; Hernandez, 872 F.3d at 990. Detention that does not

12 serve those legitimate ends violates due process; bond hearings are the most efficacious mean of

13 insuring those purposes are being served.

14 c. The Government’s interest

15 To demonstrate their interest, Defendants cite their commitment to “the efficient

16 administration of the immigration laws at the border.” (Dkt. No. 139, Defendants’ Response at

17 24.) The Court has already indicated its disinclination to “exalt expense over fundamental rights

18 to liberty” (PI Order at 15), quoting the Ninth Circuit in Hernandez:

19 [T]he government has no legitimate interest in detaining individuals who

20

have been determined not to be a danger to the community and whose

appearance at future immigration proceedings can be reasonably

21

ensured . . .

22 872 F.3d at 990.

23

24

ORDER ON MOTIONS RE: PRELIMINARY INJUNCTION - 16

Case 2:18-cv-00928-MJP Document 149 Filed 07/02/19 Page 17 of 20

1

The Court finds a private interest held by this class that is being affected by

2 governmental action, a substantial risk of its erroneous deprivation under the AG’s interpretation

3 of the INA, and probable value in according Plaintiffs their right to a bond hearing, none of

4 which are outweighed by the Government’s interest in proceeding in accordance with the AG’s

5 dictates. While the same cannot be said for Plaintiffs’ APA claim, the Court finds that the class

6 has demonstrated a likelihood of success on their constitutional challenge to the complete

7 elimination of bond hearings for its members.

8

2. Irreparable harm

9

As the Court has previously found, “any deprivation of constitutional rights

10 ‘unquestionably constitutes irreparable injury.’” Hernandez, id. at 995 (citation omitted). All

11 the harms attendant upon their prolonged detention cited in the original ruling on Plaintiffs’

12 request for injunctive relief remain applicable here – substandard physical conditions, low

13 standards of medical care, lack of access to attorneys and evidence as Plaintiffs prepare their

14 cases, separation from their families, and re-traumatization of a population already found to have

15 legitimate circumstances of victimization.

16

Finally, there is the incalculable harm to those class members who, facing

an uncertain length of time in custody and an arduous and obstacle-strewn

17

road to establishing . . . []their right to asylum[], simply abandon their

18

claim and accept deportation back to countries where, as it has already

been established to the Government’s satisfaction, they face persecution,

19

torture, and possibly death.

20 PI Order at 17.

21

The Government’s arguments to the contrary lack substance. Defendants cite to the

22 “speculative” nature of any possible harm cited by the named Plaintiffs – even if that were true

23 (see the Court’s findings supra regarding the Government’s “at this time…” declaration),

24

ORDER ON MOTIONS RE: PRELIMINARY INJUNCTION - 17

Case 2:18-cv-00928-MJP Document 149 Filed 07/02/19 Page 18 of 20

1 Plaintiffs Orantes and Vasquez represent a class of persons who are currently in custody and for

2 whom detention without bond is not a theoretical concept. Defendants again cite to the bond

3 hearing class’s access to individual habeas petitions to challenge their detention – the Court has

4 already commented on the “grim irony” of the members of this class being forced to endure

5 further delays while they contest the constitutionality of their detention.

6

The Court finds that Plaintiffs have succeeded in demonstrating “irreparable harm” in the

7 absence of injunctive relief.

8

3. Equities/public interest

9

When the Government is a party to the case, the public interest and balance of equities

10 factors “merge.” Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). The

11 equities favoring Plaintiffs continue to be: The deprivation of their constitutional rights, the

12 physical/emotional/psychological damage engendered by their indefinite detention, the

13 separation from their families, and the negative impact on their ability to properly prepare their

14 cases.

15

On its side, the Government cites “the efficient administration of the immigration laws,”

16 which has been addressed supra. The words of the Ninth Circuit in Hernandez continue to ring

17 true:

18

“Faced with such a conflict between financial concerns and preventable

human suffering, we have little difficulty concluding that the balance of

19

hardships tips decidedly in plaintiffs’ favor.”

20 872 F.3d at 996 (quoting Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983)).
21 Defendants also caution the Court against creating a “Jennings subset” – what they
22 characterize as an “exception” to the Jennings holding that detention is statutorily required under
23 § 1225. But Jennings made no finding regarding the constitutionality of § 1225 and the case
24

ORDER ON MOTIONS RE: PRELIMINARY INJUNCTION - 18

Case 2:18-cv-00928-MJP Document 149 Filed 07/02/19 Page 19 of 20

1 does not stand for the proposition that indefinite mandatory detention while awaiting

2 determination of an asylum application is constitutionally permissible. The Court sees nothing in

3 the Supreme Court’s ruling in Jennings that favors the Government’s position in this litigation.

4

The Ninth Circuit has previously found that “it is always in the public interest to prevent

5 the violation of a party’s constitutional rights.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th

6 Cir. 2012). The Court finds that the balance of equities and the public interest favor granting

7 injunctive relief to Plaintiffs.

8

Conclusion

9

The Plaintiffs of the Bond Hearing Class have succeeded in establishing all the requisite

10 elements for granting their request for modified injunctive relief: a change in circumstances, a

11 continuing likelihood of success on the merits on at least one of their claims, irreparable harm if

12 their relief is not granted, a balance of equities in their favor, and a benefit to the public interest

13 if granted the relief they seek. Accordingly, the Court GRANTS the requested relief.

14

Anticipating that an appeal will swiftly follow the publication of this order, the Court

15 divides the modified injunction into two parts to facilitate appellate review:

16

PART A: Affirming its previously-entered injunctive relief requiring Defendant

17 Executive Office for Immigration Review to:

18

1. Conduct bond hearings within seven days of a bond hearing request by a class

19

member, and release any class member whose detention time exceeds that limit;

20

2. Place the burden of proof on Defendant Department of Homeland Security in those

21

bond hearings to demonstrate why the class member should not be released on bond,

22

parole, or other conditions;

23

24

ORDER ON MOTIONS RE: PRELIMINARY INJUNCTION - 19

Case 2:18-cv-00928-MJP Document 149 Filed 07/02/19 Page 20 of 20

1

3. Record the bond hearing and produce the recording or verbatim transcript of the

2

hearing upon appeal; and

3

4. Produce a written decision with particularized determinations of individualized

4

findings at the conclusion of the bond hearing.

5

PART B: Modifying the injunction to find that the statutory prohibition at Immigration

6 and Nationality Act § 235(b)(1)(B)(ii) against releasing on bond persons found to have a credible

7 fear and awaiting a determination of their asylum application violates the U.S. Constitution; the

8 Bond Hearing Class is constitutionally entitled to a bond hearing before a neutral decisionmaker

9 (under the conditions enumerated above) pending resolution of their asylum applications.

10

The preliminary injunction, as modified, will enter into effect 14 days from the date of

11 this order.

12

13

The clerk is ordered to provide copies of this order to all counsel.

14

Dated: July 2, 2019.

15

A

16

Marsha J. Pechman

17

United States Senior District Judge

18

19

20

21

22

23

24

ORDER ON MOTIONS RE: PRELIMINARY INJUNCTION - 20

 
 Padilla v. Immigration and Customs Enforcement, --- F.3d ---- (2020) 2020 WL 1482393, 20 Cal. Daily Op. Serv. 2783

2020 WL 1482393 United States Court of Appeals, Ninth Circuit.
Yolany PADILLA; Ibis Guzman; Blanca Orantes; Baltazar Vasquez, Plaintiffs-Appellees, v. IMMIGRATION AND CUSTOMS
ENFORCEMENT; U.S. Department of Homeland Security; U.S. Customs and Border Protection; United States Citizenship and Immigration Services; Matthew Albence, Acting Director of ICE; Chad Wolf, Acting Secretary of DHS; Mark Morgan, Acting Commissioner of CBP; Ken
Cuccinelli, Senior Official Performing the Duties of the Director of USCIS; Marc J. Moore, Seattle Field Office Director, ICE; Executive Office for Immigration Review; William P. Barr, Attorney
General, United States Attorney General; Lowell Clark, Warden of the Northwest Detention Center in Tacoma, Washington; Charles Ingram, Warden
of the Federal Detention Center in SeaTac, Washington; David Shinn, Warden; James Janecka, Warden of the Adelanto Detention
Facility, Defendants-Appellants, and
U.S. Department of Health & Human Services, FKA Department of Social Services; Office of Refugee Resettlement; Alex M. Azar II, Secretary of HHS; Scott Lloyd, Director of ORR; Matthew Albence, Acting Deputy Director of ICE; John P. Sanders, Acting Commissioner of CBP; Elizabeth Godfrey, Acting Director of Seattle Field Office,
ICE, Defendants.
No. 19-35565 |
Argued and Submitted October 22, 2019 San Francisco, California | Filed March 27, 2020
Synopsis Background: Detained asylum applicants brought putative class action against United States Immigration and Customs Enforcement (ICE), Department of Homeland Security (DHS), and Executive Office for Immigration Review (EOIR), challenging legality of government’s alleged policy and practice of separating families seeking asylum and delaying credible fear interviews and bond hearings for detained asylum seekers. The United States District Court for the Western District of Washington, Marsha J. Pechman, Senior District

Judge, granted applicants’ motion for preliminary injunction, 379 F.Supp.3d 1170, and granted applicants’ motion to modify injunction, 387 F.Supp.3d 1219. Government filed interlocutory appeal.
Holdings: The Court of Appeals, Thomas, Chief Judge, held that:
district court did not abuse its discretion in concluding that applicants were likely to succeed on their due process claim;
district court did not abuse its discretion in concluding that applicants would suffer irreparable harm;
district court did not abuse its discretion in determining that balance of equities and public interest favored applicants;
there was insufficient evidence to justify district court’s requirement that EOIR provide credible fear interviews and bond hearings within seven days;
statute barring any court other than Supreme Court from enjoining or restraining operation of Immigration and Nationality Act (INA) other than with respect to individual aliens did not deprive district court of authority to issue classwide injunctive relief; and
district court did not abuse its discretion in granting preliminary injunction with respect to nationwide class.
Affirmed in part, vacated in part, and remanded.
Bade, Circuit Judge, dissented and filed opinion.
Procedural Posture(s): Interlocutory Appeal; Motion for Preliminary Injunction.
Attorneys and Law Firms
Lauren C. Bingham (argued), Senior Litigation Counsel; Archith Ramkumar, Trial Attorney; Sarah S. Wilson, Assistant United States Attorney; Erez Reuveni, Assistant Director; William C. Peachey, Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.
Matt Adams (argued), Leila Kang, and Aaron Korthuis, Northwest Immigrant Rights Project, Seattle, Washington; Trina A. Realmuto and Kristin

Padilla v. Immigration and Customs Enforcement, --- F.3d ---- (2020) 2020 WL 1482393, 20 Cal. Daily Op. Serv. 2783

Macleod-Ball, American Immigration Council, Brookline, Massachusetts; Judy Rabinovitz, Michael Tan, and Anand Balakrishnan, ACLU Immigrants’ Rights Project New York, New York; for Plaintiffs-Appellees.
Alan Schoenfeld and Lori A. Martin, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York; Rebecca Arriaga Herche, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Jamil Aslam, Wilmer Cutler Pickering Hale and Dorr LLP, Los Angeles, California; for Amici Curiae Retired Immigration Judges and Board of Immigration Appeals Members.
Erin K. Earl, Julie Wilson-McNerney, and Anna Mouw Thompson, Perkins Coie LLP, Seattle, Washington, for Amici Curiae National Association of Criminal Defense Lawyers, Pretrial Justice Institute, and Center for Legal and Evidence-Based Practices.
Robert W. Ferguson, Attorney General; Andrew R. W. Hughes, Kristin Beneski, and Brendan Selby, Assistant Attorneys General; Office of the Attorney General, Seattle, Washington; Xavier Becerra, Attorney General, Sacramento, California; Phil Weiser, Attorney General, Denver, Colorado; William Tong, Attorney General, Hartford, Connecticut; Kathleen Jennings, Attorney General, Wilmington, Delaware; Karl A. Racine, Attorney General, Washington, D.C.; Clare E. Connors, Attorney General, Honolulu, Hawaii; Kwame Raoul, Attorney General, Chicago, Illinois; Brian E. Frosh, Attorney General, Baltimore, Maryland; Maura Healey, Attorney General, Boston, Massachusetts; Dana Nessel, Attorney General, Lansing, Michigan; Keith Ellison, Attorney General, St. Paul, Minnesota; Aaron D. Ford, Attorney General, Carson City, Nevada; Gurbir S. Grewal, Attorney General; Glenn J. Moramarco, Assistant Attorney General; Marie Soueid, Deputy Attorney General; Office of the Attorney General, Trenton, New Jersey; Hector Balderas, Attorney General, Santa Fe, New Mexico; Peter F. Neronha, Attorney General, Providence, Rhode Island; Ellen F. Rosenblum, Attorney General, Salem, Oregon; Thomas J. Donovan Jr., Attorney General, Montpelier, Vermont; Mark R. Herring, Attorney General, Richmond, Virginia; for Amici Curiae Washington, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Virginia.
Appeal from the United States District Court for the Western District of Washington, Marsha J. Pechman, District Judge, Presiding, D.C. No. 2:18-cv-00928-MJP
Before: Sidney R. Thomas, Chief Judge, and Michael Daly Hawkins and Bridget S. Bade, Circuit Judges.

Dissent by Judge Bade
OPINION
THOMAS, Chief Judge:
In this interlocutory appeal, we consider whether the district court abused its discretion in granting a preliminary injunction ordering the United States to provide bond hearings to a class of noncitizens who were detained after entering the United States and were found by an asylum officer to have a credible fear of persecution. We conclude that it did not, and we affirm the order of the district court, in part, and direct the district court to reconsider some of the technical aspects of its order.
I
Plaintiffs are a class of noncitizens detained pursuant to 8 U.S.C. § 1225(b). Section 1225(b) provides for “expedited removal” of “arriving” noncitizens at ports-of-entry and inadmissible noncitizens apprehended within the United States who cannot prove that they have been in the United States for more than two years. See Designating Aliens for Expedited Removal, 84 Fed. Reg. 35,409-01, 35,413–14 (July 23, 2019);1 see also 8 U.S.C. § 1225(b)(1)(A)(iii)(II). Plaintiffs are in this latter category.
DHS removes noncitizens eligible for expedited removal “without further hearing or review,” subject to only one exception. 8 U.S.C. § 1225(b)(1)(A)(i). If the noncitizen indicates an intent to apply for asylum or a fear of persecution, DHS must refer the noncitizen for an interview with an asylum officer. Id. § 1225(b)(1)(A)(ii); 8 C.F.R. § 208.30. If the asylum officer determines that the noncitizen’s fear of persecution is credible, the noncitizen is referred to full removal proceedings, in which the noncitizen may apply for asylum or other forms of relief from removal. See 8 U.S.C. § 1225(b)(1)(B)(ii); 8 C.F.R. §§ 208.30(f), 1003.42(f). Subject to review, if the asylum officer finds no credible fear of persecution, the noncitizen will be removed. 8 U.S.C. §

Padilla v. Immigration and Customs Enforcement, --- F.3d ---- (2020) 2020 WL 1482393, 20 Cal. Daily Op. Serv. 2783

1225(b)(1)(B)(iii). A supervisor reviews the asylum officer’s credible fear determination, 8 C.F.R. §§ 208.30(e)(7), 235.3(b)(2), (b)(7), and a noncitizen may also request de novo review by an immigration judge, 8 U.S.C. § 1225(b)(1)(B)(iii)(III); 8 C.F.R. § 1003.42.
*3 If the asylum officer determines at the time of the credible fear interview that the noncitizen has a credible fear of persecution, the noncitizen must “be detained for further consideration of the application for asylum.” 8 U.S.C. § 1225(b)(1)(B)(ii). If the asylum officer determines that the noncitizen does not have a credible fear of persecution, the statute requires that the noncitizen be detained during the review process “pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.” Id. § 1225(b)(1)(B)(iii)(IV).
Until July 2019, noncitizens like plaintiffs, who were apprehended within the United States and initially subject to expedited removal, but who established credible fear and were transferred to full removal proceedings, were considered to be entitled to bond hearings before an immigration judge, as noncitizens in full removal proceedings usually are. See Matter of X-K-, 23 I. & N. Dec. 731, 731 (BIA 2005).
In June 2018, Yolany Padilla, Ibis Guzman, and Blanca Orantes filed a class action complaint challenging the government’s alleged policy and practice of separating families seeking asylum and delaying credible fear interviews and bond hearings for detained asylum seekers. Plaintiffs moved for class certification and for a preliminary injunction requiring “timely bond hearings that comport with due process.”
The district court first certified a nationwide Bond Hearing Class consisting of:
All detained asylum seekers who entered the United States without inspection, were initially subject to expedited removal proceedings under 8 U.S.C. § 1225(b), were determined to have a credible fear of persecution, but are not provided a bond hearing with a verbatim transcript or recording of the hearing within seven days of requesting a bond hearing.
Padilla v. U.S. Immigr. & Customs Enf’t, No. C18-928

MJP, 2019 WL 1056466, at *1 (W.D. Wash. Mar. 6, 2019).2
The district court also granted the motion for a preliminary injunction, implementing certain procedural requirements for class members’ bond hearings. Specifically, the preliminary injunction required the Executive Office for Immigration Review (“EOIR”) to conduct bond hearings within seven days of a class member’s request and release any member whose detention without a hearing exceeds that limit. Padilla v. U.S. Immigr. & Customs Enf’t, 379 F. Supp. 3d 1170, 1172 (W.D. Wash. 2019). The injunction also provided that in those hearings, the burden of proof must be placed on DHS to demonstrate why the class member should not be released on bond, parole, or other conditions. Id. It required the government to record the bond hearings and produce the recordings or verbatim transcripts upon appeal. Finally, the injunction required the government to produce a written decision with particularized findings at the conclusion of each bond hearing. Id.
Shortly after this order, the Attorney General (“AG”) overruled Matter of X-K-, which established that noncitizens similarly situated to the members of the bond hearing class are entitled to bond hearings, as “wrongly decided.” Matter of M-S-, 27 I. & N. Dec. 509, 510 (A.G. 2019). The AG interpreted 8 U.S.C. § 1225(b)(1)(B)(ii) to require mandatory detention without bond hearings for asylum seekers who were initially subject to expedited removal but later transferred to full removal proceedings after establishing a credible fear. See Matter of M-S-, 27 I. & N. Dec. at 515–17. Under Matter of M-S-, the only possibility for release available to noncitizens in this category is a discretionary grant of parole by DHS for “urgent humanitarian reasons or significant public benefit” pursuant to 8 U.S.C. § 1182(d)(5). Id. at 516–17. The AG delayed implementation of Matter of M-S- for 90 days in light of its “significant impact ... on detention operations.” See id. at 519 n.8.
*4 Plaintiffs then filed a third amended complaint challenging Matter of M-S- on due process grounds and moved to modify the injunction.3 Defendants moved to vacate the injunction.
The district court modified the previously issued preliminary injunction, dividing it into two parts “to facilitate appellate review.” Padilla v. U.S. Immigr. & Customs Enf’t, 387 F. Supp. 3d 1219, 1222 (W.D. Wash. 2019). In Part A, the court reaffirmed its previously entered injunctive relief. Id. In Part B, the court essentially maintained the status quo before Matter of M-S-. Id. The court:

Padilla v. Immigration and Customs Enforcement, --- F.3d ---- (2020) 2020 WL 1482393, 20 Cal. Daily Op. Serv. 2783

[m]odif[ied] the injunction to find that the statutory prohibition at [§ 1225(b)(1)(B)(ii)] against releasing on bond persons found to have a credible fear and awaiting a determination of their asylum application violates the U.S. Constitution; the Bond Hearing Class is constitutionally entitled to a bond hearing before a neutral decisionmaker (under the conditions enumerated [in Part A] ) pending resolution of their asylum applications.
Id.
The government timely appealed both orders, moved for an administrative stay of the injunction, and a stay pending appeal. A motions panel of this court denied the government’s request to stay Part B of the injunction, in which the district court held that class members are constitutionally entitled to bond hearings, but granted the request to stay Part A, which imposed procedural requirements on those bond hearings.4
II
We have jurisdiction of this interlocutory appeal under 28 U.S.C. § 1292(a)(1). “We review the district court’s decision to grant or deny a preliminary injunction for abuse of discretion.” Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam) (citation omitted). “Our review is limited and deferential.” Id. The district court abuses its discretion when it makes an error of law. Id. “We review the district court’s legal conclusions de novo, [and] the factual findings underlying its decision for clear error.” K.W. ex rel. D.W. v. Armstrong, 789 F.3d 962, 969 (9th Cir. 2015) (citation omitted). “We do not ‘determine the ultimate merits,’ but rather ‘determine only whether the district court correctly distilled the applicable rules of law and exercised permissible discretion in applying those rules to the facts at hand.’ ” Saravia v. Sessions, 905 F.3d 1137, 1141–42 (9th Cir. 2018) (quoting Fyock v. Sunnyvale, 779 F.3d 991, 995 (9th Cir. 2015)).
We also review the scope of the preliminary injunction, such as its nationwide effect, for abuse of discretion.

California v. Azar, 911 F.3d 558, 568 (9th Cir. 2018), cert. denied sub nom. Little Sisters of the Poor Jeanne Jugan Residence v. California, ––– U.S. ––––, 139 S. Ct. 2716, 204 L.Ed.2d 1111 (2019). “We review de novo the existence of the district court’s jurisdiction.” Rodriguez v. Cty. of Los Angeles, 891 F.3d 776, 790 (9th Cir. 2018).
III
*5 “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Where the government is a party to a case in which a preliminary injunction is sought, the balance of the equities and public interest factors merge. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). After consideration of the arguments presented by both parties and several amici curiae and thorough review of the record, we conclude that the district court did not abuse its discretion in issuing Part B of the preliminary injunction and ordering that plaintiffs receive bond hearings; however, because the record is insufficient to support Part A of the preliminary injunction, we remand for further findings and reconsideration with respect to the particular process due to plaintiffs. On remand, the district court must further develop the factual record and revisit the scope of injunctive relief.
A
1
The Due Process Clause of the Fifth Amendment forbids the government from “depriv[ing]” any “person ... of ... liberty ... without due process of law.” The Supreme Court has made clear that all persons in the United States—regardless of their citizenship status, means or legality of entry, or length of stay—are entitled to the protections of the Due Process Clause. See, e.g., Zadvydas

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v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (although “certain constitutional protections ... are unavailable to aliens outside of our geographic borders ... once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent”); see also United States v. Raya-Vaca, 771 F.3d 1195, 1202–03 (9th Cir. 2014) (observing that the “Supreme Court has categorically declared that once an individual has entered the United States, he is entitled to the protection of the Due Process Clause” and that “[e]ven an alien who has run some fifty yards into the United States has entered the country”); Kim Ho Ma v. Ashcroft, 257 F.3d 1095, 1108 (9th Cir. 2001) (“[O]nce an alien has ‘entered’ U.S. territory, legally or illegally, he or she has constitutional rights, including Fifth Amendment rights.”).
“Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). “Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491. Under the Due Process Clause, a person must be afforded adequate notice and hearing before being deprived of liberty. See Mathews, 424 U.S. at 333, 96 S.Ct. 893. “In the context of immigration detention, it is well-settled that ‘due process requires adequate procedural protections to ensure that the government’s asserted justification for physical confinement outweighs the individual’s constitutionally protected interest in avoiding physical restraint.’ ” Hernandez v. Sessions, 872 F.3d 976, 990 (9th Cir. 2017) (quoting Singh v. Holder, 638 F.3d 1196, 1203 (9th Cir. 2011)).
The Supreme Court has held repeatedly that non-punitive detention violates the Constitution unless it is strictly limited, which typically means that the detention must be accompanied by a prompt individualized hearing before a neutral decisionmaker to ensure that the imprisonment serves the government’s legitimate goals. See, e.g., United States v. Salerno, 481 U.S. 739, 750–51, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (pretrial detention of arrestees constitutional where statute provides for “extensive safeguards,” including a “full-blown adversary hearing,” in which the government must “provide[ ] by clear and convincing evidence that an arrestee presents an identified and articulable threat to an individual or the community”); Foucha v. Louisiana, 504 U.S. 71, 79, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) (individual entitled to

“constitutionally adequate procedures to establish the grounds for his confinement”); Kansas v. Hendricks, 521 U.S. 346, 360, 364, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (civil commitment statute that provided for confinement of “only a narrow class of particularly dangerous individuals, and then only after meeting the strictest procedural standards,” did not violate due process). Indeed, the Supreme Court has required individualized hearings for far lesser interests. See Zadvydas, 533 U.S. at 692, 121 S.Ct. 2491 (criticizing administrative custody reviews and noting “[t]he Constitution demands greater procedural protection even for property”); Goldberg v. Kelly, 397 U.S. 254, 268, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).
*6 Immigration detention, like all non-punitive detention, violates the Due Process Clause unless “a special justification ... outweighs the ‘individual’s constitutionally protected interest in avoiding physical restraint.’ ” Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491 (quoting Kansas v. Hendricks, 521 U.S. at 356, 117 S.Ct. 2072). Although “[t]he government has legitimate interests in protecting the public and in ensuring that non-citizens in removal proceedings appear for hearings, any detention incidental to removal must ‘bear[ ] [a] reasonable relation to [its] purpose.’ ” Hernandez, 872 F.3d at 990 (quoting Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491).
“[G]iven the substantial liberty interests at stake,” Singh, 638 F.3d at 1200, courts have repeatedly affirmed the importance of providing detained noncitizens individualized hearings before neutral decisionmakers. See Hernandez, 872 F.3d at 990 (requiring “adequate procedural protections to ensure that the government’s asserted justification for physical confinement outweighs the individual’s constitutionally protected interest in avoiding physical restraint” (quoting Singh, 638 F.3d at 1203)); Casas-Castrillon v. DHS, 535 F.3d 942, 950 (9th Cir. 2008) (individuals subjected to prolonged detention pending judicial review of their removal orders are entitled to a bond hearing and an “individualized determination as to the necessity of [their] detention”); see also Jennings v. Rodriguez, ––– U.S. ––––, 138 S. Ct. 830, 862, 869, 200 L.Ed.2d 122 (2018) (Breyer, J., dissenting) (reviewing Supreme Court caselaw, which “almost always has suggested” that bail proceedings for noncitizens are necessary and that “[t]he Due Process Clause foresees bail eligibility as part of ‘due process’ ”); Salerno, 481 U.S. at 746, 107 S.Ct. 2095 (“When government action depriving a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner.”).
Thus, we conclude that the district court did not abuse its

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discretion in applying Mathews and concluding that the plaintiffs were likely to succeed on their claim that they are constitutionally entitled to individualized bond hearings before a neutral decisionmaker.
2
The Supreme Court’s decisions in Zadvydas and Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), are not to the contrary. In Zadvydas, the two petitioners were in a unique situation: they had been adjudicated removable and were being detained ostensibly to enable their deportation; however, their detention lasted longer than the usual 90-day removal period because no country would accept them. Zadvydas, 533 U.S. at 683–87, 121 S.Ct. 2491. The Court avoided the constitutional question presented by potentially indefinite detention by construing the statute, under which detention was mandatory for the 90-day removal period and then discretionary, as limiting detention to a period “reasonably necessary” to effectuate removal. See id. at 689, 121 S.Ct. 2491. In other words, the Court construed the statute in such a way as to ensure that detention pursuant to it was reasonably limited to its narrow purpose. See id.
In Demore, the Supreme Court held constitutional the detention of a noncitizen, who had conceded that he was deportable, pursuant to a statute that imposed detention without bond on a subset of noncitizens deportable for having committed enumerated crimes. See 538 U.S. at 526–28, 531, 123 S.Ct. 1708; see also 8 U.S.C. § 1226(c). The Court held that this “narrow” detention policy “during the limited period” necessary to arrange for removal was reasonably related to the government’s purpose of effectuating removal and protecting public safety for reasons that do not apply here. Demore, 538 U.S. at 526–28, 123 S.Ct. 1708; see also Jennings, 138 S. Ct. at 869 (Breyer, J., dissenting) (describing Demore as “a deviation from the history and tradition of bail and alien detention”). In particular, the Court in Demore placed great weight on congressional findings that the particular individuals subject to this detention policy presented a heightened risk of flight and danger to the community. Demore, 538 U.S. at 518–20, 123 S.Ct. 1708. The Court also emphasized that the periods of detention at issue were typically very short—an average of 47 days and a median of 30 days in approximately 85 percent of cases, and an average of four months and a slightly shorter median time in the remaining 15 percent of cases. See id. at 529–30, 123 S.Ct. 1708.5 Further, the Court

observed, these statistics did not include the “many” cases where a noncitizen was never subject to mandatory detention under the statute because his or her removal proceedings were completed while he or she served time for the underlying conviction. Id. at 529, 123 S.Ct. 1708.
*7 Here, in contrast, the government presented no evidence that Congress considered plaintiffs to present a particular risk of flight or danger—indeed, individuals in the same position as class members have been receiving bond hearings under Matter of X-K- for years as well as for many years before Matter of X-K- was decided. See 23 I. & N. Dec. at 731. Moreover, every plaintiff here will necessarily be subject to mandatory detention, and the duration of that detention is not similarly “limited.” See Demore, 538 U.S. at 531, 123 S.Ct. 1708. Indeed, the record here suggests that, based on statistics from the years 2010 through early 2019, plaintiffs may expect to be detained for anywhere from six months to over-a-year while their applications for asylum or protection are fully adjudicated. This is far longer than the periods at issue in Demore or Zadvydas.
3
The government argues that such prolonged detention without a bond hearing is nonetheless constitutional because the government may release certain noncitizens on parole pursuant to 8 U.S.C. § 1182(d)(5)(A). See Matter of M-S-, 27 I. & N. Dec. at 519. By statute, however, DHS may parole noncitizens “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R. § 212.5 (parole is “generally [ ] justified only on a case-by-case basis for ‘urgent humanitarian reasons’ or ‘significant public benefit,’ provided the aliens present neither a security risk nor a risk of absconding”). Moreover, parole decisions are solely in the discretion of the Secretary of DHS and are not judicially reviewable, 8 U.S.C. § 1252(a)(2)(B)(ii),6 although individuals may seek a reconsideration based on changed circumstances, 8 C.F.R. § 212.5. The “term of parole expires ‘when the purposes of such parole ... have been served.’ ” Matter of M-S-, 27 I. & N. Dec. at 516 (noting limited circumstances under which parole may be granted by statute (quoting 8 U.S.C. § 1182(d)(5)(A))). By its terms, therefore, the parole process does not test the necessity of detention; it contains no mechanisms for ensuring that a noncitizen will be released from detention if his or her detention does not “bear[ ] [a] reasonable relation,” Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491, to the

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government’s “legitimate interests in protecting the public [or] in ensuring that non-citizens in removal proceedings appear for hearings,” Hernandez, 872 F.3d at 990.
The government urges us to consider, in the first instance, interim parole guidance issued in the wake of the preliminary injunction; however, this guidance is consistent with the statute and regulations and provides no additional procedural protections. To be considered for parole under the interim guidance, a noncitizen must first “satisfy” an officer that he or she is not a security or flight risk, at which point the officer may order release on parole for “urgent humanitarian reasons” or if detention is not in the public interest. Detention “may not be in the public interest ... where, in light of available detention resources, detention of the subject alien would limit the ability of ICE to detain another alien whose release may pose a greater risk of flight or danger to the community.” Under this guidance, ICE officers make parole determinations by checking one of five boxes on a form that requires no factual findings, no specific explanation, and no evidence of deliberation. Indeed, one of the checkboxes corresponds to five possible reasons for denying parole, without space to indicate which applies in a particular case.
*8 In short, parole review is nothing like the “full-blown adversary hearing” that the Supreme Court has found adequate to justify civil confinement, see, e.g., Salerno, 481 U.S. at 750–51, 107 S.Ct. 2095, and it is “not sufficient to overcome the constitutional concerns raised by prolonged mandatory detention,” Rodriguez v. Robbins, 715 F.3d 1127, 1144 (9th Cir. 2013); see also Zadvydas, 533 U.S. at 692, 121 S.Ct. 2491 (suggesting that “the Constitution may well preclude granting an administrative body the unreviewable authority to make determinations implicating fundamental rights” (citation and quotation marks omitted)); St. John v. McElroy, 917 F. Supp. 243, 251 (S.D.N.Y. 1996) (due process not satisfied by parole review; instead, it requires an “impartial adjudicator” to review detention since, “[d]ue to political and community pressure, the INS ... has every incentive to continue to detain”). The district court thus did not abuse its discretion in concluding that the parole process is inadequate to ensure that class members are only detained where a valid governmental purpose outweighs their fundamental liberty interest.
4
The government also insists that plaintiffs’ detention

without bond does not present due process concerns because each individual alien can file a habeas petition to challenge the legality of his or her detention. In essence, the government argues for transferring the work of bond hearings in the first instance from the immigration courts to the district courts. Judicial economy would not be well-served by such a system.
Moreover, the obligation to provide due process exists regardless of whether a detainee files a habeas petition. See Sopo v. U.S. Attorney Gen., 825 F.3d 1199, 1217 n.8 (11th Cir. 2016) (“The constitutional principles at play here, of course, apply to the government’s conduct—detaining criminal aliens—whether a § 2241 petition is filed or only potentially forthcoming.”), vacated as moot, 890 F.3d 952 (11th Cir. 2018). Plaintiffs should not be required to endure further delays while they contest the constitutionality of their detention.
The district court also properly reviewed the evidence before it and underscored the barriers that may prevent many detained noncitizens in the plaintiff class from successfully filing and litigating habeas petitions. The district court had before it declarations testifying to the fact that noncitizens such as plaintiffs are frequently pro se, have limited English skills, and lack familiarity with the legal system, and that immigration detention centers have inadequate law libraries.
Thus, on this record, we cannot say that the district court abused its discretion by determining the theoretical availability of the habeas process did not alone satisfy due process.
5
The government also suggests that non-citizens lack any rights under the Due Process Clause. As we have discussed, this position is precluded by Zadvydas and its progeny. The government relies on inapposite cases that address the peculiar constitutional status of noncitizens apprehended at a port-of-entry, but permitted to temporarily enter the United States under specific conditions. See, e.g., Shaughnessy v. United States ex rel. Mezei (“Mezei”), 345 U.S. 206, 208–09, 213–15, 73 S.Ct. 625, 97 L.Ed. 956 (1953) (noncitizen excluded while still aboard his ship, but then detained at Ellis Island pending final exclusion proceedings gained no additional procedural rights with respect to removal by virtue of his “temporary transfer from ship to shore” pursuant to a statute that “meticulously specified that such shelter

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ashore ‘shall not be considered a landing’ ”); Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958) (noncitizen paroled into the United States while waiting for a determination of her admissibility was not “within the United States” “by virtue of her physical presence as a parolee”); Kaplan v. Tod, 267 U.S. 228, 45 S.Ct. 257, 69 L.Ed. 585 (1925) (noncitizen excluded at Ellis Island but detained instead of being deported immediately due to suspension of deportations during World War I “was to be regarded as stopped at the boundary line”).
*9 Indeed, these cases, by carving out exceptions not applicable here, confirm the general rule that once a person is standing on U.S. soil—regardless of the legality of his or her entry—he or she is entitled to due process. See, e.g., Mezei, 345 U.S. at 212, 73 S.Ct. 625 (“[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.”); Leng May Ma, 357 U.S. at 187, 78 S.Ct. 1072 (explaining that “immigration laws have long made a distinction between those aliens who have come to our shores seeking admission ... and those who are within the United States after an entry, irrespective of its legality,” and recognizing, “[i]n the latter instance ... additional rights and privileges not extended to those in the former category who are merely ‘on the threshold of initial entry’ ” (quoting Mezei, 345 U.S. at 212, 73 S.Ct. 625)); Kwai Fun Wong v. United States, 373 F.3d 952, 973 (9th Cir. 2004) (explaining that “the entry fiction is best seen ...as a fairly narrow doctrine that primarily determines the procedures that the executive branch must follow before turning an immigrant away” because “[o]therwise, the doctrine would allow any number of abuses to be deemed constitutionally permissible merely by labelling certain ‘persons’ as non-persons”). We thus conclude that the district court did not err in holding that plaintiffs are “persons” protected by the Due Process Clause.
6
For all these reasons, we conclude that the district court did not abuse its discretion in concluding that the plaintiffs were likely to prevail on the merits of their due process claim regarding the availability of bond hearings.

B
Nor did the district court abuse its discretion in concluding that the plaintiffs would suffer irreparable harm absent the grant of a preliminary injunction. The district court found that, in the absence of preliminary relief, plaintiffs would suffer irreparable harm in the form of “substandard physical conditions, low standards of medical care, lack of access to attorneys and evidence as Plaintiffs prepare their cases, separation from their families, and re-traumatization of a population already found to have legitimate circumstances of victimization.” Padilla, 387 F. Supp. 3d at 1231. Contrary to the government’s unsubstantiated arguments, the record supports the district court’s conclusion, and we see no abuse of discretion.
C
The district court also did not abuse its discretion in determining that the balance of the equities and public interest favors plaintiffs with respect to Part B of the preliminary injunction.
The district court found that the equities on Plaintiffs’ side consist of the deprivation of a fundamental constitutional right and its attendant harms, which range from physical, emotional, and psychological damages to unnecessarily prolonged family separation. Padilla, 387 F. Supp. 3d at 1231; see also Padilla, 379 F. Supp. 3d at 1181. The court also observed that “it is always in the public interest to prevent the violation of a party’s constitutional rights.” Padilla, 387 F. Supp. 3d at 1232 (quoting Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)). On the other side, the district court weighed defendants’ expressed interests in the administration of immigration law, in controlling their dockets, and in allocating their limited resources as they see fit—i.e., “the efficient administration of the immigration laws.” Padilla, 387 F. Supp. 3d at 1231; see also Padilla, 379 F. Supp. 3d at 1181. The court concluded that the balance of hardships “tips decidedly in plaintiffs’ favor.” Padilla, 387 F. Supp. 3d at 1232 (quoting Hernandez, 872 F.3d at 996).
Defendants argue that the district court erred in balancing the equities because the government suffers irreparable injury anytime a statute is enjoined. This court has recognized that there is “some authority” for the idea that “a state may suffer an abstract form of harm whenever one of its acts is enjoined,” but, “to the extent that is true ... it is not dispositive of the balance of harms analysis.”

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Latta v. Otter, 771 F.3d 496, 500 (9th Cir. 2014) (quoting Indep. Living Ctr. of So. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644, 658 (9th Cir. 2009) (alterations omitted), vacated and remanded on other grounds, 565 U.S. 606, 132 S. Ct. 1204, 182 L.Ed.2d 101 (2012)); see also id. at 500 n.1 (noting that “[i]ndividual justices, in orders issued from chambers, have expressed the view that a state suffers irreparable injury when one of its laws is enjoined, [but] [n]o opinion for the Court adopts this view” (citations omitted)). The district court thus did not commit legal error in this respect. See also Robbins, 715 F.3d at 1145 (finding that balance of equities favored detained noncitizens and noting that the government “cannot suffer harm from an injunction that merely ends an unlawful practice”).
*10 In sum, we conclude that the district court did not abuse its discretion in determining that the balance of the equities and public interest favors plaintiffs.
D
Because the district court did not abuse its discretion in applying the Winter factors to determine whether plaintiffs were entitled to a preliminary injunction requiring that they receive bond hearings, we affirm Part B of the preliminary injunction.
IV
We now consider the specific procedural requirements the district court imposed in its preliminary injunction order for the required bond hearings.
As we have noted, “[t]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews, 424 U.S. at 333, 96 S.Ct. 893 (citation and quotation marks omitted). Accordingly, bond hearings must be held promptly and must involve adequate procedural protections to ensure that detention is reasonably related to preventing flight or danger to the community. See Hernandez, 872 F.3d at 990. The current record is, however, insufficient to support the district court’s findings with respect to likelihood of success, the harms facing plaintiffs, and the balance of the equities implicated by Part A of the preliminary injunction—and particularly with respect to

the requirement that the class members receive a bond hearing within seven days of making such a request or be released.
The record contains evidence describing wait times faced by detained noncitizens generally and class members prior to Matter of M-S-, but does not contain sufficient specific evidence justifying a seven-day timeline, as opposed to a 14-day, 21-day, or some other timeline. The district court also made insufficient findings regarding the extent to which the procedural requirements in Part A—and their nationwide scope—may burden the immigration courts. Critically, since the entry of the preliminary injunction, the number of individuals currently in expedited removal proceedings—and thus the number of class members—may have increased dramatically. See Designating Aliens for Expedited Removal, 84 Fed. Reg. at 35,413–14 (expanding expedited removal to the statutory limit). The government submitted on appeal declarations explaining the operational difficulties that the procedural requirements in Part A will cause. Such evidence is properly considered in the first instance by the district court.
The threat of irreparable harm to plaintiffs, the balancing of the equities, and the public interest implicated by Part A of the preliminary injunction present intensely factual questions. The factual landscape has shifted as this case has developed, including the time between the district court’s first preliminary injunction order and modified preliminary injunction order, and the district court did not consider these developments when entering the modified preliminary injunction order. Accordingly, although we affirm Part B of the preliminary injunction, we remand this case to the district court for further factual development on the Winter factors with respect to Part A of the preliminary injunction. As set forth below, we also direct the district court on remand to revisit the injunction’s scope.
V
*11 The defendants argue that, under 8 U.S.C. § 1252(f)(1), the district court lacked authority to grant injunctive relief in this case. We disagree.
Section 1252(f)(1) provides that “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of [8 U.S.C. §§ 1221–1232], other than with respect to the application of such provisions to an individual alien

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against whom proceedings under such part have been initiated.” All of the individuals in the plaintiff class here are “individual[s] against whom proceedings under such part have been initiated.” See id.
Although the Supreme Court has analyzed the impact of § 1252(f)(1) on classwide relief in suits filed by organizations, it has never had an opportunity to consider the meaning of the statute’s exception clause and its effect on the availability of classwide relief where every member of a class is “an individual alien against whom proceedings under such part have been initiated.” See id. The Supreme Court observed in Reno v. American-Arab Anti-Discrimination Committee (“AADC”) that § 1252(f)(1) is “nothing more or less than a limit on injunctive relief. It prohibits federal courts from granting classwide injunctive relief against the operation of §§ 1221–1231, but specifies that this ban does not extend to individual cases.” 525 U.S. 471, 481–82, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). The Court made this observation in the course of rejecting an argument that the subsection provided an affirmative grant of jurisdiction. See id.
Because AADC was not a class action, “[t]he Court in AADC did not consider, and had no reason to consider, the application of § 1252(f)(1) to [ ] a class” in which “[e]very member ... falls within the provision’s exception.” Jennings, 138 S. Ct. at 875 (2018) (Breyer, J., dissenting). In Jennings, the Supreme Court made clear that the question is unresolved, quoting AADC, but remanding to this court to consider in the first instance whether classwide injunctive relief is available under § 1252(f)(1)). See id. at 851.
As we noted in Rodriguez v. Marin, § 1252(f)(1) does not on its face bar class actions or classwide relief. 909 F.3d 252, 256 (9th Cir. 2018) (remanding in turn to the district court to consider in the first instance whether § 1252(f)(1) precluded the injunctive relief sought there). We decline the government’s invitation to read into the text, or in AADC, a broad but silent limitation on the district court’s powers under Federal Rule of Civil Procedure 23. “In the absence of a direct expression by Congress of its intent to depart from the usual course of trying ‘all suits of a civil nature’ under the Rules established for that purpose, class relief is appropriate in civil actions brought in federal court.” Califano v. Yamasaki, 442 U.S. 682, 700, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979).
Section 1252(f)(1)’s silence as to class actions is especially significant because its neighboring subsection, § 1252(e)(1)(B), adopted at the same time by the same Congress, expressly prohibits class actions. See 8 U.S.C. § 1252(e)(1)(B) (barring courts from “certify[ing] a class under Rule 23 ... in any action for which judicial review is

authorized under a subsequent paragraph of this subsection”); see also Trump v. Hawaii, ––– U.S. ––––, 138 S. Ct. 2392, 2408, 201 L.Ed.2d 775 (2018). Congress knows how to speak unequivocally when it wants to alter the availability of class actions in immigration cases. It did not do so here. See Rodriguez v. Hayes, 591 F.3d 1105, 1119 (2010) (construing § 1252(f)(1) narrowly as not banning classwide declaratory relief in light of § 1252(e)’s breadth); Am. Immigration Lawyers Ass’n v. Reno (“AILA”), 199 F.3d 1352, 1359 (D.C. Cir. 2000) (noting that § 1252(e) contains a “ban on class actions” while § 1252(f)(1) contains a different limitation); see also Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (“[W]hen Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (quotation marks and citation omitted)).
*12 The government contends that our interpretation of § 1252(f)(1) as applied to this case renders superfluous the word “individual” in the phrase “individual alien.” However, the word “individual” is not superfluous if Congress intended it to prohibit injunctive relief with respect to organizational plaintiffs. Cf. Califano, 442 U.S. at 701, 99 S.Ct. 2545 (explaining that a statute authorizing a suit by “any individual” and “contemplat[ing] case-by-case adjudication” does not foreclose classwide relief because “[w]here the district court has jurisdiction over the claim of each individual member of the class, [FRCP] 23 provides a procedure by which the court may exercise that jurisdiction over the various individual claims in a single proceeding”); Brown v. Plata, 563 U.S. 493, 531, 131 S.Ct. 1910, 179 L.Ed.2d 969 (2011) (provision stating that a remedy shall extend no further than necessary to remedy the violation of the rights of a “particular plaintiff or plaintiffs” was not a limitation on classwide injunctive relief, but instead meant that the “scope of the order must be determined with reference to the constitutional violations established by the specific plaintiffs before the court”).
The statute’s legislative history supports our reading. See Pac. Coast Fed’n of Fishermen’s Ass’ns v. Glaser, 937 F.3d 1191, 1196 (9th Cir. 2019) (explaining that courts “may use canons of construction, legislative history, and the statute’s overall purpose to illuminate Congress’s intent”). Congress adopted § 1252(f)(1) after a period in which organizations and classes of persons, many of whom were not themselves in proceedings, brought preemptive challenges to the enforcement of certain immigration statutes. See, e.g., Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 47–51, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) (appeal from orders invalidating INS

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regulations in class actions brought by immigration rights groups); McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 487–88, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991) (appeal from order holding certain INS practices unconstitutional and requiring INS to modify its practices in action brought by immigrant rights group on behalf of a class of farmworkers); Haitian Refugee Ctr. v. Smith, 676 F.2d 1023, 1026 (5th Cir. Unit B 1982) (affirming finding that new asylum procedures violated due process in case brought by an organization on behalf of a class of Haitians who had petitioned for political asylum); see also AILA, 199 F.3d at 1359–60 (“Congress meant to allow litigation challenging the new system by, and only by, aliens against whom the new procedures had been applied”).
The statute’s legislative history also reveals that Congress was concerned that § 1252(f)(1) not hamper a district court’s ability to address imminent rights violations. See H.R. Rep. No. 104-469(I), at 161 (1996) (explaining that § 1252(f)(1) limited courts’ “authority to enjoin procedures established by Congress to reform the process of removing illegal aliens from the U.S.,” but preserved their ability to “issue injunctive relief pertaining to the case of an individual alien, and thus protect against any immediate violation of rights”). This history supports the view that Congress intended § 1252(f)(1) to restrict courts’ power to impede the new congressional removal scheme on the basis of suits brought by organizational plaintiffs and noncitizens not yet facing proceedings under 8 U.S.C. §§ 1221–1232. Here, where the class is composed of individual noncitizens, each of whom is in removal proceedings and facing an immediate violation of their rights, and where the district court has jurisdiction over each individual member of that class, classwide injunctive relief is consistent with that congressional intent.
Thus, upon interlocutory review, we conclude that § 1252(f)(1) did not bar the district court from granting preliminary injunctive relief for this class of noncitizens, each of whom is an individual noncitizen against whom removal proceedings have been initiated.
VI
Although defendants dispute the district court’s authority to issue classwide injunctive relief under § 1252(f)(1), defendants do not challenge the scope of the preliminary injunction. We conclude that the district court did not abuse its discretion in granting a preliminary injunction

with respect to the nationwide class.
*13 Where, as here, a district court has already certified a nationwide class, the concerns associated with broad injunctions are minimized. “If a class action is otherwise proper, and if jurisdiction lies over the claims of the members of the class, the fact that the class is nationwide in scope does not necessarily mean that the relief afforded the plaintiffs will be more burdensome than necessary to redress the complaining parties.” Califano, 442 U.S. at 702, 99 S.Ct. 2545. Cf. Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501 (9th Cir. 1996) (“[I]njunctive relief generally should be limited to apply only to named plaintiffs where there is no class certification.”). “[T]he scope of [a] remedy is determined by the nature and extent of the ... violation,” Milliken v. Bradley, 433 U.S. 267, 270, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977), and “not by the geographical extent of the plaintiff,” Califano, 442 U.S. at 702, 99 S.Ct. 2545.
The nationwide class in this case is defined by a shared alleged constitutional violation. See Padilla, No. C18-928 MJP, 2019 WL 1056466, at *6 (W.D. Wash. Mar. 6, 2019). The injunction seeks to remedy that constitutional violation. In certifying the class, the court observed that, in addition to establishing numerosity, commonality, typicality and adequacy, plaintiffs had demonstrated “that the challenged conduct is ‘such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’ ” Id. (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011)). The court further concluded that certification of a nationwide class was “manifestly” appropriate, and it rejected defendants’ request to limit the scope of class certification. See id.7 Defendants did not seek to appeal class certification on any grounds, nor have they suggested at any point during this appeal that the nationwide scope of the certified class is improper. We have already concluded that the district court did not abuse its discretion in holding that members of the certified class are constitutionally entitled to bond hearings. Therefore, we cannot conclude that the district court abused its discretion in issuing classwide preliminary injunctive relief. Nonetheless, on remand, in considering the appropriate procedures that must be followed with respect to the required bond hearings, the district court must revisit the nationwide scope of the injunction to ensure that it is not “more burdensome than necessary to redress the complaining parties.” See Califano, 442 U.S. at 702, 99 S.Ct. 2545.

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VII
In sum, the district court did not abuse its discretion in concluding that plaintiffs are likely to succeed on their challenge under the Due Process Clause to the detention of class members without any opportunity for a bond hearing. The district court likewise did not abuse its discretion in finding plaintiffs would suffer irreparable harm absent preliminary relief and that the balance of the equities and public interest favored plaintiffs. Part B of the district court’s preliminary injunction is thus AFFIRMED, except to the extent that it requires that bond hearings be administered under the conditions enumerated in Part A.
*14 We VACATE and REMAND Part A of the preliminary injunction to the district court for further factual development and consideration of the procedures that must be followed with respect to the required bond hearings. The district court must further develop the relevant factual record and revisit the scope of the injunction.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
BADE, Circuit Judge, dissenting:
In keeping with the current trend in constitutional challenges to the enforcement of immigration statutes, the district court issued a classwide, nationwide preliminary injunction against the operation of 8 U.S.C. § 1225(b)(1)(B)(ii). But Congress plainly barred lower courts from issuing such injunctions except as to “an individual alien,” 8 U.S.C. § 1252(f)(1), and the Supreme Court has construed § 1252(f)(1) as a jurisdictional bar on a lower court’s ability to issue classwide injunctive relief. Despite this authority (and the plain language of the statute, general statutory construction principles, and the holdings of two of our sister circuits), the majority opinion finds jurisdiction in this case.
I respectfully dissent.
I.
Section 1252(f)(1) is straightforward. It provides that:

Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter ... other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.
8 U.S.C. § 1252(f)(1). Recognizing the simplicity of this language, the Supreme Court has repeatedly interpreted this statute as a bar on classwide injunctive relief against the operation of 8 U.S.C. §§ 1221–1232. See Jennings v. Rodriguez, ––– U.S. ––––, 138 S. Ct. 830, 851, 200 L.Ed.2d 122 (2018) (confirming that § 1252(f)(1) bars federal courts from issuing classwide injunctive relief against the operation of §§ 1221–1232); Nken v. Holder, 556 U.S. 418, 431, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (describing § 1252(f)(1) as “a provision prohibiting class wide injunctions against the operation of removal provisions”); Reno v. Am.-Arab Anti-Discrimination Comm. (“AADC”), 525 U.S. 471, 481–82, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (“By its plain terms, and even by its title, that provision is nothing more or less than a limit on injunctive relief. It prohibits federal courts from granting classwide injunctive relief against the operation of §§ 1221–123[2], but specifies that this ban does not extend to individual cases.”).
The majority opinion brushes these cases aside because the Supreme Court has yet to construe § 1252(f)(1) in a case brought by a class of aliens all of whom were in removal proceedings. Maj. Op. –––– – ––––. Although the majority opinion is correct that AADC and Nken were not class actions brought by aliens in removal proceedings, Jennings was such a class proceeding. And in that case, the Court was dubious that a lower court would have jurisdiction to issue a classwide injunction in the context of a constitutional challenge to §§ 1221–1232. See Jennings, 138 S. Ct. at 851 (explaining that the Ninth Circuit’s reasoning for exercising jurisdiction over a class action statutory claim seeking injunctive relief against the operation of §§ 1225–1226 “does not seem to apply to an order granting relief on constitutional grounds”).1
*15 Nothing in the Supreme Court’s precedent suggests that the Court has changed its mind since deciding Jennings. And, even if we characterize the Court’s repeated statements about § 1252(f)(1) as dicta, we are

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“advised to follow” them. Lemoge v. United States, 587 F.3d 1188, 1193 (9th Cir. 2009) (quoting Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1129 (9th Cir. 2006) (en banc)); see, e.g., United States v. Montero-Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir. 2000) (en banc) (noting that “Supreme Court dicta have a weight that is greater than ordinary judicial dicta as prophecy of what that Court might hold” (internal quotation marks and citation omitted)). The majority opinion does not follow the Court’s interpretation of § 1252(f)(1), but then fails to persuasively explain why the Court would—despite its skepticism in Jennings—rule differently in the circumstances of this case.
Even if we could (or should) sidestep Jennings, Nken, and AADC, a proper statutory analysis leads to the same result. The majority opinion’s conclusion that jurisdiction exists is based on a faulty reading of § 1252(f)(1)’s plain language and misapplication of statutory construction principles.
II.
When construing a statute, “no clause, sentence, or word shall be superfluous, void, or insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) (citation omitted). The majority opinion’s reading of § 1252(f)(1)—specifically its interpretation of “an individual alien”—departs from this long-established rule. As the majority opinion construes the statute, the word “individual” stands as a mere superfluity. See Hamama v. Adducci (“Hamama I”), 912 F.3d 869, 877 (6th Cir. 2018) (“There is no way to square the concept of a class action lawsuit with the wording ‘individual’ in [§ 1252(f)(1)].”).
The majority opinion defines “individual” as the opposite of “organization,” apparently concluding that Congress added “individual” to § 1252(f)(1) to ensure that “alien” refers to a person, not an artificial entity. Maj. Op. ––––. But this definition renders “individual” superfluous because an organizational or artificial entity “alien” does not exist for purposes of the immigration statutes. See 8 U.S.C. § 1101(a)(3) (defining “alien” as “any person not a citizen or national of the United States”). To be given effect, “individual” can only be read as an adjective providing a separate, numerical limitation on the clause’s noun, “alien.” See Individual, Black’s Law Dictionary (11th ed. 2019) (defining “individual” when used as an adjective as “[e]xisting as an indivisible entity” or “[o]f,

relating to, or involving a single person or thing, as opposed to a group” (emphasis added)).2
The majority opinion’s construction would be palatable only if Congress had replaced the phrase “an individual alien” with “any alien” or “an alien”—as it did in over a dozen other subsections of the statute. See, e.g., 8 U.S.C. §§ 1252(a)(2)(C), 1252(b)(3)(B), 1252(b)(4)(C), 1252(b)(9), 1252(e)(1)(A), 1252(e)(4)(B), 1252(f)(2), 1252(g).3 Had Congress used either of these alternatives, there would be no separate numerical limitation on “alien,” there would be no reason for us to define “individual,” and the majority opinion’s perceived legislative goal of preventing organization-led preemptive challenges to immigration statutes would be achieved. But we cannot rewrite the statute, see Dodd v. United States, 545 U.S. 353, 359, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005) (“[W]e are not free to rewrite the statute that Congress has enacted.”), nor can we overlook Congress’s use of different language in separate provisions of the same statute, see Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). Congress specifically precluded lower courts from issuing injunctive relief except as to “an individual alien,” and that is the language we must enforce. See Dodd, 545 U.S. at 359, 125 S.Ct. 2478. And because Congress “use[d] certain language in one part of the statute and different language in another, [we] assume[ ] different meanings were intended.” Sosa, 542 U.S. at 711 n.9, 124 S.Ct. 2739 (citation omitted).
III.
*16 The majority opinion also posits that if Congress intended to bar classwide injunctive relief, it would have explicitly barred class actions like it did in a neighboring statute, 8 U.S.C. § 1252(e)(1)(B). Maj. Op. –––– – ––––. But barring class certification altogether (the function of § 1252(e)(1)(B)) fundamentally differs from barring a type of relief that a court can issue (the function of § 1252(f)(1)). The two statutes serve different purposes, and § 1252(f)(1) does not preclude class actions wholesale; it narrowly limits the available relief.
The majority opinion relies, in part, on Califano v. Yamasaki, 442 U.S. 682, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979), to argue that Congress did not intend to prohibit classwide injunctive relief in § 1252(f)(1). This reliance on Califano, a case analyzing a provision in the Social Security Act, 42 U.S.C. § 405(g), is misplaced. In

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Califano, the Court found that a statute affirmatively authorizing a suit by “[a]ny individual” did not foreclose class actions because Federal Rule of Civil Procedure 23 “provides a procedure by which [a] court may exercise ... jurisdiction over the various individual claims in a single proceeding.” 442 U.S. at 701, 99 S.Ct. 2545. But 42 U.S.C. § 405(g) and 8 U.S.C. § 1252(f)(1) differ materially in form and in substance. The former explicitly authorizes “[a]ny individual” to file a lawsuit and thus is a jurisdictional conferring statute. See 42 U.S.C. § 405(g). It does not prohibit a court from issuing a specific form of relief, nor does it carve out an exception to a general statutory bar. In contrast, the latter is a jurisdictional stripping statute that categorically bars a type of relief but carves out a narrow exception for “an individual alien.” See 8 U.S.C. § 1252(f)(1). It does not fully foreclose a class or multi-party lawsuit, see Rodriguez v. Marin, 909 F.3d 252, 259 (9th Cir. 2018), nor does it grant jurisdiction, see AADC, 525 U.S. at 481–82, 119 S.Ct. 936. And in contrast to § 405(g)’s use of “individual” as a standalone noun, § 1252(f)(1) uses “individual” as an adjective to numerically limit “alien.” In short, Califano “does not stop the [c]ourt from looking at a particular statute that uses the word ‘individual’ and determining that, even if the use of ‘individual’ does not always bar class actions, it does bar them in the particular statute at issue.” Hamama I, 912 F.3d at 878.
Section 1252(f)(1)’s title (“Limit on injunctive relief”) and its first clause (“Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action”) further demonstrate its functional difference from 8 U.S.C. § 1252(e)(1)(B) and 42 U.S.C. § 405(g). As recognized by the Supreme Court, § 1252(f)(1)’s title portends what the language of the statute makes plain: the statute generally prohibits injunctive relief. See AADC, 525 U.S. at 481–82, 119 S.Ct. 936. And its opening clause recognizes that a lower court has jurisdiction over cases filed by multiple “parties,” but states that “[r]egardless” of whether the action is brought by one “party” or multiple “parties,” lower courts cannot issue injunctive relief except as to “an individual alien against whom proceedings under such part have been initiated.” 8 U.S.C. § 1252(f)(1). Thus, by its explicit terms, § 1252(f)(1) bars both classwide injunctions and injunctive relief for aliens who are not in removal proceedings.
IV.
Perhaps seeking a foothold for its shaky analysis, the

majority opinion also resorts to the statute’s legislative history. Maj. Op. –––– – ––––. But “where, as here, the words of the statute are unambiguous, the judicial inquiry is complete.” Desert Palace, Inc. v. Costa, 539 U.S. 90, 98, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003) (internal quotation marks and citation omitted); see Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (“Our inquiry must cease if the statutory language is unambiguous and the statutory scheme is coherent and consistent.” (internal quotation marks and citation omitted)). The majority opinion fails to identify any ambiguity in § 1252(f)(1), nor have I discovered any such language.
*17 In any event, the scant discussion in the statute’s legislative history specifically addressing § 1252(f)(1) does not salvage the majority opinion’s interpretation. Without explaining the relevance, the majority opinion first notes that Congress enacted § 1252(f)(1) after a “period” when organizational plaintiffs filed “preemptive challenges” against “the enforcement of certain immigration statutes.” Maj. Op. ––––. This statement may be true as far as it goes, but we should not bootstrap our interpretation of a statute on a hypothesis that Congress silently intended the legislation to prevent organization-led preemptive lawsuits of which it may have been unaware.4
The majority opinion also relies on a House Committee report to support its reading of § 1252(f)(1) as allowing classwide injunctive relief when each class member “is in removal proceedings and facing an immediate violation of rights.” Maj. Op. –––– – ––––. The relevant portion of this report provides, in full, as follows:
Section 306 also limits the authority of Federal courts other than the Supreme Court to enjoin the operation of the new removal procedures established in this legislation. These limitations do not preclude challenges to the new procedures, but the procedures will remain in force while such lawsuits are pending. In addition, courts may issue injunctive relief pertaining to the case of an individual alien, and thus protect against any immediate violation of rights. However, single district courts or courts of appeal do not have authority to enjoin procedures established by Congress to reform the process of removing illegal

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aliens from the U.S.
H.R. Rep. No. 104-469(I), at 161 (1996).
Although this report holds “no binding legal effect,” Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 684 (9th Cir. 2007), the majority opinion emphasizes the phrase “immediate violation of rights.” In so doing, it overlooks the preceding clause: “courts may issue injunctive relief pertaining to the case of an individual alien.” H.R. Rep. No. 104-469(I), at 161 (emphasis added). Like the statute itself, this language specifically describes the scope of the carve out using singular phrasing. And the next sentence firmly states that lower courts cannot “enjoin procedures established by Congress to reform the process of removing illegal aliens from the U.S.” Id. Contrary to the majority opinion’s view, this report shows that Congress wanted to prevent lower courts from issuing sweeping injunctions—such as the classwide, nationwide injunction at issue here—against its enacted removal procedures.
In sum, the legislative history does not support the majority opinion’s reading of § 1252(f)(1). It is ambiguous at best and cannot override the clear statutory language. See Azar v. Allina Health Servs., ––– U.S. ––––, 139 S. Ct. 1804, 1814, 204 L.Ed.2d 139 (2019) (“[E]ven those of us who believe that clear legislative history can illuminate ambiguous text won’t allow ambiguous legislative history to muddy clear statutory language.” (internal quotation marks and citation omitted)).
V.
I am not the first to conclude that § 1252(f)(1) bars classwide injunctive relief under the circumstances of this case. In a constitutional challenge to continued detention under the immigration statutes brought by a class of aliens in removal proceedings, the Sixth Circuit applied the Supreme Court’s reading of § 1252(f)(1) to hold that the statute bars classwide injunctive relief. See Hamama I, 912 F.3d at 877 (“In our view, [AADC] unambiguously strips federal courts of jurisdiction to enter class-wide injunctive relief[.]”); see also Hamama v. Adducci (“Hamama II”), 946 F.3d 875, 877 (6th Cir. 2020) (“Congress stripped all courts, save for the Supreme Court, of jurisdiction to enjoin or restrain the operation of 8 U.S.C. §§ 1221–1232 on a class-wide basis.” (citing 8

U.S.C. § 1252(f)(1))). The Tenth Circuit reached the same result. See Van Dinh v. Reno, 197 F.3d 427, 433 (10th Cir. 1999) (holding that “§ 1252(f) forecloses jurisdiction to grant class-wide injunctive relief to restrain operation of §§ 1221–[12]3[2] by any court other than the Supreme Court”).
*18 We should “decline to create a circuit split unless there is a compelling reason to do so.” Kelton Arms Condo. Owners Ass’n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003). The majority opinion fails to identify such a “compelling reason.” As a result, even though we trail two other circuits in addressing this issue, the majority opinion makes us the first and only circuit to conclude that § 1252(f)(1) does not bar classwide injunctive relief.
VI.
Even if the district court had jurisdiction to issue classwide injunctive relief, the preliminary injunction is overbroad and extends far beyond the demands of due process.
The district court certified the Bond Hearing Class as:
All detained asylum seekers who entered the United States without inspection, were initially subject to expedited removal proceedings under 8 U.S.C. § 1225(b), were determined to have a credible fear of persecution, but are not provided a bond hearing with a verbatim transcript or recording of the hearing within seven days of requesting a bond hearing.
Padilla v. U.S. Immigration & Customs Enf’t, No. C18-928 MJP, 2019 WL 1056466, at *1 (W.D. Wash. Mar. 6, 2019). The district court then issued the two-part preliminary injunction that is the subject of this appeal. In Part A of the injunction, the district court ordered the government to provide bond hearings with various procedures that supposedly are required by the Constitution, including that the hearings be conducted within seven days of a request. Padilla v. U.S.

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Immigration & Customs Enf’t, 387 F. Supp. 3d 1219, 1232 (W.D. Wash. 2019). In Part B, the district court “f[ound] that the statutory prohibition at [§ 1225(b)(1)(B)(ii)] against releasing on bond persons found to have a credible fear and awaiting a determination of their asylum application violates the U.S. Constitution.” Id. In Part B, the district court also found that “the Bond Hearing Class is constitutionally entitled to a bond hearing before a neutral decisionmaker (under the conditions enumerated [in Part A] ) pending resolution of their asylum applications.” Id.
The majority opinion concludes that “[t]he current record is ... insufficient to support the district court’s findings with respect to likelihood of success, the harms facing plaintiffs, and the balance of the equities implicated by Part A of the preliminary injunction—and particularly with respect to the requirement that the class members receive a bond hearing within seven days of making such a request or be released.” Maj. Op. ––––. The majority opinion finds that the record “does not contain sufficient specific evidence justifying a seven-day timeline, as opposed to a 14-day, 21-day, or some other timeline.” Maj. Op. ––––. Ultimately, the majority opinion affirms Part B “except to the extent that it requires that bond hearings be administered under the conditions enumerated in Part A” and remands Part A for “further factual development and consideration” of the bond hearing procedures. Maj. Op. ––––.
This holding raises multiple concerns, and Part B’s breadth is the most troublesome. Plaintiffs concede that they do not assert a facial challenge to § 1225(b)(1)(B)(ii). Nonetheless, in Part B the district court deems the statute unconstitutional in its entirety, rather than as applied to the Bond Hearing Class. See Padilla, 387 F. Supp. 3d at 1232 (“[F]ind[ing] that the statutory prohibition at [§ 1225(b)(1)(B)(ii)] against releasing on bond persons found to have a credible fear and awaiting a determination of their asylum application violates the U.S. Constitution[.]”). Section 1225(b)(1)(B)(ii) requires the government to detain multiple categories of aliens, not only those aliens who meet the definition of the Bond Hearing Class.5 But the district court did not exclude from its sweeping finding of unconstitutionality the application of the statute to detain other aliens who are not members of the Bond Hearing Class, such as “arriving” aliens under § 1225(b)(1)(A)(ii). By rendering § 1225(b)(1)(B)(ii) wholly unconstitutional, Part B is overbroad.6
*19 Furthermore, the majority opinion suggests that although the record does not support a seven-day deadline for bond hearings, it may support a 14-day, 21-day, or other unspecified but presumably similarly limited

deadline. See Maj. Op. ––––. But decisions made in similar contexts by the Supreme Court and this court establish that due process is not so demanding. Rather, these cases hold that, as a constitutional matter, the government need only provide bond hearings to detained aliens once the detention becomes “prolonged” or fails to serve its immigration purpose, a period generally understood to be six months. See Clark v. Martinez, 543 U.S. 371, 386, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005) (applying a “6-month presumptive detention period”); Demore v. Kim, 538 U.S. 510, 527–31, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (upholding as constitutional the detention of aliens for the entire duration of removal proceedings under 8 U.S.C. § 1226(c)); Zadvydas, 533 U.S. at 699, 701–02, 121 S.Ct. 2491 (holding that six months is a “presumptively reasonable period of detention” under 8 U.S.C. § 1231(a)(6)); Marin, 909 F.3d at 256–57 (expressing doubt “that any statute that allows for arbitrary prolonged detention without any process is constitutional”); Diouf v. Napolitano, 634 F.3d 1081, 1092 n.13 (9th Cir. 2011) (defining detention under 8 U.S.C. § 1231(a)(6) as “prolonged when it has lasted six months and is expected to continue more than minimally beyond six months”).7
Although “detention during deportation proceedings [i]s a constitutionally valid aspect of the deportation process,” Demore, 538 U.S. at 523, 123 S.Ct. 1708, the majority opinion cites no decision from the Supreme Court or this court suggesting that two or three weeks constitutes “prolonged” detention.8
VII.
The majority opinion does not square with the plain text of § 1252(f)(1), is inconsistent with multiple Supreme Court cases, and needlessly creates a circuit split. Despite Congress unequivocally barring lower courts from issuing classwide injunctions against the operation of certain immigration statutes, the majority opinion gives a green light for the district courts in this circuit (as well as this court) to issue (and uphold) such relief. And, even if the district court had jurisdiction to issue injunctive relief, the preliminary injunction is overbroad and exceeds what the Constitution demands.
I would vacate the preliminary injunction and remand for further proceedings with instructions to dismiss the claims for classwide injunctive relief. I respectfully dissent.

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All Citations

2783

--- F.3d ----, 2020 WL 1482393, 20 Cal. Daily Op. Serv. Footnotes

1

At the time the district court certified the class and the injunction was issued below, the government applied

expedited removal to inadmissable noncitizens arriving at a port-of-entry and any inadmissible noncitizen

apprehended within 100 miles of the border and present in the country for fewer than 14 days. See Designating

Aliens for Expedited Removal, 69 Fed. Reg. 48877-01, 48879–80 (Aug. 11, 2004). In July 2019, however, the

Department of Homeland Security (“DHS”) announced that it would expand expedited removal to the statutory

limit. See Designating Aliens for Expedited Removal, 84 Fed. Reg. 35,409-01, 35,413–14 (July 23, 2019); see also 8

U.S.C. § 1225(b)(1)(A)(iii)(II).

2

The parties later stipulated that “the Bond Hearing Class includes individuals who otherwise satisfy the

requirements for class membership but were determined to have a credible fear of torture, rather than only

individuals determined to have a credible fear of persecution.”

3

Plaintiffs also challenged, inter alia, the AG’s interpretation of 8 U.S.C. § 1225(b)(1)(B)(ii), but did not seek

preliminary relief on that basis.

4

Plaintiffs have moved to stay further appellate proceedings pending the Supreme Court’s decision in Thuraissigiam

v. DHS, 917 F.3d 1097, 1100 (9th Cir. 2019), cert. granted sub nom. DHS v. Thuraissigiam, No. 19-161, ––– U.S. ––––,

140 S.Ct. 427, 205 L.Ed.2d 244, 2019 WL 5281289 (U.S. Oct. 18, 2019). The motion is DENIED.

5

We acknowledge, however, that the government recently informed the Supreme Court that, with respect to

duration of detention, “the statistics it gave to the Court in Demore were wrong.” Jennings, 138 S. Ct. at 869 (Breyer,

J., dissenting).

6

These sections refer to the AG, but those functions have been transferred to the Secretary of DHS. See 6 U.S.C. §§

251, 552(d); Clark v. Suarez Martinez, 543 U.S. 371, 374 n.1, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005).

7

The district court rejected defendants’ request to limit the class to individuals located in the Western District of

Washington. Id. The court noted that class representatives were transferred all over the country before landing in

Washington and that detained immigrants are routinely transferred throughout the country prior to adjudicating

their cases. Id. The court also found that defendants apply a uniform “indefinite detention” policy across the country

and that class members face the same allegedly improper circumstances of detention regardless of their location. Id.

The court could not identify—and defendants did not cite—any ongoing litigation of the same issue in other

districts. Id. Finally, noting that the overwhelming majority of class members are not sufficiently resourced to pursue

individual litigation, the court rejected defendants’ argument that class members should be afforded the

opportunity to seek “speedier individual recovery.” Id. Defendants have not raised any similar arguments on appeal.

1

In Jennings, the Ninth Circuit exercised jurisdiction over a statutory challenge brought by a class of aliens in removal

proceedings because the claim was premised on conduct allegedly “not authorized by the statutes” and therefore

the claim did not go to the “operation of” the removal provisions. 138 S. Ct. at 851. Here, in contrast, Plaintiffs do

not argue that their constitutional challenge seeks to prevent conduct not authorized by § 1225(b)(1)(B)(ii); they

directly challenge the “operation of” that statute.

2

The Dictionary Act instructs that when a statute includes a word “importing the singular,” that word applies to

“several persons, parties, or things” “unless the context indicates otherwise.” 1 U.S.C. § 1. Here, “alien” is a singular

term and thus should generally be construed as applying to multiple aliens. The context of § 1252(f)(1), however,

indicates otherwise: by adding the adjective “individual,” Congress placed a specific, standalone numerical limitation

Padilla v. Immigration and Customs Enforcement, --- F.3d ---- (2020) 2020 WL 1482393, 20 Cal. Daily Op. Serv. 2783

on the term “alien.” If the Dictionary Act required both “individual” and “alien” to be read as applying to multiple persons, “individual” becomes superfluous.

3

In § 1252, the phrase “an individual alien” is found only in subsection (f)(1), while “an alien” and “any alien” are used

fifteen times in subsections (a), (b), (e), (f)(2), and (g).

4

We, of course, can assume that Congress was “aware of relevant judicial precedent” when it enacted § 1252(f)(1),

see Merck & Co. v. Reynolds, 559 U.S. 633, 648, 130 S.Ct. 1784, 176 L.Ed.2d 582 (2010), but for what “relevant

judicial precedent” would we assume such Congressional awareness? The majority opinion does not identify any

pre-§ 1252(f)(1) case addressing the threshold jurisdictional question at issue here—nor can it: the statutory bar on

classwide injunctive relief did not exist until the enactment of § 1252(f)(1) in 1996.

5

Section 1225(b)(1)(B)(ii) mandates detention of any alien referred to in § 1225(b)(1)(A)(ii) who an asylum officer

determines has a credible fear of persecution. See 8 U.S.C. § 1225(b)(1)(B)(i)–(ii). Section 1225(b)(1)(A)(ii) refers to

two types of aliens: (1) those “arriving in the United States”; and (2) those “described” in § 1225(b)(1)(A)(iii),

including an alien “who has not been admitted or paroled into the United States, and who has not affirmatively

shown ... that the alien has been physically present in the United States continuously for the 2-year period

immediately prior to the date of the determination of inadmissibility.” 8 U.S.C. § 1225(b)(1)(A)(ii)–(iii). Members of

the Bond Hearing Class are in the latter group, and do not include arriving aliens.

6

The law has long recognized a distinction between the process due to aliens arriving at our borders and to those

who have already entered the country. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d

653 (2001) (“It is well established that certain constitutional protections available to persons inside the United

States are unavailable to aliens outside of our geographic borders.”). And unlike members of the Bond Hearing Class,

arriving aliens have not entered the country. See, e.g., Alvarez-Garcia v. Ashcroft, 378 F.3d 1094, 1097 (9th Cir.

2004) (“[A]lthough aliens seeking admission into the United States may physically be allowed within its borders

pending a determination of admissibility, such aliens are legally considered to be detained at the border and hence

as never having effected entry into this country.”). The detention of arriving aliens under § 1225(b)(1)(B)(ii) was not

an issue before the district court (or this court) in this as-applied challenge.

7

The impact of a longer detention period runs deeper than the preliminary injunction; it creates an Article III standing

dilemma for the Bond Hearing Class. Standing requires, among other things, an actual or imminent injury in fact, see

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), and “at least one named

plaintiff” in a class action must establish standing, see Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir.

2007) (en banc). As the district court found, the longest period a named plaintiff for the Bond Hearing Class waited

to obtain a bond hearing after securing a positive credible fear determination was about three weeks, see Padilla,

2019 WL 1056466, at *1–2, a period far shorter than the presumptively reasonable six months.

8

As to the other procedural requirements imposed by the district court in Part A of the preliminary injunction (e.g.,

placing the burden of proof on the government, requiring the government to record the bond hearing and produce

the recording or a verbatim transcript on appeal, and requiring the government to provide a written decision with

particularized determinations of individualized findings on the same day as the hearing), I agree with the majority

opinion that the record does not support those procedures, and I find it exceedingly unlikely that the Constitution

mandates them.