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IN IMMIGRATION CASES,HABEAS,PROTO,STAYED
U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:16-cv-01454-JLR

Martinez Banos, et al v. Asher et al

Date Filed: 09/14/2016

Assigned to: Judge James L. Robart

Jury Demand: None

Case in other court: 9th Circuit Court of Appeals, 18-35460 Nature of Suit: 463 Habeas Corpus -

Cause: 28:2241 Petition for Writ of Habeas Corpus (federal) Alien Detainee Jurisdiction: U.S. Government

Defendant

Petitioner

Arturo Martinez Banos on behalf of himself as an individual and on behalf of others similarly situated TERMINATED: 07/12/2017

represented by Matt Adams NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206-957-8611 Email: matt@nwirp.org TERMINATED: 07/12/2017 LEAD ATTORNEY

Aaron Korthuis NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206-957-8611 Email: aaron@nwirp.org ATTORNEY TO BE NOTICED

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: 01/02/2020

Leila Kang

Petitioner Edwin Flores Tejada
Petitioner German Ventura Hernandez on behalf of themselves as individuals and on behalf of others similarly situated
V. Defendant Chad Wolf

NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206-957-8608 Email: leila@nwirp.org TERMINATED: 12/13/2019
represented by Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron Korthuis (See above for address) ATTORNEY TO BE NOTICED
Glenda Melinda Aldana Madrid (See above for address) TERMINATED: 01/02/2020
Leila Kang (See above for address) TERMINATED: 12/13/2019
represented by Matt Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron Korthuis (See above for address) ATTORNEY TO BE NOTICED
Glenda Melinda Aldana Madrid (See above for address) TERMINATED: 01/02/2020
Leila Kang (See above for address) TERMINATED: 12/13/2019
represented by US Attorney Habeas

Acting Secretary of Homeland Security
V. Respondent Nathalie R Asher Field Office Director TERMINATED: 06/04/2019
Respondent Thomas D Homan Acting Director of U.S. Immigration and Customs Enforcement

Email: usawaw.Habeas@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gladys M. Steffens Guzman DEPARTMENT OF JUSTICE CIVIL DIVISION 450 5TH STREET NW PO BOX 898, BEN FRANKLIN STATION WASHINGTON, DC 20044 202-305-7181 Email: Gladys.SteffensGuzman@usdoj.gov ATTORNEY TO BE NOTICED
represented by US Attorney Habeas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gladys M. Steffens Guzman (See above for address) ATTORNEY TO BE NOTICED
Sairah G Saeed US DEPT. OF JUSTICE OFFICE OF IMMIGRATION LITIGATION 450 5TH STREET NW WASHINGTON, DC 20001 202-532-4067 Email: sairah.g.saeed@usdoj.gov TERMINATED: 12/23/2019
represented by US Attorney Habeas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gladys M. Steffens Guzman (See above for address) ATTORNEY TO BE NOTICED
Sairah G Saeed

Respondent John F Kelly Secretary of the Department of Homeland Security; TERMINATED: 06/04/2019
Respondent Juan P. Osuna Director of Executive Office for Immigration Review TERMINATED: 07/11/2017
Respondent Dana J Boente Acting Attorney General of the United States TERMINATED: 07/11/2017
Respondent Lowell Clark Warden

(See above for address) TERMINATED: 12/23/2019
represented by US Attorney Habeas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gladys M. Steffens Guzman (See above for address) ATTORNEY TO BE NOTICED
Sairah G Saeed (See above for address) TERMINATED: 12/23/2019
represented by US Attorney Habeas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gladys M. Steffens Guzman (See above for address) ATTORNEY TO BE NOTICED
represented by US Attorney Habeas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gladys M. Steffens Guzman (See above for address) ATTORNEY TO BE NOTICED
represented by US Attorney Habeas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gladys M. Steffens Guzman (See above for address) ATTORNEY TO BE NOTICED
Sairah G Saeed (See above for address)

Respondent James McHenry Director of Executive Office for Immigration Review
Respondent Jefferson Beauregard Sessions, III Acting Attorney General of the United States TERMINATED: 06/04/2019
Respondent Elizabeth Godfrey Field Office Director
Respondent Kevin K McAleenan Secretary of the Department of Homeland Security

TERMINATED: 12/23/2019
represented by US Attorney Habeas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gladys M. Steffens Guzman (See above for address) ATTORNEY TO BE NOTICED
Sairah G Saeed (See above for address) TERMINATED: 12/23/2019
represented by US Attorney Habeas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gladys M. Steffens Guzman (See above for address) ATTORNEY TO BE NOTICED
Sairah G Saeed (See above for address) TERMINATED: 12/23/2019
represented by US Attorney Habeas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gladys M. Steffens Guzman (See above for address) ATTORNEY TO BE NOTICED
Sairah G Saeed (See above for address) TERMINATED: 12/23/2019
represented by US Attorney Habeas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
William Barr United States Attorney General

Gladys M. Steffens Guzman (See above for address) ATTORNEY TO BE NOTICED
Sairah G Saeed (See above for address) TERMINATED: 12/23/2019
represented by US Attorney Habeas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gladys M. Steffens Guzman (See above for address) ATTORNEY TO BE NOTICED
Sairah G Saeed (See above for address) TERMINATED: 12/23/2019

Date Filed 09/14/2016
09/15/2016 09/15/2016 09/15/2016

#

Docket Text

1 PETITION for Writ of Habeas Corpus (Receipt # 0981-4601224), filed by Arturo Martinez Banos. (Attachments: # 1 Exhibit Exh. A, BIA Order, # 2 Exhibit Exh. B, IJ Orders, # 3 Civil Cover Sheet, # 4 Summons Summons Asher, # 5 Summons Summons Saldana, # 6 Summons Summons Johnson, # 7 Summons Summons Osuna, # 8 Summons Summons Lynch, # 9 Summons Summons Clark)(Adams, Matt) (Entered: 09/14/2016)

Judge James L. Robart and Hon. Brian A Tsuchida added. (ST) (Entered: 09/15/2016)

2 Summons electronically issued as to defendant(s) Nathalie Asher, Lowell Clark, Jeh Johnson, Loretta E. Lynch, Juan P. Osuna, Sarah R Saldana. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons)(ST) (Entered: 09/15/2016)

NOTICE TO FILER: Upon case opening, the filer is responsible for entering party text exactly as it appears on the complaint. For example, "Secretary of the Department of Homeland Security" should have been added as party text for Jeh Johnson . In addition, the parties roles should have been entered as Petitioner and Respondent. If you have questions about party text or party roles, please refer to the Attorney's Guide to Opening a Civil Case on the court's website at wawd.uscourts.gov. The docket has been corrected. Thank you. (ST) (Entered: 09/15/2016)

09/21/2016
10/19/2016 10/19/2016
10/20/2016 10/20/2016 10/20/2016 10/20/2016 10/20/2016 10/28/2016 10/31/2016 10/31/2016

3 SERVICE ORDER by Hon. Brian A Tsuchida. On or before October 21, 2016, the petitioner shall file a motion for class certification or the parties shall file a joint status report. Counsel for petitioner shall inform the Court immediately should the petitioner decides not to seek class certification. If petitioner's custody status changes at any point, the parties shall file a status update with the Court as soon as possible and no later than 14 days after the change. (ST) (Entered: 09/22/2016)
4 NOTICE of Appearance by attorney Gladys M. Steffens Guzman on behalf of Respondents Nathalie Asher, Lowell Clark, Jeh Johnson, Loretta E. Lynch, Juan P. Osuna, Sarah R Saldana. (Steffens Guzman, Gladys) (Entered: 10/19/2016)
5 MOTION to Stay re 1 Petition for Writ of Habeas Corpus, 3 Order,, by Respondents Nathalie Asher, Lowell Clark, Jeh Johnson, Loretta E. Lynch, Juan P. Osuna, Sarah R Saldana. (Attachments: # 1 Proposed Order) Noting Date 11/4/2016, (Steffens Guzman, Gladys) (Entered: 10/19/2016)
6 MOTION to Certify Class by Petitioner Arturo Martinez Banos. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 11/11/2016, (Adams, Matt) (Entered: 10/20/2016)
7 DECLARATION of Trina Realmuto filed by Petitioner Arturo Martinez Banos re 6 MOTION to Certify Class (Attachments: # 1 Exhibit Exh. A)(Adams, Matt) (Entered: 10/20/2016)
8 DECLARATION of Timothy Warden-Hertz filed by Petitioner Arturo Martinez Banos re 6 MOTION to Certify Class (Adams, Matt) (Entered: 10/20/2016)
9 DECLARATION of Elizabeth Benki filed by Petitioner Arturo Martinez Banos re 6 MOTION to Certify Class (Adams, Matt) (Entered: 10/20/2016)
10 DECLARATION of Matt Adams filed by Petitioner Arturo Martinez Banos re 6 MOTION to Certify Class (Adams, Matt) (Entered: 10/20/2016)
11 NOTICE of Appearance by attorney Leila Kang on behalf of Petitioner Arturo Martinez Banos. (Kang, Leila) (Entered: 10/28/2016)
12 RESPONSE, by Petitioner Arturo Martinez Banos, to 5 MOTION to Stay re 1 Petition for Writ of Habeas Corpus, 3 Order,, . (Adams, Matt) (Entered: 10/31/2016)
13 MOTION for Extension of Time to Oppose Motion to Certify Class Until Such Time as the Court Adjudicates the Pending Motion to Stay Proceedings by Respondents Nathalie Asher, Lowell Clark, Jeh Johnson, Loretta E. Lynch, Juan P. Osuna, Sarah R Saldana. (Attachments: # 1 Proposed Order) Noting Date 11/11/2016, (Steffens Guzman, Gladys) (Entered: 10/31/2016)

11/04/2016 11/04/2016 11/07/2016
11/07/2016 11/11/2016 11/21/2016 11/28/2016 11/28/2016 11/29/2016 12/01/2016 12/02/2016 12/13/2016

14 REPLY, filed by Respondents Nathalie Asher, Lowell Clark, Jeh Johnson, Loretta E. Lynch, Juan P. Osuna, Sarah R Saldana, TO RESPONSE to 5 MOTION to Stay re 1 Petition for Writ of Habeas Corpus, 3 Order,, (Steffens Guzman, Gladys) (Entered: 11/04/2016)
15 RESPONSE, by Petitioner Arturo Martinez Banos, to 13 MOTION for Extension of Time to Oppose Motion to Certify Class Until Such Time as the Court Adjudicates the Pending Motion to Stay Proceedings. (Adams, Matt) (Entered: 11/04/2016)
16 MOTION to Dismiss All Individual Claims by Respondents Nathalie Asher, Lowell Clark, Jeh Johnson, Loretta E. Lynch, Juan P. Osuna, Sarah R Saldana. (Attachments: # 1 Exhibit A, # 2 Exhibit A continued, # 3 Proposed Order) Noting Date 12/2/2016, (Steffens Guzman, Gladys) (Entered: 11/07/2016)
17 RESPONSE, by Respondents Nathalie Asher, Lowell Clark, Jeh Johnson, Loretta E. Lynch, Juan P. Osuna, Sarah R Saldana, to 6 MOTION to Certify Class . Oral Argument Requested. (Steffens Guzman, Gladys) (Entered: 11/07/2016)
18 REPLY, filed by Petitioner Arturo Martinez Banos, TO RESPONSE to 6 MOTION to Certify Class (Kang, Leila) (Entered: 11/11/2016)
19 ORDER by Hon. Brian A Tsuchida denying as moot Government's 13 Motion for Extension of Time to oppose Mr. Martinez's motion for class certification. (AD) (Entered: 11/21/2016)
20 NOTICE of Appearance by attorney Glenda Melinda Aldana Madrid on behalf of Petitioner Arturo Martinez Banos. (Aldana Madrid, Glenda) (Entered: 11/28/2016)
21 RESPONSE, by Petitioner Arturo Martinez Banos, to 16 MOTION to Dismiss All Individual Claims. Oral Argument Requested. (Aldana Madrid, Glenda) (Entered: 11/28/2016)
22 ORDER denying the Government's 5 Motion to Stay. Signed by Hon. Brian A Tsuchida. (PM) (Entered: 11/29/2016)
23 MOTION for Preliminary Injunction by Petitioner Arturo Martinez Banos. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 12/23/2016, (Aldana Madrid, Glenda) (Entered: 12/01/2016)
24 REPLY, filed by Respondents Nathalie Asher, Lowell Clark, Jeh Johnson, Loretta E. Lynch, Juan P. Osuna, Sarah R Saldana, TO RESPONSE to 16 MOTION to Dismiss All Individual Claims (Steffens Guzman, Gladys) (Entered: 12/02/2016)
25 ORDER SETTING ORAL ARGUMENT ON MOTION FOR CLASS CERTIFICATION AND DIRECTING ADDITIONAL BRIEFING; re Arturo Martinez Banos's 6 MOTION to Certify Class : Motion Hearing set for 2/1/2017 at 10:00 AM in Courtroom 12B before Hon. Brian A Tsuchida by Hon. Brian A Tsuchida. (RS) (Entered:

12/16/2016 12/23/2016 01/09/2017
01/13/2017 01/13/2017 01/13/2017 01/13/2017 01/13/2017 01/20/2017 01/20/2017 01/23/2017 01/25/2017 01/31/2017

12/13/2016)
26 RESPONSE, by Respondents Nathalie Asher, Lowell Clark, Jeh Johnson, Loretta E. Lynch, Juan P. Osuna, Sarah R Saldana, to 23 MOTION for Preliminary Injunction . (Steffens Guzman, Gladys) (Entered: 12/16/2016)
27 REPLY, filed by Petitioner Arturo Martinez Banos, TO RESPONSE to 23 MOTION for Preliminary Injunction (Adams, Matt) (Entered: 12/23/2016)
28 MOTION for Leave to File Amended Complaint, filed by Petitioner Arturo Martinez Banos. Oral Argument Requested. (Attachments: # 1 Exhibit Amended Complaint with accompanying exhibits, # 2 Proposed Order) Noting Date 1/27/2017, (Aldana Madrid, Glenda) (Entered: 01/09/2017)
29 RESPONSE by Respondents Nathalie Asher, Lowell Clark, Jeh Johnson, Loretta E. Lynch, Juan P. Osuna, Sarah R Saldana re 25 Order Setting Hearing on Motion, (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Steffens Guzman, Gladys) (Entered: 01/13/2017)
30 STIPULATION by parties re 25 Order Setting Hearing on Motion, (Steffens Guzman, Gladys) (Entered: 01/13/2017)
31 RESPONSE, by Petitioner Arturo Martinez Banos, to 6 MOTION to Certify Class . Oral Argument Requested. (Aldana Madrid, Glenda) (Entered: 01/13/2017)
32 Supplemental DECLARATION of Timothy Warden-Hertz filed by Petitioner Arturo Martinez Banos re 6 MOTION to Certify Class (Aldana Madrid, Glenda) (Entered: 01/13/2017)
33 Supplemental DECLARATION of Elizabeth Benki filed by Petitioner Arturo Martinez Banos re 6 MOTION to Certify Class (Aldana Madrid, Glenda) (Entered: 01/13/2017)
34 RESPONSE, by Petitioner Arturo Martinez Banos, to 6 MOTION to Certify Class . Oral Argument Requested. (Kang, Leila) (Entered: 01/20/2017)
35 REPLY by Respondents Nathalie Asher, Lowell Clark, Jeh Johnson, Loretta E. Lynch, Juan P. Osuna, Sarah R Saldana to 31 Response to Motion (Steffens Guzman, Gladys) (Entered: 01/20/2017)
36 RESPONSE, by Respondents Nathalie Asher, Lowell Clark, Jeh Johnson, Loretta E. Lynch, Juan P. Osuna, Sarah R Saldana, to 28 MOTION for Leave to File Amended Complaint. (Steffens Guzman, Gladys) (Entered: 01/23/2017)
37 ORDER by Hon. Brian A Tsuchida granting Petitioner's 28 Motion for leave to file an amended complaint; amended complaint due 2/1/2017; striking the 2/1/2017 oral argument 25 ; directing parties to file a Joint Status Report by 2/15/2017. (PM) (Entered: 01/25/2017)
38 AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND

02/03/2017 02/07/2017
02/08/2017 02/13/2017 02/27/2017 02/27/2017
02/27/2017 03/03/2017 03/20/2017

CLASS ACTION COMPLAINT, filed by Arturo Martinez Banos. (Attachments: # 1 Exhibit BIA Order, # 2 Exhibit IJ Orders, # 3 Exhibit Notice of Referral to IJ)(Kang, Leila) (Entered: 01/31/2017)
39 JOINT STATUS REPORT signed by all parties estimated Trial Days: N/A. (Aldana Madrid, Glenda) (Entered: 02/03/2017)
40 ORDER SETTING BRIEFING SCHEDULE; striking plaintiffs' 6 Motion to Certify Class; Plaintiffs to file their amended motion for class certification by 2/9/17, response due 2/27/17 and reply due on noting date of 3/3/17. Defendants' 16 MOTION to Dismiss All Individual Claims is renoted for 3/3/2017. Supplemental brief due 2/13/17, plaintiffs response due 2/27/17 and defendants to file reply by 3/3/17. Clerk to substitute Thomas Homan, Acting Director of US Immigration and Customs Enforcement; John Kelly, Secy of Dept of Homeland Security and Dana Boente, Acting Attorney General of the United States for defendant-respondents Saldana, Johnson and Lynch by Hon. Brian A Tsuchida.(RS) (Entered: 02/07/2017)
41 Amended MOTION to Certify Class , filed by Petitioner Arturo Martinez Banos. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 3/3/2017, (Kang, Leila) (Entered: 02/08/2017)
42 SUPPLEMENT re 16 MOTION to Dismiss All Individual Claims by Respondents Nathalie Asher, Dana J Boente, Lowell Clark, Thomas D Homan, John F. Kelly, Juan P. Osuna (Steffens Guzman, Gladys) (Entered: 02/13/2017)
43 RESPONSE, by Petitioner Arturo Martinez Banos, to 16 MOTION to Dismiss All Individual Claims. (Kang, Leila) (Entered: 02/27/2017)
44 Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM OF NEWLY-NAMED PLAINTIFFS FLORES AND VENTIURA, filed by Respondents Nathalie Asher, Dana J Boente, Lowell Clark, Thomas D Homan, John F Kelly, Juan P. Osuna. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Proposed Order) Noting Date 3/24/2017, (Steffens Guzman, Gladys) (Entered: 02/27/2017)
45 RESPONSE, by Respondents Nathalie Asher, Dana J Boente, Lowell Clark, Thomas D Homan, John F Kelly, Juan P. Osuna, to 41 Amended MOTION to Certify Class . (Steffens Guzman, Gladys) (Entered: 02/27/2017)
46 REPLY, filed by Petitioner Arturo Martinez Banos, TO RESPONSE to 41 Amended MOTION to Certify Class (Kang, Leila) (Entered: 03/03/2017)
47 RESPONSE, by Petitioner Arturo Martinez Banos, to 44 Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM OF NEWLY-NAMED PLAINTIFFS FLORES AND VENTIURA. Oral Argument Requested. (Aldana Madrid, Glenda) (Entered: 03/20/2017)

03/24/2017 03/29/2017 04/19/2017 04/19/2017 04/21/2017 05/03/2017 07/07/2017 07/11/2017
07/11/2017

48 REPLY, filed by Respondents Nathalie Asher, Dana J Boente, Lowell Clark, Thomas D Homan, John F Kelly, Juan P. Osuna, TO RESPONSE to 44 Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM OF NEWLY-NAMED PLAINTIFFS FLORES AND VENTIURA (Steffens Guzman, Gladys) (Entered: 03/24/2017)
49 REPORT AND RECOMMENDATION by Hon. Brian A Tsuchida re Government's 16 First Motion to Dismiss and 44 Second Motion to Dismiss. Objections to R&R due by 4/19/2017, Noting Date 4/21/2017. (Attachments: # 1 R&R Proposed Order) (PM) (Entered: 03/29/2017)
50 OBJECTIONS by Respondents Nathalie Asher, Dana J Boente, Lowell Clark, Thomas D Homan, John F Kelly, Juan P. Osuna to 49 Report and Recommendations. Noting Date 4/21/2017, (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Steffens Guzman, Gladys) (Entered: 04/19/2017)
***Motion terminated: 49 REPORT AND RECOMMENDATIONS re 16 MOTION to Dismiss All Individual Claims filed by Nathalie Asher, Juan P. Osuna, Dana J Boente, John F Kelly, Lowell Clark, Thomas D Homan, 44 Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. (SWT) (Entered: 04/20/2017)
Noting Date Reset re 50 OBJECTIONS by Respondents Nathalie Asher, Dana J Boente, Lowell Clark, Thomas D Homan, John F Kelly, Juan P. Osuna to Report and Recommendations: Noting Date 5/3/2017, reset pursuant to the Report and Recommendation (Dkt. # 49 ). (AD) (Entered: 04/21/2017)
51 RESPONSE to 50 OBJECTIONS by Respondents Nathalie Asher, Dana J Boente, Lowell Clark, Thomas D Homan, John F Kelly, Juan P. Osuna to 49 Report and Recommendations. filed by Petitioner Arturo Martinez Banos et al. (Kang, Leila) (Entered: 05/03/2017)
52 NOTICE of Supplemental Authority by Petitioner Arturo Martinez Banos (Attachments: # 1 Exhibit)(Aldana Madrid, Glenda) (Entered: 07/07/2017)
53 ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATIONS re 49 Report and Recommendations, 50 Objections to Report and Recommendation ; granting Defendants' 16 First Motion to Dismiss ; dismissing Mr. Martinez's claims without prejudice and without leave to amend ; striking Defendants' 44 Second Motion to Dismiss without prejudice to renewing ; REFERRING case back to Magistrate Judge Tsuchida for further processings ; directing Clerk to update docket, signed by Judge James L. Robart. (SWT) (Entered: 07/12/2017)
Party James McHenry and Jefferson B. Sessions added. Party Dana J Boente (Acting Attorney General of the United States ) and Juan P. Osuna (Director of Executive Office for Immigration Review)
terminated. (See 53 Order) (SWT) (Entered: 07/12/2017)

07/12/2017 07/24/2017 07/25/2017 08/04/2017
08/11/2017 08/11/2017 08/14/2017 08/28/2017 08/31/2017 09/08/2017

54 ORDER directing parties to file Joint Status Report by 8/3/2017, signed by Hon. Brian A Tsuchida. (PM) (Entered: 07/12/2017)
55 JOINT STATUS REPORT signed by all parties (Kang, Leila) (Entered: 07/24/2017)
56 ORDER SETTING BRIEFING SCHEDULE by Hon. Brian A Tsuchida. Defendants' motion to dismiss due 8/4/2017 with a noting date of 9/1/2017. Clerk directed to RE-NOTE plaintiffs' 23 MOTION for Preliminary Injunction and 41 Amended MOTION for class certification: Noting Date 9/1/2017. (PM) (Entered: 07/25/2017)
57 Amended MOTION to Dismiss All of Remaining PetitionersPlaintiffs' Individual Claims, filed by Respondents Nathalie Asher, Dana J Boente, Lowell Clark, Thomas D Homan, John F Kelly, James McHenry, Juan P. Osuna, Jefferson B. Sessions. (Attachments: # 1SEALED Exhibit A, # 2SEALED Exhibit B, # 3 Exhibit C, # 4 Proposed Order) Noting Date 9/1/2017, (Steffens Guzman, Gladys) Modified on 8/11/2017 to seal per phone request from counsel. (PM). (Entered: 08/04/2017)
NOTICE of Docket Text Modification re 57 Amended MOTION to Dismiss All of Remaining Petitioners-Plaintiffs' Individual Claims : SEALED Exhibit A and B to Amended Motion to Dismiss per phone request. Counsel will file a motion to seal. (PM) (Entered: 08/11/2017)
58 Stipulated MOTION to Seal Exhibits A and B in support of Respondents' Motion to Amend, filed by Respondents Nathalie Asher, Thomas D Homan, John F Kelly, James McHenry, Juan P. Osuna, Jefferson B. Sessions. (Attachments: # 1 Proposed Order) Noting Date 8/25/2017, (Steffens Guzman, Gladys) (Entered: 08/11/2017)
59 ORDER granting Defendants-Respondents' unopposed 58 motion to seal and directing the Clerk to maintain the seal on Docket Nos. 57 -1 and 57 -2. Signed by Hon. Brian A Tsuchida. (PM) (Entered: 08/14/2017)
60 RESPONSE, by Petitioners Edwin Flores Tejada, Arturo Martinez Banos, German Ventura Hernandez, to 57 Amended MOTION to Dismiss All of Remaining Petitioners-Plaintiffs' Individual Claims. Oral Argument Requested. (Attachments: # 1 Exhibit)(Aldana Madrid, Glenda) (Entered: 08/28/2017)
61 REPLY, filed by Respondents Nathalie Asher, Dana J Boente, Lowell Clark, Thomas D Homan, John F Kelly, James McHenry, Juan P. Osuna, Jefferson B. Sessions, TO RESPONSE to 57 Amended MOTION to Dismiss All of Remaining Petitioners-Plaintiffs' Individual Claims (Steffens Guzman, Gladys) (Entered: 08/31/2017)
62 ORDER DIRECTING SUPPLEMENTAL BRIEFING; plaintiffs' brief due 9/25/17; govt's response due 10/4/17; plaintiffs' reply due 10/6/17; directing clerk to renote 57 Amended MOTION to Dismiss

09/13/2017 09/25/2017 10/04/2017
10/06/2017 10/17/2017 11/01/2017 11/15/2017
12/11/2017 12/13/2017

All of Remaining Petitioners-Plaintiffs' Individual Claims, 23 MOTION for Preliminary Injunction , 41 Amended MOTION to Certify Class ; Noting Date 10/6/2017, by Hon. Brian A Tsuchida. (RS) (Entered: 09/08/2017)
63 ORDER denying in part with prejudice and in part without prejudice Plaintiffs' 23 Motion for Preliminary Injunction. Signed by Judge James L. Robart. (PM) (Entered: 09/13/2017)
64 BRIEF re 62 Order to Re-Note Motion, by Petitioners Edwin Flores Tejada, Arturo Martinez Banos, German Ventura Hernandez (Kang, Leila) (Entered: 09/25/2017)
65 RESPONSIVE BRIEF re 62 Order to Re-Note Motion, 64 Brief by Respondents Nathalie Asher, Dana J Boente, Lowell Clark, Thomas D Homan, John F Kelly, James McHenry, Juan P. Osuna, Jefferson B. Sessions. (Attachments: # 1 Exhibit A)(Steffens Guzman, Gladys) (Entered: 10/04/2017)
66 REPLY BRIEF re 64 Brief, 65 Brief - Responsive, by Petitioners Edwin Flores Tejada, Arturo Martinez Banos, German Ventura Hernandez. (Kang, Leila) (Entered: 10/06/2017)
67 REPORT AND RECOMMENDATION by Hon. Brian A Tsuchida re Government's 57 Amended MOTION to Dismiss and plaintiffs' 41 Amended MOTION for Class Certification. Objections to R&R due by 11/1/2017, Noting Date 11/3/2017, (Attachments: # 1 Proposed Order on R&R) (PM) (Entered: 10/17/2017)
68 OBJECTIONS by Respondents Nathalie Asher, Dana J Boente, Lowell Clark, Thomas D Homan, John F Kelly, James McHenry, Juan P. Osuna, Jefferson B. Sessions to 67 Report and Recommendations,. Noting Date 11/15/2017, (Steffens Guzman, Gladys) (Entered: 11/01/2017)
69 RESPONSE to 68 OBJECTIONS by Respondents Nathalie Asher, Dana J Boente, Lowell Clark, Thomas D Homan, John F Kelly, James McHenry, Juan P. Osuna, Jefferson B. Sessions to 67 Report and Recommendations,. filed by Petitioners Edwin Flores Tejada, Arturo Martinez Banos, German Ventura Hernandez (Kang, Leila) (Entered: 11/15/2017)
70 ORDER ADOPTING REPORT AND RECOMMENDATION 67 in its entirety. Signed by Judge James L. Robart. (PM) (Entered: 12/11/2017)
71 MINUTE ORDER authorized by Judge James L. Robart. On December 11, 2017, the court issued an order adopting the report and recommendation of the Honorable Brian A. Tsuchida. (Order (Dkt. #
70 ).) Any dispositive motions shall be filed within 30 days of the date of the entry of that order. This matter is RE-REFERRED to Judge Tsuchida for further proceedings. (PM) (Entered: 12/13/2017)

12/14/2017 12/27/2017 12/28/2017
01/08/2018 01/12/2018 01/23/2018 02/07/2018 02/21/2018

72 MOTION for Summary Judgment , filed by Petitioners Edwin Flores Tejada, Arturo Martinez Banos, German Ventura Hernandez. (Attachments: # 1 Proposed Order Proposed Order) Noting Date 1/5/2018, (Adams, Matt) (Entered: 12/14/2017)
73 MOTION for Extension of Time , filed by Respondents Nathalie Asher, Dana J Boente, Lowell Clark, Thomas D Homan, John F Kelly, James McHenry, Juan P. Osuna, Jefferson B. Sessions. Noting Date 12/27/2017, (Steffens Guzman, Gladys) (Entered: 12/27/2017)
74 STIPULATION AND ORDER re Petitioners' 72 MOTION for Summary Judgment . The Court hereby extends DefendantsRespondents' deadline to cross-move for summary judgment and oppose Plaintiffs-Petitioners' motion for summary judgment to Monday, January 8, 2018. The motions are re-noted for consideration for Friday, January 12, 2018, and any opposition to DefendantsRespondents' cross-motion for summary judgment shall be filed on that date. Signed by Judge James L. Robart. (TH) (Entered: 12/28/2017)
75 Cross MOTION for Summary Judgment and Opposition to Petitioners' Motion for Summary Judgment, filed by Respondents Nathalie Asher, Dana J Boente, Lowell Clark, Thomas D Homan, John F Kelly, James McHenry, Juan P. Osuna, Jefferson B. Sessions. (Attachments: # 1 Proposed Order) Noting Date 1/12/2018, (Steffens Guzman, Gladys) (Entered: 01/08/2018)
76 RESPONSE, by Petitioners Edwin Flores Tejada, Arturo Martinez Banos, German Ventura Hernandez, to 75 Cross MOTION for Summary Judgment and Opposition to Petitioners' Motion for Summary Judgment 72 . (Attachments: # 1 Exhibit)(Kang, Leila) Modified on 1/16/2018 to add link to motion for s/j (PM). (Entered: 01/12/2018)
77 REPORT AND RECOMMENDATION signed by Hon. Brian A Tsuchida re: Petitioners' 72 MOTION for Summary Judgment and Respondents' 75 Cross MOTION for Summary Judgment. Objections to R&R due by 2/7/2018, Noting Date 2/9/2018, (Attachments: # 1 Proposed Order on R&R, # 2 Proposed Judgment R&R) (PM) (Entered: 01/23/2018)
78 OBJECTIONS by Respondents Nathalie Asher, Dana J Boente, Lowell Clark, Thomas D Homan, John F Kelly, James McHenry, Juan P. Osuna, Jefferson B. Sessions to 77 Report and Recommendations,, Terminate Motions,. Noting Date 2/23/2018, (Steffens Guzman, Gladys) (Entered: 02/07/2018)
79 RESPONSE to 78 OBJECTIONS by Respondents Nathalie Asher, Dana J Boente, Lowell Clark, Thomas D Homan, John F Kelly, James McHenry, Juan P. Osuna, Jefferson B. Sessions to 77 Report and Recommendations,, Terminate Motions,. filed by Petitioners Edwin Flores Tejada, Arturo Martinez Banos, German Ventura Hernandez

03/22/2018 03/22/2018
03/23/2018 04/04/2018 04/04/2018
04/24/2018 04/24/2018 04/25/2018

(Kang, Leila) (Entered: 02/21/2018)
80 NOTICE of Supplemental Authority by Petitioners Edwin Flores Tejada, Arturo Martinez Banos, German Ventura Hernandez (Aldana Madrid, Glenda) (Entered: 03/22/2018)
81 NOTICE of Supplemental Authority re 78 OBJECTIONS by Respondents Nathalie Asher, Dana J Boente, Lowell Clark, Thomas D Homan, John F Kelly, James McHenry, Juan P. Osuna, Jefferson B. Sessions to 77 Report and Recommendations,, Terminate Motions,. by Respondents Nathalie Asher, Dana J Boente, Lowell Clark, Thomas D Homan, John F Kelly, James McHenry, Juan P. Osuna, Jefferson B. Sessions (Attachments: # 1 Exhibit)(Steffens Guzman, Gladys) (Entered: 03/22/2018)
82 NOTICE of Supplemental Authority re 79 Response to Objections to R&R, by Petitioners Edwin Flores Tejada, Arturo Martinez Banos, German Ventura Hernandez (Attachments: # 1 Exhibit)(Aldana Madrid, Glenda) (Entered: 03/23/2018)
83 ORDER ADOPTING REPORT AND RECOMMENDATION 77 in its entirety. Signed by Judge James L. Robart. (PM) (Entered: 04/04/2018)
84 JUDGMENT BY COURT: The Report and Recommendation is
adopted and approved. (See Order (Dkt. # 83 ).) Plaintiff Edwin Flores Tejada's 72 motion for summary judgment is granted in part and denied in part. (See id.) Defendants Nathalie Asher, Lowell Clark, Thomas D. Homan, John F. Kelly, James McHenry, and Jefferson B. Sessions's 75 motion for summary judgment is granted in part and denied in part. (See id.) Injunctive relief is granted in Plaintiff Edwin Flores Tejada and the class members' favor. (See id.) (PM) (Entered: 04/05/2018)
85 NOTICE of Appearance by attorney Sairah G Saeed on behalf of Respondents Nathalie Asher, Lowell Clark, Thomas D Homan, John F Kelly, James McHenry, Jefferson B. Sessions. (Saeed, Sairah) (Entered: 04/24/2018)
86 Stipulated MOTION TO EXTEND TIME FOR RESPONDENTS TO HOLD BOND HEARINGS AND FILE STATUS REPORT, filed by Respondents Nathalie Asher, Lowell Clark, Thomas D Homan, John F Kelly, James McHenry, Jefferson B. Sessions. Noting Date 4/24/2018, (Saeed, Sairah) (Entered: 04/24/2018)
87 ORDER granting 86 Stipulated Motion to Extend Time for Respondents to Hold Bond Hearings and File Status Report. The new deadlines shall be May 7, 2018, for Respondents to conduct bond hearings for currently-eligible class members and May 11, 2018, for Respondents to file the directed report and list with the Court in accordance with the 77 Report and Recommendation. Signed by Judge James L. Robart. (PM) (Entered: 04/25/2018)

05/11/2018 05/11/2018 05/18/2018 05/18/2018 05/24/2018 05/30/2018 05/31/2018 04/04/2019
04/05/2019 04/08/2019

88 STATUS REPORT by Respondents Nathalie Asher, Lowell Clark, Thomas D Homan, John F Kelly, James McHenry, Jefferson B. Sessions (Attachments: # 1 Exhibit Bostock Declaration, # 2 Exhibit Neifert Declaration, # 3 Exhibit McDowell Declaration)(Saeed, Sairah) (Entered: 05/11/2018)
89 SEALED DOCUMENT by Respondents Nathalie Asher, Lowell Clark, Thomas D Homan, John F Kelly, James McHenry, Jefferson B. Sessions re 77 Report and Recommendations,, Terminate Motions, 83
Order on Report and Recommendation, 84 Judgment by Court,, 88 Status Report, (Saeed, Sairah) (Entered: 05/11/2018)
90 Stipulated MOTION for Protective Order , filed by Respondents Nathalie Asher, Lowell Clark, Thomas D Homan, John F Kelly, James McHenry, Jefferson B. Sessions. (Attachments: # 1 Proposed Order Proposed Stipulated Protective Order) Noting Date 5/18/2018, (Saeed, Sairah) (Entered: 05/18/2018)
91 ERRATA re 90 Stipulated MOTION for Protective Order to Replace ECF No. 90-1 by Respondents Nathalie Asher, Lowell Clark, Thomas D Homan, John F Kelly, James McHenry, Jefferson B. Sessions (Attachments: # 1 Proposed Order Stipulated Protective Order)(Saeed, Sairah) (Entered: 05/18/2018)
92 PROTECTIVE ORDER Governing Items Disclosed by Respondents to Comply with the Court's Final Order Granting Injunctive Relief re parties' 90 Stipulated MOTION, by Judge James L. Robart. (SWT) (Entered: 05/25/2018)
93 NOTICE OF APPEAL (18-35460) to Ninth Circuit re 83 Order on Report and Recommendation, 84 Judgment by Court,, by Respondents Nathalie Asher, Lowell Clark, Thomas D Homan, James McHenry, Jefferson B. Sessions. (Saeed, Sairah) Modified on 6/1/2018 ADD CCA #(SG). (Entered: 05/30/2018)
94 TIME SCHEDULE ORDER (18-35460) as to 93 Notice of Appeal filed by Nathalie Asher, Jefferson B. Sessions, James McHenry, Lowell Clark, Thomas D Homan (SG) (Entered: 06/01/2018)
95 MOTION for Relief from Order (Reporting Requirement) under Rule 60, filed by Respondents Nathalie R Asher, Dana J Boente, Lowell Clark, Thomas D Homan, John F Kelly, James McHenry, Juan P. Osuna, Jefferson Beauregard Sessions, III. (Attachments: # 1 Proposed Order) Noting Date 4/4/2019, (Steffens Guzman, Gladys) (Entered: 04/04/2019)
Noting date for Respondents' 95 MOTION for Relief from Order (Reporting Requirement) under Rule 60 is RESET to 4/19/2019 pursuant to LCR 7(d)(3) per direction of chambers. (SWT) (Entered: 04/05/2019)
96 NOTICE of Appearance by attorney Aaron Korthuis on behalf of Petitioners Edwin Flores Tejada, Arturo Martinez Banos, German

04/15/2019 04/15/2019 04/19/2019
06/04/2019
12/13/2019 12/23/2019 12/26/2019 01/02/2020 04/07/2020
06/01/2020

Ventura Hernandez. (Korthuis, Aaron) (Entered: 04/08/2019)
97 RESPONSE, by Petitioners Edwin Flores Tejada, Arturo Martinez Banos, German Ventura Hernandez, to 95 MOTION for Relief from Order (Reporting Requirement) under Rule 60. (Kang, Leila) (Entered: 04/15/2019)
98 DECLARATION of Sydney Maltese filed by Petitioners Edwin Flores Tejada, Arturo Martinez Banos, German Ventura Hernandez re 95 MOTION for Relief from Order (Reporting Requirement) under Rule 60 (Attachments: # 1 Exhibit A)(Kang, Leila) (Entered: 04/15/2019)
99 REPLY, filed by Respondents Nathalie R Asher, Dana J Boente, Lowell Clark, Thomas D Homan, John F Kelly, James McHenry, Juan P. Osuna, Jefferson Beauregard Sessions, III, TO RESPONSE to 95 MOTION for Relief from Order (Reporting Requirement) under Rule 60 (Attachments: # 1 Exhibit A - Declaration, # 2 Exhibit B Declaration)(Steffens Guzman, Gladys) (Entered: 04/19/2019)
100 ORDER deferring consideration of Defendants' 95 Rule 60 Motion for Relief from Court's Final order. Signed by Judge James L. Robart. (SWT) (Elizabeth Godfrey, Kevin McAleenan and William Barr added. Jefferson Beauregard Sessions, III, Nathalie R Asher and John F Kelly terminated.) (Entered: 06/04/2019)
101 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Leila Kang for Petitioners Edwin Flores Tejada, Arturo Martinez Banos, German Ventura Hernandez. (Kang, Leila) (Entered: 12/13/2019)
102 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Sairah G Saeed for Respondents William Barr, Lowell Clark, Elizabeth Godfrey, Thomas D Homan, Kevin K McAleenan, James McHenry. (Saeed, Sairah) (Entered: 12/23/2019)
Party Chad F Wolf added per FRCP 25(d) re: footnote in Notice of Withdrawal 102 . (PM) (Entered: 12/26/2019)
103 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Glenda Melinda Aldana Madrid (Adams, Matt) (Entered: 01/02/2020)
104 OPINION FROM USCA (18-35460) (NOT THE MANDATE) as to 93 Notice of Appeal, filed by Jefferson Beauregard Sessions, III, Nathalie R Asher, James McHenry, Lowell Clark, Thomas D Homan. AFFIRMED in part, REVERSED and VACATED in part, and REMANDED. Each party shall bear its own costs. (CDA) (Entered: 04/08/2020)
105 MANDATE OF USCA (18-35460) as to 93 Notice of Appeal, filed by Jefferson Beauregard Sessions, III, Nathalie R Asher, James McHenry, Lowell Clark, Thomas D Homan, 104 Memorandum/Opinion from USCA,. The Judgment from USCA takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the

06/12/2020 06/24/2020 06/25/2020 10/16/2020 10/20/2020
10/22/2020

Federal Rules of Appellate Procedure. AFFIRMED in part, REVERSED and VACATED in part, and REMANDED(CDA)cc Case Admins (Entered: 06/01/2020)
106 ORDER re 105 Mandate of USCA, 104 Memorandum/Opinion from USCA. The court ORDERS the parties to file, within 14 days of the filing date of this order, a joint status report proposing how the court should proceed on remand. Signed by Judge James L. Robart. (PM) (Entered: 06/12/2020)
107 Joint Stipulated MOTION to STAY all proceedings until September 5, 2020, filed by Respondents William Barr, Lowell Clark, Elizabeth Godfrey, Thomas D Homan, Kevin K McAleenan, James McHenry, Defendant Chad F Wolf. (Attachments: # 1 Proposed Order) Noting Date 6/24/2020, (Steffens Guzman, Gladys) (Entered: 06/24/2020)
108 ORDER granting Parties' 107 Stipulated Motion to Stay Proceedings. Proceedings in this case are stayed until September 5, 2020. Joint Status Report due by 9/5/2020. Signed by Judge James L. Robart. (PM) (Entered: 06/25/2020)
109 SHOW CAUSE MINUTE ORDER entered upon the authority of Judge James L. Robart -- Counsel show cause by 10/23/2020, why this action should not be dismissed for failing to comply with Order requiring Status Report by 9/5/2020. (AD) (Entered: 10/16/2020)
110 RESPONSE TO ORDER TO SHOW CAUSE by Respondents Nathalie R Asher, William Barr, Dana J Boente, Lowell Clark, Elizabeth Godfrey, Thomas D Homan, John F Kelly, Kevin K McAleenan, James McHenry, Juan P. Osuna, Jefferson Beauregard Sessions, III, Defendant Chad F Wolf re: 109 Order to Show Cause (Steffens Guzman, Gladys) (Entered: 10/20/2020)
111 MINUTE ORDER entered upon the authority of Judge James L. Robart -- This case is STAYED pursuant to the parties' Joint Status Report (Dkt. # 110 ). The parties are ORDERED to file another Joint Status Report two weeks after final action from the Supreme Court in Barr v. Aleman Gonzalez, No. 20-322. (AD) (Entered: 10/22/2020)

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 Case 2:16-cv-01454 Document 1 Filed 09/14/16 Page 1 of 23

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

FOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 9

Arturo MARTINEZ BAÑOS, on behalf of

10 himself as an individual and on behalf of

others similarly situated,

Civil Action No. _____________

11

Plaintiff-Petitioner,

Agency No. A 089 091 010

12

v.

13

PETITION FOR WRIT OF HABEAS

Nathalie ASHER, Field Office Director;

CORPUS AND CLASS ACTION

14 Sara R. SALDAÑA, Director, Immigration COMPLAINT

and Customs Enforcement; Jeh 15 JOHNSON, Secretary of the

Department of Homeland Security; 16 Loretta E. LYNCH, Attorney General

of the United States; Juan P. OSUNA, 17 Director of Executive Office for Immigration

Review; Lowell CLARK, Warden, 18

Defendants-Respondents. 19

I. Introduction 20

1. Plaintiff-Petitioner Arturo Martineos (“Mr. Martinez”) and the class he seeks to 21

represent (“Plaintiffs”) are subjected to unlawful and prolonged detention, without an 22

opportunity for a custody hearing as a result of Defendants’ determination that Immigration 23

PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT – 1

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:16-cv-01454 Document 1 Filed 09/14/16 Page 2 of 23

1 Judges do not have jurisdiction to conduct custody hearings (also known as bond hearings) for

2 persons fleeing persecution and torture, who are placed in “withholding only” proceedings

3 under 8 C.F.R. § 1208.31(e).

4

2. Defendants’ erroneous interpretation of the statute directly flouts controlling case

5 law from the Ninth Circuit Court of Appeals, making clear that persons in immigration

6 proceedings who face prolonged detention—detention of six months or longer—are entitled to

7 a custody hearing. See Rodriguez v. Robbins (Rodriguez III), 804 F.3d 1060 (9th Cir. 2015),

8 cert. granted sub nom. Jennings v. Rodriguez, 136 S. Ct. 2489 (2016); Diouf v.

9 Napolitano (Diouf II ), 634 F.3d 1081 (9th Cir. 2011); Casas–Castrillon v. Department of

10 Homeland Security, 535 F.3d 942 (9th Cir.2008); Prieto–Romero v. Clark, 534 F.3d 1053,

11 1059 (9th Cir. 2008).

12

3. Plaintiffs are being unlawfully denied the opportunity to even seek a custody

13 redetermination from a neutral arbiter who determines whether that individual presents a flight

14 risk or threat to the community, or whether the noncitizen is entitled to be released during the

15 lengthy immigration proceedings.

16

4. There is no legal authority for Defendants’ policy and practice of denying Plaintiffs,

17 noncitizens in withholding only proceedings, custody hearings before an Immigration Judge

18 when faced with prolonged detention, regardless of which immigration statute authorizes the

19 initial detention. See Rodriguez v. Robbins (Rodriguez II), 715 F.3d 1127, 1139 (9th Cir. 2013)

20 (concluding that as suggested by Diouf II, “immigration detention becomes prolonged at the

21 six-month mark regardless of the authorizing statute.”).

22

5. Moreover, Defendants’ interpretation also violates Plaintiffs’ right to obtain a

23 custody hearing before an Immigration Judge when first transferred from the summary

PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT – 2

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:16-cv-01454 Document 1 Filed 09/14/16 Page 3 of 23

1 reinstatement proceedings to withholding only proceedings. Defendants’ assertion that

2 noncitizens in withholding only proceedings are detained based on a final order pursuant to 8

3 U.S.C. § 1231(a) is contrary to Guerra v. Shanahan, -- F.3d --, 2016 WL 4056035 (2d Cir. July

4 29, 2016), the only federal court of appeals decision squarely addressing this issue.

5

6. Rejecting Defendants’ position, the Second Circuit determined that persons in

6 withholding only proceedings are detained under 8 U.S. C. § 1226(a), as opposed to § 1231(a).

7 This analysis is critical as it clarifies that Plaintiffs do not need to first suffer through six

8 months of detention before obtaining a custody hearing from an Immigration Judge. Instead,

9 once Defendants have referred Plaintiffs to withholding only proceedings, Plaintiffs are

10 immediately eligible to request a custody hearing pursuant to 8 C.F.R. § 1236.1(d).

11

7. While the Ninth Circuit has not yet squarely addressed this issue, several of its

12 decisions strongly reinforce the Second Circuit’s analysis. See Rodriguez III, 804 F.3d at 1086

13 (where immigration proceedings are still pending, including administrative or judicial review,

14 “the non-citizen has not been ‘ordered removed,’ and the removal period has not begun, so §

15 1231(a) is inapplicable” (citing Owino v. Napolitano, 575 F.3d 952, 955 (9th Cir.

16 2009) (“[W]hile administrative proceedings are pending on remand, Owino will not be subject

17 to a final order of removal, so § 1231 cannot apply.”))); Ortiz–Alfaro v. Holder, 694 F.3d 955,

18 958 (9th Cir. 2012) (holding that, in determining whether the Court has jurisdiction over a

19 petition for review, where noncitizen was placed in withholding only proceedings, there is no

20 final administrative order until after the IJ and BIA complete withholding only proceedings and

21 any administrative appeal).

22

8. Defendants preclude Plaintiffs from obtaining custody hearings by refusing to

23 acknowledge that noncitizens in withholding only proceedings are detained pursuant to 8

PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT – 3

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:16-cv-01454 Document 1 Filed 09/14/16 Page 4 of 23

1 U.S.C. § 1226, and thus eligible to seek a custody determination from an Immigration Judge

2 pursuant to 8 C.F.R. § 1236.1(d). Instead, Defendants continue to assert that Plaintiffs remain

3 subject to mandatory detention under 8 U.S.C. § 1231(a)(2) because they have final orders of

4 removal, even though Defendants have determined that Plaintiffs possess a reasonable fear of

5 persecution or torture and accordingly have transferred Plaintiffs from summary reinstatement

6 proceedings to withholding only proceedings before the Immigration Judge.

7

9. As a result of Defendants’ policies and practices rejecting the authority of

8 Immigration Judges to conduct custody hearings for Plaintiffs under 8 U.S.C. § 1226, persons

9 in withholding only proceedings remain locked up in federal facilities and private prisons like

10 the Northwest Detention Center for several months, often in excess of a year, and sometimes

11 for multiple years.

12

10. Plaintiffs’ detention without a custody hearing where they have the opportunity to

13 demonstrate that they should be released on bond or on their own recognizance, violates both

14 the Immigration and Nationality Statute, 8 U.S.C. § 1101 et seq., and the United States

15 Constitution.

16

11. Through this action Mr. Martinez, on behalf of himself and proposed Class

17 Members, requests this Court declare that noncitizens placed in withholding only proceedings

18 are not subject to detention under 8 U.S.C. § 1231(a), but instead their detention is authorized

19 by § 1226(a), and enjoin Defendants from denying Plaintiffs custody hearings pursuant to 8

20 C.F.R. § 1236.1(d).

21

12. Moreover, Mr. Martinez requests that this Court provide relief for himself and all

22 Plaintiffs facing prolonged detention, clarifying that pursuant to controlling case law from the

23 Ninth Circuit Court of Appeals, individuals who have been placed in withholding only

PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT – 4

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:16-cv-01454 Document 1 Filed 09/14/16 Page 5 of 23

1 proceedings are entitled to automatic custody hearings once their detention reaches six months,

2 where Defendants bear the burden of justifying the continued detention with clear and

3 convincing evidence.

4

5

II. Parties

6

13. Plaintiff-Petitioner Arturo Martinez Baños is a native and citizen of Mexico, who is

7 currently residing in Othello, Washington. He was previously detained at the Northwest

8 Detention Center in Tacoma, Washington, before he was released on a $10,000 bond.

9

14. Defendant-Respondent Nathalie Asher is the Field Office Director for the Seattle

10 District of Immigration and Customs Enforcement (“ICE”), an agency of the United States.

11 The Field Officer Director enforces all custody determinations of Plaintiff-Petitioner and of

12 other members of the proposed Class. Director Asher thus has custody over Petitioner and

13 proposed Class Members. She is sued in her official capacity.

14

15. Defendant-Respondent Sara R. Saldaña is the Director of Immigration & Customs

15 Enforcement. ICE is the agency within the Department of Homeland Security (“DHS”) that is

16 responsible for apprehension, detention, and removal of noncitizens from the United States.

17 Director Saldaña is a legal custodian of Plaintiff and proposed Class Members. She is sued in

18 her official capacity.

19

16. Defendant-Respondent Jeh Johnson is the Secretary of the Department of Homeland

20 Security, an agency of the United States. He is named in his official capacity.

21

17. Defendant-Respondent Juan P. Osuna is the Director of the Executive Office for

22 Immigration Review (“EOIR”), an agency within the Department of Justice responsible for the

23

PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT – 5

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:16-cv-01454 Document 1 Filed 09/14/16 Page 6 of 23

1 immigration courts and Board of Immigration Appeals (“BIA”). He is named in his official

2 capacity.

3

18. Defendant-Respondent Loretta E. Lynch is the Attorney General of the United

4 States and the most senior official in the Department of Justice. She has the authority to

5 interpret the immigration laws and adjudicate removal cases. By regulation, the Attorney

6 General delegates this responsibility to the immigration courts and the BIA, which are

7 administered by EOIR. She is named in her official capacity.

8

19. Defendant-Respondent Lowell Clark is the warden of the Northwest Detention

9 Center, operated by the GEO Group, Inc., under contract with the Department of Homeland

10 Security. Defendant Clark is sued in his official capacity because he has custody of detained

11 Plaintiffs.

12

III. Custody

13

20. Mr. Martinez is currently released from the Northwest Immigration Detention

14 Center and residing at his home in Othello, Washington. However, as the BIA has sustained

15 Defendant ICE’s appeal and declared that the Immigration Judge had no authority to conduct a

16 custody hearing, Mr. Martinez is subject to immediate detention, at Defendants’ discretion. As

17 such, he remains in the constructive custody of Defendant Asher, who directs ICE detention

18 and enforcement operations in Washington State. Proposed Class Members, who remain in

19 custody at the Northwest Detention Center, are all in the custody of Defendant Asher.

20

IV. Jurisdiction and Venue

21

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

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

23 (“APA”), 5 U.S.C. § 701 et seq.

PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT – 6

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:16-cv-01454 Document 1 Filed 09/14/16 Page 7 of 23

1

22. This Court has jurisdiction under Article 1, section 9, clause 2 of the United States

2 Constitution (Suspension Clause); 28 U.S.C. § 2241 (habeas corpus); 28 U.S.C. §§ 1331 (All

3 Writs Act), 1361, and 1651.

4

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

5 2241, 5 U.S.C. § 702, 28 U.S.C. § 1651, and 28 U.S.C. § 2202.

6

24. Plaintiff-Petitioner has exhausted any and all administrative remedies to the extent

7 required by law.

8

25. Venue is proper in the Western District of Washington under 28 U.S.C. §§ 1391(e)

9 and 1402 where Defendant Asher resides and where custody determinations are made with

10 respect to Plaintiff and proposed Class Members.

11

V. Legal Background

12 Reinstatement Proceedings and Withholding Only Proceedings

13

26. Mr. Martinez and all putative Class Members are persons, who were previously

14 ordered removed, thereafter re-entered the United States without inspection, and were

15 subsequently encountered by U.S. immigration authorities. Consequently, they are all subject

16 to an administrative removal process under 8 U.S.C. § 1231(a)(5) known as a reinstatement of

17 removal.

18

27. Pursuant to the implementing regulations, persons subject to reinstatement of

19 removal are not provided an opportunity to appear in front of an Immigration Judge. 8 C.F.R. §

20 241.8(a). Instead, they are placed through an expedited process where an ICE official issues an

21 order of removal predicated upon the person’s prior removal order and subsequent unlawful

22 reentry. The person is then summarily removed from the country.

23

PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT – 7

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:16-cv-01454 Document 1 Filed 09/14/16 Page 8 of 23

1

28. However, an “exception” to the summary removal process exists for a noncitizen,

2 who expresses a fear of being persecuted or tortured if returned to their home country. 8 C.F.R.

3 § 241.8(e). In such a case the noncitizen is interviewed by an asylum officer to determine if she

4 or he has a reasonable fear of persecution or torture. Id. If an asylum officer determines that the

5 person has a reasonable fear they are then transferred from the summary reinstatement process

6 into full proceedings before an Immigration Judge called “withholding only proceedings.” 8

7 C.F.R. § 208.31(e). See also 8 C.F.R. § 1208.2(c)(3)(i) (while the scope is limited to

8 applications for withholding of removal and relief under the Convention Against Torture, cases

9 referred for withholding only proceedings “shall be conducted in accordance with the same

10 rules of procedure as proceedings under 8 C.F.R. part 240, subpart A.”).

11

29. Because Defendants have already determined that Mr. Martinez and all Plaintiffs

12 have a reasonable fear of persecution or torture, they have all been referred for full proceedings

13 before an Immigration Judge where they have an opportunity to apply for withholding of

14 removal and/or relief under the Convention Against Torture. See 8 C.F.R. § 1208.31(e).

15 Moreover, Plaintiffs have the right to an administrative appeal to the BIA (and thereafter to

16 seek judicial review before the federal court of appeals) if they are not granted either

17 withholding of removal under 8 U.S.C. § 1231(b)(3), or relief under the Convention Against

18 Torture, 8 C.F.R. § 1208.16(c). See 8 C.F.R. § 1208.31(e).

19 Statutory Authority for Detention in Withholding Only Proceedings.

20

30. Notwithstanding the fact that Plaintiffs have been transferred to immigration

21 proceedings before Immigration Judges, Defendants assert that Plaintiffs remain subject to

22 mandatory detention under 8 U.S.C. § 1231(a).

23

PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT – 8

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1

31. Defendants assert that Immigration Judges have no jurisdiction to make custody

2 determinations for persons subject to reinstatement of removal under 8 U.S.C. § 1231(a)(5).

3 Defendants purport to detain persons subject to reinstatement of removal throughout the

4 removal proceeding, relying on the authority of 8 U.S.C. § 1231(a)(2), which requires that

5 noncitizens be detained “[d]uring the removal period.” The statute defines the removal period

6 as beginning on the “date the order of removal becomes administratively final” (unless the

7 person seeks judicial review or is confined by authorities other than immigration officials). 8

8 U.S.C. § 1231(a)(1)(B).

9

32. However, both binding case law and the controlling statute make clear that

10 Plaintiffs are not subject to a final administrative order until the withholding only proceedings

11 are concluded, including any administrative appeal. See Rodriguez III, 804 F.3d at 1086; Ortiz-

12 Alfaro, 694 F.3d at 958; 8 U.S.C. § 1101(a)(47(B) (removal order is not final until both the

13 Immigration Judge and the BIA complete review).

14

33. 8 U.S.C. § 1226 authorizes the detention of a noncitizen “pending a decision on

15 whether the [noncitizen] is to be removed from the United States.” Plaintiffs submit that

16 because withholding of removal proceedings are now pending before the agency, their

17 detention is governed by § 1226, not § 1231(a).

18

34. For a person detained under § 1226, subject to limited exceptions laid out in

19 subsection (c), ICE may detain the noncitizen or release her subject to parole or a bond. If ICE

20 elects to detain the noncitizen, the noncitizen may request a custody redetermination hearing

21 before an Immigration Judge. 8 C.F.R. § 1236.1(d)(1).

22

35. 8 U.S.C. § 1231(a), by contrast, only governs the detention of noncitizens, who are

23 subject to a final order of removal. This section defines a 90-day “removal period” after a

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1 removal order becomes “administratively final”; during the removal period, detention is

2 required. 8 U.S.C. § 1231(a)(1)-(2).

3

36. “Where a [noncitizen] falls within this statutory scheme can affect whether his

4 detention is mandatory or discretionary, as well as the kind of review process available to him

5 if he wishes to contest the necessity of his detention.” Prieto–Romero v. Clark, 534 F.3d 1053,

6 1057 (9th Cir. 2008).

7

37. The Second Circuit is the only Court of Appeals to squarely address whether a

8 person in withholding only proceedings is detained pursuant to § 1226 or § 1231(a). Guerra.

9 In Guerra, the Court of Appeals unequivocally held that § 1226, not § 1231, provides the

10 statutory authority for any detention during withholding only proceedings because there are

11 clearly ongoing administrative proceedings: “8 U.S.C. § 1226(a) permits detention of an

12 [noncitizen] ‘pending a decision on whether the [noncitizen] is to be removed from the United

13 States.’ The statute does not speak to the case of whether the [noncitizen] is theoretically

14 removable but rather to whether the [noncitizen] will actually be removed. An [noncitizen]

15 subject to a reinstated removal order is clearly removable, but the purpose of withholding-only

16 proceedings is to determine precisely whether ‘the [noncitizen] is to be removed from the

17 United States.’ 8 U.S.C. § 1226(a).” Guerra, at *2.

18

38. The Court further explained, “8 U.S.C. § 1226(a) authorizes the detention of

19 [noncitizens] whose removal proceedings are ongoing. By contrast, 8 U.S.C. § 1231(a) is

20 concerned mainly with defining the 90-day removal period during which the Attorney General

21 ‘shall remove the [noncitizen].’” Id. at *3.

22

39. Even prior to the Second Circuit’s decision in Guerra, the Ninth Circuit addressed

23 when the removal order of a person in withholding only proceedings is administratively final

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1 for purposes of seeking judicial review. The Court concluded that “the reinstated removal order

2 does not become final until the reasonable fear of persecution and withholding of removal

3 proceedings are complete.” Ortiz-Alfaro, 694 F.3d at 958. See also Luna-Garcia v. Holder, 777

4 F.3d 1182 (10th Cir. 2015) (same); cf. Chupina v. Holder, 570 F.3d 99, 103-04 (2d Cir. 2009)

5 (agency order is not final where applications for withholding of removal or relief under the

6 Convention Against Torture are pending before the Immigration Judge or the BIA—even if

7 there is no further ability to challenge the finding of removability).

8

40. Defendants contend that the analysis in Ortiz-Alfaro should be limited to

9 determining the finality of a reinstated removal order for purposes of seeking judicial review,

10 and disregarded with respect to determining “the finality of a reinstated removal order with

11 respect to the . . . the source of the detention authority and the Immigration Judge’s jurisdiction

12 to consider a custody redetermination request.” Ex. A BIA Order at 2.

13

41. However, as the Second Circuit succinctly stated, Defendants “point to no authority

14 for this proposition, however, and we have never recognizes such ‘tiers’ of finality. Moreover,

15 the bifurcated definition of finality urged upon us runs counter to principles of administrative

16 law which counsel that to be final, an agency action must ‘mark the consummation of the

17 agency’s decisionmaking process.’ U.S. Army Corps of Eng'rs v. Hawkes Co., 136 S.Ct. 1807,

18 1813 (2016) (quoting Bennett v. Spear, 520 U.S. 154, 178 (1997)).” Guerra, at *3.

19

42. While the Ninth Circuit Court of Appeals has not yet directly addressed this issue,

20 decisions from the Western District have split upon whether persons in withholding only

21 proceedings are detained pursuant to § 1226 or § 1231. See Martinez Mendoza v. Asher, C14–

22 0811JCC, Dkt. # 14 (W.D.Wash. Sept. 16, 2014) (individual was detained under § 1226 and

23 entitled to a custody hearing); Acevedo-Rojas v. Clark, No. C14-1323-JLR, 2014 WL 6908540,

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1 at *5 (W.D. Wash. Dec. 8, 2014) (ruling instead that § 1231(a) formed the basis of detention);

2 Giron-Castro v. Asher, No. C14-0867JLR, 2014 WL 8397147, at *2 (W.D. Wash. Oct. 2,

3 2014) (same); Gonzalez v. Asher, 2016 U.S. Dist. LEXIS 29710, *12 (W.D. Wash. Feb. 16,

4 2016) (deciding that the Court need not determine whether noncitizen is detained pursuant to §

5 1226 or § 1231 as petitioner is entitled to bond hearing under either statute because he has been

6 detained by ICE for more than six months).

7

43. However, Acevedo-Rojas and Giron-Castro did not have the benefit of the Second

8 Circuit’s analysis in Guerra. In addition, neither of those cases had the benefit of the Ninth

9 Circuit’s recent opinion in Rodriguez III, in which the Court clarified that there was no need

10 for a separate § 1231(a) prolonged detention subclass, because individuals with pending

11 immigration proceedings (persons in withholding only proceedings) continue to be detained

12 under § 1226: “if a non-citizen has received a stay of removal from the BIA pending further

13 administrative review, then the order of removal is not yet ‘administratively final.’ 8 U.S.C. §

14 1231(a)(1)(B)(i). The non-citizen has not been ‘ordered removed,’ and the removal period has

15 not begun, so § 1231(a) is inapplicable.” Rodriguez III, 804 F.3d at 1086. As such, binding

16 Ninth Circuit case law emphatically reinforces the Second Circuit’s holding in Guerra.

17

44. Because persons in withholding only proceedings are detained under § 1226 and not

18 § 1231 they are immediately eligible to seek a custody hearing before an Immigration Judge.

19 See Guerra, at *2 (“The answer to this question determines whether Guerra's detention is

20 governed by § 1231(a) or instead by § 1226(a), and, in turn, whether he was eligible to be

21 released on bond”).

22

23

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1 Prolonged Detention Is Not Authorized by Either 8 U.S.C. §1226 or §1231

2

45. Even where persons are subject to mandatory detention, the Ninth Circuit has

3 repeatedly made clear that the general immigration statutes do not authorize prolonged

4 detention without a custody hearing. See, e.g., Rodriguez II, 715 F.3d at 1133 (“the canon of

5 constitutional avoidance requires us to construe the government's statutory mandatory

6 detention authority under Section 1226(c) and Section 1225(b) as limited to a six-month

7 period, subject to a finding of flight risk or dangerousness.”).

8

46. There is simply no legal authority for Defendants to justify their refusal to afford

9 Mr. Martinez and proposed Class Members individualized custody hearings when they have

10 been detained for six months. Rather, Defendants continue to flout controlling case law from

11 the Ninth Circuit Court of Appeals. See Rodriguez III, 804 F.3d at 1065 (“This is the latest

12 decision in our decade-long examination of civil, i.e. non-punitive and merely preventative,

13 detention in the immigration context.”).

14

47. In Casas–Castrillon and Prieto–Romero the Ninth Circuit first examined the

15 interplay between § 1226 and § 1231 in removal proceedings. The Court ruled that persons

16 who filed petitions for review and obtained a stay of removal, continued to be detained under §

17 1226—even though the administrative order was now final. See Prieto-Romero, 534 F.3d at

18 1060 (“§ 1231(a) authorizes detention only ‘[d]uring the removal period,’ § 1231(a)(2), and

19 ‘beyond the removal period,’ § 1231(a)(6), it clearly does not provide any authority before the

20 removal period.”); Casas-Castrillon, 535 F.3d at 947 (noncitizen originally detained under

21 mandatory detention provision at § 1226(c) who files petition for review of final administrative

22 order is then detained under discretionary detention provision at § 1226(a), not § 1241(a)).

23

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1

48. The Ninth Circuit next concluded that even where there is already a final order of

2 removal (i.e., there are no longer pending removal proceedings) and thus the noncitizen is

3 detained pursuant to § 1231(a), that such a person is entitled to an individualized custody

4 hearing before an immigration judge when facing prolonged detention. Diouf II, 634 F.3d at

5 1092. The Court of Appeals further made clear that prolonged detention occurs when the

6 noncitizen is detained for six months. Id. at 1091.

7

49. Then in a series of three separate decisions addressing a class action for detainees in

8 the Central District of California facing prolonged detention under the general detention

9 statutes, including 8 U.S.C. §§ 1225(b), 1226, and 1231(a), see Rodriguez v. Hayes (Rodriguez

10 I), 591 F.3d 1105, 1113 (9th Cir. 2010), the Court of Appeals definitively clarified that

11 noncitizens detained pursuant to the general detention statutes are entitled to automatic custody

12 hearings before an Immigration Judge if they are detained for six months or longer. Rodriguez

13 III, 804 F.3d at 1085.

14

50. In addition, in the cases of prolonged immigration detention, the burden of proof

15 transfers to the government, which must then demonstrate with clear and convincing evidence

16 why the noncitizen should not be released. Id. at 1087, citing Singh v. Holder, 638 F.3d 1196,

17 1203, 1208 (9th Cir. 2011).

18

51. Without the benefit of the Court of Appeals’ decisions in Guerra and Rodriguez III,

19 the Western District Court was split on determining the underlying statutory authority for

20 detaining noncitizens in withholding proceedings. But all agreed that, regardless of the

21 authorizing statute, noncitizens are entitled to an individualized bond hearing once they have

22 been detained for six months by immigration authorities. For example, in Giron-Castro this

23 Court granted the habeas petition ordering that the petitioner be granted an individualized bond

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1 hearing with 14 days of the date of the order based on his prolonged detention even though the

2 petitioner was detained under § 1231(a). 2014 WL 8397147, at *1. In Gonzalez this Court held

3 it need not even determine whether the petitioner was detained under § 1226 or § 1231, as

4 either way he was entitled to a bond hearing because he had been detained for more than six

5 months. Gonzalez, 2016 U.S. Dist. LEXIS 29710, *12.

6

7

VI. Factual Allegations

8

52. Plaintiff Martinez is a 36-year-old native and citizen of Mexico who is currently in

9 withholding only proceedings based on his fear of persecution and torture if forcibly returned

10 to Mexico.

11

53. Mr. Martinez first entered the United States around 1997 without any lawful status.

12 Since that time he has lived primarily in Washington State, and currently lives on a small

13 orchard with his former employers, who have taken him in as part of their family. He has

14 worked for or lived with this same family since around 2006.

15

54. Mr. Martinez was placed in removal proceedings and ordered removed after having

16 been convicted of possession of a controlled substance in 2009. He then returned to the United

17 States without permission later in 2009 and was summarily removed. He then reentered

18 without inspection, and in 2012 was convicted of Misprision of a Felony. While he was serving

19 prison time for this conviction, he was accused by fellow defendants of providing information

20 about them to U.S. law enforcement agents.

21

55. In 2013, after completing his sentence, Mr. Martinez was again removed to Mexico.

22 In Mexico, he was kidnapped, beaten, sodomized, and psychologically tortured by uniformed

23

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1 police officers from Petatlan, who held him for ransom, which was ultimately paid by his

2 former employers in Washington State.

3

56. After he was released from this ordeal, he attempted to enter the United States

4 unsuccessfully three times before he was able to evade detection in mid-2013. However, in

5 2014, he was charged with Assault in the fourth degree, which charge was dismissed after Mr.

6 Martinez complied with a Stipulated Order of Continuance.

7

57. In March of 2015, Mr. Martinez was apprehended by ICE and served with a Notice

8 of Intent to Reinstate his 2009 removal order. He was detained at the Northwest Detention

9 Center in Tacoma. He expressed fear of return to Mexico and underwent a Reasonable Fear

10 Interview pursuant to 8 C.F.R. § 208.31(b). The Asylum Office found that Mr. Martinez

11 demonstrated a reasonable fear of torture by the Petatlan police, who previously tortured him

12 with impunity, as well as by the members of the cartel related drug trafficking operation, who

13 suspect Mr. Martinez of providing prejudicial information about them to U.S. law enforcement.

14

58. On October 8, 2015, after Mr. Martinez had been detained in immigration custody

15 for over six months, the Immigration Court conducted a custody hearing, 196 days after Mr.

16 Martinez was first placed in immigration custody.

17

59. Immigration Judge Fitting determined that in light of the ongoing withholding only

18 proceedings based on the asylum officer’s finding that Mr. Martinez possesses a reasonable

19 fear of persecution or torture if returned to Mexico, and his strong community ties, and

20 notwithstanding his past offenses, DHS had failed to carry its burden of demonstrating with

21 clear and convincing evidence that Mr. Martinez presented either a flight risk or a danger to the

22 community. As such, Judge Fitting set a bond in the amount of $10,000, upon payment of

23

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1 which Mr. Martinez was released from the Northwest Detention Center and returned to live at

2 his home, at the residence of his former employer.

3

60. However, ICE filed a notice of appeal to the BIA, challenging the Immigration

4 Judge’s authority to grant a bond to a person like Mr. Martinez, who is currently in withholding

5 only proceedings.

6

61. On June 28, 2016, Mr. Martinez attended his non-detained preliminary withholding

7 hearing at the Seattle Immigration Court. The Immigration Judge scheduled Mr. Martinez’

8 merits hearings for September 28, 2018.

9

62. On July 27, 2016, a three-member panel of the BIA issued a split decision,

10 reversing the Immigration Judge’s custody determination. The majority opinion found that “the

11 Immigration Judge lacked jurisdiction to consider [Mr. Martinez’s] request to be released from

12 custody.” See Exh. A, BIA Order at 1. Specifically the Board found that “[c]ontrary to the

13 respondent’s argument on appeal, the DHS’s detention authority stems from 241(a) of the Act

14 [8 U.S.C. § 1231(a)(1)], not section 236(a) [8 U.S.C. § 1226(a)], because respondent is subject

15 to an administratively final removal order that has been reinstated.” Id.

16

63. Further, the Board found that “[a]n Immigration Judge’s authority to redetermine

17 custody conditions is limited to [noncitizens] who have been issued a Notice to Appear and

18 placed into removal proceedings under section 240 [8 U.S.C. § 1229a].” Finally, the Board

19 acknowledged that “while the United States Court of Appeals for the Ninth Circuit has held

20 that certain [noncitizens] are required to be provided custody redetermination hearings after

21 180 days in detention, [noncitizens] detained under section 241(a) of the Act [8 U.S.C. §

22 1231(a)] are specifically excluded from that class.” Id. at 2.

23

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1

64. The Board vacated the Immigration Judge’s decision granting a $10,000 bond and

2 ordered that “[t]he respondent shall be detained without bond pending proceedings.” Id. at 3.

3

65. In a dissenting opinion Board Member Grant opined that “the clear language in

4 Rodriguez III provides that a [noncitizen] such as [Mr. Martinez], whose removal is subject to

5 further administrative review before an Immigration Judge on his application for withholding

6 of removal, is not being detained pursuant to section 241(a) of the Act and thus is entitled to

7 the bond redetermination hearing mandated by that decision.” Id. at 4.

8

66. As a result of the Board’s decision, Immigration Judges in Tacoma now deny

9 custody redetermination requests by proposed Class Members who have been in detention for

10 more than six months based on Defendants’ interpretation that the Immigration Judges do not

11 have jurisdiction over such requests by persons in withholding only proceedings.

12

67. The Immigration Court in Tacoma now utilizes a bond template sheet that includes

13 a check mark box for denying custody determinations based on “No Jurisdiction” with a

14 category for “Withholding Only Proceedings.” See Exh. B.

15

16

V. Class Action Allegations

17

68. Plaintiff –Petitioner brings this action pursuant to Federal Rules of Civil Procedure

18 23(a) and 23(b) on behalf of himself and all other persons similarly situated. The proposed

19 class is defined as follows:

20

All individuals detained in the Western District of Washington who are

placed in withholding only proceedings under 8 C.F.R. § 1208.31(e) who,

21 1) are thereafter denied an individualized custody determination before

22

an Immigration Judge or,

23

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1

2) on or before six months of civil immigration detention, are not

provided automatic individualized custody hearings where Defendants

2

must justify their continued detention.

3

69. The requirements of Rule 23(a)(1) are met in this case because the class is so

4 numerous that joinder of all members is impracticable. Upon information and belief there are

5 currently over eighty individuals detained at the Northwest Detention Center who fall within

6 the proposed class and several hundred are detained at the Northwest Detention Center over the

7 course of a year. Moreover, the inherent transitory state of the putative Class Members further

8 demonstrates that joinder is impracticable.

9

70. The proposed class meets the commonality requirements of Federal Rule of Civil

10 Procedure 23(a)(2) because the mandatory detention of individuals within the proposed class is

11 the result of Defendants’ unlawful interpretation of the detention statutes and removal

12 provisions at 8 U.S.C. §§ 1226, 1231.

13

71. The proposed class meets the typicality requirements of Federal Rule of Civil

14 Procedure 23(a)(3) because the claims of Plaintiff are typical of the claims of the class.

15 Plaintiff and the class of individuals he seeks to represent have all been subjected to mandatory

16 detention despite being placed into ongoing removal proceedings after asylum officers have

17 determined that they possess a reasonable fear of persecution or torture if returned to their

18 home countries. As such, they are not subject to a final order under 8 U.S.C. § 1231(a) but

19 instead are subject to the detention provisions at § 1226. Moreover, all are similarly “entitled to

20 automatic bond hearings after six months of detention.” Rodriguez III, 804 F.3d at 1085.

21

72. The proposed class meets the requirements of Federal Rule of Civil Procedure

22 23(a)(4) on adequacy of representation. Plaintiff seeks the same relief as the other members of

23 the class, namely the right to an individualized custody determination by an Immigration

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1 Judge, and does not have any interests adverse to those of the class as a whole. In addition, the

2 proposed class is represented by counsel from the Northwest Immigrant Rights Project.

3 Counsel has extensive experience litigating class action lawsuits, including lawsuits on behalf

4 of immigration detainees.

5

73. Finally, the proposed class satisfies Federal Rule of Civil Procedure 23(b)(2)

6 because the immigration authorities have acted on grounds generally applicable to the class in

7 applying an erroneous interpretation of § 1231(a) to members of the proposed class. Thus,

8 final injunctive and declaratory relief is appropriate with respect to the class as a whole. Cf.

9 Rodriguez I, 591 F.3d at 1119-20 (8 U.S.C. § 1252(f) does not bar declaratory relief, nor

10 injunctive relief where “Petitioner here does not seek to enjoin the operation of the immigration

11 detention statutes, but to enjoin conduct it asserts is not authorized by the statutes.”).

12

VI. Claims for Relief

13 First Cause of Action—Violation of 8 U.S.C. § 1226 for failure to Provide Immediate Custody Hearings.
14 74. The foregoing allegations are realleged and incorporated herein.
15 75. 8 U.S.C. § 1226(a) authorizes Defendants to release non-citizens who have pending
16 removal proceedings, including Plaintiff and Class Members who are placed in withholding
17 only proceedings under 8 C.F.R. 1208.31(e), “[e]xcept as provided in [1226] subsection (c).”
18 76. Guerra, Rodriguez III, and Ortiz-Alfaro, all confirm that Plaintiff-Petitioner and
19 putative Class Members are subject to detention under 8 U.S.C. § 1226(a), based on their
20 ongoing immigration proceedings. As they do not have final orders, they are not subject to
21 detention pursuant to § 1231(a).
22

23

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1

77. Defendants’ policy and practice of detaining Class Members without the

2 opportunity for an individualized bond hearing violates 8 U.S.C. § 1226(a), and is therefore

3 unlawful.

4 Second Cause of Action— Violation of 8 U.S.C. § 1101 et seq. for failure to Provide Automatic Custody Determinations at Six Months of Detention.
5 78. The foregoing allegations are realleged and incorporated herein.
6 79. The Due Process Clause of the Fifth Amendment to the United States Constitution
7 requires that detention be reasonably related to its purpose. Prolonged detention without an
8 individualized determination of an individual’s dangerousness or flight risk is constitutionally
9 doubtful. Rodriguez II, 715 F.3d at 1137-38. In order to avoid the constitutional concerns the
10 detention statutes must be construed to contain an implicit reasonable time limitation.
11 Rodriguez III, 804 F.3d at 1079.
12 80. Accordingly, Plaintiff and putative Class Members are all “entitled to automatic
13 bond hearings after six months of detention.” Rodriguez III, 804 F.3d at 1085. Defendants’
14 policy and practice of mandatorily detaining Plaintiff and Class Members who are subjected to
15 prolonged detention violates the clear holdings of the Court of Appeals requiring Defendants to
16 justify prolonged detention beyond six months.
17 Third Cause of Action—Violation of Due Process Clause.
18 81. The foregoing allegations are realleged and incorporated herein.
19 82. The Due Process Clause of the Fifth Amendment to the United States Constitution
20 requires that civil immigration detention be limited to its purpose of preventing flight risk and
21 danger to the community, and is accompanied by strong procedural protections to ensure that
22 detention is serving those goals.
23

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1

83. Mandatory detention is not reasonably related to its purpose when applied to

2 individuals such as Plaintiff-Petitioner and Class Members, who have been placed in full

3 immigration proceedings after being found by asylum officers to have a reasonable fear of

4 persecution or torture pursuant to 8 C.F.R. § 208.31(e), and who retain the right to file an

5 administrative appeal and seek judicial review before the Federal Court of Appeals if they are

6 not granted protection from removal by the Immigration Judge or BIA.

7

84. Defendants’ policy and practice of denying Plaintiff-Petitioner and Putative Class

8 Members individualized custody determinations before an Immigration Judge violates the Due

9 Process Clause of the United States Constitution, and is therefore unlawful.

10

11

VII. Request for Relief

12

Plaintiff-Petitioner requests this Court to grant the following relief:

13

1. Grant a writ of habeas corpus ordering Defendants to refrain from vacating the

14 Immigration Judge’s custody determination for Mr. Martinez;

15

2. Certify this case as a class action lawsuit, as proposed herein, appoint Plaintiff as

16 class representative, and appoint the undersigned counsel as class counsel;

17

3. Declare Defendants’ interpretation of the statute and policy denying Plaintiff and

18 Class Members an opportunity to seek custody hearings under 8 U.S.C. § 1226 as unlawful,

19 and their practice of applying mandatory detention to Plaintiffs in violation of the Immigration

20 and Nationality Act, or in the alternative, the United States Constitution;

21

4. Order Defendants to cease and desist from holding Plaintiffs and Class Members in

22 detention without an individualized custody determination before an Immigration Judge;

23

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5. Order the Defendants to automatically provide individualized custody hearings to

2 all Plaintiffs on or before they have been detained for six months in immigration custody;

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6. Grant an award of attorney’s fees and costs;

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7. Grant such other relief as may be just and reasonable.

5 Dated this 14th day of September, 2016.
6
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NORTHWEST IMMIGRANT RIGHTS PROJECT

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/s/ Matt Adams

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Matt Adams, WSBA No. 28287 9

615 Second Avenue, Suite 400

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Seattle, WA 98104

(206) 957-8611 11

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UNITED STATES DISTRICT COURT

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FOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

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Arturo MARTINEZ BAÑOS, Edwin

10 FLORES TEJADA, and German VENTURA

HERNANDEZ, on behalf of themselves as Civil Action No. 2:16-cv-01454-JLR-BAT

11 individuals and on behalf of others similarly

situated,

Agency Nos.

12

Plaintiffs-Petitioners,

A 089 091 010

13

A 098 225 790

v.

A 206 104 257

14

Nathalie ASHER, Field Office Director;

15 Sara R. SALDAÑA, Director, Immigration

and Customs Enforcement; Jeh 16 JOHNSON, Secretary of the
Department of Homeland Security; 17 Loretta E. LYNCH, Attorney General

AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND CLASS ACTION COMPLAINT

of the United States; Juan P. OSUNA, 18 Director of Executive Office for Immigration

Review; Lowell CLARK, Warden, 19

Defendants-Respondents. 20

I. Introduction 21

1. Plaintiffs-Petitioners Arturo Martinez Baños (“Mr. Martinez”), Edwin Flores Tejada 22

(“Mr. Flores”), German Ventura Hernandez (“Mr. Ventura”), and the class they seek to 23

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1 represent (“Plaintiffs”) are subjected to unlawful and prolonged detention, without an

2 opportunity for a custody hearing as a result of Defendants’ determination that Immigration

3 Judges do not have jurisdiction to conduct custody hearings (also known as bond hearings) for

4 persons fleeing persecution and torture, who are placed in “withholding only” proceedings

5 under 8 C.F.R. § 1208.31(e).

6

2. Defendants’ erroneous interpretation of the statute directly flouts controlling case

7 law from the Ninth Circuit Court of Appeals, making clear that persons in immigration

8 proceedings who face prolonged detention—detention of six months or longer—are entitled to

9 a custody hearing. See Rodriguez v. Robbins (Rodriguez III), 804 F.3d 1060 (9th Cir. 2015),

10 cert. granted sub nom. Jennings v. Rodriguez, 136 S. Ct. 2489 (2016); Diouf v.

11 Napolitano (Diouf II ), 634 F.3d 1081 (9th Cir. 2011); Casas–Castrillon v. Department of

12 Homeland Security, 535 F.3d 942 (9th Cir.2008); Prieto–Romero v. Clark, 534 F.3d 1053,

13 1059 (9th Cir. 2008).

14

3. Plaintiffs are being unlawfully denied the opportunity to even seek a custody

15 redetermination from a neutral arbiter who determines whether that individual presents a flight

16 risk or threat to the community, or whether the noncitizen is entitled to be released during the

17 lengthy immigration proceedings.

18

4. There is no legal authority for Defendants’ policy and practice of denying Plaintiffs,

19 noncitizens in withholding only proceedings, custody hearings before an Immigration Judge

20 when faced with prolonged detention, regardless of which immigration statute authorizes the

21 initial detention. See Rodriguez v. Robbins (Rodriguez II), 715 F.3d 1127, 1139 (9th Cir. 2013)

22 (concluding that as suggested by Diouf II, “immigration detention becomes prolonged at the

23 six-month mark regardless of the authorizing statute.”).

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5. Moreover, Defendants’ interpretation also violates Plaintiffs’ right to obtain a

2 custody hearing before an Immigration Judge when first transferred from the summary

3 reinstatement proceedings to withholding only proceedings. Defendants’ assertion that

4 noncitizens in withholding only proceedings are detained based on a final order pursuant to 8

5 U.S.C. § 1231(a) is contrary to Guerra v. Shanahan, -- F.3d --, 2016 WL 4056035 (2d Cir. July

6 29, 2016), the only federal court of appeals decision squarely addressing this issue.

7

6. Rejecting Defendants’ position, the Second Circuit determined that persons in

8 withholding only proceedings are detained under 8 U.S. C. § 1226(a), as opposed to § 1231(a).

9 This analysis is critical as it clarifies that Plaintiffs do not need to first suffer through six

10 months of detention before obtaining a custody hearing from an Immigration Judge. Instead,

11 once Defendants have referred Plaintiffs to withholding only proceedings, Plaintiffs are

12 immediately eligible to request a custody hearing pursuant to 8 C.F.R. § 1236.1(d).

13

7. While the Ninth Circuit has not yet squarely addressed this issue, several of its

14 decisions strongly reinforce the Second Circuit’s analysis. See Rodriguez III, 804 F.3d at 1086

15 (where immigration proceedings are still pending, including administrative or judicial review,

16 “the non-citizen has not been ‘ordered removed,’ and the removal period has not begun, so §

17 1231(a) is inapplicable” (citing Owino v. Napolitano, 575 F.3d 952, 955 (9th Cir.

18 2009) (“[W]hile administrative proceedings are pending on remand, Owino will not be subject

19 to a final order of removal, so § 1231 cannot apply.”))); Ortiz–Alfaro v. Holder, 694 F.3d 955,

20 958 (9th Cir. 2012) (holding that, in determining whether the Court has jurisdiction over a

21 petition for review, where noncitizen was placed in withholding only proceedings, there is no

22 final administrative order until after the IJ and BIA complete withholding only proceedings and

23 any administrative appeal).

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8. Defendants preclude Plaintiffs from obtaining custody hearings by refusing to

2 acknowledge that noncitizens in withholding only proceedings are detained pursuant to 8

3 U.S.C. § 1226, and thus eligible to seek a custody determination from an Immigration Judge

4 pursuant to 8 C.F.R. § 1236.1(d). Instead, Defendants continue to assert that Plaintiffs remain

5 subject to mandatory detention under 8 U.S.C. § 1231(a)(2) because they have final orders of

6 removal, even though Defendants have determined that Plaintiffs possess a reasonable fear of

7 persecution or torture and accordingly have transferred Plaintiffs from summary reinstatement

8 proceedings to withholding only proceedings before the Immigration Judge.

9

9. As a result of Defendants’ policies and practices rejecting the authority of

10 Immigration Judges to conduct custody hearings for Plaintiffs under 8 U.S.C. § 1226, persons

11 in withholding only proceedings remain locked up in federal facilities and private prisons like

12 the Northwest Detention Center for several months, often in excess of a year, and sometimes

13 for multiple years.

14

10. Plaintiffs’ detention without a custody hearing where they have the opportunity to

15 demonstrate that they should be released on bond or on their own recognizance, violates both

16 the Immigration and Nationality Statute, 8 U.S.C. § 1101 et seq., and the United States

17 Constitution.

18

11. Through this action Mr. Martinez, Mr. Flores, and Mr. Ventura, on behalf of

19 themselves and proposed Class Members, request this Court declare that noncitizens placed in

20 withholding only proceedings are not subject to detention under 8 U.S.C. § 1231(a), but instead

21 their detention is authorized by § 1226(a), and enjoin Defendants from denying Plaintiffs

22 custody hearings pursuant to 8 C.F.R. § 1236.1(d).

23

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12. Moreover, Mr. Martinez, Mr. Flores, and Mr. Ventura request that this Court

2 provide relief for themselves and all Plaintiffs facing prolonged detention, clarifying that

3 pursuant to controlling case law from the Ninth Circuit Court of Appeals, individuals who have

4 been placed in withholding only proceedings are entitled to automatic custody hearings once

5 their detention reaches six months, where Defendants bear the burden of justifying the

6 continued detention with clear and convincing evidence.

7

8

II. Parties

9

13. Plaintiff-Petitioner Arturo Martinez Baños is a native and citizen of Mexico, who is

10 currently residing in Othello, Washington. He was previously detained at the Northwest

11 Detention Center in Tacoma, Washington, before he was released on a $10,000 bond.

12

14. Plaintiff-Petitioner Edwin Flores Tejada is a native and citizen of El Salvador, who

13 is currently detained at the Northwest Detention Center in Tacoma, Washington. He has been

14 detained since December 21, 2015.

15

15. Plaintiff-Petitioner German Ventura Hernandez is a native and citizen of Mexico,

16 who is currently detained at the Northwest Detention Center in Tacoma, Washington. He has

17 been detained since October 18, 2016.

18

16. Defendant-Respondent Nathalie Asher is the Field Office Director for the Seattle

19 District of Immigration and Customs Enforcement (“ICE”), an agency of the United States.

20 The Field Officer Director enforces all custody determinations of Plaintiffs-Petitioners and of

21 other members of the proposed Class. Director Asher thus has custody over the named

22 Plaintiffs and proposed Class Members. She is sued in her official capacity.

23

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17. Defendant-Respondent Sara R. Saldaña is the Director of Immigration & Customs

2 Enforcement. ICE is the agency within the Department of Homeland Security (“DHS”) that is

3 responsible for apprehension, detention, and removal of noncitizens from the United States.

4 Director Saldaña is a legal custodian of the named Plaintiffs and proposed Class Members.

5 She is sued in her official capacity.

6

18. Defendant-Respondent Jeh Johnson is the Secretary of the Department of Homeland

7 Security, an agency of the United States. He is named in his official capacity.

8

19. Defendant-Respondent Juan P. Osuna is the Director of the Executive Office for

9 Immigration Review (“EOIR”), an agency within the Department of Justice responsible for the

10 immigration courts and Board of Immigration Appeals (“BIA”). He is named in his official

11 capacity.

12

20. Defendant-Respondent Loretta E. Lynch is the Attorney General of the United

13 States and the most senior official in the Department of Justice. She has the authority to

14 interpret the immigration laws and adjudicate removal cases. By regulation, the Attorney

15 General delegates this responsibility to the immigration courts and the BIA, which are

16 administered by EOIR. She is named in her official capacity.

17

21. Defendant-Respondent Lowell Clark is the warden of the Northwest Detention

18 Center, operated by the GEO Group, Inc., under contract with the Department of Homeland

19 Security. Defendant Clark is sued in his official capacity because he has custody of detained

20 Plaintiffs.

21

III. Custody

22

22. Mr. Martinez is currently released from the Northwest Immigration Detention

23 Center and residing at his home in Othello, Washington. However, as the BIA has sustained

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1 Defendant ICE’s appeal and declared that the Immigration Judge had no authority to conduct a

2 custody hearing, Mr. Martinez is subject to immediate detention, at Defendants’ discretion. As

3 such, he remains in the constructive custody of Defendant Asher, who directs ICE detention

4 and enforcement operations in Washington State.

5

23. Mr. Flores has been detained at the Northwest Detention Center since December 21,

6 2015, and is thus subject to the custody of Defendant Asher. On August 30, 2016—after 253

7 days of detention—the Immigration Judge denied Mr. Flores’s request for bond on the ground

8 that she lacked jurisdiction because he is in withholding only proceedings. Ex. B at 2.

9

24. Mr. Ventura has been detained at the Northwest Detention Center since October 18,

10 2016, and is thus subject to the custody Defendant Asher.

11

25. Proposed Class Members, all of whom remain in custody at the Northwest

12 Detention Center or are subject to an order of detention there, while in withholding only

13 proceedings in the Western District of Washington.

14

IV. Jurisdiction and Venue

15

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

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

17 (“APA”), 5 U.S.C. § 701 et seq.

18

27. This Court has jurisdiction under Article 1, section 9, clause 2 of the United States

19 Constitution (Suspension Clause); 28 U.S.C. § 2241 (habeas corpus); 28 U.S.C. §§ 1331

20 (federal question), 1361, and 1651 (All Writs Act).

21

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

22 2241, 5 U.S.C. § 702, 28 U.S.C. § 1651, and 28 U.S.C. § 2202.

23

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29. Plaintiffs-Petitioners have exhausted any and all administrative remedies to the

2 extent required by law.

3

30. Venue is proper in the Western District of Washington under 28 U.S.C. §§ 1391(e)

4 and 1402 where Defendant Asher resides and where custody determinations are made with

5 respect to the named Plaintiffs and proposed Class Members.

6

V. Legal Background

7 Reinstatement Proceedings and Withholding Only Proceedings

8

31. Mr. Martinez, Mr. Flores, Mr. Ventura, and all putative Class Members are persons,

9 who were previously ordered removed, thereafter re-entered the United States without

10 inspection, and were subsequently encountered by U.S. immigration authorities. Consequently,

11 they are all subject to an administrative removal process under 8 U.S.C. § 1231(a)(5) known as

12 a reinstatement of removal.

13

32. Pursuant to the implementing regulations, persons subject to reinstatement of

14 removal are not provided an opportunity to appear in front of an Immigration Judge. 8 C.F.R. §

15 241.8(a). Instead, they are placed through an expedited process where an ICE official issues an

16 order of removal predicated upon the person’s prior removal order and subsequent unlawful

17 reentry. The person is then summarily removed from the country.

18

33. However, an “exception” to the summary removal process exists for a noncitizen,

19 who expresses a fear of being persecuted or tortured if returned to their home country. 8 C.F.R.

20 § 241.8(e). In such a case the noncitizen is interviewed by an asylum officer to determine if she

21 or he has a reasonable fear of persecution or torture. Id. If an asylum officer determines that the

22 person has a reasonable fear they are then transferred from the summary reinstatement process

23 into full proceedings before an Immigration Judge called “withholding only proceedings.” 8

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1 C.F.R. § 208.31(e). See also 8 C.F.R. § 1208.2(c)(3)(i) (while the scope is limited to

2 applications for withholding of removal and relief under the Convention Against Torture, cases

3 referred for withholding only proceedings “shall be conducted in accordance with the same

4 rules of procedure as proceedings under 8 C.F.R. part 240, subpart A.”).

5

34. Because Defendants have already determined that Mr. Martinez, Mr. Flores, Mr.

6 Ventura, and all Plaintiffs have a reasonable fear of persecution or torture, they have all been

7 referred for full proceedings before an Immigration Judge where they have an opportunity to

8 apply for withholding of removal and/or relief under the Convention Against Torture. See 8

9 C.F.R. § 1208.31(e). Moreover, Plaintiffs have the right to an administrative appeal to the BIA

10 (and thereafter to seek judicial review before the federal court of appeals) if they are not

11 granted either withholding of removal under 8 U.S.C. § 1231(b)(3), or relief under the

12 Convention Against Torture, 8 C.F.R. § 1208.16(c). See 8 C.F.R. § 1208.31(e).

13 Statutory Authority for Detention in Withholding Only Proceedings.

14

35. Notwithstanding the fact that Plaintiffs have been transferred to immigration

15 proceedings before Immigration Judges, Defendants assert that Plaintiffs remain subject to

16 mandatory detention under 8 U.S.C. § 1231(a).

17

36. Defendants assert that Immigration Judges have no jurisdiction to make custody

18 determinations for persons subject to reinstatement of removal under 8 U.S.C. § 1231(a)(5).

19 Defendants purport to detain persons subject to reinstatement of removal throughout the

20 removal proceeding, relying on the authority of 8 U.S.C. § 1231(a)(2), which requires that

21 noncitizens be detained “[d]uring the removal period.” The statute defines the removal period

22 as beginning on the “date the order of removal becomes administratively final” (unless the

23

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1 person seeks judicial review or is confined by authorities other than immigration officials). 8

2 U.S.C. § 1231(a)(1)(B).

3

37. However, both binding case law and the controlling statute make clear that

4 Plaintiffs are not subject to a final administrative order until the withholding only proceedings

5 are concluded, including any administrative appeal. See Rodriguez III, 804 F.3d at 1086; Ortiz-

6 Alfaro, 694 F.3d at 958; 8 U.S.C. § 1101(a)(47(B) (removal order is not final until both the

7 Immigration Judge and the BIA complete review).

8

38. 8 U.S.C. § 1226 authorizes the detention of a noncitizen “pending a decision on

9 whether the [noncitizen] is to be removed from the United States.” Plaintiffs submit that

10 because withholding of removal proceedings are now pending before the agency, their

11 detention is governed by § 1226, not § 1231(a).

12

39. For a person detained under § 1226, subject to limited exceptions laid out in

13 subsection (c), ICE may detain the noncitizen or release her subject to parole or a bond. If ICE

14 elects to detain the noncitizen, the noncitizen may request a custody redetermination hearing

15 before an Immigration Judge. 8 C.F.R. § 1236.1(d)(1).

16

40. 8 U.S.C. § 1231(a), by contrast, only governs the detention of noncitizens, who are

17 subject to a final order of removal. This section defines a 90-day “removal period” after a

18 removal order becomes “administratively final”; during the removal period, detention is

19 required. 8 U.S.C. § 1231(a)(1)-(2).

20

41. “Where a [noncitizen] falls within this statutory scheme can affect whether his

21 detention is mandatory or discretionary, as well as the kind of review process available to him

22 if he wishes to contest the necessity of his detention.” Prieto–Romero v. Clark, 534 F.3d 1053,

23 1057 (9th Cir. 2008).

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42. The Second Circuit is the only Court of Appeals to squarely address whether a

2 person in withholding only proceedings is detained pursuant to § 1226 or § 1231(a). Guerra.

3 In Guerra, the Court of Appeals unequivocally held that § 1226, not § 1231, provides the

4 statutory authority for any detention during withholding only proceedings because there are

5 clearly ongoing administrative proceedings: “8 U.S.C. § 1226(a) permits detention of an

6 [noncitizen] ‘pending a decision on whether the [noncitizen] is to be removed from the United

7 States.’ The statute does not speak to the case of whether the [noncitizen] is theoretically

8 removable but rather to whether the [noncitizen] will actually be removed. An [noncitizen]

9 subject to a reinstated removal order is clearly removable, but the purpose of withholding-only

10 proceedings is to determine precisely whether ‘the [noncitizen] is to be removed from the

11 United States.’ 8 U.S.C. § 1226(a).” Guerra, at *2.

12

43. The Court further explained, “8 U.S.C. § 1226(a) authorizes the detention of

13 [noncitizens] whose removal proceedings are ongoing. By contrast, 8 U.S.C. § 1231(a) is

14 concerned mainly with defining the 90-day removal period during which the Attorney General

15 ‘shall remove the [noncitizen].’” Id. at *3.

16

44. Even prior to the Second Circuit’s decision in Guerra, the Ninth Circuit addressed

17 when the removal order of a person in withholding only proceedings is administratively final

18 for purposes of seeking judicial review. The Court concluded that “the reinstated removal order

19 does not become final until the reasonable fear of persecution and withholding of removal

20 proceedings are complete.” Ortiz-Alfaro, 694 F.3d at 958. See also Luna-Garcia v. Holder, 777

21 F.3d 1182 (10th Cir. 2015) (same); cf. Chupina v. Holder, 570 F.3d 99, 103-04 (2d Cir. 2009)

22 (agency order is not final where applications for withholding of removal or relief under the

23

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1 Convention Against Torture are pending before the Immigration Judge or the BIA—even if

2 there is no further ability to challenge the finding of removability).

3

45. Defendants contend that the analysis in Ortiz-Alfaro should be limited to

4 determining the finality of a reinstated removal order for purposes of seeking judicial review,

5 and disregarded with respect to determining “the finality of a reinstated removal order with

6 respect to the . . . the source of the detention authority and the Immigration Judge’s jurisdiction

7 to consider a custody redetermination request.” Ex. A BIA Order at 2.

8

46. However, as the Second Circuit succinctly stated, Defendants “point to no authority

9 for this proposition, however, and we have never recognizes such ‘tiers’ of finality. Moreover,

10 the bifurcated definition of finality urged upon us runs counter to principles of administrative

11 law which counsel that to be final, an agency action must ‘mark the consummation of the

12 agency’s decisionmaking process.’ U.S. Army Corps of Eng'rs v. Hawkes Co., 136 S.Ct. 1807,

13 1813 (2016) (quoting Bennett v. Spear, 520 U.S. 154, 178 (1997)).” Guerra, at *3.

14

47. While the Ninth Circuit Court of Appeals has not yet directly addressed this issue,

15 decisions from the Western District have split upon whether persons in withholding only

16 proceedings are detained pursuant to § 1226 or § 1231. See Martinez Mendoza v. Asher, C14–

17 0811JCC, Dkt. # 14 (W.D.Wash. Sept. 16, 2014) (individual was detained under § 1226 and

18 entitled to a custody hearing); Acevedo-Rojas v. Clark, No. C14-1323-JLR, 2014 WL 6908540,

19 at *5 (W.D. Wash. Dec. 8, 2014) (ruling instead that § 1231(a) formed the basis of detention);

20 Giron-Castro v. Asher, No. C14-0867JLR, 2014 WL 8397147, at *2 (W.D. Wash. Oct. 2,

21 2014) (same); Gonzalez v. Asher, 2016 U.S. Dist. LEXIS 29710, *12 (W.D. Wash. Feb. 16,

22 2016) (deciding that the Court need not determine whether noncitizen is detained pursuant to §

23

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1 1226 or § 1231 as petitioner is entitled to bond hearing under either statute because he has been

2 detained by ICE for more than six months).

3

48. However, Acevedo-Rojas and Giron-Castro did not have the benefit of the Second

4 Circuit’s analysis in Guerra. In addition, neither of those cases had the benefit of the Ninth

5 Circuit’s recent opinion in Rodriguez III, in which the Court clarified that there was no need

6 for a separate § 1231(a) prolonged detention subclass, because individuals with pending

7 immigration proceedings (persons in withholding only proceedings) continue to be detained

8 under § 1226: “if a non-citizen has received a stay of removal from the BIA pending further

9 administrative review, then the order of removal is not yet ‘administratively final.’ 8 U.S.C. §

10 1231(a)(1)(B)(i). The non-citizen has not been ‘ordered removed,’ and the removal period has

11 not begun, so § 1231(a) is inapplicable.” Rodriguez III, 804 F.3d at 1086. As such, binding

12 Ninth Circuit case law emphatically reinforces the Second Circuit’s holding in Guerra.

13

49. Because persons in withholding only proceedings are detained under § 1226 and not

14 § 1231 they are immediately eligible to seek a custody hearing before an Immigration Judge.

15 See Guerra, at *2 (“The answer to this question determines whether Guerra's detention is

16 governed by § 1231(a) or instead by § 1226(a), and, in turn, whether he was eligible to be

17 released on bond”).

18 Prolonged Detention Is Not Authorized by Either 8 U.S.C. §1226 or §1231

19

50. Even where persons are subject to mandatory detention, the Ninth Circuit has

20 repeatedly made clear that the general immigration statutes do not authorize prolonged

21 detention without a custody hearing. See, e.g., Rodriguez II, 715 F.3d at 1133 (“the canon of

22 constitutional avoidance requires us to construe the government's statutory mandatory

23

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1 detention authority under Section 1226(c) and Section 1225(b) as limited to a six-month

2 period, subject to a finding of flight risk or dangerousness.”).

3

51. There is simply no legal authority for Defendants to justify their refusal to afford

4 the named Plaintiffs and proposed Class Members individualized custody hearings when they

5 have been detained for six months. Rather, Defendants continue to flout controlling case law

6 from the Ninth Circuit Court of Appeals. See Rodriguez III, 804 F.3d at 1065 (“This is the

7 latest decision in our decade-long examination of civil, i.e. non-punitive and merely

8 preventative, detention in the immigration context.”).

9

52. In Casas–Castrillon and Prieto–Romero the Ninth Circuit first examined the

10 interplay between § 1226 and § 1231 in removal proceedings. The Court ruled that persons

11 who filed petitions for review and obtained a stay of removal, continued to be detained under §

12 1226—even though the administrative order was now final. See Prieto-Romero, 534 F.3d at

13 1060 (“§ 1231(a) authorizes detention only ‘[d]uring the removal period,’ § 1231(a)(2), and

14 ‘beyond the removal period,’ § 1231(a)(6), it clearly does not provide any authority before the

15 removal period.”); Casas-Castrillon, 535 F.3d at 947 (noncitizen originally detained under

16 mandatory detention provision at § 1226(c) who files petition for review of final administrative

17 order is then detained under discretionary detention provision at § 1226(a), not § 1241(a)).

18

53. The Ninth Circuit next concluded that even where there is already a final order of

19 removal (i.e., there are no longer pending removal proceedings) and thus the noncitizen is

20 detained pursuant to § 1231(a), that such a person is entitled to an individualized custody

21 hearing before an immigration judge when facing prolonged detention. Diouf II, 634 F.3d at

22 1092. The Court of Appeals further made clear that prolonged detention occurs when the

23 noncitizen is detained for six months. Id. at 1091.

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1

54. Then in a series of three separate decisions addressing a class action for detainees in

2 the Central District of California facing prolonged detention under the general detention

3 statutes, including 8 U.S.C. §§ 1225(b), 1226, and 1231(a), see Rodriguez v. Hayes (Rodriguez

4 I), 591 F.3d 1105, 1113 (9th Cir. 2010), the Court of Appeals definitively clarified that

5 noncitizens detained pursuant to the general detention statutes are entitled to automatic custody

6 hearings before an Immigration Judge if they are detained for six months or longer. Rodriguez

7 III, 804 F.3d at 1085.

8

55. In addition, in the cases of prolonged immigration detention, the burden of proof

9 transfers to the government, which must then demonstrate with clear and convincing evidence

10 why the noncitizen should not be released. Id. at 1087, citing Singh v. Holder, 638 F.3d 1196,

11 1203, 1208 (9th Cir. 2011).

12

56. Without the benefit of the Court of Appeals’ decisions in Guerra and Rodriguez III,

13 the Western District Court was split on determining the underlying statutory authority for

14 detaining noncitizens in withholding proceedings. But all agreed that, regardless of the

15 authorizing statute, noncitizens are entitled to an individualized bond hearing once they have

16 been detained for six months by immigration authorities. For example, in Giron-Castro this

17 Court granted the habeas petition ordering that the petitioner be granted an individualized bond

18 hearing with 14 days of the date of the order based on his prolonged detention even though the

19 petitioner was detained under § 1231(a). 2014 WL 8397147, at *1. In Gonzalez this Court held

20 it need not even determine whether the petitioner was detained under § 1226 or § 1231, as

21 either way he was entitled to a bond hearing because he had been detained for more than six

22 months. Gonzalez, 2016 U.S. Dist. LEXIS 29710, *12.

23

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1

VI. Factual Allegations

2 Plaintiff-Petitioner Martinez

3

57. Plaintiff Martinez is a 36-year-old native and citizen of Mexico who is currently in

4 withholding only proceedings based on his fear of persecution and torture if forcibly returned

5 to Mexico.

6

58. Mr. Martinez first entered the United States around 1997 without any lawful status.

7 Since that time he has lived primarily in Washington State, and currently lives on a small

8 orchard with his former employers, who have taken him in as part of their family. He has

9 worked for or lived with this same family since around 2006.

10

59. Mr. Martinez was placed in removal proceedings and ordered removed after having

11 been convicted of possession of a controlled substance in 2009. He then returned to the United

12 States without permission later in 2009 and was summarily removed. He then reentered

13 without inspection, and in 2012 was convicted of Misprision of a Felony. While he was serving

14 prison time for this conviction, he was accused by fellow defendants of providing information

15 about them to U.S. law enforcement agents.

16

60. In 2013, after completing his sentence, Mr. Martinez was again removed to Mexico.

17 In Mexico, he was kidnapped, beaten, sodomized, and psychologically tortured by uniformed

18 police officers from Petatlan, who held him for ransom, which was ultimately paid by his

19 former employers in Washington State.

20

61. After he was released from this ordeal, he attempted to enter the United States

21 unsuccessfully three times before he was able to evade detection in mid-2013. However, in

22 2014, he was charged with Assault in the fourth degree, which charge was dismissed after Mr.

23 Martinez complied with a Stipulated Order of Continuance.

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1

62. In March of 2015, Mr. Martinez was apprehended by ICE and served with a Notice

2 of Intent to Reinstate his 2009 removal order. He was detained at the Northwest Detention

3 Center in Tacoma. He expressed fear of return to Mexico and underwent a Reasonable Fear

4 Interview pursuant to 8 C.F.R. § 208.31(b). The Asylum Office found that Mr. Martinez

5 demonstrated a reasonable fear of torture by the Petatlan police, who previously tortured him

6 with impunity, as well as by the members of the cartel related drug trafficking operation, who

7 suspect Mr. Martinez of providing prejudicial information about them to U.S. law enforcement.

8

63. On October 8, 2015, after Mr. Martinez had been detained in immigration custody

9 for over six months, the Immigration Court conducted a custody hearing, 196 days after Mr.

10 Martinez was first placed in immigration custody.

11

64. Immigration Judge Fitting determined that in light of the ongoing withholding only

12 proceedings based on the asylum officer’s finding that Mr. Martinez possesses a reasonable

13 fear of persecution or torture if returned to Mexico, and his strong community ties, and

14 notwithstanding his past offenses, DHS had failed to carry its burden of demonstrating with

15 clear and convincing evidence that Mr. Martinez presented either a flight risk or a danger to the

16 community. As such, Judge Fitting set a bond in the amount of $10,000, upon payment of

17 which Mr. Martinez was released from the Northwest Detention Center and returned to live at

18 his home, at the residence of his former employer.

19

65. However, ICE filed a notice of appeal to the BIA, challenging the Immigration

20 Judge’s authority to grant a bond to a person like Mr. Martinez, who is currently in withholding

21 only proceedings.

22

23

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1

66. On June 28, 2016, Mr. Martinez attended his non-detained preliminary withholding

2 hearing at the Seattle Immigration Court. The Immigration Judge scheduled Mr. Martinez’

3 merits hearings for September 28, 2018.

4

67. On July 27, 2016, a three-member panel of the BIA issued a split decision,

5 reversing the Immigration Judge’s custody determination. The majority opinion found that “the

6 Immigration Judge lacked jurisdiction to consider [Mr. Martinez’s] request to be released from

7 custody.” See Exh. A, BIA Order at 1. Specifically the Board found that “[c]ontrary to the

8 respondent’s argument on appeal, the DHS’s detention authority stems from 241(a) of the Act

9 [8 U.S.C. § 1231(a)(1)], not section 236(a) [8 U.S.C. § 1226(a)], because respondent is subject

10 to an administratively final removal order that has been reinstated.” Id.

11

68. Further, the Board found that “[a]n Immigration Judge’s authority to redetermine

12 custody conditions is limited to [noncitizens] who have been issued a Notice to Appear and

13 placed into removal proceedings under section 240 [8 U.S.C. § 1229a].” Finally, the Board

14 acknowledged that “while the United States Court of Appeals for the Ninth Circuit has held

15 that certain [noncitizens] are required to be provided custody redetermination hearings after

16 180 days in detention, [noncitizens] detained under section 241(a) of the Act [8 U.S.C. §

17 1231(a)] are specifically excluded from that class.” Id. at 2.

18

69. The Board vacated the Immigration Judge’s decision granting a $10,000 bond and

19 ordered that “[t]he respondent shall be detained without bond pending proceedings.” Id. at 3.

20

70. In a dissenting opinion Board Member Grant opined that “the clear language in

21 Rodriguez III provides that a [noncitizen] such as [Mr. Martinez], whose removal is subject to

22 further administrative review before an Immigration Judge on his application for withholding

23

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1 of removal, is not being detained pursuant to section 241(a) of the Act and thus is entitled to

2 the bond redetermination hearing mandated by that decision.” Id. at 4.

3

71. As a result of the Board’s decision, Immigration Judges in Tacoma now deny

4 custody redetermination requests by proposed Class Members who have been in detention for

5 more than six months based on Defendants’ interpretation that the Immigration Judges do not

6 have jurisdiction over such requests by persons in withholding only proceedings.

7

72. The Immigration Court in Tacoma now utilizes a bond template sheet that includes

8 a check mark box for denying custody determinations based on “No Jurisdiction” with a

9 category for “Withholding Only Proceedings.” See Exh. B.

10 Plaintiff-Petitioner Flores

11

73. Plaintiff Flores is a 35-year-old native and citizen of El Salvador who is currently in

12 withholding only proceedings based on his fear of persecution and torture if forcibly returned

13 to El Salvador.

14

74. Mr. Flores first came to the United States in 2001. In November 1999, before

15 coming to the United States, Mr. Flores was brutally attacked by members of the Mara

16 Salvatrucha (“MS-13”) gang for refusing to join them. The gang members beat him using

17 sticks and rods, causing him severe injuries. Around two weeks later Mr. Flores fled to

18 Mexico, where one of his brothers was living after also having fled from gang recruitment.

19 After living in Mexico for around a year, in 2001, Mr. Flores entered the United States without

20 inspection and began to live in Michigan.

21

75. In 2005 Mr. Flores was convicted for operating a vehicle while impaired and

22 sentenced to one day in jail. He was subsequently placed in removal proceedings. In 2006, he

23

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1 was ordered removed by an Immigration Judge, but did not depart until January 2014, when

2 Mr. Flores was apprehended by immigration authorities and removed to El Salvador.

3

76. After returning to El Salvador, Mr. Flores was told by a friend that the MS-13 gang

4 members were still investigating him. Around two weeks after arriving in El Salvador, Mr.

5 Flores once again fled to Mexico. There, he was kidnapped and threatened for being

6 Salvadoran. Around April 2014, after being released by the kidnappers, Mr. Flores returned to

7 the United States. He was apprehended by Border Patrol officers, then convicted for improper

8 entry under 8 U.S.C. § 1325 and sentenced to 75 days in jail. In July 9, 2014, Mr. Flores was

9 removed to El Salvador, but he immediately returned to the United States out of fear. He began

10 to live in SeaTac, Washington, with his family, including two children born in the United

11 States.

12

77. On December 21, 2015, Mr. Flores was apprehended by ICE officers and

13 transported to the Northwest Detention Center. On January 11, 2016, Mr. Flores underwent a

14 Reasonable Fear Interview pursuant to 8 C.F.R. § 208.31(b). The Asylum Office found that

15 Mr. Flores demonstrated a reasonable fear of torture by the MS-13, who previously persecuted

16 him on account of his membership in his nuclear family.

17

78. On August 30, 2016, after 253 days in detention, Mr. Flores appeared before the

18 Immigration Court for a custody redetermination hearing. Immigration Judge Fitting denied his

19 request for a bond hearing on the basis that she lacks jurisdiction to order his release because

20 he is in withholding only proceedings. Ex. B at 2.

21

79. Mr. Flores appealed the Immigration Judge’s denial. That appeal is currently

22 pending before the BIA.

23

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1 Plaintiff-Petitioner Ventura

2

80. Plaintiff Ventura is a 23-year-old citizen and national of Mexico who is currently in

3 withholding only proceedings based on his fear of persecution and torture if forcibly returned

4 to Mexico.

5

81. In January 2014, Mr. Ventura was beaten and threatened by residents of a rival

6 town and members of its football team. He reported the incident to the police, but the police

7 did not take any measures. Men from the rival team subsequently returned to his house with

8 weapons, threatening to kill him for reporting them to the police. For several weeks, Mr.

9 Ventura continued to receive death threats at his home. In March 2014, the attackers

10 encountered Mr. Ventura at a market, beat him with rocks, and attempted to run him over with

11 a car.

12

82. Mr. Ventura fled from Mexico and entered the United States without inspection

13 around March 16, 2016. He was apprehended by immigration authorities near the border and

14 removed to Mexico. Around 10 days later, Mr. Ventura returned to the United States and

15 entered without inspection.

16

83. On June 1, 2016, Mr. Ventura was convicted for driving under the influence of

17 alcohol in Oregon. He was sentenced to a 12-month diversion program and immediately began

18 to comply with the court-ordered sentence.

19

84. On October 18, 2016, Mr. Ventura was apprehended by ICE officers at his home

20 and transported to the Northwest Detention Center. On November 3, 2016, Mr. Flores

21 underwent a Reasonable Fear Interview pursuant to 8 C.F.R. § 208.31(b). The Asylum Office

22 found that Mr. Ventura had demonstrated a reasonable possibility of torture upon removal to

23 Mexico. Ex. C at 1.

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1

85. Pursuant to Defendants’ policy and practice, Mr. Ventura is not eligible for an

2 individualized custody redetermination hearing before an Immigration Judge even though he

3 has been referred to the Immigration Court for withholding only proceedings.

4

V. Class Action Allegations

5

86. Plaintiffs–Petitioners bring this action pursuant to Federal Rules of Civil Procedure

6 23(a) and 23(b) on behalf of themselves and all other persons similarly situated. The proposed

7 class is defined as follows:

8

All individuals who are placed in withholding only proceedings under

8 C.F.R. § 1208.31(e) in the Western District of Washington who are

9

detained or subject to an order of detention.

10

87. The requirements of Rule 23(a)(1) are met in this case because the class is so

11 numerous that joinder of all members is impracticable. Upon information and belief there are

12 currently over eighty individuals detained at the Northwest Detention Center who fall within

13 the proposed class and several hundred are detained at the Northwest Detention Center over the

14 course of a year. Moreover, the inherent transitory state of the putative Class Members further

15 demonstrates that joinder is impracticable.

16

88. The proposed class meets the commonality requirements of Federal Rule of Civil

17 Procedure 23(a)(2) because the mandatory detention of individuals within the proposed class is

18 the result of Defendants’ unlawful interpretation of the detention statutes and removal

19 provisions at 8 U.S.C. §§ 1226, 1231.

20

89. The proposed class meets the typicality requirements of Federal Rule of Civil

21 Procedure 23(a)(3) because the claims of the named Plaintiffs are typical of the claims of the

22 class. The named Plaintiffs and the class of individuals they seek to represent have all been

23 subjected to mandatory detention despite being placed into ongoing removal proceedings after

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1 asylum officers have determined that they possess a reasonable fear of persecution or torture if

2 returned to their home countries. As such, they are not subject to a final order under 8 U.S.C. §

3 1231(a) but instead are subject to the detention provisions at § 1226. Moreover, all are

4 similarly “entitled to automatic bond hearings after six months of detention.” Rodriguez III,

5 804 F.3d at 1085.

6

90. The proposed class meets the requirements of Federal Rule of Civil Procedure

7 23(a)(4) on adequacy of representation. The named Plaintiffs seek the same relief as the other

8 members of the class, namely the right to an individualized custody determination by an

9 Immigration Judge, and do not have any interests adverse to those of the class as a whole. In

10 addition, the proposed class is represented by counsel from the Northwest Immigrant Rights

11 Project. Counsel has extensive experience litigating class action lawsuits, including lawsuits on

12 behalf of immigration detainees.

13

91. Finally, the proposed class satisfies Federal Rule of Civil Procedure 23(b)(2)

14 because the immigration authorities have acted on grounds generally applicable to the class in

15 applying an erroneous interpretation of § 1231(a) to members of the proposed class. Thus,

16 final injunctive and declaratory relief is appropriate with respect to the class as a whole. Cf.

17 Rodriguez I, 591 F.3d at 1119-20 (8 U.S.C. § 1252(f) does not bar declaratory relief, nor

18 injunctive relief where “Petitioner here does not seek to enjoin the operation of the immigration

19 detention statutes, but to enjoin conduct it asserts is not authorized by the statutes.”).

20

VI. Claims for Relief

21 First Cause of Action—Violation of 8 U.S.C. § 1226 for failure to Provide Immediate Custody Hearings.
22 92. The foregoing allegations are realleged and incorporated herein.
23

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1

93. 8 U.S.C. § 1226(a) authorizes Defendants to release non-citizens who have pending

2 removal proceedings, including Plaintiff and Class Members who are placed in withholding

3 only proceedings under 8 C.F.R. 1208.31(e), “[e]xcept as provided in [1226] subsection (c).”

4

94. Guerra, Rodriguez III, and Ortiz-Alfaro, all confirm that Plaintiffs-Petitioners and

5 putative Class Members are subject to detention under 8 U.S.C. § 1226(a), based on their

6 ongoing immigration proceedings. As they do not have final orders, they are not subject to

7 detention pursuant to § 1231(a).

8

95. Defendants’ policy and practice of detaining Class Members without the

9 opportunity for an individualized bond hearing violates 8 U.S.C. § 1226(a), and is therefore

10 unlawful.

11 Second Cause of Action— Violation of 8 U.S.C. § 1101 et seq. for failure to Provide Automatic Custody Determinations at Six Months of Detention.
12 96. The foregoing allegations are realleged and incorporated herein.
13 97. The Due Process Clause of the Fifth Amendment to the United States Constitution
14 requires that detention be reasonably related to its purpose. Prolonged detention without an
15 individualized determination of an individual’s dangerousness or flight risk is constitutionally
16 doubtful. Rodriguez II, 715 F.3d at 1137-38. In order to avoid the constitutional concerns the
17 detention statutes must be construed to contain an implicit reasonable time limitation.
18 Rodriguez III, 804 F.3d at 1079.
19 98. Accordingly, the named Plaintiffs and putative Class Members are all “entitled to
20 automatic bond hearings after six months of detention.” Rodriguez III, 804 F.3d at 1085.
21 Defendants’ policy and practice of mandatorily detaining the named Plaintiffs and Class
22

23

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1 Members who are subjected to prolonged detention violates the clear holdings of the Court of

2 Appeals requiring Defendants to justify prolonged detention beyond six months.

3 Third Cause of Action—Violation of Due Process Clause.

4

99. The foregoing allegations are realleged and incorporated herein.

5

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

6 Constitution requires that civil immigration detention be limited to its purpose of preventing

7 flight risk and danger to the community, and is accompanied by strong procedural protections

8 to ensure that detention is serving those goals.

9

101. Mandatory detention is not reasonably related to its purpose when applied to

10 individuals such as Plaintiffs-Petitioners and Class Members, who have been placed in full

11 immigration proceedings after being found by asylum officers to have a reasonable fear of

12 persecution or torture pursuant to 8 C.F.R. § 208.31(e), and who retain the right to file an

13 administrative appeal and seek judicial review before the Federal Court of Appeals if they are

14 not granted protection from removal by the Immigration Judge or BIA.

15

102. Defendants’ policy and practice of denying Plaintiffs-Petitioners and Putative

16 Class Members individualized custody determinations before an Immigration Judge violates

17 the Due Process Clause of the United States Constitution, and is therefore unlawful.

18

VII. Request for Relief

19

Plaintiffs-Petitioners request this Court to grant the following relief:

20

1. Grant a writ of habeas corpus ordering Defendants to refrain from vacating the

21 Immigration Judge’s custody determination for Mr. Martinez;

22

2. Certify this case as a class action lawsuit, as proposed herein, appoint the named

23 Plaintiffs as class representatives, and appoint the undersigned counsel as class counsel;

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1

3. Declare Defendants’ interpretation of the statute and policy denying the named

2 Plaintiffs and Class Members an opportunity to seek custody hearings under 8 U.S.C. § 1226 as

3 unlawful, and their practice of applying mandatory detention to Plaintiffs in violation of the

4 Immigration and Nationality Act, or in the alternative, the United States Constitution;

5

4. Order Defendants to cease and desist from holding the named Plaintiffs and Class

6 Members in detention without an individualized custody determination before an Immigration

7 Judge;

8

5. Order the Defendants to automatically provide individualized custody hearings to

9 all Plaintiffs on or before they have been detained for six months in immigration custody;

10

6. Grant an award of attorney’s fees and costs;

11

7. Grant such other relief as may be just and reasonable.

12 Dated this 31st day of January, 2017.
13

NORTHWEST IMMIGRANT RIGHTS PROJECT

14

/s/ Matt Adams

.

15

Matt Adams, WSBA No. 28287

615 Second Avenue, Suite 400

16

Seattle, WA 98104

(206) 957-8611

17

18

19

20

21

22

23

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1

CERTIFICATE OF SERVICE

2

I hereby certify that today, January 31, 2017, I electronically filed the foregoing

document with the Clerk of the Court using the CM/ECF system, which will send notification of 3
such filing to all parties of record. 4
s/ Leila Kang 5 Leila Kang, WSBA No. 48048
NORTHWEST IMMIGRANT RIGHTS PROJECT 6 615 Second Avenue, Suite 400
Seattle, WA 98104 7 (206) 957-8608
leila@nwirp.org 8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23
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1

Honorable James R. Robart

Honorable Brian A. Tsuchida

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

FOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

8

9

10
Arturo MARTINEZ BAÑOS, et al.,
11
Plaintiffs-Petitioners,
12

13

v.

Case No. 2:16-cv-01454-JLR-BAT
Agency Nos.
A 089 091 010 A 098 225 790 A 206 104 257

14 Nathalie ASHER, et al.,

15

Defendants-Respondents

16

17

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
Noted on Motion Calendar: January 5, 2017

18

19

I. INTRODUCTION

20

Defendants’ policy and practice of detaining class members directly flouts controlling

21 caselaw. Class members are individuals who have been placed in withholding of removal
22
proceedings after an asylum officer or immigration judge (“IJ”) made a finding that they have a
23
reasonable fear of persecution and torture. Defendants detain class members throughout the
24
lengthy immigration proceedings, denying them the opportunity to even seek a custody
25
26 redetermination from a neutral arbiter who determines whether the individual presents a flight

27 risk or threat to the community. Yet, the Ninth Circuit and this Court have uniformly held that

28
PLS.’ MOT. FOR SUMM. J. - 1 Case No. 2:16-cv-01454-JLR-BAT

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1 such prolonged detention without an opportunity to seek a custody redetermination by an IJ

2 violates the Immigration and Nationality Act (“INA”). There is no genuine dispute of material

3 facts in this case, for Defendants do not deny their policy and practice of denying
4
individualized custody hearings to class members. Class members are thus entitled to
5
declaratory and injunctive relief as a matter of law and now move for summary judgment.
6

7

II. BACKGROUND

8 A. Statutory background

9

Class members are all individuals who were subject to reinstatement of removal under 8

10
U.S.C. § 1231(a)(5), for having re-entered the United States after having been previously
11
ordered removed. See Dkt. 67 at 9. Pursuant to the implementing regulations, persons subject to
12

13 reinstatement of removal are not provided an opportunity to appear in front of an Immigration

14 Judge. 8 C.F.R. § 241.8(a). Instead, they are placed through an expedited process where an ICE

15 official issues a reinstatement order predicated upon the person’s prior removal order and
16
subsequent unlawful reentry. 8 C.F.R. § 241.8(c). The person is then summarily removed from
17
the country.
18
However, an “exception” to the summary removal process exists for a noncitizen who
19
20 expresses a fear of being persecuted or tortured if returned to their home country. 8 C.F.R. §

21 241.8(e). In such a case the noncitizen is interviewed by an asylum officer to determine if she
22 or he has a reasonable fear of persecution or torture. Id. If an asylum officer determines that the
23
person has a reasonable fear, they are then transferred out of the summary reinstatement
24
process to hearings before an IJ “for full consideration of the request for withholding of
25

26

27

28
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1 removal only.” 8 C.F.R. § 208.31(e).1 These proceedings are referred to as “withholding only

2 proceedings.” While the scope is limited to applications for withholding of removal and relief

3 under the Convention Against Torture, cases referred for withholding only proceedings are
4
“conducted in accordance with the same rules of procedure” as full removal proceedings before
5
the IJ. See also 8 C.F.R. § 1208.2(c)(3)(i).
6

7

Class members have all been referred for withholding only proceedings before an IJ.

8 Defendants have thus already determined that all class members have a reasonable fear of

9 persecution or torture and must be afforded an opportunity for hearings before an IJ to apply for
10
withholding of removal and/or relief under the Convention Against Torture. See 8 C.F.R. §
11
1208.31(e). Moreover, class members have the right to an administrative appeal to the Board of
12
13 Immigration Appeals (“BIA”)—and thereafter to seek judicial review before the federal court

14 of appeals)—if they are not granted either withholding of removal under 8 U.S.C. § 1231(b)(3),

15 or relief under the Convention Against Torture, 8 C.F.R. § 1208.16(c), by the immigration
16
court. See 8 C.F.R. § 1208.31(e).
17
8 U.S.C. § 1226 authorizes the detention of a noncitizen “pending a decision on whether
18
the [noncitizen] is to be removed from the United States.” For a person detained under § 1226,
19
20 subject to limited exceptions laid out in subsection (c), the Department of Homeland Security

21 (“DHS”) may detain the noncitizen or release them subject to parole or a bond. If DHS elects to
22 detain the noncitizen, the noncitizen may request a custody redetermination hearing before an
23
IJ. 8 C.F.R. § 1236.1(d)(1). By contrast, 8 U.S.C. § 1231(a), governs the detention of
24
noncitizens who are subject to a final order of removal. This section defines a 90-day “removal
25

26 1

The asylum officer’s negative determination regarding reasonable fear is reviewable by the IJ. 8 C.F.R. §

208.31(g). If an IJ disagrees with the asylum officer and finds that an individual has a reasonable fear, the 27 individual is entitled to full withholding only proceedings. Id. § 208.31(g)(2).

2
28

The Ninth Circuit subsequently affirmed and expanded upon this decision in Rodriguez v. Robbins, 804

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1 period” after a removal order becomes “administratively final”; during the removal period,

2 detention is required. 8 U.S.C. § 1231(a)(1)-(2). However, after that 90-day removal period the
3 individual is subject to discretionary detention pursuant to 8 U.S.C. § 1231(a)(6). Thus,
4
“[w]here a [noncitizen] falls within this statutory scheme can affect whether his detention is
5
mandatory or discretionary, as well as the kind of review process available to him if he wishes
6
7 to contest the necessity of his detention.” Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th

8 Cir. 2008); see also Casas-Castrillon v. Holder, 535 F.3d 942, 945 (9th Cir. 2008) (explaining

9 that petitioner’s “relief turns in part on locating him within the statutory framework of

10
detention authority provided by . . . 8 U.S.C. §§ 1226 and 1231.”).
11
B. Procedural background.
12

13

Plaintiff Martinez Baños filed the first complaint on September 14, 2016, presenting

14 three claims on behalf of himself and putative class members (collectively, “Plaintiffs”): First,

15 Plaintiffs asserted Defendants’ failure to provide custody hearings to individuals initially
16
placed in withholding only proceedings violates the INA, as 8 U.S.C. § 1226 and the
17
implementing regulations provide for the right of persons in removal proceedings to obtain an
18
initial custody redetermination hearing from an IJ (except as provided in § 1226(c)). Dkt. 1
19
20 ¶¶74-77. Second, Plaintiffs asserted Defendants’ failure to provide automatic custody

21 redeterminations at six months of detention, when class members’ detention is deemed
22 prolonged, violates the INA. Id. ¶¶78-80. The complaint explicitly asserts that prolonged
23
detention is not authorized by either § 1226 or § 1231. Id. ¶¶45-51. Finally, Plaintiffs
24
challenged Defendants’ failure to provide custody determinations as violating their
25
26 constitutional rights under the Due Process Clause of the United States Constitution. Id. ¶¶81-

27

28
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1 84. Plaintiffs filed an amended complaint on January 31, 2017, adding two named plaintiffs.

2 Dkt. 38.

3

Almost six months after the filing of the amended complaint, the Ninth Circuit issued

4
an intervening decision holding that individuals in withholding only proceedings following
5

reinstatement of their removal orders are subject to the detention authority of 8 U.S.C. §
6

7 1231(a). Padilla-Ramirez v. Bible, 862 F.3d 881 (9th Cir. 2017). This Court accordingly found

8 that Padilla-Ramirez forecloses Plaintiffs’ first claim that they are detained under § 1226 and

9 dismissed that claim with prejudice. Dkt. 63 at 2. However, the Court denied without prejudice
10
Plaintiffs’ claim that they are entitled to individualized custody hearings when their detention
11
becomes prolonged. See id. (directing Plaintiffs to “file a new motion addressing this issue”
12
13 after the court rules on class certification).

14

This Court thereafter certified the following class:

15

All individuals who (1) were placed in withholding only proceedings

16

under 8 C.F.R. § 1208.31(e) in the Western District of Washington after

having a removal order reinstated, and (2) have been detained for 180

17

days (a) without a custody hearing or (b) since receiving a custody

hearing.

18

Dkt. 67 at 17; Dkt. 70 at 3 (adopting the report and recommendation). Class members challenge
19

20 Defendants’ policy and practice of subjecting them to prolonged detention without any

21 opportunity to seek an individualized custody redetermination by an IJ. Dkt. 67 at 1.
22 Defendants’ motion to dismiss the prolonged detention claim has been rejected by this Court.
23
See Dkt. 67 at 15 (“[T]here is no serious dispute that the amended petition survives Rule
24
12(b)(6) review.”). Furthermore, this Court has recognized that “[t]he answer to this central
25
26 question will decide the case,” Dkt. 67 at 20, and that “no further factual development is

27 required” in order to resolve the issue, id. at 13.

28
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1

Class members now move this Court to enter summary judgment declaring Defendants’

2 policy and practice unlawful, and ordering Defendants to provide all class members with

3 individualized custody hearings in which the government bears the burden of justifying their
4
detention with clear and convincing evidence.
5
III. ARGUMENT
6

7

Summary judgment is warranted where the moving party “shows that there is no

8 genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

9 law.” Fed. R. Civ. P. 56(a). “A material issue of fact is one that affects the outcome of litigation
10
and requires a trial to resolve the parties’ differing versions of the truth.” SEC v. Seaboard
11
Corp., 677 F.2d 1301, 1306 (9th Cir. 1982). There is no material issue of fact in this case, as
12
13 the parties agree that Defendants have a policy and practice of denying individualized custody

14 hearings to class members. Whether class members are entitled to relief turns on the purely

15 legal question of whether Defendants are correctly interpreting and enforcing the law.
16
Controlling caselaw from the Ninth Circuit Court of Appeals unequivocally requires
17
Defendants to provide all persons subject to prolonged detention under the general detention
18
statutes, including 8 U.S.C. § 1231(a), with individualized custody hearings before an IJ. Class
19
20 members are thus entitled to relief as a matter of law.

21 A. Defendants have a policy and practice of denying individualized custody hearings to

22

class members.

23

This Court has correctly identified the only material fact in this case: that Defendants

24
“[have] a practice of detaining non-citizens who are subject to reinstated removal orders and
25
who are seeking withholding of removal, for prolonged periods without providing custody
26
hearings before immigration judges.” Dkt. 67 at 1. The record clearly demonstrates this
27

28
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1 practice, resulting from Defendants’ interpretation that IJs do not have jurisdiction over custody

2 redetermination for individuals in withholding only proceedings. See Dkt. 8 ¶10 (stating that IJs
3 at the Tacoma Immigration Court had been denying requests for custody redetermination by
4
individuals in withholding only proceedings who had been detained for six months or longer);
5
Dkt. 38-2 (IJ denials of custody redetermination based on “No Jurisdiction” for persons in
6
7 “Withholding Only Proceedings”). Indeed, Defendants do not deny that it is their policy and

8 practice to deny individualized custody hearings to class members. Rather, Defendants assert

9 that class members are not entitled to individualized custody hearings under governing law.
10
See, e.g., Dkt. 57 at 18-21 (arguing that Ninth Circuit caselaw does not afford the right to
11
custody hearings for individuals in withholding only proceedings); Dkt. 68 at 2 (asserting
12
13 Plaintiff Flores’s claims are not justiciable because he has no statutory or regulatory right to

14 individualized custody hearings). Therefore, this case presents “no genuine dispute as to any

15 material fact” and warrants resolution “as a matter of law.” Fed. R. Civ. P. 56(a).

16
B. Class members are entitled to individualized custody hearings under the general

17

detention statutes, including 8 U.S.C. 1231(a), in which the government bears of

burden of proof.

18

1. All individuals subject to prolonged immigration detention are entitled to a
19
custody redetermination by an IJ, in which the government must justify the

20

continued detention with clear and convincing evidence.

21

There is simply no legal authority for Defendants’ policy and practice of denying class

22
members custody hearings before an IJ. Binding precedent makes clear that class members, like
23
all noncitizens subject to the general immigration detention statutes, are entitled to an
24
individualized hearing before an IJ the moment their immigration detention becomes
25

26 prolonged—at six months. Rodriguez v. Robbins (“Rodriguez II”), 715 F.3d 1127, 1139 (9th

27 Cir. 2013) (emphasis added) (“[I]mmigration detention becomes prolonged at the six-month

28
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1 mark regardless of the authorizing statute.”).2 While the general detention statutes permit the

2 government to detain noncitizens who are in removal proceedings or subject to a removal
3 order, see 8 U.S.C. §§ 1226, 1231, courts have found that in order to avoid grave constitutional
4
concerns, the INA must be interpreted to limit the government’s authority to subject individuals
5
to prolonged detention without any opportunity to seek custody redetermination by a neutral
6
7 decisionmaker.

8

Casas-Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942 (9th Cir. 2008), examined

9 the question of whether an individual initially subject to mandatory detention under 8 U.S.C. §
10
1226(c) could be subsequently detained for a prolonged period while awaiting judicial review
11
of his removal order. In Demore v. Kim, the Supreme Court had previously denied a
12
13 constitutional challenge to mandatory detention without a bond hearing under § 1226(c). See

14 538 U.S. at 531. Casas-Castrillon, however, distinguished Demore by highlighting that its

15 holding hinged on “the specific understanding” that mandatory detention under § 1226(c) is
16
generally brief and does not usually exceed five and a half months. 535 F.3d at 950 (quoting
17
Demore, 538 U.S. at 530). Finding that § 1226(c) “was intended to apply for only a limited
18
time,” the Casas-Castrillon court first concluded that the petitioner was subject to the detention
19
20 authority of § 1226(a) while awaiting judicial review of his removal order. The court then held

21 that the government may not detain an individual under § 1226(a) “for a prolonged period
22 without providing him a neutral forum to contest the necessity of his continued detention,” 535
23
F.3d at 949, because “prolonged detention without adequate procedural protections would raise
24
serious constitutional concerns,” id. at 950.
25

26 2

The Ninth Circuit subsequently affirmed and expanded upon this decision in Rodriguez v. Robbins, 804

F.3d 1060 (9th Cir. 2015) (“Rodriguez III”), cert. granted sub nom Jennings v. Rodriguez, 136 S. Ct. 2489 (2016). 27 Rodriguez III is currently pending review by the Supreme Court. Jennings v. Rodriguez, 136 S. Ct. 2489 (June 20,

2016) (No. 15-1203). 28

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1

Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008), reinforced Casas-Castrillon’s

2 protection against prolonged detention without a bond hearing, recognizing that “due process
3 requires ‘adequate procedural protections’ to ensure that the government's asserted justification
4
for physical confinement ‘outweighs the individual’s constitutionally protected interest in
5
avoiding physical restraint.’” 534 F.3d at 1065 (quoting Zadvydas v. Davis, 533 U.S. 678, 690-
6
7 91 (2001)). Prieto-Romero affirmed that at a minimum, individuals subject to prolonged

8 detention under § 1226(a) must be afforded “an opportunity to contest the necessity of [their]

9 detention before a neutral decisionmaker.” 534 F.3d at 1065-66 (finding that petitioner had

10
been afforded such an opportunity based upon the district court’s order that he be granted a new
11
bond hearing before the IJ).
12

13

In Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011) the Ninth Circuit further clarified

14 another issue left unanswered Casas-Castrillon and Prieto-Romero: which party bears of the

15 burden of proof, and what standard of proof applies in custody redetermination of prolonged

16
detention before an IJ. Singh confirmed that “the burden of establishing whether detention is
17
justified falls on the government,” 638 F.3d at 1203, and that the government must meet its
18
burden with “clear and clear convincing evidence,” id. at 1205.
19

20

The Ninth Circuit next concluded that even where a noncitizen is already subject to a

21 final order of removal (i.e., there are no longer pending removal proceedings or direct judicial
22 review of such proceedings), and thus detained pursuant to § 1231(a), that such a person is
23
entitled to an individualized custody hearing before an IJ when facing prolonged detention.
24
Diouf v. Napolitano (“Diouf II”), 634 F.3d 1081, 1092 (9th Cir. 2011); see id. at 1086 (“We
25
26 now extend Casas-Castrillon to [noncitizens] detained under § 1231(a)(6).”). Notably, the

27 Diouf II court specifically defined “prolonged” detention as detention that reaches 180 days, or

28
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1 six months. See id. at 1092 n.13 (“As a general matter, detention is prolonged when it has

2 lasted six months and is expected to continue more than minimally beyond six months.”). In so

3 doing, the Diouf II court relied on Casas-Castrillon’s analysis of Demore, in addition to the
4
Supreme Court’s recognition of six months as a “presumptively reasonable period of
5
detention.” Zadvydas, 533 U.S. at 701.
6

7

Then, in a series of three separate decisions addressing a class action for detainees

8 facing prolonged detention under the general detention statutes—including 8 U.S.C. §§

9 1225(b), 1226 and 1231(a), see Rodriguez v. Hayes (“Rodriguez I”), 591 F.3d 1105, 1113 (9th
10
Cir. 2010)—the Ninth Circuit confirmed that all noncitizens subject to immigration detention
11
for six months or longer are entitled to automatic custody hearings before an IJ. Rodriguez III,
12
13 804 F.3d at 1085; see also Rodriguez II, 715 F.3d at 1139 (“Diouf II strongly suggested that

14 immigration detention becomes prolonged at the six-month mark regardless of the authorizing

15 statute . . . [and] that conclusion is consistent with the reasoning of Zadvydas, Demore, Casas

16
and Diouf II, and we so hold.”). Rodriguez II and Rodriguez III also reaffirmed that the
17
government must justify prolonged detention of each individual with clear and convincing
18
evidence. Rodriguez II, 715 F.3d at 1135; Rodriguez III, 804 F.3d at 1086-87.
19

20

Several decisions from this district also make clear that class members are entitled to

21 individualized custody hearings before an IJ regardless of which statute authorizes their
22 detention. See, e.g., Mercado Gonzalez v. Asher, No. C15-1778-MJP-BAT, 2016 WL 871073,
23
at *3 (W.D. Wash. Feb. 16, 2016), adopted, No. C15-1778-MJP, 2016 WL 865351 (W.D.
24
Wash. Mar. 7, 2016) (deciding that the Court need not determine whether a noncitizen is
25
26 detained pursuant to 8 U.S.C. §§ 1226 or 1231 as he was detained for more than six months and

27 thus entitled to a bond hearing under either statute); Martinez Mendoza v. Asher, No. C14-

28
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1 0811JCC, 2014 WL 8397145, at *2 (W.D. Wash. Sept. 16, 2014) (“Because, as this Court now

2 finds, petitioner’s detention falls under § 1226(a), he is entitled to a bond hearing under Casas-
3 Castrillon. However, this would remain the case even if petitioner’s detention were, in fact
4
governed by § 1231(a)(6) . . .”).
5
Class members, all of whom are subject to prolonged detention without a custody
6
7 redetermination before an IJ, are thus being unlawfully deprived of their rights under the INA.

8 In order to avoid serious constitutional concerns and offer adequate procedural safeguards for

9 class members, Defendants must provide all class members with individualized bond hearings

10
before an IJ in which the government bears the burden to justify each class member’s detention
11
with clear and convincing evidence.
12

13

2. Given the Court’s finding that class members are detained under 8 U.S.C. §

1231(a), Diouf II squarely controls this case.

14

Moreover, where the Court has determined that class members are subject to the
15

16 detention authority of § 1231(a), see supra § II.B, Defendants cannot seriously dispute that

17 Diouf II directly controls in this case. Although the Ninth Circuit determined that individuals in

18 withholding only proceedings after reinstatement are subject to detention under § 1231(a) and
19
thus not initially entitled to custody redetermination hearings before an IJ, it confirmed that
20
Diouf II governs the question of whether they are entitled to such hearings once their detention
21
becomes prolonged. See Padilla-Ramirez, 862 F.3d at 884 (citing Diouf II as direct authority
22
23 for this question). In fact, Defendants “acknowledge that this Court has previously held that

24 Diouf II applies in cases like the one at hand” but “urge the Court to reach a different result in

25 this case.” Dkt. 16 at 22 n.8.

26
Diouf II unambiguously held that “[a noncitizen] facing prolonged detention under §
27
1231(a)(6) is entitled to a bond hearing before an immigration judge and is entitled to be
28

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1 released from detention unless the government establishes that the [noncitizen] poses a risk of

2 flight or a danger to the community.” 634 F.3d at 1092. The Diouf II court declined to accord
3 Chevron deference to agency regulations implementing detention under § 1231(a)(6),
4
recognizing that “prolonged detention under § 1231(a)(6), without adequate procedural
5
protections, would raise ‘serious constitutional concerns.’” Id. at 1086; see also id. at 1090
6
7 (“We may not defer to DHS regulations interpreting § 1231(a)(6), however, if they raise grave

8 constitutional doubts.”) (citations omitted). Diouf II’s holding specifically requires a custody

9 redetermination hearing before an IJ as well as a hearing which places the burden of proof on
10
the government because it is based on the determination that agency regulations “do not afford
11
adequate procedural safeguards because they do not provide for an in-person hearing, they
12
13 place the burden on the alien rather than the government and they do not provide for a decision

14 by a neutral arbiter such as an immigration judge.” Id. at 1091 (citations omitted).

15

Consistent with Diouf II, “[j]udges in this District have uniformly determined that a

16
noncitizen who is subject to a reinstated removal order and in withholding only proceedings is
17
entitled to a bond hearing at the latest after he or she has been detained for six months. See,
18
e.g., Gonzalez v. Asher, No. C15-1778-MJP-BAT, 2016 WL 871073 (W.D. Wash. Feb. 16,
19

20 2016), adopted by 2016 WL 865361 (W.D. Wash. Mar. 7, 2016); Chavez-Barahona v. Asher,

21 C15-222-JCC, Dkt. 18 (W.D. Wash. May 29, 2015) (Report & Recommendation); Acevedo-
22 Rojas v. Clark, No. C14-1323-JLR, 2014 WL6908540, at * 5 (W.D. Wash. Dec. 8, 2014);
23
Giron-Castro v. Asher, No. C14-0867JLR, 2014 WL 8397147, at * 1, *3 (W.D. Wash. Oct. 2,
24
2014); Mendoza v. Asher, No. C14-811-JCC-JPD, 2014 WL 8397145 (W.D. Wash. Sept. 16,
25
26 2014).” Dkt. 22 at 3-4 (finding there is “a strong argument that . . . putative class members are

27 entitled to bond hearings after their detentions become prolonged”). Decisions from this district

28
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1 have also correctly placed the burden of proof on the government in these custody

2 redetermination hearings. See, e.g., Mercado Gonzalez v. Asher, 2016 WL 871073, at *1
3 (requiring that the petitioner “be provided an individualized bond hearing before an IJ where
4
the government bears the burden of establishing by clear and convincing evidence that he
5
presents a flight risk or a danger to the community”); Acevedo-Rojas v. Clark, 2014
6
7 WL6908540, at *6 (“. . . [Diouf II] dictates that she receive a bond hearing where the

8 government bears the burden of establishing that she presents a flight risk or a danger to the

9 community.”).
10
Throughout this lawsuit, Defendants have assumed the untenable position that Plaintiffs
11
“fall[] squarely within § 1231(a)(6),” Dkt. 26 at 2, but that Diouf II is inapposite. See, e.g., Dkt.
12
13 57 at 19 (asserting that this case presents “a qualitatively different set of circumstances and

14 government interests from those examined in Diouf II.”). Defendants have primarily attempted

15 to distinguish Diouf II by asserting that the petitioner there had been granted a stay of removal
16
by the Ninth Circuit pending a motion to reopen, rather than being placed in withholding only
17
proceedings after a final removal order was reinstated. See, e.g., Dkt. 26 at 11; Dkt. 57 at 19-
18
20. The argument that Diouf II applies only to a narrow subset of individuals detained under §
19
20 1231(a)(6) is meritless, for the Diouf II court specified that its holding pertains to all

21 individuals subject to prolonged detention under § 1231(a)(6), “who, for one reason or another,
22 have not yet been removed from the United States.” 634 F.3d at 1085. Courts in this district
23
have also repeatedly rejected the government’s attempts to argue that Diouf II is not applicable
24
to deciding the question of whether individuals subject to prolonged detention pending
25
26 withholding only proceedings are entitled to individualized custody hearings before an IJ. See,

27 e.g., Mendoza v. Asher, 2014 WL 8397145, at *2 (“Diouf II does not distinguish between

28
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1 categories of [noncitizens] whose detention is governed by § 1231(a)(6), and instead applies to

2 every [noncitizen] facing the prolonged detention under the statute”) (emphasis added);
3 Gonzalez v. Asher, 2016 WL 871073, at *4 (“Assuming Mr. Mercado is detained under §
4
1231(a)(6), the Court need not ‘extend’ Diouf II to find that it governs Mr. Mercado's case. The
5
Ninth Circuit limited its holding to [noncitizens] detained under § 1231(a)(6)—not to ‘certain
6
7 [noncitizens] detained under § 1231(a)(6),’ as respondents suggest.”).

8

Class members, who have been determined to be detained under § 1231(a), are

9 unquestionably “entitled to the same procedural safeguards against prolonged detention as

10
individuals detained under § 1226(a).” Diouf II, 634 F.3d at 1084. Class members have
11
established that they merit declaratory and injunctive relief as a matter of law.
12

13 C. The Due Process Clause entitles class members who have suffered prolonged detention

to individualized custody hearings in which the government bears of burden of

14

justifying their detention with clear and convincing evidence.

15

The Supreme Court has explained that “[f]reedom from imprisonment—from

16
government custody, detention, or other forms of physical restraint—lies at the heart of the
17
liberty [the Due Process] Clause protects.” Zadvydas, 533 U.S. at 690; see also id. at 718
18

19 (Kennedy, J., dissenting) (“Liberty under the Due Process Clause includes protection against

20 unlawful or arbitrary personal restraint or detention.”). While controlling caselaw clearly

21 demonstrates that the INA must be construed to afford individualized custody hearings to class
22
members, the Due Process Clause also provides an independent basis for granting relief. Like
23
the Supreme Court’s opinion in Zadvydas, the statutory interpretations issued by the Ninth
24
25 Circuit in Prieto-Romero, Casas-Castrillon, Diouf II, and the Rodriguez decisions are all
26 guided by the principal of statutory interpretation instructing courts to avoid interpreting

27 statutes in a manner that raises serious constitutional concerns. See supra § III.B.1; see also

28
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1 e.g., Zadvydas, 533 U.S. 678, 682 (“Based on our conclusion that indefinite detention of aliens

2 in the former category would raise serious constitutional concerns, we construe the statute to
3 contain an implicit ‘reasonable time’ limitation, the application of which is subject to federal-
4
court review.”); Rodriguez II, 715 F.3d at 1133 (“[T]he canon of constitutional avoidance
5
requires us to construe the government’s statutory mandatory detention authority under Section
6
7 1226(c) and Section 1225(b) as limited to a six-month period, subject to a finding of flight risk

8 or dangerousness.”).

9

As a threshold matter, Due Process Clause requires that civil detention be reasonably

10
related to a valid governmental purpose. Zadvydas, 533 U.S. at 690. In the immigration context,
11
the Supreme Court has recognized only two valid purposes for civil detention: to mitigate the
12

13 risks of danger to the community and to prevent flight. Id. at 690; Demore, 538 U.S. at 528. If

14 the government can protect these interests without detention, then detention does not serve a

15 valid purpose and violates the Due Process Clause. Detention ceases to be reasonably related to
16
its purpose where an individual has no opportunity to even request release, for such detention
17
lacks a particularized determination of flight risk or danger to the community. See id. at 690;
18
see also Matter of Patel, 15 I. & N. Dec. 666, 666 (BIA 1979) (noting that a noncitizen
19
20 “generally is not and should not be detained or required to post bond except on a finding that he

21 is a threat to the national security, or that he is a poor bail risk”) (citation omitted); accord
22 Matter of Andrade, 19 I. & N. Dec. at 488, 489 (BIA 1987).
23
Due process also requires adequate procedures to ensure that detention serves the valid
24
purpose. An individualized hearing before “a neutral administrative official” as to the purpose
25
26 of detention is a bedrock due process requirement for civil detention. Zadvydas, 533 U.S. at

27 721-23 (Kennedy, J., dissenting). Indeed, the Supreme Court has required hearings before

28
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1 neutral decisionmakers for far lesser interests, including for criminals seeking release on parole

2 (despite their having already been sentenced to the full term of their confinement), and even for
3 property deprivations. See, e.g., Morrissey v. Brewer, 408 U.S. 471 (1972). Defendants’ policy
4
as applied to persons in prolonged proceedings violates the Fifth Amendment’s protection
5
against arbitrary detention by subjecting class members to civil detention without any
6
7 procedural safeguards to ensure that their detention serves a valid purpose.

8

Moreover, the Supreme Court has often recognized the commonsense principle that

9 prolonged deprivations of liberty require greater procedural protections than brief ones. For
10
example, in the criminal context, an individual can be detained solely on a police officer’s
11
finding of probable cause, but only for 48 hours. County of Riverside v. McLaughlin, 500 U.S.
12
13 at 44, 55-56 (1991). Further pretrial detention requires a “prompt” judicial hearing by a neutral

14 arbiter both to validate the police officer’s probable cause finding and to determine whether the

15 detainee presents too great a flight risk or danger to be released while awaiting trial. United
16
States v. Salerno, 481 U.S. 739, 747 (1987). Where trial proceedings become lengthy, still
17
further process is required. See Hutto v. Finney, 437 U.S. 678, 685-86 (1978) (holding in
18
Eighth Amendment context that “it is equally plain . . . that the length of confinement cannot be
19
20 ignored in deciding whether [a] confinement meets constitutional standards”).

21

The basic principle that due process requires more robust procedures when detention

22 becomes prolonged also runs throughout the Supreme Court’s civil commitment doctrine. An
23
individual found incompetent to stand trial may initially be held to attempt restoration, but only
24
for a “reasonable period of time.” Jackson v. Indiana, 406 U.S. 715, 733 (1972). Detention
25
26 beyond the “initial commitment” requires additional safeguards, including individualized

27 consideration of dangerousness. Id. at 736. A state may commit a convicted prisoner to a

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1 mental institution “for observation limited in duration to a brief period” without additional

2 procedures, but only because “lesser safeguards may be appropriate” for “shortterm
3 confinement.” McNeil, 407 U.S. at 249-50. Similarly, “insanity acquittees may be initially
4
held” on procedures less rigorous than those applicable to civil committees, but when detention
5
becomes prolonged they must be afforded individualized hearings concerning flight risk or
6
7 danger. Foucha v. Louisiana, 504 U.S. 71, 76 n.4 (1992) (emphasis added).

8

The Supreme Court has also applied these principles to the immigration context in

9 Zadvydas. 533 U.S. at 690-91. Zadvydas examined the constitutional concerns raised by the
10
government’s detention of individuals who had lost their cases and were awaiting removal. The
11
Zadvydas court presumed the validity of such detention for 90 days, but required greater
12
13 justification for those detained more than six months. Id. at 701 (recognizing “six months” as

14 the “presumptively reasonable period of detention” and explaining that the constitutionality of

15 the detention changes “as the period of . . . confinement grows.”); see also Demore, 538 U.S. at
16
529 (explaining this aspect of Zadvydas). Under Zadvydas, post-order detentions beyond six
17
months require more scrutiny to ensure that they remain reasonable in relation to their purpose.
18
While the Supreme Court upheld a “brief period” of mandatory detention in Demore,
19
20 538 U.S. at 513, it did so upon the understanding that “the detention at stake under § 1226(c)

21 lasts roughly a month and a half in the vast majority of cases . . . and about five months in the
22 minority of cases.” Id. at 529. Demore also involved the detention of noncitizens with
23
qualifying convictions who had conceded their deportability, making entry of a removal order
24
within a short period of time virtually inevitable. 538 U.S. at 522 n.6, 528. Class members, by
25
26 contrast, face prolonged detention. Every one of them, by definition, have been found by

27 Defendants to have a reasonable fear of persecution or torture, demonstrating a strong claim for

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1 relief and entitling them to full proceedings before IJs where they apply for withholding of

2 removal or relief under the Convention Against Torture. 8 C.F.R. 208.31(e). Due process thus
3 requires individualized custody hearings for class members in order to ensure that their
4
detention is justified by a sufficient flight risk or danger to the community.
5
Like other forms of civil detention, immigration detention that is unnecessary violates
6
7 due process. If an individual does not present a flight risk or danger that warrants continued

8 detention, the Constitution forbids it. While Congress may be justified in ordering that persons

9 subject to summary proceedings are detained throughout that process, this reasoning does not
10
apply to class members, all who have been found to have a reasonable fear of persecution or
11
torture and thus entitled to full withholding only proceedings before the immigration judge.
12
13 And because prolonged detention requires more rigorous procedures to ensure that detention

14 remains reasonable in relation to its purpose, due process requires Defendants to provide class

15 members with individualized custody hearings before an IJ in order to determine whether their

16
continued detention is justified by sufficient risk of danger or flight.

17

D. Class members are entitled to immediate declaratory and injunctive relief regardless

18

of any appeal or potential future changes in the law.

19
The Ninth Circuit has repeatedly made clear—and in addition, the decisions from this
20
district have uniformly held—that all individuals are entitled to bond hearings when their
21
detention becomes prolonged. See Dkt. 22 at 3-4 (recognizing previous decisions on point by
22

23 courts in this district). Yet Defendants continue to deny individualized custody hearings to class

24 members, justifying their actions by finding trivial ways to distinguish from Diouf II and other

25 cases. Defendants seek to avoid their obligations under clear controlling caselaw with the hope

26
that the Supreme Court will change the law in a way that will provide them with a defense in
27
this case. See, e.g., Dkt. 5 at 3-4 (moving to stay this lawsuit pending the Supreme Court’s
28

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1 review of Rodriguez III) (citing Jennings v. Rodriguez, 136 S.Ct. 2489); Dkt. 68 at 4-5 (arguing

2 Plaintiff Flores’s prolonged detention claim should be dismissed because “the very legal issue”
3 is being reviewed by the Supreme Court in Jennings v. Rodriguez).
4
Defendants may not choose to “consider[] and cast aside” binding authority, for
5
“caselaw on point is the law.” Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001)
6
7 (emphasis). Defendants also may not refuse to comply with the law simply because they hope

8 the law will change at some point in the future. Such conduct finds no legal support, as pending

9 appeals before the Supreme Court do not diminish the binding nature of circuit precedent. See
10
Yong v. I.N.S., 208 F.3d 1116, 1119 n. 2 (9th Cir. 2000) (“[O]nce a federal circuit court issues a
11
decision, the district courts within that circuit are bound to follow it and have no authority to
12
13 await a ruling by the Supreme Court before applying the circuit court’s decision as binding

14 authority.”); Hart v. Massanari, 266 F.3d at 1170 (“Binding authority must be followed unless

15 and until overruled by a body competent to do so.”). Class members thus seek declaratory and

16
injunctive relief from this Court reinforcing Defendants’ obligation to abide by controlling
17
caselaw, and rejecting their policy and practice of nonacquiescence.
18
IV. CONCLUSION
19

20

Class members respectfully request that the Court grant this motion and enter summary

21 judgment in their favor, declaring Defendants’ policy and practice unlawful and in violation of
22 Ninth Circuit caselaw. The Court should order Defendants to provide all class members
23
automatic individualized custody hearings before the IJ and require that the government bear
24
the burden of justifying each class member’s detention by clear and convincing evidence.
25

26
Dated this 14th day of December, 2017.
27

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1 Respectfully submitted,
2 NORTHWEST IMMIGRANT RIGHTS PROJECT
3 s/ Matt Adams 4 Matt Adams, WSBA No. 28287
615 Second Avenue, Suite 400 5 Seattle, WA 98104
(206) 957-8611 6 matt@nwirp.org
7
s/ Glenda M. Aldana Madrid 8 Glenda M. Aldana Madrid, WSBA No. 46987
615 Second Avenue, Suite 400 9 Seattle, WA 98104 10 (206) 957-8646
glenda@nwirp.org
11
s/ Leila Kang 12 Leila Kang, WSBA No. 48048
615 Second Avenue, Suite 400
13
Seattle, WA 98104 14 (206) 957-8608
leila@nwirp.org
15
16 Attorneys for Plaintiffs
17
18
19
20
21
22
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24
25
26
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1

CERTIFICATE OF SERVICE

2

I, Matt Adams, hereby certify that on December 14, 2017, I electronically filed the

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

5 Dated: December 14, 2017

6 s/ Matt Adams 7 Matt Adams, WSBA No. 28287
615 Second Avenue, Suite 400 8 Seattle, WA 98104
(206) 957-8611 9 matt@nwirp.org
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 Case 2:16-cv-01454-JLR Document 77-1 Filed 01/23/18 Page 1 of 4

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

7

AT SEATTLE

8 ARTURO MARTINEZ BAÑOS, et al.,

9

Plaintiffs-Petitioners,

10

v.

11 NATHALIE ASHER, et al.,

12

Defendants-Respondents.

Case No. C16-1454-JLR
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

13

14

Having reviewed the Report and Recommendation of the Honorable Brian A. Tsuchida,

15 United States Magistrate Judge, and the balance of the record, and Court finds and ORDERS:

16

1. The Report and Recommendation is ADOPTED.

17

2. Mr. Flores’s motion for summary judgment, Dkt. 72, is GRANTED in part and

18 DENIED in part, and the Government’s cross-motion for summary judgment, Dkt. 75, is

19 GRANTED in part and DENIED in part.

20

3. The Court previously certified a class defined as “all individuals who (1) were

21 placed in withholding only proceedings under 8 C.F.R. § 1208.31(e) in the Western District of

22 Washington after having a removal order reinstated, and (2) have been detained for 180 days (a)

23

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT- 1

Case 2:16-cv-01454-JLR Document 77-1 Filed 01/23/18 Page 2 of 4

1 without a custody hearing or (b) since receiving a custody hearing.” The Court appointed Edwin

2 Flores Tejada (“Mr. Flores”) as the class representative and his counsel as class counsel.

3

4. Judgement is GRANTED in favor of class members and against the Government

4 with respect to class members’ second cause of action alleging that they are entitled to automatic

5 custody hearings after six months detention. See Dkt. 38 at ¶¶ 96-98.

6

5. Judgement is GRANTED in favor of the Government and against class members

7 with respect to class members’ third cause of action alleging a due process violation. See Dkt.

8 38 at ¶¶ 99-102.

9

6. The Government has violated 8 U.S.C. § 1231(a)(6), as construed by the Ninth

10 Circuit in Diouf v. Napolitano (“Diouf II”), 634 F.3d 1081 (9th Cir. 2011), by failing to provide

11 class members with individualized custody hearings before an IJ where the government is

12 required to justify continued detention by clear and convincing evidence.

13

7. The Government is ENJOINED from enforcing their policy and practice of

14 failing to provide class members with individualized custody hearings before an IJ every six

15 months.

16

8. The Government shall provide each class member with a custody hearing before

17 an IJ as soon as the individual’s detention reaches 180 days.

18

9. For class members who have already been detained for more than 180 days as of

19 the date of this Order, but who have not yet received a custody hearing before an IJ, the

20 Government shall provide such a hearing within 21 days of this Order.

21

10. The Government shall thereafter provide custody hearings to class members at

22 every 180-day mark of their detention.

23

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT- 2

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1

11. All of the custody hearings conducted pursuant to this Order shall comply with

2 the Ninth Circuit’s procedural requirements, as established in Diouf II, Singh v. Holder, 638 F.3d

3 1196 (9th Cir. 2011), and Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015).

4

12. Within 30 days of this Order, the Government shall file a report describing the

5 steps taken to timely identify all current and future class members and to ensure that they receive

6 custody hearings and notice of those hearings. The Government also shall file under seal a list

7 containing each class member’s name and “A number,” the date of any scheduled or completed

8 custody hearing, the IJ who conducted or will conduct the hearing, the bond amount set, if any,

9 and whether any appeal has been taken.

10

13. The Government shall provide simultaneous notice of class members’ custody

11 hearings to both class members and class counsel.

12

14. If the Government determines that an individual is not a class member even

13 though that individual (a) was placed in withholding only proceedings after have a removal order

14 reinstated and (b) has been in the Government’s custody for 180 days in the Western District of

15 Washington without a custody hearing, or since reciving a custody hearing, the Government

16 shall notify class counsel of that individual’s circumstances and the reason why they believe that

17 individual is not a class member.

18

15. This Court retains jurisdiction to entertain disputes over the enforcement of this

19 Order and to enter further orders as may be necessary or appropriate to implement and enforce

20 the provisions of this Order and Judgment.

21 \\

22 \\

23

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT- 3

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1

16. The Clerk shall send a copy of this Order to the parties and to Judge Tsuchida.

2

DATED this ______ day of _____________, 2018.

3

4

JAMES L. ROBART

United States District Judge

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ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT- 4

 
 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

EDWIN OMAR FLORES TEJADA; GERMAN VENTURA HERNANDEZ, on behalf of themselves as individuals and on behalf of others similarly situated*,
Petitioners-Appellees,
v.
ELIZABETH GODFREY, Field Office Director; WILLIAM P. BARR, Attorney General; MATTHEW T. ALBENCE, Acting Director of U.S. Immigration and Customs Enforcement; LOWELL CLARK, Warden; JAMES MCHENRY, Director of Executive Office for Immigration Review;

No. 18-35460 D.C. No.
2:16-cv-01454-JLR
OPINION

* Because the district court dismissed Arturo Martinez Baños as a named plaintiff long before the orders at issue in this case, we have removed him from the case caption.

2

FLORES TEJADA V. GODFREY

CHAD WOLF, Acting Secretary, Department of Homeland Security,**
Respondents-Appellants.

Appeal from the United States District Court for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted November 13, 2019 Pasadena, California
Filed April 7, 2020
Before: FERDINAND F. FERNANDEZ, MILAN D. SMITH, JR., and ERIC D. MILLER, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.; Partial Concurrence and Partial Dissent by
Judge Fernandez

** Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Chad Wolf is automatically substituted as the Acting Secretary of the U.S. Department of Homeland Security and Matthew T. Albence is automatically substituted as the Acting Director of U.S. Immigration and Customs Enforcement.

FLORES TEJADA V. GODFREY

3

SUMMARY***

Immigration
In an action where Plaintiffs—who represent a certified class of aliens with final removal orders who are placed in withholding-only removal proceedings, and who are detained pursuant to 8 U.S.C. § 1231(a)(6) in the Western District of Washington—challenged their detention, the panel: 1) affirmed the district court’s judgment and permanent injunction insofar as they require the Government to provide each class member detained for six months or longer with a bond hearing before an immigration judge where the burden is on the Government to justify continued detention; 2) reversed and vacated with respect to the requirement that the Government provide class members with additional bond hearings every six months; and 3) reversed and vacated the partial judgment for the Government on Plaintiffs’ due process claims, and remanded.
The district court granted partial summary judgment for Plaintiffs and the class on their statutory claims and, for that reason, granted partial summary judgment for the Government on Plaintiffs’ due process claims. The court’s permanent injunction requires three things: 1) based on Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) (Diouf II), the Government must provide a class member detained for six months or longer with a bond hearing before an IJ when the class member’s release or removal is not imminent;
*** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

4

FLORES TEJADA V. GODFREY

2) based on Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011), the Government must justify a class member’s continued detention by clear and convincing evidence showing that the alien is a flight risk or a danger to the community; and 3) the Government must provide a class member who remains detained after an initial bond hearing at six months with additional bond hearings every six months thereafter.

The panel explained that this appeal presented the same core question the panel addressed the same day in Aleman Gonzalez v. Barr, No. 18-16465: whether the court’s construction in Diouf II survives the Supreme Court’s decision in Jennings v. Rodriguez, 138 S. Ct. 830 (2018). The panel reiterated its conclusions from Aleman-Gonzalez that applied equally here: 1) Diouf II’s construction of § 1231(a)(6) to require an individualized bond hearing for an alien subject to prolonged detention is not clearly irreconcilable with Jennings; 2) Jennings does not abrogate the court’s constitutional due process holding in Singh regarding the applicable burden of proof; and 3) the district court did not improperly re-apply the canon of constitutional avoidance to § 1231(a)(6) in contravention of Zadvydas v. Davis, 533 U.S. 678 (2001), or violate Clark v. Martinez, 543 U.S. 371 (2005).

However, the panel concluded that the district court erred by requiring the Government to provide class members with additional statutory bond hearings every six months. The panel explained that the district court could not rely on Diouf II to sustain that requirement because, in that case, the court applied the canon of constitutional avoidance to construe § 1231(a)(6) as requiring an individualized bond hearing; it did not apply the canon to read an additional bond hearings requirement into the statute. Further, the panel concluded that this court’s decision in Robbins v. Rodriguez,

FLORES TEJADA V. GODFREY

5

804 F.3d 1060 (9th Cir. 2015) (Rodriguez III), which required periodic bond hearings every six months for aliens detained under other immigration detention statutes, could not support the additional bond hearing requirements imposed by the district court given the Supreme Court’s reversal of Rodriguez III in Jennings.

Noting that Jennings did not address an additional bond hearing requirement in the context of § 1231(a)(6), the panel nonetheless found its reasoning persuasive. In Jennings, the Supreme Court made clear that Zadvydas’s construction of § 1231(a)(6) to identify six months as a presumptively reasonable length of detention was already “a notably generous application of the constitutional-avoidance canon.” Although Diouf II’s six-month bond hearing construction coincides with Zadvydas’s six-month period, the panel found no support in either Zadvydas’s reading of § 1231(a)(6) or the statutory text to construe the provision as requiring additional bond hearings. Accordingly, the panel reversed and vacated the judgment and permanent injunction for Plaintiffs in this regard.

In doing so, the panel also reversed and vacated partial judgment for the Government on Plaintiffs’ due process claims. The panel explained that, because the district court found in favor of Plaintiffs on their statutory claims, the district court effectively treated Plaintiffs’ due process claims as moot. Observing that that is no longer the case given the panel’s decision, the panel remanded for the district court to consider Plaintiffs’ constitutional claims.

Concurring in part and dissenting in part, Judge Fernandez wrote that he would vacate the district court’s judgment and permanent injunction entirely. Therefore, Judge Fernandez concurred in the majority opinion to the

6

FLORES TEJADA V. GODFREY

extent that it vacated and remanded on Plaintiffs’ constitutional claims. However, in light of the views he expressed in his dissenting opinion in Aleman Gonzalez, Judge Fernandez respectfully dissented from the majority opinion to the extent it affirmed the district court’s judgment and leaves the permanent injunction in place.

COUNSEL
Matthew P. Seamon (argued) and Gladys M. Steffens Guzman, Trial Attorneys; Gisela A. Westwater, 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 Respondents-Appellants.
Matt Adams (argued), Leila Kang, and Aaron Korthuis, Northwest Immigrants Rights Project, Seattle, Washington, for Petitioners-Appellees.

OPINION
M. SMITH, Circuit Judge:
Edwin Omar Flores Tejada and German Ventura Hernandez (Plaintiffs) represent a certified class of aliens with final removal orders who are placed in withholdingonly proceedings, and who are detained in the jurisdiction of the Western District of Washington (the District) for six months or longer without an individualized bond hearing. In this suit, Plaintiffs challenged Defendants-Appellants’

FLORES TEJADA V. GODFREY

7

(hereinafter, the Government1) alleged policy and practice of subjecting class members to prolonged detention without an individualized bond hearing before an immigration judge (IJ). Plaintiffs claimed statutory rights to such hearings pursuant to the immigration detention statutes, as well as a constitutional due process right to such hearings.

The district court granted partial summary judgment for Plaintiffs and the class on their statutory claims and, for that reason, granted partial summary judgment for the Government on Plaintiffs’ due process claims. The court entered a permanent injunction that requires three things. First, based on our decision in Diouf v. Napolitano, 634 F.3d 1081, 1086, 1092 & n.13 (9th Cir. 2011) (Diouf II), the Government must provide a class member who it has detained for six months or longer with a bond hearing before an IJ when the class member’s release or removal is not imminent. Second, based on our decision in Singh v. Holder, 638 F.3d 1196, 1203−04 (9th Cir. 2011), the Government must justify a class member’s continued detention by clear and convincing evidence showing that the alien is a flight risk or a danger to the community. Third, the Government must provide class members who remain detained even after an initial bond hearing at six months with additional bond hearings every six months thereafter. The Government

1 We use the term “the Government” to refer collectively to the following Defendants-Respondents who Plaintiffs sued in their official capacities: (1) Elizabeth Godfrey, Field Office Director; (2) William P. Barr, U.S. Attorney General; (3) Matthew T. Albence, Acting Director of U.S. Immigration and Customs Enforcement; (4) Lowell Clark, Warden, (5) James McHenry, Director of the Executive Office for Immigration Review, (6) Chad Wolf, Acting Secretary of the U.S. Department of Homeland Security. Our use of the uncapitalized term “the government” should not be construed as a reference to the Defendants-Respondents.

8

FLORES TEJADA V. GODFREY

urges us to reverse and vacate the final judgment and permanent injunction on Plaintiffs’ statutory claims.
This appeal presents the same core question we decide today in Aleman Gonzalez v. Barr, No. 18-16465: whether our construction of § 1231(a)(6) in Diouf II survives the Supreme Court’s decision in Jennings v. Rodriguez, 138 S. Ct. 830 (2018). Our answer remains the same here. We affirm the district court’s judgment and permanent injunction insofar as they conform to our construction of § 1231(a)(6) in Diouf II. We also affirm insofar as the judgment and permanent injunction require the Government to the satisfy the constitutional burden of proof we identified in Singh.
However, unlike Aleman Gonzalez, this appeal presents us with a different question regarding our construction of § 1231(a)(6). The district court ordered the Government to provide class members with additional bond hearings every six months. We hold that the court erroneously imposed this requirement as a statutory matter because we did not construe § 1231(a)(6) as requiring this in Diouf II, nor do we find any support for this requirement. We therefore partially reverse and vacate the judgment and permanent injunction, and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND2
Edwin Flores Tejada and German Ventura Hernandez joined this suit upon the filing of an amended complaint and petition for a writ of habeas corpus in January 2017. Flores

2 We do not retrace the statutory and regulatory background set forth in Aleman Gonzalez, and instead limit our focus to discussing the distinct aspects of the proceedings in this case.

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Tejada and Ventura Hernandez are noncitizens against whom the Government reinstated prior removal orders pursuant to 8 U.S.C. § 1231(a)(5). The Government detained and placed each in withholding-only proceedings pursuant to 8 C.F.R. § 1208.31(e) after an asylum officer determined that each had a reasonable fear of persecution or torture if returned to his country of origin. Plaintiffs alleged that the Government failed to provide them with an individualized statutory bond hearing before an IJ, in accordance with our court’s precedents. On behalf of a putative class of similarly situated aliens in the District, Plaintiffs claimed a statutory right to an individualized bond hearing pursuant to 8 U.S.C. § 1226(a) and our decision in Robbins v. Rodriguez, 804 F.3d 1060 (9th Cir. 2015) (Rodriguez III).3 Plaintiffs further claimed a statutory right to a bond hearing pursuant to any of the immigration detention statutes as well as a constitutional due process right to such a hearing.
After the amended complaint’s filing, we held in Padilla-Ramirez v. Bible, 862 F.3d 881, 884–87 (9th Cir. 2017), amended by, 882 F.3d 826, 830–33 (9th Cir. 2018), that aliens with reinstated removal orders who are placed in

3 Given the then-absence of Ninth Circuit case law, Plaintiffs claimed that they were detained pursuant to § 1226(a), finding support in Guerra v. Shanahan, 831 F.3d 59 (2d Cir. 2016). In Guerra, the Second Circuit held that aliens with reinstated final removal orders who are placed in withholding proceedings are subject to detention pursuant to § 1226(a). Id. at 62–64. We expressly rejected this approach in Padilla-Ramirez v. Bible, 862 F.3d at 888–89, as amended, 882 F.3d at 834–35, to hold that such aliens are detained pursuant to § 1231(a)(6). The Third Circuit has expressly adopted our approach, GuerreroSanchez v. Warden York Cty. Prison, 905 F.3d 208, 216–19 (3d Cir. 2018), whereas the Fourth Circuit has expressly adopted the Second Circuit’s approach, Guzman Chavez v. Hott, 940 F.3d 867, 876–77, 882 (4th Cir. 2019).

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withholding-only proceedings are detained pursuant to § 1231(a)(6). Because of that decision, the district court denied Plaintiffs’ request for a preliminary injunction that would have required the Government to provide bond hearings pursuant to the regulation applicable to aliens detained pursuant to § 1226(a). 8 C.F.R. § 1236.1(d)(1). Thereafter, upon Plaintiffs’ motion, the district court certified a class of: “[a]ll individuals who (1) were placed in withholding only proceedings under 8 C.F.R. § 1208.31(e) in the [District] after having a removal order reinstated, and (2) have been detained for 180 days (a) without a custody hearing or (b) since receiving a custody hearing.”
The parties cross-moved for summary judgment on Plaintiffs’ claims. The magistrate judge recommended granting partial summary judgment for Plaintiffs on their statutory claims. The magistrate determined that Diouf II requires the Government to provide class members with an individualized bond hearing, except for class members whose release or removal is not imminent. The magistrate determined that “[c]lass members must automatically receive such bond hearings after they have been detained for 180 days and every 180 days thereafter” pursuant to Diouf II, 634 F.3d at 1092, and Rodriguez III, 804 F.3d at 1085, 1089. These hearings had to “comply with the other procedural safeguards established in Singh and Rodriguez III,” with the Government bearing the burden of justifying continued detention by clear and convincing evidence. The magistrate recommended partial summary judgment for the Government on Plaintiffs’ due process claims because “class members are entitled to relief under § 1231(a)(6), as construed by the Ninth Circuit in Diouf II.”
In the wake of Jennings, the parties notified the district court of their views about Jennings’s impact on the summary

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judgment motions. The court determined that Diouf II and Jennings are not clearly irreconcilable, and thus adopted and approved the magistrate’s recommendations. The court entered a final judgment, and a permanent injunction for Plaintiffs on their statutory claims. The Government timely appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over the appeal from the district court’s final judgment pursuant to 28 U.S.C. § 1291. “We review a grant of summary judgment de novo.” Pavoni v. Chrysler Grp., LLC, 789 F.3d 1095, 1098 (9th Cir. 2015). “We review permanent injunctions under three standards: we review factual findings for clear error, legal conclusions de novo, and the scope of the injunction for abuse of discretion.” United States v. Washington, 853 F.3d 946, 962 (9th Cir. 2017).
ANALYSIS
The Government contends that the district court erred by relying on Diouf II to conclude that the class members here are entitled to a bond hearing every 180 days before an IJ, at which the Government bears a clear and convincing burden of proof. The Government further argues that the district court impermissibly “re-applied” the canon of constitutional avoidance to § 1231(a)(6) in contravention of Zadvydas v. Davis, 533 U.S. 678 (2001), and Clark v. Martinez, 543 U.S. 371 (2005). Most of the Government’s arguments here are indistinguishable from those we have considered and rejected in Aleman Gonzalez.
We will not retread our analysis in Aleman Gonzalez, but instead we reiterate our conclusions there that apply equally here. First, Diouf II’s construction of § 1231(a)(6) to require

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an individualized bond hearing for an alien subject to prolonged detention is not clearly irreconcilable with Jennings. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc). Consistent with Diouf II, 634 F.3d 1086, 1092 & n.13, we affirm the judgment and injunction’s requirement that the Government must provide class members with an individualized bond hearing after six months of detention when a class member’s release or removal is not imminent. Second, Jennings does not abrogate our constitutional due process holding in Singh regarding the applicable burden of proof at the bond hearing. Consistent with Singh, 638 F.3d at 1203–04, we affirm the judgment and injunction’s requirement that the Government must bear a clear and convincing burden of proof to justify an alien’s continued detention. Third, the district court did not improperly re-apply the canon of constitutional avoidance to § 1231(a)(6) or violate Clark. Consistent with Clark, 543 U.S. at 378, the judgment and injunction apply the same construction of § 1231(a)(6) to all class members.
Our affirmance of the judgment and injunction, however, goes no further. In addition to the foregoing requirements we have affirmed, the district court agreed with the magistrate judge’s recommendation to order the Government to provide class members with additional statutory bond hearings every six months. The district court imposed this additional bond hearings requirement based on its conclusion that Jennings did not address § 1231(a)(6) and that Diouf II remains binding. That conclusion was error because we did not address the availability of additional bond hearings every six months in Diouf II. In fact, we have never squarely interpreted § 1231(a)(6) to require them.
In Diouf II, we applied the canon of constitutional avoidance to construe § 1231(a)(6) as “requiring an

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individualized bond hearing, before an immigration judge, for aliens facing prolonged detention under that provision,” Diouf II, 634 F.3d at 1086 (emphasis added), subject to whether the alien’s release or removal is imminent, id. at 1092 n.13. We explained that “[s]uch aliens are entitled to release on bond unless the government establishes that the alien is a flight risk or will be a danger to the community.” Id. at 1086. Although we suggested that greater procedural safeguards are required as the length of detention increases, we did so in the context of construing § 1231(a)(6) to require a bond hearing before an IJ after six months of detention, something which the government’s post-Zadvydas regulations did not provide. Id. at 1089–92. We did not apply the canon to read any other requirements into § 1231(a)(6), let alone an additional bond hearings requirement. Thus, the court could not rely on Diouf II to sustain the requirement.
As the magistrate judge recognized, our decision in Rodriguez III—not Diouf II—established an additional bond hearings requirement in the context of an immigration detention statute.4 In Rodriguez III, we relied on Diouf II’s abstract discussion of the necessity of greater procedural protections as the length of detention increases to hold that, in the context of § 1226(a), “the government must provide periodic bond hearings every six months so that noncitizens may challenge their continued detention as ‘the period of . . .

4 We question whether Rodriguez III could alone provide the basis for the additional bond hearings requirement for the § 1231(a)(6) class here. Rodriguez III made clear that aliens detained pursuant to § 1231(a)(6) were not class members in that case. Rodriguez III, 804 F.3d at 1086 (“Simply put, the § 1231(a) class does not exist.”). Although Rodriguez III imposed additional procedural requirements, it did so only with respect to aliens detained pursuant to §§ 1225, 1226(a), and 1226(c). Compare id. with id. at 1086–1090.

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confinement grows.’” Rodriguez III, 804 F.3d at 1089 (quoting Diouf II, 634 F.3d at 1091).
Jennings defined “periodic bond hearing” to encompass a bond hearing held after an initial six months of detention, Jennings, 138 S. Ct. at 850–51, and rejected the imposition of such a “periodic bond hearing” requirement onto § 1226(a), id. at 847−48. Although we have already explained in Aleman Gonzalez why Jennings does not undercut our construction of § 1231(a)(6) in Diouf II as requiring a bond hearing after six months of detention, that determination cannot sustain the additional bond hearings requirement the district court imposed here. The court did not identify any authority other than our now-reversed decision in Rodriguez III to support its additional bond hearings requirement, nor are we are aware of any. Rodriguez III cannot support the additional bond hearings requirement the district court ordered in its judgment and permanent injunction given Jennings’ reversal.
We have not previously considered whether § 1231(a)(6) can support an additional bond hearings requirement. While Jennings did not directly address such a requirement in the context of § 1231(a)(6), we find its reasoning persuasive. Jennings made clear that Zadvydas’s construction of § 1231(a)(6) to identify six months as a presumptively reasonable length of detention was already “a notably generous application of the constitutional-avoidance canon.” Jennings, 138 S. Ct. at 843. Although Diouf II’s six-month bond hearing construction coincides with Zadvydas’s sixmonth period, we find no support in either Zadvydas’s reading of § 1231(a)(6) or the statutory text itself to plausibly construe the provision as requiring additional bond hearings every six months. We accordingly reverse and

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vacate the judgment and permanent injunction for Plaintiffs in this regard.5
In doing so, we reverse and vacate the partial judgment for the Government on Plaintiffs’ due process claims. The district court determined that granting summary judgment for Plaintiffs on the § 1231(a)(6) statutory claim warranted summary judgment for the Government on Plaintiffs’ due process claims. We understand the district court to have effectively treated Plaintiffs’ due process claims as moot. That is no longer the case given our decision today. Plaintiffs have requested a remand to allow the district court to consider their constitutional claims if we reversed on any statutory issues. At oral argument, the Government did not object to such a remand. We therefore conclude that a remand is appropriate so that the district court can consider Plaintiffs’ constitutional claims. Cf. Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1035 n.12 (9th Cir. 2012).
CONCLUSION
The district court correctly determined that our controlling construction of § 1231(a)(6) in Diouf II requires the Government to provide a bond hearing to class members detained in the District whose release or removal is not imminent. The court also properly placed the appropriate burden of proof on the Government at such a hearing. We affirm the final judgment and permanent injunction to this effect.

5 We underscore that our vacatur of the judgment and permanent injunction’s additional bond hearings requirement as a statutory matter does not foreclose any class member from pursuing habeas relief in accordance with Zadvydas.

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We otherwise vacate the judgment and permanent injunction insofar as they require, as a statutory matter, that the Government provide class members with additional bond hearings every six months beyond the initial bond hearing that Diouf II requires. Consequently, we vacate the judgment for the Government on Plaintiffs’ due process claims and remand for further proceedings.
AFFIRMED in part, REVERSED and VACATED in part, and REMANDED. Each party shall bear its own costs.

FERNANDEZ, Circuit Judge, concurring in part and dissenting in part:
I would vacate the district court’s judgment and permanent injunction entirely. Therefore, I concur in the majority opinion, for the reasons stated therein, to the extent that it vacates the judgment and permanent injunction and remands for further proceedings on Plaintiffs’ constitutional claim. However, in light of the views I expressed in my dissenting opinion in Aleman Gonzalez v. Barr, No. 1816465, slip op. at 58 (9th Cir. April 7, 2020), I respectfully dissent from the majority opinion to the extent that it affirms the district court’s judgment and leaves the permanent injunction in place.