Case 2:07-cv-03239-TJH-RNB Document 33 Filed 03/19/08 Page 1 of 1 Page ID #:36

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United States District Court

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Central District of California

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Western Division

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ALEJANDRO RODRIGUEZ, et al.,

CV 07-03239 TJH (RNB)

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Petitioners,

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v.

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JAMES HAYES, et al.,

(#10O,#r2d6e,r#30)

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Respondents.

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The Court has considered Respondents’motion to dismiss, Petitioners’ motion

19 to certify the class, and Respondents’ex parte application to stay pending a ruling on

20 the motion to dismiss, together with the moving and opposing papers.

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It is Ordered that the motion to dismiss, the motion for class certification and

22 the ex parte application for a stay be, and hereby are, Denied.

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24 Date: March 19, 2008

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___________________________________

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Terry J. Hatter, Jr.

Senior United States District Judge

 
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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED
JAN 122010
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

ALEJANDRO RODRIGUEZ,
Petitioner - Appellant,
v.
JAMES HAYES, Immigration and Customs Enforcement Los Angles District Field Officer Director; et aI.,
Respondents - Appellees.

No. 08-56156

D.C. No. 2:07-CV-03239-TJH-RNB

U.S. District Court for Central

California, Lo;.s.:..:A::n;s;ge:::le=.;s~=-==~_ _ _-,

MANDATE

RECEIVED CLERK. U.S. DISTRICT COURT

JAN 1 2 2010

CEN BY

OF CALIFORNIA DEPUTY

The judgment of this Court, entered August 20, 2009, takes effect this date.

This constitutes the formal mandate of this Court issued pursuant to Rule

41(a) of the Federal Rules of Appellate Procedure.

FOR THE COURT:
Molly C. Dwyer Clerk of Court /s/ Theresa Benitez Deputy Clerk

Case 2:07-cv-03239-TJH-RNB Document 51 Filed 01/12/10 Page 2 of 30 Page ID #:62

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ALEJANDRO RODRIGUEZ, Petitioner-Appellant,
v.
JAMES HAYES, Immigration and Customs Enforcement Los Angeles District Field Officer Director; GEORGE MOLINAR, Chief of Detention and Removal Operations, San Pedro Detention Facility; JANET NAPOLITANO,* Secretary, Department of Homeland Security; ERIC H. HOLDER Jr., Attorney General; PAUL WALTERS; LEE BACA, Sheriff of Los Angeles County; SAMMY JONES, Chief of the Custody Operations Division of the Los Angeles County Sheriffs Department,
Respondents-Appellees.

No. 08-56156
D.C. No. 2:07 -CV -03239-
TJH-RNB
OPINION

Appeal from the United States District Court for the Central District of California
Terry J. Hatter, District Judge, Presiding
Argued and Submitted May 5, 2009-Pasadena, California
*Janet Napolitano is substituted for her predecessor, Michael Chertoff, as Secretary of the Department of Homeland Security, pursuant to Fed. R. App. P.43(c)(2).
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RODRIGUEZ v. HAYES Filed August 20, 2009

Before: Betty B. Fletcher, Raymond C. Fisher and Ronald M. Gould, Circuit Judges.

Opinion by Judge B. Fletcher

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COUNSEL
Peter J. Eliasberg and Ahilan T. Arulanantham (argued), American Civil Liberties Union Foundation of Southern California, Los Angeles, California; Judy Rabinowitz and Cecillia D. Wang, American Civil Liberties Foundation Immigrants'

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RODRIGUEZ v. HAYES

Rights Project, New York, New York, and San Francisco, California; Jayashri Srikantiah, Stanford Law School bmnigrants' Rights Clinic, Stanford, California; and Steven A. Ellis, William Tran, and Brian K. Washington, Sidley Austin LLP, Los Angeles, California, for the petitioner-appellant.

Gregory G. Katsas, Assistant Attorney General, Civil Division; David J. Kline, Director, District Court Section; Gjon Juncaj (argued), Senior Litigation Counsel; and Nancy N. Safavi, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for the respondents-appellees.

OPINION
B. FLETCHER, Senior Circuit Judge:
Petitioner Alejandro Rodriguez ("Petitioner") seeks a writ of habeas corpus on behalf of himself and a class of aliens detained in the Central District of California for more than six months without a bond hearing while engaged in immigration proceedings. Petitioner requests injunctive and declaratory relief providing individual bond hearings to all members of the class. Petitioner appeals the district court denial without explanation of Petitioner's request to certify the proposed class. Respondents, seeking to fill the gap left by the district court's conclusory order, assert that the district court's denial was justified on any of the following grounds: 1) the proposed class is undefined; 2) the claim of Petitioner is moot; 3) the claims of the proposed class are unripe; 4) class relief is barred by 8 U.S.C. § 1252(f); 5) the court lacks jurisdiction over the claims of the proposed class in light of the holding in Rums/eld v. Padilla; and 6) the proposed class does not meet the requirements of Federal Rule of Civil Procedure 23. We have jurisdiction over this interlocutory appeal pursuant to 28 U.S.C. § 1292. We conclude that none of the grounds

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offered by Respondents justify denial of class certification and that the class meets the requirements of Rule 23; accordingly, we reverse.

I. Background

Petitioner is a citizen of Mexico who came to the United States at the age of one in 1979. He became a lawful permanent resident eight years later. Petitioner was arrested in April 2004, charged with being removable based on past drug and theft convictions, and detained thereafter by the Department of Homeland Security. Petitioner contested his removability before an immigration judge ("IJ"), who determined he was subject to mandatory removal based on either of his past offenses. The Board of Immigration Appeals ("BIA") reversed the IJ's finding that Petitioner was removable on the basis of his drug offense, but upheld the IJ's finding that his theft conviction was an aggravated felony requiring removal. Petitioner appealed the BIA's finding that his theft offense constituted an aggravated felony and we stayed his removal pending our decision. The appeal has been held in abeyance pending determination of a separate appeal to the United States Supreme Court. During his detention Petitioner received three custody reviews from Immigration and Customs Enforcement that determined to continue his detention, the latest occurring in September 2006. In conjunction with these reviews, Petitioner received no hearing or notice explaining ICE's decision beyond mention that his Ninth Circuit appeal was pending.1

On May 16, 2007, Petitioner filed the current Petition for Writ of Habeas Corpus against the secretaries of the Departments of Homeland Security and Justice, the field office director in the Central District of California for Immigration

1Petitioner also was at one point deemed eligible for release on a bond of $15,000, which Petitioner could not pay. This bond order was later revoked after the BIA determined his appeal.

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and Customs Enforcement ("ICE"), and the head officials of various alien detention facilities in the district ("Respondents"). Petitioner seeks relief on behalf of himself and a class of aliens in the Central District of California "who 1) are or will be detained for longer than six months pursuant to one of the general immigration detention statutes pending completion of removal proceedings, including judicial review, and 2) have not been afforded a hearing to determine whether their prolonged detention is justified." (Pet. for Writ of Habeas Corpus ~ 39.) Petitioner asserts that the detention of the members of the proposed class is not authorized by statute, and, in the alternative, that if their detention is authorized it violates the Fifth Amendment's guarantee of due process. Petitioner's requested relief includes the certification of the proposed class, appointment of Petitioner's counsel as class counsel, and injunctive and declaratory relief providing all members of the class "constitutionally-adequate individual hearings before an immigration judge ... , at which Respondents will bear the burden to prove by clear and convincing evidence that Petitioner and each class member is a sufficient danger or risk of flight to justify his detention in light of how long he has been detained already and the likelihood of his case being finally resolved in favor of the government in the reasonably foreseeable future." (Pet. for Writ of Habeas Corpus 21.)

On June 25, 2007 Petitioner filed a Motion for Class Certification, which was opposed by Respondents on the same grounds now raised in this appeal. ICE released Petitioner from detention under an order of supervision approximately a month later pursuant to 8 C.F.R. § 241.4. Respondents subsequently filed a motion to dismiss Petitioner's action on mootness grounds in light of his release.

The district court denied Petitioner's Motion for Class Certification and the Respondents' Motion to Dismiss on March 19, 2008 in a two-sentence order. Petitioner filed the current appeal of the denial of class certification on July 17, 2008.

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II. Standard of Review

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We review a district court's decision to deny class certification for abuse of discretion. Zinser v. AccuflX Research Inst., 253 F.3d 1180, 1186 (9th Cir. 2001), amended, 273 F.3d 1266 (9th Cir. 2001). However, a district court's decision as to class certification is not afforded the "'traditional deference' " when it is not "supported by sufficient findings." Molski v. Gleich, 318 F.3d 937, 946 (9th Cir. 2003) (quoting Local Joint Executive Bd of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1161 (9th Cir. 2001». Here, where the district court made no findings whatsoever in support of its denial of class certification, but the record before us is sufficiently developed, "we may evaluate for ourselves" whether the class should be certified. Las Vegas Sands, 244 F.3d at 1161.2 Respondents contend that we should afford the full deference normally accorded the district court's order on the basis that its findings and reasoning can be derived implicitly from Respondents' opposition to class certification filed below. Respondents, however, offered multiple reasons for denying class certification. We would be engaging in mere guesswork were we to assume the district court relied on any particular reason or reasons. We, therefore, follow Las Vegas Sands in reviewing the district court's determination.

III. Definition of Proposed Class

[1] Petitioner seeks to certify a class of detainees who are held pursuant to what Petitioner labels the "general immigration statutes." Respondents assert that Petitioner's use of the phrase "general immigration statutes" creates an undefined class. While not a model of clarity, Petitioner's habeas corpus petition and request for class certification together indicate

2We do not opine on the appropriate course for the reviewing court when a district court makes some, but insufficient, findings, justifying its class certification determination, as that is not the posture we face here.

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that "general immigration statutes" refers narrowly to 8 U.S.C. § 1226, 8 U.s.C. § 1225(b), and 8 U.S.C. § 1231(a). Whether 8 U.S.C. § 1182(d)(5)(A) is also included in the definition is ambiguous, as it is only referenced in Petitioner's subsequent filings. This is of no practical importance, however, as Section 1182(d)(5)(A) merely provides for discretionary parole of detainees, which, upon revocation, returns the detainees to the form of legal detention they were in prior to parole. 8 U.S.c. § 1182(d)(5); see Clarkv. Martinez, 543 U.S. 371, 385-86 (2005) (discussing effect of Section 1182(d)(5) on detention status). Hence, we conclude Petitioner's proposed class is adequately defined for certification.

IV. Immigration Detention Statutes

The three immigration detention statutes implicated by the proposed class govern detention of aliens at different stages of the admission and removal process. 8 U.S.c. § 1225(b) provides for discretionary detention of aliens pending a determination of admissibility.3 8 U.S.C. § 1226 provides for both discretionary detention generally and mandatory detention for certain narrow categories of aliens pending a determination of their removability.4 8 U.S.C. § 1231(a) provides for manda-

38 U.S.C. § 1225(b)(I)(B)(ii) provides:
If the [asylum] officer determines at the time of the interview [upon arrival in the United States] that an alien has a credible fear of persecution ... , the alien shall be detained for further consideration of the application for asylum.
8 U.S.C. § 1225(b)(2)(A) provides:
[I]n the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title. 48 U.S.C. § 1226(a) provides:
On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.

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tory detention of aliens ordered removed during the 90 day removal period and discretionary detention after the end of the removal period.5 Petitioner's request for relief raises the

8 U.S.C. § 1226(c) provides:
The Attorney General shall take into custody any alien who ... is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title, ... is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title, ... is deportable under section I227(a)(2)(A)(i) ofthis title on the basis of an offense for which the alien has been sentence [sic] to a term of imprisonment of at least 1 year, or ... is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title, when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.
58 U.S.c. § 123 1(a)(2) provides:
During the removal period, the Attorney General shall detain the alien. Under no circumstance during the removal period shall the Attorney General release an alien who has been found inadmissible under section 1182(a)(2) or 1182(a)(3)(B) of this title or deportable under section 1227(a)(2) or 1227(a)(4)(B) of this title.
8 U.S.C. § 123 I(a)(6) provides:
An alien ordered removed who is inadmissible under section 1182 of this title, removable under section 1227(a)(l)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3).
8 U.S.C. § 1231(a)(l)(C) provides:
The removal period shall be extended beyond a period of 90 days and the alien may remain in detention during such extended period if the alien fails or refuses to make timely application in good faith for travel or other documents necessary to the alien's departure or conspires or acts to prevent the alien's removal subject to an order of removal.

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question of whether prolonged detention without a bond hearing is authorized under any of these statutes and, in the alternative, even if it is authorized, whether such detention is constitutional. These are not new questions for this court. In a series of decisions, the Supreme Court and this court have grappled in piece-meal fashion with whether the various immigration detention statutes may authorize indefinite or prolonged detention of detainees and, if so, may do so without providing a bond hearing. Each decision has undertaken interpretation of the immigration detention statutes against the backdrop of the serious constitutional issues raised by indefinite or prolonged detention. We review these decisions to provide the necessary context to aid in determining the appropriateness of class relief.

A. Discretionary Detention

In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court first took up the question of whether an immigration discretionary detention statute authorized indefinite or prolonged detention. The alien there was detained pursuant to Section 1231 (a)(6), authorizing discretionary detention of aliens after the removal period. The Court held that a "[a] statute permitting indefinite detention of an alien would raise a serious constitutional problem." Id. at 690. The Court found Section 1231(a)(6) ambiguous as to whether it authorized indefinite detention and, therefore, "interpreting the statute to avoid a serious constitutional threat, . . . conclude[d] that, once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute." Id. at 699. The Court determined that for six months following the beginning of the removal period an alien's detention was presumptively authorized. Id. at 701. However, after that period, "once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing" in order to continue to detain the alien. Id. Though Zadvydas dealt only with aliens detained pursuant

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to Section 1231(a)(6) who were removable under Section 1227(a)(1)(C), 1227(a)(2) or 1227(a)(4), the Supreme Court subsequently extended its holding to the other two categories of aliens governed by the statute: aliens inadmissible under Section 1182 and aliens determined by the Secretary of Homeland Security to be a risk to the community or a flight risk. See Clark, 543 U.S. at 378; see also Xi v. INS, 298 F.3d 832, 834 (9th Cir. 2002). We have further extended the Zadvydas framework to discretionary detention pursuant to Section 1225(b) and 1226(a), finding that indefinite detention under these statutes poses the same constitutional concerns present in Zadvydas. See Prieto-Romero v. Clark, 534 F.3d 1053, 1062-63 (9th Cir. 2008); Nadarajah v. Gonzales, 443 F.3d 1069, 1078-80 (9th Cir. 2006).

Having applied the Zadvydas framework to determine when prolonged discretionary detention is authorized, we have also begun to determine what sort of bond hearing, if any, is needed to justify prolonged discretionary detention for individual petitioners. As we stated in Prieto-Romero, even when detention is authorized by statute, "due process requires 'adequate procedural protections' to ensure that the government's asserted justification for physical confinement 'outweighs the individual's constitutionally protected interest in avoiding physical restraint.' " 534 F.3d at 1065 (quoting Zadvydas, 533 U.S. at 690-91). In Casas-Castrillon v. Dep't of Homeland Sec., 535 F.3d 942, 949-52 (9th Cir. 2008), we determined that Section 1226(a) authorized detention of the petitioner at issue and proceeded to discuss what bond hearing, if any, he was entitled to. We concluded that Section 1226(a) provided authority for the Attorney General to release an alien detained under the section on bond following a bond hearing. Id "Because the prolonged detention of an alien without an individualized determination of his dangerousness or flight risk would be 'constitutionally doubtful,' " we further concluded "that § 1226(a) must be construed as requiring the Attorney General to provide the alien with such a hearing." Id (emphasis omitted). Hence, we held that an alien

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detained under Section 1226(a) "is entitled to release on bond unless the government establishes that he is a flight risk or will be a danger to the community." Id. at 951 (internal quotation marks omitted); see also Flores-Torres v. Mukasey, 548 F.3d 708, 709 n.2 (9th Cir. 2008); Prieto-Romero, 534 F.3d at 1065-66 (finding three bond hearings for Section 1226(a) detainee satisfied due process); Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005) (finding alien detained for nearly three years could not be mandatorily detained under Section 1226(c) and ordering bond hearing, impliedly finding alien was detained under Section 1226(a)).

In Diouf v. Mukasey, 542 F.3d 1222 (9th Cir. 2008), by contrast, we refused to reach the issue of whether a bond hearing was required under Section 1231(a)(6). We held the detention of the petitioner at issue beyond the six month period was authorized under Section 1231(a)(6). Id. at 1233. We then turned to the issue of what bond hearing, if any, the petitioner was entitled to for determining the necessity of his detention. We concluded that while release on bond was clearly authorized by Section 1231 (a)(6) and its implementing regulations, it was unclear whether a bond hearing was required under the statute for petitioner and what burden if any should be placed on the government at such a hearing. Id at 1234-35. Because the district court had not had an opportunity to reach this question, we declined to reach it in the first instance and remanded. Id. at 1235. However, in doing so we noted that the issue was "somewhat similar" to that in CasasCastrillon, strongly implying that the district court's determination should at least be informed by its reasoning. Diouj, 542 F.3d at 1234-35.

B. Mandatory Detention

We have also dealt with indefinite or prolonged detention under immigration mandatory detention provisions, including Sections 1226(c), 1231(a)(2), and 1231(a)(1)(c). Section 1226(c) provides for mandatory detention of criminal aliens

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for expedited removal. The Supreme Court has held that detention pursuant to Section 1226(c) does not raise any due process concerns. Demore v. Kim, 538 U.S. 510, 531 (2003). However, in upholding Section 1226(c), the Court interpreted it to authorize mandatory detention only for the "limited period of [the alien's] removal proceedings," which the Court estimated "lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal" his removal order to the BIA. Id at 530-31. We have subsequently clarified that, in order to avoid the serious constitutional questions raised by indefinite mandatory detention, detention of an alien beyond an expedited period ceases to be mandatory under Section 1226(c) and instead becomes discretionary under Section 1226(a). See Casas-Castrillon, 535 F.3d at 951; Tijani, 430 F.3d at 1242.

We have additionally held that detention pursuant to Section 1231(a)(2) poses no due process issues, regardless of whether removal of the detained alien is foreseeable, because the statute authorizes detention for only the ninety-day removal period and therefore does not create any danger of unconstitutionally indefinite detention. Khotesouvan v. Morones, 386 F.3d 1298, 1299-1301 (9th Cir. 2004). We have taken the same view when an alien is detained pursuant to the related provision of 8 U.S.C. § 1231(a)(I)(C), which allows the removal period to be extended and detention to continue beyond ninety days if an alien conspires or acts to prevent his own removal. Pelich v. INS, 329 F.3d 1057, 1058-61 (9th Cir. 2003). The court, while "expressly declin[ing] to endorse or reject any inferred Zadvydas-inspired limitation to § 1231(a)(I)(C)" found that, in any case, "an alien cannot assert a viable constitutional claim when his indefinite detention is due to his failure to cooperate with the INS's efforts to remove him." Id at 1060-61; see also Lema v. INS, 341 F.3d 853, 857 (9th Cir. 2003) ("We conclude that 8 U.S.C. § 1231(a)(I)(C) ... authorizes the INS's continued detention of a removable alien so long as the alien fails to cooperate

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fully and honestly with officials to obtain travel documents.") Key to this determination was the court's view that "[t]he risk of indefinite detention that motivated the Supreme Court's statutory interpretation in Zadvydas does not exist when an alien is the cause of his own detention." Pelich, 329 F.3d at 1060.

V. Alleged Bars to Class Relief

Petitioner seeks to end our piece-meal rulings in habeas actions on the necessity of bond hearings to justify prolonged detention in the immigration context and have the courts address the issue on a class-wide basis across the various general immigration detention statutes. While "ordinarily disfavored," the Ninth Circuit has recognized that class actions may be brought pursuant to habeas corpus. Cox v. McCarthy, 829 F.2d 800, 804 (9th Cir. 1987); see also Mead v. Parker, 464 F.2d 1108, 1112-13 (9th Cir. 1972) (finding habeas relief to be appropriate in cases "where the relief sought can be of immediate benefit to a large and amorphous group"). Respondents assert, nonetheless, that various constitutional, statutory, and procedural bars to class relief exist in this case.

A. Mootness

[2) Respondents initially challenge class certification on the ground that Petitioner's individual claim has been rendered moot by his release from detention. In fact, mootness of the Petitioner's claim is not a basis for denial of class certification, but rather is a basis for dismissal of Petitioner's action. Because the district court did not dismiss Petitioner's action, but only denied class certification, we see no reason to conclude it based its denial on a finding of mootness. If it had made such a finding, it would have been in error. Petitioner was released pursuant to 8 C.F.R. § 241.4, which provides that "[t]he Executive Associate Commissioner shall have authority, in the exercise of discretion, to revoke release and return to Service custody an alien previously approved for

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release under the procedures in this section." 8 C.F.R. § 241.4 (1)(2). While the regulation provides the detainee some opportunity to respond to the reasons for revocation, it provides no other procedural and no meaningful substantive limit on this exercise of discretion as it allows revocation "when, in the opinion of the revoking official ... [t]he purposes of release have been served ... [or] [t]he conduct of the alien, or any other circumstance, indicates that release would no longer be appropriate." Id. § 241.4(1)(2) (i), (iv) (emphasis added). This places Petitioner in a position analogous to the petitioner challenging his prolonged detention in Clark v. Martinez, who was released from detention pursuant to a discretionary parole provision while his suit was ongoing. The Supreme Court found his case was not mooted:

If Benitez is correct, as his suit contends, that the Government lacks the authority to continue to detain him, he would have to be released, and could not be taken back into custody unless he violated the conditions of release . . . or his detention became necessary to effectuate his removal . . . . His current release, however, is not only limited to one year, but subject to the Secretary's discretionary authority to terminate. ... Thus, Benitez continue[s] to have a personal stake in the outcome of his petition.

Clark, 543 U.S. at 376 n.3 (citations and internal quotation marks omitted) (emphasis added). Petitioner asserts that the government cannot detain him unless it can demonstrate by clear and convincing evidence at a hearing before an immigration judge that he is a sufficient danger or flight risk to justify his detention. If Petitioner is successful in his petition he would be entitled to such a hearing where the government would need to meet its burden or offer him a nondiscretionary release until such time as it can make the requisite showing or has an independent statutory basis to detain him. This would place Petitioner in a far different situation from his current one, released pursuant to the government's

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independent determination but subject to revocation on the government's discretion without hearing before a neutral decision-maker and without burden of justification on the government. Hence, like the petitioner in Clark, Petitioner here retains a personal stake in the determination of his claim such that it is not moot.

[3] We further note that Petitioner's current release is subject to a number of restrictions, including the requirements that he remain within 50 feet of his home from 7:00 p.m. to 7:00 a.m. every night and wear an ankle monitoring device at all times. Petitioner proposes that he receive a bond hearing to determine not only whether he should be released, but also under what conditions such release would take place. The strict limitations on Petitioner's freedom, therefore, provide an additional reason why his case presents a live controversy. Cj Cara/as v. LaVallee, 391 U.S. 234, 238 (1968) (holding that when habeas petitioner was released from custody, but his felony conviction prevented him from engaging in certain businesses, voting, and serving on juries, underlying habeas case still presented live controversy).

B. Ripeness

[4] Respondents additionally argue that class certification must be denied because the claims of the proposed class are not all yet ripe.6 "[A] claim is not ripe for adjudication if it rests upon contingent future events that may not occur as

6Respondents assert that Petitioner waived any challenge to their ripeness argument by not raising it in his opening brief. This argument is groundless. We have previously held that the failure of a party in its opening brief to challenge an alternate ground for a district court's ruling given by the district court waives that challenge. See United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005); MacKay v. Pfeil, 827 F.2d 540, 542 n.2 (9th Cir. 1987). Here, the district court did not cite ripeness or any other rationale for its denial of certification. Petitioner does not waive a challenge to any ground for denial of certification in its opening brief on appeal that was not relied on in the district court's order.

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anticipated, or indeed may not occur at all." Bova v. City of Medford, 564 F.3d 1093, 1096 (9th Cir. 2009) (internal quotation marks omitted). Respondents first argue that the claims of proposed class members detained pursuant to Section 1226(a) are unripe because there is no indication yet that the government is refusing to comply with Casas-Castrillon's ruling. This argument rests on a misunderstanding of what constitutes membership in the proposed class. Members of the proposed class are by definition aliens who have been detained without a bond hearing. If an alien who would otherwise be a member of the class receives a bond hearing pursuant to Casas-Castrillon or any other ruling they would cease to be a member of the class. Hence, the government's full compliance with Casas-Castrillon could reduce the size of the class, but it could not render the claims of class members unripe. Respondents additionally argue that the proposed class suffers from ripeness issues because it references future class members. The inclusion of future class members in a class is not itself unusual or objectionable. See, e.g., Probe v. State Teachers' Ret. Sys., 780 F.2d 776, 780 (9th Cir. 1986); LaDuke v. Nelson, 762 F.2d 1318, 1321-26 (9th Cir. 1985). When the future persons referenced become members of the class, their claims will necessarily be ripe. Hence, we conclude that the requirement of ripeness raises no bar to certification of the class.

C. 8 u.s.c. § 1252(f)

Respondents assert that 8 U.S.C. § 1252(1)(1), Section 306(a) of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), bars class certification in this case. Section 1252(1)(1) provides:

Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this sub-

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chapter, as amended by [IIRIRA], other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.

8 U.S.C. § 1252(f)(1). Part IV includes 8 U.S.C. §§ 12211231. See Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139, 1150 (9th Cir. 2000) (en banc). Respondents argue that Section 1252(f) bars the proposed class from receiving any injunctive relief, thereby requiring denial of class certification.

[5] Respondents are doubly mistaken. Section 1252(f) cannot bar certification of the class unless it bars the proposed class from receiving any class relief. Respondents do not argue, and it is not the case, that Section 1252(f) bars Petitioner from receiving declaratory relief on behalf of the class. The Supreme Court has recognized as much: "By its plain terms, and even by its title, [Section 1252(f)] is nothing more or less than a limit on injunctive relief. It prohibits federal courts from granting classwide injunctive relief against the operation of §§ 1221-1231, but specifies that this ban does not extend to individual cases." Reno v. Am.-Arab AntiDiscrimination Comm., 525 U.S. 471, 481-482 (9th Cir. 1999). Hence, for this reason alone, Section 1252(f)(1) did not provide the district court with a basis to deny class certification.

[6] In addition, we conclude that Section 1252(f) does not bar injunctive relief for the proposed class. Section 1252(f) prohibits only injunction of "the operation of' the detention statutes, not injunction of a violation of the statutes. This is a distinction we have made before in a decision vacated on unrelated grounds. See Ali v. Ashcroft, 346 F.3d 873, 886 (9th Cir. 2003), vacated on unrelated grounds sub nom. Ali v. Gonzales, 421 F.3d 795 (9th Cir. 2005). We held there:

"[Section] 1252(f)(1) limits the district court's authority to enjoin the INS from carrying out legiti-

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11403

mate removal orders. Where, however, a petitioner seeks to enjoin conduct that allegedly is not even authorized by the statute, the court is not enjoining the operation of part IV of subchapter II, and § 1252(f)(1) therefore is not implicated."

Id. Analogously, Petitioner here does not seek to enjoin the operation of the immigration detention statutes, but to enjoin conduct it asserts is not authorized by the statutes. Petitioner argues only that the immigration detention statutes, to the extent they cannot be interpreted as requiring provision of a bond hearing, must be enjoined as unconstitutional. However, as this latter argument for relief may never be reached, it cannot be a basis for denial of class certification.

[7] Respondents assert that we should not adopt the reasoning of the vacated opinion in Ali, but instead follow our decision in Catholic Soc. Servs., Inc. v. INS, 182 F.3d 1053 (9th Cir. 1999), aff'd in part and rev'd in part en banc, 232 F.3d 1139 (9th Cir. 2000). There we found that injunctive relief for a class asserting that the INS misinterpreted legalization provisions of the Immigration Control and Reform Act was barred by Section 1252(f). We stated:

[R]egardless of the fact that the injunction provides relief for a harm ostensibly created by the INS' misinterpretation of the legalization provisions of part V, insofar as it would interfere with the operation of part IV, the injunction here is contrary to the plain language of § 1252(f) and the district court lacked the jurisdiction to enter it.

Id. at 1062. We subsequently reversed this conclusion on en banc review, however, on the basis that the ordered injunction was issued under part V of the subchapter, rather than part IV and, therefore, not within the terms of Section 1252(f). Catholic Soc. Servs., 232 F.3d at 1150. Were we nonetheless to accept the panel's reasoning as persuasive, it would not con-

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trol here. The requested injunction at issue does not seek to enjoin the operation of Part IV provisions to relieve hann caused by misinterpretation of other statutory provisions, but to enjoin conduct alleged not to be authorized by the proper operation of Part IV provisions. The sound reasoning of Ali persuades that this is not barred by the plain tenns of Section 1252(f).7

D. Rumsfeld v. Padilla

[8J Finally, Respondents claim that the Supreme Court's holding in Rumsfeld v. Padilla, 542 U.S. 426 (2004), renders class action relief inappropriate in this case. In Padilla, the Supreme Court stated that "longstanding practice confinns that in habeas challenges to present physical confinement-'core challenges'-the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official." Id at 435. Respondents argue that this statement mandates that the proper respondents for members of the proposed class are the various wardens overseeing their individual custody. Respondents assert that this renders class relief impossible because, "at a jurisdictional minimum," all proposed class members must be under the immediate supervision of the same custodian. (Resp'ts Answering Br. 16.) Respondents fail to recognize that Padilla specifically reserved the question of whether the proper respondent in habeas challenges brought by "an alien detained pending deportation" would be the immediate custodian of the alien. Padilla, 542 U.S. at 436 n.8. We need not reach it because, even were the Supreme Court's statement in Padilla applicable here, Respondents' argument is baseless. Respondents cite

7Petitioner additionally argues that Section l252(t) properly interpreted does not apply to claims for habeas relief at all. We do not reach this argument at this time, as it is sufficient to find that the district court may in some scenario grant the proposed class some of the relief sought to determine that the class may be certified.

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11405

no authority or rationale for the proposition that we do not have jurisdiction to provide class relief in a habeas corpus action that meets the requirements for certification merely because class members are in the immediate custody of different facilities. Such actions have been maintained previously against single and multiple respondents. See Schall v. Martin, 467 U.S. 253 (1984) (class of juveniles sought habeas corpus
relief from pretrial detention under state law); u.s. ex rei.
Sero v. Preiser, 506 F.2d 1115 (2d. Cir. 1974) (class of young adults sought habeas corpus relief from serving terms in state reformatories). Regardless of who the proper respondents for the class are, we conclude certification of the class will not pose any jurisdictional concerns.

VI. Rule 23

[9] In addition to ralSlng various bars to class relief, Respondents assert that the proposed class fails to comply with the requirements of Federal Rule of Civil Procedure 23, governing class certification. Rule 23(a) provides that a class may be certified only if:

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

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

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

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

Fed. R. Civ. P. 23(a). The party seeking certification must meet all of these requirements and Rule 23(b) further provides that for certification the class must fall into one of three cate-

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gories. Zinser, 253 F.3d at 1186 ("[T]he party seeking class certification . . . bears the burden of demonstrating that she has met each of the four requirements of Rule 23(a) and at least one of the requirements of Rule 23(b).") Petitioner seeks certification under the category provided for in Rule 23(b)(2), which requires that "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). Respondents challenge the proposed class's compliance with all aspects of Rule 23 except the numerosity requirement, which Respondents concede is met. We discuss the proposed class's compliance with the remaining requirements individually.

A. Commonality

The commonality requirement "serves chiefly two purposes: (1) ensuring that absentee members are fairly and adequately represented; and (2) ensuring practical and efficient case management." Walters v. Reno, 145 F.3d 1032, 1045 (9th Cir. 1998). We have construed this requirement "permissively." Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). It is not necessary that "[a]ll questions of fact and law ... be common to satisfy the rule." Id. We have found "[t]he existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class." Id.; . see, e.g., Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997) ("The commonality requirement is met if plaintiffs' grievances share a common question of law or of fact."); Baby Neal for & by Kanter v. Casey, 43 F.3d 48, 56 (3d. Cir. 1994) ("The commonality requirement will be satisfied if the named plaintiffs share at least one question of fact or law with the grievances of the prospective class."). Nor does "common" as used in Rule 23(a){l) mean "complete congruence." In re First Alliance Mortg. Co., 471 F.3d 977, 990 (9th Cir. 2006). We find the claims of the class share sufficiently com-

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11407

mon questions of law to meet the requirement of Rule 23(a)(1).

[10] Respondents challenge the commonality of class members' claims on the ground that class members suffer detention for different reasons and under the authority of different statutes. Respondents assert that, as a result, the question of whether individual class members' detention may be continued without a bond hearing turns on divergent questions of statutory interpretation and consideration of different factual circumstances. Respondents are undoubtedly correct that members of the proposed class do not share every fact in common or completely identical legal issues. This is not required by Rule 23(a)(1). Instead, the commonality requirements asks us to look only for some shared legal issue or a common core of facts. This the proposed members of the class certainly have. In each case in which we have interpreted the scope of various statutes providing for both discretionary and mandatory detention in the immigration context, our determinations have been guided, if not controlled, by the question of whether indefinite or prolonged detention generating serious constitutional concerns is present. A form of that question is posed here: mayan individual be detained for over six months without a bond hearing under a statute that does not explicitly authorize detention for longer than that time without generating serious constitutional concerns? This question will be posed by the detention of every member of the class and their entitlement to a bond hearing will largely be determined by its answer. See Casas-Castrillon, 535 F.3d at 951 ("Because the prolonged detention of an alien without an individualized determination of his dangerousness or flight risk would be 'constitutionally doubtful,' we hold that § 1226(a) must be construed as requiring the Attorney General to provide the alien with such a hearing." (emphasis omitted)); Tijani, 430 F.3d at 1242 (interpreting statutory framework to provide bond hearing because "it is constitutionally doubtful that Congress may authorize imprisonment of this duration for lawfully admitted resident aliens who are

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subject to removal."). The nature of the particular statute authorizing the detention of individual class members will play some role in determining whether class members are entitled to relief, as well. Nonetheless, the constitutional issue at the heart of each class member's claim for relief is common.

We also note that a finding of commonality here serves the purposes of the requirement. Answering comprehensively in a class setting the constitutional question that is at the center of the proposed class's claims will facilitate development of a uniform framework for analyzing detainee claims to a bond hearing. This would render management of these claims more efficient for the courts. It would also benefit many of the putative class members by obviating the severe practical concerns that would likely attend them were they forced to proceed alone. In many of the cases where we have adjudicated these immigration detention claims, the petitioner had been detained well beyond six months, the point at which counsel contends that the putative class members should be entitled to a bond hearing. See, e.g., Tijani, 430 F.3d at 1242 (9th Cir. 2005) (ordering a bond hearing after an alien was detained for nearly three years). Without certification, therefore, many of the putative class members likely would not be able to adjudicate their claimed need of a bond hearing after six months of detention-that claim would become moot before the district court could come to a decision. Thus, for many of the putative class members, class treatment in this case is likely necessary to provide the remedy sought.

To the extent there may be any concern that the differing statutes authorizing detention of the various class members will render class adjudication of class members' claims impractical or undermine effective representation of the class, it may counsel the formation of subclasses. See Fed. R. Civ. P. 23(c)(5); Marisol A., 126 F.3d at 378-79 (finding subclasses appropriate where groups of class members each had "separate and discrete legal claims pursuant to particular fed-

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11409

eral and state constitutional, statutory, and regulatory obligations of the defendants"). Because the possibility of subclasses was not raised below, we leave it to the district court to reach it in the flrst instance. The parties may submit proposals for formation of subclasses on remand and the district court shall exercise its discretion to determine whether
adoption of any proposal would be appropriate. See u.s.
Parole Comm 'n v. Geraghty, 445 U.S. 388, 407-08 (1980)
(holding that court of appeals may order district court to consider any proposals for subclasses made on remand). The district court, however, should not lose sight of the overarching issue: The circumstances, if any, that would warrant prolonged detention without hearing.

B. Typicality

[11] The typicality requirement looks to whether "the claims of the class representatives [are] typical of those of the class, and [is] 'satisfled when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability.' " Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001) (quoting Marisol A., 126 F.3d at 376). Like the commonality requirement, the typicality requirement is "permissive" and requires only that the representative's claims are "reasonably co-extensive with those of absent class members; they need not be substantially identical." Hanlon, 150 F.3d at 1020. We conclude that Petitioner's claim for a bond hearing is reasonably co-extensive with the claims of the class. Though Petitioner and some of the other members of the proposed class are detained under different statutes and are at different points in the removal process and hence do not raise identical claims, they all, as already discussed, raise similar constitutionally-based arguments and are alleged victims of the same practice of prolonged detention while in immigration proceedings. Cf Armstrong, 275 F.3d at 869 (flnding typicality where class representatives suffered with rest of class "a refusal or failure to afford them accommodations as required

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by statute, and [were] objects of discriminatory treatment on account of their disabilities" in parole and parole revocation proceedings).

Respondents argue that Petitioner's claims are not typical of the class because of his supervised release and because of his aggravated felon status, currently under appeal. Both are immaterial. The single relevance Petitioner's supervised release has to his claim is to whether it renders Petitioner's claim moot. Defenses unique to a class representative counsel against class certification only where they "threaten to become the focus of the litigation." Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (internal quotation marks and citation omitted). We have determined that Petitioner's supervised release does not moot his claim and, therefore, no mootness defense particular to him will interfere with the ongoing class litigation.

[12] Petitioner's aggravated felon status is similarly of no significance to the typicality analysis. The claims of Petitioner and the class on the whole are that they are entitled to a bond hearing in which dangerousness and risk of flight are evaluated. While Petitioner's criminal history is currently central to the question of whether Petitioner will ultimately be removed and will almost certainly be relevant to any bond hearing determination, the determination of whether Petitioner is entitled to a bond hearing will rest largely on interpretation of the statute authorizing his detention. The particular characteristics of the Petitioner or any individual detainee will not impact the resolution of this general statutory question and, therefore, cannot render Petitioner's claim atypical.

C. Adequacy

[13] "Whether the class representatives satisfy the adequacy requirement depends on 'the qualifications of counsel for the representatives, an absence of antagonism, a sharing of interests between representatives and absentees, and the

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11411

unlikelihood that the suit is collusive.' " Walters, 145 F.3d at 1046 (quoting Crawford v. Honig, 37 F.3d 485,487 (9th Cir. 1994)). Petitioner alleged the qualifications of his counsel and the lack of conflict or collusion in the court below. Respondents do not question these allegations. Instead, they challenge Petitioner's adequacy only by re-asserting their commonality and typicality arguments. See Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.B (1982) (noting that commonality and typicality concerns also relate to a representative's adequacy). As we do not find that these arguments have merit, Respondents have provided no reason to conclude that class certification is properly denied for the reason that Petitioner is an inadequate class representative.

D. Rule 23(b)(2)

Respondents challenge certification under Rule 23(b)(2) on grounds parallel to their challenge under Rule 23(a). Respondents assert that as class members are potentially detained pursuant to different statutes, Respondents have not refused to act or acted on grounds generally applicable to the class. In particular, Respondents note that some class members may not ultimately be entitled to a bond hearing because they are properly subject to mandatory detention and that the regulations currently implementing the various discretionary detentions statutes provide for a different burden of proof at bond hearings than that found to be required by us in CasasCastrillon for aliens detained pursuant to Section 1226(a).

[14] Respondents' contentions miss the point of Rule 23(b)(2). "Class certification under Rule 23(b)(2)" requires that "the primary relief sought is declaratory or injunctive." Zinser, 253 F.3d at 1195. The rule does not require us to examine the viability or bases of class members' claims for declaratory and injunctive relief, but only to look at whether class members seek uniform relief from a practice applicable to all of them. As we have previously stated, "it is sufficient" to meet the requirements of Rule 23(b)(2) that "class mem-

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bers complain of a pattern or practice that is generally applicable to the class as a whole." Walters, 145 F.3d at 1047; see Alliance to End Repression v. Rochford, 565 F.2d 975, 979 (7th Cir. 1977) (finding Rule 23(b)(2) met despite "individual qualities of [the] suit" because of "pattern or practice characteristic of defendants' conduct that is generally applicable to the class" (internal quotation marks omitted)). The fact that some class members may have suffered no injury or different injuries from the challenged practice does not prevent the class from meeting the requirements of Rule 23(b)(2). Walters, 145 F.3d at 1047; cf Gibson v. Local 40, Supercargoes and Checkers, 543 F.2d 1259, 1264 (9th Cir. 1976) ("A class action may be maintained under [Rule] 23(b)(2), alleging a general course of racial discrimination by an employer or union, though the discrimination may have ... affect[ed] different members of the class in different ways ....") Furthermore, unlike actions brought under one of the other 23(b) prongs, "questions of manageability and judicial economy are
... irrelevant to 23(b)(2) class actions." Forbush v. J.c. Pen-
ney Co., Inc., 994 F.2d 1101, 1105 (5th Cir. 1993); see Elliott v. Weinberger, 564 F.2d 1219, 1229 (9th Cir.1977) ( "By its terms, Rule 23 makes manageability an issue important only in determining the propriety of certifying an action as a (b)(3), not a (b)(2), class action."), aff'd in pertinent part and rev'd in part sub nom. Califano v. Yamasaki, 442 U.S. 682 (1979). The proposed members of the class each challenge Respondents' practice of prolonged detention of detainees without providing a bond hearing and seek as relief a bond hearing with the burden placed on the government. The particular statutes controlling class members' detention may impact the viability of their individual claims for relief, but do not alter the fact that relief from a single practice is requested by all class members. Similarly, although the current regulations control what sort of process individual class members receive at this time, all class members seek the exact same relief as a matter of statutory or, in the alternative, constitutional right. Hence, we conclude that the proposed class meets the requirements

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11413

of Rule 23(b)(2). Cj Walters, 145 F.3d at 1047 (certifying under Rule 23(b)(2 ) class of aliens seeking declaratory and injunctive relief on ground that they received constitutionally deficient notice of deportation procedures following charges of document fraud); Marisol A., 126 F.3d at 378 (certifying under Rule 23(b)(2) class of children seeking declaratory and injunctive relief from systemic failures in child welfare system despite differing harms experienced by class members).

VII. Conclusion

Having found that none of the bars to class relief raised by Respondents prevent certification of the proposed class and that the class meets the requirements of Rule 23, we reverse the district court's denial of class certification and we remand for further proceedings. We leave to the district court's discretion the question of whether formation of subclasses would be appropriate.

REVERSED AND REMANDED.

 
 Case 2:07-cv-03239-TJH-RNB Document 78 Filed 04/19/10 Page 1 of 6 Page ID #:500

1 PETER J. ELIASBERG (SBN 189110) Email: peliasberg@aclu-sc.org
2 AHILAN T. ARULANANTHAM (SBN 237841) Email: aarulanantham@aclu-sc.org
3 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eighth Street
4 Los Angeles, CA 90017 Tel: (213) 977-9500
5 Fax: (213) 977-5297

6 Attorneys for Petitioner (Additional counsel listed on following page)
7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

WESTERN DIVISION

11

ALEJANDRO RODRIGUEZ, et al., )

12

)

Petitioners,

)

13

)

)

14

v.

)

)

15 TREY LUND, et al.,

)

)

16

Respondents.

)

______________________________ )

17

No. CV 07-3239-TJH (RNBx) [PROPOSED] STIPULATED PROTECTIVE ORDER CONCERNING ROSTER OF DETAINEES Honorable Terry J. Hatter

18

19

20

21

22

23

24

25 26 /// 27 /// 28 ///

Case 2:07-cv-03239-TJH-RNB Document 78 Filed 04/19/10 Page 2 of 6 Page ID #:501
1 Additional counsel: 2 JUDY RABINOVITZ
AMERICAN CIVIL LIBERTIES FOUNDATION 3 IMMIGRANTS' RIGHTS PROJECT
125 Broad Street, 18th Floor 4 New York, NY 10004
Telephone: (212) 549-2618 5 Facsimile: (212) 549-2654 6 CECILLIA D. WANG (SBN 187782)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION 7 IMMIGRANTS' RIGHTS PROJECT
39 Drumm Street 8 San Francisco, CA 94111
Telephone: (415) 343-0775 9 Facsimile: (415) 395-0950 10 JAYASHRI SRIKANTIAH (SBN 189566)
STANFORD LAW SCHOOL 11 IMMIGRANTS’ RIGHTS CLINIC
Crown Quadrangle 12 559 Nathan Abbott Way
Stanford, CA 94305-8610 13 Telephone: (650) 724-2442
Facsimile: (650) 723-4426 14
STEVEN A. ELLIS (SBN 171742) 15 WILLIAM TRAN (SBN 245104)
BRIAN K. WASHINGTON (SBN 248960) 16 SIDLEY AUSTIN LLP
555 West Fifth Street, Suite 4000 17 Los Angeles, California 90013-1010
Telephone: (213) 896-6000 18 Facsimile: (213) 896-6600 19 20 21 22 23 24 25 26 /// 27 /// 28 ///

Case 2:07-cv-03239-TJH-RNB Document 78 Filed 04/19/10 Page 3 of 6 Page ID #:502

1

IT IS HEREBY ORDERED that Respondents are authorized and ordered to

2 produce to Petitioners’ counsel, subject to the instant protective order, a roster of

3 the names, alien numbers, locations, and attorney contact information, if any, for

4 all immigration detainees detained for six months or longer in the Central District

5 of California. This information will be obtained by searching government

6 computer systems. The production shall occur within seven (7) court days of entry

7 of this order and an order certifying the class.1 This information may be released

8 to Petitioners’ counsel without Respondents obtaining prior written consent of

9 those individuals whose names and other identifying information may be present in

10 that production. Such disclosure is subject to the following conditions:

11

1. The terms of this Stipulated Protective Order will govern

12 Respondents’ entire production of information regarding the names, alien numbers,

13 locations, and attorney contact information, if any, for all immigration detainees

14 detained for six months or longer in the Central District of California, as well as

15 the safeguarding of such information by all individuals referenced in paragraph 5.

16

17

2. Respondents’ production of the names, alien numbers, locations, and

18 attorney contact information, if any, for all immigration detainees detained for six

19 months or longer in the Central District of California is appropriately deemed

20 “Confidential” information, as defined infra at paragraph 3. Such “Confidential”

21 information is subject to the restrictions of this Protective Order and may be used

22 solely for purposes of this litigation.

23 24 1 Petitioner believes that the Court should order production of this information
regardless of whether or not it certifies the class, because Petitioner believes the 25 Court’s minute order of Monday, March 22, 2010 requires production of this
information regardless of whether or not the class is certified. Respondents, 26 however, believe that, consistent with Respondents’ position on this matter, the
Court expressed its intent at the March 22, 2010 status conference to certify the 27 class prior to requiring disclosure of the information at issue in this order. The
parties request that the Court clarify this issue (unless it is rendered moot by entry 28 of an order certifying the class prior to entering this protective order).

1

Case 2:07-cv-03239-TJH-RNB Document 78 Filed 04/19/10 Page 4 of 6 Page ID #:503

1

3. “Confidential” is defined as any information contained in the roster of

2 names and other information to be produced by Respondents, the use of which

3 would allow the identification of the person to whom the information relates.

4 “Confidential” information includes the names, alien numbers, or any other

5 identifying information which would allow the identification of the person to

6 whom the information relates.

7

4. Respondents will affix to the production of any “Confidential”

8 information the words “CONFIDENTIAL” “THIS DOCUMENT IS SUBJECT TO

9 A COURT ORDER IN THE RODRIGUEZ, ET AL. v. LUND, ET AL., No.

10 07-cv-3239 (C.D. Cal.) CASE. THIS DOCUMENT AND ITS CONTENTS

11 SHALL NOT BE USED, SHOWN OR DISTRIBUTED EXCEPT AS PROVIDED

12 IN THE PROTECTIVE ORDER.”

13

5. Information designated as “Confidential,” including the document

14 containing “Confidential” information, may be disclosed only to the following

15 persons and only to the extent necessary for the prosecution of this action:

16

a. current and future counsel for Petitioners and Respondents and any

17 support staff and other employees of such counsel assisting in this action with an

18 appropriate need to know;

19

b. the Court and its personnel, including court reporters; and

20

c. any other person mutually authorized by all counsel to examine such

21 information, subject to paragraph 7 infra.

22

6. All persons listed in Paragraph 5(a) to whom “Confidential”

23 information is disclosed are hereby prohibited from disclosing to, or otherwise

24 discussing with, any person other than those listed in 5(a)-(c), any information

25 designated as “Confidential,” except as provided in this Stipulated Protective

26 Order.

27

7. All persons listed in Paragraphs 5(c) to whom “Confidential”

28 information is disclosed shall first be required to read the terms of this Stipulated

2

Case 2:07-cv-03239-TJH-RNB Document 78 Filed 04/19/10 Page 5 of 6 Page ID #:504

1 Protective Order and sign a copy of the Acknowledgment of Protective Order

2 form, attached hereto as Exhibit A, agreeing to be bound thereby. The signed

3 Acknowledgment forms shall be maintained by counsel for Respondents.

4

8. Any filings by Petitioners with the Court which contain

5 “Confidential” information shall be made under seal, unless a release is obtained

6 from the individual to whom the “Confidential” information pertains authorizing

7 the disclosure of such information, or the “Confidential” information is

8 appropriately redacted to prevent identifying information from being disclosed.

9

9. No “Confidential” information shall be used by Petitioner at any

10 hearing, trial or appellate proceeding in this action, unless provision shall be made

11 for exclusion of the public, permission is obtained from the individual to whom the

12 “Confidential” information pertains authorizing the disclosure of such information,

13 the “Confidential” information is appropriately redacted to prevent identifying

14 information from being disclosed, or, by agreement of the parties, some other

15 reasonable provision to protect “Confidential” information has been made. Where

16 “Confidential” information is used by Petitioners at a hearing, trial or appellate

17 proceeding in this action, the appropriate portion of the Court transcript containing

18 such “Confidential” information shall be placed under seal. Such designation shall

19 be limited to those portions of the transcript the sealing of which is reasonably

20 necessary to preserve the “Confidential” information described therein.

21

22

10. Within ten (10) days of the Court’s having decided that some

23 “Confidential” information relates to people who are not class members, Counsel

24 for Petitioners shall destroy the information related to non-class members, and

25 certify in writing to Counsel for Respondents that such information has been

26 destroyed. In addition, if the Parties mutually agree that some “Confidential” 27 information relates to people who are not class members, Counsel for Petitioners 28 shall destroy information related to those people within ten (10) days of their

3

Case 2:07-cv-03239-TJH-RNB Document 78 Filed 04/19/10 Page 6 of 6 Page ID #:505

1 mutual decision, and Counsel for Petitioners’ shall certify in writing to Counsel for

2 Respondents that such information has been destroyed. Counsel for Petitioners

3 shall maintain all remaining “Confidential” information pursuant to the terms of

4 this Stipulated Protective Order, subject to further order by this Court. Counsel for

5 Petitioners shall notify counsel for Respondents of an inadvertent disclosure of

6 information concerning any individual who is not a class member and shall destroy

7 information related to such individuals consistent with the terms of this Paragraph.

8

9

11. Nothing in this Order shall be construed as a waiver of any defense,

10 right or claim by Respondents, nor shall this Order affect the right of Respondents

11 to seek additional protection against the disclosure of any documents or materials.

12

12. Any party may apply to this Court at any time, upon proper notice, for

13 a modification of this Stipulated Protective Order with respect to the handling or

14 designation of any document or for any other purpose.

15

13. Nothing in this Order shall preclude the disclosure of any information

16 described in paragraph 3 with respect to a detainee who consents to the disclosure

17 of that information.

18

14. This Order shall be binding upon any present or future party to the

19 Rodriguez, et al. v. Lund, et al., No. 07-cv-3239-TJH (RNBx) (C.D. Cal.),

20 litigation.

21

15. This Order shall be effective and enforceable upon entry by the Court.

22 Dated: March 30, 2010

Dated: March 30, 2010

23

24

It is so ORDERED.

25 DATED: April 19, 2010 26
27

___________________________________ HONORABLE TERRY J. HATTER, JR. Senior U.S. District Court Judge

28

4

 
 C• ase 2:07-cv-03239-TJH-RNB Document 85 Filed 09/08/10 Page 1 of 33 Page ID #:538

1 AHILAN T. ARULANANTHAM (SBN 237841)

Email: aarulanantham~aclu-sc.org 2 JENNIFER STARK (SBN 267062)

" ,r -__

Email: jstark~aclu-sc.org

3 ACLUFOlJN1)ATION OF SOUTHERN CALIFORNIA

1313 West 8th Street

4 Los Angeles, CA 90017

Tel: (21]) 977-5211

5 Fax: e2l3) 977-5297

6 Attorneys For Petitioners (Additional counsel listed on following page)
7

8

UNITED STATES DISTRICT COURT

9

FOR THE CENTRAL DISTRICT OF CALIFORNIA

10

WESTERN DIVISION

11 ALEJANDRO RODRIGUEZ,

Case No. CV 07-3239-TJH (RNBx)

12 ABDIRIZAKADENFARAH, YUSSUF ABDIKADIR, ABEL PEREZ RUELAS,

SECOND AMENDED COMPLAINT

13 JOSE FARIAS CORNEJO, ANGEL ARMANDO AMAYA, for themselves

Honorable Terry J. Hatter

14 and on behalf of a class of similarly-

situated individuals,

15 Petitioners,

16 v.

17 ERIC HOLDER, United States Attorney

18 General; JANET NAPOLITANO,

Secretary Homeland Security; 19 THOMAS G. SNOW, Acting Director,

Executive Office for Immigration

20 Review; TIMOTHY ROBBINS, Field

Office Director, Los Angeles District,

21 Immigration and Customs Enforcement;

WESLEY LEE, Officer-in-Charge, Mira

22 Lorna Detention Center; et a1.; RODNEY

PENNER, Captain;, Mira Lorna 23 Detention Center; ~ANDRA
HUTCHENS;., Sheriff of Orange County; . 24 OFFICER NlJUYEN, Officer-in-Charge,
Theo L~~y Facili!y; CAPTAIN DAVIS

RECEIVED BUT
NOT FILED

25 NIGHS WONGER, Commander, Theo

Lacy Facility; CAPTAIN MIKE 26 KREUGER, ORerations Manager, James

SEP - 7 2010

A. Musick FaCIlity; ARTHUR 27 EDWARDS, Officer-in-Charg~, Santa
Ana City Jail; RUSSELL DAVIS, Jail 28 Administrator, Santa Ana City Jail,

CLERK, U.S. DISTRICT COURT

CENTRAL DISTRICT OF CAUFORNIA

BY

DEPUTY

Respondents.

Case 2:07-cv-03239-TJH-RNB Document 85 Filed 09/08/10 Page 2 of 33 Page ID #:539
1 Additional Counsel:
2 JUDY RABINOVITZ AMERICAN CIVIL LIBERTIES FOUNDATION
3 IMMIGRANTS' RI~HTS PROJECT 125 Broad Street, 18 Floor
4 New York, NY 10004 Telephone: (212) 549-2618
5 FacsImile: (212) 549-2654
6 JAYASHRI SRIKANTIAH (SBN 189566) STANFORD LAW SCHOOL
7 IMMIGRANTS' RIGHTS CLINIC Crown Quadrangle
8 559 Natlian Abbott Way Stanford, CA 94305-8610
9 Telephone: (650) 724-2442 FacsImile: (650) 723-4426
10 STEVEN A. ELLIS (SBN 171742)
11 WILLIAM TRAN (SEN 245104) . BRIAN K. WASHINGTON (SBN 248960)
12 SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000
13 Los AngeleS~ California 90013-1010 Telephone: 213) 896-6000
14 FacsImile: ( 13) 896-6600
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Case 2:07-cv-03239-TJH-RNB Document 85 Filed 09/08/10 Page 3 of 33 Page ID #:540

1 2 1.

JURISDICTION AND VENUE Petitioners Alejandro Rodriguez, Abdirizak Farah, Yussuf Abdikadir, Jose

3 Farias Cornejo, Abel Perez Ruelas, and Angel Amaya are non-citizens who have been

4 subjected to prolonged incarceration at the hands of the Immigration and Customs

5 Enforcement division of the Department of Homeland Security ("ICE"). Each of

6 them has been incarcerated for more than six months while their immigration

7 proceedings have been on-going without a hearing where the government has had to

8 justify their prolonged detention. They challenge their prolonged detention without

9 adequate process on statutory and constitutional grounds, on behalf of themselves and

loa class of similarly-situated detainees.

11 2. This Court has subject matter jurisdiction over these claims pursuant to 28

12 U.S.C. 2241 (habeas corpus), 28 U.S.C. 1651 (All Writs Act), and the Suspension

13 Clause of Article I of the U.S. Constitution. INS v. St. Cyr, 533 U.S. 289, 304 (2001);

14 Demore v. Kim, 538 U.S. 510,516-17 (2003). This Court also has jurisdiction to hear

15 this case under 28 U.S.C. 1331, which confers jurisdiction to consider federal

16 questions. Walters v. Reno, 145 FJd 1032, 1052 (9th Cir. 1998); cf. Wilkinson v.

17 Dotson, 544 U.S. 74, 82 (2005) (challenges to parole release procedures cognizable

18 under Section 1983).1

19 3. This Court may grant relief under 28 U.S.C. 1331 (federal question), 28 U.S.C.

20 1651 (All Writs Act), 28 U.S.C. 2241 and 2243 (habeas corpus), and 28 U.S.C. 2201-

21 02 (declaratory relief).

22 4. Venue is proper in the Central District of California pursuant to 28 U.S.C.

23 2241 (d) because Petitioners and all other class members are incarcerated at

24 Immigration and Customs Enforcement (ICE) detention facilities within this District.

25
26 J This action is both a complaint for declaratory and injunctive relief under 28 U.S.C. 27 1331 and a petition for writ of habeas corpus under 28 U.S.C. 2241, although for ease
of reference the complaint refers to "Petitioners" and "Respondents" rather than 28 "Plaintiffs" and "Defendants."

1

Case 2:07-cv-03239-TJH-RNB Document 85 Filed 09/08/10 Page 4 of 33 Page ID #:541 l.

1 Venue is proper pursuant to 28 U.S.C. 1391(b) because a substantial part of the events

2 giving rise to these claims occurred in this District.

3 4 5.

INTRODUCTION Petitioner Alejandro Rodriguez is a citizen of Mexico who came to the United

5 States at the age of one. Prior to the filing of the original complaint in this case, he

6 was detained for over three years without a hearing concerning whether his prolonged

7 detention was justified. During that time, the government refused even to consider

8 him for release while he litigated his removal case, despite the fact that it presented a

9 complex and novel question of law explicitly left open by the Supreme Court and the

10 Ninth Circuit.

11 6. The government released Mr. Rodriguez shortly after he filed a motion for class

12 certification in this case, but continued to subject him to serious restraints on his

13 liberty without allowing him to challenge them in a detention hearing. It then argued

14 that his case was moot. The Ninth Circuit disagreed, rejected the government's other

15 objections, and found class certification warranted. Rodriguez v. Hayes, 578 F.3d

16 1032 (9th Cir. 2009).

17 7. This Court subsequently certified the class and directed the formation of sub-

18 classes. By this complaint, five other detainees now join Mr. Rodriguez as class

19 representatives in this action. Each of them has been detained for more than six

20 months while their removal cases remain pending, yet none of them has been afforded

21 a hearing where the government has had to justify their prolonged detention under

22 sufficiently-rigorous procedures.

23 8. These detainees are far from alone. On any given day, there are at least

24 approximately 350 people, ifnot more, in immigration prisons throughout the Central

25 District who have been incarcerated for more than six months - many of them for

26

27

28

2

Case 2:07-cv-03239-TJH-RNB Document 85 Filed 09/08/10 Page 5 of 33 Page ID #:542
1 years - while their cases remain pending.2
2 9. None of these people have received a hearing to determine whether their 3 prolonged detention is warranted, and the vast majority have not received any hearing 4 at all.3 Thus, the government routinely incarcerates people for months or years
5 without demonstrating why their extended detention is necessary either to secure their
6 presence at the time of removal or to protect the public safety -- a dubious concern
7 given that many class members have no criminal history, and even those who have
8 been convicted have necessarily finished serving their sentences before their transfer
9 to immigration detention.
10 10. Petitioners, like all the detainees they seek to represent, are purportedly
11 detained under one of four general immigration detention statutes that govern the
12 detention of most non-citizens whom the government is trying to remove. See 8
13 U.S.C. 1225(b) (authorizing detention of aliens seeking admission); 8 U.S.C. 1226(a)
14 (authorizing detention of aliens pending a determination of removability); 8 U.S.C.
15 1226(c) (authorizing "mandatory" detention, without hearings, of certain aliens who,
16 inter alia, have been convicted of specified triggering offenses); 8 U.S.C. 1231(a)
17 2 This Court ordered the government to provide a list of detainees to Petitioner. That 18 list showed that over 350 people were detained in immigration prisons throughout the 19 Central District as of April 21, 2010.
20 3 Petitioners refer interchangeably throughout this complaint to a hearing to determine 21 whether "prolonged detention" is justified, a "constitutionally-adequate" hearing, and
an "adequate" hearing to justify prolonged detention. See Rodriguez, 578 F.3d at 22 1039 (noting that "Petitioner's requested relief includes ... providing all members of 23 the class constitutionally-adequate individual hearings before an immigration judge").
A hearing that is adequate to justify prolonged detention would include, at a 24 minimum, notice to detainees of their right to the hearing, an adversarial, transcribed, 25 in-person hearing before an immigration judge or other impartial adjudicator, counsel
for detainees who are unrepresented at that hearing, and a substantive standard 26 requiring the government to show by clear and convincing evidence that no set of 27 release conditions could reasonably assure the detainee's presence in the event of
removal or protect the community from serious danger, taking into account the length 28 of detention at issue.
3

Case 2:07-cv-03239-TJH-RNB Document 85 Filed 09/08/10 Page 6 of 33 Page ID #:543
1 (authorizing detention of aliens with final orders of removal during and after the 2 removal period). In keeping with the Ninth Circuit's terminology, these four statutes 3 are referred to herein as the "general immigration detention statutes." See generally 4 Nadarajah v. Gonzales, 443 F.3d 1069,1078,1080-81 (9th Cir. 2006) (contrasting 5 general immigration detention statutes that do not explicitly authorize prolonged 6 detention with specific statutes at 8 U.S.C. 1226a and 8 U.S.C. 1531-37 that authorize 7 prolonged detention on, inter alia, national security grounds). 8 11. Petitioners contend that because none of these general immigration detention 9 statutes explicitly authorize prolonged detention, they cannot be interpreted to 10 authorize detention of longer than six months absent a hearing where the government 11 shows, under a suitably-rigorous standard, that further prolonged detention is justified. 12 See generally Casas-Castrillon v. Dep't of Homeland Sec., 535 F.3d 942, 950 (9th Cir. 13 2008) (construing general detention statutes to require bond hearings where 14 government bears burden of proof because "[w]e conclude that prolonged detention 15 without adequate procedural protections would raise serious constitutional concerns"). 16 Moreover, if these statutes did authorize prolonged detention they would violate the 17 Due Process Clause, at least absent substantially greater procedural constraints. See 18 generally Zadyydas v. Davis, 533 U.S. 678, 690-92 (2001) (finding "severe and 19 obvious" problems with prolonged and indefinite detention under limited 20 administrative procedures). 21 12. Respondents, in contrast, maintain a policy or general practice - which 22 Petitioners contend is unlawful - of detaining people for prolonged time periods 23 without providing them adequate hearings. Pursuant to this unlawful policy or general 24 practice, Respondents have incarcerated the Petitioners and each of the class members 25 they represent pursuant to one of the general immigration detention statutes for more 26 than six months. Pursuant to Respondents' policy or general practice, during that time 27 neither Petitioners nor any other similarly-situated person have had a hearing where 28 the government has had to show that their prolonged detention remains justified.
4

Case 2:07-cv-03239-TJH-RNB Document 85 Filed 09/08/10 Page 7 of 33 Page ID #:544

1

Respondents' general policies and practices of prolonged detention without

2 hearings are in violation of the statutory and constitutional rights of the Petitioners and

3 other class members. To remedy this on-going violation of the "law, Petitioners bring

4 this action seeking declaratory and injunctive relief on behalf of themselves and a

5 class of similarly-situated persons.

6

PARTIES

7 13. Petitioner Alejandro Rodriguez is a citizen of Mexico. He was detained for

8 over three years while litigating his removal case prior to the filing of the original

9 complaint in this case. He has never been afforded a hearing to determine whether his

10 prolonged detention is justified. He is currently residing in Los Angeles under

11 extremely restrictive release conditions while his removal proceedings remain

12 pending.

13 14. Petitioner Abdirizak Aden Farah is a Somalian refugee who has been

14 incarcerated at Mira Lorna Detention Center for over eight months without a hearing

15 to determine that his detention is warranted. Indeed, he has received no explanation of

16 any kind as to why he cannot be released pending completion of his removal hearings,

17 despite having a close family friend in Minnesota willing to house him and no

18 criminal history of any kind. 19 15. Petitioner Yussuf Abdikadir is another Somalian refugee who has been

20 incarcerated by ICE for approximately six months without a hearing to determine 21 whether his detention is warranted. He too has received no explanation of any kind as

22 to why he cannot be released pending completion of his removal proceedings, despite

23 having a sponsor in San Diego willing to house him and no criminal history of any

24 kind. 25 16. Petitioner Abel Perez Ruelas is a Mexican national who entered the United

26 States on a visitor's visa approximately eight years ago and is now married to a U.S.

27 citizen. He has been incarcerated for 16 months pending completion his removal

28 proceedings. He received a bond hearing where he bore the burden to prove that he

5

Case 2:07-cv-03239-TJH-RNB Document 85 Filed 09/08/10 Page 8 of 33 Page ID #:545
1 was not a danger or flight risk, but the judge denied bond, and later set it at an amount 2 he could not pay. Although he is without doubt eligible to adjust status, he remains 3 detained, even though the government has never had to justify his prolonged 4 detention. 5 17. Petitioner Jose Farias Cornejo is also a Mexican national, but is a lawful 6 permanent resident of this country, where he has lived since before his first birthday. 7 He has been convicted of relatively minor offenses, the most serious of which is 8 possession of a controlled substance, for which he was sentenced to 180 days in jail. 9 However, he has spent more than twice that amount of time in immigration prison 10 while awaiting a final decision in his immigration case. Although the government 11 does not dispute that he is eligible for cancellation of removal and has stated in 12 immigration court that it does not intend to oppose his application, he remains in 13 detention awaiting a final decision in his case without having received a detention 14 hearing of any kind. As the government interprets the immigration laws, his drug 15 conviction renders him ineligible even to be considered for release from detention, 16 even though it does not bar him from obtaining relief to remain. 17 18. Petitioner Angel Armando Amaya is a citizen of El Salvador who has lived in 18 the United States since the age of eleven. He has never received a criminal sentence 19 of longer than 90 days, but has been incarcerated by immigration authorities for over 20 18 months while litigating his removal case. During that time he has never seen an 21 immigration judge, let alone been afforded an adequate bond hearing in light of his 22 prolonged detention. He is prima facie eligible for relief allowing him to become a 23 lawful permanent resident, but remains detained while the Ninth Circuit considers 24 whether his prior lawyer's failure to advise him as to the filing deadline constitutes 25 ineffective assistance of counsel, such that his failure to meet it does not bar him from 26 obtaining relief for which he is otherwise-eligible. 27 19. Respondent Eric Holder is the Attorney General of the United States and the 28 head of the Department of Justice, which encompasses the Board of Immigration
6

Case 2:07-cv-03239-TJH-RNB Document 85 Filed 09/08/10 Page 9 of 33 Page ID #:546
1 Appeals ("BIA") and immigration judges as a subunit - the Executive Office of 2 Immigration Review. Mr. Holder shares responsibility for implementation and 3 enforcement of the immigration laws along with Respondent Napolitano. Mr. Holder 4 is a legal custodian of Petitioner. Mr. Holder is sued in his official capacity. 5 20. Respondent Janet Napolitano is the Secretary of Homeland Security and heads 6 the Department of Homeland Security, the arm of the federal government responsible 7 for enforcement of immigration laws. Ms. Napolitano is the ultimate legal custodian 8 of Petitioner. Ms. Napolitano is sued in her official capacity. 9 21. Defendant Thomas G. Snow is the Acting Director for the Executive Office for 10 Immigration Review ("EOIR"), which is the federal agency that operates the 11 immigration courts. Mr. Snow is responsible for the supervision of the Deputy 12 Director, the Chairman of the BIA, the Chief Immigration Judge, the Chief 13 Administrative Hearing Officer, and all agency personnel in the execution of their 14 duties. Mr. Snow is sued in his official capacity. 15 22. Respondent Timothy Robbins is the Field Office Director for the Los Angeles 16 District of ICE. In his official capacity, Mr. Robbins is authorized to release 17 Petitioner and has legal custody of him. He is sued in his official capacity. 18 23. Respondent Lee Baca is the Sheriff of Los Angeles County, and therefore the 19 officer responsible for the operation of the Mira Lorna Detention Center in Lancaster, 20 California. Mira Lorna's website acknowledges that it houses immigration detainees. 21 However, it states that "[w]e function as a regular County jail with the exception that 22 the individuals we house are identified as detainees." Sheriff Baca is a legal custodian 23 of people detained at that facility, and is sued in his official capacity. 24 24. Respondent Wesley Lee is the Officer-in-Charge at the Mira Lorna Detention 25 Center, and therefore the highest-ranking ICE officer at the facility. He is a legal 26 custodian of a number of class members. Mr. Lee is sued in his official capacity. 27 25. Respondent Rodney Penner is the Captain of the Mira Lorna Detention Center, 28 and the highest ranking Sheriffs Department official at the facility. Captain Penner is
7

Case 2:07-cv-03239-TJH-RNB Document 85 Filed 09/08/10 Page 10 of 33 Page ID #:547
1 a legal custodian of a number of class members, and is sued in his official capacity. 2 26. Respondent Sandra Hutchens is the Sheriff of Orange County, and therefore the 3 officer responsible for the operation of the Theo Lacy Facility and the James Musick 4 facility, both of which incarcerate class members in Orange County. She is a legal 5 custodian of people detained at those facilities, and is sued in her official capacity. 6 27. Respondent Officer Nguyen is the Officer-in-Charge at the Theo Lacy facility, 7 and therefore the highest-ranking ICE officer at the facility. He is a legal custodian of 8 Mr. Amaya and other class members. Mr. Nguyen is sued in his official capacity. 9 28. Respondent Captain Davis Nighswonger is the commander of the Theo Lacy 10 Facility, which is, according to its own website, the largest "correctional institution" 11 in Orange County. Nonetheless, Theo Lacy incarcerates a number of immigration 12 detainees, including Angel Amaya. Captain Nighswonger is a legal custodian of Mr. 13 Amaya and other class members, and is sued in his official capacity. 14 29. Respondent Captain Mike Kreuger manages the operations of the James A. 15 Musick Facility, another prison in Orange County. According to its website, the 16 Musick facility incarcerates "pre-trial and sentenced" inmates. Nonetheless, upon 17 information and belief, it also houses class members, none of whom are criminal 18 detainees. Mr. Kreuger is a legal custodian of those class members, and is sued in his 19 official capacity. 20 30. Respondent Arthur Edwards is the Officer-in-Charge at the Santa Ana City Jail 21 and therefore the highest-ranking ICE officer at the facility. He is a legal custodian of 22 a number of class members. Mr. Edwards is sued in his official capacity. 23 31. Respondent Russell Davis is the Jail Administrator of the Santa Ana City Jail, 24 whose stated goal is to fulfill the "incarceration needs" of the Santa Ana Police 25 Department. Nonetheless, the Santa Ana Jail incarcerates several dozen class 26 members on any given day. Therefore, Mr. Davis is a legal custodian of a number of 27 28
8

Case 2:07-cv-03239-TJH-RNB Document 85 Filed 09/08/10 Page 11 of 33 Page ID #:548
1 class members, and is sued in his official capacity.4
2 FACTS AND PROCEDURAL HISTORY
3 Alejandro Rodriguez
4 32. Petitioner Alejandro Rodriguez was detained for over three years while he
5 challenged the government's efforts to deport him to Mexico, a country where he has
6 not lived since he was a baby.
7 33. Mr. Rodriguez came to this country in September 1979, when was one year old.
8 He became a lawful permanent resident on June 4, 1987, when he was nine years 01d.5 9
34. On or about July 29, 1998, Mr. Rodriguez pled guilty to Unlawful Driving or 10
Taking of a Vehicle under section 10851 (A) of the California Vehicle Code (CVC). 11
For this crime he was sentenced to two years. Five years later, on or about October 12
21, 2003, he pled no contest and was convicted of Possession of a Controlled 13
Substance under California Health and Safety Code section 1I 377(A), for which he 14
received formal probation of 5 years under the conditions of California Prop 36. He 15
was transferred to DHS custody after his arrest, on April 10, 2004. He was detained 16
for over three years after that transfer, until the government released him shortly after 17
the filing of the class certification motion in this case. 18
35. The government charged Mr. Rodriguez with being removable based on his 19
20
21 4 The government has taken conflicting positions in detention litigation concerning who the proper Respondent should be in habeas petitions challenging immigration
22 detention. Petitioners have sued every official who could constitute an appropriate
23 respondent under the different theories advanced by the government, as well as the officials who constitute the proper defendants for a complaint under Section 1331.
24
25 5Mr. Rodriguez narrowly missed becoming a citizen due to events beyond his control.
He would have gained automatic citizenship, through his father, ifhis parents had
26 legally separated prior to his 18th birthday, or if he had been under the age of 18 at the
27 time of the enactment of the Child Citizenship Protection Act of2000. However, his parents formally separated shortly after he turned 18, and he was 23 by the time the
28 Act passed. See 8 U.S.C. 1431.
9

Case 2:07-cv-03239-TJH-RNB Document 85 Filed 09/08/10 Page 12 of 33 Page ID #:549
1 drug offense on April 15, 2004. At his removal hearing, Mr. Rodriguez contested that
2 his conviction rendered him removable, and argued in the alternative that he was 3 eligible for relief from removal.6
4 36. The government received a continuance to alter the charging documents in his
5 case, after which it charged Mr. Rodriguez with being deportable on an additional
6 ground based on his 1998 conviction for theft. Subsequently, on July 21, 2004, an
7 immigration judge ordered him removed, holding that both his drug offense and his
8 theft offense rendered him removable. The Judge held that the drug offense was a
9 controlled substance offense triggering removal and that the theft conviction was an 10 aggravated felony, triggering mandatory removal. 7 The immigration judge ordered
11 him deported to Mexico. Mr. Rodriguez appealed that decision to the BIA.
12 37. On December 21, 2004, the Board reversed the Judge's decision that the drug
13 possession conviction rendered Mr. Rodriguez removable, but upheld the decision that
14 his theft conviction was an aggravated felony.
15 38. On December 28,2004, Mr. Rodriguez timely petitioned for review of the
16 Board's decision to the Ninth Circuit, arguing inter alia that his crime was not an
17 6An ICE officer initially deemed him eligible for release on bond, and set the bond at 18 $15,000. However, Mr. Rodriguez was unable to afford the bond in that amount, and 19 an immigration judge denied his request to lower the bond amount. Shortly after the
BIA decided his case in 2004, the government revoked that bond order and ordered 20 him detained without bond under the mandatory detention provision codified at 8 21 U.S.C. 1226(c).
22 7Although not charged in the immigration charging document, the government also 23 presented evidence from court records that, on or about October 24,2003, a man using
the name Alejandro Rodriguez (who also used another name as an alias) pled guilty to 24 California Health and Safety Code section 1155O(a), Under the Influence of a 25 Controlled Substance, and was sentenced to 120 days in jail, which he served during
the same time that Mr. Rodriguez was released and reporting to the court for his 26 conviction of October 21, 2003. The date of conviction makes it highly unlikely that 27 Mr. Rodriguez was in fact convicted of this offense. Nonetheless, the IJ ruled that this
conviction constituted a second drug offense, rendering Petitioner removable on the 28 basis of the drug convictions.
10

Case 2:07-cv-03239-TJH-RNB Document 85 Filed 09/08/10 Page 13 of 33 Page ID #:550
1 aggravated felony as defined by the Immigration and Nationality Act. Mr. Rodriguez 2 then sought a stay of removal, which the government opposed. Thereafter, the Ninth 3 Circuit granted his request for a stay of removal, and therefore necessarily found that 4 his case presents substantial legal claims. See Maharaj v. Ashcroft, 295 F.3d 963,966 5 (9th Cir. 2002). 6 39. While Mr. Rodriguez's case was pending at the Ninth Circuit, that court decided 7 another case holding that Mr. Rodriguez's theft conviction was not an aggravated 8 felony. The government then moved to hold his case in abeyance while it sought en 9 banc review of that decision. The Ninth Circuit granted the motion, even though he 10 had already been detained for 15 months at that time._After en banc review failed, the 11 government sought Supreme Court review in the other case, and again requested that 12 Mr. Rodriguez's case be held. After the Supreme Court granted cert, his case was 13 held still further. In the end, his case was held in abeyance for over two years, but 14 none of the decisions for which it was held established that he was subject to 15 mandatory removal, as the immigration courts had found. 16 40. Eventually, the government largely conceded that Mr. Rodriguez's convictions 17 did not subject him to mandatory removal, and it agreed to remand his case to the 18 immigration courts on this basis. His case is now back before an immigration judge, 19 who will consider his (exceedingly strong) application for cancellation of removal in 20 January 2011. 21 41. During the three years of Mr. Rodriguez's detention, the government never held 22 a hearing as to whether his prolonged detention is justified. In fact, the only process 23 Mr. Rodriguez received with respect to his detention was what the government calls 24 "File Custody Reviews." The first of these occurred on March 10,2005, when an ICE 25 agent presumably read through his file and issued a "Decision to Continue Detention." 26 No ICE official interviewed Mr. Rodriguez, let alone held a hearing, prior to making 27 this decision. Instead, ICE merely gave him a questionnaire to fill out, asking for 28 information regarding family members, employment experience, and any outstanding
11

Case 2:07-cv-03239-TJH-RNB Document 85 Filed 09/08/10 Page 14 of 33 Page ID #:551
1 probation requirements. Although Mr. Rodriguez documented his work as a dental 2 assistant and his extensive family ties, including his U.S. citizen father and sister, and 3 his lawful permanent resident mother and brother, ICE denied his request for release, 4 stating simply that he would remain detained until the Ninth Circuit rendered its 5 decision. The notice offered no further explanation for the decision to continue 6 detention, made no mention of how long Mr. Rodriguez had been detained (eleven 7 months at that time), and offered no suggestions as to what steps he might take to 8 effect a different outcome in any future decisions. 9 42. In September 2005, ICE conducted another file custody review, which it 10 apparently denied for similar reasons, and in March 2006 the process was repeated 11 again. In each of these instances, the government did not even provide Mr. Rodriguez 12 with a written decision as to why he would remain incarcerated for many more 13 months. In March 2007 the government chose to continue Mr. Rodriguez's detention 14 again. At the time of that last custody decision he had been detained for nearly three 15 years, yet the decision made no mention of this fact. Instead, the decision asserted 16 that continued detention was justified because the Ninth Circuit would decide his case 17 soon, which was entirely incorrect. 18 43. Shortly after the original class complaint in this case was filed, the government 19 released Mr. Rodriguez from detention, but continued to subject him to severe 20 restraints on his liberty which remain in effect, including a requirement that he abide 21 by a strict curfew and wear an electronic monitoring device at all times. The 22 government has continued to require that he abide by these restrictions, and has never 23 afforded him a hearing before an immigration judge to determine if they are necessary 24 to ensure his appearance at his final removal hearing, where he will likely be granted 25 cancellation of removal.
26 Abdirizak Aden Farah 27 44. Abdirizak Aden Farah is a Somali refugee who has been detained for over eight 28 months at the Mira Loma facility without any kind of hearing to determine whether
12

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1 his detention is justified. 2 45. Mr. Farah was born on May 5, 1987 in Kismayo, Somalia. His family lived in 3 Mogadishu for the early part of his childhood. Thousands of refugees have fled 4 Somalia since the country's civil war erupted approximately twenty years ago. Today, 5 there is no functioning government in most of Somalia, and the country exists in a 6 state of constant civil war and virtual anarchy. The United Nations High Commission 7 for Refugees issued guidelines in May 2010 largely advising against the return of 8 anyone from central or southern Somalia, including even asylum seekers whose 9 claims had been rejected. With respect to the capital of Mogadishu (where Mr. Farah 10 lived prior to suffering persecution), a Human Rights Watch researcher has stated that 11 "Mogadishu is one of the world's most dangerous places ... Returning people there is 12 not just risky; it's a potential death sentence." 13 46. Mr. Farah first faced persecution in Somalia as a child, when his family was 14 forced to flee Mogadishu because they were members of the minority Marehan clan 15 who faced danger from members of the Hawiye, a powerful majority clan in Somalia. 16 Eventually, the family was able to settle in Kismayo, a city in Somalia where the 17 Hawiye were not powerful. Several years later, his father was shot and killed by 18 members of a Hawiye sub-clan when he returned briefly to Mogadishu to try to sell 19 the family home. 20 47. Mr. Farah fled Somalia in April 2009 in order to escape the al-Shabaab, a 21 militant Islamic organization that is trying to take over Somalia. Al-Shabaab militants 22 shot and killed his brother Mohamed because he worked as a driver for the Somali 23 Transitional Federal Government (TFG) in the summer of2007. These same militants 24 nearly killed Mr. Farah in the same attack by slashing his wrist with a knife. 25 Afterward, al-Shabaab members repeatedly accused him of working for the TFG and 26 finally threatened to kill him ifhe did not join them. 27 48. After the last of these threats, Mr. Farah's uncle sent money for him to flee. 28 With the assistance of several people, he arrived by a circuitous route at the southern
13

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1 border of the United States, where he presented himself at the border and requested 2 asylum on or about December 31, 2009. An asylum officer found his claim credible, 3 and referred him for a full asylum hearing before an immigration judge. 4 49. Mr. Farah has had several hearings in his immigration case, the first of which 5 took place in March 2010. At several of these, the immigration judge continued his 6 hearing because he did not have a lawyer, while others were cancelled because the 7 judge or the translator were not present. His next hearing is scheduled for late 8 October 2010. 9 50. Mr. Farah has applied for release on parole under 8 C.F.R. 212(d)(5)(A). Under 10 these procedures, the decision whether or not to release him is made by a single 11 officer, with no appeal process, and without providing a hearing of any kind. An ICE 12 officer denied him release without meaningful explanation. 13 51. Mr. Farah's wife and baby daughter remain in Somalia. He has been unable to 14 establish any contact with them because of his detention.
15 Yussuf Abdikadir 16 52. Yussuf Abdikadir is also a Somalian refugee. He has been detained by 17 immigration authorities since early March 2010, and also has not received a detention 18 hearing of any kind. 19 53. Mr. Abdikadir was born on October 5, 1980.8 He lived with his family20 including his parents and five siblings -- as a child in Mogadishu. He is also a 21 member of a minority clan in Somalia. 22 54. In 1991, as the Somali political structure disintegrated, a militia associated with 23 a dominant clan, the Hawiye, attacked Mr. Abdikadir's family. They killed his two 24 older brothers, his father, and his grandmother. They also severely mistreated other 25 members of the family, and raped his mother. 26 55. Mr. Abdikadir and his surviving family members then fled to Kenya, where 27 28 8 Yussufis his given name, while Abdikadir is his father's given name.
14

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1 they lived in various refugee camps for most of the next two decades. He married 2 Shukri Hussein, also a Somalian refugee, while in the camps, and the couple had three 3 children. (Ms. Hussein also has a son from a prior relationship, who is now Mr. 4 Abdikadir's step-son). 5 56. Life in the refugee camps was very hard for Mr. Abdikadir and his family. 6 Kenya granted them no permanent status, and as a result they were forced to live in 7 the camps and denied the right to work. At the same time, the Kenyan government 8 and international agencies failed to provide sufficient food for the refugees. He and 9 his family would have to wait for hours during the heat of the day to obtain their small 10 food rations, and often were mistreated by the Kenyan authorities while waiting. Mr. 11 Abdikadir occasionally worked illegally in order to supplement his family's meager 12 provisions, but Kenyan authorities arrested and punished him for doing so. The 13 Kenyan authorities also did little if anything to stop the bandits who would raid the 14 camps at night, raping camp residents and pillaging their belongings. 15 57. After life in the camps became too difficult, Mr. Abdikadir's mother managed 16 to sell some land the family owned in Somalia, and used these proceeds to procure 17 funds to allow her son to escape. Unable to return to Somalia or survive further life in 18 the Kenyan refugee camps, Mr. Abdikadir fled. He traveled a circuitous route in 19 search of a country with refugee protections, and ultimately arrived at the southern 20 border of the United States seeking asylum. 21 58. At the border crossing from Tijuana he presented a birth certificate and applied 22 for asylum, entering ICE detention in March 2010. He was sent to Mira Lorna shortly 23 afterward, and passed his credible fear interview several weeks later, in approximately 24 April 2010. 25 59. Mr. Abdikadir has been before an immigration judge several times since then, 26 but has yet to even submit an application for asylum, because he was unable to find a 27 lawyer to represent him and speaks virtually no English. 28 60. Mr. Abdikadir has also applied for release on parole under 8 C.F.R.
15

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1 212(d)(5)(A). As with Mr. Farah, the decision whether or not to release Mr. 2 Abdikadir is made by a single officer, with no appeal process, and without a hearing 3 of any kind. Mr. Abdikadir requested release from this officer, and in doing so 4 provided his birth certificate as well as a sworn affidavit from a friend of his who lives 5 in San Diego and is willing to house and assist him. Nonetheless, his parole request 6 was denied. The sole explanation provided was a check mark in a box next to a 7 paragraph which states "You have not established to ICE's satisfaction that you will 8 appear as required for immigration hearings, enforcement appointments, or other 9 matters, if you are paroled from detention." Other than requesting a redetermination 10 based on changed circumstances, Mr. Abdikadir has no recourse to any further process 11 for appeal. 12 61. Mr. Abdikadir has suffered during his time in detention, not only because of the 13 traumatic effects of detention in general on those who have suffered past persecution, 14 but also because of his medical problems. Mr. Abdikadir has some kind of problem 15 concerning his eyes - perhaps tied to light sensitivity -- that causes them to be 16 constantly red and irritated. Although he has sought medical attention for this 17 problem at the Mira Lorna Detention Center, the clinic there has not provided him 18 with any medication that has addressed the problem. 19 62. Mr. Abdikadir has been unable to communicate with his family while in 20 detention. He awaits the opportunity to win his release and his status, so that he can 21 begin to recover from the years of suffering he has faced, and also so that he can speak 22 with and hopefully some day re-unite with his wife and children. Given that he has 23 not even submitted an asylum application yet, he will remain incarcerated without a 24 hearing for months more absent this Court's intervention. 25
Abel Perez Ruelas 26
63. Abel Perez Ruelas is a citizen of Mexico. He has been in immigration detention 27
at Mira Lorna Detention Center for 17 months, since April 8, 2009. 28
16

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1 64. Mr. Perez Ruelas was born on January 25, 1967 in Jalisco, Mexico. In 1996, he 2 met Maria del Rosario, with whom he had a daughter, Azirit Lessandra, one year later. 3 65. He was admitted to the United States in 2002 on a visitors' visa, two years after 4 he broke up and lost contact with with Ms. del Rosario. 5 66. In approximately 2007, about five years after Mr. Perez-Ruelas came to live in 6 the United States, he received a call from his mother, who told him that Ms. del 7 Rosario had died in childbirth in Mexico, and that his daughter had been sent to live 8 with her mother's parents. Since then, Mr. Perez Ruelas has been living with the hope 9 that one day he may bring his daughter to the United States to live with him. 10 67. On December 22,2008, Mr. Perez Ruelas married Maria Navichoque Perez, a 11 U.S. citizen. She is a nurse at the Los Angeles Jewish Home, a non-profit senior living 12 facility in Reseda, California. The couple filed to adjust his status based on their 13 marriage in approximately February 2009. 14 68. After his marriage, Mr. Perez Ruelas became the stepfather of Maria Perez's 15 four children, all of whom are U.S. citizens by birth. The two youngest children, 16 Hector and Emily, live with Mr. Perez Ruelas and his wife in their home in Reseda, 17 California. 18 69. Mr. Perez Ruelas has lived and worked in the United States for almost eight 19 years. He works in construction, primarily with cement and tiles. Prior to his 20 detention, he regularly attended church with his wife in Pacoima and Reseda. 21 70. Mr. Perez Ruelas has had three prior convictions for driving under the influence 22 of alcohol, none for which he spent more than two months in jail. Mr. Perez Ruelas 23 served three months of probation for his first offense in 1994; he served 10 days in jail 24 for his second, a decade later in 2004; and he served 60 days in jail for his third, which 25 occurred four years later. Pursuant to his sentence for the last conviction, Mr. Perez 26 Ruelas has diligently attended Alcoholics Anonymous for over a year, and has 27 continued attending AA meetings even while in immigration detention. 28 7l. On or about April 8, 2009, Mr. Perez Ruelas was released from jail for his last
17

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1 offense. Immigration and Customs Enforcement officials immediately took him into 2 immigration custody, notwithstanding his pending application to adjust his status 3 based on his marriage. At the time, Mr. Perez-Ruelas was in the process of becoming 4 a lawful permanent resident of the United States. 5 72. Mr. Perez Ruelas was given a bond hearing on April 21, 2009, pursuant to 8 6 U.S.C. 1226(a), at which he bore the burden to prove that he was not a danger or flight 7 risk. Upon information and belief, the immigration judge knew that Mr. Perez Ruelas 8 was married to a U.S. citizen and that he had a pending adjustment application, but 9 nonetheless the judge denied him release on bail. He told Mr. Perez Ruelas that his 10 prior DUI convictions made him a danger to society, even though his sentence had 11 long since expired. 12 73. With the assistance of his attorney, Mr. Perez Ruelas applied for a bond 13 reduction in February 2010. At that hearing, the immigration judge set a bond of 14 $5,000, an amount too high for Mr. Perez Ruelas's family to pay. 15 74. Because he could not pay, Mr. Perez Ruelas remained in immigration detention 16 - where he has been for the past 16 months awaiting adjudication of his case. His last 17 hearing was over four months ago, on April 15, 2010. 18 75. On July 30,2010, Mr. Perez Ruelas and his wife received notice that their 19 application to adjust his status had been approved, with a priority date of March 22, 20 2009. Although he is entitled to adjust status immediately and will no doubt 21 ultimately prevail in his immigration case, he nonetheless remains detained for no 22 apparent reason, merely because under the stringent standard applied at his bond 23 hearing he cannot pay the bond that the immigration judge set in his case. 24
Jose Farias Cornejo 25 26 76. Jose Farias Cornejo is a citizen of Mexico and a lawful permanent resident of 27 the United States. He has been in immigration detention at Mira Loma Detention 28 Center for over eleven months, since September 14,2009.
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1 77. Mr. Farias Cornejo was born on August 14, 1984 in Michoacan, Mexico. He 2 was brought to the United States prior to his first birthday by his parents, who were 3 migrant farm workers. He has never left this country, and speaks fluent English. 4 78. Mr. Farias Cornejo has four siblings. All four are U.S. citizens. Mr. Farias 5 Cornejo's mother is also a lawful permanent resident of the United States. 6 79. Mr. Farias Cornejo spent his childhood years in Washington and his 7 adolescence in California because his parents were migrant farm workers. He attended 8 elementary school in San Diego for a few years before moving to Montclair, 9 California to attend middle school and high school. He took special education classes 10 at Montclair High School because of his diagnosed learning disability. 11 80. After graduating from high school, Mr. Farias Cornejo worked at various jobs 12 near his hometown in California, including in construction -- manufacturing jacuzzis 13 and landscaping. 14 81. Mr. Farias Cornejo has had several prior convictions. In 2007, he was convicted 15 of possession of methamphetamine and was given the opportunity to receive 16 substance abuse treatment as an alternative to incarceration under California 17 Proposition 36. Mr. Farias Cornejo diligently completed his drug treatment classes, 18 but because he could not afford to pay the mandatory fine, he was sentenced to 180 19 days in jail. 20 82. Upon information and belief, in 2009 Mr. Farias Cornejo was convicted of a 21 misdemeanor California theft offense, for which he spent 14 days in jail. In that same 22 year, he was convicted of being under the influence of a controlled substance, for 23 which he spent 60 days in jail. 24
83. Shortly after serving his last sentence, in September 2009, federal immigration 25
officials initiated removal proceedings against him and placed him in immigration 26
detention, citing their authority to mandatorily detain any individual with a prior 27
controlled substance offense under 8 U.S.C. 1226(c). 28
19

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1 84. Although the government contends that Mr. Farias Cornejo is subject to 2 "mandatory detention" without a bond hearing under that provision, it has 3 acknowledged that he is eligible for relief from removal in the form of cancellation of 4 removal under 8 U.S.C. 1229b, because he has not been convicted of an "aggravated 5 felony." 6 85. Mr. Farias Cornejo was given a cancellation application on October of 2009, 7 but struggled to find an attorney to assist him in completing it. After five months in 8 detention, he finally found an attorney, but that attorney did not file his application. 9 Eventually Mr. Farias Cornejo found a different attorney to represent him, in June of 10 this year. Through his new attorney Mr. Farias Cornejo finally filed his cancellation 11 application, nearly ten months after he was placed into immigration detention. 12 86. Upon information and belief, at his cancellation hearing on August 17,2010, 13 the government stated that it had no objection to his application. However, the 14 immigration judge told Mr. Farias Cornejo that he had an outstanding warrant, and 15 therefore refused to adjudicate the application. Instead, the judge set his next court 16 hearing for November 15,2010, apparently on the assumption that his warrant would 17 be resolved prior to that time. 18 87. Although Mr. Farias Cornejo poses no flight risk, is not a danger to the 19 community, and is eligible for relief from removal, he remains subject to continued 20 detention. He has never had a hearing to determine whether his detention remains 21 justified even though he has now been incarcerated for nearly a year.
22 Angel Armando Amaya 23 88. Angel Armando Amaya is a citizen ofEl Salvador who was born on August 20, 24 1976. He came to the United States with his family at the age of eleven and has never 25 left. He attended junior high and high school in Southern California. 26 89. Prior to his arrest by immigration authorities, Mr. Amaya lived with his mother, 27 Maria, who is a United States citizen, and was also frequently in touch with his 28 brother and sister, both of whom live in Southern California. (He also has an older
20

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1 brother who lives in El Salvador). 2 90. Mr. Amaya has worked in the United States his entire adult life, engaging in a 3 variety of construction-related jobs including forklift driving, materials handling, 4 landscaping, and in shipping and receiving. 5 91. Immigration officials arrested Mr. Amaya in what apparently was a worksite 6 raid in approximately 1994. At that time, government officials detained him at the 7 San Pedro Detention facility. He eventually had a hearing before an immigration 8 judge who ordered him released on bond because he was eligible for relief under the 9 Nicaraguan and Cuban Adjustment Relief Act ("NACARA"). The judge instructed 10 him to find a lawyer to help him apply. 11 92. Shortly afterward, when Mr. Amaya went to the federal immigration building, 12 he met a man acting as an attorney named Jose Quinones. Mr. Quinones offered to 13 file Mr. Amaya's NACARA application for a fee. 14 93. Mr. Quinones eventually filed the application, which was based on Mr. 15 Amaya's mother's eligibility for NACARA. A hearing on the application was set for 16 October 29, 1999. 17 94. Shortly before the hearing, Mr. Amaya's mother became seriously ill. Because 18 he had to take his mother to the hospital and attend to her, Mr. Amaya could not 19 attend the court hearing. At the hearing, the immigration judge ordered him removed 20 in absentia, notwithstanding the fact that he was prima facie eligible for NACARA 21 relief. 22 95. A few days after the hearing, after his mother's condition had stabilized, Mr. 23 Amaya called Mr. Quinones to discuss his immigration case. Mr. Quinones stated 24 that the case now had to be re-opened, and that he would charge Mr. Amaya several 25 thousand dollars to do this. When Mr. Amaya stated that he did not have such funds 26 available, Mr. Quinones told him to contact him when he had saved up the money. He 27 did not mention that Mr. Amaya had to file the motion within 180 days, as is required, 28 or that he could be deported ifhe did not file the motion.
21

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1 96. Several years later, Mr. Quinones was suspended from practicing before the 2 immigration courts by the Executive Office of Immigration Review. Ifhe ever was a 3 licensed attorney, he has presumably been disbarred. 4 97. Mr. Amaya continued to live and work in the United States for the ensuing 5 decade. Upon information and belief, he received several misdemeanor convictions 6 for driving without a license during this time, but was not convicted of any other 7 offense. 8 98. On February 14,2009, immigration authorities arrested Mr. Amaya at his home 9 in Pomona, which he shares with his mother, based on his outstanding removal order 10 from ten years earlier. They transferred him to the Mira Lorna Detention Center. 11 99. With the assistance of non-profit legal service provider Catholic Charities, Mr. 12 Amaya filed a motion to reopen his case based on ineffective assistance of counsel. 13 However, the immigration judge denied the motion, and the BIA affirmed the 14 decision, asserting that the motion was untimely and not subject to tolling based on 15 ineffective assistance. According to the Board, the attorney had no duty to inform Mr. 16 Amaya of the filing deadline for the motion to reopen because the attorney never 17 agreed to represent him with respect to the motion. Thus, the Board declined to 18 reopen his case, notwithstanding the fact that Mr. Amaya is eligible for NACARA 19 relief.9 20 100. Mr. Amaya subsequently hired attorney Shan Potts, who now represents him 21 before the Ninth Circuit. The Ninth Circuit granted Mr. Amaya a stay of removal, but 22 briefing has not yet begun in his petition for review of the BIA's decision. His case 23 will likely take well over a year to decide at the Ninth Circuit, given the court's 24 substantial case backlog. 25 101. Mr. Amaya's incarceration has worked a great hardship on his U.S.-citizen
26
27 9 Upon information and belief, Mr. Amaya has one misdemeanor conviction for drug possession from approximately 1996 and several convictions for driving without a
28 license. None of these render him ineligible for NACARA.
22

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1 mother, with whom he lived prior to his arrest. She has had difficulty paying rent for
2 the apartment they shared, and also has suffered from the absence of his emotional
3 support.
4 CLASS-WIDE ALLEGATIONS
5 102. Petitioners are amongst approximately at least 350 detainees, ifnot more, in the
6 Central District on any given day whom the government has incarcerated for more
7 than six months without proving at an adequate hearing that their prolonged detention
8 is justified. 10 Indeed, it is the government's policy or practice to detain non-citizens
9 under the general immigration detention statutes for prolonged periods of time
10 pending completion of their removal proceedings without providing them with such
11 hearings.
12 103. In response, Petitioners bring this action on behalf of themselves and all other
13 persons similarly-situated, pursuant to Federal Rules of Civil Procedure 23(a) and
14 23(b)(2), or in the alternative, as a representative action pursuant to a procedure
15 analogous to that provided in Rules 23(a) and 23(b)(2). See Rodriguez v. Hayes, 578
16 F.3d 1032, 1047 (9th Cir. 2009) (allowing this case to proceed as a class action habeas
17 petition).
18 104. Petitioners represent a class of all people within the Central District of
19 California who 1) are or will be detained for longer than six months pursuant to the
20 general immigration detention statutes pending completion of removal proceedings,
21
22 10 This Court ordered the government to produce a "snapshot" list of all class 23 members on a particulate date, which the government produced for the date of April
21,2010. As of that day, there were 352 class members - people incarcerated in ICE 24 custody in the Central District who had been in ICE custody for at least 180 days, and 25 whose cases remained pending either before the immigration courts or before the
federal courts with a stay of removal in effect. The list also included a number of 26 people who were not class members because they were not incarcerated in detention 27 centers at all, but rather in juvenile facilities, and also two people who were not class
members because they were had final removal orders with no stay of removal in 28 effect.
23

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1 including judicial review, 2) are not detained pursuant to one of the national security 2 detention statutes at 8 U.S.C. 1226a and 8 U.S.C. 1531-37 and 3) have not been 3 afforded a hearing to determine whether their prolonged detention is justified. 4 105. The class includes people who were present in an ICE detention facility in the 5 Central District on or after the date on which the original complaint was filed as long 6 as they had been detained by ICE for more than six months at that time, even if they 7 are no longer in the Central District; it therefore includes people subject to the mass 8 transfer of detainees from the San Pedro Detention Facility in October 2007, as long 9 as those people remain in an ICE detention facility somewhere and their cases remain 10 pending. 11 106. The class excludes people who have a final order of removal and no stay of that 12 removal order, such that the government has legal authority to remove them. 13 107. The class excludes people who have not been in a detention facility while in 14 ICE custody; it therefore excludes minors living in foster-care institutions under ICE 15 custody. 16 108. Pursuant to this Court's directive that the parties propose sub-classes, 17 Petitioners propose that the Court also certify four sub-classes in this action, 18 corresponding to each of the general detention statutes. Petitioners propose to 19 represent a sub-class of class members detained under 8 U.S.C. 1225(b) represented 20 by Mr. Farah and Mr. Abdikadir, a sub-class of class members detained under 8 21 U.S.C. 1226(a) represented by Mr. Rodriguez and Mr. Perez Ruelas, a sub-class of 22 class members detained under 8 U.S.C. 1226(c) represented by Mr. Farias Cornejo, 23 and a sub-class of class members detained under 8 U.S.C. 1231(a) represented by Mr. 24 Amaya. 25 109. For each putative sub-class and each detention statute, Petitioners' counsel 26 estimates that there will be far more than forty other sub-class members in this District 27 who, like each of the Petitioners, have been detained for more than six months, are 28 detained under that particular general detention statute, and have not been afforded a
24

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1 constitutionally-adequate hearing to determine whether their prolonged detention is 2 justified. Indeed, there may well be more than forty members of each sub-class 3 detained in the Central District on any given single day. 4 110. 5 Ill. The proposed class and sub-classes meet the requirements of Fed. R. Civ. Pro. 6 23(a)(2). For the class as a whole, there are several common questions of law and fact 7 in the action. These include 1) whether the government has a policy or general 8 practice of detaining non-citizens in removal proceedings for longer than six months 9 under the general immigration detention statutes without providing an adequate 10 hearing to determine whether such prolonged detention is justified, 2) whether any 11 general immigration detention statute authorizes this detention policy or practice, and 12 3) whether this detention policy or practice violates the Due Process Clause. 13 Rodriguez, 578 F.3d at 1048-49 (finding common questions). 14 112. There are additional common questions of law that pertain to each subclass. 15 These include: for Subclass 1, whether 8 U.S.C. l225(b) authorizes the policy or 16 general practice of detaining non-citizens in removal proceedings for longer than six 17 months without providing a hearing where the government must establish that such 18 detention is justified; for Subclass 2, whether 8 U.S.C. §1226(a) authorizes this 19 detention policy or practice; for Subclass 3, whether 8 U.S.C. §l226(c) authorizes this 20 detention policy or practice; and for Subclass 4 whether §1231(a) authorizes this 21 detention policy or practice. 22 113. The claims of the named representative Petitioners are typical of the claims of 23 each proposed sub-class and of the class as a whole. Like all of the proposed class 24 members, the named Petitioners will have been detained, pursuant to the 25 government's policy and practice, for at least six months under the relevant general 26 immigration detention statutes, without having been afforded an adequate hearing 27 where the government has shown that their prolonged detention is justified. 28 Rodriguez, 578 F.3d at 1048-50.
25

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1 114. The named Petitioners will fairly and adequately represent the interests of all
2 members of the proposed class and sub-classes because they seek relief identical to
3 the relief sought by all class members, and because they have no interests adverse to
4 other class members. Moreover, the named Petitioners are represented by pro bono
5 counsel from the ACLU of Southern California, the ACLU Immigrants' Rights
6 Project, the Stanford Law School Immigrants' Rights Clinic, and the law firm of
7 Sidley Austin LLP. These organizations and the attorneys working for them have
8 extensive experience litigating on behalf of detained immigrants and broad experience
9 litigating class actions. Rodriguez, 578 F.3d at 1050.
10 115. Respondents have acted on grounds generally applicable to the class and to
11 each subclass through their policy and practice of detaining non-citizens in removal
12 proceedings for longer than six months under each of the general immigration
13 detention statutes without providing an adequate hearing where the government has
14 shown that their prolonged detention is justified, making class-wide declaratory and
15 injunctive relief appropriate.
16
LEGAL BACKGROUND
17 116. Petitioners argue that the government may not detain them for longer than six
18 months without showing at an adequate hearing that their prolonged detention is
19 justified. Peititioners make this argument on both statutory and constitutional
20 grounds.
21 117. With respect to the statute, Petitioners argue that because their removal
22 proceedings have exceeded an "expeditious" period, the general detention statutes
23 under which they are detained must be construed to require an individualized hearing
24 as to whether or not their detention is justified. Several decisions have already
25 construed these statutes to authorize only reasonable detention, and to require
26 individualized hearings to ensure that detention under them remains reasonable. See
27 generally Nadarajah v. Gonzales, 443 F.3d 1069, 1078-79 (9th Cir. 2006) (holding
28 that because 8 U.S.C. 1225(b) is one of "the general immigration detention statutes" it 26

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1 authorizes detention only for a "brief and reasonable" period of time necessary to 2 complete removal proceedings, presumptively six months); Tijani v. Willis, 430 F.3d 3 1241 (9th Cir. 2005) (construing 8 U.S.C. 1226(c) to require mandatory detention 4 only in cases of "expeditious" removal proceedings, and ordering a hearing to 5 determine whether detention is justified); Casas-Castrillon v. Dep't of Homeland Sec., 6 535 F.3d 942, 950 (9th Cir. 2008) (construing general detention statutes to require 7 bond hearings where government bears burden of proof to validate prolonged 8 detention). Because none of the general detention statutes explicitly authorize 9 prolonged detention without individualized hearings, they must all be construed to 10 require such hearings to ensure that detention remains reasonable. 11 118. In the alternative, Petitioners argue that their prolonged detention without an 12 adequate hearing to determine whether detention is justified violates the Due Process 13 Clause. "Freedom from imprisonment -- from government custody, detention, or 14 other forms of physical restraint -- lies at the heart of the liberty that [the Due Process] 15 Clause protects." Zadyydas, 533 U.S. at 690. For this reason, detention must always 16 be reasonable in relation to its purpose. Jackson v. Indiana, 406 U.S. 715, 738 (1972). 17 See also Demore, 538 U.S. at 527-29 (applying "reasonable relation" test). 18 119. In the immigration context, the primary purpose of detention is to effect the 19 alien's deportation in the event that removal proceedings are finally concluded in the 20 government's favor. Zadyydas, 533 U.S. at 699 (holding that the "statute's basic 21 purpose" is "to assure the alien's presence at the moment of removal"); Demore, 538 22 U.S. at 528 (upholding brief mandatory detention pending completion of removal 23 proceedings because it "serves the purpose of preventing deportable criminal aliens 24 from fleeing prior to or during their removal proceedings. "). 25 120. Because Petitioners and other class members suffer lengthy civil detention, they 26 must be afforded rigorous procedures to ensure that their detention remains justified. 27 Zadyydas, 533 U.S. at 690-92 (noting "serious" constitutional problem with prolonged 28 and indefinite civil detention unless "limited to specially dangerous individuals and
27

. . Case 2:07-cv-03239-TJH-RNB Document 8'5 Filed 09/08/10 Page 30 of 33 Page ID #:56,7
1 subject to strong procedural protections") (emphasis added); Casas-Castrillon, 535 2 F.3d at 950 (holding that "prolonged detention without adequate procedural 3 protections would raise serious constitutional concerns" and therefore that "due 4 process requires adequate procedural protections to ensure that the government's 5 asserted justification for physical confinement outweighs the individual's 6 constitutionally protected interest in avoiding physical restraint.") (citing Zadyydas). 7 121. With respect to what procedures are required for a hearing to be adequate to 8 justify prolonged detention for both statutory and constitutional purposes, the 9 government must at a minimum provide advance notice to the detainee and then 10 provide a transcribed hearing before an immigration judge where it bears the burden 11 to show by "clear and convincing" evidence that "no conditions of release" are 12 sufficient to protect the government's interests in preventing flight and danger. See 13 Cooper v. Oklahoma, 517 U.S. 348, 363 (1996) ("due process places a heightened 14 burden of proof on the State in civil proceedings in which the individual interests at 15 stake ... are both particularly important and more substantial than mere loss of 16 money.") (internal quotations omitted); Foucha v. Louisiana, 504 U.S. 71 (1992) 17 (requiring "clear and convincing evidence" for commitment of insanity acquittee 18 beyond length of permissible sentence); United States v. Salerno, 481 U.S. 739,750 19 (1987) (recognizing that the "no conditions of release" standard strikes appropriate 20 balance of interests). In addition, a showing of particularly serious danger is required 21 - given that detention may last for years -- and a detainee's criminal history alone is 22 insufficient to make that showing. Zadyydas, 533 U.S. at 690-91 ("we have upheld 23 preventive detention based on dangerousness only when limited to specially 24 dangerous individuals and subject to strong procedural protections"). Perhaps most 25 important, the hearing must require a heightened showing based on the length of 26 detention at issue. Where a detainee has been detained for a long period of time and 27 proceedings may not end in a brief time, the government must make more of a 28 showing to justify the detention at issue. United States v. Accetturo, 783 F.2d 382,
28

. .. Case 2:07-cv-03239-TJH-RNB Document 85 Filed 09/08/10 Page 31 of 33 Page ID #:568

1 388 (3d Cir. 1986) (stating in pre-trial detention context that "[i]n some cases, the

2 evidence admitted at the initial detention hearing, evaluated against the background of

3 the duration of pretrial incarceration and the causes of that duration, may no longer

4 justify detention."); Tijani v. Willis, 430 F. 3d 1241, 1242 (9th Cir. 2005) (ordering

5 bond hearing where government bore burden of proof in part because the "forseeable

6 process [for resolution of Petitioner's removal case] in this Court" was "a year of

7 more"). I I

8 122. In addition, any unrepresented detainee would have to be afforded counsel at

9 the government's expense at a hearing where prolonged detention was at stake. See

10 Lassiter v. Dept of Soc. Serv., 452 U.S. 18, 25 (1981) (noting that "it is the

11 defendant's interest in personal freedom, and not simply the special Sixth and

12 Fourteenth Amendments right to counsel in criminal cases, which triggers the right to

13 appointed counsel").

14 123. Absent the provision of such hearings, the government's detention of

15 Petitioners and other class members violates both the immigration statutes and the

16 Due Process Clause.

17

18

FIRST CAUSE OF ACTION

19

Violation of Immigration and Nationality Act and Regulations

20 124.

Petitioners reallege and incorporate by reference each and every

21 allegation contained in the preceding paragraphs as if set forth fully herein.

22 125.

Respondents' continued detention of Petitioners and other putative class

23 II This Court ordered hearings that largely comported with these requirements when it
24 granted preliminary injunctions for four individual prolonged detainees in litigation 25 closely related to this case. See, e.g., Order Granting Motion for Preliminary
Injunction, Martinez v. Gonzales, CV06-7609 (C.D. Cal. January 4,2007) (ordering 26 government to release detainee unless "the government shows by clear and convincing 27 evidence that he is a sufficient danger or risk of flight to justify his detention in light
of how long he has been detained already and the likelihood of his case being finally 28 resolved in favor of the government in the reasonably foreseeable future.").

29

. . '. Case 2:07-cv-03239-TJH-RNB Documen1t 8I5, ..-cFiled 09/08/10 Page 32 of 33 Page ID #:56,9

1 members under the general immigration detention statutes violates the Immigration

2 and Nationality Act, insofar as the statutes under which they are detained do not

3 authorize detention for a prolonged period of time absent an adequate hearing at

4 which the government shows that their detention remains justified.

5

6

SECOND CAUSE OF ACTION

7 Violation of Fifth Amendment Due Process (Right to a Constitutionally Adequate

8

Custody Hearing)

9 126.

Petitioners reallege and incorporate by reference each and every

10 allegation contained in the preceding paragraphs as if set forth fully herein.

11 127.

Respondents' continued detention of Petitioners and other class members

12 without an adequate hearing where the government shows that their prolonged

13 detention remains justified violates the right to be free of prolonged non-criminal

14 detention without adequate justification and sufficient procedural safeguards, as

15 guaranteed by the Due Process Clause of the Fifth Amendment to the United States

16 Constitution.

17 PRAYER FOR RELIEF
18 WHEREFORE, Petitioners respectfully request that the Court grant the
19 following relief:

20 a.

Assume jurisdiction of this matter;

21 b.

Certify a class and sub-classes as appropriate under Fed. R. Civ. Pro. 23

22 (or other analogous procedures) consisting of all people within the Central District of

23 California who 1) are or will be detained for longer than six months pursuant to the

24 general immigration detention statutes pending completion of removal proceedings,

25 including judicial review, 2) are not detained pursuant to one of the national security

26 detention statutes at 8 U.S.C. 1226a and 8 U.S.C. 1531-37 and 3) have not been

27 afforded a hearing to determine whether their prolonged detention is justified;

28 c.

Appoint Petitioners Rodriguez and Perez Ruelas, as representatives of a

30

. . , Case 2:07-cv-03239-TJH-RNB Document 85 Filed 09/08/10 Page 33 of 33 Page ID #:57';0

1 sub-class of class members detained under 8 U.S.C. 1226(a); Petitioners Farah

2 andAbdikadir as representatives of a sub-class of class members detained under 8

3 U.S.C. 1225(b); Petitioner Farias Cornejo as the representative of a sub-class of class

4 members detained under 8 U.S.C. 1226(c); and Petitioner Amaya as the

5 representative of a sub-class of class members detained under 8 U.S.C. 1231.

6 d.

Appoint Petitioners' Counsel as Counsel for the Class and each subclass;

7 e.

Order Respondents to provide, after giving notice, individual hearings

8 before an immigration judge for Petitioners and each member of the class, at which

9 Respondents will bear the burden to prove by clear and convincing evidence that no

10 reasonable conditions will ensure the detainee's presence in the event of removal and

11 protect the community from serious danger, despite the prolonged length of detention

12 at issue; 13 f.

Declare that Respondents' failure to provide Petitioners and the members

14 of the class with adequate hearings violates the Immigration and Nationality Act and

15 the Due Process Clause of the Fifth Amendment;

16 g.

Enjoin Respondents from failing to provide Petitioner and each member

17 of the Class, upon notice, with adequate hearings before an immigration judge (as

18 specified above in subsection (e) of this Prayer);

19 h.

Grant Petitioners reasonable attorneys' fees, costs, and other

20 disbursements pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412;

21 1.

Grant such other relief as the Court deems just and equitable.

22

Respectfully submitted,

23 24 25 Dated: September 7, 2010
26

ACLU OF SOUTHERN CALIFORNIA
B~oY;/lf:t{z Counsel for Petitioners

27

28

31

 
 Case 2:07-cv-03239-TJH-RNB Document 111 Filed 10/22/10 Page 1 of 34 Page ID #:1044

1 AHILAN T. ARULANANTHAM (SBN 237841) Email: aarulanantham@aclu-sc.org
2 JENNIFER STARK (SBN 267062) Email: jstark@aclu-sc.org
3 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street
4 Los Angeles, CA 90017 Tel: (213) 977-5211
5 Fax: (213) 977-5297

6 Attorneys For Petitioners (Additional counsel listed on following page)
7

8

UNITED STATES DISTRICT COURT

9

FOR THE CENTRAL DISTRICT OF CALIFORNIA

10

WESTERN DIVISION

11 ALEJANDRO RODRIGUEZ,

) Case No. CV 07-3239-TJH (RNBx)

12

ABDIRIZAK ADEN FARAH, YUSSUF ) ABDIKADIR, ABEL PEREZ RUELAS, )

THIRD AMENDED COMPLAINT

13 JOSE FARIAS CORNEJO, ANGEL ARMANDO AYALA, for themselves

) )

Honorable Terry J. Hatter

14 and on behalf of a class of similarly- )

situated individuals,

)

15

)

Petitioners,

)

16

)

v.

)

17

)

ERIC HOLDER, United States Attorney )

18 General; JANET NAPOLITANO,

)

Secretary, Homeland Security;

)

19 THOMAS G. SNOW, Acting Director, )

Executive Office for Immigration

)

20 Review; TIMOTHY ROBBINS, Field )

Office Director, Los Angeles District, )

21 Immigration and Customs Enforcement; )

WESLEY LEE, Officer-in-Charge, Mira )

22 Loma Detention Center; et al.; RODNEY)

PENNER, Captain, Mira Loma

)

23 Detention Center; SANDRA

)

HUTCHENS, Sheriff of Orange County; )

24 OFFICER NGUYEN, Officer-in-Charge, )

Theo Lacy Facility; CAPTAIN DAVIS )

25 NIGHSWONGER, Commander, Theo )

Lacy Facility; CAPTAIN MIKE

)

26 KREUGER, Operations Manager, James )

A. Musick Facility; ARTHUR

)

27 EDWARDS, Officer-in-Charge, Santa )

Ana City Jail; RUSSELL DAVIS, Jail )

28 Administrator, Santa Ana City Jail,

)

)

Respondents.

)

Case 2:07-cv-03239-TJH-RNB Document 111 Filed 10/22/10 Page 2 of 34 Page ID #:1045
1 Additional Counsel:
2 JUDY RABINOVITZ AMERICAN CIVIL LIBERTIES FOUNDATION
3 IMMIGRANTS' RIQHTS PROJECT 125 Broad Street, 18 Floor
4 New York, NY 10004 Telephone: (212) 549-2618
5 FacsImile: (212) 549-2654
6 JAYASHRI SRIKANTIAH (SBN 189566) STANFORD LAW SCHOOL
7 IMMIGRANTS' RIGHTS CLINIC Crown Quadrangle
8 559 Natlian Abbott Way Stanford, CA 94305-8610
9 Telephone: (650) 724-2442 FacsImile: (650) 723-4426
10 STEVEN A. ELLIS (SBN 171742)
11 WILLIAM TRAN (SBN 245104)· BRIAN K. WASHINGTON (SBN 248960)
12 SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000
13 Los Angeles, California 90013-1010 Telephone: (213) 896-6000
14 FacsImile: (213) 896-6600
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Case 2:07-cv-03239-TJH-RNB Document 111 Filed 10/22/10 Page 3 of 34 Page ID #:1046

1 2 1.

JURISDICTION AND VENUE Petitioners Alejandro Rodriguez, Abdirizak Farah, Yussuf Abdikadir, Jose

3 Farias Cornejo, Abel Perez Ruelas, and Angel Ayala are non-citizens who have been

4 subjected to prolonged incarceration at the hands of the Immigration and Customs

5 Enforcement division of the Department of Homeland Security ("ICE"). Each of

6 them has been incarcerated for more than six months while their immigration

7 proceedings have been on-going without a hearing where the government has had to

8 justify their prolonged detention. They challenge their prolonged detention without

9 adequate process on statutory and constitutional grounds, on behalf of themselves and

loa class of similarly-situated detainees.

11 2. This Court has subject matter jurisdiction over these claims pursuant to 28

12 U.S.C. 2241 (habeas corpus), 28 U.S.C. 1651 (All Writs Act), and the Suspension

13 Clause of Article I of the U.S. Constitution. INS v. St. Cyr, 533 U.S. 289, 304 (2001);

14 Demore v. Kim, 538 U.S. 510, 516-17 (2003). This Court also has jurisdiction to hear

15 this case under 28 U.S.C. 1331, which confers jurisdiction to consider federal

16 questions. Walters v. Reno, 145 F.3d 1032, 1052 (9th Cir. 1998); cf. Wilkinson v.

17 Dotson, 544 U.S. 74, 82 (2005) (challenges to parole release procedures cognizable

18 under Section 1983).1

19 3. This Court may grant relief under 28 U.S.C. 1331 (federal question), 28 U.S.C.

20 1651 (All Writs Act), 28 U.S.C. 2241 and 2243 (habeas corpus), and 28 U.S.C. 2201-

21 02 (declaratory relief).

22 4. Venue is proper in the Central District of California pursuant to 28 U.S.C.

23 2241 (d) because Petitioners and all other class members are incarcerated at

24 Immigration and Customs Enforcement (ICE) detention facilities within this District.

25
26 1This action is both a complaint for declaratory and injunctive reliefunder 28 U.S.C. 1331 and a petition for writ of habeas corpus under 28 U.S.C. 2241, although for ease
27 of reference the complaint refers to "Petitioners" and "Respondents" rather than 28 "Plaintiffs" and "Defendants."

1

Case 2:07-cv-03239-TJH-RNB Document 111 Filed 10/22/10 Page 4 of 34 Page ID #:1047

1 Venue is proper pursuant to 28 U.S.C. l39l(b) because a substantial part of the events

2 giving rise to these claims occurred in this District.

3

INTRODUCTION

4 5. Petitioner Alejandro Rodriguez is a citizen of Mexico who came to the United

5 States at the age of one. Prior to the filing of the original complaint in this case, he

6 was detained for over three years without a hearing concerning whether his prolonged

7 detention was justified. During that time, the government refused even to consider

8 him for release while he litigated his removal case, despite the fact that it presented a

9 complex and novel question of law explicitly left open by the Supreme Court and the

10 Ninth Circuit.

11 6. The government released Mr. Rodriguez shortly after he filed a motion for class

12 certification in this case, but continued to subject him to serious restraints on his

13 liberty without allowing him to challenge them in a detention hearing. It then argued

14 that his case was moot. The Ninth Circuit disagreed, rejected the government's other

15 objections, and found class certification warranted. Rodriguez v. Hayes, 578 F.3d

16 1032 (9th Cir. 2009).

17 7. This Court subsequently certified the class and directed the formation of sub-

18 classes. By this complaint, five other detainees now join Mr. Rodriguez as class

19 representatives in this action. Each of them has been detained for more than six

20 months while their removal cases remain pending, yet none of them has been

21 afforded a hearing where the government has had to justify their prolonged detention

22 under sufficiently-rigorous procedures.

23 8. These detainees are far from alone. On any given day, there are at least

24 approximately 350 people, ifnot more, in immigration prisons throughout the Central

25 District who have been incarcerated for more than six months - many of them for

26

27

28 2

Case 2:07-cv-03239-TJH-RNB Document 111 Filed 10/22/10 Page 5 of 34 Page ID #:1048
1 years - while their cases remain pending.2
2 9. None of these people have received a hearing to determine whether their
3 prolonged detention is warranted, and the vast majority have not received any hearing 4 at all.3 Thus, the government routinely incarcerates people for months or years
5 without demonstrating why their extended detention is necessary either to secure
6 their presence at the time of removal or to protect the public safety -- a dubious
7 concern given that many class members have no criminal history, and even those who
8 have been convicted have necessarily finished serving their sentences before their
9 transfer to immigration detention.
10 10. Petitioners, like all the detainees they seek to represent, are purportedly
11 detained under one of four general immigration detention statutes that govern the
12 detention of most non-citizens whom the government is trying to remove. See 8
13 U.S.C. 1225(b) (authorizing detention of aliens seeking admission); 8 U.S.C. 1226(a)
14 (authorizing detention of aliens pending a determination of removability); 8 U.S.C.
15 1226(c) (authorizing "mandatory" detention, without hearings, of certain aliens who,
16
17 2 This Court ordered the government to provide a list of detainees to Petitioner. That 18 list showed that over 350 people were detained in immigration prisons throughout the
Central District as of April 21, 2010. 19 20 3 Petitioners refer interchangeably throughout this complaint to a hearing to determine
whether "prolonged detention" is justified, a "constitutionally-adequate" hearing, and 21 an "adequate" hearing to justify prolonged detention. See Rodriguez, 578 F.3d at 22 1039 (noting that "Petitioner's requested relief includes ... providing all members of
the class constitutionally-adequate individual hearings before an immigration judge"). 23 A hearing that is adequate to justify prolonged detention would include, at a 24 minimum, notice to detainees of their right to the hearing, an adversarial, transcribed,
in-person hearing before an immigration judge or other impartial adjudicator, counsel 25 for detainees who are unrepresented at that hearing, and a substantive standard 26 requiring the government to show by clear and convincing evidence that no set of
release conditions could reasonably assure the detainee's presence in the event of 27 removal or protect the community from serious danger, taking into account the length 28 of detention at issue.
3

Case 2:07-cv-03239-TJH-RNB Document 111 Filed 10/22/10 Page 6 of 34 Page ID #:1049
1 inter alia, have been convicted of specified triggering offenses); 8 U.S.C. 123l(a) 2 (authorizing detention of aliens with final orders of removal during and after the 3 removal period). In keeping with the Ninth Circuit's terminology, these four statutes 4 are referred to herein as the "general immigration detention statutes." See generally 5 Nadaraiah v. Gonzales, 443 F.3d 1069, 1078, 1080-81 (9th Cir. 2006) (contrasting 6 general immigration detention statutes that do not explicitly authorize prolonged 7 detention with specific statutes at 8 U.S.C. 1226a and 8 U.S.C. 1531-37 that 8 authorize prolonged detention on, inter alia, national security grounds). 9 11. Petitioners contend that because none of these general immigration detention 10 statutes explicitly authorize prolonged detention, they cannot be interpreted to 11 authorize detention of longer than six months absent a hearing where the government 12 shows, under a suitably-rigorous standard, that further prolonged detention is 13 justified. See generally Casas-Castrillon v. Dep't of Homeland Sec., 535 F.3d 942, 14 950 (9th Cir. 2008) (construing general detention statutes to require bond hearings 15 where government bears burden of proof because "[w]e conclude that prolonged 16 detention without adequate procedural protections would raise serious constitutional 17 concerns"). Moreover, if these statutes did authorize prolonged detention they would 18 violate the Due Process Clause, at least absent substantially greater procedural 19 constraints. See generally Zadyydas v. Davis, 533 U.S. 678, 690-92 (2001) (finding 20 "severe and obvious" problems with prolonged and indefinite detention under limited 21 administrative procedures). 22 12. Respondents, in contrast, maintain a policy or general practice - which 23 Petitioners contend is unlawful - of detaining people for prolonged time periods 24 without providing them adequate hearings. Pursuant to this unlawful policy or 25 general practice, Respondents have incarcerated the Petitioners and each of the class 26 members they represent pursuant to one of the general immigration detention statutes 27 for more than six months. Pursuant to Respondents' policy or general practice, 28 during that time neither Petitioners nor any other similarly-situated person have had a
4

Case 2:07-cv-03239-TJH-RNB Document 111 Filed 10/22/10 Page 7 of 34 Page ID #:1050
1 hearing where the government has had to show that their prolonged detention remains
2 justified.
3 13. Respondents' general policies and practices of prolonged detention without
4 hearings are in violation of the statutory and constitutional rights of the Petitioners
5 and other class members. To remedy this on-going violation of the law, Petitioners
6 bring this action seeking declaratory and injunctive relief on behalf of themselves and
7 a class of similarly-situated persons.
8 PARTIES
9 14. Petitioner Alejandro Rodriguez is a citizen of Mexico. He was detained for
10 over three years while litigating his removal case prior to the filing of the original 11 complaint in this case. He has never been afforded a hearing to determine whether
12 his prolonged detention is justified. He is currently residing in Los Angeles under 13 extremely restrictive release conditions while his removal proceedings remain 14 pending. 15
15. Petitioner Abdirizak Aden Farah is a Somalian refugee who has been 16
incarcerated at Mira Lorna Detention Center for over eight months without a hearing 17
to determine that his detention is warranted. Indeed, he has received no explanation 18
of any kind as to why he cannot be released pending completion of his removal 19
hearings, despite having a close family friend in Minnesota willing to house him and 20
no criminal history of any kind. 21
16. Petitioner Yussuf Abdikadir is another Somalian refugee who has been
22
incarcerated by ICE for approximately six months without a hearing to determine 23
whether his detention is warranted. He too has received no explanation of any kind 24
as to why he cannot be released pending completion of his removal proceedings, 25
despite having a sponsor in San Diego willing to house him and no criminal history
26
of any kind. 27
17. Petitioner Abel Perez Ruelas is a Mexican national who entered the United
28
5

Case 2:07-cv-03239-TJH-RNB Document 111 Filed 10/22/10 Page 8 of 34 Page ID #:1051
1 States on a visitor's visa approximately eight years ago and is now married to a U.S. 2 citizen. He has been incarcerated for 16 months pending completion his removal 3 proceedings. He received a bond hearing where he bore the burden to prove that he 4 was not a danger or flight risk, but the judge denied bond, and later set it at an 5 amount he could not pay. Although he is without doubt eligible to adjust status, he 6 remains detained, even though the government has never had to justify his prolonged 7 detention. 8 18. Petitioner Jose Farias Cornejo is also a Mexican national, but is a lawful 9 permanent resident of this country, where he has lived since before his first birthday. 10 He has been convicted of relatively minor offenses, the most serious of which is 11 possession of a controlled substance, for which he was sentenced to 180 days in jail. 12 However, he has spent more than twice that amount of time in immigration prison 13 while awaiting a final decision in his immigration case. Although the government 14 does not dispute that he is eligible for cancellation of removal and has stated in 15 immigration court that it does not intend to oppose his application, he remains in 16 detention awaiting a final decision in his case without having received a detention 17 hearing of any kind. As the government interprets the immigration laws, his drug 18 conviction renders him ineligible even to be considered for release from detention, 19 even though it does not bar him from obtaining relief to remain. 20 19. Petitioner Angel Armando Ayala is a citizen ofEl Salvador who has lived in the 21 United States since the age of eleven. He has never received a criminal sentence of 22 longer than 90 days, but has been incarcerated by immigration authorities for over 18 23 months while litigating his removal case. During that time he has never seen an 24 immigration judge, let alone been afforded an adequate bond hearing in light of his 25 prolonged detention. He is prima facie eligible for relief allowing him to become a 26 lawful permanent resident, but remains detained while the Ninth Circuit considers 27 whether his prior lawyer's failure to advise him as to the filing deadline constitutes 28 ineffective assistance of counsel, such that his failure to meet it does not bar him
6

Case 2:07-cv-03239-TJH-RNB Document 111 Filed 10/22/10 Page 9 of 34 Page ID #:1052
1 from obtaining relief for which he is otherwise-eligible. 2 20. Respondent Eric Holder is the Attorney General of the United States and the 3 head of the Department of Justice, which encompasses the Board of Immigration 4 Appeals ("BIA") and immigration judges as a subunit - the Executive Office of 5 Immigration Review. Mr. Holder shares responsibility for implementation and 6 enforcement of the immigration laws along with Respondent Napolitano. Mr. Holder 7 is a legal custodian of Petitioners. Mr. Holder is sued in his official capacity. 8 21. Respondent Janet Napolitano is the Secretary of Homeland Security and heads 9 the Department of Homeland Security, the arm of the federal government responsible 10 for enforcement of immigration laws. Ms. Napolitano is the ultimate legal custodian 11 of Petitioners. Ms. Napolitano is sued in her official capacity. 12 22. Defendant Thomas G. Snow is the Acting Director for the Executive Office for 13 Immigration Review ("EOIR"), which is the federal agency that operates the 14 immigration courts. Mr. Snow is responsible for the supervision of the Deputy 15 Director, the Chairman of the BIA, the Chief Immigration Judge, the Chief 16 Administrative Hearing Officer, and all agency personnel in the execution of their 17 duties. Mr. Snow is sued in his official capacity. 18 23. Respondent Timothy Robbins is the Field Office Director for the Los Angeles 19 District of ICE. In his official capacity, Mr. Robbins is authorized to release 20 Petitioners and has legal custody of him. He is sued in his official capacity. 21 24. Respondent Lee Baca is the Sheriff of Los Angeles County, and therefore the 22 officer responsible for the operation of the Mira Lorna Detention Center in Lancaster, 23 California. Mira Lorna's website acknowledges that it houses immigration detainees. 24 However, it states that "[w]e function as a regular County jail with the exception that 25 the individuals we house are identified as detainees." Sheriff Baca is a legal 26 custodian of people detained at that facility, and is sued in his official capacity. 27 25. Respondent Wesley Lee is the Officer-in-Charge at the Mira Lorna Detention 28 Center, and therefore the highest-ranking ICE officer at the facility. He is a legal
7

Case 2:07-cv-03239-TJH-RNB Document 111 Filed 10/22/10 Page 10 of 34 Page ID #:1053
1 custodian of a number of class members. Mr. Lee is sued in his official capacity. 2 26. Respondent Rodney Penner is the Captain of the Mira Lorna Detention Center, 3 and the highest ranking Sheriffs Department official at the facility. Captain Penner 4 is a legal custodian of a number of class members, and is sued in his official capacity. 5 27. Respondent Sandra Hutchens is the Sheriff of Orange County, and therefore the 6 officer responsible for the operation of the Theo Lacy Facility and the James Musick 7 facility, both of which incarcerate class members in Orange County. She is a legal 8 custodian of people detained at those facilities, and is sued in her official capacity. 9 28. Respondent Officer Nguyen is the Officer-in-Charge at the Theo Lacy facility, 10 and therefore the highest-ranking ICE officer at the facility. He is a legal custodian 11 ofMr. Ayala and other class members. Mr. Nguyen is sued in his official capacity. 12 29. Respondent Captain Davis Nighswonger is the commander of the Theo Lacy 13 Facility, which is, according to its own website, the largest "correctional institution" 14 in Orange County. Nonetheless, Theo Lacy incarcerates a number of immigration 15 detainees, including Angel Ayala. Captain Nighswonger is a legal custodian ofMr. 16 Ayala and other class members, and is sued in his official capacity. 17 30. Respondent Captain Mike Kreuger manages the operations of the James A. 18 Musick Facility, another prison in Orange County. According to its website, the 19 Musick facility incarcerates "pre-trial and sentenced" inmates. Nonetheless, upon 20 information and belief, it also houses class members, none of whom are criminal 21 detainees. Mr. Kreuger is a legal custodian of those class members, and is sued in his 22 official capacity. 23 31. Respondent Arthur Edwards is the Officer-in-Charge at the Santa Ana City Jail 24 and therefore the highest-ranking ICE officer at the facility. He is a legal custodian 25 of a number of class members. Mr. Edwards is sued in his official capacity. 26 32. Respondent Russell Davis is the Jail Administrator of the Santa Ana City Jail, 27 whose stated goal is to fulfill the "incarceration needs" of the Santa Ana Police 28 Department. Nonetheless, the Santa Ana Jail incarcerates several dozen class
8

Case 2:07-cv-03239-TJH-RNB Document 111 Filed 10/22/10 Page 11 of 34 Page ID #:1054
1 members on any given day. Therefore, Mr. Davis is a legal custodian of a number of
2 class members, and is sued in his official capacity.4
3 FACTS AND PROCEDURAL HISTORY
4 Alejandro Rodriguez
5 33. Petitioner Alejandro Rodriguez was detained for over three years while he
6 challenged the government's efforts to deport him to Mexico, a country where he has
7 not lived since he was a baby.
8 34. Mr. Rodriguez came to this country in September 1979, when was one year old.
9 He became a lawful permanent resident on June 4, 1987, when he was nine years
10 old.5 11
35. On or about July 29, 1998, Mr. Rodriguez pled guilty to Unlawful Driving or 12
Taking ofa Vehicle under section 10851(A) of the California Vehicle Code (CVC). 13
For this crime he was sentenced to two years. Five years later, on or about October 14
21, 2003, he pled no contest and was convicted of Possession of a Controlled 15
Substance under California Health and Safety Code section 11377(A), for which he 16
received formal probation of 5 years under the conditions of California Prop 36. He 17
was transferred to DHS custody after his arrest, on April 10, 2004. He was detained 18
for over three years after that transfer, until the government released him shortly after 19
20 4 The government has taken conflicting positions in detention litigation concerning
21 who the proper Respondent should be in habeas petitions challenging immigration 22 detention. Petitioners have sued every official who could constitute an appropriate
respondent under the different theories advanced by the government, as well as the 23 officials who constitute the proper defendants for a complaint under Section 1331.
24 5Mr. Rodriguez narrowly missed becoming a citizen due to events beyond his control.
25 He would have gained automatic citizenship, through his father, ifhis parents had 26 legally separated prior to his 18th birthday, or ifhe had been under the age of 18 at the
time of the enactment of the Child Citizenship Protection Act of 2000. However, his 27 parents formally separated shortly after he turned 18, and he was 23 by the time the 28 Act passed. See 8 U.S.C. 1431.
9

Case 2:07-cv-03239-TJH-RNB Document 111 Filed 10/22/10 Page 12 of 34 Page ID #:1055
1 the filing of the class certification motion in this case.
2 36. The government charged Mr. Rodriguez with being removable based on his
3 drug offense on April 15,2004. At his removal hearing, Mr. Rodriguez contested
4 that his conviction rendered him removable, and argued in the alternative that he was 5 eligible for relief from removal.6
6 37. The government received a continuance to alter the charging documents in his
7 case, after which it charged Mr. Rodriguez with being deportable on an additional
8 ground based on his 1998 conviction for theft. Subsequently, on July 21, 2004, an
9 immigration judge ordered him removed, holding that both his dnlg offense and his
10 theft offense rendered him removable. The Judge held that the drug offense was a
11 controlled substance offense triggering removal and that the theft conviction was an 12 aggravated felony, triggering mandatory removal.7 The immigration judge ordered
13 him deported to Mexico. Mr. Rodriguez appealed that decision to the BIA.
14 38. On December 21,2004, the Board reversed the Judge's decision that the drug
15 possession conviction rendered Mr. Rodriguez removable, but upheld the decision
16
17 6An ICE officer initially deemed him eligible for release on bond, and set the bond at 18 $15,000. However, Mr. Rodriguez was unable to afford the bond in that amount, and
an immigration judge denied his request to lower the bond amount. Shortly after the 19 BIA decided his case in 2004, the government revoked that bond order and ordered 20 him detained without bond under the mandatory detention provision codified at 8
U.S.C. 1226(c). 21 22 7Although not charged in the immigration charging document, the government also
presented evidence from court records that, on or about October 24,2003, a man using 23 the name Alejandro Rodriguez (who also used another name as an alias) pled guilty to 24 California Health and Safety Code section 11550(a), Under the Influence of a
Controlled Substance, and was sentenced to 120 days in jail, which he served during 25 the same time that Mr. Rodriguez was released and reporting to the court for his 26 conviction of October 21, 2003. The date of conviction makes it highly unlikely that
Mr. Rodriguez was in fact convicted of this offense. Nonetheless, the IJ ruled that this 27 conviction constituted a second drug offense, rendering Petitioner removable on the 28 basis of the drug convictions.
10

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1 that his theft conviction was an aggravated felony. 2 39. On December 28,2004, Mr. Rodriguez timely petitioned for review of the 3 Board's decision to the Ninth Circuit, arguing inter alia that his crime was not an 4 aggravated felony as defined by the Immigration and Nationality Act. Mr. Rodriguez 5 then sought a stay of removal, which the government opposed. Thereafter, the Ninth 6 Circuit granted his request for a stay of removal, and therefore necessarily found that 7 his case presents substantial legal claims. See Maharaj v. Ashcroft, 295 F.3d 963, 8 966 (9th Cir. 2002). 9 40. While Mr. Rodriguez's case was pending at the Ninth Circuit, that court decided 10 another case holding that Mr. Rodriguez's theft conviction was not an aggravated 11 felony. The government then moved to hold his case in abeyance while it sought en 12 banc review of that decision. The Ninth Circuit granted the motion, even though he 13 had already been detained for 15 months at that time. After en banc review failed, 14 the government sought Supreme Court review in the other case, and again requested 15 that Mr. Rodriguez's case be held. After the Supreme Court granted cert, his case 16 was held still further. In the end, his case was held in abeyance for over two years, 17 but none of the decisions for which it was held established that he was subject to 18 mandatory removal, as the immigration courts had found. 19 41. Eventually, the government largely conceded that Mr. Rodriguez's convictions 20 did not subject him to mandatory removal, and it agreed to remand his case to the 21 immigration courts on this basis. His case is now back before an immigration judge, 22 who will consider his (exceedingly strong) application for cancellation of removal in 23 January 2011. 24 42. During the three years ofMr. Rodriguez's detention, the government never held 25 a hearing as to whether his prolonged detention is justified. In fact, the only process 26 Mr. Rodriguez received with respect to his detention was what the government calls 27 "File Custody Reviews." The first of these occurred on March 10,2005, when an 28 ICE agent presumably read through his file and issued a "Decision to Continue
11

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1 Detention." No ICE official interviewed Mr. Rodriguez, let alone held a hearing, 2 prior to making this decision. Instead, ICE merely gave him a questionnaire to fill 3 out, asking for information regarding family members, employment experience, and 4 any outstanding probation requirements. Although Mr. Rodriguez documented his 5 work as a dental assistant and his extensive family ties, including his U.S. citizen 6 father and sister, and his lawful permanent resident mother and brother, ICE denied 7 his request for release, stating simply that he would remain detained until the Ninth 8 Circuit rendered its decision. The notice offered no further explanation for the 9 decision to continue detention, made no mention of how long Mr. Rodriguez had 10 been detained (eleven months at that time), and offered no suggestions as to what 11 steps he might take to effect a different outcome in any future decisions. 12 43. In September 2005, ICE conducted another file custody review, which it 13 apparently denied for similar reasons, and in March 2006 the process was repeated 14 again. In each of these instances, the government did not even provide Mr. 15 Rodriguez with a written decision as to why he would remain incarcerated for many 16 more months. In March 2007 the government chose to continue Mr. Rodriguez's 17 detention again. At the time of that last custody decision he had been detained for 18 nearly three years, yet the decision made no mention of this fact. Instead, the 19 decision asserted that continued detention was justified because the Ninth Circuit 20 would decide his case soon, which was entirely incorrect. 21 44. Shortly after the original class complaint in this case was filed, the government 22 released Mr. Rodriguez from detention, but continued to subject him to severe 23 restraints on his liberty which remain in effect, including a requirement that he abide 24 by a strict curfew and wear an electronic monitoring device at all times. The 25 government has continued to require that he abide by these restrictions, and has never 26 afforded him a hearing before an immigration judge to determine if they are 27 necessary to ensure his appearance at his final removal hearing, where he will likely 28 be granted cancellation of removal.
12

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1 Abdirizak Aden Farah 2 45. Abdirizak Aden Farah is a Somali refugee who has been detained for over eight 3 months at the Mira Lorna facility without any kind of hearing to determine whether 4 his detention is justified. 5 46. Mr. Farah was born on May 5, 1987 in Kismayo, Somalia. His family lived in 6 Mogadishu for the early part of his childhood. Thousands of refugees have fled 7 Somalia since the country's civil war erupted approximately twenty years ago. 8 Today, there is no functioning government in most of Somalia, and the country exists 9 in a state of constant civil war and virtual anarchy. The United Nations High 10 Commission for Refugees issued guidelines in May 2010 largely advising against the 11 return of anyone from central or southern Somalia, including even asylum seekers 12 whose claims had been rejected. With respect to the capital of Mogadishu (where 13 Mr. Farah lived prior to suffering persecution), a Human Rights Watch researcher has 14 stated that "Mogadishu is one of the world's most dangerous places ... Returning 15 people there is not just risky; it's a potential death sentence." 16 47. Mr. Farah first faced persecution in Somalia as a child, when his family was 17 forced to flee Mogadishu because they were members of the minority Marehan clan 18 who faced danger from members of the Hawiye, a powerful majority clan in Somalia. 19 Eventually, the family was able to settle in Kismayo, a city in Somalia where the 20 Hawiye were not powerful. Several years later, his father was shot and killed by 21 members of a Hawiye sub-clan when he returned briefly to Mogadishu to try to sell 22 the family home. 23 48. Mr. Farah fled Somalia in April 2009 in order to escape the al-Shabaab, a 24 militant Islamic organization that is trying to take over Somalia. A1-Shabaab militants 25 shot and killed his brother Mohamed because he worked as a driver for the Somali 26 Transitional Federal Government (TFG) in the summer of 2007. These same militants 27 nearly killed Mr. Farah in the same attack by slashing his wrist with a lmife. 28 Afterward, al-Shabaab members repeatedly accused him of working for the TFG and
13

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1 finally threatened to kill him ifhe did not join them. 2 49. After the last of these threats, Mr. Farah's uncle sent money for him to flee. 3 With the assistance of several people, he arrived by a circuitous route at the southern 4 border of the United States, where he presented himself at the border and requested 5 asylum on or about December 31, 2009. An asylum officer found his claim credible, 6 and referred him for a full asylum hearing before an immigration judge. 7 50. Mr. Farah has had several hearings in his immigration case, the first of which 8 took place in March 2010. At several of these, the immigration judge continued his 9 hearing because he did not have a lawyer, while others were cancelled because the 10 judge or the translator were not present. His next hearing is scheduled for late 11 October 2010. 12 51. Mr. Farah has applied for release on parole under 8 C.F.R. 212(d)(5)(A). Under 13 these procedures, the decision whether or not to release him is made by a single 14 officer, with no appeal process, and without providing a hearing of any kind. An ICE 15 officer denied him release without meaningful explanation. 16 52. Mr. Farah's wife and baby daughter remain in Somalia. He has been unable to 17 establish any contact with them because of his detention.
18 Yussuf Abdikadir 19 53. Yussuf Abdikadir is also a Somalian refugee. He has been detained by 20 immigration authorities since early March 2010, and also has not received a detention 21 hearing of any kind. 22 54. Mr. Abdikadir was born on October 5, 1980.8 He lived with his family23 including his parents and five siblings -- as a child in Mogadishu. He is also a 24 member of a minority clan in Somalia. 25 55. In 1991, as the Somali political structure disintegrated, a militia associated with
26 a dominant clan, the Hawiye, attacked Mr. Abdikadir's family. They killed his two
27 28 8 Yussufis his given name, while Abdikadir is his father's given name.
14

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1 older brothers, his father, and his grandmother. They also severely mistreated other 2 members of the family, and raped his mother. 3 56. Mr. Abdikadir and his surviving family members then fled to Kenya, where 4 they lived in various refugee camps for most of the next two decades. He married 5 Shulai Hussein, also a Somalian refugee, while in the camps, and the couple had 6 three children. (Ms. Hussein also has a son from a prior relationship, who is now Mr. 7 Abdikadir's step-son). 8 57. Life in the refugee camps was very hard for Mr. Abdikadir and his family. 9 Kenya granted them no permanent status, and as a result they were forced to live in 10 the camps and denied the right to work. At the same time, the Kenyan government 11 and international agencies failed to provide sufficient food for the refugees. He and 12 his family would have to wait for hours during the heat of the day to obtain their 13 small food rations, and often were mistreated by the Kenyan authorities while 14 waiting. Mr. Abdikadir occasionally worked illegally in order to supplement his 15 family's meager provisions, but Kenyan authorities arrested and punished him for 16 doing so. The Kenyan authorities also did little if anything to stop the bandits who 17 would raid the camps at night, raping camp residents and pillaging their belongings. 18 58. After life in the camps became too difficult, Mr. Abdikadir's mother managed 19 to sell some land the family owned in Somalia, and used these proceeds to procure 20 funds to allow her son to escape. Unable to return to Somalia or survive further life 21 in the Kenyan refugee camps, Mr. Abdikadir fled. He traveled a circuitous route in 22 search of a country with refugee protections, and ultimately arrived at the southern 23 border of the United States seeking asylum. 24 59. At the border crossing from Tijuana he presented a birth certificate and applied 25 for asylum, entering ICE detention in March 2010. He was sent to Mira Lorna 26 shortly afterward, and passed his credible fear interview several weeks later, in 27 approximately April 2010. 28 60. Mr. Abdikadir has been before an immigration judge several times since then,
15

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1 but has yet to even submit an application for asylum, because he was unable to find a 2 lawyer to represent him and speaks virtually no English. 3 61. Mr. Abdikadir has also applied for release on parole under 8 C.F .R. 4 2l2(d)(5)(A). As with Mr. Farah, the decision whether or not to release Mr. 5 Abdikadir is made by a single officer, with no appeal process, and without a hearing 6 of any kind. Mr. Abdikadir requested release from this officer, and in doing so 7 provided his birth certificate as well as a sworn affidavit from a friend of his who 8 lives in San Diego and is willing to house and assist him. Nonetheless, his parole 9 request was denied. The sole explanation provided was a check mark in a box next to 10 a paragraph which states "You have not established to ICE's satisfaction that you will 11 appear as required for immigration hearings, enforcement appointments, or other 12 matters, if you are paroled from detention." Other than requesting a redetermination 13 based on changed circumstances, Mr. Abdikadir has no recourse to any further 14 process for appeal. 15 62. Mr. Abdikadir has suffered during his time in detention, not only because of the 16 traumatic effects of detention in general on those who have suffered past persecution, 17 but also because of his medical problems. Mr. Abdikadir has some kind of problem 18 concerning his eyes - perhaps tied to light sensitivity -- that causes them to be 19 constantly red and irritated. Although he has sought medical attention for this 20 problem at the Mira Lorna Detention Center, the clinic there has not provided him 21 with any medication that has addressed the problem. 22 63. Mr. Abdikadir has been unable to communicate with his family while in 23 detention. He awaits the opportunity to win his release and his status, so that he can 24 begin to recover from the years of suffering he has faced, and also so that he can 25 speak with and hopefully some day re-unite with his wife and children. Given that he 26 has not even submitted an asylum application yet, he will remain incarcerated 27 without a hearing for months more absent this Court's intervention. 28
16

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1 Abel Perez Ruelas 2 64. Abel Perez Ruelas is a citizen of Mexico. He has been in immigration detention 3 at Mira Lorna Detention Center for 17 months, since April 8, 2009. 4 65. Mr. Perez Ruelas was born on January 25, 1967 in Jalisco, Mexico. In 1996, he 5 met Maria del Rosario, with whom he had a daughter, Azirit Lessandra, one year 6 later. 7 66. He was admitted to the United States in 2002 on a visitors' visa, two years after 8 he broke up and lost contact with with Ms. del Rosario. 9 67. In approximately 2007, about five years after Mr. Perez-Ruelas came to live in 10 the United States, he received a call from his mother, who told him that Ms. del 11 Rosario had died in childbirth in Mexico, and that his daughter had been sent to live 12 with her mother's parents. Since then, Mr. Perez Ruelas has been living with the 13 hope that one day he may bring his daughter to the United States to live with him. 14 68. On December 22,2008, Mr. Perez Ruelas married Maria Navichoque Perez, a 15 U.S. citizen. She is a nurse at the Los Angeles Jewish Home, a non-profit senior 16 living facility in Reseda, California. The couple filed to adjust his status based on 17 their marriage in approximately February 2009. 18 69. After his marriage, Mr. Perez Ruelas became the stepfather of Maria Perez's 19 four children, all of whom are U.S. citizens by birth. The two youngest children, 20 Hector and Emily, live with Mr. Perez Ruelas and his wife in their home in Reseda, 21 California. 22 70. Mr. Perez Ruelas has lived and worked in the United States for almost eight 23 years. He works in construction, primarily with cement and tiles. Prior to his 24 detention, he regularly attended church with his wife in Pacoima and Reseda. 25 71. Mr. Perez Ruelas has had three prior convictions for driving under the influence 26 of alcohol, none for which he spent more than two months in jail. Mr. Perez Ruelas 27 served three months of probation for his first offense in 1994; he served 10 days in 28 jail for his second, a decade later in 2004; and he served 60 days in jail for his third,
17

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1 which occurred four years later. Pursuant to his sentence for the last conviction, Mr. 2 Perez Ruelas has diligently attended Alcoholics Anonymous for over a year, and has 3 continued attending AA meetings even while in immigration detention. 4 72. On or about April 8, 2009, Mr. Perez Ruelas was released from jail for his last 5 offense. Immigration and Customs Enforcement officials immediately took him into 6 immigration custody, notwithstanding his pending application to adjust his status 7 based on his marriage. At the time, Mr. Perez-Ruelas was in the process of becoming 8 a lawful permanent resident of the United States. 9 73. Mr. Perez Ruelas was given a bond hearing on April 21, 2009, pursuant to 8 10 U.S.C. 1226(a), at which he bore the burden to prove that he was not a danger or 11 flight risk. Upon information and belief, the immigration judge lmew that Mr. Perez 12 Ruelas was married to a U.S. citizen and that he had a pending adjustment 13 application, but nonetheless the judge denied him release on bail. He told Mr. Perez 14 Ruelas that his prior DUI convictions made him a danger to society, even though his 15 sentence had long since expired. 16 74. With the assistance of his attorney, Mr. Perez Ruelas applied for a bond 17 reduction in February 2010. At that hearing, the immigration judge set a bond of 18 $5,000, an amount too high for Mr. Perez Ruelas's family to pay. 19 75. Because he could not pay, Mr. Perez Ruelas remained in immigration detention 20 - where he has been for the past 16 months awaiting adjudication of his case. His 21 last hearing was over four months ago, on April 15, 2010. 22 76. On July 30,2010, Mr. Perez Ruelas and his wife received notice that their 23 application to adjust his status had been approved, with a priority date of March 22, 24 2009. Although he is entitled to adjust status immediately and will no doubt 25 ultimately prevail in his immigration case, he nonetheless remains detained for no 26 apparent reason, merely because under the stringent standard applied at his bond 27 hearing he cannot pay the bond that the immigration judge set in his case. 28
18

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1 Jose Farias Cornejo
2 77. Jose Farias Cornejo is a citizen of Mexico and a lawful permanent resident of 3 the United States. He has been in immigration detention at Mira Lorna Detention 4 Center for over eleven months, since September 14, 2009. 5 78. Mr. Farias Cornejo was born on August 14, 1984 in Michoacan, Mexico. He 6 was brought to the United States prior to his first birthday by his parents, who were 7 migrant farm workers. He has never left this country, and speaks fluent English. 8 79. Mr. Farias Cornejo has four siblings. All four are U.S. citizens. Mr. Farias 9 Cornejo's mother is also a lawful permanent resident of the United States.
10 80. Mr. Farias Cornejo spent his childhood years in Washington and his 11 adolescence in California because his parents were migrant farm workers. He 12 attended elementary school in San Diego for a few years before moving to Montclair, 13 California to attend middle school and high school. He took special education classes 14 at Montclair High School because of his diagnosed learning disability. 15 81. After graduating from high school, Mr. Farias Cornejo worked at various jobs 16 near his hometown in California, including in construction -- manufacturing jacuzzis 17 and landscaping. 18 82. Mr. Farias Cornejo has had several prior convictions. In 2007, he was convicted 19 of possession of methamphetamine and was given the opportunity to receive 20 substance abuse treatment as an alternative to incarceration under California 21 Proposition 36. Mr. Farias Cornejo diligently completed his drug treatment classes,
22 but because he could not afford to pay the mandatory fine, he was sentenced to 180
23 days in jail.
24 83. Upon information and belief, in 2009 Mr. Farias Cornejo was convicted of a 25 misdelueanor California theft offense, for which he spent 14 days in jail. In that 26 same year, he was convicted of being under the influence of a controlled substance,
27 for which he spent 60 days in jail. 28
19

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1 84. Shortly after serving his last sentence, in September 2009, federal immigration 2 officials initiated removal proceedings against him and placed him in immigration 3 detention, citing their authority to mandatorily detain any individual with a prior 4 controlled substance offense under 8 U.S.C. 1226(c). 5 85. Although the government contends that Mr. Farias Cornejo is subject to 6 "mandatory detention" without a bond hearing under that provision, it has 7 acknowledged that he is eligible for relief from removal in the form of cancellation of 8 removal under 8 U.S.C. 1229b, because he has not been convicted of an "aggravated 9 felony." 10 86. Mr. Farias Cornejo was given a cancellation application on October of2009, 11 but struggled to find an attorney to assist him in completing it. After five months in 12 detention, he finally found an attorney, but that attorney did not file his application. 13 Eventually Mr. Farias Cornejo found a different attorney to represent him, in June of 14 this year. Through his new attorney Mr. Farias Cornejo finally filed his cancellation 15 application, nearly ten months after he was placed into immigration detention. 16 87. Upon information and belief, at his cancellation hearing on August 17, 2010, 17 the government stated that it had no objection to his application. However, the 18 immigration judge told Mr. Farias Cornejo that he had an outstanding warrant, and 19 therefore refused to adjudicate the application. Instead, the judge set his next court 20 hearing for November 15,2010, apparently on the assumption that his warrant would 21 be resolved prior to that time. 22 88. Although Mr. Farias Cornejo poses no flight risk, is not a danger to the 23 community, and is eligible for relief from removal, he remains subject to continued 24 detention. He has never had a hearing to determine whether his detention remains 25 justified even though he has now been incarcerated for nearly a year.
26 Angel Armando Ayala 27 89. Angel Armando Ayala is a citizen ofEl Salvador who was born on August 20, 28 1976. He carne to the United States with his family at the age of eleven and has
20

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1 never left. He attended junior high and high school in Southern California. 2 90. Prior to his arrest by immigration authorities, Mr. Ayala lived with his mother, 3 Maria, who is a United States citizen, and was also frequently in touch with his 4 brother and sister, both of whom live in Southern California. (He also has an older 5 brother who lives in EI Salvador). 6 91. Mr. Ayala has worked in the United States his entire adult life, engaging in a 7 variety of construction-related jobs including forklift driving, materials handling, 8 landscaping, and in shipping and receiving. 9 92. Immigration officials arrested Mr. Ayala in what apparently was a worksite raid lOin approximately 1994. At that time, government officials detained him at the San 11 Pedro Detention facility. He eventually had a hearing before an immigration judge 12 who ordered him released on bond because he was eligible for relief under the 13 Nicaraguan and Cuban Adjustment Relief Act ("NACARA"). The judge instructed 14 him to find a lawyer to help him apply. 15 93. Shortly afterward, when Mr. Ayala went to the federal immigration building, he 16 met a man acting as an attorney named Jose Quinones. Mr. Quinones offered to file 17 Mr. Ayala's NACARA application for a fee. 18 94. Mr. Quinones eventually filed the application, which was based on Mr. Ayala's 19 mother's eligibility for NACARA. A hearing on the application was set for October 20 29, 1999. 21 95. Shortly before the hearing, Mr. Ayala's mother became seriously ill. Because 22 he had to take his mother to the hospital and attend to her, Mr. Ayala could not attend 23 the court hearing. At the hearing, the immigration judge ordered him removed in 24 absentia, notwithstanding the fact that he was prima facie eligible for NACARA 25 relief. 26 96. A few days after the hearing, after his mother's condition had stabilized, Mr. 27 Ayala called Mr. Quinones to discuss his immigration case. Mr. Quinones stated that 28 the case now had to be re-opened, and that he would charge Mr. Ayala several
21

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1 thousand dollars to do this. When Mr. Ayala stated that he did not have such funds 2 available, Mr. Quinones told him to contact him when he had saved up the money. 3 He did not mention that Mr. Ayala had to file the motion within 180 days, as is 4 required, or that he could be deported if he did not file the motion. 5 97. Several years later, Mr. Quinones was suspended from practicing before the 6 immigration courts by the Executive Office of Immigration Review. If he ever was a 7 licensed attorney, he has presumably been disbarred. 8 98. Mr. Ayala continued to live and work in the United States for the ensuing 9 decade. Upon information and belief, he received several misdemeanor convictions 10 for driving without a license during this time, but was not convicted of any other 11 offense. 12 99. On February 14,2009, immigration authorities arrested Mr. Ayala at his home 13 in Pomona, which he shares with his mother, based on his outstanding removal order 14 from ten years earlier. They transferred him to the Mira Lorna Detention Center. 15 100. With the assistance of non-profit legal service provider Catholic Charities, Mr. 16 Ayala filed a motion to reopen his case based on ineffective assistance of counsel. 17 However, the immigration judge denied the motion, and the BIA affirmed the 18 decision, asserting that the motion was untimely and not subject to tolling based on 19 ineffective assistance. According to the Board, the attorney had no duty to inform 20 Mr. Ayala of the filing deadline for the motion to reopen because the attorney never 21 agreed to represent him with respect to the motion. Thus, the Board declined to 22 reopen his case, notwithstanding the fact that Mr. Ayala is eligible for NACARA 23 relief.9 24 101. Mr. Ayala subsequently hired attorney Shan Potts, who now represents him 25 before the Ninth Circuit. The Ninth Circuit granted Mr. Ayala a stay of removal, but 26
9 Upon information and belief, Mr. Ayala has one misdemeanor conviction for drug 27 possession from approximately 1996 and several convictions for driving without a 28 license. None of these render him ineligible for NACARA.
22

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1 briefing has not yet begun in his petition for review of the BIA's decision. His case
2 will likely take well over a year to decide at the Ninth Circuit, given the court's
3 substantial case backlog.
4 102. Mr. Ayala's incarceration has worked a great hardship on his U.S.-citizen
5 mother, with whom he lived prior to his arrest. She has had difficulty paying rent for
6 the apartment they shared, and also has suffered from the absence of his emotional
7 support.
8 CLASS-WIDE ALLEGATIONS
9 103. Petitioners are amongst approximately at least 350 detainees, ifnot more, in the
10 Central District on any given day whom the government has incarcerated for more
11 than six months without proving at an adequate hearing that their prolonged detention
12 is justified. 10 Indeed, it is the government's policy or practice to detain non-citizens
13 under the general immigration detention statutes for prolonged periods of time
14 pending completion of their removal proceedings without providing them with such
15 hearings.
16 104. In response, Petitioners bring this action on behalf of themselves and all other
17 persons similarly-situated, pursuant to Federal Rules of Civil Procedure 23(a) and
18 23(b)(2), or in the alternative, as a representative action pursuant to a procedure
19 analogous to that provided in Rules 23(a) and 23(b)(2). See Rodriguez v. Hayes, 578
20 F.3d 1032,1047 (9th Cir. 2009) (allowing this case to proceed as a class action
21
22 10 This Court ordered the government to produce a "snapshot" list of all class members on a particulate date, which the government produced for the date of April
23 21,2010. As of that day, there were 352 class members - people incarcerated in ICE 24 custody in the Central District who had been in ICE custody for at least 180 days, and
whose cases remained pending either before the immigration courts or before the 25 federal courts with a stay of removal in effect. The list also included a number of 26 people who were not class members because they were not incarcerated in detention
centers at all, but rather in juvenile facilities, and also two people who were not class 27 members because they were had final removal orders with no stay of removal in 28 effect.
23

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1 habeas petition). 2 105. Petitioners represent a class of all people within the Central District of 3 California who 1) are or will be detained for longer than six months pursuant to the 4 general immigration detention statutes pending completion of removal proceedings, 5 including judicial review, 2) are not detained pursuant to one of the national security 6 detention statutes at 8 U.S.C. 1226a and 8 U.S.C. 1531-37 and 3) have not been 7 afforded a hearing to determine whether their prolonged detention is justified. 8 106. The class includes people who were present in an ICE detention facility in the 9 Central District on or after the date on which the original complaint was filed as long 10 as they had been detained by ICE for more than six months at that time, even if they 11 are no longer in the Central District; it therefore includes people subject to the mass 12 transfer of detainees from the San Pedro Detention Facility in October 2007, as long 13 as those people remain in an ICE detention facility somewhere and their cases remain 14 pending. 15 107. The class excludes people who have a final order of removal and no stay of that 16 removal order, such that the government has legal authority to remove them. 17 108. The class excludes juveniles who are held under the care of the Office of 18 Refugee Resettlement. It also excludes people imprisoned pursuant to a criminal 19 sentence, including individuals who complete removal proceedings and any judicial 20 review while serving such sentences. 21 109. Pursuant to this Court's directive that the parties propose sub-classes, 22 Petitioners propose that the Court also certify four sub-classes in this action, 23 corresponding to each of the general detention statutes. Petitioners propose to 24 represent a sub-class of class members detained under 8 U.S.C. 1225(b) represented 25 by Mr. Farah and Mr. Abdikadir, a sub-class of class members detained under 8 26 U.S.C. 1226(a) represented by Mr. Rodriguez and Mr. Perez Ruelas, a sub-class of 27 class members detained under 8 U.S.C. 1226(c) represented by Mr. Farias Cornejo, 28 and a sub-class of class members detained under 8 U.S.C. 1231(a) represented by Mr.
24

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1 Ayala. 2 110. For each putative sub-class and each detention statute, Petitioners' counsel 3 estimates that there will be far more than forty other sub-class members in this 4 District who, like each of the Petitioners, have been detained for more than six 5 months, are detained under that particular general detention statute, and have not 6 been afforded a constitutionally-adequate hearing to determine whether their 7 prolonged detention is justified. Indeed, there may well be more than forty members 8 of each sub-class detained in the Central District on any given single day. 9 111. The proposed class and sub-classes meet the requirements of Fed. R. Civ. Pro. 10 23(a)(2). For the class as a whole, there are several common questions of law and 11 fact in the action. These include 1) whether the government has a policy or general 12 practice of detaining non-citizens in removal proceedings for longer than six months 13 under the general immigration detention statutes without providing an adequate 14 hearing to determine whether such prolonged detention is justified, 2) whether any 15 general immigration detention statute authorizes this detention policy or practice, and 16 3) whether this detention policy or practice violates the Due Process Clause. 17 Rodriguez, 578 FJd at 1048-49 (finding common questions). 18 112. There are additional common questions of law that pertain to each subclass. 19 These include: for Subclass 1, whether 8 U.S.C. 1225(b) authorizes the policy or 20 general practice of detaining non-citizens in removal proceedings for longer than six 21 months without providing a hearing where the government must establish that such 22 detention is justified; for Subclass 2, whether 8 U.S.C. §1226(a) authorizes this 23 detention policy or practice; for Subclass 3, whether 8 U.S.C. §1226(c) authorizes 24 this detention policy or practice; and for Subclass 4 whether §1231(a) authorizes this 25 detention policy or practice. 26 113. The claims of the named representative Petitioners are typical of the claims of 27 each proposed sub-class and of the class as a whole. Like all of the proposed class 28 members, the named Petitioners will have been detained, pursuant to the
25

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1 government's policy and practice, for at least six months under the relevant general 2 immigration detention statutes, without having been afforded an adequate hearing 3 where the government has shown that their prolonged detention is justified. 4 Rodriguez, 578 FJd at 1048-50. 5 114. The named Petitioners will fairly and adequately represent the interests of all 6 members of the proposed class and sub-classes because they seek relief identical to 7 the relief sought by all class members, and because they have no interests adverse to 8 other class members. Moreover, the named Petitioners are represented by pro bono 9 counsel from the ACLU of Southern California, the ACLU Immigrants' Rights 10 Project, the Stanford Law School Immigrants' Rights Clinic, and the law firm of 11 Sidley Austin LLP. These organizations and the attorneys working for them have 12 extensive experience litigating on behalf of detained immigrants and broad 13 experience litigating class actions. Rodriguez, 578 F.3d at 1050. 14 115. Respondents have acted on grounds generally applicable to the class and to 15 each subclass through their policy and practice of detaining non-citizens in removal 16 proceedings for longer than six months under each of the general immigration 17 detention statutes without providing an adequate hearing where the government has 18 shown that their prolonged detention is justified, making class-wide declaratory and 19 injunctive relief appropriate. 20
LEGAL BACKGROUND
21 116. Petitioners argue that the government may not detain them for longer than six
22 months without showing at an adequate hearing that their prolonged detention is
23 justified. Peititioners make this argument on both statutory and constitutional
24 grounds.
25 117. With respect to the statute, Petitioners argue that because their removal
26 proceedings have exceeded an "expeditious" period, the general detention statutes
27 under which they are detained must be construed to require an individualized hearing
28 26

Case 2:07-cv-03239-TJH-RNB Document 111 Filed 10/22/10 Page 29 of 34 Page ID #:1072
1 as to whether or not their detention is justified. Several decisions have already 2 construed these statutes to authorize only reasonable detention, and to require 3 individualized hearings to ensure that detention under them remains reasonable. See 4 generally Nadarajah v. Gonzales, 443 F.3d 1069, 1078-79 (9th Cir. 2006) (holding 5 that because 8 U.S.C. 1225(b) is one of "the general immigration detention statutes" 6 it authorizes detention only for a "brief and reasonable" period of time necessary to 7 complete removal proceedings, presumptively six months); Tijani v. Willis, 430 F.3d 8 1241 (9th Cir. 2005) (construing 8 U.S.C. 1226(c) to require mandatory detention 9 only in cases of "expeditious" removal proceedings, and ordering a hearing to 10 determine whether detention is justified); Casas-Castrillon v. Dep't of Homeland 11 Sec., 535 F.3d 942, 950 (9th Cir. 2008) (construing general detention statutes to 12 require bond hearings where government bears burden of proof to validate prolonged 13 detention). Because none of the general detention statutes explicitly authorize 14 prolonged detention without individualized hearings, they must all be construed to 15 require such hearings to ensure that detention remains reasonable. 16 118. In the alternative, Petitioners argue that their prolonged detention without an 17 adequate hearing to determine whether detention is justified violates the Due Process 18 Clause. "Freedom from imprisonment -- from government custody, detention, or 19 other forms of physical restraint --lies at the heart of the liberty that [the Due 20 Process] Clause protects." Zadvydas, 533 U.S. at 690. For this reason, detention 21 must always be reasonable in relation to its purpose. Jackson v. Indiana, 406 U.S. 22 715, 738 (1972). See also Demore, 538 U.S. at 527-29 (applying "reasonable 23 relation" test). 24 119. In the immigration context, the primary purpose of detention is to effect the 25 alien's deportation in the event that removal proceedings are finally concluded in the 26 government's favor. Zadvydas, 533 U.S. at 699 (holding that the "statute's basic 27 purpose" is "to assure the alien's presence at the moment of removal"); Demore, 538 28 U.S. at 528 (upholding brief mandatory detention pending completion of removal
27

Case 2:07-cv-03239-TJH-RNB Document 111 Filed 10/22/10 Page 30 of 34 Page ID #:1073
1 proceedings because it "serves the purpose of preventing deportable criminal aliens 2 from fleeing prior to or during their removal proceedings."). 3 120. Because Petitioners and other class members suffer lengthy civil detention, they 4 must be afforded rigorous procedures to ensure that their detention remains justified. 5 Zadvydas, 533 U.S. at 690-92 (noting "serious" constitutional problem with 6 prolonged and indefinite civil detention unless "limited to specially dangerous 7 individuals and subject to strong procedural protections") (emphasis added); Casas8 Castrillon, 535 F.3d at 950 (holding that "prolonged detention without adequate 9 procedural protections would raise serious constitutional concerns" and therefore that 10 "due process requires adequate procedural protections to ensure that the government's 11 asserted justification for physical confinement outweighs the individual's 12 constitutionally protected interest in avoiding physical restraint.") (citing Zadyydas). 13 121. With respect to what procedures are required for a hearing to be adequate to 14 justify prolonged detention for both statutory and constitutional purposes, the 15 government must at a minimum provide advance notice to the detainee and then 16 provide a transcribed hearing before an immigration judge where it bears the burden 17 to show by "clear and convincing" evidence that "no conditions of release" are 18 sufficient to protect the government's interests in preventing flight and danger. See 19 Cooper v. Oklahoma, 517 U.S. 348, 363 (1996) ("due process places a heightened 20 burden of proof on the State in civil proceedings in which the individual interests at 21 stake ... are both particularly important and more substantial than mere loss of 22 money.") (internal quotations omitted); Foucha v. Louisiana, 504 U.S. 71 (1992) 23 (requiring "clear and convincing evidence" for commitment of insanity acquittee 24 beyond length ofperrnissible sentence); United States v. Salerno, 481 U.S. 739, 750 25 (1987) (recognizing that the "no conditions of release" standard strikes appropriate 26 balance of interests). In addition, a showing ofparticularly serious danger is required 27 - given that detention may last for years -- and a detainee's criminal history alone is 28 insufficient to make that showing. Zadvydas, 533 U.S. at 690-91 ("we have upheld
28

Case 2:07-cv-03239-TJH-RNB Document 111 Filed 10/22/10 Page 31 of 34 Page ID #:1074
1 preventive detention based on dangerousness only when limited to specially 2 dangerous individuals and subject to strong procedural protections"). Perhaps most 3 important, the hearing must require a heightened showing based on the length of 4 detention at issue. Where a detainee has been detained for a long period of time and 5 proceedings may not end in a brief time, the government must make more of a 6 showing to justify the detention at issue. United States v. Accetturo, 783 F.2d 382, 7 388 (3d Cir. 1986) (stating in pre-trial detention context that "[i]n some cases, the 8 evidence admitted at the initial detention hearing, evaluated against the background 9 of the duration of pretrial incarceration and the causes of that duration, may no longer 10 justify detention."); Tijani v. Willis, 430 F. 3d 1241,1242 (9th Cir. 2005) (ordering 11 bond hearing where government bore burden of proof in part because the "forseeable 12 process [for resolution of Petitioner's removal case] in this Court" was "a year of 13 more"). 11 14 122. In addition, any unrepresented detainee would have to be afforded counsel at 15 the government's expense at a hearing where prolonged detention was at stake. See 16 Lassiter v. Dept of Soc. Serv., 452 U.S. 18,25 (1981) (noting that "it is the 17 defendant's interest in personal freedom, and not simply the special Sixth and 18 Fourteenth Amendments right to counsel in criminal cases, which triggers the right to 19 appointed counsel"). 20 21 22
23 11 This Court ordered hearings that largely comported with these requirements when it 24 granted preliminary injunctions for four individual prolonged detainees in litigation
closely related to this case. See, e.g., Order Granting Motion for Preliminary 25 Injunction, Martinez v. Gonzales, CV06-7609 (C.D. Cal. January 4,2007) (ordering 26 government to release detainee unless "the government shows by clear and convincing
evidence that he is a sufficient danger or risk of flight to justify his detention in light 27 of how long he has been detained already and the likelihood of his case being finally 28 resolved in favor of the government in the reasonably foreseeable future.").
29

Case 2:07-cv-03239-TJH-RNB Document 111 Filed 10/22/10 Page 32 of 34 Page ID #:1075

1 123. Absent the provision of such hearings, the government's detention of

2 Petitioners and other class members violates both the immigration statutes and the

3 Due Process Clause.

4

5

FIRST CAUSE OF ACTION

6

Violation of Immigration and Nationality Act and Regulations

7 124. Petitioners reallege and incorporate by reference each and every allegation

8 contained in the preceding paragraphs as if set forth fully herein.

9 125. Respondents' continued detention of Petitioners and other putative class

10 members under the general immigration detention statutes violates the Immigration

11 and Nationality Act, insofar as the statutes under which they are detained do not

12 authorize detention for a prolonged period of time absent an adequate hearing at

13 which the government shows that their detention remains justified.

14

15

SECOND CAUSE OF ACTION

16 Violation of Fifth Amendment Due Process (Right to a Constitutionally Adequate

17

Custody Hearing)

18 126. Petitioners reallege and incorporate by reference each and every allegation 19 contained in the preceding paragraphs as if set forth fully herein. 20 127. Respondents' continued detention of Petitioners and other class members 21 without an adequate hearing where the government shows that their prolonged 22 detention remains justified violates the right to be free of prolonged non-criminal 23 detention without adequate justification and sufficient procedural safeguards, as 24 guaranteed by the Due Process Clause of the Fifth Amendment to the United States 25 Constitution. 26 27 28
30

Case 2:07-cv-03239-TJH-RNB Document 111 Filed 10/22/10 Page 33 of 34 Page ID #:1076

1

PRAYER FOR RELIEF

2

WHEREFORE, Petitioners respectfully request that the Court grant the

3 following relief:

4 a.

Assume jurisdiction of this matter;

5 b.

Certify a class and sub-classes as appropriate under Fed. R. Civ. Pro. 23

6 (or other analogous procedures) consisting of all people within the Central District of

7 California who 1) are or will be detained for longer than six months pursuant to the

8 general immigration detention statutes pending completion ofremoval proceedings,

9 including judicial review, 2) are not detained pursuant to one of the national security

10 detention statutes at 8 U.S.C. l226a and 8 U.S.C. 1531-37 and 3) have not been

11 afforded a hearing to determine whether their prolonged detention is justified;

12 c.

Appoint Petitioners Rodriguez and Perez Ruelas, as representatives of a

13 sub-class of class members detained under 8 U.S.C. 1226(a); Petitioners Farah

14 andAbdikadir as representatives of a sub-class of class members detained under 8

15 U.S.C. 1225(b); Petitioner Farias Cornejo as the representative of a sub-class of class

16 members detained under 8 U.S.C. 1226(c); and Petitioner Ayala as the representative

Respondents will bear the burden to prove by clear and convincing evidence that no

at issue;

25 f.

Declare that Respondents' failure to provide Petitioners and the members

26 of the class with adequate hearings violates the Immigration and Nationality Act and

27 the Due Process Clause of the Fifth Amendment;

28

31

Case 2:07-cv-03239-TJH-RNB Document 111 Filed 10/22/10 Page 34 of 34 Page ID #:1077

1 g.

Enjoin Respondents from failing to provide Petitioners and each member

2 of the Class, upon notice, with adequate hearings before an immigration judge (as

3 specified above in subsection (e) of this Prayer);

4 h.

Grant Petitioners reasonable attorneys' fees, costs, and other

5 disbursements pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412;

6 1.

Grant such other relief as the Court deems just and equitable.

7

Respectfully submitted,

8 9 10 Dated: October 20, 2010 11

ACLU OF SOUTHERN CALIFORNIA
By~IJ/1 v-/;tZfW A'fil'LAN 'I. AROLANANTHAM Counsel for Petitioners

12

13

14

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16

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25

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28 32

 
 Case 2:07-cv-03239-TJH-RNB Document 155 Filed 01/27/11 Page 1 of 4 Page ID #:1782

1

2

3

4

5

6

7

8

United States District Court

9

Central District of California

10

Western Division

11

12

ALEJANDRO RODRIGUEZ, et al.,

CV 07-03239 TJH (RNBx)

13

Petitioners,

14

v.

15

ERIC H. HOLDER, et al.,

Order

16

Respondents.

17

18

The Court has considered Defendant’s motion for judgment on the pleadings

19 together with the moving and opposing papers.

20

21

A motion for judgment on the pleadings challenges the legal sufficiency of the

22 non-moving party’s pleadings. Fed. R. Civ. P. 12(c). For the motion to succeed,

23 the moving party must be entitled to judgment as a matter of law, even if the facts

24 alleged in the complaint are taken as true. Hal Roach Studios, Inc. v. Richard

25 Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1989). When considering the motion,

26 the court may only take into account allegations and facts in the complaint and

Order – Page 1 of 4

Case 2:07-cv-03239-TJH-RNB Document 155 Filed 01/27/11 Page 2 of 4 Page ID #:1783

1 answer. Amfac Mortg. Corp. v. Arizona Mall of Tempe, Inc., 583 F.2d 426, 429

2 (9th Cir. 1978).

3

4

Under the Entry Fiction Doctrine, those aliens who are not yet considered to

5 be on American soil do not possess constitutional rights with regard to their

6 application for admission. Alvarez-Garcia v. Ashcroft, 378 F.3d 1094, 1097 (9th

7 Cir. 2004). However, this doctrine only deals with the procedure for admitting

8 aliens, not their substantive rights. Kwai Fun Wong v. United States, 373 F.3d 952,

9 974 (9th Cir. 2004). Non-admitted aliens are able to bring substantive Fourteenth

10 Amendment claims, such as equal protection and due process. Kwai Fun Wong, 373

11 F.3d at 974. Therefore, the Entry Fiction Doctrine does not preclude Plaintiff from

12 bringing procedural due process claims under 8 U.S.C. § 1225(b), regardless of the

13 sub-class’s immigration status.

14

15

Mandatory detainment under 8 U.S.C. § 1226(c) does not require a bond

16 hearing to satisfy due process. Demore v. Kim, 538 U.S. 510, 529 123 S. Ct. 1708,

17 1721, 155 L. Ed. 2d 724, 732 (2003). However, when an alien does not concede

18 deportability, this section only applies to expedited removal proceedings. Tijani v.

19 Willis, 430 F.3d 1241, 1242 (9th Cir. 2005). When the Board of Immigration

20 Appeals affirms the order of removal and administrative proceedings are complete,

21 authority to detain the immigrant under 8 U.S.C. § 1226(c) ends, and the detention

22 falls under the purview of 8 U.S.C. § 1226(a). Casas-Castrillon v. DHS, 535 F.3d 23 942, 948 (9th Cir. 2008). At that point, a bond hearing must be held. Casas24 Castrillon, 535 F.3d at 950. Otherwise, this prolonged detention of a legal 25 permanent resident would raise constitutional concerns. Casas-Castrillon, 535 F.3d 26 at 950.

Order – Page 2 of 4

Case 2:07-cv-03239-TJH-RNB Document 155 Filed 01/27/11 Page 3 of 4 Page ID #:1784

1

Though due process does not require a bond hearing under 8 U.S.C. §

2 1226(c), the authority to detain immigrants is limited. Casas-Castrillon, 535 F.3d

3 at 950. Consequently, each immigrant detained under 1226(c) must receive a

4 hearing, as, at some point, the authority to detain switches from 1226(c) to 1226(a),

5 when all administrative hearings are complete. Casas-Castrillon, 535 F.3d at 948.

6 Thus, the statute can be interpreted to require a bond hearing after a certain amount

7 of time, not only to comply with precedent, but to avoid constitutional concerns as

8 well. As such, Plaintiff’s claim would succeed.

9

Furthermore, the facts, as alleged, indicate that hundreds of immigrants are

10 held for years under the authority of the other sections, without an individualized

11 determination of their flight risk or danger to society. Without a bond hearing, this

12 prolonged detention raises due process issues, considering the aliens do not have an

13 opportunity to contest their detainment. The statute must be interpreted to avoid any

14 potential due process issues. Clark v. Martinez, 543 U.S. 371, 381, 125 S. Ct. 716,

15 724, 160 L. Ed. 2d 734, 743 (2005). As such, if the above facts are taken as true,

16 there are due process concerns. To avoid these issues, the court could hold the

17 detention statute mandates bond hearings after a certain, reasonable period of time.

18

Additionally, the Ninth Circuit has indicated this Court should determine in

19 which fact scenarios bond hearings would be appropriate. Rodriguez v. Hayes, 591

20 F.3d 1105, 1115 (9th Cir. 2010). The Circuit has, also, held that bond hearings are

21 required when detention becomes prolonged, in order to avoid due process issues.

22 Casas-Castrillon, 535 F.3d at 950. Since many immigrants are held without a

23 hearing for years, it is incumbent on this Court to construe the statute to require

24 bond hearings when detention becomes unreasonable. As such, the Court can grant

25 relief to the class as a whole by interpreting the statute to require bond hearings after

26 detainment has lasted an unreasonable length of time, in which case, Plaintiff has a

Order – Page 3 of 4

Case 2:07-cv-03239-TJH-RNB Document 155 Filed 01/27/11 Page 4 of 4 Page ID #:1785

1 remedy at law.

2

3

It is Ordered that Defendant’s motion for judgment on the pleadings be,

4 and hereby is, Denied.

5

6 Date: January 27, 2011

7

___________________________________

8

Terry J. Hatter, Jr.

Senior United States District Judge
9

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Order – Page 4 of 4

 
 Case 2:07-cv-03239-TJH-RNB Document 161 Filed 03/08/11 Page 1 of 3 Page ID #:1805

1

2

3

4

5

6

7

8

United States District Court

9

Central District of California

10

Western Division

11

12

ALEJANDRO RODRIGUEZ, et al.,

CV 07-03239 TJH (RNBx)

13

Petitioners,

14

v.

15

ERIC H. HOLDER, et al.,

O[1r0d1e]r

16

Respondents.

17

18

The Court has considered Plaintiff’s motion for class certification, together

19 with the moving papers and Respondents’ statement of non-opposition.

20

To certify a class, it must satisfy commonality, typicality, numerosity, and

21 adequacy requirements. Fed. R. Civ. P. 23(a). For subclasses to exist, each

22 subclass must meet these requirements as well. Fed. R. Civ. P. 23(c)(5). The first

23 requirement, commonality, ensures that all absent members of the class are

24 adequately represented. Walters v. Reno, 145 F.3d 1032, 1045 (9th Cir. 1998).

25 This requirement has been construed permissively, as in, it is not necessary for all

26 questions of law and fact to be exactly the same. Hanlon v. Chrysler Corp., 150

Order – Page 1 of 3

Case 2:07-cv-03239-TJH-RNB Document 161 Filed 03/08/11 Page 2 of 3 Page ID #:1806

1 F.3d 1011, 1019 (9th Cir. 1998). It is only necessary that there be a common core

2 of operative facts and legal issues. Hanlon, 150 F.3d at 1019.

3

The second requirement, typicality, looks to whether the claims of the class

4 representative adequately represent the claims of the class as a whole. Armstrong

5 v. Davis, 275 F.3d 849, 868 (9th Cir. 2001). The claims must, also, share parallel

6 legal arguments. Armstrong, 275 F.3d at 849. Typicality is construed permissively

7 as well, and only requires that the claims be reasonably similar, rather than identical.

8 Hanlon, 150 F.3d at 1020.

9

Numerosity is satisfied if joinder of all parties is impractical. Fed. R. Civ.

10 P. 23(a). A large number of plaintiffs generally satisfies this requirement. Jordan

11 v. Los Angeles County, 669 F.2d 1311, 1319 (9th Cir. 1982).

12

Finally, adequacy is fulfilled if the counsel for each named representative is

13 sufficiently qualified, there is a shared interest between representatives and absent

14 class members, and it is unlikely the suit is collusive. Walters, 145 F.3d at 1046.

15 Additionally, the Circuit already determined that the class satisfies Rule 23(b)(2)’s

16 requirements, given that the class as a whole seeks declaratory and injunctive relief.

17 Rodriguez v. Holder, 951 F.3d 1105, 1125-26 (9th Cir. 2010).

18

As for numerosity, Plaintiff conducted a random sampling from the

19 government’s list of 352 class members, and the result indicated that each subclass

20 would contain at least forty five immigrants. Joinder of all of these people would

21 be impractical, and thus the subclasses satisfy numerosity. The adequacy

22 requirement is met, also, given that counsel consists of lawyers from the American

23 Civil Liberties Union, and each named plaintiff is seeking identical relief as the

24 absentee class members.

25

The proposed subclasses share a common question of law and fact, as well.

26 The subclasses are divided along statutory lines, with each section containing a

Order – Page 2 of 3

Case 2:07-cv-03239-TJH-RNB Document 161 Filed 03/08/11 Page 3 of 3 Page ID #:1807

1 subclass. Therefore, each subclass member shares a similar factual pattern, having

2 been detained under that section’s authority. Though most situations are not exactly

3 the same, commonality does not mandate that the fact patterns be identical. Hanlon,

4 150 F.3d at 1019. Additionally, the questions of law under each section are the

5 same: Whether that section can be interpreted to require a bond hearing after six

6 months, or, conversely, whether the procedures already in place satisfy due process.

7 Therefore, the commonality requirement is met.

8

As for the typicality requirement, each named representative has been detained

9 under the authority of the various sections for over six months. Thus, the named

10 plaintiff shares a common underlying fact pattern with the absent class members,

11 otherwise he would be detained under a different section. Furthermore, the remedy

12 the named plaintiff is seeking is identical to the other class members: Declaratory

13 and injunctive relief, mandating a bond hearing after a detention of more than six

14 months. Therefore, typicality is satisfied. Thus, all the requirements of Rule 23 are

15 met for each subclass.

16

It is Ordered that Plaintiff’s motion for class certification shall be, and hereby

17 is, Granted.

18

19 Date: March 8, 2011

20

___________________________________

21

Terry J. Hatter, Jr.

22

Senior United States District Judge

23

24

25

26

Order – Page 3 of 3

 
 Case 2:07-cv-03239-TJH-RNB Document 175 Filed 05/11/11 Page 1 of 2 Page ID #:2168

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES--GENERAL
Case No. CV 07-3239-TJH (RNBx)

Date: May 11, 2011

Title: Alejandro Rodriguez, et al. v. Timothy S. Robbins, et al. DOCKET ENTRY

PRESENT:
HON. ROBERT N. BLOCK, UNITED STATES MAGISTRATE JUDGE

Kerri Hays Deputy Clerk

n/a Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS:
None present

ATTORNEYS PRESENT FOR DEFENDANTS:
None present

PROCEEDINGS: (IN CHAMBERS)

Respondents’ Ex Parte Application for an Order (1) Partially Staying April 25, 2011 Discovery Order Pending Consideration of Motion for Review, or, in the Alternative, forModification of the Discovery Order, and (2) Continuing Hearing Date onProtective Order One Week, filed May 4, 2011

As a preliminary matter, the Court notes that petitioners have failed to cite any authority, let alone any Ninth Circuit aut hority, for the proposition that the standard applicable to an application for a stay pe nding District Judge review of a Magistrate Judge’s non-dispositive ruling on a discovery motion is the sam e as the standard applicable to an application for a stay pending judicial review of administrative action or to an application for a stay pending appeal.
However, even if that standard applied here, the Court would come out the same way on the four factors as the Magistrate Judge in Martinelli v. Petland, Inc., 2010 WL 4627893 (D. Kan. Nov. 3, 2010). With re spect to the first fa ctor, while nothing contained in respondents’ m otion for review persuades the Court that its ruling was clearly erroneous or contrary to law, it is possible that Judge Hatter will disagree. With respect to the second factor, the Court finds that respondents would suffer irreparable harm if they have to expend time and energy producing documents that the District Judge ultimately concludes should not have been ordered produced. With respect to the third factor, the Court is not convinced that the limited stay sought by respondents, pending Judge Hatter’s ruling on their m otion for review set for hearing on June 6, 2011, will substantially injure petitioners. Finally, w ith respect to the fourth factor, like the

MINUTES FORM 11 CIVIL-GEN

Initials of Deputy Clerk klh

Case 2:07-cv-03239-TJH-RNB Document 175 Filed 05/11/11 Page 2 of 2 Page ID #:2169

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES--GENERAL

Case No.: CV 07-3239-TJH (RNBx) Alejandro Rodriguez, et al. v. Timothy S. Robbins, et al.

May 11, 2011 Page 2

--------------------------------------------------------------------------------------------------------------------

Magistrate Judge in Martinelli , the Court finds that public interest weighs neither in favor of nor against granting a stay.
Therefore, after weighing the equities, the Court has decided to grant respondent’s Ex Parte Application for a partial stay of the Court’s April 25, 2011 discovery order pending Judge Hatter’s ruling onrespondents’ motion for review. If Judge Hatter denies the motion for review, then the 60-day period for respondents to produce the A-File Materials sought by petitioners for noncitizens detained six months or longer in the Central District from April 21, 2010 and who spent a substantial portion of their time in the Central District, as described in petitioners’ proposal as set forth on page 13, lines 7-15 of the Joint Stipulation, shall commence to run on the date ofJudge Hatter’s denial.
As for the protective order issue, if counsel are unable to agree on the terms of an appropriate protective order that addresses the issues raised by respondent on page 47, lines 21-24 of the Joint Stipulation in the meantime, counsel are ordered to appear in person before the Court on June 14, 2011 at 9:30 a.m. for the purpose of meeting and conferring under the Court’s auspices.
IT IS SO ORDERED.

cc: Judge Hatter

MINUTES FORM 11 CIVIL-GEN

Initials of Deputy Clerk klh

 
 1 TONY WEST Assistant Attorney General
2 Civil Division DAVID J. KLINE
3 Director, Office of Immigration Litigation District Court Section
4 VICTOR M. LAWRENCE Principal Assistant Director
5 THEODORE W. ATKINSON Senior Litigation Counsel
6 United States Department of Justice Civil Division
7 Office of Immigration Litigation District Court Section
8 P.O. Box 868, Ben Franklin Station Washington, DC 20044
9 Tel.: (202) 532-4135 e-mail: theodore.atkinson@usdoj.gov
10 Attorneys for Respondents
11

12

UNITED STATES DISTRICT COURT

13

CENTRAL DISTRICT OF CALIFORNIA

14

WESTERN DIVISION

15

ALEJANDRO RODRIGUEZ, et al., ) Case No. CV 07-3239-TJH (RNBx)

16

)

17

Petitioners,

) )

DISCOVERY MATTER

vs.

)

18

) [PROPOSED] STIPULATED

TIMOTHY S. ROBBINS, in his 19 capacity as U.S. Immigration and
Customs Enforcement, Los Angeles

) ) )

PROTECTIVE ORDER GOVERNING CONFIDENTIAL INFORMATION

20 District Field Office Director;

)

JANET NAPOLITANO, in her 21 capacity as Secretary of Homeland

) )

Hon. Robert N. Block

Security; and ERIC H. HOLDER, JR., )

22 in his capacity as Attorney General of )

the United States,

)

23

)

Respondents.

)

24

)

25

26

27

28

1

This matter comes before this Court on the parties’ joint stipulation for the

2 entry of a protective order governing confidential information. Good cause exists
3

4 for the entry of a protective order because discovery in this action has and will

5 result in the disclosure by the parties of personal and confidential non-privileged 6
information, including electronic database information, possibly information from 7 8 alien files (or “A-Files”), and other information concerning members of the class

9 certified in this action and other individuals. The parties having agreed to the 10
following terms governing the treatment of confidential information, and the 11 12 Court having found that good cause exists for issuance of an appropriately-tailored

13 confidentiality order governing the pre-trial phase of this action, it is

14 HEREBY ORDERED as follows:
15

16

1. Pursuant to 5 U.S.C. § 552a(b)(11), this Stipulated Protective Order

17 authorizes Respondents to produce private identifying information and other
18 information discoverable pursuant to Fed. R. Civ. P. 26(c) that Petitioner seeks
19

20 without requiring officials of the United States to pre-screen each document for

21 objections under the Privacy Act, 5 U.S.C. § 552a, and presenting those objections
22 23 to this Court for a decision regarding disclosure.

24

2. The terms of this Stipulated Protective Order will govern the parties’

25 production of information in response to discovery requests, to the extent that such
26 27 production contains “Confidential Information” as defined in paragraph 3 and

28 designated in paragraph 4. The terms of this Order shall also govern the

1

1 safeguarding of such information by all individuals referenced in paragraph 6. 2
3. As used in this Stipulated Protective Order, “Confidential 3 4 Information” is defined as any information not publicly available that is disclosed
5 by the parties in this action and which at or before the time of disclosure has been 6
designated as “Confidential” by the parties in accordance with paragraph 4. The 7 8 disclosure of all information that the parties previously agreed to keep confidential
9 shall now be governed by this Stipulated Protective Order. “Confidential 10
Information” is the following: (a) the names, alien numbers, locations of, or any 11 12 other identifying information which would allow the identification of the
13 particular individual(s) to whom the information relates, (b) individual medical 14
information, (c) certain individual financial and tax information, (d) non-public 15 16 divorce decrees, (e) any information that is protected or restricted from disclosure
17 by statute or regulation, but which the Court has ordered to be produced, and (f) 18
any other category of information hereinafter given confidential status by the 19 20 Court. If a designating party determines that information not described in this
21 paragraph should be designated as “Confidential Information,” the parties shall 22 23 negotiate the appropriateness of that designation in good faith and endeavor to 24 resolve any dispute prior to the production of that information. Information that is
25 not “Confidential Information” includes, but is not limited to, aggregate 26 27 information concerning class members that does not permit the identification of
28 the particular individuals to whom the information relates.
2

1

4. “Confidential Information” may be designated by the parties in one

2 or more of the following ways:
3

4

a. “Confidential Information” set forth in a response to an

5 interrogatory may be so designated by including the word “Confidential” in the

6 response.
7

8

b.

“Confidential Information” contained in a document or part

9 thereof may be so designated by marking the production of any “Confidential 10
Information” with the words “CONFIDENTIAL” or “THIS DOCUMENT IS 11 12 SUBJECT TO A COURT ORDER IN RODRIGUEZ, ET AL. v. ROBBINS, ET

13 AL., No. 07-cv-3239 (C.D. Cal.). THIS DOCUMENT AND ITS CONTENTS 14
SHALL NOT BE USED, SHOWN OR DISTRIBUTED EXCEPT AS 15 16 PROVIDED IN THE PROTECTIVE ORDER ENTERED IN THIS ACTION.”

17

c.

“Confidential Information” contained in any statement made

18 during an oral deposition may be so designated through a statement made on the
19

20 record.

21

d. Information that is otherwise properly designated as

22 23 “Confidential Information” shall not be so designated or considered where the

24 detainee to whom the information refers has affirmatively consented to its

25 disclosure.

26

27

5. If a Party disagrees with a designation of “Confidential Information,”

28 it shall provide the designating party written notice of its challenge. If the parties

3

1 cannot resolve this dispute, a non-designating party may object to and challenge 2
the designation of any information as “Confidential Information” in a manner that 3 4 comports with Local Rules 37-1 and 37-2. The designating party bears the burden

5 of showing that information is confidential. Failure to challenge a designation

6 immediately does not waive a party’s ability to bring a later challenge.
7

8

6. Information designated as “Confidential Information,” including the

9 portion of any document containing “Confidential” information, may be disclosed

10 by a non-designating party only to the following persons:
11

12

a. counsel for the parties to this action and any support staff and

13 other employees of such counsel assisting in this action with an appropriate need

14 to know;
15

16

b. any experts retained for this action by counsel to a party or

17 support staff or employees of such an expert, subject to paragraph 9;
18 c. any other person mutually authorized by the parties’ counsel to
19

20 examine such information, subject to paragraph 9;

21

d. the Court and its personnel, including court reporters.

22

23

7. All persons listed in paragraph 6(a) to whom “Confidential”

24 information is disclosed are hereby prohibited from disclosing to, or otherwise

25 discussing with, any person other than those listed in paragraph 6(a)-(d), any
26 27 information designated as “Confidential Information,” except as provided in this

28 Stipulated Protective Order.

4

1

8. All persons listed in paragraphs 6(b) and 6(c) to whom “Confidential

2 Information” is disclosed shall first be required to read the terms of this Stipulated
3

4 Protective Order and sign a copy of the Acknowledgment of Protective Order

5 form, attached hereto as Exhibit A, agreeing to be bound thereby. This 6
requirement does not apply to the disclosure of Confidential Information to the 7 8 Court and its personnel, including court reporters.

9

9. In the event a party wishes to use any “Confidential Information”

10 produced under this Stipulated Protective Order to move the Court to resolve a
11

12 matter arising from litigating this action only, or to oppose such motion, such

13 pleadings shall be filed in accordance with Local Rule 79-5. 14
10. If a party expects to use “Confidential Information” at any hearing, 15 16 trial, or appellate proceeding in this action, the non-designating party shall provide

17 the designating party with sufficient opportunity to request that the Court exclude
18 the information from the public record.
19

20

11. Except as provided in this paragraph or elsewhere in this Stipulated

21 Protective Order, all discovery produced or exchanged that contains designated
22 23 “Confidential Information” shall be used solely for the purposes of litigating this

24 action and for no other purpose whatsoever and shall not be disclosed,

25 disseminated, or transmitted to any person, entity, or organization except in
26 27 accordance with the terms hereof.

28

5

1

a. Nothing in this Stipulated Protective Order shall preclude the

2 disclosure of any “Confidential Information” with respect to a detainee who
3

4 affirmatively consents to the disclosure of that information.

5

b. The limitations and restrictions on the disclosure of

6 “Confidential Information” under this Stipulated Protective Order shall not apply
7

8 to “Confidential Information” (1) that the Court has ordered Respondents to

9 produce, and (2) that comes from the requested A-File materials of an individual 10
who presently is or will be a class member. This exception does not apply to post11 12 order custody review worksheets that may be contained in an A-File. Because the

13 exception in this paragraph permits a class member to disclose the “Confidential 14
Information” described in this paragraph without restriction or limitation, 15 16 including through class counsel with a class member’s authorization or consent,

17 the exception described in this paragraph shall remain in effect only so long as
18 counsel for Petitioners remain as counsel for the certified class in this action.
19

20

c. The limitations and restrictions on “Confidential Information”

21 in this Stipulated Protective Order shall not apply with respect to information
22 23 obtained through a third-party source other than through discovery production.

24

d. This Stipulated Protective Order shall not preclude any party

25 from disclosing publicly-available information. 26

27

28

6

1

12. The parties shall maintain “Confidential Information” as follows:

2 a.
3

If the parties mutually agree that some “Confidential

4 Information” relates to individuals who were never class members, Counsel for

5 Petitioner shall destroy information related to those people within ten (10) days of 6
their mutual decision, and Counsel for Petitioner shall certify in writing to 7 8 Counsel for Respondents that such information has been destroyed. If the parties

9 do not agree, and if the Court determines that “Confidential Information” relates 10
to individuals who were never class members, then within ten (10) days of the 11 12 Court’s having made that determination, counsel for Petitioners shall destroy the

13 “Confidential Information” related to non-class members, and certify in writing to

14 Counsel for Respondents that such information has been destroyed.
15

16

b. Petitioners and anyone to whom “Confidential Information”

17 has been disclosed in accordance with paragraphs 6(a) through 6(c) shall maintain
18 all remaining “Confidential Information” pursuant to the terms of this Stipulated
19

20 Protective Order, subject to further order by this Court (this provision does not

21 apply to Confidential Information disclosed to and maintained by the Court and its
22 23 personnel, including court reporters). Within ten (10) days after the final

24 disposition of this action, including any and all appeals, all discovery and copies

25 thereof in the possession of Petitioners and anyone to whom “Confidential
26 27 Information” has been disclosed in accordance with paragraphs 6(a) – (c) shall be

28

7

1 returned to the producing parties or destroyed, at the option of the disclosing

2 party, except as this Court may otherwise order.
3

4

c. Notwithstanding subparagraph 12(b), counsel of record may

5 maintain a complete set of discovery for their records, provided that such counsel

6 maintain the confidential nature of the discovery.
7

8

13. Counsel for either party shall notify the other of any inadvertent

9 disclosure of information concerning any individual who is not a class member 10
and shall destroy information related to such individuals consistent with the terms 11 12 of paragraph 12(a).

13

14. Nothing in this Stipulated Protective Order shall be construed as a

14 waiver of any defense, right or claim by either party, nor shall this Stipulated
15

16 Protective Order affect the right of Respondents to seek additional protection

17 against the disclosure of any documents or materials, or of Petitioner to seek
18 additional disclosures.
19

20

15. Any party may apply to this Court at any time, upon proper notice,

21 for a modification of this Stipulated Protective Order with respect to the handling
22 23 or designation of any document or for any other purpose.

24

16. Nothing in this Stipulated Protective Order shall be taken to authorize

25 the disclosure of information otherwise barred from disclosure pursuant to Local
26 27 Rule 79-5.4.

28

8

1

17. This Stipulated Protective Order shall be binding upon any present or

2 future party to the Rodriguez, et al. v. Robbins, et al., No. 07-cv-3239-TJH
3

4 (RNBx) (C.D. Cal.), litigation.

5

18. This Stipulated Protective Order shall be effective and enforceable

6 upon entry by the Court, except that the Parties may agree to abide by its terms
7

8 prior to entry of any order.

9

19. The terms of this Stipulated Protective Order shall survive the

10 termination of this action proceeding after its final disposition for purposes of
11

12 enforcing this Stipulated Protective Order.

13

14

Dated: ___J_u_l_y__6_, 2011

15

ROBERT

16

United

________________________________________ N. BLOCK
States Magistrate Judge

17

18

19

20

21

22

23

24

25

26

27

28

9

1

EXHIBIT A

2 ACKNOWLEDGMENT OF STIPULATED PROTECTIVE ORDER
3

4 I, _________________________, am associated with the litigation in

5 Rodriguez, et al. v. Robbins, et al., No. 07-cv-3239-TJH (RNBx) (C.D. Cal.) in 6
the capacity of __________________________________. I acknowledge reading 7 8 and understanding the Stipulated Protective Order Governing Confidential

9 Information issued in Rodriguez on ____________, and agree to be bound by all

10 provisions thereof.
11

12

Executed this ___ day of ______ at ____________________.

13

SIGNATURE: _____________________________________

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10

1 PRESENTED BY: 2 TONY WEST
Assistant Attorney General 3 DAVID J. KLINE
Director, 4 Office of Immigration Litigation
District Court Section 5 VICTOR M. LAWRENCE
Principal Assistant Director 6 By: /s/ Theodore W. Atkinson
THEODORE W. ATKINSON 7 Senior Litigation Counsel
P.O. Box 868, Ben Franklin Station 8 Washington, DC 20044
Tel: (202) 532-4135 9 e-mail: theodore.atkinson@usdoj.gov 10 Attorneys for Respondents 11 By: /s/ Ahilan Arulanantham
AHILAN T. ARULANANTHAM 12 ACLU OF SOUTHERN CALIFORNIA 13 Attorneys for Petitioners 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
11

 
 Case 2:07-cv-03239-TJH-RNB Document 201 Filed 08/15/11 Page 1 of 2 Page ID #:2665

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES--GENERAL
Case No. CV 07-3239-TJH (RNBx)

Date: August 15, 2011

Title: Alejandro Rodriguez, et al. v. Timothy S. Robbins, et al. DOCKET ENTRY

PRESENT:
HON. ROBERT N. BLOCK, UNITED STATES MAGISTRATE JUDGE

Kerri Hays Deputy Clerk

n/a Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS:
None present

ATTORNEYS PRESENT FOR DEFENDANTS:
None present

PROCEEDINGS: (IN CHAMBERS)

Petitioners’ Motion for Reconsideration and/or Clarification of the Court’s July 25, 2011 Order, filed August 11, 2011

Petitioner’s Motion for Reconsideration isdenied. However, petitioner’s Motion for Clarification is granted as follows.
With respect to the A files of class members who were asylum applicants, based on its review and consideration of the language of 8 C.F.R. § 208.6, the Court acceded to the Government’s position. However, the Government did not contend in its portion of the Joint Stipulation regarding the partie s’ dispute over the disclosure of asylum related information that the language of 8 C.F.R. § 208. 6 required the Government to withhold in their entirety the A files of asylum applicants. Nor does the Court construe 8 C.F.R. § 208.6 as requiring the Government to withhold in their entirety the A files of asylum applicants. Accordingly, the Government may only withhold from the A files of class members who were asylumapplicants the applications, documents submitted in support of the applications, and any direct references to the applications, subject to the Government’s obligation to disclose that information for class members who provide written consent.
With respect to the A files of classmembers who were VAWA claimants or who were “T” or “U” visa applicants, based on its review and consideration of the language of 8 U.S.C. § 1367, the Court acceded to the Government’s position. The Government argued in the Joint Stipulation and the Cour t concurs that the language of 8 U.S.C. § 1367 does authorize the Government to withhold in their entirety the A files of VAWA claimants, and “T” or “U” visa applican ts. Moreover, in the Court’s view, the

MINUTES FORM 11 CIVIL-GEN

Initials of Deputy Clerk klh

Case 2:07-cv-03239-TJH-RNB Document 201 Filed 08/15/11 Page 2 of 2 Page ID #:2666

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES--GENERAL

Case No.: CV 07-3239-TJH (RNBx) Alejandro Rodriguez, et al. v. Timothy S. Robbins, et al.

August 15, 2011 Page 2

--------------------------------------------------------------------------------------------------------------------

compromise now proposed by plaintiffs would also contravene 8 U.S.C. § 1367. Accordingly, the Government may withhold intheir entirety the A files of class members who were VAWA claimants or who were “T” or “U” visa applicants, except for (a) those class members whose claims or applications have been denied on the merits and all opportunities for appeal of the denial have been exhausted, and (b) those class members who provide written consent.

cc: Judge Hatter

MINUTES FORM 11 CIVIL-GEN

Initials of Deputy Clerk klh

 
 Case 2:07-cv-03239-TJH-RNB Document 210 Filed 05/03/12 Page 1 of 9 Page ID #:2844

1

2

3

4

5

6

7

8

United States District Court

9

Central District of California

10

Western Division

11

12

ALEJANDRO RODRIGUEZ, et al.,

CV 07-3239 TJH (RNBx)

13

Petitioners,

14

v.

15

TIMOTHY S. ROBBINS, et al.,

Order

16

Respondents.

17

18

19

Pursuant to 28 U.S.C. § 636, the Court has reviewed Petitioners’ motion for

20 review of the Magistrate Judge’s order, together with moving and opposing papers,

21 and the records on file.

22

In the underlying class action, Petitioners challenge the constitutionality and

23 legality of detaining immigrants in the Central District of California, pursuant to 8

24 U.S.C. §§ 1225(b), 1226(a), 1226(c), 1231(a), for more than six months without a

25 bond hearing. Petitioners seek a writ of habeas corpus and request injunctive and

26 declaratory relief providing an individual bond hearing for each class member. On

Order – Page 1 of 9

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1 April 5, 2010, the Court certified the class, pursuant to Fed. R. Civ. Proc. 23(b)(2),

2 and divided it into four subclasses of detainees, corresponding to each of the four

3 immigration statutes at issue.

4

Since class certification, Petitioners and Respondents have disputed the

5 relevance and privileged nature of Petitioners’ discovery requests. Petitioners seek

6 production of specified information from the Department of Homeland Security’s

7 [“DHS”] Administrative Files [“A-Files”], for every individual who would have met

8 the class definition, starting from April 21, 2010. This encompasses an estimated

9 one thousand non-citizens. From the A-Files, Petitioners seek: 1. Documents

10 exchanged between a class member and the federal courts, or the Department of

11 Justice [“DOJ”], or the DHS (including Immigration and Customs Enforcement and

12 Customs and Border Protection [“CBP”]), or the U.S. Citizenship and Immigration

13 Services; 2. Post order custody review [“POCR”] worksheets concerning current

14 and former class members; and 3. Transcripts of any statements given by a

15 “detainee” to the DOJ or DHS officials, such as transcripts of removal hearings or

16 CBP interviews.

17

With respect to the parties’ relevance dispute, on July 29, 2011, the Court

18 affirmed the Magistrate Judge’s ruling that the requested information was relevant

19 pursuant to Fed. R. Civ. Proc. 26(b). Now, the parties dispute whether six statutory

20 confidentiality provisions preclude judicial discovery. The provisions govern the

21 disclosure of immigrant applications for: Asylum, 8 C.F.R. § 208.6; Citizenship

22 under the Violence Against Women Act [“VAWA”] and for “T” and “U” visas, 8

23 U.S.C. § 1367 [“VAWA, T & U”]; Battered spouse and children, 8 C.F.R. § 24 216.5(e)(3)(viii); Legalization, 8 U.S.C. § 1255a(c)(4)-(5); Special agricultural

25 workers [“SAW”] 8 U.S.C. § 1160(b)(5)-(6); and Temporary protected status 26 [“TPS”], 8 C.F.R. § 244.16.

Order – Page 2 of 9

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1

Petitioners have moved to compel production of the requested information

2 while Respondents moved for a protective order. On July 25, 2011, the Magistrate

3 Judge granted and denied portions of each parties’ motion. On August 15, 2011, on

4 motion for reconsideration, the Magistrate Judge confirmed and clarified the July

5 25, 2011 ruling. On August 29, 2011, Petitioners timely moved the Court to review

6 the Magistrate Judge’s August 15, 2011 order, which encompasses the July 25, 2011

7 order.

8

Between the two orders at issue, the Magistrate Judge interpreted the asylum

9 and VAWA, T & U provisions to mean the following: The asylum provision

10 precludes judicial discovery of information regarding the asylum application and any

11 credible fear determination, unless the applicant provides his or her written consent.

12 The VAWA, T & U provision precludes judicial discovery into an immigrant’s

13 entire A-File if he or she applied for relief under the VAWA or for a “T” or “U”

14 visa. However, Petitioners may obtain such A-Files if: The application was denied

15 on the merits and the immigrant exhausted all opportunities for appeal of the denial;

16 or The immigrant provided Petitioners with written consent. The Magistrate Judge

17 based the rulings on the statutory language of the respective provisions.

18

The Magistrate Judge, also, interpreted the remaining four disputed

19 confidentiality provisions to allow judicial discovery of applications for battered

20 spouse and children, legalization, SAW, and TPS, for class members currently

21 detained, but not for former class members. Disclosure of former class member

22 information would require written consent. The Magistrate Judge did not state the

23 reason for distinguishing between current and former class members.

24

District courts review a magistrate judge’s discovery order to determine if it

25 is “clearly erroneous or contrary to law.” United States v. Raddatz, 447 U.S. 667, 26 673-76, 100 S. Ct. 2406, 2411, 65 L. Ed. 2d 424, 431 (1980).

Order – Page 3 of 9

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1

The parties raise two issues with the Magistrate Judge’s orders that concern

2 the interpretation of the statutory confidentiality provisions: 1. Whether the asylum

3 and VAWA, T & U provisions preclude court-ordered judicial discovery; and 2.

4 Whether the battered spouse and children, SAW, legalization, and TPS provisions

5 preclude court-ordered judicial discovery of former class member information.

6

The asylum and VAWA, T & U confidentiality provisions do not foreclose

7 court ordered discovery. In general, Congress has used three forms of statutory

8 confidentiality provisions: Those that expressly bar disclosure in legal proceedings;

9 Those that expressly allow disclosure in legal proceedings; and Those that are silent

10 in this regard. Zambrano v. I.N.S., 972 F.2d 112, 1125 (1992), overruled on other

11 grounds in I.N.S. v. Zambrano, 509 U.S. 918, 113 S. Ct. 3028, 125 L. Ed. 2d 717,

12 717-18 (1993). The asylum provision falls somewhere between the second and third

13 category, while the VAWA, T & U provision falls into the third category.

14

Courts have a “duty to avoid a construction that would suppress otherwise

15 competent evidence unless the statute, strictly construed, requires such a result.”

16 St. Regis Paper Co. v. United States, 368 U.S. 208, 218, 82 S. Ct. 289, 295, 7 L.

17 Ed. 2d 240, 248 (1961). Thus, statutory provisions, generally forbidding disclosure

18 of information, do not bar judicial discovery absent an explicit prohibition against

19 such disclosure. St. Regis Paper Co., 368 U.S. at 218, 82 S. Ct. at 295, 7 L. Ed.

20 2d at 248. The asylum and VAWA, T & U provisions do not contain such an

21 express limitation. See 8 C.F.R. § 208.6; 8 U.S.C. § 1367.

22

Although no appellate court has addressed whether the asylum and VAWA,

23 T & U provisions prohibit a court from ordering discovery, the Ninth Circuit applied 24 the rule established in St. Regis Paper Co., 368 U.S. 208 to the statutory

25 confidentiality provision governing an immigrant’s application for legalization. 26 Zambrano, 972 F.2d 112 (interpreting 8 U.S.C. § 1255a(c)(4)-(5)). The court held

Order – Page 4 of 9

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1 that the provision did not prohibit judicial discovery because it lacked an explicit

2 command so stating. Zambrano, 972 F.2d at 1125-26. The court further reasoned

3 that disclosure facilitated, rather than frustrated, the statutory purpose to protect the

4 interest of immigrants applying for legalization. Zambrano, 972 F.2d at 1124-25.

5 Congress intended the confidentiality provision to encourage aliens to apply for

6 legalization by assuaging their fears that the government would use their information

7 to deport them. Zambrano, 972 F.2d at 1125. In Zambrano, disclosure to class

8 counsel was intended to protect and benefit the same group of people. Zambrano,

9 972 F.2d at 1124.

10

In this case, disclosure furthers the purpose of the statutory provisions, while

11 withholding the requested information undermines it. Just as in Zambrano, 972 F.2d

12 112, disclosure of class member information to class counsel, here, protects and

13 benefits the same group of people that Congress intended to protect and benefit. As

14 the Fourth Circuit noted, Congress designed the asylum provision to prevent foreign

15 government authorities and non-state actors from retaliating against asylum

16 applicants and their families. Anim v. Mukasey, 535 F.3d 243, 253 (4th Cir. 2008).

17 The VAWA and “T” and “U” visas grant victims of domestic violence, certain

18 serious crimes, and human trafficking, legal status to remain in the United States.

19 8 U.S.C. §§ 1101(a)(51), 1101(a)(15)(U), 1101(a)(15)(T). Congress intended the

20 confidentiality provision to prevent disclosure of an applicant’s information to the

21 persons who victimized the applicant. Hawke v. United States Dep’t of Homeland

22 Sec., 2008 WL 4460241, at *7 (N.D. Cal. 2008)(Whyte, J.); see 151 Cong. Rec.

23 E2605, E2607 (daily ed. Dec. 18, 2005). Neither provision was intended to shield 24 the government from inquiry into its mistreatment of applicant-immigrants. See

25 Anim, 535 F.3d at 253; Hawke, 2008 WL 4460241, at *7. A special danger lurks 26 behind allowing the government to define the scope of a privilege when it serves to

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1 hide the government’s misconduct.

2

Not only does the asylum provision fail to explicitly prohibit judicial

3 discovery, such court ordered disclosure squarely fits within one of its express

4 exceptions. 8 C.F.R. § 208.6(c)(2)(ii) specifically allows disclosure in: “any legal

5 action ... [a]rising from the proceedings of which the asylum application ... is a

6 part.” The asylum application “is a part” of the detention proceedings that

7 Petitioners challenge in this case. The application and its supporting documents

8 reveal the strength of the applicant’s claim against removal. The merits of an

9 asylum claim, also, weigh on the question of whether the government should release

10 the applicant from detention while awaiting the determination of their removal. That

11 some applicants did not present evidence of the merits of their claim at a proceeding

12 to argue their entitlement to release does not displace them from this exception. The

13 asylum applications still constitute “a part” of the immigration proceedings that

14 Petitioners challenge here.

15

Respondents point to no statutory language, legislative history, or case law to

16 support its position that Congress intended to limit subsection (ii) to proceedings in

17 which the confidential asylum information plays a “meaningful” role. In effect,

18 Respondents wish to reduce subsection (ii) to nothing more than subsection (i). If

19 the Court humored Respondents, then subsection (ii) would be completely

20 superfluous of subsection (i), which permits disclosure in a legal action, “[a]rising

21 from the adjudication of ... the asylum application.” 8 C.F.R. § 208.6(c)(2)(i). “It

22 is an elementary rule of construction that effect must be given, if possible, to every

23 word, clause and sentence of a statute.” Spencer v. World Vision, Inc., 633 F.3d 24 723, 743 (9th Cir. 2011). Congress intended subsection (ii) to encompass any legal

25 action arising from proceedings in which the asylum application merely constitutes 26 some “part,” regardless of how active or meaningful the role it played. 8 C.F.R.

Order – Page 6 of 9

Case 2:07-cv-03239-TJH-RNB Document 210 Filed 05/03/12 Page 7 of 9 Page ID #:2850

1 § 208.6(c)(2)(ii). Some one, or entity, need not actually litigate the merits of the

2 application before a tribunal for it to be “part” of a “proceeding.”

3

Nevertheless, the Court finds the information plays a significant role in these

4 proceedings. Not only does the information go directly to the due process inquiry

5 before the Court, the protected documents, more often than not, constitute the only

6 available source of information about a substantial number of class members.

7 Asylum applicants compose a majority of the 8 U.S.C. § 1225(a) sub-class and

8 about twenty five percent of all class members. These applicants, generally, do not

9 have any prior contact with immigration authorities and do not apply for other forms

10 of relief.

11

Similar to the asylum and VAWA, T & U provisions, the battered spouse and

12 children, SAW, legalization, and TPS statutory confidentiality provisions do not

13 foreclose the Court from compelling Respondents to disclose confidential

14 information about former class members to Petitioners. None of the confidentiality

15 provisions at issue contain an express prohibition against court-ordered civil

16 discovery. See 8 C.F.R. §§ 216.5(e)(3)(viii) (battered spouse and children), 244.16

17 (TPS); 8 U.S.C. §§ 1160(b)(5)-(6) (SAW), 1255a(c)(4)-(5) (legalization). Thus, the

18 requested documents are not privileged so as to preclude class counsel from

19 discovering them. See St. Regis Paper Co., 368 U.S. at 218, 82 S. Ct. at 295, 7 L.

20 Ed. 2d at 248; Zambrano, 972 F.2d at 1125-26.

21

Furthermore, the structure of the case makes it impracticable to distinguish

22 between former and current class members at this stage in litigation. Inevitably,

23 during the litigation, many, if not all, “current” class members will become 24 “former” class members. By April 18, 2011, about one year prior to this date and

25 one year after class certification, the government already released from custody sixty 26 five percent of the class. At this stage in the litigation, the distinction between

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1 current and former class members constitutes nothing more than a line drawn in the

2 sand on a windy day. The parties will needlessly expend resources attempting to

3 separate scattered grains of sand, blowing about from one side of the line to the

4 other, at much too early a stage in the litigation process for it to entail anything more

5 than an utter waste of time and money for all involved.

6

A contrary ruling would deprive Petitioners of meaningful discovery.

7 Petitioners have almost no reasonable way of contacting former class members to

8 obtain their written consent. The sought-after information remains relevant even

9 after the government releases a detainee. See Fed. R. Civ. Proc. 26(b). Moreover,

10 it would be inequitable for Respondents to retain the power to bury a file by simply

11 releasing a detainee, changing his or her status from “current” to “former” class

12

member.

13

In sum, the interpretation of the asylum and VAWA, T & U statutory

14 confidentiality provisions, to preclude court ordered disclosure, constitutes clear

15 error. It, also, constitutes clear error to distinguish between former and current

16 class members, when it comes to Petitioners’ entitlement to discovery into persons

17 who have met the class definition after certification, given the lack of a statutory

18 mandate against court-ordered judicial disclosure and the structure of this case. A

19 protective order from the Court, along with class counsel’s duty of confidentiality,

20 to current and former class members, will suffice to protect the confidentiality of

21 current and former class members’ information. Rodriguez v. West Publishing

22 Corp., 563 F.3d 948, 968 (9th Cir. 2009); City and County of San Francisco v.

23 24 25 26

. . . . . Cobra Solutions, Inc., 38 Cal. 4th 839, 846-47, 43 Cal. Rptr. 3d 771, 776 (2006). . . . . . . . . . .

Order – Page 8 of 9

Case 2:07-cv-03239-TJH-RNB Document 210 Filed 05/03/12 Page 9 of 9 Page ID #:2852

1

Accordingly, it is Ordered that:

2

1. Petitioners’ motion for review be, and hereby is, Granted.

3

2. Within thirty days of the date of this order, the parties shall submit a

4

stipulation to the Magistrate Judge for the purpose of maintaining the

5

confidentiality of the compelled information.

6

3. After the Magistrate Judge accepts the stipulation, or issues its own

7

order, regarding confidentiality, Respondents shall produce the requested

8

information to Petitioners in a manner consistent with this order.

9
10 Date: May 3, 2012
11

___________________________________

12

Terry J. Hatter, Jr.

13

Senior United States District Judge

14

15

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Order – Page 9 of 9

 
 Case 2:07-cv-03239-TJH-RNB Document 218 Filed 06/06/12 Page 1 of 2 Page ID #:2926

1

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8

9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11

WESTERN DIVISION

12

ALEJANDRO RODRIGUEZ, et al., | Case No. CV 07-3239-TJH (RNBx)

13

|

14

Petitioners,

| |

ORDER GRANTING JOINT

v.

| STIPULATION FOR PARTIAL

15
TIMOTHY S. ROBBINS, in his 16 capacity as U.S. Immigration and

| | |

VACATUR OF MAY 3, 2012 ORDER ON PETITIONERS’ MOTION FOR REVIEW

Customs Enforcement, Los Angeles | [215]

17 District Field Office Director, et al., |

18

Respondents.

| |

Hon. Terry J. Hatter, Jr.

|

19

20

The parties’ joint stipulation for partial vacatur of this Court’s May 3, 2012

21 Order granting Petitioners’ August 29, 2011 motion for review came before this Court

22 on June 1, 2012.

23

After full consideration of the joint stipulation, and good cause appearing, the

24 parties’ request for partial vacatur of this Court’s May 3, 2012 order [ECF # 210] is

25 GRANTED.

26

Accordingly, it is Ordered that:

27

1. The Court’s May 3, 2012 order [ECF # 210] is vacated to the extent it

28 granted the motion for review as to the statutory and regulatory provisions governing

Case 2:07-cv-03239-TJH-RNB Document 218 Filed 06/06/12 Page 2 of 2 Page ID #:2927

1 the disclosure of (1) Violence Against Women Act (“VAWA”) information 2 contemplated by 8 U.S.C. § 1101(a)(51) concerning any abused alien spouse, child or 3 parent, including information regarding the whereabouts of such spouse, child or 4 parent, and (2) “T” or “U” visa related information pertaining to an application or

5 beneficiary under 8 U.S.C. §§ 1101(a)(15)(T) and (U).

6

2. The Magistrate Judge’s August 15, 2011 order, which encompasses the

7 Magistrate Judge’s July 25, 2011order, shall continue to govern the disclosure of

8 VAWA related information and “T” and “U” visa related information in this action.

9

3. No other portion of this Court’s May 3, 2012 order is vacated or

10 modified.

11

12 Date: June 6, 2012

13

____________

14

15

Senior

_______________________ Terry J. Hatter, Jr.
United States District Judge

16

17

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22

23

24

25

26

27

28

 
 1

2

3

4

5

6

7

8

9

10

11

12

13

UNITED STATES DISTRICT COURT

14

CENTRAL DISTRICT OF CALIFORNIA

15

WESTERN DIVISION

16

ALEJANDRO RODRIGUEZ, et al., ) Case No. CV 07-3239-TJH (RNBx)

17

)

18

Petitioners,

) )

DISCOVERY MATTER

vs.

)

19

) [PROPOSED] STIPULATED

TIMOTHY S. ROBBINS, in his 20 capacity as U.S. Immigration and
Customs Enforcement, Los Angeles

) ) )

PROTECTIVE ORDER GOVERNING CONFIDENTIAL AND HIGHLY

21 District Field Office Director;

) CONFIDENTIAL INFORMATION

JANET NAPOLITANO, in her

)

22

capacity as Secretary of Homeland Security; and ERIC H. HOLDER, JR.,

) )

Hon.

Robert N.

Block

23 in his capacity as Attorney General of )

the United States,

)

24

)

Respondents.

)

25

)

26

27

28

1

This matter comes before this Court on the parties’ joint stipulation for the

2 entry of a protective order governing confidential and highly confidential
3

4 information. The parties each submitted a proposed protective order following a

5 decision issued on May 3, 2012, in which the District Court ordered the 6
Government to disclose what is hereinafter designated as “Highly Confidential 7 8 Information,” based on that court’s factual and legal conclusions that such

9 disclosure is consistent with statutory and regulatory language found in 8 U.S.C. § 10
1367 and 8 C.F.R. § 208.6. Good cause exists for the entry of a protective order 11 12 because discovery in this action has and will result in the disclosure by the parties

13 of information from electronic databases, administrative files (or “A-Files”), and 14
other sources concerning members of the class certified in this action and other 15 16 individuals, including (1) confidential personal and non-privileged information

17 and (2) certain categories of highly confidential information generally restricted
18 from unauthorized disclosure by statute or regulation. The Court having found
19

20 that good cause exists for issuance of an appropriately-tailored confidentiality

21 order governing the pre-trial phase of this action, it is

22

23

HEREBY ORDERED that this Court’s July 6, 2011 Protective Order (ECF

24 188) is hereby superseded as follows:

25

I. Authorization to Produce Information Protected by the Privacy Act –

26

27 Pursuant to 5 U.S.C. § 552a(b)(11), this Order authorizes Respondents to produce

28 private identifying information and other information discoverable pursuant to

1

1 Fed. R. Civ. P. 26(c) that Petitioners seek without requiring officials of the United 2
States to pre-screen each document for objections under the Privacy Act, 5 U.S.C. 3 4 § 552a, and present those objections to this Court for a decision regarding

5 disclosure. 6
II. Scope – The terms of this Order will govern the parties’ production 7 8 of information in response to discovery requests, to the extent that such production

9 contains information designated as “Confidential Information” or “Highly 10
Confidential Information” as defined in this Order. The terms of this Order shall 11 12 also govern the safeguarding of such information by all individuals referenced in

13 this Order.

14 III. Definitions and Designation of Protected Information –
15

16

(a).

Definitions –

17

(1).

“Confidential Information” – As used in this Order,

18 “Confidential Information” is defined as any information not publicly available
19

20 that is disclosed by the parties in this action and which at or before the time of

21 disclosure has been designated as “Confidential Information” by the parties in
22 23 accordance with paragraph III(b). The disclosure of all information that the

24 parties previously agreed to keep confidential, or which was designated as

25 “Confidential Information” under the July 6, 2011 Protective Order [ECF 188],
26 27 shall now be governed by this Order. “Confidential Information” is the following:

28 (1) the names, alien numbers, locations of, or any other identifying information

2

1 which would allow the identification of the particular individual(s) to whom the 2
information relates, (2) individual medical information, (3) certain individual 3 4 financial and tax information, (4) non-public divorce decrees, (5) identity
5 information on law enforcement officials; (6) any information the parties 6
previously agreed to include within the definition of “Confidential Information,” 7 8 and (7) any other category of information hereinafter given confidential status by
9 the Court. If a designating party determines that information not described in this 10
paragraph should be included within the definition of “Confidential Information,” 11 12 the parties shall negotiate the appropriateness of that designation in good faith and
13 endeavor to resolve any dispute prior to the production of that information. 14
Information that is not “Confidential Information” includes, but is not limited to, 15 16 aggregate information concerning class members that does not permit the
17 identification of the particular individuals to whom the information relates. 18
(2). “Highly Confidential Information” – As used in this 19 20 Order, “Highly Confidential Information” is defined as any information not
21 publicly available that is disclosed by the parties in this action and which at or 22 23 before the time of disclosure has been designated as “Highly Confidential 24 Information” by the parties in accordance with paragraph III(b). “Highly
25 Confidential Information” is the following: (1) information contained in or 26 27 pertaining to asylum claims or applications, including applications for relief under
28 the Convention Against Torture (“CAT”) and refugee information; (2) information
3

1 contained in or pertaining to legalization applications under 8 U.S.C. § 1255a; (3) 2
information contained in or pertaining to Special Agricultural Worker applications 3 4 under 8 U.S.C. § 1160; (4) information contained in or pertaining to applications

5 for temporary protected status (“TPS”) under 8 U.S.C. § 1254a; (5) information 6
contemplated by 8 U.S.C. § 1186a(c)(4)(C) concerning any abused alien spouse or 7 8 child, including information regarding the whereabouts of such spouse or child

9 (see 8 C.F.R. §§ 216.5(a)(1)(iii) and 1216.5(a)(1)(iii); 8 U.S.C. § 10
1154(a)(1)(A)(iii), (iv), (v), and (vi); 8 U.S.C. § 1154(a)(1)(B)(ii), (iii) and (iv)); 11 12 and (6) any other category of information hereinafter given “Highly Confidential”

13 status by the Court. Information that is not “Highly Confidential Information” 14
includes, but is not limited to, aggregate information concerning class members 15 16 that does not permit the identification of the particular individuals to whom the

17 information relates. If a designating party determines that information not
18 described in this paragraph should be designated as “Highly Confidential
19

20 Information,” the parties shall negotiate the appropriateness of that designation in

21 good faith and endeavor to resolve any dispute prior to the production of that
22 23 information.

24

(b). Designation – “Confidential Information” and “Highly

25 Confidential Information” may be designated by the parties in one or more of the
26 27 following ways:

28

4

1

(1). “Confidential Information” set forth in a response to an

2 interrogatory may be so designated by including the word “Confidential” in the
3

4 response. “Highly Confidential Information” set forth in a response to an

5 interrogatory may be so designated by including the words “Highly Confidential

6 Information” in the response.
7

8

(2).

“Confidential Information” contained in a document or

9 part thereof may be so designated by marking the production of any “Confidential 10
Information” with the words “CONFIDENTIAL.” “Highly Confidential 11 12 Information” contained in a document or part thereof shall be so designated by

13 marking the production of any “Highly Confidential Information” with the words 14
“HIGHLY CONFIDENTIAL – AUTHORIZED PERSONNEL ONLY”. The 15 16 designating party may also mark the production with the words “THIS

17 DOCUMENT IS SUBJECT TO A COURT ORDER IN RODRIGUEZ, ET AL. v.
18 ROBBINS, ET AL., No. 07-cv-3239 (C.D. Cal.). THIS DOCUMENT AND ITS
19

20 CONTENTS SHALL NOT BE USED, SHOWN OR DISTRIBUTED EXCEPT

21 AS PROVIDED IN THE PROTECTIVE ORDER ENTERED IN THIS
22 23 ACTION.”

24

(3).

“Confidential Information” or “Highly Confidential

25 Information” contained in any statement made during an oral deposition may be so
26 27 designated through a statement made on the record.

28

5

1

(4). Information that is otherwise properly designated as

2 “Confidential Information” or “Highly Confidential Information” shall not be so
3

4 designated or considered where the detainee to whom the information refers has

5 affirmatively consented to the non-confidential treatment of the disclosed 6
information, and that consent is presented in writing to the designating party prior 7 8 to disclosure.

9

(c).

Contesting Designation– If a party disagrees with a designation

10 of “Confidential Information” or “Highly Confidential Information,” it shall
11

12 provide the designating party written notice of its challenge. If the parties cannot

13 resolve this dispute, a non-designating party may object to and challenge the 14
designation of any information as “Confidential Information” or “Highly 15 16 Confidential Information” in a manner that comports with Local Rules 37-1 and

17 37-2. The designating party bears the burden of showing that information is
18 confidential. Failure to challenge a designation immediately does not waive a
19

20 party’s ability to bring a later challenge.

21

IV. Permitted Disclosure of Protected Information –

22

23

(a).

Information designated as “Confidential Information,”

24 including the portion of any document containing “Confidential Information,”

25 may be disclosed by a non-designating party only to the following persons: 26

27

28

6

1

(1).

Counsel – Counsel for the parties to this action and any

2 support staff and other employees of such counsel assisting in this action with an
3

4 appropriate need to know;

5

(2).

Experts and Staff – Any expert as defined in Federal

6 Rule of Civil Evidence 702 who has been retained by a party or its counsel to
7

8 serve as an expert witness or as a consultant in this action, or support staff or

9 employees of such an expert. Any such expert or any support staff or employees 10
of such an expert shall first be required to read the terms of this Order and sign a 11 12 copy of the Acknowledgment of Protective Order form, attached hereto as Exhibit

13 A.

14

(3).

Authorized Others – Any other person mutually authorized by

15

16 the parties’ counsel to examine such information. Any such person shall first be

17 required to read the terms of this Order and sign a copy of the Acknowledgment of
18 Protective Order form, attached hereto as Exhibit A.
19

20

(4).

The Court – The Court and its personnel, including court

21 reporters.

22

23

(b). Permitted Disclosure of “Highly Confidential Information” –

24 Information designated as “Highly Confidential Information,” including the

25 portion of any document containing “Highly Confidential Information,” may be
26 27 disclosed by a non-designating party only to the following persons, and in the

28 following manner:

7

1

(1)

Counsel for Respondents – Counsel for Respondents, and their

2 support staff and employees. Unless otherwise ordered by the Court and except
3

4 where disclosure is made by Respondents to counsel for Respondents, “Highly

5 Confidential Information” disclosed by a designating party to counsel for 6
Respondents shall be disclosed in an encrypted format other than through 7 8 electronic mail (e.g., DVD, CD, flash drive, etc.), accompanied by a cover letter of

9 transmittal from the designating party identifying the date of transmittal, the Bates 10
Numbers of the documents, and describing the medium of transmittal (e.g., DVD, 11 12 CD, flash drive, etc.), and shall be delivered by means permitting the tracking of

13 delivery (e.g., Federal Express, UPS, etc.).

14

(2).

Class Counsel – Counsel for Petitioners who have entered their

15

16 appearance and whose appearance has not been terminated and support staff or

17 other employees of such counsel assisting in this action with an appropriate need
18 to know. Except for Class Counsel who entered their appearance as of June 12,
19

20 2012, any such counsel or support staff or employee of such counsel to whom

21 “Highly Confidential Information” is disclosed shall first be required to read the
22 23 terms of this Order and sign a copy of the Acknowledgment of Protective Order

24 form, attached hereto as Exhibit A. If any Class Counsel cease to represent

25 Petitioners, for whatever reason, such counsel shall no longer be cleared to access
26 27 any “Highly Confidential Information.” Unless otherwise ordered by the Court,

28 “Highly Confidential Information” produced by a designating party to Class

8

1 Counsel shall be produced in an encrypted format other than through electronic 2
mail (e.g., DVD, CD, flash drive, etc.), accompanied by a cover letter of 3 4 transmittal from the designating party identifying the date of transmittal, the Bates

5 Numbers of the documents, and describing the medium of transmittal (e.g., DVD, 6
CD, flash drive, etc.), and shall be delivered by means permitting the tracking of 7 8 delivery (e.g., Federal Express, UPS, etc.). Class Counsel have a duty to

9 safeguard the information contained therein, from unauthorized disclosure. Class 10
counsel shall also maintain a copy of each and every signed Acknowledgment of 11 12 Protective Order required by this Order.

13

(3)

Experts – An expert, as defined in Fed R. Evid. 702, who has

14 been retained by a party or its counsel to serve as an expert witness or as a
15

16 consultant in this action, and support staff or other employees of such expert

17 assisting in this action with an appropriate need to know. Any such expert or
18 support staff or employee of such expert to whom “Highly Confidential
19

20 Information” is disclosed shall first be required to read the terms of this Order and

21 sign a copy of the Acknowledgment of Protective Order form, attached hereto as
22 23 Exhibit A. Once the parties have identified their experts in accordance with

24 Federal Rule of Civil Procedure 26 and the Local Rules, each non-designating

25 party shall identify each of that party’s experts to whom “Highly Confidential
26 27 Information” has been disclosed and shall provide to the designating party copies

28

9

1 of each Acknowledgements of Protective Order, attached hereto as Exhibit A,

2 signed in accordance with this paragraph.
3

4

(4) Authorized Others – Any other person mutually authorized by the

5 parties’ counsel to examine such information. Any such person shall first be 6
required to read the terms of this Order and sign a copy of the Acknowledgment of 7 8 Protective Order form, attached hereto as Exhibit A.

9

10 reporters.
11

12

V.

(5) The Court – The Court and its personnel, including court Restrictions on Disclosure of Protected Information – All persons

13 listed in paragraphs 4(a)(1) and 4(b)(2) to whom “Confidential Information” or 14
“Highly Confidential Information” is disclosed are hereby prohibited from 15 16 disclosing to, or otherwise discussing with, any person other than those listed in

17 paragraphs IV(a)(2) to IV(a)(4); IV(b)(1); and IV(b)(3) to IV(b)(5) any
18 information designated as “Confidential Information” or “Highly Confidential
19

20 Information” except as otherwise provided in this Order.

21

VI. Except as provided in this paragraph or elsewhere in this Order, all

22 23 discovery produced or exchanged that contains designated “Confidential

24 Information” or “Highly Confidential Information” shall be used solely for the

25 purposes of litigating this action and for no other purpose whatsoever and shall not
26 27 be disclosed, disseminated, or transmitted to any person, entity, or organization

28 except in accordance with the terms hereof.

10

1

(a). Nothing in this Order shall preclude the disclosure of any

2 “Confidential Information” or “Highly Confidential Information” with respect to a
3

4 detainee who affirmatively consents to the disclosure of that information. Because

5 the exception in this paragraph permits a class member to disclose the 6
“Confidential Information” or “Highly Confidential Information” described in this 7 8 paragraph without restriction or limitation, including through class counsel with a

9 class member’s authorization or consent, the exception described in this paragraph 10
shall remain in effect only so long as counsel for Petitioners remain as counsel for 11 12 the certified class in this action.

13

(b). The limitations and restrictions on “Confidential Information”

14 or “Highly Confidential Information” in this Order shall not apply with respect to
15

16 information obtained through a third-party source other than through discovery

17 production.
18 (c).
19

This Order shall not preclude any party from disclosing

20 publicly-available information.

21

VII. The parties shall maintain “Confidential Information” and “Highly

22 23 Confidential Information” as follows:

24

(a).

If the parties mutually agree that some “Confidential

25 Information” or “Highly Confidential Information” relates to individuals who
26 27 were never class members, Counsel for Petitioner shall destroy information related

28 to those people within ten (10) days of their mutual decision, and Counsel for

11

1 Petitioner shall certify in writing to Counsel for Respondents that such 2
information has been destroyed. If the parties do not agree, and if the Court 3 4 determines that “Confidential Information” or “Highly Confidential Information”

5 relates to individuals who were never class members, then within ten (10) days of 6
the Court’s having made that determination, counsel for Petitioners shall destroy 7 8 the “Confidential Information” or “Highly Confidential Information” related to

9 non-class members, and certify in writing to Counsel for Respondents that such

10 information has been destroyed.
11

12

(b). Counsel for either party shall notify the other of any

13 inadvertent disclosure of “Confidential Information” or “Highly Confidential 14
Information” and concerning any individual who is not a class member and shall 15 16 destroy information related to such individuals consistent with the terms of

17 paragraph VII(a).
18 (c). Petitioners and anyone to whom “Confidential Information” or
19

20 “Highly Confidential Information” has been disclosed in accordance with

21 paragraph III shall maintain all remaining “Confidential Information” or “Highly
22 23 Confidential Information” pursuant to the terms of this Order, subject to further

24 order by this Court (this provision does not apply to “Confidential Information” or

25 “Highly Confidential Information” disclosed to and maintained by the Court and
26 27 its personnel, including court reporters). Within ten (10) days after the final

28 disposition of this action, including any and all appeals, all discovery and copies

12

1 thereof in the possession of Petitioners and anyone to whom “Confidential 2
Information” or “Highly Confidential Information” has been disclosed in 3 4 accordance with paragraph III shall be returned to the producing parties or

5 destroyed, at the option of the disclosing party, except as this Court may otherwise 6
order, and, if destroyed, certify in writing to Counsel for Respondents that such 7 8 information has been destroyed.

9

(d).

Notwithstanding paragraphs VII(a)-(c), counsel of record may

10 maintain a complete set of discovery for their records, provided that such counsel
11

12 maintain the confidential nature of the discovery.

13

VIII. In the event a party wishes to use any “Confidential Information” or

14 “Highly Confidential Information” produced under this Stipulated Protective
15

16 Order to move the Court to resolve a matter arising from litigating this action

17 only, or to oppose such motion, such pleadings shall be filed in accordance with
18 Local Rule 79-5. If a party expects to use “Confidential Information” or “Highly
19

20 Confidential Information” at any hearing, trial, or appellate proceeding in this

21 action, the non-designating party shall provide the designating party with
22 23 sufficient opportunity to allow the parties to prepare a joint stipulation, or for the

24 designating party to otherwise request that the Court exclude the information from

25 the public record. Any Document filed with the Court that contains “Confidential
26 27 Information” or “Highly Confidential Information” must have a cover page clearly

28 marked with the words “CONFIDENTIAL – AUTHORIZED PERSONNEL

13

1 ONLY” and each page of the Document in which “Confidential Information”

2 appears must be marked with the same designation at the top of the page.
3

4

IX. Nothing in this Order shall be construed as a waiver of any defense,

5 right or claim by either party, nor shall this Order affect the right of Respondents 6
to seek additional protection against the disclosure of any documents or materials, 7 8 or of Petitioner to seek additional disclosures.

9

X. Any party may apply to this Court at any time, upon proper notice,

10 for a modification of this Order with respect to the handling or designation of any
11

12 document or for any other purpose.

13

XI. Nothing in this Order shall be taken to authorize the disclosure of

14 information otherwise barred from disclosure pursuant to Local Rule 79-5.4.
15

16

XII. This Order shall be binding upon any present or future party to the

17 Rodriguez, et al. v. Robbins, et al., No. 07-cv-3239-TJH (RNBx) (C.D. Cal.),
18 litigation.
19

20

XIII. This Order shall be effective and enforceable upon entry by the

21 Court, except that the Parties may agree to abide by its terms prior to entry of any
22 23 order.

24 //

25 //
26 27 //

28

14

1

XIV. The terms of this Order shall survive the termination of this action

2 proceeding after its final disposition for purposes of enforcing this Order.
3

4 Dated: June 15, 2012

5

________________________________

________

6

ROBERT

United

7

N. BLOCK States Magistrate Judge

8

9

10

11

12

13

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21

22

23

24

25

26

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15

1

EXHIBIT A

2 ACKNOWLEDGMENT OF STIPULATED PROTECTIVE ORDER
3

4

I, _________________________, am associated with the litigation in

5 Rodriguez, et al. v. Robbins, et al., No. 07-cv-3239-TJH (RNBx) (C.D. Cal.) in 6
the capacity of __________________________________. I acknowledge reading 7 8 and understanding the Protective Order Governing Confidential Information

9 issued in Rodriguez on ____________, and agree to be bound by all provisions

10 thereof.
11

12

I also understand that information defined as “Highly Confidential

13 Information” under the Protective Order, which I have received and read, may be 14
disclosed to me. I understand that information designated as “Highly Confidential 15 16 Information” may be particularly serious and may carry with it identifiable risks

17 and dangers if disclosed to anyone not authorized to receive “Highly Confidential
18 Information” in accordance with paragraph IV of the Protective Order Governing
19

20 Confidential Information.

21 For these reasons, I specifically acknowledge the disclosure limits and
22 23 restrictions of paragraph IV of the Protective Order, and specifically agree to

24 follow that provision and all other provisions of the Protective Order.

25

26

Executed this ___ day of ______ at ____________________.

27

SIGNATURE: _____________________________________

28

16

1 PRESENTED BY: 2 STUART F. DELERY
Acting Assistant Attorney General 3 DAVID J. KLINE
Director, 4 Office of Immigration Litigation
District Court Section 5 VICTOR M. LAWRENCE
Principal Assistant Director 6 By: /s/ Theodore W. Atkinson
THEODORE W. ATKINSON 7 Senior Litigation Counsel
P.O. Box 868, Ben Franklin Station 8 Washington, DC 20044
Tel: (202) 532-4135 9 e-mail: theodore.atkinson@usdoj.gov 10 Attorneys for Respondents 11 By: /s/ Ahilan Arulanantham
AHILAN T. ARULANANTHAM 12 ACLU OF SOUTHERN CALIFORNIA 13 Attorneys for Petitioners 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
17

 
 Case 2:07-cv-03239-TJH-RNB Document 255 Filed 09/13/12 Page 1 of 2 Page ID #:3501

1

2

3

4

5

6

7

8

United States District Court

9

Central District of California

10

Western Division

11

12 ALEJANDRO RODRIGUEZ, et al.,

13

Petitioners,

SACVCV07c1o-01n3-s02o13li29d8-aT7te-JdTHJw(HR/(NRBNxB) x)

14

v.

Order

15 TIMOTHY S. ROBBINS, et al.,

and

16

Respondents.

Prelimina[2ry32I]njunction

17

18

The Court has considered Petitioners’ motion for a preliminary injunction,

19 together with the moving and opposing papers.

20

21

It is Ordered that the motion be, and hereby is, Granted.

22

23

The Court finds that Petitioners have demonstrated a substantial likelihood of

24 success on the merits, that they will suffer irreparable injury in the absence of a

25 preliminary injunction, and that the balance of hardships tip sharply in their favor.

26

27

It is further Orderedthat Respondents and their agents, employees, assigns, and

28 all those acting in concert with them, are preliminarily enjoined as follows:

Order – Page 1 of 2

Case 2:07-cv-03239-TJH-RNB Document 255 Filed 09/13/12 Page 2 of 2 Page ID #:3502

1

1. Within thirty days of the date of this order, Respondents shall identify all

2

members of the Section 1225(b) and Section 1226(c) Subclasses and provide each

3

of them with a bond hearing before an Immigration Judge with power to grant

4

their release. The Immigration Judge shall release each Subclass member on

5

reasonable conditions of supervision, including electronic monitoring if

6

necessary, unless the government shows by clear and convincing evidence that

7

continued detention is justified based on his or her danger to the community or

8

risk of flight.

9

2. The bond hearings shall be recorded, so that transcriptions will be available

10

in the event of any appeal.

11

3. Within thirty days of the date of this Order, Respondents shall develop a

12

system to timely identify all future Subclass members and ensure that they

13

receive such bond hearings.

14
15 Date: September 13, 2012
16

__________________________________

17

Terry J. Hatter, Jr.

18

Senior United States District Judge

19

20

21

22

23

24

25

26

27

28

Order – Page 2 of 2

 
 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ALEJANDRO RODRIGUEZ; ABDIRIZAK ADEN FARAH; JOSE FARIAS CORNEJO; YUSSUF ABDIKADIR; ABEL PEREZ RUELAS, for themselves and on behalf of a class of similarlysituated individuals,
Petitioners-Appellees,
and

No. 12-56734 D.C. No.
2:07-cv-03239TJH-RNB
OPINION

EFREN OROZCO,

Petitioner,

v.

TIMOTHY ROBBINS, Field Office Director, Los Angeles District, Immigration and Customs Enforcement; JANET NAPOLITANO, Secretary, Homeland Security; ERIC H. HOLDER, JR., Attorney General; WESLEY LEE, Assistant Field Office Director, Immigration and Customs Enforcement; RODNEY PENNER, Captain, Mira Loma Detention Center; SANDRA HUTCHENS, Sheriff of Orange County; OFFICER NGUYEN, Officer-in-Charge, Theo Lacy Facility; CAPTAIN DAVIS

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NIGHSWONGER, Commander, Theo Lacy Facility; CAPTAIN MIKE KREUGER, Operations Manager, James A. Musick Facility; ARTHUR EDWARDS, Officer-in-Charge, Santa Ana City Jail; RUSSELL DAVIS, Jail Administrator, Santa Ana City Jail; JUAN P. OSUNA, Director, Executive Office for Immigration Review,
Respondents-Appellants.

Appeal from the United States District Court for the Central District of California
Terry J. Hatter, Senior District Judge, Presiding
Argued and Submitted March 4, 2013—Pasadena, California
Filed April 16, 2013
Before: Kim McLane Wardlaw and Ronald M. Gould, Circuit Judges, and Sam E. Haddon, District Judge.*
Opinion by Judge Wardlaw

* The Honorable Sam E. Haddon, District Judge for the U.S. District Court for the District of Montana, sitting by designation.

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SUMMARY**

Immigration
The panel affirmed the district court’s grant of a preliminary injunction in favor of a certified class of noncitizens who challenge their prolonged detentions, requiring the government to identify those detained in subclasses pursuant to 8 U.S.C. § 1226(c) (certain criminal or terrorist aliens) and § 1225(b) (arriving aliens), and to provide each with an individualized bond hearing before an Immigration Judge.
The panel held that petitioners-appellees were likely to succeed on the merits of their claim that § 1225(b) must be construed to authorize only six months of mandatory detention, after which detention is authorized by § 1226(a) and a bond hearing is required. The panel also held that the preliminary injunction is necessary to ensure that individuals whom the government could not prove constitute a flight risk or danger to public safety are not needlessly detained, and that appellees therefore clearly showed a risk of irreparable harm.

COUNSEL
Theodore W. Atkinson (argued), Stuart F. Delery, August Flentje, David J. Kline, United States Department of Justice, Washington, D.C., for Appellants.
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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Ahilan T. Arulanantham (argued), Michael Kaufman, ACLU Foundation of Southern California, Los Angeles, California; Judy Rabinovitz and Michael Tan, ACLU Immigrants’ Rights Project, New York, New York; Jayashri Srikantiah, Stanford Law School Immigrants’ Rights Clinic, Stanford, California; Sean Commons and Cody Jacobs, Sidley Austin LLP, Los Angeles, California, for Appellees.

Angel L. Tang, Marco J. Martemucci, and Elizabeth S. St. John, Arnold & Porter LLP, Los Angeles, California, for Amici Curiae professors and researchers of sociology, criminology, anthropology, and law.

Sarah H. Paoletti, Elizabeth Freed, and Suniti Mehta, University of Pennsylvania Law School Transnational Legal Clinic, Philadelphia, Pennsylvania, for Amici Curiae international law professors and human rights clinics and clinicians.

OPINION
WARDLAW, Circuit Judge:
Alejandro Rodriguez, Abdirizak Aden Farah, Jose Farias Cornejo, Yussuf Abdikadir, and Abel Perez Ruelas (“Appellees”) are the named plaintiffs representing a certified class of non-citizens who challenge their prolonged detention, pursuant to certain federal immigration statutes, without individualized bond hearings and determinations to justify

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their continued detention.1 The district court entered a preliminary injunction requiring the government to identify all class members detained pursuant to 8 U.S.C. §§ 1226(c) and 1225(b) (the “1226(c) subclass” and “1225(b) subclass,” respectively), and to “provide each of them with a bond hearing before an Immigration Judge with power to grant their release.” Under the preliminary injunction, at the conclusion of each bond hearing, the Immigration Judge (“IJ”) “shall release each Subclass member on reasonable conditions of supervision, including electronic monitoring if necessary, unless the government shows by clear and convincing evidence that continued detention is justified based on his or her danger to the community or risk of flight.”2 The government appeals that order, and we affirm.

1 The class consists of:
all non-citizens within the Central District of California who: (1) are or were detained for longer than six months pursuant to one of the general immigration detention statutes pending completion of removal proceedings, including judicial review, (2) are not and have not been detained pursuant to a national security detention statute, and (3) have not been afforded a hearing to determine whether their detention is justified.
2 The district court entered its order on September 13, 2012. Thereafter, a panel of our court stayed the injunction for 30 days, giving the government until November 12, 2012 to comply with the preliminary injunction. At oral argument, government counsel represented that, since bond hearings began in mid-November of 2012, about 400 hearings have been conducted under the district court’s order. Government counsel stated that about two-thirds of those hearings resulted in the release of the alien on bond.

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I.

At any given time, thousands of immigrants to the United States are detained while they await the conclusion of administrative and judicial proceedings that will determine whether they may remain in this country. According to the most recently available statistics, over 429,000 detainees were held by U.S. Immigration and Customs Enforcement (“ICE”) over the course of fiscal year 2011; on average, over 33,000 were detained on any given day.3 As of late 2011, the Los Angeles Field Office of ICE oversaw the detention of over 2,000 aliens, the great majority of whom were not subject to a final order of removal. Id. at 1.

This appeal concerns individuals detained in southern California for six months or longer under one of two federal immigration statutes. Section 1226(c) of Title 8 of the United States Code (“Section 1226(c)” or “§ 1226(c)”) subjects certain aliens who are deportable or inadmissible on account of their criminal history to mandatory detention pending proceedings to remove them from the United States.4 If an

3 U.S. Immigration and Customs Enforcement, Enforcement and Removal Operations Facts and Statistics 3 (2011), available at http://www.ice.gov/doclib/foia/reports/ero-facts-and-statistics.pdf.
4 Mandatory detention under Section 1226(c) applies to aliens who are inadmissible on account of having committed a crime involving moral turpitude or a controlled substance offense, on account of having multiple criminal convictions with an aggregate sentence of five years or more of confinement, on account of connections to drug trafficking, prostitution, money laundering, or human trafficking, on account of having carried out severe violations of religious freedom while serving as a foreign government official, or on account of having been involved in serious criminal activity and asserting immunity from prosecution; aliens who are deportable on account of having been convicted of two or more crimes

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ICE official determines that an individual’s criminal history triggers application of §1226(c), the alien is processed for detention. If the relevant ICE official is unsure whether § 1226(c) applies to a certain individual, he may consult an ICE attorney who is “embedded” in the field office. Detainees are permitted to ask an Immigration Judge to reconsider the applicability of mandatory detention, see 8 C.F.R. § 1003.19(h)(2)(ii), but such review is limited in scope and addresses only whether the individual’s criminal history falls within the statute’s purview. See generally In re Joseph, 22 I. & N. Dec. 799 (B.I.A. 1999).

Section 1225(b) of Title 8 (“Section 1225(b)” or “§ 1225(b)”), the other statute at issue here, applies to “applicants for admission,” such as those apprehended at the border or at a port of entry. The statute provides that “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained” for removal proceedings. 8 U.S.C. § 1225(b)(2)(A); see also 8 U.S.C. § 1225(b)(1)(B)(iii)(IV) (providing for mandatory detention of asylum seekers “pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.”). Although Section 1225(b) generally mandates

involving moral turpitude, an aggravated felony, a controlled substance offense, certain firearm-related offenses, or certain other miscellaneous crimes; aliens who are deportable on account of having committed a crime of moral turpitude within a certain amount of time since their date of admission for which a sentence of one year or longer has been imposed; and aliens who are inadmissible or deportable because of connections to terrorism. See 8 U.S.C. § 1226(c) (cross-referencing 8 U.S.C. §§ 1182(a)(2), 1227(a)(2)(A)(ii), 1227(a)(2)(A)(iii), 1227(a)(2)(B), 1227(a)(2)(C), 1227(a)(2)(D), 1227(a)(2)(A)(i), 1182(a)(3)(B), 1227(a)(4)(B)).

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the detention of aliens seeking admission pending their removal proceedings, individuals detained under the statute may be eligible for discretionary parole from ICE custody. See 8 U.S.C. § 1182(d)(5)(A).5 In the Central District of California, detainees are notified that they will be reviewed for parole and are asked to fill out a questionnaire and to submit to an interview with ICE officers to probe their suitability for parole. The agency considers the alien’s potential dangerousness and criminal history, as well as flight risk, in making parole determinations. If a detainee is denied parole, he or she is notified orally and by a written form on which the explanation for the denial is conveyed through a checked box. Before the district court entered the preliminary injunction, parole was the only possible release mechanism available to most 1225(b) subclass members.

Appellees argue that prolonged mandatory detention under these statutes without any possibility for review of the government’s justification for their imprisonment by a neutral

5 Section 1182(d)(5)(A) provides:
The Attorney General may, except as provided in subparagraph (B) or in section 1184(f) of this title, in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.

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9

arbiter would raise grave constitutional concerns. Thus, relying on a related series of our decisions, Appellees requested a preliminary injunction guaranteeing them, when their detention exceeds six months in duration, an individualized determination of whether their continued detention is necessitated by any flight risk or possible danger to the community. The government argues that both statutes unambiguously require mandatory detention with no limit on the duration of imprisonment and that the Supreme Court has repeatedly affirmed the federal government’s constitutional and statutory authority to require such detention. We agree with the district court that, based on our precedent, the canon of constitutional avoidance requires us to construe the government’s statutory mandatory detention authority under Section 1226(c) and Section 1225(b) as limited to a sixmonth period, subject to a finding of flight risk or dangerousness.

II.

“The district court’s grant of a preliminary injunction is reviewed for abuse of discretion and should be reversed if the district court based its decision on an erroneous legal standard or on clearly erroneous findings of fact.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009) (internal quotation marks omitted). “The district court’s interpretation of the underlying legal principles, however, is subject to de novo review.” Id. An overbroad injunction is an abuse of discretion. Id.

III.

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is

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likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). To determine whether the district court abused its discretion in entering the preliminary injunction, then, we consider in turn: (1) Appellees’ likelihood of success on the merits; (2) whether they have established a likelihood of irreparable harm; (3) the balance of equities; and (4) where the public interest lies.6

A. Likelihood of Success on the Merits

Appellees claim that the federal immigration detention statutes must be construed to require “rigorous bond

6 The government suggests that Federal Rule of Civil Procedure 52(a) requires us to reverse and remand because the district court failed to make explicit findings of fact and conclusions of law in its order. Rule 52(a) directs that “the court must find the facts specially and state its conclusions of law separately.” While in general “[a] district court must set forth findings of fact and conclusions of law supporting an order granting an injunction,” we have held that “failure to comply with Rule 52(a) does not require reversal unless a full understanding of the question is not possible without the aid of separate findings.” FTC v. Enforma Natural Prods., Inc., 362 F.3d 1204, 1212 (9th Cir. 2004). In general, we will remand only “where a district court’s findings and conclusions supporting the preliminary injunction are not sufficient to permit meaningful review.” Id. Here, by virtue of Appellees’ membership in the subclasses at issue, the relevant facts are inherently undisputed: Each Appellee has been held for at least six months under one of the pertinent immigration detention statutes without an opportunity to contest his detention in a bond hearing. As the government concedes, “[t]his case presents, at its core, a question of statutory and constitutional interpretation that does not turn on the facts of any individual Petitioner.” The government offers no reason why meaningful review is not possible on the current record.

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11

hearings” for members of the 1226(c) and 1225(b) subclasses. They urge that, because prolonged mandatory detention without a bond hearing would raise grave constitutional concerns, we must read the statutes in a way that permits the possibility of release on review by a neutral decision-maker. It is “a cardinal principle” of statutory interpretation that, “if a serious doubt of constitutionality is raised” by one possible construction of a statute, we must “ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson, 285 U.S. 22, 62 (1932). “The canon favoring constructions of statutes to avoid constitutional questions does not, however, license a court to usurp the policy-making and legislative functions of duly-elected representatives.” Heckler v. Mathews, 465 U.S. 728, 741 (1984). Our task is therefore to determine whether the government’s reading of Sections 1226(c) and 1225(b) raises constitutional concerns and, if so, whether an alternative construction is plausible without overriding the legislative intent of Congress.

We begin with the premise that “[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Thus, the Supreme Court has held that the indefinite detention of a once-admitted alien “would raise serious constitutional concerns.” Id. at 682. However, the Supreme Court has also expressed a “longstanding view that the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings.” Demore v. Kim, 538 U.S. 510, 526 (2003). We therefore must determine whether the government’s authority to mandatorily detain aliens under Sections 1226(c) and 1225(b) for prolonged periods raises the constitutional

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concerns identified by the Supreme Court in Zadvydas, or whether such detention is consistent with Demore and, thereby, permissible.

These are not entirely new questions for our court. As noted by the previous panel that reversed the district court’s denial of class certification, in a series of decisions since 2001, “the Supreme Court and this court have grappled in piece-meal fashion with whether the various immigration detention statutes may authorize indefinite or prolonged detention of detainees and, if so, may do so without providing a bond hearing.” Rodriguez v. Hayes (Rodriguez I), 591 F.3d 1105, 1114 (9th Cir. 2010). After Zadvydas and Demore, we held in Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005), that the detention under § 1226(c) of a lawfully admitted resident alien subject to removal for over 32 months was “constitutionally doubtful.” Id. at 1242 (“Despite the substantial powers that Congress may exercise in regard to aliens, it is constitutionally doubtful that Congress may authorize imprisonment of this duration for lawfully admitted resident aliens who are subject to removal.”). “To avoid deciding the constitutional issue, we interpret[ed] the authority conferred by § 1226(c) as applying to expedited removal of criminal aliens” and held that “[t]wo years and eight months of process is not expeditious.” Id. Thus, we remanded Tijani’s petition to the district court with directions to grant a writ of habeas corpus unless the government provided a bail hearing within 60 days. Id.

We expanded on this reasoning in Casas-Castrillon v. Department of Homeland Security (Casas), 535 F.3d 942 (9th Cir. 2008). In Casas, a lawful permanent resident (“LPR”) who had been detained for seven years sought habeas relief while his petition for review of his removal order was

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13

pending before this court. Id. at 944–45. We interpreted Demore to hold “that § 1226(c) was intended only to ‘govern[] detention of deportable criminal aliens pending their removal proceedings,’ which the Court emphasized typically ‘lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal’ his removal order to the BIA.” Id. at 948 (alteration in original) (quoting Demore, 538 U.S. at 527-28, 530) (emphasis omitted). Concluding that § 1226(c) applies during only administrative removal proceedings (i.e., up until the BIA dismisses an alien’s appeal but not during the pendency of judicial review), we held “that Casas’ detention was authorized during this period [while he awaited judicial review] under the Attorney General’s general, discretionary detention authority under § 1226(a).”7 Id. In other words,

7 Section 1226(a) provides:
On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) of this Section and pending such decision, the Attorney General--
(1) may continue to detain the arrested alien; and
(2) may release the alien on--
(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or
(B) conditional parole; but
(3) may not provide the alien with work authorization

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§ 1226(c)’s mandatory detention provisions apply only until the BIA affirms a removal order, at which point the government’s authority to detain the alien shifts to § 1226(a), where it remains until “we have rejected his final petition for review or his time to seek such review expires.” Id.

Having concluded that Casas’ continued detention was “authorized” under § 1226(a), we observed that “[t]here is a difference between detention being authorized and being necessary as to any particular person,” and thus held “that the government may not detain a legal permanent resident such as Casas for a prolonged period without providing him a neutral forum in which to contest the necessity of his continued detention.” Id. at 949. We further noted that while “[t]he Supreme Court upheld § 1226(c)’s mandatory detention provision in Demore, [it] did so with the specific understanding that § 1226(c) authorized mandatory detention only for the ‘limited period of [the alien’s] removal proceedings,’” which the Court emphasized was brief. Id. at 950 (alteration in original) (quoting Demore, 538 U.S. at 530). Because Demore’s holding hinged on the brevity of mandatory detention, we concluded in Casas that “prolonged detention of aliens is permissible only where the Attorney General finds such detention individually necessary by providing the alien with an adequate opportunity to contest the necessity of his detention.” Id. at 951. We thus held that, under § 1226(a)’s discretionary detention regime, a bond

(including an “employment authorized” endorsement or other appropriate work permit), unless the alien is lawfully admitted for permanent residence or otherwise would (without regard to removal proceedings) be provided such authorization.

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hearing is required before the government may detain an alien for a “prolonged” period. Id.

Two questions left unanswered by our opinion in Casas—the procedural requirements for bond hearings under Casas and the precise definition of “prolonged” detention—have been answered in more recent opinions. First, in Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011), we provided guidance to immigration officials as to the procedures required at a Casas hearing. With regard to the appropriate burden of proof, we held that, “[g]iven the substantial liberty interest at stake . . . the government must prove by clear and convincing evidence that an alien is a flight risk or a danger to the community to justify denial of bond at a Casas hearing.” Singh, 638 F.3d at 1203. We further held that, in considering whether the government has proven dangerousness, IJs should consider the factors identified in In re Guerra, 24 I. & N. Dec. 37 (B.I.A. 2006), which include the extensiveness of an alien’s criminal record, the recency of his criminal activity, and the seriousness of his offenses. Singh, 638 F.3d at 1206 (citing Guerra, 24 I. & N. Dec. at 40). We also held that “due process requires a contemporaneous record of Casas hearings,” such as a transcript or an audio recording available upon request. Id. at 1208.

Second, in Diouf v. Napolitano (Diouf II), 634 F.3d 1081 (9th Cir. 2011), we addressed the definition of “prolonged” detention for purposes of the Casas bond hearing requirement. Diouf II first extended the holding of Casas to

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aliens discretionarily detained under 8 U.S.C. § 1231(a)(6).8 Id. at 1086. Rejecting the government’s proferred bases for distinguishing Casas, see id., we held that “an alien facing prolonged detention under § 1231(a)(6) is entitled to a bond hearing before an immigration judge and is entitled to be released from detention unless the government establishes that the alien poses a risk of flight or a danger to the community.” Id. at 1092. Importantly, we indicated that an “alien’s continuing detention becomes prolonged” at the 180day mark. Id. at 1091.

When detention crosses the six-month threshold and release or removal is not imminent, the private interests at stake are profound. Furthermore, the risk of an erroneous deprivation of liberty in the absence of a hearing before a neutral decisionmaker is substantial. The burden imposed on the government by requiring hearings before an immigration judge at this stage of the proceedings is therefore a reasonable one.

Id. at 1091–92.

With this precedent in mind, we address Appellees’ likelihood of success on the merits. Because the legal

8 Section 1231(a)(6) permits the continued detention, beyond the 90-day statutory removal period that begins when a removal order becomes final, of “inadmissible aliens, criminal aliens, aliens who have violated their nonimmigrant status conditions, and aliens removable for certain national security or foreign relations reasons, as well as any alien ‘who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal.’” Zadvydas, 533 U.S. at 688 (quoting 8 U.S.C. § 1231(a)(6)).

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considerations applicable to the 1226(c) and 1225(b) subclasses differ in some respects, we separately analyze Appellees’ likelihood of success with respect to each subclass.

1. The 1226(c) subclass.

In addressing Section 1226(c), we do not write on a blank slate. In Demore, an LPR who conceded deportability as an aggravated felon raised a due process challenge to his mandatory detention under § 1226(c). Demore, 538 U.S. at 517–18, 523. The Supreme Court first reviewed at some length Congress’s stated reasons for mandating detention of the aliens to whom Section 1226(c) applies, emphasizing concerns about flight and recidivism under the prior regime. Id. at 518–21. Ultimately, the Demore majority held that the government was not required to provide individualized determinations of an alien’s dangerousness or flight risk to detain him during his removal proceedings. See id. at 523–25. Noting that the Zadvydas Court had already held that the government’s authority to detain an alien indefinitely pending removal would be constitutionally doubtful, the Demore majority distinguished Zadvydas on two principal grounds. Id. at 527 (citing Zadvydas, 533 U.S. at 699). First, while in Zadvydas the petitioners challenged their indefinite detention under circumstances where removal was not practicable, thus undermining the government’s interest in preventing flight, see id. (citing Zadvydas, 533 U.S. at 690), detention under Section 1226(c) “necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed.” Id. at 528. Second, Demore emphasized that unlike the detention at issue in Zadvydas,

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which had no clear termination point, Section 1226(c) applies only during the pendency of removal proceedings and thus has an inherent end point—the conclusion of proceedings:

Under § 1226(c), not only does detention have a definite termination point, in the majority of cases it lasts for less than the 90 days we considered presumptively valid in Zadvydas. The Executive Office for Immigration Review has calculated that, in 85% of the cases in which aliens are detained pursuant to § 1226(c), removal proceedings are completed in an average time of 47 days and a median of 30 days . . . . In the remaining 15% of cases, in which the alien appeals the decision of the Immigration Judge to the Board of Immigration Appeals, appeal takes an average of four months, with a median time that is slightly shorter.

Id. at 529 (footnote and citations omitted). The Court thus upheld mandatory detention under § 1226(c), though the concurring opinion of Justice Kennedy—whose vote created a majority—noted that “a lawful permanent resident alien such as respondent could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified.” Id. at 532 (Kennedy, J., concurring) (citing Zadvydas, 533 U.S. at 684–86).

We have addressed the question of how broadly Demore sweeps in several decisions over the past decade. On each of these occasions, we have consistently held that Demore’s holding is limited to detentions of brief duration. See, e.g.,

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Casas, 535 F.3d at 950 (“References to the brevity of mandatory detention under § 1226(c) run throughout Demore.”); Tijani, 430 F.3d at 1242 (similar); Nadarajah v. Gonzales, 443 F.3d 1069, 1081 (9th Cir. 2006) (“In Demore, the Court grounded its holding by referencing a ‘brief period’ . . . of ‘temporary confinement’ . . . . There is no indication anywhere in Demore that the Court would countenance an indefinite detention.”) (citations omitted). We are by no means the only court to interpret Demore in this way. For instance, in Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011), the Third Circuit construed Demore, in light of Justice Kennedy’s concurrence, as recognizing that “the constitutionality of [mandatory detention] is a function of the length of the detention.” Id. at 232 (“At a certain point, continued detention becomes unreasonable and the Executive Branch’s implementation of § 1226(c) becomes unconstitutional unless the Government has justified its actions at a hearing inquiring into whether continued detention is consistent with the law’s purposes of preventing flight and dangers to the community.”); see also Ly v. Hansen, 351 F.3d 263, 271 (6th Cir. 2003) (“[T]he Court’s discussion in Kim is undergirded by reasoning relying on the fact that Kim, and persons like him, will normally have their proceedings completed within . . . a short period of time and will actually be deported, or will be released. That is not the case here.”).

Thus, it is clear that while mandatory detention under § 1226(c) is not constitutionally impermissible per se, the statute cannot be read to authorize mandatory detention of criminal aliens with no limit on the duration of imprisonment. As we held in Casas, “the prolonged detention of an alien without an individualized determination of his dangerousness or flight risk would be constitutionally doubtful.” 535 F.3d

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at 951 (internal quotation marks omitted). Consistent with our previous decisions, we conclude that, to avoid constitutional concerns, § 1226(c)’s mandatory language must be construed “to contain an implicit ‘reasonable time’ limitation, the application of which is subject to federal-court review.” Zadvydas, 533 U.S. at 682.

The government relies heavily on Demore in advancing several arguments that the entry of the preliminary injunction was improper, but none is ultimately persuasive. First, the government directs us to the statutory history of §1226(c), arguing that by enacting the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Congress intentionally undid provisions of the 1990 and 1991 amendments to the Immigration and Nationality Act (“INA”) that previously granted some discretion to the Attorney General to release criminal aliens pending removal. The government cites Demore’s observation that Congress’s enactment of § 1226(c) hinged on its determination that the flight of aliens released pending removal proceedings, and crimes perpetrated with frequency by those who absconded under the prior regime, were undermining national immigration policy. See Demore, 538 U.S. at 518–19. Moreover, the government argues that the statute’s use of the mandatory “shall” plainly contemplates mandatory detention without a bond hearing. It notes that § 1226(a), which was enacted contemporaneously with § 1226(c), uses discretionary language and that § 1226(c)(2) provides for narrow exceptions to mandatory detention for criminal aliens who materially assist law enforcement. These statutes, the government contends, indicate that Congress knew how to provide for release on bond if it wished to do so. Finally, the government argues that under Zadvydas and Demore, mandatory detention under 1226(c) without a bond hearing is

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21

permissible because such detention has a definite termination point.

We are not convinced by the government’s reasoning, which relies on a broad reading of Demore foreclosed by our post-Demore cases. Despite the Supreme Court’s holding that mandatory detention under § 1226(c) without an individualized determination of dangerousness or flight risk is constitutional under some circumstances, our subsequent decisions applying Demore make clear that Demore’s reach is limited to relatively brief periods of detention. See Casas, 535 F.3d at 951. Nothing about the district court’s preliminary injunction order requires reading the mandatory detention requirement out of § 1226(c), because “the mandatory, bureaucratic detention of aliens under § 1226(c) was intended to apply for only a limited time,” after which “the Attorney General’s detention authority rests with § 1226(a).” Id. at 948. In other words, the preliminary injunction does not require that anyone held under § 1226(c) receive a bond hearing. Rather, under a fair reading of our precedent, when detention becomes prolonged, § 1226(c) becomes inapplicable. “As a general matter, detention is prolonged when it has lasted six months and is expected to continue more than minimally beyond six months.” Diouf II, 634 F.3d at 1092 n.13. Therefore, subclass members who have been detained under § 1226(c) for six months are entitled to a bond hearing because the applicable statutory law, not constitutional law, requires one. Thus, while the government may be correct that reading §1226(c) as anything other than a mandatory detention statute is not a “plausible interpretation[] of [the] statutory text,” Clark v. Martinez, 543 U.S. 371, 381 (2005), it does not argue that reading an implicit temporal limitation on mandatory detention into the statute is implausible. Indeed, it could not do so, because

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such an argument is foreclosed by our decisions in Tijani and Casas.

The government’s attempts to distinguish our postDemore authority are unavailing. It is certainly true, as the government notes, that by its terms Casas concerned an alien who had received an administratively final removal order, sought judicial review, and obtained a remand to the BIA; thus, it did not expressly apply to aliens awaiting the conclusion of their initial administrative proceedings. But this seems to us a distinction without a difference, and the government does not present a persuasive reason why the same protections recognized in Casas should not apply to pre-removal order detainees. “Regardless of the stage of the proceedings, the same important interest is at stake—freedom from prolonged detention.” Diouf II, 634 F.3d at 1087. Indeed, if anything, because LPRs detained prior to the entry of an administratively final removal order have not been adjudicated removable, they would seem to have a greater liberty interest than individuals detained pending judicial review or the pendency of a motion to reopen before the agency, and thus a greater entitlement to a bond hearing. See id. at 1086–87 (suggesting that a detainee who is subject to a final order of removal may have a “lesser liberty interest in freedom from detention”).

The government is likewise correct that Diouf II by its terms addressed detention under § 1231(a)(6), not § 1226(c) or § 1225(b). But Diouf II strongly suggested that immigration detention becomes prolonged at the six-month mark regardless of the authorizing statute. See, e.g., id. at 1091–92 (“When detention crosses the six-month threshold and release or removal is not imminent, the private interests at stake are profound.”). Even if Diouf II does not squarely

RODRIGUEZ V. ROBBINS

23

hold that detention always becomes prolonged at six months, that conclusion is consistent with the reasoning of Zadvydas, Demore, Casas and Diouf II, and we so hold.

The government’s remaining argument against what it calls “a six-month blanket rule” is that such a rule would be contrary to the decisions of other circuits and to the principle that due process inherently must be determined through caseby-case adjudication. Neither contention is compelling. First, the government cites the Sixth Circuit’s decision in Ly, 351 F.3d at 271–73, and the Third Circuit’s decision in Diop, 656 F.3d at 234, both of which declined to establish a brightline time limit on detention without a bond hearing. But both Diop and Ly held that there are substantive limits on the length of detention under § 1226(c), and those cases are thus contrary to the government’s position that Demore permits mandatory detention under § 1226(c) irrespective of duration. To the extent Diop and Ly reject a categorical time limit, their reasoning in that respect is inapplicable here, both because this petition is a class action (and thus relief will perforce apply to all detainees) and because we already indicated in Diouf II that detention is presumptively prolonged when it surpasses six months in duration. More fundamentally, the preliminary injunction does not, as the government claims, “embrace an inflexible blanket approach to due process analysis.” Rather, the injunction requires individualized decision-making—in the form of bond hearings that conform to the procedural requirements set forth in Singh. Thus, the 1226(c) subclass members are likely to succeed on the merits.

2. The 1225(b) subclass.

We next address whether the prolonged detention of “applicants for admission” under Section 1225(b) raises the

24

RODRIGUEZ V. ROBBINS

same “serious constitutional concerns” that are implicated by prolonged detention of other detained aliens. The government argues that the 1225(b) subclass members enjoy lesser constitutional protections than other detained aliens. Of course, if the statute does not raise constitutional concerns, then there is no basis for employing the canon of constitutional avoidance. See Ma v. Ashcroft, 257 F.3d 1095, 1106–07 (9th Cir. 2001).

The government emphasizes the “unique constitutional position of arriving aliens” to argue that prolonged detention of 1225(b) subclass members does not implicate constitutional concerns. This argument relies principally on Shaughnessy v. United States ex rel. Mezei (Mezei), 345 U.S. 206 (1953) and Barrera-Echavarria v. Rison, 44 F.3d 1441 (9th Cir. 1995) (en banc), superseded by statute as stated in Xi v. I.N.S., 298 F.3d 832, 837–38 (9th Cir. 2002)). In Mezei, the Supreme Court rejected a constitutional challenge to the multi-year detention on Ellis Island of an LPR returning from a 19-month trip abroad. See 345 U.S. at 214. Adverting to the now-defunct statutory distinction between “exclusion” and “deportation” proceedings, the Court held that:

[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law . . . . But an alien on the threshold of initial entry stands on a different footing: Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.

Id. at 212 (internal quotation marks and citations omitted). In Barrera-Echavarria, we applied Mezei to uphold the

RODRIGUEZ V. ROBBINS

25

constitutionality of prolonged detention of excludable aliens under the pre-IIRIRA version of 8 U.S.C. § 1226(e). 44 F.3d at 1448. We held that the “entry fiction” doctrine, as explained by the Supreme Court, “squarely precludes a conclusion that [excludable aliens] have a constitutional right to be free from detention, even for an extended time.” Id. at 1449.

It seems clear that many, if not most, members of the 1225(b) subclass would fall into the category of aliens described in Mezei and Barrera-Echavarria as entitled to limited due process protection. See Barrera-Echavarria, 44 F.3d at 1450 (“Mezei established what is known as the ‘entry fiction,’ which provides that although aliens seeking admission into the United States may physically be allowed within its borders pending a determination of admissibility, such aliens are legally considered to be detained at the border and hence as never having effected entry into this country . . . . Noncitizens who are outside United States territories enjoy very limited protections under the United States Constitution.”) (emphasis added) (internal quotations and citations omitted). Nonetheless, we have reason to question whether Mezei and Barrera-Echavarria are squarely apposite to the inquiry before us.

First, both cases were decided under pre-IIRIRA law. Because the cases apply to the former category of “excludable aliens,” it is not clear that the class of aliens to whom Mezei and Barrera-Echavarria applied is coextensive with the 1225(b) subclass in this case. As we explained in Xi:

The INA is no longer denominated in terms of “entry” and “exclusion.” IIRIRA replaced these terms with the broader concept of

26

RODRIGUEZ V. ROBBINS

“admission.” Section 1101(a)(13), which formerly defined “entry” as “any coming of an alien into the United States, from a foreign port or place . . . ,” 8 U.S.C. [§] 1101(a)(13) (1994), now defines “admission” to mean “the lawful entry of [an] alien into the United States after inspection and authorization by an immigration officer,” 8 U.S.C. [§] 1101(a)(13)(A) (2002). Concomitantly, IIRIRA dropped the concept of “excludability” and now uses the defined term of “inadmissibility.” Although the grounds for being deemed inadmissible are similar to those for being deemed excludable, compare 8 U.S.C. § 1182 (1994) with 8 U.S.C. § 1182 (2002), there are substantial differences between the two statutes.

298 F.3d at 838. Of course, this does not undermine BarreraEchavarria’s reasoning as it relates to aliens in the 1225(b) subclass to whom the entry fiction clearly applies (likely the vast majority). But the Supreme Court has instructed that, where one possible application of a statute raises constitutional concerns, the statute as a whole should be construed through the prism of constitutional avoidance. See Clark, 543 U.S. at 380 (2005) (“It is not at all unusual to give a statute’s ambiguous language a limiting construction called for by one of the statute’s applications, even though other of the statute’s applications, standing alone, would not support the same limitation. The lowest common denominator, as it were, must govern.”). Thus, the dispositive question is not whether the government’s reading of § 1225(b) is permissible in some (or even most) cases, but rather whether there is any

RODRIGUEZ V. ROBBINS

27

single application of the statute that calls for a limiting construction.9

Under current law, § 1225(b) applies to some LPRs returning from abroad who have not been absent for the prolonged period described in Mezei. See 8 U.S.C. § 1101(a)(13)(C) (setting forth six categories of LPRs who may be treated as seeking admission, only one of which

9 At oral argument, government counsel contended that the district court record is devoid of any evidence suggesting that members of the 1225(b) subclass include returning LPRs. This argument reveals a fundamental misunderstanding of class actions litigated under Rule 23(b)(2) of the Federal Rules of Civil Procedure, including this one. See Rodriguez I, 591 F.3d at 1125–26. “The key to the (b)(2) class is ‘the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2557 (2011) (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)). It would be illogical for us to conclude that the government’s reading of the statute is permissible just because, by happenstance, there are currently no detainees in the Central District who possess the requisite constitutional status to render ICE’s preferred practice illegal. Nor could we countenance such a result in light of the Supreme Court’s admonition that, “when deciding which of two plausible statutory constructions to adopt, a court must consider the necessary consequences of its choice. If one of them would raise a multitude of constitutional problems, the other should prevail—whether or not those constitutional problems pertain to the particular litigant before the Court.” Clark, 543 U.S. at 380–81. In other words, if the canon of constitutional avoidance requires us to read the statute such that bond hearings are available to individuals who have been detained for six months, then under Clark such hearings must be available to everyone detained under the statute.

28

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relates to prolonged absences from U.S. territory).10 “It is well established that if an alien is a lawful permanent resident of the United States and remains physically present there, he is a person within the protection of the Fifth Amendment,” and an LPR whose absence is not prolonged is assimilated to that same constitutional status. Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953). For instance, an LPR who left the United States briefly to undertake illegal activity abroad, such

10 Section 1101(a)(13)(C) provides:
An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien–
(i) has abandoned or relinquished that status,
(ii) has been absent from the United States for a continuous period in excess of 180 days,
(iii) has engaged in illegal activity after having departed the United States,
(iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this chapter and extradition proceedings,
(v) has committed an offense identified in section 1182(a)(2) of this title, unless since such offense the alien has been granted relief under section 1182(h) or 1229b(a) of this title, or
(vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

RODRIGUEZ V. ROBBINS

29

as alien smuggling, would clearly be included in the 1225(b) subclass; under 8 U.S.C. § 1101(a)(13)(C)(iii), he would be treated as an alien seeking admission on account of having “engaged in illegal activity after having departed the United States.” See United States v. Tsai, 282 F.3d 690, 696 & n.5 (9th Cir. 2002). But in Landon v. Plasencia, 459 U.S. 21 (1982), the Supreme Court specifically held that an LPR arrested for alien smuggling upon return from a brief trip abroad is entitled to due process protection, specifically because Mezei is inapplicable in such a scenario. See id. at 34 (holding that Mezei “did not suggest that no returning resident alien has a right to due process,” and that “it does not govern this case, for Plasencia was absent from the country only a few days”). As such, it is clear that the 1225(b) subclass includes at least some aliens who are not subject to the entry fiction doctrine, and thus under Clark the statute must be construed with these aliens in mind.11

This conclusion is buttressed by the fact that the government’s position is facially inconsistent with our binding holding in Nadarajah. Nadarajah concerned an asylum seeker who had been granted relief but who remained detained pending review of his case by the Attorney General. 443 F.3d at 1071–75. Although we examined Nadarajah’s claims under the paradigm of Zadvydas, and therefore considered only the possibility of “indefinite” (as opposed to “prolonged”) detention, we nonetheless held that § 1225(b) is susceptible to a saving construction to avoid constitutional

11 This analysis also disposes of the government’s reliance on AlvarezGarcia v. Ashcroft, 378 F.3d 1094 (9th Cir. 2004), which involved an individual petition for review brought by an alien who entered the United States without inspection and thus clearly was subject to the doctrine described in Mezei and Barrera-Echavarria. See id. at 1095, 1097–98.

30

RODRIGUEZ V. ROBBINS

concerns. See id. at 1076–78. While this analysis does not directly answer the central question presented by this appeal, i.e. whether bond hearings are required at the six month mark, it does undermine the government’s arguments in two important respects. First, the government argues that § 1225(b) is too unambiguous for the doctrine of constitutional avoidance to apply. But it is not clear how this could be so in light of Nadarajah, where we have already applied the canon to this very statute. Second, and relatedly, the government’s argument that there is no due process “floor” for the treatment of aliens subject to §1225(b) is difficult to reconcile with a binding decision that already construed the statute expressly to avoid constitutional concerns. Thus, read together, Plasencia, Clark, and Nadarajah suggest that we must construe § 1225(b) to avoid potential constitutional concerns raised by its application to LPRs who enjoy due process protection.

With this premise in place, the likelihood of success of the 1225(b) subclass is determined by the same analysis applicable to the 1226(c) subclass, which we conclude has demonstrated a likelihood of success. To the extent our holdings in Tijani, Casas, and Diouf II require that we construe mandatory immigration detention authority as timelimited and that bond hearings occur when detention becomes “prolonged,” there is no basis for distinguishing between the two sub-classes in this regard. Indeed, if anything it would appear that the LPRs who fall within § 1225(b)’s purview should enjoy greater constitutional protections than criminal aliens who have already failed to win relief in their removal proceedings, as in Casas. See Johnson v. Eisentrager, 339 U.S. 763, 770 (1950) (“The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his

RODRIGUEZ V. ROBBINS

31

identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization.”).

Appellees suggest two potential ways we could apply the canon of constitutional avoidance in construing § 1225(b). First, we could simply read a bond hearing requirement into the statute, as we did with regard to § 1231(a)(6) in the Diouf opinions. See Diouf II, 634 F.3d at 1089; Diouf v. Mukasey (Diouf I), 542 F.3d 1222, 1234 (9th Cir. 2008) (“We have specifically construed § 1231(a)(6) to permit release on bond.”) (citing Doan v. I.N.S., 311 F.3d 1160, 1162 (9th Cir. 2002)). This first suggestion, however, is problematic. For one thing, this reading would conflict with Department of Homeland Security regulations, at least as applied to some subclass members, because current regulations unambiguously strip IJs of the authority to “redetermine conditions of custody imposed by the Service with respect to” arriving aliens. See 8 C.F.R. § 1003.19(h)(2)(i)(B). Moreover, it is difficult to distinguish the statute’s language from that of § 1226(c), which also provides that aliens who fall within its scope “shall” be detained and which the Supreme Court has characterized as mandating detention. See Demore, 538 U.S. at 513–14; compare 8 U.S.C. § 1226(c)(1) (“The Attorney General shall take into custody any alien who . . . .”), with id. § 1225(b)(2)(A) (“[I]f the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained . . . .”). Appellees argue that the existence of the parole scheme itself undermines the government’s mandatory construction of the

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statute, but § 1226(c) also contains a statutory exception to mandatory detention. See 8 U.S.C. § 1226(c)(2) (“The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides . . . that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.”). If anything, the existence of these narrow and explicit exceptions to both statutes’ reach is evidence of their drafters’ intent to make detention mandatory in all cases to which the exceptions are inapplicable. Thus, Appellees’ first suggested construction is not a “fairly possible” reading of the statute as required for the canon of constitutional avoidance to apply.

Appellees’ second suggested construction fares considerably better. Under this approach, we would simply follow Casas and hold that, to the extent detention under §1225(b) is mandatory, it is implicitly time-limited. This approach fits more naturally into our case law, which has suggested that after Demore, brief periods of mandatory immigration detention do not raise constitutional concerns, but prolonged detention—specifically longer than six months—does. This reading also has the advantage of uniformity, which the Supreme Court has suggested is an important value in matters of statutory construction. Cf. Zadvydas, 533 U.S. at 680 (“In order to limit the occasions when courts will need to make the difficult judgments called for by the recognition of this necessary Executive leeway, it is practically necessary to recognize a presumptively

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33

reasonable period of detention . . . . [F]or the sake of uniform administration in the federal courts, six months is the appropriate period.”). Of course, the government’s detention authority does not completely dissipate at six months; rather, the mandatory provisions of § 1225(b) simply expire at six months, at which point the government’s authority to detain the alien would shift to § 1226(a), which is discretionary and which we have already held requires a bond hearing. See Casas, 535 F.3d at 948.

Finally, we note that the discretionary parole system available to § 1225(b) detainees is not sufficient to overcome the constitutional concerns raised by prolonged mandatory detention. Indeed, any argument to that effect is clearly foreclosed by our holding in Singh, which held that bond hearings must be held before a neutral IJ with the government bearing the burden of proof by clear and convincing evidence. See 638 F.3d at 1203–04. The parole process is purely discretionary and its results are unreviewable by IJs. Cf. Casas, 535 F.3d at 949 (“We hold that the government may not detain a legal permanent resident such as Casas for a prolonged period without providing him a neutral forum in which to contest the necessity of his continued detention.” (emphasis added)). Moreover, release decisions are based on humanitarian considerations and the public interest, see 8 U.S.C. § 1182(d)(5)(A), not whether the alien “is a flight risk or will be a danger to the community.” Singh, 638 F.3d at 1203 (quoting Casas, 535 F.3d at 951). To the extent the principles of Tijani, Casas and Diouf II are applicable to the 1225(b) subclass, the constitutionally grounded hearing requirements set forth in Singh are also applicable. The government does not, and could not, contend that discretionary parole satisfies Singh. Thus, Appellees are likely to succeed on the merits of their claim that § 1225(b)

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must be construed to authorize only six months of mandatory detention, after which detention is authorized by § 1226(a) and a bond hearing is required.

B. Irreparable Harm

Having determined that Appellees are likely to succeed on the merits, we consider the remaining Winter factors. We conclude that, here too, the Winter factors favor Appellees.

Appellees clearly face irreparable harm in the absence of the preliminary injunction. “It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). Thus, it follows from our conclusion that the government’s reading of Sections 1226(c) and 1225(b) raises serious constitutional concerns “that irreparable harm is likely, not just possible” in the absence of preliminary injunctive relief. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).

There is no dispute that at least some individuals who would be detained if not provided a bond hearing will be granted conditional release under this injunction. Moreover, the government does not dispute that some subclass members detained under § 1225(b) and § 1226(c) will win relief from removal, further undermining any purported rationale for continued detention. Thus, the preliminary injunction is necessary to ensure that individuals whom the government cannot prove constitute a flight risk or a danger to public safety, and sometimes will not succeed in removing at all, are not needlessly detained. Appellees have therefore clearly shown a risk of irreparable harm.

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35

C. Balance of the Equities

The government provides almost no evidence that it would be harmed in any way by the district court’s order, other than its assertion that the order enjoins “presumptively lawful” government activity and is contrary to the plain meaning of the statutes. These arguments are obviously premised on the government’s view of the merits because it cannot suffer harm from an injunction that merely ends an unlawful practice or reads a statute as required to avoid constitutional concerns. Cf. Zepeda v. I.N.S., 753 F.2d 719, 727 (9th Cir. 1983) (“[T]he INS cannot reasonably assert that it is harmed in any legally cognizable sense by being enjoined from constitutional violations.”).12 Thus, in light of the major hardship posed by needless prolonged detention, we conclude that the balance of the equities favors Appellees.

D. The Public Interest

The government claims that “the government’s interest is presumed to be the ‘public’s interest’ in this case.” It

12 The government also contends that Appellees delayed in bringing their motion for a preliminary injunction. See Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374, 1377 (9th Cir. 1985) (“Plaintiff’s long delay before seeking a preliminary injunction implies a lack of urgency and irreparable harm.”). But the government identifies no prejudice that it has suffered as a result of this delay, and in any event the district court did not abuse its discretion by declining to withhold preliminary relief from a constitutionally suspect government practice on the basis that an injunction should have been requested sooner. Moreover, as Appellees point out, the government declined to seek certiorari in Diouf II—on which Appellees’ motion relied—only in February of 2012. The parties thereafter engaged in settlement negotiations, which apparently stalled in March. Thus, Appellees’ June 2012 preliminary injunction motion was not particularly belated.

36

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contends that the public interest is undermined by the heavy burden the injunction places on administrative resources and by the government’s potential inability to prepare for bond hearings in time to comply with the district court’s order. But the government’s arguments are flawed in several respects. First, it cites Nken v. Holder, 556 U.S. 418 (2009), for the general proposition that the public interest always militates against enjoining government practices. But Nken does not contain any such holding. While the Court observed that there is “always a public interest in prompt execution of removal orders,” which “may be heightened by the circumstances . . . if, for example, the alien is particularly dangerous, or has substantially prolonged his stay by abusing the processes provided to him,” id. at 436, it did not purport to create a blanket presumption in favor of the government in all preliminary injunction cases. Moreover, the bond hearings that this injunction requires are intended to determine precisely whether each individual alien is dangerous or a flight risk and to permit the conditional release only of those who are not. By its terms, the injunction does not require the government to release anyone. Thus, Nken does not support the government’s position.

The government’s arguments regarding the resources required to implement the injunction are also not compelling. Hundreds of hearings have already occurred under the district court’s order, belying any suggestion that the preliminary injunction is prohibitively burdensome. Moreover, even if the government faced severe logistical difficulties in implementing the order—a premise that Appellees dispute—they would merely represent the burdens of complying with the applicable statutes, as construed to avoid practices occasioned by an interpretation of the statutes that risks running afoul of the Constitution. “Generally, public

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37

interest concerns are implicated when a constitutional right has been violated, because all citizens have a stake in upholding the Constitution.” Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005). It stands to reason that the public interest also benefits from a preliminary injunction that ensures that federal statutes are construed and implemented in a manner that avoids serious constitutional questions.

IV.

Contrary to the government’s rhetoric, this injunction will not flood our streets with fearsome criminals seeking to escape the force of American immigration law. The district court’s narrowly tailored order provides individuals, whose right to be present in the United States remains to be decided, a hearing where a neutral decision-maker can determine whether they might deserve conditional release from the prison-like setting where they might otherwise languish for months or years on end. These hearings simply ensure that “the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” Jackson v. Indiana, 406 U.S. 715, 738 (1972).

“[F]reedom from physical restraint ‘has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.’” Kansas v. Hendricks, 521 U.S. 346, 356 (1997) (quoting Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). While ICE is entitled to carry out its duty to enforce the mandates of Congress, it must do so in a manner consistent with our constitutional values.

AFFIRMED.

 
 Case 2:07-cv-03239-TJH-RNB Document 353 Filed 08/06/13 Page 1 of 6 Page ID #:8277

1

2

3

4

5

6

7

8

United States District Court

9

Central District of California

10

Western Division

11

12 ALEJANDRO RODRIGUEZ, et al.,

CV 07-3239 TJH (RNBx)

13

Petitioners,

14

v.

15 ERIC HOLDER, et al.,

16

Respondents.

17

Order, Judgment
and Permanent Injunction

18

19

The Court has considered Petitioners’ motion to clarify the class definition and

20 the cross motions for summary judgment together, with moving and opposing papers.

21

The Court certified the class in this case after the Ninth Circuit held that the class

22 must be certified. Rodriguez v. Hayes (Rodriguez I), 591 F.3d 1105 (9th Cir. 2010).

23 The class is defined as:

24

All non-citizens within the Central District of California who: (1) Are or

25

were detained for longer than six months pursuant to one of the general

26

immigration detention statutes pending completion of removal proceedings,

27

including judicial review; (2) Are not and have not been detained pursuant

28

to a national security detention statute; and (3) Have not been afforded a

Order, Judgment & Permanent Injunction – Page 1 of 6

Case 2:07-cv-03239-TJH-RNB Document 353 Filed 08/06/13 Page 2 of 6 Page ID #:8278

1

hearing to determine whether their detention is justified.

2 “General immigration statutes” in the class definition refers to 8 U.S.C. §§ 1225(b),

3 1226 and 1231(a). See Rodriguez I, 591 F.3d at 1113. “Removal proceedings” does

4 not narrowly refer to its use in 8 U.S.C. § 1229a, but to any proceedings to determine

5 whether persons detained pursuant to the general immigration statutes, as defined in

6 Rodriguez I, will be removed from the United States.

7

For organizational purposes, the class is divided into four subclasses, as follows:

8

1. Class members detained under 8 U.S.C. § 1225(b);

9

2. Class members detained under 8 U.S.C. § 1226(a);

10

3. Class members detained under 8 U.S.C. § 1226(c); and

11

4. Class members detained under 8 U.S.C. § 1231(a).

12

The Court provided for no exceptions to the definitions of class membership, yet

13 Respondents have unilaterally excluded certain detainees. Consequently,

14

It is Ordered that there are no exceptions, express or implied, to the class

15 membership definitions.

16

It is further Ordered that class membership includes, inter alia, detainees

17 incarcerated for restatement under 8 U.S.C. § 1231(a)(5), detainees held for

18 proceedings initiated by an administrative removal order under 8 U.S.C. § 1228(b); and

19 detainees held under the general immigration statutes after entering the United States

20 through the Visa Waiver Program.

21

There are no genuine issues of material fact, and neither party contests that those

22 detained under § 1231 or § 1226(a) have a right to a bond hearing after six months of

23 detention. Most of Respondents’s arguments were previously addressed by this Court

24 and affirmed by the Circuit in Rodriguez v. Robbins (Rodriguez II), 715 F.3d 1127 (9th

25 Cir. 2013). However, Respondents raises one new argument. Respondents argue that

26 constitutional concerns are not implicated because the Rodriguez II panel did not

27 consider evidence that “a large number of aliens” extend the term of their own

28 detention through their own actions, such as requests for continuances. For this

Order, Judgment & Permanent Injunction – Page 2 of 6

Case 2:07-cv-03239-TJH-RNB Document 353 Filed 08/06/13 Page 3 of 6 Page ID #:8279

1 argument, Respondents rely on Demore v. Kim, 538 U.S. 510, 526, 123 S. Ct. 1708,

2 1719, 155 L. Ed. 724, 739 (2003), which the Ninth Circuit explicitly construed to only

3 support brief periods of detention. Rodriguez II, 715 F.3d at 1135.

4

The procedural requirements for bond hearings are well settled in the Ninth

5 Circuit. See Casas–Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th

6 Cir. 2008). In Rodriguez II, the Ninth Circuit reaffirmed that the procedural

7 requirements for a Casas bond hearing are those articulated in Singh v. Holder, 638

8 F.3d 1196, 1203-10 (9th Cir. 2011). Rodriguez II, 715 F.3d at 1135-36. The

9 government must prove by clear and convincing evidence that a detainee is a flight risk

10 or a danger to the community to justify the denial of bond at a Casas hearing.

11 Rodriguez II, 715 F.3d at 1136. Additionally, due process requires a contemporaneous

12 record of Casas hearings, so that a transcript or audio recording is available upon

13 request. Rodriguez II, 715 F.3d at 1136.

14

Petitioners, now, request four additional procedural safeguards. First, Petitioners

15 request that an Immigration Judge be required to consider whether the detainee will ever

16 be removed. Second, Petitioners request that an Immigration Judge be required to

17 consider conditions short of incarceration. Third, Petitioners request that the bond

18 hearings be automatically provided, rather than placing the burden on the detainee to

19 request the hearing. Finally, Petitioners request that notice of the hearing be provided

20 to each detainee in plain language, reasonably calculated to inform a person unfamiliar

21 with English and the United States legal system of the pendency of the hearing.

22

The first and second proposed procedural additions – consideration of the

23 likelihood of removal during a bond hearing, and consideration of alternatives to

24 incarceration – fall outside the ambit of Casas, Singh, and Rodriguez II. Rodriguez II

25 affirmed that the purpose of a Casas bond hearing is to determine a detainee’s flight risk

26 and dangerousness. Rodriguez II, 715 F.3d at 1135-36. Accordingly, Petitioners’

27 request that Immigration Judges consider the likelihood of detainees’ ultimate removal

28 as a factor at bond hearings would drastically expand the scope and purpose of bond

Order, Judgment & Permanent Injunction – Page 3 of 6

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1 hearings. Such a requirement would require legal and political analyses beyond what

2 would otherwise be considered at a bond hearing, and would place an unreasonable

3 burden on overly burdened Immigration Judges. As to the second request, Immigration

4 Judges should already be considering restrictions short of incarceration, including

5 house arrest with electronic monitoring, in determining a detainee’s flight risk and

6 dangerousness. Rodriguez II, 715 F.3d at 1131.

7

On the other hand, Petitioners’ request that the bond hearings be provided

8 automatically and that the notice to detainees of the bond hearings be provided in plain

9 language are consistent with the due process concerns of Casas, Singh, and Rodriguez

10 II. The bond hearing process would be fraught with peril if the Court were to place the

11 burden on detainees to request a bond hearing when the government is constitutionally

12 obligated to provide those hearings. Accordingly, comprehendible notice must be

13 provided to detainees for that notice to pass constitutional review.

14

Petitioners are entitled to judgment as a matter of law. Members of all four

15 subclasses – Sections 1231, 1226(a), 1226(c), and 1225(b) – should be afforded bond

16 hearings after six months of detention, consistent with Rodriguez II. The procedural

17 requirements of the bond hearings should be consistent with the findings of the Ninth

18 Circuit in Singh, and Rodriguez II. Additionally, bond hearings should be provided

19 automatically, and plain language notice, in writing, of the bond hearings should be

20 provided to detainees prior to the hearing.

21

It is further Ordered that Petitioners’ motion for summary judgment be, and

22 hereby is, Granted.

23

It is further Ordered that Respondents’ motion for summary judgment be, and

24 hereby is, Denied.

25

It is further Ordered, Adjudged and Decreedthat Judgment be, and hereby is,

26 Entered in favor of Petitioners and against Respondents.

27

It is further Orderedthat Respondents and their agents, employees, assigns, and

28 all those acting in concert with them be, and hereby are, Permanently Enjoined as follows:

Order, Judgment & Permanent Injunction – Page 4 of 6

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1

1. Respondents shall provide each class member, by the class member’s 181st

2 day of detention, with a a bond hearing before an Immigration Judge consistent with the

3 substantive and procedural requirements set forth in this Order and Casas, Singh, and

4 Rodriguez II.

5

2. The bond hearings shall be recorded or transcribed so that a written record

6 can be made available if an appeal is taken.

7

3. At least seven days prior to providing any bond hearing conducted pursuant

8 to this Order, Respondents shall provide written notice, in plain language, to the

9 detainee of his or her upcoming bond hearing. For notice to be sufficient, Respondents

10 must take reasonable steps to ensure receipt of the notice by the class member and class

11 counsel.

12

4. For class members who have already been detained for more than six

13 months as of the date of this order, but who have not yet received a bond hearing

14 pursuant to this Court’s preliminary injunction, Respondents shall provide a bond

15 hearing before an Immigration Judge consistent with the requirements of this Order and

16 Casas, Singh, and Rodriguez II,within 30 days of the date of this Order.

17

5. Within 60 days of the date of this Order, Respondents shall file a status

18 report describing the steps taken to timely identify all current and future class members

19 and to ensure that they receive bond hearings and notice of those hearings. Along with

20 the status report, Respondents shall file under seal (with a copy served on class counsel)

21 a list containing each class member’s name and alien number, the date of any scheduled

22 or completed bond hearing, whether the class member is or was represented, the

23 Immigration Judge who conducted or will conduct the hearing, the bond amount set, if

24 any, and whether any appeal has been taken. Respondents shall file and serve an

25 updated status report and class member list every 90 days thereafter until August 1,

26 2015. The updated reports and lists shall include the information for all class members

27 in detention as of the date of the prior report.

28

6. If Respondents determine that an individual is not a class member even

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1 though that individual (a) is detained in Respondents’ custody within the Central

2 District, (b) has been detained by Respondents for six months or longer, (c) is not

3 detained under 8 U.S.C. § 1226a or 8 U.S.C. § 1531-37, and (d) remains detained even

4 though the government does not have present authority to deport that individual,

5 Respondents shall notify class counsel of that individual’s circumstances and the reason

6 Respondents believe that individual is not a class member.

7

7. For class members in detention as of the date of this Order, Respondents

8 shall provide class counsel with notice of class member bond hearings at the same time

9 that they provide notice to class members directly.

10
11 Date: August 6, 2013
12

___________________________________

13

Terry J. Hatter, Jr.

14

Senior United States District Judge

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Order, Judgment & Permanent Injunction – Page 6 of 6

 
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ALEJANDRO RODRIGUEZ; ABDIRIZAK ADEN FARAH; JOSE FARIAS CORNEJO; YUSSUF ABDIKADIR; ABEL PEREZ RUELAS, for themselves and on behalf of a class of similarly situated individuals,
Petitioners-Appellees/ Cross-Appellants,

and

EFREN OROZCO,

Petitioner,

v.

TIMOTHY ROBBINS, Field Office Director, Los Angeles District, Immigration and Customs Enforcement; JEH JOHNSON, Secretary, Homeland Security; LORETTA E. LYNCH, Attorney General; WESLEY LEE, Assistant Field Office Director, Immigration and Customs Enforcement; RODNEY PENNER, Captain, Mira Loma Detention Center; SANDRA HUTCHENS, Sheriff of Orange County; NGUYEN, Officer, Officerin-Charge, Theo Lacy Facility;

Nos. 13-56706 13-56755
D.C. No. 2:07-cv-03239-
TJH-RNB
OPINION

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DAVIS NIGHSWONGER, Captain, Commander, Theo Lacy Facility; MIKE KREUGER, Captain, Operations Manager, James A. Musick Facility; ARTHUR EDWARDS, Officer-inCharge, Santa Ana City Jail; RUSSELL DAVIS, Jail Administrator, Santa Ana City Jail; JUAN P. OSUNA,* Director, Executive Office for Immigration Review,
Respondents-Appellants/ Cross-Appellees.

*Appeal from the United States District Court for the Central District of California
Terry J. Hatter, Senior District Judge, Presiding
Argued and Submitted July 24, 2015—Pasadena, California
Filed October 28, 2015
Before: Kim McLane Wardlaw and Ronald M. Gould, Circuit Judges and Sam E. Haddon,** District Judge.
Opinion by Judge Wardlaw
* Juan P. Osuna is substituted for his predecessor, Thomas G. Snow, as Director, Executive Office for Immigration Review, pursuant to Federal Rule of Appellate Procedure 43(c).
** The Honorable Sam E. Haddon, District Judge for the U.S. District Court for the District of Montana, sitting by designation.

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3

SUMMARY***

Immigration
The panel affirmed in part and reversed in part the district court’s order granting summary judgment and a permanent injunction in a class action lawsuit by non-citizens within the Central District of California challenging their prolonged detentions under civil immigration detention statutes 8 U.S.C. §§ 1225(b), 1226(a), 1226(c), and 1231(a) without individualized bond hearings or determinations to justify continued detention.
The panel affirmed the district court’s permanent injunction insofar as it required automatic bond hearings and required Immigration Judges to consider alternatives to detention. The panel also held that IJs must consider the length of detention and provide bond hearings every six months for class members detained longer than twelve months, but rejected the class’s request for additional procedural requirements.
The panel held that subclass members subject to prolonged detention under mandatory detention statutes §§ 1225(b) and 1226(c) are entitled to bond hearings, and that subclass members subject to discretionary detention under § 1226(a) are entitled to automatic bond hearings after six months of detention. In an issue this court had not previously addressed, the panel held that the government must provide periodic bond hearings every six months for non-citizens to
*** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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challenge their continued detention. The panel, however, concluded that no certified class-member is within the § 1231(a) subclass, defined as non-citizens detained pending completion of removal proceedings, and the panel therefore reversed the summary judgment and permanent injunction as to individuals detained under § 1231(a).

The panel remanded for the district court to enter a revised injunction consistent with its instructions.

COUNSEL
Sarah Stevens Wilson (argued), Theodore William Atkinson, Hans Harris Chen, Alisa Beth Klein, Robert I. Lester, Jaynie R. Lilley, Benjamin C. Mizer, Nicole Prairie, and Erez Reuveni, United States Department of Justice, Washington, D.C., for Respondents-Appellants/Cross-Appellees.
Ahilan Thevanesan Arulanantham (argued), Michael Kaufman (argued), Peter Jay Eliasberg, ACLU Foundation of Southern California, Los Angeles, California; Judy Rabinovitz, Michael K.T. Tan, ACLU Immigrants’ Rights Project, New York, New York; Cecillia D. Wang, ACLU Immigrants’ Rights Project, San Francisco, California; Jayashri Srikantiah, Stanford Law School Mills Legal Clinic, Stanford, California; Sean Ashley Commons, Wen Shen, Sidley Austin LLP, Los Angeles, California; Steven Andrew Ellis, Goodwin Procter LLP, Los Angeles, California, for Petitioners-Appellees/Cross-Appellants.
Nina Rabin, University of Arizona College of Law, Tucson, Arizona, for Amici Curiae Social Science Researchers and Professors.

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5

James H. Moon, James J. Farrell, Nathan M. Saper, Latham & Watkins LLP, Los Angeles, California, for Amici Curiae National Association of Criminal Defense Lawyers and the Judge David L. Bazelon Center for Mental Health Law.

Sarah H. Paoletti, University of Pennsylvania Law School Transnational Legal Clinic, Philadelphia, Pennsylvania, for Amici Curiae International Law Professors and Human Rights Clinicians and Clinical Programs.

Holly Stafford Cooper, University of California Davis Law School Immigration Law Clinic, Davis, California, for Amicus Curiae University of California Davis Law School Immigration Law Clinic.

OPINION
WARDLAW, Circuit Judge:
This is the latest decision in our decade-long examination of civil, i.e. non-punitive and merely preventative, detention in the immigration context. As we noted in our prior decision in this case, Rodriguez v. Robbins (Rodriguez II), 715 F.3d 1127 (9th Cir. 2013), thousands of immigrants to the United States are locked up at any given time, awaiting the conclusion of administrative and judicial proceedings that will determine whether they may remain in this country. In 2014, U.S. Immigration and Customs Enforcement (“ICE”) removed 315,943 individuals, many of whom were detained

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during the removal process.1 According to the most recently available statistics, ICE detains more than 429,000 individuals over the course of a year, with roughly 33,000 individuals in detention on any given day.2

Alejandro Rodriguez, Abdirizak Aden Farah, Jose Farias Cornejo, Yussuf Abdikadir, Abel Perez Ruelas, and Efren Orozco (“petitioners”) represent a certified class of noncitizens who challenge their prolonged detention pursuant to 8 U.S.C. §§ 1225(b), 1226(a), 1226(c), and 1231(a) without individualized bond hearings and determinations to justify their continued detention. Their case is now on appeal for the third time. After a three-judge panel of our court reversed the district court’s denial of petitioners’ motion for class certification, and after our decision affirming the district court’s entry of a preliminary injunction, the district court granted summary judgment to the class and entered a permanent injunction. Under the permanent injunction, the government must provide any class member who is subject to “prolonged detention”—six months or more—with a bond hearing before an Immigration Judge (“IJ”). At that hearing, the government must prove by clear and convincing evidence that the detainee is a flight risk or a danger to the community to justify the denial of bond. The government appeals from that judgment. We affirm in part and reverse in part.

1 U.S. Immigration and Customs Enforcement, Enforcement and Removal Operations Report 7 (2014), https://www.ice.gov/doclib/ about/offices/ero/pdf/2014-ice-immigration-removals.pdf.
2 U.S. Immigration and Customs Enforcement, ERO Facts and Statistics 3 (2011), http://www.ice.gov/doclib/foia/reports/ero-facts-andstatistics.pdf.

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7

I. Background

On May 16, 2007, Alejandro Garcia commenced this case by filing a petition for a writ of habeas corpus in the Central District of California. Garcia’s case was consolidated with a similar case filed by Alejandro Rodriguez, and the petitioners moved for class certification. The motion was denied on March 21, 2008.

A three-judge panel of our court reversed the district court’s order denying class certification.3 Rodriguez I, 591 F.3d 1105. We held that the proposed class satisfied each requirement of Federal Rule of Civil Procedure 23: The government conceded that the class was sufficiently numerous; each class member’s claim turned on the common question of whether detention for more than six months without a bond hearing raises serious constitutional concerns; Rodriguez’s claims were sufficiently typical of the class’s because “the determination of whether [he] is entitled to a bond hearing will rest largely on interpretation of the statute authorizing his detention”; and Rodriguez, through his counsel, adequately represented the class. Id. at 1122–25. The panel also noted that “any concern that the differing statutes authorizing detention of the various class members will render class adjudication of class members’ claims impractical or undermine effective representation of the class” could be addressed through “the formation of subclasses.” Id. at 1123.

3 Judge Betty Binns Fletcher was on the panel as originally constituted and authored the opinion in Rodriguez v. Hayes (Rodriguez I), 578 F.3d 1032 (9th Cir. 2009), amended by 591 F.3d 1105 (9th Cir. 2010). Judge Wardlaw was selected by random draw to replace Judge B. Fletcher on the panel following her death in 2012.

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The government petitioned our court for panel rehearing or rehearing en banc. In response, the panel amended the opinion to expand its explanation of why the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) does not bar certification of the class and, with that amendment, unanimously voted to deny the government’s petition. The full court was advised of the suggestion for rehearing en banc, and no judge requested a vote on whether to rehear the matter. See Fed. R. App. P. 35. The government did not file a petition for certiorari in the United States Supreme Court.

On remand, the district court certified a class defined as:

all non-citizens within the Central District of California who: (1) are or were detained for longer than six months pursuant to one of the general immigration detention statutes pending completion of removal proceedings, including judicial review, (2) are not and have not been detained pursuant to a national security detention statute, and (3) have not been afforded a hearing to determine whether their detention is justified.

The district court also approved the proposed subclasses, which correspond to the four statutes under which the class members are detained—8 U.S.C. §§ 1225(b), 1226(a), 1226(c), and 1231(a). The class does not include suspected terrorists, who are detained pursuant to 8 U.S.C. § 1537. Additionally, because the class is defined as non-citizens who are detained “pending completion of removal proceedings,” it excludes any detainee subject to a final order of removal.

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9

On September 13, 2012, the district court entered a preliminary injunction that applied to class members detained pursuant to two of these four “general immigration detention statutes”—§§ 1225(b) and 1226(c). Under the preliminary injunction, the government was required to “provide each [detainee] with a bond hearing” before an IJ and to “release each Subclass member on reasonable conditions of supervision . . . unless the government shows by clear and convincing evidence that continued detention is justified based on his or her danger to the community or risk of flight.”

The government appealed, and on April 16, 2013, we affirmed. See Rodriguez II, 715 F.3d 1127. We applied the Court’s preliminary injunction standard set forth in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), which requires the petitioner to “establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Rodriguez II, 715 F.3d at 1133.

Evaluating petitioners’ likelihood of success on the merits, we began with the premise that “[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.” Id. at 1134 (alterations in original) (quoting Zadvydas v. Davis, 533 U.S. 678, 690 (2001)). “Thus, the Supreme Court has held that the indefinite detention of a once-admitted alien ‘would raise serious constitutional concerns.’” Id. (quoting Zadvydas, 533 U.S. at 682).

Addressing those concerns, we recognized that we were not writing on a clean slate: “[I]n a series of decisions since

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2001, ‘the Supreme Court and this court have grappled in piece-meal fashion with whether the various immigration detention statutes may authorize indefinite or prolonged detention of detainees and, if so, may do so without providing a bond hearing.’” Id. (quoting Rodriguez I, 591 F.3d at 1114). First, in Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court resolved statutory and due process challenges to indefinite detention under 8 U.S.C. § 1231(a)(6), which governs detention beyond the ninety-day removal period, where removal was not practicable—for one petitioner because he was stateless, and for another because his home country had no repatriation treaty with the United States. See id. at 684–86. Drawing on civil commitment jurisprudence, the Court reasoned:

A statute permitting indefinite detention of an alien would raise a serious constitutional problem. The Fifth Amendment’s Due Process Clause forbids the Government to “depriv[e]” any “person . . . of . . . liberty . . . without due process of law.” Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects. See Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992). And this Court has said that government detention violates that Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections, see United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), or, in certain special and “narrow” nonpunitive “circumstances,”

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11

Foucha, supra, at 80, 112 S.Ct. 1780, where a special justification, such as harmthreatening mental illness, outweighs the “individual’s constitutionally protected interest in avoiding physical restraint.” Kansas v. Hendricks, 521 U.S. 346, 356, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997).

Id. at 690 (alterations in original). To avoid those “serious constitutional concerns,” the Court held that § 1231(a)(6) does not authorize indefinite detention without a bond hearing. Id. at 682, 699. Noting that the “proceedings at issue here are civil, not criminal,” id. at 690, the Court “construe[d] the statute to contain an implicit ‘reasonable time’ limitation,” id. at 682, and recognized six months as a “presumptively reasonable period of detention,” id. at 701.

Although in dissent, Justice Kennedy, joined by Chief Justice Rehnquist, disagreed with the majority’s application of the canon of constitutional avoidance and argued that the holding would improperly interfere with international repatriation negotiations, Justice Kennedy recognized that “both removable and inadmissible aliens are entitled to be free from detention that is arbitrary or capricious.” Id. at 721. Justice Kennedy further noted that although the government may detain non-citizens “when necessary to avoid the risk of flight or danger to the community,” due process requires “adequate procedures to review their cases, allowing persons once subject to detention to show that through rehabilitation, new appreciation of their responsibilities, or under other standards, they no longer present special risks or danger if put at large.” Id.

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Second, in Demore v. Kim, 538 U.S. 510 (2003), the Court addressed a due process challenge to mandatory detention under 8 U.S.C. § 1226(c), which applies to noncitizens convicted of certain crimes. Id. at 517–18. After discussing Congress’s reasons for establishing mandatory detention, namely, high rates of crime and flight by removable non-citizens, id. at 518–21, the Court affirmed its “longstanding view that the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings,” id. at 526. Distinguishing Zadvydas, the Court in Demore stressed that detention under § 1226(c) has “a definite termination point” and typically “lasts for less than the 90 days we considered presumptively valid in Zadvydas.” Id. at 529. Although the Court therefore upheld mandatory detention under § 1226(c), Justice Kennedy’s concurring opinion, which created the majority, reasoned that “a lawful permanent resident alien such as respondent could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified.” Id. at 532.

After Zadvydas and Demore, our court decided several cases that provided further guidance for our analysis in Rodriguez II. In Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005), we held that the constitutionality of detaining a lawful permanent resident under § 1226(c) for over 32 months was “doubtful.” Id. at 1242. “To avoid deciding the constitutional issue, we interpret[ed] the authority conferred by § 1226(c) as applying to expedited removal of criminal aliens” and held that “[t]wo years and eight months of process is not expeditious.” Id. We therefore remanded Tijani’s habeas petition to the district court with directions to grant

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13

the writ unless the government provided a bond hearing before an IJ within sixty days. Id.

We next considered civil detention in the immigration context in Casas-Castrillon v. Department of Homeland Security (Casas), 535 F.3d 942 (9th Cir. 2008). There, a lawful permanent resident who had been detained for nearly seven years under § 1226(c) and then § 1226(a) sought habeas relief while his petition for review of his removal order was pending before our court. Id. at 944–48. Applying Demore, we reasoned that § 1226(c) “authorize[s] mandatory detention only for the ‘limited period of [the non-citizen’s] removal proceedings,’ which the Court estimated ‘lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal’ his removal order to the [Board of Immigration Appeals (“BIA”)].” Id. at 950 (quoting Demore, 538 U.S. at 529). We therefore concluded that § 1226(c)’s mandatory detention provision applies only during administrative removal proceedings—i.e. until the BIA affirms a removal order. Id. at 951. From that point until the circuit court has “rejected [the applicant’s] final petition for review or his time to seek such review expires,” the government has discretionary authority to detain the noncitizen pursuant to § 1226(a). Id. at 948. We noted, however, that “[t]here is a difference between detention being authorized and being necessary as to any particular person.” Id. at 949. Because the Court’s holding in Demore turned on the brevity of mandatory detention under § 1226(c), we concluded that “the government may not detain a legal permanent resident such as Casas for a prolonged period without providing him a neutral forum in which to contest the necessity of his continued detention.” Id. at 949.

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Soon after, in Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011), we clarified the procedural requirements for bond hearings held pursuant to our decision in Casas (“Casas hearings”). In light of “the substantial liberty interest at stake,” we held that “due process requires a contemporaneous record of Casas hearings,” and that the government bears the burden of proving “by clear and convincing evidence that an alien is a flight risk or a danger to the community to justify denial of bond.” Id. at 1203, 1208. To evaluate whether the government has met its burden, we instructed IJs to consider the factors set forth in In re Guerra, 24 I. & N. Dec. 37 (BIA 2006), in particular “the alien’s criminal record, including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses.” Singh, 638 F.3d at 1206 (quoting Guerra, 24 I. & N. Dec. at 40).

Finally, in Diouf v. Napolitano (Diouf II), 634 F.3d 1081 (9th Cir. 2011), we extended the procedural protections established in Casas to individuals detained under § 1231(a)(6). Id. at 1086. We held that “prolonged detention under § 1231(a)(6), without adequate procedural protections,” like prolonged detention under § 1226(a), “would raise ‘serious constitutional concerns.’” Id. (quoting Casas, 535 F.3d at 950). To address those concerns, we held that “an alien facing prolonged detention under § 1231(a)(6) is entitled to a bond hearing before an immigration judge and is entitled to be released from detention unless the government establishes that the alien poses a risk of flight or a danger to the community.” Id. at 1092.

In Diouf II, we also adopted a definition of “prolonged” detention—detention that “has lasted six months and is expected to continue more than minimally beyond six

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15

months”—for purposes of administering the Casas bond hearing requirement. Id. at 1092 n.13. We reasoned that:

When detention crosses the six-month threshold and release or removal is not imminent, the private interests at stake are profound. Furthermore, the risk of an erroneous deprivation of liberty in the absence of a hearing before a neutral decisionmaker is substantial. The burden imposed on the government by requiring hearings before an immigration judge at this stage of the proceedings is therefore a reasonable one.

Id. at 1091–92.

Applying these precedents to Rodriguez class members detained under § 1226(c), which requires civil detention of non-citizens previously convicted of certain crimes who have already served their state or federal periods of incarceration, we have concluded that “the prolonged detention of an alien without an individualized determination of his dangerousness or flight risk would be constitutionally doubtful.” Rodriguez II, 715 F.3d at 1137 (quoting Casas, 535 F.3d at 951). To avoid these constitutional concerns, we held that “§ 1226(c)’s mandatory language must be construed ‘to contain an implicit reasonable time limitation, the application of which is subject to federal-court review.’” Id. at 1138 (quoting Zadvydas, 533 U.S. at 682). “[W]hen detention becomes prolonged,” i.e., at the six-month mark, “§ 1226(c) becomes inapplicable”; the government’s authority to detain the noncitizen shifts to § 1226(a), which provides for discretionary detention; and detainees are then entitled to bond hearings. Id.

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In so holding, we rejected the government’s attempt to distinguish Casas on the basis that “Casas concerned an alien who had received an administratively final removal order, sought judicial review, and obtained a remand to the BIA,” whereas this case involves “aliens awaiting the conclusion of their initial administrative proceedings.” Id. at 1139. We found that this argument reflected “a distinction without a difference”: “‘Regardless of the stage of the proceedings, the same important interest is at stake—freedom from prolonged detention.’” Id. (quoting Diouf II, 634 F.3d at 1087).

We also noted that our conclusion was consistent with the decisions of the two other circuits that have directly addressed this issue. In Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011), the Third Circuit, applying the canon of constitutional avoidance, construed § 1226(c) to“authorize[] detention for a reasonable amount of time, after which the authorities must make an individualized inquiry into whether detention is still necessary to fulfill the statute’s purposes of ensuring that an alien attends removal proceedings and that his release will not pose a danger to the community.” Id. at 231. Applying that holding to the facts of the case, the Third Circuit held that the petitioner’s detention, which had lasted nearly three years, “was unconstitutionally unreasonable and, therefore, a violation of the Due Process Clause.” Id. at 233. Although the court declined to adopt a categorical definition of a “reasonable amount of time” to detain a non-citizen without a bond hearing, it read Demore as we do—to connect the constitutionality of detention to its length and to authorize detention only for a “limited time.” Id. at 233–34.

Likewise, in Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003), the Sixth Circuit held that, to avoid a constitutional problem,

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removable non-citizens may be detained under § 1226(c) only “for a reasonable period of time required to initiate and conclude removal proceedings promptly.” Id. at 273. Finding that the petitioner’s 500-day-long detention was “unreasonable,” the Sixth Circuit affirmed the district court’s grant of a writ of habeas corpus. Id. at 265, 271. While maintaining that a “bright-line time limitation, as imposed in Zadvydas, would not be appropriate for the pre-removal period,” the court recognized that Demore’s holding “rel[ies] on the fact that Kim, and persons like him, will normally have their proceedings completed within a short period of time and will actually be deported, or will be released.” Id. at 271.

As to the Rodriguez subclass detained under § 1225(b), we found “no basis for distinguishing between” non-citizens detained under that section and under § 1226(c). Rodriguez II, 715 F.3d at 1143. The cases relied upon by the government for the proposition that arriving aliens are entitled to lesser due process protections—namely, Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953) and Barrera–Echavarria v. Rison, 44 F.3d 1441 (9th Cir. 1995) (en banc)—were decided under pre-IIRIRA law and, as such, were inapposite. Id. at 1140–41. We therefore held that “to the extent detention under § 1225(b) is mandatory, it is implicitly time-limited.” Id. at 1144. As we had with § 1226(c), we explained that “the government’s detention authority does not completely dissipate at six months; rather, the mandatory provisions of § 1225(b) simply expire at six months, at which point the government’s authority to detain the non-citizen would shift to § 1226(a), which is discretionary and which we have already held requires a bond hearing.” Id. (citing Casas, 535 F.3d at 948).

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After establishing that class members detained under § 1226(c) and § 1225(b) are entitled to bond hearings after six months of detention, we clarified that the procedural requirements set forth in Singh apply to those hearings. Id. at 1139, 1144 (citing Singh, 638 F.3d at 1203). These requirements include proceedings before “a neutral IJ” at which “the government bear[s] the burden of proof by clear and convincing evidence,” id. at 1144 (citing Singh, 638 F.3d at 1203–04), a lower burden of proof than that required to sustain a criminal charge.

Having found that the class was likely to succeed on the merits, we turned to the other preliminary injunction factors. We found that the class members “clearly face irreparable harm in the absence of the preliminary injunction” because “the deprivation of constitutional rights unquestionably constitutes irreparable injury.” Id. (citations omitted). The preliminary injunction safeguards constitutional rights by ensuring that “individuals whom the government cannot prove constitute a flight risk or a danger to public safety, and sometimes will not succeed in removing at all, are not needlessly detained.” Id. at 1145. Similarly, we found that the balance of equities favored the class members because “needless prolonged detention” imposes “major hardship,” whereas the government “cannot suffer harm from an injunction that merely ends an unlawful practice or reads a statute as required to avoid constitutional concerns.” Id. Finally, we held that the preliminary injunction was consistent with the public interest, which is “implicated when a constitutional right has been violated,” and “benefits from a preliminary injunction that ensures that federal statutes are construed and implemented in a manner that avoids serious constitutional questions.” Id. at 1146. We therefore affirmed the district court’s order.

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During the pendency of Rodriguez II, the parties conducted discovery, and class counsel adduced extensive evidence detailing the circumstances under which class members are detained. The parties then filed cross-motions for summary judgment, and the petitioners moved for a permanent injunction to extend and expand the preliminary injunction.

On August 6, 2013, after we issued our decision in Rodriguez II, the district court granted summary judgment to the class members and entered a permanent injunction. The permanent injunction applies to class members detained under any of the four civil “general immigration detention statutes”—§§ 1225(b), 1226(a), 1226(c), and 1231(a)—and requires the government to provide each detainee with a bond hearing by his 195th day of detention. Applying our decisions in Casas, Singh, and Rodriguez II, the district court further ordered that bond hearings occur automatically, that detainees receive “comprehendible notice,” that the government bear the burden of proving “by clear and convincing evidence that a detainee is a flight risk or a danger to the community to justify the denial of bond,” and that hearings are recorded. However, the district court declined to order IJs to consider the length of detention or the likelihood of removal during bond hearings, or to provide periodic hearings for detainees who are not released after their first hearing.

The government now appeals from the entry of the permanent injunction, arguing that the district court—and we—erred in applying the canon of constitutional avoidance to each of the statutes at issue. Relying on the Supreme Court’s decisions in Zadvydas and Demore, the government argues that none of the subclasses are categorically entitled to

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bond hearings after six months of detention. Accordingly, the government contends that we should decertify the class and instead permit as-applied challenges to individual instances of prolonged detention, which could occur only through habeas proceedings. Petitioners counter that Rodriguez II is the law of the case and law of the circuit, requiring us to affirm the permanent injunction as to the § 1225(b) and § 1226(c) subclasses, and that non-citizens detained pursuant to § 1226(a) and § 1231(a) are entitled to bond hearings for reasons similar to those discussed in Rodriguez II. Petitioners cross-appeal the district court’s order as to the procedural requirements for bond hearings; they argue that the district court erred in declining to require that IJs consider the likelihood of removal and the total length of detention, and in declining to require that non-citizens detained for twelve or more months receive periodic bond hearings every six months.

II. Nature of Civil Immigration Detention

Class members spend, on average, 404 days in immigration detention. Nearly half are detained for more than one year, one in five for more than eighteen months, and one in ten for more than two years. In some cases, detention has lasted much longer: As of April 28, 2012, when the government generated data to produce to the petitioners, one class member had been detained for 1,585 days, approaching four and a half years of civil confinement.4

4 The government challenges the accuracy of these figures, which are drawn from petitioners’ expert report, based on disagreements with that expert’s methodology. Using the government’s preferred data set and process generates an average detention length of 347 days and a range of 180 to 1,037 days of civil detention for each non-citizen. Under either set

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Non-citizens who vigorously pursue claims for relief from removal face substantially longer detention periods than those who concede removability. Requesting relief from an IJ increases the duration of class members’ detention by an average of two months; appealing a claim to the BIA adds, on average, another four months; and appealing a BIA decision to the Ninth Circuit typically leads to an additional eleven months of confinement. Class members who persevere through this lengthy process are often successful: About 71% of class members have sought relief from removal, and roughly one-third of those individuals prevailed. However, many detainees choose to give up meritorious claims and voluntarily leave the country instead of enduring years of immigration detention awaiting a judicial finding of their lawful status.

Class members frequently have strong ties to this country: Many immigrated to the United States as children, obtained legal permanent resident status, and lived in this country for as long as twenty years before ICE initiated removal proceedings. As a result, hundreds of class members are married to U.S. citizens or lawful permanent residents, and have children who were born in this country. Further, many class members hold steady jobs—including as electricians, auto mechanics, and roofers—to provide for themselves and their families. At home, they are caregivers for young children, aging parents, and sick or disabled relatives. To the extent class members have any criminal record—and many have no criminal history whatsoever—it is often limited to minor controlled substances offenses. Accordingly, when class members do receive bond hearings, they often produce

of figures, typical class members are detained for well over 180 days. The differences in precise numbers are not material to our decision.

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glowing letters of support from relatives, friends, employers, and clergy attesting to their character and contributions to their communities.

Prolonged detention imposes severe hardship on class members and their families. Civil immigration detainees are treated much like criminals serving time: They are typically housed in shared jail cells with no privacy and limited access to larger spaces or the outdoors. Confinement makes it more difficult to retain or meet with legal counsel, and the resources in detention facility law libraries are minimal at best, thereby compounding the challenges of navigating the complexities of immigration law and proceedings. In addition, visitation is restricted and is often no-contact, dramatically disrupting family relationships. While in detention, class members have missed their children’s births and their parents’ funerals. After losing a vital source of income, class members’ spouses have sought government assistance, and their children have dropped out of college.

Lead petitioner Alejandro Rodriguez’s story is illustrative. Rodriguez came to the United States as an infant and has lived here continuously since then. Rodriguez is a lawful permanent resident of the United States, and his entire immediate family—including his parents, siblings, and three young children—also resides in the United States as citizens or lawful permanent residents. Before his removal proceedings began, Rodriguez worked as a dental assistant. In 2003, however, Rodriguez was convicted of possession of a controlled substance and sentenced to five years of probation and no jail time. He had one previous conviction, for “joyriding.”

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In 2004, ICE commenced removal proceedings and subjected Rodriguez to civil detention. An IJ determined that Rodriguez’s prior conviction for “joyriding,” i.e. driving a stolen vehicle, qualified as an “aggravated felony” that rendered him ineligible for relief in the form of cancellation of removal, and therefore ordered him removed. Rodriguez appealed the IJ’s decision to the BIA, which affirmed, and then to the Ninth Circuit. In July 2005, a three-judge panel of our court granted the government’s motion to hold Rodriguez’s case in abeyance until the Supreme Court decided a related case, Gonzales v. Penuliar, 549 U.S. 1178 (2007), which issued eighteen months later, in January 2007. In Penuliar, the Supreme Court vacated our court’s opinion and remanded for further consideration in light of Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), which held that violating a California statute prohibiting taking a vehicle without the owner’s consent qualifies as a “theft offense.” Between July 2005 and January 2007, while Rodriguez’s case was in abeyance, ICE conducted four custody reviews on Rodriguez and repeatedly determined that Rodriguez was required to remain in detention until our court issued a decision on the merits of his claim. In mid-2007, about a month after Rodriguez had moved for class certification, however, ICE released him. At that point, Rodriguez had been detained for 1,189 days, roughly three years and three months. In April 2008, in the related case on remand from the Supreme Court, our court held that driving a stolen vehicle did not qualify as an aggravated felony. Penuliar v. Mukasey, 528 F.3d 603, 614 (9th Cir. 2008). On motion of the parties, we then remanded Rodriguez’s petition to the BIA, which granted his application for cancellation of removal, vindicating his right to lawfully remain in the United States.

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III. Standard of Review

“We review a grant of summary judgment de novo.” Pavoni v. Chrysler Grp., LLC, 789 F.3d 1095, 1098 (9th Cir. 2015). “A permanent injunction ‘involves factual, legal, and discretionary components,’ so we ‘review a decision to grant such relief under several different standards.’” Vietnam Veterans of Am. v. C.I.A., 791 F.3d 1122, 1129 (9th Cir. 2015) (quoting Momot v. Mastro, 652 F.3d 982, 986 (9th Cir. 2011)). “We review legal conclusions . . . de novo, factual findings for clear error, and the scope of the injunction for abuse of discretion.” Id.

IV. Discussion

In resolving whether the district court erred in entering the permanent injunction, we consider, first, petitioners’ entitlement to bond hearings and, second, the procedural requirements for such hearings. Based on our precedents, we hold that the canon of constitutional avoidance requires us to construe the statutory scheme to provide all class members who are in prolonged detention with bond hearings at which the government bears the burden of proving by clear and convincing evidence that the class member is a danger to the community or a flight risk. However, we also conclude that individuals detained under § 1231(a) are not members of the certified class. We affirm the district court’s order insofar as it requires automatic bond hearings and requires IJs to consider alternatives to detention because we presume, like the district court, that IJs are already doing so when

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determining whether to release a non-citizen on bond.5 Because the same constitutional concerns arise when detention approaches another prolonged period, we hold that IJs must provide bond hearings periodically at six month intervals for class members detained for more than twelve months. However, we reject the class’s suggestion that we mandate additional procedural requirements.

A. Civil Detention

“In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987). Civil detention violates the Due Process Clause except “in certain special and narrow nonpunitive circumstances, where a special justification, such as harm-threatening mental illness, outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” Zadvydas, 533 U.S. at 690 (citations omitted). Consistent with these principles, the Supreme Court has—outside of the immigration context—found civil detention constitutional without any individualized showing of need only when faced with the unique exigencies of global war or domestic insurrection. See Ludecke v. Watkins, 335 U.S. 160 (1948); Korematsu v.

5 See 8 C.F.R. § 241.4(f) (listing factors that Department of Homeland Security (“DHS”) must “weigh[] in considering whether to recommend further detention or release of a detainee,” including the detainee’s criminal history, evidence of recidivism or rehabilitation, ties to the United States, history of absconding or failing to appear for immigration or other proceedings, and the likelihood that the detainee will violate the conditions of release); id. § 1236.1(d)(1) (authorizing IJs to “detain the alien in custody, release the alien, and determine the amount of bond, if any, under which the respondent may be released” and to “ameliorat[e] the conditions” of release imposed by DHS).

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United States, 323 U.S. 214 (1944); Moyer v. Peabody, 212 U.S. 78 (1909).6 And even in those extreme circumstances, the Court’s decisions have been widely criticized. See, e.g., Eugene V. Rostow, The Japanese American Cases—A Disaster, 54 Yale L.J. 489 (1945). In all contexts apart from immigration and military detention, the Court has found that the Constitution requires some individualized process and a judicial or administrative finding that a legitimate governmental interest justifies detention of the person in question.

For example, in numerous cases addressing the civil detention of mentally ill persons, the Court has consistently recognized that such commitment “constitutes a significant deprivation of liberty,” and so the state “must have a constitutionally adequate purpose for the confinement.” Jones v. United States, 463 U.S. 354, 361 (1983) (citations omitted). Further, the “nature and duration of commitment” must “bear some reasonable relation to the purpose for which the individual is committed.” Jones, 463 U.S. at 368 (citation omitted).

Accordingly, the state may detain a criminal defendant found incapable of standing trial, but only for “the reasonable period of time necessary to determine whether there is a substantial probability that he will attain [the] capacity [to stand trial] in the foreseeable future.” Jackson v. Indiana,

6 For a thorough discussion of civil detention jurisprudence and its bearing on the constitutionality of civil detention in the immigration context, see Farrin R. Anello, Due Process and Temporal Limits on Mandatory Immigration Detention, 65 Hastings L.J. 363 (2014), and David Cole, In Aid of Removal: Due Process Limits on Immigration Detention, 51 Emory L.J. 1003 (2002).

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406 U.S. 715, 738 (1972). At all times, the individual’s “commitment must be justified by progress toward that goal.” Id. Likewise, the state may detain a criminal defendant following an acquittal by reason of insanity in order to “treat the individual’s mental illness and protect him and society from his potential dangerousness.” Jones, 463 U.S. at 368. However, the detainee “is entitled to release when he has recovered his sanity or is no longer dangerous.” Id.; see also Foucha v. Louisiana, 504 U.S. 71, 78 (1992) (“[K]eeping Foucha against his will in a mental institution is improper absent a determination in civil commitment proceedings of current mental illness and dangerousness.”). Further, although the state may detain sexually dangerous individuals even after they have completed their criminal sentences, such confinement must “take[] place pursuant to proper procedures and evidentiary standards.” Kansas v. Hendricks, 521 U.S. 346, 357 (1997). To “justify indefinite involuntary commitment,” the state must prove both “dangerousness” and “some additional factor, such as a ‘mental illness’ or ‘mental abnormality.’” Id. at 358 (collecting cases).

Similarly, the Court has held that pretrial detention of individuals charged with “the most serious of crimes” is constitutional only because, under the Bail Reform Act, an “arrestee is entitled to a prompt detention hearing” to determine whether his confinement is necessary to prevent danger to the community. Salerno, 481 U.S. at 747. Further, “the maximum length of pretrial detention is limited by the stringent time limitations of the Speedy Trial Act.” Id.; see also Schall v. Martin, 467 U.S. 253, 263 (1984) (upholding a statute that “permits a brief pretrial detention based on a finding of a ‘serious risk’ that an arrested juvenile may commit a crime before his return date”).

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In addition, the Court has held that incarceration of individuals held in civil contempt is consistent with due process only where the contemnor receives adequate procedural protections and the court makes specific findings as to the individual’s ability to comply with the court order. See Turner v. Rogers, 131 S. Ct. 2507, 2520 (2011). If compliance is impossible—for instance, if the individual lacks the financial resources to pay court-ordered child support—then contempt sanctions do not serve their purpose of coercing compliance and therefore violate the Due Process Clause. See id.

Early cases upholding immigration detention policies were a product of their time. See Carlson v. Landon, 342 U.S. 524 (1952) (McCarthy Era deportation of communists); Ludecke v. Watkins, 335 U.S. 160 (1948) (removal of German enemy aliens during World War II); Wong Wing v. United States, 163 U.S. 228 (1896) (Chinese exclusion). Yet even these cases recognized some limits on detention of non-citizens pending removal. Such detention may not be punitive—Congress may not, for example, impose sentences of “imprisonment at hard labor” on non-citizens awaiting deportation, Wong Wing, 163 U.S. at 235—and it must be supported by a legitimate regulatory purpose. Under these principles, the Court authorized the “detention or temporary confinement” of Chinese-born non-citizens “pending the inquiry into their true character, and while arrangements were being made for their deportation.” Id. The Court also upheld executive detention of enemy aliens after the cessation of active hostilities because deportation is “hardly practicable” in the midst of war, and enemy aliens’ “potency for mischief” continues “even when the guns are silent.” Ludecke, 335 U.S. at 166. Similarly, the Court approved detention of communists to limit their

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“opportunities to hurt the United States during the pendency of deportation proceedings.” Carlson, 342 U.S. at 538. The Court recognized, however, that “purpose to injure could not be imputed generally to all aliens subject to deportation.” Id. at 538. Rather, if the Attorney General wished to exercise his discretion to deny bail, he was required to do so at a hearing, the results of which were subject to judicial review. Id. at 543.

More recently, the Supreme Court has drawn on decades of civil detention jurisprudence to hold that “[a] statute permitting indefinite detention of an alien would raise a serious constitutional problem.” Zadvydas, 533 U.S. at 690. Although the state has legitimate interests in “ensuring the appearance of aliens at future immigration proceedings” and “protecting the community,” post–removal period detention does not uniformly “‘bear[] [a] reasonable relation to the purpose for which the individual [was] committed.’” Id. (second and third alterations in original) (quoting Jackson, 406 U.S. at 738). To avoid constitutional concerns, the Court construed 8 U.S.C. § 1231(a)(6), the statute governing post–removal period detention, to “limit[] an alien’s post-removal-period detention to a period reasonably necessary to bring about that alien’s removal from the United States.” Id. at 689. Detention beyond that point requires “strong procedural protections” and a finding that the noncitizen is “specially dangerous.” Id. at 691.

Soon after Zadvydas, the Court rejected a due process challenge to mandatory detention under 8 U.S.C. § 1226(c), which applies to non-citizens convicted of certain crimes. Demore, 538 U.S. at 517–18. While affirming its “longstanding view that the Government may constitutionally detain deportable aliens during the limited period necessary

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for their removal proceedings,” id. at 526, the Court emphasized that detention under § 1226(c) was constitutionally permissible because it has “a definite termination point” and typically “lasts for less than . . . 90 days,” id. at 529.

Since Zadvydas and Demore, our court has “grappled in piece-meal fashion with whether the various immigration detention statutes may authorize indefinite or prolonged detention of detainees and, if so, may do so without providing a bond hearing.” Rodriguez II, 715 F.3d at 1134 (quoting Rodriguez I, 591 F.3d at 1114). As we recognized in Casas, “prolonged detention without adequate procedural protections would raise serious constitutional concerns.” Casas, 535 F.3d at 950; see also Rodriguez II, 715 F.3d at 1144 (discussing “the constitutional concerns raised by prolonged mandatory detention”); Singh, 638 F.3d at 1208 (“The private interest here—freedom from prolonged detention—is unquestionably substantial.”); Diouf II, 634 F.3d at 1085 (“When the period of detention becomes prolonged, ‘the private interest that will be affected by the official action’ is more substantial; greater procedural safeguards are therefore required.”) (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). We have therefore held that non-citizens detained pursuant to § 1226(a) and § 1231(a)(6) are entitled to bond hearings before an IJ when detention becomes prolonged. See Casas, 535 F.3d at 949 (requiring bond hearings for individuals detained under § 1226(a)); Diouf II, 634 F.3d at 1084 (extending Casas to individuals detained under § 1231(a)(6)).

While the government falsely equates the bond hearing requirement to mandated release from detention or facial invalidation of a general detention statute, our precedents

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make clear that there is a distinction “between detention being authorized and being necessary as to any particular person.” Casas, 535 F.3d at 949. Bond hearings do not restrict the government’s legitimate authority to detain inadmissible or deportable non-citizens; rather, they merely require the government to “justify denial of bond” with clear and convincing “evidence that an alien is a flight risk or danger to the community.” Singh, 638 F.3d at 1203. And, in the end, the government is required only to establish that it has a legitimate interest reasonably related to continued detention; the discretion to release a non-citizen on bond or other conditions remains soundly in the judgment of the immigration judges the Department of Justice employs.

Prior decisions have also clarified that detention becomes “prolonged” at the six-month mark. In Zadvydas, the Supreme Court recognized six months as a “presumptively reasonable period of detention.” 533 U.S. at 701. By way of background, the Court noted that in 1996, Congress had “shorten[ed] the removal period from six months to 90 days.” Id. at 698. The Court then explained:

While an argument can be made for confining any presumption to 90 days, we doubt that when Congress shortened the removal period to 90 days in 1996 it believed that all reasonably foreseeable removals could be accomplished in that time. We do have reason to believe, however, that Congress previously doubted the constitutionality of detention for more than six months. Consequently, for the sake of uniform administration in the federal courts, we recognize that period.

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Id. at 701 (citation omitted); see also Clark v. Martinez, 543 U.S. 371, 386 (2005) (applying “the 6–month presumptive detention period” the Supreme Court “prescribed in Zadvydas”); cf. Nadarajah v. Gonzales, 443 F.3d 1069, 1078–79 (9th Cir. 2006) (discussing the Patriot Act’s requirement that “detention of suspected terrorists or other threats to national security” be reviewed “at six month intervals”). Following Zadvydas, we have defined detention as “prolonged” when “it has lasted six months and is expected to continue more than minimally beyond six months.” Diouf II, 634 F.3d at 1092 n.13.7 At that point, we have explained, “the private interests at stake are profound,” and “the risk of an erroneous deprivation of liberty in the absence of a hearing before a neutral decisionmaker is substantial.” Id. at 1092.

B. Entitlement to a Bond Hearing

With this well-established precedent of the Supreme Court and our Court in mind, we review the district court’s grant of summary judgment and entry of a permanent injunction. We consider, in turn, whether individuals detained under §§ 1226(c), 1225(b), 1226(a), and 1231(a) are entitled to bond hearings after they have been detained for six months.

1. The § 1226(c) Subclass

Section 1226(c) requires that the Attorney General detain any non-citizen who is inadmissible or deportable because of

7 As we noted in Rodriguez II, this holding does not conflict with the Supreme Court’s decision in Demore, 538 U.S. 510, which approved only “brief period[s]” of detention without individualized determinations as to dangerousness and flight risk. Demore, 538 U.S. at 513, 523.

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his criminal history upon that person’s release from imprisonment, pending proceedings to remove him from the United States.8 Detention under § 1226(c) is mandatory. Individuals detained under that section are not eligible for release on bond or parole, see 8 U.S.C. § 1226(a); they may be released only if the Attorney General deems it “necessary” for witness protection purposes, id. § 1226(c)(2).

An individual detained under § 1226(c) may ask an IJ to reconsider whether the mandatory detention provision applies to him, see 8 C.F.R. § 1003.19(h)(2)(ii), but such review is limited in scope and addresses only whether the individual is properly included in a category of non-citizens subject to mandatory detention based on his criminal history. See generally In re Joseph, 22 I. & N. Dec. 799 (BIA 1999). At a “Joseph hearing,” a detainee “may avoid mandatory detention by demonstrating that he is not an alien, was not

8 Mandatory detention under § 1226(c) applies to non-citizens who are inadmissible on account of having committed a crime involving moral turpitude or a controlled substance offense; having multiple criminal convictions with an aggregate sentence of five years or more of confinement; having connections to drug trafficking, prostitution, commercialized vice, money laundering, human trafficking, or terrorism; having carried out severe violations of religious freedom while serving as a foreign government official; or having been involved in serious criminal activity and asserting immunity from prosecution. It also applies to noncitizens who are deportable on account of having been convicted of two or more crimes involving moral turpitude, an aggravated felony, a controlled substance offense, certain firearm-related offenses, or certain other miscellaneous crimes; having committed a crime of moral turpitude within a certain period of time since their date of admission for which a sentence of one year or longer has been imposed; or having connections to terrorism. See 8 U.S.C. § 1226(c) (cross-referencing 8 U.S.C. §§ 1182(a)(2), 1227(a)(2)(A)(ii), 1227(a)(2)(A)(iii), 1227(a)(2)(B), 1227(a)(2)(C), 1227(a)(2)(D), 1227(a)(2)(A)(i), 1182(a)(3)(B), 1227(a)(4)(B)).

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convicted of the predicate crime, or that the [DHS] is otherwise substantially unlikely to establish that he is in fact subject to mandatory detention.” Demore, 538 U.S. at 514 n.3. “A determination in favor of an alien” at a Joseph hearing “does not lead to automatic release,” Joseph, 22 I. & N. Dec. at 806, because the government retains discretionary authority to detain the individual under § 1226(a). Instead, such a determination allows the IJ to consider granting bond under the § 1226(a) standards, namely, whether the detainee would pose a danger or flight risk if released. See id.; see also Demore, 538 U.S. at 532 (Kennedy, J., concurring).

As a result of § 1226(c)’s mandatory language and the limited review available through a Joseph hearing, individuals are often detained for years without adequate process. See, e.g., Tijani, 430 F.3d at 1242 (lawful permanent resident detained for more than two and a half years). Members of the § 1226(c) subclass also tend to be detained for longer periods than other class members: The longestdetained class member was confined for 1,585 days and counting as of April 28, 2012, and the average subclass member faces detention for 427 days. These lengthy detention times bear no relationship to the seriousness of class members’ criminal history or the lengths of their previously served criminal sentences. In several instances identified by class counsel, a class member was sentenced to one to three months in prison for a minor controlled substances offense, then endured one or two years in immigration detention. Nor do these detention durations bear any relation to the merits of the subclass members’ claims: Of the § 1226(c) subclass members who apply for relief from removal, roughly 40% are granted such relief, a rate even higher than that of the overall class.

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In Rodriguez II, we held that “the prolonged detention of an alien [under § 1226(c)] without an individualized determination of his dangerousness or flight risk would be constitutionally doubtful.” 715 F.3d at 1137–38 (quoting Casas, 535 F.3d at 951). To avoid these “constitutional concerns, § 1226(c)’s mandatory language must be construed ‘to contain an implicit reasonable time limitation.’” Id. at 1138 (quoting Zadvydas, 533 U.S. at 682). Accordingly, at the six-month mark, “when detention becomes prolonged, § 1226(c) becomes inapplicable,” and “the Attorney General’s detention authority rests with § 1226(a).” Id. (citation omitted). Under Casas, those detainees are then entitled to a bond hearing. See id. (discussing Casas, 535 F.3d at 951).

Contrary to the government’s argument, this holding is consistent with the text of § 1226(c), which requires that the government detain certain non-citizens but does not mandate such detention for any particular length of time. See id. at 1138–39 (The government “does not argue that reading an implicit temporal limitation on mandatory detention into the statute is implausible. Indeed, it could not do so, because such an argument is foreclosed by our decisions in Tijani and Casas.”) (alterations in original) (citation omitted). Our holding is also consistent with the Supreme Court’s decision in Demore, which turned on the brevity of the detention at issue. See Demore, 538 U.S. at 513 (holding that Congress may require detention “for the brief period necessary for [a non-citizen’s] removal proceedings”); id. at 526 (discussing the “longstanding view that the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings”); id. at 530 n.12 (emphasizing the “very limited time of the detention at stake under § 1226(c)”).

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Since Rodriguez II, no intervening changes in the law have affected our conclusions. Neither the Supreme Court nor our Circuit has had occasion to reexamine these issues, and the Third and Sixth Circuits have not changed the positions they adopted in Diop and Ly, respectively. See Chavez-Alvarez v. Warden, York Cnty. Prison, 783 F.3d 469, 478 (3d Cir. 2015) (finding petitioner’s detention unreasonable under the Diop framework); cf. Hernandez v. Prindle, No. 15-10, 2015 WL 1636138, at *7 (E.D. Ky. Apr. 13, 2015) (citing Ly for the proposition that a “short” period of detention “to effectuate effective removal,” “does not raise due process concerns”), appeal dismissed (6th Cir. 2015).

Moreover, district courts have relied on Rodriguez II in resolving numerous habeas petitions filed by immigration detainees. See, e.g., Castaneda v. ICE Field Office Dir., No. 14-1427, 2015 WL 71584, at *2–3 (W.D. Wash. Jan. 6, 2015) (addressing whether the petitioner’s bond hearing complied with the requirements of Rodriguez II); Garcia-Perez v. Kane, No. 13-01870, 2014 WL 3339794, at *2 (D. Ariz. July 8, 2014) (noting that, under Rodriguez II, “detention always becomes prolonged at six months,” but denying a habeas petition because petitioner “has not been detained for longer than six months”); Lopez v. Napolitano, No. 12-01750, 2014 WL 1091336, at *4–6 (E.D. Cal. Mar. 18, 2014) (extending Rodriguez II to a non-citizen detained under § 1226(a) pending reinstatement of a previously issued removal order); Franco-Gonzalez v. Holder, No. 10-02211, 2013 WL 3674492, at *10–13 (C.D. Cal. Apr. 23, 2013) (applying Rodriguez II in holding that a class of non-citizens detained under §§ 1225(b), 1226, and 1231 are entitled to bond hearings after six months of detention).

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Thus, Rodriguez II is law of the case and law of the circuit. As we recently explained, the “law of the case doctrine” provides that “a court will generally refuse to reconsider an issue that has already been decided by the same court or a higher court in the same case.” Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc), aff’d sub nom. Arizona v. Inter Tribal Council of Ariz., Inc., 133 S. Ct. 2247 (2013); see also Gonzales v. U.S. Dep’t of Homeland Sec., 712 F.3d 1271, 1278 (9th Cir. 2013); Bernhardt v. Los Angeles County, 339 F.3d 920, 924 (9th Cir. 2003). Likewise, pursuant to the “‘law of the circuit’ rule,” “a published decision of this court constitutes binding authority which ‘must be followed unless and until overruled by a body competent to do so.’” Gonzalez, 677 F.3d at 389 n.4 (quoting Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001)); see also United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en banc) (“[W]here a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit . . . .”).

The “‘general rule’ is that our decisions ‘at the preliminary injunction phase do not constitute the law of the case.’” Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1075 n.5 (9th Cir. 2015) (quoting Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. Dep’t of Agric., 499 F.3d 1108, 1114 (9th Cir. 2007)). Because preliminary injunction decisions are often “made hastily and on less than a full record,” they “may provide little guidance as to the appropriate disposition on the merits.” Ctr. for Biological Diversity v. Salazar, 706 F.3d 1085, 1090 (9th Cir. 2013) (citations omitted); see also S. Or. Barter Fair v. Jackson County, 372 F.3d 1128, 1136 (9th Cir. 2004). However, “there is an exception to the general rule for ‘conclusions on

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pure issues of law.’” Stormans, 794 F.3d at 1075 n.5 (quoting Alpha Delta Chi–Delta Chapter v. Reed, 648 F.3d 790, 804–05 (9th Cir. 2011)); see also Ranchers Cattlemen, 499 F.3d at 1114 (“Any of our conclusions on pure issues of law, however, are binding.”).

The question resolved in Rodriguez II—whether noncitizens subject to prolonged detention under § 1226(c) are entitled to bond hearings—is a pure question of law. We interpreted the statute by applying the canon of constitutional avoidance, and were bound to do so by our prior precedent. The decision was not made “hastily”; it provided a “fully considered appellate ruling” on the legal issues. Ranchers Cattlemen, 499 F.3d at 1114 (quoting 18 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4478.5 (2002)). We therefore follow Rodriguez II as law of the case and law of the circuit.9

2. The § 1225(b) Subclass

Section 1225(b) applies to “applicants for admission” who are stopped at the border or a port of entry, or who are “present in the United States” but “ha[ve] not been admitted.” 8 U.S.C. § 1225(a)(1). The statute provides that asylum

9 The government’s primary arguments regarding § 1226(c) are that we misconstrued Demore and other Supreme Court precedent, that the permanent injunction is inconsistent with the language and purpose of § 1226(c), and that bond hearings following six months of incarceration are not necessary and are an inappropriate “one size fits all” remedy. These arguments are foreclosed by Rodriguez II. The government also argues that any challenges to detention under § 1226(c) must be addressed through individual as-applied claims. This argument is foreclosed by Rodriguez I, which reversed the district court’s denial of class certification.

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seekers “shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.” Id. § 1225(b)(1)(B)(iii)(IV). As to all other applicants for admission, the statute provides that “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained” for removal proceedings. Id. § 1225(b)(2)(A).

Under DHS regulations, non-citizens detained pursuant to § 1225(b) are generally not eligible for release on bond. 8 C.F.R. § 236.1(c)(2). If there are “urgent humanitarian reasons or significant public benefit[s]” at stake,10 however, the Attorney General has discretion to temporarily parole such an individual into the United States, provided that the individual presents neither a danger nor a risk of flight. 8 U.S.C. § 1182(d)(5)(A). Because parole decisions under § 1182 are purely discretionary, they cannot be appealed to IJs or courts. This lack of review has proven especially problematic when immigration officers have denied parole based on blatant errors: In two separate cases identified by the petitioners, for example, officers apparently denied parole because they had confused Ethiopia with Somalia. And in a third case, an officer denied parole because he had mixed up two detainees’ files.

As with § 1226(c), the government often cites § 1225(b)’s mandatory language to justify indefinite civil detention without an individualized determination as to whether the

10 Under this standard, detainees are eligible for parole if they have serious medical conditions, are pregnant, are juveniles who meet certain conditions, or will be witnesses in judicial, administrative, or legislative proceedings. See 8 C.F.R. § 212.5(b).

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detainee would pose a danger or flight risk if released. See, e.g., Nadarajah, 443 F.3d at 1071, 1076 (asylum seeker detained for nearly five years). Section 1225(b) subclass members have been detained for as long as 831 days, and for an average of 346 days each. These individuals apply for and receive relief from removal at very high rates: 94% apply, and of those who apply, 64% are granted relief. In illustrative cases identified by the petitioners, non-citizens fled to the United States after surviving kidnapping, torture, and murder of their family members in their home countries. Upon arrival, these individuals were detained under § 1225(b), and they remained in detention until the government granted their asylum applications hundreds of days later.

In Rodriguez II, we extended Casas and held that to avoid serious constitutional concerns, mandatory detention under § 1225(b), like mandatory detention under § 1226(c), must be construed as implicitly time-limited. Rodriguez II, 715 F.3d at 1144. Accordingly, “the mandatory provisions of § 1225(b) simply expire at six months, at which point the government’s authority to detain the alien shifts to § 1226(a), which is discretionary and which we have already held requires a bond hearing.” Id. (citing Casas, 535 F.3d at 948).

In so holding, we recognized that many members of the § 1225(b) subclass are subject to the “entry fiction” doctrine, under which non-citizens seeking admission to the United States “may physically be allowed within its borders pending a determination of admissibility,” but “are legally considered to be detained at the border and hence as never having effected entry into this country.” Id. at 1140 (quoting Barrera-Echevarria, 44 F.3d at 1450). Such non-citizens therefore “enjoy very limited protections under the United States constitution.” Id. (quoting Barrera-Echevarria, 44

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F.3d at 1450). However, even if the majority of prolonged detentions under § 1225(b) are constitutionally permissible, “the Supreme Court has instructed that, where one possible application of a statute raises constitutional concerns, the statute as a whole should be construed through the prism of constitutional avoidance.” Id. at 1141 (citing Clark, 543 U.S. at 380). Section 1225(b) applies to several categories of lawful permanent residents who are not subject to the entry fiction doctrine but may be treated as seeking admission under 8 U.S.C. § 1101(a)(13)(C). See id. at 1141–42.11

11 Section 1101(a)(13)(C) provides that:
An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien—
(i) has abandoned or relinquished that status,
(ii) has been absent from the United States for a continuous period in excess of 180 days,
(iii) has engaged in illegal activity after having departed the United States,
(iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this chapter and extradition proceedings,
(v) has committed an offense identified in section 1182(a)(2) of this title, unless since such offense the alien has been granted relief under section 1182(h) or 1229b(a) of this title, or
(vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been

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Because those persons are entitled to due process protections under the Fifth Amendment, prolonged detention without bond hearings would raise serious constitutional concerns. See id. at 1142–43; see also Zadvydas, 533 U.S. at 682 (holding that indefinite detention of a once-admitted noncitizen “would raise serious constitutional concerns”). We therefore construed the statutory scheme to require a bond hearing after six months of detention under § 1225(b). Rodriguez II, 715 F.3d at 1144.

The government now argues that “[d]espite years of discovery, petitioners have not identified any member of the Section 1225(b) subclass who is a [lawful permanent resident].” Petitioners represent that they have found lawful permanent residents who have been detained for more than six months under § 1225(b), although their submissions do not identify any specific individuals who fit that description. The question, however, is whether “one possible application of [the] statute raises constitutional concerns.” Rodriguez II, 715 F.3d at 1141. Because the government concedes that detention of lawful permanent residents under § 1225(b) is possible under § 1101(a)(13)(C), “the statute as a whole should be construed through the prism of constitutional avoidance.” Rodriguez II, 715 F.3d at 1141; see also Clark, 543 U.S. at 380 (“It is not at all unusual to give a statute’s ambiguous language a limiting construction called for by one of the statute’s applications, even though other of the statute’s applications, standing alone, would not support the same limitation. The lowest common denominator, as it were, must govern.”).

admitted to the United States after inspection and authorization by an immigration officer.

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The government also argues that lawful permanent residents treated as seeking admission are entitled to lesser due process protections than other lawful permanent residents. But the government has not provided any authority to support that proposition: The cases cited in the government’s brief address statutory and regulatory distinctions between lawful permanent residents treated as applicants for admission and other lawful permanent residents; they do not reflect any constitutional distinction between those groups. See Gonzaga-Ortega v. Holder, 736 F.3d 795, 8014 (9th Cir. 2013) (holding that lawful permanent residents treated as applicants for admission are not entitled to counsel under 8 C.F.R. § 292.5(b)); Toro-Romero v. Ashcroft, 382 F.3d 930, 936 (9th Cir. 2004) (explaining that different statutes govern exclusion of inadmissible non-citizens and removal of deportable noncitizens); Raya-Ledesma v. INS, 55 F.3d 418, 420 (9th Cir. 1994) (holding that “the INS limitation of § 212 relief [from deportation] to legal permanent residents who have held that status for more than seven years” does not violate an ineligible non-citizen’s equal protection rights).

Finally, the government argues that, instead of requiring bond hearings, we could avoid constitutional concerns by interpreting § 1225(b) not to apply to lawful permanent residents. This argument relies on an implausible construction of the statutes at issue. Section 1225(b) applies to “applicants for admission,” and § 1101 defines six categories of lawful permanent residents as “seeking an admission into the United States for purposes of the immigration laws.” 8 U.S.C. § 1101(a)(13)(C); see also Gonzaga-Ortega, 736 F.3d at 801 (“Ordinarily a returning [lawful permanent resident] is not treated as an ‘applicant for

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admission.’ But the statute that so provides includes six exceptions . . . .”).

The Supreme Court’s decision in Kwong Hai Chew v. Colding, 344 U.S. 590 (1953), is not to the contrary. Chew involved a pre-IIRIRA immigration regulation that applied to “excludable” non-citizens. Id. at 591 n.1. Because the regulations were silent as to whether that category included lawful permanent residents returning from voyages abroad, the Court distinguished between the “exclusion” of newly arriving non-citizens and the “expulsion” of lawful permanent residents, thereby holding that the regulation did not authorize the Attorney General to detain arriving lawful permanent residents without hearings. Id. at 598–99. Section 1101(a)(13)(C) forecloses an analogous construction of § 1225(b) because it provides that “applicants for admission” includes several groups of lawful permanent residents. See 8 U.S.C. § 1101(a)(13)(C). In any event, the government’s alternative construction of § 1225(b) was never raised before the district court; the argument is therefore forfeited. See Munns v. Kerry, 782 F.3d 402, 412 (9th Cir. 2015); Saldana v. Occidental Petrol. Corp., 774 F.3d 544, 554 (9th Cir. 2014).

Accordingly, we adhere to Rodriguez II’s holding regarding the § 1225(b) subclass as law of the case and law of the circuit. See Gonzalez, 677 F.3d at 390 n.4. The government’s attempts to re-litigate Rodriguez II are unavailing.12

12 The government argues, among other things, that the permanent injunction entered by the district court is inconsistent with § 1225(b), DHS regulations, the political branches’ plenary control of the borders, the limited constitutional protections afforded to non-citizens seeking

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3. The § 1226(a) Subclass

Section 1226(a) authorizes detention “pending a decision on whether the alien is to be removed from the United States.” 8 U.S.C. § 1226(a). The statute expressly authorizes release on “bond of at least $1,500” or “conditional parole.”13 Id. § 1226(a)(2). Following an initial custody determination by DHS, a non-citizen may apply for a review or redetermination by an IJ, and that decision may be appealed to the BIA. See 8 C.F.R. §§ 236.1, 1003.19. At these hearings, the detainee bears the burden of establishing “that he or she does not present a danger to persons or property, is not a threat to the national security, and does not pose a risk of flight.” Guerra, 24 I. & N. Dec. at 38. “After an initial

admission to the United States, and Supreme Court precedent. The government also argues that bond hearings are unnecessary because noncitizens detained under § 1225(b) can be released on parole. We considered and rejected these arguments in Rodriguez II, and we decline to address them here.
The government also argues that we should reconsider the holding in Rodriguez II in light of new evidence, including as to the rates at which non-citizens abscond or commit crimes after release, and the efficacy of the parole process. Because Rodriguez II involved pure questions of law, this new evidence is not material and does not alter our conclusions.
13 “‘[C]onditional parole’ under §1226(a)(2)(B) is a ‘distinct and different procedure’ from ‘parole’ under § 1182(d)(5)(A)).” Garcia v. Holder, 659 F.3d 1261, 1268 (9th Cir. 2011) (quoting In re Castillo-Padilla, 25 I. & N. Dec. 257, 258 (BIA 2010)). As discussed above, § 1182(d)(5)(A) authorizes the Attorney General to temporarily release non-citizens detained under § 1225(b) “for urgent humanitarian reasons or significant public benefit.” Conditional parole under § 1226(a), by contrast, provides for release from detention if the non-citizen “would not pose a danger to property or persons” and “is likely to appear for any further proceeding.” 8 C.F.R. § 236.1(c)(8).

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bond redetermination,” a request for another review “shall be considered only upon a showing that the alien’s circumstances have changed materially since the prior bond redetermination.” 8 C.F.R. § 1003.19(e). The government has taken the position that additional time spent in detention is not a “changed circumstance” that entitles a detainee to a new bond hearing.

Although § 1226(a) provides for discretionary, rather than mandatory, detention and establishes a mechanism for detainees to seek release on bond, non-citizens often face prolonged detention under that section. See, e.g., Casas, 535 F.3d at 944 (lawful permanent resident detained for seven years); Singh, 638 F.3d at 1203 (lawful permanent resident detained for nearly four years). In an extreme case identified by the petitioners, a non-citizen with no criminal record entered the United States on a tourist visa and affirmatively applied for asylum, withholding of removal, and relief under the Convention Against Torture shortly after that visa expired. ICE detained him throughout the ensuing proceedings before the IJ, the BIA, and the Ninth Circuit. At the time petitioners generated their report, he had been detained for 1,234 days with no definite end in sight.

The district court’s decision regarding the § 1226(a) subclass was squarely controlled by our precedents. In Casas, we held that a non-citizen subjected to prolonged detention under § 1226(a) is entitled to a hearing to establish whether continued detention is necessary because he would pose a danger to the community or a flight risk upon release. 535 F.3d at 949–52. Since deciding Casas, we have repeatedly affirmed its holding. See Cole v. Holder, 659 F.3d 762, 769 n.7 (9th Cir. 2011); Singh, 638 F.3d at 1200; Aguilar-Ramos v. Holder, 594 F.3d 701, 704 n.3 (9th Cir.

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2010); Makaj v. Crowther, 294 F. App’x 328, 329–30 (9th Cir. 2008) (non-precedential memorandum disposition).

The government does not contest that Casas is the binding law of this circuit or that individuals detained under § 1226(a) are entitled to bond hearings. Instead, the government argues that § 1226(a) affords detainees the right to request bond hearings, see 8 C.F.R. § 236.1, so there is no basis for requiring the government to automatically provide bond hearings after six months of detention. This argument is foreclosed by Casas, which held that “§ 1226(c) must be construed as requiring the Attorney General to provide the alien with [a bond] hearing.” 535 F.3d at 951; see also Rodriguez II, 715 F.3d at 1135 (citing Casas for the proposition that under § 1226(a), “a bond hearing is required before the government may detain an alien for a ‘prolonged’ period”). The record evinces the importance of Casas’s holding on this point: Detainees, who typically have no choice but to proceed pro se, have limited access to legal resources, often lack English-language proficiency, and are sometimes illiterate. As a result, many class members are not aware of their right to a bond hearing and are poorly equipped to request one. Accordingly, we conclude that class members are entitled to automatic bond hearings after six months of detention. We address the other procedural requirements for these hearings in Section IV.B, infra.

4. The § 1231(a) Subclass

Section 1231(a) governs detention of non-citizens who have been “ordered removed.” 8 U.S.C. § 1231(a). The statute provides for mandatory detention during a ninety-day removal period. Id. § 1231(a)(2). Under the statute:

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The removal period begins on the latest of the following:

(i) The date the order of removal becomes administratively final.

(ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court’s final order.

(iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement.

Id. § 1231(a)(1)(B). The removal period may be extended beyond ninety days if a detainee “fails or refuses” to cooperate in his removal from the United States. Id. § 1231(a)(1)(C).

“If the alien does not leave or is not removed within the removal period,” he “shall be subject to supervision,” but detention is no longer mandatory. Id. § 1231(a)(3). Rather, the Attorney General has discretion to detain certain classes of non-citizens and to impose conditions of release on others. Id. § 1231(a)(3), (a)(6).14 Before releasing a detainee, the government must conclude that removal is “not practicable or not in the public interest,” that the detainee is “non-violent” and “not likely to pose a threat to the community following

14 To avoid “serious constitutional concerns,” we have previously “construe[d] § 1231(a)(6) as requiring an individualized bond hearing, before an immigration judge, for aliens facing prolonged detention under that provision.” Diouf II, 634 F.3d at 1086 (quoting Casas, 535 F.3d at 950).

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release,” and that the detainee “does not pose a significant flight risk” and is “not likely to violate the conditions of release.” 8 C.F.R. § 241.4(e); see also id. § 241.4(f) (enumerating factors the review panel should “weigh[] in considering whether to recommend further detention or release of a detainee”).

Here, the class is defined, in relevant part, as non-citizens who are detained “pending completion of removal proceedings, including judicial review.” The class therefore by definition excludes any detainee subject to a final order of removal.

Petitioners describe the § 1231(a) subclass as individuals detained under that section who have received a stay of removal from the BIA or a court. However, if a non-citizen has received a stay of removal from the BIA pending further administrative review, then the order of removal is not yet “administratively final.” 8 U.S.C. § 1231(a)(1)(B)(i). The non-citizen has not been “ordered removed,” and the removal period has not begun, so § 1231(a) is inapplicable. See Owino v. Napolitano, 575 F.3d 952, 955 (9th Cir. 2009) (“[W]hile administrative proceedings are pending on remand, Owino will not be subject to a final order of removal, so § 1231 cannot apply.”). Similarly, as long as a non-citizen’s removal order is stayed by a court pending judicial review, that non-citizen is not subject to “the court’s final order.” 8 U.S.C. § 1231(a)(1)(B)(ii). In such circumstances, § 1231(a) is, again, inapplicable. See Prieto-Romero v. Clark, 534 F.3d 1053, 1059 (9th Cir. 2008) (“[Section] 1231(a) does not provide authority to detain an alien . . . whose removal has been stayed by a court of appeals pending its disposition of his petition for review.”); Casas, 535 F.3d at 947 (“If an alien has filed a petition for review with this

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court and received a judicial stay of removal, the ‘removal period’ under § 1231(a) does not begin until this court ‘denies the petition and withdraws the stay of removal.’”) (quoting Prieto-Romero, 534 F.3d at 1060).15

Simply put, the § 1231(a) subclass does not exist. The district court’s grant of summary judgment and permanent injunction are therefore reversed to the extent they pertain to individuals detained under § 1231(a).

C. Procedural Requirements

In addition to challenging the class members’ entitlement to automatic bond hearings after six months of detention, the government objects to the district court’s order regarding the burden and standard of proof at such hearings. The government also appeals the district court’s ruling that IJs must consider alternatives to detention. Petitioners crossappeal the district court’s rulings that IJs are not required to consider the ultimate likelihood of removal, assess the total length of detention, or conduct periodic hearings at six-month intervals. We address each issue in turn.

1. Burden and Standard of Proof

The government argues that the district court erred in requiring the government to justify a non-citizen’s detention

15 “Such aliens may be detained, however, pursuant to § 1226(a), which allows the Attorney General to detain any alien ‘pending a decision on whether the alien is to be removed from the United States.’” PrietoRomero, 534 F.3d at 1059. As noted, non-citizens subjected to prolonged detention under § 1226(a) are entitled to bond hearings. See Casas, 535 F.3d at 944, 949–51.

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by clear and convincing evidence, an intermediate burden of proof that is more than a preponderance of the evidence but less than proof beyond a reasonable doubt. As we noted in Rodriguez II, however, we are bound by our precedent in Singh, which held that “the government must prove by clear and convincing evidence that an alien is a flight risk or a danger to the community to justify denial of bond at a Casas hearing.” Rodriguez II, 715 F.3d at 1135 (quoting Singh, 638 F.3d at 1203).

In Singh, we explained that the “Supreme Court has repeatedly reaffirmed the principle that ‘due process places a heightened burden of proof on the State in civil proceedings in which the individual interests at stake . . . are both particularly important and more substantial than mere loss of money.’” 638 F.3d at 1204 (alteration in original) (quoting Cooper v. Oklahoma, 517 U.S. 348, 363 (1996) (criminal defendant’s competence to stand trial)) (citing Foucha, 504 U.S. at 80 (indefinite confinement of a criminal defendant acquitted by reason of insanity); Woodby v. INS, 385 U.S. 276, 285 (1966) (deportation of a lawful permanent resident); Chaunt v. United States, 364 U.S. 350, 353 (1960) (revocation of naturalized citizenship)). In the civil commitment context, for example, the Supreme Court has recognized “the state’s interest in committing the emotionally disturbed,” but has held that “the individual’s interest in not being involuntarily confined indefinitely . . . is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence.” Addington v. Texas, 441 U.S. 418, 425–27 (1979). Drawing on this jurisprudence, Singh concluded that “a clear and convincing evidence standard of proof provides the appropriate level of procedural protection” in light of “the substantial liberty interest at

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stake.” 638 F.3d at 1203–04 (citing Addington, 441 U.S. at 427).

The government now contends that Singh was wrongly decided. However, it is well established that only a full court, sitting en banc, may overrule a three-judge panel decision. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003). Right or wrong, we are bound to follow Singh unless intervening Supreme Court authority is to the contrary. Id.

2. Restrictions Short of Detention

The government also argues that the district court erred in “determin[ing] that IJs are required to consider the use of alternatives to detention in making bond determinations.” As the district court’s order states, however, IJs “should already be considering restrictions short of incarceration.” Indeed, Rodriguez II affirmed a preliminary injunction that directed IJs to “release each Subclass member on reasonable conditions of supervision, including electronic monitoring if necessary, unless the government” satisfied its burden of justifying continued detention. 715 F.3d at 1131 (emphasis added).

The government’s objections to this requirement are unpersuasive. First, the government relies on Demore for the proposition that the government is not required “to employ the least burdensome means” of securing immigration detainees. Demore, 538 U.S. at 528. But Demore applies only to “brief period[s]” of immigration detention. Id. at 513, 523. “When the period of detention becomes prolonged, ‘the private interest that will be affected by the official action’ is more substantial; greater procedural safeguards are therefore required.” Diouf II, 634 F.3d at 1091 (quoting Mathews, 424

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U.S. at 335). Further, the injunction does not require that IJs apply the least restrictive means of supervision; it merely directs them to “consider” restrictions short of detention. The IJ ultimately must decide whether any restrictions short of detention would further the government’s interest in continued detention.

Second, the government argues that IJs are not empowered to impose conditions of release. However, federal regulations authorize IJs to “detain the alien in custody, release the alien, and determine the amount of bond, if any, under which the respondent may be released” and to “ameliorat[e] the conditions” of release imposed by DHS. 8 C.F.R. § 1236.1(d)(1). Accordingly, if DHS detains a noncitizen, an IJ is already empowered to “ameliorat[e] the conditions” by imposing a less restrictive means of supervision than detention.16

Finally, the government argues that IJs lack the resources to engage in continuous monitoring of released individuals. However, the government fails to cite any law or evidence indicating that IJs, rather than DHS or ICE agents, would be responsible for implementing the conditions of release. Moreover, the record indicates that Congress authorized and funded an ICE alternatives-to-detention program in 2002, and DHS has operated such a program, called the Intensive Supervision and Appearance Program, since 2004. It is

16 The authorities the government cites provide no support for this argument. One discusses DHS officers’ authority to impose conditions of release and allows IJs to “ameliorat[e] those conditions,” see 8 C.F.R. § 236.1; the other provides only that IJs may not grant relief from removal for the purpose of fulfilling the United States’ treaty obligations, see In re G-K-, 26 I. & N. Dec. 88, 93 (BIA 2013).

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abundantly clear that IJs can and do17 consider conditions of release on bond when determining whether the government’s interests can be served by detention only, and we conclude that DHS will administer any such conditions, regardless of whether they are imposed by DHS in the first instance or by an IJ upon later review.

3. Length of Detention and Likelihood of Removal

In their cross-appeal, petitioners argue that the district court erred in failing to require IJs to consider the length of a non-citizen’s past and likely future detention and, relatedly, the likelihood of eventual removal from the United States. In our prior decisions, we have not directly addressed whether due process requires consideration of the length of future detention at bond hearings. We have noted, however, that “the due process analysis changes as ‘the period of . . . confinement grows,’” and that longer detention requires more robust procedural protections. Diouf II, 634 F.3d at 1086 (quoting Zadvydas, 634 F.3d 1081). Accordingly, a noncitizen detained for one or more years is entitled to greater solicitude than a non-citizen detained for six months.

17 On September 10, 2015, the government provided us with the only transcript of a Rodriguez hearing in this record, which took place on April 28, 2015, and concerned a Mr. Kaene Dean. There, the IJ did consider and impose conditions of release in addition to bond, including monthly reporting to DHS and enrollment in a mental health treatment plan. From the transcript, it does not appear that the government presented any evidence that these conditions would be insufficient to prevent the risk of danger to the community, or even any evidence at all. However, the IJ’s decision to release on bond a recidivist sexual offender whom the DOJ had released twice before in proceedings unrelated to this case under § 1226(a) and who had twice before violated the conditions of his release on bond is not before us. See October 2, 2015 Order.

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Moreover, Supreme Court precedent provides that “detention incidental to removal must bear a reasonable relation to its purpose.” Tijani, 430 F.3d at 1249 (Tashima, J., concurring) (citing Demore, 538 U.S. at 527; Zadvydas, 533 U.S. at 690). At some point, the length of detention could “become[] so egregious that it can no longer be said to be ‘reasonably related’ to an alien’s removal.” Id. (citation omitted). An IJ therefore must consider the length of time for which a noncitizen has already been detained.

As to the likely duration of future detention and the likelihood of eventual removal, however, those factors are too speculative and too dependent upon the merits of the detainee’s claims for us to require IJs to consider during a bond hearing. We therefore affirm the district court’s ruling that consideration of those factors “would require legal and political analyses beyond what would otherwise be considered at a bond hearing” and is therefore not appropriate. We note that Zadvydas and its progeny require consideration of the likelihood of removal in particular circumstances,18 but we decline to require such analysis as a threshold inquiry in all bond hearings.

18 Several of our cases have addressed petitions for habeas relief under Zadvydas, which requires a detainee to prove that he “is not significantly likely to be removed.” Owino, 575 F.3d at 955; see also Diouf v. Mukasey (Diouf I), 542 F.3d 1222, 1233 (9th Cir. 2008); Prieto-Romero, 534 F.3d at 1065; Nadarajah, 443 F.3d at 1080. Those decisions instruct IJs to consider the likelihood of removal when, for instance, a detainee is stateless. See Owino, 575 F.3d at 955–56. However, petitioners have not identified, and we have not found, authority that supports requiring this inquiry in all bond hearings.

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4. Periodic Hearings

The record shows that many class members are detained well beyond the six-month mark: Almost half remain in detention at the twelve-month mark, one in five at eighteen months, and one in ten at twenty-four months. Petitioners argue that due process requires additional bond hearings at six-month intervals for class members who are detained for more than six months after their initial bond hearings. We have not had occasion to address this issue in our previous decisions, and it has been a source of some contention in the district courts. See, e.g., Vivorakit v. Holder, No. 14-04515, 2015 WL 4593545, at *4 (N.D. Cal. July 30, 2015); Castaneda v. Aitken, No. 15-01635, 2015 WL 3882755, at *10 (N.D. Cal. June 23, 2015).

The district court here did not address this proposed requirement. For the same reasons the IJ must consider the length of past detention, we hold that the government must provide periodic bond hearings every six months so that noncitizens may challenge their continued detention as “the period of . . . confinement grows.” Diouf II, 634 F.3d at 1091 (quoting Zadvydas, 533 U.S. at 701).

V. Conclusion

This decision flows from the Supreme Court’s and our own precedent bearing on the constitutional implications of our government’s prolonged civil detention of individuals, many of whom have the legal right to live and work in our country. By upholding the district court’s order that Immigration Judges must hold bond hearings for certain detained individuals, we are not ordering Immigration Judges to release any single individual; rather we are affirming a

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minimal procedural safeguard—a hearing at which the government bears only an intermediate burden of proof in demonstrating danger to the community or risk of flight—to ensure that after a lengthy period of detention, the government continues to have a legitimate interest in the further deprivation of an individual’s liberty. Immigration Judges, a specialized and experienced group within the Department of Justice, are already entrusted to make these determinations, and need not release any individual they find presents a danger to the community or a flight risk after hearing and weighing the evidence. Accordingly, we affirm all aspects of the district court’s permanent injunction, with three exceptions: We reverse as to the § 1231(a) subclass, and we hold that IJs must consider the length of detention and provide bond hearings every six months. We hereby remand to the district court to enter a revised injunction consistent with our instructions.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

 
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Supreme Court of the United States Office of the Clerk
Washington, DC 20543-0001

February 27, 2018

Scott S. Harris Clerk of the Court (202) 479-3011

Clerk United States Court of Appeals for the Ninth Circuit 95 Seventh Street San Francisco, CA 94103-1526

Re: David Jennings, et al. v. Alejandro Rodriguez, et al., Individually and on Behalf of All Others Similarly Situated No. 15-1204 (Your No. 13-56706, 13-56755)

Dear Clerk:
The opinion of this Court was announced today in the above stated case. A copy of the opinion is available on the Court’s website at www.supremecourt.gov.
The judgment or mandate of this Court will not issue for at least twenty-five days pursuant to Rule 45. Should a petition for rehearing be filed timely, the judgment or mandate will be further stayed pending this Court's action on the petition for rehearing.

Sincerely,
Scott S. Harris, Clerk by Cynthia Rapp Deputy Clerk (202) 479-3031

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(Slip Opinion)

OCTOBER TERM, 2017

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Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
JENNINGS ET AL. v. RODRIGUEZ ET AL., INDIVIDUALLY
AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 15–1204. Argued November 30, 2016—Reargued October 3, 2017—Decided February 27, 2018
Immigration officials are authorized to detain certain aliens in the course of immigration proceedings while they determine whether those aliens may be lawfully present in the country. For example, §1225(b) of Title 8 of the U. S. Code authorizes the detention of certain aliens seeking to enter the country. Section 1225(b)(1) applies to aliens initially determined to be inadmissible due to fraud, misrepresentation, or lack of valid documentation, and to certain other aliens designated by the Attorney General in his discretion. Section 1225(b)(2) is a catchall provision that applies to most other applicants for admission not covered by §1225(b)(1). Under §1225(b)(1), aliens are normally ordered removed “without further hearing or review,” §1225(b)(1)(A)(i), but an alien indicating either an intention to apply for asylum or a credible fear of persecution, §1225(b)(1)(A)(ii), “shall be detained” while that alien’s asylum application is pending, §1225(b)(1)(B)(ii). Aliens covered by §1225(b)(2) in turn “shall be detained for a [removal] proceeding” if an immigration officer “determines that [they are] not clearly and beyond a doubt entitled” to admission. §1225(b)(2)(A). The Government is also authorized to detain certain aliens already in the country. Section 1226(a)’s default rule permits the Attorney General to issue warrants for the arrest and detention of these aliens pending the outcome of their removal proceedings. The Attorney General “may release” these aliens on bond, “[e]xcept as provided in subsection (c) of this section.” Section 1226(c) in turn states that the Attorney General “shall take into custody any alien” who falls into one of the enumerated categories involving criminal offenses and ter-

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rorist activities, §1226(c)(1), and specifies that the Attorney General “may release” one of those aliens “only if the Attorney General decides” both that doing so is necessary for witness-protection purposes and that the alien will not pose a danger or flight risk, §1226(c)(2).
After a 2004 conviction, respondent Alejandro Rodriguez, a Mexican citizen and a lawful permanent resident of the United States, was detained pursuant to §1226 while the Government sought to remove him. In May 2007, while still litigating his removal, Rodriguez filed a habeas petition, claiming that he was entitled to a bond hearing to determine whether his continued detention was justified. As relevant here, he and the class of aliens he represents allege that §§1225(b), 1226(a), and 1226(c) do not authorize “prolonged” detention in the absence of an individualized bond hearing at which the Government proves by clear and convincing evidence that detention remains justified. The District Court entered a permanent injunction, and the Ninth Circuit affirmed. Relying on the canon of constitutional avoidance, the Ninth Circuit construed §§1225(b) and 1226(c) as imposing an implicit 6-month time limit on an alien’s detention under those sections. After that point, the court held, the Government may continue to detain the alien only under the authority of §1226(a). The court then construed §1226(a) to mean that an alien must be given a bond hearing every six months and that detention beyond the initial 6-month period is permitted only if the Government proves by clear and convincing evidence that further detention is justified.
Held: The judgment is reversed, and the case is remanded.
804 F. 3d 1060, reversed and remanded. JUSTICE ALITO delivered the opinion of the Court, except as to Part
II, concluding that §§1225(b), 1226(a), and 1226(c) do not give detained aliens the right to periodic bond hearings during the course of their detention. The Ninth Circuit misapplied the canon of constitutional avoidance in holding otherwise. Pp. 12–31.
(a) The canon of constitutional avoidance “comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one [plausible] construction.” Clark v. Martinez, 543 U. S. 371, 385. The Ninth Circuit’s interpretations of the provisions at issue, however, are implausible. Pp. 12– 13.
(b) Read most naturally, §§1225(b)(1) and (b)(2) mandate detention of applicants for admission until certain proceedings have concluded. Until that point, nothing in the statutory text imposes a limit on the length of detention, and neither provision says anything about bond hearings. Pp. 13–19.
(1) Nothing in the text of §1225(b)(1) or §1225(b)(2) hints that

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those provisions have an implicit 6-month time limit on the length of detention. Respondents must show that this is a plausible reading in order to prevail under the canon of constitutional avoidance, but they simply invoke the canon without making any attempt to defend their reading.
The Ninth Circuit also all but ignored the statutory text, relying instead on Zadvydas v. Davis, 533 U. S. 678, as authority for grafting a time limit onto §1225(b)’s text. There, this Court invoked the constitutional-avoidance canon, construing §1231(a)(6)—which provides than an alien subject to a removal order “may be detained” beyond the section’s 90-day removal period—to mean that the alien may not be detained beyond “a period reasonably necessary to secure removal,” id., at 699, presumptively six months, id., at 701. The Court detected ambiguity in the statutory phrase “may be detained” and noted the absence of any explicit statutory limit on the length of permissible detention following the entry of an order of removal.
Several material differences distinguish the provisions at issue in this case from Zadvydas’s interpretation of §1231(a)(6). To start, the provisions here, unlike §1231(a)(6), mandate detention for a specified period of time: until immigration officers have finished “consider[ing]” the asylum application, §1225(b)(1)(B)(ii), or until removal proceedings have concluded, §1225(b)(2)(A). Section 1231(a)(6) also uses the ambiguous “may,” while §§1225(b)(1) and (b)(2) use the unequivocal mandate “shall be detained.” There is also a specific provision authorizing temporary parole from §1225(b) detention “for urgent humanitarian reasons or significant public benefit,” §1182(d)(5)(A), but no similar release provision applies to §1231(a)(6). That express exception implies that there are no other circumstances under which aliens detained under §1225(b) may be released. Pp. 14–17.
(2) Respondents also claim that the term “for” in §§1225(b)(1) and (b)(2) mandates detention only until the start of applicable proceedings. That is inconsistent with the meanings of “for”—“[d]uring [or] throughout,” 6 Oxford English Dictionary 26, and “with the object or purpose of,” id., at 23—that make sense in the context of the statutory scheme as a whole. Nor does respondents’ reading align with the historical use of “for” in §1225. Pp. 17–19.
(c) Section 1226(c)’s language is even clearer. By allowing aliens to be released “only if ” the Attorney General decides that certain conditions are met, that provision reinforces the conclusion that aliens detained under its authority are not entitled to be released under any circumstances other than those expressly recognized by the statute. Together with §1226(a), §1226(c) makes clear that detention of aliens within its scope must continue “pending a decision” on removal. Sec-

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Syllabus
tion 1226(c) is thus not silent as to the length of detention. See Demore v. Kim, 538 U. S. 510, 529. The provision, by expressly stating that covered aliens may be released “only if ” certain conditions are met, also unequivocally imposes an affirmative prohibition on releasing them under any other conditions. Finally, because §1226(c) and the PATRIOT Act apply to different categories of aliens in different ways, adopting §1226(c)’s plain meaning will not make any part of the PATRIOT Act, see §1226a(a)(3), superfluous. Pp. 19–22.
(d) Nothing in §1226(a), which authorizes the Attorney General to arrest and detain an alien “pending a decision” on removal and which permits the Attorney General to release the alien on bond, supports the imposition of periodic bond hearings every six months in which the Attorney General must prove by clear and convincing evidence that continued detention is necessary. Nor does it hint that the length of detention prior to the bond hearing must be considered in determining whether an alien should be released. Pp. 22–23.
(e) The Ninth Circuit should consider the merits of respondents’ constitutional arguments in the first instance. But before doing so, it should also reexamine whether respondents can continue litigating their claims as a class. Pp. 29–31.
ALITO, J., delivered the opinion of the Court, except as to Part II. ROBERTS, C. J., and KENNEDY, J., joined that opinion in full; THOMAS and GORSUCH, JJ., joined as to all but Part II; and SOTOMAYOR, J., joined as to Part III–C. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which GORSUCH, J., joined except for footnote 6. BREYER, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., joined. KAGAN, J., took no part in the decision of the case.

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NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–1204
_________________
DAVID JENNINGS, ET AL., PETITIONERS v. ALEJANDRO RODRIGUEZ, ET AL., INDIVID-
UALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[February 27, 2018]
JUSTICE ALITO delivered the opinion of the Court, except as to Part II.*
Every day, immigration officials must determine whether to admit or remove the many aliens who have arrived at an official “port of entry” (e.g., an international airport or border crossing) or who have been apprehended trying to enter the country at an unauthorized location. Immigration officials must also determine on a daily basis whether there are grounds for removing any of the aliens who are already present inside the country. The vast majority of these determinations are quickly made, but in some cases deciding whether an alien should be admitted or removed is not as easy. As a result, Congress has authorized immigration officials to detain some classes of aliens during the course of certain immigration proceedings. Detention during those proceedings gives immigration officials time to determine an alien’s status without running the risk of the alien’s either absconding or engaging in criminal
—————— * JUSTICE SOTOMAYOR joins only Part III–C of this opinion.

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Opinion of the Court
activity before a final decision can be made. In this case we are asked to interpret three provisions of
U. S. immigration law that authorize the Government to detain aliens in the course of immigration proceedings. All parties appear to agree that the text of these provisions, when read most naturally, does not give detained aliens the right to periodic bond hearings during the course of their detention. But by relying on the constitutionalavoidance canon of statutory interpretation, the Court of Appeals for the Ninth Circuit held that detained aliens have a statutory right to periodic bond hearings under the provisions at issue.
Under the constitutional-avoidance canon, when statutory language is susceptible of multiple interpretations, a court may shun an interpretation that raises serious constitutional doubts and instead may adopt an alternative that avoids those problems. But a court relying on that canon still must interpret the statute, not rewrite it. Because the Court of Appeals in this case adopted implausible constructions of the three immigration provisions at issue, we reverse its judgment and remand for further proceedings.
I A
To implement its immigration policy, the Government must be able to decide (1) who may enter the country and (2) who may stay here after entering.
1
That process of decision generally begins at the Nation’s borders and ports of entry, where the Government must determine whether an alien seeking to enter the country is admissible. Under 122 Stat. 867, 8 U. S. C. §1225, an alien who “arrives in the United States,” or “is present” in this country but “has not been admitted,” is treated as “an

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Opinion of the Court
applicant for admission.” §1225(a)(1). Applicants for admission must “be inspected by immigration officers” to ensure that they may be admitted into the country consistent with U. S. immigration law. §1225(a)(3).
As relevant here, applicants for admission fall into one of two categories, those covered by §1225(b)(1) and those covered by §1225(b)(2). Section 1225(b)(1) applies to aliens initially determined to be inadmissible due to fraud, misrepresentation, or lack of valid documentation. See §1225(b)(1)(A)(i) (citing §§1182(a)(6)(C), (a)(7)). Section 1225(b)(1) also applies to certain other aliens designated by the Attorney General in his discretion. See §1225(b)(1)(A)(iii). Section 1225(b)(2) is broader. It serves as a catchall provision that applies to all applicants for admission not covered by §1225(b)(1) (with specific exceptions not relevant here). See §§1225(b)(2)(A), (B).
Both §1225(b)(1) and §1225(b)(2) authorize the detention of certain aliens. Aliens covered by §1225(b)(1) are normally ordered removed “without further hearing or review” pursuant to an expedited removal process. §1225(b)(1)(A)(i). But if a §1225(b)(1) alien “indicates either an intention to apply for asylum . . . or a fear of persecution,” then that alien is referred for an asylum interview. §1225(b)(1)(A)(ii). If an immigration officer determines after that interview that the alien has a credible fear of persecution, “the alien shall be detained for further consideration of the application for asylum.” §1225(b)(1)(B)(ii). Aliens who are instead covered by §1225(b)(2) are detained pursuant to a different process. Those aliens “shall be detained for a [removal] proceeding” if an immigration officer “determines that [they are] not clearly and beyond a doubt entitled to be admitted” into the country. §1225(b)(2)(A).
Regardless of which of those two sections authorizes their detention, applicants for admission may be temporarily released on parole “for urgent humanitarian reasons

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Opinion of the Court
or significant public benefit.” §1182(d)(5)(A); see also 8 CFR §§212.5(b), 235.3 (2017). Such parole, however, “shall not be regarded as an admission of the alien.” 8 U. S. C. §1182(d)(5)(A). Instead, when the purpose of the parole has been served, “the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.” Ibid.
2
Even once inside the United States, aliens do not have an absolute right to remain here. For example, an alien present in the country may still be removed if he or she falls “within one or more . . . classes of deportable aliens.” §1227(a). That includes aliens who were inadmissible at the time of entry or who have been convicted of certain criminal offenses since admission. See §§1227(a)(1), (2).
Section 1226 generally governs the process of arresting and detaining that group of aliens pending their removal. As relevant here, §1226 distinguishes between two different categories of aliens. Section 1226(a) sets out the default rule: The Attorney General may issue a warrant for the arrest and detention of an alien “pending a decision on whether the alien is to be removed from the United States.” §1226(a). “Except as provided in subsection (c) of this section,” the Attorney General “may release” an alien detained under §1226(a) “on bond . . . or conditional parole.” Ibid.
Section 1226(c), however, carves out a statutory category of aliens who may not be released under §1226(a). Under §1226(c), the “Attorney General shall take into custody any alien” who falls into one of several enumerated categories involving criminal offenses and terrorist activities. §1226(c)(1). The Attorney General may release aliens in those categories “only if the Attorney General decides . . .

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Opinion of the Court
that release of the alien from custody is necessary” for witness-protection purposes and “the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.” §1226(c)(2). Any release under those narrow conditions “shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.” Ibid.1
In sum, U. S. immigration law authorizes the Government to detain certain aliens seeking admission into the country under §§1225(b)(1) and (b)(2). It also authorizes the Government to detain certain aliens already in the country pending the outcome of removal proceedings under §§1226(a) and (c). The primary issue is the proper interpretation of §§1225(b), 1226(a), and 1226(c).
B
Respondent Alejandro Rodriguez is a Mexican citizen. Since 1987, he has also been a lawful permanent resident of the United States. In April 2004, after Rodriguez was convicted of a drug offense and theft of a vehicle, the Government detained him under §1226 and sought to remove him from the country. At his removal hearing, Rodriguez argued both that he was not removable and, in the alternative, that he was eligible for relief from removal. In July 2004, an Immigration Judge ordered Rodriguez deported to Mexico. Rodriguez chose to appeal that decision to the Board of Immigration Appeals, but five months
——————
1 Anyone who believes that he is not covered by §1226(c) may also ask for what is known as a “Joseph hearing.” See Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999). At a Joseph hearing, that person “may avoid mandatory detention by demonstrating that he is not an alien, was not convicted of the predicate crime, or that the [Government] is otherwise substantially unlikely to establish that he is in fact subject to mandatory detention.” Demore v. Kim, 538 U. S. 510, 514, n. 3 (2003). Whether respondents are entitled to Joseph hearings is not before this Court.

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later the Board agreed that Rodriguez was subject to mandatory removal. Once again, Rodriguez chose to seek further review, this time petitioning the Court of Appeals for the Ninth Circuit for review of the Board’s decision.
In May 2007, while Rodriguez was still litigating his removal in the Court of Appeals, he filed a habeas petition in the District Court for the Central District of California, alleging that he was entitled to a bond hearing to determine whether his continued detention was justified. Rodriguez’s case was consolidated with another, similar case brought by Alejandro Garcia, and together they moved for class certification. The District Court denied their motion, but the Court of Appeals for the Ninth Circuit reversed. See Rodriguez v. Hayes, 591 F. 3d 1105, 1111 (2010). It concluded that the proposed class met the certification requirements of Rule 23 of the Federal Rules of Civil Procedure, and it remanded the case to the District Court. Id., at 1111, 1126.
On remand, the District Court certified the following class:
“[A]ll non-citizens within the Central District of California who: (1) are or were detained for longer than six months pursuant to one of the general immigration detention statutes pending completion of removal proceedings, including judicial review, (2) are not and have not been detained pursuant to a national security detention statute, and (3) have not been afforded a hearing to determine whether their detention is justified.” Class Certification Order in Rodriguez v. Hayes, CV 07–03239 (CD Cal., Apr. 5, 2010).
The District Court named Rodriguez as class representative of the newly certified class, ibid., and then organized the class into four subclasses based on the four “general immigration detention statutes” under which it understood the class members to be detained: Sections 1225(b),

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1226(a), 1226(c), and 1231(a). See Order Granting Plaintiff ’s Motion for Class Certification in Rodriguez v. Holder, CV 07–03239 (CD Cal., Mar. 8, 2011) (2011 Order); Rodriguez v. Robbins, 715 F. 3d 1127, 1130–1131 (CA9 2013). Each of the four subclasses was certified to pursue declaratory and injunctive relief. 2011 Order. On appeal, the Court of Appeals held that the §1231(a) subclass had been improperly certified, but it affirmed the certification of the other three subclasses. See Rodriguez v. Robbins, 804 F. 3d 1060, 1074, 1085–1086 (CA9 2015).
In their complaint, Rodriguez and the other respondents argued that the relevant statutory provisions—§§1225(b), 1226(a), and 1226(c)—do not authorize “prolonged” detention in the absence of an individualized bond hearing at which the Government proves by clear and convincing evidence that the class member’s detention remains justified. Absent such a bond-hearing requirement, respondents continued, those three provisions would violate the Due Process Clause of the Fifth Amendment. In their prayer for relief, respondents thus asked the District Court to require the Government “to provide, after giving notice, individual hearings before an immigration judge for . . . each member of the class, at which [the Government] will bear the burden to prove by clear and convincing evidence that no reasonable conditions will ensure the detainee’s presence in the event of removal and protect the community from serious danger, despite the prolonged length of detention at issue.” Third Amended Complaint in Rodriguez v. Holder, CV 07–03239, p. 31 (CD Cal., Oct. 20, 2010). Respondents also sought declaratory relief. Ibid.
As relevant here, the District Court entered a permanent injunction in line with the relief sought by respondents, and the Court of Appeals affirmed. See 804 F. 3d, at 1065. Relying heavily on the canon of constitutional avoidance, the Court of Appeals construed §§1225(b) and

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1226(c) as imposing an implicit 6-month time limit on an alien’s detention under these sections. Id., at 1079, 1082. After that point, the Court of Appeals held, the Government may continue to detain the alien only under the authority of §1226(a). Ibid. The Court of Appeals then construed §1226(a) to mean that an alien must be given a bond hearing every six months and that detention beyond the initial 6-month period is permitted only if the Government proves by clear and convincing evidence that further detention is justified. Id., at 1085, 1087.
The Government petitioned this Court for review of that decision, and we granted certiorari. 579 U. S. ___ (2016).
II
Before reaching the merits of the lower court’s interpretation, we briefly address whether we have jurisdiction to entertain respondents’ claims. We discuss two potential obstacles, 8 U. S. C. §§1252(b)(9) and 1226(e).
A
Under §1252(b)(9):
“Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter [including §§1225 and 1226] shall be available only in judicial review of a final order under this section.”
This provision does not deprive us of jurisdiction. We are required in this case to decide “questions of law,” specifically, whether, contrary to the decision of the Court of Appeals, certain statutory provisions require detention without a bond hearing. We assume for the sake of argument that the actions taken with respect to all the aliens in the certified class constitute “action[s] taken . . . to

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remove [them] from the United States.”2 On that assumption, the applicability of §1252(b)(9) turns on whether the legal questions that we must decide “aris[e] from” the actions taken to remove these aliens.
It may be argued that this is so in the sense that if those actions had never been taken, the aliens would not be in custody at all. But this expansive interpretation of §1252(b)(9) would lead to staggering results. Suppose, for example, that a detained alien wishes to assert a claim under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), based on allegedly inhumane conditions of confinement. See, e.g., Ziglar v. Abbasi, 582 U. S. ___, ___–___ (2017) (slip op., at 23–29). Or suppose that a detained alien brings a state-law claim for assault against a guard or fellow detainee. Or suppose that an alien is injured when a truck hits the bus transporting aliens to a detention facility, and the alien sues the driver or owner of the truck. The “questions of law and fact” in all those cases could be said to “aris[e] from” actions taken to remove the aliens in the sense that the aliens’ injuries would never have occurred if they had not been placed in detention. But cramming judicial review of those questions into the review of final removal orders would be absurd.
Interpreting “arising from” in this extreme way would also make claims of prolonged detention effectively unreviewable. By the time a final order of removal was eventually entered, the allegedly excessive detention would have already taken place. And of course, it is possible that no such order would ever be entered in a particular case, depriving that detainee of any meaningful chance for judicial review.
In past cases, when confronted with capacious phrases
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2 It is questionable whether this is true for aliens who are detained under 8 U. S. C. §1225(b)(1)(B)(ii) for consideration of their asylum applications.

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like “ ‘arising from,’ ” we have eschewed “ ‘uncritical literalism’ ” leading to results that “ ‘no sensible person could have intended.’ ” Gobeille v. Liberty Mut. Ins. Co., 577 U. S. ___, ___ (2016) (slip op., at 6) (interpreting phrase “relate to” in the Employee Retirement Income Security Act of 1974’s pre-emption provision). See also, e.g., FERC v. Electric Power Supply Assn., 577 U. S. ___, ___–___ (2016) (slip op., at 15–16) (interpreting term “affecting” in Federal Power Act); Maracich v. Spears, 570 U. S. 48, 59– 61 (2013) (interpreting phrase “in connection with” in Driver’s Privacy Protection Act); Dan’s City Used Cars, Inc. v. Pelkey, 569 U. S. 251, 260–261 (2013) (interpreting phrase “related to” in Federal Aviation Administration Authorization Act); Celotex Corp. v. Edwards, 514 U. S. 300, 308 (1995) (interpreting phrase “related to” in Bankruptcy Act). In Reno v. American-Arab AntiDiscrimination Comm., 525 U. S. 471, 482 (1999), we took this approach in construing the very phrase that appears in §1252(b)(9). A neighboring provision of the Immigration and Nationality Act refers to “any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.” 8 U. S. C. §1252(g) (emphasis added). We did not interpret this language to sweep in any claim that can technically be said to “arise from” the three listed actions of the Attorney General. Instead, we read the language to refer to just those three specific actions themselves. American-Arab Anti-Discrimination Comm., supra, at 482–483.
The parties in this case have not addressed the scope of §1252(b)(9), and it is not necessary for us to attempt to provide a comprehensive interpretation. For present purposes, it is enough to note that respondents are not asking for review of an order of removal; they are not challenging the decision to detain them in the first place

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or to seek removal; and they are not even challenging any part of the process by which their removability will be determined. Under these circumstances, §1252(b)(9) does not present a jurisdictional bar.3
B
We likewise hold that §1226(e) does not bar us from considering respondents’ claims.
That provision states:
“The Attorney General’s discretionary judgment regarding the application of [§1226] shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.” §1226(e).
As we have previously explained, §1226(e) precludes an alien from “challeng[ing] a ‘discretionary judgment’ by the Attorney General or a ‘decision’ that the Attorney General has made regarding his detention or release.” Demore v. Kim, 538 U. S. 510, 516 (2003). But §1226(e) does not preclude “challenges [to] the statutory framework that permits [the alien’s] detention without bail.” Id., at 517.
Respondents mount that second type of challenge here.
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3 The concurrence contends that “detention is an ‘action taken . . . to remove’ an alien” and that therefore “even the narrowest reading of ‘arising from’ must cover” the claims raised by respondents. Post, at 6. We do not follow this logic. We will assume for the sake of argument that detention is an action taken “to remove an alien,” i.e., for the purpose of removing an alien, rather than simply an action aimed at ensuring that the alien does not flee or commit a crime while his proceedings are pending. But even if we proceed on the basis of that assumption, we do not see what it proves. The question is not whether detention is an action taken to remove an alien but whether the legal questions in this case arise from such an action. And for the reasons explained above, those legal questions are too remote from the actions taken to fall within the scope of §1252(b)(9).

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First and foremost, they are challenging the extent of the Government’s detention authority under the “statutory framework” as a whole. If that challenge fails, they are then contesting the constitutionality of the entire statutory scheme under the Fifth Amendment. Because the extent of the Government’s detention authority is not a matter of “discretionary judgment,” “action,” or “decision,” respondents’ challenge to “the statutory framework that permits [their] detention without bail,” ibid., falls outside of the scope of §1226(e). We may therefore consider the merits of their claims.
III
When “a serious doubt” is raised about the constitutionality of an act of Congress, “it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson, 285 U. S. 22, 62 (1932). Relying on this canon of constitutional avoidance, the Court of Appeals construed §§1225(b), 1226(a), and 1226(c) to limit the permissible length of an alien’s detention without a bond hearing. Without such a construction, the Court of Appeals believed, the “ ‘prolonged detention without adequate procedural protections’ ” authorized by the provisions “ ‘would raise serious constitutional concerns.’ ” 804 F. 3d, at 1077 (quoting Casas-Castrillon v. DHS, 535 F. 3d 942, 950 (CA9 2008)).
The canon of constitutional avoidance “comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.” Clark v. Martinez, 543 U. S. 371, 385 (2005). In the absence of more than one plausible construction, the canon simply “ ‘has no application.’ ” Warger v. Shauers, 574 U. S. ___, ___ (2014) (slip op., at 10) (quoting United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 494 (2001)).

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The Court of Appeals misapplied the canon in this case because its interpretations of the three provisions at issue here are implausible. In Parts III–A and III–B, we hold that, subject only to express exceptions, §§1225(b) and 1226(c) authorize detention until the end of applicable proceedings. And in Part III–C, we hold that there is no justification for any of the procedural requirements that the Court of Appeals layered onto §1226(a) without any arguable statutory foundation.
A
As noted, §1225(b) applies primarily to aliens seeking entry into the United States (“applicants for admission” in the language of the statute). Section 1225(b) divides these applicants into two categories. First, certain aliens claiming a credible fear of persecution under §1225(b)(1) “shall be detained for further consideration of the application for asylum.” §1225(b)(1)(B)(ii). Second, aliens falling within the scope of §1225(b)(2) “shall be detained for a [removal] proceeding.” §1225(b)(2)(A).
Read most naturally, §§1225(b)(1) and (b)(2) thus mandate detention of applicants for admission until certain proceedings have concluded. Section 1225(b)(1) aliens are detained for “further consideration of the application for asylum,” and §1225(b)(2) aliens are in turn detained for “[removal] proceeding[s].” Once those proceedings end, detention under §1225(b) must end as well. Until that point, however, nothing in the statutory text imposes any limit on the length of detention. And neither §1225(b)(1) nor §1225(b)(2) says anything whatsoever about bond hearings.
Despite the clear language of §§1225(b)(1) and (b)(2), respondents argue—and the Court of Appeals held—that those provisions nevertheless can be construed to contain implicit limitations on the length of detention. But neither of the two limiting interpretations offered by re-

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spondents is plausible.
1
First, respondents argue that §§1225(b)(1) and (b)(2) contain an implicit 6-month limit on the length of detention. Once that 6-month period elapses, respondents contend, aliens previously detained under those provisions must instead be detained under the authority of §1226(a), which allows for bond hearings in certain circumstances.
There are many problems with this interpretation. Nothing in the text of §1225(b)(1) or §1225(b)(2) even hints that those provisions restrict detention after six months, but respondents do not engage in any analysis of the text. Instead, they simply cite the canon of constitutional avoidance and urge this Court to use that canon to read a “six-month reasonableness limitation” into §1225(b). Brief for Respondents 48.
That is not how the canon of constitutional avoidance works. Spotting a constitutional issue does not give a court the authority to rewrite a statute as it pleases. Instead, the canon permits a court to “choos[e] between competing plausible interpretations of a statutory text.” Clark, supra, at 381 (emphasis added). To prevail, respondents must thus show that §1225(b)’s detention provisions may plausibly be read to contain an implicit 6-month limit. And they do not even attempt to defend that reading of the text.
In much the same manner, the Court of Appeals all but ignored the statutory text. Instead, it read Zadvydas v. Davis, 533 U. S. 678 (2001), as essentially granting a license to graft a time limit onto the text of §1225(b). Zadvydas, however, provides no such authority.
Zadvydas concerned §1231(a)(6), which authorizes the detention of aliens who have already been ordered removed from the country. Under this section, when an alien is ordered removed, the Attorney General is directed

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to complete removal within a period of 90 days, 8 U. S. C. §1231(a)(1)(A), and the alien must be detained during that period, §1231(a)(2). After that time elapses, however, §1231(a)(6) provides only that certain aliens “may be detained” while efforts to complete removal continue. (Emphasis added.)
In Zadvydas, the Court construed §1231(a)(6) to mean that an alien who has been ordered removed may not be detained beyond “a period reasonably necessary to secure removal,” 533 U. S., at 699, and it further held that six months is a presumptively reasonable period, id., at 701. After that, the Court concluded, if the alien “provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future,” the Government must either rebut that showing or release the alien. Ibid.
The Zadvydas Court justified this interpretation by invoking the constitutional-avoidance canon, and the Court defended its resort to that canon on the ground that §1231(a)(6) is ambiguous. Specifically, the Court detected ambiguity in the statutory phrase “may be detained.” “ ‘[M]ay,’ ” the Court said, “suggests discretion” but not necessarily “unlimited discretion. In that respect the word ‘may’ is ambiguous.” Id., at 697. The Court also pointed to the absence of any explicit statutory limit on the length of permissible detention following the entry of an order of removal. Ibid.
Zadvydas represents a notably generous application of the constitutional-avoidance canon, but the Court of Appeals in this case went much further. It failed to address whether Zadvydas’s reasoning may fairly be applied in this case despite the many ways in which the provision in question in Zadvydas, §1231(a)(6), differs materially from those at issue here, §§1225(b)(1) and (b)(2). Those differences preclude the reading adopted by the Court of Appeals.

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To start, §§1225(b)(1) and (b)(2), unlike §1231(a)(6), provide for detention for a specified period of time. Section 1225(b)(1) mandates detention “for further consideration of the application for asylum,” §1225(b)(1)(B)(ii), and §1225(b)(2) requires detention “for a [removal] proceeding,” §1225(b)(2)(A). The plain meaning of those phrases is that detention must continue until immigration officers have finished “consider[ing]” the application for asylum, §1225(b)(1)(B)(ii), or until removal proceedings have concluded, §1225(b)(2)(A). By contrast, Congress left the permissible length of detention under §1231(a)(6) unclear.
Moreover, in Zadvydas, the Court saw ambiguity in §1231(a)(6)’s use of the word “may.” Here, by contrast, §§1225(b)(1) and (b)(2) do not use the word “may.” Instead, they unequivocally mandate that aliens falling within their scope “shall” be detained. “Unlike the word ‘may,’ which implies discretion, the word ‘shall’ usually connotes a requirement.” Kingdomware Technologies, Inc. v. United States, 579 U. S. ___, ___ (2016) (slip op., at 9). That requirement of detention precludes a court from finding ambiguity here in the way that Zadvydas found ambiguity in §1231(a)(6).
Zadvydas’s reasoning is particularly inapt here because there is a specific provision authorizing release from §1225(b) detention whereas no similar release provision applies to §1231(a)(6). With a few exceptions not relevant here, the Attorney General may “for urgent humanitarian reasons or significant public benefit” temporarily parole aliens detained under §§1225(b)(1) and (b)(2). 8 U. S. C. §1182(d)(5)(A). That express exception to detention implies that there are no other circumstances under which aliens detained under §1225(b) may be released. See A. Scalia & B. Garner, Reading Law 107 (2012) (“NegativeImplication Canon[:] The expression of one thing implies the exclusion of others (expressio unius est exclusio alterius)”). That negative implication precludes the sort of

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implicit time limit on detention that we found in Zadvydas.4
In short, a series of textual signals distinguishes the provisions at issue in this case from Zadvydas’s interpretation of §1231(a)(6). While Zadvydas found §1231(a)(6) to be ambiguous, the same cannot be said of §§1225(b)(1) and (b)(2): Both provisions mandate detention until a certain point and authorize release prior to that point only under limited circumstances. As a result, neither provision can reasonably be read to limit detention to six months.
2
In this Court, respondents advance an interpretation of the language of §§1225(b)(1) and (b)(2) that was never made below, namely, that the term “for,” which appears in both provisions, mandates detention only until the start of applicable proceedings rather than all the way through to their conclusion. Respondents contrast the language of §§1225(b)(1) and (b)(2) authorizing detention “for” further proceedings with another provision’s authorization of detention “pending” further proceedings. See 8 U. S. C. §1225(b)(1)(B)(iii)(IV) (“Any alien . . . shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed”). According to respondents, that distinction between “for” and “pending” makes an enormous difference. As they see things, the word “pending” authorizes detention throughout subsequent proceedings, but the term “for” means that detention authority ends once subsequent proceedings

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4 According to the dissent, we could have applied the expressio unius canon in Zadvydas as well because there was also an “alternative avenue for relief, namely, bail,” available for aliens detained under §1231(a)(6). Post, at 25 (opinion of BREYER, J.). But the dissent overlooks the fact that the provision granting bail was precisely the same provision that the Court purported to be interpreting, so the canon was not applicable. See 533 U. S., at 683.

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begin. As a result, respondents argue, once the applicable proceedings commence, §§1225(b)(1) and (b)(2) no longer authorize detention, and the Government must instead look to §1226(a) for continued detention authority.
That interpretation is inconsistent with ordinary English usage and is incompatible with the rest of the statute. To be sure, “for” can sometimes mean “in preparation for or anticipation of.” 6 Oxford English Dictionary 24 (2d ed. 1989). But “for” can also mean “[d]uring [or] throughout,” id., at 26, as well as “with the object or purpose of,” id., at 23; see also American Heritage Dictionary 709 (3d ed. 1992) (“Used to indicate the object, aim, or purpose of an action or activity”; “Used to indicate amount, extent, or duration”); Random House Dictionary of the English Language 747 (2d ed. 1987) (“with the object or purpose of ”; “during the continuance of ”); Webster’s Third New International Dictionary 886 (1993) (“with the purpose or object of ”; “to the . . . duration of ”). And here, only that second set of definitions makes sense in the context of the statutory scheme as a whole.
For example, respondents argue that, once detention authority ends under §§1225(b)(1) and (b)(2), aliens can be detained only under §1226(a). But that section authorizes detention only “[o]n a warrant issued” by the Attorney General leading to the alien’s arrest. §1226(a). If respondents’ interpretation of §1225(b) were correct, then the Government could detain an alien without a warrant at the border, but once removal proceedings began, the Attorney General would have to issue an arrest warrant in order to continue detaining the alien. To put it lightly, that makes little sense.
Nor does respondents’ interpretation of the word “for” align with the way Congress has historically used that word in §1225. Consider that section’s text prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110 Stat. 3009–546.

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Under the older version of §1225(b), “[e]very alien” within its scope “who may not appear . . . to be clearly and beyond a doubt entitled to [entry] shall be detained for further inquiry to be conducted by a special inquiry officer.” 8 U. S. C. §1225(b) (1994 ed.). It would make no sense to read “for further inquiry” as authorizing detention of the alien only until the start of the inquiry; Congress obviously did not mean to allow aliens to feel free to leave once immigration officers asked their first question.
In sum, §§1225(b)(1) and (b)(2) mandate detention of aliens throughout the completion of applicable proceedings and not just until the moment those proceedings begin. Of course, other provisions of the immigration statutes do authorize detention “pending” other proceedings or “until” a certain point. See post, at 22–23 (BREYER, J., dissenting) (quoting §1225(b)(1)(B)(iii)(IV)). But there is no “canon of interpretation that forbids interpreting different words used in different parts of the same statute to mean roughly the same thing.” Kirtsaeng v. John Wiley & Sons, Inc., 568 U. S. 519, 540 (2013). We decline to invent and apply such a canon here.
B
While the language of §§1225(b)(1) and (b)(2) is quite clear, §1226(c) is even clearer. As noted, §1226 applies to aliens already present in the United States. Section 1226(a) creates a default rule for those aliens by permitting—but not requiring—the Attorney General to issue warrants for their arrest and detention pending removal proceedings. Section 1226(a) also permits the Attorney General to release those aliens on bond, “[e]xcept as provided in subsection (c) of this section.” Section 1226(c) in turn states that the Attorney General “shall take into custody any alien” who falls into one of the enumerated categories involving criminal offenses and terrorist activities. 8 U. S. C. §1226(c)(1). Section 1226(c) then goes on

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to specify that the Attorney General “may release” one of those aliens “only if the Attorney General decides” both that doing so is necessary for witness-protection purposes and that the alien will not pose a danger or flight risk. §1226(c)(2) (emphasis added).
Like §1225(b), §1226(c) does not on its face limit the length of the detention it authorizes. In fact, by allowing aliens to be released “only if ” the Attorney General decides that certain conditions are met, §1226(c) reinforces the conclusion that aliens detained under its authority are not entitled to be released under any circumstances other than those expressly recognized by the statute. And together with §1226(a), §1226(c) makes clear that detention of aliens within its scope must continue “pending a decision on whether the alien is to be removed from the United States.” §1226(a).
In a reprise of their interpretation of §1225(b), respondents argue, and the Court of Appeals held, that §1226(c) should be interpreted to include an implicit 6-month time limit on the length of mandatory detention. Once again, that interpretation falls far short of a “plausible statutory construction.”
In defense of their statutory reading, respondents first argue that §1226(c)’s “silence” as to the length of detention “cannot be construed to authorize prolonged mandatory detention, because Congress must use ‘clearer terms’ to authorize ‘long-term detention.’ ” Brief for Respondents 34 (quoting Zadvydas, 533 U. S., at 697). But §1226(c) is not “silent” as to the length of detention. It mandates detention “pending a decision on whether the alien is to be removed from the United States,” §1226(a), and it expressly prohibits release from that detention except for narrow, witness-protection purposes. Even if courts were permitted to fashion 6-month time limits out of statutory silence, they certainly may not transmute existing statutory language into its polar opposite. The constitutional-

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avoidance canon does not countenance such textual alchemy.
Indeed, we have held as much in connection with §1226(c) itself. In Demore v. Kim, 538 U. S., at 529, we distinguished §1226(c) from the statutory provision in Zadvydas by pointing out that detention under §1226(c) has “a definite termination point”: the conclusion of removal proceedings. As we made clear there, that “definite termination point”—and not some arbitrary time limit devised by courts—marks the end of the Government’s detention authority under §1226(c).
Respondents next contend that §1226(c)’s limited authorization for release for witness-protection purposes does not imply that other forms of release are forbidden, but this argument defies the statutory text. By expressly stating that the covered aliens may be released “only if ” certain conditions are met, 8 U. S. C. §1226(c)(2), the statute expressly and unequivocally imposes an affirmative prohibition on releasing detained aliens under any other conditions.
Finally, respondents point to a provision enacted as part of the PATRIOT Act5 and contend that their reading of §1226(c) is needed to prevent that provision from being superfluous. That argument, however, misreads both statutory provisions. Although the two provisions overlap in part, they are by no means congruent.
Two differences stand out. First, §1226(c) and the PATRIOT Act cover different categories of aliens. Both apply to certain terrorist suspects, but only §1226(c) reaches aliens convicted of other more common criminal offenses. See §§1226(c)(1)(A)–(C) (aliens inadmissible or deportable under §1182(a)(2); §§1227(a)(2)(A)(ii), (A)(iii),

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5 See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (PATRIOT Act), 115 Stat. 272.

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(B), (C), and (D); and §1227(a)(2)(A)(i) under certain conditions). For its part, the PATRIOT Act casts a wider net than §1226(c) insofar as it encompasses certain threats to national security not covered by §1226(c). See §1226a(a)(3) (aliens described in §§1182(a)(3)(A)(i), (iii), and 1227(a)(4)(A)(i), (iii), as well as aliens “engaged in any other activity that endangers the national security of the United States”). In addition, the Government’s detention authority under §1226(c) and the PATRIOT Act is not the same. Under §1226(c), the Government must detain an alien until “a decision on whether the alien is to be removed” is made. §1226(a) (emphasis added). But, subject to exceptions not relevant here, the PATRIOT Act authorizes the Government to detain an alien “until the alien is removed.” §1226a(a)(2) (emphasis added).
Far from being redundant, then, §1226(c) and the PATRIOT Act apply to different categories of aliens in different ways. There is thus no reason to depart from the plain meaning of §1226(c) in order to avoid making the provision superfluous.
We hold that §1226(c) mandates detention of any alien falling within its scope and that detention may end prior to the conclusion of removal proceedings “only if ” the alien is released for witness-protection purposes.
C
Finally, as noted, §1226(a) authorizes the Attorney General to arrest and detain an alien “pending a decision on whether the alien is to be removed from the United States.” §1226(a). As long as the detained alien is not covered by §1226(c), the Attorney General “may release” the alien on “bond . . . or conditional parole.” §1226(a). Federal regulations provide that aliens detained under §1226(a) receive bond hearings at the outset of detention. See 8 CFR §§236.1(d)(1), 1236.1(d)(1).
The Court of Appeals ordered the Government to pro-

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vide procedural protections that go well beyond the initial bond hearing established by existing regulations—namely, periodic bond hearings every six months in which the Attorney General must prove by clear and convincing evidence that the alien’s continued detention is necessary. Nothing in §1226(a)’s text—which says only that the Attorney General “may release” the alien “on . . . bond”— even remotely supports the imposition of either of those requirements. Nor does §1226(a)’s text even hint that the length of detention prior to a bond hearing must specifically be considered in determining whether the alien should be released.
IV
For these reasons, the meaning of the relevant statutory provisions is clear—and clearly contrary to the decision of the Court of Appeals. But the dissent is undeterred. It begins by ignoring the statutory language for as long as possible, devoting the first two-thirds of its opinion to a disquisition on the Constitution. Only after a 19-page prologue does the dissent acknowledge the relevant statutory provisions.
The dissent frames the question of interpretation as follows: Can §§1225(b), 1226(c), and 1226(a) be read to require bond hearings every six months “without doing violence to the statutory language,” post, at 20 (opinion of BREYER, J.)? According to the dissent, the answer is “yes,” but the dissent evidently has a strong stomach when it comes to inflicting linguistic trauma. Thus, when Congress mandated that an “alien shall be detained,” §1225(b)(1)(B)(ii), what Congress really meant, the dissent insists, is that the alien may be released from custody provided only that his freedom of movement is restricted in some way, such as by “the imposition of a curfew,” post, at 21. And when Congress stressed that “[t]he Attorney General may release an alien . . . only if . . . release . . .

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from custody is necessary” to protect the safety of a witness, §1226(c)(2) (emphasis added), what Congress meant, the dissent tells us, is that the Attorney General must release an alien even when no witness is in need of protection—so long as the alien is neither a flight risk nor a danger to the community, see post, at 25–27. The contortions needed to reach these remarkable conclusions are a sight to behold.
Let us start with the simple term “detain.” According to the dissent, “detain” means the absence of “unrestrained freedom.” Post, at 21. An alien who is subject to any one of “numerous restraints”—including “a requirement to obtain medical treatment,” “to report at regular intervals,” or even simply to comply with “a curfew”—is “detained” in the dissent’s eyes, even if that alien is otherwise free to roam the streets. Ibid.
This interpretation defies ordinary English usage. The dictionary cited by the dissent, the Oxford English Dictionary (OED), defines “detain” as follows: “[t]o keep in confinement or under restraint; to keep prisoner.” 4 OED 543 (2d ed. 1989) (emphasis added); see also OED (3d ed. 2012), http://www.oed.com/view/Entry/51176 (same). Other general-purpose dictionaries provide similar definitions. See, e.g., Webster’s Third New International Dictionary 616 (1961) (“to hold or keep in or as if in custody <~ed by the police for questioning>”); Webster’s New International Dictionary 710 (2d ed. 1934) (“[t]o hold or keep as in custody”); American Heritage Dictionary 508 (def. 2) (3d ed. 1992) (“To keep in custody or temporary confinement”); Webster’s New World College Dictionary 375 (3d ed. 1997) (“to keep in custody; confine”). And legal dictionaries define “detain” the same way. See, e.g., Ballentine’s Law Dictionary 343 (3d ed. 1969) (“To hold; to keep in custody; to keep”); Black’s Law Dictionary 459 (7th ed. 1999) (“The act or fact of holding a person in custody; confinement or compulsory delay”).

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How does the dissent attempt to evade the clear meaning of “detain”? It resorts to the legal equivalent of a sleight-of-hand trick. First, the dissent cites a passage in Blackstone stating that arrestees could always seek release on bail. Post, at 8–9. Then, having established the obvious point that a person who is initially detained may later be released from detention, the dissent reasons that this means that a person may still be regarded as detained even after he is released from custody. Post, at 21. That, of course, is a nonsequitur. Just because a person who is initially detained may later be released, it does not follow that the person is still “detained” after his period of detention comes to an end.
If there were any doubt about the meaning of the term “detain” in the relevant statutory provisions, the context in which they appear would put that doubt to rest. Title 8 of the United States Code, the title dealing with immigration, is replete with references that distinguish between “detained” aliens and aliens who are free to walk the streets in the way the dissent imagines. Section 1226(a), for instance, distinguishes between the power to “continue to detain the arrested alien” and the power to “release the alien on . . . bond.” But if the dissent were right, that distinction would make no sense: An “alien released on bond” would also be a “detained alien.” Here is another example: In §1226(b), Congress gave the Attorney General the power to “revoke” at any time “a bond or parole authorized under subsection (a) of this section, rearrest the alien under the original warrant, and detain the alien.” It beggars belief that Congress would have given the Attorney General the power to detain a class of aliens who, under the dissent’s reading, are already “detained” because they are free on bond. But that is what the dissent would have us believe. Consider, finally, the example of §1226(c). As noted, that provision obligates the Attorney General to “take into custody” certain aliens whenever

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they are “released, without regard to whether the alien is released on parole, supervised release, or probation.” On the dissent’s view, however, even aliens “released on parole, supervised release, or probation” are “in custody”— and so there would be no need for the Attorney General to take them into custody again.6
Struggling to prop up its implausible interpretation, the dissent looks to our prior decisions for aid, but that too fails. The best case it can find is Tod v. Waldman, 266 U. S. 547 (1925), a grant of a petition for rehearing in which the Court clarified that “[n]othing in [its original] order . . . shall prejudice an application for release on bail of the respondents pending compliance with the mandate of this Court.” Id., at 548. According to the dissent, that two-page decision from almost a century ago supports its reading because the underlying immigration statute in that case—like some of the provisions at issue here— mandated that the relevant class of aliens “ ‘shall be detained’ ” pending the outcome of an inspection process.
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6 As the dissent notes, §1158(d)(2) regulates employment authorization for certain “applicant[s] for asylum.” Were all asylum applicants detained, the dissent says, that provision would make no sense, because detained aliens do not need work authorizations. Post, at 23–24. But §1158(d)(2) applies not only to aliens seeking asylum status “in accordance with . . . section 1225(b)” (and thus aliens who are detained), but also to all aliens already “physically present in the United States.” §1158(a)(1). Many of those aliens will be in the country lawfully, and thus they will not be detained and will be able to work pending the outcome of their asylum application. For example, an alien may apply for asylum after being admitted into the country on a short-term visa. While the application is pending, §1158 may offer a way for that alien to find employment.
In response, the dissent accuses us of “apply[ing] this provision to some asylum applicants but not the ones before us.” Post, at 23–24. That is not remotely what we are doing. We do not doubt that §1158(d)(2) “applies” to all “applicant[s] for asylum” as it says, even if some of those applicants are not as likely to receive an employment authorization (for instance, because they are detained) as others.

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See post, at 21–22 (quoting Act of Feb. 5, 1917, §16, 39 Stat. 886).
That reads far too much into Waldman. To start, the Court did not state that the aliens at issue were entitled to bail or even that bail was available to them. Instead, the Court merely noted that its decision should not “prejudice” any application the aliens might choose to file. That is notable, for in their petition for rehearing the aliens had asked the Court to affirmatively “authorize [them] to give bail.” Petition for Rehearing in Tod v. Waldman, O. T. 1924, No. 95, p. 17 (emphasis added). By refusing to do so, the Court may have been signaling its skepticism about their request. But it is impossible to tell. That is precisely why we, unlike the dissent, choose not to go beyond what the sentence actually says. And Waldman says nothing about how the word “detain” should be read in the context of §§1225(b), 1226(c), and 1226(a).7
Neither does Zadvydas. It is true, as the dissent points out, that Zadvydas found “that the words ‘ “may be detained” ’ [are] consistent with requiring release from longterm detention,” post, at 23 (quoting 533 U. S., at 682), but that is not because there is any ambiguity in the term “detain.” As we have explained, the key statutory provision in Zadvydas said that the aliens in question “may,” not “shall,” be detained, and that provision also failed to specify how long detention was to last. Here, the statutory provisions at issue state either that the covered aliens “shall” be detained until specified events take place, see 8 U. S. C. §1225(b)(1)(B)(ii) (“further consideration of the
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7 It should not be surprising by this point that even the aliens in Waldman understood “detention” in contradistinction to “bail.” See Petition for Rehearing in Tod v. Waldman, O. T. 1924, No. 95, pp. 17–18 (“[T]he Court’s mandate should authorize relators to give bail, instead of having [them] go to Ellis Island and remain there in custody pending an appeal . . . which may involve very long detention pending hearing of the appeal . . .” (capitalization omitted and emphasis added)).

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application for asylum”); §1225(b)(2)(A) (“a [removal] proceeding”), or provide that the covered aliens may be released “only if ” specified conditions are met, §1226(c)(2). The term that the Zadvydas Court found to be ambiguous was “may,” not “detain.” See 533 U. S., at 697. And the opinion in that case consistently used the words “detain” and “custody” to refer exclusively to physical confinement and restraint. See id., at 690 (referring to “[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint” (emphasis added)); id., at 683 (contrasting aliens “released on bond” with those “held in custody”).8
The dissent offers no plausible interpretation of §§1225(b), 1226(c), and 1226(a). But even if we were to accept the dissent’s interpretation and hold that “detained” aliens in the “custody” of the Government include aliens released on bond, that would still not justify the dissent’s proposed resolution of this case. The Court of Appeals held that aliens detained under the provisions at issue must be given periodic bond hearings, and the dissent agrees. See post, at 2 (“I would interpret the statute as requiring bail hearings, presumptively after six months of confinement”). But the dissent draws that 6-month limitation out of thin air. However broad its interpretation of the words “detain” and “custody,” nothing in any of the relevant provisions imposes a 6-month time limit on detention without the possibility of bail. So if the dissent’s interpretation is right, then aliens detained under §§1225(b), 1226(c), and 1226(a) are entitled to bail hearings as soon as their detention begins rather than six
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8 The dissent argues that because “the question at issue [in Zadvydas] was release from detention,” “the key word was consequently ‘may.’ ” Post, at 23. We agree but fail to see the point. If, as the dissent admits, Zadvydas was about “release from detention” and not about what qualifies as “detention,” then it is unclear why the dissent thinks that decision supports its unorthodox interpretation of the word “detention.”

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months later. “Detained” does not mean “released on bond,” and it certainly does not mean “released on bond but only after six months of mandatory physical confinement.”
The dissent’s utterly implausible interpretation of the statutory language cannot support the decision of the court below.
V
Because the Court of Appeals erroneously concluded that periodic bond hearings are required under the immigration provisions at issue here, it had no occasion to consider respondents’ constitutional arguments on their merits. Consistent with our role as “a court of review, not of first view,” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005), we do not reach those arguments. Instead, we remand the case to the Court of Appeals to consider them in the first instance.
Before the Court of Appeals addresses those claims, however, it should reexamine whether respondents can continue litigating their claims as a class. When the District Court certified the class under Rule 23(b)(2) of the Federal Rules of Civil Procedure, it had their statutory challenge primarily in mind. Now that we have resolved that challenge, however, new questions emerge.
Specifically, the Court of Appeals should first decide whether it continues to have jurisdiction despite 8 U. S. C. §1252(f )(1). Under that provision, “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of [§§1221–1232] other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.” Section 1252(f)(1) thus “prohibits federal courts from granting classwide injunctive relief against the operation of §§1221–123[2].” American-Arab Anti-Discrimination Comm., 525 U. S., at 481. The Court

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of Appeals held that this provision did not affect its jurisdiction over respondents’ statutory claims because those claims did not “seek to enjoin the operation of the immigration detention statutes, but to enjoin conduct . . . not authorized by the statutes.” 591 F. 3d, at 1120. This reasoning does not seem to apply to an order granting relief on constitutional grounds, and therefore the Court of Appeals should consider on remand whether it may issue classwide injunctive relief based on respondents’ constitutional claims. If not, and if the Court of Appeals concludes that it may issue only declaratory relief, then the Court of Appeals should decide whether that remedy can sustain the class on its own. See, e. g., Rule 23(b)(2) (requiring “that final injunctive relief or corresponding declaratory relief [be] appropriate respecting the class as a whole” (emphasis added)).
The Court of Appeals should also consider whether a Rule 23(b)(2) class action continues to be the appropriate vehicle for respondents’ claims in light of Wal-Mart Stores, Inc. v. Dukes, 564 U. S. 338 (2011). We held in Dukes that “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class.” Id., at 360. That holding may be relevant on remand because the Court of Appeals has already acknowledged that some members of the certified class may not be entitled to bond hearings as a constitutional matter. See, e. g., 804 F. 3d, at 1082; 715 F. 3d, at 1139– 1141 (citing, e. g., Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206 (1953)). Assuming that is correct, then it may no longer be true that the complained-of “ ‘conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’ ” Dukes, supra, at 360 (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 132 (2009)).
Similarly, the Court of Appeals should also consider on

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remand whether a Rule 23(b)(2) class action litigated on common facts is an appropriate way to resolve respondents’ Due Process Clause claims. “[D]ue process is flexible,” we have stressed repeatedly, and it “calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U. S. 471, 481 (1972); see also Landon v. Plasencia, 459 U. S. 21, 34 (1982).
VI
We reverse the judgment of the United States Court of Appeals for the Ninth Circuit and remand the case for further proceedings.

It is so ordered.

JUSTICE KAGAN took no part in the decision of this case.

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1

Opinion of THOMAS, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–1204
_________________
DAVID JENNINGS, ET AL., PETITIONERS v. ALEJANDRO RODRIGUEZ, ET AL., INDIVID-
UALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[February 27, 2018]
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins except for footnote 6, concurring in Part I and Parts III–VI and concurring in the judgment.
In my view, no court has jurisdiction over this case. Congress has prohibited courts from reviewing aliens’ claims related to their removal, except in a petition for review from a final removal order or in other circumstances not present here. See 8 U. S. C. §1252(b)(9). Respondents have not brought their claims in that posture, so §1252(b)(9) removes jurisdiction over their challenge to their detention. I would therefore vacate the judgment below with instructions to dismiss for lack of jurisdiction. But because a majority of the Court believes we have jurisdiction, and I agree with the Court’s resolution of the merits, I join Part I and Parts III–VI of the Court’s opinion.
I
Respondents are a class of aliens whose removal proceedings are ongoing. Respondents allege that the statutes that authorize their detention during removal proceedings do not authorize “prolonged” detention unless they are given an individualized bond hearing at which

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the Government “prove[s] by clear and convincing evidence” that their detention remains justified. Third Amended Complaint in Rodriguez v. Holder, No. CV 07– 03239 (CD Cal., Oct. 22, 2010), pp. 30–31 (Third Amended Complaint). If the statutes do authorize “prolonged” detention, respondents claim that the statutes violate the Due Process Clause of the Fifth Amendment. Ibid. In their complaint, respondents sought declaratory and injunctive relief from detention during their removal proceedings. Id., at 31–32. The District Court certified a class of aliens under Federal Rule of Civil Procedure 23(b)(2) who, among other things, “are or were detained for longer than six months pursuant to one of the general immigration detention statutes.” Class Certification Order in Rodriguez v. Holder, No. CV 07–03239 (CD Cal., Apr. 5, 2010), p. 2; Rodriguez v. Hayes, 591 F. 3d 1105, 1122–1126 (CA9 2010). After the parties moved for summary judgment, the District Court entered a permanent injunction in favor of the class, which requires the named Government officials1 to take steps to “timely identify all current and future class members,” to update class member lists with the District Court every 90 days, and to provide class members with bond hearings that comply with particular substantive and procedural requirements. Order, Judgment, and Permanent Injunction in Rodriguez v. Holder, No. CV 07–03239 (CD Cal., Aug. 6, 2013), pp. 5– 6 (Order, Judgment, and Permanent Injunction).

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1 The named Government officials are the Attorney General of the United States, the Secretary of the Department of Homeland Security, the Director of the Executive Office for Immigration Review, the Director and Assistant Director of the Los Angeles District of Immigration and Customs Enforcement, and several directors of jails and detention facilities.

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II A
Although neither party raises §1252(b)(9), this Court has an “independent obligation” to assess whether it deprives us and the lower courts of jurisdiction. Arbaugh v. Y & H Corp., 546 U. S. 500, 514 (2006). This Court has described §1252(b)(9) as a “ ‘zipper’ clause.” See Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 483 (1999) (AADC); INS v. St. Cyr, 533 U. S. 289, 313 (2001). That description is apt because, when an alien raises a claim related to his removal, §1252(b)(9) closes all but two avenues for judicial review:
“Consolidation of questions for judicial review “Judicial review of all questions of law and fact, in-
cluding interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under [8 U. S. C. §§1151–1382] shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.” (Emphasis added.)
The text of this provision is clear. Courts generally lack jurisdiction over “all questions of law and fact,” both “constitutional” and “statutory,” that “aris[e] from” an “action taken or proceeding brought to remove an alien.” If an alien raises a claim arising from such an action or proceeding, courts cannot review it unless they are reviewing “a final order” under §1252(a)(1) or exercising jurisdiction

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“otherwise provided” in §1252.2 Neither “habeas corpus” nor “any other provision of law” can be used to avoid §1252(b)(9)’s jurisdictional bar. In short, if a claim arises from an action taken to remove an alien, §1252(b)(9) permits judicial review in only two circumstances: in connection with review of a final removal order and via a specific grant of jurisdiction in §1252.
Respondents do not argue that any specific grant of jurisdiction applies here, and they do not seek review of a final removal order under §1252(a)(1). Thus, a court may review respondents’ claims only if they can show that §1252(b)(9)’s jurisdictional bar does not apply in the first place because their claims do not “aris[e] from any action taken or proceeding brought to remove an alien.”
Respondents cannot make that showing. Section 1252(b)(9) is a “general jurisdictional limitation” that applies to “all claims arising from deportation proceedings” and the “many . . . decisions or actions that may be part of the deportation process.” AADC, supra, at 482– 483. Detaining an alien falls within this definition— indeed, this Court has described detention during removal proceedings as an “aspect of the deportation process.” Demore v. Kim, 538 U. S. 510, 523 (2003); see also Carlson v. Landon, 342 U. S. 524, 538 (1952) (“Detention is necessarily a part of [the] deportation procedure”). As the Court explains today, Congress either mandates or permits the detention of aliens for the entire duration of their removal proceedings. See ante, at 12–23. This detention, the
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2 Section 1252 provides a few specific grants of jurisdiction beyond §1252(a)(1)'s general grant of jurisdiction over final removal orders and all other related questions of law and fact. Section 1252(b)(7), for example, allows an alien to challenge the validity of his removal order during criminal proceedings if he is charged with willfully failing to depart the United States. And §1252(e)(2) allows an alien who is denied admission to the United States and ordered removed to raise certain claims in habeas corpus proceedings.

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Court further explains, is meant to ensure that the Government can ultimately remove them. See ante, at 1; accord, Demore, supra, at 528 (explaining that detention during removal proceedings “necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed”). The phrase “any action taken . . . to remove an alien from the United States” must at least cover congressionally authorized portions of the deportation process that necessarily serve the purpose of ensuring an alien’s removal. Claims challenging detention during removal proceedings thus fall within the heartland of §1252(b)(9).
B
The plurality, the dissent, and respondents each offer reasons why §1252(b)(9) does not apply to this case. The plurality reasons that applying §1252(b)(9) to detention claims requires an overly expansive reading of “arising from.” See ante, at 9–10. The dissent contends that §1252(b)(9) applies only to challenges to the removal order itself. Post, at 31. And respondents argue that, if §1252(b)(9) applies to their claims, they will have no meaningful way to challenge their detention during their removal proceedings.3 Tr. of Oral Arg. 36. None of these arguments persuades me.
1
The plurality asserts that §1252(b)(9) covers respond-

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3 Respondents also asserted at oral argument that the Government “has said repeatedly” that §1252(b)(9) does not apply to detention claims. Tr. of Oral Arg. 36. But our “independent obligation” to evaluate jurisdiction, Arbaugh v. Y & H Corp., 546 U. S. 500, 514 (2006), means that we cannot accept the Government’s concessions on this point. See King Bridge Co. v. Otoe County, 120 U. S. 225, 226 (1887).

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THOMAS, J., concurring
ents’ claims only if the words “arising from” are given an “expansive interpretation.” Ante, at 9. I am of a different view. Even if “arising from” is read narrowly, §1252(b)(9) still covers the claims at issue in this case. That is because detention is an “action taken . . . to remove” an alien. And even the narrowest reading of “arising from” must cover claims that directly challenge such actions. See AADC, 525 U. S., at 482–483.
The main precedent that the plurality cites to support its narrow reading of “arising from” demonstrates that §1252(b)(9) applies here. See ante, at 10 (citing AADC, 525 U. S., at 482–483). In AADC, the Court explained that §1252(b)(9) covers “all claims arising from deportation proceedings” and the “many . . . decisions or actions that may be part of the deportation process.” Ibid. The Court even listed examples of the type of claims that would be covered, including challenges to the decision “to open an investigation” and the decision “to surveil the suspected [immigration-law] violator.” Id., at 482. If surveilling a suspected violator falls under the statute, then the detention of a known violator certainly does as well.
The plurality dismisses my “expansive interpretation” because it would lead to “staggering results,” supposedly barring claims that are far afield from removal. See ante, at 9 (describing lawsuits challenging inhumane conditions of confinement, assaults, and negligent driving). But that is not the case. Unlike detention during removal proceedings, those actions are neither congressionally authorized nor meant to ensure that an alien can be removed. Thus, my conclusion that §1252(b)(9) covers an alien’s challenge to the fact of his detention (an action taken in pursuit of the lawful objective of removal) says nothing about whether it also covers claims about inhumane treatment, assaults, or negligently inflicted injuries suffered during detention (actions that go beyond the Government’s lawful

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pursuit of its removal objective). Cf. Bell v. Wolfish, 441 U. S. 520, 536–539 (1979) (drawing a similar distinction).
2
The dissent takes a different approach. Relying on the prefatory clause to §1252(b), it asserts that §1252(b)(9) “by its terms applies only ‘[w]ith respect to review of an order of removal under [§1252(a)(1)].’ ” Post, at 31 (quoting 8 U. S. C. §1252(b)). The dissent reads the prefatory clause to mean that §1252(b)(9) applies only to a “challenge [to] an order of removal.” Post, at 31. That reading is incorrect.
Section 1252(b)(9) is not restricted to challenges to removal orders. The text refers to review of “all questions of law and fact” arising from removal, not just removal orders. (Emphasis added.) And it specifies that §1252(a)(1) provides the only means for reviewing “such an order or such questions of law or fact.” Ibid. (emphasis added). The term “or” is “ ‘almost always disjunctive, that is, the words it connects are to be given separate meanings.’ ” Loughrin v. United States, 573 U. S. ___, ___ (2014) (slip op., at 6) (quoting United States v. Woods, 571 U. S. 31, 45–46 (2013)). By interpreting §1252(b)(9) as governing only removal orders, the dissent reads “or such questions of law or fact” out of the statute. It also renders superfluous §1252(a)(5), which already specifies that the review made available under §1252(a)(1) “shall be the sole and exclusive means for judicial review of an order of removal.” This Court typically disfavors such interpretations. See AADC, supra, at 483.
The prefatory clause of §1252(b) does not change the meaning of §1252(b)(9). The prefatory clause states that the subparagraphs of §1252(b), including §1252(b)(9), impose requirements “[w]ith respect to review of an order of removal under subsection (a)(1).” The phrase “with respect to” means “referring to,” “concerning,” or “relating

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to.” Oxford American Dictionary and Language Guide 853 (1999 ed.); accord, Webster’s New Universal Unabridged Dictionary 1640 (2003 ed.); American Heritage Dictionary 1485 (4th ed. 2000). Read together, the prefatory clause and §1252(b)(9) mean that review of all questions arising from removal must occur in connection with review of a final removal order under §1252(a)(1), which makes sense given that §1252(b)(9) is meant to “[c]onsolidat[e] . . . questions for judicial review.” Tellingly, on the two previous occasions when this Court interpreted §1252(b)(9), it did not understand §1252(b)(9) as limited to challenges to removal orders. See AADC, supra, at 482–483 (stating that §1252(b)(9) is a “general jurisdictional limitation” that applies to “all claims arising from deportation proceedings” and “the many . . . decisions or actions that may be part of the deportation process”); St. Cyr, 533 U. S., at 313, n. 37 (clarifying that §1252(b)(9) requires “claims that were viewed as being outside of a ‘final order’ ” to be “consolidated in a petition for review and considered by the courts of appeals” in their review of the final removal order under §1252(a)(1)). Thus, despite the dissent’s assertion to the contrary, the prefatory clause plainly does not change the scope of §1252(b)(9), which covers “all questions of law or fact” arising from the removal process.
3
At oral argument, respondents asserted that, if §1252(b)(9) bars their lawsuit, then the only review available would be “a petition for review of [a] final removal order” under §1252(a)(1), which takes place “after all the detention has already happened.”4 Tr. of Oral Arg. 36. I
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4 Contrary to respondents’ argument, some of the respondents will get review before “all the detention has already happened.” Respondents who successfully petition for review to the Court of Appeals from a final removal order and obtain a remand to the immigration court, like class representative Alejandro Rodriguez did here, will have an opportunity

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interpret respondents’ argument as a claim that §1252(b)(9) would be unconstitutional if it precluded meaningful review of their detention. This argument is unpersuasive and foreclosed by precedent.
The Constitution does not guarantee litigants the most effective means of judicial review for every type of claim they want to raise. See AADC, 525 U. S., at 487–492 (rejecting a similar argument); Heikkila v. Barber, 345 U. S. 229, 237 (1953) (explaining that limitations on judicial review of deportation must be followed “despite [their] apparent inconvenience to the alien”). This is especially true in the context of deportation, where limits on the courts’ jurisdiction have existed for almost as long as federal immigration laws, and where this Court has repeatedly affirmed the constitutionality of those limits.5
Indeed, this Court has already rejected essentially the same argument that respondents raise here. In AADC, the Court held that §1252(g), a provision similar to §1252(b)(9), barred the aliens’ claim that the Government was violating the First Amendment by selectively enforc-
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to obtain review of their detention before it is complete. See Third Amended Complaint, at 9–12.
5 See, e.g., Act of Aug. 18, 1884, 28 Stat. 390 (“In every case where an alien is excluded from admission into the United States under any law or treaty now existing or hereinafter made, the decision of the appropriate immigration or customs officers, if adverse to the admission of such alien, shall be final, unless reversed on appeal to the Secretary of Treasury”), upheld in Lem Moon Sing v. United States, 158 U. S. 538, 547–550 (1895); Immigration Act of 1891, §8, 26 Stat. 1085 (“All decisions made by the inspection officers or their assistants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the superintendent of immigration, whose action shall be subject to review by the Secretary of Treasury”), upheld in Ekiu v. United States, 142 U. S. 651, 660 (1892); 1917 Immigration Act, §19, 39 Stat. 890 (“In every case where any person is ordered deported from the United States under the provisions of this Act, or of any law or treaty, the decision of the Secretary of Labor shall be final”), upheld in Heikkila, 345 U. S., at 233–235, 237.

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ing the immigration laws against them. 525 U. S., at 487– 492. The aliens argued that constitutional avoidance required the Court to interpret §1252(g) as not applying to their claims because the only remaining avenue for review—a petition for review of a final removal order under §1252(a)(1)—would be “unavailing” and would “come too late to prevent the ‘chilling effect’ upon their First Amendment rights.” Id., at 487–488. The Court rejected this argument because “an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.” Id., at 488. The Court further explained that it had a duty to enforce Congress’ limitations on judicial review, except perhaps in “a rare case in which the alleged basis of discrimination is so outrageous that the foregoing considerations [ justifying limited review could] be overcome.” Id., at 491.
Like in AADC, respondents’ lack-of-meaningful-review argument does not allow us to ignore the jurisdictional limitations that Congress has imposed. This Court has never held that detention during removal proceedings is unconstitutional. To the contrary, this Court has repeatedly recognized the constitutionality of that practice. See Demore, 538 U. S., at 523 (explaining that detention is “a constitutionally valid aspect of the deportation process”); accord, Reno v. Flores, 507 U. S. 292, 305–306 (1993); Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206, 215 (1953); Carlson, 342 U. S., at 538, 542. Nor does this lawsuit qualify as the “rare case in which the alleged [executive action] is so outrageous” that it could thwart the jurisdictional limitations in §1252(b)(9). AADC, supra, at 491. The Government’s detention of respondents is entirely routine and indistinguishable from the detention that we have repeatedly upheld in the past. Thus, regardless of the inconvenience that §1252(b)(9) might pose for respondents, this Court must enforce it as written. Respondents must raise their claims in petitions for review of

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their final removal orders.6
III
Because I conclude that §1252(b)(9) bars jurisdiction to hear respondents’ claims, I will also address whether its application to this case violates the Suspension Clause, see Art. I, §9, cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”). It does not. Even assuming the Suspension Clause bars Congress from stripping habeas jurisdiction over respondents’ claims, but see St. Cyr, 533 U. S., at 337–346 (Scalia, J., dissenting), this case does not involve a habeas petition.
Respondents do not seek habeas relief, as understood by our precedents. Although their complaint references the general habeas statute, see Third Amended Complaint, at 1, it is not a habeas petition. The complaint does not request that the District Court issue any writ. See id., at 31–32. Rather, it seeks a declaration and an injunction that would provide relief for both present and future class members, including future class members not yet detained. Ibid. Indeed, respondents obtained class certification under Federal Rule of Civil Procedure 23(b)(2), which applies only when the class seeks “final injunctive relief or corresponding declaratory relief.”7
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6 I take no position on whether some of the respondents will face other jurisdictional hurdles, even on review of their final removal orders. See, e.g., §§1252(a)(2)(A), (B). I also continue to agree with Justice O’Connor’s concurring opinion in Demore v. Kim, 538 U. S. 510 (2003), which explained that §1226(e) “unequivocally deprives federal courts of jurisdiction to set aside ‘any action or decision’ by the Attorney General” regarding detention. Id., at 533 (opinion concurring in part and concurring in judgment).
7 This Court has never addressed whether habeas relief can be pursued in a class action. See Schall v. Martin, 467 U. S. 253, 261, n. 10 (1984) (reserving this question). I take no position on that issue here,

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Nor did respondents obtain habeas relief. When their case concluded, respondents obtained a classwide permanent injunction. See Order, Judgment, and Permanent Injunction, at 5–6. That classwide injunction looks nothing like a typical writ. It is not styled in the form of a conditional or unconditional release order. Cf. United States v. Jung Ah Lung, 124 U. S. 621, 622 (1888) (describing habeas relief as “order[ing] the discharge from custody of the person in whose behalf the writ was sued out”); Chin Yow v. United States, 208 U. S. 8, 13 (1908) (awarding habeas relief by ordering the release of the alien if certain conditions were not satisfied). It applies to future class members, including individuals who were not in custody when the injunction was issued. Cf. 28 U. S. C. §2241(c) (generally precluding issuance of the writ unless the petitioner is “in custody”). And it is directed to at least one individual, the Director for the Executive Office for Immigration Review, who is not a custodian. Cf. Rumsfeld v. Padilla, 542 U. S. 426, 434 (2004) (explaining that “the proper respondent to a habeas petition is ‘the person who has custody over [the petitioner]’ ” (quoting 28 U. S. C. §2242)).
Immigration law has long drawn a distinction between the declaratory and injunctive relief that respondents sought here and habeas relief. In Heikkila, for instance, this Court distinguished habeas relief from “injunctions, declaratory judgments and other types of relief ” that “courts ha[d] consistently rejected” in immigration cases. 345 U. S., at 230. The Court rejected the alien’s request for “injunctive and declaratory relief ” because Congress had authorized courts to grant relief only in habeas proceedings. Id., at 230, 237. We reaffirmed this distinction in St. Cyr, where we noted that the 1961 Immigration and
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since I conclude that respondents are not seeking habeas relief in the first place.

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Nationality Act, 75 Stat. 650, withdrew the district courts’ “authority to grant declaratory and injunctive relief,” but not habeas relief. 533 U. S., at 309–310; see also Shaughnessy v. Pedreiro, 349 U. S. 48, 49, 52–53 (1955) (holding that the Administrative Procedure Act, which authorizes courts to grant declaratory and injunctive relief, authorized “judicial review of deportation orders other than by habeas corpus” (emphasis added)). And Congress has confirmed this distinction in its immigration statutes by allowing one form of relief, but not the other, in particular circumstances. Compare, e.g., §1252(e)(1) (prohibiting courts from granting “declaratory, injunctive, or other equitable relief in any action pertaining to an order to exclude an alien in accordance with section 1225(b)(1)”) with §1252(e)(2) (allowing “judicial review . . . in habeas corpus proceedings” of particular “determination[s] made under section 1225(b)(1)”).
Respondents’ suit for declaratory and injunctive relief, in sum, is not a habeas petition. The Suspension Clause protects “[t]he Privilege of the Writ of Habeas Corpus,” not requests for injunctive relief. Because respondents have not sought a writ of habeas corpus, applying §1252(b)(9) to bar their suit does not implicate the Suspension Clause.
* * *
Because §1252(b)(9) deprives courts of jurisdiction over respondents’ claims, we should have vacated the judgment below and remanded with instructions to dismiss this case for lack of jurisdiction. But a majority of the Court has decided to exercise jurisdiction. Because I agree with the Court’s disposition of the merits, I concur in Part I and Parts III–VI of its opinion.

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BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–1204
_________________
DAVID JENNINGS, ET AL., PETITIONERS v. ALEJANDRO RODRIGUEZ, ET AL., INDIVID-
UALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[February 27, 2018]
JUSTICE BREYER, with whom JUSTICE GINSBURG and JUSTICE SOTOMAYOR join, dissenting.
This case focuses upon three groups of noncitizens held in confinement. Each of these individuals believes he or she has the right to enter or to remain within the United States. The question is whether several statutory provisions of the Immigration and Nationality Act, 8 U. S. C. §1101 et seq., forbid granting them bail.
The noncitizens at issue are asylum seekers, persons who have finished serving a sentence of confinement (for a crime), or individuals who, while lacking a clear entitlement to enter the United States, claim to meet the criteria for admission, see infra, at 20, 25–26, 29–30. The Government has held all the members of the groups before us in confinement for many months, sometimes for years, while it looks into or contests their claims. But ultimately many members of these groups win their claims and the Government allows them to enter or to remain in the United States. Does the statute require members of these groups to receive a bail hearing, after, say, six months of confinement, with the possibility of release on bail into the community provided that they do not pose a risk of flight or a threat to the community’s safety?

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BREYER, J., dissenting
The Court reads the statute as forbidding bail, hence forbidding a bail hearing, for these individuals. In my view, the majority’s interpretation of the statute would likely render the statute unconstitutional. Thus, I would follow this Court’s longstanding practice of construing a statute “so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.” United States v. Jin Fuey Moy, 241 U. S. 394, 401 (1916). And I would interpret the statute as requiring bail hearings, presumptively after six months of confinement. Cf. Zadvydas v. Davis, 533 U. S. 678, 701 (2001).
I The Respondents
Because of their importance to my conclusion, I shall repeat, with references to record support, the key characteristics of the groups of noncitizens who appear before us.
First, as I have said, the respondents in this case are members of three special classes of noncitizens, the most important of whom (1) arrive at our borders seeking asylum or (2) have committed crimes but have finished serving their sentences of imprisonment. We also consider those who (3) arrive at our borders believing they are entitled to enter the United States for reasons other than asylum seeking, but lack a clear entitlement to enter.
Second, all members of the first group, the asylum seekers, have been found (by an immigration official) to have a “credible fear of persecution” in their home country should the United States deny them admittance. 8 U. S. C. §1225(b)(1)(B)(ii). All members of the second group have, as I have said, finished serving their criminal sentences of confinement. §1226(c)(1). All members of the third group may have (or may simply believe they have) a strong claim for admittance, but they are neither “clearly and beyond a doubt entitled to be admitted” nor conclusively determined to be inadmissible by an immigration

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officer on grounds of fraud or lack of required documentation. §1225(b)(2)(A); see §§1225(b)(1)(A)(i), 1182(a)(6)(C), (a)(7).
Third, members of the first two classes number in the thousands. See Brief for 46 Social Science Researchers and Professors as Amici Curiae 6, 8 (identifying, in 2015, 7,500 asylum seekers and 12,220 noncitizens who have finished serving sentences of criminal confinement, a portion of whom are class members detained for more than six months).
Fourth, detention is often lengthy. The classes before us consist of people who were detained for at least six months and on average one year. App. 92, 97. The record shows that the Government detained some asylum seekers for 831 days (nearly 2½ years), 512 days, 456 days, 421 days, 354 days, 319 days, 318 days, and 274 days—before they won their cases and received asylum. Id., at 97, 228–236. It also shows that the Government detained one noncitizen for nearly four years after he had finished serving a criminal sentence, and the Government detained other members of this class for 608 days, 561 days, 446 days, 438 days, 387 days, and 305 days—all before they won their cases and received relief from removal. Id., at 92, 213–220.
Fifth, many of those whom the Government detains eventually obtain the relief they seek. Two-thirds of the asylum seekers eventually receive asylum. Id., at 98 (Table 28); id., at 135 (Table 38); App. to Pet. for Cert. 40a. Nearly 40% of those who have served criminal sentences receive relief from removal, because, for example, their earlier conviction involved only a short sentence. See App. 95 (Table 23); id., at 135 (Table 38). See also App. to Pet. for Cert. 34a; App. 210, 216–217, 312–313 (between onehalf and two-thirds of the class served sentences less than six months, e.g., a 2-month sentence for being under the influence of a controlled substance, or an 8-day jail term

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for a minor firearms offense). Sixth, these very asylum seekers would have received
bail hearings had they first been taken into custody within the United States rather than at the border. See In re X-K-, 23 I. & N. Dec. 731, 734–735 (BIA 2005); 8 U. S. C. §1226(a).
Seventh, as for those who have finished serving their sentences (for crimes), some of those who are less dangerous would (on the majority’s view) be held without bail the longest, because their claims will take longer to adjudicate. Moreover, those noncitizens would have no opportunity to obtain bail while they pursue their claims, but if they lose their claims, the Government must release them, typically within six months, if the Government can find no other country willing to take them. See Zadvydas, supra, at 701.
Eighth, all the respondents are held in detention within the geographical boundaries of the United States, either in facilities controlled by United States Immigration and Customs Enforcement (ICE) or in state or local jails that hold them on ICE’s behalf. App. 302–304; see ICE, Detention Facility Locator, online at http://www.ice.gov/ detention-facilities (all Internet materials as last visited Feb. 21, 2018).
Ninth, the circumstances of their detention are similar, so far as we can tell, to those in many prisons and jails. And in some cases the conditions of their confinement are inappropriately poor. See Dept. of Homeland Security (DHS), Office of Inspector General (OIG), DHS OIG Inspection Cites Concerns With Detainee Treatment and Care at ICE Detention Facilities (2017) (reporting instances of invasive procedures, substandard care, and mistreatment, e.g., indiscriminate strip searches, long waits for medical care and hygiene products, and, in the case of one detainee, a multiday lock down for sharing a cup of coffee with another detainee).

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These record-based facts make evident what I said at the outset: The case concerns persons whom immigration authorities believe are not citizens and may not have a right to enter into, or remain within, the United States. Nonetheless they likely have a reasonable claim that they do have such a right. The Government detains them, often for many months while it determines the merits of, or contests, their claims. To repeat the question before us: Does the statute entitle an individual member of one of these classes to obtain, say, after six months of detention, a bail hearing to decide whether he or she poses a risk of flight or danger to the community and, if not, to receive bail?
II The Constitutional Question
The majority reads the relevant statute as prohibiting bail and hence prohibiting a bail hearing. In my view, the relevant constitutional language, purposes, history, tradition, and case law all make clear that the majority’s interpretation at the very least would raise “grave doubts” about the statute’s constitutionality. See Jin Fuey Moy, 241 U. S., at 401.
A
Consider the relevant constitutional language and the values that language protects. The Fifth Amendment says that “[n]o person shall be . . . deprived of life, liberty, or property without due process of law.” An alien is a “person.” See Wong Wing v. United States, 163 U. S. 228, 237– 238 (1896). To hold him without bail is to deprive him of bodily “liberty.” See United States v. Salerno, 481 U. S. 739, 748–751 (1987). And, where there is no bail proceeding, there has been no bail-related “process” at all. The Due Process Clause—itself reflecting the language of the Magna Carta—prevents arbitrary detention. Indeed,

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“[f]reedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Foucha v. Louisiana, 504 U. S. 71, 80 (1992); see also Demore v. Kim, 538 U. S. 510, 532 (2003) (KENNEDY, J., concurring); Zadvydas, 533 U. S., at 718 (KENNEDY, J., dissenting).
The Due Process Clause foresees eligibility for bail as part of “due process.” See Salerno, supra, at 748–751; Schilb v. Kuebel, 404 U. S. 357, 365 (1971); Stack v. Boyle, 342 U. S. 1, 4 (1951). Bail is “basic to our system of law.” Schilb, supra, at 365. It not only “permits the unhampered preparation of a defense,” but also “prevent[s] the infliction of punishment prior to conviction.” Stack, supra, at 4. It consequently limits the Government’s ability to deprive a person of his physical liberty where doing so is not needed to protect the public, see Salerno, supra, at 750–751, or to assure his appearance at, say, a trial or the equivalent, see Stack, supra, at 4–5. Why would this constitutional language and its bail-related purposes not apply to members of the classes of detained persons at issue here?
The Eighth Amendment reinforces the view that the Fifth Amendment’s Due Process Clause does apply. The Eighth Amendment forbids “[e]xcessive bail.” It does so in order to prevent bail being set so high that the level itself (rather than the reasons that might properly forbid release on bail) prevents provisional release. See Carlson v. Landon, 342 U. S. 524, 545 (1952) (explaining that the English clause from which the Eighth Amendment was copied was understood “to provide that bail shall not be excessive in those cases where it is proper to grant bail”). That rationale applies a fortiori to a refusal to hold any bail hearing at all. Thus, it is not surprising that this Court has held that both the Fifth Amendment’s Due Process Clause and the Eighth Amendment’s Excessive Bail Clause apply in cases challenging bail procedures.

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See, e.g., Salerno, supra, at 746–755; Carlson, supra, at 537–546.
It is clear that the Fifth Amendment’s protections extend to “all persons within the territory of the United States.” Wong Wing, supra, at 238. But the Government suggests that those protections do not apply to asylum seekers or other arriving aliens because the law treats arriving aliens as if they had never entered the United States; hence they are not held within its territory.
This last-mentioned statement is, of course, false. All of these noncitizens are held within the territory of the United States at an immigration detention facility. Those who enter at JFK airport are held in immigration detention facilities in, e.g., New York; those who arrive in El Paso are held in, e.g., Texas. At most one might say that they are “constructively” held outside the United States: the word “constructive” signaling that we indulge in a “legal fiction,” shutting our eyes to the truth. But once we admit to uttering a legal fiction, we highlight, we do not answer, the relevant question: Why should we engage in this legal fiction here?
The legal answer to this question is clear. We cannot here engage in this legal fiction. No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection. Whatever the fiction, would the Constitution leave the Government free to starve, beat, or lash those held within our boundaries? If not, then, whatever the fiction, how can the Constitution authorize the Government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States? The answer is that the Constitution does not authorize arbitrary detention. And the reason that is so is simple: Freedom from arbitrary detention is as ancient and important a right as any found within the Constitution’s boundaries. See

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Zadvydas, supra, at 720–721 (KENNEDY, J., dissenting) (“inadmissible aliens” who are “stopped at the border” are “entitled to be free from detention that is arbitrary or capricious”).
B
The Due Process Clause, among other things, protects “those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors,” and which were brought by them to this country. Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 277 (1856). A brief look at Blackstone makes clear that at the time of the American Revolution the right to bail was “settled”—in both civil and criminal cases.
Blackstone tells us that every prisoner (except for a convict serving his sentence) was entitled to seek release on bail. 4 Commentaries on the Laws of England 296–297 (1769). This right applied in every criminal case. Ibid. A noncapital defendant could seek bail from a local magistrate; a capital defendant could seek bail at a hearing before the Court of King’s Bench. See ibid. Although a capital defendant had no right to obtain bail, he could always seek it, because “the court of king’s bench . . . may bail for any crime whatsoever, be it treason, murder, or any other offense, according to the circumstances of the case.” Id., at 296. And although King Charles I initially claimed the right to hold a prisoner without bail on secret national security grounds, see Darnel’s Case, 3 How. St. Tr. 1 (K. B. 1627), Parliament responded by extracting from the King (via the 1628 Petition of Right) a promise to cease such detention. See 2 W. Hawkins, A Treatise of the Pleas of the Crown 107–110 (4th ed. 1771). From then on, bail was available even when a prisoner was held on the personal command of the King. Ibid. That is why Blackstone says that the King’s Bench or its judges “may bail in

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any Case whatsoever,” 4 Analysis of the Laws of England 148 (6th ed. 1771), indeed, in civil cases too, for in Blackstone’s time some private civil cases might have begun with an arrest. See 3 Blackstone, Commentaries 290 (1768). And bail was likewise an alternative to detention where a judgment debtor was unable to pay a civil judgment in the era of debtor’s prison. See, e.g., Beers v. Haughton, 9 Pet. 329, 356 (1835) (explaining that under Ohio law, “if a defendant, upon a [writ of] capias, does not give sufficient appearance bail, he shall be committed to prison”); Hamilton v. Dunklee, 1 N. H. 172 (1818).
American history makes clear that the settlers brought this practice with them to America. The Judiciary Act of 1789 conferred rights to bail proceedings in all federal criminal cases. §33, 1 Stat. 91. It said that for a noncapital defendant “bail shall be admitted” and for a capital defendant bail may be admitted in the discretion of a district judge, a circuit judge, or a Justice of the Supreme Court, taking account of “the offence, and of the evidence, and the usages of law.” Ibid. Congress enacted this law during its debate over the Bill of Rights, which it subsequently sent to the States for ratification. See 1 Annals of Cong. 90 (1789); see also Martin v. Hunter’s Lessee, 1 Wheat. 304, 351 (1816) (Members of the First Congress were “men of great learning and ability, . . . who had acted a principal part in framing, supporting, or opposing” the Constitution itself). Colonial law had been similarly, or in some instances even more, protective. See Foote, The Coming Constitutional Crisis in Bail: I, 113 U. Pa. L. Rev. 959, 974–977 (1965).
Similar laws have consistently remained part of our legal tradition. In all federal criminal cases federal Acts have provided for bail proceedings. Bail Reform Act of 1984, 18 U. S. C. §3141 et seq.; Bail Reform Act of 1966, 18 U. S. C. §3146 et seq. (1964 ed., Supp. II). Every State has similar or more generous laws. See Appendix B, infra.

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Standards for granting bail have changed somewhat over time. Initially the sole factor determining the outcome of a bail proceeding was risk of flight. See Stack, 342 U. S., at 4–5 (interpreting the 1789 bail law, applied to a noncapital defendant and in light of the Eighth Amendment, to require bail no higher than required to provide “adequate assurance” that the defendant “will stand trial and submit to sentence if found guilty,” “based upon standards relevant to the purpose of assuring the presence of that defendant”).
Congress gradually added community safety as a bail factor. In 1966, Congress provided that for capital defendants and convicted defendants pursuing appeals, bail would be granted unless the appeal was frivolous or a court had “reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community.” Bail Reform Act of 1966 §3148. In 1984, Congress modified the bail standard for noncapital defendants by adding concern for community safety. §3142(e)(1). This Court, applying the Due Process Clause and the Excessive Bail Clause to these changes, found that the 1984 Act passed constitutional muster. See Salerno, 481 U. S., at 746–755. Again, the States typically apply roughly similar or more generous standards. See Appendix B, infra.
The cases before us, however, are not criminal cases. Does that fact make a difference? The problem is that there are not many instances of civil confinement (aside from immigration detention, which I address below). Mental illness does sometimes provide an example. Individuals dangerous to themselves or to others may be confined involuntarily to a mental hospital. See, e.g., United States v. Comstock, 560 U. S. 126 (2010); Kansas v. Hendricks, 521 U. S. 346 (1997). Those persons normally do not have what we would call “a right to a bail hearing.” But they do possess equivalent rights: They have the right

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to a hearing prior to confinement and the right to review of the circumstances at least annually. See Comstock, supra, at 130–131 (initial hearing followed by review every six months); Hendricks, supra, at 353 (initial hearing followed by yearly review). And the mentally ill persons detained under these schemes are being detained because they are dangerous. That being so, there would be no point in providing a bail hearing as well. See Salerno, supra, at 748–749 (analogizing denial of bail to dangerous individuals to the civil commitment of the mentally ill). But there is every reason for providing a bail proceeding to the noncitizens at issue here, because they have received no individualized determination that they pose a risk of flight or present a danger to others, nor is there any evidence that most or all of them do.
This Court has also protected the right to a bail hearing during extradition proceedings. Wright v. Henkel, 190 U. S. 40 (1903), concerned the arrest and confinement of Whitaker Wright, an American citizen, pending extradition for a crime that Wright was accused of having committed in Great Britain. Wright sought bail. Id., at 43. Since the federal bail laws applied only to those charged with committing crimes against the United States, they did not cover Wright’s confinement. Id., at 61–62. The relevant extradition statute said nothing about bail. Id., at 62. Its language (stronger than the language at issue here) said that the individual was “to remain” in “the proper jail” until the “surrender shall be made” to the nation seeking extradition; and it added that he was “to remain” in custody “until delivered up”—though after two months he could seek release. Rev. Stat. §§5270, 5273.
In an opinion by Chief Justice Fuller, this Court unanimously wrote that, despite the lack of express statutory authorization and the risk of “embarrassment” to the United States if Wright fled, Wright could seek release on bail prior to the expiration of the 2-month period. Wright,

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190 U. S., at 62–63. Given the universal entitlement to bail under English law, the Court was “unwilling to hold that . . . courts may not in any case, and whatever the special circumstances, extend that relief ” to prisoners awaiting extradition. Id., at 63. It consequently read a silent statute as authorizing bail proceedings (though the Court went on to hold that, under applicable standards, Wright’s request for bail should be denied). Ibid.
The strongest basis for reading the Constitution’s bail requirements as extending to these civil, as well as criminal, cases, however, lies in the simple fact that the law treats like cases alike. And reason tells us that the civil confinement at issue here and the pretrial criminal confinement that calls for bail are in every relevant sense identical. There is no difference in respect to the fact of confinement itself. And I can find no relevant difference in respect to bail-related purposes.
Which class of persons—criminal defendants or asylum seekers—seems more likely to have acted in a manner that typically warrants confinement? A person charged with a crime cannot be confined at all without a finding of probable cause that he or she committed the crime. And the majority of criminal defendants lose their cases. See Dept. of Justice, Bureau of Justice Statistics, B. Reaves, Felony Defendants in Large Urban Counties, 2009– Statistical Tables, p. 24 (Dec. 2013) (reporting that 66% of felony defendants were convicted). A high percentage of the noncitizens before us, however, ultimately win the right they seek, the right to be in the United States.
Nor am I aware of any evidence indicating that the noncitizens seeking to enter, or to remain within, the United States are more likely than criminal defendants to threaten the safety of the community if released. In any event, this is a matter to be determined, case by case, at bail hearings.
Which group is more likely to present a risk of flight?

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Again, I can find no evidence suggesting that asylum seekers or other noncitizens generally present a greater risk of flight than persons imprisoned for trial where there is probable cause to believe that the confined person has committed a crime. In any event, this matter too is to be determined, case by case, at bail hearings.
If there is no reasonable basis for treating these confined noncitizens worse than ordinary defendants charged with crimes, 18 U. S. C. §3142; worse than convicted criminals appealing their convictions, §3143(b); worse than civilly committed citizens, supra, at 10–11; worse than identical noncitizens found elsewhere within the United States, supra, at 4; and worse than noncitizens who have committed crimes, served their sentences, and been definitively ordered removed (but lack a country willing to take them), supra, at 4, their detention without bail is arbitrary. Thus, the constitutional language, purposes, and tradition that require bail in instances of criminal confinement also very likely require bail in these instances of civil confinement. That perhaps is why Blackstone wrote that the law provides for the possibility of “bail in any case whatsoever.” 4 Analysis of the Laws of England, at 148.
C
My examination of the cases from this Court that considered detention of noncitizens and bail suggests that this Court, while sometimes denying bail to individuals, generally has not held that bail proceedings are unnecessary. Indeed, it almost always has suggested the contrary.
1. In 1882 Congress enacted two laws that restricted immigration: The first prohibited the entry of “Chinese laborers.” The Chinese Exclusion Act, ch. 126, 22 Stat. 58. The second prohibited the entry of “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.” Act of Aug. 3, 1882, 22 Stat. 214. Neither said a word about bail. But in

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one instance, an excluded Chinese woman was detained in jail in San Francisco pending her return to China. She sought bail. In re Ah Moy, 21 F. 808 (CC Cal. 1884). Justice Field, sitting as a Circuit Judge, wrote that the court lacked the authority to order bail because doing so would allow her to enter the United States—just what the statute forbade. Id., at 809. The other sitting Circuit Judge (Judge Sawyer) disagreed. Id., at 810 (dissenting opinion). He pointed out that the alien would remain “in the custody and control of the law while lawfully on bail.” Ibid. He added that it “would be a great hardship, not to say a gross violation of her personal rights,” to refuse bail for 15 days before her ship arrived as long as she could provide “security satisfactory to the court” that she would indeed depart when it did. Id., at 809–810. Two other Circuit Judges noted their agreement with Judge Sawyer. Id., at 809, n. 1. But they did not participate in the case, ibid., the two participating judges split 1 to 1, and so the views of presiding Justice Field prevailed. The alien appealed to this Court, Cheong Ah Moy v. United States, 113 U. S. 216 (1885), but before this Court could decide, the ship departed with Cheong Ah Moy aboard.
2. In Wong Wing v. United States, 163 U. S. 228 (1896), the Court struck down as unconstitutional a statute that said alien Chinese laborers should be “imprisoned at hard labor” for up to a year before being deported. Id., at 235. In doing so, the Court wrote that although a sentence to hard labor was unlawful, “detention, or temporary confinement,” was constitutional, because “[d]etention is a usual feature of every case of arrest on a criminal charge, even when an innocent person is wrongfully accused.” Ibid. But an analogy to criminal detention is an analogy to instances in which bail hearings are required.
3. In Tod v. Waldman, 266 U. S. 113 (1924), the Waldman family, like many of the respondents here, challenged their exclusion. They had arrived at Ellis Island fleeing

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religious persecution in Ukraine. They were detained because the immigration inspector believed the mother illiterate, one of the daughters disabled, and the whole family likely to become public charges. They appealed to the Labor Department, which ordered Mrs. Waldman retested for literacy, requiring her to read both Yiddish and Hebrew. She could not. She then petitioned for a writ of habeas corpus on the grounds that (1) as a religious refugee she was exempt from the literacy requirement; (2) in any event, she need read only one language, not two; (3) her daughter was not disabled; and (4) the Department of Labor should have allowed her to appeal administratively. Id., at 114–115.
The relevant statutory provisions, just like the present statute, see infra, at 20, 29, said that an arriving person, unless “clearly and beyond a doubt entitled” to land, “shall be detained for examination . . . by a board of special inquiry.” Act of Feb. 5, 1917, §16, 39 Stat. 886 (emphasis added). By the time the case reached this Court, however, the family had been allowed bail. See Waldman, 266 U. S., at 117. This Court ordered the Department of Labor to provide the family with an administrative appeal. Then, after initially “remand[ing] the petitioners to the custody of immigration authorities” pending the outcome of the appeal, id., at 120, the Court clarified in a rehearing order that “[n]othing in the order of this Court shall prejudice an application for release on bail of the respondents pending compliance with the mandate of this Court.” Tod v. Waldman, 266 U. S. 547, 548 (1925). This statement is inconsistent with the earlier opinion of Justice Field, sitting as a Circuit Judge, because it shows that even an alien challenging her exclusion could be released on bail. Supra, at 14.
4. In Carlson v. Landon, 342 U. S. 524 (1952), this Court upheld the denial of bail to noncitizen Communists being held pending deportation, despite a statute that permitted

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bail proceedings. Id., at 541–546. It did so because it considered the individuals to be a risk to security. It said nothing to suggest that bail proceedings were unnecessary.
5. In Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206 (1953), the Attorney General had ordered a noncitizen permanently excluded from the United States on the ground that his “entry would be prejudicial to the public interest for security reasons.” Id., at 208; see Subversive Activities Control Act of 1950, §§22–23, 64 Stat. 1006–1012. He “sat on Ellis Island because this country shut him out and others were unwilling to take him in.” 345 U. S., at 209. After 21 months in confinement he filed a petition for a writ of habeas corpus seeking judicial review of the exclusion decision or release on bail until he could be removed to another country. Id., at 207, 209. This Court refused to review the exclusion decision on the ground that the security matter fell totally within the President’s authority, pursuant to an express congressional delegation of power. Id., at 210. The Court also denied Mezei a bail proceeding because in an “exclusion proceeding grounded on danger to the national security . . . neither the rationale nor the statutory authority for” release on bail exists. Id., at 216. It denied bail, however, after the Attorney General had already found, on an individualized basis, not only that Mezei was a security risk and consequently not entitled to either admission or bail, but also that he could be denied a hearing on the matter because the basis for that decision could not be disclosed without harm to national security. Id., at 208–209. The respondents in this case have been the subject of no such individualized findings. And unlike Mezei, who was requesting bail after his exclusion proceedings had ended (while the Attorney General searched for a country that would take him—a matter that we again confronted in Zadvydas), the respondents here continue to litigate the

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lawfulness of their exclusion itself. Thus, Mezei, but not the respondents here, was in a sense in the position of a convicted criminal who had lost his appeal, not a criminal awaiting trial (or the results of an appeal).
6. Zadvydas v. Davis, 533 U. S. 678 (2001), concerned a noncitizen who had lawfully resided in this country, committed a serious crime, completed his prison sentence, and was then ordered deported. Id., at 684. Zadvydas sought release on bail during the time the Government searched for a country that would take him. Id., at 684–685. The governing statute said an alien such as Zadvydas “may be detained” pending his removal to another country. 8 U. S. C. §1231(a)(6). We interpreted those words as requiring release from detention once it became clear that there was “no significant likelihood of removal in the reasonably foreseeable future”—presumptively after a period of confinement of six months. 533 U. S., at 701. We read the statute as requiring this release because a “statute permitting indefinite detention of an alien would raise a serious constitutional problem.” Id., at 690.
From a constitutional perspective, this case follows a fortiori from Zadvydas. Here only a bail hearing is at issue, not release on bail, much less permanent release. And here there has been no final determination that any of the respondents lacks a legal right to stay in the United States—the bail hearing at issue concerns conditional release pending that final determination. It is immaterial that detention here is not literally indefinite, because while the respondents’ removal proceedings must end eventually, they last an indeterminate period of at least six months and a year on average, thereby implicating the same constitutional right against prolonged arbitrary detention that we recognized in Zadvydas.
7. In Demore v. Kim, 538 U. S. 510 (2003), we held that the Government could constitutionally hold without bail noncitizens who had committed certain crimes, had com-

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pleted their sentences, and were in removal proceedings. See §1226(c). But we based our holding on the short-term nature of the confinement necessary to complete proceedings. See id., at 529–530. The Court wrote that the “detention at stake . . . lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal.” Id., at 530. We added:
“[I]n 85% of the cases in which aliens are detained [pursuant to the relevant statute], removal proceedings are completed in an average time of 47 days and a median of 30 days. In the remaining 15% of cases, in which the alien appeals the decision of the immigration judge to the Board of Immigration Appeals, appeal takes an average of four months, with a median time that is slightly shorter.” Id., at 529 (citation omitted).
Demore himself, an outlier, was detained for six months. Id., at 530–531.
The Court then found detention constitutional “during the limited period” necessary to arrange for removal, and we contrasted that period of detention with the detention at issue in Zadvydas, referring to the detention in Demore as being “of a much shorter duration.” 538 U. S., at 526, 528. JUSTICE KENNEDY stated in a concurrence that the Due Process Clause might require bail hearings “if the continued detention became unreasonable or unjustified.” Id., at 532. Dissenting, I wrote that, had I believed that Demore “had conceded that he [was] deportable,” then, despite Zadvydas, “I would conclude that the Government could detain him without bail for the few weeks ordinarily necessary for formal entry of a removal order.” 538 U. S., at 576 (opinion concurring in part and dissenting in part).
The Government now tells us that the statistics it gave to the Court in Demore were wrong. Detention normally

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lasts twice as long as the Government then said it did. And, as I have pointed out, thousands of people here are held for considerably longer than six months without an opportunity to seek bail. See supra, at 3. We deal here with prolonged detention, not the short-term detention at issue in Demore. Hence Demore, itself a deviation from the history and tradition of bail and alien detention, cannot help the Government.
The upshot is the following: The Constitution’s language, its basic purposes, the relevant history, our tradition, and many of the relevant cases point in the same interpretive direction. They tell us that an interpretation of the statute before us that would deny bail proceedings where detention is prolonged would likely mean that the statute violates the Constitution. The interpretive principle that flows from this conclusion is clear and longstanding: “ ‘[A]s between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.’ ” Rust v. Sullivan, 500 U. S. 173, 190 (1991) (quoting Blodgett v. Holden, 275 U. S. 142, 148 (1927) (opinion of Holmes, J.)). Moreover, a “statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.” Jin Fuey Moy, 241 U. S., at 401. These legal principles reflect a realistic assumption, namely, that Congress—particularly a Congress that did not consider a constitutional matter—would normally have preferred a constitutional interpretation to an interpretation that may render a statute an unconstitutional nullity. And that is so even where the constitutional interpretation departs from the most natural reading of the statute’s language. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988); see also National Federation of Independent Business v. Sebelius, 567 U. S. 519, 563, 574–576 (2012)

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(majority opinion and opinion of ROBERTS, C. J.).
III The Statutory Provisions
The question remains whether it is possible to read the statute as authorizing bail. As desirable as a constitutional interpretation of a statute may be, we cannot read it to say the opposite of what its language states. The word “animal” does not include minerals, no matter how strongly one might wish that it did. Indeed, where “ ‘Congress has made its intent in the statute clear, we must give effect to that intent,’ ” even if doing so requires us to consider the constitutional question, and even if doing so means that we hold the statute unconstitutional. Zadvydas, 533 U. S., at 696 (quoting Miller v. French, 530 U. S. 327, 336 (2000)). In my view, however, we can, and should, read the relevant statutory provisions to require bail proceedings in instances of prolonged detention without doing violence to the statutory language or to the provisions’ basic purposes.
A Asylum Seekers
The relevant provision governing the first class of noncitizens, the asylum seekers, is §1225(b)(1)(B)(ii). It says that, if an immigration “officer determines at the time” of an initial interview with an alien seeking to enter the United States “that [the] alien has a credible fear of persecution . . . , the alien shall be detained for further consideration of the application for asylum.” See Appendix A–1, infra. I have emphasized the three key words, namely, “shall be detained.” Do those words mean that the asylum seeker must be detained without bail?
They do not. First, in ordinary English and in light of the history of bail, the word “detain” is ambiguous in respect to the relevant point. The Oxford English Diction-

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ary (OED), surveying the history of the word, notes that Edward Hall, a famous 16th-century legal scholar and author of Hall’s Chronicle, wrote: “A traytor . . . is apprehended and deteigned in prisone for his offence,” a use of the word, as we know from Blackstone, that is consistent with bail. See supra, at 8–9; OED (3d ed., Dec. 2012), http://www.oed.com/view/Entry/51176 (annot. to def. 1). David Hume, the famous 18th-century historian and philosopher, writes of being “detained in strict confinement,” thereby implying the existence of detention without strict confinement. Ibid. A 19th-century novelist writes, “ ‘Beg your pardon, sir,’ said the constable, . . . ‘I shall be obliged to detain you till this business is settled’ ”—again a use of “detain” that we know (from Blackstone) is consistent with bail. Ibid. And the OED concludes that the primary meaning of “detain” is “[t]o keep in confinement or under restraint; to keep prisoner.” Ibid. (emphasis added). To grant bail, we know, is not to grant unrestrained freedom. Rather, where the Act elsewhere expressly permits bail, it requires “bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General.” 8 U. S. C. §1226(a)(2)(A). Similarly in the criminal context, bail imposes numerous restraints, ranging from the provision of a bond, to restrictions on residences and travel, to the imposition of a curfew, to a requirement to obtain medical treatment, to report at regular intervals, or even to return to custody at specified hours. See 18 U. S. C. §3142(c)(1)(B) (listing possible conditions for the pretrial release of federal criminal defendants).
At the very least, because the word “detain” in this context refers to a comparatively long period of time, it can readily coexist with a word such as “bail” that refers to a shorter period of conditional release. For instance, there is nothing inconsistent in saying: During his exile, he was permitted to pay short visits to his home country; during

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the period of active hostilities, the soldiers would lay down their arms and fraternize on Christmas Day; during his overseas detention, he was allowed home to see his sick mother; or during his detention pending proceedings, he was permitted bail.
Second, our precedent treats the statutory word “detain” as consistent with bail. In Waldman, 266 U. S. 547, we considered an immigration statute that stated (in respect to arriving aliens) that “[e]very alien who may not appear to the examining inspector at the port of arrival to be clearly and beyond a doubt entitled to land shall be detained for examination in relation thereto by a board of special inquiry.” Act of Feb. 5, 1917, §16, 39 Stat. 886 (emphasis added). The Court indicated that bail was available, stating that “[n]othing in the order of this court shall prejudice an application for release on bail.” 266 U. S., at 548. In so stating, the Court was simply following precedent, such as Wright v. Henkel, where the Court wrote that bail is available even where not “specifically vested by statute.” 190 U. S., at 63; see supra, at 11–12. When Congress passed the relevant provisions of the Act in 1996, it legislated against this historical backdrop, at a time when the precise language that it adopted had been interpreted by this Court to permit bail. See Monessen Southwestern R. Co. v. Morgan, 486 U. S. 330, 338 (1988) (“Congress’ failure to disturb a consistent judicial interpretation of a statute may provide some indication that ‘Congress at least acquiesces in, and apparently affirms, that [interpretation]’ ” (quoting Cannon v. University of Chicago, 441 U. S. 677, 703 (1979))).
Third, the Board of Immigration Appeals reads the word “detain” as consistent with bail, for it has held that its regulations, implementing the same statutory provision as is before us, allow bail for asylum seekers who are apprehended inside the United States within 100 miles of the border, rather than at a border crossing. See In re X-K-,

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23 I. & N. Dec., at 732, 734–735 (discussing 8 CFR §1003.19(h)(2)(i) (2004)). The same statute, same language applies to the detention of those asylum seekers and the ones before us, so the statute must be consistent with bail in the Board of Immigration Appeals’ view.
Fourth, in Zadvydas we found (to avoid similar constitutional questions) that the words “ ‘may be detained’ ” were consistent with requiring release from long-term detention. 533 U. S., at 682 (quoting 8 U. S. C. §1231(a)(6)). The majority correctly notes that here the language substitutes the word “shall” for the word “may.” Ante, at 14– 16. But the majority is wrong to distinguish Zadvydas on this basis. There the Court did not emphasize the word “detain,” for the question at issue was release from detention. And the key word was consequently “may,” suggesting discretion. Here the question concerns the right to a bail hearing during detention. And the key linguistic ambiguity concerns the word “detention.” Is that word consistent with bail proceedings? The answer, for the reasons I have stated, is “yes.”
Fifth, the statute does not even mention long-term detention without bail. Whether the statute speaks in terms of discretion (“may,” as in Zadvydas) or mandatory action (“shall,” as in this case), the Government’s argument is wrong for the same reason: Congress does not unambiguously authorize long-term detention without bail by failing to say when detention must end. As we recognized in Zadvydas, Congress anticipated long-term detention elsewhere in the Act, providing for review every six months of terrorist aliens detained under 8 U. S. C. §1537(b)(2)(C), but it did not do so here. See 533 U. S., at 697.
Sixth, the Act provides that an asylum applicant whose proceedings last longer than six months may be given work authorization. §1158(d)(2). The majority would apply this provision to some asylum applicants but not the

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ones before us. Ante, at 26, n. 6. Of course, the statute does not contain that limitation. Read most naturally, the provision offers some indication that Congress, in the same statute, did not require asylum seekers to remain confined without bail at the 6-month mark.
Seventh, there is a separate statutory provision that purports to do precisely what the majority says this one does, providing that certain aliens “shall be detained . . . until removed.” §1225(b)(1)(B)(iii)(IV) (emphasis added); ante, at 16 (detention must continue until proceedings “have finished”). The problem for the majority is that this other provision applies only to those who, unlike the respondents, have no credible fear of persecution. The provision that applies here lacks similar language.
Linguistic ambiguity, while necessary, is not sufficient. I would also ask whether the statute’s purposes suggest a congressional refusal to permit bail where confinement is prolonged. The answer is “no.” There is nothing in the statute or in the legislative history that reveals any such congressional intent. The most likely reason for its absence is that Congress, like the Government when it appeared before us in Demore, believed there were no such instances, or at least that there were very few. Indeed, the Act suggests that asylum proceedings ordinarily finish quickly. See §1158(d)(5)(A) (providing that absent “exceptional circumstances,” final administrative adjudication (not including appeal) must be completed “within 180 days,” and any appeal must be filed “within 30 days” of the decision). And for those proceedings that last longer than six months, we know that two-thirds of asylum seekers win their cases. Thus, legislative silence suggests not disapproval of bail, but a lack of consideration of the matter. For present purposes that is sufficient. It means that Congress did not intend to forbid bail. An interpretation that permits bail—based upon history, tradition, statutory context, and precedent—is consistent, not inconsistent,

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with what Congress intended the statutory provision to do.
The majority apparently finds a contrary purpose in the fact that other provisions of the statute permit the Attorney General to release an alien on parole “ ‘for urgent humanitarian reasons or significant public benefit’ ” and impose bail-like conditions. Ante, at 16–17 (discussing 8 U. S. C. §1182(d)(5)(A)). Yet under the majority’s interpretation of “detain,” the same argument could have been made in Zadvydas. We held that noncitizens presumptively are entitled to release after six months of detention, notwithstanding an available alternative avenue for relief, namely, bail. 533 U. S., at 683. There is no reason to reach a different result here. While the Government historically used this provision to take account of traditional bail factors (flight risk, safety risk), the President since issued an Executive Order directing parole to be granted “in all circumstances only when an individual demonstrates urgent humanitarian reasons or a significant public benefit.” Exec. Order. No. 13767, 82 Fed. Reg. 8793 (2017). And besides, Congress’ provision of parole to permit, for example, release for the purpose of medical care or to testify in a court proceeding—which adds to the circumstances under which a noncitizen can be released from confinement—says nothing about whether Congress intended to cut back on those circumstances in respect to the meaning of “detain” and the historical understanding that detention permits bail.
B Criminals Who Have Served Their Sentences
The relevant statutory provision, §1226(c), says in paragraph (1) that the “Attorney General shall take into custody any alien who . . . is deportable [or inadmissible] by reason of having committed [certain crimes] when the alien is released,” presumably (or ordinarily) after having

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served his sentence. It then goes on to say, in paragraph (2), that the “Attorney General may release [that] alien . . . only if the Attorney General decides pursuant to section 3521 of title 18 that release of the alien from custody is necessary to provide protection to a witness [or to certain related others].” See Appendix A–2, infra.
I have emphasized the relevant phrases: “take into custody” in the first paragraph, and “may release [that] alien . . . only if ” in the second paragraph. We have long interpreted “in custody” as “not requir[ing] that a prisoner be physically confined.” Maleng v. Cook, 490 U. S. 488, 491 (1989) (per curiam). In the habeas context, we have held that “a person released on bail or on his own recognizance” is “ ‘in custody’ within the meaning of the statute.” Hensley v. Municipal Court, San Jose-Milpitas Judicial Dist., Santa Clara Cty., 411 U. S. 345, 349 (1973); Justices of Boston Municipal Court v. Lydon, 466 U. S. 294, 300– 301 (1984) (same). The reason is simple, as I already have explained, supra, at 21: A person who is released on bail “is subject to restraints ‘not shared by the public generally.’ ” Hensley, supra, at 351 (quoting Jones v. Cunningham, 371 U. S. 236, 240 (1963)); see also Maleng, supra, at 491 (“[A] prisoner who had been placed on parole was still ‘in custody’ ” because his “release from physical confinement . . . was not unconditional; instead, it was explicitly conditioned on his reporting regularly to his parole officer, remaining in a particular community, residence, and job, and refraining from certain activities” (citing Jones, supra, at 242)).
Moreover, there is no reason to interpret “custody” differently than “detain.” The OED defines “custody” as “[t]he state of being detained,” http://www.oed.com/view/ Entry/46305 (def. 5). “Detained,” as I have previously pointed out, can be read consistently with bail. See supra, at 20–23. The OED also defines the statutory phrase, “take (a person) into custody,” as “to arrest and imprison

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(a person),” http://www.oed.com/view/Entry/46305 (def. 5). And we know from the history, tradition, case law, and other sources earlier discussed, including Blackstone, that arresting and imprisoning a person is consistent with a bail hearing and a subsequent grant of bail, even where a statute contains words such as “commitment” or “detain.” See supra, at 5–19 (citing, e.g., Wright, 190 U. S., at 62 (reading as consistent with a bail proceeding the statutory language “ ‘shall issue [a] warrant for the commitment . . . to the proper jail, there to remain’ ” until “ ‘surrender’ ” for extradition)).
But what about the second phrase, stating that the Attorney General “may release [that] alien . . . only if the Attorney General decides pursuant to section 3521 of title 18 that release of the alien from custody is necessary to provide protection to a witness”? Does the presence of the words “only if ” show that the statute automatically denies bail for any other reason?
It does not. That is because the phrase has nothing to do with bail. It has to do with a special program, the Witness Protection Program, set forth in 18 U. S. C. §3521. That program allows the Attorney General to relocate the witness, to give him an entirely new identity, to help his family similarly, and to pay him a stipend, among other things. §§3521(a)(1), (b)(1). The Attorney General may “take such action as [he] determines to be necessary to protect the person,” presumably even free the witness from whatever obligations might require him to report to an immigration or judicial authority. §3521(b)(1). Accordingly, when the Attorney General “release[s]” an alien under 8 U. S. C. §1226(c)(2), he does not grant bail; he may well do far more, freeing the witness from a host of obligations and restraints, including those many obligations and restraints that accompany bail. See supra, at 21.
This understanding of “release” in §1226(c) is consistent

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with the OED’s definition of “release” as “to free from restraint” or even “to liberate from . . . an obligation” (not simply “to free from . . . captivity”), http://www.oed.com/ view/Entry/161859 (def. 6(a)). And it is consistent with our earlier reading of the word “detain.” Supra, at 20–24. Following the OED’s definition of “detain” as “under restraint,” we have understood the word “detention” to include the state of being “under” those “restraints” that typically accompany bail. Supra, at 20–24. That is to say, both the individual on bail and the individual not on bail are “detained”; and the Attorney General, through his Witness Protection Program powers can free the individual from both. To repeat: The provision at issue means that the Attorney General “may release” the detained person from the restraints that accompany detainment—whether that individual has been detained with, or without, bail.
So understood the phrase has nothing to do with the issue before us: whether a confined individual is, or is not, entitled to bail or a bail hearing. It simply means that the Attorney General cannot free that person from all, or most, restraining conditions (including those that accompany bail) unless the alien is placed in the Witness Protection Program. So read, the words “only if ” neither favor nor disfavor a reading of the statute consistent with the right to a bail proceeding.
The purpose-related reasons that argue for a bailfavorable reading are also applicable here. Congress did not consider the problem of long-term detention. It wrote the statute with brief detention in mind. See H. R. Rep. No. 104–469, pt. 1, p. 123, and n. 25 (1996) (stating that the “average stay [was] 28 days”). Congress did not know (for apparently the Government did not know in Demore) that the average length of detention for this class would turn out to be about a year. Nor did Congress necessarily know that about 40% of class members eventually obtain the right to remain in the United States.

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I should add that reading the statute as denying bail to those whose detention is prolonged is anomalous. Those whose removal is legally or factually questionable could be imprisoned indefinitely while the matter is being decided. Those whose removal is not questionable (for they are under a final removal order) could be further imprisoned for no more than six months. See supra, at 4, 17. In fact, even before our decision in Zadvydas, the Government gave bail hearings to noncitizens under a final order of removal after six months of detention. See 533 U. S., at 683.
C Other Applicants for Admission
The statutory provision that governs the third category of noncitizens seeking admission at the border is §1225(b)(2)(A). It says that “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.” See Appendix A–3, infra.
The Government tells us that this miscellaneous category consists of persons who are neither (1) clearly eligible for admission, nor (2) clearly ineligible. Pet. for Cert. 3–4. A clearly eligible person is, of course, immediately admitted. A clearly ineligible person—someone who lacks the required documents, or provides fraudulent ones—is “removed . . . without further hearing or review.” §1225(b)(1)(A)(i); see §§1182(a)(6)(C), (a)(7). But where the matter is not clear, i.e., where the immigration officer determines that an alien “is not clearly and beyond a doubt entitled to be admitted,” he is detained for a removal proceeding. §1225(b)(2)(A). Like all respondents, this class has been detained for at least six months. It may include persons returning to the United States who have work permits or other documents seemingly entitling

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them to entry, but whom an immigration officer suspects are inadmissible for some other reason, such as because they may have incomplete vaccinations or have committed student visa abuse or a crime of “moral turpitude.” See §1182(a) (delineating classes of aliens ineligible for admission). For instance, the Federal Register is replete with examples of offenses that immigration authorities have thought are crimes of moral turpitude but that the courts of appeals later determine are not. See, e.g., Goldeshtein v. INS, 8 F. 3d 645, 648 (CA9 1993) (structuring financial transactions to avoid currency reports); Nunez v. Holder, 594 F. 3d 1124, 1138 (CA9 2010) (indecent exposure). It also may include individuals who claim citizenship by virtue of birth or parentage but who lack documents clearly proving their claim.
The critical statutory words are the same as those I have just discussed in the context of the asylum seekers— “shall be detained.” There is no more plausible reason here than there was there to believe those words foreclose bail. See supra, at 20–24. The constitutional considerations, the statutory language, and the purposes underlying the statute are virtually the same. Thus, the result should be the same: Given the constitutional considerations, we should interpret the statute as permitting bail.
IV
The majority concludes in Part V, ante, at 29–31, by saying that, before considering bail-related constitutional arguments, the lower courts “should reexamine whether respondents can continue litigating their claims as a class.” Ante, at 29. Relying on dicta in Reno v. AmericanArab Anti-Discrimination Comm., 525 U. S. 471 (1999) (AADC), it then suggests that the respondents may not be able to continue litigating because the Act says that
“no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the oper-

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ation [of the statutory provisions here at issue] other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.” 8 U. S. C. §1252(f )(1).
Were the majority’s suggestion correct as to this jurisdictional question, it would have shown, at most, that we should decide the constitutional question here and now. We have already asked for and received briefs on that question. But I do not believe the majority is correct. Every member of the classes before us falls within the provision’s exception. Every one of them is an “individual alien against whom proceedings under such part have been initiated.” Ibid. The Court in AADC did not consider, and had no reason to consider, the application of §1252(f)(1) to such a class. Regardless, a court could order declaratory relief. Federal Rule of Civil Procedure 23(b)(2) permits a class action where “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” (Emphasis added.) And the Advisory Committee says that declaratory relief can fall within the Rule’s term “corresponding” if it “serves as a basis for later injunctive relief.” Notes on Rule 23(b)(2)–1966 Amendment, 28 U. S. C. App., p. 812.
Jurisdiction also is unaffected by 8 U. S. C. §1252(b)(9), which by its terms applies only “[w]ith respect to review of an order of removal under [§1252(a)(1)].” §1252(b). Respondents challenge their detention without bail, not an order of removal.
Neither does Wal-Mart Stores, Inc. v. Dukes, 564 U. S. 338 (2011), bar these class actions. Every member of each class seeks the same relief (a bail hearing), every member has been denied that relief, and the differences in situation among members of the class are not relevant to their entitlement to a bail hearing.

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At a minimum I can find nothing in the statute or in the cases to which the majority refers that would prevent the respondents from pursuing their action, obtaining a declaratory judgment, and then using that judgment to obtain relief, namely, a bail hearing, in an individual case. Thus, I believe the lower courts are free to consider the constitutionality of the relevant statutory provisions as the majority now interprets them.
V Conclusion
The relevant constitutional language, purposes, history, traditions, context, and case law, taken together, make it likely that, where confinement of the noncitizens before us is prolonged (presumptively longer than six months), bail proceedings are constitutionally required. Given this serious constitutional problem, I would interpret the statutory provisions before us as authorizing bail. Their language permits that reading, it furthers their basic purposes, and it is consistent with the history, tradition, and constitutional values associated with bail proceedings. I believe that those bail proceedings should take place in accordance with customary rules of procedure and burdens of proof rather than the special rules that the Ninth Circuit imposed.
The bail questions before us are technical but at heart they are simple. We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have “certain unalienable Rights,” and that among them is the right to “Liberty.” We need merely remember that the Constitution’s Due Process Clause protects each person’s liberty from arbitrary deprivation. And we need just keep in mind the fact that, since Blackstone’s time and long before, liberty has included the right of a confined person to seek release on bail. It is neither technical nor unusually difficult to read

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the words of these statutes as consistent with this basic right. I would find it far more difficult, indeed, I would find it alarming, to believe that Congress wrote these statutory words in order to put thousands of individuals at risk of lengthy confinement all within the United States but all without hope of bail. I would read the statutory words as consistent with, indeed as requiring protection of, the basic right to seek bail.
Because the majority does not do so, with respect, I dissent.

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Appendix A to opinion of BREYER, J.
APPENDIXES A 1

Statute Applicable to Asylum Seekers

8 U. S. C. §1225. “Inspection by immigration officers;

expedited removal of inadmissible arriving aliens; referral

for hearing

.

.

.

.

.

“(b) Inspection of applicants for admission

“(1) Inspection of aliens arriving in the United States

and certain other aliens who have not been admitted or

paroled

“(A) Screening

“(i) In general

“If an immigration officer determines that an alien

(other than an alien described in subparagraph (F)) who is

arriving in the United States or is described in clause (iii)

is inadmissible under section 1182(a)(6)(C) or 1182(a)(7)

of this title, the officer shall order the alien removed

from the United States without further hearing or review

unless the alien indicates either an intention to apply

for asylum under section 1158 of this title or a fear of

persecution.

“(ii) Claims for asylum

“If an immigration officer determines that an alien

(other than an alien described in subparagraph (F)) who is

arriving in the United States or is described in clause (iii)

is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of

this title and the alien indicates either an intention to

apply for asylum under section 1158 of this title or a fear

of persecution, the officer shall refer the alien for an inter-

view by an asylum officer under subparagraph (B).

.

.

.

.

.

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Appendix A to opinion of BREYER, J.
“(B) Asylum interviews “(i) Conduct by asylum officers “An asylum officer shall conduct interviews of aliens referred under subparagraph (A)(ii), either at a port of entry or at such other place designated by the Attorney General. “(ii) Referral of certain aliens “If the officer determines at the time of the interview that an alien has a credible fear of persecution (within the meaning of clause (v)), the alien shall be detained for further consideration of the application for asylum.” (Emphasis added.)

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Appendix A to opinion of BREYER, J.
2

Statute Applicable to Criminal Aliens

8 U. S. C. §1226. “Apprehension and detention of aliens

“(a) Arrest, detention, and release

“On a warrant issued by the Attorney General, an alien

may be arrested and detained pending a decision on

whether the alien is to be removed from the United States.

Except as provided in subsection (c) of this section and

pending such decision, the Attorney General—

“(1) may continue to detain the arrested alien; and

“(2) may release the alien on—

“(A) bond of at least $1,500 with security approved by,

and containing conditions prescribed by, the Attorney

General; or

“(B) conditional parole;

.

.

.

.

.

“(c) Detention of criminal aliens “(1) Custody “The Attorney General shall take into custody any alien
who— “(A) is inadmissible by reason of having committed any
offense covered in section 1182(a)(2) of this title, “(B) is deportable by reason of having committed any
offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
“(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence[d] to a term of imprisonment of at least 1 year, or
“(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title, “when the alien is released, without regard to whether the alien is released on parole, supervised release, or pro-

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Appendix A to opinion of BREYER, J.
bation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.
“(2) Release “The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to section 3521 of title 18 that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.” (Emphasis added.)

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Appendix A to opinion of BREYER, J.
3

Statute Applicable to Miscellaneous Applicants for Admission

8 U. S. C. §1225. “Inspection by immigration officers;

expedited removal of inadmissible arriving aliens; referral

for hearing

.

.

.

.

.

“(b) Inspection of applicants for admission

.

.

.

.

.

“(2) Inspection of other aliens “(A) In general “Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title. “(B) Exception “Subparagraph (A) shall not apply to an alien— “(i) who is a crewman, “(ii) to whom paragraph (1) applies, or “(iii) who is a stowaway. “(C) Treatment of aliens arriving from contiguous territory “In the case of an alien described in subparagraph (A) who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 1229a of this title.” (Emphasis added.)

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Appendix B to opinion of BREYER, J.
B

State Bail Law

State Alabama
Alaska Arizona
Arkansas
California Colorado Connecticut Delaware Florida Georgia

Key Bail Provisions Ala. Const., Art. 1, §16; Ala. Code §§15–13–3, 15–13–108, 15–13–190 (2011); Ala. Rule Crim. Proc. 7.2 (Cum. Supp. 2017) Alaska Const., Art. 1, §11; Alaska Stat. §§12.30.011, 12.30.040 (2016) Ariz. Const., Art. 2, §22; Ariz. Rev. Stat. Ann. §§13–3961 (Cum. Supp. 2017), 13–3961.01 (2010), 13–3962; Ariz. Rule Crim. Proc. 7.2 (Cum. Supp. 2017) Ark. Const., Art. 2, §8; Ark. Code §§16–84–110 (2005), 16–91–110 (Supp. 2017); Ark. Rule App. Crim. Proc. 6 (2017) Cal. Const., Art. 1, §12; Cal. Penal Code Ann. §1271 (West 2004) Colo. Const., Art. 2, §19; Colo. Rev. Stat. §§16–4–101, 16–4–102, 16–4– 201, 16–4–201.5 (2017) Conn. Const., Art. 1, §8; Conn. Gen. Stat. §§54–63f, 54–64a (2017) Del. Const., Art. 1, §12; Del. Code Ann., Tit. 11, §§2103, 2104, 2112 (2015) Fla. Const., Art. 1, §14; Fla. Stat. §§903.046, 903.132, 903.133 (2017) Ga. Code Ann. §§17–6–1, 17–6–15 (Supp. 2017)

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Appendix B to opinion of BREYER, J.

State Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky
Louisiana Maine
Maryland Massachusetts

Key Bail Provisions Haw. Rev. Stat. §§804–3, 804–4 (2014) Idaho Const., Art. 1, §6; Idaho Code Ann. §19–2903 (2017) Ill. Const., Art. 1, §9; Ill. Comp. Stat., ch. 725, §§5110–4, 5110–6.2 (West 2016) Ind. Const., Art. 1, §17; Ann. Ind. Code §§35–33–8.5–6 (West 2012), 35–33–9–1 (West Cum. Supp. 2017) Iowa Const., Art. 1, §12; Iowa Code Ann. §§811.1, 811.5 (West 2015) Kan. Const., Bill of Rights §9; Kan. Stat. Ann. §§22–2801, 22–2804 (2007), 22–2802 (2016 Cum. Supp.) Ky. Const., §16; Ky. Rev. Stat. Ann. §431.066 (West Cum. Supp. 2017); Ky. Rules Crim. Proc. 4.02, 4.54, 12.78 (West Cum. Supp. 2017) La. Const., Art. 1, §18; La. Code Crim. Proc. Ann., Art. 312, 316 (West 2017) Me. Const., Art. 1, §10; Me. Rev. Stat. Ann., Tit. 15, §§1003, 1051 (Cum. Supp. 2017), 1026, 1027 (2016) Md. Crim. Proc. Code Ann. §§5–101, 5–102 (Supp. 2017), 5–207 (2008); Md. Rules 4–216.1, 4–349 (2018) Mass. Gen. Laws, ch. 276, §§20D, 42, 42A (2016); Mass. Rule Crim. Proc. 31 (West 2017)

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Appendix B to opinion of BREYER, J.

State Michigan Minnesota Mississippi Missouri
Montana Nebraska Nevada New Hampshire New Jersey
New Mexico

Key Bail Provisions Mich. Comp. Laws Ann. §§765.6 (West Supp. 2017), 770.9 (West 2006) Minn. Const., Art. 1, §7; Minn. Stat. §629.16 (2016); Minn. Rules Crim. Proc. 6, 28.02 (2016) Miss. Const., Art. 32, §29; Miss. Code Ann. §§99–5–11, 99–35–3. (2015) Mo. Const., Art. 1, §§20, 34; Mo. Ann. Rev. Stat. §§544.455, 544. 671 (Vernon Cum. Supp. 2017), 544.457, 547.170 (Vernon 2002) Mont. Const., Art. 2, §21; Mont. Code Ann. §§46–9–102, 46–9–107 (2017) Neb. Const., Art. 1, §9; Neb. Rev. Stat. §§29–901 (2017 Supp.), 29– 2301 (2016) Nev. Const., Art. 1, §7; Nev. Rev. Stat. §§178.484, 178.488 (2015) N. H. Rev. Stat. Ann. §§597:1 (2001), 597:1–a (Cum. Supp. 2017), 597:1–c, 597:2 N. J. Const., Art. 1, §11; N. J. Stat. Ann. §§2A:162–11 (West 2011), 162–18 (West Cum. Supp. 2017), 2A:162–20; N. J. Rule App. Proc. 2:9–4 (West 2018) N. M. Const., Art. 2, §13; N. M. Dist. Ct. Rules Crim. Proc. 5–401, 5–402 (1992)

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Appendix B to opinion of BREYER, J.

State New York North Carolina North Dakota Ohio
Oklahoma Oregon Pennsylvania Rhode Island
South Carolina South Dakota
Tennessee

Key Bail Provisions N. Y. Crim. Proc. Law Ann. §§510.20, 530.10 (West 2009), 510.30 (West Cum. Supp. 2018) N. C. Gen. Stat. Ann. §§15A–533, 15A–534 (2017) N. D. Const., Art. 1, §11; N. D. Rule Crim. Proc. 46 (2016–2017) Ohio Const., Art. I, §9; Ohio Rev. Code Ann. §§2937.222, 2949.02 (Lexis 2014); Ohio Rule Crim. Proc. 46 (Lexis 2017–2018) Okla. Const., Art. 2, §8; Okla. Stat., Tit. 22, §§1077, 1101, 1102 (2011) Ore. Const., Art. 1, §§14, 43; Ore. Rev. Stat. §§135.240, 138.650 (2015) Pa. Const., Art. 1, §14; 42 Pa. Cons. Stat. §5701 (2015); Pa. Rule Crim. Proc. 521 (West 2017) R. I. Const., Art. 1, §9; R. I. Gen. Laws §§12–13–1, 12–22–12 (2002); R. I. Super. Ct. Rule Crim. Proc. 46 (Supp. 2017) S. C. Const., Art. 1, §15; S. C. Code Ann. §§17–15–10, 22–5–510 (Cum. Supp. 2017), 18–1–90 (2014) S. D. Const., Art. 6, §8; S. D. Codified Laws §§23A–43–2, 23A–43–2.1, 23A–43–16 (2016), 23A–43–3, 23A– 43–4 (Cum. Supp. 2017) Tenn. Const., Art. 1, §15; Tenn. Code Ann. §§40–11–102, 40–11– 105, 40–11–113 (2012)

Case 2:07-cv-03239-TJH-RNB Document 479 Filed 02/27/18 Page 92 of 92 Page ID #:9831

Cite as: 583 U. S. ____ (2018)

43

Appendix B to opinion of BREYER, J.

State Texas
Utah Vermont
Virginia Washington
West Virginia Wisconsin
Wyoming

Key Bail Provisions Tex. Const., Art. 1, §§11, 11a, 11b, 11c; Tex. Code Crim. Proc. Ann., Art. 17.15, 17.40 (Vernon 2015), 44.04 (Vernon Cum. Supp. 2017) Utah Const., Art. 1, §8; Utah Code §§77–20–1, 77–20–10 (2017) Vt. Const., ch. 2, §40; Vt. Stat. Ann., Tit. 13, §§7553, 7574 (2009), 7553a, 7554 (2017 Cum. Supp.) Va. Code Ann. §§19.2–120, 19.2– 120.1, 19.2–121, 19.2–319 (2015) Wash. Const., Art. 1, §20; Wash. Rev. Code §§10.21.020, 10.21.030, 10.21.040, 10.73.040 (2016) W. Va. Code Ann. 62–1C–1 (Lexis 2014) Wis. Const., Art. 1, §8, cl. 2; Wis. Stat. §§969.01, 969.03, 969.035 (2011–2012) Wyo. Const., Art. 1, §14; Wyo. Stat. Ann. §7–10–101 (2015)

 
 Case 2:07-cv-03239-TJH-RNB Document 515 Filed 07/11/19 Page 1 of 36 Page ID #:9983

1 AHILAN T. ARULANANTHAM (SBN 237841) aarulanantham@aclusocal.org
2 MICHAEL KAUFMAN (SBN 254575) mkaufman@aclusocal.org
3 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street
4 Los Angeles, CA 90017 Telephone: (213) 977-5211
5 Facsimile: (213) 977-5297

6 Attorneys for Petitioners (Additional counsel listed on following page)
7

8

UNITED STATES DISTRICT COURT

9

FOR THE CENTRAL DISTRICT OF CALIFORNIA

10

WESTERN DIVISION

11

12 13 14

ALEJANDRO RODRIGUEZ,

) Case No. CV 07-3239-TJH (RNBx)

ABDIRIZAK ADEN FARAH, YUSSUF ) ABDIKADIR, ABEL PEREZ RUELAS, )

FOURTH AMENDED COMPLAINT

JOSE FARIAS CORNEJO, ANGEL ARMANDO AYALA, ALEX CACHO

) )

Honorable Terry J. Hatter

CASTILLO for themselves and on behalf )

15

of a class of similarly-situated individuals,

) )

16

Petitioners,

) )

17

v.

) )

18 WILLIAM BARR, United States

) )

19

Attorney General; KEVIN MCALEENAN, Acting Secretary,

) )

20

Homeland Security; JAMES

)

MCHENRY, Director, Executive Office )

21

for Immigration Review; DAVID MARIN, Field Office Director, Los

) )

22

Angeles District, Immigration and Customs Enforcement; DON BARNES

) )

23

Sheriff of Orange County; OFFICER NGUYEN, Officer-in-Charge, Theo

) )

24

Lacy Facility; LUKE SOUTH, Commander, Theo Lacy Facility; LISA

) )

25

VON NORDHEIM, Captain, James A. Musick Facility; TERRY NELSEN,

) )

26

Assistant Field Office Director, Adelanto )

Detention Facility,

)

27

Respondents.

) )

28

Case 2:07-cv-03239-TJH-RNB Document 515 Filed 07/11/19 Page 2 of 36 Page ID #:9984
1 Additional Counsel: 2 JUDY RABINOVITZ
jrabinovitz@aclu.org 3 AMERICAN CIVIL LIBERTIES FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT 4 125 Broad Street, 18th Floor
New York, NY 10004 5 Telephone: (212) 549-2618
Facsimile: (212) 549-2654 6
MICHAEL TAN (SBN 284869) 7 mtan@aclu.org
AMERICAN CIVIL LIBERTIES FOUNDATION 8 IMMIGRANTS’RIGHTS PROJECT
39 Drumm Street 9 San Francisco, CA 94111
Telephone: (415) 343-0779 10 Facsimile: (415) 395-0950 11 JAYASHRI SRIKANTIAH (SBN 189566)
jsrikantiah@law.staford.edu 12 STANFORD LAW SCHOOL
IMMIGRANTS’ RIGHTS CLINIC 13 Crown Quadrangle
559 Nathan Abbott Way 14 Stanford, CA 94305-8610
Telephone: (650) 724-2442 15 Facsimile: (650) 723-4426 16 SEAN COMMONS (SBN 217603)
scommons@sidley.com 17 SIDLEY AUSTIN LLP
555 West Fifth Street, Suite 4000 18 Los Angeles, California 90013-1010
Telephone: (213) 896-6000 19 Facsimile: (213) 896-6600 20 21 22 23 24 25 26 27 28

Case 2:07-cv-03239-TJH-RNB Document 515 Filed 07/11/19 Page 3 of 36 Page ID #:9985

1

JURISDICTION AND VENUE

2 1. Petitioners Alejandro Rodriguez, Abdirizak Farah, Yussuf Abdikadir, Jose

3 Farias Cornejo, Abel Perez Ruelas, Angel Ayala, and Alex Cacho Castillo are non-

4 citizens who have been subjected to prolonged incarceration at the hands of the

5 Immigration and Customs Enforcement division of the Department of Homeland

6 Security (“ICE”). Each of them has been or likely will be incarcerated for more than

7 six months while their immigration proceedings have been on-going without a hearing

8 where the government has had to justify their prolonged detention. They challenge

9 prolonged imprisonment without adequate process on constitutional grounds, on

10 behalf of themselves and a class of similarly-situated non-citizens.

11 2. Prior to the injunctions in this case, on any given day there were several

12 hundred non-citizens who, like the Petitioners, were detained for prolonged periods

13 without adequate custody hearings in the Central District of California. All such

14 individuals were incarcerated by ICE for more than six months while their

15 immigration proceedings remained on-going.

16 3. This Court has subject matter jurisdiction over Petitioners’ constitutional claims

17 pursuant to 28 U.S.C. 2241 (habeas corpus), 28 U.S.C. 1651 (All Writs Act), and the

18 Suspension Clause of Article I of the U.S. Constitution. INS v. St. Cyr, 533 U.S. 289,

19 304 (2001); Demore v. Kim, 538 U.S. 510, 516-17 (2003). This Court also has

20 jurisdiction to hear this case under 28 U.S.C. 1331, which confers jurisdiction to

21 consider federal questions. Walters v. Reno, 145 F.3d 1032, 1052 (9th Cir. 1998); cf.

22 Wilkinson v. Dotson, 544 U.S. 74, 82 (2005) (challenges to parole release procedures 23 cognizable under Section 1983).1

24 4. This Court may grant relief under 28 U.S.C. 1331 (federal question), 28 U.S.C.

25 1651 (All Writs Act), 28 U.S.C. 2241 and 2243 (habeas corpus), and 28 U.S.C. 2201-

26 1 This action is both a complaint for declaratory and injunctive relief under 28 U.S.C.
27 1331 and a petition for writ of habeas corpus under 28 U.S.C. 2241. For ease of 28 reference the complaint refers to “Petitioners” and “Respondents.”

1

Case 2:07-cv-03239-TJH-RNB Document 515 Filed 07/11/19 Page 4 of 36 Page ID #:9986

1 02 (declaratory relief).

2 5. Venue is proper in the Central District of California pursuant to 28 U.S.C.

3 2241(d) because Petitioners and all other class members are incarcerated at

4 Immigration and Customs Enforcement (ICE) prisons within this District. Venue is

5 proper pursuant to 28 U.S.C. 1391(b) because a substantial part of the events giving

6 rise to these claims occurred in this District.

7

INTRODUCTION

8 6. Petitioner Alejandro Rodriguez is a citizen of Mexico who came to the United

9 States at the age of one. Prior to the filing of the original complaint in this case, he

10 was imprisoned for over three years without a hearing concerning whether his

11 prolonged incarceration was justified. During that time, the government refused even

12 to consider him for release while he litigated his removal case, despite the fact that it

13 presented a complex and novel question of law explicitly left open by the Supreme

14 Court and the Ninth Circuit.

15 7. The government released Mr. Rodriguez shortly after he filed a motion for class

16 certification in this case, but continued to subject him to serious restraints on his

17 liberty without allowing him to challenge them in a bond hearing. It then argued that

18 his case was moot. The Ninth Circuit disagreed, rejected the government’s other

19 objections, and found class certification warranted. Rodriguez v. Hayes (Rodriguez I),

20 591 F.3d 1105 (9th Cir. 2010).

21 8. This Court subsequently certified the class and directed the formation of sub-

22 classes, after which Petitioners amended the complaint. See Dkt. 77, Class

23 Certification Order. This Court then granted a preliminary injunction, (Dkt. 255,

24 Order and Preliminary Injunction), which the Ninth Circuit affirmed in Rodriguez v.

25 Robbins (Rodriguez II), 715 F.3d 1127 (9th Cir. 2013). This Court then granted

26 summary judgment for Petitioners in part. See Dkt. 353, Order, Judgement and

27 Permanent Injunction. The Ninth Circuit largely affirmed. Rodriguez v. Robbins

28 (Rodriguez III), 804 F.3d 1060 (9th Cir. 2015). The Supreme Court then granted

2

Case 2:07-cv-03239-TJH-RNB Document 515 Filed 07/11/19 Page 5 of 36 Page ID #:9987
1 certiorari. After two oral arguments, the Court reversed the Ninth Circuit’s holding 2 that the immigration statutes must be construed to require adequate bond hearings, 3 but remanded for consideration of Petitioners’ constitutional claims, as well as certain 4 questions related to class certification. Jennings v. Rodriguez (Rodriguez IV), 138 5 S.Ct. 830 (2018). On remand, the Ninth Circuit in turn remanded to this Court, while 6 also providing some guidance on the remanded questions. Rodriguez v. Marin 7 (Rodriguez V), 909 F.3d 252 (9th Cir. 2018). Neither the Supreme Court nor the 8 Ninth Circuit vacated this Court’s permanent injunction, which remains in place. 9 9. Prior to the injunctions, on any given day, there were at least approximately 350 10 people, if not more, in immigration prisons throughout the Central District who had 11 been incarcerated for more than six months – many of them for years – while their 12 cases remained pending. 13 10. None of these people had received a hearing to determine whether their 14 prolonged incarceration was warranted, and the vast majority had not received any 15 hearing at all.2 Thus, the government routinely incarcerated people for months or 16 years without demonstrating why their extended imprisonment was necessary either 17 to secure their presence at the time of removal or to protect the public safety – a 18 dubious concern given that many class members have no criminal history, and even 19 20 2 Petitioners refer interchangeably throughout this complaint to a hearing to determine
whether “prolonged incarceration” is justified, a “constitutionally-adequate” hearing, 21 and an “adequate” hearing to justify prolonged incarceration. See Rodriguez I, 591 22 F.3d at 1112 (noting that “Petitioner’s requested relief includes . . . providing all
members of the class constitutionally-adequate individual hearings before an 23 immigration judge”). A hearing that is adequate to justify prolonged detention would 24 include, at a minimum, notice to detainees of their right to the hearing, an adversarial,
transcribed, in-person hearing before an immigration judge or other impartial 25 adjudicator, counsel for detainees who are unrepresented at that hearing, and a 26 substantive standard requiring the government to show by clear and convincing
evidence that no set of release conditions could reasonably assure the detainee’s 27 presence in the event of removal or protect the community from serious danger, taking 28 into account the length of detention at issue.
3

Case 2:07-cv-03239-TJH-RNB Document 515 Filed 07/11/19 Page 6 of 36 Page ID #:9988
1 those who have been convicted have necessarily finished serving their sentences 2 before their transfer to immigration custody. 3 11. This Court’s permanent injunction has fundamentally changed the lives of class 4 members. Since the injunction, all class members receive a hearing before an 5 immigration judge to determine whether their continued imprisonment is warranted 6 within 180 to 195 days of their initial incarceration. See Dkt. 425, Order. Based on 7 government statistics, immigration judges have found that approximately 70% of 8 class members who receive hearings under the injunction are not a danger or flight 9 risk warranting detention, and have ordered their release on bond and other 10 conditions. See Request for Judicial Notice, Exhibit B at 1-2, Rodriguez v. Robbins, 11 Nos. 13-56706, 13-56755 (9th Cir. Sept. 22, 2014) ECF 24-4. Of these class 12 members, approximately 70% post bond and have been released. Id. 13 12. Petitioners and all the detainees they represent are held under one of four 14 general immigration detention statutes that govern the incarceration of most non15 citizens whom the government is trying to remove. See 8 U.S.C. 1225(b) (authorizing 16 detention of non-citizens seeking admission); 8 U.S.C. 1226(a) (authorizing detention 17 of non-citizens pending a determination of removability); 8 U.S.C. 1226(c) 18 (authorizing “mandatory” detention, without hearings, of certain non-citizens who, 19 inter alia, have been convicted of specified triggering offenses); 8 U.S.C. 1231(a) 20 (authorizing detention of non-citizens with final orders of removal during and after 21 the removal period). 22 13. Prior to the Court’s injunctions, Respondents maintained a policy or general 23 practice – which Petitioners contend is unlawful – of imprisoning people for 24 prolonged periods without providing them adequate hearings. Pursuant to this 25 unlawful policy or general practice, Respondents had incarcerated the Petitioners and 26 each class member pursuant to one of the statutes described above for more than six 27 months. Pursuant to Respondents’ policy or general practice, during that time neither 28 Petitioners nor any other class member had received a hearing where the government
4

Case 2:07-cv-03239-TJH-RNB Document 515 Filed 07/11/19 Page 7 of 36 Page ID #:9989

1 had to show that their prolonged incarceration remained justified.

2 14. Respondents’ general policies and practices of prolonged incarceration without

3 hearings violate the constitutional rights of the Petitioners and other class members.

4 To remedy this on-going violation of the law, Petitioners bring this action seeking

5 declaratory and injunctive relief on behalf of themselves and a class of similarly-

6 situated persons.

7

PARTIES

8 15. Petitioner Alejandro Rodriguez is a citizen of Mexico. He was imprisoned for

9 over three years while litigating his removal case prior to the filing of the original

10 complaint in this case. He never received a hearing to determine whether his

11 prolonged imprisonment was justified. He ultimately won his removal proceedings.

12 16. Petitioner Abdirizak Aden Farah is a Somali refugee who was incarcerated at

13 Mira Loma Detention Center for over eight months without a hearing to determine

14 that his imprisonment was warranted. He received no explanation of any kind as to

15 why he could not be released pending completion of his removal hearings, despite

16 having a close family friend in Minnesota willing to house him and no criminal

17 history of any kind. He eventually gave up, as he was unwilling to bear further

18 imprisonment, and returned to Somalia.

19 17. Petitioner Yussuf Abdikadir is another Somali refugee who was incarcerated by

20 ICE for approximately six months without a hearing to determine whether his

21 imprisonment was warranted. He too has received no explanation of any kind as to

22 why he could not be released pending completion of his removal proceedings, despite

23 having a sponsor in San Diego willing to house him and no criminal history of any

24 kind.

25 18. Petitioner Abel Perez Ruelas is a Mexican national who entered the United

26 States on a visitor’s visa approximately eight years ago and is now married to a U.S.

27 citizen. He was incarcerated for at least 16 months pending completion of his

28 removal proceedings. He received a bond hearing where he bore the burden to prove

5

Case 2:07-cv-03239-TJH-RNB Document 515 Filed 07/11/19 Page 8 of 36 Page ID #:9990
1 that he was not a danger or flight risk, but the judge denied bond, and later set it at an 2 amount he could not pay. Although he was plainly eligible to adjust status in removal 3 proceedings, he remained incarcerated without a hearing before ultimately winning 4 his immigration case. He ultimately won his removal case. 5 19. Petitioner Jose Farias Cornejo is also a Mexican national, but was a lawful 6 permanent resident of this country, where he had lived since before his first birthday. 7 He has been convicted of relatively minor offenses, the most serious of which was 8 possession of a controlled substance, for which he was sentenced to 180 days in jail. 9 However, he spent more than twice that amount of time in immigration prison while 10 awaiting a final decision in his immigration case. Although the government never 11 disputed his eligibility for cancellation of removal and stated in immigration court 12 that it did not intend to oppose his application, he remained incarcerated without a 13 hearing until he won his case. 14 20. Petitioner Angel Armando Ayala is a citizen of El Salvador who had lived in 15 the United States since the age of eleven. He had never received a criminal sentence 16 of longer than 90 days, but was nonetheless incarcerated by immigration authorities 17 for over 18 months while litigating his removal case. He was never permitted to seek 18 release on bond before an immigration judge during that time. He was ultimately 19 deported. 20 21. Petitioner Alex Cacho Castillo is a citizen of Honduras. He fled that country 21 due to gang violence and harm he suffered as a member of the Garifuna minority. He 22 entered the United States without inspection, was apprehended by Border Patrol 23 officials, passed a credible fear interview, and is now in removal proceedings. He has 24 been imprisoned for nearly five months in Orange County Jail facilities operated 25 under contract with ICE. He is currently incarcerated at the Theo Lacy facility. He 26 has never received a hearing to determine whether his prolonged imprisonment is 27 justified. He is eligible to receive one under the injunction currently entered in this 28 case.
6

Case 2:07-cv-03239-TJH-RNB Document 515 Filed 07/11/19 Page 9 of 36 Page ID #:9991
1 22. Respondent William Barr is the Attorney General of the United States and the 2 head of the Department of Justice, which encompasses the Board of Immigration 3 Appeals (“BIA”) and immigration judges as a subunit – the Executive Office of 4 Immigration Review. Mr. Barr shares responsibility for implementation and 5 enforcement of the immigration laws along with Respondent McAleenan. Mr. Barr is 6 a legal custodian of Petitioners. Mr. Barr is sued in his official capacity. 7 23. Respondent Kevin McAleenan is the Acting Secretary of Homeland Security 8 and heads the Department of Homeland Security, the arm of the federal government 9 responsible for enforcement of immigration laws. Mr. McAleenan is the ultimate 10 legal custodian of Petitioners. Mr. McAleenan is sued in his official capacity. 11 24. Defendant James McHenry is the Director for the Executive Office for 12 Immigration Review (“EOIR”), which is the federal agency that operates the 13 immigration courts. Mr. McHenry is responsible for the supervision of the Deputy 14 Director, the Chairman of the BIA, the Chief Immigration Judge, the Chief 15 Administrative Hearing Officer, and all agency personnel in the execution of their 16 duties. Mr. McHenry is sued in his official capacity. 17 25. Respondent David Marin is the Field Office Director for the Los Angeles 18 District of ICE. In his official capacity, Mr. Marin is authorized to release Petitioners 19 and has legal custody of him. He is sued in his official capacity. 20 26. Respondent Don Barnes is the Sheriff of Orange County, and therefore the 21 officer responsible for the operation of the Theo Lacy Facility and the James A. 22 Musick Facility in Orange, California. The Theo Lacy Facility and James A. Musick 23 Facility websites acknowledge that they house immigration detainees. Sheriff Barnes 24 is a legal custodian of people detained at that facility, and is sued in his official 25 capacity. 26 27. Respondent Officer Nguyen is the Officer-in-Charge at the Theo Lacy facility, 27 and therefore the highest-ranking ICE officer at the facility. He is a legal custodian of 28 people detained at that facility. Mr. Nguyen is sued in his official capacity.
7

Case 2:07-cv-03239-TJH-RNB Document 515 Filed 07/11/19 Page 10 of 36 Page ID #:9992

1 28. Respondent Captain Luke South is the commander of the Theo Lacy Facility,

2 which is, according to its own website, the largest “correctional institution” in Orange

3 County. Nonetheless, Theo Lacy incarcerates a number of immigration detainees.

4 Captain South is a legal custodian of people detained at that facility, and is sued in

5 his official capacity.

6 29. Respondent Captain Lisa Von Nordheim manages the operations of the James A.

7 Musick Facility, another prison in Orange County. According to its website, the

8 Musick facility incarcerates “pre-trial and sentenced” inmates. Nonetheless, upon

9 information and belief, it also houses class members, none of whom are criminal

10 detainees. Ms. Von Nordheim is a legal custodian of people detained at that facility,

11 and is sued in her official capacity.

12 30. Respondent Terry Nelson is the Assistant Field Office Director at the Adelanto

13 Detention Facility, and therefore the highest-ranking ICE officer at the facility. He is

14 a legal custodian of people detained at that facility. Mr. Nelson is sued in his official

15 capacity.

16 31. Respondent James Janecka is the Warden of the Adelanto Detention

17 Facility in Adelanto, California. Warden Janecka is a legal custodian of people

18 detained at that facility, and is named in his official capacity.3

19

FACTS AND PROCEDURAL HISTORY

20 Alejandro Rodriguez

21 32. Petitioner Alejandro Rodriguez was imprisoned for over three years while he

22 challenged the government’s efforts to deport him to Mexico, a country where he has

23 not lived since he was a baby.

24

25 3 The government has taken conflicting positions in detention litigation concerning
26 who the proper Respondent should be in habeas petitions challenging immigration detention. Petitioners have sued every official who could constitute an appropriate
27 respondent under the different theories advanced by the government, as well as the
28 officials who constitute the proper defendants for a complaint under Section 1331.

8

Case 2:07-cv-03239-TJH-RNB Document 515 Filed 07/11/19 Page 11 of 36 Page ID #:9993
1 33. Mr. Rodriguez came to this country in September 1979, when was one year old. 2 He became a lawful permanent resident on June 4, 1987, when he was nine years 3 old.4 4 34. On or about July 29, 1998, Mr. Rodriguez pled guilty to Unlawful Driving or 5 Taking of a Vehicle under section 10851(A) of the California Vehicle Code (CVC). 6 For this crime he was sentenced to two years. Five years later, on or about October 7 21, 2003, he pled no contest and was convicted of Possession of a Controlled 8 Substance under California Health and Safety Code section 11377(A), for which he 9 received formal probation of 5 years under the conditions of California Prop 36. He 10 was transferred to DHS custody after his arrest, on April 10, 2004. He was 11 imprisoned for over three years after that transfer, until the government released him 12 shortly after the filing of the class certification motion in this case. 13 35. The government charged Mr. Rodriguez with being removable based on his 14 drug offense on April 15, 2004. At his removal hearing, Mr. Rodriguez contested that 15 his conviction rendered him removable, and argued in the alternative that he was 16 eligible for relief from removal.5 17 36. The government received a continuance to alter the charging documents in his 18 case, after which it charged Mr. Rodriguez with being deportable on an additional 19 ground based on his 1998 conviction for theft. Subsequently, on July 21, 2004, an 20
4 Mr. Rodriguez narrowly missed becoming a citizen due to events beyond his control. 21 He would have gained automatic citizenship, through his father, if his parents had 22 legally separated prior to his 18th birthday, or if he had been under the age of 18 at the
time of the enactment of the Child Citizenship Protection Act of 2000. However, his 23 parents formally separated shortly after he turned 18, and he was 23 by the time the 24 Act passed. See 8 U.S.C. 1431.
5An ICE officer initially deemed him eligible for release on bond, and set the bond at 25 $15,000. However, Mr. Rodriguez was unable to afford the bond in that amount, and 26 an immigration judge denied his request to lower the bond amount. Shortly after the
BIA decided his case in 2004, the government revoked that bond order and ordered 27 him detained without bond under the mandatory detention provision codified at 8 28 U.S.C. 1226(c).
9

Case 2:07-cv-03239-TJH-RNB Document 515 Filed 07/11/19 Page 12 of 36 Page ID #:9994
1 immigration judge ordered him removed, holding that both his drug offense and his 2 theft offense rendered him removable. The Judge held that the drug offense was a 3 controlled substance offense triggering removal and that the theft conviction was an 4 aggravated felony, triggering mandatory removal.6 The immigration judge ordered 5 him deported to Mexico. Mr. Rodriguez appealed that decision to the BIA. 6 37. On December 21, 2004, the Board reversed the Judge’s decision that the drug 7 possession conviction rendered Mr. Rodriguez removable, but upheld the decision 8 that his theft conviction was an aggravated felony. 9 38. On December 28, 2004, Mr. Rodriguez timely petitioned for review of the 10 Board’s decision to the Ninth Circuit, arguing inter alia that his crime was not an 11 aggravated felony as defined by the Immigration and Nationality Act. Mr. Rodriguez 12 then sought a stay of removal, which the government opposed. Thereafter, the Ninth 13 Circuit granted his request for a stay of removal, and therefore necessarily found that 14 his case presents substantial legal claims. See Maharaj v. Ashcroft, 295 F.3d 963, 966 15 (9th Cir. 2002). 16 39. While Mr. Rodriguez’s case was pending at the Ninth Circuit, that court 17 decided another case holding that Mr. Rodriguez’s theft conviction was not an 18 aggravated felony. The government then moved to hold his case in abeyance while it 19 sought en banc review of that decision. The Ninth Circuit granted the motion, even 20 though he had already been imprisoned for 15 months at that time. After en banc 21 22 6Although not charged in the immigration charging document, the government also
presented evidence from court records that, on or about October 24, 2003, a man using 23 the name Alejandro Rodriguez (who also used another name as an alias) pled guilty to 24 California Health and Safety Code section 11550(a), Under the Influence of a
Controlled Substance, and was sentenced to 120 days in jail, which he served during 25 the same time that Mr. Rodriguez was released and reporting to the court for his 26 conviction of October 21, 2003. The date of conviction makes it highly unlikely that
Mr. Rodriguez was in fact convicted of this offense. Nonetheless, the IJ ruled that this 27 conviction constituted a second drug offense, rendering Petitioner removable on the 28 basis of the drug convictions.
10

Case 2:07-cv-03239-TJH-RNB Document 515 Filed 07/11/19 Page 13 of 36 Page ID #:9995
1 review failed, the government sought Supreme Court review in the other case, and 2 again requested that Mr. Rodriguez’s case be held. After the Supreme Court granted 3 cert, his case was held still further. In the end, his case was held in abeyance for over 4 two years, but none of the decisions for which it was held established that he was 5 subject to mandatory removal, as the immigration courts had found. 6 40. Eventually, the government largely conceded that Mr. Rodriguez’s convictions 7 did not subject him to mandatory removal, and it agreed to remand his case to the 8 immigration courts on this basis. He ultimately won cancellation of removal, over 9 seven years after his removal proceedings began. 10 41. During the three years of Mr. Rodriguez’s confinement, the government never 11 held a hearing as to whether his prolonged incarceration was justified. In fact, the 12 only process Mr. Rodriguez received with respect to his detention was what the 13 government calls “File Custody Reviews.” The first of these occurred on March 10, 14 2005, when an ICE agent presumably read through his file and issued a “Decision to 15 Continue Detention.” No ICE official interviewed Mr. Rodriguez, let alone held a 16 hearing, prior to making this decision. Instead, ICE merely gave him a questionnaire 17 to fill out, asking for information regarding family members, employment 18 experience, and any outstanding probation requirements. Although Mr. Rodriguez 19 documented his work as a dental assistant and his extensive family ties, including his 20 U.S. citizen father and sister, and his lawful permanent resident mother and brother, 21 ICE denied his request for release, stating simply that he would remain detained until 22 the Ninth Circuit rendered its decision. The notice offered no further explanation for 23 the decision to continue incarceration, made no mention of how long Mr. Rodriguez 24 had been imprisoned (eleven months at that time), and offered no suggestions as to 25 what steps he might take to effect a different outcome in any future decisions. 26 42. In September 2005, ICE conducted another file custody review, which it 27 apparently denied for similar reasons, and in March 2006 the process was repeated 28 again. In each of these instances, the government did not even provide Mr. Rodriguez
11

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1 with a written decision as to why he would remain incarcerated for many more 2 months. In March 2007 the government chose to continue Mr. Rodriguez’s 3 imprisonment yet again. At the time of that last custody decision he had been 4 incarcerated for nearly three years, yet the decision made no mention of this fact. 5 Instead, the decision asserted that continued detention was justified because the Ninth 6 Circuit would decide his case soon, which was incorrect. 7 43. Shortly after the original class complaint in this case was filed, the government 8 released Mr. Rodriguez from confinement, but continued to subject him to severe 9 restraints on his liberty, including a requirement that he abide by a strict curfew and 10 wear an electronic monitoring device at all times. 11 44. Over seven years after his removal proceedings began, Mr. Rodriguez won 12 cancellation of removal and was permitted to retain his lawful permanent resident 13 status. 14 Abdirizak Aden Farah 15 45. Abdirizak Aden Farah is a Somali refugee who was incarcerated for over eight 16 months at the Mira Loma facility without any kind of hearing to determine whether 17 his imprisonment was justified. 18 46. Mr. Farah was born on May 5, 1987 in Kismayo, Somalia. His family lived in 19 Mogadishu for the early part of his childhood. Thousands of refugees have fled 20 Somalia since the country’s civil war erupted nearly thirty years ago. Widespread 21 conflict and human rights violations continue to this day. The United Nations High 22 Commission for Refugees issued guidelines in May 2010 largely advising against the 23 return of anyone from central or southern Somalia, including even asylum seekers 24 whose claims had been rejected. With respect to the capital of Mogadishu (where Mr. 25 Farah lived prior to suffering persecution), a Human Rights Watch researcher stated 26 “Mogadishu is one of the world's most dangerous places . . . Returning people there 27 is not just risky; it's a potential death sentence.” 28 47. Mr. Farah first faced persecution in Somalia as a child, when his family was
12

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1 forced to flee Mogadishu because they were members of the minority Marehan clan 2 who faced danger from members of the Hawiye, a powerful majority clan in Somalia. 3 Eventually, the family was able to settle in Kismayo, a city in Somalia where the 4 Hawiye were not powerful. Several years later, his father was shot and killed by 5 members of a Hawiye sub-clan when he returned briefly to Mogadishu to try to sell 6 the family home. 7 48. Mr. Farah fled Somalia in April 2009 in order to escape the al-Shabaab, a 8 militant Islamic organization. Al-Shabaab militants shot and killed his brother 9 Mohamed because he worked as a driver for the Somali Transitional Federal 10 Government (TFG) in the summer of 2007. These same militants nearly killed Mr. 11 Farah in the same attack by slashing his wrist with a knife. Afterward, al-Shabaab 12 members repeatedly accused him of working for the TFG and finally threatened to 13 kill him if he did not join them. 14 49. After the last of these threats, Mr. Farah’s uncle sent money for him to flee. 15 With the assistance of several people, he arrived by a circuitous route at the southern 16 border of the United States, where he presented himself at the border and requested 17 asylum on or about December 31, 2009. An asylum officer found his claim credible, 18 and referred him for a full asylum hearing before an immigration judge. 19 50. Mr. Farah had several hearings in his immigration case, the first of which took 20 place in March 2010. At several of these, the immigration judge continued his 21 hearing because he did not have a lawyer, while others were cancelled because the 22 judge or the translator were not present. 23 51. Mr. Farah applied for release on parole under 8 C.F.R. 212(d)(5)(A). Under 24 these procedures, release decisions are made by a single officer, with no appeal 25 process, and without providing a hearing of any kind. An ICE officer denied him 26 release without meaningful explanation. 27 52. After approximately 15 months of incarceration, Mr. Farah could no longer 28 bear the hardships of continued imprisonment, including his inability to contact his
13

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1 wife and child while detained. He decided he could no longer continue with his case, 2 and was subsequently deported. 3 Yussuf Abdikadir 4 53. Yussuf Abdikadir was also a Somali refugee. He was imprisoned by 5 immigration authorities in early March 2010, and also never received a detention 6 hearing of any kind. 7 54. Mr. Abdikadir was born on October 5, 1980.7 He lived with his family – 8 including his parents and five siblings -- as a child in Mogadishu. He is also a 9 member of a minority clan in Somalia. 10 55. In 1991, as the Somali political structure disintegrated, a militia associated with 11 a dominant clan, the Hawiye, attacked Mr. Abdikadir’s family. They killed his two 12 older brothers, his father, and his grandmother. They also severely mistreated other 13 members of the family, and raped his mother. 14 56. Mr. Abdikadir and his surviving family members then fled to Kenya, where 15 they lived in various refugee camps for most of the next two decades. He married 16 Shukri Hussein, also a Somali refugee, while in the camps, and the couple had three 17 children. (Ms. Hussein also has a son from a prior relationship, who is now Mr. 18 Abdikadir’s step-son). 19 57. Life in the refugee camps was very hard for Mr. Abdikadir and his family. 20 Kenya granted them no permanent status, and as a result they were forced to live in 21 the camps and denied the right to work. At the same time, the Kenyan government 22 and international agencies failed to provide sufficient food for the refugees. He and 23 his family would have to wait for hours during the heat of the day to obtain their 24 small food rations, and often were mistreated by the Kenyan authorities while 25 waiting. Mr. Abdikadir occasionally worked illegally in order to supplement his 26 family’s meager provisions, but Kenyan authorities arrested and punished him for 27 28 7 Yussuf is his given name, while Abdikadir is his father’s given name.
14

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1 doing so. The Kenyan authorities also did little if anything to stop the bandits who 2 would raid the camps at night, raping camp residents and pillaging their belongings. 3 58. After life in the camps became too difficult, Mr. Abdikadir’s mother managed 4 to sell some land the family owned in Somalia, and used these proceeds to procure 5 funds to allow her son to escape. Unable to return to Somalia or survive further life in 6 the Kenyan refugee camps, Mr. Abdikadir fled. He traveled a circuitous route in 7 search of a country with refugee protections, and ultimately arrived at the southern 8 border of the United States seeking asylum. 9 59. At the border crossing from Tijuana he presented a birth certificate and applied 10 for asylum, entering ICE detention in March 2010. He was sent to Mira Loma shortly 11 afterward, and passed his credible fear interview several weeks later, in 12 approximately April 2010. 13 60. Mr. Abdikadir faced substantial delays that prevented him from even submitting 14 an application for asylum, including because he was unable to find a lawyer to 15 represent him and speaks virtually no English. 16 61. Mr. Abdikadir also applied for release on parole under 8 C.F.R. 212(d)(5)(A). 17 As with Mr. Farah, the decision refusing to release Mr. Abdikadir was made by a 18 single officer, with no appeal process, and without a hearing of any kind. Mr. 19 Abdikadir requested release from this officer, and in doing so provided his birth 20 certificate as well as a sworn affidavit from a friend of his who lives in San Diego 21 and was willing to house and assist him. Nonetheless, his parole request was denied. 22 The sole explanation provided was a check mark in a box next to a paragraph which 23 states “You have not established to ICE’s satisfaction that you will appear as required 24 for immigration hearings, enforcement appointments, or other matters, if you are 25 paroled from detention.” Other than requesting a redetermination based on changed 26 circumstances, Mr. Abdikadir had no recourse to any further process for appeal. 27 62. Mr. Abdikadir suffered during his time in immigration prison, not only because 28 of the traumatic effects of incarceration in general on those who have suffered past
15

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1 persecution, but also because of his medical problems. Mr. Abdikadir had some kind 2 of problem concerning his eyes – perhaps tied to light sensitivity -- that caused them 3 to be constantly red and irritated. Although he sought medical attention for this 4 problem at the Mira Loma Detention Center, the clinic there provided him no 5 medication that addressed the problem. 6 63. Mr. Abdikadir was also unable to communicate with his family while in 7 immigration prison. 8 Abel Perez Ruelas 9 64. Abel Perez Ruelas is a citizen of Mexico. He was imprisoned at Mira Loma 10 Detention Center for more than 17 months, starting on April 8, 2009. 11 65. Mr. Perez Ruelas was born on January 25, 1967 in Jalisco, Mexico. In 1996, he 12 met Maria del Rosario, with whom he had a daughter, Azirit Lessandra, one year 13 later. 14 66. He was admitted to the United States in 2002 on a visitors’ visa, two years after 15 he broke up and lost contact with with Ms. del Rosario. 16 67. In approximately 2007, about five years after Mr. Perez-Ruelas came to live in 17 the United States, he received a call from his mother, who told him that Ms. del 18 Rosario had died in childbirth in Mexico, and that his daughter had been sent to live 19 with her mother’s parents. Since then, Mr. Perez Ruelas has been living with the hope 20 that one day he may bring his daughter to the United States to live with him. 21 68. On December 22, 2008, Mr. Perez Ruelas married Maria Navichoque Perez, a 22 U.S. citizen. She is a nurse at the Los Angeles Jewish Home, a non-profit senior 23 living facility in Reseda, California. The couple filed to adjust his status based on 24 their marriage in approximately February 2009. 25 69. After his marriage, Mr. Perez Ruelas became the stepfather of Maria Perez’s 26 four children, all of whom are U.S. citizens by birth. 27 70. Mr. Perez Ruelas lived and worked in the United States for almost eight years 28 prior to his imprisonment. He worked in construction, primarily with cement and
16

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1 tiles. Prior to his incarceration, he regularly attended church with his wife in Pacoima 2 and Reseda. 3 71. Mr. Perez Ruelas has had three prior convictions for driving under the influence 4 of alcohol, none for which he spent more than two months in jail. Mr. Perez Ruelas 5 served three months of probation for his first offense in 1994; he served 10 days in 6 jail for his second, a decade later in 2004; and he served 60 days in jail for his third, 7 which occurred four years later. Pursuant to his sentence for the last conviction, Mr. 8 Perez Ruelas diligently attended Alcoholics Anonymous for over a year, and 9 continued attending AA meetings even while in immigration prison. 10 72. On or about April 8, 2009, Mr. Perez Ruelas was released from jail for his last 11 offense. Immigration and Customs Enforcement officials immediately took him into 12 immigration custody, notwithstanding his pending application to adjust his status 13 based on his marriage. At the time, Mr. Perez-Ruelas was in the process of becoming 14 a lawful permanent resident of the United States. 15 73. Mr. Perez Ruelas was given a bond hearing on April 21, 2009, pursuant to 8 16 U.S.C. 1226(a), at which he bore the burden to prove that he was not a danger or 17 flight risk. Upon information and belief, the immigration judge knew that Mr. Perez 18 Ruelas was married to a U.S. citizen and that he had a pending adjustment 19 application, but nonetheless the judge denied him release on bond. He told Mr. Perez 20 Ruelas that his prior DUI convictions made him a danger to society, even though his 21 sentence had long since expired. 22 74. With the assistance of his attorney, Mr. Perez Ruelas applied for a bond 23 reduction in February 2010. At that hearing, the immigration judge set a bond of 24 $5,000, an amount too high for Mr. Perez Ruelas’s family to pay. 25 75. Because he could not pay, Mr. Perez Ruelas remained in immigration prison – 26 for over 16 months while awaiting adjudication of his case. 27 76. On July 30, 2010, Mr. Perez Ruelas and his wife received notice that their 28 application to adjust his status had been approved, with a priority date of March 22,
17

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1 2009. Although he was entitled to adjust status immediately at that time, Defendants
2 continued to imprison him for no apparent reason.
3 77. On December 3, 2010, after approximately 20 months in immigration prison,
4 Mr. Perez Ruelas’s application to adjust status was granted. He thereby defeated the
5 government’s charges of removability and was permitted to remain in the United
6 States.
7 Jose Farias Cornejo
8 78. Jose Farias Cornejo is a citizen of Mexico. He spent over one year in
9 immigration prison at Mira Loma Detention Center, starting on September 14, 2009. 10 79. Mr. Farias Cornejo was born on August 14, 1984 in Michoacan, Mexico. He 11 was brought to the United States prior to his first birthday by his parents, who were 12 migrant farm workers. He speaks fluent English. 13 80. Mr. Farias Cornejo has four siblings. All four are U.S. citizens. Mr. Farias 14 Cornejo’s mother is also a lawful permanent resident of the United States. 15 81. Mr. Farias Cornejo spent his childhood years in Washington and his 16 adolescence in California because his parents were migrant farm workers. He 17 attended elementary school in San Diego for a few years before moving to Montclair, 18 California to attend middle school and high school. He took special education classes 19 at Montclair High School because of his diagnosed learning disability. 20 82. After graduating from high school, Mr. Farias Cornejo worked at various jobs 21 near his hometown in California, including in construction -- manufacturing jacuzzis 22 and landscaping. 23 83. Mr. Farias Cornejo had several prior convictions. In 2007, he was convicted of 24 possession of methamphetamine and received substance abuse treatment as an 25 alternative to incarceration under California Proposition 36. Mr. Farias Cornejo 26 diligently completed his drug treatment classes, but because he could not afford to 27 pay the mandatory fine, he was sentenced to 180 days in jail.
28 84. Upon information and belief, in 2009 Mr. Farias Cornejo was convicted of a 18

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1 misdemeanor California theft offense, for which he spent 14 days in jail. In that same 2 year, he was convicted of being under the influence of a controlled substance, for 3 which he spent 60 days in jail. 4 85. Shortly after serving his last sentence, in September 2009, federal immigration 5 officials initiated removal proceedings against him and placed him in immigration 6 prison, citing their authority to mandatorily detain any individual with a prior 7 controlled substance offense under 8 U.S.C. 1226(c). 8 86. Although the government contended that Mr. Farias Cornejo was subject to 9 “mandatory detention” without a bond hearing under that provision, it also 10 acknowledged that he was eligible for relief from removal in the form of cancellation 11 of removal under 8 U.S.C. 1229b, because he had not been convicted of an 12 “aggravated felony.” 13 87. Mr. Farias Cornejo was given a cancellation application on October of 2009, 14 but struggled to find an attorney to assist him in completing it. After five months in 15 confinement, he finally found an attorney, but that attorney did not file his 16 application. Eventually Mr. Farias Cornejo found a different attorney to represent 17 him, in June of this year. Through his new attorney Mr. Farias Cornejo finally filed 18 his cancellation application, nearly ten months after he was first placed in 19 immigration prison. 20 88. Upon information and belief, at his cancellation hearing on August 17, 2010, 21 the government stated that it had no objection to his application. However, the 22 immigration judge told Mr. Farias Cornejo that he had an outstanding warrant, and 23 therefore refused to adjudicate the application. Instead, the judge set his next court 24 hearing for November 15, 2010, apparently on the assumption that his warrant would 25 be resolved prior to that time. 26 89. Mr. Farias Cornejo finally had his hearing in January 2011, at which the IJ 27 granted him cancellation of removal. He was then released. He never had a hearing to 28 determine whether his imprisonment remained warranted despite being incarcerated
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1 for over a year. 2 Angel Armando Ayala 3 90. Angel Armando Ayala is a citizen of El Salvador who was born on August 20, 4 1976. He came to the United States with his family at the age of eleven. He attended 5 junior high and high school in Southern California. 6 91. Prior to his arrest by immigration authorities, Mr. Ayala lived with his mother, 7 Maria, who is a United States citizen, and was also frequently in touch with his 8 brother and sister, both of whom live in Southern California. 9 92. Mr. Ayala worked in the United States his entire adult life, engaging in a 10 variety of construction-related jobs including forklift driving, materials handling, 11 landscaping, and in shipping and receiving. 12 93. Immigration officials arrested Mr. Ayala in what apparently was a worksite raid 13 in approximately 1994. At that time, government officials imprisoned him at the San 14 Pedro Detention facility. He eventually had a hearing before an immigration judge 15 who ordered him released on bond because he was eligible for relief under the 16 Nicaraguan and Cuban Adjustment Relief Act (“NACARA”). The judge instructed 17 him to find a lawyer to help him apply. 18 94. Shortly afterward, when Mr. Ayala went to the federal immigration building, he 19 met a man acting as an attorney named Jose Quinones. Mr. Quinones offered to file 20 Mr. Ayala’s NACARA application for a fee. 21 95. Mr. Quinones eventually filed the application, which was based on Mr. Ayala’s 22 mother’s eligibility for NACARA. A hearing on the application was set for October 23 29, 1999. 24 96. Shortly before the hearing, Mr. Ayala’s mother became seriously ill. Because 25 he had to take his mother to the hospital and attend to her, Mr. Ayala could not attend 26 the court hearing. At the hearing, the immigration judge ordered him removed in 27 absentia, notwithstanding the fact that he was prima facie eligible for NACARA 28 relief.
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1 97. A few days after the hearing, after his mother’s condition had stabilized, Mr. 2 Ayala called Mr. Quinones to discuss his immigration case. Mr. Quinones stated that 3 the case now had to be re-opened, and that he would charge Mr. Ayala several 4 thousand dollars to do this. When Mr. Ayala stated that he did not have such funds 5 available, Mr. Quinones told him to contact him when he had saved up the money. 6 He did not mention that Mr. Ayala had to file the motion within 180 days, as is 7 required, or that he could be deported if he did not file the motion. 8 98. Several years later, Mr. Quinones was suspended from practicing before the 9 immigration courts by the Executive Office of Immigration Review. If he ever was a 10 licensed attorney, he has presumably been disbarred. 11 99. Mr. Ayala continued to live and work in the United States for the ensuing 12 decade. Upon information and belief, he received several misdemeanor convictions 13 for driving without a license during this time, but was not convicted of any other 14 offense. 15 100. On February 14, 2009, immigration authorities arrested Mr. Ayala at his home 16 in Pomona, which he shared with his mother, based on his outstanding removal order 17 from ten years earlier. They transferred him to the Mira Loma Detention Center. 18 101. With the assistance of non-profit legal service provider Catholic Charities, Mr. 19 Ayala filed a motion to reopen his case based on ineffective assistance of counsel. 20 However, the immigration judge denied the motion, and the BIA affirmed the 21 decision, asserting that the motion was untimely and not subject to tolling based on 22 ineffective assistance. According to the Board, the attorney had no duty to inform Mr. 23 Ayala of the filing deadline for the motion to reopen because the attorney never 24 agreed to represent him with respect to the motion. Thus, the Board declined to 25 reopen his case, notwithstanding the fact that Mr. Ayala was eligible for NACARA 26 27 28
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1 relief.8 2 102. Mr. Ayala subsequently hired attorney Shan Potts, who represented him before 3 the Ninth Circuit. The Ninth Circuit granted Mr. Ayala a stay of removal, but 4 ultimately denied his petition , after which Mr. Ayala was removed. 5 103. Mr. Ayala’s incarceration worked a great hardship on his U.S.-citizen mother, 6 with whom he lived prior to his arrest. She had difficulty paying rent for the 7 apartment they shared, and also suffered from the absence of his emotional support. 8 Alex Cacho Castillo 9 104. Alex Cacho Castillo is a citizen of Honduras. He has been in ICE custody – 10 thus far in jails in Orange County – for nearly 5 months, starting on or about January 11 25, 2019. He is currently incarcerated at the Theo Lacy facility. 12 105. Mr. Cacho Castillo was born on November 17, 2000 in the municipality of 13 Iriona, department of Colon, in northeastern Honduras. 14 106. Mr. Cacho Castillo is a member of the Garifuna minority in Honduras. 15 Although he speaks some Spanish, his best language is Garifuna. 16 107. Mr. Cacho Castillo entered the United States without inspection near Mexicali. 17 He was apprehended several miles inside the United States on the same day, by 18 Border Patrol agents. 19 108. An asylum officer conducted a credible fear interview for Mr. Cacho Castillo 20 on February 11, 2019. According to notes taken by the officer, gang members killed 21 his father when Mr. Cacho Castillo was about 15 years old. Roughly three years later 22 they threatened to kill him as well, and he fled for his life. After interviewing Mr. 23 Cacho Castillo, the asylum officer found him credible and attributed the threats of 24 violence against him in part to his being the son of his father, and in part to his being 25 a member of the Garifuna minority. 26
8 Upon information and belief, Mr. Ayala has one misdemeanor conviction for drug 27 possession from approximately 1996 and several convictions for driving without a 28 license. None of these rendered him ineligible for NACARA.
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1 109. After he passed the credible fear interview, the government placed Mr. Cacho

2 Castillo in full removal proceedings by charging him in a Notice to Appear issued on

3 February 11, 2019. He has since had two hearings in immigration court: a master

4 calendar hearing on March 5, 2019, and a second one on April 3, 2019, which was

5 apparently rescheduled because the government failed to provide an interpreter. His

6 next hearing is set for May 24, 2019.

7 110. Mr. Cacho Castillo’s aunt lives in New York. The government has her name

8 and contact information. She has stated her willingness to house and support Mr.

9 Cacho Castillo if he were released.

10 111. Mr. Cacho Castillo has no criminal history of any kind.

11 112. Despite the fact that he has a sponsor willing to support and house him and no

12 criminal history, ICE has chosen not to release Mr. Cacho Castillo.

13 113. Mr. Cacho Castillo has suffered greatly while incarcerated by Defendants. He is

14 only slightly over age 18 and has never previously spent any time imprisoned. His

15 incarceration has caused him severe emotional distress and taken a substantial toll on

16 his psychological well-being.

17

CLASS-WIDE ALLEGATIONS

18 114. Petitioners were amongst approximately 350 detainees, if not more, in the

19 Central District on any given day prior to the injunction whom the government

20 incarcerated for more than six months without proving at an adequate hearing that

21 their prolonged imprisonment was justified.9 It is the government’s policy or practice

22 to incarcerate non-citizens under the immigration statutes for prolonged periods of

23
24 9 This Court ordered the government to produce a “snapshot” list of all class members on a particulate date, which the government produced for the date of April 21, 2010.
25 As of that day, there were 352 class members – people incarcerated in ICE custody in 26 the Central District who had been in ICE custody for at least 180 days, and whose
cases remained pending either before the immigration courts or before the federal 27 courts with a stay of removal in effect. Subsequent data provided by the government 28 showed approximately 1,000 such people over the course of a year.

23

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1 time pending completion of their removal proceedings without providing them with 2 such hearings. It would resume that policy and practice in the Central District were 3 this Court to vacate the permanent injunction. 4 115. Petitioners bring this action on behalf of themselves and all other persons 5 similarly-situated, pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), or 6 in the alternative, as a representative habeas action pursuant to a procedure analogous 7 to that provided in Rules 23(a) and 23(b)(2). See Rodriguez I, 591 F.3d at 1126 8 (allowing this case to proceed as a class action habeas petition). 9 116. Petitioners represent a class of all people within the Central District of 10 California who 1) are incarcerated for longer than six months pursuant to the general 11 immigration detention statutes (i.e., 8 U.S.C. 1225(b)(1)(B)(ii), 1226(a), 1226(c), and 12 1231(a)) while their removal cases (including judicial review) remain pending and 13 the government lacks authority to effectuate their removal, and 2) have not been 14 afforded a hearing to determine whether their prolonged imprisonment is justified. 15 117. The class includes people who were present in an ICE detention facility in the 16 Central District on or after the date on which the original complaint was filed as long 17 as they had been detained by ICE for more than six months at that time, even if they 18 are no longer in the Central District 19 118. The class excludes people who have a final order of removal and no stay of that 20 removal order, such that the government has legal authority to remove them. 21 119. The class excludes juveniles who are held under the care of the Office of 22 Refugee Resettlement. It also excludes people imprisoned pursuant to a criminal 23 sentence, including individuals who complete removal proceedings and any judicial 24 review thereof while serving such sentences. 25 120. Petitioners propose that the Court also certify four sub-classes in this action, 26 corresponding to the release procedures available to each group. 27 a. Petitioners propose Mr. Farah and Mr. Abdikadir to represent a sub-class of 28 class members imprisoned after they arrived at a port of entry, requested asylum, and
24

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1 passed a credible fear interview (the “Parole” Subclass). They have no mechanism to 2 obtain their liberty other than through the discretionary parole process. Such 3 individuals are imprisoned under 8 U.S.C. 1225(b). 4 b. Petitioners propose Mr. Rodriguez, Mr. Perez Ruelas, and Mr. Cacho Castillo to 5 represent a sub-class of class members imprisoned after being apprehended within 6 the United States and receiving a bond hearing before an Immigration Judge that did 7 not provide the procedural protections Petitioners seek (the “Bond Hearing” sub8 class). Such individuals are typically imprisoned under color of 8 U.S.C. 1226(a). 9 c. Petitioners propose Mr. Rodriguez and Mr. Farias Cornejo to represent a sub10 class of class members imprisoned without any opportunity for release other than 11 through the narrow witness protection exception provided in 8 U.S.C. 1226(c) and 12 the hearing established by Matter of Joseph, 22 I&N Dec. 799 (BIA 1999) (the 13 “Mandatory” Subclass). 14 d. Petitioners propose Mr. Ayala to represent a sub-class of class members who, 15 on the government’s view, can be imprisoned without any opportunity for release 16 other than through the “Post-Order Custody Review” process (the “Post-order” 17 Subclass). Such individuals are incarcerated under color of 8 U.S.C. 1231(a) and did 18 not receive bond hearings before Immigration Judges until the Ninth Circuit’s 19 decision in Diouf v. Napolitano (Diouf II), 634 F.3d 1081 (9th Cir. 2011). 20 121. For each putative sub-class, the number of sub-class members is too large to 21 make joinder practicable. For each of them, there will likely be more than forty other 22 sub-class members in this District who, like each of the Petitioners, have been 23 imprisoned for more than six months and have not been afforded a constitutionally24 adequate hearing to determine whether their prolonged incarceration is justified. 25 Petitioners’ counsel conducted a random sampling to assess numerosity in support of 26 their Motion for Class and Subclass Certification, and at that time each subclass 27 easily met Rule 23’s numerosity requirements. See Dkt. 101-2, Exhibit 26, Decl. of 28 Jennifer Stark.
25

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1 122. The proposed class and sub-classes meet the requirements of Fed. R. Civ. Pro. 2 23(a)(2). For the class as a whole, there are several common questions of law and fact 3 in this case. These include 1) whether the government has a policy or general practice 4 of imprisoning non-citizens in removal proceedings for longer than six months while 5 their cases remain pending without providing an adequate hearing to determine 6 whether such prolonged incarceration is justified, and 2) whether this policy or 7 practice violates the Constitution. Rodriguez, 591 F.3d at 1122-24 (finding common 8 questions). 9 123. There are additional common questions of law that pertain to each subclass. 10 These include: for the Parole Subclass, whether those subclass members are entitled 11 to be free from prolonged arbitrary imprisonment under the Fifth or Eighth 12 Amendments; for the Bond Hearing Subclass, whether the bond hearing they 13 received comports with the Constitution’s procedural requirements, and in particular 14 the requirement that the government prove by clear and convincing evidence that no 15 alternative to detention can satisfy its interests in continued incarceration; for the 16 Mandatory Subclass, whether the Constitution permits their prolonged imprisonment 17 without any bond hearing based solely on their prior convictions; and for the Post18 Order Subclass, whether the Constitution permits their imprisonment without a bond 19 hearing merely because they have a removal order, notwithstanding the fact that the 20 removal order does not presently confer authority to physically remove them from the 21 United States.10 22 124. The claims of the named representative Petitioners are typical of the claims of 23 each proposed sub-class and of the class as a whole. Like all of the proposed class 24 members, the named Petitioners will have been imprisoned, pursuant to the 25
10 The class and subclasses described here are identical in scope to those certified by 26 this Court in 2011, see Dkt. 161, Order, see also Dkt. 122 at 3, Respondents’
Response to Motion for Class and Subclass Certification (Respondents’ brief 27 conceding certification appropriate for constitutional as well as statutory claims),
except that the “Parole Subclass” as now defined does not include lawful permanent 28 residents returning from brief travel abroad. See 8 U.S.C. 1225(b)(2)(A).
26

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1 government’s policy and practice, for at least six months without having been

2 afforded an adequate hearing where the government has shown that their prolonged

3 incarceration is warranted. Rodriguez I, 591 F.3d at 1022-24.

4 125. The named Petitioners will fairly and adequately represent the interests of all

5 members of the proposed class and sub-classes because they seek relief identical to

6 the relief sought by all class members, and because they have no interests adverse to

7 other class members. Moreover, the named Petitioners are represented by pro bono

8 counsel from the ACLU of Southern California, the ACLU Immigrants’ Rights

9 Project, the Stanford Law School Immigrants’ Rights Clinic, and the law firm of

10 Sidley Austin LLP. These organizations and the attorneys working for them have

11 extensive experience litigating on behalf of imprisoned immigrants, including in class

12 actions. They have ably represented this class for over twelve years.

13 126. Respondents have acted on grounds generally applicable to the class and to

14 each subclass through their policy and practice of imprisoning non-citizens in

15 removal proceedings for longer than six months without providing an adequate

16 hearing where the government has shown that their prolonged incarceration is

17 justified, making class-wide declaratory and injunctive relief appropriate.

18

LEGAL BACKGROUND

19 127. Petitioners argue that the government may not imprison them under color of the

20 immigration laws for longer than six months without showing at an adequate hearing

21 that their prolonged incarceration is justified. Petitioners make this argument on

22 constitutional grounds.

23 128. “Freedom from imprisonment -- from government custody, detention, or other

24 forms of physical restraint -- lies at the heart of the liberty that [the Due Process]

25 Clause protects.” Zadvydas, 533 U.S. at 690. For this reason, detention must always

26 be reasonable in relation to its purpose. Jackson v. Indiana, 406 U.S. 715, 738

27 (1972). See also Demore, 538 U.S. at 527-29 (applying “reasonable relation” test).

28 129. In the immigration context, the primary purpose of detention is to effect the

27

Case 2:07-cv-03239-TJH-RNB Document 515 Filed 07/11/19 Page 30 of 36 Page ID #:10012
1 alien’s deportation in the event that removal proceedings are finally concluded in the 2 government’s favor. Zadvydas, 533 U.S. at 699 (holding that the “statute’s basic 3 purpose” is “to assure the alien’s presence at the moment of removal”); Demore, 538 4 U.S. at 528 (upholding brief mandatory detention pending completion of removal 5 proceedings because it “serves the purpose of preventing deportable criminal aliens 6 from fleeing prior to or during their removal proceedings.”). 7 130. Because Petitioners and other class members suffer lengthy civil confinement, 8 they must be afforded rigorous procedures to ensure that their imprisonment remains 9 justified. Zadvydas, 533 U.S. at 690-92 (noting “serious” constitutional problem with 10 prolonged and indefinite civil detention unless “limited to specially dangerous 11 individuals and subject to strong procedural protections”) (emphasis added); Casas12 Castrillon, 535 F.3d at 950 (holding that “prolonged detention without adequate 13 procedural protections would raise serious constitutional concerns” and therefore that 14 “due process requires adequate procedural protections to ensure that the government's 15 asserted justification for physical confinement outweighs the individual’s 16 constitutionally protected interest in avoiding physical restraint.”) (citing Zadvydas). 17 131. With respect to what procedures are required for a hearing to be adequate to 18 justify prolonged incarceration, the government must at a minimum provide advance 19 notice to the prisoner and then provide a transcribed hearing before an immigration 20 judge where it bears the burden to show by “clear and convincing” evidence that “no 21 conditions of release” are sufficient to protect the government’s interests in 22 preventing flight and danger. See Cooper v. Oklahoma, 517 U.S. 348, 363 (1996) 23 (“due process places a heightened burden of proof on the State in civil proceedings in 24 which the individual interests at stake . . . are both particularly important and more 25 substantial than mere loss of money.”) (internal quotations omitted); Foucha v. 26 Louisiana, 504 U.S. 71 (1992) (requiring “clear and convincing evidence” for 27 commitment of insanity acquittee beyond length of permissible sentence); United 28 States v. Salerno, 481 U.S. 739, 750 (1987) (recognizing that the “no conditions of
28

Case 2:07-cv-03239-TJH-RNB Document 515 Filed 07/11/19 Page 31 of 36 Page ID #:10013
1 release” standard strikes appropriate balance of interests). In addition, the 2 Immigration Judge must specifically consider the viability of alternatives to 3 detention, including intensive supervision programs. And the hearing must require a 4 heightened showing based on the length of confinement at issue. Where a class 5 member has been incarcerated for a long period of time and proceedings may not end 6 soon, the government must make more of a showing to justify continued 7 confinement. United States v. Accetturo, 783 F.2d 382, 388 (3d Cir. 1986) (stating in 8 pre-trial detention context that “[i]n some cases, the evidence admitted at the initial 9 detention hearing, evaluated against the background of the duration of pretrial 10 incarceration and the causes of that duration, may no longer justify detention.”); 11 Tijani v. Willis, 430 F. 3d 1241, 1242 (9th Cir. 2005) (ordering bond hearing where 12 government bore burden of proof in part because the “forseeable process [for 13 resolution of Petitioner’s removal case] in this Court” was “a year of more”). And 14 where a class member has been imprisoned for an additional six months, due process 15 requires an additional periodic hearing, because the showing required to incarcerate 16 someone for six months may not suffice to incarcerate them for six years. Cf. 17 Zadvydas, 533 U.S. at 701 (“for detention to remain reasonable, as the period of prior 18 postremoval confinement grows, what counts as the "reasonably foreseeable future" 19 conversely would have to shrink”).11 20 132. Respondents’ prolonged incarceration of Petitioners also violates the Eighth 21 Amendment. Jurists have long recognized that absolute denial of a bail hearing 22 23 11 This Court ordered hearings that largely comported with these requirements when it 24 granted the preliminary injunction in this case. Dkt. 255, aff’d by Rodriguez II, 715
F.3d at 1127. See also Order Granting Motion for Preliminary Injunction, Martinez v. 25 Gonzales, CV06-7609 (C.D. Cal. January 4, 2007) (ordering government to release 26 detainee unless “the government shows by clear and convincing evidence that he is a
sufficient danger or risk of flight to justify his detention in light of how long he has 27 been detained already and the likelihood of his case being finally resolved in favor of 28 the government in the reasonably foreseeable future.”).
29

Case 2:07-cv-03239-TJH-RNB Document 515 Filed 07/11/19 Page 32 of 36 Page ID #:10014

1 violates the right and renders the clause meaningless. See Jennings, 138 S. Ct. at 862

2 (Breyer, J., dissenting) (“The Eighth Amendment forbids ‘[e]xcessive bail.’ . . . That

3 rationale applies a fortiori to a refusal to hold any bail hearing at all.”);12 Sellers v.

4 United States, 89 S. Ct. 36, 38 (1968) (Black, J., in chambers) (“The command of the

5 Eighth Amendment that ‘Excessive bail shall not be required’ at the very least

6 obligates judges passing upon the right to bail to deny such relief only for the

7 strongest of reasons.”); Castañeda v. Souza, 810 F.3d 15, 44 (1st Cir. 2015) (en banc)

8 (Torruella, J., concurring) (§ 1226(c) detention is “ongoing, institutionalized

9 infringement of the right to bail”).

10 133. The history of the Excessive Bail Clause confirms that the Bill of Rights

11 requires a judicial determination regarding bail, and that it applies in deportation

12 cases. See Caleb Foote, The Coming Constitutional Crisis in Bail: I, 113 U. Pa. L.

13 Rev. 959, 969 (1965) (An interpretation that Congress may categorically deny access

14 to bail proceedings “would constitute an anomaly in the American Bill of Rights . .

15 .”); Kayla Gassman, Unjustified Detention: The Excessive Bail Clause in Removal

16 Proceedings, American University Criminal Law Brief 4, no. 1 (2009): 35-50

17 (concluding that the history of the Excessive Bail Clause renders it applicable to

18 immigration detention).

19 134. Therefore, absent the provision of constitutionally-adequate bond hearings, the

20 government’s incarceration of Petitioners and other class members violates the

21 Constitution.

22

FIRST CAUSE OF ACTION

23

Violation of Immigration and Nationality Act and Regulations

24 135. Petitioners reallege and incorporate by reference each and every allegation

25 contained in the preceding paragraphs as if set forth fully herein.

26 136. Respondents’ continued detention of Petitioners and other putative class

27 12 Though Justice Breyer’s remarks were in dissent, they addressed a constitutional
28 question that the majority did not reach.

30

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1 members under the general immigration detention statutes violates the Immigration

2 and Nationality Act, insofar as the statutes under which they are detained do not

3 authorize detention for a prolonged period of time absent an adequate hearing at

4 which the government shows that their detention remains justified.13

5

SECOND CAUSE OF ACTION

6

Violation of Fifth Amendment Due Process

7

(Right to a Custody Hearing)

8 137. Petitioners reallege and incorporate by reference each and every allegation

9 contained in the preceding paragraphs as if set forth fully herein.

10 138. Respondents’ continued imprisonment of Petitioners and other class members

11 without an adequate hearing where the government shows that their prolonged

12 incarceration remains justified violates the right to be free of prolonged non-criminal

13 detention without adequate justification and sufficient procedural safeguards, as

14 guaranteed by the Due Process Clause of the Fifth Amendment to the United States

15 Constitution.

16

THIRD CAUSE OF ACTION

17

Violation of Fifth Amendment Due Process

18

(Right to Procedural Protections at Custody Hearings)

19 139. Petitioners reallege and incorporate by reference each and every allegation

20 contained in the preceding paragraphs as if set forth fully herein.

21 140. Respondents’ continued imprisonment of Petitioners and other class members

22 without an adequate hearing where the government shows that their prolonged

23 incarceration remains justified violates the right to be free of prolonged non-criminal

24 detention without adequate justification and sufficient procedural safeguards, as

25 guaranteed by the Due Process Clause of the Fifth Amendment to the United States

26 Constitution.

27 13 The Supreme Court has rejected this claim as to all but the Post-Order Custody
28 Review sub-class. Jennings v. Rodriguez, 138 S.Ct. 830 (2018).

31

Case 2:07-cv-03239-TJH-RNB Document 515 Filed 07/11/19 Page 34 of 36 Page ID #:10016

1 141. The Due Process Clause requires that Class members imprisoned for longer than

2 six months receive bond hearings periodically, each six months, where the

3 government bears the burden of proof by clear and convincing evidence, and that

4 such hearings be recorded for transcription.

5

FOURTH CAUSE OF ACTION

6

Violation of Eighth Amendment Right to Bail

7 142. Petitioners reallege and incorporate by reference each and every allegation

8 contained in the preceding paragraphs as if set forth fully herein.

9 143. Respondents’ continued imprisonment of Petitioners and other class members

10 without an adequate hearing where the government shows that their prolonged

11 incarceration remains justified violates the right to bail as guaranteed by the Eighth

12 Amendment to the United States Constitution.

13

PRAYER FOR RELIEF

14

WHEREFORE, Petitioners respectfully request that the Court grant the

15 following relief:

16 a. Assume jurisdiction of this matter and issue declaratory and injunctive relief as

17 follows:

18

1. Certify a class and sub-classes as appropriate under Fed. R. Civ. Pro. 23

19 (or other analogous procedures), as defined above;

20

2. Appoint Petitioners as representatives of the class and subclasses;

21

3. Appoint Petitioners’ Counsel as Counsel for the Class and each subclass;

22

4. Order Respondents to provide, after giving notice, individual hearings

23

before an immigration judge for Petitioners and each member of the

24

class, at which Respondents will bear the burden to prove by clear and

25

convincing evidence that no reasonable conditions will ensure the

26

detainee’s presence in the event of removal and protect the community

27

from danger, despite the prolonged length of confinement at issue; to

28

provide such hearings every six months for so long as individuals remain

32

Case 2:07-cv-03239-TJH-RNB Document 515 Filed 07/11/19 Page 35 of 36 Page ID #:10017

1

class members; and to record those hearings for transcription;

2

5. Declare that Respondents’ failure to provide Petitioners and other class

3

members with adequate hearings violates the Immigration and

4

Nationality Act and the Due Process Clause of the Fifth Amendment and

5

the Right to Bail under the Eighth Amendment;

6

6. Enjoin Respondents from failing to provide Petitioners and each member

7

of the Class, upon notice, with adequate hearings before an immigration

8

judge (as specified above in this Prayer);

9

7. Grant Petitioners reasonable attorneys’ fees, costs, and other

10

disbursements pursuant to the Equal Access to Justice Act, 28 U.S.C.

11

2412;

12

8. Grant such other relief as the Court deems just and equitable.

13 b.

Alternatively, assume jurisdiction over this matter and issue habeas

14 relief, as follows:

15

1. Grant the writ of habeas corpus;

16

2. Certify a class and sub-classes as appropriate under Fed. R. Civ. Pro. 23

17 or other analogous procedures for representative habeas litigation, as defined above;

18

3. Order the release of Petitioners and all class members unless

19 Respondents provide, after giving notice, individual hearings before an immigration

20 judge for Petitioners and each member of the class every six months, at which

21 Respondents will bear the burden to prove by clear and convincing evidence that no

22 reasonable conditions will ensure the detainee’s presence in the event of removal

23 and protect the community from danger, despite the prolonged length of

24 confinement at issue; and unless those hearings are recorded for transcription;

25

4. Grant Petitioners reasonable attorneys’ fees, costs, and other

26 disbursements pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412;

27

28

33

Case 2:07-cv-03239-TJH-RNB Document 515 Filed 07/11/19 Page 36 of 36 Page ID #:10018

1

5. Grant such other relief as the Court deems just pursuant to its authority in

2 habeas corpus or otherwise.

3

Respectfully submitted,

4

ACLU OF SOUTHERN CALIFORNIA

5 Dated: May 20, 2019
6
7

By: /s/ Ahilan T. Arulanantham_____ AHILAN T. ARULANANTHAM Counsel for Petitioners

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

34

 
 Case 2:07-cv-03239-TJH-RNB Document 495 Filed 11/19/18 Page 1 of 8 Page ID #:9859

FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FILED
NOV 19 2018
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

ALEJANDRO RODRIGUEZ, for himself and on behalf of a class of similarly-situated individuals; ABDIRIZAK ADEN FARAH, for himself and on behalf of a class of similarly-situated individuals; JOSE FARIAS CORNEJO; YUSSUF ABDIKADIR; ABEL PEREZ RUELAS,
Petitioners-Appellees/ Cross-Appellants,

Nos. 13-56706 13-56755
D.C. No. 2:07-cv-03239-TJH-RNB
ORDER

and

EFREN OROZCO,

Petitioner,

v.

DAVID MARIN, Field Office Director, Los Angeles District, Immigration and Customs Enforcement; KIRSTJEN NIELSEN, Secretary, Homeland Security; MATTHEW G. WHITAKER, Acting Attorney General; WESLEY LEE, Assistant Field Office Director, Immigration and Customs Enforcement; RODNEY PENNER, Captain, Mira Loma Detention Center; SANDRA HUTCHENS, Sheriff of Orange County; NGUYEN, Officer, Officer-in-Charge, Theo Lacy Facility; DAVIS NIGHSWONGER, Captain, Commander, Theo Lacy Facility; MIKE KREUGER, Captain, Operations Manager, James A. Musick Facility;

Case 2:07-cv-03239-TJH-RNB Document 495 Filed 11/19/18 Page 2 of 8 Page ID #:9860
ARTHUR EDWARDS, Officer-in-Charge, Santa Ana City Jail; RUSSELL DAVIS, Jail Administrator, Santa Ana City Jail; JAMES MCHENRY, Director, Executive Office for Immigration Review,
Respondents-Appellants/ Cross-Appellees.
On Remand From The United States Supreme Court Argued and Submitted October 29, 2018 Pasadena, California
Before: Kim McLane Wardlaw and Ronald M. Gould, Circuit Judges, and Sam E. Haddon,* District Judge.
In Jennings v. Rodriguez, 138 S. Ct. 830 (2018), the Supreme Court held that we misapplied the canon of constitutional avoidance to hold that certain immigration detention statutes, namely 8 U.S.C. §§ 1225(b), 1226(a), and 1226(c), implicitly contain a reasonableness determination after which due process concerns require that persons in prolonged mandatory detention are entitled to individualized bond hearings and possibly, conditional release. Although the Court sought and received briefing on the straightforward constitutional question, i.e. without the implicit requirement of due process for persons in arbitrary prolonged detention, whether these detention statutes are constitutional, it declined
* The Honorable Sam E. Haddon, United States District Judge for the District of Montana, sitting by designation.
2

Case 2:07-cv-03239-TJH-RNB Document 495 Filed 11/19/18 Page 3 of 8 Page ID #:9861
to reach the constitutional question. The Court instead chose to answer only the question whether the statutory text itself included a limit on prolonged detention or a requirement of individual bond hearings. In an opinion authored by Justice Alito, the Court concluded that as a matter of statutory construction, the only exceptions to indefinite detention were those expressly set forth in the statutes or related regulations. See 8 U.S.C. § 1182(d)(5)(A) (humanitarian parole); 8 U.S.C. § 1226(a)(2)(A) (bond); 8 U.S.C. § 1226(c)(2) (witness protection); 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1) (bond hearing).
The Court then remanded the constitutional issues to our court, and we now, taking our cue from it, likewise remand this case to the district court, which
had no occasion to consider [petitioners’] constitutional arguments on their merits. Consistent with our role as “a court of review, not of first view,” we do not reach those arguments. Instead, we remand the case to the [district court] to consider them in the first instance. Rodriguez, 138 S. Ct. at 851 (citation omitted). The Court also decided to give us some homework on issues not raised by the parties, asking us to reexamine whether the class should remain certified for consideration of the constitutional issues and available class remedies and whether a Rule 23(b)(2) class action remains the appropriate vehicle in light of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), and as a means for resolving petitioners’ due process clause claims. The composition of the various subclasses may also require reconsideration. Because district courts have vastly more
3

Case 2:07-cv-03239-TJH-RNB Document 495 Filed 11/19/18 Page 4 of 8 Page ID #:9862
experience with class litigation than appellate courts, we also remand these questions to the district court to be decided in the first instance.
For purposes of this analysis, the district court should determine “the minimum requirements of due process” for each subclass. Morrissey v. Brewer, 408 U.S. 471, 488–89 (1972) (requiring specific procedural protections in the context of parole revocations). Although due process is a “flexible” concept, id. at 481, certainly no process at all may be a common characteristic of each of the statutes at issue. “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotation marks and citation omitted). The district court should also reassess and reconsider both the clear and convincing evidence standard and the six-month bond hearing requirement.
We need not remand the question of jurisdiction over this habeas claim, as it is clear that we have jurisdiction over petitioners’ claims, as does the district court. First, we have jurisdiction under 8 U.S.C. § 1252(f)(1), which states that “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of [§§ 1221–1232], other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.” All of the individuals in the putative class are “individual[s] against whom proceedings under such part have been initiated” and are pursuing
4

Case 2:07-cv-03239-TJH-RNB Document 495 Filed 11/19/18 Page 5 of 8 Page ID #:9863
habeas claims, albeit as a class, which nowhere appear affected by § 1252(f)(1). The statute does not on its face bar class actions, and even if Reno v. AmericanArab Anti-Discrimination Committee forecloses the argument that § 1252(f)(1) allows classwide injunctive relief, it does not affect classwide declaratory relief. 525 U.S. 471, 481 (1999). Section 1252(f)(1) also does not bar the habeas class action because it lacks a clear statement repealing the court’s habeas jurisdiction.1 I.N.S. v. St. Cyr, 533 U.S. 289, 298 (2001) (relying on “the longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction” (citation omitted)).
Second, 8 U.S.C. § 1252(b)(9) does not preclude jurisdiction. Section 1252(b)(9) restricts “[j]udicial review of all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien,” except review of final orders of removal. Here, Petitioners “are not asking for review of an order of removal; they are not challenging the decision to detain them in the first place or to
1 The district court must decide in the first instance whether § 1252(f)(1) precludes classwide injunctive relief, and if so, whether the availability of declaratory relief only can sustain the class. Rodriguez, 138 S. Ct. at 851. The district court must also consider whether a declaration that the detention statutes are unconstitutional because they contain no process for seeking bail is an injunction or restraint on the operation of the detention statutes. 8 U.S.C. § 1252(f)(1).
5

Case 2:07-cv-03239-TJH-RNB Document 495 Filed 11/19/18 Page 6 of 8 Page ID #:9864
seek removal; and they are not even challenging any part of the process by which their removability will be determined.” Rodriguez, 138 S. Ct. at 841.
Finally, 8 U.S.C. § 1226(e) does not preclude jurisdiction. Section 1226(e) prohibits judicial review of the Attorney General’s “discretionary judgment,” “action,” or “decision” regarding the apprehension, detention, or release of a noncitizen. Here, “contesting the constitutionality of the entire statutory scheme under the Fifth Amendment . . . is not a matter of discretionary judgment, action, or decision” and thus “falls outside of the scope of § 1226(e).” Rodriguez, 138 S. Ct. at 841 (internal quotation marks omitted).
Like the Supreme Court, we do not vacate the permanent injunction pending the consideration of these vital constitutional issues. We have grave doubts that any statute that allows for arbitrary prolonged detention without any process is constitutional or that those who founded our democracy precisely to protect against the government’s arbitrary deprivation of liberty would have thought so. Arbitrary civil detention is not a feature of our American government. “[L]iberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987). Civil detention violates due process outside of “certain special and narrow nonpunitive
6

Case 2:07-cv-03239-TJH-RNB Document 495 Filed 11/19/18 Page 7 of 8 Page ID #:9865
circumstances.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (internal quotation marks and citation omitted). As Justice Breyer wrote in Rodriguez,
The Fifth Amendment says that “[n]o person shall be . . . deprived of life, liberty, or property without due process of law.” An alien is a “person.” To hold him without bail is to deprive him of bodily “liberty.” And, where there is no bail proceeding, there has been no bail-related “process” at all. The Due Process Clause—itself reflecting the language of the Magna Carta—prevents arbitrary detention. 138 S. Ct. at 861 (Breyer, J., dissenting) (alteration in original) (citations omitted).2 In conclusion, we therefore remand with instructions to the district court to consider and determine: (1) whether the class certified by the district court should remain certified for consideration of the constitutional issue and available class remedies; (2) whether classwide injunctive relief is available under 8 U.S.C. § 1252(f)(1); (3) whether a Rule 23(b)(2) class action (a) remains the appropriate vehicle in light of Walmart Stores, Inc. v. Duke, 564 U.S. 338 (2011), and (b) whether such a class action is appropriate for resolving Petitioners’ due process claims; (4) whether composition of the previously identified subclasses should be reconsidered; (5) the minimum requirements of due process to be accorded to all claimants that will ensure a meaningful time and manner of opportunity to be
2 By referencing the issues spotted by the Rodriguez majority, we do not intend to restrict the district court from considering any other relevant issue, such as the scope of remedies available to the subclasses if the court should find a constitutional violation.
7

Case 2:07-cv-03239-TJH-RNB Document 495 Filed 11/19/18 Page 8 of 8 Page ID #:9866
heard; and (6) a reassessment and reconsideration of both the clear and convincing evidence standard and the six-month bond hearing requirement.
REMANDED.
8

 
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Case 2:07-cv-03239-TJH-RNB Document 527 Filed 11/07/19 Page 2 of 5 Page ID #:10082

1 Cir. 2010) [“Rodriguez I”]. On April 5, 2010, in light of Rodriguez I, this Court

2 certified the class as “all non-citizens within the Central District of California who: (1)

3 Are or were detained for longer than six months pursuant to one of the general

4 immigration detention statutes pending completion of removal proceedings, including

5 judicial review; (2) Are not and have not been detained pursuant to a national security

6 detention statute; and (3) Have not been afforded a hearing to determine whether their

7 detention is justified.”

8

Petitioners, then, sought a preliminary injunction, which this Court granted, and

9 the Ninth Circuit affirmed. See Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013)

10 [“Rodriguez II”]. Petitioners, then, moved for summary judgment and sought a

11 permanent injunction, which this Court granted, and the Ninth Circuit affirmed in part

12 and reversed in part. See Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015)

13 [“Rodriguez III”]. The Ninth Circuit held that summary judgment and a permanent

14 injunction were warranted as to three of Petitioner’s statutory claims and subclasses,

15 but reversed as to Petitioners’ 8 U.S.C. § 1231(a) claim and subclass. See Rodriguez

16 III, 804 F.3d at 1090. The Ninth Circuit reasoned that the class was certified only as

17 to those individuals who were detained while waiting for a determination as to their

18 potential removability, whereas § 1231(a) dealt with those whom the Government had

19 already deemed removable and were merely waiting to be removed. Rodriguez III, 804

20 F.3d at 1085-1086. The Government sought a writ of certiorari, which was granted.

21

The Supreme Court reversed Rodriguez III and remanded this case to the Ninth

22 Circuit to consider whether the class may continue based on Petitioners’ constitutional

23 claims. See Jennings v. Rodriguez, 138 S. Ct. 830 (2018). Notably, the issue of

24 whether Petitioners’ § 1231(a) claim and subclass were properly rejected by the Ninth

25 Circuit was not appealed by Rodriguez and, therefore, never before the Supreme Court.

26 The Ninth Circuit remanded the action to this Court for further proceedings.

27

Although neither the Supreme Court nor the Ninth Circuit expressly vacated the

28 permanent injunction, the Supreme Court implicitly did so because it reversed as to the

Order – Page 2 of 5

Case 2:07-cv-03239-TJH-RNB Document 527 Filed 11/07/19 Page 3 of 5 Page ID #:10083

1 merits on summary judgment. See Paige v. State of Cal., 102 F.3d 1035, 1040 (9th

2 Cir. 1996). However, the preliminary injunction remains in place.

3

On July 11, 2019, Petitioners filed a Fourth Amended Complaint [“FAC”]

4 which, inter alia: (1) Added a new petitioner, Alex Cacho Castillo, who was detained

5 at the beginning of 2019, and released by May, 2019; (2) Reasserted a claim under §

6 1231(a); and (3) Added an Eighth Amendment claim.

7

Respondents, now, move to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and (6).

8

The party seeking federal jurisdiction bears the burden of establishing that

9 jurisdiction exists. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986). A complaint

10 will be dismissed under Fed. R. Civ. P. 12(b)(1) if, inter alia, there is no case or

11 controversy. See Baker v. Carr, 369 U.S. 186, 198 (1962).

12

While a complaint need not include detailed factual allegations for each element

13 of each claim, it must contain enough facts to state a claim for relief that is plausible

14 on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). The Court

15 must accept all allegations in a complaint as true and draw all reasonable inferences

16 from those allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff

17 cannot simply restate the elements of her claim, but, rather, must allege enough facts

18 to allow the Court to draw a reasonable inference that a defendant is liable for the

19 misconduct alleged. See Iqbal, 556 U.S. at 678.

20

Respondents argued that because Cacho Castillo was detained for less than 6

21 months, he cannot serve as a named petitioner or be a member of this class.

22 Respondents are correct. Given the class definition, Cacho Castillo was, indeed,

23 misjoined. See Fed. R. Civ. P. 20(a)(1). Petitioners argued that because the Board of

24 Immigration Appeals opinion that allowed for Cacho Castillo’s release may have been

25 recently overturned, the Government may, at any time, cause him to be detained,

26 again. According to Petitioners, Cacho Castillo “likely would become” a class member

27 in the near future. The possibility of future injury is too speculative, here, to make

28 Cacho Castillo’s claims ripe for adjudication. See Wolfson v. Brammer, 616 F.3d

Order – Page 3 of 5

Case 2:07-cv-03239-TJH-RNB Document 527 Filed 11/07/19 Page 4 of 5 Page ID #:10084

1 1045, 1057 (9th Cir. 2010). Because Cacho Castillo failed to allege a case or

2 controversy ripe for adjudication, he must be dismissed. See Baker, 369 U.S. at 198.

3

Respondents, further, argued that Petitioners’ are barred from reasserting a

4 claim, here, under § 1231(a) in light of Rodriguez III and the Supreme Court’s holding

5 in Jennings. Indeed, the Ninth Circuit reversed this Court’s grant of summary

6 judgment on Petitioners’ § 1231(a) claim and held that the § 1231(a) claim and subclass

7 “does not exist” within this action. See Rodriguez III, 804 F.3d at 1090. Nevertheless,

8 Petitioners argued that the § 1231(a) claim can move forward because the Ninth

9 Circuit’s decision in Rodriguez III was incorrectly decided because it is inconsistent

10 with a prior Ninth Circuit case, Diouf v. Napolitano, 634 F.3d 1081, 1091 (9th Cir.

11 2011). Petitioners’ argument is misplaced. If Petitioners thought that the Ninth Circuit

12 erred in deciding Rodriguez III, they should have petitioned the Ninth Circuit for

13 reconsideration or a hearing en banc, or sought review from the Supreme Court.

14 Rodriguez III is the law of the case to the extent that it resolved Petitioners’ § 1231(a)

15 claim and subclass, and Petitioners cannot reassert their § 1231(a) claim, here, where

16 Rodriguez III so clearly resolved that claim. See Rodriguez III, 804 F.2d at 1080.

17

Respondents, finally, argued that this Court lacks subject matter jurisdiction over

18 Petitioners’ newly alleged Eighth Amendment claim because the new claim exceeded

19 the scope of the Supreme Court’s remand in Jennings. The Supreme Court’s remand

20 and its corresponding instructions were addressed to the Ninth Circuit, not to this

21 Court. Indeed, this Court is not limited to the scope set forth by the Supreme Court

22 to the Ninth Circuit, especially when the Ninth Circuit’s subsequent remand to this

23 Court expressly instructed this Court to consider, inter alia, “any other relevant issue.”

24

25

Accordingly,

26

27

It is Ordered that the motion to dismiss be, and hereby is, Granted as to

28 Petitioner Alex Cacho Castillo and Petitioners’ § 1231 claim.

Order – Page 4 of 5

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 Case 2:07-cv-03239-TJH-RNB Document 547 Filed 03/09/20 Page 1 of 4 Page ID #:10482

Case 2:07-cv-03239-TJH-RNB Document 547 Filed 03/09/20 Page 2 of 4 Page ID #:10483

1 Are or were detained for longer than six months pursuant to one of the general

2 immigration detention statutes pending completion of removal proceedings, including

3 judicial review; (2) Are not and have not been detained pursuant to a national security

4 detention statute; and (3) Have not been afforded a hearing to determine whether their

5 detention is justified.”

6

Petitioners, then, sought a preliminary injunction, which this Court granted, and

7 the Ninth Circuit affirmed. See Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013)

8 [“Rodriguez II”]. Petitioners, then, moved for summary judgment and sought a

9 permanent injunction, which this Court granted, and the Ninth Circuit affirmed in part

10 and reversed in part. See Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015)

11 [“Rodriguez III”]. The Ninth Circuit held that summary judgment and a permanent

12 injunction were warranted as to three of Petitioner’s statutory claims and subclasses,

13 but reversed as to Petitioners’ 8 U.S.C. § 1231(a) claim and subclass. See Rodriguez

14 III, 804 F.3d at 1090. The Ninth Circuit reasoned that the class was certified only as

15 to those individuals who were detained while waiting for a determination as to their

16 potential removability, whereas § 1231(a) dealt with those whom the Government had

17 already deemed removable and were merely waiting to be removed. Rodriguez III, 804

18 F.3d at 1085-1086. The Government sought a writ of certiorari, which was granted.

19

The Supreme Court reversed Rodriguez III and remanded this case to the Ninth

20 Circuit to consider whether the class may continue based on Petitioners’ constitutional

21 claims. See Jennings v. Rodriguez, 138 S. Ct. 830 (2018). Notably, the issue of

22 whether Petitioners’ § 1231(a) claim and subclass were properly rejected by the Ninth

23 Circuit was not appealed by Rodriguez and, therefore, never before the Supreme Court.

24 The Ninth Circuit remanded the action to this Court for further proceedings, and left

25 this Court’s permanent injunction in place “[ending the consideration of vital

26 constitutional issues.”

27

On July 11, 2019, Petitioners filed a Fourth Amended Complaint [“FAC”]

28 which, inter alia: (1) Added a new petitioner, Alex Cacho Castillo, who was detained

Amended Order – Page 2 of 4

Case 2:07-cv-03239-TJH-RNB Document 547 Filed 03/09/20 Page 3 of 4 Page ID #:10484

1 at the beginning of 2019, and released by May, 2019; (2) Reasserted a claim under §

2 1231(a); and (3) Added an Eighth Amendment claim.

3

Respondents, now, move to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and (6).

4

The party seeking federal jurisdiction bears the burden of establishing that

5 jurisdiction exists. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986). A complaint

6 will be dismissed under Fed. R. Civ. P. 12(b)(1) if, inter alia, there is no case or

7 controversy. See Baker v. Carr, 369 U.S. 186, 198 (1962).

8

While a complaint need not include detailed factual allegations for each element

9 of each claim, it must contain enough facts to state a claim for relief that is plausible

10 on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). The Court

11 must accept all allegations in a complaint as true and draw all reasonable inferences

12 from those allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff

13 cannot simply restate the elements of her claim, but, rather, must allege enough facts

14 to allow the Court to draw a reasonable inference that a defendant is liable for the

15 misconduct alleged. See Iqbal, 556 U.S. at 678.

16

Respondents argued that because Cacho Castillo was detained for less than 6

17 months, he cannot serve as a named petitioner or be a member of this class.

18 Respondents are correct. Given the class definition, Cacho Castillo was, indeed,

19 misjoined. See Fed. R. Civ. P. 20(a)(1). Petitioners argued that because the Board of

20 Immigration Appeals opinion that allowed for Cacho Castillo’s release may have been

21 recently overturned, the Government may, at any time, cause him to be detained,

22 again. According to Petitioners, Cacho Castillo “likely would become” a class member

23 in the near future. The possibility of future injury is too speculative, here, to make

24 Cacho Castillo’s claims ripe for adjudication. See Wolfson v. Brammer, 616 F.3d

25 1045, 1057 (9th Cir. 2010). Because Cacho Castillo failed to allege a case or

26 controversy ripe for adjudication, he must be dismissed. See Baker, 369 U.S. at 198.

27

Respondents, further, argued that Petitioners’ are barred from reasserting a

28 claim, here, under § 1231(a) in light of Rodriguez III and the Supreme Court’s holding

Amended Order – Page 3 of 4

Case 2:07-cv-03239-TJH-RNB Document 547 Filed 03/09/20 Page 4 of 4 Page ID #:10485

 
 Case 2:07-cv-03239-TJH-RNB Document 555 Filed 05/28/20 Page 1 of 5 Page ID #:10537

1

2

3

4

5

6

7

8

United States District Court

9

Central District of California

10

Western Division

11

12 ALEJANDRO RODRIGUEZ, et al.,

13

Petitioners,

14

v.

15 DAVID MARIN, et al.,

16

Respondents.

17

CV 07-03239 TJH (SPx)
Order

18

19

The Court has considered Respondents’ motion to vacate the preliminary

20 injunction and decertify the class [dkt # 533] and Respondents’ motion for

21 reconsideration of the Court’s March 9, 2020, order granting Petitioners’ motion for

22 reconsideration and to vacate the permanent injunction [dkt # 550], together with the

23 moving and opposing papers.

24

This case has been pending for 13 years and, at this point, has a very complex

25 substantive and procedural history. The complexity is due, at least in part, to the fact

26 that this case has ricocheted among this Court, the Ninth Circuit Court of Appeals, and

27 the United States Supreme Court.

28

In response to the instant motions, the Court has reviewed the entire record and,

Order – Page 1 of 5

Case 2:07-cv-03239-TJH-RNB Document 555 Filed 05/28/20 Page 2 of 5 Page ID #:10538

1 in particular, the orders issued by this Court, the Ninth Circuit, and the Supreme Court.

2 Based on those orders, this case has been placed in a complicated, and unusual,

3 procedural posture.

4

The Court will, now, attempt to reconcile those orders so that this case can move

5 forward toward a final resolution. In reconciling those orders, the Court cannot

6 overrule the orders issued by the Ninth Circuit or the Supreme Court. Indeed, this

7 Court is duty bound to respect, give meaning, reconcile and apply the orders of those

8 higher courts.

9

Initially, the Court denied Petitioners’ motion for class certification as to their

10 statutory claims. The Ninth Circuit reversed, noting that certification would be proper

11 if the class were divided into subclasses. See Rodriguez v. Hayes, 591 F.3d 1105 (9th

12 Cir. 2010) [“Rodriguez I”]. On March 8, 2011, in light of Rodriguez I, this Court

13 certified the class action and defined the class as “all non-citizens within the Central

14 District of California who: (1) Are or will be detained for longer than six months

15 pursuant to the general immigration detention statutes pending completion of removal

16 proceedings, including judicial review; (2) Are not detained pursuant to a national

17 security detention statute...; and (3) Have not been afforded a hearing to determine

18 whether their prolonged detention is justified.” The Court certified four subclasses;

19 class members were divided into subclasses based on which immigration statute they

20 were detained under – 18 U.S.C. §§ 1225(b), 1226(a), 1226(c), and 1231(a).

21

Petitioners, then, sought a preliminary injunction, which this Court granted, and

22 the Ninth Circuit affirmed. See Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013)

23 [“Rodriguez II”]. Petitioners, then, moved for summary judgment and sought a

24 permanent injunction, which this Court granted, and the Ninth Circuit affirmed in part

25 and reversed in part. See Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015)

26 [“Rodriguez III”]. The Ninth Circuit held that summary judgment and the permanent

27 injunction were warranted as to three of Petitioner’s statutory claims and the

28 corresponding subclasses, but reversed as to Petitioners’ 8 U.S.C. § 1231(a) claim and

Order – Page 2 of 5

Case 2:07-cv-03239-TJH-RNB Document 555 Filed 05/28/20 Page 3 of 5 Page ID #:10539

1 the corresponding subclass. See Rodriguez III, 804 F.3d at 1090. The Government,

2 then, sought a writ of certiorari from the Supreme Court, which was granted. The

3 Supreme Court reversed Rodriguez III and remanded this case to the Ninth Circuit to

4 consider whether the class action may continue based on Petitioners’ constitutional

5 claims, which had not yet been considered by this Court. See Jennings v. Rodriguez,

6 138 S. Ct. 830 (2018) [“Jennings”]. The Supreme Court was silent as to the status of

7 the permanent injunction. On remand, the Ninth Circuit, in turn, remanded this case

8 to this Court for it to consider Petitioner’s constitutional claims; the Ninth Circuit left

9 this Court’s permanent injunction in place “pending the consideration of vital

10 constitutional issues.” See Rodriguez v. Marin, 909 F.3d 252, 256 (9th Cir. 2018)

11 [“Marin”].

12

On July 10, 2019, the Court granted Petitioners’ motion for leave to file a Fourth

13 Amended Complaint. After Petitioners filed their Fourth Amended Complaint,

14 Respondents moved to dismiss.

15

On November 7, 2019, the Court granted in part and denied in part Respondents’

16 motion to dismiss Petitioners’ Fourth Amended Complaint. That order included

17 language indicating that the Supreme Court had implicitly vacated the permanent

18 injunction in Jennings. On November 18, 2019, Petitioners moved for reconsideration

19 of the November 7, 2019, order, arguing that the Ninth Circuit expressly left in place

20 the “permanent injunction pending the consideration of... vital constitutional issues.”

21 See Marin, 909 F.3d at 256.

22

On November 27, 2019, before the Court had an opportunity to rule on

23 Petitioners’ motion for reconsideration, Respondents moved to vacate the preliminary

24 injunction.

25

On March 9, 2020, the Court granted Petitioners’ motion for reconsideration and

26 issued an amended order that, inter alia, omitted the language regarding the permanent

27 injunction, pursuant to Marin.

28

On April 7, 2020, Respondents filed a motion for reconsideration of the Court’s

Order – Page 3 of 5

Case 2:07-cv-03239-TJH-RNB Document 555 Filed 05/28/20 Page 4 of 5 Page ID #:10540

1 March 9, 2020, order and for an order vacating the permanent injunction, arguing that

2 the Court’s March 9, 2020, order, inter alia, deprived Respondents of the opportunity

3 to brief whether a permanent injunction should remain in place for the duration of the

4 proceedings in this matter. Respondents chose to file their motion to vacate the

5 preliminary injunction before the Court could rule on Petitioners’ motion for

6 reconsideration, despite knowing that the status of the permanent injunction was in

7 dispute.

8

Normally, a preliminary injunction remains in force until a case is finally

9 resolved. Here, after the Court granted summary judgment in favor of Petitioners, it

10 issued a permanent injunction, which superceded the preliminary injunction. Then, the

11 Supreme Court reversed and vacated the summary judgment. Consequently, this Court

12 initially held that the Supreme Court had implicitly vacated the permanent injunction

13 when it vacated this Court’s summary judgment. However, because the Ninth Circuit,

14 on remand from the Supreme Court, left the permanent injunction in place pending the

15 consideration of the constitutional issues, Marin, 909 F.3d at 256, this Court is

16 obligated to follow those instructions. Accordingly, Respondents’ motions for

17 reconsideration and to vacate the permanent injunction must be denied.

18

Because of the orders from the Ninth Circuit and the Supreme Court, there, now,

19 exists a procedural quagmire in that there is a permanent injunction in place without a

20 corresponding final judgment on the merits supporting that permanent injunction. Thus,

21 this Court has been entrusted with the task of fitting the proverbial round peg into the

22 square hole, while being duty bound to respect, give meaning, reconcile and apply the

23 orders of the Ninth Circuit and the Supreme Court. The most sensical resolution to this

24 procedural quagmire, while maintaining due respect for the orders of the Ninth Circuit

25 and the Supreme Court, is for this Court to deem its previously issued permanent

26 injunction to be, in effect, a preliminary injunction, which shall supercede the

27 previously issued preliminary injunction, and which shall, now, remain in place pending

28 a final resolution of Petitioners’ constitutional claims. Accordingly, Respondents’

Order – Page 4 of 5

Case 2:07-cv-03239-TJH-RNB Document 555 Filed 05/28/20 Page 5 of 5 Page ID #:10541

1 motion to vacate the preliminary injunction shall be denied as moot.

2

Finally, while considering the procedural quagmire caused by the continuation

3 of the permanent injunction, the Court simultaneously considered Respondents’ motion

4 to de-certify the class. When the Court certified this case into sub-classes, it did so

5 pursuant to Rodriguez I. Thereafter, the certification of the class permeated all aspects

6 of this case. Indeed, the Court’s original preliminary and permanent injunctions

7 ordered remedies based on class members’ membership in particular sub-classes. See

8 Rodriguez II and III. Because the Ninth Circuit ordered the permanent injunction to 9 remain in effect, the decertification of the class, at this juncture, would move this case 10 backward rather than forward. As previously stated, that is not the direction the Court

11 is attempting to move this case. Consequently, the motion to decertify the class must

12 be denied.

13

14 IT IS SO ORDERED.

15
16 Date: May 28, 2020

17

__________________________________

18

Terry J. Hatter, Jr.

19

Senior United States District Judge

20

21

22

23

24

25

26

27

28

Order – Page 5 of 5

 
 Create an Alert for This Case on RECAP (RNBx),APPEAL,CONSOLTR,DISCOVERY,LEADTR,PROTORD,RELATED-G
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Western Division - Los Angeles)
CIVIL DOCKET FOR CASE #: 2:07-cv-03239-TJH-RNB

Alejandro Rodriguez v. James Hayes et al Assigned to: Judge Terry J. Hatter, Jr Referred to: Magistrate Judge Robert N. Block Related Case: 2:04-cv-03266-TJH-RNB
Case in other court: 9TH CCA, 12-56734
9th CCA, 13-56706

Date Filed: 05/16/2007 Jury Demand: None Nature of Suit: 530 Habeas Corpus (General) Jurisdiction: U.S. Government Defendant

9th CCA, 13-56755

9th CCA, 20-55770

Cause: 28:2241 Petition for Writ of Habeas Corpus (federal)

Consol Plaintiff

Frederick Ngaywa

represented by Frederick Ngaywa A 95 722 629 PO Box 6005 Adelanto, CA 92301 BK 2597017 PRO SE

V.
Petitioner
Alejandro Rodriguez for themselves and on behalf of a class of similarly-situated individuals

represented by Adriana Betanco-Vondriska ACLU of Southern California 1313 West 8th Street Los Angeles, CA 90017 213-977-9500 Fax: 2131-977-5297 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan T Arulanantham ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 213-977-5236 Fax: 213-977-5297 Email: aarulanantham@aclu-sc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cecillia D Wang ACLU Foundation Immigrants Rights Project 39 Drumm Street San Francisco, CA 94111 415-343-0775 Email: cwang@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jayashri Srikantiah Stanford Law School Immigrants' Rights Clinic, Crown Quadrangle 559 Nathan Abbott Way. Stanford, CA 94305-8610 650-724-2442 Fax: 650-723-4426 Email: jsrikantiah@law.stanford.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Judy Rabinovitz ACLU Foundation of New York Immigrants' Rights Project 125 Broad Street 18th Floor New York, NY 10004 212-549-2618 Fax: 212-549-2654 Email: jrabinovitz@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter J Eliasberg ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 213-977-5228 Fax: 213-977-5297 Email: peliasberg@aclusocal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Kelley Washington Sidley Austin

555 West Fifth Street Suite 400 Los Angeles, CA 90013-1010 213-896-6000 TERMINATED: 11/07/2018
Cody James Jacobs Sidley Austin LLP 555 West 5th Street Suite 4000 Los Angeles, CA 90013 213-896-6636 Email: cjacobs@smartgunlaws.org TERMINATED: 07/09/2013
Fatima S Alloo ACLU of Southern California 1313 West 8th Street Los Angeles, CA 90017 213-977-9500 Fax: 213-977-5297 TERMINATED: 10/01/2012
Jennifer L Stark Stanford Law School Immigrants' Rights Clinic 559 Nathan Abbott Way Stanford, CA 94305 6507257958 Fax: 6507234426 Email: jlstark@law.stanford.edu TERMINATED: 10/01/2012
Jonathan Paul Feingold Sidley Austin LLP 555 West Fifth Street Suite 4000 Los Angeles, CA 90013-1010 213-896-6000 Fax: 213-896-6600 Email: jfeingold@sidley.com TERMINATED: 07/09/2013
Monica Ramirez Almadani Covington & Burling LLP 1999 Avenue of the Stars, Suite 3500 Los Angeles, CA 90067-4643 424-332-4800 Fax: 424-332-4749 Email: mralmadani@cov.com TERMINATED: 09/17/2010

Ranjana Natarajan University of Texas Law School Civil Rights Clinic 727 East Dean Keeton Street Austin, TX 78705 512-232-7222 Email: rnatarajan@law.utexas.edu TERMINATED: 11/14/2008
Sean A Commons Sidley Austin LLP 555 West Fifth Street Suite 4000 Los Angeles, CA 90013-1010 213-896-6010 Fax: 213-896-6600 Email: scommons@sidley.com ATTORNEY TO BE NOTICED
Steven A Ellis Los Angeles Superior Court 111 North Hill Street Los Angeles, CA 90012 Email: steven.ellis213@gmail.com TERMINATED: 11/25/2019
Wen W Shen Sidley Austin LLP 555 West Fifth Street 48th Floor Los Angeles, CA 90013 213-896-6109 Fax: 213-896-6600 Email: wen.shen@sidley.com TERMINATED: 11/07/2018
William Tran Sidley Austin 555 West Fifth Street Suite 4000 Los Angeles, CA 90013-1010 213-816-6000 TERMINATED: 11/07/2018
Zoe Nicole McKinney ACLU Foundation of Southern California 1313 West 8th Street Los Angeles, CA 90017 213-977-5244

Petitioner
Abdirizak Aden Farah for themselves and on behalf of a class of similarly-situated individuals

Fax: 213-417-2211 Email: zmckinney@aclusocal.org ATTORNEY TO BE NOTICED
Michael Bryan Kaufman ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 213-977-5232 Fax: 213-977-5297 Email: mkaufman@aclu-sc.org ATTORNEY TO BE NOTICED
Michael K T Tan ACLU Foundation Immigrants Rights Project 125 Broad Street 18th Floor New York, NY 10004 212-549-2618 Fax: 212-549-2654 Email: mtan@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Adriana Betanco-Vondriska (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan T Arulanantham ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 213-977-5211 Fax: 213-977-5297 Email: aarulanantham@aclu-sc.org ATTORNEY TO BE NOTICED
Brian Kelley Washington (See above for address) TERMINATED: 11/07/2018
Cody James Jacobs (See above for address) TERMINATED: 07/09/2013

Fatima S Alloo (See above for address) TERMINATED: 10/01/2012
Jayashri Srikantiah (See above for address) ATTORNEY TO BE NOTICED
Jennifer L Stark (See above for address) TERMINATED: 10/01/2012
Jonathan Paul Feingold (See above for address) TERMINATED: 07/09/2013
Judy Rabinovitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Sean A Commons (See above for address) ATTORNEY TO BE NOTICED
Steven A Ellis (See above for address) TERMINATED: 11/25/2019
Wen W Shen (See above for address) TERMINATED: 11/07/2018
William Tran (See above for address) TERMINATED: 11/07/2018
Zoe Nicole McKinney (See above for address) ATTORNEY TO BE NOTICED
Michael Bryan Kaufman (See above for address) ATTORNEY TO BE NOTICED

Petitioner
Jose Farias Cornejo for themselves and on behalf of a class of similarly-situated individuals

Michael K T Tan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Adriana Betanco-Vondriska (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan T Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Brian Kelley Washington (See above for address) TERMINATED: 11/07/2018
Cody James Jacobs (See above for address) TERMINATED: 07/09/2013
Fatima S Alloo (See above for address) TERMINATED: 10/01/2012
Jayashri Srikantiah (See above for address) ATTORNEY TO BE NOTICED
Jennifer L Stark (See above for address) TERMINATED: 10/01/2012
Jonathan Paul Feingold (See above for address) TERMINATED: 07/09/2013
Judy Rabinovitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED

Petitioner
Angel Armando Ayala also known as Angel Armando Amaya TERMINATED: 11/07/2018

Sean A Commons (See above for address) ATTORNEY TO BE NOTICED
Steven A Ellis (See above for address) TERMINATED: 11/25/2019
Wen W Shen (See above for address) TERMINATED: 11/07/2018
William Tran (See above for address) TERMINATED: 11/07/2018
Zoe Nicole McKinney (See above for address) ATTORNEY TO BE NOTICED
Michael Bryan Kaufman (See above for address) ATTORNEY TO BE NOTICED
Michael K T Tan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Adriana Betanco-Vondriska (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan T Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Brian Kelley Washington (See above for address) TERMINATED: 11/07/2018
Cody James Jacobs (See above for address) TERMINATED: 07/09/2013
Fatima S Alloo (See above for address)

TERMINATED: 10/01/2012
Jayashri Srikantiah (See above for address) ATTORNEY TO BE NOTICED
Jennifer L Stark (See above for address) TERMINATED: 10/01/2012
Jonathan Paul Feingold (See above for address) TERMINATED: 07/09/2013
Judy Rabinovitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Sean A Commons (See above for address) ATTORNEY TO BE NOTICED
Steven A Ellis (See above for address) TERMINATED: 11/25/2019
Wen W Shen (See above for address) TERMINATED: 11/07/2018
William Tran (See above for address) TERMINATED: 11/07/2018
Zoe Nicole McKinney (See above for address) ATTORNEY TO BE NOTICED
Michael Bryan Kaufman (See above for address) ATTORNEY TO BE NOTICED
Michael K T Tan

Petitioner
Yussuf Abdikadir for themselves and on behalf of a class of similarly-situated individuals

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Adriana Betanco-Vondriska (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan T Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Brian Kelley Washington (See above for address) TERMINATED: 11/07/2018
Cody James Jacobs (See above for address) TERMINATED: 07/09/2013
Fatima S Alloo (See above for address) TERMINATED: 10/01/2012
Jayashri Srikantiah (See above for address) ATTORNEY TO BE NOTICED
Jennifer L Stark (See above for address) TERMINATED: 10/01/2012
Jonathan Paul Feingold (See above for address) TERMINATED: 07/09/2013
Judy Rabinovitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Sean A Commons (See above for address)

Petitioner
Abel Perez Ruelas for themselves and on behalf of a class of similarly-situated individuals

ATTORNEY TO BE NOTICED
Steven A Ellis (See above for address) TERMINATED: 11/25/2019
Wen W Shen (See above for address) TERMINATED: 11/07/2018
William Tran (See above for address) TERMINATED: 11/07/2018
Zoe Nicole McKinney (See above for address) ATTORNEY TO BE NOTICED
Michael Bryan Kaufman (See above for address) ATTORNEY TO BE NOTICED
Michael K T Tan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Adriana Betanco-Vondriska (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan T Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Brian Kelley Washington (See above for address) TERMINATED: 11/07/2018
Cody James Jacobs (See above for address) TERMINATED: 07/09/2013
Fatima S Alloo (See above for address) TERMINATED: 10/01/2012

Jayashri Srikantiah (See above for address) ATTORNEY TO BE NOTICED
Jennifer L Stark (See above for address) TERMINATED: 10/01/2012
Jonathan Paul Feingold (See above for address) TERMINATED: 07/09/2013
Judy Rabinovitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
Sean A Commons (See above for address) ATTORNEY TO BE NOTICED
Steven A Ellis (See above for address) TERMINATED: 11/25/2019
Wen W Shen (See above for address) TERMINATED: 11/07/2018
William Tran (See above for address) TERMINATED: 11/07/2018
Zoe Nicole McKinney (See above for address) ATTORNEY TO BE NOTICED
Michael Bryan Kaufman (See above for address) ATTORNEY TO BE NOTICED
Michael K T Tan (See above for address) PRO HAC VICE

Petitioner Efren Orozco

ATTORNEY TO BE NOTICED
represented by Adriana Betanco-Vondriska (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan T Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Cody James Jacobs (See above for address) TERMINATED: 07/09/2013
Jayashri Srikantiah (See above for address) ATTORNEY TO BE NOTICED
Jonathan Paul Feingold (See above for address) TERMINATED: 07/09/2013
Judy Rabinovitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Bryan Kaufman (See above for address) ATTORNEY TO BE NOTICED
Michael K T Tan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sean A Commons (See above for address) ATTORNEY TO BE NOTICED
Wen W Shen (See above for address) TERMINATED: 11/07/2018
Zoe Nicole McKinney (See above for address) ATTORNEY TO BE NOTICED

Petitioner Raul Ernesto Morales TERMINATED: 07/11/2019
V. Consol Defendant Troy Lund
Consol Defendant Charles Gilkey Warden Adelanto Detention Facility V.

represented by Luis Allen Carrillo Law Offices of Luis A Carrillo 1499 Huntington Drive Suite 402 South Pasadena, CA 91030 626-799-9375 Fax: 626-799-9380 Email: lac4justice@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan T Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Michael Bryan Kaufman ACLU Foundation of Southern California 1313 West 8th Street Los Angeles, CA 90017 213-977-9500 Fax: 213-977-5297 Email: mkaufman@aclusocal.org ATTORNEY TO BE NOTICED
Zoe Nicole McKinney (See above for address) ATTORNEY TO BE NOTICED
represented by Stacey Ilene Young Department of Justice - Civil Division Office of Immigration Litigation 450 5th Street NW Room 6018 Washington, DC 20044 202-305-7171 Email: stacey.young@usdoj.gov ATTORNEY TO BE NOTICED
represented by Stacey Ilene Young (See above for address) ATTORNEY TO BE NOTICED

Respondent
Timothy Robbins Field Office Director, Los Angeles District, Immigration and Customs Enforcement Substituted for James Hayes

represented by Erez Reuveni US Department of Justice Office of Immigration Litigation - Civil Division Ben Franklin Station PO Box 868 Washington, DC 20044 202-307-4293 Fax: 202-305-7000 Email: erez.r.reuveni@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah S Wilson US Department of Justice Office of Immigration Litigation District Court Section PO Box 868 Ben Franklin Station Washington, DC 20044 202-532-4700 Fax: 202-395-7000 Email: sarah.s.wilson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Assistant US Attorney LA-CV AUSA - Office of US Attorney Civil Division 300 North Los Angeles Street Suite 7516 Los Angeles, CA 90012 213-894-2879 Email: USACAC.Civil@usdoj.gov TERMINATED: 02/22/2010
Elizabeth Lee Walker US Department of Justice Civil Division - OIL - DCS Ben Franklin Station PO Box 868 Washington, DC 20044 202-532-4271 Fax: 202-305-7000 Email: Elizabeth.L.Walker@usdoj.gov TERMINATED: 05/17/2011
Gjon Juncaj

Respondent
George Molinar Cheif of Detention and Removal Operations, San Pedro Detention Facility TERMINATED: 09/08/2010

US Department of Justice Office of Immigration Litigation PO Box 868 Ben Franklin Station Washington, DC 20044 202-307-8514 TERMINATED: 11/06/2018
Nicole R Prairie US Department of Justice Civil Division - Office of Immigration Litigation Ben Franklin Station PO Box 868 Washington, DC 20044 202-532-4074 Fax: 202-305-7000 Email: Nicole.Prairie@usdoj.gov TERMINATED: 11/07/2018
Robert Ira Lester AUSA - Office of US Attorney Civil Division 300 North Los Angeles Street Room 7516-AA Los Angeles, CA 90012 213-894-2464 Fax: 213-894-7819 Email: robert.lester@usdoj.gov TERMINATED: 03/26/2019
Theodore William Atkinson United States Department of Justice Office of Immigration Litigation District Court Section P O Box 868 Ben Franklin Station Washington, DC 20044 202-532-4135 Fax: 202-305-7000 Email: theodore.atkinson@usdoj.gov TERMINATED: 11/07/2018
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
Janet Napolitano Secretary, Homeland Security Substituted for Michael Chertoff

Assistant US Attorney LA-CV (See above for address) TERMINATED: 02/22/2010
Elizabeth Lee Walker (See above for address) TERMINATED: 05/17/2011
Gjon Juncaj (See above for address) TERMINATED: 11/06/2018
Nicole R Prairie (See above for address) TERMINATED: 11/07/2018
Robert Ira Lester (See above for address) TERMINATED: 03/26/2019
Theodore William Atkinson (See above for address) TERMINATED: 11/07/2018
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah S Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Assistant US Attorney LA-CV (See above for address) TERMINATED: 02/22/2010
Elizabeth Lee Walker (See above for address) TERMINATED: 05/17/2011
Gjon Juncaj (See above for address) TERMINATED: 11/06/2018
Nicole R Prairie (See above for address)

Respondent
Eric Holder United States Attorney General Substituted for Alberto Gonzales

TERMINATED: 11/07/2018
Robert Ira Lester (See above for address) TERMINATED: 03/26/2019
Theodore William Atkinson (See above for address) TERMINATED: 11/07/2018
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah S Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Assistant US Attorney LA-CV (See above for address) TERMINATED: 02/22/2010
Dorothy Kim AUSA - Office of US Attorney Criminal Div - US Courthouse 312 North Spring Street 12th Floor Los Angeles, CA 90012-4700 213-894-3779 Fax: 213-894-6269 Email: USACAC.Criminal@usdoj.gov TERMINATED: 11/09/2018
Elizabeth Lee Walker (See above for address) TERMINATED: 05/17/2011
Gjon Juncaj (See above for address) TERMINATED: 11/06/2018
Hans Chen US Department of Justice Office of Immigration Litigation - Civil Division P O Box 868 Washington, DC 20001

Respondent Paul Walters TERMINATED: 04/05/2010
Respondent Lee Baca Sheriff of Los Angeles County TERMINATED: 04/05/2010

301-307-4469 Fax: 202-305-7000 Email: hans.h.chen@usdoj.gov TERMINATED: 11/07/2018
Nicole R Prairie (See above for address) TERMINATED: 11/07/2018
Robert Ira Lester (See above for address) TERMINATED: 03/26/2019
Theodore William Atkinson (See above for address) TERMINATED: 11/07/2018
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Assistant US Attorney LA-CV (See above for address) TERMINATED: 02/22/2010
Elizabeth Lee Walker (See above for address) TERMINATED: 05/17/2011
Gjon Juncaj (See above for address) TERMINATED: 11/06/2018
Nicole R Prairie (See above for address) TERMINATED: 11/07/2018
Theodore William Atkinson (See above for address) TERMINATED: 11/07/2018
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent Sammy Jones Chief of the Custody Operations Division of the Los Angeles County Sheriff's Department TERMINATED: 04/05/2010
Respondent Thomas G Snow Acting Director, Executive Office for Immigration Review

Elizabeth Lee Walker (See above for address) TERMINATED: 05/17/2011
Gjon Juncaj (See above for address) TERMINATED: 11/06/2018
Nicole R Prairie (See above for address) TERMINATED: 11/07/2018
Theodore William Atkinson (See above for address) TERMINATED: 11/07/2018
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Lee Walker (See above for address) TERMINATED: 05/17/2011
Gjon Juncaj (See above for address) TERMINATED: 11/06/2018
Nicole R Prairie (See above for address) TERMINATED: 11/07/2018
Theodore William Atkinson (See above for address) TERMINATED: 11/07/2018
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah S Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent Wesley Lee Officer-in-Charge, Mira Loma Detention Center
Respondent Rodney Penner Captain, Mira Loma Detention Center

Elizabeth Lee Walker (See above for address) TERMINATED: 05/17/2011
Nicole R Prairie (See above for address) TERMINATED: 11/07/2018
Theodore William Atkinson (See above for address) TERMINATED: 11/07/2018
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah S Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Lee Walker (See above for address) TERMINATED: 05/17/2011
Nicole R Prairie (See above for address) TERMINATED: 11/07/2018
Theodore William Atkinson (See above for address) TERMINATED: 11/07/2018
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah S Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Lee Walker (See above for address) TERMINATED: 05/17/2011

Respondent Sandra Hutchens Sheriff of Orange County
Respondent Officer Nguyen Officer-in-Charge, Theo Lacy Facility

Nicole R Prairie (See above for address) TERMINATED: 11/07/2018
Theodore William Atkinson (See above for address) TERMINATED: 11/07/2018
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah S Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Lee Walker (See above for address) TERMINATED: 05/17/2011
Nicole R Prairie (See above for address) TERMINATED: 11/07/2018
Theodore William Atkinson (See above for address) TERMINATED: 11/07/2018
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah S Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Lee Walker (See above for address) TERMINATED: 05/17/2011
Nicole R Prairie (See above for address)

Respondent Captain Davis Nighswonger Commander, Theo Lacy Facility
Respondent Captain Mike Kreuger Operations Manager, James A. Musick Facility

TERMINATED: 11/07/2018
Theodore William Atkinson (See above for address) TERMINATED: 11/07/2018
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah S Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Lee Walker (See above for address) TERMINATED: 05/17/2011
Nicole R Prairie (See above for address) TERMINATED: 11/07/2018
Theodore William Atkinson (See above for address) TERMINATED: 11/07/2018
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah S Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Lee Walker (See above for address) TERMINATED: 05/17/2011
Nicole R Prairie (See above for address) TERMINATED: 11/07/2018
Theodore William Atkinson

Respondent Arthur Edwards Officer-in-Charge, Santa Ana City Jail
Respondent Russell Davis Jail Administrator, Santa Ana City Jail

(See above for address) TERMINATED: 11/07/2018
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah S Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Lee Walker (See above for address) TERMINATED: 05/17/2011
Nicole R Prairie (See above for address) TERMINATED: 11/07/2018
Theodore William Atkinson (See above for address) TERMINATED: 11/07/2018
represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah S Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Lee Walker (See above for address) TERMINATED: 05/17/2011
Nicole R Prairie (See above for address) TERMINATED: 11/07/2018
Theodore William Atkinson (See above for address) TERMINATED: 11/07/2018

Date Filed 05/16/2007 05/16/2007 05/16/2007
05/16/2007 05/22/2007
05/29/2007 05/30/2007
06/25/2007 06/25/2007 07/10/2007 07/11/2007

# Docket Text
1 PETITION for Writ of Habeas Corpus by a Person In Federal Custody (28:2241) Case assigned to Judge Virginia A. Phillips and referred to Magistrate Judge Charles F. Eick.(Filing fee $ 5 Paid), filed by petitioner Alejandro Garcia.(rrey, ) (Entered: 05/30/2007)
2 NOTICE of Interested Parties filed by Petitioner Alejandro Garcia. (rrey, ) (Entered: 05/30/2007)
3 NOTICE OF REFERENCE TO A U.S. MAGISTRATE JUDGE. Pursuant to the provisions of the Local Rules, the within action has been assigned to the calendar of Judge Virginia A. Phillips and referred to Magistrate Judge Charles F. Eick to consider preliminary matters and conduct all further matters as appropriate. The Court must be notified within 15 days of any change of address. (rrey, ) (Entered: 05/30/2007)
12 NOTICE of Related Case(s) filed by Petitioner Alejandro Rodriguez. Related Case(s): CV 04-2270 TJH (Mc), CV 04-6656 TJH (MLG), CV 04-10251 TJH (MAN), ans other cases (rn) (Entered: 08/06/2007)
5 ORDER REQUIRING ANSWER/RETURN TO PETITION. ORDER by Magistrate Judge Charles F. Eick that Respondents file an Answer to the Petition within 23 days of the date of this order. If Petitioner desires to file a Reply to the Answer, he shall do so within 15 days of the date that the Answer is filed. (sp, ) (Entered: 05/30/2007)
4 FIRST AMENDED PETITON FOR WRIT OF HABEAS CORPUS against respondent James Hayes, George Molinar, Michael Chertoff, Alberto Gonzales, Paul Walters, Lee Baca, Sammy Jones amending Petition for Writ of Habeas Corpus (2241) 1 ,filed by petitioner Alejandro Garcia (lc, ) (Entered: 05/30/2007)
6 MINUTES OF IN CHAMBERS ORDER held before Judge Charles F. Eick. The Court is in receipt of Petitioner's "Notice of Corrected Petition for Writ of Habeas Corpus," filed 5/29/07. Exhibit A to this Notice is deemed to be Petitioner's First Amended Petition for Writ of Habeas Corpus. The caption of the case is ordered changed accordingly. Respondent shall file an Answer to the First Amended Petition within 23 days of the date of this order. Petitioner may file a Reply within 15 days of the date that the Answer is filed. (sp, ) (Entered: 05/31/2007)
7 ANSWER to Amended Petition for Writ of Habeas Corpus, 4 filed by federal defendants James Hayes, George Molinar, Michael Chertoff, Alberto Gonzales. (lc) (Entered: 06/26/2007)
10 NOTICE OF MOTION AND MOTION for Class Certification filed by petitioner Alejandro Garcia. Memorandum of Points and Authorities.Motion set for hearing on 7/16/2007 at 10:00 AM before Judge Virginia A. Phillips. (ad) (Entered: 07/17/2007)
9 TRAVERSE AND REPLY IN SUPPORT OF Amended Petition for Writ of Habeas Corpus, 4 filed filed by Petitioner Alejandro Garcia. (lc) (Entered: 07/12/2007)
8 MINUTES OF IN CHAMBERS ORDER held before Judge Virginia A. Phillips:

07/19/2007 08/02/2007 08/07/2007 08/08/2007
08/08/2007 08/14/2007 08/14/2007 08/14/2007 08/15/2007 08/15/2007
08/15/2007

Petitioner Motion for Class Certification is hereby continued for hearing on 8/20/2007 at 10:00 AM before Judge Virginia A. Phillips. Petitioner shall file a proof of service of Petitioner's Motion for Class Certification no later than 7/20/07.(am) (Entered: 07/12/2007)
11 NOTICE OF FILING OF PROOF OF SERVICE re MOTION to Certify Class 10 ; EXHIBITS filed by Petitioner Alejandro Rodriguez, served on 06/25/2007. (csa) (Entered: 08/02/2007)
18 APPLICATION of Judy Rabinovitz for Leave to Appear Pro Hac Vice and designating Ahilan t Arulanantham as local counsel. FEE PAID. filed by petitioner Alejandro Rodriguez. Lodged order. (lc) (Entered: 08/20/2007)
17 OPPOSITION to petitioner's MOTION for Class Certification 10 ; filed by respondents(ear) (Entered: 08/20/2007)
13 ORDER TO REASSIGN CASE PURSUANT TO Section 5.4 of General Order 07.02 by Judge John F. Walter, Chair of the Case Management and Assignment Committee, all related Indefinite Detention cases are assigned to Judge Terry J. Hatter, Jr. and referred to Magistrate Judge Robert N. Block. The case number will now read as follows: CV 07-3239 TJH (RNB). The Related Group Control Case Number is: CV 04-3266 TJH (RNB).(rn) (Entered: 08/09/2007)
20 OPPOSITION to MOTION for Class Certification 10 ; filed by respondents (ear) (Entered: 08/21/2007)
16 ORDER by Judge Robert N. Block granting granting APPLICATION of Judy Rabinovitz for Leave to Appear Pro Hac Vice. FEE PAID(dmjr) (Entered: 08/17/2007)
19 ORDER granting APPLICATION of Judy Rabinovitz for Leave to Appear Pro Hac Vice and designating Ahilan T Arulanantham as local counsel on behalf of petitioner Alejandro Rodriguez by Judge Terry J. Hatter Jr 18 (lc) (Entered: 08/20/2007)
22 REPLY MEMORANDUM OF POINTS AND AUTHORITIES in support MOTION to Certify Class 10 filed by Petitioner Alejandro Rodriguez. (twdb) (Entered: 09/04/2007)
14 STIPULATION AND ORDER by Judge Terry J. Hatter Jr: that the Court GRANT petitioner one extra day, to and through Tuesday 8/14/07, in which to submit his reply brief in support of his motion for class certification. (et) (Entered: 08/16/2007)
15 MINUTES OF IN CHAMBERS ORDER held before Judge Terry J. Hatter Jr: ORDER AND NOTICE TO ALL PARTIES; This Case has been transferred to U.S. District Judge Terry J. Hatter, Jr. Counsel are hereby notified that the Petitioners MOTION for class certification, filed on 6/25/07 10 , and set for calendar on August 20, 2007, at 10:00 a.m. will STAND SUBMITTED as of the hearing date. No appearance is necessary. IT IS SO ORDERED. (et) (Entered: 08/16/2007)
21 REQUEST FOR ORA ARGUMENT re MOTION to Certify Class 10 filed by Petitioner Alejandro Rodriguez. (lw) (Entered: 08/29/2007)

08/21/2007 11/07/2007 11/08/2007
12/17/2007 12/28/2007 12/28/2007 01/06/2008 01/06/2008
01/08/2008 03/13/2008 03/19/2008 04/07/2008

23 NOTICE OF FILING OF ADDITIONAL AUTHORITY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION 10 filed by Petitioner Alejandro Rodriguez. (te) (Entered: 09/12/2007)
24 NOTICE OF MOTION AND MOTION of Federal Respondents James Hayes, George Molinar, Michael Chertoff and Alberto Gonzales to Dismiss Action; filed by Federal Respondents. Motion set for hearing on 12/18/2007 at 9:30 AM before Magistrate Judge Robert N. Block. (te) (Entered: 11/08/2007)
25 MINUTES RE: Defendants' Motion to Dismiss, filed 11/7/07; In Chambers Conference held before Judge Robert N. Block : Defendants' Motion is ORDERED off calendar for having been improperly brought. Since the class certification motion currently is pending before the District Judge, defendants in effect are asking the Magistrate Judge to preempt the District Judge's ruling on their contention.Court Reporter: n/a. (twdb) (Entered: 11/14/2007)
26 NOTICE OF MOTION AND MOTION to Dismiss Action as Moot filed by Respondents James Hayes, George Molinar, Michael Chertoff, Alberto Gonzales.Motion set for hearing on 1/14/2008 at 10:00 AM before Judge Terry J. Hatter Jr. (jl) (Entered: 12/26/2007)
27 REQUEST for COURT DECISION PURSUANT TO LOCAL RULE 83-9 filed by Petitioner Alejandro Rodriguez. (lw) (Entered: 01/03/2008)
28 MEMORANDUM of Points and Authorities in Opposition to Respondents' MOTION to Dismiss Action as Moot 26 filed by Petitioner Alejandro Rodriguez. (lw) (Entered: 01/03/2008)
29 REPLY in support of motion MOTION to Dismiss Action as Moot 26 filed by Respondents James Hayes, George Molinar, Michael Chertoff, Alberto Gonzales. (Lester, Robert) (Entered: 01/06/2008)
30 First EX PARTE APPLICATION to Stay pending ruling on motion to dismiss for mootness filed by Federal Respondents James Hayes, George Molinar, Michael Chertoff, Alberto Gonzales. (Attachments: # 1 Declaration of Robert Lester# 2 Proposed Order granting ex parte application)(Lester, Robert) (Entered: 01/06/2008)
31 NOTICE of Decision: by Supreme Court that subject matter jurisdiction is not waivable filed by Federal Respondents James Hayes, George Molinar, Michael Chertoff, Alberto Gonzales. (Lester, Robert) (Entered: 01/08/2008)
32 REQUEST for Judgment filed by Petitioners Alejandro Rodriguez. (Arulanantham, Ahilan) (Entered: 03/13/2008)
33 ORDER by Judge Terry J. Hatter Jr, that the Respondents' motion to dismiss 26 , the motion for class certification 10 and the ex parte application for a stay 30 be, and hereby are, Denied. (lom) (Entered: 03/21/2008)
34 (In Chambers) Order and Notice to All Parties by Judge Terry J. Hatter Jr, re 224 13 . Counsel are hereby notified that the reference of this matter to the Magistrate Judge Block pursuant to General Order 194 is hereby VACATED.The case number will now read CV 07-3239-TJH(RNBx). In the future, it is mperative that the initials TJH(RNBx) be used on all documents to prevent any delays in the

04/10/2008 07/17/2008 07/17/2008 07/18/2008 09/10/2008
09/18/2008 09/22/2008 10/22/2008 11/06/2008 11/14/2008

processing of documents. (lom) (Entered: 04/09/2008)
35 NOTICE of Change of Address by Ahilan T Arulanantham attorney for Petitioner Alejandro Rodriguez, changing address to 1313 West Eighth Street, Los Angeles, CA 90017. Filed by counsel of record Ahilan T. Arulanantham (Arulanantham, Ahilan) (Entered: 04/10/2008)
36 ORDER from 9th CCA filed, CCA # 08-80055. The court, in its discretion, grants the petition for permission to appeal the district court's 3/19/08 order denying class action certification. Within 10 days of this order, petitioner shall perfect the appeal in accordance with Federal Rule of Appelate Procedure 5(d). Order received in this district on 7/17/08. (car) (Entered: 07/18/2008)
38 9th Assigned case number 08-56156 filed by Petitioner Alejandro Rodriguez. re 9th CCA Appeal 36 (lr) (Entered: 07/21/2008)
37 NOTICE of Appellant Filing Fees filed as to Petitioner Alejandro Rodgriguez. Receipt number: 109527, Paid in the amount of $455.00. filed by Petitioner Alejandro Rodriguez. 9th CCA 08-80055. (lr) (Entered: 07/18/2008)
45 ORDER from 9th CCA filed, CCA # 08-56156. The parties' joint motion to amend the briefing schedule is construed as a motion to expedite. So construed, the motion is granted in part. The opening brief is due September 12, 2008; the answering breif is due October 20, 2008; and the optional reply brief is due 14 days after service of the answering brief. The provisions on Ninth Circuit Rule 312-2(a) shall not be applicable to this case; any Rule 31-2.2(a) request is strongly disfavored. The case shall be calendar is due course. cf 9th Cir. R. 27-12. Order received in this district on 11/02/09. (lr) (Entered: 11/05/2009)
46 ORDER from 9th CCA filed, CCA # 08-56156. Appellant's request for judicial notice, any response, and any further such request shall be referred to the merits panel for whatever treatment the panel deems appropriate. The briefing schedule is unchanged. Order received in this district on 11/02/09. (lr) (Entered: 11/05/2009)
39 MINUTES OF IN CHAMBERS ORDER by Judge Terry J. Hatter, Jr: Counsel are hereby notified that a status report must be filed with this court no later than 10/22/08 as to the status of this case. IT IS SO ORDERED. (mmu) (Entered: 09/22/2008)
40 STATUS REPORT (Joint) filed by Petitioner Alejandro Rodriguez. (Arulanantham, Ahilan) (Entered: 10/22/2008)
41 ORDER from 9th CCA filed, CCA # 08-56156. is Appellant's motion for an extensionof time to file the reply brief is granted. The reply brief is due November 13, 2008. Court records do not currently reflect that the district court has issued the certificate of record. Appellant shall monitor the issuance of the certificate. This case shall be calendared in due course. (dmap) (Entered: 11/07/2008)
42 NOTICE of Change of Attorney Information for attorney Ahilan T Arulanantham counsel for Petitioner Alejandro Rodriguez.Ranjana Natarajan is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G-06 Notice. Filed by plaintiff Alejandro Rodriguez (Arulanantham, Ahilan) (Entered: 11/14/2008)

11/14/2008 04/17/2009 08/20/2009 09/03/2009
10/30/2009
01/08/2010
01/12/2010 01/19/2010 02/01/2010 02/08/2010 02/22/2010

43 Certificate of Record filed by petitioner Alejandro Rodriguez. (dmap) (Entered: 11/14/2008)
44 RECORD ON APPEAL sent to Circuit Court re: Appeal number, 08-56156 Record consists of 2 volumes. re 9th CCA Order perfect the appeal 36 (lr) (Entered: 04/20/2009)
47 ORDER from 9th CCA filed, CCA # 08-56156. We deny Petitioner Alejandro Rodriguez's Request for Judicial Notice as moot. DENIED. Order received in this district on 11/02/09. (lr) (Entered: 11/05/2009)
48 ORDER from 9th CCA filed, CCA # 08-56156. re 9th CCA Order 36 Respondents' motion for an extension of time to file a petition for rehearing is GRANTED to and including November 4, 2009. Counsel is reminded that a timely filing requires receipt by the Clerk's office on or before the due date. Order received in this district on 11/02/09. (lr) Modified on 11/5/2009 (lr). (Entered: 11/05/2009)
49 ORDER from 9th CCA filed, CCA # 08-56156. re 9th CCA Order 36 Appellees' second request for extension to file a petition for panel rehearing and en banc rehearing is granted to and including November 13, 2009. The parties are reminded that a timely filing requires that the document be received by the Clerk's office on or before the due date. Order received in this district on 10/30/09. (lr) Modified on 11/5/2009 (lr). (Entered: 11/05/2009)
50 MINUTES OF IN CHAMBERS-ORDER AND NOTICE TO ALL PARTIES (NON-MOTION) by Judge Terry J. Hatter, Jr. Counsel are hereby notified that the above entitled matter is set on the court's calendar for status conference re the 9th CCA Order and Amended Opinion, Appeal No. 08-56156, reversed and remanded to this court in regard to class certification, on January 25, 2010 at 10:00 a.m. (lom) (Entered: 01/11/2010)
51 MANDATE of 9th CCA filed re: Minutes of In Chambers Order, 50 , CCA # 0856156. The decision of the district court is reversed and remanded. Mandate received in this district on 1/12/10. (dmap) Modified on 1/13/2010 (lom). (Entered: 01/13/2010)
52 MINUTES OF IN CHAMBERS - NOTICE TO ALL PARTIES OF COURT ORDER by Judge Terry J. Hatter, Jr. On the Court's own motion, the Status Conference hearing date, currently scheduled for January 25, 2010, is hereby ordered continued to February 1, 2010 at 10:00 A.M. (lom) (Entered: 01/19/2010)
53 MINUTES OF STATUS CONFERENCE Re Mandate of the 9th Circuit Court ofAppeal's Order and Amended Opinion; (Appeal No. 08-56156) held before Judge Terry J. Hatter, Jr. Parties agreed to work on a sub-class issue. The Court sets a Motion to Certify Class and Motion for Discovery Hearings at March 15, 2010 at 10:00 a.m.Court Recorder: CS 2/1/10. (lom) (Entered: 02/03/2010)
54 NOTICE OF MOTION AND MOTION for Discovery regarding Sub-Classes filed by Petitioner Alejandro Rodriguez. Motion set for hearing on 3/15/2010 at 10:00 AM before Judge Terry J. Hatter Jr. (Tran, William) (Entered: 02/08/2010)
55 NOTICE of Appearance filed by attorney Gjon Juncaj on behalf of Respondents Lee Baca, Michael Chertoff, Alberto Gonzales, James Hayes, Sammy Jones,

02/26/2010 03/02/2010 03/02/2010 03/04/2010 03/04/2010 03/08/2010 03/09/2010
03/15/2010

George Molinar, Paul Walters (Juncaj, Gjon) (Entered: 02/22/2010)
56 STIPULATION to Continue Hearing from 3/15/10 at 10am to 3/22/10 at 10am filed by Petitioners Alejandro Rodriguez. (Attachments: # 1 Proposed Order) (Arulanantham, Ahilan) (Entered: 02/26/2010)
57 STATUS REPORT re: automatic Respondent substitution pursuant to Fed. R. Civ. P. 25(d) filed by Respondents Lee Baca, Michael Chertoff, Alberto Gonzales, James Hayes, Sammy Jones, George Molinar, Paul Walters. (Juncaj, Gjon) (Entered: 03/02/2010)
58 AMENDED DOCUMENT filed by Petitioner Alejandro Rodriguez. Amendment to Stipulation to Continue 56 (Attachments: # 1 Proposed Order)(Arulanantham, Ahilan) (Entered: 03/02/2010)
59 APPEAL RECORD RETURNED from 9th CCA Received: Volume(s): 1 through 2; RE: Appeal Record Sent to USCA (A-26) 44 (cbr) (Entered: 03/05/2010)
60 ORDER Granting Stipulation re 56 by Judge Terry J. Hatter, Jr. It is hereby ORDERED that the March 15, 2010 motion to certify class and motion for discovery hearing at 10:00 a.m. be continued to March 22, 2010 at 10:00 a.m. (lom) (Entered: 03/08/2010)
61 OPPOSITION to MOTION for Discovery regarding Sub-Classes 54 filed by Respondents Lee Baca, Michael Chertoff, Alberto Gonzales, James Hayes, Sammy Jones, George Molinar, Paul Walters. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Juncaj, Gjon) (Entered: 03/09/2010)
62 MINUTES (IN CHAMBERS) ORDER TO SHOW CAUSE WHY THIS CASESHOULD NOT BE DISMISSED AS TO CERTAIN DEFENDANTS FORLACK OF PROSECUTION by Judge Terry J. Hatter, Jr. The file in this case lacks the papers that would show it is being timely prosecuted, as reflected below. Accordingly, the Court, on its own motion, hereby orders plaintiff(s) to show cause in writing no later than March 16, 2010, why this action should not be dismissed as to any unserved defendants for lack of prosecution. As an alternative to a written response by plaintiff(s), the Court will accept one of the following, if it is filed on or before the above date, as evidence that the matter is being prosecuted diligently: Proof of service of the Summons and Complaint on the following defendants: Lee Baca, Sheriff of Los Angeles County; Sammy Jones, Chief of the Custody Operations Division of the Los Angeles County Sheriff's Department; and Paul Walters, Chief of Police for the City of Santa Ana A hearing on this Order to Show cause is set for March 22, 2010, at 10:00 a.m. absent a satisfactory response by Plaintiff/s to this Court's order. (lom) (Entered: 03/10/2010)
63 TRANSCRIPT for proceedings held on 2-1-10 10:39 a.m.. Court Reporter/Electronic Court Recorder: Babykin Courthouse Services, phone number (626) 963-0566. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 4/5/2010. Redacted Transcript Deadline set for 4/15/2010.

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Release of Transcript Restriction set for 6/13/2010. (ha) (Entered: 03/15/2010)
64 NOTICE OF FILING TRANSCRIPT filed for proceedings 2-1-10 10:39 a.m. (ha) (Entered: 03/15/2010)
65 REPLY in support of MOTION for Discovery regarding Sub-Classes 54 filed by Petitioner Alejandro Rodriguez. (Attachments: # 1 Exhibit 16, # 2 Exhibit 17, # 3 Exhibit 18)(Tran, William) (Entered: 03/15/2010)
66 RESPONSE filed by Petitioner Alejandro Rodriguezto Minutes of In Chambers Order/Directive - no proceeding held, Set Deadlines/Hearings,,,,,,,, 62 (Attachments: # 1 Exhibit)(Arulanantham, Ahilan) (Entered: 03/16/2010)
67 MINUTES OF STATUS CONFERENCE RE CLASS CERTIFICATION, DISCOVERY and ORDER TO SHOW CAUSE RE LACK OF PROSECUTION (Non-Evidentiary; Held and Completed) before Judge Terry J. Hatter, Jr. Petitioner shall submit a proposed Order Re Class Certification for the Court's consideration. The parties are to meet and confer regarding the submission of a stipulated proposed Protective Order. Subject to a stipulated Protective Order, Government shall provide Petitioners with a list of names and "A" numbers, as stated on the record, within seven (7) court days. Petitioner shall therefrom compile a representative number of claimants. Court Recorder: CS 3/22/10. (lom) (Entered: 03/22/2010)
68 NOTICE OF LODGING filed re Status Conference,, 67 , MOTION to Certify Class 10 (Attachments: # 1 Proposed Order)(Tran, William) (Entered: 03/26/2010)
69 to class certification and proposed class certification order opposition re: MOTION to Certify Class 10 and lodged proposed class certification order filed by Respondents Lee Baca, Michael Chertoff, Alberto Gonzales, James Hayes, Sammy Jones, George Molinar, Paul Walters. (Juncaj, Gjon) (Entered: 03/26/2010)
70 STATUS REPORT re Representation of City/Count Respondents filed by Respondents Lee Baca, Michael Chertoff, Alberto Gonzales, James Hayes, Sammy Jones, George Molinar, Paul Walters. (Juncaj, Gjon) (Entered: 03/26/2010)
71 TRANSCRIPT for proceedings held on 3/22/10 10:12am. Court Reporter/Electronic Court Recorder: Exceptional Reporting Services, Inc., phone number (361) 949-2988. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 4/19/2010. Redacted Transcript Deadline set for 4/29/2010. Release of Transcript Restriction set for 6/27/2010. (Lopez, Margarita) (Entered: 03/29/2010)
72 NOTICE OF FILING TRANSCRIPT filed for proceedings 3/22/10 10:12am (Lopez, Margarita) (Entered: 03/29/2010)
73 NOTICE OF LODGING filed re Status Conference,, 67 (Attachments: # 1 Proposed Order Proposed Stipulated Protective Order, # 2 Exhibit)(Arulanantham,

03/30/2010 03/31/2010 04/05/2010 04/05/2010
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Ahilan) (Entered: 03/30/2010)
74 RESPONSE filed by Respondents Lee Baca, Michael Chertoff, Alberto Gonzales, James Hayes, Sammy Jones, George Molinar, Paul Waltersto Status Report 70 , Minutes of In Chambers Order/Directive - no proceeding held, Set Deadlines/Hearings,,,,,,,, 62 , Response (non-motion) 66 (Juncaj, Gjon) (Entered: 03/30/2010)
75 RESPONSE filed by Petitioner Alejandro Rodriguezto Objection/Opposition (Motion related), Objection/Opposition (Motion related) 69 re: Proposed Order Certifying Class (Tran, William) (Entered: 03/31/2010)
76 ORDER by Judge Terry J. Hatter, Jr. The Court has considered the responses to the Court's Order to Show Cause 62 regarding dismissal for Petitioners' failure to serve Defendants Lee Baca, Sammy Jones, and Paul Walters. It is Ordered that Defendants Lee Baca, Sammy Jones, and Paul Walters be, and hereby are, Dismissed. (lom) (Entered: 04/12/2010)
77 Class Certification Order re 10 by Judge Terry J. Hatter, Jr. It is Ordered that the Petitioner Class be, and hereby is, Certified. It is further Ordered that the Class Representative shall be Alejandro Rodriguez. It is further Ordered that the Class's Counsel shall be Peter J Eliasberg, Ahilan T Arulanantham, Cecillia D Wang, Jayashri Srikantiah, Judy Rabinovitz, Monica M Ramirez, Ranjana Nataranjan, Steven A. Ellis, William Tran, and Brian K. Washington. It is further Ordered that the Class shall consist of all non-citizens within the Central District of California who: (1) are or were detained for longer than six months pursuant to one of the general immigration detention statutes pending completion of removal proceedings, including judicial review, (2) are not and have not been detained pursuant to a national security detention statute, and (3) have not been afforded a hearing to determine whether their detention is justified. (lom) (Entered: 04/13/2010)
78 STIPULATED PROTECTIVE ORDER CONCERNING ROSTER OF DETAINEES by Judge Terry J. Hatter, Jr. (See attached Stipulated Protective Order for further infromation). (jp) (Entered: 04/21/2010)
79 MINUTES (IN CHAMBERS) ORDER REGARDING DISCOVERY AND SETTING FINAL PRETRIAL CONFERENCE by Judge Terry J. Hatter, Jr. In light of the Stipulated Protective Order granted on 4-19-10, Petitioner's Motion for Discovery Related to Sub-Classes (filed 02-08-10) 54 is DENIED as MOOT, with leave to renew, if necessary. It is Ordered that all discovery matters which become at issue are referred to Magistrate Judge Robert N. Block for his consideration. Please contact the courtroom deputy clerk to the Magistrate Judge regarding these matters. It is Ordered, pursuant to Rule 16 of the Federal Rules of Civil Procedures and Local Rule 16, that the Final Pre-Trial Conference is placed on the Court's calendar for October 18, 2010, at 10:00 a.m., in Courtroom No. 17 in the U. S. Courthouse on Spring Street. Unless excused for good cause, each party appearing in this action shall be represented by the attorney who is to have charge of conducting the trial. It is further Ordered that any application or stipulation to continue the Final Pre-Trial Conference shall be lodged with the court no later than one week prior to the Conference date, and shall state the reason for seeking the continuance. (Refer to attached document for further

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requirements.) (lom) (Entered: 04/22/2010)
80 NOTICE of Appearance (Atkinson, Theodore) (Entered: 06/28/2010)
81 STIPULATION for Extension of Time to File Joint Report Pursuant to Rule 26(f) filed by Respondents Michael Chertoff, Alberto Gonzales, James Hayes, George Molinar. (Attachments: # 1 Proposed Order)(Atkinson, Theodore) (Entered: 07/07/2010)
82 JOINT REPORT of CONFERENCE OF PARTIES PURSUANT TO FED. R. CIV. P. 26(F), LOCAL RULE 26-1, AND COURT ORDER filed by Petitioner Alejandro Rodriguez. (Tran, William) (Entered: 07/09/2010)
83 NOTICE OF MOTION AND MOTION to Amend Amended Petition for Writ of Habeas Corpus, 4 filed by Plaintiffs Alejandro Rodriguez. (Attachments: # 1 Proposed Order)(Arulanantham, Ahilan) (Entered: 09/07/2010)
84 NOTICE OF DOCUMENT DISCREPANCIES AND ORDER by Judge Terry J. Hatter, Jr., ORDERING Second Amended Complaint and Amended Notice of Interested Parties submitted by Petitioners received on 9/7/2010 to be filed and processed; filed date to be the date the document was stamped Received but not Filed with the Clerk. (jp) (Entered: 09/09/2010)
85 SECOND AMENDED COMPLAINT against Defendants Eric Holder, Janet Napolitano, Thomas G. Snow, Timothy Robbins, Wesley Lee, Rodney Penner, Sandra Hutchens, Officer Nguyen, Captain Davis Nighswonger, Captain Mike Kreuger, Arthur Edwards, and Russell Davis; Party George Molinar terminated; amending First Amended Petition for Writ of Habeas Corpus 4 ; filed by Petitioners Alejandro Rodriguez, Abdirizak Aden Farah, Yussuf Abdikadir, Abel Perez Ruelas, Jose Farias Cornejo, and Angel Armando Amaya. (gk) (Entered: 09/09/2010)
86 AMENDED NOTICE of Interested Parties filed by Petitioners Alejandro Rodriguez, Abdirizak Aden Farah, Yussuf Abdikadir, Abel Perez Ruelas, Jose Farias Cornejo, and Angel Armando Amaya. (gk) (Entered: 09/09/2010)
87 NOTICE OF ERRATA filed by Petitioners Yussuf Abdikadir, Angel Armando Amaya, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. correcting Amended Complaint, 85 (Attachments: # 1 Corrected Second Amended Complaint)(Arulanantham, Ahilan) (Entered: 09/10/2010)
88 NOTICE of Change of Attorney Information for attorney Judy Rabinovitz counsel for Petitioner Alejandro Rodriguez.Monica M Ramirez is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G06 Notice. Filed by plaintiff ACLU Immigrants Rights Project (Rabinovitz, Judy) (Entered: 09/17/2010)
89 ORDER from 9th CCA filed, CCA # 08-56156. The motion of Michael Tan, Esq., for exemption form Ninth Circuit Rule 46-5 is granted. Order received in this district on 9/17/2010. (dmap) (Entered: 09/22/2010)
90 NOTICE OF MOTION AND Joint MOTION for Enlargement of Time to File Motion to Enlarge filed by Appellee-Respondent Lee Baca, Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Sammy Jones, Mike Kreuger, Wesley

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Lee, George Molinar, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow, Paul Walters. Motion set for hearing on 10/18/2010 at 01:30 PM before Judge Terry J. Hatter Jr. (Attachments: # 1 Proposed Order)(Atkinson, Theodore) (Entered: 09/27/2010)
91 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Joint MOTION for Enlargement of Time to File Motion to Enlarge 90 . The following error(s) was found: Incorrect document is attached to the docket entry.Incorrect event selected. The correct event is: Stipulation. In response to this notice the court orders the document stricken. Refile and select the correct event. (sce) (Entered: 09/30/2010)
92 FIRST STIPULATION Extending Time to Answer the complaint as to Lee Baca answer now due 10/1/2010; Russell Davis answer now due 10/1/2010; Arthur Edwards answer now due 10/1/2010; Eric Holder answer now due 10/1/2010; Sandra Hutchens answer now due 10/1/2010; Mike Kreuger answer now due 10/1/2010; Wesley Lee answer now due 10/1/2010; Nguyen answer now due 10/1/2010; Davis Nighswonger answer now due 10/1/2010; Rodney Penner answer now due 10/1/2010; Timothy Robbins answer now due 10/1/2010; Thomas G Snow answer now due 10/1/2010; Paul Walters answer now due 10/1/2010, filed by Respondents Russell Davis; Arthur Edwards; Eric Holder; Sandra Hutchens; Mike Kreuger; Wesley Lee; Janet Napolitano; Nguyen; Davis Nighswonger; Rodney Penner; Timothy Robbins; Thomas G Snow. (Attachments: # 1 Proposed Order)(Atkinson, Theodore) (Entered: 09/30/2010)
93 ORDER by Judge Terry J. Hatter, Jr, re Joint Stipulation to Enlarge the date for Respondents to file their Answer to the Second Amended Complaint 92 , which was filed 9/7/2010. For the reasons stated in the parties' Joint Stipulation, good cause is shown, and the enlargement is GRANTED, that Respondents shall file their Answer to the Second Amended Complaint on or before 10/1/2010. (jp) (Entered: 10/01/2010)
94 ANSWER to Amended Complaint, 85 (Answer to Corrected Second Amended Complaint) filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow.(Atkinson, Theodore) (Entered: 10/01/2010)
95 NOTICE OF ERRATA filed by Petitioners Yussuf Abdikadir, Angel Armando Amaya, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. correcting Errata, 87 Corrected Second Amended Complaint (Attachments: # 1 Second Corrected Second Amended Complaint)(Arulanantham, Ahilan) (Entered: 10/06/2010)
96 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Notice of Errata re Corrected Second Amended Complaint filed 10/6/2010 95 . The following error(s) was found: Answer to the Corrected Second Amended Complaint filed 10/1/2010. The docket does not reflect an order allowing the filing of the attached Second Corrected Second Amended Complaint. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court

directs you to do so. (gk) (Entered: 10/08/2010)

10/12/2010

97 Joint STIPULATION to Continue Final Pre-Trial Conference filed by Petitioners Yussuf Abdikadir, Angel Armando Amaya, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Proposed Order)(Arulanantham, Ahilan) (Entered: 10/12/2010)

10/12/2010

98 EX PARTE APPLICATION to Stay pending Further Order (Temporary Stay of Discovery Pending Determination of Parties' Motions) filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Proposed Order)(Atkinson, Theodore) (Entered: 10/12/2010)

10/14/2010 99 MINUTE ORDER IN CHAMBERS by Judge Terry J. Hatter, Jr: Status Conference is set for Monday, 10/18/2010, at 10:00 am. (kpa) (Entered: 10/14/2010)

10/14/2010 104 ORDER CONTINUING FINAL PRETRIAL CONFERENCE by Judge Terry J. Hatter, Jr.: Upon Joint Stipulation 97 , the conference scheduled for 10/18/2010 at 10 AM is taken off calendar, and a Status Conference is scheduled for 2/28/2011 10:00 AM before Judge Terry J. Hatter,Jr. (gk) (Entered: 10/20/2010)

10/15/2010 100 RESPONSE filed by Petitioners Yussuf Abdikadir, Angel Armando Amaya, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelasto EX PARTE APPLICATION to Stay pending Further Order (Temporary Stay of Discovery Pending Determination of Parties' Motions) EX PARTE APPLICATION to Stay pending Further Order (Temporary Stay of Discovery Pending Determination of Parties' Motions) 98 (Attachments: # 1 Exhibit) (Arulanantham, Ahilan) (Entered: 10/15/2010)

10/15/2010 101 NOTICE OF MOTION AND MOTION to Certify Class and Subclass filed by Plaintiffs Yussuf Abdikadir, Angel Armando Amaya, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Memorandum, # 2 Exhibits, # 3 Proposed Order)(Arulanantham, Ahilan) (Entered: 10/15/2010)

10/18/2010 105 MINUTES OF Status Conference held before Judge Terry J. Hatter, Jr.: Court confers with counsel regarding the status of the case and Respondents' Ex Parte Application for Temporary Stay and to Set a Briefing and Case Management Schedule filed on 10/12/2010 98 . Respondents' Ex Parte Application is hereby DENIED. The Parties shall file a joint stipulation to file a Third Amended Complaint and lodge a Third Amended Complaint with the Court forthwith, as discussed in Court and on the record. Final Pretrial Conference is hereby continued to 2/28/2011 10:00 AM before Judge Terry J. Hatter, Jr. Counsel are reminded to follow the Memorandum for Procedural Rules for Judge Hatter's Cases issued and filed on 4/21/2010 79 . Court Reporter: Hilda Avila. (gk) (Entered: 10/20/2010)

10/19/2010 102 NOTICE OF MOTION AND Cross MOTION for Discovery and Protective Order filed by Petitioner Alejandro Rodriguez. Motion set for hearing on 11/9/2010 at 09:30 AM before Magistrate Judge Robert N. Block. (Tran, William) (Entered: 10/19/2010)

10/19/2010 103 JOINT STIPULATION to Cross MOTION for Discovery and Protective Order 102 Pursuant to Local Rule 37-2.1 filed by Petitioner Alejandro Rodriguez. (Tran, William) (Entered: 10/19/2010)
10/20/2010 106 MINUTE ORDER IN CHAMBERS by Magistrate Judge Robert N. Block: re: Cross MOTION for Discovery and Protective Order 102 : The hearing on the foregoing Motions noticed for November 9, 2010 is ordered off calendar. The Court does not intend to expend any time considering these Motions until the District Judge rules on respondents' pending Ex Parte Application for a temporary stay of discovery, which appears to be based on many of the same contentions being made by respondents in support of their protective order motion. (wr) (Entered: 10/21/2010)
10/22/2010 107 NOTICE of Order Denying Respondents' Ex Parte Application filed by Petitioners Yussuf Abdikadir, Angel Armando Amaya, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Arulanantham, Ahilan) (Entered: 10/22/2010)
10/22/2010 108 STIPULATION for Leave to File Third Amended Complaint filed by Petitioners Yussuf Abdikadir, Angel Armando Amaya, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Third Amended Complaint, # 2 Proposed Order)(Arulanantham, Ahilan) (Entered: 10/22/2010)
10/22/2010 109 MINUTE ORDER IN CHAMBERS by Magistrate Judge Robert N. Block re: Petitioner's Motion to Compel and Respondent's Motion for Protective Order, filed October 19, 2010 102 . The new filing deadline for the parties' Supplemental Memoranda will be 11/05/10. If after review of the Supplemental Memoranda, the Court decides to permit oral argument, the Court will set a new date for the hearing. Otherwise, the Motions will be taken under submission and then be decided on the papers without oral argument. (nbo) (Entered: 10/25/2010)
10/22/2010 111 THIRD AMENDED COMPLAINT against Defendants Eric Holder, Janet Napolitano, Thomas G. Snow, Timothy Robbins, Wesley Lee, Rodney Penner, Sandra Hutchens, Officer Nguyen, Captain Davis Nighswonger, Captain Mike Kreuger, Arthur Edwards, and Russell Davis; amending Second Amended Complaint 85 ; filed by Petitioners Alejandro Rodriguez, Abdirizak Aden Farah, Yussuf Abdikadir, Abel Perez Ruelas, Jose Farias Cornejo, and Angel Armando Ayala. (gk) (Entered: 10/26/2010)
10/26/2010 110 ORDER GRANTING PETITIONERS LEAVE TO FILE THIRD AMENDED COMPLAINT by Judge Terry J. Hatter, Jr.: Upon Stipulation 108 , it is ordered that the Third Amended Complaint attached to the stipulation, docket number 108 is hereby filed, and shall replace all previous version of the complaint filed in this case. (gk) (Entered: 10/26/2010)
10/27/2010 112 NOTICE of Appearance (Reuveni, Erez) (Entered: 10/27/2010)
11/02/2010 113 NOTICE of Appearance (Prairie, Nicole) (Entered: 11/02/2010)
11/03/2010 114 NOTICE OF MOTION AND MOTION for Discovery (Stay of Discovery) filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger,

Rodney Penner, Timothy Robbins, Thomas G Snow. Motion set for hearing on 11/30/2010 at 09:30 AM before Magistrate Judge Robert N. Block. (Atkinson, Theodore) (Entered: 11/03/2010)
11/03/2010 115 Joint STIPULATION for Discovery as to (Stay of Discovery) filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Exhibit (Petitioners' Exhibit 20 to Joint Stipulation), # 2 Affidavit Declaration of Theodore Atkinson)(Atkinson, Theodore) (Entered: 11/03/2010)
11/05/2010 116 NOTICE OF MOTION AND Corrected MOTION for Discovery regarding (Stay of Discovery) filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. Motion set for hearing on 11/30/2010 at 09:30 AM before Magistrate Judge Robert N. Block. (Atkinson, Theodore) (Entered: 11/05/2010)
11/05/2010 117 SUPPLEMENT to Cross MOTION for Discovery and Protective Order 102 filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Atkinson, Theodore) (Entered: 11/05/2010)
11/05/2010 118 SUPPLEMENT to Cross MOTION for Discovery and Protective Order 102 PURSUANT TO LOCAL RULE 37-2.3 filed by Petitioner Alejandro Rodriguez. (Tran, William) (Entered: 11/05/2010)
11/05/2010 119 MINUTE ORDER IN CHAMBERS by Magistrate Judge Robert N. Block: The Court has not yet decided whether oral argument will be of material assistance to the Court's determination of this Motion. If, after review of the parties' Supplemental Memoranda, the Court decides to permit oral argument, the Court will set a new date for the hearing. Otherwise, the Motion will be taken under submission as of the date the Supplemental Memoranda are due to be filed (i.e., November 16, 2010) and then be decided on the papers without oral argument. See Local Rule 7-15. In the meantime, the hearing noticed for November 30, 2010 114 , 116 is ordered off calendar. (wr) (Entered: 11/08/2010)
11/11/2010 120 NOTICE of Filing Additional Legal Authority filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Arulanantham, Ahilan) (Entered: 11/11/2010)
11/12/2010 121 MINUTE ORDER IN CHAMBERS by Magistrate Judge Robert N. Block re: 114 . In their Supplemental Memorandum, respondents should also be sure to address the following issue: Even if the Court were otherwise persuaded to grant the stay motion, should the Court order the Government to turn over the A-files of the class members based on the Ninth Circuit's recent decision in Dent v. Holder ? (wr) (Entered: 11/15/2010)
11/15/2010 122 NOTICE OF NON-OPPOSITION to MOTION to Certify Class and Subclass 101 filed by Respondents Lee Baca, Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Sammy Jones, Mike Kreuger, Wesley Lee, George Molinar,

Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow, Paul Walters. (Reuveni, Erez) (Entered: 11/15/2010)
11/15/2010 123 SUPPLEMENT to MOTION for Discovery (Stay of Discovery) MOTION for Discovery (Stay of Discovery) 114 filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Atkinson, Theodore) (Entered: 11/15/2010)
11/16/2010 124 SUPPLEMENT to MOTION for Discovery (Stay of Discovery) MOTION for Discovery (Stay of Discovery) 114 (SUBSTITUTED SUPPLEMENTAL MEMORANDUM) filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Atkinson, Theodore) (Entered: 11/16/2010)
11/16/2010 125 Petitioners' Supplemental Memorandum in Opposition of Respondent's Motion to Stay Discovery Opposition re: Corrected MOTION for Discovery regarding (Stay of Discovery)Corrected MOTION for Discovery regarding (Stay of Discovery) 116 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Arulanantham, Ahilan) (Entered: 11/16/2010)
11/17/2010 126 MINUTES (IN CHAMBERS) ORDER by Magistrate Judge Robert N. Block re Respondents' Motion to Stay Discovery, filed 11/03/2010 114 . Motion is granted. The Courts granting of respondents stay motion renders moot respondents motion for a protective order. (See Order for further details) (db) (Entered: 11/18/2010)
11/19/2010 127 NOTICE of Appearance (Walker, Elizabeth) (Entered: 11/19/2010)
11/22/2010 128 REPLY in Support of MOTION to Certify Class and Subclass 101 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Arulanantham, Ahilan) (Entered: 11/22/2010)
11/22/2010 129 NOTICE OF LODGING filed re MOTION to Certify Class and Subclass 101 , Reply (Motion related) 128 (Attachments: # 1 Proposed Order)(Arulanantham, Ahilan) (Entered: 11/22/2010)
11/22/2010 130 NOTICE OF MOTION AND MOTION for Judgment on the Pleadings filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. Motion set for hearing on 1/31/2011 at 10:00 AM before Judge Terry J. Hatter Jr. (Atkinson, Theodore) (Entered: 11/22/2010)
11/23/2010 131 NOTICE OF MOTION AND Corrected MOTION for Judgment on the Pleadings filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. Motion set for hearing on 1/31/2011 at 10:00 AM before Judge Terry J. Hatter Jr. (Atkinson, Theodore) (Entered: 11/23/2010)
11/24/2010 132 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE:

Notice of Motion and Rule 12(c) Motion for Judgment on the Pleadings filed 11/22/2010 130 . The following error(s) was found: Proposed order/judgment not submitted pursuant to Local Rule 52-4.1. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (gk) (Entered: 11/29/2010)
11/29/2010 133 NOTICE OF MOTION AND MOTION for Preliminary Injunction re: Seeking Relief for Petitioner Jose Farias Cornejo filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Memorandum, # 2 Exhibit, # 3 Proposed Order)(Arulanantham, Ahilan) (Entered: 11/29/2010)
11/29/2010 134 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Corrected Notice of Motion and Rule 12(c) Motion for Judgment on the Pleadings filed 11/23/2010 131 . The following error(s) was found: Incorrect event selected. The correct event is: Amendment (Motion related). Filer utilized the Motions Judgment on the Pleadings event, which created a duplicative entry on the judge's calendar for 1/31/2011. Local Rule 11-6 Memorandum/brief exceeds 25 pages. Proposed order/judgment not submitted pursuant to Local Rule 52-4.1. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (gk) (Entered: 11/30/2010)
12/03/2010 135 Joint STIPULATION to Exceed Page Limitation as to Parties' Briefs on Respondents' Rule 12(c) Motion filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Proposed Order)(Atkinson, Theodore) (Entered: 12/03/2010)
12/03/2010 136 Joint STIPULATION for Order to Set Rule 12(c) Briefing Schedule filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Proposed Order) (Atkinson, Theodore) (Entered: 12/03/2010)
12/06/2010 137 Joint STIPULATION for Order Setting Briefing Schedule Re Petitioner Farias' Preliminary Injunction Motion filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Proposed Order)(Arulanantham, Ahilan) (Entered: 12/06/2010)
12/07/2010 138 ORDER GRANTING RESPONDENTS' MOTION FOR ENLARGEMENT OF PAGE LIMITATIONS by Judge Terry J. Hatter, Jr.: re Stipulation for Enlargement of Page Limitations for memoranda submitted regarding Respondents motion for judgment on the pleadings 135 is GRANTED. IT IS ORDERED that the page limitations for Respondents' memorandum in support of the motion and Petitioners' opposition memorandum are enlarged to 50 pages each, and the page limitation for Respondents' reply memorandum is enlarged to 25 pages. (gk)

(Entered: 12/08/2010)
12/07/2010 139 ORDER GRANTING JOINT STIPULATION OF BRIEFING SCHEDULE FOR RESPONDENTS' MOTION FOR JUDGMENT ON THE PLEADINGS by Judge Terry J. Hatter, Jr.: The Joint Stipulation of Briefing Schedule for Respondents' Motion for Judgment on the Pleadings 136 is GRANTED. IT IS ORDERED that Petitioners shall file their opposition to Respondents' Motion for Judgment on the Pleadings 130 on or before 12/20/2010. Respondents shall file any reply in support of their motion on or before 1/10/2011. (gk) (Entered: 12/08/2010)
12/09/2010 140 First APPLICATION for attorney Michael K.T. Tan to Appear Pro Hac Vice(PHV Fee of $275 receipt number 0973-7916085 paid.) filed by Plaintiffs Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Rabinovitz, Judy) (Entered: 12/09/2010)
12/09/2010 141 Opposition re: MOTION for Preliminary Injunction re: Seeking Relief for Petitioner Jose Farias Cornejo 133 filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Exhibit (Exhibit 1 Cover Sheet & Exhibit 2)) (Atkinson, Theodore) (Entered: 12/09/2010)
12/13/2010 142 MEMORANDUM in Opposition to MOTION for Preliminary Injunction re: Seeking Relief for Petitioner Jose Farias Cornejo 133 (CORRECTED MEMORANDUM) filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Exhibit (Exhibits 1 and 2))(Atkinson, Theodore) (Entered: 12/13/2010)
12/13/2010 143 NOTICE OF LODGING filed re MEMORANDUM in Opposition to Motion, 142 , MOTION for Preliminary Injunction re: Seeking Relief for Petitioner Jose Farias Cornejo 133 (Atkinson, Theodore) (Entered: 12/13/2010)
12/13/2010 144 ORDER by Judge Terry J. Hatter, Jr: granting 140 Application to Appear Pro Hac Vice by Attorney Michael K.T. Tan on behalf of Plaintiff Alejandro Rodriguez, designating Ahilan T. Arulanantham as local counsel. (lt) (Entered: 12/14/2010)
12/15/2010 145 NOTICE OF LODGING filed re MEMORANDUM in Opposition to Motion, 142 (Attachments: # 1 Declaration of S. Pierce (Authenticating Audio Transcripts Previously Filed))(Atkinson, Theodore) (Entered: 12/15/2010)
12/15/2010 146 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: MEMORANDUM in Opposition to Motion, 142 . The following error(s) was found: Local Rule 11-8 Memorandum brief exceeding 10 pages shall contain table of contents. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (vv) (Entered: 12/16/2010)
12/20/2010 147 OPPOSITION to MOTION for Preliminary Injunction re: Seeking Relief for Petitioner Jose Farias Cornejo 133 AMENDED (adding tables per Court's order)

filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Atkinson, Theodore) (Entered: 12/20/2010)
12/20/2010 148 REPLY in Support of MOTION for Preliminary Injunction re: Seeking Relief for Petitioner Jose Farias Cornejo 133 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Exhibits)(Arulanantham, Ahilan) (Entered: 12/20/2010)
12/20/2010 149 Opposition re: Corrected MOTION for Judgment on the Pleadings 131 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Exhibit)(Arulanantham, Ahilan) (Entered: 12/20/2010)
01/03/2011 150 NOTICE filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (NOTICE OF FILING OF ADDITIONAL AUTHORITY) (Attachments: # 1 Supplement (Additional Authority))(Atkinson, Theodore) (Entered: 01/03/2011)
01/03/2011 151 MINUTES (IN CHAMBERS) by Judge Terry J. Hatter, Jr.: On the Court's own motion, Final Pretrial Conference is hereby CONTINUED to 3/7/2011 10:00 AM before Judge Terry J. Hatter. Jr. Court Reporter: Not Recorded. (gk) (Entered: 01/04/2011)
01/04/2011 152 NOTICE of Appearance (Kaufman, Michael) (Entered: 01/04/2011)
01/10/2011 153 REPLY in support Corrected MOTION for Judgment on the Pleadings 131 filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Atkinson, Theodore) (Entered: 01/10/2011)
01/18/2011 154 NOTICE Notice of Filing of Exhibit in Support of Opposition to Petitioner Cornejo's Motion for a Preliminary Injunction filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Exhibit (Exhibit 2 -- Written Transcripts of Previously Filed Audio Recordings))(Atkinson, Theodore) (Entered: 01/18/2011)
01/27/2011 155 ORDER by Judge Terry J. Hatter, Jr.: It is Ordered that Defendant's Motion for Judgment on the Pleadings 130 be, and hereby is, Denied. (gk) (Entered: 01/27/2011)
01/28/2011 156 Notice of Withdrawal of Motion for Preliminary Injunction, 133 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Arulanantham, Ahilan) (Entered: 01/28/2011)
02/24/2011 157 Joint STIPULATION for Protective Order filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet

Napolitano, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Proposed Order)(Atkinson, Theodore) (Entered: 02/24/2011)
02/28/2011 158 ORDER Granting Stipulation re Protective Order, 157 by Judge Terry J. Hatter, Jr. IT IS ORDERED that the April 19, 2010 Protective Order 78 extends and applies to the production made by Respondents on February 24, 2011, of a roster of the names, alien numbers, locations, and attorney contact information, if any, for all immigration detainees currently detained for six months or longer in the Central District of California. (lom) (Entered: 03/01/2011)
03/01/2011 159 Joint STIPULATION to Vacate Final Pre Trial Conference Date Minutes of In Chambers Order/Directive - no proceeding held, Set/Reset Hearing 151 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Proposed Order)(Arulanantham, Ahilan) (Entered: 03/01/2011)
03/02/2011 160 ORDER granting Stipulation to Vacate, 159 by Judge Terry J. Hatter, Jr. The hearing date scheduled on March 7, 2011 for the parties' final pre-trial conference is hereby vacated. The Court will set a new date for the final pre-trial conference after the parties have resolved their discovery disputes before the Magistrate Judge. (lom) (Entered: 03/03/2011)
03/08/2011 161 ORDER by Judge Terry J. Hatter, Jr: granting 101 Plaintiff's Motion for class certification. (see attached document for details.) (lom) (Entered: 03/09/2011)
03/22/2011 162 ORDER RE SETTLEMENT CONFERENCE by Magistrate Judge Robert N. Block. This case has been referred to Magistrate Judge Robert N. Block for settlement proceedings. The Settlement Conference is placed on calendar for April 8, 2011 at 9:00 a.m. in Courtroom 6D of the Ronald Reagan Federal Building and U.S. Courthouse, in Santa Ana, California. (See Order for complete details). Set hearings: (Settlement Conference set for 4/8/2011 at 09:00 AM before Magistrate Judge Robert N. Block.) (wr) (Entered: 03/22/2011)
04/04/2011 163 Joint STIPULATION to Vacate 4/8/11 Hearing Order, Set/Reset Deadlines/Hearings,, 162 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Proposed Order)(Arulanantham, Ahilan) (Entered: 04/04/2011)
04/04/2011 164 MINUTE ORDER (IN CHAMBERS) by Magistrate Judge Robert N. Block: In accordance with the parties joint stipulation and request, the discovery conference scheduled for April 8, 2011 (which mistakenly was calendared as a settlement conference) is ordered off calendar, and the parties are ordered to brief theiroutstanding discovery disputes under Local Rule 37 pursuant to the following schedule. (see document for further details) 163 (klg) (Entered: 04/04/2011)
04/15/2011 165 JOINT STIPULATION to Cross MOTION for Discovery and Protective Order 102 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Exhibit 32, # 2 Exhibit 33, # 3 Exhibit 34, # 4 Exhibit 35, # 5 Exhibit 36, # 6 Exhibit A to Exhibit 36, # 7 Exhibit B to Exhibit 36, # 8 Exhibit C to Exhibit 36, # 9 Exhibit D to Exhibit 36, # 10 Exhibit 37, # 11 Exhibit 1, # 12

Exhibit 2)(Arulanantham, Ahilan) (Entered: 04/15/2011)
04/22/2011 166 SUPPLEMENT to Cross MOTION for Discovery and Protective Order 102 in support of Petitioner's Motion to Compel and Opposition to Respondents' Motion for a Protective Order filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Arulanantham, Ahilan) (Entered: 04/22/2011)
04/22/2011 167 SUPPLEMENT to Cross MOTION for Discovery and Protective Order 102 -SUPPLEMENTAL MEMORANDUM OF RESPONDENTS IN SUPPORT OF MOTION FOR PROTECTIVE ORDER, filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Atkinson, Theodore) (Entered: 04/22/2011)
04/25/2011 168 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Supplement(Motion related) 166 . The following error(s) was found: No Proof of Service attached to filing. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (ln) (Entered: 04/25/2011)
04/25/2011 169 MINUTE ORDER IN CHAMBERS by Magistrate Judge Robert N. Block: Petitioners' Motion to Compel and Respondents' Motion for Protective Order, filed 4/15/11 165 . Turning now to the three categories of discovery in dispute, the Court grants petitioners Motion and denies respondents Motion as follows: If counsel are unable to agree on the terms of such a protective order in the meantime, they are ordered to appear in person before the Court on May 10, 2011 at 9:30 a.m. for the purpose of meeting and conferring under the Courts auspices. See order for more information. (twdb) (Entered: 04/27/2011)
05/04/2011 170 EX PARTE APPLICATION for Discovery -- Application for partial Stay Pending Motion for Review or, in the Alternative, for Modification of the Discovery Order, and for One-Week continuance of May 10, 2011 Hearing filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Declaration Theodore Atkinson, # 2 Declaration Conrad Agagan, # 3 Declaration Terry Graves Sloan, # 4 Proposed Order)(Atkinson, Theodore) (Entered: 05/04/2011)
05/04/2011 171 MINUTE ORDER (IN CHAMBERS) regarding Respondents Ex Parte Application for an Order (1) Partially StayingApril 25, 2011 Discovery Order Pending Consideration of Motion forReview, or, in the Alternative, for Modification of the Discovery Order,and (2) Continuing Hearing Date on Protective Order One Week, filedMay 4, 2011 by Magistrate Judge Robert N. Block: Although the Court will defer ruling on the first part of respondents Ex ParteApplication until after it reviews the opposition being filed by petitioners on May 9,2011, the Court has decided to grant the second part of respondents Ex ParteApplication as follows. When the Court rules on the first part of respondents Ex ParteApplication, the Court will set a new date for counsel to appear in person before theCourt for the purpose of meeting and conferring under the Courts

auspices, if counselhave not been able to agree on the terms of a protective order in the meantime. 170 . (klg) (Entered: 05/04/2011)
05/09/2011 172 NOTICE OF MOTION AND MOTION for Review of April 25, 2011 Discovery Order of Magistrate Judge Block filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. Motion set for hearing on 6/6/2011 at 09:30 AM before Judge Terry J. Hatter Jr. (Attachments: # 1 Declaration Conrad Agagan, # 2 Declaration Terry Graves Sloan, # 3 Declaration Theodore W. Atkinson, # 4 Proposed Order) (Atkinson, Theodore) (Entered: 05/09/2011)
05/09/2011 173 Opposition re: EX PARTE APPLICATION for Discovery -- Application for partial Stay Pending Motion for Review or, in the Alternative, for Modification of the Discovery Order, and for One-Week continuance of May 10, 2011 Hearing 170 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Exhibits)(Arulanantham, Ahilan) (Entered: 05/09/2011)
05/10/2011 174 REPLY in Support EX PARTE APPLICATION for Discovery -- Application for partial Stay Pending Motion for Review or, in the Alternative, for Modification of the Discovery Order, and for One-Week continuance of May 10, 2011 Hearing 170 filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Atkinson, Theodore) (Entered: 05/10/2011)
05/11/2011 175 MINUTES (IN CHAMBERS): ORDER by Magistrate Judge Robert N. Block: re: Respondents' Ex Parte Application for an Order (1) Partially Staying April 25, 2011 Discovery Order Pending Consideration of Motion for Review, or, in the Alternative, for Modification of the Discovery Order, and (2) Continuing Hearing Date on Protective Order One Week, filed May 4, 2011 (document #170). Court has decided to grant respondent's Ex Parte Application for a partial stay of the Court's April 25, 2011 discovery order pending Judge Hatter's ruling on respondents' motion for review. (See document for further details.) As for the protective order issue, if counsel are unable to agree on the terms of an appropriate protective order that addresses the issues raised by respondent on page 47, lines 21-24 of the Joint Stipulation in the meantime, counsel are ordered to appear in person before the Court on June 14, 2011 at 9:30 a.m. for the purpose of meeting and conferring under the Court's auspices. (rla) (Entered: 05/11/2011)
05/16/2011 176 Opposition re: MOTION for Review of April 25, 2011 Discovery Order of Magistrate Judge Block 172 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Arulanantham, Ahilan) (Entered: 05/16/2011)
05/17/2011 177 NOTICE of Withdrawal of Appearance filed by Respondents Lee Baca, Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Sammy Jones, Mike Kreuger, Wesley Lee, George Molinar, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow, Paul Walters. (Walker, Elizabeth) (Entered: 05/17/2011)

05/17/2011 178 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Notice (Other), Notice (Other) 177 . The following error(s) was found: Incorrect event selected. The correct event is: Notice of Change of Attorney Information. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (db) (Entered: 05/19/2011)
05/23/2011 179 REPLY in Support MOTION for Review of April 25, 2011 Discovery Order of Magistrate Judge Block 172 filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Atkinson, Theodore) (Entered: 05/23/2011)
06/08/2011 180 EX PARTE APPLICATION to Supplement Petitioners' Opposition to Respondents' Motion for Review of Magistrate Judge Block's Order of April 25, 2011 re Objection/Opposition (Motion related), Objection/Opposition (Motion related) 176 filed by Plaintiffs Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Supplemental Memorandum in Opposition to Respondents' Motion for Review, # 2 Exhibits)(Arulanantham, Ahilan) (Entered: 06/08/2011)
06/08/2011 181 NOTICE OF LODGING filed re EX PARTE APPLICATION to Supplement Petitioners' Opposition to Respondents' Motion for Review of Magistrate Judge Block's Order of April 25, 2011 re Objection/Opposition (Motion related), Objection/Opposition (Motion related) 176 EX PARTE APPLICATION to Supplement Petitioners' Opposition to Respondents' Motion for Review of Magistrate Judge Block's Order of April 25, 2011 re Objection/Opposition (Motion related), Objection/Opposition (Motion related) 176 EX PARTE APPLICATION to Supplement Petitioners' Opposition to Respondents' Motion for Review of Magistrate Judge Block's Order of April 25, 2011 re Objection/Opposition (Motion related), Objection/Opposition (Motion related) 176 180 (Attachments: # 1 Proposed Order)(Arulanantham, Ahilan) (Entered: 06/08/2011)
06/13/2011 182 ORDER by Judge Terry J. Hatter, Jr: granting 180 Petitioner's Ex Parte Application for Leave to File Petitioner's Supplemental Memorandum. Petitioner's Supplemental Memorandum in Opposition to Respondents' Motion for Review, submitted in docket number 180, is hereby deemed filed. (lom) (Entered: 06/14/2011)
06/13/2011 185 SUPPLEMENT MEMORANDUM IN OPPOSITION TO RESPONDENTS' MOTION for Review of April 25, 2011 Discovery Order of Magistrate Judge Block 172 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (lom) (Entered: 06/21/2011)
06/14/2011 183 MINUTES OF Discovery Conference held before Magistrate Judge Robert N. Block: (See document for details.) The parties will specify in the joint stipulation the issues on which the Court will still need to rule in the event that either the District Judge has not ruled on the Government's motion by July 12, 2011 or the District Judge has granted the Government's motion. Court Recorder: CS

6/14/2011. (rla) (Entered: 06/15/2011)
06/15/2011 184 SUPPLEMENT to MOTION for Review of April 25, 2011 Discovery Order of Magistrate Judge Block 172 filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Atkinson, Theodore) (Entered: 06/15/2011)
06/28/2011 186 Joint STIPULATION for Protective Order filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Proposed Order)(Atkinson, Theodore) (Entered: 06/28/2011)
07/05/2011 187 Joint STIPULATION for Extension of Time to File Joint Stipulation on Discovery Motion Regarding Restricted Documents filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Proposed Order)(Atkinson, Theodore) (Entered: 07/05/2011)
07/06/2011 188 STIPULATED PROTECTIVE ORDER by Magistrate Judge Robert N. Block re Stipulation for Protective Order, 186 . This matter comes before this Court on the parties' joint stipulation for the entry of a protective order governing confidential information. (See Protective Order for details). (wr) (Entered: 07/06/2011)
07/06/2011 189 ORDER REGARDING BRIEFING SCHEDULE by Magistrate Judge Robert N. Block, re Stipulation for Extension of Time to File, 187 . (See document for details). It is HEREBY ORDERED that on or before July 19, 2011, the parties shall file a joint stipulation setting forth their respective positions on their disagreement over the production of information protected or restricted from disclosure by statute or regulation. (wr) (Entered: 07/06/2011)
07/19/2011 190 NOTICE OF MOTION AND MOTION for Protective Order for Discovery, MOTION to Compel Discovery filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. Motion set for hearing on 7/26/2011 at 09:30 AM before Judge Terry J. Hatter Jr. (Atkinson, Theodore) (Entered: 07/19/2011)
07/19/2011 191 JOINT STIPULATION to MOTION for Protective Order for Discovery MOTION to Compel Discovery 190 filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Exhibit (A - E (Exhibits to Respondents' Contentions), # 2 Exhibit (45 - 48 (Exhibits to Petitioners' Contentions))(Atkinson, Theodore) (Entered: 07/19/2011)
07/20/2011 192 NOTICE OF MOTION AND Corrected MOTION for Protective Order for Discovery, Corrected MOTION to Compel Discovery filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. Motion set for hearing on 7/26/2011 at 09:30

AM before Magistrate Judge Robert N. Block. (Atkinson, Theodore) (Entered: 07/20/2011)
07/20/2011 193 JOINT STIPULATION to Corrected MOTION for Protective Order for DiscoveryCorrected MOTION to Compel Discovery 192 9CORRECTED JOINT STIPULATION) filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Exhibit (A - E (Respondents' Exhibits)), # 2 Exhibit (45 - 48 (Petitioners' Exhibits)))(Atkinson, Theodore) (Entered: 07/20/2011)
07/25/2011 194 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Corrected MOTION to Compel Discovery 192 . The following error(s) was found: Hearing information is not timely. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (ln) (Entered: 07/25/2011)
07/25/2011 195 MINUTES (IN CHAMBERS): ORDER by Magistrate Judge Robert N. Block: Respondents' Motion for Protective Order/Petitioners' Motion to Compel 192 : Accordingly, the hearing noticed for July 26, 2011 is ordered off calendar and the Court now rules as follows. 1. With respect to the category of asylum claim related information, the Courtfinds that there is language in 8 C.F.R. § 208.6 that arguably bars by implication disclosure in judicial proceedings other than those enumerated in § 208.6(c)(2). Accordingly, the Government need only produce this information for class members who provide written consent. 2. With respect to the category of VAWA and "T" and "U" visa applicant information, the Court finds that there is language in 8 U.S.C. § 1367 that arguably bars by implication disclosure in judicial proceedings other than those enumerated in § 1367(b)(3). Accordingly, the Government need only produce this information for class members who provide written consent. 3. With respect to the category of battered spouse or child information, for the reasons stated by petitioners, (a) the Government's motion for a protective order barring the disclosure of the information and/or permitting the redaction of the information is denied, and (b) petitioners' motion to compel is granted. The Government is ordered to produce this information, but only for class members currently detained, within twentyeight days of this ruling. (rla) (Entered: 07/25/2011)
07/29/2011 196 ORDER re 172 by Judge Terry J. Hatter, Jr. The Court has considered 172 Respondent's motion for review of, and objections to, Judge Block's discovery order of April 25, 2011, together with the moving and opposing papers. It is Ordered that the motion be, and hereby is, Denied, and the objections are overruled. (lom) (Entered: 08/01/2011)
08/05/2011 197 Joint STIPULATION for Order Extending Discovery Deadline & Shortening Briefing Schedule Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Proposed Order)(Kaufman, Michael) (Entered: 08/05/2011)
08/09/2011 198 ORDER by Magistrate Judge Robert N. Block, GRANTING JOINT Stipulation regarding Discover deadline and for a Shortened briefing Schedule Under Local

Rule 37-2 197 : 1. Respondents shall produce the information subject to the Courts July 25, 2011 Order on a rolling basis to be completed by September 30, 2011; and 2. On or before August 11, 2011, the parties shall file a joint stipulation setting forth their respective positions on Petitioners motion for reconsideration and/or clarification. (rla) (Entered: 08/09/2011)
08/11/2011 199 NOTICE OF MOTION AND MOTION for Reconsideration re Order on Motion for Protective Order, Order on Motion to Compel,,,,,,,,,, 195 filed by Plaintiffs Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Kaufman, Michael) (Entered: 08/11/2011)
08/11/2011 200 JOINT STIPULATION to MOTION for Reconsideration re Order on Motion for Protective Order, Order on Motion to Compel,,,,,,,,,, 195 MOTION for Reconsideration re Order on Motion for Protective Order, Order on Motion to Compel,,,,,,,,,, 195 199 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Petitioners' Exhibits, # 2 Respondents' Exhibits) (Kaufman, Michael) (Entered: 08/11/2011)
08/15/2011 201 MINUTES (IN CHAMBERS): ORDER by Magistrate Judge Robert N. Block: denying 199 Motion for Reconsideration and/or Clarification of the Court's 7/25/11 order, filed 8/11/11. See minute order for more information.s (twdb) (Entered: 08/15/2011)
08/29/2011 202 NOTICE OF MOTION AND MOTION for Review of Magistrate Judge's Order of August 15, 2011 re Order on Motion for Reconsideration of Discovery Matter 201 filed by Plaintiffs Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Memorandum, # 2 Proposed Order)(Kaufman, Michael) (Entered: 08/29/2011)
09/02/2011 203 OPPOSITION to MOTION for Review of Magistrate Judge's Order of August 15, 2011 re Order on Motion for Reconsideration of Discovery Matter 201 MOTION for Review of Magistrate Judge's Order of August 15, 2011 re Order on Motion for Reconsideration of Discovery Matter 201 202 filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Atkinson, Theodore) (Entered: 09/02/2011)
09/29/2011 204 Joint STIPULATION for Discovery as to A-File Production filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Mike Kreuger, Wesley Lee, Janet Napolitano. (Attachments: # 1 Proposed Order)(Atkinson, Theodore) (Entered: 09/29/2011)
09/29/2011 205 ORDER by Magistrate Judge Robert N. Block, GRANTING JOINT Stipulation for Extension of Discovery Deadline 204 : IT IS ORDERED that Respondents shall produce the information subject to the Court's July 25, 2011 Order on a rolling basis to be completed by October 7, 2011. (rla) (Entered: 09/29/2011)
11/14/2011 206 NOTICE of Related Case(s) filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G

Snow. Related Case(s): 11-01287 (Attachments: # 1 Exhibit (Exhibits 1 to 3)) (Atkinson, Theodore) (Entered: 11/14/2011)

11/21/2011 207 STATEMENT Re Respondents' Notice of Related Case filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas re: Notice of Related Case(s), Notice of Related Case(s) 206 . (Arulanantham, Ahilan) (Entered: 11/21/2011)

12/28/2011 208 NOTICE of Related Case(s) filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. Related Case(s): 11-01786 (Attachments: # 1 Exhibit Exhibit 1)(Atkinson, Theodore) (Entered: 12/28/2011)

04/16/2012 209 MINUTE ORDER IN CHAMBERS - ORDER AND NOTICE TO ALL PARTIES by Judge Terry J. Hatter, Jr. Counsel are hereby notified that case Ngaywa v. Holder, et al, SA CV 11-01287-TJH (FMO) is consolidated with Rodriguez v. Robbins, CV 07-3239-TJH (RNB) for all purposes. Until a further order by the Court, any documents filed by the parties in the consolidated actions shall bear both case numbers, followed by the word "consolidated." CV 07-3239-TJH (RNB) will be the lead case. (lom) (Entered: 04/16/2012)

04/16/2012

Notice of Electronic Filing re Minutes of In Chambers Order/Directive - no proceeding held, Set/Clear Flags,, 209 e-mailed to jstark@aclu-sc.org bounced due to 550 5.1.1 RESOLVER.ADR.RecipNotFound; not found. The primary email address associated with the attorney record has been deleted. Pursuant to the General Order and Local Rules it is the attorneys obligation to maintain all personal contact information including e-mail address in the CM/ECF system. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(tyw) TEXT ONLY ENTRY (Entered: 04/16/2012)

05/03/2012 210 ORDER by Judge Terry J. Hatter, Jr. Accordingly, IT IS ORDERED that: 1. Petitioners' 202 Motion for Review be, and hereby is, GRANTED. 2. Within thirty days of the date of this order, the parties shall submit a stipulation to the Magistrate Judge for the purpose of maintaining the confidentiality of the compelled information. 3. After the Magistrate Judge accepts the stipulation, or issues its own order, regarding confidentiality, Respondents shall produce the requested information to Petitioners in a manner consistent with this order. (READ ORDER CAREFULLY) (ys) (Entered: 05/04/2012)

05/04/2012 211 NOTICE of Related Case(s) filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. Related Case(s): 12-cv-03696 (Attachments: # 1 Exhibit 1)(Atkinson, Theodore) (Entered: 05/04/2012)

05/04/2012 212 NOTICE of Related Case(s) filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. CORRECTED NOTICE OF RELATED CASE Related Case(s): 12-cv03696 (Attachments: # 1 Exhibit 1)(Atkinson, Theodore) (Entered: 05/04/2012)

05/15/2012 213 Mail Returned addressed to Frederick Ngaywa re Order on Motion for Review

210 , not deliverable as addressed, unable to forward. (gk) (Entered: 05/16/2012)
06/04/2012 214 Joint STIPULATION for Extension of Time to File Joint Stipulation for a Protective Order filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Proposed Order)(Atkinson, Theodore) (Entered: 06/04/2012)
06/04/2012 215 Joint STIPULATION to Vacate May 3 Order on Motion for Review,, 210 (Joint Stipulation for PARTIAL Vacatur) filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Proposed Order)(Atkinson, Theodore) (Entered: 06/04/2012)
06/04/2012 216 NOTICE of Related Case(s) filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. Related Case(s): 12-cv-03754 (Attachments: # 1 Exhibit 1)(Atkinson, Theodore) (Entered: 06/04/2012)
06/05/2012 217 Joint STIPULATION for Extension of Time to File Joint Stipulation for a Protective Order filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Proposed Order)(Arulanantham, Ahilan) (Entered: 06/05/2012)
06/06/2012 218 ORDER GRANTING JOINT STIPULATION FOR PARTIAL VACATUR OF MAY 3, 2012 ORDER ONPETITIONERS MOTION FOR REVIEW, 215 by Judge Terry J. Hatter, Jr. (rrey) (Entered: 06/06/2012)
06/06/2012 219 ORDER by Judge Terry J. Hatter, Jr, granting Stipulation for Extension of Time to File, 214 . Accordingly, it is Ordered that the parties shall submit a stipulation to the Magistrate Judge by June 5, 2012 for the purpose of maintaining the confidentiality of information subject to the Courts May 3, 2012 Order. (rrey) (Entered: 06/06/2012)
06/07/2012 220 ORDER GRANTING SECOND JOINT STIPULATION FOR AN EXTENSION TO FILE PROTECTIVE ORDER by Judge Terry J. Hatter, Jr.: Upon Joint Stipulation 217 , the parties' request for an extension is GRANTED. Accordingly, it is Ordered that the parties shall submit a stipulation to the Magistrate Judge by 6/8/2012 for the purpose of maintaining the confidentiality of information subject to the Court's 5/3/2012 Order. (gk) (Entered: 06/07/2012)
06/08/2012 221 NOTICE OF MOTION AND Joint MOTION for Protective Order for Governing Confidential and Highly Confidential Information filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. Motion set for hearing on 6/22/2012 at 09:00 AM before Magistrate Judge Robert N. Block. (Atkinson, Theodore) (Entered: 06/08/2012)
06/08/2012 222 JOINT STIPULATION to Joint MOTION for Protective Order for Governing

Confidential and Highly Confidential Information 221 filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Proposed Order (Petitioners' Proposed Order), # 2 Proposed Order (Respondents' Proposed Order))(Atkinson, Theodore) (Entered: 06/08/2012)
06/11/2012 224 MINUTES (IN CHAMBERS): ORDER by Magistrate Judge Robert N. Block: re: The Parties' Respective Motions for Entry of Protective Order, filed June 8, 2012: Based on its review of the Joint Stipulation, the Court has concluded that oral argument will not be of material assistance to the Courts determination of these Motions. Accordingly, the Court now rules as follows with respect to the four issues in dispute. (rla) (Entered: 06/12/2012)
06/12/2012 223 Amendment to Joint MOTION for Protective Order for Governing Confidential and Highly Confidential Information 221 (AMENDED NOTICE OF MOTION) filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Atkinson, Theodore) (Entered: 06/12/2012)
06/13/2012 225 MINUTE ORDER IN CHAMBERS by Magistrate Judge Robert N. Block: re: The Amended Notice of Motion and Motion for Entry of Protective 223 : The Court presumes that counsel were unaware of the Court's rulings when they filed their Amended Notice of Motion and Motion. In any event, the Court will not consider any further briefing and will not hold a hearing on the Motion. Its previous order will stand. If either of the parties disagrees with the Court's rulings, they are welcome to seek review from the District Judge. (rla) (Entered: 06/14/2012)
06/14/2012 226 JOINT STIPULATION to Joint MOTION for Protective Order for Governing Confidential and Highly Confidential Information 221 (STIPULATED PROTECTIVE ORDER UNDER THIS COURT''S JUNE 12, 2012 ORDER) filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Proposed Order (STIPULATED PROTECTIVE ORDER))(Atkinson, Theodore) (Entered: 06/14/2012)
06/15/2012 227 STIPULATED PROTECTIVE ORDER by Magistrate Judge Robert N. Block, GOVERNING CONFIDENTIAL AND HIGHLY CONFIDENTIAL INFORMATION, re Joint Stipulation 226 : It is HEREBY ORDERED that this Court's July 6, 2011 Protective Order (ECF 188) is hereby superseded as follows: (See document for details.) (rla) (Entered: 06/15/2012)
06/20/2012 228 NOTICE of Appearance (Jacobs, Cody) (Entered: 06/20/2012)
06/20/2012 229 NOTICE of Appearance (Commons, Sean) (Entered: 06/20/2012)
06/20/2012 230 OF SERVICE filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas, re Notice of Appearance 229 , Notice of Appearance 228 served on June 20, 2012. (Jacobs, Cody) (Entered: 06/20/2012)

06/21/2012 231 NOTICE of Appearance filed by attorney Michael Bryan Kaufman on behalf of Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas (Kaufman, Michael) (Entered: 06/21/2012)
06/25/2012 232 NOTICE OF MOTION AND MOTION for Preliminary Injunction.. If this is filed during normal business hours, please contact the courtroom deputy assigned to the judge. If you are filing this document after 5:00 Monday through Friday, on a weekend or holiday, and need immediate judicial review, please call 213-8942485 to advise that a Preliminary Injunction has been electronically filed. Failure to call the courtroom deputy, or the after hours filing contact number, may result in a delay of judicial review. Motion filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Memorandum, # 2 Exhibits, # 3 Proposed Order)(Arulanantham, Ahilan) (Entered: 06/25/2012)
06/26/2012 233 NOTICE of Manual Filing filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas of Ex Parte Application for Under Seal Filing, Proposed Order Granting Ex Parte Application for Under Seal Filing, Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction, Ex. 51. (Arulanantham, Ahilan) (Entered: 06/26/2012)
06/26/2012 234 STIPULATION for Order to Set a Schedule for Pre-Trial Matters filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Proposed Order) (Atkinson, Theodore) (Entered: 06/26/2012)
06/26/2012 235 EX PARTE APPLICATION for Under Seal Filing filed by Petitioners Alejandro Rodriguez, Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Abel Perez Ruelas. Lodged Proposed Order.(gk) (Entered: 06/27/2012)
06/27/2012 236 SEALED DOCUMENT - PETITIONERS' MEMORANDUM OF POINTS AND AUTHORITIES in Support of MOTION for Preliminary Injunction. (jp) (Entered: 06/28/2012)
06/27/2012 238 ORDER GRANTING UNDER SEAL FILING by Judge Terry J. Hatter, Jr.: Petitioners' Ex Parte Application for Under Seal Filing 235 is hereby GRANTED and the unredacted version of Petitioners' Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction, and Exhibit 51 are hereby SEALED. (gk) (Entered: 06/29/2012)
06/28/2012 237 SCHEDULING ORDER by Judge Terry J. Hatter, Jr.: Upon Stipulation 234 , Any motion to join another party or to amend a pleading shall be filed and served on or before 8/27/2012. Fact Discovery cut-off 9/24/2012. Expert Discovery cut-off 9/24/2012. The parties shall disclose any expert called to rebut the testimony of another party's expert in accordance with Fed. R. Civ. P. 26(a)(2) on or before 11/7/2012. Expert discovery shall close on 11/20/2012. Dispositive Motions due by 12/7/2012. The parties shall file any opposition or response to a dispositive motion on or before 1/4/2013. The parties shall file any reply in support of a

dispositive motion on or before 1/18/2013. (gk) (Entered: 06/29/2012)
07/03/2012 239 ORDER SETTING FINAL PRETRIAL CONFERENCE AND REFERRING DISCOVERY by Judge Terry J. Hatter, Jr.: It is Ordered that all discovery matters which become at issue are referred to Magistrate Judge Robert N. Block for his consideration. Please contact the courtroom deputy clerk to the Magistrate Judge regarding these matters. Final Pretrial Conference set for 3/18/2013 10:00 AM before Judge Terry J. Hatter, Jr. See document for details. (gk) (Entered: 07/03/2012)
07/03/2012 240 Mail Returned addressed to Frederick Ngaywa re Minute Order (In Chambers) re Motion for Entry of Protective Order 224 . (gk) (Entered: 07/05/2012)
07/11/2012 241 Mail Returned addressed to Frederick Ngaywa re Order on Ex Parte Application to Seal (Document), Order on Ex Parte Application to Seal (Document) 238 . (rrp) (Entered: 07/12/2012)
07/17/2012 242 Mail Returned addressed to Frederick Ngaywa re Order Granting Joint Stipulation for Partial Vacatur of 5/3/2012 Order 218 . (gk) (Entered: 07/17/2012)
07/17/2012 243 Mail Returned addressed to Frederick Ngaywa re Order 219 . (gk) (Entered: 07/17/2012)
07/17/2012 244 Mail Returned addressed to Frederick Ngaywa re Order Granting Second Joint Stipulation for an Extension to File Protective Order 220 . (gk) (Entered: 07/17/2012)
07/17/2012 245 Mail Returned addressed to Frederick Ngaywa re Minutes of In Chambers Order/Directive by U.S. Magistrate Judge 225 . (gk) (Entered: 07/17/2012)
07/17/2012 246 Mail Returned addressed to Frederick Ngaywa re Stipulated Protective Order 227 . (gk) (Entered: 07/17/2012)
07/17/2012 247 Mail Returned addressed to Frederick Ngaywa re Scheduling Order 237 . (gk) (Entered: 07/17/2012)
07/17/2012 248 Mail Returned addressed to Frederick Ngaywa re Order Setting Final Pretrial Conference and Referring Discovery 239 . (gk) (Entered: 07/17/2012)
07/18/2012 249 Joint STIPULATION to Exceed Page Limitation as to Respondents' Opposition and Petitioners' Reply, Joint STIPULATION for Extension of Time to File Reply as to MOTION for Preliminary Injunction.. If this is filed during normal business hours, please contact the courtroom deputy assigned to the judge. If you are filing this document after 5:00 Monday through Friday, on a weekend or holiday, and need immediate 232 filed by Respondents Timothy Robbins. (Attachments: # 1 Proposed Order)(Atkinson, Theodore) (Entered: 07/18/2012)
07/18/2012 250 OPPOSITION to MOTION for Preliminary Injunction.. If this is filed during normal business hours, please contact the courtroom deputy assigned to the judge. If you are filing this document after 5:00 Monday through Friday, on a weekend or holiday, and need immediate 232 filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins. (Attachments: # 1 Declaration Theodore W. Atkinson, # 2 Declaration Benjamin B. McDowell, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7

Exhibit E)(Atkinson, Theodore) (Entered: 07/18/2012)
07/23/2012 251 ORDER GRANTING JOINT STIPULATION FOR ENLARGEMENT OF PAGES FOR BRIEFING THE MOTION FOR A PRELIMINARY INJUNCTION AND FOR EXTENSION OF THE HEARING DATE ON PETITIONERS' MOTION by Judge Terry J. Hatter, Jr.: The parties' Joint Stipulation for the enlargement of page limitations for briefing Petitioners' Motion for a Preliminary Injunction 249 is GRANTED. IT IS ORDERED that the page limitation for Respondents' memorandum in opposition to Petitioners' motion for a preliminary injunction motion is enlarged to 35 pages, and the page limitation for Petitioners' reply memorandum is enlarged to 35 pages. Petitioners' shall file their reply in support of their motion for a preliminary injunction on or before August 3, 2012. The Motion for Preliminary Injunction 232 will be set for hearing on 9/10/2012 at 10:00 PM before Judge Terry J. Hatter, Jr. (gk) (Entered: 07/24/2012)
08/03/2012 252 REPLY IN SUPPORT OF MOTION for Preliminary Injunction.. If this is filed during normal business hours, please contact the courtroom deputy assigned to the judge. If you are filing this document after 5:00 Monday through Friday, on a weekend or holiday, and need immediate 232 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Exhibit 51, # 2 Exhibit 52, # 3 Exhibit 53, # 4 Exhibit 54, # 5 Exhibit 55, # 6 Exhibit 56, # 7 Exhibit 57, # 8 Exhibit 58, # 9 Exhibit 59)(Commons, Sean) (Entered: 08/03/2012)
08/06/2012 253 Mail Returned addressed to Frederick Ngaywa re Order Granting Joint Stipulation for Enlargement of Pages for Beifing the Motion for a Preliminary Injunction, etc. 251 . (gk) (Entered: 08/07/2012)
09/10/2012 254 MINUTES OF Motion Hearing held before Judge Terry J. Hatter, Jr.: The Court and counsel confer. Following discussions with counsel, the Court will take Petitioner's Motion for Preliminary Injunction 232 under submission. A written order will follow within 7 days. Court Recorder: CS 9/10/2012. (gk) (Entered: 09/13/2012)
09/13/2012 255 ORDER AND PRELIMINARY INJUNCTION by Judge Terry J. Hatter, Jr.: It is Ordered that Petitioners' Motion for Preliminary Injunction 232 is Granted. It is further Ordered that Respondents and their agents, employees, assigns, and all those acting in concert with them, are preliminarily enjoined as follows: Within thirty days of the date of this order, Respondents shall identify all members of the Section 1225(b) and Section 1226(c) Subclasses and provide each of them with a bond hearing before an Immigration Judge with power to grant their release. See document for details. (gk) (Entered: 09/13/2012)
09/17/2012 256 EX PARTE APPLICATION to Stay pending Appeal re: Order on Motion for Preliminary Injunction,, 255 filed by Respondents Lee Baca, Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Sammy Jones, Mike Kreuger, Wesley Lee, George Molinar, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow, Paul Walters. (Attachments: # 1 Memorandum, # 2 Declaration Declaration of Thomas Y.K. Fong, # 3 Declaration Declaration of Eric Saldana, # 4 Declaration Declaration of Erez Reuveni, # 5 Declaration Declaration of Theodore W. Atkinson, # 6 Proposed

Order)(Reuveni, Erez) (Entered: 09/17/2012)
09/18/2012 257 ORDER by Judge Terry J. Hatter, Jr. The Court has considered Respondents' 256 ex parte application for an emergency stay of the preliminary injunction pending appeal, together with the moving papers. IT IS ORDERED that the ex parte application be, and hereby is, DENIED. (ys) (Entered: 09/18/2012)
09/19/2012 258 NOTICE of Appearance (Wilson, Sarah) (Entered: 09/19/2012)
09/21/2012 259 NOTICE OF APPEAL to the 9th CCA filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. Appeal of Order on Motion for Preliminary Injunction,, 255 (Appeal fee FEE WAIVED.) (Attachments: # 1 Exhibit Order and Preliminary Injunction)(Atkinson, Theodore) (Entered: 09/21/2012)
09/21/2012 260 NOTIFICATION by Circuit Court of Appellate Docket Number 12-56734, 9TH CCA regarding Notice of Appeal to 9th Circuit Court of Appeals, 259 as to Respondents. (car) (Entered: 09/24/2012)
09/25/2012 261 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 259 filed by Mike Kreuger, Janet Napolitano, Davis Nighswonger, Arthur Edwards, Thomas G Snow, Sandra Hutchens, Eric Holder, Russell Davis, Rodney Penner, Timothy Robbins, Wesley Lee, Nguyen CCA # 12-56734. The appeal filed September 21, 2012 is a preliminary injunction appeal. The mediation questionnaire is due three days after the date of this order. If they have not already done so, within 7 calendar days after the filing date of this order, the parties shall make arrangements to obtain from the court reporter an official transcript of proceedings in the district court that will be included in the record on appeal. The briefing schedule shall proceed as follows: the opening brief and excerpts of record are due November 16, 2012 or 28 days after service of the opening brief, whichever is earlier; and the optional reply brief is due within 14 days after service of the answering brief. Failure to file timely the opening brief shall result in the automatic dismissal of this appeal by the Clerk for failure to prosecute. Order received in this district on 9/25/2012. (dmap) (Entered: 09/27/2012)
09/25/2012 262 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 259 filed by Mike Kreuger, Janet Napolitano, Davis Nighswonger, Arthur Edwards, Thomas G Snow, Sandra Hutchens, Eric Holder, Russell Davis, Rodney Penner, Timothy Robbins, Wesley Lee, Nguyen CCA # 12-56734. Respondents' emergency motion is denied. The panel will stay the district court's injunction until October 13, 2012. Respondents now have until November 12, 2012 to comply with the district court's injunction. Order received in this district on 9/25/2012. (dmap) (Entered: 09/27/2012)
10/01/2012 263 NOTICE of Change of Attorney Information for attorney Ahilan T Arulanantham counsel for Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas.Jennifer Stark is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G-06 Notice. Filed by Petitioners Ahilan Arulanantham (Arulanantham, Ahilan) (Entered: 10/01/2012)
10/01/2012 264 NOTICE of Change of Attorney Information for attorney Ahilan T Arulanantham

counsel for Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas.Fatima Alloo is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G-06 Notice. Filed by Petitoners Ahilan Arulanantham (Arulanantham, Ahilan) (Entered: 10/01/2012)
10/04/2012 265 Mail Returned addressed to Frederick Ngaywa re USCA Order 261 . (dmap) (Entered: 10/10/2012)
10/04/2012 266 Mail Returned addressed to Frederick Ngaywa re USCA Order 262 . (dmap) (Entered: 10/10/2012)
10/09/2012 274 Mail Returned addressed to Efren Orozco, ID A200-707-831, 501 The City drive South, Orange, CA 92868 re USCA Order 262 (rla) (Entered: 10/19/2012)
10/09/2012 276 Mail Returned addressed to Efren Orozco, PrisonerID A200-707-831, 501 The City Drive South, Orange, CA 92868 re 9th CCA Assigned Case Number Notice 260 (rla) (Entered: 10/19/2012)
10/15/2012 275 Mail Returned addressed to Efren Orozco, PrisonerID A200-707-831, 501 The City drive South, Orange, CA 92868 re USCA Order 261 (rla) (Entered: 10/19/2012)
10/18/2012 267 Mail Returned addressed to Frederick Ngaywa re 9th CCA Assigned Case Number Notice 260 . (gk) (Entered: 10/18/2012)
10/18/2012 268 Mail Returned addressed to Frederick Ngaywa re Order on Ex Parte Application for Emergency Stay 257 . (gk) (Entered: 10/18/2012)
10/18/2012 269 Mail Returned addressed to Frederick Ngaywa re Order and Preliminary Injunction 255 . (gk) (Entered: 10/18/2012)
10/18/2012 270 Mail Returned addressed to Frederick Ngaywa re Minutes re Motion for Preliminary Injunction 254 . (gk) (Entered: 10/18/2012)
10/18/2012 271 Mail Returned addressed to Efren Orozco re Order on Ex Parte Application for Emergency Stay 257 . (gk) (Entered: 10/18/2012)
10/18/2012 272 Mail Returned addressed to Efren Orozco re Order and Preliminary Injunction 255 . (gk) (Entered: 10/18/2012)
10/18/2012 273 Mail Returned addressed to Efren Orozco re Minutes re Motion for Preliminary Injunction 254 . (gk) (Entered: 10/18/2012)
01/22/2013 277 Joint STIPULATION to Reset filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Proposed Order)(Atkinson, Theodore) (Entered: 01/22/2013)
01/23/2013 278 ORDER Granting Stipulation 277 by Judge Terry J. Hatter, Jr. It is HEREBY ORDERED that the following dates shall govern dispositive motions in this action as follows: The Petitioners shall file any dispositive motion on or before February 8, 2013. The Respondents shall file any response to Petitioner's dispositive motion, and any dispositive cross-motion, on or before March 15, 2013. The Petitioners shall file any reply in support of their dispositive motion, and any

response to a dispositive cross-motion, on or before April 5, 2013. The Respondents shall file any reply in support of a dispositive motion by April 19, 2013. The motion date shall be noticed for May 6, 2013, on any dispositive motion. There shall be no modifications to the briefing schedule absent extraordinary circumstances. It is further HEREBY ORDERED that the dispositive motions shall conform to brief lengths as follows: The brief length for Petitioners' dispositive motion shall be not more than 50 pages. The brief length for Respondents' opposition and cross-motion shall be not more than 55 pages. The brief length for Petitioners' opposition and reply shall be not more than 50 pages. The brief length for Respondents reply shall be not more than 30 pages. (lom) (Entered: 01/23/2013)
02/06/2013 279 RECORD ON APPEAL sent to Circuit Court re: Appeal number, 12-56734 Record consists of 2 volumes re Notice of Appeal to 9th Circuit Court of Appeals, 259 (cbr) (Entered: 02/07/2013)
02/08/2013 280 NOTICE of Manual Filing filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas of Ex Parte App, Prop Ord, Dec of Arulanantham & Exs. 1-168, Dec. of Jacobs & Exs. A-I. (Arulanantham, Ahilan) (Entered: 02/08/2013)
02/08/2013 281 NOTICE OF MOTION AND MOTION for Summary Judgment filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. Motion set for hearing on 5/6/2013 at 10:00 AM before Judge Terry J. Hatter Jr. (Attachments: # 1 Declaration Byron Merida, # 2 Declaration Luis E. Gonzalez, # 3 Declaration Michael Kaufman, # 4 Declaration Mercedes Victoria Castillo, # 5 Declaration Stacy Tolchin, # 6 Declaration Dr. Susan B. Long, # 7 Declaration Talia Inlender,SEALED DOCUMENT - # 8 Declaration Michael Tan, # 9 Proposed Order)(Commons, Sean) Modified on 2/13/2013 (lom). (Entered: 02/08/2013)
02/08/2013 282 STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas re: MOTION for Summary Judgment 281 (Commons, Sean) (Entered: 02/08/2013)
02/08/2013 288 EX PARTE APPLICATION to File Declaration of Ahilan T. Arulanantham, Exhibits 1-168, and Declaration of Cody Jacobs, Exhibits A-I, in Support of Petitioners' Motion for Summary Judgment or, in the Alternative, Summary Adjudication, Under Seal filed by Petitioners Alejandro Rodriguez, Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Abel Perez Ruelas. Lodged Proposed Order.(gk) (Entered: 02/12/2013)
02/11/2013 283 DECLARATION of Michael Tan in Support of MOTION for Summary Judgment 281 [CORRECTED] filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Commons, Sean) (Entered: 02/11/2013)

02/11/2013 284 EX PARTE APPLICATION for Order for TO PLACE DECLARATION OF MICHAEL TAN (DKT. 281-8) UNDER SEAL filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Proposed Order GRANTING EX PARTE APPLICATION TO PLACE DECLARATION OF MICHAEL TAN (DKT. 281-8) UNDER SEAL)(Commons, Sean) (Entered: 02/11/2013)
02/11/2013 285 Mail Returned addressed to Frederick Ngaywa re Order Re Scheduling and Briefing 278 . (gk) (Entered: 02/11/2013)
02/11/2013 286 Mail Returned addressed to Frederick Ngaywa re Order 278 . (ms) ** DUPLICATIVE DOCKET ENTRY TO DOCUMENT 285, SEE NOTICE OF CLERICAL ERROR FILED 2/12/2013 287 ** Modified on 2/12/2013 (gk). (Entered: 02/12/2013)
02/12/2013 287 NOTICE OF CLERICAL ERROR Re: Mail Returned addressed to Frederick Ngaywa filed 2/11/2013 286 . Document 286 is duplicative of docket entry 285 . (gk) (Entered: 02/12/2013)
02/12/2013 289 ORDER by Judge Terry J. Hatter, Jr: granting 284 Petitioners' Ex Parte Application to Place Declaration of Michael Tan under seal. The Clerk of the Court is hereby directed to place and maintain Docket 281-8 (Declaration of Michael Tan) UNDER SEAL. (lom) (Entered: 02/13/2013)
02/13/2013 290 ORDER GRANTING EX PARTE APPLICATION TO FILE DECLARATION OF AHILAN T. ARULANANTHAM, EXHBITS 1-168, AND DECLARATION OF CODY JACOBS, EXHIBITS A-I, IN SUPPORT OF PETITIONERS' MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION, UNDER SEAL by Judge Terry J. Hatter, Jr.: Petitioners' Ex Parte Application 288 is hereby GRANTED. The Declaration of Ahilan T. Arulanantham, Exhibits 1-168, and the Declaration of Cody Jacobs, Exhibits A-I, in Support of Petitioners' Motion for Summary Judgment, are hereby SEALED. (gk) (Entered: 02/13/2013)
02/13/2013 291 SEALED DOCUMENT- DECLARATION of Cody Jacobs in Support of Petitioners' PETITIONERS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION, Exhibits A-I. (Attachments: Part 2, Part 3, Part 4)(mat) (Entered: 02/19/2013)
02/13/2013 292 SEALED DOCUMENT- DECLARATION of Ahilan T. Arulanantham in Support of Petitioners' Motion for Summary Judgment or, in the Alternative, Summary Adjudication, Exhibits 1-168. (Attachments: Part 2, Part 3, Part 4, Part 5, Part 6, Part 7, Part 8, Part 9, Part 10, Part 11, Part 12, Part 13, Part 14, Part 15, Part 16, Part 17)(mat) (Entered: 02/19/2013)
02/19/2013 293 Mail Returned addressed to Frederick Ngaywa re Appeal Record Sent to USCA (A-26) 279 . (gk) (Entered: 02/19/2013)
03/06/2013 294 Mail Returned addressed to Frederick Ngaywa re Order Granting Ex Parte Application to File Declarations Under Seal 290 . (gk) (Entered: 03/06/2013)
03/06/2013 295 Mail Returned addressed to Frederick Ngaywa re Notice of Clerical Error (G-11) 287 . (gk) (Entered: 03/06/2013)

03/08/2013 296 NOTICE of Related Case(s) filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. Related Case(s): CV 12-10520-CJC (Attachments: # 1 Exhibits)(Kaufman, Michael) (Entered: 03/08/2013)
03/11/2013 297 Mail Returned addressed to Frederick Ngaywa re Order on Ex Parte Application to Place Declaration of Michael Tan Under Seal 289 . (gk) (Entered: 03/12/2013)
03/13/2013 298 MINUTE ORDER (IN CHAMBERS) by Judge Terry J. Hatter, Jr. On the Court's own motion, the Final Pretrial Conference is continued to 8/12/2013 at 10:00 A.M. (ys) (Entered: 03/13/2013)
03/15/2013 299 NOTICE OF MOTION AND MOTION for Summary Judgment as to as to all Claims filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. Motion set for hearing on 5/6/2013 at 10:00 AM before Judge Terry J. Hatter Jr. (Attachments: # 1 Affidavit Ben McDowell, # 2 Respondents' Local Rule 56-1 Statement of Uncontroverted Facts and Conclusions of Law in Support of Motion for Summary Judgment, # 3 Respondents Opposition to Petitioners Statement of Uncontroverted Facts and Conclusions of Law in Support of Motion for Summary Judgment or, in the Alternative, Summary Adjudication (RSOF), # 4 Proposed Order)(Atkinson, Theodore) (Entered: 03/15/2013)
03/15/2013 300 NOTICE of Manual Filing filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow of Ex Parte Application and Exhibits. (Wilson, Sarah) (Entered: 03/15/2013)
03/15/2013 301 MEMORANDUM of Points and Authorities in Opposition Re: Notice of Related Case(s), 296 (Wilson, Sarah) (Entered: 03/15/2013)
03/15/2013 302 MEMORANDUM of Points and Authorities in Opposition corrected Re: Notice of Related Case(s), 296 (Wilson, Sarah) (Entered: 03/15/2013)
03/15/2013 303 OBJECTIONS to MOTION for Summary Judgment 281 and Evidence filed in support of motion (Wilson, Sarah) (Entered: 03/15/2013)
03/18/2013 304 EX PARTE APPLICATION to File Declaration of Theodore W. Atkinson, Exhibits A-W, and the Declaration of Sarah S. Wilson, Exhibits A-F, Under Seal filed by Respondents Timothy Robbins, Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Thomas G Snow. Lodged Proposed Order. (gk) (Entered: 03/19/2013)
03/18/2013 305 ORDER GRANTING EX PARTE APPLICATION TO FILE DECLARATION OF THEODORE W. ATKINSON, EHIBITS A-W, AND THE DECLARATION OF SARAH S. WILSON, EXHIBITS A-F, UNDER SEAL by Judge Terry J. Hatter, Jr.: Respondents' Ex Parte Application to File Declaration of Theodore W. Atkinson, Exhibits A-W, and the Declaration of Sarah S. Wilson, Exhibits A-F, Under Seal 304 is hereby GRANTED. (gk) (Entered: 03/19/2013)
03/18/2013 306 SEALED DOCUMENT- DECLARATION of Sarah S. Wilson with Exhibits A-F. (Attachments: Part 2, Part 3, Part 4)(mat) (Entered: 03/19/2013)

03/18/2013 307 SEALED DOCUMENT- DECLARATION of Theodore W. Atkinson with Exhibits A-W. (Attachments: Part 2, Part 3, Part 4, Part 5, Part 6, Part 7, Part 8, Part 9)(mat) (Entered: 03/19/2013)
03/22/2013 308 REPLY filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas to Notice of Related Case(s), 296 IN SUPPORT OF NOTICE OF RELATED CASE UNDER LOCAL RULE 83-1.3.1 (Kaufman, Michael) (Entered: 03/22/2013)
04/01/2013 309 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Copy of 9th Circuit Order and Memorandum filed 3/15/2013 301 . The following error(s) was found: Title page is missing. Respondent has submitted a copy of a 9th Circuit Court of Appeals Order and Memorandum filed 2/14/2013 re Jacob Ikeokwu-Onymaechi v. Eric H. Holder, Jr., Attorney General, Docket No. 1072880, and docketed it with the event Memorandum of Points and Authorities in Opposition (non-motion), linking it to the Notice of Related Case. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (gk) (Entered: 04/02/2013)
04/05/2013 310 NOTICE of Manual Filing filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas of Ex Parte Application for Under Seal Filing, Proposed Order, Declaration of Arulanantham & Exhibits A-C. (Arulanantham, Ahilan) (Entered: 04/05/2013)
04/05/2013 311 Objection TO EVIDENCE RELIED UPON BY RESPONDENTS IN SUPPORT OF CROSS MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO PETITIONERS MOTION FOR SUMMARY JUDGMENT re: MOTION for Summary Judgment as to as to all Claims 299 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Commons, Sean) (Entered: 04/05/2013)
04/05/2013 312 Opposition TO RESPONDENTS OBJECTIONS TO EVIDENCE re: MOTION for Summary Judgment 281 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Commons, Sean) (Entered: 04/05/2013)
04/05/2013 313 OPPOSITION TO RESPONDENTS STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW re: MOTION for Summary Judgment as to as to all Claims 299 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Commons, Sean) (Entered: 04/05/2013)
04/05/2013 314 REPLY TO RESPONDENTS OPPOSITION TO STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW MOTION for Summary Judgment as to as to all Claims 299 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Commons, Sean) (Entered:

04/05/2013)
04/05/2013 315 REPLY in Support of and Opposition to MOTION for Summary Judgment 281 , MOTION for Summary Judgment as to as to all Claims 299 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. (Arulanantham, Ahilan) (Entered: 04/05/2013)
04/05/2013 316 DECLARATION of MICHAEL KAUFMAN IN SUPPORT OF PETITIONERS REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AND OPPOSITION TO RESPONDENTS CROSS-MOTION FOR SUMMARY JUDGMENT MOTION for Summary Judgment as to as to all Claims 299 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Commons, Sean) (Entered: 04/05/2013)
04/05/2013 317 DECLARATION of MICHAEL TAN IN SUPPORT OF PETITIONERS REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AND OPPOSITION TO RESPONDENTS CROSS-MOTION FOR SUMMARY JUDGMENT MOTION for Summary Judgment as to as to all Claims 299 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Commons, Sean) (Entered: 04/05/2013)
04/05/2013 318 DECLARATION of SUSAN LONG IN SUPPORT OF PETITIONERS REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AND OPPOSITION TO RESPONDENTS CROSS-MOTION FOR SUMMARY JUDGMENT MOTION for Summary Judgment as to as to all Claims 299 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Commons, Sean) (Entered: 04/05/2013)
04/05/2013 320 EXPARTE APPLICATION to File Declaration of Ahilan T Arulanantham of April 5, 2013, Exhibits A-C Under Seal filed by petitioner Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. Lodged Proposed Order.(jp) (Entered: 04/08/2013)
04/05/2013 322 SEALED DOCUMENT0 DECLARATION of Ahilan T. Arulanantham of April 5, 2013, Exhibits A-C. (Attachments: Part 2, Part 3, Part 4, Part 5, Part 6)(mat) (Entered: 04/10/2013)
04/06/2013 319 DECLARATION of MICHAEL KAUFMAN IN SUPPORT OF REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AND OPPOSITION TO RESPONDENTS CROSS-MOTION FOR SUMMARY JUDGMENT MOTION for Summary Judgment 281 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Commons, Sean) (Entered: 04/06/2013)

04/08/2013 321 ORDER GRANTING EX PARTE 320 Application to file Declaration of Ahilan T. Arulanantham of April 5, 2013, Exhibits A-C, UNDER SEAL by Judge Terry J. Hatter, Jr. IT IS SO ORDERED sealed. (ys) (Entered: 04/09/2013)
04/11/2013 323 NOTICE of Clarification filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Commons, Sean) (Entered: 04/11/2013)
04/15/2013 324 Mail Returned addressed to Frederick Ngaywa re Order on Ex Parte Application to Seal Document 305 . (jp) (Entered: 04/16/2013)
04/15/2013 325 Mail Returned Undeliverable addressed to Frederick Ngaywa re Minutes of In Chambers Order 298 . (jp) (Entered: 04/16/2013)
04/18/2013 326 Joint STIPULATION for Order amending schedule for briefing dispositive motions filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Proposed Order)(Wilson, Sarah) (Entered: 04/18/2013)
04/18/2013 327 Mail Returned addressed to Frederick Ngaywa re Order on Ex Parte Application to File Declaration Under Seal 321 . (gk) (Entered: 04/19/2013)
04/23/2013 328 ORDER RE ENTRY OF REVISED ORDER RE SCHEDULING AND BRIEFING FOR DISPOSITIVE MOTIONS by Judge Terry J. Hatter, Jr.: Upon Stipulation 326 , it is HEREBY ORDERED that the following revised dates shall govern dispositive motions in this action: (1) The Respondents shall file any reply in support of a dispositive motion by 4/26/2013. (2) The Petitioners shall file any sur-reply, not to exceed 5 pages in length, by 5/3/2013. The sur-reply will be limited to addressing the Ninth Circuit's decision in Rodriguez v. Robbins, --- F.3d ----, 2013 WL 1607706 (9th Cir. 2013). (gk) (Entered: 04/23/2013)
04/26/2013 329 OBJECTIONS to Declaration (Motion related), 318 (Wilson, Sarah) (Entered: 04/26/2013)
04/26/2013 330 REPLY in Support MOTION for Summary Judgment as to as to all Claims 299 filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Reply in Support of Statement of Uncontroverted Facts, # 2 Declaration Supplemental Declaration of Theodore W. Atkinson, # 3 Exhibit Exh. A to Atkinson Declaration, # 4 Exhibit Exhibit B to Atkinson Declaration)(Atkinson, Theodore) (Entered: 04/26/2013)
04/26/2013 331 RESPONSE filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snowto Objection/Opposition (Motion related), 311 (Attachments: # 1 Declaration Sarah S. Wilson)(Wilson, Sarah) (Entered: 04/26/2013)
05/02/2013 332 Mail Returned addressed to Frederick Ngaywa re Order Re Entry of Revised Order Re Scheduling and Briefing for Dispositive Motions 328 . (gk) (Entered: 05/02/2013)

05/03/2013 333 RESPONSE filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelasto Objections - non-motion 329 (Arulanantham, Ahilan) (Entered: 05/03/2013)
05/03/2013 334 SUPPLEMENT to MOTION for Summary Judgment 281 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Declaration)(Arulanantham, Ahilan) (Entered: 05/03/2013)
05/06/2013 335 NOTICE of Manual Filing filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas of Ex Parte Application, Proposed Order, Dec of Michael Kaufman, Exhibits A-F. (Kaufman, Michael) (Entered: 05/06/2013)
05/06/2013 336 NOTICE OF MOTION AND MOTION for Order for Clarification of the Class Definition filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Memorandum, # 2 Proposed Order)(Kaufman, Michael) (Entered: 05/06/2013)
05/06/2013 337 EX PARTE APPLICATION to File Declaration of Michael Kaufman of 5/6/2013, Exhibits A-F, Under Seal filed by Petitioners Alejandro Rodriguez, Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Abel Perez Ruelas. Lodged Proposed Order.(gk) (Entered: 05/07/2013)
05/08/2013 338 ORDER GRANTING EX PARTE APPLICATION TO FILE DECLARATION OF MICHAEL KAUFMAN OF MAY 6, 2013, EXHIBITS A-F, UNDER SEAL by Judge Terry J. Hatter, Jr: granting 337 Ex Parte Application to Seal (bp) (Entered: 05/09/2013)
05/08/2013 339 SEALED DOCUMENT- DECLARATION of Michael Kaufman of May 6, 2013. Exhibits A-F. (Attachments: Part 2, Part 3)(mat) (Entered: 05/13/2013)
05/13/2013 340 MEMORANDUM in Opposition to MOTION for Order for Clarification of the Class Definition 336 filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Wilson, Sarah) (Entered: 05/13/2013)
05/20/2013 341 REPLY in Support of MOTION for Order for Clarification of the Class Definition 336 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. (Arulanantham, Ahilan) (Entered: 05/20/2013)
05/23/2013 342 NOTICE of Appearance filed by attorney Michael Bryan Kaufman on behalf of Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas (Kaufman, Michael) (Entered: 05/23/2013)
05/28/2013 343 Mail Returned addressed to Frederick Ngaywa re Order Granting Ex Parte Application to File Declaration of Michael Kaufman Under Seal 338 . (gk) (Entered: 05/30/2013)

05/30/2013 344 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals, 259 filed by Mike Kreuger, Janet Napolitano, Davis Nighswonger, Arthur Edwards, Thomas G Snow, Sandra Hutchens, Eric Holder, Russell Davis, Rodney Penner, Timothy Robbins, Wesley Lee, Nguyen, CCA # 12-56734. Appellants' unopposed motion for an enlargement of time in which to file a petition for rehearing en banc is GRANTED. Any petition for rehearing or rehearing en banc is now due July 15, 2013. Order received in this district on 5/30/13. (mat) (Entered: 06/04/2013)
06/25/2013 345 NOTICE OF MOTION AND MOTION to Compel Discovery filed by Petitioner Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. Motion set for hearing on 7/16/2013 at 09:30 AM before Magistrate Judge Robert N. Block. (Attachments: # 1 Declaration Michael Kaufman, # 2 Declaration Theodore Atkinson)(Commons, Sean) (Entered: 06/25/2013)
06/28/2013 346 MINUTES (IN CHAMBERS): ORDER by Magistrate Judge Robert N. Block: denying 345 Motion to Compel Discovery. Accordingly, the hearing on the Motion noticed for July 16, 2013 is ordered off calendar pursuant to Local Rule 715 and the Court now rules as follows. (twdb) (Entered: 06/28/2013)
07/08/2013 347 Mail Returned addressed to Frederick Ngaywa re USCA Order 344 (im) (Entered: 07/08/2013)
07/09/2013 348 Notice of Appearance or Withdrawal of Counsel: for attorney Sean A Commons counsel for Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. Filed by Petitioners Alejandro Rodriguez, et al.. (Commons, Sean) (Entered: 07/09/2013)
07/09/2013 349 Notice of Appearance or Withdrawal of Counsel: for attorney Sean A Commons counsel for Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. Filed by Petitioners Alejandro Rodriguez, et al.. (Commons, Sean) (Entered: 07/09/2013)
07/23/2013 350 MANDATE of 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals, 259 , CCA # 12-56734. The Judgment of the district court is Affirmed. Mandate received in this district on 7/23/13. (car) (Entered: 07/24/2013)
07/23/2013 351 Mail Returned addressed to Frederick Ngaywa re Minute Order on Petitioners' Motion to Compel Discovery 346 . (gk) (Entered: 07/24/2013)
08/05/2013 352 Joint STIPULATION to Reschedule Final Pre-Trial Conference filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Proposed Order) (Atkinson, Theodore) (Entered: 08/05/2013)
08/06/2013 353 ORDER, JUDGMENT AND PERMANENT INJUNCTION by Judge Terry J. Hatter, Jr.: The Court has considered Petitioners' motion to clarify the class definition 336 . The Court certified the class in this case after the Ninth Circuit held that the class must be certified. Rodriguez v. Hayes (Rodriguez I), 591 F.3d

1105 (9th Cir. 2010). It is further Ordered that Petitioners' motion for summary judgment 281 be, and hereby is, Granted. It is further Ordered that Respondents' motion for summary judgment 299 be, and hereby is, Denied. It is further Ordered, Adjudged and Decreed that Judgment be, and hereby is, Entered in favor of Petitioners and against Respondents. It is further Ordered that Respondents and their agents, employees, assigns, and all those acting in concert with them be, and hereby are, Permanently Enjoined, etc. See document for details re class definition and bond hearings. (gk) (Entered: 08/07/2013)
08/07/2013 354 ORDER RESETTING FINAL PRE-TRIAL CONFERENCE by Judge Terry J. Hatter, Jr.: Upon the parties' Joint Stipulation that the Court continue the date of the final pre-trial conference from 8/12/2013 to 9/23/2013 352 , IT IS HEREBY ORDERED that the Final Pretrial Conference is reset to 10/21/2013 10:00 AM before Judge Terry J. Hatter, Jr. (gk) (Entered: 08/08/2013)
08/07/2013 355 Mail Returned addressed to Frederick Ngaywa re USCA Mandate 350 . (gk) (Entered: 08/08/2013)
08/15/2013 356 Mail Returned addressed to Frederick Ngaywa re Order on Motion for Summary Judgment,, Order on Motion for Order 353 (pso) (Entered: 08/15/2013)
08/16/2013 357 Joint STIPULATION for Order FOR FILING DEADLINE FOR PETITIONERS MOTION FOR ATTORNEYS' FEES AND COSTS TO BE GOVERNED BY THE EQUAL ACCESS TO JUSTICE ACT filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Proposed Order) (Arulanantham, Ahilan) (Entered: 08/16/2013)
08/20/2013 358 ORDER GRANTING JOINT STIPULATION FOR FILING DEADLINE FOR PETITIONERS' MOTION FOR ATTORNEYS' FEES AND COSTS TO BE GOVERNED BY THE EQUAL ACCESS TO JUSTICE ACT by Judge Terry J. Hatter, Jr.: The parties' Joint Stipulation 357 is hereby GRANTED, and the deadline for filing any motion for attorneys' fees and costs, including for recovery of any and all taxable costs, expert fees, and other recoverable expenses, in this case is governed by the provisions of the Equal Access to Justice Act ("EAJA"), and thus shall be due within 30 days of final judgment in the action. (gk) (Entered: 08/20/2013)
09/12/2013 359 Mail Returned addressed to Frederick Ngaywa re Order,, 358 (bp) (Entered: 09/16/2013)
09/30/2013 360 NOTICE OF APPEAL to the 9th CCA filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. Appeal of Order on Motion for Summary Judgment,, Order on Motion for Order,,,,,,,,, 353 (Appeal fee FEE WAIVED.) (Atkinson, Theodore) (Entered: 09/30/2013)
10/01/2013 361 EX PARTE APPLICATION to Stay Case pending (Stay of Reporting Requirement Due to Lapse in Appropriations) filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Proposed Order)(Atkinson,

Theodore) (Entered: 10/01/2013)
10/01/2013 362 NOTIFICATION by Circuit Court of Appellate Docket Number 13-56706 9th CCA regarding Notice of Appeal to 9th Circuit Court of Appeals 360 as to Respondent Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (dmap) (Entered: 10/02/2013)
10/02/2013 363 MEMORANDUM of Points and Authorities in Opposition filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. Re: EX PARTE APPLICATION to Stay Case pending (Stay of Reporting Requirement Due to Lapse in Appropriations) 361 (Attachments: # 1 Exhibit A, # 2 Proposed Order) (Arulanantham, Ahilan) (Entered: 10/02/2013)
10/03/2013 364 ORDER GRANTING TEMPORARY STAY OF REPORTING REQUIREMENT UNDER THIS COURT'S FINAL JUDGMENT DUE TO LAPSE OF APPROPRIATIONS by Judge Terry J. Hatter, Jr.: ORDERED that Respondent's Ex Parte Application for a temporary stay of the reporting requirement of this Court's 8/6/2013 Order and Judgment 361 is granted. Respondents shall file a notice with this Court when the lapse in appropriations has ended, and shall file the required report within 10 days from 10/17/2013. (gk) (Entered: 10/04/2013)
10/07/2013 365 NOTICE OF APPEAL to the 9th CCA filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. Appeal of Order on Motion for Summary Judgment,, Order on Motion for Order,,,,,,,,, 353 (Appeal fee of $455 receipt number 0973-12805270 paid.) (Attachments: # 1 Exhibits A-B) (Arulanantham, Ahilan) (Entered: 10/07/2013)
10/09/2013 366 NOTIFICATION by Circuit Court of Appellate Docket Number 13-56755, 9th CCA regarding Notice of Appeal to 9th Circuit Court of Appeals, 365 as to Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. (car) (Entered: 10/10/2013)
10/11/2013 367 NOTICE OF MOTION AND MOTION for Order for Compliance with August 6, 2013 Order, Dkt. 353 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Memorandum of Points and Authorities in Support of Petitioners' Motion for Compliance, # 2 Proposed Order, # 3 Declaration of Michael Kaufman, # 4 Exhibits A-J)(Kaufman, Michael) (Entered: 10/11/2013)
10/14/2013 368 NOTICE OF ERRATA filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. correcting MOTION for Order for Compliance with August 6, 2013 Order, Dkt. 353 367 (Attachments: # 1 Corrected Proposed Order)(Kaufman, Michael) (Entered: 10/14/2013)
10/17/2013 369 NOTICE of Amended Hearing Date filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Petitioners' Amended

Notice of Motion and Motion for Compliance)(Kaufman, Michael) (Entered: 10/17/2013)
10/18/2013 370 MINUTES OF IN CHAMBERS - ORDER AND NOTICE TO ALL PARTIES by Judge Terry J. Hatter, Jr.: On the Court's own motion, the Final Pretrial Conference, currently scheduled for 10/21/2013, is hereby ordered taken OFF CALENDAR and vacated to be reset at a later date if necessary. No appearances are necessary on 10/21/2013. Court Reporter: Not Reported. (gk) (Entered: 10/18/2013)
10/21/2013 371 NOTICE Notice of End of Lapse of Appropriations filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Atkinson, Theodore) (Entered: 10/21/2013)
10/24/2013 372 MINUTES: IN CHAMBERS-ORDER AND NOTICE TO ALL PARTIES: The Court is in receipt of Respondents Notice of end of lapse of appropriations, filed on October 21, 2013 371 . The Court having read and considered said notice, hereby orders that the stay is now lifted. The case may proceed. Counsel are reminded to file the status report on or before October 28, 2013 IT IS SO ORDERED by Judge Terry J. Hatter, Jr. (ir) (Entered: 10/24/2013)
10/28/2013 373 EX PARTE APPLICATION FOR ENLARGEMENT OF TIME to File (1) Status Report and (2) Opposition to Motion for Compliance filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Declaration of Theodore Atkinson)(Atkinson, Theodore) (Entered: 10/28/2013)
10/29/2013 374 OPPOSITION to EX PARTE APPLICATION FOR ENLARGEMENT OF TIME to File (1) Status Report and (2) Opposition to Motion for Compliance 373 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. (Kaufman, Michael) (Entered: 10/29/2013)
11/01/2013 375 ORDER GRANTING RESPONDENTS' EX PARTE APPLICATION FOR A SEVEN DAY EXTENSION OF TIME TO FILE (1) RESPONDENTS' OPPOSITION TO PETITIONERS' MOTION FOR COMPLIANCE, AND (2) RESPONDENTS' FIRST STATUS REPORT ON IMPLEMENTION OF THE 8/6/2013 FINAL ORDER AND PERMANENT INJUNCTION by Judge Terry J. Hatter, Jr.: Respondents' Ex Parte Application 373 is GRANTED. Respondents' Opposition to Petitioners' Motion for Compliance 367 and Respondents' First Status Report on Implementation of the 8/6/2013 Final Order and Permanent Injunction must be filed on or before 11/4/2013. (gk) (Entered: 11/01/2013)
11/04/2013 376 NOTICE of Under Seal Filing filed All Defendants (Atkinson, Theodore) (Entered: 11/04/2013)
11/04/2013 377 STATUS REPORT (Report No. 1) filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Atkinson, Theodore) (Entered: 11/04/2013)

11/04/2013 378 OPPOSITION to MOTION for Order for Compliance with August 6, 2013 Order, Dkt. 353 367 filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Declaration Declaration of Sarah Wilson and Exhibits to Declaration, # 2 Declaration Declaration of Jeff Rosenblum)(Wilson, Sarah) (Entered: 11/04/2013)
11/05/2013 379 SEALED DOCUMENT - NOTICE of Filing Under Seal. (gk) (Entered: 11/12/2013)
11/12/2013 380 REPLY in Support of MOTION for Order for Compliance with August 6, 2013 Order, Dkt. 353 367 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. (Kaufman, Michael) (Entered: 11/12/2013)
11/20/2013 381 EX PARTE APPLICATION for Leave to File Supplemental Brief in Support of Petitioners' Motion for Compliance filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Declaration Declaration of Michael Kaufman in Support of Motion for Compliance, # 2 Exhibits A-C to Kaufman Declaration, # 3 Supplemental Brief in Support of Petitioners' Motion for Compliance)(Kaufman, Michael) (Entered: 11/20/2013)
11/20/2013 382 NOTICE OF LODGING filed Proposed Order re EX PARTE APPLICATION for Leave to File Supplemental Brief in Support of Petitioners' Motion for Compliance 381 (Attachments: # 1 Proposed Order)(Kaufman, Michael) (Entered: 11/20/2013)
11/22/2013 383 OPPOSITION to EX PARTE APPLICATION for Leave to File Supplemental Brief in Support of Petitioners' Motion for Compliance 381 filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Atkinson, Theodore) (Entered: 11/22/2013)
11/25/2013 384 NOTICE of Appearance filed by attorney Wen W Shen on behalf of Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas (Attorney Wen W Shen added to party Yussuf Abdikadir(pty:pet), Attorney Wen W Shen added to party Angel Armando Ayala(pty:pet), Attorney Wen W Shen added to party Jose Farias Cornejo(pty:pet), Attorney Wen W Shen added to party Abdirizak Aden Farah(pty:pet), Attorney Wen W Shen added to party Efren Orozco(pty:pet), Attorney Wen W Shen added to party Alejandro Rodriguez(pty:pet), Attorney Wen W Shen added to party Abel Perez Ruelas(pty:pet))(Shen, Wen) (Entered: 11/25/2013)
11/25/2013 385 ORDER GRANTING EX PARTE APPLICATION TO FILE SUPPLEMENTAL BRIEF IN SUPPORT OF PETITIONERS' MOTION FOR COMPLIANCE by Judge Terry J. Hatter, Jr.: Petitioners' Ex Parte Application to File Supplemental Brief in Support of Petitioners' Motion for Compliance 381 is GRANTED. Petitioners' Supplemental Brief in Support of Petitioners' Motion for Compliance that was submitted with Petitioners' Ex Parte Application is hereby deemed filed. (gk) (Entered: 11/25/2013)

11/25/2013 388 SUPPLEMENTAL BRIEF in Support of Petitioners' Motion for Compliance 367 filed by Petitioners Alejandro Rodriguez, Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Abel Perez Ruelas. (gk) (Entered: 11/26/2013)
11/26/2013 386 Joint STIPULATION for Hearing re MOTION for Order for Compliance with August 6, 2013 Order, Dkt. 353 367 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Proposed Order) (Kaufman, Michael) (Entered: 11/26/2013)
11/26/2013 387 NOTICE OF ERRATA filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. correcting Stipulation for Hearing, 386 (Attachments: # 1 Joint Stipulation for December 9, 2013 Hearing on Petitioners' Motion for Compliance, # 2 Proposed Order)(Kaufman, Michael) (Entered: 11/26/2013)
11/27/2013 389 EX PARTE APPLICATION for Leave to File Responsive Supplemental Brief filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Memorandum Responsive Supplemental Brief, # 2 Proposed Order)(Atkinson, Theodore) (Entered: 11/27/2013)
12/03/2013 390 ORDER GRANTING RESPONDENTS' EX PARTE APPLICATION FOR LEAVE TO FILE RESPONSIVE SUPPLEMENTAL BRIEF by Judge Terry J. Hatter, Jr.: Respondents' Ex Parte Application for Leave to File a Responsive Supplemental Brief 389 is GRANTED. Respondents' Responsive Supplemental Brief in Opposition to Petitioners' Motion for Compliance that was submitted with Respondents' Ex Parte Application is hereby deemed filed. (gk) (Entered: 12/03/2013)
12/03/2013 391 SUPPLEMENTAL BRIEF in Opposition to Petitioners' Motion for Compliance 367 filed by Respondents Timothy Robbins, Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Thomas G Snow. (gk) (Entered: 12/04/2013)
12/04/2013 392 ORDER GRANTING JOINT STIPULATION FOR 12/9/2013 HEARING ON PETITIONERS' MOTION FOR COMPLIANCE by Judge Terry J. Hatter, Jr.: Upon Stipulation 386 , the hearing on Petitioners' Motion for Compliance 367 will be held on 12/9/2013 at 10:00 AM before Judge Terry J. Hatter, Jr. (gk) (Entered: 12/06/2013)
12/09/2013 393 MINUTES OF PETITIONER'S MOTION FOR COMPLIANCE 367 held before Judge Terry J. Hatter, Jr. Following discussions with the parties, the Court will allow the parties to further meet and confer re the various issues in this motion. The motion is submitted pending the parties proposed order to the Court for consideration. Court Reporter: Wil Wilcox. (lom) (Entered: 12/10/2013)
12/11/2013 394 TRANSCRIPT ORDER as to Plaintiff Alejandro Rodriguez Court Reporter. Court will contact Wen Shen at wen.shen@sidley.com with any questions regarding this order. Transcript portion requested: Other: 12/09/13 Petitioner's Motion for

Compliance. Transcript preparation will not begin until payment has been satisfied with the court reporter/recorder. (Shen, Wen) (Entered: 12/11/2013)
12/11/2013 395 Mail Returned addressed to Frederick Ngaywa re Minutes of In Chambers Order 372 . (gk) (Entered: 12/11/2013)
12/23/2013 396 EX PARTE APPLICATION for Leave to File Supplemental Brief Regarding Proposed Order on Motion for Compliance filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Memorandum Supplemental Brief Concerning Proposed Order, # 2 Proposed Order)(Atkinson, Theodore) (Entered: 12/23/2013)
12/26/2013 397 Opposition re: EX PARTE APPLICATION for Leave to File Supplemental Brief Regarding Proposed Order on Motion for Compliance 396 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Exhibit A)(Arulanantham, Ahilan) (Entered: 12/26/2013)
12/27/2013 398 TRANSCRIPT for proceedings held on Monday, December 9, 2013; 10:52 A.M.. Court Reporter: Wil S. Wilcox, phone number 213-290-2849. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 1/17/2014. Redacted Transcript Deadline set for 1/27/2014. Release of Transcript Restriction set for 3/27/2014. (Wilcox, Wil) (Entered: 12/27/2013)
12/27/2013 399 NOTICE OF FILING TRANSCRIPT filed for proceedings Monday, December 9, 2013; 10:52 A.M. re Transcript 398 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (Wilcox, Wil) TEXT ONLY ENTRY (Entered: 12/27/2013)
01/06/2014 400 ORDER GRANTING RESPONDENTS' EX PARTE APPLICATION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF 396 by Judge Terry J. Hatter, Jr: For good cause shown, Respond's Ex Parte Application for Leave to File a Supplemental Brief is GRANTED. Respondents' Supplemental Brief that was submitted with Respondent's Ex Parte Application is hereby deemed filed. (bp) (Entered: 01/06/2014)
01/17/2014 401 RESPONSE filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelasto EX PARTE APPLICATION for Leave to File Supplemental Brief Regarding Proposed Order on Motion for Compliance 396 , Objection/Opposition (Motion related), 397 (Attachments: # 1 Exhibit A)(Kaufman, Michael) (Entered: 01/17/2014)
01/24/2014 402 Mail Returned addressed to Frederick Ngaywa re Order on Ex Parte Application for Leave 400 . (lom) (Entered: 01/24/2014)
01/24/2014 403 Mail Returned addressed to Frederick Ngaywa re Order on Motion for Order, 393 . (lom) (Entered: 01/24/2014)

01/28/2014 404 NOTICE OF LODGING filed Proposed Order re MOTION for Order for Compliance with August 6, 2013 Order, Dkt. 353 367 (Attachments: # 1 Proposed Order Proposed on Petitioners' Motion for Compliance)(Atkinson, Theodore) (Entered: 01/28/2014)
01/28/2014 405 STATUS REPORT filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Rodney Penner, Timothy Robbins, Thomas G Snow. (Atkinson, Theodore) (Entered: 01/28/2014)
01/29/2014 406 NOTICE of Under Seal Filing filed All Defendants (Atkinson, Theodore) (Entered: 01/29/2014)
01/29/2014 407 NOTICE of Under Seal Filing filed All Defendants (Atkinson, Theodore) (Entered: 01/29/2014)
01/31/2014 408 SEALED DOCUMENT - SECOND STATUS REPORT. (Attachments: # 1 Part 2) (gk) (Entered: 02/05/2014)
02/07/2014 409 NOTICE of Under Seal Filing filed All Defendants (Atkinson, Theodore) (Entered: 02/07/2014)
02/07/2014 410 NOTICE of Manual Filing filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow of Document. (Atkinson, Theodore) (Entered: 02/07/2014)
02/07/2014 411 SEALED DOCUMENT - A Supplement to Spreadsheet Accompanying the Second Status Report Previously Filed on 1/29/2014. (gk) (Entered: 02/11/2014)
04/04/2014 412 STATUS REPORT -- SUPPLEMENTAL STATUS REPORT -- filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Atkinson, Theodore) (Entered: 04/04/2014)
04/09/2014 413 RESPONSE filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelasto Status Report, 412 (Attachments: # 1 Declaration of Michael Kaufman, # 2 Exhibits A-E)(Kaufman, Michael) (Entered: 04/09/2014)
04/16/2014 414 EX PARTE APPLICATION for Leave to File Reply Brief filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Exhibit Declaration of Sarah S. Wilson, # 2 Exhibit Reply Brief and Supporting Exhibit, # 3 Proposed Order)(Wilson, Sarah) (Entered: 04/16/2014)
04/18/2014 415 NOTICE OF NON-OPPOSITION to EX PARTE APPLICATION for Leave to File Reply Brief 414 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. (Kaufman, Michael) (Entered: 04/18/2014)
04/25/2014 416 ORDER by Judge Terry J. Hatter, Jr: granting 414 Ex Parte Application for Leave to File Reply Brief. (rne) (Entered: 04/25/2014)

04/28/2014 417 STATUS REPORT filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Atkinson, Theodore) (Entered: 04/28/2014)
04/28/2014 418 NOTICE of Manual Filing filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow of status report spreadsheets. (Wilson, Sarah) (Entered: 04/28/2014)
04/29/2014 419 SEALED DOCUMENT - APRIL 28, 2014 STATUS REPORT SPREADSHEETS. (gk) (Entered: 04/30/2014)
05/15/2014 420 STATUS REPORT -- Supplemental Third Status Report -- filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Proposed Order)(Atkinson, Theodore) (Entered: 05/15/2014)
07/21/2014 421 NOTICE OF REASSIGNMENT OF CASE filed. Pursuant to order filed on 4/7/08 Case transferred to Magistrate Judge Robert N. Block for Discovery Referral. Case number will now read 2:07-cv-03239 TJH(RNBx). (esa) (Entered: 07/21/2014)
07/28/2014 422 STATUS REPORT (Fourth) filed by Respondents Lee Baca, Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Sammy Jones, Mike Kreuger, Wesley Lee, George Molinar, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow, Paul Walters. (Reuveni, Erez) (Entered: 07/28/2014)
07/28/2014 423 NOTICE of Manual Filing filed by Respondents Lee Baca, Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Sammy Jones, Mike Kreuger, Wesley Lee, George Molinar, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow, Paul Walters (Reuveni, Erez) (Entered: 07/28/2014)
07/28/2014 424 SEALED DOCUMENT- JULY 28, 2014 STATUS REPORT SPREADSHEET. (mat) (Entered: 08/04/2014)
08/06/2014 425 ORDER by Judge Terry J. Hatter, Jr.: Upon the Petitioner's Motion for Compliance 367 , the Court hereby orders as follows: Respondents shall provide Petitioners with a draft Notice of Rodriguez Hearings on or before 8/18/2014. The parties shall either negotiate a mutually-acceptable revised Notice by 9/15/2014, or submit to the Court by that date competing Notice proposals from the parties for consideration by the Court. See document for further details. This order resolves all outstanding issues currently before the Court. If either party believes other issues remain outstanding, then that party shall file a new motion. (gk) (Entered: 08/07/2014)
08/06/2014 426 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 360 filed by Mike Kreuger, Janet Napolitano, Davis Nighswonger, Arthur Edwards, Thomas G Snow, Sandra Hutchens, Eric Holder, Russell Davis, Rodney Penner, Timothy Robbins, Wesley Lee, Nguyen, Notice of Appeal to 9th Circuit

Court of Appeals, 365 filed by Efren Orozco, Alejandro Rodriguez, Jose Farias Cornejo, Abel Perez Ruelas, Abdirizak Aden Farah, Angel Armando Ayala, Yussuf Abdikadir, CCA # 13-56706, 13-56755. The respondents' unopposed motion for leave to file an oversize first brief on cross-appeal is granted. The Clerk shall file the previously submitted brief. The current briefings schedule continues to govern as to the remaining briefs. Order received in this district on 8/6/2014. (dmap) (Entered: 08/08/2014)
08/13/2014 427 Mail Returned Undeliverable addressed to Frederick Ngaywa re Notice of Reassignment of Case 421 . (jp) (Entered: 08/13/2014)
08/14/2014 428 APPEAL RECORD RETURNED from 9th CCA Received: Volume(s): 2; Appeal Record Sent to USCA (A-26) 279 (Edwards, Troy) (Entered: 08/14/2014)
08/26/2014 431 Mail Returned addressed to Frederick Ngaywa re Order 425 . (gk) (Entered: 09/17/2014)
09/15/2014 429 STATUS REPORT filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Timothy Robbins, Thomas G Snow, Petitioner Abel Perez Ruelas. (Reuveni, Erez) (Entered: 09/15/2014)
09/15/2014 430 NOTICE of Manual Filing filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow (Reuveni, Erez) (Entered: 09/15/2014)
09/15/2014 432 SEALED DOCUMENT- NOTICE OF LODGING UNDERSEAL SPREADSHEET RE: STATUS REPORT. (mat) (Entered: 09/23/2014)
10/15/2014 433 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals, 360 filed by Mike Kreuger, Janet Napolitano, Davis Nighswonger, Arthur Edwards, Thomas G Snow, Sandra Hutchens, Eric Holder, Russell Davis, Rodney Penner, Timothy Robbins, Wesley Lee, Nguyen, Notice of Appeal to 9th Circuit Court of Appeals, 365 filed by Efren Orozco, Alejandro Rodriguez, Jose Farias Cornejo, Abel Perez Ruelas, Abdirizak Aden Farah, Angel Armando Ayala, Yussuf Abdikadir, CCA # 13-56706 and 13-56755. The petitioners motion for leave to file an oversize answering brief is granted. The Clerk shall file the previously submitted answering brief. The optional reply brief is due within 14 days after the date of this order. Order received in this district on 10/15/14. (mat) (Entered: 10/17/2014)
10/24/2014 434 STIPULATION for Order concerning implementation of paragraph 3 of the Court's August 6, 2014 order filed by Respondents Lee Baca, Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Sammy Jones, Mike Kreuger, Wesley Lee, George Molinar, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow, Paul Walters.(Reuveni, Erez) (Entered: 10/24/2014)
10/27/2014 435 STATUS REPORT (fifth) filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Reuveni, Erez) (Entered: 10/27/2014)

10/27/2014 436 NOTICE of manual filing filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Reuveni, Erez) (Entered: 10/27/2014)
10/28/2014 438 SEALED DOCUMENT - QUARTERLY SPREADSHEET. (Attachments: # 1 Part 2)(gk) (Entered: 10/31/2014)
10/30/2014 437 MINUTES OF IN CHAMBERS - ORDER AND NOTICE TO ALL PARTIES by Judge Terry J. Hatter, Jr.: The Court hereby GRANTS the Joint Stipulation concerning the Court's 8/6/2014 order 434 . The Excel spreadsheet will be filed under seal. Court Reporter: Not Reported. (gk) (Entered: 10/30/2014)
01/26/2015 439 NOTICE of Manual Filing filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow (Wilson, Sarah) (Entered: 01/26/2015)
01/26/2015 440 Corrected NOTICE of Manual Filing filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow (Wilson, Sarah) (Entered: 01/26/2015)
01/26/2015 441 STATUS REPORT (Sixth) filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Wilson, Sarah) (Entered: 01/26/2015)
01/27/2015 442 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Notice of Manual Filing (G-92) 439 . The following error(s) was found: Lacking proof of service, F.R.Civ.P. 5. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (jp) (Entered: 01/28/2015)
01/27/2015 443 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Corrected Notice of Manual Filing (G-92) 440 . The following error(s) was found: Lacking proof of service, F.R.Civ.P. 5. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (jp) (Entered: 01/28/2015)
01/27/2015 444 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Respondents' Sixth Status Report on Implementation of the 8/6/2013 Final Orderand Permanent Injunction 441 . The following error(s) was found: Lacking proof of service, F.R.Civ.P. 5.. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (jp) (Entered: 01/28/2015)

01/27/2015 446 SEALED DOCUMENT - January 26, 2015 Status Report Spreadsheets. (Attachments: # 1 Part 2)(gk) (Entered: 02/09/2015)
01/28/2015 445 CERTIFICATE OF SERVICE filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow, re Notice of Manual Filing (G-92) 440 , Notice of Manual Filing (G-92) 439 , Status Report 441 served on 1/26/2015. (Wilson, Sarah) (Entered: 01/28/2015)
02/18/2015 447 Mail Returned addressed to Frederick Ngaywa re Notice of Deficiency in Electronically Filed Documents 442 . (jloz) (Entered: 02/18/2015)
02/18/2015 448 Mail Returned addressed to Frederick Ngaywa re Notice of Deficiency in Electronically Filed Documents 443 . (jloz) (Entered: 02/18/2015)
02/18/2015 449 Mail Returned addressed to Frederick Ngaywa re Notice of Deficiency in Electronically Filed Documents 444 . (jloz) (Entered: 02/18/2015)
04/24/2015 450 NOTICE of Manual Filing filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow of Exhibit to Respondents' Seventh Status Report. (Wilson, Sarah) (Entered: 04/24/2015)
04/24/2015 451 STATUS REPORT (Seventh) filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Wilson, Sarah) (Entered: 04/24/2015)
04/24/2015 452 CERTIFICATE OF SERVICE filed by Respondent Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow, re Notice of Manual Filing (G-92), 450 served on 4/24/2015. (Wilson, Sarah) (Entered: 04/24/2015)
04/27/2015 453 SEALED DOCUMENT - APRIL 27, 2015 STATUS REPORT SPREADSHEETS. (Attachments: # 1 Part 2)(gk) (Entered: 04/28/2015)
07/27/2015 454 STATUS REPORT (Eighth) filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Wilson, Sarah) (Entered: 07/27/2015)
07/27/2015 455 NOTICE of Manual Filing filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow of compliance report spreadsheet. (Wilson, Sarah) (Entered: 07/27/2015)
07/27/2015 457 SEALED DOCUMENT - JULY 27, 2015 STATUS REPORT SPREADSHEETS. (Attachments: # 1 Part 2)(gk) (Entered: 08/03/2015)
07/29/2015 456 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Respondents' Eight Status Report on Implementation of the 8/6/2013 Final Order and Permanent Injunction 454 . The following error(s) was found: Lacking proof

of service, F.R.Civ.P. 5. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (jp) (Entered: 07/30/2015)
10/02/2015 458 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 365 filed by Jose Farias Cornejo, Abel Perez Ruelas, Abdirizak Aden Farah, Efren Orozco, Angel Armando Ayala, Alejandro Rodriguez, Yussuf Abdikadir, Notice of Appeal to 9th Circuit Court of Appeals, 360 filed by Mike Kreuger, Janet Napolitano, Davis Nighswonger, Arthur Edwards, Thomas G Snow, Sandra Hutchens, Eric Holder, Russell Davis, Rodney Penner, Timothy Robbins, Wesley Lee, Nguyen. CCA # 13-56706 AND 1356755. The Order to Show Cause is discharged; no sanctions areimposed.IT IS SO ORDERED.(mat) (Entered: 10/02/2015)
10/28/2015 459 OPINION from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 365 filed by Jose Farias Cornejo, Abel Perez Ruelas, Abdirizak Aden Farah, Efren Orozco, Angel Armando Ayala, Alejandro Rodriguez, Yussuf Abdikadir, Notice of Appeal to 9th Circuit Court of Appeals, 360 filed by Mike Kreuger, Janet Napolitano, Davis Nighswonger, Arthur Edwards, Thomas G Snow, Sandra Hutchens, Eric Holder, Russell Davis, Rodney Penner, Timothy Robbins, Wesley Lee, Nguyen. CCA # 13-56706 and 13-56755. We (9th CCA) reverse as to the § 1231(a) subclass, and we hold that IJs must consider the length of detention and provide bond hearings every six months. We hereby remand to the district court to enter a revised injunction consistent with our instructions. (mat) (Entered: 10/28/2015)
10/28/2015 460 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 365 filed by Jose Farias Cornejo, Abel Perez Ruelas, Abdirizak Aden Farah, Efren Orozco, Angel Armando Ayala, Alejandro Rodriguez, Yussuf Abdikadir, Notice of Appeal to 9th Circuit Court of Appeals, 360 filed by Mike Kreuger, Janet Napolitano, Davis Nighswonger, Arthur Edwards, Thomas G Snow, Sandra Hutchens, Eric Holder, Russell Davis, Rodney Penner, Timothy Robbins, Wesley Lee, Nguyen. CCA # 13-56706 and 13-56755. The costs on appeal shall be taxed against the Respondents-Appellees.IT IS SO ORDERED.(mat) (Entered: 10/28/2015)
12/16/2015 461 ORDER from Ninth Circuit Court of Appeals filed. CCA # 13-56706, 13-56755. The Government's unopposed motion for an extension of time to file a petition for rehearing and/or petition for rehearing en banc is GRANTED. The deadline to file is now January 13, 2016 (car) (Entered: 12/16/2015)
01/22/2016 462 MANDATE of Ninth Circuit Court of Appeals filed re: Notice of Appeal 365 , and Notice of Appeal 360 CCA # 13-56706 and 13-56755. The judgment of the 9th Circuit Court, entered October 28, 2015, takes effect this date. This constitutes the formal mandate of the 9th CCA issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. [See USCA Opinion 459 , AFFIRMED IN PART; REVERSED IN PART; REMANDED.] (mat) (Entered: 01/26/2016)
01/28/2016 463 MINUTE IN CHAMBERS ORDER AND NOTICE TO ALL PARTIES by Judge Terry J. Hatter, Jr: The Court is in receipt of the Mandate from the Ninth Circuit

Court of Appeals as to Appeal No. 13-56706, affirmed in part; reversed in part; and remanded to the District Court, filed on January 22, 2016. Counsel are hereby notified that the above matter is set on the Court's calendar for Status Conference on February 29, 2016 at 10:00 a.m. Counsel for the parties are ordered to appear at this date and time. (shb) (Entered: 01/28/2016)
02/18/2016 464 Mail Returned addressed to Gjon Juncaj re Minutes of In Chambers Order/Directive - no proceeding held,,, Set/Reset Deadlines/Hearings,, 463 (shb) (Entered: 02/18/2016)
02/29/2016 465 MINUTES OF STATUS CONFERENCE RE MANDATE FROM 9TH COA, APPEAL NO. 13-56706,AFFIRMED IN PART, REVERSED IN PART AND REMANDED TO DIST.COURT 462 : Status Conference held before Judge Terry J. Hatter, Jr: The case is called and counsel state their appearance. The Court and counsel confer. Counsel Rebecca Maxwell, for the Executive Office of Immigration Review is present with defense counsel. Following discussions with the parties, the Court will allow briefing to be filed by the parties. The Court sets a further Status Conference for March 28, 2016 at 10:00 a.m. Court Reporter: COURT SMART. (shb) (Entered: 03/01/2016)
03/24/2016 466 Joint STIPULATION for Order to Continue Status Conference filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Proposed Order) (Wilson, Sarah) (Entered: 03/24/2016)
03/24/2016 467 ORDER by Judge Terry J. Hatter, Jr, APPROVING STIPULATION TO CONTINUE STATUS CONFERENCE, 466 . Pursuant to the stipulation, and for good cause shown, it is hereby ordered that: (1) The status conference scheduled for March 28, 2016 is removed from the Courts calendar. (2) The parties shall update the Court on the status of their negotiations by April 1, 2016, in a joint stipulation proposing (if necessary) a briefing schedule and a new date for the status conference. (shb) (Entered: 03/24/2016)
04/01/2016 468 Joint STIPULATION for Order setting date for next joint status report filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Proposed Order) (Wilson, Sarah) (Entered: 04/01/2016)
04/05/2016 469 ORDER APPROVING STIPULATION RE STATUS CONFERENCE 468 by Judge Terry J. Hatter, Jr. It is hereby ordered that the parties shall update the Court on the status of their negotiations by April 8, 2016, in a joint stipulation proposing (if necessary) a briefing schedule and a new date for the status conference. (lom) (Entered: 04/06/2016)
04/08/2016 470 Mail Returned undeliverable addressed to Gjon Juncaj re Minute of Status Conference re Mandate from 9th COA 465 . (jp) (Entered: 04/08/2016)
04/08/2016 471 NOTICE re Status Conference filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Wilson, Sarah) (Entered: 04/08/2016)

06/27/2016 472 MINUTE ORDER IN CHAMBERS - ORDER AND NOTICE TO ALL PARTIES by Judge Terry J. Hatter, Jr. Counsel are hereby notified that a joint status report must be filed to this action no later than JULY 20, 2016. IT IS SO ORDERED. (lom) (Entered: 06/28/2016)
07/20/2016 473 STATUS REPORT filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Wilson, Sarah) (Entered: 07/20/2016)
09/26/2016 474 Mail Returned addressed to Frederick Ngaywa re Minutes of In Chambers Order/Directive - no proceeding held, Set/Reset Deadlines 472 (shb) (Entered: 09/26/2016)
05/26/2017 475 MINUTES (IN CHAMBERS) ORDER AND NOTICE TO ALL PARTIES by Judge Terry J. Hatter, Jr:Counsel are hereby notified that a joint status report must be filed to this action no later than JULY 3, 2017. IT IS SO ORDERED. (yl) (Entered: 05/26/2017)
06/29/2017 476 STATUS REPORT (JOINT) filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Raul Ernesto Morales, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. (Kaufman, Michael) (Entered: 06/29/2017)
02/02/2018 477 MINUTE IN CHAMBERS-ORDER AND NOTICE TO ALL PARTIES by Judge Terry J. Hatter, Jr: Counsel are hereby notified that a joint status report must be filed to this action no later than MARCH 5, 2018. (shb) (Entered: 02/02/2018)
02/27/2018 479 SUPREME COURT OPINION filed re: Notice of Appeal to 9th Circuit Court of Appeals, 365 filed by Jose Farias Cornejo, Abel Perez Ruelas, Abdirizak Aden Farah, Efren Orozco, Angel Armando Ayala, Alejandro Rodriguez, Yussuf Abdikadir, Notice of Appeal to 9th Circuit Court of Appeals, 360 filed by Mike Kreuger, Janet Napolitano, Davis Nighswonger, Arthur Edwards, Thomas G Snow, Sandra Hutchens, Eric Holder, Russell Davis, Rodney Penner, Timothy Robbins, Wesley Lee, Nguyen. CCA # 13-56706, 13-56755. [Received from the Supreme Court.] (mat) (Entered: 03/05/2018)
03/05/2018 478 STATUS REPORT filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Wilson, Sarah) (Entered: 03/05/2018)
04/30/2018 480 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 365 filed by Jose Farias Cornejo, Abel Perez Ruelas, Abdirizak Aden Farah, Efren Orozco, Angel Armando Ayala, Alejandro Rodriguez, Yussuf Abdikadir, Notice of Appeal to 9th Circuit Court of Appeals, 360 filed by Mike Kreuger, Janet Napolitano, Davis Nighswonger, Arthur Edwards, Thomas G Snow, Sandra Hutchens, Eric Holder, Russell Davis, Rodney Penner, Timothy Robbins, Wesley Lee, Nguyen. CCA # 13-56706, 13-56755. Petitioners' application for an exemption pursuant to Circuit Rule 46-5 is DENIED.* David Marin is substituted in place of his predecessor. Fed. R. App. P. 43(c)(2).(mat) (Entered: 05/01/2018)

06/14/2018 481 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 365 filed by Jose Farias Cornejo, Abel Perez Ruelas, Abdirizak Aden Farah, Efren Orozco, Angel Armando Ayala, Alejandro Rodriguez, Yussuf Abdikadir, Notice of Appeal to 9th Circuit Court of Appeals, 360 filed by Mike Kreuger, Janet Napolitano, Davis Nighswonger, Arthur Edwards, Thomas G Snow, Sandra Hutchens, Eric Holder, Russell Davis, Rodney Penner, Timothy Robbins, Wesley Lee, Nguyen. CCA # 13-56706 and 13-56755. The State of California's application for exemptions pursuant to Circuit Rule 46-5 ( for associate deputy solicitors general Samuel Siegel and Max Carter-Oberstone is GRANTED. (mat) (Entered: 06/19/2018)
08/31/2018 482 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, [360, 365] filed by Jose Farias Cornejo, Abel Perez Ruelas, Abdirizak Aden Farah, Efren Orozco, Angel Armando Ayala, Alejandro Rodriguez, Yussuf Abdikadir. CCA # 13-56706 and 13-56755. Respondents motion to file a corrected supplemental reply brief ECF No. 220 is GRANTED. (shb) (Entered: 09/05/2018)
09/04/2018 483 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, [360, 365] filed by Jose Farias Cornejo, Abel Perez Ruelas, Abdirizak Aden Farah, Efren Orozco, Angel Armando Ayala, Alejandro Rodriguez, Yussuf Abdikadir. CCA # 13-56706 and 13-56755. Counsels unopposed motion for an extension of time to file Petitioners response to Respondents sur-reply is GRANTED. Appellants brief is to be filed no later than September 17, 2018. (shb) (Entered: 09/05/2018)
10/12/2018 484 ORDER from Ninth Circuit Court of Appeals filed. CCA # 13-56706, 13-56755. (yl) (Entered: 10/16/2018)
10/23/2018 485 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 365 CCA # 13-56706, 13-56755. The parties should be prepared at oral argument on Monday, October 29, 2018, to address what remedy, if any, should be fashioned by the court should it reach the conclusion that any of the relevant statutes are unconstitutional as a violation of Due Process. (shb) (Entered: 10/25/2018)
11/07/2018 486 Notice of Appearance or Withdrawal of Counsel: for attorney Sarah S Wilson counsel for Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger. Gjon Juncaj is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Respondents Timothy Robbins. (Wilson, Sarah) (Entered: 11/07/2018)
11/07/2018 487 Notice of Appearance or Withdrawal of Counsel: for attorney Sarah S Wilson counsel for Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. Theodore Atkinson is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Respondents Timothy Robbins. (Wilson, Sarah) (Entered: 11/07/2018)
11/07/2018 488 Notice of Appearance or Withdrawal of Counsel: for attorney Sarah S Wilson

counsel for Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. Nicole R. Prairie is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Respondents Timothy Robbins et al.. (Wilson, Sarah) (Entered: 11/07/2018)
11/07/2018 489 Notice of Appearance or Withdrawal of Counsel: for attorney Sarah S Wilson counsel for Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. Hans H. Chen is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Respondent Timothy Robbins et al. (Wilson, Sarah) (Entered: 11/07/2018)
11/07/2018 490 Notice of Appearance or Withdrawal of Counsel: for attorney Sean A Commons counsel for Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. William Tran is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiffs Alejandro Rodriguez, et al.. (Commons, Sean) (Entered: 11/07/2018)
11/07/2018 491 Notice of Appearance or Withdrawal of Counsel: for attorney Sean A Commons counsel for Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. Wen W. Shen is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiffs Alejandro Rodriguez, et al.. (Commons, Sean) (Entered: 11/07/2018)
11/07/2018 492 Notice of Appearance or Withdrawal of Counsel: for attorney Sean A Commons counsel for Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. Brian K. Washington is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiffs Alejandro Rodriguez, et al.. (Commons, Sean) (Entered: 11/07/2018)
11/07/2018 493 Mail Returned addressed to Frederick Ngaywa re USCA Memorandum/Opinion/Order 484 (shb) (Entered: 11/08/2018)
11/09/2018 494 Notice of Appearance or Withdrawal of Counsel: for attorney Robert Ira Lester counsel for Respondents Eric Holder, Janet Napolitano, Timothy Robbins. Dorothy Kim is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Federal Respondents Dorothy Kim. (Lester, Robert) (Entered: 11/09/2018)
11/19/2018 495 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 365 filed by Jose Farias Cornejo, Abel Perez Ruelas, Abdirizak Aden Farah, Efren Orozco, Angel Armando Ayala, Alejandro Rodriguez, Yussuf Abdikadir, Notice of Appeal to 9th Circuit Court of Appeals, 360 filed by Mike Kreuger, Janet Napolitano, Davis Nighswonger, Arthur Edwards, Thomas G Snow, Sandra Hutchens, Eric Holder, Russell Davis, Rodney

Penner, Timothy Robbins, Wesley Lee, Nguyen. CCA # 13-56706 and 13-56755. On Remand From The United States Supreme Court. The Court remanded the constitutional issues to our court, and we now, taking our cue from it, likewise remand this case to the district court. In conclusion, we therefore remand with instructions to the district court. REMANDED [see document for complete details.] (mat) (Entered: 11/20/2018)
11/21/2018 496 MINUTE IN CHAMBERS ORDER ANT NOTICE TO ALL PARTIES by Judge Terry J. Hatter, Jr: Counsel are hereby notified that pursuant to the Judge's directive, this matter is placed on the calendar for a Status Conference re remand from the 9th Circuit hearing on January 28, 2019 at 10:00 a.m. (shb) (Entered: 11/26/2018)
12/11/2018 497 MANDATE of Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 365 , Notice of Appeal to 9th Circuit Court of Appeals, 360 CCA # 13-56706 and 13-56755. The judgment of this Court, entered November 19, 2018, takes effect thisdate.This constitutes the formal mandate of this Court issued pursuant to Rule41(a) of the Federal Rules of Appellate Procedure. [See USCA Order 495 REMANDED.] (mat) (Entered: 12/13/2018)
12/14/2018 498 STIPULATION to Continue Status Conference from January 28, 2019 to February 11, 2019 Re: Minutes of In Chambers Order/Directive - no proceeding held,, Set/Reset Hearing, 496 filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Proposed Order)(Wilson, Sarah) (Entered: 12/14/2018)
12/17/2018 499 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Stipulation to Continue, 498 . The following error(s) was/were found: Case number is incorrect or missing. Other error(s) with document(s): The case number is missing the judge initials. The complete case number is 2:07cv03239-TJH (RNBx). In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (shb) (Entered: 12/17/2018)
12/17/2018 500 ORDER by Judge Terry J. Hatter, Jr, re Stipulation to Continue Status Conference, 498 . FOR GOOD CAUSE SHOWN, the status conference scheduled for January 28, 2019, at 10:00 a.m., is continued to February 11, 2019, at 10:00 a.m. (shb) (Entered: 12/17/2018)
02/04/2019 501 STIPULATION to Reschedule Status Conference filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Proposed Order)(Wilson, Sarah) (Entered: 02/04/2019)
02/08/2019 502 ORDER ON STIPULATION FOR ORDER RESCHEDULING STATUS CONFERENCE 501 by Judge Terry J. Hatter, Jr. FOR GOOD CAUSE SHOWN, the status conference scheduled for February 11, 2019, at 10:00 a.m., is continued

to March 4, 2019, at 10:00 a.m. IT IS SO ORDERED. (yl) (Entered: 02/08/2019)
03/04/2019 503 MINUTE IN CHAMBERS NOTICE TO ALL PARTIES OF COURT ORDER by Judge Terry J. Hatter, Jr: On the Courts own motion, the Status Conference currently scheduled for March 4, 2019, is hereby ordered continued to March 18, 2019 at 10:00 a.m. Counsel for the parties are ordered to appear. (shb) (Entered: 03/04/2019)
03/18/2019 505 MINUTES OF STATUS CONFERENCE on J.P. MORGAN CHASE BANK, N.A.'S MOTION TO COMPEL ARBITRATION 11 held before Judge Terry J. Hatter, Jr: The case is called and counsel state their appearance. The Court and counsel confer re the status of the case. Following discussions with the parties, the Court will allow Plaintiff time to file his Amended Complaint. The Amended Complaint is to be filed no later than April 19, 2019 as stated on the record. A written order willfollow as to the briefing schedule. Court Reporter: Lisa Gonzalez. (shb) (Entered: 03/28/2019)
03/18/2019 526 AMENDED MINUTES re STATUS CONFERENCE HELD RE MANDATE FROM 9TH CIRCUIT COURT OF APPEALS APPEAL NO. 13-56706 AFFIRMED.IN PART, REVERSED IN PART AND REMANDED TO DISTRICT COURT, 463 , 495 held before Judge Terry J. Hatter, Jr. The Court and counsel confer re the.status of the case. Following discussions with the parties, the Court will allow Plaintiff time to file his Amended Complaint. The Amended Complaint is to be filed no later than April 19, 2019 as stated on the record. Re: Minutes of Status Conference 505 . (shb) Modified on 11/7/2019 (shb). (Entered: 11/07/2019)
03/26/2019 504 Notice of Appearance or Withdrawal of Counsel: for attorney Robert Ira Lester counsel for Respondents Eric Holder, Janet Napolitano, Timothy Robbins. Robert I. Lester is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Federal Respondents Holder, Napolitano, Robbins. (Lester, Robert) (Entered: 03/26/2019)
04/12/2019 506 Mail Returned addressed to Frederick Ngaywa re Status Conference - 505 (shb) (Entered: 04/15/2019)
04/18/2019 507 Joint STIPULATION for Extension of Time to Amend Amended Complaint, 111 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Raul Ernesto Morales, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Proposed Order)(Attorney Michael Bryan Kaufman added to party Raul Ernesto Morales(pty:pet))(Kaufman, Michael) (Entered: 04/18/2019)
04/19/2019 508 ORDER by Judge Terry J. Hatter, Jr, GRANTING Stipulation for Extension of Time to Amend Complaint, [507. Petitioners Amended Complaint shall be filed no later than May 20, 2019. (shb) (Entered: 04/19/2019)
05/20/2019 509 NOTICE OF MOTION AND MOTION to Amend Amended Complaint, 111 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Raul Ernesto Morales, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Fourth Amended Complaint, # 2 Proposed Order) (Attorney Ahilan T Arulanantham added to party Raul Ernesto Morales(pty:pet)) (Arulanantham, Ahilan) (Entered: 05/20/2019)

05/29/2019 510 Joint STIPULATION for Extension of Time to File as to NOTICE OF MOTION AND MOTION to Amend Amended Complaint, 111 509 , Joint STIPULATION to Continue Submission Date from June 17, 2019 to July 8, 2019 filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Proposed Order) (Wilson, Sarah) (Entered: 05/29/2019)
05/31/2019 511 ORDER ON JOINT STIPULATION FOR EXTENSION OF TIME FOR RESOLUTION OF THE MOTIONFOR LEAVE TO AMEND THE COMPLAINT AND TO CONTINUE HEARING DATE TO JULY 8, 2019[510 by Judge Terry J. Hatter, Jr. The Respondents' time for responding to Petitioners' Motion to Amend the Complaint is extended to June 12, 2019, Petitioners' time to file a reply in support of the motion is extended to June 24, 2019, and the submission date for the motion is continued from June 17, 2019, to July 8, 2019. (shb) (Entered: 05/31/2019)
06/12/2019 512 OPPOSITION to NOTICE OF MOTION AND MOTION to Amend Amended Complaint, 111 509 filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Exhibit A: Bond Order, # 2 Exhibit B: Motion to Change Venue)(Wilson, Sarah) (Entered: 06/12/2019)
06/24/2019 513 REPLY in Support of NOTICE OF MOTION AND MOTION to Amend Amended Complaint, 111 509 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Raul Ernesto Morales, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. (Arulanantham, Ahilan) (Entered: 06/24/2019)
07/10/2019 514 ORDER by Judge Terry J. Hatter, Jr: GRANTING 509 MOTION TO FILE A FOURTH AMENDED COMPLAINT. Petitioners shall file the Fourth Amended Complaint that was attached to their Motion, and the Fourth Amended Complaint shall be deemed the operative Complaint in this case. (shb) (Entered: 07/10/2019)
07/11/2019 515 Fourth AMENDED COMPLAINT against Respondents Lee Baca, Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Sammy Jones, Mike Kreuger, Wesley Lee, George Molinar, Janet Napolitano, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow, Paul Walters amending Amended Complaint, 111 , filed by Petitioners Yussuf Abdikadir, Abel Perez Ruelas, Alejandro Rodriguez, Jose Farias Cornejo, Abdirizak Aden Farah, Angel Armando Ayala, Raul Ernesto Morales(Arulanantham, Ahilan) (Entered: 07/11/2019)
07/24/2019 516 Joint STIPULATION Extending Time to Answer the complaint as to Wesley Lee answer now due 8/8/2019; Mike Kreuger answer now due 8/8/2019; Arthur Edwards answer now due 8/8/2019; Eric Holder answer now due 8/8/2019; Rodney Penner answer now due 8/8/2019; Russell Davis answer now due 8/8/2019; Janet Napolitano answer now due 8/8/2019; Davis Nighswonger answer now due 8/8/2019; Thomas G Snow answer now due 8/8/2019; Nguyen answer now due 8/8/2019; Sandra Hutchens answer now due 8/8/2019; Timothy Robbins answer now due 8/8/2019, re Amended Complaint/Petition, 515 filed by Respondents Wesley Lee; Mike Kreuger; Arthur Edwards; Eric Holder; Rodney

Penner; Russell Davis; Janet Napolitano; Davis Nighswonger; Thomas G Snow; Nguyen; Sandra Hutchens. (Attachments: # 1 Proposed Order)(Wilson, Sarah) (Entered: 07/24/2019)
07/25/2019 517 ORDER ON JOINT STIPULATION FOR EXTENSION OF TIME FOR RESPONDENTS TO FILE A REPONSE TO THE FOURTH AMENDED COMPLAINT 516 by Judge Terry J. Hatter, Jr. IT IS ORDERED that Respondents time for responding to the Petitioners Fourth Amended Complaint is extended from July 25, 2019, to August 8, 2019. (shb) (Entered: 07/25/2019)
08/06/2019 518 Joint STIPULATION Extending Time to Answer the complaint as to Wesley Lee answer now due 8/22/2019; Mike Kreuger answer now due 8/22/2019; Arthur Edwards answer now due 8/22/2019; Eric Holder answer now due 8/22/2019; Rodney Penner answer now due 8/22/2019; Russell Davis answer now due 8/22/2019; Janet Napolitano answer now due 8/22/2019; Davis Nighswonger answer now due 8/22/2019; Thomas G Snow answer now due 8/22/2019; Nguyen answer now due 8/22/2019; Timothy Robbins answer now due 8/22/2019; Sandra Hutchens answer now due 8/22/2019, re Amended Complaint/Petition, 515 filed by Respondents Wesley Lee; Mike Kreuger; Arthur Edwards; Eric Holder; Rodney Penner; Russell Davis; Janet Napolitano; Davis Nighswonger; Thomas G Snow; Nguyen; Timothy Robbins; Sandra Hutchens. (Attachments: # 1 Proposed Order)(Wilson, Sarah) (Entered: 08/06/2019)
08/09/2019 519 Mail Returned addressed to Frederick Ngaywa re Stipulation Extending Time to Answer (30 days or less), 516 (shb) (Entered: 08/09/2019)
08/15/2019 520 ORDER ON JOINT STIPULATION FOR SECOND EXTENSION OF TIME FOR RESPONDENTS TO FILE A RESPONSE TO THE FOURTH AMENDED COMPLAINT 518 , by Judge Terry J. Hatter, Jr. IT IS ORDERED that Respondents time for responding to the Petitioners Fourth Amended Complaint is extended from August 8, 2019, to August 22, 2019. (shb) (Entered: 08/15/2019)
08/22/2019 521 NOTICE OF MOTION AND MOTION to Dismiss Petitioner Alex Cacho Castillo, Counts I, IV filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. Motion set for hearing on 10/7/2019 at 10:00 AM before Judge Terry J. Hatter Jr. (Attachments: # 1 Proposed Order) (Wilson, Sarah) (Entered: 08/22/2019)
08/23/2019 522 NOTICE of Appearance filed by attorney Zoe Nicole McKinney on behalf of Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas (Attorney Zoe Nicole McKinney added to party Yussuf Abdikadir(pty:pet), Attorney Zoe Nicole McKinney added to party Angel Armando Ayala(pty:pet), Attorney Zoe Nicole McKinney added to party Jose Farias Cornejo(pty:pet), Attorney Zoe Nicole McKinney added to party Abdirizak Aden Farah(pty:pet), Attorney Zoe Nicole McKinney added to party Efren Orozco(pty:pet), Attorney Zoe Nicole McKinney added to party Alejandro Rodriguez(pty:pet), Attorney Zoe Nicole McKinney added to party Abel Perez Ruelas(pty:pet))(McKinney, Zoe) (Entered: 08/23/2019)
08/27/2019 523 Mail Returned addressed to Frederick Ngaywa re Order Extending Answer Due

Deadline, 520 (shb) (Entered: 09/05/2019)
09/16/2019 524 Opposition re: NOTICE OF MOTION AND MOTION to Dismiss Petitioner Alex Cacho Castillo, Counts I, IV 521 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Raul Ernesto Morales, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. (Arulanantham, Ahilan) (Entered: 09/16/2019)
09/23/2019 525 REPLY in support NOTICE OF MOTION AND MOTION to Dismiss Petitioner Alex Cacho Castillo, Counts I, IV 521 filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Wilson, Sarah) (Entered: 09/23/2019)
11/07/2019 527 ORDER by Judge Terry J. Hatter, Jr: DENYING 521 RESPONDENTS MOTION TO DISMISS AS TO PETITIONERS EIGHT AMENDMENT CLAIM. (shb) (Entered: 11/08/2019)
11/18/2019 528 NOTICE OF MOTION AND MOTION for Order for Clarification or Reconsideration of Order (Dkt. 527) filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Raul Ernesto Morales, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Memorandum, # 2 Proposed Order) (Arulanantham, Ahilan) (Entered: 11/18/2019)
11/25/2019 529 NOTICE of Change of Attorney Business or Contact Information: for attorney Steven A Ellis counsel for Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. Changing Address to Los Angeles Superior Court, 111 North Hill Street, Los Angeles, CA 90012. Changing Email to steven.ellis213@gmail.com. Filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. (Ellis, Steven) (Entered: 11/25/2019)
11/25/2019 530 Notice of Appearance or Withdrawal of Counsel: for attorney Steven A Ellis counsel for Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Alejandro Rodriguez, Abel Perez Ruelas. Steven A. Ellis is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Petitioner Alejandro Rodriguez, et al.. (Ellis, Steven) (Entered: 11/25/2019)
11/25/2019 531 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION for Order for Clarification or Reconsideration of Order (Dkt. 527) 528 filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Wilson, Sarah) (Entered: 11/25/2019)
11/26/2019 532 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Notice of Appearance or Withdrawal of Counsel (G-123), 530 . The following error(s) was/were found: Incorrect event selected. Correct event to be used is: Request for Substitution of Counsel G01. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the

document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (ak) (Entered: 11/26/2019)
11/27/2019 533 NOTICE OF MOTION AND MOTION to Vacate Order on Motion for Preliminary Injunction,, 255 and certify class filed by Respondent Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. Motion set for hearing on 2/17/2020 at 10:00 AM before Judge Terry J. Hatter Jr. (Attachments: # 1 Memorandum, # 2 Proposed Order) (Wilson, Sarah) (Entered: 11/27/2019)
12/02/2019 534 REPLY in Support of NOTICE OF MOTION AND MOTION for Order for Clarification or Reconsideration of Order (Dkt. 527) 528 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Raul Ernesto Morales, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. (Arulanantham, Ahilan) (Entered: 12/02/2019)
12/11/2019 536 [REFER TO NOTICE OF CLERICAL ERROR, [DKT 537]. ORDER RE VEXATIOUS LITIGANT FILING by Judge Virginia A. Phillips, IT IS HEREBY ORDERED that the documents presented not be filed. (shb) Modified on 12/17/2019 (shb). (Entered: 12/17/2019)
12/16/2019 535 MINUTES IN CHAMBERS-ORDER AND NOTICE TO ALL PARTIES by Judge Terry J. Hatter, Jr: Counsel are hereby notified that pursuant to the Judge's directive, the Petitioner's motion for clarification or reconsideration 528 currently set for hearing on December 23, 2019 and Respondent's motion to vacate preliminary injunction and decertify class 533 set for February 17, 2020 are both taken under submission as of the hearing date. No appearances are needed on December 23, 2019 or February 17, 2020. (shb) (Entered: 12/17/2019)
12/17/2019 537 NOTICE OF CLERICAL ERROR: Due to clerical error Re: Vexatious Litigant Filing (CV-115) 536 . THIS DOCUMENT WAS FILED IN THIS CASE IN ERROR. (shb) (Entered: 12/17/2019)
12/18/2019 538 Notice of Electronic Filing re Order on Motion for Order,,, Order on Motion to Vacate,, 535 , NOTICE OF MOTION AND MOTION to Vacate Order on Motion for Preliminary Injunction,, 255 and certify class 533 , MEMORANDUM in Opposition to Motion, 531 , Vexatious Litigant Filing (CV-115) 536 , Notice of Clerical Error (G-11) 537 , NOTICE OF MOTION AND MOTION for Order for Clarification or Reconsideration of Order (Dkt. 527) 528 , Notice of Appearance or Withdrawal of Counsel (G-123), 530 , Notice of Change of Attorney Business or Contact Information (G-06),, 529 , Reply (Motion related), 534 , Order on Motion to Dismiss 527 , Deficiency in Electronically Filed Documents (G-112A) - optional html form,, 532 e-mailed to Sarah S. Wilson bounced due to No longer with the Office of Immigration. The primary e-mail address associated with the attorney record has been deleted. Pursuant to Local Rules it is the attorneys obligation to maintain all personal contact information including e-mail address in the CM/ECF system. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (lmh) TEXT ONLY ENTRY (Entered: 12/18/2019)
12/27/2019 539 OPPOSITION re: NOTICE OF MOTION AND MOTION to Vacate Order on

Motion for Preliminary Injunction,, 255 and certify class 533 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Raul Ernesto Morales, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. (Arulanantham, Ahilan) (Entered: 12/27/2019)
01/22/2020 540 Joint STIPULATION for Order for Scheduling Order filed by Plaintiffs Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Raul Ernesto Morales, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Proposed Order)(Attorney Zoe Nicole McKinney added to party Raul Ernesto Morales(pty:pet))(McKinney, Zoe) (Entered: 01/22/2020)
01/27/2020 541 ORDER GRANTING JOINT STIPULATION FOR SCHEDULING ORDER 540 by Judge Terry J. Hatter, Jr.: Respondents shall file any reply in support of the motion to vacate and decertify by January 29, 2020. The motion shall be noticed for February 17, 2020. Fact discovery: Respondents produced an initial set of information responsive to these requests on December 13, 2019, and Respondents will produce the remainder of discovery relating to bond hearings conducted under the injunction that Petitioners have already propounded by February 15, 2020. The Parties will exchange updated disclosures pursuant to Fed. R. Civ. P. 26 on February 7, 2020. Expert discovery: The Parties will update expert disclosures and prepare and serve expert reports by April 17, 2020. The Parties will prepare and serve rebuttal reports by June 15, 2020. Expert discovery will close on August 3, 2020. Briefing for dispositive motions: Regarding the schedule for anticipated cross-motions for summary judgment, Petitioners will file their opening motion for summary judgment on September 11, 2020. Respondents will file their brief in opposition and cross motion for summary judgment on October 15, 2020. Petitioners will file a rebuttal brief in opposition to Respondents summary judgment motion and reply in support of their summary judgment motion on November 13, 2020. Respondents will file their reply in support of their cross motion for summary judgment on December 7, 2020. The motions shall be noticed for December 21, 2020. See order for further details. (shb) (Entered: 01/27/2020)
02/18/2020 542 STIPULATION to Reset filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Attachments: # 1 Proposed Order)(Wilson, Sarah) (Entered: 02/18/2020)
02/24/2020 543 ORDER ON JOINT STIPULATION TO RECALENDAR SUBMISSION DATE FOR RESPONDENTS MOTION TO VACATE THE PRELIMINARY INJUNCTION AND DECERTIFY CLASS 542 by Judge Terry J. Hatter, Jr. IT IS ORDERED that Respondents Motion to Vacate the Preliminary Injunction and Decertify Class be re-calendared from February 17, 2020, to March 16, 2020. (shb) (Entered: 02/25/2020)
03/02/2020 544 REPLY in support of NOTICE OF MOTION AND MOTION to Vacate Order on Motion for Preliminary Injunction,, 255 and certify class 533 filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Wilson, Sarah) (Entered: 03/02/2020)

03/02/2020 545 Mail Returned addressed to Frederick Ngaywa re Order, Set/Reset Deadlines, 541 (shb) (Entered: 03/03/2020)
03/09/2020 546 ORDER by Judge Terry J. Hatter, Jr: re 528 MOTION for Order for clarification or reconsideration of the Court's November 7,2019 order. IT IS ORDERED that the motion be, and hereby is GRANTED. An amended order will issue. (shb) (Entered: 03/10/2020)
03/09/2020 547 AMENDED ORDER by Judge Terry J. Hatter, Jr: IT IS ORDERED that the motion to dismiss be, hereby is GRANTED as to Petitioner Alex Cacho Castillo and Petitioner's Section 1231 claim. IT IS FURTHER ORDERED that the motion to dismiss be, and hereby is DENIED as to Petitioner's Eighth Amendment claim. See order for further details. re MOTION for Order for Clarification or Reconsideration of Order (Dkt. 527), 528 . (shb) (Entered: 03/10/2020)
03/25/2020 548 Mail Returned addressed to Frederick Ngaywa re Order on Motion for Order 546 (shb) (Entered: 03/26/2020)
03/26/2020 549 Mail Returned addressed to Frederick Ngaywa re Order, 547 (shb) (Entered: 03/27/2020)
04/07/2020 550 NOTICE OF MOTION AND MOTION for Reconsideration re Order on Motion for Order 546 , Order, 547 , NOTICE OF MOTION AND MOTION to Vacate Order on Motion for Summary Judgment,,,,,,,, Order on Motion for Order,,, 353 filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. Motion set for hearing on 5/11/2020 at 10:00 AM before Judge Terry J. Hatter Jr. (Attachments: # 1 Memorandum, # 2 Proposed Order) (Wilson, Sarah) (Entered: 04/07/2020)
04/17/2020 551 Joint STIPULATION for Order to Temporarily Suspend Case Schedule filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Raul Ernesto Morales, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Proposed Order)(Arulanantham, Ahilan) (Entered: 04/17/2020)
04/20/2020 552 Opposition re: NOTICE OF MOTION AND MOTION for Reconsideration re Order on Motion for Order 546 , Order, 547 NOTICE OF MOTION AND MOTION to Vacate Order on Motion for Summary Judgment,,,,,,,, Order on Motion for Order,,, 353 550 filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Raul Ernesto Morales, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. (Arulanantham, Ahilan) (Entered: 04/20/2020)
04/27/2020 553 REPLY in support of NOTICE OF MOTION AND MOTION for Reconsideration re Order on Motion for Order 546 , Order, 547 NOTICE OF MOTION AND MOTION to Vacate Order on Motion for Summary Judgment,,,,,,,, Order on Motion for Order,,, 353 550 filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (Wilson, Sarah) (Entered: 04/27/2020)
05/19/2020 554 ORDER GRANTING JOINT STIPULATION TO TEMPORARILY SUSPEND

CASE SCHEDULE by Judge Terry J. Hatter, Jr 551 Good cause having been shown in the parties' Joint Stipulation, the Stipulation is hereby GRANTED. The scheduling order entered on January 27, 2020, Dkt. 541, shall be stayed from April 15, 2020 to June 15, 2020 in light of the COVID-19 pandemic. the Parties shall reassess the need for extending the stay prior to the end of this 60-day period. Should the parties wish to continue the stay beyond June 15, 2020, they shall inform the Court by separate filing. It is so ORDERED. (See Order for further details) (yl) (Entered: 05/20/2020)
05/28/2020 555 ORDER by Judge Terry J. Hatter, Jr: DENYING AS MOOT 533 MOTION to Vacate Order on Motion for Preliminary Injunction and Decertify class. Finally, while considering the procedural quagmire caused by the continuation of the permanent injunction, the Court simultaneously considered Respondents motion to de-certify the class. When the Court certified this case into sub-classes, it did so pursuant to Rodriguez I. Thereafter, the certification of the class permeated all aspects of this case. Indeed, the Courts original preliminary and permanent injunctions ordered remedies based on class members membership in particular sub-classes. See Rodriguez II and III. Because the Ninth Circuit ordered the permanent injunction to remain in effect, the decertification of the class, at this juncture, would move this case backward rather than forward. As previously stated, that is not the direction the Court is attempting to move this case. Consequently, the motion to decertify the class must be denied. (shb) (Entered: 05/28/2020)
06/16/2020 556 Joint STIPULATION to Stay Case filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Raul Ernesto Morales, Efren Orozco, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Proposed Order)(Arulanantham, Ahilan) (Entered: 06/16/2020)
06/18/2020 557 ORDER GRANTING JOINT STIPULATION TO TEMPORARILY SUSPEND CASE SCHEDULE, 556 by Judge Terry J. Hatter, Jr: This Court extends the current stay in this case for an additional 30 days to July 15, 2020. The parties case schedule to this Court, or, should the parties wish to continue the stay beyond July 15m 2020, to inform the Court by separate filing. (shb) (Entered: 06/18/2020)
06/29/2020 558 Mail Returned addressed to Frederick Ngaywa re Order, 557 (shb) (Entered: 06/30/2020)
07/27/2020 559 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Respondents Russell Davis, Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. Appeal of Order on Motion to Vacate,,,, 555 . (Appeal Fee - Not Required for US Goverment.) (Wilson, Sarah) (Entered: 07/27/2020)
07/30/2020 560 NOTIFICATION from Ninth Circuit Court of Appeals of case number assigned and briefing schedule. Appeal Docket No. 20-55770 assigned to Notice of Appeal to 9th Circuit Court of Appeals, 559 as to respondents Arthur Edwards, Eric Holder, Sandra Hutchens, Mike Kreuger, Wesley Lee, Janet Napolitano, Nguyen, Davis Nighswonger, Rodney Penner, Timothy Robbins, Thomas G Snow. (lom) (Entered: 07/31/2020)

09/17/2020 561 Joint STIPULATION for Order Re Scheduling filed by Petitioners Yussuf Abdikadir, Angel Armando Ayala, Jose Farias Cornejo, Abdirizak Aden Farah, Raul Ernesto Morales, Alejandro Rodriguez, Abel Perez Ruelas. (Attachments: # 1 Proposed Order)(Arulanantham, Ahilan) (Entered: 09/17/2020)
09/18/2020 562 ORDER GRANTING JOINT STIPULATION FOR SCHEDULING ORDER 561 by Judge Terry J. Hatter, Jr: The Stipulation is hereby GRANTED. The following schedule for resolving outstanding issues in this case, including the need to update disclosures and expert reports, conduct limited discovery, resolve class certification issues, and eventual cross motions for summary judgment, is so ORDERED:Supplemental Initial Disclosures: The Parties will update their initialdisclosures by October 16, 2020. Fact discovery: Respondents will respond to certain already-served discovery requests by October 16, 2020. The Parties shall file any motion to compel discovery related to the outstanding discovery requests by November 6, 2020. Expert discovery: The Parties shall update expert disclosures and prepare and serve expert reports by December 18, 2020; and rebuttal reports by January 29, 2021. Discovery Cut Off: The discovery cutoff will be February 12, 2021. See order for further dates and details. (shb) (Entered: 09/18/2020)

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 (RNBx),CLOSED,CONSOLTR,DISCOVERY,REFVAC,RELATED−G
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Southern Division − Santa Ana)
CIVIL DOCKET FOR CASE #: 8:11−cv−01287−TJH−RNB

Frederick Ngaywa v. Eric H Holder et al Assigned to: Judge Terry J. Hatter, Jr Referred to: Magistrate Judge Robert N. Block Lead case: 2:07−cv−03239−TJH−RNB Member case: (View Member Case)
Related Case: 2:12−cv−03280−TJH−FMO
Cause: 28:2241 Petition for Writ of Habeas Corpus (federal)
Petitioner

Date Filed: 08/26/2011 Date Terminated: 04/07/2016 Jury Demand: None Nature of Suit: 463 Habeas Corpus − Alien Detainee Jurisdiction: U.S. Government Defendant

Frederick Ngaywa

represented by Frederick Ngaywa A 95 722 629 PO Box 6005 Adelanto, CA 92301 BK 2597017 PRO SE

V. Respondent Eric H Holder Attorney General of the United States
Respondent Troy Lund Los Angeles Field Office Director, Immigration and Customs Enforcement (ICE)
Respondent Janet Napolitano Secretary of Homeland Security
Respondent

represented by Assistant US Attorney SA−CV AUSA − Office of US Attorney Santa Ana Branch−Civil Div 411 West 4th Street Suite 8000 Santa Ana, CA 92701−4599 714−338−3500 Email: USACAC.SACivil@usdoj.gov ATTORNEY TO BE NOTICED
Stacey Ilene Young Department of Justice − Civil Division Office of Immigration Litigation 450 5th Street NW Room 6018 Washington, DC 20044 202−305−7171 Email: stacey.young@usdoj.gov ATTORNEY TO BE NOTICED
represented by Assistant US Attorney SA−CV (See above for address) ATTORNEY TO BE NOTICED
Stacey Ilene Young (See above for address) ATTORNEY TO BE NOTICED
represented by Assistant US Attorney SA−CV (See above for address) ATTORNEY TO BE NOTICED
Stacey Ilene Young (See above for address) ATTORNEY TO BE NOTICED

Sandra Hutchens Sheriff and Coroner of Orange County
Respondent Charles Gilkey Wardenm Adelanto Detention Facility

represented by Stacey Ilene Young (See above for address) ATTORNEY TO BE NOTICED
represented by Stacey Ilene Young (See above for address) ATTORNEY TO BE NOTICED

Date Filed 08/26/2011 08/26/2011
09/07/2011
09/08/2011 09/08/2011 09/15/2011
09/15/2011
09/27/2011 10/03/2011 10/05/2011 10/18/2011

# Docket Text
1 PETITION for Writ of Habeas Corpus by a Person In Federal Custody (28:2241). Case assigned to Judge Dale S. Fischer and referred to Magistrate Judge Fernando M. Olguin.(Filing fee $5 Fee paid). Filed by Petitioner Frederick Ngaywa.(lwag) Modified on 9/7/2011 (mr). (Entered: 08/31/2011)
2 NOTICE OF REFERENCE TO A U.S. MAGISTRATE JUDGE. Pursuant to the provisions of the Local Rules, the within action has been assigned to the calendar of Judge Dale S. Fischer and referred to Magistrate Judge Fernando M. Olguin to consider preliminary matters and conduct all further matters as appropriate. The Court must be notified within 15 days of any change of address. (lwag) (Entered: 08/31/2011)
3 NOTICE OF DISCREPANCY AND ORDER: by Magistrate Judge Fernando M. Olguin, ORDERING Letter re: money due on H/C, SA CV 11−1287 DSF (FMO) submitted by Petitioner Frederick Ngaywa received on 9/6/11 is not to be filed but instead rejected. Denial based on: No copy provided for judge. Improper communication − no letters to the court per Local Rule 83−2.11. The filing fee has been paid; no further fees necessary. (mr) (Entered: 09/07/2011)
4 FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS against Respondent Janet Napolitano, Troy Lund, Eric H. Holder amending Petition for Writ of Habeas Corpus (2241) 1 ,filed by petitioner Frederick Ngaywa. (mr) (Entered: 09/14/2011)
5 MOTION for Appointment of Counsel filed by petitioner Frederick Ngaywa. (mr) (Entered: 09/14/2011)
6 ORDER REQUIRING RETURN TO FIRST AMENDED PETITION 4 FOR WRIT OF HABEAS CORPUS (28 U.S.C. § 2241) by Judge Fernando M. Olguin. Respondent shall file a Notice of Appearance no later than September 29, 2011. Respondent shall file a single Motion to Dismiss no later than thirty (30) days from the filing date of this Order. Respondent shall file a Return to the First Amended Petition no later than November 14, 2011. Petitioner shall file a Reply to the Return no later than January 13, 2012. (mr) (Entered: 09/15/2011)
7 ORDER Re: MOTION FOR APPOINTMENT OF COUNSEL by Magistrate Judge Fernando M. Olguin: IT IS ORDERED THAT petitioner's "Motion for Appointment of Counsel; and Declaration in Support Thereof" (Document No. 5 ) is denied without prejudice. Nothing in this Order is intended to preclude petitioner from retaining counsel on his own, at his own expense. (mr) (Entered: 09/15/2011)
8 NOTICE of Appearance filed by attorney Stacey Ilene Young on behalf of Respondents Eric H Holder, Sandra Hutchens, Troy Lund, Janet Napolitano (Young, Stacey) (Entered: 09/27/2011)
9 NOTICE of Change of address Changing address to P.O. Box 6005, Adelanto, CA 92301. Filed by Petitioner Frederick Ngaywa. (mr) (Entered: 10/03/2011)
10 NOTICE OF DISCREPANCY AND ORDER: by Magistrate Judge Fernando M. Olguin, ORDERING Motion to Request Leave to Supplement Petition submitted by Petitioner Frederick Ngaywa received on 10/03/11 is not to be filed but instead rejected. Denial based on: No copy provided for judge. (mr) (Entered: 10/05/2011)
11 NOTICE OF DISCREPANCY AND ORDER: by Magistrate Judge Fernando M. Olguin, ORDERING Motion to Request Leave to Supplement Petition submitted by

10/18/2011 10/24/2011 10/28/2011 10/31/2011
11/02/2011 11/14/2011 11/15/2011 11/17/2011
11/28/2011
11/28/2011 12/01/2011 12/13/2011 12/19/2011

Petitioner Frederick Ngaywa received on 10/14/11 is not to be filed but instead rejected. Denial based on: Failure to submit proposed amended petition per Local Rule 15. (mr) (Entered: 10/18/2011)
12 NOTICE OF DISCREPANCY AND ORDER: by Magistrate Judge Fernando M. Olguin, ORDERING Motion to Substitute Custodian, Motion to Request Leave to Supplement Writ Of Habeas Corpus, Motion to Declare Transfer Erroneous submitted by Petitioner Frederick Ngaywa received on 10/14/11 is not to be filed but instead rejected. Denial based on: No copy provided for judge. (mr) (Entered: 10/18/2011)
13 MOTION to Substitute Custodian filed by petitioner Frederick Ngaywa. (es) (Entered: 10/28/2011)
14 MOTION to Forestall Transfer of Custody During Habeas Proceedings (Per FRAP Rule 23(a)) filed by petitioner Frederick Ngaywa. (es) (Entered: 10/31/2011)
15 MINUTES (IN CHAMBERS): ORDER by Magistrate Judge Fernando M. Olguin: Having received and reviewed petitioner's "Motion to Substitute Custodian," (Motion) filed on October 24, 2011, IT IS ORDERED THAT Petitioner's Motion is granted. Accordingly, pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, the court hereby substitutes Charles Gilkey as the proper respondent in this matter. *See order for details* (es) (Entered: 10/31/2011)
16 ORDER DENYING MOTION TO FORESTALL TRANSFER OF CUSTODY by Magistrate Judge Fernando M. Olguin. *See attached order for further details.* (es) Modified on 11/2/2011 (es). (Entered: 11/01/2011)
17 EX PARTE APPLICATION for Extend Time to File Answer to 11/28/2011 filed by Respondents Charles Gilkey, Eric H Holder, Sandra Hutchens, Troy Lund, Janet Napolitano. (Attachments: # 1 Declaration, # 2 Proposed Order)(Young, Stacey) (Entered: 11/14/2011)
18 NOTICE of Related Case(s) filed by Respondents Charles Gilkey, Eric H Holder, Sandra Hutchens, Troy Lund, Janet Napolitano. Related Case(s): 07−cv−3239 (Attachments: # 1 Exhibit Exhibit − 1, # 2 Exhibit Exhibit − 2, # 3 Exhibit Exhibit − 3)(Young, Stacey) (Entered: 11/15/2011)
19 ORDER EXTENDING TIME FOR RESPONDENTS TO FILE THEIR RETURN TO PETITIONER'S FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS by Magistrate Judge Fernando M. Olguin: IT IS HEREBY ORDERED that the time for Respondents to file their return shall be extended to November 28, 2011. 17 Petitioner shall serve and file a single reply to the Return no later than January 13, 2012. (es) (Entered: 11/17/2011)
20 ORDER TO REASSIGN CASE PURSUANT TO Section 5.4 of General Order 08−05 by Judge James V. Selna, Chair of the Case Management and Assignment Committee, all related Indefinite Detention cases are assigned to Judge Terry J. Hatter, Jr. for all further proceedings. The case number will now read as follows: SACV 11−01287 TJH(FMO). The Related Group Control Case Number is: SACV 11−01287 TJH(FMO). (rn) (Entered: 11/28/2011)
21 EXPARTE APPLICATION for Extension of Time to File Return filed by Respondents Charles Gilkey, Eric H Holder, Sandra Hutchens, Troy Lund, Janet Napolitano. (Attachments: # 1 Declaration, # 2 Declaration, # 3 Exhibit, # 4 Proposed Order)(Young, Stacey) (Entered: 11/28/2011)
22 ORDER by Magistrate Judge Fernando M. Olguin: GRANTING 21 Respondent Ex Parte Application for A Second Extensionof Time to File A Return to the Amended Habeas Petition. IT IS HEREBY ORDERED that the time for Respondents to file their return shall be extended to December 19, 2011. Petitioner shall serve and file a single Reply to the Return no later than January 18, 2012. (es) (Entered: 12/01/2011)
23 Motion to Add Parties to Habeas Action filed by petitioner Frederick Ngaywa. (mr) (Entered: 12/14/2011)
24 ANSWER to Amended Petition for Writ of Habeas Corpus 4 filed by Respondents Charles Gilkey, Eric H Holder, Sandra Hutchens, Troy Lund, Janet Napolitano.(Young, Stacey) (Entered: 12/19/2011)

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25 NOTICE OF MOTION AND MOTION to Consolidate Cases, as to 07−3239, filed by Respondents Charles Gilkey, Eric H Holder, Sandra Hutchens, Troy Lund, Janet Napolitano. Motion set for hearing on 1/30/2012 at 09:00 AM before Judge Terry J. Hatter Jr. (Attachments: # 1 Proposed Order)(Young, Stacey) (Entered: 12/19/2011)
26 NOTICE OF DISCREPANCY AND ORDER: by Magistrate Judge Fernando M. Olguin, ORDERING Emergency Motion to Notify Court of Recent Board of Immigration Appeals Decision submitted by Petitioner Frederick Ngaywa received on 12/21/11 is not to be filed but instead rejected. Denial based on: No proof of service attached to documents. (mr) (Entered: 12/22/2011)
27 ORDER by Magistrate Judge Fernando M. Olguin, re MOTION to Consolidate Cases, as to 07−3239, 25 . The court is in receipt of respondents' Motion to Consolidate, filed on December 19, 2011. IT IS ORDERED as follows: Petitioner's Opposition or Notice of Non−Opposition to respondents' Motion must be filed and served no later than January 23, 2012. Respondent may file and serve a Reply Memorandum no later than February 7, 2012. (mr) (Entered: 12/22/2011)
28 ORDER by Magistrate Judge Fernando M. Olguin, re MOTION for Order for Motion to Add Parties to Habeas Action 23 . The court is in receipt of petitioner's Motion to Add Parties to Habeas Action, filed on December 13, 2011. IT IS ORDERED as follows: Respondents' Opposition or Notice of Non−Opposition to petitioner's Motion must be filed and served no later than January 23, 2012. Petitioner may file and serve a Reply Memorandum no later than February 7, 2012. (mr) (Entered: 12/22/2011)
29 OPPOSITION to MOTION for Order for Motion to Add Parties to Habeas Action 23 filed by Respondents Charles Gilkey, Eric H Holder, Sandra Hutchens, Troy Lund, Janet Napolitano. (Young, Stacey) (Entered: 01/20/2012)
31 MINUTES IN CHAMBERS−ORDER AND NOTICE TO ALL PARTIES by Judge Terry J. Hatter, Jr. The Court is in receipt of Respondent's motion to consolidate cases 25 , filed on December 19, 2011. The Court having carefully considered the papers and the evidence submitted by the parties, hereby GRANTS the Respondents' motion and orders that this case is consolidated with Rodriguez v. Robbins, CV 07−3239−TJH (RNB). (lom) (Entered: 04/16/2012)
30 MINUTES (IN CHAMBERS) − ORDER AND NOTICE TO ALL PARTIES by Judge Terry J. Hatter, Jr. Counsel are hereby notified that case Ngaywa v. Holder, et al, SA CV 11−01287−TJH (FMO) isconsolidated with Rodriguez v. Robbins, CV 07−3239−TJH (RNB) for all purposes.Until a further order by the Court, any documents filed by the parties in the consolidated actions shallbear both case numbers, followed by the word "consolidated." CV 07−3239−TJH (RNB) will be the leadcase 25 . (lom) (Entered: 04/16/2012)
32 Mail Returned addressed to Frederick Ngaywa re Minutes of In Chambers Order/Directive re Motion to Consolidate Cases 31 , not deliverable as addressed, unable to forward. (gk) (Entered: 05/16/2012)
33 ORDER TRANSFERRING CIVIL ACTION pursuant to General Order 05−07. ORDER case transferred from Magistrate Judge Fernando M. Olguin to the calendar of Magistrate Judge Robert N. Block for any matters referred pursuant to General Order 05−07. The case number will now reflect the initials of the transferee Judge SACV 11−01287 TJH(RNB). Signed by Magistrate Judge Robert N. Block and Magistrate Judge Fernando M. Olguin. (rn) (Entered: 08/28/2012)
34 ORDER VACATING REFERENCE TO MAGISTRATE JUDGE by Judge Terry J. Hatter, Jr. Reference of case to Magistrate Judge Robert N. Block is vacated. Case transferred to the calendar of Magistrate Judge Robert N. Block for Discovery. Case number now reads as SACV 11−01287 TJH(RNBx). (rn) (Entered: 08/28/2012)
35 MINUTES OF Motion Hearing held before Judge Terry J. Hatter, Jr.: The Court and counsel confer. Following discussions with counsel, the Court will take Petitioner's Motion for Preliminary Injunction [filed 6/25/2012 in Case No. CV 07−03239 TJH (RNBx)] under submission. A written order will follow within 7 days. Court Recorder: CS 9/10/2012. (gk) (Entered: 09/13/2012)
36 ORDER AND PRELIMINARY INJUNCTION by Judge Terry J. Hatter, Jr.: It is Ordered that Petitioners' Motion for Preliminary Injunction is Granted. It is further

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Ordered that Respondents and their agents, employees, assigns, and all those acting in concert with them, are preliminarily enjoined as follows: Within thirty days of the date of this order, Respondents shall identify all members of the Section 1225(b) and Section 1226(c) Subclasses and provide each of them with a bond hearing before an Immigration Judge with power to grant their release. See document for details. (gk) (Entered: 09/13/2012)
37 Mail Returned addressed to Frederick Ngaywa re Order Transferring Case purs GO 05−07 (Magistrate Judge) (G−13) 33 . (gk) (Entered: 09/26/2012)
38 Mail Returned addressed to Frederick Ngaywa re Order Vacating Reference to Magistrate Judge (CV−114) 34 . (gk) (Entered: 09/26/2012)
39 Mail Returned addressed to Frederick Ngaywa re Order and Preliminary Injunction 36 . (gk) (Entered: 10/18/2012)
40 MINUTES (IN CHAMBERS): ORDER AND NOTICE TO ALL PARTIES by Judge Terry J. Hatter, Jr: finding as moot 23 Motion for Order. Counsel are hereby notified that the Petitioner's sealed motion to add parties to Habeas Action 23 in case SA CV 11−1287−TJH, is hereby moot as the case was consolidated with case CV 07−3239− TJH(RNBx) on April 12, 2012 31 . (rp) (Entered: 10/22/2013)
41 Mail Returned addressed to Frederick Ngaywa re Minutes of In Chambers Order 40 . (gk) (Entered: 12/11/2013)
42 Mail Returned addressed to Frederick Ngaywa re Minute Order on Motion to Consolidate Cases 30 . (gk) (Entered: 12/01/2014)
43 MINUTE IN CHAMBERS by Judge Terry J. Hatter, Jr: Case should have been closed on entry dated: 8/6/2013. Per the Order consolidated filed on August 7, 2012 and Order re final judgment filed on August 6, 2013 in the consolidated case CV 07−3239−TJH (RNBx). (Made JS−6. Case Terminated.) (jp) (Entered: 04/07/2016)