Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 1 of 41 Page ID #:1504

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. EDCV 16-00620-JGB (KKx) Title Xochitl Hernandez et al. v. Loretta Lynch et al.

Date November 10, 2016

Present: The Honorable JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE

MAYNOR GALVEZ Deputy Clerk

Not Reported Court Reporter

Attorney(s) Present for Plaintiff(s): None Present

Attorney(s) Present for Defendant(s): None Present

Proceedings:

Order: (1) DENYING Defendants’ Motion to Dismiss (Dkt. No. 59); (2) GRANTING Plaintiffs’ Motion for Class Certification (Dkt. No. 24); and (3) GRANTING Plaintiffs’ Motion for Preliminary Injunction (Dkt. No. 45) (IN CHAMBERS)

Before the Court is: (1) a Motion to Dismiss filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, and Sarah Saldana (collectively “Defendants”) (Dkt. No. 59); (2) a Motion for Class Certification filed by Plaintiffs Xochitl Hernandez and Cesar Matias (“Plaintiffs”) (Dkt. No. 24); and (3) a Motion for Preliminary Injunction filed by Plaintiffs (Dkt. No. 45). After considering the papers submitted in support of and in opposition to the motions and the arguments of counsel, the Court: (1) DENIES Defendants’ Motion to Dismiss; (2) GRANTS Plaintiffs’ Motion for Class Certification; and (3) GRANTS Plaintiffs’ Motion for Preliminary Injunction.
I. PROCEDURAL HISTORY
A. Allegations and Claims in the Complaint
On April 6, 2016, Plaintiffs filed a putative class action Complaint against: (1) U.S. Attorney General Loretta Lynch; (2) Director of the Executive Office for Immigration Review Juan P. Osuna; (3) Secretary of the Department of Homeland Security Jeh Johnson; (4) Director

Page 1 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 2 of 41 Page ID #:1505

of Immigration and Customs Enforcement (“ICE”) Sarah S. Saldana; (5) Field Office Director of the Los Angeles Field Office of ICE David Jennings; (6) Warden of the Adelanto Detention Facility James Janecka; (7) Jail Administrator of the Santa Ana City Jail Christina Holland; (8) Chief of the Santa Ana City Department Carlos Roja; (9) Captain of the Orange County Sheriff’s Department (“OCSD”) Jon Briggs; (10) OCSD Captain Mike Krueger; (11) OCSD Sheriff Sandra Hutchens. (Dkt. No. 1.) Plaintiffs sue each defendant in his or her official capacity and seek habeas, declaratory, and injunctive relief. (Id.)
The Complaint alleges Plaintiffs are currently awaiting removal proceedings. (Compl. ¶ 2.) At the time this action was filed, both Plaintiffs had been detained pending removal proceedings pursuant to the Immigration and Nationality Act (“INA”) (specifically, 8 U.S.C. § 1226(a)). (Id. ¶¶ 2, 7-8.) Hernandez was detained at the Adelanto Detention Center in Adelanto, California, and Matias was detained in the Santa Ana City Jail in Santa Ana, California. (Id.) Both Plaintiffs were granted release on bond by U.S. Immigration Judges pending removal proceedings, but remained detained for prolonged periods of time because they could not afford to pay the amounts required for their bond. (Id.) Plaintiffs challenge the legality of various policies and practices by which U.S. immigration officials under the supervision of Defendants set bond for Plaintiffs and others similarly situated. (Id. ¶¶ 52-63.) Plaintiffs purport to represent a putative class of individuals in the Central District of California detained pending removal proceedings pursuant to 8 U.S.C. § 1226(a).1 (Id. ¶¶ 35-50.)
Plaintiffs challenge the following four policies and practices. First, Plaintiffs allege U.S. immigration officials do not consider detainees’ ability to pay when setting bond. (Id. ¶ 3.) Second, Plaintiffs allege immigration officials do not consider whether conditions of supervision, alone or in combination with a lower bond amount, would suffice to ensure detainees’ appearance during removal proceedings. (Id.) Third, Plaintiffs allege immigration officials require detainees released on bond post the full cash bond amount to be released, instead of permitting them to post a deposit, property, or other assets as collateral. (Id.) Fourth, Plaintiffs allege immigration officials do not recognize a detainee’s inability to post bond, despite having made good faith efforts to do so, as a “changed circumstance” warranting a new bond hearing pursuant to 8 C.F.R. § 1003.19(e). (Id. ¶ 29.) As a result of these policies and practices, Plaintiffs claim, “the government incarcerates Plaintiffs and others solely because they lack the financial means to post the full bond amount that Defendants have set.” (Id. ¶ 3.) Moreover, Plaintiffs contend that they and those similarly situated have “remain[ed] detained for prolonged periods [of time] while their immigration cases are pending.” (Id. ¶ 1.)
Plaintiffs contend the policies and practices described above violate: (1) the INA (specifically, 8 U.S.C. § 1226(a)); (2) the Due Process Clause of the Fifth Amendment to the U.S. Constitution; (3) the Equal Protection Guarantee of the Fifth Amendment to the U.S.

1

Plaintiffs seek certification of the putative class as a habeas corpus class, pursuant to 28

U.S.C. § 2241. (See Compl. ¶ 20; Class Cert Mot. at 9 n.4.) “While ordinarily disfavored, the

Ninth Circuit has recognized that class actions may be brought pursuant to habeas corpus.”

Rodriguez v. Hayes, 591 F.3d 1105, 1117 (9th Cir. 2010).

Page 2 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 3 of 41 Page ID #:1506

Constitution; and (4) the Excessive Bail Clause of the Eighth Amendment to the U.S. Constitution. (Id. ¶¶ 52-63.) Plaintiffs seek: (1) certification of the putative class; (2) declaratory judgment as to the illegality of these policies and practices; (3) writs of habeas corpus for Plaintiffs and an order directing Defendants to grant Plaintiffs new bond hearings; and (4) an injunction ordering Defendants to consider Plaintiffs’ and putative class members’ ability to pay, alternative forms of secured bond, and other conditions of supervision when setting bond, and to provide them with new bond hearings if they are unable to post bond after making good faith efforts to do so. (Id. at 15-16.)
B. Pending Motions
1. Plaintiffs’ Motion for Class Certification
On April 22, 2016, Plaintiffs filed a Motion for Class Certification pursuant to Federal Rule of Civil Procedure 23. (“Class Cert. Mot.,” Dkt. No. 24.) In their Motion, Plaintiffs seek certification of a class of individuals encompassing “[a]ll individuals who are or will be detained pursuant to 8 U.S.C. § 1226(a) on a bond set by an U.S. Immigration and Customs Enforcement officer or an Immigration Judge in the Central District of California.” (Id.) In support, Plaintiffs filed the following documents:
 Declaration of Michael Tan and eight accompanying exhibits (Dkt. No. 24-1);  Declaration of Lauren Esterle (Dkt. No. 24-2);  Declaration of Talia Inlender (Dkt. No. 24-3);  Declaration of Michael Kaufman (Dkt. No. 24-4);  Declaration of Matthew Sloan (Dkt. No. 24-5);  Declaration of Xochitl Hernandez (Dkt. No. 24-6) and an accompanying exhibit;2
and  Declaration of Cesar Amilcar Matias Menjivar (“Matias Decl.,” Dkt. No. 24-7).
On June 6, 2016, Defendants filed an Opposition and thirteen accompanying exhibits. (Dkt. No. 56, 56-1, 56-2, 56-3, 56-4, 56-5, 56-6, 56-7, 56-8, 56-9, 56-10, 56-11, 56-12, 56-13.)
On June 13, 2016, Plaintiffs filed a Reply. (Dkt. No. 63.)
2. Plaintiffs’ Motion for Preliminary Injunction
On May 19, 2016, Plaintiffs filed a Motion for Preliminary Injunction, seeking a preliminary injunction “requir[ing] that immigration officials consider ability to pay when setting a bond amount and release on alternative conditions where appropriate, and set bond at no greater amount than necessary to ensure the person’s appearance.” (“Prelim. Inj. Mot.,” Dkt.

2

Plaintiffs filed a corrected version of Hernandez’s declaration on April 26, 2016. (Dkt.

No. 34.) The Court’s citations to the declaration refer to this corrected version.

Page 3 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 4 of 41 Page ID #:1507

No. 45.) In support, Plaintiffs filed a Declaration of Alexis Warren and ten accompanying exhibits. (Dkt. No. 45-1, 45-2, 45-3, 45-4, 45-5, 45-6, 45-7, 45-8, 45-9, 45-10, 45-11.)
On June 6, 2016, Defendants filed an Opposition and thirteen accompanying exhibits. (Dkt. No. 55, 55-1, 55-2, 55-3, 55-4, 55-5, 55-6, 55-7, 55-8, 55-9, 55-10, 55-11, 55-12, 55-13.)

On June 13, 2016, Plaintiffs filed Replies to Defendants’ Opposition.3 (Dkt. No. 62, 64.)

3. Defendants’ Motion to Dismiss

On June 10, 2016, Defendants filed a Motion to Dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6).4 (“MTD,” Dkt. No. 59.) In support, Defendants filed thirteen accompanying exhibits.5 (Dkt. No. 59-1, 59-2, 59-3, 59-4, 59-5, 59-6, 59-7, 59-8, 59-9, 59-10, 5911, 59-12, 59-13.) On July 11, 2016, Plaintiffs filed an Opposition. (Dkt. No. 67.) On July 18, 2016, Defendants filed a Reply and an accompanying exhibit. (Dkt. No. 68, 68-1.)

4. Supplemental Filings

On August 10, 2016, in response to an Order of this Court, Plaintiffs and Defendants filed supplemental briefs. (Dkt. No. 72, 73.) In addition, Plaintiffs filed a supplemental declaration by Michael Kaufman and two accompanying exhibits. (“Supp. Kaufman Decl. I,” Dkt. No. 74, 741.)

On August 22, 2016, the Court held a hearing on the parties’ motions.

On September 10, 2016, Defendants filed a status report stating Hernandez appeared for a bond hearing before Immigration Judge Ana Partida on August 23, 2016 and was subsequently released on bond on September 9, 2016. (Dkt. No. 78.) On September 12, 2016, Plaintiffs filed a response to the status report, a second supplemental declaration by Michael Kaufman (“Supp. Kaufman Decl. II”), and two accompanying exhibits. (Dkt. No. 79, 80, 80-1.) On September 16, 2016, Defendants filed a copy of the transcript of Hernandez’s August 23, 2016 bond hearing.6 (Dkt. No. 81, 81-1.)

3

The Replies appear to be identical. The Court therefore does not specify which of these

replies it cites in its paginated references to them.

4

Defendants filed a corrected version of the Motion on June 13, 2016. (Dkt. No. 60-1.)

The Court’s citations to the Motion refer to this corrected version.

5

Defendants have filed the same thirteen exhibits in connection with all three of the

motions currently before the Court. For purposes of simplicity, the Court refers to these exhibits

as “Defs., Ex. No.”

6

On October 11, 2016, Defendants also filed a status report stating the Board of

Immigration Appeals reversed a prior bond amount set for Hernandez. (Dkt. No. 82, 82-1.) The

Board of Immigration Appeals’ order has no bearing on the issues implicated in this action.

Page 4 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 5 of 41 Page ID #:1508

II. LEGAL AND FACTUAL BACKGROUND
A. Bond Determinations by U.S. Immigration Officials Under 8 U.S.C. § 1226(a)
8 U.S.C. § 1226(a) (“Section 1226(a)”) authorizes the arrest and detention of noncitizens whom the U.S. Government (“Government”) is seeking to remove from the United States. Under Section 1226(a), the U.S. Attorney General has discretion to either detain arrested noncitizens or release them on a bond of “at least $1,500” or “conditional parole,” pending a decision on whether to deport them from the U.S.7 The Attorney General shares the authority to detain or release noncitizens under Section 1226(a) with the Secretary of Homeland Security (“DHS”), who has the authority to “prescribe” bond in immigration proceedings. 8 U.S.C. §§ 1103(a), (g)(2).
When a noncitizen is detained under Section 1226(a), an ICE officer within DHS makes an initial custody determination as to whether the noncitizen should be released, and if so, whether on recognizance, bond, or other conditions. See 8 C.F.R. § 1236.1(d)(1). The noncitizen may then seek review of an ICE custody determination before a U.S. Immigration Judge at a “custody redetermination” hearing. Id. At the hearing, the Immigration Judge determines anew whether the noncitizen may be released on recognizance, bond, or other conditions. See 8 C.F.R. § 1236.1(d)(1); 8 C.F.R. § 1003.19(d).
For an ICE official or an Immigration Judge to order release, the noncitizen detainee bears the burden of “demonstrat[ing] to the satisfaction of the officer that [his or her] release would not pose a danger to property or persons, and that [he or she] is likely to appear for any future proceedings.” 8 C.F.R. § 1236.1(c)(8); In Re Adeniji, 22 I. & N. Dec. 1102, 1102 (BIA 1999). Noncitizens who present a danger to persons or property are ineligible for bond. In Re Guerra, 24 I. & N. Dec. 37, 38 (BIA 2006). If the ICE officer or Immigration Judge determines that the detainee does not pose a danger and is likely to appear at future proceedings, the officer may then release the detainee on recognizance, bond, or other conditions that sufficiently address any concerns about flight risk. See 8 C.F.R. §§ 1236.1(c)(8), (d)(1). After an initial bond determination, a detainee’s request for a subsequent bond redetermination can be considered only “upon a showing that the alien’s circumstances have changed materially” since the prior bond determination. 8 C.F.R. § 1003.19(e). An Immigration Judge’s bond determination is reviewable by the Board of Immigration Appeals (“BIA”). See 8 C.F.R. §§ 1003.1(b)(7), 1003.19(f), 1003.38, 1236.1(d)(3)(i).
The BIA instructs Immigration Judges to consider the following nine factors when “determining whether an alien merits release [on] bond, as well as the amount of bond that is appropriate”: “(1) whether the alien has a fixed address in the United States; (2) the alien’s length of residence in the United States; (3) the alien’s family ties in the United States, and

7

The statute also provides for the mandatory detention of noncitizens who are inadmissible

or deportable by reason of having committed certain criminal offenses. See 8 U.S.C. § 1226(c).

Defendants do not contend this provision supports detention of either Plaintiff.

Page 5 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 6 of 41 Page ID #:1509

whether they may entitle the alien to reside permanently in the United States in the future; (4) the alien’s employment history; (5) the alien’s record of appearance in court; (6) the alien’s criminal record, including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses; (7) the alien’s history of immigration violations; (8) any attempts by the alien to flee prosecution or otherwise escape from authorities; and (9) the alien’s manner of entry to the United States.” Guerra, 24 I. & N. Dec. at 40. According to the BIA, Immigration Judges possess “broad discretion in deciding the factors that he or she may consider” and “may choose to give greater weight to one factor over others, as long as the decision is reasonable.” Id. “The burden is on the alien to show to the satisfaction of the Immigration Judge that he or she merits release on bond.” Id.
The Executive Office for Immigration Review also publishes an “Immigration Judge Benchbook” listing many of the same factors identified by the BIA as considerations during bond determinations.8 See EOIR Immigration Judge Benchbook, Introductory Guides: Bond, at 6-7, available at https://www.justice.gov/eoir/immigration-judge-benchbook. The Benchbook also identifies a detainee’s “ability to pay” as a “less significant” factor that is “not dispositive.” Id. at 7.
The Ninth Circuit has held that the Government may not detain an individual pursuant to Section 1226(a) “for a prolonged period without providing him a neutral forum in which to contest the necessity of his continued detention.” Casas-Castrillon v. Dep't of Homeland Sec., 535 F.3d 942, 949 (9th Cir. 2008). “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 v. Napolitano, 634 F.3d 1081, 1092 n.13 (9th Cir. 2011). Hence, the Ninth Circuit requires the Government to automatically conduct bond hearings for individuals detained under Section 1226(a) every six months “so that [they] may challenge their continued detention as the period of . . . confinement grows.” Rodriguez v. Robbins, 804 F.3d 1060, 1085, 1089 (9th Cir. 2015) (internal citation and quotation marks omitted), cert. granted sub nom. Jennings v. Rodriguez, 136 S. Ct. 2489 (2016). At these hearings, Immigration Judges are required to consider alternatives to detention when setting bond amounts. Id. at 1087-88. To distinguish these courtmandated hearings from initial bond determination proceedings, the Court refers to them as “Rodriguez hearings.” Unlike at the initial bond determination stage, the burden rests upon the Government during Rodriguez hearings to prove “by clear and convincing evidence that an alien

8

The Benchbook “was designed by Immigration Judges in collaboration with others for

use by Immigration Judges . . . to assist Immigration Judges in continuing their duties in the

immigration courts of this country on a daily basis.” See EOIR Immigration Judge Benchbook,

Introduction: Using the Benchbook, available at https://www.justice.gov/eoir/immigration-judge-

benchbook. The Benchbook “is not designed to influence how a Judge decides a case or even to

suggest a particular path to follow in resolving a case” and merely purports to be “a portal

through which one can begin the journey for the correct answer on an issue in a case.” Id. The

Benchbook “stress[es] that a Judge should check the applicable law in their circuit prior to

rendering a decision.” Id.

Page 6 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 7 of 41 Page ID #:1510

is a flight risk or a danger to the community to justify denial of bond.” Id. at 1087 (internal citation and quotation marks omitted).
In this action, Plaintiffs challenge the Government’s initial bond determination procedures and do not challenge the Government’s practices during Rodriguez hearings.
B. Bond Determination Practices in This District
Plaintiffs present three declarations regarding bond determination practices in this District and Defendants present no evidence disputing the content of these declarations. First, Plaintiffs submit the declaration of their counsel Michael Tan. Tan claims he received data from ICE on December 15, 2015 regarding the number of individuals detained in the “Los Angeles Area of Responsibility”9 after having bond set by an ICE official or Immigration Judge pursuant to 8 U.S.C. § 1226(a).10 (Tan Decl. ¶¶ 2, 5.) The data reflects that, as of October 2, 2015, there were at least 119 individuals detained in this District pursuant to 8 U.S.C. § 1226(a) for whom bond had been determined and who had not posted bond. (Id. ¶ 14, Ex. B.) The data also reflects that initial bond amounts set by ICE officials and Immigration Judges ranged from $1,500 to $100,000. (Id. ¶ 16, Ex. B.) Tan avers he is aware of cases in this District where Immigration Judges have set bond as high as $2.5 million. (Id. ¶ 17.)
Second, Plaintiffs submit a declaration by Lauren Esterle, a Staff Attorney and Georgetown University Law Center Detainee Rights Fellow at the Immigrant Defenders Law Center in Los Angeles California. (See Esterle Decl. ¶ 1.) Esterle avers she has represented individuals detained at the Adelanto Detention Facility in Adelanto, California in their removal proceedings. (Id. ¶ 3.) Esterle also avers she conducted “know-your-rights” presentations for recent arrivals to the facility, met with detained individuals to help identify possible bond eligibility, and met with detainees who requested follow-up consultations regarding Immigration Judges’ bond orders. (Id. ¶ 5.) Esterle estimates she has conducted over 280 consultations with Adelanto detainees, has represented clients at approximately fifteen bond hearings, and has observed thirteen additional bond hearings at the Adelanto Immigration Court. (Id. ¶ 5, 10.)
Based on her work experiences, Esterle declares the following facts. ICE officials and Immigration Judges at the Adelanto Immigration Court set a wide range of bond amounts for individuals detained pursuant to 8 U.S.C. § 1226(a), ranging from $1,500 to $45,000. (Id. ¶ 10.) Detainees who are released on bond must post the full cash amount with ICE in order to be released from detention. (Id. ¶ 9.) During initial bond determinations under Section 1226(a), ICE officers and Immigration Judges are not required to consider either an individual’s ability to

9

The ICE Los Angeles Area of Responsibility oversees all the immigration detention

centers located in the Central District of California, including the Adelanto Detention Facility in

Adelanto, California, the James A. Musick Facility in Irvine, California, the Santa Ana City Jail

in Santa Ana, California, and the Theo Lacy Facility in Orange, California. (Tan Decl. ¶ 4.)

10 ICE sent the data in response to a Freedom of Information Act request by the American Civil Liberties Union. (Tan Decl. ¶ 2, Ex. A.)

Page 7 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 8 of 41 Page ID #:1511

pay a bond or whether a lower bond, alternative bond (such as an appearance, deposit, or collateral bond) or non-monetary conditions of supervision would suffice to address flight risk concerns and permit the person’s release. (Id. ¶¶ 11-12.) In fact, some Immigration Judges refuse to consider a person’s financial circumstances, even when these circumstances are raised by a detainee’s counsel. (Id. ¶ 13.) During Rodriguez hearings, Immigration Judges are also not required to and do not consider an individual’s ability to pay when setting bond. (Id. ¶ 12.) In addition, “the immigration court” does not recognize a person’s financial inability to post bond, despite having made good faith efforts to do so, as a “changed circumstance” warranting a new bond hearing under 8 C.F.R. § 1003.19(e). (Id. ¶ 18.) As a result, many individuals detained under Section 1226(a) who have been granted release on bond remain detained for extended periods of time because they cannot afford to pay the set bond amount. (Id. ¶¶ 14-15.)
Third, Plaintiffs submit a declaration by Talia Inlender, a Staff Attorney at the Immigrants’ Rights Project at Public Counsel in Los Angeles California. (See Inlender Decl. ¶ 1.) Inlender has worked at Public Counsel since October 2008. (Id. ¶ 4.) Inlender’s practice focuses on providing legal orientations, consultations, and direct legal representation to detained immigrants in DHS custody. (Id.) Inlender avers that during her employment with Public Counsel, she has represented noncitizens detained at the Santa Ana City Jail. (Id. ¶ 5.) Inlender claims she routinely consults with detainees to determine whether they are eligible for a bond hearing under Section 1226(a) and has represented detainees at approximately twenty such bond hearings. (Id. ¶ 9.)
Based on her work experiences, Inlender presents the following facts. ICE officials and Immigration Judges at the Los Angeles Immigration Court set a wide range of bond amounts for individuals detained pursuant to 8 U.S.C. § 1226(a), ranging from $1,500 to tens of thousands of dollars. (Id. ¶ 9.) Detainees who are released on bond must post the full cash amount with ICE in order to be released from detention. (Id. ¶ 8.) During initial bond determinations under Section 1226(a), ICE officers and Immigration Judges are not required to consider either an individual’s ability to pay a bond or whether a lower bond, alternative bond or non-monetary conditions of supervision would suffice to address flight risk concerns and permit the person’s release. (Id. ¶¶ 10-11.) Moreover, Immigration Judges routinely do not consider such factors. (Id. ¶ 12.) During Rodriguez hearings, Immigration Judges are also not required to and do not consider an individual’s ability to pay when setting bond. (Id. ¶ 11.) In addition, a person’s financial inability to post bond, despite having made good faith efforts to do so, is not considered a “changed circumstance” warranting a new bond hearing under 8 C.F.R. § 1003.19(e). (Id. ¶ 13.) As a result, many individuals detained under Section 1226(a) who have been granted release on bond remain detained at the Santa Ana City Jail because they cannot afford to pay the set bond amount. (Id. ¶ 12.)
C. Plaintiff Hernandez
Plaintiff Hernandez was born in Mexico in 1976. (Hernandez Decl. ¶ 2.) Hernandez immigrated to the U.S. in the late 1980s and has lived continuously in Los Angeles, California since her arrival. (Id.) She has five children and four grandchildren, all of whom are U.S. citizens. (Id. ¶ 3.) Prior to her arrest and detention by immigration authorities, Hernandez lived

Page 8 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 9 of 41 Page ID #:1512

in a house she rented with her children and grandchildren. (Id. ¶ 4.) Hernandez’s children worked to pay for rent and other daily living expenses, but found it difficult to find steady work. (Id.) Hernandez reports that her family has little assets or savings. (Id.)
On February 24, 2016, while Hernandez was visiting a friend’s house, Los Angeles Police Department (“LAPD”) and ICE officials arrived at the house. (Id. ¶ 5.) The officials stated they were looking for a man they believed was in a gang. (Id.) The officials placed Hernandez and several inhabitants of the house in handcuffs and took them to an LAPD station. (Id.) At the station, Hernandez was asked questions about her identity, but was not charged with any crime. (Id.)
Later that day, Hernandez was transported to an ICE office in downtown Los Angeles. (Id. ¶ 6.) An ICE officer asked Hernandez some basic questions about her identity and immigration history, but did not mention whether she could be released on bond. (Id.) The officer did not ask Hernandez any questions about her financial circumstances, the amount of bond she could pay, or whether she could be released on conditions other than a money bond. (Id.) That same day, ICE initiated removal proceedings against Hernandez. (Defs., Ex. 3.)
On March 9, 2016, Hernandez appeared for a bond hearing in U.S. Immigration Court before Immigration Judge David Burke. (Hernandez Decl. ¶ 7; see also Defs., Ex. 7 (transcript of hearing).) Judge Burke did not ask any questions about Hernandez’s ability to pay bond or her financial circumstances during the hearing. (Hernandez Decl. ¶ 7; see also Defs., Ex. 7.) Judge Burke also did not discuss whether Hernandez could be released on conditions other than a money bond. (Hernandez Decl. ¶ 7; see also Defs., Ex. 7.)
Several days after the hearing, Hernandez received Judge Burke’s bond decision, dated March 17, 2016, in the mail. (Hernandez Decl. ¶ 8; Ex. A (copy of bond decision).) In the decision, Judge Burke found that while Hernandez was not a danger to the community, she was a “flight risk” because she was unlikely to be granted relief from removal and lived in a heavily gang-active area. (Id., Ex. A at 9.) Hence, Judge Burke set bond in the amount of $60,000, on the condition that Hernandez remained at least a quarter of a mile away from various gangassociated addresses and did not associate with the La Mirada street gang.11 (Id.) Hernandez claims her family did not have the money or assets to pay the bond amount set by Judge Burke and that she consequently remained in detention at the Adelanto Detention Center after Judge Burke’s decision. (Id. ¶ 9; Compl. ¶¶ 7, 41.)
On April 13, 2016, during a hearing before Judge Burke, Hernandez requested reconsideration of the bond decision on the grounds that she could not afford to pay it. (Defs., Ex. 6 at 33.) Judge Burke denied Hernandez’s request because there were no “changed circumstances” since Hernandez’s initial bond hearing. (Id. at 33-34.) In addition, Judge Burke

11 The Government presented testimony at the bond hearing that Hernandez was an associate of the La Mirada street gang. (See Hernandez Decl., Ex. A. at 8; see also Defs., Ex. 7.)

Page 9 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 10 of 41 Page ID #:1513

remarked that he “did consider ability to pay” in his prior bond determination, but stated there were “significant issues” in her case that required bond in the amount he had set. (Id. at 33.)
On August 23, 2016, several months after this action was filed, Hernandez appeared for a bond hearing before Immigration Judge Ana Partida. (Dkt. No. 78.) The hearing was conducted pursuant to the Ninth Circuit’s decision in Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015). (See Supp. Kaufman Decl. II, Ex. A (copy of Judge Partida’s decision).) On August 30, 2016, Judge Partida ordered Hernandez released from custody upon payment of a $5,000 bond and enrollment in the “Alternatives to Detention” program. (See Dkt. No. 78.) The decision did not discuss Hernandez’s ability to pay bond. (See Supp. Kaufman Decl. II, Ex. A.) Hernandez was subsequently released upon payment of the bond amount on September 9, 2016 and was placed on ankle monitoring.12 (Dkt. No. 78.)
D. Plaintiff Matias
Plaintiff Matias was born in Sonaguera, Honduras in 1978. (Matias Decl. ¶ 2.) Matias is a gay man and claims to have fled Honduras to escape severe persecution he had suffered on account of his sexual orientation. (Id.) Matias entered the U.S. in May 2005 and has since lived in Los Angeles continuously. (Id.) Prior to being arrested and detained by ICE, Matias worked as a hair stylist and at a clothing factory in Los Angeles. (Id. ¶ 3.) Matias claims to have no savings because he spent the money he earned on rent and basic necessities. (Id.) Matias also claims he does not own a home or any other significant assets. (Id.)
On March 29, 2012, Matias was taken into ICE custody and transferred to a processing center in downtown Los Angeles. (Id. ¶ 4.) An ICE officer interviewed Matias and informed him he would remain detained. (Id. ¶ 5.) When Matias asked if he could be released on bond, the officer told him to ask the Immigration Judge. (Id.) The officer did not ask Matias any questions about his financial circumstances or the amount of bond he could afford to pay. (Id.) The officer also did not inform Matias whether he could be released on conditions other than a money bond. (Id.) Matias was then detained at the Santa Ana City Jail. (Id. ¶ 4.)
On March 29, 2012, ICE initiated removal proceedings against Matias. (Defs., Ex. 10.) On November 8, 2012, Matias had a bond hearing in U.S. Immigration Court before Immigration Judge Lorraine J. Munoz. (Id. ¶ 6.) Judge Munoz did not ask any questions about Matias’s ability to pay bond or his financial circumstances during the hearing. (Id.; see also Defs., Ex. 11 (transcript of hearing).) At the end of the hearing, Judge Munoz set bond at $3,000, but did not ask whether Matias could pay $3,000 or whether he would be willing to pay a smaller bond amount. (Matias Decl. ¶ 6.) Judge Munoz also did not state that she had considered whether Matias could be released on conditions other than a money bond. (Id.) Matias claims he did not have enough money to pay the $3,000 bond and did not know of anyone who could help him pay it. (Id. ¶¶ 7, 10.) Consequently, Matias remained detained at the Santa Ana City Jail. (Compl. ¶ 8.)
12 Plaintiffs do not challenge Judge Partida’s bond determination.

Page 10 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 11 of 41 Page ID #:1514
On February 1, 2013, during a hearing before Judge Munoz, Matias requested to be released from detention to retrieve documents that would help his case. (Id.; Matias Decl. ¶ 7.) Judge Munoz refused to reduce his bond amount and stated the bond amount was “pretty generous.” (Matias Decl. ¶ 7; see also Defs., Ex. 9 at 132 (transcript of hearing).) Judge Munoz also noted that she could not consider reducing the bond amount absent a formal motion. (Defs., Ex. 9 at 133.)
In August 2013, Matias received a letter from ICE. (Matias Decl. ¶ 8.) The letter stated ICE had determined that he could be released on a $3,000 bond and with electronic monitoring. (Id.) ICE officials did not question Matias about his ability to pay this bond amount before he received the letter. (Id.)
In August 2014, Matias requested that his bond amount be reset during a hearing before Judge Munoz because he “[did not] have money to pay for it.” (Id. ¶ 9; Defs., Ex. 12 at 2 (transcript of hearing).) Judge Munoz stated the $3,000 bond amount was “reasonable” and did not lower it or order Matias’s release on his own recognizance. (Matias Decl. ¶ 9.) Judge Munoz noted that the passage of time and Matias’s inability to post bond were “not significant enough” to revise her original bond determination. (Defs., Ex. 12 at 2.)
On January 21, 2016, Matias appeared at another bond determination hearing before Judge Munoz. (Defs., Ex. 13 (transcript of hearing).) At the hearing, Judge Munoz questioned Matias and again found the original bond determination was reasonable. (Id. at 19.) Judge Munoz did not question Matias about his financial circumstances or indicate she had considered whether Matias could be released on conditions other than a money bond. (See id.)
On June 7, 2016 – four years and three months after he was first detained and several months after this action was filed – Matias was released from ICE custody after Community Initiatives for Visiting Immigrants in Confinement (“CIVIC”), a local community organization, raised funds to post Matias’s $3,000 bond. 13 (Supp. Kaufman Decl. I ¶¶ 2-4.)
//

13 On May 2, 2012, Matias applied for asylum, withholding of removal, and protection under the Convention Against Torture. (Matias Decl. ¶ 12.) After proceeding before the Ninth Circuit, Matias’s immigration case was remanded to Immigration Court for consideration of newly obtained evidence on August 4, 2016. (Supp. Kaufman Decl. I, Ex. A.)

Page 11 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 12 of 41 Page ID #:1515

III. DEFENDANTS’ MOTION TO DISMISS14
A. Legal Standard
Federal Rule of Civil Procedure 12(b)(1) allows parties to bring a motion to dismiss a complaint for lack of subject matter jurisdiction. Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). As such, even though a defendant may bring a motion to dismiss for lack of subject matter jurisdiction, it is presumed that the court lacks jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction. Id.
A jurisdictional attack under Rule 12(b)(1) may be either facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2003). “In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Id. Courts accept as true all factual allegations in the complaint in a facial attack. Lacano Investments, LLC v. Balash, 765 F.3d 1068, 1072 (9th Cir. 2014). However, courts do not accept legal conclusions in the complaint as true, even if “cast in the form of factual allegations.” Id. Further, courts need not accept allegations which fail to state a claim to relief that is plausible on its face. Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012).
“By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air, 373 F.3d at 1039. “In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment.” Id. In such a motion, the court need not presume the truthfulness of the plaintiff’s allegations. Id. “Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003)
B. Discussion
Defendants argue the Court lacks jurisdiction over Plaintiffs’ claims on three grounds. First, Defendants argue Plaintiffs have failed to exhaust their administrative remedies because they did not seek a BIA decision on their bond determinations. (MTD at 17-18.) Second,
14 Defendants’ Motion to Dismiss argues both that the Court lacks jurisdiction over Plaintiffs’ claims and that Plaintiffs fail to state a claim on the merits under Federal Rule of Civil Procedure 12(b)(6). When assessing Defendants’ Motion to Dismiss, the Court only addresses Defendants’ jurisdictional arguments and discusses the merits of Plaintiffs’ claims when assessing their entitlement to preliminary injunctive relief.

Page 12 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 13 of 41 Page ID #:1516

Defendants argue 8 U.S.C. § 1226(e) and 8 U.S.C. § 1252(a)(2)(B) bar judicial review of bond determinations by Immigration Judges. (Id. at 19-21.) Third, Defendants argue Matias and Hernandez lack Article III standing to assert claims for injunctive relief. (Defs. Supp. Brief at 24.) The Court addresses each of these arguments in turn.
1. Administrative Exhaustion
a. Applicable Law
On habeas review, exhaustion is a prudential rather than jurisdictional requirement. Singh v. Holder, 638 F.3d 1196, 1203 n.3 (9th Cir. 2011). Courts may require prudential exhaustion if: (1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement would encourage the deliberate bypass of the administrative scheme; or (3) administrative review is likely to allow the agency to correct its own mistakes and to preclude the need for judicial review. Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007). Even if these factors weigh in favor of prudential exhaustion, waiver of exhaustion may be appropriate “where administrative remedies are inadequate or not efficacious, pursuit of administrative remedies would be a futile gesture, irreparable injury will result, or the administrative proceedings would be void.” Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004) (citation and quotation marks omitted). When a petitioner fails to exhaust prudentially required administrative remedies and exhaustion is not excused, “a district court should either dismiss the petition without prejudice or stay the proceedings until the petitioner has exhausted remedies[.]” Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011) (dismissing habeas petition because petitioner sought habeas review of Immigration Judge’s adverse bond determination before appealing to the BIA and did not “demonstrate[] grounds for excusing the exhaustion requirement”).
b. The Parties’ Contentions
Defendants argue Plaintiffs have not exhausted their administrative remedies with respect to the bond determinations they challenge. (MTD at 17-19.) Defendants contend Plaintiffs’ Complaint should be dismissed as premature and “[t]he BIA should have the opportunity to review the Immigration Judge’s bond determination[s] in the first instance under the current standards.” (Id. at 18.) In particular, Defendants maintain Plaintiffs’ claim under 8 U.S.C. § 1226(a) should first be presented to the BIA because the BIA’s interpretation of the statute is entitled to deference under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, (1984). (Id. at 18 n.4.)
Plaintiffs respond that they have met the three-factor test for waiving the exhaustion requirement. (MTD Opp. at 9.) First, Plaintiffs argue a “record of administrative appeal” is unnecessary to resolve Plaintiffs’ claims because they turn on legal questions: namely, whether Defendants’ policies and practice violate 8 U.S.C. § 1226(a) and various constitutional provisions. (Id.) Second, Plaintiffs argue relaxation of the exhaustion requirement in this case would not encourage future habeas petitioners to bypass the administrative scheme because the issues raised by this action will cease to arise once Plaintiffs’ legal claims are resolved. (Id.)

Page 13 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 14 of 41 Page ID #:1517

Third, Plaintiffs argue exhaustion would be futile because the BIA has already determined that Immigration Judges are not required to consider detainees’ ability to pay when setting bond amounts. (Id. at 10.) In support, Plaintiffs cite two unpublished BIA dispositions purportedly holding “that a person’s financial circumstances are irrelevant to a bond determination.” (Id.) Plaintiffs also note that the BIA’s published decision in Guerra does not require Immigration Judges to consider any particular factor at bond hearings and lists nine discretionary factors that Immigration Judges may consider, none of which relate to an individuals’ financial circumstances or alternative conditions of release. (Id.)
c. Analysis
The Court waives the exhaustion requirement in this matter. First, a record of administrative appeal is not necessary to resolve the purely legal questions presented by Plaintiffs’ statutory and constitutional claims. See Singh, 638 F.3d at 1203 n.3. Second, the discreteness of the legal questions presented and Plaintiffs’ request for classwide relief suggest that relaxing the exhaustion requirement in this case will not encourage future habeas petitioners to bypass the administrative scheme, as the issue here will not arise again (at least in this District) once the Court’s ruling becomes final. See id.; El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 742, 747 (9th Cir. 1991) (“[R]elaxing the exhaustion requirement would not significantly encourage bypassing the administrative process because the district court will have jurisdiction only in the rare case alleging a pattern or practice violating the rights of a class of applicants.”) (citation and quotation marks omitted).
Third, the Court is sufficiently convinced that BIA review of Plaintiffs’ bond determinations would be futile. Recourse to administrative remedies is considered “futile” where the agency’s position on the question at issue “appears already set,” and the Court can predict the “very likely” outcome. El Rescate, 959 F.2d at 747. District courts have found unpublished BIA holdings highly probative of whether the BIA has come to a decision on an issue. See Rivera v. Holder, 307 F.R.D. 539, 552 (W.D. Wash. 2015) (collecting cases). Here, Plaintiffs cite two unpublished BIA dispositions holding that a detainee’s ability to pay a bond amount is irrelevant to bond determinations.15 See In Re: Mario Sandoval-Gomez, File: A092 563 965 - IMP, 2008 WL 5477710, at *1 (DCBABR Dec. 15, 2008) (rejecting claim that bond amount was excessive because “an alien’s ability to pay the bond amount is not a relevant bond determination factor”); In Re: Nelson Salvador Castillo-Cajura, File: A089 853 733 - TAC, 2009 WL 3063742, at *1 (DCBABR Sept. 10, 2009) (same). Moreover, as Plaintiffs note, an individual’s ability to pay and alternative conditions of release are not listed among the nine
15 At the hearing on this matter, Defendants’ counsel represented that some unpublished BIA dispositions consider an individual’s ability to pay and others do not. Defendants do not provide a comprehensive list of such decisions in their briefing. In any case, the Court is nonetheless persuaded that exhaustion would be futile because an individual’s ability to pay and alternative conditions of release are not listed among the nine discretionary factors Immigration Judges are instructed to consider when making bond determinations under Guerra – a published BIA decision.

Page 14 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 15 of 41 Page ID #:1518

discretionary factors Immigration Judges are instructed to consider when making bond determinations under Guerra.16 See 24 I. & N. Dec. 37, 38 (BIA 2006). The Court is therefore persuaded that requiring Plaintiffs to first seek review of their bond determinations before the BIA would be futile. El Rescate, 959 F.2d at 747.
Accordingly, the Court DENIES Defendants’ Motion to Dismiss insofar as it seeks dismissal of this action for Plaintiffs’ failure to exhaust administrative remedies.
2. Judicial Review of Bond Determinations
a. Applicable Law
8 U.S.C. § 1226(e) bars judicial review of matters within the discretion of the Attorney General. The statute provides as follows:
The Attorney General’s discretionary judgment regarding the application of this section 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.
8 U.S.C. § 1226(e). The Ninth Circuit has held that Section 1226(e) bars federal courts from entertaining claims that an Immigration Judge “set an excessively high bond amount” that the claimant could not afford. Prieto-Romero v. Clark, 534 F.3d 1053, 1067 (9th Cir. 2008). At the same time, “[a]lthough § 1226(e) restricts jurisdiction in the federal courts in some respects, it does not limit habeas jurisdiction over constitutional claims or questions of law.” Leonardo, 646 F.3d at 1160 (internal citation and quotation marks omitted). In particular, “[i]t is now clear that ‘a federal district court has habeas jurisdiction under 28 U.S.C. § 2241 to review Casas–Castrillon bond hearing determinations for constitutional claims and legal error.’” Id. (quoting Singh, 638 F.3d at 1200-01). “In addition, although the Attorney General’s discretionary judgment . . . shall
16 Defendants briefly argue the “ability to pay is a factor that is already considered in setting bond” because the Executive Office for Immigration Review’s Immigration Judge Benchbook lists it as a factor to consider in bond determinations. (MTD at 2.) In addition, Defendants note one of the nine bond determination factors listed in Guerra is “employment history.” (Id. at 2-3.) Defendants contend this factor “implicitly includes a consideration of ability to pay.” (Id.) The Court is unpersuaded by both arguments. As an initial matter, the Benchbook does not purport to be a statement of law that binds Immigration Judges. See EOIR Immigration Judge Benchbook, Introduction: Using the Benchbook, available at https://www.justice.gov/eoir/immigration-judgebenchbook. Moreover, even if the ability to pay is a discretionary factor Immigration Judges may consider when determining bond under the Benchbook or Guerra, this is irrelevant to Plaintiffs’ contention that both the ability to pay and alternatives to detention must be considered in bond determinations. Lastly, Defendants cite no authority supporting the proposition that immigration officials look at an individual’s current financial circumstances when considering their “employment history” under Guerra.

Page 15 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 16 of 41 Page ID #:1519

not be subject to review, claims that the discretionary process itself was constitutionally flawed are cognizable in federal court on habeas . . . .” Singh, 638 F.3d at 1202 (internal citation and quotation marks omitted).
Like Section 1226(e), 8 U.S.C. § 1252(a)(2)(B) contains similar restrictions on judicial review. The statute provides as follows:
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review--
(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or
(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.
8 U.S.C. §§ 1252(a)(2)(B)(i)-(ii). “Like § 1226(e), § 1252(a)(2)(B)(ii) restricts jurisdiction only with respect to the executive’s exercise of discretion” and “does not limit habeas jurisdiction over questions of law.” Singh, 638 F.3d at 1202.
b. The Parties’ Contentions
Defendants argue the Court lacks jurisdiction over Plaintiffs’ claims under both 8 U.S.C. § 1226(e) and 8 U.S.C. § 1252(a)(2)(B). (MTD at 19-21.) Defendants contend “[t]his Court has no jurisdiction to consider Plaintiffs’ claims concerning the factors an Immigration Judge may consider in setting a bond, because the INA specifically bars judicial review of an Immigration Judge’s bond determination” under both of these statutory provisions. (Id. at 19.) In support, Defendants cite the Ninth Circuit’s decision in Prieto-Romero. (Id. at 20.) According to Defendants, Prieto-Romero held that “an Immigration Judge’s decision to set a particular bond amount is not subject to judicial review.” (Id.)
Plaintiffs respond that neither statutory provision bars judicial review of their claims. (MTD Opp. at 7-9.) Plaintiffs argue the Ninth Circuit has recognized that neither statute applies to statutory and constitutional claims like those brought by Plaintiffs. (Id.) Moreover, Plaintiffs argue Prieto-Romero is distinguishable from this action because the claimant in Prieto-Romero challenged an Immigration Judge’s discretionary decision to set a particular bond amount and did not allege any legal or constitutional error. (Id. at 8.)

Page 16 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 17 of 41 Page ID #:1520

c. Analysis
The Court rejects Defendants’ jurisdictional arguments. The Ninth Circuit has established that both constitutional claims and claims raising questions of law fall within the Court’s habeas jurisdiction under 28 U.S.C. § 2241, despite the limiting language of 8 U.S.C. § 1226(e) or 8 U.S.C. § 1252(a)(2)(B). See Singh, 638 F.3d at 1202. In particular, the Ninth Circuit has held that federal courts have jurisdiction over habeas claims that “the [Attorney General’s] discretionary process itself was constitutionally flawed.” Id. Here, Plaintiffs seek habeas relief based on claims that the process used by immigration officials to set initial bond amounts is constitutionally and statutorily flawed because immigration officials do not consider, among other things, either the detainee’s ability to pay or alternatives to detention. Unlike the claimant in Prieto-Romero, Plaintiffs do not directly contest the initial bond amount imposed in their cases, but rather challenge the legality of the process by which their bond amount was set. These claims fall squarely under the Court’s habeas jurisdiction. See Singh, 638 F.3d at 1202; Leonardo, 646 F.3d at 1159 (affirming dismissal of due process challenge to bond determination for failure to exhaust administrative remedies, but holding that the Court had jurisdiction over this claim).
Accordingly, the Court DENIES Defendants’ Motion to Dismiss insofar as it seeks dismissal of this action for lack of jurisdiction under 8 U.S.C. § 1226(e) and 8 U.S.C. § 1252(a)(2)(B).
3. Article III Standing and Mootness
Defendants argue that: (1) Matias lacks Article III standing to assert his claims for injunctive relief because he was released from ICE custody on June 7, 2016; and (2) Hernandez lacks Article III standing to assert her claims for injunctive relief because she was released from custody on September 9, 2016. (Defs. Supp. Brief at 2-4, 7-8; Doc. No. 78.) To establish Article III standing, a plaintiff must demonstrate that: (1) he suffered an injury in fact that is concrete, particularized, and actual or imminent (not conjectural or hypothetical); (2) the injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be redressed by a favorable court decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). A plaintiff’s standing is assessed as of the time an action was initiated and is unaffected by subsequent developments. See D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1036 (9th Cir. 2008). Hence, Matias’s release from custody on June 7, 2016 – several months after this action was filed on April 6, 2016 – has no impact on his standing to seek injunctive relief. Similarly, Hernandez’s release on September 9, 2016 also has no impact on her standing to seek injunctive relief.
Defendants’ arguments are more properly raised under the mootness doctrine. Mootness is “the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of litigation (standing) must continue throughout its existence (mootness).” United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980) (internal quotation marks omitted). A claim becomes moot when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome. Haro v. Sebelius, 747 F.3d 1099, 1110 (9th Cir. 2014) (citation omitted). There is an exception to the mootness doctrine for legal violations

Page 17 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 18 of 41 Page ID #:1521

“capable of repetition, yet evading review.” See Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975). Based on this exception, the Ninth Circuit has held that plaintiffs with mooted individual claims can maintain claims for injunctive relief where they “are challenging an ongoing government policy.” See United States v. Howard, 480 F.3d 1005, 1010 (9th Cir. 2007). In particular, this mootness exception “applies to ongoing policies affecting pretrial detainees, because pretrial detention usually will be too brief for the challenged policy to be reviewed before becoming moot.” Los Angeles Unified Sch. Dist. v. Garcia, 669 F.3d 956, 958 n.1 (9th Cir. 2012), certified question answered, 58 Cal. 4th 175 (2013).
Moreover, where a plaintiff’s claim becomes moot while he seeks to certify a class, his action will not be rendered moot if his claims are “inherently transitory” (such that the trial court could not have ruled on the motion for class certification before his or her claim expired), as similarly-situated class members would have the same complaint. See Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1090-91 (9th Cir. 2011) (describing how this “relation back” doctrine applies in class actions). The theory behind this rule is that such claims are “capable of repetition, yet evading review.” See id.
Here, to the extent Defendants argue Plaintiffs’ claims are moot, the Court rejects this argument and concludes Plaintiffs may continue to assert their claims on behalf of themselves and on behalf of the putative class. First, Plaintiffs may continue to assert their claims on behalf of themselves because they challenge an “ongoing government policy” and the issues they raise are “capable of repetition, yet evading review.” See Howard, 480 F.3d at 1010; see also Gerstein, 420 U.S. at 110 n.11. Second, because their claims are “transitory” and may “evade review,” Plaintiffs may continue to assert them on behalf of the putative class even after their release from custody. See Preap v. Johnson, No. 14-16326, 2016 WL 4136983, at *3 n.6 (9th Cir. Aug. 4, 2016) (holding claims of named plaintiffs on behalf of putative class of immigration detainees were not mooted by the named plaintiffs’ release from custody and termination of removal proceedings because the claims are “transitory in nature and may otherwise evade review”).
Accordingly, the Court DENIES Defendants’ Motion to Dismiss insofar as it seeks dismissal of Plaintiffs’ claims for mootness or lack of standing.
IV. PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
A. Legal Standard
Federal Rule of Civil Procedure 23 (“Rule 23”) governs the litigation of class actions. A party seeking class certification must demonstrate the following prerequisites: “(1) numerosity of plaintiffs; (2) common questions of law or fact predominate; (3) the named plaintiff's claims and defenses are typical; and (4) the named plaintiff can adequately protect the interests of the class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (citing Fed. R. Civ. P. 23(a)). The party may not rest on mere allegations; it must provide facts to satisfy those requirements. See Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1309 (9th Cir. 1977) (citing Gillibeau v. Richmond, 417 F.2d 426, 432 (9th Cir. 1969)). Although not mentioned in Rule

Page 18 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 19 of 41 Page ID #:1522

23(a), the party seeking certification must also demonstrate that the class is ascertainable. See Keegan v. Am. Honda Motor Co., Inc., 284 F.R.D. 504, 521 (C.D. Cal. 2012).
After satisfying the five prerequisites of numerosity, commonality, typicality, adequacy, and ascertainability, a party must also demonstrate one of the following: (a) a risk that separate actions would create incompatible standards of conduct for the defendant or prejudice individual class members not parties to the action; (b) the defendant has treated the members of the class as a class, making appropriate injunctive or declaratory relief with respect to the class as a whole; or (c) common questions of law or fact predominate over questions affecting individual members and that a class action is a superior method for fairly and efficiently adjudicating the action. See Fed. R. Civ. P. 23(b)(1) to (3).
A trial court has broad discretion regarding whether to grant a motion for class certification. See Bateman v. Am. Multi-Cinema, Inc., 623 F.3d 708, 712 (9th Cir. 2010). However, a party seeking class certification must affirmatively demonstrate compliance with Rule 23—that is, the party must be prepared to prove that there are in fact sufficiently numerous parties and common questions of law or fact. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). A district court must conduct a “rigorous analysis” that frequently “will entail some overlap with the merits of the plaintiff’s underlying claim.” Id. Classes of aliens seeking habeas relief for their prolonged detentions have been certified in this Circuit. See Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2009).
Plaintiffs request that the Court certify a class encompassing “[a]ll individuals who are or will be detained pursuant to 8 U.S.C. § 1226(a) on a bond set by an U.S. Immigration and Customs Enforcement officer or an Immigration Judge in the Central District of California” (“Proposed Class”). (Class Cert. Mot. at 8-9.) Plaintiffs also request that they be appointed Class Representatives and that the American Civil Liberties Union (“ACLU”) of Southern California, ACLU Immigrants’ Rights Project, and Skadden, Arps, Slate, Meagher & Flom LLP be named Class Counsel. (Id. at 3 n.2.)
B. Discussion
1. Ascertainability
“In addition to the explicit requirements of Rule 23, an implied prerequisite to class certification is that the class must be sufficiently definite; the party seeking certification must demonstrate that an identifiable and ascertainable class exists.” Xavier v. Philip Morris USA Inc., 787 F. Supp. 2d 1075, 1089 (N.D. Cal. 2011); see also Thomas & Thomas Rodmakers, Inc. v. Newport Adhesives & Composites, Inc., 209 F.R.D. 159, 163 (C.D. Cal. 2002) (“Once an ascertainable and identifiable class has been defined, plaintiffs must show that they meet the four requirements of Rule 23(a), and the two requirements of Rule 23(b)(3).”). “Courts have held that the class must be adequately defined and clearly ascertainable before a class action may proceed.” Schwartz v. Upper Deck Co., 183 F.R.D. 672, 679-80 (S.D. Cal. 1999). A class is ascertainable if it is “administratively feasible for the court to determine whether a particular individual is a member” using objective criteria. Keegan, 284 F.R.D. at 521 (citation omitted).

Page 19 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 20 of 41 Page ID #:1523

The Court also notes that “[a] lack of ascertainability alone will generally not scuttle class certification.” Red v. Kraft Foods, No. CV 10-1028-GW (AGRx), 2012 WL 8019257, at *6 (C.D. Cal. Apr. 12 , 2012).17
Plaintiffs argue the Proposed Class is ascertainable because membership is based on objective criteria – namely, whether individuals are detained pursuant to 8 U.S.C. § 1226(a) and whether a bond for those individuals has been set by an Immigration Judge or ICE officer in this District. (Class Cert. Mot. at 18-19.) Plaintiffs argue membership within the Proposed Class can be ascertained using records within Defendants’ control. (Id.) In support, Plaintiffs cite data received from ICE on December 15, 2015 establishing the number of individuals detained pursuant to 8 U.S.C. § 1226(a) in the Los Angeles Area of Responsibility. (Tan Decl., Ex. B.) Defendants do not contest the ascertainability of the Proposed Class.
The Court finds the Proposed Class is sufficiently ascertainable. As Plaintiffs note, the Proposed Class can be ascertained using objective criteria and identified through a search of Defendants’ records concerning individuals in ICE custody. The Court therefore concludes the Proposed Class is ascertainable.
2. Rule 23(a) Requirements
a. Numerosity
Rule 23(a)(1) requires the class to be so numerous that joinder of individual class members is impracticable. See Fed. R. Civ. P. 23(a)(1). Additionally, there is no particular number cut-off, as the specific facts of each case may be examined. Ballard v. Equifax Check Servs., Inc., 186 F.R.D. 589, 594 (E.D. Cal. 1999). Courts have not required evidence of exact class size or the identities of class members to satisfy the requirements of Rule 23(a)(1). See Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993).
Here, Plaintiffs argue the Proposed Class is sufficiently numerous to warrant class treatment. (Class Cert. Mot. at 10-12.) In support, Plaintiffs cite data received from ICE on December 15, 2015, showing that as of October 2, 2015, there were at least 119 individuals detained in this District pursuant to 8 U.S.C. § 1226(a) for whom bond had been determined and who had not posted bond. (Tan Decl. ¶ 14, Ex. B.) Moreover, Plaintiffs note that even if the exact number of detainees currently in the Proposed Class cannot be determined with precision, the Central District contains four immigration detention centers with a collective capacity to hold
17 Courts have held that ascertainability may not be required with respect to a class seeking injunctive relief. See Dunakin v. Quigley, 99 F. Supp. 3d 1297, 1326 (W.D. Wash. 2015) (“Although the Ninth Circuit has not ruled on this issue, several other circuit courts have held that, due to the unique characteristics of a Rule 23(b)(2) class, it is improper to require ascertainability for a Rule 23(b)(2) class.”), reconsideration denied, No. C14-0567JLR, 2015 WL 4076789 (W.D. Wash. July 1, 2015). However, the Court need not decide whether or not ascertainability is required here because the Proposed Class is ascertainable.

Page 20 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 21 of 41 Page ID #:1524

3,000 individuals. (Class Cert. Mot. at 11 (citing Tan Dec. ¶¶ 18-20).) Plaintiffs contend that the sheer number of individuals potentially in detention makes it likely that a sizeable number of detainees are likely to be Proposed Class members. (Id.) Defendants do not contest the numerosity of the Proposed Class.
The Court is convinced by both the December 2015 ICE data and the capacity of detention centers in this District that the Proposed Class is sufficiently numerous to warrant class treatment. Accordingly, the Court finds Plaintiffs have presented sufficient evidence to satisfy the numerosity requirement.
b. Typicality
The Court next turns to the typicality element of Rule 23(a). “The purpose of the typicality requirement is to assure that the interest of the named representative aligns with the interests of the class.” Wolin v. Jaguar Land Rover North Am., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010). “The test of typicality ‘is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.’” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 984 (9th Cir. 2011) (quoting Hanon, 976 F.2d at 508). Thus typicality is generally satisfied if the plaintiff’s claims are “reasonably co-extensive with those of absent class members; they need not be substantially identical.” Hanlon, 150 F.3d at 1020. Moreover, satisfying the typicality prong requires, in the least, that “a class representative must be part of the class.” General Telephone Co. of Sw. v. Falcon, 457 U.S. 147, 156 (1982).

i.

The Parties’ Contentions

Plaintiffs argue the typicality requirement is satisfied here because Hernandez and Matias have been subjected to the same alleged injury as all of the Proposed Class members: namely, immigration officials’ failure to consider financial ability to pay, alternatives to a full cash bond, and alternative conditions of supervision during initial bond determinations pursuant to Section 1226(a). (Class Cert. Mot. at 15-16.)

Defendants argue Plaintiffs’ claims are not typical of the Proposed Class members’ claims because the Immigration Judges in Plaintiffs’ cases considered their ability to pay when setting bond. (Class Cert. Mot. Opp. at 15-19.) Defendants note that Judge Burke claimed during an April 13, 2016 hearing with Hernandez that he had considered her ability to pay when issuing his March 17, 2016 initial bond determination. (Id. (citing Defs., Ex. 6 at 33-34).) In addition, Defendants note Judge Munoz stated during an August 2014 bond hearing that Matias’s inability to pay his bond was “not significant enough” to revise Matias’s original bond determination. (Id. (citing Defs., Ex. 12 at 2).) Consequently, Defendants argue Plaintiffs fail to establish they “possess the same injury and suffer[ed] the same injury” as members of the Proposed Class. (Id. at 17-18 (internal citation and quotation marks omitted).)

Page 21 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 22 of 41 Page ID #:1525

Plaintiffs respond that neither of the statements cited by Defendants show Immigration Judges considered Plaintiffs’ ability to pay when determining their bond. (Class Cert. Mot. Reply at 5-6.) First, Plaintiffs argue “there is no record to support” Judge Burke’s retrospective claim on April 13, 2016 that he took Hernandez’s ability to pay into consideration in his March 17, 2016 bond decision. (Id. at 5.) Second, Plaintiffs argue Judge Munoz’s August 2014 statement, when read in context, actually meant to convey that Matias’s inability to pay his bond was not a “changed condition” that would warrant a new bond determination. (Pl. Supp. Brief at 9 n.3.) Rather than taking Matias’s financial circumstances into account, Plaintiffs argue, Judge Munoz only meant to say that Matias’s inability to pay his bond did not warrant a new bond determination pursuant to 8 C.F.R. § 1003.19(e). (Id.)
ii. Analysis
The Court concludes Plaintiffs have satisfied Rule 23(a)’s typicality requirement. The record of Plaintiffs’ bond hearings demonstrates that immigration officials failed to consider Plaintiffs’ financial ability to pay, alternatives to a full cash bond, and alternative conditions of supervision when setting their bonds. Moreover, the Court is unconvinced by Defendants’ arguments to the contrary. First, as Plaintiffs argue, Judge Burke’s March 17, 2016 written bond decision did not mention Hernandez’s ability to pay when setting bond and instead discussed other factors, such as Hernandez’s purported criminal gang affiliation and her limited prospects for relief from removal. (See Hernandez Decl., Ex A at 9.) In addition, there is no evidence in the record supporting Judge Burke’s subsequent claim on April 13, 2016 that he had considered Hernandez’s ability to pay when determining her bond.
Second, the Court agrees with Plaintiffs that Judge Munoz’s brief reference to Matias’s financial circumstances at his August 2014 bond hearing were meant to convey that Matias’s inability to pay bond did not constitute a change in circumstance significant enough to warrant a new bond determination. This interpretation is supported by the record, which reflects that up to the time this statement was made, Judge Munoz repeatedly asked Matias if his circumstances had changed since his original bond determination. (Defs., Ex. 12 at 2.) When Matias raised the fact that he was unable to afford the original bond, Judge Munoz stated Matias’s “inability to post the bond [is] not significant enough for me to change” the original bond determination. The Court therefore rejects Defendants’ argument based on Judge Munoz’s statement and finds Plaintiffs have shown they suffered the same alleged injury as members of the Proposed Class. Accordingly, the Court concludes Plaintiffs have met the typicality requirement.
c. Commonality
Courts have construed Rule 23(a)(2)’s commonality requirement permissively. See Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir. 2003). “All questions of fact and law need not be common to satisfy the rule. The 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.” Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1165 (9th Cir. 2014) (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998)). Nevertheless, “[c]ommonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury,’”

Page 22 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 23 of 41 Page ID #:1526

which “does not mean merely that they have all suffered a violation of the same provision of law.” Dukes, 131 S. Ct. at 2551 (citation omitted). The “claims must depend on a common contention” and “[t]hat common contention . . . must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. The common question or questions must also be “apt to drive the resolution of the litigation,” which turns on the nature of the underlying legal claims in the case. Jimenez, 765 F.3d at 1165 (quoting Abdullah v. U.S. Sec. Associates, Inc., 731 F.3d 952, 962 (9th Cir. 2013)). Thus commonality requires an understanding of the nature of the underlying claims. Id. (citing Parsons v. Ryan, 754 F.3d 657, 676 (9th Cir. 2014)).
Plaintiffs argue their claims raise the following five factual questions common to all Proposed Class members:
 Whether, as a general policy or practice, the Government does not require ICE officers and Immigration Judges to consider financial ability to pay when setting initial bond amounts pursuant to § 1226(a).
 Whether, as a general policy or practice, the Government requires immigration detainees to post in cash the full amount of their bonds to secure their release on bond.
 Whether, as a general policy or practice, ICE officers and Immigration Judges are not required to consider alternative forms of bonds to a full-cash bond, such as a deposit bond, or a property or collateral bond.
 Whether, as a general policy or practice, ICE officers and Immigration Judges are not required to consider alternative conditions of supervision.
 Whether, as general policy or practice, Immigration Judges do not recognize a person’s financial inability to post bond, despite having made good faith efforts to do so, as a “changed circumstance” that entitles the person to a new bond hearing under 8 C.F.R. § 1003.19(e).
(Class Cert. Mot. at 17.) Plaintiffs also note that whether these policies and practices violate Section 1226(a), the Fifth Amendment, and the Eighth Amendment are legal questions common to all Proposed Class members. (Id. at 17-18.) Hence, Plaintiffs contend that if these policies and practices are found illegal, Proposed Class members will be entitled to the same relief: namely, “custody determination procedures that require consideration of financial ability to pay, alternative forms of bond, and alternative conditions of supervision, and a new bond hearing in the appropriate circumstances.” (Id. at 18.) Given these common legal and factual questions, Plaintiffs contend they have satisfied the commonality requirement.
The Court concludes Plaintiffs have satisfied Rule 23(a)(2)’s commonality requirement because they have shown all Proposed Class members have been subjected to the same bond

Page 23 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 24 of 41 Page ID #:1527

determination policies and practices by Defendants. Consequently, the Proposed Class members’ claims that these policies and practices are illegal could be disposed of in a “single stroke.” 18 See Dukes, 131 S. Ct. at 2551 (citation omitted). Accordingly, the Court concludes the commonality requirement is satisfied.
d. Adequacy of Representation
Under Rule 23(a)(4), the named plaintiff must be deemed capable of adequately representing the interests of the entire class, including absent class members. See Fed. R. Civ. P. 23(a)(4) (requiring “representative parties [who] will fairly and adequately protect the interests of the class”). The adequacy inquiry turns on: (1) whether the named plaintiff and class counsel have any conflicts of interest with other class members, and (2) whether the representative plaintiff and class counsel can vigorously prosecute the action on behalf of the class. See Ellis, 657 F.3d at 985. Furthermore, pursuant to Rule 23(g), before appointing class counsel, the Court “must consider” the following matters:
(i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class
18 Defendants argue Plaintiffs’ “proposed class cannot be certified because it is overly broad.” (Class Cert. Mot. at 18.) Defendants claim “[t]he burden is on Plaintiffs to identify a class whose ability to pay has not been considered by an Immigration Judge during their bond determinations.” (Id.) Defendants argue Plaintiffs have “failed to meet their burden” because “potential class members would be impossible to identify without extensive and individualized fact-finding or mini-trials.” (Id.)
It is unclear whether Defendants present this counter-argument with respect to the commonality requirement for class certification. In any case, the Court rejects this argument. Here, Plaintiffs have presented evidence in the form of declarations and unpublished BIA decisions showing Immigration Judges and ICE officials in this District do not consider individuals’ ability to pay during initial bond determinations under 8 U.S.C. § 1226(a). See Esterle Decl. ¶¶ 11-12; Inlender Decl. ¶¶ 10-11; see also In Re: Mario Sandoval-Gomez, File: A092 563 965 - IMP, 2008 WL 5477710, at *1 (DCBABR Dec. 15, 2008) (rejecting claim that bond amount was excessive because “an alien’s ability to pay the bond amount is not a relevant bond determination factor”); In Re: Nelson Salvador Castillo-Cajura, File: A089 853 733 - TAC, 2009 WL 3063742, at *1 (DCBABR Sept. 10, 2009) (same). Defendants have presented no evidence in rebuttal. For purposes of class certification, Plaintiffs’ evidence suffices to establish that each Proposed Class member did not have his or her ability to pay considered during their bond determinations and consequently suffered the same alleged legal violation.

Page 24 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 25 of 41 Page ID #:1528

Fed. R. Civ. P. 23(g)(1)(A). The Court “may” also consider “any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(1)(B).
Plaintiffs argue that they and their counsel would adequately represent the interests of Proposed Class members. (Class Cert. Mot. at 20-21.) In support, Plaintiffs present declarations establishing their counsel have sufficient resources to litigate this matter and extensive experience in immigration, habeas corpus, and class action litigation. (Id. (citing Sloan Decl. ¶¶ 3-8; Kaufman Decl. ¶¶ 3-25).) Moreover, Plaintiffs submit their own declarations, averring they are prepared to represent Proposed Class members and seek to help people who are detained and do not have enough money to pay their bonds. (Id. (citing Hernandez Decl. ¶¶ 12-13; Matias Decl. ¶¶ 13-14).)
Defendants argue Plaintiffs would not adequately represent the interests of Proposed Class members because they have both been released from custody.19 (Defs. Supp. Brief. at 4, 9; Class Cert. Mot. at 19.) Defendants argue Plaintiffs’ interests diverge from those of the Proposed Class and that Plaintiffs would consequently not adequately represent its interests. (Id.)
The Court concludes Plaintiffs and their counsel would adequately represent the interests of the Proposed Class. The record does not suggest Plaintiffs’ counsel have any conflicts of interests with members of the Proposed Class. Moreover, the declarations by Plaintiffs’ counsel clearly demonstrate they have sufficient resources, experience, and knowledge to litigate this matter on behalf of the Proposed Class, and have thoroughly investigated potential claims in this action. (See Sloan Decl. ¶¶ 3-8; Kaufman Decl. ¶¶ 3-25.) Lastly, the Court rejects Defendants’ arguments that Plaintiffs’ release would somehow render them unfit to represent the Proposed Class. Both Plaintiffs aver they seek to act in the best interests of the Proposed Class and Defendants do not identify any authority showing their release would render them unable to prosecute claims on behalf of the Proposed Class. Such a notion would be inconsistent with Ninth Circuit decisions permitting immigration detainees who have been released from custody to nonetheless assert claims on behalf of a class of detainees. See Preap, No. 14-16326, 2016 WL 4136983, at *3 n.6 (9th Cir. Aug. 4, 2016). Accordingly, the Court finds Plaintiffs and Plaintiffs’ counsel would adequately represent the Proposed Class.
3. Rule 23(b) Requirements
Plaintiffs seeks to certify the Proposed Class under both Rule 23(b)(1) and Rule 23(b)(2). (Class Cert. Mot. at 19-25.) The Court addresses the requirements for both provisions below.

19 Defendants also repeat the arguments they raised with respect to the typicality requirement: namely, that Plaintiffs had their ability to pay considered at their bond hearings and are therefore differently situated from Proposed Class members. (Class Cert. Mot. Opp. at 1819.) The Court again rejects these arguments.

Page 25 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 26 of 41 Page ID #:1529

a. Rule 23(b)(2)
Plaintiffs seek certification under Rule 23(b)(2), which permits certification of a class seeking declaratory or injunctive relief where “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.” (Class Cert. Mot. at 19-22.) In the Ninth Circuit, “[i]t is sufficient to meet the requirements of Rule 23(b)(2) [when] class members complain of a pattern or practice that is generally applicable to the class as a whole.” Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010) (internal citation and quotation marks omitted) (finding certification under Rule 23(b)(2) proper where “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”). This action concerns various policies and practices applicable to the entire Proposed Class that, if unlawful, subjects Proposed Class members to improperly derived bond determinations. The Rule’s requirements are therefore satisfied here. See id.; Parsons v. Ryan, 754 F.3d 657, 689 (9th Cir. 2014) (Rule 23(b)(2) satisfied where state department of corrections established policies and practices that placed “every inmate in custody in peril” and all class members sought essentially the same injunctive relief) The Court therefore concludes Rule 23(b)(2)’s requirements are met.
b. Rule 23(b)(1)(A)
Plaintiffs also seek certification under Rule 23(b)(1)(A), which permits certification if separate actions by or against individual class members would risk “inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class.” (Class Cert. Mot. at 22-24.) A “core example” of an action under Rule 23(b)(1)(A) is a “situation in which many individuals, all challenging a single government policy, bring separate suits for injunctive relief.” Newberg on Class Actions § 4:11 (5th ed.). Certification is appropriate under Rule 23(b)(1)(A) because if each member of the proposed class litigated their claims individually there would be a risk that each individual case would impose a different standard on the defendants. See Ashker v. Governor of State of California, No. C 09-5796 CW, 2014 WL 2465191, at *7 (N.D. Cal. June 2, 2014) (certifying class of inmates claiming prison policy violated the Eighth Amendment pursuant to Rule 23(b)(1)(A)). The Rule’s requirements are easily satisfied here because if each Proposed Class member challenged the policies and practices at issue individually, there is a risk of inconsistent adjudications that would subject Defendants to different rulings on the validity of these policies and practices. See id. The Court therefore concludes Rule 23(b)(1)(A)’s requirements are met.
c. Rule 23(b)(1)(B)
Plaintiffs additionally seek certification under Rule 23(b)(1)(B), which permits certification if separate actions by or against individual class members would risk adjudications that “as a practical matter, would be dispositive of the interests” of nonparty class members “or would substantially impair or impede [nonparties’] ability to protect their interests.” (Class Cert. Mot. at 24-25.) Here, an adjudication on the merits of individual actions challenging the

Page 26 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 27 of 41 Page ID #:1530

policies and practices at issue would affect nonparty members of the Proposed Class because they are also subject to those policies or practices. See Gray v. Cty. of Riverside, No. EDCV 1300444-VAP, 2014 WL 5304915, at *38 (C.D. Cal. Sept. 2, 2014) (finding requirements of Rule 23(b)(1)(B) satisfied where the ability of future plaintiffs to challenge the practice at issue would be inhibited under stare decisis by unsuccessful individual actions challenging the practice). Hence, the Court concludes Rule 23(b)(1)(B)’s requirements have also been met.
Accordingly, the Court GRANTS Plaintiffs’ Motion for Class Certification, certifies the Proposed Class (hereinafter, the “Class”) pursuant to Federal Rules of Civil Procedure 23(b)(1)(A), 23(b)(1)(B), and 23(b)(2), appoints Plaintiffs as Class Representatives, and appoints the ACLU of Southern California, ACLU Immigrants’ Rights Project, and Skadden, Arps, Slate, Meagher & Flom LLP as Class Counsel.
V. PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
A. Legal Standard
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “A preliminary injunction is an extraordinary and drastic remedy; it is never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 690 (2008) (citations omitted). A preliminary injunction “should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Towery v. Brewer, 672 F.3d 650, 657 (9th Cir. 2012). The Ninth Circuit has adopted a “sliding scale” test for preliminary injunctions. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). Under this approach, the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another. Id. For example, “serious questions” as to the merits of a case, combined with a showing that the hardships tip sharply in the plaintiff’s favor, can support the issuance of an injunction, assuming the other two elements of the Winter test are also met. Id.
B. Discussion
Plaintiffs request that the Court issue a Class-wide preliminary injunction requiring ICE and the Executive Office of Immigration Review (“EOIR”), when setting, re-determining, and/or reviewing the terms of any person’s release under 8 U.S.C. § 1226(a) in this District, to: (a) consider the person’s financial ability to pay a bond; (b) not set bond at a greater amount than that needed to ensure the person’s appearance; and (c) consider whether the person may be released on alternative conditions of supervision,20 alone or in combination with a lower bond
20 Plaintiffs submit evidence showing possible alternative conditions of supervision could include Global Positioning System tracking, periodic in-person and telephonic reporting, and home visits. (Warren Decl., Ex. E at 121-24.)

Page 27 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 28 of 41 Page ID #:1531

amount, that are sufficient to mitigate flight risk.21 (Prelim. Inj. Mot. at 23; Dkt. No. 45-12 (Proposed Order).) Plaintiffs’ proposed preliminary injunction order requires Defendants to instruct all ICE officials and Immigration Judges in this District to consider such factors during initial bond determinations pursuant to 8 U.S.C. § 1226(a). (Dkt. No. 45-12 at 1-2.) The proposed order also requires the EOIR to “provide each class member currently detained in the District with a new custody redetermination hearing where the [Immigration Judge] decides whether the class member should be released on his or her own recognizance or released on a money bond and/or other conditions of supervision” based on the factors listed above within 45 days of the order’s issuance.22 (Id. at 2.)
The Court addresses the requirements for preliminary injunctive relief below.
1. Likelihood of Success on the Merits
Plaintiffs argue immigration officials’ failure to consider Class members’ financial circumstances and release on alternative conditions of supervision in initial bond determinations violates three constitutional guarantees: (1) the Due Process Clause of the Fifth Amendment; (2) the Equal Protection Guarantee of the Fifth Amendment; and (3) the Excessive Bail Clause of the Eighth Amendment. (Prelim. Inj. Mot. at 10-17.) In addition, Plaintiffs argue that under the canon of constitutional avoidance, Section 1226(a) “can and should be construed to require that immigration officials consider detainees’ financial circumstances and release on alternative conditions of supervision when making custody determinations, and set bond at no amount greater than necessary to ensure the person’s appearance.” (Id. at 17-19.) The Court looks to Plaintiffs’ likelihood of success on each of these four theories below.23
21 Plaintiffs do not seek preliminary injunctive relief with respect to their claims that immigration officials: (1) unlawfully require detainees to post in cash the full bond amount to be released, instead of permitting them to post a deposit, property, or other assets as collateral; and (2) unlawfully deny detainees a new bond hearing even if they make a good faith effort to pay the bail amount set for their release. (Prelim. Inj. Mot. at 2 n.2.)
22 The Court notes that the fact that Immigration Judges have presumably been holding Rodriguez hearings periodically for each Class member has no bearing on Plaintiffs’ request that each Class member be provided a new custody redetermination hearing. While Immigration Judges are required to consider alternative conditions of release when determining bond at Rodriguez hearings, there is no evidence in the record showing they are required to consider detainees’ ability to pay bond. In fact, Plaintiffs present evidence suggesting Immigration Judges routinely do not consider the ability to pay at Rodriguez hearings. (See Esterle Decl. ¶ 12; Inlender Decl. ¶ 11.) Hence, if immigration officials are legally required to consider both the ability to pay and alternative conditions of release when setting bond, a requirement that Immigration Judges take such factors into account during new custody redetermination hearings for each Class member is the appropriate remedy here.
23 Of Plaintiffs’ three constitutional theories, the Court finds Plaintiffs most likely to prevail on their argument under the Due Process Clause of the Fifth Amendment.

Page 28 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 29 of 41 Page ID #:1532

a. Due Process Challenge

i.

Applicable Law

The Due Process Clause of the Fifth Amendment provides that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. “Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.” Carey v. Piphus, 435 U.S. 247, 259 (1978). “The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in ‘property’ or ‘liberty.’” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999). Second, the court “examines whether the procedures attendant upon that deprivation were constitutionally sufficient.” Vasquez v. Rackauckas, 734 F.3d 1025, 1042 (9th Cir. 2013).

“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 quotations and citation omitted). “[T]he determination of what procedures satisfy due process in a given situation depends upon an analysis of the particular case in accordance with the three-part balancing test outlined in Mathews v. Eldridge . . . .” Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 983 (9th Cir. 1998) (internal citation, quotation marks, and alterations omitted). In Mathews, the Supreme Court stated:

[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors. First, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.

Mathews, 424 U.S. at 335.

“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.’” Singh v. Holder, 638 F.3d 1196, 1204 (9th Cir. 2011) (quoting Cooper v. Oklahoma, 517 U.S. 348, 363 (1996)). In particular, the U.S. Supreme Court has noted that “[f]reedom from imprisonment— from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Hence, in the immigration detention context, the U.S. Supreme Court has instructed that such detention must “bear[] a reasonable relation to the purpose for which the individual was committed.” Id. (internal citation, quotation marks, and alterations omitted).

Page 29 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 30 of 41 Page ID #:1533

As noted in Section II.A., the Ninth Circuit held in Rodriguez v. Robbins, 804 F.3d 1060, 1089 (9th Cir. 2015), that the Government must periodically conduct bond hearings for individuals detained under Section 1226(a) every six months “so that [they] may challenge their continued detention as the period of . . . confinement grows.” The Ninth Circuit’s holding in Rodriguez24 relied on a number of precedents dating back to Casas-Castrillon v. Dep’t. of Homeland Sec., 535 F.3d 942, 950 (9th Cir. 2008). In Casas, the Ninth Circuit noted that “prolonged detention [under Section 1226(a)] without adequate procedural protections would raise serious constitutional concerns” because “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.’” Casas-Castrillon, 535 F.3d at 950 (quoting Zadvydas, 533 U.S. at 690). Hence, in Casas the Ninth Circuit held that “[b]ecause the prolonged detention of an alien without an individualized determination of his dangerousness or flight risk would be ‘constitutionally doubtful,’ . . . § 1226(a) must be construed as requiring the Attorney General to provide the alien with such a hearing.” Id. at 951 (emphasis in original). The Ninth Circuit instructed that under Section 1226(a), an alien detained for a “prolonged period” of time “is entitled to release on bond unless the government establishes [at a bond hearing] that he is a flight risk or will be a danger to the community.” Id. (internal citation and quotation marks omitted).
In Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011), the Ninth Circuit clarified the procedural requirements for the bond hearings required by Casas. The Ninth Circuit 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 and for purposes of bond assessment, the Ninth Circuit instructed Immigration Judges to consider the factors set forth by the BIA 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 & n.5 (quoting Guerra, 24 I. & N. Dec. at 40).
Finally, in Rodriguez, the Ninth Circuit shed further light on the procedures required by Casas and Singh. The Ninth Circuit held that individuals detained under Section 1226(a) are “entitled to automatic bond hearings after six months of detention” and that the Government must periodically conduct such hearings every six months for individuals detained for twelve months or more. 804 F.3d at 1085, 1089. The rationale of the six-month requirement is straightforward: the Ninth Circuit found that detention under Section 1226(a) becomes “prolonged” after six months. Id. at 1077. Because “the risk of an erroneous deprivation of liberty [at the six-month mark] in the absence of a hearing before a neutral decisionmaker is substantial,” “the private interests at stake are profound,” and “the same constitutional
24 The Ninth Circuit has issued multiple opinions in the Rodriguez case over the past several years. The Court’s references to “Rodriguez” refer to the decision issued on October 28, 2015.

Page 30 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 31 of 41 Page ID #:1534

concerns arise when detention approaches another prolonged period,” the Ninth Circuit required bond hearings to be conducted at six-month intervals. Id. at 1074, 1077, 1089 (internal citation and quotation marks omitted). Citing Singh, the Ninth Circuit held that the Government has the burden of proof at these hearings of showing by clear and convincing evidence that an alien is a flight risk or a danger to the community. Id. at 1087. The Ninth Circuit also affirmed a permanent injunction requiring Immigration Judges to consider alternatives to detention when making bond determinations at these hearings. Id. at 1087-88.
None of the decisions discussed above directly address the issue presented by Plaintiffs: namely, whether due process requires immigration officials to consider detainees’ financial circumstances or alternative conditions of release during initial bond determinations. Plaintiffs ask the Court to look to various decisions governing the consideration of indigence in the criminal context for instruction as to this question. (Prelim. Inj. Mot. at 14-21.) The Court summarizes those decisions below.
The U.S. Supreme Court has held as a general matter that due process requires some consideration of indigency when courts decide whether to imprison defendants for failure to pay fines imposed during criminal sentencing. In Bearden v. Georgia, 461 U.S. 660, 672 (1983), the Supreme Court held that a state could not revoke probation and thereby incarcerate an indigent defendant based solely upon non-willful failure to pay a fine or restitution. If the failure to pay was willful, a state could resort to “imprisonment as a sanction to enforce collection.” Id. at 668. However, if the defendant was making a reasonable, good faith attempt to pay the fine or restitution and was unable to do so by reason of indigency, it would be “fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods of punishing the defendant are available.” Id. at 668-69. Hence, the Court held that before a court revokes a defendant’s probation for nonpayment, the court must inquire into the reason for the nonpayment. Id. at 672. “If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment.” Id. The Court noted that a sentencing court could only imprison probationers who made sufficient bona fide efforts to pay if it “determines that alternatives to imprisonment are not adequate in a particular situation to meet the State's interest in punishment and deterrence.” Id. In so holding, the Court noted that “due process and equal protection principles converge” in the context of individuals indebted by virtue of their criminal histories. Id. at 665. Although Bearden does not precisely address the question before this Court, it underscores courts’ duty to be mindful of indigency, alternatives to detention, and relevant state interests when considering whether to incarcerate an individual for failure to pay a monetary sum.
The Fifth Circuit discussed indigency in the specific context of bonds when assessing the constitutionality of Florida’s pretrial bail scheme in Pugh v. Rainwater. 572 F.2d 1053, 1055 (5th Cir. 1978) (en banc).25 The bail scheme allowed for six different types of pretrial release in non-

25 On October 1, 1981, the Fifth Circuit was divided into two circuits: the Eleventh and the “new Fifth.” Bonner v. Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc). Nonetheless, (continued . . . )

Page 31 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 32 of 41 Page ID #:1535

capital cases, of which cash bail was one option. Id. at 1055-56. While the Fifth Circuit ultimately rejected a constitutional challenge to the bail scheme, it discussed general constitutional principles governing the calculation of bail. The Fifth Circuit noted that “the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant.” Id. at 1057 (internal quotation marks omitted). The Fifth Circuit stated that “[a]ny [bail] requirement in excess of th[e] amount” that is “necessary to provide reasonable assurance of the accused’s presence at trial” would “be inherently punitive and run afoul of due process requirements.” Id. Moreover, “[t]he incarceration of those who cannot [pay bond], without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.” Id. Hence, the Fifth Circuit stated, a “master bond schedule” that automatically sets a particular bond amount for any given offense would be unconstitutional. Id. & n.6.
Citing both Pugh and Bearden, a number of federal district courts have held that state laws automatically setting a particular monetary bail amount for a person’s release from detention without individualized considerations of indigency violate the Due Process Clause of the Fourteenth Amendment. See, e.g., Rodriguez v. Providence Cmty. Corr., Inc., 155 F. Supp. 3d 758, 2015 WL 9239821 at *6-*9 & n.10 (M.D. Tenn. 2015), appeal dismissed (Mar. 15, 2016) (granting class-wide preliminarily injunction enjoining state policy requiring monetary payment for probationers to obtain release pending a revocation hearing “without an inquiry into the individual’s ability to pay the bond and whether alternative methods of ensuring attendance at revocation hearings would be adequate”); Jones v. The City of Clanton, No. 215CV34-MHT, 2015 WL 5387219, at *2 (M.D. Ala. Sept. 14, 2015) (holding that the “use of a secured bail schedule to detain a person after arrest, without an individualized hearing regarding the person’s indigence and the need for bail or alternatives to bail, violates the Due Process Clause of the Fourteenth Amendment”); Cooper v. City of Dothan, No. 1:15-CV-425-WKW, 2015 WL 10013003, at *1-*2 (M.D. Ala. June 18, 2015) (finding allegations that city’s post-arrest detention scheme featured preset and undifferentiated bond amounts for misdemeanor crimes warranted temporary restraining order); see also Williams v. Farrior, 626 F. Supp. 983, 985 (S.D. Miss. 1986) (“[I]t is clear that a bail system which allows only monetary bail and does not provide for any meaningful consideration of other possible alternatives for indigent pretrial detainees infringes on both equal protection and due process requirements.”).
The Government has itself argued elsewhere that several of these district court decisions were correctly decided. On August 18, 2016, the Government submitted an amicus curae brief to the Eleventh Circuit in connection with the appellate proceedings in Walker v. City of Calhoun, GA, No. 4:15–CV–0170–HLM, 2016 WL 361612 (N.D. Ga. Jan. 28, 2016). (See Supp. Kaufman Decl. II, Ex. B.) In Walker, a federal district court preliminarily enjoined a Georgia city from mandating payment of pre-fixed bail amounts for different offenses. See Walker, 2016 WL
( . . . continued) Pugh remains good law. In Bonner, the newly-created Eleventh Circuit adopted as binding precedent all of the decisions of the former Fifth Circuit issued prior to September 30, 1981. Id. at 1209.

Page 32 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 33 of 41 Page ID #:1536

361612, at *10-11, 14. In its amicus brief on appeal, the Government urged the Eleventh Circuit to “affirm the district court’s holding that a [state] bail scheme violates the Fourteenth Amendment if, without a court’s meaningful consideration of ability to pay and alternative methods of assuring appearance at trial, it results in the detention of indigent defendants pretrial.” (See Supp. Kaufman Decl. II, Ex. B at 32.) In support, the Government cited Pugh, Bearden, and a number of the aforementioned district court decisions. (Id. at 21-29.)
ii. The Parties’ Contentions
Plaintiffs contend they have established a substantial likelihood of success on the merits of their due process claim. (Prelim. Inj. Mot. at 10-13.) Plaintiffs argue “[t]he Due Process Clause requires that immigration detention be ‘reasonably relat[ed]’ to its purposes of preventing flight and preventing danger to the community, and be accompanied by adequate procedures to ensure those purposes are met.” (Id. (quoting Zadvydas, 533 U.S. at 690-91).) Plaintiffs contend that immigration officials’ failure to consider the financial circumstances of detainees and alternative conditions of release when making bond determinations results in the detention of individuals solely for their inability to pay bond. (Id.) Such detention, Plaintiffs argue, “is not ‘reasonably related’ to the government’s legitimate purposes.” (Id. at 11.) In support, Plaintiffs cite Bearden for the general proposition that “the Due Process Clause prohibits the detention of noncitizens merely because they lack sufficient financial means.” (Id.) In addition, Plaintiffs claim Pugh and several of the aforementioned district court decisions establish that bond schemes violate due process where they do not consider ability to pay and alternative conditions. (Id. at 12.)
Defendants briefly respond that “‘[w]hen the Government deals with deportable aliens, the Due Process Clause does not require it to employ the least burdensome means to accomplish its goal.’” (Prelim. Inj. Mot. Opp. at 20 (quoting Demore v. Kim, 538 U.S. 510, 528 (2003)).) Moreover, apparently seeking to distinguish Pugh and the aforementioned district court decisions from this matter, Defendants note that “[n]ot every potential loss of a civil liberty requires the full panoply of procedural guarantees that would be available to a criminal at a criminal trial.” (Id.) Lastly, Defendants maintain that “[g]ranting Plaintiffs’ motion would directly conflict with decades of Supreme Court precedent recognizing the Executive’s plenary authority in the realm of immigration policy.” (Id. at 14.)
iii. Analysis
The Court finds Plaintiffs have established a substantial likelihood of success on the merits of their due process claim. Although specific to instances of prolonged detention, the Ninth Circuit’s decisions in Casas, Singh, and Rodriguez arise from the general principle of due process that detention must “bear[] a reasonable relation to the purpose for which the individual was committed.” Zadvydas, 533 U.S. at 690 (internal citation, quotation marks, and alterations omitted). In each of these decisions, the Ninth Circuit established various procedural safeguards governing bond determination hearings “to ensure that the government’s asserted justification for physical confinement outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” See Singh, 638 F.3d at 1203 (internal citation and quotation marks omitted). The Ninth Circuit considered bond determination hearings vital under due process

Page 33 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 34 of 41 Page ID #:1537

norms because they “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” – that is, to “establish that [the government] has a legitimate interest reasonably related to continued detention.” Rodriguez, 804 F.3d at 1077 (internal citation and quotation marks omitted). The underlying rationale of Casas, Singh, and Rodriguez – namely, the need for procedures to ensure detention under Section 1226(a) is justified by a legitimate governmental interest that outweighs individuals’ personal liberty interest – is instructive here.

The Court also finds Bearden, Pugh, and the aforementioned district court decisions in the bail context relevant. Both Bearden and Pugh addressed situations where an individual’s inability to pay a set fine or bail amount would result in the person’s detention. Both Bearden and Pugh interpreted due process to require courts to consider and balance both the relevant state interest and the individual’s indigency when setting such a fine or bail amount. In Bearden, the Supreme Court instructed sentencing courts to consider a probationer’s ability to pay, alternatives to imprisonment, and “the State’s interest in punishment and deterrence,” prior to revoking probation and imprisoning the probationer for failure to pay fines or restitution. Bearden, 461 U.S. at 672. “To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine.” Id. at 672-73. Similarly, in Pugh, the Fifth Circuit instructed that bail determinations “must be based upon standards relevant to the purpose of assuring the presence of [each individual] defendant” – assurance of the defendant’s presence being the relevant state interest – and must take indigency and alternative conditions of release into account. Pugh, 572 F.2d at 1057 (internal quotation marks omitted). In particular, the Fifth Circuit found that a “master bond schedule” that did not take such factors into account would not stand constitutional muster because it would not tailor bail to the amount necessary to assure the state’s interest in the presence of each individual in subsequent proceedings. Id. As noted previously, several federal district courts have adopted Pugh’s reasoning when examining state bail schemes and the Government itself has endorsed such reasoning. In short, Bearden, Pugh, and these district court decisions stand for the general proposition that when a person’s freedom from governmental detention is conditioned on the payment of a monetary sum, courts must consider the person’s financial situation and alternative conditions of release when calculating what the person must pay to satisfy a particular state interest. The Court also notes that all of these decisions are consistent with the Supreme Court’s instruction in Mathews v. Eldridge that courts assessing procedural due process claims must look to the individual interest, the state interest, and whether the government applies procedures that carry a risk of erroneous deprivation of the individual interest. See Mathews, 424 U.S. at 335.

Together, both of these lines of cases and the Supreme Court’s three-factor test in Mathews v. Eldridge establish that immigration officials setting a bond amount under Section 1226(a) must look to detainees’ financial situation and alternatives to detention to satisfy the Due Process Clause. First, the private interest affected by detention under Section 1226(a) is of course individuals’ freedom from imprisonment, which “lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas, 533 U.S. at 690. Second, the “Government’s interest” with respect to detention under Section 1226(a) is the appearance of detainees at removal proceedings and protection of the community from such detainees, if needed. Rodriguez, 804 F.3d at 1077; Mathews, 424 U.S. at 335. Third, the Court finds immigration

Page 34 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 35 of 41 Page ID #:1538
officials’ failure to consider an individual’s ability to pay and alternatives to detention when setting bond under Section 1226(a) renders the bond determination process prone to “the risk of erroneous deprivation” of detainees’ liberty interest.26 See Mathews, 424 U.S. at 335. Casas, Singh, and Rodriguez instruct that due process requires procedures that ensure detention under Section 1226(a) is justified by a legitimate governmental interest that outweighs individuals’ personal liberty interest. The bond determination practices challenged here do not meet this bar. Much like the “master bond schedule” described in Pugh, a bond amount determined without individualized consideration of a person’s financial circumstances and alternative conditions of release is not sufficiently tailored to assure the government’s interest in the person’s presence in future proceedings. See Pugh, 572 F.2d at 1057. Rather, setting a bond amount without considering individuals’ ability to pay it or alternative conditions of release merely results in the detention of persons who cannot afford to pay the bond amount, even when a more affordable bond amount or alternative conditions of release might guarantee their appearance in future proceedings. Bearden and Pugh hold in analogous contexts that procedures that fail to account for such factors do not adequately balance state interests against an individual’s interest in freedom from imprisonment. Consequently, the Court finds Defendants’ bond determination practices fail to adequately balance state and individual interests when setting bond amounts and do not satisfy due process requirements.27
Furthermore, the Court rejects Defendants’ argument that the government is not required “to employ the least burdensome means” of securing immigration detainees.28 The Ninth Circuit rejected an identical argument by the Rodriguez defendants opposing a request for an injunction requiring Immigration Judges to consider alternatives to detention when determining whether to set bond during Rodriguez hearings. 804 F.3d at 1087–88. The Ninth Circuit rejected this argument, reasoning “the injunction does not require that [Immigration Judges] apply the least restrictive means of supervision; it merely directs them to ‘consider’ restrictions short of detention.” Rodriguez, 804 F.3d at 1087–88. The Court finds similar reasoning applicable here. Plaintiffs do not request that Defendants be required to use the least burdensome means of securing Class members. Plaintiffs only request that immigration officials
26 This “risk of erroneous deprivation” is particularly acute because detainees for whom bond is set have already “demonstrate[d] to the satisfaction of the [immigration] officer that [their] release would not pose a danger to property or persons, and that [they are] likely to appear for any future proceedings.” 8 C.F.R. § 1236.1(c)(8).
27 Defendants do not present any contentions or evidence regarding “the fiscal and administrative burdens” of considering the ability to pay and alternatives to detention when setting bond. See Mathews, 424 U.S. at 335.
28 In addition, to the extent Defendants argue Bearden and Pugh are inapplicable here because they are from the criminal context, the Court rejects this argument. Although each of these decisions pertain to criminal cases, they set forth general principles of due process that the Court finds instructive here.

Page 35 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 36 of 41 Page ID #:1539

be required to consider detainees’ ability to pay and alternatives to detention when setting bond amounts.

The Court also rejects Defendants’ appeal to the plenary power of Congress and the Executive over matters of immigration law. Although “‘Congress has ‘ plenary power’ to create immigration law, and . . . the judicial branch must defer to executive and legislative branch decisionmaking in that area, . . . . that power is subject to important constitutional limitations.’” Kwai Fun Wong v. United States, 373 F.3d 952, 974 (9th Cir. 2004) (quoting Zadvydas, 533 U.S. at 695); see also Fiallo v. Bell, 430 U.S. 787, 793 n.5 (1977) (“Our cases reflect acceptance of a limited judicial responsibility under the Constitution even with respect to the power of Congress to regulate the admission and exclusion of aliens . . . .”). Indeed, particularly with respect to bond determination procedures, the Ninth Circuit’s holdings in Casas, Singh, and Rodriguez establish that the power of Congress and the Executive Branch over matters of immigration law is subject to due process requirements.

Accordingly, the Court concludes Plaintiffs have established a substantial likelihood of success on the merits of their due process claim.

b. Equal Protection Challenge

i.

Applicable Law

The Fifth Amendment prohibits the federal government from denying individuals equal protection of the laws. U.S. Const. amend. V; see Tuan Anh Nguyen v. INS, 533 U.S. 53, 57 (2001). The question of whether a person has been denied equal protection turns on “whether the State has invidiously denied one class of defendants a substantial benefit available to another class of defendants.” See Bearden, 461 U.S. at 665. The Equal Protection Clause of the Fourteenth Amendment generally prohibits “punishing a person for his poverty.” Id. at 671. At the same time, because indigent persons are not a suspect class, a law treating indigent individuals differently need only pass a “rational basis test”: that is, the law “must [be] rationally related to a legitimate governmental interest.” Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999).

Many of the same decisions in the criminal bail context cited by the Court when addressing Plaintiffs’ due process claim also hold that the failure to consider an individual’s financial situation in bail determinations denies the individual equal protection of the laws. See Pugh, 572 F.2d at 1056; Jones, 2015 WL 5387219, at *2-3; Walker v. City of Calhoun, GA, No. 4:15–CV–0170–HLM, 2016 WL 361612, at *10-11, 14 (N.D. Ga. Jan. 28, 2016) (granting preliminary injunction enjoining Georgia city from mandating payment of pre-fixed bail amounts for different offenses); Pierce v. City of Velda City, MO, No. 4:15-cv-00570-HEA, 2015 WL 10013006, at *1 (E.D. Mo. June 3, 2015) (declaring secured bail schedule violates Fourteenth Amendment’s Equal Protection Clause); Thompson v. Moss Point, MS, No. 1:15-cv-00182-LGRHW, 2015 WL 10322003, at *1 (S.D. Miss. Nov. 16, 2015) (same); Cooper, 2015 WL 10013003, at *3-4 (M.D. Ala. June 18, 2015); Providence Cmty. Corr., Inc., 2015 WL 9239821, at *1, *6-*7. The reasoning underlying these decisions is simple: state policies that release individuals on bail

Page 36 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 37 of 41 Page ID #:1540

without considering their financial circumstances “visit different consequences on two categories of persons” and disproportionately result in the detention of indigent individuals. See M.L.B. v. S.L.J., 519 U.S. 102, 127 (1996) (internal citation, quotation marks, and alterations omitted).

As noted above, the Government endorsed many of these district court decisions in its August 18, 2016 amicus curae brief to the Eleventh Circuit in connection with the appellate proceedings in Walker. (See Supp. Kaufman Decl. II, Ex. B.) In its amicus brief, the Government argued that “fixed bail schedules that allow for the pretrial release of only those who can pay, without accounting for ability to pay and alternative methods of assuring future appearance . . . unlawfully discriminate based on indigence” because the “use of such schedules effectively denies pretrial release to those who cannot afford to pay the fixed bail amount, even if they pose no flight risk, and even if alternative methods of assuring appearance (such as an unsecured bond or supervised release) could be imposed.” (Id. at 26.)

ii. The Parties’ Contentions

Plaintiffs argue immigration officials’ failure to consider Class members’ financial situation and alternative conditions of release when setting bond violates the Fifth Amendment’s Equal Protection guarantee. (Prelim. Inj. Mot. at 14-15.) Plaintiffs note that immigration officials’ failure to consider such factors results in the detention of indigent individuals who cannot afford to pay the bond that is set in their cases. (Id.) Plaintiffs contend that “[b]ecause the [G]overnment’s policies or practices result in detention based solely on [Class members’] inability to pay, they constitute impermissible discrimination in violation of the Fifth Amendment.” (Id.)

Defendants respond that “[d]iscrimination within a class of aliens may be permissible if it is rationally related to achieving a valid governmental objective.” (Prelim. Inj. Mot. Opp. at 19.) Defendants contend the Government has a rational basis for setting bonds according to its current policies and practices. (Id.) Defendants claim current bond determination practices are necessary to “ensur[e] the appearance of aliens at future immigration proceedings.” (Id.)

iii. Analysis

The Court concludes Plaintiffs have demonstrated a likelihood of prevailing on their equal protection claim. As Plaintiffs argue, immigration officials’ failure to consider financial circumstances and alternative conditions of release when setting bond amounts disproportionately impact the indigent. Because these factors are not considered, indigent individuals are given bond amounts they cannot afford and must remain detained, while those who can afford bond are released. In short, Defendants’ bond determination practices “visit different consequences on two categories of persons” and thereby violate the Equal Protection guarantee of the Fifth Amendment. See M.L.B., 519 U.S. at 127.

Moreover, the Court does not agree that such practices are rationally related to a governmental interest. As the Court reasoned when addressing Plaintiffs’ due process claim, the detention of individuals who cannot afford to post the bond set in their cases is not tailored to the governmental interest in question – namely, ensuring detainees’ appearance in future

Page 37 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 38 of 41 Page ID #:1541

proceedings. Setting a bond amount without considering individuals’ ability to pay it or alternative conditions of release merely results in the detention of persons who cannot afford to pay the bond amount, even when a more affordable bond amount or alternative conditions of release might guarantee their appearance in future proceedings. Failing to consider such factors when setting bond therefore does not “rationally” serve the Government’s interest in ensuring detainees’ future appearance. See Cook, 169 F.3d at 1180. Hence, the Court concludes Plaintiffs have a strong likelihood of prevailing on their equal protection claim.
c. Excessive Bail Challenge
The Eighth Amendment’s Excessive Bail Clause provides that “[e]xcessive bail shall not be required.” U.S. Const. amend. VIII. “The Excessive Bail Clause prevents the imposition of bail conditions that are excessive in light of the valid interests the state seeks to protect by offering bail.” Galen v. Cty of Los Angeles, 477 F.3d 652, 660 (9th Cir. 2007) (internal citation omitted). In order to prevail on an excessive bail claim, a plaintiff must show that the bail conditions are excessive for the purpose of achieving “the valid state interests for which bail is intended to serve for a particular individual.” Id. However, “[t]he mere fact that [a plaintiff] may not have been able to pay the bail does not make it excessive.” White v. Wilson, 399 F.2d 596, 598 (9th Cir. 1968). Where the government’s interest in preventing danger or flight can be addressed by release on bail, “bail must be set by a court at a sum designed to ensure that goal, and no more.” United States v. Salerno, 481 U.S. 739, 754 (1987); Stack v. Boyle, 342 U.S. 1, 5 (1951) (stating that “bail set at a figure higher than an amount reasonably calculated [to ensure the defendant’s presence at trial] is ‘excessive’ under the Eighth Amendment”). The U.S. Supreme Court has indicated the Excessive Bail Clause applies to immigration proceedings and is not confined to the criminal context. See Carlson v. Landon, 342 U.S. 524, 539-40 (1952); Browning-Ferris Indus .of VT, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 263 n.3 (1989) (explaining that “potential for governmental abuse which the Bail Clause guards against” is implicated “when there is a direct government restraint on personal liberty, be it in a criminal case or in a civil deportation proceeding”).
Plaintiffs contend they are likely to succeed on their excessive bail claim because bond amounts imposed by immigration officials do not take into account Class members’ financial circumstances and alternatives to detention. (Prelim. Inj. Mot. at 15-17.) For largely the same reasoning described with respect to Plaintiffs’ other constitutional claims, the Court concludes Plaintiffs have shown a substantial likelihood of prevailing as to this claim. As noted previously, the fact that immigration officials do not consider individuals’ financial circumstances and alternatives to detention when setting bond results in bond amounts that are “higher than an amount reasonably calculated” to ensure detainees’ appearance during removal proceedings. See Landon, 342 U.S. at 539-40. Accordingly, the Court concludes Plaintiffs have shown a substantial likelihood of prevailing on their claim under the Excessive Bail Clause.
d. Constitutional Avoidance
Plaintiffs argue that because they have shown immigration officials’ failure to consider detainees’ financial circumstances and alternatives to detention when setting bond amounts

Page 38 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 39 of 41 Page ID #:1542

under 8 U.S.C. § 1226(a) is unconstitutional, the statute itself must be construed under constitutional avoidance doctrine to require that immigration officials consider such factors when making bond determinations. (Prelim. Inj. Mot. at 17-19.)
Under the statutory canon of constitutional avoidance, “when an Act of Congress raises ‘a serious doubt’ as to its constitutionality,” courts must “first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Zadvydas, 533 U.S. at 689; Jones v. United States, 526 U.S. 227, 239 (1999) (holding that “where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter”); Clark v. Martinez, 543 U.S. 371, 382 (2005) (same). This canon “is not a method of adjudicating constitutional questions” but rather “a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts.” Clark, 543 U.S. at 381.
The Court concludes Plaintiffs are likely to prevail on the merits of their claim under the constitutional avoidance doctrine. Defendants do not cite and the Court cannot find any evidence in the text or legislative history of 8 U.S.C. § 1226(a) suggesting the statute is not susceptible to Plaintiffs’ proposed construction.29 Hence, because the Court finds Plaintiffs are likely to prevail on the merits of their constitutional challenges to Defendants’ policies and practices, the Court finds Plaintiffs are also likely to succeed on their claim that 8 U.S.C. § 1226(a) must be construed to require consideration of detainees’ financial circumstances or alternatives to detention in initial bond determinations. See Zadvydas, 533 U.S. at 689.
2. Likelihood of Irreparable Harm
A plaintiff must demonstrate that he is likely to suffer irreparable harm in the absence of a preliminary injunction. See Winter, 555 U.S. at 20. Moreover, the Ninth Circuit has cautioned that “[s]peculative injury does not constitute irreparable injury sufficient to warrant granting a preliminary injunction.” Caribbean Marine Servs. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988). As a general rule, a plaintiff seeking injunctive relief must demonstrate that “remedies available at law, such as monetary damages, are inadequate to compensate” for the injury. Herb Reed Enters., LLC v. Fla. Entm't Mgmt., 736 F.3d 1239, 1249 (9th Cir. 2013). “It is well established
29 Defendants argue this interpretation of 8 U.S.C. § 1226(a) is inconsistent with congressional intent. Defendants note that Congress amended the statute in 1996 to increase the minimum statutory bond for aliens from $500 to $1,500. (Prelim. Inj. Mot. Opp. at 21-22.) Defendants argue this shows “Congress did not want ability to pay to be the dispositive factor in determining the amount of an immigration bond.” (Id. at 21.)
The Court rejects this argument. Under Plaintiffs’ construction of 8 U.S.C. § 1226(a), an individual’s ability to pay is not “the dispositive factor” in bond determinations. Rather, Plaintiffs argue only that the ability to pay must be considered in bond determinations. Moreover, the 1996 increase in the minimum statutory bond does not establish Congress intended that 8 U.S.C. § 1226(a) not include consideration of the ability to pay.

Page 39 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 40 of 41 Page ID #:1543

that the deprivation of constitutional rights unquestionably constitutes irreparable injury.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012).
Plaintiffs argue that Class members will suffer irreparable harm in the absence of a preliminary injunction because they have been deprived of their constitutional rights by having their bond amounts calculated according to the policies and practices at issue.30 (Prelim. Inj. Mot. at 19.) The Court agrees and concludes Plaintiffs have demonstrated a likelihood of irreparable harm. See Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013) (noting “it follows from our conclusion that the government’s reading of [immigration detention statutes] raises serious constitutional concerns that irreparable harm is likely, not just possible in the absence of preliminary injunctive relief”) (internal quotation marks omitted).
3. The Balance of the Equities
The Court concludes the balance of the equities favors granting a preliminary injunction. Plaintiffs have shown that the Class will suffer irreparable injury if the preliminary injunction is not granted. Conversely, Defendants have not claimed they will suffer any injury other than being required to “create a new policy that is . . . detrimental to the public interest and contrary to legislative intent.” (Prelim. Inj. Mot. Opp. at 25.) Under such circumstances, the balance of the equities weighs in favor of granting a preliminary injunction. See Rodriguez v. Robbins, 715 at 1145 (finding balance of equities favored granting a preliminary injunction where “[t]he government provide[d] 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”); 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.”).
4. The Public Interest
Lastly, the Court finds the public interest favors grant of a preliminary injunction because “[t]he public interest . . . benefits from a preliminary injunction that ensures that federal statutes
30 Defendants also argue Plaintiffs cannot demonstrate irreparable harm because “[w]here a harm is self-inflicted, that harm cannot be a basis for injunctive relief.” (Prelim. Inj. Mot. Opp. at 24.) Defendants go on to argue “[e]vading immigration authorities, associating with criminal gang members, and using a fraudulent identity can result in a higher bond determination.” (Id.) Even assuming these propositions are true, the injuries Plaintiffs allege – namely, having their bond determined according to unconstitutional policies and practices – are attributable to Defendants and not to Plaintiffs.
Defendants also raise the fact that Plaintiffs have been released from custody. (Defs. Supp. Brief at 2, 7-8; Dkt. No. 78.) However, as the Court noted previously, such developments do not affect Plaintiffs’ ability to seek injunctive relief because the violations they allege are “capable of repetition, yet evading review.” See Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975).

Page 40 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

Case 5:16-cv-00620-JGB-KK Document 84 Filed 11/10/16 Page 41 of 41 Page ID #:1544
are construed and implemented in a manner that avoids serious constitutional questions.” Rodriguez v. Robbins, 715 F.3d at 1146.
VI. CONCLUSION
For the foregoing reasons, the Court (1) DENIES Defendants’ Motion to Dismiss; (2) GRANTS Plaintiffs’ Motion for Class Certification; and (3) GRANTS Plaintiffs’ Motion for Preliminary Injunction. As set forth further in the Order concurrently filed herewith, the Court GRANTS Plaintiffs’ request for preliminary injunctive relief and ORDERS the parties to meet and confer regarding compliance with this Order.
IT IS SO ORDERED.

Page 41 of 41

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk MG

 
 Case 5:16-cv-00620-JGB-KK Document 1 Filed 04/06/16 Page 1 of 18 Page ID #:1

1 MICHAEL KAUFMAN (SBN 254575) mkaufman@aclu-sc.org
2 AHILAN T. ARULANANTHAM (SBN 237841) aarulanantham@aclu-sc.org
3 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street
4 Los Angeles, CA 90017 Telephone: (213) 977-5232
5 Facsimile: (213) 977-5297

6 Attorneys for Plaintiffs-Petitioners (Additional Counsel listed on following page)
7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

11 XOCHITL HERNANDEZ, CESAR ) Case No. 16-620

MATIAS, for themselves and on behalf )

12 of a class of similarly-situated individuals,

) )

COMPLAINT – CLASS ACTION

13

)

Plaintiffs-Petitioners,

)

14

)

v.

)

15

)

LORETTA LYNCH, U.S. Attorney )

16 General, JUAN P. OSUNA, Director, )

Executive Office for Immigration

)

17 Review, JEH JOHNSON, Secretary, )

Department of Homeland Security,

)

18 SARAH R. SALDAÑA, Director,

)

Immigration and Customs Enforcement )

19 (ICE), DAVID JENNINGS, Field Office ) Director, Los Angeles Field Office of )

20 ICE, JAMES JANECKA, Warden,

)

Adelanto Detention Facility;

)

21 CHRISTINA HOLLAND, Jail

)

Administrator, Santa Ana City Jail,

)

22 CARLOS ROJA, Chief, Santa Ana City )

Department, JON BRIGGS, Captain, )

23 Orange County Sheriff’s Department )

(OCSD), MIKE KRUEGER, Captain, )

24 OCSD, SANDRA HUTCHENS, Sheriff, ) Orange County, in their official capacity )

25 only,

)

)

26

Defendants-Respondents. )

)

27

28

Case 5:16-cv-00620-JGB-KK Document 1 Filed 04/06/16 Page 2 of 18 Page ID #:2
1 MICHAEL TAN* mtan@aclu.org
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 STEPHEN KANG (SBN 292280)
7 skang@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 DOUGLAS A. SMITH (SBN 290598)
Douglas.Smith@probonolaw.com 12 WINSTON P. HSIAO (SBN 273638)
Winston.Hsiao@probonolaw.com 13 GRAYCE S. FRINK (SBN 279112)
Grayce.Frink@probonolaw.com 14 DEVON L. HEIN (SBN 287832)
Devon.Hein@probonolaw.com 15 MATTHEW E. DELGADO (SBN 306999)
Matthew.Delgado@probonolaw.com 16 300 South Grand Avenue, Suite 3400
Los Angeles, California 90071-3144 17 Telephone: (213) 687-5000
Facsimile: (213) 687-5600 18
Attorneys for Plaintiffs-Petitioners 19
* pro hac vice or admission application forthcoming 20 21 22 23 24 25 26 27 28

Case 5:16-cv-00620-JGB-KK Document 1 Filed 04/06/16 Page 3 of 18 Page ID #:3

1

INTRODUCTION

2 1. This class action lawsuit challenges the federal government’s policy and

3 practice of setting cash bonds for noncitizens in immigration proceedings, without

4 regard to a noncitizen’s financial resources, which has resulted in the incarceration of

5 individuals merely because they are poor. As a result of these policies and practices,

6 many noncitizens—including longtime lawful permanent residents and asylum seekers

7 fleeing persecution (including in some cases unlawful imprisonment)—are ordered

8 released on a cash bond but cannot pay it, and remain detained for prolonged periods

9 while their immigration cases are pending. The detention of such individuals is not

10 justified by any valid interest, but rather is based on nothing more than the fact that

11 they are poor or otherwise lack the financial ability to pay their bonds.

12 2. Plaintiffs-Petitioners Xochitl Hernandez, a mother and grandmother who has

13 resided in the United States for more than twenty-five years, and Cesar Matias, a

14 Honduran national seeking asylum in the United States, are detained under the

15 Immigration and Nationality Act (“INA”), 8 U.S.C. § 1226(a). Each Plaintiff has been

16 granted release on a money bond pending their immigration removal proceedings.

17 However, Plaintiffs face months or even years in immigration detention because they

18 are unable to pay the bond set by Defendants. Indeed, Mr. Matias has already been

19 detained nearly three-and-a-half years because he cannot afford to pay his bond.

20 3. Plaintiffs’ detentions result from three flaws in the immigration detention

21 process. First, as a matter of policy and practice, immigration officials are not required

22 to consider an immigration detainee’s financial ability to pay when setting a money

23 bond. Second, when they do set the bond amount, immigration officials require

24 noncitizens to post the full cash bond amount to be released, instead of permitting

25 noncitizens to post a deposit, property, or other assets as collateral. And third, as a

26 matter of policy and practice, immigration officials are not required to consider

27 whether alternative conditions of supervision (such as electronic monitoring or

28 periodic reporting requirements), alone or in combination with a lower bond amount,

1

Case 5:16-cv-00620-JGB-KK Document 1 Filed 04/06/16 Page 4 of 18 Page ID #:4

1 would be sufficient to mitigate flight risk and thus permit the person’s release. The

2 result is that the government incarcerates Plaintiffs and others solely because they lack

3 the financial means to post the full bond amount that Defendants have set.

4 4. Plaintiffs are not alone. On any given day, at least a hundred similarly situated

5 immigration detainees remain detained in this District on money bonds set pursuant to

6 Defendants’ policies and practices.

7 5. Defendants’ policies and practices violate the INA; the due process and equal

8 protection guarantees of the Fifth Amendment; and the Eighth Amendment’s

9 Excessive Bail Clause. A person’s poverty or lack of financial resources should not

10 deprive him of his freedom. Indeed, the federal government has recognized in the

11 criminal bail context that “[i]ncarcerating [criminal defendants] solely because of their

12 inability to pay for their release . . . through the payment of . . . a cash bond . . .

13 violates the Equal Protection Clause . . . .” and that bail systems must “take individual 14 circumstances into account”—including the person’s financial ability to pay.1

15 6. The same principles should govern here. The INA and U.S. Constitution require

16 that the government both assess an individual’s financial ability to pay when setting

17 bond and determine if alternative forms of bond or other conditions of supervision

18 permit the detainee’s release. These basic procedures are necessary to ensure that

19 Plaintiffs and similarly situated individuals are not impermissibly imprisoned based

20 solely on their inability to pay.

21

PARTIES

22 7. Plaintiff-Petitioner Xochitl Hernandez is a native and citizen of Mexico. She is

23 detained at the Adelanto Detention Center in Adelanto, California pending

24 immigration removal proceedings. Ms. Hernandez came to the United States as an

25 1 Statement of Interest of the United States at 1, 8 (hereinafter “Varden Statement”),
26 Varden v. City of Clanton, No. 2:15-cv-00034-MHT (M.D. Ala.filed Feb. 13, 2015) (Dkt. 26) sub nom. Jones v. The City of Clanton; accord U.S. Dep’t of Justice, Dear
27 Colleague Letter, Mar. 14, 2016, at 7-8, available at https://www.justice.gov/crt/file/832461/download (stating that “[c]ourts must not
28 employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release”). 2

Case 5:16-cv-00620-JGB-KK Document 1 Filed 04/06/16 Page 5 of 18 Page ID #:5
1 adolescent, and has lived in the United States for more than 25 years. Ms. Hernandez 2 is a single mother who has raised five children in the United States, and cares for her 3 four grandchildren. All her children and grandchildren are United States citizens. Prior 4 to her detention, Ms. Hernandez lived with her children and grandchildren, and 5 cooked, cleaned, and cared for her family, including her mother who suffers from a 6 heart condition. More than a decade ago, Ms. Hernandez was convicted for 7 shoplifting, for which she was sentenced to one-day in jail; it is the sole crime for 8 which she has been convicted during her decades in the United States. In March 2016, 9 an immigration judge conducted a bond hearing in Ms. Hernandez’s case under 10 Section 1226(a) and set her bond at $60,000. Ms. Hernandez and her family do not 11 have the financial ability to pay this bond. Ms. Hernandez’s adult children have no 12 assets, and have to dedicate their limited earnings to rent, food, and other basic 13 necessities. Ms. Hernandez remains detained because of Defendants’ policy and 14 practice of failing to consider immigration detainees’ financial ability to pay a bond; 15 requiring detainees to post the full cash bond amount to be released; and failing to 16 consider whether release on an alternative form of bond or conditions of supervision 17 would sufficiently address any concerns about flight risk. Ms. Hernandez is eligible 18 for cancellation of removal and for a U-visa (as a victim of domestic violence), but 19 faces the prospect of months or years in detention until her immigration case is 20 resolved. 21 8. Plaintiff-Petitioner Cesar Matias is a native and citizen of Honduras. Prior to his 22 detention, Mr. Matias resided in Los Angeles and worked as a hair stylist. Mr. Matias 23 has been detained for more than four years at the Santa Ana City Jail in Santa Ana, 24 California pending immigration removal proceedings. A gay man, Mr. Matias is 25 seeking protection in the United States on account of the severe persecution he 26 suffered in Honduras because of his sexual orientation. In November 2012, and again 27 in February 2013, August 2013, and August 2014, Defendants authorized Mr. Matias’ 28 release on a $3,000 bond under Section 1226(a). However, Mr. Matias has remained
3

Case 5:16-cv-00620-JGB-KK Document 1 Filed 04/06/16 Page 6 of 18 Page ID #:6
1 detained because of Defendants’ policy and practice of failing to consider immigration 2 detainees’ financial ability to pay a bond; requiring detainees to post the full cash 3 bond amount to be released; and failing to consider whether release on an alternative 4 form of bond or conditions of supervision would sufficiently address any concerns 5 about flight risk. Mr. Matias’ removal case is pending at the Ninth Circuit Court of 6 Appeals, which has ordered a stay of removal and appointed him pro bono counsel in 7 connection with his appeal. He faces the prospect of months or years of additional 8 detention until his case is resolved. 9 9. Defendant-Respondent Loretta Lynch is the Attorney General of the United 10 States and the most senior official in the U.S. Department of Justice (“DOJ”). She has 11 the authority to interpret the immigration laws and adjudicate removal cases. The 12 Attorney General delegates this responsibility to the Executive Office for Immigration 13 Review (“EOIR”), which administers the immigration courts and the Board of 14 Immigration Appeals (“BIA”). She is named in her official capacity. 15 10. Defendant-Respondent Juan P. Osuna is the Director of EOIR, the agency 16 within DOJ responsible for the immigration courts and the BIA. He is named in his 17 official capacity. 18 11. Defendant-Respondent Jeh Johnson is the Secretary of the U.S. Department of 19 Homeland Security (“DHS”), an agency of the United States. Secretary Johnson is a 20 legal custodian of Plaintiff-Petitioners and other members of the proposed class 21 (“Plaintiffs”). He is named in his official capacity. 22 12. Defendant-Respondent Sarah R. Saldaña is the Director of U.S. Immigration 23 and Customs Enforcement (“ICE”). ICE is responsible for apprehension, detention, 24 and removal of noncitizens from the United States. Director Saldaña is a legal 25 custodian of the Plaintiffs. She is named in her official capacity. 26 13. David Jennings is the Field Office Director for the Los Angeles Field Office of 27 ICE, a component of DHS. Director Jennings has custody of the Plaintiffs and is 28 named in his official capacity.
4

Case 5:16-cv-00620-JGB-KK Document 1 Filed 04/06/16 Page 7 of 18 Page ID #:7

1 14. Defendant-Respondent James Janecka is the Warden of the Adelanto Detention

2 Facility in Adelanto, California. Warden Janecka has custody of the Plaintiffs and is

3 named in his official capacity.

4 15. Defendant-Respondent Christina Holland is the Jail Administrator of the Santa

5 Ana City Jail in Santa Ana, California. Defendant Holland has custody of the

6 Plaintiffs and is named in her official capacity.

7 16. Defendant-Respondent Carlos Roja is the Chief of the Santa Ana City

8 Department, which operates the Santa Ana City Jail in Santa Ana, California. Chief

9 Holland has custody of the Plaintiffs and is named in his official capacity.

10 17. Defendant-Respondent Jon Briggs is a Captain in the Orange County Sheriff’s

11 Department and the Officer-in-Charge of the Theo Lacy Facility in Santa Ana,

12 California. Captain Briggs has custody of the Plaintiffs and is named in his official

13 capacity.

14 18. Defendant-Respondent Mike Krueger is a Captain in the Orange County

15 Sheriff’s Department and the Officer-in-Charge of the James A. Musick Facility in

16 Irvine, California. Captain Krueger has custody of the Plaintiffs and is named in his

17 official capacity.

18 19. Defendant-Respondent Sandra Hutchens is the Sheriff of Orange County, which

19 operates the Theo Lacy Facility in Santa Ana, California, and the James A. Musick

20 Facility in Irvine, California. Chief Hutchens has custody of the Plaintiffs and is

21 named in her official capacity.

22

JURISDICTION AND VENUE

23 20. Jurisdiction is proper under 28 U.S.C. §§ 1331, 1361, 1651, 2241; the

24 Suspension Clause, U.S. Const. art. I, § 2; and 5 U.S.C. § 702.

25 21. Plaintiffs seek declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201-

26 2202.

27 22. Venue is proper in the Central District of California under 28 U.S.C. § 1391

28 because at least one federal Defendant is in this District, the Plaintiffs are detained in

5

Case 5:16-cv-00620-JGB-KK Document 1 Filed 04/06/16 Page 8 of 18 Page ID #:8

1 this District, and a substantial part of the events giving rise to the claims in this action

2 took place in this District.

3

BACKGROUND

4 Legal Background

5 23. INA § 236(a), 8 U.S.C. § 1226(a), authorizes immigration officials to release a

6 noncitizen on appropriate conditions pending the resolution of his or her immigration

7 case. Section 1226(a) provides that, “pending a decision on whether the alien is to be

8 removed from the United States,”

9

“the Attorney General--

(1) may continue to detain the arrested alien; and

10

(2) may release the alien on--

(A) bond of at least $1,500 with security approved by, and

11

containing conditions prescribed by, the Attorney General;

or

12

(B) conditional parole . . . .”

13 Id.

14 24. The Attorney General shares his authority to detain or release noncitizens under

15 Section 1226(a) with the Secretary of Homeland Security. See 8 U.S.C. § 1103(a) &

16 (g); Homeland Security Act of 2002, Pub. L. No. 107-296, § 441, 116 Stat. 2192.

17 25. The Department of Homeland Security (“DHS”) makes an initial custody

18 determination for each noncitizen detained under the statute, whereby the agency

19 considers him or her for release on bond, recognizance, or other conditions (such as

20 electronic monitoring, periodic reporting requirements, restrictions on travel, or

21 enrollment in a substance abuse program). With some exceptions not relevant here,

22 noncitizens may seek review of an ICE custody determination before an immigration

23 judge (“IJ”) at a hearing commonly known as a “bond hearing.” See 8 C.F.R.

24 §§ 1003.19(a) & (h)(2)(i). At the bond hearing, the IJ likewise determines whether the

25 noncitizen can be released on bond, recognizance, or other conditions. See 8 C.F.R.

26 § 1236.1(d)(1); 8 C.F.R. § 1003.19.

27 26. To obtain release from ICE or the IJ, the noncitizen must “demonstrate to the

28 satisfaction of the officer that [his or her] release would not pose a danger to property

6

Case 5:16-cv-00620-JGB-KK Document 1 Filed 04/06/16 Page 9 of 18 Page ID #:9
1 or persons, and that [he or she] is likely to appear for any future proceeding.” 8 C.F.R. 2 § 1236.1(c)(8); Matter of Adeniji, 22 I. & N. Dec. 1102 (BIA 1999). A noncitizen 3 found to present a danger to persons or property is ineligible for release on bond. 4 Matter of Guerra, 24 I. & N. Dec. 37, 38 (BIA 2006). If the person does not pose a 5 danger and is likely to appear at future proceedings, the ICE officer or IJ determines 6 whether the noncitizen may be released on recognizance, bond, or other conditions 7 that will sufficiently address any concerns about flight risk. See id. at 39-40. 8 27. There is presently no requirement that ICE consider a detainee’s poverty or 9 financial ability to pay when setting a bond under Section 1226(a). Nor is there any 10 requirement that ICE determine whether conditions of supervision, alone or in 11 combination with a lower bond, would suffice to allow for the person’s release. 12 28. Under BIA precedent, the IJ has “broad discretion in deciding the factors that 13 he or she may consider in custody redeterminations.” Guerra, 24 I. & N. Dec. at 40. 14 However, there is no requirement that IJs consider an individual’s ability to pay the 15 bond. Indeed, in a series of unpublished decisions, the BIA has held that a person’s 16 financial circumstances are irrelevant to a bond determination. See In Re Sandoval17 Gomez, 2008 WL 5477710, at *1 (BIA Dec. 15, 2008) (“an alien’s ability to pay the 18 bond amount is not a relevant bond determination factor”); In Re Castillo-Cajura, 19 2009 WL 3063742, at *1 (BIA Sept. 10, 2009) (same). Nor is there any requirement 20 that IJs determine whether conditions of supervision, alone or in combination with a 21 lower bond, would sufficiently address any concerns about flight risk and therefore 22 suffice to allow for the person’s release. 23 29. The regulations further permit the noncitizen to seek a new bond 24 redetermination by the IJ, but “only upon a showing that the alien’s circumstances 25 have changed materially since the prior bond redetermination.” 8 C.F.R. § 1003.19(e). 26 However, Defendants do not recognize a person’s financial inability to post bond, 27 despite having made good faith efforts to do so, as a “changed circumstance” that 28 warrants a new bond hearing.
7

Case 5:16-cv-00620-JGB-KK Document 1 Filed 04/06/16 Page 10 of 18 Page ID #:10
1 30. Section 1226(a) imposes a minimum $1,500 bond, “with security approved by 2 . . . the Attorney General.” However, in practice ICE or IJs routinely set higher bonds, 3 such as $20,000, $25,000, and even $100,000 or more. 4 31. Moreover, although Section 1226(a) refers broadly to “security approved by . . . 5 the Attorney General,” the government has a policy and practice of requiring 6 immigration detainees to post the full cash value of the immigration bond to obtain 7 release. In sharp contrast to the criminal justice system, no other forms of secured 8 bonds are deemed acceptable, such as deposit bonds—where the noncitizen would 9 post a percentage (such as 10%) of the bond as security, and the total bond amount 10 becomes due only if he fails to appear—or property bonds, where property valued at 11 the full bond amount would be posted as security and would be forfeited if the person 12 fails to appear. 13 32. The government’s reliance on full cash bonds—without consideration of an 14 individual’s financial ability to pay the bond—is out of step with well-established 15 procedures in federal and state courts. Under the federal Bail Reform Act, a district 16 court must consider a range of alternative conditions before ordering release on 17 monetary bond and “may not impose a financial condition that results in the pretrial 18 detention of the person.” See 18 U.S.C. § 3142(a)-(c). Likewise, state criminal justice 19 systems in this Circuit require that judicial officers must consider a defendant’s 20 financial ability to pay at custody hearings. See, e.g., Alaska Stat. Ann. 21 § 12.30.011(c)(8) (requiring court to consider “assets available to the person to meet 22 monetary conditions of release”); Cal. Penal Code § 1270.1 (requiring court to 23 consider detained person’s “ability to post bond”); Nev. Rev. Stat. Ann. § 178.498 24 (requiring bail to be set with regard to “[t]he financial ability of the defendant to give 25 bail”); Mont. Code Ann. § 46-9-301 (requiring bail to be “considerate of the financial 26 ability of the accused”); Haw. Rev. Stat. Ann. § 804-9 (amount of bail should be 27 determined so as not “to render the privilege useless to the poor”); Wash. Rev. Code 28 Ann. § SUPER CT CR CrR 3.2(b)(6) (“If the court determines that the accused must
8

Case 5:16-cv-00620-JGB-KK Document 1 Filed 04/06/16 Page 11 of 18 Page ID #:11

1 post a secured or unsecured bond, the court shall consider, on the available

2 information, the accused’s financial resources for the purposes of setting a bond that

3 will reasonably assure the accused's appearance.”). See also Gusick v. Boies, 72 Ariz.

4 233, 237 (1951) (noting that that court should consider “the ability of the accused to

5 give bail” when setting bail to comport with the prohibition of excessive bail).

6 33. Bond systems for criminal detainees also routinely accept the posting of deposit

7 or property bonds, rather than insisting on payment of a full cash bond.

8 34. Federal and state officials—including the U.S. Department of Justice—are

9 increasingly calling for an end to the over-reliance on monetary bond, fines, fees, and

10 other financial constraints that disproportionately affect low-income individuals in the

11 criminal justice system.2 However, the federal government’s immigration detention

12 policies practices suffer from the same flaws.

13

CLASS ACTION ALLEGATIONS

14 Defendants’ Policies and Practices for Setting Immigration Bonds in the Central District of California
15

16 35. ICE detains several thousand noncitizens in the Central District of California

17 (the “District”) at any given time, primarily at four detention facilities. The largest, the

18 Adelanto Detention Facility in Adelanto, California, is operated by the GEO

19 Corporation and has capacity to hold approximately 1,950 immigrants. ICE also

20 detains noncitizens in three other detention centers located in Orange County. The

21 James A. Musick Facility in Irvine, California, is operated by the Orange County

22 Sheriff and has capacity to hold approximately 350 immigrants. The Theo Lacy

23 Facility in Orange, California, is operated by the Orange County Sheriff and has

24 capacity to hold approximately 475 immigrants. The Santa Ana City Jail in Santa Ana,

25 California, is operated by the Santa Ana City Police and has capacity to hold

26 approximately 200 immigrants.

27 36. As a matter of policy, practice, or both, ICE and IJs in the District are not

28 2 See Varden Statement at 5-8, 11, 13-14.
9

Case 5:16-cv-00620-JGB-KK Document 1 Filed 04/06/16 Page 12 of 18 Page ID #:12
1 required to consider an individual’s financial resources in setting bond amounts under 2 Section 1226(a). 3 37. As a matter of policy, practice, or both, Defendants require that immigrants post 4 the full cash bond to be released. 5 38. As a matter of policy, practice, or both, ICE and IJs are not required to consider 6 whether an alternative form of bond or conditions of supervision, alone or in 7 combination with a lower bond, would suffice to address flight risk and permit 8 release. 9 39. On any given day, at least 100 immigrants—and likely many more—remain 10 detained in this District under Section 1226(a) on a bond set pursuant to these policies, 11 practices, or both. This is so even though, by setting a bond, Defendants have already 12 determined that such individuals do not pose a danger to the community or a level of 13 flight risk that requires their detention. 14 40. The stories of the individual Plaintiffs are typical of the detention practices in 15 this District. For example, Plaintiff Matias was ordered released on a $3,000 bond 16 following a bond hearing in immigration court in approximately November 2012. At 17 the hearing, the IJ did not ask any questions about his financial circumstances or 18 ability to pay a bond. At a court hearing in February 2013, Mr. Matias again requested 19 release from detention to retrieve documents for his removal case. The IJ refused, 20 telling him the bond set was “pretty generous” even though he could not afford it. In 21 approximately August 2013, ICE re-evaluated Mr. Matias’s custody, but did not 22 inquire into his financial circumstances or ability to pay a bond. ICE issued a decision 23 ordering him released on a $3,000 bond, the same bond amount ordered by the IJ that 24 he had been unable to afford. At a hearing in approximately August 2014, Mr. Matias 25 requested that the IJ consider releasing him on non-monetary conditions but the IJ 26 refused, stating that the $3,000 bond amount was “reasonable,” even though Mr. 27 Matias had been unable to afford it for more than a year and a half at that point. As of 28 this time, Mr. Matias has remained detained for more than three and a half years since
10

Case 5:16-cv-00620-JGB-KK Document 1 Filed 04/06/16 Page 13 of 18 Page ID #:13

1 his bond was initially set.

2 41. Similarly, Ms. Hernandez was ordered released on a $60,000 bond following a

3 bond hearing in immigration court in March 2016. The immigration judge found that

4 Ms. Hernandez was not a danger to the community, but that she “posed a flight risk”

5 because she might not win her immigration case. However, prior to setting the bond,

6 the immigration judge did not inquire into Ms. Hernandez’s financial circumstances or

7 her ability to pay a bond, and did not state whether he considered whether she could

8 be released on non-monetary conditions that would suffice to address concerns about

9 flight risk. Because Ms. Hernandez and her family lack the resources to pay the bond,

10 she has been detained for several weeks since the bond was initially set, and faces the

11 prospect of months or years of additional time in detention until her case completes.

12 42. Plaintiffs’ experiences are similar to those of other proposed class members.

13 For example, in one case of a detainee held in the Central District, an IJ refused to

14 lower a bond to an amount the detainee’s family could afford on the ground that

15 evidence of financial circumstances was “irrelevant” to the bond amount

16 determination. In another case of a detainee held in the Central District, a different IJ

17 refused to consider a detainee’s indigence and dismissed evidence of financial

18 hardship because “everyone is poor in here.”

19 This Action Satisfies the Requirements of Federal Rule of Civil Procedure 23 20 43. Plaintiffs Hernandez and Matias bring this action pursuant to Federal Rules of

21 Civil Procedure 23(b)(2) on behalf of themselves and all other persons similarly

22 situated. The proposed class is defined as follows:

23

All individuals who are or will be detained pursuant to 8 U.S.C.

24

§ 1226(a) on a bond set by an U.S. Immigration and Customs

25

Enforcement officer or an Immigration Judge in the Central District of California.

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

27 numerous that joinder of all members is impracticable. At any given time, at least 100

28 persons remain detained on a bond set by government officials in this District

11

Case 5:16-cv-00620-JGB-KK Document 1 Filed 04/06/16 Page 14 of 18 Page ID #:14
1 pursuant to the bond policies and practices that Plaintiffs challenge. More individuals 2 will become class members in the future, as Defendants continue to detain additional 3 noncitizens under Section 1226(a) on a monetary bond pursuant to their bond policies 4 and practices. 5 45. Moreover, because Plaintiffs and proposed class members are detained pending 6 removal proceedings, they may win their cases and be released or deported upon the 7 conclusion of their removal cases. The inherently transitory state of the proposed class 8 further demonstrates that joinder is impracticable. 9 46. The proposed class meets the commonality requirements of Federal Rule of 10 Civil Procedure 23(a)(2) because all proposed class members are subject to 11 Defendants’ three common policies or practices: Defendants’ failure to require that 12 ICE and IJs consider an individual’s ability to pay in setting a bond under Section 13 1226(a); Defendants’ requirement that detainees post full cash bonds rather than other 14 forms of secured bonds; and Defendants’ failure to require a determination that no 15 conditions of supervision, alone or in combination with a lower bond, would mitigate 16 flight risk. Defendants have concluded that they are not required to make such 17 inquiries or to accept alternative forms of secured bonds, and this policy applies to all 18 members of the proposed class. 19 47. The proposed class meets the typicality requirements of Federal Rule of Civil 20 Procedure 23(a)(3) because the claims of the representative Plaintiffs are typical of the 21 claims of the class. Plaintiffs Hernandez, Matias, and the class they seek to represent 22 are all individuals who are or will be detained on a full cash bond pursuant to Section 23 1226(a), and whose bonds have been set or will be set without any requirement that 24 Defendants consider their financial ability to pay or the adequacy of an alternative 25 bond or alternative conditions of supervision. Plaintiffs Hernandez, Matias, and the 26 proposed class also share the same legal claims, which challenge the legality of these 27 bond policies and practices under the INA, the Due Process Clause and equal 28
12

Case 5:16-cv-00620-JGB-KK Document 1 Filed 04/06/16 Page 15 of 18 Page ID #:15

1 protection guarantee of the Fifth Amendment, and the Eighth Amendment’s Excessive

2 Bail Clause.

3 48. The proposed class meets the adequacy requirements of Federal Rule of Civil

4 Procedure 23(a)(4). Plaintiffs Hernandez and Matias seek the same relief as the other

5 members of the class—namely, custody decisions that require consideration of both

6 their financial ability to pay a money bond and the adequacy of alternative conditions

7 of supervision, as well as the opportunity to post forms of security other than a full

8 cash bond—and they do not have any interests adverse to those of the class as a

9 whole.

10 49. In addition, the proposed class is represented by counsel from the American

11 Civil Liberties Union of Southern California, the American Civil Liberties Union

12 Immigrants’ Rights Project, and experienced pro bono attorneys. Counsel have

13 extensive experience litigating class action lawsuits and other complex cases in

14 federal court, including civil rights lawsuits on behalf of immigration detainees.

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

16 because the immigration authorities have acted on grounds generally applicable to the

17 class by failing to apply procedures required by the U.S. Constitution and Section

18 1226(a) to all members of the proposed class. Thus, final injunctive and declaratory

19 relief is appropriate with respect to the class as a whole.

20 51. In the alternative, the class also qualifies for certification under Federal Rules of

21 Civil Procedure 23(b)(1)(A) and (b)(1)(B).

22

CLAIMS FOR RELIEF

23

First Claim

24

Violation of the Immigration and Nationality Act

25 52. All of the foregoing allegations are repeated and realleged as though fully set

26 forth herein.

27 53. Defendants’ policies and practices for setting bond violate the Immigration and

28 Nationality Act (“INA”), 8 U.S.C. § 1226(a). Properly construed, Section 1226(a)

13

Case 5:16-cv-00620-JGB-KK Document 1 Filed 04/06/16 Page 16 of 18 Page ID #:16

1 does not permit the government to detain Plaintiffs and proposed class members on a

2 full cash bond absent consideration of the person’s financial ability to pay the bond

3 amount and consideration of whether an alternative form of bond or other conditions

4 of supervision, alone or in combination with a lower bond, would sufficiently mitigate

5 flight risk. Plaintiffs’ detention under Section 1226(a) in the absence of such

6 procedures violates the INA.

7

Second Claim

8

Violation of the Due Process Clause of the Fifth Amendment

9

to the United States Constitution

10 54. All of the foregoing allegations are repeated and realleged as though fully set

11 forth herein.

12 55. The Fifth Amendment to the U.S. Constitution provides that “[n]o person shall

13 be . . . deprived of life, liberty, or property, without due process of law.” U.S. Const.

14 amend. V. Due process requires that civil immigration detention be reasonably related

15 to preventing flight and danger to the community and be accompanied by adequate

16 procedures to ensure those goals are being met.

17 56. For these reasons, due process does not permit the government to detain

18 Plaintiffs on a full cash bond absent a determination of a person’s financial ability to

19 pay the bond amount and whether an alternative form of bond or other conditions of

20 supervision, alone or in combination with a lower bond, can sufficiently mitigate

21 flight risk.

Third Claim

22

Violation of the Equal Protection Guarantee of the Fifth Amendment

23 57. All of the foregoing allegations are repeated and realleged as though fully set

24 forth herein.

25 58. The Fifth Amendment prohibits denying individuals the equal protection of the

26 laws.

27 59. The government’s detention of individuals because they lack the financial

28 resources to pay a money bond, while affording release to individuals who can afford

14

Case 5:16-cv-00620-JGB-KK Document 1 Filed 04/06/16 Page 17 of 18 Page ID #:17

1 a money bond, discriminates against individuals who are indigent or lack the

2 resources to pay their bonds.

3 60. For this reason, equal protection does not permit the government to detain

4 Plaintiffs on a full cash bond absent a determination of a person’s ability to pay the

5 bond amount and whether an alternative form of bond or other conditions of

6 supervision, alone or in combination with a lower bond, can sufficiently mitigate

7 flight risk.

8

Fourth Claim Violation of the Excessive Bail Clause of the Eighth Amendment

9

to the United States Constitution

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

11 forth herein.

12 62. The Eighth Amendment provides that “[e]xcessive bail shall not be required

13 . . . .” U.S. Const. amend. VIII. “[B]ail must be set by a court at a sum designed to

14 ensure” the government’s goals of preventing flight and danger—“and no more.”

15 United States v. Salerno, 481 U.S. 739, 754 (1987).

16 63. Thus, the Eighth Amendment does not permit the government to detain

17 Plaintiffs on a full cash bond absent a determination of a person’s ability to pay the

18 bond amount and whether an alternative form of bond or other conditions of

19 supervision, alone or in combination with a lower bond, can sufficiently mitigate

20 flight risk.

21

PRAYER FOR RELIEF

22 Plaintiffs ask this Court to grant the following relief:

23 1. Certify this case as a class action lawsuit, as proposed herein, appoint Plaintiffs

24 Hernandez and Matias as representatives of the class and the undersigned counsel as

25 class counsel;

26 2. Declare that Defendants’ policy and practice, as described in this Complaint, of

27 detaining class members on a full cash bond without requiring that ICE and the IJ

28 consider class members’ financial ability to pay when setting a bond, as well as the

15

Case 5:16-cv-00620-JGB-KK Document 1 Filed 04/06/16 Page 18 of 18 Page ID #:18

1 adequacy of an alternative form of secured bond and alternative conditions of

2 supervision, violates the INA, 8 U.S.C. § 1226(a), and the Fifth and Eighth

3 Amendments to the U.S. Constitution;

4 3. Order the Defendants to assess each class member’s financial ability to pay in

5 setting a bond under 8 U.S.C. § 1226(a) and consider whether an alternative form of

6 secured bond or other conditions of supervision, alone or in combination with a lower

7 bond, would mitigate flight risk and permit the class member’s release. If a class

8 member is unable to pay any bond set by the IJ after making good faith efforts to do

9 so, Defendants must provide the class member with a new bond hearing before the IJ

10 to determine if he or she may be released on an alternative form of secured bond or

11 other conditions of supervision, alone or in combination with a lower bond;

12 4. Grant Plaintiffs Hernandez and Matias’s writs of habeas corpus and order a

13 bond hearing where the IJ considers their financial ability to pay a monetary bond and

14 whether an alternative form of secured bond or other conditions of supervision, alone

15 or in combination with a lower bond, would mitigate flight risk and permit the

16 Plaintiffs’ release. If the Plaintiff is unable to pay any new bond set by the IJ after

17 making good faith efforts to do so, Defendants must provide him or her with a new

18 bond hearing before the IJ to determine if he or she may be released on an alternative

19 form of secured bond or other conditions of supervision, alone or in combination with

20 a lower bond;

21 5. Grant an award of attorneys’ fees and costs; and

22 6. Grant such other relief as may be just and reasonable.

23

Respectfully submitted,

24

ACLU OF SOUTHERN CALIFORNIA

25 Dated: April 6, 2016 26 27

/s/ Michael Kaufman MICHAEL KAUFMAN Counsel for Plaintiffs-Petitioners

28

16

 
 Case 5:16-cv-00620-JGB-KK Document 94 Filed 01/04/17 Page 1 of 1 Page ID #:1635
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JAN 04 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

XOCHITL HERNANDEZ, for themselves and on behalf of a class of similarlysituated individuals and CESAR MATIAS, for themselves and on behalf of a class of similarly-situated individuals,
Plaintiffs-Appellees,

No. 16-56829
D.C. No. 5:16-cv-00620-JGB-KK Central District of California, Riverside

v.

ORDER

LORETTA E. LYNCH, Attorney General; et al.,

Defendants-Appellants.

Before: LEAVY and SILVERMAN, Circuit Judges. Appellant’s motion to stay the district court’s November 10, 2016 order
pending appeal (Docket Entry No. 5) is granted. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
The briefing schedule established previously remains in effect.

MBI/MOATT

 
 Case5:16-cv-00620-JGB-KK Document 85 Filed 11/10/16 Page 1 of 5 Page ID #:1545

 0,&+$(/.$8)0$16%1 PNDXIPDQ#DFOXVFRUJ
 $+,/$17$58/$1$17+$06%1 DDUXODQDQWKDP#DFOXVFRUJ
 $&/8)281'$7,212)6287+(51&$/,)251,$ :HVWWK6WUHHW
 /RV$QJHOHV&$ 7HOHSKRQH
 )DFVLPLOH

 Attorneys for Plaintiffs-Petitioners  Additional Counsel listed on following page



81,7('67$7(6',675,&7&2857





)257+(&(175$/',675,&72)&$/,)251,$



     

;2&+,7/+(51$1'(=&(6$5 0$7,$6IRUWKHPVHOYHVDQGRQEHKDOI

  

RIDFODVVRIVLPLODUO\VLWXDWHG



LQGLYLGXDOV 



3ODLQWLIIV3HWLWLRQHUV

 





Y 

  

&LYLO$FWLRQ1R-*%..   25'(5*5$17,1* 3/$,17,))63(7,7,21(56¶ 027,21)25&/$66:,'( 35(/,0,1$5<,1-81&7,21 
 

/25(77$/<1&+86$WWRUQH\

 'DWH-XQH

 *HQHUDO-8$132681$'LUHFWRU  ([HFXWLYH2IILFHIRU,PPLJUDWLRQ

  

7LPHDP -XGJH-HVXV*%HUQDO

5HYLHZ-(+-2+16216HFUHWDU\  'HSDUWPHQWRI+RPHODQG6HFXULW\  6$5$+56$/'$f$'LUHFWRU

 







,PPLJUDWLRQDQG&XVWRPV(QIRUFHPHQW 

 ,&('$9,'-(11,1*6)LHOG  2IILFH'LUHFWRU/RV$QJHOHV)LHOG

  



2IILFHRI,&(-$0(6-$1(&.$ :DUGHQ$GHODQWR'HWHQWLRQ)DFLOLW\

 &+5,67,1$+2//$1'-DLO

   

 

$GPLQLVWUDWRU6DQWD$QD&LW\-DLO &$5/2652-$&KLHI6DQWD$QD&LW\ 'HSDUWPHQW-21%5,**6&DSWDLQ

   



2UDQJH&RXQW\6KHULII¶V'HSDUWPHQW 2&6'0,.(.58(*(5&DSWDLQ

 2&6'6$1'5$+87&+(16

   

 25'(5*5$17,1*3/$,17,))63(7,7,21(56¶027,21)25&/$66:,'(
35(/,0,1$5<,1-81&7,21

Case5:16-cv-00620-JGB-KK Document 85 Filed 11/10/16 Page 2 of 5 Page ID #:1546

 

6KHULII2UDQJH&RXQW\LQWKHLURIILFLDO FDSDFLW\RQO\

  









'HIHQGDQWV5HVSRQGHQWV

 







 0,&+$(/7$1



PWDQ#DFOXRUJ -8'<5$%,129,7=



MUDELQRYLW]#DFOXRUJ $0(5,&$1&,9,//,%(57,(6)281'$7,21



,00,*5$176¶5,*+76352-(&7 %URDG6WUHHWWK)ORRU



1HZ<RUN1< 7HOHSKRQH



)DFVLPLOH 



67(3+(1.$1*6%1 VNDQJ#DFOXRUJ



$0(5,&$1&,9,//,%(57,(6)281'$7,21 ,00,*5$176¶5,*+76352-(&7



'UXPP6WUHHW 6DQ)UDQFLVFR&$



7HOHSKRQH )DFVLPLOH



 0$77+(:6/2$16%1



0DWWKHZ6ORDQ#VNDGGHQFRP '28*/$6$60,7+6%1



'RXJODV6PLWK#VNDGGHQFRP :,167213+6,$26%1



:LQVWRQ+VLDR#VNDGGHQFRP *5$<&(6)5,1.6%1



*UD\FH)ULQN#VNDGGHQFRP '(921/+(,16%1



'HYRQ+HLQ#VNDGGHQFRP 0$77+(:('(/*$'26%1



0DWWKHZ'HOJDGR#VNDGGHQFRP 6NDGGHQ$USV6ODWH0HDJKHU )ORP//3



6RXWK*UDQG$YHQXH6XLWH /RV$QJHOHV&DOLIRUQLD



7HOHSKRQH )DFVLPLOH

 



A ttorneys for Plaintiffs-Petitioners DGPLWWHGpro hac vice



 





 25'(5*5$17,1*3/$,17,))63(7,7,21(56¶027,21)25&/$66:,'(
35(/,0,1$5<,1-81&7,21

Case 5:16-cv-00620-JGB-KK Document 85 Filed 11/10/16 Page 3 of 5 Page ID #:1547 



25'(5



7KH&RXUWKDVFRQVLGHUHGWKHSDUWLHV¶EULHILQJHYLGHQFHDQGDUJXPHQWVDV

 ZHOODVWKHDXWKRULWLHVFLWHGLQVXSSRUWRIWKHLUSRVLWLRQV8SRQGXHFRQVLGHUDWLRQWKH

 &RXUWKHUHE\*5$1763ODLQWLIIV3HWLWLRQHUV¶³3ODLQWLIIV´0RWLRQIRUD3UHOLPLQDU\

 ,QMXQFWLRQ'HIHQGDQWV5HVSRQGHQWV³'HIHQGDQWV´DQGWKHLUDJHQWVHPSOR\HHV

 DVVLJQVDQGDOOWKRVHDFWLQJLQFRQFHUWZLWKWKHPDUHHQMRLQHGDVIROORZV

 , 3URFHGXUHVIRU,&(&XVWRG\'HWHUPLQDWLRQV,-&XVWRG\



5HGHWHUPLQDWLRQVDQG%,$5HYLHZ

 )RUDOOQRQFLWL]HQVGHWDLQHGXQGHU86&DLQWKH&HQWUDO



'LVWULFWRI&DOLIRUQLDWKH³'LVWULFW´DIWHUWKHGDWHRIWKLV2UGHU86,PPLJUDWLRQ 

DQG&XVWRPV(QIRUFHPHQW³,&(´DQGWKH([HFXWLYH2IILFHRI,PPLJUDWLRQ5HYLHZ 

³(2,5´ZKHQVHWWLQJUHGHWHUPLQLQJDQGRUUHYLHZLQJWKHWHUPVRIDQ\SHUVRQ¶V 

UHOHDVHPXVWDFRQVLGHUWKHSHUVRQ¶VILQDQFLDODELOLW\WRSD\DERQGEQRWVHW 

ERQGDWDJUHDWHUDPRXQWWKDQWKDWQHHGHGWRHQVXUHWKHSHUVRQ¶VDSSHDUDQFHDQGF 

FRQVLGHUZKHWKHUWKHSHUVRQPD\EHUHOHDVHGRQDOWHUQDWLYHFRQGLWLRQVRI 

VXSHUYLVLRQDORQHRULQFRPELQDWLRQZLWKDORZHUERQGDPRXQWWKDWDUHVXIILFLHQWWR 

PLWLJDWHIOLJKWULVN 
 :LWKLQVHYHQGD\VRIWKLV2UGHU'HIHQGDQWVZLOOPHHWDQGFRQIHUZLWK 

3ODLQWLIIV¶FRXQVHO³&ODVV&RXQVHO´DQGFRQWLQXHWRFRQIHUWKHUHDIWHUZLWK&ODVV 

&RXQVHOLQJRRGIDLWKWRGHYHORSDQGDJUHHWRWKHIROORZLQJ 
D JXLGHOLQHVIRU,&(DQGWKH,PPLJUDWLRQ-XGJHV³,-V´WRDSSO\LQ 

GHWHUPLQLQJDQLQGLYLGXDO¶VILQDQFLDODELOLW\WRSD\DERQG 
E LQVWUXFWLRQVWRDOO,&(RIILFHUVZKRFRQGXFWLQLWLDOFXVWRG\ 

GHWHUPLQDWLRQVXQGHU6HFWLRQDDQGWRDOO,-VLQWKH'LVWULFW 

WKDWLQIRUPWKHPRIWKHUHTXLUHPHQWVRIWKLV2UGHULQFOXGLQJWKH 

JXLGHOLQHVGHYHORSHGLQ3DUDJUDSKDDERYHDQG 
F DQRWLFHIRUDOOFODVVPHPEHUVFXUUHQWO\GHWDLQHGLQWKH'LVWULFW 

VXPPDUL]LQJWKHUHTXLUHPHQWVRIWKLV2UGHULQFRQQHFWLRQZLWK





25'(5*5$17,1*3/$,17,))63(7,7,21(56¶027,21)25&/$66:,'(

35(/,0,1$5<,1-81&7,21



Case 5:16-cv-00620-JGB-KK Document 85 Filed 11/10/16 Page 4 of 5 Page ID #:1548 



WKHLUXSFRPLQJFXVWRG\UHGHWHUPLQDWLRQKHDULQJVSXUVXDQWWRWKLV



2UGHU



 $VVRRQDVSUDFWLFDEOHEXWLQDQ\HYHQWQRODWHUWKDQWKLUW\GD\VDIWHU

 WKLVRUGHU'HIHQGDQWVVKDOO



D LVVXHWKHLQVWUXFWLRQVGHYHORSHGLQ3DUDJUDSKEDERYH



LQFOXGLQJWKHJXLGHOLQHVGHYHORSHGLQ3DUDJUDSKDDERYHWR



DOO,&(RIILFHUVZKRFRQGXFWLQLWLDOFXVWRG\GHWHUPLQDWLRQVXQGHU



6HFWLRQDDQGWRDOO,-VLQWKH'LVWULFWDQG



E VHQGWKHQRWLFHGHYHORSHGLQ3DUDJUDSKFDERYHWRDOOFODVV



PHPEHUVFXUUHQWO\GHWDLQHGLQWKH'LVWULFW



 'HIHQGDQWVZLOOQRWLI\&ODVV&RXQVHORIWKHGDWHDQGORFDWLRQRIHDFK

 QHZFXVWRG\UHGHWHUPLQDWLRQKHDULQJVHWSXUVXDQWWRWKLV2UGHUDWOHDVWVHYHQGD\VLQ

 DGYDQFHRIWKHKHDULQJ



 :LWKLQGD\VRIWKLVRUGHUWKH(2,5ZLOOSURYLGHHDFKFODVVPHPEHU

 FXUUHQWO\GHWDLQHGLQWKH'LVWULFWZLWKDQHZFXVWRG\UHGHWHUPLQDWLRQKHDULQJZKHUH

 WKH,-GHFLGHVZKHWKHUWKHFODVVPHPEHUVKRXOGEHUHOHDVHGRQKLVRUKHURZQ

 UHFRJQL]DQFHRUUHOHDVHGRQDPRQH\ERQGDQGRURWKHUFRQGLWLRQVRIVXSHUYLVLRQ

 :KHQVHWWLQJDFODVVPHPEHU¶VWHUPVRIUHOHDVHWKH,-PXVWFRPSO\ZLWK3DUDJUDSK

 RIWKLV2UGHU1RWKLQJLQWKLV2UGHUSUHYHQWVDFODVVPHPEHUIURPVHHNLQJD

 FRQWLQXDQFHWRSUHSDUHIRUKLVRUKHUKHDULQJ



 :KHUHDFODVVPHPEHURUWKHJRYHUQPHQWDSSHDOVWKH,-¶VFXVWRG\

 UHGHWHUPLQDWLRQWRWKH%RDUGRI,PPLJUDWLRQ$SSHDOV³%,$´WKH%,$ZLOO

 GHWHUPLQHZKHWKHUWKH,-KDVSURSHUO\SHUIRUPHGWKHDQDO\VLVVHWIRUWKLQ3DUDJUDSK

 ZKLFKLVUHTXLUHGE\86&D

 ,, 5HSRUWLQJ5HTXLUHPHQWV



 :LWKLQVL[W\GD\VRIWKLV2UGHU'HIHQGDQWVVKDOOVXEPLWXQGHUVHDODQG

 VHUYHRQ&ODVV&RXQVHODVWDWXVUHSRUWGHVFULELQJWKHVWHSVWDNHQWRWLPHO\LGHQWLI\DOO




 25'(5*5$17,1*3/$,17,))63(7,7,21(56¶027,21)25&/$66:,'(
35(/,0,1$5<,1-81&7,21

Case 5:16-cv-00620-JGB-KK Document 85 Filed 11/10/16 Page 5 of 5 Page ID #:1549

 FODVVPHPEHUVDQGHQVXUHWKDWWKH\UHFHLYHFXVWRG\UHGHWHUPLQDWLRQVDVUHTXLUHGE\

 WKLV2UGHU



 ,QWKDWUHSRUW'HIHQGDQWVVKDOOVXEPLWDOLVWFRQWDLQLQJIRUHDFKFODVV

 PHPEHUFXUUHQWO\GHWDLQHGLQWKH'LVWULFW



x 1DPH$OLHQ1XPEHUDQG'HWHQWLRQ)DFLOLW\



x 'DWHERRNHGLQWR,&(FXVWRG\



x )RUDQ\FXVWRG\GHWHUPLQDWLRQVE\,&(RU(2,5SULRUWRWKLV



2UGHUWKHGDWHDQGRXWFRPHRIWKHGHWHUPLQDWLRQLQFOXGLQJWKH



DPRXQWRIDQ\ERQGVHWDQGZKDWRWKHUFRQGLWLRQVRIVXSHUYLVLRQ



LIDQ\ZHUHLPSRVHG



x )RUDQ\QHZFXVWRG\UHGHWHUPLQDWLRQKHDULQJVE\(2,5



FRQGXFWHGSXUVXDQWWRWKLV2UGHUWKHGDWH,-DQGRXWFRPHRIWKH



GHWHUPLQDWLRQLQFOXGLQJZKHWKHUWKHFODVVPHPEHUZDVRUGHUHG



UHOHDVHGRQUHFRJQL]DQFHWKHDPRXQWRIDQ\ERQGVHWDQGZKDW



RWKHUFRQGLWLRQVRIVXSHUYLVLRQLIDQ\ZHUHLPSRVHG



x )RUDQ\DSSHDORIDQ,-FXVWRG\GHFLVLRQFRQGXFWHGSXUVXDQWWR



WKLV2UGHUWKHGDWHRIWKHDSSHDOWKHGDWHRIWKH%,$GHFLVLRQ



DQGWKHRXWFRPHRIWKHDSSHDOLQFOXGLQJZKHWKHUWKHLQGLYLGXDO



ZDVRUGHUHGUHOHDVHGRQUHFRJQL]DQFHWKHDPRXQWRIDQ\ERQG



VHWDQGZKDWRWKHUFRQGLWLRQVRIVXSHUYLVLRQLIDQ\ZHUH



LPSRVHGDQG



x ,IERQGZDVVHWZKHWKHUWKHFODVVPHPEHUSRVWHGERQGDQGWKH



GDWHWKHFODVVPHPEHUSRVWHGERQGLIDSSOLFDEOH



 '$7('NBBoBvBeBmBbBeBrB1B0B 

7+(+2125$%/(-(686*%(51$/ 81,7('67$7(6',675,&7&2857







25'(5*5$17,1*3/$,17,))63(7,7,21(56¶027,21)25&/$66:,'(

35(/,0,1$5<,1-81&7,21

 
 Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 1 of 53

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

XOCHITL HERNANDEZ, for themselves and on behalf of a class of similarly-situated individuals; CESAR MATIAS, for themselves and on behalf of a class of similarlysituated individuals,
Plaintiffs-Appellees,
v.
JEFFERSON B. SESSIONS III, Attorney General; JAMES MCHENRY, Acting Director, Executive Office for Immigration Review; ELAINE C. DUKE, Acting Secretary, Department of Homeland Security; THOMAS D. HOMAN, Acting Director, Immigration and Customs Enforcement (ICE); DAVID JENNINGS, Los Angeles Field Office Director of ICE; JAMES JANECKA, Warden, Adelanto Detention Facility; CHRISTINA HOLLAND, Jail Administrator, Santa Ana City Jail; CARLOS ROJA, Chief, Santa Ana City Department; JON BRIGGS, Captain, Orange County Sheriff’s Department; MIKE KREUGER, Captain, Orange County Sheriff’s

No. 16-56829
D.C. No. 5:16-cv-00620-
JGB-KK
OPINION

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 2 of 53

2

HERNANDEZ V. SESSIONS

Department; SANDRA HUTCHENS, Sheriff, Orange County,
Defendants-Appellants.

Appeal from the United States District Court for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Argued and Submitted July 11, 2017 Pasadena, California
Filed October 2, 2017
Before: Stephen Reinhardt, Ferdinand F. Fernandez, and Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Reinhardt; Partial Concurrence and Partial Dissent by
Judge Fernandez

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 3 of 53

HERNANDEZ V. SESSIONS

3

SUMMARY*

Immigration
The panel affirmed the district court’s order granting a preliminary injunction in favor of Plaintiffs, a class of noncitizens in removal proceedings who are detained under 8 U.S.C. § 1226(a) in the Central District of California and are unable to afford the bond set by immigration officials.
The panel held that 8 U.S.C. §§ 1226(e) and 1252(a)(2)(B), which restrict judicial review of certain discretionary immigration decisions, did not bar jurisdiction of Plaintiffs’ claim that the discretionary process itself is constitutionally flawed. The panel also held that the district court did not err in waiving the prudential requirement that Plaintiffs exhaust their administrative remedies.
The panel held that the district court did not abuse its discretion in granting a preliminary injunction requiring immigration officials when making bond determinations to, inter alia, consider (1) financial ability to obtain bond and (2) alternative conditions of release.
Concurring in part and dissenting in part, Judge Fernandez agreed that the government must consider financial ability and alternative conditions of supervision, a requirement he found to be essentially prohibitory. However, Judge Fernandez dissented as to the breadth of the injunction with respect to its mandatory terms requiring the
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 4 of 53

4

HERNANDEZ V. SESSIONS

government to conduct new bond hearings within 45 days for those who are currently detained and requiring the government to consult with class counsel to develop and agree to guidelines.

COUNSEL
Sherease Rosalyn Pratt (argued), Joseph Hardy, and Adrienne Zack, Trial Attorneys; Colin A. Kisor, Deputy Director; William C. Peachey, Director; Chad A. Readler, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.
Michael Kaufman (argued) and Ahilan T. Arulanantham, ACLU Foundation of Southern California, Los Angeles, California; Michael Tan and Judy Rabinovitz, ACLU Foundation Immigrants’ Rights Project, New York, New York; Stephen B. Kang, ACLU Foundation Immigrants’ Rights Project, San Francisco, California; Matthew E. Sloan, Douglas A. Smith, Devon L. Hein, Matthew E. Delgado, Michael D. Hidalgo, and John C. Korevec, Skadden Arps Slate Meagher & Flom LLP, Los Angeles, California; for Plaintiffs-Appellees.
John L. Ewald, Kelly M. Daley, Jasmine M. Owens, and Ned Hirschfeld, Orrick Herrington & Sutcliffe LLP, New York, New York; Linda Klein, American Bar Association, Chicago, Illinois; for Amicus Curiae American Bar Association. Alan E. Schoenfeld, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York; Leon T. Kenworthy and Webb Lyons, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; for Amici Curiae Nine Retired

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 5 of 53

HERNANDEZ V. SESSIONS

5

Immigration Judges and Board of Immigration Appeals Members.

Peter R. Afrasiabi and Oscar M. Orozco-Botello, Newport Beach, California; Anne Lai, University of California, Irvine School of Law—Immigrant Rights Clinic, Irvine, California; for Amici Curiae University of California, Irvine School of Law—Immigrant Rights Clinic; Asian Americans Advancing Justice—Los Angeles; Brandeis Human Rights Advocacy Program; Center for Gender & Refugee Studies; Coalition to Abolish Slavery & Trafficking; Columbia Law School Immigrants’ Rights Clinic; Community Legal Services in East Palo Alto; Cornell Law School’s Asylum and Convention Against Torture Appellate Clinic; Council on American-Islamic Relations; Immigrant Defenders Law Center, Los Angeles; Las Crisantemas; Loyola Immigrant Justice Clinic; National Day Laborer Organizing Network; New York Law School, Safe Passage Project Clinical Class; Northwest Immigrant Rights Project; Public Counsel; Rapid Response Network; Florence Immigrant and Refugee Rights Project; University of California Davis School of Law Immigration Law Clinic; University of California, Irvine School of Law Immigrant Rights Clinic; University of Colorado Criminal/Immigration Defense Clinic; University of Nevada, Las Vegas, Immigration Clinic; and Western State College of Law Immigration Clinic.

Peter H. Kang, Sidley Austin LLP, Palo Alto, California; Sue Wang, Kelly A. Rosencrans, and Alex Baxter, Sidley Austin LLP, San Francisco, California; Jayashri Srikantiah, Immigrants’ Rights Clinic, Stanford Law School, Stanford, California; for Amici Curiae National Association of Criminal Defense Lawyers and Center for Legal and Evidence-Based Practices.

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 6 of 53

6

HERNANDEZ V. SESSIONS

OPINION
REINHARDT, Circuit Judge:
“Courts have confronted, in diverse settings, the age-old problem of providing equal justice for poor and rich, weak and powerful alike.”1 In this case, we reaffirm our commitment to this principle of fairness for all as embodied in the Due Process Clause of the Fifth Amendment. Here, it prohibits our government from discriminating against the poor in providing access to fundamental rights, including the freedom from physical restraints on individual liberty.
Deprivations of physical liberty are a pervasive feature of our current system of immigration enforcement. While the temporary detention of non-citizens may sometimes be justified by concerns about public safety or flight risk, the government’s discretion to incarcerate non-citizens is always constrained by the requirements of due process: no person may be imprisoned merely on account of his poverty.2
In the present case, the government appeals from the district court’s order entering a class-wide preliminary injunction in favor of Plaintiffs, a class of non-citizens in removal proceedings who are detained under 8 U.S.C. § 1226(a) in the Central District of California. The government has already determined that the class members are neither dangerous nor enough of a flight risk to require

1 M.L.B. v. S.L.J., 519 U.S. 102, 110 (1996) (quoting Griffin v. Illinois, 351 U.S. 12, 16 (1956)) (quotation marks omitted).
2 Bearden v. Georgia, 461 U.S. 660, 671 (1983).

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 7 of 53

HERNANDEZ V. SESSIONS

7

detention without bond.3 The class members nonetheless remain detained because they are unable to afford bond in the amount set by the immigration officials.

Plaintiffs sought injunctive relief in the district court against the government’s policy of failing to require immigration officials to consider financial circumstances and alternative conditions of release at bond hearings. Plaintiffs argued that the policy violated their constitutional and statutory rights under the Due Process Clause of the Fifth Amendment, the Fifth Amendment’s equal protection guarantee, the Excessive Bail Clause of the Eighth Amendment, and 8 U.S.C. § 1226(a).4

The district court granted a preliminary injunction requiring immigration officials when making bond determinations to, inter alia, consider (1) financial ability to obtain bond and (2) alternative conditions of release.

3 Plaintiffs describe the class as “individuals in removal proceedings whom immigration officials have determined are not a danger to the community or a flight risk that requires detention, and therefore have ordered their release on bond.” The government responds by pointing out that “[a] bond order merely establishes an alien’s eligibility for release from detention, contingent on the non-negotiable condition that they post a bond to alleviate their higher risk of absconding.” There is no actual disagreement between the parties on this point. The fact that ICE or an IJ has determined that a non-citizen is eligible for release on bond shows that he is not so great a flight risk as to require detention without bond. The question then remains: what amount of bond is reasonably likely to ensure the non-citizen’s appearance and how should that amount be determined?
4 The § 1226(a) claim is presented exclusively in terms of constitutional avoidance, a doctrine which is inapplicable here. Cf. Zadvydas v. Davis, 533 U.S. 678, 689 (2001).

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 8 of 53

8

HERNANDEZ V. SESSIONS

Because the district court did not abuse its discretion in granting the injunction, we affirm.
LEGAL BACKGROUND
Plaintiffs are a class of non-citizens detained pursuant to 8 U.S.C. § 1226(a) on a bond set by a Department of Homeland Security (DHS) or Immigration and Customs Enforcement (ICE)5 official or an Immigration Judge (IJ) in the Central District of California. Under § 1226(a), the Attorney General has “general, discretionary” authority to detain a non-citizen “pending a decision on whether the alien is to be removed from the United States.” Casas-Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942, 948 (9th Cir. 2008) (quoting 8 U.S.C. § 1226(a)). Section 1226(a) also authorizes the Attorney General, in his discretion, to release these non-citizen detainees “on bond of at least $1,500” or “conditional parole.” 8 U.S.C. § 1226(a)(2).
When a non-citizen is detained pursuant to § 1226(a), “the DHS district director makes an initial custody determination and may allow the alien’s release on bond.” Prieto-Romero v. Clark, 534 F.3d 1053, 1058 (9th Cir. 2008) (citing 8 C.F.R. § 236.1(d)).6 “If the alien objects to the director’s bond determination, he may request a bond redetermination hearing before an IJ at any time before the issuance of an administratively final order of removal.” Id. (citing 8 C.F.R. §§ 236.1(d), 1003.19(c)). At this stage, the

5 ICE is a subdivision of DHS.
6 The record indicates that these determinations are delegated to ICE Deportation Officers who make them based, at least in part, on standardized “Risk Classification Assessments” from which they may require supervisory approval to deviate.

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 9 of 53

HERNANDEZ V. SESSIONS

9

burden is on the non-citizen to “establish to the satisfaction of the Immigration Judge . . . 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.” In re Guerra, 24 I. & N. Dec. 37, 38 (BIA 2006).7
If the DHS officer or IJ determines that the non-citizen does not pose a danger and is likely to appear at future proceedings, then he may release the non-citizen on bond or other conditions of release. See Prieto-Romero, 534 F.3d at 1058; 8 C.F.R. §§ 236.1(d), 1003.19. If the non-citizen disagrees with the IJ’s bond determination or wishes to challenge the amount of bond set by the IJ, he may also

7 The BIA has identified nine nonexclusive factors (the “Guerra factors”) to consider when determining whether a non-citizen is entitled to release on bond, and if so, the amount of such bond:
(1) whether the alien has a fixed address in the United States; (2) the alien’s length of residence in the United States; (3) the alien’s family ties in the United States, and whether they may entitle the alien to reside permanently in the United States in the future; (4) the alien’s employment history; (5) the alien’s record of appearance in court; (6) the alien’s criminal record, including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses; (7) the alien’s history of immigration violations; (8) any attempts by the alien to flee prosecution or otherwise escape from authorities; and (9) the alien’s manner of entry to the United States.
In re Guerra, 24 I. & N. Dec. at 40.

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 10 of 53

10

HERNANDEZ V. SESSIONS

“appeal the IJ’s bond decision to the BIA.” Prieto-Romero, 534 F.3d at 1058 (citing 8 C.F.R. § 236.1(d)(3)).8
At these initial bond determinations, the government currently does not require ICE or IJs to consider a noncitizen’s financial circumstances in setting the amount of a bond or whether non-monetary alternative conditions of release would suffice to ensure his future appearance. In fact, according to the declaration of one legal services provider, some IJs refuse to consider a person’s financial circumstances, even when these circumstances are raised by

8 Under our precedent, the government may not detain a non-citizen under § 1226(a) for “a prolonged period without providing him a neutral forum in which to contest the necessity of his continued detention.” Casas-Castrillon, 535 F.3d at 949. Therefore, we have held 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.” Rodriguez v. Robbins, 804 F.3d 1060, 1089 (9th Cir. 2015) (Rodriguez III), cert. granted sub nom. Jennings v. Rodriguez, 136 S. Ct. 2489 (2016) (internal citation omitted). At these “Rodriguez hearings,” unlike at the initial bond determination, “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.” Rodriguez III, 804 F.3d at 1087.
The Supreme Court granted the government’s petition for writ of certiorari in Rodriguez III, and on June 26, 2017, the Supreme Court restored Jennings v. Rodriguez, No. 15-1204, to the calendar for reargument during the October 2017 term. The primary issue in the Supreme Court’s review of Rodriguez III is whether the non-citizens are entitled to the recurring hearings at all; by contrast, the parties agree that the initial hearings at issue in this case are required by statute. Moreover, the Supreme Court’s review of our holding in Rodriguez III that noncitizens are entitled to certain unrelated additional procedural protections during the recurring bond hearings after prolonged detention does not affect our consideration of the lesser constitutional procedural protections sought at the initial bond hearings in this case.

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 11 of 53

HERNANDEZ V. SESSIONS

11

a detainee’s counsel. In this case, Plaintiffs sought a preliminary injunction against the government’s policy of failing to require DHS and IJs to consider these factors in setting bond.9
FACTUAL BACKGROUND
A. Plaintiff Hernandez
Xochitl Hernandez was born in Mexico in 1976. She immigrated to the United States in the late 1980s at approximately age 13. She has five children and four grandchildren, all of whom are United States citizens. Before her arrest, Hernandez lived with family members in a rented house in Los Angeles. She avers that her family has few assets or savings.
On February 24, 2016, Hernandez was visiting a friend’s house. Los Angeles Police Department (LAPD) and ICE officers, who were apparently searching for a suspected gang member, arrived at the house. Hernandez was detained and
9 Plaintiffs’ suit challenges a total of four policies and practices relating to initial custody determinations: (1) “immigration officials are not required to consider an immigration detainee’s financial ability to pay when setting a monetary bond”; (2) “when they do set a bond amount, immigration officials require noncitizens to post the full cash bond amount to be released,” instead of permitting them to post other assets as collateral; (3) “immigration officials are not required to consider whether alternative conditions of supervision (such as electronic monitoring or periodic reporting requirements), alone or in combination with a lower bond amount, would be sufficient to mitigate flight risk”; and (4) the government does “not recognize a person’s financial inability to post bond, despite having made good faith efforts to do so, as a ‘changed circumstance’ that warrants a new bond hearing.” They sought preliminary relief, however, only with respect to (1) consideration of financial circumstances and (3) alternative conditions of release.

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 12 of 53

12

HERNANDEZ V. SESSIONS

taken to an LAPD station, where she was questioned. She was not charged with any crime.
Later that day, Hernandez was transferred to ICE custody, where an officer questioned her about her identity and immigration history. Hernandez declared that the ICE officer did not mention release on bond, nor did he ask her about her financial circumstances or what bond amount she could afford. That same day, DHS served her with a Notice to Appear, charging her with inadmissibility to the United States under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United States without admission or parole. An ICE officer determined that Hernandez should be detained without bond at the Adelanto Detention Center, pending her removal proceedings.
About two weeks later, Hernandez appeared pro se for a bond hearing in Immigration Court. The IJ did not ask any questions about her financial circumstances during the hearing, and Hernandez did not request that he consider her ability to obtain a bond in assessing the amount to be set.
The IJ then issued a written bond decision ordering Hernandez’s release upon payment of a $60,000 bond. He determined that Hernandez was not a danger to the community and that a bond would be sufficient to mitigate any risk of flight. He also conditioned her release on refraining from entering or coming within a quarter-mile of three gang-related addresses and from associating or contacting any member of the La Mirada street gang. Hernandez avers that she and her family could not afford to pay a $60,000 bond.
About a month later, Hernandez, again appearing pro se, requested that the IJ reconsider her bond amount. The IJ denied her request for reconsideration because there were no

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 13 of 53

HERNANDEZ V. SESSIONS

13

“changed circumstances.” In addition, the IJ remarked that he “did consider ability to pay” in his prior bond determination, but there were “significant issues” in her case that required bond in the amount he had set.
On August 23, 2016, Hernandez appeared, now with counsel, for a bond hearing pursuant to Rodriguez III before a different IJ. Hernandez testified that she and her family had limited financial resources and indicated that she could only afford a $1,500 bond at most. She also expressed her willingness to be released under alternative conditions, such as an ankle monitor.
The next week, the IJ ordered Hernandez released from custody upon filing of a $5,000 bond and enrollment in the “Alternatives to Detention” program. The IJ’s decision did not discuss Hernandez’s ability to obtain a bond in the established amount. Hernandez was subsequently released upon filing a bond and was placed on ankle monitoring.10
A few weeks later, the BIA sustained Hernandez’s appeal of her first $60,000 bond, vacated the IJ’s decision on the ground that the bond was excessive, and remanded for further proceedings. The BIA did not address Hernandez’s ability to post bond, despite the fact that she raised that issue on appeal.

10 Hernandez could not afford even the $5,000 bond. She obtained her release because a community organization, the National Day Labor Organizing Network, raised enough money to post her bond.

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 14 of 53

14

HERNANDEZ V. SESSIONS

B. Plaintiff Matias
Cesar Matias was born in Honduras on September 9, 1978.11 Matias is a gay man who fled Honduras to escape persecution on account of his sexual orientation. He has resided in Los Angeles since May 2005, when he first entered the United States. Prior to his detention, he worked as a hairstylist and in a clothing factory. He avers that he spent all of his earnings on basic necessities and has no savings or any other significant assets. At some point, he suffered a conviction for possession of a controlled substance and was given a deferred judgment for driving without a license. He was also arrested twice, but not convicted, on prostitution charges.
On March 29, 2012, Matias was taken into ICE custody and was interviewed by an ICE officer at a processing center in downtown Los Angeles. When the ICE officer informed him that he would be detained, Matias asked whether he could be released on bond. The officer responded that he could ask the IJ, without asking Matias any questions about his financial resources or the amount of bond he could afford. That same day, ICE issued a Notice to Appear, initiating removal proceedings against Matias.
Seven months later, Matias appeared for a bond hearing before an IJ. During the hearing, the IJ did not ask any questions about Matias’s ability to obtain a bond or his financial circumstances. At the end of the hearing, the IJ set bond at $3,000.

11 The government states that Matias’s “true identity, including his name and date of birth, citizenship, and nationality, are unknown.” Matias has presented false documents and testimony to police, ICE officials, and border officials regarding his name and nationality.

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 15 of 53

HERNANDEZ V. SESSIONS

15

Three months after the bond hearing, Matias requested to be released from detention to retrieve documents that would help his case. The IJ refused to reduce his bond and stated that the bond amount was “pretty generous.” The IJ also noted that she could not consider reducing the bond amount absent a formal motion.
Eighteen months after denying that release request, the IJ conducted another bond hearing on Matias’s motion. At that hearing, she stated that Matias’s bond was “reasonable” and ordered that it remain at $3,000, without inquiring as to Matias’s financial circumstances or indicating that she considered alternative conditions of release. When asked by the Immigration Judge if he wanted to appeal, Matias responded: “No. I prefer to be detained.”
Sixteen months later, the IJ conducted another bond hearing for Matias. The IJ again did not question Matias about his financial circumstances, and ordered that bond remain at $3,000.12
Finally, more than four years after he was first detained, Matias was released from ICE custody when a local community organization, Community Initiatives for Visiting Immigrants in Confinement, raised enough money for him to post his bond.
PROCEDURAL BACKGROUND
On April 6, 2016, Plaintiffs filed a class action complaint seeking habeas, declaratory, and injunctive relief against the

12 There is no evidence in the record of either Hernandez’s or Matias’s case that ICE or the IJ considered alternative conditions of release. The government does not contend that ICE or the IJs considered such alternatives.

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 16 of 53

16

HERNANDEZ V. SESSIONS

Attorney General, the Director of the Executive Office for Immigration Review (EOIR), the Secretary of DHS, the Director of ICE, the Director of the Los Angeles Field Office of ICE, the Warden of the Adelanto Detention Facility, the Jail Administrator of Santa Ana City Jail, the Chief of the Santa Ana City Department, two Captains of the Orange County Sheriff’s Department, and the Orange County Sheriff. Plaintiffs contended that the government’s bondsetting policies and practices violated: (1) the Due Process Clause of the Fifth Amendment; (2) their equal protection rights under the Fifth Amendment; (3) the Excessive Bail Clause of the Eighth Amendment; and (4) 8 U.S.C. § 1226(a).
On April 22, 2016 Plaintiffs filed a Motion for Class Certification pursuant to Federal Rule of Civil Procedure 23, seeking to certify a class encompassing “all individuals who are or will be detained pursuant to 8 U.S.C. § 1226(a) on a bond set by an [ICE] officer or an [IJ] in the Central District of California.”
On May 19, Plaintiffs filed a Motion for Preliminary Injunction requiring, inter alia, immigration officials to “consider ability to pay when setting a bond amount and release on alternative conditions where appropriate.” On June 10, Defendants filed a motion to dismiss for lack of jurisdiction and failure to state a claim. On August 22, the district court held a hearing on these three motions.
The district court denied Defendants’ motion to dismiss, granted Plaintiffs’ motion for class certification, and granted Plaintiffs’ motion for a preliminary injunction. In response to Defendants’ motion to dismiss, the district court waived the typical requirement that plaintiffs’ exhaust their administrative remedies regarding the challenged bond determinations because: (1) Plaintiff’s statutory and

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 17 of 53

HERNANDEZ V. SESSIONS

17

constitutional claims presented purely legal questions that did not require development of an administrative record; (2) waiver of exhaustion would “not encourage future habeas petitioners to bypass the administrative scheme” in light of the “discreteness of the legal questions presented”; and (3) BIA review of Plaintiffs’ claims would be futile because the BIA’ s position on whether consideration of ability to post bond is required is “already set.” The district judge also rejected Defendants’ arguments that 8 U.S.C. § 1226(e) and 8 U.S.C. § 1252(a)(2)(B) bar federal courts from exercising jurisdiction over Plaintiffs’ claims, holding that federal courts retain habeas jurisdiction over constitutional claims and claims raising questions of law under 28 U.S.C. § 2241. Finally, the district court rejected Defendants’ arguments that the named Plaintiffs’ lacked standing to seek injunctive relief because they had been released from custody after the action was filed because standing “is assessed as of the time an action was initiated and is unaffected by subsequent developments.” The district court also noted that the named plaintiffs could continue seeking relief on behalf of the class even after they were released from custody “because [their] claims are ‘transitory in nature and may otherwise evade review.’” Preap v. Johnson, 831 F.3d 1193, 1197 n.6 (9th Cir. 2016) (quoting Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1090–91 (9th Cir. 2011)).
Regarding Plaintiffs’ motion for a preliminary injunction, the district court concluded that Plaintiffs were likely to succeed on the merits of their challenges under the Due Process Clause, the Fifth Amendment’s equal protection guarantee, the Excessive Bail Clause, and 8 U.S.C. § 1226(a). The court found that Plaintiffs were likely to suffer irreparable harm as a result of the deprivation of their constitutional rights and that the balance of equities

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 18 of 53

18

HERNANDEZ V. SESSIONS

and public interest weighed in favor of granting a preliminary injunction. Therefore, it granted Plaintiffs’ motion.13
Under the terms of the preliminary injunction, ICE and IJs are required to consider, in all future hearings, a detainee’s financial circumstances in determining the amount of the bond to be set and to consider whether the person may be released on alternative conditions of supervision. The order further requires that the parties meet and confer in good faith to develop implementation guidelines and instructions for ICE and IJs, that the government submit a list of class members to Plaintiffs, and that the government conduct new bond hearings for current class members whose bonds were set before the order went into effect.
Defendants filed a notice of appeal and applied ex parte for a stay of all proceedings pending its appeal. After the district court denied the stay, the government renewed its application before this court, which granted it.14
STANDARD OF REVIEW
“We review the district court’s decision to grant or deny a preliminary injunction for abuse of discretion.” Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam) (citations omitted). “Our review is limited and deferential.” Id. The district court

13 The district court also granted Plaintiffs’ Motion for Class Certification, which is not at issue in this appeal.
14 We issued an order shortly before oral argument clarifying that the stay applied only to the preliminary injunction, rather than to “all district court proceedings.”

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 19 of 53

HERNANDEZ V. SESSIONS

19

abuses its discretion when it makes an error of law. Id. “We review the district court’s legal conclusions de novo, the factual findings underlying its decision for clear error.” K.W. ex rel. D.W. v. Armstrong, 789 F.3d 962, 969 (9th Cir. 2015) (citation omitted).
DISCUSSION
I.
We first address whether jurisdiction over Plaintiffs’ claims is proper. The government contends that the we lack jurisdiction for two reasons: (1) 8 U.S.C. §§ 1226(e) and 1252(a)(2)(B) bar federal court jurisdiction over the claims, and (2) the named Plaintiffs failed to exhaust their administrative remedies before pursuing relief in federal court. The government is wrong on both counts.
First, 8 U.S.C. §§ 1226(e) and 1252(a)(2)(B) do not bar jurisdiction over Plaintiffs’ claims. Section 1226(e) provides that:
The Attorney General’s discretionary judgment regarding the application of this section 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.

In other words, custody determinations within the discretion of the Attorney General are not subject to judicial review. Thus, we have held that § 1226(e) precludes jurisdiction over claims that an IJ, exercising his statutorily-delegated discretion, “set an excessively high bond amount.” Prieto-

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 20 of 53

20

HERNANDEZ V. SESSIONS

Romero, 534 F.3d at 1067. That provision does not, however, preclude “habeas jurisdiction over constitutional claims or questions of law.” Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011) (quoting Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011)). “[C]laims that the discretionary [bond] process itself was constitutionally flawed are cognizable in federal court on habeas because they fit comfortably within the scope of § 2241.” Singh, 638 F.3d at 1202 (citations omitted).
Similarly, 8 U.S.C. § 1252(a)(2)(B)(ii) restricts judicial review of the Executive branch’s discretionary decisions:
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review . . . any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.

8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added). “Like § 1226(e), § 1252(a)(2)(B)(ii) restricts jurisdiction only with respect to the executive’s exercise of discretion. It does not limit habeas jurisdiction over questions of law.” Singh, 638 F.3d at 1202 (emphasis added). Habeas jurisdiction over

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 21 of 53

HERNANDEZ V. SESSIONS

21

such legal and constitutional claims is proper only if they are “colorable,” i.e., “the claim must have some possible validity.” Torres-Aguilar v. I.N.S., 246 F.3d 1267, 1271 (9th Cir. 2001) (quotation marks omitted). “[A] petitioner may not create the jurisdiction that Congress chose to remove simply by cloaking an abuse of discretion argument in constitutional garb.” Id.
The government’s contention that Plaintiffs have attempted to create jurisdiction over a challenge to discretionary bond determinations “through the pretext of constitutional claims” mischaracterizes Plaintiffs’ challenge. They do not challenge the amount of their initial bonds as “excessive[]”, cf. Prieto-Romero, 534 F.3d at 1067; instead, like the petitioner in Singh, who challenged, inter alia, the constitutionality of the standard of proof applied in his Casas hearing, 638 F.3d at 1203, Plaintiffs in the present case claim that the “discretionary process itself was constitutionally flawed” at their initial bond determinations. Id. at 1202. Thus their claims are “cognizable in federal court on habeas,” id., despite the jurisdictional restrictions in §§ 1226(e) and 1252(a)(2)(B).
Second, the district court did not err in waiving the requirement that plaintiffs exhaust their administrative remedies before pursuing their claims in federal court. The exhaustion requirement is prudential, rather than jurisdictional, for habeas claims. Singh, 638 F.3d at 1203 n.3 (citing Arango Marquez v. I.N.S., 346 F.3d 892, 897 (9th Cir. 2003)). We may require prudential exhaustion when:
(1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement would encourage the deliberate bypass of the

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 22 of 53

22

HERNANDEZ V. SESSIONS

administrative

scheme;

and

(3) administrative review is likely to allow

the agency to correct its own mistakes and to

preclude the need for judicial review.

Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007) (citations omitted). If a petitioner fails to exhaust prudentially required administrative remedies, then “a district court ordinarily should either dismiss the petition without prejudice or stay the proceedings until the petitioner has exhausted remedies.” Leonardo, 646 F.3d at 1160. Nonetheless, even if the three Puga factors weigh in favor of prudential exhaustion, a court may waive the prudential exhaustion requirement if “administrative remedies are inadequate or not efficacious, pursuit of administrative remedies would be a futile gesture, irreparable injury will result, or the administrative proceedings would be void.” Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004) (citation and quotation marks omitted).
Here, after considering the Puga factors, the district court correctly decided to waive the prudential exhaustion requirement. First, an administrative appellate record is not necessary to resolve the purely legal questions presented by Plaintiffs’ challenge to the government’s policy of refusing to require ICE and IJs to consider financial circumstances and alternative conditions of release in bond determinations. Cf. Singh, 638 F.3d at 1203 n.3 (holding administrative record was not necessary to decide petitioner’s challenge to the constitutionality of procedures at Casas hearings).
Second, waiver of the prudential exhaustion requirement will not “encourage the deliberate bypass of the administrative scheme” in future cases, because, once the questions presented here are decided, they “should cease to

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 23 of 53

HERNANDEZ V. SESSIONS

23

arise.” Id. Any risk of deliberate bypass of administrative procedures is further reduced by the fact that district courts will only have jurisdiction in the “rare case[s]” where future plaintiffs allege a “colorable” constitutional or legal challenge to the government’s procedures. Torres-Aguilar, 246 F.3d at 1271; cf. El Rescate Legal Servs., Inc. v. Exec. Office of Immigration Review, 959 F.2d 742, 747 (9th Cir. 1991).
Third, we must consider whether “administrative review is likely to allow the agency to correct its own mistakes and to preclude the need for judicial review.” Noriega-Lopez v. Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003) (citation and quotation marks omitted). Regarding this third factor, however, “where the agency’s position on the question at issue appears already set, and it is ‘very likely’ what the result of recourse to administrative remedies would be, such recourse would be futile and is not required.” El Rescate, 959 F.2d at 747 (citation omitted). In the present case, the government has implicitly conceded that the BIA’s position on the question at issue is already set by acknowledging that, under Guerra, “no single factor is mandatory or dispositive.” Furthermore, as the district court noted, in several unpublished cases the BIA has concluded that an alien’s ability to pay the bond amount is not a relevant bond determination factor. See, e.g., In re Castillo-Cajura, 2009 WL 3063742, *1 (B.I.A. Sept. 10, 2009); In re SerranoCordova, 2009 Immig. Rptr. LEXIS 2444, *2 (B.I.A. June 17, 2009); In re Sandoval-Gomez, 2008 WL 5477710, *1 (B.I.A. Dec. 15, 2008); In re Castillo-Leyva, 2008 Immig. Rptr. LEXIS 10396, *1 (B.I.A. Sept. 18, 2008).15 These

15 Plaintiffs filed a redacted copy of another such BIA decision that is not available in the online databases. That decision was an appeal from a bond determination within the Central District of California, and is

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 24 of 53

24

HERNANDEZ V. SESSIONS

unpublished cases, along with Guerra’s failure to require consideration of financial circumstances, are sufficient evidence that the BIA’s position is set and that exhaustion would be futile.
There are no defects in our jurisdiction over this case.
II.
We now address whether the district court abused its discretion in granting Plaintiffs’ motion for a preliminary injunction. We conclude that it did not.
In order to obtain a preliminary injunction a plaintiff must establish (1) “that he is likely to succeed on the merits,” (2) “that he is likely to suffer irreparable harm in the absence of preliminary relief,” (3) “that the balance of equities tips in his favor,” and (4) “that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Under our “sliding scale” approach, “the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.” Pimentel v. Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012) (per curiam) (citations omitted).

dated April 3, 2017. According to the BIA, “an Immigration Judge is not required to consider an alien’s ability to pay when setting a bond.” We thus reject the government’s contention that the cases cited above do not reflect current policy as well as its speculation that the BIA “may decide to further clarify the Guerra standard.”

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 25 of 53

HERNANDEZ V. SESSIONS

25

A.
Plaintiffs are likely to succeed on the merits of their claim under the Due Process Clause.16 The Due Process Clause of the Fifth Amendment prohibits the Government from depriving individuals of their life, liberty, or property, without due process of law. U.S. Const. amend. V. In particular, “[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). These protections “appl[y] to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent,” and to immigration detention as well as criminal detention. Id. at 693.17
In the context of immigration detention, it is well-settled that “due process requires adequate procedural protections to ensure that the government’s asserted justification for physical confinement outweighs the individual’s

16 Although the district court also concluded that Plaintiffs were likely to succeed on the merits of their Fifth Amendment equal protection and Eighth Amendment Excessive Bail Clause claims and granted the injunction on the basis of all three constitutional claims, we ultimately affirm on the basis of the due process claim and therefore express no view as to the equal protection or Eighth Amendment claims.
17 Although the Supreme Court has described Congress’s power over the “policies and rules for exclusion of aliens” as “plenary,” see, e.g., Kleindienst v. Mandel, 408 U.S. 753, 769 (1972), and held that this court must generally “defer to Executive and Legislative Branch decisionmaking in that area,” Zadvydas, 533 U.S. at 695, it is wellestablished that the Due Process Clause stands as a significant constraint on the manner in which the political branches may exercise their plenary authority. Id.

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 26 of 53

26

HERNANDEZ V. SESSIONS

constitutionally protected interest in avoiding physical restraint.” Singh, 638 F.3d at 1203 (quoting CasasCastrillon, 535 F.3d at 950). The government has legitimate interests in protecting the public and in ensuring that noncitizens in removal proceedings appear for hearings, but any detention incidental to removal must “bear[] [a] reasonable relation to [its] purpose.” Zadvydas, 533 U.S. at 690 (quoting Jackson v. Indiana, 406 U.S. 715, 738 (1972)); see also Tijani v. Willis, 430 F.3d 1241, 1249 (9th Cir. 2005) (Tashima, J., concurring). Detention of an indigent “for inability to post money bail” is impermissible if the individual’s “appearance at trial could reasonably be assured by one of the alternate forms of release.” Pugh v. Rainwater, 572 F.2d 1053, 1058 (5th Cir. 1978) (en banc).
Given that the detainees have been determined to be neither dangerous nor so great a flight risk as to require detention without bond, the question before us is: Is consideration of the detainees’ financial circumstances, as well as of possible alternative release conditions, necessary to ensure that the conditions of their release will be reasonably related to the governmental interest in ensuring their appearance at future hearings?18 We conclude that the answer is yes.
A bond determination process that does not include consideration of financial circumstances and alternative release conditions is unlikely to result in a bond amount that is reasonably related to the government’s legitimate

18 By definition, an ICE officer or an IJ has already determined that the class members are not a danger to the community or so great a flight risk that no bond would secure their appearance; otherwise, they would simply be ineligible for release on bond and thus not a member of the class. See In re Guerra, 24 I. & N. Dec. at 38.

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 27 of 53

HERNANDEZ V. SESSIONS

27

interests. Since the government’s purpose in conditioning release on the posting of a bond in a certain amount is to “provide enough incentive” for released detainees to appear in the future, we cannot understand why it would ever refuse to consider financial circumstances: the amount of bond that is reasonably likely to secure the appearance of an indigent person obviously differs from the amount that is reasonably likely to secure a wealthy person’s appearance.19 Nor can we understand why the government would refuse to consider alternatives to monetary bonds that would also serve the same interest the bond requirement purportedly advances. This is especially true in light of the empirically demonstrated effectiveness of such conditions at meeting the government’s interest in ensuring future appearances. As the American Bar Association explains in its amicus brief, the Intensive Supervision Appearance Program—which relies on various alternative release conditions—resulted in a 99% attendance rate at all EOIR hearings and a 95% attendance rate at final hearings.
Setting a bond amount without considering financial circumstances or alternative conditions of release undermines the connection between the bond and the legitimate purpose of ensuring the non-citizen’s presence at future hearings. There is simply no way for the government

19 The government’s briefs mischaracterize the relief sought by Plaintiffs. Plaintiffs are not challenging the amount of their bonds, but instead contend that they are unconstitutionally detained without adequate procedures for setting bond unless ability to obtain a bond due to financial circumstances and the availability of alternative conditions of release are considered. The parties agree that due process requires only that “a bond . . . be reasonably calculated to assure an alien’s appearance at a future removal hearing,” but the government fails to explain how such a reasonable calculation can be made on a “case-by-case basis” if financial circumstances and alternative conditions are not considered.

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 28 of 53

28

HERNANDEZ V. SESSIONS

to know whether a lower bond or an alternative condition would adequately serve those purposes when it fails to consider those matters. Therefore, the government’s current policies fail to provide “adequate procedural protections” to ensure that detention of the class members is reasonably related to a legitimate governmental interest.
Our conclusion that due process likely requires consideration of financial circumstances and alternative conditions of release is reinforced by cases interpreting the dictates of due process in the criminal context. These cases confirm the common-sense proposition that when the government detains someone based on his or her failure to satisfy a financial obligation, the government cannot reasonably determine if the detention is advancing its purported governmental purpose unless it first considers the individual’s financial circumstances and alternative ways of accomplishing its purpose.
In Bearden v. Georgia, 461 U.S. 660 (1983), the Supreme Court held that it violates due process for a state to revoke an individual’s probation due to a failure to pay a fine or restitution without first considering the reasons for the failure to pay (including the probationer’s financial circumstances) and “alternatives to imprisonment” that might serve the state’s “interest in punishment and deterrence.” Id. at 672. By not considering those factors, states impermissibly risk imprisoning individuals “simply because, through no fault of [their] own, [they] cannot pay the fine.” Id. at 672–73.20 Such imprisonment would not

20 In Bearden, it was especially clear that the State’s revocation of probation was not sufficiently tailored to its legitimate interests in light of the fact that the decision to place the defendant on probation in the first place “reflect[ed] a determination by the sentencing court that the

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 29 of 53

HERNANDEZ V. SESSIONS

29

advance any legitimate governmental interest. See also Turner v. Rogers, 564 U.S. 431, 447–48 (2011) (noting that a state must demonstrate that an individual has the ability to pay child support before imprisoning him for civil contempt for failure to pay).
We have applied Bearden to hold that district judges must consider a defendant’s financial circumstances before applying a Guidelines enhancement based on a failure to pay outstanding fines and fees in a prior case. See United States v. Parks, 89 F.3d 570, 572 (9th Cir. 1996). As in Bearden, we reasoned that consideration of the defendant’s financial circumstances was necessary to ensure that the increased sentence served legitimate penological purposes rather than simply being “due to poverty.” Id. Likewise, in Pugh, the Fifth Circuit recognized that consideration of financial circumstances and alternatives to monetary bonds is necessary in order to set release conditions that advance legitimate governmental interests. See Pugh, 572 F.2d at 1057.
In this case, the government has no way of determining whether detention of individuals who do not post a bond in the assessed amount is sufficiently related to achieving the government’s purpose, unless it first considers their “financial resources” and whether “adequate alternative methods” of satisfying the government’s interests are available. Cf. Bearden, 461 U.S. at 669, 671. By maintaining

State’s penological interests do not require imprisonment.” Bearden, 461 U.S. at 670. Similarly, in the immigration detention context before us in this case, an IJ or ICE officer has already determined that the government’s legitimate interests in promoting safety and ensuring future appearance do not require detention without bond.

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 30 of 53

30

HERNANDEZ V. SESSIONS

a process for establishing the amount of a bond that likewise fails to consider the individual’s financial ability to obtain a bond in the amount assessed or to consider alternative conditions of release, the government risks detention that accomplishes “little more than punishing a person for his poverty.” Id.21
In sum, as the district court correctly explained, these cases “stand for the general proposition that when a person’s freedom from governmental detention is conditioned on payment of a monetary sum, courts must consider the person’s financial situation and alternative conditions of release when calculating what the person must pay to satisfy a particular state interest.” Otherwise, the government has no way of knowing if the detention that results from failing to post a bond in the required amount is reasonably related to achieving that interest.
The government claims that cases “involv[ing] criminal detention” are irrelevant to immigration detention. On the

21 The government’s attempt to distinguish Bearden is unpersuasive. It argues that immigration detainees are placed into custody “solely due to their alleged violations of immigration law, and wholly unrelated to their financial status,” whereas the probationer in Bearden was “affirmatively punished by incarceration for [his] failure to pay” a fine or restitution. This argument ignores the fact that Plaintiffs would be released from custody if their financial status were different—that is, if they had enough money to post the required bond. As in Bearden, the government claims that detention in the absence of the monetary payment serves a particular interest (prevention of flight on the one hand, punishment on the other) but has failed to consider the factors—financial circumstance and alternatives to detention—that must be evaluated in order to determine if detention is sufficiently related to advancing that interest. It is the failure to consider factors so central to the purported interest that results in detention without adequate procedural protections and hence violates due process.

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 31 of 53

HERNANDEZ V. SESSIONS

31

contrary, the Supreme Court has recognized that criminal detention cases provide useful guidance in determining what process is due non-citizens in immigration detention. See, e.g., Zadvydas, 533 U.S. at 690–91. Furthermore, in M.L.B. v. S.L.J., the Supreme Court explicitly rejected a call to limit the effect of these principles “to cases typed ‘criminal.’” 519 U.S. 102, 127 (1996). Immigration cases, like the parental status termination cases at issue in M.L.B., are set “apart from mine run civil actions” and “involve the awesome authority of the State” to take a “devastatingly adverse action”—here, the power to remove individuals from their homes, separate them from their families, and deport them to countries they may have last seen many years ago. Compare M.L.B., 519 U.S. at 125, 127–28, with Padilla v. Kentucky, 559 U.S. 356, 365 (2010) (“We have long recognized that deportation is a particularly severe ‘penalty’ . . . . Although removal proceedings are civil in nature, deportation is nevertheless intimately related to the criminal process.”) (citation omitted).
The appropriateness of the requirement that ICE and IJs consider financial circumstances and alternative conditions of release is confirmed by the balance of factors under Mathews v. Eldridge:
[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 32 of 53

32

HERNANDEZ V. SESSIONS

the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

424 U.S. 319, 335 (1976). The government’s refusal to require consideration of financial circumstances is impermissible under the Mathews test because the minimal costs to the government of such a requirement are greatly outweighed by the likely reduction it will effect in unnecessary deprivations of individuals’ physical liberty.
As to the first factor, the private interest at issue here is “fundamental”: freedom from imprisonment is at the “core of the liberty protected by the Due Process Clause.” Foucha v. Louisiana, 504 U.S. 71, 80 (1992). That is beyond dispute.
As to the second factor, when the government determines what bond to set without considering a detainee’s financial circumstances, or the availability of alternative conditions of release, there is a significant risk that the individual will be needlessly deprived of the fundamental right to liberty. Even though consideration of these matters does not guarantee that a non-citizen will actually be released on a bond that he is financially able to obtain once all flight risk factors are considered, IJs and ICE will certainly be less likely to impose an excessive bond if they are mandated to at least consider financial circumstances and alternative conditions before setting the amount.
As to the third factor, the government has no legitimate interest in detaining individuals who have been determined not to be a danger to the community and whose appearance at future immigration proceedings can be reasonably ensured by a lesser bond or alternative conditions. See Pugh, 572 F.2d at 1057 (“Since the function of bail is limited, the fixing of bail for any individual defendant must be based

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 33 of 53

HERNANDEZ V. SESSIONS

33

upon standards relevant to the purpose of assuring the presence of that defendant.”) (quotation marks omitted). Therefore, administrative cost is the only factor weighing against requiring consideration of financial circumstances and potential alternative conditions of release. However, the requirement imposes almost no such costs. According to the government, consideration of financial circumstances is already “implicitly” required (although it is not mentioned among the Guerra factors), and the IJ Benchbook22 likewise suggests that financial circumstances should be considered as a non-dispositive factor in bond determinations.23 All that the preliminary injunction requires of the government is that it make consideration of financial circumstances and alternative conditions of release explicitly, rather than implicitly, required factors. This minimal burden is easily outweighed by the reduction in the risk of erroneous deprivation of liberty that would result from the additional safeguard imposed by the preliminary injunction.
The Mathews balancing thus confirms the principle found in Bearden and Parks: If the government is setting monetary bonds to ensure appearance at future proceedings, there is no legitimate reason for it not to consider the

22 The IJ Benchbook lists ability to pay as a factor to consider in bond determinations, but this resource is not a binding statement of law, nor does it purport to require consideration of ability to pay, even if it allows, or even suggests, consideration of that factor.
23 Without addressing these claims relating to its current procedures, or providing any substantive explanation, the government asserts mandatory consideration of financial circumstances would transform bond hearings into “mini trials” on detainees’ finances. In the absence of any evidence supporting these hyperbolic claims, we conclude that any minimal costs that will be imposed on the government by the injunction are far outweighed by the substantial benefits such consideration would afford.

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 34 of 53

34

HERNANDEZ V. SESSIONS

individual’s financial circumstances and alternative conditions of release. By failing to require such consideration, the government has created a system of immigration bond determinations that does not adequately provide a reasonable connection between detention and legitimate governmental interests. See Zadvydas, 533 U.S. at 690; Singh, 638 F.3d at 1203. Plaintiffs are therefore likely to succeed on the merits of their due process claim.
B.
In addition to a likelihood of success on the merits, “[a] plaintiff seeking a preliminary injunction must establish . . . that he is likely to suffer irreparable harm in the absence of preliminary relief.” Winter, 555 U.S. at 20. Here, Plaintiffs have established a likelihood of irreparable harm by virtue of the fact that they are likely to be unconstitutionally detained for an indeterminate period of time.
“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 inexorably from our conclusion that the government’s current policies are likely unconstitutional— and thus that members of the plaintiff class will likely be deprived of their physical liberty unconstitutionally in the absence of the injunction—that Plaintiffs have also carried their burden as to irreparable harm.
The briefs of amici curiae highlight in more concrete terms the irreparable harms imposed on anyone subject to immigration detention (or other forms of imprisonment). For example, the American Bar Association describes evidence of subpar medical and psychiatric care in ICE detention facilities, the economic burdens imposed on detainees and

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 35 of 53

HERNANDEZ V. SESSIONS

35

their families as a result of detention, and the collateral harms to children of detainees whose parents are detained. The University of California, Irvine School of Law’s Immigrant Rights Clinic relates the story of a detainee who was forced to miss her murdered mother’s funeral because she could not afford a $9,000 bond and details the abuse another detainee suffered at the hands of guards and detainees, resulting in mental health problems.24 In the absence of an injunction, harms such as these will continue to occur needlessly on a daily basis.
C.
To obtain a preliminary injunction, a plaintiff must also demonstrate that “the balance of equities tips in his favor.” Winter, 555 U.S. at 20. The harm to the government in this case is minimal. The government’s contention is that the injunction will result in the “diver[sion] [of] the agencies’ time, resources, and personnel from other pressing immigration adjudication and enforcement priorities.” We reject the government’s claim and conclude that the district court did not abuse its discretion in concluding that the balance of equities favors Plaintiffs.
The district court found that the government did “not present any contentions or evidence regarding the ‘fiscal and administrative burdens’ of considering the ability to pay and alternatives to detention when setting bond.” On appeal, the government now relies on the declaration of an ICE Deputy Field Office Director, which avers that the injunction’s requirements will “be more time consuming and keep Deportation Officers (DOs) from their other assigned

24 This brief was filed on behalf of “22 law clinics, legal service providers, community groups and immigrant rights organizations.”

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 36 of 53

36

HERNANDEZ V. SESSIONS

duties.” The conclusory assertions in this declaration, however, are neither persuasive nor supported by any actual evidence.
In fact, contrary to these assertions, the amicus brief of retired IJs and BIA members explains that the district court’s injunction imposes only a minor change on the preexisting bond determination process and “certainly [does] not require a ‘mini trial’ as the Government’s opening brief suggests.” The injunction merely requires consideration of financial circumstances and alternative conditions of release, which is “not overly complicated or complex.” As Plaintiffs point out, the government’s position is that ICE and IJs already have discretion to consider these factors; the injunction only requires that they consider this particular factor in every case of non-citizens who have been determined not to present a danger to the community and not to present so great a flight risk as to require detention without bond.
We have no doubt that the district court was correct that any additional administrative costs to the government are far outweighed by the considerable harm to Plaintiffs’ constitutional rights in the absence of the injunction. The injunction will likely prevent the unnecessary detention of non-citizens who the government has determined are neither dangerous nor enough of a flight risk to require detention without bond. “Faced with such a conflict between financial concerns and preventable human suffering, we have little difficulty concluding that the balance of hardships tips decidedly in plaintiffs’ favor.” Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983).
The injunction’s requirement that ICE and IJs consider financial circumstances and alternative conditions of release along with the factors they already consider imposes a relatively modest burden on the government and helps

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 37 of 53

HERNANDEZ V. SESSIONS

37

reduce “the major hardship posed by needless prolonged detention,” and so the balance of equities favors Plaintiffs. Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013) (Rodriguez II).
D.
When, as here, “the impact of an injunction reaches beyond the parties, carrying with it a potential for public consequences, the public interest will be relevant to whether the district court grants the preliminary injunction.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009). Plaintiffs must demonstrate that the public interest favors granting the injunction “in light of [its] likely consequences,” i.e., “consequences [that are not] too remote, insubstantial, or speculative and [are] supported by evidence.” Id. The public interest benefits from an injunction that ensures that individuals are not deprived of their liberty and held in immigration detention because of bonds established by a likely unconstitutional process.
First, and most important, the injunction serves the interests of the general public by ensuring that the government’s initial bond determination procedures comply with the Constitution. “Generally, public 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).
Second, in addition to the potential hardships facing Plaintiffs in the absence of the injunction, the court “may consider . . . the indirect hardship to their friends and family members.” Golden Gate Rest. Ass’n v. City & Cty. of San Francisco, 512 F.3d 1112, 1126 (9th Cir. 2008). Without the changes ordered by the district court, bond will likely be set

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 38 of 53

38

HERNANDEZ V. SESSIONS

at amounts that are not reasonably related to the government’s interests, which places financial and psychological strain on the families of detainees. As the Immigrant Rights Clinic amicus brief explains, family members of detainees must sometimes “choose between scraping money together to pay a bond or paying for necessities, such as rent, utilities, and food.” Unnecessary detention places other burdens on families as well, as illustrated by the case described in the Clinic’s brief in which a detainee’s children had to receive counseling because of the trauma of their government-compelled separation from their father.
Third, the general public’s interest in the efficient allocation of the government’s fiscal resources favors granting the injunction. See Golden Gate Rest. Ass’n, 512 F.3d at 1125. The costs to the public of immigration detention are “staggering”: $158 each day per detainee, amounting to a total daily cost of $6.5 million. Supervised release programs cost much less by comparison: between 17 cents and 17 dollars each day per person As the amicus brief from retired IJs explains, reduced detention costs can free up resources to more effectively process claims in Immigration Court. In light of these considerations, the district court did not err in concluding that the interests of the general public would be served by granting the preliminary injunction.
III.
The government also challenges the scope of the injunction. These challenges fail.
The government contests the requirements in the injunction that it (1) not conduct future initial bond hearings according to procedures that will likely result in

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 39 of 53

HERNANDEZ V. SESSIONS

39

unconstitutional detention, and (2) provide new bond hearings to individuals who are currently detained on bonds that were set pursuant to those procedures.25 According to the government, these provisions are “mandatory” rather than “prohibitory”—that is, they go beyond “maintaining the status quo” and preventing further constitutional violations, and hence should not be approved in the absence of a risk of “extreme or very serious damage.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (quotation marks omitted).
Our approach to preliminary injunctions, with separate standards for prohibitory and mandatory injunctions, is controversial. The Sixth Circuit has explicitly rejected a heightened burden for mandatory injunctions, noting, “[w]e [ ] see little consequential importance to the concept of the status quo, and conclude that the distinction between mandatory and prohibitory injunctive relief is not meaningful. Accordingly, we . . . hold that the traditional preliminary injunctive standard—the balancing of equities—applies to motions for mandatory preliminary injunctive relief as well as motions for prohibitory preliminary injunctive relief.” United Food & Commercial Workers Union, Local 1099 v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341, 348 (6th Cir. 1998). The Seventh Circuit likewise holds that “[w]hether and in what sense the grant of relief would change or preserve some previous state of affairs is neither here nor there. To worry these questions is

25 The partial dissent raises additional concerns about the deadlines set in the district court’s order. The government did not challenge the deadlines on appeal, and so they are not before us. If the government believes the deadlines are unreasonable, however, it may ask the district court to reconsider them on remand and we expect that the district court will consider its request in all good faith.

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 40 of 53

40

HERNANDEZ V. SESSIONS

merely to fuzz up the legal standard.” Chicago United Indus., Ltd. v. City of Chicago, 445 F.3d 940, 944 (7th Cir. 2006) (Posner, J.).
Scholars have also criticized our approach. One critique concludes that “a heightened preliminary injunction standard in cases involving mandatory orders that upset the status quo has little to recommend it,” that “[h]istory points decidedly against this approach,” and that “[c]ontinued retention of the hollow inquiry into the nature of an injunction or its effect on the status quo will give rise to additional costs without producing any offsetting benefits.” Thomas R. Lee, Preliminary Injunctions and the Status Quo, 58 Wash. & Lee L. Rev. 109, 166 (2001). More than half a century ago, the Harvard Law Review criticized the distinction, arguing that “the existence of a formula that is susceptible to either a verbal or a substantive interpretation, and that is not always indicative of the severity of the burden a decree is likely to place upon the defendant and court, should not be accepted without question. It is these burdens, rather than any talismanic phraseology, that should determine the issuance or denial of an injunction.” Developments in the Law—Injunctions—Types of Injunctions, 78 Harv. L. Rev. 1055, 1063 (1965).
Even other circuits that apply a heightened standard to mandatory injunctions have questioned whether the line between mandatory and prohibitory injunctions is meaningful. The Second Circuit has noted that “[t]he distinction between mandatory and prohibitory injunctions is not without ambiguities or critics,” and that it has “led to distinctions that are more semantic than substantive.” Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 34 (2d Cir. 1995) (quotation marks omitted). A majority of the Tenth Circuit has likewise recognized that “determining

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 41 of 53

HERNANDEZ V. SESSIONS

41

whether an injunction is mandatory as opposed to prohibitory can be vexing,” and that cases can involve “important competing status quos.” O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 1006 (10th Cir. 2004) (en banc) (Seymour, J., concurring in part and dissenting in part).26
We are nevertheless bound by circuit precedent to discern the line between mandatory and prohibitory injunctions as best we can. We do so recognizing the complexities of the problem, the lack of clear authority as to how the distinction is implemented, and the inherent contradictions underlying the somewhat artificial legal construct that cause so many to question the inquiry we now undertake. Given all that, we find the answer to the challenges raised by the government here remarkably simple.
A.
As to the government’s first challenge—its objection to the requirement that it conduct future initial bond hearings in accordance with constitutional processes—the injunction is prohibitory: it prohibits the government from conducting new bond hearings under procedures that will likely result in unconstitutional detentions. This part of the injunction prevents future constitutional violations, a classic form of prohibitory injunction. See Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053, 1060–61 (9th Cir. 2014) (holding that an injunction against enforcement of a likely

26 Judge Seymour’s opinion is not designated as the opinion of the court, but it was joined in relevant part by eight of the thirteen judges. Six of those judges would have rejected the heightened standard for mandatory injunctions entirely.

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 42 of 53

42

HERNANDEZ V. SESSIONS

unconstitutional state policy was prohibitory rather than mandatory); Bay Area Addiction Research and Treatment, Inc. v. City of Antioch, 179 F.3d 725, 728, 732 n.13 (9th Cir. 1999) (holding that an injunction against enforcement of a local ordinance that likely violated federal law was prohibitory rather than mandatory); see also Melendres, 695 F.3d at 994–96, 1000, 1002 (affirming a preliminary injunction against an allegedly longstanding practice of detaining individuals based solely on suspicions about immigration status); McCormack v. Hiedeman, 694 F.3d 1004, 1009, 1020, 1022 (9th Cir. 2012) (affirming a preliminary injunction barring enforcement against the plaintiff of a longstanding Idaho anti-abortion criminal statute); 42 Am. Jur. 2d Injunctions § 5 (2017) (“An injunction is considered prohibitory when the thing complained of results from present and continuing affirmative acts and the injunction merely orders the defendant to refrain from doing those acts.”).
B.
The requirement that the government conduct new bond hearings for individuals detained on account of bonds set pursuant to the enjoined procedure (the procedure which fails to consider financial circumstances or alternative conditions of release), may, however, under certain plausible interpretations be deemed mandatory. On the one hand, it directs the government to affirmatively hold new hearings it would not otherwise have held. On the other hand, it can also be understood as merely prohibiting the government from continuing to detain individuals subject to bond amounts set through unconstitutional procedures. Because the nature of this provision is subject to greater dispute than the first, we assume without deciding that the requirement is mandatory.

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 43 of 53

HERNANDEZ V. SESSIONS

43

Mandatory injunctions, while subject to a higher standard than prohibitory injunctions, are permissible when “extreme or very serious damage will result” that is not “capable of compensation in damages,” and the merits of the case are not “doubtful.” Marlyn Nutraceuticals, 571 F.3d at 879 (quotation marks omitted). Those requirements are met here. First unlawful detention certainly constitutes “extreme or very serious” damage, and that damage is not compensable in damages. Second, the merits of this case are not “doubtful” in our opinion—Plaintiffs’ likely success follows directly from the Supreme Court’s dictate that immigration detention must “bear[] a reasonable relation to [its] purpose.” Zadvydas, 533 U.S. at 690. That connection between detention for failure to post a bond and legitimate governmental purposes can be made only if there is first a consideration of financial circumstances and alternative ways of serving that purpose. See Bearden, 461 U.S. at 672– 73.
We also note that the injunction in this case is not the “unprecedented relief” alleged by the government. This is not the first time we have approved of preliminary injunctions that require the government to conduct bond hearings in the immigration context. In fact, we have done so at least three times before. See Preap v. Johnson, 831 F.3d 1193, 1198, 1207 (9th Cir. 2016);27 Rodriguez II, 715 F.3d at 1130–31;28 Diouf v. Napolitano, 634 F.3d 1081, 1083–84

27 The government has petitioned for a writ of certiorari in Preap, but the petition relates only to the merits of the claim, not the mandatory nature of the injunction. See generally Petition for a Writ of Certiorari, Kelly v. Preap, No. 16-1363 (U.S. May 11, 2017).
28 The government did not seek certiorari in Rodriguez II. The Supreme Court’s pending review of Rodriguez III does not relate to the validity or scope of the preliminary injunction.

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 44 of 53

44

HERNANDEZ V. SESSIONS

(9th Cir. 2011). In none of these cases did the government challenge the preliminary injunction on the basis that it was mandatory rather than prohibitory. Although, for that reason, these cases do not necessarily control the result here, they at the least inform our analysis by demonstrating that such preliminary injunctions are standard in cases alleging unconstitutional detention.
The rules governing the relief that may be granted by preliminary injunction are not “hard and fast rules, to be rigidly applied to every case regardless of its peculiar facts,” because “[t]he infinite variety of situations in which a court of equity may be called upon for interlocutory injunctive relief requires that the court have considerable discretion in fashioning such relief.” Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 809 (9th Cir. 1963). Mandatory injunctions are most likely to be appropriate when “the status quo . . . is exactly what will inflict the irreparable injury upon complainant.” Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816, 830 n.21 (D.C. Cir. 1984). This is just such a case. The status quo, in which Plaintiffs had their bonds determined under the old procedure, is what is inflicting the irreparable injury— continued detention subject to those bonds, or perhaps more important, to a constitutionally invalid process. We further note that the remedy imposed by the injunction, even if mandatory in nature, is a mild one—it does not require the government to release any detainees; it merely directs it to conduct a relatively small number of new hearings in which it must consider constitutionally required factors while setting the bond amounts. We conclude, therefore, that the district court did not abuse its discretion in granting the portion of the injunction requiring new bond hearings for

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 45 of 53

HERNANDEZ V. SESSIONS

45

those presently detained as a result of the use of unconstitutional procedures.29
IV.
Plaintiffs are likely to succeed on their challenge under the Due Process Clause to the government’s policy of allowing ICE and IJs to set immigration bond amounts without considering the detainees’ financial circumstances or alternative conditions of release. The government has failed to offer any convincing reason why these factors should not be considered in bond hearings for non-citizens who are determined not to be a danger to the community and not to be so great a flight risk as to require detention without bond. The irreparable harm to Plaintiffs of detention pursuant to bond amounts determined through a likely unconstitutional process far outweighs the minimal

29 The government also challenges the requirement that it meet and confer with Plaintiffs to develop guidelines for future immigration hearings. According to the government, this requirement gives “Plaintiffs’ counsel veto authority over the terms and guidelines to be used in those bond proceedings, [which] violates Congress’s delegation of such authority to the Executive.” To the contrary, the district court retains authority to resolve any disputes between the parties regarding implementation of the injunction. The requirement that the parties meet and confer is merely an administrative mechanism to reduce unnecessary burdens on the district court’s resources. It is an entirely ordinary exercise of the district court’s authority to manage cases and to encourage cooperation before parties resort to asking the court to resolve a dispute. See, e.g., C.D. Cal. L.R. 7-3 (requiring parties to confer prior to filing most motions and to file the motion only if the parties are “unable to reach a resolution which eliminates the necessity for a hearing”).

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 46 of 53

46

HERNANDEZ V. SESSIONS

administrative burdens to the government of complying with the injunction while this case proceeds.
The district court’s order granting the preliminary injunction is AFFIRMED.

FERNANDEZ, Circuit Judge, concurring in part and dissenting in part:
I agree that the district court did not abuse its discretion when it decided to issue a preliminary injunction requiring the consideration of “financial ability” and “alternative conditions of supervision”1 in making determinations regarding the release of aliens who have been detained pursuant to 8 U.S.C. § 1226(a). However, I do not agree with the breadth of the injunctive order that was issued. Thus, I respectfully concur in part and dissent in part.
A. Concurrence
While I do generally concur in the merits decision itself (including parts I and II and the portion of the opinion which precedes them), I do so with a caveat and with some exceptions as to language that I consider unnecessary, overbroad, or otherwise problematic.
1. Caveat—Throughout the opinion, the language used might be taken to declare that there must be two separate (non-overlapping) steps that a hearing officer must take in
1 To avoid referring to both financial ability and alternative conditions each time, I will hereafter just use the former to include both, unless otherwise stated.

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 47 of 53

HERNANDEZ V. SESSIONS

47

making a bond determination: first, the officer must determine if the alien can be released at all;2 and second, if the alien meets the first step, the officer’s remaining determination must be made based upon the nature of the alien’s financial ability only. To the extent that the opinion could be read that way, it should not be. Rather, a myriad of factors go into deciding the release question,3 and all we say here is that financial ability must be part of that mix. As I see it, the majority opinion merely requires that hearing officers must consider financial ability along with the rest of the farrago of factors that they consider.
2. Exceptions
a. I do not join the discussion in the fourth paragraph of part II.A. For example, while there is a serious danger in a failure to consider financial ability, I do not agree that reasonable decisions are unlikely without it. Moreover, the effectiveness of various approaches is best decided at trial rather than by accepting claims in an amicus brief.
b. I do not join in the discussion in the sixth through tenth paragraphs of part II.A. because I am not convinced that cases prohibiting the criminal punishment of persons who cannot afford to pay judgments of one kind or another are significantly similar to the case at hand.
c. I do not fully join the discussion in the fifteenth paragraph of part II.A. because I am not satisfied that consideration of potential alternative conditions of release imposes “almost no [administrative] costs” or that the

2 See for example notes 3 and 18 of the majority opinion. 3 See, e.g., In re Guerra, 24 I. & N. Dec. 37, 40 (B.I.A. 2006).

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 48 of 53

48

HERNANDEZ V. SESSIONS

preliminary injunction, as written, will impose a “minimal burden” on the government.
d. I do not join in the third paragraph of part II.B., or in the conclusion therein.
e. I do not join the fourth and fifth paragraphs of part II.C. to the extent that they signal an approval of the full scope of the injunctive order which we are reviewing.
f. I do not join the third and fourth paragraphs of part II.D., which I see as unnecessary and problematic. For example, I do not think we should be deciding public policy issues based upon how we think the government should spend its money in an area as fraught with controversy as immigration.
B. Dissent: Scope of the Preliminary Injunction
The preliminary injunction issued here has both prohibitory and mandatory aspects.4 In considering the

4 As relevant to this opinion, the order reads as follows:
“I. Procedures for ICE Custody Determinations, IJ Custody Redeterminations, and BIA Review
1. For all noncitizens detained under 8 U.S.C. § 1226(a) in the Central District of California (the “District”) after the date of this Order, U.S. Immigration and Customs Enforcement (“ICE”) and the Executive Office of Immigration Review (“EOIR”), when setting, re-determining, and/or reviewing the terms of any person’s release, must (a) consider the person’s financial ability to pay a bond; (b) not set bond at a greater amount than that needed to ensure the person’s appearance; and

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 49 of 53

HERNANDEZ V. SESSIONS

49

(c) consider whether the person may be released on alternative conditions of supervision, alone or in combination with a lower bond amount, that are sufficient to mitigate flight risk.
2. Within seven days of this Order, Defendants will meet and confer with Plaintiffs’ counsel (“Class Counsel”), and continue to confer thereafter with Class Counsel in good faith, to develop and agree to the following:
a. guidelines for ICE and the Immigration Judges (“IJs”) to apply in determining an individual’s financial ability to pay a bond;
b. instructions to all ICE officers who conduct initial custody determinations under Section 1226(a) and to all IJs in the District that inform them of the requirements of this Order (including the guidelines developed in Paragraph 2(a) above); and
c. a notice for all class members currently detained in the District summarizing the requirements of this Order in connection with their upcoming custody redetermination hearings pursuant to this Order.
3. As soon as practicable, but in any event no later than thirty days after this order, Defendants shall:
a. issue the instructions developed in Paragraph 2(b) above (including the guidelines developed in Paragraph 2(a) above) to all ICE officers who conduct initial custody determinations under Section 1226(a) and to all IJs in the District; and

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 50 of 53

50

HERNANDEZ V. SESSIONS

propriety of the injunction, we must bear in mind the fact that mandatory terms5 present more difficulties than prohibitive terms,6 and it is the former that I disagree with in
this case.

b. send the notice developed in Paragraph 2(c) above to all class members currently detained in the District.
4. Defendants will notify Class Counsel of the date and location of each new custody redetermination hearing set pursuant to this Order at least seven days in advance of the hearing.
5. Within 45 days of this order, the EOIR will provide each class member currently detained in the District with a new custody redetermination hearing where the IJ decides whether the class member should be released on his or her own recognizance or released on a money bond and/or other conditions of supervision. When setting a class member’s terms of release, the IJ must comply with Paragraph 1 of this Order. Nothing in this Order prevents a class member from seeking a continuance to prepare for his or her hearing.
6. Where a class member or the government appeals the IJ’s custody redetermination to the Board of Immigration Appeals (“BIA”), the BIA will determine whether the IJ has properly performed the analysis set forth in Paragraph 1, which is required by 8 U.S.C. § 1226(a).”
5 See Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (“A mandatory injunction orders a responsible party to take action.” (internal quotation marks omitted)).
6 See id. at 878 (“A prohibitory injunction prohibits a party from taking action . . . .”).

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 51 of 53

HERNANDEZ V. SESSIONS

51

Even without regard to the form and despite the rulings of the district court and the thrust of the majority opinion, “[a] preliminary injunction, of course, is not a preliminary adjudication on the merits but rather a device for preserving the status quo and preventing the irreparable loss of rights before judgment.” Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). A mandatory injunction is much more likely to trench on that principle than is a prohibitory injunction. For that reason, we have stated that:
A mandatory injunction goes well beyond simply maintaining the status quo [p]endente lite [and] is particularly disfavored. In general, mandatory injunctions are not granted unless extreme or very serious damage will result and are not issued in doubtful cases or where the injury complained of is capable of compensation in damages.

Marlyn Nutraceuticals, 571 F.3d at 879 (citations and internal quotation marks omitted); see also Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (en banc). The majority bridles at our wisely adopted distinction, but reluctantly agrees that it must be followed. Still, I fear that its distaste for the distinction, together with its declaration that it is “unlikely” that the outstanding bonds are reasonable, has helped to lead it astray. However, when the above standards are applied, I cannot agree with the district court order which proceeds as if the merits have been finely adjudicated and which immediately and inappropriately imposes mandatory duties upon the government accordingly.

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 52 of 53

52

HERNANDEZ V. SESSIONS

More specifically, I disagree with the district court’s order in the ways set forth below.
1. As to paragraph I.1.7 of the order, while I agree that the government must consider financial ability in future release hearings,8 I do not agree that it must forthwith conduct new bond hearings for all those who are currently detained, regardless of the nature of the records regarding their prior hearings. To the extent this paragraph contemplates that must be done, I do not agree.
2. I do not agree with the scope of paragraphs I.2. and I.3. of the order. Again, I do agree that financial ability must be considered at future release hearings, but I do not agree that the district court can, at this point, order the government to consult with class counsel and “develop and agree” to guidelines. While it is suggested that this is a mere conferencing and consulting direction, it plainly is not just that—it directs the government to “agree” with class counsel. As I see it, at this point, the government must consider financial ability. If detailed procedures beyond those that already exist (or amendments to current procedures) are needed for that purpose, the government’s determination and adoption of those procedures should basically be through the usual governmental processes9 rather than in a forced march and a required agreement with class counsel. I note that all of that is to take place within 30 days of the order. That by itself is unreasonable.

7 All references to paragraphs in the order are to those as set forth in note 4, supra.
8 See 8 U.S.C. § 1226(a).
9 See Bresgal v. Brock, 843 F.2d 1163, 1171 (9th Cir. 1987).

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-1, Page 53 of 53

HERNANDEZ V. SESSIONS

53

Incidentally, I would see no real difficulty if the government were merely required to distribute the preliminary injunction order to the relevant parties (officers and class members) once a proper order is issued. These paragraphs should be set aside or rewritten accordingly.
3. I do not agree with paragraph I.5., which requires that hearings for all current detainees be conducted within 45 days of the order. Specifically I do not agree with the requirement that hearings be held for all current detainees, and the timing exacerbates the problem. Interestingly enough, the government is required to meet, confer, and agree with class counsel and give necessary notices within 30 days. It is then to conduct hearings for all of those currently detained within 15 days thereafter, or, of course, agree earlier and gain some extra hearing time. I would also strike this unreasonable paragraph.
In short, at this preliminary injunction stage of the proceeding, I agree that the government must consider financial ability in future hearings, a requirement that I find to be essentially prohibitory. I do not agree with the other essentially mandatory aspects of the order regarding development and agreement on guidelines, or the holding of hearings for all current detainees forthwith and within the strict deadlines set out by the district court.
Thus, I respectfully concur with the majority opinion in part and dissent in part.

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-2, Page 1 of 5

United States Court of Appeals for the Ninth Circuit

Office of the Clerk 95 Seventh Street San Francisco, CA 94103

Information Regarding Judgment and Post-Judgment Proceedings

Judgment •

This Court has filed and entered the attached judgment in your case. Fed. R. App. P. 36. Please note the filed date on the attached decision because all of the dates described below run from that date, not from the date you receive this notice.

Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2) • The mandate will issue 7 days after the expiration of the time for filing a petition for rehearing or 7 days from the denial of a petition for rehearing, unless the Court directs otherwise. To file a motion to stay the mandate, file it electronically via the appellate ECF system or, if you are a pro se litigant or an attorney with an exemption from using appellate ECF, file one original motion on paper.

Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1) Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)

(1) A. Purpose (Panel Rehearing): • A party should seek panel rehearing only if one or more of the following grounds exist: ► A material point of fact or law was overlooked in the decision; ► A change in the law occurred after the case was submitted which appears to have been overlooked by the panel; or ► An apparent conflict with another decision of the Court was not addressed in the opinion. • Do not file a petition for panel rehearing merely to reargue the case.

B. Purpose (Rehearing En Banc) • A party should seek en banc rehearing only if one or more of the following
grounds exist:

Post Judgment Form - Rev. 08/2013

1

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-2, Page 2 of 5
► Consideration by the full Court is necessary to secure or maintain uniformity of the Court’s decisions; or
► The proceeding involves a question of exceptional importance; or ► The opinion directly conflicts with an existing opinion by another
court of appeals or the Supreme Court and substantially affects a rule of national application in which there is an overriding need for national uniformity.
(2) Deadlines for Filing: • A petition for rehearing may be filed within 14 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the United States or an agency or officer thereof is a party in a civil case, the time for filing a petition for rehearing is 45 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the mandate has issued, the petition for rehearing should be accompanied by a motion to recall the mandate. • See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the due date). • An order to publish a previously unpublished memorandum disposition extends the time to file a petition for rehearing to 14 days after the date of the order of publication or, in all civil cases in which the United States or an agency or officer thereof is a party, 45 days after the date of the order of publication. 9th Cir. R. 40-2.
(3) Statement of Counsel • A petition should contain an introduction stating that, in counsel’s judgment, one or more of the situations described in the “purpose” section above exist. The points to be raised must be stated clearly.
(4) Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2)) • The petition shall not exceed 15 pages unless it complies with the alternative length limitations of 4,200 words or 390 lines of text. • The petition must be accompanied by a copy of the panel’s decision being challenged. • An answer, when ordered by the Court, shall comply with the same length limitations as the petition. • If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a petition for panel rehearing or for rehearing en banc need not comply with Fed. R. App. P. 32.

Post Judgment Form - Rev. 08/2013

2

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-2, Page 3 of 5
• The petition or answer must be accompanied by a Certificate of Compliance found at Form 11, available on our website at www.ca9.uscourts.gov under Forms.
• You may file a petition electronically via the appellate ECF system. No paper copies are required unless the Court orders otherwise. If you are a pro se litigant or an attorney exempted from using the appellate ECF system, file one original petition on paper. No additional paper copies are required unless the Court orders otherwise.
Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1) • The Bill of Costs must be filed within 14 days after entry of judgment. • See Form 10 for additional information, available on our website at www.ca9.uscourts.gov under Forms.
Attorneys Fees • Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees applications. • All relevant forms are available on our website at www.ca9.uscourts.gov under Forms or by telephoning (415) 355-7806.
Petition for a Writ of Certiorari • Please refer to the Rules of the United States Supreme Court at www.supremecourt.gov
Counsel Listing in Published Opinions • Please check counsel listing on the attached decision. • If there are any errors in a published opinion, please send a letter in writing within 10 days to: ► Thomson Reuters; 610 Opperman Drive; PO Box 64526; Eagan, MN 55123 (Attn: Jean Green, Senior Publications Coordinator); ► and electronically file a copy of the letter via the appellate ECF system by using “File Correspondence to Court,” or if you are an attorney exempted from using the appellate ECF system, mail the Court one copy of the letter.

Post Judgment Form - Rev. 08/2013

3

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-2, Page 4 of 5 Form 10. Bill of Costs ................................................................................................................................(Rev. 12-1-09)

United States Court of Appeals for the Ninth Circuit
BILL OF COSTS
This form is available as a fillable version at: http://cdn.ca9.uscourts.gov/datastore/uploads/forms/Form%2010%20-%20Bill%20of%20Costs.pdf.
Note: If you wish to file a bill of costs, it MUST be submitted on this form and filed, with the clerk, with proof of service, within 14 days of the date of entry of judgment, and in accordance with 9th Circuit Rule 39-1. A late bill of costs must be accompanied by a motion showing good cause. Please refer to FRAP 39, 28 U.S.C. § 1920, and 9th Circuit Rule 39-1 when preparing your bill of costs.

v.

9th Cir. No.

The Clerk is requested to tax the following costs against:

Cost Taxable under FRAP 39, 28 U.S.C. § 1920, 9th Cir. R. 39-1
Excerpt of Record Opening Brief Answering Brief Reply Brief Other**

REQUESTED (Each Column Must Be Completed)

No. of Pages per Cost per

Docs.

Doc.

Page*

TOTAL COST

$

$

$

$

$

$

$

$

$

$

TOTAL: $

ALLOWED (To Be Completed by the Clerk)

No. of Pages per Cost per

Docs.

Doc.

Page*

TOTAL COST

$

$

$

$

$

$

$

$

$

$

TOTAL: $

* Costs per page: May not exceed .10 or actual cost, whichever is less. 9th Circuit Rule 39-1.
** Other: Any other requests must be accompanied by a statement explaining why the item(s) should be taxed pursuant to 9th Circuit Rule 39-1. Additional items without such supporting statements will not be considered.

Attorneys' fees cannot be requested on this form.

Continue to next page

Case: 16-56829, 10/02/2017, ID: 10600770, DktEntry: 71-2, Page 5 of 5 Form 10. Bill of Costs - Continued

I,

, swear under penalty of perjury that the services for which costs are taxed

were actually and necessarily performed, and that the requested costs were actually expended as listed.

Signature ("s/" plus attorney's name if submitted electronically) Date
Name of Counsel:

Attorney for:

(To Be Completed by the Clerk) Date

Costs are taxed in the amount of $ Clerk of Court By:

, Deputy Clerk

 
 Case 5:16-cv-00620-JGB-KK Document 127 Filed 11/21/17 Page 1 of 3 Page ID #:2524

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

CENTRAL DISTRICT OF CALIFORNIA

9

10 XOCHITL HERNANDEZ and 11 CESAR MATIAS, for themselves
and on behalf of a class of 12 similarly-situated individuals

13

14

Plaintiffs, v.

15

16 JEFFERSON B. SESSIONS, U.S. Attorney General, et al.,
17

18

Defendants.

) CASE NO. CV 5:16-cv-00620-JGB-KKx ) ) ) ORDER APPROVING ) JOINT STIPULATION TO EXTEND ) TIMETABLE TO IMPLEMENT ) THE COURT’S NOVEMBER 10, 2016 ) ORDER ) ) ) Judge Jesus G. Bernal )

19

20

For good cause having been shown, IT IS HEREBY ORDERED that the

21 parties’ request to extend the timetable for implementing Part I, paragraphs 2(a),

22 2(b), 2(c), 3(a), 3(b), and 5, and Part II of the Court’s November 10, 2016 Order

23 granting Plaintiffs-Petitioners’ motion for a class-wide preliminary injunction is

24 GRANTED.

25

With respect to Part I, paragraphs 2(a), 2(b), and 2(c) of the Order, the

26 parties shall have until November 21, 2017, to develop and agree to: a) guidelines

27 for ICE and the Immigration Judges to apply in determining an individual’s 28

1

Case 5:16-cv-00620-JGB-KK Document 127 Filed 11/21/17 Page 2 of 3 Page ID #:2525

1 financial ability to pay a bond; b) instructions to all ICE officers who conduct

2 initial custody determinations under Section 1226(a) and to all Immigration Judges

3 in the District informing them of the requirements of the Court’s Order (including

4 the guidelines); and c) a notice for all class members currently detained in the

5 District summarizing the requirements of the Order in connection with their

6 upcoming custody redetermination hearings pursuant to this Order.

7

With respect to Part I, paragraphs 3(a) and 3(b) of the Order, the parties shall

8 have until November 27, 2017, for Defendants to issue instructions and guidelines

9 to all ICE officers who conduct initial custody determinations under 8 U.S.C.
10 § 1226(a), and to all Immigration Judges in the Central District of California, and
11 for Defendants to post the notice developed in Part I, paragraph 2(c), in all
12 detention centers in which class members currently detained in the District. The
13 notices shall be placed in prominent locations throughout the detention centers in a
14 manner that will be visible to all class members. Defendants shall also provide a
15 16 copy of the notice developed in Part I, paragraph 2(c) with a Notice of Custody
17 Redetermination provided to class members upon the scheduling of their bond

18 hearings.

19

With respect to Part I, paragraph 5 of the Order, EOIR shall have until

20 February 2, 2018, to conduct new bond hearings for currently detained class-

21 members. EOIR shall endeavor in good-faith to schedule at least half of the 281

22 individuals who initially have been identified as class members for a hearing by

23 December 29, 2017. Immigration Judges assigned to conduct the bond hearings

24 will make good faith efforts to prioritize the new bond hearings of each class

25 member on their docket based on the class member’s length of detention, such that

26 class members who have been detained the longest have their new hearings first. 27 // 28 //

2

Case 5:16-cv-00620-JGB-KK Document 127 Filed 11/21/17 Page 3 of 3 Page ID #:2526

1

With respect to Part II, paragraphs 7 and 8 of the Order, Defendants shall

2 have until February 16, 2018, to submit under seal and serve on Class Counsel a

3 status report meeting the requirements of Part II, paragraphs 7 and 8 of the Order.

4

SO ORDERED.

5

6 DATED: November 21, 2017 7 8

____________________________ JESUS G. BERNAL UNITED STATES DISTRICT JUDGE

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

 
 Case 5:16-cv-00620-JGB-KK Document 129 Filed 12/01/17 Page 1 of 7 Page ID #:2605

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. EDCV 16-620-JGB (KKx) Title: Xochitl Hernandez, et al. v. Jeff Sessions, et al.

Date: December 1, 2017

Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE

DEB TAYLOR Deputy Clerk

Not Reported Court Reporter

Attorney(s) Present for Plaintiff(s): None Present

Attorney(s) Present for Defendant(s): None Present

Proceedings: Order Granting Plaintiffs’ Motion to Compel [Dkt. 122] and Vacating the December 7, 2017 Hearing

On November 9, 2017, Plaintiffs Xochitl Hernandez and Cesar Matias, for themselves and on behalf of a certified class of similarly situated individuals (“Plaintiffs”) filed a Motion to Compel seeking supplemental responses and production of responsive documents without objection to (1) Interrogatory Nos. 1 through 5 from defendant Department of Justice (“DOJ”); (2) Interrogatory Nos. 1 through 8 from defendant Department of Homeland Security (“DHS”); (3) Request for Production Nos. 1 through 9 from defendant DOJ; and (4) Request for Production Nos. 1 through 15 from defendant DHS (“Motion to Compel”). ECF Docket No. (“Dkt.”) 122. Plaintiffs also request an award of reasonable attorney’s fees incurred in preparing the Motion to Compel. For the reasons set forth below, Plaintiffs’ Motion to Compel and request for fees are GRANTED. The hearing currently set for December 7, 2017 is hereby VACATED.

/// /// /// /// /// /// /// ///

Page 1 of 7

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk __

Case 5:16-cv-00620-JGB-KK Document 129 Filed 12/01/17 Page 2 of 7 Page ID #:2606

I. BACKGROUND
On April 6, 2016, Plaintiffs filed the Complaint in the instant action against the following individuals in their official capacity: (1) U.S. Attorney General Jefferson B. Sessions III1; (2) Acting Director of the Executive Office for Immigration Review James McHenry; (3) Acting Secretary of DHS Elaine C. Duke; (4) Acting Director of Immigration and Customs Enforcement (“ICE”) Thomas D. Homan; (5) Field Office Director of the Los Angeles Field Office of ICE David Jennings; (6) Warden of the Adelanto Detention Facility James Janecka; (7) Jail Administrator of the Santa Ana City Jail Christina Holland; (8) Chief of the Santa Ana City Department Carlos Roja; (9) Captain of the Orange County Sheriff’s Department (“OCSD”) Jon Briggs; (10) OCSD Captain Mike Krueger; and (11) OCSD Sheriff Sandra Hutchens. Dkt. 1, Compl. On April 22, 2016, Plaintiffs filed a Motion to Certify the Class. Dkt. 24. Plaintiffs are a class of non-citizens in removal proceedings, detained under 8 U.S.C. § 1226(a) in the Central District of California, who the government has already determined are neither dangerous nor enough of a flight risk to require detention without bond, but who remain detained because they are unable to afford bond in the amount set by the immigration officials. Id.
On May 19, 2016, Plaintiffs filed a Motion for Preliminary Injunction against the government’s policy of failing to require immigration officials to consider financial circumstances and alternative conditions of release at bond hearings. Dkt. 45. On June 10, 2016, Defendants filed a Motion to Dismiss. Dkt. 59. On November 10, 2016, the Court issued orders denying Defendants’ Motion to Dismiss, granting Plaintiffs’ Motion to Certify the Class, and granting Plaintiffs’ Motion for Preliminary Injunction. Dkts. 84, 85.
On December 9, 2016, Defendants appealed the order granting Plaintiffs’ Motion for Preliminary Injunction. Dkt. 87. On December 9, 2016, Defendants also filed an ex parte application to stay the case pending appeal. Dkt. 88. On December 28, 2016, the Court denied Defendants’ ex parte application to stay the case. Dkt. 93. However, on January 4, 2017, the Ninth Circuit issued an order staying the preliminary injunction pending appeal. Dkt. 94. On May 5, 2017, the Ninth Circuit issued an order clarifying that Defendants’ “request for an administrative stay of all district court proceedings in this case is DENIED.” Dkt. 105.
On June 22, 2017, Plaintiffs served Requests for Production and Interrogatories on defendants DOJ and DHS. Declaration of Douglas A. Smith (“Smith Decl.”), ¶ 11, Ex. 4. The Requests for Production seek the Alien files (“A files”) for each Plaintiff, various information regarding the detention and removal proceedings of detainees held during the relevant time period including ICE Risk Classification Assessments, information regarding policies, procedures, practices, forms, and training about custody and bond determinations, and information regarding the cost of conducting detention hearings and supervising detainees released on alternative bond conditions. Id. ¶¶ 12, 13, Exs. 5, 6. The Interrogatories seek

1 The individuals currently holding the offices have since been substituted as Defendants in this action in place of the individuals named in the Complaint.

Page 2 of 7

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk __

Case 5:16-cv-00620-JGB-KK Document 129 Filed 12/01/17 Page 3 of 7 Page ID #:2607

identification of class members, information regarding custody review procedures, the cost of detaining detainees, conducting custody determinations, and supervising detainees released on alternative bond conditions, and the failure to appear rate of detainees release on bond or alternative conditions. Id. ¶¶ 14, 15, Exs. 7, 8.
On August 4, 2017, defendants DOJ and DHS served responses to the Requests for Production and Interrogatories. Id. ¶¶ 12-15, Exs. 5-8. Defendants did not agree to produce any documents or provide any substantive responses to the Interrogatories. Id. Rather, Defendants objected to each Request for Production and Interrogatory on numerous grounds, including ambiguity, relevance, and undue burden. Id.
On August 7, 2017, the Court held a scheduling conference setting a discovery cut-off of April 27, 2018 and a bench trial for August 28, 2018. Dkts. 112, 113.
On August 24, 2017, Plaintiffs’ counsel sent a letter to Defendants’ counsel requesting to meet and confer pursuant to Local Rule 37-1 and setting forth the deficiencies in Defendants’ discovery responses. Smith Decl., ¶ 9, Ex. 2.
On August 28, 2017, Defendants filed a second Motion to Stay discovery pending the appeal of the preliminary injunction. Dkt. 115.
On September 25, 2017, Defendants’ counsel sent a letter to Plaintiffs’ counsel responding to the August 24, 2017 request to meet and confer. Smith Decl., ¶ 10, Ex. 3.
On October 2, 2017, the Ninth Circuit affirmed the preliminary injunction and lifted the stay. Dkts. 118, 119. On that same day, at a hearing before the Court, Defendants withdrew the Motion to Stay discovery. Dkt. 120. In addition, the Court clarified that it had imposed a discovery deadline as part of the scheduling order because the case did not appear to present a purely legal issue and “some discovery of some kind should be conducted.” Declaration of Douglas A. Smith in support of Plaintiffs’ Reply (“Smith Reply Decl.”), ¶ 7, Ex. 3.
On October 26, 2017, Plaintiffs’ counsel emailed Defendants’ counsel Plaintiffs’ portion of the Joint Stipulation in connection with the instant Motion to Compel. Smith Decl., ¶ 8, Ex. 1. On October 31, 2017, two days before Defendants’ portion of the Joint Stipulation was due, Defendants’ counsel requested an extension until November 20, 2017. Id. On November 2, 2017, Plaintiffs’ counsel denied the extension request, but offered to extend the deadline to November 6, 2017. Id. Defendants’ counsel responded requesting until November 9, 2017, and Plaintiffs’ counsel responded by granting Defendants’ counsel until November 8, 2017. Id. Defendants’ counsel acknowledged the November 8, 2017 deadline; however, as of November 9, 2017, Defendants’ counsel had not provided Defendants’ portion of the Joint Stipulation. Id.
On November 9, 2017, Plaintiffs filed the instant Motion to Compel. Dkt. 122. On November 16, 2017, Defendants filed an Opposition arguing the Motion to Compel is “unnecessary” because “the parties met and conferred in good faith on multiple occasions,”

Page 3 of 7

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk __

Case 5:16-cv-00620-JGB-KK Document 129 Filed 12/01/17 Page 4 of 7 Page ID #:2608

Plaintiffs rejected Defendants’ request for an extension of time “to resolve the discovery disputes,” and Defendants’ counsel “continues to reach out to Plaintiffs’ Counsel in good faith, and acknowledge that some discovery is appropriate.” Dkt. 125. On November 22, 2017, Plaintiffs filed a Reply. Dkt. 128. The Court finds the Motion to Compel suitable for decision without oral argument. The matter thus stands submitted.
II. PLAINTIFFS’ MOTION TO COMPEL IS GRANTED
A. APPLICABLE LAW
Federal Rule of Civil Procedure 26(b) provides that parties may obtain discovery regarding:
any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1). Relevant information “need not be admissible in evidence to be discoverable.” Id. A court “must limit the frequency or extent of discovery otherwise allowed” if “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C).
“A party seeking discovery may move for an order compelling an answer, . . . production, or inspection.” Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv). “[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer or respond.” Fed. R. Civ. P. 37(a)(4). “The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.” DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002) (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)). “[G]eneral or boilerplate objections such as ‘overly burdensome and harassing’ are improper - especially when a party fails to submit any evidentiary declarations supporting such objections.” A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 188 (C.D. Cal. 2006) (citing Paulsen v. Case Corp., 168 F.R.D. 285, 289 (C.D. Cal. 1996)).
Lastly, pursuant to Local Rule 7-12, a party’s failure to oppose a motion may be deemed consent to the granting of the motion. L.R. 7-12.
///

Page 4 of 7

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk __

Case 5:16-cv-00620-JGB-KK Document 129 Filed 12/01/17 Page 5 of 7 Page ID #:2609

B. DISCUSSION
First, Defendants fail to provide any justification for their failure to comply with the Joint Stipulation requirement. Moreover, Defendants appear to abandon their objections to the Requests for Production and Interrogatories by failing to support the objections or make any arguments regarding specific discovery requests in their Opposition. See Rawcar Grp., LLC v. Grace Med., Inc., No. 13-CV-1105-H (BLM), 2013 WL 12076572, at *3 (S.D. Cal. Dec. 16, 2013) (noting defendants’ failure to specifically oppose plaintiffs’ arguments or support their objections with declarations or exhibits and finding the discovery sought was reasonable). In fact, Defendants “acknowledge that some discovery is appropriate,” but fail to specify the scope of that acknowledgment. Pursuant to Local Rule 7-12, Defendants’ failure to oppose is deemed consent to accepting Plaintiffs’ argument that the objections are meritless.
Defendants’ sole argument in opposition to Plaintiffs’ Motion to Compel is that it is “unnecessary” because the parties were in the process of meeting and conferring “in good faith.” However, “Rule 37 does not require a party respond to every repetition of previously rejected arguments.” Laryngeal Mask Co. v. Ambu A/S, No. 07-CV-1988-DMS (NLS), 2009 WL 9530358, at *3 (S.D. Cal. Feb. 26, 2009). Here, Plaintiffs’ counsel sent a first letter attempting to meet and confer as early as August 24, 2017, which Defendants’ counsel did not respond to until September 25, 2017. Smith Decl., ¶¶ 9-10, Exs. 2, 3. Plaintiffs’ counsel waited another month before sending Defendants’ counsel Plaintiffs’ portion of the Joint Stipulation. Then, Plaintiffs’ counsel granted Defendants an extension to provide their portion of the Joint Stipulation, which Defendants failed to provide. Any confusion about a potential stay of discovery was resolved at the October 2, 2017 hearing, leaving at least one month for Defendants to provide supplemental responses before their portion of the Joint Stipulation was due on November 8, 2017. However, there is nothing in the record showing Defendants made a good faith effort to meet and confer prior to the filing of the instant Motion to Compel. In addition, Defendants do not appear to have served supplemental responses or produced any documents as of this date. Hence, the Motion to Compel does not appear to be “unnecessary.”
Plaintiffs’ discovery requests appear to seek information relevant to determining the scope of the class and application of the specific policies and procedures at issue. To the extent Defendants continue to argue that no discovery is appropriate because resolution of the Complaint involves a “purely legal issue,” the Court has previously stated the Complaint does “not appear to present a purely legal issue.” Smith Reply Decl., ¶ 7, Ex. 3.
Therefore, Plaintiffs’ Motion to Compel is GRANTED.
/// /// /// /// /// ///

Page 5 of 7

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk __

Case 5:16-cv-00620-JGB-KK Document 129 Filed 12/01/17 Page 6 of 7 Page ID #:2610

III. PLAINTIFFS’ REQUEST FOR EXPENSES IS GRANTED
A. APPLICABLE LAW
Pursuant to Federal Rule of Civil Procedure 37(a)(5)(A), if a discovery motion is granted, “the court must, after giving an opportunity to be heard, require the party . . . whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees,” unless “(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A).
In addition, the Local Rules provide strict procedures with which counsel must comply in bringing or opposing a discovery motion, including requiring a pre-filing conference of counsel and joint stipulation, and specifically provide that “[t]he failure of any counsel to comply with or cooperate in the foregoing procedures may result in the imposition of sanctions.” L.R. 37-4.
B. DISCUSSION
Here, Defendants failed to participate in the preparation of a joint stipulation, or oppose any specific request in the Motion to Compel. Further, Defendants’ failure to respond to discovery is not substantially justified. Thus, pursuant to Federal Rule of Civil Procedure 37(a)(5)(A) and Local Rule 37-4, Plaintiffs’ request for an award of reasonable expenses incurred in connection with compelling Defendants to comply with their discovery obligations is GRANTED in an amount to be determined after further briefing. Plaintiffs’ counsel may file a declaration regarding the amount reasonably incurred as a result of Defendants’ failure to timely respond to discovery within seven (7) days of the date of this Order. Defendants may file objections to Plaintiffs’ counsel’s declaration no later than three (3) court days after Plaintiffs’ counsel’s declaration is filed and served.
IV. CONCLUSION
Based upon the foregoing reasons and Defendants’ failure to oppose Plaintiffs’ Motion to Compel, IT IS THEREFORE ORDERED that:
(1) Plaintiffs’ Motion to Compel is GRANTED;
(2) Within fourteen (14) days of the date of this Order, Defendants DHS and DOJ shall provide to Plaintiff supplemental responses to the Requests for Production and Interrogatories and produce all responsive documents;

Page 6 of 7

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk __

Case 5:16-cv-00620-JGB-KK Document 129 Filed 12/01/17 Page 7 of 7 Page ID #:2611
(3) Plaintiffs’ counsel may file a declaration regarding the amount reasonably incurred as a result of Defendants’ failure to timely respond to discovery within seven (7) days of the date of this Order. Defendants may file objections to Plaintiffs’ counsel’s declaration no later than three (3) court days after Plaintiffs’ counsel’s declaration is filed and served; and
(4) The hearing on Plaintiffs’ Motion to Compel set for December 7, 2017 is VACATED.

Page 7 of 7

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk __

 
 Case 5:16-cv-00620-JGB-KK Document 150 Filed 01/03/18 Page 1 of 4 Page ID #:3016

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. EDCV 16-620-JGB (KKx) Title Xochitl Hernandez, et al. v. Jeff Sessions, et al.

Date January 3, 2018

Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE

DEB TAYLOR Deputy Clerk

Not Reported Court Reporter

Attorney(s) Present for Plaintiff(s): None Present

Attorney(s) Present for Defendant(s): None Present

Proceedings: Order Awarding Plaintiffs’ Reasonable Attorney’s Fees and Costs Re: Plaintiffs’ Motion to Compel [Dkt. 122]

I. INTRODUCTION
On December 1, 2017, the Court granted Plaintiffs Xochitl Hernandez and Cesar Matias, for themselves and on behalf of a certified class of similarly situated individuals (“Plaintiffs”)’s Motion to Compel seeking supplemental responses and production of responsive documents without objection from defendants Department of Justice (“DOJ”) and Department of Homeland Security (“DHS”) (“Motion to Compel”) and found an award of reasonable attorney’s fees and costs to Plaintiffs was warranted. ECF Docket No. (“Dkt.”) 129. On December 8, 2017, Plaintiffs filed a declaration from their counsel Douglas A. Smith seeking the sum of $34,994.00 as fees and costs incurred in preparing Plaintiffs’ Motion to Compel. Dkt. 131, Declaration of Douglas A. Smith (“Smith Decl.”).
On December 13, 2017, Defendants filed an objection to Plaintiffs’ counsel’s declaration arguing the hours worked and hourly rates charged in preparing the Motion to Compel are unreasonable. Dkt. 134.
For the reasons set forth below, the Court awards Plaintiffs reasonable attorney’s fees and costs in the sum of $22,820.00.
///

Page 1 of 4

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk __

Case 5:16-cv-00620-JGB-KK Document 150 Filed 01/03/18 Page 2 of 4 Page ID #:3017

II. LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 37(a)(5)(A), if a discovery motion is granted, “the court must, after giving an opportunity to be heard, require the party . . . whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees,” unless “(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A).
When an award of attorney’s fees is authorized, the court must calculate the proper amount of the award to ensure that it is reasonable. Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983). Reasonableness is generally determined using the “lodestar” method, where a court considers the work completed by the attorneys and multiplies “the number of hours reasonably expended on the litigation by the reasonable hourly rate.” Gracie v. Gracie, 217 F.3d 1060, 1070 (9th Cir. 2000). The moving party has the burden to produce evidence that the rates and hours worked are reasonable. See Intel Corp. v. Terabyte Int’l, 6 F.3d 614, 623 (9th Cir. 1983).
III. DISCUSSION
Here, Plaintiffs’ Motion to Compel was granted in its entirety, and the Court found Defendants’ failure to respond to discovery was not substantially justified. Hence, Plaintiffs’ request for an award of reasonable costs and expenses incurred in bringing the Motion to Compel was granted. However, as discussed below, the Court finds the requested amounts unreasonable and, thus, reduces the sum to be awarded accordingly.
A. REASONABLENESS OF HOURS SPENT
In determining the reasonableness of hours spent preparing a motion, the Court may exclude any hours that are excessive, redundant, or otherwise unnecessary. Hensley, 461 U.S. at 434. Here, the Court finds the amount of time, i.e. 44.1 hours, preparing and revising the Joint Stipulation to be excessive. Ms. Hein, a fifth-year associate at Skadden, Arps, Slate, Meagher & Flom LLP (“Skadden”) spent 12.9 hours preparing the Joint Stipulation, and then an additional 18.2 hours revising the Joint Stipulation. Nevertheless, the Joint Stipulation still required 4.8 hours of revision from Mr. Smith, a tenth-year associate at Skadden; 6.4 hours of revision from Mr. Kaufman, a tenth-year attorney at the ACLU; and one hour and 49 minutes of revision from Mr. Kang, a fourth-year attorney at the ACLU. The Court recognizes the Joint Stipulation was 129 pages long and required addressing numerous objections. However, the Court finds the time Ms. Hein spent preparing, and particularly revising, the Joint Stipulation, as well as the time spent by two tenth-year attorneys to revise her work, to be excessive. Hence, the Court finds it appropriate to strike 16.2 hours from Ms. Hein’s time spent revising the Joint Stipulation, and

Page 2 of 4

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk __

Case 5:16-cv-00620-JGB-KK Document 150 Filed 01/03/18 Page 3 of 4 Page ID #:3018

2.4 hours of Mr. Smith’s time and 3.2 hours of Mr. Kaufman’s time spent revising the Joint Stipulation. See Hensley, 461 U.S. at 434.
Defendants also object that it is unreasonable for Mr. Smith, a tenth-year attorney, to spend 18.2 hours preparing a reply brief rather than assigning the work to an attorney at a lower billing rate. Dkt. 134 at 15. Plaintiffs explain Ms. Hein was not at Skadden when the Reply needed to be prepared. The Court does not fault Plaintiffs for using an attorney familiar with the case to prepare the Reply. In addition, the Court agrees with Plaintiffs that Defendants’ Opposition to the Motion to Compel failed to make any attempt to argue the merits of Defendants’ objections to discovery, thus requiring Plaintiffs to change focus in the Reply. Therefore, the Court finds the amount of time spent by Mr. Smith on the Reply to be reasonable.
B. REASONABLENESS OF COUNSELS’ RATES
To assist the Court in calculating the lodestar, the fee applicant must submit “satisfactory evidence . . . that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895-96 n.11, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984). The relevant community is that in which the district court sits. See Schwarz v. Sec’y of Health & Human Serv., 73 F.3d 895, 906 (9th Cir. 1995). Both the United States Supreme Court and California Supreme Court have held that fee awards to public interest attorneys who do not charge their clients are “calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel.” Blum, 465 U.S. at 895; see also Folsom v. Butte Cty. Ass’n of Gov’ts, 32 Cal. 3d 668, 683-84, 186 Cal. Rptr. 589, 652 P.2d 437 (1982) (same). “The proper reference point in determining an appropriate fee award is the rates charged by private attorneys in the same legal market as prevailing counsel.” Trevino v. Gates, 99 F.3d 911, 925 (9th Cir. 1996); see also Blum, 465 U.S. at 895, n.11 (“[R]ates charged in private representations may afford relevant comparisons.”). In addition, “[w]hen a fee applicant fails to meet its burden of establishing the reasonableness of the requested rates, . . . the court may exercise its discretion to determine reasonable hourly rates based on its experience and knowledge of prevailing rates in the community.” Bademyan v. Receivable Mgmt. Servs. Corp., 2009 WL 605789 at *5 (C.D. Cal. Mar. 9, 2009).
Plaintiffs’ counsel seeks hourly rates of $450.00 for Ms. Hein and Mr. Kang and $605.00 for Mr. Smith and Mr. Kaufman. As evidence that these rates are reasonable, Plaintiffs’ counsel attests to each attorney’s experience in civil rights and class action litigation, and success in and since law school. Smith Decl., ¶¶ 3-10, 22; see United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990) (“Affidavits of the plaintiffs’ attorney and other attorneys regarding prevailing fees in the community, and rate determination in other cases, particularly those setting a rate for the plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.”). Ms. Hein, who was a fifth-year associate at Skadden, is a 2012 graduate of Columbia Law School, where she was a member of the law review. Smith Decl., ¶ 6. Mr. Smith, a tenth-year associate at Skadden, is a 2006 graduate of the College of William & Mary Law School and clerked for several state and federal judges. Id. ¶ 5. Mr. Kaufman, a tenth-

Page 3 of 4

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk __

Case 5:16-cv-00620-JGB-KK Document 150 Filed 01/03/18 Page 4 of 4 Page ID #:3019

year attorney and 2007 graduate of Stanford Law School, is the Deputy Director of Advocacy and the Sullivan & Cromwell Access to Justice Senior Staff Attorney with the ACLU. Id. ¶ 9. Mr. Kang, a fourth-year attorney, is a 2011 graduate from New York University Law School who clerked for two years before being admitted to the California bar in 2013. Id. ¶ 10. Mr. Smith also provides an example of a case where a federal court approved comparable rates. Id. ¶ 22.
Defendants object that the Franco-Gonzalez case submitted by Plaintiffs is irrelevant because it involved a lump-sum settlement agreement. Dkt. 134 at 16. Defendants provide a number of cases where courts in the Central District have approved lower rates. Id. at 14-15. However, those cases either involve an entirely different area of practice and/or awarded the attorneys the amount they sought. This case requires knowledge of complex civil rights litigation and class representation. Nevertheless, while Skadden is recognized in this district as “one of the largest and most well-known national firms in the country,” Keegan v. Am. Honda Motor Co, Inc., No. CV10-09508-MMM (AJWx), 2014 WL 12551213, at *23 (C.D. Cal. Jan. 21, 2014), Plaintiffs fail to satisfy their burden to show that $605 is a reasonable hourly rate for Mr. Smith and Mr. Kaufman. As Defendants point out, the Franco-Gonzalez case only demonstrates a rate of $535.00 for an attorney with eight years of experience is reasonable, but contains no information regarding how much would be appropriate for an additional two years of experience.
Therefore, based on the Court’s general knowledge of rates in the Los Angeles legal community, the Court finds hourly rates of $550.00 for Mr. Smith and Mr. Kaufman and $450.00 for Ms. Hein and Mr. Kang to be reasonable. See, e.g., Charlebois v. Angels Baseball LP, 993 F. Supp. 2d 1109, 1118 (C.D. Cal. 2012) (holding $450.00 was below the “high end of the market” for a sixth year class counsel practicing civil rights litigation in Southern California); Rauda v. City of L.A., No. CV08–3128–CAS (PJW), 2010 WL 5375958, at *4 (C.D. Cal. Dec. 20, 2010) (finding a range of $525 to $650 to be reasonable for attorneys who succeeded on various civil rights and tort claims).
In summary, the Court awards Ms. Hein 12.9 hours to prepare the Joint Stipulation and 2 hours to revise the Joint Stipulation at $450.00 per hour, for a total of $6,705.00; Mr. Smith 2.4 hours to review the Joint Stipulation, 2.7 hours to prepare the Motion to Compel, and 18.2 hours to prepare the Reply at $550.00 per hour, for a total of $12,815.00; Mr. Kaufman 3.2 hours to review the Joint Stipulation, and 0.7 hours to prepare the Motion to Compel at $550.00 per hour, for a total of $2,145.00; and Mr. Kang 1 hour and 49 minutes to review the Joint Stipulation, 25 minutes to meet and confer with Defendants, and twenty minutes to review the Reply at $450.00 per hour, for a total of $1,155.00. Accordingly, the Court finds an award of $22,820.00 to be reasonable under the circumstances of this case.
IV. CONCLUSION
IT IS THEREFORE ORDERED that Defendants shall pay to Plaintiffs the sum of $22,820.00 as reasonable attorney’s fees and costs pursuant to Federal Rule of Civil Procedure 37(a)(5)(A) within thirty (30) days of the date of this Order.

Page 4 of 4

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk __

 
 ACCO,(KKx),DISCOVERY,MANADR,PROTORD,SM
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Eastern Division − Riverside)
CIVIL DOCKET FOR CASE #: 5:16−cv−00620−JGB−KK

Xochitl Hernandez et al v. Loretta Lynch et al Assigned to: Judge Jesus G. Bernal Referred to: Magistrate Judge Kenly Kiya Kato Related Case: 8:17−cv−00367−JGB−KK
Case in other court: 9th CCA, 16−56829 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 04/06/2016 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Xochitl Hernandez for themselves and on behalf of a class of similarly−situated individuals

represented by Ahilan T Arulanantham ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 213−977−9500 Fax: 213−977−5299 Email: aarulanantham@aclu−sc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Eric Sloan Skadden Arps Slate Meagher and Flom LLP 300 South Grand Avenue Suite 3400 Los Angeles, CA 90071−3144 213−687−5276 Fax: 213−621−5276 Email: matthew.sloan@skadden.com LEAD ATTORNEY 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 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ashley Lynn Phillips Skadden Arps Slate Meagher and Flom LLP 300 South Grand Avenue Suite 3400 Los Angeles, CA 90071 213−687−5644 Fax: 213−687−5600 Email: ashley.phillips@skadden.com ATTORNEY TO BE NOTICED

Celso Javier Perez ACLU Foundation Immigrants Rights Project 125 Broad Street 18th Floor New York, NY 10004 646−905−8935 Fax: 212−549−2654 Email: cperez@aclu.org ATTORNEY TO BE NOTICED

David Hausman ACLU Foundation Immigrants Rights Project 125 Broad Street 18th Floor New York, NY 10004 212−549−2549 Fax: 212−549−2654 Email: dhausman@aclu.org TERMINATED: 07/29/2019 PRO HAC VICE
Devon Lashae Hein 321 East 2nd Street Los Angeles, CA 90012 (213) 894−2936 Email: devon.hein@skadden.com TERMINATED: 11/09/2017
Douglas Allen Smith Skadden Arps Slate Meagher and Flom LLP 300 South Grand Avenue Suite 3400 Los Angeles, CA 90071 213−687−5029 Fax: 213−621−5029 Email: douglas.smith@skadden.com ATTORNEY TO BE NOTICED
Erica Sedler Skadden Arps Slate Meagher and Flom LLP 300 South Grand Avenue Suite 3400 Los Angeles, CA 90071 213−687−5000 Fax: 213−687−5600 Email: esedler@loeb.com TERMINATED: 11/19/2019
Grayce S Patricia Zelphin Skadden Arps Slate Meagher and Flom LLP 300 South Grand Avenue Suite 3400 Los Angeles, CA 90071 213−687−5290 Fax: 213−687−5600 Email: grayce.frink@skadden.com TERMINATED: 01/05/2017
John Christopher Korevec Skadden Arps Slate Meagher and Flom LLP 300 South Grand Avenue Suite 3400 Los Angeles, CA 90071 213−687−5000 Fax: 213−687−5600 Email: john.korevec@skadden.com TERMINATED: 06/13/2018
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 PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Erik Delgado Skadden Arps Slate Meagher and Flom LLP 300 South Grand Avenue Suite 3400 Los Angeles, CA 90071 213−687−5556 Fax: 213−621−5556 Email: matthew.delgado@skadden.com TERMINATED: 07/17/2018
Michael David Hidalgo Skadden Arps Slate Meagher and Flom LLP 300 South Grand Avenue Suite 3400 Los Angeles, CA 90017 213−687−5347 Fax: 213−621−5347 Email: michael.hidalgo@skadden.com TERMINATED: 06/22/2018 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
Olivia Powar Skadden Arps Slate Meagher and Flom LLP 300 South Grand Avenue Suite 3400 Los Angeles, CA 90071 213−687−5696 Fax: 213−687−5600 Email: olivia.powar@skadden.com TERMINATED: 07/30/2019 ATTORNEY TO BE NOTICED
Stephen Bonggyun Kang ACLU Immigrants Rights Project 39 Drumm Street San Francisco, CA 94111 415−343−0763 Fax: 415− 395−0950 Email: skang@aclu.org ATTORNEY TO BE NOTICED
Winston Ping Hsiao Skadden Arps Slate Meagher and Flom LLP 300 South Grand Avenue Suite 3400 Los Angeles, CA 90071 213−687−5219 Fax: 213−621−5219

Plaintiff
Cesar Matias for themselves and on behalf of a class of similarly−situated individuals

Email: winston.hsiao@skadden.com ATTORNEY TO BE NOTICED
represented by Ahilan T Arulanantham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Eric Sloan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Bryan Kaufman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ashley Lynn Phillips (See above for address) ATTORNEY TO BE NOTICED
Celso Javier Perez (See above for address) ATTORNEY TO BE NOTICED
David Hausman (See above for address) TERMINATED: 07/29/2019 PRO HAC VICE
Devon Lashae Hein (See above for address) TERMINATED: 11/09/2017
Douglas Allen Smith (See above for address) ATTORNEY TO BE NOTICED
Erica Sedler (See above for address) TERMINATED: 11/19/2019
Grayce S Patricia Zelphin (See above for address) TERMINATED: 01/05/2017
John Christopher Korevec (See above for address) TERMINATED: 06/13/2018
Judy Rabinovitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Erik Delgado (See above for address) TERMINATED: 07/17/2018
Michael David Hidalgo (See above for address) TERMINATED: 06/22/2018

V.
Defendant
Loretta Lynch Attorney General

ATTORNEY TO BE NOTICED
Michael K T Tan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Olivia Powar (See above for address) TERMINATED: 07/30/2019 ATTORNEY TO BE NOTICED
Stephen Bonggyun Kang (See above for address) ATTORNEY TO BE NOTICED
Winston Ping Hsiao (See above for address) ATTORNEY TO BE NOTICED
represented by Lindsay M Vick US Department of Justice Civil Division − Office of Immigration Litigation Benjamin Franklin Station PO Box 868 Washington, DC 20044 202−532−4023 Fax: 202−305−7000 Email: lindsay.vick2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sherease Rosalyn Pratt US Department of Justice Office of Immigration Litigation − Civil Division P O Box 868 Ben Franklin Station Washington, DC 20044 202−616−0063 Fax: 202−616−8962 Email: sherease.pratt@usdoj.gov TERMINATED: 02/15/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adrienne Zack US Department of Justice Civil Division − Office of Immigration Litigation Ben Franklin Station P O Box 868 Washington, DC 20044 202−598−8259 Fax: 202−305−7000 Email: adrienne.m.zack@usdoj.gov TERMINATED: 08/17/2018
Brian Christopher Ward US Department of Justice Office of Immigration Litigation − Civil

Division PO Box 868 Ben Franklin Station Washington, DC 20044−0868 202−616−9121 Fax: 202−305−7000 Email: brian.c.ward@usdoj.gov ATTORNEY TO BE NOTICED
Courtney Elizabeth Moran US Department of Justice Civil Division − Office of Immigration Litigation PO Box 868 Ben Franklin Station Washington, DC 20002 202−514−4587 Fax: 202−305−7000 Email: courtney.e.moran@usdoj.gov ATTORNEY TO BE NOTICED
Dhruman Y Sampat US Department of Justice Office of Immigration Litigation Ben Franklin Station PO Box 868 Washington, DC 20044 202−532−4281 Email: dhruman.y.sampat@usdoj.gov ATTORNEY TO BE NOTICED
Gisela A Westwater US Department of Justice Office of Immigration Litigation − Civil Division PO Box 868 Ben Franklin Station Washington, DC 20044 202−532−4174 Fax: 202−616−8962 Email: gisela.westwater@usdoj.gov TERMINATED: 08/27/2019
Joseph D Hardy , Jr US Department of Justice Civil Division − Office of Immigration Litigation PO Box 868 Benjamin Franklin Station Washington, DC 20044 202−305−7972 Fax: 202−353−7224 Email: joseph.hardy@usdoj.gov TERMINATED: 06/14/2019
Katherine J Shinners U.S. Department of Justice, Civil Division Office of Immigration Litigation − District Court Section P.O. Box 868 Ben Franklin Station Washington, DC 20044 202−598−8259 Fax: 202−305−7000 Email: Katherine.J.Shinners@usdoj.gov ATTORNEY TO BE NOTICED
Ozlem B Barnard US Department of Justice

Defendant
Juan P Osuna Director, Executive Office for Immigration Review

Office of Immigration Litigation − District Court Section PO Box 868 Ben Franklin Station Washington, DC 20044 202−307−4469 Fax: 202−305−7000 Email: ozlem.b.barnard@usdoj.gov ATTORNEY TO BE NOTICED
Steven A Platt 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: steven.a.platt@usdoj.gov TERMINATED: 04/13/2018 ATTORNEY TO BE NOTICED
Yamileth G Davila United States Department of Justice Office of Immigration Litigation − District Court Section P O Box 878 Ben Franklin Station Washington, DC 20044 202−305−0137 Fax: 202−307−8801 Email: yamileth.g.davila@usdoj.gov TERMINATED: 06/22/2018
represented by Lindsay M Vick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sherease Rosalyn Pratt (See above for address) TERMINATED: 02/15/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adrienne Zack (See above for address) TERMINATED: 08/17/2018
Brian Christopher Ward (See above for address) ATTORNEY TO BE NOTICED
Courtney Elizabeth Moran (See above for address) ATTORNEY TO BE NOTICED
Dhruman Y Sampat (See above for address) ATTORNEY TO BE NOTICED
Gisela A Westwater (See above for address) TERMINATED: 08/27/2019

Defendant
Jeh Johnson Secretary, Department of Homeland Security

Joseph D Hardy , Jr (See above for address) TERMINATED: 06/14/2019
Katherine J Shinners (See above for address) ATTORNEY TO BE NOTICED
Ozlem B Barnard (See above for address) ATTORNEY TO BE NOTICED
Steven A Platt (See above for address) TERMINATED: 04/13/2018 ATTORNEY TO BE NOTICED
Yamileth G Davila (See above for address) TERMINATED: 06/22/2018
represented by Lindsay M Vick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sherease Rosalyn Pratt (See above for address) TERMINATED: 02/15/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adrienne Zack (See above for address) TERMINATED: 08/17/2018
Brian Christopher Ward (See above for address) ATTORNEY TO BE NOTICED
Courtney Elizabeth Moran (See above for address) ATTORNEY TO BE NOTICED
Dhruman Y Sampat (See above for address) ATTORNEY TO BE NOTICED
Gisela A Westwater (See above for address) TERMINATED: 08/27/2019
Joseph D Hardy , Jr (See above for address) TERMINATED: 06/14/2019
Katherine J Shinners (See above for address) ATTORNEY TO BE NOTICED
Ozlem B Barnard (See above for address)

Defendant
Sarah Saldana Director, Immigration and Customs enforcement (ICE)

ATTORNEY TO BE NOTICED
Steven A Platt (See above for address) TERMINATED: 04/13/2018 ATTORNEY TO BE NOTICED
Yamileth G Davila (See above for address) TERMINATED: 06/22/2018
represented by Lindsay M Vick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sherease Rosalyn Pratt (See above for address) TERMINATED: 02/15/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adrienne Zack (See above for address) TERMINATED: 08/17/2018
Brian Christopher Ward (See above for address) ATTORNEY TO BE NOTICED
Courtney Elizabeth Moran (See above for address) ATTORNEY TO BE NOTICED
Dhruman Y Sampat (See above for address) ATTORNEY TO BE NOTICED
Gisela A Westwater (See above for address) TERMINATED: 08/27/2019
Joseph D Hardy , Jr (See above for address) TERMINATED: 06/14/2019
Katherine J Shinners (See above for address) ATTORNEY TO BE NOTICED
Ozlem B Barnard (See above for address) ATTORNEY TO BE NOTICED
Steven A Platt (See above for address) TERMINATED: 04/13/2018 ATTORNEY TO BE NOTICED
Yamileth G Davila (See above for address) TERMINATED: 06/22/2018

Defendant David Jennings Los Angeles Field Office Director of ICE
Defendant James Janecka Warden, Adelanto Detention Facility

represented by Lindsay M Vick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sherease Rosalyn Pratt (See above for address) TERMINATED: 02/15/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adrienne Zack (See above for address) TERMINATED: 08/17/2018
Brian Christopher Ward (See above for address) ATTORNEY TO BE NOTICED
Courtney Elizabeth Moran (See above for address) ATTORNEY TO BE NOTICED
Dhruman Y Sampat (See above for address) ATTORNEY TO BE NOTICED
Gisela A Westwater (See above for address) TERMINATED: 08/27/2019
Joseph D Hardy , Jr (See above for address) TERMINATED: 06/14/2019
Katherine J Shinners (See above for address) ATTORNEY TO BE NOTICED
Ozlem B Barnard (See above for address) ATTORNEY TO BE NOTICED
Steven A Platt (See above for address) TERMINATED: 04/13/2018 ATTORNEY TO BE NOTICED
Yamileth G Davila (See above for address) TERMINATED: 06/22/2018
represented by Lindsay M Vick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sherease Rosalyn Pratt (See above for address) TERMINATED: 02/15/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Christina Holland Jail Administrator, Santa Ana City Jail TERMINATED: 11/01/2019

Adrienne Zack (See above for address) TERMINATED: 08/17/2018
Brian Christopher Ward (See above for address) ATTORNEY TO BE NOTICED
Courtney Elizabeth Moran (See above for address) ATTORNEY TO BE NOTICED
Dhruman Y Sampat (See above for address) ATTORNEY TO BE NOTICED
Gisela A Westwater (See above for address) TERMINATED: 08/27/2019
Joseph D Hardy , Jr (See above for address) TERMINATED: 06/14/2019
Katherine J Shinners (See above for address) ATTORNEY TO BE NOTICED
Ozlem B Barnard (See above for address) ATTORNEY TO BE NOTICED
Steven A Platt (See above for address) TERMINATED: 04/13/2018 ATTORNEY TO BE NOTICED
Yamileth G Davila (See above for address) TERMINATED: 06/22/2018
represented by Lindsay M Vick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sherease Rosalyn Pratt (See above for address) TERMINATED: 02/15/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adrienne Zack (See above for address) TERMINATED: 08/17/2018
Brian Christopher Ward (See above for address) ATTORNEY TO BE NOTICED
Courtney Elizabeth Moran (See above for address)

Defendant
Carlos Roja Chief, Santa Ana City Department TERMINATED: 11/01/2019

ATTORNEY TO BE NOTICED
Dhruman Y Sampat (See above for address) ATTORNEY TO BE NOTICED
Gisela A Westwater (See above for address) TERMINATED: 08/27/2019
Joseph D Hardy , Jr (See above for address) TERMINATED: 06/14/2019
Katherine J Shinners (See above for address) ATTORNEY TO BE NOTICED
Ozlem B Barnard (See above for address) ATTORNEY TO BE NOTICED
Yamileth G Davila (See above for address) TERMINATED: 06/22/2018
Laura A Rossini Santa Ana City Attorneys Office 20 Civic Center Plaza M29 PO Box 1988 Santa Ana, CA 92702 714−647−5201 Fax: 714−647−6515 Email: lrossini@santa−ana.org ATTORNEY TO BE NOTICED
represented by Lindsay M Vick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sherease Rosalyn Pratt (See above for address) TERMINATED: 02/15/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adrienne Zack (See above for address) TERMINATED: 08/17/2018
Brian Christopher Ward (See above for address) ATTORNEY TO BE NOTICED
Courtney Elizabeth Moran (See above for address) ATTORNEY TO BE NOTICED
Dhruman Y Sampat (See above for address) ATTORNEY TO BE NOTICED

Defendant
Jon Briggs Captain, Orange County Sheriff's Department TERMINATED: 11/01/2019

Gisela A Westwater (See above for address) TERMINATED: 08/27/2019
Joseph D Hardy , Jr (See above for address) TERMINATED: 06/14/2019
Katherine J Shinners (See above for address) ATTORNEY TO BE NOTICED
Ozlem B Barnard (See above for address) ATTORNEY TO BE NOTICED
Yamileth G Davila (See above for address) TERMINATED: 06/22/2018
Laura A Rossini (See above for address) ATTORNEY TO BE NOTICED
represented by Lindsay M Vick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sherease Rosalyn Pratt (See above for address) TERMINATED: 02/15/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven C Miller Office of the County Counsel County of Orange 333 West Santa Ana Boulevard Suite 407 Santa Ana, CA 92701 714−834−3300 Fax: 714−834−2359 Email: steven.miller@coco.ocgov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adrienne Zack (See above for address) TERMINATED: 08/17/2018
Brian Christopher Ward (See above for address) ATTORNEY TO BE NOTICED
Courtney Elizabeth Moran (See above for address) ATTORNEY TO BE NOTICED
Dhruman Y Sampat (See above for address) ATTORNEY TO BE NOTICED
Gisela A Westwater

Defendant Mike Kreuger Captain, Orange County Sheriff's Department TERMINATED: 11/01/2019
Defendant

(See above for address) TERMINATED: 08/27/2019
Joseph D Hardy , Jr (See above for address) TERMINATED: 06/14/2019
Katherine J Shinners (See above for address) ATTORNEY TO BE NOTICED
Ozlem B Barnard (See above for address) ATTORNEY TO BE NOTICED
Yamileth G Davila (See above for address) TERMINATED: 06/22/2018
represented by Lindsay M Vick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sherease Rosalyn Pratt (See above for address) TERMINATED: 02/15/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Christopher Ward (See above for address) ATTORNEY TO BE NOTICED
Courtney Elizabeth Moran (See above for address) ATTORNEY TO BE NOTICED
Dhruman Y Sampat (See above for address) ATTORNEY TO BE NOTICED
Gisela A Westwater (See above for address) TERMINATED: 08/27/2019
Joseph D Hardy , Jr (See above for address) TERMINATED: 06/14/2019
Katherine J Shinners (See above for address) ATTORNEY TO BE NOTICED
Ozlem B Barnard (See above for address) ATTORNEY TO BE NOTICED
Yamileth G Davila (See above for address) TERMINATED: 06/22/2018

Sandra Hutchens Sheriff, Orange County TERMINATED: 11/01/2019
Special Master The Honorable Rosalyn Chapman (Ret.) (Ret.) Date Filed # Docket Text

represented by Lindsay M Vick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sherease Rosalyn Pratt (See above for address) TERMINATED: 02/15/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven C Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adrienne Zack (See above for address) TERMINATED: 08/17/2018
Brian Christopher Ward (See above for address) ATTORNEY TO BE NOTICED
Courtney Elizabeth Moran (See above for address) ATTORNEY TO BE NOTICED
Dhruman Y Sampat (See above for address) ATTORNEY TO BE NOTICED
Gisela A Westwater (See above for address) TERMINATED: 08/27/2019
Joseph D Hardy , Jr (See above for address) TERMINATED: 06/14/2019
Katherine J Shinners (See above for address) ATTORNEY TO BE NOTICED
Ozlem B Barnard (See above for address) ATTORNEY TO BE NOTICED
Yamileth G Davila (See above for address) TERMINATED: 06/22/2018
represented by Rosalyn Chapman (Ret.) JAMS 555 West Fifth Street 32nd Floor Los Angeles, CA 90013 Email: rchapman@jamsadr.com PRO SE

04/06/2016 04/06/2016 04/06/2016 04/06/2016 04/06/2016 04/06/2016 04/06/2016
04/06/2016
04/06/2016
04/06/2016 04/08/2016 04/12/2016

1 COMPLAINT Receipt No: 0973−17596015 − Fee: $400, filed by Plaintiffs−Petitioners Cesar Matias, Xochitl Hernandez. (Attorney Michael Bryan Kaufman added to party Xochitl Hernandez(pty:pla), Attorney Michael Bryan Kaufman added to party Cesar Matias(pty:pla))(Kaufman, Michael) (Entered: 04/06/2016)
2 CIVIL COVER SHEET filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Kaufman, Michael) (Entered: 04/06/2016)
3 NOTICE of Interested Parties filed by Plaintiffs−Petitioners Xochitl Hernandez, Cesar Matias, identifying all Plaintiffs and Defendants. (Kaufman, Michael) (Entered: 04/06/2016)
4 Request for Clerk to Issue Summons on Complaint (Attorney Civil Case Opening), 1 filed by Plaintiffs−Petitioners Xochitl Hernandez, Cesar Matias. (Kaufman, Michael) (Entered: 04/06/2016)
5 NOTICE OF ASSIGNMENT to District Judge Jesus G. Bernal and Magistrate Judge Kenly Kiya Kato. (et) (Entered: 04/06/2016)
6 NOTICE TO PARTIES OF COURT−DIRECTED ADR PROGRAM filed. (et) (Entered: 04/06/2016)
7 NOTICE OF FILING FEE DUE on Pro Hac Vice Application mailed to attorney Michael Tan for Plaintiffs Xochitl Hernandez, Cesar Matias. re Complaint (Attorney Civil Case Opening) 1 . Pro Hac Vice application has not been received by the court. Please return your completed Application of Non−Resident Attorney to Appear in a Specific Case, form G−64, or a copy of the Notice of Electronic Filing of your application and the $325.00 fee and this notice immediately. Out−of−state federal government attorneys who are not employed by the U.S. Department of Justice are required to file a Pro Hac Vice application;no filing fee is required. You have been removed as counsel of record from this case for failure to submit this filing fee. (et) (Entered: 04/06/2016)
8 NOTICE OF FILING FEE DUE on Pro Hac Vice Application mailed to attorney Judy Rabinovitz for Plaintiffs Xochitl Hernandez, Cesar Matias. re Complaint (Attorney Civil Case Opening) 1 . Pro Hac Vice application has not been received by the court. Please return your completed Application of Non−Resident Attorney to Appear in a Specific Case, form G−64, or a copy of the Notice of Electronic Filing of your application and the $325.00 fee and this notice immediately. Out−of−state federal government attorneys who are not employed by the U.S. Department of Justice are required to file a Pro Hac Vice application;no filing fee is required. You have been removed as counsel of record from this case for failure to submit this filing fee. (et) (Entered: 04/06/2016)
9 NOTICE OF DEFICIENCIES in Request to Issue Summons RE: Summons Request 4 . The following error(s) was found: The caption of the summons must match the caption of the complaint verbatim. If the caption is too large to fit in the space provided, enter the name of the first party and then write see attached.Next, attach a face page of the complaint or a second page addendum to the Summons. The summons cannot be issued until this defect has been corrected. Please correct the defect and re−file your request. (et) (Entered: 04/06/2016)
10 Request for Clerk to Issue Summons on Complaint (Attorney Civil Case Opening), 1 filed by Plaintiffs−Petitioners Xochitl Hernandez, Cesar Matias. (Kaufman, Michael) (Entered: 04/06/2016)
11 21 DAY Summons Issued re Complaint (Attorney Civil Case Opening), 1 as to defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (mrgo) (Entered: 04/08/2016)
12 APPLICATION for attorney Judy Rabinovitz to Appear Pro Hac Vice (PHV Fee of $325 receipt number 0973−17633304 paid.) filed by Plaintiffs−Petitioners Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Proposed Order) (Kaufman, Michael) (Entered: 04/12/2016)

04/12/2016 04/14/2016 04/14/2016 04/18/2016 04/22/2016 04/22/2016 04/22/2016 04/22/2016 04/22/2016 04/22/2016 04/22/2016 04/22/2016

13 APPLICATION for attorney Michael Tan to Appear Pro Hac Vice (PHV Fee of $325 receipt number 0973−17633378 paid.) filed by Plaintiffs−Petitioners Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Proposed Order) (Kaufman, Michael) (Entered: 04/12/2016)
14 ORDER by Judge Jesus G. Bernal: granting 12 APPLICATION to Appear Pro Hac Vice by Attorney Judy Rabinovitz on behalf of Plaintiffs, Xochitl Hernandez and Cesar Matias, designating Michael Kaufman as local counsel. (iva) (Entered: 04/15/2016)
15 ORDER by Judge Jesus G. Bernal: granting 13 APPLICATION to Appear Pro Hac Vice by Attorney Michael K.T. Tan on behalf of Plaintiffs, Xochitl Hernandez and Cesar Matias, designating Michael Kaufman as local counsel. (iva) (Entered: 04/15/2016)
16 STANDING ORDER upon filing of the complaint by Judge Jesus G. Bernal. (ima) (Entered: 04/18/2016)
17 Notice of Appearance or Withdrawal of Counsel: for attorney Douglas Allen Smith counsel for Plaintiff Xochitl Hernandez. Adding Matthew E. Sloan as counsel of record for Plaintiffs for the reason indicated in the G−123 Notice. Filed by Plaintiff XOCHITL HERNANDEZ et al.. (Smith, Douglas) (Entered: 04/22/2016)
18 NOTICE of Change of Attorney Business or Contact Information: for attorney Douglas Allen Smith counsel for Plaintiff Xochitl Hernandez. Changing Firm Name to Skadden, Arps, Slate, Meagher & Flom LLP. Changing email to Doug.Smith@skadden.com. Filed by Plainitff XOCHITL HERNANDEZ et al.. (Smith, Douglas) (Entered: 04/22/2016)
19 NOTICE of Change of Attorney Business or Contact Information: for attorney Douglas Allen Smith counsel for Plaintiff Xochitl Hernandez. Changing Firm Name to Skadden, Arps, Slate, Meagher & Flom LLP. Changing email to Douglas.Smith@skadden.com. Filed by Plaintiff XOCHITL HERNANDEZ et al.. (Smith, Douglas) (Entered: 04/22/2016)
20 NOTICE of Change of Attorney Business or Contact Information: for attorney Douglas Allen Smith counsel for Plaintiff Xochitl Hernandez. Changing Firm Name to Skadden, Arps, Slate, Meagher & Flom LLP. Changing e−mail to Winston.Hsiao@skadden.com. Filed by Plaintiff XOCHITL HERNANDEZ et al.. (Smith, Douglas) (Entered: 04/22/2016)
21 NOTICE of Change of Attorney Business or Contact Information: for attorney Douglas Allen Smith counsel for Plaintiff Xochitl Hernandez. Changing Firm Name to Skadden, Arps, Slate, Meagher & Flom LLP. Changing e−mail to Grayce.Frink@skadden.com. Filed by Plaintiff Xochitl Hernandez et al.. (Smith, Douglas) (Entered: 04/22/2016)
22 NOTICE of Change of Attorney Business or Contact Information: for attorney Douglas Allen Smith counsel for Plaintiff Xochitl Hernandez. Changing Firm Name to Skadden, Arps, Slate, Meagher & Flom LLP. Changing e−mail to Devon.Hein@skadden.com. Filed by Plaintiff Xochitl Hernandez et al.. (Smith, Douglas) (Entered: 04/22/2016)
23 NOTICE of Change of Attorney Business or Contact Information: for attorney Douglas Allen Smith counsel for Plaintiff Xochitl Hernandez. Changing Firm Name to Skadden, Arps, Slate, Meagher & Flom LLP. Changing e−mail to Matthew.Delgado@skadden.com. Filed by Plaintiff Xochitl Hernandez et al.. (Smith, Douglas) (Entered: 04/22/2016)
24 NOTICE OF MOTION AND MOTION to Certify Class Pursuant to Federal Rule of Civil Procedure 23, Memorandum of Points and Authorities filed by Plaintiffs Xochitl Hernandez, Cesar Matias. Motion set for hearing on 6/27/2016 at 09:00 AM before Judge Jesus G. Bernal. (Attachments: # 1 Declaration of Michael Tan, # 2 Declaration of Lauren Esterle, # 3 Declaration of Talia Inlender, # 4 Declaration of Michael Kaufman, # 5 Declaration of Matthew Sloan, # 6 Declaration of Xochitl Hernandez, # 7 Declaration of Cesar Amilcar Matias Menjivar, # 8 Proposed Order) (Smith, Douglas) (Entered: 04/22/2016)

04/22/2016 04/22/2016 04/22/2016 04/22/2016 04/22/2016 04/22/2016 04/25/2016
04/25/2016
04/26/2016

25 Notice of Appearance or Withdrawal of Counsel: for attorney Douglas Allen Smith counsel for Plaintiff Cesar Matias. Adding Matthew E. Sloan as counsel of record for Cesar Matias for the reason indicated in the G−123 Notice. Filed by Plaintiff Cesar Matias. (Smith, Douglas) (Entered: 04/22/2016)
26 NOTICE of Change of Attorney Business or Contact Information: for attorney Douglas Allen Smith counsel for Plaintiff Cesar Matias. Changing Firm Name to Skadden, Arps, Slate, Meagher & Flom LLP. Changing e−mail to Douglas.Smith@skadden.com. Filed by Plaintiff Cesar Matias. (Smith, Douglas) (Entered: 04/22/2016)
27 NOTICE of Change of Attorney Business or Contact Information: for attorney Douglas Allen Smith counsel for Plaintiff Cesar Matias. Changing Firm Name to Skadden, Arps, Slate, Meagher & Flom LLP. Changing e−mail to Winston.Hsiao@skadden.com. Filed by Plaintiff Cesar Matias. (Smith, Douglas) (Entered: 04/22/2016)
28 NOTICE of Change of Attorney Business or Contact Information: for attorney Douglas Allen Smith counsel for Plaintiff Cesar Matias. Changing Firm Name to Skadden, Arps, Slate, Meagher & Flom LLP. Changing e−mail to Grayce.Frink@skadden.com. Filed by Plaintiff Cesar Matias. (Smith, Douglas) (Entered: 04/22/2016)
29 NOTICE of Change of Attorney Business or Contact Information: for attorney Douglas Allen Smith counsel for Plaintiff Cesar Matias. Changing Firm Name to Skadden, Arps, Slate, Meagher & Flom LLP. Changing e−mail to Devon.Hein@skadden.com. Filed by Plaintiff Cesar Matias. (Smith, Douglas) (Entered: 04/22/2016)
30 NOTICE of Change of Attorney Business or Contact Information: for attorney Douglas Allen Smith counsel for Plaintiff Cesar Matias. Changing Firm Name to Skadden, Arps, Slate, Meagher & Flom LLP. Changing e−mail to Matthew.Delgado@skadden.com. Filed by Plaintiff Cesar Matias. (Smith, Douglas) (Entered: 04/22/2016)
31 PROOF OF SERVICE filed by Plaintiff Xochitl Hernandez, Cesar Matias, re Notice of Appearance or Withdrawal of Counsel (G−123), 25 , Notice of Change of Attorney Business or Contact Information (G−06), 20 , Notice of Change of Attorney Business or Contact Information (G−06), 27 , Notice of Change of Attorney Business or Contact Information (G−06), 29 , Notice of Change of Attorney Business or Contact Information (G−06), 26 , NOTICE OF MOTION AND MOTION to Certify Class Pursuant to Federal Rule of Civil Procedure 23, Memorandum of Points and Authorities 24 , Notice of Change of Attorney Business or Contact Information (G−06), 28 , Notice of Change of Attorney Business or Contact Information (G−06), 23 , Notice of Change of Attorney Business or Contact Information (G−06), 22 , Notice of Appearance or Withdrawal of Counsel (G−123), 17 , Notice of Change of Attorney Business or Contact Information (G−06), 30 , Notice of Change of Attorney Business or Contact Information (G−06), 21 , Notice of Change of Attorney Business or Contact Information (G−06), 19 served on 4/25/2016. (Smith, Douglas) (Entered: 04/25/2016)
32 NOTICE of Appearance filed by attorney Sherease Rosalyn Pratt on behalf of Defendants James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P Osuna, Sarah Saldana (Attorney Sherease Rosalyn Pratt added to party James Janecka(pty:dft), Attorney Sherease Rosalyn Pratt added to party David Jennings(pty:dft), Attorney Sherease Rosalyn Pratt added to party Jeh Johnson(pty:dft), Attorney Sherease Rosalyn Pratt added to party Loretta Lynch(pty:dft), Attorney Sherease Rosalyn Pratt added to party Juan P Osuna(pty:dft), Attorney Sherease Rosalyn Pratt added to party Sarah Saldana(pty:dft))(Pratt, Sherease) (Entered: 04/25/2016)
33 NOTICE OF ERRATA filed by Plaintiffs Xochitl Hernandez, Cesar Matias. correcting NOTICE OF MOTION AND MOTION to Certify Class Pursuant to Federal Rule of Civil Procedure 23, Memorandum of Points and Authorities 24 correcting DECLARATION OF XOCHITL HERNANDEZ IN SUPPORT OF PLAINTIFFS−PETITIONERS NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 23

04/26/2016 04/27/2016 04/27/2016 04/28/2016
04/28/2016
05/04/2016
05/10/2016 05/10/2016 05/10/2016 05/19/2016 05/19/2016

(ECF No. 24−6) (Smith, Douglas) (Entered: 04/26/2016)
34 DECLARATION of Xochitl Hernandez in support of NOTICE OF MOTION AND MOTION to Certify Class Pursuant to Federal Rule of Civil Procedure 23, Memorandum of Points and Authorities 24 CORRECTED DECLARATION OF XOCHITL HERNANDEZ filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Smith, Douglas) (Entered: 04/26/2016)
35 PROOF OF SERVICE filed by Plaintiff Xochitl Hernandez, Cesar Matias, re Errata, 33 , Declaration (Motion related), 34 CORRECTED DECLARATION OF XOCHITL HERNANDEZ served on 4/27/2016. (Smith, Douglas) (Entered: 04/27/2016)
36 CERTIFICATE OF SERVICE filed by Federal Defendants James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P Osuna, Sarah Saldana, re Notice of Appearance,, 32 on non−federal defendants by mail served on 04/27/2016. (Pratt, Sherease) (Entered: 04/27/2016)
37 NOTICE of Appearance filed by attorney Adrienne Zack on behalf of Defendants James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P Osuna, Sarah Saldana (Attorney Adrienne Zack added to party James Janecka(pty:dft), Attorney Adrienne Zack added to party David Jennings(pty:dft), Attorney Adrienne Zack added to party Jeh Johnson(pty:dft), Attorney Adrienne Zack added to party Loretta Lynch(pty:dft), Attorney Adrienne Zack added to party Juan P Osuna(pty:dft), Attorney Adrienne Zack added to party Sarah Saldana(pty:dft))(Zack, Adrienne) (Entered: 04/28/2016)
38 NOTICE of Appearance filed by attorney Joseph D Hardy, Jr on behalf of Defendants James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P Osuna, Sarah Saldana (Attorney Joseph D Hardy, Jr added to party James Janecka(pty:dft), Attorney Joseph D Hardy, Jr added to party David Jennings(pty:dft), Attorney Joseph D Hardy, Jr added to party Jeh Johnson(pty:dft), Attorney Joseph D Hardy, Jr added to party Loretta Lynch(pty:dft), Attorney Joseph D Hardy, Jr added to party Juan P Osuna(pty:dft), Attorney Joseph D Hardy, Jr added to party Sarah Saldana(pty:dft))(Hardy, Joseph) (Entered: 04/28/2016)
39 Notice of Appearance or Withdrawal of Counsel: for attorney Steven C Miller counsel for Defendants Jon Briggs, Sandra Hutchens. Adding Steven C. Miller as counsel of record for Sandra Hutchens, Orange County Sheriff; Jon Briggs, Captain, Orange County Sheriff's Department for the reason indicated in the G−123 Notice. Filed by Defendants Sandra Hutchens, Jon Briggs. (Attorney Steven C Miller added to party Jon Briggs(pty:dft), Attorney Steven C Miller added to party Sandra Hutchens(pty:dft))(Miller, Steven) (Entered: 05/04/2016)
40 STIPULATION Extending Time to Answer the complaint as to Christina Holland answer now due 6/9/2016; Carlos Roja answer now due 6/9/2016, filed by Defendant Christina Holland; Carlos Roja.(Attorney Laura A Rossini added to party Christina Holland(pty:dft), Attorney Laura A Rossini added to party Carlos Roja(pty:dft))(Rossini, Laura) (Entered: 05/10/2016)
41 CERTIFICATE of Interested Parties filed by Defendant Christina Holland, Carlos Roja, (Rossini, Laura) (Entered: 05/10/2016)
42 Notice of Appearance or Withdrawal of Counsel: for attorney Laura A Rossini counsel for Defendants Christina Holland, Carlos Roja. Adding Laura A. Rossini as counsel of record for Christina Holland, Carlos Rojas for the reason indicated in the G−123 Notice. Filed by Defendant Christina Holland, Carlos Rojas. (Rossini, Laura) (Entered: 05/10/2016)
43 STIPULATION Extending Time to Answer the complaint as to Xochitl Hernandez answer now due 6/20/2016; Cesar Matias answer now due 6/20/2016, re Complaint (Attorney Civil Case Opening), 1 filed by Defendants Jon Briggs; Sandra Hutchens.(Miller, Steven) (Entered: 05/19/2016)
44 CERTIFICATE of Interested Parties filed by Defendants Jon Briggs, Sandra Hutchens, identifying Orange County Sheriff's Department. (Miller, Steven) (Entered: 05/19/2016)

05/19/2016 05/20/2016 06/02/2016 06/02/2016 06/03/2016 06/03/2016 06/03/2016
06/03/2016
06/03/2016 06/06/2016

45 NOTICE OF MOTION AND MOTION for Preliminary Injunction . Motion filed by Plaintiffs Xochitl Hernandez, Cesar Matias. Motion set for hearing on 6/27/2016 at 09:30 AM before Judge Jesus G. Bernal. (Attachments: # 1 Declaration of A. Warren, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Proposed Order) (Smith, Douglas) (Entered: 05/19/2016)
46 Proof of Service of Complaint & Corresponding Documents on all Defendants filed by Plaintiffs Xochitl Hernandez, Cesar Matias (Attachments: # 1 Exhibits 1−12, # 2 Proof of Service)(Kaufman, Michael) (Entered: 05/20/2016)
47 REQUEST TO SUBSTITUTE ATTORNEY Sherease R. Pratt in place of attorney Laura A. Rossini filed by Defendant Christina Holland. (Attorney Sherease Rosalyn Pratt added to party Christina Holland(pty:dft)) (Pratt, Sherease) (Entered: 06/02/2016)
48 REQUEST TO SUBSTITUTE ATTORNEY Sherease R. Pratt in place of attorney Laura A. Rossini filed by Defendant Carlos Roja. (Attorney Sherease Rosalyn Pratt added to party Carlos Roja(pty:dft)) (Pratt, Sherease) (Entered: 06/02/2016)
49 CERTIFICATE OF SERVICE filed by defendants Christina Holland, Carlos Roja, re REQUEST TO SUBSTITUTE ATTORNEY Sherease R. Pratt in place of attorney Laura A. Rossini 47 , REQUEST TO SUBSTITUTE ATTORNEY Sherease R. Pratt in place of attorney Laura A. Rossini 48 served on June 2, 2016. (Pratt, Sherease) (Entered: 06/03/2016)
50 Notice of Appearance or Withdrawal of Counsel: for attorney Sherease Rosalyn Pratt counsel for Defendants Jon Briggs, Sandra Hutchens. Adding Sherease R. Pratt as counsel of record for Jon Briggs and Sandra Hutchens for the reason indicated in the G−123 Notice. Filed by Defendants Jon Briggs and Sandra Hutchens. (Attorney Sherease Rosalyn Pratt added to party Jon Briggs(pty:dft), Attorney Sherease Rosalyn Pratt added to party Sandra Hutchens(pty:dft))(Pratt, Sherease) (Entered: 06/03/2016)
51 Notice of Appearance or Withdrawal of Counsel: for attorney Adrienne Zack counsel for Defendants Jon Briggs, Christina Holland, Sandra Hutchens, Carlos Roja. Adding Adrienne Zack as counsel of record for Christina Holland, Carlos Rojas, Jon Briggs, and Sandra Hutchens for the reason indicated in the G−123 Notice. Filed by Defendants Christina Holland, Carlos Rojas, Jon Briggs, Sandra Hutchens. (Attorney Adrienne Zack added to party Jon Briggs(pty:dft), Attorney Adrienne Zack added to party Christina Holland(pty:dft), Attorney Adrienne Zack added to party Sandra Hutchens(pty:dft), Attorney Adrienne Zack added to party Carlos Roja(pty:dft))(Zack, Adrienne) (Entered: 06/03/2016)
52 Notice of Appearance or Withdrawal of Counsel: for attorney Joseph D Hardy, Jr counsel for Defendants Jon Briggs, Christina Holland, Sandra Hutchens, Carlos Roja. Adding Joseph D. Hardy as counsel of record for Christina Holland, Carlos Roja, Jon Briggs and Sandra Hutchens for the reason indicated in the G−123 Notice. Filed by Defendants Christina Holland, Carlos Roja, Jon Briggs and Sandra Hutchens. (Attorney Joseph D Hardy, Jr added to party Jon Briggs(pty:dft), Attorney Joseph D Hardy, Jr added to party Christina Holland(pty:dft), Attorney Joseph D Hardy, Jr added to party Sandra Hutchens(pty:dft), Attorney Joseph D Hardy, Jr added to party Carlos Roja(pty:dft))(Hardy, Joseph) (Entered: 06/03/2016)
53 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: NOTICE OF MOTION AND MOTION for Preliminary Injunction . Motion 45 . The following error(s) was found: Hearing information is missing, incorrect, or 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. (mrgo) (Entered: 06/03/2016)
54 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Miscellaneous Document 46 . The following error(s) was found: Incorrect event selected. The correct event is: Service of Summons and Complaint Returned Executed as to USA. 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. (mrgo) (Entered: 06/06/2016)

06/06/2016 06/06/2016
06/08/2016 06/09/2016 06/10/2016
06/10/2016 06/13/2016 06/13/2016 06/13/2016 06/13/2016

55 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION for Preliminary Injunction . Motion 45 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13)(Pratt, Sherease) (Entered: 06/06/2016)
56 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION to Certify Class Pursuant to Federal Rule of Civil Procedure 23, Memorandum of Points and Authorities 24 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13)(Pratt, Sherease) (Entered: 06/06/2016)
57 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE REQUESTS TO SUBSTITUTE ATTORNEY 47 , 48 . The following error(s) was found: Proposed Document was not submitted as separate attachment. 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. (ad) (Entered: 06/08/2016)
58 Joint STIPULATION to Exceed Page Limitation as to Memoranda regarding Motion to Dismiss filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Proposed Order)(Zack, Adrienne) (Entered: 06/09/2016)
59 NOTICE OF MOTION AND MOTION to Dismiss Case filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. Motion set for hearing on 7/25/2016 at 09:00 AM before Judge Jesus G. Bernal. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Proposed Order) (Attorney Joseph D Hardy, Jr added to party Mike Kreuger(pty:dft)) (Hardy, Joseph) (Entered: 06/10/2016)
65 ORDER APPROVING STIPULATION TO EXCEED PAGE LIMIT by Judge Jesus G. Bernal, re Stipulation to Exceed Page Limitation, 58 . The parties are granted leave to file memoranda of points and authorities that are no more than 30 pages in length in support of and in opposition to the Motion to Dismiss. (iva) (Entered: 06/14/2016)
60 NOTICE OF ERRATA filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. correcting NOTICE OF MOTION AND MOTION to Dismiss Case 59 (Attachments: # 1 Corrected Notice of Motion and Motion to Dismiss, now including memorandum of points and authorities)(Hardy, Joseph) (Entered: 06/13/2016)
61 NOTICE of Appearance filed by attorney Michael David Hidalgo on behalf of Plaintiffs Xochitl Hernandez, Cesar Matias (Attorney Michael David Hidalgo added to party Xochitl Hernandez(pty:pla), Attorney Michael David Hidalgo added to party Cesar Matias(pty:pla))(Hidalgo, Michael) (Entered: 06/13/2016)
62 REPLY in Support of NOTICE OF MOTION AND MOTION for Preliminary Injunction . Motion 45 Plaintiffs−Petitioners' Reply in Support of Their Motion for Preliminary Injunction filed by Plaintiff Cesar Matias. (Smith, Douglas) (Entered: 06/13/2016)
63 REPLY in Support of NOTICE OF MOTION AND MOTION to Certify Class Pursuant to Federal Rule of Civil Procedure 23, Memorandum of Points and Authorities 24 Plaintiffs−Petitioners' Reply in Support of Their Motion for Class Certification Under Federal Rule of Civil Procedure 23 filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Smith, Douglas) (Entered: 06/13/2016)

06/13/2016 06/20/2016
07/11/2016 07/18/2016 07/28/2016
07/29/2016
08/01/2016 08/10/2016 08/10/2016 08/10/2016

64 REPLY in Support of NOTICE OF MOTION AND MOTION for Preliminary Injunction . Motion 45 Plaintiffs−Petitioners' Reply in Support of Their Motion for Preliminary Injunction filed by Plaintiff Xochitl Hernandez. (Smith, Douglas) (Entered: 06/13/2016)
66 SCHEDULING NOTICE by Judge Jesus G. Bernal. On the Court's own motion, NOTICE OF MOTION AND MOTION to Dismiss Case 59 , NOTICE OF MOTION AND MOTION to Certify Class Pursuant to Federal Rule of Civil Procedure 23, Memorandum of Points and Authorities 24 , and NOTICE OF MOTION AND MOTION for Preliminary Injunction 45 previously scheduled for 6/27/2016 and 7/25/2016 9:00 AM have been rescheduled. Motions are continued to 8/1/2016 at 09:00 AM before Judge Jesus G. Bernal. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (iva) TEXT ONLY ENTRY (Entered: 06/20/2016)
67 PLAINTIFFS−PETITIONERS' OPPOSITION TO MOTION TO DISMISS opposition to re: NOTICE OF MOTION AND MOTION to Dismiss Case 59 and 60 filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Kaufman, Michael) (Entered: 07/11/2016)
68 REPLY in support of NOTICE OF MOTION AND MOTION to Dismiss Case 59 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Exhibit Hernandez Bond Appeal Brief)(Hardy, Joseph) (Entered: 07/18/2016)
69 MINUTE ORDER (1) DIRECTING Supplemental Briefs Regarding Plaintiffs' Motions for Class Certification and Preliminary Injunction and Defendants' Motion to Dismiss; and (2) CONTINUING the August 1, 2016 Hearing to August 15, 2016 (IN CHAMBERS) by Judge Jesus G. Bernal re: NOTICE OF MOTION AND MOTION to Certify Class Pursuant to Federal Rule of Civil Procedure 23, Memorandum of Points and Authorities 24 ; NOTICE OF MOTION AND MOTION for Preliminary Injunction 45 ; NOTICE OF MOTION AND MOTION to Dismiss Case 59 . Both parties shall submit their supplemental briefs by Wednesday, August 3, 2016 at 5:00 p.m. (See document for specifics.) (iva) (Entered: 07/28/2016)
70 Joint STIPULATION to Continue Supplemental Briefing Deadline and Motion Hearing Date, from August 3, 2016, at 5:00p.m., and August 15, 2016, at 9:00a.m., respectively, to August 10, 2016, at 5:00p.m., and August 22, 2016, at 9:00a.m. Re: Minutes of In Chambers Order/Directive − no proceeding held,,, Set/Reset Deadlines/Hearings,, 69 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Proposed Order)(Attorney Sherease Rosalyn Pratt added to party Mike Kreuger(pty:dft))(Pratt, Sherease) (Entered: 07/29/2016)
71 ORDER by Judge Jesus G. Bernal, re Stipulation to Continue, 70 . IT IS HEREBY ORDERED that the Motion Hearing previously scheduled for August 15, 2016, at 9:00 a.m., is continued to August 22, 2016, at 9:00 a.m., and the supplemental briefing deadline is extended by one week, from August 3, 2016, to August 10, 2016, at 5:00 p.m. (iva) (Entered: 08/02/2016)
72 SUPPLEMENT to NOTICE OF MOTION AND MOTION to Certify Class Pursuant to Federal Rule of Civil Procedure 23, Memorandum of Points and Authorities 24 , NOTICE OF MOTION AND MOTION for Preliminary Injunction . Motion 45 , NOTICE OF MOTION AND MOTION to Dismiss Case 59 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Pratt, Sherease) (Entered: 08/10/2016)
73 SUPPLEMENT to NOTICE OF MOTION AND MOTION to Certify Class Pursuant to Federal Rule of Civil Procedure 23, Memorandum of Points and Authorities 24 filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Kaufman, Michael) (Entered: 08/10/2016)
74 DECLARATION of Michael Kaufman in Support of NOTICE OF MOTION AND MOTION to Certify Class Pursuant to Federal Rule of Civil Procedure 23,

08/25/2016 09/02/2016
09/02/2016 09/10/2016 09/12/2016 09/12/2016 09/16/2016 10/11/2016
10/18/2016 11/10/2016
11/10/2016

Memorandum of Points and Authorities 24 filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Exhibits A−B)(Kaufman, Michael) (Entered: 08/10/2016)
75 TRANSCRIPT ORDER as to Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana DCN number: n/a for Court Reporter. Transcript preparation will not begin until payment has been satisfied with the court reporter. (Zack, Adrienne) (Entered: 08/25/2016)
76 TRANSCRIPT for proceedings held on 8−22−2016; 9:00am. Court Reporter: Adele C. Frazier, adelefraziercsr@gmail.com. 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 9/23/2016. Redacted Transcript Deadline set for 10/3/2016. Release of Transcript Restriction set for 12/1/2016. (afr) (Entered: 09/02/2016)
77 NOTICE OF FILING TRANSCRIPT filed for proceedings 8−22−2016; 9:00am re Transcript 76 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (afr) TEXT ONLY ENTRY (Entered: 09/02/2016)
78 STATUS REPORT informing the Court of Plaintiff Xochitl Hernandez's release on bond following her Rodriguez bond hearing filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Pratt, Sherease) (Entered: 09/10/2016)
79 RESPONSE filed by Plaintiffs Xochitl Hernandez, Cesar Matiasto Status Report, 78 (Kaufman, Michael) (Entered: 09/12/2016)
80 DECLARATION of Michael Kaufman re Response 79 filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Exhibits A−B)(Kaufman, Michael) (Entered: 09/12/2016)
81 STATUS REPORT attaching Plaintiff Xochitl Hernandez's August 23, 2016 Rodriguez bond hearing transcript filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Redacted Document Transcript of Plaintiff Hernandez's August 23, 2016 Rodriguez Bond Hearing)(Pratt, Sherease) (Entered: 09/16/2016)
82 STATUS REPORT Exhibit A, Decision of the Board, dated September 30, 2016, sustaining Plaintiff Hernandez's administrative appeal and remanding the record to Immigration Judge David Burke to reconsider her bond amount, filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Exhibit A, Decision of the Board, dated September 30, 2016)(Pratt, Sherease) (Entered: 10/11/2016)
83 RESPONSE filed by Plaintiffs Xochitl Hernandez, Cesar Matiasto Status Report, 81 , Status Report,, 82 (Kaufman, Michael) (Entered: 10/18/2016)
84 MINUTES (IN CHAMBERS) by Judge Jesus G. Bernal (1) DENYING Defendants Motion to Dismiss (Dkt. No. 59); (2) GRANTING Plaintiffs Motion for Class Certification (Dkt. No. 24); and (3) GRANTING Plaintiffs Motion for Preliminary Injunction (Dkt. No. 45): (see document image for further details). For the foregoing reasons, the Court (1) DENIES Defendants Motion to Dismiss; (2) GRANTS Plaintiffs Motion for Class Certification; and (3) GRANTS Plaintiffs Motion for Preliminary Injunction. As set forth further in the Order concurrently filed herewith, the Court GRANTS Plaintiffs request for preliminary injunctive relief and ORDERS the parties to meet and confer regarding compliance with this Order. IT IS SO ORDERED. (ad) (Entered: 11/10/2016)
85 ORDER by Judge Jesus G. Bernal GRANTING Plaintiffs−Petitioners' MOTION for Class−Wide Preliminary Injunction 45 : (see document image for further details). (ad) (Entered: 11/10/2016)

12/09/2016 12/12/2016 12/12/2016 12/13/2016 12/15/2016 12/16/2016 12/19/2016
12/28/2016
01/04/2017 01/05/2017 02/17/2017

86 Joint STIPULATION to AMEND Order 85 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Proposed Order)(Zack, Adrienne) (Entered: 12/09/2016)
87 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. Appeal of Order 85 . (Appeal Fee − Not Required for US Goverment.) (Attachments: # 1 ECF No. 85, Order)(Pratt, Sherease) (Entered: 12/12/2016)
88 EX PARTE APPLICATION to Stay pending appeal and the resolution of the appeal Order 85 , EX PARTE APPLICATION to Stay Case pending appeal and the resolution of the appeal filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Memorandum, # 2 Declaration of Sherease Pratt, # 3 Proposed Order) (Pratt, Sherease) (Entered: 12/12/2016)
89 NOTIFICATION from Ninth Circuit Court of Appeals of case number assigned and briefing schedule. Appeal Docket No. 16−56829 assigned to Notice of Appeal to 9th Circuit Court of Appeals, 87 as to defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (mat) (Entered: 12/13/2016)
90 OPPOSITION re: EX PARTE APPLICATION to Stay pending appeal and the resolution of the appeal Order 85 EX PARTE APPLICATION to Stay Case pending appeal and the resolution of the appeal 88 filed by Plaintiff Cesar Matias. (Smith, Douglas) (Entered: 12/15/2016)
91 REPLY support EX PARTE APPLICATION to Stay pending appeal and the resolution of the appeal Order 85 EX PARTE APPLICATION to Stay Case pending appeal and the resolution of the appeal 88 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Pratt, Sherease) (Entered: 12/16/2016)
92 ORDER APPROVING JOINT STIPULATION TO EXTEND TIMETABLE TO IMPLEMENT THE COURT'S NOVEMBER 10, 2016 ORDER by Judge Jesus G. Bernal, re Stipulation to Amend/Correct, 86 . IT IS HEREBY ORDERED that the parties request to extend the timetable for implementing Part I, paragraphs 2(a), 2(b), 2(c), 3(a), 3(b), and 5, and Part II of the Court's November 10, 2016 Order granting Plaintiffs−Petitioners' motion for a class−wide preliminary injunction is GRANTED. (See document for further details.) (iva) (Entered: 12/20/2016)
93 ORDER by Judge Jesus G. Bernal. The Ex Parte Application to Stay All Proceedings Pending Appeal (Doc. No. 88) is hereby DENIED. Defendants shall comply with the Court's November 10, 2016 Order Granting Plaintiffs−Petitioners' Motion for Class−Wide Preliminary Injunction, subject to the modifications described in the Parties' December 19, 2016 Stipulation (Doc. No. 92). IT IS SO ORDERED. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (mga) TEXT ONLY ENTRY (Entered: 12/28/2016)
94 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 87 filed by Mike Kreuger, Jon Briggs, Jeh Johnson, Carlos Roja, David Jennings, James Janecka, Christina Holland, Sandra Hutchens, Loretta Lynch, Juan P Osuna, Sarah Saldana. CCA # 16−56829. Appellant's motion to stay the district court's November 10, 2016 order pending appeal is granted.(mat) (Entered: 01/05/2017)
95 Notice of Appearance or Withdrawal of Counsel: for attorney Grayce S Patricia Frink counsel for Plaintiffs Xochitl Hernandez, Cesar Matias. Grayce S. Patricia Frink 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 for Plaintiffs. (Frink, Grayce) (Entered: 01/05/2017)
96 Notice of Appearance or Withdrawal of Counsel: for attorney John Christopher Korevec counsel for Plaintiffs Xochitl Hernandez, Cesar Matias. Adding John C. Korevec as counsel of record for Plaintiffs for the reason indicated in the G−123

02/17/2017 02/24/2017 03/06/2017 03/20/2017 03/23/2017
03/23/2017 04/18/2017
04/18/2017 05/05/2017 05/11/2017 05/16/2017

Notice. Filed by Plaintiff Xochitl Hernandez and Cesar Matias. (Attorney John Christopher Korevec added to party Xochitl Hernandez(pty:pla), Attorney John Christopher Korevec added to party Cesar Matias(pty:pla))(Korevec, John) (Entered: 02/17/2017)
97 NOTICE OF MOTION AND MOTION for Hearing Re Status Conference Regarding Scheduling and Discovery filed by Plaintiff Xochitl Hernandez, Cesar Matias. Motion set for hearing on 3/20/2017 at 09:00 AM before Judge Jesus G. Bernal. (Attachments: # 1 Declaration of Douglas A. Smith, # 2 Proposed Order) (Smith, Douglas) (Entered: 02/17/2017)
98 OPPOSITION to NOTICE OF MOTION AND MOTION for Hearing Re Status Conference Regarding Scheduling and Discovery 97 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Hardy, Joseph) (Entered: 02/24/2017)
99 REPLY In Support of NOTICE OF MOTION AND MOTION for Hearing Re Status Conference Regarding Scheduling and Discovery 97 filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Smith, Douglas) (Entered: 03/06/2017)
100 MINUTES OF Hearing on Plaintiffs Motion for a Status Conference Re: Scheduling and Discovery 97 held before Judge Jesus G. Bernal. The Court confers with counsel and hears oral argument. The Court takes the matter under−submission. Court Reporter: Adele C. Frazier. (mga) (Entered: 03/23/2017)
101 MINUTES (IN CHAMBERS) by Judge Jesus G. Bernal: The Court DENIES as moot Plaintiffs' motion for a status conference (Dkt. No. 97.) As stated on the record at the hearing on March 20, 2017, the Court finds that the Ninth Circuit's January 4, 2017 order granting Defendant's motion for an emergency stay also granted an administrative stay of all district court proceedings in this case. Should the Ninth Circuit indicate otherwise going forward, the Court may reconsider the issue at that time. (mga) (Entered: 03/23/2017)
102 TRANSCRIPT ORDER as to Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana DCN number: n/a for Court Reporter. Transcript preparation will not begin until payment has been satisfied with the court reporter. (Zack, Adrienne) (Entered: 03/23/2017)
103 TRANSCRIPT for proceedings held on 3−20−2017; 9:00am. Court Reporter: Adele C. Frazier, adelefraziercsr@gmail.com. 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 5/9/2017. Redacted Transcript Deadline set for 5/19/2017. Release of Transcript Restriction set for 7/17/2017. (afr) (Entered: 04/18/2017)
104 NOTICE OF FILING TRANSCRIPT filed for proceedings 3−20−2017; 9:00am re Transcript 103 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (afr) TEXT ONLY ENTRY (Entered: 04/18/2017)
105 NOTICE OF NINTH CIRCUIT'S ORDER OF CLARIFICATION OF ORDER TO STAY PRELIMINARY INJUNCTION filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Declaration of Douglas A. Smith)(Smith, Douglas) (Entered: 05/05/2017)
106 RESPONSE filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldanato Notice (Other) 105 (Attachments: # 1 Exhibit A − Defendants−Appellants' Motion for Reconsideration)(Zack, Adrienne) (Entered: 05/11/2017)
107 ANSWER to Complaint (Attorney Civil Case Opening), 1 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah

05/16/2017 06/09/2017 06/30/2017
07/24/2017 08/07/2017 08/07/2017
08/07/2017 08/28/2017
09/11/2017 09/18/2017 10/02/2017
10/02/2017

Saldana.(Zack, Adrienne) (Entered: 05/16/2017)
108 NOTICE of Decision: NINTH CIRCUIT'S ORDER DENYING DEFENDANTS' MOTION FOR RECONSIDERATION filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Smith, Douglas) (Entered: 05/16/2017)
109 ORDER SETTING SCHEDULING CONFERENCE: Scheduling Conference set for 8/7/2017 at 11:00 AM before Judge Jesus G. Bernal. (gga) (Entered: 06/09/2017)
110 ORDER ACCEPTING FINAL FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Judge Jesus G. Bernal: The Court has engaged in de novo review of those portions of the Report to which Petitioner has objected. The Court accepts the findings and recommendation of the Magistrate Judge. IT IS THEREFORE ORDERED that (1) Respondents Motion to dismiss is DENIED; (2) Respondents Motion to consolidate is GRANTED; and (3) the following cases shall be consolidated for all purposes: Marvin Rodriguez Aroche v. Jason Park, et al., No. SACV 17−0367−JGB (KK) (C.D. Cal.) and Hernandez v. Lynch, et al., No. EDCV 16−0620−JGB (KK) (C.D. Cal.). All future pleadings and orders regarding these cases shall now be filed in Hernandez v. Lynch, et al., No. EDCV 16−0620−JGB (KK) (C.D. Cal.). (ad) (Entered: 06/30/2017)
111 JOINT REPORT Rule 26(f) Discovery Plan ; estimated length of trial 7 days, filed by Plaintiffs Xochitl Hernandez, Cesar Matias.. (Smith, Douglas) (Entered: 07/24/2017)
112 MINUTES OF Scheduling Conference held before Judge Jesus G. Bernal. Scheduling Conference was held. A trial schedule was set. See separate trial scheduling order for more details. (see document for details). Court Reporter: Adele C. Frazier. (dro) (Entered: 08/07/2017)
113 CIVIL TRIAL SCHEDULING ORDER by Judge Jesus G. Bernal. Amended Pleadings due by 12/11/2017. Discovery cut−off (Last day to hear discovery motions) 4/27/2018. Dispositive Motions cutoff (last day to hear) 7/2/2018. Last date to conduct settlement conference is 5/25/2018. Final Pretrial Conference set for 8/13/2018 at 11:00 AM before Judge Jesus G. Bernal. Bench Trial set for 8/28/2018 at 09:00 AM before Judge Jesus G. Bernal. (gga) (Entered: 08/07/2017)
114 ORDER/REFERRAL to ADR Procedure N. o 1 by Judge Jesus G. Bernal. Case ordered to Magistrate Judge Kenly Kiya Kato for Settlement Conference. ADR Proceeding to be held no later than May 25, 2018. (iva) (Entered: 08/08/2017)
115 NOTICE OF MOTION AND MOTION to Stay Case pending Resolution of Ninth Circuit Preliminary Injunction Appeal (stay discovery) filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. Motion set for hearing on 10/2/2017 at 09:00 AM before Judge Jesus G. Bernal. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Proposed Order) (Zack, Adrienne) (Entered: 08/28/2017)
116 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION to Stay Case pending Resolution of Ninth Circuit Preliminary Injunction Appeal (stay discovery) 115 filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Declaration, # 2 Exhibits A−C)(Kang, Stephen) (Entered: 09/11/2017)
117 REPLY in support of NOTICE OF MOTION AND MOTION to Stay Case pending Resolution of Ninth Circuit Preliminary Injunction Appeal (stay discovery) 115 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Zack, Adrienne) (Entered: 09/18/2017)
118 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 87 filed by Mike Kreuger, Jon Briggs, Jeh Johnson, Carlos Roja, David Jennings, James Janecka, Christina Holland, Sandra Hutchens, Loretta Lynch, Juan P Osuna, Sarah Saldana. CCA # 16−56829. The stay of the district court's November 10, 2016 order pending appeal is LIFTED. Judge Fernandez dissents from this order. (mat) (Entered: 10/03/2017)
119 OPINION from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 87 filed by Mike Kreuger, Jon Briggs, Jeh Johnson, Carlos Roja, David Jennings, James Janecka, Christina Holland, Sandra Hutchens, Loretta

10/02/2017 11/08/2017
11/09/2017
11/10/2017 11/13/2017 11/16/2017 11/21/2017 11/21/2017 11/22/2017

Lynch, Juan P Osuna, Sarah Saldana. CCA # 16−56829. AFFIRMED. (bm) (Entered: 10/03/2017)
120 MINUTES OF Hearing on Defendants Motion to Stay Discovery Pending Resolution of Ninth Circuit Preliminary Injunction Appeal 115 held before Judge Jesus G. Bernal. The case is called and counsel state their appearances. Counsel for defendants inform the Court that the Ninth Circuit has issued its ruling on the preliminary injunction appeal and therefore move to withdraw the motion to stay. The request to withdraw the motion is granted. Court Reporter: Adele C. Frazier. (iva) (Entered: 10/04/2017)
121 NOTICE of Appearance filed by attorney Brian Christopher Ward on behalf of Defendants James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P Osuna, Sarah Saldana (Attorney Brian Christopher Ward added to party James Janecka(pty:dft), Attorney Brian Christopher Ward added to party David Jennings(pty:dft), Attorney Brian Christopher Ward added to party Jeh Johnson(pty:dft), Attorney Brian Christopher Ward added to party Loretta Lynch(pty:dft), Attorney Brian Christopher Ward added to party Juan P Osuna(pty:dft), Attorney Brian Christopher Ward added to party Sarah Saldana(pty:dft))(Ward, Brian) (Entered: 11/08/2017)
122 NOTICE OF MOTION AND MOTION to Compel (1) CERTAIN RESPONSES TO PLAINTIFFS FIRST SETS OF REQUESTS FOR PRODUCTION AND INTERROGATORIES; (2) JOINT STIPULATION (WITH NO RESPONSE FROM DEFENDANTS PROVIDED); (3) DECLARATION OF DOUGLAS A. SMITH AND EXHIBITS 1−9; (4) PROPOSED ORDER filed by Plaintiffs−Petitioners Xochitl Hernandez. Motion set for hearing on 12/7/2017 at 10:00 AM before Magistrate Judge Kenly Kiya Kato. (Attachments: # 1 Joint Stipulation (No Response From Defendants), # 2 Declaration of Douglas A. Smith and Exhibits 1−9, # 3 Proposed Order)(Smith, Douglas) (Entered: 11/09/2017)
123 Notice of Appearance or Withdrawal of Counsel: for attorney Devon Lashae Hein counsel for Plaintiffs Xochitl Hernandez, Cesar Matias. Devon L. Hein 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 Plaintiffs. (Hein, Devon) (Entered: 11/10/2017)
124 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 87 filed by Mike Kreuger, Jon Briggs, Jeh Johnson, Carlos Roja, David Jennings, James Janecka, Christina Holland, Sandra Hutchens, Loretta Lynch, Juan P Osuna, Sarah Saldana. CCA # 16−56829. The government's Motion to Enlarge Time for Filing Petition for Panel Rehearing or Rehearing En Banc is GRANTED. Any such petition shall be filed on or before January 2, 2018. No further extensions of time will be granted. (car) (Entered: 11/14/2017)
125 OPPOSITION to MOTION to Compel (1) CERTAIN RESPONSES TO PLAINTIFFS FIRST SETS OF REQUESTS FOR PRODUCTION AND INTERROGATORIES; (2) JOINT STIPULATION (WITH NO RESPONSE FROM DEFENDANTS PROVIDED); (3) DECLARATION OF DOUGLAS A. SMITH AND EXHIBITS 1−9; (4) PROPOSED ORDE 122 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Pratt, Sherease) (Entered: 11/16/2017)
126 Joint STIPULATION for Order to Extend Timetable to Implement the Court's November 10, 2016 Order filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Kaufman, Michael) (Entered: 11/21/2017)
127 ORDER Approving Joint Stipulation to Extend Timetable to Implement the Court's November 10, 2016 Order 126 by Judge Jesus G. Bernal: For good cause having been shown, IT IS HEREBY ORDERED that the parties request to extend the timetable for implementing Part I, paragraphs 2(a), 2(b), 2(c), 3(a), 3(b), and 5, and Part II of the Courts November 10, 2016 Order granting Plaintiffs−Petitioners motion for a class−wide preliminary injunction is GRANTED. See document for further information. (lwag) (Entered: 11/22/2017)
128 REPLY In Support of MOTION to Compel (1) CERTAIN RESPONSES TO PLAINTIFFS FIRST SETS OF REQUESTS FOR PRODUCTION AND INTERROGATORIES; (2) JOINT STIPULATION (WITH NO RESPONSE FROM

12/01/2017 12/08/2017 12/08/2017 12/13/2017
12/13/2017
12/13/2017 12/14/2017

DEFENDANTS PROVIDED); (3) DECLARATION OF DOUGLAS A. SMITH AND EXHIBITS 1−9; (4) PROPOSED ORDE 122 filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Declaration of Douglas A. Smith)(Smith, Douglas) (Entered: 11/22/2017)
129 MINUTES (IN CHAMBERS) by Magistrate Judge Kenly Kiya Kato: granting 122 Motion to Compel and Vacating the December 7, 2017 Hearing. (dts) (Entered: 12/01/2017)
130 Joint STIPULATION to Continue Pretrial and Trial Dates, and Set Schedule on the Filing of and Response to a Proposed First Amended Complaint from 12/11/2017, 4/27/2018, 7/2/2018, 5/25/2018, 8/13/2018, and 8/28/2018, respectively to 2/12/2018, 12/20/2018, 3/4/2019, 1/25/2019, 4/15/2019, and 4/30/2019, respectively Re: Pretrial−Trial Scheduling Order − form only, 113 filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Proposed Order)(Smith, Douglas) (Entered: 12/08/2017)
131 DECLARATION of Douglas A. Smith re Order on Motion to Compel 129 Granting Plaintiffs' Expenses, Including Attorneys' Fees, In Moving to Compel filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Smith, Douglas) (Entered: 12/08/2017)
132 ORDER ON JOINT STIPULATION TO CONTINUE PRETRIAL AND TRIAL DATES, AND TO SET THE SCHEDULE ON THE FILING OF AND RESPONSE TO A PROPOSED FIRST AMENDED COMPLAINT by Judge Jesus G. Bernal, re Stipulation to Continue, 130 . (SEE ORDER FOR FURTHER DETAILS) Good cause appearing, the Court amends the Civil Trial Scheduling Order as follows: Amended Pleadings due by 2/12/2018. Discovery cut−off 12/20/2018. Motions due by 3/4/2019. Last date to conduct settlement conference is 1/25/2019. Bench Trial continued to 4/30/2019 at 09:00 AM before Judge Jesus G. Bernal. Final Pretrial Conference continued to 4/15/2019 at 11:00 AM before Judge Jesus G. Bernal. In addition, Plaintiffs shall file a proposed First Complaint, whether by motion or stipulation, by February 12, 2018, and Defendants shall file a responsive pleading to the FAC within 30 days of the Court granting the filing of the FAC. IT IS SO ORDERED. (iva) (Entered: 12/13/2017)
133 Notice of Appearance or Withdrawal of Counsel: for attorney Gisela A Westwater counsel for Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. Adding Gisela A. Westwater as counsel of record for Defendants for the reason indicated in the G−123 Notice. Filed by Defendants Sessions, et al.. (Attorney Gisela A Westwater added to party Jon Briggs(pty:dft), Attorney Gisela A Westwater added to party Christina Holland(pty:dft), Attorney Gisela A Westwater added to party Sandra Hutchens(pty:dft), Attorney Gisela A Westwater added to party James Janecka(pty:dft), Attorney Gisela A Westwater added to party David Jennings(pty:dft), Attorney Gisela A Westwater added to party Jeh Johnson(pty:dft), Attorney Gisela A Westwater added to party Mike Kreuger(pty:dft), Attorney Gisela A Westwater added to party Loretta Lynch(pty:dft), Attorney Gisela A Westwater added to party Juan P Osuna(pty:dft), Attorney Gisela A Westwater added to party Carlos Roja(pty:dft), Attorney Gisela A Westwater added to party Sarah Saldana(pty:dft))(Westwater, Gisela) (Entered: 12/13/2017)
134 OBJECTIONS to Declaration 131 of Counsel for Plaintiffs regarding fees filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Westwater, Gisela) (Entered: 12/13/2017)
135 Notice of Appearance or Withdrawal of Counsel: for attorney Steven A Platt counsel for Defendants James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P Osuna, Sarah Saldana. Adding Steven A. Platt as counsel of record for Defendants Lynch, Osuna, Johnson, Saldana, Jennings, Janecka for the reason indicated in the G−123 Notice. Filed by Defendants Defendants Lynch, Osuna, Johnson, Saldana, Jennings, Janecka. (Attorney Steven A Platt added to party James Janecka(pty:dft), Attorney Steven A Platt added to party David Jennings(pty:dft), Attorney Steven A Platt added to party Jeh Johnson(pty:dft), Attorney Steven A Platt added to party Loretta Lynch(pty:dft), Attorney Steven A Platt added to party Juan P Osuna(pty:dft), Attorney Steven A Platt added to party Sarah Saldana(pty:dft))(Platt, Steven) (Entered:

12/15/2017
12/15/2017 12/15/2017
12/17/2017
12/18/2017 12/18/2017 12/18/2017 12/19/2017 12/20/2017 12/21/2017 12/21/2017 12/21/2017

12/14/2017)
136 NOTICE of Appearance filed by attorney Yamileth G Davila on behalf of Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana (Attorney Yamileth G Davila added to party Jon Briggs(pty:dft), Attorney Yamileth G Davila added to party Christina Holland(pty:dft), Attorney Yamileth G Davila added to party Sandra Hutchens(pty:dft), Attorney Yamileth G Davila added to party James Janecka(pty:dft), Attorney Yamileth G Davila added to party David Jennings(pty:dft), Attorney Yamileth G Davila added to party Jeh Johnson(pty:dft), Attorney Yamileth G Davila added to party Mike Kreuger(pty:dft), Attorney Yamileth G Davila added to party Loretta Lynch(pty:dft), Attorney Yamileth G Davila added to party Juan P Osuna(pty:dft), Attorney Yamileth G Davila added to party Carlos Roja(pty:dft), Attorney Yamileth G Davila added to party Sarah Saldana(pty:dft))(Davila, Yamileth) (Entered: 12/15/2017)
137 Joint STIPULATION for Order to Extend Defendants' Deadline to Comply with the Court's Order Regarding Defendants' Discovery Obligations [ECF No. 129] filed by Defendants James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P Osuna, Sarah Saldana. (Attachments: # 1 Proposed Order)(Ward, Brian) (Entered: 12/15/2017)
138 EX PARTE APPLICATION for Relief from Prior Order Pursuant to Rule 60(b) re Order on Motion to Compel 129 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Memorandum, # 2 Declaration, # 3 Proposed Order, # 4 Certificate of Service) (Davila, Yamileth) (Entered: 12/15/2017)
139 MEMORANDUM in Opposition to EX PARTE APPLICATION for Relief from Prior Order Pursuant to Rule 60(b) re Order on Motion to Compel 129 138 PLAINTIFFS OPPOSITION TO DEFENDANTS EX PARTE APPLICATION TO AMEND DEADLINE TO COMPLY WITH COURT ORDER GRANTING MOTION TO COMPEL filed by Plaintiff Xochitl Hernandez. (Smith, Douglas) (Entered: 12/17/2017)
140 ORDER APPROVING JOINT STIPULATION by Magistrate Judge Kenly Kiya Kato: re Stipulation for Order, 137 . (dts) (Entered: 12/18/2017)
141 MINUTES (IN CHAMBERS) by Magistrate Judge Kenly Kiya Kato: denying 138 EX PARTE APPLICATION to Amend Deadline to Comply with Discovery Order. (dts) (Entered: 12/18/2017)
142 STIPULATION for Discovery as to [Proposed] Stipulated Omnibus Discovery Order filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 [Proposed] Stipulated Omnibus Discovery Order)(Smith, Douglas) (Entered: 12/18/2017)
143 MINUTES (IN CHAMBERS) RE: STIPULATED PROTECTIVE ORDER by Magistrate Judge Kenly Kiya Kato re Stipulation 142 The parties are advised that the Court declines to issue the proposed protective order to which they have stipulated (SEE ORDER FOR DETAILS). (dts) (Entered: 12/19/2017)
144 Joint STIPULATION for Order to Extend Defendants' Deadline to Comply with the Court's Order Regarding Defendants' Discovery Obligations [ECF No. 129] filed by Defendants James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P Osuna, Sarah Saldana. (Attachments: # 1 Proposed Order)(Ward, Brian) (Entered: 12/20/2017)
145 STIPULATION for Protective Order filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 [Proposed] Stipulated Omnibus Discovery Order)(Smith, Douglas) (Entered: 12/21/2017)
146 ORDER APPROVING STIPULATION by Magistrate Judge Kenly Kiya Kato: re Stipulation for Order, 144 . (dts) (Entered: 12/21/2017)
147 Joint STIPULATION for Order TO AMEND THE COURT'S ORDER REGARDING DEFENDANTS' DISCOVERY OBLIGATIONS filed by Plaintiffs−Petitioners Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Proposed Order)(Kaufman,

12/22/2017 12/22/2017 01/03/2018 01/10/2018
01/22/2018 01/23/2018
01/23/2018 01/26/2018 01/26/2018
01/29/2018 01/29/2018 02/07/2018
02/15/2018

Michael) (Entered: 12/21/2017)
148 ORDER APPROVING STIPULATED PROTECTIVE ORDER by Magistrate Judge Kenly Kiya Kato re Stipulation for Protective Order 145 NOTE CHANGES MADE BY THE COURT. (dts) (Entered: 12/22/2017)
149 ORDER APPROVING STIPULATION TO AMEND THE COURT'S ORDER REGARDING DEFENDANTS' DISCOVERY OBLIGATIONS by Magistrate Judge Kenly Kiya Kato: re Stipulation for Order 147 . (dts) (Entered: 12/22/2017)
150 MINUTES (IN CHAMBERS) ORDER Awarding Plaintiffs' Reasonable Attorneys Fees and Costs Re: Plaintiffs' Motion to Compel [Dkt. 122] by Magistrate Judge Kenly Kiya Kato, (dts) (Entered: 01/03/2018)
151 MANDATE of Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 87 CCA # 16−56829. The judgment of the 9th Circuit Court, entered October 02, 2017, takes effect this date. This constitutes the formal mandate of the 9th CCA issued pursuant to Rule41(a) of the Federal Rules of Appellate Procedure. [See USCA Memorandum 119 AFFIRMED.] (mat) (Entered: 01/11/2018)
152 NOTICE OF MOTION AND MOTION to Stay Case pending appropriation of funds for the Department of Justice and other Federal Defendants filed by Defendants James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P Osuna, Sarah Saldana. (Attachments: # 1 Proposed Order) (Ward, Brian) (Entered: 01/22/2018)
153 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE MOTION to Stay Case pending appropriation of funds for the Department of Justice and other Federal Defendants 152 . The following error(s) was/were found: Hearing information is missing, incorrect, or not timely. 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. (ad) (Entered: 01/23/2018)
154 Notice of Withdrawal of Motion to Stay Case, 152 filed by Defendants James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P Osuna, Sarah Saldana. (Ward, Brian) (Entered: 01/23/2018)
155 Joint STIPULATION to Continue Deadline to Begin Production from January 30, 2018 to February 2, 2018 filed by Defendants James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P Osuna, Sarah Saldana. (Attachments: # 1 Proposed Order)(Ward, Brian) (Entered: 01/26/2018)
156 Joint STIPULATION to Continue Defendants' Deadline to Comply with the Court's January 3, 2018 Order from February 2, 2018, to March 5, 2018, Re: Order 150 filed by Defendants James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P Osuna, Sarah Saldana. (Attachments: # 1 Proposed Order)(Ward, Brian) (Entered: 01/26/2018)
157 ORDER APPROVING STIPULATION by Magistrate Judge Kenly Kiya Kato: re Stipulation to Continue, 155 . (dts) (Entered: 01/29/2018)
158 ORDER APPROVING STIPULATION by Magistrate Judge Kenly Kiya Kato: re Stipulation to Continue, 156 . (dts) (Entered: 01/29/2018)
159 Notice of Appearance or Withdrawal of Counsel: for attorney Olivia Powar counsel for Plaintiffs Xochitl Hernandez, Cesar Matias. Adding Olivia M. Powar as counsel of record for Plaintiffs for the reason indicated in the G−123 Notice. Filed by Plaintiff Plaintiffs. (Attorney Olivia Powar added to party Xochitl Hernandez(pty:pla), Attorney Olivia Powar added to party Cesar Matias(pty:pla))(Powar, Olivia) (Entered: 02/07/2018)
160 Notice of Appearance or Withdrawal of Counsel: for attorney Ashley Lynn Phillips counsel for Plaintiffs Xochitl Hernandez, Cesar Matias. Adding Ashley L. Phillips as counsel of record for Plaintiffs for the reason indicated in the G−123 Notice. Filed by Plaintiffs Plaintiffs. (Attorney Ashley Lynn Phillips added to party Xochitl Hernandez(pty:pla), Attorney Ashley Lynn Phillips added to party Cesar Matias(pty:pla))(Phillips, Ashley) (Entered: 02/15/2018)

02/16/2018 02/16/2018 02/23/2018
02/23/2018 02/26/2018 02/26/2018 03/02/2018 03/09/2018 03/09/2018

161 Notice of Appearance or Withdrawal of Counsel: for attorney Sherease Rosalyn Pratt counsel for Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. Sherease Rosalyn Pratt is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G−123 Notice. Filed by Defendants Sherease Pratt. (Pratt, Sherease) (Entered: 02/16/2018)
162 SEALED DOCUMENT Sealed Status Report re Order 85 , Order,, 127 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Exhibit LAD Rodriguez, # 2 Exhibit LAD Non−Rodriguez, # 3 Exhibit ADL Rodriguez, # 4 Exhibit ADL Non−Rodriguez)(Hardy, Joseph) (Entered: 02/16/2018)
163 Notice of Appearance or Withdrawal of Counsel: for attorney Lindsay M Vick counsel for Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. Adding Lindsay M. Vick as counsel of record for Jefferson Sessions, et al. for the reason indicated in the G−123 Notice. Filed by defendant Lindsay M. Vick. (Attorney Lindsay M Vick added to party Jon Briggs(pty:dft), Attorney Lindsay M Vick added to party Christina Holland(pty:dft), Attorney Lindsay M Vick added to party Sandra Hutchens(pty:dft), Attorney Lindsay M Vick added to party James Janecka(pty:dft), Attorney Lindsay M Vick added to party David Jennings(pty:dft), Attorney Lindsay M Vick added to party Jeh Johnson(pty:dft), Attorney Lindsay M Vick added to party Mike Kreuger(pty:dft), Attorney Lindsay M Vick added to party Loretta Lynch(pty:dft), Attorney Lindsay M Vick added to party Juan P Osuna(pty:dft), Attorney Lindsay M Vick added to party Carlos Roja(pty:dft), Attorney Lindsay M Vick added to party Sarah Saldana(pty:dft))(Vick, Lindsay) (Entered: 02/23/2018)
164 Second EX PARTE APPLICATION for Order for Modify Amended Order Setting Discovery Deadlines filed by defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Memorandum In Support of Ex Parte Application to Modify Amended Order, # 2 Declaration of Lindsay M. Vick, # 3 Exhibit A − J, # 4 Proposed Order)(Vick, Lindsay) (Entered: 02/23/2018)
165 Amendment to Second EX PARTE APPLICATION for Order for Modify Amended Order Setting Discovery Deadlines 164 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger. (Attachments: # 1 Memorandum in Support of Ex Parte Application to Modify Amended Order, # 2 Declaration of Lindsay M. Vick, # 3 Exhibit A − J, # 4 Proposed Order)(Vick, Lindsay) (Entered: 02/26/2018)
166 OPPOSITION re: Second EX PARTE APPLICATION for Order for Modify Amended Order Setting Discovery Deadlines 164 filed by Plaintiff Cesar Matias. (Attachments: # 1 Declaration of Douglas A. Smith and Exs. 1−4)(Smith, Douglas) (Entered: 02/26/2018)
167 MINUTES (IN CHAMBERS) by Magistrate Judge Kenly Kiya Kato: denying 164 Ex Parte Application to Amend Deadline to Comply with Discovery Order [Dkt. 164]on or before March 9, 2018, the parties shall meet and confer and file a joint report proposing a realistic, detailed plan for timely providing to Plaintiffs the responsive documents in order to facilitate timely prosecution of this action. (dts) (Entered: 03/02/2018)
168 REQUEST for Discovery regarding PLAINTIFFS' PROPOSED PLAN FOR DEFENDANTS TO TIMELY PROVIDE RESPONSIVE DOCUMENTS TO PLAINTIFFS filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Declaration of Douglas A. Smith and Exhibits 1−11)(Smith, Douglas) (Entered: 03/09/2018)
169 REPORT of Defendants' Proposed Discovery Plan filed by Defendants James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P Osuna, Sarah Saldana. (Attachments: # 1 Declaration, # 2 Exhibit A − Pls' First Set of Discovery Requests, # 3 Exhibit B − Defs' March 6 Letter, # 4 Exhibit C − Pls' March 8 Letter, # 5 Exhibit D

03/13/2018 03/23/2018 03/24/2018 03/26/2018 03/28/2018 03/30/2018 04/02/2018 04/03/2018
04/12/2018

− Defs' March 9 Email, # 6 Exhibit E − Pls' March 9 Email, # 7 Exhibit F − Pls' February 15 Letter, # 8 Exhibit G − Defs' February 21 Letter, # 9 Exhibit H − King Declaration, # 10 Exhibit I − Curry Declaration, # 11 Exhibit J − Whitted Declaration, # 12 Exhibit K − Dominic Declaration)(Westwater, Gisela) (Entered: 03/09/2018)
170 MINUTES (IN CHAMBERS) ORDER by Magistrate Judge Kenly Kiya Kato, re Report,, 169 , REQUEST for Discovery regarding PLAINTIFFS' PROPOSED PLAN FOR DEFENDANTS TO TIMELY PROVIDE RESPONSIVE DOCUMENTS TO PLAINTIFFS 168 The parties are ordered to file a joint list of agreed search terms and custodians on or before March 23, 2018. The parties shall then file a joint report on or before March 28, 2018 regarding their proposed discovery plans in order to facilitate the timely resolution of this action on the merits. (dts) (Entered: 03/13/2018)
171 Joint STIPULATION for Extension of Time to File A JOINT LIST OF AGREED SEARCH TERMS AND CUSTODIANS AND A JOINT DISCOVERY PLAN filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Proposed Order)(Zack, Adrienne) (Entered: 03/23/2018)
172 DECLARATION of Kobie Crawl and Scott A. Whitted re Stipulation for Extension of Time to File, 171 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Declaration)(Zack, Adrienne) (Entered: 03/24/2018)
173 ORDER ON JOINT STIPULATION REGARDING THE COURT'S MARCH 13, 2018 ORDER TO FILE A JOINT DISCOVERY PLAN AND JOINT AGREED LIST OF SEARCH TERMS AND CUSTODIANS, ECF No. 170 by Magistrate Judge Kenly Kiya Kato, re Stipulation for Extension of Time to File, 171 . Good cause appearing, the Court orders: 1. By Wednesday, March 28, 2018, the Parties will file a joint list of agreed search terms and custodians; and 2. By Friday, March 30, 2018, the Parties will file a joint report regarding their proposed discovery plans. (iva) (Entered: 03/26/2018)
174 NOTICE OF JOINT LISTS OF AGREED SEARCH TERMS AND CUSTODIANS filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Smith, Douglas) (Entered: 03/28/2018)
175 JOINT REPORT of DISCOVERY PLAN filed by Defendants James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P Osuna, Sarah Saldana. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Declaration of Scott Whitted)(Platt, Steven) (Entered: 03/31/2018)
176 [Corrected] JOINT REPORT of DISCOVERY PLAN − [corrected to add attorneys' missing electronic signatures] filed by Defendants James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P Osuna, Sarah Saldana. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Declaration of Scott Whitted)(Platt, Steven) (Entered: 04/02/2018)
177 NOTICE of Appearance filed by attorney Katherine J Shinners on behalf of Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana (Attorney Katherine J Shinners added to party Jon Briggs(pty:dft), Attorney Katherine J Shinners added to party Christina Holland(pty:dft), Attorney Katherine J Shinners added to party Sandra Hutchens(pty:dft), Attorney Katherine J Shinners added to party James Janecka(pty:dft), Attorney Katherine J Shinners added to party David Jennings(pty:dft), Attorney Katherine J Shinners added to party Jeh Johnson(pty:dft), Attorney Katherine J Shinners added to party Mike Kreuger(pty:dft), Attorney Katherine J Shinners added to party Loretta Lynch(pty:dft), Attorney Katherine J Shinners added to party Juan P Osuna(pty:dft), Attorney Katherine J Shinners added to party Carlos Roja(pty:dft), Attorney Katherine J Shinners added to party Sarah Saldana(pty:dft))(Shinners, Katherine) (Entered: 04/03/2018)
178 MINUTE ORDER Re: Appointment of Special Master (IN CHAMBERS) by Magistrate Judge Kenly Kiya Kato. (SEE ORDER FOR FURTHER DETAILS) IT IS THEREFORE ORDERED that no later than April 19, 2018, each party shall file a Memorandum Re: Nomination of Special Master ("Memorandum") identifying three candidates to be considered for the appointment of Special Master. At a minimum, the Memorandum shall include a copy of the candidates' resumes and a description of their

04/13/2018
04/19/2018 04/19/2018 05/23/2018
05/25/2018 06/06/2018 06/07/2018 06/13/2018
06/14/2018 06/15/2018 06/22/2018 06/23/2018

background, especially as it relates to handling and/or ruling on discovery matters in federal court. The Memorandum shall not exceed ten pages. (iva) (Entered: 04/12/2018)
179 Notice of Appearance or Withdrawal of Counsel: for attorney Steven A Platt counsel for Defendants James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P Osuna, Sarah Saldana. Steven A. Platt is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G−123 Notice. Filed by Defendants James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P. Osuna, Sarah Saldana. (Platt, Steven) (Entered: 04/13/2018)
180 Plaintiffs' Memorandum Re: Nomination of Special Master filed by Plaintiffs Xochitl Hernandez, Cesar Matias re: Minutes of In Chambers Order/Directive − no proceeding held,, 178 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Kaufman, Michael) (Entered: 04/19/2018)
181 Defendants' Memorandum re: Nomination of Special Master filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana re: Minutes of In Chambers Order/Directive − no proceeding held,, 178 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Zack, Adrienne) (Entered: 04/19/2018)
182 ORDER RE: APPOINTMENT OF SPECIAL MASTER by Judge Jesus G. Bernal. Based on the foregoing, IT IS ORDERED THAT: 1. The Hon. Rosalyn Chapman (Ret.) is tentatively appointed as Special Master ("Special Master") in this action pursuant to Rule 53(a) pending Judge Chapmans submission of an affidavit pursuant to Rule 53(b)(3)(A). Plaintiffs counsel shall forthwith provide Judge Chapman with a copy of this Order. (SEE ORDER FOR FURTHER DETAILS) (iva) (Entered: 05/23/2018)
183 CONSENT OF SPECIAL MASTER AND AFFIDAVIT by Special Master Rosalyn M Chapman (Ret.) (jp) (Entered: 05/25/2018)
184 Joint STIPULATION for Order to Amend the Court's Order (Dkt. 149) Regarding Defendants' Discovery Obligations filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Proposed Order)(Kaufman, Michael) (Entered: 06/06/2018)
185 ORDER APPROVING JOINT STIPULATION by Magistrate Judge Kenly Kiya Kato: re Stipulation for Order 184 , Order on Motion to Compel 129 , Stipulation and Order 149 . (dts) (Entered: 06/07/2018)
186 Notice of Appearance or Withdrawal of Counsel: for attorney John Christopher Korevec counsel for Plaintiffs Xochitl Hernandez, Cesar Matias. John C. Korevec 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 Xochitl Hernandez, Cesar Matias, for themselves and on behalf of similarly−situated individuals. (Korevec, John) (Entered: 06/13/2018)
187 Joint STIPULATION for Order to Amend Para. 6 of ECF 182 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Proposed Order, # 2 Declaration of Jerome Krisak)(Shinners, Katherine) (Entered: 06/14/2018)
188 ORDER ON JOINT STIPULATION REGARDING THE COURTS ORDER RE: APPOINTMENT OF SPECIALMASTER, ECF No. 182 187 by Judge Jesus G. Bernal. (es) (Entered: 06/20/2018)
189 Notice of Appearance or Withdrawal of Counsel: for attorney Matthew Eric Sloan counsel for Plaintiffs Xochitl Hernandez, Cesar Matias. Michael David Hidalgo 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 Xochitl Hernandez, Cesar Matias. (Sloan, Matthew) (Entered: 06/22/2018)
190 Notice of Appearance or Withdrawal of Counsel: for attorney Yamileth G Davila counsel for Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. Yamileth G. Davila is no longer counsel of record for the

07/05/2018 07/06/2018
07/06/2018 07/09/2018 07/10/2018 07/17/2018 07/18/2018 07/19/2018 07/20/2018 07/20/2018

aforementioned party in this case for the reason indicated in the G−123 Notice. Filed by defendants Jefferson B. Sessions, III, U.S. Attorney General, et al.. (Davila, Yamileth) (Entered: 06/23/2018)
191 PLAINTIFFS−PETITIONERS' INITIAL DISCLOSURE filed by Plaintiffs Xochitl Hernandez, Cesar Matias (Smith, Douglas) (Entered: 07/05/2018)
192 NOTICE of Appearance filed by attorney Courtney Elizabeth Moran on behalf of Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana (Attorney Courtney Elizabeth Moran added to party Jon Briggs(pty:dft), Attorney Courtney Elizabeth Moran added to party Christina Holland(pty:dft), Attorney Courtney Elizabeth Moran added to party Sandra Hutchens(pty:dft), Attorney Courtney Elizabeth Moran added to party James Janecka(pty:dft), Attorney Courtney Elizabeth Moran added to party David Jennings(pty:dft), Attorney Courtney Elizabeth Moran added to party Jeh Johnson(pty:dft), Attorney Courtney Elizabeth Moran added to party Mike Kreuger(pty:dft), Attorney Courtney Elizabeth Moran added to party Loretta Lynch(pty:dft), Attorney Courtney Elizabeth Moran added to party Juan P Osuna(pty:dft), Attorney Courtney Elizabeth Moran added to party Carlos Roja(pty:dft), Attorney Courtney Elizabeth Moran added to party Sarah Saldana(pty:dft))(Moran, Courtney) (Entered: 07/06/2018)
193 DEFENDANTS' INITIAL DISCLOSURE filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana (Attachments: # 1 Defendants' Amended Initial Disclosures)(Zack, Adrienne) (Entered: 07/06/2018)
194 INITIAL DISCOVERY ORDER by Special Master. The Special Master and counsel discussed Docket Nos. 174 and 176 and how to assure Defendants more promptly comply with Judge Katos Orders in Docket Nos. 129 / 149 . The Special Master will issue a separate Order addressing these matters. SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 07/11/2018)
195 DISCOVERY ORDER RE DEFENDANTS' COMPLIANCE WITH DOCKET NO. 129 by Special Master. SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 07/11/2018)
196 Notice of Appearance or Withdrawal of Counsel: for attorney Matthew Erik Delgado counsel for Plaintiffs Xochitl Hernandez, Cesar Matias. Matthew Erik Delgado 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 Matthew Erik Delgado. (Delgado, Matthew) (Entered: 07/17/2018)
197 NOTICE OF MOTION AND MOTION for Extension of Time to File Defendant DHS's declarations required to be filed under Dkt. No. 195 filed by Defendant Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Proposed Order granting extension)(Westwater, Gisela) (Entered: 07/18/2018)
198 ORDER EXTENDING TIME TO FILE TO FILE DECLARATIONS by Special Master re: Motion for Extension of Time to File 197 . The time for Defendant Department of Homeland Security to file the declarations ordered at the July 3, 2018 hearing, including the declaration required by Paragraph 1 of the July 10, 2018 Order (Dkt. No. 195), is extended through July 27, 2018. (hr) (Entered: 07/19/2018)
199 JOINT REPORT Rule 26(f) Discovery Plan (Amended) ; estimated length of trial 7, filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana.. (Westwater, Gisela) (Entered: 07/20/2018)
200 DECLARATION of Jean King filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Declaration of Jean King)(Shinners, Katherine) (Entered: 07/20/2018)

07/22/2018 07/27/2018 08/02/2018
08/02/2018
08/02/2018 08/03/2018 08/15/2018 08/16/2018 08/16/2018 08/16/2018

201 Notice of Appearance or Withdrawal of Counsel: for attorney Lindsay M Vick counsel for Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. Filed by defendant Lindsay M Vick. (Vick, Lindsay) (Entered: 07/22/2018)
202 DECLARATION of Matthew T. Albence and Nathalie R. Asher filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Declaration of Matthew T. Albence, # 2 Declaration of Nathalie R. Asher)(Shinners, Katherine) (Entered: 07/27/2018)
203 NOTICE of Appearance filed by attorney Ozlem B Barnard on behalf of Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana (Attorney Ozlem B Barnard added to party Jon Briggs(pty:dft), Attorney Ozlem B Barnard added to party Christina Holland(pty:dft), Attorney Ozlem B Barnard added to party Sandra Hutchens(pty:dft), Attorney Ozlem B Barnard added to party James Janecka(pty:dft), Attorney Ozlem B Barnard added to party David Jennings(pty:dft), Attorney Ozlem B Barnard added to party Jeh Johnson(pty:dft), Attorney Ozlem B Barnard added to party Mike Kreuger(pty:dft), Attorney Ozlem B Barnard added to party Loretta Lynch(pty:dft), Attorney Ozlem B Barnard added to party Juan P Osuna(pty:dft), Attorney Ozlem B Barnard added to party Carlos Roja(pty:dft), Attorney Ozlem B Barnard added to party Sarah Saldana(pty:dft))(Barnard, Ozlem) (Entered: 08/02/2018)
204 NOTICE OF MOTION AND MOTION for Extension of Time to File privilege log required to be served on Plaintiffs under Dkt. No. 195 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Proposed Order) (Attorney Brian Christopher Ward added to party Jon Briggs(pty:dft), Attorney Brian Christopher Ward added to party Christina Holland(pty:dft), Attorney Brian Christopher Ward added to party Sandra Hutchens(pty:dft), Attorney Brian Christopher Ward added to party Mike Kreuger(pty:dft), Attorney Brian Christopher Ward added to party Carlos Roja(pty:dft)) (Ward, Brian) (Entered: 08/02/2018)
205 ORDER by Special Master: granting 204 MOTION for Extension to Serve Privilege Log. IT IS ORDERED that the unopposed ex parte request of Defendant Department of Homeland Security to serve its initial privilege log on Plaintiffs is extended until August 8, 2018. (twdb) (Entered: 08/02/2018)
206 DECLARATION of Clayton M. McLean filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Declaration 1−Declaration McLean)(Barnard, Ozlem) (Entered: 08/03/2018)
207 NOTICE OF MOTION AND MOTION for Leave to file Declaration EOIR King filed by Defendants Counsel Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Declaration EOIR King Dec, # 2 Proposed Order Proposed Order)(Barnard, Ozlem) (Entered: 08/15/2018)
208 STATUS REPORT JOINT filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Moran, Courtney) (Entered: 08/16/2018)
209 ORDER GRANTING UNOPPOSED MOTION FOR LEAVE TO FILE A SUPPLEMENTAL DECLARATION FROM DEFENDANT EOIR 207 by Special Master Hon. Rosalyn M. Chapman (Ret). IT IS HEREBY ORDERED that the Declaration of Jean King, General Counsel, EOIR, attached to the motion shall be filed as of this date. (lom) Modified on 8/16/2018 (lom). (Entered: 08/16/2018)
210 DECLARATION of Jean King filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (lom) (Entered: 08/16/2018)

08/16/2018 08/17/2018
08/24/2018 08/24/2018 08/29/2018 08/30/2018
08/31/2018 09/04/2018 09/04/2018 09/12/2018 09/13/2018
09/14/2018

212 SECOND DISCOVERY ORDER RE DEFENDANTS' COMPLIANCE WITH DOCKET NO. 129 by Special Master 129 . (twdb) (Entered: 08/17/2018)
211 Notice of Appearance or Withdrawal of Counsel: for attorney Adrienne Zack counsel for Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. Adrienne Zack is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G−123 Notice. Filed by Defendants All. (Zack, Adrienne) (Entered: 08/17/2018)
213 STIPULATION to AMEND DISCOVERY Order 195 filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Proposed Order)(Smith, Douglas) (Entered: 08/24/2018)
214 ORDER APPROVING STIPULATION TO AMEND DISCOVERY ORDER, DOCKET NO. 195 by Special Master, Rosalyn M. Chapman (Ret.) re Stipulation to Amend/Correct 213 . (twdb) (Entered: 08/28/2018)
215 NOTICE OF MOTION AND MOTION of Non−Resident Attorney David Hausman to Appear Pro Hac Vice on behalf of Plaintiffs Xochitl Hernandez, Cesar Matias (Pro Hac Vice Fee − $400 Fee Paid, Receipt No. 0973−22335075) filed by Plaintiff Xochitl Hernandez, Cesar Matias. (Kaufman, Michael) (Entered: 08/29/2018)
216 NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: NOTICE OF MOTION AND MOTION of Non−Resident Attorney David Hausman to Appear Pro Hac Vice on behalf of Plaintiffs Xochitl Hernandez, Cesar Matias (Pro Hac Vice Fee − $400 Fee Paid, Receipt No. 0973−22335075) 215 . The following error(s) was/were found: Local Rule 83−2.1.3.3(b) Proposed order not attached. (lom) (Entered: 08/30/2018)
217 JOINT REPORT filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Exhibit A)(Ward, Brian) (Entered: 08/31/2018)
218 APPLICATION of Non−Resident Attorney David Hausman to Appear Pro Hac Vice on behalf of Plaintiffs Xochitl Hernandez, Cesar Matias (Pro Hac Vice Fee − $400.00 Previously Paid on 8/29/2018, Receipt No. 26bu6i32) filed by plaintiff Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Proposed Order) (Kaufman, Michael) (Entered: 09/04/2018)
219 ORDER by Judge Jesus G. Bernal: granting 218 Non−Resident Attorney David Hausman APPLICATION to Appear Pro Hac Vice on behalf of Hernandez et al., designating Michael Kaufman as local counsel. (twdb) (Entered: 09/04/2018)
220 STATUS REPORT filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Ward, Brian) (Entered: 09/12/2018)
221 NOTICE OF MOTION AND MOTION to Compel RESPONSES TO DEFENDANTS FIRST SET OF INTERROGATORIES AND FIRST SET OF REQUESTS FOR PRODUCTION TO EACH NAMED PLAINTIFF filed by DEFENDANTS Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Joint Stipulation, # 2 Declaration of Courtney E. Moran and Exhibits 1−17, # 3 Declaration of Douglas Smith and Exhibit 1, # 4 Proposed Order)(Moran, Courtney) (Entered: 09/13/2018)
222 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: MOTION to Compel RESPONSES TO DEFENDANTS FIRST SET OF INTERROGATORIES AND FIRST SET OF REQUESTS FOR PRODUCTION TO EACH NAMED PLAINTIFF 221 . The following error(s) was/were found: Hearing information is missing, incorrect, or not timely. 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. (ad) (Entered: 09/14/2018)

09/14/2018 09/27/2018 09/27/2018
10/09/2018
10/15/2018 10/15/2018 10/17/2018 10/23/2018
10/23/2018 10/24/2018 10/25/2018

223 NUNC PRO TUNC ORDER AMENDING DOCKET NO 194, by Special Master 194 . IT IS FURTHER ORDERED that the Case Management shall promptly serve this Order on the parties and the District Court. (twdb) (Entered: 09/14/2018)
224 MEMORANDUM in Support of MOTION to Compel RESPONSES TO DEFENDANTS FIRST SET OF INTERROGATORIES AND FIRST SET OF REQUESTS FOR PRODUCTION TO EACH NAMED PLAINTIFF 221 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Moran, Courtney) (Entered: 09/27/2018)
225 SUPPLEMENT to MOTION to Compel RESPONSES TO DEFENDANTS FIRST SET OF INTERROGATORIES AND FIRST SET OF REQUESTS FOR PRODUCTION TO EACH NAMED PLAINTIFF 221 Plaintiffs' Supplemental Memorandum In Support of Their Opposition to Defendants' Motion to Compel Discovery Responses filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Declaration of Douglas A. Smith and Exhibits 1 through 5)(Smith, Douglas) (Entered: 09/27/2018)
226 NOTICE OF MOTION AND MOTION for Discovery regarding PLAINTIFFS' MOTION FOR ATTORNEYS' FEES FOR OPPOSING DEFENDANTS' EX PARTE APPLICATIONS TO EXTEND COURT−ORDERED DISCOVERY DEADLINES and LOCAL RULE 37−2.1 JOINT STIPULATION [No Hearing Set Per Special Master's Initial Discovery Order, ECF 194] filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Declaration of Douglas A. Smith with Exhibits 1−7, # 2 Declaration of Carol Sobel with Exhibits 1−9, # 3 Declaration of Brian C. Ward with Exhibits 1−6, # 4 Proposed Order)(Smith, Douglas) (Entered: 10/09/2018)
227 STATUS REPORT JOINT filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Moran, Courtney) (Entered: 10/15/2018)
228 ORDER by Special Master: GRANTING, IN PART, AND DENYING, IN PART, DEFENDANTS' MOTION TO COMPEL 221 . SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 10/16/2018)
229 Notice of Appearance or Withdrawal of Counsel: for attorney Lindsay M Vick counsel for Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. Adding Lindsay M. Vick as counsel of record for Defendants for the reason indicated in the G−123 Notice. Filed by defendants Lindsay M. Vick. (Vick, Lindsay) (Entered: 10/17/2018)
230 MEMORANDUM in Opposition to MOTION for Discovery regarding PLAINTIFFS' MOTION FOR ATTORNEYS' FEES FOR OPPOSING DEFENDANTS' EX PARTE APPLICATIONS TO EXTEND COURT−ORDERED DISCOVERY DEADLINES and LOCAL RULE 37−2.1 JOINT STIPULATION [No Hearing Set Per Special Ma 226 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Vick, Lindsay) (Entered: 10/23/2018)
231 MEMORANDUM in Support of MOTION for Discovery regarding PLAINTIFFS' MOTION FOR ATTORNEYS' FEES FOR OPPOSING DEFENDANTS' EX PARTE APPLICATIONS TO EXTEND COURT−ORDERED DISCOVERY DEADLINES and LOCAL RULE 37−2.1 JOINT STIPULATION [No Hearing Set Per Special Ma 226 filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Smith, Douglas) (Entered: 10/23/2018)
232 Joint STIPULATION to Continue Plaintiffs' Deadline To Comply With The Special Master's Order Re Defendants' Motion To Compel from October 26, 2018 to November 1, 2018 Re: Order on Motion to Compel 228 filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Proposed Order)(Smith, Douglas) (Entered: 10/24/2018)
233 ORDER ON JOINT STIPULATION TO EXTEND PLAINTIFFS' DEADLINE TO COMPLY WITH THE SPECIAL MASTER'S ORDER RE DEFENDANTS' MOTION TO COMPEL 228 by Special Master Rosalyn M Chapman. The Court orders: Plaintiffs' deadline to comply with the Special Master's Order Re Defendants'

10/25/2018 10/26/2018
10/31/2018 11/01/2018
11/05/2018 11/05/2018 11/09/2018 11/13/2018 11/16/2018

Motion to Compel is extended from Friday, October 26, 2018, to Thursday, November 1, 2018. (lom) (Entered: 10/25/2018)
234 Joint STIPULATION to Continue Pretrial and Trial Dates from 11/15/18, 12/06/18, 12/20/18, 01/25/19, 03/04/19, 04/15/19, and 04/30/19 respectively to 02/22/19, 03/15/19, 04/05/19, 04/19/19, 06/21/19, 06/24/19, 08/05/19, and 08/20/19 respectively Re: Order,,,, Set/Reset Deadlines/Hearings,,, 132 filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Proposed Order)(Smith, Douglas) (Entered: 10/25/2018)
235 ORDER by Judge Jesus G. Bernal, Granting Joint Stipulation to Continue Pretrial and Trial Dates 234 . Good cause appearing, the Court amends the Civil Trial Scheduling Order ECF 132 as follows: Fact Discovery cut−off 2/22/2019., Initial Expert Disclosure 3/15/19., Rebuttal Expert Disclosure 4/5/19., Expert Discovery Cutoff 4/19/19., Last Date to Hear Dispositive Motions 6/24/2019., Last date to conduct settlement conference is 6/21/2019., Trial continued to 8/20/2019 at 09:00 AM before Judge Jesus G. Bernal., Final Pretrial Conference continued to 8/5/2019 at 11:00 AM before Judge Jesus G. Bernal. SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 10/31/2018)
236 Joint STIPULATION to Continue PLAINTIFFS' DEADLINE TO COMPLY WITH THE SPECIAL MASTER'S ORDER RE DEFENDANTS' MOTION TO COMPEL [ECF NO. 228] from November 1, 2018 to when the Court rules on Plaintiffs Rule 53(f) motion and objections, or until Friday, December 7, 2018, whichever is sooner Re: Order on Motion to Compel 228 filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Proposed Order)(Smith, Douglas) (Entered: 10/31/2018)
237 ORDER on Joint Stipulation to Extend Plaintiffs Deadline to Comply with the Special Master's Order re Defendants' Motion to Complaint 236 by Special Master Rosalyn M Chapman. The deadline for Plaintiffs to comply with the Special Master's Order on Defendants' Motion to Compel (ECF No. 228 ) is stayed until the Court rules on Plaintiffs' Rule 53(f) motion and objections, or until Friday, 12/7/2018, whichever is sooner, so long as Plaintiffs file their Rule 53(f) motion and objections on or before 11/5/2018, and set the hearing on the motion for Monday, 12/3/2018. If Plaintiffs do not do so, the stay of the deadline for compliance will end on Monday, 11/5/2018. (jp) (Entered: 11/02/2018)
238 NOTICE OF MOTION AND MOTION for Hearing re PLAINTIFFS' RULE 53(f) OBJECTIONS AND MOTION TO ADOPT IN PART THE SPECIAL MASTER'S ORDER ON DISCOVERY FROM THE NAMED PLAINTIFFS [ECF NO. 228], re Order on Motion to Compel 228 , filed by Plaintiffs Xochitl Hernandez, Cesar Matias. Motion set for hearing on 12/3/2018 at 09:00 AM before Judge Jesus G. Bernal. (Attachments: # 1 Declaration of Douglas A. Smith with Exhibit 1, # 2 Proposed Order) (Smith, Douglas) (Entered: 11/05/2018)
239 REQUEST for Review of Special Master's Named Plaintiff Discovery Order re Order on Motion to Compel 228 Rule 53(f) Objections filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Moran, Courtney) (Entered: 11/05/2018)
240 ORDER by Special Master: Denying 226 Plaintiffs' Motion for Attorney Fees Related to Two Ex Parte Applications. RE: 231 230 . The Case Manager shall promptly file and serve this Order on the parties and the District Court. SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 11/09/2018)
241 OPPOSITION to NOTICE OF MOTION AND MOTION for Hearing re PLAINTIFFS' RULE 53(f) OBJECTIONS AND MOTION TO ADOPT IN PART THE SPECIAL MASTER'S ORDER ON DISCOVERY FROM THE NAMED PLAINTIFFS [ECF NO. 228], re Order on Motion to Compel 228 , 238 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Proposed Order)(Moran, Courtney) (Entered: 11/13/2018)
242 Joint STIPULATION to AMEND Order,,, Set/Reset Deadlines/Hearings,, 235 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David

11/19/2018 11/19/2018 11/26/2018 11/26/2018
11/28/2018 11/29/2018 11/30/2018 11/30/2018 12/03/2018 12/03/2018

Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Proposed Order)(Ward, Brian) (Entered: 11/16/2018)
243 ORDER by Judge Jesus G. Bernal, Granting Stipulation to Amend/Correct Pretrial and Trial Dates, Docket No. 235 242 . The Court orders: Plaintiffs will make Plaintiff Matias available for a deposition on November 27, 2018, and Plaintiff Hernandez available for a deposition on November 29, 2018, or on other mutually agreeable dates during the week of November 26, 2018. SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 11/19/2018)
244 REPLY IN SUPPORT OF NOTICE OF MOTION AND MOTION for Hearing re PLAINTIFFS' RULE 53(f) OBJECTIONS AND MOTION TO ADOPT IN PART THE SPECIAL MASTER'S ORDER ON DISCOVERY FROM THE NAMED PLAINTIFFS [ECF NO. 228], re Order on Motion to Compel 228 , 238 filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Declaration of Douglas A. Smith and Exs. 2 through 5)(Smith, Douglas) (Entered: 11/19/2018)
245 EX PARTE APPLICATION MOTION for Consideration of Defendants' Late−Filed Opposition (ECF No. 241) filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration of Courtney Moran and Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Proposed Order) (Westwater, Gisela) (Entered: 11/26/2018)
246 NOTICE OF ERRATA filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. correcting EX PARTE APPLICATION MOTION for Consideration of Defendants' Late−Filed Opposition (ECF No. 241) 245 (Attachments: # 1 Memorandum Corrected Notice of Ex Parte Application, # 2 Memorandum of Points and Authorities, # 3 Declaration of Courtney Moran and Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Proposed Order)(Westwater, Gisela) (Entered: 11/26/2018)
247 Notice of Appearance or Withdrawal of Counsel: for attorney Erica Shef counsel for Plaintiffs Xochitl Hernandez, Cesar Matias. Adding Erica Sedler as counsel of record for Plaintiffs for the reason indicated in the G−123 Notice. Filed by Plaintiffs Plaintiffs. (Attorney Erica Shef added to party Xochitl Hernandez(pty:pla), Attorney Erica Shef added to party Cesar Matias(pty:pla))(Shef, Erica) (Entered: 11/28/2018)
248 RESPONSE filed by Plaintiffs Xochitl Hernandez, Cesar Matiasto REQUEST for Review of Special Master's Named Plaintiff Discovery Order re Order on Motion to Compel 228 Rule 53(f) Objections 239 (Attachments: # 1 Declaration of Douglas A. Smith and Ex. 1)(Smith, Douglas) (Entered: 11/29/2018)
249 PLAINTIFFS OPPOSITION re: EX PARTE APPLICATION MOTION for Consideration of Defendants' Late−Filed Opposition (ECF No. 241) 245 filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Smith, Douglas) (Entered: 11/30/2018)
250 NOTICE OF ERRATA filed by Plaintiffs Xochitl Hernandez, Cesar Matias. correcting Objection/Opposition (Motion related) 249 (Attachments: # 1 Corrected Opposition to Defendants' Ex Parte Application to Accept Defendants' Late−Filed Opposition)(Smith, Douglas) (Entered: 11/30/2018)
251 TRANSCRIPT ORDER as to Plaintiffs Xochitl Hernandez, Cesar Matias for Court Reporter. Court will contact Shannon Cooper at shannon.cooper@skadden.com with further instructions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court reporter. (Smith, Douglas) (Entered: 12/03/2018)
256 MINUTES OF Motion Hearing held before Judge Jesus G. Bernal: MOTION FOR RE PLAINTIFFS RULE 53(f) OBJECTIONS AND MOTION TO ADOPT IN PART THE SPECIAL MASTERS ORDER ON DISCOVERY FROM NAMED PLAINTIFFS (Doc. No. 238). The Court and counsel confer. The Court makes findings as stated on the record. A separate order will issue memorializing the courts ruling. Court Reporter: Adele C. Frazier. (twdb) (Entered: 12/07/2018)

12/06/2018
12/06/2018 12/07/2018
12/07/2018 12/14/2018 12/26/2018 12/27/2018 12/27/2018 12/28/2018 01/23/2019 01/30/2019 01/30/2019

252 EX PARTE APPLICATION to Continue Discovery Deadline from December 7, 2018 to After Court Rules on Rule 53(f) Motion and Objections Re: Order,, 237 filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Motion to Extend the December 7, 2018, Deadline to Comply with the Special Master's Order (ECF No. 241) Until this Court Rules on Plaintiffs' Rule 53(f) Motion and Objections on that Order, # 2 Declaration of Douglas A. Smith, # 3 Proposed Order) (Smith, Douglas) (Entered: 12/06/2018)
254 MINUTES (IN CHAMBERS) by Judge Jesus G. Bernal: Order (1) GRANTING in Part and OVERRULING in Part Plaintiffs 53(f) Objections (Dkt. No. 238 ) and (2) GRANTING in Part and OVERRULING in Part Defendants 53(f) Objections (Dkt. No. 239 ). Granting motion 245 . SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) Modified on 12/7/2018 (twdb). (Entered: 12/07/2018)
253 Defendants' Opposition to Plaintiffs' Ex Parte Application to Extend the December 7, 2018 Deadline to Comply with the Special Master's October 15, 2018 Order on Defendants' Motion to Compel Opposition re: EX PARTE APPLICATION to Continue Discovery Deadline from December 7, 2018 to After Court Rules on Rule 53(f) Motion and Objections Re: Order,, 237 252 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Proposed Order)(Moran, Courtney) (Entered: 12/07/2018)
255 MINUTES (IN CHAMBERS) by Judge Jesus G. Bernal: GRANTING 252 Plaintiffs' EX PARTE APPLICATION to Extend Deadline to Comply with the Special Master's Order. Plaintiffs are granted forty−five (45) days from December 6, 2018 to comply with the Special Masters October 15, 2018 order, as modified by the Court. SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 12/07/2018)
257 STATUS REPORT JOINT filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Barnard, Ozlem) (Entered: 12/14/2018)
258 EX PARTE APPLICATION to Stay pending Lapse of Appropriations Defendants' Upcoming Deadlines filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Declaration Declaration of Katherine J. Shinners, # 2 Proposed Order) (Shinners, Katherine) (Entered: 12/26/2018)
259 Joint STIPULATION for Order TO EXTEND DISCOVERY DEADLINES AROUND THE HOLIDAYS filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Proposed Order)(Kaufman, Michael) (Entered: 12/27/2018)
260 ORDER ON JOINT STIPULATION TO EXTEND DISCOVERY DEADLINES AROUND THE HOLIDAYS by Special Master 259 . The Court orders as follows: 1. Defendants' deadline to serve their portion of the joint stipulation on Plaintiffs' "Motion To Enforce The December 1, 2017, Discovery Order (ECF No. 129)" is extended 18 days from December 20, 2018, to Monday, January 7, 2019 129 . SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 12/28/2018)
261 MINUTES (IN CHAMBERS) by Judge Jesus G. Bernal: GRANTING in Part Defendants' EX PARTE APPLICATION to Stay and Extension of Upcoming Deadlines (Dkt. No. 258 ). SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 12/28/2018)
262 NOTICE of Appearance filed by attorney Celso Javier Perez on behalf of Plaintiffs Xochitl Hernandez, Cesar Matias (Attorney Celso Javier Perez added to party Xochitl Hernandez(pty:pla), Attorney Celso Javier Perez added to party Cesar Matias(pty:pla))(Perez, Celso) (Entered: 01/23/2019)
263 STATUS REPORT REGARDING ADJUSTED DEADLINES FOLLOWING THE GOVERNMENT SHUTDOWN − Joint − filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Smith, Douglas) (Entered: 01/30/2019)
264 Joint STIPULATION for Order To Extend Deadlines and Continue Pretrial and Trial Dates in Light of the 2018−2019 Government Shutdown filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Proposed Order)(Smith, Douglas)

01/31/2019
02/11/2019 02/11/2019
02/12/2019 02/13/2019 02/15/2019 02/19/2019 02/19/2019 02/19/2019 02/25/2019

(Entered: 01/30/2019)
265 ORDER ON JOINT STIPULATION TO EXTEND DEADLINES AND CONTINUE PRETRIAL AND TRIAL DATES IN LIGHT OF THE 2018−2019 GOVERNMENT SHUTDOWN by Judge Jesus G. Bernal. The Court has reviewed the Parties Joint Stipulation to Extend Deadlines and Continue Pretrial and Trial Dates in Light of the 2018−2019 Government Shutdown. Good cause appearing, the Court orders the following deadlines: The Trial is set for 9/24/2019 at 09:00 AM, Pretrial Conference is set for 9/9/2019 at 11:00 AM before Judge Jesus G. Bernal. (See order for further details) (yl) (Entered: 02/04/2019)
266 APPLICATION to file document Defendants' Motion to Compel, Defendants' Exhibit 14 in support of the motion, and Defendants' Exhibit 15 in support of the motion under seal filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Proposed Order, # 2 Redacted Document)(Ward, Brian) (Entered: 02/11/2019)
267 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document Defendants' Motion to Compel, Defendants' Exhibit 14 in support of the motion, and Defendants' Exhibit 15 in support of the motion under seal 266 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Unredacted Document Unredacted Motion to Compel, # 2 Unredacted Document Unredacted Ex. 14, # 3 Unredacted Document Unredacted Ex. 15)(Ward, Brian) (Entered: 02/11/2019)
268 STATUS REPORT filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Ward, Brian) (Entered: 02/12/2019)
269 NOTICE OF MOTION AND MOTION for Discovery regarding PLAINTIFFS' MOTION TO ENFORCE THE DECEMBER 1, 2017, DISCOVERY ORDER (ECF NO. 129) [No Hearing Set Per Special Master's Initial Discovery Order, ECF 194] filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Declaration of David Hausman with Exs. A−J, # 2 Declaration of Lindsay M. Vick with Exs. 1−13, # 3 Proposed Order)(Hausman, David) (Entered: 02/13/2019)
270 ORDER GRANTING DEFENDANTS APPLICATION UNDER LOCAL RULE 79.5.2.2(b) FOR LEAVE TO FILE UNDER SEAL DOCUMENTS DESIGNATED CONFIDENTIAL BY PLAINTIFFS, by Special Master. 266 (twdb) Modified on 2/15/2019 (twdb). (Entered: 02/15/2019)
271 NOTICE OF MOTION AND MOTION to Compel New Depositions of the Named Plaintiffs and for Additional Relief Under Rule 30(d)(2) Redacted filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Moran Declaration and Exhibits, # 2 Kaufman Declaration, # 3 Proposed Order)(Moran, Courtney) (Entered: 02/19/2019)
272 SEALED NOTICE OF MOTION AND MOTION to Compel New Depositions of the Named Plaintiffs and for Additional Relief Under Rule 30(d)(2) [Unredacted] re Order 270 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Moran Declaration Exhibit 14 (Matias Deposition Transcript), # 2 Moran Declaration Exhibit 15 (Hernandez Deposition Transcript))(Moran, Courtney) (Entered: 02/19/2019)
273 NOTICE OF MOTION AND MOTION to Compel Documents Regarding Implementation of the Preliminary Injunction filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Declaration of Michael Kaufman, # 2 Declaration of Lindsay M. Vick, # 3 Proposed Order)(Kaufman, Michael) (Entered: 02/19/2019)
274 MEMORANDUM in Support of MOTION to Compel Documents Regarding Implementation of the Preliminary Injunction 273 filed by Plaintiff Cesar Matias. (Kaufman, Michael) (Entered: 02/25/2019)

02/25/2019 02/25/2019 02/27/2019 02/27/2019 02/28/2019 02/28/2019
03/04/2019 03/04/2019 03/05/2019
03/05/2019

275 NOTICE OF ERRATA filed by Plaintiffs Xochitl Hernandez, Cesar Matias. correcting MOTION to Compel Documents Regarding Implementation of the Preliminary Injunction 273 Exhibit 3 to Declaration of Michael Kaufman (Attachments: # 1 Exhibit 3 (Corrected))(Kaufman, Michael) (Entered: 02/25/2019)
276 MEMORANDUM in Opposition to MOTION to Compel Documents Regarding Implementation of the Preliminary Injunction 273 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Ward, Brian) (Entered: 02/25/2019)
277 MEMORANDUM in Support of MOTION for Discovery regarding PLAINTIFFS' MOTION TO ENFORCE THE DECEMBER 1, 2017, DISCOVERY ORDER (ECF NO. 129) [No Hearing Set Per Special Master's Initial Discovery Order, ECF 194] 269 filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Declaration of David Hausman with Ex. 1)(Hausman, David) (Entered: 02/27/2019)
278 MEMORANDUM in Opposition to MOTION for Discovery regarding PLAINTIFFS' MOTION TO ENFORCE THE DECEMBER 1, 2017, DISCOVERY ORDER (ECF NO. 129) [No Hearing Set Per Special Master's Initial Discovery Order, ECF 194] 269 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Vick, Lindsay) (Entered: 02/27/2019)
279 APPLICATION to file document Supplemental Memorandum in Support of Defendants' Motion to Compel under seal filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Proposed Order)(Ward, Brian) (Entered: 02/28/2019)
280 ORDER GRANTING DEFENDANTS APPLICATION UNDER LOCAL RULE 79−5.2.2(b) FOR LEAVE TO FILE UNDER SEAL INFORMATION DESIGNATED CONFIDENTIAL BY PLAINTIFFS by Special Master Rosalyn Chapman : The Special Master, having reviewed Defendants Application under Local Rule 79−5.2.2(b) for Leave to File under Seal Information Designated Confidential by Plaintiffs, hereby finds good cause to grant Defendants Application for leave to file the following document under seal: Defendants Supplemental Memorandum in Support of Defendants Motion to Compel New Depositions of the Named Plaintiffs and for Additional Relief Under Rule 30(d)(2). IT IS SO ORDERED. IT IS FURTHER ORDERED that the Case Manager shall promptly file and serve this Order on the parties and the District Court. (yl) (Entered: 02/28/2019)
281 ORDER by Special Master Hon. Rosalyn Chapman (Ret.): Having review the parties Joint Stipulation and Memorandum regarding Plaintiff's Motion to Compel.It is HEREBY ORDERED that Defendant will forthwith provide the Arbitrator with the under seal status report filed February 16, 2018, Dkt No. 162. The sealed document must be email to the Special Master and also sent by US Mail to the address listed in this order. (rh) (Entered: 03/04/2019)
282 ORDER by Special Master Hon. Rosalyn Chapman (Ret.), re Order on Motion to Compel 129 , MEMORANDUM in Opposition to Motion, 278 : After review of the parties Joint Stipulation and Supplemental Memorandum, IT IS HEREBY ORDERED that the parties shall meet and confer regarding the issue no later than March 14, 2019, and file a Joint Report on the resolution of this issue after the meet−and−confer process no later than March 18, 2019. (rh) (Entered: 03/04/2019)
283 MEMORANDUM in Support of MOTION to Compel New Depositions of the Named Plaintiffs and for Additional Relief Under Rule 30(d)(2) Redacted 271 , SEALED NOTICE OF MOTION AND MOTION to Compel New Depositions of the Named Plaintiffs and for Additional Relief Under Rule 30(d)(2) [Unredacted] re Order 270 272 [Redacted] filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Exhibit Defendants' 1st RFPs to Plaintiffs)(Moran, Courtney) (Entered: 03/05/2019)
284 SEALED DOCUMENT Unredacted Memorandum in Support re MOTION to Compel New Depositions of the Named Plaintiffs and for Additional Relief Under Rule

03/05/2019 03/12/2019 03/18/2019 03/21/2019
03/25/2019 03/26/2019 03/26/2019 03/29/2019 04/03/2019

30(d)(2) Redacted 271 , Memorandum in Support of Motion,, 283 , SEALED NOTICE OF MOTION AND MOTION to Compel New Depositions of the Named Plaintiffs and for Additional Relief Under Rule 30(d)(2) [Unredacted] re Order 270 272 , Order on Motion for Leave to File Document Under Seal,,, 280 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana.(Moran, Courtney) (Entered: 03/05/2019)
285 MEMORANDUM in Opposition to MOTION to Compel New Depositions of the Named Plaintiffs and for Additional Relief Under Rule 30(d)(2) Redacted 271 , SEALED NOTICE OF MOTION AND MOTION to Compel New Depositions of the Named Plaintiffs and for Additional Relief Under Rule 30(d)(2) [Unredacted] re Order 270 272 filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Declaration of Douglas A. Smith with Exs. 1 and 2)(Smith, Douglas) (Entered: 03/05/2019)
286 NOTICE OF MOTION AND MOTION for Protective Order for / to LIMIT THE TIME AND SCOPE OF POTENTIAL SECOND DEPOSITIONS OF THE NAMED PLAINTIFFS [No Hearing Set Per Special Master's Initial Discovery Order, ECF 194] filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Declaration of Douglas A. Smith with Exs. 1−2, # 2 Proposed Order)(Smith, Douglas) (Entered: 03/12/2019)
287 STATUS REPORT filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Vick, Lindsay) (Entered: 03/18/2019)
288 (Attorney Dhruman Y Sampat added to party Jon Briggs(pty:dft), Attorney Dhruman Y Sampat added to party Christina Holland(pty:dft), Attorney Dhruman Y Sampat added to party Sandra Hutchens(pty:dft), Attorney Dhruman Y Sampat added to party James Janecka(pty:dft), Attorney Dhruman Y Sampat added to party David Jennings(pty:dft), Attorney Dhruman Y Sampat added to party Jeh Johnson(pty:dft), Attorney Dhruman Y Sampat added to party Mike Kreuger(pty:dft), Attorney Dhruman Y Sampat added to party Loretta Lynch(pty:dft), Attorney Dhruman Y Sampat added to party Juan P Osuna(pty:dft), Attorney Dhruman Y Sampat added to party Carlos Roja(pty:dft), Attorney Dhruman Y Sampat added to party Sarah Saldana(pty:dft))(Sampat, Dhruman) (Entered: 03/21/2019)
289 ORDER by Special Master: Granting in part 273 Plaintiffs' Motion to Compel Documents Regarding Implementation of Preliminary Injunction. SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 03/25/2019)
290 MEMORANDUM in Opposition to MOTION for Protective Order for / to LIMIT THE TIME AND SCOPE OF POTENTIAL SECOND DEPOSITIONS OF THE NAMED PLAINTIFFS [No Hearing Set Per Special Master's Initial Discovery Order, ECF 194] 286 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Moran, Courtney) (Entered: 03/26/2019)
291 MEMORANDUM in Support of MOTION for Protective Order for / to LIMIT THE TIME AND SCOPE OF POTENTIAL SECOND DEPOSITIONS OF THE NAMED PLAINTIFFS [No Hearing Set Per Special Master's Initial Discovery Order, ECF 194] 286 filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Smith, Douglas) (Entered: 03/26/2019)
292 EX PARTE APPLICATION for Order for Extension of Fact Discovery Cutoff filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Memorandum re Defendants' Motion to Extend Fact Discovery Cutoff, # 2 Declaration and Exs 1−3, # 3 Proposed Order)(Moran, Courtney) (Entered: 03/29/2019)
293 Joint STIPULATION for Order to Extend Defendants' Deadline to Comply with the Court's Order, ECF No. 289, filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Proposed Order)(Ward, Brian) (Entered: 04/03/2019)

04/03/2019 04/05/2019 04/12/2019
04/15/2019 04/15/2019 04/15/2019
04/16/2019 04/17/2019 04/18/2019 04/22/2019 04/24/2019 04/24/2019

294 ORDER EXTENDING DEADLINE TO COMPLY WITH THE ORDER GRANTING, IN PART, PLAINTIFFS MOTION TO COMPEL DOCUMENTS REGARDING IMPLEMENTATION OF PRELIMINARY INJUNCTION, ECF No. 289 by Special Master. NOTE CHANGES TO ORDER. SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 04/03/2019)
295 OPPOSITION re: EX PARTE APPLICATION for Order for Extension of Fact Discovery Cutoff 292 filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Declaration of Douglas A. Smith and Exhibits 1−8)(Smith, Douglas) (Entered: 04/05/2019)
297 ORDER (1) GRANTING DEFENDANTS' MOTION TO COMPEL NEW DEPOSITIONS OF NAMED PLAINTIFFS; (2) GRANTING, IN PART, DEFENDANTS MOTION FOR ADDITIONAL RELIEF UNDER RULE 30(d)(2); (3) DENYING PLAINTIFFS MOTION FOR A PROTECTIVE ORDER; AND (4) GRANTING, IN PART, PLAINTIFFS MOTION FOR LIMITATIONS ON NEW DEPOSITIONS by Judge Jesus G. Bernal: (SEE ORDER FOR FURTHER DETAILS) (yl) (Entered: 04/15/2019)
296 EX PARTE APPLICATION for Order for the Court To Enjoin Defendants From Further Violating the Trial Scheduling Order and For Other Just Relief [Relief Needed by Wednesday, April 17, 2019] filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Motion To Enjoin Defendants From Further Violating the Trial Scheduling Order and For Other Just Relief, # 2 Declaration of Douglas A. Smith and Exhibits 1 − 6, # 3 Proposed Order) (Smith, Douglas) (Entered: 04/15/2019)
298 STATUS REPORT filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Ward, Brian) (Entered: 04/15/2019)
299 NOTICE OF MOTION AND MOTION for Hearing re Defendants' Objections under Rule 53(f), re Order on Motion to Compel 289 , filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. Motion set for hearing on 5/13/2019 at 09:00 AM before Judge Jesus G. Bernal. (Attachments: # 1 Declaration of Lindsay M. Vick, # 2 Proposed Order) (Ward, Brian) (Entered: 04/15/2019)
300 Joint STIPULATION for Order To Stay Non−Fact Discovery Deadlines filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Proposed Order)(Kaufman, Michael) (Entered: 04/16/2019)
301 PROCEEDINGS: Order (1) DENYING as Moot Defendants' Ex Parte Application to Extend Fact Discovery Cutoff Date (Dkt. No. 292) and (2) GRANTING in Part and DENYING in Part Plaintiffs Ex Parte Application Regarding Trial Scheduling Order (Dkt. No. 296 (IN CHAMBERS) by Judge Jesus G. Bernal: For the above reasons, the Court DENIES Defendants' ex parte application as moot. (SEE MINUTES FOR FURTHER DETAILS) (yl) (Entered: 04/17/2019)
302 NOTICE of Non−Waiver of ECF No. 297, Paragraph 5 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Moran, Courtney) (Entered: 04/18/2019)
303 OPPOSITION re: NOTICE OF MOTION AND MOTION for Hearing re Defendants' Objections under Rule 53(f), re Order on Motion to Compel 289 , 299 filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Declaration of Michael Kaufman and Exs. 1−12)(Kaufman, Michael) (Entered: 04/22/2019)
304 Joint STIPULATION for Order to Stay Deadlines in Order, ECF Nos. 289, 294 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Proposed Order)(Ward, Brian) (Entered: 04/24/2019)
305 Joint STIPULATION for Order TO STAY THE DEADLINES IN THE ORDER REGARDING NEW DEPOSITIONS OF THE NAMED PLAINTIFFS (ECF NO. 297) filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Proposed

04/24/2019 04/24/2019 04/24/2019
04/24/2019 04/25/2019 04/29/2019 04/29/2019 04/30/2019 04/30/2019 05/06/2019 05/06/2019

Order)(Smith, Douglas) (Entered: 04/24/2019)
306 ORDER STAYING DEADLINES IN ORDER GRANTING, IN PART, PLAINTIFFS MOTION TO COMPEL DOCUMENTS REGARDING IMPLEMENTATION OF PRELIMINARY INJUNCTION by Special Master. Re Stipulation 304 , 299 . SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 04/24/2019)
307 APPLICATION to file document Defendants' Motion to Enforce; Motion to Compel; Exhibits 7, 8, and 9 Supporting the Motions; and Supplemental Memoranda Supporting the Motions under seal filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Proposed Order)(Moran, Courtney) (Entered: 04/24/2019)
308 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document Defendants' Motion to Enforce; Motion to Compel; Exhibits 7, 8, and 9 Supporting the Motions; and Supplemental Memoranda Supporting the Motions under seal 307 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Unredacted Document [Ex. 7 Supporting Defs.' Motions], # 2 Unredacted Document [Ex. 8 Supporting Defs.' Motions], # 3 Unredacted Document [Portion of Ex. 9 Supporting Defs.' Motions])(Moran, Courtney) (Entered: 04/24/2019)
309 STATUS REPORT AND NOTICE OF WITHDRAWAL OF MOTION TO ENFORCE (ECF NO. 269) filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Kaufman, Michael) (Entered: 04/24/2019)
310 JOINT STIPULATION TO STAY THE DEADLINES IN THE ORDER REGARDING NEW DEPOSITIONS OF THE NAMED PLAINTIFFS (ECF NO. 297 ), by Special Master. DENIED. SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 04/25/2019)
311 Joint STIPULATION for Order To Stay The Deadline For Conducting New Depositions Of the Named Plaintiffs Pending Rule 53(f) Review And To Set A Hearing Date On Plaintiffs' Rule 53(f) Motion and Objections filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Proposed Order)(Smith, Douglas) (Entered: 04/29/2019)
312 REPLY in support of NOTICE OF MOTION AND MOTION for Hearing re Defendants' Objections under Rule 53(f), re Order on Motion to Compel 289 , 299 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Ward, Brian) (Entered: 04/29/2019)
313 ORDER by Judge Jesus G. Bernal, On Joint Stipulation for Order to Stay the Deadline for Conducting New Depositions of the Named Plaintiffs Pending Rule 53(f) Review and to Set a Hearing Date on Plaintiffs' Rule 53(f) Motion and Objections 311 . DENIED (SEE DOCUMENT FOR FURTHER INFORMATION) (twdb) (Entered: 05/01/2019)
314 ORDER ON JOINT STIPULATION TO MODIFY THE CIVIL TRIAL SCHEDULING ORDER by Judge Jesus G. Bernal 300 . DENIED (SEE DOCUMENT FOR FURTHER INFORMATION) (twdb) (Entered: 05/01/2019)
315 Supplemental APPLICATION to file document under seal filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Redacted Document Exhibit 1, # 2 Redacted Document Exhibit 2)(Ward, Brian) (Entered: 05/06/2019)
316 SEALED DECLARATION IN SUPPORT OF Supplemental APPLICATION to file document under seal 315 , APPLICATION to file document Defendants' Motion to Enforce; Motion to Compel; Exhibits 7, 8, and 9 Supporting the Motions; and Supplemental Memoranda Supporting the Motions under seal 307 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana.

05/06/2019 05/07/2019
05/09/2019
05/10/2019 05/10/2019 05/10/2019 05/13/2019 05/16/2019

(Attachments: # 1 Unredacted Document Exhibit D, # 2 Unredacted Document Exhibit E)(Moran, Courtney) (Entered: 05/06/2019)
317 NOTICE OF MOTION AND MOTION for Hearing re PLAINTIFFS' RULE 53(f) MOTION AND OBJECTIONS TO THE SPECIAL MASTERS ORDER (ECF No. 297), re Order on Motion to Compel,, Order on Sealed Motion (Generic sealed motion type event),, Order on Motion for Protective Order, 297 , filed by Plaintiffs Xochitl Hernandez, Cesar Matias. Motion set for hearing on 6/3/2019 at 09:00 AM before Judge Jesus G. Bernal. (Attachments: # 1 Declaration of Douglas A. Smith and Exs 1 to 4, # 2 Proposed Order) (Smith, Douglas) (Entered: 05/06/2019)
318 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: SUPPLEMENT to Defendant's APPLICATION to file document under seal 315 . The following error(s) was/were found: Incorrect event selected. Correct event to be used is: "Motions and Related Filings" − Responses/Replies/Other Motion Related Documents − Supplement (Motion related). 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. (ad) (Entered: 05/07/2019)
319 Joint STIPULATION to Continue Hearing on Plaintiffs' Rule 53(f) Motion and Objections to the Special Master's Order (ECF No. 297) from 06/03/2019 to 06/10/2019 Re: NOTICE OF MOTION AND MOTION for Hearing re PLAINTIFFS' RULE 53(f) MOTION AND OBJECTIONS TO THE SPECIAL MASTERS ORDER (ECF No. 297), re Order on Motion to Compel,, Order on Sealed Motion (Generic sealed motion type event),, Order on Motion for Pr 317 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Proposed Order)(Moran, Courtney) (Entered: 05/09/2019)
320 MINUTE ORDER IN CHAMBERS by Judge Jesus G. Bernal: Order (1) OVERRULING Defendants 53(f) Objections (Dkt. No. 299 ); (2) AMENDING the Pretrial Scheduling Order; and (3) VACATING the May 13, 2019 Hearing . Fact Discovery cut−off 7/31/2019. SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 05/10/2019)
321 SEALED DECLARATION IN SUPPORT OF Supplemental APPLICATION to file document under seal 315 , APPLICATION to file document Defendants' Motion to Enforce; Motion to Compel; Exhibits 7, 8, and 9 Supporting the Motions; and Supplemental Memoranda Supporting the Motions under seal 307 filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Unredacted Document Exhibit A, # 2 Redacted Document Exhibit A−1, # 3 Unredacted Document Exhibit B, # 4 Unredacted Document Exhibit C, # 5 Redacted Document Exhibit C−1)(Smith, Douglas) (Entered: 05/10/2019)
322 PROOF OF SERVICE filed by Plaintiffs Xochitl Hernandez, Cesar Matias, re Sealed Declaration in SupportDeclaration,, 321 served on May 10, 2019. (Smith, Douglas) (Entered: 05/10/2019)
323 ORDER ON JOINT STIPULATION TO CONTINUE HEARING AND SET BRIEFING SCHEDULE FOR PLAINTIFFS' RULE 53(f) MOTION AND OBJECTIONS TO THE SPECIAL MASTER'S ORDER (ECF. NO. 297 ) by Judge Jesus G. Bernal. Opposition due 5/17/19; Reply due 5/24/19; Hearing on Rule 53(f) Motion and Objections 6/10/19 at 9:00 a.m. SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 05/13/2019)
324 ORDER SETTING DATE BY WHICH DEFENDANTS SHALL COMPLY WITH ORDER GRANTING, IN PART, PLAINTIFFS MOTION TO COMPEL DOCUMENTS REGARDING IMPLEMENTATION OF PRELIMINARY INJUNCTION (DOCKET NO. 289 ) by the Honorable Rosalyn Chapman, Special Master. Having considered the parties arguments, the Special Master HEREBY ORDERS Defendants to comply with Docket No. 289, no later than May 31, 2019. Defendants should not expect any extensions of this deadline absent truly extraordinary circumstances. IT IS SO ORDERED. (yl) Modified on 5/16/2019 (yl). (Entered: 05/16/2019)

05/16/2019 05/17/2019 05/17/2019
05/17/2019 05/17/2019 05/21/2019
05/21/2019 05/23/2019 05/24/2019 05/28/2019 05/29/2019

325 REQUEST for Referral of Mediation filed by Joint Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson. (Attachments: # 1 Proposed Order) (Barnard, Ozlem) (Entered: 05/16/2019)
326 ORDER DENYING APPLICATION AND SUPPLEMENTAL APPLICATION TO FILE DOCUMENT UNDER SEAL (Dkt. Nos. 307 , 315 ) by Special Master: SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 05/17/2019)
327 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION for Hearing re PLAINTIFFS' RULE 53(f) MOTION AND OBJECTIONS TO THE SPECIAL MASTERS ORDER (ECF No. 297), re Order on Motion to Compel,, Order on Sealed Motion (Generic sealed motion type event),, Order on Motion for Pr 317 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Declaration and Exhibits 1−5, # 2 Proposed Order)(Moran, Courtney) (Entered: 05/17/2019)
328 SEALED DOCUMENT Moran Decl. Ex. 4 (Matias Deposition Transcript) re MEMORANDUM in Opposition to Motion,, 327 , Order 270 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana.(Moran, Courtney) (Entered: 05/17/2019)
329 SEALED DOCUMENT Moran Decl. Ex. 5 (Hernandez Deposition Transcript) re MEMORANDUM in Opposition to Motion,, 327 , Order 270 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana.(Moran, Courtney) (Entered: 05/17/2019)
330 EX PARTE APPLICATION for Review of the Special Master's Order, ECF No. 326, and Clarification of the Court's Order Amending the Pretrial Scheduling Order, re Order on Motion for Leave to File Document Under Seal 326 , Minutes of In Chambers Order/Directive − no proceeding held,, Terminate Hearings,, Set/Reset Deadlines, 320 filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Attachments: # 1 Declaration, # 2 Proposed Order) (Ward, Brian) (Entered: 05/21/2019)
331 ORDER by Judge Jesus G. Bernal: Granting 325 Joint REQUEST for Referral Voluntary Settlement Conference. This matter is hereby directly referred to Magistrate Judge Laurel Beeler of Northern District of California to conduct a Settlement Conference. Judge Beelers chambers will contact counsel to schedule a date and time for the conference to be conducted. (twdb) (Entered: 05/22/2019)
332 RESPONSE filed by Plaintiffs Xochitl Hernandez, Cesar Matiasto EX PARTE APPLICATION for Review of the Special Master's Order, ECF No. 326, and Clarification of the Court's Order Amending the Pretrial Scheduling Order, re Order on Motion for Leave to File Document Under Seal 326 , Minutes of In Chambe 330 (Smith, Douglas) (Entered: 05/23/2019)
333 REPLY IN SUPPORT OF NOTICE OF MOTION AND MOTION for Hearing re PLAINTIFFS' RULE 53(f) MOTION AND OBJECTIONS TO THE SPECIAL MASTERS ORDER (ECF No. 297), re Order on Motion to Compel,, Order on Sealed Motion (Generic sealed motion type event),, Order on Motion for Pr 317 filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Declaration of Douglas A. Smith & Exhibit 5)(Smith, Douglas) (Entered: 05/24/2019)
334 EX PARTE APPLICATION for Order for A Status Conference Or, In The Alternative, To Modify Expert Discovery Deadlines And Other Trial Scheduling Deadlines filed by Plaintiffs Xochitl Hernandez, Cesar Matias. (Attachments: # 1 Proposed Order) (Kaufman, Michael) (Entered: 05/28/2019)
335 RESPONSE filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldanato EX PARTE APPLICATION for Order for A Status Conference Or, In The Alternative, To Modify Expert Discovery Deadlines And Other Trial Scheduling Deadlines 334 (Ward, Brian) (Entered: 05/29/2019)

05/30/2019
05/31/2019 06/10/2019 06/11/2019 06/11/2019
06/14/2019 06/14/2019 06/18/2019 06/18/2019

336 MINUTES (IN CHAMBERS) Order DENYING Defendants' Ex Parte Application to Review the Special Master's Order (Dkt. No. 330 ) by Judge Jesus G. Bernal. Defendants' ex parte application is DENIED. The Court now clarifies that the deadline for either party to propound new discovery requests or to file new discovery−related motions has passed. No further extensions of the fact discovery cutoff will be granted. The sole purpose of fact discovery remaining open until the cutoff date of July 15, 2019 is to allow time for compliance with the Special Master's prior orders. In order to ensure that discovery comes to a final end on July 15, 2019, the Court will sanction any party who engages in dilatory or otherwise frivolous litigation conduct before this Court or the Special Master. (lom) (Entered: 05/30/2019)
337 SCHEDULING NOTICE by Judge Jesus G. Bernal. Plaintiffs' ex parte application for a status conference (ECF No. 336) is GRANTED IN PART. The Parties shall appear for a status conference on June 10, 2019, at 9:00 a.m. The application is denied without prejudice in all other respects. The June 3, 2019 hearing on Plaintiffs Rule 53(f) Motion (ECF No. 317) is adjourned to June 10, 2019, at 9:00 a.m. IT IS SO ORDERED. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (mga) TEXT ONLY ENTRY (Entered: 05/31/2019)
339 MINUTES (IN CHAMBERS) by Judge Jesus G. Bernal: (1) Hearing on Plaintiffs Rule 53(f) Motion and Objections to the Special Masters Order ECF (Dkt. No. 317 ). (2) Status Conference (Dkt No. 334 ). The Court takes the motion under submission. As to the status conference, Plaintiffs renewed their motion to modify the expert discovery deadlines and other trial scheduling deadlines. The Court orally ruled on their request. A separate order will issue setting forth the amended trial schedule. (twdb) (Entered: 06/12/2019)
338 TRANSCRIPT ORDER as to Plaintiffs Xochitl Hernandez, Cesar Matias for Court Reporter. Court will contact Shannon Cooper at shannon.cooper@skadden.com with further instructions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court reporter. (Smith, Douglas) (Entered: 06/11/2019)
340 MINUTE ORDER IN CHAMBERS by Judge Jesus G. Bernal: Order MODIFYING Trial Scheduling Deadlines. Plaintiffs renewed their motion to modify the expert discovery deadlines and other trial scheduling deadlines. The Court orally ruled on their motion and now ORDERS that the Civil Trial Scheduling Order be amended as follows: RE: 334 . Expert Discovery cut−off 9/16/2019., Dispositive Motions due by 12/2/2019., Last date to conduct settlement conference is 11/29/2019., Trial continued to 1/28/2020 at 09:00 AM before Judge Jesus G. Bernal., Pretrial Conference continued to 1/13/2020 at 11:00 AM before Judge Jesus G. Bernal. SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 06/12/2019)
341 Notice of Appearance or Withdrawal of Counsel: for attorney Joseph D Hardy, Jr counsel for Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. Joseph D. Hardy Jr. is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G−123 Notice. Filed by Defendants/Respondents William P. Barr, et al.. (Hardy, Joseph) (Entered: 06/14/2019)
342 STATUS REPORT filed by Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. (Ward, Brian) (Entered: 06/14/2019)
343 NOTICE of Manual Filing filed by Plaintiffs Xochitl Hernandez, Cesar Matias of Confidential transcripts of the November 27, 2018 and May 14, 2019 depositions of Cesar Matias and accompanying exhibits; and Confidential transcripts of the November 29, 2018 and May 15, 2019 depositions of Xochitl Hernandez and accompanying exhibits. (Smith, Douglas) (Entered: 06/18/2019)
344 MINUTES (IN CHAMBERS) by Judge Jesus G. Bernal: Order GRANTING IN PART and OVERRULING IN PART Plaintiffs 53(f) Objections (Dkt. No. 317 ). For the above reasons, the Court GRANTS Plaintiffs objection to Special Masters order imposing personal sanctions against Douglas A. Smith for costs and fees arising from the depositions the Named Plaintiffs. Plaintiffs objections are OVERRULED in all other respects. (twdb) (Entered: 06/19/2019)

07/29/2019 07/30/2019 08/05/2019 08/06/2019 08/27/2019
10/07/2019 10/08/2019
11/01/2019 11/19/2019

345 Notice of Appearance or Withdrawal of Counsel: for attorney Olivia Powar counsel for Plaintiffs Xochitl Hernandez, Cesar Matias. Olivia M. Powar 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 Plaintiffs. (Powar, Olivia) (Entered: 07/29/2019)
346 Notice of Appearance or Withdrawal of Counsel: for attorney David Hausman counsel for Plaintiffs Xochitl Hernandez, Cesar Matias. David Hausman is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G−123 Notice. Filed by Plaintiff David Hausman. (Hausman, David) (Entered: 07/30/2019)
347 Joint STIPULATION for Order to Stay Case Scheduling Deadlines for Settlement Negotiations filed by Plaintiffs−Petitioners Cesar Matias. (Attachments: # 1 Proposed Order)(Kaufman, Michael) (Entered: 08/05/2019)
348 ORDER by Judge Jesus G. Bernal, Granting Joint Stipulation to Stay Case Scheduling Deadlines for Settlement Negotiations 347 . Within 60 days of entry of this order, the Parties shall submit a status report to advise the Court on the status of negotiations. (twdb) (Entered: 08/07/2019)
349 Notice of Appearance or Withdrawal of Counsel: for attorney Gisela A Westwater counsel for Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. Gisela A Westwater is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G−123 Notice. Filed by Defendant Barr et al. (Westwater, Gisela) (Entered: 08/27/2019)
350 NOTICE Joint Status Report filed by Joint Jon Briggs, Rosalyn Chapman (Ret.), Christina Holland, Sandra Hutchens, James Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Loretta Lynch, Juan P Osuna, Carlos Roja, Sarah Saldana. and Plantiffs (Barnard, Ozlem) (Entered: 10/07/2019)
351 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Joint Status Report 350 . The following error(s) was/were found: Incorrect event selected. Correct event to be used is: "Other Filings" − Miscellaneous Filings − Status Report. 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. (ad) (Entered: 10/08/2019)
352 STIPULATION to Dismiss Defendant Jon Briggs, Christina Holland, Mike Kreuger, Carlos Roja, Sandra Hutchens filed by Defendants Sarah Saldana, Jon Briggs, Loretta Lynch, David Jennings, Christina Holland, Mike Kreuger, James Janecka, Juan P Osuna, Carlos Roja, Sandra Hutchens, Jeh Johnson.(Barnard, Ozlem) (Entered: 11/01/2019)
353 Notice of Appearance or Withdrawal of Counsel: for attorney Erica Sedler counsel for Plaintiffs Xochitl Hernandez, Cesar Matias. Erica Sedler 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 Plaintiffs. (Sedler, Erica) (Entered: 11/19/2019)