FOR PUBLICATION



### UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

A LEJANDRO R ODRIGUEZ , for himself and on behalf of a class of similarly

situated individuals; A BDIRIZAK A DEN F ARAH , for himself and on behalf of a class of similarly

- situated individuals; J OSE F ARIAS C ORNEJO ; Y USSUF A BDIKADIR ; A BEL P EREZ
R UELAS

, Petitioners

- Appellees /

Cross

- Appellants

,

and

E FREN O ROZCO

, Petitioner

,

v.

D AVID J ENNINGS

, ∗ Field Office Director, Los Angeles District, Immigration and Customs Enforcement; K IRSTJEN M. N IELSEN

, Secretary, Homeland Security;

J EFFERSON B. S ESSIONS I II , Attorney Nos

. 13

- 56706
13

- 56755

D.C. No.
2:07

- cv

- 03239

- TJH

- RNB

ORDER

∗ David Jennings, Kirstjen M. Nielsen, Jefferson B. Sessions III, and James McHenry are substituted in place of their predecesso rs. Fed. R. App. P. 43(c)(2).2 R ODRIGUEZ V

. J ENNINGS

General; W ESLEY L EE , Assistant Field Office Director, Immigration
and Customs Enforcem ent; R ODNEY
P ENNER , Captain, Mira Loma Detention Center; S ANDRA
H UTCHENS , Sheriff of Orange County; N GUYEN , Officer, Officer

in

- Charge, Theo Lacy Facility;

D AVIS N IGHSWONGER , Captain, Commander, Theo Lacy Facility;

M IKE K REUGER , Captain, Operations Manager , James A. Musick Facility;

A RTHUR E DWARDS , Officer

- in

Charge, Santa Ana City Jail;

R USSELL D AVIS , Jail Administrator, Santa Ana City Jail; J AMES
M C H ENRY , Director, Executive Office for Immigration Review, Respondents

- Appellants.

Filed April 12, 2018

Before: Kim McLane Wardlaw and Ronald M. Gould

,

Circuit Judges, and Sam E. H addon

, * * District Judge.

Order

** The Honorable Sam E. Haddon, United States District Judge for the District of Montana, sitting by designation.R ODRIGUEZ V

. J ENNINGS 3

SUMMARY ***

Immigration

The panel directed the parties to file supplemental briefs on the following procedural questions:

(1) whether this Court has jurisdiction over petitioners’ constitutional claims despite

8 U.S.C. § 1252(f)(1), and if not, whether the Court may nonetheless issue declaratory relief for the Rule 23(b)(2) class;

(2) whether a Rule 23(b)(2) class action continues to be the appropriate vehicle for petitioners’ claims in light of Wal

- Mart Stores, Inc. v. Dukes , 564 U.S. 338 (2011);
and

(3) whether a Rule 23(b)(2) class action litigated on common facts is an appropriate way to resolve petitioners’ claims.

The panel directed that the supplemental briefs should also address the following constitutional questions:

(1) whether the Constitution requires that aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond

*** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenienc e of the reader.4 R ODRIGUEZ V

. J ENNINGS

hearings, with the possibility of release into the United States, if detention lasts more than six months;

(2) whether the Constitution requires that criminal or terrorist aliens who are subject to mandatory detention under U.S.C. § 1226(c) must be afforded bond hearings, with the possibility of release, if detention las ts more than six months; and

(3) whether the Constitution requires that, in bond hearings for aliens detained for more than six months under §§ 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear
and convincing evidence that the alien is a flight risk or a danger to the community or rather whether the government’s proof of flight risk or danger could be by only a preponderance of the evidence, whether the length of the alien’s detention must be weighe d in favor of release, and whether new bond hearings must be afforded automatically every six months.

T he panel also set a briefing schedule for amicus briefs.R ODRIGUEZ V

. J ENNINGS 5

COUNSEL

Sarah Stevens Wilson (argued), Theodore William Atkinson, Hans Harris Chen, Alisa Beth Klein, Robert I. Lester, Jaynie R. Lilley, Benjamin C. Mizer, Nicole Prairie, and Erez Reuveni, United States Department of Justice, Washington, D.C., for Respondents

- Appellants/Cross

Appellees.

Ahilan Thevanesan Arulanantham, Michael Kaufman, Peter Jay Eliasberg, ACLU Foundation of So uthern California, Los Angel es, California; Judy Rabinovitz and Michael K.T. Tan, ACLU Immigrants’ Rights Project, New York, New York; Cecillia D. Wang, ACLU Immigrants’ Rights Project, San Francisco, California; Jayashri Srikantiah, Stanford Law
School Mi lls Legal Clinic, Stanford, California; Sean Ashley

Commons and Wen Shen, Sidley Austin LLP, Los Angeles, California; Steven Andrew Ellis, Goodwin Procter LLP, Los Angeles, California, for Petitioners

- Appellees/Cross

Appellants.

Nina Rabin, University of Arizona College of Law, Tucson, Arizona, for Amici Curiae Social Science Researchers and
Professors. James H. Moon, James J. Farrell, Nathan M. Saper, Latham & Watkins LLP, Los Angeles, California, for Amici Curiae
National Associatio n of Criminal Defense Lawyers and the Judge David L. Bazelon Center for Mental Health Law.

Sarah H. Paoletti, University of Pennsylvania Law School Transnational Legal Clinic, Philadelphia, Pennsylvania, for
Amici Curiae International Law Professors and H uman Rights Clinicians and Clinical Programs.6 R ODRIGUEZ V

. J ENNINGS

Holly Stafford Cooper, University of California Davis Law School Immigration Law Clinic, Davis, California, for Amicus Curiae University of California Davis Law School Immigration Law Clinic.

ORDER

The parties are directed to file supplemental briefs addressing the following procedural questions: (1) whether this Court has jurisdiction over petitioners’ constitutional claims despite 8 U.S.C. § 1252(f)(1), and if not, whether the Court may nonetheless issue declaratory relief for the Rule 23(b)(2) class; (2) whether a Rule 23(b)(2) class action continues to be the appropriate vehicle for petitioners’ claims in light of Wal

- Mart Stores, Inc. v. Dukes , 564 U.S. 338 (2011); and (3) whether a Rule 23(b)(2) class action litigated on common facts is an appropriate way to resolve petitioners’ claims.

The supplemental briefs should also address the following constitutional questions: (1) whether the Constitution requires that aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bo nd hearings, with the possibility of release into the United States, if detention lasts more than six months; (2) whether the Constitution requires that criminal or terrorist aliens who are subject to mandatory detention under U.S.C. § 1226(c) must be affo rded bond hearings, with the possibility of release, if detention lasts more than six months; and (3) whether the Constitution requires that, in bond hearings for aliens detained for more than six months under §§ 1225(b), 1226(c), or 1226(a), the
alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alienR ODRIGUEZ V

. J ENNINGS 7

is a flight risk or a danger to the community or rather whether the government’s proof of flight risk or danger could be by only a preponderance of the e vidence, whether the length of the alien’s detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months. Although we acknowledge that some prior briefing may have touched upon these constitut ional issues, as did the supplemental briefing at the Supreme Court, we ask the parties to address these issues anew, given the Supreme Court decision in this appeal, and to address any intervening ch anges in the legal landscape.

The briefing sch edule shal l proceed as follows:

• Petitioners’ supplemental brief shall be due
wi thin thirty days of this Order.

• Respondents’ supplemental answering brief shall be due within thirty days of service of Petitioners’ supplemental brief.

• Amicus briefs may be filed with th e Clerk and served upon counsel within fourteen days of filing of Respondents’ supplemental answering
brief.

• Optional supplemental reply briefs may be filed by Petitioners or Respondents within thirty days of filing of Respondents’ supplemental answering b rief.

The word limits and cover colors for the briefs should correspond to the provisions of Federal Rule of Appellate
Procedure 32. An amicus brief may not exceed thirty pages.8 R ODRIGUEZ V

. J ENNINGS

The Court will schedule oral argument at th e close of briefing.

IT IS SO ORDE RED.