FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALEJANDRO RODRIGUEZ, for himself 

and on behalf of a class of similarlysituated individuals; ABDIRIZAK 

ADEN FARAH, for himself and on 

behalf of a class of similarly-situated 

individuals; JOSE FARIAS CORNEJO;

YUSSUF ABDIKADIR; ABEL PEREZ 

RUELAS,

Petitioners-Appellees/

Cross-Appellants,

and

EFREN OROZCO,

Petitioner,

v.

DAVID JENNINGS,

∗ Field Office 

Director, Los Angeles District, 

Immigration and Customs 

Enforcement; KIRSTJEN M. NIELSEN, 

Secretary, Homeland Security; 

JEFFERSON B. SESSIONS III, 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 predecessors. Fed. R. 

App. P. 43(c)(2).
2 RODRIGUEZ V. JENNINGS

General; WESLEY LEE, Assistant 

Field Office Director, Immigration 

and Customs Enforcement; RODNEY 

PENNER, Captain, Mira Loma 

Detention Center; SANDRA 

HUTCHENS, Sheriff of Orange 

County; NGUYEN, Officer, Officerin-Charge, Theo Lacy Facility; 

DAVIS NIGHSWONGER, Captain, 

Commander, Theo Lacy Facility; 

MIKE KREUGER, Captain, Operations 

Manager, James A. Musick Facility; 

ARTHUR EDWARDS, Officer-inCharge, Santa Ana City Jail; 

RUSSELL DAVIS, Jail Administrator, 

Santa Ana City Jail; JAMES 

MCHENRY, 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. Haddon,

** District Judge.

Order

 ** The Honorable Sam E. Haddon, United States District Judge for 

the District of Montana, sitting by designation.
RODRIGUEZ V. JENNINGS 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 convenience of the reader.
4 RODRIGUEZ V. JENNINGS

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 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 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 

weighed in favor of release, and whether new 

bond hearings must be afforded 

automatically every six months.

The panel also set a briefing schedule for amicus briefs.
RODRIGUEZ V. JENNINGS 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/CrossAppellees.

Ahilan Thevanesan Arulanantham, Michael Kaufman, Peter 

Jay Eliasberg, ACLU Foundation of Southern California, 

Los Angeles, 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 Mills 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/CrossAppellants.

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 Association of Criminal Defense Lawyers and the 

Judge David L. Bazelon Center for Mental Health Law.

Sarah H. Paoletti, University of Pennsylvania Law School 

Transnational Legal Clinic, Philadelphia, Pennsylvania, for 

Amici Curiae International Law Professors and Human 

Rights Clinicians and Clinical Programs.
6 RODRIGUEZ V. JENNINGS

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 bond 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 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 alien 
RODRIGUEZ V. JENNINGS 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 evidence, 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 constitutional 

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 changes in the legal landscape.

The briefing schedule shall proceed as follows:

• Petitioners’ supplemental brief shall be due 

within 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 the 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 brief.

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 RODRIGUEZ V. JENNINGS

The Court will schedule oral argument at the close of 

briefing.

IT IS SO ORDERED.