FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALEJANDRO RODRIGUEZ, 

Petitioner-Appellant,

v.

JAMES HAYES, Immigration and

Customs Enforcement Los Angeles

District Field Officer Director;

GEORGE MOLINAR, Chief of

Detention and Removal No. 08-56156

Operations, San Pedro Detention D.C. No.

Facility; JANET NAPOLITANO,*  2:07-CV-03239-

Secretary, Department of TJH-RNB

Homeland Security; ERIC H. OPINION HOLDER Jr., Attorney General;

PAUL WALTERS; LEE BACA, Sheriff

of Los Angeles County; SAMMY

JONES, Chief of the Custody

Operations Division of the Los

Angeles County Sheriff’s

Department,

Respondents-Appellees. 

Appeal from the United States District Court

for the Central District of California

Terry J. Hatter, District Judge, Presiding

Argued and Submitted

May 5, 2009—Pasadena, California

*Janet Napolitano is substituted for her predecessor, Michael Chertoff,

as Secretary of the Department of Homeland Security, pursuant to Fed. R.

App. P.43(c)(2). 

11383
Filed August 20, 2009

Before: Betty B. Fletcher, Raymond C. Fisher and

Ronald M. Gould, Circuit Judges.

Opinion by Judge B. Fletcher

11384 RODRIGUEZ v. HAYES
COUNSEL

Peter J. Eliasberg and Ahilan T. Arulanantham (argued),

American Civil Liberties Union Foundation of Southern California, Los Angeles, California; Judy Rabinowitz and Cecillia

D. Wang, American Civil Liberties Foundation Immigrants’

RODRIGUEZ v. HAYES 11387
Rights Project, New York, New York, and San Francisco,

California; Jayashri Srikantiah, Stanford Law School Immigrants’ Rights Clinic, Stanford, California; and Steven A.

Ellis, William Tran, and Brian K. Washington, Sidley Austin

LLP, Los Angeles, California, for the petitioner-appellant.

Gregory G. Katsas, Assistant Attorney General, Civil Division; David J. Kline, Director, District Court Section; Gjon

Juncaj (argued), Senior Litigation Counsel; and Nancy N.

Safavi, Trial Attorney, Office of Immigration Litigation,

United States Department of Justice, Washington, DC, for the

respondents-appellees.

OPINION

B. FLETCHER, Senior Circuit Judge:

Petitioner Alejandro Rodriguez (“Petitioner”) seeks a writ

of habeas corpus on behalf of himself and a class of aliens

detained in the Central District of California for more than six

months without a bond hearing while engaged in immigration

proceedings. Petitioner requests injunctive and declaratory

relief providing individual bond hearings to all members of

the class. Petitioner appeals the district court denial without

explanation of Petitioner’s request to certify the proposed

class. Respondents, seeking to fill the gap left by the district

court’s conclusory order, assert that the district court’s denial

was justified on any of the following grounds: 1) the proposed

class is undefined; 2) the claim of Petitioner is moot; 3) the

claims of the proposed class are unripe; 4) class relief is

barred by 8 U.S.C. § 1252(f); 5) the court lacks jurisdiction

over the claims of the proposed class in light of the holding

in Rumsfeld v. Padilla; and 6) the proposed class does not

meet the requirements of Federal Rule of Civil Procedure 23.

We have jurisdiction over this interlocutory appeal pursuant

to 28 U.S.C. § 1292. We conclude that none of the grounds

11388 RODRIGUEZ v. HAYES
offered by Respondents justify denial of class certification

and that the class meets the requirements of Rule 23; accordingly, we reverse.

I. Background

Petitioner is a citizen of Mexico who came to the United

States at the age of one in 1979. He became a lawful permanent resident eight years later. Petitioner was arrested in April

2004, charged with being removable based on past drug and

theft convictions, and detained thereafter by the Department

of Homeland Security. Petitioner contested his removability

before an immigration judge (“IJ”), who determined he was

subject to mandatory removal based on either of his past

offenses. The Board of Immigration Appeals (“BIA”)

reversed the IJ’s finding that Petitioner was removable on the

basis of his drug offense, but upheld the IJ’s finding that his

theft conviction was an aggravated felony requiring removal.

Petitioner appealed the BIA’s finding that his theft offense

constituted an aggravated felony and we stayed his removal

pending our decision. The appeal has been held in abeyance

pending determination of a separate appeal to the United

States Supreme Court. During his detention Petitioner

received three custody reviews from Immigration and Customs Enforcement that determined to continue his detention,

the latest occurring in September 2006. In conjunction with

these reviews, Petitioner received no hearing or notice

explaining ICE’s decision beyond mention that his Ninth Circuit appeal was pending.1

On May 16, 2007, Petitioner filed the current Petition for

Writ of Habeas Corpus against the secretaries of the Departments of Homeland Security and Justice, the field office

director in the Central District of California for Immigration

1Petitioner also was at one point deemed eligible for release on a bond

of $15,000, which Petitioner could not pay. This bond order was later

revoked after the BIA determined his appeal.

RODRIGUEZ v. HAYES 11389
and Customs Enforcement (“ICE”), and the head officials of

various alien detention facilities in the district

(“Respondents”). Petitioner seeks relief on behalf of himself

and a class of aliens in the Central District of California “who

1) are or will be detained for longer than six months pursuant

to one of the general immigration detention statutes pending

completion of removal proceedings, including judicial review,

and 2) have not been afforded a hearing to determine whether

their prolonged detention is justified.” (Pet. for Writ of

Habeas Corpus ¶ 39.) Petitioner asserts that the detention of

the members of the proposed class is not authorized by statute, and, in the alternative, that if their detention is authorized

it violates the Fifth Amendment’s guarantee of due process.

Petitioner’s requested relief includes the certification of the

proposed class, appointment of Petitioner’s counsel as class

counsel, and injunctive and declaratory relief providing all

members of the class “constitutionally-adequate individual

hearings before an immigration judge . . . , at which Respondents will bear the burden to prove by clear and convincing

evidence that Petitioner and each class member is a sufficient

danger or risk of flight to justify his detention in light of how

long he has been detained already and the likelihood of his

case being finally resolved in favor of the government in the

reasonably foreseeable future.” (Pet. for Writ of Habeas Corpus 21.) 

On June 25, 2007 Petitioner filed a Motion for Class Certification, which was opposed by Respondents on the same

grounds now raised in this appeal. ICE released Petitioner

from detention under an order of supervision approximately

a month later pursuant to 8 C.F.R. § 241.4. Respondents subsequently filed a motion to dismiss Petitioner’s action on

mootness grounds in light of his release.

The district court denied Petitioner’s Motion for Class Certification and the Respondents’ Motion to Dismiss on March

19, 2008 in a two-sentence order. Petitioner filed the current

appeal of the denial of class certification on July 17, 2008.

11390 RODRIGUEZ v. HAYES
II. Standard of Review

We review a district court’s decision to deny class certification for abuse of discretion. Zinser v. Accufix Research Inst.,

253 F.3d 1180, 1186 (9th Cir. 2001), amended, 273 F.3d 1266

(9th Cir. 2001). However, a district court’s decision as to

class certification is not afforded the “ ‘traditional deference’ ” when it is not “supported by sufficient findings.” Molski v. Gleich, 318 F.3d 937, 946 (9th Cir. 2003) (quoting

Local Joint Executive Bd. of Culinary/Bartender Trust Fund

v. Las Vegas Sands, Inc., 244 F.3d 1152, 1161 (9th Cir.

2001)). Here, where the district court made no findings whatsoever in support of its denial of class certification, but the

record before us is sufficiently developed, “we may evaluate

for ourselves” whether the class should be certified. Las

Vegas Sands, 244 F.3d at 1161.2 Respondents contend that we

should afford the full deference normally accorded the district

court’s order on the basis that its findings and reasoning can

be derived implicitly from Respondents’ opposition to class

certification filed below. Respondents, however, offered multiple reasons for denying class certification. We would be

engaging in mere guesswork were we to assume the district

court relied on any particular reason or reasons. We, therefore, follow Las Vegas Sands in reviewing the district court’s

determination.

III. Definition of Proposed Class

[1] Petitioner seeks to certify a class of detainees who are

held pursuant to what Petitioner labels the “general immigration statutes.” Respondents assert that Petitioner’s use of the

phrase “general immigration statutes” creates an undefined

class. While not a model of clarity, Petitioner’s habeas corpus

petition and request for class certification together indicate

2We do not opine on the appropriate course for the reviewing court

when a district court makes some, but insufficient, findings, justifying its

class certification determination, as that is not the posture we face here.

RODRIGUEZ v. HAYES 11391
that “general immigration statutes” refers narrowly to 8

U.S.C. § 1226, 8 U.S.C. § 1225(b), and 8 U.S.C. § 1231(a).

Whether 8 U.S.C. § 1182(d)(5)(A) is also included in the definition is ambiguous, as it is only referenced in Petitioner’s

subsequent filings. This is of no practical importance, however, as Section 1182(d)(5)(A) merely provides for discretionary parole of detainees, which, upon revocation, returns the

detainees to the form of legal detention they were in prior to

parole. 8 U.S.C. § 1182(d)(5); see Clark v. Martinez, 543 U.S.

371, 385-86 (2005) (discussing effect of Section 1182(d)(5)

on detention status). Hence, we conclude Petitioner’s proposed class is adequately defined for certification.

IV. Immigration Detention Statutes

The three immigration detention statutes implicated by the

proposed class govern detention of aliens at different stages

of the admission and removal process. 8 U.S.C. § 1225(b)

provides for discretionary detention of aliens pending a determination of admissibility.3

 8 U.S.C. § 1226 provides for both

discretionary detention generally and mandatory detention for

certain narrow categories of aliens pending a determination of

their removability.4 8 U.S.C. § 1231(a) provides for manda3

8 U.S.C. § 1225(b)(1)(B)(ii) provides: 

If the [asylum] officer determines at the time of the interview

[upon arrival in the United States] that an alien has a credible fear

of persecution . . . , the alien shall be detained for further consideration of the application for asylum. 

8 U.S.C. § 1225(b)(2)(A) provides: 

[I]n the case of an alien who is an applicant for admission, if the

examining immigration officer determines that an alien seeking

admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section

1229a of this title. 

4

8 U.S.C. § 1226(a) provides: 

On a warrant issued by the Attorney General, an alien may be

arrested and detained pending a decision on whether the alien is

to be removed from the United States. 

11392 RODRIGUEZ v. HAYES
tory detention of aliens ordered removed during the 90 day

removal period and discretionary detention after the end of

the removal period.5 Petitioner’s request for relief raises the

8 U.S.C. § 1226(c) provides: 

The Attorney General shall take into custody any alien who . . .

is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title, . . . is deportable by reason

of having committed any offense covered in section

1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title, . . . is

deportable under section 1227(a)(2)(A)(i) of this title on the basis

of an offense for which the alien has been sentence [sic] to a term

of imprisonment of at least 1 year, or . . . is inadmissible under

section 1182(a)(3)(B) of this title or deportable under section

1227(a)(4)(B) of this title, when the alien is released, without

regard to whether the alien is released on parole, supervised

release, or probation, and without regard to whether the alien may

be arrested or imprisoned again for the same offense. 

5

8 U.S.C. § 1231(a)(2) provides: 

During the removal period, the Attorney General shall detain the

alien. Under no circumstance during the removal period shall the

Attorney General release an alien who has been found inadmissible under section 1182(a)(2) or 1182(a)(3)(B) of this title or

deportable under section 1227(a)(2) or 1227(a)(4)(B) of this title.

8 U.S.C. § 1231(a)(6) provides: 

An alien ordered removed who is inadmissible under section

1182 of this title, removable under section 1227(a)(1)(C),

1227(a)(2), or 1227(a)(4) of this title or who has been determined

by the Attorney General to be a risk to the community or unlikely

to comply with the order of removal, may be detained beyond the

removal period and, if released, shall be subject to the terms of

supervision in paragraph (3). 

8 U.S.C. § 1231(a)(1)(C) provides: 

The removal period shall be extended beyond a period of 90 days

and the alien may remain in detention during such extended

period if the alien fails or refuses to make timely application in

good faith for travel or other documents necessary to the alien’s

departure or conspires or acts to prevent the alien’s removal subject to an order of removal. 

RODRIGUEZ v. HAYES 11393
question of whether prolonged detention without a bond hearing is authorized under any of these statutes and, in the alternative, even if it is authorized, whether such detention is

constitutional. These are not new questions for this court. In

a series of decisions, the Supreme Court and this court have

grappled in piece-meal fashion with whether the various

immigration detention statutes may authorize indefinite or

prolonged detention of detainees and, if so, may do so without

providing a bond hearing. Each decision has undertaken interpretation of the immigration detention statutes against the

backdrop of the serious constitutional issues raised by indefinite or prolonged detention. We review these decisions to provide the necessary context to aid in determining the

appropriateness of class relief.

A. Discretionary Detention

In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme

Court first took up the question of whether an immigration

discretionary detention statute authorized indefinite or prolonged detention. The alien there was detained pursuant to

Section 1231(a)(6), authorizing discretionary detention of

aliens after the removal period. The Court held that a “[a] statute permitting indefinite detention of an alien would raise a

serious constitutional problem.” Id. at 690. The Court found

Section 1231(a)(6) ambiguous as to whether it authorized

indefinite detention and, therefore, “interpreting the statute to

avoid a serious constitutional threat, . . . conclude[d] that,

once removal is no longer reasonably foreseeable, continued

detention is no longer authorized by statute.” Id. at 699. The

Court determined that for six months following the beginning

of the removal period an alien’s detention was presumptively

authorized. Id. at 701. However, after that period, “once the

alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable

future, the Government must respond with evidence sufficient

to rebut that showing” in order to continue to detain the alien.

Id. Though Zadvydas dealt only with aliens detained pursuant

11394 RODRIGUEZ v. HAYES
to Section 1231(a)(6) who were removable under Section

1227(a)(1)(C), 1227(a)(2) or 1227(a)(4), the Supreme Court

subsequently extended its holding to the other two categories

of aliens governed by the statute: aliens inadmissible under

Section 1182 and aliens determined by the Secretary of

Homeland Security to be a risk to the community or a flight

risk. See Clark, 543 U.S. at 378; see also Xi v. INS, 298 F.3d

832, 834 (9th Cir. 2002). We have further extended the Zadvydas framework to discretionary detention pursuant to Section 1225(b) and 1226(a), finding that indefinite detention

under these statutes poses the same constitutional concerns

present in Zadvydas. See Prieto-Romero v. Clark, 534 F.3d

1053, 1062-63 (9th Cir. 2008); Nadarajah v. Gonzales, 443

F.3d 1069, 1078-80 (9th Cir. 2006).

Having applied the Zadvydas framework to determine

when prolonged discretionary detention is authorized, we

have also begun to determine what sort of bond hearing, if

any, is needed to justify prolonged discretionary detention for

individual petitioners. As we stated in Prieto-Romero, even

when detention is authorized by statute, “due process requires

‘adequate procedural protections’ to ensure that the government’s asserted justification for physical confinement ‘outweighs the individual’s constitutionally protected interest in

avoiding physical restraint.’ ” 534 F.3d at 1065 (quoting Zadvydas, 533 U.S. at 690-91). In Casas-Castrillon v. Dep’t of

Homeland Sec., 535 F.3d 942, 949-52 (9th Cir. 2008), we

determined that Section 1226(a) authorized detention of the

petitioner at issue and proceeded to discuss what bond hearing, if any, he was entitled to. We concluded that Section

1226(a) provided authority for the Attorney General to release

an alien detained under the section on bond following a bond

hearing. Id. “Because the prolonged detention of an alien

without an individualized determination of his dangerousness

or flight risk would be ‘constitutionally doubtful,’ ” we further concluded “that § 1226(a) must be construed as requiring

the Attorney General to provide the alien with such a hearing.” Id. (emphasis omitted). Hence, we held that an alien

RODRIGUEZ v. HAYES 11395
detained under Section 1226(a) “is entitled to release on bond

unless the government establishes that he is a flight risk or

will be a danger to the community.” Id. at 951 (internal quotation marks omitted); see also Flores-Torres v. Mukasey, 548

F.3d 708, 709 n.2 (9th Cir. 2008); Prieto-Romero, 534 F.3d

at 1065-66 (finding three bond hearings for Section 1226(a)

detainee satisfied due process); Tijani v. Willis, 430 F.3d

1241, 1242 (9th Cir. 2005) (finding alien detained for nearly

three years could not be mandatorily detained under Section

1226(c) and ordering bond hearing, impliedly finding alien

was detained under Section 1226(a)).

In Diouf v. Mukasey, 542 F.3d 1222 (9th Cir. 2008), by

contrast, we refused to reach the issue of whether a bond hearing was required under Section 1231(a)(6). We held the

detention of the petitioner at issue beyond the six month

period was authorized under Section 1231(a)(6). Id. at 1233.

We then turned to the issue of what bond hearing, if any, the

petitioner was entitled to for determining the necessity of his

detention. We concluded that while release on bond was

clearly authorized by Section 1231(a)(6) and its implementing

regulations, it was unclear whether a bond hearing was

required under the statute for petitioner and what burden if

any should be placed on the government at such a hearing. Id.

at 1234-35. Because the district court had not had an opportunity to reach this question, we declined to reach it in the first

instance and remanded. Id. at 1235. However, in doing so we

noted that the issue was “somewhat similar” to that in CasasCastrillon, strongly implying that the district court’s determination should at least be informed by its reasoning. Diouf, 542

F.3d at 1234-35.

B. Mandatory Detention

We have also dealt with indefinite or prolonged detention

under immigration mandatory detention provisions, including

Sections 1226(c), 1231(a)(2), and 1231(a)(1)(c). Section

1226(c) provides for mandatory detention of criminal aliens

11396 RODRIGUEZ v. HAYES
for expedited removal. The Supreme Court has held that

detention pursuant to Section 1226(c) does not raise any due

process concerns. Demore v. Kim, 538 U.S. 510, 531 (2003).

However, in upholding Section 1226(c), the Court interpreted

it to authorize mandatory detention only for the “limited

period of [the alien’s] removal proceedings,” which the Court

estimated “lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in

the minority of cases in which the alien chooses to appeal” his

removal order to the BIA. Id. at 530-31. We have subsequently clarified that, in order to avoid the serious constitutional questions raised by indefinite mandatory detention,

detention of an alien beyond an expedited period ceases to be

mandatory under Section 1226(c) and instead becomes discretionary under Section 1226(a). See Casas-Castrillon, 535 F.3d

at 951; Tijani, 430 F.3d at 1242. 

We have additionally held that detention pursuant to Section 1231(a)(2) poses no due process issues, regardless of

whether removal of the detained alien is foreseeable, because

the statute authorizes detention for only the ninety-day

removal period and therefore does not create any danger of

unconstitutionally indefinite detention. Khotesouvan v.

Morones, 386 F.3d 1298, 1299-1301 (9th Cir. 2004). We have

taken the same view when an alien is detained pursuant to the

related provision of 8 U.S.C. § 1231(a)(1)(C), which allows

the removal period to be extended and detention to continue

beyond ninety days if an alien conspires or acts to prevent his

own removal. Pelich v. INS, 329 F.3d 1057, 1058-61 (9th Cir.

2003). The court, while “expressly declin[ing] to endorse or

reject any inferred Zadvydas-inspired limitation to

§ 1231(a)(1)(C)” found that, in any case, “an alien cannot

assert a viable constitutional claim when his indefinite detention is due to his failure to cooperate with the INS’s efforts

to remove him.” Id. at 1060-61; see also Lema v. INS, 341

F.3d 853, 857 (9th Cir. 2003) (“We conclude that 8 U.S.C.

§ 1231(a)(1)(C) . . . authorizes the INS’s continued detention

of a removable alien so long as the alien fails to cooperate

RODRIGUEZ v. HAYES 11397
fully and honestly with officials to obtain travel documents.”)

Key to this determination was the court’s view that “[t]he risk

of indefinite detention that motivated the Supreme Court’s

statutory interpretation in Zadvydas does not exist when an

alien is the cause of his own detention.” Pelich, 329 F.3d at

1060.

V. Alleged Bars to Class Relief

Petitioner seeks to end our piece-meal rulings in habeas

actions on the necessity of bond hearings to justify prolonged

detention in the immigration context and have the courts

address the issue on a class-wide basis across the various general immigration detention statutes. While “ordinarily disfavored,” the Ninth Circuit has recognized that class actions

may be brought pursuant to habeas corpus. Cox v. McCarthy,

829 F.2d 800, 804 (9th Cir. 1987); see also Mead v. Parker,

464 F.2d 1108, 1112-13 (9th Cir. 1972) (finding habeas relief

to be appropriate in cases “where the relief sought can be of

immediate benefit to a large and amorphous group”). Respondents assert, nonetheless, that various constitutional, statutory,

and procedural bars to class relief exist in this case.

A. Mootness

[2] Respondents initially challenge class certification on the

ground that Petitioner’s individual claim has been rendered

moot by his release from detention. In fact, mootness of the

Petitioner’s claim is not a basis for denial of class certification, but rather is a basis for dismissal of Petitioner’s action.

Because the district court did not dismiss Petitioner’s action,

but only denied class certification, we see no reason to conclude it based its denial on a finding of mootness. If it had

made such a finding, it would have been in error. Petitioner

was released pursuant to 8 C.F.R. § 241.4, which provides

that “[t]he Executive Associate Commissioner shall have

authority, in the exercise of discretion, to revoke release and

return to Service custody an alien previously approved for

11398 RODRIGUEZ v. HAYES
release under the procedures in this section.” 8 C.F.R. § 241.4

(l)(2). While the regulation provides the detainee some opportunity to respond to the reasons for revocation, it provides no

other procedural and no meaningful substantive limit on this

exercise of discretion as it allows revocation “when, in the

opinion of the revoking official . . . [t]he purposes of release

have been served . . . [or] [t]he conduct of the alien, or any

other circumstance, indicates that release would no longer be

appropriate.” Id. § 241.4(l)(2) (i), (iv) (emphasis added). This

places Petitioner in a position analogous to the petitioner challenging his prolonged detention in Clark v. Martinez, who

was released from detention pursuant to a discretionary parole

provision while his suit was ongoing. The Supreme Court

found his case was not mooted:

If Benitez is correct, as his suit contends, that the

Government lacks the authority to continue to detain

him, he would have to be released, and could not be

taken back into custody unless he violated the conditions of release . . . or his detention became necessary to effectuate his removal . . . . His current

release, however, is not only limited to one year, but

subject to the Secretary’s discretionary authority to

terminate. . . . Thus, Benitez continue[s] to have a

personal stake in the outcome of his petition.

Clark, 543 U.S. at 376 n.3 (citations and internal quotation

marks omitted) (emphasis added). Petitioner asserts that the

government cannot detain him unless it can demonstrate by

clear and convincing evidence at a hearing before an immigration judge that he is a sufficient danger or flight risk to justify his detention. If Petitioner is successful in his petition he

would be entitled to such a hearing where the government

would need to meet its burden or offer him a nondiscretionary release until such time as it can make the requisite showing or has an independent statutory basis to detain

him. This would place Petitioner in a far different situation

from his current one, released pursuant to the government’s

RODRIGUEZ v. HAYES 11399
independent determination but subject to revocation on the

government’s discretion without hearing before a neutral

decision-maker and without burden of justification on the

government. Hence, like the petitioner in Clark, Petitioner

here retains a personal stake in the determination of his claim

such that it is not moot. 

[3] We further note that Petitioner’s current release is subject to a number of restrictions, including the requirements

that he remain within 50 feet of his home from 7:00 p.m. to

7:00 a.m. every night and wear an ankle monitoring device at

all times. Petitioner proposes that he receive a bond hearing

to determine not only whether he should be released, but also

under what conditions such release would take place. The

strict limitations on Petitioner’s freedom, therefore, provide

an additional reason why his case presents a live controversy.

Cf. Carafas v. LaVallee, 391 U.S. 234, 238 (1968) (holding

that when habeas petitioner was released from custody, but

his felony conviction prevented him from engaging in certain

businesses, voting, and serving on juries, underlying habeas

case still presented live controversy).

B. Ripeness

[4] Respondents additionally argue that class certification

must be denied because the claims of the proposed class are

not all yet ripe.6“[A] claim is not ripe for adjudication if it

rests upon contingent future events that may not occur as

6Respondents assert that Petitioner waived any challenge to their ripeness argument by not raising it in his opening brief. This argument is

groundless. We have previously held that the failure of a party in its opening brief to challenge an alternate ground for a district court’s ruling given

by the district court waives that challenge. See United States v. Kama, 394

F.3d 1236, 1238 (9th Cir. 2005); MacKay v. Pfeil, 827 F.2d 540, 542 n.2

(9th Cir. 1987). Here, the district court did not cite ripeness or any other

rationale for its denial of certification. Petitioner does not waive a challenge to any ground for denial of certification in its opening brief on

appeal that was not relied on in the district court’s order. 

11400 RODRIGUEZ v. HAYES
anticipated, or indeed may not occur at all.” Bova v. City of

Medford, 564 F.3d 1093, 1096 (9th Cir. 2009) (internal quotation marks omitted). Respondents first argue that the claims

of proposed class members detained pursuant to Section

1226(a) are unripe because there is no indication yet that the

government is refusing to comply with Casas-Castrillon’s

ruling. This argument rests on a misunderstanding of what

constitutes membership in the proposed class. Members of the

proposed class are by definition aliens who have been

detained without a bond hearing. If an alien who would otherwise be a member of the class receives a bond hearing pursuant to Casas-Castrillon or any other ruling they would cease

to be a member of the class. Hence, the government’s full

compliance with Casas-Castrillon could reduce the size of the

class, but it could not render the claims of class members

unripe. Respondents additionally argue that the proposed class

suffers from ripeness issues because it references future class

members. The inclusion of future class members in a class is

not itself unusual or objectionable. See, e.g., Probe v. State

Teachers’ Ret. Sys., 780 F.2d 776, 780 (9th Cir. 1986);

LaDuke v. Nelson, 762 F.2d 1318, 1321-26 (9th Cir. 1985).

When the future persons referenced become members of the

class, their claims will necessarily be ripe. Hence, we conclude that the requirement of ripeness raises no bar to certification of the class.

C. 8 U.S.C. § 1252(f)

Respondents assert that 8 U.S.C. § 1252(f)(1), Section

306(a) of the Illegal Immigration Reform and Immigrant

Responsibility Act (“IIRIRA”), bars class certification in this

case. Section 1252(f)(1) provides:

Regardless of the nature of the action or claim or of

the identity of the party or parties bringing the

action, no court (other than the Supreme Court) shall

have jurisdiction or authority to enjoin or restrain the

operation of the provisions of part IV of this subRODRIGUEZ v. HAYES 11401
chapter, as amended by [IIRIRA], other than with

respect to the application of such provisions to an

individual alien against whom proceedings under

such part have been initiated.

8 U.S.C. § 1252(f)(1). Part IV includes 8 U.S.C. §§ 1221-

1231. See Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139,

1150 (9th Cir. 2000) (en banc). Respondents argue that Section 1252(f) bars the proposed class from receiving any

injunctive relief, thereby requiring denial of class certification. 

[5] Respondents are doubly mistaken. Section 1252(f) cannot bar certification of the class unless it bars the proposed

class from receiving any class relief. Respondents do not

argue, and it is not the case, that Section 1252(f) bars Petitioner from receiving declaratory relief on behalf of the class.

The Supreme Court has recognized as much: “By its plain

terms, and even by its title, [Section 1252(f)] is nothing more

or less than a limit on injunctive relief. It prohibits federal

courts from granting classwide injunctive relief against the

operation of §§ 1221-1231, but specifies that this ban does not

extend to individual cases.” Reno v. Am.-Arab AntiDiscrimination Comm., 525 U.S. 471, 481-482 (9th Cir.

1999). Hence, for this reason alone, Section 1252(f)(1) did not

provide the district court with a basis to deny class certification.

[6] In addition, we conclude that Section 1252(f) does not

bar injunctive relief for the proposed class. Section 1252(f)

prohibits only injunction of “the operation of” the detention

statutes, not injunction of a violation of the statutes. This is

a distinction we have made before in a decision vacated on

unrelated grounds. See Ali v. Ashcroft, 346 F.3d 873, 886 (9th

Cir. 2003), vacated on unrelated grounds sub nom. Ali v.

Gonzales, 421 F.3d 795 (9th Cir. 2005). We held there: 

“[Section] 1252(f)(1) limits the district court’s

authority to enjoin the INS from carrying out legiti11402 RODRIGUEZ v. HAYES
mate removal orders. Where, however, a petitioner

seeks to enjoin conduct that allegedly is not even

authorized by the statute, the court is not enjoining

the operation of part IV of subchapter II, and §

1252(f)(1) therefore is not implicated.”

Id. Analogously, Petitioner here does not seek to enjoin the

operation of the immigration detention statutes, but to enjoin

conduct it asserts is not authorized by the statutes. Petitioner

argues only that the immigration detention statutes, to the

extent they cannot be interpreted as requiring provision of a

bond hearing, must be enjoined as unconstitutional. However,

as this latter argument for relief may never be reached, it cannot be a basis for denial of class certification.

[7] Respondents assert that we should not adopt the reasoning of the vacated opinion in Ali, but instead follow our decision in Catholic Soc. Servs., Inc. v. INS, 182 F.3d 1053 (9th

Cir. 1999), aff’d in part and rev’d in part en banc, 232 F.3d

1139 (9th Cir. 2000). There we found that injunctive relief for

a class asserting that the INS misinterpreted legalization provisions of the Immigration Control and Reform Act was

barred by Section 1252(f). We stated:

[R]egardless of the fact that the injunction provides

relief for a harm ostensibly created by the INS’ misinterpretation of the legalization provisions of part

V, insofar as it would interfere with the operation of

part IV, the injunction here is contrary to the plain

language of § 1252(f) and the district court lacked

the jurisdiction to enter it.

Id. at 1062. We subsequently reversed this conclusion on en

banc review, however, on the basis that the ordered injunction

was issued under part V of the subchapter, rather than part IV

and, therefore, not within the terms of Section 1252(f). Catholic Soc. Servs., 232 F.3d at 1150. Were we nonetheless to

accept the panel’s reasoning as persuasive, it would not conRODRIGUEZ v. HAYES 11403
trol here. The requested injunction at issue does not seek to

enjoin the operation of Part IV provisions to relieve harm

caused by misinterpretation of other statutory provisions, but

to enjoin conduct alleged not to be authorized by the proper

operation of Part IV provisions. The sound reasoning of Ali

persuades that this is not barred by the plain terms of Section

1252(f).7

D. Rumsfeld v. Padilla

[8] Finally, Respondents claim that the Supreme Court’s

holding in Rumsfeld v. Padilla, 542 U.S. 426 (2004), renders

class action relief inappropriate in this case. In Padilla, the

Supreme Court stated that “longstanding practice confirms

that in habeas challenges to present physical confinement—‘core challenges’—the default rule is that the proper

respondent is the warden of the facility where the prisoner is

being held, not the Attorney General or some other remote

supervisory official.” Id. at 435. Respondents argue that this

statement mandates that the proper respondents for members

of the proposed class are the various wardens overseeing their

individual custody. Respondents assert that this renders class

relief impossible because, “at a jurisdictional minimum,” all

proposed class members must be under the immediate supervision of the same custodian. (Resp’ts Answering Br. 16.)

Respondents fail to recognize that Padilla specifically

reserved the question of whether the proper respondent in

habeas challenges brought by “an alien detained pending

deportation” would be the immediate custodian of the alien.

Padilla, 542 U.S. at 436 n.8. We need not reach it because,

even were the Supreme Court’s statement in Padilla applicable here, Respondents’ argument is baseless. Respondents cite

7Petitioner additionally argues that Section 1252(f) properly interpreted

does not apply to claims for habeas relief at all. We do not reach this argument at this time, as it is sufficient to find that the district court may in

some scenario grant the proposed class some of the relief sought to determine that the class may be certified. 

11404 RODRIGUEZ v. HAYES
no authority or rationale for the proposition that we do not

have jurisdiction to provide class relief in a habeas corpus

action that meets the requirements for certification merely

because class members are in the immediate custody of different facilities. Such actions have been maintained previously

against single and multiple respondents. See Schall v. Martin,

467 U.S. 253 (1984) (class of juveniles sought habeas corpus

relief from pretrial detention under state law); U.S. ex rel.

Sero v. Preiser, 506 F.2d 1115 (2d. Cir. 1974) (class of young

adults sought habeas corpus relief from serving terms in state

reformatories). Regardless of who the proper respondents for

the class are, we conclude certification of the class will not

pose any jurisdictional concerns.

VI. Rule 23

[9] In addition to raising various bars to class relief,

Respondents assert that the proposed class fails to comply

with the requirements of Federal Rule of Civil Procedure 23,

governing class certification. Rule 23(a) provides that a class

may be certified only if:

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

members is impracticable; 

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

the class; 

(3) the claims or defenses of the representative

parties are typical of the claims or defenses of the

class; and 

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

Fed. R. Civ. P. 23(a). The party seeking certification must

meet all of these requirements and Rule 23(b) further provides

that for certification the class must fall into one of three cateRODRIGUEZ v. HAYES 11405
gories. Zinser, 253 F.3d at 1186 (“[T]he party seeking class

certification . . . bears the burden of demonstrating that she

has met each of the four requirements of Rule 23(a) and at

least one of the requirements of Rule 23(b).”) Petitioner seeks

certification under the category provided for in Rule 23(b)(2),

which requires that “the party opposing the class has acted or

refused to act on grounds that apply generally to the class, so

that final injunctive relief or corresponding declaratory relief

is appropriate respecting the class as a whole.” Fed. R. Civ.

P. 23(b)(2). Respondents challenge the proposed class’s compliance with all aspects of Rule 23 except the numerosity

requirement, which Respondents concede is met. We discuss

the proposed class’s compliance with the remaining requirements individually.

A. Commonality

The commonality requirement “serves chiefly two purposes: (1) ensuring that absentee members are fairly and adequately represented; and (2) ensuring practical and efficient

case management.” Walters v. Reno, 145 F.3d 1032, 1045

(9th Cir. 1998). We have construed this requirement “permissively.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th

Cir. 1998). It is not necessary that “[a]ll questions of fact and

law . . . be common to satisfy the rule.” Id. We have found

“[t]he existence of shared legal issues with divergent factual

predicates is sufficient, as is a common core of salient facts

coupled with disparate legal remedies within the class.” Id.;

see, e.g., Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir.

1997) (“The commonality requirement is met if plaintiffs’

grievances share a common question of law or of fact.”);

Baby Neal for & by Kanter v. Casey, 43 F.3d 48, 56 (3d. Cir.

1994) (“The commonality requirement will be satisfied if the

named plaintiffs share at least one question of fact or law with

the grievances of the prospective class.”). Nor does “common” as used in Rule 23(a)(1) mean “complete congruence.”

In re First Alliance Mortg. Co., 471 F.3d 977, 990 (9th Cir.

2006). We find the claims of the class share sufficiently com11406 RODRIGUEZ v. HAYES
mon questions of law to meet the requirement of Rule

23(a)(1).

[10] Respondents challenge the commonality of class members’ claims on the ground that class members suffer detention for different reasons and under the authority of different

statutes. Respondents assert that, as a result, the question of

whether individual class members’ detention may be continued without a bond hearing turns on divergent questions of

statutory interpretation and consideration of different factual

circumstances. Respondents are undoubtedly correct that

members of the proposed class do not share every fact in

common or completely identical legal issues. This is not

required by Rule 23(a)(1). Instead, the commonality requirements asks us to look only for some shared legal issue or a

common core of facts. This the proposed members of the

class certainly have. In each case in which we have interpreted the scope of various statutes providing for both discretionary and mandatory detention in the immigration context,

our determinations have been guided, if not controlled, by the

question of whether indefinite or prolonged detention generating serious constitutional concerns is present. A form of that

question is posed here: may an individual be detained for over

six months without a bond hearing under a statute that does

not explicitly authorize detention for longer than that time

without generating serious constitutional concerns? This question will be posed by the detention of every member of the

class and their entitlement to a bond hearing will largely be

determined by its answer. See Casas-Castrillon, 535 F.3d at

951 (“Because the prolonged detention of an alien without an

individualized determination of his dangerousness or flight

risk would be ‘constitutionally doubtful,’ we hold that

§ 1226(a) must be construed as requiring the Attorney General to provide the alien with such a hearing.” (emphasis omitted)); Tijani, 430 F.3d at 1242 (interpreting statutory

framework to provide bond hearing because “it is constitutionally doubtful that Congress may authorize imprisonment

of this duration for lawfully admitted resident aliens who are

RODRIGUEZ v. HAYES 11407
subject to removal.”). The nature of the particular statute

authorizing the detention of individual class members will

play some role in determining whether class members are

entitled to relief, as well. Nonetheless, the constitutional issue

at the heart of each class member’s claim for relief is common. 

We also note that a finding of commonality here serves the

purposes of the requirement. Answering comprehensively in

a class setting the constitutional question that is at the center

of the proposed class’s claims will facilitate development of

a uniform framework for analyzing detainee claims to a bond

hearing. This would render management of these claims more

efficient for the courts. It would also benefit many of the putative class members by obviating the severe practical concerns

that would likely attend them were they forced to proceed

alone. In many of the cases where we have adjudicated these

immigration detention claims, the petitioner had been

detained well beyond six months, the point at which counsel

contends that the putative class members should be entitled to

a bond hearing. See, e.g., Tijani, 430 F.3d at 1242 (9th Cir.

2005) (ordering a bond hearing after an alien was detained for

nearly three years). Without certification, therefore, many of

the putative class members likely would not be able to adjudicate their claimed need of a bond hearing after six months of

detention—that claim would become moot before the district

court could come to a decision. Thus, for many of the putative

class members, class treatment in this case is likely necessary

to provide the remedy sought.

To the extent there may be any concern that the differing

statutes authorizing detention of the various class members

will render class adjudication of class members’ claims

impractical or undermine effective representation of the class,

it may counsel the formation of subclasses. See Fed. R. Civ.

P. 23(c)(5); Marisol A., 126 F.3d at 378-79 (finding subclasses appropriate where groups of class members each had

“separate and discrete legal claims pursuant to particular fed11408 RODRIGUEZ v. HAYES
eral and state constitutional, statutory, and regulatory obligations of the defendants”). Because the possibility of

subclasses was not raised below, we leave it to the district

court to reach it in the first instance. The parties may submit

proposals for formation of subclasses on remand and the district court shall exercise its discretion to determine whether

adoption of any proposal would be appropriate. See U.S.

Parole Comm’n v. Geraghty, 445 U.S. 388, 407-08 (1980)

(holding that court of appeals may order district court to consider any proposals for subclasses made on remand). The district court, however, should not lose sight of the overarching

issue: The circumstances, if any, that would warrant prolonged detention without hearing.

B. Typicality 

[11] The typicality requirement looks to whether “the

claims of the class representatives [are] typical of those of the

class, and [is] ‘satisfied when each class member’s claim

arises from the same course of events, and each class member

makes similar legal arguments to prove the defendant’s liability.’ ” Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001)

(quoting Marisol A., 126 F.3d at 376). Like the commonality

requirement, the typicality requirement is “permissive” and

requires only that the representative’s claims are “reasonably

co-extensive with those of absent class members; they need

not be substantially identical.” Hanlon, 150 F.3d at 1020. We

conclude that Petitioner’s claim for a bond hearing is reasonably co-extensive with the claims of the class. Though Petitioner and some of the other members of the proposed class

are detained under different statutes and are at different points

in the removal process and hence do not raise identical

claims, they all, as already discussed, raise similar

constitutionally-based arguments and are alleged victims of

the same practice of prolonged detention while in immigration

proceedings. Cf. Armstrong, 275 F.3d at 869 (finding typicality where class representatives suffered with rest of class “a

refusal or failure to afford them accommodations as required

RODRIGUEZ v. HAYES 11409
by statute, and [were] objects of discriminatory treatment on

account of their disabilities” in parole and parole revocation

proceedings). 

Respondents argue that Petitioner’s claims are not typical

of the class because of his supervised release and because of

his aggravated felon status, currently under appeal. Both are

immaterial. The single relevance Petitioner’s supervised

release has to his claim is to whether it renders Petitioner’s

claim moot. Defenses unique to a class representative counsel

against class certification only where they “threaten to

become the focus of the litigation.” Hanon v. Dataproducts

Corp., 976 F.2d 497, 508 (9th Cir. 1992) (internal quotation

marks and citation omitted). We have determined that Petitioner’s supervised release does not moot his claim and, therefore, no mootness defense particular to him will interfere with

the ongoing class litigation.

[12] Petitioner’s aggravated felon status is similarly of no

significance to the typicality analysis. The claims of Petitioner

and the class on the whole are that they are entitled to a bond

hearing in which dangerousness and risk of flight are evaluated. While Petitioner’s criminal history is currently central to

the question of whether Petitioner will ultimately be removed

and will almost certainly be relevant to any bond hearing

determination, the determination of whether Petitioner is entitled to a bond hearing will rest largely on interpretation of the

statute authorizing his detention. The particular characteristics

of the Petitioner or any individual detainee will not impact the

resolution of this general statutory question and, therefore,

cannot render Petitioner’s claim atypical.

C. Adequacy

[13] “Whether the class representatives satisfy the adequacy requirement depends on ‘the qualifications of counsel

for the representatives, an absence of antagonism, a sharing of

interests between representatives and absentees, and the

11410 RODRIGUEZ v. HAYES
unlikelihood that the suit is collusive.’ ” Walters, 145 F.3d at

1046 (quoting Crawford v. Honig, 37 F.3d 485, 487 (9th Cir.

1994)). Petitioner alleged the qualifications of his counsel and

the lack of conflict or collusion in the court below. Respondents do not question these allegations. Instead, they challenge Petitioner’s adequacy only by re-asserting their

commonality and typicality arguments. See Gen. Tel. Co. of

Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982) (noting that

commonality and typicality concerns also relate to a representative’s adequacy). As we do not find that these arguments

have merit, Respondents have provided no reason to conclude

that class certification is properly denied for the reason that

Petitioner is an inadequate class representative.

D. Rule 23(b)(2)

Respondents challenge certification under Rule 23(b)(2) on

grounds parallel to their challenge under Rule 23(a). Respondents assert that as class members are potentially detained

pursuant to different statutes, Respondents have not refused to

act or acted on grounds generally applicable to the class. In

particular, Respondents note that some class members may

not ultimately be entitled to a bond hearing because they are

properly subject to mandatory detention and that the regulations currently implementing the various discretionary detentions statutes provide for a different burden of proof at bond

hearings than that found to be required by us in CasasCastrillon for aliens detained pursuant to Section 1226(a). 

[14] Respondents’ contentions miss the point of Rule

23(b)(2). “Class certification under Rule 23(b)(2)” requires

that “the primary relief sought is declaratory or injunctive.”

Zinser, 253 F.3d at 1195. The rule does not require us to

examine the viability or bases of class members’ claims for

declaratory and injunctive relief, but only to look at whether

class members seek uniform relief from a practice applicable

to all of them. As we have previously stated, “it is sufficient”

to meet the requirements of Rule 23(b)(2) that “class memRODRIGUEZ v. HAYES 11411
bers complain of a pattern or practice that is generally applicable to the class as a whole.” Walters, 145 F.3d at 1047; see

Alliance to End Repression v. Rochford, 565 F.2d 975, 979

(7th Cir. 1977) (finding Rule 23(b)(2) met despite “individual

qualities of [the] suit” because of “pattern or practice characteristic of defendants’ conduct that is generally applicable to

the class” (internal quotation marks omitted)). The fact that

some class members may have suffered no injury or different

injuries from the challenged practice does not prevent the

class from meeting the requirements of Rule 23(b)(2). Walters, 145 F.3d at 1047; cf. Gibson v. Local 40, Supercargoes

and Checkers, 543 F.2d 1259, 1264 (9th Cir. 1976) (“A class

action may be maintained under [Rule] 23(b)(2), alleging a

general course of racial discrimination by an employer or

union, though the discrimination may have . . . affect[ed] different members of the class in different ways . . . .”) Furthermore, unlike actions brought under one of the other 23(b)

prongs, “questions of manageability and judicial economy are

. . . irrelevant to 23(b)(2) class actions.” Forbush v. J.C. Penney Co., Inc., 994 F.2d 1101, 1105 (5th Cir. 1993); see Elliott

v. Weinberger, 564 F.2d 1219, 1229 (9th Cir.1977) ( “By its

terms, Rule 23 makes manageability an issue important only

in determining the propriety of certifying an action as a (b)(3),

not a (b)(2), class action.”), aff’d in pertinent part and rev’d

in part sub nom. Califano v. Yamasaki, 442 U.S. 682 (1979).

The proposed members of the class each challenge Respondents’ practice of prolonged detention of detainees without

providing a bond hearing and seek as relief a bond hearing

with the burden placed on the government. The particular statutes controlling class members’ detention may impact the viability of their individual claims for relief, but do not alter the

fact that relief from a single practice is requested by all class

members. Similarly, although the current regulations control

what sort of process individual class members receive at this

time, all class members seek the exact same relief as a matter

of statutory or, in the alternative, constitutional right. Hence,

we conclude that the proposed class meets the requirements

11412 RODRIGUEZ v. HAYES
of Rule 23(b)(2). Cf. Walters, 145 F.3d at 1047 (certifying

under Rule 23(b)(2 ) class of aliens seeking declaratory and

injunctive relief on ground that they received constitutionally

deficient notice of deportation procedures following charges

of document fraud); Marisol A., 126 F.3d at 378 (certifying

under Rule 23(b)(2) class of children seeking declaratory and

injunctive relief from systemic failures in child welfare system despite differing harms experienced by class members).

VII. Conclusion

Having found that none of the bars to class relief raised by

Respondents prevent certification of the proposed class and

that the class meets the requirements of Rule 23, we reverse

the district court’s denial of class certification and we remand

for further proceedings. We leave to the district court’s discretion the question of whether formation of subclasses would be

appropriate.

REVERSED AND REMANDED.

RODRIGUEZ v. HAYES 11413