Brito v. Garland

22 F.4th 240

Gilberto Pereira BRITO, individually and on behalf of all those similarly situated; Florentin Avila Lucas, individually and on behalf of all those similarly situated; Jacky Celicourt, individually and on behalf of all those similarly situated, Petitioners, Appellants/Cross-Appellees,

v.Merrick B. GARLAND,^* Attorney General, U.S. Department of Justice; Timothy S. Robbins, Acting Field Office Director, Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement; Tae D. Johnson, Acting Director, U.S. Immigration and Customs Enforcement; Alejandro Mayorkas, Secretary, U.S. Department of Homeland Security; Jean F. King, Director, Executive Office of Immigration Review, U.S. Department of Justice; Antone Moniz, Superintendent of the Plymouth County Correctional Facility ; Yolanda Smith, Superintendent of the Suffolk County House of Corrections ; Steven J. Souza, Superintendent of the Bristol County House of Corrections; Christopher Brackett, Superintendent of the Strafford County Department of Corrections ; Lori Streeter, Superintendent of the Franklin County House of Corrections, Respondents, Appellees/Cross-Appellants.

Nos. 20-1037

20-1119

United States Court of Appeals, First Circuit.

December 28, 2021

Daniel McFadden, with whom Matthew R. Segal, Adrian Lafaille, American Civil Liberties Union Foundation of Massachusetts, Inc., Gilles R. Bissonnette, Henry R. Klementowicz, SangYeob Kim, American Civil Liberties Union Foundation of New Hampshire, New Hampshire Immigrants' Rights Project, Michael K. T. Tan, ACLU Foundation Immigrants' Rights Project, Susan M. Finegan, Susan J. Cohen, Andrew Nathanson, Mathilda S. McGee-Tubb, Ryan Dougherty, and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. were on brief, for Appellants/Cross-Appellees.

Maura Healey, Attorney General of Massachusetts, Amanda Hainsworth, Assistant Attorney General, Civil Rights Division, Mark R. Herring, Attorney General of Virginia, William Tong, Attorney General of Connecticut, Claire Kindall, Solicitor General of Connecticut, Joshua Perry, Special Counsel for Civil Rights, Xavier Becerra, Attorney General of California, Kathleen Jennings, Attorney General of Delaware, Clare E. Connors, Attorney General of Hawai'i, Kwame Raoul, Attorney General of Illinois, Aaron M. Frey, Attorney General of Maine, Brian E. Frosh, Attorney General of Maryland, Dana Nessel, Attorney General of Michigan, Keith Ellison, Attorney General of Minnesota, Aaron D. Ford, Attorney General of Nevada, Gurbir S. Grewal, Attorney General of New Jersey, Hector Balderas, Attorney General of New Mexico, Letitia James, Attorney General of New York, Ellen F. Rosenblum, Attorney General of Oregon, Peter F. Neronha, Attorney General of Rhode Island, Thomas J. Donavan, Jr., Attorney General of Vermont, Robert W. Ferguson, Attorney General of Washington, and Karl A. Racine, Attorney General for the District of Columbia, on brief for the Commonwealths of Massachusetts and Virginia, the States of Connecticut, California, Delaware, Hawai'i, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington, and the District of Columbia, amici curiae.

Benjamin Casper Sanchez, Mimi Alworth, Valkyrie Jensen, Mengying Yao, and James H. Binger Center for New Americans, University of Minnesota Law School on brief for American Immigration Lawyers Association, amicus curiae.

Dayna J. Zolle, Elizabeth B. Wydra, Brianne J. Gorod, and Brian R. Frazelle on brief for Constitutional Accountability Center, amicus curiae.

Huy M. Le, Trial Attorney, Office of Immigration Litigation, with whom Ethan P. Davis, Acting Assistant Attorney General, Civil Division, William C. Peachey, Director, District Court Section, Office of Immigration Litigation, Elianis N. Pérez, Assistant Director, C. Frederick Sheffield, Senior Litigation Counsel, and J. Max Weintraub, Senior Litigation Counsel, were on brief, for Appellees/Cross-Appellants.

Before Lynch, Lipez, and Kayatta, Circuit Judges.

KAYATTA, Circuit Judge.

This class action presents a due process challenge to the bond procedures used to detain noncitizens during the pendency of removal proceedings under 8 U.S.C. § 1226(a), the discretionary immigration detention provision. In light of our recent decision in Hernandez-Lara v. Lyons, 10 F.4th 19 (1st Cir. 2021), we affirm the district court's declaration that noncitizens "detained pursuant to 8 U.S.C. § 1226(a) are entitled to receive a bond hearing at which the Government must prove the alien is either dangerous by clear and convincing evidence or a risk of flight by a preponderance of the evidence." Brito v. Barr, 415 F. Supp. 3d 258, 271 (D. Mass. 2019). We conclude, however, that the district court lacked jurisdiction to issue injunctive relief in favor of the class, and we otherwise vacate the district court's declaration as advisory. Our reasoning follows.

I.

The following facts are not in dispute. The three petitioners, who serve as named class representatives in this action -- Gilberto Pereira Brito, Florentin Avila Lucas, and Jacky Celicourt -- are noncitizens who were detained by Immigration and Customs Enforcement (ICE) officers. None has committed a criminal offense that would subject them to mandatory detention pending the duration of their removal proceedings. See 8 U.S.C. § 1226(c). They were therefore detained under section 1226(a), which provides that the government "may release" a detained noncitizen on "bond of at least $1,500 ... or conditional parole." Id. § 1226(a)(2). Each promptly petitioned for release on bond pending the completion of removal proceedings. Each also received a hearing before an immigration judge (IJ). At the hearings, the burden was placed on the petitioners in accordance with then-operative agency regulations requiring a detainee to prove that he or she is neither a danger to the community nor a flight risk. See Matter of Guerra, 24 I. & N. Dec. 37, 40 (B.I.A. 2006). And in each instance, the IJ denied release based on a failure to carry that burden.

The three petitioners subsequently filed a habeas corpus petition and class action complaint for declaratory and injunctive relief in the United States District Court for the District of Massachusetts. The petition contains two claims. In the first claim, the petitioners assert that the Due Process Clause of the Fifth Amendment requires the government to bear "the burden to justify continued detention by proving by clear and convincing evidence that the detainee is a danger to others or a flight risk, and, even if he or she is, that no condition or combination of conditions will reasonably assure the detainee's future appearance and the safety of the community." This claim also asserts that a constitutionally adequate bond hearing must include "consideration of the detainee's ability to pay in selecting the amount of any bond and [consideration of] suitability for release on alternative conditions of supervision." In their second claim, the petitioners allege that placing the burden of proof in a bond hearing on the noncitizen -- rather than on the government -- violates the Immigration and Nationality Act and the Administrative Procedure Act (APA).

After the petitioners moved for class certification, ICE issued new custody determinations for each of the three petitioners authorizing their release on bond. All three declined to request review of those custody determinations before an IJ. Rather, they promptly posted bond and were released. At the same time, they expressed their willingness to continue to serve as class representatives. The district court in turn ruled that the class claims remained alive, citing Genesis Healthcare Corporation v. Symczyk, 569 U.S. 66, 76, 133 S.Ct. 1523, 185 L.Ed.2d 636 (2013).

The district court certified two subclasses of noncitizens who have been detained by ICE under section 1226(a) in Massachusetts or are otherwise within the jurisdiction of the Boston Immigration Court. The first subclass consists of those detainees who have not yet received a bond hearing before an immigration judge (pre-hearing class), while the second consists of those who have already been denied release following a hearing (post-hearing class). The district court then granted summary judgment in favor of both subclasses on the due process claim and issued a declaratory order and a permanent injunction.¹ The court's declaratory order first held that noncitizens "detained pursuant to 8 U.S.C. § 1226(a) are entitled to receive a bond hearing at which the Government must prove the alien is either dangerous by clear and convincing evidence or a risk of flight by a preponderance of the evidence and that no condition or combination of conditions will reasonably assure the alien's future appearance and the safety of the community." Brito, 415 F. Supp. 3d at 271. The district court then held that at any future bond hearing, "the immigration judge must evaluate the alien's ability to pay in setting bond above $1,500 and must consider alternative conditions of release, such as GPS monitoring, that reasonably assure the safety of the community and the alien's future appearances." Id. In its permanent injunction, the district court ordered immigration courts to follow the requirements set forth in its declaratory order.² Both sides appealed.

The government raises two jurisdictional issues. First, it argues that a statute -- 8 U.S.C. § 1252(f)(1) -- precluded the district court from issuing "classwide injunctive relief and corresponding declaratory relief to enjoin or restrain the operation of the provisions of 8 U.S.C. §§ 1221 – 1254a on a classwide basis."³ Second, in response to our request for supplemental briefing, the government argues that the petitioners lack standing to press their claims that their IJs should have considered alternatives to detention and the noncitizens' ability to pay bond.

As to the merits, many of the...