Hernandez v. Sessions

872 F.3d 976

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 similarly-situated 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 Department; Sandra Hutchens, Sheriff, Orange County, Defendants-Appellants.

No. 16-56829.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 11, 2017—Pasadena, California

Filed October 2, 2017

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 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.

Before: Stephen Reinhardt, Ferdinand F. Fernandez, and Kim McLane Wardlaw, Circuit Judges.

Partial Concurrence and Partial Dissent by Judge Fernandez

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 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. 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 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 "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 non-citizen'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 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 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...