Federal Judge Considers Bond Hearings for Detained Immigrants

SAN FRANCISCO (CN) – Wading through a quagmire of earlier rulings, a federal judge indicated on Thursday that she will order the government to grant bond hearings to most detained undocumented immigrants held in the Ninth Circuit longer than six months.

U.S. Magistrate Judge Jacqueline Scott Corley said the question of whether to require the federal government to grant a class of detainees the hearings boiled down to which precedential ruling she should apply: the Ninth Circuit’s 2011 ruling in Diouf v. Napolitano or the Supreme Court’s 2018 ruling in Jennings v. Rodriguez, which disagreed with an earlier Supreme Court decision, 2001’s Zadvydas v. Davis.

Diouf requires the government to grant bond hearings after six months, and Zadvydas requires it to justify detention for longer than six months by showing at a bond hearing that deportation is likely in the near future.

Jennings, however, found that detainees do not have the right to a bond hearing, and that the Ninth Circuit should not have held otherwise. But the Supreme Court didn’t overrule Zadvydas in Jennings, rendering Diouf controlling in the Ninth Circuit.

“I’m bound by Ninth Circuit law unless they’re clearly irreconcilable,” Corley said of Diouf and Jennings. “What the majority [on the Supreme Court] was left with was Zadvydas, and they didn’t overrule it.”

Esteban Aleman Gonzalez and Jose Eduardo Gutierrez Sanchez, who both entered the United States illegally from Mexico, sued in March over the San Francisco Immigration Court’s refusal to grant them bond hearings after six months in detention. They said that in the absence of a bond hearing, their detentions violate the Immigration and Nationality Act and the Constitution’s due process clause.

Unless the government can show through “clear and convincing evidence” that a detainee is a flight risk or a danger to the community, detainees are entitled to release after six months, they claim.

A month later, Aleman and Gutierrez moved for a class-wide preliminary injunction barring the government from detaining immigrants longer than six months without a bond hearing.

Aleman, who has been held in the Contra Costa West County Detention Facility in Richmond since his arrest last August at his Antioch home, claims that without the injunction, he risks losing shared custody of his two U.S.-born daughters.

Gutierrez, who lived in San Lorenzo with his U.S.-citizen wife and two daughters prior to his September 2017 arrest, says he was the family’s sole breadwinner before being detained.

Both men contend that they can’t adequately prepare their immigration cases behind bars, which increases their chances of deportation.

Pushing against an injunction Thursday, Justice Department attorney Cara Alsterberg argued that Jennings had superseded Zadvydas and therefore, Diouf.

Plaintiffs’ attorney Judah Lakin countered that Jennings in fact “reinforced” Zadvydas’ and Diouf’s holdings.

“There is no question that Zadvydas is still good law,” said Lakin, who is with Van Der Hout, Brigagliano & Nightingale in San Francisco.

Corley appeared to agree with Lakin, but for different reasons.

Jennings ignored Zadvydas,” Corley said. “How can I say Jennings is clearly irreconcilable with Diouf when I’ve got Zadvydas that supports what Diouf did?”

In a court brief, the Justice Department argued that the Immigration and Nationality Act authorizes the government to detain and deport undocumented immigrants within 90 days, and doesn’t require it to grant them bond hearings. The statute, it says, allows for continued detention if detainees are deemed inadmissible and a court hasn’t determined that they are “significantly likely” to be deported in the “reasonably foreseeable future.”

The Justice Department contends that Aleman and Gutierrez are likely to be deported in the foreseeable future because only their pending applications to remain in the United States have delayed deportation.

According to the plaintiffs, every district court that has considered habeas actions filed by detainees for a bond hearing has ruled in their favor.

The plaintiffs seek to certify a class of all detainees in the Ninth Circuit who have or will reach six months in detention, or who have or will be denied a bond hearing after six months. The class would exclude detainees within classes already certified by the Central District of California and the Western District of Washington.

Corley said she will refrain from ruling on class certification until both parties file additional briefings.

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