Judge Orders Bond Hearings for Long-Time Immigrant Detainees

SAN FRANCISCO (CN) – A federal judge on Tuesday ordered the government to grant bond hearings to a class of undocumented immigrants in the Ninth Circuit detained longer than six months, blocking the government’s practice of denying the hearings.

In granting the preliminary injunction and certifying the class, U.S. District Judge Jacqueline Scott Corley in San Francisco found a recent Supreme Court decision that detainees do not have the right to a bond hearing after six months did not overrule Ninth Circuit law saying they do.

Jennings is in tension with Diouf II and perhaps even calls it and Zadvydas into doubt,” Corley wrote in a morning order, referring to the cases at issue. “But such circumstances do not permit this federal trial court to not follow Diouf II. As Diouf II is not clearly irreconcilable with Jennings it remains good law in this circuit. ”

Plaintiffs’ attorney Judah Lakin, with Van Der Hout, Brigagliano & Nightingale in San Francisco, said his clients were pleased with Corley’s ruling.

“The law clearly mandates that our class members get bond hearings after 180 days in immigration detention. Nonetheless, in clear violation of that law, the government had been denying our class members hearings they were statutorily entitled to,” Lakin said in an email. “That ends today and we are excited for all of our class members as they will now receive the most basic of procedural protections—a bond hearing before a neutral adjudicator to determine whether their detention is justified.”

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 Due Process Clause of the Constitution.

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 at his Bay Area home last August, claims that without the injunction he risks losing shared custody of his two U.S.-born daughters.

Gutierrez, who lived in the Bay Area city of 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.

At a preliminary injunction hearing last week, Corley said the question of whether to require the federal government to grant detainees the hearings turns on which precedential ruling she should apply: the Ninth Circuit’s 2011 ruling in Diouf v. Napolitano, commonly referred to as Diouf II, or the Supreme Court’s 2018 ruling in Jennings v. Rodriguez, which gutted an earlier 2001 Supreme Court decision Zadvydas v. Davis.

Diouf II 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 periodic bond hearings, and that the Ninth Circuit should not have held otherwise.

The federal government had argued Jennings superseded Zadvydas and therefore Diouf II by holding that because the Immigration and Nationality Act can’t be interpreted to require bond hearings every six months, the U.S. Code can’t be interpreted as requiring a bond hearing for prolonged detention.

But Corley noted in Tuesday’s ruling that Jennings “specifically did not overrule Zadvydas and in Zadvydas the Supreme Court used the canon of constitutional avoidance to construe section 1231(a)(6) [of the U.S. Code] to include procedural requirements not specifically set forth in the statute.”

The canon of constitutional avoidance advises federal courts to avoid ruling on a constitutional issue if the case can be resolved on nonconstitutional grounds.

“This court can find Jennings clearly irreconcilable with Diouf II only by ignoring Zadvydas. However, even if ‘recent Supreme Court jurisprudence has perhaps called into question the continuing viability of [its precedent], [the lower courts] are bound to follow a controlling Supreme Court precedent until it is explicitly overruled by that court,'” Corley wrote, quoting from the Ninth Circuit’s 2011 ruling in Nunez-Reyes v. Holder.

Corley also certified the proposed class as to their statutory claims. But she denied without prejudice their motion to certify their due process claims pending the Ninth Circuit’s resolution in Jennings of whether Rule 23 of the Federal Rules of Civil Procedure authorizes class certification of such claims.

The class comprises most present and future detainees in the Ninth Circuit. It excludes detainees within classes already certified by the Central District of California and the Western District of Washington.

Cara Alsterberg with the Department of Justice in Washington represents the government. The department did not return a request for comment on Tuesday.


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