Ninth Circuit Orders New Look at Bond Hearings for Immigrants

PASADENA, Calif. (CN) – With "grave doubts" about the constitutionality of withholding bond hearings from immigrants detained longer than six months, a Ninth Circuit panel on Monday sent a class action back to the Southern California judge hearing the case and preserved a court order requiring bond hearings while the case is reviewed.

But the three-judge panel declined to review the case's constitutional questions or whether the case should proceed as a class action, despite instructions from the U.S. Supreme Court to do so.

Those instructions were part of a February ruling that found the lower court misapplied the canon of constitutional avoidance by holding immigrants should generally get bond hearings after six months in detention, and then every six months if they continue to be held.

The canon of constitutional avoidance states a federal court should refuse to rule on a constitutional question if the case can be resolved on a non-constitutional basis.

Finding the federal regulations governing these detentions don’t give detained immigrants the right to periodic bond hearings, the Supreme Court’s majority remanded the case to the Ninth Circuit for further review.

The appeals court kept intact a class-wide order requiring bond hearings despite objections by the Trump administration.

"We have grave doubts that any statute that allows for arbitrary prolonged detention without any process is constitutional or that those who founded our democracy precisely to protect against the government’s arbitrary deprivation of liberty would have thought so," the panel wrote in an unsigned opinion Monday. "Arbitrary civil detention is not a feature of our American government."

Lead plaintiff Alejandro Rodriguez first sued over the right to a bond hearing in 2010. A legal permanent resident of the United States since he was an infant, Rodriguez was ordered removed from the country after a 2003 drug conviction and detained for more than three years.

Lead by the ACLU Foundation of Southern California, Rodriguez and the class claimed prolonged detention without a bond hearing violates the due process clause of the Constitution, and Senior U.S. District Judge Terry Hatter Jr. in Los Angeles agreed, issuing an injunction in September 2012 for class members detained in the Central District of California.

Under the injunction, the government was required to identify all class members being detained under the challenged rules and to give them a bond hearing before an immigration judge for potential release, as long as they weren’t likely to commit a crime or flee.

The Ninth Circuit affirmed the injunction twice, in April 2013 and October 2015.

In remanding the case without reviewing its constitutional issues, the Ninth Circuit explained Monday it was "taking our cue" from the Supreme Court which also declined merit-based review.

U.S. Circuit Judge Kim Wardlaw suggested at oral argument last month that Hatter should be the first to address them, because no court had done so in the eight years since the case was filed.

The panel further ordered Hatter to review whether the class should remain certified for consideration of the constitutional issues; whether a class action is still appropriate in light of the Supreme Court's 2011 decision in Wal-Mart Stores, Inc. v. Dukes and for resolving the plaintiffs' due process claims; and whether composition of the subclasses should be reconsidered "[b]ecause district courts have vastly more experience with class litigation than appellate courts."

The Trump administration argues the case shouldn’t proceed as a class action because the class contains several sub-classes of people – asylum seekers, longtime residents, and some potentially deportable due to criminal histories – whose cases require different constitutional analyses.

The class, represented by ACLU attorney Ahilan Arulanantham, contends that because every plaintiff has been incarcerated at least six months without a bond hearing, their claims are similar enough to warrant class certification.

In an email, Arulanantham said he was pleased the Ninth Circuit preserved Hatter's injunction.

"For the last six years it has protected the liberty of thousands of immigrants, including many who have fled persecution in their home countries and many others who have lived here with their families for years," Arulanantham said. "We look forward to demonstrating to the district court why the constitution requires that the injunction remain in place."

The Justice Department declined to comment.

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