(CN) – A Ninth Circuit panel hinted Monday it will send a long-running class action over prolonged detention of immigrants back to the Southern California judge hearing the case, and preserve a court order requiring bond hearings while the case is reviewed.
The Pasadena, California-based panel is again considering the case, after the U.S. Supreme Court ruled in February the lower court had misapplied the canon of constitutional avoidance in finding immigrants should generally get bond hearings after six months in detention, and then every six months if they continue to be held.
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 consideration.
On Monday, U.S. Circuit Judge Kim Wardlaw suggested the Ninth Circuit also remand, to Senior U.S. District Judge Terry Hatter Jr.
Because the Supreme Court ruled constitutional avoidance doesn't apply to the case, and because no court has addressed the case's constitutional questions in the eight years since it was filed, Wardlaw reasoned Hatter must do so now.
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.
"The Supreme Court...didn't reach the constitutional decision on the rationale, which should be decided by the lower court, meaning us, in the first instance," Wardlaw told Justice Department attorney Sarah Wilson. "Why doesn't that reasoning apply to us, too? Why shouldn't we just send this back?"
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 United States after a 2003 drug conviction and detained for more than three years.
Rodriguez and the class claimed prolonged detention without a bond hearing violates the Due Process Clause of the Constitution and Hatter agreed, issuing a class-wide injunction in September 2012 for class members detained in the Central District of California. Under it, 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.
Answering Wardlaw's question Wednesday, Wilson said the Ninth Circuit should review the case because it is now centers on a sole legal question: "Whether they [the plaintiffs] can establish there is a baseline constitutional right that is across-the-board universal for every individual in this case."
The Trump administration contends 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 government wants the injunction overturned and says detainees can file individual habeas petitions for bond hearings.
"It's simply not the case that this court could pluck an individual 1225b subclass member out of the subclass, conduct a legal analysis and say 'ta-da, this applies to everyone,'” Wilson said. "These individuals have unique legal precedent, unique factual backgrounds, unique procedures that apply to them."
The plaintiffs contend the case should proceed as a class action because every plaintiff has been incarcerated at least six months without a bond hearing. Led by the ACLU Foundation of Southern California, they want the Ninth Circuit's three-judge panel to affirm Hatter's class-wide injunction on constitutional grounds.
Also doubtful about a remand, ACLU attorney Ahilan Arulanantham said concurrently vacating the injunction would cause "massive harm" to "so many detainees" while the case is being litigated.
"There's a massive number of due process violations that the injunction has served to remedy," Arulanantham said, including asylum seekers who have passed the credible fear test and compose "the vast majority of the class."
Arulanantham asked the panel to address the merits of the asylum seekers' issues if it remands.
"If the court remands without addressing that question, there will be a lot of asylum seekers who will be imprisoned without due process for a very long period of time before somehow we're back here," he said.
He added, "That is what the system is; it's the jailer deciding – just checking a box on a form to imprison you for years. There's no prison, there's no record, there's no appeal, there's no way to correct even the most basic errors."
Wardlaw suggested the panel would keep the injunction in place on a potential remand, noting the Supreme Court remanded without vacating the injunction even though it "could have vacated easily if it wanted to."
U.S. Circuit Judge Ronald Gould and U.S. District Judge Sam Haddon, sitting by designation from the District of Montana, joined Wardlaw on the panel.
They did not indicate when they will rule.
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