Pereira Brito v. Garland ( 2021 )

United States Court of Appeals
For the First Circuit
Nos. 20-1037, 20-1119
GILBERTO PEREIRA BRITO, individually and on behalf of all those
similarly situated; FLORENTIN AVILA LUCAS, individually and on
behalf of all those similarly situated; JACKY CELICOURT,
individually and on behalf of all those similarly situated,
Petitioners, Appellants/Cross-Appellees,
v.
MERRICK B. GARLAND,* Attorney General, U.S. Department of
Justice; TIMOTHY S. ROBBINS, Acting Field Office Director,
Enforcement and Removal Operations, U.S. Immigration and Customs
Enforcement; TAE D. JOHNSON, Acting Director, U.S. Immigration
and Customs Enforcement; ALEJANDRO MAYORKAS, Secretary, U.S.
Department of Homeland Security; JEAN F. KING, Director,
Executive Office of Immigration Review, U.S. Department of
Justice; ANTONE MONIZ, Superintendent of the Plymouth County
Correctional Facility; YOLANDA SMITH, Superintendent of the
Suffolk County House of Corrections; STEVEN J. SOUZA,
Superintendent of the Bristol County House of Corrections;
CHRISTOPHER BRACKETT, Superintendent of the Strafford County
Department of Corrections; LORI STREETER, Superintendent of the
Franklin County House of Corrections,
Respondents, Appellees/Cross-Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Merrick B. Garland has been substituted for former Attorney General
William P. Barr as respondent, Acting Director Tae D. Johnson has
been substituted for former Acting Director Matthew T. Albence as
respondent, Secretary of Homeland Security Alejandro Mayorkas has
been substituted for former Secretary Chad F. Wolf as respondent,
and Director Jean C. King has been substituted for former Director
James McHenry as respondent.
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lynch, Lipez, and Kayatta,
Circuit Judges.
Daniel McFadden, with whom Matthew R. Segal, Adrian Lafaille,
American Civil Liberties Union Foundation of Massachusetts, Inc.,
Gilles R. Bissonnette, Henry R. Klementowicz, SangYeob Kim,
American Civil Liberties Union Foundation of New Hampshire, New
Hampshire Immigrants' Rights Project, Michael K. T. Tan, ACLU
Foundation Immigrants' Rights Project, Susan M. Finegan, Susan J.
Cohen, Andrew Nathanson, Mathilda S. McGee-Tubb, Ryan Dougherty,
and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. were on
brief, for Appellants/Cross-Appellees.
Maura Healey, Attorney General of Massachusetts, Amanda
Hainsworth, Assistant Attorney General, Civil Rights Division,
Mark R. Herring, Attorney General of Virginia, William Tong,
Attorney General of Connecticut, Claire Kindall, Solicitor General
of Connecticut, Joshua Perry, Special Counsel for Civil Rights,
Xavier Becerra, Attorney General of California, Kathleen Jennings,
Attorney General of Delaware, Clare E. Connors, Attorney General
of Hawai'i, Kwame Raoul, Attorney General of Illinois, Aaron M.
Frey, Attorney General of Maine, Brian E. Frosh, Attorney General
of Maryland, Dana Nessel, Attorney General of Michigan, Keith
Ellison, Attorney General of Minnesota, Aaron D. Ford, Attorney
General of Nevada, Gurbir S. Grewal, Attorney General of New
Jersey, Hector Balderas, Attorney General of New Mexico, Letitia
James, Attorney General of New York, Ellen F. Rosenblum, Attorney
General of Oregon, Peter F. Neronha, Attorney General of Rhode
Island, Thomas J. Donavan, Jr., Attorney General of Vermont, Robert
W. Ferguson, Attorney General of Washington, and Karl A. Racine,
Attorney General for the District of Columbia, on brief for the
Commonwealths of Massachusetts and Virginia, the States of
Connecticut, California, Delaware, Hawai'i, Illinois, Maine,
Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New
York, Oregon, Rhode Island, Vermont, and Washington, and the
District of Columbia, amici curiae.
Benjamin Casper Sanchez, Mimi Alworth, Valkyrie Jensen,
Mengying Yao, and James H. Binger Center for New Americans,
University of Minnesota Law School on brief for American
Immigration Lawyers Association, amicus curiae.
Dayna J. Zolle, Elizabeth B. Wydra, Brianne J. Gorod, and
Brian R. Frazelle on brief for Constitutional Accountability
Center, amicus curiae.
Huy M. Le, Trial Attorney, Office of Immigration Litigation,
with whom Ethan P. Davis, Acting Assistant Attorney General, Civil
Division, William C. Peachey, Director, District Court Section,
Office of Immigration Litigation, Elianis N. Pérez, Assistant
Director, C. Frederick Sheffield, Senior Litigation Counsel, and
J. Max Weintraub, Senior Litigation Counsel, were on brief, for
Appellees/Cross-Appellants.
December 28, 2021
KAYATTA, Circuit Judge. This class action presents a
due process challenge to the bond procedures used to detain
noncitizens during the pendency of removal proceedings under 8
U.S.C. § 1226(a), the discretionary immigration detention
provision. In light of our recent decision in Hernandez-Lara v.
Lyons, 10 F.4th 19 (1st Cir. 2021), we affirm the district court's
declaration that noncitizens "detained pursuant to 8 U.S.C.
§ 1226(a) are entitled to receive a bond hearing at which the
Government must prove the alien is either dangerous by clear and
convincing evidence or a risk of flight by a preponderance of the
evidence." Brito v. Barr, 415 F. Supp. 3d 258, 271 (D. Mass.
2019). We conclude, however, that the district court lacked
jurisdiction to issue injunctive relief in favor of the class, and
we otherwise vacate the district court's declaration as advisory.
Our reasoning follows.
I.
The following facts are not in dispute. The three
petitioners, who serve as named class representatives in this
action -- Gilberto Pereira Brito, Florentin Avila Lucas, and Jacky
Celicourt -- are noncitizens who were detained by Immigration and
Customs Enforcement (ICE) officers. None has committed a criminal
offense that would subject them to mandatory detention pending the
duration of their removal proceedings. See 8 U.S.C. § 1226(c).
They were therefore detained under section 1226(a), which provides
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that the government "may release" a detained noncitizen on "bond
of at least $1,500 . . . or conditional parole." Id. § 1226(a)(2).
Each promptly petitioned for release on bond pending the completion
of removal proceedings. Each also received a hearing before an
immigration judge (IJ). At the hearings, the burden was placed on
the petitioners in accordance with then-operative agency
regulations requiring a detainee to prove that he or she is neither
a danger to the community nor a flight risk. See Matter of Guerra,
24 I. & N. Dec. 37, 40 (B.I.A. 2006). And in each instance, the
IJ denied release based on a failure to carry that burden.
The three petitioners subsequently filed a habeas corpus
petition and class action complaint for declaratory and injunctive
relief in the United States District Court for the District of
Massachusetts. The petition contains two claims. In the first
claim, the petitioners assert that the Due Process Clause of the
Fifth Amendment requires the government to bear "the burden to
justify continued detention by proving by clear and convincing
evidence that the detainee is a danger to others or a flight risk,
and, even if he or she is, that no condition or combination of
conditions will reasonably assure the detainee's future appearance
and the safety of the community." This claim also asserts that a
constitutionally adequate bond hearing must include "consideration
of the detainee's ability to pay in selecting the amount of any
bond and [consideration of] suitability for release on alternative
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conditions of supervision." In their second claim, the petitioners
allege that placing the burden of proof in a bond hearing on the
noncitizen -- rather than on the government -- violates the
Immigration and Nationality Act and the Administrative Procedure
Act (APA).
After the petitioners moved for class certification, ICE
issued new custody determinations for each of the three petitioners
authorizing their release on bond. All three declined to request
review of those custody determinations before an IJ. Rather, they
promptly posted bond and were released. At the same time, they
expressed their willingness to continue to serve as class
representatives. The district court in turn ruled that the class
claims remained alive, citing Genesis Healthcare Corporation v.
Symczyk, 569 U.S. 66, 76 (2013).
The district court certified two subclasses of
noncitizens who have been detained by ICE under section 1226(a) in
Massachusetts or are otherwise within the jurisdiction of the
Boston Immigration Court. The first subclass consists of those
detainees who have not yet received a bond hearing before an
immigration judge (pre-hearing class), while the second consists
of those who have already been denied release following a hearing
(post-hearing class). The district court then granted summary
judgment in favor of both subclasses on the due process claim and
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issued a declaratory order and a permanent injunction.1 The
court's declaratory order first held that noncitizens "detained
pursuant to 8 U.S.C. § 1226(a) are entitled to receive a bond
hearing at which the Government must prove the alien is either
dangerous by clear and convincing evidence or a risk of flight by
a preponderance of the evidence and that no condition or
combination of conditions will reasonably assure the alien's
future appearance and the safety of the community." Brito, 415 F.
Supp. 3d at 271. The district court then held that at any future
bond hearing, "the immigration judge must evaluate the alien's
ability to pay in setting bond above $1,500 and must consider
alternative conditions of release, such as GPS monitoring, that
reasonably assure the safety of the community and the alien's
future appearances." Id. In its permanent injunction, the
district court ordered immigration courts to follow the
requirements set forth in its declaratory order.2 Both sides
appealed.
1 Because the district court found that requiring a
noncitizen to bear the burden of proof in his bond hearing violated
the Due Process Clause, it concluded that such burden allocation
also violated the APA, which bars unconstitutional agency
policies. As a result, the court declined to reach the
petitioners' alternative arbitrary-and-capricious APA theory.
Because our decision in Hernandez-Lara confirms that the
government must bear the burden of proof in a bond hearing, 10
F.4th at 39, we need not reach the petitioners' APA claim.
2 The court also required the government to provide a copy
of the declaratory judgment and permanent injunction to members of
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The government raises two jurisdictional issues. First,
it argues that a statute -- 8 U.S.C. § 1252(f)(1) -- precluded the
district court from issuing "classwide injunctive relief and
corresponding declaratory relief to enjoin or restrain the
operation of the provisions of 8 U.S.C. §§ 1221–1254a on a
classwide basis."3 Second, in response to our request for
supplemental briefing, the government argues that the petitioners
lack standing to press their claims that their IJs should have
considered alternatives to detention and the noncitizens' ability
to pay bond.
As to the merits, many of the issues the parties briefed
on appeal were resolved by our decision in Hernandez-Lara. In
that opinion, we held that the minimum requirements of due process
dictate that, in order to detain a person under section 1226(a)
who is prepared to put up whatever bond is properly required, the
both subclasses, and required the government to provide class
counsel with certain information about each member of the post-
hearing class. Except to the extent the government challenges the
authority of the district court to issue a classwide injunction,
these aspects of the district court's order are not challenged on
appeal.
3 In its statement of the issues, the government also asserts
that "the class does not meet the requirements for certification."
But the government's brief makes no attempt to develop this
statement into argument, failing even to explain how the
requirements of Rule 23 are not met. Any challenge based on any
claimed failure to satisfy Rule 23 is therefore waived. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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government must either prove by clear and convincing evidence that
the person is a danger to the community, or prove by a
preponderance of the evidence that the person is a flight risk.
10 F.4th at 39–41. We reaffirm that conclusion here.4
Having cleared away the issues already decided in
Hernandez-Lara, we consider several questions that remain: whether
8 U.S.C. § 1252(f)(1) barred the classwide injunction entered
below; whether the petitioners have standing to argue that their
IJs should have considered alternatives to detention and the
petitioners' ability to pay bond; and, if so, whether these
procedural due process claims have merit.
II.
We begin our discussion of the remaining issues on appeal
with a brief detour. Although neither party argues that this case
became moot when the named plaintiffs were released from detention,
that question bears on our own jurisdiction, and we must therefore
consider it. See Ruskai v. Pistole, 775 F.3d 61, 67 (1st Cir.
2014) ("Although the parties do not address mootness, we are
obliged to consider the issue sua sponte.").
4 Judge Lynch would resolve the merits of these
constitutional issues in favor of the government for the reasons
she gave in her dissent in Hernandez-Lara. 10 F.4th at 46–59
(Lynch, J., dissenting). Further, in her view the majority
decision in Hernandez-Lara is not binding because it is not final,
as the time period for en banc review has not expired. See Doe v.
Tompkins, 11 F.4th 1, 2–3 (1st Cir. 2021) (Lynch, J., dissenting).
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A class action "ordinarily must be dismissed as moot if
no decision on class certification has occurred by the time that
the individual claims of all named plaintiffs have been fully
resolved." Cruz v. Farquharson, 252 F.3d 530, 533 (1st Cir. 2001).
Nonetheless, there is at least one exception to this ordinary
practice: A court may certify a class in such a circumstance where
"it is 'certain that other persons similarly situated' will
continue to be subject to the challenged conduct and the claims
raised are 'so inherently transitory that the trial court will not
have even enough time to rule on a motion for class certification
before the proposed representative's individual interest
expires.'" Genesis Healthcare Corp., 569 U.S. at 76 (quoting
County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991)). The
record in this litigation demonstrates that this exception
applies, given the ongoing occurrence of bond hearings and the
relative pace of federal court litigation and immigration
proceedings. The government makes no argument that the record
should be viewed otherwise. We therefore see no reason to treat
this litigation as moot given the request for class certification.
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III.
We turn now to the government's contention that 8 U.S.C.
§ 1252(f)(1) precludes the issuance of the classwide injunctive
relief granted by the district court. Titled "[l]imit on
injunctive relief," section 1252(f)(1) provides:
Regardless of the nature of the action or
claim or of the identity of the party or
parties bringing the action, no court (other
than the Supreme Court) shall have
jurisdiction or authority to enjoin or
restrain the operation of [8 U.S.C. §§ 1221–
32], . . . other than with respect to the
application of such provisions to an
individual alien against whom proceedings
under such part have been initiated.
This text plainly leaves untouched a court's jurisdiction to issue
injunctive relief in favor of any "individual alien against whom
[proceedings under, inter alia, section 1226(a)] have been
initiated." It therefore follows that section 1252(f)(1) by
itself posed no jurisdictional bar to granting injunctive relief
in favor of any individual class member to the extent that each
could show that he or she was "an individual alien against whom
proceedings" under section 1226(a) had been initiated.
The question then becomes how a court with jurisdiction
over multiple individuals' claims for injunctive relief can go
about managing the adjudication of those claims. Imagine, for
example, that one hundred individual noncitizens detained under
section 1226(a) each sought an injunction requiring his or her
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release unless the government successfully bore the burden of
proving that that individual was either a flight risk or a danger.
Ordinarily, a federal trial court would have several procedural
tools for handling such a bevy of similar claims by individual
noncitizens. It could consider consolidation under Rule 42(a) of
the Federal Rules of Civil Procedure. It might try the cases
seriatim, beginning with a representative case, the resolution of
which might provide a substantial resolution of the rest by stare
decisis. Or it might, at the request of the plaintiffs, consider
class certification if the claims are sufficiently numerous and
similar.
The government maintains that in cases like this,
section 1252(f)(1) should be read as removing from the district
court's customary toolbox the option of grouping and adjudicating
similar individual claims on a classwide basis. Its position is
not without textual support. True, section 1252(f)(1) does not
mention class actions by name. Compare 8 U.S.C. § 1252(e)(1)(B)
(barring courts from "certify[ing] a class under Rule 23"). See
also Padilla v. ICE, 953 F.3d 1134, 1149 (9th Cir. 2020)
(discussing "[s]ection 1252(f)(1)'s silence as to class actions"),
vacated on other grounds, 141 S. Ct. 1041 (2021). But the
statute's clear command that "no court (other than the Supreme
Court)" may "enjoin or restrain the operation of [8 U.S.C. §§ 1221–
32] other than with respect to the application of such provisions
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to an individual alien" comfortably encompasses class actions,
which necessarily involve more than the case of "an individual"
noncitizen. 8 U.S.C. § 1252(f)(1) (emphasis added).
The government also has a trump card in its hand: The
Supreme Court has on three occasions stated in dicta that
section 1252(f)(1) "prohibits federal courts from granting
classwide injunctive relief against the operation of §§ 1221–
1231." Reno v. Am.-Arab Anti-Discrimination Comm. (AADC), 525
U.S. 471, 481 (1999); Nken v. Holder, 556 U.S. 418, 431 (2009)
(citing AADC, 525 U.S. at 481–82); Jennings v. Rodriguez, 138 S.
Ct. 830, 851 (2018) (quoting AADC, 525 U.S. at 481).
We customarily consider ourselves bound to follow
"considered dicta" of the Supreme Court. United Nurses & Allied
Pros. v. NLRB, 975 F.3d 34, 40 (1st Cir. 2020). The statement in
AADC might not by itself qualify as an example of "considered
dicta." Nor might its reiteration in Nken. But its repetition in
Jennings occurred in the face of a dissenting opinion
characterizing the statement as "dict[um]" and objecting to the
majority's contention that section 1252(f)(1) precludes classwide
injunctions where "[e]very member of the class[]" is an
"'individual alien against whom proceedings . . . have been
initiated.'" Jennings, 138 S. Ct. at 875 (Breyer, J., dissenting)
(quoting 8 U.S.C. § 1252(f)(1)). So the restatement of that dictum
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would seem to have been considered, even if bereft of any
supporting analysis.
Our colleague who dissents on this question correctly
notes that the Supreme Court in Jennings -- after flatly stating
that section 1252(f)(1) "'prohibits federal courts from granting
classwide injunctive relief against the operation of [8 U.S.C.
§§ 1221–32]'" -- instructed the Ninth Circuit to "consider on
remand whether it may issue classwide injunctive relief based on
[the noncitizens'] constitutional claims." 138 S. Ct. at 851(quoting AADC, 525 U.S. at 481). These instructions for the lower
court do not imply that the Supreme Court pulled back on its flat
statement and directed the Ninth Circuit to consider whether
section 1252(f)(1) bars classwide injunctions. As we will shortly
explain, section 1252(f)(1) as construed in Jennings forbids only
classwide relief that "enjoin[s] or restrain[s] the operation" of
certain immigration laws. In Jennings, the Supreme Court noted
that the Ninth Circuit had not yet analyzed whether injunctive
relief on the noncitizens' constitutional claims would enjoin or
restrain the statutory provisions at issue. See 138 S. Ct. at
851. If an injunction would do no such thing, section 1252(f)(1)
would not bar the relief. Thus, the Court's instructions for
remand might even suggest that its earlier statement about
classwide injunctions was a holding rather than dictum because it
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took off the table any reconsideration of that statement on remand.
See 138 S. Ct. at 851 (quoting AADC, 525 U.S. at 481).5
We therefore set aside any attempt to determine in the
first instance how best to read the statutory text and instead
follow the Supreme Court's thrice-repeated, and quite express,
declaration. That leads us to the following inquiry: Does the
classwide injunction in this case "enjoin or restrain the
operation" of section 1226(a)? Before Jennings reached the
Supreme Court, the Ninth Circuit held that section 1252(f)(1) did
not preclude a classwide order that (1) enjoined the government
from detaining noncitizens under 8 U.S.C. §§ 1225(b), 1226(a), or
1226(c) for longer than six months without a bond hearing, and
(2) required the government to prove by clear and convincing
evidence that detention beyond six months is justified. See
Jennings, 138 S. Ct. at 839 (describing the Ninth Circuit's
decision below). In finding that section 1252(f)(1) did not bar
the injunction, the Ninth Circuit distinguished between enjoining
"the operation of the immigration detention statutes" and
enjoining conduct "not authorized by the statutes." Id. at 851(quoting Rodriguez v. Hayes, 591 F.3d 1105, 1120 (9th Cir. 2010)).
5The dissent's reliance on Nielson v. Preap, 139 S. Ct. 954,
962 (2019) (opinion of Alito, J., in which Roberts, C.J. and
Kavanaugh, J. joined), likely suffers from the same misreading of
Jennings and, in any event, the statement upon which the dissent
relies did not command a majority of the Court.
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The Supreme Court seemed to accept this distinction, albeit by
questioning whether it could save a claim based on a constitutional
due process challenge. Id. The notion seems to be that an
injunction against conduct not authorized by a statute does not
enjoin the operation of the statute, while an injunction against
conduct authorized by a statute but independently barred by the
Constitution does enjoin operation of the statute.
The petitioners advance a form of this argument,
contending that the injunction only "bears upon agency practice in
implementing a discretionary statutory provision, and not upon
statutory requirements," which, according to the petitioners, are
"silent" on the procedural requirements at issue here (emphases in
original). See Grace v. Barr, 965 F.3d 883, 907 (D.C. Cir. 2020)
(holding that section 1252(f)(1) "refers only to 'the operation of
the provisions' -- i.e., the statutory provisions themselves, and
thus places no restriction on the district court's authority to
enjoin agency action found to be unlawful" (emphasis in original)).
But, at least in the context of section 1226(a), this is
a distinction without a difference. Section 1226(a) plainly
grants the government the discretion to "continue to detain [an]
arrested alien" pending removal or to "release the alien on . . .
bond . . . or . . . parole." The fact that the statute may be
"silent" as to procedural issues like the burden of proof does not
change the fact that the district court's injunction restrains the
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operation of section 1226(a): Under the injunction, if the
government cannot bear the burden of showing a noncitizen is a
flight risk or a danger, the government may not continue detaining
that individual.6
We have considered the possibility that section 1226(a)
might be construed (so as to avoid a possible constitutional
defect) to not grant the government the discretion to detain
without carrying the burden of proving flight risk or
dangerousness. See Zadvydas v. Davis, 533 U.S. 678, 697 (2001)
("[W]hile 'may' suggests discretion, it does not necessarily
suggest unlimited discretion.") With the statute thus construed,
one could argue that the requested injunction bars only conduct by
the government that is beyond the scope of the discretion granted
by the statute. But Jennings cautions against such an ambitious
use of the constitutional avoidance canon. See 139 S. Ct. at 842–
43, 847–48 ("Spotting a constitutional issue does not give a court
the authority to rewrite a statute as it pleases."). Without the
benefit of any briefing on such an argument, we opt not to pursue
that path. Instead, we regard the district court's injunction to
be what it appears to be: a classwide injunction that restrains
6 The petitioners' parry to the government's passing
invocation of 8 U.S.C. § 1226(e) -- pointing us to Jennings's
explanation that section 1226(e) does not bar a challenge to the
"constitutionality of the entire statutory scheme," 138 S. Ct. at841 -- further confirms that the district court's injunction
restrains that "statutory scheme."
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the operation of section 1226(a) by requiring something that the
statute itself does not require. As such, it must be set aside
pursuant to section 1252(f)(1), as repeatedly described by the
Supreme Court.
Of course, the inability to use a classwide injunction
does not deprive the district courts of their other tools for
fairly and efficiently managing similar individual requests for
injunctive relief. And our decision in Hernandez-Lara establishes
binding precedent that adds to that toolbox by effectively
accelerating the adjudication of similar habeas petitions within
this circuit.
IV.
We consider next the petitioners' fallback contention
that even if the district court lacked jurisdiction to enjoin the
government as it did, it retained jurisdiction to grant declaratory
relief. The government develops no argument that
section 1252(f)(1) itself bars classwide declaratory relief.
Nonetheless, because section 1252(f)(1) appears to limit our
statutory jurisdiction, we address this issue. See 8 U.S.C.
§ 1252(f)(1) ("[N]o court (other than the Supreme Court) shall
have jurisdiction or authority to enjoin or restrain the operation
of [8 U.S.C. §§ 1221–1232] . . . ."); Jennings, 138 S. Ct. at 851(instructing the court of appeals to "decide whether it continues
to have jurisdiction despite" section 1252(f)(1)). The Jennings
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majority reserved the question whether the lower courts "may issue
only declaratory relief" under section 1252(f)(1). 138 S. Ct. at
851. Absent a Supreme Court decision resolving this question, we
begin with the statutory text.7
Section 1252(f)(1)'s title -- "[l]imit on injunctive
relief" -- provides the first indication of the section's limited
scope. Cf. Yates v. United States, 574 U.S. 528, 539–40 (2015)
(interpreting a statutory provision in light of its caption and
the title of the section where it was codified). The statutory
provision strips courts of jurisdiction to "enjoin or restrain"
the operation of certain statutes. Nothing about that text
suggests that it bars declaratory relief. See Arevalo v. Ashcroft,
344 F.3d 1, 7 (1st Cir. 2003) (interpreting "the word 'enjoin' as
7We note, however, that five sitting justices appear to have
endorsed the conclusion we ultimately reach -- that
section 1252(f)(1) does not strip the lower courts of the power to
grant declaratory relief. See id. at 875–76 (Breyer, J., joined
by Sotomayor, J., dissenting); Nielsen, 139 S. Ct. at 962 (opinion
of Alito, J., in which Roberts, C.J. and Kavanaugh, J. joined).
Each of our sister circuits to have decided the issue agrees. See
Make the Rd. N.Y. v. Wolf, 962 F.3d 612, 635 (D.C. Cir. 2020)
("[Section 1252(f)] does not proscribe issuance of a declaratory
judgment."); Alli v. Decker, 650 F.3d 1007, 1013 (3d Cir. 2011)
("[I]t is apparent that the jurisdictional limitations in
§ 1252(f)(1) do not encompass declaratory relief."); Rodriguez v.
Hayes, 591 F.3d 1105, 1119 (9th Cir. 2010) ("Section 1252(f) was
not meant to bar classwide declaratory relief."). But see Hamama
v. Adducci, 912 F.3d 869, 880 n.8 (6th Cir. 2018) ("[B]oth parties
agree . . . that the issue of declaratory relief is not before us.
Even if it were before us, we are skeptical [the noncitizens] would
prevail.").
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referring to permanent injunctions and the word 'restrain' as
referring to temporary injunctive relief (such as a stay)"). And
while declaratory relief can sometimes have much the same practical
effect as injunctive relief, it differs legally and materially.
"[A] declaratory judgment is a milder remedy" than an injunction;
it "does not, in itself, coerce any party or enjoin any future
action." Ulstein Mar., Ltd. v. United States, 833 F.2d 1052, 1055
(1st Cir. 1987); accord Steffel v. Thompson, 415 U.S. 452, 466
(1974) (opining that in passing the Declaratory Judgment Act,
"Congress plainly intended declaratory relief to act as an
alternative to the strong medicine of the injunction"). A
declaratory judgment does not, for example, set the stage for a
finding of contempt -- a distinction of special note in cases in
which the government is a party. We have recognized that because
"[i]njunctions and declaratory judgments are different remedies,"
the latter may be "available in situations where an injunction is
unavailable or inappropriate." Ulstein Mar., 833 F.2d at 1055.
Moreover, Congress knows how to prohibit declaratory
relief when it so chooses. Indeed, the preceding subpart in
section 1252 prohibits courts from granting "declaratory,
injunctive, or other equitable relief in any action pertaining to
an order to exclude an alien in accordance with
section 1225(b)(1)." 8 U.S.C. § 1252(e)(1)(A). We are thus loath
to insert a prohibition on declaratory relief into
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section 1252(f), where Congress elected not to include one. See
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002) ("[W]hen
'Congress includes particular language in one section of a statute
but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.'" (quoting Russello v. United
States, 464 U.S. 16, 23 (1983))).
To be sure, the Supreme Court has on occasion determined
that declaratory relief is unavailable under a statute that only
expressly prohibits injunctive relief. See, e.g., California v.
Grace Brethren Church, 457 U.S. 393, 407–09 (1982). But, even
after Grace Brethren, the Court has made clear that "declaratory
relief may be available even though an injunction is not." Green
v. Mansour, 474 U.S. 64, 72 (1985) (citing Steffel, 415 U.S. at
462). In occasionally withholding declaratory along with
injunctive relief, the Court appears to be motivated by federalism
concerns. See Green, 474 U.S. at 72 (discussing past cases);
accord Steffel, 415 U.S. at 472 ("The only occasions where this
Court has . . . found that a preclusion of injunctive relief
inevitably led to a denial of declaratory relief have been cases
in which principles of federalism militated altogether against
federal intervention in a class of adjudications."). Because
section 1252(f)(1) concerns federal courts' ability to enjoin the
- 21 -
operation of federal law, it does not implicate federalism
concerns.
Absent such concerns, we conclude that declaratory
relief remains available under section 1252(f)(1). In so holding,
we reach the unremarkable conclusion that Congress meant only what
it said -- and not what it did not say.8
V.
The district court also declared that "the immigration
judge must evaluate the alien's ability to pay in setting bond
above [the statutory minimum of] $1,500 and must consider
alternative conditions of release, such as GPS monitoring, that
reasonably assure the safety of the community and the alien's
future appearances." Id.9 As we will explain, threshold
considerations of the petitioners' standing and their failure to
exhaust their claim administratively combine to eliminate the need
8 The Supreme Court in Jennings left undecided whether
declaratory relief "can sustain [a] class on its own" under
Rule 23(b)(2). 138 S. Ct. at 851; see Fed. R. Civ. P. 23(b)(2)
(providing that a class may be maintained if, inter alia,
"declaratory relief is appropriate respecting the class as a
whole"). The government failed to raise this issue; nor is it a
type of jurisdictional issue that we must raise sua sponte.
9 The petitioners also alleged, and the district court ruled,
that the Constitution requires the government to prove that "no
condition or combination of conditions will reasonably assure the
alien's future appearance and the safety of the community." Brito,
415 F. Supp. 3d at 271. The petitioners fail to explain how this
claim differs from their claim that IJs must consider alternative
conditions of release, so we treat the claims as one.
- 22 -
to consider the government's challenge to this declaration on the
merits.
A.
We consider first the question of standing. In a class
action, "federal courts lack jurisdiction if no named plaintiff
has standing." Frank v. Gaos, 139 S. Ct. 1041, 1046 (2019); see
also In re Asacol Antitrust Litig., 907 F.3d 42, 48 (1st Cir. 2018)
("In a class action suit with multiple claims, at least one named
class representative must have standing with respect to each
claim." (quoting 1 William B. Rubenstein, Newberg on Class Actions
§ 2:5 (5th ed. 2012))). To establish standing, a named plaintiff
must "'clearly . . . allege facts demonstrating'" that she
"(1) suffered an injury in fact, (2) that is fairly traceable to
the challenged conduct of the defendant, and (3) that is likely to
be redressed by a favorable judicial decision." Spokeo, Inc. v.
Robins, 578 U.S. 330, 338 (2016) (quoting Warth v. Seldin, 422
U.S. 490, 518 (1975)).
Injury in fact is the "[f]irst and foremost" concern in
the standing analysis. Id. (alteration in original) (quoting Steel
Co. v. Citizens for Better Env't, 523 U.S. 83, 103 (1998)). To
prove injury, "a plaintiff must show that he or she suffered 'an
invasion of a legally protected interest' that is 'concrete and
particularized' and 'actual or imminent, not conjectural or
- 23 -
hypothetical.'" Id. at 339 (quoting Lujan v. Defs. of Wildlife,
504 U.S. 555, 560 (1992)).
The government claims the petitioners suffered no injury
because they never asked their IJs to consider their ability to
pay bond or alternatives to detention. We disagree. Detention
without due process is the alleged injury. Detention is the
quintessential liberty deprivation. See Foucha v. Louisiana, 504
U.S. 71, 80 (1992) ("Freedom from bodily restraint has always been
at the core of the liberty protected by the Due Process Clause
from arbitrary governmental action."). It is too late in the day
to dispute that an individual alleging that his detention resulted
from constitutionally defective procedures has suffered an injury
in fact sufficient to support Article III standing so as to
challenge those procedures. Cf., e.g., Hamdi v. Rumsfeld, 542
U.S. 507 (2004); see also Mendia v. Garcia, 768 F.3d 1009, 1012
(9th Cir. 2014) ("Remaining confined . . . when one should
otherwise be free is an Article III injury, plain and simple.").
Whether the detained person requested more process at the time is
a matter not of standing, but of exhaustion -- a subject to which
we return below.
Satisfied that the petitioners have alleged an injury in
fact, we move next to traceability and redressability.
Traceability ensures that a plaintiff's injury is "causally
connected" to the "'allegedly unlawful conduct' of which the
- 24 -
plaintiff[] complain[s]." California v. Texas, 141 S. Ct. 2104,
2114 (2021) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)).
Redressability, in turn, concerns "the relationship between 'the
judicial relief requested' and the 'injury' suffered." Id. at
2115 (quoting Allen, 468 U.S. at 753 n.19). Redressability
requires the requested relief to redress a plaintiff's injury,
thereby providing a safeguard against advisory opinions. Id. at
2116.
The analysis of these two standing requirements differs
as applied to the two claimed procedural defects.
1.
As to the petitioners' ability to pay bond, the record
is clear that no IJ ever got to the point of setting a bond amount
as a condition for releasing any petitioner. Rather, in each
instance, the IJ ruled that the petitioner did not establish an
entitlement to be released on bond at all. As a result, the
petitioners' alleged injuries are not fairly traceable to the IJs'
failure to consider the noncitizens' ability to pay bond.
Likewise, the petitioners' alleged injuries would not be redressed
by ordering IJs to consider a noncitizen's ability to pay bond.
To be sure, the complaint alleges generally that
noncitizens are "routinely" assessed "bond[s] set without
consideration of their ability to pay." The complaint in turn
cites to the affidavit of an immigration attorney, who states that
- 25 -
bond amounts have been rising, that an IJ told her that "an
individual's ability to pay is not part of the consideration in
setting the bond amount," and that some of her clients have
remained detained due to their inability to pay the bond amount
imposed. But even assuming these allegations show that some other
potential class member has suffered injury traceable to an IJ's
failure to consider her ability to pay, the relevant inquiry here
is whether any of the class representatives pled facts sufficient
to show their own standing. See Spokeo, 578 U.S. at 338 n.6. On
this record, none has.
Nor is this a case in which the petitioners are entitled
to a "relaxed" standing analysis that accounts for the difficulty
of proving the harm caused by the denial of a procedural right.
Cf. Lujan, 504 U.S. at 572 n.7 (noting that an individual "who has
been accorded a procedural right to protect his concrete interests
can assert that right without meeting all the normal standards for
redressability and immediacy"). Rather, in each instance, the
noncitizen's proceeding never got to the point at which the alleged
right (to an affordable bond) was at issue, much less violated.
The petitioners also argue that they face possible
future injury if they are again detained. But even assuming such
re-detention transpires, each petitioner would only be injured if
an IJ granted release but set too high a bond. The Supreme Court
has expressed "reluctan[ce] to endorse standing theories that
- 26 -
require guesswork as to how independent decisionmakers will
exercise their judgment." Clapper v. Amnesty Int'l USA, 568 U.S.
398, 413–14 (2013). We think that, in this case, the petitioners'
multi-step theory of standing predicated on possible future
developments is simply too attenuated to connect the claimed injury
with the possible claimed procedural right.
Our conclusion is reinforced by evidence the petitioners
presented to the district court regarding the median and mean bond
amounts in the Boston and Hartford immigration courts during the
period from November 1, 2018, to May 7, 2019. Those statistics
indicate that over half of the individuals for whom a bond was set
paid the bond amount and were released within ten days. It is, of
course, possible that some of those individuals procured funds
from sources beyond the scope of what an IJ would consider in
evaluating a noncitizen's ability to pay in the first instance.
Nevertheless, we think the statistics further destabilize the
petitioners' theory of standing based on the possibility they will
be re-detained and then assessed a bond they are unable to pay.
We therefore conclude that the petitioners lack standing
to press their claim that the Due Process Clause requires an IJ to
consider a noncitizen's ability to pay bonds exceeding $1,500.
- 27 -
2.
As to the contention that the IJs should have considered
alternative conditions of release, traceability and redressability
are closer questions.
The government argues that an IJ ought not consider a
noncitizen's ability to pay or alternatives to detention if the IJ
has determined that the noncitizen poses a danger to the community.
The petitioners were found to pose such a danger. So, the
government says, no harm, no foul: Even if the Due Process Clause
required an IJ to consider alternatives to detaining a non-
dangerous claimant, the IJ would not have reached that analysis in
the petitioners' cases.10 If the government is correct, the
petitioners have once again failed to prove traceability and
redressability.
But we are not so sure. The government appears to put
the cart before the horse, for it is easy to see how conditions of
release might shape an IJ's determination as to whether a
noncitizen poses a flight risk or danger to the community. Cf.
Fernandez Aguirre v. Barr, No. 19-CV-7048 (VEC), 2019 WL 4511933,
10 The petitioners filed a supplemental affidavit stating
that "immigration judges typically do not consider releasing a
detainee on conditions" and that that they "rarely articulate
consideration of an individual's suitability for alternative
conditions of release" (emphases added). But the parties agree
that the IJs in the petitioners' cases did not consider alternative
conditions of release.
- 28 -
at *5 (S.D.N.Y. Sept. 18, 2019) (discussing court's earlier order
that the IJ consider "whether non-incarceratory measures, such as
home detention, electronic monitoring, and so forth, could
mitigate any danger that [the noncitizen] posed to the safety of
the community . . . before concluding that detention was
appropriate" (emphasis added)). If due process requires an IJ to
consider alternatives to detention before making a determination
about dangerousness or risk of flight, the IJs in the petitioners'
cases might well have reached different decisions as to the whether
to release the petitioners on bond. Indeed, the petitioners' own
experiences illustrate this possibility: The government
ultimately agreed to release Celicourt and Avila Lucas if they
paid bonds above the statutory minimum, and it released Pereira
Brito subject to conditions that included electronic monitoring
and home visits.
Ultimately, we need not resolve the standing question,
for "a federal court has leeway 'to choose among threshold grounds
for denying audience to a case on the merits.'" Sinochem Int'l
Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431 (2007)
(quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999)).
Here, another "threshold ground[]" prevents us from reaching the
merits of the petitioners' alternatives-to-detention claim: It is
barred by the doctrine of administrative exhaustion. Our
explanation follows.
- 29 -
B.
As noted above, the government highlights the
petitioners' undisputed failure to raise their alternatives-to-
detention claims before their respective IJs. And while we think
this fact sheds little light on the standing inquiry, it poses the
question whether the petitioners failed to exhaust their
administrative remedies before pressing that claim in federal
court.11
Generally speaking, a plaintiff's failure to exhaust her
administrative remedies precludes her from obtaining federal
review of claims that would have properly been raised before the
agency in the first instance. There are two species of exhaustion:
statutory and common-law. See Anversa v. Partners Healthcare Sys.,
Inc., 835 F.3d 167, 174–76 (1st Cir. 2016). The former deprives
a federal court of jurisdiction, while the latter "cedes discretion
to a [federal] court to decline the exercise of jurisdiction."
Id. at 174. In other words, "exhaustion of administrative remedies
is absolutely required if explicitly mandated by Congress," but
"courts have more latitude in dealing with exhaustion questions
11 The petitioners allege that the government waived any
challenge to exhaustion on appeal. But the government's briefing
repeatedly and unequivocally asserted that the petitioners failed
to ask their IJs to consider alternatives to detention. This is
a classic exhaustion argument, and we decline to treat the issue
as waived, especially because, as discussed below, the lack of
exhaustion in this case impedes our ability to provide reasoned
judicial review.
- 30 -
when Congress has remained silent." Portela-Gonzalez v. Sec'y of
the Navy, 109 F.3d 74, 77 (1st Cir. 1997) (citing McCarthy v.
Madigan, 503 U.S. 140, 144 (1992) and Darby v. Cisneros, 509 U.S.
137, 153–54 (1993)).
We have held that at least some statutory exhaustion
requirements apply to a noncitizen's petition for habeas corpus.
See Sayyah v. Farquharson, 382 F.3d 20, 26 (1st Cir. 2004) (holding
that 8 U.S.C. § 1252(d)(1)'s administrative exhaustion requirement
applies in habeas proceedings where a noncitizen seeks review of
his final removal order).12 In this case, however, the government
points us to no statutory exhaustion requirement that would govern
the petitioners' pre-removal-order due process claims. We
therefore assume that we find ourselves in the more permissive
realm of common-law exhaustion. See Anversa, 835 F.3d at 174–75
("bypassing the jurisdictional inquiry" where "the statutory
exhaustion analysis [was] complex and uncertain, and its outcome
12In Sayyah, we suggested that even statutory exhaustion
"while strict, admits of appropriate exceptions in extraordinary
instances." Id. at 27. However, for reasons we will explain
shortly, we do not think this case presents such an "extraordinary
instance[]." We have also noted that "some claims of denial of
due process . . . are exempt from [a statutory] exhaustion
requirement because the [agency] has no power to address them."
Bernal-Vallejo v. INS, 195 F.3d 56, 64 (1st Cir. 1999). But the
petitioners do not suggest that the agency was without power to
consider their claims.
- 31 -
would have no bearing on the ultimate result" because common-law
administrative exhaustion barred relief).
The petitioners do not argue that they exhausted their
alternatives-to-detention claims below.13 Rather, citing a
district court decision, the petitioners assert in a footnote that
they were not required to exhaust administrative remedies. We do
not see why. Exhaustion allows "an agency the first opportunity
to apply [its] expertise" and "obviat[es] the need for [judicial]
review in cases in which the agency provides appropriate redress."
Anversa, 835 F.3d at 175–76. Here, the agency is better equipped
than are the federal courts to determine what alternatives to
detention an IJ has the authority to enforce. Cf. Massingue v.
Streeter, No. 3:19-cv-30159-KAR, 2020 WL 1866255, at *5 (D. Mass.
Apr. 14, 2020) (declining to disturb an IJ's determination that
"he would be unable to enforce [a noncitizen's] compliance with"
use "of an ignition interlock device" as a condition of release).
And the petitioners' own submissions suggest that at least some
IJs already consider alternatives to detention, indicating that
the agency may be amenable to "provid[ing] appropriate redress" in
the first instance. Further, and most important for our purposes,
13 Nor do the petitioners claim to have raised the
alternatives-to-detention argument before their respective IJs.
Petitioners Pereira Brito and Avila Lucas do purport to have
belatedly raised this claim before the BIA, but the BIA never
reached the issue in either case: It dismissed Pereira Brito's
appeal as moot, and Avila Lucas withdrew his appeal.
- 32 -
the petitioners' failure to ask their own IJs to consider
alternatives to detention means that they did not "creat[e] 'a
useful record for subsequent judicial consideration.'" Anversa,
835 F.3d 167 (quoting McCarthy, 503 U.S. at 145). Such a record
is especially important "in a complex or technical factual context"
like this one. Id. (quoting McCarthy, 503 U.S. at 145).
All of these considerations weigh in favor of requiring
exhaustion. And, because none of the petitioners remains detained
at present, we see little on the other side of the ledger. Cf.
Portela-Gonzalez, 109 F.3d at 77 (noting that a court may decline
to apply common-law exhaustion where "a particular plaintiff may
suffer irreparable harm if unable to secure immediate judicial
consideration of his claim" (quoting McCarthy, 503 U.S. at 147));
Bois v. Marsh, 801 F.2d 462, 468 (D.C. Cir. 1986) ("[E]xhaustion
might not be required if [the petitioner] were challenging her
incarceration . . . or the ongoing deprivation of some other
liberty interest.").
As a result, we decline to review the petitioners'
unexhausted alternatives-to-release claim.
VI.
For the foregoing reasons, we affirm the district
court's declaratory judgment to the extent it declared that if the
government refuses to offer release subject to bond to a noncitizen
detained pursuant to 8 U.S.C. § 1226(a), it must either prove by
- 33 -
clear and convincing evidence that the noncitizen is dangerous or
prove by a preponderance of the evidence that the noncitizen poses
a flight risk. We otherwise vacate the district court's
declaratory judgment and permanent injunction and remand for entry
of judgment in accordance with this opinion.
- Opinion Dissenting in Part Follows -
- 34 -
LIPEZ, Circuit Judge, dissenting in part. I agree with
all but one of the conclusions reached in the majority opinion:
the determination that 8 U.S.C. § 1252(f)(1) bars the plaintiffs'
request for class-wide injunctive relief. My disagreement is
twofold. First, without analyzing the question themselves, my
colleagues rely on Supreme Court dicta that they admit is "bereft
of any supporting analysis" to "remov[e] from the district court's
customary toolbox the option of grouping and adjudicating similar
individual claims on a classwide basis." That reliance on dicta
is untenable. Second, Congress's supposed rejection of all class-
wide injunctive relief cannot be found in the language of
§ 1252(f)(1), and the provision's legislative history in fact
reveals a more limited congressional objective. Therefore, I
respectfully dissent from the injunctive relief portion of the
majority decision.
I.
The starting point for any issue of statutory
construction is "the text itself." Penobscot Nation v. Frey, 3
F.4th 484, 490 (1st Cir. 2021); see also, e.g., United States v.
Alvarez-Sanchez, 511 U.S. 350, 356 (1994) ("When interpreting a
statute, we look first and foremost to its text."). In so doing,
we consider "whether the language at issue has a plain and
unambiguous meaning with regard to the particular dispute in the
case," In re Fin. Oversight & Mgmt. Bd. for P.R., 919 F.3d 121,
- 35 -
128 (1st Cir. 2019) (quoting Robinson v. Shell Oil Co., 519 U.S.
337, 340 (1997)), and, if not, "we then turn to other tools of
statutory construction," id.This is the relevant language in § 1252(f)(1):
[N]o court (other than the Supreme Court)
shall have jurisdiction or authority to enjoin
or restrain the operation of [8 U.S.C.
§§ 1221-32], . . . other than with respect to
the application of such provisions to an
individual alien against whom proceedings
under such part have been initiated.
8 U.S.C. § 1252(f)(1). The government deduces from this language
a prohibition against the class-wide injunctive relief plaintiffs
seek in this case. Specifically, the government reads the
reference to "an individual alien against whom proceedings
. . . have been initiated" to limit injunctive relief to civil
actions brought solely on behalf of "an individual," and, hence,
to foreclose that form of relief in the context of a class action.
My colleagues cautiously observe with a double negative
that the government's reading "is not without textual support."
Yet, they go on to implicitly concede that § 1252(f)(1) lacks a
plain and unambiguous meaning concerning the availability of
class-wide injunctive relief when they acknowledge that the
section "does not mention class actions by name." To resolve the
statute's ambiguity, my colleagues identify "a trump card" for the
government in Supreme Court dicta. Carefully examined, however,
that dicta does not give the government a winning hand.
- 36 -
As the majority points out, on three occasions between
1999 and 2018, the Supreme Court -- when addressing other issues
-- has mentioned in passing that § 1252(f)(1) bars class-wide
injunctive relief. See Reno v. Am.-Arab Anti-Discrimination Comm.
(AADC), 525 U.S. 471, 481-82 (1999); Nken v. Holder, 556 U.S. 418,
431 (2009) (citing AADC, 525 U.S. at 481-82); Jennings v.
Rodriguez, 138 S. Ct. 830, 851 (2018) (quoting AADC, 525 U.S. at
481). I agree with the majority that we ordinarily should follow
"considered dicta" of the Supreme Court. United Nurses & Allied
Pros. v. NLRB, 975 F.3d 34, 40 (1st Cir. 2020) (internal quotation
marks omitted). However, the majority admits that, in AADC and
Nken, the Court's statement "might not by itself qualify as an
example of 'considered dicta.'" My colleagues thus move on to
attribute significance to the third iteration, in Jennings,
because the reiteration of the AADC dictum there "occurred in the
face of a dissenting opinion" specifically objecting to the
majority's view. See Jennings, 138 S. Ct. at 851; id. at 875-76(Breyer, J., with whom Ginsburg and Sotomayor, JJ., join,
dissenting).14 In such circumstances, my colleagues note, "the
In Jennings, the Supreme Court rejected the contention that
14
several statutory provisions providing for the detention of
noncitizens can be read to require bond hearings after six months
of such detention and at six-month intervals thereafter. See 138
S. Ct. at 846-48. The Court did not decide whether the failure to
provide such hearings might make the provisions unconstitutional
in some circumstances. See id. at 851.
- 37 -
restatement of that dictum would seem to have been considered,
even if bereft of any supporting analysis."
Yet, the opinion in Jennings does not support my
colleagues' inference that the Court's dictum was the product of
meaningful deliberation. The Court's quote from AADC comes shortly
after it noted its "role as 'a court of review, not of first
review,'" and stated its decision to remand the case for the Ninth
Circuit to consider, inter alia, whether there was jurisdiction
for the relief plaintiffs sought for their constitutional claims
in light of § 1252(f)(1). 138 S. Ct. at 851 (quoting Cutter v.
Wilkinson, 544 U.S. 709, 718 n.7 (2005)). But for the unelaborated
reiteration of the AADC dictum, the passage in Jennings to which
my colleagues give so much weight is nothing more than an
instruction to the Ninth Circuit to consider in the first instance
plaintiffs' constitutional claims now that the Court had rejected
the plaintiffs' statutory claims on the merits. Furthermore, in
line with the Court's disclaimer that its role is to review, not
give a "first view," id., the Court simply does not address in any
way Justice Breyer's explanation in his dissent of why § 1252(f)(1)
does not bar class-wide injunctive relief to individuals who are
all currently subject to immigration proceedings.
Indeed, the year after Jennings, the Court again
sidestepped a question of class-wide injunctive relief under
§ 1252(f)(1). See Nielsen v. Preap, 139 S. Ct. 954, 962 (2019)
- 38 -
(stating that "we need not decide" whether the district court
overstepped the bounds of § 1252(f)(1) when it "grant[ed]
injunctive relief for a class of aliens that includes some who
have not yet faced -- but merely 'will face' -- mandatory
detention"); see also id. at 975 (Thomas, J., with whom Gorsuch,
J., joins in part, concurring in part and concurring in the
judgment) (noting that "the Court avoids deciding whether
§ 1252(f)(1) prevented the District Court's injunction here"). In
the face of this history, I do not see how we can treat the issue
of whether § 1252(f)(1) bars class-wide injunctive relief for
individualized constitutional claims as having been resolved by
the Supreme Court. See Gayle v. Monmouth Cnty. Correc. Inst., 12
F.4th 321, 336 (3d Cir. 2021) (noting that the Supreme Court "has
treated . . . as an open question" the availability of class-wide
injunctive relief under § 1252(f)(1) for a class "composed entirely
of individuals who are already in removal proceedings").
Moreover, even if the three "dicta" cases could be seen
as hinting at the Supreme Court's perspective on the issue, it is
inappropriate to premise the resolution of a difficult legal
question on a prediction of what the Supreme Court will do when
directly faced with that question in a future case. Our task is
to apply the precedential holdings and reasoning of the Supreme
Court, not to "speculat[e] about what the Supreme Court might or
might not do in the future." Columbia Nat. Res., Inc. v. Tatum,
- 39 -
58 F.3d 1101, 1107 n.3 (6th Cir. 1995). Hence, I believe we should
be deciding the injunctive relief question in the first instance,
a responsibility that the majority explicitly eschews.15 And, for
the reasons given below, based on the statute's text and "other
tools of statutory construction," In re Fin. Oversight & Mgmt. Bd.
for P.R., 919 F.3d at 128, I agree with the Ninth Circuit's
thoughtful analysis of this issue and its conclusion that
§ 1252(f)(1) does not foreclose the type of injunctive relief
sought by the plaintiffs here. See Padilla v. ICE, 953 F.3d 1134,
1149-51 (9th Cir. 2020), cert. granted, judgment vacated on other
grounds, 141 S. Ct. 1041 (2021)16; but see id. at 1152-53 (Bade,
J., dissenting); Gayle, 12 F.4th at 336-37; Hamama v. Adducci, 912
15 My colleagues properly undertake such an analysis
concerning declaratory relief. They recognize that, in the same
paragraph in Jennings in which the Supreme Court referenced
injunctive relief, the Court "reserved the question whether the
lower courts 'may issue only declaratory relief' under section
1252(f)(1)." Maj. Op., Section IV (quoting Jennings, 138 S. Ct.
at 851). They then go on to resolve that question by looking --
correctly -- to the statutory language. They should have used the
same approach with respect to injunctive relief.
16 In Padilla, the Ninth Circuit upheld a preliminary
injunction ordering the government "to provide bond hearings to a
class of noncitizens who were detained after entering the United
States and were found by an asylum officer to have a credible fear
of persecution." 953 F.3d at 1139. The judgment was vacated and
remanded for further consideration in light of DHS v.
Thuraissigiam, 140 S. Ct. 1959 (2020), which held, inter alia,
that the Due Process Clause does not require more process than
Congress chooses to provide by statute for noncitizens who are
subject to "expedited removal" because they were detained shortly
after unlawful entry into the United States. See id. at 1981-83.
- 40 -
F.3d 869, 877-80 (6th Cir. 2018); Van Dinh v. Reno, 197 F.3d 427,
433 (10th Cir. 1999).17
II.
There is no question that § 1252(f)(1) bars some forms
of injunctive relief. After all, the section is titled "Limit on
injunctive relief." The relevant question in this case, however,
is what Congress meant when it expressly permitted courts to
"enjoin or restrain the operation of" various immigration laws
with respect to "an individual alien against whom proceedings
. . . have been initiated." 8 U.S.C. § 1252(f)(1). The
government's position, as previously described, is that the
reference to "an individual alien" forecloses class actions that
would adjudicate in a single lawsuit the rights of many
individuals. But the statutory language also may sensibly be read
to allow class-wide relief so long as "[e]very member of the
class[]" -- as in this case -- is an "'individual alien against
17 In concluding that § 1252(f)(1) bars class-wide injunctive
relief, the dissent in Padilla, the court in Gayle, and the
majority in Hamama emphasized, inter alia, the provision's
reference to "an individual alien." See Padilla, 953 F.3d at 1156
(Bade, J., dissenting); Gayle, 12 F.4th at 336; Hamama, 912 F.3d
at 877-78. As discussed below, that reference should not be read
to foreclose relief to "individual alien[s]" provided through the
mechanism of a class action. The court in Van Dinh, without
analysis, summarily stated that "§ 1252(f) forecloses jurisdiction
to grant class-wide injunctive relief to restrain operation of
§§ 1221-31 by any court other than the Supreme Court." 197 F.3d
at 433.
- 41 -
whom proceedings . . . have been initiated.'" Jennings, 138 S.
Ct. at 875 (Breyer, J., dissenting).
That alternative reading becomes the more reasonable one
when the statutory text is considered both in context and against
the backdrop of the provision's legislative history. As noted
above, § 1252(f)(1) does not on its face bar class actions or
class-wide injunctive relief. The omission of an explicit bar is
particularly significant because the "neighboring subsection,
§ 1252(e)(1)(B), adopted at the same time by the same Congress,
expressly prohibits class actions." Padilla, 953 F.3d at 1149.
As the Ninth Circuit observed, "Congress knows how to speak
unequivocally when it wants to alter the availability of class
actions in immigration cases. It did not do so here." Id. at
1149-5018; see also Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452
(2002) ("[W]hen 'Congress includes particular language in one
section of a statute but omits it in another section of the same
18 Section 1252(e)(1)(B) bars courts from "certify[ing] a
class under Rule 23 . . . in any action for which judicial review
is authorized under a subsequent paragraph of this subsection."
The provision applies specifically to judicial review of orders
issued under 8 U.S.C. § 1225(b), not to actions brought -- as in
this case -- pursuant to 8 U.S.C. § 1226(a). I recognize that
§ 1252(e)(1)(B) is distinguishable from § 1252(f)(1) in that it
addresses class actions generally, while § 1252(f)(1) is focused
specifically on injunctive relief. See Padilla, 953 F.3d at 1154-
55 (Bade, J., dissenting). However, the contrasting language in
the two provisions is nonetheless relevant evidence that Congress
knows how to expressly bar class-wide relief when it chooses to do
so.
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Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.'" (quoting
Russello v. United States, 464 U.S. 16, 23 (1983))). Particularly
given the express bar that was included in the adjacent provision,
I do not see how we can justifiably "read into the text [of
§ 1252(f)(1)] . . . a broad but silent limitation on the district
court's powers under Federal Rule of Civil Procedure 23," the rule
governing class actions. Padilla, 953 F.3d at 1149; see also id.
(quoting Califano v. Yamasaki, 442 U.S. 682, 700 (1979), for the
proposition that, absent "a direct expression by Congress of its
intent to depart from the usual course of trying 'all suits of a
civil nature' under the Rules established for that purpose, class
relief is appropriate in civil actions brought in federal court").
Like Justice Breyer, see Jennings, 138 S. Ct. at 875-
76, the Ninth Circuit pointed out that reading § 1252(f)(1) to
allow some forms of class-wide injunctive relief would not
"render[] superfluous the word 'individual' in the phrase
'individual alien.'" Padilla, 953 F.3d at 1150. Rather, the
requirement that injunctive relief address the claims of
individuals would be met so long as "the district court has
jurisdiction over the claim of each individual member of the
class." Id. (quoting Califano, 442 U.S. at 701); cf. Brown v.
Plata, 563 U.S. 493, 531 (2011) (concluding that a statute
providing that "a remedy shall extend no further than necessary to
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remedy the violation of the rights of a 'particular plaintiff or
plaintiffs'" does not limit class-wide relief but requires that
the "scope of the order . . . be determined with reference to the
constitutional violations established by the specific plaintiffs
before the court" (quoting 18 U.S.C. § 3626(a)(1)(A))). The
language of § 1252(f)(1) is thus most reasonably read to allow,
rather than prohibit, use of class actions when -- as in this case
-- the district court is faced with "a bevy of similar claims by
individual noncitizens." Maj. Op., Section III.
Indeed, that construction of the provision appears to be
what Congress had in mind. The statute's legislative history, as
set forth by the Padilla court, see 953 F.3d at 1150-51, reveals
an intention by Congress to eliminate the "preemptive challenges"
to immigration laws that had been brought by organizational
plaintiffs, while preserving the courts' "ability to 'issue
injunctive relief pertaining to the case of an individual alien,
and thus protect against any immediate violation of rights,'" id.
(quoting H.R. Rep. No. 104-469(I), at 161 (1996)). In other words,
Congress's apparent objective was to limit the courts' authority
to enjoin procedures adopted "to reform the process of removing
illegal aliens from the U.S.," id. (quoting H.R. Rep. No. 104-
469(I), at 161) (emphasis added), but not to prevent courts from
remedying the ongoing violations of rights asserted by individual
noncitizens, id. at 1151.
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In this case, as the majority opinion notes, the district
court certified two subclasses of already detained noncitizens who
are either awaiting bond hearings or have been denied bond. The
plaintiffs thus seek to vindicate their own rights as individuals.
Section 1252(f)(1)'s "[l]imit on injunctive relief" was not
directed at this type of effort to obtain individualized relief
through a class action.
In sum, given the context and legislative history of
§ 1252(f)(1), the statute is most reasonably construed to allow
the district court to provide injunctive relief collectively,
through the mechanism of a class action, for the plaintiffs'
individual claims. The Supreme Court's unexplained dicta is an
inadequate justification for removing that important tool from the
district court's "customary toolbox" for resolving plaintiffs'
common claims. I therefore dissent from the majority's conclusion
to the contrary.
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