Aleman Gonzalez v. Whitaker ( 2020 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 ESTEBAN ALEMAN GONZALEZ, et al., Case No. 18-cv-01869-JSC 9 Plaintiffs, ORDER RE: PLAINTIFFS’ MOTION 10 v. TO ENFORCE THE COURT’S MARCH 13, 2019 ORDER AND AMEND THE 11 WILLIAM P. BARR, et al., COURT’S JUNE 5, 2018 ORDER 12 Defendants. Re: Dkt. No. 75 13 On June 5, 2018, the Court issued an order granting Plaintiffs’ motions for preliminary 14 injunction and class certification. (Dkt. No. 33.)1 On March 13, 2019, the Court issued an order 15 directing Defendants to provide Plaintiffs a periodic Class List to demonstrate Defendants’ 16 compliance with the June 2018 Order. (Dkt. No. 64.) Now before the Court is Plaintiffs’ motion 17 to enforce the March 2019 Order and amend the June 2018 Order. (Dkt. No. 75.) After careful 18 consideration of the parties’ briefing and having had the benefit of oral argument on June 18, 19 2020, the Court GRANTS IN PART and DENIES IN PART Plaintiffs’ motion. 20 BACKGROUND 21 I. June 2018 Order 22 The June 2018 Order certified a class consisting of: 23 [A]ll individuals who are detained pursuant to 8 U.S.C. § 1231(a)(6) in the Ninth Circuit by, or pursuant to the authority of, the U.S. 24 Immigration and Customs Enforcement (“ICE”), and who have reached or will reach six months in detention, and have been or will 25 be denied a prolonged detention bond hearing before an Immigration Judge (“IJ”). 26 27 1 (Dkt. No. 33 at 4-5.) The Order also issued a preliminary injunction enjoining Defendants from 2 detaining Plaintiffs and the class members pursuant to section 1231(a)(6) for more than 180 days 3 without a bond hearing before an IJ. (Id. at 19.) On July 20, 2018, the Court issued an order, 4 (Dkt. No. 42 (“July 2018 Clarification Order”)), in response to Defendants’ motion for 5 clarification of the June 2018 Order, (Dkt. No. 36). The Court clarified that the class includes 6 only those individuals detained pursuant to section 1231(a)(6) who have live claims before an 7 adjudicative body challenging their removal from the United States. (Dkt. No. 42 at 2.) 8 In November 2018 Plaintiffs filed a motion to enforce the June 2018 Order. (Dkt. No. 46.) 9 The motion sought to broaden the class definition to include individuals transferred outside the 10 jurisdiction of the Ninth Circuit prior to their 180th day in detention, and to compel Defendants to 11 post notice of the June 2018 Order in all immigration detention facilities in the Ninth Circuit. (Id. 12 at 3.) The Court denied the motion, finding that Plaintiffs’ reading of the certified class was too 13 broad and that Plaintiffs’ request to compel posting of the June 2018 Order was premature because 14 Plaintiffs did not allege that Defendants had failed to schedule bond hearings in accordance with 15 the Order. (Dkt. No. 56 at 7.) 16 On April 7, 2020, the Ninth Circuit affirmed the Court’s June 2018 Order. See Aleman 17 Gonzalez v. Barr, 955 F.3d 762 (9th Cir. 2020). 18 II. March 2019 Order 19 The March 2019 Order requires Defendants, in pertinent part, to provide periodic reports 20 (“Class Lists”) every 60 days containing the following information for each class member: (1) full 21 first and last name; (2) alien number; (3) base city name; (4) hearing location name; (5) book in 22 date; (6) date of 180th day in detention; (7) detention facility; (8) attorney of record (if any); (9) 23 attorney firm (if any); (10) bond decision date; and (11) bond decision outcome. (Dkt. No. 64 at ¶ 24 2.) The Order further requires Defendants to provide a cover email with each Class List that 25 provides any additional information needed to explain the lack of a bond decision date entry 26 and/or bond decision outcome entry, or any other clarifying information. (Id.) 27 The March 2019 Order also directed Defendants to provide the Court and Plaintiffs a 1 identify class members; specifically: 2 (1) the criteria with which Defendants analyze the cases of detained individuals to determine whether they fall within the class definition; 3 (2) the process by which Defendants review the cases of detained individuals to determine whether they fall within the class definition; 4 (3) any automated procedures, including software programs, that Defendants utilize in order to identify class members; (4) any manual 5 procedures that Defendants utilize in order to identify class members; (5) the process by which Defendants notify individuals that they will 6 be receiving a bond hearing; and (6) the measures taken by Defendants to ensure that no class member is left unidentified and/or 7 fails to receive a bond hearing. 8 (Id. at ¶ 4.) 9 III. April 2019 Report 10 In response to the March 2019 Order, Defendants filed a status report on April 10, 2019 11 (“April 2019 Report”). (Dkt. No. 67). The Report includes the supporting declarations of: April 12 Jacques, Assistant Field Office Director with U.S. Department of Homeland Security (“DHS”), 13 U.S. Immigration Customs and Enforcement (“ICE”), Enforcement and Removal Operations 14 (“ERO”), San Francisco Field Office, (Dkt. No. 67-1, Ex. A (“Jacques Decl.”)); Brian Muirhead, 15 Supervisory Detention and Deportation Officer with DHS, ICE, ERO, Seattle Field Office, (Dkt. 16 No. 67-2, Ex. B (“Muirhead Decl.”)); Jamison Matuszewski, Deputy Field Office Director, DHS, 17 ICE, ERO, San Diego Field Office, (Dkt. No. 67-3, Ex. C (“Matuszewski Decl.”)); John E. Cantu, 18 Officer in Charge, DHS, ICE, ERO, Florence Detention Center in Florence, Arizona, (Dkt. No. 19 67-4, Ex. D (“Cantu Decl.”)); Matthew Cantrell, Supervisory Detention and Deportation Officer, 20 DHS, ICE, ERO, Salt Lake City Field Office, (Dkt. No. 67-5, Ex. E (“Cantrell Decl.”)); and Mary 21 Cheng, Deputy Chief Immigration Judge, Executive Office for Immigration Review, (Dkt. No. 67- 22 6, Ex. F (“Cheng Decl.”)). 23 The April 2019 Report addresses the six categories of information specified in the March 24 2019 Order. First, as to the criteria with which Defendants analyze the cases of detainees to 25 determine whether they are class members, the Report explains: 26 Defendants identify class members to include aliens who are subject to final administrative orders of removal; are currently held in 27 immigration detention under 8 U.S.C. § 1231(a)(6) within the individualized bond hearing at which the Government has the burden 1 of justifying further detention; have a “live claim” before an Immigration Court, the Board of Immigration Appeals, or a circuit 2 court of appeals; and whose release or removal is not imminent. 3 (Dkt. No. 67 at 3 (citing June 2018 Order; July 2018 Clarification Order; Jacques Decl. ¶ 4; 4 Muirhead Decl. ¶ 2; Matuszewski Decl. ¶ 4; Cantu Decl. ¶ 4; Cantrell Decl. ¶ 4).) 5 Second, as for the process by which Defendants review the cases of detained individuals to 6 determine whether they fall within the class definition, the Report explains that on a weekly basis 7 the ICE ERO office for each area of responsibility “that houses detainees within the Ninth Circuit 8 queries ICE electronic database systems to identify potential class members.” (Id. (citing Jacques 9 Decl. ¶ 6; Muirhead Decl. ¶ 4; Matuszewski Decl. ¶ 6; Cantu Decl. ¶ 6; Cantrell Decl. ¶ 6).) The 10 Report describes the process as follows: 11 Each ERO office first queries and produces a detention report through the ENFORCE detention and removal modules within the 12 Enforcement Integrated Database . . . to identify potential class members within its [area of responsibility]. To avoid multiple reports 13 of the same alien, ERO then deletes the names of the aliens previously reported as class members. Id. ERO then reviews information in 14 ENFORCE to determine the case status of the remaining potential class members. Id. If there is any uncertainty, ERO may search 15 additional ICE Office of Chief Counsel [(“OCC”)] and/or public electronic databases, including Public Access to Court Electronic 16 Records (PACER), and/or confer with the ERO custody case officer and ICE OCC or ICE Office of the Principal Legal Advisor 17 [(“OPLA”)] to identify potential class members. Id. 18 ERO then prepares an Excel spreadsheet identifying potential class members and sends it to ICE OCC and/or ICE OPLA for review. Id. 19 ICE OCC and/or ICE OPLA then reviews the list of potential class members for accuracy and legal sufficiency through ICE and/or 20 PACER databases and may consult with other ICE personnel. Jacques Decl. ¶ 7; Muirhead Decl. ¶ 5; Matuszewski Decl. ¶ 7; Cantu 21 Decl. ¶ 7; Cantrell Decl. ¶ 7. On a weekly basis, ICE OCC and/or ICE OPLA sends a final list of potential class members to the 22 Executive Office for Immigration Review . . . by electronic transmission. Id.; Cheng Decl. ¶ 5. This list includes at least the 23 detainees’ names, alien numbers, and dates of book-in to detention to enable the applicable immigration court to schedule Aleman Gonzalez 24 bond hearings for the identified class members by their 180th day of detention. Cheng Decl. ¶ 5 25 26 (Dkt. No. 67 at 3-4.) 27 Third, as to any automated procedures, including software programs that Defendants [t]here is no single automated procedure by which Defendants can 1 identify class members. Instead, identification is a manual process that often requires ICE ERO to consult multiple databases and other 2 ICE offices, including ICE OCC and ICE OPLA. ICE ERO offices utilize various software programs to gather the data necessary to 3 determine class membership, most notably the ENFORCE detention and removal modules within [the Enforcement Integrated Database]. 4 Jacques Decl. ¶ 6; Muirhead Decl. ¶ 4; Matuszewski Decl. ¶ 6; Cantu Decl. ¶ 6; Cantrell Decl. ¶ 6. In some cases, ERO may also search 5 additional ICE OCC and/or public electronic databases, including [PACER], and/or confer with the ERO custody case officer and ICE 6 OCC or ICE OPLA to identify potential class members. Id. 7 (Dkt. No. 67 at 4-5.) 8 Fourth, as to any manual procedures that Defendants utilize to identify class members, the 9 Report reiterates the manual processes described above. (Id. at 5.) Fifth, as to the process by 10 which Defendants notify class members that they will be receiving a bond hearing, the Report 11 explains that the Executive Office for Immigration Review notifies detainees “using the detention 12 facility mail system.” (Id. at 5 (citing Cheng Decl. ¶ 6).) Notice is also sent to counsel’s address 13 of record if a detainee is represented; counsel may also receive notice by telephone. (Id. at 5-6.) 14 Finally, as to measures taken by Defendants to ensure that no class member is left unidentified or 15 fails to receive a bond hearing, the Report explains: 16 In certain situations where class membership is unclear, ICE ERO personnel will consult with legal counsel at ICE OCC or ICE OPLA. 17 Jacques Decl. ¶ 6; Muirhead Decl. ¶ 4; Matuszewski Decl. ¶ 6; Cantu Decl. ¶ 6; Cantrell Decl. ¶ 6. When ERO offices prepare a list 18 identifying potential class members, ICE OCC and/or ICE OPLA then reviews the list for accuracy and legal sufficiency through ICE and/or 19 PACER databases and may consult with other ICE personnel. Id. Additionally, in some cases, detainees and/or their counsel of record 20 may request an Aleman Gonzalez bond hearing by motion to the immigration court or in person while appearing before an immigration 21 judge. Cheng Decl. ¶ 7. In an abundance of caution, [Executive Office for Immigration Review] personnel in these circumstances 22 may schedule the detainee promptly for a bond hearing to allow an immigration judge to determine the individual’s eligibility for an 23 Aleman Gonzalez bond hearing at the hearing. Id. 24 (Dkt. No. 67 at 6.) 25 IV. Class Lists 26 Defendants have provided Plaintiffs seven Class Lists subsequent to the March 2019 27 Order. (See Dkt. Nos. 74-8, Exs. C-H (Class Lists dated May 13, 2019, July 11, 2019, September 1 (Class List dated May 6, 2020) (filed under seal).) The Class Lists include the headings required 2 under the March 2019 Order; specifically: (1) full first and last name; (2) alien number; (3) base 3 city name; (4) hearing location name; (5) book in date; (6) date of 180th day in detention; (7) 4 detention facility; (8) attorney of record (if any); (9) attorney firm (if any); (10) bond decision 5 date; and (11) bond decision outcome. (Compare id. with Dkt. No. 64 at ¶ 2.) In connection with 6 the Class Lists, Defendants included cover emails providing additional information regarding the 7 bond hearings and status of some class members. (See Dkt. Nos. 75-4, Exs. I-N; & 79-2, Ex. B 8 (redacted versions of documents filed under seal).) 9 DISCUSSION 10 I. Motion to Amend June 2018 Order 11 Plaintiffs seek to amend the June 2018 Order to require that Defendants “(1) schedule bond 12 hearings for eligible class members to take place within 7 days of the class members’ 180th day of 13 detention; (2) notify class members and their counsel of the scheduled bond hearing by the class 14 members’ 165th day in detention, and; (3) explain any delay for class members with bond decision 15 dates that are 7 days or more after their 180th day of detention.” (Dkt. No. 81 at 7.) Plaintiffs also 16 renew their previous request that Defendants post notice of the preliminary injunction in all 17 immigration detention facilities in the Ninth Circuit. (Dkt. No. 75 at 5.) Plaintiffs base their 18 renewed request on Defendants’ purported “pattern of failing to identify class members and 19 delaying the scheduling of bond hearings.” (Id.) 20 Defendants oppose the request to amend the June 2018 Order on the grounds that the 21 additional requirements are unnecessary “because Defendants are working in good faith to identify 22 class members and provide them with bond hearings as promptly as possible.” (Dkt. 79 at 4.) 23 Defendants also assert that the additional requirements sought are excessively burdensome. 24 Before addressing whether amendment is warranted, the Court denies Plaintiffs’ request to 25 require Defendants to “notify class members and their counsel of the scheduled bond hearing by 26 the class members’ 165th day in detention,” (see Dkt. No. 81 at 7), because a detainee is not a 27 class member until the individual reaches his or her 180th day in detention. Indeed, in denying 1 includes only those individuals detained pursuant to section 1231(a)(6) for six months or longer 2 who have not received a bond hearing.” (See Dtk. No. 56 at 4.) Because Plaintiffs’ requested 3 amendment involves individuals who may not become class members, the amendment is not 4 necessary to ensure that class members—those detained for 180 days or longer—receive bond 5 hearings. 6 A. Scheduling Bond Hearings and Explaining Delays 7 As for requiring Defendants to schedule bond hearings within 7 days of a class member’s 8 180th day in detention, the Court concludes that such amendment is not necessary because 9 Defendants demonstrate that in 88% of cases within the last 12 months class members received a 10 bond hearing within 15 days of entering the class. (See Dkt. No. 79 at 8 n.5 (citing Combined 11 Class List Chart identifying 301 class members included in Defendants’ “six most recent class 12 lists” (Dkt. No. 78-8, Ex. C (filed under seal)).) Providing bond hearings to 88% of class 13 members within 15 days of class eligibility does not evince a “pattern” of failing to timely identify 14 class members and schedule bond hearings. It instead shows Defendants’ good faith attempts to 15 comply with the June 2018 preliminary injunction within the confines of a system that is not 16 immune to human error and delay based on the “availability of immigration court dockets, 17 interpreter availability, and availability of the parties and their representatives.” (See Dkt. No. 79 18 at 8.) Indeed, for some delays beyond 15 days the Combined Class List Chart includes 19 explanations such as “data error,” “inadvertent clerical error by agency staff,” and requests for 20 continuance by class members or their counsel. (See Dkt. No. 78-8, Ex. C at 6-7, 9-13.) Such 21 delays would exist regardless of any injunctive requirements this Court could issue. 22 That said, Defendants’ demonstrated ability to hold bond hearings for the vast majority of 23 class members within 15 days of their 180th day of detention shows that it is reasonable to require 24 Defendants to provide an explanation when it is unable to do so. This is especially true given that 25 Defendants’ Combined Class List does not include explanations for the delay in granting bond 26 hearings to 15 out of the 35 class members who received bond hearings between 16 and 113 days 27 after meeting class eligibility. (See Dkt. No. 78-8, Ex. C.) Defendants should explain such delays 1 members and scheduling them for bond hearings in accordance with the June 2018 Order. 2 Accordingly, the June 2018 Order is amended to require Defendants to provide Plaintiffs 3 an explanation in all cases where Defendants are unable to hold a bond hearing within 15 days of a 4 class member’s 180th day of detention. That explanation may be provided in the cover email that 5 accompanies the Class List. 6 B. Posting Notice of the Preliminary Injunction 7 In support of their renewed request to compel Defendants to post notice of the preliminary 8 injunction at immigration detention facilities within the Ninth Circuit, Plaintiffs assert that 9 Defendants’ documented failure to timely identify class members due to a data error in some 10 instances or automatically schedule others for bond hearings upon their 180th day in detention 11 demonstrates that the “request is no longer premature.” (Dkt. No. 75 at 17-18; see also Dkt. No. 12 75-5, Ex. S (Proposed Notice).)2 Defendants oppose the request, in part because Plaintiffs 13 demonstrate only delays in providing the required bond hearings in all but one instance, and the 14 lone exception involved an individual who “fell out of the class and had already been removed 15 before a bond hearing could be held.” (Dkt. No. 79 at 17.) Defendants further assert that “the 16 posting of public notices is unnecessary in this case because Defendants are proactively 17 identifying potential members of the class and automatically scheduling them for bond hearings 18 once they become class members.” (Id.) The Court disagrees. 19 Defendants’ own submissions indicate that in some cases class members’ bond hearings 20 were significantly delayed by over a month—and in one case over three months—due to “data 21 error[s]” or “inadvertent clerical error[s].” (See Dkt. No. 78-8, Ex. C at 6-7, 9-10, 12-13.) In two 22 other cases, bond hearings were delayed by over three months with no explanation. (See id. at 8.) 23 The Court does not expect Defendants to implement the preliminary injunction to perfection; 24 delays and inadvertent errors will occur despite Defendants’ good faith efforts to “automatically” 25 identify class members and schedule them for bond hearings. That said, it is conceivable that 26 27 2 Plaintiffs’ citation to “ECF No. 64-2 at ¶ 5-12” for the proposition that “Defendants have fully 1 posting Plaintiffs’ proposed notice of the preliminary injunction will alert class members to their 2 rights under the June 2018 Order and help mitigate the delays caused by inadvertent errors in 3 identifying class members. Further, requiring Defendants to post notice of the preliminary 4 injunction is a minimal burden that is outweighed by the risk of harm in significantly delaying a 5 class member’s right to a bond hearing upon his or her 180th day in detention. 6 Defendants assert that posting notice is “an inefficient and ineffective way to facilitate 7 compliance with [the] . . . injunction” because the class definition is complex and “it is difficult to 8 imagine that pro se detainees would be able to self-identify class membership.” (Dkt. No. 79 at 9 18.) Thus, Defendants argue, there is “substantial risk that posting public notices would only 10 invite confusion if detainees mistakenly identify themselves as class members and ERO officers, 11 ICE attorneys, and immigration judges are forced to address and deny erroneous claims of class 12 membership and improper requests for bond hearings from individuals who are not class 13 members.” (Id.) Defendants overstate that risk in relation to the harm to class members who are 14 not timely identified as such. 15 First, Plaintiffs’ proposed notice states the requirements for class membership, (see Dkt. 16 No. 75-5, Ex. S at 24), such that a reasonable individual would know whether or not they are class 17 eligible. If a detainee mistakenly believes that he or she is a class member and requests a bond 18 hearing on those grounds, an ERO Officer should be able to quickly dispose of such requests by 19 utilizing the same initial method for identifying class members described in Defendants’ April 20 2019 Report. Second, and more importantly, the burden of addressing an erroneous request for a 21 bond hearing is significantly outweighed by the harm in delaying—in some documented instances 22 by months—a class member’s right to a bond hearing upon their 180th day in detention. 23 Accordingly, the June 2018 is amended to require Defendants to post Plaintiffs’ proposed 24 notice of the preliminary injunction in all immigration detention facilities in the Ninth Circuit. 25 The proposed notice must be amended to read, in pertinent part: “2) You are presently detained 26 under 8 U.S.C. § 1231(a)(6) and have a live claim challenging your detention.” Defendants shall 27 post the notice within 30 days of this Order. 1 II. Motion to Enforce March 2019 Order 2 Plaintiffs move to enforce the March 2019 Order and require Defendants to: (1) “provide 3 Plaintiffs with bond decision outcomes, namely whether a bond was granted or denied, for 197 4 class members”; and (2) “provide Plaintiffs with critical information regarding implementation of 5 the PI and identification of class members” and “include [Defendants’] attorneys at the initial 6 stage of class member identification.” (Dkt. No. 75 at 4, 14, 16.) The Court addresses 7 Defendants’ purported failures to comply with the March 2019 Order in turn. 8 A. Bond Decision Outcomes 9 Plaintiffs argue that the Class Lists provided subsequent to the March 2019 Order are 10 deficient because they do not provide the bond decision outcomes for 197 class members. Based 11 on Defendants’ purported failure to comply, Plaintiffs ask the Court to require Defendants to 12 provide the following “‘bond decision outcome data, i.e., whether a bond was granted or denied 13 for all 197 current class members without such data and [for] all future class members.” (Dkt. No. 14 81 at 17.) 15 The Class Lists contain a heading entitled “Bond Decision,” “Bond Decision Outcome,” or 16 “Bond Decision Description” that lists one of the following for each class member with a “Bond 17 Decision Date”: “No Bond,” “No Action,” “No Change,” “New Amount,” “Own Recognizance,” 18 or “No Jurisdiction.” (See Dkt. Nos. 74-8, Exs. C-H & 78-5, Ex. A.) In response to questions 19 from Plaintiffs’ counsel regarding the “No Action” and “No Change” entries, Defendants’ counsel 20 explained in an August 2019 email: 21 a. “No Action” is the code used to indicate that no action was taken on the bond request. This could happen before, during or at the 22 conclusion of the bond hearing. However, this does not preclude respondent from having another bond hearing after that date, which is 23 why in many cases, . . . there was a subsequent bond hearing. 24 b. “No Change” means that the IJ has made no change to the previous custody determination which may been made by either DHS or an IJ. 25 26 (Dkt. No. 75-6, Ex. T at 3.) 27 Plaintiffs acknowledge Defendants’ explanations, and recognize that since the March 2019 1 class members, with ‘New Amount’ and ‘No Bond’ codes.” (Dkt. No. 81 at 8.) Plaintiffs argue, 2 however, that the “No Action” and “No Change” entries are not “bond decision outcomes” 3 because they do not indicate whether bond was granted or denied. The Court addresses the 4 challenged entries in turn. 5 First, the Court rejects Plaintiffs’ assertion that the March 2019 Order requires Defendants 6 to indicate whether bond was granted or denied. Instead, the Order requires only that Defendants 7 provide a “bond decision outcome,” and the “No Change” entry satisfies that requirement because 8 it means precisely what it says—the class member will continue to be detained under the terms set 9 before the bond hearing. In other words, the class member is in custody under certain terms at the 10 time of the bond hearing and “No Change” clearly indicates the IJ’s decision that the class 11 member will remain in custody under those same terms after the bond hearing. Thus, the Court is 12 satisfied that the “No Change” entry complies with the March 2019 Order because it provides a 13 definitive “outcome.” 14 Plaintiffs’ argument to the contrary is unavailing. Plaintiffs assert that the “No Change” 15 entry “fails to comply with the Court’s order to provide the ‘bond decision outcome,’” because it 16 “does not show the outcome of the initial custody decision that the [IJ] has declined to change.” 17 (Dkt. No. 81 at 9.) However, the March 2019 Order does not require Defendants to provide 18 information regarding a class member’s previous custody determination. And more importantly, it 19 is unclear how such information is even relevant to effectuating the purpose of the June 2018 20 preliminary injunction—providing individualized bond hearings to detainees who meet class 21 eligibility. 22 Second, as for the “No Action” entry, Plaintiffs argue that it fails to indicate “whether the 23 class member ultimately received a bond hearing and whether a bond was granted or denied.” 24 (Dkt. No. 75 at 8.) The Court agrees that the “No Action” entry does not constitute a “bond 25 decision outcome” absent clarifying information regarding an actual outcome. In some cases 26 Defendants have provided additional information in the cover emails that accompany the Class 27 Lists regarding class members whose bond decision is entered as “No Action.” However, 1 information is insufficient. For example, for one class member with a “No Action” code 2 Defendants’ cover email states: “A bond hearing was held on 2/28/20 but continued at the request 3 of respondent’s counsel. The hearing was reset and held on 3/20/20.” (Dkt. No. 79-2, Ex. B at 2 4 (redacted version of document filed under seal).) Merely indicating that the bond hearing was 5 held on a certain date does not provide a bond decision outcome, and Defendants’ explanation to 6 Plaintiffs that the “No Action” code “indicate[s] that no action was taken on the bond request” is 7 meaningless without information explaining why no action was taken or whether the class member 8 was scheduled for a subsequent hearing that resulted in an actual bond decision outcome. Indeed, 9 Defendants’ explanation to Plaintiffs suggests that in some instances the “No Action” code may 10 reflect that the bond hearing was not actually held on the date indicated on the Class List. (See 11 Dkt. No. 75-6, Ex. T at 3 (noting that “no action” may be taken before, during or at the conclusion 12 of the bond hearing[,]” and “in many cases, . . . there was a subsequent bond hearing”) (emphasis 13 added).). Simply put, “No Action” does not constitute a “bond decision outcome” as required 14 under the March 2019 Order. 15 Defendants’ opposition asserts that, in general, no action is taken on a bond request “if, for 16 example, the individual sought and received a continuance or asked to withdraw the bond, 17 enabling the class member to pursue bond at a later time.” (Dkt. No. 79 at 12.) That is a 18 reasonable explanation. However, Defendants must provide that information in their cover emails 19 for every class member with a “No Action” code. A review of Defendants’ Class Lists and 20 corresponding cover emails indicates that Defendants have not done so. 21 At the June 2018 hearing, Defendants noted that the Court’s March 2019 Order adopted 22 Defendants’ proposed language regarding the content of the Class Lists verbatim; thus, 23 Defendants argued that they did not expect that the Court would find that the “No Action” code 24 was insufficient. Defendants are correct that the following language from the March 2019 Order 25 is taken directly from Defendants’ proposed order, filed March 7, 2019: 26 For each individual identified on the Class List described in paragraph 1, above, Defendants shall include the following information in 27 addition to the individual’s full first and last name: (1) Alien number; Record (if any); (8) Attorney Firm (if any); (9) Bond decision date; 1 and (10) Bond decision outcome. If any additional information is needed to explain the lack of bond decision date entry and/or bond 2 decision outcome entry, or otherwise, Defendants will provide a cover email with the report including such additional information. 3 4 (Compare Dkt. No. 63-1 at 3 (Defendants’ March 7, 2019 proposed order) with Dkt. No. 64 at ¶ 2 5 (Court’s March 2019 Order).) However, neither Defendants’ briefing filed in connection with 6 their March 2019 proposed order nor the proposed order itself references the “No Action” code. 7 (See generally Dkt. Nos. 63 & 63-1.) Further, the parties did not discuss the “No Action” code at 8 the January 2019 case management conference during which the Court addressed Plaintiffs’ 9 request for periodic compliance reports. (See generally Dkt. No. 61.) In other words, this is the 10 first time the Court has been asked to assess the “No Action” code. Thus, any “expectations” 11 Defendants had regarding its validity in relation to the Court’s March 2019 Order are irrelevant. 12 As stating “No Action” does not provide a bond decision outcome, and as the March 2019 13 order requires Defendant to provide a cover email with additional information for every entry that 14 lacks a bond decision outcome, Defendant has not complied with the March 2019 Order. 15 Accordingly, Defendants must provide Plaintiffs with an updated list of every class member 16 whose bond decision outcome was entered as “No Action.” The list must provide the actual bond 17 decision outcome for each of those class members (i.e., “No Bond,” “No Change,” “New 18 Amount,” “Own Recognizance,” or “No Jurisdiction”). Going forward, Defendants’ Class Lists 19 must provide clarifying information for every “No Action” entry, including whether the class 20 member has been rescheduled for a bond hearing and if so, the date of that hearing. Defendants 21 shall then include that class member on the Class List that covers the time period when he or she 22 receives an actual bond decision outcome. 23 B. Information Regarding Class Identification and Preliminary Injunction Implementation 24 25 Plaintiffs assert that Defendants’ April 2019 Report and supporting declarations submitted 26 in response to the March 2019 Order: 27 omit critical information on the process by which class members are which ERO officers, who are not attorneys, identify potential class 1 members; the process and criteria by which ICE OCC and/or ICE OPLA review the list of potential class members prepared by ERO; 2 and how Defendants track and identify if and when their detention authority has shifted to Section 1231(a)(6), the primary marker by 3 which class members are identified and provided bond hearings. 4 (Dkt. No. 75 at 15.) Thus, Plaintiffs argue that Defendants must be ordered to provide the 5 following: (1) “any remedial, supplemental, and prior agency guidance regarding the 6 implementation of the Court’s injunction and orders”; (2) “the criteria by which class members are 7 identified within the referenced databases, the process and criteria by which ERO officers identify 8 potential class members, the process and criteria by which ICE OCC and/or ICE OPLA review the 9 list of potential class members prepared by ERO, and the process by which Defendants identify 10 that their detention authority has shifted to Section 1231(a)(6)”; and (3) “attorney oversight of 11 ERO’s production of each potential class membership list to ensure that no class members are 12 erroneously not scheduled for hearings.” (Dkt. No. 81 at 17.) 13 In determining whether the requested information is necessary, the Court must first 14 determine whether Defendants’ April 2019 Report fails to provide the information specified in the 15 March 2019 Order. It does not. The Report and supporting declarations are sufficiently detailed 16 and provide the requisite information; specifically, Defendants describe the criteria used for 17 determining class membership, (see Dkt. No. 67 at 3), the processes by which Defendants both 18 review the cases of detained individuals to determine whether they are class members and notify 19 those individuals that they will receive a bond hearing, (see id. at 3-5), and the measures 20 Defendants take to ensure that class members are identified, (see id. at 6). That those measures in 21 practice are not completely error proof does not indicate that Defendants have failed to comply 22 with the Court’s March 2019 Order. 23 Accordingly, the Court denies Plaintiffs’ motion to enforce the March 2019 Order to the 24 extent it seeks to require that Defendants produce additional information regarding its processes 25 for identifying class members and implementing the preliminary injunction. Further, the Court 26 denies the motion to the extent it seeks to require Defendants to provide “attorney oversight of 27 ERO’s production of each potential class membership list” because the record shows that the vast 1 Plaintiffs fail to demonstrate a “pattern” of noncompliance with either the March 2019 Order or 2 the June 2018 Order warranting such further injunctive relief. 3 III. Administrative Motions to Seal 4 Pursuant to Civil Local Rules 7-11 and 79-5, and the stipulated Protective Order in this 5 case, (Dkt. No. 41), both parties move to file under seal portions of their briefing and exhibits filed 6 in connection with the underlying motion to enforce. (Dkt. Nos. 74; 78; 80.) The information 7 consists of “the names and alien registration numbers . . . of absent class members who have not 8 publicly disclosed or authorized disclosure of [that] identifying information.” (Dkt. Nos. 74 & 80 9 at 3.) The Protective Order designates the material as confidential. (Dkt. No. 41 at ¶ 2.) 10 A party seeking to seal court filings must comply with the Civil Local Rules, which 11 provide that sealing is appropriate only where the requesting party “establishes that the document, 12 or portions thereof, are privileged, protectable as a trade secret or otherwise entitled to protection 13 under the law[,]” and narrowly tailors its requests only to sealable material and redacts the 14 documents accordingly. Civil L.R. 79-5(b),(d). Further, a party seeking to seal a document filed 15 in connection with a motion related to the merits of a case must overcome the “strong presumption 16 in favor of public access” to judicial records by meeting the “compelling reasons” standard. 17 Kamakana v. City and Cty. of Honolulu, 447 F.3d 1171, 1178-79 (9th Cir. 2006); see also Ctr. for 18 Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1098, 1101 (9th Cir. 2016) (noting that the 19 “compelling reasons” test applies “to most judicial records,” including documents attached to 20 nondispositive motions that are “more than tangentially related to the merits of a case”) (internal 21 quotation marks and citation omitted). Plaintiffs’ motions to seal “[a]ssum[e] the ‘compelling 22 reason’ standard applies here,” (see Dkt. Nos. 74 & 80 at 4), and the Court agrees that Plaintiffs’ 23 underlying motion is related to the merits of the case. 24 In support of sealing, Plaintiffs submit the declaration of Plaintiffs’ counsel Jesse 25 Newmark, who attests that “[m]any of the absent class members . . . are in withholding only 26 proceedings, and therefore particularly vulnerable to harm from disclosure of their identities.” 27 (Dkt. No. 74-1 at ¶ 8 & 80-1 at ¶ 7.) Thus, Plaintiffs assert that compelling reasons justify sealing 1 them to harm and retaliation in their home countries if deported. (Dkt. Nos. 74 & 80 at 4-5.) 2 Defendants submit the declaration of counsel Matthew Seamon, who attests that the parties met 3 and conferred and agree that the information should be filed under sealed. (Dkt. No. 78-1 at ¶ 6.) 4 The Court agrees that sealing is warranted. The parties’ declarations in support of sealing 5 comply with the Civil Local Rules and the proposed redactions are narrowly tailored to only the 6 names and alien registration numbers of absent class members, many of whom are in withholding 7 only proceedings. Compelling reasons justify sealing that identifying information because the 8 information has no bearing on the merits of this action, and the public’s interest in the identities of 9 absent class members is minimal to non-exist and outweighed by the risk of harm to those 10 individuals given that many are seeking asylum. 11 Accordingly, the Court grants the parties’ administrative motions to seal in full. 12 CONCLUSION 13 For the reasons set forth above, the Court GRANTS IN PART and DENIES IN PART 14 Plaintiffs’ motion. The June 2018 Order is amended to require Defendants to provide an 15 explanation in every instance in which a class member’s bond hearing is not held within 15 days 16 after the class member’s 180th day of detention. Further, within 30 days, Defendants shall post 17 Plaintiffs’ proposed notice of the preliminary injunction (with the amended language discussed 18 above) in all immigration detention facilities in the Ninth Circuit. 19 Defendants must also provide Plaintiffs a list containing updated bond decision outcomes 20 for every class member whose bond decision was initially entered as “No Action.” Defendants’ 21 future Class Lists must provide clarifying information for every “No Action” entry, including 22 whether or not the class member has been rescheduled for a bond hearing and if so, the date of that 23 hearing. Defendants shall then include that class member on the Class List that covers the time 24 period when he or she receives an actual bond decision outcome. 25 // 26 // 27 // 1 Plaintiffs’ motion is denied in all other respects. 2 IT IS SO ORDERED. 3 Dated: June 19, 2020 4 5 ne JAQQUELINE SCOTT CORL 6 United States Magistrate Judge 7 8 9 10 11 13 14 Oo 15 Q 16 & = 17 Z 18 19 20 21 22 23 24 25 26 27 28