Alejandro Rodriguez v. Timothy Robbins , 804 F.3d 1060 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEJANDRO RODRIGUEZ; ABDIRIZAK Nos. 13-56706
ADEN FARAH; JOSE FARIAS 13-56755
CORNEJO; YUSSUF ABDIKADIR;
ABEL PEREZ RUELAS, for D.C. No.
themselves and on behalf of a class 2:07-cv-03239-
of similarly situated individuals, TJH-RNB
Petitioners-Appellees/
Cross-Appellants,
OPINION
and
EFREN OROZCO,
Petitioner,
v.
TIMOTHY ROBBINS, Field Office
Director, Los Angeles District,
Immigration and Customs
Enforcement; JEH JOHNSON,
Secretary, Homeland Security;
LORETTA E. LYNCH, Attorney
General; WESLEY LEE, Assistant
Field Office Director, Immigration
and Customs Enforcement; RODNEY
PENNER, Captain, Mira Loma
Detention Center; SANDRA
HUTCHENS, Sheriff of Orange
County; NGUYEN, Officer, Officer-
in-Charge, Theo Lacy Facility;
2 RODRIGUEZ V. ROBBINS
DAVIS NIGHSWONGER, Captain,
Commander, Theo Lacy Facility;
MIKE KREUGER, Captain, Operations
Manager, James A. Musick Facility;
ARTHUR EDWARDS, Officer-in-
Charge, Santa Ana City Jail;
RUSSELL DAVIS, Jail Administrator,
Santa Ana City Jail; JUAN P.
OSUNA,* Director, Executive Office
for Immigration Review,
Respondents-Appellants/
Cross-Appellees.
*
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, Senior District Judge, Presiding
Argued and Submitted
July 24, 2015—Pasadena, California
Filed October 28, 2015
Before: Kim McLane Wardlaw and Ronald M. Gould,
Circuit Judges and Sam E. Haddon,** District Judge.
Opinion by Judge Wardlaw
*
Juan P. Osuna is substituted for his predecessor, Thomas G. Snow, as
Director, Executive Office for Immigration Review, pursuant to Federal
Rule of Appellate Procedure 43(c).
**
The Honorable Sam E. Haddon, District Judge for the U.S. District
Court for the District of Montana, sitting by designation.
RODRIGUEZ V. ROBBINS 3
SUMMARY***
Immigration
The panel affirmed in part and reversed in part the district
court’s order granting summary judgment and a permanent
injunction in a class action lawsuit by non-citizens within
the Central District of California challenging their
prolonged detentions under civil immigration detention
statutes 8 U.S.C. §§ 1225(b), 1226(a), 1226(c), and 1231(a)
without individualized bond hearings or determinations to
justify continued detention.
The panel affirmed the district court’s permanent
injunction insofar as it required automatic bond hearings and
required Immigration Judges to consider alternatives to
detention. The panel also held that IJs must consider the
length of detention and provide bond hearings every six
months for class members detained longer than twelve
months, but rejected the class’s request for additional
procedural requirements.
The panel held that subclass members subject to
prolonged detention under mandatory detention statutes
§§ 1225(b) and 1226(c) are entitled to bond hearings, and that
subclass members subject to discretionary detention under
§ 1226(a) are entitled to automatic bond hearings after six
months of detention. In an issue this court had not previously
addressed, the panel held that the government must provide
periodic bond hearings every six months for non-citizens to
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 RODRIGUEZ V. ROBBINS
challenge their continued detention. The panel, however,
concluded that no certified class-member is within the
§ 1231(a) subclass, defined as non-citizens detained pending
completion of removal proceedings, and the panel therefore
reversed the summary judgment and permanent injunction as
to individuals detained under § 1231(a).
The panel remanded for the district court to enter a
revised injunction consistent with its instructions.
COUNSEL
Sarah Stevens Wilson (argued), Theodore William Atkinson,
Hans Harris Chen, Alisa Beth Klein, Robert I. Lester, Jaynie
R. Lilley, Benjamin C. Mizer, Nicole Prairie, and Erez
Reuveni, United States Department of Justice, Washington,
D.C., for Respondents-Appellants/Cross-Appellees.
Ahilan Thevanesan Arulanantham (argued), Michael
Kaufman (argued), Peter Jay Eliasberg, ACLU Foundation of
Southern California, Los Angeles, California; Judy
Rabinovitz, Michael K.T. Tan, ACLU Immigrants’ Rights
Project, New York, New York; Cecillia D. Wang, ACLU
Immigrants’ Rights Project, San Francisco, California;
Jayashri Srikantiah, Stanford Law School Mills Legal Clinic,
Stanford, California; Sean Ashley Commons, Wen Shen,
Sidley Austin LLP, Los Angeles, California; Steven Andrew
Ellis, Goodwin Procter LLP, Los Angeles, California, for
Petitioners-Appellees/Cross-Appellants.
Nina Rabin, University of Arizona College of Law, Tucson,
Arizona, for Amici Curiae Social Science Researchers and
Professors.
RODRIGUEZ V. ROBBINS 5
James H. Moon, James J. Farrell, Nathan M. Saper, Latham
& Watkins LLP, Los Angeles, California, for Amici Curiae
National Association of Criminal Defense Lawyers and the
Judge David L. Bazelon Center for Mental Health Law.
Sarah H. Paoletti, University of Pennsylvania Law School
Transnational Legal Clinic, Philadelphia, Pennsylvania, for
Amici Curiae International Law Professors and Human
Rights Clinicians and Clinical Programs.
Holly Stafford Cooper, University of California Davis Law
School Immigration Law Clinic, Davis, California, for
Amicus Curiae University of California Davis Law School
Immigration Law Clinic.
OPINION
WARDLAW, Circuit Judge:
This is the latest decision in our decade-long examination
of civil, i.e. non-punitive and merely preventative, detention
in the immigration context. As we noted in our prior decision
in this case, Rodriguez v. Robbins (Rodriguez II), 715 F.3d
1127 (9th Cir. 2013), thousands of immigrants to the United
States are locked up at any given time, awaiting the
conclusion of administrative and judicial proceedings that
will determine whether they may remain in this country. In
2014, U.S. Immigration and Customs Enforcement (“ICE”)
removed 315,943 individuals, many of whom were detained
6 RODRIGUEZ V. ROBBINS
during the removal process.1 According to the most recently
available statistics, ICE detains more than 429,000
individuals over the course of a year, with roughly 33,000
individuals in detention on any given day.2
Alejandro Rodriguez, Abdirizak Aden Farah, Jose Farias
Cornejo, Yussuf Abdikadir, Abel Perez Ruelas, and Efren
Orozco (“petitioners”) represent a certified class of non-
citizens who challenge their prolonged detention pursuant to
8 U.S.C. §§ 1225(b), 1226(a), 1226(c), and 1231(a) without
individualized bond hearings and determinations to justify
their continued detention. Their case is now on appeal for the
third time. After a three-judge panel of our court reversed the
district court’s denial of petitioners’ motion for class
certification, and after our decision affirming the district
court’s entry of a preliminary injunction, the district court
granted summary judgment to the class and entered a
permanent injunction. Under the permanent injunction, the
government must provide any class member who is subject to
“prolonged detention”—six months or more—with a bond
hearing before an Immigration Judge (“IJ”). At that hearing,
the government must prove by clear and convincing evidence
that the detainee is a flight risk or a danger to the community
to justify the denial of bond. The government appeals from
that judgment. We affirm in part and reverse in part.
1
U.S. Immigration and Customs Enforcement, Enforcement and
Removal Operations Report 7 (2014), https://www.ice.gov/doclib/
about/offices/ero/pdf/2014-ice-immigration-removals.pdf.
2
U.S. Immigration and Customs Enforcement, ERO Facts and
Statistics 3 (2011), http://www.ice.gov/doclib/foia/reports/ero-facts-and-
statistics.pdf.
RODRIGUEZ V. ROBBINS 7
I. Background
On May 16, 2007, Alejandro Garcia commenced this case
by filing a petition for a writ of habeas corpus in the Central
District of California. Garcia’s case was consolidated with a
similar case filed by Alejandro Rodriguez, and the petitioners
moved for class certification. The motion was denied on
March 21, 2008.
A three-judge panel of our court reversed the district
court’s order denying class certification.3 Rodriguez I,
591 F.3d 1105. We held that the proposed class satisfied
each requirement of Federal Rule of Civil Procedure 23: The
government conceded that the class was sufficiently
numerous; each class member’s claim turned on the common
question of whether detention for more than six months
without a bond hearing raises serious constitutional concerns;
Rodriguez’s claims were sufficiently typical of the class’s
because “the determination of whether [he] is entitled to a
bond hearing will rest largely on interpretation of the statute
authorizing his detention”; and Rodriguez, through his
counsel, adequately represented the class. Id. at 1122–25.
The panel also noted that “any concern that the differing
statutes authorizing detention of the various class members
will render class adjudication of class members’ claims
impractical or undermine effective representation of the
class” could be addressed through “the formation of
subclasses.” Id. at 1123.
3
Judge Betty Binns Fletcher was on the panel as originally constituted
and authored the opinion in Rodriguez v. Hayes (Rodriguez I), 578 F.3d
1032 (9th Cir. 2009), amended by 591 F.3d 1105 (9th Cir. 2010). Judge
Wardlaw was selected by random draw to replace Judge B. Fletcher on the
panel following her death in 2012.
8 RODRIGUEZ V. ROBBINS
The government petitioned our court for panel rehearing
or rehearing en banc. In response, the panel amended the
opinion to expand its explanation of why the Illegal
Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”) does not bar certification of the class and, with
that amendment, unanimously voted to deny the
government’s petition. The full court was advised of the
suggestion for rehearing en banc, and no judge requested a
vote on whether to rehear the matter. See Fed. R. App. P. 35.
The government did not file a petition for certiorari in the
United States Supreme Court.
On remand, the district court certified a class defined as:
all non-citizens within the Central District of
California who: (1) are or were detained for
longer than six months pursuant to one of the
general immigration detention statutes
pending completion of removal proceedings,
including judicial review, (2) are not and have
not been detained pursuant to a national
security detention statute, and (3) have not
been afforded a hearing to determine whether
their detention is justified.
The district court also approved the proposed subclasses,
which correspond to the four statutes under which the class
members are detained—8 U.S.C. §§ 1225(b), 1226(a),
1226(c), and 1231(a). The class does not include suspected
terrorists, who are detained pursuant to 8 U.S.C. § 1537.
Additionally, because the class is defined as non-citizens who
are detained “pending completion of removal proceedings,”
it excludes any detainee subject to a final order of removal.
RODRIGUEZ V. ROBBINS 9
On September 13, 2012, the district court entered a
preliminary injunction that applied to class members detained
pursuant to two of these four “general immigration detention
statutes”—§§ 1225(b) and 1226(c). Under the preliminary
injunction, the government was required to “provide each
[detainee] with a bond hearing” before an IJ and to “release
each Subclass member on reasonable conditions of
supervision . . . unless the government shows by clear and
convincing evidence that continued detention is justified
based on his or her danger to the community or risk of flight.”
The government appealed, and on April 16, 2013, we
affirmed. See Rodriguez II, 715 F.3d 1127. We applied the
Court’s preliminary injunction standard set forth in Winter v.
Natural Resources Defense Council, Inc., 555 U.S. 7 (2008),
which requires the petitioner to “establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable
harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the
public interest.” Rodriguez II, 715 F.3d at 1133.
Evaluating petitioners’ likelihood of success on the
merits, we began with the premise that “[f]reedom from
imprisonment—from government custody, detention, or other
forms of physical restraint—lies at the heart of the liberty that
[the Due Process] Clause protects.” Id. at 1134 (alterations
in original) (quoting Zadvydas v. Davis, 533 U.S. 678, 690
(2001)). “Thus, the Supreme Court has held that the
indefinite detention of a once-admitted alien ‘would raise
serious constitutional concerns.’” Id. (quoting Zadvydas,
533 U.S. at 682).
Addressing those concerns, we recognized that we were
not writing on a clean slate: “[I]n a series of decisions since
10 RODRIGUEZ V. ROBBINS
2001, ‘the Supreme Court and this court have grappled in
piece-meal fashion with whether the various immigration
detention statutes may authorize indefinite or prolonged
detention of detainees and, if so, may do so without providing
a bond hearing.’” Id. (quoting Rodriguez I, 591 F.3d at
1114). First, in Zadvydas v. Davis, 533 U.S. 678 (2001), the
Supreme Court resolved statutory and due process challenges
to indefinite detention under 8 U.S.C. § 1231(a)(6), which
governs detention beyond the ninety-day removal period,
where removal was not practicable—for one petitioner
because he was stateless, and for another because his home
country had no repatriation treaty with the United States. See
id. at 684–86. Drawing on civil commitment jurisprudence,
the Court reasoned:
A statute permitting indefinite detention of an
alien would raise a serious constitutional
problem. The Fifth Amendment’s Due
Process Clause forbids the Government to
“depriv[e]” any “person . . . of . . . liberty . . .
without due process of law.” Freedom from
imprisonment—from government custody,
detention, or other forms of physical
restraint—lies at the heart of the liberty that
Clause protects. See Foucha v. Louisiana,
504 U.S. 71, 80, 112 S. Ct. 1780, 118 L. Ed. 2d
437 (1992). And this Court has said that
government detention violates that Clause
unless the detention is ordered in a criminal
proceeding with adequate procedural
protections, see United States v. Salerno,
481 U.S. 739, 746, 107 S. Ct. 2095, 95
L. Ed. 2d 697 (1987), or, in certain special and
“narrow” nonpunitive “circumstances,”
RODRIGUEZ V. ROBBINS 11
Foucha, supra, at 80, 112 S. Ct. 1780, where
a special justification, such as harm-
threatening mental illness, outweighs the
“individual’s constitutionally protected
interest in avoiding physical restraint.”
Kansas v. Hendricks, 521 U.S. 346, 356,
117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997).
Id. at 690 (alterations in original). To avoid those “serious
constitutional concerns,” the Court held that § 1231(a)(6)
does not authorize indefinite detention without a bond
hearing. Id. at 682, 699. Noting that the “proceedings at
issue here are civil, not criminal,” id. at 690, the Court
“construe[d] the statute to contain an implicit ‘reasonable
time’ limitation,” id. at 682, and recognized six months as a
“presumptively reasonable period of detention,” id. at 701.
Although in dissent, Justice Kennedy, joined by Chief
Justice Rehnquist, disagreed with the majority’s application
of the canon of constitutional avoidance and argued that the
holding would improperly interfere with international
repatriation negotiations, Justice Kennedy recognized that
“both removable and inadmissible aliens are entitled to be
free from detention that is arbitrary or capricious.” Id. at 721.
Justice Kennedy further noted that although the government
may detain non-citizens “when necessary to avoid the risk of
flight or danger to the community,” due process requires
“adequate procedures to review their cases, allowing persons
once subject to detention to show that through rehabilitation,
new appreciation of their responsibilities, or under other
standards, they no longer present special risks or danger if put
at large.” Id.
12 RODRIGUEZ V. ROBBINS
Second, in Demore v. Kim, 538 U.S. 510 (2003), the
Court addressed a due process challenge to mandatory
detention under 8 U.S.C. § 1226(c), which applies to non-
citizens convicted of certain crimes. Id. at 517–18. After
discussing Congress’s reasons for establishing mandatory
detention, namely, high rates of crime and flight by
removable non-citizens, id. at 518–21, the Court affirmed its
“longstanding view that the Government may constitutionally
detain deportable aliens during the limited period necessary
for their removal proceedings,” id. at 526. Distinguishing
Zadvydas, the Court in Demore stressed that detention under
§ 1226(c) has “a definite termination point” and typically
“lasts for less than the 90 days we considered presumptively
valid in Zadvydas.” Id. at 529. Although the Court therefore
upheld mandatory detention under § 1226(c), Justice
Kennedy’s concurring opinion, which created the majority,
reasoned that “a lawful permanent resident alien such as
respondent could be entitled to an individualized
determination as to his risk of flight and dangerousness if the
continued detention became unreasonable or unjustified.” Id.
at 532.
After Zadvydas and Demore, our court decided several
cases that provided further guidance for our analysis in
Rodriguez II. In Tijani v. Willis, 430 F.3d 1241 (9th Cir.
2005), we held that the constitutionality of detaining a lawful
permanent resident under § 1226(c) for over 32 months was
“doubtful.” Id. at 1242. “To avoid deciding the
constitutional issue, we interpret[ed] the authority conferred
by § 1226(c) as applying to expedited removal of criminal
aliens” and held that “[t]wo years and eight months of process
is not expeditious.” Id. We therefore remanded Tijani’s
habeas petition to the district court with directions to grant
RODRIGUEZ V. ROBBINS 13
the writ unless the government provided a bond hearing
before an IJ within sixty days. Id.
We next considered civil detention in the immigration
context in Casas-Castrillon v. Department of Homeland
Security (Casas), 535 F.3d 942 (9th Cir. 2008). There, a
lawful permanent resident who had been detained for nearly
seven years under § 1226(c) and then § 1226(a) sought
habeas relief while his petition for review of his removal
order was pending before our court. Id. at 944–48. Applying
Demore, we reasoned that § 1226(c) “authorize[s] mandatory
detention only for the ‘limited period of [the non-citizen’s]
removal proceedings,’ which the Court estimated ‘lasts
roughly a month and a half in the vast majority of cases in
which it is invoked, and about five months in the minority of
cases in which the alien chooses to appeal’ his removal order
to the [Board of Immigration Appeals (“BIA”)].” Id. at 950
(quoting Demore, 538 U.S. at 529). We therefore concluded
that § 1226(c)’s mandatory detention provision applies only
during administrative removal proceedings—i.e. until the
BIA affirms a removal order. Id. at 951. From that point
until the circuit court has “rejected [the applicant’s] final
petition for review or his time to seek such review expires,”
the government has discretionary authority to detain the non-
citizen pursuant to § 1226(a). Id. at 948. We noted, however,
that “[t]here is a difference between detention being
authorized and being necessary as to any particular person.”
Id. at 949. Because the Court’s holding in Demore turned on
the brevity of mandatory detention under § 1226(c), we
concluded that “the government may not detain a legal
permanent resident such as Casas for a prolonged period
without providing him a neutral forum in which to contest the
necessity of his continued detention.” Id. at 949.
14 RODRIGUEZ V. ROBBINS
Soon after, in Singh v. Holder, 638 F.3d 1196 (9th Cir.
2011), we clarified the procedural requirements for bond
hearings held pursuant to our decision in Casas (“Casas
hearings”). In light of “the substantial liberty interest at
stake,” we held that “due process requires a contemporaneous
record of Casas hearings,” and that the government bears the
burden of proving “by clear and convincing evidence that an
alien is a flight risk or a danger to the community to justify
denial of bond.” Id. at 1203, 1208. To evaluate whether the
government has met its burden, we instructed IJs to consider
the factors set forth in In re Guerra, 24 I. & N. Dec. 37 (BIA
2006), in particular “the alien’s criminal record, including the
extensiveness of criminal activity, the recency of such
activity, and the seriousness of the offenses.” Singh, 638 F.3d
at 1206 (quoting Guerra, 24 I. & N. Dec. at 40).
Finally, in Diouf v. Napolitano (Diouf II), 634 F.3d 1081
(9th Cir. 2011), we extended the procedural protections
established in Casas to individuals detained under
§ 1231(a)(6). Id. at 1086. We held that “prolonged detention
under § 1231(a)(6), without adequate procedural protections,”
like prolonged detention under § 1226(a), “would raise
‘serious constitutional concerns.’” Id. (quoting Casas,
535 F.3d at 950). To address those concerns, we held that
“an alien facing prolonged detention under § 1231(a)(6) is
entitled to a bond hearing before an immigration judge and is
entitled to be released from detention unless the government
establishes that the alien poses a risk of flight or a danger to
the community.” Id. at 1092.
In Diouf II, we also adopted a definition of “prolonged”
detention—detention that “has lasted six months and is
expected to continue more than minimally beyond six
RODRIGUEZ V. ROBBINS 15
months”—for purposes of administering the Casas bond
hearing requirement. Id. at 1092 n.13. We reasoned that:
When detention crosses the six-month
threshold and release or removal is not
imminent, the private interests at stake are
profound. Furthermore, the risk of an
erroneous deprivation of liberty in the absence
of a hearing before a neutral decisionmaker is
substantial. The burden imposed on the
government by requiring hearings before an
immigration judge at this stage of the
proceedings is therefore a reasonable one.
Id. at 1091–92.
Applying these precedents to Rodriguez class members
detained under § 1226(c), which requires civil detention of
non-citizens previously convicted of certain crimes who have
already served their state or federal periods of incarceration,
we have concluded that “the prolonged detention of an alien
without an individualized determination of his dangerousness
or flight risk would be constitutionally doubtful.” Rodriguez
II, 715 F.3d at 1137 (quoting Casas, 535 F.3d at 951). To
avoid these constitutional concerns, we held that “§ 1226(c)’s
mandatory language must be construed ‘to contain an implicit
reasonable time limitation, the application of which is subject
to federal-court review.’” Id. at 1138 (quoting Zadvydas,
533 U.S. at 682). “[W]hen detention becomes prolonged,”
i.e., at the six-month mark, Ҥ 1226(c) becomes
inapplicable”; the government’s authority to detain the non-
citizen shifts to § 1226(a), which provides for discretionary
detention; and detainees are then entitled to bond hearings.
Id.
16 RODRIGUEZ V. ROBBINS
In so holding, we rejected the government’s attempt to
distinguish Casas on the basis that “Casas concerned an alien
who had received an administratively final removal order,
sought judicial review, and obtained a remand to the BIA,”
whereas this case involves “aliens awaiting the conclusion of
their initial administrative proceedings.” Id. at 1139. We
found that this argument reflected “a distinction without a
difference”: “‘Regardless of the stage of the proceedings, the
same important interest is at stake—freedom from prolonged
detention.’” Id. (quoting Diouf II, 634 F.3d at 1087).
We also noted that our conclusion was consistent with the
decisions of the two other circuits that have directly
addressed this issue. In Diop v. ICE/Homeland Security,
656 F.3d 221 (3d Cir. 2011), the Third Circuit, applying the
canon of constitutional avoidance, construed § 1226(c)
to“authorize[] detention for a reasonable amount of time,
after which the authorities must make an individualized
inquiry into whether detention is still necessary to fulfill the
statute’s purposes of ensuring that an alien attends removal
proceedings and that his release will not pose a danger to the
community.” Id. at 231. Applying that holding to the facts
of the case, the Third Circuit held that the petitioner’s
detention, which had lasted nearly three years, “was
unconstitutionally unreasonable and, therefore, a violation of
the Due Process Clause.” Id. at 233. Although the court
declined to adopt a categorical definition of a “reasonable
amount of time” to detain a non-citizen without a bond
hearing, it read Demore as we do—to connect the
constitutionality of detention to its length and to authorize
detention only for a “limited time.” Id. at 233–34.
Likewise, in Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003),
the Sixth Circuit held that, to avoid a constitutional problem,
RODRIGUEZ V. ROBBINS 17
removable non-citizens may be detained under § 1226(c) only
“for a reasonable period of time required to initiate and
conclude removal proceedings promptly.” Id. at 273.
Finding that the petitioner’s 500-day-long detention was
“unreasonable,” the Sixth Circuit affirmed the district court’s
grant of a writ of habeas corpus. Id. at 265, 271. While
maintaining that a “bright-line time limitation, as imposed in
Zadvydas, would not be appropriate for the pre-removal
period,” the court recognized that Demore’s holding “rel[ies]
on the fact that Kim, and persons like him, will normally have
their proceedings completed within a short period of time and
will actually be deported, or will be released.” Id. at 271.
As to the Rodriguez subclass detained under § 1225(b),
we found “no basis for distinguishing between” non-citizens
detained under that section and under § 1226(c). Rodriguez
II, 715 F.3d at 1143. The cases relied upon by the
government for the proposition that arriving aliens are
entitled to lesser due process protections—namely,
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206
(1953) and Barrera–Echavarria v. Rison, 44 F.3d 1441 (9th
Cir. 1995) (en banc)—were decided under pre-IIRIRA law
and, as such, were inapposite. Id. at 1140–41. We therefore
held that “to the extent detention under § 1225(b) is
mandatory, it is implicitly time-limited.” Id. at 1144. As we
had with § 1226(c), we explained that “the government’s
detention authority does not completely dissipate at six
months; rather, the mandatory provisions of § 1225(b) simply
expire at six months, at which point the government’s
authority to detain the non-citizen would shift to § 1226(a),
which is discretionary and which we have already held
requires a bond hearing.” Id. (citing Casas, 535 F.3d at 948).
18 RODRIGUEZ V. ROBBINS
After establishing that class members detained under
§ 1226(c) and § 1225(b) are entitled to bond hearings after six
months of detention, we clarified that the procedural
requirements set forth in Singh apply to those hearings. Id. at
1139, 1144 (citing Singh, 638 F.3d at 1203). These
requirements include proceedings before “a neutral IJ” at
which “the government bear[s] the burden of proof by clear
and convincing evidence,” id. at 1144 (citing Singh, 638 F.3d
at 1203–04), a lower burden of proof than that required to
sustain a criminal charge.
Having found that the class was likely to succeed on the
merits, we turned to the other preliminary injunction factors.
We found that the class members “clearly face irreparable
harm in the absence of the preliminary injunction” because
“the deprivation of constitutional rights unquestionably
constitutes irreparable injury.” Id. (citations omitted). The
preliminary injunction safeguards constitutional rights by
ensuring that “individuals whom the government cannot
prove constitute a flight risk or a danger to public safety, and
sometimes will not succeed in removing at all, are not
needlessly detained.” Id. at 1145. Similarly, we found that
the balance of equities favored the class members because
“needless prolonged detention” imposes “major hardship,”
whereas the government “cannot suffer harm from an
injunction that merely ends an unlawful practice or reads a
statute as required to avoid constitutional concerns.” Id.
Finally, we held that the preliminary injunction was
consistent with the public interest, which is “implicated when
a constitutional right has been violated,” and “benefits from
a preliminary injunction that ensures that federal statutes are
construed and implemented in a manner that avoids serious
constitutional questions.” Id. at 1146. We therefore affirmed
the district court’s order.
RODRIGUEZ V. ROBBINS 19
During the pendency of Rodriguez II, the parties
conducted discovery, and class counsel adduced extensive
evidence detailing the circumstances under which class
members are detained. The parties then filed cross-motions
for summary judgment, and the petitioners moved for a
permanent injunction to extend and expand the preliminary
injunction.
On August 6, 2013, after we issued our decision in
Rodriguez II, the district court granted summary judgment to
the class members and entered a permanent injunction. The
permanent injunction applies to class members detained
under any of the four civil “general immigration detention
statutes”—§§ 1225(b), 1226(a), 1226(c), and 1231(a)—and
requires the government to provide each detainee with a bond
hearing by his 195th day of detention. Applying our
decisions in Casas, Singh, and Rodriguez II, the district court
further ordered that bond hearings occur automatically, that
detainees receive “comprehendible notice,” that the
government bear the burden of proving “by clear and
convincing evidence that a detainee is a flight risk or a danger
to the community to justify the denial of bond,” and that
hearings are recorded. However, the district court declined
to order IJs to consider the length of detention or the
likelihood of removal during bond hearings, or to provide
periodic hearings for detainees who are not released after
their first hearing.
The government now appeals from the entry of the
permanent injunction, arguing that the district court—and
we—erred in applying the canon of constitutional avoidance
to each of the statutes at issue. Relying on the Supreme
Court’s decisions in Zadvydas and Demore, the government
argues that none of the subclasses are categorically entitled to
20 RODRIGUEZ V. ROBBINS
bond hearings after six months of detention. Accordingly, the
government contends that we should decertify the class and
instead permit as-applied challenges to individual instances
of prolonged detention, which could occur only through
habeas proceedings. Petitioners counter that Rodriguez II is
the law of the case and law of the circuit, requiring us to
affirm the permanent injunction as to the § 1225(b) and
§ 1226(c) subclasses, and that non-citizens detained pursuant
to § 1226(a) and § 1231(a) are entitled to bond hearings for
reasons similar to those discussed in Rodriguez II. Petitioners
cross-appeal the district court’s order as to the procedural
requirements for bond hearings; they argue that the district
court erred in declining to require that IJs consider the
likelihood of removal and the total length of detention, and in
declining to require that non-citizens detained for twelve or
more months receive periodic bond hearings every six
months.
II. Nature of Civil Immigration Detention
Class members spend, on average, 404 days in
immigration detention. Nearly half are detained for more
than one year, one in five for more than eighteen months, and
one in ten for more than two years. In some cases, detention
has lasted much longer: As of April 28, 2012, when the
government generated data to produce to the petitioners, one
class member had been detained for 1,585 days, approaching
four and a half years of civil confinement.4
4
The government challenges the accuracy of these figures, which are
drawn from petitioners’ expert report, based on disagreements with that
expert’s methodology. Using the government’s preferred data set and
process generates an average detention length of 347 days and a range of
180 to 1,037 days of civil detention for each non-citizen. Under either set
RODRIGUEZ V. ROBBINS 21
Non-citizens who vigorously pursue claims for relief from
removal face substantially longer detention periods than those
who concede removability. Requesting relief from an IJ
increases the duration of class members’ detention by an
average of two months; appealing a claim to the BIA adds, on
average, another four months; and appealing a BIA decision
to the Ninth Circuit typically leads to an additional eleven
months of confinement. Class members who persevere
through this lengthy process are often successful: About 71%
of class members have sought relief from removal, and
roughly one-third of those individuals prevailed. However,
many detainees choose to give up meritorious claims and
voluntarily leave the country instead of enduring years of
immigration detention awaiting a judicial finding of their
lawful status.
Class members frequently have strong ties to this country:
Many immigrated to the United States as children, obtained
legal permanent resident status, and lived in this country for
as long as twenty years before ICE initiated removal
proceedings. As a result, hundreds of class members are
married to U.S. citizens or lawful permanent residents, and
have children who were born in this country. Further, many
class members hold steady jobs—including as electricians,
auto mechanics, and roofers—to provide for themselves and
their families. At home, they are caregivers for young
children, aging parents, and sick or disabled relatives. To the
extent class members have any criminal record—and many
have no criminal history whatsoever—it is often limited to
minor controlled substances offenses. Accordingly, when
class members do receive bond hearings, they often produce
of figures, typical class members are detained for well over 180 days. The
differences in precise numbers are not material to our decision.
22 RODRIGUEZ V. ROBBINS
glowing letters of support from relatives, friends, employers,
and clergy attesting to their character and contributions to
their communities.
Prolonged detention imposes severe hardship on class
members and their families. Civil immigration detainees are
treated much like criminals serving time: They are typically
housed in shared jail cells with no privacy and limited access
to larger spaces or the outdoors. Confinement makes it more
difficult to retain or meet with legal counsel, and the
resources in detention facility law libraries are minimal at
best, thereby compounding the challenges of navigating the
complexities of immigration law and proceedings. In
addition, visitation is restricted and is often no-contact,
dramatically disrupting family relationships. While in
detention, class members have missed their children’s births
and their parents’ funerals. After losing a vital source of
income, class members’ spouses have sought government
assistance, and their children have dropped out of college.
Lead petitioner Alejandro Rodriguez’s story is
illustrative. Rodriguez came to the United States as an infant
and has lived here continuously since then. Rodriguez is a
lawful permanent resident of the United States, and his entire
immediate family—including his parents, siblings, and three
young children—also resides in the United States as citizens
or lawful permanent residents. Before his removal
proceedings began, Rodriguez worked as a dental assistant.
In 2003, however, Rodriguez was convicted of possession of
a controlled substance and sentenced to five years of
probation and no jail time. He had one previous conviction,
for “joyriding.”
RODRIGUEZ V. ROBBINS 23
In 2004, ICE commenced removal proceedings and
subjected Rodriguez to civil detention. An IJ determined that
Rodriguez’s prior conviction for “joyriding,” i.e. driving a
stolen vehicle, qualified as an “aggravated felony” that
rendered him ineligible for relief in the form of cancellation
of removal, and therefore ordered him removed. Rodriguez
appealed the IJ’s decision to the BIA, which affirmed, and
then to the Ninth Circuit. In July 2005, a three-judge panel of
our court granted the government’s motion to hold
Rodriguez’s case in abeyance until the Supreme Court
decided a related case, Gonzales v. Penuliar, 549 U.S. 1178
(2007), which issued eighteen months later, in January 2007.
In Penuliar, the Supreme Court vacated our court’s opinion
and remanded for further consideration in light of Gonzales
v. Duenas-Alvarez, 549 U.S. 183 (2007), which held that
violating a California statute prohibiting taking a vehicle
without the owner’s consent qualifies as a “theft offense.”
Between July 2005 and January 2007, while Rodriguez’s case
was in abeyance, ICE conducted four custody reviews on
Rodriguez and repeatedly determined that Rodriguez was
required to remain in detention until our court issued a
decision on the merits of his claim. In mid-2007, about a
month after Rodriguez had moved for class certification,
however, ICE released him. At that point, Rodriguez had
been detained for 1,189 days, roughly three years and three
months. In April 2008, in the related case on remand from
the Supreme Court, our court held that driving a stolen
vehicle did not qualify as an aggravated felony. Penuliar v.
Mukasey, 528 F.3d 603, 614 (9th Cir. 2008). On motion of
the parties, we then remanded Rodriguez’s petition to the
BIA, which granted his application for cancellation of
removal, vindicating his right to lawfully remain in the
United States.
24 RODRIGUEZ V. ROBBINS
III. Standard of Review
“We review a grant of summary judgment de novo.”
Pavoni v. Chrysler Grp., LLC, 789 F.3d 1095, 1098 (9th Cir.
2015). “A permanent injunction ‘involves factual, legal, and
discretionary components,’ so we ‘review a decision to grant
such relief under several different standards.’” Vietnam
Veterans of Am. v. C.I.A., 791 F.3d 1122, 1129 (9th Cir.
2015) (quoting Momot v. Mastro, 652 F.3d 982, 986 (9th Cir.
2011)). “We review legal conclusions . . . de novo, factual
findings for clear error, and the scope of the injunction for
abuse of discretion.” Id.
IV. Discussion
In resolving whether the district court erred in entering
the permanent injunction, we consider, first, petitioners’
entitlement to bond hearings and, second, the procedural
requirements for such hearings. Based on our precedents, we
hold that the canon of constitutional avoidance requires us to
construe the statutory scheme to provide all class members
who are in prolonged detention with bond hearings at which
the government bears the burden of proving by clear and
convincing evidence that the class member is a danger to the
community or a flight risk. However, we also conclude that
individuals detained under § 1231(a) are not members of the
certified class. We affirm the district court’s order insofar as
it requires automatic bond hearings and requires IJs to
consider alternatives to detention because we presume, like
the district court, that IJs are already doing so when
RODRIGUEZ V. ROBBINS 25
determining whether to release a non-citizen on bond.5
Because the same constitutional concerns arise when
detention approaches another prolonged period, we hold that
IJs must provide bond hearings periodically at six month
intervals for class members detained for more than twelve
months. However, we reject the class’s suggestion that we
mandate additional procedural requirements.
A. Civil Detention
“In our society liberty is the norm, and detention prior to
trial or without trial is the carefully limited exception.”
United States v. Salerno, 481 U.S. 739, 755 (1987). Civil
detention violates the Due Process Clause except “in certain
special and narrow nonpunitive circumstances, where a
special justification, such as harm-threatening mental illness,
outweighs the individual’s constitutionally protected interest
in avoiding physical restraint.” Zadvydas, 533 U.S. at 690
(citations omitted). Consistent with these principles, the
Supreme Court has—outside of the immigration
context—found civil detention constitutional without any
individualized showing of need only when faced with the
unique exigencies of global war or domestic insurrection. See
Ludecke v. Watkins, 335 U.S. 160 (1948); Korematsu v.
5
See 8 C.F.R. § 241.4(f) (listing factors that Department of Homeland
Security (“DHS”) must “weigh[] in considering whether to recommend
further detention or release of a detainee,” including the detainee’s
criminal history, evidence of recidivism or rehabilitation, ties to the United
States, history of absconding or failing to appear for immigration or other
proceedings, and the likelihood that the detainee will violate the
conditions of release); id. § 1236.1(d)(1) (authorizing IJs to “detain the
alien in custody, release the alien, and determine the amount of bond, if
any, under which the respondent may be released” and to “ameliorat[e] the
conditions” of release imposed by DHS).
26 RODRIGUEZ V. ROBBINS
United States, 323 U.S. 214 (1944); Moyer v. Peabody,
212 U.S. 78 (1909).6 And even in those extreme
circumstances, the Court’s decisions have been widely
criticized. See, e.g., Eugene V. Rostow, The Japanese
American Cases—A Disaster, 54 Yale L.J. 489 (1945). In all
contexts apart from immigration and military detention, the
Court has found that the Constitution requires some
individualized process and a judicial or administrative finding
that a legitimate governmental interest justifies detention of
the person in question.
For example, in numerous cases addressing the civil
detention of mentally ill persons, the Court has consistently
recognized that such commitment “constitutes a significant
deprivation of liberty,” and so the state “must have a
constitutionally adequate purpose for the confinement.”
Jones v. United States, 463 U.S. 354, 361 (1983) (citations
omitted). Further, the “nature and duration of commitment”
must “bear some reasonable relation to the purpose for which
the individual is committed.” Jones, 463 U.S. at 368 (citation
omitted).
Accordingly, the state may detain a criminal defendant
found incapable of standing trial, but only for “the reasonable
period of time necessary to determine whether there is a
substantial probability that he will attain [the] capacity [to
stand trial] in the foreseeable future.” Jackson v. Indiana,
6
For a thorough discussion of civil detention jurisprudence and its
bearing on the constitutionality of civil detention in the immigration
context, see Farrin R. Anello, Due Process and Temporal Limits on
Mandatory Immigration Detention, 65 Hastings L.J. 363 (2014), and
David Cole, In Aid of Removal: Due Process Limits on Immigration
Detention, 51 Emory L.J. 1003 (2002).
RODRIGUEZ V. ROBBINS 27
406 U.S. 715, 738 (1972). At all times, the individual’s
“commitment must be justified by progress toward that goal.”
Id. Likewise, the state may detain a criminal defendant
following an acquittal by reason of insanity in order to “treat
the individual’s mental illness and protect him and society
from his potential dangerousness.” Jones, 463 U.S. at 368.
However, the detainee “is entitled to release when he has
recovered his sanity or is no longer dangerous.” Id.; see also
Foucha v. Louisiana, 504 U.S. 71, 78 (1992) (“[K]eeping
Foucha against his will in a mental institution is improper
absent a determination in civil commitment proceedings of
current mental illness and dangerousness.”). Further,
although the state may detain sexually dangerous individuals
even after they have completed their criminal sentences, such
confinement must “take[] place pursuant to proper procedures
and evidentiary standards.” Kansas v. Hendricks, 521 U.S.
346, 357 (1997). To “justify indefinite involuntary
commitment,” the state must prove both “dangerousness” and
“some additional factor, such as a ‘mental illness’ or ‘mental
abnormality.’” Id. at 358 (collecting cases).
Similarly, the Court has held that pretrial detention of
individuals charged with “the most serious of crimes” is
constitutional only because, under the Bail Reform Act, an
“arrestee is entitled to a prompt detention hearing” to
determine whether his confinement is necessary to prevent
danger to the community. Salerno, 481 U.S. at 747. Further,
“the maximum length of pretrial detention is limited by the
stringent time limitations of the Speedy Trial Act.” Id.; see
also Schall v. Martin, 467 U.S. 253, 263 (1984) (upholding a
statute that “permits a brief pretrial detention based on a
finding of a ‘serious risk’ that an arrested juvenile may
commit a crime before his return date”).
28 RODRIGUEZ V. ROBBINS
In addition, the Court has held that incarceration of
individuals held in civil contempt is consistent with due
process only where the contemnor receives adequate
procedural protections and the court makes specific findings
as to the individual’s ability to comply with the court order.
See Turner v. Rogers, 131 S. Ct. 2507, 2520 (2011). If
compliance is impossible—for instance, if the individual
lacks the financial resources to pay court-ordered child
support—then contempt sanctions do not serve their purpose
of coercing compliance and therefore violate the Due Process
Clause. See id.
Early cases upholding immigration detention policies
were a product of their time. See Carlson v. Landon,
342 U.S. 524 (1952) (McCarthy Era deportation of
communists); Ludecke v. Watkins, 335 U.S. 160 (1948)
(removal of German enemy aliens during World War II);
Wong Wing v. United States, 163 U.S. 228 (1896) (Chinese
exclusion). Yet even these cases recognized some limits on
detention of non-citizens pending removal. Such detention
may not be punitive—Congress may not, for example, impose
sentences of “imprisonment at hard labor” on non-citizens
awaiting deportation, Wong Wing, 163 U.S. at 235—and it
must be supported by a legitimate regulatory purpose. Under
these principles, the Court authorized the “detention or
temporary confinement” of Chinese-born non-citizens
“pending the inquiry into their true character, and while
arrangements were being made for their deportation.” Id.
The Court also upheld executive detention of enemy aliens
after the cessation of active hostilities because deportation is
“hardly practicable” in the midst of war, and enemy aliens’
“potency for mischief” continues “even when the guns are
silent.” Ludecke, 335 U.S. at 166. Similarly, the Court
approved detention of communists to limit their
RODRIGUEZ V. ROBBINS 29
“opportunities to hurt the United States during the pendency
of deportation proceedings.” Carlson, 342 U.S. at 538. The
Court recognized, however, that “purpose to injure could not
be imputed generally to all aliens subject to deportation.” Id.
at 538. Rather, if the Attorney General wished to exercise his
discretion to deny bail, he was required to do so at a hearing,
the results of which were subject to judicial review. Id. at
543.
More recently, the Supreme Court has drawn on decades
of civil detention jurisprudence to hold that “[a] statute
permitting indefinite detention of an alien would raise a
serious constitutional problem.” Zadvydas, 533 U.S. at 690.
Although the state has legitimate interests in “ensuring the
appearance of aliens at future immigration proceedings” and
“protecting the community,” post–removal period detention
does not uniformly “‘bear[] [a] reasonable relation to the
purpose for which the individual [was] committed.’” Id.
(second and third alterations in original) (quoting Jackson,
406 U.S. at 738). To avoid constitutional concerns, the Court
construed 8 U.S.C. § 1231(a)(6), the statute governing
post–removal period detention, to “limit[] an alien’s
post-removal-period detention to a period reasonably
necessary to bring about that alien’s removal from the United
States.” Id. at 689. Detention beyond that point requires
“strong procedural protections” and a finding that the non-
citizen is “specially dangerous.” Id. at 691.
Soon after Zadvydas, the Court rejected a due process
challenge to mandatory detention under 8 U.S.C. § 1226(c),
which applies to non-citizens convicted of certain crimes.
Demore, 538 U.S. at 517–18. While affirming its
“longstanding view that the Government may constitutionally
detain deportable aliens during the limited period necessary
30 RODRIGUEZ V. ROBBINS
for their removal proceedings,” id. at 526, the Court
emphasized that detention under § 1226(c) was
constitutionally permissible because it has “a definite
termination point” and typically “lasts for less than . . . 90
days,” id. at 529.
Since Zadvydas and Demore, our court has “grappled in
piece-meal fashion with whether the various immigration
detention statutes may authorize indefinite or prolonged
detention of detainees and, if so, may do so without providing
a bond hearing.” Rodriguez II, 715 F.3d at 1134 (quoting
Rodriguez I, 591 F.3d at 1114). As we recognized in Casas,
“prolonged detention without adequate procedural protections
would raise serious constitutional concerns.” Casas,
535 F.3d at 950; see also Rodriguez II, 715 F.3d at 1144
(discussing “the constitutional concerns raised by prolonged
mandatory detention”); Singh, 638 F.3d at 1208 (“The private
interest here—freedom from prolonged detention—is
unquestionably substantial.”); Diouf II, 634 F.3d at 1085
(“When the period of detention becomes prolonged, ‘the
private interest that will be affected by the official action’ is
more substantial; greater procedural safeguards are therefore
required.”) (quoting Mathews v. Eldridge, 424 U.S. 319, 335
(1976)). We have therefore held that non-citizens detained
pursuant to § 1226(a) and § 1231(a)(6) are entitled to bond
hearings before an IJ when detention becomes prolonged.
See Casas, 535 F.3d at 949 (requiring bond hearings for
individuals detained under § 1226(a)); Diouf II, 634 F.3d at
1084 (extending Casas to individuals detained under
§ 1231(a)(6)).
While the government falsely equates the bond hearing
requirement to mandated release from detention or facial
invalidation of a general detention statute, our precedents
RODRIGUEZ V. ROBBINS 31
make clear that there is a distinction “between detention
being authorized and being necessary as to any particular
person.” Casas, 535 F.3d at 949. Bond hearings do not
restrict the government’s legitimate authority to detain
inadmissible or deportable non-citizens; rather, they merely
require the government to “justify denial of bond” with clear
and convincing “evidence that an alien is a flight risk or
danger to the community.” Singh, 638 F.3d at 1203. And, in
the end, the government is required only to establish that it
has a legitimate interest reasonably related to continued
detention; the discretion to release a non-citizen on bond or
other conditions remains soundly in the judgment of the
immigration judges the Department of Justice employs.
Prior decisions have also clarified that detention becomes
“prolonged” at the six-month mark. In Zadvydas, the
Supreme Court recognized six months as a “presumptively
reasonable period of detention.” 533 U.S. at 701. By way of
background, the Court noted that in 1996, Congress had
“shorten[ed] the removal period from six months to 90 days.”
Id. at 698. The Court then explained:
While an argument can be made for confining
any presumption to 90 days, we doubt that
when Congress shortened the removal period
to 90 days in 1996 it believed that all
reasonably foreseeable removals could be
accomplished in that time. We do have
reason to believe, however, that Congress
previously doubted the constitutionality of
detention for more than six months.
Consequently, for the sake of uniform
administration in the federal courts, we
recognize that period.
32 RODRIGUEZ V. ROBBINS
Id. at 701 (citation omitted); see also Clark v. Martinez,
543 U.S. 371, 386 (2005) (applying “the 6–month
presumptive detention period” the Supreme Court “prescribed
in Zadvydas”); cf. Nadarajah v. Gonzales, 443 F.3d 1069,
1078–79 (9th Cir. 2006) (discussing the Patriot Act’s
requirement that “detention of suspected terrorists or other
threats to national security” be reviewed “at six month
intervals”). Following Zadvydas, we have defined detention
as “prolonged” when “it has lasted six months and is expected
to continue more than minimally beyond six months.” Diouf
II, 634 F.3d at 1092 n.13.7 At that point, we have explained,
“the private interests at stake are profound,” and “the risk of
an erroneous deprivation of liberty in the absence of a hearing
before a neutral decisionmaker is substantial.” Id. at 1092.
B. Entitlement to a Bond Hearing
With this well-established precedent of the Supreme
Court and our Court in mind, we review the district court’s
grant of summary judgment and entry of a permanent
injunction. We consider, in turn, whether individuals
detained under §§ 1226(c), 1225(b), 1226(a), and 1231(a) are
entitled to bond hearings after they have been detained for six
months.
1. The § 1226(c) Subclass
Section 1226(c) requires that the Attorney General detain
any non-citizen who is inadmissible or deportable because of
7
As we noted in Rodriguez II, this holding does not conflict with the
Supreme Court’s decision in Demore, 538 U.S. 510, which approved only
“brief period[s]” of detention without individualized determinations as to
dangerousness and flight risk. Demore, 538 U.S. at 513, 523.
RODRIGUEZ V. ROBBINS 33
his criminal history upon that person’s release from
imprisonment, pending proceedings to remove him from the
United States.8 Detention under § 1226(c) is mandatory.
Individuals detained under that section are not eligible for
release on bond or parole, see 8 U.S.C. § 1226(a); they may
be released only if the Attorney General deems it “necessary”
for witness protection purposes, id. § 1226(c)(2).
An individual detained under § 1226(c) may ask an IJ to
reconsider whether the mandatory detention provision applies
to him, see 8 C.F.R. § 1003.19(h)(2)(ii), but such review is
limited in scope and addresses only whether the individual is
properly included in a category of non-citizens subject to
mandatory detention based on his criminal history. See
generally In re Joseph, 22 I. & N. Dec. 799 (BIA 1999). At
a “Joseph hearing,” a detainee “may avoid mandatory
detention by demonstrating that he is not an alien, was not
8
Mandatory detention under § 1226(c) applies to non-citizens who are
inadmissible on account of having committed a crime involving moral
turpitude or a controlled substance offense; having multiple criminal
convictions with an aggregate sentence of five years or more of
confinement; having connections to drug trafficking, prostitution,
commercialized vice, money laundering, human trafficking, or terrorism;
having carried out severe violations of religious freedom while serving as
a foreign government official; or having been involved in serious criminal
activity and asserting immunity from prosecution. It also applies to non-
citizens who are deportable on account of having been convicted of two
or more crimes involving moral turpitude, an aggravated felony, a
controlled substance offense, certain firearm-related offenses, or certain
other miscellaneous crimes; having committed a crime of moral turpitude
within a certain period of time since their date of admission for which a
sentence of one year or longer has been imposed; or having connections
to terrorism. See 8 U.S.C. § 1226(c) (cross-referencing 8 U.S.C.
§§ 1182(a)(2), 1227(a)(2)(A)(ii), 1227(a)(2)(A)(iii), 1227(a)(2)(B),
1227(a)(2)(C), 1227(a)(2)(D), 1227(a)(2)(A)(i), 1182(a)(3)(B),
1227(a)(4)(B)).
34 RODRIGUEZ V. ROBBINS
convicted of the predicate crime, or that the [DHS] is
otherwise substantially unlikely to establish that he is in fact
subject to mandatory detention.” Demore, 538 U.S. at 514
n.3. “A determination in favor of an alien” at a Joseph
hearing “does not lead to automatic release,” Joseph, 22 I. &
N. Dec. at 806, because the government retains discretionary
authority to detain the individual under § 1226(a). Instead,
such a determination allows the IJ to consider granting bond
under the § 1226(a) standards, namely, whether the detainee
would pose a danger or flight risk if released. See id.; see
also Demore, 538 U.S. at 532 (Kennedy, J., concurring).
As a result of § 1226(c)’s mandatory language and the
limited review available through a Joseph hearing,
individuals are often detained for years without adequate
process. See, e.g., Tijani, 430 F.3d at 1242 (lawful permanent
resident detained for more than two and a half years).
Members of the § 1226(c) subclass also tend to be detained
for longer periods than other class members: The longest-
detained class member was confined for 1,585 days and
counting as of April 28, 2012, and the average subclass
member faces detention for 427 days. These lengthy
detention times bear no relationship to the seriousness of
class members’ criminal history or the lengths of their
previously served criminal sentences. In several instances
identified by class counsel, a class member was sentenced to
one to three months in prison for a minor controlled
substances offense, then endured one or two years in
immigration detention. Nor do these detention durations bear
any relation to the merits of the subclass members’ claims:
Of the § 1226(c) subclass members who apply for relief from
removal, roughly 40% are granted such relief, a rate even
higher than that of the overall class.
RODRIGUEZ V. ROBBINS 35
In Rodriguez II, we held that “the prolonged detention of
an alien [under § 1226(c)] without an individualized
determination of his dangerousness or flight risk would be
constitutionally doubtful.” 715 F.3d at 1137–38 (quoting
Casas, 535 F.3d at 951). To avoid these “constitutional
concerns, § 1226(c)’s mandatory language must be construed
‘to contain an implicit reasonable time limitation.’” Id. at
1138 (quoting Zadvydas, 533 U.S. at 682). Accordingly, at
the six-month mark, “when detention becomes prolonged,
§ 1226(c) becomes inapplicable,” and “the Attorney
General’s detention authority rests with § 1226(a).” Id.
(citation omitted). Under Casas, those detainees are then
entitled to a bond hearing. See id. (discussing Casas,
535 F.3d at 951).
Contrary to the government’s argument, this holding is
consistent with the text of § 1226(c), which requires that the
government detain certain non-citizens but does not mandate
such detention for any particular length of time. See id. at
1138–39 (The government “does not argue that reading an
implicit temporal limitation on mandatory detention into the
statute is implausible. Indeed, it could not do so, because
such an argument is foreclosed by our decisions in Tijani and
Casas.”) (alterations in original) (citation omitted). Our
holding is also consistent with the Supreme Court’s decision
in Demore, which turned on the brevity of the detention at
issue. See Demore, 538 U.S. at 513 (holding that Congress
may require detention “for the brief period necessary for [a
non-citizen’s] removal proceedings”); id. at 526 (discussing
the “longstanding view that the Government may
constitutionally detain deportable aliens during the limited
period necessary for their removal proceedings”); id. at 530
n.12 (emphasizing the “very limited time of the detention at
stake under § 1226(c)”).
36 RODRIGUEZ V. ROBBINS
Since Rodriguez II, no intervening changes in the law
have affected our conclusions. Neither the Supreme Court
nor our Circuit has had occasion to reexamine these issues,
and the Third and Sixth Circuits have not changed the
positions they adopted in Diop and Ly, respectively. See
Chavez-Alvarez v. Warden, York Cnty. Prison, 783 F.3d 469,
478 (3d Cir. 2015) (finding petitioner’s detention
unreasonable under the Diop framework); cf. Hernandez v.
Prindle, No. 15-10, 2015 WL 1636138, at *7 (E.D. Ky. Apr.
13, 2015) (citing Ly for the proposition that a “short” period
of detention “to effectuate effective removal,” “does not raise
due process concerns”), appeal dismissed (6th Cir. 2015).
Moreover, district courts have relied on Rodriguez II in
resolving numerous habeas petitions filed by immigration
detainees. See, e.g., Castaneda v. ICE Field Office Dir., No.
14-1427, 2015 WL 71584, at *2–3 (W.D. Wash. Jan. 6, 2015)
(addressing whether the petitioner’s bond hearing complied
with the requirements of Rodriguez II); Garcia-Perez v.
Kane, No. 13-01870, 2014 WL 3339794, at *2 (D. Ariz. July
8, 2014) (noting that, under Rodriguez II, “detention always
becomes prolonged at six months,” but denying a habeas
petition because petitioner “has not been detained for longer
than six months”); Lopez v. Napolitano, No. 12-01750, 2014
WL 1091336, at *4–6 (E.D. Cal. Mar. 18, 2014) (extending
Rodriguez II to a non-citizen detained under § 1226(a)
pending reinstatement of a previously issued removal order);
Franco-Gonzalez v. Holder, No. 10-02211, 2013 WL
3674492, at *10–13 (C.D. Cal. Apr. 23, 2013) (applying
Rodriguez II in holding that a class of non-citizens detained
under §§ 1225(b), 1226, and 1231 are entitled to bond
hearings after six months of detention).
RODRIGUEZ V. ROBBINS 37
Thus, Rodriguez II is law of the case and law of the
circuit. As we recently explained, the “law of the case
doctrine” provides that “a court will generally refuse to
reconsider an issue that has already been decided by the same
court or a higher court in the same case.” Gonzalez v.
Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc),
aff’d sub nom. Arizona v. Inter Tribal Council of Ariz., Inc.,
133 S. Ct. 2247 (2013); see also Gonzales v. U.S. Dep’t of
Homeland Sec., 712 F.3d 1271, 1278 (9th Cir. 2013);
Bernhardt v. Los Angeles County, 339 F.3d 920, 924 (9th Cir.
2003). Likewise, pursuant to the “‘law of the circuit’ rule,”
“a published decision of this court constitutes binding
authority which ‘must be followed unless and until overruled
by a body competent to do so.’” Gonzalez, 677 F.3d at 389
n.4 (quoting Hart v. Massanari, 266 F.3d 1155, 1170 (9th
Cir. 2001)); see also United States v. Johnson, 256 F.3d 895,
914 (9th Cir. 2001) (en banc) (“[W]here a panel confronts an
issue germane to the eventual resolution of the case, and
resolves it after reasoned consideration in a published
opinion, that ruling becomes the law of the circuit . . . .”).
The “‘general rule’ is that our decisions ‘at the
preliminary injunction phase do not constitute the law of the
case.’” Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1075 n.5
(9th Cir. 2015) (quoting Ranchers Cattlemen Action Legal
Fund United Stockgrowers of Am. v. Dep’t of Agric., 499 F.3d
1108, 1114 (9th Cir. 2007)). Because preliminary injunction
decisions are often “made hastily and on less than a full
record,” they “may provide little guidance as to the
appropriate disposition on the merits.” Ctr. for Biological
Diversity v. Salazar, 706 F.3d 1085, 1090 (9th Cir. 2013)
(citations omitted); see also S. Or. Barter Fair v. Jackson
County, 372 F.3d 1128, 1136 (9th Cir. 2004). However,
“there is an exception to the general rule for ‘conclusions on
38 RODRIGUEZ V. ROBBINS
pure issues of law.’” Stormans, 794 F.3d at 1075 n.5
(quoting Alpha Delta Chi–Delta Chapter v. Reed, 648 F.3d
790, 804–05 (9th Cir. 2011)); see also Ranchers Cattlemen,
499 F.3d at 1114 (“Any of our conclusions on pure issues of
law, however, are binding.”).
The question resolved in Rodriguez II—whether non-
citizens subject to prolonged detention under § 1226(c) are
entitled to bond hearings—is a pure question of law. We
interpreted the statute by applying the canon of constitutional
avoidance, and were bound to do so by our prior precedent.
The decision was not made “hastily”; it provided a “fully
considered appellate ruling” on the legal issues. Ranchers
Cattlemen, 499 F.3d at 1114 (quoting 18 Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 4478.5
(2002)). We therefore follow Rodriguez II as law of the case
and law of the circuit.9
2. The § 1225(b) Subclass
Section 1225(b) applies to “applicants for admission”
who are stopped at the border or a port of entry, or who are
“present in the United States” but “ha[ve] not been admitted.”
8 U.S.C. § 1225(a)(1). The statute provides that asylum
9
The government’s primary arguments regarding § 1226(c) are that we
misconstrued Demore and other Supreme Court precedent, that the
permanent injunction is inconsistent with the language and purpose of
§ 1226(c), and that bond hearings following six months of incarceration
are not necessary and are an inappropriate “one size fits all” remedy.
These arguments are foreclosed by Rodriguez II. The government also
argues that any challenges to detention under § 1226(c) must be addressed
through individual as-applied claims. This argument is foreclosed by
Rodriguez I, which reversed the district court’s denial of class
certification.
RODRIGUEZ V. ROBBINS 39
seekers “shall be detained pending a final determination of
credible fear of persecution and, if found not to have such a
fear, until removed.” Id. § 1225(b)(1)(B)(iii)(IV). As to all
other applicants for admission, the statute provides that “if
the examining immigration officer determines that an alien
seeking admission is not clearly and beyond a doubt entitled
to be admitted, the alien shall be detained” for removal
proceedings. Id. § 1225(b)(2)(A).
Under DHS regulations, non-citizens detained pursuant to
§ 1225(b) are generally not eligible for release on bond.
8 C.F.R. § 236.1(c)(2). If there are “urgent humanitarian
reasons or significant public benefit[s]” at stake,10 however,
the Attorney General has discretion to temporarily parole
such an individual into the United States, provided that the
individual presents neither a danger nor a risk of flight.
8 U.S.C. § 1182(d)(5)(A). Because parole decisions under
§ 1182 are purely discretionary, they cannot be appealed to
IJs or courts. This lack of review has proven especially
problematic when immigration officers have denied parole
based on blatant errors: In two separate cases identified by
the petitioners, for example, officers apparently denied parole
because they had confused Ethiopia with Somalia. And in a
third case, an officer denied parole because he had mixed up
two detainees’ files.
As with § 1226(c), the government often cites § 1225(b)’s
mandatory language to justify indefinite civil detention
without an individualized determination as to whether the
10
Under this standard, detainees are eligible for parole if they have
serious medical conditions, are pregnant, are juveniles who meet certain
conditions, or will be witnesses in judicial, administrative, or legislative
proceedings. See 8 C.F.R. § 212.5(b).
40 RODRIGUEZ V. ROBBINS
detainee would pose a danger or flight risk if released. See,
e.g., Nadarajah, 443 F.3d at 1071, 1076 (asylum seeker
detained for nearly five years). Section 1225(b) subclass
members have been detained for as long as 831 days, and for
an average of 346 days each. These individuals apply for and
receive relief from removal at very high rates: 94% apply,
and of those who apply, 64% are granted relief. In illustrative
cases identified by the petitioners, non-citizens fled to the
United States after surviving kidnapping, torture, and murder
of their family members in their home countries. Upon
arrival, these individuals were detained under § 1225(b), and
they remained in detention until the government granted their
asylum applications hundreds of days later.
In Rodriguez II, we extended Casas and held that to avoid
serious constitutional concerns, mandatory detention under
§ 1225(b), like mandatory detention under § 1226(c), must be
construed as implicitly time-limited. Rodriguez II, 715 F.3d
at 1144. Accordingly, “the mandatory provisions of
§ 1225(b) simply expire at six months, at which point the
government’s authority to detain the alien shifts to § 1226(a),
which is discretionary and which we have already held
requires a bond hearing.” Id. (citing Casas, 535 F.3d at 948).
In so holding, we recognized that many members of the
§ 1225(b) subclass are subject to the “entry fiction” doctrine,
under which non-citizens seeking admission to the United
States “may physically be allowed within its borders pending
a determination of admissibility,” but “are legally considered
to be detained at the border and hence as never having
effected entry into this country.” Id. at 1140 (quoting
Barrera-Echevarria, 44 F.3d at 1450). Such non-citizens
therefore “enjoy very limited protections under the United
States constitution.” Id. (quoting Barrera-Echevarria, 44
RODRIGUEZ V. ROBBINS 41
F.3d at 1450). However, even if the majority of prolonged
detentions under § 1225(b) are constitutionally permissible,
“the Supreme Court has instructed that, where one possible
application of a statute raises constitutional concerns, the
statute as a whole should be construed through the prism of
constitutional avoidance.” Id. at 1141 (citing Clark, 543 U.S.
at 380). Section 1225(b) applies to several categories of
lawful permanent residents who are not subject to the entry
fiction doctrine but may be treated as seeking admission
under 8 U.S.C. § 1101(a)(13)(C). See id. at 1141–42.11
11
Section 1101(a)(13)(C) provides that:
An alien lawfully admitted for permanent residence in
the United States shall not be regarded as seeking an
admission into the United States for purposes of the
immigration laws unless the alien—
(i) has abandoned or relinquished that status,
(ii) has been absent from the United States for a
continuous period in excess of 180 days,
(iii) has engaged in illegal activity after having departed
the United States,
(iv) has departed from the United States while under
legal process seeking removal of the alien from the
United States, including removal proceedings under this
chapter and extradition proceedings,
(v) has committed an offense identified in section
1182(a)(2) of this title, unless since such offense the
alien has been granted relief under section 1182(h) or
1229b(a) of this title, or
(vi) is attempting to enter at a time or place other than
as designated by immigration officers or has not been
42 RODRIGUEZ V. ROBBINS
Because those persons are entitled to due process protections
under the Fifth Amendment, prolonged detention without
bond hearings would raise serious constitutional concerns.
See id. at 1142–43; see also Zadvydas, 533 U.S. at 682
(holding that indefinite detention of a once-admitted non-
citizen “would raise serious constitutional concerns”). We
therefore construed the statutory scheme to require a bond
hearing after six months of detention under § 1225(b).
Rodriguez II, 715 F.3d at 1144.
The government now argues that “[d]espite years of
discovery, petitioners have not identified any member of the
Section 1225(b) subclass who is a [lawful permanent
resident].” Petitioners represent that they have found lawful
permanent residents who have been detained for more than
six months under § 1225(b), although their submissions do
not identify any specific individuals who fit that description.
The question, however, is whether “one possible application
of [the] statute raises constitutional concerns.” Rodriguez II,
715 F.3d at 1141. Because the government concedes that
detention of lawful permanent residents under § 1225(b) is
possible under § 1101(a)(13)(C), “the statute as a whole
should be construed through the prism of constitutional
avoidance.” Rodriguez II, 715 F.3d at 1141; see also Clark,
543 U.S. at 380 (“It is not at all unusual to give a statute’s
ambiguous language a limiting construction called for by one
of the statute’s applications, even though other of the statute’s
applications, standing alone, would not support the same
limitation. The lowest common denominator, as it were, must
govern.”).
admitted to the United States after inspection and
authorization by an immigration officer.
RODRIGUEZ V. ROBBINS 43
The government also argues that lawful permanent
residents treated as seeking admission are entitled to lesser
due process protections than other lawful permanent
residents. But the government has not provided any authority
to support that proposition: The cases cited in the
government’s brief address statutory and regulatory
distinctions between lawful permanent residents treated as
applicants for admission and other lawful permanent
residents; they do not reflect any constitutional distinction
between those groups. See Gonzaga-Ortega v. Holder,
736 F.3d 795, 8014 (9th Cir. 2013) (holding that lawful
permanent residents treated as applicants for admission are
not entitled to counsel under 8 C.F.R. § 292.5(b));
Toro-Romero v. Ashcroft, 382 F.3d 930, 936 (9th Cir. 2004)
(explaining that different statutes govern exclusion of
inadmissible non-citizens and removal of deportable non-
citizens); Raya-Ledesma v. INS, 55 F.3d 418, 420 (9th Cir.
1994) (holding that “the INS limitation of § 212 relief [from
deportation] to legal permanent residents who have held that
status for more than seven years” does not violate an
ineligible non-citizen’s equal protection rights).
Finally, the government argues that, instead of requiring
bond hearings, we could avoid constitutional concerns by
interpreting § 1225(b) not to apply to lawful permanent
residents. This argument relies on an implausible
construction of the statutes at issue. Section 1225(b) applies
to “applicants for admission,” and § 1101 defines six
categories of lawful permanent residents as “seeking an
admission into the United States for purposes of the
immigration laws.” 8 U.S.C. § 1101(a)(13)(C); see also
Gonzaga-Ortega, 736 F.3d at 801 (“Ordinarily a returning
[lawful permanent resident] is not treated as an ‘applicant for
44 RODRIGUEZ V. ROBBINS
admission.’ But the statute that so provides includes six
exceptions . . . .”).
The Supreme Court’s decision in Kwong Hai Chew v.
Colding, 344 U.S. 590 (1953), is not to the contrary. Chew
involved a pre-IIRIRA immigration regulation that applied to
“excludable” non-citizens. Id. at 591 n.1. Because the
regulations were silent as to whether that category included
lawful permanent residents returning from voyages abroad,
the Court distinguished between the “exclusion” of newly
arriving non-citizens and the “expulsion” of lawful permanent
residents, thereby holding that the regulation did not
authorize the Attorney General to detain arriving lawful
permanent residents without hearings. Id. at 598–99. Section
1101(a)(13)(C) forecloses an analogous construction of
§ 1225(b) because it provides that “applicants for admission”
includes several groups of lawful permanent residents. See
8 U.S.C. § 1101(a)(13)(C). In any event, the government’s
alternative construction of § 1225(b) was never raised before
the district court; the argument is therefore forfeited. See
Munns v. Kerry, 782 F.3d 402, 412 (9th Cir. 2015); Saldana
v. Occidental Petrol. Corp., 774 F.3d 544, 554 (9th Cir.
2014).
Accordingly, we adhere to Rodriguez II’s holding
regarding the § 1225(b) subclass as law of the case and law
of the circuit. See Gonzalez, 677 F.3d at 390 n.4. The
government’s attempts to re-litigate Rodriguez II are
unavailing.12
12
The government argues, among other things, that the permanent
injunction entered by the district court is inconsistent with § 1225(b), DHS
regulations, the political branches’ plenary control of the borders, the
limited constitutional protections afforded to non-citizens seeking
RODRIGUEZ V. ROBBINS 45
3. The § 1226(a) Subclass
Section 1226(a) authorizes detention “pending a decision
on whether the alien is to be removed from the United
States.” 8 U.S.C. § 1226(a). The statute expressly authorizes
release on “bond of at least $1,500” or “conditional parole.”13
Id. § 1226(a)(2). Following an initial custody determination
by DHS, a non-citizen may apply for a review or
redetermination by an IJ, and that decision may be appealed
to the BIA. See 8 C.F.R. §§ 236.1, 1003.19. At these
hearings, the detainee bears the burden of establishing “that
he or she does not present a danger to persons or property, is
not a threat to the national security, and does not pose a risk
of flight.” Guerra, 24 I. & N. Dec. at 38. “After an initial
admission to the United States, and Supreme Court precedent. The
government also argues that bond hearings are unnecessary because non-
citizens detained under § 1225(b) can be released on parole. We
considered and rejected these arguments in Rodriguez II, and we decline
to address them here.
The government also argues that we should reconsider the holding in
Rodriguez II in light of new evidence, including as to the rates at which
non-citizens abscond or commit crimes after release, and the efficacy of
the parole process. Because Rodriguez II involved pure questions of law,
this new evidence is not material and does not alter our conclusions.
13
“‘[C]onditional parole’ under §1226(a)(2)(B) is a ‘distinct and
different procedure’ from ‘parole’ under § 1182(d)(5)(A)).” Garcia v.
Holder, 659 F.3d 1261, 1268 (9th Cir. 2011) (quoting In re
Castillo-Padilla, 25 I. & N. Dec. 257, 258 (BIA 2010)). As discussed
above, § 1182(d)(5)(A) authorizes the Attorney General to temporarily
release non-citizens detained under § 1225(b) “for urgent humanitarian
reasons or significant public benefit.” Conditional parole under § 1226(a),
by contrast, provides for release from detention if the non-citizen “would
not pose a danger to property or persons” and “is likely to appear for any
further proceeding.” 8 C.F.R. § 236.1(c)(8).
46 RODRIGUEZ V. ROBBINS
bond redetermination,” a request for another review “shall be
considered only upon a showing that the alien’s
circumstances have changed materially since the prior bond
redetermination.” 8 C.F.R. § 1003.19(e). The government
has taken the position that additional time spent in detention
is not a “changed circumstance” that entitles a detainee to a
new bond hearing.
Although § 1226(a) provides for discretionary, rather than
mandatory, detention and establishes a mechanism for
detainees to seek release on bond, non-citizens often face
prolonged detention under that section. See, e.g., Casas,
535 F.3d at 944 (lawful permanent resident detained for seven
years); Singh, 638 F.3d at 1203 (lawful permanent resident
detained for nearly four years). In an extreme case identified
by the petitioners, a non-citizen with no criminal record
entered the United States on a tourist visa and affirmatively
applied for asylum, withholding of removal, and relief under
the Convention Against Torture shortly after that visa
expired. ICE detained him throughout the ensuing
proceedings before the IJ, the BIA, and the Ninth Circuit. At
the time petitioners generated their report, he had been
detained for 1,234 days with no definite end in sight.
The district court’s decision regarding the § 1226(a)
subclass was squarely controlled by our precedents. In
Casas, we held that a non-citizen subjected to prolonged
detention under § 1226(a) is entitled to a hearing to establish
whether continued detention is necessary because he would
pose a danger to the community or a flight risk upon release.
535 F.3d at 949–52. Since deciding Casas, we have
repeatedly affirmed its holding. See Cole v. Holder, 659 F.3d
762, 769 n.7 (9th Cir. 2011); Singh, 638 F.3d at 1200;
Aguilar-Ramos v. Holder, 594 F.3d 701, 704 n.3 (9th Cir.
RODRIGUEZ V. ROBBINS 47
2010); Makaj v. Crowther, 294 F. App’x 328, 329–30 (9th
Cir. 2008) (non-precedential memorandum disposition).
The government does not contest that Casas is the
binding law of this circuit or that individuals detained under
§ 1226(a) are entitled to bond hearings. Instead, the
government argues that § 1226(a) affords detainees the right
to request bond hearings, see 8 C.F.R. § 236.1, so there is no
basis for requiring the government to automatically provide
bond hearings after six months of detention. This argument
is foreclosed by Casas, which held that Ҥ 1226(c) must be
construed as requiring the Attorney General to provide the
alien with [a bond] hearing.” 535 F.3d at 951; see also
Rodriguez II, 715 F.3d at 1135 (citing Casas for the
proposition that under § 1226(a), “a bond hearing is required
before the government may detain an alien for a ‘prolonged’
period”). The record evinces the importance of Casas’s
holding on this point: Detainees, who typically have no
choice but to proceed pro se, have limited access to legal
resources, often lack English-language proficiency, and are
sometimes illiterate. As a result, many class members are not
aware of their right to a bond hearing and are poorly equipped
to request one. Accordingly, we conclude that class members
are entitled to automatic bond hearings after six months of
detention. We address the other procedural requirements for
these hearings in Section IV.B, infra.
4. The § 1231(a) Subclass
Section 1231(a) governs detention of non-citizens who
have been “ordered removed.” 8 U.S.C. § 1231(a). The
statute provides for mandatory detention during a ninety-day
removal period. Id. § 1231(a)(2). Under the statute:
48 RODRIGUEZ V. ROBBINS
The removal period begins on the latest of the following:
(i) The date the order of removal becomes
administratively final.
(ii) If the removal order is judicially reviewed
and if a court orders a stay of the removal of
the alien, the date of the court’s final order.
(iii) If the alien is detained or confined
(except under an immigration process), the
date the alien is released from detention or
confinement.
Id. § 1231(a)(1)(B). The removal period may be extended
beyond ninety days if a detainee “fails or refuses” to
cooperate in his removal from the United States. Id.
§ 1231(a)(1)(C).
“If the alien does not leave or is not removed within the
removal period,” he “shall be subject to supervision,” but
detention is no longer mandatory. Id. § 1231(a)(3). Rather,
the Attorney General has discretion to detain certain classes
of non-citizens and to impose conditions of release on others.
Id. § 1231(a)(3), (a)(6).14 Before releasing a detainee, the
government must conclude that removal is “not practicable or
not in the public interest,” that the detainee is “non-violent”
and “not likely to pose a threat to the community following
14
To avoid “serious constitutional concerns,” we have previously
“construe[d] § 1231(a)(6) as requiring an individualized bond hearing,
before an immigration judge, for aliens facing prolonged detention under
that provision.” Diouf II, 634 F.3d at 1086 (quoting Casas, 535 F.3d at
950).
RODRIGUEZ V. ROBBINS 49
release,” and that the detainee “does not pose a significant
flight risk” and is “not likely to violate the conditions of
release.” 8 C.F.R. § 241.4(e); see also id. § 241.4(f)
(enumerating factors the review panel should “weigh[] in
considering whether to recommend further detention or
release of a detainee”).
Here, the class is defined, in relevant part, as non-citizens
who are detained “pending completion of removal
proceedings, including judicial review.” The class therefore
by definition excludes any detainee subject to a final order of
removal.
Petitioners describe the § 1231(a) subclass as individuals
detained under that section who have received a stay of
removal from the BIA or a court. However, if a non-citizen
has received a stay of removal from the BIA pending further
administrative review, then the order of removal is not yet
“administratively final.” 8 U.S.C. § 1231(a)(1)(B)(i). The
non-citizen has not been “ordered removed,” and the removal
period has not begun, so § 1231(a) is inapplicable. See
Owino v. Napolitano, 575 F.3d 952, 955 (9th Cir. 2009)
(“[W]hile administrative proceedings are pending on remand,
Owino will not be subject to a final order of removal, so
§ 1231 cannot apply.”). Similarly, as long as a non-citizen’s
removal order is stayed by a court pending judicial review,
that non-citizen is not subject to “the court’s final order.”
8 U.S.C. § 1231(a)(1)(B)(ii). In such circumstances,
§ 1231(a) is, again, inapplicable. See Prieto-Romero v.
Clark, 534 F.3d 1053, 1059 (9th Cir. 2008) (“[Section]
1231(a) does not provide authority to detain an alien . . .
whose removal has been stayed by a court of appeals pending
its disposition of his petition for review.”); Casas, 535 F.3d
at 947 (“If an alien has filed a petition for review with this
50 RODRIGUEZ V. ROBBINS
court and received a judicial stay of removal, the ‘removal
period’ under § 1231(a) does not begin until this court ‘denies
the petition and withdraws the stay of removal.’”) (quoting
Prieto-Romero, 534 F.3d at 1060).15
Simply put, the § 1231(a) subclass does not exist. The
district court’s grant of summary judgment and permanent
injunction are therefore reversed to the extent they pertain to
individuals detained under § 1231(a).
C. Procedural Requirements
In addition to challenging the class members’ entitlement
to automatic bond hearings after six months of detention, the
government objects to the district court’s order regarding the
burden and standard of proof at such hearings. The
government also appeals the district court’s ruling that IJs
must consider alternatives to detention. Petitioners cross-
appeal the district court’s rulings that IJs are not required to
consider the ultimate likelihood of removal, assess the total
length of detention, or conduct periodic hearings at six-month
intervals. We address each issue in turn.
1. Burden and Standard of Proof
The government argues that the district court erred in
requiring the government to justify a non-citizen’s detention
15
“Such aliens may be detained, however, pursuant to § 1226(a), which
allows the Attorney General to detain any alien ‘pending a decision on
whether the alien is to be removed from the United States.’” Prieto-
Romero, 534 F.3d at 1059. As noted, non-citizens subjected to prolonged
detention under § 1226(a) are entitled to bond hearings. See Casas,
535 F.3d at 944, 949–51.
RODRIGUEZ V. ROBBINS 51
by clear and convincing evidence, an intermediate burden of
proof that is more than a preponderance of the evidence but
less than proof beyond a reasonable doubt. As we noted in
Rodriguez II, however, we are bound by our precedent in
Singh, which held that “the government must prove by clear
and convincing evidence that an alien is a flight risk or a
danger to the community to justify denial of bond at a Casas
hearing.” Rodriguez II, 715 F.3d at 1135 (quoting Singh,
638 F.3d at 1203).
In Singh, we explained that the “Supreme Court has
repeatedly reaffirmed the principle that ‘due process places a
heightened burden of proof on the State in civil proceedings
in which the individual interests at stake . . . are both
particularly important and more substantial than mere loss of
money.’” 638 F.3d at 1204 (alteration in original) (quoting
Cooper v. Oklahoma, 517 U.S. 348, 363 (1996) (criminal
defendant’s competence to stand trial)) (citing Foucha,
504 U.S. at 80 (indefinite confinement of a criminal
defendant acquitted by reason of insanity); Woodby v. INS,
385 U.S. 276, 285 (1966) (deportation of a lawful permanent
resident); Chaunt v. United States, 364 U.S. 350, 353 (1960)
(revocation of naturalized citizenship)). In the civil
commitment context, for example, the Supreme Court has
recognized “the state’s interest in committing the emotionally
disturbed,” but has held that “the individual’s interest in not
being involuntarily confined indefinitely . . . is of such weight
and gravity that due process requires the state to justify
confinement by proof more substantial than a mere
preponderance of the evidence.” Addington v. Texas,
441 U.S. 418, 425–27 (1979). Drawing on this jurisprudence,
Singh concluded that “a clear and convincing evidence
standard of proof provides the appropriate level of procedural
protection” in light of “the substantial liberty interest at
52 RODRIGUEZ V. ROBBINS
stake.” 638 F.3d at 1203–04 (citing Addington, 441 U.S. at
427).
The government now contends that Singh was wrongly
decided. However, it is well established that only a full court,
sitting en banc, may overrule a three-judge panel decision.
See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003).
Right or wrong, we are bound to follow Singh unless
intervening Supreme Court authority is to the contrary. Id.
2. Restrictions Short of Detention
The government also argues that the district court erred in
“determin[ing] that IJs are required to consider the use of
alternatives to detention in making bond determinations.” As
the district court’s order states, however, IJs “should already
be considering restrictions short of incarceration.” Indeed,
Rodriguez II affirmed a preliminary injunction that directed
IJs to “release each Subclass member on reasonable
conditions of supervision, including electronic monitoring if
necessary, unless the government” satisfied its burden of
justifying continued detention. 715 F.3d at 1131 (emphasis
added).
The government’s objections to this requirement are
unpersuasive. First, the government relies on Demore for the
proposition that the government is not required “to employ
the least burdensome means” of securing immigration
detainees. Demore, 538 U.S. at 528. But Demore applies
only to “brief period[s]” of immigration detention. Id. at 513,
523. “When the period of detention becomes prolonged, ‘the
private interest that will be affected by the official action’ is
more substantial; greater procedural safeguards are therefore
required.” Diouf II, 634 F.3d at 1091 (quoting Mathews, 424
RODRIGUEZ V. ROBBINS 53
U.S. at 335). Further, the injunction does not require that IJs
apply the least restrictive means of supervision; it merely
directs them to “consider” restrictions short of detention. The
IJ ultimately must decide whether any restrictions short of
detention would further the government’s interest in
continued detention.
Second, the government argues that IJs are not
empowered to impose conditions of release. However,
federal regulations authorize IJs to “detain the alien in
custody, release the alien, and determine the amount of bond,
if any, under which the respondent may be released” and to
“ameliorat[e] the conditions” of release imposed by DHS. 8
C.F.R. § 1236.1(d)(1). Accordingly, if DHS detains a non-
citizen, an IJ is already empowered to “ameliorat[e] the
conditions” by imposing a less restrictive means of
supervision than detention.16
Finally, the government argues that IJs lack the resources
to engage in continuous monitoring of released individuals.
However, the government fails to cite any law or evidence
indicating that IJs, rather than DHS or ICE agents, would be
responsible for implementing the conditions of release.
Moreover, the record indicates that Congress authorized and
funded an ICE alternatives-to-detention program in 2002, and
DHS has operated such a program, called the Intensive
Supervision and Appearance Program, since 2004. It is
16
The authorities the government cites provide no support for this
argument. One discusses DHS officers’ authority to impose conditions of
release and allows IJs to “ameliorat[e] those conditions,” see 8 C.F.R.
§ 236.1; the other provides only that IJs may not grant relief from removal
for the purpose of fulfilling the United States’ treaty obligations, see In re
G-K-, 26 I. & N. Dec. 88, 93 (BIA 2013).
54 RODRIGUEZ V. ROBBINS
abundantly clear that IJs can and do17 consider conditions of
release on bond when determining whether the government’s
interests can be served by detention only, and we conclude
that DHS will administer any such conditions, regardless of
whether they are imposed by DHS in the first instance or by
an IJ upon later review.
3. Length of Detention and Likelihood of Removal
In their cross-appeal, petitioners argue that the district
court erred in failing to require IJs to consider the length of a
non-citizen’s past and likely future detention and, relatedly,
the likelihood of eventual removal from the United States. In
our prior decisions, we have not directly addressed whether
due process requires consideration of the length of future
detention at bond hearings. We have noted, however, that
“the due process analysis changes as ‘the period of . . .
confinement grows,’” and that longer detention requires more
robust procedural protections. Diouf II, 634 F.3d at 1086
(quoting Zadvydas, 634 F.3d 1081). Accordingly, a non-
citizen detained for one or more years is entitled to greater
solicitude than a non-citizen detained for six months.
17
On September 10, 2015, the government provided us with the only
transcript of a Rodriguez hearing in this record, which took place on April
28, 2015, and concerned a Mr. Kaene Dean. There, the IJ did consider
and impose conditions of release in addition to bond, including monthly
reporting to DHS and enrollment in a mental health treatment plan. From
the transcript, it does not appear that the government presented any
evidence that these conditions would be insufficient to prevent the risk of
danger to the community, or even any evidence at all. However, the IJ’s
decision to release on bond a recidivist sexual offender whom the DOJ
had released twice before in proceedings unrelated to this case under
§ 1226(a) and who had twice before violated the conditions of his release
on bond is not before us. See October 2, 2015 Order.
RODRIGUEZ V. ROBBINS 55
Moreover, Supreme Court precedent provides that “detention
incidental to removal must bear a reasonable relation to its
purpose.” Tijani, 430 F.3d at 1249 (Tashima, J., concurring)
(citing Demore, 538 U.S. at 527; Zadvydas, 533 U.S. at 690).
At some point, the length of detention could “become[] so
egregious that it can no longer be said to be ‘reasonably
related’ to an alien’s removal.” Id. (citation omitted). An IJ
therefore must consider the length of time for which a non-
citizen has already been detained.
As to the likely duration of future detention and the
likelihood of eventual removal, however, those factors are too
speculative and too dependent upon the merits of the
detainee’s claims for us to require IJs to consider during a
bond hearing. We therefore affirm the district court’s ruling
that consideration of those factors “would require legal and
political analyses beyond what would otherwise be
considered at a bond hearing” and is therefore not
appropriate. We note that Zadvydas and its progeny require
consideration of the likelihood of removal in particular
circumstances,18 but we decline to require such analysis as a
threshold inquiry in all bond hearings.
18
Several of our cases have addressed petitions for habeas relief under
Zadvydas, which requires a detainee to prove that he “is not significantly
likely to be removed.” Owino, 575 F.3d at 955; see also Diouf v. Mukasey
(Diouf I), 542 F.3d 1222, 1233 (9th Cir. 2008); Prieto-Romero, 534 F.3d
at 1065; Nadarajah, 443 F.3d at 1080. Those decisions instruct IJs to
consider the likelihood of removal when, for instance, a detainee is
stateless. See Owino, 575 F.3d at 955–56. However, petitioners have not
identified, and we have not found, authority that supports requiring this
inquiry in all bond hearings.
56 RODRIGUEZ V. ROBBINS
4. Periodic Hearings
The record shows that many class members are detained
well beyond the six-month mark: Almost half remain in
detention at the twelve-month mark, one in five at eighteen
months, and one in ten at twenty-four months. Petitioners
argue that due process requires additional bond hearings at
six-month intervals for class members who are detained for
more than six months after their initial bond hearings. We
have not had occasion to address this issue in our previous
decisions, and it has been a source of some contention in the
district courts. See, e.g., Vivorakit v. Holder, No. 14-04515,
2015 WL 4593545, at *4 (N.D. Cal. July 30, 2015);
Castaneda v. Aitken, No. 15-01635, 2015 WL 3882755, at
*10 (N.D. Cal. June 23, 2015).
The district court here did not address this proposed
requirement. For the same reasons the IJ must consider the
length of past detention, we hold that the government must
provide periodic bond hearings every six months so that non-
citizens may challenge their continued detention as “the
period of . . . confinement grows.” Diouf II, 634 F.3d at 1091
(quoting Zadvydas, 533 U.S. at 701).
V. Conclusion
This decision flows from the Supreme Court’s and our
own precedent bearing on the constitutional implications of
our government’s prolonged civil detention of individuals,
many of whom have the legal right to live and work in our
country. By upholding the district court’s order that
Immigration Judges must hold bond hearings for certain
detained individuals, we are not ordering Immigration Judges
to release any single individual; rather we are affirming a
RODRIGUEZ V. ROBBINS 57
minimal procedural safeguard—a hearing at which the
government bears only an intermediate burden of proof in
demonstrating danger to the community or risk of flight—to
ensure that after a lengthy period of detention, the
government continues to have a legitimate interest in the
further deprivation of an individual’s liberty. Immigration
Judges, a specialized and experienced group within the
Department of Justice, are already entrusted to make these
determinations, and need not release any individual they find
presents a danger to the community or a flight risk after
hearing and weighing the evidence. Accordingly, we affirm
all aspects of the district court’s permanent injunction, with
three exceptions: We reverse as to the § 1231(a) subclass,
and we hold that IJs must consider the length of detention and
provide bond hearings every six months. We hereby remand
to the district court to enter a revised injunction consistent
with our instructions.
AFFIRMED IN PART; REVERSED IN PART;
REMANDED.