Alejandro Rodriguez v. Timothy Robbins , 715 F.3d 1127 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEJANDRO RODRIGUEZ; ABDIRIZAK No. 12-56734
ADEN FARAH ; JOSE FARIAS
CORNEJO ; YUSSUF ABDIKADIR; D.C. No.
ABEL PEREZ RUELAS, for themselves 2:07-cv-03239-
and on behalf of a class of similarly- TJH-RNB
situated individuals,
Petitioners-Appellees,
OPINION
and
EFREN OROZCO ,
Petitioner,
v.
TIMOTHY ROBBINS, Field Office
Director, Los Angeles District,
Immigration and Customs
Enforcement; JANET NAPOLITANO ,
Secretary, Homeland Security; ERIC
H. HOLDER, JR., 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; OFFICER
NGUYEN , Officer-in-Charge, Theo
Lacy Facility; CAPTAIN DAVIS
2 RODRIGUEZ V . ROBBINS
NIGHSWONGER, Commander, Theo
Lacy Facility; CAPTAIN MIKE
KREUGER , 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.
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, Senior District Judge, Presiding
Argued and Submitted
March 4, 2013—Pasadena, California
Filed April 16, 2013
Before: Kim McLane Wardlaw and Ronald M. Gould,
Circuit Judges, and Sam E. Haddon, District Judge.*
Opinion by Judge Wardlaw
*
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 the district court’s grant of a
preliminary injunction in favor of a certified class of non-
citizens who challenge their prolonged detentions, requiring
the government to identify those detained in subclasses
pursuant to 8 U.S.C. § 1226(c) (certain criminal or terrorist
aliens) and § 1225(b) (arriving aliens), and to provide each
with an individualized bond hearing before an Immigration
Judge.
The panel held that petitioners-appellees were likely to
succeed on the merits of their claim that § 1225(b) must be
construed to authorize only six months of mandatory
detention, after which detention is authorized by § 1226(a)
and a bond hearing is required. The panel also held that the
preliminary injunction is necessary to ensure that individuals
whom the government could not prove constitute a flight risk
or danger to public safety are not needlessly detained, and
that appellees therefore clearly showed a risk of irreparable
harm.
COUNSEL
Theodore W. Atkinson (argued), Stuart F. Delery, August
Flentje, David J. Kline, United States Department of Justice,
Washington, D.C., for Appellants.
**
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
Ahilan T. Arulanantham (argued), Michael Kaufman, ACLU
Foundation of Southern California, Los Angeles, California;
Judy Rabinovitz and Michael Tan, ACLU Immigrants’ Rights
Project, New York, New York; Jayashri Srikantiah, Stanford
Law School Immigrants’ Rights Clinic, Stanford, California;
Sean Commons and Cody Jacobs, Sidley Austin LLP, Los
Angeles, California, for Appellees.
Angel L. Tang, Marco J. Martemucci, and Elizabeth S. St.
John, Arnold & Porter LLP, Los Angeles, California, for
Amici Curiae professors and researchers of sociology,
criminology, anthropology, and law.
Sarah H. Paoletti, Elizabeth Freed, and Suniti Mehta,
University of Pennsylvania Law School Transnational Legal
Clinic, Philadelphia, Pennsylvania, for Amici Curiae
international law professors and human rights clinics and
clinicians.
OPINION
WARDLAW, Circuit Judge:
Alejandro Rodriguez, Abdirizak Aden Farah, Jose Farias
Cornejo, Yussuf Abdikadir, and Abel Perez Ruelas
(“Appellees”) are the named plaintiffs representing a certified
class of non-citizens who challenge their prolonged detention,
pursuant to certain federal immigration statutes, without
individualized bond hearings and determinations to justify
RODRIGUEZ V . ROBBINS 5
their continued detention.1 The district court entered a
preliminary injunction requiring the government to identify
all class members detained pursuant to 8 U.S.C. §§ 1226(c)
and 1225(b) (the “1226(c) subclass” and “1225(b) subclass,”
respectively), and to “provide each of them with a bond
hearing before an Immigration Judge with power to grant
their release.” Under the preliminary injunction, at the
conclusion of each bond hearing, the Immigration Judge
(“IJ”) “shall release each Subclass member on reasonable
conditions of supervision, including electronic monitoring if
necessary, 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.”2 The government appeals that order, and we affirm.
1
The class consists of:
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.
2
The district court entered its order on September 13, 2012. Thereafter,
a panel of our court stayed the injunction for 30 days, giving the
government until November 12, 2012 to comply with the preliminary
injunction. At oral argument, government counsel represented that, since
bond hearings began in mid-November of 2012, about 400 hearings have
been conducted under the district court’s order. Government counsel
stated that about two-thirds of those hearings resulted in the release of the
alien on bond.
6 RODRIGUEZ V . ROBBINS
I.
At any given time, thousands of immigrants to the United
States are detained while they await the conclusion of
administrative and judicial proceedings that will determine
whether they may remain in this country. According to the
most recently available statistics, over 429,000 detainees
were held by U.S. Immigration and Customs Enforcement
(“ICE”) over the course of fiscal year 2011; on average, over
33,000 were detained on any given day.3 As of late 2011, the
Los Angeles Field Office of ICE oversaw the detention of
over 2,000 aliens, the great majority of whom were not
subject to a final order of removal. Id. at 1.
This appeal concerns individuals detained in southern
California for six months or longer under one of two federal
immigration statutes. Section 1226(c) of Title 8 of the United
States Code (“Section 1226(c)” or “§ 1226(c)”) subjects
certain aliens who are deportable or inadmissible on account
of their criminal history to mandatory detention pending
proceedings to remove them from the United States.4 If an
3
U.S. Immigration and Customs Enforcement, Enforcement and
Removal Operations Facts and Statistics 3 (2011), available at
http://www.ice.gov/doclib/foia/reports/ero-facts-and-statistics.pdf.
4
Mandatory detention under Section 1226(c) applies to aliens who are
inadmissible on account of having committed a crime involving moral
turpitude or a controlled substance offense, on account of having multiple
criminal convictions with an aggregate sentence of five years or more of
confinement, on account of connections to drug trafficking, prostitution,
money laundering, or human trafficking, on account of having carried out
severe violations of religious freedom while serving as a foreign
government official, or on account of having been involved in serious
criminal activity and asserting immunity from prosecution; aliens who are
deportable on account of having been convicted of two or more crimes
RODRIGUEZ V . ROBBINS 7
ICE official determines that an individual’s criminal history
triggers application of §1226(c), the alien is processed for
detention. If the relevant ICE official is unsure whether
§ 1226(c) applies to a certain individual, he may consult an
ICE attorney who is “embedded” in the field office.
Detainees are permitted to ask an Immigration Judge to
reconsider the applicability of mandatory detention, see 8
C.F.R. § 1003.19(h)(2)(ii), but such review is limited in scope
and addresses only whether the individual’s criminal history
falls within the statute’s purview. See generally In re Joseph,
22 I. & N. Dec. 799 (B.I.A. 1999).
Section 1225(b) of Title 8 (“Section 1225(b)” or
“§ 1225(b)”), the other statute at issue here, applies to
“applicants for admission,” such as those apprehended at the
border or at a port of entry. 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. 8 U.S.C. § 1225(b)(2)(A); see also 8 U.S.C.
§ 1225(b)(1)(B)(iii)(IV) (providing for mandatory detention
of asylum seekers “pending a final determination of credible
fear of persecution and, if found not to have such a fear, until
removed.”). Although Section 1225(b) generally mandates
involving moral turpitude, an aggravated felony, a controlled substance
offense, certain firearm-related offenses, or certain other miscellaneous
crimes; aliens who are deportable on account of having committed a crime
of moral turpitude within a certain amount of time since their date of
admission for which a sentence of one year or longer has been imposed;
and aliens who are inadmissible or deportable because of 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)).
8 RODRIGUEZ V . ROBBINS
the detention of aliens seeking admission pending their
removal proceedings, individuals detained under the statute
may be eligible for discretionary parole from ICE custody.
See 8 U.S.C. § 1182(d)(5)(A).5 In the Central District of
California, detainees are notified that they will be reviewed
for parole and are asked to fill out a questionnaire and to
submit to an interview with ICE officers to probe their
suitability for parole. The agency considers the alien’s
potential dangerousness and criminal history, as well as flight
risk, in making parole determinations. If a detainee is denied
parole, he or she is notified orally and by a written form on
which the explanation for the denial is conveyed through a
checked box. Before the district court entered the preliminary
injunction, parole was the only possible release mechanism
available to most 1225(b) subclass members.
Appellees argue that prolonged mandatory detention
under these statutes without any possibility for review of the
government’s justification for their imprisonment by a neutral
5
Section 1182(d)(5)(A) provides:
The Attorney General may, except as provided in
subparagraph (B) or in section 1184(f) of this title, in
his discretion parole into the United States temporarily
under such conditions as he may prescribe only on a
case-by-case basis for urgent humanitarian reasons or
significant public benefit any alien applying for
admission to the United States, but such parole of such
alien shall not be regarded as an admission of the alien
and when the purposes of such parole shall, in the
opinion of the Attorney General, have been served the
alien shall forthwith return or be returned to the custody
from which he was paroled and thereafter his case shall
continue to be dealt with in the same manner as that of
any other applicant for admission to the United States.
RODRIGUEZ V . ROBBINS 9
arbiter would raise grave constitutional concerns. Thus,
relying on a related series of our decisions, Appellees
requested a preliminary injunction guaranteeing them, when
their detention exceeds six months in duration, an
individualized determination of whether their continued
detention is necessitated by any flight risk or possible danger
to the community. The government argues that both statutes
unambiguously require mandatory detention with no limit on
the duration of imprisonment and that the Supreme Court has
repeatedly affirmed the federal government’s constitutional
and statutory authority to require such detention. We agree
with the district court that, based on our precedent, the canon
of constitutional avoidance requires us to construe the
government’s statutory mandatory detention authority under
Section 1226(c) and Section 1225(b) as limited to a six-
month period, subject to a finding of flight risk or
dangerousness.
II.
“The district court’s grant of a preliminary injunction is
reviewed for abuse of discretion and should be reversed if the
district court based its decision on an erroneous legal standard
or on clearly erroneous findings of fact.” Stormans, Inc. v.
Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009) (internal
quotation marks omitted). “The district court’s interpretation
of the underlying legal principles, however, is subject to de
novo review.” Id. An overbroad injunction is an abuse of
discretion. Id.
III.
“A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
10 RODRIGUEZ V . ROBBINS
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.” Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008). To determine
whether the district court abused its discretion in entering the
preliminary injunction, then, we consider in turn:
(1) Appellees’ likelihood of success on the merits;
(2) whether they have established a likelihood of irreparable
harm; (3) the balance of equities; and (4) where the public
interest lies.6
A. Likelihood of Success on the Merits
Appellees claim that the federal immigration detention
statutes must be construed to require “rigorous bond
6
The government suggests that Federal Rule of Civil Procedure 52(a)
requires us to reverse and remand because the district court failed to make
explicit findings of fact and conclusions of law in its order. Rule 52(a)
directs that “the court must find the facts specially and state its
conclusions of law separately.” W hile in general “[a] district court must
set forth findings of fact and conclusions of law supporting an order
granting an injunction,” we have held that “failure to comply with Rule
52(a) does not require reversal unless a full understanding of the question
is not possible without the aid of separate findings.” FTC v. Enforma
Natural Prods., Inc., 362 F.3d 1204, 1212 (9th Cir. 2004). In general, we
will remand only “where a district court’s findings and conclusions
supporting the preliminary injunction are not sufficient to permit
meaningful review.” Id. Here, by virtue of Appellees’ membership in the
subclasses at issue, the relevant facts are inherently undisputed: Each
Appellee has been held for at least six months under one of the pertinent
immigration detention statutes without an opportunity to contest his
detention in a bond hearing. As the government concedes, “[t]his case
presents, at its core, a question of statutory and constitutional
interpretation that does not turn on the facts of any individual Petitioner.”
The government offers no reason why meaningful review is not possible
on the current record.
RODRIGUEZ V . ROBBINS 11
hearings” for members of the 1226(c) and 1225(b) subclasses.
They urge that, because prolonged mandatory detention
without a bond hearing would raise grave constitutional
concerns, we must read the statutes in a way that permits the
possibility of release on review by a neutral decision-maker.
It is “a cardinal principle” of statutory interpretation that, “if
a serious doubt of constitutionality is raised” by one possible
construction of a statute, we must “ascertain whether a
construction of the statute is fairly possible by which the
question may be avoided.” Crowell v. Benson, 285 U.S. 22,
62 (1932). “The canon favoring constructions of statutes to
avoid constitutional questions does not, however, license a
court to usurp the policy-making and legislative functions of
duly-elected representatives.” Heckler v. Mathews, 465 U.S.
728, 741 (1984). Our task is therefore to determine whether
the government’s reading of Sections 1226(c) and 1225(b)
raises constitutional concerns and, if so, whether an
alternative construction is plausible without overriding the
legislative intent of Congress.
We begin 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.” 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. at 682. However,
the Supreme Court has also expressed a “longstanding view
that the Government may constitutionally detain deportable
aliens during the limited period necessary for their removal
proceedings.” Demore v. Kim, 538 U.S. 510, 526 (2003).
We therefore must determine whether the government’s
authority to mandatorily detain aliens under Sections 1226(c)
and 1225(b) for prolonged periods raises the constitutional
12 RODRIGUEZ V . ROBBINS
concerns identified by the Supreme Court in Zadvydas, or
whether such detention is consistent with Demore and,
thereby, permissible.
These are not entirely new questions for our court. As
noted by the previous panel that reversed the district court’s
denial of class certification, in a series of decisions since
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.” Rodriguez v. Hayes (Rodriguez I), 591 F.3d
1105, 1114 (9th Cir. 2010). After Zadvydas and Demore, we
held in Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005), that
the detention under § 1226(c) of a lawfully admitted resident
alien subject to removal for over 32 months was
“constitutionally doubtful.” Id. at 1242 (“Despite the
substantial powers that Congress may exercise in regard to
aliens, it is constitutionally doubtful that Congress may
authorize imprisonment of this duration for lawfully admitted
resident aliens who are subject to removal.”). “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. Thus, we
remanded Tijani’s petition to the district court with directions
to grant a writ of habeas corpus unless the government
provided a bail hearing within 60 days. Id.
We expanded on this reasoning in Casas-Castrillon v.
Department of Homeland Security (Casas), 535 F.3d 942 (9th
Cir. 2008). In Casas, a lawful permanent resident (“LPR”)
who had been detained for seven years sought habeas relief
while his petition for review of his removal order was
RODRIGUEZ V . ROBBINS 13
pending before this court. Id. at 944–45. We interpreted
Demore to hold “that § 1226(c) was intended only to
‘govern[] detention of deportable criminal aliens pending
their removal proceedings,’ which the Court emphasized
typically ‘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 BIA.” Id. at 948 (alteration
in original) (quoting Demore, 538 U.S. at 527-28, 530)
(emphasis omitted). Concluding that § 1226(c) applies
during only administrative removal proceedings (i.e., up until
the BIA dismisses an alien’s appeal but not during the
pendency of judicial review), we held “that Casas’ detention
was authorized during this period [while he awaited judicial
review] under the Attorney General’s general, discretionary
detention authority under § 1226(a).”7 Id. In other words,
7
Section 1226(a) provides:
On a warrant issued by the Attorney General, an alien
may be arrested and detained pending a decision on
whether the alien is to be removed from the United
States. Except as provided in subsection (c) of this
Section and pending such decision, the Attorney
General--
(1) may continue to detain the arrested alien; and
(2) may release the alien on--
(A) bond of at least $1,500 with security approved
by, and containing conditions prescribed by, the
Attorney General; or
(B) conditional parole; but
(3) may not provide the alien with work authorization
14 RODRIGUEZ V . ROBBINS
§ 1226(c)’s mandatory detention provisions apply only until
the BIA affirms a removal order, at which point the
government’s authority to detain the alien shifts to § 1226(a),
where it remains until “we have rejected his final petition for
review or his time to seek such review expires.” Id.
Having concluded that Casas’ continued detention was
“authorized” under § 1226(a), we observed that “[t]here is a
difference between detention being authorized and being
necessary as to any particular person,” and thus held “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. We further noted that while
“[t]he Supreme Court upheld § 1226(c)’s mandatory
detention provision in Demore, [it] did so with the specific
understanding that § 1226(c) authorized mandatory detention
only for the ‘limited period of [the alien’s] removal
proceedings,’” which the Court emphasized was brief. Id. at
950 (alteration in original) (quoting Demore, 538 U.S. at
530). Because Demore’s holding hinged on the brevity of
mandatory detention, we concluded in Casas that “prolonged
detention of aliens is permissible only where the Attorney
General finds such detention individually necessary by
providing the alien with an adequate opportunity to contest
the necessity of his detention.” Id. at 951. We thus held that,
under § 1226(a)’s discretionary detention regime, a bond
(including an “employment authorized” endorsement or
other appropriate work permit), unless the alien is
lawfully admitted for permanent residence or otherwise
would (without regard to removal proceedings) be
provided such authorization.
RODRIGUEZ V . ROBBINS 15
hearing is required before the government may detain an alien
for a “prolonged” period. Id.
Two questions left unanswered by our opinion in
Casas—the procedural requirements for bond hearings under
Casas and the precise definition of “prolonged”
detention—have been answered in more recent opinions.
First, in Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011), we
provided guidance to immigration officials as to the
procedures required at a Casas hearing. With regard to the
appropriate burden of proof, we held that, “[g]iven the
substantial liberty interest at stake . . . 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.” Singh, 638 F.3d at 1203. We
further held that, in considering whether the government has
proven dangerousness, IJs should consider the factors
identified in In re Guerra, 24 I. & N. Dec. 37 (B.I.A. 2006),
which include the extensiveness of an alien’s criminal record,
the recency of his criminal activity, and the seriousness of his
offenses. Singh, 638 F.3d at 1206 (citing Guerra, 24 I. & N.
Dec. at 40). We also held that “due process requires a
contemporaneous record of Casas hearings,” such as a
transcript or an audio recording available upon request. Id. at
1208.
Second, in Diouf v. Napolitano (Diouf II), 634 F.3d 1081(9th Cir. 2011), we addressed the definition of “prolonged”
detention for purposes of the Casas bond hearing
requirement. Diouf II first extended the holding of Casas to
16 RODRIGUEZ V . ROBBINS
aliens discretionarily detained under 8 U.S.C. § 1231(a)(6).8
Id. at 1086. Rejecting the government’s proferred bases for
distinguishing Casas, see id., 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. Importantly, we indicated that an
“alien’s continuing detention becomes prolonged” at the 180-
day mark. Id. at 1091.
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.
With this precedent in mind, we address Appellees’
likelihood of success on the merits. Because the legal
8
Section 1231(a)(6) permits the continued detention, beyond the 90-day
statutory removal period that begins when a removal order becomes final,
of “inadmissible aliens, criminal aliens, aliens who have violated their
nonimmigrant status conditions, and aliens removable for certain national
security or foreign relations reasons, as well as any alien ‘who has been
determined by the Attorney General to be a risk to the community or
unlikely to comply with the order of removal.’” Zadvydas, 533 U.S. at
688 (quoting 8 U.S.C. § 1231(a)(6)).
RODRIGUEZ V . ROBBINS 17
considerations applicable to the 1226(c) and 1225(b)
subclasses differ in some respects, we separately analyze
Appellees’ likelihood of success with respect to each
subclass.
1. The 1226(c) subclass.
In addressing Section 1226(c), we do not write on a blank
slate. In Demore, an LPR who conceded deportability as an
aggravated felon raised a due process challenge to his
mandatory detention under § 1226(c). Demore, 538 U.S. at
517–18, 523. The Supreme Court first reviewed at some
length Congress’s stated reasons for mandating detention of
the aliens to whom Section 1226(c) applies, emphasizing
concerns about flight and recidivism under the prior regime.
Id. at 518–21. Ultimately, the Demore majority held that the
government was not required to provide individualized
determinations of an alien’s dangerousness or flight risk to
detain him during his removal proceedings. See id. at
523–25. Noting that the Zadvydas Court had already held
that the government’s authority to detain an alien indefinitely
pending removal would be constitutionally doubtful, the
Demore majority distinguished Zadvydas on two principal
grounds. Id. at 527 (citing Zadvydas, 533 U.S. at 699). First,
while in Zadvydas the petitioners challenged their indefinite
detention under circumstances where removal was not
practicable, thus undermining the government’s interest in
preventing flight, see id. (citing Zadvydas, 533 U.S. at 690),
detention under Section 1226(c) “necessarily serves the
purpose of preventing deportable criminal aliens from fleeing
prior to or during their removal proceedings, thus increasing
the chance that, if ordered removed, the aliens will be
successfully removed.” Id. at 528. Second, Demore
emphasized that unlike the detention at issue in Zadvydas,
18 RODRIGUEZ V . ROBBINS
which had no clear termination point, Section 1226(c) applies
only during the pendency of removal proceedings and thus
has an inherent end point—the conclusion of proceedings:
Under § 1226(c), not only does detention have
a definite termination point, in the majority of
cases it lasts for less than the 90 days we
considered presumptively valid in Zadvydas.
The Executive Office for Immigration Review
has calculated that, in 85% of the cases in
which aliens are detained pursuant to
§ 1226(c), removal proceedings are completed
in an average time of 47 days and a median of
30 days . . . . In the remaining 15% of cases,
in which the alien appeals the decision of the
Immigration Judge to the Board of
Immigration Appeals, appeal takes an average
of four months, with a median time that is
slightly shorter.
Id. at 529 (footnote and citations omitted). The Court thus
upheld mandatory detention under § 1226(c), though the
concurring opinion of Justice Kennedy—whose vote created
a majority—noted 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 (Kennedy, J., concurring) (citing Zadvydas, 533 U.S.
at 684–86).
We have addressed the question of how broadly Demore
sweeps in several decisions over the past decade. On each of
these occasions, we have consistently held that Demore’s
holding is limited to detentions of brief duration. See, e.g.,
RODRIGUEZ V . ROBBINS 19
Casas, 535 F.3d at 950 (“References to the brevity of
mandatory detention under § 1226(c) run throughout
Demore.”); Tijani, 430 F.3d at 1242 (similar); Nadarajah v.
Gonzales, 443 F.3d 1069, 1081 (9th Cir. 2006) (“In Demore,
the Court grounded its holding by referencing a ‘brief period’
. . . of ‘temporary confinement’ . . . . There is no indication
anywhere in Demore that the Court would countenance an
indefinite detention.”) (citations omitted). We are by no
means the only court to interpret Demore in this way. For
instance, in Diop v. ICE/Homeland Security, 656 F.3d 221(3d Cir. 2011), the Third Circuit construed Demore, in light
of Justice Kennedy’s concurrence, as recognizing that “the
constitutionality of [mandatory detention] is a function of the
length of the detention.” Id. at 232 (“At a certain point,
continued detention becomes unreasonable and the Executive
Branch’s implementation of § 1226(c) becomes
unconstitutional unless the Government has justified its
actions at a hearing inquiring into whether continued
detention is consistent with the law’s purposes of preventing
flight and dangers to the community.”); see also Ly v.
Hansen, 351 F.3d 263, 271 (6th Cir. 2003) (“[T]he Court’s
discussion in Kim is undergirded by reasoning relying 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. That is not the
case here.”).
Thus, it is clear that while mandatory detention under
§ 1226(c) is not constitutionally impermissible per se, the
statute cannot be read to authorize mandatory detention of
criminal aliens with no limit on the duration of imprisonment.
As we held in Casas, “the prolonged detention of an alien
without an individualized determination of his dangerousness
or flight risk would be constitutionally doubtful.” 535 F.3d
20 RODRIGUEZ V . ROBBINS
at 951 (internal quotation marks omitted). Consistent with
our previous decisions, we conclude that, to avoid
constitutional concerns, § 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.” Zadvydas, 533 U.S. at 682.
The government relies heavily on Demore in advancing
several arguments that the entry of the preliminary injunction
was improper, but none is ultimately persuasive. First, the
government directs us to the statutory history of §1226(c),
arguing that by enacting the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”), Congress
intentionally undid provisions of the 1990 and 1991
amendments to the Immigration and Nationality Act (“INA”)
that previously granted some discretion to the Attorney
General to release criminal aliens pending removal. The
government cites Demore’s observation that Congress’s
enactment of § 1226(c) hinged on its determination that the
flight of aliens released pending removal proceedings, and
crimes perpetrated with frequency by those who absconded
under the prior regime, were undermining national
immigration policy. See Demore, 538 U.S. at 518–19.
Moreover, the government argues that the statute’s use of the
mandatory “shall” plainly contemplates mandatory detention
without a bond hearing. It notes that § 1226(a), which was
enacted contemporaneously with § 1226(c), uses
discretionary language and that § 1226(c)(2) provides for
narrow exceptions to mandatory detention for criminal aliens
who materially assist law enforcement. These statutes, the
government contends, indicate that Congress knew how to
provide for release on bond if it wished to do so. Finally, the
government argues that under Zadvydas and Demore,
mandatory detention under 1226(c) without a bond hearing is
RODRIGUEZ V . ROBBINS 21
permissible because such detention has a definite termination
point.
We are not convinced by the government’s reasoning,
which relies on a broad reading of Demore foreclosed by our
post-Demore cases. Despite the Supreme Court’s holding
that mandatory detention under § 1226(c) without an
individualized determination of dangerousness or flight risk
is constitutional under some circumstances, our subsequent
decisions applying Demore make clear that Demore’s reach
is limited to relatively brief periods of detention. See Casas,
535 F.3d at 951. Nothing about the district court’s
preliminary injunction order requires reading the mandatory
detention requirement out of § 1226(c), because “the
mandatory, bureaucratic detention of aliens under § 1226(c)
was intended to apply for only a limited time,” after which
“the Attorney General’s detention authority rests with
§ 1226(a).” Id. at 948. In other words, the preliminary
injunction does not require that anyone held under § 1226(c)
receive a bond hearing. Rather, under a fair reading of our
precedent, when detention becomes prolonged, § 1226(c)
becomes inapplicable. “As a general matter, detention is
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. Therefore, subclass members who
have been detained under § 1226(c) for six months are
entitled to a bond hearing because the applicable statutory
law, not constitutional law, requires one. Thus, while the
government may be correct that reading §1226(c) as anything
other than a mandatory detention statute is not a “plausible
interpretation[] of [the] statutory text,” Clark v. Martinez,
543 U.S. 371, 381 (2005), it does not argue that reading an
implicit temporal limitation on mandatory detention into the
statute is implausible. Indeed, it could not do so, because
22 RODRIGUEZ V . ROBBINS
such an argument is foreclosed by our decisions in Tijani and
Casas.
The government’s attempts to distinguish our post-
Demore authority are unavailing. It is certainly true, as the
government notes, that by its terms Casas concerned an alien
who had received an administratively final removal order,
sought judicial review, and obtained a remand to the BIA;
thus, it did not expressly apply to aliens awaiting the
conclusion of their initial administrative proceedings. But
this seems to us a distinction without a difference, and the
government does not present a persuasive reason why the
same protections recognized in Casas should not apply to
pre-removal order detainees. “Regardless of the stage of the
proceedings, the same important interest is at stake—freedom
from prolonged detention.” Diouf II, 634 F.3d at 1087.
Indeed, if anything, because LPRs detained prior to the entry
of an administratively final removal order have not been
adjudicated removable, they would seem to have a greater
liberty interest than individuals detained pending judicial
review or the pendency of a motion to reopen before the
agency, and thus a greater entitlement to a bond hearing. See
id. at 1086–87 (suggesting that a detainee who is subject to a
final order of removal may have a “lesser liberty interest in
freedom from detention”).
The government is likewise correct that Diouf II by its
terms addressed detention under § 1231(a)(6), not § 1226(c)
or § 1225(b). But Diouf II strongly suggested that
immigration detention becomes prolonged at the six-month
mark regardless of the authorizing statute. See, e.g., id. at
1091–92 (“When detention crosses the six-month threshold
and release or removal is not imminent, the private interests
at stake are profound.”). Even if Diouf II does not squarely
RODRIGUEZ V . ROBBINS 23
hold that detention always becomes prolonged at six months,
that conclusion is consistent with the reasoning of Zadvydas,
Demore, Casas and Diouf II, and we so hold.
The government’s remaining argument against what it
calls “a six-month blanket rule” is that such a rule would be
contrary to the decisions of other circuits and to the principle
that due process inherently must be determined through case-
by-case adjudication. Neither contention is compelling.
First, the government cites the Sixth Circuit’s decision in Ly,
351 F.3d at 271–73, and the Third Circuit’s decision in Diop,
656 F.3d at 234, both of which declined to establish a bright-
line time limit on detention without a bond hearing. But both
Diop and Ly held that there are substantive limits on the
length of detention under § 1226(c), and those cases are thus
contrary to the government’s position that Demore permits
mandatory detention under § 1226(c) irrespective of duration.
To the extent Diop and Ly reject a categorical time limit, their
reasoning in that respect is inapplicable here, both because
this petition is a class action (and thus relief will perforce
apply to all detainees) and because we already indicated in
Diouf II that detention is presumptively prolonged when it
surpasses six months in duration. More fundamentally, the
preliminary injunction does not, as the government claims,
“embrace an inflexible blanket approach to due process
analysis.” Rather, the injunction requires individualized
decision-making—in the form of bond hearings that conform
to the procedural requirements set forth in Singh. Thus, the
1226(c) subclass members are likely to succeed on the merits.
2. The 1225(b) subclass.
We next address whether the prolonged detention of
“applicants for admission” under Section 1225(b) raises the
24 RODRIGUEZ V . ROBBINS
same “serious constitutional concerns” that are implicated by
prolonged detention of other detained aliens. The
government argues that the 1225(b) subclass members enjoy
lesser constitutional protections than other detained aliens.
Of course, if the statute does not raise constitutional concerns,
then there is no basis for employing the canon of
constitutional avoidance. See Ma v. Ashcroft, 257 F.3d 1095,
1106–07 (9th Cir. 2001).
The government emphasizes the “unique constitutional
position of arriving aliens” to argue that prolonged detention
of 1225(b) subclass members does not implicate
constitutional concerns. This argument relies principally on
Shaughnessy v. United States ex rel. Mezei (Mezei), 345 U.S.
206 (1953) and Barrera-Echavarria v. Rison, 44 F.3d 1441(9th Cir. 1995) (en banc), superseded by statute as stated in
Xi v. I.N.S., 298 F.3d 832, 837–38 (9th Cir. 2002)). In Mezei,
the Supreme Court rejected a constitutional challenge to the
multi-year detention on Ellis Island of an LPR returning from
a 19-month trip abroad. See 345 U.S. at 214. Adverting to
the now-defunct statutory distinction between “exclusion”
and “deportation” proceedings, the Court held that:
[A]liens who have once passed through our gates,
even illegally, may be expelled only after proceedings
conforming to traditional standards of fairness
encompassed in due process of law . . . . But an alien
on the threshold of initial entry stands on a different
footing: Whatever the procedure authorized by
Congress is, it is due process as far as an alien denied
entry is concerned.
Id. at 212 (internal quotation marks and citations omitted). In
Barrera-Echavarria, we applied Mezei to uphold the
RODRIGUEZ V . ROBBINS 25
constitutionality of prolonged detention of excludable aliens
under the pre-IIRIRA version of 8 U.S.C. § 1226(e). 44 F.3d
at 1448. We held that the “entry fiction” doctrine, as
explained by the Supreme Court, “squarely precludes a
conclusion that [excludable aliens] have a constitutional right
to be free from detention, even for an extended time.” Id. at
1449.
It seems clear that many, if not most, members of the
1225(b) subclass would fall into the category of aliens
described in Mezei and Barrera-Echavarria as entitled to
limited due process protection. See Barrera-Echavarria,
44 F.3d at 1450 (“Mezei established what is known as the
‘entry fiction,’ which provides that although aliens seeking
admission into the United States may physically be allowed
within its borders pending a determination of admissibility,
such aliens are legally considered to be detained at the border
and hence as never having effected entry into this country
. . . . Noncitizens who are outside United States territories
enjoy very limited protections under the United States
Constitution.”) (emphasis added) (internal quotations and
citations omitted). Nonetheless, we have reason to question
whether Mezei and Barrera-Echavarria are squarely apposite
to the inquiry before us.
First, both cases were decided under pre-IIRIRA law.
Because the cases apply to the former category of
“excludable aliens,” it is not clear that the class of aliens to
whom Mezei and Barrera-Echavarria applied is coextensive
with the 1225(b) subclass in this case. As we explained in Xi:
The INA is no longer denominated in terms of
“entry” and “exclusion.” IIRIRA replaced
these terms with the broader concept of
26 RODRIGUEZ V . ROBBINS
“admission.” Section 1101(a)(13), which
formerly defined “entry” as “any coming of
an alien into the United States, from a foreign
port or place . . . ,” 8 U.S.C. [§] 1101(a)(13)
(1994), now defines “admission” to mean “the
lawful entry of [an] alien into the United
States after inspection and authorization by an
immigration officer,” 8 U.S.C. [§]
1101(a)(13)(A) (2002). Concomitantly,
IIR IR A dropped the concept of
“excludability” and now uses the defined term
of “inadmissibility.” Although the grounds for
being deemed inadmissible are similar to
those for being deemed excludable, compare
8 U.S.C. § 1182 (1994) with 8 U.S.C. § 1182
(2002), there are substantial differences
between the two statutes.
298 F.3d at 838. Of course, this does not undermine Barrera-
Echavarria’s reasoning as it relates to aliens in the 1225(b)
subclass to whom the entry fiction clearly applies (likely the
vast majority). But 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. See
Clark, 543 U.S. at 380 (2005) (“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.”). Thus, the dispositive question is not
whether the government’s reading of § 1225(b) is permissible
in some (or even most) cases, but rather whether there is any
RODRIGUEZ V . ROBBINS 27
single application of the statute that calls for a limiting
construction.9
Under current law, § 1225(b) applies to some LPRs
returning from abroad who have not been absent for the
prolonged period described in Mezei. See 8 U.S.C.
§ 1101(a)(13)(C) (setting forth six categories of LPRs who
may be treated as seeking admission, only one of which
9
At oral argument, government counsel contended that the district court
record is devoid of any evidence suggesting that members of the 1225(b)
subclass include returning LPRs. This argument reveals a fundamental
misunderstanding of class actions litigated under Rule 23(b)(2) of the
Federal Rules of Civil Procedure, including this one. See Rodriguez I,
591 F.3d at 1125–26. “The key to the (b)(2) class is ‘the indivisible nature
of the injunctive or declaratory remedy warranted— the notion that the
conduct is such that it can be enjoined or declared unlawful only as to all
of the class members or as to none of them.’” Wal-Mart Stores, Inc. v.
Dukes, 131 S. Ct. 2541, 2557 (2011) (quoting Richard A. Nagareda, Class
Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132
(2009)). It would be illogical for us to conclude that the government’s
reading of the statute is permissible just because, by happenstance, there
are currently no detainees in the Central District who possess the requisite
constitutional status to render ICE’s preferred practice illegal. Nor could
we countenance such a result in light of the Supreme Court’s admonition
that, “when deciding which of two plausible statutory constructions to
adopt, a court must consider the necessary consequences of its choice. If
one of them would raise a multitude of constitutional problems, the other
should prevail—whether or not those constitutional problems pertain to
the particular litigant before the Court.” Clark, 543 U.S. at 380–81. In
other words, if the canon of constitutional avoidance requires us to read
the statute such that bond hearings are available to individuals who have
been detained for six months, then under Clark such hearings must be
available to everyone detained under the statute.
28 RODRIGUEZ V . ROBBINS
relates to prolonged absences from U.S. territory).10 “It is
well established that if an alien is a lawful permanent resident
of the United States and remains physically present there, he
is a person within the protection of the Fifth Amendment,”
and an LPR whose absence is not prolonged is assimilated to
that same constitutional status. Kwong Hai Chew v. Colding,
344 U.S. 590, 596 (1953). For instance, an LPR who left the
United States briefly to undertake illegal activity abroad, such
10
Section 1101(a)(13)(C) provides:
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
admitted to the United States after inspection and
authorization by an immigration officer.
RODRIGUEZ V . ROBBINS 29
as alien smuggling, would clearly be included in the 1225(b)
subclass; under 8 U.S.C. § 1101(a)(13)(C)(iii), he would be
treated as an alien seeking admission on account of having
“engaged in illegal activity after having departed the United
States.” See United States v. Tsai, 282 F.3d 690, 696 & n.5
(9th Cir. 2002). But in Landon v. Plasencia, 459 U.S. 21(1982), the Supreme Court specifically held that an LPR
arrested for alien smuggling upon return from a brief trip
abroad is entitled to due process protection, specifically
because Mezei is inapplicable in such a scenario. See id. at 34
(holding that Mezei “did not suggest that no returning resident
alien has a right to due process,” and that “it does not govern
this case, for Plasencia was absent from the country only a
few days”). As such, it is clear that the 1225(b) subclass
includes at least some aliens who are not subject to the entry
fiction doctrine, and thus under Clark the statute must be
construed with these aliens in mind.11
This conclusion is buttressed by the fact that the
government’s position is facially inconsistent with our
binding holding in Nadarajah. Nadarajah concerned an
asylum seeker who had been granted relief but who remained
detained pending review of his case by the Attorney General.
443 F.3d at 1071–75. Although we examined Nadarajah’s
claims under the paradigm of Zadvydas, and therefore
considered only the possibility of “indefinite” (as opposed to
“prolonged”) detention, we nonetheless held that § 1225(b)
is susceptible to a saving construction to avoid constitutional
11
This analysis also disposes of the government’s reliance on Alvarez-
Garcia v. Ashcroft, 378 F.3d 1094 (9th Cir. 2004), which involved an
individual petition for review brought by an alien who entered the United
States without inspection and thus clearly was subject to the doctrine
described in Mezei and Barrera-Echavarria. See id. at 1095, 1097–98.
30 RODRIGUEZ V . ROBBINS
concerns. See id. at 1076–78. While this analysis does not
directly answer the central question presented by this appeal,
i.e. whether bond hearings are required at the six month mark,
it does undermine the government’s arguments in two
important respects. First, the government argues that
§ 1225(b) is too unambiguous for the doctrine of
constitutional avoidance to apply. But it is not clear how this
could be so in light of Nadarajah, where we have already
applied the canon to this very statute. Second, and relatedly,
the government’s argument that there is no due process
“floor” for the treatment of aliens subject to §1225(b) is
difficult to reconcile with a binding decision that already
construed the statute expressly to avoid constitutional
concerns. Thus, read together, Plasencia, Clark, and
Nadarajah suggest that we must construe § 1225(b) to avoid
potential constitutional concerns raised by its application to
LPRs who enjoy due process protection.
With this premise in place, the likelihood of success of
the 1225(b) subclass is determined by the same analysis
applicable to the 1226(c) subclass, which we conclude has
demonstrated a likelihood of success. To the extent our
holdings in Tijani, Casas, and Diouf II require that we
construe mandatory immigration detention authority as time-
limited and that bond hearings occur when detention becomes
“prolonged,” there is no basis for distinguishing between the
two sub-classes in this regard. Indeed, if anything it would
appear that the LPRs who fall within § 1225(b)’s purview
should enjoy greater constitutional protections than criminal
aliens who have already failed to win relief in their removal
proceedings, as in Casas. See Johnson v. Eisentrager,
339 U.S. 763, 770 (1950) (“The alien, to whom the United
States has been traditionally hospitable, has been accorded a
generous and ascending scale of rights as he increases his
RODRIGUEZ V . ROBBINS 31
identity with our society. Mere lawful presence in the
country creates an implied assurance of safe conduct and
gives him certain rights; they become more extensive and
secure when he makes preliminary declaration of intention to
become a citizen, and they expand to those of full citizenship
upon naturalization.”).
Appellees suggest two potential ways we could apply the
canon of constitutional avoidance in construing § 1225(b).
First, we could simply read a bond hearing requirement into
the statute, as we did with regard to § 1231(a)(6) in the Diouf
opinions. See Diouf II, 634 F.3d at 1089; Diouf v. Mukasey
(Diouf I), 542 F.3d 1222, 1234 (9th Cir. 2008) (“We have
specifically construed § 1231(a)(6) to permit release on
bond.”) (citing Doan v. I.N.S., 311 F.3d 1160, 1162 (9th Cir.
2002)). This first suggestion, however, is problematic. For
one thing, this reading would conflict with Department of
Homeland Security regulations, at least as applied to some
subclass members, because current regulations
unambiguously strip IJs of the authority to “redetermine
conditions of custody imposed by the Service with respect to”
arriving aliens. See 8 C.F.R. § 1003.19(h)(2)(i)(B).
Moreover, it is difficult to distinguish the statute’s language
from that of § 1226(c), which also provides that aliens who
fall within its scope “shall” be detained and which the
Supreme Court has characterized as mandating detention.
See Demore, 538 U.S. at 513–14; compare 8 U.S.C.
§ 1226(c)(1) (“The Attorney General shall take into custody
any alien who . . . .”), with id. § 1225(b)(2)(A) (“[I]f 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 . . . .”). Appellees
argue that the existence of the parole scheme itself
undermines the government’s mandatory construction of the
32 RODRIGUEZ V . ROBBINS
statute, but § 1226(c) also contains a statutory exception to
mandatory detention. See 8 U.S.C. § 1226(c)(2) (“The
Attorney General may release an alien described in paragraph
(1) only if the Attorney General decides . . . that release of the
alien from custody is necessary to provide protection to a
witness, a potential witness, a person cooperating with an
investigation into major criminal activity, or an immediate
family member or close associate of a witness, potential
witness, or person cooperating with such an investigation, and
the alien satisfies the Attorney General that the alien will not
pose a danger to the safety of other persons or of property and
is likely to appear for any scheduled proceeding.”). If
anything, the existence of these narrow and explicit
exceptions to both statutes’ reach is evidence of their drafters’
intent to make detention mandatory in all cases to which the
exceptions are inapplicable. Thus, Appellees’ first suggested
construction is not a “fairly possible” reading of the statute as
required for the canon of constitutional avoidance to apply.
Appellees’ second suggested construction fares
considerably better. Under this approach, we would simply
follow Casas and hold that, to the extent detention under
§1225(b) is mandatory, it is implicitly time-limited. This
approach fits more naturally into our case law, which has
suggested that after Demore, brief periods of mandatory
immigration detention do not raise constitutional concerns,
but prolonged detention—specifically longer than six
months—does. This reading also has the advantage of
uniformity, which the Supreme Court has suggested is an
important value in matters of statutory construction. Cf.
Zadvydas, 533 U.S. at 680 (“In order to limit the occasions
when courts will need to make the difficult judgments called
for by the recognition of this necessary Executive leeway, it
is practically necessary to recognize a presumptively
RODRIGUEZ V . ROBBINS 33
reasonable period of detention . . . . [F]or the sake of uniform
administration in the federal courts, six months is the
appropriate period.”). Of course, 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 alien would shift to § 1226(a), which is discretionary and
which we have already held requires a bond hearing. See
Casas, 535 F.3d at 948.
Finally, we note that the discretionary parole system
available to § 1225(b) detainees is not sufficient to overcome
the constitutional concerns raised by prolonged mandatory
detention. Indeed, any argument to that effect is clearly
foreclosed by our holding in Singh, which held that bond
hearings must be held before a neutral IJ with the government
bearing the burden of proof by clear and convincing evidence.
See 638 F.3d at 1203–04. The parole process is purely
discretionary and its results are unreviewable by IJs. Cf.
Casas, 535 F.3d at 949 (“We hold 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.”
(emphasis added)). Moreover, release decisions are based on
humanitarian considerations and the public interest, see
8 U.S.C. § 1182(d)(5)(A), not whether the alien “is a flight
risk or will be a danger to the community.” Singh, 638 F.3d
at 1203 (quoting Casas, 535 F.3d at 951). To the extent the
principles of Tijani, Casas and Diouf II are applicable to the
1225(b) subclass, the constitutionally grounded hearing
requirements set forth in Singh are also applicable. The
government does not, and could not, contend that
discretionary parole satisfies Singh. Thus, Appellees are
likely to succeed on the merits of their claim that § 1225(b)
34 RODRIGUEZ V . ROBBINS
must be construed to authorize only six months of mandatory
detention, after which detention is authorized by § 1226(a)
and a bond hearing is required.
B. Irreparable Harm
Having determined that Appellees are likely to succeed on
the merits, we consider the remaining Winter factors. We
conclude that, here too, the Winter factors favor Appellees.
Appellees clearly face irreparable harm in the absence of
the preliminary injunction. “It is well established that the
deprivation of constitutional rights ‘unquestionably
constitutes irreparable injury.’” Melendres v. Arpaio,
695 F.3d 990, 1002 (9th Cir. 2012) (quoting Elrod v. Burns,
427 U.S. 347, 373 (1976)). Thus, it follows from our
conclusion that the government’s reading of Sections 1226(c)
and 1225(b) raises serious constitutional concerns “that
irreparable harm is likely, not just possible” in the absence of
preliminary injunctive relief. Alliance for the Wild Rockies
v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).
There is no dispute that at least some individuals who
would be detained if not provided a bond hearing will be
granted conditional release under this injunction. Moreover,
the government does not dispute that some subclass members
detained under § 1225(b) and § 1226(c) will win relief from
removal, further undermining any purported rationale for
continued detention. Thus, the preliminary injunction is
necessary to ensure 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. Appellees have therefore clearly
shown a risk of irreparable harm.
RODRIGUEZ V . ROBBINS 35
C. Balance of the Equities
The government provides almost no evidence that it
would be harmed in any way by the district court’s order,
other than its assertion that the order enjoins “presumptively
lawful” government activity and is contrary to the plain
meaning of the statutes. These arguments are obviously
premised on the government’s view of the merits because it
cannot suffer harm from an injunction that merely ends an
unlawful practice or reads a statute as required to avoid
constitutional concerns. Cf. Zepeda v. I.N.S., 753 F.2d 719,
727 (9th Cir. 1983) (“[T]he INS cannot reasonably assert that
it is harmed in any legally cognizable sense by being enjoined
from constitutional violations.”).12 Thus, in light of the major
hardship posed by needless prolonged detention, we conclude
that the balance of the equities favors Appellees.
D. The Public Interest
The government claims that “the government’s interest is
presumed to be the ‘public’s interest’ in this case.” It
12
The government also contends that Appellees delayed in bringing their
motion for a preliminary injunction. See Oakland Tribune, Inc. v.
Chronicle Publ’g Co., 762 F.2d 1374, 1377 (9th Cir. 1985) (“Plaintiff’s
long delay before seeking a preliminary injunction implies a lack of
urgency and irreparable harm.”). But the government identifies no
prejudice that it has suffered as a result of this delay, and in any event the
district court did not abuse its discretion by declining to withhold
preliminary relief from a constitutionally suspect government practice on
the basis that an injunction should have been requested sooner. Moreover,
as Appellees point out, the government declined to seek certiorari in Diouf
II— on which Appellees’ motion relied— only in February of 2012. The
parties thereafter engaged in settlement negotiations, which apparently
stalled in March. Thus, Appellees’ June 2012 preliminary injunction
motion was not particularly belated.
36 RODRIGUEZ V . ROBBINS
contends that the public interest is undermined by the heavy
burden the injunction places on administrative resources and
by the government’s potential inability to prepare for bond
hearings in time to comply with the district court’s order. But
the government’s arguments are flawed in several respects.
First, it cites Nken v. Holder, 556 U.S. 418 (2009), for the
general proposition that the public interest always militates
against enjoining government practices. But Nken does not
contain any such holding. While the Court observed that
there is “always a public interest in prompt execution of
removal orders,” which “may be heightened by the
circumstances . . . if, for example, the alien is particularly
dangerous, or has substantially prolonged his stay by abusing
the processes provided to him,” id. at 436, it did not purport
to create a blanket presumption in favor of the government in
all preliminary injunction cases. Moreover, the bond hearings
that this injunction requires are intended to determine
precisely whether each individual alien is dangerous or a
flight risk and to permit the conditional release only of those
who are not. By its terms, the injunction does not require the
government to release anyone. Thus, Nken does not support
the government’s position.
The government’s arguments regarding the resources
required to implement the injunction are also not compelling.
Hundreds of hearings have already occurred under the district
court’s order, belying any suggestion that the preliminary
injunction is prohibitively burdensome. Moreover, even if
the government faced severe logistical difficulties in
implementing the order—a premise that Appellees
dispute—they would merely represent the burdens of
complying with the applicable statutes, as construed to avoid
practices occasioned by an interpretation of the statutes that
risks running afoul of the Constitution. “Generally, public
RODRIGUEZ V . ROBBINS 37
interest concerns are implicated when a constitutional right
has been violated, because all citizens have a stake in
upholding the Constitution.” Preminger v. Principi, 422 F.3d
815, 826 (9th Cir. 2005). It stands to reason that the public
interest also benefits from a preliminary injunction that
ensures that federal statutes are construed and implemented
in a manner that avoids serious constitutional questions.
IV.
Contrary to the government’s rhetoric, this injunction will
not flood our streets with fearsome criminals seeking to
escape the force of American immigration law. The district
court’s narrowly tailored order provides individuals, whose
right to be present in the United States remains to be decided,
a hearing where a neutral decision-maker can determine
whether they might deserve conditional release from the
prison-like setting where they might otherwise languish for
months or years on end. These hearings simply ensure that
“the nature and duration of commitment bear some
reasonable relation to the purpose for which the individual is
committed.” Jackson v. Indiana, 406 U.S. 715, 738 (1972).
“[F]reedom from physical restraint ‘has always been at
the core of the liberty protected by the Due Process Clause
from arbitrary governmental action.’” Kansas v. Hendricks,
521 U.S. 346, 356 (1997) (quoting Foucha v. Louisiana,
504 U.S. 71, 80 (1992)). While ICE is entitled to carry out its
duty to enforce the mandates of Congress, it must do so in a
manner consistent with our constitutional values.
AFFIRMED.