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Khoury v. Asher

United States District Court, W.D. Washington

March 11, 2014

BASSAM YUSUF KHOURY, et al., Plaintiffs,
v.
NATHALIE ASHER, et al., Defendants

For Bassam Yusuf Khoury, Alvin Rodriguez Moya, Pablo Carrera Zavala, on behalf of themselves as individuals and on behalf of others similarly situated, Plaintiffs: Christopher Strawn, LEAD ATTORNEY, Matt Adams, NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA), SEATTLE, WA; Eunice Lee, Judy Rabinovitz, LEAD ATTORNEYS, PRO HAC VICE, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NEW YORK, NY; Michael Tan, LEAD ATTORNEY, PRO HAC VICE, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS' RIGHTS PROJECT, SAN FRANCISCO, CA; Robert Pauw, LEAD ATTORNEY, Devin T Theriot-Orr, GIBBS HOUSTON PAUW, SEATTLE, WA; Sarah A Dunne, LEAD ATTORNEY, ACLU OF WASHINGTON, SEATTLE, WA.

For Lowell Clark, Warden, NWDC, Nathalie Asher, Field Office Director, ICE, Juan P Osuna, Director of EOIR, Eric H Holder Jr, Attorney General of the United States, Janet Napolitano, Secretary of the Department of Homeland Security, United States of America, Defendants: Hans H. Chen, Lori B Warlick, Timothy Michael Belsan, U.S. DEPARTMENT OF JUSTICE (BOX 868), WASHINGTON, DC.

For John Sandweg, Acting Director, Immigration and Customs Enforcement (ICE), Defendant: Hans H. Chen, Lori B Warlick, U.S. DEPARTMENT OF JUSTICE (BOX 868), WASHINGTON, DC.

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ORDER

The Honorable Richard A. Jones, United States District Court Judge.

I. INTRODUCTION

This matter comes before the court on three motions: Plaintiffs' motion to certify a class, their motion for a preliminary injunction on behalf of that class, and Defendants' motion to dismiss for failure to state a claim. Although the parties requested oral argument, oral argument is unnecessary as to the rulings the court makes in this order. For the reasons stated below, the court GRANTS Plaintiffs' motion for class certification (Dkt. # 2) and DENIES Defendants' motion to dismiss (Dkt. # 28). The court directs the clerk to TERMINATE Plaintiffs' motion

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for a preliminary injunction. Dkt. # 14. The parties shall meet and confer in accordance with this order to determine if Plaintiffs are satisfied that the declaratory relief that the court issues today will suffice to afford complete relief to Plaintiffs and the class they represent. If necessary, the court will conduct a hearing to determine whether to impose a permanent injunction to ensure that Defendants heed the court's declaratory ruling.

II. BACKGROUND

A. Plaintiffs Were Each Subject to Mandatory Detention As a Result of the Department of Homeland Security's Interpretation of 8 U.S.C. § 1226(c).

The federal government routinely locks away certain aliens who are in removal proceedings, denying them bond hearings via the so-called " mandatory detention" authority in a provision of the Immigration and Naturalization Act (" INA" ). 8 U.S.C. § 1226(c)(2). Department of Homeland Security (" DHS" ) officials arrest these aliens; the Department of Justice immigration courts who oversee the confinement of aliens deny them bond hearings. In the government's view, an alien who has committed an offense on a list at § 1226(c)(1) is subject to mandatory detention pending the resolution of removal proceedings. There can be no serious question that some of these aliens present no risk to their communities and no risk of flight, because some of them have been living in this country for decades and have families and careers. What the government thinks about a law that locks away peaceable family members without release, the court can only guess. What is certain is that the government takes the position that Congress tied its hands when it enacted the mandatory detention scheme. It asserts that it must detain these aliens without bond, regardless of whether that is remotely sensible immigration policy. But this case is not about whether mandatory detention makes sense; it is about whether the government properly interprets the detention mandate of § 1226(c). The government's interpretation follows the interpretation of the Board of Immigration Appeals (" BIA" ) in In re Rojas, 23 I. & N. Dec. 117, 125 (BIA 2001), where the BIA determined that any alien who had committed a listed offense was subject to mandatory detention pending the completion of removal proceedings.

The Plaintiffs in this case are aliens who DHS locked away in the Northwest Detention Center (" NWDC" ), an alien detention facility located in this judicial district. DHS locked Bassam Yusuf Khoury away in April 2013, and did not release him on bond until October 2013. DHS locked Alvin Rodriguez Moya away in April 2013, and did not release him on bond until October 2013. DHS locked Pablo Carrera Zavala away in April 2013 and released him on bond in August 2013 after it decided that he was not actually subject to mandatory detention. Asher Decl. (Dkt. # 36-1) ¶ 9. DHS commenced removal proceedings for each Plaintiff at about the time it took them into custody. So far as the court is aware, those proceedings have not reached a resolution even though they have been pending for nearly a year.

At the risk of understatement, the court observes that locking people up without bond hearings presents substantial Due Process concerns. The Supreme Court has held that the mandatory detention scheme of § 1226(c) is not a per se violation of the Due Process Clause of the Fifth Amendment. Demore v. Kim, 538 U.S. 510, 531, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). The Court grounded its holding, however, in its view that the average period of mandatory detention would be six weeks (the average time to complete removal

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proceedings in which the alien did not appeal) or " about five months" (in the event that the alien appealed an adverse removal ruling). Id. at 530. In Rodriguez v. Robbins, 715 F.3d 1127, 1137 (9th Cir. 2013), the court detailed Ninth Circuit rulings establishing that " Demore 's holding is limited to detentions of brief duration." In light of those rulings, the Rodriguez court upheld an injunction requiring aliens subject to mandatory detention within the Central District of California to receive a bond hearing within six months, and to be released on bond unless the government demonstrates that the alien presents a danger to the community or a risk of flight. Id. at 1131. It the government's apparent deference to Rodriguez and the precedent cited therein that allowed Mr. Khoury and Mr. Rodriguez to win release on bond after six months of mandatory detention.

Release after six months of mandatory detention is better than no release at all, but Plaintiffs argue that it is unlawful nonetheless. To understand their argument and the government's counterargument, the court considers in detail Plaintiffs' encounters with the mandatory detention scheme of § 1226(c).

Each Plaintiff committed a state crime, was convicted, and served his sentence. Each was released. Each returned to his family and community. Each was arrested years later by agents from Immigration and Customs Enforcement (" ICE" ), an agency within DHS. Mr. Khoury, a native of Palestine and lawful permanent resident of the United States since 1976, was released from state custody in June 2011 after serving a 30-day sentence on a drug charge. ICE agents arrested him in April 2013. Mr. Rodriguez, a native of the Dominican Republic and a lawful permanent resident of the United States since 1995, served the non-suspended portion of a three-year sentence on a drug charge and was released in August 2010. ICE agents arrested him in April 2013. Mr. Carrera, a native of Mexico who has lived in the United States since 1998, finished a 60-day sentence in February 2003. ICE agents arrested him in April 2013.

No one disputes, at least for purposes of this case, that Plaintiffs were deemed removable for committing crimes within the scope of 8 U.S.C. § 1226(c), the subsection of the INA that authorizes mandatory detention. Congress amended § 1226 as part of the Illegal Immigration Reform and Immigration Responsibility Act of 1996. In section 303 of that Act, it revised the existing detention scheme for aliens subject to removal and imposed a mandatory detention requirement for some of those aliens. It allowed for a transition period to implement mandatory detention. After two years in which the government operated under transitional rules, § 1226(c) took effect in 1998. Saysana v. Gillen, 590 F.3d 7, 10 n.2 (1st Cir. 2009). Its first paragraph provides as follows:

(1) Custody

The Attorney General [1] shall take into custody any alien who--
(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title,
(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), A(iii), (B), (C), or (D) of this title,
(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the

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alien has been sentence[d] to a term of imprisonment of at least 1 year, or
(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title,
when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.

That Mr. Rodriguez and Mr. Khoury committed an offense listed in subparagraphs (A) through (D) is not in dispute, at least not in this case. DHS's initial determination that Mr. Carrera committed one of those offenses was apparently an error, albeit one that DHS did not correct until Mr. Carrera had been confined for four months.

The first paragraph of § 1226(c) does not mandate detention without bond. The next paragraph does, at least in some circumstances:

(2) Release

The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides [that the alien's release is necessary to protect a ...

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