United States District Court, W.D. Washington, Seattle
ORDER GRANTING MOTION FOR LEAVE TO FILE AMENDED
COMPLAINT AND STRIKING FEBRUARY 1, 2017 ORAL
A TSUCHIDA United States Magistrate Judge
Martinez Baños (“Mr. Martinez”), the sole
named plaintiff-petitioner in this putative class action and
28 U.S.C. § 2241 immigration habeas petition, has moved
for leave to file an amended complaint. Dkt. 28; see
also Dkt. 28-1 (proposed amended complaint). The
Government opposes the request. Dkt. 36. Having considered
the parties' briefs, the balance of the record, and the
governing law, the Court finds that oral argument on the
motion for leave to amend is unnecessary, GRANTS Mr.
Martinez's motion, STRIKES the February 1, 2017 oral
argument on Mr. Martinez's motion for class
certification, and ORDERS the parties to submit a joint
status report as discussed herein.
following facts are taken from Mr. Martinez's habeas
petition. Mr. Martinez, a native and citizen of Mexico, first
entered the United States around 1997 without any lawful
status. He was ordered removed from the United States in
2009, and since then, he has returned several times and been
summarily removed. When he was arrested in March 2015,
however, Mr. Martinez expressed a fear of return to Mexico
and underwent a Reasonable Fear Interview pursuant to 8
C.F.R. § 208.31(b). The Asylum Officer found he
demonstrated a reasonable fear of torture and referred his
case to an Immigration Judge (“IJ”) for
withholding only proceedings.
October 8, 2015, after Mr. Martinez had been in immigration
detention for 196 days, he received an individualized bond
hearing before an IJ. The IJ granted Mr. Martinez release on
a $10, 000.00 bond, which he paid. The Department of Homeland
Security (“DHS”) appealed the IJ's bond
determination to the Board of Immigration Appeals
(“BIA”), and on July 27, 2016, a three-member
panel of the BIA reversed the IJ's custody determination
in a split decision. The majority vacated the IJ's
decision granting a $10, 000.00 bond, denied Mr.
Martinez's request for release on bond, and ordered that
he “shall be detained without bond pending
proceedings.” Despite the BIA's order, ICE has not
rearrested him, and he is living in Othello, Washington.
September 14, 2016, Mr. Martinez filed the instant action
through counsel, challenging the Government's policy of
denying individualized bond hearings to individuals in
withholding only proceedings. Dkt. 1. He sought to represent
a class defined as:
All individuals who are detained in the Western District of
Washington who are placed in withholding only proceedings
under 8 C.F.R. § 1208.31(e) who,
1) are thereafter denied an individualized custody
determination before an Immigration Judge or,
2) on or before six months of civil immigration detention,
are not provided automatic individualized custody hearings
where Defendants must justify their continued detention.
Dkt. 1 at 18-19; see also Dkt. 6 at 2-3 (motion for
class certification). As relief, Mr. Martinez sought both
declaratory and injunctive relief. Dkt. 1 at 22-23.
Court ordered that the petition be served and set a deadline
for moving for class certification. Dkt. 3. On October 20,
2016, Mr. Martinez filed a motion for class certification.
Dkt. 6. On November 7, 2016, the Government moved to dismiss
Mr. Martinez's individual claims. Dkt. 16. On December 1,
2016, Mr. Martinez moved for a preliminary injunction. Dkt.
23. In each of these instances, the non-moving party opposed
the motion and the moving party filed a reply.
December 13, 2016, the Court set oral argument on the motion
for class certification for February 1, 2017, and ordered the
parties to submit supplemental briefing. Dkt. 25. Relevant to
the instant motion for leave to amend, the Court stated that
it appeared Mr. Martinez was not a member of the proposed
class, which was limited to “detained”
individuals, and asked him to offer a solution. Dkt. 25 at
1-2. The Court also asked Mr. Martinez to address Rule
23(b)(2)'s requirements in light of the fact that ...