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Banos v. Asher

United States District Court, W.D. Washington, Seattle

January 25, 2017

ARTURO MARTINEZ BAÑOS, Plaintiff-Petitioner,
v.
NATHALIE ASHER, et al., Defendants-Respondents.

          ORDER GRANTING MOTION FOR LEAVE TO FILE AMENDED COMPLAINT AND STRIKING FEBRUARY 1, 2017 ORAL ARGUMENT

          BRIAN A TSUCHIDA United States Magistrate Judge

         Arturo 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.[1]

         BACKGROUND

         A. Mr. Martinez

         The 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.

         On 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.

         B. Procedural history

         On 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.

         The 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.

         On 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 ...


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