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Banos v. Asher

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

April 4, 2018

ARTURO MARTINEZ BANOS, et al., Plaintiffs-Petitioners,
NATHALIE ASHER, et al, Defendants-Respondents.


          JAMES L. ROBART United States District Judge.


         Before the court are the Report and Recommendation of United States Magistrate Judge Brian A. Tsuchida (R&R (Dkt. # 77)) and Defendants-Respondents Nathalie Asher, Lowell Clark, Thomas D. Homan, John F. Kelly, James McHenry, and Jefferson B. Session's (collectively, "the Government") objections thereto (Obj. (Dkt. #78)). The Government and Plaintiff Edwin Flores Tejada both subsequently filed notices of supplemental authority. (See 1st PI. Not. (Dkt. # 80); Def. Not. (Dkt. # 81); 2nd PI. Not. (Dkt. # 82).) Having carefully reviewed all of the foregoing, along with all other relevant documents and the governing law, the court ADOPTS the Report and Recommendation (Dkt. # 77).


         On January 23, 2018, Magistrate Judge Tsuchida issued a Report and Recommendation that recommends granting in part and denying in part the parties' cross-motions for summary judgment. (R&R at 2.) The Government filed its objections on February 23, 2018, asking that the court reject Magistrate Judge Tsuchida's recommendation. (Obj. at 1.) A few days later, on February 27, 2018, the Supreme Court decided Jennings v. Rodriguez, - U.S. -, 138 S.Ct. 830 (2018), which held that the Ninth Circuit had erroneously applied the canon of constitutional avoidance in finding that 8 U.S.C. §§ 1225(b)(1), 1225(b)(2), and 1226(c) entitle individuals to periodic bond hearings when their detention becomes prolonged at six months. Jennings, 138 S.Ct. at 842-47. Both parties submitted notices of supplemental authority discussing the impact of Jennings on the case at hand. (See 1st PL Not.; Def. Not.; 2nd PL Not.)

         Accordingly, the court first determines the impact, if any, that Jennings has on the issues presented in the Report and Recommendation. The court then considers the Report and Recommendation.

         A. Jennings and Its Impact

         The Report and Recommendation relies upon Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) (“Diouf II”), and its analysis of U.S.C. § 1231(a)(6) to conclude that class members should "be afforded custody hearings before an [immigration judge] ... after they have been detained for 180 days and every 180 days thereafter." (R&R at 10-11; see id. at 7-11.) The Government argues that Jennings calls into question Diouf II, and consequently, the Report and Recommendation. (See Def. Not. at 2-3.) The court disagrees.

         Diouf II remains binding circuit authority unless it is "clearly irreconcilable" with higher authority. See United States v. Robertson, 875 F.3d 1281, 1291 (9th Cir. 2017). Under the "clearly irreconcilable" standard, "it is not enough for there to be some tension between the intervening high authority and prior circuit precedent." Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir. 2012). So long as the court "can apply ... prior circuit precedent without running afoul of the intervening authority, " it must do so. Id. (internal quotation marks omitted).

         Diouf II and Jennings are not "clearly irreconcilable." See Robertson, 875 F.3d at 1291. In Jennings, the Supreme Court reversed the Ninth Circuit's holding, pursuant to the canon of constitutional avoidance, regarding §§ 1225(b)(1), 1225(b)(2), and 1226(c). In so concluding, Jennings explicitly contrasted §§ 1225 and 1226-the statutes at issue in that case-with § 1231(a)(6)-the statute at issue in Diouf II. See 138 S.Ct. at 843-44. For instance, the Supreme Court recognized that §§ 1225 and 1226 utilize the mandatory language "shall, " whereas § 1231(a)(6) utilizes the discretionary language "may"; the "may" language in § 1231(a)(6) suggests ambiguity that leaves space for constitutional avoidance. Jennings, 138 S.Ct. at 843.

         Thus, Jennings concerns statutes-§§ 1225 and 1226-that were not at issue in Diouf II and are not at issue here. See Jennings, 138 S.Ct. at 843; Diouf II, 634 F.3d at 1086. In fact, Jennings expressly distinguished § 1231(a)(6), the statute at issue here. See Jennings, 138 S.Ct. at 843-44. Thus, the court agrees with the other district courts to have considered the viability of Diouf II after Jennings: "[A]t a minimum . .. Jennings left for another day the question of bond hearing eligibility under [§] 1231(a), and at best, [Jennings shows] that the Ninth Circuit correctly invokes the doctrine of constitutional avoidance" in Diouf II. See Ramos v. Sessions, et al, No. 18-cv-00413, 2018 WL 1317276, at *3 (N.D. Cal. Mar. 13, 2018); see also Borjas-Calix v. Sessions, et al, No. CV-16-00685-TUC-DCB, 2018 WL 1428154, at *6 (D. Ariz. Mar. 22, 2018) (holding that Jennings did not impact Diouf II because Jennings was specifically directed to § 1225, etseq., and not § 1231(a)(6)).

         The court, therefore, concludes that Diouf II remains binding law.

         B. Report and Recommendation

         The court next addresses the Report and Recommendation. A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. Fed.R.Civ.P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Id. "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). The court reviews de novo those portions of a report and recommendation to which a party specifically objects in writing. United States v. Reyna-Tapia,328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). "The statute ...

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