United States District Court, W.D. Washington, Seattle
ORDER ADOPTING REPORT AND RECOMMENDATION
L. ROBART United States District Judge.
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).
BACKGROUND AND ANALYSIS
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.)
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
Jennings and Its Impact
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.
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).
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
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 §
court, therefore, concludes that Diouf II remains
Report and Recommendation
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 ...