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Padilla v. U.S. Immigration & Customs Enforcement

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

July 2, 2019

YOLANY PADILLA, et al., Plaintiffs,
v.
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Defendants.

          ORDER ON MOTIONS RE: PRELIMINARY INJUNCTION

          Marsha J. Pechman United States Senior District Judge.

         The above-entitled Court, having received and reviewed:

1. Defendants' Motion to Vacate the Court's Preliminary Injunction Order (Dkt. No. 114), Plaintiffs' Response in Opposition (Dkt. No. 126), and Defendants' Reply in Support (Dkt. No. 128);
2. Plaintiffs' Motion for Modification of the Existing Preliminary Injunction (Dkt. No. 131), Defendants' Response in Opposition (Dkt. No. 139), and Plaintiffs' Reply in Support (Dkt. No. 140);

         all attached declarations and exhibits; and relevant portions of the record, and having heard oral argument on the motions, rules as follows:

         IT IS ORDERED that the injunction entered by this Court on April 5, 2019 is MODIFIED as follows:

         PART A: The Court AFFIRMS its previously-entered injunctive relief requiring Defendant Executive Office for Immigration Review to:

1. Conduct bond hearings within seven days of a bond hearing request by a class member, and release any class member whose detention time exceeds that limit;
2. Place the burden of proof on Defendant Department of Homeland Security in those bond hearings to demonstrate why the class member should not be released on bond, parole, or other conditions;
3. Record the bond hearing and produce the recording or verbatim transcript of the hearing upon appeal; and
4. Produce a written decision with particularized determinations of individualized findings at the conclusion of the bond hearing.

         PART B: The Court MODIFIES the injunction to find that the statutory prohibition at Immigration and Nationality Act § 235(b)(1)(B)(ii) against releasing on bond persons found to have a credible fear of persecution if returned to their country and awaiting a determination of their asylum application violates the U.S. Constitution; the Bond Hearing Class is constitutionally entitled to a bond hearing (under the conditions enumerated above) pending resolution of their asylum applications.

         IT IS FURTHER ORDERED that the injunction as modified will go into effect 14 days from the date of this order.

         Summary

         On March 16, 2019, this Court certified a Bond Hearing Class consisting of immigrants who have entered the United States without inspection, requested asylum, and who the Government has determined have a credible fear of persecution if they return home. The Court ruled, if the members of this class are given a bond hearing, it must comply with the Due Process Clause. An injunction ordering the Defendants to do so has already issued.

         The first decision was based, not only on the Court's analysis of the constitutional due process owed to these class members, but also on 50 years of statutory and case law supporting the right of persons detained for non-criminal reasons to be released upon posting bond. Shortly after that injunction was issued, the Attorney General published a decision announcing that immigrants in removal proceedings awaiting the determination of their application for asylum must be detained for the duration of that process, subject to release only under a highly-limited “parole” system adjudicated solely by immigration officials. In the wake of that decision, the Government moved to vacate the previously-entered injunction.

         It is the finding of this Court that it is unconstitutional to deny these class members a bond hearing while they await a final determination of their asylum request.

         Procedural Background

         On April 5, 2019, this Court entered an Order Granting Preliminary Injunction (Dkt. No. 110) requiring Defendant Executive Office for Immigration Review to:

1. Conduct bond hearings within seven days of a bond hearing request by a class member, and release any class member whose detention time exceeds that limit;
2. Place the burden of proof on Defendant Department of Homeland Security in those bond hearings to demonstrate why the class member should not be released on bond, parole, or other conditions;
3. Record the bond hearing and produce the recording or verbatim transcript of the hearing upon appeal; and
4. Produce a written decision with particularized determinations of individualized findings at the conclusion of the bond hearing.

         Compliance with the injunction was to be effected no later than May 5, 2019. Id. at 2.

         On April 16, 2019, the Attorney General (“AG”) issued a decision in Matter of M-S (27 I. & N. Dec. 509 (A.G. 2019)) overruling a 2005 Board of Immigration Appeals (“BIA”) determination in Matter of X-K (23 I. & N. Dec. 731 (BIA 2005) which had been cited in the preliminary injunction order. On the basis of the AG's ruling, the parties (1) agreed to stay the enforcement of the preliminary injunction until May 31, 2019 (Dkt. No. 113) and (2) filed the cross-motions which are the subject of this order. Additionally, Plaintiffs filed a Third Amended Complaint (“TAC”) incorporating challenges to the AG's decision in Matter of M-S (Dkt. No. 130), and Defendants moved to dismiss it. (Dkt. No. 136.)

         In Matter of M-S, the AG determined that aliens who are originally placed in expedited removal proceedings and then transferred to full removal proceedings after establishing a credible fear do not become eligible for bond upon transfer and that Matter of X-K, in which the BIA had ruled that such aliens were entitled to bond hearings under § 1225(b) of the Immigration and Nationality Act (“INA”), “was wrongly decided.” 27 I. & N. Dec. at 510. The AG found that aliens classified as “entering without inspection” (“EWI”) were subject to mandatory detention without bond following a successful credible fear determination and could be released only upon being paroled for “urgent humanitarian reasons or significant public benefit” under 8 U.S.C. § 1182(d)(5)(A). Id. at 516.

         Discussion

         District courts possess the discretionary authority to “modify or revoke an injunction as changed circumstances may indicate.” Lapin v. Shulton, Inc., 333 F.2d 169, 170 (9th Cir. 1964). “[S]ound judicial discretion may call for the modification of the terms of an injunctive decree if the circumstances, whether of law or fact, obtaining at the time of its issuance, have changed.” Sys. Fed. No. 91 v. Wright, 364 U.S. 642, 647 (1961).

         The Court is unquestionably facing “changed circumstances” as a result of the AG's decision in M-S. While much of the analysis underlying the issuance of the initial preliminary injunction in this matter concerned Plaintiffs' constitutional rights in the context of their situation, there is no question that analysis sprang from an understanding (as a result of the ruling in X-K) that the class members were entitled to a bond hearing under the INA.

         This order will undertake a fresh analysis of Plaintiffs' claims and their request for modified injunctive relief in light of those changed circumstances, but first must examine a series of threshold issues which the Government has raised as bars to continued injunctive relief.

         I. Threshold issues

         A. Standing and mootness

         The Government argues that the claims of the bond hearing class were premised on the ruling in X-K (i.e., that they were eligible for a bond hearing that they were not receiving in a timely manner and with the appropriate amount of due process) and thus have been “mooted” by the M-S determination that the statute does not entitle them to a bond hearing. The claims of the bond hearing class survive the ruling in M-S: nowhere in the Second (and now, the Third) Amended Complaint do Plaintiffs cite X-K as the basis for the relief they seek - their claims are premised on the fundamental unconstitutionality of the Government's claimed right to detain them indefinitely (see Dkt. No. 26 at ¶¶ 13, 151-52; Dkt. No. 130 at ¶¶ 8, 117-29) and allegations that the ruling in M-S and the policies and practices of Defendants violate the APA. (Dkt. No. 130, ¶¶ 142-146, 152-159.)

         That the named Plaintiffs (Vasquez and Orantes) are not currently being detained is also cited as grounds for challenging their standing and their ability to serve as class representatives. This is not a sound argument for two reasons: First, the INA gives Defendants the right to revoke a bond order at any time on the basis of “changed circumstances.” 8 U.S.C. § 1226(b). The Government submits a declaration from the Deputy Assistant Director of ICE's Office of Enforcement and Removal Operations (ERO) which states that “[a]t this time, ERO does not intend to re-detain aliens who, after having established credible fear, have an ICE custody release determination or an Immigration Court final bond determination pursuant to INA § 236 issued prior to July 15, 2019.” (Dkt. No. 137, Decl. of Hott at ¶ 6.) The Court is not persuaded that the conditional “at this time” language divests Plaintiffs of standing - the Government's unwillingness to ...


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