Special Blog on the District Court Decision in Padilla v. U.S. ICE by Merle Kahn, Esq.
I am writing a special blog on the District Court’s decision in Padilla v. U.S. Immigration and Customs Enforcement, No. C18-928 MJP (W.D. Wash. July 2, 2019). The Padilla Court (Padilla is an auspicious name for immigration cases) issued a nationwide preliminary injunction holding that asylum seekers who have passed a credible fear interview are not subject to mandatory detention during the pendency of asylum proceedings.
I normally dislike blogging about District Court decisions because the Courts of Appeal will almost certainly issue a different ruling on the topic. And that ruling will be dispositive for most of our cases. But I am overcoming my dislike of blogging about district court cases for two reasons. First, this ruling enjoins the implementation of the Attorney General’s decision in Matter of M-S-, 27 I.&N. Dec. 509 (A.G. 2019) scheduled to go into effect on July 15, 2019. (M-S- requires mandatory detention of all asylum seekers placed in expedited removal proceedings even after having established a credible fear of persecution). Second, I was lucky enough to be in the Court in Seattle, when Judge Marsha Pechman held the hearing. Matt Adams of the Northwest Immigrant Rights Project represented the plaintiffs in the case and gave a masterclass on giving an oral argument. I took away two important things from that hearing: (1) Judge Pechman is very concerned about family separation; and, (2) judges guard their jurisdiction very zealously. I always knew that judges guard their jurisdiction but, this maxim was put into stark relief at this hearing.
I am going to start this blog by talking about the orders in the case, and then I shall get into the weeds about the jurisdictional and injunctive issues. The judge issued two orders: Part A and Part B. She issued the ruling this way because it was clear that the Government would appeal the decision and she wanted the Ninth Circuit to be able to implement at least part of her ruling. As I mentioned, the Attorney General’s decision in Matter of M-S- is scheduled to go into effect on July 15, 2019. Interestingly, Judge Pechman set her ruling to go into effect within two weeks from the date of the order or July 16, 2019. We shall see what happens on July 15….
Part A of the Order
The District Court reaffirmed its previously entered injunction requiring the Executive Office for Immigration Review (EOIR) to do the following:
- Conduct bond hearing within seven days of a bond hearing request by a class member, and release any class member whose detention exceeds that time limit;
- Place the burden of proof on the Government to demonstrate in the bond hearings why the class member should not be released on bond, parole, or other conditions;
- Record the bond hearing and produce the recording or the verbatim transcript of the hearing upon appeal; and,
- Produce a written decision with a particularized determination of individualized findings at the conclusion of the bond hearing.
Those are all pretty awesome requirements.
Part B
If Part A is great and helps our clients, Part B is unbelievable. In Part B the District Court finds that the statutory provision in INA § 235(b)(1)(B)(ii) is unconstitutional! Here’s the [unconstitutional] statute:
“(b) Inspection of applicants for admission (1) Inspection of aliens arriving in the United States and certain other aliens who have not been admitted or paroled…
(B) Asylum interviews…(ii) Referral of certain aliens
If the officer determines at the time of the interview that an alien has a credible fear of persecution (within the meaning of clause (v)), the alien shall be detained for further consideration of the application for asylum.”
When I read Matter of M-S- I got hung up on that language. But the District Court simply found it unconstitutional. That power almost makes me want to become a district court judge. I think that finding that the statute is unconstitutional ensures a published decision by the Ninth Circuit either affirming or denying the District Court’s finding.
Some Procedural Background
On March 16, 2019, the District 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 are forced to return to their home countries. This bond class does not include asylum seekers who present themselves at the port of entry. It is only people who have already entered the United States. On April 5, 2019, the District Court issued a nationwide preliminary injunction requiring EOIR to implement Part A of her current order. The District Court originally ruled that this order was to go into effect no later than May 5, 2019. The humanity of this decision at a time of unmitigated governmental cruelty toward immigrants is breathtaking.
On April 16, 2016, Attorney General Barr issued a decision holding that all asylum seekers who either have entered the United States without inspection or are seeking admission to the United States and who have passed a credible fear interview are subject to mandatory detention during the pendency of their hearings. An asylum seeker could only be released if the government granted parole “for urgent humanitarian reasons or significant public benefit” under INA § 212(d)(5)(A). Matter of M-S-, 27 I.&N. Dec. at 516. After the Attorney General issued his decision, both sides in the Padilla litigation sought modification or annulment of the initial injunction. Plaintiffs crafted a Third Amended Complaint (TAC) in light of Matter of M-S- and on June 28, 2019, the District Court held a hearing on the case.
Legal Discussion
The District Court first discussed standing and mootness. The Court noted that Plaintiffs have standing even if the government released the named Plaintiffs from custody. First, under the Immigration and Nationality Act (INA) the Government can revoke a bond order at any time on the basis of “changed circumstances.” INA § 236(b). Second, the claims of the class members continue to be “inherently transitory” and the named Plaintiffs may represent the interests of class members whose claims may both come ripe and/or expire during the course of the litigation. Finally, because the class is certified to pursue its due process claims, the class itself acquired a legal status separate from the interest asserted by the class representatives; so, an Article III controversy now exists between a named defendant and a member of a certified class. Padilla v. U. S. ICE, No. C18-928 MJP slip op. at *5-6 (W.D. Wash. July 2, 2019).
Can A District Court Hear a Class Action Lawsuit on Immigration Issues?
One of the issues that have really hung me up about this case is the issue of a class action lawsuit. INA § 242(f) provides:
“Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.”
As I read that statute, it seems that there are no class-action lawsuits in immigration law. But the analysis is a bit more complex. Needless to say, the Government argued that the Court lacked jurisdiction over this case because it is a class-action lawsuit. But judges never seem to like having their power questioned. “The Court held that “Plaintiffs are not asking the Court to enjoin or restrain the operation of the provisions of any statute, but instead seek an injunction against actions and policies that violate those statutes.”” Padilla slip op. at *7. But that original holding depended on the BIA’s decision in Matter of X-K, 23 I.&N. Dec. 731 (BIA 2005) overruled Matter of M-S-, 27 I.&N. Dec. 509 (A.G. 2019). Since the Attorney General overruled Matter of X-K, the Court could not rely on it. The Government argued that the Court lacked jurisdiction under INA § 242(f). But in support of its argument Plaintiffs cited Califano v. Yamasaki, 422 U.S. 682 (1979).
In Califano, the Supreme Court ruled that “[w]here the district court has jurisdiction over the claim of each individual member of the class, [FRCP – Federal Rules of Civil Procedure] 23 provides a procedure by which the court may exercise that jurisdiction over the various induvial claims in a single proceeding….” Padilla, slip op. at *8 quoting Califano, 422 U.S. at 700. The Court noted that the Ninth Circuit upon the remand of the Supreme Court’s decision in Jennings v. Rodriguez found that it had jurisdiction.
“[W]e have jurisdiction under 8 U.S.C. § 1252(f)(1)…All of the individuals in the putative class are ‘individuals against whom proceedings under such part have been initiated’ and are pursuing habeas claims, albeit as a class, which nowhere appears affected by § 1252(f).”
Padilla, slip op. at *8 quoting Rodriguez v. Marin, 909 F.3d 252, 256-57 (9th Cir. 2018).
The Court found that there were more grounds for the Court’s jurisdiction over the case including the Court’s habeas jurisdiction. The Court cited Rodriguez v. Marin holding “Section 1252(f)(1) also does not bar the habeas class action because it lacks a clear statement repealing the court’s habeas jurisdiction.” 909 F.3d at 256 quoted in Padilla, slip op at *9. The Court noted that the Sixth Circuit came to the opposite conclusion. Hamama v. Adducci, 912 F.3d 869 (6th Cir. 2018). The Hamama Court found that habeas is barred for injunctive relief for class action lawsuits. (With a split between the Circuits this issue might be going up to the Supreme Court).
Does the Court Have Jurisdiction or Does Jurisdiction Only Lie in the D.C. District Court?
The Government also challenged the Court’s jurisdiction to hear a case in expedited removal proceedings. The INA provides:
“Judicial review of determinations under section [235(b)]… and its implementation is available in an action instituted in the United States District Court for the District of Columbia, but shall be limited to determinations of (i) whether such section, or any regulation issued to implement such section is constitutional.”
INA § 242(e)(3). The Government argued that the case had to be brought in D.C. District Court. But, the judge, as much as she seemed that she wanted to punt this mess over to D.C., found that she had jurisdiction. She found that § 242(e)(3) applies to challenges to the removal process itself and not to detentions attendant upon that process. She noted that the Supreme Court in Jennings found that the District Court in California properly had jurisdiction to consider challenges to the detention process for expedited removal proceedings. Padilla, slip op. at *10.
Preliminary Injunction
Once the Court found that it had jurisdiction, it considered what type of injunction was being sought, was it mandatory or prohibitory? I’ll help you out here if you like me did not quite realize that there were different types of injunctions. A mandatory injunction orders a responsible party to act. It is subject to a higher burden of proof. Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873 (9th Cir. 2019). A prohibitory injunction is an injunction that is intended to preserve the status quo. Here the Court found that the injunction was prohibitory as asylum seekers have been able to apply for bonds in immigration proceedings for the past 50 years.
The Court then went through the traditional elements for requesting injunctive relief:
- Likelihood of success on the merits;
- Irreparable harm in the absence of an injunction;
- A balance of equities which favors the moving party; and
- The existence of a public interest which favors the injunction.
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The Court found for Plaintiffs and issued its ruling.
Likelihood of Success on the Merits
To determine whether Plaintiffs can establish a likelihood of success on the merits, the Court utilizes the balancing test set forth by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319 (1976). The Mathews test looks at (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used; (3) the probable value if any, of additional or substitute procedural safeguards; and (4) the Government’s interest including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. Mathews, 424 U.S. at 335.
The Court found that immigrant detainees have a constitutionally protected interest in freedom from unnecessary incarceration. The Government argued that Plaintiffs are “excludable aliens” and entitled only to those rights that Congress sees fit to grant them. The Court shot down this argument finding that the Plaintiffs are not “excludable aliens” but rather people who the Government has apprehended within the territorial boundaries of the United States and are entitled to due process protections. Those protections the right to be free from indefinite civil detention with no opportunity to test its necessity.
Risk of deprivation/value of procedural safeguards
The Court found that the ‘risk of deprivation’ here is that individuals will be needlessly deprived of their fundamental right to liberty. The Court held that the value of the procedural safeguard of a bond hearing is self-evident. The Court then looked at the value of the procedural safeguards and noted that the purposes of immigration detention are to facilitate removal (if the noncitizen is ordered removed) and to prevent flight and harm to the community. “Detention that does not serve those legitimate ends violates due process….” Padilla, slip op. at *16. In other words, the purpose of immigration detention cannot be deterrence and it cannot be punitive.
Government’s Interest
The Government cites its commitment to the efficient administration of immigration laws at the border as their interests. But the Court found that the private interests held by the individuals being detained outweigh the Government’s interests “in proceeding in accordance with the AG’s dictates.” Padilla, slip op. at *17. Ouch!
Irreparable Harm
The Court found that “any deprivation of constitutional rights “unquestionably constitutes irreparable injury.”” Padilla, slip op. at *17 (citations omitted). Plus, the Court cites to the harms inherent in prolonged detention: “substandard physical conditions, low standards of medical care, lack of access to attorneys and evidence as Plaintiffs prepare their cases, separation from their families, and re-traumatization of a population already found to have legitimate circumstances of victimization.” Ibid.
Balance of Equities Which Favors the Moving Party/Existence of a Public Interest Which Favors the Injunction
When the Government is a party to a case the public interest and the balance of equities factors merge. Here the Court first considered the equities favoring Plaintiffs. These equities include the deprivation of their Constitutional rights; the physical/emotional/psychological damage engendered by indefinite detention; the separation from their families; and, the difficulty of being able to prepare their cases properly. The Court then considered the equities favoring the Government which include the efficient administration of the immigration laws. Guess which one won?
In conclusion, the Court found in favor of the preliminary injunction and ordered that Parts A and B are to go into effect 14 days after the date of the case. You can read the decision here.
Padilla v. U.S. Immigration and Customs Enforcement, No. C18-928 MJP (W.D. Wash July 2, 2019).