Alejandro Rodriguez, et al v. Timothy Robbins, et al

Filing

Filed Order for PUBLICATION (KIM MCLANE WARDLAW, RONALD M. GOULD and SAM E. HADDON) The parties are directed to file supplemental briefs addressing the following procedural questions: (SEE ORDER FOR FULL TEXT) The briefing schedule shall proceed as follows: Petitioners supplemental brief shall be due within thirty days of this Order. Respondents supplemental answering brief shall be due within thirty days of service of Petitioners supplemental brief. Amicus briefs may be filed with the Clerk and served upon counsel within fourteen days of filing of Respondents supplemental answering brief. Optional supplemental reply briefs may be filed by Petitioners or Respondents within thirty days of filing of Respondents supplemental answering brief. The word limits and cover colors for the briefs should correspond to the provisions of Federal Rule of Appellate Procedure 32. An amicus brief may not exceed thirty pages. The Court will schedule oral argument at the close of briefing. IT IS SO ORDERED. [10833809] [13-56706, 13-56755]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ALEJANDRO RODRIGUEZ, for himself
and on behalf of a class of similarlysituated individuals; ABDIRIZAK
ADEN FARAH, for himself and on
behalf of a class of similarly-situated
individuals; JOSE FARIAS CORNEJO;
YUSSUF ABDIKADIR; ABEL PEREZ
RUELAS,
Petitioners-Appellees/
Cross-Appellants,

Nos. 13-56706
13-56755
D.C. No.
2:07-cv-03239TJH-RNB

ORDER

and
EFREN OROZCO,
Petitioner,
v.
DAVID JENNINGS, ∗ Field Office
Director, Los Angeles District,
Immigration and Customs
Enforcement; KIRSTJEN M. NIELSEN,
Secretary, Homeland Security;
JEFFERSON B. SESSIONS III, Attorney
∗

David Jennings, Kirstjen M. Nielsen, Jefferson B. Sessions III, and
James McHenry are substituted in place of their predecessors. Fed. R.
App. P. 43(c)(2).

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RODRIGUEZ V. JENNINGS

General; WESLEY LEE, Assistant
Field Office Director, Immigration
and Customs Enforcement; RODNEY
PENNER, Captain, Mira Loma
Detention Center; SANDRA
HUTCHENS, Sheriff of Orange
County; NGUYEN, Officer, Officerin-Charge, Theo Lacy Facility;
DAVIS NIGHSWONGER, Captain,
Commander, Theo Lacy Facility;
MIKE KREUGER, Captain, Operations
Manager, James A. Musick Facility;
ARTHUR EDWARDS, Officer-inCharge, Santa Ana City Jail;
RUSSELL DAVIS, Jail Administrator,
Santa Ana City Jail; JAMES
MCHENRY, Director, Executive
Office for Immigration Review,
Respondents-Appellants.

Filed April 12, 2018
Before: Kim McLane Wardlaw and Ronald M. Gould,
Circuit Judges, and Sam E. Haddon,** District Judge.
Order

**

The Honorable Sam E. Haddon, United States District Judge for
the District of Montana, sitting by designation.

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RODRIGUEZ V. JENNINGS

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SUMMARY ***

Immigration
The panel directed the parties to file supplemental briefs
on the following procedural questions:
(1) whether this Court has jurisdiction over
petitioners’ constitutional claims despite
8 U.S.C. § 1252(f)(1), and if not, whether the
Court may nonetheless issue declaratory
relief for the Rule 23(b)(2) class;
(2) whether a Rule 23(b)(2) class action
continues to be the appropriate vehicle for
petitioners’ claims in light of Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338 (2011);
and
(3) whether a Rule 23(b)(2) class action
litigated on common facts is an appropriate
way to resolve petitioners’ claims.
The panel directed that the supplemental briefs should
also address the following constitutional questions:
(1) whether the Constitution requires that
aliens seeking admission to the United States
who are subject to mandatory detention under
8 U.S.C. § 1225(b) must be afforded bond
***

This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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RODRIGUEZ V. JENNINGS
hearings, with the possibility of release into
the United States, if detention lasts more than
six months;
(2) whether the Constitution requires that
criminal or terrorist aliens who are subject to
mandatory detention under U.S.C. § 1226(c)
must be afforded bond hearings, with the
possibility of release, if detention lasts more
than six months; and
(3) whether the Constitution requires that, in
bond hearings for aliens detained for more
than six months under §§ 1225(b), 1226(c),
or 1226(a), the alien is entitled to release
unless the government demonstrates by clear
and convincing evidence that the alien is a
flight risk or a danger to the community or
rather whether the government’s proof of
flight risk or danger could be by only a
preponderance of the evidence, whether the
length of the alien’s detention must be
weighed in favor of release, and whether new
bond
hearings
must
be
afforded
automatically every six months.
The panel also set a briefing schedule for amicus briefs.

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RODRIGUEZ V. JENNINGS

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COUNSEL
Sarah Stevens Wilson (argued), Theodore William
Atkinson, Hans Harris Chen, Alisa Beth Klein, Robert I.
Lester, Jaynie R. Lilley, Benjamin C. Mizer, Nicole Prairie,
and Erez Reuveni, United States Department of Justice,
Washington, D.C., for Respondents-Appellants/CrossAppellees.
Ahilan Thevanesan Arulanantham, Michael Kaufman, Peter
Jay Eliasberg, ACLU Foundation of Southern California,
Los Angeles, California; Judy Rabinovitz and Michael K.T.
Tan, ACLU Immigrants’ Rights Project, New York, New
York; Cecillia D. Wang, ACLU Immigrants’ Rights Project,
San Francisco, California; Jayashri Srikantiah, Stanford Law
School Mills Legal Clinic, Stanford, California; Sean Ashley
Commons and Wen Shen, Sidley Austin LLP, Los Angeles,
California; Steven Andrew Ellis, Goodwin Procter LLP, Los
Angeles, California, for Petitioners-Appellees/CrossAppellants.
Nina Rabin, University of Arizona College of Law, Tucson,
Arizona, for Amici Curiae Social Science Researchers and
Professors.
James H. Moon, James J. Farrell, Nathan M. Saper, Latham
& Watkins LLP, Los Angeles, California, for Amici Curiae
National Association of Criminal Defense Lawyers and the
Judge David L. Bazelon Center for Mental Health Law.
Sarah H. Paoletti, University of Pennsylvania Law School
Transnational Legal Clinic, Philadelphia, Pennsylvania, for
Amici Curiae International Law Professors and Human
Rights Clinicians and Clinical Programs.

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RODRIGUEZ V. JENNINGS

Holly Stafford Cooper, University of California Davis Law
School Immigration Law Clinic, Davis, California, for
Amicus Curiae University of California Davis Law School
Immigration Law Clinic.

ORDER
The parties are directed to file supplemental briefs
addressing the following procedural questions: (1) whether
this Court has jurisdiction over petitioners’ constitutional
claims despite 8 U.S.C. § 1252(f)(1), and if not, whether the
Court may nonetheless issue declaratory relief for the Rule
23(b)(2) class; (2) whether a Rule 23(b)(2) class action
continues to be the appropriate vehicle for petitioners’
claims in light of Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338 (2011); and (3) whether a Rule 23(b)(2) class action
litigated on common facts is an appropriate way to resolve
petitioners’ claims.
The supplemental briefs should also address the
following constitutional questions: (1) whether the
Constitution requires that aliens seeking admission to the
United States who are subject to mandatory detention under
8 U.S.C. § 1225(b) must be afforded bond hearings, with the
possibility of release into the United States, if detention lasts
more than six months; (2) whether the Constitution requires
that criminal or terrorist aliens who are subject to mandatory
detention under U.S.C. § 1226(c) must be afforded bond
hearings, with the possibility of release, if detention lasts
more than six months; and (3) whether the Constitution
requires that, in bond hearings for aliens detained for more
than six months under §§ 1225(b), 1226(c), or 1226(a), the
alien is entitled to release unless the government
demonstrates by clear and convincing evidence that the alien

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RODRIGUEZ V. JENNINGS

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is a flight risk or a danger to the community or rather whether
the government’s proof of flight risk or danger could be by
only a preponderance of the evidence, whether the length of
the alien’s detention must be weighed in favor of release, and
whether new bond hearings must be afforded automatically
every six months. Although we acknowledge that some
prior briefing may have touched upon these constitutional
issues, as did the supplemental briefing at the Supreme
Court, we ask the parties to address these issues anew, given
the Supreme Court decision in this appeal, and to address
any intervening changes in the legal landscape.
The briefing schedule shall proceed as follows:
•

Petitioners’ supplemental brief shall be due
within thirty days of this Order.

•

Respondents’ supplemental answering brief shall
be due within thirty days of service of
Petitioners’ supplemental brief.

•

Amicus briefs may be filed with the Clerk and
served upon counsel within fourteen days of
filing of Respondents’ supplemental answering
brief.

•

Optional supplemental reply briefs may be filed
by Petitioners or Respondents within thirty days
of filing of Respondents’ supplemental
answering brief.

The word limits and cover colors for the briefs should
correspond to the provisions of Federal Rule of Appellate
Procedure 32. An amicus brief may not exceed thirty pages.

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RODRIGUEZ V. JENNINGS

The Court will schedule oral argument at the close of
briefing.
IT IS SO ORDERED.