Cancino Castellar et al v. Kelly et al
Filing
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ORDER Granting in Part and Denying in Part 50 Motion for Reconsideration. Plaintiffs are GRANTED LEAVE TO AMEND to assert a challenge to the conditions of confinement at detention facilities in the District. Plaintiffs may file an amended complain t no later than 10/1/2018. If they do not file one, Defendants may answer or move to dismiss the Fifth Amendment claim for failure to state a claim pursuant to Rule 12(b)(6) no later than 10/15/2018. Signed by Judge Cynthia Bashant on 9/6/2018. (acc)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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JOSE ORLANDO CANCINOCASTELLAR, et al.,
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v.
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Case No. 17-cv-0491-BAS-BGS
ORDER GRANTING IN PART
AND DENYING IN PART
MOTION FOR
RECONSIDERATION
Plaintiff-Petitioners,
KIRSTJEN NIELSEN, Secretary,
U.S. Department of Homeland
Security, et al.,
[ECF No. 50]
Defendant-Respondents.
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Before the Court is a motion for reconsideration of the Court’s February 8,
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2018 order (the “Order”) dismissing the Complaint for lack of jurisdiction, filed by
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Plaintiff-Petitioners Jose Orlando Cancino-Castellar, Ana Maria Hernandez Aguas,
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and Michael Gonzalez, (collectively, “Plaintiffs”). (ECF No. 50.) Defendants1
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Defendants are: Kirstjen Nielsen, Secretary of the U.S. Department of
Homeland Security (“DHS”); Thomas Homan, Acting Director of U.S. Immigration
and Customs Enforcement (“ICE”); Kevin K. McAleenan, Acting Commissioner of
U.S. Customs and Border Protection (“CBP”); Gregory Archambeault, Field Office
Director for the San Diego Field Office of ICE; Jefferson B. Sessions III, Attorney
General of the United States; and Juan P. Osuna, Director of the Executive Office for
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oppose the motion (ECF No. 53) and Plaintiffs have replied (ECF No. 55). For the
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reasons herein, the Court grants in part and denies in part Plaintiffs’ motion.
RELEVANT BACKGROUND2
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Plaintiffs filed the putative class action complaint and habeas petition (the
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“Complaint”), alleging that Defendants have a “policy and practice of detaining
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individuals for extended periods without promptly presenting them for an initial
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hearing before an immigration judge or promptly seeking judicial review of probable
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cause for detention.” (Compl. ¶¶ 1, 4–6.) Each Plaintiff was taken into custody by
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various immigration enforcement agencies and detained pursuant to Defendants’
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alleged policy. (Id. ¶¶ 47–49.) Plaintiffs alleged that “many individuals” who have
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claims to relief from removal “routinely languish in detention for two months or
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longer before they see a judge” because of Defendants’ alleged policy. (Id. ¶ 1.)
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The Complaint challenged Defendants’ conduct as violating (1) detained
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individuals’ Fifth Amendment procedural and substantive due process rights by
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causing detention without prompt presentment, (2) their Fourth Amendment rights to
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a prompt judicial determination of whether probable cause justifies their detention,
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and (3) the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 706(1), 706(2)(A)–
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(D). (Id. ¶¶ 38–44, 75–80 (Fifth Amendment); id. ¶¶ 81–84 (Fourth Amendment);
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id. ¶¶ 85–90 (APA).) Plaintiffs requested declaratory relief, an injunction, and the
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issuance of a writ of habeas “commanding the release of Plaintiff-Petitioners and
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class members from detention to the extent necessary for Defendants-Respondents to
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comply” with Plaintiffs’ view of the law. (Id. at 23.) Defendants moved to dismiss
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for lack of jurisdiction pursuant to Rule 12(b)(1) and for failure to state a claim
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pursuant to Rule 12(b)(6). (ECF No. 28.)
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Immigration Review (“EOIR”). (ECF No. 1.)
The Court’s Order discusses in detail the factual allegations and history of
this case. (ECF No. 49 at 3–11.) The Court does not recount that background here.
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On February 8, 2018, the Court granted Defendants’ motion to dismiss for lack
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of jurisdiction. (ECF No. 49.) The Court determined that it lacks jurisdiction over
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Gonzalez’s Fourth Amendment probable cause claim pursuant to 8 U.S.C. § 1252(g)
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because he was initially placed into mandatory detention as a result of expedited
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removal proceedings. (Id. at 15.) The Court further determined that 8 U.S.C. §§
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1252(a)(5) and 1252(b)(9) deprive it of jurisdiction over Cancino’s and Hernandez’s
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Fourth Amendment claims and all Plaintiffs’ Fifth Amendment claims because those
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claims arise from removal proceedings. (Id. at 22–27.) The Court concluded that the
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statutory provisions require the Plaintiffs to raise these claims in in a petition for
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review (“PFR”). (Id.) Lastly, the Court determined that Plaintiffs’ request for habeas
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relief did not prevent the channeling of their claims. (Id. at 33–41.) The Court
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dismissed the Complaint, but granted Plaintiffs leave to amend “to assert claims over
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which th[e] Court may properly exercise jurisdiction.” (Id. at 42.)
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On February 27, 2018, the Supreme Court decided Jennings v. Rodriguez, 138
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S. Ct. 830 (2018). Because the decision provides new analysis on Section 1252(b)(9),
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Plaintiffs moved for reconsideration of the Order’s Section 1252(b)(9) conclusions.
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(ECF No. 50.) Plaintiffs’ deadline to file an amended complaint is vacated pending
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resolution of the motion. (ECF No. 51.)
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LEGAL STANDARD
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“Reconsideration is appropriate if the district court (1) is presented with newly
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discovered evidence, (2) committed clear error or the initial decision was manifestly
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unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. IJ,
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Multnomah Cty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). A motion to
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reconsider must (1) show some valid reason why the court should reconsider its prior
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decision, and (2) set forth facts or law of a strongly convincing nature to persuade
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the court to reverse its prior decision. Frasure v. United States, 256 F. Supp. 2d 1180
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(D. Nev. 2003) (citing All Hawaii Tours Corp. v. Polynesian Cultural Ctr., 116
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F.R.D. 645, 648-49 (D. Haw. 1987), rev’d on other grounds, 855 F.2d 860 (1988)).
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DISCUSSION
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A.
The Scope and Application of Section 1252(b)(9)
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The parties dispute whether Jennings supports the Court’s conclusion that it
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lacks jurisdiction over the claims asserted in the Complaint pursuant to 8 U.S.C. §
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1252(b)(9). (ECF Nos. 50, 53, 55.) To resolve this dispute, the Court first considers
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(1) the statutory text and its pre-Jennings interpretation, (2) the Supreme Court’s
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analysis in Jennings, and (3) Jennings’ departures from prior Ninth Circuit precedent.
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1.
Statutory Text and Pre-Jennings Interpretation
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As the Court has observed, Section 1252(a)(5) is central to Section
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1252(b)(9)’s scope. The former establishes that “a petition for review filed with the
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appropriate court of appeals . . . shall be the sole and exclusive means for review of
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an order of removal entered or issued under any provision of this chapter[.]” 8 U.S.C.
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§ 1252(a)(5). Section 1252(b)(9) in turn provides that “[j]udicial review of all
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questions of law and fact, including interpretation and application of constitutional
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and statutory provisions, arising from any action taken or proceeding brought to
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remove an alien from the United States under this subchapter [including §§ 1225 and
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1226] shall be available only in judicial review of a final order[.]” 8 U.S.C. §
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1252(b)(9). Thus, Section 1252(b)(9) consolidates judicial review into a PFR of a
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final order. The provisions also expressly preclude habeas jurisdiction as a means of
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review, outside of a PFR, of a final order of removal. 8 U.S.C. §§ 1252(a)(5), (b)(9).
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Prior to Jennings, the Supreme Court discussed Section 1252(b)(9) twice. In
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its first pass, the Court characterized Section 1252(b)(9) as an “unmistakable zipper
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clause,” which consolidates judicial review of “all decisions and actions” in the
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removal process. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483
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(1999) [hereinafter “AAADC”]. In its second pass, the Court reaffirmed that the
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provision’s “purpose is to consolidate ‘judicial review’ of immigration proceedings
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into one action in the court of appeals.” INS v. St. Cyr, 533 U.S. 289, 313 (2001).
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But, based on its text at the time, the Court also determined that Section 1252(b)(9)
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“by its own terms, d[id] not bar habeas jurisdiction over removal orders not subject
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to judicial review under § 1252(a)(1)” and emphasized that the term “judicial review
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. . . is a term historically distinct from habeas.” Id. at 313. The 2005 REAL ID Act
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superseded St. Cyr’s interpretation to address “anomalies created by St. Cyr,” H.R.
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Rep. No. 109–72, at 174, by “clarify[ing] that federal courts lack habeas jurisdiction
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over orders of removal” while leaving intact the “operative jurisdiction-channeling
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language[.]” J.E.F.M. v. Lynch, 837 F.3d 1026, 1031, 1034 n.6 (9th Cir. 2016).
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The Ninth Circuit’s pre-Jennings precedent reflects three points. First, pre-
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Jennings Ninth Circuit precedent indicated that Sections 1252(a)(5) and 1252(b)(9)
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are “not jurisdiction-stripping statutes that, by their terms, foreclose all judicial
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review,” but rather “bypass the district court” and “channel judicial review over final
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orders of removal to the courts of appeals” in a petition for review (“PFR”). J.E.F.M.,
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837 F.3d at 1031, 1033; see also Martinez v. Napolitano, 704 F.3d 620, 622 (9th Cir.
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2012) (the provisions “limit all aliens to one bite of the apple with regard to
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challenging an order of removal.” (quoting Singh v. Gonzales, 499 F.3d 969, 976 (9th
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Cir. 2007)).
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Second, pre-Jennings Ninth Circuit precedent noted that the provisions have
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“built-in limits” “[b]y channeling only those questions ‘arising from any action taken
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or proceeding brought to remove an alien[.]’” J.E.F.M., 837 F.3d at 1032. “[C]laims
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that are independent of or collateral to the removal process” are not channeled. Id.
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Pre-Jennings, the Ninth Circuit provided examples of when claims do and do not
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“arise from” removal proceedings or an action taken to remove an alien. Contrast
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Singh, 499 F.3d at 979 (permitting ineffective-assistance-of-counsel claim for
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conduct occurring after final order of removal to be raised in a habeas petition in
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district court, but barring similar claim for conduct that arose before final order of
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removal) and Nadarajah v. Gonzales, 443 F.3d 1069, 1075–76 (9th Cir. 2006)
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(permitting habeas claim in district court raised by an alien plaintiff who “prevailed
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at every administrative level” and was granted asylum, yet remained in
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administrative detention for five years) with J.E.F.M., 837 F.3d at 1034 (no district
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court jurisdiction over due process right-to-counsel claims raised by immigrant
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minors in removal proceedings prior to the issuance of a final order of removal) and
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Martinez, 704 F.3d at 623 (district court lacked jurisdiction over APA challenge to
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BIA’s denial of removal relief because alien “had his day in court and an opportunity
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to argue ‘all questions of law and fact’ arising from his removal proceedings”).
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Finally, pre-Jennings Ninth Circuit precedent broadly held that, “Sections
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1252(a)(5) and 1252(b)(9) mean that any issue . . . arising from any removal-related
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activity can be reviewed only through the PFR process.” J.E.F.M., 837 F.3d at at
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1031 (emphasis in original); id. at 1034 (Section 1252(b)(9) “make[s] perfectly clear
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. . . that ‘review of a final order of removal is the only mechanism for reviewing any
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issue raised in a removal proceeding’[]” (quoting H.R. Rep. No. 109–72, at 173)).
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The Ninth Circuit expressly rejected the notion that an asserted lack of “meaningful
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review” of a claim in the PFR process could “circumvent an unambiguous statute.”
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J.E.F.M., 837 F.3d at at 1036.3
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2.
Jennings v. Rodriguez’s Jurisdictional Analysis
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In Jennings, the plaintiff aliens sought injunctive and declaratory relief and
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habeas on behalf of themselves and a class. Jennings, 138 S. Ct. at 838. They
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challenged the government’s authority to detain non-citizens for longer than six
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months pending completion of removal proceedings pursuant to the general
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The Ninth Circuit viewed the argument as inapposite because “it stem[med]
from dicta in McNary [v. Haitian Refugee Center],” which was “a statutory
interpretation case involving a completely different statute.” J.E.F.M., 837 F.3d at
1035–36. In McNary, the Supreme Court determined that the judicial review
provisions of the Immigration Reform and Control Act (“IRCA”) concerning the
Seasonal Agricultural Workers (“SAW”) program did not bar jurisdiction over SAWrelated pattern and practice claims. McNary, 498 U.S. 479, 483–84, 491–94 (1991).
The Supreme Court observed that “if not allowed to pursue their claims in the District
Court, respondents would not as a practical matter be able to obtain meaningful
judicial review” of their claims. Id. at 496.
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immigration detention statutes. Id. at 839 (“In their complaint, Rodriguez and the
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other respondents argued that the relevant statutory provisions—[8 U.S.C.] §§
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1225(b), 1226(a), and 1226(c)—do not authorize ‘prolonged’ detention in the absence
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of an individualized bond hearing[.]”). The district court had certified a class and
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issued an injunction, which the Ninth Circuit affirmed by interpreting the detention
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statutes as requiring a bond hearing every six months pursuant to the canon of
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constitutional avoidance. See Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015).
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Before reversing the Ninth Circuit’s interpretation of the detention statutes, the
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Supreme Court addressed Section 1252(b)(9) as a “potential obstacle[]” to
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jurisdiction.
With only eight justices, the Court was fragmented in its views.
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Jennings, 138 S. Ct. at 839–841 (Alito, J., joined by Roberts, C.J. and Kennedy, J.)
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(jurisdiction); id. at 853–859 (Thomas, J., concurring, joined by Gorsuch, J.) (no
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jurisdiction); id. at 876 (Breyer, J., dissenting, joined by Ginsburg, J. and Sotomayor,
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J.) (jurisdiction).
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Justice Thomas took the broadest view of Section 1252(b)(9). He first observed
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that, “[i]f an alien raises a claim arising from such an action or proceeding, courts
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cannot review it unless they are reviewing a ‘final order’ under § 1252(a)(1) or
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exercising jurisdiction otherwise provided in § 1252,” a limitation that habeas could
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not avoid. Id. at 853–54. Justice Thomas concluded that Section 1252(b)(9) barred
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jurisdiction because “claims challenging detention during removal proceedings . . .
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fall within the heartland of § 1252(b)(9).” Id. at 854. In contrast, Justice Breyer
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determined that Section 1252(b)(9) “by its terms applies only ‘[w]ith respect to review
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of an order removal under [§ 1252(a)(1)],” but “[r]espondents challenge their
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detention without bail, not an order of removal.” Id. at 876.4
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Plaintiffs suggest that the Court could adopt Justice Breyer’s view. As Justice
Thomas observed, however, “the prefatory clause and § 1252(b)(9) mean that review
of all questions arising from removal must occur in connection with review of a final
removal order under § 1252(a)(1), which makes sense given that § 1252(b)(9) is
meant to ‘[c]onsolidat[e] . . . questions for judicial review.’” Jennings, 138 S. Ct. at
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Justice Alito took a middle approach—he did not find jurisdiction simply
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because there was no final order of removal, nor did he conclude there was no
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jurisdiction simply because the plaintiffs were in removal-related detention. He first
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asked what legal question the Court had to decide, which he identified as “whether . .
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. certain statutory provisions require detention without a bond hearing.” Id. at 840.
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“[A]ssum[ing] . . . that the actions taken with respect to all aliens in the certified class
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constitute ‘action[s] taken . . . to remove [them],” Justice Alito inquired whether the
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legal question arose from these actions. Id.
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In concluding that the legal question did not arise from the acts covered by
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Section 1252(b)(9), Justice Alito first rejected an “expansive” interpretation of
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“arising from” that would bar jurisdiction simply because the aliens would not be in
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custody at all if actions to remove them had never been taken. Id. at 840. Providing
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as examples a Bivens challenge to inhumane confinement conditions, a state claim
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against a guard or fellow detainee for assault, and a tort suit, Justice Alito opined that
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“cramming judicial review of those questions into the review of final removal orders
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would be absurd.”
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interpreting “arising from” because it “would also make claims of prolonged
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detention effectively unreviewable.” Id. He explained that a detainee would have no
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“meaningful chance for judicial review” because a final order might never enter and
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even if one “eventually” did, the allegedly excessive detention would have already
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occurred. Id. Third, Justice Alito cautioned that “when confronted with capacious
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phrases like arising from, we have eschewed uncritical literalism leading to results
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that no sensible person could have intended.” Id. (quoting Gobeille v. Liberty Mut.
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Ins. Co., 136 S. Ct. 936, 943 (2016) (international quotations omitted)).
Id.
Second, Justice Alito rejected this “extreme way” of
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Not “attempt[ing] to provide a comprehensive interpretation,” Justice Alito
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concluded it was jurisdictionally “enough” that “respondents are not asking for review
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856.
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of an order of removal; they are not challenging the decision to detain them in the first
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place or to seek removal; and they are not challenging any part of the process by
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which their removability will be determined.” Id. at 841. He expressly rejected Justice
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Thomas’s view that Section 1252(b)(9) bars jurisdiction over removal-related
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detention. Justice Alito reasoned that “[t]he question is not whether detention is an
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action taken to remove an alien but whether the legal questions in this case arise from
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such an action,” questions which Justice Alito deemed “too remote from the actions
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taken to fall within the scope of §1252(b)(9).” Id. at 841 n.3 (emphasis in original).
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3.
Jennings’ Relevant Departures from Ninth Circuit Precedent
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Justice Alito’s view of Section 1252(b)(9) departs from two aspects of pre-
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Jennings Ninth Circuit precedent on which the Court relied when it dismissed the
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Complaint for lack of jurisdiction. First, the Court expressly relied on prior Ninth
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Circuit precedent which contemplated a broad scope for Section 1252(b)(9). The
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Ninth Circuit expressly characterized Section 1252(b)(9) as “‘breathtaking’ in scope
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and ‘vise-like’ in grip,” which “swallows up virtually all claims that are tied to
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removal proceedings.” J.E.F.M., 837 F.3d at 1031 (quoting Aguilar v. ICE, 510 F.3d
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1, 9 (1st Cir. 2007)). This precedent may treat Section 1252(b)(9) too broadly in light
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of the Jennings plurality’s rejection of an “expansive” interpretation of “arising from”
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that would sweep a claim into Section 1252(b)(9) simply because an alien is in
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removal proceedings or a removal action was taken. Pre-Jennings Ninth Circuit
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precedent also instructed that claims “independent of or collateral to the removal
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process do not fall within the scope of Section 1252(b)(9),” but unlike Jennings, it did
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not identify what such claims would be for aliens with pending removal proceedings.
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Contrast Jennings, 138 S. Ct. at 840 with J.E.F.M., 837 F.3d at 1032.5 Justice Alito’s
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J.E.F.M. relied on First Circuit precedent which expressly identified
detention challenges and infringement of the right to family integrity as claims that
would not fall within Section 1252(b)(9). See Aguilar, 510 F.3d 1, 11–12, 19 (1st
Cir. 2007). J.E.F.M., however, did not expressly adopt these examples.
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identification of aspects of the immigration removal process over which a court
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ostensibly lacks jurisdiction and claims that fall outside Section 1252(b)(9)’s scope
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provides important guidance on the statute’s scope.
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Second, the Court relied on pre-Jennings Ninth Circuit precedent which
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rejected the argument that Section 1252(b)(9) could not bar district court jurisdiction
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over a claim that cannot be meaningfully reviewed in the PFR process. (ECF No. 49
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at 30–31); see J.E.F.M., 837 F.3d at 1035–38. Justice Alito’s analysis counsels that
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courts should consider whether an “extreme” interpretation of “arising from” in
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Section 1252(b)(9) would make a claim “effectively unreviewable.” Jennings, 138
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S. Ct. at 840. Justice Alito expressly identified “claims of prolonged detention” as
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effectively unreviewable, but his analysis did not end there. Rather, he explained
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further that the Jennings plaintiffs did not otherwise challenge the initial decision to
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detain or remove them or the removal process. Id. at 840–841. This elaboration
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provides context which shows that there is no freestanding exception to Section
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1252(b)(9) based on whether claims are effectively unreviewable, as Plaintiffs appear
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to suggest.
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unreviewable is a much easier question to answer than whether they are ‘inextricably
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linked’ with removal proceedings.”).) Rather, a court must ask whether the claims
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otherwise challenge issues that are cognizable in the PFR process. With these points
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in mind, the Court reconsiders whether it has jurisdiction.
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B.
(ECF No. 50-1 at 3 (“The issue whether claims are effectively
Jurisdiction Over the Complaint Post-Jennings
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Plaintiffs characterize Jennings as concerning “prolonged detention without
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certain procedural safeguards.” (ECF No. 50-1 at 1.) Based on this characterization,
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they contend that their claims are “indistinguishable” from those in Jennings “for
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jurisdictional purposes” and thus Jennings “controls” jurisdiction. (ECF No. 50-1 at
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1, 7–14; ECF No. 55 at 2–6.) Plaintiffs’ characterization of Jennings, however,
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extends it beyond its narrower legal question and elides the case-specific inquiry
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reflected in Justice Alito’s analysis of whether Section 1252(b)(9) bars jurisdiction.
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Pursuant to that inquiry, a court should first identify what legal (or factual) question
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the plaintiff raises and then determine whether that question “arises from” an action
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taken to remove an alien or removal proceedings. Jennings, 138 S. Ct. at 840. With
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the benefit of Justice Alito’s analysis, the Court considers whether Section
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1252(b)(9) bars jurisdiction over the particular legal questions raised by Plaintiffs’
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Fourth and Fifth Amendment claims.
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1.
Fourth Amendment Probable Cause Claim
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Plaintiffs’ Fourth Amendment claim raises the legal question of whether the
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Amendment “permit[s] the government to detain individuals without prompt judicial
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determination of whether probable cause justifies their detention.” (Comp. ¶ 82.)
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Plaintiffs refine this question to be whether such a probable cause determination must
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occur within 48 hours of an individual being taken into immigration custody by an
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immigration officer. (Id. ¶ 46.) As Defendants recognize (ECF No. 53 at 3), the
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legal question raised by Plaintiffs’ Fourth Amendment claim arises from aspects of
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the removal process over which Justice Alito indicated Section 1252(b)(9) would bar
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jurisdiction.
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For one, the claim plainly “challeng[es] the decision to detain them in the first
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place[.]” Jennings, 138 S. Ct. at 841. The claim expressly challenges “decisions to
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keep persons in custody beyond 48 hours and before their initial Master Calendar
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Hearing [that] are made by DHS officers alone without prompt judicial review.”
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(Compl. ¶ 46 (emphasis added); id. ¶¶ 4, 22.) The question of whether the Fourth
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Amendment requires “judicial review” of that decision within 48 hours is far from a
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claim of prolonged detention “remote” from the initial decision to detain. Second,
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and relatedly, the claim “challeng[es] the decision . . . to seek removal” in the first
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place. Jennings, 138 S. Ct. at 841. The “probable cause” procedure Plaintiffs seek
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is one in which an immigration officer’s determination that an individual is
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removable from the United States is “promptly reviewable.” Plaintiffs recognize that
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“[n]ot all persons facing removal proceedings are detained” and “the government
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routinely pursues removal . . . against non-detained individuals[.]” (ECF No. 50-1 at
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9; ECF No. 55 at 5.) These points, however, mean little in Plaintiffs’ circumstances.
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The Complaint recognizes that individuals like the Plaintiffs are taken into ICE
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custody because immigration officers suspect them of being aliens removable from
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the United States.6 Even though custody and removability are distinct, Plaintiffs’
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“probable cause” claim concededly does not involve the former. Plaintiffs aver that
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none of the purely custodial questions in a bond hearing, such as whether an alien is
8
a flight risk or a danger to the community, is “at issue here.”7 (ECF No. 50-1 at 17.)
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It is clear to the Court that this claim concerns the mere fact that an immigration
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officer has taken any action at all against the Plaintiffs and the putative class.
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For this reason, the Court must reject Plaintiffs’ contention that the Court may
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exercise jurisdiction over their Fourth Amendment claim on the ground that it is
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effectively unreviewable because it also involves detention. The detention-framing
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of the Complaint makes addressing the impact of Section 1252(b)(9) on Plaintiffs’
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Fourth Amendment claim challenging. But, as the Court has explained, Justice
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Alito’s analysis should not be read to fashion a free-standing exception to Section
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1252(b)(9) based on the mere assertion that a claim is effectively unreviewable or
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challenges “prolonged detention.” As Justice Alito himself confirmed, a court must
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decide whether the legal or factual question a plaintiff raises arises from an action
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Plaintiffs do not allege a policy in which individuals are detained without
probable cause to believe they are aliens removable from the United States, nor do
they seek relief premised on whether an individual is in fact not an alien. The Court
does not address whether Section 1252(b)(9) would apply in those circumstances.
Plaintiffs’ Fourth Amendment claim is fundamentally different from the bond
hearing claim at issue in Jennings in this regard. The Jennings plaintiffs expressly
sought access to bond hearings to justify their continued detention. Jennings, 138 S.
Ct. at 838, 839. The plaintiffs in Jennings did not claim that the government lacked
probable cause to detain them in the first place or that the Constitution requires a
procedure for determining probable cause to detain with days of an initial
apprehension and detention.
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taken to remove or the removal process. Jennings, 138 S. Ct. at 840. At its core,
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Plaintiffs’ Fourth Amendment probable cause claim does so.
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Finally, Plaintiffs cannot tenably argue that the Court may grant a remedy for
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this claim “without impeding removal proceedings.” (ECF No. 50-1 at 1.) Unlike
5
the Jennings plaintiffs, Plaintiffs’ Fourth Amendment claim does not seek a
6
“procedural safeguard” to justify continued detention pending removal proceedings.
7
Instead, Plaintiffs seek a “procedural safeguard” by which a detained individual’s
8
removability from the United States is immediately reviewable by an IJ. Although
9
the Court is not insensitive to the notion that the absence of such a procedure
10
unreasonably “extends” detention for individuals detained after being taken into
11
immigration custody, the relief Plaintiffs request is the premise of removal
12
proceedings—assessing whether an individual is removable from the United States
13
and the government’s evidence on that issue. See Delgado v. Quarantillo, 643 F.3d
14
52, 55 (2d Cir. 2011) (“[W]hether the district court has jurisdiction will turn on the
15
substance of the relief that a plaintiff is seeking.”). This issue is clearly cognizable
16
in the PFR process. Accordingly, the Court affirms that it lacks jurisdiction over
17
Plaintiffs’ Fourth Amendment probable cause claim pursuant to Section 1252(b)(9).
18
2.
Fifth Amendment Prompt Presentment Claim
19
Plaintiffs’ Fifth Amendment claim raises the legal question of whether the
20
Fifth Amendment’s Due Process Clause “permit[s] the government to detain
21
Plaintiff-Petitioners or other members of the class without promptly presenting them
22
before a judge.” (Compl. ¶ 77.) The claim is premised on the notion that procedural
23
and substantive due process require “prompt presentment” to justify the deprivation
24
of physical liberty that detention represents. (Id. ¶¶ 35–39, 41–43.) Based on Justice
25
Alito’s analysis in Jennings, the Court concludes that Section 1252(b)(9) does not
26
bar jurisdiction over Plaintiffs’ Fifth Amendment claim.
27
At the heart of Plaintiffs’ Fifth Amendment claim is the notion that
28
unreasonable delays in the presentment of detained aliens seeing an immigration
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1
judge (“IJ”) unconstitutionally extends their detention. (Compl. ¶¶ 40, 44.)8 As the
2
Court observed in its Order (ECF No. 49 at 5–6, 23–25), the Complaint identifies the
3
initial Master Calendar Hearing (“MCH”) as the first appearance before an IJ and a
4
“crucial stage” of removal proceedings. (Compl. ¶¶ 1, 3, 24–34, 44.) The MCH
5
permits an alien to, inter alia, learn the charges against him, assess the sufficiency of
6
a Notice to Appear, request a bond hearing, and learn of possible relief from
7
removability. (Id. ¶¶ 29–32.) The Court previously understood a claim premised on
8
delays in presentment to an IJ, particularly at the MCH, as swept up by Section
9
1252(b)(9). (ECF No. 49 at 24–25, 28.) Justice Alito’s analysis in Jennings alters
10
the Court’s conclusion by circumscribing Section 1252(b)(9)’s scope. It is clear to
11
the Court that by challenging Defendants’ alleged unreasonable delays in presenting
12
detained aliens to an IJ, Plaintiffs’ Fifth Amendment claim does not “ask[] for review
13
of an order of removal,” or “challeng[e] the decision to detain them in the first place
14
or to seek removal.” Jennings, 138 S. Ct. at 841. Similarly, they do not “challeng[e]
15
any part of the process by which their removability will be determined,” id., but rather
16
the separate conduct of immigration authorities delaying that process and,
17
consequently, the Plaintiffs’ detention.
18
In their motion, Plaintiffs also aver that first presentment need not be an initial
19
MCH. The Complaint expressly alleges that Defendants “confine[] individuals for
20
removal proceedings without . . . [an] automatic custody review hearing before an
21
immigration judge,” “commonly called a bond hearing.” (Compl. ¶¶ 6, 63.) When
22
Plaintiffs’ Fifth Amendment claim is reconsidered in light of this allegation, the claim
23
is more analogous to the bond hearing claim at issue in Jennings, with the key
24
25
26
27
28
In particular, the Complaint alleges that “DHS fails to provide the time, place,
and date of the initial [MCH] in the [NTA]” and instead “relies on EOIR to schedule
the hearing,” which in turn “does not schedule more expeditious initial Master
Calendar Hearings for detainees” and “frequently sets the initial Master Calendar
Hearing for detained immigration cases in the Southern District of California for one
to three months after receiving the Notice to Appear.” (Compl. ¶¶ 28, 64–67.)
8
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1
difference being whether a bond hearing should be “automatic” or more promptly
2
held than it is currently alleged to be.
3
As in Jennings, treating Plaintiffs’ Fifth Amendment claim regarding alleged
4
prolonged detention resulting from delays in presentment as “arising from” an action
5
taken to remove an alien would make Plaintiffs’ claim “effectively unreviewable.”
6
Jennings, 138. S. Ct. at 840. Allegedly excessive detention caused by delays in
7
presentment cannot be remedied in a PFR because “by the time a final order was
8
eventually entered, the allegedly excessive detention would have already taken
9
place.” Id. at 840. And like the plaintiffs in Jennings, the Court’s analysis shows
10
that Plaintiffs do not challenge aspects of the removal process over which Justice
11
Alito indicated Section 1252(b)(9) would bar jurisdiction. Accordingly, the Court
12
concludes that reconsideration of its dismissal of Plaintiffs’ Fifth Amendment claim
13
is warranted, grants Plaintiffs’ motion as to that claim, and reinstates the claim.
14
CONCLUSION & ORDER
15
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN
16
PART Plaintiffs’ motion for reconsideration. (ECF No. 50.) The Court AFFIRMS
17
that it lacks jurisdiction over Plaintiffs’ Fourth Amendment claim. However, Section
18
1252(b)(9) does not bar jurisdiction over the Plaintiffs’ Fifth Amendment claim and
19
the Court REINSTATES the Complaint as to that claim and Plaintiffs’ APA claim,
20
to the extent it is based on the same alleged failure to “promptly present.”
21
Consistent with the Court’s prior Order, Plaintiffs are nevertheless
22
GRANTED LEAVE TO AMEND to assert a challenge to the conditions of
23
confinement at detention facilities in the District. Plaintiffs may file an amended
24
complaint no later than October 1, 2018. If they do not file one, Defendants may
25
answer or move to dismiss the Fifth Amendment claim for failure to state a claim
26
pursuant to Rule 12(b)(6) no later than October 15, 2018.
27
28
IT IS SO ORDERED.
DATED: September 6, 2018
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