Martinez Banos v. Asher et al

Filing 62

ORDER DIRECTING SUPPLEMENTAL BRIEFING; plaintiffs' brief due 9/25/17; govt's response due 10/4/17; plaintiffs' reply due 10/6/17; directing clerk to renote 57 Amended MOTION to Dismiss All of Remaining Petitioners-Plaintiffs' Individual Claims, 23 MOTION for Preliminary Injunction , 41 Amended MOTION to Certify Class ; Noting Date 10/6/2017, by Hon. Brian A Tsuchida. (RS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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8 ARTURO MARTINEZ BAÑOS, et al.,
Plaintiffs-Petitioners,

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Case No. C16-1454-JLR-BAT
ORDER DIRECTING
SUPPLEMENTAL BRIEFING

v.

11 NATHALIE ASHER, et al.,
Defendants-Respondents.

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Plaintiffs propose a class defined as “All individuals who are placed in withholding only

14 proceedings under 8 C.F.R. § 1208.31(e) in the Western District of Washington who are detained
15 or subject to an order of detention.” Dkt. 38 at 22. The definition appears to be overbroad in
16 three respects.
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First, the Ninth Circuit’s recent decision in Padilla-Ramirez v. Bible forecloses plaintiffs’

18 argument all individuals in withholding only proceedings are entitled to custody hearings as soon
19 as they apply for withholding of removal. 862 F.3d 881, 884, 886 (9th Cir. 2017). Therefore, a
20 class of “all individuals” in withholding only proceedings includes people who are precluded
21 from relief under Padilla-Ramirez.
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Second, two groups of non-citizens may apply for withholding of removal under §

23 1208.31(e): those who are subject to reinstated removal orders under 8 U.S.C. § 1231(a)(5) and

ORDER DIRECTING SUPPLEMENTAL BRIEFING- 1

1 those who are subject to final administrative removal orders (“FAROs”) under 8 U.S.C. §
2 1228(b). Padilla-Ramirez held that reinstated removal orders are administratively final at the
3 time they are entered, notwithstanding the pendency of withholding only proceedings, and
4 therefore the Government’s detention authority lies in 8 U.S.C. § 1231(a). But no federal court
5 has issued a published decision regarding when a FARO is administratively final, and therefore it
6 is an open question whether those subject to FAROs and in withholding only proceedings are
7 detained under § 1231(a) or 8 U.S.C. § 1226(a). The parties’ briefing has not addressed this
8 issue and neither named plaintiff could represent a FARO sub-class. If § 1226(a) applies to such
9 individuals, they likely would be entitled to different relief than what plaintiffs now seek in light
10 of Padilla-Ramirez.
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Third, the proposed class includes individuals who are not detained but are subject to an

12 order of detention. Judge Robart has determined that merely being subject to an order of
13 detention is insufficient to have standing to pursue this lawsuit. Dkt. 53 at 10.
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Given these issues, the Court PROPOSES an amended class definition: “All individuals

15 who (1) were placed in withholding only proceedings under 8 C.F.R. § 1208.31(e) in the
16 Western District of Washington after having a removal order reinstated, and (2) have been
17 detained for 180 days (a) without a custody hearing or (b) since receiving a custody hearing.”
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The Court ORDERS the parties to respond to this sua sponte proposal and to address any

19 issues relevant to certifying such a class. Plaintiffs’ brief is due September 25, 2017, the
20 Government’s response is due October 4, 2017, and plaintiffs may file a reply by October 6,
21 2017.
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The Clerk is directed to RE-NOTE the pending motions, Dkts. 23, 41, 57, for October 6,

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DATED this 8th day of September, 2017.

A
BRIAN A. TSUCHIDA
United States Magistrate Judge

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