It’s been a quiet week at the BIA and in the Ninth Circuit. No decisions came down from the Attorney General (thank goodness) or the BIA. The Ninth Circuit issued an Order directing the parties to file supplemental briefs addressing issues raised by the Supreme Court in its decision Jennings v. Rodriguez, 583 U.S. __, 138 S.Ct. 830 (2018). (The Supreme Court case about the constitutionality of mandatory detention in immigration proceedings). I am going to go in to what the Order says. As I’ve said before, now might be a good time to donate to the ACLU and to thank our very own Holly Cooper (UC Davis Legal Clinic) – both the ACLU and the UC Davis legal clinic, among others, are attorneys of record.
The Ninth Circuit Asked the Parties to Brief Issues About the Propriety of a Class Action Lawsuit for Mandatory Detention Cases and About the Constitutionality of the Mandatory Detention Statutes
The Ninth Circuit directed the parties in Jennings v. Rodriguez to file supplemental briefs answering the questions posed by the Supreme Court. The basic questions are: 1) Are the plaintiffs a proper class? 2) Can there even be class action lawsuits in immigration cases? And, 3) Are the mandatory detention statutes constitutional?
Is a class action lawsuit the proper vehicle for this case and are class action lawsuits statutorily permissible in immigration cases?
The first two issues that the Ninth Circuit wants to look at is whether a class action lawsuit is the appropriate vehicle for this case and are class action lawsuits even allowed under the INA? The first thing we need to do is to go back to law school (or to a bar review course) for a refresher on class action lawsuits. The traditional four requirements for a class action lawsuit are 1) numerosity (joinder of all members is impractical – remember “joinder” is adding all the plaintiffs to a single lawsuit); 2) commonality (questions of law or fact common to the class); 3) typicality (claims or defenses of the representative parties are typical of the claims of the classes); and, 4) adequacy of representation (will the attorneys fairly and adequately represent and protect the interests of the class). The class must meet all four prongs of this test. The Supreme Court in Jennings v. Rodriguez instructed the lower courts to look at whether there is commonality of claims. It appears that they were satisfied that the proposed class met the other prongs of this test. The Supreme Court asked whether there were common claims between the plaintiffs in the class. By way of instruction, the Supreme Court cited to Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). In Wal-Mart Stores, the female employees sued Wal-Mart for gender discrimination. The Supreme Court unanimously held (in an otherwise split decision) that there was no commonality. There was no proof that the defendants engaged in a pattern or practice of discrimination. They said without some “glue” holding together the alleged reasons for the employment decisions, it would be impossible to say that an examination of the class members’ claims would produce a common answer to the crucial discrimination question. The question is whether the plaintiffs in Jennings have common issues.
The second issue, that might be even more important, is does the Ninth Circuit even have jurisdiction over a class action lawsuit? The INA provides that no court, other than the Supreme Court has jurisdiction over injunctive relief with respect to individuals who are in removal proceedings. INA § 242(f)(1). Of course, the unstated question is how is this statute possibly constitutional? If no court has jurisdiction over injunctive relief in immigration proceedings other than the Supreme Court, how do you even get a case to the Supreme Court? Is it constitutional to eliminate class-action relief in immigration cases?
Is the Mandatory Detention Statute Constitutional?
The second area of concern for the Ninth Circuit is, are the mandatory detention statutes even constitutional and under what circumstances are these statutes constitutional? The Ninth Circuit asked the parties to address whether the parties in each subclass were entitled to any relief from prolonged detention. (The subclasses are noncitizens seeking admission to the U.S.; noncitizens who have criminal convictions or are suspected terrorists). It also asked the parties to address whether the burden of proof in detention proceedings shifts to the government after 180 days and what that burden is. The burden issue also includes noncitizens who are statutorily eligible for a bond under INA § 236(a). More specifically, the Ninth Circuit asked the following questions:
- Does the Constitution require applicants for admission to the United States who are subject to mandatory detention under INA § 235(b) be afforded bond hearings, with the possibility of release into the United States, if detention lasts more than six months?
- Does the Constitution require that criminal or terrorist noncitizens who are subject to mandatory detention under INA § 236(c) be afforded bond hearings, with the possibility of release, if detention lasts more than six months? (Remember that while this phrasing sounds terrifying, we are talking about the LPR mother who shoplifted socks for her children twice – shoplifting is a crime involving moral turpitude; or an LPR with a minor controlled substance offense).
- Does the Constitution require the burden of proof to rest with the government in bond hearings where the noncitizen is detained over six months? If the government has the burden, what is the standard? Is it by clear and convincing evidence? By a preponderance of the evidence? And, must bond hearings be afforded every six months?
In other words, in bond hearing for noncitizens detained for more than six months under INA § 235(b) (applicants for admission); INA § 236(c) (criminal noncitizens); or INA § 236(a) (any noncitizen in removal proceedings) is the noncitizen entitled to release unless the government provides by clear and convincing evidence that the noncitizen is a flight risk or a danger to the community? Can the government meet its burden by establishing by a preponderance of the evidence that the noncitizen is a danger to the community or a flight risk? Must the length of the noncitizen’s detention be weighed in favor of release? And, must new bond hearings be automatically afforded every six months?
Again, if you have not donated to the ACLU, today might be a good day to do so. The case is Rodriguez v. Jennings, Nos. 13-56706 and 13-56744 (9th Cir. Apr. 12, 2018).