article: On Apr. 6, 2016, two noncitizens—a Mexican citizen and an asylum-seeking Honduran national, both detained pending immigration removal hearings—brought this class-action lawsuit in the U.S. District Court for the Central District of California. Represented by private counsel and the ACLU, the plaintiffs sued the Department of Justice (DOJ), the Department of Homeland Security (DHS), and Immigration and Customs Enforcement (ICE). The plaintiffs sought injunctive and declaratory relief, alleging violations of 8 U.S.C. § 1226(a) and the Fifth and Eighth Amendments of the U.S. Constitution. Specifically, the plaintiffs alleged that they were kept in detention pending removal proceedings, despite having been granted release on bond after having been found not to pose any significant flight risk or danger to the community, because they could not afford to pay the cash bond. The plaintiffs’ class-action complaint challenged the federal practice of detaining noncitizens for failure to post cash bond without considering the noncitizen’s financial resources, or the availability of alternative forms of bond or other conditions of supervision which would enable the detainee’s release. The plaintiffs moved for class certification on Apr. 22, 2016. The proposed class was specified as all individuals detained under 8 U.S.C. § 1226(a), on a bond set by an ICE officer or an Immigration Judge in the Central District of California. The case was assigned to Judge Jesus G. Bernal. On June 10, 2016, the defendants moved to dismiss this case. On Nov. 20, 2016, Judge Bernal denied the defendants’ motion and granted the plaintiffs’ motions for class certification and class-wide preliminary injunction, finding that the plaintiffs were likely to prevail on the merits of their claim. The preliminary injunction order required that the defendants develop and apply guidelines requiring officers to Immigration Judges to take into account a noncitizen detainee’s financial ability to pay a bond, to refrain from setting cash bonds at amounts greater than what was required to ensure appearance, and to consider alternative forms of supervision when determining conditions of release. 2016 WL 7116611 (C.D. Cal. 2016). On Dec. 12, 2016, the defendants appealed the District Court’s preliminary injunction to the U.S. Court of Appeals for the Ninth Circuit. On the same day, the defendants moved ex parte to stay proceedings related to the preliminary injunction pending resolution of the appeal. On Dec. 28, 2016, Judge Bernal denied the motion to stay. On Jan. 4, 2017, however, the Ninth Circuit granted the defendants’ motion to stay the District Court’s order pending appeal. The defendants then filed their opening brief in the Ninth Circuit on Feb. 1, 2017. They argued that the District Court had erred in issuing the preliminary injunction because federal courts lacked jurisdiction (under federal statutes and because the plaintiffs had not exhausted administrative remedies); because the plaintiffs' statutory and constitutional claims were unlikely to succeed (because ability to pay is not a primary factor in determining bond); and because current bond determination proceedings did not violate noncitizens' constitutional rights (because they received full and fair hearings, and because the primary purpose of bond was to ensure that the noncitizen had an incentive to appear at future removal proceedings rather than abscond). The plaintiffs answered in the Ninth Circuit on Mar. 1, 2017. They argued that federal courts had jurisdiction; that the preliminary injunction applied only to individuals already found eligible for release, whose bond was to be determined, and that the INA should be construed to prevent the defendants' bond-setting policies from violating the Constitution; and that the plaintiffs continued to suffer irreparable harm from their detention. Also in Mar. 2017 in the Ninth Circuit, several amici briefs were filed on behalf of the plaintiffs, including by retired Board of Immigration Appeals members and Immigration Judges, and by the American Bar Association. On June 30, 2017, the District Court denied the defendants' motion to dismiss, and consolidated this case with another, <i>Marvin Rodriguez Aroche v. Jason Park</i>, No. 8:17-cv-00367 (C.D. Cal. Mar. 1, 2017). The Ninth Circuit held oral argument on July 11, 2017 and issued a decision on Oct. 2, 2017, affirming the District Court's class-wide preliminary injunction. 872 F.3d 976 (9th Cir. 2017). In the opinion, the Court found that the District Court did not abuse its discretion by requiring immigration officials making bond decisions to consider, inter alia, detainees' financial ability to obtain bond and alternative conditions of release. The plaintiffs were likely to succeed on the merits of their Fifth Amendment Due Process claim, because "[s]etting a bond amount without considering financial circumstances or alternative conditions of release undermines the connection between the bond and the legitimate purpose of ensuring the non-citizen’s presence at future hearings." The plaintiffs had established a likelihood of irreparable harm because "they are likely to be unconstitutionally detained for an indeterminate period of time." Finally, the balance of equities and the public interest favored the plaintiffs because "any additional administrative costs to the government are far outweighed by the considerable harm to Plaintiffs’ constitutional rights in the absence of the injunction" and because "[t]he public interest benefits from an injunction that ensures that individuals are not deprived of their liberty and held in immigration detention because of bonds established by a likely unconstitutional process." The Ninth Circuit also lifted the stay of the District Court's preliminary injunction pending appeal. The defendants were given until Jan. 2, 2018 to petition the Ninth Circuit for a panel or en banc rehearing, but they filed no petition. In the District Court on Nov. 21, 2017, Judge Bernal approved the parties' joint stipulation for an extension of time to implement the part of his Nov. 10, 2016 order granting a class-wide preliminary injunction. The defendants were required to update the plaintiffs by Feb. 16, 2018 about their progress in meeting the injunction requirements. On Dec. 1, 2017, Magistrate Judge Kenly Kato granted the plaintiffs' motion to compel production of documents and to obtain fees. 2017 U.S. Dist. LEXIS 198255 (C.D. Cal. 2017). On Jan. 3, 2018, Magistrate Judge Kato granted $22,820 in fees regarding this motion. As discovery got underway, Magistrate Judge Kato decided that a Special Master should be appointed to consider the parties' discovery disputes and facilitate the timely production of documents. Rosalyn Chapman was appointed Special Master on May 23, 2018. The parties then engaged in extensive discovery over the next year. On May 16, 2019, the parties made a joint request to the District Court, asking for this case to be referred for a settlement conference. Judge Bernal granted the request on May 21 and referred the case to Magistrate Judge Laurel Beeler. The case is ongoing.
summary: In 2016, noncitizens detained pending immigration removal proceedings brought this class action, alleging a federal practice of detaining noncitizens solely on the basis of indigence, by failing to take into account their ability to pay bond or to consider alternative means of supervision to ensure appearance. The District Court granted plaintiffs' request for a PI, and the 9th Circuit affirmed. The parties have since engaged in extensive discovery, but jointly requested to be referred for a settlement conference in May 2019. The case is ongoing.