Magistrate judge doubtful about certifying immigrant class

SAN FRANCISCO — A federal magistrate judge was skeptical at oral arguments on Thursday about whether she should certify a nationwide class of immigrants previously ordered deported and seeking bond hearings after 180 days of detention.

The case was another significant challenge by the ACLU to immigrant detention after it lost a U.S. Supreme Court case in February on automatic, periodic bond hearings.

The Supreme Court ruled against the ACLU in that case, saying that being in immigration detention for six months did not entitle those facing possible deportation to automatic bond hearings.

The high court returned the case to the 9th U.S. Circuit Court of Appeals for review of the due process question in the case, which the justices did not address. Jennings v. Rodriguez, 15-1204.

“I’m not even comfortable yet that the broad class that you’ve identified would be appropriate,” Judge Jacqueline Scott Corley said to plaintiffs’ attorney Judah Lakin, an associate at Van Der Hout, Brigagliano & Nightingale LLP. He asked Corley if she intended to hold off on certifying the class while the 9th Circuit examined the due process issues raised in Jennings.

“I’m not convinced that I could or should on the record I have in front of me, and plus, as you pointed out, the 9th Circuit is addressing it right now,” Corley responded.

Lakin also asked Corley to issue an injunction giving his clients and other putative class members initial bond hearings.

The Jennings decision disfavors the injunction, according to lawyers for the Executive Office for Immigration Review, part of the U.S. Department of Justice. Gonzalez et al. v. Sessions et al., 18-CV01869 (N.D. Cal., filed March 17, 2018).

Corley focused her questions on when she could disregard 9th Circuit case law about bond hearings for detained immigrants such as Lakin’s clients.

“The question really boils down to … the standard for when I can disregard binding 9th Circuit precedent,” Corley said. She was referring to a case mandating that non-citizens detained for six months or longer after being ordered deported should get bond hearings. Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011).

Jennings should also apply to those immigrants, according to Cara Alsterberg, a trial attorney with the U.S. Department of Justice.

“That case extends here,” Alsterberg said.

“It just means that you don’t get periodic bond hearings,” Lakin countered in reference to Jennings.

Corley should see the high court bar on periodic bond hearings as different from initial hearings for his clients, Lakin said.

Lakin’s co-counsel included Centro Legal de la Raza, the Law Offices of Matthew H. Green, and the American Civil Liberties Union.

The best avenue for the plaintiffs would be to seek relief under a U.S. Supreme Court case, Zadvydas v. Davis, according to Julian Kurz, who also argued for the government.

The Supreme Court found in Zadvydas that the government could not indefinitely detain immigrants whom no other country would accept. Zadvydas v. Davis, 99-7791.

“We think that the Zadvydas analysis is how all of named and putative class members should be seeking their relief,” Kurz said. A decision on their release and not a bond hearing was the answer in this case, he said.

Corley seemed to take issue with the stance.

“You have to give them a bond hearing because how else do you decide if they need to be detained or not?” she said.

“The vast majority of plaintiffs cannot seek relief via Zadvydas,” Lakin said.

Because their complaint was about prolonged, not indefinite, detention, that was not an option in this case, he said.