On May 16, 2007, immigration detainees who have been held for more than six months without a bond hearing while adjudicating their removal decisions petitioned the U.S. District Court for the Central District of California for a writ of habeas corpus. The plaintiffs claimed was that without a bond hearing, detention over six months violates the Due Process Clause of the Fifth Amendment and the statutory requirements of the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq. They sought a court order requiring that DHS provide individual hearings before an immigration judge at which DHS would bear the burden to prove by clear and convincing evidence that prolonged detention is warranted, and a declaration that failure to provide such a hearing is a violation of the Fifth Amendment Due Process Clause and the statutory requirements of the INA.

The plaintiffs sought to certify a class of "all people who (1) are or will be detained for longer than six months pursuant to the general immigration detention statutes pending completion of removal proceedings, including judicial review, (2) are not detained pursuant to one of the national security detention statutes, and (3) have not been afforded a hearing to determine whether their prolonged detention is justified." On March 19, 2008, the District Court (Judge Terry J. Hatter, Jr.) denied the class certification without explanation. Plaintiffs then appealed to the Court of Appeals for the Ninth Circuit. On August 20, 2009, the Court of Appeals (Judge Betty Fletcher) reversed the District Court's denial of class certification, stating that the defendants failed to provide any valid reason for denying class certification. 591 F.3d 1105 (9th Cir. 2009).

Subsequently, the District Court (Judge Hatter) certified the class on April 5, 2010. On October 15, 2010, Plaintiffs petitioned the District Court to certify subclasses determined by the specific INA section that authorizes the class member's detention. These subclasses were certified by Judge Hatter on March 8, 2011.

On November 22, 2010, Plaintiffs entered a motion for judgment on the pleadings. On January 27, 2011, Judge Hatter denied this motion.

On April 16, 2012, this case was consolidated with Ngaywa v. Holder (11-cv-01287) (The docket sheet is included in this case record, but the complaint is under seal and therefore unavailable).

On June 25, 2012, the plaintiffs moved for a preliminary injunction, requiring the defendants to begin providing members of the class with bond hearings. Judge Hatter granted this motion on September 13, 2012, requiring the defendants to identify all members of the subclasses according to INA sections 1225(b) and 1226(c), and to provide bond hearings in front of an immigration judge. 2012 WL 7653016 (C.D. Cal. 2012). The defendants moved for an emergency stay of the preliminary injunction, which Judge Hatter denied on September 28, 2012. The defendants then appealed to the Court of Appeals for the Ninth Circuit, which affirmed the District Court's denial of emergency stay on April 16, 2013 (Judge Kim Wardlaw). 715 F.3d 1127 (9th Cir. 2013).

On February 8, 2013, the plaintiffs filed a motion for summary judgment; The defendants subsequently filed a cross-motion for summary judgment on March 25, 2013. On August 6, 2013, Judge Hatter granted the plaintiffs' motion for summary judgment, ruling all class members were entitled to a bond hearing by their 181st day of detention. The order permanently enjoined the defendants to provide at least seven day notice of an individual's hearing, hold a bond hearing for all class members who have been detained for more than 6 months within 30 days of the order, and submit a status report within 60 days describing all steps taken to timely identify all current and future class members to ensure that they will receive a proper bond hearing.

The defendants appealed the summary judgment and injunction to the Ninth Circuit on September 30, 2013. On October 28, 2015, the Ninth Circuit issued an opinion largely affirming the injunction. They reversed and remanded to the District Court that they should exclude non-citizens who have been ordered removed from the injunction as they are not members of the certified class (non-citizens detained pending removal proceedings), that immigration judges must consider the length of detention, and that immigration judges must provide bond hearings every month.

Defendants appealed and on June 20, 2016, the Supreme Court granted certiorari, and arguments are scheduled for November 2016.

The case is still ongoing.

Dan Osher - 08/10/2013
Virginia Weeks - 11/02/2016


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