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Case Name Khoury v. Asher IM-WA-0021
Docket / Court 2:13-cv-01367-RAJ ( W.D. Wash. )
State/Territory Washington
Case Type(s) Immigration and/or the Border
Special Collection Post-WalMart decisions on class certification
Attorney Organization ACLU Chapters (any)
ACLU National (all projects)
Northwest Immigrant Rights Project (NWIRP)
Case Summary
On August 1, 2013, immigration detainees filed this lawsuit in the Western District of Washington against the Department of Homeland Security (DHS) and the Department of Justice (DOJ) challenging the government's policy and practice of detaining immigrants in deportation proceedings even when they ... read more >
On August 1, 2013, immigration detainees filed this lawsuit in the Western District of Washington against the Department of Homeland Security (DHS) and the Department of Justice (DOJ) challenging the government's policy and practice of detaining immigrants in deportation proceedings even when they were released from criminal custody some time earlier. They alleged that this practice violates the Immigration and Nationality Act (INA) and the plaintiffs' due process rights under the Fifth Amendment. The plaintiffs, represented by attorneys from the ACLU of Washington, the ACLU Immigrants' Rights Project, the Northwest Immigrant Rights Project, and the firm of Gibbs Houston Pauw, are seeking class certification and injunctive and declaratory relief. In particular, plaintiffs are requesting individualized bond hearings.

The plaintiffs were lawful permanent residents who were convicted of crimes and were released from criminal custody long before they were detained by ICE. When detained by ICE, they were held in mandatory detention. Plaintiffs alleged that ICE has misapplied the mandatory detention statute, 8 U.S.C § 1226(c), to individuals like them who have been living in the United States for years since their release without incident. They argued that the statute only allows mandatory detention for people who are convicted of certain crimes and who are taken into immigration custody at the time they are released from the criminal justice system for such a crime.

On October 7, 2013, the court (Judge Richard A. Jones) terminated the defendants' motion for a scheduling conference and the plaintiffs' motion for summary judgment and a permanent injunction. The court found that the case could be resolved based on the plaintiffs' motion for a preliminary injunction and the defendants' motion to dismiss.

On March 11, 2014, the court granted the plaintiffs’ motion for class certification, certifying under Rule 23(b)(2) “[a]ll individuals in the Western District of Washington who the government asserts or will assert are subject to mandatory detention under 8 U.S.C. § 1226(c) and who were not taken into immigration custody immediately upon their release from criminal custody for an offense referenced in § 1226(c)(1).” Khoury v. Asher, 3 F.Supp.3d 877, 890 (W.D. Wash. 2014). The court dismissed the plaintiffs’ motion for a preliminary injunction without prejudice, but issued declaratory relief in the following form: “The government may not subject an alien to mandatory detention via 8 U.S.C. § 1226(c) unless the government took the alien into custody immediately upon his release from custody for an offense described in subparagraphs (1)(A) through (1)(D) of § 1226(c).”

On April 9, 2014, the court entered judgment for the plaintiffs, and the defendants appealed the class certification to the Ninth Circuit. On August 4, 2016, the Ninth Circuit affirmed the decision of the district court certifying a class of immigrant detainees and declaring their entitlement to bond hearings. The court reasoned that the plain language of 8 U.S.C. § 1226(c), stating that mandatory detention only applies to immigrants detained "when [they are] released" from criminal custody, conveyed a degree of immediacy and therefore applied only to immigrants detained promptly after their release from criminal custody. Khoury v. Asher, 667 Fed. Appx. 966 (9th Cir. 2016).

In reaching its decision, the Ninth Circuit cited to a related case decided the same day and reaching the same conclusion that the government may detain without a bond hearing only those immigrants it takes into immigration custody promptly upon their release from criminal custody. Preap v. Johnson, 831 F.3d 1193 (9th Cir. 2016). The government appealed both decisions and on March 19, 2018, the Supreme Court of the United States granted certiorari in order to resolve a circuit split on the meaning of 8 U.S.C. § 1226(c). Nielsen v. Preap, 138 S. Ct. 1279 (2018). The case is still ongoing.

Jennifer Bronson - 11/11/2013
Allison Hight - 03/27/2016
Eva Richardson - 10/07/2018

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Issues and Causes of Action
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Constitutional Clause
Due Process
Over/Unlawful Detention
Placement in detention facilities
Detention - criteria
Detention - procedures
Plaintiff Type
Private Plaintiff
Causes of Action Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.
Defendant(s) Department of Homeland Security
Department of Justice
Plaintiff Description Immigration detainees
Indexed Lawyer Organizations ACLU Chapters (any)
ACLU National (all projects)
Northwest Immigrant Rights Project (NWIRP)
Class action status sought Yes
Class action status granted Pending
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Declaratory Judgment
Source of Relief Litigation
Filing Year 2013
Case Ongoing Yes
2:13-cv-1367 (W.D. Wash.)
IM-WA-0021-9000.pdf | Detail
Date: 01/19/2017
Source: PACER [Public Access to Court Electronic Records]
General Documents
Class Action Complaint and Petition for Writ of Habeas Corpus [ECF# 1]
IM-WA-0021-0001.pdf | Detail
Date: 08/01/2013
Source: ACLU
Plaintiffs-Petitioners' Motion for Class Certification [ECF# 2]
IM-WA-0021-0002.pdf | Detail
Date: 08/01/2013
Source: ACLU
Order (3 F.Supp.3d 877) (W.D. Wash.)
IM-WA-0021-0003.pdf | WESTLAW| LEXIS | Detail
Date: 03/11/2014
Source: Bloomberg Law
Order Adopting Parties' Stipulation and Directing Entry of Judgment (W.D. Wash.)
IM-WA-0021-0004.pdf | Detail
Date: 04/09/2014
Source: Bloomberg Law
Memorandum of USCA [Ct. of App. ECF# 55] (667 Fed.Appx. 966)
IM-WA-0021-0005.pdf | WESTLAW| LEXIS | Detail
Date: 04/04/2016
Source: Westlaw
Judges Jones, Richard A. (W.D. Wash.)
IM-WA-0021-0003 | IM-WA-0021-0004 | IM-WA-0021-0005 | IM-WA-0021-9000
Plaintiff's Lawyers Adams, Matthew (Washington)
IM-WA-0021-0001 | IM-WA-0021-0002 | IM-WA-0021-9000
Baker, La Rond (Washington)
Dunne, Sarah A. (Washington)
IM-WA-0021-0001 | IM-WA-0021-0002 | IM-WA-0021-9000
Lee, Eunice (New York)
Mehta, Sarah L. (New York)
IM-WA-0021-0001 | IM-WA-0021-0002 | IM-WA-0021-9000
Pauw, Robert (Washington)
IM-WA-0021-0001 | IM-WA-0021-0002 | IM-WA-0021-9000
Rabinovitz, Judy (New York)
IM-WA-0021-0001 | IM-WA-0021-0002 | IM-WA-0021-9000
Strawn, Christopher (Washington)
IM-WA-0021-0001 | IM-WA-0021-0002 | IM-WA-0021-9000
Tan, Michael K. T. (New York)
IM-WA-0021-0001 | IM-WA-0021-0002 | IM-WA-0021-9000
Tao, Betsy P. (Washington)
IM-WA-0021-0001 | IM-WA-0021-0002 | IM-WA-0021-9000
Theriot-Orr, Devin T. (Washington)
IM-WA-0021-0001 | IM-WA-0021-0002 | IM-WA-0021-9000
Defendant's Lawyers Belsan, Timothy Michael (District of Columbia)
Chen, Hans (District of Columbia)
Warlick, Lori B. (District of Columbia)

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