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Case Name Hernandez v. Lynch [later Sessions] IM-CA-0079
Docket / Court 5:16-cv-00620 ( C.D. Cal. )
State/Territory California
Case Type(s) Immigration and/or the Border
Attorney Organization ACLU Immigrants' Rights Project
ACLU National (all projects)
ACLU of Southern California
Case Summary
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 ... read more >
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, the Department of Homeland Security, and the latter's component Immigration and Customs Enforcement. 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 is 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, 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 (Judges Edward Leavy and Barry G. Silverman) granted the defendant’s motion to stay the District Court’s order pending appeal.

Defendants then filed their opening brief in the Ninth Circuit on Feb. 1, 2017. Defendants argued that the District Court had erred in issuing the preliminary injunction because federal courts lacked jurisdiction (under federal statutes and because plaintiffs had not exhausted administrative remedies); because 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 do not violate noncitizens' constitutional rights (because they received full and fair hearings, and because the primary purpose of bond is to ensure that the noncitizen has an incentive to appear at future removal proceedings rather than abscond).

Plaintiffs answered in the Ninth Circuit on Mar. 1, 2017. Plaintiffs 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 defendants' bond-setting policies from violating the Constitution; and that plaintiffs continued to suffer irreparable harm from their detention. Defendants replied on Mar. 15.

Also in Mar. 2017 in the Ninth Circuit, several amici briefs were filed on behalf of plaintiffs, including by retired BIA members and Immigration Judges, and by the American Bar Association.

On June 30, 2017, the District Court denied defendants' motion to dismiss, and consolidated this case with another, Marvin Rodriguez Aroche v. Jason Park, No. 8:17-cv-00367 (C.D. Cal. Mar. 1, 2017).

The Ninth Circuit (Judges Reinhardt, Fernandez, and Wardlaw) 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). Judge Reinhardt wrote the opinion, on which Judge Fernandez partially concurred and partially dissented.

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. 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." 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 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, but Judge Fernandez dissented from this order.

Defendants have until Jan. 2, 2018 to petition the Ninth Circuit for a panel or en banc rehearing.

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. Defendants must update plaintiffs by Feb. 16, 2018 about their progress in meeting the injunction requirements.

On Dec. 1, 2017, Magistrate Judge Kenly Kato granted plaintiffs' motion to compel production of documents and to obtain fees. 2017 U.S. Dist. LEXIS 198255 (C.D. Cal. 2017).

This case is ongoing in both the district and circuit courts.

Nicholas Hazen - 01/23/2017
Ava Morgenstern - 12/05/2017


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Equal Protection
Content of Injunction
Preliminary relief granted
Defendant-type
Jurisdiction-wide
Law-enforcement
General
Bail
Classification / placement
Placement in detention facilities
Immigration/Border
Detention - criteria
Undocumented immigrants - rights and duties
Plaintiff Type
Private Plaintiff
Type of Facility
Government-run
Causes of Action Declaratory Judgment Act, 28 U.S.C. § 2201
Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.
Defendant(s) U.S.
U.S.
U.S.
Plaintiff Description Two noncitizens detained under the Immigration and Nationality Act, a Mexican citizen and an asylum-seeking Honduran national, on behalf of a class of 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.
Indexed Lawyer Organizations ACLU Immigrants' Rights Project
ACLU National (all projects)
ACLU of Southern California
Class action status sought Yes
Class action status granted Yes
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Preliminary injunction / Temp. restraining order
Injunction / Injunctive-like Settlement
Source of Relief Litigation
Case Ongoing Yes
Additional Resources
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  Hernandez v. Sessions
www.aclu.org
Date: Oct. 18, 2017
By: American Civil Liberties Union (ACLU)
[ Detail ] [ External Link ]

  Hernandez v. Lynch
www.aclusocal.org
Date: Mar. 8, 2017
By: American Civil Liberties Union (ACLU) of Southern California
[ Detail ] [ External Link ]

Docket(s)
5:16-cv-620 (C.D. Cal.)
IM-CA-0079-9000.pdf | Detail
Date: 11/22/2017
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint - Class Action [ECF# 1]
IM-CA-0079-0002.pdf | Detail
Date: 04/06/2016
Source: PACER [Public Access to Court Electronic Records]
Order: (1) DENYING Defendants’ Motion to Dismiss (Dkt. No. 59); (2) GRANTING Plaintiffs’ Motion for Class Certification (Dkt. No. 24); and (3) GRANTING Plaintiffs’ Motion for Preliminary Injunction (Dkt. No. 45) (IN CHAMBERS) [ECF# 84] (2016 WL 7116611) (C.D. Cal.)
IM-CA-0079-0001.pdf | WESTLAW | Detail
Date: 11/10/2016
Source: PACER [Public Access to Court Electronic Records]
Order Granting Plaintiffs-Petitioners' Motion For Class-Wide Preliminary Injunction [ECF# 85] (2016 WL 7116611) (C.D. Cal.)
IM-CA-0079-0004.pdf | WESTLAW | Detail
Date: 11/10/2016
Source: PACER [Public Access to Court Electronic Records]
Order Granting Motion to Stay District Court's Order Pending Appeal [Ct. of App. ECF# 94]
IM-CA-0079-0003.pdf | Detail
Date: 01/04/2017
Source: PACER [Public Access to Court Electronic Records]
Opinion [Ct. of App. ECF# BL-71] (872 F.3d 976)
IM-CA-0079-0005.pdf | WESTLAW| LEXIS | Detail
Date: 10/02/2017
Source: PACER [Public Access to Court Electronic Records]
Order Approving Joint Stipulation to Extend Timetable to Implement the Court's November 10, 2016 Order [ECF# 127] (C.D. Cal.)
IM-CA-0079-0006.pdf | Detail
Date: 11/21/2017
Source: PACER [Public Access to Court Electronic Records]
Judges Bernal, Jesus Gilberto (C.D. Cal.)
IM-CA-0079-0001 | IM-CA-0079-0004 | IM-CA-0079-0006 | IM-CA-0079-9000
Fernandez, Ferdinand Francis (C.D. Cal., Ninth Circuit)
IM-CA-0079-0005
Reinhardt, Stephen Roy (Ninth Circuit)
IM-CA-0079-0005
Wardlaw, Kim McLane (C.D. Cal., Ninth Circuit)
IM-CA-0079-0005
Plaintiff's Lawyers Arulanantham, Ahilan T (California)
IM-CA-0079-0002 | IM-CA-0079-9000
Delgado, Matthew Erik (California)
IM-CA-0079-9000
Frink, Grayce S. Patricia (California)
IM-CA-0079-9000
Hein, Devon Lashae (California)
IM-CA-0079-9000
Hidalgo, Michael David (California)
IM-CA-0079-9000
Hsiao, Winston Ping (California)
IM-CA-0079-9000
Kang, Stephen B. (California)
IM-CA-0079-9000
Kaufman, Michael Bryan (California)
IM-CA-0079-0002 | IM-CA-0079-9000
Korevec, John Christopher (California)
IM-CA-0079-9000
Rabinovitz, Judy (New York)
IM-CA-0079-9000
Sloan, Matthew Eric (California)
IM-CA-0079-9000
Smith, Douglas Allen (California)
IM-CA-0079-9000
Tan, Michael K. T. (New York)
IM-CA-0079-9000
Defendant's Lawyers Hardy, Joseph D. Jr. (District of Columbia)
IM-CA-0079-9000
Miller, Steven C. (California)
IM-CA-0079-9000
Pratt, Sherease Rosalyn (District of Columbia)
IM-CA-0079-9000
Rossini, Laura A. (California)
IM-CA-0079-9000
Ward, Brian Christopher (District of Columbia)
IM-CA-0079-9000
Zack, Adrienne (District of Columbia)
IM-CA-0079-9000

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