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Case Name Padilla v. U.S. Immigration and Customs Enforcement IM-WA-0038
Docket / Court 2:18-cv-00928 ( W.D. Wash. )
State/Territory Washington
Case Type(s) Immigration and/or the Border
Attorney Organization ACLU Chapters (any)
American Immigration Council's Legal Action Center
Northwest Immigrant Rights Project (NWIRP)
Case Summary
On June 25, 2018, three plaintiffs filed this class-action lawsuit challenging the federal government's forcible separation of minor children from their parents, as well as its practice of prolonging the separation by failing to conduct credible fear interviews in a timely manner. The plaintiffs ... read more >
On June 25, 2018, three plaintiffs filed this class-action lawsuit challenging the federal government's forcible separation of minor children from their parents, as well as its practice of prolonging the separation by failing to conduct credible fear interviews in a timely manner. The plaintiffs sued the Department of Homeland Security, Immigration and Customs Enforcement, Customs and Border Patrol, the Executive Office for Immigration Review, Citizenship and Immigration Services, Health and Human Services, the Office of Refugee Resettlement, and the respective administrators of each agency in their official capacities.

The plaintiffs, mothers of young children, had entered the United States seeking asylum for themselves and their children. In May 2018, the mothers were separated from their minor children (six, five, and eight years old, respectively) and relocated to a detention center in Washington State as part of the federal government’s zero-tolerance policy targeting illegal entry. The plaintiffs challenged the federal government’s forcible separation of minor children from their parents, as well as the practice of prolonging this separation by failing to conduct credible fear interviews in a timely manner. The plaintiffs asserted Fifth Amendment due process claims, as well as violations of asylum statutes and the Administrative Procedure Act. They sought injunctive and declaratory relief. The three women filed the complaint in federal district court in the Western District of Washington on behalf of themselves and other similarly situated parents, and the case was assigned to Judge Marsha Pechman.

The plaintiffs filed an amended complaint on July 15, 2018. The amended complaint acknowledged that the day after the plaintiffs filed their complaint, a federal court in the Southern District of California implemented a nationwide injunction against family separation. While the plaintiffs were not waiving their claim for relief under the earlier filed claims (challenging the zero-tolerance policy as it applied to family separation and credible fear interviews), they planned not to pursue the claims further, pending the governments’ compliance with the nationwide order. The plaintiffs also added a claim against the government’s bond hearings process, challenging the legality of the government’s practice of excessively prolonging the detention of asylum seekers by delaying their bond hearings and failing to establish any timeline for these hearings. In August, the plaintiffs filed a second amended complaint, confirming that they will not pursue the claims that were addressed by the nationwide injunction issued in July.

The plaintiffs later moved to certify a class. That motion was amended in September, and defined two proposed classes as follows:

• Credible Fear Interview (“CFI”) Class: All detained asylum seekers in the United States subject to expedited removal proceedings under 8 U.S.C. § 1225(b) who are not provided a credible fear determination within 10 days of requesting asylum or expressing a fear of persecution to a DHS official, absent a request by the asylum seeker for a delayed credible fear interview.

• Bond Hearing (“BH”) Class: All detained asylum seekers who entered the United States without inspection, were initially subject to expedited removal proceedings under 8 U.S.C. § 1225(b), were determined to have a credible fear of persecution, but are not provided a bond hearing with a verbatim transcript or recording of the hearing within 7 days of requesting a bond hearing.

On September 6, 2018, the defendants filed a Motion to Dismiss. The defendants claimed that the court was not authorized to hear the plaintiffs' claims challenging the timing of credible fear interviews. The defendants also sought dismissal on the grounds that members of the Credible Fear Class had no right to enter the U.S. or to have the determination of their admissibility subject to any procedural safeguards. The defendants further argued that the plaintiffs' claims were not amenable to resolution in a class-action suit and that the APA did not provide a cause of action for certain claims that were made.

On September 20, 2018, the plaintiffs filed a motion for a preliminary injunction. The plaintiffs sought injunctive relief from the court, asking that the court order the EOIR defendants to 1) conduct bond hearings within seven days of a hearing request, 2) place the burden of proof in those hearings on DHS, 3) produce a recording or verbatim transcript of the hearings and 4) produce a contemporaneous written decision with particularized determinations. In the absence of this action, the plaintiffs asserted that they will face irreparable harm in the form of violations of their constitutional rights, prolonged detention, and interference with their ability to pursue their asylum claims.

On December 11, 2018, Judge Marsha Pechman issued an order granting in part and denying in part the defendants' Motion to Dismiss. Judge Pechman concluded that the court had jurisdiction to hear the suit, that both classes adequately stated a claim for constitutional relief from alleged violations of due process by the defendants, and that the Bond Hearing class succeeded in stating a claim under the APA concerning certain procedural safeguards. Judge Pechman granted the motion in part, resulting in the dismissal of the Credible Fear Interview class' APA claim and the Bond Hearing class' APA claim concerning the timing of bond hearings. 354 F. Supp. 3d 1218.

On March 6, 2019, Judge Pechman granted the plaintiffs' Amended Motion for Class Certification and certified the following classes:

Credible Fear Interview Class: All detained asylum seekers in the United States subject to expedited removal proceedings under 8 U.S.C. § 1225(b) who are not provided a credible fear determination within ten days of the later of (1) requesting asylum or expressing a fear of persecution to a DHS official or (2) the conclusion of any criminal proceeding related to the circumstances of their entry, absent a request by the asylum seeker for a delayed credible fear interview.

Bond Hearing Class: All detained asylum seekers who entered the United States without inspection, were initially subject to expedited removal proceedings under 8 U.S.C. § 1225(b), were determined to have a credible fear of persecution, but are not provided a bond hearing with a verbatim transcript or recording of the hearing within seven days of requesting a bond hearing. 2019 WL 1056466.


On April 5, 2019, Judge Pechman issued an order granting the plaintiffs' Motion for Preliminary Injunction. The injunction mandated that the defendants conduct bond hearings within seven days of a bond request by a class member and that the burden would be placed on the defendants to demonstrate why the class member should not be released on bond. The injunction also mandated that the bond hearing be recorded and that a written decision with individualized determinations and finding be produced at the conclusion of a bond hearing. 379 F.Supp.3d 1170.

On April 26, 2019, the defendants filed a motion to vacate the preliminary injunction.

On May 20, 2019, the plaintiffs filed a Third Amended Complaint in light of the Attorney General's decision in the Matter of M-S-, "announcing that immigrants in removal proceedings awaiting the determination of their application for asylum must be detained for the duration of that process, subject to release only under a highly-limited 'parole' system adjudicated solely by immigration officials." The plaintiffs added three new claims to challenge the Attorney General's decision; (1) that section § 1225(b)(1)(B)(ii) is unconstitutional, (2) that the Attorney General’s decision in Matter of M-S- violates section 1225(b)(1), and (3) Matter of M-S- should have been issued in notice and comment rulemaking. The plaintiffs also amended the complaint to add declaratory and injunctive relief mandating that the defendants do not follow a policy of denying bond hearings to noncitizens found to have a credible fear of persecution.

On May 28, 2019, in wake of the Attorney General's decision, the plaintiffs filed a Motion for Modification of the Existing Preliminary Injunction. The plaintiffs sought to have the preliminary injunction modified to ensure that class members found to have credible fear would be granted a bond hearing before an impartial adjudicator to determine if further detention is justified.

On July 2, 2019, Judge Pechman issued an order affirming the previously entered preliminary injunction and modifying the injunction to conclude that the Bond Hearing Class is constitutionally entitled to a bond hearing pending resolution of their asylum applications. Judge Pechman found that the statute denying these class members a bond hearing is unconstitutional because "any statute that provides for 'no bond hearing at all' is unlawful on its face." 387 F.Supp.3d 1219.

On July 3, 2019, the defendants appealed the order affirming and modifying the preliminary injunction to the Ninth Circuit.

Only July 9, 2019, the defendants filed an Emergency Motion to Stay Pending Appeal the district court's preliminary injunction, arguing that the injunction will cause substantial harm to the defendants by "drastically limiting the government’s ability to enforce the immigration laws that Congress has written."

On July 12, 2019, the Ninth Circuit issued a temporary stay on the preliminary injunction to allow for the parties to file briefs on the Motion to Stay Pending Appeal.

On July 22, 2019, Circuit Judges Mary Schroeder, William Canby, and Morgan Christen issued an order granting in part and denying in part the defendants' Emergency Motion to Stay. The appeals court declined to stay the part of the district court injunction holding that the Bond Hearing Class is constitutionally entitled to bond hearings pending resolution of their asylum applications. The appeals court granted the motion to stay the part of the injunction regarding deadlines for requested bond hearings and the procedural guidelines for those bond hearings, finding that these procedures would impose a short-term hardship on the government and the immigration system.

After hearing oral argument in October 2019, on March 27, 2020, a Ninth Circuit panel (Judge Sidney R. Thomas, Judge Michael Daly Hawkins, and Judge Bridget S. Bade) issued an opinion and order affirming in part the district court's preliminary injunction and directing the district court to "reconsider some of the technical aspects of its order." 2020 WL 1482393. Writing for the panel, Judge Thomas concluded that the district court did not abuse its discretion in finding that the plaintiffs were likely to succeed on the merits of their due process claim regarding the availability of bond hearings, "that they are constitutionally entitled to individualized bond hearings before a neutral decisionmaker," and that "the theoretical availability of the habeas process did not alone satisfy due process." Moreover, Judge Thomas held that the district court did not abuse its discretion "in concluding that the plaintiffs would suffer irreparable harm absent the grant of a preliminary injunction," in the form of "substandard physical conditions, low standards of medical care, lack of access to attorneys and evidence as Plaintiffs prepare their cases, separation from their families, and retraumatization of a population already found to have legitimate circumstances of victimization." However, Judge Thomas vacated and remanded to the district court Part A of the preliminary injunction, which laid out the procedural guidelines for the required bond hearings, to further develop the factual record and to revisit the scope of the injunction.

Judge Bade dissented from the panel's opinion and order and concluded that:
"despite Congress unequivocally barring lower courts from issuing classwide injunctions against the operation of certain immigration statutes, the majority opinion gives a green light for the district courts in this circuit (as well as this court) to issue (and uphold) such relief. And, even if the district court had jurisdiction to issue injunctive relief, the preliminary injunction is overbroad and exceeds what the Constitution demands."


The case is ongoing.

Alexandra Gilewicz - 11/12/2018
Aaron Gurley - 06/01/2020


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Content of Injunction
Goals (e.g., for hiring, admissions)
Preliminary relief granted
Defendant-type
Law-enforcement
General
Bail/Bond
Family reunification
Fines/Fees/Bail/Bond
Over/Unlawful Detention
Placement in detention facilities
Immigration/Border
Asylum - procedure
Constitutional rights
Detention - criteria
Detention - procedures
Family
Refugees
Plaintiff Type
Non-profit NON-religious organization
Private Plaintiff
Causes of Action Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Habeas Corpus, 28 U.S.C. §§ 2241-2253; 2254; 2255
Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.
Defendant(s) US Immigration and Customs Enforcement
Plaintiff Description Credible Fear Interview Class: All detained asylum seekers in the United States subject to expedited removal proceedings who are not provided a credible fear determination within 10 days of requesting asylum or expressing a fear of persecution to a DHS official. Bond Hearing Class: All detained asylum seekers who entered the United States without inspection, determined to have a credible fear of persecution, but are not provided a bond hearing within 7 days of requesting a bond hearing.
Indexed Lawyer Organizations ACLU Chapters (any)
American Immigration Council's Legal Action Center
Northwest Immigrant Rights Project (NWIRP)
Class action status sought Yes
Class action status granted Yes
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief Preliminary injunction / Temp. restraining order
Source of Relief Litigation
Filed 06/25/2018
Case Ongoing Yes
Additional Resources
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Docket(s)
2:18-cv-00928-MJP (W.D. Wash.)
IM-WA-0038-9000.pdf | Detail
Date: 03/27/2020
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint - Class Action for Injunctive and Declaratory Relief [ECF# 1]
IM-WA-0038-0001.pdf | Detail
Date: 06/25/2018
Source: PACER [Public Access to Court Electronic Records]
Order on Motion to Dismiss [ECF# 91] (354 F.Supp.3d 1218) (W.D. Wash.)
IM-WA-0038-0002.pdf | WESTLAW| LEXIS | Detail
Date: 12/11/2018
Source: PACER [Public Access to Court Electronic Records]
Order Granting Certification of the Classes [ECF# 102] (2019 WL 1056466) (W.D. Wash.)
IM-WA-0038-0003.pdf | WESTLAW | Detail
Date: 03/06/2019
Source: PACER [Public Access to Court Electronic Records]
Order Granting Preliminary Injunction [ECF# 110] (379 F.Supp.3d 1170) (W.D. Wash.)
IM-WA-0038-0004.pdf | WESTLAW| LEXIS | Detail
Date: 04/05/2019
Source: PACER [Public Access to Court Electronic Records]
Third Amended Complaint: Class Action for Injunctive and Declaratory [ECF# 130]
IM-WA-0038-0005.pdf | Detail
Date: 05/20/2019
Source: PACER [Public Access to Court Electronic Records]
Order on Motions re: Preliminary Injunction [ECF# 149] (387 F.Supp.3d 1219) (W.D. Wash.)
IM-WA-0038-0006.pdf | WESTLAW| LEXIS | Detail
Date: 07/02/2019
Source: PACER [Public Access to Court Electronic Records]
Opinion (2020 WL 1482393)
IM-WA-0038-0007.pdf | WESTLAW | Detail
Date: 03/27/2020
Source: Westlaw
show all people docs
Judges Pechman, Marsha J. (W.D. Wash.) show/hide docs
IM-WA-0038-0002 | IM-WA-0038-0003 | IM-WA-0038-0004 | IM-WA-0038-0006 | IM-WA-0038-9000
Thomas, Sidney Runyan (Ninth Circuit) show/hide docs
IM-WA-0038-0007
Plaintiff's Lawyers Abrams, William F. (Washington) show/hide docs
IM-WA-0038-9000
Adams, Matthew (Washington) show/hide docs
IM-WA-0038-0001 | IM-WA-0038-0005 | IM-WA-0038-9000
Ahearne, Thomas Fitzgerald (Washington) show/hide docs
IM-WA-0038-9000
Balakrishnan, Anand V. (New York) show/hide docs
IM-WA-0038-0005 | IM-WA-0038-9000
Boisen, Joanna Plichta (Washington) show/hide docs
IM-WA-0038-9000
Chiang, Emily (Washington) show/hide docs
IM-WA-0038-0005
Hodges, Benjamin J. (Washington) show/hide docs
IM-WA-0038-9000
Kang, Leila (Washington) show/hide docs
IM-WA-0038-0001 | IM-WA-0038-0005 | IM-WA-0038-9000
Korthuis, Aaron (Washington) show/hide docs
IM-WA-0038-0005 | IM-WA-0038-9000
Macleod-Ball, Kristin A. (Massachusetts) show/hide docs
IM-WA-0038-0005 | IM-WA-0038-9000
Madrid, Glenda Melinda Aldana (Washington) show/hide docs
IM-WA-0038-0001 | IM-WA-0038-9000
Ormiston, Kevin (Washington) show/hide docs
IM-WA-0038-9000
Rabinovitz, Judy (New York) show/hide docs
IM-WA-0038-0005 | IM-WA-0038-9000
Realmuto, Trina (Massachusetts) show/hide docs
IM-WA-0038-0005 | IM-WA-0038-9000
Tan, Michael K. T. (New York) show/hide docs
IM-WA-0038-0005 | IM-WA-0038-9000
Defendant's Lawyers Bingham, Lauren Crowell (District of Columbia) show/hide docs
IM-WA-0038-9000
Darrow, Joseph A. (District of Columbia) show/hide docs
IM-WA-0038-9000
Ramkumar, Archith (District of Columbia) show/hide docs
IM-WA-0038-9000
Wilson, Sarah S. (District of Columbia) show/hide docs
IM-WA-0038-9000

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