Alejandro Rodriguez v. Timothy Robbins

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALEJANDRO RODRIGUEZ; ABDIRIZAK Nos. 13-56706

ADEN FARAH; JOSE FARIAS 13-56755

CORNEJO; YUSSUF ABDIKADIR;

ABEL PEREZ RUELAS, for D.C. No.

themselves and on behalf of a class 2:07-cv-03239-

of similarly situated individuals, TJH-RNB

Petitioners-Appellees/

Cross-Appellants,

OPINION

and

EFREN OROZCO,

Petitioner,

v.

TIMOTHY ROBBINS, Field Office

Director, Los Angeles District,

Immigration and Customs

Enforcement; JEH JOHNSON,

Secretary, Homeland Security;

LORETTA E. LYNCH, Attorney

General; WESLEY LEE, Assistant

Field Office Director, Immigration

and Customs Enforcement; RODNEY

PENNER, Captain, Mira Loma

Detention Center; SANDRA

HUTCHENS, Sheriff of Orange

County; NGUYEN, Officer, Officer-

in-Charge, Theo Lacy Facility;

2 RODRIGUEZ V. ROBBINS

DAVIS NIGHSWONGER, Captain,

Commander, Theo Lacy Facility;

MIKE KREUGER, Captain, Operations

Manager, James A. Musick Facility;

ARTHUR EDWARDS, Officer-in-

Charge, Santa Ana City Jail;

RUSSELL DAVIS, Jail Administrator,

Santa Ana City Jail; JUAN P.

OSUNA,* Director, Executive Office

for Immigration Review,

Respondents-Appellants/

Cross-Appellees.

*

Appeal from the United States District Court

for the Central District of California

Terry J. Hatter, Senior District Judge, Presiding

Argued and Submitted

July 24, 2015—Pasadena, California

Filed October 28, 2015

Before: Kim McLane Wardlaw and Ronald M. Gould,

Circuit Judges and Sam E. Haddon,** District Judge.

Opinion by Judge Wardlaw

*

Juan P. Osuna is substituted for his predecessor, Thomas G. Snow, as

Director, Executive Office for Immigration Review, pursuant to Federal

Rule of Appellate Procedure 43(c).

**

The Honorable Sam E. Haddon, District Judge for the U.S. District

Court for the District of Montana, sitting by designation.

RODRIGUEZ V. ROBBINS 3

SUMMARY***

Immigration

The panel affirmed in part and reversed in part the district

court’s order granting summary judgment and a permanent

injunction in a class action lawsuit by non-citizens within

the Central District of California challenging their

prolonged detentions under civil immigration detention

statutes 8 U.S.C. §§ 1225(b), 1226(a), 1226(c), and 1231(a)

without individualized bond hearings or determinations to

justify continued detention.

The panel affirmed the district court’s permanent

injunction insofar as it required automatic bond hearings and

required Immigration Judges to consider alternatives to

detention. The panel also held that IJs must consider the

length of detention and provide bond hearings every six

months for class members detained longer than twelve

months, but rejected the class’s request for additional

procedural requirements.

The panel held that subclass members subject to

prolonged detention under mandatory detention statutes

§§ 1225(b) and 1226(c) are entitled to bond hearings, and that

subclass members subject to discretionary detention under

§ 1226(a) are entitled to automatic bond hearings after six

months of detention. In an issue this court had not previously

addressed, the panel held that the government must provide

periodic bond hearings every six months for non-citizens to

***

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 RODRIGUEZ V. ROBBINS

challenge their continued detention. The panel, however,

concluded that no certified class-member is within the

§ 1231(a) subclass, defined as non-citizens detained pending

completion of removal proceedings, and the panel therefore

reversed the summary judgment and permanent injunction as

to individuals detained under § 1231(a).

The panel remanded for the district court to enter a

revised injunction consistent with its instructions.

COUNSEL

Sarah Stevens Wilson (argued), Theodore William Atkinson,

Hans Harris Chen, Alisa Beth Klein, Robert I. Lester, Jaynie

R. Lilley, Benjamin C. Mizer, Nicole Prairie, and Erez

Reuveni, United States Department of Justice, Washington,

D.C., for Respondents-Appellants/Cross-Appellees.

Ahilan Thevanesan Arulanantham (argued), Michael

Kaufman (argued), Peter Jay Eliasberg, ACLU Foundation of

Southern California, Los Angeles, California; Judy

Rabinovitz, Michael K.T. Tan, ACLU Immigrants’ Rights

Project, New York, New York; Cecillia D. Wang, ACLU

Immigrants’ Rights Project, San Francisco, California;

Jayashri Srikantiah, Stanford Law School Mills Legal Clinic,

Stanford, California; Sean Ashley Commons, Wen Shen,

Sidley Austin LLP, Los Angeles, California; Steven Andrew

Ellis, Goodwin Procter LLP, Los Angeles, California, for

Petitioners-Appellees/Cross-Appellants.

Nina Rabin, University of Arizona College of Law, Tucson,

Arizona, for Amici Curiae Social Science Researchers and

Professors.

RODRIGUEZ V. ROBBINS 5

James H. Moon, James J. Farrell, Nathan M. Saper, Latham

& Watkins LLP, Los Angeles, California, for Amici Curiae

National Association of Criminal Defense Lawyers and the

Judge David L. Bazelon Center for Mental Health Law.

Sarah H. Paoletti, University of Pennsylvania Law School

Transnational Legal Clinic, Philadelphia, Pennsylvania, for

Amici Curiae International Law Professors and Human

Rights Clinicians and Clinical Programs.

Holly Stafford Cooper, University of California Davis Law

School Immigration Law Clinic, Davis, California, for

Amicus Curiae University of California Davis Law School

Immigration Law Clinic.

OPINION

WARDLAW, Circuit Judge:

This is the latest decision in our decade-long examination

of civil, i.e. non-punitive and merely preventative, detention

in the immigration context. As we noted in our prior decision

in this case, Rodriguez v. Robbins (Rodriguez II), 715 F.3d

1127 (9th Cir. 2013), thousands of immigrants to the United

States are locked up at any given time, awaiting the

conclusion of administrative and judicial proceedings that

will determine whether they may remain in this country. In

2014, U.S. Immigration and Customs Enforcement (“ICE”)

removed 315,943 individuals, many of whom were detained

6 RODRIGUEZ V. ROBBINS

during the removal process.1 According to the most recently

available statistics, ICE detains more than 429,000

individuals over the course of a year, with roughly 33,000

individuals in detention on any given day.2

Alejandro Rodriguez, Abdirizak Aden Farah, Jose Farias

Cornejo, Yussuf Abdikadir, Abel Perez Ruelas, and Efren

Orozco (“petitioners”) represent a certified class of non-

citizens who challenge their prolonged detention pursuant to

8 U.S.C. §§ 1225(b), 1226(a), 1226(c), and 1231(a) without

individualized bond hearings and determinations to justify

their continued detention. Their case is now on appeal for the

third time. After a three-judge panel of our court reversed the

district court’s denial of petitioners’ motion for class

certification, and after our decision affirming the district

court’s entry of a preliminary injunction, the district court

granted summary judgment to the class and entered a

permanent injunction. Under the permanent injunction, the

government must provide any class member who is subject to

“prolonged detention”—six months or more—with a bond

hearing before an Immigration Judge (“IJ”). At that hearing,

the government must prove by clear and convincing evidence

that the detainee is a flight risk or a danger to the community

to justify the denial of bond. The government appeals from

that judgment. We affirm in part and reverse in part.

1

U.S. Immigration and Customs Enforcement, Enforcement and

Removal Operations Report 7 (2014), https://www.ice.gov/doclib/

about/offices/ero/pdf/2014-ice-immigration-removals.pdf.

2

U.S. Immigration and Customs Enforcement, ERO Facts and

Statistics 3 (2011), http://www.ice.gov/doclib/foia/reports/ero-facts-and-

statistics.pdf.

RODRIGUEZ V. ROBBINS 7

I. Background

On May 16, 2007, Alejandro Garcia commenced this case

by filing a petition for a writ of habeas corpus in the Central

District of California. Garcia’s case was consolidated with a

similar case filed by Alejandro Rodriguez, and the petitioners

moved for class certification. The motion was denied on

March 21, 2008.

A three-judge panel of our court reversed the district

court’s order denying class certification.3 Rodriguez I,

591 F.3d 1105. We held that the proposed class satisfied

each requirement of Federal Rule of Civil Procedure 23: The

government conceded that the class was sufficiently

numerous; each class member’s claim turned on the common

question of whether detention for more than six months

without a bond hearing raises serious constitutional concerns;

Rodriguez’s claims were sufficiently typical of the class’s

because “the determination of whether [he] is entitled to a

bond hearing will rest largely on interpretation of the statute

authorizing his detention”; and Rodriguez, through his

counsel, adequately represented the class. Id. at 1122–25.

The panel also noted that “any concern that the differing

statutes authorizing detention of the various class members

will render class adjudication of class members’ claims

impractical or undermine effective representation of the

class” could be addressed through “the formation of

subclasses.” Id. at 1123.

3

Judge Betty Binns Fletcher was on the panel as originally constituted

and authored the opinion in Rodriguez v. Hayes (Rodriguez I), 578 F.3d

1032 (9th Cir. 2009), amended by 591 F.3d 1105 (9th Cir. 2010). Judge

Wardlaw was selected by random draw to replace Judge B. Fletcher on the

panel following her death in 2012.

8 RODRIGUEZ V. ROBBINS

The government petitioned our court for panel rehearing

or rehearing en banc. In response, the panel amended the

opinion to expand its explanation of why the Illegal

Immigration Reform and Immigrant Responsibility Act

(“IIRIRA”) does not bar certification of the class and, with

that amendment, unanimously voted to deny the

government’s petition. The full court was advised of the

suggestion for rehearing en banc, and no judge requested a

vote on whether to rehear the matter. See Fed. R. App. P. 35.

The government did not file a petition for certiorari in the

United States Supreme Court.

On remand, the district court certified a class defined as:

all non-citizens within the Central District of

California who: (1) are or were detained for

longer than six months pursuant to one of the

general immigration detention statutes

pending completion of removal proceedings,

including judicial review, (2) are not and have

not been detained pursuant to a national

security detention statute, and (3) have not

been afforded a hearing to determine whether

their detention is justified.

The district court also approved the proposed subclasses,

which correspond to the four statutes under which the class

members are detained—8 U.S.C. §§ 1225(b), 1226(a),

1226(c), and 1231(a). The class does not include suspected

terrorists, who are detained pursuant to 8 U.S.C. § 1537.

Additionally, because the class is defined as non-citizens who

are detained “pending completion of removal proceedings,”

it excludes any detainee subject to a final order of removal.

RODRIGUEZ V. ROBBINS 9

On September 13, 2012, the district court entered a

preliminary injunction that applied to class members detained

pursuant to two of these four “general immigration detention

statutes”—§§ 1225(b) and 1226(c). Under the preliminary

injunction, the government was required to “provide each

[detainee] with a bond hearing” before an IJ and to “release

each Subclass member on reasonable conditions of

supervision . . . unless the government shows by clear and

convincing evidence that continued detention is justified

based on his or her danger to the community or risk of flight.”

The government appealed, and on April 16, 2013, we

affirmed. See Rodriguez II, 715 F.3d 1127. We applied the

Court’s preliminary injunction standard set forth in Winter v.

Natural Resources Defense Council, Inc., 555 U.S. 7 (2008),

which requires the petitioner to “establish that he is likely to

succeed on the merits, that he is likely to suffer irreparable

harm in the absence of preliminary relief, that the balance of

equities tips in his favor, and that an injunction is in the

public interest.” Rodriguez II, 715 F.3d at 1133.

Evaluating petitioners’ likelihood of success on the

merits, we began with the premise that “[f]reedom from

imprisonment—from government custody, detention, or other

forms of physical restraint—lies at the heart of the liberty that

[the Due Process] Clause protects.” Id. at 1134 (alterations

in original) (quoting Zadvydas v. Davis, 533 U.S. 678, 690

(2001)). “Thus, the Supreme Court has held that the

indefinite detention of a once-admitted alien ‘would raise

serious constitutional concerns.’” Id. (quoting Zadvydas,

533 U.S. at 682).

Addressing those concerns, we recognized that we were

not writing on a clean slate: “[I]n a series of decisions since

10 RODRIGUEZ V. ROBBINS

2001, ‘the Supreme Court and this court have grappled in

piece-meal fashion with whether the various immigration

detention statutes may authorize indefinite or prolonged

detention of detainees and, if so, may do so without providing

a bond hearing.’” Id. (quoting Rodriguez I, 591 F.3d at

1114). First, in Zadvydas v. Davis, 533 U.S. 678 (2001), the

Supreme Court resolved statutory and due process challenges

to indefinite detention under 8 U.S.C. § 1231(a)(6), which

governs detention beyond the ninety-day removal period,

where removal was not practicable—for one petitioner

because he was stateless, and for another because his home

country had no repatriation treaty with the United States. See

id. at 684–86. Drawing on civil commitment jurisprudence,

the Court reasoned:

A statute permitting indefinite detention of an

alien would raise a serious constitutional

problem. The Fifth Amendment’s Due

Process Clause forbids the Government to

“depriv[e]” any “person . . . of . . . liberty . . .

without due process of law.” Freedom from

imprisonment—from government custody,

detention, or other forms of physical

restraint—lies at the heart of the liberty that

Clause protects. See Foucha v. Louisiana,

504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d

437 (1992). And this Court has said that

government detention violates that Clause

unless the detention is ordered in a criminal

proceeding with adequate procedural

protections, see United States v. Salerno,

481 U.S. 739, 746, 107 S.Ct. 2095, 95

L.Ed.2d 697 (1987), or, in certain special and

“narrow” nonpunitive “circumstances,”

RODRIGUEZ V. ROBBINS 11

Foucha, supra, at 80, 112 S.Ct. 1780, where

a special justification, such as harm-

threatening mental illness, outweighs the

“individual’s constitutionally protected

interest in avoiding physical restraint.”

Kansas v. Hendricks, 521 U.S. 346, 356,

117 S.Ct. 2072, 138 L.Ed.2d 501 (1997).

Id. at 690 (alterations in original). To avoid those “serious

constitutional concerns,” the Court held that § 1231(a)(6)

does not authorize indefinite detention without a bond

hearing. Id. at 682, 699. Noting that the “proceedings at

issue here are civil, not criminal,” id. at 690, the Court

“construe[d] the statute to contain an implicit ‘reasonable

time’ limitation,” id. at 682, and recognized six months as a

“presumptively reasonable period of detention,” id. at 701.

Although in dissent, Justice Kennedy, joined by Chief

Justice Rehnquist, disagreed with the majority’s application

of the canon of constitutional avoidance and argued that the

holding would improperly interfere with international

repatriation negotiations, Justice Kennedy recognized that

“both removable and inadmissible aliens are entitled to be

free from detention that is arbitrary or capricious.” Id. at 721.

Justice Kennedy further noted that although the government

may detain non-citizens “when necessary to avoid the risk of

flight or danger to the community,” due process requires

“adequate procedures to review their cases, allowing persons

once subject to detention to show that through rehabilitation,

new appreciation of their responsibilities, or under other

standards, they no longer present special risks or danger if put

at large.” Id.

12 RODRIGUEZ V. ROBBINS

Second, in Demore v. Kim, 538 U.S. 510 (2003), the

Court addressed a due process challenge to mandatory

detention under 8 U.S.C. § 1226(c), which applies to non-

citizens convicted of certain crimes. Id. at 517–18. After

discussing Congress’s reasons for establishing mandatory

detention, namely, high rates of crime and flight by

removable non-citizens, id. at 518–21, the Court affirmed its

“longstanding view that the Government may constitutionally

detain deportable aliens during the limited period necessary

for their removal proceedings,” id. at 526. Distinguishing

Zadvydas, the Court in Demore stressed that detention under

§ 1226(c) has “a definite termination point” and typically

“lasts for less than the 90 days we considered presumptively

valid in Zadvydas.” Id. at 529. Although the Court therefore

upheld mandatory detention under § 1226(c), Justice

Kennedy’s concurring opinion, which created the majority,

reasoned that “a lawful permanent resident alien such as

respondent could be entitled to an individualized

determination as to his risk of flight and dangerousness if the

continued detention became unreasonable or unjustified.” Id.

at 532.

After Zadvydas and Demore, our court decided several

cases that provided further guidance for our analysis in

Rodriguez II. In Tijani v. Willis, 430 F.3d 1241 (9th Cir.

2005), we held that the constitutionality of detaining a lawful

permanent resident under § 1226(c) for over 32 months was

“doubtful.” Id. at 1242. “To avoid deciding the

constitutional issue, we interpret[ed] the authority conferred

by § 1226(c) as applying to expedited removal of criminal

aliens” and held that “[t]wo years and eight months of process

is not expeditious.” Id. We therefore remanded Tijani’s

habeas petition to the district court with directions to grant

RODRIGUEZ V. ROBBINS 13

the writ unless the government provided a bond hearing

before an IJ within sixty days. Id.

We next considered civil detention in the immigration

context in Casas-Castrillon v. Department of Homeland

Security (Casas), 535 F.3d 942 (9th Cir. 2008). There, a

lawful permanent resident who had been detained for nearly

seven years under § 1226(c) and then § 1226(a) sought

habeas relief while his petition for review of his removal

order was pending before our court. Id. at 944–48. Applying

Demore, we reasoned that § 1226(c) “authorize[s] mandatory

detention only for the ‘limited period of [the non-citizen’s]

removal proceedings,’ which the Court estimated ‘lasts

roughly a month and a half in the vast majority of cases in

which it is invoked, and about five months in the minority of

cases in which the alien chooses to appeal’ his removal order

to the [Board of Immigration Appeals (“BIA”)].” Id. at 950

(quoting Demore, 538 U.S. at 529). We therefore concluded

that § 1226(c)’s mandatory detention provision applies only

during administrative removal proceedings—i.e. until the

BIA affirms a removal order. Id. at 951. From that point

until the circuit court has “rejected [the applicant’s] final

petition for review or his time to seek such review expires,”

the government has discretionary authority to detain the non-

citizen pursuant to § 1226(a). Id. at 948. We noted, however,

that “[t]here is a difference between detention being

authorized and being necessary as to any particular person.”

Id. at 949. Because the Court’s holding in Demore turned on

the brevity of mandatory detention under § 1226(c), we

concluded that “the government may not detain a legal

permanent resident such as Casas for a prolonged period

without providing him a neutral forum in which to contest the

necessity of his continued detention.” Id. at 949.

14 RODRIGUEZ V. ROBBINS

Soon after, in Singh v. Holder, 638 F.3d 1196 (9th Cir.

2011), we clarified the procedural requirements for bond

hearings held pursuant to our decision in Casas (“Casas

hearings”). In light of “the substantial liberty interest at

stake,” we held that “due process requires a contemporaneous

record of Casas hearings,” and that the government bears the

burden of proving “by clear and convincing evidence that an

alien is a flight risk or a danger to the community to justify

denial of bond.” Id. at 1203, 1208. To evaluate whether the

government has met its burden, we instructed IJs to consider

the factors set forth in In re Guerra, 24 I. & N. Dec. 37 (BIA

2006), in particular “the alien’s criminal record, including the

extensiveness of criminal activity, the recency of such

activity, and the seriousness of the offenses.” Singh, 638 F.3d

at 1206 (quoting Guerra, 24 I. & N. Dec. at 40).

Finally, in Diouf v. Napolitano (Diouf II), 634 F.3d 1081

(9th Cir. 2011), we extended the procedural protections

established in Casas to individuals detained under

§ 1231(a)(6). Id. at 1086. We held that “prolonged detention

under § 1231(a)(6), without adequate procedural protections,”

like prolonged detention under § 1226(a), “would raise

‘serious constitutional concerns.’” Id. (quoting Casas,

535 F.3d at 950). To address those concerns, we held that

“an alien facing prolonged detention under § 1231(a)(6) is

entitled to a bond hearing before an immigration judge and is

entitled to be released from detention unless the government

establishes that the alien poses a risk of flight or a danger to

the community.” Id. at 1092.

In Diouf II, we also adopted a definition of “prolonged”

detention—detention that “has lasted six months and is

expected to continue more than minimally beyond six

RODRIGUEZ V. ROBBINS 15

months”—for purposes of administering the Casas bond

hearing requirement. Id. at 1092 n.13. We reasoned that:

When detention crosses the six-month

threshold and release or removal is not

imminent, the private interests at stake are

profound. Furthermore, the risk of an

erroneous deprivation of liberty in the absence

of a hearing before a neutral decisionmaker is

substantial. The burden imposed on the

government by requiring hearings before an

immigration judge at this stage of the

proceedings is therefore a reasonable one.

Id. at 1091–92.

Applying these precedents to Rodriguez class members

detained under § 1226(c), which requires civil detention of

non-citizens previously convicted of certain crimes who have

already served their state or federal periods of incarceration,

we have concluded that “the prolonged detention of an alien

without an individualized determination of his dangerousness

or flight risk would be constitutionally doubtful.” Rodriguez

II, 715 F.3d at 1137 (quoting Casas, 535 F.3d at 951). To

avoid these constitutional concerns, we held that “§ 1226(c)’s

mandatory language must be construed ‘to contain an implicit

reasonable time limitation, the application of which is subject

to federal-court review.’” Id. at 1138 (quoting Zadvydas,

533 U.S. at 682). “[W]hen detention becomes prolonged,”

i.e., at the six-month mark, Ҥ 1226(c) becomes

inapplicable”; the government’s authority to detain the non-

citizen shifts to § 1226(a), which provides for discretionary

detention; and detainees are then entitled to bond hearings.

Id.

16 RODRIGUEZ V. ROBBINS

In so holding, we rejected the government’s attempt to

distinguish Casas on the basis that “Casas concerned an alien

who had received an administratively final removal order,

sought judicial review, and obtained a remand to the BIA,”

whereas this case involves “aliens awaiting the conclusion of

their initial administrative proceedings.” Id. at 1139. We

found that this argument reflected “a distinction without a

difference”: “‘Regardless of the stage of the proceedings, the

same important interest is at stake—freedom from prolonged

detention.’” Id. (quoting Diouf II, 634 F.3d at 1087).

We also noted that our conclusion was consistent with the

decisions of the two other circuits that have directly

addressed this issue. In Diop v. ICE/Homeland Security,

656 F.3d 221 (3d Cir. 2011), the Third Circuit, applying the

canon of constitutional avoidance, construed § 1226(c)

to“authorize[] detention for a reasonable amount of time,

after which the authorities must make an individualized

inquiry into whether detention is still necessary to fulfill the

statute’s purposes of ensuring that an alien attends removal

proceedings and that his release will not pose a danger to the

community.” Id. at 231. Applying that holding to the facts

of the case, the Third Circuit held that the petitioner’s

detention, which had lasted nearly three years, “was

unconstitutionally unreasonable and, therefore, a violation of

the Due Process Clause.” Id. at 233. Although the court

declined to adopt a categorical definition of a “reasonable

amount of time” to detain a non-citizen without a bond

hearing, it read Demore as we do—to connect the

constitutionality of detention to its length and to authorize

detention only for a “limited time.” Id. at 233–34.

Likewise, in Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003),

the Sixth Circuit held that, to avoid a constitutional problem,

RODRIGUEZ V. ROBBINS 17

removable non-citizens may be detained under § 1226(c) only

“for a reasonable period of time required to initiate and

conclude removal proceedings promptly.” Id. at 273.

Finding that the petitioner’s 500-day-long detention was

“unreasonable,” the Sixth Circuit affirmed the district court’s

grant of a writ of habeas corpus. Id. at 265, 271. While

maintaining that a “bright-line time limitation, as imposed in

Zadvydas, would not be appropriate for the pre-removal

period,” the court recognized that Demore’s holding “rel[ies]

on the fact that Kim, and persons like him, will normally have

their proceedings completed within a short period of time and

will actually be deported, or will be released.” Id. at 271.

As to the Rodriguez subclass detained under § 1225(b),

we found “no basis for distinguishing between” non-citizens

detained under that section and under § 1226(c). Rodriguez

II, 715 F.3d at 1143. The cases relied upon by the

government for the proposition that arriving aliens are

entitled to lesser due process protections—namely,

Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206

(1953) and Barrera–Echavarria v. Rison, 44 F.3d 1441 (9th

Cir. 1995) (en banc)—were decided under pre-IIRIRA law

and, as such, were inapposite. Id. at 1140–41. We therefore

held that “to the extent detention under § 1225(b) is

mandatory, it is implicitly time-limited.” Id. at 1144. As we

had with § 1226(c), we explained that “the government’s

detention authority does not completely dissipate at six

months; rather, the mandatory provisions of § 1225(b) simply

expire at six months, at which point the government’s

authority to detain the non-citizen would shift to § 1226(a),

which is discretionary and which we have already held

requires a bond hearing.” Id. (citing Casas, 535 F.3d at 948).

18 RODRIGUEZ V. ROBBINS

After establishing that class members detained under

§ 1226(c) and § 1225(b) are entitled to bond hearings after six

months of detention, we clarified that the procedural

requirements set forth in Singh apply to those hearings. Id. at

1139, 1144 (citing Singh, 638 F.3d at 1203). These

requirements include proceedings before “a neutral IJ” at

which “the government bear[s] the burden of proof by clear

and convincing evidence,” id. at 1144 (citing Singh, 638 F.3d

at 1203–04), a lower burden of proof than that required to

sustain a criminal charge.

Having found that the class was likely to succeed on the

merits, we turned to the other preliminary injunction factors.

We found that the class members “clearly face irreparable

harm in the absence of the preliminary injunction” because

“the deprivation of constitutional rights unquestionably

constitutes irreparable injury.” Id. (citations omitted). The

preliminary injunction safeguards constitutional rights by

ensuring that “individuals whom the government cannot

prove constitute a flight risk or a danger to public safety, and

sometimes will not succeed in removing at all, are not

needlessly detained.” Id. at 1145. Similarly, we found that

the balance of equities favored the class members because

“needless prolonged detention” imposes “major hardship,”

whereas the government “cannot suffer harm from an

injunction that merely ends an unlawful practice or reads a

statute as required to avoid constitutional concerns.” Id.

Finally, we held that the preliminary injunction was

consistent with the public interest, which is “implicated when

a constitutional right has been violated,” and “benefits from

a preliminary injunction that ensures that federal statutes are

construed and implemented in a manner that avoids serious

constitutional questions.” Id. at 1146. We therefore affirmed

the district court’s order.

RODRIGUEZ V. ROBBINS 19

During the pendency of Rodriguez II, the parties

conducted discovery, and class counsel adduced extensive

evidence detailing the circumstances under which class

members are detained. The parties then filed cross-motions

for summary judgment, and the petitioners moved for a

permanent injunction to extend and expand the preliminary

injunction.

On August 6, 2013, after we issued our decision in

Rodriguez II, the district court granted summary judgment to

the class members and entered a permanent injunction. The

permanent injunction applies to class members detained

under any of the four civil “general immigration detention

statutes”—§§ 1225(b), 1226(a), 1226(c), and 1231(a)—and

requires the government to provide each detainee with a bond

hearing by his 195th day of detention. Applying our

decisions in Casas, Singh, and Rodriguez II, the district court

further ordered that bond hearings occur automatically, that

detainees receive “comprehendible notice,” that the

government bear the burden of proving “by clear and

convincing evidence that a detainee is a flight risk or a danger

to the community to justify the denial of bond,” and that

hearings are recorded. However, the district court declined

to order IJs to consider the length of detention or the

likelihood of removal during bond hearings, or to provide

periodic hearings for detainees who are not released after

their first hearing.

The government now appeals from the entry of the

permanent injunction, arguing that the district court—and

we—erred in applying the canon of constitutional avoidance

to each of the statutes at issue. Relying on the Supreme

Court’s decisions in Zadvydas and Demore, the government

argues that none of the subclasses are categorically entitled to

20 RODRIGUEZ V. ROBBINS

bond hearings after six months of detention. Accordingly, the

government contends that we should decertify the class and

instead permit as-applied challenges to individual instances

of prolonged detention, which could occur only through

habeas proceedings. Petitioners counter that Rodriguez II is

the law of the case and law of the circuit, requiring us to

affirm the permanent injunction as to the § 1225(b) and

§ 1226(c) subclasses, and that non-citizens detained pursuant

to § 1226(a) and § 1231(a) are entitled to bond hearings for

reasons similar to those discussed in Rodriguez II. Petitioners

cross-appeal the district court’s order as to the procedural

requirements for bond hearings; they argue that the district

court erred in declining to require that IJs consider the

likelihood of removal and the total length of detention, and in

declining to require that non-citizens detained for twelve or

more months receive periodic bond hearings every six

months.

II. Nature of Civil Immigration Detention

Class members spend, on average, 404 days in

immigration detention. Nearly half are detained for more

than one year, one in five for more than eighteen months, and

one in ten for more than two years. In some cases, detention

has lasted much longer: As of April 28, 2012, when the

government generated data to produce to the petitioners, one

class member had been detained for 1,585 days, approaching

four and a half years of civil confinement.4

4

The government challenges the accuracy of these figures, which are

drawn from petitioners’ expert report, based on disagreements with that

expert’s methodology. Using the government’s preferred data set and

process generates an average detention length of 347 days and a range of

180 to 1,037 days of civil detention for each non-citizen. Under either set

RODRIGUEZ V. ROBBINS 21

Non-citizens who vigorously pursue claims for relief from

removal face substantially longer detention periods than those

who concede removability. Requesting relief from an IJ

increases the duration of class members’ detention by an

average of two months; appealing a claim to the BIA adds, on

average, another four months; and appealing a BIA decision

to the Ninth Circuit typically leads to an additional eleven

months of confinement. Class members who persevere

through this lengthy process are often successful: About 71%

of class members have sought relief from removal, and

roughly one-third of those individuals prevailed. However,

many detainees choose to give up meritorious claims and

voluntarily leave the country instead of enduring years of

immigration detention awaiting a judicial finding of their

lawful status.

Class members frequently have strong ties to this country:

Many immigrated to the United States as children, obtained

legal permanent resident status, and lived in this country for

as long as twenty years before ICE initiated removal

proceedings. As a result, hundreds of class members are

married to U.S. citizens or lawful permanent residents, and

have children who were born in this country. Further, many

class members hold steady jobs—including as electricians,

auto mechanics, and roofers—to provide for themselves and

their families. At home, they are caregivers for young

children, aging parents, and sick or disabled relatives. To the

extent class members have any criminal record—and many

have no criminal history whatsoever—it is often limited to

minor controlled substances offenses. Accordingly, when

class members do receive bond hearings, they often produce

of figures, typical class members are detained for well over 180 days. The

differences in precise numbers are not material to our decision.

22 RODRIGUEZ V. ROBBINS

glowing letters of support from relatives, friends, employers,

and clergy attesting to their character and contributions to

their communities.

Prolonged detention imposes severe hardship on class

members and their families. Civil immigration detainees are

treated much like criminals serving time: They are typically

housed in shared jail cells with no privacy and limited access

to larger spaces or the outdoors. Confinement makes it more

difficult to retain or meet with legal counsel, and the

resources in detention facility law libraries are minimal at

best, thereby compounding the challenges of navigating the

complexities of immigration law and proceedings. In

addition, visitation is restricted and is often no-contact,

dramatically disrupting family relationships. While in

detention, class members have missed their children’s births

and their parents’ funerals. After losing a vital source of

income, class members’ spouses have sought government

assistance, and their children have dropped out of college.

Lead petitioner Alejandro Rodriguez’s story is

illustrative. Rodriguez came to the United States as an infant

and has lived here continuously since then. Rodriguez is a

lawful permanent resident of the United States, and his entire

immediate family—including his parents, siblings, and three

young children—also resides in the United States as citizens

or lawful permanent residents. Before his removal

proceedings began, Rodriguez worked as a dental assistant.

In 2003, however, Rodriguez was convicted of possession of

a controlled substance and sentenced to five years of

probation and no jail time. He had one previous conviction,

for “joyriding.”

RODRIGUEZ V. ROBBINS 23

In 2004, ICE commenced removal proceedings and

subjected Rodriguez to civil detention. An IJ determined that

Rodriguez’s prior conviction for “joyriding,” i.e. driving a

stolen vehicle, qualified as an “aggravated felony” that

rendered him ineligible for relief in the form of cancellation

of removal, and therefore ordered him removed. Rodriguez

appealed the IJ’s decision to the BIA, which affirmed, and

then to the Ninth Circuit. In July 2005, a three-judge panel of

our court granted the government’s motion to hold

Rodriguez’s case in abeyance until the Supreme Court

decided a related case, Gonzales v. Penuliar, 549 U.S. 1178

(2007), which issued eighteen months later, in January 2007.

In Penuliar, the Supreme Court vacated our court’s opinion

and remanded for further consideration in light of Gonzales

v. Duenas-Alvarez, 549 U.S. 183 (2007), which held that

violating a California statute prohibiting taking a vehicle

without the owner’s consent qualifies as a “theft offense.”

Between July 2005 and January 2007, while Rodriguez’s case

was in abeyance, ICE conducted four custody reviews on

Rodriguez and repeatedly determined that Rodriguez was

required to remain in detention until our court issued a

decision on the merits of his claim. In mid-2007, about a

month after Rodriguez had moved for class certification,

however, ICE released him. At that point, Rodriguez had

been detained for 1,189 days, roughly three years and three

months. In April 2008, in the related case on remand from

the Supreme Court, our court held that driving a stolen

vehicle did not qualify as an aggravated felony. Penuliar v.

Mukasey, 528 F.3d 603, 614 (9th Cir. 2008). On motion of

the parties, we then remanded Rodriguez’s petition to the

BIA, which granted his application for cancellation of

removal, vindicating his right to lawfully remain in the

United States.

24 RODRIGUEZ V. ROBBINS

III. Standard of Review

“We review a grant of summary judgment de novo.”

Pavoni v. Chrysler Grp., LLC, 789 F.3d 1095, 1098 (9th Cir.

2015). “A permanent injunction ‘involves factual, legal, and

discretionary components,’ so we ‘review a decision to grant

such relief under several different standards.’” Vietnam

Veterans of Am. v. C.I.A., 791 F.3d 1122, 1129 (9th Cir.

2015) (quoting Momot v. Mastro, 652 F.3d 982, 986 (9th Cir.

2011)). “We review legal conclusions . . . de novo, factual

findings for clear error, and the scope of the injunction for

abuse of discretion.” Id.

IV. Discussion

In resolving whether the district court erred in entering

the permanent injunction, we consider, first, petitioners’

entitlement to bond hearings and, second, the procedural

requirements for such hearings. Based on our precedents, we

hold that the canon of constitutional avoidance requires us to

construe the statutory scheme to provide all class members

who are in prolonged detention with bond hearings at which

the government bears the burden of proving by clear and

convincing evidence that the class member is a danger to the

community or a flight risk. However, we also conclude that

individuals detained under § 1231(a) are not members of the

certified class. We affirm the district court’s order insofar as

it requires automatic bond hearings and requires IJs to

consider alternatives to detention because we presume, like

the district court, that IJs are already doing so when

RODRIGUEZ V. ROBBINS 25

determining whether to release a non-citizen on bond.5

Because the same constitutional concerns arise when

detention approaches another prolonged period, we hold that

IJs must provide bond hearings periodically at six month

intervals for class members detained for more than twelve

months. However, we reject the class’s suggestion that we

mandate additional procedural requirements.

A. Civil Detention

“In our society liberty is the norm, and detention prior to

trial or without trial is the carefully limited exception.”

United States v. Salerno, 481 U.S. 739, 755 (1987). Civil

detention violates the Due Process Clause except “in certain

special and narrow nonpunitive circumstances, where a

special justification, such as harm-threatening mental illness,

outweighs the individual’s constitutionally protected interest

in avoiding physical restraint.” Zadvydas, 533 U.S. at 690

(citations omitted). Consistent with these principles, the

Supreme Court has—outside of the immigration

context—found civil detention constitutional without any

individualized showing of need only when faced with the

unique exigencies of global war or domestic insurrection. See

Ludecke v. Watkins, 335 U.S. 160 (1948); Korematsu v.

5

See 8 C.F.R. § 241.4(f) (listing factors that Department of Homeland

Security (“DHS”) must “weigh[] in considering whether to recommend

further detention or release of a detainee,” including the detainee’s

criminal history, evidence of recidivism or rehabilitation, ties to the United

States, history of absconding or failing to appear for immigration or other

proceedings, and the likelihood that the detainee will violate the

conditions of release); id. § 1236.1(d)(1) (authorizing IJs to “detain the

alien in custody, release the alien, and determine the amount of bond, if

any, under which the respondent may be released” and to “ameliorat[e] the

conditions” of release imposed by DHS).

26 RODRIGUEZ V. ROBBINS

United States, 323 U.S. 214 (1944); Moyer v. Peabody,

212 U.S. 78 (1909).6 And even in those extreme

circumstances, the Court’s decisions have been widely

criticized. See, e.g., Eugene V. Rostow, The Japanese

American Cases—A Disaster, 54 Yale L.J. 489 (1945). In all

contexts apart from immigration and military detention, the

Court has found that the Constitution requires some

individualized process and a judicial or administrative finding

that a legitimate governmental interest justifies detention of

the person in question.

For example, in numerous cases addressing the civil

detention of mentally ill persons, the Court has consistently

recognized that such commitment “constitutes a significant

deprivation of liberty,” and so the state “must have a

constitutionally adequate purpose for the confinement.”

Jones v. United States, 463 U.S. 354, 361 (1983) (citations

omitted). Further, the “nature and duration of commitment”

must “bear some reasonable relation to the purpose for which

the individual is committed.” Jones, 463 U.S. at 368 (citation

omitted).

Accordingly, the state may detain a criminal defendant

found incapable of standing trial, but only for “the reasonable

period of time necessary to determine whether there is a

substantial probability that he will attain [the] capacity [to

stand trial] in the foreseeable future.” Jackson v. Indiana,

6

For a thorough discussion of civil detention jurisprudence and its

bearing on the constitutionality of civil detention in the immigration

context, see Farrin R. Anello, Due Process and Temporal Limits on

Mandatory Immigration Detention, 65 Hastings L.J. 363 (2014), and

David Cole, In Aid of Removal: Due Process Limits on Immigration

Detention, 51 Emory L.J. 1003 (2002).

RODRIGUEZ V. ROBBINS 27

406 U.S. 715, 738 (1972). At all times, the individual’s

“commitment must be justified by progress toward that goal.”

Id. Likewise, the state may detain a criminal defendant

following an acquittal by reason of insanity in order to “treat

the individual’s mental illness and protect him and society

from his potential dangerousness.” Jones, 463 U.S. at 368.

However, the detainee “is entitled to release when he has

recovered his sanity or is no longer dangerous.” Id.; see also

Foucha v. Louisiana, 504 U.S. 71, 78 (1992) (“[K]eeping

Foucha against his will in a mental institution is improper

absent a determination in civil commitment proceedings of

current mental illness and dangerousness.”). Further,

although the state may detain sexually dangerous individuals

even after they have completed their criminal sentences, such

confinement must “take[] place pursuant to proper procedures

and evidentiary standards.” Kansas v. Hendricks, 521 U.S.

346, 357 (1997). To “justify indefinite involuntary

commitment,” the state must prove both “dangerousness” and

“some additional factor, such as a ‘mental illness’ or ‘mental

abnormality.’” Id. at 358 (collecting cases).

Similarly, the Court has held that pretrial detention of

individuals charged with “the most serious of crimes” is

constitutional only because, under the Bail Reform Act, an

“arrestee is entitled to a prompt detention hearing” to

determine whether his confinement is necessary to prevent

danger to the community. Salerno, 481 U.S. at 747. Further,

“the maximum length of pretrial detention is limited by the

stringent time limitations of the Speedy Trial Act.” Id.; see

also Schall v. Martin, 467 U.S. 253, 263 (1984) (upholding a

statute that “permits a brief pretrial detention based on a

finding of a ‘serious risk’ that an arrested juvenile may

commit a crime before his return date”).

28 RODRIGUEZ V. ROBBINS

In addition, the Court has held that incarceration of

individuals held in civil contempt is consistent with due

process only where the contemnor receives adequate

procedural protections and the court makes specific findings

as to the individual’s ability to comply with the court order.

See Turner v. Rogers, 131 S. Ct. 2507, 2520 (2011). If

compliance is impossible—for instance, if the individual

lacks the financial resources to pay court-ordered child

support—then contempt sanctions do not serve their purpose

of coercing compliance and therefore violate the Due Process

Clause. See id.

Early cases upholding immigration detention policies

were a product of their time. See Carlson v. Landon,

342 U.S. 524 (1952) (McCarthy Era deportation of

communists); Ludecke v. Watkins, 335 U.S. 160 (1948)

(removal of German enemy aliens during World War II);

Wong Wing v. United States, 163 U.S. 228 (1896) (Chinese

exclusion). Yet even these cases recognized some limits on

detention of non-citizens pending removal. Such detention

may not be punitive—Congress may not, for example, impose

sentences of “imprisonment at hard labor” on non-citizens

awaiting deportation, Wong Wing, 163 U.S. at 235—and it

must be supported by a legitimate regulatory purpose. Under

these principles, the Court authorized the “detention or

temporary confinement” of Chinese-born non-citizens

“pending the inquiry into their true character, and while

arrangements were being made for their deportation.” Id.

The Court also upheld executive detention of enemy aliens

after the cessation of active hostilities because deportation is

“hardly practicable” in the midst of war, and enemy aliens’

“potency for mischief” continues “even when the guns are

silent.” Ludecke, 335 U.S. at 166. Similarly, the Court

approved detention of communists to limit their

RODRIGUEZ V. ROBBINS 29

“opportunities to hurt the United States during the pendency

of deportation proceedings.” Carlson, 342 U.S. at 538. The

Court recognized, however, that “purpose to injure could not

be imputed generally to all aliens subject to deportation.” Id.

at 538. Rather, if the Attorney General wished to exercise his

discretion to deny bail, he was required to do so at a hearing,

the results of which were subject to judicial review. Id. at

543.

More recently, the Supreme Court has drawn on decades

of civil detention jurisprudence to hold that “[a] statute

permitting indefinite detention of an alien would raise a

serious constitutional problem.” Zadvydas, 533 U.S. at 690.

Although the state has legitimate interests in “ensuring the

appearance of aliens at future immigration proceedings” and

“protecting the community,” post–removal period detention

does not uniformly “‘bear[] [a] reasonable relation to the

purpose for which the individual [was] committed.’” Id.

(second and third alterations in original) (quoting Jackson,

406 U.S. at 738). To avoid constitutional concerns, the Court

construed 8 U.S.C. § 1231(a)(6), the statute governing

post–removal period detention, to “limit[] an alien’s

post-removal-period detention to a period reasonably

necessary to bring about that alien’s removal from the United

States.” Id. at 689. Detention beyond that point requires

“strong procedural protections” and a finding that the non-

citizen is “specially dangerous.” Id. at 691.

Soon after Zadvydas, the Court rejected a due process

challenge to mandatory detention under 8 U.S.C. § 1226(c),

which applies to non-citizens convicted of certain crimes.

Demore, 538 U.S. at 517–18. While affirming its

“longstanding view that the Government may constitutionally

detain deportable aliens during the limited period necessary

30 RODRIGUEZ V. ROBBINS

for their removal proceedings,” id. at 526, the Court

emphasized that detention under § 1226(c) was

constitutionally permissible because it has “a definite

termination point” and typically “lasts for less than . . . 90

days,” id. at 529.

Since Zadvydas and Demore, our court has “grappled in

piece-meal fashion with whether the various immigration

detention statutes may authorize indefinite or prolonged

detention of detainees and, if so, may do so without providing

a bond hearing.” Rodriguez II, 715 F.3d at 1134 (quoting

Rodriguez I, 591 F.3d at 1114). As we recognized in Casas,

“prolonged detention without adequate procedural protections

would raise serious constitutional concerns.” Casas,

535 F.3d at 950; see also Rodriguez II, 715 F.3d at 1144

(discussing “the constitutional concerns raised by prolonged

mandatory detention”); Singh, 638 F.3d at 1208 (“The private

interest here—freedom from prolonged detention—is

unquestionably substantial.”); Diouf II, 634 F.3d at 1085

(“When the period of detention becomes prolonged, ‘the

private interest that will be affected by the official action’ is

more substantial; greater procedural safeguards are therefore

required.”) (quoting Mathews v. Eldridge, 424 U.S. 319, 335

(1976)). We have therefore held that non-citizens detained

pursuant to § 1226(a) and § 1231(a)(6) are entitled to bond

hearings before an IJ when detention becomes prolonged.

See Casas, 535 F.3d at 949 (requiring bond hearings for

individuals detained under § 1226(a)); Diouf II, 634 F.3d at

1084 (extending Casas to individuals detained under

§ 1231(a)(6)).

While the government falsely equates the bond hearing

requirement to mandated release from detention or facial

invalidation of a general detention statute, our precedents

RODRIGUEZ V. ROBBINS 31

make clear that there is a distinction “between detention

being authorized and being necessary as to any particular

person.” Casas, 535 F.3d at 949. Bond hearings do not

restrict the government’s legitimate authority to detain

inadmissible or deportable non-citizens; rather, they merely

require the government to “justify denial of bond” with clear

and convincing “evidence that an alien is a flight risk or

danger to the community.” Singh, 638 F.3d at 1203. And, in

the end, the government is required only to establish that it

has a legitimate interest reasonably related to continued

detention; the discretion to release a non-citizen on bond or

other conditions remains soundly in the judgment of the

immigration judges the Department of Justice employs.

Prior decisions have also clarified that detention becomes

“prolonged” at the six-month mark. In Zadvydas, the

Supreme Court recognized six months as a “presumptively

reasonable period of detention.” 533 U.S. at 701. By way of

background, the Court noted that in 1996, Congress had

“shorten[ed] the removal period from six months to 90 days.”

Id. at 698. The Court then explained:

While an argument can be made for confining

any presumption to 90 days, we doubt that

when Congress shortened the removal period

to 90 days in 1996 it believed that all

reasonably foreseeable removals could be

accomplished in that time. We do have

reason to believe, however, that Congress

previously doubted the constitutionality of

detention for more than six months.

Consequently, for the sake of uniform

administration in the federal courts, we

recognize that period.

32 RODRIGUEZ V. ROBBINS

Id. at 701 (citation omitted); see also Clark v. Martinez,

543 U.S. 371, 386 (2005) (applying “the 6–month

presumptive detention period” the Supreme Court “prescribed

in Zadvydas”); cf. Nadarajah v. Gonzales, 443 F.3d 1069,

1078–79 (9th Cir. 2006) (discussing the Patriot Act’s

requirement that “detention of suspected terrorists or other

threats to national security” be reviewed “at six month

intervals”). Following Zadvydas, we have defined detention

as “prolonged” when “it has lasted six months and is expected

to continue more than minimally beyond six months.” Diouf

II, 634 F.3d at 1092 n.13.7 At that point, we have explained,

“the private interests at stake are profound,” and “the risk of

an erroneous deprivation of liberty in the absence of a hearing

before a neutral decisionmaker is substantial.” Id. at 1092.

B. Entitlement to a Bond Hearing

With this well-established precedent of the Supreme

Court and our Court in mind, we review the district court’s

grant of summary judgment and entry of a permanent

injunction. We consider, in turn, whether individuals

detained under §§ 1226(c), 1225(b), 1226(a), and 1231(a) are

entitled to bond hearings after they have been detained for six

months.

1. The § 1226(c) Subclass

Section 1226(c) requires that the Attorney General detain

any non-citizen who is inadmissible or deportable because of

7

As we noted in Rodriguez II, this holding does not conflict with the

Supreme Court’s decision in Demore, 538 U.S. 510, which approved only

“brief period[s]” of detention without individualized determinations as to

dangerousness and flight risk. Demore, 538 U.S. at 513, 523.

RODRIGUEZ V. ROBBINS 33

his criminal history upon that person’s release from

imprisonment, pending proceedings to remove him from the

United States.8 Detention under § 1226(c) is mandatory.

Individuals detained under that section are not eligible for

release on bond or parole, see 8 U.S.C. § 1226(a); they may

be released only if the Attorney General deems it “necessary”

for witness protection purposes, id. § 1226(c)(2).

An individual detained under § 1226(c) may ask an IJ to

reconsider whether the mandatory detention provision applies

to him, see 8 C.F.R. § 1003.19(h)(2)(ii), but such review is

limited in scope and addresses only whether the individual is

properly included in a category of non-citizens subject to

mandatory detention based on his criminal history. See

generally In re Joseph, 22 I. & N. Dec. 799 (BIA 1999). At

a “Joseph hearing,” a detainee “may avoid mandatory

detention by demonstrating that he is not an alien, was not

8

Mandatory detention under § 1226(c) applies to non-citizens who are

inadmissible on account of having committed a crime involving moral

turpitude or a controlled substance offense; having multiple criminal

convictions with an aggregate sentence of five years or more of

confinement; having connections to drug trafficking, prostitution,

commercialized vice, money laundering, human trafficking, or terrorism;

having carried out severe violations of religious freedom while serving as

a foreign government official; or having been involved in serious criminal

activity and asserting immunity from prosecution. It also applies to non-

citizens who are deportable on account of having been convicted of two

or more crimes involving moral turpitude, an aggravated felony, a

controlled substance offense, certain firearm-related offenses, or certain

other miscellaneous crimes; having committed a crime of moral turpitude

within a certain period of time since their date of admission for which a

sentence of one year or longer has been imposed; or having connections

to terrorism. See 8 U.S.C. § 1226(c) (cross-referencing 8 U.S.C.

§§ 1182(a)(2), 1227(a)(2)(A)(ii), 1227(a)(2)(A)(iii), 1227(a)(2)(B),

1227(a)(2)(C), 1227(a)(2)(D), 1227(a)(2)(A)(i), 1182(a)(3)(B),

1227(a)(4)(B)).

34 RODRIGUEZ V. ROBBINS

convicted of the predicate crime, or that the [DHS] is

otherwise substantially unlikely to establish that he is in fact

subject to mandatory detention.” Demore, 538 U.S. at 514

n.3. “A determination in favor of an alien” at a Joseph

hearing “does not lead to automatic release,” Joseph, 22 I. &

N. Dec. at 806, because the government retains discretionary

authority to detain the individual under § 1226(a). Instead,

such a determination allows the IJ to consider granting bond

under the § 1226(a) standards, namely, whether the detainee

would pose a danger or flight risk if released. See id.; see

also Demore, 538 U.S. at 532 (Kennedy, J., concurring).

As a result of § 1226(c)’s mandatory language and the

limited review available through a Joseph hearing,

individuals are often detained for years without adequate

process. See, e.g., Tijani, 430 F.3d at 1242 (lawful permanent

resident detained for more than two and a half years).

Members of the § 1226(c) subclass also tend to be detained

for longer periods than other class members: The longest-

detained class member was confined for 1,585 days and

counting as of April 28, 2012, and the average subclass

member faces detention for 427 days. These lengthy

detention times bear no relationship to the seriousness of

class members’ criminal history or the lengths of their

previously served criminal sentences. In several instances

identified by class counsel, a class member was sentenced to

one to three months in prison for a minor controlled

substances offense, then endured one or two years in

immigration detention. Nor do these detention durations bear

any relation to the merits of the subclass members’ claims:

Of the § 1226(c) subclass members who apply for relief from

removal, roughly 40% are granted such relief, a rate even

higher than that of the overall class.

RODRIGUEZ V. ROBBINS 35

In Rodriguez II, we held that “the prolonged detention of

an alien [under § 1226(c)] without an individualized

determination of his dangerousness or flight risk would be

constitutionally doubtful.” 715 F.3d at 1137–38 (quoting

Casas, 535 F.3d at 951). To avoid these “constitutional

concerns, § 1226(c)’s mandatory language must be construed

‘to contain an implicit reasonable time limitation.’” Id. at

1138 (quoting Zadvydas, 533 U.S. at 682). Accordingly, at

the six-month mark, “when detention becomes prolonged,

§ 1226(c) becomes inapplicable,” and “the Attorney

General’s detention authority rests with § 1226(a).” Id.

(citation omitted). Under Casas, those detainees are then

entitled to a bond hearing. See id. (discussing Casas,

535 F.3d at 951).

Contrary to the government’s argument, this holding is

consistent with the text of § 1226(c), which requires that the

government detain certain non-citizens but does not mandate

such detention for any particular length of time. See id. at

1138–39 (The government “does not argue that reading an

implicit temporal limitation on mandatory detention into the

statute is implausible. Indeed, it could not do so, because

such an argument is foreclosed by our decisions in Tijani and

Casas.”) (alterations in original) (citation omitted). Our

holding is also consistent with the Supreme Court’s decision

in Demore, which turned on the brevity of the detention at

issue. See Demore, 538 U.S. at 513 (holding that Congress

may require detention “for the brief period necessary for [a

non-citizen’s] removal proceedings”); id. at 526 (discussing

the “longstanding view that the Government may

constitutionally detain deportable aliens during the limited

period necessary for their removal proceedings”); id. at 530

n.12 (emphasizing the “very limited time of the detention at

stake under § 1226(c)”).

36 RODRIGUEZ V. ROBBINS

Since Rodriguez II, no intervening changes in the law

have affected our conclusions. Neither the Supreme Court

nor our Circuit has had occasion to reexamine these issues,

and the Third and Sixth Circuits have not changed the

positions they adopted in Diop and Ly, respectively. See

Chavez-Alvarez v. Warden, York Cnty. Prison, 783 F.3d 469,

478 (3d Cir. 2015) (finding petitioner’s detention

unreasonable under the Diop framework); cf. Hernandez v.

Prindle, No. 15-10, 2015 WL 1636138, at *7 (E.D. Ky. Apr.

13, 2015) (citing Ly for the proposition that a “short” period

of detention “to effectuate effective removal,” “does not raise

due process concerns”), appeal dismissed (6th Cir. 2015).

Moreover, district courts have relied on Rodriguez II in

resolving numerous habeas petitions filed by immigration

detainees. See, e.g., Castaneda v. ICE Field Office Dir., No.

14-1427, 2015 WL 71584, at *2–3 (W.D. Wash. Jan. 6, 2015)

(addressing whether the petitioner’s bond hearing complied

with the requirements of Rodriguez II); Garcia-Perez v.

Kane, No. 13-01870, 2014 WL 3339794, at *2 (D. Ariz. July

8, 2014) (noting that, under Rodriguez II, “detention always

becomes prolonged at six months,” but denying a habeas

petition because petitioner “has not been detained for longer

than six months”); Lopez v. Napolitano, No. 12-01750, 2014

WL 1091336, at *4–6 (E.D. Cal. Mar. 18, 2014) (extending

Rodriguez II to a non-citizen detained under § 1226(a)

pending reinstatement of a previously issued removal order);

Franco-Gonzalez v. Holder, No. 10-02211, 2013 WL

3674492, at *10–13 (C.D. Cal. Apr. 23, 2013) (applying

Rodriguez II in holding that a class of non-citizens detained

under §§ 1225(b), 1226, and 1231 are entitled to bond

hearings after six months of detention).

RODRIGUEZ V. ROBBINS 37

Thus, Rodriguez II is law of the case and law of the

circuit. As we recently explained, the “law of the case

doctrine” provides that “a court will generally refuse to

reconsider an issue that has already been decided by the same

court or a higher court in the same case.” Gonzalez v.

Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc),

aff’d sub nom. Arizona v. Inter Tribal Council of Ariz., Inc.,

133 S. Ct. 2247 (2013); see also Gonzales v. U.S. Dep’t of

Homeland Sec., 712 F.3d 1271, 1278 (9th Cir. 2013);

Bernhardt v. Los Angeles County, 339 F.3d 920, 924 (9th Cir.

2003). Likewise, pursuant to the “‘law of the circuit’ rule,”

“a published decision of this court constitutes binding

authority which ‘must be followed unless and until overruled

by a body competent to do so.’” Gonzalez, 677 F.3d at 389

n.4 (quoting Hart v. Massanari, 266 F.3d 1155, 1170 (9th

Cir. 2001)); see also United States v. Johnson, 256 F.3d 895,

914 (9th Cir. 2001) (en banc) (“[W]here a panel confronts an

issue germane to the eventual resolution of the case, and

resolves it after reasoned consideration in a published

opinion, that ruling becomes the law of the circuit . . . .”).

The “‘general rule’ is that our decisions ‘at the

preliminary injunction phase do not constitute the law of the

case.’” Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1075 n.5

(9th Cir. 2015) (quoting Ranchers Cattlemen Action Legal

Fund United Stockgrowers of Am. v. Dep’t of Agric., 499 F.3d

1108, 1114 (9th Cir. 2007)). Because preliminary injunction

decisions are often “made hastily and on less than a full

record,” they “may provide little guidance as to the

appropriate disposition on the merits.” Ctr. for Biological

Diversity v. Salazar, 706 F.3d 1085, 1090 (9th Cir. 2013)

(citations omitted); see also S. Or. Barter Fair v. Jackson

County, 372 F.3d 1128, 1136 (9th Cir. 2004). However,

“there is an exception to the general rule for ‘conclusions on

38 RODRIGUEZ V. ROBBINS

pure issues of law.’” Stormans, 794 F.3d at 1075 n.5

(quoting Alpha Delta Chi–Delta Chapter v. Reed, 648 F.3d

790, 804–05 (9th Cir. 2011)); see also Ranchers Cattlemen,

499 F.3d at 1114 (“Any of our conclusions on pure issues of

law, however, are binding.”).

The question resolved in Rodriguez II—whether non-

citizens subject to prolonged detention under § 1226(c) are

entitled to bond hearings—is a pure question of law. We

interpreted the statute by applying the canon of constitutional

avoidance, and were bound to do so by our prior precedent.

The decision was not made “hastily”; it provided a “fully

considered appellate ruling” on the legal issues. Ranchers

Cattlemen, 499 F.3d at 1114 (quoting 18 Charles Alan Wright

& Arthur R. Miller, Federal Practice and Procedure § 4478.5

(2002)). We therefore follow Rodriguez II as law of the case

and law of the circuit.9

2. The § 1225(b) Subclass

Section 1225(b) applies to “applicants for admission”

who are stopped at the border or a port of entry, or who are

“present in the United States” but “ha[ve] not been admitted.”

8 U.S.C. § 1225(a)(1). The statute provides that asylum

9

The government’s primary arguments regarding § 1226(c) are that we

misconstrued Demore and other Supreme Court precedent, that the

permanent injunction is inconsistent with the language and purpose of

§ 1226(c), and that bond hearings following six months of incarceration

are not necessary and are an inappropriate “one size fits all” remedy.

These arguments are foreclosed by Rodriguez II. The government also

argues that any challenges to detention under § 1226(c) must be addressed

through individual as-applied claims. This argument is foreclosed by

Rodriguez I, which reversed the district court’s denial of class

certification.

RODRIGUEZ V. ROBBINS 39

seekers “shall be detained pending a final determination of

credible fear of persecution and, if found not to have such a

fear, until removed.” Id. § 1225(b)(1)(B)(iii)(IV). As to all

other applicants for admission, the statute provides that “if

the examining immigration officer determines that an alien

seeking admission is not clearly and beyond a doubt entitled

to be admitted, the alien shall be detained” for removal

proceedings. Id. § 1225(b)(2)(A).

Under DHS regulations, non-citizens detained pursuant to

§ 1225(b) are generally not eligible for release on bond.

8 C.F.R. § 236.1(c)(2). If there are “urgent humanitarian

reasons or significant public benefit[s]” at stake,10 however,

the Attorney General has discretion to temporarily parole

such an individual into the United States, provided that the

individual presents neither a danger nor a risk of flight.

8 U.S.C. § 1182(d)(5)(A). Because parole decisions under

§ 1182 are purely discretionary, they cannot be appealed to

IJs or courts. This lack of review has proven especially

problematic when immigration officers have denied parole

based on blatant errors: In two separate cases identified by

the petitioners, for example, officers apparently denied parole

because they had confused Ethiopia with Somalia. And in a

third case, an officer denied parole because he had mixed up

two detainees’ files.

As with § 1226(c), the government often cites § 1225(b)’s

mandatory language to justify indefinite civil detention

without an individualized determination as to whether the

10

Under this standard, detainees are eligible for parole if they have

serious medical conditions, are pregnant, are juveniles who meet certain

conditions, or will be witnesses in judicial, administrative, or legislative

proceedings. See 8 C.F.R. § 212.5(b).

40 RODRIGUEZ V. ROBBINS

detainee would pose a danger or flight risk if released. See,

e.g., Nadarajah, 443 F.3d at 1071, 1076 (asylum seeker

detained for nearly five years). Section 1225(b) subclass

members have been detained for as long as 831 days, and for

an average of 346 days each. These individuals apply for and

receive relief from removal at very high rates: 94% apply,

and of those who apply, 64% are granted relief. In illustrative

cases identified by the petitioners, non-citizens fled to the

United States after surviving kidnapping, torture, and murder

of their family members in their home countries. Upon

arrival, these individuals were detained under § 1225(b), and

they remained in detention until the government granted their

asylum applications hundreds of days later.

In Rodriguez II, we extended Casas and held that to avoid

serious constitutional concerns, mandatory detention under

§ 1225(b), like mandatory detention under § 1226(c), must be

construed as implicitly time-limited. Rodriguez II, 715 F.3d

at 1144. Accordingly, “the mandatory provisions of

§ 1225(b) simply expire at six months, at which point the

government’s authority to detain the alien shifts to § 1226(a),

which is discretionary and which we have already held

requires a bond hearing.” Id. (citing Casas, 535 F.3d at 948).

In so holding, we recognized that many members of the

§ 1225(b) subclass are subject to the “entry fiction” doctrine,

under which non-citizens seeking admission to the United

States “may physically be allowed within its borders pending

a determination of admissibility,” but “are legally considered

to be detained at the border and hence as never having

effected entry into this country.” Id. at 1140 (quoting

Barrera-Echevarria, 44 F.3d at 1450). Such non-citizens

therefore “enjoy very limited protections under the United

States constitution.” Id. (quoting Barrera-Echevarria, 44

RODRIGUEZ V. ROBBINS 41

F.3d at 1450). However, even if the majority of prolonged

detentions under § 1225(b) are constitutionally permissible,

“the Supreme Court has instructed that, where one possible

application of a statute raises constitutional concerns, the

statute as a whole should be construed through the prism of

constitutional avoidance.” Id. at 1141 (citing Clark, 543 U.S.

at 380). Section 1225(b) applies to several categories of

lawful permanent residents who are not subject to the entry

fiction doctrine but may be treated as seeking admission

under 8 U.S.C. § 1101(a)(13)(C). See id. at 1141–42.11

11

Section 1101(a)(13)(C) provides that:

An alien lawfully admitted for permanent residence in

the United States shall not be regarded as seeking an

admission into the United States for purposes of the

immigration laws unless the alien—

(i) has abandoned or relinquished that status,

(ii) has been absent from the United States for a

continuous period in excess of 180 days,

(iii) has engaged in illegal activity after having departed

the United States,

(iv) has departed from the United States while under

legal process seeking removal of the alien from the

United States, including removal proceedings under this

chapter and extradition proceedings,

(v) has committed an offense identified in section

1182(a)(2) of this title, unless since such offense the

alien has been granted relief under section 1182(h) or

1229b(a) of this title, or

(vi) is attempting to enter at a time or place other than

as designated by immigration officers or has not been

42 RODRIGUEZ V. ROBBINS

Because those persons are entitled to due process protections

under the Fifth Amendment, prolonged detention without

bond hearings would raise serious constitutional concerns.

See id. at 1142–43; see also Zadvydas, 533 U.S. at 682

(holding that indefinite detention of a once-admitted non-

citizen “would raise serious constitutional concerns”). We

therefore construed the statutory scheme to require a bond

hearing after six months of detention under § 1225(b).

Rodriguez II, 715 F.3d at 1144.

The government now argues that “[d]espite years of

discovery, petitioners have not identified any member of the

Section 1225(b) subclass who is a [lawful permanent

resident].” Petitioners represent that they have found lawful

permanent residents who have been detained for more than

six months under § 1225(b), although their submissions do

not identify any specific individuals who fit that description.

The question, however, is whether “one possible application

of [the] statute raises constitutional concerns.” Rodriguez II,

715 F.3d at 1141. Because the government concedes that

detention of lawful permanent residents under § 1225(b) is

possible under § 1101(a)(13)(C), “the statute as a whole

should be construed through the prism of constitutional

avoidance.” Rodriguez II, 715 F.3d at 1141; see also Clark,

543 U.S. at 380 (“It is not at all unusual to give a statute’s

ambiguous language a limiting construction called for by one

of the statute’s applications, even though other of the statute’s

applications, standing alone, would not support the same

limitation. The lowest common denominator, as it were, must

govern.”).

admitted to the United States after inspection and

authorization by an immigration officer.

RODRIGUEZ V. ROBBINS 43

The government also argues that lawful permanent

residents treated as seeking admission are entitled to lesser

due process protections than other lawful permanent

residents. But the government has not provided any authority

to support that proposition: The cases cited in the

government’s brief address statutory and regulatory

distinctions between lawful permanent residents treated as

applicants for admission and other lawful permanent

residents; they do not reflect any constitutional distinction

between those groups. See Gonzaga-Ortega v. Holder,

736 F.3d 795, 8014 (9th Cir. 2013) (holding that lawful

permanent residents treated as applicants for admission are

not entitled to counsel under 8 C.F.R. § 292.5(b));

Toro-Romero v. Ashcroft, 382 F.3d 930, 936 (9th Cir. 2004)

(explaining that different statutes govern exclusion of

inadmissible non-citizens and removal of deportable non-

citizens); Raya-Ledesma v. INS, 55 F.3d 418, 420 (9th Cir.

1994) (holding that “the INS limitation of § 212 relief [from

deportation] to legal permanent residents who have held that

status for more than seven years” does not violate an

ineligible non-citizen’s equal protection rights).

Finally, the government argues that, instead of requiring

bond hearings, we could avoid constitutional concerns by

interpreting § 1225(b) not to apply to lawful permanent

residents. This argument relies on an implausible

construction of the statutes at issue. Section 1225(b) applies

to “applicants for admission,” and § 1101 defines six

categories of lawful permanent residents as “seeking an

admission into the United States for purposes of the

immigration laws.” 8 U.S.C. § 1101(a)(13)(C); see also

Gonzaga-Ortega, 736 F.3d at 801 (“Ordinarily a returning

[lawful permanent resident] is not treated as an ‘applicant for

44 RODRIGUEZ V. ROBBINS

admission.’ But the statute that so provides includes six

exceptions . . . .”).

The Supreme Court’s decision in Kwong Hai Chew v.

Colding, 344 U.S. 590 (1953), is not to the contrary. Chew

involved a pre-IIRIRA immigration regulation that applied to

“excludable” non-citizens. Id. at 591 n.1. Because the

regulations were silent as to whether that category included

lawful permanent residents returning from voyages abroad,

the Court distinguished between the “exclusion” of newly

arriving non-citizens and the “expulsion” of lawful permanent

residents, thereby holding that the regulation did not

authorize the Attorney General to detain arriving lawful

permanent residents without hearings. Id. at 598–99. Section

1101(a)(13)(C) forecloses an analogous construction of

§ 1225(b) because it provides that “applicants for admission”

includes several groups of lawful permanent residents. See

8 U.S.C. § 1101(a)(13)(C). In any event, the government’s

alternative construction of § 1225(b) was never raised before

the district court; the argument is therefore forfeited. See

Munns v. Kerry, 782 F.3d 402, 412 (9th Cir. 2015); Saldana

v. Occidental Petrol. Corp., 774 F.3d 544, 554 (9th Cir.

2014).

Accordingly, we adhere to Rodriguez II’s holding

regarding the § 1225(b) subclass as law of the case and law

of the circuit. See Gonzalez, 677 F.3d at 390 n.4. The

government’s attempts to re-litigate Rodriguez II are

unavailing.12

12

The government argues, among other things, that the permanent

injunction entered by the district court is inconsistent with § 1225(b), DHS

regulations, the political branches’ plenary control of the borders, the

limited constitutional protections afforded to non-citizens seeking

RODRIGUEZ V. ROBBINS 45

3. The § 1226(a) Subclass

Section 1226(a) authorizes detention “pending a decision

on whether the alien is to be removed from the United

States.” 8 U.S.C. § 1226(a). The statute expressly authorizes

release on “bond of at least $1,500” or “conditional parole.”13

Id. § 1226(a)(2). Following an initial custody determination

by DHS, a non-citizen may apply for a review or

redetermination by an IJ, and that decision may be appealed

to the BIA. See 8 C.F.R. §§ 236.1, 1003.19. At these

hearings, the detainee bears the burden of establishing “that

he or she does not present a danger to persons or property, is

not a threat to the national security, and does not pose a risk

of flight.” Guerra, 24 I. & N. Dec. at 38. “After an initial

admission to the United States, and Supreme Court precedent. The

government also argues that bond hearings are unnecessary because non-

citizens detained under § 1225(b) can be released on parole. We

considered and rejected these arguments in Rodriguez II, and we decline

to address them here.

The government also argues that we should reconsider the holding in

Rodriguez II in light of new evidence, including as to the rates at which

non-citizens abscond or commit crimes after release, and the efficacy of

the parole process. Because Rodriguez II involved pure questions of law,

this new evidence is not material and does not alter our conclusions.

13

“‘[C]onditional parole’ under §1226(a)(2)(B) is a ‘distinct and

different procedure’ from ‘parole’ under § 1182(d)(5)(A)).” Garcia v.

Holder, 659 F.3d 1261, 1268 (9th Cir. 2011) (quoting In re

Castillo-Padilla, 25 I. & N. Dec. 257, 258 (BIA 2010)). As discussed

above, § 1182(d)(5)(A) authorizes the Attorney General to temporarily

release non-citizens detained under § 1225(b) “for urgent humanitarian

reasons or significant public benefit.” Conditional parole under § 1226(a),

by contrast, provides for release from detention if the non-citizen “would

not pose a danger to property or persons” and “is likely to appear for any

further proceeding.” 8 C.F.R. § 236.1(c)(8).

46 RODRIGUEZ V. ROBBINS

bond redetermination,” a request for another review “shall be

considered only upon a showing that the alien’s

circumstances have changed materially since the prior bond

redetermination.” 8 C.F.R. § 1003.19(e). The government

has taken the position that additional time spent in detention

is not a “changed circumstance” that entitles a detainee to a

new bond hearing.

Although § 1226(a) provides for discretionary, rather than

mandatory, detention and establishes a mechanism for

detainees to seek release on bond, non-citizens often face

prolonged detention under that section. See, e.g., Casas,

535 F.3d at 944 (lawful permanent resident detained for seven

years); Singh, 638 F.3d at 1203 (lawful permanent resident

detained for nearly four years). In an extreme case identified

by the petitioners, a non-citizen with no criminal record

entered the United States on a tourist visa and affirmatively

applied for asylum, withholding of removal, and relief under

the Convention Against Torture shortly after that visa

expired. ICE detained him throughout the ensuing

proceedings before the IJ, the BIA, and the Ninth Circuit. At

the time petitioners generated their report, he had been

detained for 1,234 days with no definite end in sight.

The district court’s decision regarding the § 1226(a)

subclass was squarely controlled by our precedents. In

Casas, we held that a non-citizen subjected to prolonged

detention under § 1226(a) is entitled to a hearing to establish

whether continued detention is necessary because he would

pose a danger to the community or a flight risk upon release.

535 F.3d at 949–52. Since deciding Casas, we have

repeatedly affirmed its holding. See Cole v. Holder, 659 F.3d

762, 769 n.7 (9th Cir. 2011); Singh, 638 F.3d at 1200;

Aguilar-Ramos v. Holder, 594 F.3d 701, 704 n.3 (9th Cir.

RODRIGUEZ V. ROBBINS 47

2010); Makaj v. Crowther, 294 F. App’x 328, 329–30 (9th

Cir. 2008) (non-precedential memorandum disposition).

The government does not contest that Casas is the

binding law of this circuit or that individuals detained under

§ 1226(a) are entitled to bond hearings. Instead, the

government argues that § 1226(a) affords detainees the right

to request bond hearings, see 8 C.F.R. § 236.1, so there is no

basis for requiring the government to automatically provide

bond hearings after six months of detention. This argument

is foreclosed by Casas, which held that Ҥ 1226(c) must be

construed as requiring the Attorney General to provide the

alien with [a bond] hearing.” 535 F.3d at 951; see also

Rodriguez II, 715 F.3d at 1135 (citing Casas for the

proposition that under § 1226(a), “a bond hearing is required

before the government may detain an alien for a ‘prolonged’

period”). The record evinces the importance of Casas’s

holding on this point: Detainees, who typically have no

choice but to proceed pro se, have limited access to legal

resources, often lack English-language proficiency, and are

sometimes illiterate. As a result, many class members are not

aware of their right to a bond hearing and are poorly equipped

to request one. Accordingly, we conclude that class members

are entitled to automatic bond hearings after six months of

detention. We address the other procedural requirements for

these hearings in Section IV.B, infra.

4. The § 1231(a) Subclass

Section 1231(a) governs detention of non-citizens who

have been “ordered removed.” 8 U.S.C. § 1231(a). The

statute provides for mandatory detention during a ninety-day

removal period. Id. § 1231(a)(2). Under the statute:

48 RODRIGUEZ V. ROBBINS

The removal period begins on the latest of the following:

(i) The date the order of removal becomes

administratively final.

(ii) If the removal order is judicially reviewed

and if a court orders a stay of the removal of

the alien, the date of the court’s final order.

(iii) If the alien is detained or confined

(except under an immigration process), the

date the alien is released from detention or

confinement.

Id. § 1231(a)(1)(B). The removal period may be extended

beyond ninety days if a detainee “fails or refuses” to

cooperate in his removal from the United States. Id.

§ 1231(a)(1)(C).

“If the alien does not leave or is not removed within the

removal period,” he “shall be subject to supervision,” but

detention is no longer mandatory. Id. § 1231(a)(3). Rather,

the Attorney General has discretion to detain certain classes

of non-citizens and to impose conditions of release on others.

Id. § 1231(a)(3), (a)(6).14 Before releasing a detainee, the

government must conclude that removal is “not practicable or

not in the public interest,” that the detainee is “non-violent”

and “not likely to pose a threat to the community following

14

To avoid “serious constitutional concerns,” we have previously

“construe[d] § 1231(a)(6) as requiring an individualized bond hearing,

before an immigration judge, for aliens facing prolonged detention under

that provision.” Diouf II, 634 F.3d at 1086 (quoting Casas, 535 F.3d at

950).

RODRIGUEZ V. ROBBINS 49

release,” and that the detainee “does not pose a significant

flight risk” and is “not likely to violate the conditions of

release.” 8 C.F.R. § 241.4(e); see also id. § 241.4(f)

(enumerating factors the review panel should “weigh[] in

considering whether to recommend further detention or

release of a detainee”).

Here, the class is defined, in relevant part, as non-citizens

who are detained “pending completion of removal

proceedings, including judicial review.” The class therefore

by definition excludes any detainee subject to a final order of

removal.

Petitioners describe the § 1231(a) subclass as individuals

detained under that section who have received a stay of

removal from the BIA or a court. However, if a non-citizen

has received a stay of removal from the BIA pending further

administrative review, then the order of removal is not yet

“administratively final.” 8 U.S.C. § 1231(a)(1)(B)(i). The

non-citizen has not been “ordered removed,” and the removal

period has not begun, so § 1231(a) is inapplicable. See

Owino v. Napolitano, 575 F.3d 952, 955 (9th Cir. 2009)

(“[W]hile administrative proceedings are pending on remand,

Owino will not be subject to a final order of removal, so

§ 1231 cannot apply.”). Similarly, as long as a non-citizen’s

removal order is stayed by a court pending judicial review,

that non-citizen is not subject to “the court’s final order.”

8 U.S.C. § 1231(a)(1)(B)(ii). In such circumstances,

§ 1231(a) is, again, inapplicable. See Prieto-Romero v.

Clark, 534 F.3d 1053, 1059 (9th Cir. 2008) (“[Section]

1231(a) does not provide authority to detain an alien . . .

whose removal has been stayed by a court of appeals pending

its disposition of his petition for review.”); Casas, 535 F.3d

at 947 (“If an alien has filed a petition for review with this

50 RODRIGUEZ V. ROBBINS

court and received a judicial stay of removal, the ‘removal

period’ under § 1231(a) does not begin until this court ‘denies

the petition and withdraws the stay of removal.’”) (quoting

Prieto-Romero, 534 F.3d at 1060).15

Simply put, the § 1231(a) subclass does not exist. The

district court’s grant of summary judgment and permanent

injunction are therefore reversed to the extent they pertain to

individuals detained under § 1231(a).

C. Procedural Requirements

In addition to challenging the class members’ entitlement

to automatic bond hearings after six months of detention, the

government objects to the district court’s order regarding the

burden and standard of proof at such hearings. The

government also appeals the district court’s ruling that IJs

must consider alternatives to detention. Petitioners cross-

appeal the district court’s rulings that IJs are not required to

consider the ultimate likelihood of removal, assess the total

length of detention, or conduct periodic hearings at six-month

intervals. We address each issue in turn.

1. Burden and Standard of Proof

The government argues that the district court erred in

requiring the government to justify a non-citizen’s detention

15

“Such aliens may be detained, however, pursuant to § 1226(a), which

allows the Attorney General to detain any alien ‘pending a decision on

whether the alien is to be removed from the United States.’” Prieto-

Romero, 534 F.3d at 1059. As noted, non-citizens subjected to prolonged

detention under § 1226(a) are entitled to bond hearings. See Casas,

535 F.3d at 944, 949–51.

RODRIGUEZ V. ROBBINS 51

by clear and convincing evidence, an intermediate burden of

proof that is more than a preponderance of the evidence but

less than proof beyond a reasonable doubt. As we noted in

Rodriguez II, however, we are bound by our precedent in

Singh, which held that “the government must prove by clear

and convincing evidence that an alien is a flight risk or a

danger to the community to justify denial of bond at a Casas

hearing.” Rodriguez II, 715 F.3d at 1135 (quoting Singh,

638 F.3d at 1203).

In Singh, we explained that the “Supreme Court has

repeatedly reaffirmed the principle that ‘due process places a

heightened burden of proof on the State in civil proceedings

in which the individual interests at stake . . . are both

particularly important and more substantial than mere loss of

money.’” 638 F.3d at 1204 (alteration in original) (quoting

Cooper v. Oklahoma, 517 U.S. 348, 363 (1996) (criminal

defendant’s competence to stand trial)) (citing Foucha,

504 U.S. at 80 (indefinite confinement of a criminal

defendant acquitted by reason of insanity); Woodby v. INS,

385 U.S. 276, 285 (1966) (deportation of a lawful permanent

resident); Chaunt v. United States, 364 U.S. 350, 353 (1960)

(revocation of naturalized citizenship)). In the civil

commitment context, for example, the Supreme Court has

recognized “the state’s interest in committing the emotionally

disturbed,” but has held that “the individual’s interest in not

being involuntarily confined indefinitely . . . is of such weight

and gravity that due process requires the state to justify

confinement by proof more substantial than a mere

preponderance of the evidence.” Addington v. Texas,

441 U.S. 418, 425–27 (1979). Drawing on this jurisprudence,

Singh concluded that “a clear and convincing evidence

standard of proof provides the appropriate level of procedural

protection” in light of “the substantial liberty interest at

52 RODRIGUEZ V. ROBBINS

stake.” 638 F.3d at 1203–04 (citing Addington, 441 U.S. at

427).

The government now contends that Singh was wrongly

decided. However, it is well established that only a full court,

sitting en banc, may overrule a three-judge panel decision.

See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003).

Right or wrong, we are bound to follow Singh unless

intervening Supreme Court authority is to the contrary. Id.

2. Restrictions Short of Detention

The government also argues that the district court erred in

“determin[ing] that IJs are required to consider the use of

alternatives to detention in making bond determinations.” As

the district court’s order states, however, IJs “should already

be considering restrictions short of incarceration.” Indeed,

Rodriguez II affirmed a preliminary injunction that directed

IJs to “release each Subclass member on reasonable

conditions of supervision, including electronic monitoring if

necessary, unless the government” satisfied its burden of

justifying continued detention. 715 F.3d at 1131 (emphasis

added).

The government’s objections to this requirement are

unpersuasive. First, the government relies on Demore for the

proposition that the government is not required “to employ

the least burdensome means” of securing immigration

detainees. Demore, 538 U.S. at 528. But Demore applies

only to “brief period[s]” of immigration detention. Id. at 513,

523. “When the period of detention becomes prolonged, ‘the

private interest that will be affected by the official action’ is

more substantial; greater procedural safeguards are therefore

required.” Diouf II, 634 F.3d at 1091 (quoting Mathews, 424

RODRIGUEZ V. ROBBINS 53

U.S. at 335). Further, the injunction does not require that IJs

apply the least restrictive means of supervision; it merely

directs them to “consider” restrictions short of detention. The

IJ ultimately must decide whether any restrictions short of

detention would further the government’s interest in

continued detention.

Second, the government argues that IJs are not

empowered to impose conditions of release. However,

federal regulations authorize IJs to “detain the alien in

custody, release the alien, and determine the amount of bond,

if any, under which the respondent may be released” and to

“ameliorat[e] the conditions” of release imposed by DHS. 8

C.F.R. § 1236.1(d)(1). Accordingly, if DHS detains a non-

citizen, an IJ is already empowered to “ameliorat[e] the

conditions” by imposing a less restrictive means of

supervision than detention.16

Finally, the government argues that IJs lack the resources

to engage in continuous monitoring of released individuals.

However, the government fails to cite any law or evidence

indicating that IJs, rather than DHS or ICE agents, would be

responsible for implementing the conditions of release.

Moreover, the record indicates that Congress authorized and

funded an ICE alternatives-to-detention program in 2002, and

DHS has operated such a program, called the Intensive

Supervision and Appearance Program, since 2004. It is

16

The authorities the government cites provide no support for this

argument. One discusses DHS officers’ authority to impose conditions of

release and allows IJs to “ameliorat[e] those conditions,” see 8 C.F.R.

§ 236.1; the other provides only that IJs may not grant relief from removal

for the purpose of fulfilling the United States’ treaty obligations, see In re

G-K-, 26 I. & N. Dec. 88, 93 (BIA 2013).

54 RODRIGUEZ V. ROBBINS

abundantly clear that IJs can and do17 consider conditions of

release on bond when determining whether the government’s

interests can be served by detention only, and we conclude

that DHS will administer any such conditions, regardless of

whether they are imposed by DHS in the first instance or by

an IJ upon later review.

3. Length of Detention and Likelihood of Removal

In their cross-appeal, petitioners argue that the district

court erred in failing to require IJs to consider the length of a

non-citizen’s past and likely future detention and, relatedly,

the likelihood of eventual removal from the United States. In

our prior decisions, we have not directly addressed whether

due process requires consideration of the length of future

detention at bond hearings. We have noted, however, that

“the due process analysis changes as ‘the period of . . .

confinement grows,’” and that longer detention requires more

robust procedural protections. Diouf II, 634 F.3d at 1086

(quoting Zadvydas, 634 F.3d 1081). Accordingly, a non-

citizen detained for one or more years is entitled to greater

solicitude than a non-citizen detained for six months.

17

On September 10, 2015, the government provided us with the only

transcript of a Rodriguez hearing in this record, which took place on April

28, 2015, and concerned a Mr. Kaene Dean. There, the IJ did consider

and impose conditions of release in addition to bond, including monthly

reporting to DHS and enrollment in a mental health treatment plan. From

the transcript, it does not appear that the government presented any

evidence that these conditions would be insufficient to prevent the risk of

danger to the community, or even any evidence at all. However, the IJ’s

decision to release on bond a recidivist sexual offender whom the DOJ

had released twice before in proceedings unrelated to this case under

§ 1226(a) and who had twice before violated the conditions of his release

on bond is not before us. See October 2, 2015 Order.

RODRIGUEZ V. ROBBINS 55

Moreover, Supreme Court precedent provides that “detention

incidental to removal must bear a reasonable relation to its

purpose.” Tijani, 430 F.3d at 1249 (Tashima, J., concurring)

(citing Demore, 538 U.S. at 527; Zadvydas, 533 U.S. at 690).

At some point, the length of detention could “become[] so

egregious that it can no longer be said to be ‘reasonably

related’ to an alien’s removal.” Id. (citation omitted). An IJ

therefore must consider the length of time for which a non-

citizen has already been detained.

As to the likely duration of future detention and the

likelihood of eventual removal, however, those factors are too

speculative and too dependent upon the merits of the

detainee’s claims for us to require IJs to consider during a

bond hearing. We therefore affirm the district court’s ruling

that consideration of those factors “would require legal and

political analyses beyond what would otherwise be

considered at a bond hearing” and is therefore not

appropriate. We note that Zadvydas and its progeny require

consideration of the likelihood of removal in particular

circumstances,18 but we decline to require such analysis as a

threshold inquiry in all bond hearings.

18

Several of our cases have addressed petitions for habeas relief under

Zadvydas, which requires a detainee to prove that he “is not significantly

likely to be removed.” Owino, 575 F.3d at 955; see also Diouf v. Mukasey

(Diouf I), 542 F.3d 1222, 1233 (9th Cir. 2008); Prieto-Romero, 534 F.3d

at 1065; Nadarajah, 443 F.3d at 1080. Those decisions instruct IJs to

consider the likelihood of removal when, for instance, a detainee is

stateless. See Owino, 575 F.3d at 955–56. However, petitioners have not

identified, and we have not found, authority that supports requiring this

inquiry in all bond hearings.

56 RODRIGUEZ V. ROBBINS

4. Periodic Hearings

The record shows that many class members are detained

well beyond the six-month mark: Almost half remain in

detention at the twelve-month mark, one in five at eighteen

months, and one in ten at twenty-four months. Petitioners

argue that due process requires additional bond hearings at

six-month intervals for class members who are detained for

more than six months after their initial bond hearings. We

have not had occasion to address this issue in our previous

decisions, and it has been a source of some contention in the

district courts. See, e.g., Vivorakit v. Holder, No. 14-04515,

2015 WL 4593545, at *4 (N.D. Cal. July 30, 2015);

Castaneda v. Aitken, No. 15-01635, 2015 WL 3882755, at

*10 (N.D. Cal. June 23, 2015).

The district court here did not address this proposed

requirement. For the same reasons the IJ must consider the

length of past detention, we hold that the government must

provide periodic bond hearings every six months so that non-

citizens may challenge their continued detention as “the

period of . . . confinement grows.” Diouf II, 634 F.3d at 1091

(quoting Zadvydas, 533 U.S. at 701).

V. Conclusion

This decision flows from the Supreme Court’s and our

own precedent bearing on the constitutional implications of

our government’s prolonged civil detention of individuals,

many of whom have the legal right to live and work in our

country. By upholding the district court’s order that

Immigration Judges must hold bond hearings for certain

detained individuals, we are not ordering Immigration Judges

to release any single individual; rather we are affirming a

RODRIGUEZ V. ROBBINS 57

minimal procedural safeguard—a hearing at which the

government bears only an intermediate burden of proof in

demonstrating danger to the community or risk of flight—to

ensure that after a lengthy period of detention, the

government continues to have a legitimate interest in the

further deprivation of an individual’s liberty. Immigration

Judges, a specialized and experienced group within the

Department of Justice, are already entrusted to make these

determinations, and need not release any individual they find

presents a danger to the community or a flight risk after

hearing and weighing the evidence. Accordingly, we affirm

all aspects of the district court’s permanent injunction, with

three exceptions: We reverse as to the § 1231(a) subclass,

and we hold that IJs must consider the length of detention and

provide bond hearings every six months. We hereby remand

to the district court to enter a revised injunction consistent

with our instructions.

AFFIRMED IN PART; REVERSED IN PART;

REMANDED.