Alejandro Rodriguez v. Timothy Robbins

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALEJANDRO RODRIGUEZ; ABDIRIZAK No. 12-56734

ADEN FARAH ; JOSE FARIAS

CORNEJO ; YUSSUF ABDIKADIR; D.C. No.

ABEL PEREZ RUELAS, for themselves 2:07-cv-03239-

and on behalf of a class of similarly- TJH-RNB

situated individuals,

Petitioners-Appellees,

OPINION

and

EFREN OROZCO ,

Petitioner,

v.

TIMOTHY ROBBINS, Field Office

Director, Los Angeles District,

Immigration and Customs

Enforcement; JANET NAPOLITANO ,

Secretary, Homeland Security; ERIC

H. HOLDER, JR., 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; OFFICER

NGUYEN , Officer-in-Charge, Theo

Lacy Facility; CAPTAIN DAVIS

2 RODRIGUEZ V . ROBBINS

NIGHSWONGER, Commander, Theo

Lacy Facility; CAPTAIN MIKE

KREUGER , 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.

Appeal from the United States District Court

for the Central District of California

Terry J. Hatter, Senior District Judge, Presiding

Argued and Submitted

March 4, 2013—Pasadena, California

Filed April 16, 2013

Before: Kim McLane Wardlaw and Ronald M. Gould,

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

Opinion by Judge Wardlaw

*

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 the district court’s grant of a

preliminary injunction in favor of a certified class of non-

citizens who challenge their prolonged detentions, requiring

the government to identify those detained in subclasses

pursuant to 8 U.S.C. § 1226(c) (certain criminal or terrorist

aliens) and § 1225(b) (arriving aliens), and to provide each

with an individualized bond hearing before an Immigration

Judge.

The panel held that petitioners-appellees were likely to

succeed on the merits of their claim that § 1225(b) must be

construed to authorize only six months of mandatory

detention, after which detention is authorized by § 1226(a)

and a bond hearing is required. The panel also held that the

preliminary injunction is necessary to ensure that individuals

whom the government could not prove constitute a flight risk

or danger to public safety are not needlessly detained, and

that appellees therefore clearly showed a risk of irreparable

harm.

COUNSEL

Theodore W. Atkinson (argued), Stuart F. Delery, August

Flentje, David J. Kline, United States Department of Justice,

Washington, D.C., for Appellants.

**

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

Ahilan T. Arulanantham (argued), Michael Kaufman, ACLU

Foundation of Southern California, Los Angeles, California;

Judy Rabinovitz and Michael Tan, ACLU Immigrants’ Rights

Project, New York, New York; Jayashri Srikantiah, Stanford

Law School Immigrants’ Rights Clinic, Stanford, California;

Sean Commons and Cody Jacobs, Sidley Austin LLP, Los

Angeles, California, for Appellees.

Angel L. Tang, Marco J. Martemucci, and Elizabeth S. St.

John, Arnold & Porter LLP, Los Angeles, California, for

Amici Curiae professors and researchers of sociology,

criminology, anthropology, and law.

Sarah H. Paoletti, Elizabeth Freed, and Suniti Mehta,

University of Pennsylvania Law School Transnational Legal

Clinic, Philadelphia, Pennsylvania, for Amici Curiae

international law professors and human rights clinics and

clinicians.

OPINION

WARDLAW, Circuit Judge:

Alejandro Rodriguez, Abdirizak Aden Farah, Jose Farias

Cornejo, Yussuf Abdikadir, and Abel Perez Ruelas

(“Appellees”) are the named plaintiffs representing a certified

class of non-citizens who challenge their prolonged detention,

pursuant to certain federal immigration statutes, without

individualized bond hearings and determinations to justify

RODRIGUEZ V . ROBBINS 5

their continued detention.1 The district court entered a

preliminary injunction requiring the government to identify

all class members detained pursuant to 8 U.S.C. §§ 1226(c)

and 1225(b) (the “1226(c) subclass” and “1225(b) subclass,”

respectively), and to “provide each of them with a bond

hearing before an Immigration Judge with power to grant

their release.” Under the preliminary injunction, at the

conclusion of each bond hearing, the Immigration Judge

(“IJ”) “shall release each Subclass member on reasonable

conditions of supervision, including electronic monitoring if

necessary, 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.”2 The government appeals that order, and we affirm.

1

The class consists of:

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.

2

The district court entered its order on September 13, 2012. Thereafter,

a panel of our court stayed the injunction for 30 days, giving the

government until November 12, 2012 to comply with the preliminary

injunction. At oral argument, government counsel represented that, since

bond hearings began in mid-November of 2012, about 400 hearings have

been conducted under the district court’s order. Government counsel

stated that about two-thirds of those hearings resulted in the release of the

alien on bond.

6 RODRIGUEZ V . ROBBINS

I.

At any given time, thousands of immigrants to the United

States are detained while they await the conclusion of

administrative and judicial proceedings that will determine

whether they may remain in this country. According to the

most recently available statistics, over 429,000 detainees

were held by U.S. Immigration and Customs Enforcement

(“ICE”) over the course of fiscal year 2011; on average, over

33,000 were detained on any given day.3 As of late 2011, the

Los Angeles Field Office of ICE oversaw the detention of

over 2,000 aliens, the great majority of whom were not

subject to a final order of removal. Id. at 1.

This appeal concerns individuals detained in southern

California for six months or longer under one of two federal

immigration statutes. Section 1226(c) of Title 8 of the United

States Code (“Section 1226(c)” or “§ 1226(c)”) subjects

certain aliens who are deportable or inadmissible on account

of their criminal history to mandatory detention pending

proceedings to remove them from the United States.4 If an

3

U.S. Immigration and Customs Enforcement, Enforcement and

Removal Operations Facts and Statistics 3 (2011), available at

http://www.ice.gov/doclib/foia/reports/ero-facts-and-statistics.pdf.

4

Mandatory detention under Section 1226(c) applies to aliens who are

inadmissible on account of having committed a crime involving moral

turpitude or a controlled substance offense, on account of having multiple

criminal convictions with an aggregate sentence of five years or more of

confinement, on account of connections to drug trafficking, prostitution,

money laundering, or human trafficking, on account of having carried out

severe violations of religious freedom while serving as a foreign

government official, or on account of having been involved in serious

criminal activity and asserting immunity from prosecution; aliens who are

deportable on account of having been convicted of two or more crimes

RODRIGUEZ V . ROBBINS 7

ICE official determines that an individual’s criminal history

triggers application of §1226(c), the alien is processed for

detention. If the relevant ICE official is unsure whether

§ 1226(c) applies to a certain individual, he may consult an

ICE attorney who is “embedded” in the field office.

Detainees are permitted to ask an Immigration Judge to

reconsider the applicability of mandatory detention, see 8

C.F.R. § 1003.19(h)(2)(ii), but such review is limited in scope

and addresses only whether the individual’s criminal history

falls within the statute’s purview. See generally In re Joseph,

22 I. & N. Dec. 799 (B.I.A. 1999).

Section 1225(b) of Title 8 (“Section 1225(b)” or

“§ 1225(b)”), the other statute at issue here, applies to

“applicants for admission,” such as those apprehended at the

border or at a port of entry. 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. 8 U.S.C. § 1225(b)(2)(A); see also 8 U.S.C.

§ 1225(b)(1)(B)(iii)(IV) (providing for mandatory detention

of asylum seekers “pending a final determination of credible

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

removed.”). Although Section 1225(b) generally mandates

involving moral turpitude, an aggravated felony, a controlled substance

offense, certain firearm-related offenses, or certain other miscellaneous

crimes; aliens who are deportable on account of having committed a crime

of moral turpitude within a certain amount of time since their date of

admission for which a sentence of one year or longer has been imposed;

and aliens who are inadmissible or deportable because of 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)).

8 RODRIGUEZ V . ROBBINS

the detention of aliens seeking admission pending their

removal proceedings, individuals detained under the statute

may be eligible for discretionary parole from ICE custody.

See 8 U.S.C. § 1182(d)(5)(A).5 In the Central District of

California, detainees are notified that they will be reviewed

for parole and are asked to fill out a questionnaire and to

submit to an interview with ICE officers to probe their

suitability for parole. The agency considers the alien’s

potential dangerousness and criminal history, as well as flight

risk, in making parole determinations. If a detainee is denied

parole, he or she is notified orally and by a written form on

which the explanation for the denial is conveyed through a

checked box. Before the district court entered the preliminary

injunction, parole was the only possible release mechanism

available to most 1225(b) subclass members.

Appellees argue that prolonged mandatory detention

under these statutes without any possibility for review of the

government’s justification for their imprisonment by a neutral

5

Section 1182(d)(5)(A) provides:

The Attorney General may, except as provided in

subparagraph (B) or in section 1184(f) of this title, in

his discretion parole into the United States temporarily

under such conditions as he may prescribe only on a

case-by-case basis for urgent humanitarian reasons or

significant public benefit any alien applying for

admission to the United States, but such parole of such

alien shall not be regarded as an admission of the alien

and when the purposes of such parole shall, in the

opinion of the Attorney General, have been served the

alien shall forthwith return or be returned to the custody

from which he was paroled and thereafter his case shall

continue to be dealt with in the same manner as that of

any other applicant for admission to the United States.

RODRIGUEZ V . ROBBINS 9

arbiter would raise grave constitutional concerns. Thus,

relying on a related series of our decisions, Appellees

requested a preliminary injunction guaranteeing them, when

their detention exceeds six months in duration, an

individualized determination of whether their continued

detention is necessitated by any flight risk or possible danger

to the community. The government argues that both statutes

unambiguously require mandatory detention with no limit on

the duration of imprisonment and that the Supreme Court has

repeatedly affirmed the federal government’s constitutional

and statutory authority to require such detention. We agree

with the district court that, based on our precedent, the canon

of constitutional avoidance requires us to construe the

government’s statutory mandatory detention authority under

Section 1226(c) and Section 1225(b) as limited to a six-

month period, subject to a finding of flight risk or

dangerousness.

II.

“The district court’s grant of a preliminary injunction is

reviewed for abuse of discretion and should be reversed if the

district court based its decision on an erroneous legal standard

or on clearly erroneous findings of fact.” Stormans, Inc. v.

Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009) (internal

quotation marks omitted). “The district court’s interpretation

of the underlying legal principles, however, is subject to de

novo review.” Id. An overbroad injunction is an abuse of

discretion. Id.

III.

“A plaintiff seeking a preliminary injunction must

establish that he is likely to succeed on the merits, that he is

10 RODRIGUEZ V . ROBBINS

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.” Winter v. Natural Res.

Def. Council, Inc., 555 U.S. 7, 20 (2008). To determine

whether the district court abused its discretion in entering the

preliminary injunction, then, we consider in turn:

(1) Appellees’ likelihood of success on the merits;

(2) whether they have established a likelihood of irreparable

harm; (3) the balance of equities; and (4) where the public

interest lies.6

A. Likelihood of Success on the Merits

Appellees claim that the federal immigration detention

statutes must be construed to require “rigorous bond

6

The government suggests that Federal Rule of Civil Procedure 52(a)

requires us to reverse and remand because the district court failed to make

explicit findings of fact and conclusions of law in its order. Rule 52(a)

directs that “the court must find the facts specially and state its

conclusions of law separately.” W hile in general “[a] district court must

set forth findings of fact and conclusions of law supporting an order

granting an injunction,” we have held that “failure to comply with Rule

52(a) does not require reversal unless a full understanding of the question

is not possible without the aid of separate findings.” FTC v. Enforma

Natural Prods., Inc., 362 F.3d 1204, 1212 (9th Cir. 2004). In general, we

will remand only “where a district court’s findings and conclusions

supporting the preliminary injunction are not sufficient to permit

meaningful review.” Id. Here, by virtue of Appellees’ membership in the

subclasses at issue, the relevant facts are inherently undisputed: Each

Appellee has been held for at least six months under one of the pertinent

immigration detention statutes without an opportunity to contest his

detention in a bond hearing. As the government concedes, “[t]his case

presents, at its core, a question of statutory and constitutional

interpretation that does not turn on the facts of any individual Petitioner.”

The government offers no reason why meaningful review is not possible

on the current record.

RODRIGUEZ V . ROBBINS 11

hearings” for members of the 1226(c) and 1225(b) subclasses.

They urge that, because prolonged mandatory detention

without a bond hearing would raise grave constitutional

concerns, we must read the statutes in a way that permits the

possibility of release on review by a neutral decision-maker.

It is “a cardinal principle” of statutory interpretation that, “if

a serious doubt of constitutionality is raised” by one possible

construction of a statute, we must “ascertain whether a

construction of the statute is fairly possible by which the

question may be avoided.” Crowell v. Benson, 285 U.S. 22,

62 (1932). “The canon favoring constructions of statutes to

avoid constitutional questions does not, however, license a

court to usurp the policy-making and legislative functions of

duly-elected representatives.” Heckler v. Mathews, 465 U.S.

728, 741 (1984). Our task is therefore to determine whether

the government’s reading of Sections 1226(c) and 1225(b)

raises constitutional concerns and, if so, whether an

alternative construction is plausible without overriding the

legislative intent of Congress.

We begin 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.” 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. at 682. However,

the Supreme Court has also expressed a “longstanding view

that the Government may constitutionally detain deportable

aliens during the limited period necessary for their removal

proceedings.” Demore v. Kim, 538 U.S. 510, 526 (2003).

We therefore must determine whether the government’s

authority to mandatorily detain aliens under Sections 1226(c)

and 1225(b) for prolonged periods raises the constitutional

12 RODRIGUEZ V . ROBBINS

concerns identified by the Supreme Court in Zadvydas, or

whether such detention is consistent with Demore and,

thereby, permissible.

These are not entirely new questions for our court. As

noted by the previous panel that reversed the district court’s

denial of class certification, in a series of decisions since

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.” Rodriguez v. Hayes (Rodriguez I), 591 F.3d

1105, 1114 (9th Cir. 2010). After Zadvydas and Demore, we

held in Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005), that

the detention under § 1226(c) of a lawfully admitted resident

alien subject to removal for over 32 months was

“constitutionally doubtful.” Id. at 1242 (“Despite the

substantial powers that Congress may exercise in regard to

aliens, it is constitutionally doubtful that Congress may

authorize imprisonment of this duration for lawfully admitted

resident aliens who are subject to removal.”). “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. Thus, we

remanded Tijani’s petition to the district court with directions

to grant a writ of habeas corpus unless the government

provided a bail hearing within 60 days. Id.

We expanded on this reasoning in Casas-Castrillon v.

Department of Homeland Security (Casas), 535 F.3d 942 (9th

Cir. 2008). In Casas, a lawful permanent resident (“LPR”)

who had been detained for seven years sought habeas relief

while his petition for review of his removal order was

RODRIGUEZ V . ROBBINS 13

pending before this court. Id. at 944–45. We interpreted

Demore to hold “that § 1226(c) was intended only to

‘govern[] detention of deportable criminal aliens pending

their removal proceedings,’ which the Court emphasized

typically ‘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 BIA.” Id. at 948 (alteration

in original) (quoting Demore, 538 U.S. at 527-28, 530)

(emphasis omitted). Concluding that § 1226(c) applies

during only administrative removal proceedings (i.e., up until

the BIA dismisses an alien’s appeal but not during the

pendency of judicial review), we held “that Casas’ detention

was authorized during this period [while he awaited judicial

review] under the Attorney General’s general, discretionary

detention authority under § 1226(a).”7 Id. In other words,

7

Section 1226(a) provides:

On a warrant issued by the Attorney General, an alien

may be arrested and detained pending a decision on

whether the alien is to be removed from the United

States. Except as provided in subsection (c) of this

Section and pending such decision, the Attorney

General--

(1) may continue to detain the arrested alien; and

(2) may release the alien on--

(A) bond of at least $1,500 with security approved

by, and containing conditions prescribed by, the

Attorney General; or

(B) conditional parole; but

(3) may not provide the alien with work authorization

14 RODRIGUEZ V . ROBBINS

§ 1226(c)’s mandatory detention provisions apply only until

the BIA affirms a removal order, at which point the

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

where it remains until “we have rejected his final petition for

review or his time to seek such review expires.” Id.

Having concluded that Casas’ continued detention was

“authorized” under § 1226(a), we observed that “[t]here is a

difference between detention being authorized and being

necessary as to any particular person,” and thus held “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. We further noted that while

“[t]he Supreme Court upheld § 1226(c)’s mandatory

detention provision in Demore, [it] did so with the specific

understanding that § 1226(c) authorized mandatory detention

only for the ‘limited period of [the alien’s] removal

proceedings,’” which the Court emphasized was brief. Id. at

950 (alteration in original) (quoting Demore, 538 U.S. at

530). Because Demore’s holding hinged on the brevity of

mandatory detention, we concluded in Casas that “prolonged

detention of aliens is permissible only where the Attorney

General finds such detention individually necessary by

providing the alien with an adequate opportunity to contest

the necessity of his detention.” Id. at 951. We thus held that,

under § 1226(a)’s discretionary detention regime, a bond

(including an “employment authorized” endorsement or

other appropriate work permit), unless the alien is

lawfully admitted for permanent residence or otherwise

would (without regard to removal proceedings) be

provided such authorization.

RODRIGUEZ V . ROBBINS 15

hearing is required before the government may detain an alien

for a “prolonged” period. Id.

Two questions left unanswered by our opinion in

Casas—the procedural requirements for bond hearings under

Casas and the precise definition of “prolonged”

detention—have been answered in more recent opinions.

First, in Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011), we

provided guidance to immigration officials as to the

procedures required at a Casas hearing. With regard to the

appropriate burden of proof, we held that, “[g]iven the

substantial liberty interest at stake . . . 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.” Singh, 638 F.3d at 1203. We

further held that, in considering whether the government has

proven dangerousness, IJs should consider the factors

identified in In re Guerra, 24 I. & N. Dec. 37 (B.I.A. 2006),

which include the extensiveness of an alien’s criminal record,

the recency of his criminal activity, and the seriousness of his

offenses. Singh, 638 F.3d at 1206 (citing Guerra, 24 I. & N.

Dec. at 40). We also held that “due process requires a

contemporaneous record of Casas hearings,” such as a

transcript or an audio recording available upon request. Id. at

1208.

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

(9th Cir. 2011), we addressed the definition of “prolonged”

detention for purposes of the Casas bond hearing

requirement. Diouf II first extended the holding of Casas to

16 RODRIGUEZ V . ROBBINS

aliens discretionarily detained under 8 U.S.C. § 1231(a)(6).8

Id. at 1086. Rejecting the government’s proferred bases for

distinguishing Casas, see id., 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. Importantly, we indicated that an

“alien’s continuing detention becomes prolonged” at the 180-

day mark. Id. at 1091.

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.

With this precedent in mind, we address Appellees’

likelihood of success on the merits. Because the legal

8

Section 1231(a)(6) permits the continued detention, beyond the 90-day

statutory removal period that begins when a removal order becomes final,

of “inadmissible aliens, criminal aliens, aliens who have violated their

nonimmigrant status conditions, and aliens removable for certain national

security or foreign relations reasons, as well as any alien ‘who has been

determined by the Attorney General to be a risk to the community or

unlikely to comply with the order of removal.’” Zadvydas, 533 U.S. at

688 (quoting 8 U.S.C. § 1231(a)(6)).

RODRIGUEZ V . ROBBINS 17

considerations applicable to the 1226(c) and 1225(b)

subclasses differ in some respects, we separately analyze

Appellees’ likelihood of success with respect to each

subclass.

1. The 1226(c) subclass.

In addressing Section 1226(c), we do not write on a blank

slate. In Demore, an LPR who conceded deportability as an

aggravated felon raised a due process challenge to his

mandatory detention under § 1226(c). Demore, 538 U.S. at

517–18, 523. The Supreme Court first reviewed at some

length Congress’s stated reasons for mandating detention of

the aliens to whom Section 1226(c) applies, emphasizing

concerns about flight and recidivism under the prior regime.

Id. at 518–21. Ultimately, the Demore majority held that the

government was not required to provide individualized

determinations of an alien’s dangerousness or flight risk to

detain him during his removal proceedings. See id. at

523–25. Noting that the Zadvydas Court had already held

that the government’s authority to detain an alien indefinitely

pending removal would be constitutionally doubtful, the

Demore majority distinguished Zadvydas on two principal

grounds. Id. at 527 (citing Zadvydas, 533 U.S. at 699). First,

while in Zadvydas the petitioners challenged their indefinite

detention under circumstances where removal was not

practicable, thus undermining the government’s interest in

preventing flight, see id. (citing Zadvydas, 533 U.S. at 690),

detention under Section 1226(c) “necessarily serves the

purpose of preventing deportable criminal aliens from fleeing

prior to or during their removal proceedings, thus increasing

the chance that, if ordered removed, the aliens will be

successfully removed.” Id. at 528. Second, Demore

emphasized that unlike the detention at issue in Zadvydas,

18 RODRIGUEZ V . ROBBINS

which had no clear termination point, Section 1226(c) applies

only during the pendency of removal proceedings and thus

has an inherent end point—the conclusion of proceedings:

Under § 1226(c), not only does detention have

a definite termination point, in the majority of

cases it lasts for less than the 90 days we

considered presumptively valid in Zadvydas.

The Executive Office for Immigration Review

has calculated that, in 85% of the cases in

which aliens are detained pursuant to

§ 1226(c), removal proceedings are completed

in an average time of 47 days and a median of

30 days . . . . In the remaining 15% of cases,

in which the alien appeals the decision of the

Immigration Judge to the Board of

Immigration Appeals, appeal takes an average

of four months, with a median time that is

slightly shorter.

Id. at 529 (footnote and citations omitted). The Court thus

upheld mandatory detention under § 1226(c), though the

concurring opinion of Justice Kennedy—whose vote created

a majority—noted 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 (Kennedy, J., concurring) (citing Zadvydas, 533 U.S.

at 684–86).

We have addressed the question of how broadly Demore

sweeps in several decisions over the past decade. On each of

these occasions, we have consistently held that Demore’s

holding is limited to detentions of brief duration. See, e.g.,

RODRIGUEZ V . ROBBINS 19

Casas, 535 F.3d at 950 (“References to the brevity of

mandatory detention under § 1226(c) run throughout

Demore.”); Tijani, 430 F.3d at 1242 (similar); Nadarajah v.

Gonzales, 443 F.3d 1069, 1081 (9th Cir. 2006) (“In Demore,

the Court grounded its holding by referencing a ‘brief period’

. . . of ‘temporary confinement’ . . . . There is no indication

anywhere in Demore that the Court would countenance an

indefinite detention.”) (citations omitted). We are by no

means the only court to interpret Demore in this way. For

instance, in Diop v. ICE/Homeland Security, 656 F.3d 221

(3d Cir. 2011), the Third Circuit construed Demore, in light

of Justice Kennedy’s concurrence, as recognizing that “the

constitutionality of [mandatory detention] is a function of the

length of the detention.” Id. at 232 (“At a certain point,

continued detention becomes unreasonable and the Executive

Branch’s implementation of § 1226(c) becomes

unconstitutional unless the Government has justified its

actions at a hearing inquiring into whether continued

detention is consistent with the law’s purposes of preventing

flight and dangers to the community.”); see also Ly v.

Hansen, 351 F.3d 263, 271 (6th Cir. 2003) (“[T]he Court’s

discussion in Kim is undergirded by reasoning relying 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. That is not the

case here.”).

Thus, it is clear that while mandatory detention under

§ 1226(c) is not constitutionally impermissible per se, the

statute cannot be read to authorize mandatory detention of

criminal aliens with no limit on the duration of imprisonment.

As we held in Casas, “the prolonged detention of an alien

without an individualized determination of his dangerousness

or flight risk would be constitutionally doubtful.” 535 F.3d

20 RODRIGUEZ V . ROBBINS

at 951 (internal quotation marks omitted). Consistent with

our previous decisions, we conclude that, to avoid

constitutional concerns, § 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.” Zadvydas, 533 U.S. at 682.

The government relies heavily on Demore in advancing

several arguments that the entry of the preliminary injunction

was improper, but none is ultimately persuasive. First, the

government directs us to the statutory history of §1226(c),

arguing that by enacting the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (“IIRIRA”), Congress

intentionally undid provisions of the 1990 and 1991

amendments to the Immigration and Nationality Act (“INA”)

that previously granted some discretion to the Attorney

General to release criminal aliens pending removal. The

government cites Demore’s observation that Congress’s

enactment of § 1226(c) hinged on its determination that the

flight of aliens released pending removal proceedings, and

crimes perpetrated with frequency by those who absconded

under the prior regime, were undermining national

immigration policy. See Demore, 538 U.S. at 518–19.

Moreover, the government argues that the statute’s use of the

mandatory “shall” plainly contemplates mandatory detention

without a bond hearing. It notes that § 1226(a), which was

enacted contemporaneously with § 1226(c), uses

discretionary language and that § 1226(c)(2) provides for

narrow exceptions to mandatory detention for criminal aliens

who materially assist law enforcement. These statutes, the

government contends, indicate that Congress knew how to

provide for release on bond if it wished to do so. Finally, the

government argues that under Zadvydas and Demore,

mandatory detention under 1226(c) without a bond hearing is

RODRIGUEZ V . ROBBINS 21

permissible because such detention has a definite termination

point.

We are not convinced by the government’s reasoning,

which relies on a broad reading of Demore foreclosed by our

post-Demore cases. Despite the Supreme Court’s holding

that mandatory detention under § 1226(c) without an

individualized determination of dangerousness or flight risk

is constitutional under some circumstances, our subsequent

decisions applying Demore make clear that Demore’s reach

is limited to relatively brief periods of detention. See Casas,

535 F.3d at 951. Nothing about the district court’s

preliminary injunction order requires reading the mandatory

detention requirement out of § 1226(c), because “the

mandatory, bureaucratic detention of aliens under § 1226(c)

was intended to apply for only a limited time,” after which

“the Attorney General’s detention authority rests with

§ 1226(a).” Id. at 948. In other words, the preliminary

injunction does not require that anyone held under § 1226(c)

receive a bond hearing. Rather, under a fair reading of our

precedent, when detention becomes prolonged, § 1226(c)

becomes inapplicable. “As a general matter, detention is

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. Therefore, subclass members who

have been detained under § 1226(c) for six months are

entitled to a bond hearing because the applicable statutory

law, not constitutional law, requires one. Thus, while the

government may be correct that reading §1226(c) as anything

other than a mandatory detention statute is not a “plausible

interpretation[] of [the] statutory text,” Clark v. Martinez,

543 U.S. 371, 381 (2005), it does not argue that reading an

implicit temporal limitation on mandatory detention into the

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

22 RODRIGUEZ V . ROBBINS

such an argument is foreclosed by our decisions in Tijani and

Casas.

The government’s attempts to distinguish our post-

Demore authority are unavailing. It is certainly true, as the

government notes, that by its terms Casas concerned an alien

who had received an administratively final removal order,

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

thus, it did not expressly apply to aliens awaiting the

conclusion of their initial administrative proceedings. But

this seems to us a distinction without a difference, and the

government does not present a persuasive reason why the

same protections recognized in Casas should not apply to

pre-removal order detainees. “Regardless of the stage of the

proceedings, the same important interest is at stake—freedom

from prolonged detention.” Diouf II, 634 F.3d at 1087.

Indeed, if anything, because LPRs detained prior to the entry

of an administratively final removal order have not been

adjudicated removable, they would seem to have a greater

liberty interest than individuals detained pending judicial

review or the pendency of a motion to reopen before the

agency, and thus a greater entitlement to a bond hearing. See

id. at 1086–87 (suggesting that a detainee who is subject to a

final order of removal may have a “lesser liberty interest in

freedom from detention”).

The government is likewise correct that Diouf II by its

terms addressed detention under § 1231(a)(6), not § 1226(c)

or § 1225(b). But Diouf II strongly suggested that

immigration detention becomes prolonged at the six-month

mark regardless of the authorizing statute. See, e.g., id. at

1091–92 (“When detention crosses the six-month threshold

and release or removal is not imminent, the private interests

at stake are profound.”). Even if Diouf II does not squarely

RODRIGUEZ V . ROBBINS 23

hold that detention always becomes prolonged at six months,

that conclusion is consistent with the reasoning of Zadvydas,

Demore, Casas and Diouf II, and we so hold.

The government’s remaining argument against what it

calls “a six-month blanket rule” is that such a rule would be

contrary to the decisions of other circuits and to the principle

that due process inherently must be determined through case-

by-case adjudication. Neither contention is compelling.

First, the government cites the Sixth Circuit’s decision in Ly,

351 F.3d at 271–73, and the Third Circuit’s decision in Diop,

656 F.3d at 234, both of which declined to establish a bright-

line time limit on detention without a bond hearing. But both

Diop and Ly held that there are substantive limits on the

length of detention under § 1226(c), and those cases are thus

contrary to the government’s position that Demore permits

mandatory detention under § 1226(c) irrespective of duration.

To the extent Diop and Ly reject a categorical time limit, their

reasoning in that respect is inapplicable here, both because

this petition is a class action (and thus relief will perforce

apply to all detainees) and because we already indicated in

Diouf II that detention is presumptively prolonged when it

surpasses six months in duration. More fundamentally, the

preliminary injunction does not, as the government claims,

“embrace an inflexible blanket approach to due process

analysis.” Rather, the injunction requires individualized

decision-making—in the form of bond hearings that conform

to the procedural requirements set forth in Singh. Thus, the

1226(c) subclass members are likely to succeed on the merits.

2. The 1225(b) subclass.

We next address whether the prolonged detention of

“applicants for admission” under Section 1225(b) raises the

24 RODRIGUEZ V . ROBBINS

same “serious constitutional concerns” that are implicated by

prolonged detention of other detained aliens. The

government argues that the 1225(b) subclass members enjoy

lesser constitutional protections than other detained aliens.

Of course, if the statute does not raise constitutional concerns,

then there is no basis for employing the canon of

constitutional avoidance. See Ma v. Ashcroft, 257 F.3d 1095,

1106–07 (9th Cir. 2001).

The government emphasizes the “unique constitutional

position of arriving aliens” to argue that prolonged detention

of 1225(b) subclass members does not implicate

constitutional concerns. This argument relies principally on

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

206 (1953) and Barrera-Echavarria v. Rison, 44 F.3d 1441

(9th Cir. 1995) (en banc), superseded by statute as stated in

Xi v. I.N.S., 298 F.3d 832, 837–38 (9th Cir. 2002)). In Mezei,

the Supreme Court rejected a constitutional challenge to the

multi-year detention on Ellis Island of an LPR returning from

a 19-month trip abroad. See 345 U.S. at 214. Adverting to

the now-defunct statutory distinction between “exclusion”

and “deportation” proceedings, the Court held that:

[A]liens who have once passed through our gates,

even illegally, may be expelled only after proceedings

conforming to traditional standards of fairness

encompassed in due process of law . . . . But an alien

on the threshold of initial entry stands on a different

footing: Whatever the procedure authorized by

Congress is, it is due process as far as an alien denied

entry is concerned.

Id. at 212 (internal quotation marks and citations omitted). In

Barrera-Echavarria, we applied Mezei to uphold the

RODRIGUEZ V . ROBBINS 25

constitutionality of prolonged detention of excludable aliens

under the pre-IIRIRA version of 8 U.S.C. § 1226(e). 44 F.3d

at 1448. We held that the “entry fiction” doctrine, as

explained by the Supreme Court, “squarely precludes a

conclusion that [excludable aliens] have a constitutional right

to be free from detention, even for an extended time.” Id. at

1449.

It seems clear that many, if not most, members of the

1225(b) subclass would fall into the category of aliens

described in Mezei and Barrera-Echavarria as entitled to

limited due process protection. See Barrera-Echavarria,

44 F.3d at 1450 (“Mezei established what is known as the

‘entry fiction,’ which provides that although aliens seeking

admission into the United States may physically be allowed

within its borders pending a determination of admissibility,

such aliens are legally considered to be detained at the border

and hence as never having effected entry into this country

. . . . Noncitizens who are outside United States territories

enjoy very limited protections under the United States

Constitution.”) (emphasis added) (internal quotations and

citations omitted). Nonetheless, we have reason to question

whether Mezei and Barrera-Echavarria are squarely apposite

to the inquiry before us.

First, both cases were decided under pre-IIRIRA law.

Because the cases apply to the former category of

“excludable aliens,” it is not clear that the class of aliens to

whom Mezei and Barrera-Echavarria applied is coextensive

with the 1225(b) subclass in this case. As we explained in Xi:

The INA is no longer denominated in terms of

“entry” and “exclusion.” IIRIRA replaced

these terms with the broader concept of

26 RODRIGUEZ V . ROBBINS

“admission.” Section 1101(a)(13), which

formerly defined “entry” as “any coming of

an alien into the United States, from a foreign

port or place . . . ,” 8 U.S.C. [§] 1101(a)(13)

(1994), now defines “admission” to mean “the

lawful entry of [an] alien into the United

States after inspection and authorization by an

immigration officer,” 8 U.S.C. [§]

1101(a)(13)(A) (2002). Concomitantly,

IIR IR A dropped the concept of

“excludability” and now uses the defined term

of “inadmissibility.” Although the grounds for

being deemed inadmissible are similar to

those for being deemed excludable, compare

8 U.S.C. § 1182 (1994) with 8 U.S.C. § 1182

(2002), there are substantial differences

between the two statutes.

298 F.3d at 838. Of course, this does not undermine Barrera-

Echavarria’s reasoning as it relates to aliens in the 1225(b)

subclass to whom the entry fiction clearly applies (likely the

vast majority). But 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. See

Clark, 543 U.S. at 380 (2005) (“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.”). Thus, the dispositive question is not

whether the government’s reading of § 1225(b) is permissible

in some (or even most) cases, but rather whether there is any

RODRIGUEZ V . ROBBINS 27

single application of the statute that calls for a limiting

construction.9

Under current law, § 1225(b) applies to some LPRs

returning from abroad who have not been absent for the

prolonged period described in Mezei. See 8 U.S.C.

§ 1101(a)(13)(C) (setting forth six categories of LPRs who

may be treated as seeking admission, only one of which

9

At oral argument, government counsel contended that the district court

record is devoid of any evidence suggesting that members of the 1225(b)

subclass include returning LPRs. This argument reveals a fundamental

misunderstanding of class actions litigated under Rule 23(b)(2) of the

Federal Rules of Civil Procedure, including this one. See Rodriguez I,

591 F.3d at 1125–26. “The key to the (b)(2) class is ‘the indivisible nature

of the injunctive or declaratory remedy warranted— the notion that the

conduct is such that it can be enjoined or declared unlawful only as to all

of the class members or as to none of them.’” Wal-Mart Stores, Inc. v.

Dukes, 131 S. Ct. 2541, 2557 (2011) (quoting Richard A. Nagareda, Class

Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132

(2009)). It would be illogical for us to conclude that the government’s

reading of the statute is permissible just because, by happenstance, there

are currently no detainees in the Central District who possess the requisite

constitutional status to render ICE’s preferred practice illegal. Nor could

we countenance such a result in light of the Supreme Court’s admonition

that, “when deciding which of two plausible statutory constructions to

adopt, a court must consider the necessary consequences of its choice. If

one of them would raise a multitude of constitutional problems, the other

should prevail—whether or not those constitutional problems pertain to

the particular litigant before the Court.” Clark, 543 U.S. at 380–81. In

other words, if the canon of constitutional avoidance requires us to read

the statute such that bond hearings are available to individuals who have

been detained for six months, then under Clark such hearings must be

available to everyone detained under the statute.

28 RODRIGUEZ V . ROBBINS

relates to prolonged absences from U.S. territory).10 “It is

well established that if an alien is a lawful permanent resident

of the United States and remains physically present there, he

is a person within the protection of the Fifth Amendment,”

and an LPR whose absence is not prolonged is assimilated to

that same constitutional status. Kwong Hai Chew v. Colding,

344 U.S. 590, 596 (1953). For instance, an LPR who left the

United States briefly to undertake illegal activity abroad, such

10

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

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

admitted to the United States after inspection and

authorization by an immigration officer.

RODRIGUEZ V . ROBBINS 29

as alien smuggling, would clearly be included in the 1225(b)

subclass; under 8 U.S.C. § 1101(a)(13)(C)(iii), he would be

treated as an alien seeking admission on account of having

“engaged in illegal activity after having departed the United

States.” See United States v. Tsai, 282 F.3d 690, 696 & n.5

(9th Cir. 2002). But in Landon v. Plasencia, 459 U.S. 21

(1982), the Supreme Court specifically held that an LPR

arrested for alien smuggling upon return from a brief trip

abroad is entitled to due process protection, specifically

because Mezei is inapplicable in such a scenario. See id. at 34

(holding that Mezei “did not suggest that no returning resident

alien has a right to due process,” and that “it does not govern

this case, for Plasencia was absent from the country only a

few days”). As such, it is clear that the 1225(b) subclass

includes at least some aliens who are not subject to the entry

fiction doctrine, and thus under Clark the statute must be

construed with these aliens in mind.11

This conclusion is buttressed by the fact that the

government’s position is facially inconsistent with our

binding holding in Nadarajah. Nadarajah concerned an

asylum seeker who had been granted relief but who remained

detained pending review of his case by the Attorney General.

443 F.3d at 1071–75. Although we examined Nadarajah’s

claims under the paradigm of Zadvydas, and therefore

considered only the possibility of “indefinite” (as opposed to

“prolonged”) detention, we nonetheless held that § 1225(b)

is susceptible to a saving construction to avoid constitutional

11

This analysis also disposes of the government’s reliance on Alvarez-

Garcia v. Ashcroft, 378 F.3d 1094 (9th Cir. 2004), which involved an

individual petition for review brought by an alien who entered the United

States without inspection and thus clearly was subject to the doctrine

described in Mezei and Barrera-Echavarria. See id. at 1095, 1097–98.

30 RODRIGUEZ V . ROBBINS

concerns. See id. at 1076–78. While this analysis does not

directly answer the central question presented by this appeal,

i.e. whether bond hearings are required at the six month mark,

it does undermine the government’s arguments in two

important respects. First, the government argues that

§ 1225(b) is too unambiguous for the doctrine of

constitutional avoidance to apply. But it is not clear how this

could be so in light of Nadarajah, where we have already

applied the canon to this very statute. Second, and relatedly,

the government’s argument that there is no due process

“floor” for the treatment of aliens subject to §1225(b) is

difficult to reconcile with a binding decision that already

construed the statute expressly to avoid constitutional

concerns. Thus, read together, Plasencia, Clark, and

Nadarajah suggest that we must construe § 1225(b) to avoid

potential constitutional concerns raised by its application to

LPRs who enjoy due process protection.

With this premise in place, the likelihood of success of

the 1225(b) subclass is determined by the same analysis

applicable to the 1226(c) subclass, which we conclude has

demonstrated a likelihood of success. To the extent our

holdings in Tijani, Casas, and Diouf II require that we

construe mandatory immigration detention authority as time-

limited and that bond hearings occur when detention becomes

“prolonged,” there is no basis for distinguishing between the

two sub-classes in this regard. Indeed, if anything it would

appear that the LPRs who fall within § 1225(b)’s purview

should enjoy greater constitutional protections than criminal

aliens who have already failed to win relief in their removal

proceedings, as in Casas. See Johnson v. Eisentrager,

339 U.S. 763, 770 (1950) (“The alien, to whom the United

States has been traditionally hospitable, has been accorded a

generous and ascending scale of rights as he increases his

RODRIGUEZ V . ROBBINS 31

identity with our society. Mere lawful presence in the

country creates an implied assurance of safe conduct and

gives him certain rights; they become more extensive and

secure when he makes preliminary declaration of intention to

become a citizen, and they expand to those of full citizenship

upon naturalization.”).

Appellees suggest two potential ways we could apply the

canon of constitutional avoidance in construing § 1225(b).

First, we could simply read a bond hearing requirement into

the statute, as we did with regard to § 1231(a)(6) in the Diouf

opinions. See Diouf II, 634 F.3d at 1089; Diouf v. Mukasey

(Diouf I), 542 F.3d 1222, 1234 (9th Cir. 2008) (“We have

specifically construed § 1231(a)(6) to permit release on

bond.”) (citing Doan v. I.N.S., 311 F.3d 1160, 1162 (9th Cir.

2002)). This first suggestion, however, is problematic. For

one thing, this reading would conflict with Department of

Homeland Security regulations, at least as applied to some

subclass members, because current regulations

unambiguously strip IJs of the authority to “redetermine

conditions of custody imposed by the Service with respect to”

arriving aliens. See 8 C.F.R. § 1003.19(h)(2)(i)(B).

Moreover, it is difficult to distinguish the statute’s language

from that of § 1226(c), which also provides that aliens who

fall within its scope “shall” be detained and which the

Supreme Court has characterized as mandating detention.

See Demore, 538 U.S. at 513–14; compare 8 U.S.C.

§ 1226(c)(1) (“The Attorney General shall take into custody

any alien who . . . .”), with id. § 1225(b)(2)(A) (“[I]f 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 . . . .”). Appellees

argue that the existence of the parole scheme itself

undermines the government’s mandatory construction of the

32 RODRIGUEZ V . ROBBINS

statute, but § 1226(c) also contains a statutory exception to

mandatory detention. See 8 U.S.C. § 1226(c)(2) (“The

Attorney General may release an alien described in paragraph

(1) only if the Attorney General decides . . . that release of the

alien from custody is necessary to provide protection to a

witness, a potential witness, a person cooperating with an

investigation into major criminal activity, or an immediate

family member or close associate of a witness, potential

witness, or person cooperating with such an investigation, and

the alien satisfies the Attorney General that the alien will not

pose a danger to the safety of other persons or of property and

is likely to appear for any scheduled proceeding.”). If

anything, the existence of these narrow and explicit

exceptions to both statutes’ reach is evidence of their drafters’

intent to make detention mandatory in all cases to which the

exceptions are inapplicable. Thus, Appellees’ first suggested

construction is not a “fairly possible” reading of the statute as

required for the canon of constitutional avoidance to apply.

Appellees’ second suggested construction fares

considerably better. Under this approach, we would simply

follow Casas and hold that, to the extent detention under

§1225(b) is mandatory, it is implicitly time-limited. This

approach fits more naturally into our case law, which has

suggested that after Demore, brief periods of mandatory

immigration detention do not raise constitutional concerns,

but prolonged detention—specifically longer than six

months—does. This reading also has the advantage of

uniformity, which the Supreme Court has suggested is an

important value in matters of statutory construction. Cf.

Zadvydas, 533 U.S. at 680 (“In order to limit the occasions

when courts will need to make the difficult judgments called

for by the recognition of this necessary Executive leeway, it

is practically necessary to recognize a presumptively

RODRIGUEZ V . ROBBINS 33

reasonable period of detention . . . . [F]or the sake of uniform

administration in the federal courts, six months is the

appropriate period.”). Of course, 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 alien would shift to § 1226(a), which is discretionary and

which we have already held requires a bond hearing. See

Casas, 535 F.3d at 948.

Finally, we note that the discretionary parole system

available to § 1225(b) detainees is not sufficient to overcome

the constitutional concerns raised by prolonged mandatory

detention. Indeed, any argument to that effect is clearly

foreclosed by our holding in Singh, which held that bond

hearings must be held before a neutral IJ with the government

bearing the burden of proof by clear and convincing evidence.

See 638 F.3d at 1203–04. The parole process is purely

discretionary and its results are unreviewable by IJs. Cf.

Casas, 535 F.3d at 949 (“We hold 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.”

(emphasis added)). Moreover, release decisions are based on

humanitarian considerations and the public interest, see

8 U.S.C. § 1182(d)(5)(A), not whether the alien “is a flight

risk or will be a danger to the community.” Singh, 638 F.3d

at 1203 (quoting Casas, 535 F.3d at 951). To the extent the

principles of Tijani, Casas and Diouf II are applicable to the

1225(b) subclass, the constitutionally grounded hearing

requirements set forth in Singh are also applicable. The

government does not, and could not, contend that

discretionary parole satisfies Singh. Thus, Appellees are

likely to succeed on the merits of their claim that § 1225(b)

34 RODRIGUEZ V . ROBBINS

must be construed to authorize only six months of mandatory

detention, after which detention is authorized by § 1226(a)

and a bond hearing is required.

B. Irreparable Harm

Having determined that Appellees are likely to succeed on

the merits, we consider the remaining Winter factors. We

conclude that, here too, the Winter factors favor Appellees.

Appellees clearly face irreparable harm in the absence of

the preliminary injunction. “It is well established that the

deprivation of constitutional rights ‘unquestionably

constitutes irreparable injury.’” Melendres v. Arpaio,

695 F.3d 990, 1002 (9th Cir. 2012) (quoting Elrod v. Burns,

427 U.S. 347, 373 (1976)). Thus, it follows from our

conclusion that the government’s reading of Sections 1226(c)

and 1225(b) raises serious constitutional concerns “that

irreparable harm is likely, not just possible” in the absence of

preliminary injunctive relief. Alliance for the Wild Rockies

v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).

There is no dispute that at least some individuals who

would be detained if not provided a bond hearing will be

granted conditional release under this injunction. Moreover,

the government does not dispute that some subclass members

detained under § 1225(b) and § 1226(c) will win relief from

removal, further undermining any purported rationale for

continued detention. Thus, the preliminary injunction is

necessary to ensure 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. Appellees have therefore clearly

shown a risk of irreparable harm.

RODRIGUEZ V . ROBBINS 35

C. Balance of the Equities

The government provides almost no evidence that it

would be harmed in any way by the district court’s order,

other than its assertion that the order enjoins “presumptively

lawful” government activity and is contrary to the plain

meaning of the statutes. These arguments are obviously

premised on the government’s view of the merits because it

cannot suffer harm from an injunction that merely ends an

unlawful practice or reads a statute as required to avoid

constitutional concerns. Cf. Zepeda v. I.N.S., 753 F.2d 719,

727 (9th Cir. 1983) (“[T]he INS cannot reasonably assert that

it is harmed in any legally cognizable sense by being enjoined

from constitutional violations.”).12 Thus, in light of the major

hardship posed by needless prolonged detention, we conclude

that the balance of the equities favors Appellees.

D. The Public Interest

The government claims that “the government’s interest is

presumed to be the ‘public’s interest’ in this case.” It

12

The government also contends that Appellees delayed in bringing their

motion for a preliminary injunction. See Oakland Tribune, Inc. v.

Chronicle Publ’g Co., 762 F.2d 1374, 1377 (9th Cir. 1985) (“Plaintiff’s

long delay before seeking a preliminary injunction implies a lack of

urgency and irreparable harm.”). But the government identifies no

prejudice that it has suffered as a result of this delay, and in any event the

district court did not abuse its discretion by declining to withhold

preliminary relief from a constitutionally suspect government practice on

the basis that an injunction should have been requested sooner. Moreover,

as Appellees point out, the government declined to seek certiorari in Diouf

II— on which Appellees’ motion relied— only in February of 2012. The

parties thereafter engaged in settlement negotiations, which apparently

stalled in March. Thus, Appellees’ June 2012 preliminary injunction

motion was not particularly belated.

36 RODRIGUEZ V . ROBBINS

contends that the public interest is undermined by the heavy

burden the injunction places on administrative resources and

by the government’s potential inability to prepare for bond

hearings in time to comply with the district court’s order. But

the government’s arguments are flawed in several respects.

First, it cites Nken v. Holder, 556 U.S. 418 (2009), for the

general proposition that the public interest always militates

against enjoining government practices. But Nken does not

contain any such holding. While the Court observed that

there is “always a public interest in prompt execution of

removal orders,” which “may be heightened by the

circumstances . . . if, for example, the alien is particularly

dangerous, or has substantially prolonged his stay by abusing

the processes provided to him,” id. at 436, it did not purport

to create a blanket presumption in favor of the government in

all preliminary injunction cases. Moreover, the bond hearings

that this injunction requires are intended to determine

precisely whether each individual alien is dangerous or a

flight risk and to permit the conditional release only of those

who are not. By its terms, the injunction does not require the

government to release anyone. Thus, Nken does not support

the government’s position.

The government’s arguments regarding the resources

required to implement the injunction are also not compelling.

Hundreds of hearings have already occurred under the district

court’s order, belying any suggestion that the preliminary

injunction is prohibitively burdensome. Moreover, even if

the government faced severe logistical difficulties in

implementing the order—a premise that Appellees

dispute—they would merely represent the burdens of

complying with the applicable statutes, as construed to avoid

practices occasioned by an interpretation of the statutes that

risks running afoul of the Constitution. “Generally, public

RODRIGUEZ V . ROBBINS 37

interest concerns are implicated when a constitutional right

has been violated, because all citizens have a stake in

upholding the Constitution.” Preminger v. Principi, 422 F.3d

815, 826 (9th Cir. 2005). It stands to reason that the public

interest also benefits from a preliminary injunction that

ensures that federal statutes are construed and implemented

in a manner that avoids serious constitutional questions.

IV.

Contrary to the government’s rhetoric, this injunction will

not flood our streets with fearsome criminals seeking to

escape the force of American immigration law. The district

court’s narrowly tailored order provides individuals, whose

right to be present in the United States remains to be decided,

a hearing where a neutral decision-maker can determine

whether they might deserve conditional release from the

prison-like setting where they might otherwise languish for

months or years on end. These hearings simply ensure that

“the nature and duration of commitment bear some

reasonable relation to the purpose for which the individual is

committed.” Jackson v. Indiana, 406 U.S. 715, 738 (1972).

“[F]reedom from physical restraint ‘has always been at

the core of the liberty protected by the Due Process Clause

from arbitrary governmental action.’” Kansas v. Hendricks,

521 U.S. 346, 356 (1997) (quoting Foucha v. Louisiana,

504 U.S. 71, 80 (1992)). While ICE is entitled to carry out its

duty to enforce the mandates of Congress, it must do so in a

manner consistent with our constitutional values.

AFFIRMED.