Aleman Gonzalez v. Whitaker

Background

The court had previously certified a class of individuals detained under 8 U.S.C. § 1231(a)(6) in the Ninth Circuit by, or under the authority of, U.S. Immigration and Customs Enforcement. The class covered people who had reached, or would reach, six months in detention and had been, or would be, denied a prolonged detention bond hearing before an immigration judge. A later clarification limited the class to people with live claims before an adjudicative body challenging their removal.

The court’s June 2018 preliminary injunction barred the defendants from detaining plaintiffs and class members under § 1231(a)(6) for more than 180 days without a bond hearing before an immigration judge. In March 2019, the court required the defendants to provide periodic reports, called Class Lists, containing information about class members, including detention dates, facilities, attorneys, bond-hearing dates, and bond-decision outcomes. The defendants also had to explain their methods for identifying class members and ensuring that they received hearings.

Plaintiffs moved to enforce the March 2019 order and amend the June 2018 order. They sought requirements that bond hearings be scheduled within seven days after a class member’s 180th day in detention, that notice of scheduled hearings be sent by the person’s 165th day, and that delays of seven days or more be explained. They also renewed their request for notices about the injunction to be posted in immigration detention facilities. Separately, plaintiffs sought additional information about how the defendants identified class members and implemented the injunction.

Amending the June 2018 Order

The court denied the request to require notice by the 165th day because a detainee did not become a class member until reaching the 180th day of detention. The court also declined to require hearings within seven days after the 180th day. The defendants showed that, during the relevant 12-month period, 88 percent of class members received hearings within 15 days of becoming eligible. The court found that this did not demonstrate a pattern of failing to identify class members or schedule timely hearings, although the record showed some delays caused by data errors, clerical errors, and requests for continuances.

The court nevertheless amended the June 2018 order to require an explanation whenever a class member’s bond hearing was not held within 15 days after the person’s 180th day in detention. The explanation could be included in the cover email accompanying a Class List.

The court granted the request to require posted notices. The defendants’ submissions showed that some hearings had been delayed by more than a month, and one had been delayed by more than three months, because of data or clerical errors. The court concluded that posting the proposed notice would alert class members to their rights and help reduce delays, and that this limited burden was outweighed by the risk of delaying a class member’s right to a hearing. The defendants were ordered to post the notice in all immigration detention facilities in the Ninth Circuit within 30 days, with revised language stating that the person must be detained under § 1231(a)(6) and have a live claim challenging detention.

Enforcing the March 2019 Order

Plaintiffs argued that the Class Lists failed to provide bond outcomes for 197 class members. The lists used entries including “No Bond,” “No Action,” “No Change,” “New Amount,” “Own Recognizance,” and “No Jurisdiction.” The court held that “No Change” was a sufficient bond-decision outcome because it showed that the immigration judge left the person’s existing custody terms unchanged.

The court agreed, however, that “No Action” was not a sufficient outcome without additional information. That entry did not show why no action was taken, whether the person had been scheduled for another hearing, or whether a later hearing produced an actual outcome. The defendants were ordered to provide an updated list showing the actual outcome for every class member whose entry was “No Action.” Future Class Lists had to include clarifying information for every such entry, including whether the person had been rescheduled and, if so, the date of the later hearing. The person was then to appear on the Class List covering the period when an actual bond outcome was received.

The court denied the request for additional information about the defendants’ class-identification procedures and injunction implementation. It found that the April 2019 report and supporting declarations sufficiently described the criteria and processes used to identify class members, review cases, provide notice, and reduce the risk that a class member would be missed. The court also denied the request for attorney oversight of each potential class-membership list because plaintiffs had not shown a pattern of noncompliance warranting that relief.

Sealing Motions and Disposition

The court granted the parties’ administrative motions to seal in full. The sealed information consisted of the names and alien-registration numbers of absent class members who had not publicly disclosed or authorized disclosure of that information. The court found compelling reasons for sealing because the information did not bear on the merits, many affected individuals were seeking asylum or involved in withholding-only proceedings, and disclosure could create a risk of harm.

The court granted in part and denied in part plaintiffs’ motion. It amended the June 2018 order as described above, required updated and clarified reporting for “No Action” entries, and denied the motion in all other respects.