Cancino Castellar et al v. Nielsen et al, No. 3:2017cv00491 - Document 56 (S.D. Cal. 2018)

Court Description: ORDER Granting in Part and Denying in Part 50 Motion for Reconsideration. Plaintiffs are GRANTED LEAVE TO AMEND to assert a challenge to the conditions of confinement at detention facilities in the District. Plaintiffs may file an amended complain t no later than 10/1/2018. If they do not file one, Defendants may answer or move to dismiss the Fifth Amendment claim for failure to state a claim pursuant to Rule 12(b)(6) no later than 10/15/2018. Signed by Judge Cynthia Bashant on 9/6/2018. (acc)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 JOSE ORLANDO CANCINOCASTELLAR, et al., 14 v. 15 16 17 Case No. 17-cv-0491-BAS-BGS ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR RECONSIDERATION Plaintiff-Petitioners, KIRSTJEN NIELSEN, Secretary, U.S. Department of Homeland Security, et al., [ECF No. 50] Defendant-Respondents. 18 19 20 Before the Court is a motion for reconsideration of the Court’s February 8, 21 2018 order (the “Order”) dismissing the Complaint for lack of jurisdiction, filed by 22 Plaintiff-Petitioners Jose Orlando Cancino-Castellar, Ana Maria Hernandez Aguas, 23 and Michael Gonzalez, (collectively, “Plaintiffs”). (ECF No. 50.) Defendants1 24 25 26 27 28 1 Defendants are: Kirstjen Nielsen, Secretary of the U.S. Department of Homeland Security (“DHS”); Thomas Homan, Acting Director of U.S. Immigration and Customs Enforcement (“ICE”); Kevin K. McAleenan, Acting Commissioner of U.S. Customs and Border Protection (“CBP”); Gregory Archambeault, Field Office Director for the San Diego Field Office of ICE; Jefferson B. Sessions III, Attorney General of the United States; and Juan P. Osuna, Director of the Executive Office for –1– 17cv491 1 oppose the motion (ECF No. 53) and Plaintiffs have replied (ECF No. 55). For the 2 reasons herein, the Court grants in part and denies in part Plaintiffs’ motion. RELEVANT BACKGROUND2 3 4 Plaintiffs filed the putative class action complaint and habeas petition (the 5 “Complaint”), alleging that Defendants have a “policy and practice of detaining 6 individuals for extended periods without promptly presenting them for an initial 7 hearing before an immigration judge or promptly seeking judicial review of probable 8 cause for detention.” (Compl. ¶¶ 1, 4–6.) Each Plaintiff was taken into custody by 9 various immigration enforcement agencies and detained pursuant to Defendants’ 10 alleged policy. (Id. ¶¶ 47–49.) Plaintiffs alleged that “many individuals” who have 11 claims to relief from removal “routinely languish in detention for two months or 12 longer before they see a judge” because of Defendants’ alleged policy. (Id. ¶ 1.) 13 The Complaint challenged Defendants’ conduct as violating (1) detained 14 individuals’ Fifth Amendment procedural and substantive due process rights by 15 causing detention without prompt presentment, (2) their Fourth Amendment rights to 16 a prompt judicial determination of whether probable cause justifies their detention, 17 and (3) the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 706(1), 706(2)(A)– 18 (D). (Id. ¶¶ 38–44, 75–80 (Fifth Amendment); id. ¶¶ 81–84 (Fourth Amendment); 19 id. ¶¶ 85–90 (APA).) Plaintiffs requested declaratory relief, an injunction, and the 20 issuance of a writ of habeas “commanding the release of Plaintiff-Petitioners and 21 class members from detention to the extent necessary for Defendants-Respondents to 22 comply” with Plaintiffs’ view of the law. (Id. at 23.) Defendants moved to dismiss 23 for lack of jurisdiction pursuant to Rule 12(b)(1) and for failure to state a claim 24 pursuant to Rule 12(b)(6). (ECF No. 28.) 25 26 27 28 Immigration Review (“EOIR”). (ECF No. 1.) The Court’s Order discusses in detail the factual allegations and history of this case. (ECF No. 49 at 3–11.) The Court does not recount that background here. 2 –2– 17cv491 1 On February 8, 2018, the Court granted Defendants’ motion to dismiss for lack 2 of jurisdiction. (ECF No. 49.) The Court determined that it lacks jurisdiction over 3 Gonzalez’s Fourth Amendment probable cause claim pursuant to 8 U.S.C. § 1252(g) 4 because he was initially placed into mandatory detention as a result of expedited 5 removal proceedings. (Id. at 15.) The Court further determined that 8 U.S.C. §§ 6 1252(a)(5) and 1252(b)(9) deprive it of jurisdiction over Cancino’s and Hernandez’s 7 Fourth Amendment claims and all Plaintiffs’ Fifth Amendment claims because those 8 claims arise from removal proceedings. (Id. at 22–27.) The Court concluded that the 9 statutory provisions require the Plaintiffs to raise these claims in in a petition for 10 review (“PFR”). (Id.) Lastly, the Court determined that Plaintiffs’ request for habeas 11 relief did not prevent the channeling of their claims. (Id. at 33–41.) The Court 12 dismissed the Complaint, but granted Plaintiffs leave to amend “to assert claims over 13 which th[e] Court may properly exercise jurisdiction.” (Id. at 42.) 14 On February 27, 2018, the Supreme Court decided Jennings v. Rodriguez, 138 15 S. Ct. 830 (2018). Because the decision provides new analysis on Section 1252(b)(9), 16 Plaintiffs moved for reconsideration of the Order’s Section 1252(b)(9) conclusions. 17 (ECF No. 50.) Plaintiffs’ deadline to file an amended complaint is vacated pending 18 resolution of the motion. (ECF No. 51.) 19 LEGAL STANDARD 20 “Reconsideration is appropriate if the district court (1) is presented with newly 21 discovered evidence, (2) committed clear error or the initial decision was manifestly 22 unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. IJ, 23 Multnomah Cty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). A motion to 24 reconsider must (1) show some valid reason why the court should reconsider its prior 25 decision, and (2) set forth facts or law of a strongly convincing nature to persuade 26 the court to reverse its prior decision. Frasure v. United States, 256 F. Supp. 2d 1180 27 (D. Nev. 2003) (citing All Hawaii Tours Corp. v. Polynesian Cultural Ctr., 116 28 F.R.D. 645, 648-49 (D. Haw. 1987), rev’d on other grounds, 855 F.2d 860 (1988)). –3– 17cv491 DISCUSSION 1 2 A. The Scope and Application of Section 1252(b)(9) 3 The parties dispute whether Jennings supports the Court’s conclusion that it 4 lacks jurisdiction over the claims asserted in the Complaint pursuant to 8 U.S.C. § 5 1252(b)(9). (ECF Nos. 50, 53, 55.) To resolve this dispute, the Court first considers 6 (1) the statutory text and its pre-Jennings interpretation, (2) the Supreme Court’s 7 analysis in Jennings, and (3) Jennings’ departures from prior Ninth Circuit precedent. 8 1. Statutory Text and Pre-Jennings Interpretation 9 As the Court has observed, Section 1252(a)(5) is central to Section 10 1252(b)(9)’s scope. The former establishes that “a petition for review filed with the 11 appropriate court of appeals . . . shall be the sole and exclusive means for review of 12 an order of removal entered or issued under any provision of this chapter[.]” 8 U.S.C. 13 § 1252(a)(5). Section 1252(b)(9) in turn provides that “[j]udicial review of all 14 questions of law and fact, including interpretation and application of constitutional 15 and statutory provisions, arising from any action taken or proceeding brought to 16 remove an alien from the United States under this subchapter [including §§ 1225 and 17 1226] shall be available only in judicial review of a final order[.]” 8 U.S.C. § 18 1252(b)(9). Thus, Section 1252(b)(9) consolidates judicial review into a PFR of a 19 final order. The provisions also expressly preclude habeas jurisdiction as a means of 20 review, outside of a PFR, of a final order of removal. 8 U.S.C. §§ 1252(a)(5), (b)(9). 21 Prior to Jennings, the Supreme Court discussed Section 1252(b)(9) twice. In 22 its first pass, the Court characterized Section 1252(b)(9) as an “unmistakable zipper 23 clause,” which consolidates judicial review of “all decisions and actions” in the 24 removal process. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483 25 (1999) [hereinafter “AAADC”]. In its second pass, the Court reaffirmed that the 26 provision’s “purpose is to consolidate ‘judicial review’ of immigration proceedings 27 into one action in the court of appeals.” INS v. St. Cyr, 533 U.S. 289, 313 (2001). 28 But, based on its text at the time, the Court also determined that Section 1252(b)(9) –4– 17cv491 1 “by its own terms, d[id] not bar habeas jurisdiction over removal orders not subject 2 to judicial review under § 1252(a)(1)” and emphasized that the term “judicial review 3 . . . is a term historically distinct from habeas.” Id. at 313. The 2005 REAL ID Act 4 superseded St. Cyr’s interpretation to address “anomalies created by St. Cyr,” H.R. 5 Rep. No. 109–72, at 174, by “clarify[ing] that federal courts lack habeas jurisdiction 6 over orders of removal” while leaving intact the “operative jurisdiction-channeling 7 language[.]” J.E.F.M. v. Lynch, 837 F.3d 1026, 1031, 1034 n.6 (9th Cir. 2016). 8 The Ninth Circuit’s pre-Jennings precedent reflects three points. First, pre- 9 Jennings Ninth Circuit precedent indicated that Sections 1252(a)(5) and 1252(b)(9) 10 are “not jurisdiction-stripping statutes that, by their terms, foreclose all judicial 11 review,” but rather “bypass the district court” and “channel judicial review over final 12 orders of removal to the courts of appeals” in a petition for review (“PFR”). J.E.F.M., 13 837 F.3d at 1031, 1033; see also Martinez v. Napolitano, 704 F.3d 620, 622 (9th Cir. 14 2012) (the provisions “limit all aliens to one bite of the apple with regard to 15 challenging an order of removal.” (quoting Singh v. Gonzales, 499 F.3d 969, 976 (9th 16 Cir. 2007)). 17 Second, pre-Jennings Ninth Circuit precedent noted that the provisions have 18 “built-in limits” “[b]y channeling only those questions ‘arising from any action taken 19 or proceeding brought to remove an alien[.]’” J.E.F.M., 837 F.3d at 1032. “[C]laims 20 that are independent of or collateral to the removal process” are not channeled. Id. 21 Pre-Jennings, the Ninth Circuit provided examples of when claims do and do not 22 “arise from” removal proceedings or an action taken to remove an alien. Contrast 23 Singh, 499 F.3d at 979 (permitting ineffective-assistance-of-counsel claim for 24 conduct occurring after final order of removal to be raised in a habeas petition in 25 district court, but barring similar claim for conduct that arose before final order of 26 removal) and Nadarajah v. Gonzales, 443 F.3d 1069, 1075–76 (9th Cir. 2006) 27 (permitting habeas claim in district court raised by an alien plaintiff who “prevailed 28 at every administrative level” and was granted asylum, yet remained in –5– 17cv491 1 administrative detention for five years) with J.E.F.M., 837 F.3d at 1034 (no district 2 court jurisdiction over due process right-to-counsel claims raised by immigrant 3 minors in removal proceedings prior to the issuance of a final order of removal) and 4 Martinez, 704 F.3d at 623 (district court lacked jurisdiction over APA challenge to 5 BIA’s denial of removal relief because alien “had his day in court and an opportunity 6 to argue ‘all questions of law and fact’ arising from his removal proceedings”). 7 Finally, pre-Jennings Ninth Circuit precedent broadly held that, “Sections 8 1252(a)(5) and 1252(b)(9) mean that any issue . . . arising from any removal-related 9 activity can be reviewed only through the PFR process.” J.E.F.M., 837 F.3d at at 10 1031 (emphasis in original); id. at 1034 (Section 1252(b)(9) “make[s] perfectly clear 11 . . . that ‘review of a final order of removal is the only mechanism for reviewing any 12 issue raised in a removal proceeding’[]” (quoting H.R. Rep. No. 109–72, at 173)). 13 The Ninth Circuit expressly rejected the notion that an asserted lack of “meaningful 14 review” of a claim in the PFR process could “circumvent an unambiguous statute.” 15 J.E.F.M., 837 F.3d at at 1036.3 16 2. Jennings v. Rodriguez’s Jurisdictional Analysis 17 In Jennings, the plaintiff aliens sought injunctive and declaratory relief and 18 habeas on behalf of themselves and a class. Jennings, 138 S. Ct. at 838. They 19 challenged the government’s authority to detain non-citizens for longer than six 20 months pending completion of removal proceedings pursuant to the general 21 22 The Ninth Circuit viewed the argument as inapposite because “it stem[med] from dicta in McNary [v. Haitian Refugee Center],” which was “a statutory interpretation case involving a completely different statute.” J.E.F.M., 837 F.3d at 1035–36. In McNary, the Supreme Court determined that the judicial review provisions of the Immigration Reform and Control Act (“IRCA”) concerning the Seasonal Agricultural Workers (“SAW”) program did not bar jurisdiction over SAWrelated pattern and practice claims. McNary, 498 U.S. 479, 483–84, 491–94 (1991). The Supreme Court observed that “if not allowed to pursue their claims in the District Court, respondents would not as a practical matter be able to obtain meaningful judicial review” of their claims. Id. at 496. 3 23 24 25 26 27 28 –6– 17cv491 1 immigration detention statutes. Id. at 839 (“In their complaint, Rodriguez and the 2 other respondents argued that the relevant statutory provisions—[8 U.S.C.] §§ 3 1225(b), 1226(a), and 1226(c)—do not authorize ‘prolonged’ detention in the absence 4 of an individualized bond hearing[.]”). The district court had certified a class and 5 issued an injunction, which the Ninth Circuit affirmed by interpreting the detention 6 statutes as requiring a bond hearing every six months pursuant to the canon of 7 constitutional avoidance. See Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015). 8 Before reversing the Ninth Circuit’s interpretation of the detention statutes, the 9 Supreme Court addressed Section 1252(b)(9) as a “potential obstacle[]” to 10 jurisdiction. With only eight justices, the Court was fragmented in its views. 11 Jennings, 138 S. Ct. at 839–841 (Alito, J., joined by Roberts, C.J. and Kennedy, J.) 12 (jurisdiction); id. at 853–859 (Thomas, J., concurring, joined by Gorsuch, J.) (no 13 jurisdiction); id. at 876 (Breyer, J., dissenting, joined by Ginsburg, J. and Sotomayor, 14 J.) (jurisdiction). 15 Justice Thomas took the broadest view of Section 1252(b)(9). He first observed 16 that, “[i]f an alien raises a claim arising from such an action or proceeding, courts 17 cannot review it unless they are reviewing a ‘final order’ under § 1252(a)(1) or 18 exercising jurisdiction otherwise provided in § 1252,” a limitation that habeas could 19 not avoid. Id. at 853–54. Justice Thomas concluded that Section 1252(b)(9) barred 20 jurisdiction because “claims challenging detention during removal proceedings . . . 21 fall within the heartland of § 1252(b)(9).” Id. at 854. In contrast, Justice Breyer 22 determined that Section 1252(b)(9) “by its terms applies only ‘[w]ith respect to review 23 of an order removal under [§ 1252(a)(1)],” but “[r]espondents challenge their 24 detention without bail, not an order of removal.” Id. at 876.4 25 26 27 28 Plaintiffs suggest that the Court could adopt Justice Breyer’s view. As Justice Thomas observed, however, “the prefatory clause and § 1252(b)(9) mean that review of all questions arising from removal must occur in connection with review of a final removal order under § 1252(a)(1), which makes sense given that § 1252(b)(9) is meant to ‘[c]onsolidat[e] . . . questions for judicial review.’” Jennings, 138 S. Ct. at 4 –7– 17cv491 1 Justice Alito took a middle approach—he did not find jurisdiction simply 2 because there was no final order of removal, nor did he conclude there was no 3 jurisdiction simply because the plaintiffs were in removal-related detention. He first 4 asked what legal question the Court had to decide, which he identified as “whether . . 5 . certain statutory provisions require detention without a bond hearing.” Id. at 840. 6 “[A]ssum[ing] . . . that the actions taken with respect to all aliens in the certified class 7 constitute ‘action[s] taken . . . to remove [them],” Justice Alito inquired whether the 8 legal question arose from these actions. Id. 9 In concluding that the legal question did not arise from the acts covered by 10 Section 1252(b)(9), Justice Alito first rejected an “expansive” interpretation of 11 “arising from” that would bar jurisdiction simply because the aliens would not be in 12 custody at all if actions to remove them had never been taken. Id. at 840. Providing 13 as examples a Bivens challenge to inhumane confinement conditions, a state claim 14 against a guard or fellow detainee for assault, and a tort suit, Justice Alito opined that 15 “cramming judicial review of those questions into the review of final removal orders 16 would be absurd.” 17 interpreting “arising from” because it “would also make claims of prolonged 18 detention effectively unreviewable.” Id. He explained that a detainee would have no 19 “meaningful chance for judicial review” because a final order might never enter and 20 even if one “eventually” did, the allegedly excessive detention would have already 21 occurred. Id. Third, Justice Alito cautioned that “when confronted with capacious 22 phrases like arising from, we have eschewed uncritical literalism leading to results 23 that no sensible person could have intended.” Id. (quoting Gobeille v. Liberty Mut. 24 Ins. Co., 136 S. Ct. 936, 943 (2016) (international quotations omitted)). Id. Second, Justice Alito rejected this “extreme way” of 25 Not “attempt[ing] to provide a comprehensive interpretation,” Justice Alito 26 concluded it was jurisdictionally “enough” that “respondents are not asking for review 27 28 856. –8– 17cv491 1 of an order of removal; they are not challenging the decision to detain them in the first 2 place or to seek removal; and they are not challenging any part of the process by 3 which their removability will be determined.” Id. at 841. He expressly rejected Justice 4 Thomas’s view that Section 1252(b)(9) bars jurisdiction over removal-related 5 detention. Justice Alito reasoned that “[t]he question is not whether detention is an 6 action taken to remove an alien but whether the legal questions in this case arise from 7 such an action,” questions which Justice Alito deemed “too remote from the actions 8 taken to fall within the scope of §1252(b)(9).” Id. at 841 n.3 (emphasis in original). 9 3. Jennings’ Relevant Departures from Ninth Circuit Precedent 10 Justice Alito’s view of Section 1252(b)(9) departs from two aspects of pre- 11 Jennings Ninth Circuit precedent on which the Court relied when it dismissed the 12 Complaint for lack of jurisdiction. First, the Court expressly relied on prior Ninth 13 Circuit precedent which contemplated a broad scope for Section 1252(b)(9). The 14 Ninth Circuit expressly characterized Section 1252(b)(9) as “‘breathtaking’ in scope 15 and ‘vise-like’ in grip,” which “swallows up virtually all claims that are tied to 16 removal proceedings.” J.E.F.M., 837 F.3d at 1031 (quoting Aguilar v. ICE, 510 F.3d 17 1, 9 (1st Cir. 2007)). This precedent may treat Section 1252(b)(9) too broadly in light 18 of the Jennings plurality’s rejection of an “expansive” interpretation of “arising from” 19 that would sweep a claim into Section 1252(b)(9) simply because an alien is in 20 removal proceedings or a removal action was taken. Pre-Jennings Ninth Circuit 21 precedent also instructed that claims “independent of or collateral to the removal 22 process do not fall within the scope of Section 1252(b)(9),” but unlike Jennings, it did 23 not identify what such claims would be for aliens with pending removal proceedings. 24 Contrast Jennings, 138 S. Ct. at 840 with J.E.F.M., 837 F.3d at 1032.5 Justice Alito’s 25 26 5 27 28 J.E.F.M. relied on First Circuit precedent which expressly identified detention challenges and infringement of the right to family integrity as claims that would not fall within Section 1252(b)(9). See Aguilar, 510 F.3d 1, 11–12, 19 (1st Cir. 2007). J.E.F.M., however, did not expressly adopt these examples. –9– 17cv491 1 identification of aspects of the immigration removal process over which a court 2 ostensibly lacks jurisdiction and claims that fall outside Section 1252(b)(9)’s scope 3 provides important guidance on the statute’s scope. 4 Second, the Court relied on pre-Jennings Ninth Circuit precedent which 5 rejected the argument that Section 1252(b)(9) could not bar district court jurisdiction 6 over a claim that cannot be meaningfully reviewed in the PFR process. (ECF No. 49 7 at 30–31); see J.E.F.M., 837 F.3d at 1035–38. Justice Alito’s analysis counsels that 8 courts should consider whether an “extreme” interpretation of “arising from” in 9 Section 1252(b)(9) would make a claim “effectively unreviewable.” Jennings, 138 10 S. Ct. at 840. Justice Alito expressly identified “claims of prolonged detention” as 11 effectively unreviewable, but his analysis did not end there. Rather, he explained 12 further that the Jennings plaintiffs did not otherwise challenge the initial decision to 13 detain or remove them or the removal process. Id. at 840–841. This elaboration 14 provides context which shows that there is no freestanding exception to Section 15 1252(b)(9) based on whether claims are effectively unreviewable, as Plaintiffs appear 16 to suggest. 17 unreviewable is a much easier question to answer than whether they are ‘inextricably 18 linked’ with removal proceedings.”).) Rather, a court must ask whether the claims 19 otherwise challenge issues that are cognizable in the PFR process. With these points 20 in mind, the Court reconsiders whether it has jurisdiction. 21 B. (ECF No. 50-1 at 3 (“The issue whether claims are effectively Jurisdiction Over the Complaint Post-Jennings 22 Plaintiffs characterize Jennings as concerning “prolonged detention without 23 certain procedural safeguards.” (ECF No. 50-1 at 1.) Based on this characterization, 24 they contend that their claims are “indistinguishable” from those in Jennings “for 25 jurisdictional purposes” and thus Jennings “controls” jurisdiction. (ECF No. 50-1 at 26 1, 7–14; ECF No. 55 at 2–6.) Plaintiffs’ characterization of Jennings, however, 27 extends it beyond its narrower legal question and elides the case-specific inquiry 28 reflected in Justice Alito’s analysis of whether Section 1252(b)(9) bars jurisdiction. – 10 – 17cv491 1 Pursuant to that inquiry, a court should first identify what legal (or factual) question 2 the plaintiff raises and then determine whether that question “arises from” an action 3 taken to remove an alien or removal proceedings. Jennings, 138 S. Ct. at 840. With 4 the benefit of Justice Alito’s analysis, the Court considers whether Section 5 1252(b)(9) bars jurisdiction over the particular legal questions raised by Plaintiffs’ 6 Fourth and Fifth Amendment claims. 7 1. Fourth Amendment Probable Cause Claim 8 Plaintiffs’ Fourth Amendment claim raises the legal question of whether the 9 Amendment “permit[s] the government to detain individuals without prompt judicial 10 determination of whether probable cause justifies their detention.” (Comp. ¶ 82.) 11 Plaintiffs refine this question to be whether such a probable cause determination must 12 occur within 48 hours of an individual being taken into immigration custody by an 13 immigration officer. (Id. ¶ 46.) As Defendants recognize (ECF No. 53 at 3), the 14 legal question raised by Plaintiffs’ Fourth Amendment claim arises from aspects of 15 the removal process over which Justice Alito indicated Section 1252(b)(9) would bar 16 jurisdiction. 17 For one, the claim plainly “challeng[es] the decision to detain them in the first 18 place[.]” Jennings, 138 S. Ct. at 841. The claim expressly challenges “decisions to 19 keep persons in custody beyond 48 hours and before their initial Master Calendar 20 Hearing [that] are made by DHS officers alone without prompt judicial review.” 21 (Compl. ¶ 46 (emphasis added); id. ¶¶ 4, 22.) The question of whether the Fourth 22 Amendment requires “judicial review” of that decision within 48 hours is far from a 23 claim of prolonged detention “remote” from the initial decision to detain. Second, 24 and relatedly, the claim “challeng[es] the decision . . . to seek removal” in the first 25 place. Jennings, 138 S. Ct. at 841. The “probable cause” procedure Plaintiffs seek 26 is one in which an immigration officer’s determination that an individual is 27 removable from the United States is “promptly reviewable.” Plaintiffs recognize that 28 “[n]ot all persons facing removal proceedings are detained” and “the government – 11 – 17cv491 1 routinely pursues removal . . . against non-detained individuals[.]” (ECF No. 50-1 at 2 9; ECF No. 55 at 5.) These points, however, mean little in Plaintiffs’ circumstances. 3 The Complaint recognizes that individuals like the Plaintiffs are taken into ICE 4 custody because immigration officers suspect them of being aliens removable from 5 the United States.6 Even though custody and removability are distinct, Plaintiffs’ 6 “probable cause” claim concededly does not involve the former. Plaintiffs aver that 7 none of the purely custodial questions in a bond hearing, such as whether an alien is 8 a flight risk or a danger to the community, is “at issue here.”7 (ECF No. 50-1 at 17.) 9 It is clear to the Court that this claim concerns the mere fact that an immigration 10 officer has taken any action at all against the Plaintiffs and the putative class. 11 For this reason, the Court must reject Plaintiffs’ contention that the Court may 12 exercise jurisdiction over their Fourth Amendment claim on the ground that it is 13 effectively unreviewable because it also involves detention. The detention-framing 14 of the Complaint makes addressing the impact of Section 1252(b)(9) on Plaintiffs’ 15 Fourth Amendment claim challenging. But, as the Court has explained, Justice 16 Alito’s analysis should not be read to fashion a free-standing exception to Section 17 1252(b)(9) based on the mere assertion that a claim is effectively unreviewable or 18 challenges “prolonged detention.” As Justice Alito himself confirmed, a court must 19 decide whether the legal or factual question a plaintiff raises arises from an action 20 21 22 23 24 6 Plaintiffs do not allege a policy in which individuals are detained without probable cause to believe they are aliens removable from the United States, nor do they seek relief premised on whether an individual is in fact not an alien. The Court does not address whether Section 1252(b)(9) would apply in those circumstances. Plaintiffs’ Fourth Amendment claim is fundamentally different from the bond hearing claim at issue in Jennings in this regard. The Jennings plaintiffs expressly sought access to bond hearings to justify their continued detention. Jennings, 138 S. Ct. at 838, 839. The plaintiffs in Jennings did not claim that the government lacked probable cause to detain them in the first place or that the Constitution requires a procedure for determining probable cause to detain with days of an initial apprehension and detention. 7 25 26 27 28 – 12 – 17cv491 1 taken to remove or the removal process. Jennings, 138 S. Ct. at 840. At its core, 2 Plaintiffs’ Fourth Amendment probable cause claim does so. 3 Finally, Plaintiffs cannot tenably argue that the Court may grant a remedy for 4 this claim “without impeding removal proceedings.” (ECF No. 50-1 at 1.) Unlike 5 the Jennings plaintiffs, Plaintiffs’ Fourth Amendment claim does not seek a 6 “procedural safeguard” to justify continued detention pending removal proceedings. 7 Instead, Plaintiffs seek a “procedural safeguard” by which a detained individual’s 8 removability from the United States is immediately reviewable by an IJ. Although 9 the Court is not insensitive to the notion that the absence of such a procedure 10 unreasonably “extends” detention for individuals detained after being taken into 11 immigration custody, the relief Plaintiffs request is the premise of removal 12 proceedings—assessing whether an individual is removable from the United States 13 and the government’s evidence on that issue. See Delgado v. Quarantillo, 643 F.3d 14 52, 55 (2d Cir. 2011) (“[W]hether the district court has jurisdiction will turn on the 15 substance of the relief that a plaintiff is seeking.”). This issue is clearly cognizable 16 in the PFR process. Accordingly, the Court affirms that it lacks jurisdiction over 17 Plaintiffs’ Fourth Amendment probable cause claim pursuant to Section 1252(b)(9). 18 2. Fifth Amendment Prompt Presentment Claim 19 Plaintiffs’ Fifth Amendment claim raises the legal question of whether the 20 Fifth Amendment’s Due Process Clause “permit[s] the government to detain 21 Plaintiff-Petitioners or other members of the class without promptly presenting them 22 before a judge.” (Compl. ¶ 77.) The claim is premised on the notion that procedural 23 and substantive due process require “prompt presentment” to justify the deprivation 24 of physical liberty that detention represents. (Id. ¶¶ 35–39, 41–43.) Based on Justice 25 Alito’s analysis in Jennings, the Court concludes that Section 1252(b)(9) does not 26 bar jurisdiction over Plaintiffs’ Fifth Amendment claim. 27 At the heart of Plaintiffs’ Fifth Amendment claim is the notion that 28 unreasonable delays in the presentment of detained aliens seeing an immigration – 13 – 17cv491 1 judge (“IJ”) unconstitutionally extends their detention. (Compl. ¶¶ 40, 44.)8 As the 2 Court observed in its Order (ECF No. 49 at 5–6, 23–25), the Complaint identifies the 3 initial Master Calendar Hearing (“MCH”) as the first appearance before an IJ and a 4 “crucial stage” of removal proceedings. (Compl. ¶¶ 1, 3, 24–34, 44.) The MCH 5 permits an alien to, inter alia, learn the charges against him, assess the sufficiency of 6 a Notice to Appear, request a bond hearing, and learn of possible relief from 7 removability. (Id. ¶¶ 29–32.) The Court previously understood a claim premised on 8 delays in presentment to an IJ, particularly at the MCH, as swept up by Section 9 1252(b)(9). (ECF No. 49 at 24–25, 28.) Justice Alito’s analysis in Jennings alters 10 the Court’s conclusion by circumscribing Section 1252(b)(9)’s scope. It is clear to 11 the Court that by challenging Defendants’ alleged unreasonable delays in presenting 12 detained aliens to an IJ, Plaintiffs’ Fifth Amendment claim does not “ask[] for review 13 of an order of removal,” or “challeng[e] the decision to detain them in the first place 14 or to seek removal.” Jennings, 138 S. Ct. at 841. Similarly, they do not “challeng[e] 15 any part of the process by which their removability will be determined,” id., but rather 16 the separate conduct of immigration authorities delaying that process and, 17 consequently, the Plaintiffs’ detention. 18 In their motion, Plaintiffs also aver that first presentment need not be an initial 19 MCH. The Complaint expressly alleges that Defendants “confine[] individuals for 20 removal proceedings without . . . [an] automatic custody review hearing before an 21 immigration judge,” “commonly called a bond hearing.” (Compl. ¶¶ 6, 63.) When 22 Plaintiffs’ Fifth Amendment claim is reconsidered in light of this allegation, the claim 23 is more analogous to the bond hearing claim at issue in Jennings, with the key 24 25 26 27 28 In particular, the Complaint alleges that “DHS fails to provide the time, place, and date of the initial [MCH] in the [NTA]” and instead “relies on EOIR to schedule the hearing,” which in turn “does not schedule more expeditious initial Master Calendar Hearings for detainees” and “frequently sets the initial Master Calendar Hearing for detained immigration cases in the Southern District of California for one to three months after receiving the Notice to Appear.” (Compl. ¶¶ 28, 64–67.) 8 – 14 – 17cv491 1 difference being whether a bond hearing should be “automatic” or more promptly 2 held than it is currently alleged to be. 3 As in Jennings, treating Plaintiffs’ Fifth Amendment claim regarding alleged 4 prolonged detention resulting from delays in presentment as “arising from” an action 5 taken to remove an alien would make Plaintiffs’ claim “effectively unreviewable.” 6 Jennings, 138. S. Ct. at 840. Allegedly excessive detention caused by delays in 7 presentment cannot be remedied in a PFR because “by the time a final order was 8 eventually entered, the allegedly excessive detention would have already taken 9 place.” Id. at 840. And like the plaintiffs in Jennings, the Court’s analysis shows 10 that Plaintiffs do not challenge aspects of the removal process over which Justice 11 Alito indicated Section 1252(b)(9) would bar jurisdiction. Accordingly, the Court 12 concludes that reconsideration of its dismissal of Plaintiffs’ Fifth Amendment claim 13 is warranted, grants Plaintiffs’ motion as to that claim, and reinstates the claim. 14 CONCLUSION & ORDER 15 For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN 16 PART Plaintiffs’ motion for reconsideration. (ECF No. 50.) The Court AFFIRMS 17 that it lacks jurisdiction over Plaintiffs’ Fourth Amendment claim. However, Section 18 1252(b)(9) does not bar jurisdiction over the Plaintiffs’ Fifth Amendment claim and 19 the Court REINSTATES the Complaint as to that claim and Plaintiffs’ APA claim, 20 to the extent it is based on the same alleged failure to “promptly present.” 21 Consistent with the Court’s prior Order, Plaintiffs are nevertheless 22 GRANTED LEAVE TO AMEND to assert a challenge to the conditions of 23 confinement at detention facilities in the District. Plaintiffs may file an amended 24 complaint no later than October 1, 2018. If they do not file one, Defendants may 25 answer or move to dismiss the Fifth Amendment claim for failure to state a claim 26 pursuant to Rule 12(b)(6) no later than October 15, 2018. 27 28 IT IS SO ORDERED. DATED: September 6, 2018 – 15 – 17cv491

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