I have been writing about recent Ninth Circuit cases that to me seem very significant, but have been overlooked by the pundit class. The last one is a mandatory detention case, Rodriguez v. Robbins, decided on April 16, 2013. In the case, based on 9th Circuit precedent and the doctrine of constitutional avoidance, the Ninth Circuit affirmed a preliminary injunction in favor of aliens being detained by Immigration and Customs Enforcement in excess of six months. The injunction holds that after an alien is detained for six months,, the government’s statutory mandatory detention authority under INA § 236(c) and INA § 235(b) expires and an alien is entitled to a bond hearing before an immigration judge to consider release. At the hearing, the immigration judge must consider the alien’s flight risk and dangerousness.
The grant of a preliminary injunction is based on a consideration of four factors:
1. Likelihood of success on the merits;
2. Likelihood of irreparable harm in the absence of preliminary relieff;
3. On which side that the balance of equities tips in favor; and
4. Whether the injunction is in the public interest.
A problem with the case is that it is not a decision on the merits, but rather a decision on a preliminary injunction issued by a federal district court judge in the Federal District Court for the Central District of California. Does such an injunction apply nationwide, in the Ninth Circuit, or just in the Central District? If an appellate court panel decides it will likely decide a certain way and writes a lengthy opinion to say why and publishes this decision, is that holding then binding precedent in he Circuit? If the underlying case is a class action, as this one is, then does the ruling apply to all members of the class? All class members in the circuit? All class members in the district? Despite the uncertainty as to the scope of the decision, the case is big.
In the mother of all mandatory cases, Demore v. Kim, the Supreme Court upheld the mandatory detention statute, INA § 236(c). The Supreme Court apparently based its decision on the mistaken belief that detention is seldom lengthy. Chief Justice Rehnquist wrote:
Under (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. Brief for Petitioners 39–40. 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.
That was untrue then and is untrue now. This misinformation provided to the Supreme Court has led to a line of cases discussing mandatory detention. A neat thing about Rodriguez v. Robbins is that it summarizes all the pertinent prior cases and as such provides a useful history of litigation regarding the issue of mandatory detention. The case discussed include the Supreme Court’s Zadvydas v. Davis, and the Ninth Circuit’s 2005 Tijani v. Willis, 2006 Nadarajah v. Gonzales, 2008 Casas-Castrillon v. Department of Homeland Security, 2011 Singh v. Holder, and 2011 Diouf v. Napolitano (Diouf II).
After this case, if you have a client detained more than six months in any stage of proceedings, seriously consider doing something about it. Start by requesting a bond hearing. Look at the case. Even if the immigration judge you are before at a bond hearing does not feel bound by Rodriguez v. Robbins, one of the cases before it, which are precedential, could apply to your client. On that basis, your client may get a bond and get released. Posted August 4, 2013.