Case 5:16-cv-00620 Document 1 Filed 04/06/16 Page 1 of 18 Page ID #:1

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MICHAEL KAUFMAN (SBN 254575)
mkaufman@aclu-sc.org
AHILAN T. ARULANANTHAM (SBN 237841)
aarulanantham@aclu-sc.org
ACLU FOUNDATION OF SOUTHERN CALIFORNIA
1313 West 8th Street
Los Angeles, CA 90017
Telephone: (213) 977-5232
Facsimile: (213) 977-5297
Attorneys for Plaintiffs-Petitioners
(Additional Counsel listed on following page)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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XOCHITL HERNANDEZ, CESAR
MATIAS, for themselves and on behalf
of a class of similarly-situated
individuals,
Plaintiffs-Petitioners,
v.
LORETTA LYNCH, U.S. Attorney
General, JUAN P. OSUNA, Director,
Executive Office for Immigration
Review, JEH JOHNSON, Secretary,
Department of Homeland Security,
SARAH R. SALDAÑA, Director,
Immigration and Customs Enforcement
(ICE), DAVID JENNINGS, Field Office
Director, Los Angeles Field Office of
ICE, JAMES JANECKA, Warden,
Adelanto Detention Facility;
CHRISTINA HOLLAND, Jail
Administrator, Santa Ana City Jail,
CARLOS ROJA, Chief, Santa Ana City
Department, JON BRIGGS, Captain,
Orange County Sheriff’s Department
(OCSD), MIKE KRUEGER, Captain,
OCSD, SANDRA HUTCHENS, Sheriff,
Orange County, in their official capacity
only,
Defendants-Respondents.

) Case No. 16-620
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) COMPLAINT – CLASS ACTION
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 Case 5:16-cv-00620 Document 1 Filed 04/06/16 Page 2 of 18 Page ID #:2

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MICHAEL TAN*
mtan@aclu.org
JUDY RABINOVITZ*
jrabinovitz@aclu.org
AMERICAN CIVIL LIBERTIES FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
125 Broad Street, 18th Floor
New York, NY 10004
Telephone: (212) 549-2618
Facsimile: (212) 549-2654
STEPHEN KANG (SBN 292280)
skang@aclu.org
AMERICAN CIVIL LIBERTIES FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
Telephone: (415) 343-0779
Facsimile: (415) 395-0950
DOUGLAS A. SMITH (SBN 290598)
Douglas.Smith@probonolaw.com
WINSTON P. HSIAO (SBN 273638)
Winston.Hsiao@probonolaw.com
GRAYCE S. FRINK (SBN 279112)
Grayce.Frink@probonolaw.com
DEVON L. HEIN (SBN 287832)
Devon.Hein@probonolaw.com
MATTHEW E. DELGADO (SBN 306999)
Matthew.Delgado@probonolaw.com
300 South Grand Avenue, Suite 3400
Los Angeles, California 90071-3144
Telephone: (213) 687-5000
Facsimile: (213) 687-5600
Attorneys for Plaintiffs-Petitioners
* pro hac vice or admission application forthcoming

 Case 5:16-cv-00620 Document 1 Filed 04/06/16 Page 3 of 18 Page ID #:3

INTRODUCTION

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This class action lawsuit challenges the federal government’s policy and

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practice of setting cash bonds for noncitizens in immigration proceedings, without

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regard to a noncitizen’s financial resources, which has resulted in the incarceration of

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individuals merely because they are poor. As a result of these policies and practices,

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many noncitizens—including longtime lawful permanent residents and asylum seekers

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fleeing persecution (including in some cases unlawful imprisonment)—are ordered

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released on a cash bond but cannot pay it, and remain detained for prolonged periods

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while their immigration cases are pending. The detention of such individuals is not

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justified by any valid interest, but rather is based on nothing more than the fact that

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they are poor or otherwise lack the financial ability to pay their bonds.

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2.

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resided in the United States for more than twenty-five years, and Cesar Matias, a

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Honduran national seeking asylum in the United States, are detained under the

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Immigration and Nationality Act (“INA”), 8 U.S.C. § 1226(a). Each Plaintiff has been

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granted release on a money bond pending their immigration removal proceedings.

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However, Plaintiffs face months or even years in immigration detention because they

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are unable to pay the bond set by Defendants. Indeed, Mr. Matias has already been

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detained nearly three-and-a-half years because he cannot afford to pay his bond.

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3.

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process. First, as a matter of policy and practice, immigration officials are not required

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to consider an immigration detainee’s financial ability to pay when setting a money

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bond. Second, when they do set the bond amount, immigration officials require

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noncitizens to post the full cash bond amount to be released, instead of permitting

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noncitizens to post a deposit, property, or other assets as collateral. And third, as a

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matter of policy and practice, immigration officials are not required to consider

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whether alternative conditions of supervision (such as electronic monitoring or

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periodic reporting requirements), alone or in combination with a lower bond amount,

Plaintiffs-Petitioners Xochitl Hernandez, a mother and grandmother who has

Plaintiffs’ detentions result from three flaws in the immigration detention

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would be sufficient to mitigate flight risk and thus permit the person’s release. The

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result is that the government incarcerates Plaintiffs and others solely because they lack

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the financial means to post the full bond amount that Defendants have set.

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4.

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immigration detainees remain detained in this District on money bonds set pursuant to

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Defendants’ policies and practices.

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protection guarantees of the Fifth Amendment; and the Eighth Amendment’s

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Excessive Bail Clause. A person’s poverty or lack of financial resources should not

Plaintiffs are not alone. On any given day, at least a hundred similarly situated

Defendants’ policies and practices violate the INA; the due process and equal

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deprive him of his freedom. Indeed, the federal government has recognized in the

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criminal bail context that “[i]ncarcerating [criminal defendants] solely because of their

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inability to pay for their release . . . through the payment of . . . a cash bond . . .

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violates the Equal Protection Clause . . . .” and that bail systems must “take individual

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circumstances into account”—including the person’s financial ability to pay.1

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that the government both assess an individual’s financial ability to pay when setting

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bond and determine if alternative forms of bond or other conditions of supervision

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permit the detainee’s release. These basic procedures are necessary to ensure that

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Plaintiffs and similarly situated individuals are not impermissibly imprisoned based

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solely on their inability to pay.

The same principles should govern here. The INA and U.S. Constitution require

PARTIES

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detained at the Adelanto Detention Center in Adelanto, California pending

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immigration removal proceedings. Ms. Hernandez came to the United States as an

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Plaintiff-Petitioner Xochitl Hernandez is a native and citizen of Mexico. She is

Statement of Interest of the United States at 1, 8 (hereinafter “Varden Statement”),
Varden v. City of Clanton, No. 2:15-cv-00034-MHT (M.D. Ala.filed Feb. 13, 2015)
(Dkt. 26) sub nom. Jones v. The City of Clanton; accord U.S. Dep’t of Justice, Dear
Colleague Letter, Mar. 14, 2016, at 7-8, available at
https://www.justice.gov/crt/file/832461/download (stating that “[c]ourts must not
employ bail or bond practices that cause indigent defendants to remain incarcerated
solely because they cannot afford to pay for their release”).
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adolescent, and has lived in the United States for more than 25 years. Ms. Hernandez

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is a single mother who has raised five children in the United States, and cares for her

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four grandchildren. All her children and grandchildren are United States citizens. Prior

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to her detention, Ms. Hernandez lived with her children and grandchildren, and

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cooked, cleaned, and cared for her family, including her mother who suffers from a

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heart condition. More than a decade ago, Ms. Hernandez was convicted for

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shoplifting, for which she was sentenced to one-day in jail; it is the sole crime for

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which she has been convicted during her decades in the United States. In March 2016,

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an immigration judge conducted a bond hearing in Ms. Hernandez’s case under

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Section 1226(a) and set her bond at $60,000. Ms. Hernandez and her family do not

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have the financial ability to pay this bond. Ms. Hernandez’s adult children have no

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assets, and have to dedicate their limited earnings to rent, food, and other basic

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necessities. Ms. Hernandez remains detained because of Defendants’ policy and

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practice of failing to consider immigration detainees’ financial ability to pay a bond;

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requiring detainees to post the full cash bond amount to be released; and failing to

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consider whether release on an alternative form of bond or conditions of supervision

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would sufficiently address any concerns about flight risk. Ms. Hernandez is eligible

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for cancellation of removal and for a U-visa (as a victim of domestic violence), but

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faces the prospect of months or years in detention until her immigration case is

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resolved.

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detention, Mr. Matias resided in Los Angeles and worked as a hair stylist. Mr. Matias

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has been detained for more than four years at the Santa Ana City Jail in Santa Ana,

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California pending immigration removal proceedings. A gay man, Mr. Matias is

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seeking protection in the United States on account of the severe persecution he

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suffered in Honduras because of his sexual orientation. In November 2012, and again

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in February 2013, August 2013, and August 2014, Defendants authorized Mr. Matias’

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release on a $3,000 bond under Section 1226(a). However, Mr. Matias has remained

Plaintiff-Petitioner Cesar Matias is a native and citizen of Honduras. Prior to his

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detained because of Defendants’ policy and practice of failing to consider immigration

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detainees’ financial ability to pay a bond; requiring detainees to post the full cash

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bond amount to be released; and failing to consider whether release on an alternative

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form of bond or conditions of supervision would sufficiently address any concerns

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about flight risk. Mr. Matias’ removal case is pending at the Ninth Circuit Court of

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Appeals, which has ordered a stay of removal and appointed him pro bono counsel in

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connection with his appeal. He faces the prospect of months or years of additional

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detention until his case is resolved.

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Defendant-Respondent Loretta Lynch is the Attorney General of the United

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States and the most senior official in the U.S. Department of Justice (“DOJ”). She has

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the authority to interpret the immigration laws and adjudicate removal cases. The

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Attorney General delegates this responsibility to the Executive Office for Immigration

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Review (“EOIR”), which administers the immigration courts and the Board of

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Immigration Appeals (“BIA”). She is named in her official capacity.

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within DOJ responsible for the immigration courts and the BIA. He is named in his

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official capacity.

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Homeland Security (“DHS”), an agency of the United States. Secretary Johnson is a

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legal custodian of Plaintiff-Petitioners and other members of the proposed class

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(“Plaintiffs”). He is named in his official capacity.

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and Customs Enforcement (“ICE”). ICE is responsible for apprehension, detention,

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and removal of noncitizens from the United States. Director Saldaña is a legal

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custodian of the Plaintiffs. She is named in her official capacity.

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ICE, a component of DHS. Director Jennings has custody of the Plaintiffs and is

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named in his official capacity.

Defendant-Respondent Juan P. Osuna is the Director of EOIR, the agency

Defendant-Respondent Jeh Johnson is the Secretary of the U.S. Department of

Defendant-Respondent Sarah R. Saldaña is the Director of U.S. Immigration

David Jennings is the Field Office Director for the Los Angeles Field Office of

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14.

Defendant-Respondent James Janecka is the Warden of the Adelanto Detention

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Facility in Adelanto, California. Warden Janecka has custody of the Plaintiffs and is

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named in his official capacity.

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Ana City Jail in Santa Ana, California. Defendant Holland has custody of the

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Plaintiffs and is named in her official capacity.

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Department, which operates the Santa Ana City Jail in Santa Ana, California. Chief

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Holland has custody of the Plaintiffs and is named in his official capacity.

Defendant-Respondent Christina Holland is the Jail Administrator of the Santa

Defendant-Respondent Carlos Roja is the Chief of the Santa Ana City

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Defendant-Respondent Jon Briggs is a Captain in the Orange County Sheriff’s

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Department and the Officer-in-Charge of the Theo Lacy Facility in Santa Ana,

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California. Captain Briggs has custody of the Plaintiffs and is named in his official

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capacity.

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Sheriff’s Department and the Officer-in-Charge of the James A. Musick Facility in

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Irvine, California. Captain Krueger has custody of the Plaintiffs and is named in his

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official capacity.

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operates the Theo Lacy Facility in Santa Ana, California, and the James A. Musick

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Facility in Irvine, California. Chief Hutchens has custody of the Plaintiffs and is

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named in her official capacity.

Defendant-Respondent Mike Krueger is a Captain in the Orange County

Defendant-Respondent Sandra Hutchens is the Sheriff of Orange County, which

JURISDICTION AND VENUE

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Jurisdiction is proper under 28 U.S.C. §§ 1331, 1361, 1651, 2241; the

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Suspension Clause, U.S. Const. art. I, § 2; and 5 U.S.C. § 702.

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2202.

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because at least one federal Defendant is in this District, the Plaintiffs are detained in

Plaintiffs seek declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201-

Venue is proper in the Central District of California under 28 U.S.C. § 1391

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this District, and a substantial part of the events giving rise to the claims in this action

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took place in this District.
BACKGROUND

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Legal Background

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INA § 236(a), 8 U.S.C. § 1226(a), authorizes immigration officials to release a

6 noncitizen on appropriate conditions pending the resolution of his or her immigration
7 case. Section 1226(a) provides that, “pending a decision on whether the alien is to be
8 removed from the United States,”
“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 . . . .”

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Id.

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24.

The Attorney General shares his authority to detain or release noncitizens under

15 Section 1226(a) with the Secretary of Homeland Security. See 8 U.S.C. § 1103(a) &
16 (g); Homeland Security Act of 2002, Pub. L. No. 107-296, § 441, 116 Stat. 2192.
The Department of Homeland Security (“DHS”) makes an initial custody

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determination for each noncitizen detained under the statute, whereby the agency

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considers him or her for release on bond, recognizance, or other conditions (such as

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electronic monitoring, periodic reporting requirements, restrictions on travel, or

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enrollment in a substance abuse program). With some exceptions not relevant here,

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noncitizens may seek review of an ICE custody determination before an immigration

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judge (“IJ”) at a hearing commonly known as a “bond hearing.” See 8 C.F.R.

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§§ 1003.19(a) & (h)(2)(i). At the bond hearing, the IJ likewise determines whether the

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noncitizen can be released on bond, recognizance, or other conditions. See 8 C.F.R.

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§ 1236.1(d)(1); 8 C.F.R. § 1003.19.

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satisfaction of the officer that [his or her] release would not pose a danger to property

To obtain release from ICE or the IJ, the noncitizen must “demonstrate to the

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or persons, and that [he or she] is likely to appear for any future proceeding.” 8 C.F.R.

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§ 1236.1(c)(8); Matter of Adeniji, 22 I. & N. Dec. 1102 (BIA 1999). A noncitizen

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found to present a danger to persons or property is ineligible for release on bond.

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Matter of Guerra, 24 I. & N. Dec. 37, 38 (BIA 2006). If the person does not pose a

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danger and is likely to appear at future proceedings, the ICE officer or IJ determines

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whether the noncitizen may be released on recognizance, bond, or other conditions

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that will sufficiently address any concerns about flight risk. See id. at 39-40.

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financial ability to pay when setting a bond under Section 1226(a). Nor is there any

There is presently no requirement that ICE consider a detainee’s poverty or

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requirement that ICE determine whether conditions of supervision, alone or in

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combination with a lower bond, would suffice to allow for the person’s release.

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28.

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he or she may consider in custody redeterminations.” Guerra, 24 I. & N. Dec. at 40.

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However, there is no requirement that IJs consider an individual’s ability to pay the

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bond. Indeed, in a series of unpublished decisions, the BIA has held that a person’s

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financial circumstances are irrelevant to a bond determination. See In Re Sandoval-

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Gomez, 2008 WL 5477710, at *1 (BIA Dec. 15, 2008) (“an alien’s ability to pay the

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bond amount is not a relevant bond determination factor”); In Re Castillo-Cajura,

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2009 WL 3063742, at *1 (BIA Sept. 10, 2009) (same). Nor is there any requirement

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that IJs determine whether conditions of supervision, alone or in combination with a

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lower bond, would sufficiently address any concerns about flight risk and therefore

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suffice to allow for the person’s release.

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redetermination by the IJ, but “only upon a showing that the alien’s circumstances

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have changed materially since the prior bond redetermination.” 8 C.F.R. § 1003.19(e).

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However, Defendants do not recognize a person’s financial inability to post bond,

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despite having made good faith efforts to do so, as a “changed circumstance” that

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warrants a new bond hearing.

Under BIA precedent, the IJ has “broad discretion in deciding the factors that

The regulations further permit the noncitizen to seek a new bond

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Section 1226(a) imposes a minimum $1,500 bond, “with security approved by

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. . . the Attorney General.” However, in practice ICE or IJs routinely set higher bonds,

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such as $20,000, $25,000, and even $100,000 or more.

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the Attorney General,” the government has a policy and practice of requiring

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immigration detainees to post the full cash value of the immigration bond to obtain

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release. In sharp contrast to the criminal justice system, no other forms of secured

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bonds are deemed acceptable, such as deposit bonds—where the noncitizen would

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post a percentage (such as 10%) of the bond as security, and the total bond amount

Moreover, although Section 1226(a) refers broadly to “security approved by . . .

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becomes due only if he fails to appear—or property bonds, where property valued at

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the full bond amount would be posted as security and would be forfeited if the person

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fails to appear.

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32.

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individual’s financial ability to pay the bond—is out of step with well-established

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procedures in federal and state courts. Under the federal Bail Reform Act, a district

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court must consider a range of alternative conditions before ordering release on

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monetary bond and “may not impose a financial condition that results in the pretrial

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detention of the person.” See 18 U.S.C. § 3142(a)-(c). Likewise, state criminal justice

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systems in this Circuit require that judicial officers must consider a defendant’s

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financial ability to pay at custody hearings. See, e.g., Alaska Stat. Ann.

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§ 12.30.011(c)(8) (requiring court to consider “assets available to the person to meet

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monetary conditions of release”); Cal. Penal Code § 1270.1 (requiring court to

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consider detained person’s “ability to post bond”); Nev. Rev. Stat. Ann. § 178.498

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(requiring bail to be set with regard to “[t]he financial ability of the defendant to give

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bail”); Mont. Code Ann. § 46-9-301 (requiring bail to be “considerate of the financial

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ability of the accused”); Haw. Rev. Stat. Ann. § 804-9 (amount of bail should be

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determined so as not “to render the privilege useless to the poor”); Wash. Rev. Code

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Ann. § SUPER CT CR CrR 3.2(b)(6) (“If the court determines that the accused must

The government’s reliance on full cash bonds—without consideration of an

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post a secured or unsecured bond, the court shall consider, on the available

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information, the accused’s financial resources for the purposes of setting a bond that

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will reasonably assure the accused's appearance.”). See also Gusick v. Boies, 72 Ariz.

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233, 237 (1951) (noting that that court should consider “the ability of the accused to

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give bail” when setting bail to comport with the prohibition of excessive bail).

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33.

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or property bonds, rather than insisting on payment of a full cash bond.

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34.

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increasingly calling for an end to the over-reliance on monetary bond, fines, fees, and

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other financial constraints that disproportionately affect low-income individuals in the

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criminal justice system.2 However, the federal government’s immigration detention

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policies practices suffer from the same flaws.

Bond systems for criminal detainees also routinely accept the posting of deposit

Federal and state officials—including the U.S. Department of Justice—are

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CLASS ACTION ALLEGATIONS

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Defendants’ Policies and Practices for Setting Immigration Bonds in the Central
District of California

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35.

ICE detains several thousand noncitizens in the Central District of California

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(the “District”) at any given time, primarily at four detention facilities. The largest, the

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Adelanto Detention Facility in Adelanto, California, is operated by the GEO

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Corporation and has capacity to hold approximately 1,950 immigrants. ICE also

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detains noncitizens in three other detention centers located in Orange County. The

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James A. Musick Facility in Irvine, California, is operated by the Orange County

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Sheriff and has capacity to hold approximately 350 immigrants. The Theo Lacy

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Facility in Orange, California, is operated by the Orange County Sheriff and has

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capacity to hold approximately 475 immigrants. The Santa Ana City Jail in Santa Ana,

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California, is operated by the Santa Ana City Police and has capacity to hold

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approximately 200 immigrants.

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36.

As a matter of policy, practice, or both, ICE and IJs in the District are not

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2

See Varden Statement at 5-8, 11, 13-14.
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required to consider an individual’s financial resources in setting bond amounts under

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Section 1226(a).

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37.

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the full cash bond to be released.

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38.

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whether an alternative form of bond or conditions of supervision, alone or in

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combination with a lower bond, would suffice to address flight risk and permit

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release.

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39.

As a matter of policy, practice, or both, Defendants require that immigrants post

As a matter of policy, practice, or both, ICE and IJs are not required to consider

On any given day, at least 100 immigrants—and likely many more—remain

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detained in this District under Section 1226(a) on a bond set pursuant to these policies,

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practices, or both. This is so even though, by setting a bond, Defendants have already

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determined that such individuals do not pose a danger to the community or a level of

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flight risk that requires their detention.

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40.

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this District. For example, Plaintiff Matias was ordered released on a $3,000 bond

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following a bond hearing in immigration court in approximately November 2012. At

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the hearing, the IJ did not ask any questions about his financial circumstances or

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ability to pay a bond. At a court hearing in February 2013, Mr. Matias again requested

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release from detention to retrieve documents for his removal case. The IJ refused,

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telling him the bond set was “pretty generous” even though he could not afford it. In

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approximately August 2013, ICE re-evaluated Mr. Matias’s custody, but did not

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inquire into his financial circumstances or ability to pay a bond. ICE issued a decision

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ordering him released on a $3,000 bond, the same bond amount ordered by the IJ that

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he had been unable to afford. At a hearing in approximately August 2014, Mr. Matias

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requested that the IJ consider releasing him on non-monetary conditions but the IJ

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refused, stating that the $3,000 bond amount was “reasonable,” even though Mr.

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Matias had been unable to afford it for more than a year and a half at that point. As of

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this time, Mr. Matias has remained detained for more than three and a half years since

The stories of the individual Plaintiffs are typical of the detention practices in

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his bond was initially set.

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41.

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bond hearing in immigration court in March 2016. The immigration judge found that

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Ms. Hernandez was not a danger to the community, but that she “posed a flight risk”

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because she might not win her immigration case. However, prior to setting the bond,

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the immigration judge did not inquire into Ms. Hernandez’s financial circumstances or

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her ability to pay a bond, and did not state whether he considered whether she could

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be released on non-monetary conditions that would suffice to address concerns about

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flight risk. Because Ms. Hernandez and her family lack the resources to pay the bond,

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she has been detained for several weeks since the bond was initially set, and faces the

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prospect of months or years of additional time in detention until her case completes.

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42.

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For example, in one case of a detainee held in the Central District, an IJ refused to

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lower a bond to an amount the detainee’s family could afford on the ground that

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evidence of financial circumstances was “irrelevant” to the bond amount

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determination. In another case of a detainee held in the Central District, a different IJ

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refused to consider a detainee’s indigence and dismissed evidence of financial

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hardship because “everyone is poor in here.”

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This Action Satisfies the Requirements of Federal Rule of Civil Procedure 23

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43.

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Civil Procedure 23(b)(2) on behalf of themselves and all other persons similarly

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situated. The proposed class is defined as follows:

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Plaintiffs’ experiences are similar to those of other proposed class members.

Plaintiffs Hernandez and Matias bring this action pursuant to Federal Rules of

All individuals who are or will be detained pursuant to 8 U.S.C.
§ 1226(a) on a bond set by an U.S. Immigration and Customs
Enforcement officer or an Immigration Judge in the Central District of
California.

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26

Similarly, Ms. Hernandez was ordered released on a $60,000 bond following a

44.

The requirements of Rule 23(a)(1) are met in this case because the class is so

numerous that joinder of all members is impracticable. At any given time, at least 100
persons remain detained on a bond set by government officials in this District
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1

pursuant to the bond policies and practices that Plaintiffs challenge. More individuals

2

will become class members in the future, as Defendants continue to detain additional

3

noncitizens under Section 1226(a) on a monetary bond pursuant to their bond policies

4

and practices.

5

45.

6

removal proceedings, they may win their cases and be released or deported upon the

7

conclusion of their removal cases. The inherently transitory state of the proposed class

8

further demonstrates that joinder is impracticable.

9

46.

Moreover, because Plaintiffs and proposed class members are detained pending

The proposed class meets the commonality requirements of Federal Rule of

10

Civil Procedure 23(a)(2) because all proposed class members are subject to

11

Defendants’ three common policies or practices: Defendants’ failure to require that

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ICE and IJs consider an individual’s ability to pay in setting a bond under Section

13

1226(a); Defendants’ requirement that detainees post full cash bonds rather than other

14

forms of secured bonds; and Defendants’ failure to require a determination that no

15

conditions of supervision, alone or in combination with a lower bond, would mitigate

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flight risk. Defendants have concluded that they are not required to make such

17

inquiries or to accept alternative forms of secured bonds, and this policy applies to all

18

members of the proposed class.

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47.

20

Procedure 23(a)(3) because the claims of the representative Plaintiffs are typical of the

21

claims of the class. Plaintiffs Hernandez, Matias, and the class they seek to represent

22

are all individuals who are or will be detained on a full cash bond pursuant to Section

23

1226(a), and whose bonds have been set or will be set without any requirement that

24

Defendants consider their financial ability to pay or the adequacy of an alternative

25

bond or alternative conditions of supervision. Plaintiffs Hernandez, Matias, and the

26

proposed class also share the same legal claims, which challenge the legality of these

27

bond policies and practices under the INA, the Due Process Clause and equal

The proposed class meets the typicality requirements of Federal Rule of Civil

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1

protection guarantee of the Fifth Amendment, and the Eighth Amendment’s Excessive

2

Bail Clause.

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48.

4

Procedure 23(a)(4). Plaintiffs Hernandez and Matias seek the same relief as the other

5

members of the class—namely, custody decisions that require consideration of both

6

their financial ability to pay a money bond and the adequacy of alternative conditions

7

of supervision, as well as the opportunity to post forms of security other than a full

8

cash bond—and they do not have any interests adverse to those of the class as a

9

whole.

The proposed class meets the adequacy requirements of Federal Rule of Civil

10

49.

In addition, the proposed class is represented by counsel from the American

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Civil Liberties Union of Southern California, the American Civil Liberties Union

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Immigrants’ Rights Project, and experienced pro bono attorneys. Counsel have

13

extensive experience litigating class action lawsuits and other complex cases in

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federal court, including civil rights lawsuits on behalf of immigration detainees.

15

50.

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because the immigration authorities have acted on grounds generally applicable to the

17

class by failing to apply procedures required by the U.S. Constitution and Section

18

1226(a) to all members of the proposed class. Thus, final injunctive and declaratory

19

relief is appropriate with respect to the class as a whole.

20

51.

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Civil Procedure 23(b)(1)(A) and (b)(1)(B).

Finally, the proposed class satisfies Federal Rule of Civil Procedure 23(b)(2)

In the alternative, the class also qualifies for certification under Federal Rules of

CLAIMS FOR RELIEF

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23

First Claim
Violation of the Immigration and Nationality Act

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25

52.

All of the foregoing allegations are repeated and realleged as though fully set

26

forth herein.

27

53.

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Nationality Act (“INA”), 8 U.S.C. § 1226(a). Properly construed, Section 1226(a)

Defendants’ policies and practices for setting bond violate the Immigration and

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1

does not permit the government to detain Plaintiffs and proposed class members on a

2

full cash bond absent consideration of the person’s financial ability to pay the bond

3

amount and consideration of whether an alternative form of bond or other conditions

4

of supervision, alone or in combination with a lower bond, would sufficiently mitigate

5

flight risk. Plaintiffs’ detention under Section 1226(a) in the absence of such

6

procedures violates the INA.

7

Second Claim
Violation of the Due Process Clause of the Fifth Amendment
to the United States Constitution

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9
10
11
12
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14
15
16
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18
19
20
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54.

All of the foregoing allegations are repeated and realleged as though fully set

forth herein.
55.

The Fifth Amendment to the U.S. Constitution provides that “[n]o person shall

be . . . deprived of life, liberty, or property, without due process of law.” U.S. Const.
amend. V. Due process requires that civil immigration detention be reasonably related
to preventing flight and danger to the community and be accompanied by adequate
procedures to ensure those goals are being met.
56.

For these reasons, due process does not permit the government to detain

Plaintiffs on a full cash bond absent a determination of a person’s financial ability to
pay the bond amount and whether an alternative form of bond or other conditions of
supervision, alone or in combination with a lower bond, can sufficiently mitigate
flight risk.
Third Claim
Violation of the Equal Protection Guarantee of the Fifth Amendment

22
23

57.

All of the foregoing allegations are repeated and realleged as though fully set

24

forth herein.

25

58.

26

laws.

27

59.

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resources to pay a money bond, while affording release to individuals who can afford

The Fifth Amendment prohibits denying individuals the equal protection of the
The government’s detention of individuals because they lack the financial

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1

a money bond, discriminates against individuals who are indigent or lack the

2

resources to pay their bonds.

3

60.

4

Plaintiffs on a full cash bond absent a determination of a person’s ability to pay the

5

bond amount and whether an alternative form of bond or other conditions of

6

supervision, alone or in combination with a lower bond, can sufficiently mitigate

7

flight risk.

For this reason, equal protection does not permit the government to detain

Fourth Claim
Violation of the Excessive Bail Clause of the Eighth Amendment
to the United States Constitution

8
9
10

61.

All of the foregoing allegations are repeated and realleged as though fully set

11

forth herein.

12

62.

13

. . . .” U.S. Const. amend. VIII. “[B]ail must be set by a court at a sum designed to

14

ensure” the government’s goals of preventing flight and danger—“and no more.”

15

United States v. Salerno, 481 U.S. 739, 754 (1987).

16

63.

17

Plaintiffs on a full cash bond absent a determination of a person’s ability to pay the

18

bond amount and whether an alternative form of bond or other conditions of

19

supervision, alone or in combination with a lower bond, can sufficiently mitigate

20

flight risk.

The Eighth Amendment provides that “[e]xcessive bail shall not be required

Thus, the Eighth Amendment does not permit the government to detain

PRAYER FOR RELIEF

21
22

Plaintiffs ask this Court to grant the following relief:

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1.

24

Hernandez and Matias as representatives of the class and the undersigned counsel as

25

class counsel;

26

2.

27

detaining class members on a full cash bond without requiring that ICE and the IJ

28

consider class members’ financial ability to pay when setting a bond, as well as the

Certify this case as a class action lawsuit, as proposed herein, appoint Plaintiffs

Declare that Defendants’ policy and practice, as described in this Complaint, of

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1

adequacy of an alternative form of secured bond and alternative conditions of

2

supervision, violates the INA, 8 U.S.C. § 1226(a), and the Fifth and Eighth

3

Amendments to the U.S. Constitution;

4

3.

5

setting a bond under 8 U.S.C. § 1226(a) and consider whether an alternative form of

6

secured bond or other conditions of supervision, alone or in combination with a lower

7

bond, would mitigate flight risk and permit the class member’s release. If a class

8

member is unable to pay any bond set by the IJ after making good faith efforts to do

9

so, Defendants must provide the class member with a new bond hearing before the IJ

Order the Defendants to assess each class member’s financial ability to pay in

10

to determine if he or she may be released on an alternative form of secured bond or

11

other conditions of supervision, alone or in combination with a lower bond;

12

4.

13

bond hearing where the IJ considers their financial ability to pay a monetary bond and

14

whether an alternative form of secured bond or other conditions of supervision, alone

15

or in combination with a lower bond, would mitigate flight risk and permit the

16

Plaintiffs’ release. If the Plaintiff is unable to pay any new bond set by the IJ after

17

making good faith efforts to do so, Defendants must provide him or her with a new

18

bond hearing before the IJ to determine if he or she may be released on an alternative

19

form of secured bond or other conditions of supervision, alone or in combination with

20

a lower bond;

21

5.

Grant an award of attorneys’ fees and costs; and

22

6.

Grant such other relief as may be just and reasonable.

Grant Plaintiffs Hernandez and Matias’s writs of habeas corpus and order a

23

Respectfully submitted,

24

ACLU OF SOUTHERN CALIFORNIA

25

Dated: April 6, 2016

/s/ Michael Kaufman
MICHAEL KAUFMAN
Counsel for Plaintiffs-Petitioners

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