Case 2:18-cv-00928-MJP Document 86 Filed 10/26/18 Page 1 of 7 The Honorable Marsha J. Pechman 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 11 YOLANY PADILLA, IBIS GUZMAN, BLANCA ORANTES, BALTAZAR VASQUEZ, No. 2:18-cv-928 MJP 12 Plaintiffs-Petitioners, 13 14 15 16 17 18 19 20 21 22 23 24 v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (“ICE”); U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); U.S. CITIZENSHIP AND IMMIGRATION SERVICES (“USCIS”); EXECUTIVE OFFICE FOR IMMIGRATION REVIEW (“EOIR”); THOMAS HOMAN, Acting Director of ICE; KIRSTJEN NIELSEN, Secretary of DHS; KEVIN K. McALEENAN, Acting Commissioner of CBP; L. FRANCIS CISSNA, Director of USCIS; MARC J. MOORE, Seattle Field Office Director, ICE, JEFFERSON BEAUREGARD SESSIONS III, United States Attorney General; LOWELL CLARK, warden of the Northwest Detention Center in Tacoma, Washington; CHARLES INGRAM, warden of the Federal Detention Center in SeaTac, Washington; DAVID SHINN, warden of the Federal Correctional Institute in Victorville, California; JAMES JANECKA, warden of the Adelanto Detention Facility; DEFENDANTS’ RESPONSE TO PLAINTIFFS’ REPLY TO DEFENDANTS’ MOTION FOR RELIEF FROM DEADLINES 25 26 Defendants-Respondents. 27 28 i DEFENDANTS’ REPLY TO PLAINTIFFS’ RESPONSE TO MOTION FOR RELIEF FROM DEADLINES (Case No. 2:18-cv-00928-MJP) Department of Justice, Civil Division P.O. Box 868 Ben Franklin Station Washington, D.C. 20044 (202) 616-4458 Case 2:18-cv-00928-MJP Document 86 Filed 10/26/18 Page 2 of 7 1 Defendants respectfully submit this Reply to Plaintiffs’ Response in Opposition to 2 Defendants’ Motion for Relief from Deadlines (ECF 84). This Court should grant an abeyance in 3 this case because (I) Plaintiffs would suffer no harm from an abeyance when the named Plaintiffs 4 have already been released on bond and all putative class members will continue to receive bond 5 hearings under Matter of X-K- and (II) litigating issues subsidiary to Matter of X-K- before the 6 Attorney General has ruled will waste judicial and the parties’ resources. 7 9 ARGUMENT Plaintiffs would suffer no harm from a short stay because all named Plaintiffs have received bond hearings and the proposed class will continue to receive bond hearings under Matter of X-K-. 10 Plaintiffs’ harm arguments center on the proposed class, not the named Plaintiffs—as there 11 is no cognizable argument that named Plaintiffs would suffer any harm from an abeyance 12 whatsoever, because they all have received bond hearings and have been released from 13 immigration custody. 8 I. 14 There also is no legally cognizable harm to the proposed Bond Hearing Class. They will 15 continue to receive bond hearings under Matter of X-K-, as Plaintiffs concede. See ECF 45 at 4 n.2 16 (“Proposed class members are eligible for bond hearings unless and until the decision is vacated.”). 17 Those hearings are held promptly, and the claim here relates to a very small difference between 18 when Plaintiffs seek hearings (within seven days) and when hearings are in fact held consistent 19 with the ongoing important competing obligations of the immigration courts—many of which also 20 relate to detained aliens. See PI Opp., ECF 82, at 10-11. 21 This short difference of time for scheduling a bond hearing cannot constitute legally 22 cognizable harm: the Supreme Court in Jennings held that the statute at issue requires detention 23 during the pendency of immigration proceedings. Jennings v. Rodriguez, 138 S. Ct. 830, 845 24 (2018). There, the Court explained that “[8 U.S.C.] §§ 1225(b)(1) and (b)(2) mandate detention of 25 aliens throughout the completion of applicable proceedings and not just until the moment those 26 proceedings begin.” Id. And prior to its reversal in Jennings, the Ninth Circuit held that bond 27 hearings would be required only after the passage of six months. Rodriguez v. Robbins, 804 F.3d 28 1060, 1069-71 (9th Cir. 2015) (reversed). The bond hearings that occur under Matter of X-K- are 2 DEFENDANTS’ REPLY TO PLAINTIFFS’ RESPONSE TO MOTION FOR RELIEF FROM DEADLINES (Case No. 2:18-cv-00928-MJP) Department of Justice, Civil Division P.O. Box 868 Ben Franklin Station Washington, D.C. 20044 (202) 616-4458 Case 2:18-cv-00928-MJP Document 86 Filed 10/26/18 Page 3 of 7 1 held much more quickly than this outer bound approved by the now-vacated Rodriguez decision. 2 As it currently stands, and will continue to under an abeyance, the proposed class will 3 receive prompt bond hearings under Matter of X-K- and remain in the United States while their 4 asylum claims are pending. Plaintiffs’ assertion that class members will abandon asylum claims if 5 they do not receive a bond hearing within seven days—as opposed to promptly and consistent with 6 immigration court schedules—is not consistent with their assertions relating to the severity of the 7 harm that will ensue. See ECF 84 at 8 (stating aliens likely to “return to likely persecution, torture, 8 or death” and “give up their cases” due to the timing of bond hearings). This rationale does not 9 call for moving ahead at this time when viewed next to the holding in Jennings—where the 10 challenge relates to much longer periods of detention—and the Supreme Court’s explanation that 11 aliens in detention must make difficult choices when seeking immigration relief. Demore v. Kim, 12 538 U.S. 510, 530 n.14 (2003) (noting that “there is no constitutional prohibition against requiring 13 parties to make” “difficult judgments as to which course to follow”) (internal quotation marks and 14 citation omitted). Importantly, Plaintiffs have not named a single class member who has gone 15 without a bond hearing through the course of this litigation or anyone who has left the United 16 States and faced harm due to the small difference in the timing of bond hearings. Any harm from 17 an abeyance is purely theoretical and outweighed by the judicial efficiency of avoiding 18 unnecessary litigation that will need reconsideration. See, e.g., Alaska Right to Life Political Action 19 Comm. v. Feldman, 504 F.3d 840, 849 (9th Cir. 2007) (“[W]e conclude that the district court 20 should have declined to exercise jurisdiction on prudential ripeness grounds, given the 21 inadequately developed record and the absence of a showing that withholding jurisdiction would 22 impose hardship on the parties.”). 23 Furthermore, as Defendants have detailed, Defendants anticipate that any stay or abeyance 24 would be brief because the Attorney General has set a deadline of November 9, 2018, for interested 25 amici to submit briefs, meanwhile briefing on the preliminary injunction motion will not be 26 complete until October 26, 2018, and the instant motion is noted for that same date. Plaintiffs’ 27 brief shows that the Attorney General makes decisions within a short timeframe, sometimes the 28 same day that he certifies the case, other times in three months, and at longest within five months. 3 DEFENDANTS’ REPLY TO PLAINTIFFS’ RESPONSE TO MOTION FOR RELIEF FROM DEADLINES (Case No. 2:18-cv-00928-MJP) Department of Justice, Civil Division P.O. Box 868 Ben Franklin Station Washington, D.C. 20044 (202) 616-4458 Case 2:18-cv-00928-MJP Document 86 Filed 10/26/18 Page 4 of 7 1 ECF 84 at 5-6. The Attorney General first certified this Matter of X-K- question on September 18, 2 2018. See id. at 6. By the time that the preliminary injunction motion in this case is fully briefed, 3 the Attorney General will have reviewed the issue for five weeks. There is no reason to believe 4 that the abeyance would be long in this case. Because Plaintiffs will suffer no harm, this Court 5 should grant an abeyance. II. Litigating issues subsidiary to Matter of X-K- before the Attorney General has ruled will unnecessarily consume judicial and party resources. 6 7 Plaintiffs contend that they cite Matter of X-K- as merely “evidencing the availability of 8 bond hearings” but proceed to argue at length that Matter of X-K-’s holding “cannot . . . change[,]” 9 as they maintain that Matter of X-K- is mandated by the Constitution and by statute. ECF 84, at 1, 10 12. Plaintiffs’ complaint, however, does not claim that bond hearings are required by the 11 Constitution or statute—instead, they claim that the Constitution is violated by “prolonging . . . 12 detention by delaying their bond hearing[s]” provided for in Matter of X-K. Second Am. Compl. 13 ¶ 151; see id. ¶ 152 (government detaining for “unreasonable time awaiting a bond hearing”); id. 14 ¶ 155 (APA violated by “unreasonable time awaiting a bond hearing”). Plaintiffs would need to 15 amend their complaint (on behalf of a plaintiff with standing) if they sought to challenge the 16 determination—should one be made—that the INA did not permit bond hearings in these 17 circumstances. Such an allegation would of course be premature at this time, providing a further 18 reason to temporarily stay the case. Plaintiffs’ attempt to litigate what is currently a hypothetical 19 determination by the Attorney General shows the propriety of an abeyance in this case. Plaintiffs 20 and Defendants are in agreement that a change in Matter of X-K- could alter the legal landscape of 21 the present case. Waiting until the Court has a complete view of the future legal landscape and the 22 effects that the Attorney General’s decision will also preserve judicial resources. 23 In acknowledging that any class certified or relief granted would promptly require 24 reconsideration after the administrative decision, Plaintiffs essentially agree that there is a 25 “substantial risk of duplication of proceedings and waste of judicial resources” without an 26 abeyance in this case. McMenemy v. Colonial First Lending Grp., Inc., No. 2:14-CV-001482 JAM 27 A, 2015 WL 1137344, at *2 (E.D. Cal. Mar. 12, 2015). If this Court were to grant preliminary 28 4 DEFENDANTS’ REPLY TO PLAINTIFFS’ RESPONSE TO MOTION FOR RELIEF FROM DEADLINES (Case No. 2:18-cv-00928-MJP) Department of Justice, Civil Division P.O. Box 868 Ben Franklin Station Washington, D.C. 20044 (202) 616-4458 Case 2:18-cv-00928-MJP Document 86 Filed 10/26/18 Page 5 of 7 1 injunctive relief or define a class before Matter of M-S- is decided, it would need to immediately 2 reconsider those determinations after that decision has been published. Plaintiffs acknowledge as 3 much when they state that “this Court has ample authority, where appropriate, to modify any class 4 definition or order granting preliminary injunctive relief.” ECF 84 at 9. But whether this Court has 5 the ability to modify its orders is distinct from whether it should move forward with litigation of 6 these claims where the legal landscape will soon change significantly. Doing so would likely be 7 inefficient and duplicative, as any decision made now cannot fully contend with an Attorney 8 General decision that has not yet been made. A delay is particularly warranted given the short 9 period of time at issue in this litigation, where bond hearings are now provided promptly consistent 10 with immigration court schedules, but plaintiffs seek to impose a seven day limit. No matter if the 11 Attorney General upholds Matter of X-K- or alters it, this Court will need to modify any rulings to 12 reflect that change and its prior rulings will be to varying extents obsolete. Hence, the preservation 13 of judicial resources warrants an abeyance. 14 CONCLUSION 15 For these reasons and those in its Motion for Relief from Deadlines, ECF 83, this Court 16 should grant an abeyance in this case pending the Attorney General’s decision in Matter of M-S-. 17 In the alternative, if this Court does not believe that a full abeyance is warranted, it should at 18 least postpone class certification and ruling on the preliminary injunction motion with respect to 19 the Bond Hearing Class.1 20 21 22 23 24 25 26 27 28 1 Further, the Ninth Circuit is currently considering the issue of the proper allocation of the burden of proof in bond hearings under sections 1225 and 1226, which also warrants an abeyance on that issue. See Rodriguez v. Jennings, 887 F.3d 954 (Mem.) (9th Cir. 2018). 5 DEFENDANTS’ REPLY TO PLAINTIFFS’ RESPONSE TO MOTION FOR RELIEF FROM DEADLINES (Case No. 2:18-cv-00928-MJP) Department of Justice, Civil Division P.O. Box 868 Ben Franklin Station Washington, D.C. 20044 (202) 616-4458 Case 2:18-cv-00928-MJP Document 86 Filed 10/26/18 Page 6 of 7 1 Dated: October 26, 2018 Respectfully submitted, 2 JOSEPH H. HUNT Assistant Attorney General Civil Division 3 4 WILLIAM C. PEACHEY Director Office of Immigration Litigation, District Court Section 5 6 7 EREZ REUVENI Assistant Director 8 9 /s/Lauren C. Bingham LAUREN C. BINGHAM Trial Attorney Office of Immigration Litigation, District Court Section United States Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 616-4458 Lauren.C.Bingham@usdoj.gov 10 11 12 13 14 15 16 SARAH S. WILSON Assistant United States Attorney 17 JOSEPH DARROW FRANCESCA M. GENOVA Trial Attorneys 18 19 20 21 22 23 24 25 26 27 28 6 DEFENDANTS’ REPLY TO PLAINTIFFS’ RESPONSE TO MOTION FOR RELIEF FROM DEADLINES (Case No. 2:18-cv-00928-MJP) Department of Justice, Civil Division P.O. Box 868 Ben Franklin Station Washington, D.C. 20044 (202) 616-4458 Case 2:18-cv-00928-MJP Document 86 Filed 10/26/18 Page 7 of 7 1 CERTIFICATE OF SERVICE 2 3 I HEREBY CERTIFY that on October 26, 2018, I electronically filed the foregoing 4 document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document 5 is being served this day on all counsel of record or pro se parties via transmission of Notices of 6 Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or 7 8 parties who are not authorized to receive electronically filed Notices of Electronic Filing. 9 10 /s/ Lauren C. Bingham Trial Attorney United States Department of Justice 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ REPLY TO PLAINTIFFS’ RESPONSE TO MOTION FOR RELIEF FROM DEADLINES (Case No. 2:15-cv-01543-RSM) 7 Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, D.C. 20044 (202) 532-4700