FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWIN OMAR FLORES No. 18-35460
TEJADA; GERMAN VENTURA
HERNANDEZ, on behalf of D.C. No.
themselves as individuals and 2:16-cv-01454-JLR
on behalf of others similarly
situated *,
Petitioners-Appellees, OPINION
v.
ELIZABETH GODFREY, Field
Office Director; WILLIAM P.
BARR, Attorney General;
MATTHEW T. ALBENCE,
Acting Director of U.S.
Immigration and Customs
Enforcement; LOWELL
CLARK, Warden; JAMES
MCHENRY, Director of
Executive Office for
Immigration Review;
*
Because the district court dismissed Arturo Martinez Baños as a
named plaintiff long before the orders at issue in this case, we have
removed him from the case caption.
2 FLORES TEJADA V. GODFREY
CHAD WOLF, Acting
Secretary, Department of
Homeland Security, **
Respondents-Appellants.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted November 13, 2019
Pasadena, California
Filed April 7, 2020
Before: FERDINAND F. FERNANDEZ, MILAN D.
SMITH, JR., and ERIC D. MILLER, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.;
Partial Concurrence and Partial Dissent by
Judge Fernandez
**
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Chad
Wolf is automatically substituted as the Acting Secretary of the U.S.
Department of Homeland Security and Matthew T. Albence is
automatically substituted as the Acting Director of U.S. Immigration and
Customs Enforcement.
FLORES TEJADA V. GODFREY 3
SUMMARY ***
Immigration
In an action where Plaintiffs—who represent a certified
class of aliens with final removal orders who are placed in
withholding-only removal proceedings, and who are
detained pursuant to 8 U.S.C. § 1231(a)(6) in the Western
District of Washington—challenged their detention, the
panel: 1) affirmed the district court’s judgment and
permanent injunction insofar as they require the Government
to provide each class member detained for six months or
longer with a bond hearing before an immigration judge
where the burden is on the Government to justify continued
detention; 2) reversed and vacated with respect to the
requirement that the Government provide class members
with additional bond hearings every six months; and
3) reversed and vacated the partial judgment for the
Government on Plaintiffs’ due process claims, and
remanded.
The district court granted partial summary judgment for
Plaintiffs and the class on their statutory claims and, for that
reason, granted partial summary judgment for the
Government on Plaintiffs’ due process claims. The court’s
permanent injunction requires three things: 1) based on
Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) (Diouf
II), the Government must provide a class member detained
for six months or longer with a bond hearing before an IJ
when the class member’s release or removal is not imminent;
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 FLORES TEJADA V. GODFREY
2) based on Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011),
the Government must justify a class member’s continued
detention by clear and convincing evidence showing that the
alien is a flight risk or a danger to the community; and 3) the
Government must provide a class member who remains
detained after an initial bond hearing at six months with
additional bond hearings every six months thereafter.
The panel explained that this appeal presented the same
core question the panel addressed the same day in Aleman
Gonzalez v. Barr, No. 18-16465: whether the court’s
construction in Diouf II survives the Supreme Court’s
decision in Jennings v. Rodriguez, 138 S. Ct. 830 (2018).
The panel reiterated its conclusions from Aleman-Gonzalez
that applied equally here: 1) Diouf II’s construction of
§ 1231(a)(6) to require an individualized bond hearing for an
alien subject to prolonged detention is not clearly
irreconcilable with Jennings; 2) Jennings does not abrogate
the court’s constitutional due process holding in Singh
regarding the applicable burden of proof; and 3) the district
court did not improperly re-apply the canon of constitutional
avoidance to § 1231(a)(6) in contravention of Zadvydas v.
Davis, 533 U.S. 678 (2001), or violate Clark v. Martinez,
543 U.S. 371 (2005).
However, the panel concluded that the district court
erred by requiring the Government to provide class members
with additional statutory bond hearings every six months.
The panel explained that the district court could not rely on
Diouf II to sustain that requirement because, in that case, the
court applied the canon of constitutional avoidance to
construe § 1231(a)(6) as requiring an individualized bond
hearing; it did not apply the canon to read an additional bond
hearings requirement into the statute. Further, the panel
concluded that this court’s decision in Robbins v. Rodriguez,
FLORES TEJADA V. GODFREY 5
804 F.3d 1060 (9th Cir. 2015) (Rodriguez III), which
required periodic bond hearings every six months for aliens
detained under other immigration detention statutes, could
not support the additional bond hearing requirements
imposed by the district court given the Supreme Court’s
reversal of Rodriguez III in Jennings.
Noting that Jennings did not address an additional bond
hearing requirement in the context of § 1231(a)(6), the panel
nonetheless found its reasoning persuasive. In Jennings, the
Supreme Court made clear that Zadvydas’s construction of
§ 1231(a)(6) to identify six months as a presumptively
reasonable length of detention was already “a notably
generous application of the constitutional-avoidance canon.”
Although Diouf II’s six-month bond hearing construction
coincides with Zadvydas’s six-month period, the panel
found no support in either Zadvydas’s reading of
§ 1231(a)(6) or the statutory text to construe the provision as
requiring additional bond hearings. Accordingly, the panel
reversed and vacated the judgment and permanent injunction
for Plaintiffs in this regard.
In doing so, the panel also reversed and vacated partial
judgment for the Government on Plaintiffs’ due process
claims. The panel explained that, because the district court
found in favor of Plaintiffs on their statutory claims, the
district court effectively treated Plaintiffs’ due process
claims as moot. Observing that that is no longer the case
given the panel’s decision, the panel remanded for the
district court to consider Plaintiffs’ constitutional claims.
Concurring in part and dissenting in part, Judge
Fernandez wrote that he would vacate the district court’s
judgment and permanent injunction entirely. Therefore,
Judge Fernandez concurred in the majority opinion to the
6 FLORES TEJADA V. GODFREY
extent that it vacated and remanded on Plaintiffs’
constitutional claims. However, in light of the views he
expressed in his dissenting opinion in Aleman Gonzalez,
Judge Fernandez respectfully dissented from the majority
opinion to the extent it affirmed the district court’s judgment
and leaves the permanent injunction in place.
COUNSEL
Matthew P. Seamon (argued) and Gladys M. Steffens
Guzman, Trial Attorneys; Gisela A. Westwater, Assistant
Director; William C. Peachey, Director; Joseph H. Hunt,
Assistant Attorney General; Office of Immigration
Litigation, United States Department of Justice,
Washington, D.C.; for Respondents-Appellants.
Matt Adams (argued), Leila Kang, and Aaron Korthuis,
Northwest Immigrants Rights Project, Seattle, Washington,
for Petitioners-Appellees.
OPINION
M. SMITH, Circuit Judge:
Edwin Omar Flores Tejada and German Ventura
Hernandez (Plaintiffs) represent a certified class of aliens
with final removal orders who are placed in withholding-
only proceedings, and who are detained in the jurisdiction of
the Western District of Washington (the District) for six
months or longer without an individualized bond hearing. In
this suit, Plaintiffs challenged Defendants-Appellants’
FLORES TEJADA V. GODFREY 7
(hereinafter, the Government 1) alleged policy and practice
of subjecting class members to prolonged detention without
an individualized bond hearing before an immigration judge
(IJ). Plaintiffs claimed statutory rights to such hearings
pursuant to the immigration detention statutes, as well as a
constitutional due process right to such hearings.
The district court granted partial summary judgment for
Plaintiffs and the class on their statutory claims and, for that
reason, granted partial summary judgment for the
Government on Plaintiffs’ due process claims. The court
entered a permanent injunction that requires three things.
First, based on our decision in Diouf v. Napolitano, 634 F.3d
1081, 1086, 1092 & n.13 (9th Cir. 2011) (Diouf II), the
Government must provide a class member who it has
detained for six months or longer with a bond hearing before
an IJ when the class member’s release or removal is not
imminent. Second, based on our decision in Singh v. Holder,
638 F.3d 1196, 1203−04 (9th Cir. 2011), the Government
must justify a class member’s continued detention by clear
and convincing evidence showing that the alien is a flight
risk or a danger to the community. Third, the Government
must provide class members who remain detained even after
an initial bond hearing at six months with additional bond
hearings every six months thereafter. The Government
1
We use the term “the Government” to refer collectively to the
following Defendants-Respondents who Plaintiffs sued in their official
capacities: (1) Elizabeth Godfrey, Field Office Director; (2) William P.
Barr, U.S. Attorney General; (3) Matthew T. Albence, Acting Director
of U.S. Immigration and Customs Enforcement; (4) Lowell Clark,
Warden, (5) James McHenry, Director of the Executive Office for
Immigration Review, (6) Chad Wolf, Acting Secretary of the U.S.
Department of Homeland Security. Our use of the uncapitalized term
“the government” should not be construed as a reference to the
Defendants-Respondents.
8 FLORES TEJADA V. GODFREY
urges us to reverse and vacate the final judgment and
permanent injunction on Plaintiffs’ statutory claims.
This appeal presents the same core question we decide
today in Aleman Gonzalez v. Barr, No. 18-16465: whether
our construction of § 1231(a)(6) in Diouf II survives the
Supreme Court’s decision in Jennings v. Rodriguez, 138 S.
Ct. 830 (2018). Our answer remains the same here. We
affirm the district court’s judgment and permanent
injunction insofar as they conform to our construction of
§ 1231(a)(6) in Diouf II. We also affirm insofar as the
judgment and permanent injunction require the Government
to the satisfy the constitutional burden of proof we identified
in Singh.
However, unlike Aleman Gonzalez, this appeal presents
us with a different question regarding our construction of
§ 1231(a)(6). The district court ordered the Government to
provide class members with additional bond hearings every
six months. We hold that the court erroneously imposed this
requirement as a statutory matter because we did not
construe § 1231(a)(6) as requiring this in Diouf II, nor do we
find any support for this requirement. We therefore partially
reverse and vacate the judgment and permanent injunction,
and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND 2
Edwin Flores Tejada and German Ventura Hernandez
joined this suit upon the filing of an amended complaint and
petition for a writ of habeas corpus in January 2017. Flores
2
We do not retrace the statutory and regulatory background set forth
in Aleman Gonzalez, and instead limit our focus to discussing the distinct
aspects of the proceedings in this case.
FLORES TEJADA V. GODFREY 9
Tejada and Ventura Hernandez are noncitizens against
whom the Government reinstated prior removal orders
pursuant to 8 U.S.C. § 1231(a)(5). The Government
detained and placed each in withholding-only proceedings
pursuant to 8 C.F.R. § 1208.31(e) after an asylum officer
determined that each had a reasonable fear of persecution or
torture if returned to his country of origin. Plaintiffs alleged
that the Government failed to provide them with an
individualized statutory bond hearing before an IJ, in
accordance with our court’s precedents. On behalf of a
putative class of similarly situated aliens in the District,
Plaintiffs claimed a statutory right to an individualized bond
hearing pursuant to 8 U.S.C. § 1226(a) and our decision in
Robbins v. Rodriguez, 804 F.3d 1060 (9th Cir. 2015)
(Rodriguez III). 3 Plaintiffs further claimed a statutory right
to a bond hearing pursuant to any of the immigration
detention statutes as well as a constitutional due process
right to such a hearing.
After the amended complaint’s filing, we held in
Padilla-Ramirez v. Bible, 862 F.3d 881, 884–87 (9th Cir.
2017), amended by, 882 F.3d 826, 830–33 (9th Cir. 2018),
that aliens with reinstated removal orders who are placed in
3
Given the then-absence of Ninth Circuit case law, Plaintiffs
claimed that they were detained pursuant to § 1226(a), finding support
in Guerra v. Shanahan, 831 F.3d 59 (2d Cir. 2016). In Guerra, the
Second Circuit held that aliens with reinstated final removal orders who
are placed in withholding proceedings are subject to detention pursuant
to § 1226(a). Id. at 62–64. We expressly rejected this approach in
Padilla-Ramirez v. Bible, 862 F.3d at 888–89, as amended, 882 F.3d
at 834–35, to hold that such aliens are detained pursuant to § 1231(a)(6).
The Third Circuit has expressly adopted our approach, Guerrero-
Sanchez v. Warden York Cty. Prison, 905 F.3d 208, 216–19 (3d Cir.
2018), whereas the Fourth Circuit has expressly adopted the Second
Circuit’s approach, Guzman Chavez v. Hott, 940 F.3d 867, 876–77, 882
(4th Cir. 2019).
10 FLORES TEJADA V. GODFREY
withholding-only proceedings are detained pursuant to
§ 1231(a)(6). Because of that decision, the district court
denied Plaintiffs’ request for a preliminary injunction that
would have required the Government to provide bond
hearings pursuant to the regulation applicable to aliens
detained pursuant to § 1226(a). 8 C.F.R. § 1236.1(d)(1).
Thereafter, upon Plaintiffs’ motion, the district court
certified a class of: “[a]ll individuals who (1) were placed in
withholding only proceedings under 8 C.F.R. § 1208.31(e)
in the [District] after having a removal order reinstated, and
(2) have been detained for 180 days (a) without a custody
hearing or (b) since receiving a custody hearing.”
The parties cross-moved for summary judgment on
Plaintiffs’ claims. The magistrate judge recommended
granting partial summary judgment for Plaintiffs on their
statutory claims. The magistrate determined that Diouf II
requires the Government to provide class members with an
individualized bond hearing, except for class members
whose release or removal is not imminent. The magistrate
determined that “[c]lass members must automatically
receive such bond hearings after they have been detained for
180 days and every 180 days thereafter” pursuant to Diouf
II, 634 F.3d at 1092, and Rodriguez III, 804 F.3d at 1085,
1089. These hearings had to “comply with the other
procedural safeguards established in Singh and Rodriguez
III,” with the Government bearing the burden of justifying
continued detention by clear and convincing evidence. The
magistrate recommended partial summary judgment for the
Government on Plaintiffs’ due process claims because “class
members are entitled to relief under § 1231(a)(6), as
construed by the Ninth Circuit in Diouf II.”
In the wake of Jennings, the parties notified the district
court of their views about Jennings’s impact on the summary
FLORES TEJADA V. GODFREY 11
judgment motions. The court determined that Diouf II and
Jennings are not clearly irreconcilable, and thus adopted and
approved the magistrate’s recommendations. The court
entered a final judgment, and a permanent injunction for
Plaintiffs on their statutory claims. The Government timely
appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over the appeal from the district
court’s final judgment pursuant to 28 U.S.C. § 1291. “We
review a grant of summary judgment de novo.” Pavoni v.
Chrysler Grp., LLC, 789 F.3d 1095, 1098 (9th Cir. 2015).
“We review permanent injunctions under three standards:
we review factual findings for clear error, legal conclusions
de novo, and the scope of the injunction for abuse of
discretion.” United States v. Washington, 853 F.3d 946, 962
(9th Cir. 2017).
ANALYSIS
The Government contends that the district court erred by
relying on Diouf II to conclude that the class members here
are entitled to a bond hearing every 180 days before an IJ, at
which the Government bears a clear and convincing burden
of proof. The Government further argues that the district
court impermissibly “re-applied” the canon of constitutional
avoidance to § 1231(a)(6) in contravention of Zadvydas v.
Davis, 533 U.S. 678 (2001), and Clark v. Martinez, 543 U.S.
371 (2005). Most of the Government’s arguments here are
indistinguishable from those we have considered and
rejected in Aleman Gonzalez.
We will not retread our analysis in Aleman Gonzalez, but
instead we reiterate our conclusions there that apply equally
here. First, Diouf II’s construction of § 1231(a)(6) to require
12 FLORES TEJADA V. GODFREY
an individualized bond hearing for an alien subject to
prolonged detention is not clearly irreconcilable with
Jennings. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir.
2003) (en banc). Consistent with Diouf II, 634 F.3d 1086,
1092 & n.13, we affirm the judgment and injunction’s
requirement that the Government must provide class
members with an individualized bond hearing after six
months of detention when a class member’s release or
removal is not imminent. Second, Jennings does not
abrogate our constitutional due process holding in Singh
regarding the applicable burden of proof at the bond hearing.
Consistent with Singh, 638 F.3d at 1203–04, we affirm the
judgment and injunction’s requirement that the Government
must bear a clear and convincing burden of proof to justify
an alien’s continued detention. Third, the district court did
not improperly re-apply the canon of constitutional
avoidance to § 1231(a)(6) or violate Clark. Consistent with
Clark, 543 U.S. at 378, the judgment and injunction apply
the same construction of § 1231(a)(6) to all class members.
Our affirmance of the judgment and injunction, however,
goes no further. In addition to the foregoing requirements
we have affirmed, the district court agreed with the
magistrate judge’s recommendation to order the
Government to provide class members with additional
statutory bond hearings every six months. The district court
imposed this additional bond hearings requirement based on
its conclusion that Jennings did not address § 1231(a)(6) and
that Diouf II remains binding. That conclusion was error
because we did not address the availability of additional
bond hearings every six months in Diouf II. In fact, we have
never squarely interpreted § 1231(a)(6) to require them.
In Diouf II, we applied the canon of constitutional
avoidance to construe § 1231(a)(6) as “requiring an
FLORES TEJADA V. GODFREY 13
individualized bond hearing, before an immigration judge,
for aliens facing prolonged detention under that provision,”
Diouf II, 634 F.3d at 1086 (emphasis added), subject to
whether the alien’s release or removal is imminent, id.
at 1092 n.13. We explained that “[s]uch aliens are entitled
to release on bond unless the government establishes that the
alien is a flight risk or will be a danger to the community.”
Id. at 1086. Although we suggested that greater procedural
safeguards are required as the length of detention increases,
we did so in the context of construing § 1231(a)(6) to require
a bond hearing before an IJ after six months of detention,
something which the government’s post-Zadvydas
regulations did not provide. Id. at 1089–92. We did not
apply the canon to read any other requirements into
§ 1231(a)(6), let alone an additional bond hearings
requirement. Thus, the court could not rely on Diouf II to
sustain the requirement.
As the magistrate judge recognized, our decision in
Rodriguez III—not Diouf II—established an additional bond
hearings requirement in the context of an immigration
detention statute. 4 In Rodriguez III, we relied on Diouf II’s
abstract discussion of the necessity of greater procedural
protections as the length of detention increases to hold that,
in the context of § 1226(a), “the government must provide
periodic bond hearings every six months so that noncitizens
may challenge their continued detention as ‘the period of . . .
4
We question whether Rodriguez III could alone provide the basis
for the additional bond hearings requirement for the § 1231(a)(6) class
here. Rodriguez III made clear that aliens detained pursuant to
§ 1231(a)(6) were not class members in that case. Rodriguez III,
804 F.3d at 1086 (“Simply put, the § 1231(a) class does not exist.”).
Although Rodriguez III imposed additional procedural requirements, it
did so only with respect to aliens detained pursuant to §§ 1225, 1226(a),
and 1226(c). Compare id. with id. at 1086–1090.
14 FLORES TEJADA V. GODFREY
confinement grows.’” Rodriguez III, 804 F.3d at 1089
(quoting Diouf II, 634 F.3d at 1091).
Jennings defined “periodic bond hearing” to encompass
a bond hearing held after an initial six months of detention,
Jennings, 138 S. Ct. at 850–51, and rejected the imposition
of such a “periodic bond hearing” requirement onto
§ 1226(a), id. at 847−48. Although we have already
explained in Aleman Gonzalez why Jennings does not
undercut our construction of § 1231(a)(6) in Diouf II as
requiring a bond hearing after six months of detention, that
determination cannot sustain the additional bond hearings
requirement the district court imposed here. The court did
not identify any authority other than our now-reversed
decision in Rodriguez III to support its additional bond
hearings requirement, nor are we are aware of any.
Rodriguez III cannot support the additional bond hearings
requirement the district court ordered in its judgment and
permanent injunction given Jennings’ reversal.
We have not previously considered whether § 1231(a)(6)
can support an additional bond hearings requirement. While
Jennings did not directly address such a requirement in the
context of § 1231(a)(6), we find its reasoning persuasive.
Jennings made clear that Zadvydas’s construction of
§ 1231(a)(6) to identify six months as a presumptively
reasonable length of detention was already “a notably
generous application of the constitutional-avoidance canon.”
Jennings, 138 S. Ct. at 843. Although Diouf II’s six-month
bond hearing construction coincides with Zadvydas’s six-
month period, we find no support in either Zadvydas’s
reading of § 1231(a)(6) or the statutory text itself to
plausibly construe the provision as requiring additional bond
hearings every six months. We accordingly reverse and
FLORES TEJADA V. GODFREY 15
vacate the judgment and permanent injunction for Plaintiffs
in this regard. 5
In doing so, we reverse and vacate the partial judgment
for the Government on Plaintiffs’ due process claims. The
district court determined that granting summary judgment
for Plaintiffs on the § 1231(a)(6) statutory claim warranted
summary judgment for the Government on Plaintiffs’ due
process claims. We understand the district court to have
effectively treated Plaintiffs’ due process claims as moot.
That is no longer the case given our decision today.
Plaintiffs have requested a remand to allow the district court
to consider their constitutional claims if we reversed on any
statutory issues. At oral argument, the Government did not
object to such a remand. We therefore conclude that a
remand is appropriate so that the district court can consider
Plaintiffs’ constitutional claims. Cf. Evon v. Law Offices of
Sidney Mickell, 688 F.3d 1015, 1035 n.12 (9th Cir. 2012).
CONCLUSION
The district court correctly determined that our
controlling construction of § 1231(a)(6) in Diouf II requires
the Government to provide a bond hearing to class members
detained in the District whose release or removal is not
imminent. The court also properly placed the appropriate
burden of proof on the Government at such a hearing. We
affirm the final judgment and permanent injunction to this
effect.
5
We underscore that our vacatur of the judgment and permanent
injunction’s additional bond hearings requirement as a statutory matter
does not foreclose any class member from pursuing habeas relief in
accordance with Zadvydas.
16 FLORES TEJADA V. GODFREY
We otherwise vacate the judgment and permanent
injunction insofar as they require, as a statutory matter, that
the Government provide class members with additional bond
hearings every six months beyond the initial bond hearing
that Diouf II requires. Consequently, we vacate the
judgment for the Government on Plaintiffs’ due process
claims and remand for further proceedings.
AFFIRMED in part, REVERSED and VACATED in
part, and REMANDED. Each party shall bear its own
costs.
FERNANDEZ, Circuit Judge, concurring in part and
dissenting in part:
I would vacate the district court’s judgment and
permanent injunction entirely. Therefore, I concur in the
majority opinion, for the reasons stated therein, to the extent
that it vacates the judgment and permanent injunction and
remands for further proceedings on Plaintiffs’ constitutional
claim. However, in light of the views I expressed in my
dissenting opinion in Aleman Gonzalez v. Barr, No. 18-
16465, slip op. at 58 (9th Cir. April 7, 2020), I respectfully
dissent from the majority opinion to the extent that it affirms
the district court’s judgment and leaves the permanent
injunction in place.