Xochitl Hernandez v. Jefferson Sessions

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

XOCHITL HERNANDEZ, for No. 16-56829
themselves and on behalf of a class
of similarly-situated individuals; D.C. No.
CESAR MATIAS, for themselves and 5:16-cv-00620-
on behalf of a class of similarly- JGB-KK
situated individuals,
Plaintiffs-Appellees,
OPINION
v.

JEFFERSON B. SESSIONS III, Attorney
General; JAMES MCHENRY, Acting
Director, Executive Office for
Immigration Review; ELAINE C.
DUKE, Acting Secretary, Department
of Homeland Security; THOMAS D.
HOMAN, Acting Director,
Immigration and Customs
Enforcement (ICE); DAVID
JENNINGS, Los Angeles Field Office
Director 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; MIKE KREUGER,
Captain, Orange County Sheriff’s
2 HERNANDEZ V. SESSIONS

Department; SANDRA HUTCHENS,
Sheriff, Orange County,
Defendants-Appellants.

Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding

Argued and Submitted July 11, 2017
Pasadena, California

Filed October 2, 2017

Before: Stephen Reinhardt, Ferdinand F. Fernandez,
and Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Reinhardt;
Partial Concurrence and Partial Dissent by
Judge Fernandez
 HERNANDEZ V. SESSIONS 3

SUMMARY *

Immigration

The panel affirmed the district court’s order granting a
preliminary injunction in favor of Plaintiffs, a class of non-
citizens in removal proceedings who are detained under
8 U.S.C. § 1226(a) in the Central District of California and
are unable to afford the bond set by immigration officials.

The panel held that 8 U.S.C. §§ 1226(e) and
1252(a)(2)(B), which restrict judicial review of certain
discretionary immigration decisions, did not bar jurisdiction
of Plaintiffs’ claim that the discretionary process itself is
constitutionally flawed. The panel also held that the district
court did not err in waiving the prudential requirement that
Plaintiffs exhaust their administrative remedies.

The panel held that the district court did not abuse its
discretion in granting a preliminary injunction requiring
immigration officials when making bond determinations to,
inter alia, consider (1) financial ability to obtain bond and
(2) alternative conditions of release.

Concurring in part and dissenting in part, Judge
Fernandez agreed that the government must consider
financial ability and alternative conditions of supervision, a
requirement he found to be essentially prohibitory.
However, Judge Fernandez dissented as to the breadth of the
injunction with respect to its mandatory terms requiring the

*
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 HERNANDEZ V. SESSIONS

government to conduct new bond hearings within 45 days
for those who are currently detained and requiring the
government to consult with class counsel to develop and
agree to guidelines.

COUNSEL

Sherease Rosalyn Pratt (argued), Joseph Hardy, and
Adrienne Zack, Trial Attorneys; Colin A. Kisor, Deputy
Director; William C. Peachey, Director; Chad A. Readler,
Acting Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Defendants-Appellants.

Michael Kaufman (argued) and Ahilan T. Arulanantham,
ACLU Foundation of Southern California, Los Angeles,
California; Michael Tan and Judy Rabinovitz, ACLU
Foundation Immigrants’ Rights Project, New York, New
York; Stephen B. Kang, ACLU Foundation Immigrants’
Rights Project, San Francisco, California; Matthew E. Sloan,
Douglas A. Smith, Devon L. Hein, Matthew E. Delgado,
Michael D. Hidalgo, and John C. Korevec, Skadden Arps
Slate Meagher & Flom LLP, Los Angeles, California; for
Plaintiffs-Appellees.

John L. Ewald, Kelly M. Daley, Jasmine M. Owens, and Ned
Hirschfeld, Orrick Herrington & Sutcliffe LLP, New York,
New York; Linda Klein, American Bar Association,
Chicago, Illinois; for Amicus Curiae American Bar
Association.
Alan E. Schoenfeld, Wilmer Cutler Pickering Hale and Dorr
LLP, New York, New York; Leon T. Kenworthy and Webb
Lyons, Wilmer Cutler Pickering Hale and Dorr LLP,
Washington, D.C.; for Amici Curiae Nine Retired
 HERNANDEZ V. SESSIONS 5

Immigration Judges and Board of Immigration Appeals
Members.

Peter R. Afrasiabi and Oscar M. Orozco-Botello, Newport
Beach, California; Anne Lai, University of California, Irvine
School of Law—Immigrant Rights Clinic, Irvine,
California; for Amici Curiae University of California, Irvine
School of Law—Immigrant Rights Clinic; Asian Americans
Advancing Justice—Los Angeles; Brandeis Human Rights
Advocacy Program; Center for Gender & Refugee Studies;
Coalition to Abolish Slavery & Trafficking; Columbia Law
School Immigrants’ Rights Clinic; Community Legal
Services in East Palo Alto; Cornell Law School’s Asylum
and Convention Against Torture Appellate Clinic; Council
on American-Islamic Relations; Immigrant Defenders Law
Center, Los Angeles; Las Crisantemas; Loyola Immigrant
Justice Clinic; National Day Laborer Organizing Network;
New York Law School, Safe Passage Project Clinical Class;
Northwest Immigrant Rights Project; Public Counsel; Rapid
Response Network; Florence Immigrant and Refugee Rights
Project; University of California Davis School of Law
Immigration Law Clinic; University of California, Irvine
School of Law Immigrant Rights Clinic; University of
Colorado Criminal/Immigration Defense Clinic; University
of Nevada, Las Vegas, Immigration Clinic; and Western
State College of Law Immigration Clinic.

Peter H. Kang, Sidley Austin LLP, Palo Alto, California;
Sue Wang, Kelly A. Rosencrans, and Alex Baxter, Sidley
Austin LLP, San Francisco, California; Jayashri Srikantiah,
Immigrants’ Rights Clinic, Stanford Law School, Stanford,
California; for Amici Curiae National Association of
Criminal Defense Lawyers and Center for Legal and
Evidence-Based Practices.
6 HERNANDEZ V. SESSIONS

OPINION

REINHARDT, Circuit Judge:

“Courts have confronted, in diverse settings, the age-old
problem of providing equal justice for poor and rich, weak
and powerful alike.” 1 In this case, we reaffirm our
commitment to this principle of fairness for all as embodied
in the Due Process Clause of the Fifth Amendment. Here, it
prohibits our government from discriminating against the
poor in providing access to fundamental rights, including the
freedom from physical restraints on individual liberty.

Deprivations of physical liberty are a pervasive feature
of our current system of immigration enforcement. While the
temporary detention of non-citizens may sometimes be
justified by concerns about public safety or flight risk, the
government’s discretion to incarcerate non-citizens is
always constrained by the requirements of due process: no
person may be imprisoned merely on account of his
poverty. 2

In the present case, the government appeals from the
district court’s order entering a class-wide preliminary
injunction in favor of Plaintiffs, a class of non-citizens in
removal proceedings who are detained under 8 U.S.C.
§ 1226(a) in the Central District of California. The
government has already determined that the class members
are neither dangerous nor enough of a flight risk to require

1
M.L.B. v. S.L.J., 519 U.S. 102, 110 (1996) (quoting Griffin v.
Illinois, 351 U.S. 12, 16 (1956)) (quotation marks omitted).

2
Bearden v. Georgia, 461 U.S. 660, 671 (1983).
 HERNANDEZ V. SESSIONS 7

detention without bond. 3 The class members nonetheless
remain detained because they are unable to afford bond in
the amount set by the immigration officials.

Plaintiffs sought injunctive relief in the district court
against the government’s policy of failing to require
immigration officials to consider financial circumstances
and alternative conditions of release at bond hearings.
Plaintiffs argued that the policy violated their constitutional
and statutory rights under the Due Process Clause of the
Fifth Amendment, the Fifth Amendment’s equal protection
guarantee, the Excessive Bail Clause of the Eighth
Amendment, and 8 U.S.C. § 1226(a). 4

The district court granted a preliminary injunction
requiring immigration officials when making bond
determinations to, inter alia, consider (1) financial ability to
obtain bond and (2) alternative conditions of release.

3
Plaintiffs describe the class as “individuals in removal proceedings
whom immigration officials have determined are not a danger to the
community or a flight risk that requires detention, and therefore have
ordered their release on bond.” The government responds by pointing
out that “[a] bond order merely establishes an alien’s eligibility for
release from detention, contingent on the non-negotiable condition that
they post a bond to alleviate their higher risk of absconding.” There is no
actual disagreement between the parties on this point. The fact that ICE
or an IJ has determined that a non-citizen is eligible for release on bond
shows that he is not so great a flight risk as to require detention without
bond. The question then remains: what amount of bond is reasonably
likely to ensure the non-citizen’s appearance and how should that
amount be determined?
4
The § 1226(a) claim is presented exclusively in terms of
constitutional avoidance, a doctrine which is inapplicable here. Cf.
Zadvydas v. Davis, 533 U.S. 678, 689 (2001).
8 HERNANDEZ V. SESSIONS

Because the district court did not abuse its discretion in
granting the injunction, we affirm.

LEGAL BACKGROUND

Plaintiffs are a class of non-citizens detained pursuant to
8 U.S.C. § 1226(a) on a bond set by a Department of
Homeland Security (DHS) or Immigration and Customs
Enforcement (ICE) 5 official or an Immigration Judge (IJ) in
the Central District of California. Under § 1226(a), the
Attorney General has “general, discretionary” authority to
detain a non-citizen “pending a decision on whether the alien
is to be removed from the United States.” Casas-Castrillon
v. Dep’t of Homeland Sec., 535 F.3d 942, 948 (9th Cir. 2008)
(quoting 8 U.S.C. § 1226(a)). Section 1226(a) also
authorizes the Attorney General, in his discretion, to release
these non-citizen detainees “on bond of at least $1,500” or
“conditional parole.” 8 U.S.C. § 1226(a)(2).

When a non-citizen is detained pursuant to § 1226(a),
“the DHS district director makes an initial custody
determination and may allow the alien’s release on bond.”
Prieto-Romero v. Clark, 534 F.3d 1053, 1058 (9th Cir. 2008)
(citing 8 C.F.R. § 236.1(d)). 6 “If the alien objects to the
director’s bond determination, he may request a bond
redetermination hearing before an IJ at any time before the
issuance of an administratively final order of removal.” Id.
(citing 8 C.F.R. §§ 236.1(d), 1003.19(c)). At this stage, the

5
ICE is a subdivision of DHS.

6
The record indicates that these determinations are delegated to ICE
Deportation Officers who make them based, at least in part, on
standardized “Risk Classification Assessments” from which they may
require supervisory approval to deviate.
 HERNANDEZ V. SESSIONS 9

burden is on the non-citizen to “establish to the satisfaction
of the Immigration Judge . . . that he or she does not present
a danger to persons or property, is not a threat to the national
security, and does not pose a risk of flight.” In re Guerra,
24 I. & N. Dec. 37, 38 (BIA 2006). 7

If the DHS officer or IJ determines that the non-citizen
does not pose a danger and is likely to appear at future
proceedings, then he may release the non-citizen on bond or
other conditions of release. See Prieto-Romero, 534 F.3d at
1058; 8 C.F.R. §§ 236.1(d), 1003.19. If the non-citizen
disagrees with the IJ’s bond determination or wishes to
challenge the amount of bond set by the IJ, he may also

7
The BIA has identified nine nonexclusive factors (the “Guerra
factors”) to consider when determining whether a non-citizen is entitled
to release on bond, and if so, the amount of such bond:

(1) whether the alien has a fixed address in the United
States; (2) the alien’s length of residence in the United
States; (3) the alien’s family ties in the United States,
and whether they may entitle the alien to reside
permanently in the United States in the future; (4) the
alien’s employment history; (5) the alien’s record of
appearance in court; (6) the alien’s criminal record,
including the extensiveness of criminal activity, the
recency of such activity, and the seriousness of the
offenses; (7) the alien’s history of immigration
violations; (8) any attempts by the alien to flee
prosecution or otherwise escape from authorities; and
(9) the alien’s manner of entry to the United States.

In re Guerra, 24 I. & N. Dec. at 40.
10 HERNANDEZ V. SESSIONS

“appeal the IJ’s bond decision to the BIA.” Prieto-Romero,
534 F.3d at 1058 (citing 8 C.F.R. § 236.1(d)(3)). 8

At these initial bond determinations, the government
currently does not require ICE or IJs to consider a non-
citizen’s financial circumstances in setting the amount of a
bond or whether non-monetary alternative conditions of
release would suffice to ensure his future appearance. In fact,
according to the declaration of one legal services provider,
some IJs refuse to consider a person’s financial
circumstances, even when these circumstances are raised by

8
Under our precedent, the government may not detain a non-citizen
under § 1226(a) for “a prolonged period without providing him a neutral
forum in which to contest the necessity of his continued detention.”
Casas-Castrillon, 535 F.3d at 949. Therefore, we have held that the
government “must provide periodic bond hearings every six months so
that noncitizens may challenge their continued detention as the period of
. . . confinement grows.” Rodriguez v. Robbins, 804 F.3d 1060, 1089 (9th
Cir. 2015) (Rodriguez III), cert. granted sub nom. Jennings v. Rodriguez,
136 S. Ct. 2489 (2016) (internal citation omitted). At these “Rodriguez
hearings,” unlike at the initial bond determination, “the government must
prove by clear and convincing evidence that an alien is a flight risk or a
danger to the community to justify denial of bond.” Rodriguez III,
804 F.3d at 1087.

The Supreme Court granted the government’s petition for writ of
certiorari in Rodriguez III, and on June 26, 2017, the Supreme Court
restored Jennings v. Rodriguez, No. 15-1204, to the calendar for
reargument during the October 2017 term. The primary issue in the
Supreme Court’s review of Rodriguez III is whether the non-citizens are
entitled to the recurring hearings at all; by contrast, the parties agree that
the initial hearings at issue in this case are required by statute. Moreover,
the Supreme Court’s review of our holding in Rodriguez III that non-
citizens are entitled to certain unrelated additional procedural protections
during the recurring bond hearings after prolonged detention does not
affect our consideration of the lesser constitutional procedural
protections sought at the initial bond hearings in this case.
 HERNANDEZ V. SESSIONS 11

a detainee’s counsel. In this case, Plaintiffs sought a
preliminary injunction against the government’s policy of
failing to require DHS and IJs to consider these factors in
setting bond. 9

FACTUAL BACKGROUND

A. Plaintiff Hernandez

Xochitl Hernandez was born in Mexico in 1976. She
immigrated to the United States in the late 1980s at
approximately age 13. She has five children and four
grandchildren, all of whom are United States citizens. Before
her arrest, Hernandez lived with family members in a rented
house in Los Angeles. She avers that her family has few
assets or savings.

On February 24, 2016, Hernandez was visiting a friend’s
house. Los Angeles Police Department (LAPD) and ICE
officers, who were apparently searching for a suspected gang
member, arrived at the house. Hernandez was detained and
9
Plaintiffs’ suit challenges a total of four policies and practices
relating to initial custody determinations: (1) “immigration officials are
not required to consider an immigration detainee’s financial ability to
pay when setting a monetary bond”; (2) “when they do set a bond
amount, immigration officials require noncitizens to post the full cash
bond amount to be released,” instead of permitting them to post other
assets as collateral; (3) “immigration officials are not required to
consider whether alternative conditions of supervision (such as
electronic monitoring or periodic reporting requirements), alone or in
combination with a lower bond amount, would be sufficient to mitigate
flight risk”; and (4) the government does “not recognize a person’s
financial inability to post bond, despite having made good faith efforts
to do so, as a ‘changed circumstance’ that warrants a new bond hearing.”
They sought preliminary relief, however, only with respect to
(1) consideration of financial circumstances and (3) alternative
conditions of release.
12 HERNANDEZ V. SESSIONS

taken to an LAPD station, where she was questioned. She
was not charged with any crime.

Later that day, Hernandez was transferred to ICE
custody, where an officer questioned her about her identity
and immigration history. Hernandez declared that the ICE
officer did not mention release on bond, nor did he ask her
about her financial circumstances or what bond amount she
could afford. That same day, DHS served her with a Notice
to Appear, charging her with inadmissibility to the United
States under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present
in the United States without admission or parole. An ICE
officer determined that Hernandez should be detained
without bond at the Adelanto Detention Center, pending her
removal proceedings.

About two weeks later, Hernandez appeared pro se for a
bond hearing in Immigration Court. The IJ did not ask any
questions about her financial circumstances during the
hearing, and Hernandez did not request that he consider her
ability to obtain a bond in assessing the amount to be set.

The IJ then issued a written bond decision ordering
Hernandez’s release upon payment of a $60,000 bond. He
determined that Hernandez was not a danger to the
community and that a bond would be sufficient to mitigate
any risk of flight. He also conditioned her release on
refraining from entering or coming within a quarter-mile of
three gang-related addresses and from associating or
contacting any member of the La Mirada street gang.
Hernandez avers that she and her family could not afford to
pay a $60,000 bond.

About a month later, Hernandez, again appearing pro se,
requested that the IJ reconsider her bond amount. The IJ
denied her request for reconsideration because there were no
 HERNANDEZ V. SESSIONS 13

“changed circumstances.” In addition, the IJ remarked that
he “did consider ability to pay” in his prior bond
determination, but there were “significant issues” in her case
that required bond in the amount he had set.

On August 23, 2016, Hernandez appeared, now with
counsel, for a bond hearing pursuant to Rodriguez III before
a different IJ. Hernandez testified that she and her family had
limited financial resources and indicated that she could only
afford a $1,500 bond at most. She also expressed her
willingness to be released under alternative conditions, such
as an ankle monitor.

The next week, the IJ ordered Hernandez released from
custody upon filing of a $5,000 bond and enrollment in the
“Alternatives to Detention” program. The IJ’s decision did
not discuss Hernandez’s ability to obtain a bond in the
established amount. Hernandez was subsequently released
upon filing a bond and was placed on ankle monitoring. 10

A few weeks later, the BIA sustained Hernandez’s
appeal of her first $60,000 bond, vacated the IJ’s decision on
the ground that the bond was excessive, and remanded for
further proceedings. The BIA did not address Hernandez’s
ability to post bond, despite the fact that she raised that issue
on appeal.

10
Hernandez could not afford even the $5,000 bond. She obtained
her release because a community organization, the National Day Labor
Organizing Network, raised enough money to post her bond.
14 HERNANDEZ V. SESSIONS

B. Plaintiff Matias

Cesar Matias was born in Honduras on September 9,
1978. 11 Matias is a gay man who fled Honduras to escape
persecution on account of his sexual orientation. He has
resided in Los Angeles since May 2005, when he first
entered the United States. Prior to his detention, he worked
as a hairstylist and in a clothing factory. He avers that he
spent all of his earnings on basic necessities and has no
savings or any other significant assets. At some point, he
suffered a conviction for possession of a controlled
substance and was given a deferred judgment for driving
without a license. He was also arrested twice, but not
convicted, on prostitution charges.

On March 29, 2012, Matias was taken into ICE custody
and was interviewed by an ICE officer at a processing center
in downtown Los Angeles. When the ICE officer informed
him that he would be detained, Matias asked whether he
could be released on bond. The officer responded that he
could ask the IJ, without asking Matias any questions about
his financial resources or the amount of bond he could
afford. That same day, ICE issued a Notice to Appear,
initiating removal proceedings against Matias.

Seven months later, Matias appeared for a bond hearing
before an IJ. During the hearing, the IJ did not ask any
questions about Matias’s ability to obtain a bond or his
financial circumstances. At the end of the hearing, the IJ set
bond at $3,000.

11
The government states that Matias’s “true identity, including his
name and date of birth, citizenship, and nationality, are unknown.”
Matias has presented false documents and testimony to police, ICE
officials, and border officials regarding his name and nationality.
 HERNANDEZ V. SESSIONS 15

Three months after the bond hearing, Matias requested
to be released from detention to retrieve documents that
would help his case. The IJ refused to reduce his bond and
stated that the bond amount was “pretty generous.” The IJ
also noted that she could not consider reducing the bond
amount absent a formal motion.

Eighteen months after denying that release request, the
IJ conducted another bond hearing on Matias’s motion. At
that hearing, she stated that Matias’s bond was “reasonable”
and ordered that it remain at $3,000, without inquiring as to
Matias’s financial circumstances or indicating that she
considered alternative conditions of release. When asked by
the Immigration Judge if he wanted to appeal, Matias
responded: “No. I prefer to be detained.”

Sixteen months later, the IJ conducted another bond
hearing for Matias. The IJ again did not question Matias
about his financial circumstances, and ordered that bond
remain at $3,000. 12

Finally, more than four years after he was first detained,
Matias was released from ICE custody when a local
community organization, Community Initiatives for Visiting
Immigrants in Confinement, raised enough money for him
to post his bond.

PROCEDURAL BACKGROUND

On April 6, 2016, Plaintiffs filed a class action complaint
seeking habeas, declaratory, and injunctive relief against the

12
There is no evidence in the record of either Hernandez’s or
Matias’s case that ICE or the IJ considered alternative conditions of
release. The government does not contend that ICE or the IJs considered
such alternatives.
16 HERNANDEZ V. SESSIONS

Attorney General, the Director of the Executive Office for
Immigration Review (EOIR), the Secretary of DHS, the
Director of ICE, the Director of the Los Angeles Field Office
of ICE, the Warden of the Adelanto Detention Facility, the
Jail Administrator of Santa Ana City Jail, the Chief of the
Santa Ana City Department, two Captains of the Orange
County Sheriff’s Department, and the Orange County
Sheriff. Plaintiffs contended that the government’s bond-
setting policies and practices violated: (1) the Due Process
Clause of the Fifth Amendment; (2) their equal protection
rights under the Fifth Amendment; (3) the Excessive Bail
Clause of the Eighth Amendment; and (4) 8 U.S.C.
§ 1226(a).

On April 22, 2016 Plaintiffs filed a Motion for Class
Certification pursuant to Federal Rule of Civil Procedure 23,
seeking to certify a class encompassing “all individuals who
are or will be detained pursuant to 8 U.S.C. § 1226(a) on a
bond set by an [ICE] officer or an [IJ] in the Central District
of California.”

On May 19, Plaintiffs filed a Motion for Preliminary
Injunction requiring, inter alia, immigration officials to
“consider ability to pay when setting a bond amount and
release on alternative conditions where appropriate.” On
June 10, Defendants filed a motion to dismiss for lack of
jurisdiction and failure to state a claim. On August 22, the
district court held a hearing on these three motions.

The district court denied Defendants’ motion to dismiss,
granted Plaintiffs’ motion for class certification, and granted
Plaintiffs’ motion for a preliminary injunction. In response
to Defendants’ motion to dismiss, the district court waived
the typical requirement that plaintiffs’ exhaust their
administrative remedies regarding the challenged bond
determinations because: (1) Plaintiff’s statutory and
 HERNANDEZ V. SESSIONS 17

constitutional claims presented purely legal questions that
did not require development of an administrative record;
(2) waiver of exhaustion would “not encourage future
habeas petitioners to bypass the administrative scheme” in
light of the “discreteness of the legal questions presented”;
and (3) BIA review of Plaintiffs’ claims would be futile
because the BIA’ s position on whether consideration of
ability to post bond is required is “already set.” The district
judge also rejected Defendants’ arguments that 8 U.S.C.
§ 1226(e) and 8 U.S.C. § 1252(a)(2)(B) bar federal courts
from exercising jurisdiction over Plaintiffs’ claims, holding
that federal courts retain habeas jurisdiction over
constitutional claims and claims raising questions of law
under 28 U.S.C. § 2241. Finally, the district court rejected
Defendants’ arguments that the named Plaintiffs’ lacked
standing to seek injunctive relief because they had been
released from custody after the action was filed because
standing “is assessed as of the time an action was initiated
and is unaffected by subsequent developments.” The district
court also noted that the named plaintiffs could continue
seeking relief on behalf of the class even after they were
released from custody “because [their] claims are ‘transitory
in nature and may otherwise evade review.’” Preap v.
Johnson, 831 F.3d 1193, 1197 n.6 (9th Cir. 2016) (quoting
Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1090–91 (9th
Cir. 2011)).

Regarding Plaintiffs’ motion for a preliminary
injunction, the district court concluded that Plaintiffs were
likely to succeed on the merits of their challenges under the
Due Process Clause, the Fifth Amendment’s equal
protection guarantee, the Excessive Bail Clause, and
8 U.S.C. § 1226(a). The court found that Plaintiffs were
likely to suffer irreparable harm as a result of the deprivation
of their constitutional rights and that the balance of equities
18 HERNANDEZ V. SESSIONS

and public interest weighed in favor of granting a
preliminary injunction. Therefore, it granted Plaintiffs’
motion. 13

Under the terms of the preliminary injunction, ICE and
IJs are required to consider, in all future hearings, a
detainee’s financial circumstances in determining the
amount of the bond to be set and to consider whether the
person may be released on alternative conditions of
supervision. The order further requires that the parties meet
and confer in good faith to develop implementation
guidelines and instructions for ICE and IJs, that the
government submit a list of class members to Plaintiffs, and
that the government conduct new bond hearings for current
class members whose bonds were set before the order went
into effect.

Defendants filed a notice of appeal and applied ex parte
for a stay of all proceedings pending its appeal. After the
district court denied the stay, the government renewed its
application before this court, which granted it. 14

STANDARD OF REVIEW

“We review the district court’s decision to grant or deny
a preliminary injunction for abuse of discretion.” Sw. Voter
Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th
Cir. 2003) (en banc) (per curiam) (citations omitted). “Our
review is limited and deferential.” Id. The district court

13
The district court also granted Plaintiffs’ Motion for Class
Certification, which is not at issue in this appeal.
14
We issued an order shortly before oral argument clarifying that
the stay applied only to the preliminary injunction, rather than to “all
district court proceedings.”
 HERNANDEZ V. SESSIONS 19

abuses its discretion when it makes an error of law. Id. “We
review the district court’s legal conclusions de novo, the
factual findings underlying its decision for clear error.” K.W.
ex rel. D.W. v. Armstrong, 789 F.3d 962, 969 (9th Cir. 2015)
(citation omitted).

DISCUSSION

I.

We first address whether jurisdiction over Plaintiffs’
claims is proper. The government contends that the we lack
jurisdiction for two reasons: (1) 8 U.S.C. §§ 1226(e) and
1252(a)(2)(B) bar federal court jurisdiction over the claims,
and (2) the named Plaintiffs failed to exhaust their
administrative remedies before pursuing relief in federal
court. The government is wrong on both counts.

First, 8 U.S.C. §§ 1226(e) and 1252(a)(2)(B) do not bar
jurisdiction over Plaintiffs’ claims. Section 1226(e) provides
that:

The Attorney General’s discretionary
judgment regarding the application of this
section shall not be subject to review. No
court may set aside any action or decision by
the Attorney General under this section
regarding the detention or release of any alien
or the grant, revocation, or denial of bond or
parole.

In other words, custody determinations within the discretion
of the Attorney General are not subject to judicial review.
Thus, we have held that § 1226(e) precludes jurisdiction
over claims that an IJ, exercising his statutorily-delegated
discretion, “set an excessively high bond amount.” Prieto-
20 HERNANDEZ V. SESSIONS

Romero, 534 F.3d at 1067. That provision does not,
however, preclude “habeas jurisdiction over constitutional
claims or questions of law.” Leonardo v. Crawford, 646 F.3d
1157, 1160 (9th Cir. 2011) (quoting Singh v. Holder,
638 F.3d 1196, 1202 (9th Cir. 2011)). “[C]laims that the
discretionary [bond] process itself was constitutionally
flawed are cognizable in federal court on habeas because
they fit comfortably within the scope of § 2241.” Singh,
638 F.3d at 1202 (citations omitted).

Similarly, 8 U.S.C. § 1252(a)(2)(B)(ii) restricts judicial
review of the Executive branch’s discretionary decisions:

Notwithstanding any other provision of law
(statutory or nonstatutory), including section
2241 of Title 28, or any other habeas corpus
provision, and sections 1361 and 1651 of
such title, and except as provided in
subparagraph (D), and regardless of whether
the judgment, decision, or action is made in
removal proceedings, no court shall have
jurisdiction to review . . . any other decision
or action of the Attorney General or the
Secretary of Homeland Security the authority
for which is specified under this subchapter
to be in the discretion of the Attorney General
or the Secretary of Homeland Security, other
than the granting of relief under section
1158(a) of this title.

8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added). “Like
§ 1226(e), § 1252(a)(2)(B)(ii) restricts jurisdiction only with
respect to the executive’s exercise of discretion. It does not
limit habeas jurisdiction over questions of law.” Singh,
638 F.3d at 1202 (emphasis added). Habeas jurisdiction over
 HERNANDEZ V. SESSIONS 21

such legal and constitutional claims is proper only if they are
“colorable,” i.e., “the claim must have some possible
validity.” Torres-Aguilar v. I.N.S., 246 F.3d 1267, 1271 (9th
Cir. 2001) (quotation marks omitted). “[A] petitioner may
not create the jurisdiction that Congress chose to remove
simply by cloaking an abuse of discretion argument in
constitutional garb.” Id.

The government’s contention that Plaintiffs have
attempted to create jurisdiction over a challenge to
discretionary bond determinations “through the pretext of
constitutional claims” mischaracterizes Plaintiffs’ challenge.
They do not challenge the amount of their initial bonds as
“excessive[]”, cf. Prieto-Romero, 534 F.3d at 1067; instead,
like the petitioner in Singh, who challenged, inter alia, the
constitutionality of the standard of proof applied in his Casas
hearing, 638 F.3d at 1203, Plaintiffs in the present case claim
that the “discretionary process itself was constitutionally
flawed” at their initial bond determinations. Id. at 1202. Thus
their claims are “cognizable in federal court on habeas,” id.,
despite the jurisdictional restrictions in §§ 1226(e) and
1252(a)(2)(B).

Second, the district court did not err in waiving the
requirement that plaintiffs exhaust their administrative
remedies before pursuing their claims in federal court. The
exhaustion requirement is prudential, rather than
jurisdictional, for habeas claims. Singh, 638 F.3d at 1203 n.3
(citing Arango Marquez v. I.N.S., 346 F.3d 892, 897 (9th Cir.
2003)). We may require prudential exhaustion when:

(1) agency expertise makes agency
consideration necessary to generate a proper
record and reach a proper decision;
(2) relaxation of the requirement would
encourage the deliberate bypass of the
22 HERNANDEZ V. SESSIONS

administrative scheme; and
(3) administrative review is likely to allow
the agency to correct its own mistakes and to
preclude the need for judicial review.

Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007)
(citations omitted). If a petitioner fails to exhaust
prudentially required administrative remedies, then “a
district court ordinarily should either dismiss the petition
without prejudice or stay the proceedings until the petitioner
has exhausted remedies.” Leonardo, 646 F.3d at 1160.
Nonetheless, even if the three Puga factors weigh in favor of
prudential exhaustion, a court may waive the prudential
exhaustion requirement if “administrative remedies are
inadequate or not efficacious, pursuit of administrative
remedies would be a futile gesture, irreparable injury will
result, or the administrative proceedings would be void.”
Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004)
(citation and quotation marks omitted).

Here, after considering the Puga factors, the district
court correctly decided to waive the prudential exhaustion
requirement. First, an administrative appellate record is not
necessary to resolve the purely legal questions presented by
Plaintiffs’ challenge to the government’s policy of refusing
to require ICE and IJs to consider financial circumstances
and alternative conditions of release in bond determinations.
Cf. Singh, 638 F.3d at 1203 n.3 (holding administrative
record was not necessary to decide petitioner’s challenge to
the constitutionality of procedures at Casas hearings).

Second, waiver of the prudential exhaustion requirement
will not “encourage the deliberate bypass of the
administrative scheme” in future cases, because, once the
questions presented here are decided, they “should cease to
 HERNANDEZ V. SESSIONS 23

arise.” Id. Any risk of deliberate bypass of administrative
procedures is further reduced by the fact that district courts
will only have jurisdiction in the “rare case[s]” where future
plaintiffs allege a “colorable” constitutional or legal
challenge to the government’s procedures. Torres-Aguilar,
246 F.3d at 1271; cf. El Rescate Legal Servs., Inc. v. Exec.
Office of Immigration Review, 959 F.2d 742, 747 (9th Cir.
1991).

Third, we must consider whether “administrative review
is likely to allow the agency to correct its own mistakes and
to preclude the need for judicial review.” Noriega-Lopez v.
Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003) (citation and
quotation marks omitted). Regarding this third factor,
however, “where the agency’s position on the question at
issue appears already set, and it is ‘very likely’ what the
result of recourse to administrative remedies would be, such
recourse would be futile and is not required.” El Rescate,
959 F.2d at 747 (citation omitted). In the present case, the
government has implicitly conceded that the BIA’s position
on the question at issue is already set by acknowledging that,
under Guerra, “no single factor is mandatory or dispositive.”
Furthermore, as the district court noted, in several
unpublished cases the BIA has concluded that an alien’s
ability to pay the bond amount is not a relevant bond
determination factor. See, e.g., In re Castillo-Cajura, 2009
WL 3063742, *1 (B.I.A. Sept. 10, 2009); In re Serrano-
Cordova, 2009 Immig. Rptr. LEXIS 2444, *2 (B.I.A. June
17, 2009); In re Sandoval-Gomez, 2008 WL 5477710, *1
(B.I.A. Dec. 15, 2008); In re Castillo-Leyva, 2008 Immig.
Rptr. LEXIS 10396, *1 (B.I.A. Sept. 18, 2008). 15 These

15
Plaintiffs filed a redacted copy of another such BIA decision that
is not available in the online databases. That decision was an appeal from
a bond determination within the Central District of California, and is
24 HERNANDEZ V. SESSIONS

unpublished cases, along with Guerra’s failure to require
consideration of financial circumstances, are sufficient
evidence that the BIA’s position is set and that exhaustion
would be futile.

There are no defects in our jurisdiction over this case.

II.

We now address whether the district court abused its
discretion in granting Plaintiffs’ motion for a preliminary
injunction. We conclude that it did not.

In order to obtain a preliminary injunction a plaintiff
must establish (1) “that he is likely to succeed on the merits,”
(2) “that he is likely to suffer irreparable harm in the absence
of preliminary relief,” (3) “that the balance of equities tips in
his favor,” and (4) “that an injunction is in the public
interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 20 (2008). Under our “sliding scale” approach, “the
elements of the preliminary injunction test are balanced, so
that a stronger showing of one element may offset a weaker
showing of another.” Pimentel v. Dreyfus, 670 F.3d 1096,
1105 (9th Cir. 2012) (per curiam) (citations omitted).

dated April 3, 2017. According to the BIA, “an Immigration Judge is not
required to consider an alien’s ability to pay when setting a bond.” We
thus reject the government’s contention that the cases cited above do not
reflect current policy as well as its speculation that the BIA “may decide
to further clarify the Guerra standard.”
 HERNANDEZ V. SESSIONS 25

A.

Plaintiffs are likely to succeed on the merits of their
claim under the Due Process Clause. 16 The Due Process
Clause of the Fifth Amendment prohibits the Government
from depriving individuals of their life, liberty, or property,
without due process of law. U.S. Const. amend. V. In
particular, “[f]reedom from imprisonment—from
government custody, detention, or other forms of physical
restraint—lies at the heart of the liberty that Clause
protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
These protections “appl[y] to all ‘persons’ within the United
States, including aliens, whether their presence here is
lawful, unlawful, temporary, or permanent,” and to
immigration detention as well as criminal detention. Id. at
693. 17

In the context of immigration detention, it is well-settled
that “due process requires adequate procedural protections
to ensure that the government’s asserted justification for
physical confinement outweighs the individual’s

16
Although the district court also concluded that Plaintiffs were
likely to succeed on the merits of their Fifth Amendment equal protection
and Eighth Amendment Excessive Bail Clause claims and granted the
injunction on the basis of all three constitutional claims, we ultimately
affirm on the basis of the due process claim and therefore express no
view as to the equal protection or Eighth Amendment claims.
17
Although the Supreme Court has described Congress’s power
over the “policies and rules for exclusion of aliens” as “plenary,” see,
e.g., Kleindienst v. Mandel, 408 U.S. 753, 769 (1972), and held that this
court must generally “defer to Executive and Legislative Branch
decisionmaking in that area,” Zadvydas, 533 U.S. at 695, it is well-
established that the Due Process Clause stands as a significant constraint
on the manner in which the political branches may exercise their plenary
authority. Id.
26 HERNANDEZ V. SESSIONS

constitutionally protected interest in avoiding physical
restraint.” Singh, 638 F.3d at 1203 (quoting Casas-
Castrillon, 535 F.3d at 950). The government has legitimate
interests in protecting the public and in ensuring that non-
citizens in removal proceedings appear for hearings, but any
detention incidental to removal must “bear[] [a] reasonable
relation to [its] purpose.” Zadvydas, 533 U.S. at 690 (quoting
Jackson v. Indiana, 406 U.S. 715, 738 (1972)); see also
Tijani v. Willis, 430 F.3d 1241, 1249 (9th Cir. 2005)
(Tashima, J., concurring). Detention of an indigent “for
inability to post money bail” is impermissible if the
individual’s “appearance at trial could reasonably be assured
by one of the alternate forms of release.” Pugh v. Rainwater,
572 F.2d 1053, 1058 (5th Cir. 1978) (en banc).

Given that the detainees have been determined to be
neither dangerous nor so great a flight risk as to require
detention without bond, the question before us is: Is
consideration of the detainees’ financial circumstances, as
well as of possible alternative release conditions, necessary
to ensure that the conditions of their release will be
reasonably related to the governmental interest in ensuring
their appearance at future hearings? 18 We conclude that the
answer is yes.

A bond determination process that does not include
consideration of financial circumstances and alternative
release conditions is unlikely to result in a bond amount that
is reasonably related to the government’s legitimate

18
By definition, an ICE officer or an IJ has already determined that
the class members are not a danger to the community or so great a flight
risk that no bond would secure their appearance; otherwise, they would
simply be ineligible for release on bond and thus not a member of the
class. See In re Guerra, 24 I. & N. Dec. at 38.
 HERNANDEZ V. SESSIONS 27

interests. Since the government’s purpose in conditioning
release on the posting of a bond in a certain amount is to
“provide enough incentive” for released detainees to appear
in the future, we cannot understand why it would ever refuse
to consider financial circumstances: the amount of bond that
is reasonably likely to secure the appearance of an indigent
person obviously differs from the amount that is reasonably
likely to secure a wealthy person’s appearance. 19 Nor can we
understand why the government would refuse to consider
alternatives to monetary bonds that would also serve the
same interest the bond requirement purportedly advances.
This is especially true in light of the empirically
demonstrated effectiveness of such conditions at meeting the
government’s interest in ensuring future appearances. As the
American Bar Association explains in its amicus brief, the
Intensive Supervision Appearance Program—which relies
on various alternative release conditions—resulted in a 99%
attendance rate at all EOIR hearings and a 95% attendance
rate at final hearings.

Setting a bond amount without considering financial
circumstances or alternative conditions of release
undermines the connection between the bond and the
legitimate purpose of ensuring the non-citizen’s presence at
future hearings. There is simply no way for the government

19
The government’s briefs mischaracterize the relief sought by
Plaintiffs. Plaintiffs are not challenging the amount of their bonds, but
instead contend that they are unconstitutionally detained without
adequate procedures for setting bond unless ability to obtain a bond due
to financial circumstances and the availability of alternative conditions
of release are considered. The parties agree that due process requires only
that “a bond . . . be reasonably calculated to assure an alien’s appearance
at a future removal hearing,” but the government fails to explain how
such a reasonable calculation can be made on a “case-by-case basis” if
financial circumstances and alternative conditions are not considered.
28 HERNANDEZ V. SESSIONS

to know whether a lower bond or an alternative condition
would adequately serve those purposes when it fails to
consider those matters. Therefore, the government’s current
policies fail to provide “adequate procedural protections” to
ensure that detention of the class members is reasonably
related to a legitimate governmental interest.

Our conclusion that due process likely requires
consideration of financial circumstances and alternative
conditions of release is reinforced by cases interpreting the
dictates of due process in the criminal context. These cases
confirm the common-sense proposition that when the
government detains someone based on his or her failure to
satisfy a financial obligation, the government cannot
reasonably determine if the detention is advancing its
purported governmental purpose unless it first considers the
individual’s financial circumstances and alternative ways of
accomplishing its purpose.

In Bearden v. Georgia, 461 U.S. 660 (1983), the
Supreme Court held that it violates due process for a state to
revoke an individual’s probation due to a failure to pay a fine
or restitution without first considering the reasons for the
failure to pay (including the probationer’s financial
circumstances) and “alternatives to imprisonment” that
might serve the state’s “interest in punishment and
deterrence.” Id. at 672. By not considering those factors,
states impermissibly risk imprisoning individuals “simply
because, through no fault of [their] own, [they] cannot pay
the fine.” Id. at 672–73. 20 Such imprisonment would not

20
In Bearden, it was especially clear that the State’s revocation of
probation was not sufficiently tailored to its legitimate interests in light
of the fact that the decision to place the defendant on probation in the
first place “reflect[ed] a determination by the sentencing court that the
 HERNANDEZ V. SESSIONS 29

advance any legitimate governmental interest. See also
Turner v. Rogers, 564 U.S. 431, 447–48 (2011) (noting that
a state must demonstrate that an individual has the ability to
pay child support before imprisoning him for civil contempt
for failure to pay).

We have applied Bearden to hold that district judges
must consider a defendant’s financial circumstances before
applying a Guidelines enhancement based on a failure to pay
outstanding fines and fees in a prior case. See United States
v. Parks, 89 F.3d 570, 572 (9th Cir. 1996). As in Bearden,
we reasoned that consideration of the defendant’s financial
circumstances was necessary to ensure that the increased
sentence served legitimate penological purposes rather than
simply being “due to poverty.” Id. Likewise, in Pugh, the
Fifth Circuit recognized that consideration of financial
circumstances and alternatives to monetary bonds is
necessary in order to set release conditions that advance
legitimate governmental interests. See Pugh, 572 F.2d at
1057.

In this case, the government has no way of determining
whether detention of individuals who do not post a bond in
the assessed amount is sufficiently related to achieving the
government’s purpose, unless it first considers their
“financial resources” and whether “adequate alternative
methods” of satisfying the government’s interests are
available. Cf. Bearden, 461 U.S. at 669, 671. By maintaining

State’s penological interests do not require imprisonment.” Bearden,
461 U.S. at 670. Similarly, in the immigration detention context before
us in this case, an IJ or ICE officer has already determined that the
government’s legitimate interests in promoting safety and ensuring
future appearance do not require detention without bond.
30 HERNANDEZ V. SESSIONS

a process for establishing the amount of a bond that likewise
fails to consider the individual’s financial ability to obtain a
bond in the amount assessed or to consider alternative
conditions of release, the government risks detention that
accomplishes “little more than punishing a person for his
poverty.” Id. 21

In sum, as the district court correctly explained, these
cases “stand for the general proposition that when a person’s
freedom from governmental detention is conditioned on
payment of a monetary sum, courts must consider the
person’s financial situation and alternative conditions of
release when calculating what the person must pay to satisfy
a particular state interest.” Otherwise, the government has no
way of knowing if the detention that results from failing to
post a bond in the required amount is reasonably related to
achieving that interest.

The government claims that cases “involv[ing] criminal
detention” are irrelevant to immigration detention. On the

21
The government’s attempt to distinguish Bearden is unpersuasive.
It argues that immigration detainees are placed into custody “solely due
to their alleged violations of immigration law, and wholly unrelated to
their financial status,” whereas the probationer in Bearden was
“affirmatively punished by incarceration for [his] failure to pay” a fine
or restitution. This argument ignores the fact that Plaintiffs would be
released from custody if their financial status were different—that is, if
they had enough money to post the required bond. As in Bearden, the
government claims that detention in the absence of the monetary
payment serves a particular interest (prevention of flight on the one hand,
punishment on the other) but has failed to consider the factors—financial
circumstance and alternatives to detention—that must be evaluated in
order to determine if detention is sufficiently related to advancing that
interest. It is the failure to consider factors so central to the purported
interest that results in detention without adequate procedural protections
and hence violates due process.
 HERNANDEZ V. SESSIONS 31

contrary, the Supreme Court has recognized that criminal
detention cases provide useful guidance in determining what
process is due non-citizens in immigration detention. See,
e.g., Zadvydas, 533 U.S. at 690–91. Furthermore, in M.L.B.
v. S.L.J., the Supreme Court explicitly rejected a call to limit
the effect of these principles “to cases typed ‘criminal.’”
519 U.S. 102, 127 (1996). Immigration cases, like the
parental status termination cases at issue in M.L.B., are set
“apart from mine run civil actions” and “involve the
awesome authority of the State” to take a “devastatingly
adverse action”—here, the power to remove individuals
from their homes, separate them from their families, and
deport them to countries they may have last seen many years
ago. Compare M.L.B., 519 U.S. at 125, 127–28, with Padilla
v. Kentucky, 559 U.S. 356, 365 (2010) (“We have long
recognized that deportation is a particularly severe ‘penalty’
. . . . Although removal proceedings are civil in nature,
deportation is nevertheless intimately related to the criminal
process.”) (citation omitted).

The appropriateness of the requirement that ICE and IJs
consider financial circumstances and alternative conditions
of release is confirmed by the balance of factors under
Mathews v. Eldridge:

[I]dentification of the specific dictates of due
process generally requires consideration of
three distinct factors: First, the private
interest that will be affected by the official
action; second, the risk of an erroneous
deprivation of such interest through the
procedures used, and the probable value, if
any, of additional or substitute procedural
safeguards; and finally, the Government’s
interest, including the function involved and
32 HERNANDEZ V. SESSIONS

the fiscal and administrative burdens that the
additional or substitute procedural
requirement would entail.

424 U.S. 319, 335 (1976). The government’s refusal to
require consideration of financial circumstances is
impermissible under the Mathews test because the minimal
costs to the government of such a requirement are greatly
outweighed by the likely reduction it will effect in
unnecessary deprivations of individuals’ physical liberty.

As to the first factor, the private interest at issue here is
“fundamental”: freedom from imprisonment is at the “core
of the liberty protected by the Due Process Clause.” Foucha
v. Louisiana, 504 U.S. 71, 80 (1992). That is beyond dispute.

As to the second factor, when the government
determines what bond to set without considering a detainee’s
financial circumstances, or the availability of alternative
conditions of release, there is a significant risk that the
individual will be needlessly deprived of the fundamental
right to liberty. Even though consideration of these matters
does not guarantee that a non-citizen will actually be
released on a bond that he is financially able to obtain once
all flight risk factors are considered, IJs and ICE will
certainly be less likely to impose an excessive bond if they
are mandated to at least consider financial circumstances and
alternative conditions before setting the amount.

As to the third factor, the government has no legitimate
interest in detaining individuals who have been determined
not to be a danger to the community and whose appearance
at future immigration proceedings can be reasonably ensured
by a lesser bond or alternative conditions. See Pugh,
572 F.2d at 1057 (“Since the function of bail is limited, the
fixing of bail for any individual defendant must be based
 HERNANDEZ V. SESSIONS 33

upon standards relevant to the purpose of assuring the
presence of that defendant.”) (quotation marks omitted).
Therefore, administrative cost is the only factor weighing
against requiring consideration of financial circumstances
and potential alternative conditions of release. However, the
requirement imposes almost no such costs. According to the
government, consideration of financial circumstances is
already “implicitly” required (although it is not mentioned
among the Guerra factors), and the IJ Benchbook 22 likewise
suggests that financial circumstances should be considered
as a non-dispositive factor in bond determinations. 23 All that
the preliminary injunction requires of the government is that
it make consideration of financial circumstances and
alternative conditions of release explicitly, rather than
implicitly, required factors. This minimal burden is easily
outweighed by the reduction in the risk of erroneous
deprivation of liberty that would result from the additional
safeguard imposed by the preliminary injunction.

The Mathews balancing thus confirms the principle
found in Bearden and Parks: If the government is setting
monetary bonds to ensure appearance at future proceedings,
there is no legitimate reason for it not to consider the
22
The IJ Benchbook lists ability to pay as a factor to consider in
bond determinations, but this resource is not a binding statement of law,
nor does it purport to require consideration of ability to pay, even if it
allows, or even suggests, consideration of that factor.
23
Without addressing these claims relating to its current procedures,
or providing any substantive explanation, the government asserts
mandatory consideration of financial circumstances would transform
bond hearings into “mini trials” on detainees’ finances. In the absence of
any evidence supporting these hyperbolic claims, we conclude that any
minimal costs that will be imposed on the government by the injunction
are far outweighed by the substantial benefits such consideration would
afford.
34 HERNANDEZ V. SESSIONS

individual’s financial circumstances and alternative
conditions of release. By failing to require such
consideration, the government has created a system of
immigration bond determinations that does not adequately
provide a reasonable connection between detention and
legitimate governmental interests. See Zadvydas, 533 U.S. at
690; Singh, 638 F.3d at 1203. Plaintiffs are therefore likely
to succeed on the merits of their due process claim.

B.

In addition to a likelihood of success on the merits, “[a]
plaintiff seeking a preliminary injunction must establish . . .
that he is likely to suffer irreparable harm in the absence of
preliminary relief.” Winter, 555 U.S. at 20. Here, Plaintiffs
have established a likelihood of irreparable harm by virtue
of the fact that they are likely to be unconstitutionally
detained for an indeterminate period of time.

“It is well established that the deprivation of
constitutional rights ‘unquestionably constitutes irreparable
injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir.
2012) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)).
Thus, it follows inexorably from our conclusion that the
government’s current policies are likely unconstitutional—
and thus that members of the plaintiff class will likely be
deprived of their physical liberty unconstitutionally in the
absence of the injunction—that Plaintiffs have also carried
their burden as to irreparable harm.

The briefs of amici curiae highlight in more concrete
terms the irreparable harms imposed on anyone subject to
immigration detention (or other forms of imprisonment). For
example, the American Bar Association describes evidence
of subpar medical and psychiatric care in ICE detention
facilities, the economic burdens imposed on detainees and
 HERNANDEZ V. SESSIONS 35

their families as a result of detention, and the collateral
harms to children of detainees whose parents are detained.
The University of California, Irvine School of Law’s
Immigrant Rights Clinic relates the story of a detainee who
was forced to miss her murdered mother’s funeral because
she could not afford a $9,000 bond and details the abuse
another detainee suffered at the hands of guards and
detainees, resulting in mental health problems. 24 In the
absence of an injunction, harms such as these will continue
to occur needlessly on a daily basis.

C.

To obtain a preliminary injunction, a plaintiff must also
demonstrate that “the balance of equities tips in his favor.”
Winter, 555 U.S. at 20. The harm to the government in this
case is minimal. The government’s contention is that the
injunction will result in the “diver[sion] [of] the agencies’
time, resources, and personnel from other pressing
immigration adjudication and enforcement priorities.” We
reject the government’s claim and conclude that the district
court did not abuse its discretion in concluding that the
balance of equities favors Plaintiffs.

The district court found that the government did “not
present any contentions or evidence regarding the ‘fiscal and
administrative burdens’ of considering the ability to pay and
alternatives to detention when setting bond.” On appeal, the
government now relies on the declaration of an ICE Deputy
Field Office Director, which avers that the injunction’s
requirements will “be more time consuming and keep
Deportation Officers (DOs) from their other assigned

24
This brief was filed on behalf of “22 law clinics, legal service
providers, community groups and immigrant rights organizations.”
36 HERNANDEZ V. SESSIONS

duties.” The conclusory assertions in this declaration,
however, are neither persuasive nor supported by any actual
evidence.

In fact, contrary to these assertions, the amicus brief of
retired IJs and BIA members explains that the district court’s
injunction imposes only a minor change on the preexisting
bond determination process and “certainly [does] not require
a ‘mini trial’ as the Government’s opening brief suggests.”
The injunction merely requires consideration of financial
circumstances and alternative conditions of release, which is
“not overly complicated or complex.” As Plaintiffs point out,
the government’s position is that ICE and IJs already have
discretion to consider these factors; the injunction only
requires that they consider this particular factor in every case
of non-citizens who have been determined not to present a
danger to the community and not to present so great a flight
risk as to require detention without bond.

We have no doubt that the district court was correct that
any additional administrative costs to the government are far
outweighed by the considerable harm to Plaintiffs’
constitutional rights in the absence of the injunction. The
injunction will likely prevent the unnecessary detention of
non-citizens who the government has determined are neither
dangerous nor enough of a flight risk to require detention
without bond. “Faced with such a conflict between financial
concerns and preventable human suffering, we have little
difficulty concluding that the balance of hardships tips
decidedly in plaintiffs’ favor.” Lopez v. Heckler, 713 F.2d
1432, 1437 (9th Cir. 1983).

The injunction’s requirement that ICE and IJs consider
financial circumstances and alternative conditions of release
along with the factors they already consider imposes a
relatively modest burden on the government and helps
 HERNANDEZ V. SESSIONS 37

reduce “the major hardship posed by needless prolonged
detention,” and so the balance of equities favors Plaintiffs.
Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013)
(Rodriguez II).

D.

When, as here, “the impact of an injunction reaches
beyond the parties, carrying with it a potential for public
consequences, the public interest will be relevant to whether
the district court grants the preliminary injunction.”
Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir.
2009). Plaintiffs must demonstrate that the public interest
favors granting the injunction “in light of [its] likely
consequences,” i.e., “consequences [that are not] too remote,
insubstantial, or speculative and [are] supported by
evidence.” Id. The public interest benefits from an injunction
that ensures that individuals are not deprived of their liberty
and held in immigration detention because of bonds
established by a likely unconstitutional process.

First, and most important, the injunction serves the
interests of the general public by ensuring that the
government’s initial bond determination procedures comply
with the Constitution. “Generally, public interest concerns
are implicated when a constitutional right has been violated,
because all citizens have a stake in upholding the
Constitution.” Preminger v. Principi, 422 F.3d 815, 826 (9th
Cir. 2005).

Second, in addition to the potential hardships facing
Plaintiffs in the absence of the injunction, the court “may
consider . . . the indirect hardship to their friends and family
members.” Golden Gate Rest. Ass’n v. City & Cty. of San
Francisco, 512 F.3d 1112, 1126 (9th Cir. 2008). Without the
changes ordered by the district court, bond will likely be set
38 HERNANDEZ V. SESSIONS

at amounts that are not reasonably related to the
government’s interests, which places financial and
psychological strain on the families of detainees. As the
Immigrant Rights Clinic amicus brief explains, family
members of detainees must sometimes “choose between
scraping money together to pay a bond or paying for
necessities, such as rent, utilities, and food.” Unnecessary
detention places other burdens on families as well, as
illustrated by the case described in the Clinic’s brief in which
a detainee’s children had to receive counseling because of
the trauma of their government-compelled separation from
their father.

Third, the general public’s interest in the efficient
allocation of the government’s fiscal resources favors
granting the injunction. See Golden Gate Rest. Ass’n,
512 F.3d at 1125. The costs to the public of immigration
detention are “staggering”: $158 each day per detainee,
amounting to a total daily cost of $6.5 million. Supervised
release programs cost much less by comparison: between
17 cents and 17 dollars each day per person As the amicus
brief from retired IJs explains, reduced detention costs can
free up resources to more effectively process claims in
Immigration Court. In light of these considerations, the
district court did not err in concluding that the interests of
the general public would be served by granting the
preliminary injunction.

III.

The government also challenges the scope of the
injunction. These challenges fail.

The government contests the requirements in the
injunction that it (1) not conduct future initial bond hearings
according to procedures that will likely result in
 HERNANDEZ V. SESSIONS 39

unconstitutional detention, and (2) provide new bond
hearings to individuals who are currently detained on bonds
that were set pursuant to those procedures. 25 According to
the government, these provisions are “mandatory” rather
than “prohibitory”—that is, they go beyond “maintaining the
status quo” and preventing further constitutional violations,
and hence should not be approved in the absence of a risk of
“extreme or very serious damage.” Marlyn Nutraceuticals,
Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th
Cir. 2009) (quotation marks omitted).

Our approach to preliminary injunctions, with separate
standards for prohibitory and mandatory injunctions, is
controversial. The Sixth Circuit has explicitly rejected a
heightened burden for mandatory injunctions, noting, “[w]e
[ ] see little consequential importance to the concept of the
status quo, and conclude that the distinction between
mandatory and prohibitory injunctive relief is not
meaningful. Accordingly, we . . . hold that the traditional
preliminary injunctive standard—the balancing of
equities—applies to motions for mandatory preliminary
injunctive relief as well as motions for prohibitory
preliminary injunctive relief.” United Food & Commercial
Workers Union, Local 1099 v. Sw. Ohio Reg’l Transit Auth.,
163 F.3d 341, 348 (6th Cir. 1998). The Seventh Circuit
likewise holds that “[w]hether and in what sense the grant of
relief would change or preserve some previous state of
affairs is neither here nor there. To worry these questions is

25
The partial dissent raises additional concerns about the deadlines
set in the district court’s order. The government did not challenge the
deadlines on appeal, and so they are not before us. If the government
believes the deadlines are unreasonable, however, it may ask the district
court to reconsider them on remand and we expect that the district court
will consider its request in all good faith.
40 HERNANDEZ V. SESSIONS

merely to fuzz up the legal standard.” Chicago United
Indus., Ltd. v. City of Chicago, 445 F.3d 940, 944 (7th Cir.
2006) (Posner, J.).

Scholars have also criticized our approach. One critique
concludes that “a heightened preliminary injunction
standard in cases involving mandatory orders that upset the
status quo has little to recommend it,” that “[h]istory points
decidedly against this approach,” and that “[c]ontinued
retention of the hollow inquiry into the nature of an
injunction or its effect on the status quo will give rise to
additional costs without producing any offsetting benefits.”
Thomas R. Lee, Preliminary Injunctions and the Status Quo,
58 Wash. & Lee L. Rev. 109, 166 (2001). More than half a
century ago, the Harvard Law Review criticized the
distinction, arguing that “the existence of a formula that is
susceptible to either a verbal or a substantive interpretation,
and that is not always indicative of the severity of the burden
a decree is likely to place upon the defendant and court,
should not be accepted without question. It is these burdens,
rather than any talismanic phraseology, that should
determine the issuance or denial of an injunction.”
Developments in the Law—Injunctions—Types of
Injunctions, 78 Harv. L. Rev. 1055, 1063 (1965).

Even other circuits that apply a heightened standard to
mandatory injunctions have questioned whether the line
between mandatory and prohibitory injunctions is
meaningful. The Second Circuit has noted that “[t]he
distinction between mandatory and prohibitory injunctions
is not without ambiguities or critics,” and that it has “led to
distinctions that are more semantic than substantive.” Tom
Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 34
(2d Cir. 1995) (quotation marks omitted). A majority of the
Tenth Circuit has likewise recognized that “determining
 HERNANDEZ V. SESSIONS 41

whether an injunction is mandatory as opposed to
prohibitory can be vexing,” and that cases can involve
“important competing status quos.” O Centro Espirita
Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973,
1006 (10th Cir. 2004) (en banc) (Seymour, J., concurring in
part and dissenting in part). 26

We are nevertheless bound by circuit precedent to
discern the line between mandatory and prohibitory
injunctions as best we can. We do so recognizing the
complexities of the problem, the lack of clear authority as to
how the distinction is implemented, and the inherent
contradictions underlying the somewhat artificial legal
construct that cause so many to question the inquiry we now
undertake. Given all that, we find the answer to the
challenges raised by the government here remarkably
simple.

A.

As to the government’s first challenge—its objection to
the requirement that it conduct future initial bond hearings
in accordance with constitutional processes—the injunction
is prohibitory: it prohibits the government from conducting
new bond hearings under procedures that will likely result in
unconstitutional detentions. This part of the injunction
prevents future constitutional violations, a classic form of
prohibitory injunction. See Arizona Dream Act Coalition v.
Brewer, 757 F.3d 1053, 1060–61 (9th Cir. 2014) (holding
that an injunction against enforcement of a likely

26
Judge Seymour’s opinion is not designated as the opinion of the
court, but it was joined in relevant part by eight of the thirteen judges.
Six of those judges would have rejected the heightened standard for
mandatory injunctions entirely.
42 HERNANDEZ V. SESSIONS

unconstitutional state policy was prohibitory rather than
mandatory); Bay Area Addiction Research and Treatment,
Inc. v. City of Antioch, 179 F.3d 725, 728, 732 n.13 (9th Cir.
1999) (holding that an injunction against enforcement of a
local ordinance that likely violated federal law was
prohibitory rather than mandatory); see also Melendres, 695
F.3d at 994–96, 1000, 1002 (affirming a preliminary
injunction against an allegedly longstanding practice of
detaining individuals based solely on suspicions about
immigration status); McCormack v. Hiedeman, 694 F.3d
1004, 1009, 1020, 1022 (9th Cir. 2012) (affirming a
preliminary injunction barring enforcement against the
plaintiff of a longstanding Idaho anti-abortion criminal
statute); 42 Am. Jur. 2d Injunctions § 5 (2017) (“An
injunction is considered prohibitory when the thing
complained of results from present and continuing
affirmative acts and the injunction merely orders the
defendant to refrain from doing those acts.”).

B.

The requirement that the government conduct new bond
hearings for individuals detained on account of bonds set
pursuant to the enjoined procedure (the procedure which
fails to consider financial circumstances or alternative
conditions of release), may, however, under certain plausible
interpretations be deemed mandatory. On the one hand, it
directs the government to affirmatively hold new hearings it
would not otherwise have held. On the other hand, it can also
be understood as merely prohibiting the government from
continuing to detain individuals subject to bond amounts set
through unconstitutional procedures. Because the nature of
this provision is subject to greater dispute than the first, we
assume without deciding that the requirement is mandatory.
 HERNANDEZ V. SESSIONS 43

Mandatory injunctions, while subject to a higher
standard than prohibitory injunctions, are permissible when
“extreme or very serious damage will result” that is not
“capable of compensation in damages,” and the merits of the
case are not “doubtful.” Marlyn Nutraceuticals, 571 F.3d at
879 (quotation marks omitted). Those requirements are met
here. First unlawful detention certainly constitutes “extreme
or very serious” damage, and that damage is not
compensable in damages. Second, the merits of this case are
not “doubtful” in our opinion—Plaintiffs’ likely success
follows directly from the Supreme Court’s dictate that
immigration detention must “bear[] a reasonable relation to
[its] purpose.” Zadvydas, 533 U.S. at 690. That connection
between detention for failure to post a bond and legitimate
governmental purposes can be made only if there is first a
consideration of financial circumstances and alternative
ways of serving that purpose. See Bearden, 461 U.S. at 672–
73.

We also note that the injunction in this case is not the
“unprecedented relief” alleged by the government. This is
not the first time we have approved of preliminary
injunctions that require the government to conduct bond
hearings in the immigration context. In fact, we have done
so at least three times before. See Preap v. Johnson, 831 F.3d
1193, 1198, 1207 (9th Cir. 2016); 27 Rodriguez II, 715 F.3d
at 1130–31; 28 Diouf v. Napolitano, 634 F.3d 1081, 1083–84

27
The government has petitioned for a writ of certiorari in Preap,
but the petition relates only to the merits of the claim, not the mandatory
nature of the injunction. See generally Petition for a Writ of Certiorari,
Kelly v. Preap, No. 16-1363 (U.S. May 11, 2017).
28
The government did not seek certiorari in Rodriguez II. The
Supreme Court’s pending review of Rodriguez III does not relate to the
validity or scope of the preliminary injunction.
44 HERNANDEZ V. SESSIONS

(9th Cir. 2011). In none of these cases did the government
challenge the preliminary injunction on the basis that it was
mandatory rather than prohibitory. Although, for that reason,
these cases do not necessarily control the result here, they at
the least inform our analysis by demonstrating that such
preliminary injunctions are standard in cases alleging
unconstitutional detention.

The rules governing the relief that may be granted by
preliminary injunction are not “hard and fast rules, to be
rigidly applied to every case regardless of its peculiar facts,”
because “[t]he infinite variety of situations in which a court
of equity may be called upon for interlocutory injunctive
relief requires that the court have considerable discretion in
fashioning such relief.” Tanner Motor Livery, Ltd. v. Avis,
Inc., 316 F.2d 804, 809 (9th Cir. 1963). Mandatory
injunctions are most likely to be appropriate when “the status
quo . . . is exactly what will inflict the irreparable injury
upon complainant.” Friends for All Children, Inc. v.
Lockheed Aircraft Corp., 746 F.2d 816, 830 n.21 (D.C. Cir.
1984). This is just such a case. The status quo, in which
Plaintiffs had their bonds determined under the old
procedure, is what is inflicting the irreparable injury—
continued detention subject to those bonds, or perhaps more
important, to a constitutionally invalid process. We further
note that the remedy imposed by the injunction, even if
mandatory in nature, is a mild one—it does not require the
government to release any detainees; it merely directs it to
conduct a relatively small number of new hearings in which
it must consider constitutionally required factors while
setting the bond amounts. We conclude, therefore, that the
district court did not abuse its discretion in granting the
portion of the injunction requiring new bond hearings for
 HERNANDEZ V. SESSIONS 45

those presently detained as a result of the use of
unconstitutional procedures. 29

IV.

Plaintiffs are likely to succeed on their challenge under
the Due Process Clause to the government’s policy of
allowing ICE and IJs to set immigration bond amounts
without considering the detainees’ financial circumstances
or alternative conditions of release. The government has
failed to offer any convincing reason why these factors
should not be considered in bond hearings for non-citizens
who are determined not to be a danger to the community and
not to be so great a flight risk as to require detention without
bond. The irreparable harm to Plaintiffs of detention
pursuant to bond amounts determined through a likely
unconstitutional process far outweighs the minimal

29
The government also challenges the requirement that it meet and
confer with Plaintiffs to develop guidelines for future immigration
hearings. According to the government, this requirement gives
“Plaintiffs’ counsel veto authority over the terms and guidelines to be
used in those bond proceedings, [which] violates Congress’s delegation
of such authority to the Executive.” To the contrary, the district court
retains authority to resolve any disputes between the parties regarding
implementation of the injunction. The requirement that the parties meet
and confer is merely an administrative mechanism to reduce unnecessary
burdens on the district court’s resources. It is an entirely ordinary
exercise of the district court’s authority to manage cases and to
encourage cooperation before parties resort to asking the court to resolve
a dispute. See, e.g., C.D. Cal. L.R. 7-3 (requiring parties to confer prior
to filing most motions and to file the motion only if the parties are
“unable to reach a resolution which eliminates the necessity for a
hearing”).
46 HERNANDEZ V. SESSIONS

administrative burdens to the government of complying with
the injunction while this case proceeds.

The district court’s order granting the preliminary
injunction is AFFIRMED.

FERNANDEZ, Circuit Judge, concurring in part and
dissenting in part:

I agree that the district court did not abuse its discretion
when it decided to issue a preliminary injunction requiring
the consideration of “financial ability” and “alternative
conditions of supervision” 1 in making determinations
regarding the release of aliens who have been detained
pursuant to 8 U.S.C. § 1226(a). However, I do not agree
with the breadth of the injunctive order that was issued.
Thus, I respectfully concur in part and dissent in part.

A. Concurrence

While I do generally concur in the merits decision itself
(including parts I and II and the portion of the opinion which
precedes them), I do so with a caveat and with some
exceptions as to language that I consider unnecessary,
overbroad, or otherwise problematic.

1. Caveat—Throughout the opinion, the language used
might be taken to declare that there must be two separate
(non-overlapping) steps that a hearing officer must take in

1
To avoid referring to both financial ability and alternative
conditions each time, I will hereafter just use the former to include both,
unless otherwise stated.
 HERNANDEZ V. SESSIONS 47

making a bond determination: first, the officer must
determine if the alien can be released at all; 2 and second, if
the alien meets the first step, the officer’s remaining
determination must be made based upon the nature of the
alien’s financial ability only. To the extent that the opinion
could be read that way, it should not be. Rather, a myriad of
factors go into deciding the release question, 3 and all we say
here is that financial ability must be part of that mix. As I
see it, the majority opinion merely requires that hearing
officers must consider financial ability along with the rest of
the farrago of factors that they consider.

2. Exceptions

a. I do not join the discussion in the fourth paragraph of
part II.A. For example, while there is a serious danger in a
failure to consider financial ability, I do not agree that
reasonable decisions are unlikely without it. Moreover, the
effectiveness of various approaches is best decided at trial
rather than by accepting claims in an amicus brief.

b. I do not join in the discussion in the sixth through
tenth paragraphs of part II.A. because I am not convinced
that cases prohibiting the criminal punishment of persons
who cannot afford to pay judgments of one kind or another
are significantly similar to the case at hand.

c. I do not fully join the discussion in the fifteenth
paragraph of part II.A. because I am not satisfied that
consideration of potential alternative conditions of release
imposes “almost no [administrative] costs” or that the

2
See for example notes 3 and 18 of the majority opinion.

3
See, e.g., In re Guerra, 24 I. & N. Dec. 37, 40 (B.I.A. 2006).
48 HERNANDEZ V. SESSIONS

preliminary injunction, as written, will impose a “minimal
burden” on the government.

d. I do not join in the third paragraph of part II.B., or in
the conclusion therein.

e. I do not join the fourth and fifth paragraphs of part
II.C. to the extent that they signal an approval of the full
scope of the injunctive order which we are reviewing.

f. I do not join the third and fourth paragraphs of part
II.D., which I see as unnecessary and problematic. For
example, I do not think we should be deciding public policy
issues based upon how we think the government should
spend its money in an area as fraught with controversy as
immigration.

B. Dissent: Scope of the Preliminary Injunction

The preliminary injunction issued here has both
prohibitory and mandatory aspects. 4 In considering the

4
As relevant to this opinion, the order reads as follows:

“I. Procedures for ICE Custody Determinations,
IJ Custody Redeterminations, and BIA Review

1. For all noncitizens detained under 8 U.S.C.
§ 1226(a) in the Central District of California (the
“District”) after the date of this Order, U.S.
Immigration and Customs Enforcement (“ICE”) and
the Executive Office of Immigration Review
(“EOIR”), when setting, re-determining, and/or
reviewing the terms of any person’s release, must
(a) consider the person’s financial ability to pay a
bond; (b) not set bond at a greater amount than that
needed to ensure the person’s appearance; and
 HERNANDEZ V. SESSIONS 49

(c) consider whether the person may be released on
alternative conditions of supervision, alone or in
combination with a lower bond amount, that are
sufficient to mitigate flight risk.

2. Within seven days of this Order, Defendants
will meet and confer with Plaintiffs’ counsel (“Class
Counsel”), and continue to confer thereafter with
Class Counsel in good faith, to develop and agree to
the following:

a. guidelines for ICE and the Immigration
Judges (“IJs”) to apply in determining an
individual’s financial ability to pay a bond;

b. instructions to all ICE officers who
conduct initial custody determinations under
Section 1226(a) and to all IJs in the District that
inform them of the requirements of this Order
(including the guidelines developed in Paragraph
2(a) above); and

c. a notice for all class members currently
detained in the District summarizing the
requirements of this Order in connection with
their upcoming custody redetermination hearings
pursuant to this Order.

3. As soon as practicable, but in any event no later
than thirty days after this order, Defendants shall:

a. issue the instructions developed in
Paragraph 2(b) above (including the guidelines
developed in Paragraph 2(a) above) to all ICE
officers who conduct initial custody
determinations under Section 1226(a) and to all
IJs in the District; and
50 HERNANDEZ V. SESSIONS

propriety of the injunction, we must bear in mind the fact
that mandatory terms 5 present more difficulties than
prohibitive terms, 6 and it is the former that I disagree with in
this case.

b. send the notice developed in Paragraph
2(c) above to all class members currently detained
in the District.

4. Defendants will notify Class Counsel of the
date and location of each new custody redetermination
hearing set pursuant to this Order at least seven days
in advance of the hearing.

5. Within 45 days of this order, the EOIR will
provide each class member currently detained in the
District with a new custody redetermination hearing
where the IJ decides whether the class member should
be released on his or her own recognizance or released
on a money bond and/or other conditions of
supervision. When setting a class member’s terms of
release, the IJ must comply with Paragraph 1 of this
Order. Nothing in this Order prevents a class member
from seeking a continuance to prepare for his or her
hearing.

6. Where a class member or the government
appeals the IJ’s custody redetermination to the Board
of Immigration Appeals (“BIA”), the BIA will
determine whether the IJ has properly performed the
analysis set forth in Paragraph 1, which is required by
8 U.S.C. § 1226(a).”

5
See Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co.,
571 F.3d 873, 879 (9th Cir. 2009) (“A mandatory injunction orders a
responsible party to take action.” (internal quotation marks omitted)).
6
See id. at 878 (“A prohibitory injunction prohibits a party from
taking action . . . .”).
 HERNANDEZ V. SESSIONS 51

Even without regard to the form and despite the rulings
of the district court and the thrust of the majority opinion,
“[a] preliminary injunction, of course, is not a preliminary
adjudication on the merits but rather a device for preserving
the status quo and preventing the irreparable loss of rights
before judgment.” Sierra On-Line, Inc. v. Phoenix Software,
Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). A mandatory
injunction is much more likely to trench on that principle
than is a prohibitory injunction. For that reason, we have
stated that:

A mandatory injunction goes well beyond
simply maintaining the status quo [p]endente
lite [and] is particularly disfavored. In
general, mandatory injunctions are not
granted unless extreme or very serious
damage will result and are not issued in
doubtful cases or where the injury
complained of is capable of compensation in
damages.

Marlyn Nutraceuticals, 571 F.3d at 879 (citations and
internal quotation marks omitted); see also Garcia v.
Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (en banc).
The majority bridles at our wisely adopted distinction, but
reluctantly agrees that it must be followed. Still, I fear that
its distaste for the distinction, together with its declaration
that it is “unlikely” that the outstanding bonds are
reasonable, has helped to lead it astray. However, when the
above standards are applied, I cannot agree with the district
court order which proceeds as if the merits have been finely
adjudicated and which immediately and inappropriately
imposes mandatory duties upon the government
accordingly.
52 HERNANDEZ V. SESSIONS

More specifically, I disagree with the district court’s
order in the ways set forth below.

1. As to paragraph I.1. 7 of the order, while I agree that
the government must consider financial ability in future
release hearings, 8 I do not agree that it must forthwith
conduct new bond hearings for all those who are currently
detained, regardless of the nature of the records regarding
their prior hearings. To the extent this paragraph
contemplates that must be done, I do not agree.

2. I do not agree with the scope of paragraphs I.2. and
I.3. of the order. Again, I do agree that financial ability must
be considered at future release hearings, but I do not agree
that the district court can, at this point, order the government
to consult with class counsel and “develop and agree” to
guidelines. While it is suggested that this is a mere
conferencing and consulting direction, it plainly is not just
that—it directs the government to “agree” with class
counsel. As I see it, at this point, the government must
consider financial ability. If detailed procedures beyond
those that already exist (or amendments to current
procedures) are needed for that purpose, the government’s
determination and adoption of those procedures should
basically be through the usual governmental processes 9
rather than in a forced march and a required agreement with
class counsel. I note that all of that is to take place within
30 days of the order. That by itself is unreasonable.

7
All references to paragraphs in the order are to those as set forth in
note 4, supra.
8
See 8 U.S.C. § 1226(a).

9
See Bresgal v. Brock, 843 F.2d 1163, 1171 (9th Cir. 1987).
 HERNANDEZ V. SESSIONS 53

Incidentally, I would see no real difficulty if the government
were merely required to distribute the preliminary injunction
order to the relevant parties (officers and class members)
once a proper order is issued. These paragraphs should be
set aside or rewritten accordingly.

3. I do not agree with paragraph I.5., which requires that
hearings for all current detainees be conducted within
45 days of the order. Specifically I do not agree with the
requirement that hearings be held for all current detainees,
and the timing exacerbates the problem. Interestingly
enough, the government is required to meet, confer, and
agree with class counsel and give necessary notices within
30 days. It is then to conduct hearings for all of those
currently detained within 15 days thereafter, or, of course,
agree earlier and gain some extra hearing time. I would also
strike this unreasonable paragraph.

In short, at this preliminary injunction stage of the
proceeding, I agree that the government must consider
financial ability in future hearings, a requirement that I find
to be essentially prohibitory. I do not agree with the other
essentially mandatory aspects of the order regarding
development and agreement on guidelines, or the holding of
hearings for all current detainees forthwith and within the
strict deadlines set out by the district court.

Thus, I respectfully concur with the majority opinion in
part and dissent in part.