The Aleman Gonzalez Preliminary Injunction Remains Active in the Ninth Circuit and Prolonged Detention Hearings Must Still be Provided to Class Members

Following the Supreme Court’s decision in Johnson v. Guzman Chavez, the Aleman Gonzalez litigation team received inquiries from practitioners as to the status of the preliminary injunction ordered by the court on June 5, 2018, and later clarified on July 20, 2018. The Aleman injunction remains intact and is the law throughout the Ninth Circuit. After 180 days in custody, the government must still provide an individualized bond hearing to noncitizens who are subject to final administrative orders of removal, are held in detention under INA § 241(a)(6), and who have live claims pending before an administrative or judicial adjudicative body. Noncitizens who fit that criteria are entitled to release from custody unless the government establishes, by clear and convincing evidence, that they are a flight risk or a danger to the community.

Determining whether someone is a class member can often be tricky, and the class is not limited to individuals in withholding-only proceedings. Below are examples of individuals who fall within the class:

1. Reasonable Fear and Withholding-Only Proceedings, Including Judicial Review
   • Those in pending “withholding-only” proceedings before the IJ or the Board of Immigration Appeals (BIA) following the issuance of a reinstated removal order or an administrative removal under 8 U.S.C. § 1228(b), INA § 238(b).
     • Those with a pending petition for review seeking judicial review of the BIA’s denial of withholding of removal or protection under the Convention Against Torture following the “withholding-only” proceedings. The government’s position is that these individuals must have a stay of removal in place to be class members. The government takes the position that individuals with pending petitions for review and pending motions to reopen who do not have a stay of removal in place will not be provided bond hearings under Aleman because their removal is “imminent,” and therefore no bond hearing is required pursuant to Diouf II, 634 F.3d at 1092 n.13. Attorneys representing such individuals will need to weigh the potential benefits of getting a bond hearing by arguing that their client’s removal is not imminent against the risk that pushing for a bond hearing may cause ICE to move forward with deportation more quickly than otherwise.
   • Those in pending reasonable fear proceedings before the Asylum Office or the IJ.
     • Those with a pending petition for review seeking judicial review of an IJ’s negative reasonable fear determination. The government’s position is that these individuals must have a stay of removal in place to be class members.
2. Motions to Reopen, Including Judicial Review
   • Those with a final order of removal pending administrative adjudication of a motion to reopen, whether before the IJ or the BIA, and those petitioning for review of a denied motion to reopen. The government’s position is that these individuals must have a stay of removal in place to be class members.
3. Other Cases on Judicial Review
   • Those with a pending petition for review seeking judicial review of a reinstated removal order. The government’s position is that these individuals must have a stay of removal in place to be class members.

The Aleman Gonzalez litigation team encourages you to reach out to our office if you are unsure as to whether an individual falls within the class definition.

Finally, if you find that an Immigration Judge or the Department of Homeland Security argues or concludes that a class member (or someone whom you believe is a class member) is not entitled to a prolonged detention hearing under the Aleman injunction, please contact our office. We are very interested to learn about your experiences in the various immigration courts throughout the Ninth Circuit, as that information will enable us to determine how best to ensure that class members’ rights under the injunction are satisfied. Any intel would be extremely helpful, especially as the detention numbers start to rise again.