Published : Wednesday, October 31, 2018 | 4:13 PM
A panel at the Ninth Circuit Court of Appeals in Pasadena hinted Monday it will send a long-running class action over prolonged detention of immigrants back to the Southern California trial court hearing the case, and preserve a court order requiring bond hearings while the case is reviewed, according to Courthouse News Service.
The Ninth Circuit panel is again considering the case, Jennings v. Rodriguez, after the U.S. Supreme Court in February ruled that the lower court had “misapplied the canon of constitutional avoidance” in finding that immigrants should generally get bond hearings after six months in detention, and then every six months if they continue to be held.
The ruling found that federal regulations governing these detentions don’t give detained immigrants the right to periodic bond hearings. The Supreme Court’s majority remanded the case to the Ninth Circuit for further consideration.
On Monday, U.S. Circuit Judge Kim Wardlaw suggested the Ninth Circuit also remand the case to Senior U.S. District Judge Terry Hatter Jr., CNS said.
Because the Supreme Court ruled constitutional avoidance doesn’t apply to the case, and because no court has addressed the case’s constitutional questions in the eight years since it was filed, Wardlaw reasoned Hatter must do so now, the CNS report said.
“The Supreme Court…didn’t reach the constitutional decision on the rationale, which should be decided by the lower court, meaning us, in the first instance,” CNS quoted Wardlaw as telling Justice Department attorney Sarah Wilson Monday. “Why doesn’t that reasoning apply to us, too? Why shouldn’t we just send this back?”
The lead plaintiff in the case, Alejandro Rodriguez, first sued over the right to a bond hearing in 2010. A legal permanent resident of the United States since he was an infant, Rodriguez was ordered removed from the United States after a 2003 drug conviction and detained for more than three years.
Rodriguez and the class claimed prolonged detention without a bond hearing violates the Due Process Clause of the Constitution. Hatter agreed and issued a class-wide injunction in September 2012 for class members detained in the Central District of California.