Esteban Aleman Gonzalez v. William Barr

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ESTEBAN ALEMAN GONZALEZ; No. 18-16465 EDUARDO GUTIERREZ SANCHEZ, Plaintiffs-Appellees, D.C. No. 3:18-cv-01869- v. JSC WILLIAM P. BARR, Attorney General; CHAD WOLF, Acting Secretary, OPINION Department of Homeland Security; JAMES MCHENRY, Director, Executive Office for Immigration Review, Department of Justice; CHRISTOPHER A. SANTORO, Acting Chief Immigration Judge, Executive Office for Immigration Review, Department of Justice; DAVID W. JENNINGS, Field Office Director for the San Francisco Field Office of U.S. Immigration and Customs Enforcement, Department of Homeland Security; DAVID O. LIVINGSTON, Sheriff, Contra Costa County; KRISTI BUTTERFIELD, Facility Commander, West County 2 ALEMAN GONZALEZ V. BARR Detention Facility, Contra Costa County, * Defendants-Appellants. Appeal from the United States District Court for the Northern District of California Jacqueline Scott Corley, Magistrate Judge, Presiding Argued and Submitted November 13, 2019 Pasadena, California Filed April 7, 2020 Before: FERDINAND F. FERNANDEZ, MILAN D. SMITH, JR., and ERIC D. MILLER, Circuit Judges. Opinion by Judge Milan D. Smith, Jr.; Dissent by Judge Fernandez * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Chad Wolf is automatically substituted as the Acting Secretary of the U.S. Department of Homeland Security and Christopher A. Santoro is automatically substituted as the Acting Chief Immigration Judge of the Executive Office for Immigration Review. ALEMAN GONZALEZ V. BARR 3 SUMMARY ** Immigration In an action where Plaintiffs—who represent a certified class of aliens who are subject to final orders of removal and are detained pursuant to 8 U.S.C. § 1231(a)(6) within the Ninth Circuit—challenged their prolonged detention without an individualized bond hearing, the panel affirmed the district court’s preliminary injunction requiring the Government to provide each class member detained for six months or longer with a bond hearing before an immigration judge where the burden is on the Government to justify continued detention. Class members are detained under 8 U.S.C. § 1231(a)(6), which authorizes the Government to detain aliens subject to final orders of removal, or reinstated final orders of removal. The class includes only § 1231(a)(6) detainees who have “live claims” of defense against removal before an IJ, the Board of Immigration Appeals, or a circuit court of appeals, such as withholding-only claims, and the class excludes aliens whose release or removal is imminent, as well as aliens who are members of certified classes in other litigations pending in the Ninth Circuit. In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court applied the canon of constitutional avoidance to § 1231(a)(6) and held that six months was a presumptively reasonable length of detention and that, after that period, once an alien provides good reason to believe there is no ** 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 ALEMAN GONZALEZ V. BARR significant likelihood of removal in the reasonably foreseeable future, the Government must provide evidence to rebut that showing. In Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) (Diouf II), ...

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