PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-1828

MARVIN DUBON MIRANDA; AJIBADE THOMPSON ADEGOKE; JOSE DE LA CRUZ ESPINOZA,

Plaintiffs – Appellees,

v.

MERRICK B. GARLAND, Attorney General; ALEJANDRO N. MAYORKAS, Secretary; MATTHEW T. ALBENCE, Deputy Director and Senior Official Performing the Duties of the Director; DAVID L. NEAL, Director; JANEAN OHIN, Acting Director; WILLIAM DELAUTER, Corrections Bureau Chief; JACK KAVANAGH, Director; DONNA BOUNDS, Warden,

Defendants – Appellants.

---------------------------------------------

CONSTITUTIONAL ACCOUNTABILITY CENTER; LEGAL AID JUSTICE CENTER; THE ROUNDTABLE OF FORMER IMMIGRATION JUDGES; AMERICAN IMMIGRATION LAWYERS ASSOCIATION-DC; AYUDA, INC.; THIRTY SOCIAL SCIENCE SCHOLARS AND RESEARCHERS

Amici Supporting Appellees.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, Senior District Judge. (1:20-cv-01110-CCB)

Argued: October 27, 2021 Decided: May 12, 2022 Before RICHARDSON and QUATTLEBAUM, Circuit Judges, and Michael F. URBANSKI, Chief United States District Judge for the Western District of Virginia, sitting by designation.

Vacated and remanded by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Richardson concurred in part and dissented in part, and Judge Urbanski concurred in part and dissented in part.

ARGUED: Courtney Elizabeth Moran, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Carmen Gloria Iguina Gonzalez, AMERICAN CIVIL LIBERTIES UNION, Washington, D.C., for Appellees. ON BRIEF: Jeffrey Bossert Clark, Acting Assistant Attorney General, William C. Peachey, Director, Samuel P. Go, Assistant Director, Susan M. Imerman, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Nicholas T. Steiner, Sonia Kumar, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND, Baltimore, Maryland; Michael K.T. Tan, ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT, New York, New York; Jenny Kim, Melody Vidmar, Adina Appelbaum, Claudia Cubas, CAPITAL AREA IMMIGRANTS’ RIGHTS COALITION, Washington, D.C.; Deborah K. Marcuse, Clare J. Horan, Austin L. Webbert, Whittney L. Barth, Lucy Zhou, Baltimore, Maryland, Saba Bireda, SANFORD HEISLER SHARP, LLP, Washington, D.C., for Appellees. Elizabeth B. Wydra, Brianne J. Gorod, Brian R. Frazelle, Dayna J. Zolle, CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., for Amicus Constitutional Accountability Center. Andrew J. Ewalt, Amna Arshad, Justin C. Simeone, Andrew T. Bulovsky, Washington, D.C., Hannah Khalifeh, FRESHFIELDS BRUCKHAUS DERINGER US LLP, New York, New York; Simon Sandoval-Moshenberg, Rebecca Wolozin, Kristin Donovan, LEGAL AID JUSTICE CENTER, Falls Church, Virginia, for Amicus Legal Aid Justice Center. Madeline J. Cohen, Theodore A. Howard, WILEY REIN LLP, Washington, D.C., for Amicus The Roundtable of Former Immigration Judges. Rene Kathawala, ORRICK, HERRINGTON & SUTCLIFFE LLP, New York, New York, for Amici Thirty Social Science Scholars and Researchers. Sam Bragg, ALSTON & BIRD LLP, Dallas, Texas, for Amici The Washington D.C. Chapter of the American Immigration Lawyers Association and Ayuda.

2 QUATTLEBAUM, Circuit Judge:

(a) permits the Attorney General to detain aliens 1 pending their

removal hearings. And the Attorney General has adopted procedures for making that

discretionary decision. Under those procedures, an alien is given notice and three

opportunities to seek release by showing they are neither a flight risk nor a danger to the

community.

A district court determined that a class of aliens had a likelihood of establishing that

those procedures violated the Due Process Clause of the Fifth Amendment of the United

States Constitution. That court then issued a preliminary injunction ordering, on a class-

wide basis, that to continue detaining an alien under § 1226(a), the government must prove

by clear and convincing evidence that an alien is either a flight risk or a danger to the

community. The district court also required immigration judges, again on a class-wide

basis, to consider an alien’s ability to pay any bond imposed and consider alternatives to

detention.

However, under

(f)(1), the district court lacked jurisdiction to issue

class-wide injunctive relief that enjoined or restrained the process used to conduct

§ 1226(a) bond hearings. As for the individual relief issued by the district court, the

detention procedures adopted for § 1226(a) bond hearings provide sufficient process to

1 We realize that the use of the term “alien” has been the subject of some debate. See e.g., Martinez Rivera v. U.S. Att’y Gen., No. 20-13201,

, at *7 (11th Cir. July 8, 2021). We use the term because Congress used it in the text of the applicable statutes, and the same term is used in the applicable regulations. Our use of the term “alien” is not intended to express any opinion, pejorative or otherwise, about the plaintiffs in this action or others challenging their detention under our immigration laws. 3 satisfy constitutional requirements. For that reason, the aliens are unable to establish a

likelihood of success on their due process claims. Nor have they shown that they are likely

to suffer irreparable harm in the absence of preliminary relief, that the balance of equities

tips in their favor or that an injunction is in the public interest. Therefore, we vacate the

district court’s preliminary injunction order.

I.

A.

The Immigration and Nationality Act permits detention of aliens pending the

outcome of removal proceedings.

; see also Jennings v. Rodriguez,

(2018). Separate provisions of § 1226 provide the government with authority

to detain aliens. “Section 1226(a) sets out the default rule: The Attorney General may issue

a warrant for the arrest and detention of an alien ‘pending a decision on whether the alien

is to be removed from the United States.’” Jennings,

(citation omitted).

This section also gives the Attorney General discretion to release an alien from custody on

either a monetary bond or conditional parole.

“Section 1226(c), however, carves out a

statutory category of aliens who may not be released under 1226(a).”

(emphasis in

original). “Under § 1226(c), the ‘Attorney General shall take into custody any alien’ who

falls into one of several enumerated categories involving criminal offenses and terrorist

activities.” Id. (citation omitted). Here, the challenge on appeal involves detention

procedures under § 1226(a).

4 Even though the Attorney General may detain an alien during removal proceedings,

the Act and the regulations adopted to implement its authority afford aliens three

opportunities to seek release from detention. The first opportunity is with an immigration

officer. Id. § 1225(a). An immigration officer is authorized to release the alien if the officer

is satisfied that the alien is not a danger to the community or a flight risk.

(c)(8). If the immigration officer decides to release an alien, the officer may set a

bond or place conditions on the alien’s release.

If an immigration officer denies bond,

sets bond at an amount the alien believes is too high or sets alternative conditions to bond

the alien contends are unreasonable, an alien may appeal the officer’s bond determination

to an immigration judge, giving the alien a second opportunity at release. See

(d)(1), 1003.19(a), 1236.1(d)(1). A third opportunity comes if an alien is not

satisfied with the immigration judge’s decision. In that situation, an alien may appeal to

the Board of Immigration Appeals for another review.

(d)(3), 1003.19(f),

1236.1(d)(3). At each step in this process, the government requires the alien to prove that

he or she is not a danger to the community or a flight risk.

(c)(8);

(c)(8); In re Guerra,

(BIA 2006).

B.

Marvin Dubon Miranda, Aijbade Thompson Adegoke and Jose de la Cruz Espinoza

challenge the detention procedures under § 1226(a) outlined above. Miranda, a citizen of

El Salvador, entered the United States illegally in 2009 and has been here since then. He

was convicted of second-degree assault in 2012 and of driving under the influence in 2017.

After a second driving under the influence conviction, the government detained Miranda

5 and commenced removal proceedings. Miranda requested a bond hearing where he was

represented by counsel and presented letters in support of release from his family members,

friends, coworkers and partner. But the immigration judge denied his bond request,

concluding Miranda had not met his burden of showing that he was not a danger to his

community. In denying bond, the judge relied on Miranda’s prior convictions for driving

under the influence and for second-degree assault.

Adegoke, a citizen of Nigeria, came to the United States in 2017 on a B2 Visa. After

overstaying his visa, Adegoke was charged with theft at a grocery store. The state officials

later dropped the charge but detained Adegoke until immigration officials could take

custody of him. After the immigration officials refused Adegoke bond, he requested that

an immigration judge review his bond denial. The immigration judge set bond at $15,000,

but Adegoke claimed he could not afford to pay that amount.

Espinoza, a citizen of Mexico, came to the United States in 2008. Following an

argument with his brother twelve years later, Espinoza was charged with two counts of

second-degree assault and one count of malicious destruction of property valued at less

than $1,000. After his arrest, the government transferred Espinoza from the county jail to

an immigration detention center. At his bond hearing, where he, like Miranda, was

counseled, an immigration judge set bond at $20,000 because of Espinoza’s pending

criminal charges.

C.

Neither Miranda, Adegoke nor Espinoza appealed the detention decisions of their

respective immigration judges to the Board of Immigration Appeals. Instead, they

6 petitioned the United States District Court for the District of Maryland for writs of habeas

corpus claiming the government’s procedures for conducting § 1226(a) bond hearings

violated the Due Process Clause of the Fifth Amendment to the Constitution. They

requested the following relief:

declaratory and injunctive relief that prohibits further detention without a constitutionally adequate bond hearing—that is, a hearing in which the government bears the burden to prove by clear and convincing evidence that detention is necessary because the noncitizen is a danger to others or a flight risk, and that there is no condition or combination of conditions that will reasonably assure the noncitizen’s future appearance and the safety of the community.

J.A. 17. They also requested an order that, “in setting conditions of release, the immigration

court must consider the noncitizen’s ability to pay in setting the amount of any bond and

must consider the noncitizen’s suitability for release on alternative conditions of

supervision.” J.A. 17. In addition to seeking relief as individuals, they sought class action

relief by asking the district court to certify a class “defined as people who, now or at any

future time, are detained pursuant to

(a), and either had or will have a bond

hearing in the Baltimore Immigration Court in Baltimore, Maryland.” J.A. 37. Finally, in

addition to their constitutional claims, Miranda, Espinoza and Adegoke brought statutory

claims alleging that § 1226(a) required the same procedural protections.

Miranda, Adegoke and Espinoza then moved for a preliminary injunction as well as

for class certification. Before the district court ruled on these motions, Adegoke was

released from detention after being granted asylum and Miranda was released after an

7 immigration judge granted his motion for relief from withholding. 2 Their release presented

a potential issue of mootness. Miranda, Adegoke and Espinoza argued that, even though

Adegoke’s and Miranda’s claims are moot, they can still serve as class representatives,

because their standing relates back to the filing of the suit due to the inherently transitory

nature of their claims.

D.

Before determining whether Miranda, Adegoke and Espinoza were entitled to a

preliminary injunction, the district court analyzed whether it had jurisdiction to hear their

claims. First, the district court rejected the government’s argument that it had no

jurisdiction because Miranda, Espinoza and Adegoke, by suing in federal court rather than

appealing the immigration judge’s decision to the Board of Immigration Appeals, failed to

exhaust their administrative remedies. The court determined that although federal

regulations permitted Miranda, Adegoke and Espinoza to appeal the immigration judges’

bond and custody determinations to the Board, administrative exhaustion was not required

by statute. Then, the court examined the factors set forth in McCarthy v. Madigan,

(1992), in considering whether to exercise its discretion to excuse Miranda,

Espinoza and Adegoke’s failure to exhaust their administrative remedies. Ultimately, the

district court found that appealing to the Board would be futile in light of the Board’s

2 Adegoke’s detention lasted approximately six months and Miranda’s approximately five months. 8 decisions concerning detention under § 1226(a). 3 Therefore, it excused Miranda, Adegoke

and Espinoza from exhausting their claims before the Board.

Next, the district court analyzed whether

(e) or § 1252(a)(2)(B)

precluded its review. Section 1226(e) provides:

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.

Section 1252(a)(2)(B) provides:

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—

(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or

(ii) 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.

3 The district court cited In re Guerra,

, and In re Adeniji,

(BIA 1999), as Board decisions holding that the alien bears the burden to show to the satisfaction of an immigration judge that they merit release on bond. The district court cited other unpublished Board decisions providing that an immigration judge “need not consider a noncitizen’s ability to pay a set bond amount.” See J.A. 959 (citing In re Castillo-Cajura,

, at *1 (BIA Sept. 10, 2009), and In re Sandoval- Gomez,

, at *1 (BIA Dec. 15, 2008)). 9 The district court found that neither statute precluded it from reviewing the claims at issue

because the claims were not challenges to the Attorney General’s discretionary judgment

but instead constitutional and statutory challenges to detention procedures under § 1226(a).

After determining that it had jurisdiction to hear Miranda, Adegoke and Espinoza’s

claims, the district court considered their requested injunctive relief. It evaluated the

likelihood of success of their constitutional claim by applying the procedural due process

test found in Mathews v. Eldridge,

(1976). In applying that test to the

government’s requirement that aliens bear the burden to prove they are not a risk of flight

or danger under § 1226(a), the district court found that Miranda, Adegoke and Espinoza’s

liberty interests outweighed the government’s interest in enforcing immigration laws. As

to the standard of proof concerning detention, the court observed that the most common

standard is clear and convincing evidence, and, in concluding that standard applied in bond

hearings, the court emphasized that a lower standard of proof would inappropriately place

an individual’s liberty interest on the same footing as the government’s interest in

facilitating deportations. In considering an alien’s ability to pay and alternative conditions

of release, the district court emphasized that “[d]ue process requires that detention ‘bear[s]

[a] reasonable relation to the purpose for which the individual [was] committed.’” J.A. 968

(citations omitted). It then reasoned that “[f]ederal regulations and [the Board’s] decisional

law suggest that the purpose of § 1226(a) detention is to protect the public and to ensure

the noncitizen’s appearance at future proceedings.” J.A. 968. The district court held that

consideration of an alien’s financial resources and alternatives to detention was necessary

to ensure that detention was reasonably related to the purposes of § 1226(a). The court then

10 determined that the failure to consider those factors rendered detention decisions

unconstitutional because “the purpose of . . . detention—the lodestar of the due process

analysis—becomes less clear.” J.A. 970. In sum, the district court found that Miranda,

Adegoke and Espinoza’s claims had a likelihood of success on the merits.

Continuing its preliminary injunction analysis, the district court found the

requirement of irreparable harm was satisfied, because a “deprivation of a constitutional

right, ‘for even minimal periods of time, unquestionably constitutes irreparable injury.’”

J.A. 972 (citations omitted). Then, in considering the third and fourth requirements for

obtaining a preliminary injunction, the district court noted “the balancing of the harm and

the public interest merge when the government is the opposing party.” J.A. 974. It found

that the requested relief would have little impact on the government’s ability to enforce

immigration laws, that it is always in the public interest to prevent violations of

constitutional rights and that the costs imposed on the government are outweighed by

“preventable human suffering.” J.A. 974.

Finally, the district court turned to the scope of relief. “Based on the court’s finding

that significant constitutional rights are at stake, and the risk of irreparable harm,” the court

issued “a class-wide preliminary injunction” granting the requested relief. J.A. 976–77.

Further, since Espinoza remained detained, it ordered that he “receive a new bond hearing

within 21 days.” 4 J.A. 977. Since the district court granted Miranda, Espinoza and

4 Espinoza received a new bond hearing pursuant to the district court’s order. At that bond hearing, the immigration judge found that the government had met its burden to show that Espinoza was a flight risk but that such risk could be mitigated by ordering Espinoza to wear a GPS ankle monitor as a condition of release. 11 Adegoke’s motion for a preliminary injunction on their constitutional claim, it did not

address their statutory claim.

The government timely appealed the preliminary injunction order. The district court

then denied the motion for class certification without prejudice for possible renewal after

the conclusion of this appeal. We have jurisdiction to review under

(a)(1).

II.

Before we can reach the merits of this appeal, we must first determine whether the

district court had jurisdiction to hear Miranda, Adegoke and Espinoza’s claims and to issue

class-wide injunctive relief. See Arizonans for Official English v. Arizona,

(1997) (“Every federal appellate court has a special obligation to satisfy itself not only of

its own jurisdiction, but also that of the lower courts in a cause under review.” (cleaned

up)). As this inquiry is multi-faceted, we discuss jurisdiction at length. The government

advances three arguments concerning jurisdiction: (1) Because Miranda, Adegoke and

Espinoza failed to appeal their bond decisions to the Board, the district court lacked the

authority to review the immigration judge’s detention decision; (2)

(e)

strips the courts of jurisdiction to review discretionary detention decisions like those at

issue here; and (3) even if the courts have jurisdiction to consider the claims generally,

(f)(1) bars the courts from issuing class-wide injunctive relief concerning

detention and bond issues under § 1226. We now address these arguments.

12 A.

We first address the government’s argument that Miranda, Adegoke and Espinoza

were required to exhaust their administrative remedies by appealing the immigration

judges’ denial of bond to the Board. The government’s entire argument is contained in a

single footnote. Moreover, the government’s argument in its footnote is cursory at best—

it does not attempt to explain why the district court erred in concluding that Miranda,

Adegoke and Espinoza were not required to appeal their bond determinations to the Board.

Normally, such scant treatment of an issue would constitute waiver. See Foster v.

Univ. of Md.-E. Shore,

, 250 n.8 (4th Cir. 2015) (concluding that a party

waives an argument when its discussion of that argument is limited to an isolated footnote).

However, if the administrative exhaustion requirement relates to the district court’s

jurisdiction, the issue cannot be waived. Arbaugh v. Y&H Corp.,

(2006)

(holding that “subject-matter jurisdiction, because it involves a court’s power to hear a

case, can never be forfeited or waived” (citations omitted)); Hicks v. Ferreyra,

, 310 (4th Cir. 2020). Therefore, we must decide if the statutes, on which the

government’s failure-to-exhaust argument is based, are jurisdictional.

“The doctrine of administrative remedies is well established in the jurisprudence of

administrative law . . . [and] provides ‘that no one is entitled to judicial relief for a supposed

or threatened injury until the prescribed administrative remedy has been exhausted.’”

McKart v. United States,

(1969) (citations omitted). Congress may

codify the doctrine as a jurisdictional bar, and “[w]here Congress specifically mandates,

exhaustion is required.” McCarthy v. Madigan,

(1992); see also

13 Weinberger v. Salfi,

(1975). “But where Congress had not clearly

required exhaustion, sound judicial discretion governs.” McCarthy,

; Patsy

v. Board of Regents of State of Fla.,

(1982) (White, J., concurring)

(“[E]xhaustion is ‘a rule of judicial administration,’ and unless Congress directs otherwise,

rightfully subject to crafting by judges.” (citations omitted)).

Following that guidance from the Supreme Court, we turn to the pertinent statutes

regarding exhaustion in this context. The only provision cited by the parties regarding

administrative exhaustion is

(d)(1). That provision provides that “[a] court

may review a final order of removal only if . . . the alien has exhausted all administrative

remedies available to the alien as of right.” § 1252(d)(1). Whether or not that provision is

jurisdictional, it does not apply here since Miranda, Adegoke and Espinoza do not seek a

review of a final order of removal. Instead, they challenge the constitutionality of detention

procedures under § 1226(a).

The government has not pointed us to any other provision of the immigration laws

where Congress clearly required exhaustion, and neither have we found one. Therefore, no

statute applicable to Miranda, Espinoza and Adegoke’s claims provides that administrative

exhaustion is jurisdictional. For that reason, the district court had discretion to decide if

administrative exhaustion was required. Moreover, unlike provisions that provide the

courts with jurisdiction, challenges to a court’s exercise of its discretion can be waived.

See United States v. Muhammad,

, 130 (4th Cir. 2021) (“Because the

requirement is not jurisdictional, it may be waived or forfeited.”) Because the government

14 did not adequately address the district court’s determination that administrative exhaustion

was not required, the government waived this argument on appeal.

B.

The government also argues that § 1226(e) precluded the district court from hearing

these claims. As we stated earlier, § 1226(e) provides:

The Attorney General’s discretionary judgment regarding the application of [§ 1226] shall not be subject to review. No court may set aside any action or decision by the Attorney General under [§ 1226] regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.

According to the government, Miranda, Adegoke and Espinoza’s claims in effect are

challenges to the immigration judges’ discretionary bond decisions because they would

mandate what an immigration judge must consider at a bond hearing. They argue that

§ 1226(e) precluded the district court from reviewing such decisions.

The Supreme Court addressed this argument in Jennings,

. There,

the Supreme Court explained that Ҥ 1226(e) precludes an alien from challenging a

‘discretionary judgment’ by the Attorney General or a ‘decision’ that the Attorney General

has made regarding his detention or release.” Id. (cleaned up) (citing Demore v. Kim,

(2003)). However, it “does not preclude challenges to the statutory

framework that permits the alien’s detention without bail.”

(cleaned up) (citing Demore,

). In Jennings, aliens “challeng[ed] the extent of the [g]overnment’s

detention authority under the ‘statutory framework’ [of § 1226(c)] as a whole.” Id. The

Court explained the aliens also “contest[ed] the constitutionality of the entire statutory

scheme under the Fifth Amendment.” Id. Thus, it held “the extent of the Government’s

15 detention authority is not a matter of ‘discretionary judgment,’ ‘action,’ or ‘decision’” and

is thus “outside of the scope of § 1226(e).” Id.

This case is different from Jennings. There, § 1226(c) expressly placed the burden

of proof on the aliens. Thus, the appellant’s challenge as to the burden of proof was an

attack on § 1226(c)’s statutory framework. In contrast, § 1226(a) is silent on the burden of

proof. As a result, the Attorney General had discretion to decide who to place the burden

of proof on, and it placed it on the aliens. As such, the first sentence of § 1226(e)—“The

Attorney General’s discretionary judgment regarding the application of [§ 1226] shall not

be subject to review”—at least if read by itself, would seem to foreclose jurisdiction. But

we should not read that first sentence in isolation. See NLRB v. Lion Oil Co.,

(1957) (“In expounding a statute, we must not be guided by a single sentence or

member of a sentence, but look to the provisions of the whole law.”). The second sentence

provides: “No court may set aside any action or decision by the Attorney General under

[§ 1226] regarding the detention or release of any alien or the grant, revocation, or denial

of bond or parole.” That language clarifies the first sentence by explaining that subsection

(e) refers to a specific act or decision regarding bond or parole decisions. And while the

Attorney General’s decision to adopt procedures placing the burden of proof on aliens

detained under § 1226(a) may very well be discretionary, a constitutional challenge to its

categorical, across-the-board nature, as opposed to the application of § 1226 to specific

cases, is beyond the scope of § 1226(e).

Judge Richardson concludes that, rather than clarifying the first sentence, which

specifies “discretionary judgment,” the second sentence of § 1226(e) precludes judicial

16 review of two additional categories: “action[s]” and “decision[s]” of the

Attorney General. 5 Jennings, admittedly, supports this interpretation. See

.

In contrast, Nielsen v. Preap,

(2019) supports our conclusion. In examining

whether § 1226(e) bars a challenge to § 1226(c), a plurality of the Supreme Court stated

§ 1226(e) “applies only to ‘discretionary’ decisions about the ‘application’ of § 1226 to

particular cases.” Id. at 962. True, that position did not garner the support of Justices

Thomas or Gorsuch. But the dissenting justices did not object to Justice Alito’s

jurisdictional analysis. Since any one of the potential jurisdictional obstacles addressed

there would have precluded judicial review, the dissenting justices must have agreed that

§ 1226(e) was not a bar. And while Preap involved § 1226(c), which expressly provides

that the alien bears the burden of proof on detention, in contrast to § 1226(a), which leaves

that decision to the discretion of the Attorney General, Justice Alito does not base his

reasoning on this difference.

We recognize that reasonable minds might disagree if § 1226(e) precludes

jurisdiction. This is a close question of statutory interpretation, and the Supreme Court

decisions do not provide a clear answer. But for the reasons described above, we reject the

If this were Congress’ intent, there were clearer ways to indicate a list including 5

discretionary judgment, actions and decisions. For example, Congress could have said, with respect to § 1226, there shall be no judicial review of (1) discretionary judgments, (2) actions or (3) decisions. But in fairness, Congress likewise could have used clearer language in drafting the second sentence to indicate that it clarifies the first. For example, it could have said, because of this absence of judicial review, no court may set aside any action or decision by the Attorney General under § 1226 regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole. Hence, we are left to attempt to interpret what Congress meant. 17 government’s argument that we lack jurisdiction to consider these claims. Rather than

creating three different categories, the two sentences of § 1226(e), when read together,

show Congress sought to forbid review of the Attorney General’s actions and decisions in

individual proceedings.

The government counters that, at the very least, mandating the factors an

immigration judge must consider, such as an alien’s ability to pay and alternative bond

conditions, infringes on an immigration judge’s discretion. This is also a close call. But

whether an immigration judge must consider certain factors is still a “constitutional

challenge” to the procedures adopted by the Attorney General for all detention decisions

under § 1226(a). As a result, § 1226(e) does not bar our review. 6

6 Although neither party advances these provisions,

(a)(2)(B)(ii) and (b)(9) also limit the courts’ jurisdiction over immigration matters. We ordinarily limit our review to the arguments made by the parties. However, we are bound by the Constitution to ensure that we have, and the lower court had, jurisdiction over the claims at issue. Bender v. Williamsport Area School Dist.,

(1986). Beginning with § 1252(a)(2)(B)(ii), the Supreme Court held that § 1252(a)(2)(B)(ii) did not bar jurisdiction where the aliens “challenge[d] the extent of the Attorney General’s authority under the post-removal-period detention statute,” which “is not a matter of discretion.” Zadvydas v. Davis,

(2001). Similarly, Miranda, Espinoza and Adegoke challenge the extent of the government’s authority under § 1226(a) rather than a discretionary decision. Thus, under Zadvydas, § 1252(a)(2)(B)(ii) does not foreclose jurisdiction. Section 1252(b)(9)’s jurisdictional limitation includes “interpretation and application of constitutional and statutory provisions.” Even so, in Jennings, a majority of justices appear to have concluded that § 1252(b)(9) would not preclude review under these circumstances. See

(Alito, J., joined by Roberts, C.J., and Kennedy, J.) (“[R]espondents are not asking for review of an order of removal; they are not challenging the decision to detain them in the first place or to seek removal; and they are not even challenging any part of the process by which their removability will be determined. Under these circumstances, § 1252(b)(9) does not present a jurisdictional bar.”); id. at 876 (Breyer, J., dissenting, joined by Ginsburg, J., and Sotomayor, J.) (“Jurisdiction also is unaffected by

(b)(9), which by its terms applies only ‘[w]ith respect to review of an order of removal under [§ 1252(a)(1)].’”). 18 C.

Last, the government argues that

(f)(1) deprived the district court of

jurisdiction to issue class-wide injunctive relief. In response, Miranda, Adegoke and

Espinoza first argue that the government waived that argument by failing to raise it before

the district court in opposition to their motion for a preliminary injunction. They contend

that because § 1252(f)(1) is not jurisdictional, we can consider any argument dependent

upon that section waived. And even if it was jurisdictional, Miranda, Adegoke and

Espinoza argue that it simply does not apply to the district court’s preliminary injunction.

However, echoing its argument concerning the exhaustion of administrative

remedies, the government contends that § 1252(f)(1) implicates the court’s subject-matter

jurisdiction. As we discussed at length above, a court’s jurisdiction “may be raised by a

party at any time or by a court on its own initiative.” Hicks, 965 F.3d at 310; see also

Arbaugh,

. Therefore, we must consider whether § 1252(f)(1) is a

jurisdictional limit on the courts.

For two reasons, we conclude that § 1252(f)(1) is a jurisdiction-stripping statute.

First, the text of § 1252(f)(1) provides:

(f) Limit on injunctive relief

(1) In general

Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an

19 individual alien against whom proceedings under such part have been initiated.

By its plain terms, the provision restricts a court’s “jurisdiction or authority to enjoin or

restrain the operation of” the process used for detaining aliens under § 1226(a). This

language is compelling evidence the section is jurisdictional in nature.

Second, the Supreme Court’s decision in Reno v. American-Arab Anti-

Discrimination Committee,

(1999), when considered in conjunction

with other Supreme Court decisions involving statutes with similar language, provides

strong evidence that § 1252(f)(1) is jurisdictional. There, aliens claimed that the

Immigration and Naturalization Service (INS) “was selectively enforcing immigration

laws against them.” Id. at 474. In response to the INS’s argument that § 1252(g) deprived

the district court of jurisdiction, the circuit court had interpreted § 1252(g) to incorporate

certain exceptions within § 1252, including subsection (f). The Ninth Circuit found

§ 1252(f) preserved federal jurisdiction. Am.-Arab Anti-Discrimination Comm. v. Reno,

, 1374 (9th Cir. 1997). The Supreme Court disagreed. In rejecting the circuit

court’s interpretation of § 1252(f) as a “jurisdictional grant,”

, it discussed

the subsection’s meaning:

It prohibits federal courts from granting classwide injunctive relief against the operation of §§ 1221–1231, but specifies that this ban does not extend to individual cases. To find in this an affirmative grant of jurisdiction is to go beyond what the language will bear.

Id. at 481–82.

While it may be debatable as to whether Reno held that § 1252(f)(1) was a

jurisdiction-stripping statute, § 1252(f)(1)’s “no court shall have jurisdiction” language is

20 the same language found in § 1252(g) and § 1252(b)(9). And the Supreme Court has held

that both of those statutes strip the courts of jurisdiction. See, Reno,

(holding that “8 U.S.C. § 1252(g) deprives the federal courts of jurisdiction over

respondents’ claims”); Johnson v. Guzman Chavez,

, 2292 (2021) (Thomas,

J., concurring) (citing § 1252(b)(9) as a Congressional measure to restrict the courts’

jurisdiction).

In fact, two members of the Supreme Court have cited Reno as authority that

§ 1252(f)(1) limits a district court’s jurisdiction to issue class-wide injunctive relief. See

Nielsen v. Preap,

(2019) (Thomas, J., concurring, joined by Gorsuch,

J.). And of our sister circuits that have addressed this issue, a majority agree that

§ 1252(f)(1) goes to jurisdiction. See Brito v. Garland,

, 250 (1st Cir. 2021)

(holding that Supreme Court precedent clearly shows that § 1252(f)(1) prohibits a district

court from issuing a class-wide injunction enjoining the operation of § 1226(a)); Gayle v.

Warden Monmouth Cnty. Corr. Inst.,

, 336–37 (3d Cir. 2021) (“holding that

§ 1252(f)(1) prohibits class-wide injunctions”); Hamama v. Adducci,

(6th Cir. 2018) (holding that the Supreme Court’s decision in Reno “unambiguously strips

federal courts of jurisdiction to enter class-wide injunctive relief”); Van Dinh v. Reno,

(10th Cir. 1999) (holding that Ҥ 1252(f) forecloses jurisdiction to grant

class-wide relief to restrain operation of §§ 1221–31 by any court other than the Supreme

Court”); but see Padilla v. ICE,

, 1149–51 (9th Cir. 2020) rev’d on other

grounds,

(2021); Grace v. Barr,

, 908 (D.C. Cir. 2020).

21 Miranda, Adegoke and Espinoza advance two countervailing arguments that

§ 1252(f)(1) is not jurisdictional. First, they contend the heading of the section, “Limit on

injunctive relief,” indicates § 1252(f)(1) merely limits the courts’ powers rather than strips

courts of jurisdiction. We disagree. While perhaps relevant, a statute’s heading is still far

less instructive than its actual text. Yates v. United States,

, 559 (“‘[T]he

heading of a section cannot limit the plain meaning of the text.’”) (Kagan, J., dissenting)

(quoting Brotherhood of R.R. Trainmen v. Baltimore & Ohio R. Co.,

, 528–

29 (1947)); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation

of Legal Texts 222 (2012). And, if we are to consider the heading of § 1252(f)(1), we must

also consider the heading of the title under which that section falls. The title’s heading

refers to “Judicial review,” which implies that the statute addresses the courts’ jurisdiction,

not their remedial powers. At most, the heading of § 1252(f) and the title of § 1252 cancel

each other out.

Second, Miranda, Adegoke and Espinoza argue that while § 1252(f)(1) uses

jurisdictional language, it does not implicate the court’s power to act. Rather, they argue

the statute’s “to enjoin or restrain the operation of” language indicates that it only limits

the courts’ remedial powers. They insist that language is not sufficiently clear to limit the

district courts inherent, equitable powers. In support of this position, Miranda, Espinoza

and Adegoke rely on the Supreme Court’s decision in Steel Co. v. Citizens for a Better

Environment,

(1998), which cautions that “[j]urisdiction . . . is a word of many,

too many, meanings.”

(internal punctuation omitted) (citation omitted). However,

§ 1252(f)(1) is distinguishable from the statute in Steel Co. The statute there, 42 U.S.C.

22 § 11046(c), created a private cause of action for violations of the Emergency Planning and

Community Right-To-Know Act of 1986, whereas § 1252(f)(1) expressly takes away

jurisdiction. Returning to the text, the statute provides that “no court (other than the

Supreme Court) shall have jurisdiction.” We are unpersuaded that Congress used the word

jurisdiction in § 1252(f)(1) without meaning subject-matter jurisdiction.

Even though we conclude § 1252(f)(1) is jurisdictional, Miranda, Adegoke and

Espinoza advance three arguments why it does not apply to the injunction issued by the

district court in this case. First, they point out that, unlike § 1252(e)(1)(B), which explicitly

refers to Rule 23 of the Federal Rules of Civil Procedure in limiting the certification of

class actions, § 1252(f)(1) does not mention class actions specifically. The absence of such

specific reference to class actions, they argue, means § 1252(f)(1) does not have the

preclusive effect the government suggests. We disagree. Congress’s explicit reference to

Rule 23 in § 1252(e)(1)(B) does not mean it must include such language in every section

for the section to apply to class actions. Section 1252(f)(1)’s language limiting the

“jurisdiction and authority” of the courts to enjoin § 1226(a) only with respect “to an

individual alien” is sufficiently clear to indicate that courts lack jurisdiction to issue class-

wide injunctive relief with respect to the processes used to detain aliens under § 1226(a).

And § 1252(f)(1) applies “[r]egardless of the nature of the claim or the identity of the party

or parties.”

Second, they argue that the district court’s injunction does not enjoin or restrain the

operation of § 1226(a). According to Miranda, Espinoza and Adegoke, § 1226(a) is silent

as to what procedures are required in custody-determination hearings. Thus, they insist the

23 district court’s injunction could not have enjoined or restrained its operation. Again, we

disagree. The statute provides the government with discretion to determine whether to

detain or release an alien facing deportation. And it leaves the process for making that

decision to the Attorney General. Despite that, the district court ordered that the

government must bear the burden of proof in justifying detention, and that an immigration

judge must consider an alien’s ability to pay and alternative conditions of supervision in

setting bond. Requiring the government to justify a decision the statute gave it discretion

to make and requiring immigration judges to consider factors the statute did not require

them to consider enjoins and restrains the operation of the statute.

By way of analogy, assume the rules of football—as they do—permit a forward

pass. Despite those rules, the referee later decides that a team must justify in advance its

decision that a pass is a good idea. Before the referee’s new rule, the team had discretion

whether to run or throw the ball. After the referee’s new rule, the team no longer has that

discretion. Instead, it can throw the ball only if the referee agrees in advance to the pass

play. In the same way, preventing the discretionary detention permitted under § 1226(a)

when the detention does not comply with new judicially created rules enjoins and restrains

the operation of the statute.

Last, Miranda, Adegoke and Espinoza contend that § 1252(f)(1) does not apply to

this class action because each member of the class action falls within the provision’s

exception for “an individual alien against whom proceedings under [the immigration laws]

have been initiated.” Resp. Br. 45 (citing Padilla v. ICE,

, 1149–51 (9th Cir.

2020), vacated on other grounds by

(2021)); see also Jennings,

at 875 (Breyer, J., dissenting). According to Miranda, Adegoke and Espinoza, each class

member is an individual alien against whom removal proceedings have been brought. Thus,

they insist that § 1252(f)(1) is inapplicable to them because it only applies to injunctions

that provide relief to persons not yet in removal proceedings.

This argument disregards the plain language of § 1252(f)(1). Hamama,

(holding the same “argument does violence to the text of the statute”). The exception

clause in § 1252(f)(1) applies to “the application of such provisions to an individual alien

against whom proceedings . . . have been initiated.”

(f)(1) (emphasis

added). Except for the part that pertains to Espinoza, the district court’s order does not

apply to “an individual alien.” It applies to multiple aliens, since it applies in “all future

bond hearings conducted in the District of Maryland for individuals held pursuant to

(a).” J.A. 947. And a class of individuals is no longer “an individual,” it is a

group. The only way to interpret § 1252(f)(1) in the way Miranda, Adegoke and Espinoza

suggest is to judicially strike “individual” from the statute. But our responsibility is to

interpret the laws Congress passes, not rewrite them. By its express terms, § 1252(f)(1)

allows a court to issue individual relief, but it bars class-wide relief. Am. Immigration

Lawyers Ass’n v. Reno,

(D.C. Cir. 2000) (“Congress meant to allow

litigation challenging the new system by, and only by, aliens against whom the new

procedures had been applied.”).

To summarize, § 1252(f)(1) expressly precludes “jurisdiction or authority to enjoin

or restrain” provisions of the immigration laws, including § 1226(a), on a class-wide basis.

Despite this provision, the district court imposed class-wide limitations on the discretionary

25 detention decisions permitted under § 1226(a). Such an order is impermissible in light of

§ 1252(f)(1)’s jurisdictional bar. None of Miranda, Adegoke and Espinoza’s arguments

convince us that the district court had jurisdiction to issue the class-wide injunctive relief

concerning the application of § 1226(a). Accordingly, we vacate that aspect of the district

court’s order.

D.

Since the district court lacked subject-matter jurisdiction to issue a class-wide

preliminary injunction, we must determine whether immediate remand is appropriate or if

there are any lingering issues on appeal that we may review. Aside from issuing class-wide

injunctive relief, the district court’s order also granted Espinoza individual relief. As we

just discussed, § 1252(f)(1) does not bar a district court from issuing injunctive relief

enjoining the process used to detain under § 1226 as it relates to an individual alien against

26 whom removal proceedings have been initiated. Thus, we may review the order as it

pertains to Espinoza. 7

III.

We now turn to Espinoza’s due process claims, providing first the standard by which

we review the district court’s preliminary injunction order before turning to the merits of

this appeal.

A.

“A plaintiff seeking a preliminary injunction must establish that he is likely to

succeed on the merits, that he is likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in his favor, and that an injunction is in

the public interest.” Winter v. Nat. Res. Def. Council, Inc.,

(2008). We

review a district court’s grant of a preliminary injunction for an abuse of discretion.

7 As if there were not enough already, an additional jurisdictional wrinkle is whether the government’s supervised release of Espinoza rendered his claim moot. For several reasons, we conclude it did not. First, Espinoza’s supervised release resulted from the district court’s order that is the subject of this appeal. It would create perverse incentives if compliance with a district court’s order, while appealing that order, mooted the appeal. Second, the district court’s order here granted a preliminary injunction. Such preliminary relief only applies “during the pendency of a lawsuit.” Di Biase v. SPX Corp.,

(4th Cir. 2017). Holding Espinoza’s claim to be moot would transform success on a motion for a preliminary injunction to final relief. Third, the government “at any time may revoke a bond . . . authorized under [

(a)], rearrest the alien under the original warrant, and detain the alien.”

(b). As § 1226(b) does not provide any limiting conditions for revoking bond, revocation remains a matter of discretion for the government. And, if we were to agree with the government’s arguments on appeal, and the government still believed Espinoza to be a danger to the community or a flight risk, it could rearrest Espinoza and require him to show he is neither a risk of flight nor a danger to the community before releasing him from custody. Thus, the preliminary injunction granted to Espinoza remains a live controversy. 27 Mountain Valley Pipeline, LLC v. 6.56 Acres of Land,

(4th Cir. 2019).

An error of law is an abuse of discretion and thus “grounds for reversal.”

B.

With that standard in mind, we turn to the parties’ dispute as to whether the

procedures the government affords in § 1226(a) bond hearings violate the Constitution.

Even though Espinoza received notice of the government-sought detention and three

opportunities for bail, he claims the procedures adopted by the government to carry out

§ 1226(a) deny him due process. More specifically, he claims the process leading to

detention is unconstitutional because the Attorney General places the burden of proof on

him, adopts the preponderance of evidence standard and fails to require every immigration

judge to consider either the alien’s ability to pay any amount of bond assessed or

alternatives to detention.

Espinoza characterizes his claims as a procedural due process issue, challenging

what process the Constitution requires the government to provide in a § 1226(a) bond

hearing. In analyzing Espinoza’s claims below, the district court used the balancing test

from Mathews v. Eldridge,

(1976). Mathews “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 the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

28

. 8 Both Espinoza and the government agree that the Mathews test governs.

Furthermore, the First and Ninth Circuits have employed the Mathews balancing test to

evaluate due process challenges to the procedures used by the government under § 1226(a).

See Hernandez-Lara v. Lyons,

, 27–28 (1st Cir. 2021); Singh v. Holder,

(9th Cir. 2011). Therefore, we will apply it to Espinoza’s due process

claims.

1.

We begin with the private interest. Here, the district court correctly noted that the

private interest at stake is freedom from detention, a liberty interest which “lies at the heart

of the liberty that [the Due Process] Clause protects.” Zadvydas,

. In

describing that interest, the district court cited to Addington v. Texas,

(1979),

which involved civil commitment. There, the Supreme Court held that “the individual’s

interest in the outcome of a civil commitment proceeding is of such weight and gravity that

due process requires the state to justify confinement by proof more substantial than a mere

preponderance of the evidence.”

. But Addington involved detention of United

States citizens whereas § 1226(a) involves detention of aliens awaiting removal hearings. 9

8 The Mathews balancing test has been the subject of some criticism. “The balance is simply an ad hoc weighing which depends to a great extent upon how the Court subjectively views the underlying interests at stake.” Cleveland Bd. of Educ. v. Loudermill,

(1985) (Rehnquist, J., dissenting). Nevertheless, it remains binding law. 9 In addition to Addington, Espinoza cites to other cases including Foucha v. Louisiana,

(1992), which also involved civil commitment, and Santosky v. Kramer,

(1982), which involved the termination of parental rights. These cases also involve the process due citizens. 29 The requirements of Addington, which apply to the detention of citizens, do not

apply in the context of immigration removal proceedings. Due process is not a one size fits

all proposition. To the contrary, “due process is flexible and calls for such procedural

protections as the particular situation demands.” Morrissey v. Brewer,

(1972). Moreover, “[i]ts flexibility is in its scope once it has been determined that some

process is due; it is a recognition that not all situations calling for procedural safeguards

call for the same kind of procedure.” Id.; see also Landon v. Plascencia,

(1982) (“The constitutional sufficiency of procedures provided in any situation, of course,

varies with the circumstances.”).

This is particularly true in the immigration context. The Supreme Court has stated

over and over that “‘[i]n the exercise of its broad power over immigration and

naturalization, Congress regularly makes rules that would be unacceptable if applied to

citizens.’” Demore,

(quoting Mathews v. Diaz,

, 79–80 (1976));

see also Reno v. Flores,

, 305–06 (1993) (quoting Fiallo v. Bell,

(1977), in turn quoting Mathews, 426 U.S. at 79–80); United States v. Verdugo-Urquidez,

(1990) (citing Mathews, 426 U.S. at 79–80).

In addition to Addington, the district court relied on Zadvydas. There, the Supreme

Court considered a due process challenge to the detention of aliens under

,

which governs detention following a final order of removal. Despite the order of removal,

the government was unable find a country that would accept the aliens. Zadvydas, 533 U.S.

at 684–86. Thus, they remained in detention under § 1231, which provides that an alien

“may be detained beyond the removal period” in the discretion of the Attorney General.

30 While the Court ultimately decided the case by interpreting the statute based on the doctrine

of constitutional avoidance, it suggested that an alien’s liberty interest was “strong enough

to raise a serious question as to whether, irrespective of the procedures used, the

Constitution permits detention that is indefinite and potentially permanent.” Id. at 696

(internal citation omitted) (emphasis added).

But the Supreme Court subsequently confined Zadvydas to the narrow

circumstances presented there—the likelihood of indefinite detention. In Demore, the

Supreme Court considered whether

(c), § 1226(a)’s sister section, violated

the Constitution’s Due Process Clause. Unlike § 1226(a), § 1226(c) explicitly provides that

aliens with prior convictions of certain crimes shall be detained pending their removal

hearings. It permits such aliens to be released on bond but only if the alien establishes that

he or she is not a risk of danger or a flight risk, and establishes that release of the alien “is

necessary to provide protection to a witness, a potential witness, a person cooperating with

an investigation into a major criminal activity, or an immediate family member or close

associate of a witness of a witness, potential witness, or person cooperating with such an

investigation.” § 1226(c).

In Demore, an alien argued that the Due Process clause prevents the categorical

placement of that burden on the alien. The Supreme Court disagreed. While acknowledging

that aliens have due process rights, the Court again made clear that “[i]n the exercise of its

broad power over naturalization and immigration, Congress regularly makes rules that

would be unacceptable if applied to citizens.” Demore,

(citations omitted).

In rejecting the alien’s claim, the Supreme Court first identified the problem § 1226(c) was

31 intended to address. “[I]n adopting § 1226(c), Congress had before it evidence suggesting

that permitting discretionary release of aliens pending their removal hearings would lead

to large numbers of deportable criminal aliens skipping their hearings and remaining at

large in the United States unlawfully.” Id. at 528. Then, the Court held that “when the

Government deals with deportable aliens, the Due Process Clause does not require it to

employ the least burdensome means to accomplish its goal.” Id. Rather, the Court asked

whether the evidence before Congress supported the approach Congress took. “The

evidence Congress had before it certainly supports the approach it selected even if other,

hypothetical studies might have suggested different courses of action.” Id. The Court

refused to impose its own policy judgment on how best to ensure aliens’ attendance at

future removal proceedings. See id.

Also, and relevant to the district court’s reliance on Zadvydas, the Supreme Court

held that the due process concerns regarding post-removal hearing detention described in

Zadvydas did not apply to detention pending the removal hearing. The Court distinguished

Zadvydas by pointing out that the aliens there faced effectively unlimited detention under

§ 1231. Id. at 527. In contrast, the government’s detention of aliens in Demore pending

their removal hearing was “of a much shorter duration.” Id. at 528.

Even though Demore involved detention under § 1226(c) rather than § 1226(a), the

statutory language of § 1226(c) and the procedures adopted by the Attorney General under

§ 1226(a) are identically distinguishable from the procedures at issue in Zadvydas. Just as

it was in Demore, detention under § 1226(a) is pending an alien’s removal hearing.

32 Accordingly, just like in Demore, the detention here is of a much shorter duration than the

indefinite and potentially permanent detention in Zadvydas.

In addition to Demore, Jennings confirms that Zadvydas should not be expanded

beyond the context of the indefinite and potentially permanent detention involved there. In

Jennings, an alien challenged his detention based on statutory grounds, specifically under

§§ 1225 and 1226.

. The Supreme Court rejected the alien’s attempt to

analogize his case to Zadvydas. The Court explained that Zadvydas involved a limitless

detention, whereas detention under §§ 1225 and 1226 is for a specified period of time—

the time it takes to conduct a removal hearing. Id. at 844, 846–48. After Jennings and

Demore, Zadvydas has little bearing on the detention procedures at issue here.

In short, the district court failed to recognize and incorporate into its analysis

Supreme Court precedent establishing that aliens are due less process when facing removal

hearings than an ordinary citizen would have. This failure constitutes an error of law.

2.

The district court also erred in applying the second Mathews factor—the risk of an

erroneous deprivation of the private interest through the procedures used and the probable

value that additional or substitute procedures would reduce that risk. In fact, other than

reciting the factor, the district court failed to analyze it at all. That alone justifies vacating

the preliminary injunction order. But we will nevertheless consider Espinoza’s arguments

on this issue.

On appeal, Espinoza offers a litany of complaints about the procedures the

government has adopted for § 1226(a) hearings. He complains that detention, with limited

33 visitation rights, prejudices an alien’s ability to prepare for hearings. And although he was

represented by counsel at his bond hearing, Espinoza adds that, with no constitutional right

to counsel, aliens often go unrepresented at bond hearings. Espinoza continues that the

burden placed on aliens requires the government to present little to no evidence that the

alien is a danger to the community or a flight risk. Moreover, according to Espinoza, an

alien is rarely given access to the government’s evidence before a bond determination and

documents are seldom translated into the alien’s native language. Last, Espinoza points out

that the resources and expertise that aliens have pales in comparison to those of the

government.

For four reasons, these complaints fail to show how the current procedures result in

erroneous deprivations of liberty or how the procedures Espinoza proposes will reduce

erroneous detention decisions. First, complaints about the right to counsel, advanced notice

of the government’s position or access to evidence and documents translated into an alien’s

native language are separate procedural complaints from those Espinoza advances. If those

procedures are problematic, they—rather than the burden of proof—should be the subject

of Espinoza’s challenge. Even if the government bears the burden of proof, that change

would not alleviate Espinoza’s concerns about a lack of counsel, an absence of notice of

the government’s position and a lack of access to evidence and documents translated into

an alien’s native language.

Second, while the parts of detention hearings about which Espinoza complains may

be more favorable to the government, others are more favorable to him. For example, aliens

should know as much or more than the government about their own criminal history, and

34 they should know more than the government about any mitigating evidence related to that

history. They should also know more than the government about family or employment

information, which could bear on their risk of flight and any danger they pose to the

community. And, besides public records of criminal activity—which again, the aliens

should know more about than the government—the government likely has very little

information about how an alien entered the United States, how long an alien has remained

in the United States and what the alien has been doing while in the United States. Thus,

Espinoza fails to establish that the detention proceedings are tipped steeply in favor of the

government.

Third, aliens already receive the fundamental features of due process—notice and

an opportunity to be heard. See Mathews,

(“The fundamental requirement

of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful

manner.’” (citations omitted)). The current procedures provide aliens detained by the

government three separate opportunities to make their case concerning bond. The first of

these opportunities, which occurs before an immigration officer, occurs almost

immediately upon an alien being detained. The second opportunity for bond, a hearing

before an immigration judge, often occurs soon thereafter. At that hearing, an alien has an

opportunity to present evidence that he or she should be released, including through

witnesses and documents. And aliens can be, and often are, represented by counsel at such

hearings. As a third opportunity, if still denied bond, the alien may immediately appeal that

decision to the Board.

35 In addition, immigration judges and the Board have the guidance of a list of factors

outlined in the agency’s decision in In re Guerra 10 to utilize in determining whether bond

is warranted and under what conditions. These factors provide a non-exhaustive, but

flexible menu of considerations relevant to detention decisions. Despite Espinoza’s

complaints, these procedures provide substantial process.

Fourth, the additional process Espinoza seeks conflicts with Supreme Court

precedent in similar circumstances. Consider first Espinoza’s claim that the burden of proof

should be on the government to prove, by clear and convincing evidence, that an alien is a

risk to abscond or a danger to community safety. This argument is based on the notion that

categorical detention is improper. According to Espinoza, individualized assessments,

where the government bears the burden of proof, are required. But the Supreme Court has

determined that several statutory procedures that presume detention categorically do not

10 The factors in determining risk may include any or all of the following:

(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,

; see also

(d) (“The determination of the Immigration Judge as to custody status or bond may be based upon any information that is available to the Immigration Judge or that is presented to him or her by the alien or Service.”). 36 offend the Constitution. See Carlson v. Landon,

, 542–44 (1952) (mandatory

detention of aliens who were communists or anarchists); Demore,

(§ 1226(c)’s presumption of detention for aliens convicted of certain crimes pending their

removal hearings); Flores,

(the categorical requirement that minor aliens

only be released to relatives or certain approved guardians).

Moreover, the Bail Reform Act, which the Supreme Court has held to be

constitutional, also supports this conclusion. See United States v. Salerno,

(1987). It “allows a federal court to detain an arrestee pending trial if the Government

demonstrates by clear and convincing evidence after an adversary hearing that no release

conditions ‘will reasonably assure . . . the safety of any other person and the community.’”

(alteration in original) (quoting

(e)). But the government does

not bear the burden of proof in every bail hearing. Sections 3142(e)(2) and (3) create

rebuttable presumptions for certain arrestees that “no condition or combination of

conditions will reasonably assure the safety of any other person and the community.”

(e)(2), (3). For example, a person convicted of a prior federal offense, if it is

an offense listed under § 3142(f)(1), such as an offense for which the maximum sentence

is life imprisonment or death, would face this rebuttable presumption. Moreover, arrestees

face this presumption if the judicial officer finds there is probable cause to believe they

committed certain drug offenses, see id. § 3142(e)(3)(A); committed firearms offenses,

serious crimes in a foreign country, or terrorism, see id. § 3142(e)(3)(B); engaged in

peonage, slavery, or trafficking in persons, see id. § 3142(e)(3)(D); or committed certain

offenses involving a minor victim, see id. § 3142(e)(3)(E).

37 In each of these circumstances, the flip of the burden occurs “if the judicial officer

finds that there is probable cause to believe that the person committed” the offense, thus

the presumption shifts from the government to the arrestee before the arrestee is convicted.

See id. § 3142(e)(3) (emphasis added). Even more telling, the rebuttable presumption

applies to everyone, even citizens who are subject to an arrest. See id. § 3142(a) (noting

that the statute applies to “persons”). If, in the criminal context, requiring citizens to bear

the burden to show that they are not a danger to the community and a flight risk is not

unconstitutional, it cannot be unconstitutional for the government to place a similar burden

on an alien facing removal proceedings, especially considering the detention lasts only

until removal.

Consider next Espinoza’s argument that immigration judges must consider an

alien’s ability to pay any bond amount and alternative measures to detention to ensure

aliens do not abscond before their removal hearings. Espinoza provides no specific

evidence of incorrect deprivations of liberty under the current procedures that would be

eliminated by the procedures he advances. Instead, his argument seems to be that the

current procedures cast too wide a net, and that the proposed procedures constitute less

burdensome means of achieving the government’s goals. But even if Espinoza is correct

on this point, the Supreme Court has instructed us that is not the proper analysis for

deportable aliens. Demore,

(“[W]hen the Government deals with

deportable aliens, the Due Process Clause does not require it to employ the least

burdensome means to accomplish its goal.”). In § 1226(a), Congress provided the

38 government with discretion to determine when to grant an alien bond. 11 It did not mandate

the factors that must be considered in determining whether to grant bond. And it also

provided three opportunities for aliens to make their case that they should be released. That

process is more than sufficient to address any overbreadth concerns with the current

process. Requiring the procedures Espinoza requests would in effect be constitutionalizing

immigration policy decisions. That is not our job.

In sum, the district court failed to even analyze whether the current procedures used

in § 1226(a) bond hearings carry risks of an erroneous deprivation of liberty or whether

different detention procedures would mitigate such risks. And Espinoza’s arguments to us

on appeal conflict with guidance from the Supreme Court.

3.

Finally, the third Mathews factor is the government’s interest in using the current

process, including the burdens it would incur in using additional or substitute process. The

district court erred in applying it as well.

The district court only considered the financial costs to the government of the

additional procedures. It held that those financial costs were outweighed by an alien’s

liberty interests in not being detained. That analysis fails to even identify, much less

11 Congress set a minimum bond amount of $1,500.

(a)(2)(A). We normally “assume [Congress] legislates in light of constitutional limitations.” Almendarez- Torres v. United States,

(1998) (citations omitted). A categorical minimum bond amount suggests that due process does not require immigration judges to consider an alien’s ability to pay because setting a minimum amount necessarily denies bond to at least some aliens who could not pay bond set at $1,500. 39 address, the government’s other interests in the current procedures, especially its control

over matters of immigration.

In determining what process is due in a matter relating to immigration, “it must

weigh heavily in the balance that control over matters of immigration is a sovereign

prerogative, largely within the control of the executive and the legislature.” Landon v.

Plasencia,

(1982). “[A]ny policy toward aliens is vitally and intricately

interwoven with contemporaneous policies in regard to the conduct of foreign relations,

the war power, and the maintenance of a republican form of government.” Mathews v.

Diaz,

, 81 n.17 (quoting Harisiades v. Shaughnessy,

, 588–89

(1952)). And Congress has repeatedly shown that it considers immigration enforcement—

even against otherwise non-criminal aliens—to be a vital public interest, so vital that it has

tried to cabin judicial review of immigration enforcement. See, e.g., 8 U.S.C. §§, 1226(a),

1226(e), 1252(f)(1).

Importantly, during the deportation process, that government interest includes

detention. Over one hundred years ago, the Court stated deportation proceedings “would

be vain if those accused could not be held in custody pending the inquiry into their true

character.” Wong Wing v. United States,

(1896). As evident from Flores

and Demore, this principle runs through Supreme Court immigration cases since that time.

The district court erred by not identifying, and thus not considering, the government’s

significant interest in detaining aliens pending their removal hearings.

40 C.

When we consider applicable Supreme Court authority in reviewing the district

court’s application of the Mathews test, we conclude that the district court erred because

Espinoza did not meet his burden to show a likelihood of success on his claim that requiring

an alien in a § 1226(a) bond hearing to show, by a preponderance of evidence, that he is

not a danger to the community nor a flight risk violates an alien’s rights under the Due

Process Clause. Espinoza also failed to meet his burden to show a likelihood of success on

his claim that due process requires immigration judges in § 1226(a) bond hearings to

consider an alien’s ability to pay and alternative conditions on release. Aliens facing

removal proceedings, although entitled to due process under the Constitution, are not

entitled to the same process as citizens. The government has a significant interest in

maintaining the current procedures, which already provide an alien three different

opportunities to receive bond. The alien’s burden of proof is only to show, by a

preponderance of the evidence, that he or she is not a danger to the community or a flight

risk. Those procedures, for individuals already in the country unlawfully, do not violate the

Constitution’s Due Process Clause.

As for the other factors of the preliminary injunction analysis, Espinoza fails to

show they weigh in favor of a preliminary injunction. The district court premised its finding

that Espinoza would suffer irreparable harm absent injunctive relief, the second factor, on

its finding of a likelihood of success on the merits on his due process claim. The district

court correctly noted that a deprivation of a constitutional right, “for even minimal periods

of time, unquestionably constitutes irreparable injury.” Elrod v. Burns,

, 373

41 (1976). But as we have discussed above, the district court erred in finding that Espinoza

had demonstrated a likelihood of success on his claim that he was denied due process

during his bond hearing. Without his alleged constitutional injury, Espinoza has failed to

show that he will suffer irreparable harm.

The district court also erred in concluding that factors three and four, the balance of

the equities and the public interest, weighed in favor of granting a preliminary injunction.

Those factors “merge when the Government is the opposing party.” Nken v. Holder,

(2009); cf.

(noting the “substantial overlap” between the factors

governing the tests for granting a party a stay and for granting a preliminary injunction and

noting that the last two factors for granting a stay merge when the government is an

opposing party). Here, the district court’s preliminary injunction order mandated a broad

change in the government’s policy of detaining aliens pending removal proceedings. The

preliminary injunction effectively requires the government to bear the burden to prove that

an alien in a removal proceeding is not a flight risk nor a danger to the community, even

when the government may know nothing about the alien. The injunction also infringes

upon the discretion of the Attorney General to allow immigration judges to decide which

factors are relevant in determining if an alien is entitled to bond, and, if so, how much bond

should be imposed. The enforcement of our immigration laws is the government’s

“sovereign prerogative,” Rusu v. INS,

, 320 (4th Cir. 2002), and “detention is

necessarily a part of [the removal] procedure,” Carlson,

. The balance of

the equities and public interest do not weigh in favor of the sea change in bond hearings

that Espinoza desires.

42 To be sure, we review a grant of a preliminary injunction for abuse of discretion.

But, as noted above, the district court’s analysis contained errors of law at each stage of

the Mathews analysis which, in turn, infected its consideration of the preliminary injunction

factors. Considering the preliminary injunction factors without these legal errors, none

favor granting such an injunction.

We recognize that our decision conflicts with decisions from two of our sister

circuits. In Hernandez-Lara, the First Circuit held that “in order to continue detaining [an

alien] under section 1226(a), due process requires the government to either (1) prove by

clear and convincing evidence that she poses a danger to the community or (2) prove by a

preponderance of the evidence that she poses a flight risk.” 10 F.4th at 41. But like the

district court, the Hernandez-Lara court disregards more than a century of case law

providing that aliens are not subject to the same due-process protections as ordinary

citizens. And the Ninth Circuit’s Hernandez v. Sessions decision,

, 990–91

(9th Cir. 2017), which concluded that due process required immigration judges in § 1226(a)

bond hearings to consider a detainee’s financial circumstances as well as possible

alternative release conditions, suffers from the same flaws. In equating the due-process

rights of aliens with that of citizens, it relied upon criminal cases involving citizens, and

Zadvydas, which the Supreme Court, as we have already discussed, cabined to the context

where a statute would “permit[] indefinite detention of an alien.”

(emphasis

added). Further, like the district court here, the Ninth Circuit brushed aside the significant

process provided by the current procedures and the third Mathews factor—the

government’s interest in maintaining its current procedures—when the government has a

43 significant interest. See Hernandez,

. Thus, we decline to follow the

First and Ninth Circuits on these issues. Instead, we agree with the Third Circuit’s view of

the burden of proof procedures in § 1226(a). While arguably in dicta, it stated “we perceive

no problem with” the alien bearing the burden of proof under § 1226(a). Borbot v. Warden

Hudson Cnty. Corr. Facility,

(3d Cir. 2018).

IV.

For the reasons outlined above, we vacate the district court’s order granting a

preliminary injunction and issuing class-wide relief. Section 1252(f)(1) strips courts of

jurisdiction to award such relief. Likewise, we vacate the district court’s order granting

Espinoza a preliminary injunction because Supreme Court precedent establishes that the

current procedures used for detention under § 1226(a) satisfy due process. Since the district

court did not address Espinoza’s statutory claim, we remand this case to the district court

for further proceedings consistent with this decision.

VACATED AND REMANDED

44 RICHARDSON, concurring in part, dissenting in part, and concurring in the judgment:

While I largely agree with Judge Quattlebaum’s analysis, I disagree that federal

courts have jurisdiction to review this issue given

(e).

Section 1226(e) deprives federal courts of jurisdiction to review the Attorney

General’s discretionary judgment in applying § 1226: “The Attorney General’s

discretionary judgment regarding the application of this section shall not be subject to

review.” This is clear jurisdiction-stripping language. It precludes any “review.” It is at

least as clear—if not more so—than jurisdiction-stripping language in other contexts.

Compare 8 U.S.C § 1226(e) (“shall not be subject to review.”), with U.S. Const. amend.

XI (“shall not be construed to extend to any suit”), and

(“a foreign state

shall be immune from the jurisdiction of the courts of the United States and of the

States . . . ”). The question then is whether the challenge here is to an exercise of the

Attorney General’s “discretionary judgment.” If so, then this clear jurisdiction-stripping

provision will do what it’s meant to.

So we must consider whether setting bond-hearing procedures is an exercise of the

Attorney General’s discretionary judgment. While the statute itself mentions the use of

“bond[s],” it is silent about how bonds are to be set. Section 1226 provides some detail

about the conditions of the bonds: There is a minimum dollar amount ($1,500), but

otherwise conditions are left up to the Attorney General. § 1226(a)(2)(A). Section 1226

also provides some detail about revoking the bonds: The Attorney General can revoke a

bond “at any time.” § 1226. But again, there is nothing at all about the bond-hearing

45 procedures—nothing but silence. There are strong reasons to believe this silence places

procedural decisions in the Attorney General’s discretion.

Silence on an issue so central to the statutory scheme suggests it is delegated to the

implementing agency’s discretion. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,

Inc.,

(1984). And the Executive is given exceptional leeway in

implementing immigration statutes. Carlson v. Landon,

(1952)

(“Congress can only legislate so far as is reasonable and practicable, and must leave to

executive officers the authority to accomplish its purpose”). Perhaps this is because both

political branches have extraordinary power in the immigration context that predates the

Founding. So while some immigration authority may be delegated from Congress, some

authority is inherent in the Executive branch. See Fong v. United States,

(1893) (“In England, the only question that has ever been made in regard to the power to

expel aliens has been whether it could be exercised by the king without the consent of

parliament. . . . Eminent English judges, sitting in the judicial committee of the privy

council, have gone very far in supporting the exclusion or expulsion, by the executive

authority of a colony, of aliens . . . .”).

And this statute is set against a backdrop of legal authority that says “agencies

should be free to fashion their own rules of procedure.” Perez v. Mortg. Bankers Ass’n,

, 102 (2015) (quoting Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def.

Council, Inc.,

(1978)); cf.

(excepting “rules of agency

organization, procedure, or practice” from the requirements of notice-and-comment

46 rulemaking). Freedom to set procedures is another way of saying discretion to set

procedures.

In sum then, the statute says nothing on this issue; statutory silence is often a grant

of discretion; and here that silence falls on the question of agency procedure, which is

normally left to the discretion of the agency. So choosing the bond procedures is an act of

discretionary judgment by the Attorney General.

And § 1226(e) applies to any exercise of “discretionary judgment” by the Attorney

General about the application of § 1226. The scope of “discretionary judgment” in the first

sentence is not limited by the second sentence’s ban on courts setting aside any “action or

decision”: “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.” § 1226(e). This second sentence bars review of any “action or

decision” by the Attorney General even if it is not a discretionary one. Read together, these

two sentences provide three areas where judicial review “shall not apply” under § 1226:

(1) discretionary judgments, (2) actions, or (3) decisions. See Jennings,

(drawing out these three distinct categories). While those categories may sometime

overlap, they are not two ways of saying the same thing. Not only does this interpretation

reflect the plain language, it also avoids making the first sentence of § 1226(e) surplusage.

See Yates v. United States,

, 540 (2015); Babbitt v. Sweet Home Chapter of

Cmtys. for a Great Ore.,

(1995).

Even though there is significant overlap between these sentences, this isn’t merely

a belt-and-suspenders approach. The Attorney General will sometimes act or make

47 decisions that are not subject to his discretionary judgment, such as mandatory detention

actions under § 1226(c). And as is the case here, the Attorney General can apply his

discretionary judgment to issues that are not “action[s] or decision[s] . . . regarding the

detention or release of any [particular] alien.” The two sentences in § 1226(e) thus preclude

judicial review of two meaningfully different categories of agency action and should be

read separately. And, because the Attorney General’s judgment about the procedures for

bond hearings falls in the discretionary-judgment category, we cannot review it, and neither

can the district court.

It is true that Demore v. Kim and related cases teach that § 1226(e) “does not

preclude challenges to the statutory framework.” Maj. Op. at 15 (quoting

(2003); see also Dis. Op. at 56 n.1 (agreeing § 1226(e) does not deprive us of

jurisdiction). But, as the majority recognizes, this is not a challenge to the statutory

framework. And Demore’s holding does not mean that § 1226(e) fails to preclude

constitutional challenges to the Attorney General’s authority under § 1226(a) just because

the challenge is to a “categorical” and “across-the-board” discretionary decision. Maj. Op.

at 16.

Demore and related cases deal with § 1226(c), which addresses mandatory detention

prescribed by the statute. 1 So challenges to that § 1226(c) framework focus on Congress’s

To the extent that the majority relies on specific language from Jennings or Preap, 1

we should note that, besides not addressing the exercise of the Attorney General’s discretionary judgment as here, neither Jennings nor Preap held anything about § 1226(e). Justices Gorsuch and Thomas did not join in Justice Alito’s discussion of § 1226(e), and so there was only a 3-judge plurality addressing the issue. Jennings v. Rodriguez, 138 S. (Continued) 48 judgment. They are “constitutional challenge[s] to the legislation,” i.e., to the statutory

framework, and not to decisions by the executive enforcing that legislation. Demore, 538

U.S. at 516–17 (citing Parra v. Perryman,

(7th Cir. 1999)). In contrast,

this challenge addresses “the Attorney General’s discretionary judgment” about how to

implement the statutory framework, even if that implementation is categorical and across-

the-board. 2 So Demore and related cases do not resolve this case. And so we must follow

the plain words of § 1226(e), which bars review of the Attorney General’s discretionary

judgments and includes no exception for categorical constitutional challenges. As inferior

courts, we derive our “jurisdiction wholly from the authority of Congress,” and that “body

may give, withhold, or restrict such jurisdiction at its discretion, provided it be not extended

beyond the boundaries fixed by the Constitution.” Kline v. Burke Const. Co.,

(1922). And where Congress precludes judicial review we must respect that, even

for Constitutional questions. See Ex parte Kearney,

(1822) (refusing to

correct an alleged Fifth Amendment violation because Congress had not authorized writ of

error review in criminal cases).

Ct. 830, 852 (2018). And the same is true about Nielsen v. Preap,

(2019). But even if there had been a majority opinion, it would be distinguishable on the same grounds as Demore. 2 This disagreement with my colleagues may come back to our disagreement about the separateness of the two sentences of § 1226(e). I concede that the second sentence focuses on particularized actions or decisions because it says, “any action or decision . . . regarding . . . any alien,” which is naturally read to leave out categorical decisions. You might read it as saying “any [individual] action or decision.” But I do not agree that this understanding should be transferred to the previous sentence. “Discretionary judgments regarding the application of this section” will often be made categorically, as here. So I disagree that across-the-board discretionary judgments are beyond the scope of § 1226(e). See Maj. Op. at 16. 49 Because § 1226(e) bars judicial review of any “discretionary judgment”—including

those that apply to all detention decisions under § 1226(a) and those alleged to violate the

Constitution—I disagree with my colleagues and would dismiss for a lack of jurisdiction

on that basis.

That disagreement does not preclude me from joining in striking down the class-

wide injunction under § 1252(f)(1). Section 1252(f)(1), like § 1226(e), presents a

jurisdiction bar, and courts can of course resolve jurisdictional failings in any order. See

Ruhrgas AG v. Marathon Oil Co.,

(1999) (“It is hardly novel for a federal

court to choose among threshold grounds for denying audience to a case on the merits.”).

And I agree that it forecloses the district court’s grant of a class-wide injunction here. So

I join in the portion of the opinion striking down the class-wide injunction on that ground.

But that still leaves the individual relief provided by the district court. On that front,

I find myself in the strange situation in which I alone would dismiss for a lack of

jurisdiction, but my colleagues disagree on the merits issue they together agree on reaching.

So the question becomes: “How then are we to reach a judgment?” Massachusetts v.

E.P.A.,

(D.C. Cir. 2005), rev’d,

(2007) (Sentelle, J.,

dissenting in part and concurring in the judgment). In a situation like this, it is proper to

accept the majority’s jurisdictional ruling and reach the merits to ensure a judgment will

issue. Id. at 61 (Sentelle, J., dissenting in part and concurring in the judgment) (citing

Hamdi v. Rumsfeld,

(2004) (Souter, J., concurring)); see also Preap,

139 S. Ct. at 962–965, 973 (Justices Thomas and Gorsuch did not join in the jurisdictional

threshold inquiry but joined in the ensuing merits section); Bragdon v. Abbott,

624, 656 (1998) (Stevens, J., concurring). So although I disagree with my colleagues about

§ 1226(e)’s jurisdictional bar, I accept their decision on that issue. From there, I join Judge

Quattlebaum in the issuance of a judgment that’s closest to the one I would issue.

* * *

For decades, Congress and the Executive have seen their efforts to enforce

immigration laws stymied by drawn-out judicial proceedings. Finally, they tried to solve

the issue by setting significant limits on our jurisdiction. As courts of limited jurisdiction

which have only the power granted to us by Congress, we must respect these limits. The

district court here failed to do so. And as Judge Quattlebaum notes, it also failed to

recognize the crucial distinction between the constitutional rights afforded to citizens and

the rights afforded to those illegally in our country. While I disagree as to whether

(e) bars review, I concur in the rest of his opinion and—given the unusual disposition

in this case—concur in the judgment.

51 URBANSKI, concurring in part and dissenting in part, and dissenting from the judgment:

I join Parts II.A. and II.B. of the majority opinion, agreeing that the government

waived the exhaustion argument on appeal and that

(e) does not bar review.

I respectfully disagree with the majority opinion’s conclusion in Part II.C. that

(f)(1) deprives the district court of jurisdiction over all of the class-wide

relief sought by plaintiffs. While the Supreme Court has not directly addressed this issue,

the majority opinion concludes that § 1252(f)(1) precludes class-wide injunctive relief. But

plaintiffs also sought class-wide declaratory relief, which was not addressed below,

perhaps because the government failed to raise § 1252(f)(1) at the district court. As such, I

would remand the case to the district court to allow it to address plaintiff’s request for class-

wide declaratory relief, which is not barred by § 1252(f)(1).

I respectfully dissent from Part III of the majority opinion. In my view, the Due

Process Clause of the Fifth Amendment requires the government to bear the burden of

proof in an immigration detention proceeding.

I.

“No one disputes that the Fifth Amendment entitles noncitizens to due process of

law.” Velasco Lopez v. Decker,

(2d Cir. 2020) (citing Reno v. Flores,

(1993); U.S. Const. amend. V (“No person shall be . . . deprived of life,

liberty, or property, without due process of law . . . .”). The Due Process Clause covers

noncitizens, “whether their presence here is lawful, unlawful, temporary, or permanent.”

Zadvydas v. Davis,

(2001). “Even one whose presence in this country is

unlawful, involuntary, or transitory is entitled to that constitutional protection.” Mathews

52 v. Diaz,

(1976). “It is well established that the Fifth Amendment entitles

aliens to due process of law in deportation proceedings.” Reno v. Flores,

(1993) (citing The Japanese Immigrant Case, 189 U.S, 86, 100–01 (1903)). “At the same

time, however, [the] Court has recognized detention during deportation proceedings as a

constitutionally valid aspect of the deportation process. As we said more than a century

ago, deportation proceedings ‘would be vain if those accused could not be held in custody

pending the inquiry into their true character.’” Demore v. Kim,

(2003)

(quoting Wong Wing v. United States,

(1896)). Noncitizens are entitled

to challenge the legality of their detention through habeas corpus review. Boumediene v.

Bush,

(2008).

Each of the three plaintiff noncitizens were detained in Immigration and Customs

Enforcement (“ICE”) custody in Baltimore at the time suit was filed. Marvin Dubon

Miranda, of El Salvador, had been in the United States for over ten years prior to his

detention. Dubon Miranda was taken into ICE custody on December 12, 2019, and was

represented by counsel at his bond hearing before an Immigration Judge (“IJ”) on February

26, 2020. Bond was denied as the IJ found that he failed to prove he was not a danger to

the community. Dubon Miranda was released from ICE custody on May 18, 2020, when

his application for withholding of removal and protection under the Convention Against

Torture was granted. Ajibade Thompson Adegoke, of Nigeria, was taken into ICE custody

on November 18, 2019, after state theft charges against him were dropped. Thompson

appeared pro se at a videoconferenced bond hearing but did not know what was expected

of him. “The IJ did not ask him what his financial situation was, nor did she ask Mr.

53 Thompson to tell the court why he was neither a danger nor a flight risk.” Dubon Miranda

v. Barr,

(D. Md. 2020). Bond was set at $15,000, an amount

Thompson was unable to pay. On May 7, 2020, Thompson’s asylum application was

granted, and he was released. Jose de la Cruz Espinoza, of Mexico, was taken into ICE

custody after being released on bond on state assault charges. Although Espinoza was

represented by counsel at his February 19, 2020, bond hearing, the complaint alleges that

his “bond hearing lasted approximately five to ten minutes, he did not know it was his

burden to prove that he is not a danger to the community nor a flight risk, and he had trouble

understanding what was happening due to a language barrier.”

Espinoza, in ICE custody

at the time of the district court’s ruling, was later released on bond.

The statute governing the arrest and detention of noncitizens pending a decision on

removal,

(a), provides the Attorney General with authority to detain or

release an alien on bond. “Congress has given the Attorney General broad discretion to

determine whether, and on what terms, an alien arrested on suspicion of being deportable

should be released pending the deportation hearing.” Reno v. Flores, 507 U.S. at 294–95.

Federal regulations provide the arresting ICE officer with discretion to release an alien,

“provided that the alien must demonstrate to the satisfaction of the officer that such release

would not pose a danger to property or persons, and that the alien is likely to appear for

any future proceeding.”

(c)(8). After an initial custody determination has

been made, the alien may “request amelioration of the conditions under which he or she

may be released” by an immigration judge.

at § 1236.1(d)(1). Thereafter, an appeal

54 relating to bond and custody determinations may be filed with the Board of Immigration

Appeals (“BIA”). Id. at § 1236.1(d)(3).

Formerly, the BIA took the position that “[a]n alien generally . . . should not be

detained or required to post bond except on a finding that he is a threat to the national

security. . . or that he is a poor bail risk.” Reno v. Flores,

(quoting Matter

of Patel,

(1976)). In 1996, Congress amended the Immigration

and Nationality Act (“INA”) by passing the Illegal Immigration Reform and Immigrant

Responsibility Act (“IIRIRA”). “IIRIRA expanded a carve-out in the INA that mandated

detention during removal proceedings for ‘criminal aliens’ with certain triggering

convictions” under § 1226(c). Velasco Lopez,

. With the exception of

increasing the minimum bond amount, “Congress left untouched the general detention

provision at issue here,

(a).”

Following the enactment of IIRIRA, the Immigration and Naturalization Service (“INS”), not Congress, implemented new regulations that altered the standard for the initial post-arrest custody determination made by INS officials.

(c)(2)–(8). The new regulations established a presumption of detention and placed on the arrested individual the burden of demonstrating, to the satisfaction of the arresting officer, that release would not pose a danger to property or persons and that the individual is likely to appear for any future proceedings. See

(c)(2)–(8). The regulation applies only to the initial custody determination made by the arresting officer and not to immigration judges in bond hearings. However, shortly after the new regulations were implemented, the BIA began applying the rule provided in § 236.1(c)(8) for arresting officers, including the presumption of detention, to bond hearings conducted by immigration judges under § 1226(a). Matter of Adenji,

; Matter of Guerra,

.

55 Id. at 849. Thus, while both the statute and regulations are silent as to whether the

government or the detained alien bears the burden of proof at a bond hearing before an

immigration judge, BIA requires that the alien “show to the satisfaction of the Immigration

Judge that he or she merits release on bond.” In re Guerra,

(B.I.A.

2006). The issue in this case is whether placing that burden on the noncitizen satisfies due

process. 1

The stakes at issue here are high. Detention is essentially incarceration, but the

noncitizens have far fewer procedural protections than those afforded citizens accused of

crimes. Noncitizens have no right to court-appointed counsel, no Speedy Trial Act rights,

and no regular right to judicial review of their incarceration. As such, they face

“significantly greater obstacles to acquiring evidence than an indicted or convicted criminal

defendant. In addition, because the BIA placed on [noncitizens] the burden of justifying

1

(e) states 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 Jennings v. Rodriguez,

(2018), the Court made clear that § 1226(e) does not preclude challenges to “the extent of the Government’s detention authority under the ‘statutory framework’ as a whole.” Accord Nielsen v. Preap,

(2019). Nor does it “limit habeas jurisdiction over constitutional claims or questions of law.” Singh v. Holder,

(9th Cir. 2011); see Demore,

(“Section 1226(e) contains no explicit provision barring habeas review.”). “[C]laims that the discretionary process itself was constitutionally flawed are cognizable in federal court on habeas because they fit comfortably within the scope of § 2241.” Singh v. Holder,

(9th Cir. 2011) (quoting Gutierrez-Chavez v. INS,

(9th Cir. 2002)). Whether noncitizens receive due process “is not a matter of discretion” and is subject to judicial review. Zadvydas,

. 56 [their] release, there was a considerable risk of error in the BIA’s findings.” Velasco Lopez,

.

The government argues that § 1226(a) was enacted because “many deportable aliens

are not removed from the United States [because of] the inability of the INS to detain such

aliens through the course of their deportation proceedings.” H.R. Rep. 104-469(I), at 123

(1996). The government contends that § 1226(a) already has built in due process

safeguards by its allowance of an individualized bond hearing, permittance of an

administrative review, and opportunity to request a second bond hearing if there is a

material change in the noncitizen’s circumstances.

II.

The Supreme Court has issued a series of decisions addressing due process

challenges to various aspects of detention pending removal proceedings. But each of these

cases are distinguishable and collectively they fail to provide constitutional support for the

executive branch’s decision to place the burden on the noncitizen at an immigration

detention hearing.

In Jennings v. Rodriguez, the Court disagreed with the Ninth Circuit’s conclusion

that § 1226(a) required the Attorney General to hold bond hearings for detained aliens

every six months at which the government was required to establish the need for continued

detention by clear and convincing evidence. The Court concluded that “[n]othing in

§ 1226(a)’s text . . . even remotely supports the imposition of either of those

requirements.”

. Importantly, however, the Court in Jennings was not

faced with the constitutional question presented here, and only addressed whether the text

57 of § 1226(a) imposed those requirements. The Court remanded the case to the Ninth Circuit

for consideration of the constitutional question. “Thus, while the Supreme Court held that

§ 1226(a) does not mandate that a clear and convincing evidence burden be placed on the

government in bond hearings, it left open the question of whether the Due Process Clause

does.” Darko v. Sessions,

, 434–35 (S.D.N.Y. 2018). See Aleman

Gonzalez v. Barr,

, 781 (9th Cir. 2020) (“Jennings’s rejection of layering such

a burden onto § 1226(a) as a matter of statutory construction cannot undercut . . . our

constitutional due process holding in Singh [v. Holder].”) (emphasis in original).

In Zadvydas v. Davis, the Court held that due process imposed a reasonable time

limitation on detention of aliens detained beyond the 90-day statutory removal period. “In

our view, the statute, read in light of the Constitution’s demands, limits an alien’s

post-removal-period detention to a period reasonably necessary to bring about that alien’s

removal from the United States. It does not permit indefinite detention.”

.

Notwithstanding the government’s plenary power in the area of immigration, the Court

noted “that power is subject to important constitutional limitations.”

.

In Demore v. Kim, the Court upheld the mandatory detention of aliens convicted of

certain crimes, such as aggravated felonies, under

(c). Demore, a lawful

permanent resident, challenged his mandatory detention pending removal proceedings on

due process grounds, arguing that government had not provided a justification for holding

him without bail sufficient to overcome his liberty interest. In upholding mandatory

detention for aliens who had been convicted of certain categories of crimes, the Court

disagreed, noting “Congress adopted this provision against a backdrop of wholesale failure

58 by the INS to deal with increasing rates of criminal activity by aliens.”

.

The Court cited evidence presented to Congress that “one of the major causes of the INS’

failure to remove deportable criminal aliens was the agency’s failure to detain those aliens

during their deportation proceedings.”

. “[I]n adopting § 1226(c), Congress had

before it evidence suggesting that permitting discretionary release of aliens pending their

removal hearings would lead to large numbers of deportable criminal aliens skipping their

hearings and remaining at large in the United States unlawfully.” Id. at 528. The holding

in Demore, focused as it was on the rationale for mandatory detention of criminal aliens

under § 1226(c), has no application to due process considerations attendant to routine

detention decisions under § 1226(a). In Hernandez-Lara v. Lyons,

, 36 (1st Cir.

2021), the First Circuit likewise distinguished Demore, concluding “[t]he circumstances

here are quite different. Unlike section 1226(c), section 1226(a) applies to a wide swath of

noncitizens, many of whom . . . have no criminal record at all.”).

In Carlson v. Landon,

(1952), the Court upheld the Attorney

General’s authority to detain alien communists pending removal proceedings without bail.

The Court noted the role played by due process in the detention decision.

Deportation is not a criminal proceeding and has never been held to be punishment. No jury sits. No judicial review is guaranteed by the Constitution. Since deportation is a particularly drastic remedy where aliens have become absorbed into our community life, congress has been careful to provide for full hearing by the Immigration and Naturalization Service before deportation. Such legislative provision requires that those charged with that responsibility exercise it in a manner consistent with due process.

59

at 537–38. The Court noted that “Congress had before it evidence of resident aliens’

leadership in communist domestic activities sufficient to furnish reasonable ground for

action against alien resident Communists.”

. As such, the Court concluded that

“[t]here is no denial of the due process of the Fifth Amendment under circumstances where

there is reasonable apprehension of hurt from aliens charged with a philosophy of violence

against this Government.”

. As in Demore, the Court in Carlson made specific

findings as to the dangerousness of a class of noncitizens, and those findings were found

to have justified the detention of noncitizens even in the absence of individualized

determinations as to danger and flight risk. “But for the same reasons that Demore is a poor

analog to this case, so too is Carlson: no similar findings regarding dangerousness or flight

risk have been made as to the class of noncitizens detained under section 1226(a).”

Hernandez-Lara, 10 F.4th at 36.

Nor is Reno v. Flores dispositive. Reno v. Flores concerned a procedural due

process challenge to a regulation that denied bail to noncitizen minors who could not be

released into the custody of a parent, adult relative or legal guardian. In that case, the parties

agreed that INS “must assure itself that someone will care for those minors pending

resolution of their deportation proceedings.”

. The Court grounded its

analysis on the juvenile status of the aliens at issue, noting that “juveniles, unlike adults,

are always in some form of custody.”

at 302–03. The Court reasoned: “Where a juvenile

has no available parent, close relative, or legal guardian, where the government does not

intend to punish the child, and where the conditions of governmental custody are decent

and humane, such custody surely does not violate the Constitution.”

. The Court

60 rejected the facial procedural due process challenge, stating that “due process is satisfied

by giving the detained alien juveniles the right to a hearing before an immigration judge.”

. The government seizes on this statement, arguing that because every noncitizen

detained under § 1226(a) may request a bond hearing, due process is satisfied. In the

context of § 1226(a), I do not believe that due process is satisfied in such a de minimis

fashion. As the First Circuit noted in Hernandez-Lara,

The Court’s statement, however, was simply a response to the lower courts’ holding that the agency’s “procedures are faulty because they do not provide for automatic review by an immigration judge of the initial deportability and custody determinations.” Moreover, the hearings in Flores were governed by Matter of Patel, under which the government bore the burden of providing danger and flight risk.

10 F.4th at 37 (internal citations omitted).

In sum, these Supreme Court decisions do not compel the conclusion that placing

the burden of proof on noncitizens in immigration detention hearings comports with due

process. Rather, as the First Circuit held in Hernandez-Lara, and the majority opinion

recognizes, the “inquiry is guided by the three-part balancing test articulated in Mathews

v. Eldridge.” Id. at 27 (citing

(1976)).

III.

I disagree with the majority’s conclusion that placing the burden of proof on the

noncitizen at § 1226(a) bond hearings meets the requirements of Mathews v. Eldridge. In

Mathews, the Supreme Court stated that the “fundamental requirement of due process is

the opportunity to be heard at a meaningful time and in a meaningful manner.” Id. at 333

(internal quotation omitted). Due process “is flexible and calls for such procedural

61 protections as the particular situation demands.” Id. at 334 (quoting Morrissey v. Brewer,

(1972)). As such, to determine whether due process has been afforded

in a particular situation, courts usually assess three factors: (1) “the private interest that will

be affected by the official action;” (2) “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 (3) “the Government’s interest, including the function

involved and the fiscal and administrative burdens that the additional or substitute

procedural requirements would entail.” Id. at 335.

First, as to the privacy interest at stake, freedom from imprisonment and physical

restraint “lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas,

. Deportation is a “drastic measure, often amounting to lifelong banishment

or exile[.]” Sessions v. Dimaya,

(2018) (internal quotations omitted);

see Bridges v. Wixon,

(1945) (“[D]eportation may result in the loss ‘of

all that makes life worth living.’”). The Supreme Court has repeatedly affirmed that “[i]n

our society liberty is the norm, and detention prior to trial or without trial is the carefully

limited exception.” United States v. Salerno,

(1987). For this reason,

“civil commitment for any purpose constitutes a significant deprivation of liberty that

requires due process protection.” Addington v. Texas,

(1979). Here, the

deprivation suffered is ICE detention, which houses detainees in the same or similar

conditions as criminal prisoners. JA 137, 179–80, 191–92. Moreover, detainees have a

significant interest in preparing their defense against removal, and this becomes almost

impossible to do under detention because of the inability to secure legal assistance or gather

62 evidence. Katherine Perino Decl., JA 082–83 (“Being unable to leave detention and find a

lawyer is almost a guarantee you will be deported.”). As such, the first factor cuts sharply

in favor of respondents.

Second, as to the erroneous deprivation, the government argues that § 1226(a)

provides sufficient safeguards to prevent the erroneous deprivation of a liberty interest.

Upon review, I simply cannot agree that these procedures provide adequate safeguards.

Although the Velasco Lopez court declined to “establish a bright-line rule for when due

process entitles an individual detained under § 1226(a) to a new bond hearing with a shifted

burden,” Velasco Lopez,

n.13, the court acknowledged that § 1226(a)

implicates a fundamental liberty right and putting the burden of proof on an alien created

an impermissible risk of error. Id. at 851–53.

There are several reasons why placing the burden of proof on the noncitizen

increases the likelihood of erroneous deprivation. First, those facing removal have no right

to counsel “and very often cannot obtain counsel on their own, particularly if they are

detained.” Hernandez-Lara, 10 F.4th at 30. Second, “detained individuals will likely

experience difficulty in gathering evidence on their own behalf.” Id. Former IJ Slavin

Decl., JA 095–96; Katherine Perino Decl., JA 080–81; see Moncrieffe v. Holder,

(2013) (stating that detained aliens “have little ability to collect evidence”). Third,

noncitizens facing removal often face a language barrier. Fourth, by definition,

immigration authorities have a better grasp on immigration law and procedures than

detained noncitizens. Fifth, proving the negative as to danger and risk of flight can be

difficult. See Elkins v. United States,

(1960) (“[A]s a practical matter it

63 is never easy to prove a negative.”). “For all of these reasons, a detainee often starts out

behind the eight ball in a bond proceeding, and the opportunities for prejudicial error

abound.” Hernandez-Lara, 10 F.4th at 31. Moreover, “as the period of . . . confinement

grows,” so do the required procedural protections no matter what level of due process may

have been sufficient at the moment of initial detention. Zadvydas,

.

Furthermore, I agree with the district court’s conclusion that “erroneous

deprivations of liberty are less likely when the government, rather than the noncitizen,

bears the burden of proof.” Dubon Miranda, 463 F. Supp. 3d at 646. Importantly, “the

government, by and large, has access to greater resources and legal expertise,” and is,

therefore, usually in a better position to “access [immigration and criminal] records” as

opposed to the alien. Former IJ Slavin Decl., JA 096; see Velasco Lopez,

(detailing that the government often has access to “numerous databases[,] . . . to

information collected by DHS, DOJ, and the FBI, [and to] information in the hands of state

and local authorities”); J.G. v. Warden, Irwin Cnty. Det. Ctr.,

, 1337

(M.D. Ga. 2020) (“The Government is not required to present a shred of evidence, yet it

has substantial resources available.”). By placing the burden of proof on the government,

this safeguard helps balance the fact that aliens seeking release have no right to counsel,

speedy trial, or cross-examination. Because “[t]he probable value . . . of [this] additional

or substitute procedural safeguard[]” is significant, the second factor weighs heavily in

respondents’ favor. Mathews,

.

As to the third Mathews’ factor, the importance of the government’s interest in

ensuring that noncitizens do not abscond and commit crimes is well-established and

64 legitimate. Velasco Lopez,

. “The government has legitimate interests in

protecting the public and in ensuring that noncitizens in removal proceedings appear for

hearings, but any detention must ‘bear[ ] [a] reasonable relation to [its] purpose.’”

Hernandez v. Sessions,

(9th Cir. 2017) (alterations in original) (quoting

Zadvydas,

).

However, the Government has not articulated an interest in the prolonged detention of noncitizens who are neither dangerous nor a risk of flight. On the contrary, shifting the burden of proof to the Government to justify continued detention promotes the Government’s interest―one we believe to be paramount―in minimizing the enormous impact of incarceration in cases where it serves no purpose. . . . When the Government incarcerates individuals it cannot show to be a poor bail risk for prolonged periods of time, as in this case, it separates families and removes from the community breadwinners, caregivers, parents, siblings and employees. The Government articulates no public interest that any of this serves and we see none.

Velasco Lopez, 978 F.3d at 854–55. Requiring the government to bear the burden of proof

at initial detention and bond hearings does not impede the government’s legitimate interest.

In fact, it is in the government’s interest to limit the unnecessary detention of aliens deemed

not to be a danger or flight risk, which would aid the government. See Michelle Mendez

Decl., JA 092; Former IJ Slavin Decl., JA 096. “In short, given the risk that the current

procedures lead to many instances of needless detention, entailing substantial social and

financial costs, the public interest in placing the burden of proof on the detainee is uncertain

at best, and may well be negative.” Hernandez-Lara, 10 F.4th at 33.

In my view, the Mathews factors squarely support placing the burden of proof on

the government to prove the noncitizen is a danger or risk of flight.

65 IV.

Other circuit courts have raised due process concerns with placing the burden of

proof on noncitizens at immigration detention hearings. In Hernandez-Lara, 10 F.4th at

39, the First Circuit held that “the government must bear the burden of proving

dangerousness or flight risk in order to continue detaining a noncitizen under section

1226(a).” Consistently, the Ninth Circuit has held that, given the substantial liberty interest

at stake, noncitizens facing prolonged detention while review of their petitions for review

of removal orders are pending are entitled to a bond hearing at which the government bears

the burden of proving danger or flight risk, Casas-Castrillon v. Dept. of Homeland Sec.,

(9th Cir. 2008), by clear and convincing evidence. Singh v. Holder,

. See also German Santos v. Warden Pike Cty. Corr. Facility,

,

214 (3d Cir. 2020) (holding that noncitizens detained for prolonged periods under the

mandatory provisions of § 1226(c) are constitutionally entitled to a bond hearing at which

the government “bears the burden of persuasion by clear and convincing evidence. That

evidence must be individualized and support a finding that continued detention is needed

to prevent him from fleeing or harming the community”). 2

2 The Third Circuit’s decision in German Santos followed earlier ones in immigration bond cases in Diop v. ICE/Homeland Sec.,

(3d Cir. 2011), and Borbot v. Warden Hudson Cty. Corr. Facility,

(3d Cir. 2018). Unlike German Santos and Diop, which arose following prolonged mandatory detention under § 1226(c), Borbot filed a petition under

, seeking habeas review of his continued detention following his initial hearing under § 1226(a). Unlike the respondents here, Borbot did not argue that he was denied due process in his initial hearing. As such, the Third Circuit’s finding that due process did not require that Borbot receive a second bond hearing has no bearing on the present case. 66 In Velasco Lopez v. Decker,

(2d Cir. 2020), the Second Circuit found

detention of a noncitizen under 1226(a) for 15 months to violate due process and ordered

a new bond hearing at which the government bore the burden of proving danger or risk of

flight by clear and convincing evidence. “While the Government’s interest may have

initially outweighed short-term deprivation of Velasco Lopez’s liberty interests, that

balance shifted once his imprisonment became unduly prolonged. We conclude that

Velasco Lopez’s prolonged incarceration, which had continued for fifteen months without

an end in sight or a determination that he was a danger or flight risk, violated due process.”

.

Consistent with these circuit court decisions, in a growing chorus of decisions,

district courts from around the country have held that due process requires the government

to bear the burden of proving danger or flight risk at a § 1226(a) immigration bond hearing.

See, e.g., Pensamiento v. McDonald,

(D. Mass. 2018) (“[T]he

Constitution requires placing the burden of proof on the government in § 1226(a) custody

redetermination hearings. Requiring a non-criminal alien to prove that he is not dangerous

and not a flight risk at a bond hearing violates the Due Process Clause.”); Darko v. Sessions,

(“Since Jennings, a number of district courts have taken up the

question left open by the Supreme Court, and there has emerged a consensus view that

where, as here, the government seeks to detain an alien pending removal proceedings, it

bears the burden of proving that such detention is justified.”); J.G. v. Warden, Irwin Cnty.

Det. Ctr., 501 F. Supp. 3d at 1335 (“This Court joins the Ninth and Second Circuits as well

as the overwhelming majority of district courts that hold the Government must bear the

67 burden of proof to justify a noncitizen’s detention pending removal proceedings.”) (internal

quotation omitted); Cruz-Zavala v. Barr,

, 576 (N.D. Cal. 2020) (“[A]t

a § 1226(a) bond hearing, 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.”)

(internal quotation omitted); Vargas v. Wolf, No. 2:19-cv-02135-KJD-DJA,

, at *7 (D. Nev. Apr. 21, 2020) (“In sum, the Fifth Amendment’s Due Process

Clause requires the government to prove a detainee’s flight risk or dangerousness, by clear

and convincing evidence, to justify continued detention.”); Diaz-Ceja v. McAleenan, No.

19-cv-00824-NYW,

, at *7 (D. Colo. July 2, 2019) (“Requiring a non-

criminal alien to prove that he is not dangerous and not a flight risk at a bond hearing

violates the Due Process Clause. The clear weight of authority from courts to have

considered the question after the Jennings Court’s deferral and remand of the constitutional

question have come to the same conclusion.”) (internal citation omitted); Al-Sadeai v.

USCIS,

, 991 (S.D. Cal. 2021) (“[N]oncitizens still face such a

significant possible deprivation of liberty at the time of their initial bond hearing under

Section 1226(a) that the Due Process Clause requires the burden of proof to justify

detention to be placed on the Government . . . .”); Onosamba-Ohindo v. Barr,

, 184 (W.D.N.Y. 2020) (“Due Process requires the burden of proof to be on the

government at a bond hearing involving an individual detained under § 1226(a).”) But see

Lopez v. Barr,

, 176–79 (W.D.N.Y. 2020) (“On balance, the Court

concludes that Lopez’s bond hearing satisfied the fundamental requirement of due

process―namely, that he had the opportunity to be heard at a meaningful time and in a

68 meaningful manner.”) (internal quotations omitted). See also Portillo v. Hott,

, 702–10 (E.D. Va. 2018) (applying Demore and Zadvydas, the Eastern District of

Virginia found the flexible nature of due process protections required an individualized

bond hearing for a noncitizen detained for a prolonged period under § 1226(c) at which the

government bore the burden of proof by clear and convincing evidence).

In my view, placing the burden of proof on aliens during § 1226(a) detention

proceedings violates the Due Process Clause. Joining our sister circuits, I would find that

in order to justify a detainee’s detention, the government bears the burden of proof during

§ 1226(a) proceedings. Specifically, consistent with the Bail Reform Act, I would find that

the government must show either that a detainee is a danger to the community by clear and

convincing evidence or a flight risk by a preponderance of the evidence. Hernandez-Lara,

10 F.4th at 39–41. See Velasco Lopez,

(“We believe that it is improper to

allocate the risk of error evenly between the individual and the Government when the

potential injury is as significant as the individual’s liberty. Accordingly, we conclude that

a clear and convincing evidence standard of proof provides the appropriate level of

procedural protection.”).

The district court also concluded that due process requires the government to

consider financial circumstances and alternative release considerations. I agree. “Due

process requires that the nature of commitment bear some reasonable relation to the

purpose for which the individual is committed.” Foucha v. Louisiana,

(1992). As the Ninth Circuit held in Hernandez v. Sessions,

, “[a] bond

determination process that does not include consideration of financial circumstances and

69 alternative release conditions is unlikely to result in a bond amount that is reasonably

related to the government’s legitimate interests.”

V.

The majority concludes that class-wide injunctive relief is barred by

(f)(1). Titled “[l]imit on injunctive relief,” § 1252(f)(1) provides:

Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of [8 U.S.C. §§ 1221–32], . . . other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.

“By its plain terms, and even by its title, that provision is nothing more or less than a limit

on injunctive relief. It prohibits federal courts from granting classwide injunctive relief

against the operation of §§ 1221–1231, but specifies that this ban does not extend to

individual cases.” Reno v. Am.-Arab Anti-Discrimination Comm.,

, 481–82

(1999).

There is a circuit split as to whether class-wide injunctive relief is barred by

§ 1252(f)(1). The First, Third, Sixth and Tenth Circuits have held that § 1252(f)(1) bars

class-wide injunctive relief. Brito v. Garland,

, 249–50 (1st Cir. 2021); Gayle

v. Monmouth Cty. Corr. Inst.,

, 336 (3d Cir. 2021); Hamama v. Adducci,

(6th Cir. 2018); Van Dinh v. Reno,

(10th Cir. 1999). The

District of Columbia and Ninth Circuit have read § 1252(f)(1)’s prohibition more

narrowly―applying only to the “operation of the [statutory] provisions” themselves―and

placing no restriction on the district court’s authority to enjoin agency action found to

70 violate the Constitution. Grace v. Barr,

, 907 (D.C. Cir. 2020); Padilla v.

Immigr. & Customs Enf’t,

, 1151 (9th Cir. 2020), vacated on other grounds

by Immigr. & Customs Enf’t v. Padilla,

(2021).

The Supreme Court has not decided this issue. In Jennings, the Court directed that

“the Court of Appeals should consider on remand whether it may issue classwide injunctive

relief based on respondents’ constitutional claims.” 138 S. Ct. at 851. Plainly, the Jennings

majority did not consider the issue to be decided. A year later, in Nielson v. Preap,

, the Court again sidestepped the question of class-wide injunctive relief under

§ 1252(f)(1), stating that “we need not decide” whether the district court overstepped the

bounds of § 1252(f)(1) when it “grant[ed] injunctive relief for a class of aliens that includes

some who have not yet faced―but merely ‘will face’―mandatory detention.” As Judge

Lipez stated in partial dissent in Brito v. Garland, 22 F.4th at 258, “[i]n the face of this

history, I do not see how we can treat the issue of whether § 1252(f)(1) bars class-wide

injunctive relief for individualized constitutional claims as having been resolved by the

Supreme Court.”

In any event, § 1252(f)(1) makes no mention of declaratory relief, and even courts

that have found it to bar class-wide injunctive relief have held that it does not bar class-

wide declaratory relief. Brito v. Garland, 22 F.4th at 252 (“[W]e conclude that declaratory

relief remains available under § 1252(f)(1).”). In Nielsen v. Preap,

, Justice

Alito, joined by the Chief Justice and Justice Kavanaugh, wrote that “[w]hether the Preap

court had jurisdiction to enter such an injunction is irrelevant because the District Court

had jurisdiction to entertain the plaintiffs’ request for declaratory relief.”

71 While the plaintiffs sought declaratory relief in this case, 3 it does not appear that the

district court granted declaratory relief, instead fashioning its remedy in terms of a

preliminary injunction. The court concluded: “Based on the court’s finding that significant

constitutional rights are at stake, and the risk of irreparable harm, the court will issue a

class-wide preliminary injunction mandating that § 1226(a) bond hearings implement

procedures that adequately protect the due process rights of citizens.” 463 F. Supp. 3d at

652.

The district court opinion does not address § 1252(f)(1), perhaps because, as

respondents assert, the government did not raise the issue below. As such, respondents

assert that the government has waived this argument on appeal. The government argues

that § 1252(f)(1) is a jurisdictional bar, and as such cannot be waived. Regardless, the issue

was not addressed in the district court, and the court was not asked to parse the issue of

declaratory versus injunctive relief. At the very least, the matter should be remanded to the

district court to address the government’s argument first raised on appeal that § 1252(f)(1)

bars class-wide injunctive relief and to determine whether, in light of that argument, class-

wide declaratory relief should issue. Justice Breyer made this point clear in his dissent in

Jennings.

At a minimum I can find nothing in the statute or in the cases to which the majority refers that would prevent the respondents from pursuing their action, obtaining a declaratory judgment, and then using that judgment to obtain relief, namely, a bail hearing, in an individual case. Thus, I believe the lower courts

3 The district court noted that “[t]he lead plaintiffs seek class certification, declaratory relief, and an order that each member of the class be released unless provided with a new bond hearing.” Dubon Miranda, 463 F. Supp. 3d at 640. 72 are free to consider the constitutionality of the relevant statutory provisions as the majority now interprets them.

138 S. Ct. at 876 (Breyer. J., dissenting).

On balance, given the government’s failure to raise § 1252(f)(1) at the district court,

I would remand the case to allow the district court to consider the application of that statute

and whether class-wide declaratory relief is appropriate.

VI.

While I am mindful of the executive’s vast authority over immigration, it must still

comport with constitutional safeguards. With this balancing in mind, requiring a detained

noncitizen to prove he is not a danger to the community or risk of flight is

unconstitutionally onerous on an already vulnerable group of defendants and violates due

process. In sum, I respectfully dissent and would affirm the district court’s conclusion that

the Due Process Clause requires the government to bear the burden of proof at § 1226(a)

detention hearings and remand the case to the district court for consideration of

§ 1252(f)(1) and the availability of class-wide declaratory relief.

73