Background
The plaintiffs are a certified class of asylum seekers who entered the United States without admission or parole, were placed in expedited-removal screening, and received positive credible-fear determinations. They were then transferred to regular removal proceedings. Because 8 U.S.C. § 1225(b)(1)(B)(ii), as interpreted in Jennings v. Rodriguez, mandates their detention while their asylum applications are considered, they have no statutory right to an individualized bond hearing.
The class alleged that detention without a prompt hearing at which the government must justify continued custody violates the Fifth Amendment’s Due Process Clause. After earlier preliminary-injunction proceedings and a Supreme Court remand for consideration of Department of Homeland Security v. Thuraissigiam, the plaintiffs sought declaratory relief. The district court denied the government’s motion to dismiss and certified for interlocutory appeal whether it had subject-matter jurisdiction and whether Thuraissigiam barred the due process claim.
The Court’s Holding
The Ninth Circuit affirmed the denial of the motion to dismiss on the certified issues. It held that none of the jurisdictional bars in 8 U.S.C. § 1252(a)(2)(A) applied because the class was not challenging an individual removal determination, the application of expedited-removal procedures to particular noncitizens, or an agency policy implementing those procedures. Instead, it challenged the constitutionality of the mandatory-detention statute itself. Section 1252(e)(3) also did not eliminate jurisdiction because it operates as an exception preserving jurisdiction over certain claims otherwise barred by § 1252(a)(2)(A), not as an independent jurisdictional restriction.
The panel also held that Thuraissigiam did not foreclose the class’s due process claim. Thuraissigiam concerned a noncitizen apprehended immediately after unlawful entry, only 25 yards from the border, and treated as being at the threshold of initial entry. The certified class, by contrast, broadly includes people apprehended well inside the country and potentially weeks, months, or as long as two years after entry. The court rejected the government’s argument that every noncitizen eligible for expedited removal lacks procedural due process rights beyond those supplied by statute.
The majority further reasoned that Thuraissigiam addressed rights concerning admission, while this case concerns detention and the historically protected liberty interest against arbitrary confinement. The court did not decide what process class members ultimately must receive or whether the challenged detention scheme violates due process; those merits questions were outside the certified interlocutory appeal. Judge Friedland joined the opinion except for its admission-versus-detention analysis, concluding that the class’s inclusion of people beyond the threshold of entry was sufficient to resolve the appeal.
Key Takeaways
- Section 1252(a)(2)(A) does not bar a constitutional challenge to § 1225(b)(1)(B)(ii)’s mandatory-detention requirement when the claim does not contest an individual removal decision or an implementing policy.
- Thuraissigiam’s restriction on due process rights applies to noncitizens at the threshold of initial entry, not categorically to everyone who entered unlawfully and later became eligible for expedited removal.
- The ruling permits the class’s bond-hearing claim to proceed but does not establish that class members are constitutionally entitled to bond hearings or prescribe the procedures any hearing must contain.
Why It Matters
The decision rejects a broad reading of Thuraissigiam that would tie constitutional due process protections solely to Congress’s chosen scope for expedited removal. It preserves federal-court review of prolonged mandatory detention for asylum seekers apprehended beyond the immediate border area while leaving the ultimate constitutionality of detention without individualized bond hearings for further district-court proceedings.