U.S. District Judge Marsha J. Pechman said Monday that while the district court remains convinced that it has the authority to hear the case, the jurisdictional issue seemingly hasn't been addressed by the Ninth Circuit or the U.S. Supreme Court. She said the Ninth Circuit may also have a different opinion on whether the asylum-seekers may pursue constitutional due process claims regarding bond hearings.
"While a close question, the court agrees with defendants that both questions present novel legal issues on which fair-mind jurists might reach contradictory conclusions," Judge Pechman said in the Monday order.
She said having the Ninth Circuit look at the two issues now instead of waiting until after the case has concluded would save the parties' and court's resources and avoid unnecessary litigation.
"While the court remains unconvinced that it lacks subject matter jurisdiction or that plaintiffs cannot pursue their due process claims, it agrees with defendants that certification of the interlocutory appeal is proper," Judge Pechman said.
The named plaintiffs — Yolany Padilla, Ibis Guzman, Blanca Orantes and Baltazar Vasquez — sued the U.S. Department of Homeland Security, its immigration agencies and certain officials in 2018, seeking to enforce their right to a bond hearing while waiting for a decision on their asylum applications. They claim that despite applying for asylum and securing bond hearings, they were detained and put into expedited deportation proceedings.
In 2019, Judge Pechman granted them a preliminary injunction requiring the government to provide bond hearings and other due process protections. The injunction, however, made its way up to the U.S. Supreme Court, which vacated it in 2021 via summary disposition and remanded the case to the appeals court in light of the high court's 2020 ruling in U.S. Department of Homeland Security v. Thuraissigiam
. The justices held in that case that a Sri Lankan asylum-seeker facing expedited deportation couldn't challenge his credible fear denial in federal court.The Ninth Circuit then remanded the case to the district with instructions for further consideration in light of the high court ruling. In December, Judge Pechman largely denied the government's renewed request to toss the plaintiffs' claims, ruling that Thuraissigiam didn't bar the plaintiffs from lodging their due process claim.
The government filed its motion to certify for interlocutory appeal in February, again arguing that the Supreme Court's decision in Thuraissigiam reaffirmed a "well-settled principle" that noncitizens like the asylum-seekers "enjoy only those due process protections that Congress has granted them."
Judge Pechman said in her Monday order that while the district court hasn't changed its conclusions as to Thuraissigiam, it "appreciates that this novel and complex issue may well lead to a difference of opinion at the Ninth Circuit."
Judge Pechman's order also comes after the asylum-seekers in January told her — much to her surprise — that they had reached a settlement with the government to dismiss their claim alleging violation of their Fifth Amendment rights to due process, which they based on the agencies' alleged practice of delaying their credible fear interviews.
As a result of the settlement, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement will have seven business days after an individual expresses fear of returning to the country they left to refer them to U.S. Citizenship and Immigration Services for their credible fear interview.
The settlement also puts in place a 60-day deadline for the government to decide on the asylum-seeker's credible fear screening. It also includes $100,000 in legal fees for class counsel.
Counsel for the asylum-seekers declined to comment Tuesday. The U.S. Department of Justice, which represents the government, did not immediately respond to a request for comment.
The plaintiffs are represented by Matt Adams, Leila Kang, Aaron Korthuis and Glenda Aldana Madrid of the Northwest Immigrant Rights Project, Judy Rabinovitz and Anand Balakrishnan of the ACLU Immigrants' Rights Project, Trina Realmuto and Kristin Macleod-Ball of the National Immigration Litigation Alliance and Emma Winger of the American Immigration Council.
The government is represented by Lauren C. Bingham and David Kim of the U.S. Department of Justice.
The case is Padilla et al. v. U.S. Immigration and Customs Enforcement et al., case number 2:18-cv-00928, in the U.S. District Court for the Western District of Washington.
--Additional reporting by Rachel Riley. Editing by Linda Voorhis.