By Krista Doherty
On July 2, 2019, Federal District Judge Marsha Pechman of the Western District of Washington at Seattle affirmed a preliminary injunction granted in April and modified the injunction “to find that the statutory prohibition at Immigration and Nationality Act § 235(b)(1)(B)(ii) against releasing on bond persons found to have a credible fear of persecution if returned to their country and awaiting a determination of their asylum application violates the U.S. Constitution; the Bond Hearing Class is constitutionally entitled to a bond hearing (under the conditions enumerated above) pending resolution of their asylum applications” (Opinion 2: 14-19).
On April 5, 2019, the court granted a preliminary injunction which mandated the Executive Office for Immigration Review to “1. Conduct bond hearings within seven days of a bond hearing request by a class member, and release any class member whose detention time exceeds that limit; 2. Place the burden of proof on Defendant Department of Homeland Security in those bond hearings to demonstrate why the class member should not be released on bond, parole, or other conditions; 3. Record the bond hearing and produce the recording or verbatim transcript of the hearing upon appeal; and 4. Produce a written decision with particularized determinations of individualized findings at the conclusion of the bond hearing” (Opinion 3: 18-24, and 4: 1-7).
The government was supposed to comply with this injunction by May 5. However, on April 16 Attorney General Barr overruled “a 2005 Board of Immigration Appeals (‘BIA’) determination . . . which had been cited in the preliminary injunction order” (Opinion 4: 9-12). According to Attorney General Barr, “aliens classified as ‘entering without inspection’ (‘EWI’) were subject to mandatory detention without bond following a successful credible fear determination.” Furthermore, they “could be released only upon being paroled for ‘urgent humanitarian reasons or significant public benefit” (Opinion 4: 21-23, and 5: 1). The court exercised its “discretionary authority to ‘modify or revoke an injunction as changed circumstances may indicate’” (Opinion 5: 4-5) (citation omitted).
Judge Pechman applied the balancing test in Mathews v. Eldrige, 424 U.S. 319, 335 (1976) and ruled that Plaintiffs proved that they were likely to succeed “on their constitutional challenge to the complete elimination of bond hearings for its members” (Opinion 17: 6-7). The balancing test requires three factors to be evaluated: the private interest of the plaintiff, the risk of erroneous deprivation, and the Government’s interest (Opinion 12: 17-20). First, “[t]he Court finds that Plaintiffs have established a constitutionally-protected interest in their liberty, a right to due process which includes a hearing before a neutral decisionmaker to assess the necessity of their detention, and a likelihood of success on the merits of that issue” (Opinion 14: 15-17). Second, “[t]here is a significant risk that the individual will be needlessly deprived of the fundamental right to liberty” (Opinion 16: 2-3) (citation omitted). Third, the government lacks “legitimate interest in detaining individuals who have been determined not to be a danger to the community and whose appearance at future immigration proceedings can be reasonably ensured…” (Opinion 16: 19-21) (citation omitted). The court further ruled that “any deprivation of constitutional rights ‘unquestionably constitutes irreparable injury’” and the public interest and balance of equities favor Plaintiffs (Opinion 17: 9-10) (citation omitted).
Judge Pechman also said she anticipated that the government would appeal this decision (Opinion 19: 14).