Filed Date: June 25, 2018
Case Ongoing
Clearinghouse coding complete
On June 25, 2018, three plaintiffs filed this class-action lawsuit challenging the federal government's forcible separation of minor children from their parents, as well as its practice of prolonging the separation by failing to conduct credible fear interviews in a timely manner. The plaintiffs sued the Department of Homeland Security, Immigration and Customs Enforcement, Customs and Border Patrol, the Executive Office for Immigration Review, Citizenship and Immigration Services, Health and Human Services, the Office of Refugee Resettlement, and the respective administrators of each agency in their official capacities.
The plaintiffs, mothers of young children, had entered the United States seeking asylum for themselves and their children. In May 2018, the mothers were separated from their minor children (six, five, and eight years old, respectively) and relocated to a detention center in Washington State as part of the federal government’s zero-tolerance policy targeting illegal entry. The plaintiffs challenged the federal government’s forcible separation of minor children from their parents, as well as the practice of prolonging this separation by failing to conduct credible fear interviews in a timely manner. The plaintiffs asserted Fifth Amendment due process claims, as well as violations of asylum statutes and the Administrative Procedure Act. They sought injunctive and declaratory relief. The three women filed the complaint in federal district court in the Western District of Washington on behalf of themselves and other similarly situated parents, and the case was assigned to Judge Marsha Pechman.
The plaintiffs filed an amended complaint on July 15, 2018. The amended complaint acknowledged that the day after the plaintiffs filed their complaint, a federal court in the Southern District of California implemented a nationwide injunction against family separation. While the plaintiffs were not waiving their claim for relief under the earlier filed claims (challenging the zero-tolerance policy as it applied to family separation and credible fear interviews), they planned not to pursue the claims further, pending the governments’ compliance with the nationwide order. The plaintiffs also added a claim against the government’s bond hearings process, challenging the legality of the government’s practice of excessively prolonging the detention of asylum seekers by delaying their bond hearings and failing to establish any timeline for these hearings. On August 22, 2018, the plaintiffs filed a second amended complaint, confirming that they will not pursue the claims that were addressed by the nationwide injunction issued in July.
On July 30, 2018, the plaintiffs filed a motion to certify a class. That motion was amended on September 6, 2018, and defined two proposed classes as follows:
On September 6, 2018, the defendants filed a motion to dismiss. The defendants claimed that the court was not authorized to hear the plaintiffs' claims challenging the timing of credible fear interviews. The defendants also sought dismissal on the grounds that members of the Credible Fear Class had no right to enter the U.S. or to have the determination of their admissibility subject to any procedural safeguards. The defendants further argued that the plaintiffs' claims were not amenable to resolution in a class-action suit and that the APA did not provide a cause of action for certain claims that were made.
On September 20, 2018, the plaintiffs filed a motion for a preliminary injunction. The plaintiffs sought injunctive relief from the court, asking that the court order the EOIR defendants to 1) conduct bond hearings within seven days of a hearing request, 2) place the burden of proof in those hearings on DHS, 3) produce a recording or verbatim transcript of the hearings and 4) produce a contemporaneous written decision with particularized determinations. In the absence of this action, the plaintiffs asserted that they will face irreparable harm in the form of violations of their constitutional rights, prolonged detention, and interference with their ability to pursue their asylum claims.
On December 11, 2018, Judge Marsha Pechman issued an order granting in part and denying in part the defendants' motion to dismiss. Judge Pechman concluded that the court had jurisdiction to hear the suit, that both classes adequately stated a claim for constitutional relief from alleged violations of due process by the defendants, and that the Bond Hearing class succeeded in stating a claim under the APA concerning certain procedural safeguards. Judge Pechman granted the motion in part, resulting in the dismissal of the Credible Fear Interview class' APA claim and the Bond Hearing class' APA claim concerning the timing of bond hearings. 354 F. Supp. 3d 1218.
On March 6, 2019, Judge Pechman granted the plaintiffs' amended motion for class certification and certified the following classes:
On April 5, 2019, Judge Pechman issued an order granting the plaintiffs' motion for preliminary injunction. The injunction mandated that the defendants conduct bond hearings within seven days of a bond request by a class member and that the burden would be placed on the defendants to demonstrate why the class member should not be released on bond. The injunction also mandated that the bond hearing be recorded and that a written decision with individualized determinations and findings be produced at the conclusion of a bond hearing. 379 F. Supp. 3d 1170.
On April 26, 2019, the defendants filed a motion to vacate the preliminary injunction.
On May 20, 2019, the plaintiffs filed a third amended complaint in light of the Attorney General's decision in the Matter of M-S-, "announcing that immigrants in removal proceedings awaiting the determination of their application for asylum must be detained for the duration of that process, subject to release only under a highly-limited 'parole' system adjudicated solely by immigration officials." The plaintiffs added three new claims to challenge the Attorney General's decision; (1) that section § 1225(b)(1)(B)(ii) is unconstitutional, (2) that the Attorney General’s decision in Matter of M-S- violates section 1225(b)(1), and (3) Matter of M-S- should have been issued in notice and comment rulemaking. The plaintiffs also amended the complaint to add declaratory and injunctive relief mandating that the defendants do not follow a policy of denying bond hearings to noncitizens found to have a credible fear of persecution.
On May 28, 2019, in wake of the Attorney General's decision, the plaintiffs filed a motion for modification of the existing preliminary injunction. The plaintiffs sought to have the preliminary injunction modified to ensure that class members found to have credible fear would be granted a bond hearing before an impartial adjudicator to determine if further detention is justified.
On July 2, 2019, Judge Pechman issued an order affirming the previously entered preliminary injunction and modifying the injunction to conclude that the Bond Hearing Class is constitutionally entitled to a bond hearing pending resolution of their asylum applications. Judge Pechman found that the statute denying these class members a bond hearing is unconstitutional because "any statute that provides for 'no bond hearing at all' is unlawful on its face." 387 F. Supp. 3d 1219.
On July 3, 2019, the defendants appealed the order affirming and modifying the preliminary injunction to the Ninth Circuit.
Only July 9, 2019, the defendants filed an emergency motion to stay pending appeal of the district court's preliminary injunction, arguing that the injunction will cause substantial harm to the defendants by "drastically limiting the government’s ability to enforce the immigration laws that Congress has written."
On July 12, 2019, the Ninth Circuit issued a temporary stay on the preliminary injunction to allow for the parties to file briefs on the motion to stay pending appeal.
On July 22, 2019, Circuit Judges Mary Schroeder, William Canby, and Morgan Christen issued an order granting in part and denying in part the defendants' emergency motion to stay. The appeals court declined to stay the part of the district court injunction holding that the Bond Hearing Class is constitutionally entitled to bond hearings pending resolution of their asylum applications. The appeals court granted the motion to stay the part of the injunction regarding deadlines for requested bond hearings and the procedural guidelines for those bond hearings, finding that these procedures would impose a short-term hardship on the government and the immigration system.
After hearing oral argument in October 2019, on March 27, 2020, a Ninth Circuit panel (Judge Sidney R. Thomas, Judge Michael Daly Hawkins, and Judge Bridget S. Bade) issued an opinion and order affirming in part the district court's preliminary injunction and directing the district court to "reconsider some of the technical aspects of its order." 2020 WL 1482393. Writing for the panel, Judge Thomas concluded that the district court did not abuse its discretion in finding that the plaintiffs were likely to succeed on the merits of their due process claim regarding the availability of bond hearings, "that they are constitutionally entitled to individualized bond hearings before a neutral decisionmaker," and that "the theoretical availability of the habeas process did not alone satisfy due process." Moreover, Judge Thomas held that the district court did not abuse its discretion "in concluding that the plaintiffs would suffer irreparable harm absent the grant of a preliminary injunction," in the form of "substandard physical conditions, low standards of medical care, lack of access to attorneys and evidence as Plaintiffs prepare their cases, separation from their families, and retraumatization of a population already found to have legitimate circumstances of victimization." However, Judge Thomas vacated and remanded to the district court Part A of the preliminary injunction, which laid out the procedural guidelines for the required bond hearings, to further develop the factual record and to revisit the scope of the injunction.
Judge Bade dissented from the panel's opinion and order and concluded that: "despite Congress unequivocally barring lower courts from issuing classwide injunctions against the operation of certain immigration statutes, the majority opinion gives a green light for the district courts in this circuit (as well as this court) to issue (and uphold) such relief. And, even if the district court had jurisdiction to issue injunctive relief, the preliminary injunction is overbroad and exceeds what the Constitution demands."
The defendants then filed a writ of certiorari in the Supreme Court of the Ninth Circuit’s decision on August 24, 2020. The case was docketed in the Supreme Court as No. 20-234. The parties agreed to stay the case while the cert petition was pending in the Supreme Court, and the district court stayed the case on September 11, 2020. The Supreme Court granted the cert petition on January 11, 2021. In the same order, it vacated the judgment and remanded the case to the Ninth Circuit in light of the Court’s decision in Thuraissigiam v. U.S. Department of Homeland Security earlier in the summer.
On February 16, 2021, the defendants requested that Ninth Circuit stay appellate proceedings. The Ninth Circuit granted this motion and held the appeal in abeyance on March 1, 2021. It further directed the parties to file a status report within 60 days of how the case should proceed.
On July 27, 2021, the Ninth Circuit granted the joint motion to hold the appeal in abeyance and issued an order referring the case to the Mediation Program. On May 20, 2022, the Ninth Circuit issued an order re-opening the case and expressed that mediation efforts have been exhausted and no solution was reached, therefore, the case was released from the Mediation Program.
The Ninth Circuit ordered the case to be stayed until the resolution of Garland v. Gonzalez and Biden v. Texas on June 6, 2022. On June 30, 2022, this stay was lifted.
On July 29, 2022, the Ninth Circuit remanded this case back to the district court with instructions to vacate the preliminary injunction and for further consideration in light of the Supreme Court’s decisions in Biden v. Texas, 142 S. Ct. 2528 (2022), Garland v. Gonzalez, 142 S. Ct. 2057 (2022), and Department of Homeland Security v. Thuraissigiam, 140 S. Ct. 1959 (2020).
On July 29, 2022, the court issued an order vacating the preliminary injunction.
The plaintiffs filed their fourth amended complaint on January 11, 2023. This amended complaint eliminated the request for injunctive relief, and the only relief sought was declaratory relief and a writ of habeas corpus.
On March 3, 2023, the defendants filed a motion to dismiss. The defendants argued that all of the plaintiffs' claims should be dismissed for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted.
The plaintiffs filed a motion on July 19, 2023, to hold in abeyance defendants’ motion to dismiss the Credible Fear Class claims. On July 20, 2023, the court granted this motion.
On October 18, 2023, the parties filed a joint motion for a preliminary approval of settlement and request for a fairness hearing. The settlement agreement reached by the parties aimed at settling the claims with respect to the Credible Fear Class only. The agreement stipulated that the defendants will not take more than 60 days to complete from date of referral to USCIS for the Credible Fear Class to date of credible fear decision service for any individual detained credible fear case. If more than 60 days elapse, the individual will be issued a Notice to Appear (NTA) and placed into removal proceedings. Additionally, defendants agreed to refer Credible Fear Class Members for credible fear interviews within 7 business days of "processing complete" or "book-in". The settlement agreement also mandated certain reporting requirements on the defendants behalf to ensure compliance with the agreed terms. The defendants agreed to pay attorney’s fees and costs in the amount of $100,000. The settlement was written to remain in effect for four years. On January 5, 2024, the court issued an order granting the proposed settlement agreement settling the claims with respect to the Credible Fear Class. The court expressed that the settlement agreement terms were fair, reasonable, and adequate.
On December 4, 2023, the issued an order on the defendants’ motion to dismiss granting it in part and denying it in part. The court denied the defendants’ motion to dismiss as to subject matter jurisdiction and found that it does have jurisdiction over the plaintiffs’ claims. The court denied the defendants’ motion to dismiss with respect to Counts I (failure to provide bond hearings within seven days violates the Due Process Clause), II (failure to provide bond hearings within seven days is contrary to constitutional right in violation of the APA), and VI (Pre-Matter of M-S- bond procedures violate the Due Process Clause). The court granted the defendants’ motion to dismiss with respect to Counts III (failure to follow notice-and-comment rulemaking before issuing Matter of MS- violates the APA) and V (failure to provide credible fear interviews and bond hearings within ten and seven days, respectively, constitutes unreasonable delay under the APA) and dismissed both these claims. The court noted that further factual development is needed to determine specific parameters like timeframes for bond hearings.
On February 2, 2024, the defendants filed a motion to certify for interlocutory appeal regarding two questions—whether the court has subject matter jurisdiction and whether plaintiffs may pursue their constitutional claims. On March 11, 2024, the court granted this motion and certified to the Ninth Circuit. The court stayed this matter pending resolution of this appeal. On May 2, 2024, the US Court of Appeals docket number 24-2801 was assigned to this case.
As of March 9, 2026, the case is ongoing with respect to the Bond Hearing Class.
Summary Authors
Alexandra Gilewicz (11/12/2018)
Aaron Gurley (6/1/2020)
Emily Kempa (3/21/2021)
Liat Sinclair (3/9/2026)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/7270273/parties/padilla-v-us-immigration-and-customs-enforcement/
Abrams, William F. (Washington)
Adams, Matt (Washington)
Adams, Matthew (Matt) Hyrum (Washington)
Ahearne, Thomas Fitzgerald (Washington)
Attorney, Lauren C.
Abrams, William F. (Washington)
Adams, Matthew (Matt) Hyrum (Washington)
Ahearne, Thomas Fitzgerald (Washington)
Attorney, Judy Rabinovitz, (Washington)
Balakrishnan, Anand V. (New York)
Boisen, Joanna Plichta (Washington)
Hodges, Benjamin J. (Washington)
Macleod-Ball, Kristin A. (Massachusetts)
Madrid, Glenda Melinda Aldana (Washington)
Project, Anand Balakrishnan, (Washington)
Attorney, Tola Myczkowska, (Washington)
Attorney, Mr. David (Washington)
Attorney, Bichngoc T. (Washington)
Bingham, Lauren Crowell (District of Columbia)
Darrow, Joseph A. (District of Columbia)
Duong, Alanna Thanh (Washington)
Ramkumar, Archith (District of Columbia)
See docket on RECAP: https://www.courtlistener.com/docket/7270273/padilla-v-us-immigration-and-customs-enforcement/
Last updated April 16, 2026, 4:53 a.m.
State / Territory:
Case Type(s):
Special Collection(s):
Trump Administration 1.0: Challenges to the Government
Key Dates
Filing Date: June 25, 2018
Case Ongoing: Yes
Plaintiffs
Plaintiff Description:
Credible Fear Interview Class: All detained asylum seekers in the United States subject to expedited removal proceedings who are not provided a credible fear determination within 10 days of requesting asylum or expressing a fear of persecution to a DHS official. Bond Hearing Class: All detained asylum seekers who entered the United States without inspection, determined to have a credible fear of persecution, but are not provided a bond hearing within 7 days of requesting a bond hearing.
Plaintiff Type(s):
Non-profit NON-religious organization
Attorney Organizations:
American Immigration Council's Legal Action Center
Northwest Immigrant Rights Project (NWIRP)
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: Yes
Class Action Outcome: Granted
Defendants
Federal
US Immigration and Customs Enforcement
Defendant Type(s):
Case Details
Causes of Action:
Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Habeas Corpus, 28 U.S.C. §§ 2241-2253; 2254; 2255
Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.
Constitutional Clause(s):
Other Dockets:
Western District of Washington 2:18-cv-00928
U.S. Court of Appeals for the Ninth Circuit 19-35565
Supreme Court of the United States 20-234
U.S. Court of Appeals for the Ninth Circuit 24-01736
U.S. Court of Appeals for the Ninth Circuit 24-02801
Available Documents:
Injunctive (or Injunctive-like) Relief
Outcome
Prevailing Party: Plaintiff OR Mixed
Relief Sought:
Relief Granted:
Source of Relief:
Form of Settlement:
Issues
General/Misc.:
Immigration/Border:
Jails, Prisons, Detention Centers, and Other Institutions:
Over/Unlawful Detention (facilities)
Placement in detention facilities
Case Summary of Padilla v. U.S. Immigration and Customs Enforcement, Civil Rights Litig. Clearinghouse, https://clearinghouse.net/case/16635/ (last updated 3/9/2026).