Filed Date: Aug. 1, 2013
Closed Date: May 31, 2019
Clearinghouse coding complete
On August 1, 2013, immigration detainees filed this lawsuit in the Western District of Washington against the Department of Homeland Security (DHS) and the Department of Justice (DOJ) challenging the government's policy and practice of detaining immigrants in deportation proceedings even when they were released from criminal custody some time earlier. They alleged that this practice violates the Immigration and Nationality Act (INA) and the plaintiffs' due process rights under the Fifth Amendment. The plaintiffs, represented by attorneys from the ACLU of Washington, the ACLU Immigrants' Rights Project, the Northwest Immigrant Rights Project, and the firm of Gibbs Houston Pauw, sought class certification and injunctive and declaratory relief. In particular, plaintiffs requested individualized bond hearings.
The plaintiffs were lawful permanent residents who were convicted of crimes and were released from criminal custody long before they were detained by ICE. When detained by ICE, they were held in mandatory detention. Plaintiffs alleged that ICE has misapplied the mandatory detention statute, 8 U.S.C § 1226(c), to individuals like them who have been living in the United States for years since their release without incident. They argued that the statute only allows mandatory detention for people who are convicted of certain crimes and who are taken into immigration custody at the time they are released from the criminal justice system for such a crime.
On October 7, 2013, the court (Judge Richard A. Jones) terminated the defendants' motion for a scheduling conference and the plaintiffs' motion for summary judgment and a permanent injunction. The court found that the case could be resolved based on the plaintiffs' motion for a preliminary injunction and the defendants' motion to dismiss.
On March 11, 2014, the court granted the plaintiffs’ motion for class certification, certifying under Rule 23(b)(2) “[a]ll individuals in the Western District of Washington who the government asserts or will assert are subject to mandatory detention under 8 U.S.C. § 1226(c) and who were not taken into immigration custody immediately upon their release from criminal custody for an offense referenced in § 1226(c)(1).” Khoury v. Asher, 3 F.Supp.3d 877, 890 (W.D. Wash. 2014). The court dismissed the plaintiffs’ motion for a preliminary injunction without prejudice, but issued declaratory relief in the following form: “The government may not subject an alien to mandatory detention via 8 U.S.C. § 1226(c) unless the government took the alien into custody immediately upon his release from custody for an offense described in subparagraphs (1)(A) through (1)(D) of § 1226(c).”
On April 9, 2014, the court entered judgment for the plaintiffs, and the defendants appealed the class certification to the Ninth Circuit.
On August 4, 2016, the Ninth Circuit affirmed the decision of the district court certifying a class of immigrant detainees and declaring their entitlement to bond hearings. The court reasoned that the plain language of 8 U.S.C. § 1226(c), stating that mandatory detention only applies to immigrants detained "when [they are] released" from criminal custody, conveyed a degree of immediacy and therefore applied only to immigrants detained promptly after their release from criminal custody. Khoury v. Asher, 667 Fed. Appx. 966 (9th Cir. 2016).
In reaching its decision, the Ninth Circuit cited to a related case decided the same day and reaching the same conclusion that the government may detain without a bond hearing only those immigrants it takes into immigration custody promptly upon their release from criminal custody. Preap v. Johnson, 831 F.3d 1193 (9th Cir. 2016). The government appealed both decisions and on March 19, 2018, the Supreme Court of the United States granted certiorari in order to resolve a circuit split on the meaning of 8 U.S.C. § 1226(c). Nielsen v. Preap, 138 S. Ct. 1279 (2018).
On March 19, 2019, the Supreme Court, in a 5-4 split, issued a decision in Nielson v. Preap reversing the Ninth Circuit's judgments and remanding the cases. Justice Alito, writing for the majority, concluded that a noncitizen does not become exempt from mandatory detention under 8 U.S.C. § 1226(c) through the failure to take him into immigration custody immediately upon release from criminal custody. Justice Alito further held that the Ninth Circuit’s interpretation of § 1226(c) was contrary to the plain text and structure of the statute. In reaching this conclusion, the majority engaged in a rigorous grammatical review and justified its conclusion by stating that "an official’s crucial duties are better carried out late than never." Furthermore, the majority concluded that there were no constitutional questions involved and that the decision resolved only a statutory question.
Justice Breyer, along with Justices Ginsburg, Kagan, and Sotomayor, dissented, stating that the language of the statute was not plain and that “[t]he words 'when the alien is released' require the Secretary to detain aliens under subsection (c) within a reasonable time after their release from criminal custody — presumptively no longer than six months." Moreover, Justice Breyer stated that the court should have invoked the canon of constitutional avoidance to avoid the constitutional questions that might be raised in the event of an arrest years after release from state custody and the denial of a bond hearing. 139 S. Ct. 954.
On May 1, 2019, in light of the Supreme Court's decision, the Ninth Circuit issued an order vacating its 2016 order and reversed the district court's judgment. The Ninth Circuit remanded the case to the district court for further proceedings consistent with the Supreme Court's decision.
After the parties filed a proposed order for dismissal, the district court dismissed plaintiffs' complaint on May 31, 2019.
The case is closed.
Summary Authors
Jennifer Bronson (11/11/2013)
Allison Hight (3/27/2016)
Eva Richardson (10/7/2018)
Aaron Gurley (6/1/2020)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/5236088/parties/khoury-v-asher/
Alito, Samuel A. Jr. (District of Columbia)
Adams, Matthew (Matt) Hyrum (Washington)
Baker, La Rond (Washington)
Belsan, Timothy Michael (District of Columbia)
Chen, Hans (District of Columbia)
Alito, Samuel A. Jr. (District of Columbia)
Jones, Richard A. (Washington)
Kavanaugh, Brett M. (District of Columbia)
Roberts, John Glover Jr. (District of Columbia)
See docket on RECAP: https://www.courtlistener.com/docket/5236088/khoury-v-asher/
Last updated Feb. 10, 2024, 3:08 a.m.
State / Territory: Washington
Case Type(s):
Special Collection(s):
Post-WalMart decisions on class certification
Key Dates
Filing Date: Aug. 1, 2013
Closing Date: May 31, 2019
Case Ongoing: No
Plaintiffs
Plaintiff Description:
Immigration detainees
Plaintiff Type(s):
Attorney Organizations:
Northwest Immigrant Rights Project (NWIRP)
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: Yes
Class Action Outcome: Granted
Defendants
Department of Homeland Security, Federal
Department of Justice, Federal
Defendant Type(s):
Case Details
Causes of Action:
Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.
Constitutional Clause(s):
Available Documents:
U.S. Supreme Court merits opinion
Outcome
Prevailing Party: Defendant
Nature of Relief:
Source of Relief:
Content of Injunction:
Issues
General:
Jails, Prisons, Detention Centers, and Other Institutions:
Placement in detention facilities
Immigration/Border: