FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 19 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ALEJANDRO RODRIGUEZ, for himself Nos. 13-56706 and on behalf of a class of similarly-situated 13-56755 individuals; ABDIRIZAK ADEN FARAH, for himself and on behalf of a class of D.C. No. similarly-situated individuals; JOSE 2:07-cv-03239-TJH-RNB FARIAS CORNEJO; YUSSUF ABDIKADIR; ABEL PEREZ RUELAS, ORDER Petitioners-Appellees/ Cross-Appellants, and EFREN OROZCO, Petitioner, v. DAVID MARIN, Field Office Director, Los Angeles District, Immigration and Customs Enforcement; KIRSTJEN NIELSEN, Secretary, Homeland Security; MATTHEW G. WHITAKER, Acting Attorney General; WESLEY LEE, Assistant Field Office Director, Immigration and Customs Enforcement; RODNEY PENNER, Captain, Mira Loma Detention Center; SANDRA HUTCHENS, Sheriff of Orange County; NGUYEN, Officer, Officer-in-Charge, Theo Lacy Facility; DAVIS NIGHSWONGER, Captain, Commander, Theo Lacy Facility; MIKE KREUGER, Captain, Operations Manager, James A. Musick Facility; ARTHUR EDWARDS, Officer-in-Charge, Santa Ana City Jail; RUSSELL DAVIS, Jail Administrator, Santa Ana City Jail; JAMES MCHENRY, Director, Executive Office for Immigration Review, Respondents-Appellants/ Cross-Appellees. On Remand From The United States Supreme Court Argued and Submitted October 29, 2018 Pasadena, California Before: Kim McLane Wardlaw and Ronald M. Gould, Circuit Judges, and Sam E. Haddon, * District Judge. In Jennings v. Rodriguez, 138 S. Ct. 830 (2018), the Supreme Court held that we misapplied the canon of constitutional avoidance to hold that certain immigration detention statutes, namely 8 U.S.C. §§ 1225(b), 1226(a), and 1226(c), implicitly contain a reasonableness determination after which due process concerns require that persons in prolonged mandatory detention are entitled to individualized bond hearings and possibly, conditional release. Although the Court sought and received briefing on the straightforward constitutional question, i.e. without the implicit requirement of due process for persons in arbitrary prolonged detention, whether these detention statutes are constitutional, it declined * The Honorable Sam E. Haddon, United States District Judge for the District of Montana, sitting by designation. 2 to reach the constitutional question. The Court instead chose to answer only the question whether the statutory text itself included a limit on prolonged detention or a requirement of individual bond hearings. In an opinion authored by Justice Alito, the Court concluded that as a matter of statutory construction, the only exceptions to indefinite detention were those expressly set forth in the statutes or related regulations. See 8 U.S.C. § 1182(d)(5)(A) (humanitarian parole); 8 U.S.C. § 1226(a)(2)(A) (bond); 8 U.S.C. § 1226(c)(2) (witness protection); 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1) (bond hearing). The Court then remanded the constitutional issues to our court, and we now, taking our cue from it, likewise remand this case to the district court, which had no occasion to consider [petitioners’] constitutional arguments on their merits. Consistent with our role as “a court of review, not of first view,” we do not reach those arguments. Instead, we remand the case to the [district court] to consider them in the first instance. Rodriguez, 138 S. Ct. at 851 (citation omitted). The Court also decided to give us some homework on issues not raised by ...
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