Via Lee Kovarsky
NEW #AlienEnemiesAct problem (Denial of #Habeas class treatment)
Remember when #SCOTUS issued a 1AM order “not to remove any member of the putative class of detainees…until further order of this Court?”
These were noncitizens housed in Texas & subject to removal under the #AEA.
The district court in that case (WMM) just became the first (out of 6) to deny class certification–in an order issued while the case was otherwise pending before SCOTUS.
It’s also the first modern opinion suggesting that the #AllWritsAct ought not be used to facilitate representative litigation.
The DCT opinion denying WMM class certification is here: https://drive.google.com/file/d/1PxtMvxICwiycPCSUElX0Vozb_1YYba6E/view
The ACLU motion for reconsideration is here: https://drive.google.com/file/d/177zsV5Rmz3F4_vmlqdIoArBnx5TXYdIL/view
The Class Action & #Habeas Professors’ Brief (that Kovarsky co-authored) is here: https://drive.google.com/file/d/1xoRg5_AvwShPBjRHhtCvubU9SlZBwsGq/view
Without class treatment, #AEA detainees are going to get shipped to #CECOT in #ElSalvador credibly accused of permitting torture.
And they will get shipped there without a meaningful attempt to assert their rights.
The district court seems to credit the govt’s suggestion that detainee rights against unlawful #rendition to CECOT can be adequately protected without class treatment.
#Trump #AlienEnemiesAct #immigration #law #judiciary #DueProcess
But let’s be clear about what’s happening.
The government plans to remove people - many of whom don’t speak English - who don’t file legal claims within 12-24 hours of receiving an English-language notice of their removal.
Aside from the fact that many #AEA detainees don’t speak the language in which the notices are written, the notices don’t seem to tell the AEA detainees how to contest their designation & removal at all.
#Trump #AlienEnemiesAct #immigration #law #judiciary #DueProcess
The idea still seems to be that these people would file #habeas petitions in this window pro se.
The #AEA proclamation was issued 2 months ago, & NOT A SINGLE AEA detainee has been able to file a habeas petition on their own.
NOT ONE.
The idea that courts can meaningfully disrupt unlawful removal through individualized notice & initiative – & without access to class counsel – is absurd on its face.
#Trump #AlienEnemiesAct #immigration #law #judiciary #DueProcess
The DCT opinion is also problematic legally regarding the appropriateness of class treatment under the federal rules.
There are at least 5 legal issues that are plainly common to the #AEA class:
1) is the AEA Proclamation invalid for want of an “invasion” or “predatory incursion;”
2) is the Proclamation invalid because TdA isn’t an alter ego of the Venezuelan government;
#Trump #AlienEnemiesAct #immigration #law #judiciary #DueProcess
3) does the #AEA Proclamation unlawfully circumvent #immigration procedures specified in Title 8;
4) do AEA detainee destinations require screenings for torture; &
5) are the Government’s notice procedures constitutional?
The DCT opinion denying class treatment of these common issues involves many black-letter legal mistakes. Here’s 3. These are flat-out mistakes, not questions subject to reasonable disagreement amongst fairminded lawyers.
1st (& most importantly), the judge seemed to think that common class issues must predominate in a 23(b)(2) class for injunctive or declaratory relief – & so the presence of individualized issues precluded class treatment.
But that’s not how Rule 23(b)(2) works. Rule 23(b)(2) classes are appropriate whenever a single remedy can provide any classwide relief on a common issue.
#Trump #AlienEnemiesAct #immigration #law #judiciary #DueProcess
Wal-Mart v. Dukes (2011) literally states that Rule 23(b)(2) is appropriate “when a single injunction or declaratory judgment would provide relief to each member of the class.”
To be clear: it is commonplace for legal issues to be decided on classwide bases & for courts to deal with individualized issues later. And indivisible, classwide relief can be awarded on any combination of the 5 common issues mentioned above.
#Trump #AlienEnemiesAct #immigration #law #judiciary #DueProcess
2nd, the district court referenced some concern that classwide #habeas treatment might preclude subsequent litigation of individual issues. But that’s wrong too. Class treatment on the common issue only precludes ON THAT ISSUE.
Per the leading treatise on class actions, it is black-letter #law that “a judgment in a class action does not preclude later lawsuits by class members concerning individualized claims.” 6 Newberg & Rubenstein on Class Actions §18:17 (6th ed.)
And res judicata doesn’t even apply in habeas cases. That is, a judgment in a case where a detainee challenges aspects of a detention isn’t res judicata as against subsequent challenges to that same detention.
Here’s United States v. Sanders (1963), explaining just how deeply embedded in Anglo American legal tradition that rule is:
#Trump #AlienEnemiesAct #immigration #law #judiciary #DueProcess
The DCT seems to suggest that it’s denying class certifications to protect the interests of the #AEA detainees. But there is just no threat of preclusion that the DCT needs to PROTECT AGAINST.
Third, the court expressed doubt about whether there can be injunctions & declaratory relief in cases with #habeas claims. Instead, the DCT seems to believe, habeas relief is for discharge only. Again, I’m confused.
#Trump #AlienEnemiesAct #immigration #law #judiciary #DueProcess
In JGG v. Trump–the case in which #SCOTUS sent the #AEA litigation out of the DC District–SCOTUS specifically said that #habeas could be used to review &, if necessary, preclude AEA removal. It’s not limited to discharge.
In fact, JGG seemed to indicate the case had to be treated as habeas litigation BECAUSE it sought “injunctive & declaratory relief against the implementation of, & [detainee] removal under, the Proclamation.”
#Trump #AlienEnemiesAct #immigration #law #judiciary #DueProcess
There’s nothing remotely novel about the
notion that #habeas claimants can get injunctive & declaratory remedies.
28 USC 2243 empowers courts to use habeas remedies “as law & justice require,” which has historically been identified as the source of power to issue injunctions & declaratory relief in many different HABEAS case types.
#Trump #AlienEnemiesAct #immigration #law #judiciary #DueProcess
The DCT simply seems to confuse (repeatedly) the idea that
1) detainees must seek discharges through #habeas with
2) the only habeas relief is discharge.
There’s another practical problem. Even though the #Trump admin has lost class certification issues everywhere else, it only takes one.
If the refusal to certify the class in NDTX sticks, then - dollars to donuts - the admin is going to funnel all of the #AEA detainees there, & it will subsequently remove them to #CECOT.
Nonilex