Efren Orozco, Petitioner, v. JENNINGS III (2018)

ORDER

The parties are directed to file supplemental briefs addressing the following procedural questions: (1) whether this Court has jurisdiction over petitioners' constitutional claims despite 8 U.S.C. § 1252(f)(1), and if not, whether the Court may nonetheless issue declaratory relief for the Rule 23(b)(2) class; (2) whether a Rule 23(b)(2) class action continues to be the appropriate vehicle for petitioners' claims in light of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011); and (3) whether a Rule 23(b)(2) class action litigated on common facts is an appropriate way to resolve petitioners' claims.

The supplemental briefs should also address the following constitutional questions: (1) whether the Constitution requires that aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts more than six months; (2) whether the Constitution requires that criminal or terrorist aliens who are subject to mandatory detention under U.S.C. § 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts more than six months; and (3) whether the Constitution requires that, in bond hearings for aliens detained for more than six months under §§ 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community or rather whether the government's proof of flight risk or danger could be by only a preponderance of the evidence, whether the length of the alien's detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months. Although we acknowledge that some prior briefing may have touched upon these constitutional issues, as did the supplemental briefing at the Supreme Court, we ask the parties to address these issues anew, given the Supreme Court decision in this appeal, and to address any intervening changes in the legal landscape.

The briefing schedule shall proceed as follows:

• Petitioners' supplemental brief shall be due within thirty days of this Order.

• Respondents' supplemental answering brief shall be due within thirty days of service of Petitioners' supplemental brief.

• Amicus briefs may be filed with the Clerk and served upon counsel within fourteen days of filing of Respondents' supplemental answering brief.

• Optional supplemental reply briefs may be filed by Petitioners or Respondents within thirty days of filing of Respondents' supplemental answering brief.

The word limits and cover colors for the briefs should correspond to the provisions of Federal Rule of Appellate Procedure 32. An amicus brief may not exceed thirty pages. The Court will schedule oral argument at the close of briefing.

IT IS SO ORDERED.