MEMORANDUM AND ORDER REGARDING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION
(Dkt. No. 33)
PONSOR, District Judge.
I. INTRODUCTION
Plaintiff, a lawful permanent resident, has been held in immigration detention pursuant to 8 U.S.C. § 1226(c) without an opportunity for release on bail. He has brought a motion seeking to certify a class of all individuals who are or will be detained within the Commonwealth of Massachusetts pursuant to § 1226(e) for over six months and are not provided an individualized bond hearing. (Dkt. No. 33.) Defendants, a number of state and federal government agents, oppose the motion. Because the four requirements of Fed.R.Civ.P. 23(a) are satisfied, and because the proposed class falls squarely into Rule 23(b)(2), the court will allow Plaintiffs motion.
II. BACKGROUND
The detailed facts underlying this litigation are well documented in the court’s recent Memorandum and Order Regarding Plaintiffs Petition for Habeas Corpus and Plaintiffs Motion for Order to Show Cause. Reid [188] v. Donelan, — F.Supp.2d -, 2014 WL 105026 (D.Mass.2014).
To briefly summarize, in November 2012, the state of Connecticut released Plaintiff from criminal custody, and Immigrations and Customs Enforcement (ICE) immediately detained him. The government invoked § 1226(c), a statute that permits the detention of certain aliens without an opportunity for release on bail, to justify Plaintiffs fourteen-month detention.
Plaintiff brought this ease, relying on Bourguignon v. MacDonald, 667 F.Supp.2d 175 (D.Mass.2009), to argue that Defendants may only detain an individual without an individualized bond hearing for a “reasonable” period of time. Once that threshold is crossed, the government must provide the detainee with an opportunity to argue for his or her release. This opportunity, of course, will not make actual release inevitable, or even necessarily likely.
On August 15, 2013, Plaintiff filed the pending Motion for Class Certification. Counsel argued the class issue in tandem with Plaintiffs habeas petition on December 12, 2013, and the court took both matters under advisement.
On January 9, 2014, the court granted Plaintiffs individual Petition for Habeas Corpus. (Dkt. No. 80.)1 Relying on the Supreme Court’s decisions in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), and Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), the Ninth Circuit’s opinion in Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013), and its prior decision in Bourguignon, the court concluded that a “reasonableness” limit does exist in the statute. Furthermore, it determined that six months is the ceiling for detention absent individualized consideration, since any holding beyond that time would be “presumptively unreasonable.”
The court is now tasked with determining whether class treatment is appropriate.
III. DISCUSSION
In order to sustain a suit under Fed. R.Civ.P. 23, Plaintiff must satisfy the four requirements of Rule 23(a) and show that the proposed class falls into a Rule 23(b) category. Plaintiffs attorneys also request certification as class counsel and thus must meet the demands of Rule 23(g).2
A. Rule 23(a)
Plaintiffs first obstacle, Rule 23(a), is composed of four elements. The rule requires that: (1) the class is so numerous that joinder of all members is impracticable; (2) questions of law or fact common to the class exist; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Rule 23(a). Plaintiff bears the burden of establishing each requirement, In re Eaton Vance Corp. Sec. Litig., 219 F.R.D. 38, 43 (D.Mass.2003), and the court must engage in a “rigorous analysis” to discern whether that burden is met. Wal-Mart Stores v. Dukes, — U.S. -, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). Each factor will be addressed independently below.
1. Numerosity
Initially, class certification must be “so numerous that joinder of all its members is impracticable.” Rule 23(a)(1). Numerosity involves a class-specific inquiry, Gen. Tel. Co. v. EEOC, 446 U.S. 318, 330, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980), and requires more than mere speculation. See Marcus v. BMW of No. Am., LLC, 687 F.3d 583, 596-97 (3d Cir.2012). Although no specific threshold [189] exists, a class size of forty or more will generally suffice in the First Circuit. See George v. Nat’l Water Main Cleaning Co., 286 F.R.D. 168, 173 (D.Mass.2012). A plaintiff need not provide a precise number, as a court may draw “reasonable inferences from the facts presented to find the requisite numerosity.” McCuin v. Sec’y of Health & Human Servs., 817 F.2d 161, 167 (1st Cir. 1987). Moreover, the threshold may be relaxed when a party seeks only declaratory or injunctive relief, since the inclusion of future members increases the impracticability of joinder. Id.
Here, Plaintiff successfully demonstrates that the proposed class meets the forty-person threshold and, more importantly, that joinder is impracticable. Plaintiff presents data provided by ICE listing the individuals held in Massachusetts for over six months pursuant to § 1226(c). (List of Individuals Detained, Dkt. No. 34, Ex. 3) At any given time in the year provided, January 2011 to January 2012, there were between 39 and 42 members of the proposed class. Although Defendants believe that this estimate is outdated and over-inclusive, two factors suggest that the precise number is actually higher.
First, an influx of future members will continue to populate the class. Despite numerous court decisions ruling against Defendants, see, e.g., Ortega v. Hodgson, No. 11-cv-10358-MBB, 2011 WL 4103138 (D.Mass. Sept. 13, 2011); Flores-Powell v. Chadbourne, 677 F.Supp.2d 455 (D.Mass.2010); Sengkeo v. Horgan, 670 F.Supp.2d 116 (D.Mass.2009), the government has remained steadfast to its dubious interpretation of § 1226(c). This has coincided with the government’s expanded focus on detaining criminal-aliens and prolonged delays in immigration litigation. See Transactional Records Access Clearinghouse (TRAC), Average Time Pending Cases Have Been Waiting in Immigration Courts as of December 2013, Syracuse University (Dec. 2013), http://trac. syr.edu/phptools/immigration/courL.backlog/ apprep_baeklog_avgdays.php. As a result, increasing numbers of individuals are held pursuant to this statute beyond six months, but are not provided an individualized bond hearing.
The potential inclusion of these currently uncountable, future class members not only increases the number beyond forty, but also illustrates the transient nature of the proposed class. Unforeseen members will join the class at indeterminate points in the future, making joinder impossible. See William B. Rubenstein, Newberg on Class Actions § 3.15 (5th ed. 2013)(noting that the inclusion of future members “may make class certification more, not less, likely”). The estimate of 39 to 42 is merely the floor for this numerosity inquiry when inevitable future members are taken into consideration.
Plaintiffs estimate is also conservative since the class members in this case, including those currently in detention, are not easily identifiable. Members are located in four facilities across the Commonwealth and are housed among individuals held under a variety of statutory provisions, for distinct periods of time. As the court noted previously, many do not speak English, a majority do not have counsel, and most are unlikely even to know that they are members of the proposed class. See Reid, — F.Supp.2d at -. To expect Plaintiff to find every class member across Massachusetts and join each one in this suit is unreasonable under such circumstances.
Thus, since the number of current and future class members is beyond the forty-person threshold, and because joinder is impracticable in this case, the proposed class meets the first Rule 23(a) requirement.
2. Commonality
The second element of Rule 23(a) is the existence of a question of law or fact common to the class. Rule 23(a)(2). The key to commonality is that the truth or falsity of a question “will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, 131 S.Ct. at 2551. A plaintiff need only establish “a single common question” to satisfy this requirement. Id. at 2256.
Although Plaintiff presents a single question of law that hovers over the entire [190] case — namely, whether § 1226(c) requires a bond hearing after an unreasonable period of detention — Defendants argue that commonality is lacking for two reasons. First, § 1226(c) permits detention for a variety of legal and factual reasons. Members of the proposed class have committed significantly different crimes, ranging from those involving moral turpitude to acts of terrorism. Moreover, the dispositions of the potential class members’ criminal cases may vary: some may be convicted of the crime charged, while others may be subject to detention absent any conviction. This variety, in Defendants’ view, undermines any finding of commonality.
Second, Defendants say, even if a reasonableness requirement is embedded in the statute, it necessarily requires a fact-specific inquiry as to whether an individual’s detention is “unreasonable.” See Diop v. ICE/Homeland Sec., 656 F.3d 221, 234 (3d Cir.2011); Ly v. Hansen, 351 F.3d 263, 273 (6th Cir.2003). The question of whether a reasonableness limit exists is only part of the analysis and, therefore, fails to resolve the claims of the entire class.
These arguments cannot withstand scrutiny. The distinctions Defendants highlight, particularly the varied criminal histories across the class, are irrelevant to the court’s ruling on the issue of class certification. The question raised by this litigation is not whether any individual detainee is entitled to release on bail — a question that is certainly impacted by the factual differences asserted. Instead, the sole question here is whether an individual detainee has a due process right to argue for such release. That question is one purely of law, resolvable irrespective of the distinctions identified by Defendants.
Defendants’ second contention, though ultimately flawed, strikes at the heart of the commonality analysis: does the inclusion of a “reasonableness” limit in § 1226(c) ensure class-wide relief, or does a remedy hinge on individual considerations? Given the prior order on Plaintiffs individual habeas petition, which addressed that very question, it would be artificial for the court to approach this inquiry as though it were writing on a clean slate. Indeed, the Supreme Court has opined on the permissibility of courts’ examining the merits of a case, if necessary, at this stage of the analysis. As the Court said,
Repeatedly, we have emphasized that it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question, and that certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied. Such an analysis will frequently entail overlap with the merits of the plaintiffs underlying claims. That is so because the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiffs cause of action.
Comcast Corp. v. Behrend, — U.S. -, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013) (internal citations and quotations omitted).
In analyzing Plaintiffs individual petition, this court deemed the Ninth Circuit’s six-month approach as most compatible with Supreme Court precedent, due process considerations, and administrative constraints. Reid, — F.Supp.2d at---. Thus, in interpreting § 1226(c), the court not only found a reasonableness limit in the statute, but determined that the limit resided at the six-month date. Id. Since that interpretation, if applied to the entire class, resolves the claim of every member, the commonality metric is certainly met.
Even if the commonality query presented itself in a vacuum, one where the individual habeas petition was still pending, the court need only re-frame the question to illustrate the clarity of commonality. As the Ninth Circuit said, the question is simply: “May an individual be detained for over six months without a bond hearing under a statute that does not explicitly authorize detention for longer than that time without generating serious constitutional concerns?” Rodriguez v. Hayes, 591 F.3d 1105, 1123 (9th Cir.2009). Accordingly, were the court to answer affirmatively and, therefore, agree with Defendants that individual determinations were required, that answer would still resolve the entire case. That is, even if Defendants offered the correct interpretation of the stat[191] ute, they would still be providing an answer to a common question of law.
Therefore, since the answer to a single, legal question disposes of the claims of the entire class, Plaintiff satisfies the commonality metric.
3. Typicality
The third requirement under Rule 23(a) is that the claims of the class representative must be typical of the other class members. Rule 23(a)(3). “[A] class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (citations and internal quotation marks omitted). Although the analysis of commonality and typicality “tend to merge,” id. at 157 n. 13, 102 S.Ct. 2364 they are different concepts warranting distinct examinations. See Connor B. ex rel. Vigurs v. Patrick, 272 F.R.D. 288, 293 (D.Mass.2011). “[C]ommonality evaluates the sufficiency of the class itself while typicality evaluates the sufficiency of the named plaintiff.” Id. (internal quotations omitted), quoting Hassine v. Jeffes, 846 F.2d 169, 177 n. 4 (3d Cir.1988).
Defendants, recognizing this overlap, simply apply their commonality discussion to the typicality analysis. For the same reasons those arguments were rejected before, they are unavailing in this context. Simply put, no possibility exists that an individual claim or factual difference will “consume the merits” of this class action. Durmic v. J.P. Morgan Chase Bank, 10-cv-10380-RGS, 2010 WL 5141359, at *4 (D.Mass. Dec. 10, 2010).
Plaintiff presents the same, single question of law as his fellow class members. He seeks the same remedy — an individualized bond hearing — as everyone else. No serious objection to typicality can be offered under these circumstances.
4. Adequacy
The final Rule 23(a) requirement is that the class representative must be one who will “fairly and adequately protect the interests of the class.” Rule 23(a)(4). This requires the party to show “first that the interests of the representative party will not conflict with the interests of any of the class members, and second, that counsel chosen by the representative party is qualified, experienced, and able to vigorously conduct the proposed litigation.” Andrews v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir.1985).
Defendants provide two arguments to attack Plaintiffs status as an adequate representative. First, the list of potential class members presented by Plaintiff includes detainees with final orders of removal. Such aliens, Defendants posit, are clearly distinct.
Second, the legal and factual differences, discussed previously, will require each party to present his or her claim differently. Each individual litigant will need to make different strategic decisions respecting his or her case. Given this individualized need, any class member would be an unsuitable representative for any other.
Defendants’ first concern is easily assuaged. The class requested, and being certified, only includes those individuals held under § 1226(c) beyond the six-month mark. Any individual held under a different statute is simply not, for the time being at least, part of this class.3
Defendants’ second contention suffers from the same flaws as their commonality and typicality arguments. The differences they allege speak to the outcome of the bond hearing — release on bail — and not whether a bond hearing is required in the first place. Factual differences may indeed yield different outcomes at individual bond determinations. But, in this case, every member is seeking the same remedy — the hearing itself, whatever its outcome — based on an identical theory. Plaintiffs interests are coextensive with the class, and he is therefore an adequate class representative.
[192] The fact that the court decided Plaintiffs habeas petition before the class certification motion does not pose a problem in the adequacy analysis. First, the “inherently transitory” exception to the mootness doctrine was designed for precisely this situation. In Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the Supreme Court held that the decision regarding a named representative’s pretrial detention before the decision on the class certification motion did not moot the entire case. Id., at 110 n. 11, 95 S.Ct. 854. Instead, the court said, “[I]t is by no means certain that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify a class.” Id.
Here, it is not clear how long any given individual will be held and, therefore, whether anyone would be subject to detention long enough for the court to certify a class. This is particularly true since any potential class representative would have the right to seek immediate relief through an individual habeas petition.
Moreover, Plaintiff retains a continuing interest in this case. In filing an individual motion and a motion for class certification, Plaintiff brings two separate claims: a claim that he is entitled to relief and a claim that he is entitled to represent a class. See U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 400, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980)(finding that a class representative can appeal the denial of class certification, despite the fact that his individual petition became moot). Although the First Circuit has not determined whether this applies when an individual’s claim becomes moot before a class is certified, the Third Circuit has allowed a plaintiff to continue as a class representative in such a context. Wilkerson v. Bowen, 828 F.2d 117, 121 (3d Cir.1987). It would be anomalous to remove a plaintiff from a case where he files both motions within the same period of time, simply because the court moves expeditiously to provide individual relief.4
Plaintiff has also more than met his burden to demonstrate the adequacy of class counsel. Plaintiffs counsel — supervising attorneys and law student interns of the Jerome N. Frank Legal Services Organization at Yale Law School' — have experience in immigration and constitutional law, civil rights litigation, and habeas corpus actions. In fact, they have previously litigated similar § 1226(c) challenges in the federal courts. See, e.g., Bourguignon, 667 F.Supp.2d 175; Hyppolite v. Enzer, 2007 WL 1794096 (D.Conn. June 19, 2007). Counsel also has experience managing class actions. See Brizuela v. Feliciano, No. 3:13-cv-226-JBA (D. Conn. filed Feb. 13, 2012); Shepherd v. McHugh, No. 3:11-cv-641-AWT (D.Conn. filed Dec. 3, 2012). The adequacy of counsel is made even clearer when examining the Rule 23(g) requirements below.
Rule 23(a) is the essence of a class certification analysis. In satisfying the four requirements of Rule 23(a), Plaintiff has successfully cleared the first and most important hurdle.
B. Rule 23(b)
In addition to meeting the four requirements of Rule 23(a), Plaintiff must show that the proposed class falls into one of the three defined categories of Rule 23(b). The most applicable here is Rule 23(b)(2), which requires a showing that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, so that final injunctive relief or corresponding declaratory relief is appropriate with respect to the class as a whole.”
Defendants again assert that individual differences among the potential class members preclude their eligibility under this rule. The government, in its view, does not treat all § 1226(c) detainees alike. Instead, it makes different determinations related to detention based on individual factors. Notably, the government does not specify how it considers individual characteristics nor, crucially, does it contend that it provides bond hearings to any § 1226(c) detainees regardless of these characteristics.
[193] Defendants also believe that 8 U.S.C. § 1252(f)(1) bars this court from granting class-wide injunctive or declaratory relief, thus making certification under Rule 23(b)(2) inappropriate. That statute provides that no court “shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of [8 U.S.C. §§ 1221-1231] ... other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.” 8 U.S.C. § 1252(f)(1).
Despite Defendants’ arguments, the proposed class fits neatly into Rule 23(b)(2). First, Defendants have acted, or refused to act, on grounds generally applicable to all members of the class. In fact, civil rights actions like this one, where a party charges that another has engaged in unlawful behavior towards a defined group, are “prime examples” of Rule 23(b)(2) classes. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997).
Here, it is undisputed that Defendants refuse to provide any of the class members with an individualized bond hearing. Despite alleged differences, members of the class have all been treated identically with respect to the opportunity to argue for release on bail. Defendants have thus consistently and, in the court’s view, incorrectly applied § 1226(c) to the entire class.
Second, Plaintiff seeks a single injunction or a single declaratory judgment — specifically, an order that § 1226(c) must be read as providing an individualized bond hearing after six months of detention. He does not request any damages that have the potential to muddy the analysis. As the Supreme Court has recently made clear,
Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.
Wal-Mart, 131 S.Ct. at 2557. Critically, the entire class seeks the same remedy, placing it firmly in the Rule 23(b)(2) category.
Defendants’ final argument respecting § 1252(f)(1) is also fruitless. At a minimum, class-wide declaratory relief is available.5 Equitable relief may only be restricted by “clear and valid legislative command,” or “by a necessary and inescapable inference.” Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946). Since injunctive and declaratory relief are distinct, see Steffel v. Thompson, 415 U.S. 452, 471, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), the statute, by its own terms, does not proscribe a class-wide declaratory remedy.
This conclusion is augmented by the First Circuit’s interpretation of § 1252(f)(1). In Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir.2003), the court probed the language of the clause and gave meaning to both operative terms. Specifically, it found that “restrain” meant something different from “enjoin” — the former referring to a temporary injunction and the latter indicating a permanent injunction. Id. at 1013. In doing so, the First Circuit defined each key term in § 1252(f)(1), yet did not construe either as “declaratory relief.”
Finally, persuasive authority recognizing the utility of class treatment in this circumstance further justifies the court’s conclusion. See Hayes, 591 F.3d at 1119; Alli v. Decker, 650 F.3d 1007 (3d Cir.2011). As the Third Circuit said, “[A]llowing class-wide declaratory relief would facilitate the Supreme Court review that Congress apparently intended.” Alli 650 F.3d at 1016 (internal quotation marks omitted). As a result, the class can, at a minimum, seek declaratory relief, and therefore certification as a Rule 23(b)(2) class is appropriate.6
[194] Plaintiff has successfully shown that the class falls squarely into Rule 23(b)(2) and that class treatment is appropriate.
C. Rule 23(g)
The final consideration is whether class counsel can be certified under Rule 23(g). Here, four factors are relevant:
(I) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class.
Rule 23(g)(1)(A). Counsel must also “fairly and adequately represent the interests of the class.” Rule 23(g)(4)
Plaintiffs counsel easily meet these requirements. Class counsel have done considerable work identifying and investigating the potential claims in this action. Furthermore, co-counsel Muneer Ahmad and Michael Wishnie have litigated representative habeas actions before, and they have experience in Rule 23 class actions. See Shepherd v. McHugh, No. 3:11-cv-641-AWT (D.Conn. filed Dec. 3, 2012); Brizuela v. Feliciano, No. 3:13-cv-226-JBA (D. Conn. filed Feb. 13, 2012). Counsel have also done extensive work litigating complex federal civil rights and immigrant rights cases. See Doe v. United States, No. 13-cv-2802 (S.D.N.Y. filed Apr. 26, 2013); Barrera v. Boughton, No. 3:07-cv-1436-RNC, 2010 WL 1240904 (D.Conn. Mar. 19, 2010); Diaz-Bernal v. Myers, 758 F.Supp.2d 106 (D.Conn.2010); Families for Freedom v. Napolitano, 628 F.Supp.2d 535 (S.D.N.Y.2009); El Badrawi v. Dep’t of Homeland Sec., 579 F.Supp.2d 249 (D.Conn.2008). Finally, counsel have already devoted significant resources to this case, and no evidence suggests that their level of commitment will diminish. No cogent argument can be made that Plaintiffs counsel do not satisfy the relevant requirements or, as discussed previously, that counsel cannot adequately represent the interests of the class.
Ultimately, Plaintiff has shown that this is precisely the type of case that should move forward as a class action. As a result, class certification is appropriate.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs Motion for Class Certification under Fed.R.Civ.P. 23 (Dkt. No. 33) is hereby ALLOWED.
The court certifies the following class: “All individuals who are or will be detained within the Commonwealth of Massachusetts pursuant to 8 U.S.C. § 1226(c) for over six months and have not been afforded an individualized bond hearing.” Plaintiff Reid is appointed class representative, and Nicole Hallet, Muneer Ahmad, Michael J. Wishnie, and the Law Student Interns of the Jerome N. Frank Legal Services Organization at Yale Law School are appointed class counsel pursuant to Fed.R.Civ.P. 23(g).
The parties shall submit a joint proposal setting forth a briefing schedule for the filing of dispositive motions no later than February 25, 2014.
It is So Ordered.