AROLDO RODRIGUEZ DIAZ V. MERRICK GARLAND, ET AL, No. 20-16245 (9th Cir. 2023)
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The Ninth Circuit denied a petition for panel rehearing, and denied a petition for rehearing en banc, in a case in which the panel: (1) reversed a judgment of the district court granting Petitioner's habeas petition challenging his continued immigration detention after an initial bond hearing; and (2) held that due process does not require a second bond hearing.
Judge Paez issued a statement regarding the court's denial. Judge Paez joined by Judges Murguia, Wardlaw, Gould, Berzon, Koh, Sung, Sanchez, H.A. Thomas, Mendoza, and Desai, wrote that the panel opinion conflicts with Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011).
Court Description: Immigration. The panel denied a petition for panel rehearing, and denied on behalf of the court a petition for rehearing en banc, in a case in which the panel: (1) reversed a judgment of the district court granting Rodriguez Diaz’s habeas petition challenging his continued immigration detention under 8 U.S.C. § 1226(a) after an initial bond hearing; and (2) held that due process does not require the agency to provide a second bond hearing at which the government bears the burden of proof by clear and convincing evidence.
In a statement respecting the denial of rehearing en banc, Judge Paez, joined by Judges Murguia, Wardlaw, Gould, Berzon, Koh, Sung, Sanchez, H.A. Thomas, Mendoza, and Desai, wrote that the panel opinion conflicts with Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011). Judge Paez explained that the panel majority distinguished Singh on the basis of the statutory authorization for the immigrant’s detention—a distinction on which Singh’s constitutional holding does not depend. Judge Paez also wrote that the panel applied the traditional balancing test of Mathews v. Eldridge, 424 U.S. 319 (1976), in a manner that conflicts the court’s reasoning in Singh, and fails to account for the high risk of procedural error and the importance of a strong individual liberty interest. Pointing to the panel majority’s express statement that its opinion would not foreclose all as- applied challenges to 8 U.S.C. § 1226(a)’s procedures, Judge Paez wrote that district courts should continue to engage in an individualized analysis of what process the Constitution requires for each petitioning noncitizen.
This opinion or order relates to an opinion or order originally issued on November 21, 2022.
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