JAVIER MARTINEZ V. LOWELL CLARK, No. 21-35023 (9th Cir. 2022)
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Petitioner was detained under 8 U.S.C. Section 1226(c), which provides for mandatory detention of noncitizens with certain criminal convictions. After Petitioner filed a habeas petition, the district court ordered that he receive a bond hearing, reasoning that his prolonged mandatory detention violated due process. An IJ denied bond, and the BIA affirmed. The district court asserted jurisdiction over Petitioner’s claims but denied habeas relief.
Affirming in part and vacating in part the Ninth Circuit held that: 1) federal courts lack jurisdiction to review the discretionary determination of whether a particular noncitizen poses a danger to the community such that he is not entitled to bond; and 2) the district court correctly denied Petitioner’s claims that the BIA erred or violated due process in denying bond.
The court held that the district court lacked jurisdiction to review the determination that Petitioner posed a danger to the community, concluding that dangerousness is a discretionary determination covered by the judicial review bar of 8 U.S.C. Section 1226(e). In concluding that the dangerousness determination is discretionary, the court observed that the only guidance as to what it means to be a “danger to the community” is an agency-created multifactorial analysis with no clear, uniform standard for what crosses the line into dangerousness. As to Petitioner’s remaining claims, the court concluded that the district court had jurisdiction to review them as constitutional claims or questions of law not covered by Section1226(e), but agreed with the district court that they must be denied.
Court Description: Immigration/Habeas/Detention Affirming in part and vacating in part the district court’s denial of Javier Martinez’s habeas petition challenging his immigration detention, and remanding, the panel held that: 1) federal courts lack jurisdiction to review the discretionary determination of whether a particular noncitizen poses a danger to the community such that he is not entitled to bond; and 2) the district court correctly denied Martinez’s claims that the Board of Immigration Appeals erred or violated due process in denying bond. Martinez was detained under 8 U.S.C. § 1226(c), which provides for mandatory detention of noncitizens with certain criminal convictions throughout their removal proceedings. After Martinez filed a habeas petition, the district court ordered that he receive a bond hearing, reasoning that his prolonged mandatory detention violated due process. An IJ denied bond, and the BIA affirmed, concluding that the government sustained its burden to show that Martinez was a danger to the community by clear and convincing evidence. Martinez then brought the instant habeas petition, seeking release. The district court asserted jurisdiction over Martinez’s claims, but denied habeas relief. The panel held that the district court lacked jurisdiction to review the determination that Martinez posed a danger to the community, concluding that dangerousness is a discretionary determination covered by the judicial review MARTINEZ V. CLARK 3 bar of 8 U.S.C. § 1226(e). That section bars federal courts from reviewing “discretionary judgment[s]” regarding the detention under § 1226. In concluding that the dangerousness determination is discretionary, the panel observed that the only guidance as to what it means to be a “danger to the community” is an agency-created multi- factorial analysis with no clear, uniform standard for what crosses the line into dangerousness. Thus, the panel explained it was left without standards sufficient to permit meaningful judicial review. Moreover, the panel explained that dangerousness is a fact-intensive inquiry that requires the equities be weighed, and like the other determinations this court has found to be discretionary (such as whether a crime is “violent or dangerous,” or whether hardship is “exceptional and extremely unusual”), is a subjective question that depends on the identity and the value judgment of the person or entity examining the issue. The panel further explained that the district court erred in relying on Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017), to assert jurisdiction. The panel explained that Hernandez’s class action challenge to the “policy” and “process” over bond hearings is a far cry from Martinez’s challenge to the individualized finding that he is “dangerous.” Martinez contended that the facts of his case are settled and, as in Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (2020), courts can review the application of a legal standard to established facts as a “question of law” not covered by the bar of § 1226(e). The panel explained that the key point in Guerrero-Lasprilla is that courts are not precluded from reviewing the application of legal standards to settled facts, but here there is no legal standard that, if met, requires a certain outcome. The panel also rejected Martinez’s attempt 4 MARTINEZ V. CLARK to reframe the question as an evaluation of whether the undisputed facts satisfy the constitutionally compelled evidentiary standard for dangerousness, explaining that it would not allow Martinez to circumvent § 1226(e)’s jurisdictional bar by cloaking an abuse of discretion argument in constitutional garb. Thus, the panel vacated the district court’s judgment as to dangerousness and remanded with instructions to dismiss. As to Martinez’s remaining claims, the panel concluded that the district court had jurisdiction to review them as constitutional claims or questions of law not covered by §1226(e), but agreed with the district court that they must be denied. First, Martinez contended that the BIA failed to apply the correct burden of proof and review all the evidence in the record in assessing dangerousness. The panel explained that there were no red flags to suggest that the BIA failed to consider all the evidence; rather, the BIA correctly noted the government’s burden and reviewed the record, but concluded that, under the totality of the evidence, he was a danger to the community. Second, Martinez argued that the BIA had to consider alternatives to detention, such as conditional parole, before denying bond. The panel disagreed, explaining that the applicable precedent does not suggest that due process mandates that immigration courts consider release conditions or conditional parole before deciding that an alien is a danger to the community. MARTINEZ V. CLARK 5
The court issued a subsequent related opinion or order on May 30, 2023.
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