JAVIER MARTINEZ V. LOWELL CLARK, ET AL, No. 21-35023 (9th Cir. 2023)
Annotate this CaseThe Ninth Circuit 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 held that federal courts lack jurisdiction to review the discretionary determination that a particular noncitizen in immigration detention poses a danger to the community, and so is not entitled to release on bond. Judge Berzon, joined by Chief Judge Murguia and Judges Wardlaw, W. Fletcher, Paez, Christen, Hurwitz, Koh, Sung, Mendoza, and Desai, disagreed with the Court’s refusal to reconsider the panel opinion en banc.
Court Description: Immigration/Habeas/Detention 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 held that federal courts lack jurisdiction to review the discretionary determination that a particular noncitizen in immigration detention poses a danger to the community and so is not entitled to release on bond.
Respecting the denial of rehearing en banc, Judge Berzon, joined by Chief Judge Murguia and Judges Wardlaw, W. Fletcher, Paez, Christen, Hurwitz, Koh, Sung, Mendoza, and Desai, disagreed with the Court’s refusal to reconsider the panel opinion en banc.
Judge Berzon wrote that the panel’s characterization of the dangerousness determination as discretionary conflicts with longstanding precedents from the criminal bail context holding that dangerousness determinations are mixed questions of law and fact, subject to independent review. Judge Berzon also wrote that the panel’s ruling is at odds with Supreme Court guidance as to the sorts of determinations that constitute mixed questions rather than discretionary ones. Noting the critical importance of judicial review when liberty is at stake, Judge Berzon wrote that the panel’s ruling grants the government unconstrained discretion to determine whether individuals in removal proceedings should be detained based on dangerousness, without judicial backstop.
This opinion or order relates to an opinion or order originally issued on June 15, 2022.
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