AROLDO ALBERTO RODRIGUEZ DIAZ v. MERRICK B. GARLAND, Attorney General; CHAD F. WOLF; DAVID JENNINGS; WENDELL ANDERSON
No. 20-16245
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
NOV 21 2022
D.C. No. 4:20-cv-01806-YGR
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
FILED NOV 21 2022
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
AROLDO ALBERTO RODRIGUEZ DIAZ, Petitioner-Appellee, v. MERRICK B. GARLAND, Attorney General; CHAD F. WOLF; DAVID JENNINGS; WENDELL ANDERSON, Respondents-Appellants.
No. 20-16245
D.C. No. 4:20-cv-01806-YGR
OPINION
Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding
Argued and Submitted December 7, 2021 Submission Vacated February 9, 2022 Resubmitted November 21, 2022 San Francisco, California
Before: Kim McLane Wardlaw, Daniel A. Bress, and Patrick J. Bumatay, Circuit Judges.
Opinion by Judge Bress; Concurrence by Judge Bumatay; Dissent by Judge Wardlaw
SUMMARY*
Immigration/Detention
Reversing a judgment of the district court that granted Aroldo Alberto Rodriguez Diaz‘s habeas petition challenging his continued immigration detention under
After his release from incarceration, Rodriguez Diaz was detained pursuant to
The district court granted Rodriguez Diaz‘s habeas petition in relevant part, ruling that he was constitutionally entitled to another bond hearing, and ordering that the hearing deviate from ordinary agency procedures, in that the government should bear the burden of proving by clear and convincing evidence that he was a flight risk or a danger to the community. After such a hearing, the IJ granted bond and Rodriguez Diaz was released.
Before this court, Rodriguez Diaz claimed that due process requires the procedures that the district court imposed. The panel explained that this court previously applied the canon of constitutional avoidance to interpret other immigration provisions as providing a statutory right to a bond hearing once detention becomes prolonged. Having implied such a right, this court then concluded that, as a matter of due process, the government must bear the burden of proof in such hearings. However, in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), the Supreme Court concluded that the requirements this court had imposed lacked any arguable statutory foundation and did not reach the constitutional issue.
The panel determined that prior precedent did not resolve Rodriguez Diaz‘s due process challenge. The panel also observed that the First and Second Circuits have held that the Due Process Clause entitles
As to the first Mathews factor—the private interest affected by the official action—the panel concluded that this factor weighed in Rodriguez Diaz‘s favor. The panel assumed that Rodriguez Diaz‘s fourteen-month detention after his first bond hearing was “prolonged,” explaining that this court has held that an individual‘s private interest in freedom from prolonged detention is unquestionably substantial, and observing that the government did not seriously dispute that Rodriguez Diaz had a legitimate and reasonably strong private liberty interest under Mathews.
Taking the third Mathews factor next—the government‘s interest—the panel concluded that the government clearly has a strong interest in preventing aliens from remaining in the country in violation of law. Because the enforcement of immigration law serves both a domestic law enforcement and foreign relations function, the Supreme Court has specifically instructed that courts must weigh heavily in the balance that control over matters of immigration is a sovereign prerogative, largely within the control of the executive and the legislature.
As to the second Mathews factor—the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards—the panel concluded that the existing procedures sufficiently protected Rodriguez Diaz‘s liberty interest and mitigated the risk of erroneous deprivation. The panel explained that the agency‘s detention decision was subject to numerous levels of review and that these procedures ensured that the risk of erroneous deprivation would be relatively small.
Accordingly, the panel held that
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
Concurring, Judge Bumatay wrote that to the extent that the court‘s precedent required the panel to decide this case through the lens of Mathews, he fully joined the majority opinion. However, Judge Bumatay concluded that the case would be better decided through the text, structure, and history of the Constitution, rather than through interest balancing. Judge Bumatay concluded that under the original understanding of the Due Process Clause, Rodriguez Diaz‘s claim must fail; as a matter of text, structure, and history, Congress may authorize the government to detain removable aliens throughout their removal proceedings and nothing in the Due Process Clause requires individualized bond determinations beyond what Congress established in
Dissenting, Judge Wardlaw wrote that she would affirm the district court. While Judge Wardlaw agreed that the Mathews test was the appropriate legal framework to apply, she could not agree with the majority‘s balancing of the Mathews factors. Observing that there was no question that the government has a strong interest, Judge Wardlaw wrote that the majority failed to account for the high risk of procedural error and the importance of Rodriguez Diaz‘s strong individual liberty interest. Explaining that this court‘s precedent instructs that Fifth Amendment procedural protections should be evaluated with even more scrutiny the longer an individual‘s liberty is deprived, Judge Wardlaw concluded that after six months, Rodriguez Diaz‘s liberty interest outweighed the government‘s interest, and the procedures afforded to him under
COUNSEL
Sarah S. Wilson (argued), Senior Litigation Counsel; Ernesto Molina, Deputy Director; Jeffrey B. Clark, Acting Assistant Attorney General; Brian Boynton, Principal Deputy Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondents-Appellants.
Piper C. Akol (argued), Central American Resource Center of Northern California, San Francisco, California, for Petitioner-Appellee.
Kelsey A. Morales (argued), Raha Jorjani, and Evelyn Wise, Alameda County Public Defender‘s Office, Oakland, California, for Amici Curiae Alameda County Public Defender‘s Office, the Bronx Defenders, Brooklyn Defender Services, the Legal Aid Society, and the San Francisco Public Defender‘s Office.
Michael Kaufman and Liga Chia, ACLU Foundation of Southern California, Los Angeles, California; Judy Rabinovitz and Michael Tan, ACLU Immigrants’ Rights Project, New York, New York; Ahilan Arulanantham, UCLA School of Law, Los Angeles, California; Jayashri Srikantiah, Stanford Law School Immigrants’ Rights Clinic, Stanford, California; Sean Commons, Sidley Austin LLP, Los Angeles, California; for Amici Curiae ACLU Foundation and the ACLU Foundation of Southern California.
BRESS, Circuit Judge:
Aroldo Rodriguez Diaz, a citizen of El Salvador, was detained pursuant to
We hold that in this case, due process does not require the procedures Rodriguez Diaz would have us impose. The detention of aliens during removal proceedings has long been upheld as a permissible exercise of the political branches’ authority over immigration. Section 1226(a) offers substantial procedural protections to detained persons, and Rodriguez Diaz has not shown that these procedures violate due
I
Rodriguez Diaz came to the United States from El Salvador as a child, entering this country illegally on a date and location unknown. On September 29, 2011, at age fifteen, Rodriguez Diaz was convicted of first-degree residential burglary. He spent about a month in state custody, after which he was transferred to Immigration and Customs Enforcement (ICE).
ICE initiated removal proceedings and charged Rodriguez Diaz with inadmissibility under
In the following years, Rodriguez Diaz accumulated a fairly lengthy criminal record. In 2014, he was charged with battery on a person on school, park, or other property, and battery resulting in serious bodily injury. These charges were later dismissed. In 2016, Rodriguez Diaz was charged with misdemeanor possession of burglary tools. While these charges were pending, he was also charged with possession of cocaine, to which he pleaded no contest in return for dismissal of the burglary tool charges. For the drug charge, Rodriguez Diaz was sentenced to 18 months of probation. Finally, in 2018, Rodriguez Diaz was arrested on seven felony counts relating to a domestic dispute involving his wife and child. He was convicted of spousal battery and intimidation of a witness, and was sentenced to 276 days in jail and 36 months of probation. By this time, ICE had also received a report from local law enforcement that Rodriguez Diaz had admitted to being a gang member on two occasions.
On or about December 18, 2018, Rodriguez Diaz was released from the San Mateo County Jail and taken into ICE custody pursuant to
At the hearing, the IJ questioned Rodriguez Diaz about his alleged gang affiliation. Rodriguez Diaz testified under oath that he never belonged to a gang and that his tattoo, which read “C.L.,” did not stand for the gang “Carnales Locos” but rather “California Life.” The IJ did not find this testimony credible and denied bond on the ground that Rodriguez Diaz was a danger to the community based on his gang membership. Although Rodriguez Diaz could have appealed the IJ‘s decision to the Board of Immigration Appeals (BIA), he did not do so.
On May 13, 2019, the IJ denied Rodriguez Diaz‘s application for CAT relief and ordered him removed. Rodriguez Diaz appealed to the BIA, which dismissed his appeal in October 2019. Rodriguez Diaz then filed in this Court a petition for review of the BIA‘s decision. He also contemporaneously requested a temporary stay of removal, which we granted.
Meanwhile, on September 16, 2019, Rodriguez Diaz‘s conviction for drug possession
Around this time, in February 2020, Rodriguez Diaz also filed a motion for a new bond and custody redetermination hearing before the IJ. As we will explain in greater detail,
The IJ denied the motion on February 24, 2020, finding that Rodriguez Diaz‘s representations about his gang affiliation were not credible given his prior false testimony on the matter, and that Rodriguez Diaz was therefore still a danger to the community. Thus, Rodriguez Diaz had not shown materially changed circumstances justifying a new bond hearing. On March 11, 2020, Rodriguez Diaz appealed the IJ‘s decision to the BIA.
Before the BIA could rule, however, Rodriguez Diaz filed a habeas petition in federal district court under
On April 27, 2020, the district court granted Rodriguez Diaz‘s habeas petition in relevant part. The district court ruled that Rodriguez Diaz was constitutionally entitled to another bond hearing before the IJ. The court further ordered that the hearing deviate from ordinary agency procedures, in that the government should bear the burden of proving by clear and convincing evidence that Rodriguez Diaz was a flight risk or a danger to the community.
In response to the district court‘s order, the IJ conducted a new hearing using the district court‘s prescribed procedures, after which the IJ granted Rodriguez Diaz bond in the amount of $10,000. Rodriguez Diaz posted bond on May 15, 2020, and he was released, having spent approximately a year and a half in immigration detention. The government timely appealed the district court‘s decision, which we review de novo. Miranda v. Anchondo, 684 F.3d 844, 849 (9th Cir. 2012).2
II
Rodriguez Diaz‘s habeas petition emerges from a long line of circuit precedent
We disagree. Key aspects of our cases in this area are no longer good law, and regardless, they do not otherwise govern here. The Supreme Court has now twice overturned our decisions that invoked the canon of constitutional avoidance to interpret other immigration detention provisions as impliedly providing the right to a bond hearing. Singh‘s holding about the appropriate procedures for those bond hearings—which also arose under different statutory provisions than the one here—was expressly premised on the (now incorrect) assumption that these hearings were statutorily authorized. Singh did not purport to establish a freestanding set of constitutionally mandated procedures that would apply to any detained alien. On the contrary, and as we will discuss, neither our Court nor the Supreme Court has ever directly addressed the type of constitutional challenge to alien detention bond procedures that we consider here—whether under
Before we turn to the merits of Rodriguez Diaz‘s claim that he is entitled to additional procedure under the Due Process Clause, we first explain why this question remains an open one.
A
We start with an overview of the statutory scheme governing immigration detention. This background is important in understanding both our precedents and the differences posed by detention under
The provision at issue in this case,
For these individuals, the Attorney General can either “continue to detain the arrested alien,” or “may release the alien on (A) bond of at least $1,500 . . . or (B) conditional parole.”
Sections 1226(a) and 1226(c) also differ as to the procedural protections afforded once an alien is already detained. Under
On top of this, an individual detained pursuant to
Additional provisions supplement
Once an alien has a final removal order that is not subject to a judicial stay, detention authority shifts to
B
We now turn to the case law on which Rodriguez Diaz relies. We conclude that our cases do not resolve Rodriguez Diaz‘s due process challenge to his detention under
1
The relevant line of authority begins with Zadvydas v. Davis, 533 U.S. 678 (2001). There, the Supreme Court addressed whether
Zadvydas determined that the text of
A few years later, in Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008), we confronted a similar challenge to detention under
We acknowledged that the Supreme Court in Demore v. Kim, 538 U.S. 510 (2003), had previously upheld the constitutionality of mandatory detention under
Relying on our earlier decision in Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005), we then applied the canon of constitutional avoidance to interpret
Then, in Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) (Diouf II), we “extend[ed]” the logic of Casas to individuals detained under
Neither Casas nor Diouf II explained what procedures would apply to the bond hearings that we read into
In our next major set of cases in this line, we considered a class action brought on behalf of aliens who had been detained for over six months without a bond hearing under the various statutes we have discussed:
2
The Supreme Court‘s intervention would substantially upend the circuit precedent we have just discussed. In Jennings v. Rodriguez, 138 S. Ct. 830 (2018), the Supreme Court reversed our decision in Rodriguez III, and with it, some of the prior circuit precedent on which Rodriguez III was based. Distinguishing Zadvydas, Jennings held that we misapplied the canon of constitutional avoidance because our interpretations of
the end of applicable proceedings,” as opposed to under the authority of
As to
The Supreme Court in Jennings did not reach the alleged unconstitutionality of immigration detention absent the procedural requirements we had read into the statute, and instead remanded for consideration of the constitutional question in the first instance. Id. at 851. We in turn remanded to the district court, which has not yet issued a decision. See Rodriguez v. Marin, 909 F.3d 252, 255 (9th Cir. 2018); Rodriguez v. Barr, No. 20-55770, 2021 WL 4871067 (9th Cir. Oct. 19, 2021).
Following Jennings, we re-examined the applicable procedures for immigration detention under
The Supreme Court again reversed, holding that under
Most recently, in Avilez v. Garland, 48 F.4th 915 (9th Cir. 2022), we revisited our holding in Casas-Castrillon that aliens who are detained under
This meant that under circuit precedent, see Prieto-Romero, 534 F.3d at 1062, an alien detained under
C
Our tour through these cases shows they do not resolve Rodriguez Diaz‘s procedural due process challenge to his detention under
Most obviously, after the Supreme Court‘s decisions in Jennings and Arteaga-Martinez, it remains undetermined whether the Due Process Clause requires additional bond procedures under any immigration detention statute. Although we previously concluded that bond hearings and certain procedures were statutorily required under
To the extent that any parts of Singh, Casas, Diouf II, and Rodriguez II remain good law—an issue we need not decide—those cases in relevant part addressed detention under
As our own precedents demonstrate,
Indeed, while our past precedents mandated certain procedures for detainees under
Consistent with that observation, we in fact cited
For all these reasons, prior precedent does not resolve the due process challenge to
III
Unencumbered by binding circuit precedent, we now address head-on the question presented in this case: does the Due Process Clause entitle Rodriguez Diaz to a second bond hearing at which the government bears the burden of proof by clear and convincing evidence? We hold that the Due Process Clause does not so require.
As a threshold issue, we note some ambiguity about the precise nature of Rodriguez Diaz‘s claims, in that it is unclear whether Rodriguez Diaz challenges
At oral argument, Rodriguez Diaz clarified that he is seeking a ruling that would mandate bond hearings for all aliens detained under
A
We begin with an overview of how other courts have approached this issue. Although our circuit has yet to address this type of challenge (as we explained above), other circuits have broached the issue. And they have divided over the constitutionality of
The First and Second Circuits have held that the Due Process Clause entitles
In Hernandez-Lara v. Lyons, 10 F.4th 19 (1st Cir. 2021), the First Circuit considered a habeas petition brought by an alien who had been detained under
The First Circuit held that the proper remedy was a new bond hearing at which the government would bear the burden of proof. Id. at 39-41. Specifically, the government would need to prove by clear and convincing evidence that the alien was a danger to the community, but need only prove by a preponderance of the evidence that she was a flight risk. Id. at 40. The reason for this difference in standards of proof, the court explained, is that there is “less risk of error” regarding flight risk because detainees “possess knowledge of many of the most relevant factors,” whereas “the government has ample and better access to evidence of dangerousness.” Id. However, the court declined to decide when detention became sufficiently “prolonged” to require this remedy. Id. at 30 n.4.
Judge Lynch forcefully dissented on the due process question. She maintained that “[t]he current procedures provide detained noncitizens constitutionally sufficient notice and opportunity to be heard,” and that the majority was “arrogat[ing] to the judiciary control over immigration bond procedures.” Id. at 53-54, 57 (Lynch, J., dissenting); see also id. at 55 (“[T]he majority‘s due process analysis is contrary to Supreme Court precedent, contrary to precedent from other circuits, and wrong.“).
The Second Circuit, too, concluded that
The Second Circuit applied Mathews in a similar manner as the First Circuit and held that once detention under
On the other side of the question are the Third and Fourth Circuits. The Third Circuit
The Third Circuit also rejected Borbot‘s argument that his situation was analogous to that of an alien subject to prolonged mandatory detention under
The Fourth Circuit agrees with the Third Circuit. See Miranda v. Garland, 34 F.4th 338, 358 (4th Cir. 2022). Applying Mathews, the court reasoned that, first, aliens are “due less process when facing removal hearings than an ordinary citizen.” Id. at 359. Second,
As we will now explain, we find the reasoning of the Third and Fourth Circuits and Judge Lynch‘s dissent most consistent with the principles and precedents governing the constitutionality of immigration detention.
B
“The
The recognized liberty interests of U.S. citizens and aliens are not coextensive: the Supreme Court has “firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens.” Demore, 538 U.S. at 522. That is because “any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government,” which are core sovereign powers. Id. (quoting Mathews v. Diaz, 426 U.S. 67, 81 n.17 (1976)); see also id. (“The liberty rights of the aliens before us here are subject to limitations and conditions not applicable to citizens.“) (quoting Zadvydas, 533 U.S. at 718 (Kennedy, J., dissenting)). The Supreme Court has accordingly long upheld Congress‘s authorization of “detention during deportation proceedings as a constitutionally valid aspect of the deportation process.” Id. at 523; see also Flores, 507 U.S. at 306 (“Congress has the authority to detain aliens suspected of entering the country illegally pending their deportation hearings.“).
The government contends that the unique constitutional treatment of detained aliens means that we should not apply the traditional test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), in assessing Rodriguez Diaz‘s due process claims. Although the government is not specific about the test we should apply instead, it appears to desire a framework that focuses more exclusively on the government‘s asserted interests in detaining aliens who are subject to removal. As the government points out, the Supreme Court when confronted with constitutional challenges to immigration detention has not resolved them through express application of Mathews. See, e.g., Demore, 538 U.S. at 523, 526-29; see also Dusenbery v. United States, 534 U.S. 161, 168 (2002) (“[W]e have never viewed Mathews as announcing an all-embracing test for deciding due process claims.“).
While we acknowledge the government‘s arguments, we note that when considering due process challenges to
Ultimately, Mathews remains a flexible test that can and must account for the heightened governmental interest in the immigration detention context. See id. at 34; Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 716 (9th Cir. 2011) (stating that Mathews “is not a bright line test, but is flexible depending on the circumstances“) (quoting Foss v. Nat‘l Marine Fisheries Serv., 161 F.3d 584, 589 (9th Cir. 1998)). And as we will explain, Rodriguez Diaz‘s claims fail even under the Mathews test, which is presumably more favorable to him than the test the government seeks. Thus, we assume without deciding that Mathews applies here.
C
Under Mathews, the “identification of the specific dictates of due process generally requires consideration of three distinct factors.” 424 U.S. at 334-35. “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id. at 335 (emphasis added).
The first Mathews factor, Rodriguez Diaz‘s private interest, weighs in his favor. Because, by the time of the district court decision, Rodriguez Diaz was detained for fourteen months following his first bond hearing, we will assume that his detention qualifies as “prolonged” in a general sense. See Diouf II, 634 F.3d at 1091 (holding that once “the alien has been detained for approximately six months,” “continuing detention becomes prolonged“); Zadvydas, 533 U.S. at 701 (recognizing six months as a presumptively constitutional removal period). We have also held, more generally, that an individual‘s private interest in “freedom from prolonged detention” is “unquestionably substantial.” Singh, 638 F.3d at 1208. Even though Singh and Diouf II do not govern this case, the government for its part does not seriously dispute that Rodriguez Diaz has a legitimate and reasonably strong private liberty interest under Mathews.
But it is important not to overstate the strength of Rodriguez Diaz‘s showing under the first Mathews factor, either. With the possible exception of our now-overruled decision in Rodriguez III, 804 F.3d at 1084-85, when we have previously referred to detentions longer than six months as “prolonged,” we have done so in the context of detentions for which no individualized bond hearings had taken place at all because the statutes on their faces did not allow for them. See, e.g., Aleman Gonzalez, 955 F.3d at 772; Diouf II, 634 F.3d at 1091-92 & n.13. Here, Rodriguez Diaz received a bond hearing approximately two months after he was detained under
We also cannot overlook that most of the period of Rodriguez Diaz‘s detention arose from the fact that he chose to challenge before the BIA and later this Court the IJ‘s denial of immigration relief. See Demore, 538 U.S. at 531 n.14 (“‘[T]he legal system is replete with situations requiring the making of difficult judgments as to which course to follow,’ and, even in the criminal context, there is no constitutional prohibition against requiring parties to make such choices.“)
In short, in evaluating Rodriguez Diaz‘s interests under the first prong of the Mathews analysis, we cannot simply count his months of detention and leave it at that. We must also consider the process he received during this time, the further process that was available to him, and the fact that his detention was prolonged due to his decision to challenge his removal order. Indeed, as the government points out, by Rodriguez Diaz‘s (and the dissent‘s) logic,
Taking the third Mathews factor next, the government clearly has a strong interest in preventing aliens from “remain[ing] in the United States in violation of our law.” Demore, 538 U.S. at 518 (quotations omitted). Enforcement of our immigration law serves both a domestic law enforcement and foreign relations function. The Supreme Court has thus specifically instructed that in a Mathews analysis, we “must weigh heavily in the balance that control over matters of immigration is a sovereign prerogative, largely within the control of the executive and the legislature.” Plasencia, 459 U.S. at 34. “Over no conceivable subject is the legislative power of Congress more complete.” Flores, 507 U.S. at 305 (quotations and alterations omitted).
This is especially true when it comes to determining whether removable aliens must be released on bond during the pendency of removal proceedings. The government has an obvious interest in “protecting the public from dangerous criminal aliens.” Demore, 538 U.S. at 515 (noting the government‘s justifications for the mandatory detention policy in
These are interests of the highest order that only increase with the passage of time. The longer detention lasts and the longer the challenges to an IJ‘s order of removal take, the more resources the government devotes to securing an alien‘s ultimate removal. The risk of a detainee absconding also inevitably escalates as the time for removal becomes more imminent.
The second Mathews factor is “the risk of an erroneous deprivation of [Rodriguez Diaz‘s] interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.” Mathews, 424 U.S. at 335. Here, we conclude that the existing agency procedures sufficiently protected Rodriguez Diaz‘s liberty interest and mitigated the risk of erroneous deprivation.
Pursuant to
Although the IJ‘s discretionary bond determination was not reviewable in federal court, see
Moreover, as we noted above, throughout the course of his detention, Rodriguez Diaz has had the right to seek an additional bond hearing if his circumstances materially change. See
In short, the agency‘s decision to detain Rodriguez Diaz was subject to numerous levels of review, each offering Rodriguez Diaz the opportunity to be heard by a neutral decisionmaker. These procedures ensured that the risk of erroneous deprivation would be “relatively small.” See Yagman v. Garcetti, 852 F.3d 859, 865 (9th Cir. 2017) (upholding a scheme that offered “an opportunity to present evidence and arguments” that would be “considered by the reviewer“). The process that Rodriguez Diaz received was substantially more extensive than in those cases in which we (in error) invoked the doctrine of constitutional avoidance to require additional procedures. See Casas, 535 F.3d at 945 (seven years of detention with no opportunity to seek release on bond, and no indication of opportunity for renewed hearing based on changed circumstances); Singh, 638 F.3d at 1203 (same for 16 months of detention); Rodriguez III, 804 F.3d at 1066, 1072 (same for nearly four and a half years of detention for one class member).
We also note that Rodriguez Diaz received further procedural protections on the merits of his applications for relief from removal. This included the opportunity to seek a temporary stay of removal, which he sought and received. Although further review of his removal order would take additional time and could thereby prolong his detention, Rodriguez Diaz in this case has not demonstrated that the fact of the review process following its ordinary course itself created a due process violation. See Demore, 538 U.S. at 531 n.14; Prieto-Romero, 534 F.3d at 1063-65 & n.9.
D
In response, Rodriguez Diaz advances several reasons why he believes
inadequate. None is persuasive.
1
First, Rodriguez Diaz claims that he should not have borne the burden of proof at his initial bond hearing. In support of this position, he points to cases requiring the government to justify the necessity of civil confinement for U.S. citizens in various contexts. See, e.g., Foucha v. Louisiana, 504 U.S. 71, 71, 80-82 (1992) (involuntary psychiatric commitment of individuals acquitted of crimes after presenting an insanity defense); United States v. Salerno, 481 U.S. 739, 750-52 (1987) (pretrial detention); Addington v. Texas, 441 U.S. 418, 425-27 (1979) (involuntary commitment to a mental hospital).
It is true that we relied on this line of cases in Singh. Singh, 638 F.3d at 1203-04. But for the reasons we have explained, Singh does not govern here. And even assuming Singh could remain good law in the
We have not previously held that cases involving heightened burdens of proof for the deprivation of liberty interests of U.S. citizens apply coextensively to alien detainees who have been subject to
In that respect, the Supreme Court has been clear: the Constitution permits “rules that would be unacceptable if applied to citizens.” Demore, 538 U.S. at 521; see also Miranda, 34 F.4th at 359. That established principle is particularly relevant here when the Supreme Court has also previously upheld immigration detention schemes that offered no opportunity for a bond hearing, much less one in which the government bore the burden of proof. See Demore, 538 U.S. at 513 (no bond hearing for
Nevertheless, amici supporting Rodriguez Diaz attempt to expand on this part of his argument. They claim that placing the burden on the alien creates an unacceptably high risk of erroneous deprivation because detainees “face tremendous language and cultural barriers,” have “difficulty . . . obtaining evidence,” and “often lack financial resources to hire an attorney.” The dissent makes some of these same points.
Whatever the merit of these arguments in other cases—and without deciding
Here, Rodriguez Diaz was represented by an attorney for his initial bond hearing as well as his request for a new hearing. He states that he is “more comfortable in English than Spanish.” And he was able to gather considerable evidence in support of his motion for a new bond hearing, including five declarations from family members, twenty letters of support from other individuals, six certificates of completion for rehabilitation courses, his marriage license, his wife‘s medical records, his son‘s birth record, and documents bearing on his criminal record.
Rodriguez Diaz has not alleged difficulty obtaining any piece of evidence, much less evidence that would be in the government‘s hands. Moreover, to the extent such information existed and Rodriguez Diaz was unable to obtain it,
2
Second, Rodriguez Diaz objects to the need to show changed circumstances in order to receive a second bond hearing. He argues that his liberty interest increases over time as he remains detained, and so at some point, he should become entitled to a new bond hearing regardless of whether his circumstances have changed.
The problem with this argument is that on these facts, “duration alone” cannot “sustain a due process challenge by a detainee who has been afforded the process contemplated by
3
Finally, Rodriguez Diaz claims that the IJ‘s denial of his requests for bond “show[] that the procedures in place did result in an erroneous deprivation of Mr. Rodriguez Diaz‘s private liberty interest.” But this is merely a disagreement
The dissent makes a similar mistake in reasoning that because the IJ in complying with the district court‘s incorrect ruling allowed Rodriguez Diaz to be released on bond, “in real life terms the risk that Rodriguez Diaz was erroneously deprived of his liberty interest was one hundred percent.” That assertion assumes the conclusion as to whether placing a “clear and convincing” burden on the government was proper in the first place. For the reasons we have explained, it was not. That different procedures can produce different results does not prove that the procedures governing the IJ‘s earlier denial of bond violated due process or that the IJ‘s earlier decision was in error. See Ching v. Mayorkas, 725 F.3d 1149, 1156 (9th Cir. 2013) (“It is process that the procedural due process right protects, not the outcome.“).
4
In sum, while Rodriguez Diaz‘s private interest and the government‘s interests are both substantial here, the private interest of a detained alien under
Although Congress could decide to provide additional process to persons like Rodriguez Diaz, the Due Process Clause does not mandate procedures that reduce the risk of erroneous deprivation to zero, a result that is beyond grasp. As we have held, the Constitution does not “require the government to undertake every possible effort to mitigate the risk of erroneous deprivation and the potential harm to the private party.” Kashem v. Barr, 941 F.3d 358, 379 (9th Cir. 2019) (quotations omitted). Instead, the Supreme Court has told us, “[t]he role of the judiciary is limited to determining whether the procedures meet the essential standard of fairness under the Due Process Clause and does not extend to imposing procedures that merely displace congressional choices of policy.” Landon, 459 U.S. at 34-35. That is the approach we have followed here. For the reasons given,
In so holding, we do not foreclose all as-applied challenges to
We have no occasion to consider the constitutional limits of prolonged immigration detention because Rodriguez Diaz has not demonstrated a due process violation in this case. And we note that even when there are deficiencies in individual
* * *
We reverse the judgment of the district court and remand for dismissal of Rodriguez Diaz‘s habeas petition.
REVERSED AND REMANDED.
BUMATAY, Circuit Judge, concurring:
To the extent that our court‘s precedent requires us to decide this case through the lens of Mathews v. Eldridge, 424 U.S. 319 (1976), I fully join Judge Bress‘s fine opinion. Under the Mathews balancing test, due process does not require aliens detained under
But I think this case is better decided through the text, structure, and history of the Constitution, rather than through interest balancing. In resolving similar immigration detention challenges, the Supreme Court has not relied on the Mathews framework. See, e.g., Demore v. Kim, 538 U.S. 510, 521-31 (2003); Reno v. Flores, 507 U.S. 292, 299-315 (1993). And the Court has recently backed away from multi-factorial “grand unified theor[ies]” for resolving legal issues. Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2427 (2022) (simplified). Maybe because the outcome of such tests often “depends to a great extent upon how the Court subjectively views the underlying interests at stake.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 562 (1985) (Rehnquist, J., dissenting).
And under the original understanding of the Due Process Clause, Aroldo Rodriguez Diaz‘s claim that he is entitled to periodic supplemental bond hearings in which the government bears the burden of proof by clear and convincing evidence must fail. As a matter of text, structure, and history, Congress may authorize the government to detain removable aliens throughout their removal proceedings. Nothing in the Due Process Clause requires individualized bond determinations beyond what Congress has established in
I.
A.
Under our Constitution, “the admission and exclusion of foreign nationals is a fundamental sovereign attribute exercised by the Government‘s political departments largely immune from judicial control.” Trump v. Hawaii, 138 S. Ct. 2392, 2418 (2018) (simplified). Because such policies implicate national security, foreign affairs, and political and economic judgments, judges may not serve as “Platonic Guardians” of our nation‘s immigration policies. E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 687 (9th Cir. 2021) (Bumatay, J., dissenting from the denial of rehearing en banc) (quoting L. Hand, The Bill of Rights 73 (1958)). Instead, decisions about aliens are “of a character more appropriate to either the Legislature or the Executive than to the Judiciary,” Mathews v. Diaz, 426 U.S. 67, 81 (1976), and so our duty is to largely defer to the political branches on these questions. In other words, in the immigration context, “Congressional powers are at their apex and judicial powers are at their nadir.” Hernandez-Lara v. Lyons, 10 F.4th 19, 54 (1st Cir. 2021) (Lynch, J., dissenting).
That judicial deference reaches back to the start of our Nation. Prompted by the controversial Alien Act of 1798, our Founding generation grappled with the scope of constitutional protections for aliens. See Gerald L. Neuman, Strangers to the Constitution 52-63 (1996). The Act gave the President the power to expel any alien he found “dangerous to the peace and safety of the United States” or “suspect[ed] [of being] concerned in any treasonable or secret machinations against the government.” Alien Act, ch. 58, 1 Stat. 570 (1798). And that broad authority gave rise to three general views of the Constitution‘s relationship to aliens. Neuman at 52-63.
On one end, the Federalists supported the constitutionality of the Act because, in their view, aliens were not members of the political community entitled to constitutional protections. Id. at 52-56. For example, George Keith Taylor, a Federalist member of the Virginia House of Delegates, explained that “aliens[,] not being a party to the [constitutional] compact, were not bound by it to the performance of any particular duty, nor did it confer upon them any rights.” Debate on Virginia Resolutions, reprinted in the Virginia Report of 1799-1800 34 (1850). And since an alien only had the privilege to stay in the country, the Federalists argued that removal from the country did not “deprive the alien of liberty or any other right” and “procedural rights d[id] not attach” to removal proceedings. Neuman at 54.
At the other end, the Jeffersonian Democratic-Republicans viewed the Act as an erosion of the constitutional rights of aliens. Id. at 53-54, 57-60. Relying on constitutional provisions that broadly apply to “person[s],” they emphasized that aliens were entitled to constitutional protections. Id. at 57. And they thought the Act did not provide those protections because it failed to provide aliens “with all the accouterments of a criminal trial.” Sessions v. Dimaya, 138 S. Ct. 1204, 1245 (2018) (Thomas, J., dissenting). For instance, then-Representative Edward Livingston argued:
[A]lien friends . . . residing among us, are entitled to the protection of our laws, and that during their residence they owe a temporary allegiance to our Government. If they are accused of violating this allegiance, the same laws which interpose in the case of a citizen must determine the truth of the accusation,
and if found guilty they are liable to the same punishment.
8 Annals of Cong. 2012 (1798). And even if aliens were not full “parties to the Constitution,” James Madison expressed that “it will not be disputed, that as they owe, on one hand, a temporary obedience, they are entitled, in return, to their protection and advantage.” Madison‘s Report on the Virginia Resolutions, reprinted in 4 The Debates, in the Several State Conventions on the Adoption of the Federal Constitution 556 (Jonathan Elliot 2d ed. 1888).
From this debate arose a more moderate Federalist position. John Marshall, in rebutting the Democratic-Republicans’ arguments, no longer denied the constitutional rights of aliens, but defended the Act on narrower grounds. “Certainly a vested right is to be taken from no individual without a solemn trial,” Marshall said, “but the right of remaining in our country is vested in no alien; he enters and remains by the courtesy of the sovereign power, and that courtesy may at pleasure be withdrawn.” The Address of the Minority in the Virginia Legislature to the People of that State; containing a Vindication of the Constitutionality of the Alien and Sedition Laws 9-10 (1799). So while Marshall seemingly accepted the extension of constitutional rights to aliens, he also noted that the removal context is a unique enclave within the Constitution. And although “no obvious immediate winner” emerged from the debates on the Constitution‘s relationship to aliens, the Marshall view has remained most influential. Neuman at 60.
As Congress began legislating in the immigration context in the late 19th century,1 the Supreme Court largely adopted the moderate Marshall position. In the 1880s, the Court recognized that aliens are “persons” under the Fourteenth Amendment, entitled to the Amendment‘s due process protections. Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). But a few years later, the Court affirmed the federal government‘s power to deport them without the protections of the criminal process. Fong Yue Ting v. United States, 149 U.S. 698, 724-32 (1893). The Court accepted that “[aliens] are entitled, so long as they are permitted by the government of the United States to remain in the country, to the safeguards of the constitution, and to the protection of the laws.” Id. at 724. But it also said that aliens “remain subject to the power of [C]ongress to expel them, or to order them to be removed and deported from the country, whenever, in its judgment, their removal is necessary or expedient for the public interest.” Id. And the Court made the point even clearer when it said that “[C]ongress, under the power to exclude or expel aliens, might have directed any [alien] found without a certificate of residence to be removed out of the country b[y] executive officers, without judicial trial or examination.” Id. at 728.
The moderate Federalist position thus “became part of the American constitutional law concerning immigration,” and “[i]t has persisted to this day, making deportation an anomalous qualification to the general recognition of aliens’ constitutional rights within the United States territory.” Neuman at 62. Indeed, it is now firmly established that,
when it comes to immigration, “Congress may make rules as to aliens that would be unacceptable if applied to citizens.” Demore, 538 U.S. at 522.
Concomitant with the political branches’ broad authority to regulate immigration matters comes the power to detain aliens during removal proceedings. For over a century, whenever Congress has granted the Executive authority to detain aliens pending removal proceedings, the Supreme Court has repeatedly upheld such detention as consistent with the Constitution.
The Court made its first mark in this area in Wong Wing v. United States, 163 U.S. 228 (1896). There, aliens of Chinese descent were sentenced to one year of imprisonment and hard labor before deportation under the 1892 extension of the Chinese Exclusion Act. Id. at 230-38. The Court held that the punishment, imposed against aliens without a judicial trial, was unconstitutional under the Fifth Amendment. Id. at 237-38. But it also went out of its way to separate criminal punishment from temporary detention during removal proceedings. The Court thought “it clear that detention or temporary confinement, as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens, would be valid.” Id. at 235. Otherwise, “[p]roceedings to exclude or expel would be vain if those accused could not be held in custody pending the inquiry into their true character, and while arrangements were being made for their deportation.” Id.
Over a half-century later, the Court addressed the constitutionality of detaining an alien without bond during removal proceedings. Carlson v. Landon, 342 U.S. 524 (1952). There, the Internal Security Act of 1952 permitted the Attorney General to detain aliens charged with membership in the Communist Party or other prohibited classes without bail pending determination of deportability. Id. at 528-29. Several detained aliens claimed that due process required individualized determinations that their detention was necessary to protect the country or to secure their presence at deportation proceedings. Id. at 528-34. The Court rejected the argument because “[d]etention is necessarily a part of this deportation procedure.” Id. at 538. Based on the 1952 Act, it held that the Attorney General properly had the discretionary power to detain aliens without bond during the deportation process, even without individualized determinations of flight risk or dangerousness. Id. Detention was justified simply “by reference to the legislative scheme” enacted by Congress—in that case, based on the Legislature‘s decision “to eradicate the evils of Communist activity.” Id. at 543. In other words, when Congress granted the Executive broad discretion to detain aliens pending removal, the Court deferred to that decision.
Near the turn of this century, the Court rejected due process challenges to a regulation placing unaccompanied alien juveniles in detention or other government-approved facilities unless they could be released into the custody of their parents, relatives, or legal guardians. Flores, 507 U.S. at 297, 301-15. In upholding the detention of the juvenile aliens, the Court reaffirmed the political branches’ broad power over aliens. As the Court said, “[i]f we harbored any doubts as to the constitutionality of institutional custody over unaccompanied juveniles, they would surely be eliminated as to those juveniles . . . who are aliens.” Id. at 305. That‘s because “Congress has the authority to detain aliens suspected of entering the country illegally pending their deportation hearings.” Id. at 306. And Congress had eliminated any “presumption of release pending deportation“—instead, committing that determination to the discretion of the Executive
And most recently, the Court denied a constitutional attack on the mandatory detention of aliens convicted of certain criminal offenses during removal proceedings under
To be sure, the Court has distinguished the detention of aliens that “did not serve its purported immigration purpose.” Id. at 527. In Zadvydas v. Davis, 533 U.S. 678 (2001), the Court dealt with aliens challenging their detention following final orders of deportation, but for which removal was “no longer practically attainable.” Id. at 690. Because these aliens were unlikely to be removed, their “detention no longer b[ore] a reasonable relation to the purpose for which the individual was committed.” Id. (simplified). “[A] serious constitutional problem” would then arise, the Court said, if the potentially indefinite and permanent detention of aliens lost any relation to an immigration purpose, such as preventing flight before removal. Id. at 692. Indeed, the Court emphasized that “post-removal-period detention, unlike detention pending a determination of removability . . . has no obvious termination point.” Id. at 697 (emphasis added).
This history provides a clear lesson. Consistent with due process, Congress may grant the Executive the authority to detain aliens during removal proceedings—with or without bond hearings. And so long as the government follows reasonable, individualized determinations to ensure that the alien is properly in removal proceedings, due process does not require more bond hearings even after a prolonged period.
That‘s not to say, however, that there aren‘t outer limits to this principle. If the government were to “unreasonabl[y] delay” removal proceedings, “it could become necessary . . . to inquire whether the detention is not to facilitate [removal], or to protect against risk of flight or dangerousness, but to incarcerate for other reasons.” Demore, 538 U.S. at 532-33 (Kennedy, J., concurring).
With this understanding of immigration detention within the constitutional framework, I turn to
C.
Given this legal backdrop, Rodriguez Diaz‘s due process rights have not been violated. Through
Layer 1: When an alien is detained, Immigration & Customs Enforcement makes an initial, individualized custody determination.
- ICE may release the alien if it is determined that the alien is neither a danger to the community nor a flight risk. Id.
Layer 2: If ICE denies bond, the alien can seek an individualized bond hearing before an immigration judge at any time before a final order of removal.
- In making the bond determination, the IJ considers nine factors that inquire into the individual circumstances of the alien. See In re Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006).
Layer 3: If the IJ concludes that the alien should remain detained, the alien can appeal the decision to the BIA.
Layer 4: The alien can also request another bond hearing based on materially changed circumstances.
On top of all of that, aliens may seek limited habeas review in federal district court of any “questions of law or constitutional questions.” Martinez v. Clark, 36 F.4th 1219, 1224 (9th Cir. 2022).
With all this process, Rodriguez Diaz is not entitled to more under the Fifth Amendment. He makes no claim that
II.
Because both my reading of the text, structure, and history of the Constitution and the majority opinion‘s faithful application of Mathews lead to the same result, I concur in the opinion and judgment.
WARDLAW, Circuit Judge, dissenting:
I would affirm the district court‘s decision that the Due Process Clause entitled Rodriguez Diaz to a new bond hearing at which the government bore the burden of proof by a clear and convincing standard of evidence, in light of Rodriguez Diaz‘s strong, constitutionally protected liberty interests at stake. See Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” (citation omitted)). While I agree that the test developed in Mathews v. Eldridge, 424 U.S. 319 (1976), is the appropriate legal framework to determine whether there was a due process violation here, I cannot agree with the majority‘s balancing of the Mathews factors. Although there is no question that the government has a strong interest, the majority fails to account for the high risk of procedural error and the importance of Rodriguez Diaz‘s strong individual liberty interest. I respectfully dissent.
The majority opinion omits the details of Rodriguez Diaz‘s life and childhood, stating only that he “enter[ed] this country illegally on a date and location unknown.” Majority Op. 1-2. Aroldo Alberto Rodriguez Diaz, a Salvadoran national, fled El Salvador as a child. Since he arrived in the United States as a young boy, Rodriguez Diaz has developed strong ties here. His wife and infant son, both of whom are United States citizens, and his entire extended family, reside in the U.S.
As a child, Rodriguez Diaz spent most of his life separated from his parents. After a difficult childhood, Rodriguez Diaz struggled to adjust to life in a new country. He was often reprimanded at school for failing at schoolwork that was not in his native language. As a teenager, he was reunited with his parents from whom he had been separated for much of his childhood, but as a result, he regularly faced beatings by his father at home. In search of social protection in a dangerous neighborhood and
acceptance from other sources, Rodriguez Diaz became involved with a local gang, the Carnales Locos.
At fifteen years old, Rodriguez Diaz was arrested, transferred to the custody of Immigration and Customs Enforcement (ICE), and placed into removal proceedings. He was transferred again to the custody of the Office of Refugee Resettlement, and because he was a minor, he was released.
After his release, Rodriguez Diaz was arrested for various incidents including possession of burglary tools, possession of cocaine, and battery. He was then referred to Camp Glenwood, a program for troubled juveniles, where he completed his GED. After he was released at age eighteen, he stopped participating in the activities of the Carnales Locos. When he expressed his desire to leave, he was threatened that he would face “consequences” from other members.
In 2017, after leaving the Carnales Locos, he met Stephanie Delmonico Rodriguez, and they married and had a son, born on April 27, 2018. On August 3, 2018, Rodriguez Diaz discovered that Delmonico had been unfaithful to him when he found her in another man‘s car with his son. Shortly after the incident, he called Delmonico on the phone. During the phone call, he called her several names and made threats against her.
After the incident, Rodriguez Diaz was arrested and taken into criminal custody and sentenced to nearly a year in jail and eighteen months’ probation. On or about December 18, 2018, ICE re-arrested Rodriguez Diaz following his release from San Mateo County Jail. He was then taken into ICE custody pursuant to
At his first bond hearing on February 27, 2019, the Immigration Judge (IJ) evaluated whether Rodriguez Diaz presented a flight risk or danger to the community, and denied bond based on Rodriguez Diaz‘s prior criminal history. During the hearing, in accordance with Board of Immigration Appeals (BIA) precedent, the IJ placed the burden on Rodriguez Diaz to show that he was not a flight risk or danger to the community. The IJ found that Rodriguez Diaz had not met his burden of showing that he did not pose a danger to the community because Rodriguez Diaz‘s testimony about his gang involvement was not credible.
While in immigration detention, following his initial bond hearing, Rodriguez Diaz made extensive efforts at rehabilitation: he completed courses on Anger Management,
On May 13, 2019, the IJ denied Rodriguez Diaz‘s application for protection under the Convention Against Torture (CAT) and ordered him removed. However, in the decision the IJ indicated that “the facts and circumstances surrounding [Rodriguez Diaz‘s] conviction” do not justify a “presumption that he is a danger to the community” because his threats to his wife were “via the telephone and [he] did not do anything further to carry out th[ese] threat[s].”
On September 16, 2019, the Superior Court of San Mateo vacated Rodriguez Diaz‘s conviction for violation of
After being detained for over a year, on or about February 4, 2020, Rodriguez Diaz requested a new bond hearing, pursuant to
On February 24, 2020, the IJ rejected Rodriguez Diaz‘s request for a new bond hearing. In a memorandum denying the motion on March 26, 2022, the IJ acknowledged the evidence Rodriguez Diaz submitted regarding his rehabilitation and vacated conviction, but found that Rodriguez Diaz‘s testimony that he had left the gang was not credible because he had lied about his gang membership in the past. Therefore, the IJ found that Rodriguez Diaz had not shown materially changed circumstances justifying a new bond hearing.
On March 11, 2020, Rodriguez Diaz appealed the denial of a new bond hearing to the BIA, and then subsequently filed a petition for writ of habeas corpus, based on his lengthy detention and the IJ‘s denial of bond, despite his showing of materially changed circumstances.
On April 27, 2020, the district court granted Rodriguez Diaz a new bond hearing, holding that due process entitled him to a new bond hearing at which the government bore the burden of proof by a standard of clear and convincing evidence. In accordance with the district court‘s order, on May 13, 2020, the IJ held a bond hearing at which the government bore the burden of proof. At the hearing, the IJ granted Rodriguez Diaz‘s request for release and ordered a $10,000 bond. Rodriguez Diaz posted bond and was released on May 15, 2020.
II.
The
The
In the immigration context, the government is able to detain an individual during the pendency of his removal proceedings under
The statute under which Rodriguez Diaz was detained,
The question before us is whether the procedures afforded to Rodriguez Diaz under
III.
The case law discussing detainees’ procedural rights under
Without binding precedent to rely upon, the majority applies the traditional balancing test set forth in Mathews to determine whether Rodriguez Diaz‘s due process rights were violated, acknowledging that other circuits have applied the Mathews test when considering due process challenges to
However, I disagree with the majority‘s balancing of and conclusion as to the application of the Mathews factors. While the majority is correct that there is no binding precedent on the constitutional issue here, it disregards key language throughout our past decisions that provides guidance on how best to apply the Mathews factors to ensure the procedures under
For example, our discussion regarding the Mathews factors in Singh is informative on how to balance the competing interests here.2 Singh, 638 F.3d at 1208-09. In Singh, we held that due process required that the detainee receive a bond hearing in which the government had to show that the “continued detention [was] justified” by a clear and convincing evidence standard. Id. at 1200. Significantly, in determining there was a due process violation under the Mathews balancing test, we emphasized the “unquestionably substantial” weight of a detained person‘s liberty interest in “freedom from prolonged detention.” Id. at 1208.
Further, in its balancing of the Mathews factors, the majority disregards case law that guides us to view an individual‘s liberty interest in freedom from detention on a continuum, with the amount of due process necessary to protect that liberty interest increasing over time. The Supreme Court has recognized that when confinement becomes prolonged, due process requires enhanced protections to ensure detention remains reasonable in relation to its purpose. For example, in Demore v. Kim, 538 U.S. 510, 529 (2003), the Supreme Court held that although a detained person‘s interest in his liberty is initially outweighed by the government‘s interest, the balance of interests will eventually flip because a detainee‘s interest in his liberty continues to increase over time. See id. (holding that it was constitutional for the government to detain some noncitizens pending removal under
A.
The first Mathews factor, the private interest at stake (here, the individual‘s liberty interest in his freedom from prolonged incarceration) is the greatest possible liberty interest protected by the Constitution, and therefore weighs strongly in Rodriguez Diaz‘s favor. See Foucha, 504 U.S. at 80.
While the majority acknowledges that Rodriguez Diaz‘s fourteen-month detention after his first bond hearing qualifies his detention as “prolonged,” and therefore creates an “questionably substantial” private liberty interest, the majority fails to address how this liberty interest increases the longer an individual is deprived of his liberty. Singh, 638 F.3d at 1208; Zadvydas, 533 U.S. at 701.
We have previously held that an individual‘s liberty interest sharply increases after he has been detained for six months. See Diouf II, 634 F.3d at 1091-92 (“When detention crosses the six-month threshold and release or removal is not imminent, the private interests at stake are profound.“); Aleman Gonzalez v. Barr, 955 F.3d 762, 772 (9th Cir. 2020), rev‘d on other grounds, 142 S. Ct. 2057 (2022) (re-affirming that “the conclusion that detention always becomes prolonged at six months [is] consistent with the reasoning of Zadvydas, Demore, Casas, and Diouf II” (internal quotation marks omitted)).
Rodriguez Diaz had been detained for sixteen months and had gone more than fourteen months without a bond hearing when he filed this habeas petition. During this time, as provided under
Further, Rodriguez Diaz‘s liberty interest is particularly weighty because, while in detention, Rodriguez Diaz was held in Yuba County Jail, a facility that houses individuals convicted of crimes. During his detention, he did not have access to a cell phone or internet, was deprived of the ability to freely interact with his family, friends, and counsel, and was unable to work to support his wife and child. The majority‘s point that immigration proceedings are civil proceedings, and therefore some procedures afforded to criminal defendants do not apply to detainees, Majority Op. 30-31 n.7, emphasizes the increased importance of other procedural protections in these circumstances, such as an additional bond hearing, when a detainee is “incarcerated under conditions indistinguishable from those imposed on criminal defendants sent to prison following convictions for violent felonies and other serious crimes.” Velasco Lopez, 978 F.3d at 850.
Significantly, Rodriguez Diaz did not receive the procedural protections afforded to an individual in the criminal justice system before that individual is placed in similar conditions, including the right to counsel or a speedy trial. As amici argue, there is a stark contrast between the procedural protections afforded to clients in the criminal context versus those in the civil custody of ICE—including the burden of proof justifying such detention. See id. at 850 (holding that “the sum total of procedural protections afforded” to a detainee who was held under
B.
The majority also undervalues the “risk of an erroneous deprivation of [Rodriguez Diaz‘s] interest[s] through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.” Mathews, 424 U.S. at 335. The second prong of the Mathews test examines the chance that, under the current procedures, the IJ will detain someone who does not actually pose a flight risk or danger to the community.
Under
Indeed, that is the scenario that played out here: Once Rodriguez Diaz received the bond hearing with processes our constitution requires, he was released by the IJ on bond. Thus, in real life terms the risk that Rodriguez Diaz was erroneously deprived of his liberty interest was one hundred percent.3 As amici aptly point out, “this Court does not need to speculate on whether the application of the incorrect standard may have affected the outcome of the bond hearing. The record here proves it.”
The majority states that “we cannot simply count [Rodriguez Diaz‘s] months of detention,” Majority Op. 30, because, among other things, he previously received a bond hearing. But the “potential length of detention under section 1226(a)” is highly “relevant to the weight of the liberty interest at stake.” Hernandez-Lara, 10 F.4th at 30 n.4. Under the majority‘s premise, an individual could be detained
Even if a detainee were to be afforded a hearing as a matter of right after his detention became prolonged, the risk of erroneous deprivation is high if he must still carry the burden of proof. Placing the burden of proof on the detainee rather than the government can lead to a less complete factual record, because the person with the burden of proof is the one responsible for creating the record. The more complete a factual record, the more information the IJ has to base a conclusion on, and therefore the more likely it is that the IJ will make the correct decision.
As amici explain, detainees are in a much worse position to compile a complete and accurate factual record than the government is. For instance, detainees have limited access to phones, computers, and mail, making it harder for them to gather relevant documents including their official records, proof of community ties, and employment verification. Detainees often face cultural and language barriers, making it even more difficult to access relevant information. Further, detainees often do not have access to legal help in building their case. And because detainees do not have a constitutional right to counsel, many indigent noncitizens enjoy no such privilege.5
While noncitizens lack access to legal, financial, and community resources key to obtaining evidence to fight for their freedom, the government has immediate access to detainees’ immigration or criminal records, as well as the resources and time to compile such information. See Velasco Lopez, 978 F.3d at 853.
The risk of legal error becomes weightier with each passing day of detention, requiring more procedural protections. Id. (“[A]s the period of . . . confinement grows, so do the required procedural protections.” (internal quotation marks omitted)). The current procedures under
C.
I agree with the majority that, under the third Mathews factor, there is a strong governmental interest at stake here, including ensuring noncitizens do not abscond or commit crimes while their removal proceedings are pending. However, our precedent does not suggest that the
Significantly, unlike the individual‘s interest in liberty, the strength of the government‘s interest remains constant over the course of an individual‘s detention. See Velasco Lopez, 978 F.3d at 855 (“[T]he longer detention continues, the greater the need for the [g]overnment to justify its continuation.“). I disagree with the majority‘s reasoning that the government‘s interest increases over time because “the risk of a detainee absconding inevitably escalates as the time for removal becomes more imminent.” Majority Op. 32. The case the majority cites to for this proposition, Johnson v. Guzman Chavez, 141 S. Ct. 2271 (2021), focuses on noncitizens detained under
Moreover, the majority‘s analysis of the government‘s interest is flawed throughout by its presumption that the passing time would inevitably lead to Rodriguez Diaz‘s removal. The majority presumes Rodriguez Diaz will lose his appeal to the BIA and his petition for review to us. This is not a presumption in which we, as judges, should indulge.
In our analysis of the government‘s interest, we must also consider public interest issues such as “the administrative burden and other societal costs that would be associated with the additional process.” Velasco Lopez, 978 F.3d at 855 (internal quotation marks omitted). This consideration favors Rodriguez Diaz because “[w]hen the [g]overnment incarcerates individuals it cannot show to be a poor bail risk for prolonged periods of time . . . it separates families and removes from the community breadwinners, caregivers, parents, siblings and employees.” Id. Indeed, “limiting the use of detention to only those noncitizens who are dangerous or a flight risk may save the government, and therefore the public, from expending substantial resources on needless detention.” Hernandez-Lara, 10 F.4th at 33. Rodriguez Diaz‘s case exemplifies this point: The IJ determined that Rodriguez Diaz was not a danger nor a flight risk when he was afforded a hearing with the constitutionally required procedural protections. Therefore, because his “unnecessary detention impose[d] substantial societal costs,” the government‘s interest here supports affording Rodriguez Diaz an additional bond hearing. Id.
Lastly, as the district court indicated, the government‘s interest here “is the ability to detain [p]etitioner without providing him with another bond hearing, not whether the government may continue to detain him, and it is not contested that the cost of conducting a bond hearing, to determine whether the continued detention of [p]etitioner is justified, is minimal.” Accordingly, the government‘s interest here is outweighed
IV.
In balancing the Mathews factors, I agree with the majority that at the start of a noncitizen‘s detainment, the government‘s interest initially outweighs the individual‘s interest. However, at a certain point, the individual‘s liberty interest begins to overshadow the government‘s interest, which remains constant. See Velasco Lopez, 978 F.3d at 855.
As the majority acknowledges, its decision is not mandated by precedent. The proper balancing of the Mathews factors under
The majority chose to follow the Third Circuit‘s approach, which held that the government‘s interest prevailed. See Borbot, 906 F.3d at 280.7 However, in Velasco Lopez, the Second Circuit explained that the government must bear the burden of proof in
The Second Circuit more accurately weighs the important interests at stake than does the majority opinion. “While the [g]overnment‘s interest may have initially outweighed short-term deprivation of [Rodriguez Diaz‘s] liberty interests . . . [his] prolonged incarceration, which had continued for [sixteen] months without an end in sight or a determination that he [continued to be] a danger or flight risk, violated due process.” Id. at 854-55.
Accordingly, in balancing the Mathews factors, the due process concepts embedded in the Supreme Court‘s and our precedent suggest that once an individual has been detained for six months, the government must provide a new bond hearing at which the government proves its interest in detention by clear and convincing evidence to meet the due process protections set out in the Constitution. See, e.g., Addington, 441 U.S. at 427; Demore, 538 U.S. at 529; Singh, 638 F.3d at 1203-04. Because Rodriguez Diaz had been detained for fourteen months since his first bond hearing, he was constitutionally entitled to another bond hearing in which the government bore the burden of proof by a clear and convincing evidence standard.8
V.
“The
For the foregoing reasons, I respectfully dissent.