Javier Martinez v. Lowell ClarkJavier Martinez v. Lowell Clark
FOR PUBLICATION
OPINION
Before: Jacqueline H. Nguyen, Eric D. Miller, and Patrick J. Bumatay, Circuit Judges.
Opinion by Judge Bumatay; Concurrence by Judge Bumatay
SUMMARY*
Immigration Immigration/Habeas/Detention
On remand from the United States Supreme Court, the panel affirmed the district court‘s denial of Javier Martinez‘s habeas petition challenging his immigration detention. The panel held that federal courts have jurisdiction to review the Board of Immigration Appeals’ determination that an alien is a “danger to the community,” but concluded that the BIA did not abuse its discretion or err in concluding that Martinez was such a danger.
Martinez was detained under
This panel previously held that the district court lacked jurisdiction to review the “dangerousness” determination under
The panel concluded that Wilkinson compels the conclusion that application of the “dangerousness” standard is a reviewable mixed question. The panel explained that “dangerousness” is not so different from the standard the Supreme Court found reviewable in Wilkinson or the standard this court later found reviewable in Zia v. Garland, 112 F.4th 1194 (9th Cir. 2024), because the BIA‘s caselaw sets out nine factors an IJ may consider before making the ultimate determination.
Next, the panel concluded that the applicable standard of review is the abuse-of-discretion standard, explaining that Wilkinson recognized that a “deferential standard of review” applies where a mixed question requires a court to immerse itself in facts. Here, the district court applied the de novo standard of review, but the court determined that that remand would be futile because the district court denied under a higher standard of review.
On the merits, the panel concluded that the BIA did not abuse its discretion, explaining that the BIA properly considered the relevant factors, and reasonably believed that Martinez‘s equities did not outweigh the evidence of dangerousness.
The panel also rejected Martinez‘s arguments that the BIA applied the wrong burden of proof and that the BIA‘s failure to consider alternatives to detention violated due process or was legal error.
Concurring, Judge Bumatay wrote that this case should never have gotten to this point because federal courts actually lack authority to order bond hearings for aliens mandatorily detained under
COUNSEL
Robert Pauw (argued), Gibbs Houston Pauw, Seattle, Washington; Matt Adams, Glenda M. Aldana Madrid, Leila Kang, and Aaron Korthuis, Northwest Immigrant Rights Project, Seattle, Washington; Lee Gelernt, American Civil Liberties Union Foundation Immigrants’ Rights Project, New York, New York; Hannah Schoen and Cody Wofsy, American Civil Liberties Union Foundation Immigrants’ Rights Project, San Francisco, California; for Petitioner-Appellant.
Dana M. Camilleri (argued), Trail Attorney; Patrick J. Glen; Anthony P. Nicastro, Assistant Director; Office of Immigration Litigation; Brian M. Boynton, Principal Deputy Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Respondents-Appellees.
Michael K.T. Tan and Judy Rabinovitz, American Civil Liberties Union Foundation Immigrants’ Rights Project, New York, New York; Michael Kaufman, American Civil Liberties Union Foundation, Los Angeles, California; Ahilan Arulanantham, UCLA School of Law, Center for Immigration Law and Policy, Los Angeles, California; Jayashri Srikantiah, Stanford Law School, Immigrants’ Rights Clinic, Stanford, California; Sean Commons and Alexandria Ruiz, Sidley Austin LLP, Los Angeles, California; Ava Guo, Sidley Austin LLP, Washington, D.C.; for Amici Curiae ACLU Foundation, ACLU Foundation of Southern California, and UCLA School of Law Center for Immigration Law and Policy.
Genna E. Beier and Francisco Ugarte, San Francisco Public Defender‘s Office, San Francisco, California; Kelsey A. Morales and Raha Jorjani, Alameda County
Matt Adams and Aaron Korthuis, Northwest Immigrant Rights Project, Seattle, Washington; Trina A. Realmuto, National Immigration Litigation Alliance, Brookline, Massachusetts; for Amicus Curiae the Northwest Immigrant Rights Project and The National Immigration Litigation Alliance.
OPINION
BUMATAY, Circuit Judge:
Earlier we concluded that the district court lacked jurisdiction to review a Board of Immigration Appeals (“BIA“) determination that an alien was a “danger to the community” for immigration detention purposes. We relied on
After our decision, the Supreme Court decided Wilkinson v. Garland, 601 U.S. 209 (2024). Wilkinson clarified the boundaries of judicial review in the immigration context. It explained that “[t]he application of a statutory legal standard . . . to an established set of facts is a quintessential mixed question of law and fact” and is reviewable. Id. at 212. The Supreme Court then granted the petition for certiorari here, vacated our judgment, and remanded for further consideration of Wilkinson‘s impact on this case. See Martinez v. Clark, 144 S. Ct. 1339 (2024) (mem.).
After Wilkinson, the determination whether an alien is “dangerous” for immigration-detention purposes is a mixed question of law and fact and is reviewable as a “question of law.” See Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011) (“Although
Under Wilkinson, the district court‘s review of the BIA‘s “dangerousness” determination is for abuse of discretion, and our
I.
Javier Martinez, a native of Costa Rica and citizen of Nicaragua, entered the United States in 1987 as a conditional resident. Three years later, he became a lawful permanent resident. In 2000, he was convicted of conspiring to distribute cocaine under
Twelve years after his release from prison, in 2013, Martinez was once again arrested for trafficking cocaine under
In early 2018, DHS reopened Martinez‘s removal proceedings based on his 2013 conviction. After his release in April 2018, Martinez was taken directly into DHS custody and held without bond. After about six months, Martinez received a bond hearing, but the presiding immigration judge determined that he did not have jurisdiction to release Martinez because he was subject to mandatory detention under
In November 2018, Martinez filed a federal habeas petition seeking immediate release or, in the alternative, an individualized bond hearing before an immigration judge. The district court ordered that Martinez receive a bond hearing. Martinez v. Clark, 2019 WL 5962685, at *1 (W.D. Wash. Nov. 13, 2019). The district court reasoned that Martinez‘s prolonged mandatory detention under
In November 2019, an immigration judge held a bond hearing for Martinez and denied him bond. The immigration judge ruled that the government had met its burden of showing by clear and convincing evidence that Martinez was a danger to the community and a flight risk. In making the dangerousness determination, the immigration judge evaluated Martinez‘s mitigating evidence, such as his successful pre-incarceration release on bond, the district court‘s statements during sentencing, his efforts at rehabilitation, his family ties, and his strong community support.
On appeal, the BIA ruled that Martinez was ineligible for release on bond based on the “totality of the evidence.” The BIA agreed with the immigration judge that the government sustained its burden to show that Martinez was a danger to the community by clear and convincing evidence. In doing so, the BIA emphasized that it had “long acknowledged the dangers associated with the sale and distribution of drugs”
and found that Martinez‘s repeated drug-trafficking convictions provided “strong evidence” that he was dangerous. The BIA also acknowledged Martinez‘s rehabilitation efforts, but it found that his good behavior for “the approximately 7 years he has been detained in either prison or DHS custody d[id] not indicate that he will not revert to his old habits of drug use and trafficking upon his release.” The BIA did not reach the immigration judge‘s alternative conclusion that Martinez posed a flight risk.
Martinez then brought this federal habeas petition under
Martinez now appeals. We have jurisdiction over the appeal under
II.
We first address Martinez‘s claim that the BIA erred in concluding that clear and convincing evidence showed that he was a “danger to the community.” We have jurisdiction over the claim and conclude that the BIA didn‘t abuse its discretion in considering Martinez a danger.
A.
We begin with jurisdiction. Martinez was mandatorily detained under
The Attorney General‘s discretionary judgment regarding the application of [
§ 1226 ] shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.
The Ninth Circuit has clarified the federal courts’ jurisdiction over “constitutional claims or questions of law” regarding immigration detention under
So we must decide whether the BIA‘s determination that Martinez is a “danger to the community” is a “discretionary judgment” or a “question of law.” For this question, we look to Wilkinson, which clarified the distinction between questions of law, mixed questions of law and fact, and questions of fact in the immigration context.
Wilkinson examined the “exceptional and extremely unusual hardship” requirement for cancellation of removal under
Cancellation of removal also has both a jurisdiction-stripping and jurisdiction-restoring provision.
The Court ruled that the “hardship” determination fell within the jurisdiction-restoring provision. Under BIA precedent, the “hardship” standard requires a showing that a relative “would suffer hardship that is substantially different from or beyond that which would ordinarily be expected to result from their removal.” Id. at 215 (simplified). To evaluate that, an IJ must consider a “range of factors, including the age and health of the qualifying family member.” Id. (simplified). But ultimately, “[a]ll hardship factors [are] considered in the aggregate” to make the determination. Id. (simplified).
The hardship determination, the Court said, was not “discretionary,” id. at 218, because the application of the statutory “hardship” standard to a “given set of facts presents a mixed question of law and fact.” Id. at 221. To get there, the Court reasoned that the “hardship” standard resembled the “due diligence” standard for equitable tolling, which the Court already established was a “mixed question.” Id. at 222 (noting that the “due diligence” standard requires a court to “evaluate whether a noncitizen was adequately conscientious in his pursuit of a filing deadline“). Although both standards “require[d] close engagement with the facts,” they each represented a mixed question because a court had to “assess whether an IJ correctly applied the statutory standard to a given set of facts.” Id. at 221. And under the Court‘s precedent, “[m]ixed questions of law and fact, even when they are primarily factual, fall within the statutory definition of ‘questions of law’ in
In contrast, “factual question[s] raised in an application for discretionary relief” remain
With this background in mind, we turn to the “dangerousness” determination. To determine whether an alien is a danger to the community or a risk of flight, an IJ weighs nine factors under BIA precedent. Guerra, 24 I. & N. Dec. at 40. The nine factors an IJ “may” consider “include any or all of the following:”
(1) whether the alien has a fixed address in the United States; (2) the alien‘s length of residence in the United States; (3) the alien‘s family ties in the United States, and whether they may entitle the alien to reside permanently in the United States in the future; (4) the alien‘s employment history; (5) the alien‘s record of appearance in court; (6) the alien‘s criminal record, including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses; (7) the alien‘s history of immigration violations; (8) any attempts by the alien to flee prosecution or otherwise escape from authorities; and (9) the alien‘s manner of entry to the United States.
Id. And “[t]he Guerra factor most pertinent to assessing dangerousness” is “the alien‘s criminal record, including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses.” Singh, 638 F.3d at 1206 (quoting Guerra, 24 I. & N. Dec. at 40).
Wilkinson compels the conclusion that application of the “dangerousness” standard is a reviewable mixed question. Even though what constitutes “dangerousness” is malleable and involves agency discretion, Wilkinson instructs that this is still a legal standard so long as federal courts can “assess whether an IJ correctly applied the statutory standard to a given set of facts.” 601 U.S. at 221. Indeed, “dangerousness” is not so different from the “exceptional and extremely unusual hardship” standard or the “good faith marriage” standard. All provide multiple factors for an IJ to consider before making the ultimate determination. For instance, the “hardship” determination includes eight factors “proper” for an IJ to “consider.” See In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 63-64 (BIA 2001) (simplified) (listing factors such as age, family ties, length of residence in United States, health, political and economic conditions in country of removal, others means of adjusting status, involvement in community, and immigration history). Likewise, the “good faith marriage” determination involves a review of the parties’ combined finances, length of cohabitation, birth certificates for any children, and “other evidence deemed pertinent to the director.”
The government suggests that the “dangerousness” determination is closer to the discretionary “step two” determination of the cancellation-of-removal process, which Wilkinson says is unreviewable. It is true that Martinez is detained under the mandatory detention provision of
But the district court here ordered the bond hearing under the Due Process Clause. Martinez, 2019 WL 5962685, at *1. The district court ruled that “due process requires the government to show by clear and convincing evidence that the detainee presents a flight risk or a danger to the community at the time of the bond hearing.” Id. That determination did not leave room for an added layer of agency discretion; if the BIA found that Martinez was not dangerous, it would have had to release him. See id.; see also Singh, 638 F.3d at 1202 (ordering release if the BIA did not find, by clear and convincing evidence, that alien was dangerous or a flight risk). So the “dangerousness” determination is unlike the fully discretionary second step under
B.
1.
Because we have jurisdiction here, we must next decide the standard of review for a “dangerousness” determination. The district court concluded that “the ultimate determination of whether th[e] facts amount to clear and convincing evidence of flight risk and dangerousness should be reviewed de novo.” Wilkinson, however, recognized that a mixed question that “requires a court to immerse itself in facts . . . suggests a more deferential standard of review.” 601 U.S. at 222. Zia confirmed that “our review is deferential” for a “primarily factual question,” and it held that, “under a deferential standard,” the BIA did not err in concluding the alien failed to establish a good-faith marriage. 112 F.4th at 1202.
The same principle applies here. When questions require a close review of agency-found facts, like the “dangerousness” determination, we review for an abuse of discretion. Cf. Konou v. Holder, 750 F.3d 1120, 1127 (9th Cir. 2014) (applying abuse of discretion standard to determination of whether an alien was convicted of a particularly serious crime) (simplified). That deference reflects Congress‘s decision to cabin judicial review in removal proceedings. See Patel, 596 U.S. at 332 (“Congress has sharply circumscribed judicial review of the discretionary-relief process.“). And we tread especially carefully in this area where Congress sought to eliminate judicial review.
As explained, the district court erroneously reviewed Martinez‘s habeas petition de novo instead of for abuse of discretion. But because the district court denied habeas relief under a higher standard of review, remand to the district court to review the BIA‘s “dangerousness” determination for abuse of discretion would be futile. We conclude that had the district court applied the proper standard of review, it would have correctly determined that the BIA did not abuse its discretion in finding Martinez dangerous.
Under an abuse of discretion standard, “we cannot reweigh evidence . . . [but] can [only] determine whether the BIA applied the correct legal standard.” Konou, 750 F.3d at 1127 (simplified). The BIA relied on the “totality of the evidence” to determine that Martinez‘s repeated convictions for conspiracy to distribute cocaine, which occurred thirteen years apart, provided compelling evidence that he was a danger to the community. The BIA pointed to prior decisions in which it has highlighted the destructive effects of narcotics. For example, the BIA has concluded,
Illicit narcotic drugs sold in the United States ruin or destroy the lives of many American citizens each year. Apart from the considerable number of people in this country who die of overdoses of narcotics or who become the victims of homicides related to the unlawful traffic of drugs, many others become disabled by addiction to heroin, cocaine, and other drugs.
In re Y-L-, 23 I. & N. Dec. 270, 275 (BIA 2002). Distributing deadly drugs is a clear danger to the community. And the BIA reasonably believed that Martinez‘s rehabilitative efforts and recent compliance with the law didn‘t outweigh this “strong evidence” of danger. Thus, the BIA properly considered the factors set forth in Guerra, and it did not abuse its discretion in finding, by clear and convincing evidence, that Martinez was a danger to the community.
III.
We now turn to Martinez‘s next claim—that the BIA erred by applying the wrong burden of proof. We have jurisdiction over this claim as it‘s a “question[] of law.” Singh, 638 F.3d at 1202. Martinez contends that the BIA failed to apply the correct clear-and-convincing burden of proof and review all the evidence in the record. He also alleges that the BIA impermissibly shifted the burden of proof to him. We disagree.
Generally, in the absence of any red flags, we take the BIA at its word. For example, “[w]hen nothing in the record or the BIA‘s decision indicates a failure to consider all the evidence,” we will rely on the BIA‘s statement that it properly assessed the entire record. Cole v. Holder, 659 F.3d 762, 771 (9th Cir. 2011). We do not require the BIA to “discuss each piece of evidence submitted.” Id. Similarly, we accept that the BIA “applied the correct legal standard” if the BIA “expressly cited and applied [the relevant caselaw] in rendering its decision.” See Mendez-Castro v. Mukasey, 552 F.3d 975, 980 (9th Cir. 2009). But when there is an indication that something is amiss, like if the BIA “misstat[es] the record” or “fail[s] to mention highly probative or potentially dispositive evidence,” we do not credit its use of a “catchall phrase” to the contrary. Cole, 659 F.3d at 771-72.
There are no such red flags here. At the outset of its decision, the BIA properly noted that the government bore the burden to establish by clear and convincing evidence that Martinez is a danger to the community. It then reviewed the
IV.
Lastly, we consider Martinez‘s third claim that the BIA had to consider alternatives to detention, such as conditional parole, before denying him bond. Martinez suggests that the BIA must import consideration of conditions of release from the criminal pretrial release context, such as GPS monitoring, drug testing, and counseling, to the immigration custody context. See
Due process does not require immigration courts to consider conditional release when determining whether to continue to detain an alien under
Nowhere in Singh did we suggest that due process also mandates that immigration courts consider release conditions or conditional parole before deciding that an alien is a danger to the community. Singh offers the high-water mark of procedural protections required by due process, and we see no reason to extend those protections any further here.
Relying on Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017), Martinez argues that conditions of release must be considered to ensure that detention is reasonably related to the government‘s interest in protecting the public. That case is inapplicable here. In Hernandez, the plaintiff aliens complained that neither their financial circumstances nor alternative release conditions were considered before their bond decisions were made, even though they were determined not to be dangerous or flight risks. 872 F.3d at 984-85, 990-91. While the government had a legitimate interest in protecting the public and ensuring appearances in immigration proceedings, we held that detaining an indigent alien without consideration of financial circumstances and alternative release conditions was “unlikely to result” in a bond determination “reasonably related to the government‘s legitimate interests.” Id. at 991. The analysis is different here. Cf. id. at 994 (relying on absence of dangerousness or flight-risk determination in procedural due process analysis).
Martinez was found to be a danger to the community, so his detention is clearly “reasonably related” to the government‘s interest in protecting the public. See id. at 991.
For these reasons, we affirm the denial of the petition.
AFFIRMED.
BUMATAY, Circuit Judge, concurring:
While I now agree that our court has jurisdiction to review whether an alien is a “danger to the community” under binding Supreme Court precedent, we never should have gotten to this point. That‘s because we had no authority to order a new bond hearing for a “criminal alien[]” subject to mandatory detention under
And the due process ruling here leads to a second problem—violation of Congress‘s directive that “[n]o court may set aside any action or decision by the Attorney General . . . regarding the detention or release of any alien or . . . denial of bond.”
These errors flow from a flawed conception of due process and our role in immigration proceedings. We ought to “defer to the political branches” on immigration decisions because they are “of a character more appropriate to either the Legislature or the Executive than to the Judiciary.” Rodriguez Diaz v. Garland, 53 F.4th 1189, 1215 (9th Cir. 2022) (Bumatay, J., concurring) (quoting Mathews v. Diaz, 426 U.S. 67, 81 (1976)). That‘s because “any policy toward aliens is vitally and intricately interwoven with contemporaneous policies . . . of foreign relations, the war power, and the maintenance of a republican form of government.” Demore v. Kim, 538 U.S. 510, 522 (2003) (quoting Mathews, 426 U.S. at 81 n.17). We should have respected our limited role in this area. Yet we deepen the affront to the separation of powers by aggrandizing our authority.
I.
Despite Congress‘s decision to detain all criminal aliens during removal proceedings, the district court believed that due process requires bond hearings (and potential release) for an alien whose detention becomes “prolonged.” It reasoned, “despite the statutory language of
Due process doesn‘t require bond hearings for criminal aliens mandatorily detained under
Because Congress possesses “considerable authority over immigration matters,” mandatory detention under
Absent any allegation that the extended detention here is unrelated to an immigration purpose, the mere fact that detention is “prolonged” doesn‘t alter the statutory framework. Indeed, in our circuit, the median processing time for an immigration case to reach a merits determination is 39 months. Does that mean that any immigration proceeding appealed in the Ninth Circuit would automatically invalidate mandatory detention under
And dicta from Rodriguez v. Marin isn‘t a basis to rule otherwise. First, the Rodriguez order was written after the Supreme Court expressly rejected our view that immigration statutes must allow for individualized bond hearings after detentions become prolonged. 909 F.3d at 255. Second, Rodriguez‘s musings were mainly justified by a criminal law ruling. Id. at 256-57 (quoting United States v. Salerno, 481 U.S. 739, 755 (1987)). But that‘s irrelevant when it comes to immigration law. See Demore, 538 U.S. at 521. Third, Rodriguez cites Zadvydas v. Davis, 533 U.S. 678, 690 (2001), for the proposition that “[c]ivil detention” violates due process outside of “certain special and narrow nonpunitive circumstances.” Rodriguez, 909 F.3d at 257 (simplified). But Zadvydas only holds that immigration detention must “serve its purported immigration purpose,” Demore, 538 U.S. at 526, and there is no argument that the detention of criminal aliens serves no immigration purpose. Finally, Rodriguez quotes at length Justice Breyer‘s dissenting opinion in Jennings v. Rodriguez, 583 U.S. 281 (2018). Rodriguez, 909 F.3d at 257 (quoting Jennings, 583 U.S. at 330) (Breyer, J., dissenting). But respectfully, a dissenting
In contrast, Rodriguez ignored the long history of deference to the political branches in administering the immigration system. See Demore, 538 U.S. at 538-40 (O‘Connor, J., concurring); Rodriguez Diaz, 53 F.4th at 1215-18 (Bumatay, J., concurring). Thus, no extra bond hearing was due here.
II.
Second, our erroneous precedent leads to a head-on clash with Congress‘s immigration design. In Singh, we asserted jurisdiction over any “constitutional question” or “question of law” involving an individualized detention “decision” despite the clear prohibition of
The Court has been clear on the meaning of this provision:
But Singh improperly expanded our authority beyond that. In that case, an alien challenged the result of his individualized bond hearing, arguing that the BIA violated his procedural due process right by using the wrong burden of proof. Singh, 638 F.3d at 1201. Singh agreed with the alien and ordered the alien‘s “release” from detention unless the BIA afforded him a new bond hearing under the court‘s newly fashioned due process standards. Id. at 1202. Singh justified this broad authority based on “traditional habeas jurisdiction” and claimed that
Singh didn‘t properly respect Congress‘s will here. Contrary to Singh‘s claim, Demore didn‘t restore “traditional habeas jurisdiction” under
Even if Demore permits constitutional challenges to the statutory framework of detention, the Court has never endorsed judicial review over all constitutional or legal questions. After all, not all constitutional or legal challenges target the detention‘s statutory framework. Many, including the ones raised by Martinez here, just appeal BIA decisions in an individual alien‘s bond hearing, such as whether the BIA employed the proper burden of proof or correctly analyzed a legal standard. Not only did Singh assert jurisdiction over these “operational decisions,” it also claimed the extraordinary authority to “release” any alien detained contrary to our court‘s wishes. 638 F.3d at 1202. Claiming the authority to release individual aliens directly contradicts
* * *
Because our precedent requires us to defy Congress‘s authority and assume an aggrandized role in immigration decisions, we should change it.