Avilez v. Garland

48 F.4th 915

Lexis Hernandez AVILEZ, Petitioner-Appellee,

v. Merrick B. GARLAND, Attorney General; Alejandro Mayorkas, in his official capacity; Tae D. Johnson, in his official capacity; David W. Jennings, Respondents-Appellants,andWendell Anderson, in his official capacity, Respondent.

No. 20-16142

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 22, 2021 San Francisco, California

Filed September 8, 2022

Sarah S. Wilson (argued), Senior Litigation Counsel; Ernesto Molina, Deputy Director; Brian Boynton, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondents-Appellants.

Judah Lakin (argued) and Amalia Wille, Lakin & Wille LLP, Oakland, California; Hector A. Vega and Genna Ellis Beier, Public Defender's Office, San Francisco, California; for Petitioner-Appellee.

Before: Mary H. Murguia, Chief Judge, and Marsha S. Berzon and Carlos T. Bea, Circuit Judges.

Opinion by Chief Judge Murguia ;

Concurrence by Judge Berzon ;

Concurrence by Judge Bea

MURGUIA, Chief Circuit Judge:

Lexis Hernandez Avilez, a Mexican citizen, petitioned for habeas relief after being held in immigration detention for over a year without a bond hearing. A district court judge granted Hernandez Avilez's petition for relief and ordered the Government to provide her with a bond hearing on statutory grounds, relying on Casas-Castrillon v. Department of Homeland Security , 535 F.3d 942 (9th Cir. 2008). The Government appealed on the ground that Casas-Castrillon is no longer good law. For the following reasons, we vacate the district court's grant of habeas relief and remand for consideration of Hernandez Avilez's remaining constitutional argument.

I.

Lexis Hernandez Avilez has lived in the United States since infancy and became a lawful permanent resident in 2000. In 2006, Hernandez Avilez was convicted of assault with a firearm in violation of California Penal Code § 245(a)(2). She was sentenced to sixteen years in prison, including a ten-year enhancement for gang participation. California authorities notified Immigration and Customs Enforcement ("ICE") of Hernandez Avilez's pending parole in late 2018.

Upon release from state prison in November 2018, Hernandez Avilez was immediately taken into ICE custody, served with a Notice to Appear, and placed in removal proceedings based on her felony assault conviction pursuant to Immigration & Nationality Act § 237(a)(2)(A)(iii), codified at 8 U.S.C. § 1227(a)(2)(A)(iii). The parties agree that during Hernandez Avilez's initial removal proceedings, she initially was subject to mandatory immigration detention under 8 U.S.C. § 1226(c) ("Subsection C") because of her prior conviction. Under Subsection C, detention is mandatory, and a noncitizen of the United States ("noncitizen") therefore is not statutorily entitled to a bond hearing.¹

During removal proceedings, Hernandez Avilez conceded removability based on her criminal conviction. She sought relief, however, under the Convention Against Torture ("CAT"), which allows a noncitizen to remain in the United States if she can show that she is more likely than not to be tortured if returned to her home country. In March 2019, an immigration judge ("IJ") denied CAT relief and ordered Hernandez Avilez removed to Mexico. In August 2019, after Hernandez Avilez's timely appeal of the IJ's denial of CAT relief, the Board of Immigration Appeals ("BIA") dismissed Hernandez Avilez's appeal. Hernandez Avilez then petitioned this court for review of the BIA's decision and sought a stay of removal.² See Hernandez Avilez v. Garland , No. 19-72040, Dkt. No. 8 (9th Cir. Aug. 26, 2019). Several months later, in November 2019, Hernandez Avilez filed a motion to reopen her immigration proceedings before the BIA, based on new evidence of her gender transition and the risks she would face as a transgender woman in Mexico.³

In December 2019, after spending more than a year in immigration detention, Hernandez Avilez filed a petition for habeas corpus under 28 U.S.C. § 2241 in the U.S. District Court for the Northern District of California. In her habeas petition, Hernandez Avilez argued that under Casas-Castrillon , she no longer was subject to mandatory detention under Subsection C because her removal order was judicially stayed pending a decision on her petition for review of the agency's denial of CAT relief. Casas-Castrillon held that once a noncitizen's immigration case reaches judicial review, that noncitizen is detained under 8 U.S.C. § 1226(a) ("Subsection A")—the general, discretionary administrative detention provision for noncitizens in removal proceedings—not Subsection C, which applies to noncitizens in removal proceedings who have been convicted of certain criminal offenses. Hernandez Avilez further maintained that because Subsection A requires that noncitizens receive a bond hearing, she now was entitled to a bond hearing. Finally, Hernandez Avilez also argued that her prolonged detention violated due process.⁴

The Government conceded that under Casas-Castrillon , Hernandez Avilez would have been entitled to a bond hearing under Subsection A while her petition for review was pending in this court. The Government argued, however, that Casas-Castrillon was inapplicable because it was "clearly irreconcilable" with intervening Supreme Court authority—specifically, Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 200 L.Ed.2d 122 (2018). In the Government's view, under Jennings , a noncitizen who has been convicted of a qualifying crime and who initially is detained under Subsection C, remains detained under Subsection C throughout agency removal proceedings and any subsequent judicial review. This argument is contrary to Casas-Castrillon 's holding that a Subsection C detainee's detention shifts to Subsection A after the administrative phase of removal proceedings end and the judicial phase begins. The Government argues that as a result of Jennings , Hernandez Avilez remained detained under Subsection C and so, was never statutorily entitled to a bond hearing.

The district court concluded that Casas-Castrillon remained good law; that, because Hernandez Avilez had filed a petition for review, her detention fell under Subsection A; that she thus no longer was subject to mandatory detention; and that the Government therefore was required to provide her a bond hearing. An IJ subsequently held a hearing and granted Hernandez Avilez bond in the amount of $10,000.⁵ Hernandez Avilez posted bond and is no longer in custody. The Government timely appealed the district court's order, again arguing that Casas-Castrillon is "clearly irreconcilable" with Jennings and that Hernandez Avilez therefore was not entitled to a bond hearing.

The question before us on appeal is whether the Supreme Court's decision in Jennings abrogated our circuit's precedent in Casas-Castrillon , thereby precluding noncitizens like Hernandez Avilez—who initially were detained under Subsection C based on a prior, qualifying criminal conviction—from receiving a bond hearing under Subsection A while awaiting a decision from this court on a petition for review.

II.

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). We review de novo a district court's order granting a petition for a writ of habeas corpus under 28 U.S.C. § 2241. Diouf v. Mukasey , 542 F.3d 1222, 1228 (9th Cir. 2008).

A.

Noncitizens in the United States are removable if they fall within any of several statutory classes of removable individuals, one of which is noncitizens convicted of certain enumerated criminal offenses. See 8 U.S.C. § 1227(a). Four statutes grant the Government⁶ authority to detain noncitizens who have been placed in removal proceedings: 8 U.S.C. §§ 1225(b) (" Section 1225(b)"), 1226(a) ("Subsection A"), 1226(c) ("Subsection C"), and 1231(a) ("Section 1231(a)").⁷ A noncitizen's place "within this statutory scheme can affect whether his detention is mandatory or discretionary, as well as the kind of review process available to him if he wishes to contest the necessity of his detention." Prieto-Romero v. Clark , 534 F.3d 1053, 1057 (9th Cir. 2008). Only Subsection A and Subsection C are directly at issue in this case.

Subsection A is the default detention statute for noncitizens in removal proceedings and applies to noncitizens "[e]xcept as provided in [Subsection C]." 8 U.S.C. § 1226(a).⁸ Subsection A states that "[o]n a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States." Id. (emphasis added). The statute also provides for release on bond or conditional parole. Id. at § 1226(a)(2). Because of Subsection A's permissive language—specifically, the word "may"—detention under Subsection A is discretionary. See Prieto-Romero , 534 F.3d at 1059.

Subsection C provides for the detention of "criminal aliens" and states that "[t]he Attorney General shall take into custody any alien who" is deportable or inadmissible based on a qualifying, enumerated offense. 8 U.S.C. § 1226(c) (emphasis added).⁹ Release under Subsection C is limited to certain witness protection purposes. See id. at § 1226(c)(2). Because of its use of the word "shall," detention under Subsection C is mandatory. See Jennings , 138 S. Ct. at 847.

The differences in the discretionary or mandatory language of Subsections A and C respectively have significant consequences. Under Subsection A—the default detention provision—a noncitizen is entitled to a bond hearing at which the IJ considers whether the noncitizen is a flight risk or a danger to the community. See Jennings , 138 S. Ct. at 847 ("Federal regulations provide that aliens detained under § 1226(a) receive bond hearings at the outset of detention. See 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1)."); see also Singh v. Holder , 638 F.3d 1196, 1205 (9th Cir. 2011). By contrast, under ...