Diaz v. Garland

83 F.4th 1177

Aroldo Alberto RODRIGUEZ DIAZ, Petitioner-Appellee, v. Merrick B. GARLAND, Attorney General; Chad F. Wolf;David Jennings; Wendell Anderson, Respondents-Appellants.

No. 20-16245

United States Court of Appeals, Ninth Circuit

Filed October 12, 2023

D.C. No. 4:20-cv-01806-YGR

Piper Crafton Akol, Carecen SF, San Francisco, CA, Ahilan Thevanesan Arulanantham, Attorney, UCLA School of Law, Los Angeles, CA, Anand Balakrishnan, Staff Attorney - ACLU Immigrants' Rights Project, American Civil Liberties Union Foundation, New York, NY, Michael Kaufman, ACLU Foundation of Southern California, Los Angeles, CA, Judy Rabinovitz, Attorney, ACLU Immigrants' Rights Project, New York, NY, for Petitioner-Appellee.

Adrienne Zack, DOJ-USAO, San Francisco, CA, Patrick James Glen, Esquire, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, Sarah Stevens Wilson, DEPARTMENT OF JUSTICE, Civil Division, Washington, DC, for Respondents-Appellants.

Kelsey Ann Morales, Evelyn Wiese, Alameda County Public Defender, Oakland, CA, for Amici Curiae Bronx Defenders, Brooklyn Defender Services, Legal Aid Society, and San Francisco Public Defenders Office, Alameda County Public Defender's Office.

Michael Kaufman, ACLU Foundation of Southern California, Los Angeles, CA, for Amici Curiae American Civil Liberties Union Foundation of Southern California, American Civil Liberties Union Foundation.

Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center, Washington, DC, for Amicus Curiae Constitutional Accountability Center.

Kelsey Ann Morales, Alameda County Public Defender, Oakland, CA, for Amicus Curiae Law Office of the Cook County Public Defender.

Before: Kim McLane Wardlaw, Daniel A. Bress, and Patrick J. Bumatay, Circuit Judges.

Order; Statement by Judge Paez

ORDER

Judge Wardlaw voted to grant the petition for panel rehearing and rehearing en banc. Judge Bress and Judge Bumatay voted to deny the petition for panel rehearing and rehearing en banc. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35(a). The petition for panel rehearing and rehearing en banc, Dkt. 104, is DENIED.

PAEZ, Circuit Judge, with whom MURGUIA, Chief Judge, and WARDLAW, GOULD, BERZON, KOH, SUNG, SANCHEZ, H.A. THOMAS, MENDOZA, and DESAI, Circuit Judges, join, respecting the denial of rehearing en banc:

I respectfully disagree with the court's refusal to reconsider the panel opinion en banc.

"Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects." Zadvydas v. Davis, 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). In this case, the majority opinion reversed the district court's ruling that the Due Process Clause entitled Rodriguez Diaz, who had been detained for over a year, to a bond hearing at which the government must justify his continued detention by clear and convincing evidence.

The opinion conflicts with Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011), in which our court concluded that noncitizens whose detention becomes prolonged are constitutionally entitled to such a bond hearing. The panel majority distinguished Singh on the basis of the statutory authorization for the immigrant's detention—a distinction on which Singh's constitutional holding does not depend.

The panel then applied the traditional balancing test of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), in a manner that both conflicts with our court's reasoning in Singh and, as the dissent astutely observes, "fails to account for the high risk of procedural error and the importance of Rodriguez Diaz's strong individual liberty interest." Rodriguez Diaz v. Garland, 53 F.4th 1189, 1219 (9th Cir. 2022) (Wardlaw, J., dissenting). Under the panel majority's Mathews analysis, the government's interest increases with the length of detention, while the individual's liberty interest does not, raising the question of how a due process challenge to prolonged detention might succeed. The panel majority nonetheless insists that this case should not be read to foreclose habeas relief for noncitizens whose detention under 8 U.S.C. § 1226(a) becomes prolonged. Id. at 1213-14.

I.

The panel majority in this case impermissibly departs from our court's binding application of core due process principles to prolonged detention under § 1226(a). Singh requires certain procedural protections to allay the due process concerns that attend prolonged detention:

[W]here prolonged detention is permissible, "due process requires adequate procedural protections to ensure that the government's asserted justification for physical confinement outweighs the individual's constitutionally protected interest in avoiding physical restraint." Because it is improper to ask the individual to "share equally with society the risk of error when the possible injury to the individual"—deprivation of liberty—is so significant, a clear and convincing evidence standard of proof provides the appropriate level of procedural protection.

638 F.3d at 1203-04 (internal quotation marks omitted) (first quoting Casas-Castrillon v. DHS, 535 F.3d 942, 950 (9th Cir. 2008), then quoting Addington v. Texas, 441 U.S. 418, 427, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979)). Under Singh, when an individual's immigration detention becomes prolonged, they are entitled to a bond hearing at which the government bears the burden of proof by clear and convincing evidence.

By the time his habeas petition was adjudicated, Rodriguez Diaz had been detained for fourteen months since his initial bond hearing, at which he bore the burden of proving that he was not a flight risk or a danger to the community. Because Rodriguez Diaz bore the burden at his initial bond hearing, once the district court determined that his detention had become prolonged, due process demanded a bond hearing at which the government was required to justify his ongoing detention by clear and convincing evidence. Rodriguez Diaz v. Barr, 2020 WL 1984301, at *6-8 (N.D. Cal. Apr. 27, 2020).

The panel majority distinguishes Singh based on the initial statutory authority under which a noncitizen is detained, a technicality on which Singh's constitutional holding does not rest. Singh, who was detained under 8 U.S.C. § 1226(c), did not receive an initial bond hearing. At the time we decided Singh, we understood the government's detention authority to shift to § 1226(a) once proceedings before the Board of Immigration Appeals were complete, and we construed that statute to require a bond hearing. See Casas-Castrillon, 535 F.3d at 947-948, 951. Intervening caselaw clarified that noncitizens initially detained under § 1226(c) do not have a statutory right to a bond hearing. Avilez v. Garland, 69 F.4th 525 (9th Cir. 2022) (abrogating in part Casas-Castrillon, 535 F.3d at 950-52). Because Singh was initially detained under § 1226(c), the portion of Singh premised on that implied statutory right is no longer good law.

Singh's constitutional holding, however, remains binding law of our court. As the panel majority noted, Singh "relied on the Due Process clause in determining the procedural rights available" to noncitizens challenging their prolonged detention. Rodriguez Diaz, 53 F.4th at 1202. The panel majority distinguishes Singh on the basis that Singh did not have an initial bond hearing, while Rodriguez Diaz did. But in Singh, we held that, when detention becomes prolonged, due process requires a bond hearing at which the government must prove by clear and convincing evidence that detention remains justified. Thus, while the difference in detention authority raised the question of whether Rodriguez Diaz's initial bond hearing was sufficient to justify his detention once that detention became prolonged, Singh required the panel to answer that question in the negative.

In Singh, we also expressly considered and rejected several of the arguments the panel majority embraces in Rodriguez Diaz. First, we refused the government's invitation to distinguish the liberty interest at stake in immigration detention from that of other forms of civil detention, explaining that "[t]he Supreme Court . . . 'repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty.' " Singh, 638 F.3d at 1204 (quoting Addington, 441 U.S. at 425, 99 S.Ct. 1804). We decided that, citizen or not, the issue was reducible to the core principle that "it is improper to ask the individual to 'share equally with society the risk of error when the possible injury to the individual'—deprivation of liberty—is so significant." Id. at 1203-04 (quoting Addington, 441 U.S. at 427, 99 S.Ct. 1804).¹ Our constitutional holding in Singh was thus rooted in the Supreme Court's civil detention precedent, which the Rodriguez Diaz panel majority instead rejects as inapplicable to the context of immigration detention. Rodriguez Diaz, 53 F.4th at 1210-12.

Second, in Singh, we disagreed with the government's position that noncitizens "should be treated differently" than other individuals in civil detention "because they can end their detention by voluntarily electing to leave the country." 638 F.3d at 1204. We explained that a lower standard of proof was not "justified by putting people like Singh to the choice of remaining in detention, potentially for years, or leaving the country and abandoning their challenges to removability even though they may have been improperly deemed removable." Id.; see also Prieto-Romero v. Clark, 534 F.3d 1053, 1060-61 (9th Cir. 2008). By contrast, the Rodriguez Diaz panel majority endorses the government's argument that Rodriguez Diaz's decision to pursue his legal rights by...