Gonzalez v. Barr

Decision Date07 April 2020
Docket NumberNo. 18-16465,18-16465
Citation955 F.3d 762
Parties Esteban ALEMAN GONZALEZ; Eduardo Gutierrez Sanchez, Plaintiffs-Appellees, v. William P. BARR, Attorney General; Chad Wolf, Acting Secretary, Department of Homeland Security; James McHenry, Director, Executive Office for Immigration Review, Department of Justice; Christopher A. Santoro, Acting Chief Immigration Judge, Executive Office for Immigration Review, Department of Justice; David W. Jennings, Field Office Director for the San Francisco Field Office of U.S. Immigration and Customs Enforcement, Department of Homeland Security; David O. Livingston, Sheriff, Contra Costa County; Kristi Butterfield, Facility Commander, West County Detention Facility, Contra Costa County, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

M. SMITH, Circuit Judge:

Esteban Aleman Gonzalez and Eduardo Gutierrez Sanchez (Plaintiffs) represent a certified class of individuals who are subject to final removal orders and are detained pursuant to 8 U.S.C. § 1231(a)(6), within our court’s jurisdiction for six months or more, and who have been or will be denied an individualized bond hearing before an immigration judge (IJ).

Section 1231(a)(6) authorizes Defendants-Appellants (hereinafter, the Government 1 ) to detain aliens subject to final removal orders, or reinstated final removal orders. In Diouf v. Napolitano , 634 F.3d 1081 (9th Cir. 2011) ( Diouf II ), a three-judge panel of our court applied the canon of constitutional avoidance to construe § 1231(a)(6) as requiring an individualized bond hearing before an IJ for an alien detained for six months or longer when the alien’s release or removal is not imminent. Id. at 1086, 1091–92 & n.13. In this case, Plaintiffs sought a preliminary injunction requiring the Government to provide class members with an individualized bond hearing in accordance with Diouf II . Relying on our court’s decision in Singh v. Holder , 638 F.3d 1196 (9th Cir. 2011), Plaintiffs also sought for the Government to bear the burden of proof at such a hearing. Concluding that it remained bound by Diouf II , the district court granted the preliminary injunction. The Government appeals, urging us to reverse and vacate.

We must decide whether Plaintiffs are likely to succeed on the merits of their claim that § 1231(a)(6) requires the Government to provide class members with an individualized bond hearing. As it argued unsuccessfully to the district court, the Government principally argues that Diouf II is clearly irreconcilable with the Supreme Court’s decision in Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 200 L.Ed.2d 122 (2018), a decision that rejected our court’s application of the canon of constitutional avoidance to construe different immigration detention statutes. Despite the district court’s reliance on our decision in Diouf II , the Government further argues that the district court impermissibly "re-applied" the canon to § 1231(a)(6) to grant the preliminary injunction. According to the Government, Clark v. Martinez , 543 U.S. 371, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005), establishes that the Court’s construction of § 1231(a)(6) in Zadvydas v. Davis , 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), is the single permissible application of the canon to the provision.

The threshold issue we must resolve is whether Diouf II is clearly irreconcilable with Jennings . As a three-judge panel, we are bound by the prior decision of another three-judge panel. Miller v. Gammie , 335 F.3d 889, 893, 899–900 (9th Cir. 2003) (en banc). This rule gives way when, but only when, the earlier decision is clearly irreconcilable with the holding or reasoning of intervening authority from our court sitting en banc or the Supreme Court. Id. at 893, 899–900. "The ‘clearly irreconcilable’ requirement is ‘a high standard.’ " United States v. Robertson , 875 F.3d 1281, 1291 (9th Cir. 2017) (quoting Rodriguez v. AT & T Mobility Servs. LLC , 728 F.3d 975, 979 (9th Cir. 2013) ). "[I]f we can apply our precedent consistently with that of the higher authority, we must do so." FTC v. Consumer Def., LLC , 926 F.3d 1208, 1213 (9th Cir. 2019) (emphasis added).

We hold that Plaintiffs are likely to succeed on the merits of their § 1231(a)(6) statutory claim. Although we recognize some tension between Diouf II and Jennings , we cannot conclude that the decisions are so fundamentally inconsistent that we can no longer apply Diouf II without running afoul of Jennings . We thus conclude that we remain bound by Diouf II . For that reason, we conclude further that the district court did not err in relying on Diouf II ’s construction of § 1231(a)(6) to require a bond hearing before an IJ after six months of detention for an alien whose release or removal is not imminent. Because Jennings did not invalidate our constitutional due process holding in Singh , the district court also properly required the Government to bear a clear and convincing burden of proof at such a bond hearing to justify an alien’s continued detention. Our conclusion that Diouf II remains controlling compels us to reject the Government’s remaining challenges that effectively seek to relitigate Diouf II . We conclude further that the preliminary injunction complies with a proper reading of Clark . Based on these determinations, we affirm the district court’s preliminary injunction in full.

I. Statutory Framework

Various provisions of the Immigration and Nationality Act (INA) authorize the government to detain noncitizens during immigration proceedings. See 8 U.S.C. §§ 1225(b), 1226(a), 1226(c), and 1231(a). These statutes are different textually and in their application. "[T]hese statutes apply at different stages of an alien’s detention." Diouf v. Mukasey , 542 F.3d 1222, 1228 (9th Cir. 2008) ( Diouf I ). "Where an alien falls 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).

Section 1225(b)(1) and (b)(2) authorize the government "to detain certain aliens seeking admission into the country[.]" Jennings , 138 S. Ct. at 838. Pursuant to §§ 1226(a) and (c), the government has the authority to detain "aliens already in the country pending the outcome of removal proceedings." Id. Section 1231(a), the detention provision at issue in this case, "authorizes the detention of aliens who have already been ordered removed from the country." Id. at 843.

Pursuant to § 1231(a), the Attorney General "shall remove the alien from the United States within a period of 90 days" when an alien is ordered removed. 8 U.S.C. § 1231(a)(1)(A). "During the removal period, the Attorney General shall detain the alien." 8 U.S.C. § 1231(a)(2). "If the alien does not leave or is not removed during the removal period, the alien ... shall be subject to supervision under regulations" set by the Attorney General pending removal. Id. § 1231(a)(3). Section 1231(a)(6) further provides that "certain categories of aliens who have been ordered removed, namely, inadmissible aliens, criminal aliens, aliens who have violated their nonimmigrant status conditions, and aliens removable for certain national security or foreign relations reasons, as well as any alien ‘who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal,’ " Zadvydas , 533 U.S. at 688, 121 S.Ct. 2491, "may be detained beyond the removal period and , if released, shall be subject to the terms of supervision in paragraph (3) ," 8 U.S.C. § 1231(a)(6) (emphasis added).

In this circuit, detention pursuant to § 1231(a)(6) "encompasses aliens ... whose collateral challenge to [a] removal order (or a motion to reopen) is pending in the court of appeals, as well as to aliens who have exhausted all direct and collateral review of their removal orders but who, for one reason or another, have not yet been removed from the United States." Diouf II , 634 F.3d at 1085 ; see also Diouf I , 542 F.3d at 1230 (explaining that the removal period in § 1231(a)(1) will commence even if a stay of removal is entered while a federal court reviews an alien’s habeas petition pursuant to 28 U.S.C. § 2241 or considers a petition for review of a denial by the Board of Immigration Appeals of an alien’s motion to reopen).

The INA also authorizes the government to reinstate a prior removal order against an alien who the government believes has unlawfully reentered the United States, with the order "reinstated from its original date." 8 U.S.C. § 1231(a)(5). Aliens with reinstated removal orders may pursue limited forms of relief from removal, including withholding of removal and protection pursuant to the Convention Against Torture. Andrade-Garcia v. Lynch , 828 F.3d 829, 831 (9th Cir. 2016). In this circuit, aliens with reinstated removal orders, including those who pursue these limited forms of relief, are treated as detained pursuant to § 1231(a)(6). Padilla-Ramirez v. Bible , 862 F.3d 881, 884–87 (9th Cir. 2017), amended by , 882 F.3d 826, 830–33 (9th Cir. 2018).

II. The Proceedings in this Case

Plaintiffs Aleman Gonzalez and Gutierrez Sanchez are natives and citizens of Mexico. The Government reinstated prior removal orders against them in 2017 but placed each in withholding-only removal proceedings after asylum officers determined that each has a reasonable fear of persecution or torture in Mexico. Both Plaintiffs requested a bond hearing before an IJ after 180 days in detention. Different IJs, however, denied the requests by reasoning that Jennings effectively overruled Diouf II and thus deprived the IJs of jurisdiction to conduct the bond hearing Diouf II would require. Plaintiffs filed the complaint and petition for a writ of habeas corpus on...

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