Martinez v. Clark

• Citation: 36 F.4th 1219
• Decision Date: 15 June 2022
• Docket Number: 21-35023
• Parties: Javier MARTINEZ, Petitioner-Appellant, v. Lowell CLARK, Warden, Northwest Detention Center; Nathalie Asher, Tacoma Field Office Director, United States Immigration and Customs Enforcement; Alejandro Mayorkas, Secretary, Department of Homeland Security ; Merrick B. Garland, Attorney General, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

36 F.4th 1219

Javier MARTINEZ, Petitioner-Appellant,

v.Lowell CLARK, Warden, Northwest Detention Center; Nathalie Asher, Tacoma Field Office Director, United States Immigration and Customs Enforcement; Alejandro Mayorkas, Secretary, Department of Homeland Security ; Merrick B. Garland, Attorney General, Respondents-Appellees.

No. 21-35023

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 2022 Seattle, Washington

Filed June 15, 2022

Robert Pauw (argued), Gibbs Houston Pauw, Seattle, Washington, for Petitioner-Appellant.

Dana M. Camilleri (argued), Trial Attorney; Anthony P. Nicastro, Assistant Director; Brian M. Boynton, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondents-Appellees.

Before: Jacqueline H. Nguyen, Eric D. Miller, and Patrick J. Bumatay, Circuit Judges.

BUMATAY, Circuit Judge:

Congress has determined that certain categories of aliens are subject to mandatory detention during their removal proceedings. See 8 U.S.C. § 1226(c). The most common reason for a noncitizen to be placed in mandatory detention is a criminal history. See Nielsen v. Preap , ––– U.S. ––––, 139 S. Ct. 954, 960, 203 L.Ed.2d 333 (2019) (plurality opinion). So aliens with certain criminal convictions must remain in the government's custody without bond throughout their removal proceedings.

Despite this statutory provision, district courts throughout this circuit have ordered immigration courts to conduct bond hearings for noncitizens held for prolonged periods under § 1226(c). The district court directives flow not from statutory text, but from due process. According to one such court order, the "prolonged mandatory detention pending removal proceedings, without a bond hearing, will—at some point—violate the right to due process." Martinez v. Clark , No. 18-CV-01669-RAJ, 2019 WL 5962685, at *1 (W.D. Wash. Nov. 13, 2019) (simplified). Whether due process requires a bond hearing for aliens detained under § 1226(c) is not before us today. And we take no position on that question.

What is before us today is the scope of federal court review of those bond determinations. In this case, the district court ordered that Javier Martinez—a twice-convicted drug trafficker detained under § 1226(c) —receive a bond hearing to determine whether he was a danger to the community or a flight risk. A hearing was held, and an immigration judge found that clear and convincing evidence showed that he was such a danger. The Board of Immigration Appeals ("BIA") affirmed, and Martinez remained detained.

Martinez then appealed to federal district court to overturn his detention. Martinez raised three claims: (1) clear and convincing evidence did not show he is a danger to the community; (2) the BIA applied the incorrect burden of proof at his hearing; and (3) the BIA failed to consider alternatives to detention, such as conditional parole. The district court asserted jurisdiction over all three claims and denied habeas relief. That decision was not entirely appropriate.

Congress has barred courts from reviewing "discretionary judgment[s]" regarding the detention and release of aliens in removal proceedings. 8 U.S.C. § 1226(e). Federal courts may only review related "constitutional claims or questions of law." Singh v. Holder , 638 F.3d 1196, 1202 (9th Cir. 2011). We hold that an immigration court's determination that a noncitizen is a danger to the community is a "discretionary judgment" not subject to review. We thus vacate the district court's judgment regarding Martinez's first claim and remand with instructions to dismiss for lack of jurisdiction.

The district court did, however, have jurisdiction to review Martinez's last two claims since they involve questions of law or constitutional questions. Because they were correctly denied, we affirm.

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 of the United States. In 2000, he was convicted of conspiring to distribute cocaine under 21 U.S.C. §§ 841, 846, and sentenced to 20 months in prison. The next year, after his release from prison, the Department of Homeland Security ("DHS") commenced removal proceedings against Martinez. An immigration judge later granted him withholding of removal.

Twelve years after his release from prison, in 2013, Martinez was once again arrested for trafficking cocaine under 21 U.S.C. §§ 841, 846. After his arrest, a federal magistrate judge released Martinez on his own recognizance. About five months later, Martinez pleaded guilty to the drug charge. He was released for the three months before sentencing. At the sentencing hearing, the district court noted that it was "impressed" with Martinez's ability to control himself and to "avoid the pitfalls" while he was "out on bond." The district court observed that it would not have released Martinez (as the magistrate judge did), but that Martinez did well with the opportunity. Martinez remained drug-free and complied with all the conditions of his release. Based on his efforts at rehabilitation, the district court sentenced Martinez to 60 months in prison. The district court also allowed Martinez to self-report to prison, and he did so a month later. While in prison, Martinez earned his GED, took vocational classes, and attended Bible studies. He also participated in a drug-treatment program and received counseling for his drug addiction.

In early 2018, DHS reopened his removal proceedings based on his 2013 conviction. After his release from prison 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 8 U.S.C. § 1226(c).

In November 2018, Martinez then 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 , 2019 WL 5962685, at *1. The district court reasoned that Martinez's prolonged mandatory detention under § 1226(c) violated due process. Id. To comply with due process, the district court ordered "the government to show by clear and convincing evidence that [Martinez] presents a flight risk or a danger to the community at the time of the bond hearing." Id.

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 release on bond pre-incarceration, the district court's statements during sentencing, his efforts at rehabilitation, his family ties, and his strong community support. Still, the immigration judge found Martinez's two convictions for drug trafficking to be dispositive. The immigration judge also determined that conditional parole was not appropriate for Martinez.

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 does 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 the instant federal habeas petition under 28 U.S.C. § 2241, seeking release from DHS detention. As relevant here, Martinez asserted that the BIA erred by failing to consider releasing him on conditional parole and by concluding that the government met its burden to present clear and convincing evidence of his dangerousness.

As to the threshold issue of jurisdiction, a magistrate judge held that the federal court had jurisdiction over Martinez's claims. First, the magistrate judge ruled that Martinez's conditional parole claim was a question of law and did not challenge any discretionary determination. Next, the magistrate judge considered as a "colorable due process argument" Martinez's claim that the government failed to meet its evidentiary burden in denying bond.

After asserting jurisdiction, the magistrate judge recommended that the district court deny the habeas petition. On the conditional parole claim, the magistrate judge determined that the Ninth Circuit does not require immigration courts to consider conditions of release in assessing whether an alien could be released on bond. On the dangerousness claim, the magistrate judge applied de novo review and held that the government satisfied its burden of showing by clear and convincing evidence that Martinez was a danger to the community. The district court adopted the magistrate judge's report and recommendations.

Martinez now appeals. We have jurisdiction over the appeal under 28 U.S.C. § 1291 and § 2253(a). We review the denial of a habeas petition de novo, Padilla-Ramirez v. Bible , 882 F.3d 826, 828 (9th Cir. 2017), any underlying legal questions de novo, and factual questions for clear error, Singh , ...