Rodriguez Diaz v. Garland

• Citation: 53 F.4th 1189
• Decision Date: 21 November 2022
• Docket Number: 20-16245
• Parties: Aroldo Alberto RODRIGUEZ DIAZ, Petitioner-Appellee, v. Merrick B. GARLAND, Attorney General; Chad F. Wolf, David Jennings; Wendell Anderson, Respondents-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

53 F.4th 1189

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.

Argued and Submitted December 7, 2021

Submission Vacated February 9, 2022

Resubmitted November 21, 2022 San Francisco, California

FILED NOVEMBER 21, 2022

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

Piper C. Akol (argued), Central American Resource Center of Northern California, San Francisco, California, for Petitioner-Appellee.

Kelsey A. Morales (argued), Raha Jorjani, and Evelyn Wise, Alameda County Public Defender's Office, Oakland, California, for Amici Curiae Alameda County Public Defender's Office, the Bronx Defenders, Brooklyn Defender Services, the Legal Aid Society, and the San Francisco Public Defender's Office.

Michael Kaufman and Liga Chia, ACLU Foundation of Southern California, Los Angeles, California; Judy Rabinovitz and Michael Tan, ACLU Immigrants' Rights Project, New York, New York; Ahilan Arulanantham, UCLA School of Law, Los Angeles, California; Jayashri Srikantiah, Stanford Law School Immigrants' Rights Clinic, Stanford, California; Sean Commons, Sidley Austin LLP, Los Angeles, California; for Amici Curiae ACLU Foundation and the ACLU Foundation of Southern California.

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

Opinion by Judge Bress ;

Concurrence by Judge Bumatay ;

Dissent by Judge Wardlaw

BRESS, Circuit Judge:

Aroldo Rodriguez Diaz, a citizen of El Salvador, was detained pursuant to 8 U.S.C. § 1226(a), which authorizes the federal government to detain aliens pending the completion of their removal proceedings. In accordance with agency procedures, Rodriguez Diaz requested and received a bond hearing before an Immigration Judge (IJ) to determine if his detention was justified. The IJ concluded that Rodriguez Diaz, who had an extensive criminal history, presented a danger to the community due to his gang affiliation. Based on this, the IJ denied release on bond. Rodriguez Diaz now claims that his continued detention was unconstitutional because under the Due Process Clause of the Fifth Amendment, he is entitled to a second bond hearing at which the government bears the burden of proof by clear and convincing evidence.

We hold that in this case, due process does not require the procedures Rodriguez Diaz would have us impose. The detention of aliens during removal proceedings has long been upheld as a permissible exercise of the political branches' authority over immigration. Section 1226(a) offers substantial procedural protections to detained persons, and Rodriguez Diaz has not shown that these procedures violate due process, either facially or as applied. We therefore reverse the district court's contrary judgment and remand for dismissal of Rodriguez Diaz's habeas petition.

I

Rodriguez Diaz came to the United States from El Salvador as a child, entering this country illegally on a date and location unknown. On September 29, 2011, at age fifteen, Rodriguez Diaz was convicted of first-degree residential burglary. He spent about a month in state custody, after which he was transferred to Immigration and Customs Enforcement (ICE).

ICE initiated removal proceedings and charged Rodriguez Diaz with inadmissibility under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without having been inspected, admitted, or paroled. Because Rodriguez Diaz was a minor, ICE transferred him to the custody of the Office of Refugee Resettlement, which subsequently released him on January 20, 2012. Removal proceedings continued, and Rodriguez Diaz later filed applications for asylum and protection under the Convention Against Torture (CAT).

In the following years, Rodriguez Diaz accumulated a fairly lengthy criminal record. In 2014, he was charged with battery on a person on school, park, or other property, and battery resulting in serious bodily injury. These charges were later dismissed. In 2016, Rodriguez Diaz was charged with misdemeanor possession of burglary tools. While these charges were pending, he was also charged with possession of cocaine, to which he pleaded no contest in return for dismissal of the burglary tool charges. For the drug charge, Rodriguez Diaz was sentenced to 18 months of probation. Finally, in 2018, Rodriguez Diaz was arrested on seven felony counts relating to a domestic dispute involving his wife and child. He was convicted of spousal battery and intimidation of a witness, and was sentenced to 276 days in jail and 36 months of probation. By this time, ICE had also received a report from local law enforcement that Rodriguez Diaz had admitted to being a gang member on two occasions.

On or about December 18, 2018, Rodriguez Diaz was released from the San Mateo County Jail and taken into ICE custody pursuant to 8 U.S.C. § 1226(a), which allows the government to arrest and detain aliens "pending a decision on whether the alien is to be removed from the United States." 8 U.S.C. § 1226(a). Approximately two months later, on February 27, 2019, Rodriguez Diaz had a bond hearing before an IJ on the issue of whether his detention was justified because he presented a flight risk or a danger to the community. As permitted by agency regulations, Rodriguez Diaz was represented by counsel.

At the hearing, the IJ questioned Rodriguez Diaz about his alleged gang affiliation. Rodriguez Diaz testified under oath that he never belonged to a gang and that his tattoo, which read "C.L.," did not stand for the gang "Carnales Locos" but rather "California Life." The IJ did not find this testimony credible and denied bond on the ground that Rodriguez Diaz was a danger to the community based on his gang membership. Although Rodriguez Diaz could have appealed the IJ's decision to the Board of Immigration Appeals (BIA), he did not do so.

On May 13, 2019, the IJ denied Rodriguez Diaz's application for CAT relief and ordered him removed. Rodriguez Diaz appealed to the BIA, which dismissed his appeal in October 2019. Rodriguez Diaz then filed in this Court a petition for review of the BIA's decision. He also contemporaneously requested a temporary stay of removal, which we granted.

Meanwhile, on September 16, 2019, Rodriguez Diaz's conviction for drug possession was vacated. Rodriguez Diaz thereafter filed a motion to reopen his removal proceedings, arguing among other things that the vacatur of his conviction meant that he was newly eligible for cancellation of removal and adjustment of status. After the agency denied his motion to reopen, Rodriguez Diaz filed a second petition for review in this Court. We consolidated this petition with Rodriguez Diaz's earlier petition for review concerning the denial of his CAT claim. Proceedings on the consolidated petitions remain ongoing in this Court and are not part of this case.¹

Around this time, in February 2020, Rodriguez Diaz also filed a motion for a new bond and custody redetermination hearing before the IJ. As we will explain in greater detail, § 1226(a)'s implementing regulations allow detainees to seek an additional bond hearing before an IJ whenever they experience a material change in circumstances warranting a redetermination of custody status. See 8 C.F.R. § 1003.19(e). In his motion, Rodriguez Diaz claimed that the vacatur of his drug conviction and his efforts at rehabilitation constituted material changes in circumstances. Rodriguez Diaz admitted that he used to be a member of Carnales Locos but claimed he had cut ties with the gang.

The IJ denied the motion on February 24, 2020, finding that Rodriguez Diaz's representations about his gang affiliation were not credible given his prior false testimony on the matter, and that Rodriguez Diaz was therefore still a danger to the community. Thus, Rodriguez Diaz had not shown materially changed circumstances justifying a new bond hearing. On March 11, 2020, Rodriguez Diaz appealed the IJ's decision to the BIA.

Before the BIA could rule, however, Rodriguez Diaz filed a habeas petition in federal district court under 28 U.S.C. § 2241. In his petition, Rodriguez Diaz claimed that his detention was unconstitutionally prolonged and that he should at minimum receive a new bond hearing as a matter of due process, with the government bearing the burden of proof.

On April 27, 2020, the district court granted Rodriguez Diaz's habeas petition in relevant part. The district court ruled that Rodriguez Diaz was constitutionally entitled to another bond hearing before the IJ. The court further ordered that the hearing deviate from ordinary agency procedures, in that the government should bear the burden of proving by clear and convincing evidence that Rodriguez Diaz was a flight risk or a danger to the community.

In response to the district court's order, the IJ conducted a new hearing using the district court's prescribed procedures, after which the IJ granted Rodriguez Diaz bond in the amount of $10,000. Rodriguez Diaz posted bond on May 15, 2020, and he was released, having spent approximately a year and a half in immigration detention. The government timely appealed the district court's decision, which we review de novo. Miranda v. Anchondo , 684 F.3d 844, 849 (9th Cir. 2012).²

II

Rodriguez Diaz's habeas petition emerges from a long line of circuit precedent addressing the process available to detained aliens, specifically, whether and when they are entitled to additional bond hearings and the procedures that should govern them. We previously applied the canon of constitutional avoidance to interpret other immigration provisions— 8 U.S.C. §§ 1225(b), 1226(c), and 12...