AROLDO RODRIGUEZ DIAZ V. MERRICK GARLAND ( 2022 )

FILED
FOR PUBLICATION NOV 21 2022
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AROLDO ALBERTO RODRIGUEZ No. 20-16245
DIAZ,
Petitioner-Appellee, D.C. No.
4:20-cv-01806-
YGR
v. OPINION
MERRICK B. GARLAND, Attorney
General; CHAD F. WOLF, DAVID
JENNINGS; WENDELL
ANDERSON
Respondents-Appellants.
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Argued and Submitted December 7, 2021
Submission Vacated February 9, 2022
Resubmitted November 21, 2022
San Francisco, 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
SUMMARY *
Immigration/Detention
Reversing a judgment of the district court that granted Aroldo
Alberto Rodriguez Diaz’s habeas petition challenging his
continued immigration detention under 8 U.S.C. § 1226(a),
and remanding, the panel held that due process does not
require the agency to provide a second bond hearing at which
the government bears the burden of proof by clear and
convincing evidence.
After his release from incarceration, Rodriguez Diaz was
detained pursuant to 8 U.S.C. § 1226(a), which allows the
government to detain aliens pending a decision on whether
the alien is to be removed. An Immigration Judge held a
hearing and denied bond. Approximately 14 months later,
Rodriguez Diaz requested a second bond hearing, but the IJ
denied the motion, and Rodriguez Diaz appealed to the
BIA. Before the BIA could rule, Rodriguez Diaz filed a
habeas petition.
The district court granted Rodriguez Diaz’s habeas petition in
relevant part, ruling that he was constitutionally entitled to
another bond hearing, and ordering that the hearing deviate
from ordinary agency procedures, in that the government
should bear the burden of proving by clear and convincing
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
evidence that he was a flight risk or a danger to the
community. After such a hearing, the IJ granted bond and
Rodriguez Diaz was released.
Before this court, Rodriguez Diaz claimed that due process
requires the procedures that the district court imposed. The
panel explained that this court previously applied the canon
of constitutional avoidance to interpret other immigration
provisions as providing a statutory right to a bond hearing
once detention becomes prolonged. Having implied such a
right, this court then concluded that, as a matter of due
process, the government must bear the burden of proof in
such hearings. However, in Jennings v. Rodriguez, 138 S. Ct.
830 (2018), the Supreme Court concluded that the
requirements this court had imposed lacked any arguable
statutory foundation and did not reach the constitutional
issue.
The panel determined that prior precedent did not resolve
Rodriguez Diaz’s due process challenge. The panel also
observed that the First and Second Circuits have held that the
Due Process Clause entitles § 1226(a) detainees to an
additional bond hearing after prolonged detention, while the
Third and Fourth Circuits are on the other side of the
question. Further, the panel explained that the Supreme
Court has endorsed the proposition that Congress may make
rules as to aliens that would be unacceptable if applied to
citizens. Because of this unique treatment of aliens, the
government contended that the court should not apply the
traditional three-factor balancing test set forth in Mathews v.
Eldridge, 424 U.S. 319 (1976). Because the panel concluded
that the Rodriguez Diaz’s claims failed even under the
Mathews test, which is presumably more favorable to him
than the test the government sought, the panel assumed
without deciding that Mathews applied here.
As to the first Mathews factor—the private interest affected
by the official action—the panel concluded that this factor
weighed in Rodriguez Diaz’s favor. The panel assumed that
Rodriguez Diaz’s fourteen-month detention after his first
bond hearing was “prolonged,” explaining that this court has
held that an individual’s private interest in freedom from
prolonged detention is unquestionably substantial, and
observing that the government did not seriously dispute that
Rodriguez Diaz had a legitimate and reasonably strong
private liberty interest under Mathews.
Taking the third Mathews factor next—the government’s
interest—the panel concluded that the government clearly has
a strong interest in preventing aliens from remaining in the
country in violation of law. Because the enforcement of
immigration law serves both a domestic law enforcement and
foreign relations function, the Supreme Court has specifically
instructed that courts must weigh heavily in the balance that
control over matters of immigration is a sovereign
prerogative, largely within the control of the executive and
the legislature.
As to the second Mathews factor—the risk of erroneous
deprivation of such interest through the procedures used, and
the probable value, if any, of additional or substitute
procedural safeguards—the panel concluded that the existing
procedures sufficiently protected Rodriguez Diaz’s liberty
interest and mitigated the risk of erroneous deprivation. The
panel explained that the agency’s detention decision was
subject to numerous levels of review and that these
procedures ensured that the risk of erroneous deprivation
would be relatively small.
Accordingly, the panel held that § 1226(a)’s procedures
satisfy due process, both facially and as applied to Rodriguez
Diaz, and remanded for dismissal of the habeas petition.
Concurring, Judge Bumatay wrote that to the extent that the
court’s precedent required the panel to decide this case
through the lens of Mathews, he fully joined the majority
opinion. However, Judge Bumatay concluded that the case
would be better decided through the text, structure, and
history of the Constitution, rather than through interest
balancing. Judge Bumatay concluded that under the original
understanding of the Due Process Clause, Rodriguez Diaz’s
claim must fail; as a matter of text, structure, and history,
Congress may authorize the government to detain removable
aliens throughout their removal proceedings and nothing in
the Due Process Clause requires individualized bond
determinations beyond what Congress established in §
1226(a)—let alone under the heightened burden placed on the
government by the district court here.
Dissenting, Judge Wardlaw wrote that she would affirm the
district court. While Judge Wardlaw agreed that the Mathews
test was the appropriate legal framework to apply, she could
not agree with the majority’s balancing of the Mathews
factors. Observing that there was no question that the
government has a strong interest, Judge Wardlaw wrote that
the majority failed to account for the high risk of procedural
error and the importance of Rodriguez Diaz’s strong
individual liberty interest. Explaining that this court’s
precedent instructs that Fifth Amendment procedural
protections should be evaluated with even more scrutiny the
longer an individual’s liberty is deprived, Judge Wardlaw
concluded that after six months, Rodriguez Diaz’s liberty
interest outweighed the government’s interest, and the
procedures afforded to him under § 1226(a) deprived him of
his bodily liberty in violation of the Due Process Clause.
COUNSEL
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.
RODRIGUEZ DIAZ V. GARLAND 1
OPINION
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
RODRIGUEZ DIAZ V. GARLAND 2
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
RODRIGUEZ DIAZ V. GARLAND 3
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
RODRIGUEZ DIAZ V. GARLAND 4
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.
1
We are informed that Rodriguez Diaz’s 2018 application
for asylum remains pending with the U.S. Citizenship and
Immigration Services (USCIS), which, under agency
procedures for applications filed by unaccompanied minors,
retains authority over the application despite the initiation of
removal proceedings. At the time he sought asylum,
Rodriguez Diaz was an unaccompanied minor.
RODRIGUEZ DIAZ V. GARLAND 5
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
2
The government’s compliance with the district court’s
order does not moot its appeal. United States v. Golden
Valley Elec. Ass’n, 689 F.3d 1108, 1112–13 (9th Cir. 2012).
RODRIGUEZ DIAZ V. GARLAND 6
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
1231(a)(6)—as providing a statutory right to a bond hearing
once detention becomes prolonged. Having implied such a
right, we then concluded that for these hearings to comply
with due process, the government had to bear the burden of
proving by clear and convincing evidence that the alien
poses a flight risk or a danger to the community. See Singh
v. Holder, 638 F.3d 1196, 1203–05 (9th Cir. 2011). Relying
on these cases, Rodriguez Diaz argues (and the district court
agreed) that he is entitled to Singh’s burden-shifting
framework even though he is detained under a different
statutory provision with its own procedural safeguards in
place.
We disagree. Key aspects of our cases in this area are no
longer good law, and regardless, they do not otherwise
govern here. The Supreme Court has now twice overturned
our decisions that invoked the canon of constitutional
avoidance to interpret other immigration detention
provisions as impliedly providing the right to a bond hearing.
Singh’s holding about the appropriate procedures for those
bond hearings—which also arose under different statutory
provisions than the one here—was expressly premised on the
(now incorrect) assumption that these hearings were
statutorily authorized. Singh did not purport to establish a
freestanding set of constitutionally mandated procedures
that would apply to any detained alien. On the contrary, and
as we will discuss, neither our Court nor the Supreme Court
has ever directly addressed the type of constitutional
challenge to alien detention bond procedures that we
consider here—whether under § 1226(a) or otherwise.
Before we turn to the merits of Rodriguez Diaz’s claim
RODRIGUEZ DIAZ V. GARLAND 7
that he is entitled to additional procedure under the Due
Process Clause, we first explain why this question remains
an open one.
A
We start with an overview of the statutory scheme
governing immigration detention. This background is
important in understanding both our precedents and the
differences posed by detention under § 1226(a) as compared
to other provisions.
The provision at issue in this case, 8 U.S.C. § 1226,
provides the general process for arresting and detaining
aliens who are present in the United States and eligible for
removal. Section 1226 “distinguishes between two different
categories of aliens.” Jennings v. Rodriguez, 138 S. Ct. 830,
837 (2018). Section 1226(a) establishes the “default rule,”
id., giving the Attorney General “broad discretion” over
detention matters, Nielsen v. Preap, 139 S. Ct. 954, 956
(2019). This provision authorizes the Attorney General, in
his discretion, 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).
For these individuals, the Attorney General can either
“continue to detain the arrested alien,” or “may release the
alien on (A) bond of at least $1,500 . . . or (B) conditional
parole.” Id. § 1226(a)(1)–(2). When a person is
apprehended under § 1226(a), an ICE officer makes the
initial custody determination. 8 C.F.R. § 236.1(c)(8). The
alien will be released if he “demonstrate[s] to the satisfaction
of the officer that such release would not pose a danger to
property or persons, and that the alien is likely to appear for
any future proceeding.” Id.RODRIGUEZ DIAZ V. GARLAND 8
Section 1226(c), on the other hand, carves out a class of
aliens for whom detention is mandatory. 8 U.S.C. § 1226(c).
This includes individuals who have committed certain
enumerated offenses or who have been involved in drug
trafficking or terrorist activities. Id. § 1226(c)(1). ICE may
only release a person detained pursuant to this provision if
necessary for witness protection purposes. Id. § 1226(c)(2);
see also Jennings, 138 S. Ct. at 838.
Sections 1226(a) and 1226(c) also differ as to the
procedural protections afforded once an alien is already
detained. Under § 1226(a) and its implementing regulations,
a detainee may request a bond hearing before an IJ at any
time before a removal order becomes final. See 8 C.F.R.
§§ 236.1(d)(1), 1003.19. If at this hearing the detainee
demonstrates by the preponderance of the evidence that he
is not “a threat to national security, a danger to the
community at large, likely to abscond, or otherwise a poor
bail risk,” the IJ will order his release. Matter of Guerra, 24
I. & N. Dec. 37, 40 (B.I.A. 2006); see also Matter of
Barreiros, 10 I. & N. Dec. 536, 537–38 (B.I.A. 1964). The
IJ considers various factors in making this determination,
including the individual’s ties to the United States as well as
his employment history, criminal record, history of
immigration violations, and manner of entry into this
country. Matter of Guerra, 24 I. & N. Dec. at 40. The IJ
also decides whether bond or other conditions on the alien’s
release are appropriate. Id.; see 8 U.S.C. § 1226(a)(2). The
detainee may be represented by counsel and can submit
evidence in support of his claims. See 8 C.F.R.
§ 1003.19(b); Matter of Fatahi, 26 I. & N. Dec. 791, 792
(B.I.A. 2016). He can also appeal an adverse decision to the
BIA. See 8 C.F.R. § 236.1(d)(3).
On top of this, an individual detained pursuant to
§ 1226(a) may request an additional bond hearing whenever
RODRIGUEZ DIAZ V. GARLAND 9
he experiences a material change in circumstances. See 8
C.F.R. § 1003.19(e). The same procedures apply to this new
hearing, and its outcome is also appealable to the BIA. See
generally id. § 1003.19. By contrast, § 1226(c) on its face
offers no opportunity for release on bond. See 8 U.S.C.
§ 1226(c); Prieto-Romero v. Clark, 534 F.3d 1053, 1066
(9th Cir. 2008).
Additional provisions supplement § 1226’s detention
scheme. Section 1225(b) applies to an “applicant for
admission,” that is, “[a]n alien present in the United States
who has not been admitted or who arrives in the United
States.” 8 U.S.C. § 1225(a)(1). Under § 1225(b)(1), an
applicant for admission “initially determined to be
inadmissible due to fraud, misrepresentation, or lack of valid
documentation” is “normally ordered removed ‘without
further hearing or review’ pursuant to an expedited removal
process.” Jennings, 138 S. Ct. at 837 (quoting 8 U.S.C.
§ 1225(b)(1)(A)(i)). But if the alien applies for asylum and
has a credible fear of persecution, “the alien shall be detained
for further consideration of the application.” 8 U.S.C.
§ 1225(b)(1)(B)(ii). All other applicants for admission are
covered by § 1225(b)(2), which “serves as a catchall
provision,” Jennings, 138 S. Ct. at 837, and which mandates
detention “if the examining immigration officer determines
that an alien seeking admission is not clearly and beyond a
doubt entitled to be admitted,” 8 U.S.C. § 1225(b)(2)(A).
Once an alien has a final removal order that is not subject
to a judicial stay, detention authority shifts to 8 U.S.C.
§ 1231(a). See Jennings, 138 S. Ct. at 843; Diouf v.
Napolitano, 634 F.3d 1081, 1085 (9th Cir. 2011); 8 U.S.C.
§ 1231(a)(1)(B). Section 1231(a) provides that “the
Attorney General shall remove the alien from the United
States within a period of 90 days.” 8 U.S.C.
§ 1231(a)(1)(A). “During the removal period, the Attorney
RODRIGUEZ DIAZ V. GARLAND 10
General shall detain the alien.” Id. § 1231(a)(2). Certain
individuals—such as those who are convicted criminals,
terrorists, or who are otherwise “determined by the Attorney
General to be a risk to the community or unlikely to comply
with the order or removal”—“may be detained beyond the
removal period.” Id. § 1231(a)(6). Like § 1226(c), neither
§ 1225(b) nor § 1231(a) on their face provides for bond
hearings. See generally id. §§ 1225(b), 1231(a)(2),
1231(a)(6).
B
We now turn to the case law on which Rodriguez Diaz
relies. We conclude that our cases do not resolve Rodriguez
Diaz’s due process challenge to his detention under §
1226(a).
1
The relevant line of authority begins with Zadvydas v.
Davis, 533 U.S. 678 (2001). There, the Supreme Court
addressed whether § 1231(a)(6)’s language providing that
certain aliens “may be detained beyond the removal period
[of 90 days]” authorized indefinite detention. Id. at 682
(quoting 8 U.S.C. § 1231(a)(6)). Although the challengers
raised both statutory and constitutional objections to the
government’s detention authority under this aspect of
§ 1231(a)(6), Zadvydas resolved only the former. See id. at
686, 689.
Zadvydas determined that the text of § 1231(a)(6) was
unclear on the relevant question due to ambiguity in the word
“may,” but that the statute would raise “serious
constitutional concerns” if it did indeed permit indefinite
detention. Id. at 682, 697. The Court therefore applied the
canon of constitutional avoidance to “construe the statute to
RODRIGUEZ DIAZ V. GARLAND 11
contain an implicit ‘reasonable time’ limitation.” Id. at 682.
The Court further concluded that a “reasonable time” would
be six months: at this point, “once the alien provides good
reason to believe that there is no significant likelihood of
removal in the reasonably foreseeable future,” the
government must either rebut that showing or release the
alien. Id. at 701.
A few years later, in Casas-Castrillon v. DHS, 535 F.3d
942 (9th Cir. 2008), we confronted a similar challenge to
detention under § 1226(c). The petitioner, Casas, was a legal
permanent resident who had been mandatorily detained
under § 1226(c), and his detention continued for seven years
without a bond hearing while he sought review of his
removal order. Id. at 944–46. Eventually, Casas filed a
habeas petition seeking “a meaningful opportunity to contest
the necessity of continued detention.” Id. at 945.
We acknowledged that the Supreme Court in Demore v.
Kim, 538 U.S. 510 (2003), had previously upheld the
constitutionality of mandatory detention under § 1226(c).
See Casas, 535 F.3d at 949–50. But we reasoned that
Demore had assumed that any detention period would be
brief. Id. By contrast, unusually prolonged periods like
Casas’s raised “serious constitutional concerns.” Id. at 950.
Relying on our earlier decision in Tijani v. Willis, 430
F.3d 1241 (9th Cir. 2005), we then applied the canon of
constitutional avoidance to interpret § 1226(c) as ceasing to
govern “upon the dismissal of the alien’s appeal by the
BIA,” although notably, we reached no conclusion about the
constitutionality of § 1226(c) absent this interpretation.
Casas, 535 F.3d at 947–48; see also id. at 951. We
concluded that once the BIA dismissed the alien’s appeal,
“detention authority shift[s] to § 1226(a).” Id. at 947. And
relying again on the canon of constitutional avoidance, we
RODRIGUEZ DIAZ V. GARLAND 12
“h[e]ld that § 1226(a) must be construed as requiring the
Attorney General to provide the alien with” a bond hearing.
Id. at 951. This meant that Casas was now entitled to a bond
hearing, like all § 1226(a) detainees. Id. at 951–52; see also
8 C.F.R. §§ 236.1(d)(1), 1003.19. We later extended our
holding in Casas to any alien detained under § 1226(c) for
more than six months, “[r]egardless of the stage of
proceedings.” Rodriguez v. Robbins, 715 F.3d 1127, 1138–
39 (9th Cir. 2013) (quotations omitted).
Then, in Diouf v. Napolitano, 634 F.3d 1081 (9th Cir.
2011) (Diouf II), we “extend[ed]” the logic of Casas to
individuals detained under § 1231(a)(6). Id. at 1084–86.
Once again, we invoked the canon of constitutional
avoidance to interpret § 1231(a)(6) as conferring the
statutory right to a bond hearing. Id. at 1086. And once
again, we did not reach the petitioner’s constitutional claims.
Id. We further clarified that “[a]s a general matter, detention
is prolonged when it has lasted six months and is expected
to continue more than minimally beyond six months.” Id. at
1091–92 & n.13. It is therefore at this point that the
statutorily implied bond hearing requirement kicks in, for
persons detained initially under both § 1226(c) and
§ 1231(a)(6). See id.
Neither Casas nor Diouf II explained what procedures
would apply to the bond hearings that we read into §§
1226(c) and 1231(a)(6). We took up that question in Singh
v. Holder, 638 F.3d 1196 (9th Cir. 2011), in which an alien
detained without bond under § 1226(c) received a “Casas
hearing” approximately 16 months after he was first
detained. See id. at 1200–01; Brief for the Appellant, Singh
v. Holder, 638 F.3d 1196 (9th Cir. 2011) (No. 10-15715),
2010 WL 5650042, at *6. In Singh, we held that “in Casas
hearings, the government must prove by clear and
convincing evidence that continued detention is justified”
RODRIGUEZ DIAZ V. GARLAND 13
based on the alien’s flight risk or danger to the community.
Id. at 1200; see also id. at 1205 (“We therefore hold that the
clear and convincing evidence standard of proof applies in
Casas bond hearings.”). We based this conclusion on
general principles of procedural due process, reasoning that
a detained person’s liberty interest is substantial. Id. at
1203–05.
In our next major set of cases in this line, we considered
a class action brought on behalf of aliens who had been
detained for over six months without a bond hearing under
the various statutes we have discussed: §§ 1225(b), 1226(a),
1226(c), and 1231(a). See Rodriguez v. Hayes, 591 F.3d
1105, 1112 (9th Cir. 2010). After a long and complicated
procedural history, the details of which are not necessary to
our analysis, the district court entered a permanent
injunction requiring individualized bond hearings for all
class members. See Rodriguez v. Robbins, 804 F.3d 1060,
1065 (9th Cir. 2015) (Rodriguez III). Consistent with our
decision in an earlier appeal in that litigation, see Rodriguez
v. Robbins, 715 F.3d 1127 (9th Cir. 2013) (Rodriguez II), the
district court held that at these hearings, as in Singh, the
government should bear the burden of proof by clear and
convincing evidence. Rodriguez III, 804 F.3d at 1066; see
also Rodriguez II, 715 F.3d at 1132–33 (holding that “based
on our precedent, the canon of constitutional avoidance
requires us to construe the government’s statutory
mandatory detention authority under Section 1226(c) and
Section 1225(b) as limited to a six-month period, subject to
a finding of flight risk or dangerousness”).In Rodriguez III,
we affirmed the district court’s order with respect to those
class members detained under §§ 1225(b), 1226(a), and
RODRIGUEZ DIAZ V. GARLAND 14
1226(c). 3 Id. at 1078–85. We explained that “based on our
precedents,” namely Casas, Singh, and Diouf II, “the canon
of constitutional avoidance requires us to construe the
statutory scheme to provide all class members who are in
prolonged detention with bond hearings at which the
government bears the burden of proving by clear and
convincing evidence that the class member is a danger to the
community or a flight risk.” Id. at 1074. We acknowledged
that detainees under § 1226(a) were already entitled to a
bond hearing under the statute and implementing
regulations, but we explained that these hearings needed to
be provided automatically, as opposed to by request. Id. at
1084–85. And we further clarified that all class members
were entitled to periodic bond hearings every six months, not
just one hearing at the six-month mark. Id. at 1089.
2
The Supreme Court’s intervention would substantially
upend the circuit precedent we have just discussed. In
Jennings v. Rodriguez, 138 S. Ct. 830 (2018), the Supreme
Court reversed our decision in Rodriguez III, and with it,
some of the prior circuit precedent on which Rodriguez III
was based. Distinguishing Zadvydas, Jennings held that we
misapplied the canon of constitutional avoidance because
our interpretations of §§ 1225(b), 1226(a), and 1226(c) were
not plausible, as the requirements of periodic bond hearings
that we imposed lacked “any arguable statutory foundation.”
Id. at 842–44. The Court concluded that our interpretations
of §§ 1225(b) and 1226(c) as ceasing to govern after six
months were also not supported by the relevant provisions,
and that those provisions in fact “authorize detention until
3
We concluded that the § 1231(a) detainees were excluded
from the class definition because they had already been
ordered removed. Rodriguez III, 804 F.3d at 1085–86.
RODRIGUEZ DIAZ V. GARLAND 15
the end of applicable proceedings,” as opposed to under the
authority of § 1226(a). Id. at 842–43, 846.
As to § 1226(a), Jennings explained that “nothing in
§ 1226(a)’s text—which says only that the Attorney General
‘may release’ the alien ‘on . . . bond’—even remotely
supports the imposition” of “periodic bond hearings every
six months in which the Attorney General must prove by
clear and convincing evidence that the alien’s continued
detention is necessary.” Id. at 847. Therefore, the canon of
constitutional avoidance was inapposite because it “comes
into play only when, after the application of ordinary textual
analysis, the statute is found to be susceptible of more than
one construction.” Id. at 842 (quotations omitted).
The Supreme Court in Jennings did not reach the alleged
unconstitutionality of immigration detention absent the
procedural requirements we had read into the statute, and
instead remanded for consideration of the constitutional
question in the first instance. Id. at 851. We in turn
remanded to the district court, which has not yet issued a
decision. See Rodriguez v. Marin, 909 F.3d 252, 255 (9th
Cir. 2018); Rodriguez v. Barr, No. 20-55770, 2021 WL
4871067 (9th Cir. Oct. 19, 2021).
Following Jennings, we re-examined the applicable
procedures for immigration detention under § 1231(a)(6). In
Aleman Gonzalez v. Barr, 955 F.3d 762 (9th Cir. 2020), we
concluded that the procedural requirements imposed by
Singh and Diouf II on § 1231(a)(6) detention remained
intact, notwithstanding Jennings. See id. at 765–66. We
reasoned that Jennings addressed different statutory
provisions—§§ 1225(b), 1226(a), and 1226(c)—and thus
did not preclude reading procedural requirements into
§ 1231(a)(6) as a matter of statutory interpretation, using the
doctrine of constitutional avoidance. Id. at 777–78. We also
RODRIGUEZ DIAZ V. GARLAND 16
explained that Singh was decided on constitutional grounds,
and that Jennings explicitly left open any constitutional
questions that prolonged immigration detention may pose.
Id. at 781. We thus believed that Diouf II was not clearly
irreconcilable with Jennings, so that we were required to
follow it as a matter of binding circuit precedent when it
came to § 1231(a)(6). Id. at 765–66.
The Supreme Court again reversed, holding that under 8
U.S.C. § 1252(f)(1), the district court lacked jurisdiction to
issue the requested class-wide injunctive relief. Garland v.
Aleman Gonzalez, 142 S. Ct. 2057, 2062–63 (2022). In a
companion case decided that same day arising from the
Third Circuit, Johnson v. Arteaga-Martinez, 142 S. Ct. 1827
(2022), the Supreme Court separately rejected our statutory
interpretation in Aleman Gonzalez (which was itself based
on Diouf II). Arteaga-Martinez held that “there is no
plausible construction of the text of § 1231(a)(6) that
requires the Government to provide bond hearings before
immigration judges after six months of detention, with the
Government bearing the burden of proving by clear and
convincing evidence,” and that the statute “does not address
or even hint at the requirements imposed below.” Id. at 1833
(quotations and alterations omitted). As in Jennings,
however, the Court declined to resolve in the first instance
any constitutional challenges to the continued detention. Id.
at 1834–35.
Most recently, in Avilez v. Garland, 48 F.4th 915 (9th
Cir. 2022), we revisited our holding in Casas-Castrillon that
aliens who are detained under § 1226(c) become detained
under § 1226(a) once the BIA issues a final order of removal
and the alien files a petition for review in federal court. We
recognized that under the Supreme Court’s intervening
decision in Jennings, §§ 1226(a) and (c) “apply to discrete
categories of noncitizens—and not to different stages of a
RODRIGUEZ DIAZ V. GARLAND 17
noncitizen’s legal proceedings.” Id. at 923. Thus, Jennings
was “clearly irreconcilable with Casas-Castrillon’s
conclusion that a [§ 1226(c)] detainee who pursues judicial
review of an order of removal is detained first under [§
1226(c)] and later under [§ 1226(a)].” Id. at 925.
This meant that under circuit precedent, see Prieto-
Romero, 534 F.3d at 1062, an alien detained under § 1226(c)
was subject to that detention authority throughout the
administrative and judicial phases of her removal
proceedings, and was therefore not entitled to a bond hearing
under § 1226(c) as a statutory matter. Avilez, 48 F.4th, at
925–27. But we remanded the case for the district court to
consider the petitioner’s argument that she was entitled to a
bond hearing as a matter of due process. Id. at 927.
C
Our tour through these cases shows they do not resolve
Rodriguez Diaz’s procedural due process challenge to his
detention under § 1226(a). This is so for several reasons.
Most obviously, after the Supreme Court’s decisions in
Jennings and Arteaga-Martinez, it remains undetermined
whether the Due Process Clause requires additional bond
procedures under any immigration detention statute.
Although we previously concluded that bond hearings and
certain procedures were statutorily required under
§§ 1225(b), 1226(c), and 1231(a)(6) based on the doctrine of
constitutional avoidance, the Supreme Court has since held
that none of these rights exist as a statutory matter. Jennings,
138 S. Ct. at 836; Arteaga-Martinez, 142 S. Ct. at 1830. And
although we read certain procedures into § 1226(a) as a
matter of constitutional avoidance, see Rodriguez III, 804
F.3d at 1085, the Supreme Court disagreed with that, too, see
Jennings, 138 S. Ct. at 847–48.
RODRIGUEZ DIAZ V. GARLAND 18
Thus, although Singh relied on the Due Process Clause
in determining the procedural rights available to alien
detainees, it did so in service of an implied statutory right to
a bond hearing for persons detained under § 1226(c)—an
implied right that the Supreme Court has now rejected.
Jennings, 138 S. Ct. at 836. Because Singh “specifie[d] the
appropriate standard of proof” for the bond hearings arising
from § 1226(c) detentions that we (erroneously) believed
were statutorily required, we have not addressed the
potential applicability, if any, of Singh’s holding absent that
perceived statutory right (and we have no occasion to do so
in this case outside of § 1226(a)). See Singh, 638 F.3d at
1203. 4
To the extent that any parts of Singh, Casas, Diouf II,
and Rodriguez II remain good law—an issue we need not
decide—those cases in relevant part addressed detention
under §§ 1225(b), 1226(c), or 1231(a)(6), not detention that
was based on § 1226(a) throughout. Here, we deal with
§ 1226(a), which is challenged on constitutional grounds.
Once again, we have never addressed the constitutionality of
the detailed procedures in § 1226(a) and its implementing
regulations.
As our own precedents demonstrate, § 1226(a) stands
out from the other immigration detention provisions in key
respects. Section 1226(a) and its implementing regulations
4
It is apparent that between Jennings and Arteaga-Martinez,
various past cases of ours (and statements in past cases) are
no longer good law. We do not purport to offer a final
accounting on that score for matters that are beyond the
scope of this opinion. Thus, and by way of minor
clarification with the dissenting opinion, we have no
occasion to decide whether Singh remains good law in any
respect following Jennings.
RODRIGUEZ DIAZ V. GARLAND 19
provide extensive procedural protections that are
unavailable under other detention provisions, including
several layers of review of the agency’s initial custody
determination, an initial bond hearing before a neutral
decisionmaker, the opportunity to be represented by counsel
and to present evidence, the right to appeal, and the right to
seek a new hearing when circumstances materially change.
See generally 8 U.S.C. § 1226(a)(1)–(2); 8 C.F.R. §§ 236.1,
1003.19.
Indeed, while our past precedents mandated certain
procedures for detainees under §§ 1225(b), 1226(c),
and 1231(a)(6) as a matter of constitutional avoidance, the
holdings of those cases were premised on the lack of process
that was afforded to those aliens as compared to § 1226(a)
detainees. See Casas, 535 F.3d at 951–52 (observing that
§ 1226(c) “falls far short of the procedural protections
afforded in ordinary bond hearings, where aliens may
contest the necessity of their detention before an
immigration judge and have an opportunity to appeal that
determination”); Diouf II, 634 F.3d at 1088 (holding that the
government’s interests “do not warrant categorically
denying to § 1231(a)(6) detainees the right to a bond hearing
that § 1226(a) detainees already enjoy”); see also Prieto-
Romero, 534 F.3d at 1066 (distinguishing aliens detained
under §§ 1226(a) and 1226(c) because the latter “never
received any individualized bond determination”).
Consistent with that observation, we in fact cited
§ 1226(a)’s procedures as a reference point for what we
believed should be required under these other statutory
provisions. See Diouf II, 634 F.3d at 1084 (“We hold that
individuals detained under § 1231(a)(6) are entitled to the
same procedural safeguards against prolonged detention as
individuals detained under § 1226(a).”); Casas, 535 F.3d at
948 (explaining that once Casas had a removal order,
RODRIGUEZ DIAZ V. GARLAND 20
detention authority “shifted instead to § 1226(a)” and thus
entitled him to a bond hearing); Rodriguez II, 715 F.3d at
1144 (same for § 1225(b) detainees).
For all these reasons, prior precedent does not resolve the
due process challenge to § 1226(a) that Rodriguez Diaz
asserts here. Both our Court and the Supreme Court have
repeatedly declined to decide constitutional challenges to
bond hearing procedures in the immigration detention
context, whether the claims were brought by an alien held
under § 1226(a) or another provision. We have never held
that Singh provided the constitutional baseline for persons
like Rodriguez Diaz, who were never mandatorily detained
and who have been subject to § 1226(a) and its
implementing regulations throughout their detention. And
§ 1226(a) provides substantially different procedures than
the provisions we have examined in the past. We therefore
cannot accept Rodriguez Diaz’s suggestion that Casas and
Singh mandate the same procedural relief in this case.
III
Unencumbered by binding circuit precedent, we now
address head-on the question presented in this case: does the
Due Process Clause entitle Rodriguez Diaz to a second bond
hearing at which the government bears the burden of proof
by clear and convincing evidence? We hold that the Due
Process Clause does not so require.
As a threshold issue, we note some ambiguity about the
precise nature of Rodriguez Diaz’s claims, in that it is
unclear whether Rodriguez Diaz challenges § 1226(a)’s
procedures facially, as applied, or both. A facial challenge
is “a claim that the legislature has violated the Constitution,”
meaning that “the plaintiff must show that ‘no set of
circumstances exists under which the statute would be
RODRIGUEZ DIAZ V. GARLAND 21
valid.’” Young v. Hawaii, 992 F.3d 765, 779 (9th Cir. 2021)
(quoting Hotel & Motel Ass’n of Oakland v. City of Oakland,
344 F.3d 959, 971 (9th Cir. 2003)) (alterations omitted). An
as-applied challenge, meanwhile, “focuses on the statute’s
application to the plaintiff,” and requires the court to only
assess the circumstances of the case at hand. Wells Fargo
Bank, N.A. v. Mahogany Meadows Ave. Tr., 979 F.3d 1209,
1217 (9th Cir. 2020).
At oral argument, Rodriguez Diaz clarified that he is
seeking a ruling that would mandate bond hearings for all
aliens detained under § 1226(a) for a “prolonged” period.
With that, he seemingly forgoes a challenge to the validity
of the procedures as applied to shorter detention periods, and
thus disclaims a true facial challenge. See Young, 992 F.3d
at 779. But other aspects of his argument would appear to
require across-the-board changes to the procedures that
govern § 1226(a) detentions, and are in that way reminiscent
of a broader, facial-type challenge. And Rodriguez Diaz did
state in his brief that “[t]he current framework procedures
are unlawful for any length of detention,” which is again
indicative of a facial challenge. We conclude that Rodriguez
Diaz’s claims fail whether construed as facial or as-applied
challenges to § 1226(a).
A
We begin with an overview of how other courts have
approached this issue. Although our circuit has yet to
address this type of challenge (as we explained above), other
circuits have broached the issue. And they have divided over
the constitutionality of § 1226(a)’s procedures.
The First and Second Circuits have held that the Due
Process Clause entitles § 1226(a) detainees to an additional
bond hearing after prolonged periods of detention.
RODRIGUEZ DIAZ V. GARLAND 22
However, the facts on which those courts reached their
conclusions differed, as do their holdings regarding the
procedures the agency must follow in these hearings.
In Hernandez-Lara v. Lyons, 10 F.4th 19 (1st Cir. 2021),
the First Circuit considered a habeas petition brought by an
alien who had been detained under § 1226(a) for
approximately ten months, and who had received a bond
hearing one month into her detention. Id. at 24–26. Over a
vigorous dissent by Judge Lynch, the majority concluded
that § 1226(a)’s procedures were invalid as applied to all
aliens subject to “prolonged” detention. Id. at 30, 39–41.
Applying the balancing test in Mathews v. Eldridge, 424
U.S. 319 (1976), the First Circuit concluded that
Hernandez’s liberty interest was significant; the current
procedures created an unacceptable risk of error; and the
government’s proffered interest, although “legitimate,” was
outweighed by the private interest. Id. at 28–33.
The First Circuit held that the proper remedy was a new
bond hearing at which the government would bear the
burden of proof. Id. at 39–41. Specifically, the government
would need to prove by clear and convincing evidence that
the alien was a danger to the community, but need only prove
by a preponderance of the evidence that she was a flight risk.
Id. at 40. The reason for this difference in standards of proof,
the court explained, is that there is “less risk of error”
regarding flight risk because detainees “possess knowledge
of many of the most relevant factors,” whereas “the
government has ample and better access to evidence of
dangerousness.” Id. However, the court declined to decide
when detention became sufficiently “prolonged” to require
this remedy. Id. at 30 n.4.
Judge Lynch forcefully dissented on the due process
question. She maintained that “[t]he current procedures
RODRIGUEZ DIAZ V. GARLAND 23
provide detained noncitizens constitutionally sufficient
notice and opportunity to be heard,” and that the majority
was “arrogat[ing] to the judiciary control over immigration
bond procedures.” Id. at 53–54, 57 (Lynch, J., dissenting);
see also id. at 55 (“[T]he majority’s due process analysis is
contrary to Supreme Court precedent, contrary to precedent
from other circuits, and wrong.”).
The Second Circuit, too, concluded that § 1226(a)’s
procedures were constitutionally inadequate as applied to the
alien in that case. See Velasco Lopez v. Decker, 978 F.3d
842 (2d Cir. 2020). Velasco Lopez had been detained for
fifteen months under § 1226(a) while criminal proceedings
against him were ongoing, and had received a bond hearing
after three and a half months of detention. Id. at 846–47.
But notably, the government’s conduct in Velasco Lopez
presented some unique circumstances. In Velasco Lopez,
ICE refused to produce the alien for his court appearances
and, as a result, his criminal case could not progress. Id. at
852–53. But despite the agency’s role in delaying the
dismissal of the charges (which eventually occurred months
later), Velasco Lopez was denied bond because of the
pending charges. Id. Velasco Lopez also “struggled to
obtain” key records relating to his case that were in the
government’s possession, and ultimately had to resort to
filing a Freedom of Information Act request. Id. at 853 &
n.9.
The Second Circuit applied Mathews in a similar manner
as the First Circuit and held that once detention under
§ 1226(a) became “prolonged,” a detainee was entitled to a
new bond hearing at which the government bore the burden
of proof by clear and convincing evidence. Id. at 853–56.
The Second Circuit likewise declined to “establish a bright-
line rule” for when due process required these additional
procedures. Id. at 855 n.13.
RODRIGUEZ DIAZ V. GARLAND 24
On the other side of the question are the Third and Fourth
Circuits. The Third Circuit rejected a § 1226(a) detainee’s
request for a new bond hearing with a shifted burden after
the alien had been detained for fourteen months following
his initial bond hearing. Borbot v. Warden Hudson Cnty.
Corr. Facility, 906 F.3d 274, 275–77 (3d Cir. 2018).
According to the Third Circuit, Borbot did not challenge his
first bond hearing, and “Borbot cites no authority, and we
can find none, to suggest that duration alone can sustain a
due process challenge by a detainee who has been afforded
the process contemplated by § 1226(a) and its implementing
regulations.” Id. at 277.
The Third Circuit also rejected Borbot’s argument that
his situation was analogous to that of an alien subject to
prolonged mandatory detention under § 1226(c), who, under
Third Circuit precedent, was constitutionally entitled to “a
hearing[] at which the Government bears the burden of
proving that continued detention is necessary.” Id. at 277–
78 (quoting Diop v. ICE, 656 F.3d 221, 233 (3d Cir. 2011)).
The court explained that the holdings of those § 1226(c)
cases were “inappropriate in the context of § 1226(a),”
which already afforded Borbot a “prompt bond hearing” and
“an opportunity to obtain a redetermination hearing if he
could show materially changed circumstances.” Id. at 278.
Thus, the court reasoned, “Borbot was granted meaningful
process prior to filing his habeas petition,” and due process
did not require anything further. Id. at 279. 5
5
The dissent’s reliance on German Santos v. Warden Pike
County Correctional Facility. 965 F.3d 203 (3d Cir. 2020),
is misplaced. That case involved an alien who was detained
for over two and a half years under § 1226(c), which, as we
RODRIGUEZ DIAZ V. GARLAND 25
The Fourth Circuit agrees with the Third Circuit. See
Miranda v. Garland, 34 F.4th 338, 358 (4th Cir. 2022).
Applying Mathews, the court reasoned that, first, aliens are
“due less process when facing removal hearings than an
ordinary citizen.” Id. at 359. Second, § 1226(a) detainees
“already receive the fundamental features of due process—
notice and an opportunity to be heard.” Id. at 362. And
third, the government has a “vital public interest” in
enforcing immigration laws, which is facilitated by
detention during removal proceedings. Id. at 364. Thus,
§ 1226(a)’s procedures “do not violate the Constitution’s
Due Process Clause.” Id. at 365. 6
As we will now explain, we find the reasoning of the
Third and Fourth Circuits and Judge Lynch’s dissent most
consistent with the principles and precedents governing the
constitutionality of immigration detention.
have discussed, provides no statutory right to a bond hearing.
It was on this same basis that the Third Circuit in Borbot
distinguished its § 1226(c) line of cases. See Borbot, 906
F.3d at 278–79 (“Unlike § 1226(c) detainees . . . who were
detained for prolonged periods of time without being given
any opportunity to apply for release on bond, Borbot was
granted meaningful process prior to filing his habeas
petition.”).
6
In addition, in an unpublished decision, the Eighth Circuit
expressed “skeptic[ism]” that an alien’s “detention pending
a decision on whether he is to be removed under § 1226(a)
is unconstitutional considering he was given a bond hearing
and still has available procedural avenues to seek relief.” Ali
v. Brott, 770 F. App’x 298, 301 (8th Cir. 2019). The Eighth
Circuit noted that “Supreme Court precedent indicates such
a framework is constitutionally permissible.” Id.RODRIGUEZ DIAZ V. GARLAND 26
B
“The Fifth Amendment entitles aliens to due process of
law in deportation proceedings.” Hussain v. Rosen, 985 F.3d
634, 642 (9th Cir. 2021) (quoting Reno v. Flores, 507 U.S.
292, 306 (1993)) (alterations omitted). At the same time, we
interpret the Due Process Clause consistent with
longstanding precedent recognizing that the process due
aliens must account for the government’s countervailing
interests in immigration enforcement—considerations that
do not apply to U.S. citizens.
The recognized liberty interests of U.S. citizens and
aliens are not coextensive: the Supreme Court has “firmly
and repeatedly endorsed the proposition that Congress may
make rules as to aliens that would be unacceptable if applied
to citizens.” Demore, 538 U.S. at 522. That is because “any
policy toward aliens is vitally and intricately interwoven
with contemporaneous policies in regard to the conduct of
foreign relations, the war power, and the maintenance of a
republican form of government,” which are core sovereign
powers. Id. (quoting Mathews v. Diaz, 426 U.S. 67, 81 n.17
(1976)); see also id. (“The liberty rights of the aliens before
us here are subject to limitations and conditions not
applicable to citizens.”) (quoting Zadvydas, 533 U.S. at 718(Kennedy, J., dissenting)). The Supreme Court has
accordingly long upheld Congress’s authorization of
“detention during deportation proceedings as a
constitutionally valid aspect of the deportation process.” Id.
at 523; see also Flores, 507 U.S. at 306 (“Congress has the
authority to detain aliens suspected of entering the country
illegally pending their deportation hearings.”).
The government contends that the unique constitutional
treatment of detained aliens means that we should not apply
the traditional test set forth in Mathews v. Eldridge, 424 U.S.
RODRIGUEZ DIAZ V. GARLAND 27
319 (1976), in assessing Rodriguez Diaz’s due process
claims. Although the government is not specific about the
test we should apply instead, it appears to desire a
framework that focuses more exclusively on the
government’s asserted interests in detaining aliens who are
subject to removal. As the government points out, the
Supreme Court when confronted with constitutional
challenges to immigration detention has not resolved them
through express application of Mathews. See, e.g., Demore,
538 U.S. at 523, 526–29; see also Dusenbery v. United
States, 534 U.S. 161, 168 (2002) (“[W]e have never viewed
Mathews as announcing an all-embracing test for deciding
due process claims.”).
While we acknowledge the government’s arguments, we
note that when considering due process challenges to §
1226(a) like the one here, other circuits (reaching conflicting
outcomes) have applied the Mathews test. See Miranda, 34
F.4th at 358–59; Hernandez-Lara, 10 F.4th at 27–28;
Velasco Lopez, 978 F.3d at 851. We have also applied
Mathews in holding that the IJ is required to consider
financial circumstances and alternative conditions of release
in setting a monetary bond under § 1226(a). Hernandez v.
Sessions, 872 F.3d 976, 993–95 (9th Cir. 2017). And we
have regularly applied Mathews to due process challenges to
removal proceedings. See, e.g., Cruz Pleitez v. Barr, 938
F.3d 1141, 1145–46 (9th Cir. 2019); Flores-Chavez v.
Ashcroft, 362 F.3d 1150, 1160–61 (9th Cir. 2004); Martinez-
de Bojorquez v. Ashcroft, 365 F.3d 800, 805 (9th Cir. 2004).
The Supreme Court also applied Mathews in Landon v.
Plasencia, 459 U.S. 21 (1982), in considering a due process
challenge to an immigration exclusion hearing. See id. at
34–35.
Ultimately, Mathews remains a flexible test that can and
must account for the heightened governmental interest in the
RODRIGUEZ DIAZ V. GARLAND 28
immigration detention context. See id. at 34; Pinnacle
Armor, Inc. v. United States, 648 F.3d 708, 716 (9th Cir.
2011) (stating that Mathews “is not a bright line test, but is
flexible depending on the circumstances”) (quoting Foss v.
Nat’l Marine Fisheries Serv., 161 F.3d 584, 589 (9th Cir.
1998)). And as we will explain, Rodriguez Diaz’s claims
fail even under the Mathews test, which is presumably more
favorable to him than the test the government seeks. Thus,
we assume without deciding that Mathews applies here.
C
Under Mathews, the “identification of the specific
dictates of due process generally requires consideration of
three distinct factors.” 424 U.S. at 334–35. “First, the
private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any,
of additional or substitute procedural safeguards; and finally,
the Government’s interest, including the function involved
and the fiscal and administrative burdens that the additional
or substitute procedural requirement would entail.” Id. at
335 (emphasis added).
The first Mathews factor, Rodriguez Diaz’s private
interest, weighs in his favor. Because, by the time of the
district court decision, Rodriguez Diaz was detained for
fourteen months following his first bond hearing, we will
assume that his detention qualifies as “prolonged” in a
general sense. See Diouf II, 634 F.3d at 1091 (holding that
once “the alien has been detained for approximately six
months,” “continuing detention becomes prolonged”);
Zadvydas, 533 U.S. at 701 (recognizing six months as a
presumptively constitutional removal period). We have also
held, more generally, that an individual’s private interest in
“freedom from prolonged detention” is “unquestionably
RODRIGUEZ DIAZ V. GARLAND 29
substantial.” Singh, 638 F.3d at 1208. Even though Singh
and Diouf II do not govern this case, the government for its
part does not seriously dispute that Rodriguez Diaz has a
legitimate and reasonably strong private liberty interest
under Mathews.
But it is important not to overstate the strength of
Rodriguez Diaz’s showing under the first Mathews factor,
either. With the possible exception of our now-overruled
decision in Rodriguez III, 804 F.3d at 1084–85, when we
have previously referred to detentions longer than six
months as “prolonged,” we have done so in the context of
detentions for which no individualized bond hearings had
taken place at all because the statutes on their faces did not
allow for them. See, e.g., Aleman Gonzalez, 955 F.3d at 772;
Diouf II, 634 F.3d at 1091–92 & n.13. Here, Rodriguez Diaz
received a bond hearing approximately two months after he
was detained under § 1226(a). He later sought a renewed
custody hearing based on allegedly changed circumstances.
Although by that point Rodriguez Diaz had been detained
for approximately fourteen months, he was not without
process during that time because a further bonding hearing
before an IJ was available to him throughout the period of
his detention upon a showing of materially changed
circumstances. See 8 C.F.R. § 1003.19(e).
We also cannot overlook that most of the period of
Rodriguez Diaz’s detention arose from the fact that he chose
to challenge before the BIA and later this Court the IJ’s
denial of immigration relief. See Demore, 538 U.S. at 531
n.14 (“‘[T]he legal system is replete with situations requiring
the making of difficult judgments as to which course to
follow,’ and, even in the criminal context, there is no
constitutional prohibition against requiring parties to make
such choices.”) (quoting McGautha v. California, 402 U.S.
183, 213 (1971)); see also Prieto-Romero, 534 F.3d at 1063–
RODRIGUEZ DIAZ V. GARLAND 30
65 & n.9 (holding that an alien’s detention was not
unconstitutionally indefinite when it was prolonged by a
challenge to his removal order, and distinguishing a case in
which the government made an “unusual move” that delayed
resolution) (quotations omitted). Rodriguez Diaz’s private
interests are further diminished by the fact that he is subject
to an order of removal from the United States.
In short, in evaluating Rodriguez Diaz’s interests under
the first prong of the Mathews analysis, we cannot simply
count his months of detention and leave it at that. We must
also consider the process he received during this time, the
further process that was available to him, and the fact that
his detention was prolonged due to his decision to challenge
his removal order. Indeed, as the government points out, by
Rodriguez Diaz’s (and the dissent’s) logic, § 1226(a) would
be unconstitutional as to most any alien who elects to
challenge a removal order, given the amount of time such a
typically challenge takes. 7
Taking the third Mathews factor next, the government
clearly has a strong interest in preventing aliens from
“remain[ing] in the United States in violation of our law.”
Demore, 538 U.S. at 518 (quotations omitted). Enforcement
of our immigration law serves both a domestic law
7
The dissent also would find relevant to the first Mathews
factor the fact that “Rodriguez Diaz did not receive the
procedural protections afforded to an individual in the
criminal justice system . . . including the right to counsel and
or a speedy trial.” But it is well-established that immigration
proceedings are “civil proceeding[s], in which many of the
protections afforded in the criminal context do not apply.”
El Rescate Legal Servs., Inc. v. Exec. Off. of Immigr. Rev.,
959 F.2d 742, 751 (9th Cir. 1991) (citing INS v. Lopez-
Mendoza, 468 U.S. 1032, 1038 (1984)).
RODRIGUEZ DIAZ V. GARLAND 31
enforcement and foreign relations function. The Supreme
Court has thus specifically instructed that in a Mathews
analysis, we “must weigh heavily in the balance that control
over matters of immigration is a sovereign prerogative,
largely within the control of the executive and the
legislature.” Plasencia, 459 U.S. at 34. “Over no
conceivable subject is the legislative power of Congress
more complete.” Flores, 507 U.S. at 305 (quotations and
alterations omitted).
This is especially true when it comes to determining
whether removable aliens must be released on bond during
the pendency of removal proceedings. The government has
an obvious interest in “protecting the public from dangerous
criminal aliens.” Demore, 538 U.S. at 515 (noting the
government’s justifications for the mandatory detention
policy in § 1226(c)). Through detention, the government
likewise seeks to “increas[e] the chance that, if ordered
removed, the aliens will be successfully removed.” Id. at
528; see also Nken v. Holder, 556 U.S. 418, 436 (2009)
(“There is always a public interest in prompt execution of
removal orders: The continued presence of an alien lawfully
deemed removable . . . permits and prolongs a continuing
violation of United States law.”) (quotations and alteration
omitted).
These are interests of the highest order that only increase
with the passage of time. The longer detention lasts and the
longer the challenges to an IJ’s order of removal take, the
more resources the government devotes to securing an
alien’s ultimate removal. The risk of a detainee absconding
also inevitably escalates as the time for removal becomes
more imminent. See Johnson v. Guzman Chavez, 141 S. Ct.
2271, 2290 (2021); see also Demore, 538 U.S. at 519 (noting
that Congress was presented with evidence that “[d]etention
is the key to effective deportation”) (quotations omitted).
RODRIGUEZ DIAZ V. GARLAND 32
Indeed, the Supreme Court has specifically recognized
Congress’s determination that the government has been
unable to remove deportable criminal aliens because of its
initial failure to detain them. Demore, 538 U.S. at 519. For
all these reasons, the government’s interests in this case are
significant. 8
The second Mathews factor is “the risk of an erroneous
deprivation of [Rodriguez Diaz’s] interest through the
procedures used, and the probable value, if any, of additional
or substitute procedural safeguards.” Mathews, 424 U.S. at
335. Here, we conclude that the existing agency procedures
sufficiently protected Rodriguez Diaz’s liberty interest and
mitigated the risk of erroneous deprivation.
Pursuant to § 1226(a) and its implementing regulations,
when ICE initially detained Rodriguez Diaz, an ICE officer
made an individualized custody determination. See 8 C.F.R.
§ 236.1(c)(8). This involved evaluating Rodriguez Diaz’s
likelihood of “appear[ing] for any future proceedings” and
potential “danger to property or persons.” Id. Rodriguez
Diaz was then able to request a second custody
determination before an IJ. Id. §§ 236.1(d)(1), 1003.19(b).
Within two months, Rodriguez Diaz received that bond
hearing, at which he was represented by counsel and could
8
The dissent errs in claiming, without proper support, that
“the government’s interest remains constant over the course
of an individual’s detention.” And while the dissent points
out that aliens detained under § 1231 are even more likely to
abscond, see Guzman Chavez, 141 S. Ct. at 2290, that only
confirms our point that the closer an alien is to being
removed, the greater the risk of flight. Equally unfounded is
the dissent’s contention that we have “presume[d] Rodriguez
Diaz will lose his appeal to the BIA and his petition for
review to us.” We have indulged no such presumption.
RODRIGUEZ DIAZ V. GARLAND 33
present evidence that might bear on the IJ’s determination.
After the IJ denied bond on account of Rodriguez Diaz’s
gang affiliation, Rodriguez Diaz had the right to appeal to
the BIA. See id. § 236.1(d)(3).
Although the IJ’s discretionary bond determination was
not reviewable in federal court, see 8 U.S.C. § 1226(e), we
would have had jurisdiction under 28 U.S.C. § 2241 to
consider any error of law in Rodriguez Diaz’s agency
proceedings, including any claimed due process violation.
See Martinez v. Clark, 36 F.4th 1219, 1224 (9th Cir. 2022)
(holding that federal courts have habeas jurisdiction over
“questions of law or constitutional questions” but not “an
immigration court’s determination that a noncitizen is a
danger to the community”); see also Singh, 638 F.3d at 1207
n.6.
Moreover, as we noted above, throughout the course of
his detention, Rodriguez Diaz has had the right to seek an
additional bond hearing if his circumstances materially
change. See 8 C.F.R. § 1003.19(e). After the vacatur of his
conviction for possession of a controlled substance,
Rodriguez Diaz availed himself of this right and sought what
would have been his third custody determination, and his
second before an IJ. The IJ denied this request because the
IJ’s initial decision was based on Rodriguez Diaz’s gang
affiliation (and his false testimony on that point), which the
vacated conviction did not affect. Once more, Rodriguez
Diaz had the right to appeal to the BIA, and he did so. See
generally id. § 1003.19. Nothing would have prevented
Rodriguez Diaz from seeking further bond redeterminations
based on materially changed circumstances that might arise
in the future over the course of his detention. And to the
extent that the agency made errors of law in denying
Rodriguez Diaz’s requests, these decisions would also be
subject to judicial review in habeas. Martinez, 36 F.4th at
RODRIGUEZ DIAZ V. GARLAND 34
1224.
In short, the agency’s decision to detain Rodriguez Diaz
was subject to numerous levels of review, each offering
Rodriguez Diaz the opportunity to be heard by a neutral
decisionmaker. These procedures ensured that the risk of
erroneous deprivation would be “relatively small.” See
Yagman v. Garcetti, 852 F.3d 859, 865 (9th Cir. 2017)
(upholding a scheme that offered “an opportunity to present
evidence and arguments” that would be “considered by the
reviewer”). The process that Rodriguez Diaz received was
substantially more extensive than in those cases in which we
(in error) invoked the doctrine of constitutional avoidance to
require additional procedures. See Casas, 535 F.3d at 945(seven years of detention with no opportunity to seek release
on bond, and no indication of opportunity for renewed
hearing based on changed circumstances); Singh, 638 F.3d
at 1203 (same for 16 months of detention); Rodriguez III,
804 F.3d at 1066, 1072 (same for nearly four and a half years
of detention for one class member).
We also note that Rodriguez Diaz received further
procedural protections on the merits of his applications for
relief from removal. This included the opportunity to seek a
temporary stay of removal, which he sought and received.
Although further review of his removal order would take
additional time and could thereby prolong his detention,
Rodriguez Diaz in this case has not demonstrated that the
fact of the review process following its ordinary course itself
created a due process violation. See Demore, 538 U.S. at531 n.14; Prieto-Romero, 534 F.3d at 1063–65 & n.9.
D
In response, Rodriguez Diaz advances several reasons
why he believes § 1226(a)’s procedures are constitutionally
RODRIGUEZ DIAZ V. GARLAND 35
inadequate. None is persuasive.
1
First, Rodriguez Diaz claims that he should not have
borne the burden of proof at his initial bond hearing. In
support of this position, he points to cases requiring the
government to justify the necessity of civil confinement for
U.S. citizens in various contexts. See, e.g., Foucha v.
Louisiana, 504 U.S. 71, 71, 80–82 (1992) (involuntary
psychiatric commitment of individuals acquitted of crimes
after presenting an insanity defense); United States v.
Salerno, 481 U.S. 739, 750–52 (1987) (pretrial detention);
Addington v. Texas, 441 U.S. 418, 425–27 (1979)
(involuntary commitment to a mental hospital).
It is true that we relied on this line of cases in Singh.
Singh, 638 F.3d at 1203–04. But for the reasons we have
explained, Singh does not govern here. And even assuming
Singh could remain good law in the § 1226(c) context, the
Mathews balancing there presented different considerations
than in this case. See Borbot, 906 F.3d at 278 (holding that
“the reasonableness inquiry we performed in [§ 1226(c)
cases] is inappropriate in the context of § 1226(a)” because
the inquiry is “a balancing framework that makes any
determination on reasonableness highly fact-specific”)
(quotations omitted); cf. Martinez, 36 F.4th at 1231 (holding
that “Singh offers the high-water mark of procedural
protections required by due process,” and declining to
“extend those protections any further” in a different context).
In Singh, the detainee had the right to a “Casas hearing”
and its attendant procedures only after his § 1226(c)
detention had become “prolonged,” which we later defined
to mean more than six months. See Singh, 638 F.3d at 1201;
Diouf II, 634 F.3d at 1091. By comparison, Rodriguez Diaz
RODRIGUEZ DIAZ V. GARLAND 36
was subject to § 1226(a) and its bond determination
processes from the onset of his detention. We therefore
respectfully disagree with the dissent that Singh, which does
not govern here, is “informative” as to the Mathews
balancing analysis in this case.
We have not previously held that cases involving
heightened burdens of proof for the deprivation of liberty
interests of U.S. citizens apply coextensively to alien
detainees who have been subject to § 1226(a) and its
procedures throughout the period of their detention. When,
as here, those processes have been available to the alien from
the beginning, we think under Mathews that the more
applicable line of authority is the Supreme Court’s
immigration detention cases. See Miranda, 34 F.4th at 359
& n.9 (agreeing that the Supreme Court’s civil commitment
cases are inapposite because they “involved detention of
United States citizens whereas § 1226(a) involves detention
of aliens awaiting removal hearings”).
In that respect, the Supreme Court has been clear: the
Constitution permits “rules that would be unacceptable if
applied to citizens.” Demore, 538 U.S. at 521; see also
Miranda, 34 F.4th at 359. That established principle is
particularly relevant here when the Supreme Court has also
previously upheld immigration detention schemes that
offered no opportunity for a bond hearing, much less one in
which the government bore the burden of proof. See
Demore, 538 U.S. at 513 (no bond hearing for § 1226(c)
detainees “for the brief period necessary for their removal
proceedings”); Flores, 507 U.S. at 303–04 (no
“individualized hearing on whether private placement would
be in the child’s ‘best interests’” for minors detained while
awaiting deportation hearings); Carlson v. Landon, 342 U.S.
524, 527–29, 542 (1952) (no bail hearing for detainees
awaiting their deportation hearing after the government
RODRIGUEZ DIAZ V. GARLAND 37
“made allegation, supported by affidavits” that they
belonged to the Communist Party). We are aware of no
Supreme Court case placing the burden on the government
to justify the continued detention of an alien, much less
through an elevated “clear and convincing” showing. See
Miranda, 34 F.4th at 362–63. 9
Nevertheless, amici supporting Rodriguez Diaz attempt
to expand on this part of his argument. They claim that
placing the burden on the alien creates an unacceptably high
risk of erroneous deprivation because detainees “face
tremendous language and cultural barriers,” have
“difficulty . . . obtaining evidence,” and “often lack financial
resources to hire an attorney.” The dissent makes some of
these same points.
Whatever the merit of these arguments in other cases—
and without deciding whether they could ever create
procedural error of constitutional magnitude—they bear no
relation to the facts of this case. Nor have amici
demonstrated that these issues are universally present such
that “no set of circumstances exists under which the statute
9
Indeed, as a historical matter, detained aliens did not
receive bond hearings. Demore, 538 U.S. at 523 n.7. In that
regard, we note that we do not consider in this case a
constitutional challenge to any other provision allowing the
detention of aliens. Nor do we decide whether the
government’s potentially stronger interest in detaining such
persons would affect the due process analysis. See, e.g.,
Zadvydas, 553 U.S. at 693 (noting that “certain
constitutional protections available to persons inside the
United States are unavailable to aliens outside of our
geographic borders,” and that “terrorism or other special
circumstances” may also call for “heightened deference to
the judgments of the political branches”).
RODRIGUEZ DIAZ V. GARLAND 38
would be valid.” Young, 992 F.3d at 779 (quotations and
alterations omitted).
Here, Rodriguez Diaz was represented by an attorney for
his initial bond hearing as well as his request for a new
hearing. He states that he is “more comfortable in English
than Spanish.” And he was able to gather considerable
evidence in support of his motion for a new bond hearing,
including five declarations from family members, twenty
letters of support from other individuals, six certificates of
completion for rehabilitation courses, his marriage license,
his wife’s medical records, his son’s birth record, and
documents bearing on his criminal record.
Rodriguez Diaz has not alleged difficulty obtaining any
piece of evidence, much less evidence that would be in the
government’s hands. Moreover, to the extent such
information existed and Rodriguez Diaz was unable to
obtain it, § 1226(a)’s procedures would have allowed
Rodriguez Diaz to raise that fact for the IJ’s consideration.
Nothing in this record suggests that placing the burden of
proof on the government was constitutionally necessary to
minimize the risk of error, much less that such burden-
shifting would be constitutionally necessary in all, most, or
many cases. There is no reason to believe that, as a general
proposition, the government will invariably have more
evidence than the alien on most issues bearing on alleged
lack of future dangerousness or flight risk. See Miranda, 34
F.4th at 362 (explaining that aliens should have “as much or
more” knowledge about “their own criminal history,” “any
mitigating evidence related to that history,” “family or
employment information,” and the alien’s entry into the
United States).
2
RODRIGUEZ DIAZ V. GARLAND 39
Second, Rodriguez Diaz objects to the need to show
changed circumstances in order to receive a second bond
hearing. He argues that his liberty interest increases over
time as he remains detained, and so at some point, he should
become entitled to a new bond hearing regardless of whether
his circumstances have changed.
The problem with this argument is that on these facts,
“duration alone” cannot “sustain a due process challenge by
a detainee who has been afforded the process contemplated
by § 1226(a) and its implementing regulations.” Borbot, 906
F.3d at 277; see also Prieto-Romero, 534 F.3d at 1063(denying habeas relief to an alien detained for three years
under § 1226(a) because the lack of a “certain end date”
alone “does not render his detention indefinite in the sense
the Supreme Court found constitutionally problematic in
Zadvydas”). The procedures that allow for aliens to seek
new bond hearings based on changed circumstances reduce,
rather than increase, the risk of erroneous deprivation. And
in all events, “[d]ue process does not, of course, require two
hearings.” Goldberg v. Kelly, 397 U.S. 254, 267 n.14
(1970). When Rodriguez Diaz was already free to raise
changed circumstances with the IJ in requesting a new bond
hearing, the duration of his detention, by itself, did not create
a due process violation.
3
Finally, Rodriguez Diaz claims that the IJ’s denial of his
requests for bond “show[] that the procedures in place did
result in an erroneous deprivation of Mr. Rodriguez Diaz’s
private liberty interest.” But this is merely a disagreement
with the merits of the IJ’s decision, which we lack
jurisdiction to review. See 8 U.S.C. § 1226(e); Martinez, 36
F.4th at 1224; see also Borbot, 906 F.3d at 279 (“Borbot’s
habeas petition seeks to compel a second bond hearing
RODRIGUEZ DIAZ V. GARLAND 40
despite alleging no constitutional defect in the one he
received. This comes close to asking this Court to directly
review the IJ’s bond decision, a task Congress has expressly
forbidden us from undertaking.”). That Rodriguez Diaz
objects to the outcome of his proceedings does not
demonstrate a procedural due process violation. See Foss,
161 F.3d at 590 (rejecting the plaintiff’s argument that
“because he was ultimately denied a permit, the procedures
are inherently inadequate”).
The dissent makes a similar mistake in reasoning that
because the IJ in complying with the district court’s incorrect
ruling allowed Rodriguez Diaz to be released on bond, “in
real life terms the risk that Rodriguez Diaz was erroneously
deprived of his liberty interest was one hundred percent.”
That assertion assumes the conclusion as to whether placing
a “clear and convincing” burden on the government was
proper in the first place. For the reasons we have explained,
it was not. That different procedures can produce different
results does not prove that the procedures governing the IJ’s
earlier denial of bond violated due process or that the IJ’s
earlier decision was in error. See Ching v. Mayorkas, 725
F.3d 1149, 1156 (9th Cir. 2013) (“It is process that the
procedural due process right protects, not the outcome.”).
4
In sum, while Rodriguez Diaz’s private interest and the
government’s interests are both substantial here, the private
interest of a detained alien under § 1226(a) is lower than that
of a detained U.S. citizen, and the governmental interests are
significantly higher in the immigration detention context.
These interests can be compared to those at stake in prior
cases in which the Supreme Court has upheld immigration
detention schemes. See Demore, 538 U.S. at 513; Carlson,
342 U.S. at 527; Flores, 507 U.S. at 303. Yet Rodriguez
RODRIGUEZ DIAZ V. GARLAND 41
Diaz has already received far more process than the
detainees in those cases. And he has not pointed to any
individualized circumstances warranting additional
procedures, or any unconstitutional failure of the § 1226(a)
procedures in his case.
Although Congress could decide to provide additional
process to persons like Rodriguez Diaz, the Due Process
Clause does not mandate procedures that reduce the risk of
erroneous deprivation to zero, a result that is beyond grasp.
As we have held, the Constitution does not “require the
government to undertake every possible effort to mitigate the
risk of erroneous deprivation and the potential harm to the
private party.” Kashem v. Barr, 941 F.3d 358, 379 (9th Cir.
2019) (quotations omitted). Instead, the Supreme Court has
told us, “[t]he role of the judiciary is limited to determining
whether the procedures meet the essential standard of
fairness under the Due Process Clause and does not extend
to imposing procedures that merely displace congressional
choices of policy.” Landon, 459 U.S. at 34–35. That is the
approach we have followed here. For the reasons given,
§ 1226(a)’s procedures satisfy due process, both facially and
as applied to Rodriguez Diaz.
In so holding, we do not foreclose all as-applied
challenges to § 1226(a)’s procedures. “Due process is a
flexible concept that varies with the particular situation.”
See Yagman, 852 F.3d at 863 (quoting Shinault v. Hawks,
782 F.3d 1053, 1057 (9th Cir. 2015)). The government
agrees that its position here does not mean detained aliens
can never bring as-applied due process challenges to
§ 1226(a). Other courts and jurists have indicated agreement
with this view. See Borbot, 906 F.3d at 280 (declining to
decide whether in other circumstances “detention under
§ 1226(a) might become unreasonably prolonged, whether
by virtue of government delay or some other cause”);
RODRIGUEZ DIAZ V. GARLAND 42
Hernandez-Lara, 10 F.4th at 57 (Lynch, J., dissenting) (“It
may be, of course, that in some circumstances detention of
[a noncitizen] would not pass constitutional muster.”)
(quoting Schall v. Martin, 467 U.S. 253, 273 (1984))
(alterations in original); cf. Demore, 538 U.S. at 532–33
(Kennedy, J. concurring) (“Were there to be an unreasonable
delay by the INS in pursuing and completing deportation
proceedings, it could become necessary then to inquire
whether the detention is not to facilitate deportation, or to
protect against risk of flight or dangerousness, but to
incarcerate for other reasons.”).
We have no occasion to consider the constitutional limits
of prolonged immigration detention because Rodriguez Diaz
has not demonstrated a due process violation in this case.
And we note that even when there are deficiencies in
individual § 1226(a) proceedings, they may be redressable
through means short of major changes to the burden of proof.
See Miranda, 34 F.4th at 361 (explaining that if particular
procedures are problematic, “they—rather than the burden
of proof—should be the subject of [a petitioner’s]
challenge”).
* * *
We reverse the judgment of the district court and remand
for dismissal of Rodriguez Diaz’s habeas petition.
REVERSED AND REMANDED.
BUMATAY, Circuit Judge, concurring:
To the extent that our court’s precedent requires us to
decide this case through the lens of Mathews v. Eldridge, 424
RODRIGUEZ DIAZ V. GARLAND 43
U.S. 319 (1976), I fully join Judge Bress’s fine opinion.
Under the Mathews balancing test, due process does not
require aliens detained under 8 U.S.C. § 1226(a) to receive
another bond hearing after a certain number of months.
But I think this case is better decided through the text,
structure, and history of the Constitution, rather than through
interest balancing. In resolving similar immigration-
detention challenges, the Supreme Court has not relied on
the Mathews framework. See, e.g., Demore v. Kim, 538 U.S.
510, 521-31 (2003); Reno v. Flores, 507 U.S. 292, 299−315
(1993). And the Court has recently backed away from multi-
factorial “grand unified theor[ies]” for resolving legal issues.
Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2427
(2022) (simplified). Maybe because the outcome of such
tests often “depends to a great extent upon how the Court
subjectively views the underlying interests at stake.”
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 562
(1985) (Rehnquist, J., dissenting).
And under the original understanding of the Due Process
Clause, Aroldo Rodriguez Diaz’s claim that he is entitled to
periodic supplemental bond hearings in which the
government bears the burden of proof by clear and
convincing evidence must fail. As a matter of text, structure,
and history, Congress may authorize the government to
detain removable aliens throughout their removal
proceedings. Nothing in the Due Process Clause requires
individualized bond determinations beyond what Congress
has established in § 1226(a)—let alone under the heightened
burden placed on the government by the district court here.
So I concur in reversing the district court’s grant of habeas
corpus.
I.
RODRIGUEZ DIAZ V. GARLAND 44
A.
Under our Constitution, “the admission and exclusion of
foreign nationals is a fundamental sovereign attribute
exercised by the Government’s political departments largely
immune from judicial control.” Trump v. Hawaii, 138 S. Ct.
2392, 2418 (2018) (simplified). Because such policies
implicate national security, foreign affairs, and political and
economic judgments, judges may not serve as “Platonic
Guardians” of our nation’s immigration policies. E. Bay
Sanctuary Covenant v. Biden, 993 F.3d 640, 687 (9th Cir.
2021) (Bumatay, J., dissenting from the denial of rehearing
en banc) (quoting L. Hand, The Bill of Rights 73 (1958)).
Instead, decisions about aliens are “of a character more
appropriate to either the Legislature or the Executive than to
the Judiciary,” Mathews v. Diaz, 426 U.S. 67, 81 (1976), and
so our duty is to largely defer to the political branches on
these questions. In other words, in the immigration context,
“Congressional powers are at their apex and judicial powers
are at their nadir.” Hernandez-Lara v. Lyons, 10 F.4th 19,
54 (1st Cir. 2021) (Lynch, J., dissenting).
That judicial deference reaches back to the start of our
Nation. Prompted by the controversial Alien Act of 1798,
our Founding generation grappled with the scope of
constitutional protections for aliens. See Gerald L. Neuman,
Strangers to the Constitution 52−63 (1996). The Act gave
the President the power to expel any alien he found
“dangerous to the peace and safety of the United States” or
“suspect[ed] [of being] concerned in any treasonable or
secret machinations against the government.” Alien Act, ch.
58, 1 Stat. 570 (1798). And that broad authority gave rise to
three general views of the Constitution’s relationship to
aliens. Neuman at 52−63.
RODRIGUEZ DIAZ V. GARLAND 45
On one end, the Federalists supported the
constitutionality of the Act because, in their view, aliens
were not members of the political community entitled to
constitutional protections. Id. at 52−56. For example,
George Keith Taylor, a Federalist member of the Virginia
House of Delegates, explained that “aliens[,] not being a
party to the [constitutional] compact, were not bound by it to
the performance of any particular duty, nor did it confer
upon them any rights.” Debate on Virginia Resolutions,
reprinted in the Virginia Report of 1799−1800 34 (1850).
And since an alien only had the privilege to stay in the
country, the Federalists argued that removal from the
country did not “deprive the alien of liberty or any other
right” and “procedural rights d[id] not attach” to removal
proceedings. Neuman at 54.
At the other end, the Jeffersonian Democratic-
Republicans viewed the Act as an erosion of the
constitutional rights of aliens. Id. at 53−54, 57−60. Relying
on constitutional provisions that broadly apply to
“person[s],” they emphasized that aliens were entitled to
constitutional protections. Id. at 57. And they thought the
Act did not provide those protections because it failed to
provide aliens “with all the accouterments of a criminal
trial.” Sessions v. Dimaya, 138 S. Ct. 1204, 1245 (2018)
(Thomas, J., dissenting). For instance, then-Representative
Edward Livingston argued:
[A]lien friends . . . residing among us, are
entitled to the protection of our laws, and that
during their residence they owe a temporary
allegiance to our Government. If they are
accused of violating this allegiance, the same
laws which interpose in the case of a citizen
must determine the truth of the accusation,
RODRIGUEZ DIAZ V. GARLAND 46
and if found guilty they are liable to the same
punishment.
8 Annals of Cong. 2012 (1798). And even if aliens were
not full “parties to the Constitution,” James Madison
expressed that “it will not be disputed, that as they owe, on
one hand, a temporary obedience, they are entitled, in return,
to their protection and advantage.” Madison’s Report on the
Virginia Resolutions, reprinted in 4 The Debates, in the
Several State Conventions on the Adoption of the Federal
Constitution 556 (Jonathan Elliot 2d ed. 1888).
From this debate arose a more moderate Federalist
position. John Marshall, in rebutting the Democratic-
Republicans’ arguments, no longer denied the constitutional
rights of aliens, but defended the Act on narrower grounds.
“Certainly a vested right is to be taken from no individual
without a solemn trial,” Marshall said, “but the right of
remaining in our country is vested in no alien; he enters and
remains by the courtesy of the sovereign power, and that
courtesy may at pleasure be withdrawn.” The Address of the
Minority in the Virginia Legislature to the People of that
State; containing a Vindication of the Constitutionality of the
Alien and Sedition Laws 9−10 (1799). So while Marshall
seemingly accepted the extension of constitutional rights to
aliens, he also noted that the removal context is a unique
enclave within the Constitution. And although “no obvious
immediate winner” emerged from the debates on the
Constitution’s relationship to aliens, the Marshall view has
remained most influential. Neuman at 60.
RODRIGUEZ DIAZ V. GARLAND 47
As Congress began legislating in the immigration
context in the late 19th century, 1 the Supreme Court largely
adopted the moderate Marshall position. In the 1880s, the
Court recognized that aliens are “persons” under the
Fourteenth Amendment, entitled to the Amendment’s due
process protections. Yick Wo v. Hopkins, 118 U.S. 356, 369
(1886). But a few years later, the Court affirmed the federal
government’s power to deport them without the protections
of the criminal process. Fong Yue Ting v. United States, 149
U.S. 698, 724−32 (1893). The Court accepted that “[aliens]
are entitled, so long as they are permitted by the government
of the United States to remain in the country, to the
safeguards of the constitution, and to the protection of the
laws.” Id. at 724. But it also said that aliens “remain subject
to the power of [C]ongress to expel them, or to order them
to be removed and deported from the country, whenever, in
its judgment, their removal is necessary or expedient for the
public interest.” Id. And the Court made the point even
clearer when it said that “[C]ongress, under the power to
exclude or expel aliens, might have directed any [alien]
found without a certificate of residence to be removed out of
the country b[y] executive officers, without judicial trial or
examination.” Id. at 728.
The moderate Federalist position thus “became part of
the American constitutional law concerning immigration,”
and “[i]t has persisted to this day, making deportation an
anomalous qualification to the general recognition of aliens’
constitutional rights within the United States territory.”
Neuman at 62. Indeed, it is now firmly established that,
1
Congress did not enact removal statutes for nearly a century
after the lapse of the Alien Act of 1798 in 1800. Rather, the
States enacted their own immigration laws until Congress
reasserted itself. See Neuman at 19−43.
RODRIGUEZ DIAZ V. GARLAND 48
when it comes to immigration, “Congress may make rules as
to aliens that would be unacceptable if applied to citizens.”
Demore, 538 U.S. at 522.
B.
Concomitant with the political branches’ broad authority
to regulate immigration matters comes the power to detain
aliens during removal proceedings. For over a century,
whenever Congress has granted the Executive authority to
detain aliens pending removal proceedings, the Supreme
Court has repeatedly upheld such detention as consistent
with the Constitution.
The Court made its first mark in this area in Wong Wing
v. United States, 163 U.S. 228 (1896). There, aliens of
Chinese descent were sentenced to one year of imprisonment
and hard labor before deportation under the 1892 extension
of the Chinese Exclusion Act. Id. at 230−38. The Court held
that the punishment, imposed against aliens without a
judicial trial, was unconstitutional under the Fifth
Amendment. Id. at 237−38. But it also went out of its way
to separate criminal punishment from temporary detention
during removal proceedings. The Court thought “it clear that
detention or temporary confinement, as part of the means
necessary to give effect to the provisions for the exclusion or
expulsion of aliens, would be valid.” Id. at 235. Otherwise,
“[p]roceedings to exclude or expel would be vain if those
accused could not be held in custody pending the inquiry into
their true character, and while arrangements were being
made for their deportation.” Id.Over a half-century later, the Court addressed the
constitutionality of detaining an alien without bond during
removal proceedings. Carlson v. Landon, 342 U.S. 524(1952). There, the Internal Security Act of 1952 permitted
RODRIGUEZ DIAZ V. GARLAND 49
the Attorney General to detain aliens charged with
membership in the Communist Party or other prohibited
classes without bail pending determination of deportability.
Id. at 528−29. Several detained aliens claimed that due
process required individualized determinations that their
detention was necessary to protect the country or to secure
their presence at deportation proceedings. Id. at 528-34.
The Court rejected the argument because “[d]etention is
necessarily a part of this deportation procedure.” Id. at 538.
Based on the 1952 Act, it held that the Attorney General
properly had the discretionary power to detain aliens without
bond during the deportation process, even without
individualized determinations of flight risk or
dangerousness. Id. Detention was justified simply “by
reference to the legislative scheme” enacted by Congress—
in that case, based on the Legislature’s decision “to eradicate
the evils of Communist activity.” Id. at 543. In other words,
when Congress granted the Executive broad discretion to
detain aliens pending removal, the Court deferred to that
decision.
Near the turn of this century, the Court rejected due
process challenges to a regulation placing unaccompanied
alien juveniles in detention or other government-approved
facilities unless they could be released into the custody of
their parents, relatives, or legal guardians. Flores, 507 U.S.
at 297, 301-15. In upholding the detention of the juvenile
aliens, the Court reaffirmed the political branches’ broad
power over aliens. As the Court said, “[i]f we harbored any
doubts as to the constitutionality of institutional custody over
unaccompanied juveniles, they would surely be eliminated
as to those juveniles . . . who are aliens.” Id. at 305. That’s
because “Congress has the authority to detain aliens
suspected of entering the country illegally pending their
deportation hearings.” Id. at 306. And Congress had
RODRIGUEZ DIAZ V. GARLAND 50
eliminated any “presumption of release pending
deportation”—instead, committing that determination to the
discretion of the Executive by statute. Id. (citing 8 U.S.C. §
1252(a)(1)). The Executive, the Court said, does not need to
“forswear use of reasonable presumptions and generic rules”
in exercising its discretion to detain aliens. Id. at 313. And
so, due process is satisfied when, “[i]n the case of each
detained alien juvenile,” the government makes
“determinations that are specific to the individual and
necessary to accurate application of the regulation,” such as
whether the alien is a deportable minor. Id. at 313−14.
And most recently, the Court denied a constitutional
attack on the mandatory detention of aliens convicted of
certain criminal offenses during removal proceedings under
8 U.S.C. § 1226(c). Demore, 538 U.S. at 521-31. Relying
on a century of precedent, the Court acknowledged that
aliens are entitled to due process, but that “detention during
deportation proceedings [is] a constitutionally valid aspect
of the deportation process.” Id. at 523. It also observed that
“Congress’ power to detain aliens in connection with
removal or exclusion . . . is part of the Legislature’s
considerable authority over immigration matters.” Id.(simplified). And so long as detention is only during
removal proceedings, it “necessarily serves the purpose of
preventing deportable criminal aliens from fleeing prior to
or during their removal proceedings, thus increasing the
chance that, if ordered removed, the aliens will be
successfully removed.” Id. at 528. Due process, the Court
said, “does not require [the government] to employ the least
burdensome means to accomplish its goal,” id., so courts
must usually defer to Congress’s view of what is necessary
to effect removals. And importantly, the Court didn’t adopt
any bright-line timelines for when that deference changes.
See id. at 530–31 (affirming the alien’s mandatory detention
RODRIGUEZ DIAZ V. GARLAND 51
even though it lasted for more than six months when the
alien himself requested continuances of his removal
hearings).
To be sure, the Court has distinguished the detention of
aliens that “did not serve its purported immigration
purpose.” Id. at 527. In Zadvydas v. Davis, 533 U.S. 678(2001), the Court dealt with aliens challenging their
detention following final orders of deportation, but for which
removal was “no longer practically attainable.” Id. at 690.
Because these aliens were unlikely to be removed, their
“detention no longer b[ore] a reasonable relation to the
purpose for which the individual was committed.” Id.(simplified). “[A] serious constitutional problem” would
then arise, the Court said, if the potentially indefinite and
permanent detention of aliens lost any relation to an
immigration purpose, such as preventing flight before
removal. Id. at 692. Indeed, the Court emphasized that
“post-removal-period detention, unlike detention pending a
determination of removability . . . has no obvious termination
point.” Id. at 697 (emphasis added).
This history provides a clear lesson. Consistent with due
process, Congress may grant the Executive the authority to
detain aliens during removal proceedings—with or without
bond hearings. And so long as the government follows
reasonable, individualized determinations to ensure that the
alien is properly in removal proceedings, due process does
not require more bond hearings even after a prolonged
period.
That’s not to say, however, that there aren’t outer limits
to this principle. If the government were to “unreasonabl[y]
delay” removal proceedings, “it could become necessary . .
. to inquire whether the detention is not to facilitate
[removal], or to protect against risk of flight or
RODRIGUEZ DIAZ V. GARLAND 52
dangerousness, but to incarcerate for other reasons.”
Demore, 538 U.S. at 532−33 (Kennedy, J., concurring).
With this understanding of immigration detention within
the constitutional framework, I turn to 8 U.S.C. § 1226(a)
and its application to this case.
C.
Given this legal backdrop, Rodriguez Diaz’s due process
rights have not been violated. Through 8 U.S.C. § 1226(a)
and its accompanying regulations, Congress and the
Executive have provided aliens like Rodriguez Diaz ample
protections to satisfy due process. Indeed, Rodriguez Diaz
received layer after layer of process:
Layer 1: When an alien is detained, Immigration &
Customs Enforcement makes an initial,
individualized custody determination. 8 C.F.R.
§ 236.1(c)(8).
• ICE may release the alien if it is
determined that the alien is neither a
danger to the community nor a flight risk.
Id.Layer 2: If ICE denies bond, the alien can seek an
individualized bond hearing before an immigration
judge at any time before a final order of removal. Id.§§ 236.1(d)(1), 1003.19(b).
• In making the bond determination,
the IJ considers nine factors that inquire
into the individual circumstances of the
alien. See In re Guerra, 24 I. & N. Dec.
37, 40 (BIA 2006).
RODRIGUEZ DIAZ V. GARLAND 53
Layer 3: If the IJ concludes that the alien should
remain detained, the alien can appeal the decision to
the BIA. 8 C.F.R. § 236.1(d)(3).
Layer 4: The alien can also request another bond
hearing based on materially changed circumstances.
Id. § 1003.19(e).
On top of all of that, aliens may seek limited habeas
review in federal district court of any “questions of law or
constitutional questions.” Martinez v. Clark, 36 F.4th 1219,
1224 (9th Cir. 2022).
With all this process, Rodriguez Diaz is not entitled to
more under the Fifth Amendment. He makes no claim that
§ 1226(a) fails to serve an immigration purpose or that his
detention was for a reason other than to facilitate his
removal. Thus, nothing about § 1226(a) on its face or as
applied to his detention offends due process. Habeas was
thus granted in error.
II.
Because both my reading of the text, structure, and
history of the Constitution and the majority opinion’s
faithful application of Mathews lead to the same result, I
concur in the opinion and judgment.
WARDLAW, Circuit Judge, dissenting:
I would affirm the district court’s decision that the Due
Process Clause entitled Rodriguez Diaz to a new bond
hearing at which the government bore the burden of proof by
a clear and convincing standard of evidence, in light of
Rodriguez Diaz’s strong, constitutionally protected liberty
RODRIGUEZ DIAZ V. GARLAND 54
interests at stake. See Foucha v. Louisiana, 504 U.S. 71, 80
(1992) (“Freedom from bodily restraint has always been at
the core of the liberty protected by the Due Process Clause
from arbitrary governmental action.” (citation omitted)).
While I agree that the test developed in Mathews v. Eldridge,
424 U.S. 319 (1976), is the appropriate legal framework to
determine whether there was a due process violation here, I
cannot agree with the majority’s balancing of the Mathews
factors. Although there is no question that the government
has a strong interest, the majority fails to account for the high
risk of procedural error and the importance of Rodriguez
Diaz’s strong individual liberty interest. I respectfully
dissent.
I.
The majority opinion omits the details of Rodriguez
Diaz’s life and childhood, stating only that he “enter[ed] this
country illegally on a date and location unknown.”
Majority Op. 1–2. Aroldo Alberto Rodriguez Diaz, a
Salvadoran national, fled El Salvador as a child. Since he
arrived in the United States as a young boy, Rodriguez Diaz
has developed strong ties here. His wife and infant son, both
of whom are United States citizens, and his entire extended
family, reside in the U.S.
As a child, Rodriguez Diaz spent most of his life
separated from his parents. After a difficult childhood,
Rodriguez Diaz struggled to adjust to life in a new country.
He was often reprimanded at school for failing at
schoolwork that was not in his native language. As a
teenager, he was reunited with his parents from whom he had
been separated for much of his childhood, but as a result, he
regularly faced beatings by his father at home. In search of
social protection in a dangerous neighborhood and
RODRIGUEZ DIAZ V. GARLAND 55
acceptance from other sources, Rodriguez Diaz became
involved with a local gang, the Carnales Locos.
At fifteen years old, Rodriguez Diaz was arrested,
transferred to the custody of Immigration and Customs
Enforcement (ICE), and placed into removal proceedings.
He was transferred again to the custody of the Office of
Refugee Resettlement, and because he was a minor, he was
released.
After his release, Rodriguez Diaz was arrested for
various incidents including possession of burglary tools,
possession of cocaine, and battery. He was then referred to
Camp Glenwood, a program for troubled juveniles, where he
completed his GED. After he was released at age eighteen,
he stopped participating in the activities of the Carnales
Locos. When he expressed his desire to leave, he was
threatened that he would face “consequences” from other
members.
In 2017, after leaving the Carnales Locos, he met
Stephanie Delmonico Rodriguez, and they married and had
a son, born on April 27, 2018. On August 3, 2018,
Rodriguez Diaz discovered that Delmonico had been
unfaithful to him when he found her in another man’s car
with his son. Shortly after the incident, he called Delmonico
on the phone. During the phone call, he called her several
names and made threats against her.
After the incident, Rodriguez Diaz was arrested and
taken into criminal custody and sentenced to nearly a year in
jail and eighteen months’ probation. On or about December
18, 2018, ICE re-arrested Rodriguez Diaz following his
release from San Mateo County Jail. He was then taken into
ICE custody pursuant to 8 U.S.C. § 1226(a), which permits
ICE to detain noncitizens pending removal. Rodriguez Diaz
RODRIGUEZ DIAZ V. GARLAND 56
was detained at Yuba County Jail for approximately two
months before he received his initial bond hearing.
At his first bond hearing on February 27, 2019, the
Immigration Judge (IJ) evaluated whether Rodriguez Diaz
presented a flight risk or danger to the community, and
denied bond based on Rodriguez Diaz’s prior criminal
history. During the hearing, in accordance with Board of
Immigration Appeals (BIA) precedent, the IJ placed the
burden on Rodriguez Diaz to show that he was not a flight
risk or danger to the community. The IJ found that
Rodriguez Diaz had not met his burden of showing that he
did not pose a danger to the community because Rodriguez
Diaz’s testimony about his gang involvement was not
credible.
While in immigration detention, following his initial
bond hearing, Rodriguez Diaz made extensive efforts at
rehabilitation: he completed courses on Anger Management,
Domestic Violence, Substance Abuse, Parenting, Offender
Responsibility, and Contentious Relationships, and he
secured a case manager through the Second Chance
Program, which provides him with services such as mental
health counseling, support enrolling in classes, and help
removing his gang-related tattoos upon release from
custody.
On May 13, 2019, the IJ denied Rodriguez Diaz’s
application for protection under the Convention Against
Torture (CAT) and ordered him removed. However, in the
decision the IJ indicated that “the facts and circumstances
surrounding [Rodriguez Diaz’s] conviction” do not justify a
“presumption that he is a danger to the community” because
his threats to his wife were “via the telephone and [he] did
not do anything further to carry out th[ese] threat[s].”
RODRIGUEZ DIAZ V. GARLAND 57
On September 16, 2019, the Superior Court of San
Mateo vacated Rodriguez Diaz’s conviction for violation of
Cal. Penal Code § 11350, which had previously rendered
him ineligible for non-lawful permanent resident
cancellation of removal and adjustment of status.
Thereafter, Rodriguez Diaz filed a motion to reopen his
removal proceedings, which was denied.
After being detained for over a year, on or about
February 4, 2020, Rodriguez Diaz requested a new bond
hearing, pursuant to 8 C.F.R. 1003.19(e), arguing that (1) his
circumstances had materially changed and (2) a hearing was
required due to the prolonged duration of his detention in
ICE custody. He provided evidence of his extensive
rehabilitation, including the vacatur of his controlled
substance conviction.
On February 24, 2020, the IJ rejected Rodriguez Diaz’s
request for a new bond hearing. In a memorandum denying
the motion on March 26, 2022, the IJ acknowledged the
evidence Rodriguez Diaz submitted regarding his
rehabilitation and vacated conviction, but found that
Rodriguez Diaz’s testimony that he had left the gang was not
credible because he had lied about his gang membership in
the past. Therefore, the IJ found that Rodriguez Diaz had
not shown materially changed circumstances justifying a
new bond hearing.
On March 11, 2020, Rodriguez Diaz appealed the denial
of a new bond hearing to the BIA, and then subsequently
filed a petition for writ of habeas corpus, based on his
lengthy detention and the IJ’s denial of bond, despite his
showing of materially changed circumstances.
On April 27, 2020, the district court granted Rodriguez
Diaz a new bond hearing, holding that due process entitled
RODRIGUEZ DIAZ V. GARLAND 58
him to a new bond hearing at which the government bore the
burden of proof by a standard of clear and convincing
evidence. In accordance with the district court’s order, on
May 13, 2020, the IJ held a bond hearing at which the
government bore the burden of proof. At the hearing, the IJ
granted Rodriguez Diaz’s request for release and ordered a
$10,000 bond. Rodriguez Diaz posted bond and was
released on May 15, 2020.
II.
The Fifth Amendment Due Process Clause guarantees
that the government will not deprive individuals of their
liberty without proper procedural safeguards. Due process
protections are particularly important when the liberty
interest at stake is freedom from imprisonment, as it is “the
most elemental of liberty interests.” Hamdi v. Rumsfeld, 542
U.S. 507, 529 (2004) (citation omitted). Indeed, the
Supreme Court has held that “liberty is the norm, and
detention prior to trial or without trial is the carefully limited
exception.” United States v. Salerno, 481 U.S. 739, 755
(1987).
The Fifth Amendment ensures that “[n]o person” “be
deprived of life, liberty, or property, without due process of
law.” U.S. Const. amend. V. (emphasis added). The
Supreme Court has affirmed that “the Fifth Amendment
entitles” all persons including “[noncitizens] to due process
of law.” Reno v. Flores, 507 U.S. 292, 306 (1993); see also
Zadvydas v. Davis, 533 U.S. 678, 690 (2001); Velasco Lopez
v. Decker, 978 F.3d 842, 850 (2d. Cir. 2020); Singh v.
Holder, 638 F.3d 1196, 1203 (9th Cir. 2011); Casas-
Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942, 950 (9th
Cir. 2008).
RODRIGUEZ DIAZ V. GARLAND 59
In the immigration context, the government is able to
detain an individual during the pendency of his removal
proceedings under 8 U.S.C. § 1226(a). But to comply with
constitutional due process requirements, the government
must provide “adequate procedural protections to ensure that
the government’s asserted justification for physical
confinement [during the pendency of the removal
proceeding] outweighs the individual’s constitutionally
protected interest in avoiding physical restraint.” Singh, 638
F.3d at 1203 (quoting Zadvydas, 533 U.S. at 690) (internal
quotation marks omitted).
The statute under which Rodriguez Diaz was detained, 8
U.S.C. § 1226(a), provides procedural protections for
detainees that are set out in 8 C.F.R. § 1003.19. Under the
federal regulation, when individuals are first detained, they
can request a “custody redetermination” in which there is a
presumption of detention, and the burden is on the detainees
to demonstrate that they do not pose a danger to the
community, a threat to national security, or a flight risk. See
In re Guerra, 24 I. & N. Dec. 37, 38 (BIA 2006). After the
initial hearing, individuals detained under § 1226(a) do not
receive another bond hearing as a matter of right; however,
they may request a new bond hearing on the basis of a
material change in circumstance. 8 C.F.R. § 1003.19(e).
The question before us is whether the procedures
afforded to Rodriguez Diaz under § 1226(a) adequately
comply with the Due Process Clause.
III.
The case law discussing detainees’ procedural rights
under 8 U.S.C. § 1226, and other related statutory provisions
governing immigration detention, is complex and lengthy.
The majority opinion provides an accurate overview of the
RODRIGUEZ DIAZ V. GARLAND 60
relevant authority addressing these issues, and correctly
states that prior precedent does not resolve Rodriguez Diaz’s
due process challenge to his detention under § 1226(a).
Majority Op. 9–20. Further, the majority recognizes that
we should be cautious in relying on past cases in this area of
law, because those cases generally resolved only the
statutory challenges to the government’s detention authority,
not the constitutional due process issue now before us. 1
Without binding precedent to rely upon, the majority
applies the traditional balancing test set forth in Mathews to
determine whether Rodriguez Diaz’s due process rights were
violated, acknowledging that other circuits have applied the
Mathews test when considering due process challenges to §
1226. See 424 U.S. at 319; Majority Op. 27. I agree with
the majority opinion that Mathews is the appropriate test to
apply in these circumstances.
However, I disagree with the majority’s balancing of and
conclusion as to the application of the Mathews factors.
While the majority is correct that there is no binding
precedent on the constitutional issue here, it disregards key
language throughout our past decisions that provides
guidance on how best to apply the Mathews factors to ensure
the procedures under § 1226(a) comport with due process.
By ignoring these guiding principles in balancing the
1
The majority cites to our recent decision in Avilez v.
Garland, 48 F.4th 915 (9th Cir. 2022), and discusses its
impact on Casas hearings for individuals detained under §
1226(c). Significantly, like our prior decisions the majority
discusses, we did not rule in Avilez on whether the petitioner
was entitled to a bond hearing as a matter of due process, and
therefore the decision in Avilez does not affect the issue now
before us.
RODRIGUEZ DIAZ V. GARLAND 61
Mathews factors, the majority inaccurately weighs the
fundamental interests at stake.
For example, our discussion regarding the Mathews
factors in Singh is informative on how to balance the
competing interests here. 2 Singh, 638 F.3d at 1208–09. In
Singh, we held that due process required that the detainee
receive a bond hearing in which the government had to show
that the “continued detention [was] justified” by a clear and
convincing evidence standard. Id. at 1200. Significantly, in
determining there was a due process violation under the
Mathews balancing test, we emphasized the “unquestionably
substantial” weight of a detained person’s liberty interest in
“freedom from prolonged detention.” Id. at 1208.
Further, in its balancing of the Mathews factors, the
majority disregards case law that guides us to view an
individual’s liberty interest in freedom from detention on a
continuum, with the amount of due process necessary to
protect that liberty interest increasing over time. The
Supreme Court has recognized that when confinement
becomes prolonged, due process requires enhanced
2
As the majority acknowledges, the Supreme Court’s
decision in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), did
not overrule our decision in Singh because “Singh was
decided on constitutional grounds,” and Jennings “left open
any constitutional questions that prolonged immigration
detention may pose.” Majority Op. 16. The majority
emphasizes that it is does not decide “whether Singh remains
good law” after Jennings; however, it also acknowledges
that Singh’s holding was based “on general principles of
procedural due process,” including “that a detained person’s
liberty interest is substantial.” Id. at 13, 18 n.4. It is these
constitutional principles, not Singh’s holding itself, which
are informative on the question before us.
RODRIGUEZ DIAZ V. GARLAND 62
protections to ensure detention remains reasonable in
relation to its purpose. For example, in Demore v. Kim, 538
U.S. 510, 529 (2003), the Supreme Court held that although
a detained person’s interest in his liberty is initially
outweighed by the government’s interest, the balance of
interests will eventually flip because a detainee’s interest in
his liberty continues to increase over time. See id. (holding
that it was constitutional for the government to detain some
noncitizens pending removal under § 1226(c) without a bond
hearing because they were detained only a month and a half
on average); see also Zadvydas, 533 U.S. at 701 (“[F]or
detention to remain reasonable,” greater justification is
needed “as the period of . . . confinement grows.”); Diouf v.
Napolitano, 634 F.3d 1081, 1091 (9th Cir. 2011) (Diouf II)
(“When the period of detention becomes prolonged . . .
greater procedural safeguards are [ ] required.”). Moreover,
in Addington v. Texas, 441 U.S. 418 (1979), the Supreme
Court recognized that, in the civil commitment context, for
a procedure to be constitutional under the Due Process
Clause, it must assign the risk of judicial error to the party
with the lesser interest. See id. at 427 (“The individual
should not be asked to share equally with society the risk of
error when the possible injury to the individual is
significantly greater than any possible harm to the state.”).
While these cases offer guidance in the balancing of the
Mathews factors, the Supreme Court has not affirmatively
weighed in on what procedural safeguards are required under
§ 1226(a). With this framework in mind, I now turn to
balancing the Mathews factors.
A.
The first Mathews factor, the private interest at stake
(here, the individual’s liberty interest in his freedom from
prolonged incarceration) is the greatest possible liberty
RODRIGUEZ DIAZ V. GARLAND 63
interest protected by the Constitution, and therefore weighs
strongly in Rodriguez Diaz’s favor. See Foucha, 504 U.S.
at 80.
While the majority acknowledges that Rodriguez Diaz’s
fourteen-month detention after his first bond hearing
qualifies his detention as “prolonged,” and therefore creates
an “unquestionably substantial” private liberty interest, the
majority fails to address how this liberty interest increases
the longer an individual is deprived of his liberty. Singh, 638
F.3d at 1208; Zadvydas, 533 U.S. at 701.
We have previously held that an individual’s liberty
interest sharply increases after he has been detained for six
months. See Diouf II, 634 F.3d at 1091–92
(“When detention crosses the six-month threshold and
release or removal is not imminent, the private interests
at stake are profound.”); Aleman Gonzalez v. Barr, 955 F.3d
762, 772 (9th Cir. 2020), rev’d on other grounds, 142 S. Ct.
2057 (2022) (re-affirming that “the conclusion that detention
always becomes prolonged at six months [is] consistent with
the reasoning of Zadvydas, Demore, Casas, and Diouf II”
(internal quotation marks omitted)).
Rodriguez Diaz had been detained for sixteen months
and had gone more than fourteen months without a bond
hearing when he filed this habeas petition. During this time,
as provided under § 1226(a), the government never had the
burden of showing that Rodriguez Diaz is a danger to the
community or a flight risk.
Further, Rodriguez Diaz’s liberty interest is particularly
weighty because, while in detention, Rodriguez Diaz was
held in Yuba County Jail, a facility that houses individuals
convicted of crimes. During his detention, he did not have
access to a cell phone or internet, was deprived of the ability
RODRIGUEZ DIAZ V. GARLAND 64
to freely interact with his family, friends, and counsel, and
was unable to work to support his wife and child. The
majority’s point that immigration proceedings are civil
proceedings, and therefore some procedures afforded to
criminal defendants do not apply to detainees, Majority Op.
30–31 n.7, emphasizes the increased importance of other
procedural protections in these circumstances, such as an
additional bond hearing, when a detainee is “incarcerated
under conditions indistinguishable from those imposed on
criminal defendants sent to prison following convictions for
violent felonies and other serious crimes.” Velasco Lopez,
978 F.3d at 850.
Significantly, Rodriguez Diaz did not receive the
procedural protections afforded to an individual in the
criminal justice system before that individual is placed in
similar conditions, including the right to counsel or a speedy
trial. As amici argue, there is a stark contrast between the
procedural protections afforded to clients in the criminal
context versus those in the civil custody of ICE—including
the burden of proof justifying such detention. See id. at 850
(holding that “the sum total of procedural protections
afforded” to a detainee who was held under § 1226(a) “was
far less” than a criminal defendant, even though the
detainee’s conditions of incarceration were nearly identical
to those of a criminal defendant (internal quotation marks
omitted)). Accordingly, this factor weighs heavily in
Rodriguez Diaz’s favor.
B.
The majority also undervalues the “risk of an erroneous
deprivation of [Rodriguez Diaz’s] interest[s] through the
procedures used, and the probable value, if any, of additional
or substitute procedural safeguards.” Mathews, 424 U.S. at
335. The second prong of the Mathews test examines the
RODRIGUEZ DIAZ V. GARLAND 65
chance that, under the current procedures, the IJ will detain
someone who does not actually pose a flight risk or danger
to the community.
Under § 1226(a), a detainee is (1) not guaranteed a bond
rehearing unless there are materially changed circumstances,
and (2) if afforded a new bond hearing, the detainee still
bears the burden of proof. 8 C.F.R. § 1003.19. In practice,
an individual detained under § 1226(a) can be detained for
the entire course of his immigration proceedings without an
additional bond hearing, which can amount to an extremely
lengthy period of time. See Hernandez-Lara v. Lyons, 10
F.4th 19, 29 (3d Cir. 2021) (“The exact length of detention
under section 1226(a) is impossible to predict and can be
quite lengthy”); Velasco Lopez, 978 F.3d at 852 (“Detention
under § 1226(a) is frequently prolonged because it continues
until all proceedings and appeals are concluded . . . . even
where an individual has prevailed and the [g]overnment
appeals.”) (“[I]t is impossible to say how long [the
detainee’s] incarceration would have lasted” under §
1226(a)). An additional bond hearing as a matter of right
once detention becomes prolonged can decrease the risk that
the prolonged detainment is in error.
Indeed, that is the scenario that played out here: Once
Rodriguez Diaz received the bond hearing with processes
our constitution requires, he was released by the IJ on bond.
Thus, in real life terms the risk that Rodriguez Diaz was
erroneously deprived of his liberty interest was one hundred
percent. 3 As amici aptly point out, “this Court does not need
3
The majority’s argument that there was no due process
violation because “different procedures can produce
different results” does not apply in these circumstances,
RODRIGUEZ DIAZ V. GARLAND 66
to speculate on whether the application of the incorrect
standard may have affected the outcome of the bond hearing.
The record here proves it.”
The majority states that “we cannot simply count
[Rodriguez Diaz’s] months of detention,” Majority Op. 30,
because, among other things, he previously received a bond
hearing. But the “potential length of detention under section
1226(a)” is highly “relevant to the weight of the liberty
interest at stake.” Hernandez-Lara, 10 F.4th at 30 n.4.
Under the majority’s premise, an individual could be
because irrespective of the standard of evidence that was
applied, Rodriguez Diaz was entitled to an additional
hearing once his detention became prolonged under the Due
Process Clause. Majority Op. 41. Rodriguez Diaz
experienced a deprivation of his liberty when he did not
receive this additional hearing, regardless of whether
“placing a ‘clear and convincing’ burden on the government
was proper.” Id. Once a hearing was provided for
Rodriguez Diaz, the clear and convincing standard of
evidence simply helped reduce “the risk of error inherent in
the truthfinding process.” Mathews, 424 U.S. at 344. Under
the majority’s approach, Rodriguez Diaz would not actually
be entitled to “different procedures” (for example, a hearing
after his detention became prolonged in which the
preponderance of the evidence standard was applied), he
would not be entitled to any procedures. The majority’s
claim that Rodriguez Diaz should have remained detained,
even though when he was granted this hearing an
immigration court found he should be released on bond,
shows that the majority’s definition of due process offers no
real procedural protections here.
RODRIGUEZ DIAZ V. GARLAND 67
detained for years without any further guarantee of process.
This is not what our Constitution affords. 4
Even if a detainee were to be afforded a hearing as a
matter of right after his detention became prolonged, the risk
of erroneous deprivation is high if he must still carry the
burden of proof. Placing the burden of proof on the detainee
rather than the government can lead to a less complete
factual record, because the person with the burden of proof
is the one responsible for creating the record. The more
complete a factual record, the more information the IJ has to
base a conclusion on, and therefore the more likely it is that
the IJ will make the correct decision.
As amici explain, detainees are in a much worse position
to compile a complete and accurate factual record than the
government is. For instance, detainees have limited access
to phones, computers, and mail, making it harder for them to
gather relevant documents including their official records,
proof of community ties, and employment verification.
Detainees often face cultural and language barriers, making
it even more difficult to access relevant information.
Further, detainees often do not have access to legal help in
building their case. And because detainees do not have a
4
And the majority’s statement that Rodriguez Diaz “was not
without process,” Majority Op. 29, further disregards “the
risk of error inherent in the current burden allocation” during
an initial bond hearing. Hernandez-Lara, 10 F.4th at 32. An
initial hearing “does little to change the risk of error,” when
in that hearing “the burden is always on the noncitizen.” Id.
RODRIGUEZ DIAZ V. GARLAND 68
constitutional right to counsel, many indigent noncitizens
enjoy no such privilege. 5
While noncitizens lack access to legal, financial, and
community resources key to obtaining evidence to fight for
their freedom, the government has immediate access to
detainees’ immigration or criminal records, as well as the
resources and time to compile such information. See
Velasco Lopez, 978 F.3d at 853.
The risk of legal error becomes weightier with each
passing day of detention, requiring more procedural
protections. Id. (“[A]s the period of . . . confinement grows,
so do the required procedural protections.” (internal
quotation marks omitted)). The current procedures under
§ 1226(a) create a high risk of judicial error and assign such
risk to the individual detainee. Rodriguez Diaz’s prior bond
hearing does not diminish the serious deprivation of liberty
he experienced or adequately address the insufficient
procedural protections afforded to him under § 1226(a).
Because an individual’s liberty interest increases over time,
this liberty interest, combined with the risk of legal error,
continues to raise due process violations, which increase in
severity the longer the individual is detained. As such, the
5
Even in cases such as Rodriguez Diaz’s, where the detainee
is able to obtain legal counsel, the detainee still faces many
significant challenges in preparing his legal case, including
“the inadequate number of attorney-visitation rooms, lack of
contact visits, unavailability of interpreters, lack of access to
video-teleconferencing (VTC) and telephones, lack of
confidentiality, prohibition on electronic devices, and
arbitrary changes in rules regarding attorney visitation” at
detention centers.
RODRIGUEZ DIAZ V. GARLAND 69
second Mathews factor weighs strongly in Rodriguez Diaz’s
favor.
C.
I agree with the majority that, under the third Mathews
factor, there is a strong governmental interest at stake here,
including ensuring noncitizens do not abscond or commit
crimes while their removal proceedings are pending.
However, our precedent does not suggest that the
government’s broad interest in controlling immigration
supersedes an individual’s interest in freedom from
detention. Even considering the heavy weight that must be
placed on the government’s interest in the immigration
context, see Landon v. Plasencia, 459 U.S. 21, 34 (1982),
the liberty interest here is so great that it outweighs the
government’s interest once detention becomes prolonged.
Significantly, unlike the individual’s interest in liberty,
the strength of the government’s interest remains constant
over the course of an individual’s detention. See Velasco
Lopez, 978 F.3d at 855 (“[T]he longer detention continues,
the greater the need for the [g]overnment to justify its
continuation.”). I disagree with the majority’s reasoning that
the government’s interest increases over time because “the
risk of a detainee absconding inevitably escalates as the time
for removal becomes more imminent.” Majority Op. 32.
The case the majority cites to for this proposition, Johnson
v. Guzman Chavez, 141 S. Ct. 2271 (2021), focuses on
noncitizens detained under § 1231, a statute which applies
when a noncitizen has already been ordered removed. See
id. at 2290. Johnson in fact explains that noncitizens who
have not been ordered removed, such as those detained under
§ 1226, “are less likely to abscond because they have a
chance of being found admissible.” Id. Rather, the
government’s interests in protecting the public and enforcing
RODRIGUEZ DIAZ V. GARLAND 70
our immigration laws remain consistent throughout a
detainee’s removal proceedings.
Moreover, the majority’s analysis of the government’s
interest is flawed throughout by its presumption that the
passing time would inevitably lead to Rodriguez Diaz’s
removal. The majority presumes Rodriguez Diaz will lose
his appeal to the BIA and his petition for review to us. This
is not a presumption in which we, as judges, should indulge.
In our analysis of the government’s interest, we must
also consider public interest issues such as “the
administrative burden and other societal costs that would be
associated with the additional process.” Velasco Lopez, 978
F.3d at 855 (internal quotation marks omitted). This
consideration favors Rodriguez Diaz because “[w]hen the
[g]overnment incarcerates individuals it cannot show to be a
poor bail risk for prolonged periods of time . . . it separates
families and removes from the community breadwinners,
caregivers, parents, siblings and employees.” Id. Indeed,
“limiting the use of detention to only those noncitizens who
are dangerous or a flight risk may save the government, and
therefore the public, from expending substantial resources
on needless detention.” Hernandez-Lara, 10 F.4th at 33.
Rodriguez Diaz’s case exemplifies this point: The IJ
determined that Rodriguez Diaz was not a danger nor a flight
risk when he was afforded a hearing with the constitutionally
required procedural protections. Therefore, because his
“unnecessary detention impose[d] substantial societal
costs,” the government’s interest here supports affording
Rodriguez Diaz an additional bond hearing. Id.
Lastly, as the district court indicated, the government’s
interest here “is the ability to detain [p]etitioner without
providing him with another bond hearing, not whether the
government may continue to detain him, and it is not
RODRIGUEZ DIAZ V. GARLAND 71
contested that the cost of conducting a bond hearing, to
determine whether the continued detention of [p]etitioner is
justified, is minimal.” Accordingly, the government’s
interest here is outweighed by Rodriguez Diaz’s
fundamental liberty interest.
IV.
In balancing the Mathews factors, I agree with the
majority that at the start of a noncitizen’s detainment, the
government’s interest initially outweighs the individual’s
interest. However, at a certain point, the individual’s liberty
interest begins to overshadow the government’s interest,
which remains constant. See Velasco Lopez, 978 F.3d at
855.
As the majority acknowledges, its decision is not
mandated by precedent. The proper balancing of the
Mathews factors under § 1226(a) is unsettled in our Circuit.
Other circuits have weighed the competing interests and
have come to different outcomes regarding the
constitutionality of § 1226(a)’s procedures. See id. at 855–
56; Hernandez-Lara, 10 F.4th at 41 (holding that “due
process requires the government to either (1) prove by clear
and convincing evidence that [the noncitizen] poses a danger
to the community or (2) prove by a preponderance of the
evidence that [the noncitizen] poses a flight risk”); Borbot v.
Warden Hudson Cty. Corr. Facility, 906 F.3d 274, 280 (3d
Cir. 2018) (recognizing that “despite an initial bond hearing,
detention under § 1226(a) might become unreasonably
prolonged,” but concluding that the petitioner “fail[ed] to
identify a basis in the record to demonstrate that this is such
a case”); Miranda v. Garland, 34 F.4th 338, 366 (4th Cir.
2022) (a divided panel that agreed “with the Third Circuit’s
view of the burden of proof procedures in § 1226(a)” while
“regoniz[ing] that [its] decision conflicts with decisions
RODRIGUEZ DIAZ V. GARLAND 72
from two of [its] sister circuits,” over a dissent by Judge
Urbanski). 6
The majority chose to follow the Third Circuit’s
approach, which held that the government’s interest
prevailed. See Borbot, 906 F.3d at 280. 7 However, in
Velasco Lopez, the Second Circuit explained that the
government must bear the burden of proof in § 1226(a) bond
proceedings after detention becomes prolonged, because at
that point, the individual’s interest becomes greater than the
government’s interest, and therefore the risk of error should
be placed on the party with the less weighty interest. See
978 F.3d at 855–56.
The Second Circuit more accurately weighs the
important interests at stake than does the majority opinion.
“While the [g]overnment’s interest may have initially
outweighed short-term deprivation of [Rodriguez Diaz’s]
6
“[D]isagree[ing] with the majority’s conclusion that
placing the burden of proof on the noncitizen at § 1226(a)
bond hearings meets the requirements of Mathews v.
Eldridge,” Judge Urbanksi emphasized that, along with a
handful of its sister circuit courts, “a growing chorus of”
district courts “have held that due process requires the
government to bear the burden of proving danger or flight
risk at a § 1226(a) immigration bond hearing.” Id. at 375–
78 (Urbanksi, J., dissenting in part) (listing cases).
7
It is worth noting that in a subsequent decision, the Third
Circuit held that under § 1226(c), “the [g]overnment must
justify [a detainee’s] continued detention by clear and
convincing evidence” once his detention becomes
unreasonably prolonged to satisfy due process. German
Santos v. Warden Pike Cty. Corr. Facility, 965 F.3d 203, 206
(3d Cir. 2020).
RODRIGUEZ DIAZ V. GARLAND 73
liberty interests . . . [his] prolonged incarceration, which had
continued for [sixteen] months without an end in sight or a
determination that he [continued to be] a danger or flight
risk, violated due process.” Id. at 854–55.
As the Second Circuit held, and the Supreme Court’s
precedent suggests, after an individual’s detention becomes
prolonged—often found to be at the six-month mark—the
government is required to provide him with a bond hearing
at which the government has the burden of proof under a
clear and convincing standard of evidence. See Diouf II, 634
F.3d at 1092 n.13 (“[D]etention is prolonged when it has
lasted six months . . .”). Although the majority
acknowledges that we have held that detention becomes
prolonged after exceeding the six-month mark, it fails to
grapple with how our past decisions weigh into the liberty
calculus when evaluating the Mathews factors.
Accordingly, in balancing the Mathews factors, the due
process concepts embedded in the Supreme Court’s and our
precedent suggest that once an individual has been detained
for six months, the government must provide a new bond
hearing at which the government proves its interest in
detention by clear and convincing evidence to meet the due
process protections set out in the Constitution. See, e.g.,
Addington, 441 U.S. at 427; Demore, 538 U.S. at 529; Singh,
638 F.3d at 1203–04. Because Rodriguez Diaz had been
detained for fourteen months since his first bond hearing, he
was constitutionally entitled to another bond hearing in
RODRIGUEZ DIAZ V. GARLAND 74
which the government bore the burden of proof by a clear
and convincing evidence standard. 8
V.
“The Fifth Amendment says that ‘[n]o person shall be
. . . deprived of life, liberty, or property without due process
of law.’ An alien is a ‘person.’ To hold him without bail is
to deprive him of bodily ‘liberty.’” Jennings, 138 S. Ct. at
861 (Breyer, J., dissenting) (citations omitted). Our
precedent instructs that these Fifth Amendment procedural
protections should be evaluated with even more scrutiny the
longer an individual’s liberty is deprived by the government.
After six months, Rodriguez Diaz’s liberty interest
8
And the majority need not have concluded that six months
is the amount of time in which detention becomes prolonged
in order to have found Rodriguez Diaz’s detention
unconstitutional. Instead, it could have found that “[o]n any
calculus, [Rodriguez Diaz’s sixteen]-month incarceration
without a determination that his continued incarceration was
justified violated due process.” Velasco Lopez, 978 F.3d at
855 n.13 (declining “to establish a bright-line rule for when
due process entitles an individual detained under § 1226(a)
to a new bond hearing with a shifted burden” but
acknowledging that “[t]he Supreme Court has held that
noncitizens who have been ordered removed for having
committed serious criminal offenses or having a long
criminal history cannot be detained indefinitely, and a
presumptively constitutional period of detention does not
exceed six months”); see also Hernandez-Lara, 10 F.4th at
25 n.2, 41 (declining to decide when detention becomes
sufficiently prolonged, but similarly finding that there had
been a due process violation after the detainee had been held
for ten months without an additional bond hearing in which
the government bore the burden of proof).
RODRIGUEZ DIAZ V. GARLAND 75
outweighed the government’s interest, and the procedures
afforded to him under § 1226(a) deprived him of his bodily
liberty in violation of the Due Process Clause.
For the foregoing reasons, I respectfully dissent.