Lexis Hernandez Avilez v. Merrick Garland ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEXIS HERNANDEZ AVILEZ, No. 20-16142
Petitioner-Appellee,
D.C. No.
v. 3:19-cv-08296-
CRB
MERRICK B. GARLAND, Attorney
General; ALEJANDRO N.
MAYORKAS, in his official capacity; ORDER AND
TAE D. JOHNSON, in his official AMENDED
capacity; DAVID W. JENNINGS, OPINION
Respondents-Appellants,
and
WENDELL ANDERSON, in his
official capacity,
Respondent.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted October 22, 2021
San Francisco, California
Filed September 8, 2022
Amended June 6, 2023
2 HERNANDEZ AVILEZ V. GARLAND
Before: Mary H. Murguia, Chief Judge, and Marsha S.
Berzon and Carlos T. Bea, Circuit Judges.
Order;
Opinion by Chief Judge Murguia;
Concurrence by Judge Berzon;
Concurrence by Judge Bea
SUMMARY*
Habeas/Immigration
The panel filed: (1) an order amending the opinion filed
on September 8, 2022, and published at 48 F.4th 915 (9th
Cir. 2022), denying on behalf of the court a petition for
rehearing en banc, and indicating that no further petitions for
rehearing en banc would be entertained; and (2) an amended
opinion vacating the district court’s grant of habeas relief
and remanding in a case in which Lexis Hernandez Avilez
challenged her immigration detention.
In the amended opinion, the panel held that a noncitizen
of the United States—who initially was subject to mandatory
detention under 8 U.S.C. § 1226(c)—is not entitled to a bond
hearing under 8 U.S.C. § 1226(a) while awaiting a decision
from this court on a petition for review.
Hernandez Avilez petitioned for habeas relief after being
in immigration detention for over a year without a bond
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
HERNANDEZ AVILEZ V. GARLAND 3
hearing. During her initial removal proceedings, she was
subject to mandatory detention under 8 U.S.C. § 1226(c)
(“Subsection C”) due to a conviction. Thus, she was not
statutorily entitled to a bond hearing. However, in Casas-
Castrillon v. Department of Homeland Security, 535 F.3d
942 (9th Cir. 2008), this court held that once a noncitizen’s
immigration case reaches judicial review, the authority for
holding a Subsection C detainee shifts to 8 U.S.C. § 1226(a)
(“Subsection A”), which does entitle a noncitizen to a bond
hearing. Accordingly, Hernandez Avilez argued she was
entitled to a bond hearing because she had filed a petition for
review. The Government conceded that Hernandez Avilez
would be entitled to a bond hearing under Casas-Castrillon,
but argued that Casas-Castrillon is clearly irreconcilable
with Jennings v. Rodriguez, 138 S. Ct. 830 (2018). The
district court rejected that contention and ordered the
Government to provide Hernandez Avilez a bond hearing.
Under Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003)
(en banc), a three-judge panel may depart from circuit
precedent only if the precedent is clearly irreconcilable with
the reasoning or theory of intervening higher
authority. Here, the panel observed that the Supreme
Court’s decision in Jennings does not directly address the
question in Casas-Castrillon—when, if ever, mandatory
detention under Subsection C ends. However, the panel
explained that Jennings’s reasoning makes clear that
Subsection A and Subsection C apply to discrete categories
of noncitizens, and not to different stages of a noncitizen’s
legal proceedings. Thus, if a noncitizen is initially detained
under Subsection C, the authority to detain her cannot switch
to Subsection A based on the stage of her case. Accordingly,
the panel concluded that Jennings’s reasoning is “clearly
irreconcilable” with Casas-Castrillon’s detention-shifting
4 HERNANDEZ AVILEZ V. GARLAND
framework and held that Jennings abrogated this portion of
Casas-Castrillon.
Next, the panel explained that Subsection A provides the
Government with authority to detain noncitizens “pending a
decision on whether the alien is to be removed from the
United States,” and that Jennings provides that Subsection C
authorizes detention during the same period as Subsection
A, but does not define that period. The panel looked to
Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008),
which was decided by the same panel on the same day as
Casas-Castrillon, and held that detention authority under
Subsection A continues through judicial review. Explaining
that it is clear after Jennings that the time period defined by
Subsection A applies to Subsection C as well, the panel held
that the authority under Subsection C likewise continues
through judicial review.
The panel recognized that there are reasons to doubt
whether Subsection C extends to the judicial phase of
removal proceedings. First, the panel observed that in
Demore v. Kim, 538 U.S. 510 (2003), the Supreme Court
plainly assumed that detention under Subsection C applies
solely to the administrative phase of removal proceedings.
Second, the panel explained that Jennings referred to
Demore’s understanding of the scope of Subsection C, and
Demore assumed that authority under Subsection C ended
with the administrative phase. Noting that Prieto-Romero is
in some tension with Demore, the panel explained that
neither Demore nor Jennings squarely addressed the
question and, accordingly, Prieto-Romero remains good law
on this point.
The panel observed that the issue presented to this court
on appeal by the Government as appellant was limited to
HERNANDEZ AVILEZ V. GARLAND 5
whether Subsection A or Subsection C of Section 1226
applied during the relevant time period. Because neither
party raised any argument that 8 U.S.C. § 1231(a) applied—
whether because the stay in this case was a temporary stay,
or for any other reason—the panel did not consider that
possibility.
Finally, the district court declined to reach Hernandez
Avilez’s alternative argument that she was entitled to habeas
relief as a matter of due process. The panel remanded to the
district court to consider this question in the first instance.
Concurring, Judge Berzon wrote separately to express
her disquiet with the partial abrogation Miller v. Gammie
compelled in this case, and to urge her colleagues to consider
rehearing this case en banc. According to Judge Berzon, the
result of the holding in this case was to save fragments of
two opinions that were cohesively crafted—Prieto-Romero
and Casas-Castrillon—to fashion an entirely new
interpretation of the statutory scheme that technically holds
together, but diverges dramatically from this Court’s
original interpretation. Judge Berzon wrote that sitting en
banc, the court could consider whether the shared endpoint
for Subsection A and Subsection C is the end of
administrative proceedings, not the end of judicial review.
Concurring, Judge Bea wrote that he concurred in the
principal opinion, with two exceptions. First, Judge Bea
wrote that there is not any meaningful “tension” between the
holdings of Demore, Jennings, and Prieto-Romero with
respect to the meaning of “pending a decision on whether the
alien is to be removed from the United States,” 8 U.S.C.
§ 1226(a). Judge Bea wrote that Demore did not “plainly
assume” that detention authority under § 1226(c) extended
only to the administrative phase of removal proceedings, and
6 HERNANDEZ AVILEZ V. GARLAND
Jennings did not further endorse this (alleged) understanding
of § 1226(c). Second, Judge Bea rejected the principal
opinion’s use of the non-statutory word “noncitizen” to
characterize Petitioner rather than the statutory term “alien.”
COUNSEL
Sarah S. Wilson (argued), Senior Litigation Counsel;
Ernesto Molina, Deputy Director, Office of Immigration
Litigation; Brian Boynton, Acting Assistant Attorney
General, Civil Division; United States Department of
Justice; Washington, D.C.; for Respondents-Appellants.
Judah Lakin (argued) and Amalia Wille, Lakin & Wille LLP,
Oakland, California; Hector A. Vega and Genna Ellis Beier,
San Francisco Public Defender’s Office, San Francisco,
California; for Petitioner-Appellee.
ORDER
The Opinion filed September 8, 2022, and published at
48 F.4th 915 (9th Cir. 2022), is hereby amended. An
amended opinion is filed herewith.
The full court has been advised of the suggestion for
rehearing en banc, and no judge has requested a vote. Fed.
R. App. P. 35. The petition for rehearing en banc is
DENIED (Doc. 55). No further petitions for rehearing or
rehearing en banc will be entertained.
HERNANDEZ AVILEZ V. GARLAND 7
OPINION
MURGUIA, Chief Circuit Judge:
Lexis Hernandez Avilez, a Mexican citizen, petitioned
for habeas relief after being held in immigration detention
for over a year without a bond hearing. A district court judge
granted Hernandez Avilez’s petition for relief and ordered
the Government to provide her with a bond hearing on
statutory grounds, relying on Casas-Castrillon v.
Department of Homeland Security, 535 F.3d 942 (9th Cir.
2008). The Government appealed on the ground that Casas-
Castrillon is no longer good law. For the following reasons,
we vacate the district court’s grant of habeas relief and
remand for consideration of Hernandez Avilez’s remaining
constitutional argument.
I.
Lexis Hernandez Avilez has lived in the United States
since infancy and became a lawful permanent resident in
2000. In 2006, Hernandez Avilez was convicted of assault
with a firearm in violation of California Penal Code
§ 245(a)(2). She was sentenced to sixteen years in prison,
including a ten-year enhancement for gang participation.
California authorities notified Immigration and Customs
Enforcement (“ICE”) of Hernandez Avilez’s pending parole
in late 2018.
Upon release from state prison in November 2018,
Hernandez Avilez was immediately taken into ICE custody,
served with a Notice to Appear, and placed in removal
proceedings based on her felony assault conviction pursuant
to Immigration & Nationality Act § 237(a)(2)(A)(iii),
codified at 8 U.S.C. § 1227(a)(2)(A)(iii). The parties agree
8 HERNANDEZ AVILEZ V. GARLAND
that during Hernandez Avilez’s initial removal proceedings,
she initially was subject to mandatory immigration detention
under 8 U.S.C. § 1226(c) (“Subsection C”) because of her
prior conviction. Under Subsection C, detention is
mandatory, and a noncitizen of the United States
(“noncitizen”) therefore is not statutorily entitled to a bond
hearing.1
During removal proceedings, Hernandez Avilez
conceded removability based on her criminal conviction.
She sought relief, however, under the Convention Against
1
This opinion uses the term noncitizen unless quoting language from the
immigration statutes or past opinions containing the term alien. There
are two reasons behind this choice. First, use of the term noncitizen has
become a common practice of the Supreme Court, see Patel v. Garland,
142 S. Ct. 1614, 1618 (2022) (Barrett, J.); United States v. Palomar-
Santiago, 141 S. Ct. 1615, 1619 (2021) (Sotomayor, J.); Barton v. Barr,
140 S. Ct. 1442, 1446 n.2 (2020) (Kavanaugh, J.) (“This opinion uses
the term ‘noncitizen’ as equivalent to the statutory term ‘alien.’” (citing
8 U.S.C. § 1101(a)(3)), whose lead on matters of style we ordinarily
follow, and of the Board of Immigration Appeals, e.g., Matter of Dang,
28 I. & N. Dec. 541, 543 (BIA 2022), whose decisions we
review. Second, even if that were not the case, “[c]areful writers avoid
language that reasonable readers might find offensive or distracting—
unless the biased language is central to the meaning of the writing.”
Chicago Manual of Style Online 5.253, https://www.chicagomanualofst
yle.org/book/ed17/part2/ch05/psec253.html. The word alien can
suggest “strange,” “different,” “repugnant,” “hostile,” and “opposed,”
Alien, Webster’s Third New International Dictionary 53 (2002), while
the word noncitizen, which is synonymous, see Alien and Noncitizen,
American Heritage Dictionary of English Language 44, 1198 (5th ed.
2011), avoids such connotations. Thus, noncitizen seems the better
choice. Respectfully, we do not see how this choice “comes at a real cost
to litigants.” Judge Bea Concurrence at 44. Litigants may use either
word, and we do not think our choice here will cause judges to “respond
negatively” to litigants who use the term alien. See Judge Bea
Concurrence at 44.
HERNANDEZ AVILEZ V. GARLAND 9
Torture (“CAT”), which allows a noncitizen to remain in the
United States if she can show that she is more likely than not
to be tortured if returned to her home country. In March
2019, an immigration judge (“IJ”) denied CAT relief and
ordered Hernandez Avilez removed to Mexico. In August
2019, after Hernandez Avilez’s timely appeal of the IJ’s
denial of CAT relief, the Board of Immigration Appeals
(“BIA”) dismissed Hernandez Avilez’s appeal. Hernandez
Avilez then petitioned this court for review of the BIA’s
decision and sought a stay of removal.2 See Hernandez
Avilez v. Garland, No. 19-72040, Dkt. No. 8 (9th Cir. Aug.
26, 2019). Several months later, in November 2019,
Hernandez Avilez filed a motion to reopen her immigration
proceedings before the BIA, based on new evidence of her
gender transition and the risks she would face as a
transgender woman in Mexico.3
2
“Upon the filing of an initial motion or request for stay of removal or
deportation, the order of removal or deportation is temporarily stayed
until further order of the Court.” Ninth Circuit General Order 6.4(c)(1).
3
We have discretion to take judicial notice of documents “not subject to
reasonable dispute.” Fed. R. Evid. 201(b). And we “may take notice of
proceedings in other courts, both within and without the federal judicial
system, if those proceedings have a direct relation to matters at issue.”
Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011) (quoting United
States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971
F.2d 244, 248 (9th Cir. 1992)). Accordingly, we grant Hernandez
Avilez’s motion to take judicial notice of documents clarifying the status
of her immigration case and related Ninth Circuit petition for review.
In August 2021, the BIA granted Hernandez Avilez’s motion to reopen.
As a result, Hernandez Avilez filed a motion to voluntarily dismiss her
petition for review, and on September 22, 2021, we granted her motion.
Her reopened removal proceedings remain pending before the
immigration court.
10 HERNANDEZ AVILEZ V. GARLAND
In December 2019, after spending more than a year in
immigration detention, Hernandez Avilez filed a petition for
habeas corpus under 28 U.S.C. § 2241 in the U.S. District
Court for the Northern District of California. In her habeas
petition, Hernandez Avilez argued that under Casas-
Castrillon, she no longer was subject to mandatory detention
under Subsection C because her removal order was judicially
stayed pending a decision on her petition for review of the
agency’s denial of CAT relief. Casas-Castrillon held that
once a noncitizen’s immigration case reaches judicial
review, that noncitizen is detained under 8 U.S.C. § 1226(a)
(“Subsection A”)—the general, discretionary administrative
detention provision for noncitizens in removal
proceedings—not Subsection C, which applies to
noncitizens in removal proceedings who have been
convicted of certain criminal offenses. Hernandez Avilez
further maintained that because Subsection A requires that
noncitizens receive a bond hearing, she now was entitled to
a bond hearing. Finally, Hernandez Avilez also argued that
her prolonged detention violated due process.4
The Government conceded that under Casas-Castrillon,
Hernandez Avilez would have been entitled to a bond
hearing under Subsection A while her petition for review
was pending in this court. The Government argued,
however, that Casas-Castrillon was inapplicable because it
was “clearly irreconcilable” with intervening Supreme Court
authority—specifically, Jennings. In the Government’s
view, under Jennings, a noncitizen who has been convicted
4
Hernandez Avilez, who is transgender, also argued that her detention
violated substantive due process because ICE refused to provide her with
gender-affirming care. The district court dismissed this claim after
Hernandez Avilez began receiving such care. Hernandez Avilez’s
substantive due process claim is not at issue on appeal.
HERNANDEZ AVILEZ V. GARLAND 11
of a qualifying crime and who initially is detained under
Subsection C, remains detained under Subsection C
throughout agency removal proceedings and any subsequent
judicial review. This argument is contrary to Casas-
Castrillon’s holding that a Subsection C detainee’s detention
shifts to Subsection A after the administrative phase of
removal proceedings end and the judicial phase begins. The
Government argues that as a result of Jennings, Hernandez
Avilez remained detained under Subsection C and so, was
never statutorily entitled to a bond hearing.
The district court concluded that Casas-Castrillon
remained good law; that, because Hernandez Avilez had
filed a petition for review, her detention fell under
Subsection A; that she thus no longer was subject to
mandatory detention; and that the Government therefore was
required to provide her a bond hearing. An IJ subsequently
held a hearing and granted Hernandez Avilez bond in the
amount of $10,000.5 Hernandez Avilez posted bond and is
no longer in custody. The Government timely appealed the
district court’s order, again arguing that Casas-Castrillon is
“clearly irreconcilable” with Jennings and that Hernandez
Avilez therefore was not entitled to a bond hearing.
The question before us on appeal is whether the Supreme
Court’s decision in Jennings abrogated our circuit’s
precedent in Casas-Castrillon, thereby precluding
noncitizens like Hernandez Avilez—who initially were
detained under Subsection C based on a prior, qualifying
criminal conviction—from receiving a bond hearing under
Subsection A while awaiting a decision from this court on a
petition for review.
5
By the time of the bond hearing, Hernandez Avilez had been detained
for seventeen months.
12 HERNANDEZ AVILEZ V. GARLAND
II.
We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and
2253(a). We review de novo a district court’s order granting
a petition for a writ of habeas corpus under 28 U.S.C. § 2241.
Diouf v. Mukasey, 542 F.3d 1222, 1228 (9th Cir. 2008).
A.
Noncitizens in the United States are removable if they
fall within any of several statutory classes of removable
individuals, one of which is noncitizens convicted of certain
enumerated criminal offenses. See 8 U.S.C. § 1227(a). Four
statutes grant the Government6 authority to detain
noncitizens who have been placed in removal proceedings:
8 U.S.C. §§ 1225(b) (“Section 1225(b)”), 1226(a)
(“Subsection A”), 1226(c) (“Subsection C”), and 1231(a)
(“Section 1231(a)”).7 A noncitizen’s place “within this
statutory scheme can affect whether his detention is
mandatory or discretionary, as well as the kind of review
process available to him if he wishes to contest the necessity
of his detention.” Prieto-Romero v. Clark, 534 F.3d 1053,
6
Although these statutes refer to the Attorney General’s authority to
detain noncitizens in immigration proceedings, the statutes predate the
creation of the Department of Homeland Security. This authority now
resides with the Secretary of Homeland Security. See 6 U.S.C. § 251(2).
7
Section 1225(b) grants the Government authority to detain noncitizens
who arrive or are present in the United States but who “ha[ve] not been
admitted.” 8 U.S.C. § 1225(b); see also Jennings, 138 S. Ct. at 836–37
(describing the subsection’s scope). Although Section 1225(b) is an
important part of Congress’s detention scheme, this opinion concerns
only “admitted” noncitizens. Accordingly, any reference to noncitizens
in this opinion refers only to individuals who have been “admitted” to
the United States—and the detention statutes which authorize their
detention—not applicants for admission.
HERNANDEZ AVILEZ V. GARLAND 13
1057 (9th Cir. 2008). Only Subsection A and Subsection C
are directly at issue in this case.
Subsection A is the default detention statute for
noncitizens in removal proceedings and applies to
noncitizens “[e]xcept as provided in [Subsection C].” 8
U.S.C. § 1226(a).8 Subsection A states that “[o]n a warrant
8
Section 1226(a) and (b) state:
(a) Arrest, detention, and release
On a warrant issued by the Attorney General, an
alien may be arrested and detained pending a
decision on whether the alien is to be removed
from the United States. Except as provided in
subsection (c) and pending such decision, the
Attorney General—
(1) may continue to detain the arrested alien; and
(2) may release the alien on—
(A) bond of at least $1,500 with security
approved by, and containing conditions
prescribed by, the Attorney General; or
(B) conditional parole; but
(3) may not provide the alien with work
authorization (including an “employment
authorized” endorsement or other appropriate
work permit), unless the alien is lawfully
admitted for permanent residence or
otherwise would (without regard to removal
proceedings) be provided such authorization.
(b) Revocation of bond or parole
The Attorney General at any time may revoke a
bond or parole authorized under subsection (a),
14 HERNANDEZ AVILEZ V. GARLAND
issued by the Attorney General, an alien may be arrested and
detained pending a decision on whether the alien is to be
removed from the United States.” Id. (emphasis added).
The statute also provides for release on bond or conditional
parole. Id. at § 1226(a)(2). Because of Subsection A’s
permissive language—specifically, the word “may”—
detention under Subsection A is discretionary. See Prieto-
Romero, 534 F.3d at 1059.
Subsection C provides for the detention of “criminal
aliens” and states that “[t]he Attorney General shall take into
custody any alien who” is deportable or inadmissible based
on a qualifying, enumerated offense. 8 U.S.C. § 1226(c)
(emphasis added).9 Release under Subsection C is limited to
rearrest the alien under the original warrant, and
detain the alien.
8 U.S.C. § 1226(a)–(b).
9
Section 1226(c) states:
(c) Detention of criminal aliens
(1) Custody
The Attorney General shall take into custody
any alien who—
(A) is inadmissible by reason of having
committed any offense covered in
section 1182(a)(2) of this title,
(B) is deportable by reason of having
committed any offense covered in
section 1227(a)(2)(A)(ii), (A)(iii), (B),
(C), or (D) of this title,
(C) is deportable under section
1227(a)(2)(A)(i) of this title on the basis
HERNANDEZ AVILEZ V. GARLAND 15
certain witness protection purposes. See id. at § 1226(c)(2).
Because of its use of the word “shall,” detention under
Subsection C is mandatory. See Jennings, 138 S. Ct. at 847.
of an offense for which the alien has
been sentenced to a term of
imprisonment of at least 1 year, or
(D) is inadmissible under section
1182(a)(3)(B) of this title or deportable
under section 1227(a)(4)(B) of this title,
when the alien is released, without regard to
whether the alien is released on parole,
supervised release, or probation, and without
regard to whether the alien may be arrested or
imprisoned again for the same offense.
(2) Release
The Attorney General may release an alien
described in paragraph (1) only if the
Attorney General decides pursuant to section
3521 of Title 18 that release of the alien from
custody is necessary to provide protection to
a witness, a potential witness, a person
cooperating with an investigation into major
criminal activity, or an immediate family
member or close associate of a witness,
potential witness, or person cooperating with
such an investigation, and the alien satisfies
the Attorney General that the alien will not
pose a danger to the safety of other persons
or of property and is likely to appear for any
scheduled proceeding. A decision relating to
such release shall take place in accordance
with a procedure that considers the severity
of the offense committed by the alien.
8 U.S.C. § 1226(c).
16 HERNANDEZ AVILEZ V. GARLAND
The differences in the discretionary or mandatory
language of Subsections A and C respectively have
significant consequences. Under Subsection A—the default
detention provision—a noncitizen is entitled to a bond
hearing at which the IJ considers whether the noncitizen is a
flight risk or a danger to the community. See Jennings, 138
S. Ct. at 847 (“Federal regulations provide that aliens
detained under § 1226(a) receive bond hearings at the outset
of detention. See 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1).”);
see also Singh v. Holder, 638 F.3d 1196, 1205 (9th Cir.
2011). By contrast, under Subsection C, which applies to
noncitizens convicted of certain crimes, a noncitizen is not
statutorily entitled to a bond hearing. See Jennings, 138 S.
Ct. 846–47.
Finally, Section 1231(a) applies to detention after the
entry of a final order of removal. In contrast to Subsections
A and C, Section 1231(a) does not apply to detention during
the pendency of administrative or judicial removal
proceedings. Section 1231 instead governs detention during
a ninety-day “removal period” after the conclusion of
removal proceedings.10 Id. § 1231(a)(1)–(2). This “removal
period” begins on the latest of either (1) the date a
noncitizen’s “order of removal becomes administratively
final,” (2) the date of a court’s final order, if the noncitizen’s
10
After the 90-day period, the Government may continue detaining
noncitizens under Section 1231(a) for “a period reasonably necessary to
secure removal.” See Zadvydas v. Davis, 533 U.S. 678, 699–701 (2001)
(holding that the Government’s detention authority under Section
1231(a) is authorized for “a period reasonably necessary to secure
removal”); cf. Johnson v. Arteaga-Martinez, No. 19-896, 2022 WL
2111342 (U.S. June 13, 2022) (holding that § 1231(a)(6) cannot be read
to require a bond hearing after six months of detention but that the text
of the statute gives the Government discretion to provide bond hearings).
HERNANDEZ AVILEZ V. GARLAND 17
removal order is judicially reviewed and this court stays the
noncitizen’s removal, or (3) the date the noncitizen is
released from criminal detention or confinement. Id.
§ 1231(a)(1)(B)(i)–(iii).
In 2008, this court addressed the interplay between these
three detention provisions in two opinions published by the
same panel on the same day: Prieto-Romero v. Clark, and
Casas-Castrillon v. Department of Homeland Security.
Prieto-Romero interpreted the language in Subsection A
authorizing the Government to detain noncitizens “pending
a decision on whether [they are] to be removed from the
United States.” See 8 U.S.C. § 1226(a); Prieto-Romero, 534
F.3d at 1062. We held that “it is reasonable to consider the
judicial review of a removal order as part of the process of
making an ultimate ‘decision’ as to whether an alien ‘is to be
removed.’”11 Id. Accordingly, we held that Subsection A
grants the Attorney General authority to detain a noncitizen
throughout the administrative and judicial phases of removal
proceedings. Detention authority under Subsection A ends,
we went on, only when this court or the Supreme Court
“enter[s] a final order denying [the noncitizen’s] petition for
review.” Id.Casas-Castrillon incorporated this understanding of
Subsection A in its holding and involved facts very similar
to those of the case at bar. Luis Felipe Casas-Castrillon was
a legal permanent resident who had been convicted of crimes
of moral turpitude under § 1227(a)(2)(A)(ii). Casas-
11
Because Prieto-Romero had filed a petition for review and we had
entered a stay of removal, we concluded that he was detained under
Subsection A. Prieto-Romero, 534 F.3d at 1062. We further explained
that, if we denied the petition for review, Prieto-Romero’s detention
would shift from Subsection A to Section 1231(a). Id.18 HERNANDEZ AVILEZ V. GARLAND
Castrillon, 535 F.3d at 945. Following Casas-Castrillon’s
release from state incarceration, he was placed in removal
proceedings and detained pursuant to Subsection C. Id. at
944. In July 2002, the BIA affirmed an IJ’s decision
ordering Casas-Castrillon removed from the United States.
Id. at 945.
From July 2002 through July 2008, Casas-Castrillon
sought relief from removal in the federal courts. Id. For
most of that period, a federal court had stayed his removal,
but Casas-Castrillon remained in immigration detention. Id.Then, in August 2005, Casas-Castrillon filed a petition for
habeas corpus arguing that his detention had become
indefinite and that his prolonged detention without a bond
hearing violated his right to procedural due process. Id.In Casas-Castrillon, we reversed the district court’s
order denying habeas relief on the ground that the source of
the Government’s authority to detain Casas-Castrillon had
shifted from Subsection C to Subsection A when the
administrative phase of his removal proceedings ended—
that is, upon the BIA’s decision. We reached that conclusion
by process of elimination as follows: First, we determined
that Section 1231(a) was inapplicable to Casas-Castrillon
because none of Section 1231(a)(1)(B)’s conditions had
been met—hence, the “removal period” had not begun. Id.
at 947. We explained that when a noncitizen “file[s] a
petition for review with this court and receive[s] a judicial
stay of removal,” the Government’s detention authority
under Section 1231(a) does not begin until judicial review
concludes with a court order and the stay is lifted. Id.; see
also Prieto-Romero, 534 F.3d at 1062. Casas-Castrillon
could not have been detained under Section 1231 because
his removal order remained judicially stayed pending
judicial review. Casas-Castrillon, 535 F.3d at 947.
HERNANDEZ AVILEZ V. GARLAND 19
Next, we concluded that Casas-Castrillon was not
detained pursuant to Subsection C. Id. We relied on three
sources of authority to conclude that Subsection C authority
ends with the BIA’s dismissal of an appeal. First, we looked
to Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005),
which used the canon of constitutional avoidance to hold that
Subsection C “applies only to ‘expedited removal of
criminal aliens.’” Id. Hernandez Avilez acknowledges that
Tijani’s language and interpretation of Subsection C is now
foreclosed by Jennings. Second, we noted the Supreme
Court’s observation in Demore v. Kim, 538 U.S. 510 (2003),
that:
[Subsection C] was intended only to
“govern[] detention of deportable criminal
aliens pending their removal proceedings,”
which the Court emphasized typically “lasts
roughly a month and a half in the vast
majority of cases in which it is invoked, and
about five months in the minority of cases in
which the alien chooses to appeal” his
removal order to the BIA.
Casas-Castrillon, 535 F.3d at 948. Finally, we pointed to
Department of Homeland Security regulations that
supported interpreting Subsection C as applying only until
the BIA dismisses the noncitizen’s appeal. Id. (citing 8
C.F.R. §§ 236.1(c)(1)(i) and 1241.1(a)–(c)).
Casas-Castrillon concluded that “[b]ecause neither
[Subsection A] nor [Subsection C] governs the prolonged
detention of aliens awaiting judicial review of their removal
orders,” the detention of noncitizens initially detained under
Subsection C “was authorized during this period under the
20 HERNANDEZ AVILEZ V. GARLAND
Attorney General’s general, discretionary detention
authority under [Subsection A].” Id. In other words, once
Casas-Castrillon sought review in the federal courts and
received a judicial stay of removal, the Government’s
detention authority shifted to Subsection A. Id. at 948.
So, pursuant to Casas-Castrillon, the statutory regime
authorizing detention of a noncitizen initially detained under
Subsection C operated as follows: Once the BIA affirmed a
final order of removal for a noncitizen detained under
Subsection C, the Government’s detention authority shifted
either to Section 1231(a), or if the noncitizen filed a petition
for review in federal court and received a stay of removal, to
Subsection A. See id. at 946–48. This shift relied on Prieto-
Romero’s holding that Subsection A, which refers to
detention “pending a decision on whether the alien is to be
removed from the United States,” applies not only during
administrative removal proceedings, but also during judicial
review. Id. at 948.
Finally, because Casas-Castrillon concluded that
prolonged detention without an individualized determination
“would be ‘constitutionally doubtful,’” it interpreted
Subsection A to require a bond hearing. Id. at 951 (quoting
Tijani, 430 F.3d at 1242). And because Casas-Castrillon was
detained under Subsection A, he was entitled to a bond
hearing to determine his dangerousness or risk of flight. Id.B.
In Jennings v. Rodriguez, the Supreme Court reversed
this court’s holding in Rodriguez v. Robbins, 804 F.3d 1060(9th Cir. 2015)—which had interpreted various immigration
detention statutes. See 138 S. Ct. at 836. Our decision in
Rodriguez held that Subsection C included “an implicit 6-
month time limit on the length of mandatory detention.” Id.
HERNANDEZ AVILEZ V. GARLAND 21
at 846. The Supreme Court rejected that interpretation of
Subsection C. Id. at 836, 838. The Court noted that
Subsection C “does not on its face limit the length of the
detention it authorizes.” Id. at 846. Rather, “subject only to
express exceptions, . . . [Subsection C] authorize[s] detention
until the end of applicable proceedings.” Id. at 842
(emphasis added). The Court explained that Subsection C
clearly “mandates detention” for the time period laid out in
Subsection A: “pending a decision on whether the alien is to
be removed from the United States.” See 8 U.S.C.
§ 1226(a); Jennings, 138 S. Ct. at 846. The Court therefore
concluded that Subsection C “mandates detention of any
alien falling within its scope and that detention may end prior
to the conclusion of removal proceedings ‘only if’ the alien
is released for witness-protection purposes.” Jennings, 138
S. Ct. at 847.
In addition, the Supreme Court acknowledged that
Subsection A authorizes a noncitizen’s release on bond but
held that “there [was] no justification for any of the
procedural requirements that the Court of Appeals layered
onto [Subsection A] without any arguable statutory
foundation.” Id. at 842. The Court, therefore, reversed this
court’s statutory holdings and remanded for consideration of
the noncitizens’ constitutional argument that regardless of
the statutory language, prolonged detention without a bond
hearing violates due process. Id. at 851.12
The question before us is whether Jennings abrogated
Casas-Castrillon’s holding that, with respect to noncitizens
subject to detention under Subsection C, detention authority
12
This court subsequently remanded those constitutional questions to the
district court. Rodriguez v. Marin, 909 F.3d 252, 255–56 (9th Cir. 2018).
22 HERNANDEZ AVILEZ V. GARLAND
shifts from Subsection C to Subsection A during the judicial
phase of removal proceedings. A three-judge panel may
depart from circuit precedent only if “our prior circuit
authority is clearly irreconcilable with the reasoning or
theory of intervening higher authority.” Miller v. Gammie,
335 F.3d 889, 893 (9th Cir. 2003) (en banc). “[T]he ‘clearly
irreconcilable’ requirement ‘is a high standard.’” FTC v.
Consumer Def., LLC, 926 F.3d 1208, 1213 (9th Cir. 2019)
(quoting Rodriguez v. AT&T Mobility Servs. LLC, 728 F.3d
975, 979 (9th Cir. 2013)). “[I]f we can apply our precedent
consistently with that of the higher authority, we must do
so.” Id.The holding of Jennings does not directly address the
question considered in Casas-Castrillon—when, if ever,
mandatory detention under Subsection C ends. But
Jennings’s reasoning regarding § 1226 makes clear that
Subsection A and Subsection C apply to discrete categories
of noncitizens—and not to different stages of a noncitizen’s
legal proceedings. That is, whatever the phrase “pending a
decision on whether the alien is to be removed’ means, see
8 U.S.C. § 1226(a), it applies to Subsection C as well as to
Subsection A. Thus, if a noncitizen is initially detained
under Subsection C, the Government’s authority to detain
her cannot switch to Subsection A based on the stage of her
legal case. Jennings’s reasoning that Subsection A and
Subsection C apply during the same stages of removal
proceedings is “clearly irreconcilable” with Casas-
Castrillon’s detention-shifting framework, which transforms
a noncitizen’s detention under Subsection C into detention
under Subsection A based on the procedural posture of the
noncitizen’s immigration case.
More specifically, in Jennings, the Court emphasized
that Ҥ 1226 distinguishes between two different categories
HERNANDEZ AVILEZ V. GARLAND 23
of aliens.” 138 S. Ct. at 837 (emphasis added). It explained
that Subsection A “creates a default rule . . . by permitting—
but not requiring—the Attorney General to issue warrants
for [a noncitizen’s] arrest and detention pending removal
proceedings.” Id. at 846. Subsection C, in contrast, states
that covered criminal noncitizens “shall” initially be
detained, and although Subsection A permits noncitizens to
be released on bond, Jennings was emphatic that the release
provision does not apply to Subsection C. Id. The Court in
Jennings stressed that, under the language in the statute,
noncitizens detained under Subsection C may be released on
bond only if “doing so is necessary for witness-protection
purposes and . . . [they] will not pose a danger or flight risk.”
Id. In no uncertain terms, the Supreme Court stated that
Subsection C “carves out a statutory category of aliens who
may not be released under [Subsection A].” Id. at 837.13
Other portions of Jennings similarly rest on the
understanding that Subsection C applies during the same
stages of a case as Subsection A. The Court explained that
“together with [Subsection A], [Subsection C] makes clear
that detention of aliens within its scope must continue
‘pending a decision on whether the alien is to be removed
from the United States.’” Id. at 846 (citing § 1226(a)). And
again, the Supreme Court applied the timeframe language in
Subsection A to define the length of the Government’s
detention authority under Subsection C: “[Subsection C]
13
Since Jennings, the Supreme Court has confirmed that Subsection C
is a limited exception to Subsection A. Nielsen v. Preap explained that
Subsection A “creates authority for anyone’s arrest or release under
§ 1226—and it gives the Secretary broad discretion as to both actions—
while [Subsection C]’s job is to subtract some of that discretion when it
comes to the arrest and release of criminal aliens.” 139 S. Ct. 954, 966
(2019).
24 HERNANDEZ AVILEZ V. GARLAND
mandates detention ‘pending a decision on whether the alien
is to be removed from the United States,’ § 1226(a), and it
expressly prohibits release from that detention except for
narrow, witness-protection purposes.” Id.
The district court in this case concluded that Jennings
and Casas-Castrillon are reconcilable because “[o]ne could
reasonably interpret the language ‘together with [Subsection
A] . . .’ to mean that the two statutory sections work together
to ensure that a noncitizen remains in custody pending
judicial review of a final order of removal.” Hernandez
Avilez v. Barr, No. 19-CV-08296-CRB, 2020 WL 1704456,
at *3 (N.D. Cal. Apr. 8, 2020). In other words, the district
court read Jennings’s “together with” language to mean that
Subsections A and C tag-team to ensure that a noncitizen can
be held in custody pending judicial review of a final order of
removal. On this interpretation, Subsection C “applies
before the order of removal becomes final,” mandating
detention during proceedings before the agency, “and
[Subsection A] applies after the order of removal becomes
final,” id., allowing, but not mandating, detention during
litigation of a petition for review in the federal Courts of
Appeals. We do not agree that Jennings can plausibly be so
interpreted. Rather, Jennings makes clear that Subsection A
and Subsection C alike—that is, each one, not in tandem—
authorize detention “pending a decision on whether the alien
is to be removed from the United States.” 8 U.S.C.
§ 1226(a).
Jennings, therefore, is clearly irreconcilable with Casas-
Castrillon’s conclusion that a Subsection C detainee who
pursues judicial review of an order of removal is detained
first under Subsection C and later under Subsection A. We
hold that Jennings abrogates this portion of our decision in
Casas-Castrillon.
HERNANDEZ AVILEZ V. GARLAND 25
C.
Jennings’s holding that Subsection A and Subsection C
govern during the same time period does not tell us what the
time period is. Subsection A tells us that the Government
has the authority to detain noncitizens “pending a decision
on whether the alien is to be removed from the United
States.” 8 U.S.C. § 1226(a). Jennings tells us that
Subsection C authorizes detention during the same period as
Subsection A but does not define that period. To be sure,
Jennings tells us that the Government’s authority under both
Subsections has a “definite termination point” and ends at
“the conclusion of removal proceedings.” Jennings, 138 S.
Ct. at 846. But Jennings did not address when, for purposes
of Subsection A and C, removal proceedings end. Thus,
Jennings is silent as to whether the relevant time period
includes only the administrative phase of removal
proceedings, terminating when the BIA dismisses an appeal
from an order of removal, or also encompasses the period of
judicial review before a federal Court of Appeals.
Although Jennings did not grapple with this question, we
did in Prieto-Romero. As we have explained, Prieto-
Romero held that detention authority under Subsection A
continues through judicial review because it “is reasonable
to consider the judicial review of a removal order as part of
the process of making the ultimate ‘decision’ as to whether
an alien ‘is to be removed.’” 534 F.3d at 1062.14
Although Prieto-Romero was focused on Subsection A,
we know after Jennings that the time period defined by
14
Casas-Castrillon shared this understanding of Subsection A, and it
relied on that language from Prieto-Romero in explaining the shift in
detention authority from Subsection C to A. 535 F.3d at 948.
26 HERNANDEZ AVILEZ V. GARLAND
Subsection A—“pending a decision on whether the alien is
to be removed from the United States”—applies to
Subsection C as well. Accordingly, in light of Prieto-
Romero, we hold that the Government’s authority to detain
a noncitizen under Subsection C likewise applies during the
administrative and judicial phases of removal proceedings.
To the extent Casas-Castrillon held otherwise, see 535 F.3d
at 948 (holding that the Government’s authority to detain a
noncitizen under Subsection C ends “upon the dismissal of
the alien’s appeal by the BIA”), it no longer is good law.
In sum, Jennings’s holding that Subsection C’s temporal
scope is defined by Subsection A and Prieto-Romero’s
holding that Subsection A applies throughout the
administrative and judicial phases of removal proceedings
together compel us to conclude that Subsection C applies
throughout the administrative and judicial phases of removal
proceedings as well. Consequently, noncitizens subject to
mandatory detention under Subsection C are not statutorily
eligible for release on bond during the judicial phase of the
proceedings, except under the narrow circumstances defined
by § 1226(c)(2).
We recognize that there are reasons to doubt whether
Subsection C does extend to the judicial phase of removal
proceedings. First, in Demore v. Kim, the Supreme Court
rejected a due process challenge to mandatory detention
under Subsection C on the ground that the detention
authorized by Subsection C is relatively short-lived. 538
U.S. at 529. In making this point, the Court plainly assumed
that detention under Subsection C applies solely to the
administrative phase of removal proceedings. Citing
statistics relating to the length of administrative removal
proceedings, the Court wrote:
HERNANDEZ AVILEZ V. GARLAND 27
Under [Subsection C], not only does
detention have a definite termination point, in
the majority of cases it lasts for less than the
90 days we considered presumptively valid in
Zadvydas. The Executive Office for
Immigration Review has calculated that, in
85% of the cases in which aliens are detained
pursuant to [Subsection C], removal
proceedings are completed in an average time
of 47 days and a median of 30 days. In the
remaining 15% of cases, in which the alien
appeals the decision of the Immigration
Judge to the Board of Immigration Appeals,
appeal takes an average of four months, with
a median time that is slightly shorter.
. . . In sum, the detention at stake under
[Subsection C] lasts roughly a month and a
half in the vast majority of cases in which it
is invoked, and about five months in the
minority of cases in which the alien chooses
to appeal [to the BIA].
Id. at 529–30 (emphasis added) (footnotes and citations
omitted).15 The Court, in other words, assumed that a
15
The federal Government subsequently disclosed that the statistics it
provided in Demore regarding the typical length of detention were
erroneous. See Letter from Ian Heath Gershengorn, Acting Solicitor
General, U.S. Dep’t of Just. Office of the Solicitor General, to Hon. Scott
S. Harris, Clerk, Supreme Court of the United States (Aug. 26, 2016),
available at https://trac.syr.edu/immigration/reports/580/include/01-
1491%20-%20Demore%20Letter%20-%20Signed%20Complete.pdf.
The quoted passage from Demore is relevant here not for the accuracy
of its statistics, but because the Court’s reasoning regarding those
28 HERNANDEZ AVILEZ V. GARLAND
decision by the BIA would mark the upper limit of
Subsection C detention.
Second, in Jennings the Supreme Court cited and
discussed the foregoing passage in Demore. Jennings said:
[Subsection C] is not “silent” as to the length
of detention. It mandates detention “pending
a decision on whether the alien is to be
removed from the United States,” § 1226(a) .
...
. . . In Demore v. Kim, 538 U.S., at 529, we
distinguished [Subsection C] from the
statutory provision in Zadvydas by pointing
out that detention under [Subsection C] has
“a definite termination point”: the conclusion
of removal proceedings. As we made clear
there, that “definite termination point”—and
not some arbitrary time limit devised by
courts—marks the end of the Government’s
detention authority under [Subsection C].
138 S. Ct. at 846. Thus, Jennings referred to Demore’s
understanding as to the scope of Subsection C detention
authority, and Demore assumed that the Government’s
authority under Subsection C extended up to, but not
beyond, the administrative phase of removal proceedings.
Jennings did not, however, specifically note or adopt
Demore’s assumption as to the limited coverage of
Subsection C. And the class representative in Jennings filed
statistics reveal which events it held triggered the end of Subsection C’s
detention authority.
HERNANDEZ AVILEZ V. GARLAND 29
his habeas petition seeking a bond hearing while litigating
his petition for review before this circuit. The class, the
Government, and the Court all seem to have assumed during
the Jennings litigation that Subsection C authorizes
detention until a Court of Appeals reaches a decision. See
id. at 839 (noting that the class at issue involved
noncitizens—including those detained under Subsection
C—“detained for longer than six months . . . pending
completion of removal proceedings, including judicial
review”).
Given the ambiguity in Jennings as to the length of
§ 1226’s detention authority, we are not free to disregard
Prieto-Romero’s quite explicit holding that Subsection A
ends with the end of judicial review. Under our precedent,
we are bound by our prior decisions unless a “relevant court
of last resort [has] undercut the theory or reasoning
underlying the prior circuit precedent in such a way that the
cases are clearly irreconcilable.” Miller, 335 F.3d at 900.
That standard is not satisfied here. Jennings did not squarely
address when detention under Subsection A, and so under
Subsection C, ends. Its general reference to Demore, which
itself is not explicit on this point, cannot fill that gap.
Jennings, therefore, is not clearly irreconcilable with Prieto-
Romero’s interpretation of the relevant statutory language
defining the endpoint of Subsection A, and, after Jennings,
Subsection C.
Setting aside Prieto-Romero, moreover, could leave a
gaping hole in the statutory scheme. If detention under
Subsection C ends when the BIA issues its decision,
detention under Subsection A is coextensive with Subsection
C (as Jennings tells us), and detention under Section 1231(a)
begins only after judicial review, then there would be no
authority to detain any noncitizens—whether with a criminal
30 HERNANDEZ AVILEZ V. GARLAND
record or not—under Section 1231 during the judicial phase
of removal proceedings.16
To conclude, under Jennings, Subsection A and
Subsection C alike authorize detention “pending a decision
on whether the alien is to be removed from the United
Sates.” 8 U.S.C. § 1226(a); Jennings, 138 S. Ct. at 846. To
the extent Casas-Castrillon holds otherwise, it is no longer
good law. Under Prieto-Romero, the statutory phrase
“pending a decision on whether the alien is to be removed
from the United States,” 8 U.S.C. § 1226(a), encompasses
“the judicial review of a removal order,” 534 F.3d at 1062.
Thus, under Prieto-Romero, Subsection C authorizes
detention during the judicial review phase of removal
proceedings. Although that conclusion is in some tension
with Demore, 538 U.S. at 529–30, which Jennings in part
relied upon, 138 S. Ct. at 846, neither Demore nor Jennings
squarely addressed the meaning of the statutory phrase
“pending a decision on whether the alien is to be removed
from the United States.” 8 U.S.C. § 1226(a). Accordingly,
under Miller v. Gammie, 335 F.3d at 900, Prieto-Romero
remains good law on this point.
We follow Jennings and Prieto-Romero and hold that
Subsection C authorizes detention during the judicial review
phase of removal proceedings. Because Hernandez Avilez
was detained under Subsection C, she was not entitled to a
Casas-Castrillon bond hearing under Subsection A.
16
The issue presented to this court on appeal by the Government as
appellant was limited to whether Subsection A or Subsection C of
Section 1226 applies during this time period. Neither party raised any
argument that Section 1231(a) applies, whether because the stay in this
case was a temporary stay, or for any other reason. So we do not consider
that possibility.
HERNANDEZ AVILEZ V. GARLAND 31
III.
Hernandez Avilez argued before the district court that
even if her detention was governed by Subsection C, she was
entitled to habeas relief as a matter of due process. The
district court declined to reach this argument, and we make
no determination regarding the issue here. We leave this
question to the district court to decide in the first instance.
The district court’s order granting Hernandez Avilez
habeas relief and ordering the Government to provide her
with a bond hearing under Casas-Castrillon is VACATED.
This case is REMANDED to the district court for
consideration of Hernandez Avilez’s due process claim.
Hernandez Avilez’s motion to take judicial notice is
GRANTED. Dkt. No. 42. Each side shall bear its own costs
of appeal.
BERZON, Circuit Judge, concurring:
I concur in the principal opinion. I write separately to
express my disquiet with the partial abrogation Miller v.
Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc), has
compelled today, and to urge my colleagues to consider
rehearing this case en banc.
As noted in the principal opinion, Prieto-Romero v.
Clark, 534 F.3d 1053 (9th Cir. 2008), and Casas-Castrillon
v. Department of Homeland Security, 535 F.3d 942 (9th Cir.
2008), were decided by the same panel on the same day. The
cases were of a piece, laying out a cohesive interpretation of
8 U.S.C. §§ 1226(a) and (c). Specifically, Casas-Castrillon
held that upon a decision by the BIA, the Attorney General’s
32 HERNANDEZ AVILEZ V. GARLAND
detention authority shifted from § 1226(c) (“Subsection C”)
to § 1226(a) (“Subsection A”). See 535 F.3d at 948. Prieto-
Romero held that detention authority under Subsection A
continued through the end of judicial review. See 534 F.3d
at 1062. Prieto-Romero’s holding made Casas-Castrillon’s
“shift” possible; Casas-Castrillon cited the relevant
language from Prieto-Romero to explain its holding. See
Casas-Castrillon, 535 F.3d at 948.
Since then, the Supreme Court has interpreted
Subsections A and C as temporally coextensive. See
Jennings v. Rodriguez, 138 S. Ct. 830, 847 (2018); Nielsen
v. Preap, 139 S. Ct. 954, 959–60, 966–67 (2019). Whatever
event marks “a decision on whether the alien is to be
removed,” the temporal limit specified in Subsection A, that
event marks the end of detention authority for noncitizens
detained under Subsection C, too. So the “shift” in detention
authority Casas-Castrillon described has been abrogated.
The question remains, as the principal opinion notes,
what marks that endpoint? The Supreme Court has not
squarely considered the question. We have, at least regarding
Subsection A. So, under Miller v. Gammie we are bound by
our partial answer in Prieto-Romero: detention authority for
Subsection A continues through the end of judicial review.
534 F.3d at 1062. The Prieto-Romero panel, of course, never
contemplated that its holding regarding Subsection A’s
temporal reach would apply to Subsection C. To the
contrary, it expected it would not, as Casas-Castrillon
supplied a different endpoint.
The result of today’s holding is to save fragments of two
opinions that were cohesively crafted, to fashion an entirely
new interpretation of the statutory scheme that technically
holds together—it survives intervening Supreme Court
HERNANDEZ AVILEZ V. GARLAND 33
authority and preserves Ninth Circuit authority—but
diverges dramatically from this Court’s original
interpretation. Rehearing this case en banc would allow the
Court to consider the interdependent holdings of Prieto-
Romero and Casas-Castrillon anew in light of Jennings and
Nielsen to reach an interpretation that coheres. Sitting en
banc, we could consider whether the shared endpoint for
Subsection A and Subsection C is the end of administrative
proceedings, not the end of judicial review.
That inquiry would invite full consideration of the
statutory text and purpose, an exploration currently off limits
because of Prieto-Romero. Such exploration might reveal,
for example, that in other parts of the Immigration and
Nationality Act (“INA”), Congress expressly specified when
it intended a period of time to include judicial review. See,
e.g., 8 U.S.C. § 1255(e)(2) (“The period described in this
paragraph is the period during which administrative or
judicial proceedings are pending regarding the alien’s right
to be admitted or remain in the United States.”) (emphasis
added); id. § 1252(b)(3)(B) (“Service of the petition on the
officer or employee does not stay the removal of an alien
pending the court’s decision on the petition, unless the court
orders otherwise.”) (emphasis added).
The inquiry would also allow deeper consideration of the
Supreme Court’s understanding of the temporal endpoint of
Subsection A and Subsection C. As the principal opinion
today illustrates, interpreting the shared endpoint as the end
of administrative review finds support in Demore v. Kim,
538 U.S. 510 (2003). See Principal Opinion 26–29. Demore
considered the complete set of “cases in which aliens are
detained pursuant to § 1226(c),” and noted that in 85% of
them, removal proceedings were completed in an average
time of 47 days, whereas “[i]n the remaining 15% of cases,
34 HERNANDEZ AVILEZ V. GARLAND
in which the alien appeals the decision of the Immigration
Judge to the Board of Immigration Appeals,” removal
proceedings took an average of four months. Demore, 538
U.S. at 529. In other words, in 100% of cases, “removal
proceedings” were deemed concluded with the end of
administrative, not judicial, proceedings.1
A later communication from the Solicitor General’s
Office to the Supreme Court confirms that the executive
branch also understood Subsection C to authorize detention
only through administrative proceedings. In August 2016,
while Jennings was pending before the Court, the Acting
Solicitor General sent a letter to the Clerk of the Court
acknowledging “significant errors” and the exclusion of
“more than 15,000 cases that should have been counted” in
the data it had presented to the Court in Demore.2 The
Solicitor General’s letter enclosed an analysis from the
1
To the extent Judge Bea’s concurrence suggests otherwise, it misreads
Demore. Demore notes that these statistics do not “include ‘the many
cases in which removal proceedings are completed while the alien is still
serving time for the underlying conviction.’” Bea Concurrence 38-39
(quoting Demore, 538 U.S. at 529). But Demore invokes that separate
category of noncitizens to show prolonged detention under Subsection C
is not at issue for those individuals because they “are never subjected to
mandatory detention at all.” 538 U.S. at 530. Any suggestion that this
separate category is part of the set of individuals detained under
Subsection C, all of whose detention ended with a BIA decision, is
undercut by Demore’s description of those individuals as not subject to
Subsection C’s mandatory detention, and by Demore’s prior express
consideration of 100% of cases subject to Subsection C.
2
See Letter from Ian Heath Gershengorn, Acting Solicitor General, to
Hon. Scott S. Harris, Clerk, Supreme Court of the United States 2 (Aug.
26, 2016), Demore v. Kim, 538 U.S. 510 (2003) (No. 01-1491)
(“Gershengorn Letter”), available at https://trac.syr.edu/immigration/re
ports/580/include/01-1491%20-%20Demore%20Letter%20-%20Signe
d%20Complete.pdf.
HERNANDEZ AVILEZ V. GARLAND 35
Executive Office of Immigration Review detailing the
miscalculations and stating: “Please note that the length of
appeal time measures the time between when a party files a
notice of appeal with the Board of Immigration Appeals
(BIA) and when the BIA renders a decision on that appeal.”3
As the principal opinion notes, though, this interpretation
of Subsection C creates an apparent problem: it could “leave
a gaping hole in the statutory scheme” between when § 1226
authority ends and 8 U.S.C. § 1231 authority begins. See
Principal Opinion 29. Specifically, the Attorney General
could lack statutory authority under either provision to
detain a noncitizen while the court of appeals considered a
petition for review.
Such an apparent gap in detention authority is indeed
perplexing. But a review of Congress’s overhaul of the INA
in 1996 reveals that Congress may have envisioned a
removal system in which there was no need for such
detention. First, Congress changed the INA to authorize the
removal of noncitizens immediately upon a BIA decision,
newly allowing a removed noncitizen to file and litigate a
petition for review from outside the United States. Second,
Congress expressly directed the executive branch to finish
removal proceedings against noncitizens with criminal
records before their period of criminal detention concluded,
enabling the removal of those individuals immediately upon
release from criminal detention and reducing the need for
civil detention authority under Subsection C at all, let alone
beyond the period of administrative review.
3
See Gershengorn Letter, Enclosure (Letter from Jean C. King, General
Counsel, Executive Office of Immigration Review, to Ian Heath
Gershengorn, Acting Solicitor General 2 (Aug. 25, 2006)) (emphasis
added).
36 HERNANDEZ AVILEZ V. GARLAND
More specifically: Before 1996, “courts of appeals
lacked jurisdiction to review the deportation order of an alien
who had already left the United States,” and most aliens
were entitled to “an automatic stay of their removal order
while judicial review was pending.” Nken v. Holder, 556
U.S. 418, 424 (2009) (citing 8 U.S.C. §§ 1105a(c),
1105a(a)(3) (1994 ed.)). With the passage of the Illegal
Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”) in 1996, Congress decided “to allow continued
prosecution of a petition [for review] after removal,” and so
repealed the statutory provision that had automatically
stayed orders of removal while a noncitizen pursued a
petition for review. Id. at 435. Thus, after IIRIRA, removed
noncitizens can “pursue their petitions for review” from the
country to which they were removed, and if they prevail they
“can be afforded effective relief by facilitation of their
return.” Id. Congress thus expected that after IIRIRA, a large
portion of noncitizens would be removed upon the BIA’s
denial of an appeal, eliminating the need for detention
authority except during the “removal period” § 1231 covers,
that is, after a noncitizen’s removal order is final. 8 U.S.C.
§ 1231(a)(1)(B).
Additionally, Congress sought dramatically to reduce the
number of noncitizens detained under Subsection C.
Congress “directed the INS to identify and track deportable
criminal aliens while they are still in the criminal justice
system.” Demore, 538 U.S. at 530 n.13 (citing IIRIRA and
the Antiterrorism and Effective Death Penalty Act of 1996).
The goal was to “complete removal proceedings against all
deportable criminal aliens before their release.” Id. These
efforts worked: one year after IIRIRA’s passage, removal
proceedings had been completed for “nearly half of all
deportable criminal aliens” before their release from prison.
HERNANDEZ AVILEZ V. GARLAND 37
Id. Those individuals were “never subjected to mandatory
[civil] detention at all.” Id. at 530. Congress intended to
reduce to zero the population of noncitizens with criminal
records whose removal proceedings continued beyond the
period of their criminal detention. Congress therefore would
have seen little need to provide continued civil detention
authority for such individuals. As Demore noted, if the
government achieved its goal, Ҥ 1226(c) and the temporary
detention it mandates would be rendered obsolete.” Id. at
530 n.13. All told, the lack of detention authority the posited
interpretation creates can be explained by provisions in
IIRIRA and the executive actions that followed.
Perhaps the court would not arrive at this interpretation
on en banc review. But we should take the opportunity
capaciously to consider all of § 1226 in light of Jennings by
revisiting Prieto-Romero and Casas-Castrillon in their
entirety. I join the principal opinion today because I believe
it a proper application of Miller v. Gammie to this unusual
interaction between our precedents and a new Supreme
Court precedent. But the result is to discard a chunk of two
interdependent holdings and leave this Circuit with the
partial remains. Perhaps we can do better sitting en banc.
38 HERNANDEZ AVILEZ V. GARLAND
BEA, Circuit Judge, concurring:
I concur in the principal opinion, with the following two
exceptions. First, for the reasons explained below, I do not
believe there is any meaningful “tension” between the
holdings of Demore v. Kim, 538 U.S. 510 (2003), Jennings
v. Rodriguez, 138 S. Ct. 830 (2018), and Prieto-Romero v.
Clark, 534 F.3d 1053 (9th Cir. 2008), with respect to the
meaning of “pending a decision on whether the alien is to be
removed from the United States,” 8 U.S.C. § 1226(a).
Second, I reject the principal opinion’s characterization of
Petitioner as a “noncitizen.” Petitioner is indeed a citizen—
of Mexico. And here, under 8 U.S.C. § 1101(a)(3),
Petitioner is described in the statutes applicable to this case
as an alien. Federal courts applying federal immigration
laws should not invent their own terminology to stand in
place of definitions used in the congressional statutes they
are tasked with applying.
1. In contrast to the principal opinion’s characterization,
Demore did not “plainly assume” that detention authority
under § 1226(c) extended only to the administrative phase of
removal proceedings, and Jennings did not further endorse
this (alleged) understanding of § 1226(c). Principal Op. at
26–29.
In remarking on certain statistics provided by the
Executive Office for Immigration Review (EOIR), Demore
was in no way attempting to set the metes and bounds of the
Government’s detention authority under § 1226(c). Instead,
the Court was simply commenting on the general experience
of aliens challenging their detention under § 1226(c).
Indeed, Demore itself noted that the referenced EOIR
statistics were incomplete, in that they did not include “the
many cases in which removal proceedings are completed
HERNANDEZ AVILEZ V. GARLAND 39
while the alien is still serving time for the underlying
conviction.” Demore, 538 U.S. at 529.1 More important
still, Demore offered the following observation concerning
the tradeoffs an alien faces when contemplating a challenge
to a removal order:
Prior to the enactment of § 1226(c), when the
vast majority of deportable criminal aliens
were not detained during their deportation
proceedings, many filed frivolous appeals in
order to delay their deportation. See S. Rep.
104–48, at 2 (“Delays can earn criminal
aliens more than work permits and wages—
if they delay long enough they may even
obtain U.S. citizenship”). Cf. Zadvydas, 533
U.S., at 713, (KENNEDY, J., dissenting)
(“[C]ourt ordered release cannot help but
encourage dilatory and obstructive tactics by
aliens”). Respondent contends that the
length of detention required to appeal may
deter aliens from exercising their right to
do so. Brief for Respondent 32. As we have
explained before, however, “the 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
1
To the extent Judge Berzon’s concurrence suggests my concurrence
misreads Demore, it misreads my concurrence. My point in highlighting
Demore’s characterization of the EOIR statistics is to show how thin a
reed it is to suggest that Demore explicitly considered “100% of cases
subject to Subsection C” solely by way of Demore’s discussion of those
cursory statistics. Judge Berzon Concurrence at 34 n.1.
40 HERNANDEZ AVILEZ V. GARLAND
no constitutional prohibition against
requiring parties to make such choices.
McGautha v. California, 402 U.S. 183, 213
(1971) (internal quotation marks omitted);
accord, Chaffin v. Stynchcombe, 412 U.S. 17,
30–31 (1973).
Demore, 538 U.S. at 530 n.14 (emphases added). Demore
recognized that the longer an alien wishes to challenge his
removal order, the longer he will be detained under
§ 1226(c). Demore in no way “plainly assumed” that
detention authority under § 1226(c) extended only to the
administrative phase of removal proceedings.
Consider the alternative. While I generally do not find
legislative history persuasive, Demore went out of its way to
explain that § 1226(c) was adopted “against a backdrop of
wholesale failure by the INS to deal with increasing rates of
criminal activity by aliens.” Demore, 538 U.S. at 518.
Demore noted that Congress “had before it evidence that one
of the major causes of the INS’ failure to remove deportable
criminal aliens was the agency’s failure to detain those
aliens during their deportation proceedings.” Id. at 519(emphasis added). Demore cited as a key animating factor
behind Congress’ enactment of § 1226(c) that “one out of
four criminal aliens released on bond absconded prior to the
completion of his removal proceedings.” Demore, 538 U.S.
at 520. Finally, Demore observed as follows:
During the same period in which Congress
was making incremental changes to the
immigration laws, it was also considering
wholesale reform of those laws. Some
studies presented to Congress suggested
HERNANDEZ AVILEZ V. GARLAND 41
that detention of criminal aliens during
their removal proceedings might be the
best way to ensure their successful
removal from this country. See, e.g., 1989
House Hearing 75; Inspection Report, App.
46; S. Rep. 104–48, at 32 (“Congress should
consider requiring that all aggravated felons
be detained pending deportation. Such a step
may be necessary because of the high rate of
no-shows for those criminal aliens released
on bond”). It was following those Reports
that Congress enacted 8 U.S.C. § 1226,
requiring the Attorney General to detain a
subset of deportable criminal aliens
pending a determination of their
removability.
Demore, 538 U.S. at 521 (emphases added). Reading
Demore as suggesting that § 1226(c) permits detention only
through the completion of agency proceedings would be to
turn on its head Demore’s discussion of the failures
Congress was remedying by enacting § 1226(c). Moreover,
imagine the situation if Demore is read in that manner: after
the Government has invested substantial resources in
procuring a removal order of a criminal alien, at the very
height of the Government’s interest in removing the alien,
detention authority under § 1226(c) would end, with the
alien being released pending judicial review. Nothing in
Demore supports this reading of § 1226(c).
For its part, Jennings says nothing about what “pending
a decision on whether the alien is to be removed from the
United States” actually means. Jennings simply referred
back to Demore for the proposition that detention authority
42 HERNANDEZ AVILEZ V. GARLAND
under § 1226(c) is finite, extending only until “a decision on
whether the alien is to be removed from the United States”
is actually made:
In Demore v. Kim, 538 U.S. at 529, we
distinguished § 1226(c) from the statutory
provision in Zadvydas [8 U.S.C.
§ 1231(a)(6)] by pointing out that detention
under § 1226(c) has “a definite termination
point”: the conclusion of removal
proceedings. As we made clear there, that
“definite termination point”—and not some
arbitrary time limit devised by courts—marks
the end of the Government’s detention
authority under § 1226(c).
Jennings, 138 S. Ct. at 846. Holding that “the conclusion
of removal proceedings” includes judicial review is as much
a “definite termination point” as would be to hold that “the
conclusion of removal proceedings” refers solely to agency
proceedings—either definition is equally “definite” in
providing a termination point.
Thus, nothing in Jennings forecloses Prieto-Romero’s
holding that construes “the conclusion of removal
proceedings” as encompassing judicial review. And for all
the reasons highlighted above, Demore is entirely consistent
with this reading of § 1226(c) as permitting detention of
certain criminal aliens through judicial review. There is
simply no tension between Demore, Jennings, and Prieto-
Romero.
2. It is an unfortunate trend in the caselaw that certain
words and expressions are gaining continued acceptance to
stand in place of terms and definitions put forth in binding
HERNANDEZ AVILEZ V. GARLAND 43
statutes. In this regard, the non-statutory word “noncitizen”
has attained a certain prominence throughout the federal
judiciary. See, e.g., Patel v. Garland, 142 S. Ct. 1614, 1618–
19 (2022). Of course, the term is textually inaccurate as
applied to the petitioner in this case, who is a citizen of
Mexico. Indeed, most of the petitioners appearing before
this Circuit are citizens of one country or another.
Defenders of “noncitizen” sometimes claim that this
word is interchangeable with alien because everyone is a
citizen of somewhere, sans the unusual case of the individual
who has somehow been rendered stateless. This contention
is not an accurate excuse. For one, monarchies exist. A
Spanish born person is a “subject” of the Kingdom of Spain,
albeit he may have democratic rights. One born in Saudi
Arabia is similarly a “subject” of the House of Saud. Even
more, a person born in American Samoa or Swains Island is
a U.S. national, but not a citizen; he or she cannot vote in
federal elections nor hold federal office.2
These distinctions matter. Words matter. Our federal
immigration statutes concern themselves with aliens. This
word “alien” is not a pejorative nor an insult. I certainly did
not consider it an insult to be referred to as an alien in my
deportation proceedings. Nor is the use of the term “alien”
wholly untethered from its judicial context that it permits
being construed in the manner the principal opinion
suggests. Principal Op. at 8 n.1. Alien is a statutory word
defining a specific class of individuals. And when used in
its statutory context, it admits of its statutory definition, not
2
See, e.g., U.S. Citizen Vs U.S. National: Differences, US Immigration,
https://www.usimmigration.org/articles/u-s-citizen-vs-u-s-national-wha
t-is-the-difference (last visited August 23, 2022).
44 HERNANDEZ AVILEZ V. GARLAND
those definitions with negative connotations that can be
plucked at will from the dictionary.
I must note that the judiciary’s embrace of “noncitizen”
also comes at a real cost to litigants, who are now forced to
make a lose-lose choice. On the one hand, a litigant could
decide to use the statutory term “alien” in his briefing before
the court, which risks offending devotees to “noncitizen.”
On the other hand, a litigant could decide to use the non-
statutory term “noncitizen” in his briefing before the court,
at the risk of showing a disdain for statutory definitions.
Sadly, this quandary is laid bare by the principal opinion’s
express association of the statutory term “alien” with the
label “offensive.” Principal Op. at 8 n.1. By intimating that
“alien” in its statutory context has this meaning, the majority
has substantiated the concern that a contingent of judges will
respond negatively to the term, even though its neutral,
statutory definition governs this case. This situation is
entirely unnecessary, and I hope my colleagues throughout
the judiciary can be persuaded to dispense with such rhetoric
altogether.
Perhaps one day the federal statutes will be changed to
reference only “noncitizens.”3 And if that day comes, our
decisions will respond accordingly to such changes. But
until then, I respectfully suggest my colleagues hew closely
to the laws as they are written, both in form and in substance.
3
Indeed, this much has already happened in connection with certain laws
of the state of California. See, e.g., The Associated Press, California
Gov. Newsom signs law to replace term ‘alien’ with ‘noncitizen’ or
‘immigrant’, NBC News (Sept. 25, 2021), https://www.nbcnews.com/ne
ws/us-news/california-gov-newsom-signs-law-replace-term-alien-nonci
tizen-or-n1280095.