Javier Martinez v. Lowell Clark

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAVIER MARTINEZ, No. 21-35023
Petitioner-Appellant,
D.C. No.
v. 2:20-cv-00780-
TSZ
LOWELL CLARK, Warden, Northwest
Detention Center; NATHALIE ASHER,
Tacoma Field Office Director, OPINION
United States Immigration and
Customs Enforcement; ALEJANDRO
MAYORKAS, Secretary, Department
of Homeland Security; MERRICK B.
GARLAND, Attorney General,
Respondents-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted March 7, 2022
Seattle, Washington
Filed June 15, 2022
Before: Jacqueline H. Nguyen, Eric D. Miller, and
Patrick J. Bumatay, Circuit Judges.
Opinion by Judge Bumatay
2 MARTINEZ V. CLARK
SUMMARY *
Immigration/Habeas/Detention
Affirming in part and vacating in part the district court’s
denial of Javier Martinez’s habeas petition challenging his
immigration detention, and remanding, the panel held that:
1) federal courts lack jurisdiction to review the discretionary
determination of whether a particular noncitizen poses a
danger to the community such that he is not entitled to bond;
and 2) the district court correctly denied Martinez’s claims
that the Board of Immigration Appeals erred or violated due
process in denying bond.
Martinez was detained under 8 U.S.C. § 1226(c), which
provides for mandatory detention of noncitizens with certain
criminal convictions throughout their removal proceedings.
After Martinez filed a habeas petition, the district court
ordered that he receive a bond hearing, reasoning that his
prolonged mandatory detention violated due process. An IJ
denied bond, and the BIA affirmed, concluding that the
government sustained its burden to show that Martinez was
a danger to the community by clear and convincing
evidence. Martinez then brought the instant habeas petition,
seeking release. The district court asserted jurisdiction over
Martinez’s claims, but denied habeas relief.
The panel held that the district court lacked jurisdiction
to review the determination that Martinez posed a danger to
the community, concluding that dangerousness is a
discretionary determination covered by the judicial review
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MARTINEZ V. CLARK 3
bar of 8 U.S.C. § 1226(e). That section bars federal courts
from reviewing “discretionary judgment[s]” regarding the
detention under § 1226. In concluding that the
dangerousness determination is discretionary, the panel
observed that the only guidance as to what it means to be a
“danger to the community” is an agency-created multi-
factorial analysis with no clear, uniform standard for what
crosses the line into dangerousness. Thus, the panel
explained it was left without standards sufficient to permit
meaningful judicial review. Moreover, the panel explained
that dangerousness is a fact-intensive inquiry that requires
the equities be weighed, and like the other determinations
this court has found to be discretionary (such as whether a
crime is “violent or dangerous,” or whether hardship is
“exceptional and extremely unusual”), is a subjective
question that depends on the identity and the value judgment
of the person or entity examining the issue.
The panel further explained that the district court erred
in relying on Hernandez v. Sessions, 872 F.3d 976 (9th Cir.
2017), to assert jurisdiction. The panel explained that
Hernandez’s class action challenge to the “policy” and
“process” over bond hearings is a far cry from Martinez’s
challenge to the individualized finding that he is
“dangerous.”
Martinez contended that the facts of his case are settled
and, as in Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062(2020), courts can review the application of a legal standard
to established facts as a “question of law” not covered by the
bar of § 1226(e). The panel explained that the key point in
Guerrero-Lasprilla is that courts are not precluded from
reviewing the application of legal standards to settled facts,
but here there is no legal standard that, if met, requires a
certain outcome. The panel also rejected Martinez’s attempt
4 MARTINEZ V. CLARK
to reframe the question as an evaluation of whether the
undisputed facts satisfy the constitutionally compelled
evidentiary standard for dangerousness, explaining that it
would not allow Martinez to circumvent § 1226(e)’s
jurisdictional bar by cloaking an abuse of discretion
argument in constitutional garb. Thus, the panel vacated the
district court’s judgment as to dangerousness and remanded
with instructions to dismiss.
As to Martinez’s remaining claims, the panel concluded
that the district court had jurisdiction to review them as
constitutional claims or questions of law not covered by
§1226(e), but agreed with the district court that they must be
denied. First, Martinez contended that the BIA failed to
apply the correct burden of proof and review all the evidence
in the record in assessing dangerousness. The panel
explained that there were no red flags to suggest that the BIA
failed to consider all the evidence; rather, the BIA correctly
noted the government’s burden and reviewed the record, but
concluded that, under the totality of the evidence, he was a
danger to the community. Second, Martinez argued that the
BIA had to consider alternatives to detention, such as
conditional parole, before denying bond. The panel
disagreed, explaining that the applicable precedent does not
suggest that due process mandates that immigration courts
consider release conditions or conditional parole before
deciding that an alien is a danger to the community.
MARTINEZ V. CLARK 5
COUNSEL
Robert Pauw (argued), Gibbs Houston Pauw, Seattle,
Washington, for Petitioner-Appellant.
Dana M. Camilleri (argued), Trial Attorney; Anthony P.
Nicastro, Assistant Director; Brian M. Boynton, Acting
Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondents-Appellees.
OPINION
BUMATAY, Circuit Judge:
Congress has determined that certain categories of aliens
are subject to mandatory detention during their removal
proceedings. See 8 U.S.C. § 1226(c). The most common
reason for a noncitizen to be placed in mandatory detention
is a criminal history. See Nielsen v. Preap, 139 S. Ct. 954,
960 (2019) (plurality opinion). So aliens with certain
criminal convictions must remain in the government’s
custody without bond throughout their removal proceedings.
Despite this statutory provision, district courts
throughout this circuit have ordered immigration courts to
conduct bond hearings for noncitizens held for prolonged
periods under § 1226(c). The district court directives flow
not from statutory text, but from due process. According to
one such court order, the “prolonged mandatory detention
pending removal proceedings, without a bond hearing,
will—at some point—violate the right to due process.”
Martinez v. Clark, No. 18-CV-01669-RAJ, 2019 WL
5962685, at *1 (W.D. Wash. Nov. 13, 2019) (simplified).
6 MARTINEZ V. CLARK
Whether due process requires a bond hearing for aliens
detained under § 1226(c) is not before us today. And we
take no position on that question.
What is before us today is the scope of federal court
review of those bond determinations. In this case, the district
court ordered that Javier Martinez—a twice-convicted drug
trafficker detained under § 1226(c)—receive a bond hearing
to determine whether he was a danger to the community or a
flight risk. A hearing was held, and an immigration judge
found that clear and convincing evidence showed that he was
such a danger. The Board of Immigration Appeals (“BIA”)
affirmed, and Martinez remained detained.
Martinez then appealed to federal district court to
overturn his detention. Martinez raised three claims:
(1) clear and convincing evidence did not show he is a
danger to the community; (2) the BIA applied the incorrect
burden of proof at his hearing; and (3) the BIA failed to
consider alternatives to detention, such as conditional parole.
The district court asserted jurisdiction over all three claims
and denied habeas relief. That decision was not entirely
appropriate.
Congress has barred courts from reviewing
“discretionary judgment[s]” regarding the detention and
release of aliens in removal proceedings. 8 U.S.C.
§ 1226(e). Federal courts may only review related
“constitutional claims or questions of law.” Singh v. Holder,
638 F.3d 1196, 1202 (9th Cir. 2011). We hold that an
immigration court’s determination that a noncitizen is a
danger to the community is a “discretionary judgment” not
subject to review. We thus vacate the district court’s
judgment regarding Martinez’s first claim and remand with
instructions to dismiss for lack of jurisdiction.
MARTINEZ V. CLARK 7
The district court did, however, have jurisdiction to
review Martinez’s last two claims since they involve
questions of law or constitutional questions. Because they
were correctly denied, we affirm.
I.
Javier Martinez, a native of Costa Rica and citizen of
Nicaragua, entered the United States in 1987 as a conditional
resident. Three years later, he became a lawful permanent
resident of the United States. In 2000, he was convicted of
conspiring to distribute cocaine under 21 U.S.C. §§ 841,
846, and sentenced to 20 months in prison. The next year,
after his release from prison, the Department of Homeland
Security (“DHS”) commenced removal proceedings against
Martinez. An immigration judge later granted him
withholding of removal.
Twelve years after his release from prison, in 2013,
Martinez was once again arrested for trafficking cocaine
under 21 U.S.C. §§ 841, 846. After his arrest, a federal
magistrate judge released Martinez on his own recognizance.
About five months later, Martinez pleaded guilty to the drug
charge. He was released for the three months before
sentencing. At the sentencing hearing, the district court
noted that it was “impressed” with Martinez’s ability to
control himself and to “avoid the pitfalls” while he was “out
on bond.” The district court observed that it would not have
released Martinez (as the magistrate judge did), but that
Martinez did well with the opportunity. Martinez remained
drug-free and complied with all the conditions of his release.
Based on his efforts at rehabilitation, the district court
sentenced Martinez to 60 months in prison. The district
court also allowed Martinez to self-report to prison, and he
did so a month later. While in prison, Martinez earned his
GED, took vocational classes, and attended Bible studies.
8 MARTINEZ V. CLARK
He also participated in a drug-treatment program and
received counseling for his drug addiction.
In early 2018, DHS reopened his removal proceedings
based on his 2013 conviction. After his release from prison
in April 2018, Martinez was taken directly into DHS custody
and held without bond. After about six months, Martinez
received a bond hearing, but the presiding immigration judge
determined that he did not have jurisdiction to release
Martinez because he was subject to mandatory detention
under 8 U.S.C. § 1226(c).
In November 2018, Martinez then filed a federal habeas
petition seeking immediate release or, in the alternative, an
individualized bond hearing before an immigration judge.
The district court ordered that Martinez receive a bond
hearing. Martinez, 2019 WL 5962685, at *1. The district
court reasoned that Martinez’s prolonged mandatory
detention under § 1226(c) violated due process. Id. To
comply with due process, the district court ordered “the
government to show by clear and convincing evidence that
[Martinez] presents a flight risk or a danger to the
community at the time of the bond hearing.” Id.
In November 2019, an immigration judge held a bond
hearing for Martinez and denied him bond. The immigration
judge ruled that the government had met its burden of
showing by clear and convincing evidence that Martinez was
a danger to the community and a flight risk. In making the
dangerousness determination, the immigration judge
evaluated Martinez’s mitigating evidence, such as his
successful release on bond pre-incarceration, the district
court’s statements during sentencing, his efforts at
rehabilitation, his family ties, and his strong community
support. Still, the immigration judge found Martinez’s two
convictions for drug trafficking to be dispositive. The
MARTINEZ V. CLARK 9
immigration judge also determined that conditional parole
was not appropriate for Martinez.
On appeal, the BIA ruled that Martinez was ineligible for
release on bond based on the “totality of the evidence.” The
BIA agreed with the immigration judge that the government
sustained its burden to show that Martinez was a danger to
the community by clear and convincing evidence. In doing
so, the BIA emphasized that it had “long acknowledged the
dangers associated with the sale and distribution of drugs”
and found that Martinez’s repeated drug-trafficking
convictions provided “strong evidence” that he was
dangerous. The BIA also acknowledged Martinez’s
rehabilitation efforts, but it found that his good behavior for
“the approximately 7 years he has been detained in either
prison or DHS custody does not indicate that he will not
revert to his old habits of drug use and trafficking upon his
release.” The BIA did not reach the immigration judge’s
alternative conclusion that Martinez posed a flight risk.
Martinez then brought the instant federal habeas petition
under 28 U.S.C. § 2241, seeking release from DHS
detention. As relevant here, Martinez asserted that the BIA
erred by failing to consider releasing him on conditional
parole and by concluding that the government met its burden
to present clear and convincing evidence of his
dangerousness.
As to the threshold issue of jurisdiction, a magistrate
judge held that the federal court had jurisdiction over
Martinez’s claims. First, the magistrate judge ruled that
Martinez’s conditional parole claim was a question of law
and did not challenge any discretionary determination. Next,
the magistrate judge considered as a “colorable due process
argument” Martinez’s claim that the government failed to
meet its evidentiary burden in denying bond.
10 MARTINEZ V. CLARK
After asserting jurisdiction, the magistrate judge
recommended that the district court deny the habeas petition.
On the conditional parole claim, the magistrate judge
determined that the Ninth Circuit does not require
immigration courts to consider conditions of release in
assessing whether an alien could be released on bond. On
the dangerousness claim, the magistrate judge applied de
novo review and held that the government satisfied its
burden of showing by clear and convincing evidence that
Martinez was a danger to the community. The district court
adopted the magistrate judge’s report and recommendations.
Martinez now appeals. We have jurisdiction over the
appeal under 28 U.S.C. § 1291 and § 2253(a). We review
the denial of a habeas petition de novo, Padilla-Ramirez v.
Bible, 882 F.3d 826, 828 (9th Cir. 2017), any underlying
legal questions de novo, and factual questions for clear error,
Singh, 638 F.3d at 1202–03.
II.
Before reaching the merits of this petition, we first
reconsider the district court’s view that it had jurisdiction to
review all of Martinez’s claims. “If a federal court lacked
jurisdiction to decide an issue before it[,] we may exercise
appellate jurisdiction to correct the error.” Shoner v. Carrier
Corp., 30 F.4th 1144, 1150 (9th Cir. 2022) (simplified). We
conduct that jurisdictional analysis on a claim-by-claim
basis; jurisdiction over one claim does not automatically
mean jurisdiction over all claims. See DaimlerChrysler
Corp. v. Cuno, 547 U.S. 332, 352 (2006).
Martinez raises three questions for review in his habeas
petition: (1) whether the BIA erred in determining that clear
and convincing evidence showed that Martinez is a danger
to the community; (2) whether the BIA applied the correct
MARTINEZ V. CLARK 11
burden of proof; and (3) whether the BIA violated due
process by failing to consider alternatives to detention. We
review each in turn, but first provide context as to the
jurisdictional framework for reviewing bond determinations.
A.
Congress has made it clear that certain immigration
determinations are unreviewable by federal courts.
Congress, for example, has made a “choice to provide
reduced procedural protection” for “adjustment of status”
decisions by “sharply circumscrib[ing] judicial review” of
those decisions. Patel v. Garland, 142 S. Ct. 1614, 1619,
1626 (2022) (referring to the jurisdictional bar under
8 U.S.C. § 1252(a)(2)(B)). We are generally bound by
Congress’s decision to strip our jurisdiction over a particular
matter. See Patchak v. Zinke, 138 S. Ct. 897, 908 (2018)
(plurality opinion) (“The constitutionality of jurisdiction-
stripping statutes . . . is well established.”).
In this case, we confront another jurisdictional wall:
8 U.S.C. § 1226(e). With that section, Congress barred
federal courts from reviewing “discretionary judgment[s]”
regarding the detention of noncitizens under § 1226. Section
1226(a) allows the government to arrest and detain an alien
“pending a decision on whether the alien is to be removed
from the United States.” In general, § 1226(a) gives the
government the “discretion either to detain the alien or to
release him on bond or parole.” Nielsen, 139 S. Ct. at 959.
If an alien objects to the government’s bond determination,
the alien may appeal that decision to an immigration judge.
Hernandez v. Sessions, 872 F.3d 976, 982 (9th Cir. 2017)
(citing 8 C.F.R. §§ 236.1(d), 1003.19(c)). At that stage, the
alien must establish “that he or she does not present a danger
to persons or property, is not a threat to the national security,
and does not pose a risk of flight.” Id. (quoting In re Guerra,
12 MARTINEZ V. CLARK
24 I. & N. Dec. 37, 38 (BIA 2006)). If the alien satisfies the
burden, the immigration judge may release the alien on bond
or subject to other conditions of release. Id. at 983 (citing
8 C.F.R. §§ 236.1(d), 1003.19).
Section 1226(c), on the other hand, requires “mandatory
detention” for certain categories of “criminal aliens.”
Nielsen, 139 S. Ct. at 960 (citing 8 U.S.C.
§ 1226(c)(1)(A)−(D)). A noncitizen like Martinez, who was
convicted of two drug-trafficking offenses, qualifies for
mandatory detention under § 1226(c). See 8 U.S.C.
§§ 1226(c)(1)(A), 1182(a)(2). That person is then held in
custody without a bond hearing. According to the Supreme
Court, “Congress adopted this provision against a backdrop
of wholesale failure by the INS to deal with increasing rates
of criminal activity by aliens.” Demore v. Kim, 538 U.S.
510, 518 (2003).
Section 1226 ends with a broad jurisdiction-stripping
provision. It reads:
The Attorney General’s discretionary
judgment regarding the application of
[§ 1226] shall not be subject to review. No
court may set aside any action or decision by
the Attorney General under this section
regarding the detention or release of any alien
or the grant, revocation, or denial of bond or
parole.
8 U.S.C. § 1226(e). Section 1226(e) means that an alien may
not use the federal courts to “challeng[e] a ‘discretionary
judgment’ by the Attorney General or a ‘decision’ that the
Attorney General has made regarding his detention or
release.” Jennings v. Rodriguez, 138 S. Ct. 830, 841 (2018)
(plurality opinion) (simplified). So importantly, federal
MARTINEZ V. CLARK 13
courts are barred from reviewing “discretionary decisions
about the application of § 1226 to particular cases.” Nielsen,
139 S. Ct. at 962 (simplified); see also Singh, 638 F.3d
at 1202 (holding that a federal court may not second-guess
the “executive’s exercise of discretion” when it comes to the
detention or release of noncitizens). And much like the
jurisdictional bar in Patel, this provision “reflects Congress’
choice to provide reduced procedural protection” for
discretionary judgments regarding the detention of aliens.
See 142 S. Ct. at 1626.
But while the provision sweeps broadly, it’s also true that
§ 1226(e) does not limit habeas jurisdiction over
“constitutional claims or questions of law.” Id. That’s
because § 1226(e) does not strip federal courts of their
“traditional habeas jurisdiction, bar constitutional
challenge[s],” or preclude attacks to the “statutory
framework” permitting detention without bail. Id. As for
“questions of law,” we may review the “application of a
legal standard to undisputed or established facts.” Guerrero-
Lasprilla v. Barr, 140 S. Ct. 1062, 1068 (2020). Thus,
challenges to the “discretionary process”—rather than to the
“discretionary judgment[s]” themselves—are reviewable in
federal court. Singh, 638 F.3d at 1202.
So federal courts are without jurisdiction to review a
“discretionary judgment regarding” the decision to hold an
alien in custody. 8 U.S.C. § 1226(e). In this context,
“judgment” means “any authoritative decision.” Patel,
142 S. Ct. at 1621 (citing Webster’s Third New International
Dictionary 1223 (1993) and 8 Oxford English Dictionary
294 (2d ed. 1989)). The use of “regarding” in the provision
has “a broadening effect, ensuring that the scope of a
provision covers not only its subject but also matters relating
14 MARTINEZ V. CLARK
to that subject.” Id., at 1622 (quoting Lamar, Archer &
Cofrin, LLP v. Appling, 138 S. Ct. 1752, 1760 (2018)).
The touchstone of a “discretionary” determination is that
it’s “subjective.” Romero-Torres v. Ashcroft, 327 F.3d 887,
891 (9th Cir. 2003). We have said it “is almost necessarily
a subjective question that depends on the identity and the
value judgment of the person or entity examining the issue.”
Mendez-Castro v. Mukasey, 552 F.3d 975, 980 (9th Cir.
2009) (simplified). The determination is “value-laden” and
“reflect[s] the decision maker’s beliefs in and assessment of
worth and principle.” See Ramadan v. Gonzales, 479 F.3d
646, 656 (9th Cir. 2007) (per curiam). A “prototypical”
example is one that is “fact-intensive” and requires “equities
[to] be weighed.” Torres-Valdivias v. Lynch, 786 F.3d 1147,
1153 (9th Cir. 2015). In contrast, “determinations that
require application of law to factual determinations are
nondiscretionary.” Zerezghi v. U.S. Citizenship & Immigr.
Servs., 955 F.3d 802, 808 (9th Cir. 2020) (emphasis added)
(simplified); see also id. (holding that the government “must
approve an I-130 visa petition if the facts stated in the
application are true and the beneficiary is an immediate
relative”).
Under this rubric, we have held that several types of
immigration determinations are “discretionary”:
• Whether a crime is “violent or dangerous.”
Torres-Valdivias, 786 F.3d at 1152−53.
• Whether a crime is “particularly serious.” Arbid
v. Holder, 700 F.3d 379, 383 (9th Cir. 2012) (per
curiam).
MARTINEZ V. CLARK 15
• Whether an “exceptional and extremely unusual
hardship” has been met. Mendez-Castro, 552
F.3d at 980.
• Whether an “extreme hardship” has been met.
Prapavat v. INS, 662 F.2d 561, 562 (9th Cir.
1981) (per curiam).
• Whether an alien has “good moral character.”
Ramadan, 479 F.3d at 656.
We have also held that matters of governmental grace, such
as adjustment of status and cancellation of removal relief are
discretionary judgments not subject to review. Bazua-Cota
v. Gonzales, 466 F.3d 747, 748–49 (9th Cir. 2006) (per
curiam); Romero-Torres, 327 F.3d at 890; accord Patel,
142 S. Ct. at 1619.
With this background, we turn to Martinez’s claims. We
apply § 1226(e)’s jurisdictional framework here. Although
the district court ordered that Martinez receive a bond
hearing to comply with due process, the discretionary
judgments made at the hearing “relat[e]” to mandatory
detention under § 1226(c). See Patel, 142 S. Ct. at 1626.
We start our analysis with Martinez’s challenge to the
dangerousness determination that kept him detained under
that subsection.
B.
We hold that the determination of whether a particular
noncitizen poses a danger to the community is a
discretionary determination, which a federal court may not
review. To begin, what does it mean to be a “danger to the
community”? We are aware of no statutory or regulatory
definition. Although we’ve approved of certain factors in
16 MARTINEZ V. CLARK
considering the question, see Singh, 638 F.3d at 1206 & n.5,
neither our court nor any other circuit court appears to have
defined dangerousness. In Singh, we said that an
immigration judge should look to the factors set out in
Matter of Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006). Id. 1
That agency opinion explains that immigration judges have
“broad discretion” in considering and weighing those
factors. Guerra, 24 I. & N. Dec. at 40. And while we’ve
advised that an alien’s criminal history is the “most
pertinent” factor, we have not said what combination of facts
is “conclusive[]” to establish dangerousness. Singh,
638 F.3d at 1206. So the only guidance then is an agency-
created multi-factorial analysis with no clear, uniform
standard for what crosses the line into dangerousness. We
thus are left without “standards sufficient to permit
meaningful judicial review.” Husyev v. Mukasey, 528 F.3d
1172, 1181 (9th Cir. 2008).
So like “dangerous crime,” “particularly serious crime,”
“exceptional and extremely unusual hardship,” “extreme
hardship,” and “good moral character,” we hold that “danger
to the community” fits comfortably within the category of
discretionary determinations. Dangerousness is a “fact-
intensive” inquiry that requires the “equities [to] be
1
The nine factors are: “(1) whether the alien has a fixed address in
the United States; (2) the alien’s length of residence in the United States;
(3) the alien’s family ties in the United States, and whether they may
entitle the alien to reside permanently in the United States in the future;
(4) the alien’s employment history; (5) the alien’s record of appearance
in court; (6) the alien’s criminal record, including the extensiveness of
criminal activity, the recency of such activity, and the seriousness of the
offenses; (7) the alien’s history of immigration violations; (8) any
attempts by the alien to flee prosecution or otherwise escape from
authorities; and (9) the alien’s manner of entry to the United States.”
Guerra, 24 I. & N. Dec., at 40.
MARTINEZ V. CLARK 17
weighed.” Torres-Valdivias, 786 F.3d at 1153. And like the
rest of the lot, it is a “subjective question that depends on the
identity and the value judgment of the person or entity
examining the issue.” Mendez-Castro, 552 F.3d at 980(simplified). What one immigration judge may find
indicative of a propensity for danger, another may see as
progress toward redemption. This is exactly the type of
discretionary judgment that § 1226(e) insulates from judicial
review.
Take this case for example. Martinez is a twice-
convicted drug trafficker, but has shown some promise by
succeeding on pretrial release and making significant
progress toward rehabilitation. Reasonable minds can differ
on whether clear and convincing evidence establishes that he
is a danger to the community. The decision comes down to
the decisionmaker’s “beliefs in and assessment of worth and
principle.” Ramadan, 479 F.3d at 656. As the dangerousness
determination is subjective and value-laden, it is a
discretionary judgment that federal courts are precluded
from reviewing.
In contrast, the district court asserted jurisdiction over
the claim as a constitutional question. In the district court’s
view, if Martinez was correct that the government failed to
meet its evidentiary burden to prove dangerousness, then the
BIA’s bond determination was “constitutionally flawed.”
To support jurisdiction, the district court relied on
Hernandez, 872 F.3d at 988. But that case does not support
a finding of jurisdiction here. In Hernandez, we asserted
jurisdiction over a class action brought by noncitizens
challenging the government’s “policy” of ignoring their
financial circumstances or non-monetary alternative
conditions of release in setting bond amounts. Id. at 983.
We held that the plaintiffs’ claims were cognizable on
18 MARTINEZ V. CLARK
habeas review because they were not attacking “the amount
of their initial bonds,” but rather claiming that the
“discretionary process itself was constitutionally flawed.”
Id. at 988 (simplified). Hernandez’s challenge to the
“policy” and “process” over bond hearings is a far cry from
Martinez’s challenge to the individualized finding that he is
“dangerous.” The district court thus erred in asserting
jurisdiction over the dangerousness determination.
Martinez contends that the district court’s assertion of
jurisdiction was nonetheless proper because the facts of his
case are settled and courts can always review the
“application of a legal standard to undisputed or established
facts,” like in Guerrero-Lasprilla. He asks us to adopt a de
novo standard to review whether clear and convincing
evidence proves he is a danger to the community. But the
key point in Guerrero-Lasprilla is that courts are not
precluded from reviewing the application of legal standards
to settled facts. 140 S. Ct. at 1068. Here, we have no “legal
standard” that, if met, requires a certain outcome. Cf.
Zerezghi, 955 F.3d at 808 (requiring the issuance of a I-130
visa if certain facts are present). We only have malleable
guidance that steers the immigration judge’s subjective
assessment of the facts of a particular case. Federal courts
thus lack jurisdiction to review the “application of such [a]
standard to the facts of [this] case, be they disputed or
otherwise.” Mendez-Castro, 552 F.3d at 981.
Martinez also tries to reframe the question as an
evaluation of whether the undisputed facts satisfy the
constitutionally compelled clear-and-convincing evidentiary
standard for dangerousness. But under any framing, this is
an attempt to reweigh the evidence supporting a purely
discretionary determination. Indeed, Martinez’s argument
boils down to the claim that due process forbids finding him
MARTINEZ V. CLARK 19
dangerous, even considering his two drug-trafficking
convictions, because he received pretrial release, engaged in
rehabilitation efforts, and had community support. Thus, he
argues, it’s impossible to find him dangerous by the
constitutionally compelled clear-and-convincing-evidence
standard. But due process does not command that evidence
be weighed a certain way. Simply put, we will not allow
Martinez to circumvent § 1226(e)’s jurisdictional bar by
“cloaking an abuse of discretion argument in constitutional
garb.” Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir.
2001).
We thus hold that the district court lacked jurisdiction to
review the BIA’s determination that Martinez posed a
danger to the community, even if it ultimately agreed with
the BIA’s conclusion. And because the district court lacked
jurisdiction, we cannot evaluate the merits of Martinez’s
claim.
C.
After jettisoning Martinez’s dangerousness claim, we are
left to determine whether the district court had jurisdiction
to review his two remaining claims: that the BIA erred by
applying the wrong burden of proof and that due process
required the BIA to consider alternatives to detention, such
as conditional parole. Federal courts retain jurisdiction to
review these claims because they are challenges to the legal
standards or statutory framework used in bond
determinations and are thus “constitutional claims or
questions of law.” See Singh, 638 F.3d at 1202; id. at
1202−03 (asserting jurisdiction over whether the
immigration judge applied the correct burden of proof);
Mendez-Castro, 552 F.3d at 979 (retaining jurisdiction over
“whether an IJ failed to apply a controlling standard
governing a discretionary determination”); Jennings, 138 S.
20 MARTINEZ V. CLARK
Ct. at 841 (recognizing jurisdiction over challenges to the
“statutory framework”).
III.
Turning now to the merits of Martinez’s remaining
claims, we agree with the district court that they must be
denied.
A.
Martinez contends that the BIA failed to apply the
correct burden of proof and review all the evidence in the
record in evaluating whether the government proved his
dangerousness with clear and convincing evidence. He also
alleges the BIA impermissibly shifted the burden of proof to
him. We disagree.
Generally, in the absence of any red flags, we take the
BIA at its word. For example, “[w]hen nothing in the record
or the BIA’s decision indicates a failure to consider all the
evidence,” we will rely on the BIA’s statement that it
properly assessed the entire record. Cole v. Holder, 659 F.3d
762, 771 (9th Cir. 2011). We do not require the BIA to
“discuss each piece of evidence submitted.” Id. Similarly,
we accept that the BIA “applied the correct legal standard”
if the BIA “expressly cited and applied [the relevant
caselaw] in rendering its decision.” See Mendez-Castro,
552 F.3d at 980. But when there is an indication that
something is amiss, like if the BIA “misstat[es] the record”
or “fail[s] to mention highly probative or potentially
dispositive evidence,” we do not credit its use of a “catchall
phrase” to the contrary. Cole, 659 F.3d at 771−72.
There are no such red flags here. At the outset of its
decision, the BIA properly noted that the government bore
MARTINEZ V. CLARK 21
the burden to establish by clear and convincing evidence that
Martinez is a danger to the community. It then reviewed the
record, including Martinez’s drug trafficking convictions,
and concluded there was “strong evidence” of his
dangerousness. It credited Martinez’s significant
rehabilitation efforts, such as keeping a clean record while
on pretrial release and in prison. But it concluded, under
“the totality of the evidence,” that the serious nature of
Martinez’s convictions and his history of reoffending, even
after several years of sobriety, rendered him a danger to the
community. Contrary to Martinez’s claim, the BIA
explicitly noted the evidence of his release on his own
recognizance and his self-report to prison during his 2013
criminal proceedings. Thus, we conclude that the BIA
applied the correct burden of proof in this case.
B.
Martinez finally argues that the BIA had to consider
alternatives to detention, such as conditional parole, before
denying him bond. Martinez suggests that the BIA must
import consideration of conditions of release from the
criminal pretrial release context, such as GPS monitoring,
drug testing, and counseling, to the immigration custody
context. See 18 U.S.C. § 3142(c). In Martinez’s view,
failing to do so violates due process or constitutes legal error.
We reject Martinez’s argument.
Due process does not require immigration courts to
consider conditional release when determining whether to
continue to detain an alien under § 1226(c) as a danger to the
community. In Singh, we addressed the due process
requirements for bond hearings for aliens subject to
prolonged detention. 638 F.3d at 1203−10. We held that
due process requires immigration courts to make
contemporaneous records of bond hearings, id. at 1200, and
22 MARTINEZ V. CLARK
most significantly, that the government prove dangerousness
or risk of flight by clear and convincing evidence, id. at
1200, 1205. We then noted that these “greater procedural
protections” are enough to safeguard an alien’s due process
rights and “justify [the] denial of bond.” Id. at 1207.
Nowhere in Singh did we suggest that due process also
mandates that immigration courts consider release
conditions or conditional parole before deciding that an alien
is a danger to the community. Singh offers the high-water
mark of procedural protections required by due process, and
we see no reason to extend those protections any further
here.
Relying on Hernandez, Martinez argues that conditions
of release must be considered to ensure that detention is
reasonably related to the government’s interest in protecting
the public. That case is inapposite. In Hernandez, the
plaintiff noncitizens complained that neither their financial
circumstances nor alternative release conditions were
considered before their bond decisions were made, even
though they were determined not to be dangerous or flight
risks. 872 F.3d at 984−85, 990−91. While the government
had a legitimate interest in protecting the public and ensuring
the appearance of noncitizens in immigration proceedings,
we held that detaining an indigent alien without
consideration of financial circumstances and alternative
release conditions was “unlikely to result” in a bond
determination “reasonably related to the government’s
legitimate interests.” Id. at 991. The analysis is different
here. Martinez was found to be a danger to the community
and so his detention is clearly “reasonably related” to the
government’s interest in protecting the public. See id.
MARTINEZ V. CLARK 23
IV.
For these reasons, we vacate the district court’s judgment
regarding Martinez’s challenge to the dangerousness
determination and remand with instructions to dismiss; and
we affirm the denial of the petition on all other claims.
AFFIRMED in part and VACATED and
REMANDED in part with instructions to dismiss.