CA9 on Bond: Two Cases (Apr. 7, 2020)

Aleman Gonzalez v. Barr

"In Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) (Diouf II), a three-judge panel of our court applied the canon of constitutional avoidance to construe § 1231(a)(6) as requiring an individualized bond hearing before an IJ for an alien detained for six months or longer when the alien’s release or removal is not imminent. ... We hold that Plaintiffs are likely to succeed on the merits of their § 1231(a)(6) statutory claim. Although we recognize some tension between Diouf II and Jennings, we cannot conclude that the decisions are so fundamentally inconsistent that we can no longer apply Diouf II without running afoul of Jennings. We thus conclude that we remain bound by Diouf II. For that reason, we conclude further that the district court did not err in relying on Diouf II’s construction of § 1231(a)(6) to require a bond hearing before an IJ after six months of detention for an alien whose release or removal is not imminent. Because Jennings did not invalidate our constitutional due process holding in Singh, the district court also properly required the Government to bear a clear and convincing burden of proof at such a bond hearing to justify an alien’s continued detention. Our conclusion that Diouf II remains controlling compels us to reject the Government’s remaining challenges that effectively seek to relitigate Diouf II. We conclude further that the preliminary injunction complies with a proper reading of Clark. Based on these determinations, we affirm the district court’s preliminary injunction in full."

Flores Tejada v. Godfrey

"This appeal presents the same core question we decide today in Aleman Gonzalez v. Barr, No. 18-16465: whether our construction of § 1231(a)(6) in Diouf II survives the Supreme Court’s decision in Jennings v. Rodriguez, 138 S. Ct. 830 (2018). Our answer remains the same here. We affirm the district court’s judgment and permanent injunction insofar as they conform to our construction of § 1231(a)(6) in Diouf II. We also affirm insofar as the judgment and permanent injunction require the Government to the satisfy the constitutional burden of proof we identified in Singh. However, unlike Aleman Gonzalez, this appeal presents us with a different question regarding our construction of § 1231(a)(6). The district court ordered the Government to provide class members with additional bond hearings every six months. We hold that the court erroneously imposed this requirement as a statutory matter because we did not construe § 1231(a)(6) as requiring this in Diouf II, nor do we find any support for this requirement. We therefore partially reverse and vacate the judgment and permanent injunction, and remand for further proceedings."