FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTEBAN ALEMAN GONZALEZ; No. 18-16465
EDUARDO GUTIERREZ SANCHEZ,
Plaintiffs-Appellees, D.C. No.
3:18-cv-01869-
v. JSC
WILLIAM P. BARR, Attorney General;
CHAD WOLF, Acting Secretary, OPINION
Department of Homeland Security;
JAMES MCHENRY, Director,
Executive Office for Immigration
Review, Department of Justice;
CHRISTOPHER A. SANTORO, Acting
Chief Immigration Judge, Executive
Office for Immigration Review,
Department of Justice; DAVID W.
JENNINGS, Field Office Director for
the San Francisco Field Office of
U.S. Immigration and Customs
Enforcement, Department of
Homeland Security; DAVID O.
LIVINGSTON, Sheriff, Contra Costa
County; KRISTI BUTTERFIELD,
Facility Commander, West County
2 ALEMAN GONZALEZ V. BARR
Detention Facility, Contra Costa
County, *
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of California
Jacqueline Scott Corley, Magistrate Judge, Presiding
Argued and Submitted November 13, 2019
Pasadena, California
Filed April 7, 2020
Before: FERDINAND F. FERNANDEZ, MILAN D.
SMITH, JR., and ERIC D. MILLER, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.;
Dissent by Judge Fernandez
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Chad
Wolf is automatically substituted as the Acting Secretary of the U.S.
Department of Homeland Security and Christopher A. Santoro is
automatically substituted as the Acting Chief Immigration Judge of the
Executive Office for Immigration Review.
ALEMAN GONZALEZ V. BARR 3
SUMMARY **
Immigration
In an action where Plaintiffs—who represent a certified
class of aliens who are subject to final orders of removal and
are detained pursuant to 8 U.S.C. § 1231(a)(6) within the
Ninth Circuit—challenged their prolonged detention without
an individualized bond hearing, the panel affirmed the
district court’s preliminary injunction requiring the
Government to provide each class member detained for six
months or longer with a bond hearing before an immigration
judge where the burden is on the Government to justify
continued detention.
Class members are detained under 8 U.S.C.
§ 1231(a)(6), which authorizes the Government to detain
aliens subject to final orders of removal, or reinstated final
orders of removal. The class includes only § 1231(a)(6)
detainees who have “live claims” of defense against removal
before an IJ, the Board of Immigration Appeals, or a circuit
court of appeals, such as withholding-only claims, and the
class excludes aliens whose release or removal is imminent,
as well as aliens who are members of certified classes in
other litigations pending in the Ninth Circuit.
In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme
Court applied the canon of constitutional avoidance to
§ 1231(a)(6) and held that six months was a presumptively
reasonable length of detention and that, after that period,
once an alien provides good reason to believe there is no
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 ALEMAN GONZALEZ V. BARR
significant likelihood of removal in the reasonably
foreseeable future, the Government must provide evidence
to rebut that showing. In Diouf v. Napolitano, 634 F.3d 1081
(9th Cir. 2011) (Diouf II), a three-judge panel of this court
applied the canon 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.
In this case, the district court issued an injunction
requiring the Government to provide class members with
hearings after six months of detention, as required by Diouf
II. Following this court’s decision in Singh v. Holder, 638
F.3d 1196 (9th Cir. 2011), which held that due process
requires the government to bear the burden of proof in bond
hearings, the injunction also requires the Government to bear
the burden to justify an alien’s continued detention in the
required hearings. On appeal, the Government asserted only
that the district court erred by concluding that Plaintiffs are
likely to succeed on the merits of their statutory claims; it
did not challenge the district court’s decision on the other
preliminary injunction factors.
The panel held that Plaintiffs are likely to succeed on the
merits of their claim that § 1231(a)(6) requires the
Government to provide class members with an
individualized bond hearing in accordance with Diouf II. In
so holding, the panel concluded that Diouf II is not clearly
irreconcilable with Jennings v. Rodriguez, 138 S. Ct. 830
(2018), in which the Supreme Court rejected this court’s
application of the canon of constitutional avoidance to
construe different immigration detention statutes. In
Jennings, the Supreme Court explained that the canon comes
into play only when a statute is found to be susceptible to
more than one construction, and criticized this court for
ALEMAN GONZALEZ V. BARR 5
adopting implausible constructions 8 U.S.C. §§ 1225(b),
1226(a), and 1226(c) to hold that detained aliens have a
statutory right to periodic bond hearings at six months under
those provisions. The panel recognized some tension
between Diouf II and Jennings but concluded that the
decisions are not so fundamentally inconsistent that the court
could no longer apply Diouf II in light of the high standard
for showing clear irreconcilability. The panel underscored
that Jennings repeatedly limited its analysis to the statutory
provisions at issue there, and Jennings’s reasoning showed
that there are material textual differences between
§ 1231(a)(6) and the other immigration detention statutes.
Further, the panel concluded that because Jennings did not
invalidate this court’s constitutional due process holding in
Singh, the district court properly required the Government to
bear a clear and convincing burden of proof at such bond
hearings.
Rejecting the Government’s argument that Diouf II’s
mode of applying the canon contravened Jennings, the panel
explained that Diouf II and Jennings relied on the same
principles governing application of the canon. The panel
also rejected the Government’s argument that Diouf II
improperly “inserted” a bond hearing requirement in
contravention of Jennings, reasoning that Diouf II relied on
earlier circuit precedent that construed § 1231(a)(6) to
permit release on bond without reliance on the canon. The
panel also rejected the Government’s argument that the
Supreme Court’s treatment of § 1226(a) in Jennings
undercut Diouf II, explaining that the Court rejected the
imposition of a six-month bond hearing requirement for
§ 1226(a) but that the Court did not find that the
government’s regulations providing for an initial bond
hearing for § 1226(a) detainees contravened the statutory
text. The panel further reasoned that, unlike any of the
6 ALEMAN GONZALEZ V. BARR
detention statutes at issue in Jennings, Zadvydas and
Jennings’s discussion of that decision support the conclusion
that Diouf II is not clearly irreconcilable with Jennings. The
panel found additional support for the conclusion that Diouf
II is not clearly irreconcilable with Jennings in the Third
Circuit’s decision in Guerrero-Sanchez v. Warden York
County Prison, 905 F.3d 208 (3d Cir. 2018), which expressly
adopted Diouf II’s construction of § 1231(a)(6) in the wake
of Jennings.
Finally, the panel rejected the Government’s contention
that the Supreme Court already applied the canon to
§ 1231(a)(6) to prohibit indefinite detention in Zadvydas,
and therefore, the district court could not “re-apply” the
canon. Likewise, the panel rejected the Government’s
argument that Clark v. Martinez, 543 U.S. 371 (2005), stands
for the proposition that courts can apply only Zadvydas’s
construction of § 1231(a)(6) in all cases, and therefore, the
district court erroneously departed from the framework
Zadvydas established for federal habeas courts.
Dissenting, Judge Fernandez stated that Jennings is
clearly irreconcilable with Diouf II’s reasoning, writing that
the court in Diouf II did not identify a textual ambiguity in
the statute regarding a bond hearing requirement and did not
identify any plausible basis in the statutory text for requiring
such a hearing. Judge Fernandez also wrote that Diouf II’s
reasoning that § 1231(a)(6) detainees were entitled to
individualized bond hearings simply because this court had
conjured such hearings for § 1226(a) detainees is clearly
irreconcilable with Jennings.
ALEMAN GONZALEZ V. BARR 7
COUNSEL
Matthew P. Seamon (argued), Cara E. Alsterberg, and Mary
L. Larakers, Trial Attorneys; T. Monique Peoples, Senior
Litigation Counsel; Elianis N. Perez, Assistant Director;
William C. Peachey, Director; Joseph H. Hunt, Assistant
Attorney General; Office of Immigration Litigation, United
States Department of Justice, Washington, D.C.; for
Defendants-Appellants.
Michael Kaufman (argued), American Civil Liberties Union
Foundation of Southern California, Los Angeles, California;
Alison Pennington, Lisa Knox, and Jesse Newmark, Centro
Legal de la Raza, Oakland, California; Marc Van Der Hout,
Judah Lakin, and Amalia Wille, Van Der Hout LLP, San
Francisco, California; Matthew H. Green, Law Offices of
Matthew H. Green, Tucson, Arizona; Vasudha Talla,
American Civil Liberties Union Foundation of Northern
California, San Francisco, California; Bardis Vakili,
American Civil Liberties Union Foundation of San Diego
and Imperial Counties, San Diego, California; for Plaintiffs-
Appellees.
8 ALEMAN GONZALEZ V. BARR
OPINION
M. SMITH, Circuit Judge:
Esteban Aleman Gonzalez and Eduardo Gutierrez
Sanchez (Plaintiffs) represent a certified class of individuals
who are subject to final removal orders and are detained
pursuant to 8 U.S.C. § 1231(a)(6), within our court’s
jurisdiction for six months or more, and who have been or
will be denied an individualized bond hearing before an
immigration judge (IJ).
Section 1231(a)(6) authorizes Defendants-Appellants
(hereinafter, the Government 1) to detain aliens subject to
final removal orders, or reinstated final removal orders. 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. Id. at 1086, 1091–92 &
n.13. In this case, Plaintiffs sought a preliminary injunction
requiring the Government to provide class members with an
1
We use the term “the Government” to refer collectively to the
following Defendants-Respondents who Plaintiffs sued in their official
capacities, including as substituted: (1) William P. Barr, United States
Attorney General, (2) Chad Wolf, Acting Secretary of the U.S.
Department of Homeland Security, (3) James McHenry, Director of the
Executive Office for Immigration Review (EOIR), (4) Christopher A.
Santoro, Acting Chief Immigration Judge, EOIR, (5) David W. Jennings,
Field Office Director for the San Francisco Field Office of U.S.
Immigration and Customs Enforcement (ICE), (6) David O. Livingston,
Contra Costa County Sheriff, and (7) Kristi Butterfield, Facility
Commander, West County Detention Facility, Contra Costa County.
Our use of the uncapitalized term “the government” should not be
construed as a reference to the Defendants-Respondents.
ALEMAN GONZALEZ V. BARR 9
individualized bond hearing in accordance with Diouf II.
Relying on our court’s decision in Singh v. Holder, 638 F.3d
1196 (9th Cir. 2011), Plaintiffs also sought for the
Government to bear the burden of proof at such a hearing.
Concluding that it remained bound by Diouf II, the district
court granted the preliminary injunction. The Government
appeals, urging us to reverse and vacate.
We must decide whether Plaintiffs are likely to succeed
on the merits of their claim that § 1231(a)(6) requires the
Government to provide class members with an
individualized bond hearing. As it argued unsuccessfully to
the district court, the Government principally argues that
Diouf II is clearly irreconcilable with the Supreme Court’s
decision in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), a
decision that rejected our court’s application of the canon of
constitutional avoidance to construe different immigration
detention statutes. Despite the district court’s reliance on our
decision in Diouf II, the Government further argues that the
district court impermissibly “re-applied” the canon to
§ 1231(a)(6) to grant the preliminary injunction. According
to the Government, Clark v. Martinez, 543 U.S. 371 (2005),
establishes that the Court’s construction of § 1231(a)(6) in
Zadvydas v. Davis, 533 U.S. 678 (2001), is the single
permissible application of the canon to the provision.
The threshold issue we must resolve is whether Diouf II
is clearly irreconcilable with Jennings. As a three-judge
panel, we are bound by the prior decision of another three-
judge panel. Miller v. Gammie, 335 F.3d 889, 893, 899–900
(9th Cir. 2003) (en banc). This rule gives way when, but
only when, the earlier decision is clearly irreconcilable with
the holding or reasoning of intervening authority from our
court sitting en banc or the Supreme Court. Id. at 893, 899–
900. “The ‘clearly irreconcilable’ requirement is ‘a high
10 ALEMAN GONZALEZ V. BARR
standard.’” United States v. Robertson, 875 F.3d 1281, 1291
(9th Cir. 2017) (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.” FTC v. Consumer Def., LLC, 926 F.3d
1208, 1213 (9th Cir. 2019) (emphasis added).
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.
FACTUAL AND PROCEDURAL BACKGROUND
I. Statutory Framework
Various provisions of the Immigration and Nationality
Act (INA) authorize the government to detain noncitizens
during immigration proceedings. See 8 U.S.C. §§ 1225(b),
ALEMAN GONZALEZ V. BARR 11
1226(a), 1226(c), and 1231(a). These statutes are different
textually and in their application. “[T]hese statutes apply at
different stages of an alien’s detention.” Diouf v. Mukasey,
542 F.3d 1222, 1228 (9th Cir. 2008) (Diouf I). “Where an
alien falls 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, 1057 (9th Cir. 2008).
Section 1225(b)(1) and (b)(2) authorize the government
“to detain certain aliens seeking admission into the
country[.]” Jennings, 138 S. Ct. at 838. Pursuant to
§§ 1226(a) and (c), the government has the authority to
detain “aliens already in the country pending the outcome of
removal proceedings.” Id. Section 1231(a), the detention
provision at issue in this case, “authorizes the detention of
aliens who have already been ordered removed from the
country.” Id. at 843.
Pursuant to § 1231(a), the Attorney General “shall
remove the alien from the United States within a period of
90 days” when an alien is ordered removed. 8 U.S.C.
§ 1231(a)(1)(A). “During the removal period, the Attorney
General shall detain the alien.” 8 U.S.C. § 1231(a)(2). “If
the alien does not leave or is not removed during the removal
period, the alien . . . shall be subject to supervision under
regulations” set by the Attorney General pending removal.
Id. § 1231(a)(3). Section 1231(a)(6) further provides that
“certain categories of aliens who have been ordered
removed, namely, inadmissible aliens, criminal aliens, aliens
who have violated their nonimmigrant status conditions, and
aliens removable for certain national security or foreign
relations reasons, as well as any alien ‘who has been
determined by the Attorney General to be a risk to the
12 ALEMAN GONZALEZ V. BARR
community or unlikely to comply with the order of
removal,’” Zadvydas, 533 U.S. at 688, “may be detained
beyond the removal period and, if released, shall be subject
to the terms of supervision in paragraph (3),” 8 U.S.C.
§ 1231(a)(6) (emphasis added).
In this circuit, detention pursuant to § 1231(a)(6)
“encompasses aliens . . . whose collateral challenge to [a]
removal order (or a motion to reopen) is pending in the court
of appeals, as well as to aliens who have exhausted all direct
and collateral review of their removal orders but who, for
one reason or another, have not yet been removed from the
United States.” Diouf II, 634 F.3d 1085; see also Diouf I,
542 F.3d at 1230 (explaining that the removal period in
§ 1231(a)(1) will commence even if a stay of removal is
entered while a federal court reviews an alien’s habeas
petition pursuant to 28 U.S.C. § 2241 or considers a petition
for review of a denial by the Board of Immigration Appeals
of an alien’s motion to reopen).
The INA also authorizes the government to reinstate a
prior removal order against an alien who the government
believes has unlawfully reentered the United States, with the
order “reinstated from its original date.” 8 U.S.C.
§ 1231(a)(5). Aliens with reinstated removal orders may
pursue limited forms of relief from removal, including
withholding of removal and protection pursuant to the
Convention Against Torture. Andrade-Garcia v. Lynch,
828 F.3d 829, 831 (9th Cir. 2016). In this circuit, aliens with
reinstated removal orders, including those who pursue these
limited forms of relief, are treated as detained pursuant to
§ 1231(a)(6). Padilla-Ramirez v. Bible, 862 F.3d 881, 884–
87 (9th Cir. 2017), amended by, 882 F.3d 826, 830–33 (9th
Cir. 2018).
ALEMAN GONZALEZ V. BARR 13
II. The Proceedings in this Case
Plaintiffs Aleman Gonzalez and Gutierrez Sanchez are
natives and citizens of Mexico. The Government reinstated
prior removal orders against them in 2017 but placed each in
withholding-only removal proceedings after asylum officers
determined that each has a reasonable fear of persecution or
torture in Mexico. Both Plaintiffs requested a bond hearing
before an IJ after 180 days in detention. Different IJs,
however, denied the requests by reasoning that Jennings
effectively overruled Diouf II and thus deprived the IJs of
jurisdiction to conduct the bond hearing Diouf II would
require. Plaintiffs filed the complaint and petition for a writ
of habeas corpus on behalf of a putative class of similarly
situated individuals detained in our court’s jurisdiction.
In their complaint-petition, Plaintiffs claim that the bond
hearing denials violate the INA, the Administrative
Procedure Act, and the U.S. Constitution’s Fifth
Amendment Due Process Clause. Plaintiffs rely on Diouf II
to allege that Defendants have denied them bond hearings
“[d]espite clear Ninth Circuit precedent establishing the
right to a bond hearing for Plaintiffs upon their detention
becoming prolonged” as aliens detained pursuant to
§ 1231(a)(6). Plaintiffs further allege that Singh requires the
Government to bear a clear and convincing evidentiary
burden of proof at such a bond hearing. Alternatively,
Plaintiffs claim that constitutional due process requires these
protections.
Plaintiffs moved for class certification on their statutory
and constitutional claims, and a preliminary injunction. The
district court certified a class of § 1231(a)(6) detainees in the
14 ALEMAN GONZALEZ V. BARR
Ninth Circuit for the statutory claims only. 2 The court also
granted the preliminary injunction, concluding that all
preliminary injunction factors weighed in Plaintiffs’ favor.
The court enjoined the Government from “detaining
Plaintiffs and the class members pursuant to [§] 1231(a)(6)
for more than 180 days without providing each a bond
hearing before an IJ as required by Diouf II.” At the
Government’s request, the district court subsequently
clarified that the certified class includes only individuals
detained pursuant to § 1231(a)(6) who have “live claims”
before an immigration court, the BIA, or a circuit court of
appeals, which means defenses against their removal from
the United States. The court further clarified that, pursuant
to Diouf II, the preliminary injunction does not require a
bond hearing for an alien whose release or removal is
imminent. Diouf II, 634 F.3d at 1092 n.13. Subject to these
clarifications, the Government timely appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over an appeal from the grant of a
preliminary injunction pursuant to 28 U.S.C. § 1292(a)(1).
We review the grant of a preliminary injunction motion for
an abuse of discretion. Adidas Am., Inc. v. Skechers USA,
Inc., 890 F.3d 747, 753 (9th Cir. 2018). “[A] district court
abuses its discretion when it makes an error of law.”
Cuviello v. City of Vallejo, 944 F.3d 816, 826 (9th Cir. 2019)
(citation omitted).
2
Plaintiffs’ class certification motion excluded aliens detained
pursuant to § 1231(a)(6) who are members of certified classes in
litigations pending in the Central District of California and the Western
District of Washington.
ALEMAN GONZALEZ V. BARR 15
ANALYSIS
“A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public interest.” Winter
v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
Although the district court determined that all preliminary
injunction factors weighed in Plaintiffs’ favor, the
Government asserts only that the district court erred by
concluding that Plaintiffs are likely to succeed on the merits
of the statutory claims. We therefore limit our analysis to
this factor.
The dispositive issue for Plaintiffs’ likelihood of success
on their § 1231(a)(6) statutory claims is whether, as the
Government contends, Diouf II is clearly irreconcilable with
Jennings. If the Government’s contention is correct, then
Diouf II cannot support the preliminary injunction the
district court granted.
Familiar principles guide our consideration of the
Government’s principal challenge to the preliminary
injunction. In this circuit, a decision of a prior three-judge
panel is controlling unless and until a superseding ruling
comes from higher authority, including the Supreme Court
or a panel of our court sitting en banc. Miller, 335 F.3d
at 893, 899–900. “[T]he issues decided by the higher court
need not be identical in order to be controlling. Rather, the
relevant court of last resort must have undercut the theory or
reasoning underlying the prior circuit precedent in such a
way that the cases are clearly irreconcilable.” Id. at 900. In
cases of “clear irreconcilability,” we “should consider
[our]selves bound by the intervening higher authority and
16 ALEMAN GONZALEZ V. BARR
reject the prior opinion of this court as having been
effectively overruled.” Id.
As we have already emphasized, “[t]he ‘clearly
irreconcilable’ requirement is ‘a high standard.’” Robertson,
875 F.3d at 1291 (citation omitted). “It is not enough for
there to be ‘some tension’ between the intervening higher
authority and prior circuit precedent, or for the intervening
higher authority to ‘cast doubt’ on the prior circuit
precedent.” Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir.
2012) (internal citation omitted) (quoting United States v.
Orm Hieng, 679 F.3d 1131, 1140–41 (9th Cir. 2012), and
United States v. Delgado-Ramos, 635 F.3d 1237, 1239 (9th
Cir. 2011) (per curiam)). “In order for us to ignore existing
Ninth Circuit precedent . . . the reasoning and principles of
[the later authority] would need to be so fundamentally
inconsistent with our prior cases that our prior cases cannot
stand.” In re Gilman, 887 F.3d 956, 962 (9th Cir. 2018)
(alteration in brackets added). But if we “can apply our prior
circuit precedent without running afoul of the intervening
authority, we must do so.” Lair, 697 F.3d at 1207 (internal
quotations and citation omitted).
To set the stage for our analysis of whether Diouf II is
clearly irreconcilable with Jennings, we first discuss the
relevant precedents of the Supreme Court and our court
construing the immigration detention statutes. We then
consider the Government’s particular arguments about how,
in its view, Jennings undercuts Diouf II. Finally, we address
the Government’s argument that the district court
improperly re-applied the canon of constitutional avoidance
to § 1231(a)(6).
ALEMAN GONZALEZ V. BARR 17
I. Constructions of the Immigration Detention Statutes
A. Zadvydas v. Davis, 533 U.S. 678 (2001)
We turn first to the Supreme Court’s decision in
Zadvydas v. Davis, 533 U.S. 678 (2001). Zadvydas is central
to understanding our court’s application of the canon of
constitutional avoidance to all the immigration detention
statutes, as well as to understanding the Court’s decision in
Jennings.
In Zadvydas, the Court considered a federal habeas
challenge to detention pursuant to § 1231(a)(6) brought by
aliens with criminal convictions whom the government had
detained beyond § 1231(a)(2)’s initial 90-day mandatory
detention period. 533 U.S. at 682. The question before the
Court was whether, beyond the initial removal period,
§ 1231(a)(6) authorized indefinite detention or only
detention for a period reasonably necessary to secure the
alien’s removal. Id.
Invoking the canon of constitutional avoidance, the
Court rejected the government’s argument that § 1231(a)(6)
sets no limit on the permissible length of detention beyond
the removal period. Id. at 689. The Court reasoned first that
“[a] statute permitting indefinite detention of an alien would
raise a serious constitutional problem” under the Fifth
Amendment’s Due Process Clause given the physical liberty
at issue, the potentially permanent civil confinement the
statute could authorize, and the limited “procedural
protections available to the alien” pursuant to 8 C.F.R.
§ 241.4(d)(1) (2001), pursuant to which “the alien bears the
burden of proving he is not dangerous[.]” Id. at 690−92.
Against the backdrop of these constitutional concerns, the
Court could not find in § 1231(a)(6)’s text a “clear indication
of congressional intent to grant the Attorney General the
18 ALEMAN GONZALEZ V. BARR
power to hold indefinitely an alien ordered removed.” Id. at
697. The Court explained that the statute’s use of the word
“may” in the phrase “may be detained” is ambiguous and
“does not necessarily suggest unlimited discretion.” Id. The
Court thus “read an implicit limitation into” § 1231(a)(6),
“limit[ing] an alien’s post-removal-period detention to a
period reasonably necessary to bring about that alien’s
removal from the United States.” Id. at 689.
Faced with the habeas petitions in that case, the Court
outlined how a habeas court should apply this construction
of § 1231(a)(6). Id. at 699. When removal is no longer
reasonably foreseeable, § 1231(a)(6) no longer authorizes
continued detention. Id. at 699−700. “In that case, . . . the
alien’s release may and should be conditioned on any of the
various forms of supervised release that are appropriate in
the circumstances, and the alien may no doubt be returned to
custody upon a violation of those conditions.” Id. at 700
(citing 8 U.S.C. §§ 1231(a)(3); 8 C.F.R. § 241.5)).
“[H]av[ing] reason to believe . . .that Congress previously
doubted the constitutionality of detention for more than six
months,” the Court recognized six months as a
presumptively reasonable length of detention “for the sake
of uniform administration in the federal courts.” Id. at 701.
“After this 6-month period, once the alien provides good
reason to believe that there is no significant likelihood of
removal in the reasonably foreseeable future, the
Government must respond with evidence sufficient to rebut
that showing.” Id. The Court qualified that this “does not
mean that every alien not removed must be released after six
months,” but rather “an alien may be [detained] until it has
been determined that there is no significant likelihood of
removal in the reasonably foreseeable future.” Id.
ALEMAN GONZALEZ V. BARR 19
B. This Court’s Pre-Jennings Constructions of the
Immigration Detention Statutes
Although Zadvydas concerned only § 1231(a)(6), that
decision led this court to “grapple[] in piece-meal fashion
with whether the various immigration detention statutes may
authorize indefinite or prolonged detention of detainees and,
if so, may do so without providing a bond hearing.”
Rodriguez v. Robbins, 804 F.3d 1060, 1077 (9th Cir. 2015)
(Rodriguez III) (quoting Rodriguez v. Robbins, 715 F.3d
1127, 1134 (9th Cir. 2013) (Rodriguez II) (further quoting
Rodriguez v. Hayes, 591 F.3d 1105, 1114 (9th Cir. 2010)
(Rodriguez I))). 3 Five decisions are relevant here.
First, in Casas-Castrillon v. Department of Homeland
Security, 535 F.3d 942 (9th Cir. 2008), our court considered
a habeas petition from a lawful permanent resident whom the
government had detained for nearly seven years without
providing an adequate opportunity to challenge his
detention. Id. at 944. We recognized that § 1226(a)
3
Our court also identified the Court’s decision in Demore v. Kim,
538 U.S. 510 (2003), as important to our constructions of the
immigration detention statutes to address the constitutional issue of
prolonged detention. See Rodriguez III, 804 F.3d at 1077. Demore,
however, is the earliest example of the Court’s rejection of our court’s
reliance on Zadvydas to construe the other immigration detention
statutes. We had construed § 1226(c) to require the government to
provide a bail hearing with reasonable promptness to determine whether
the alien was a flight risk or a danger to the community. Kim v. Ziglar,
276 F.3d 523, 539 (9th Cir. 2002). Foreshadowing its reasoning in
Jennings, the Court rejected that construction by distinguishing
Zadvydas’s focus on § 1231(a)(6) as “materially different” from
§ 1226(c), noting that whereas the statute at issue in Zadvydas involved
“‘indefinite’ and ‘potentially permanent’ detention,” § 1226(c) involved
detention “of a much shorter duration” with a “definite termination
point.” Demore, 538 U.S. at 527–29.
20 ALEMAN GONZALEZ V. BARR
authorized the government to detain Casas-Castrillon
because he remained capable of being removed, id. at
948−49, but we also recognized that Casas-Castrillon’s
nearly seven-year detention posed a “constitutional
question,” id. at 950. We declined to resolve that question
because we could “find no evidence that Congress intended
to authorize the long-term detention of aliens such as Casas[-
Castrillon] without providing them access to a bond hearing
before an immigration judge.” Id.
Relying on an earlier decision of our court that applied
the canon of constitutional avoidance to § 1226(c), we
determined that prolonged detention under § 1226(a) is
“permissible only where the Attorney General finds such
detention individually necessary by providing the alien with
an adequate opportunity to contest the necessity of his
detention.” Id. at 951 (relying on Tijani v. Willis, 430 F.3d
1241, 1242 (9th Cir. 2005)). 4 We recognized that
“[§] 1226(a), unlike § 1226(c), provides such authority for
the Attorney General to conduct a bond hearing and release
the alien on bond or detain him if necessary to secure his
presence at removal.” Id. We held that “§ 1226(a) must be
construed as requiring the Attorney General to provide the
alien with such a hearing” given the constitutional
4
In Tijani, our court addressed the government’s detention of an
alien for two years and eight months pursuant to § 1226(c). 430 F.3d at
1242. We invoked Zadvydas to question the permissibility of a
congressional statute authorizing detention “of this duration for lawfully
admitted resident aliens who are subject to removal.” Id. (citing
Zadvydas, 533 U.S. at 690). We distinguished Demore as a case “where
the alien conceded deportability,” and then proceeded to apply the canon
of constitutional avoidance to construe § 1226(c) to conditionally grant
habeas relief unless the government provided the alien with a bond
hearing before an IJ where the government bore the burden of justifying
continued detention. Id.
ALEMAN GONZALEZ V. BARR 21
doubtfulness of prolonged detention without an
individualized determination of dangerousness or flight risk.
Id. (citing Tijani, 430 F.3d at 1242) (emphasis in original).
“Thus an alien is entitled to be released on bond unless the
‘government establishes that he is a flight risk or will be a
danger to the community.’” Id. (quoting Tijani, 430 F.3d
at 1242).
Second, in Diouf II, we reversed a district court’s denial
of a preliminary injunction that would have required
individualized bond hearings pursuant to § 1231(a)(6).
634 F.3d at 1084. We “extend[ed] Casas-Castrillon” to
§ 1231(a)(6), id. at 1086, such that “individuals detained
[there]under . . . are entitled to the same procedural
safeguards against prolonged detention as individuals
detained under § 1226(a),” id. at 1084. We determined that
“prolonged detention under § 1231(a)(6), without adequate
procedural safeguards, would raise ‘serious constitutional
concerns.’” Id. at 1086 (quoting Casas-Castrillon, 535 F.3d
at 950). We thus “appl[ied] the canon . . . and construe[d]
§ 1231(a)(6) as requiring an individualized bond hearing,
before an immigration judge, for aliens facing prolonged
detention under that provision.” Id. (quoting Casas-
Castrillon, 535 F.3d at 951). We held further that “[s]uch
aliens are entitled to release on bond unless the government
establishes that the alien is a flight risk or will be a danger to
the community.” Id.
In justifying this application of the canon to § 1231(a)(6)
to require a bond hearing, we rejected the government’s
argument that § 1231(a)(6)’s text does not expressly provide
for release on bond as does § 1226(a)’s text. We
underscored that we had already construed § 1231(a)(6) to
authorize release on bond and acknowledged that the
government’s own regulations permitted release on bond for
22 ALEMAN GONZALEZ V. BARR
aliens detained pursuant to the provision. Id. at 1089 (citing
Diouf I, 542 F.3d at 1234; 8 C.F.R. § 241.5(b)).
We also rejected the government’s argument that the
regulations it modified in the wake of the Court’s
construction of § 1231(a)(6) in Zadvydas provided sufficient
safeguards to protect the liberty interests of § 1231(a)(6)
detainees. Id. at 1089 & n.10. We found “serious
constitutional concerns” with the government’s 180-day
review process (i.e., detention lasting six months) because
the regulations “do not provide for an in-person hearing, they
place the burden on the alien rather than the government and
they do not provide for a decision by a neutral arbiter such
as an immigration judge.” Id. at 1091. In the context of this
discussion, we explained for the first time that “[a]s a general
matter, detention is prolonged when it has lasted six months
and is expected to continue more than minimally beyond six
months.” Id. at 1092 n.13; see also Rodriguez III, 804 F.3d
at 1069 (“In Diouf II, we also adopted a definition of
‘prolonged’ detention . . . for purposes of administering the
Casas[-Castrillon] bond hearing requirement.” (citing Diouf
II, 634 F.3d at 1092 n.13)). Alluding to Zadvydas, we
explained that the “private interests at stake are profound” at
six months of detention, such that “a hearing before an
immigration judge is a basic safeguard for aliens facing
prolonged detention under § 1231(a)(6).” Diouf II, 634 F.3d
at 1091–92.
Third, and not long after Diouf II, we explained in Singh
that “given the substantial liberty interests at stake,”
638 F.3d at 1200, due process requires the government to
prove “by clear and convincing evidence that an alien is a
flight risk or a danger to the community to justify the denial
of bond,” id. at 1203–04. Although Singh concerned a bond
hearing requirement that our court construed § 1226(a) as
ALEMAN GONZALEZ V. BARR 23
requiring in Casas-Castrillon, Singh was not a statutory
construction decision. Instead, we drew from the Supreme
Court’s constitutional procedural due process jurisprudence
“plac[ing] a heightened burden of proof on the State in civil
proceedings in which the ‘individual liberty interests at stake
. . . are both particularly important and more substantial than
mere loss of money.’” Id. at 1204 (quoting Cooper v.
Oklahoma, 517 U.S. 348, 363 (1996), and citing Foucha v.
Louisiana, 504 U.S. 71, 80 (1992); Woodby v. INS, 385 U.S.
276, 285 (1966); Chaunt v. United States, 364 U.S. 350, 353
(1960)).
Fourth, in Rodriguez II, we affirmed a district court’s
preliminary injunction that required the government to
provide individualized bond hearings before an IJ to class
members detained pursuant to §§ 1225(b) and 1226(c).
Rodriguez II, 715 F.3d at 1130–31. To avoid the
constitutional concerns posed by prolonged detention, we
held that “§ 1226(c)’s mandatory language must be
construed ‘to contain an implicit ‘reasonable time’
limitation, . . . subject to federal court review.’” Id. at 1138
(quoting Zadvydas, 533 U.S. at 682). After the expiration of
that implicit time limitation, the government’s authority to
detain class members would shift to § 1226(a). Id. (citing
Casas-Castrillon, 535 F.3d at 948). Relying on Diouf II’s
definition of prolonged detention, we held that “subclass
members who have been detained under § 1226(c) for six
months are entitled to a bond hearing[.]” Id. (citing Diouf II,
634 F.3d at 1092 n.13). We acknowledged the government’s
argument there that “Diouf II by its terms addressed
detention under § 1231(a)(6), not § 1226(c) or § 1225(b),”
but we thought the conclusion “that detention always
becomes prolonged at six months” was “consistent with the
reasoning of Zadvydas, Demore, Casas[-Castrillon], and
Diouf II[.]” Id. at 1039. Finding “no basis” to distinguish
24 ALEMAN GONZALEZ V. BARR
§ 1225(b) from § 1226(c), we also held that any mandatory
detention pursuant to § 1225(b) was “implicitly time-
limited” to six months, after which the government’s
authority shifted to § 1226(a). Id. at 1143–44. The
§ 1225(b) subclass would thus be entitled to a bond hearing
in accordance with Casas-Castrillon’s construction of
§ 1226(a). Id. (citing Casas-Castrillon, 535 F.3d at 948).
Singh’s strictures would apply to the §§ 1225(b) and 1226(c)
subclasses. Id. at 1139, 1144.
Finally, Rodriguez III—the decision at issue in
Jenningslargely distilled the holdings of our decisions
construing the immigration detention statutes into a single
decision. There, we considered a grant of summary
judgment and corresponding permanent injunction for a
class of noncitizens who challenged their prolonged
detention pursuant to §§ 1225(b), 1226(a), 1226(c), and
1231(a) without individualized bond hearings to justify
continued detention. Rodriguez III, 804 F.3d at 1065. We
reversed the judgment and injunction insofar as they
concerned noncitizens detained pursuant to § 1231(a),
explaining that the class was defined as non-citizens
“detained ‘pending completion of removal proceedings,
including judicial review.’” Id. at 1086. We explained that
a removal order could not be administratively final for any
class members, and thus “[s]imply put, the § 1231(a)
subclass does not exist.” Id. We otherwise affirmed the
judgment and injunction.
In Rodriguez III, we concluded that “the canon of
constitutional avoidance requires us to construe the statutory
scheme to provide all class members who are in prolonged
detention with bond hearings at which the government bears
the burden of proving by clear and convincing evidence that
the class member is a danger to the community or a flight
ALEMAN GONZALEZ V. BARR 25
risk.” Id. at 1074. For the §§ 1225(b) and 1226(c)
subclasses, we reiterated our application of the canon in
Rodriguez II to construe the provisions as containing an
implicit six-month time limitation, after which the
government’s detention authority shifted to § 1226(a),
thereby entitling detainees to a bond hearing in accordance
with Casas-Castrillon. Id. at 1079−81 (discussing
§ 1226(c)), id. at 1081−84 (discussing § 1225(b)). We
affirmed the injunction for the § 1226(a) subclass as
“squarely controlled by our precedents,” pointing principally
to Casas-Castrillon. Id. at 1085. Such class members were
“entitled to automatic bond hearings after six months of
detention.” Id.
We also addressed procedural protections for the
statutory bond hearings we construed § 1226(a) as requiring,
and to which all class members were entitled based on our
constructions of the immigration statutes at issue. Relying
on Singh, we affirmed the requirement that the government
justify continued detention by clear and convincing
evidence. Id. at 1087. We also determined, for the first time,
that “the government must provide periodic bond hearings
every six months” after an initial bond hearing “so that
noncitizens may challenge their continued detention as ‘the
period of . . . confinement grows.’” Id. at 1089 (quoting
Diouf II, 634 F.3d at 1091, which in turn quoted Zadvydas,
533 U.S. at 701). The government petitioned for a writ of
certiorari, which the Supreme Court granted. Jennings v.
Rodriguez, 136 S. Ct. 2489 (2016).
C. Jennings v. Rodriguez, 138 S. Ct. 830 (2018)
Our court’s constructions of §§ 1225(b), 1226(a), and
1226(c) were sharply criticized in Jennings. In the Court’s
opinion, we had “adopted implausible constructions of the
26 ALEMAN GONZALEZ V. BARR
three immigration provisions at issue” to hold “that detained
aliens have a statutory right to periodic bond hearings under
the provisions at issue.” 138 S. Ct. at 836. As the Court
explained, “[t]he canon of constitutional avoidance ‘comes
into play only when, after the application of ordinary textual
analysis, the statute is found to be susceptible of more than
one construction.’” Id. at 842 (quoting Clark, 543 U.S.
at 385). The Court found no textual basis for our
construction of those statutory provisions.
The Court began with §§ 1225(b)(1) and (b)(2).
Observing that both provisions provide that an alien “shall
be detained,” id. at 837, 842, the Court explained that “[r]ead
most naturally, [the statutes] mandate detention of applicants
for admission until certain proceedings have concluded,” id.
at 842. The Court determined that “[d]espite the clear
language,” our court read an implicit six-month time
limitation regarding the length of detention into them. Id.
The Court rejected our reading because the provisions’ text
did not “hint[] that those provisions restrict detention after
six months.” Id. at 843. The Court explained that “[s]potting
a constitutional issue does not give a court the authority to
rewrite a statute as it pleases,” but instead “the canon permits
a court to ‘choos[e] between competing plausible
interpretations of a statutory text.’” Id. (quoting Clark,
543 U.S. at 381) (emphasis in original).
The Court also rejected our reliance on Zadvydas “to
graft a time limit onto the text of § 1225(b).” Id. The Court
explained that “Zadvydas concerned § 1231(a)(6),” a
different provision “authoriz[ing] the detention of aliens
who have already been ordered removed from the country.”
Id. The Court explained that Zadvydas construed
§ 1231(a)(6) to mean that an alien who is ordered removed
may not be detained beyond a period reasonably necessary
ALEMAN GONZALEZ V. BARR 27
to secure his removal, with six months as the presumptively
reasonable period. Id. According to the Court, Zadvydas
“justified this interpretation by invoking the constitutional-
avoidance canon” to “detect[] ambiguity in the statutory
phrase ‘may be detained.’” Id. (emphasis in original).
Characterizing Zadvydas as “a notably generous application
of the constitutional-avoidance canon,” the Court
determined that we “went much further” in construing
§§ 1225(b)(1) and (b)(2). Id.
The Court explained that we “failed to address whether
Zadvydas’s reasoning may fairly be applied in this case
despite the many ways in which the provision in question in
Zadvydas, § 1231(a)(6), differs materially from those at
issue here, §§ 1225(b)(1) and (b)(2).” Id. For one, unlike
§ 1231(a)(6), the provisions “provide for detention for a
specified period of time.” Id. at 844. Thus, detention under
these statutes could not be indefinite like detention under
§ 1231(a)(6) could be without a limiting construction.
Second, whereas § 1231(a)(6) uses the word “may,”
§§ 1225(b)(1) and (b)(2) use the phrase “shall.” Id. Thus,
the latter provisions are clearly mandatory, whereas
§ 1231(a)(6) is not. Finally, the Court found Zadvydas
“particularly inapt” because Congress authorized the
Attorney General to release aliens detained pursuant to
§§ 1225(b)(1) and (b)(2) for urgent humanitarian reasons or
a significant public benefit. Id. (citing 8 U.S.C.
§ 1182(d)(5)(A)). By “negative implication,” the Court read
this to exclude any other manner of release and to
“preclude[] the sort of implicit time limit on detention that
we found in Zadvydas.” Id.
The Court deemed § 1226(c)’s language “even clearer.”
Id. at 846. The Court determined that § 1226(c) is not silent
on the length of permissible detention because it mandates
28 ALEMAN GONZALEZ V. BARR
detention of certain aliens pending removal proceedings. Id.
The Court further determined that, pursuant to § 1226(c)’s
terms, the Attorney General “may release” an alien detained
pursuant to that provision “‘only if the Attorney General
decides’ both that doing so is necessary for witness-
protection purposes and that the alien will not pose a danger
or flight risk.” Id. (quoting 8 U.S.C. § 1226(c)(2)) (emphasis
in original). Thus, the Court read this text to mean “aliens
detained under its authority are not entitled to be released
under any circumstances other than those expressly
recognized by the statute.” Id.
Turning to § 1226(a), the Court rejected our court’s
imposition of “procedural protections that go well beyond
the initial bond hearing established by existing
regulationsnamely, periodic bond hearings every six
months in which the Attorney General must prove by clear
and convincing evidence that the alien’s continued detention
is necessary.” Id. at 847. According to the Court, “[n]othing
in § 1226(a)’s text—which says only that the Attorney
General ‘may release’ the alien ‘on . . . bond’—even
remotely supports the imposition of either of those
requirements.” Id. 5 The Court ultimately remanded for
consideration of the plaintiffs’ constitutional due process
challenges to the statutes at issue. Id. at 851.
5
Jennings also rejected “layer[ing]” onto § 1226(a) a procedural
requirement that would require an IJ to consider “the length of detention
prior to a bond hearing . . . in determining whether the alien should be
released.” 138 S. Ct. at 848. Neither Diouf II, nor the district court’s
preliminary injunction require this. Thus, this aspect of Jennings is
inapposite to this appeal.
ALEMAN GONZALEZ V. BARR 29
Jennings clearly invalidated aspects of our court’s prior
constructions of §§ 1225(b), 1226(a), and 1226(c). About
this, we have no doubt. See Rodriguez v. Marin, 909 F.3d
252, 255 (9th Cir. 2018) (“In Jennings[], the Supreme Court
held that we misapplied the canon of constitutional
avoidance to hold that certain immigration detention
statutes, namely 8 U.S.C. §§ 1225(b), 1226(a), and 1226(c),
implicitly contain a reasonableness determination after
which due process concerns require that persons in
prolonged mandatory detention are entitled to individualized
bond hearings and possibly, conditional release.”). But this
appeal requires us to determine the impact of Jennings on
Diouf II’s construction of § 1231(a)(6), if any.
II. Diouf II Is Not Clearly Irreconcilable with Jennings
Implicitly acknowledging that Jennings did not concern
our construction of § 1231(a)(6), the Government urges us
to conclude that Jennings has invalidated Diouf II and
therefore to conclude further that we are no longer bound by
Diouf II. See Miller, 335 F.3d at 893.
The scope of our inquiry into whether Diouf II is clearly
irreconcilable with Jennings is limited. This inquiry does
not call upon us to opine on whether Diouf II reached the
right result, nor to determine whether we would construe
§ 1231(a)(6) differently. See Close v. Sotheby’s, Inc.,
894 F.3d 1061, 1073–74 (9th Cir. 2018) (“[T]he fact that we
might decide a case differently than a prior panel is not
sufficient grounds for deeming the [prior] case overruled.”).
Instead, we must determine whether the Government’s
arguments satisfy the “high standard” of clear
irreconcilability that governs in this circuit. Robertson,
875 F.3d at 1291. “[I]f we can apply our precedent
consistently with that of the higher authority, we must do
so.” FTC, 926 F.3d at 1213 (emphasis added). “Nothing
30 ALEMAN GONZALEZ V. BARR
short of ‘clear irreconcilability’ will do.” Close, 894 F.3d
at 1073.
The Government advances three overlapping arguments
to persuade us that Jennings effectively overruled Diouf II.
First, the Government argues that Diouf II’s application of
the canon of constitutional avoidance to § 1231(a)(6)
contravenes Jennings’s mode of applying the canon to the
other immigration detention statutes. Second, the
Government argues that Jennings’s rejection of construing
§ 1226(a) to require certain procedural protections
forecloses Diouf II’s construction of § 1231(a)(6). Third, the
Government argues that Diouf II is no longer good law
because Jennings reversed a decision of our court that
applied Casas-Castrillon’s construction of § 1226(a), a
decision on which Diouf II relied.
We consider and ultimately reject each of the
Government’s arguments. Although we recognize some
tension between Diouf II and Jennings, the Government has
not persuaded us that Diouf II is “so fundamentally
inconsistent with” Jennings that we may overrule Diouf II
now. In re Gilman, 887 F.3d at 962. Apart from rejecting
the Government’s arguments, we find additional support for
the conclusion that Diouf II is not clearly irreconcilable with
Jennings in the Third Circuit’s decision in Guerrero-
Sanchez v. Warden York County Prison, 905 F.3d 208 (3d
Cir. 2018), which expressly adopted Diouf II’s construction
of § 1231(a)(6) in the wake of Jennings.
A. Diouf II’s Application of the Canon of
Constitutional Avoidance
The Government’s core contention is that Diouf II’s
application of the canon of constitutional avoidance to
§ 1231(a)(6) runs afoul of Jennings. We understand this
ALEMAN GONZALEZ V. BARR 31
argument to concern two points specific to Diouf II’s
interpretation of § 1231(a)(6). First, the Government argues
that Jennings abrogated our application of the canon of
constitutional avoidance to § 1231(a)(6) in Diouf II. Second,
the Government contends that Jennings overrides the
conclusion that § 1231(a)(6) may be construed to authorize
release on bond and thus Diouf II’s application of the canon
to construe § 1231(a)(6) as requiring a bond hearing cannot
stand after Jennings. 6
In defense of Diouf II, Plaintiffs argue that in Jennings,
the Court “explicitly reaffirmed its prior holding in Zadvydas
that [§] 1231(a)(6) is amenable to the canon of constitutional
avoidance.” Although we agree that Zadvydas plays an
important role in our analysis given Jennings’s discussion of
that decision, we do not think that the clear irreconcilability
analysis here is as simple as Plaintiffs posit. The
Government does not challenge whether the canon may be
applied to § 1231(a)(6) at all, but rather contends that
Jennings shows that Diouf II improperly applied the canon
to construe § 1231(a)(6) as requiring a bond hearing. As
Plaintiffs recognize, Zadvydas did not construe § 1231(a)(6)
in this manner. Thus, we must consider the distinct question
of whether Diouf II’s particular application of the canon runs
afoul of Jennings.
6
We distinguish these arguments from the related, yet distinct issue
of whether Diouf II properly construed § 1231(a)(6) to require a bond
hearing after six months of detention. We consider that issue in our
analysis of the Government’s argument regarding Jennings’s rejection
of our court’s construction of § 1226(a) to require “periodic bond
hearings” after six months of detention, beyond the bond hearing that the
government’s regulations already provided at the outset of detention for
an alien detained pursuant to the government’s § 1226(a) detention
authority.
32 ALEMAN GONZALEZ V. BARR
The Government tells us that Diouf II’s application of the
canon runs afoul of Jennings because, in the Government’s
view, Diouf II merely spotted a constitutional issue
regarding prolonged detention that it solved by applying the
canon to “insert” a bond hearing requirement into
§ 1231(a)(6). Pointing to the Court’s rejection in Jennings
of our application of the canon to the other immigration
detention statutes, the Government invites us to reject Diouf
II’s construction of § 1231(a)(6) as erroneously requiring
“the very same relief that the Supreme Court found
inconsistent with three distinct immigration statutes.”
Although we acknowledge the superficial appeal of the
Government’s suggestion, it carries little weight for us in our
clear irreconcilability analysis. As a general matter, “we
‘must be careful not to apply the rules applicable under one
statute to a different statute without careful and critical
examination.’” Murray v. Mayo Clinic, 934 F.3d 1101, 1106
(9th Cir. 2019) (quoting Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167, 174 (2009)). That admonition carries force
here. In no fewer than ten instances, the Court expressly
qualified in Jennings that it rejected our application of the
canon to the statutory provisions “at issue” there. Jennings,
138 S. Ct. at 836, 839, 842, 843, 844, 850, 851. The Court’s
repeated use of that limiting language strongly suggests that
we should not read the Court’s rejection of our application
of the canon to the other immigration detention statutes as
alone undercutting Diouf II’s application of the canon to
§ 1231(a)(6). As we discuss in Part II.B.3, this conclusion
is inescapable given the material textual differences between
§ 1231(a)(6) and the other immigration detention statutes, a
point that the Court underscored throughout its analysis in
Jennings.
ALEMAN GONZALEZ V. BARR 33
Our dissenting colleague takes issue with our
observation that Jennings repeatedly qualified that its focus
was on the statutory provisions at issue there, namely
§§ 1225(b), 1226(a), and 1226(c). The dissent contends that
Jennings’s repeated and express limitations do not deprive
that decision “of all persuasive force” in the clear
irreconcilability inquiry presented here. Dissent at 61 n.2.
(quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338,
351 (2013)). Drawing on the recent decision in Murray v.
Mayo Clinic, 934 F.3d 1101 (9th Cir. 2019), in which a
three-judge panel of our court concluded that an earlier
circuit precedent was clearly irreconcilable with two
intervening Supreme Court decisions, the dissent argues
“that Jennings and Diouf II analyzed different statutes is not
dispositive of their irreconcilability.” Dissent at 62 n.2. We
do not understand this critique. 7 We have not described
7
We similarly do not understand the dissent’s reliance on Murray’s
clear irreconcilability analysis. Murray addressed the continued viability
of our court’s holding in Head v. Glacier Northwest, Inc, 413 F.3d 1053
(9th Cir. 2005) that Title I of the Americans with Disabilities Act (ADA)
requires only a showing that disability was a motivating factor to prove
a violation. The relevant statutory provision prohibited discrimination
“on the basis of disability.” 42 U.S.C. § 12112(a). After Head, the Court
interpreted the phrase discrimination “because of such an individual’s
age” in the Age Discrimination in Employment Act (ADEA) to require
but-for causation and rejected a motivating factor analysis. Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009). The Court subsequently
held that the phrase “because of” in Title VII’s anti-retaliation provision
also requires but-for causation, again rejecting the motivating factor
standard. Nassar, 570 U.S. at 351–53. The Murray panel determined
that Head is clearly irreconcilable with Gross and Nassar’s interpretation
of similar statutory text and held that Title I requires but-for causation as
well. Murray, 934 F.3d at 1106 (“Under Gross, the phrase ‘on the basis
of disability’ indicates but-for causation.”); id. (reasoning that Nassar,
570 U.S. at 350, explains that Gross’s holding that “because of,” “by
reason of,” “on account of,” and “based on” all indicate a but-for causal
relationship). Contrary to the dissent’s suggestion, this case is not
34 ALEMAN GONZALEZ V. BARR
Jennings’s repeated qualifications regarding its limited
focus on the statutory provisions at issue there as dispositive
of the clear irreconcilability analysis. Instead, our
observation leads us to reject the Government’s simplistic
argument that the mere fact that Jennings invalidated our
court’s application of the canon to other immigration
detention statutes alone gives us license to overrule Diouf II.
See Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2018)
(amended opinion) (concluding that the Supreme Court’s
“express limitation on its holding” in the intervening
decision did not render the prior circuit decision clearly
irreconcilable with the intervening decision). More
critically, as we explain in Part II.B.3, it is the material
textual differences amongst the immigration detention
statutes that Jennings expressly and repeatedly recognized
that give Jennings’s treatment of the other statutory
provisions little weight in our clear irreconcilability analysis.
Focusing squarely on Diouf II, the Government argues
more narrowly that § 1231(a)(6) cannot be construed to
require an individualized bond hearing because the provision
does not expressly use the word “bond.” The government
raised this very argument in Diouf II. 634 F.3d at 1089. But
now relying on Jennings, the Government contends that
Diouf II runs afoul of Jennings’s admonition that “[s]potting
a constitutional issue does not give a court the authority to
rewrite a statute as it pleases.” 138 S. Ct. at 843.
Murray. Unlike the provisions discussed there, we are not confronted
with nominal and immaterial differences between the provisions at issue
in Jennings and § 1231(a)(6). In reining in our court’s reliance on
Zadvydas and the canon to construe the immigration detention statutes
at issue in Jennings, the Court made it eminently clear that the textual
differences amongst the statutes are material. See Jennings, 138 S. Ct.
at 843.
ALEMAN GONZALEZ V. BARR 35
This argument is not without some appeal. The
Government points us only to Part III of Diouf II. In a single
paragraph, our court identified constitutional concerns with
“prolonged detention under § 1231(a)(6), without adequate
procedural protections[.]” Diouf II, 634 F.3d at 1086. “To
address those concerns,” we “appl[ied] the canon of
constitutional avoidance and construe[d] § 1231(a)(6) as
requiring an individualized bond hearing, before an
immigration judge, for aliens facing prolonged detention
under that provision.” Id. (citing Casas-Castrillon, 535 F.3d
at 951). This portion of Diouf II contained no analysis
regarding the canon’s application to § 1231(a)(6)’s text. We
also recognized elsewhere in Diouf II that § 1231(a)(6) does
not explicitly use the word “bond.” Id. at 1089. These
aspects of Diouf II give us pause in light of Jennings, but
only briefly.
In Diouf II, we recognized that the canon is a tool of
statutory construction that applies when an act of Congress
raises a serious constitutional doubt. Diouf II, 634 F.3d at
1086 n.7. And we recognized that a federal court utilizes the
canon to “‘decid[e] which of two plausible statutory
constructions to adopt[.]’” Id. at 1088 (quoting Clark,
543 U.S. at 380−81). Contrary to the Government’s
contention that Diouf II did not grapple with § 1231(a)(6)’s
text to justify its application of the canon, Diouf II did so.
Section 1231(a)(6) provides that “if released” from detention
beyond the removal period, an alien “shall be subject to the
terms of supervision in [§ 1231(a)](3).” 8 U.S.C.
§ 1231(a)(6). In Diouf II, although we recognized that
§ 1231(a)(6) does not use the word “bond,” we “ha[d] no
doubt that bond is also authorized under §1231(a)(6), as we
have held and as Department of Homeland Security (DHS)
regulations acknowledge.” 634 F.3d at 1089. (citing Diouf
36 ALEMAN GONZALEZ V. BARR
I, 542 F.3d at 1234; 8 C.F.R. § 241.5(b)) (emphasis added). 8
We fail to see how Jennings undercuts this articulation and
application of the canon.
Jennings “expressly looked” to the same underlying
principles and applied the canon “consistent with th[ose]
principles[.]” Lair, 697 F.3d at 1207. Jennings first
affirmed that the canon applies “[w]hen ‘a serious doubt’ is
raised about the constitutionality of an act of Congress,”
pursuant to which “‘. . . this Court will first ascertain
whether a construction of the statute is fairly possible by
which the question may be avoided.’” Jennings, 138 S. Ct.
at 842 (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)).
Jennings then reiterated that “the canon permits a court ‘to
choos[e] between competing plausible interpretations of a
statutory text.’” Id. at 843 (quoting Clark, 543 U.S. at 381)
(emphasis in original omitted). Jennings reiterated what the
Court had already said about the canon in several cases
decided long before our Diouf II decision. See United States
v. Locke, 471 U.S. 84, 96 (1985) (“We cannot press statutory
construction ‘to the point of disingenuous evasion’ even to
avoid a constitutional question.”) (quoting George Moore
Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933)); see also
Clark, 543 U.S. at 381, 385; United States v. Oakland
Cannabis Buyers’ Co-op., 532 U.S. 483, 494 (2001).
The Government and the dissent conspicuously ignore
that Diouf II articulated and relied on the same principles
governing application of the canon as Jennings. We have
8
8 C.F.R. § 241.5 is a regulation that applies to aliens who the
government releases from § 1231(a)(6) detention. The regulation
provides that an officer may require the posting of a bond to ensure an
alien complies with the conditions of a supervision order. Id. As
Plaintiffs acknowledge, this regulation remains in effect.
ALEMAN GONZALEZ V. BARR 37
explained, however, that when an intervening decision from
a higher authority does not “change the state of the law,” but
instead “clarifie[s] and reinforce[s]” law that existed at the
time of the prior circuit decision, it is unlikely to satisfy the
Miller standard. Lair, 697 F.3d at 1207; see also Nat’l Fed’n
of the Blind v. United Airlines, Inc., 813 F.3d 718, 728 (9th
Cir. 2016) (reasoning in part that a prior circuit decision was
“not so ‘clearly irreconcilable’” with an intervening
Supreme Court decision because the intervening decision
did not “represent a significant shift” in the relevant
jurisprudence). The dissent identifies nothing new in
Jennings regarding the canon’s application that Diouf II
failed to articulate in applying the canon. 9 As our analysis
shows, Jennings did not do so but rather engaged in
statutory-specific applications of the canon. We thus reject
the argument that Diouf II’s application of the canon to
§ 1231(a)(6) is clearly irreconcilable with Jennings’s mode
of applying the canon. 10
9
Our court did not decide Diouf II in a statutory vacuum. Rather,
that decision’s construction of § 1231(a)(6) followed Zadvydas, which
identified ambiguity in § 1231(a)(6)’s text regarding the government’s
authority to detain an alien, and two earlier circuit precedents which
construed § 1231(a)(6) to authorize release on bond. Diouf I, 542 F.3d
at 1234; Doan v. I.N.S., 311 F.3d 1160 (9th Cir. 2002). Diouf II relied
on these decisions to apply the canon. See Diouf II, 634 F.3d at 1087–
88, 1091–92 & nn.10–13 (referring to Zadvydas on multiple occasions
in the context of applying the canon); id. at 1089 (referring to Diouf I,
which in turn relied on Doan).
10
For the first time, in its reply brief, the Government argues that
Jennings established a framework that “obligated” the district court to
look first to “Zadvydas’s construction of § 1231(a)” and then to consider
Diouf II’s application of the canon of constitutional avoidance to
determine whether Diouf II comported with Zadvydas. We do not
normally consider arguments raised for the first time in a reply brief. See
38 ALEMAN GONZALEZ V. BARR
We also reject the Government’s contention that
Jennings overrides our court’s conclusion that § 1231(a)(6)
authorizes release on bond—a conclusion central to Diouf
II’s application of the canon to the statute. Diouf II’s
construction of § 1231(a)(6) to require a bond hearing
plainly followed from two of our decisions that construed the
statute to encompass bond as a condition of release from
detention that the statute authorizes.
We first construed § 1231(a)(6) to allow an alien’s
release on bond in Doan v. I.N.S., 311 F.3d 1160 (9th Cir.
2002), a case we decided shortly after Zadvydas. There, we
observed that §§ 1231(a)(3) and 1231(a)(6) authorize an
alien’s release from detention on terms of supervision. We
determined that “a bond is well within the kinds of
conditions contemplated by the Supreme Court in Zadvydas,
where the Court observed that 8 C.F.R. § 241.5 establishes
conditions of release.” Id. at 1161 (citing Zadvydas,
533 U.S. at 688–89, 695–96). Pursuant to that regulation,
the government had required an alien to post bond as a
condition of release. Id. Thus, we rejected the alien’s
“contention that because a bond is not expressly listed as a
condition in the statute, imposition of any bond as a
condition of release is unlawful.” Id. at 1162. Building on
Doan, in Diouf I, we rejected the government’s argument
that “Diouf was statutorily ineligible for release on bond” as
an alien detained pursuant to § 1231(a)(6) because “[w]e
have specifically construed § 1231(a)(6) to permit release on
Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). Nevertheless,
even considering the argument, we readily reject it for the simple reason
that the Government reads into Jennings a “framework” that the Court
neither articulated, nor even hinted at.
ALEMAN GONZALEZ V. BARR 39
bond.” Diouf I, 542 F.3d at 1234 (citing Doan, 311 F.3d
at 1160).
Relying on these earlier precedents, Diouf II applied the
canon of constitutional avoidance to construe § 1231(a)(6)
not only as authorizing release on bond, but as requiring a
bond hearing in light of the constitutional issue of prolonged
detention. The Government does not acknowledge our
decisions construing § 1231(a)(6)’s allowance for release to
encompass release on bond, nor does the Government
acknowledge Diouf II’s reliance on them. Diouf II, 634 F.3d
at 1089 (citing Diouf I, 542 F.3d at 1234; 8 C.F.R.
§ 241.5(b)). Were we to accept the Government’s argument
that § 1231(a)(6) does not even authorize release on bond,
we would have to abrogate not only Diouf II, but also Doan
and Diouf I, on which Diouf II’s analysis of § 1231(a)(6)
rested. 11 But neither Doan nor Diouf I relied on the canon
to construe § 1231(a)(6), and thus Jennings does not
undercut either of them. We otherwise see nothing in either
decision that is clearly irreconcilable with Jennings and
therefore we are not free to overrule them. Miller, 335 F.3d
11
The dissent sees “no ineluctable reason” why we would need to
overrule these precedents to accept the Government’s argument, Dissent
at 65 n.12, and explains them away as merely concerned with the
government’s authority to release an alien on bond to arrive at the
conclusion that Diouf II failed to identify a plausible basis in
§ 1231(a)(6)’s text for a bond hearing requirement, id. at 63–66. We do
not understand this reasoning. Whether a statute authorizes release on
bond is the necessary predicate to whether that statute can be construed
to require such release pursuant to a bond hearing. Ignoring these
commonsense propositions, the dissent elides Diouf II’s application of
the canon to construe § 1231(a)(6) not only to provide for a bond hearing,
but as requiring a bond hearing after six months of detention to avoid the
constitutional problem of prolonged detention.
40 ALEMAN GONZALEZ V. BARR
at 893. Because Jennings does not affect these decisions, we
reject the Government’s first set of arguments.
B. Jennings’s Rejection of Construing § 1226(a) to
Require Certain Procedural Protections Does Not
Undercut Diouf II
Jennings rejected, in relevant part, the addition of two
procedural protections onto § 1226(a): (1) “periodic bond
hearings every six months,” (2) “in which the Attorney
General must prove by clear and convincing evidence that
the alien’s continued detention is necessary[.]” Id. at 847–
48. The Government contends that § 1231(a)(6)’s
“operative language directly mirrors” § 1226(a) because
both provisions provide that the government may detain an
alien, and thus Jennings forecloses construing § 1231(a)(6)
to require these protections as well. More sweepingly, the
Government suggests that Jennings rejected construing
§ 1226(a) to require a bond hearing at all, thereby also
undercutting Diouf II’s construction of § 1231(a)(6) to
require a bond hearing. We dispose readily of two of the
Government’s arguments, and then turn to the issue of
“periodic bond hearings.”
1. Jennings Does Not Invalidate Singh’s
Constitutional Due Process Burden of Proof
Holding
We reject first the Government’s reliance on Jennings’s
rejection of construing § 1226(a) to require the government
to justify an alien’s continued detention by clear and
convincing evidence. Although Jennings undoubtedly
rejected construing the statute to require such a burden, that
rejection is inapposite here.
ALEMAN GONZALEZ V. BARR 41
Contrary to the Government’s suggestion, Diouf II did
not construe § 1231(a)(6) to impose such a burden, nor did
we premise our determination that the government must
meet such a burden on construing any of the immigration
detention statutes. In Singh, we explained that, “[n]either
Casas-Castrillon, nor any other Ninth Circuit, statutory or
regulatory authority specifies the appropriate standard of
proof at a Casas[-Castrillon] bond hearing.” 638 F.3d
at 1203 (emphasis added). Rather than construe any statute,
we determined that constitutional procedural due process
required the government to meet the clear and convincing
burden of proof standard. Singh, 638 F.3d at 1203–04; see
also Kashem v. Barr, 941 F.3d 358, 380 (9th Cir. 2019)
(acknowledging Singh’s clear and convincing evidence
burden as a procedural due process standard “which applies
in a range of civil proceedings involving substantial
deprivations of liberty.”). Rodriguez III, in turn, relied on
Singh to affirm a clear and convincing burden of proof for
bond hearings held pursuant to our constructions of the
immigration detention statutes. Rodriguez III, 804 F.3d
at 1087. Thus, Jennings’s rejection of layering such a
burden onto § 1226(a) as a matter of statutory construction
cannot undercut Diouf II, nor undercut our constitutional due
process holding in Singh.
2. Jennings Did Not Reject Reading § 1226(a) to
Authorize a Bond Hearing
Second, we reject the Government’s reading of Jennings
as foreclosing construction of § 1226(a) to authorize a bond
hearing at all. Rather than focus on the Court’s § 1226(a)
analysis, the Government misdirects us to the Court’s
observation that “neither §1225(b)(1) nor §1225(b)(2) says
anything whatsoever about bond hearings.” Jennings,
42 ALEMAN GONZALEZ V. BARR
138 S. Ct. at 842. The Court, however said no such thing
about § 1226(a).
Section 1226(a) provides that the Attorney General “may
release” an alien detained pursuant to that provision “on
bond” or “on conditional parole.” 8 U.S.C. § 1226(a)(2)(A),
(B). The Court expressly acknowledged that “[f]ederal
regulations provide that aliens detained under § 1226(a)
receive bond hearings at the outset of detention.” Jennings,
138 S. Ct. at 847 (citing 8 C.F.R. §§ 236.1(d)(1),
1236.1(d)(1)). Section 1226(a) does not use the word
“hearing.” The Court, however, did not suggest that the
regulations’ provision of those bond hearings was somehow
at odds with the government’s § 1226(a) detention authority
pursuant to the statutory text. 12 Instead, the Court took issue
with our court’s imposition of “procedural protections that
go well beyond the initial bond hearing established by
existing regulations” for aliens detained pursuant to
§ 1226(a). Id. (emphasis added). The Court’s rejection of
our court’s imposition of a six-month bond hearing
requirement for aliens detained pursuant to § 1226(a)
beyond the regulations’ provision of a single bond hearing
at the outset of detention is not the same as rejecting a
construction of § 1226(a) to authorize or require bond
hearings at all. Thus, we cannot agree with one of the
12
Like the Government, the dissent focuses on the absence of the
word “hearing” in § 1231(a)(6). Dissent at 65. In doing so, the dissent
ignores the absence of that word in § 1226(a), and Jennings’s analysis
regarding that provision. Tellingly, there is nothing in Jennings that
rejects reading § 1226(a) to require a bond hearing at all, as opposed to
our erroneous reading of that provision to require a bond hearing at a
particular point in time. As we explain in Part II.B.3, Jennings’s
rejection of our court’s bond hearing requirement for § 1226(a) cannot
be fairly applied to Diouf II’s construction of § 1231(a)(6) in light of
Zadvydas.
ALEMAN GONZALEZ V. BARR 43
fundamental premises underlying the Government’s
challenge to Diouf II based on the Court’s treatment of
§ 1226(a) in Jennings.
3. Jennings’s Rejection of a Six-Month Bond
Hearing Requirement for Aliens Detained
Pursuant to § 1226(a) Does Not Undercut
Diouf II’s Construction of § 1231(a)(6)
The merits of the Government’s clear irreconcilability
challenge to Diouf II’s bond hearing requirement ultimately
come down to Jennings’s rejection of construing § 1226(a)
to contain a periodic bond hearing requirement. Reviewing
the Court’s actual reasoning in Jennings, including with
respect to all the provisions at issue there, we cannot agree
that Jennings’s treatment of § 1226(a) on this issue
undercuts Diouf II.
In the decision that Jennings reversed, we used the
phrase “periodic bond hearing” to refer to bond hearings
every six months. Rodriguez III, 804 F.3d at 1089. The
Court used the phrase “periodic bond hearing” to encompass
a bond hearing held initially at six months of detention.
Jennings, 138 S. Ct. at 850–51 (“The Court of Appeals held
that aliens detained under the provisions at issue must be
given periodic bond hearings, and the dissent agrees. . . . But
the dissent draws that 6-month limitation out of thin air. . .
[N]othing in any of the relevant provisions imposes a 6-
month time limit on detention without the possibility of
bail.”). Even if we apply the Court’s definition, we fail to
see how Jennings undercuts Diouf II’s construction of
§ 1231(a)(6) to require a bond hearing after the government
detains an alien pursuant to this statutory provision for six
months and whose release or removal is not imminent.
44 ALEMAN GONZALEZ V. BARR
Similar to our observation in the discussion of the
Government’s constitutional avoidance argument, we
observe here that Jennings repeatedly qualified that its
rejection of a “periodic bond hearing” requirement applied
to the statutory provisions at issue there. Jennings, 138 S.
Ct. at 836 (“All parties appear to agree that the text of
[§§ 1225(b), 1226(a), 1226(c)], when read most naturally,
does not give detained aliens the right to periodic bond
hearings during the course of their detention.”); id. (“[T]he
Court of Appeals for the Ninth Circuit held that detained
aliens have a statutory right to periodic bond hearings under
the provisions at issue.” (emphasis added)); id. at 844 (“[A]
series of textual signals distinguishes the provisions at issue
in this case from Zadvydas’s interpretation of § 1231(a)(6).”
(emphasis added)); id. at 850–51 (“The Court of Appeals
held that aliens detained under the provisions at issue must
be given periodic bond hearings, and the dissent agrees. . . .
But the dissent draws that 6-month limitation out of thin air.
However broad its interpretation of the words ‘detain’ and
‘custody,’ nothing in any of the relevant provisions imposes
a 6-month time limit on detention without the possibility of
bail.” (emphasis added)); id. at 851 (“Because the Court of
Appeals erroneously concluded that periodic bond hearings
are required under the immigration provisions at issue here
. . .” (emphasis added)). The Court’s repeated use of this
language strongly suggests that we should not read the
Court’s rejection of a six-month bond hearing requirement
for § 1226(a) as undercutting Diouf II’s construction of
§ 1231(a)(6) to require a bond hearing after six months of
detention when an alien’s release or removal is not
imminent.
We find that conclusion inescapable when we look at
Jennings’s careful focus on the text of the provisions at issue
there and the ways in which they differ from § 1231(a)(6)
ALEMAN GONZALEZ V. BARR 45
and thus whether Zadvydas’s reasoning could apply to the
other provisions at all. In rejecting our constructions of
§§ 1225(b)(1) and (b)(2) to contain an implicit six-month
time limit, the Court underscored that Zadvydas applied the
canon to § 1231(a)(6) based on ambiguity in the provision’s
“may be detained” language and because the provision
contained no limitation on the permissible length of
detention. Jennings, 138 S. Ct. at 843 (noting that in contrast
to §§ 1225(b)(1) and (b)(2), “Congress left the permissible
length of detention under §1231(a)(6) unclear.”); Zadvydas,
533 U.S. at 697. Rather than allow the government to
subject an alien to potentially indefinite detention, as
Jennings explained, Zadvydas construed § 1231(a)(6) to
hold that “an alien who has been ordered removed may not
be detained beyond ‘a period reasonably necessary to secure
removal’” with “six months a[s] a presumptively reasonable
period.” Jennings, 138 S. Ct. at 843 (quoting Zadvydas,
533 U.S. at 699 and citing Zadvydas, 533 U.S. at 701). As
the Court explained, detention pursuant to §§ 1225(b)(1) or
(b)(2) presented no such issue based on the clear text of those
provisions. Id. at 843–44.
The Court’s analysis of § 1226(a) in Jennings was
sparse. But the Court’s reasoning in its discussion of
§§ 1225(b)(1) and (b)(2) applies to § 1226(a) as well.
Contrary to the Government’s singular focus on §§ 1226(a)
and 1231(a)(6)’s use of the “may be detained” language, the
provisions are materially distinct in the meaning of this
language. Unlike § 1231(a)(6), “§ 1226(a) authorizes the
Attorney General to arrest and detain an alien ‘pending a
decision on whether the alien is to be removed from the
United States.’” Id. at 847 (quoting 8 U.S.C. § 1226(a)).
Thus, as a textual matter, discretionary detention pursuant to
§ 1226(a) has an end point, unlike discretionary detention
pursuant to § 1231(a)(6) absent a limiting construction.
46 ALEMAN GONZALEZ V. BARR
Pursuant to the Court’s own reasoning elsewhere in
Jennings, the six-month presumptive time limitation that
Zadvydas read into § 1231(a)(6) to address potentially
indefinite detention pursuant to that provision does not
“fairly apply” to detention pursuant to § 1226(a).
This material difference between §§ 1226(a) and
1231(a)(6) prevents us from concluding that Jennings’s
rejection of construing § 1226(a) to require a bond hearing
at six months applies to § 1231(a)(6). 13 Unlike with any of
the other immigration detention statutes at issue in Jennings,
Diouf II concerned the statutory provision at issue in
Zadvydas and adopted a definition of prolonged detention
that coincides with the presumptive six-month time limit that
Zadvydas read into that provision based on § 1231(a)(6)’s
textual ambiguity. Compare Zadvydas, 533 U.S. at 701 with
Diouf II, 634 F.3d at 1091–92 & n.13. Further echoing
13
The dissent’s analysis proceeds on the mistaken assumption that
there are no material differences between §§ 1226(a) and 1231(a)(6).
Dissent at 61–62 n.2. In doing so, the dissent does not engage with
Jennings’s reasoning and analysis regarding the statutory provisions at
issue there. Moreover, the dissent commits the converse of the error that
led the Court to reject our application of the canon to the other
immigration detention statutes. Dissent at 67 (contending that Jennings
rejected the “scaffolding upon which we had erected” additional
procedural protections for § 1226(a) detainees.). Whereas as we had
ignored the textual differences amongst the immigration detention
statutes to apply the canon to those statutes in the wake of the Court’s
application of the canon to § 1231(a)(6) in Zadvydas, the dissent
uncritically applies Jennings’s limited analysis concerning § 1226(a) to
Diouf II’s construction of § 1231(a)(6) despite the ways in which
Jennings’s reasoning shows that these provisions are materially distinct.
Jennings’s actual analysis prevents us from finding clearly
irreconcilability here. Cf. Murray, 934 F.3d at 1106 n.6 (finding clear
irreconcilability when there were “no meaningful textual difference[s]”
in the statutory text at issue there and the different provisions considered
by two intervening decisions).
ALEMAN GONZALEZ V. BARR 47
Zadvydas, Diouf II also qualified that its construction of
§ 1231(a)(6) to require a bond hearing does not apply if an
alien’s release or removal is imminent. Compare Zadvydas,
533 U.S. at 701 (“[A]n alien may be held in confinement
until it has been determined that there is no significant
likelihood of removal in the reasonably foreseeable future.”)
with Diouf II, 634 F.3d at 1092 n.13.
Although Jennings rejected our court’s reliance on
Zadvydas to construe the other immigration detention
statutes and rejected construing § 1226(a) to require a six-
month bond hearing, we cannot find in Jennings’s reasoning
a rationale that clearly undercuts Diouf II’s six-month bond
hearing requirement for aliens detained pursuant to
§ 1231(a)(6). Contrary to the dissent’s view, Jennings
shows that Zadvydas’s construction of § 1231(a)(6) provides
an “arguable statutory foundation,” 138 S. Ct. at 842, for
Diouf II’s six-month bond hearing requirement that is
entirely absent from the other immigration detention
provisions. 14
14
The dissent posits that “we have given short shrift to” the
motivations underlying the Court’s decision in Zadvydas, specifically
that the decision “was largely motivated by the fact that the possibility
of removal of the aliens before it was truly remote because the countries
to which they could be removed were highly unlikely to accept them at
any time in the foreseeable future.” Dissent at 63 n.4. That is incorrect.
As the Court has instructed, Zadvydas’s construction of § 1231(a)(6)
applies to all aliens detained pursuant to § 1231(a)(6) even if “the
constitutional concerns that influenced our statutory construction in
Zadvydas are not present for aliens” in other circumstances. Clark, 543
U.S. at 380. And the Court has rejected the notion that statutory
ambiguity disappears based on the circumstances of a given alien
detained pursuant to § 1231(a)(6). “Be that as it may, it cannot justify
giving the same detention provision a different meaning when such
aliens are involved. It is not at all unusual to give a statute’s ambiguous
48 ALEMAN GONZALEZ V. BARR
In its reply brief, the Government makes much of that
fact that Jennings called into question Zadvydas’s reading of
§ 1231(a)(6) as a “notably generous application of the
canon.” 138 S. Ct. at 843. But the Court did not overrule
Zadvydas; its statutory analysis, including application of the
canon, remain intact. 15 We therefore cannot conclude that
Diouf II’s construction of § 1231(a)(6) to require a bond
hearing after six months of detention runs afoul of Jennings.
We understand that the Government strenuously disagrees
with Diouf II’s bond hearing requirement as inconsistent
with the habeas framework that Zadvydas outlined and with
the Government’s post-Zadvydas regulations. That
disagreement, however, has nothing to do with whether
Jennings, by its own terms, undercuts Diouf II’s construction
of § 1231(a)(6). Accordingly, we reject the Government’s
second argument.
language a limiting construction called for by one of the statute’s
applications, even though other of the statute’s applications, standing
alone, would not support the same limitation.” Id. (emphasis in original).
15
In failing to account for Jennings’s reasoning regarding Zadvydas
and Diouf II’s reliance on Zadvydas’s reading of § 1231(a)(6), the
dissent characterizes the textual ambiguity in § 1231(a)(6) that Zadvydas
identified as a “narrow ambiguity.” Dissent at 63–64. We know of no
basis in our clear irreconcilability jurisprudence that would allow us to
overrule the prior decision of a three-judge panel on the basis of a reason
that appears nowhere in the intervening authority’s decision. Neither
Jennings, nor Zadvydas said anything about the scope of the ambiguity
in § 1231(a)(6) that Zadvydas identified. Contrary to the dissent’s view,
Jennings’s questioning of Zadvydas’s particular application of the canon
to that ambiguity—the adoption of a six-month time limitation that
Jennings rejected as a matter of statutory construction for the other
immigration detention statutes—says nothing about the ambiguity’s
scope.
ALEMAN GONZALEZ V. BARR 49
C. Diouf II’s Reliance on Casas-Castrillon
As a final matter, the Government contends that Diouf II
is clearly irreconcilable with Jennings based on the inter-
related nature of our decisions in Casas-Castrillon, Diouf II,
and Rodriguez III. The Government’s argument is as
follows: (1) Diouf II extended Casas-Castrillon’s
construction of § 1226(a) to individuals subject to prolonged
detention pursuant to § 1231(a)(6), (2) Rodriguez III also
applied Casas-Castrillon’s construction of § 1226(a), (3)
Jennings reversed Rodriguez III, and, thus, by implication,
(4) Jennings and Diouf II are clearly irreconcilable. We
reject these arguments for two reasons.
First, we think that the Government misreads both
Casas-Castrillon and Jennings. As we have explained,
Jennings did not invalidate construing § 1226(a) to authorize
a bond hearing at all, but rather rejected construing § 1226(a)
to require a bond hearing at six months in addition to the
government’s existing bond hearing regulations. More
importantly here, Casas-Castrillon did not construe
§ 1226(a) in the manner that the Court rejected in Jennings.
Casas-Castrillon applied the canon of constitutional
avoidance to construe § 1226(a)’s authorization for release
of an alien on bond as requiring an individualized bond
hearing when an alien is subject to prolonged detention.
535 F.3d at 951. By the time our court decided Rodriguez
III, we had applied Diouf II’s definition of prolonged
detention as detention lasting longer than six months to
§ 1226(a), which transformed Casas-Castrillon’s bond
hearing requirement into a six-month bond hearing
requirement. See Rodriguez II, 715 F.3d at 1139 (“Diouf II
strongly suggested that immigration detention becomes
prolonged at the six-month mark regardless of the
authorizing statute. . . . Even if Diouf II does not squarely
50 ALEMAN GONZALEZ V. BARR
hold that detention always becomes prolonged at six months,
that conclusion is consistent with the reasoning of Zadvydas,
Demore, Casas[-Castrillon], and Diouf II, and we so hold.”);
see also Rodriguez III, 804 F.3d at 1078 & n.7. By its terms,
Jennings invalidates that aspect of our case law construing
§ 1226(a), but does not go further. 16
Second, even if we concluded here that Jennings
overruled Casas-Castrillon, we do not see how that could
undercut Diouf II entirely. Diouf II’s construction of
§ 1231(a)(6) did not rest solely on its purported extension of
Casas-Castrillon to aliens detained pursuant to § 1231(a)(6).
Diouf II, 634 F.3d at 1086. As we have explained, Diouf II
considered a number of arguments particular to § 1231(a)(6)
itself that could not have applied to Casas-Castrillon’s
analysis of § 1226(a). Id. at 1086–92. More critically, as
Jennings’s reasoning makes clear, Casas-Castrillon
concerned a statutory provision that is materially different
from the provision at issue in Diouf II. Thus, we conclude
that Diouf II can stand irrespective of its reliance on Casas-
16
The dissent contends that in rejecting the Government’s challenge
to Diouf II based on its argument here, we have suggested that “some of
Casas-Castrillon survives Jennings[.]” Dissent at 68 n.14. Our response
is twofold. For one, we have done nothing more than explain why we
think the Government’s challenge to Diouf II based on Jennings is
wrong. We have not decided what specifically remains of Casas-
Castrillon’s statutory holding after Jennings. Second, we do not take
issue with the dissent’s correct understanding that Jennings invalidated
procedural protections that go beyond what the government’s regulations
provide. Id. However, we otherwise part ways with the dissent’s reading
of Jennings. As we have explained, Jennings’s approval of the
government’s regulations to provide bond hearings for aliens detained
pursuant to § 1226(a) necessarily assumes that § 1226(a) can be
plausibly read to authorize such hearings in the first place.
ALEMAN GONZALEZ V. BARR 51
Castrillon.17 Because we reject this final argument, we
conclude that the Government has not shown that Diouf II is
clearly irreconcilable with Jennings.
D. Additional Support for Diouf II After Jennings
Apart from rejecting the Government’s arguments, we
find additional support for our conclusion that Diouf II is not
clearly irreconcilable with Jennings based on the Third
Circuit’s decision in Guerrero-Sanchez v. Warden York
County Prison, 905 F.3d 208 (3d Cir. 2018).
In Guerrero-Sanchez, the Third Circuit considered
whether the government could subject the alien petitioner in
that case to prolonged detention without providing an
individualized bond hearing. The Third Circuit first
determined that the alien—who had a reinstated removal
order and was detained pending his pursuit of withholding-
only relief from removal—was subject to detention pursuant
to § 1231(a)(6). 18 Id. at 213–19. Having located the
17
The dissent’s reliance on Nunez-Reyes v. Holder, 646 F.3d 684,
690 (9th Cir. 2011) (en banc) misses the mark. For one, Nunez-Reyes
involved our court sitting en banc, not a three-judge panel determining
whether an earlier circuit precedent was clearly irreconcilable with the
decision of an intervening authority. We are faced with different
constraints compared with our court sitting en banc. Second, unlike in
Nunez-Reyes, there is no single “rule” on which Diouf II relied that
would warrant a conclusion that Jennings’s rejection of any aspect of
Casas-Castrillon necessarily would invalidate Diouf II in its entirety.
18
We recognize that there is a circuit split on the issue of whether
an alien subject to a reinstated removal order who pursues withholding-
only relief is subject to detention pursuant to § 1226(a) or § 1231(a)(6).
Both our court and the Third Circuit treat such detention as authorized
pursuant to § 1231(a)(6). Guerrero-Sanchez, 905 F.3d at 213–19;
Padilla-Ramirez, 882 F.3d at 830–32. In contrast, the Second and Fourth
52 ALEMAN GONZALEZ V. BARR
government’s detention authority in § 1231(a)(6), the Third
Circuit considered whether the petitioner was entitled to a
bond hearing at all. Id. at 219. To resolve that issue, the
Third Circuit considered, in relevant part, Zadvydas,
Jennings, and Diouf II.
Rejecting the government’s argument there that
“Zadvydas resolves the only ambiguity in the text of
§ 1231(a)(6),” id. at 220, the Third Circuit reasoned that
Zadvydas did “not explicitly preclude courts from construing
§ 1231(a)(6) to include additional procedural protections
during the statutorily authorized detention period, should
those protections be necessary to avoid detention that could
raise different constitutional concerns,” id. at 221 (emphasis
in original). Finding that the petitioner’s 637-day detention
without bond raised serious constitutional concerns, id., the
Third Circuit declined to address whether the petitioner’s
continued confinement violated the Due Process Clause. Id.
at 221, 223. Instead, the court asked whether the canon of
constitutional avoidance might sustain a reading of
§ 1231(a)(6) that would require the provision of a bond
hearing. Id. at 223.
The Third Circuit acknowledged Jennings’s discussion
regarding the proper invocation of the canon and Jennings’s
holding that the canon could not be applied to “other
provisions in the INA” that use the phrase “shall detain.” Id.
(“We . . . invoke the canon of constitutional avoidance so
long as ‘the statute is found to be susceptible of more than
one construction.’ (quoting Jennings, 138 S. Ct. at 842)).
Turning to § 1231(a)(6)’s text and alluding to Zadvydas, the
Circuits treat such detention as authorized pursuant to § 1226(a).
Guzman Chavez v. Hott, 940 F.3d 867, 880−82 (4th Cir. 2019); Guerra
v. Shanahan, 831 F.3d 59, 64 (2d Cir. 2016).
ALEMAN GONZALEZ V. BARR 53
Third Circuit noted that the statute’s use of the phrase “may
be detained” “invites us to apply the canon of constitutional
avoidance[.]” Id. at 223–24. “In order to avoid determining
whether the petitioner’s detention violates the Due Process
Clause,” the Third Circuit expressly “adopt[ed] the Ninth
Circuit’s limiting construction of § 1231(a)(6) that ‘an alien
facing prolonged detention under [that provision] is entitled
to a bond hearing before an immigration judge and is entitled
to be released from detention unless the government
establishes that the alien poses a risk of flight or a danger to
the community.’” Id. at 224 (quoting Diouf II, 634 F.3d
at 1092). The Third Circuit also adopted our clear and
convincing evidence standard set forth in Singh. Id. at n.12
(“The Government must meet its burden in such bond
hearings by clear and convincing evidence. (citing Singh,
638 F.3d at 1203–04)). The Third Circuit’s express and
reasoned adoption of Diouf II even after Jennings shows that
we do not break new ground in concluding that Diouf II is
not clearly irreconcilable with Jennings.
Ignoring Guerrero-Sanchez, the Government quotes
from the Sixth Circuit’s decision in Hamama v. Homan,
912 F.3d 869 (6th Cir. 2018), without any argument about
how that case should affect our clear irreconcilability
analysis here. To the extent the Government intended to
argue that Hamama should change our analysis, we reject
that argument.
In Hamama, the Sixth Circuit vacated a district court’s
class-wide preliminary injunction concerning §§ 1226(c)
and 1231(a)(6) detention claims, pursuant to which the
government was required to provide class members with
individualized bond hearings. Id. at 873–74. With respect
to those claims, the Sixth Circuit determined that 8 U.S.C.
§ 1252(f)(1), a statute that prohibits federal courts other than
54 ALEMAN GONZALEZ V. BARR
the Supreme Court from enjoining the operation of §§ 1221–
31 except with respect to an individual alien, barred
jurisdiction over class-wide injunctive relief there. Id. at
877. In rejecting the petitioners’ argument that they sought
injunctive relief pursuant to a statutory construction of the
relevant detention statutes, the Sixth Circuit determined that
“Jennings foreclosed any statutory interpretation that would
lead to what Petitioners want.” Id. at 879. In the Sixth
Circuit’s view, “the district court . . . created out of thin air a
requirement for bond hearings that does not exist in the
statute; and adopted new standards that the government must
meet at the bond hearings.” Id. at 879–80.
Hamama does not compel a different conclusion about
whether Diouf II is clearly irreconcilable with Jennings for
two reasons. First, despite remarking that “the Jennings
Court chastised the Ninth Circuit for ‘erroneously
conclud[ing] that periodic bond hearings are required under
the immigration provisions at issue here,” the Sixth Circuit
extended Jennings to § 1231 without any analysis regarding
whether Jennings’s reasoning fairly applies to that
provision. Id. at 879 (quoting Jennings, 138 S. Ct. at 850)
(emphasis added). Although we do not question Hamama’s
determination insofar as it concerns the provisions actually
at issue in Jennings, we cannot agree with the uncritical
extension of Jennings to § 1231(a)(6), particularly given our
foregoing analysis of Jennings. Second, unlike Guerrero-
Sanchez, Hamama neither acknowledged, nor grappled with
our decision in Diouf II. Therefore, we do not find Hamama
to have any persuasive value here in determining whether we
remain bound by Diouf II even after Jennings.
The dissent takes issue with our reliance on Guerrero-
Sanchez. Dissent at 63–64 & n.5. Yet, in so doing, the
dissent errs by mistaking the clear irreconcilability inquiry
ALEMAN GONZALEZ V. BARR 55
that confronts us with an invitation to opine on how we
would decide the statutory construction question that Diouf
II resolved. 19 To be clear, our reliance on Guerrero-Sanchez
concerns whether we may apply Diouf II even after
Jennings. In determining whether a prior circuit precedent
is clearly irreconcilable with an intervening authority’s
decision, we have looked to how other circuits have
addressed the issue in light of the intervening decision. See
Murray, 934 F.3d at 1107 (observing that the court’s clear
irreconcilability conclusion “comport[ed] with the decisions
of all of our sister circuits that have considered this question
after” the Supreme Court’s Gross and Nassar decisions); In
re Zappos.com, Inc., 888 F.3d 1020, 1026 n.6 (9th Cir. 2018)
(noting that the panel’s conclusion that earlier circuit
precedent was not clearly irreconcilable with an intervening
Supreme Court decision was “consistent” with sister circuit
decisions to have considered the issue). Guerrero-Sanchez
is the only reasoned decision of another circuit addressing
the relationship between Diouf II’s construction of
§ 1231(a)(6) and Jennings, and it determined that Jennings
does not undercut Diouf II’s construction. We therefore
respectfully disagree with the dissent.
19
The dissent asserts that we and Guerrero-Sanchez “mistakenly
perceive[] the narrow ambiguity in § 1231(a)(6) identified by Zadvydas”
to justify Diouf II’s construction of § 1231(a)(6). Dissent 63–64. We
have already explained that the dissent’s characterization of the
ambiguity that Zadvydas identified is not justified by Jennings or
Zadvydas. We otherwise note that the dissent’s view contravenes how
at least one other circuit understood Zadvydas prior to Jennings. See
Hernandez-Carrera v. Carlson, 547 F.3d 1237, 1249 (10th Cir. 2008)
(“In Zadvydas, the Supreme Court did not purport to ‘resolve’ the
statutory ambiguity in § 1231(a)(6) once and for all. . . . In no way, . . .
did the Court signal that its interpretation was the only reasonable
construction of § 1231(a)(6).”).
56 ALEMAN GONZALEZ V. BARR
E. The Outcome of the Clearly Irreconcilable
Analysis
We have carefully considered Jennings, Diouf II, and the
parties’ arguments as well as the dissent’s views. As we
have explained, there is some tension between Diouf II and
Jennings. But, as members of a three-judge panel, we are
not free to overrule the prior decision of a three-judge panel
merely because we sense some tension with that decision
and the decision of an intervening higher authority even if
we might have reached a different outcome than the prior
decision in light of that intervening authority. Consumer
Def., 926 F.3d at 1213 (“[M]ere tension between the cases
does not meet the higher standard of irreconcilable
conflict.”). Taken together, Jennings’s limited focus on the
provisions at issue in that case and Jennings’s analysis and
reasoning concerning those provisions compel us to
conclude that we remain bound by Diouf II’s construction of
§ 1231(a)(6). Neither the Government’s arguments, nor the
dissent have persuaded us otherwise. Accordingly, we
conclude that the district court properly determined that
Plaintiffs are likely to succeed on the merits of their
§ 1231(a)(6) statutory claims.
III. The Preliminary Injunction Is Not Otherwise
Contrary to Law
Although we have concluded that Plaintiffs are likely to
succeed on the merits of their statutory claims, the
Government contends that we must vacate the preliminary
injunction because of two other asserted legal errors. We
disagree because we find no such errors.
First, the Government argues that Zadvydas already
applied the canon to § 1231(a)(6) to prohibit indefinite
definition, pursuant to which Zadvydas specified a particular
ALEMAN GONZALEZ V. BARR 57
means by which an alien can challenge detention in a habeas
petition. The Government contends that the district court
could not re-apply the canon to § 1231(a)(6). The
Government, however, cannot properly charge the district
court with erroneously “re-applying” the canon of
constitutional avoidance to § 1231(a)(6). Indeed, the
Government acknowledges that the district court merely
followed Diouf II’s construction of § 1231(a)(6).
The Government’s true complaint is with Diouf II itself.
As in Diouf II, the Government argues here that
§ 1231(a)(6)’s text cannot be interpreted to require a bond
hearing for aliens detained under the provision. Diouf II,
634 F.3d at 1089. And, as in Diouf II, the Government
argues that its post-Zadvydas regulations adequately address
any constitutional concerns that may arise from an alien’s
continued detention pursuant to § 1231(a)(6). Diouf II,
634 F.3d at 1089–92. The Government’s attempt to
relitigate issues that Diouf II decided necessarily fails
because we have concluded that Diouf II remains controlling
precedent. Although the Government may disagree with
Diouf II’s wisdom, that disagreement does not give us
license to disregard Diouf II.
Second, the Government argues that Clark v. Martinez,
543 U.S. 371 (2005), stands for the proposition that courts
can apply only Zadvydas’s construction of § 1231(a)(6) in
all cases, and nothing more. Based on this reading of Clark,
the Government contends that the district court’s
preliminary injunction erroneously departs from the
framework Zadvydas established for federal habeas courts.
Contrary to the Government’s argument, Clark did not
announce a new rule of the canon of constitutional
avoidance, nor does Clark stand for the proposition that
Zadvydas’s construction of § 1231(a)(6) is the single
58 ALEMAN GONZALEZ V. BARR
permissible application of the canon to that provision.
Instead, in Clark, the Court held that Zadvydas’s
construction of § 1231(a)(6) “must” apply to all three
categories because “[t]he operative language of § 1231(a)(6)
. . . applies without differentiation to all three categories of
aliens that are its subject.” Clark, 543 U.S. at 378. Clark
thus requires applying § 1231(a)(6), including as judicially
construed, in the same manner for all categories of aliens
specified in the statute “without differentiation.” Id. at 378–
79. 20
Expressly acknowledging Clark, Diouf II requires the
Government to provide a bond hearing to any alien detained
under § 1231(a)(6) whose detention becomes prolonged and
whose release or removal is not imminent, Diouf II, 634 F.3d
at 1088 (citing Clark, 543 U.S. at 380–81); id. at 1084.
Consistent with Clark and Diouf II, the preliminary
injunction applies to the entire certified class of aliens that
our court treats as detained pursuant to § 1231(a)(6). 21 See
Padilla-Ramirez, 882 F.3d at 830–32. Thus, we reject the
Government’s remaining challenges to the preliminary
injunction.
20
In Clark, the Court rejected the dissent’s contrary view that the
government’s § 1231(a)(6) detention authority applies differently across
categories of aliens as a “novel interpretative approach” that “would
render every statute a chameleon, its meaning subject to change
depending on the presence or absence of constitutional concerns in each
individual case.” 543 U.S. at 382. This aspect of Clark does not support
the Government’s position.
21
The certified class includes aliens with administratively final
removal orders under 8 U.S.C. § 1228(b). The Government does not
argue that such aliens are not subject to detention pursuant to § 1231(a),
and thus has waived any such argument in this appeal. We therefore
assume that such aliens may be detained pursuant to § 1231(a)(6).
ALEMAN GONZALEZ V. BARR 59
CONCLUSION
We conclude that the district court correctly determined
that Plaintiffs are likely to succeed on their § 1231(a)(6)
statutory claims. Thus, we affirm the district court’s grant
of a preliminary injunction.
AFFIRMED.
FERNANDEZ, Circuit Judge, dissenting:
I agree with the majority that Plaintiffs’ likelihood of
success on their statutory claim turns on whether Diouf v.
Napolitano (Diouf II), 634 F.3d 1081, 1085–86 (9th Cir.
2011), remains binding law in our circuit. I also agree that
we must follow Diouf II unless a subsequent Supreme Court
case has “undercut [its] theory or reasoning . . . in such a way
that the cases are clearly irreconcilable.” Miller v. Gammie,
335 F.3d 889, 900 (9th Cir. 2003) (en banc). And I agree
that “‘is a high standard’” to meet. Close v. Sotheby’s, Inc.,
894 F.3d 1061, 1073 (9th Cir. 2018). That standard is met
here because Diouf II’s reasoning is clearly irreconcilable
with Jennings v. Rodriguez, __ U.S. __, __, 138 S. Ct. 830,
851, 200 L. Ed. 2d 122 (2018). Therefore, I respectfully
dissent.
As an intermediate appellate court, one goal of our
jurisprudence is “to preserve the consistency of circuit law.”
Miller, 335 F.3d at 900. But this laudable objective “must
not be pursued at the expense of creating an inconsistency
between our circuit decisions and the reasoning” of the
Supreme Court. Id. Deciding whether Jennings and Diouf
II are irreconcilable is not merely a matter of deciding
whether their ultimate holdings might coexist in the abstract.
60 ALEMAN GONZALEZ V. BARR
See United States v. Lindsey, 634 F.3d 541, 550 (9th Cir.
2011); see also Ortega-Mendez v. Gonzales, 450 F.3d 1010,
1019 (9th Cir. 2006). Instead, the question is whether the
Supreme Court has so “undercut the theory or reasoning” of
Diouf II “that the cases are [now] clearly irreconcilable.”
Miller, 335 F.3d at 900; see also Ne. Ohio Coal. for the
Homeless v. Husted, 831 F.3d 686, 720–21 (6th Cir. 2016).
That inquiry “requires us to look at more than [the Court’s]
surface conclusions,” and to examine whether the Court’s
“‘approach . . . [is] fundamentally inconsistent with’” our
earlier reasoning. Rodriguez v. AT & T Mobility Servs. LLC,
728 F.3d 975, 979 (9th Cir. 2013). That includes the Court’s
“‘mode of analysis.’” Miller, 335 F.3d at 900. If “the
conclusion reached in our circuit precedent [can] no longer
[be] ‘supported for the reasons stated’ in that decision,” the
circuit precedent must yield. Rodriguez, 728 F.3d at 979;
see also Ortega-Mendez, 450 F.3d at 1020. We have
frequently applied that principle and deviated from our prior
holdings. See, e.g., Murray v. Mayo Clinic, 934 F.3d 1101,
1105 (9th Cir. 2019), petition for cert. filed, 88 U.S.L.W.
3265 (U.S. Feb. 3, 2020) (No. 19-995); Rodriguez, 728 F.3d
at 981; United States ex rel. Air Control Techs., Inc. v. Pre
Con Indus., Inc., 720 F.3d 1174, 1177–78 (9th Cir. 2013);
Lindsey, 634 F.3d at 549–50; Ortega-Mendez, 450 F.3d at
1018–20; Galbraith v. County of Santa Clara, 307 F.3d
1119, 1123–25 (9th Cir. 2002).
A close examination of Diouf II and Jennings reveals
that the reasoning supporting Diouf II’s conclusion that
8 U.S.C. § 1231(a)(6) requires aliens be afforded
individualized bond hearings after six months of detention is
no longer viable. In Diouf II, we held “that an individual
facing prolonged immigration detention under 8 U.S.C.
§ 1231(a)(6) is entitled to release on bond unless the
government establishes that he is a flight risk or a danger to
ALEMAN GONZALEZ V. BARR 61
the community.” Diouf II, 634 F.3d at 1082. We extended
procedural protections that we had previously granted to
aliens facing prolonged detention under 8 U.S.C. § 1226(a) 1
to those detained under § 1231(a)(6), because otherwise
their “prolonged detention . . . would raise ‘serious
constitutional concerns.’” Diouf II, 634 F.3d at 1086. We
thus “appl[ied] the canon of constitutional avoidance and
construe[d] § 1231(a)(6) as requiring an individualized bond
hearing, before an immigration judge, for aliens facing
prolonged detention.” Id. Jennings is clearly irreconcilable
with Diouf II’s reasoning, both with regard to our application
of the canon of constitutional avoidance and our reliance on
Casas-Castrillon.2
1
Casas-Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942, 949–
51 (9th Cir. 2008).
2
The majority mentions several times that Jennings, __ U.S. at __,
138 S. Ct. at 836, 842, 843–44, 850–51, expressly limited its holding to
the statutory provisions that were before it (i.e., 8 U.S.C. §§ 1225(b),
1226(a), (c)). But that does “not deprive it of all persuasive force.” Univ.
of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 351, 133 S. Ct. 2517,
2527, 186 L. Ed. 2d 503 (2013). Thus, to the extent that the majority
relies upon that limitation to justify its reconciling of Jennings, __ U.S.
at __, 138 S. Ct. at 851, and Diouf II, 634 F.3d at 1086, I disagree. As
we have said, “the issues decided by the higher court need not be
identical in order to be controlling.” Miller, 335 F.3d at 900; see also
Gahagan v. USCIS, 911 F.3d 298, 302 (5th Cir. 2018) (“That two
decisions involve different statutes is not dispositive.”). For example, in
Murray, 934 F.3d at 1105–07, we determined that the reasoning of one
of our earlier circuit cases, Head v. Glacier Nw. Inc., 413 F.3d 1053,
1063–65 (9th Cir. 2005), was clearly irreconcilable with subsequent
Supreme Court cases. Neither of those Supreme Court cases addressed
the particular statutory provision that was before us in either Murray or
Head. Murray, 934 F.3d at 1105–07; see also Nassar, 570 U.S. at 351–
53, 133 S. Ct. at 2528; Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 173–
75, 129 S. Ct. 2343, 2348–49, 174 L. Ed. 2d 119 (2009). Nevertheless,
62 ALEMAN GONZALEZ V. BARR
Jennings establishes that we misused the canon of
constitutional avoidance in Diouf II. In Jennings, the
Supreme Court explained that the canon should be employed
only “‘after the application of ordinary textual analysis,’”
when “‘the statute is found to be susceptible of more than
one construction.’” Jennings, __ U.S. at __, 138 S. Ct. at
842; see also Clark v. Martinez, 543 U.S. 371, 385, 125 S.
Ct. 716, 726, 160 L. Ed. 2d 734 (2005). Diouf II engaged in
no textual analysis of § 1231(a)(6): we did not identify a
textual ambiguity in the statute regarding a bond hearing
requirement, nor did we identify any plausible basis in the
statutory text for such a hearing. See Diouf II, 634 F.3d
at 1089; see also Clark, 543 U.S. at 379, 381, 125 S. Ct.
at 723, 724. Diouf II’s application of the constitutional
avoidance canon without first analyzing the text of the
statute or identifying a relevant ambiguity is clearly
irreconcilable with Jennings. Instead of properly applying
the canon of constitutional avoidance to § 1231(a)(6), Diouf
II simply grafted Casas-Castrillon’s reasoning as to
§ 1226(a) detainees onto § 1231(a)(6) detainees. Diouf II,
634 F.3d at 1089. We did not explain why that was
appropriate, notwithstanding our recognition that the text of
§ 1226(a) expressly mentions bond, while the text of
§ 1231(a)(6) does not. See id.; cf. Nassar, 570 U.S. at 352,
133 S. Ct. at 2528 (applying the same analysis when there is
no “meaningful textual difference” between the two statutes
at issue). That approach in Diouf II is irreconcilable with
Jennings.
we adopted the Supreme Court’s reasoning because there was “no
meaningful textual difference” between the statutes in the circumstances
at issue there. Murray, 934 F.3d at 1106 n.6; see also id. at 1106. The
same is true here. Thus, that Jennings and Diouf II analyzed different
statutes is not dispositive of their irreconcilability.
ALEMAN GONZALEZ V. BARR 63
The majority seeks support in the Third Circuit’s
decision that Diouf II’s reasoning remains sound because
“[t]he Supreme Court has already determined [in Zadvydas 3]
that the text of § 1231(a)(6) is ambiguous as to the due
process protections that it provides,” and that § 1231(a)(6)
could therefore be construed to require bond hearings.
Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d
208, 223–24 (3d Cir. 2018). However, like Diouf II and the
majority, the Third Circuit mistakenly perceived the narrow
ambiguity in § 1231(a)(6) identified by Zadvydas, in the
particular context presented there, as essentially equivalent
to a general determination that § 1231(a)(6) is “ambiguous
as to . . . due process” overall. Guerrero-Sanchez, 905 F.3d
at 223. 4 Our adopting the Third Circuit’s approach would
effectively allow courts to decide constitutional issues sub
silentio, without ever having to “find[] a statute
unconstitutional as applied.” Clark, 543 U.S. at 384, 125 S.
Ct. at 726. Instead, we should follow the procedure
described by Jennings: a court must identify “‘competing
plausible interpretations of [the] statutory text,’” in the
specific context of the matter at hand, before applying the
canon of constitutional avoidance. See Jennings, __ U.S.
3
Zadvydas v. Davis, 533 U.S. 678, 697, 121 S. Ct. 2491, 2502, 150
L. Ed. 2d 653 (2001) (“the word ‘may’ is ambiguous”).
4
By the way, it seems to me that the Third Circuit, and we, have
given short shrift to the fact that the Court’s opinion in Zadvydas was
largely motivated by the fact that the possibility of removal of the aliens
before it was truly remote because the countries to which they could be
removed were highly unlikely to accept them at any time in the
foreseeable future. Thus, detention was indefinite and potentially
permanent. See Zadvydas, 533 U.S. at 684–86, 690–91, 695–96, 121 S.
Ct. at 2496–97, 2498–99, 2502. Even so, the Court has dubbed the
decision in Zadvydas “notably generous.” Jennings, __ U.S. at __, 138
S. Ct. at 843; see also id. at __, 138 S. Ct. at 843–44 (the Court did not
expand that form of generosity).
64 ALEMAN GONZALEZ V. BARR
at __, 138 S. Ct. at 843; Clark, 543 U.S. at 379, 125 S. Ct.
at 723. Here, that would require us to identify an ambiguity
in the text of § 1231(a)(6) that produces a plausible reading
of the statute as requiring bond hearings. None is apparent
to me. 5
The majority decides that Diouf II conformed with
Jennings in interpreting the text of § 1231(a)(6) because it
noted that prior circuit precedent 6 and agency regulations7
had recognized the requirement of a bond as a reasonable
condition 8 of supervised release pursuant to the statute. See
Diouf II, 634 F.3d at 1089. But I fail to see how that
reasoning or line of authority supplies the necessary
plausible interpretation of the text of § 1231(a)(6) as
requiring a bond hearing. Those authorities arose out of
Congress’s explicit command to the Attorney General to
prescribe regulations governing the terms of an alien’s
supervised release after his initial 90-day detention.
8 U.S.C. § 1231(a)(3). The Department of Homeland
5
For example, the Court’s determination in Zadvydas, 533 U.S. at
697, 121 S. Ct. at 2502, that § 1231(a)(6) was ambiguous as to whether
the agency had discretion to indefinitely detain aliens does not support
the independent conclusion that § 1231(a)(6) is also ambiguous as to
whether the agency must afford those aliens individualized bond
hearings before an Immigration Judge when they have been detained for
six months. See Jennings, __ U.S. at __, 138 S. Ct. at 847–48 (explaining
that logic in the context of § 1226(a)); cf. Diouf II, 634 F.3d at 1086,
1091–92, 1092 n.13.
6
Diouf v. Mukasey (Diouf I), 542 F.3d 1222, 1234 (9th Cir. 2008);
see also Doan v. INS, 311 F.3d 1160, 1162 (9th Cir. 2002).
7
8 C.F.R. § 241.5(a)–(b).
8
8 U.S.C. § 1231(a)(3).
ALEMAN GONZALEZ V. BARR 65
Security 9 dutifully promulgated pertinent regulations, and
one of the release conditions it adopted was that an alien may
be required to post a bond in order to ensure his compliance
with the terms of his supervision order. 8 C.F.R. § 241.5(b);
see also Doan, 311 F.3d at 1162. But the agency’s proper
exercise of its discretion 10 to impose bond as a condition of
release pursuant to § 1231(a)(3), combined with our decision
that § 1231(a)(6) allows the agency to do so, 11 does not
produce the conclusion that § 1231(a)(6) plausibly requires,
as a matter of statutory construction, the bond hearings
sought by the Plaintiffs. See Morales-Izquierdo, 486 F.3d
at 493. 12 As I have previously noted, neither a bond nor a
hearing is mentioned in the text of § 1231(a)(6). 13 Because
our court has yet to identify a plausible interpretation of the
text of § 1231(a)(6) that would require a bond hearing, I
disagree with the majority’s conclusion that Diouf II applied
9
See City & County of San Francisco v. USCIS, 944 F.3d 773, 781
n.2 (9th Cir. 2019).
10
See Morales-Izquierdo v. Gonzales, 486 F.3d 484, 492 (9th Cir.
2007) (en banc).
11
Doan, 311 F.3d at 1161–62.
12
And because Diouf I, 542 F.3d at 1234, and Doan, 311 F.3d
at 1162, simply recognized the agency’s authority to impose bond as a
condition of release, I see no ineluctable reason that those cases would
have to be overturned if we overturned Diouf II, 634 F.3d at 1086, 1089.
13
I do not mean to suggest that the statute forbids the agency from
promulgating regulations that would allow bond hearings before an
Immigration Judge. See Encino Motorcars, LLC v. Navarro, __ U.S. __,
__, 136 S. Ct. 2117, 2124–25, 195 L. Ed. 2d 382 (2016); see also
Morales-Izquierdo, 486 F.3d at 493. But that does not make it any less
problematic for a court to “simply read a bond hearing requirement into
the statute.” See Rodriguez v. Robbins, 715 F.3d 1127, 1143 (9th Cir.
2013) (characterizing the Diouf line of cases).
66 ALEMAN GONZALEZ V. BARR
the canon of constitutional avoidance to choose between
competing plausible interpretations of § 1231(a)(6), as
required by Jennings. Rather, its reasoning is irreconcilable
with Jennings.
Diouf II’s holding was also premised on its implicit
assumption that the language of § 1226(a) and § 1231(a)(6)
was sufficiently similar that Casas-Castrillon’s analysis of
§ 1226(a) could be grafted onto § 1231(a)(6). Diouf II,
634 F.3d at 1086, 1089; see also, e.g., Murray, 934 F.3d
at 1106 & n.6. Diouf II’s reasoning in this regard has
likewise been fatally undermined because that aspect of
Casas-Castrillon is itself clearly irreconcilable with
Jennings.
In Casas-Castrillon, we held “that the government may
not detain a legal permanent resident . . . for a prolonged
period [pursuant to 8 U.S.C. § 1226(a)] without providing
him a neutral forum in which to contest the necessity of his
continued detention.” Casas-Castrillon, 535 F.3d at 949.
Our holding was premised on our conclusion “that prolonged
detention without adequate procedural protections would
raise serious constitutional concerns.” Id. at 950. But we
did not decide the constitutional issue in Casas-Castrillon.
Id. Rather, we pointed out that § 1226(a) “provides . . .
authority for the Attorney General to conduct a bond hearing
and release the alien on bond or detain him if necessary to
secure his presence at removal.” Id. at 951; see also 8 U.S.C.
§ 1226(a)(2) (an alien “may [be] release[d]” on bond or
parole). We then held that “[b]ecause the prolonged
detention of an alien without an individualized
determination of his dangerousness or flight risk would be
‘constitutionally doubtful,’ . . . § 1226(a) must be construed
as requiring the Attorney General to provide the alien with
such a hearing.” Casas-Castrillon, 535 F.3d at 951. But we
ALEMAN GONZALEZ V. BARR 67
identified no ambiguity in § 1226(a) regarding whether a
bond hearing was required. Id. at 950–51. Instead, we
essentially rewrote the statute to make it so. Id. That is
precisely the procedure rejected by the Supreme Court in
Jennings. See Jennings, __ U.S. at __, 138 S. Ct. at 843; see
also Clark, 543 U.S. at 378, 125 S. Ct. at 722–23; id. at 381,
125 S. Ct. at 724.
In Jennings, the Supreme Court rejected as implausible
our reading of § 1226(a) “to limit the permissible length of
an alien’s detention without a bond hearing.” Jennings, __
U.S. at __, 138 S. Ct. at 842. The Supreme Court held “that
there is no justification for any of the procedural
requirements that the Court of Appeals layered onto
§ 1226(a) without any arguable statutory foundation.” Id.
Nonetheless, the Supreme Court acknowledged that aliens
detained pursuant to § 1226(a) were entitled, by dint of
agency regulations, to “bond hearings at the outset of
detention.” Id. at __, 138 S. Ct. at 847. The Supreme Court
thus struck down the additional procedural devices we had
created, which went “well beyond the initial bond hearing
established by existing regulations—namely, periodic bond
hearings every six months in which the Attorney General
must prove by clear and convincing evidence that the alien’s
continued detention is necessary.” Id. at __, 138 S. Ct.
at 847–48. The scaffolding upon which we had erected
those excess procedures for § 1226(a) detainees was Casas-
Castrillon and its progeny. See Rodriguez v. Robbins,
804 F.3d 1060, 1084–85, 1086–89 (9th Cir. 2015) (“The
district court’s decision regarding the § 1226(a) subclass
was squarely controlled by our precedents,” most
prominently, Casas-Castrillon), rev’d, Jennings, __ U.S.
at __, 138 S. Ct. at 836. Because Jennings struck down all
procedural protections for § 1226(a) detainees beyond those
provided by regulation, Jennings dispelled the excess
68 ALEMAN GONZALEZ V. BARR
procedures conjured up by Casas-Castrillon, 535 F.3d
at 950–51. 14 Thus, Diouf II’s reasoning that § 1231(a)(6)
detainees were entitled to individualized bond hearings
simply because Casas-Castrillon had conjured those for
§ 1226(a) detainees is clearly irreconcilable with Jennings.
Diouf II contains no other reasoning supporting its
conclusion that an individualized bond hearing is required
for § 1231(a)(6) detainees. See Diouf II, 634 F.3d at 1086,
1089. In light of the analysis above, the majority contradicts
Jennings by relying on Diouf II. See Close, 894 F.3d
at 1073; cf. Nunez-Reyes v. Holder, 646 F.3d 684, 690 (9th
Cir. 2011) (en banc) (overruling one case likewise overrules
the holdings of those cases that followed its rule). In other
words, there is no basis for clinging to a mode of analysis
that the Court has plainly held is plainly wrong. Rather, we
should vacate the grant of the preliminary injunction.
Thus, I respectfully dissent.
14
The majority suggests that some of Casas-Castrillon survives
Jennings: that is, the majority reads Jennings to invalidate only the
requirement that a hearing be conducted after six months of detention,
which it sees as narrower than Casas-Castrillon’s holding, which
required an individualized bond hearing after an alien’s “prolonged
detention.” See Casas-Castrillon, 535 F.3d at 951. But I take the
Supreme Court at its word, and it told us in Jennings that we had erred
in providing § 1226(a) detainees with “procedural protections that go . . .
beyond [those] . . . established by existing regulations.” Jennings, __
U.S. at __, 138 S. Ct. at 847. Because the hearings prescribed in Casas-
Castrillon are procedural protections that are not “established by existing
regulations,” I disagree with the majority that Casas-Castrillon’s hearing
requirement survived Jennings.