FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JAVIER MARTINEZ, No. 21-35023 Petitioner-Appellant, D.C. No. v. 2:20-cv-00780- TSZ LOWELL CLARK, Warden, Northwest Detention Center; NATHALIE ASHER, Tacoma Field Office Director, OPINION United States Immigration and Customs Enforcement; ALEJANDRO MAYORKAS, Secretary, Department of Homeland Security; MERRICK B. GARLAND, Attorney General, Respondents-Appellees. Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding Argued and Submitted March 7, 2022 Seattle, Washington Filed June 15, 2022 Before: Jacqueline H. Nguyen, Eric D. Miller, and Patrick J. Bumatay, Circuit Judges. Opinion by Judge Bumatay 2 MARTINEZ V. CLARK SUMMARY * Immigration/Habeas/Detention Affirming in part and vacating in part the district court’s denial of Javier Martinez’s habeas petition challenging his immigration detention, and remanding, the panel held that: 1) federal courts lack jurisdiction to review the discretionary determination of whether a particular noncitizen poses a danger to the community such that he is not entitled to bond; and 2) the district court correctly denied Martinez’s claims that the Board of Immigration Appeals erred or violated due process in denying bond. Martinez was detained under 8 U.S.C. § 1226(c), which provides for mandatory detention of noncitizens with certain criminal convictions throughout their removal proceedings. After Martinez filed a habeas petition, the district court ordered that he receive a bond hearing, reasoning that his prolonged mandatory detention violated due process. An IJ denied bond, and the BIA affirmed, concluding that the government sustained its burden to show that Martinez was a danger to the community by clear and convincing evidence. Martinez then brought the instant habeas petition, seeking release. The district court asserted jurisdiction over Martinez’s claims, but denied habeas relief. The panel held that the district court lacked jurisdiction to review the determination that Martinez posed a danger to the community, concluding that dangerousness is a discretionary determination covered by the judicial review * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MARTINEZ V. CLARK 3 bar of 8 U.S.C. § 1226(e). That section bars federal courts from reviewing “discretionary judgment[s]” regarding the detention under § 1226. In concluding that the dangerousness determination is discretionary, the panel observed that the only guidance as to what it means to be a “danger to the community” is an agency-created multi- factorial analysis with no clear, uniform standard for what crosses the line into dangerousness. Thus, the panel explained it was left without standards sufficient to permit meaningful judicial review. Moreover, the panel explained that dangerousness is a fact-intensive inquiry that requires the equities be weighed, and like the other determinations this court has found to be discretionary (such as whether a crime is “violent or dangerous,” or whether hardship is “exceptional and extremely unusual”), is a subjective question that depends on the identity and the value judgment of the person or entity examining the issue. The panel further explained that the …
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