Hernandez Avilez v. Garland

Noncitizens subject to mandatory detention under § 1226(c) are not statutorily eligible for release on bond during the judicial phase of the proceedings, except under the narrow circumstances defined by § 1226(c)(2).

Hernandez Avilez petitioned for habeas relief after being in immigration detention for over a year without a bond hearing. Citing Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008), Hernandez Avilez argued she was no longer detained under 8 U.S.C. § 1226(c) because her removal order was judicially stayed pending a decision on her petition for review of the decision denying her CAT relief, meaning she was now detained under § 1226(a) and thus entitled to a bond hearing. The Government argued that noncitizens detained under § 1226(c) remain detained under that subsection throughout removal proceedings and any subsequent judicial review, citing Jennings v. Rodriguez, 138 S. Ct. 830 (2018). Because the reasoning in the two cases was “clearly irreconcilable,” the Court held that Jennings abrogated that portion of Casas-Castrillon. Although Jennings did not specify the relevant time period of removal proceedings, Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008), provides that detention authority under § 1226(a) continues through judicial review, and the Court determined this reasoning likewise applies to § 1226(c). The Court concluded that the Government’s authority to detain noncitizens under § 1226(c) applies during the administrative and judicial phases of removal proceedings. Therefore, noncitizens subject to mandatory detention under § 1226(c) are not statutorily eligible for release on bond during the judicial phase of the proceedings, except under the narrow circumstances defined by § 1226(c)(2). Vacated and remanded.