Javier Martinez v. Lowell Clark

                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

JAVIER MARTINEZ,                             No. 21-35023

             Petitioner-Appellant,      D.C. No. 2:20-cv-
  v.                                       00780-TSZ

LOWELL CLARK, Warden,
Northwest Detention Center;                   OPINION
NATHALIE ASHER, Tacoma Field
Office Director, United States
Immigration and Customs
Enforcement; ALEJANDRO N.
MAYORKAS, Secretary, Department
of Homeland Security; MERRICK B.
GARLAND, Attorney General,

             Respondents-Appellees.

       On Remand from the United States Supreme Court
          Argued and Submitted September 24, 2024
                  San Francisco, California
                   Filed December 27, 2024

Before: Jacqueline H. Nguyen, Eric D. Miller, and Patrick
              J. Bumatay, Circuit Judges.

                Opinion by Judge Bumatay;
               Concurrence by Judge Bumatay
2                       MARTINEZ V. CLARK


                          SUMMARY *


       Immigration Immigration/Habeas/Detention

    On remand from the United States Supreme Court, the
panel affirmed the district court’s denial of Javier Martinez’s
habeas petition challenging his immigration detention. The
panel held that federal courts have jurisdiction to review the
Board of Immigration Appeals’ determination that an alien
is a “danger to the community,” but concluded that the BIA
did not abuse its discretion or err in concluding that Martinez
was such a danger.
    Martinez was detained under 

(c), which
provides for mandatory detention of aliens with certain
criminal convictions. After Martinez filed a habeas petition,
the district court ordered a bond hearing, reasoning that
Martinez’s prolonged detention violated due process. An
immigration judge denied bond, the BIA affirmed, and
Martinez brought the instant habeas petition. The district
court asserted jurisdiction, but denied habeas relief.
    This panel previously held that the district court lacked
jurisdiction to review the “dangerousness” determination
under 

(e), which bars review of a
“discretionary judgment” regarding detention. The Supreme
Court granted certiorari, vacated this court’s judgment, and
remanded for consideration of its intervening decision in
Wilkinson v. Garland, 

 (2024), which clarified



*
 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


that the application of a statutory standard to an established
set of facts is a reviewable mixed question of law and fact.
    The panel concluded that Wilkinson compels the
conclusion that application of the “dangerousness” standard
is a reviewable mixed question. The panel explained that
“dangerousness” is not so different from the standard the
Supreme Court found reviewable in Wilkinson or the
standard this court later found reviewable in Zia v. Garland,

 (9th Cir. 2024), because the BIA’s caselaw
sets out nine factors an IJ may consider before making the
ultimate determination.
    Next, the panel concluded that the applicable standard of
review is the abuse-of-discretion standard, explaining that
Wilkinson recognized that a “deferential standard of review”
applies where a mixed question requires a court to immerse
itself in facts. Here, the district court applied the de novo
standard of review, but the court determined that that remand
would be futile because the district court denied under a
higher standard of review.
   On the merits, the panel concluded that the BIA did not
abuse its discretion, explaining that the BIA properly
considered the relevant factors, and reasonably believed that
Martinez’s equities did not outweigh the evidence of
dangerousness.
    The panel also rejected Martinez’s arguments that the
BIA applied the wrong burden of proof and that the BIA’s
failure to consider alternatives to detention violated due
process or was legal error.
    Concurring, Judge Bumatay wrote that this case should
never have gotten to this point because federal courts
actually lack authority to order bond hearings for aliens
4                     MARTINEZ V. CLARK


mandatorily detained under § 1226(c). However, egged on
by this court’s wayward precedent, the district court believed
that due process required a bond hearing. That ruling also
led to violation of Congress’s directive that “[n]o court may
set aside any action or decision. . . regarding the detention or
release of any alien or . . . denial of bond or parole.” 8 U.S.C
§ 1226(e). Judge Bumatay wrote that, because this court’s
precedent requires courts to defy Congress’s authority and
assume an aggrandized role in immigration decisions, the
court should change it.



                         COUNSEL

Robert Pauw (argued), Gibbs Houston Pauw, Seattle,
Washington; Matt Adams, Glenda M. Aldana Madrid, Leila
Kang, and Aaron Korthuis, Northwest Immigrant Rights
Project, Seattle, Washington; Lee Gelernt, American Civil
Liberties Union Foundation Immigrants' Rights Project,
New York, New York; Hannah Schoen and Cody Wofsy,
American Civil Liberties Union Foundation Immigrants'
Rights Project, San Francisco, California; for Petitioner-
Appellant.
Dana M. Camilleri (argued), Trail Attorney; Patrick J. Glen;
Anthony P. Nicastro, Assistant Director; Office of
Immigration Litigation; Brian M. Boynton, Principal Deputy
Assistant Attorney General; Civil Division, United States
Department of Justice, Washington, D.C.; for Respondents-
Appellees.
Michael K.T. Tan and Judy Rabinovitz, American Civil
Liberties Union Foundation Immigrants' Rights Project,
New York, New York; Michael Kaufman, American Civil
                    MARTINEZ V. CLARK                  5


Liberties Union Foundation, Los Angeles, California;
Ahilan Arulanantham, UCLA School of Law, Center for
Immigration Law and Policy, Los Angeles, California;
Jayashri Srikantiah, Stanford Law School, Immigrants'
Rights Clinic, Stanford, California; Sean Commons and
Alexandria Ruiz, Sidley Austin LLP, Los Angeles,
California; Ava Guo, Sidley Austin LLP, Washington, D.C.;
for Amici Curiae ACLU Foundation, ACLU Foundation of
Southern California, and UCLA School of Law Center for
Immigration Law and Policy.
Genna E. Beier and Francisco Ugarte, San Francisco Public
Defender's Office, San Francisco, California; Kelsey A.
Morales and Raha Jorjani, Alameda County Public
Defender's Office, Oakland, California; for Amici Curiae
Alameda County Public Defender's Office, Asian Americans
Advancing Justice— Asian Law Caucus, Immigrant Legal
Defense, Pangea Legal Services, and the San Francisco
Public Defender's Office.
Matt Adams and Aaron Korthuis, Northwest Immigrant
Rights Project, Seattle, Washington; Trina A. Realmuto,
National Immigration Litigation Alliance, Brookline,
Massachusetts; for Amicus Curiae the Northwest Immigrant
Rights Project and The National Immigration Litigation
Alliance.
6                    MARTINEZ V. CLARK


                         OPINION

BUMATAY, Circuit Judge:

    Earlier we concluded that the district court lacked
jurisdiction to review a Board of Immigration Appeals
(“BIA”) determination that an alien was a “danger to the
community” for immigration detention purposes. We relied
on 

(e), which precludes judicial review of a
“discretionary judgment” regarding the detention of an alien.
See Martinez v. Clark, 

 (9th Cir. 2022),
cert. granted, judgment vacated, 

 (2024).
The dangerousness determination was discretionary, we
said, because it was “fact-intensive” and required “the
equities to be weighed.” 

 (simplified). No
immigration law defined “dangerousness,” and the BIA
offered nine factors to consider in making the determination.

 at 1228 & n.1 (citing In re Guerra, 

 (BIA 2006)). So BIA precedent appeared to only provide
“malleable guidance” that did not demonstrate what was
necessary to “cross[] the line into dangerousness.” 

 at
1229–30. Thus, we held that federal courts lacked sufficient
standards to review the agency’s judgment. 

    After our decision, the Supreme Court decided
Wilkinson v. Garland, 

 (2024). Wilkinson
clarified the boundaries of judicial review in the immigration
context. It explained that “[t]he application of a statutory
legal standard . . . to an established set of facts is a
quintessential mixed question of law and fact” and is
reviewable. 

. The Supreme Court then granted the
petition for certiorari here, vacated our judgment, and
remanded for further consideration of Wilkinson’s impact on
                       MARTINEZ V. CLARK                         7


this case. See Martinez v. Clark, 

 (2024)
(mem.).
    After Wilkinson, the determination whether an alien is
“dangerous” for immigration-detention purposes is a mixed
question of law and fact and is reviewable as a “question of
law.” See Singh v. Holder, 

 (9th Cir.
2011) (“Although § 1226(e) restricts jurisdiction in the
federal courts . . . [,] it does not limit habeas jurisdiction over
constitutional claims or questions of law.”); cf. Guerrero-
Lasprilla v. Barr, 

 (2020) (holding, under
an analogous provision governing judicial review in
immigration cases, that “questions of law” include mixed
questions of law and fact); Wilkinson, 

(“Today’s decision announces nothing more remarkable
than the fact that this Court meant what it said in Guerrero-
Lasprilla.”).
    Under Wilkinson, the district court’s review of the BIA’s
“dangerousness” determination is for abuse of discretion,
and our review of the district court’s denial of habeas relief
is de novo. Because the district court initially denied
Martinez’s habeas petition under de novo review we
conclude that it would have also properly denied the petition
under the correct abuse-of-discretion standard. We also
affirm the denial of Martinez’s two other habeas claims.
                                I.
    Javier Martinez, a native of Costa Rica and citizen of
Nicaragua, entered the United States in 1987 as a conditional
resident. Three years later, he became a lawful permanent
resident. In 2000, he was convicted of conspiring to
distribute cocaine under 

 and 846 and
sentenced to 20 months in prison. The next year, after his
release from prison, the Department of Homeland Security
8                     MARTINEZ V. CLARK


(“DHS”) commenced removal proceedings against
Martinez.    An immigration judge later granted him
withholding of removal.
    Twelve years after his release from prison, in 2013,
Martinez was once again arrested for trafficking cocaine
under 

 and 846. After his arrest, a federal
magistrate judge released Martinez on his own recognizance.
About five months later, Martinez pleaded guilty to the drug
charge. He was released for three months before sentencing.
At the sentencing hearing, the district court noted that it was
“impressed” with Martinez’s ability to control himself and
to “avoid the pitfalls” while he was “out on bond.” The
district court observed that it would not have released
Martinez (as the magistrate judge did), but that Martinez did
well with the opportunity. Martinez remained drug-free and
complied with all the conditions of his release. Based on his
efforts at rehabilitation, the district court sentenced Martinez
to 60 months in prison. The district court also allowed
Martinez to self-report to prison, and he did so a month later.
While in prison, Martinez earned his GED, took vocational
classes, and attended Bible studies. He also participated in
a drug-treatment program and received counseling for his
drug addiction.
    In early 2018, DHS reopened Martinez’s removal
proceedings based on his 2013 conviction. After his release
in April 2018, Martinez was taken directly into DHS custody
and held without bond. After about six months, Martinez
received a bond hearing, but the presiding immigration judge
determined that he did not have jurisdiction to release
Martinez because he was subject to mandatory detention
under 

(c).
                     MARTINEZ V. CLARK                     9


    In November 2018, Martinez filed a federal habeas
petition seeking immediate release or, in the alternative, an
individualized bond hearing before an immigration judge.
The district court ordered that Martinez receive a bond
hearing. Martinez v. Clark, 

, at *1 (W.D.
Wash. Nov. 13, 2019). The district court reasoned that
Martinez’s prolonged mandatory detention under § 1226(c)
violated due process. Id. To comply with due process, the
district court ordered “the government to show by clear and
convincing evidence that [Martinez] presents a flight risk or
a danger to the community at the time of the bond hearing.”
Id.
    In November 2019, an immigration judge held a bond
hearing for Martinez and denied him bond. The immigration
judge ruled that the government had met its burden of
showing by clear and convincing evidence that Martinez was
a danger to the community and a flight risk. In making the
dangerousness determination, the immigration judge
evaluated Martinez’s mitigating evidence, such as his
successful pre-incarceration release on bond, the district
court’s statements during sentencing, his efforts at
rehabilitation, his family ties, and his strong community
support. Still, the immigration judge found Martinez’s two
convictions for drug trafficking to be dispositive. The
immigration judge also determined that conditional parole
was not appropriate for Martinez.
    On appeal, the BIA ruled that Martinez was ineligible for
release on bond based on the “totality of the evidence.” The
BIA agreed with the immigration judge that the government
sustained its burden to show that Martinez was a danger to
the community by clear and convincing evidence. In doing
so, the BIA emphasized that it had “long acknowledged the
dangers associated with the sale and distribution of drugs”
10                    MARTINEZ V. CLARK


and found that Martinez’s repeated drug-trafficking
convictions provided “strong evidence” that he was
dangerous.      The BIA also acknowledged Martinez’s
rehabilitation efforts, but it found that his good behavior for
“the approximately 7 years he has been detained in either
prison or DHS custody d[id] not indicate that he will not
revert to his old habits of drug use and trafficking upon his
release.” The BIA did not reach the immigration judge’s
alternative conclusion that Martinez posed a flight risk.
    Martinez then brought this federal habeas petition under

, seeking release from DHS detention.
Martinez raised three claims: (1) clear and convincing
evidence did not show he is a danger to the community;
(2) the BIA applied an incorrect burden of proof at his
hearing; and (3) the BIA failed to consider alternatives to
detention, such as conditional parole. The district court
asserted jurisdiction over all three claims and denied habeas
relief.
    Martinez now appeals. We have jurisdiction over the
appeal under 

 and § 2253(a). We review
the denial of a habeas petition de novo, Padilla-Ramirez v.
Bible, 

 (9th Cir. 2017), any underlying
legal questions de novo, and factual questions for clear error,
Singh, 638 F.3d at 1202–03.
                              II.
    We first address Martinez’s claim that the BIA erred in
concluding that clear and convincing evidence showed that
he was a “danger to the community.” We have jurisdiction
over the claim and conclude that the BIA didn’t abuse its
discretion in considering Martinez a danger.
                     MARTINEZ V. CLARK                     11


                             A.
    We begin with jurisdiction. Martinez was mandatorily
detained under 

(c), so 

(e)
governs any review of his detention. That section provides:

       The Attorney General’s discretionary
       judgment regarding the application of
       [§ 1226] shall not be subject to review. No
       court may set aside any action or decision by
       the Attorney General under this section
       regarding the detention or release of any alien
       or the grant, revocation, or denial of bond or
       parole.

(e). Under § 1226(e), an alien may not
“challeng[e] a ‘discretionary judgment’ by the Attorney
General or a ‘decision’ that the Attorney General has made
regarding his detention or release” in federal court. Jennings
v. Rodriguez, 

 (2018) (plurality opinion)
(simplified).
    The Ninth Circuit has clarified the federal courts’
jurisdiction over “constitutional claims or questions of law”
regarding immigration detention under § 1226. Singh, 

. We ruled that § 1226(e) did not strip federal
courts of “traditional habeas jurisdiction.” Id. (relying on
Demore v. Kim, 

 (2003)). We explained that
§ 1226(e) “restricts jurisdiction only with respect to the
executive’s exercise of discretion” but that discretionary
judgment does not include constitutional claims or questions
of law. Id.
   So we must decide whether the BIA’s determination that
Martinez is a “danger to the community” is a “discretionary
12                    MARTINEZ V. CLARK


judgment” or a “question of law.” For this question, we look
to Wilkinson, which clarified the distinction between
questions of law, mixed questions of law and fact, and
questions of fact in the immigration context.
    Wilkinson examined the “exceptional and extremely
unusual hardship” requirement for cancellation of removal
under 

(a)(2). 

. If an alien
shows this “hardship” to a U.S.-citizen or permanent-
resident family member, then the alien may be eligible for
discretionary cancellation of removal. 

 at 212–13.
Wilkinson called the hardship determination the “first step”
in the cancellation-of-removal determination, which allows
the IJ to go to “step two” and decide whether to exercise
discretion to cancel removal in a particular case. 

.
    Cancellation of removal also has both a jurisdiction-
stripping and jurisdiction-restoring provision. Section
1252(a)(2)(B)(i) strips courts of jurisdiction to review
certain judgments by the Attorney General, including
“judgments regarding the granting of discretionary relief” of
“cancellation of removal.” 

 (simplified). Then
§ 1252(a)(2)(D) restores judicial review for “constitutional
claims or questions of law” involved in cancellations of
removal. Id.
    The Court ruled that the “hardship” determination fell
within the jurisdiction-restoring provision. Under BIA
precedent, the “hardship” standard requires a showing that a
relative “would suffer hardship that is substantially different
from or beyond that which would ordinarily be expected to
result from their removal.” Id. at 215 (simplified). To
evaluate that, an IJ must consider a “range of factors,
including the age and health of the qualifying family
member.” Id. (simplified). But ultimately, “[a]ll hardship
                      MARTINEZ V. CLARK                     13


factors [are] considered in the aggregate” to make the
determination. Id. (simplified).
    The hardship determination, the Court said, was not
“discretionary,” id. at 218, because the application of the
statutory “hardship” standard to a “given set of facts presents
a mixed question of law and fact.” Id. at 221. To get there,
the Court reasoned that the “hardship” standard resembled
the “due diligence” standard for equitable tolling, which the
Court already established was a “mixed question.” Id. at 222
(noting that the “due diligence” standard requires a court to
“evaluate whether a noncitizen was adequately
conscientious in his pursuit of a filing deadline”). Although
both standards “require[d] close engagement with the facts,”
they each represented a mixed question because a court had
to “assess whether an IJ correctly applied the statutory
standard to a given set of facts.” Id. at 221. And under the
Court’s precedent, “[m]ixed questions of law and fact, even
when they are primarily factual, fall within the statutory
definition of ‘questions of law’ in § 1252(a)(2)(D).” Id. at
225. So both the “due diligence” standard and the
“hardship” standard are questions of law. And we’ve
recently said that the “good faith marriage” determination
under 8 U.S.C. § 1186a(c) also constitutes a legal standard.
Zia v. Garland, 

, 1201–02 (9th Cir. 2024).
    In contrast, “factual question[s] raised in an application
for discretionary relief” remain unreviewable. Wilkinson,

. The jurisdiction-stripping provision still
precludes federal courts from reviewing “underlying factual
determinations” in a claim for cancellation of removal, like
“credibility, the seriousness of a family member’s medical
condition, or the level of financial support a noncitizen
currently provides.” 

. Likewise, factfinding
underlying a denial of immigration relief, such as whether
14                    MARTINEZ V. CLARK


an alien intentionally lied on a state driver’s license form, is
unreviewable. See Patel v. Garland, 

(2022). And the decision whether to revoke approval of a
visa petition based on a sham-marriage determination is a
“discretionary decision” that falls within the jurisdiction-
stripping provision of § 1252(a)(2)(B)(ii). Bouarfa v.
Mayorkas, No. 23-583, slip op. at 1–2 (Dec. 10, 2024).
    With this background in mind, we turn to the
“dangerousness” determination. To determine whether an
alien is a danger to the community or a risk of flight, an IJ
weighs nine factors under BIA precedent. Guerra, 

. The nine factors an IJ “may” consider
“include any or all of the following:”

       (1) whether the alien has a fixed address in
       the United States; (2) the alien’s length of
       residence in the United States; (3) the alien’s
       family ties in the United States, and whether
       they may entitle the alien to reside
       permanently in the United States in the
       future; (4) the alien’s employment history;
       (5) the alien’s record of appearance in court;
       (6) the alien’s criminal record, including the
       extensiveness of criminal activity, the
       recency of such activity, and the seriousness
       of the offenses; (7) the alien’s history of
       immigration violations; (8) any attempts by
       the alien to flee prosecution or otherwise
       escape from authorities; and (9) the alien’s
       manner of entry to the United States.

 And “[t]he Guerra factor most pertinent to assessing
dangerousness” is “the alien’s criminal record, including the
                      MARTINEZ V. CLARK                     15


extensiveness of criminal activity, the recency of such
activity, and the seriousness of the offenses.” Singh, 

 (quoting Guerra, 

).
     Wilkinson compels the conclusion that application of the
“dangerousness” standard is a reviewable mixed question.
Even though what constitutes “dangerousness” is malleable
and involves agency discretion, Wilkinson instructs that this
is still a legal standard so long as federal courts can “assess
whether an IJ correctly applied the statutory standard to a
given set of facts.”          

.          Indeed,
“dangerousness” is not so different from the “exceptional
and extremely unusual hardship” standard or the “good faith
marriage” standard. All provide multiple factors for an IJ to
consider before making the ultimate determination. For
instance, the “hardship” determination includes eight factors
“proper” for an IJ to “consider.” See In re Monreal-
Aguinaga, 

, 63–64 (BIA 2001)
(simplified) (listing factors such as age, family ties, length
of residence in United States, health, political and economic
conditions in country of removal, others means of adjusting
status, involvement in community, and immigration history).
Likewise, the “good faith marriage” determination involves
a review of the parties’ combined finances, length of
cohabitation, birth certificates for any children, and “other
evidence deemed pertinent to the director.” 

(e)(2); see also Zia, 

. These
multifactorial lists provide no guidance on what combination
of factors constitutes “exceptional and extremely unusual
hardship” or a “good faith marriage.” In fact, they grant an
IJ broad discretion to weigh the listed factors and add any
factors not mentioned or discount those that are less
probative.       The same goes for the “dangerousness”
determination. It is also a mixed question of fact and law.
16                   MARTINEZ V. CLARK


    The government suggests that the “dangerousness”
determination is closer to the discretionary “step two”
determination of the cancellation-of-removal process, which
Wilkinson says is unreviewable. It is true that Martinez is
detained under the mandatory detention provision of
§ 1226(c), which requires detention for certain “criminal
aliens.” As we have said, “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).” Avilez v. Garland, 

, 535 (9th Cir.
2023). And so, as a statutory matter, the detention process
under § 1226(c) doesn’t compare exactly to the cancellation-
of-removal process, which requires the IJ to find the
requisite “hardship” at step one and to exercise discretion at
step two. Under § 1226(c), if an alien is convicted of a
qualifying offense, then detention is automatic and
nondiscretionary.
    But the district court here ordered the bond hearing under
the Due Process Clause. Martinez, 

, at
*1. The district court ruled that “due process requires the
government to show by clear and convincing evidence that
the detainee presents a flight risk or a danger to the
community at the time of the bond hearing.” 

 That
determination did not leave room for an added layer of
agency discretion; if the BIA found that Martinez was not
dangerous, it would have had to release him. See id.; see
also Singh, 

 (ordering release if the BIA did
not find, by clear and convincing evidence, that alien was
dangerous or a flight risk). So the “dangerousness”
determination is unlike the fully discretionary second step
under § 1229b(b)(1) and is reviewable.
                     MARTINEZ V. CLARK                    

.
    Because we have jurisdiction here, we must next decide
the standard of review for a “dangerousness” determination.
The district court concluded that “the ultimate determination
of whether th[e] facts amount to clear and convincing
evidence of flight risk and dangerousness should be
reviewed de novo.” Wilkinson, however, recognized that a
mixed question that “requires a court to immerse itself in
facts . . . suggests a more deferential standard of review.”

. Zia confirmed that “our review is
deferential” for a “primarily factual question,” and it held
that, “under a deferential standard,” the BIA did not err in
concluding the alien failed to establish a good-faith
marriage. 

.
    The same principle applies here. When questions require
a close review of agency-found facts, like the
“dangerousness” determination, we review for an abuse of
discretion. Cf. Konou v. Holder, 

 (9th
Cir. 2014) (applying abuse of discretion standard to
determination of whether an alien was convicted of a
particularly serious crime) (simplified). That deference
reflects Congress’s decision to cabin judicial review in
removal proceedings. See Patel, 

 (“Congress
has sharply circumscribed judicial review of the
discretionary-relief process.”). And we tread especially
carefully in this area where Congress sought to eliminate
judicial review.
                             2.
   As explained, the district court erroneously reviewed
Martinez’s habeas petition de novo instead of for abuse of
18                   MARTINEZ V. CLARK


discretion. But because the district court denied habeas
relief under a higher standard of review, remand to the
district court to review the BIA’s “dangerousness”
determination for abuse of discretion would be futile. We
conclude that had the district court applied the proper
standard of review, it would have correctly determined that
the BIA did not abuse its discretion in finding Martinez
dangerous.
    Under an abuse of discretion standard, “we cannot
reweigh evidence . . . [but] can [only] determine whether the
BIA applied the correct legal standard.” Konou, 

 (simplified). The BIA relied on the “totality of the
evidence” to determine that Martinez’s repeated convictions
for conspiracy to distribute cocaine, which occurred thirteen
years apart, provided compelling evidence that he was a
danger to the community. The BIA pointed to prior
decisions in which it has highlighted the destructive effects
of narcotics. For example, the BIA has concluded,

       Illicit narcotic drugs sold in the United States
       ruin or destroy the lives of many American
       citizens each year. Apart from the
       considerable number of people in this
       country who die of overdoses of narcotics or
       who become the victims of homicides related
       to the unlawful traffic of drugs, many others
       become disabled by addiction to heroin,
       cocaine, and other drugs.

In re Y-L-, 

 (BIA 2002).
Distributing deadly drugs is a clear danger to the community.
And the BIA reasonably believed that Martinez’s
rehabilitative efforts and recent compliance with the law
                     MARTINEZ V. CLARK                    19


didn’t outweigh this “strong evidence” of danger. Thus, the
BIA properly considered the factors set forth in Guerra, and
it did not abuse its discretion in finding, by clear and
convincing evidence, that Martinez was a danger to the
community.
                            III.
    We now turn to Martinez’s next claim—that the BIA
erred by applying the wrong burden of proof. We have
jurisdiction over this claim as it’s a “question[] of law.”
Singh, 

. Martinez contends that the BIA
failed to apply the correct clear-and-convincing burden of
proof and review all the evidence in the record. He also
alleges that the BIA impermissibly shifted the burden of
proof to him. We disagree.
    Generally, in the absence of any red flags, we take the
BIA at its word. For example, “[w]hen nothing in the record
or the BIA’s decision indicates a failure to consider all the
evidence,” we will rely on the BIA’s statement that it
properly assessed the entire record. Cole v. Holder, 

 (9th Cir. 2011). We do not require the BIA to
“discuss each piece of evidence submitted.” 

 Similarly,
we accept that the BIA “applied the correct legal standard”
if the BIA “expressly cited and applied [the relevant
caselaw] in rendering its decision.” See Mendez-Castro v.
Mukasey, 

 (9th Cir. 2009). But when there
is an indication that something is amiss, like if the BIA
“misstat[es] the record” or “fail[s] to mention highly
probative or potentially dispositive evidence,” we do not
credit its use of a “catchall phrase” to the contrary. Cole,
659 F.3d at 771−72.
   There are no such red flags here. At the outset of its
decision, the BIA properly noted that the government bore
20                    MARTINEZ V. CLARK


the burden to establish by clear and convincing evidence that
Martinez is a danger to the community. It then reviewed the
record, including Martinez’s drug trafficking convictions,
and concluded there was “strong evidence” of his
dangerousness.        It credited Martinez’s significant
rehabilitation efforts, such as keeping a clean record while
on pretrial release and in prison. But it concluded, under
“the totality of the evidence,” that the serious nature of
Martinez’s convictions and his history of reoffending, even
after several years of sobriety, rendered him a danger to the
community. Contrary to Martinez’s claim, the BIA
explicitly noted the evidence of his release on his own
recognizance and his self-report to prison during his 2013
criminal proceedings. Thus, we conclude that the BIA
applied the correct burden of proof here.
                              IV.
    Lastly, we consider Martinez’s third claim that the BIA
had to consider alternatives to detention, such as conditional
parole, before denying him bond. Martinez suggests that the
BIA must import consideration of conditions of release from
the criminal pretrial release context, such as GPS
monitoring, drug testing, and counseling, to the immigration
custody context. See 

(c). In Martinez’s
view, failing to do so violates due process or constitutes legal
error—over which we have jurisdiction. See Singh, 

. We reject Martinez’s argument.
    Due process does not require immigration courts to
consider conditional release when determining whether to
continue to detain an alien under § 1226(c) as a danger to the
community. In Singh, we addressed the due process
requirements for bond hearings for aliens subject to
prolonged detention. 638 F.3d at 1203−10. We held that
                     MARTINEZ V. CLARK                     21


due process requires immigration courts to make
contemporaneous records of bond hearings, id. at 1200, and
the government to prove dangerousness or risk of flight by
clear and convincing evidence, id. at 1200, 1205. We then
noted that these “greater procedural protections” are enough
to safeguard an alien’s due process rights and “justify [the]
denial of bond.” Id. at 1207.
    Nowhere in Singh did we suggest that due process also
mandates that immigration courts consider release
conditions or conditional parole before deciding that an alien
is a danger to the community. Singh offers the high-water
mark of procedural protections required by due process, and
we see no reason to extend those protections any further
here.
    Relying on Hernandez v. Sessions, 

 (9th
Cir. 2017), Martinez argues that conditions of release must
be considered to ensure that detention is reasonably related
to the government’s interest in protecting the public. That
case is inapplicable here. In Hernandez, the plaintiff aliens
complained that neither their financial circumstances nor
alternative release conditions were considered before their
bond decisions were made, even though they were
determined not to be dangerous or flight risks. 872 F.3d at
984−85, 990−91. While the government had a legitimate
interest in protecting the public and ensuring appearances in
immigration proceedings, we held that detaining an indigent
alien without consideration of financial circumstances and
alternative release conditions was “unlikely to result” in a
bond determination “reasonably related to the government’s
legitimate interests.” 

. The analysis is different
here. Cf. 

 (relying on absence of dangerousness or
flight-risk determination in procedural due process analysis).
22                     MARTINEZ V. CLARK


Martinez was found to be a danger to the community, so his
detention is clearly “reasonably related” to the government’s
interest in protecting the public. See 

.
                              V.
     For these reasons, we affirm the denial of the petition.
     AFFIRMED.


BUMATAY, Circuit Judge, concurring:

    While I now agree that our court has jurisdiction to
review whether an alien is a “danger to the community”
under binding Supreme Court precedent, we never should
have gotten to this point. That’s because we had no authority
to order a new bond hearing for a “criminal alien[]” subject
to mandatory detention under 

(c). That
provision provides that an alien who commits certain
offenses “shall” be taken into custody.            

(c)(1). Instead, egged on by some of our wayward
precedent, the district court believed that due process
requires that Javier Martinez receive a bond hearing (and be
potentially released) simply because his removal proceeding
had become “prolonged.” See Martinez v. Clark, 

, at *1 (W.D. Wash. 2019). But this defies
Congress’s clear command and assumes an outsized role for
federal courts over immigration-detention decisions. Simply
put, the Due Process Clause doesn’t grant federal courts the
freedom to refashion statutory detention requirements in the
immigration context.
   And the due process ruling here leads to a second
problem—violation of Congress’s directive that “[n]o court
may set aside any action or decision by the Attorney
                      MARTINEZ V. CLARK                      23


General . . . regarding the detention or release of any alien or
. . . denial of bond.” 

(e). But under the
district court’s due process directive, federal courts are
empowered to do just that—set aside the Executive’s
detention decisions. For instance, if federal courts disagreed
with the BIA’s assessment of Martinez’s dangerousness,
then presumably the next step would have been to order his
release. But we circumvent Congress’s will by claiming that
authority. And our precedent supporting this expansive
authority over detention decisions is wrong. Namely, Singh
v. Holder, 

 (9th Cir. 2011), held that
“[a]lthough § 1226(e) restricts jurisdiction in the federal
courts in some respects, it does not limit habeas jurisdiction
over constitutional claims or questions of law.” But that is
too broad. Nothing allows us to completely ignore
§ 1226(e)’s direct command.
    These errors flow from a flawed conception of due
process and our role in immigration proceedings. We ought
to “defer to the political branches” on immigration decisions
because they are “of a character more appropriate to either
the Legislature or the Executive than to the Judiciary.”
Rodriguez Diaz v. Garland, 

, 1215 (9th Cir.
2022) (Bumatay, J., concurring) (quoting Mathews v. Diaz,

 (1976)). That’s because “any policy toward
aliens is vitally and intricately interwoven with
contemporaneous policies . . . of foreign relations, the war
power, and the maintenance of a republican form of
government.” Demore v. Kim, 

 (2003)
(quoting Mathews, 

 n.17). We should have
respected our limited role in this area. Yet we deepen the
affront to the separation of powers by aggrandizing our
authority.
24                   MARTINEZ V. CLARK


                             I.
    Despite Congress’s decision to detain all criminal aliens
during removal proceedings, the district court believed that
due process requires bond hearings (and potential release)
for an alien whose detention becomes “prolonged.” It
reasoned, “despite the statutory language of 

(c), the Ninth Circuit offers ‘grave doubts that any
statute that allows for arbitrary prolonged detention without
any process is constitutional.’” Martinez v. Clark, 

, *1 (W.D. Wash. Nov. 13, 2019) (quoting
Rodriguez v. Marin, 

 (9th Cir. 2018)). But
that’s wrong.
    Due process doesn’t require bond hearings for criminal
aliens mandatorily detained under § 1226(c)—even for
prolonged periods. “As a matter of text, structure, and
history, Congress may authorize the government to detain
removable aliens throughout their removal proceedings.”
Rodriguez Diaz, 53 F.4th at 1214 (Bumatay, J., concurring).
And “[n]othing in the Due Process Clause requires
individualized bond determinations beyond what Congress
has established.” Id. at 1214. That’s because, in the
immigration context, “Congress regularly makes rules that
would be unacceptable if applied to citizens.” Demore, 

 (simplified). So while mandatory detention may
not be allowed for criminal purposes and most civil contexts,
immigration stands apart from those areas.
    Because Congress possesses “considerable authority
over immigration matters,” mandatory detention under
§ 1226(c) has been upheld “as a constitutionally valid aspect
of the deportation process.” Id. at 523 (simplified). Thus,
when detention is for an “immigration purpose,” “Congress
may grant the Executive the authority to detain aliens during
                     MARTINEZ V. CLARK                    25


removal proceedings—with or without bond hearings.”
Rodriguez Diaz, 53 F.4th at 1218 (Bumatay, J., concurring).
“And so long as the government follows reasonable,
individualized determinations to ensure that the alien is
properly in removal proceedings, due process does not
require more bond hearings even after a prolonged period.”
Id. (emphasis added).
    Absent any allegation that the extended detention here is
unrelated to an immigration purpose, the mere fact that
detention is “prolonged” doesn’t alter the statutory
framework. Indeed, in our circuit, the median processing
time for an immigration case to reach a merits determination
is 39 months. Does that mean that any immigration
proceeding appealed in the Ninth Circuit would
automatically invalidate mandatory detention under
§ 1226(c)? Why should our delays in processing cases
impact Congress’s design?
    And dicta from Rodriguez v. Marin isn’t a basis to rule
otherwise. First, the Rodriguez order was written after the
Supreme Court expressly rejected our view that immigration
statutes must allow for individualized bond hearings after
detentions become prolonged. 

. Second,
Rodriguez’s musings were mainly justified by a criminal law
ruling. 

 at 256–57 (quoting United States v. Salerno, 

 (1987)). But that’s irrelevant when it comes
to immigration law. See Demore, 

. Third,
Rodriguez cites Zadvydas v. Davis, 

(2001), for the proposition that “[c]ivil detention” violates
due process outside of “certain special and narrow
nonpunitive circumstances.” Rodriguez, 

(simplified). But Zadvydas only holds that immigration
detention must “serve its purported immigration purpose,”
Demore, 

, and there is no argument that the
26                    MARTINEZ V. CLARK


detention of criminal aliens serves no immigration purpose.
Finally, Rodriguez quotes at length Justice Breyer’s
dissenting opinion in Jennings v. Rodriguez, 

(2018). Rodriguez, 

 (quoting Jennings, 

) (Breyer, J., dissenting). But respectfully, a
dissenting view is no reason to upset congressional will.
    In contrast, Rodriguez ignored the long history of
deference to the political branches in administering the
immigration system. See Demore, 538 U.S. at 538–40
(O’Connor, J., concurring); Rodriguez Diaz, 53 F.4th at
1215–18 (Bumatay, J., concurring). Thus, no extra bond
hearing was due here.
                              II.
    Second, our erroneous precedent leads to a head-on clash
with Congress’s immigration design. In Singh, we asserted
jurisdiction over any “constitutional question” or “question
of law” involving an individualized detention “decision”
despite the clear prohibition of § 1226(e). Singh, 

. Recall that § 1226(e) provides that “[t]he Attorney
General’s discretionary judgment regarding the application
of this section shall not be subject to review” and “[n]o court
may set aside any action or decision by the Attorney General
under this section regarding the detention or release of any
alien or the grant, revocation, or denial of bond or parole.”
    The Court has been clear on the meaning of this
provision: § 1226(e) precludes an alien from challenging “a
‘discretionary judgment’ by the Attorney General or a
‘decision’ that the Attorney General has made regarding his
detention or release.” Demore, 

 (simplified).
In other words, the jurisdiction-stripping provision prohibits
federal courts from overturning the individualized
“decision” to detain a particular alien. But the Court also
                     MARTINEZ V. CLARK                    27


affirmed review of limited constitutional questions—the
provision doesn’t preclude “challenges [to] the statutory
framework that permits [the alien’s] detention without bail.”

 (reviewing a “constitutional challenge to the
legislation authorizing . . . detention without bail”). So a
challenge to the “statutory framework” of immigration
detention “as a whole,” such as whether there is a statutory
right to periodic bond hearings, remains reviewable. See
Jennings, 583 U.S. at 295–96.
    But Singh improperly expanded our authority beyond
that. In that case, an alien challenged the result of his
individualized bond hearing, arguing that the BIA violated
his procedural due process right by using the wrong burden
of proof. Singh, 

. Singh agreed with the
alien and ordered the alien’s “release” from detention unless
the BIA afforded him a new bond hearing under the court’s
newly fashioned due process standards. 

. Singh
justified this broad authority based on “traditional habeas
jurisdiction” and claimed that § 1226(e) “restricts
jurisdiction only with respect to the executive’s exercise of
discretion.” Id. It then broadly held that § 1226(e) doesn’t
“limit habeas jurisdiction over constitutional claims or
questions of law.” Id.; see also Leonardo v. Crawford, 

 (9th Cir. 2011) (asserting jurisdiction over
an individual alien’s claims for constitutional and legal
error).
    Singh didn’t properly respect Congress’s will here.
Contrary to Singh’s claim, Demore didn’t restore
“traditional habeas jurisdiction” under § 1226(e). Demore
only held challenges to the statutory scheme of detention
under § 1226(c) were reviewable. This makes some textual
sense because the statutory scheme isn’t within the
Executive’s “discretionary judgment,” “action,” or
28                    MARTINEZ V. CLARK


“decision.” Demore, 

. But § 1226(e) still
precludes any challenges to “operational decisions” rather
than the “legislation establishing the framework for those
decisions.” Id. at 517 (simplified). Thus, Demore reinforced
that Congress stripped our jurisdiction over individualized
detention decisions. It didn’t open the door to the type of
judicial review that Singh asserted.
     Even if Demore permits constitutional challenges to the
statutory framework of detention, the Court has never
endorsed judicial review over all constitutional or legal
questions. After all, not all constitutional or legal challenges
target the detention’s statutory framework. Many, including
the ones raised by Martinez here, just appeal BIA decisions
in an individual alien’s bond hearing, such as whether the
BIA employed the proper burden of proof or correctly
analyzed a legal standard. Not only did Singh assert
jurisdiction over these “operational decisions,” it also
claimed the extraordinary authority to “release” any alien
detained contrary to our court’s wishes. 

.
Claiming the authority to release individual aliens directly
contradicts § 1226(e)’s express prohibition on “sett[ing]
aside” a “decision” of the Executive “regarding the detention
. . . of any alien.” Yet Singh failed to grapple with this
explicit statutory prohibition. Indeed, “[i]t cannot seriously
be maintained . . . that ‘no court’ does not really mean ‘no
court,’ or that a decision of the Attorney General may not be
‘set aside’ in actions filed under the Immigration and
Naturalization Act but may be set aside on habeas review.”
Demore, 

 (O’Connor, J., concurring). We
should have given those words their plain meaning and
recognized that we lack authority to set aside an
individualized decision to detain a particular alien—no
matter whether it involves a question of law or not.
                   MARTINEZ V. CLARK                  29


                         ***
    Because our precedent requires us to defy Congress’s
authority and assume an aggrandized role in immigration
decisions, we should change it.