Ninth Circuit Decision in Avilez v. Garland on Prolonged Detention

Today the Ninth Circuit issued a decision in Avilez v. Garland, a case addressing prolonged detention in the wake of the U.S. Supreme Court’s decision in Jennings v. Rodriguez. 

The government argued in the case that the Ninth Circuit’s earlier 2008 decision (in Casas-Castrillon v. Department of Homeland Security) which held that a noncitizen is entitled to a bond hearing when the case reaches the stage of review before the circuit court is “clearly irreconcilable” with the Jennings decision.

The three-judge panel, which included two separate concurring opinions, agreed, concluding that an immigrant initially subject to mandatory detention under 8 U.S.C. § 1226(c) is not entitled to a bond hearing under 8 U.S.C. § 1226(a) while awaiting a decision from the circuit court on a petition for review. To the extent that Casas-Castrillon so held, Jennings abrogates that portion of the decision.

In his concurrence, Judge Berzon urged the court to consider rehearing the case in banc to further clarify the doctrine.

The petitioner-appellee was represented by the San Francisco Public Defender’s Office and Lakin & Wille LLP.

IE