Avilez v. Barr

Background

Lexis Hernandez Avilez, a native and citizen of Mexico, was brought to the United States as an infant and became a lawful permanent resident in 2000. In 2005, she was convicted of assault and sentenced to 16 years in prison. After her release, she was transferred directly to Immigration and Customs Enforcement custody at Yuba County Jail and had remained in immigration detention since November 2018.

An immigration judge denied Avilez’s application for protection under the Convention Against Torture and ordered her removed to Mexico. The Board of Immigration Appeals affirmed and entered a final removal order. Avilez then filed a petition for review in the Ninth Circuit, which remained pending; the Ninth Circuit stayed her removal while it considered that petition. Avilez also had a motion to reopen her removal proceedings pending.

While in custody, Avilez realized she was a transgender woman and was diagnosed with gender dysphoria. ICE transferred her to the Prairieville Detention Center in Texas for treatment, and the parties agreed that she was receiving treatment there. After the transfer, she sought emergency relief concerning treatment, detention location, release, and a bond hearing. The court denied the emergency request because ICE was taking steps to provide appropriate treatment and because the court lacked jurisdiction over claims based on where she was detained. In the later briefing, Avilez focused on her request for a bond hearing.

Legal framework

Section 1226 of Title 8 governs detention of noncitizens during removal proceedings. Section 1226(c) requires detention of certain noncitizens who have committed specified crimes. Section 1226(a), by contrast, allows discretionary detention. The petition argued that Avilez was entitled to a bond hearing under Section 1226(a) or the Fifth Amendment’s due-process clause.

Court’s analysis

The court relied on the Ninth Circuit’s decision in Casas-Castrillon v. Department of Homeland Security. Under that decision, mandatory detention under Section 1226(c) ends when the Board of Immigration Appeals issues a final removal order. If the noncitizen then seeks judicial review, detention is governed by Section 1226(a), which requires an individualized bond hearing because prolonged detention without considering danger or flight risk would raise constitutional concerns.

The government argued that the Supreme Court’s decision in Jennings v. Rodriguez made Casas-Castrillon no longer controlling. The court rejected that argument. It concluded that Jennings could reasonably be interpreted consistently with the Ninth Circuit’s rule that detention authority switches from Section 1226(c) to Section 1226(a) after a final removal order. Because the Ninth Circuit precedent was not clearly irreconcilable with the Supreme Court decision, the district court held that it remained bound to apply the Ninth Circuit precedent.

Ruling

The court held that Avilez’s detention was authorized under Section 1226(a), which entitled her to a bond hearing. The petition for a writ of habeas corpus was granted, and the court ordered that Avilez be provided a bond hearing before an immigration judge within 15 days of the order’s filing.