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 8 U.S.C. § 1226(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 8 U.S.C. § 1226(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, 601 U.S. 209 (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, 112 F.4th 1194 (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