UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT LEXIS HERNANDEZ AVILEZ, No. 20-16142 Petitioner-Appellee, D.C. No. v. 3:19-cv-08296- CRB MERRICK B. GARLAND, Attorney General; ALEJANDRO N. MAYORKAS, in his official capacity; ORDER AND TAE D. JOHNSON, in his official AMENDED capacity; DAVID W. JENNINGS, OPINION Respondents-Appellants, and WENDELL ANDERSON, in his official capacity, Respondent.

Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding

Argued and Submitted October 22, 2021 San Francisco, California

Filed September 8, 2022 Amended June 6, 2023 2 HERNANDEZ AVILEZ V. GARLAND

Before: Mary H. Murguia, Chief Judge, and Marsha S. Berzon and Carlos T. Bea, Circuit Judges.

Order; Opinion by Chief Judge Murguia; Concurrence by Judge Berzon; Concurrence by Judge Bea

SUMMARY*

Habeas/Immigration

The panel filed: (1) an order amending the opinion filed on September 8, 2022, and published at 48 F.4th 915 (9th Cir. 2022), denying on behalf of the court a petition for rehearing en banc, and indicating that no further petitions for rehearing en banc would be entertained; and (2) an amended opinion vacating the district court’s grant of habeas relief and remanding in a case in which Lexis Hernandez Avilez challenged her immigration detention. In the amended opinion, the panel held that a noncitizen of the United States—who initially was 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 this court on a petition for review. Hernandez Avilez petitioned for habeas relief after being in immigration detention for over a year without a bond * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. HERNANDEZ AVILEZ V. GARLAND 3

hearing. During her initial removal proceedings, she was subject to mandatory detention under 8 U.S.C. § 1226(c) (“Subsection C”) due to a conviction. Thus, she was not statutorily entitled to a bond hearing. However, in Casas- Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008), this court held that once a noncitizen’s immigration case reaches judicial review, the authority for holding a Subsection C detainee shifts to 8 U.S.C. § 1226(a) (“Subsection A”), which does entitle a noncitizen to a bond hearing. Accordingly, Hernandez Avilez argued she was entitled to a bond hearing because she had filed a petition for review. The Government conceded that Hernandez Avilez would be entitled to a bond hearing under Casas-Castrillon, but argued that Casas-Castrillon is clearly irreconcilable with Jennings v. Rodriguez, 138 S. Ct. 830 (2018). The district court rejected that contention and ordered the Government to provide Hernandez Avilez a bond hearing. Under Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc), a three-judge panel may depart from circuit precedent only if the precedent is clearly irreconcilable with the reasoning or theory of intervening higher authority. Here, the panel observed that the Supreme Court’s decision in Jennings does not directly address the question in Casas-Castrillon—when, if ever, mandatory detention under Subsection C ends. However, the panel explained that Jennings’s reasoning makes clear that Subsection A and Subsection C apply to discrete categories of noncitizens, and not to different stages of a noncitizen’s legal pr