Esteban Aleman Gonzalez v. William Barr

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESTEBAN ALEMAN GONZALEZ; No. 18-16465

EDUARDO GUTIERREZ SANCHEZ,

Plaintiffs-Appellees, D.C. No.

3:18-cv-01869-

v. JSC

WILLIAM P. BARR, Attorney General;

CHAD WOLF, Acting Secretary, OPINION

Department of Homeland Security;

JAMES MCHENRY, Director,

Executive Office for Immigration

Review, Department of Justice;

CHRISTOPHER A. SANTORO, Acting

Chief Immigration Judge, Executive

Office for Immigration Review,

Department of Justice; DAVID W.

JENNINGS, Field Office Director for

the San Francisco Field Office of

U.S. Immigration and Customs

Enforcement, Department of

Homeland Security; DAVID O.

LIVINGSTON, Sheriff, Contra Costa

County; KRISTI BUTTERFIELD,

Facility Commander, West County

2 ALEMAN GONZALEZ V. BARR

Detention Facility, Contra Costa

County, *

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of California

Jacqueline Scott Corley, Magistrate Judge, Presiding

Argued and Submitted November 13, 2019

Pasadena, California

Filed April 7, 2020

Before: FERDINAND F. FERNANDEZ, MILAN D.

SMITH, JR., and ERIC D. MILLER, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.;

Dissent by Judge Fernandez

*

Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Chad

Wolf is automatically substituted as the Acting Secretary of the U.S.

Department of Homeland Security and Christopher A. Santoro is

automatically substituted as the Acting Chief Immigration Judge of the

Executive Office for Immigration Review.

ALEMAN GONZALEZ V. BARR 3

SUMMARY **

Immigration

In an action where Plaintiffs—who represent a certified

class of aliens who are subject to final orders of removal and

are detained pursuant to 8 U.S.C. § 1231(a)(6) within the

Ninth Circuit—challenged their prolonged detention without

an individualized bond hearing, the panel affirmed the

district court’s preliminary injunction requiring the

Government to provide each class member detained for six

months or longer with a bond hearing before an immigration

judge where the burden is on the Government to justify

continued detention.

Class members are detained under 8 U.S.C.

§ 1231(a)(6), which authorizes the Government to detain

aliens subject to final orders of removal, or reinstated final

orders of removal. The class includes only § 1231(a)(6)

detainees who have “live claims” of defense against removal

before an IJ, the Board of Immigration Appeals, or a circuit

court of appeals, such as withholding-only claims, and the

class excludes aliens whose release or removal is imminent,

as well as aliens who are members of certified classes in

other litigations pending in the Ninth Circuit.

In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme

Court applied the canon of constitutional avoidance to

§ 1231(a)(6) and held that six months was a presumptively

reasonable length of detention and that, after that period,

once an alien provides good reason to believe there is no

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

4 ALEMAN GONZALEZ V. BARR

significant likelihood of removal in the reasonably

foreseeable future, the Government must provide evidence

to rebut that showing. In Diouf v. Napolitano, 634 F.3d 1081

(9th Cir. 2011) (Diouf II), a three-judge panel of this court

applied the canon to construe § 1231(a)(6) as requiring an

individualized bond hearing before an IJ for an alien

detained for six months or longer when the alien’s release or

removal is not imminent.

In this case, the district court issued an injunction

requiring the Government to provide class members with

hearings after six months of detention, as required by Diouf

II. Following this court’s decision in Singh v. Holder, 638

F.3d 1196 (9th Cir. 2011), which held that due process

requires the government to bear the burden of proof in bond

hearings, the injunction also requires the Government to bear

the burden to justify an alien’s continued detention in the

required hearings. On appeal, the Government asserted only

that the district court erred by concluding that Plaintiffs are

likely to succeed on the merits of their statutory claims; it

did not challenge the district court’s decision on the other

preliminary injunction factors.

The panel held that Plaintiffs are likely to succeed on the

merits of their claim that § 1231(a)(6) requires the

Government to provide class members with an

individualized bond hearing in accordance with Diouf II. In

so holding, the panel concluded that Diouf II is not clearly

irreconcilable with Jennings v. Rodriguez, 138 S. Ct. 830

(2018), in which the Supreme Court rejected this court’s

application of the canon of constitutional avoidance to

construe different immigration detention statutes. In

Jennings, the Supreme Court explained that the canon comes

into play only when a statute is found to be susceptible to

more than one construction, and criticized this court for

ALEMAN GONZALEZ V. BARR 5

adopting implausible constructions 8 U.S.C. §§ 1225(b),

1226(a), and 1226(c) to hold that detained aliens have a

statutory right to periodic bond hearings at six months under

those provisions. The panel recognized some tension

between Diouf II and Jennings but concluded that the

decisions are not so fundamentally inconsistent that the court

could no longer apply Diouf II in light of the high standard

for showing clear irreconcilability. The panel underscored

that Jennings repeatedly limited its analysis to the statutory

provisions at issue there, and Jennings’s reasoning showed

that there are material textual differences between

§ 1231(a)(6) and the other immigration detention statutes.

Further, the panel concluded that because Jennings did not

invalidate this court’s constitutional due process holding in

Singh, the district court properly required the Government to

bear a clear and convincing burden of proof at such bond

hearings.

Rejecting the Government’s argument that Diouf II’s

mode of applying the canon contravened Jennings, the panel

explained that Diouf II and Jennings relied on the same

principles governing application of the canon. The panel

also rejected the Government’s argument that Diouf II

improperly “inserted” a bond hearing requirement in

contravention of Jennings, reasoning that Diouf II relied on

earlier circuit precedent that construed § 1231(a)(6) to

permit release on bond without reliance on the canon. The

panel also rejected the Government’s argument that the

Supreme Court’s treatment of § 1226(a) in Jennings

undercut Diouf II, explaining that the Court rejected the

imposition of a six-month bond hearing requirement for

§ 1226(a) but that the Court did not find that the

government’s regulations providing for an initial bond

hearing for § 1226(a) detainees contravened the statutory

text. The panel further reasoned that, unlike any of the

6 ALEMAN GONZALEZ V. BARR

detention statutes at issue in Jennings, Zadvydas and

Jennings’s discussion of that decision support the conclusion

that Diouf II is not clearly irreconcilable with Jennings. The

panel found additional support for the conclusion that Diouf

II is not clearly irreconcilable with Jennings in the Third

Circuit’s decision in Guerrero-Sanchez v. Warden York

County Prison, 905 F.3d 208 (3d Cir. 2018), which expressly

adopted Diouf II’s construction of § 1231(a)(6) in the wake

of Jennings.

Finally, the panel rejected the Government’s contention

that the Supreme Court already applied the canon to

§ 1231(a)(6) to prohibit indefinite detention in Zadvydas,

and therefore, the district court could not “re-apply” the

canon. Likewise, the panel rejected the Government’s

argument that Clark v. Martinez, 543 U.S. 371 (2005), stands

for the proposition that courts can apply only Zadvydas’s

construction of § 1231(a)(6) in all cases, and therefore, the

district court erroneously departed from the framework

Zadvydas established for federal habeas courts.

Dissenting, Judge Fernandez stated that Jennings is

clearly irreconcilable with Diouf II’s reasoning, writing that

the court in Diouf II did not identify a textual ambiguity in

the statute regarding a bond hearing requirement and did not

identify any plausible basis in the statutory text for requiring

such a hearing. Judge Fernandez also wrote that Diouf II’s

reasoning that § 1231(a)(6) detainees were entitled to

individualized bond hearings simply because this court had

conjured such hearings for § 1226(a) detainees is clearly

irreconcilable with Jennings.

ALEMAN GONZALEZ V. BARR 7

COUNSEL

Matthew P. Seamon (argued), Cara E. Alsterberg, and Mary

L. Larakers, Trial Attorneys; T. Monique Peoples, Senior

Litigation Counsel; Elianis N. Perez, Assistant Director;

William C. Peachey, Director; Joseph H. Hunt, Assistant

Attorney General; Office of Immigration Litigation, United

States Department of Justice, Washington, D.C.; for

Defendants-Appellants.

Michael Kaufman (argued), American Civil Liberties Union

Foundation of Southern California, Los Angeles, California;

Alison Pennington, Lisa Knox, and Jesse Newmark, Centro

Legal de la Raza, Oakland, California; Marc Van Der Hout,

Judah Lakin, and Amalia Wille, Van Der Hout LLP, San

Francisco, California; Matthew H. Green, Law Offices of

Matthew H. Green, Tucson, Arizona; Vasudha Talla,

American Civil Liberties Union Foundation of Northern

California, San Francisco, California; Bardis Vakili,

American Civil Liberties Union Foundation of San Diego

and Imperial Counties, San Diego, California; for Plaintiffs-

Appellees.

8 ALEMAN GONZALEZ V. BARR

OPINION

M. SMITH, Circuit Judge:

Esteban Aleman Gonzalez and Eduardo Gutierrez

Sanchez (Plaintiffs) represent a certified class of individuals

who are subject to final removal orders and are detained

pursuant to 8 U.S.C. § 1231(a)(6), within our court’s

jurisdiction for six months or more, and who have been or

will be denied an individualized bond hearing before an

immigration judge (IJ).

Section 1231(a)(6) authorizes Defendants-Appellants

(hereinafter, the Government 1) to detain aliens subject to

final removal orders, or reinstated final removal orders. In

Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) (Diouf

II), a three-judge panel of our court applied the canon of

constitutional avoidance to construe § 1231(a)(6) as

requiring an individualized bond hearing before an IJ for an

alien detained for six months or longer when the alien’s

release or removal is not imminent. Id. at 1086, 1091–92 &

n.13. In this case, Plaintiffs sought a preliminary injunction

requiring the Government to provide class members with an

1

We use the term “the Government” to refer collectively to the

following Defendants-Respondents who Plaintiffs sued in their official

capacities, including as substituted: (1) William P. Barr, United States

Attorney General, (2) Chad Wolf, Acting Secretary of the U.S.

Department of Homeland Security, (3) James McHenry, Director of the

Executive Office for Immigration Review (EOIR), (4) Christopher A.

Santoro, Acting Chief Immigration Judge, EOIR, (5) David W. Jennings,

Field Office Director for the San Francisco Field Office of U.S.

Immigration and Customs Enforcement (ICE), (6) David O. Livingston,

Contra Costa County Sheriff, and (7) Kristi Butterfield, Facility

Commander, West County Detention Facility, Contra Costa County.

Our use of the uncapitalized term “the government” should not be

construed as a reference to the Defendants-Respondents.

ALEMAN GONZALEZ V. BARR 9

individualized bond hearing in accordance with Diouf II.

Relying on our court’s decision in Singh v. Holder, 638 F.3d

1196 (9th Cir. 2011), Plaintiffs also sought for the

Government to bear the burden of proof at such a hearing.

Concluding that it remained bound by Diouf II, the district

court granted the preliminary injunction. The Government

appeals, urging us to reverse and vacate.

We must decide whether Plaintiffs are likely to succeed

on the merits of their claim that § 1231(a)(6) requires the

Government to provide class members with an

individualized bond hearing. As it argued unsuccessfully to

the district court, the Government principally argues that

Diouf II is clearly irreconcilable with the Supreme Court’s

decision in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), a

decision that rejected our court’s application of the canon of

constitutional avoidance to construe different immigration

detention statutes. Despite the district court’s reliance on our

decision in Diouf II, the Government further argues that the

district court impermissibly “re-applied” the canon to

§ 1231(a)(6) to grant the preliminary injunction. According

to the Government, Clark v. Martinez, 543 U.S. 371 (2005),

establishes that the Court’s construction of § 1231(a)(6) in

Zadvydas v. Davis, 533 U.S. 678 (2001), is the single

permissible application of the canon to the provision.

The threshold issue we must resolve is whether Diouf II

is clearly irreconcilable with Jennings. As a three-judge

panel, we are bound by the prior decision of another three-

judge panel. Miller v. Gammie, 335 F.3d 889, 893, 899–900

(9th Cir. 2003) (en banc). This rule gives way when, but

only when, the earlier decision is clearly irreconcilable with

the holding or reasoning of intervening authority from our

court sitting en banc or the Supreme Court. Id. at 893, 899–

900. “The ‘clearly irreconcilable’ requirement is ‘a high

10 ALEMAN GONZALEZ V. BARR

standard.’” United States v. Robertson, 875 F.3d 1281, 1291

(9th Cir. 2017) (quoting Rodriguez v. AT & T Mobility Servs.

LLC, 728 F.3d 975, 979 (9th Cir. 2013)). “[I]f we can apply

our precedent consistently with that of the higher authority,

we must do so.” FTC v. Consumer Def., LLC, 926 F.3d

1208, 1213 (9th Cir. 2019) (emphasis added).

We hold that Plaintiffs are likely to succeed on the merits

of their § 1231(a)(6) statutory claim. Although we recognize

some tension between Diouf II and Jennings, we cannot

conclude that the decisions are so fundamentally

inconsistent that we can no longer apply Diouf II without

running afoul of Jennings. We thus conclude that we remain

bound by Diouf II. For that reason, we conclude further that

the district court did not err in relying on Diouf II’s

construction of § 1231(a)(6) to require a bond hearing before

an IJ after six months of detention for an alien whose release

or removal is not imminent. Because Jennings did not

invalidate our constitutional due process holding in Singh,

the district court also properly required the Government to

bear a clear and convincing burden of proof at such a bond

hearing to justify an alien’s continued detention. Our

conclusion that Diouf II remains controlling compels us to

reject the Government’s remaining challenges that

effectively seek to relitigate Diouf II. We conclude further

that the preliminary injunction complies with a proper

reading of Clark. Based on these determinations, we affirm

the district court’s preliminary injunction in full.

FACTUAL AND PROCEDURAL BACKGROUND

I. Statutory Framework

Various provisions of the Immigration and Nationality

Act (INA) authorize the government to detain noncitizens

during immigration proceedings. See 8 U.S.C. §§ 1225(b),

ALEMAN GONZALEZ V. BARR 11

1226(a), 1226(c), and 1231(a). These statutes are different

textually and in their application. “[T]hese statutes apply at

different stages of an alien’s detention.” Diouf v. Mukasey,

542 F.3d 1222, 1228 (9th Cir. 2008) (Diouf I). “Where an

alien falls within this statutory scheme can affect whether his

detention is mandatory or discretionary, as well as the kind

of review process available to him if he wishes to contest the

necessity of his detention.” Prieto-Romero v. Clark,

534 F.3d 1053, 1057 (9th Cir. 2008).

Section 1225(b)(1) and (b)(2) authorize the government

“to detain certain aliens seeking admission into the

country[.]” Jennings, 138 S. Ct. at 838. Pursuant to

§§ 1226(a) and (c), the government has the authority to

detain “aliens already in the country pending the outcome of

removal proceedings.” Id. Section 1231(a), the detention

provision at issue in this case, “authorizes the detention of

aliens who have already been ordered removed from the

country.” Id. at 843.

Pursuant to § 1231(a), the Attorney General “shall

remove the alien from the United States within a period of

90 days” when an alien is ordered removed. 8 U.S.C.

§ 1231(a)(1)(A). “During the removal period, the Attorney

General shall detain the alien.” 8 U.S.C. § 1231(a)(2). “If

the alien does not leave or is not removed during the removal

period, the alien . . . shall be subject to supervision under

regulations” set by the Attorney General pending removal.

Id. § 1231(a)(3). Section 1231(a)(6) further provides that

“certain categories of aliens who have been ordered

removed, namely, inadmissible aliens, criminal aliens, aliens

who have violated their nonimmigrant status conditions, and

aliens removable for certain national security or foreign

relations reasons, as well as any alien ‘who has been

determined by the Attorney General to be a risk to the

12 ALEMAN GONZALEZ V. BARR

community or unlikely to comply with the order of

removal,’” Zadvydas, 533 U.S. at 688, “may be detained

beyond the removal period and, if released, shall be subject

to the terms of supervision in paragraph (3),” 8 U.S.C.

§ 1231(a)(6) (emphasis added).

In this circuit, detention pursuant to § 1231(a)(6)

“encompasses aliens . . . whose collateral challenge to [a]

removal order (or a motion to reopen) is pending in the court

of appeals, as well as to aliens who have exhausted all direct

and collateral review of their removal orders but who, for

one reason or another, have not yet been removed from the

United States.” Diouf II, 634 F.3d 1085; see also Diouf I,

542 F.3d at 1230 (explaining that the removal period in

§ 1231(a)(1) will commence even if a stay of removal is

entered while a federal court reviews an alien’s habeas

petition pursuant to 28 U.S.C. § 2241 or considers a petition

for review of a denial by the Board of Immigration Appeals

of an alien’s motion to reopen).

The INA also authorizes the government to reinstate a

prior removal order against an alien who the government

believes has unlawfully reentered the United States, with the

order “reinstated from its original date.” 8 U.S.C.

§ 1231(a)(5). Aliens with reinstated removal orders may

pursue limited forms of relief from removal, including

withholding of removal and protection pursuant to the

Convention Against Torture. Andrade-Garcia v. Lynch,

828 F.3d 829, 831 (9th Cir. 2016). In this circuit, aliens with

reinstated removal orders, including those who pursue these

limited forms of relief, are treated as detained pursuant to

§ 1231(a)(6). Padilla-Ramirez v. Bible, 862 F.3d 881, 884–

87 (9th Cir. 2017), amended by, 882 F.3d 826, 830–33 (9th

Cir. 2018).

ALEMAN GONZALEZ V. BARR 13

II. The Proceedings in this Case

Plaintiffs Aleman Gonzalez and Gutierrez Sanchez are

natives and citizens of Mexico. The Government reinstated

prior removal orders against them in 2017 but placed each in

withholding-only removal proceedings after asylum officers

determined that each has a reasonable fear of persecution or

torture in Mexico. Both Plaintiffs requested a bond hearing

before an IJ after 180 days in detention. Different IJs,

however, denied the requests by reasoning that Jennings

effectively overruled Diouf II and thus deprived the IJs of

jurisdiction to conduct the bond hearing Diouf II would

require. Plaintiffs filed the complaint and petition for a writ

of habeas corpus on behalf of a putative class of similarly

situated individuals detained in our court’s jurisdiction.

In their complaint-petition, Plaintiffs claim that the bond

hearing denials violate the INA, the Administrative

Procedure Act, and the U.S. Constitution’s Fifth

Amendment Due Process Clause. Plaintiffs rely on Diouf II

to allege that Defendants have denied them bond hearings

“[d]espite clear Ninth Circuit precedent establishing the

right to a bond hearing for Plaintiffs upon their detention

becoming prolonged” as aliens detained pursuant to

§ 1231(a)(6). Plaintiffs further allege that Singh requires the

Government to bear a clear and convincing evidentiary

burden of proof at such a bond hearing. Alternatively,

Plaintiffs claim that constitutional due process requires these

protections.

Plaintiffs moved for class certification on their statutory

and constitutional claims, and a preliminary injunction. The

district court certified a class of § 1231(a)(6) detainees in the

14 ALEMAN GONZALEZ V. BARR

Ninth Circuit for the statutory claims only. 2 The court also

granted the preliminary injunction, concluding that all

preliminary injunction factors weighed in Plaintiffs’ favor.

The court enjoined the Government from “detaining

Plaintiffs and the class members pursuant to [§] 1231(a)(6)

for more than 180 days without providing each a bond

hearing before an IJ as required by Diouf II.” At the

Government’s request, the district court subsequently

clarified that the certified class includes only individuals

detained pursuant to § 1231(a)(6) who have “live claims”

before an immigration court, the BIA, or a circuit court of

appeals, which means defenses against their removal from

the United States. The court further clarified that, pursuant

to Diouf II, the preliminary injunction does not require a

bond hearing for an alien whose release or removal is

imminent. Diouf II, 634 F.3d at 1092 n.13. Subject to these

clarifications, the Government timely appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over an appeal from the grant of a

preliminary injunction pursuant to 28 U.S.C. § 1292(a)(1).

We review the grant of a preliminary injunction motion for

an abuse of discretion. Adidas Am., Inc. v. Skechers USA,

Inc., 890 F.3d 747, 753 (9th Cir. 2018). “[A] district court

abuses its discretion when it makes an error of law.”

Cuviello v. City of Vallejo, 944 F.3d 816, 826 (9th Cir. 2019)

(citation omitted).

2

Plaintiffs’ class certification motion excluded aliens detained

pursuant to § 1231(a)(6) who are members of certified classes in

litigations pending in the Central District of California and the Western

District of Washington.

ALEMAN GONZALEZ V. BARR 15

ANALYSIS

“A plaintiff seeking a preliminary injunction must

establish that he is likely to succeed on the merits, that he is

likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in his

favor, and that an injunction is in the public interest.” Winter

v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

Although the district court determined that all preliminary

injunction factors weighed in Plaintiffs’ favor, the

Government asserts only that the district court erred by

concluding that Plaintiffs are likely to succeed on the merits

of the statutory claims. We therefore limit our analysis to

this factor.

The dispositive issue for Plaintiffs’ likelihood of success

on their § 1231(a)(6) statutory claims is whether, as the

Government contends, Diouf II is clearly irreconcilable with

Jennings. If the Government’s contention is correct, then

Diouf II cannot support the preliminary injunction the

district court granted.

Familiar principles guide our consideration of the

Government’s principal challenge to the preliminary

injunction. In this circuit, a decision of a prior three-judge

panel is controlling unless and until a superseding ruling

comes from higher authority, including the Supreme Court

or a panel of our court sitting en banc. Miller, 335 F.3d

at 893, 899–900. “[T]he issues decided by the higher court

need not be identical in order to be controlling. Rather, the

relevant court of last resort must have undercut the theory or

reasoning underlying the prior circuit precedent in such a

way that the cases are clearly irreconcilable.” Id. at 900. In

cases of “clear irreconcilability,” we “should consider

[our]selves bound by the intervening higher authority and

16 ALEMAN GONZALEZ V. BARR

reject the prior opinion of this court as having been

effectively overruled.” Id.

As we have already emphasized, “[t]he ‘clearly

irreconcilable’ requirement is ‘a high standard.’” Robertson,

875 F.3d at 1291 (citation omitted). “It is not enough for

there to be ‘some tension’ between the intervening higher

authority and prior circuit precedent, or for the intervening

higher authority to ‘cast doubt’ on the prior circuit

precedent.” Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir.

2012) (internal citation omitted) (quoting United States v.

Orm Hieng, 679 F.3d 1131, 1140–41 (9th Cir. 2012), and

United States v. Delgado-Ramos, 635 F.3d 1237, 1239 (9th

Cir. 2011) (per curiam)). “In order for us to ignore existing

Ninth Circuit precedent . . . the reasoning and principles of

[the later authority] would need to be so fundamentally

inconsistent with our prior cases that our prior cases cannot

stand.” In re Gilman, 887 F.3d 956, 962 (9th Cir. 2018)

(alteration in brackets added). But if we “can apply our prior

circuit precedent without running afoul of the intervening

authority, we must do so.” Lair, 697 F.3d at 1207 (internal

quotations and citation omitted).

To set the stage for our analysis of whether Diouf II is

clearly irreconcilable with Jennings, we first discuss the

relevant precedents of the Supreme Court and our court

construing the immigration detention statutes. We then

consider the Government’s particular arguments about how,

in its view, Jennings undercuts Diouf II. Finally, we address

the Government’s argument that the district court

improperly re-applied the canon of constitutional avoidance

to § 1231(a)(6).

ALEMAN GONZALEZ V. BARR 17

I. Constructions of the Immigration Detention Statutes

A. Zadvydas v. Davis, 533 U.S. 678 (2001)

We turn first to the Supreme Court’s decision in

Zadvydas v. Davis, 533 U.S. 678 (2001). Zadvydas is central

to understanding our court’s application of the canon of

constitutional avoidance to all the immigration detention

statutes, as well as to understanding the Court’s decision in

Jennings.

In Zadvydas, the Court considered a federal habeas

challenge to detention pursuant to § 1231(a)(6) brought by

aliens with criminal convictions whom the government had

detained beyond § 1231(a)(2)’s initial 90-day mandatory

detention period. 533 U.S. at 682. The question before the

Court was whether, beyond the initial removal period,

§ 1231(a)(6) authorized indefinite detention or only

detention for a period reasonably necessary to secure the

alien’s removal. Id.

Invoking the canon of constitutional avoidance, the

Court rejected the government’s argument that § 1231(a)(6)

sets no limit on the permissible length of detention beyond

the removal period. Id. at 689. The Court reasoned first that

“[a] statute permitting indefinite detention of an alien would

raise a serious constitutional problem” under the Fifth

Amendment’s Due Process Clause given the physical liberty

at issue, the potentially permanent civil confinement the

statute could authorize, and the limited “procedural

protections available to the alien” pursuant to 8 C.F.R.

§ 241.4(d)(1) (2001), pursuant to which “the alien bears the

burden of proving he is not dangerous[.]” Id. at 690−92.

Against the backdrop of these constitutional concerns, the

Court could not find in § 1231(a)(6)’s text a “clear indication

of congressional intent to grant the Attorney General the

18 ALEMAN GONZALEZ V. BARR

power to hold indefinitely an alien ordered removed.” Id. at

697. The Court explained that the statute’s use of the word

“may” in the phrase “may be detained” is ambiguous and

“does not necessarily suggest unlimited discretion.” Id. The

Court thus “read an implicit limitation into” § 1231(a)(6),

“limit[ing] an alien’s post-removal-period detention to a

period reasonably necessary to bring about that alien’s

removal from the United States.” Id. at 689.

Faced with the habeas petitions in that case, the Court

outlined how a habeas court should apply this construction

of § 1231(a)(6). Id. at 699. When removal is no longer

reasonably foreseeable, § 1231(a)(6) no longer authorizes

continued detention. Id. at 699−700. “In that case, . . . the

alien’s release may and should be conditioned on any of the

various forms of supervised release that are appropriate in

the circumstances, and the alien may no doubt be returned to

custody upon a violation of those conditions.” Id. at 700

(citing 8 U.S.C. §§ 1231(a)(3); 8 C.F.R. § 241.5)).

“[H]av[ing] reason to believe . . .that Congress previously

doubted the constitutionality of detention for more than six

months,” the Court recognized six months as a

presumptively reasonable length of detention “for the sake

of uniform administration in the federal courts.” Id. at 701.

“After this 6-month period, once the alien provides good

reason to believe that there is no significant likelihood of

removal in the reasonably foreseeable future, the

Government must respond with evidence sufficient to rebut

that showing.” Id. The Court qualified that this “does not

mean that every alien not removed must be released after six

months,” but rather “an alien may be [detained] until it has

been determined that there is no significant likelihood of

removal in the reasonably foreseeable future.” Id.

ALEMAN GONZALEZ V. BARR 19

B. This Court’s Pre-Jennings Constructions of the

Immigration Detention Statutes

Although Zadvydas concerned only § 1231(a)(6), that

decision led this court to “grapple[] in piece-meal fashion

with whether the various immigration detention statutes may

authorize indefinite or prolonged detention of detainees and,

if so, may do so without providing a bond hearing.”

Rodriguez v. Robbins, 804 F.3d 1060, 1077 (9th Cir. 2015)

(Rodriguez III) (quoting Rodriguez v. Robbins, 715 F.3d

1127, 1134 (9th Cir. 2013) (Rodriguez II) (further quoting

Rodriguez v. Hayes, 591 F.3d 1105, 1114 (9th Cir. 2010)

(Rodriguez I))). 3 Five decisions are relevant here.

First, in Casas-Castrillon v. Department of Homeland

Security, 535 F.3d 942 (9th Cir. 2008), our court considered

a habeas petition from a lawful permanent resident whom the

government had detained for nearly seven years without

providing an adequate opportunity to challenge his

detention. Id. at 944. We recognized that § 1226(a)

3

Our court also identified the Court’s decision in Demore v. Kim,

538 U.S. 510 (2003), as important to our constructions of the

immigration detention statutes to address the constitutional issue of

prolonged detention. See Rodriguez III, 804 F.3d at 1077. Demore,

however, is the earliest example of the Court’s rejection of our court’s

reliance on Zadvydas to construe the other immigration detention

statutes. We had construed § 1226(c) to require the government to

provide a bail hearing with reasonable promptness to determine whether

the alien was a flight risk or a danger to the community. Kim v. Ziglar,

276 F.3d 523, 539 (9th Cir. 2002). Foreshadowing its reasoning in

Jennings, the Court rejected that construction by distinguishing

Zadvydas’s focus on § 1231(a)(6) as “materially different” from

§ 1226(c), noting that whereas the statute at issue in Zadvydas involved

“‘indefinite’ and ‘potentially permanent’ detention,” § 1226(c) involved

detention “of a much shorter duration” with a “definite termination

point.” Demore, 538 U.S. at 527–29.

20 ALEMAN GONZALEZ V. BARR

authorized the government to detain Casas-Castrillon

because he remained capable of being removed, id. at

948−49, but we also recognized that Casas-Castrillon’s

nearly seven-year detention posed a “constitutional

question,” id. at 950. We declined to resolve that question

because we could “find no evidence that Congress intended

to authorize the long-term detention of aliens such as Casas[-

Castrillon] without providing them access to a bond hearing

before an immigration judge.” Id.

Relying on an earlier decision of our court that applied

the canon of constitutional avoidance to § 1226(c), we

determined that prolonged detention under § 1226(a) is

“permissible only where the Attorney General finds such

detention individually necessary by providing the alien with

an adequate opportunity to contest the necessity of his

detention.” Id. at 951 (relying on Tijani v. Willis, 430 F.3d

1241, 1242 (9th Cir. 2005)). 4 We recognized that

“[§] 1226(a), unlike § 1226(c), provides such authority for

the Attorney General to conduct a bond hearing and release

the alien on bond or detain him if necessary to secure his

presence at removal.” Id. We held that “§ 1226(a) must be

construed as requiring the Attorney General to provide the

alien with such a hearing” given the constitutional

4

In Tijani, our court addressed the government’s detention of an

alien for two years and eight months pursuant to § 1226(c). 430 F.3d at

1242. We invoked Zadvydas to question the permissibility of a

congressional statute authorizing detention “of this duration for lawfully

admitted resident aliens who are subject to removal.” Id. (citing

Zadvydas, 533 U.S. at 690). We distinguished Demore as a case “where

the alien conceded deportability,” and then proceeded to apply the canon

of constitutional avoidance to construe § 1226(c) to conditionally grant

habeas relief unless the government provided the alien with a bond

hearing before an IJ where the government bore the burden of justifying

continued detention. Id.

ALEMAN GONZALEZ V. BARR 21

doubtfulness of prolonged detention without an

individualized determination of dangerousness or flight risk.

Id. (citing Tijani, 430 F.3d at 1242) (emphasis in original).

“Thus an alien is entitled to be released on bond unless the

‘government establishes that he is a flight risk or will be a

danger to the community.’” Id. (quoting Tijani, 430 F.3d

at 1242).

Second, in Diouf II, we reversed a district court’s denial

of a preliminary injunction that would have required

individualized bond hearings pursuant to § 1231(a)(6).

634 F.3d at 1084. We “extend[ed] Casas-Castrillon” to

§ 1231(a)(6), id. at 1086, such that “individuals detained

[there]under . . . are entitled to the same procedural

safeguards against prolonged detention as individuals

detained under § 1226(a),” id. at 1084. We determined that

“prolonged detention under § 1231(a)(6), without adequate

procedural safeguards, would raise ‘serious constitutional

concerns.’” Id. at 1086 (quoting Casas-Castrillon, 535 F.3d

at 950). We thus “appl[ied] the canon . . . and construe[d]

§ 1231(a)(6) as requiring an individualized bond hearing,

before an immigration judge, for aliens facing prolonged

detention under that provision.” Id. (quoting Casas-

Castrillon, 535 F.3d at 951). We held further that “[s]uch

aliens are entitled to release on bond unless the government

establishes that the alien is a flight risk or will be a danger to

the community.” Id.

In justifying this application of the canon to § 1231(a)(6)

to require a bond hearing, we rejected the government’s

argument that § 1231(a)(6)’s text does not expressly provide

for release on bond as does § 1226(a)’s text. We

underscored that we had already construed § 1231(a)(6) to

authorize release on bond and acknowledged that the

government’s own regulations permitted release on bond for

22 ALEMAN GONZALEZ V. BARR

aliens detained pursuant to the provision. Id. at 1089 (citing

Diouf I, 542 F.3d at 1234; 8 C.F.R. § 241.5(b)).

We also rejected the government’s argument that the

regulations it modified in the wake of the Court’s

construction of § 1231(a)(6) in Zadvydas provided sufficient

safeguards to protect the liberty interests of § 1231(a)(6)

detainees. Id. at 1089 & n.10. We found “serious

constitutional concerns” with the government’s 180-day

review process (i.e., detention lasting six months) because

the regulations “do not provide for an in-person hearing, they

place the burden on the alien rather than the government and

they do not provide for a decision by a neutral arbiter such

as an immigration judge.” Id. at 1091. In the context of this

discussion, we explained for the first time that “[a]s a general

matter, detention is prolonged when it has lasted six months

and is expected to continue more than minimally beyond six

months.” Id. at 1092 n.13; see also Rodriguez III, 804 F.3d

at 1069 (“In Diouf II, we also adopted a definition of

‘prolonged’ detention . . . for purposes of administering the

Casas[-Castrillon] bond hearing requirement.” (citing Diouf

II, 634 F.3d at 1092 n.13)). Alluding to Zadvydas, we

explained that the “private interests at stake are profound” at

six months of detention, such that “a hearing before an

immigration judge is a basic safeguard for aliens facing

prolonged detention under § 1231(a)(6).” Diouf II, 634 F.3d

at 1091–92.

Third, and not long after Diouf II, we explained in Singh

that “given the substantial liberty interests at stake,”

638 F.3d at 1200, due process requires the government to

prove “by clear and convincing evidence that an alien is a

flight risk or a danger to the community to justify the denial

of bond,” id. at 1203–04. Although Singh concerned a bond

hearing requirement that our court construed § 1226(a) as

ALEMAN GONZALEZ V. BARR 23

requiring in Casas-Castrillon, Singh was not a statutory

construction decision. Instead, we drew from the Supreme

Court’s constitutional procedural due process jurisprudence

“plac[ing] a heightened burden of proof on the State in civil

proceedings in which the ‘individual liberty interests at stake

. . . are both particularly important and more substantial than

mere loss of money.’” Id. at 1204 (quoting Cooper v.

Oklahoma, 517 U.S. 348, 363 (1996), and citing Foucha v.

Louisiana, 504 U.S. 71, 80 (1992); Woodby v. INS, 385 U.S.

276, 285 (1966); Chaunt v. United States, 364 U.S. 350, 353

(1960)).

Fourth, in Rodriguez II, we affirmed a district court’s

preliminary injunction that required the government to

provide individualized bond hearings before an IJ to class

members detained pursuant to §§ 1225(b) and 1226(c).

Rodriguez II, 715 F.3d at 1130–31. To avoid the

constitutional concerns posed by prolonged detention, we

held that “§ 1226(c)’s mandatory language must be

construed ‘to contain an implicit ‘reasonable time’

limitation, . . . subject to federal court review.’” Id. at 1138

(quoting Zadvydas, 533 U.S. at 682). After the expiration of

that implicit time limitation, the government’s authority to

detain class members would shift to § 1226(a). Id. (citing

Casas-Castrillon, 535 F.3d at 948). Relying on Diouf II’s

definition of prolonged detention, we held that “subclass

members who have been detained under § 1226(c) for six

months are entitled to a bond hearing[.]” Id. (citing Diouf II,

634 F.3d at 1092 n.13). We acknowledged the government’s

argument there that “Diouf II by its terms addressed

detention under § 1231(a)(6), not § 1226(c) or § 1225(b),”

but we thought the conclusion “that detention always

becomes prolonged at six months” was “consistent with the

reasoning of Zadvydas, Demore, Casas[-Castrillon], and

Diouf II[.]” Id. at 1039. Finding “no basis” to distinguish

24 ALEMAN GONZALEZ V. BARR

§ 1225(b) from § 1226(c), we also held that any mandatory

detention pursuant to § 1225(b) was “implicitly time-

limited” to six months, after which the government’s

authority shifted to § 1226(a). Id. at 1143–44. The

§ 1225(b) subclass would thus be entitled to a bond hearing

in accordance with Casas-Castrillon’s construction of

§ 1226(a). Id. (citing Casas-Castrillon, 535 F.3d at 948).

Singh’s strictures would apply to the §§ 1225(b) and 1226(c)

subclasses. Id. at 1139, 1144.

Finally, Rodriguez III—the decision at issue in

Jenningslargely distilled the holdings of our decisions

construing the immigration detention statutes into a single

decision. There, we considered a grant of summary

judgment and corresponding permanent injunction for a

class of noncitizens who challenged their prolonged

detention pursuant to §§ 1225(b), 1226(a), 1226(c), and

1231(a) without individualized bond hearings to justify

continued detention. Rodriguez III, 804 F.3d at 1065. We

reversed the judgment and injunction insofar as they

concerned noncitizens detained pursuant to § 1231(a),

explaining that the class was defined as non-citizens

“detained ‘pending completion of removal proceedings,

including judicial review.’” Id. at 1086. We explained that

a removal order could not be administratively final for any

class members, and thus “[s]imply put, the § 1231(a)

subclass does not exist.” Id. We otherwise affirmed the

judgment and injunction.

In Rodriguez III, we concluded that “the canon of

constitutional avoidance requires us to construe the statutory

scheme to provide all class members who are in prolonged

detention with bond hearings at which the government bears

the burden of proving by clear and convincing evidence that

the class member is a danger to the community or a flight

ALEMAN GONZALEZ V. BARR 25

risk.” Id. at 1074. For the §§ 1225(b) and 1226(c)

subclasses, we reiterated our application of the canon in

Rodriguez II to construe the provisions as containing an

implicit six-month time limitation, after which the

government’s detention authority shifted to § 1226(a),

thereby entitling detainees to a bond hearing in accordance

with Casas-Castrillon. Id. at 1079−81 (discussing

§ 1226(c)), id. at 1081−84 (discussing § 1225(b)). We

affirmed the injunction for the § 1226(a) subclass as

“squarely controlled by our precedents,” pointing principally

to Casas-Castrillon. Id. at 1085. Such class members were

“entitled to automatic bond hearings after six months of

detention.” Id.

We also addressed procedural protections for the

statutory bond hearings we construed § 1226(a) as requiring,

and to which all class members were entitled based on our

constructions of the immigration statutes at issue. Relying

on Singh, we affirmed the requirement that the government

justify continued detention by clear and convincing

evidence. Id. at 1087. We also determined, for the first time,

that “the government must provide periodic bond hearings

every six months” after an initial bond hearing “so that

noncitizens may challenge their continued detention as ‘the

period of . . . confinement grows.’” Id. at 1089 (quoting

Diouf II, 634 F.3d at 1091, which in turn quoted Zadvydas,

533 U.S. at 701). The government petitioned for a writ of

certiorari, which the Supreme Court granted. Jennings v.

Rodriguez, 136 S. Ct. 2489 (2016).

C. Jennings v. Rodriguez, 138 S. Ct. 830 (2018)

Our court’s constructions of §§ 1225(b), 1226(a), and

1226(c) were sharply criticized in Jennings. In the Court’s

opinion, we had “adopted implausible constructions of the

26 ALEMAN GONZALEZ V. BARR

three immigration provisions at issue” to hold “that detained

aliens have a statutory right to periodic bond hearings under

the provisions at issue.” 138 S. Ct. at 836. As the Court

explained, “[t]he canon of constitutional avoidance ‘comes

into play only when, after the application of ordinary textual

analysis, the statute is found to be susceptible of more than

one construction.’” Id. at 842 (quoting Clark, 543 U.S.

at 385). The Court found no textual basis for our

construction of those statutory provisions.

The Court began with §§ 1225(b)(1) and (b)(2).

Observing that both provisions provide that an alien “shall

be detained,” id. at 837, 842, the Court explained that “[r]ead

most naturally, [the statutes] mandate detention of applicants

for admission until certain proceedings have concluded,” id.

at 842. The Court determined that “[d]espite the clear

language,” our court read an implicit six-month time

limitation regarding the length of detention into them. Id.

The Court rejected our reading because the provisions’ text

did not “hint[] that those provisions restrict detention after

six months.” Id. at 843. The Court explained that “[s]potting

a constitutional issue does not give a court the authority to

rewrite a statute as it pleases,” but instead “the canon permits

a court to ‘choos[e] between competing plausible

interpretations of a statutory text.’” Id. (quoting Clark,

543 U.S. at 381) (emphasis in original).

The Court also rejected our reliance on Zadvydas “to

graft a time limit onto the text of § 1225(b).” Id. The Court

explained that “Zadvydas concerned § 1231(a)(6),” a

different provision “authoriz[ing] the detention of aliens

who have already been ordered removed from the country.”

Id. The Court explained that Zadvydas construed

§ 1231(a)(6) to mean that an alien who is ordered removed

may not be detained beyond a period reasonably necessary

ALEMAN GONZALEZ V. BARR 27

to secure his removal, with six months as the presumptively

reasonable period. Id. According to the Court, Zadvydas

“justified this interpretation by invoking the constitutional-

avoidance canon” to “detect[] ambiguity in the statutory

phrase ‘may be detained.’” Id. (emphasis in original).

Characterizing Zadvydas as “a notably generous application

of the constitutional-avoidance canon,” the Court

determined that we “went much further” in construing

§§ 1225(b)(1) and (b)(2). Id.

The Court explained that we “failed to address whether

Zadvydas’s reasoning may fairly be applied in this case

despite the many ways in which the provision in question in

Zadvydas, § 1231(a)(6), differs materially from those at

issue here, §§ 1225(b)(1) and (b)(2).” Id. For one, unlike

§ 1231(a)(6), the provisions “provide for detention for a

specified period of time.” Id. at 844. Thus, detention under

these statutes could not be indefinite like detention under

§ 1231(a)(6) could be without a limiting construction.

Second, whereas § 1231(a)(6) uses the word “may,”

§§ 1225(b)(1) and (b)(2) use the phrase “shall.” Id. Thus,

the latter provisions are clearly mandatory, whereas

§ 1231(a)(6) is not. Finally, the Court found Zadvydas

“particularly inapt” because Congress authorized the

Attorney General to release aliens detained pursuant to

§§ 1225(b)(1) and (b)(2) for urgent humanitarian reasons or

a significant public benefit. Id. (citing 8 U.S.C.

§ 1182(d)(5)(A)). By “negative implication,” the Court read

this to exclude any other manner of release and to

“preclude[] the sort of implicit time limit on detention that

we found in Zadvydas.” Id.

The Court deemed § 1226(c)’s language “even clearer.”

Id. at 846. The Court determined that § 1226(c) is not silent

on the length of permissible detention because it mandates

28 ALEMAN GONZALEZ V. BARR

detention of certain aliens pending removal proceedings. Id.

The Court further determined that, pursuant to § 1226(c)’s

terms, the Attorney General “may release” an alien detained

pursuant to that provision “‘only if the Attorney General

decides’ both that doing so is necessary for witness-

protection purposes and that the alien will not pose a danger

or flight risk.” Id. (quoting 8 U.S.C. § 1226(c)(2)) (emphasis

in original). Thus, the Court read this text to mean “aliens

detained under its authority are not entitled to be released

under any circumstances other than those expressly

recognized by the statute.” Id.

Turning to § 1226(a), the Court rejected our court’s

imposition of “procedural protections that go well beyond

the initial bond hearing established by existing

regulationsnamely, periodic bond hearings every six

months in which the Attorney General must prove by clear

and convincing evidence that the alien’s continued detention

is necessary.” Id. at 847. According to the Court, “[n]othing

in § 1226(a)’s text—which says only that the Attorney

General ‘may release’ the alien ‘on . . . bond’—even

remotely supports the imposition of either of those

requirements.” Id. 5 The Court ultimately remanded for

consideration of the plaintiffs’ constitutional due process

challenges to the statutes at issue. Id. at 851.

5

Jennings also rejected “layer[ing]” onto § 1226(a) a procedural

requirement that would require an IJ to consider “the length of detention

prior to a bond hearing . . . in determining whether the alien should be

released.” 138 S. Ct. at 848. Neither Diouf II, nor the district court’s

preliminary injunction require this. Thus, this aspect of Jennings is

inapposite to this appeal.

ALEMAN GONZALEZ V. BARR 29

Jennings clearly invalidated aspects of our court’s prior

constructions of §§ 1225(b), 1226(a), and 1226(c). About

this, we have no doubt. See Rodriguez v. Marin, 909 F.3d

252, 255 (9th Cir. 2018) (“In Jennings[], the Supreme Court

held that we misapplied the canon of constitutional

avoidance to hold that certain immigration detention

statutes, namely 8 U.S.C. §§ 1225(b), 1226(a), and 1226(c),

implicitly contain a reasonableness determination after

which due process concerns require that persons in

prolonged mandatory detention are entitled to individualized

bond hearings and possibly, conditional release.”). But this

appeal requires us to determine the impact of Jennings on

Diouf II’s construction of § 1231(a)(6), if any.

II. Diouf II Is Not Clearly Irreconcilable with Jennings

Implicitly acknowledging that Jennings did not concern

our construction of § 1231(a)(6), the Government urges us

to conclude that Jennings has invalidated Diouf II and

therefore to conclude further that we are no longer bound by

Diouf II. See Miller, 335 F.3d at 893.

The scope of our inquiry into whether Diouf II is clearly

irreconcilable with Jennings is limited. This inquiry does

not call upon us to opine on whether Diouf II reached the

right result, nor to determine whether we would construe

§ 1231(a)(6) differently. See Close v. Sotheby’s, Inc.,

894 F.3d 1061, 1073–74 (9th Cir. 2018) (“[T]he fact that we

might decide a case differently than a prior panel is not

sufficient grounds for deeming the [prior] case overruled.”).

Instead, we must determine whether the Government’s

arguments satisfy the “high standard” of clear

irreconcilability that governs in this circuit. Robertson,

875 F.3d at 1291. “[I]f we can apply our precedent

consistently with that of the higher authority, we must do

so.” FTC, 926 F.3d at 1213 (emphasis added). “Nothing

30 ALEMAN GONZALEZ V. BARR

short of ‘clear irreconcilability’ will do.” Close, 894 F.3d

at 1073.

The Government advances three overlapping arguments

to persuade us that Jennings effectively overruled Diouf II.

First, the Government argues that Diouf II’s application of

the canon of constitutional avoidance to § 1231(a)(6)

contravenes Jennings’s mode of applying the canon to the

other immigration detention statutes. Second, the

Government argues that Jennings’s rejection of construing

§ 1226(a) to require certain procedural protections

forecloses Diouf II’s construction of § 1231(a)(6). Third, the

Government argues that Diouf II is no longer good law

because Jennings reversed a decision of our court that

applied Casas-Castrillon’s construction of § 1226(a), a

decision on which Diouf II relied.

We consider and ultimately reject each of the

Government’s arguments. Although we recognize some

tension between Diouf II and Jennings, the Government has

not persuaded us that Diouf II is “so fundamentally

inconsistent with” Jennings that we may overrule Diouf II

now. In re Gilman, 887 F.3d at 962. Apart from rejecting

the Government’s arguments, we find additional support for

the conclusion that Diouf II is not clearly irreconcilable with

Jennings in the Third Circuit’s decision in Guerrero-

Sanchez v. Warden York County Prison, 905 F.3d 208 (3d

Cir. 2018), which expressly adopted Diouf II’s construction

of § 1231(a)(6) in the wake of Jennings.

A. Diouf II’s Application of the Canon of

Constitutional Avoidance

The Government’s core contention is that Diouf II’s

application of the canon of constitutional avoidance to

§ 1231(a)(6) runs afoul of Jennings. We understand this

ALEMAN GONZALEZ V. BARR 31

argument to concern two points specific to Diouf II’s

interpretation of § 1231(a)(6). First, the Government argues

that Jennings abrogated our application of the canon of

constitutional avoidance to § 1231(a)(6) in Diouf II. Second,

the Government contends that Jennings overrides the

conclusion that § 1231(a)(6) may be construed to authorize

release on bond and thus Diouf II’s application of the canon

to construe § 1231(a)(6) as requiring a bond hearing cannot

stand after Jennings. 6

In defense of Diouf II, Plaintiffs argue that in Jennings,

the Court “explicitly reaffirmed its prior holding in Zadvydas

that [§] 1231(a)(6) is amenable to the canon of constitutional

avoidance.” Although we agree that Zadvydas plays an

important role in our analysis given Jennings’s discussion of

that decision, we do not think that the clear irreconcilability

analysis here is as simple as Plaintiffs posit. The

Government does not challenge whether the canon may be

applied to § 1231(a)(6) at all, but rather contends that

Jennings shows that Diouf II improperly applied the canon

to construe § 1231(a)(6) as requiring a bond hearing. As

Plaintiffs recognize, Zadvydas did not construe § 1231(a)(6)

in this manner. Thus, we must consider the distinct question

of whether Diouf II’s particular application of the canon runs

afoul of Jennings.

6

We distinguish these arguments from the related, yet distinct issue

of whether Diouf II properly construed § 1231(a)(6) to require a bond

hearing after six months of detention. We consider that issue in our

analysis of the Government’s argument regarding Jennings’s rejection

of our court’s construction of § 1226(a) to require “periodic bond

hearings” after six months of detention, beyond the bond hearing that the

government’s regulations already provided at the outset of detention for

an alien detained pursuant to the government’s § 1226(a) detention

authority.

32 ALEMAN GONZALEZ V. BARR

The Government tells us that Diouf II’s application of the

canon runs afoul of Jennings because, in the Government’s

view, Diouf II merely spotted a constitutional issue

regarding prolonged detention that it solved by applying the

canon to “insert” a bond hearing requirement into

§ 1231(a)(6). Pointing to the Court’s rejection in Jennings

of our application of the canon to the other immigration

detention statutes, the Government invites us to reject Diouf

II’s construction of § 1231(a)(6) as erroneously requiring

“the very same relief that the Supreme Court found

inconsistent with three distinct immigration statutes.”

Although we acknowledge the superficial appeal of the

Government’s suggestion, it carries little weight for us in our

clear irreconcilability analysis. As a general matter, “we

‘must be careful not to apply the rules applicable under one

statute to a different statute without careful and critical

examination.’” Murray v. Mayo Clinic, 934 F.3d 1101, 1106

(9th Cir. 2019) (quoting Gross v. FBL Fin. Servs., Inc.,

557 U.S. 167, 174 (2009)). That admonition carries force

here. In no fewer than ten instances, the Court expressly

qualified in Jennings that it rejected our application of the

canon to the statutory provisions “at issue” there. Jennings,

138 S. Ct. at 836, 839, 842, 843, 844, 850, 851. The Court’s

repeated use of that limiting language strongly suggests that

we should not read the Court’s rejection of our application

of the canon to the other immigration detention statutes as

alone undercutting Diouf II’s application of the canon to

§ 1231(a)(6). As we discuss in Part II.B.3, this conclusion

is inescapable given the material textual differences between

§ 1231(a)(6) and the other immigration detention statutes, a

point that the Court underscored throughout its analysis in

Jennings.

ALEMAN GONZALEZ V. BARR 33

Our dissenting colleague takes issue with our

observation that Jennings repeatedly qualified that its focus

was on the statutory provisions at issue there, namely

§§ 1225(b), 1226(a), and 1226(c). The dissent contends that

Jennings’s repeated and express limitations do not deprive

that decision “of all persuasive force” in the clear

irreconcilability inquiry presented here. Dissent at 61 n.2.

(quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338,

351 (2013)). Drawing on the recent decision in Murray v.

Mayo Clinic, 934 F.3d 1101 (9th Cir. 2019), in which a

three-judge panel of our court concluded that an earlier

circuit precedent was clearly irreconcilable with two

intervening Supreme Court decisions, the dissent argues

“that Jennings and Diouf II analyzed different statutes is not

dispositive of their irreconcilability.” Dissent at 62 n.2. We

do not understand this critique. 7 We have not described

7

We similarly do not understand the dissent’s reliance on Murray’s

clear irreconcilability analysis. Murray addressed the continued viability

of our court’s holding in Head v. Glacier Northwest, Inc, 413 F.3d 1053

(9th Cir. 2005) that Title I of the Americans with Disabilities Act (ADA)

requires only a showing that disability was a motivating factor to prove

a violation. The relevant statutory provision prohibited discrimination

“on the basis of disability.” 42 U.S.C. § 12112(a). After Head, the Court

interpreted the phrase discrimination “because of such an individual’s

age” in the Age Discrimination in Employment Act (ADEA) to require

but-for causation and rejected a motivating factor analysis. Gross v. FBL

Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009). The Court subsequently

held that the phrase “because of” in Title VII’s anti-retaliation provision

also requires but-for causation, again rejecting the motivating factor

standard. Nassar, 570 U.S. at 351–53. The Murray panel determined

that Head is clearly irreconcilable with Gross and Nassar’s interpretation

of similar statutory text and held that Title I requires but-for causation as

well. Murray, 934 F.3d at 1106 (“Under Gross, the phrase ‘on the basis

of disability’ indicates but-for causation.”); id. (reasoning that Nassar,

570 U.S. at 350, explains that Gross’s holding that “because of,” “by

reason of,” “on account of,” and “based on” all indicate a but-for causal

relationship). Contrary to the dissent’s suggestion, this case is not

34 ALEMAN GONZALEZ V. BARR

Jennings’s repeated qualifications regarding its limited

focus on the statutory provisions at issue there as dispositive

of the clear irreconcilability analysis. Instead, our

observation leads us to reject the Government’s simplistic

argument that the mere fact that Jennings invalidated our

court’s application of the canon to other immigration

detention statutes alone gives us license to overrule Diouf II.

See Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2018)

(amended opinion) (concluding that the Supreme Court’s

“express limitation on its holding” in the intervening

decision did not render the prior circuit decision clearly

irreconcilable with the intervening decision). More

critically, as we explain in Part II.B.3, it is the material

textual differences amongst the immigration detention

statutes that Jennings expressly and repeatedly recognized

that give Jennings’s treatment of the other statutory

provisions little weight in our clear irreconcilability analysis.

Focusing squarely on Diouf II, the Government argues

more narrowly that § 1231(a)(6) cannot be construed to

require an individualized bond hearing because the provision

does not expressly use the word “bond.” The government

raised this very argument in Diouf II. 634 F.3d at 1089. But

now relying on Jennings, the Government contends that

Diouf II runs afoul of Jennings’s admonition that “[s]potting

a constitutional issue does not give a court the authority to

rewrite a statute as it pleases.” 138 S. Ct. at 843.

Murray. Unlike the provisions discussed there, we are not confronted

with nominal and immaterial differences between the provisions at issue

in Jennings and § 1231(a)(6). In reining in our court’s reliance on

Zadvydas and the canon to construe the immigration detention statutes

at issue in Jennings, the Court made it eminently clear that the textual

differences amongst the statutes are material. See Jennings, 138 S. Ct.

at 843.

ALEMAN GONZALEZ V. BARR 35

This argument is not without some appeal. The

Government points us only to Part III of Diouf II. In a single

paragraph, our court identified constitutional concerns with

“prolonged detention under § 1231(a)(6), without adequate

procedural protections[.]” Diouf II, 634 F.3d at 1086. “To

address those concerns,” we “appl[ied] the canon of

constitutional avoidance and construe[d] § 1231(a)(6) as

requiring an individualized bond hearing, before an

immigration judge, for aliens facing prolonged detention

under that provision.” Id. (citing Casas-Castrillon, 535 F.3d

at 951). This portion of Diouf II contained no analysis

regarding the canon’s application to § 1231(a)(6)’s text. We

also recognized elsewhere in Diouf II that § 1231(a)(6) does

not explicitly use the word “bond.” Id. at 1089. These

aspects of Diouf II give us pause in light of Jennings, but

only briefly.

In Diouf II, we recognized that the canon is a tool of

statutory construction that applies when an act of Congress

raises a serious constitutional doubt. Diouf II, 634 F.3d at

1086 n.7. And we recognized that a federal court utilizes the

canon to “‘decid[e] which of two plausible statutory

constructions to adopt[.]’” Id. at 1088 (quoting Clark,

543 U.S. at 380−81). Contrary to the Government’s

contention that Diouf II did not grapple with § 1231(a)(6)’s

text to justify its application of the canon, Diouf II did so.

Section 1231(a)(6) provides that “if released” from detention

beyond the removal period, an alien “shall be subject to the

terms of supervision in [§ 1231(a)](3).” 8 U.S.C.

§ 1231(a)(6). In Diouf II, although we recognized that

§ 1231(a)(6) does not use the word “bond,” we “ha[d] no

doubt that bond is also authorized under §1231(a)(6), as we

have held and as Department of Homeland Security (DHS)

regulations acknowledge.” 634 F.3d at 1089. (citing Diouf

36 ALEMAN GONZALEZ V. BARR

I, 542 F.3d at 1234; 8 C.F.R. § 241.5(b)) (emphasis added). 8

We fail to see how Jennings undercuts this articulation and

application of the canon.

Jennings “expressly looked” to the same underlying

principles and applied the canon “consistent with th[ose]

principles[.]” Lair, 697 F.3d at 1207. Jennings first

affirmed that the canon applies “[w]hen ‘a serious doubt’ is

raised about the constitutionality of an act of Congress,”

pursuant to which “‘. . . this Court will first ascertain

whether a construction of the statute is fairly possible by

which the question may be avoided.’” Jennings, 138 S. Ct.

at 842 (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)).

Jennings then reiterated that “the canon permits a court ‘to

choos[e] between competing plausible interpretations of a

statutory text.’” Id. at 843 (quoting Clark, 543 U.S. at 381)

(emphasis in original omitted). Jennings reiterated what the

Court had already said about the canon in several cases

decided long before our Diouf II decision. See United States

v. Locke, 471 U.S. 84, 96 (1985) (“We cannot press statutory

construction ‘to the point of disingenuous evasion’ even to

avoid a constitutional question.”) (quoting George Moore

Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933)); see also

Clark, 543 U.S. at 381, 385; United States v. Oakland

Cannabis Buyers’ Co-op., 532 U.S. 483, 494 (2001).

The Government and the dissent conspicuously ignore

that Diouf II articulated and relied on the same principles

governing application of the canon as Jennings. We have

8

8 C.F.R. § 241.5 is a regulation that applies to aliens who the

government releases from § 1231(a)(6) detention. The regulation

provides that an officer may require the posting of a bond to ensure an

alien complies with the conditions of a supervision order. Id. As

Plaintiffs acknowledge, this regulation remains in effect.

ALEMAN GONZALEZ V. BARR 37

explained, however, that when an intervening decision from

a higher authority does not “change the state of the law,” but

instead “clarifie[s] and reinforce[s]” law that existed at the

time of the prior circuit decision, it is unlikely to satisfy the

Miller standard. Lair, 697 F.3d at 1207; see also Nat’l Fed’n

of the Blind v. United Airlines, Inc., 813 F.3d 718, 728 (9th

Cir. 2016) (reasoning in part that a prior circuit decision was

“not so ‘clearly irreconcilable’” with an intervening

Supreme Court decision because the intervening decision

did not “represent a significant shift” in the relevant

jurisprudence). The dissent identifies nothing new in

Jennings regarding the canon’s application that Diouf II

failed to articulate in applying the canon. 9 As our analysis

shows, Jennings did not do so but rather engaged in

statutory-specific applications of the canon. We thus reject

the argument that Diouf II’s application of the canon to

§ 1231(a)(6) is clearly irreconcilable with Jennings’s mode

of applying the canon. 10

9

Our court did not decide Diouf II in a statutory vacuum. Rather,

that decision’s construction of § 1231(a)(6) followed Zadvydas, which

identified ambiguity in § 1231(a)(6)’s text regarding the government’s

authority to detain an alien, and two earlier circuit precedents which

construed § 1231(a)(6) to authorize release on bond. Diouf I, 542 F.3d

at 1234; Doan v. I.N.S., 311 F.3d 1160 (9th Cir. 2002). Diouf II relied

on these decisions to apply the canon. See Diouf II, 634 F.3d at 1087–

88, 1091–92 & nn.10–13 (referring to Zadvydas on multiple occasions

in the context of applying the canon); id. at 1089 (referring to Diouf I,

which in turn relied on Doan).

10

For the first time, in its reply brief, the Government argues that

Jennings established a framework that “obligated” the district court to

look first to “Zadvydas’s construction of § 1231(a)” and then to consider

Diouf II’s application of the canon of constitutional avoidance to

determine whether Diouf II comported with Zadvydas. We do not

normally consider arguments raised for the first time in a reply brief. See

38 ALEMAN GONZALEZ V. BARR

We also reject the Government’s contention that

Jennings overrides our court’s conclusion that § 1231(a)(6)

authorizes release on bond—a conclusion central to Diouf

II’s application of the canon to the statute. Diouf II’s

construction of § 1231(a)(6) to require a bond hearing

plainly followed from two of our decisions that construed the

statute to encompass bond as a condition of release from

detention that the statute authorizes.

We first construed § 1231(a)(6) to allow an alien’s

release on bond in Doan v. I.N.S., 311 F.3d 1160 (9th Cir.

2002), a case we decided shortly after Zadvydas. There, we

observed that §§ 1231(a)(3) and 1231(a)(6) authorize an

alien’s release from detention on terms of supervision. We

determined that “a bond is well within the kinds of

conditions contemplated by the Supreme Court in Zadvydas,

where the Court observed that 8 C.F.R. § 241.5 establishes

conditions of release.” Id. at 1161 (citing Zadvydas,

533 U.S. at 688–89, 695–96). Pursuant to that regulation,

the government had required an alien to post bond as a

condition of release. Id. Thus, we rejected the alien’s

“contention that because a bond is not expressly listed as a

condition in the statute, imposition of any bond as a

condition of release is unlawful.” Id. at 1162. Building on

Doan, in Diouf I, we rejected the government’s argument

that “Diouf was statutorily ineligible for release on bond” as

an alien detained pursuant to § 1231(a)(6) because “[w]e

have specifically construed § 1231(a)(6) to permit release on

Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). Nevertheless,

even considering the argument, we readily reject it for the simple reason

that the Government reads into Jennings a “framework” that the Court

neither articulated, nor even hinted at.

ALEMAN GONZALEZ V. BARR 39

bond.” Diouf I, 542 F.3d at 1234 (citing Doan, 311 F.3d

at 1160).

Relying on these earlier precedents, Diouf II applied the

canon of constitutional avoidance to construe § 1231(a)(6)

not only as authorizing release on bond, but as requiring a

bond hearing in light of the constitutional issue of prolonged

detention. The Government does not acknowledge our

decisions construing § 1231(a)(6)’s allowance for release to

encompass release on bond, nor does the Government

acknowledge Diouf II’s reliance on them. Diouf II, 634 F.3d

at 1089 (citing Diouf I, 542 F.3d at 1234; 8 C.F.R.

§ 241.5(b)). Were we to accept the Government’s argument

that § 1231(a)(6) does not even authorize release on bond,

we would have to abrogate not only Diouf II, but also Doan

and Diouf I, on which Diouf II’s analysis of § 1231(a)(6)

rested. 11 But neither Doan nor Diouf I relied on the canon

to construe § 1231(a)(6), and thus Jennings does not

undercut either of them. We otherwise see nothing in either

decision that is clearly irreconcilable with Jennings and

therefore we are not free to overrule them. Miller, 335 F.3d

11

The dissent sees “no ineluctable reason” why we would need to

overrule these precedents to accept the Government’s argument, Dissent

at 65 n.12, and explains them away as merely concerned with the

government’s authority to release an alien on bond to arrive at the

conclusion that Diouf II failed to identify a plausible basis in

§ 1231(a)(6)’s text for a bond hearing requirement, id. at 63–66. We do

not understand this reasoning. Whether a statute authorizes release on

bond is the necessary predicate to whether that statute can be construed

to require such release pursuant to a bond hearing. Ignoring these

commonsense propositions, the dissent elides Diouf II’s application of

the canon to construe § 1231(a)(6) not only to provide for a bond hearing,

but as requiring a bond hearing after six months of detention to avoid the

constitutional problem of prolonged detention.

40 ALEMAN GONZALEZ V. BARR

at 893. Because Jennings does not affect these decisions, we

reject the Government’s first set of arguments.

B. Jennings’s Rejection of Construing § 1226(a) to

Require Certain Procedural Protections Does Not

Undercut Diouf II

Jennings rejected, in relevant part, the addition of two

procedural protections onto § 1226(a): (1) “periodic bond

hearings every six months,” (2) “in which the Attorney

General must prove by clear and convincing evidence that

the alien’s continued detention is necessary[.]” Id. at 847–

48. The Government contends that § 1231(a)(6)’s

“operative language directly mirrors” § 1226(a) because

both provisions provide that the government may detain an

alien, and thus Jennings forecloses construing § 1231(a)(6)

to require these protections as well. More sweepingly, the

Government suggests that Jennings rejected construing

§ 1226(a) to require a bond hearing at all, thereby also

undercutting Diouf II’s construction of § 1231(a)(6) to

require a bond hearing. We dispose readily of two of the

Government’s arguments, and then turn to the issue of

“periodic bond hearings.”

1. Jennings Does Not Invalidate Singh’s

Constitutional Due Process Burden of Proof

Holding

We reject first the Government’s reliance on Jennings’s

rejection of construing § 1226(a) to require the government

to justify an alien’s continued detention by clear and

convincing evidence. Although Jennings undoubtedly

rejected construing the statute to require such a burden, that

rejection is inapposite here.

ALEMAN GONZALEZ V. BARR 41

Contrary to the Government’s suggestion, Diouf II did

not construe § 1231(a)(6) to impose such a burden, nor did

we premise our determination that the government must

meet such a burden on construing any of the immigration

detention statutes. In Singh, we explained that, “[n]either

Casas-Castrillon, nor any other Ninth Circuit, statutory or

regulatory authority specifies the appropriate standard of

proof at a Casas[-Castrillon] bond hearing.” 638 F.3d

at 1203 (emphasis added). Rather than construe any statute,

we determined that constitutional procedural due process

required the government to meet the clear and convincing

burden of proof standard. Singh, 638 F.3d at 1203–04; see

also Kashem v. Barr, 941 F.3d 358, 380 (9th Cir. 2019)

(acknowledging Singh’s clear and convincing evidence

burden as a procedural due process standard “which applies

in a range of civil proceedings involving substantial

deprivations of liberty.”). Rodriguez III, in turn, relied on

Singh to affirm a clear and convincing burden of proof for

bond hearings held pursuant to our constructions of the

immigration detention statutes. Rodriguez III, 804 F.3d

at 1087. Thus, Jennings’s rejection of layering such a

burden onto § 1226(a) as a matter of statutory construction

cannot undercut Diouf II, nor undercut our constitutional due

process holding in Singh.

2. Jennings Did Not Reject Reading § 1226(a) to

Authorize a Bond Hearing

Second, we reject the Government’s reading of Jennings

as foreclosing construction of § 1226(a) to authorize a bond

hearing at all. Rather than focus on the Court’s § 1226(a)

analysis, the Government misdirects us to the Court’s

observation that “neither §1225(b)(1) nor §1225(b)(2) says

anything whatsoever about bond hearings.” Jennings,

42 ALEMAN GONZALEZ V. BARR

138 S. Ct. at 842. The Court, however said no such thing

about § 1226(a).

Section 1226(a) provides that the Attorney General “may

release” an alien detained pursuant to that provision “on

bond” or “on conditional parole.” 8 U.S.C. § 1226(a)(2)(A),

(B). The Court expressly acknowledged that “[f]ederal

regulations provide that aliens detained under § 1226(a)

receive bond hearings at the outset of detention.” Jennings,

138 S. Ct. at 847 (citing 8 C.F.R. §§ 236.1(d)(1),

1236.1(d)(1)). Section 1226(a) does not use the word

“hearing.” The Court, however, did not suggest that the

regulations’ provision of those bond hearings was somehow

at odds with the government’s § 1226(a) detention authority

pursuant to the statutory text. 12 Instead, the Court took issue

with our court’s imposition of “procedural protections that

go well beyond the initial bond hearing established by

existing regulations” for aliens detained pursuant to

§ 1226(a). Id. (emphasis added). The Court’s rejection of

our court’s imposition of a six-month bond hearing

requirement for aliens detained pursuant to § 1226(a)

beyond the regulations’ provision of a single bond hearing

at the outset of detention is not the same as rejecting a

construction of § 1226(a) to authorize or require bond

hearings at all. Thus, we cannot agree with one of the

12

Like the Government, the dissent focuses on the absence of the

word “hearing” in § 1231(a)(6). Dissent at 65. In doing so, the dissent

ignores the absence of that word in § 1226(a), and Jennings’s analysis

regarding that provision. Tellingly, there is nothing in Jennings that

rejects reading § 1226(a) to require a bond hearing at all, as opposed to

our erroneous reading of that provision to require a bond hearing at a

particular point in time. As we explain in Part II.B.3, Jennings’s

rejection of our court’s bond hearing requirement for § 1226(a) cannot

be fairly applied to Diouf II’s construction of § 1231(a)(6) in light of

Zadvydas.

ALEMAN GONZALEZ V. BARR 43

fundamental premises underlying the Government’s

challenge to Diouf II based on the Court’s treatment of

§ 1226(a) in Jennings.

3. Jennings’s Rejection of a Six-Month Bond

Hearing Requirement for Aliens Detained

Pursuant to § 1226(a) Does Not Undercut

Diouf II’s Construction of § 1231(a)(6)

The merits of the Government’s clear irreconcilability

challenge to Diouf II’s bond hearing requirement ultimately

come down to Jennings’s rejection of construing § 1226(a)

to contain a periodic bond hearing requirement. Reviewing

the Court’s actual reasoning in Jennings, including with

respect to all the provisions at issue there, we cannot agree

that Jennings’s treatment of § 1226(a) on this issue

undercuts Diouf II.

In the decision that Jennings reversed, we used the

phrase “periodic bond hearing” to refer to bond hearings

every six months. Rodriguez III, 804 F.3d at 1089. The

Court used the phrase “periodic bond hearing” to encompass

a bond hearing held initially at six months of detention.

Jennings, 138 S. Ct. at 850–51 (“The Court of Appeals held

that aliens detained under the provisions at issue must be

given periodic bond hearings, and the dissent agrees. . . . But

the dissent draws that 6-month limitation out of thin air. . .

[N]othing in any of the relevant provisions imposes a 6-

month time limit on detention without the possibility of

bail.”). Even if we apply the Court’s definition, we fail to

see how Jennings undercuts Diouf II’s construction of

§ 1231(a)(6) to require a bond hearing after the government

detains an alien pursuant to this statutory provision for six

months and whose release or removal is not imminent.

44 ALEMAN GONZALEZ V. BARR

Similar to our observation in the discussion of the

Government’s constitutional avoidance argument, we

observe here that Jennings repeatedly qualified that its

rejection of a “periodic bond hearing” requirement applied

to the statutory provisions at issue there. Jennings, 138 S.

Ct. at 836 (“All parties appear to agree that the text of

[§§ 1225(b), 1226(a), 1226(c)], when read most naturally,

does not give detained aliens the right to periodic bond

hearings during the course of their detention.”); id. (“[T]he

Court of Appeals for the Ninth Circuit held that detained

aliens have a statutory right to periodic bond hearings under

the provisions at issue.” (emphasis added)); id. at 844 (“[A]

series of textual signals distinguishes the provisions at issue

in this case from Zadvydas’s interpretation of § 1231(a)(6).”

(emphasis added)); id. at 850–51 (“The Court of Appeals

held that aliens detained under the provisions at issue must

be given periodic bond hearings, and the dissent agrees. . . .

But the dissent draws that 6-month limitation out of thin air.

However broad its interpretation of the words ‘detain’ and

‘custody,’ nothing in any of the relevant provisions imposes

a 6-month time limit on detention without the possibility of

bail.” (emphasis added)); id. at 851 (“Because the Court of

Appeals erroneously concluded that periodic bond hearings

are required under the immigration provisions at issue here

. . .” (emphasis added)). The Court’s repeated use of this

language strongly suggests that we should not read the

Court’s rejection of a six-month bond hearing requirement

for § 1226(a) as undercutting Diouf II’s construction of

§ 1231(a)(6) to require a bond hearing after six months of

detention when an alien’s release or removal is not

imminent.

We find that conclusion inescapable when we look at

Jennings’s careful focus on the text of the provisions at issue

there and the ways in which they differ from § 1231(a)(6)

ALEMAN GONZALEZ V. BARR 45

and thus whether Zadvydas’s reasoning could apply to the

other provisions at all. In rejecting our constructions of

§§ 1225(b)(1) and (b)(2) to contain an implicit six-month

time limit, the Court underscored that Zadvydas applied the

canon to § 1231(a)(6) based on ambiguity in the provision’s

“may be detained” language and because the provision

contained no limitation on the permissible length of

detention. Jennings, 138 S. Ct. at 843 (noting that in contrast

to §§ 1225(b)(1) and (b)(2), “Congress left the permissible

length of detention under §1231(a)(6) unclear.”); Zadvydas,

533 U.S. at 697. Rather than allow the government to

subject an alien to potentially indefinite detention, as

Jennings explained, Zadvydas construed § 1231(a)(6) to

hold that “an alien who has been ordered removed may not

be detained beyond ‘a period reasonably necessary to secure

removal’” with “six months a[s] a presumptively reasonable

period.” Jennings, 138 S. Ct. at 843 (quoting Zadvydas,

533 U.S. at 699 and citing Zadvydas, 533 U.S. at 701). As

the Court explained, detention pursuant to §§ 1225(b)(1) or

(b)(2) presented no such issue based on the clear text of those

provisions. Id. at 843–44.

The Court’s analysis of § 1226(a) in Jennings was

sparse. But the Court’s reasoning in its discussion of

§§ 1225(b)(1) and (b)(2) applies to § 1226(a) as well.

Contrary to the Government’s singular focus on §§ 1226(a)

and 1231(a)(6)’s use of the “may be detained” language, the

provisions are materially distinct in the meaning of this

language. Unlike § 1231(a)(6), “§ 1226(a) authorizes the

Attorney General to arrest and detain an alien ‘pending a

decision on whether the alien is to be removed from the

United States.’” Id. at 847 (quoting 8 U.S.C. § 1226(a)).

Thus, as a textual matter, discretionary detention pursuant to

§ 1226(a) has an end point, unlike discretionary detention

pursuant to § 1231(a)(6) absent a limiting construction.

46 ALEMAN GONZALEZ V. BARR

Pursuant to the Court’s own reasoning elsewhere in

Jennings, the six-month presumptive time limitation that

Zadvydas read into § 1231(a)(6) to address potentially

indefinite detention pursuant to that provision does not

“fairly apply” to detention pursuant to § 1226(a).

This material difference between §§ 1226(a) and

1231(a)(6) prevents us from concluding that Jennings’s

rejection of construing § 1226(a) to require a bond hearing

at six months applies to § 1231(a)(6). 13 Unlike with any of

the other immigration detention statutes at issue in Jennings,

Diouf II concerned the statutory provision at issue in

Zadvydas and adopted a definition of prolonged detention

that coincides with the presumptive six-month time limit that

Zadvydas read into that provision based on § 1231(a)(6)’s

textual ambiguity. Compare Zadvydas, 533 U.S. at 701 with

Diouf II, 634 F.3d at 1091–92 & n.13. Further echoing

13

The dissent’s analysis proceeds on the mistaken assumption that

there are no material differences between §§ 1226(a) and 1231(a)(6).

Dissent at 61–62 n.2. In doing so, the dissent does not engage with

Jennings’s reasoning and analysis regarding the statutory provisions at

issue there. Moreover, the dissent commits the converse of the error that

led the Court to reject our application of the canon to the other

immigration detention statutes. Dissent at 67 (contending that Jennings

rejected the “scaffolding upon which we had erected” additional

procedural protections for § 1226(a) detainees.). Whereas as we had

ignored the textual differences amongst the immigration detention

statutes to apply the canon to those statutes in the wake of the Court’s

application of the canon to § 1231(a)(6) in Zadvydas, the dissent

uncritically applies Jennings’s limited analysis concerning § 1226(a) to

Diouf II’s construction of § 1231(a)(6) despite the ways in which

Jennings’s reasoning shows that these provisions are materially distinct.

Jennings’s actual analysis prevents us from finding clearly

irreconcilability here. Cf. Murray, 934 F.3d at 1106 n.6 (finding clear

irreconcilability when there were “no meaningful textual difference[s]”

in the statutory text at issue there and the different provisions considered

by two intervening decisions).

ALEMAN GONZALEZ V. BARR 47

Zadvydas, Diouf II also qualified that its construction of

§ 1231(a)(6) to require a bond hearing does not apply if an

alien’s release or removal is imminent. Compare Zadvydas,

533 U.S. at 701 (“[A]n alien may be held in confinement

until it has been determined that there is no significant

likelihood of removal in the reasonably foreseeable future.”)

with Diouf II, 634 F.3d at 1092 n.13.

Although Jennings rejected our court’s reliance on

Zadvydas to construe the other immigration detention

statutes and rejected construing § 1226(a) to require a six-

month bond hearing, we cannot find in Jennings’s reasoning

a rationale that clearly undercuts Diouf II’s six-month bond

hearing requirement for aliens detained pursuant to

§ 1231(a)(6). Contrary to the dissent’s view, Jennings

shows that Zadvydas’s construction of § 1231(a)(6) provides

an “arguable statutory foundation,” 138 S. Ct. at 842, for

Diouf II’s six-month bond hearing requirement that is

entirely absent from the other immigration detention

provisions. 14

14

The dissent posits that “we have given short shrift to” the

motivations underlying the Court’s decision in Zadvydas, specifically

that the decision “was largely motivated by the fact that the possibility

of removal of the aliens before it was truly remote because the countries

to which they could be removed were highly unlikely to accept them at

any time in the foreseeable future.” Dissent at 63 n.4. That is incorrect.

As the Court has instructed, Zadvydas’s construction of § 1231(a)(6)

applies to all aliens detained pursuant to § 1231(a)(6) even if “the

constitutional concerns that influenced our statutory construction in

Zadvydas are not present for aliens” in other circumstances. Clark, 543

U.S. at 380. And the Court has rejected the notion that statutory

ambiguity disappears based on the circumstances of a given alien

detained pursuant to § 1231(a)(6). “Be that as it may, it cannot justify

giving the same detention provision a different meaning when such

aliens are involved. It is not at all unusual to give a statute’s ambiguous

48 ALEMAN GONZALEZ V. BARR

In its reply brief, the Government makes much of that

fact that Jennings called into question Zadvydas’s reading of

§ 1231(a)(6) as a “notably generous application of the

canon.” 138 S. Ct. at 843. But the Court did not overrule

Zadvydas; its statutory analysis, including application of the

canon, remain intact. 15 We therefore cannot conclude that

Diouf II’s construction of § 1231(a)(6) to require a bond

hearing after six months of detention runs afoul of Jennings.

We understand that the Government strenuously disagrees

with Diouf II’s bond hearing requirement as inconsistent

with the habeas framework that Zadvydas outlined and with

the Government’s post-Zadvydas regulations. That

disagreement, however, has nothing to do with whether

Jennings, by its own terms, undercuts Diouf II’s construction

of § 1231(a)(6). Accordingly, we reject the Government’s

second argument.

language a limiting construction called for by one of the statute’s

applications, even though other of the statute’s applications, standing

alone, would not support the same limitation.” Id. (emphasis in original).

15

In failing to account for Jennings’s reasoning regarding Zadvydas

and Diouf II’s reliance on Zadvydas’s reading of § 1231(a)(6), the

dissent characterizes the textual ambiguity in § 1231(a)(6) that Zadvydas

identified as a “narrow ambiguity.” Dissent at 63–64. We know of no

basis in our clear irreconcilability jurisprudence that would allow us to

overrule the prior decision of a three-judge panel on the basis of a reason

that appears nowhere in the intervening authority’s decision. Neither

Jennings, nor Zadvydas said anything about the scope of the ambiguity

in § 1231(a)(6) that Zadvydas identified. Contrary to the dissent’s view,

Jennings’s questioning of Zadvydas’s particular application of the canon

to that ambiguity—the adoption of a six-month time limitation that

Jennings rejected as a matter of statutory construction for the other

immigration detention statutes—says nothing about the ambiguity’s

scope.

ALEMAN GONZALEZ V. BARR 49

C. Diouf II’s Reliance on Casas-Castrillon

As a final matter, the Government contends that Diouf II

is clearly irreconcilable with Jennings based on the inter-

related nature of our decisions in Casas-Castrillon, Diouf II,

and Rodriguez III. The Government’s argument is as

follows: (1) Diouf II extended Casas-Castrillon’s

construction of § 1226(a) to individuals subject to prolonged

detention pursuant to § 1231(a)(6), (2) Rodriguez III also

applied Casas-Castrillon’s construction of § 1226(a), (3)

Jennings reversed Rodriguez III, and, thus, by implication,

(4) Jennings and Diouf II are clearly irreconcilable. We

reject these arguments for two reasons.

First, we think that the Government misreads both

Casas-Castrillon and Jennings. As we have explained,

Jennings did not invalidate construing § 1226(a) to authorize

a bond hearing at all, but rather rejected construing § 1226(a)

to require a bond hearing at six months in addition to the

government’s existing bond hearing regulations. More

importantly here, Casas-Castrillon did not construe

§ 1226(a) in the manner that the Court rejected in Jennings.

Casas-Castrillon applied the canon of constitutional

avoidance to construe § 1226(a)’s authorization for release

of an alien on bond as requiring an individualized bond

hearing when an alien is subject to prolonged detention.

535 F.3d at 951. By the time our court decided Rodriguez

III, we had applied Diouf II’s definition of prolonged

detention as detention lasting longer than six months to

§ 1226(a), which transformed Casas-Castrillon’s bond

hearing requirement into a six-month bond hearing

requirement. See Rodriguez II, 715 F.3d at 1139 (“Diouf II

strongly suggested that immigration detention becomes

prolonged at the six-month mark regardless of the

authorizing statute. . . . Even if Diouf II does not squarely

50 ALEMAN GONZALEZ V. BARR

hold that detention always becomes prolonged at six months,

that conclusion is consistent with the reasoning of Zadvydas,

Demore, Casas[-Castrillon], and Diouf II, and we so hold.”);

see also Rodriguez III, 804 F.3d at 1078 & n.7. By its terms,

Jennings invalidates that aspect of our case law construing

§ 1226(a), but does not go further. 16

Second, even if we concluded here that Jennings

overruled Casas-Castrillon, we do not see how that could

undercut Diouf II entirely. Diouf II’s construction of

§ 1231(a)(6) did not rest solely on its purported extension of

Casas-Castrillon to aliens detained pursuant to § 1231(a)(6).

Diouf II, 634 F.3d at 1086. As we have explained, Diouf II

considered a number of arguments particular to § 1231(a)(6)

itself that could not have applied to Casas-Castrillon’s

analysis of § 1226(a). Id. at 1086–92. More critically, as

Jennings’s reasoning makes clear, Casas-Castrillon

concerned a statutory provision that is materially different

from the provision at issue in Diouf II. Thus, we conclude

that Diouf II can stand irrespective of its reliance on Casas-

16

The dissent contends that in rejecting the Government’s challenge

to Diouf II based on its argument here, we have suggested that “some of

Casas-Castrillon survives Jennings[.]” Dissent at 68 n.14. Our response

is twofold. For one, we have done nothing more than explain why we

think the Government’s challenge to Diouf II based on Jennings is

wrong. We have not decided what specifically remains of Casas-

Castrillon’s statutory holding after Jennings. Second, we do not take

issue with the dissent’s correct understanding that Jennings invalidated

procedural protections that go beyond what the government’s regulations

provide. Id. However, we otherwise part ways with the dissent’s reading

of Jennings. As we have explained, Jennings’s approval of the

government’s regulations to provide bond hearings for aliens detained

pursuant to § 1226(a) necessarily assumes that § 1226(a) can be

plausibly read to authorize such hearings in the first place.

ALEMAN GONZALEZ V. BARR 51

Castrillon.17 Because we reject this final argument, we

conclude that the Government has not shown that Diouf II is

clearly irreconcilable with Jennings.

D. Additional Support for Diouf II After Jennings

Apart from rejecting the Government’s arguments, we

find additional support for our conclusion that Diouf II is not

clearly irreconcilable with Jennings based on the Third

Circuit’s decision in Guerrero-Sanchez v. Warden York

County Prison, 905 F.3d 208 (3d Cir. 2018).

In Guerrero-Sanchez, the Third Circuit considered

whether the government could subject the alien petitioner in

that case to prolonged detention without providing an

individualized bond hearing. The Third Circuit first

determined that the alien—who had a reinstated removal

order and was detained pending his pursuit of withholding-

only relief from removal—was subject to detention pursuant

to § 1231(a)(6). 18 Id. at 213–19. Having located the

17

The dissent’s reliance on Nunez-Reyes v. Holder, 646 F.3d 684,

690 (9th Cir. 2011) (en banc) misses the mark. For one, Nunez-Reyes

involved our court sitting en banc, not a three-judge panel determining

whether an earlier circuit precedent was clearly irreconcilable with the

decision of an intervening authority. We are faced with different

constraints compared with our court sitting en banc. Second, unlike in

Nunez-Reyes, there is no single “rule” on which Diouf II relied that

would warrant a conclusion that Jennings’s rejection of any aspect of

Casas-Castrillon necessarily would invalidate Diouf II in its entirety.

18

We recognize that there is a circuit split on the issue of whether

an alien subject to a reinstated removal order who pursues withholding-

only relief is subject to detention pursuant to § 1226(a) or § 1231(a)(6).

Both our court and the Third Circuit treat such detention as authorized

pursuant to § 1231(a)(6). Guerrero-Sanchez, 905 F.3d at 213–19;

Padilla-Ramirez, 882 F.3d at 830–32. In contrast, the Second and Fourth

52 ALEMAN GONZALEZ V. BARR

government’s detention authority in § 1231(a)(6), the Third

Circuit considered whether the petitioner was entitled to a

bond hearing at all. Id. at 219. To resolve that issue, the

Third Circuit considered, in relevant part, Zadvydas,

Jennings, and Diouf II.

Rejecting the government’s argument there that

“Zadvydas resolves the only ambiguity in the text of

§ 1231(a)(6),” id. at 220, the Third Circuit reasoned that

Zadvydas did “not explicitly preclude courts from construing

§ 1231(a)(6) to include additional procedural protections

during the statutorily authorized detention period, should

those protections be necessary to avoid detention that could

raise different constitutional concerns,” id. at 221 (emphasis

in original). Finding that the petitioner’s 637-day detention

without bond raised serious constitutional concerns, id., the

Third Circuit declined to address whether the petitioner’s

continued confinement violated the Due Process Clause. Id.

at 221, 223. Instead, the court asked whether the canon of

constitutional avoidance might sustain a reading of

§ 1231(a)(6) that would require the provision of a bond

hearing. Id. at 223.

The Third Circuit acknowledged Jennings’s discussion

regarding the proper invocation of the canon and Jennings’s

holding that the canon could not be applied to “other

provisions in the INA” that use the phrase “shall detain.” Id.

(“We . . . invoke the canon of constitutional avoidance so

long as ‘the statute is found to be susceptible of more than

one construction.’ (quoting Jennings, 138 S. Ct. at 842)).

Turning to § 1231(a)(6)’s text and alluding to Zadvydas, the

Circuits treat such detention as authorized pursuant to § 1226(a).

Guzman Chavez v. Hott, 940 F.3d 867, 880−82 (4th Cir. 2019); Guerra

v. Shanahan, 831 F.3d 59, 64 (2d Cir. 2016).

ALEMAN GONZALEZ V. BARR 53

Third Circuit noted that the statute’s use of the phrase “may

be detained” “invites us to apply the canon of constitutional

avoidance[.]” Id. at 223–24. “In order to avoid determining

whether the petitioner’s detention violates the Due Process

Clause,” the Third Circuit expressly “adopt[ed] the Ninth

Circuit’s limiting construction of § 1231(a)(6) that ‘an alien

facing prolonged detention under [that provision] is entitled

to a bond hearing before an immigration judge and is entitled

to be released from detention unless the government

establishes that the alien poses a risk of flight or a danger to

the community.’” Id. at 224 (quoting Diouf II, 634 F.3d

at 1092). The Third Circuit also adopted our clear and

convincing evidence standard set forth in Singh. Id. at n.12

(“The Government must meet its burden in such bond

hearings by clear and convincing evidence. (citing Singh,

638 F.3d at 1203–04)). The Third Circuit’s express and

reasoned adoption of Diouf II even after Jennings shows that

we do not break new ground in concluding that Diouf II is

not clearly irreconcilable with Jennings.

Ignoring Guerrero-Sanchez, the Government quotes

from the Sixth Circuit’s decision in Hamama v. Homan,

912 F.3d 869 (6th Cir. 2018), without any argument about

how that case should affect our clear irreconcilability

analysis here. To the extent the Government intended to

argue that Hamama should change our analysis, we reject

that argument.

In Hamama, the Sixth Circuit vacated a district court’s

class-wide preliminary injunction concerning §§ 1226(c)

and 1231(a)(6) detention claims, pursuant to which the

government was required to provide class members with

individualized bond hearings. Id. at 873–74. With respect

to those claims, the Sixth Circuit determined that 8 U.S.C.

§ 1252(f)(1), a statute that prohibits federal courts other than

54 ALEMAN GONZALEZ V. BARR

the Supreme Court from enjoining the operation of §§ 1221–

31 except with respect to an individual alien, barred

jurisdiction over class-wide injunctive relief there. Id. at

877. In rejecting the petitioners’ argument that they sought

injunctive relief pursuant to a statutory construction of the

relevant detention statutes, the Sixth Circuit determined that

“Jennings foreclosed any statutory interpretation that would

lead to what Petitioners want.” Id. at 879. In the Sixth

Circuit’s view, “the district court . . . created out of thin air a

requirement for bond hearings that does not exist in the

statute; and adopted new standards that the government must

meet at the bond hearings.” Id. at 879–80.

Hamama does not compel a different conclusion about

whether Diouf II is clearly irreconcilable with Jennings for

two reasons. First, despite remarking that “the Jennings

Court chastised the Ninth Circuit for ‘erroneously

conclud[ing] that periodic bond hearings are required under

the immigration provisions at issue here,” the Sixth Circuit

extended Jennings to § 1231 without any analysis regarding

whether Jennings’s reasoning fairly applies to that

provision. Id. at 879 (quoting Jennings, 138 S. Ct. at 850)

(emphasis added). Although we do not question Hamama’s

determination insofar as it concerns the provisions actually

at issue in Jennings, we cannot agree with the uncritical

extension of Jennings to § 1231(a)(6), particularly given our

foregoing analysis of Jennings. Second, unlike Guerrero-

Sanchez, Hamama neither acknowledged, nor grappled with

our decision in Diouf II. Therefore, we do not find Hamama

to have any persuasive value here in determining whether we

remain bound by Diouf II even after Jennings.

The dissent takes issue with our reliance on Guerrero-

Sanchez. Dissent at 63–64 & n.5. Yet, in so doing, the

dissent errs by mistaking the clear irreconcilability inquiry

ALEMAN GONZALEZ V. BARR 55

that confronts us with an invitation to opine on how we

would decide the statutory construction question that Diouf

II resolved. 19 To be clear, our reliance on Guerrero-Sanchez

concerns whether we may apply Diouf II even after

Jennings. In determining whether a prior circuit precedent

is clearly irreconcilable with an intervening authority’s

decision, we have looked to how other circuits have

addressed the issue in light of the intervening decision. See

Murray, 934 F.3d at 1107 (observing that the court’s clear

irreconcilability conclusion “comport[ed] with the decisions

of all of our sister circuits that have considered this question

after” the Supreme Court’s Gross and Nassar decisions); In

re Zappos.com, Inc., 888 F.3d 1020, 1026 n.6 (9th Cir. 2018)

(noting that the panel’s conclusion that earlier circuit

precedent was not clearly irreconcilable with an intervening

Supreme Court decision was “consistent” with sister circuit

decisions to have considered the issue). Guerrero-Sanchez

is the only reasoned decision of another circuit addressing

the relationship between Diouf II’s construction of

§ 1231(a)(6) and Jennings, and it determined that Jennings

does not undercut Diouf II’s construction. We therefore

respectfully disagree with the dissent.

19

The dissent asserts that we and Guerrero-Sanchez “mistakenly

perceive[] the narrow ambiguity in § 1231(a)(6) identified by Zadvydas”

to justify Diouf II’s construction of § 1231(a)(6). Dissent 63–64. We

have already explained that the dissent’s characterization of the

ambiguity that Zadvydas identified is not justified by Jennings or

Zadvydas. We otherwise note that the dissent’s view contravenes how

at least one other circuit understood Zadvydas prior to Jennings. See

Hernandez-Carrera v. Carlson, 547 F.3d 1237, 1249 (10th Cir. 2008)

(“In Zadvydas, the Supreme Court did not purport to ‘resolve’ the

statutory ambiguity in § 1231(a)(6) once and for all. . . . In no way, . . .

did the Court signal that its interpretation was the only reasonable

construction of § 1231(a)(6).”).

56 ALEMAN GONZALEZ V. BARR

E. The Outcome of the Clearly Irreconcilable

Analysis

We have carefully considered Jennings, Diouf II, and the

parties’ arguments as well as the dissent’s views. As we

have explained, there is some tension between Diouf II and

Jennings. But, as members of a three-judge panel, we are

not free to overrule the prior decision of a three-judge panel

merely because we sense some tension with that decision

and the decision of an intervening higher authority even if

we might have reached a different outcome than the prior

decision in light of that intervening authority. Consumer

Def., 926 F.3d at 1213 (“[M]ere tension between the cases

does not meet the higher standard of irreconcilable

conflict.”). Taken together, Jennings’s limited focus on the

provisions at issue in that case and Jennings’s analysis and

reasoning concerning those provisions compel us to

conclude that we remain bound by Diouf II’s construction of

§ 1231(a)(6). Neither the Government’s arguments, nor the

dissent have persuaded us otherwise. Accordingly, we

conclude that the district court properly determined that

Plaintiffs are likely to succeed on the merits of their

§ 1231(a)(6) statutory claims.

III. The Preliminary Injunction Is Not Otherwise

Contrary to Law

Although we have concluded that Plaintiffs are likely to

succeed on the merits of their statutory claims, the

Government contends that we must vacate the preliminary

injunction because of two other asserted legal errors. We

disagree because we find no such errors.

First, the Government argues that Zadvydas already

applied the canon to § 1231(a)(6) to prohibit indefinite

definition, pursuant to which Zadvydas specified a particular

ALEMAN GONZALEZ V. BARR 57

means by which an alien can challenge detention in a habeas

petition. The Government contends that the district court

could not re-apply the canon to § 1231(a)(6). The

Government, however, cannot properly charge the district

court with erroneously “re-applying” the canon of

constitutional avoidance to § 1231(a)(6). Indeed, the

Government acknowledges that the district court merely

followed Diouf II’s construction of § 1231(a)(6).

The Government’s true complaint is with Diouf II itself.

As in Diouf II, the Government argues here that

§ 1231(a)(6)’s text cannot be interpreted to require a bond

hearing for aliens detained under the provision. Diouf II,

634 F.3d at 1089. And, as in Diouf II, the Government

argues that its post-Zadvydas regulations adequately address

any constitutional concerns that may arise from an alien’s

continued detention pursuant to § 1231(a)(6). Diouf II,

634 F.3d at 1089–92. The Government’s attempt to

relitigate issues that Diouf II decided necessarily fails

because we have concluded that Diouf II remains controlling

precedent. Although the Government may disagree with

Diouf II’s wisdom, that disagreement does not give us

license to disregard Diouf II.

Second, the Government argues that Clark v. Martinez,

543 U.S. 371 (2005), stands for the proposition that courts

can apply only Zadvydas’s construction of § 1231(a)(6) in

all cases, and nothing more. Based on this reading of Clark,

the Government contends that the district court’s

preliminary injunction erroneously departs from the

framework Zadvydas established for federal habeas courts.

Contrary to the Government’s argument, Clark did not

announce a new rule of the canon of constitutional

avoidance, nor does Clark stand for the proposition that

Zadvydas’s construction of § 1231(a)(6) is the single

58 ALEMAN GONZALEZ V. BARR

permissible application of the canon to that provision.

Instead, in Clark, the Court held that Zadvydas’s

construction of § 1231(a)(6) “must” apply to all three

categories because “[t]he operative language of § 1231(a)(6)

. . . applies without differentiation to all three categories of

aliens that are its subject.” Clark, 543 U.S. at 378. Clark

thus requires applying § 1231(a)(6), including as judicially

construed, in the same manner for all categories of aliens

specified in the statute “without differentiation.” Id. at 378–

79. 20

Expressly acknowledging Clark, Diouf II requires the

Government to provide a bond hearing to any alien detained

under § 1231(a)(6) whose detention becomes prolonged and

whose release or removal is not imminent, Diouf II, 634 F.3d

at 1088 (citing Clark, 543 U.S. at 380–81); id. at 1084.

Consistent with Clark and Diouf II, the preliminary

injunction applies to the entire certified class of aliens that

our court treats as detained pursuant to § 1231(a)(6). 21 See

Padilla-Ramirez, 882 F.3d at 830–32. Thus, we reject the

Government’s remaining challenges to the preliminary

injunction.

20

In Clark, the Court rejected the dissent’s contrary view that the

government’s § 1231(a)(6) detention authority applies differently across

categories of aliens as a “novel interpretative approach” that “would

render every statute a chameleon, its meaning subject to change

depending on the presence or absence of constitutional concerns in each

individual case.” 543 U.S. at 382. This aspect of Clark does not support

the Government’s position.

21

The certified class includes aliens with administratively final

removal orders under 8 U.S.C. § 1228(b). The Government does not

argue that such aliens are not subject to detention pursuant to § 1231(a),

and thus has waived any such argument in this appeal. We therefore

assume that such aliens may be detained pursuant to § 1231(a)(6).

ALEMAN GONZALEZ V. BARR 59

CONCLUSION

We conclude that the district court correctly determined

that Plaintiffs are likely to succeed on their § 1231(a)(6)

statutory claims. Thus, we affirm the district court’s grant

of a preliminary injunction.

AFFIRMED.

FERNANDEZ, Circuit Judge, dissenting:

I agree with the majority that Plaintiffs’ likelihood of

success on their statutory claim turns on whether Diouf v.

Napolitano (Diouf II), 634 F.3d 1081, 1085–86 (9th Cir.

2011), remains binding law in our circuit. I also agree that

we must follow Diouf II unless a subsequent Supreme Court

case has “undercut [its] theory or reasoning . . . in such a way

that the cases are clearly irreconcilable.” Miller v. Gammie,

335 F.3d 889, 900 (9th Cir. 2003) (en banc). And I agree

that “‘is a high standard’” to meet. Close v. Sotheby’s, Inc.,

894 F.3d 1061, 1073 (9th Cir. 2018). That standard is met

here because Diouf II’s reasoning is clearly irreconcilable

with Jennings v. Rodriguez, __ U.S. __, __, 138 S. Ct. 830,

851, 200 L. Ed. 2d 122 (2018). Therefore, I respectfully

dissent.

As an intermediate appellate court, one goal of our

jurisprudence is “to preserve the consistency of circuit law.”

Miller, 335 F.3d at 900. But this laudable objective “must

not be pursued at the expense of creating an inconsistency

between our circuit decisions and the reasoning” of the

Supreme Court. Id. Deciding whether Jennings and Diouf

II are irreconcilable is not merely a matter of deciding

whether their ultimate holdings might coexist in the abstract.

60 ALEMAN GONZALEZ V. BARR

See United States v. Lindsey, 634 F.3d 541, 550 (9th Cir.

2011); see also Ortega-Mendez v. Gonzales, 450 F.3d 1010,

1019 (9th Cir. 2006). Instead, the question is whether the

Supreme Court has so “undercut the theory or reasoning” of

Diouf II “that the cases are [now] clearly irreconcilable.”

Miller, 335 F.3d at 900; see also Ne. Ohio Coal. for the

Homeless v. Husted, 831 F.3d 686, 720–21 (6th Cir. 2016).

That inquiry “requires us to look at more than [the Court’s]

surface conclusions,” and to examine whether the Court’s

“‘approach . . . [is] fundamentally inconsistent with’” our

earlier reasoning. Rodriguez v. AT & T Mobility Servs. LLC,

728 F.3d 975, 979 (9th Cir. 2013). That includes the Court’s

“‘mode of analysis.’” Miller, 335 F.3d at 900. If “the

conclusion reached in our circuit precedent [can] no longer

[be] ‘supported for the reasons stated’ in that decision,” the

circuit precedent must yield. Rodriguez, 728 F.3d at 979;

see also Ortega-Mendez, 450 F.3d at 1020. We have

frequently applied that principle and deviated from our prior

holdings. See, e.g., Murray v. Mayo Clinic, 934 F.3d 1101,

1105 (9th Cir. 2019), petition for cert. filed, 88 U.S.L.W.

3265 (U.S. Feb. 3, 2020) (No. 19-995); Rodriguez, 728 F.3d

at 981; United States ex rel. Air Control Techs., Inc. v. Pre

Con Indus., Inc., 720 F.3d 1174, 1177–78 (9th Cir. 2013);

Lindsey, 634 F.3d at 549–50; Ortega-Mendez, 450 F.3d at

1018–20; Galbraith v. County of Santa Clara, 307 F.3d

1119, 1123–25 (9th Cir. 2002).

A close examination of Diouf II and Jennings reveals

that the reasoning supporting Diouf II’s conclusion that

8 U.S.C. § 1231(a)(6) requires aliens be afforded

individualized bond hearings after six months of detention is

no longer viable. In Diouf II, we held “that an individual

facing prolonged immigration detention under 8 U.S.C.

§ 1231(a)(6) is entitled to release on bond unless the

government establishes that he is a flight risk or a danger to

ALEMAN GONZALEZ V. BARR 61

the community.” Diouf II, 634 F.3d at 1082. We extended

procedural protections that we had previously granted to

aliens facing prolonged detention under 8 U.S.C. § 1226(a) 1

to those detained under § 1231(a)(6), because otherwise

their “prolonged detention . . . would raise ‘serious

constitutional concerns.’” Diouf II, 634 F.3d at 1086. We

thus “appl[ied] the canon of constitutional avoidance and

construe[d] § 1231(a)(6) as requiring an individualized bond

hearing, before an immigration judge, for aliens facing

prolonged detention.” Id. Jennings is clearly irreconcilable

with Diouf II’s reasoning, both with regard to our application

of the canon of constitutional avoidance and our reliance on

Casas-Castrillon.2

1

Casas-Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942, 949–

51 (9th Cir. 2008).

2

The majority mentions several times that Jennings, __ U.S. at __,

138 S. Ct. at 836, 842, 843–44, 850–51, expressly limited its holding to

the statutory provisions that were before it (i.e., 8 U.S.C. §§ 1225(b),

1226(a), (c)). But that does “not deprive it of all persuasive force.” Univ.

of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 351, 133 S. Ct. 2517,

2527, 186 L. Ed. 2d 503 (2013). Thus, to the extent that the majority

relies upon that limitation to justify its reconciling of Jennings, __ U.S.

at __, 138 S. Ct. at 851, and Diouf II, 634 F.3d at 1086, I disagree. As

we have said, “the issues decided by the higher court need not be

identical in order to be controlling.” Miller, 335 F.3d at 900; see also

Gahagan v. USCIS, 911 F.3d 298, 302 (5th Cir. 2018) (“That two

decisions involve different statutes is not dispositive.”). For example, in

Murray, 934 F.3d at 1105–07, we determined that the reasoning of one

of our earlier circuit cases, Head v. Glacier Nw. Inc., 413 F.3d 1053,

1063–65 (9th Cir. 2005), was clearly irreconcilable with subsequent

Supreme Court cases. Neither of those Supreme Court cases addressed

the particular statutory provision that was before us in either Murray or

Head. Murray, 934 F.3d at 1105–07; see also Nassar, 570 U.S. at 351–

53, 133 S. Ct. at 2528; Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 173–

75, 129 S. Ct. 2343, 2348–49, 174 L. Ed. 2d 119 (2009). Nevertheless,

62 ALEMAN GONZALEZ V. BARR

Jennings establishes that we misused the canon of

constitutional avoidance in Diouf II. In Jennings, the

Supreme Court explained that the canon should be employed

only “‘after the application of ordinary textual analysis,’”

when “‘the statute is found to be susceptible of more than

one construction.’” Jennings, __ U.S. at __, 138 S. Ct. at

842; see also Clark v. Martinez, 543 U.S. 371, 385, 125 S.

Ct. 716, 726, 160 L. Ed. 2d 734 (2005). Diouf II engaged in

no textual analysis of § 1231(a)(6): we did not identify a

textual ambiguity in the statute regarding a bond hearing

requirement, nor did we identify any plausible basis in the

statutory text for such a hearing. See Diouf II, 634 F.3d

at 1089; see also Clark, 543 U.S. at 379, 381, 125 S. Ct.

at 723, 724. Diouf II’s application of the constitutional

avoidance canon without first analyzing the text of the

statute or identifying a relevant ambiguity is clearly

irreconcilable with Jennings. Instead of properly applying

the canon of constitutional avoidance to § 1231(a)(6), Diouf

II simply grafted Casas-Castrillon’s reasoning as to

§ 1226(a) detainees onto § 1231(a)(6) detainees. Diouf II,

634 F.3d at 1089. We did not explain why that was

appropriate, notwithstanding our recognition that the text of

§ 1226(a) expressly mentions bond, while the text of

§ 1231(a)(6) does not. See id.; cf. Nassar, 570 U.S. at 352,

133 S. Ct. at 2528 (applying the same analysis when there is

no “meaningful textual difference” between the two statutes

at issue). That approach in Diouf II is irreconcilable with

Jennings.

we adopted the Supreme Court’s reasoning because there was “no

meaningful textual difference” between the statutes in the circumstances

at issue there. Murray, 934 F.3d at 1106 n.6; see also id. at 1106. The

same is true here. Thus, that Jennings and Diouf II analyzed different

statutes is not dispositive of their irreconcilability.

ALEMAN GONZALEZ V. BARR 63

The majority seeks support in the Third Circuit’s

decision that Diouf II’s reasoning remains sound because

“[t]he Supreme Court has already determined [in Zadvydas 3]

that the text of § 1231(a)(6) is ambiguous as to the due

process protections that it provides,” and that § 1231(a)(6)

could therefore be construed to require bond hearings.

Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d

208, 223–24 (3d Cir. 2018). However, like Diouf II and the

majority, the Third Circuit mistakenly perceived the narrow

ambiguity in § 1231(a)(6) identified by Zadvydas, in the

particular context presented there, as essentially equivalent

to a general determination that § 1231(a)(6) is “ambiguous

as to . . . due process” overall. Guerrero-Sanchez, 905 F.3d

at 223. 4 Our adopting the Third Circuit’s approach would

effectively allow courts to decide constitutional issues sub

silentio, without ever having to “find[] a statute

unconstitutional as applied.” Clark, 543 U.S. at 384, 125 S.

Ct. at 726. Instead, we should follow the procedure

described by Jennings: a court must identify “‘competing

plausible interpretations of [the] statutory text,’” in the

specific context of the matter at hand, before applying the

canon of constitutional avoidance. See Jennings, __ U.S.

3

Zadvydas v. Davis, 533 U.S. 678, 697, 121 S. Ct. 2491, 2502, 150

L. Ed. 2d 653 (2001) (“the word ‘may’ is ambiguous”).

4

By the way, it seems to me that the Third Circuit, and we, have

given short shrift to the fact that the Court’s opinion in Zadvydas was

largely motivated by the fact that the possibility of removal of the aliens

before it was truly remote because the countries to which they could be

removed were highly unlikely to accept them at any time in the

foreseeable future. Thus, detention was indefinite and potentially

permanent. See Zadvydas, 533 U.S. at 684–86, 690–91, 695–96, 121 S.

Ct. at 2496–97, 2498–99, 2502. Even so, the Court has dubbed the

decision in Zadvydas “notably generous.” Jennings, __ U.S. at __, 138

S. Ct. at 843; see also id. at __, 138 S. Ct. at 843–44 (the Court did not

expand that form of generosity).

64 ALEMAN GONZALEZ V. BARR

at __, 138 S. Ct. at 843; Clark, 543 U.S. at 379, 125 S. Ct.

at 723. Here, that would require us to identify an ambiguity

in the text of § 1231(a)(6) that produces a plausible reading

of the statute as requiring bond hearings. None is apparent

to me. 5

The majority decides that Diouf II conformed with

Jennings in interpreting the text of § 1231(a)(6) because it

noted that prior circuit precedent 6 and agency regulations7

had recognized the requirement of a bond as a reasonable

condition 8 of supervised release pursuant to the statute. See

Diouf II, 634 F.3d at 1089. But I fail to see how that

reasoning or line of authority supplies the necessary

plausible interpretation of the text of § 1231(a)(6) as

requiring a bond hearing. Those authorities arose out of

Congress’s explicit command to the Attorney General to

prescribe regulations governing the terms of an alien’s

supervised release after his initial 90-day detention.

8 U.S.C. § 1231(a)(3). The Department of Homeland

5

For example, the Court’s determination in Zadvydas, 533 U.S. at

697, 121 S. Ct. at 2502, that § 1231(a)(6) was ambiguous as to whether

the agency had discretion to indefinitely detain aliens does not support

the independent conclusion that § 1231(a)(6) is also ambiguous as to

whether the agency must afford those aliens individualized bond

hearings before an Immigration Judge when they have been detained for

six months. See Jennings, __ U.S. at __, 138 S. Ct. at 847–48 (explaining

that logic in the context of § 1226(a)); cf. Diouf II, 634 F.3d at 1086,

1091–92, 1092 n.13.

6

Diouf v. Mukasey (Diouf I), 542 F.3d 1222, 1234 (9th Cir. 2008);

see also Doan v. INS, 311 F.3d 1160, 1162 (9th Cir. 2002).

7

8 C.F.R. § 241.5(a)–(b).

8

8 U.S.C. § 1231(a)(3).

ALEMAN GONZALEZ V. BARR 65

Security 9 dutifully promulgated pertinent regulations, and

one of the release conditions it adopted was that an alien may

be required to post a bond in order to ensure his compliance

with the terms of his supervision order. 8 C.F.R. § 241.5(b);

see also Doan, 311 F.3d at 1162. But the agency’s proper

exercise of its discretion 10 to impose bond as a condition of

release pursuant to § 1231(a)(3), combined with our decision

that § 1231(a)(6) allows the agency to do so, 11 does not

produce the conclusion that § 1231(a)(6) plausibly requires,

as a matter of statutory construction, the bond hearings

sought by the Plaintiffs. See Morales-Izquierdo, 486 F.3d

at 493. 12 As I have previously noted, neither a bond nor a

hearing is mentioned in the text of § 1231(a)(6). 13 Because

our court has yet to identify a plausible interpretation of the

text of § 1231(a)(6) that would require a bond hearing, I

disagree with the majority’s conclusion that Diouf II applied

9

See City & County of San Francisco v. USCIS, 944 F.3d 773, 781

n.2 (9th Cir. 2019).

10

See Morales-Izquierdo v. Gonzales, 486 F.3d 484, 492 (9th Cir.

2007) (en banc).

11

Doan, 311 F.3d at 1161–62.

12

And because Diouf I, 542 F.3d at 1234, and Doan, 311 F.3d

at 1162, simply recognized the agency’s authority to impose bond as a

condition of release, I see no ineluctable reason that those cases would

have to be overturned if we overturned Diouf II, 634 F.3d at 1086, 1089.

13

I do not mean to suggest that the statute forbids the agency from

promulgating regulations that would allow bond hearings before an

Immigration Judge. See Encino Motorcars, LLC v. Navarro, __ U.S. __,

__, 136 S. Ct. 2117, 2124–25, 195 L. Ed. 2d 382 (2016); see also

Morales-Izquierdo, 486 F.3d at 493. But that does not make it any less

problematic for a court to “simply read a bond hearing requirement into

the statute.” See Rodriguez v. Robbins, 715 F.3d 1127, 1143 (9th Cir.

2013) (characterizing the Diouf line of cases).

66 ALEMAN GONZALEZ V. BARR

the canon of constitutional avoidance to choose between

competing plausible interpretations of § 1231(a)(6), as

required by Jennings. Rather, its reasoning is irreconcilable

with Jennings.

Diouf II’s holding was also premised on its implicit

assumption that the language of § 1226(a) and § 1231(a)(6)

was sufficiently similar that Casas-Castrillon’s analysis of

§ 1226(a) could be grafted onto § 1231(a)(6). Diouf II,

634 F.3d at 1086, 1089; see also, e.g., Murray, 934 F.3d

at 1106 & n.6. Diouf II’s reasoning in this regard has

likewise been fatally undermined because that aspect of

Casas-Castrillon is itself clearly irreconcilable with

Jennings.

In Casas-Castrillon, we held “that the government may

not detain a legal permanent resident . . . for a prolonged

period [pursuant to 8 U.S.C. § 1226(a)] without providing

him a neutral forum in which to contest the necessity of his

continued detention.” Casas-Castrillon, 535 F.3d at 949.

Our holding was premised on our conclusion “that prolonged

detention without adequate procedural protections would

raise serious constitutional concerns.” Id. at 950. But we

did not decide the constitutional issue in Casas-Castrillon.

Id. Rather, we pointed out that § 1226(a) “provides . . .

authority for the Attorney General to conduct a bond hearing

and release the alien on bond or detain him if necessary to

secure his presence at removal.” Id. at 951; see also 8 U.S.C.

§ 1226(a)(2) (an alien “may [be] release[d]” on bond or

parole). We then held that “[b]ecause the prolonged

detention of an alien without an individualized

determination of his dangerousness or flight risk would be

‘constitutionally doubtful,’ . . . § 1226(a) must be construed

as requiring the Attorney General to provide the alien with

such a hearing.” Casas-Castrillon, 535 F.3d at 951. But we

ALEMAN GONZALEZ V. BARR 67

identified no ambiguity in § 1226(a) regarding whether a

bond hearing was required. Id. at 950–51. Instead, we

essentially rewrote the statute to make it so. Id. That is

precisely the procedure rejected by the Supreme Court in

Jennings. See Jennings, __ U.S. at __, 138 S. Ct. at 843; see

also Clark, 543 U.S. at 378, 125 S. Ct. at 722–23; id. at 381,

125 S. Ct. at 724.

In Jennings, the Supreme Court rejected as implausible

our reading of § 1226(a) “to limit the permissible length of

an alien’s detention without a bond hearing.” Jennings, __

U.S. at __, 138 S. Ct. at 842. The Supreme Court held “that

there is no justification for any of the procedural

requirements that the Court of Appeals layered onto

§ 1226(a) without any arguable statutory foundation.” Id.

Nonetheless, the Supreme Court acknowledged that aliens

detained pursuant to § 1226(a) were entitled, by dint of

agency regulations, to “bond hearings at the outset of

detention.” Id. at __, 138 S. Ct. at 847. The Supreme Court

thus struck down the additional procedural devices we had

created, which went “well beyond the initial bond hearing

established by existing regulations—namely, periodic bond

hearings every six months in which the Attorney General

must prove by clear and convincing evidence that the alien’s

continued detention is necessary.” Id. at __, 138 S. Ct.

at 847–48. The scaffolding upon which we had erected

those excess procedures for § 1226(a) detainees was Casas-

Castrillon and its progeny. See Rodriguez v. Robbins,

804 F.3d 1060, 1084–85, 1086–89 (9th Cir. 2015) (“The

district court’s decision regarding the § 1226(a) subclass

was squarely controlled by our precedents,” most

prominently, Casas-Castrillon), rev’d, Jennings, __ U.S.

at __, 138 S. Ct. at 836. Because Jennings struck down all

procedural protections for § 1226(a) detainees beyond those

provided by regulation, Jennings dispelled the excess

68 ALEMAN GONZALEZ V. BARR

procedures conjured up by Casas-Castrillon, 535 F.3d

at 950–51. 14 Thus, Diouf II’s reasoning that § 1231(a)(6)

detainees were entitled to individualized bond hearings

simply because Casas-Castrillon had conjured those for

§ 1226(a) detainees is clearly irreconcilable with Jennings.

Diouf II contains no other reasoning supporting its

conclusion that an individualized bond hearing is required

for § 1231(a)(6) detainees. See Diouf II, 634 F.3d at 1086,

1089. In light of the analysis above, the majority contradicts

Jennings by relying on Diouf II. See Close, 894 F.3d

at 1073; cf. Nunez-Reyes v. Holder, 646 F.3d 684, 690 (9th

Cir. 2011) (en banc) (overruling one case likewise overrules

the holdings of those cases that followed its rule). In other

words, there is no basis for clinging to a mode of analysis

that the Court has plainly held is plainly wrong. Rather, we

should vacate the grant of the preliminary injunction.

Thus, I respectfully dissent.

14

The majority suggests that some of Casas-Castrillon survives

Jennings: that is, the majority reads Jennings to invalidate only the

requirement that a hearing be conducted after six months of detention,

which it sees as narrower than Casas-Castrillon’s holding, which

required an individualized bond hearing after an alien’s “prolonged

detention.” See Casas-Castrillon, 535 F.3d at 951. But I take the

Supreme Court at its word, and it told us in Jennings that we had erred

in providing § 1226(a) detainees with “procedural protections that go . . .

beyond [those] . . . established by existing regulations.” Jennings, __

U.S. at __, 138 S. Ct. at 847. Because the hearings prescribed in Casas-

Castrillon are procedural protections that are not “established by existing

regulations,” I disagree with the majority that Casas-Castrillon’s hearing

requirement survived Jennings.