Javier Martinez v. LOWELL CLARK, Warden, Northwest Detention Center

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAVIER MARTINEZ,
Petitioner-Appellant,
v.
LOWELL CLARK, Warden,
Northwest Detention Center;
NATHALIE ASHER, Tacoma Field
Office Director, United States
Immigration and Customs
Enforcement; ALEJANDRO
MAYORKAS, Secretary, Department
of Homeland Security; MERRICK B.
GARLAND, Attorney General,
Respondents-Appellees.
No. 21-35023
D.C. No.
2:20-cv-00780-
TSZ
ORDER
Filed May 30, 2023
Before: Jacqueline H. Nguyen, Eric D. Miller, and Patrick
J. Bumatay, Circuit Judges.
Order;
Statement Respecting the Denial of Rehearing En Banc by
Judge Berzon

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SUMMARY*
Immigration/Habeas/Detention
The panel denied a petition for panel rehearing and
denied on behalf of the court a petition for rehearing en banc
in a case in which the panel held that federal courts lack
jurisdiction to review the discretionary determination that a
particular noncitizen in immigration detention poses a danger
to the community and so is not entitled to release on bond.
Respecting the denial of rehearing en banc, Judge
Berzon, joined by Chief Judge Murguia and Judges
Wardlaw, W. Fletcher, Paez, Christen, Hurwitz, Koh, Sung,
Mendoza, and Desai, disagreed with the Court’s refusal to
reconsider the panel opinion en banc.
Judge Berzon wrote that the panel’s characterization of
the dangerousness determination as discretionary conflicts
with longstanding precedents from the criminal bail context
holding that dangerousness determinations are mixed
questions of law and fact, subject to independent review.
Judge Berzon also wrote that the panel’s ruling is at odds
with Supreme Court guidance as to the sorts of
determinations that constitute mixed questions rather than
discretionary ones. Noting the critical importance of judicial
review when liberty is at stake, Judge Berzon wrote that the
panel’s ruling grants the government unconstrained
discretion to determine whether individuals in removal
proceedings should be detained based on dangerousness,
without judicial backstop.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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ORDER
The panel has voted to deny the petition for panel
rehearing. The full court was advised of the petition for
rehearing en banc. A judge requested a vote on whether to
rehear the matter en banc, and the matter failed to receive a
majority of the votes of the nonrecused active judges in favor
of en banc consideration. See Fed. R. App. P. 35(a).
The petition for panel rehearing and rehearing en banc is
DENIED. An opinion respecting the denial of rehearing en
banc, prepared by Judge Berzon, is filed concurrently with
this order.
BERZON, Circuit Judge, with whom MURGUIA, Chief
Judge, and WARDLAW, W. FLETCHER, PAEZ,
CHRISTEN, HURWITZ, KOH, SUNG, MENDOZA, and
DESAI, Circuit Judges, join, respecting the denial of
rehearing en banc:
I respectfully disagree with this Court’s refusal to
reconsider the panel opinion en banc.
“Freedom from bodily restraint has always been at the
core of the liberty protected by the Due Process Clause from
arbitrary governmental action.” Foucha v. Louisiana, 504
U.S. 71, 80 (1992). For that reason, the Supreme Court has
required “strong procedural protections”—including judicial
review—when upholding preventative detention based on
dangerousness. Zadvydas v. Davis, 533 U.S. 678, 691–92
(2001). Yet the panel in this case held that federal courts
lack jurisdiction to review the Board of Immigration
Appeals’ (“BIA”) determination that a noncitizen poses a

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danger to the community and so is not entitled to be released
from immigration detention on bond. See Martinez v. Clark,
36 F.4th 1219, 1224 (9th Cir. 2022).
The panel concluded that a jurisdictional limitation in 8
U.S.C. § 1226(e), which applies to “the Attorney General’s
discretionary judgment regarding the application of this
section,” id., precludes review of dangerousness. Martinez,
36 F.4th at 1224, 1228. The panel’s characterization of the
dangerousness determination as discretionary conflicts with
longstanding precedents from the criminal bail context
holding that dangerousness determinations are mixed
questions of law and fact, subject to independent review.
See, e.g., United States v. Howard, 793 F.3d 1113, 1113 (9th
Cir. 2015) (per curiam); United States v. Motamedi, 767 F.2d
1403, 1405–06 (9th Cir. 1985). And the panel’s ruling is at
odds with Supreme Court guidance as to the sorts of
determinations that constitute mixed questions rather than
discretionary ones. See, e.g., Guerrero-Lasprilla v. Barr,
140 S. Ct. 1062, 1069–70 (2020); U.S. Bank Nat’l Ass’n v.
Vill. at Lakeridge, LLC, 138 S. Ct. 960, 967–68 (2018).
For these reasons, this Court should have reconsidered
the panel opinion en banc.
I.
Under 8 U.S.C. § 1226, the government has authority to
detain noncitizens present in the United States during the
pendency of removal proceedings. For most noncitizens, the
“default rule”—set forth in subsection (a) of 1226—is that
the government has statutory authority to release them on
bond. See 8 U.S.C. § 1226(a)(2); Jennings v. Rodriguez, 138
S. Ct. 830, 846 (2018). In such bond hearings, release turns
on whether the noncitizen poses a danger to persons or
property, a threat to national security, or a flight risk. See

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MARTINEZ V. CLARK 5
Matter of Guerra, 24 I. & N. Dec. 37, 38 (BIA 2006) (citing
Matter of Adeniji, 22 I. & N. Dec. 1102 (BIA 1999)); 8
C.F.R. § 1236.1(c)(8); see also Singh v. Holder, 638 F.3d
1196, 1206 (9th Cir. 2011).
Section 1226(c) departs from the default rule by
specifying categories of noncitizens who, like Martinez, are
subject to mandatory detention because of criminal offenses
or terrorist activities. The government generally has no
statutory authority to release noncitizens covered by section
1226(c). See Jennings, 138 S. Ct. at 846-47. But here, the
district court held that because Martinez’s mandatory
detention was prolonged, “due process requires the
government to show by clear and convincing evidence that
the detainee presents a flight risk or a danger to the
community.” Martinez v. Clark, No. 18-CV-01669-RAJ,
2019 WL 5962685, at *1 (W.D. Wash. Nov. 13, 2019); see
also, e.g., German Santos v. Warden Pike Cnty. Corr.
Facility, 965 F.3d 203, 210–11 (3d Cir. 2020) (holding that
noncitizens subject to “unreasonably long” detention under
section 1226(c) have a due process right to a bond hearing);
Reid v. Donelan, 17 F.4th 1, 8 (1st Cir. 2021) (rejecting
across-the-board rule that all section 1226(c) detainees have
a constitutional right to a bond hearing once detained for
longer than six months, but recognizing “the possibility that
in most individual cases, detentions of six months (or of even
less time) might necessitate some type of hearing to see if
continued detention is reasonably necessary to serve the
statute’s purposes”). In Martinez’s bond proceedings, the IJ
and BIA denied him release, concluding based on his years-
old drug convictions that—notwithstanding his subsequent
good conduct—he is a danger to the community.
The panel in this case held that the district court lacked
jurisdiction to review the dangerousness determination.

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Martinez, 36 F.4th at 1228. In doing so, the panel invoked
another subsection of 1226, subsection (e), which imposes
limits on judicial review. Section 1226(e) provides:
The Attorney General’s discretionary
judgment regarding the application of this
section shall not be subject to review. No
court may set aside any action or decision by
the Attorney General under this section
regarding the detention or release of any alien
or the grant, revocation, or denial of bond or
parole.
Section 1226(e) “applies only to ‘discretionary’ decisions
about the ‘application’ of § 1226 to particular cases.”
Nielsen v. Preap, 139 S.Ct. 954, 962 (2019) (plurality
opinion). It “does not limit habeas jurisdiction over
constitutional claims or questions of law.” Singh, 638 F.3d
at 1202.
According to the panel, the dangerousness determination
is unreviewable under section 1226(e) because the inquiry
lacks any ascertainable legal standards, is “fact-intensive,”
“subjective[,] and value-laden,” and is therefore “purely
discretionary.” Martinez, 36 F.4th at 1228–30 (internal
quotations marks and citation omitted). This holding both
mischaracterizes the nature of dangerousness determinations
and misapplies the principles that govern which decisions
involve discretionary questions as opposed to legal
questions.

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MARTINEZ V. CLARK 7
II.
The nature of the dangerousness determination here may
seem like an esoteric jurisdictional question. But getting it
right is of enormous practical importance to a great many
individuals.
The panel assumed that a bond hearing required under
the Due Process Clause for noncitizens detained under
section 1226(c) is subject to the dangerousness standard
applicable to statutory bond hearings for noncitizens
detained under section 1226(a). See Martinez, 36 F.4th at
1226, 1228–29 (citing Singh, 638 F.3d at 1206, and Guerra,
24 I. & N. Dec. at 40). The panel’s jurisdictional ruling thus
precludes court review of dangerousness determinations for
all noncitizens detained pending their removal proceedings
under section 1226, not just noncitizens like Martinez who
are subject under the statute to mandatory detention because
of their criminal record.
Whether the government has unreviewable discretion to
determine if a noncitizen should be detained as a danger to
the community is a question of considerable constitutional
significance. “Freedom from imprisonment—from
government custody, detention, or other forms of physical
restraint—lies at the heart of the liberty that [the Due
Process] Clause protects.” Zadvydas, 533 U.S. at 690.
Under the panel’s ruling, the government could deem
anyone dangerous and detain them for years while their
removal case slowly works its way through the system; the
constitutional protection of liberty would be eviscerated.
But the Supreme Court has “upheld preventive detention
based on dangerousness only when limited to specially
dangerous individuals and subject to strong procedural
protections.” Id. at 691. Allowing noncitizens to be

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detained for prolonged periods where “the sole procedural
protections available . . . are found in administrative
proceedings” would raise an “obvious” constitutional
problem. Id. at 692. “[T]he Constitution may well preclude
granting an administrative body the unreviewable authority
to make determinations implicating fundamental rights.” Id.
(internal quotation marks and citation omitted).
Apart from the judicial review question, the panel’s
conclusion that dangerousness, and therefore release from
immigration detention, “is a ‘subjective question that
depends on the identity and the value judgment of the person
or entity examining the issue,’” Martinez, 36 F.4th at 1227
(citation omitted), is profoundly troubling from a
constitutional perspective. In upholding the Bail Reform
Act against a due process challenge, the Supreme Court
emphasized that “[t]he judicial officer is not given unbridled
discretion in making the detention determination.” United
States v. Salerno, 481 U.S. 739, 742, 751–52 (1987). The
panel here, in contrast, concluded that essentially the same
determination in the immigration context is wholly
subjective at the agency level, as well as dependent on the
identity and values of the decisionmaker—in other words, it
is subject to “unbridled discretion.” Were that true, there
would almost surely be a due process violation.
Conditioning release from detention entirely on the identity
of the decisionmaker or the decisionmaker’s personal tastes
or feelings offends the central purpose of the Due Process
Clause—protecting individuals from “arbitrary detention.”
Rodriguez v. Marin, 909 F.3d 252, 255, 257 (9th Cir. 2018)
(citation omitted); see also Foucha, 504 U.S. at 80.

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MARTINEZ V. CLARK 9
III.
We have recognized in the criminal bail context that the
determination of dangerousness is governed by ascertainable
standards, holding squarely that such a determination is a
mixed question of law and fact subject to independent
review. See, e.g., Howard, 793 F.3d at 1113; United States
v. Hir, 517 F.3d 1081, 1086–87 (9th Cir. 2008); Motamedi,
767 F.2d at 1405–06. The dangerousness determination in
the immigration context is directly analogous. Yet the panel
opinion does not mention the bail cases at all. That gap is
telling. Had the panel acknowledged the bail precedents, it
would have had to explain why the immigration bond
determination regarding dangerousness lacks judicially
cognizable legal standards and is therefore unreviewable,
Martinez, 36 F.4th at 1228–29, when courts in the criminal
bail context routinely review directly parallel determinations
independently and have done so for decades.
1.
The Bail Reform Act provides for release of a criminal
defendant pending trial “unless the judicial officer
determines that such release will not reasonably assure the
appearance of the person as required or will endanger the
safety of any other person or the community.” 18 U.S.C.
§ 3142(b). We have long held that in considering a pre-trial
release determination, the appellate court reviews “the
district court’s factual findings under a deferential, clearly
erroneous standard,” but
the conclusion based on those factual
findings presents a mixed question of fact and
law. The inquiry transcends the facts
presented and requires both the consideration

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of legal principles and the exercise of sound
judgment about the values which underly
those principles.
Motamedi, 767 F.2d at 1405, 1406; United States v.
Townsend, 897 F.2d 989, 994 (9th Cir. 1990). “In light of
the important constitutional dimensions involved” in
applications for release from detention, the appellate court
has “a nondelegable responsibility to make an independent
determination of the merits of the application.” Motamedi,
767 F.2d at 1405 (citation omitted). In particular, with
respect to “the danger that [the detainee] poses to the
community,” the court’s factual findings are reviewed for
clear error, but “[t]he conclusions based on such factual
findings . . . present a mixed question of fact and law.”
Howard, 793 F.3d at 1113; see also Hir, 517 F.3d at 1086.
The majority of circuits likewise independently review
bail release determinations while deferring to the district
court’s findings of subsidiary facts. See, e.g., United States
v. Portes, 786 F.2d 758, 763 (7th Cir. 1985) (holding that
determining whether a defendant “pose[s] a danger to the
community . . . is a judgmental function [as to which] we . .
. must engage in an ‘independent review’ of the case.”);
United States v. Delker, 757 F.2d 1390, 1399, 1400–01 (3d
Cir. 1985) (independently reviewing dangerousness
determination and stating that independent review is
“appropriate in light of the nature of the question to be
determined” because “[a] crucial liberty interest is at stake”);
United States v. Patriarca, 948 F.2d 789, 791 (1st Cir. 1991)
(independently reviewing denial of release based on
dangerousness); United States v. Stone, 608 F.3d 939, 945
(6th Cir. 2010) (reviewing denial of release based on
dangerousness after explaining that “[w]e review the district

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MARTINEZ V. CLARK 11
court’s factual findings for clear error, but we consider
mixed questions of law and fact—including the ultimate
question whether detention is warranted—de novo”); United
States v. Cisneros, 328 F.3d 610, 613, 618–19 (10th Cir.
2003) (similar); United States v. Quartermaine, 913 F.2d
910, 915 (11th Cir. 1990) (similar); United States v.
Sazenski, 806 F.2d 846, 847 (8th Cir. 1986) (similar).1
2.
The determination of whether a person will “endanger
the safety of any other person or the community” in the bail
context, 18 U.S.C. § 3142(b), is directly analogous to the
dangerousness determination in the immigration context.
The Supreme Court has long analogized immigration
detention to criminal detention and immigration bond to
criminal bail. See, e.g., Wong Wing v. United States, 163
U.S. 228, 233, 235 (1896); Zadvydas, 533 U.S. at 690–92
(citing Salerno, 481 U.S. at 747, 750–52). The substantive
standards for dangerousness in the two contexts are
essentially the same, and the pertinent factual and equitable
considerations are as well. In both settings, the
decisionmaker considers whether the historical facts give
rise to an inference that the applicant for release poses a
danger to the community. See, e.g., Motamedi, 767 F.2d at
1407; Singh, 638 F.3d at 1206. Comparing the case law in
both contexts demonstrates that the panel was wrong to
1 A few circuits characterize dangerousness for bail purposes as a finding
of fact subject to clear error review. See United States v. Manafort, 897
F.3d 340, 346 n.2 (D.C. Cir. 2018); United States v. English, 629 F.3d
311, 319 (2d Cir. 2011); United States v. Clark, 865 F.2d 1433, 1437
(4th Cir. 1989) (en banc). The Fifth Circuit applies a deferential standard
of review similar to abuse-of-discretion. See United States v. Moreno,
857 F.3d 723, 725–26 (5th Cir. 2017).

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conclude that there are no applicable “standards sufficient to
permit meaningful judicial review” of the dangerousness
determination for purposes of an immigration bond hearing.
See Martinez, 36 F.4th at 1229 (citation omitted).
“The decision whether to admit a defendant to bail . . .
must often turn on a judge’s prediction of the defendant’s
future conduct.” Jurek v. Texas, 428 U.S. 262, 275 (1976).
To assess whether it is safe to release an individual for bail
purposes, a district court takes into account multiple factors,
including “the nature and circumstances of the offense
charged,” the “history and characteristics of the person,”
including “past conduct” and “criminal history,” and “the
nature and seriousness of the danger” posed by the
individual. 18 U.S.C. § 3142(g). The district court typically
looks to objective sources concerning the individual’s
history of violence: “prior convictions, police reports, and
other investigatory documents” which “are, as a matter of
course, used to show past histories of violence.” Motamedi,
767 F.2d at 1407.
There is no question that there are legal standards
applicable to such review. The Supreme Court has
specifically so recognized, rejecting the notion that a
requirement that a decisionmaker assess the likelihood that
an individual “would constitute a continuing threat to
society” relies on a standard that is “so vague as to be
meaningless.” Jurek, 428 U.S. at 272, 274. “[T]here is
nothing inherently unattainable about a prediction of future
criminal conduct.” Salerno, 481 U.S. at 751 (quoting Schall
v. Martin, 467 U.S. 253, 278 (1984)).
Dangerousness determinations in the immigration
context are no less subject to meaningful legal standards
sufficient to permit judicial review. Consistent with the

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precedents from the bail context, we have explained that to
determine dangerousness in section 1226(a) bond hearings,
immigration judges must consider a person’s “criminal
record, including the extensiveness of criminal activity, the
recency of such activity, and the seriousness of the
offenses.” Singh, 638 F.3d at 1206 (quoting Guerra, 24 I. &
N. Dec. at 40). Singh further explained that “criminal history
alone will not always be sufficient to justify denial of bond
on the basis of dangerousness,” because “the recency and
severity of the offenses must [also] be considered.” Id. In
other words, just as in the bail context, the court considers
objective evidence concerning the immigration detainee’s
past conduct and criminal history to make a prediction about
likely future conduct. See Motamedi, 767 F.2d at 1407. As
in bail cases, the essential question is whether the evidence
“demonstrate[s] a propensity for future dangerousness.”
Singh, 638 F.3d at 1205.
The BIA’s analysis in Guerra reinforces that, as in the
bail context, sufficient legal standards do exist to permit
meaningful review here. Guerra explained that other past
conduct short of a criminal conviction is relevant to
determining dangerousness:
[A]lthough we recognize that the respondent
has not been convicted of the offenses
charged in the criminal complaint, we find
that unfavorable evidence of his conduct,
including evidence of criminal activity, is
pertinent to the Immigration Judge’s analysis
regarding . . . danger to the community.
24 I. & N. Dec. at 41. Thus, IJs “are not limited to
considering only criminal convictions in assessing whether

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an alien is a danger to the community. Any evidence in the
record that is probative and specific can be considered.” Id.
at 40–41. Applying these standards to the evidence in
Guerra, the BIA affirmed the IJ’s determination. Id. at 41.
In other words, the BIA itself reviewed the IJ’s
dangerousness decision by applying legal standards to the
objective facts. There is no reason why the same legal
standards are sufficiently enunciated for BIA review of IJ
decisions but not for court review of BIA decisions.
Nor is the BIA’s own characterization of the bond
determination as discretionary pertinent. Guerra reasoned
that that provision “gives the Attorney General the authority
to grant bond if he concludes, in the exercise of discretion,
that the alien’s release on bond is warranted.” 24 I. & N.
Dec. at 39. But the agency’s own characterization of the
nature of the decision – as opposed to its description of the
substance of the standard – is not controlling for purposes of
deciding a federal court’s jurisdiction. Otherwise “the
Executive would have a free hand to shelter its own
decisions from abuse-of-discretion appellate court review
simply by issuing a regulation declaring those decisions
‘discretionary.’” Kucana v. Holder, 558 U.S. 233, 252
(2010).
IV.
As the panel acknowledged, the jurisdictional
prohibition in section “1226(e) does not limit habeas
jurisdiction over ‘constitutional claims or questions of law.’”
Martinez, 36 F.4th at 1227; see also Singh, 638 F.3d at 1202.
In concluding that “danger to the community” is a purely
discretionary determination and so not a question of law, the
panel reasoned that the determination requires a “fact-
intensive,” “multi-factorial analysis with no clear, uniform

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MARTINEZ V. CLARK 15
standard for what crosses the line into dangerousness.”
Martinez, 36 F.4th at 1228–29. This test for identifying an
unreviewable discretionary judgment is fundamentally
flawed. Nearly every consideration the panel identified to
support the conclusion that the dangerousness determination
is discretionary is also applicable to legal questions
involving the application of law to fact, as the Supreme
Court and our court have recognized.
Recent Supreme Court precedent reflects that many legal
questions involving the application of law to fact, often
called “mixed questions,” are fact-intensive, subject to a
“broad . . . standard,” and require balancing multiple facts or
considerations. See U.S. Bank Nat’l Ass’n, 138 S. Ct. at
967–68; see also Guerrero-Lasprilla, 140 S. Ct. at 1069.
The Court has also recognized that the application of law to
fact entails consideration of competing values. See Miller v.
Fenton, 474 U.S. 104, 115–16 (1985). So, contrary to the
analysis of the panel in this case, the characteristics relied
upon by the panel cannot serve as litmus tests for
discretionary decisions.
U.S. Bank National Ass’n and Guerrero-Lasprilla refute
the panel’s conclusion that an inquiry must be discretionary
if it is fact-intensive. As Guerrero-Lasprilla recognized,
some mixed questions of law and fact “immerse[] courts in
case-specific factual issues.” 140 S. Ct. at 1069 (citation
omitted). The mixed question in U.S. Bank National Ass’n
was “fact-intensive” and required “[p]recious little” legal
work. 138 S. Ct. at 968. Some mixed questions may
“compel[] [courts] to marshal and weigh evidence, make
credibility judgments, and otherwise address . . .
‘multifarious, fleeting, special, narrow facts that utterly
resist generalization.’” Id. at 967 (quoting Pierce v.
Underwood, 487 U.S. 552, 561-562 (1988)). And mixed

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questions in the constitutional context may “primarily
involve[] plunging into a factual record.” Id. at 967 n.4.
Also, mixed questions of law and fact can entail
balancing multiple facts or weighing competing concerns.
U.S Bank National Ass’n explained that a mixed question
may require a court to “weigh evidence” and “balance [the
facts] one against another.” 138 S. Ct. at 967–68. Guerrero-
Lasprilla held that the fundamentally equitable question
whether an individual acted with due diligence for purposes
of equitable tolling is a question of law involving a mixed
question of law and fact. See 140 S. Ct. at 1068.
Mixed questions of law and fact may also entail
consideration of underlying values. For example, Miller
held that “the ultimate issue of ‘voluntariness’” of a
confession, for purposes of determining whether it was
obtained in violation of due process, “is a legal question
requiring independent federal determination,” 474 U.S. at
110, even though the voluntariness inquiry “subsum[es] . . .
a ‘complex of values,’” id. at 116 (citation omitted). See
also, e.g. United States v. McConney, 728 F.2d 1195, 1202,
1204–05 (9th Cir. 1984) (en banc) (recognizing that the
application of law to undisputed fact can require the court
“to exercise judgment about the values that animate legal
principles” and “balance competing legal interests”).
Nor does the absence of a legal standard that mandates a
“certain” outcome, Martinez, 36 F.4th at 1229, render an
issue discretionary. It is commonplace for legal standards to
“be given concrete meaning through a process of case-by-
case adjudication.” I.N.S. v. Cardoza-Fonseca, 480 U.S.
421, 448 (1987). Some mixed questions “require courts to
expound on the law, particularly by amplifying or

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MARTINEZ V. CLARK 17
elaborating on a broad legal standard.” U.S. Bank Nat’l
Ass’n, 138 S. Ct. at 967.
Legal inquiries involving the weighing of multiple
factors, without a standard that mandates a particular result,
are legion. Take, for example, the familiar question whether
a police officer’s use of force was excessive under the Fourth
Amendment—a question that is determined under the multi-
part balancing test of Graham v. Connor, 490 U.S. 386, 396–
97 (1989). See, e.g., Glenn v. Washington Cnty., 673 F.3d
864, 871 (9th Cir. 2011). There is no legal standard in
excessive force cases that mandates a particular outcome in
all instances. But the Supreme Court has held that once the
facts have been established, whether the totality of the
circumstances “warrant[s] deadly force . . . is a [] question
of law.” Scott v. Harris, 550 U.S. 372, 381 n.8 (2007)
(citation omitted); see also, e.g., United States v. Phelps, 955
F.2d 1258, 1265–66 (9th Cir. 1992) (explaining that the
process due under the three-part balancing test of Mathews
v. Eldridge, 424 U.S. 319, 335 (1976), is a “question of
law”); Moser v. Las Vegas Metro. Police Dep’t, 984 F.3d
900, 905 (9th Cir. 2021) (explaining that the multi-part First
Amendment “Pickering balancing test presents a question of
law”); Alpha Indus., Inc. v. Alpha Steel Tube & Shapes, Inc.,
616 F.2d 440, 443-44 (9th Cir. 1980) (explaining that under
the multi-factor AMF Inc. v. Sleekcraft Boats, 599 F.2d 341
(9th Cir. 1979), test for trademark confusion, the
“determination of likelihood of confusion based on th[e]
factors is a legal conclusion”). The bottom line is that multi-
factor standards that require weighing competing interests
are commonly understood to constitute legal standards, not
to constitute subjective, purely discretionary, unreviewable
decisionmaking.

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* * * *
Judicial review is of critical importance when liberty is
at stake. See Zadvydas, 533 U.S. at 692; Motamedi, 767 F.2d
at 1405. And that’s precisely what’s on the line here: the
dangerousness determination at issue can often make the
difference between years in detention awaiting a final
removal decision and liberty during that period. The
“prediction of future criminal conduct is an essential element
in many of the decisions rendered throughout our” system of
justice, and so it is a “task performed countless times each
day throughout the American system of criminal justice.”
Jurek, 428 U.S. at 275-76. In our Circuit as well as others,
that determination is subject to independent judicial review
for criminal bail purposes. See supra, Part III.1. Yet the
panel’s decision concludes that for immigration detainees,
there are no cognizable legal standards that would permit
judicial review of the analogous determination in bond
cases. In so doing, the panel grants the government
unconstrained discretion to determine whether individuals in
civil removal proceedings should be detained based on
dangerousness, without judicial backstop.
I seriously disagree with this Court’s decision to deny
rehearing en banc. Should the issue arise again once the case
law on the implications of U.S. Bank National Ass’n and
Guerrero-Lasprilla is better developed, I hope the issue will
be revisited.

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