FOR PUBLICATION 

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESTEBAN ALEMAN GONZALEZ;

EDUARDO GUTIERREZ SANCHEZ,

Plaintiffs-Appellees,

v.

WILLIAM P. BARR, Attorney General; 

CHAD WOLF, Acting Secretary, 

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 

No. 18-16465

D.C. No.

3:18-cv-01869-

JSC

OPINION
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 PlaintiffsAppellees.
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 Government1) 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 threejudge 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 CasasCastrillon, 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 timelimited” 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 constitutionalavoidance 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 witnessprotection 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 GuerreroSanchez 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 sixmonth 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 interrelated 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 Casas16 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 CasasCastrillon’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 withholdingonly 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 withholdingonly 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 GuerreroSanchez, 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 GuerreroSanchez. 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 Zadvydas3] 

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 precedent6 and agency regulations7

had recognized the requirement of a bond as a reasonable 

condition8 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

Security9 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 discretion10 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 CasasCastrillon 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 CasasCastrillon are procedural protections that are not “established by existing 

regulations,” I disagree with the majority that Casas-Castrillon’s hearing 

requirement survived Jennings.