FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAVIER MARTINEZ,

Petitioner-Appellant,

v.

LOWELL CLARK, Warden, Northwest 

Detention Center; NATHALIE ASHER, 

Tacoma Field Office Director, 

United States Immigration and 

Customs Enforcement; ALEJANDRO 

MAYORKAS, Secretary, Department 

of Homeland Security; MERRICK B.

GARLAND, Attorney General,

Respondents-Appellees.

No. 21-35023

D.C. No.

2:20-cv-00780-

TSZ

OPINION

Appeal from the United States District Court

for the Western District of Washington

Thomas S. Zilly, District Judge, Presiding

Argued and Submitted March 7, 2022

Seattle, Washington

Filed June 15, 2022

Before: Jacqueline H. Nguyen, Eric D. Miller, and

Patrick J. Bumatay, Circuit Judges.

Opinion by Judge Bumatay
2 MARTINEZ V. CLARK

SUMMARY*

Immigration/Habeas/Detention

Affirming in part and vacating in part the district court’s 

denial of Javier Martinez’s habeas petition challenging his 

immigration detention, and remanding, the panel held that: 

1) federal courts lack jurisdiction to review the discretionary 

determination of whether a particular noncitizen poses a 

danger to the community such that he is not entitled to bond; 

and 2) the district court correctly denied Martinez’s claims 

that the Board of Immigration Appeals erred or violated due 

process in denying bond.

Martinez was detained under 8 U.S.C. § 1226(c), which 

provides for mandatory detention of noncitizens with certain 

criminal convictions throughout their removal proceedings. 

After Martinez filed a habeas petition, the district court 

ordered that he receive a bond hearing, reasoning that his 

prolonged mandatory detention violated due process. An IJ 

denied bond, and the BIA affirmed, concluding that the 

government sustained its burden to show that Martinez was 

a danger to the community by clear and convincing 

evidence. Martinez then brought the instant habeas petition, 

seeking release. The district court asserted jurisdiction over 

Martinez’s claims, but denied habeas relief. 

The panel held that the district court lacked jurisdiction 

to review the determination that Martinez posed a danger to 

the community, concluding that dangerousness is a 

discretionary determination covered by the judicial review 

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

has been prepared by court staff for the convenience of the reader.
MARTINEZ V. CLARK 3

bar of 8 U.S.C. § 1226(e). That section bars federal courts 

from reviewing “discretionary judgment[s]” regarding the 

detention under § 1226. In concluding that the 

dangerousness determination is discretionary, the panel 

observed that the only guidance as to what it means to be a 

“danger to the community” is an agency-created multifactorial analysis with no clear, uniform standard for what 

crosses the line into dangerousness. Thus, the panel 

explained it was left without standards sufficient to permit 

meaningful judicial review. Moreover, the panel explained 

that dangerousness is a fact-intensive inquiry that requires 

the equities be weighed, and like the other determinations 

this court has found to be discretionary (such as whether a 

crime is “violent or dangerous,” or whether hardship is 

“exceptional and extremely unusual”), is a subjective 

question that depends on the identity and the value judgment 

of the person or entity examining the issue.

The panel further explained that the district court erred 

in relying on Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 

2017), to assert jurisdiction. The panel explained that 

Hernandez’s class action challenge to the “policy” and 

“process” over bond hearings is a far cry from Martinez’s 

challenge to the individualized finding that he is 

“dangerous.” 

Martinez contended that the facts of his case are settled 

and, as in Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 

(2020), courts can review the application of a legal standard 

to established facts as a “question of law” not covered by the 

bar of § 1226(e). The panel explained that the key point in 

Guerrero-Lasprilla is that courts are not precluded from 

reviewing the application of legal standards to settled facts, 

but here there is no legal standard that, if met, requires a 

certain outcome. The panel also rejected Martinez’s attempt 
4 MARTINEZ V. CLARK

to reframe the question as an evaluation of whether the 

undisputed facts satisfy the constitutionally compelled 

evidentiary standard for dangerousness, explaining that it 

would not allow Martinez to circumvent § 1226(e)’s 

jurisdictional bar by cloaking an abuse of discretion 

argument in constitutional garb. Thus, the panel vacated the 

district court’s judgment as to dangerousness and remanded 

with instructions to dismiss. 

As to Martinez’s remaining claims, the panel concluded 

that the district court had jurisdiction to review them as 

constitutional claims or questions of law not covered by 

§1226(e), but agreed with the district court that they must be 

denied. First, Martinez contended that the BIA failed to 

apply the correct burden of proof and review all the evidence 

in the record in assessing dangerousness. The panel 

explained that there were no red flags to suggest that the BIA 

failed to consider all the evidence; rather, the BIA correctly 

noted the government’s burden and reviewed the record, but 

concluded that, under the totality of the evidence, he was a 

danger to the community. Second, Martinez argued that the 

BIA had to consider alternatives to detention, such as 

conditional parole, before denying bond. The panel 

disagreed, explaining that the applicable precedent does not 

suggest that due process mandates that immigration courts 

consider release conditions or conditional parole before 

deciding that an alien is a danger to the community.
MARTINEZ V. CLARK 5

COUNSEL

Robert Pauw (argued), Gibbs Houston Pauw, Seattle, 

Washington, for Petitioner-Appellant.

Dana M. Camilleri (argued), Trial Attorney; Anthony P. 

Nicastro, Assistant Director; Brian M. Boynton, Acting 

Assistant Attorney General; Office of Immigration 

Litigation, Civil Division, United States Department of 

Justice, Washington, D.C.; for Respondents-Appellees.

OPINION

BUMATAY, Circuit Judge:

Congress has determined that certain categories of aliens 

are subject to mandatory detention during their removal 

proceedings. See 8 U.S.C. § 1226(c). The most common 

reason for a noncitizen to be placed in mandatory detention 

is a criminal history. See Nielsen v. Preap, 139 S. Ct. 954, 

960 (2019) (plurality opinion). So aliens with certain 

criminal convictions must remain in the government’s 

custody without bond throughout their removal proceedings.

Despite this statutory provision, district courts 

throughout this circuit have ordered immigration courts to 

conduct bond hearings for noncitizens held for prolonged 

periods under § 1226(c). The district court directives flow 

not from statutory text, but from due process. According to 

one such court order, the “prolonged mandatory detention 

pending removal proceedings, without a bond hearing, 

will—at some point—violate the right to due process.” 

Martinez v. Clark, No. 18-CV-01669-RAJ, 2019 WL 

5962685, at *1 (W.D. Wash. Nov. 13, 2019) (simplified). 
6 MARTINEZ V. CLARK

Whether due process requires a bond hearing for aliens 

detained under § 1226(c) is not before us today. And we 

take no position on that question.

What is before us today is the scope of federal court 

review of those bond determinations. In this case, the district 

court ordered that Javier Martinez—a twice-convicted drug 

trafficker detained under § 1226(c)—receive a bond hearing 

to determine whether he was a danger to the community or a 

flight risk. A hearing was held, and an immigration judge 

found that clear and convincing evidence showed that he was 

such a danger. The Board of Immigration Appeals (“BIA”) 

affirmed, and Martinez remained detained.

Martinez then appealed to federal district court to 

overturn his detention. Martinez raised three claims: 

(1) clear and convincing evidence did not show he is a 

danger to the community; (2) the BIA applied the incorrect 

burden of proof at his hearing; and (3) the BIA failed to 

consider alternatives to detention, such as conditional parole. 

The district court asserted jurisdiction over all three claims 

and denied habeas relief. That decision was not entirely 

appropriate.

Congress has barred courts from reviewing 

“discretionary judgment[s]” regarding the detention and 

release of aliens in removal proceedings. 8 U.S.C.

§ 1226(e). Federal courts may only review related 

“constitutional claims or questions of law.” Singh v. Holder, 

638 F.3d 1196, 1202 (9th Cir. 2011). We hold that an 

immigration court’s determination that a noncitizen is a 

danger to the community is a “discretionary judgment” not 

subject to review. We thus vacate the district court’s 

judgment regarding Martinez’s first claim and remand with 

instructions to dismiss for lack of jurisdiction.
MARTINEZ V. CLARK 7

The district court did, however, have jurisdiction to 

review Martinez’s last two claims since they involve 

questions of law or constitutional questions. Because they 

were correctly denied, we affirm.

I.

Javier Martinez, a native of Costa Rica and citizen of 

Nicaragua, entered the United States in 1987 as a conditional

resident. Three years later, he became a lawful permanent 

resident of the United States. In 2000, he was convicted of 

conspiring to distribute cocaine under 21 U.S.C. §§ 841, 

846, and sentenced to 20 months in prison. The next year, 

after his release from prison, the Department of Homeland 

Security (“DHS”) commenced removal proceedings against 

Martinez. An immigration judge later granted him 

withholding of removal.

Twelve years after his release from prison, in 2013, 

Martinez was once again arrested for trafficking cocaine 

under 21 U.S.C. §§ 841, 846. After his arrest, a federal 

magistrate judge released Martinez on his own recognizance. 

About five months later, Martinez pleaded guilty to the drug 

charge. He was released for the three months before 

sentencing. At the sentencing hearing, the district court 

noted that it was “impressed” with Martinez’s ability to 

control himself and to “avoid the pitfalls” while he was “out 

on bond.” The district court observed that it would not have 

released Martinez (as the magistrate judge did), but that 

Martinez did well with the opportunity. Martinez remained 

drug-free and complied with all the conditions of his release. 

Based on his efforts at rehabilitation, the district court 

sentenced Martinez to 60 months in prison. The district 

court also allowed Martinez to self-report to prison, and he 

did so a month later. While in prison, Martinez earned his 

GED, took vocational classes, and attended Bible studies. 
8 MARTINEZ V. CLARK

He also participated in a drug-treatment program and

received counseling for his drug addiction.

In early 2018, DHS reopened his removal proceedings 

based on his 2013 conviction. After his release from prison 

in April 2018, Martinez was taken directly into DHS custody 

and held without bond. After about six months, Martinez 

received a bond hearing, but the presiding immigration judge 

determined that he did not have jurisdiction to release 

Martinez because he was subject to mandatory detention 

under 8 U.S.C. § 1226(c).

In November 2018, Martinez then filed a federal habeas 

petition seeking immediate release or, in the alternative, an 

individualized bond hearing before an immigration judge. 

The district court ordered that Martinez receive a bond 

hearing. Martinez, 2019 WL 5962685, at *1. The district 

court reasoned that Martinez’s prolonged mandatory 

detention under § 1226(c) violated due process. Id. To 

comply with due process, the district court ordered “the 

government to show by clear and convincing evidence that 

[Martinez] presents a flight risk or a danger to the 

community at the time of the bond hearing.” Id.

In November 2019, an immigration judge held a bond 

hearing for Martinez and denied him bond. The immigration 

judge ruled that the government had met its burden of 

showing by clear and convincing evidence that Martinez was 

a danger to the community and a flight risk. In making the 

dangerousness determination, the immigration judge 

evaluated Martinez’s mitigating evidence, such as his 

successful release on bond pre-incarceration, the district 

court’s statements during sentencing, his efforts at 

rehabilitation, his family ties, and his strong community 

support. Still, the immigration judge found Martinez’s two 

convictions for drug trafficking to be dispositive. The 
MARTINEZ V. CLARK 9

immigration judge also determined that conditional parole 

was not appropriate for Martinez.

On appeal, the BIA ruled that Martinez was ineligible for 

release on bond based on the “totality of the evidence.” The 

BIA agreed with the immigration judge that the government 

sustained its burden to show that Martinez was a danger to 

the community by clear and convincing evidence. In doing 

so, the BIA emphasized that it had “long acknowledged the 

dangers associated with the sale and distribution of drugs” 

and found that Martinez’s repeated drug-trafficking 

convictions provided “strong evidence” that he was 

dangerous. The BIA also acknowledged Martinez’s 

rehabilitation efforts, but it found that his good behavior for 

“the approximately 7 years he has been detained in either 

prison or DHS custody does not indicate that he will not 

revert to his old habits of drug use and trafficking upon his 

release.” The BIA did not reach the immigration judge’s 

alternative conclusion that Martinez posed a flight risk.

Martinez then brought the instant federal habeas petition 

under 28 U.S.C. § 2241, seeking release from DHS 

detention. As relevant here, Martinez asserted that the BIA 

erred by failing to consider releasing him on conditional 

parole and by concluding that the government met its burden 

to present clear and convincing evidence of his 

dangerousness.

As to the threshold issue of jurisdiction, a magistrate 

judge held that the federal court had jurisdiction over 

Martinez’s claims. First, the magistrate judge ruled that 

Martinez’s conditional parole claim was a question of law 

and did not challenge any discretionary determination. Next, 

the magistrate judge considered as a “colorable due process 

argument” Martinez’s claim that the government failed to 

meet its evidentiary burden in denying bond.
10 MARTINEZ V. CLARK

After asserting jurisdiction, the magistrate judge 

recommended that the district court deny the habeas petition. 

On the conditional parole claim, the magistrate judge 

determined that the Ninth Circuit does not require 

immigration courts to consider conditions of release in 

assessing whether an alien could be released on bond. On 

the dangerousness claim, the magistrate judge applied de 

novo review and held that the government satisfied its 

burden of showing by clear and convincing evidence that 

Martinez was a danger to the community. The district court 

adopted the magistrate judge’s report and recommendations.

Martinez now appeals. We have jurisdiction over the 

appeal under 28 U.S.C. § 1291 and § 2253(a). We review 

the denial of a habeas petition de novo, Padilla-Ramirez v. 

Bible, 882 F.3d 826, 828 (9th Cir. 2017), any underlying 

legal questions de novo, and factual questions for clear error, 

Singh, 638 F.3d at 1202–03.

II. 

Before reaching the merits of this petition, we first 

reconsider the district court’s view that it had jurisdiction to 

review all of Martinez’s claims. “If a federal court lacked 

jurisdiction to decide an issue before it[,] we may exercise 

appellate jurisdiction to correct the error.” Shoner v. Carrier 

Corp., 30 F.4th 1144, 1150 (9th Cir. 2022) (simplified). We 

conduct that jurisdictional analysis on a claim-by-claim 

basis; jurisdiction over one claim does not automatically 

mean jurisdiction over all claims. See DaimlerChrysler 

Corp. v. Cuno, 547 U.S. 332, 352 (2006).

Martinez raises three questions for review in his habeas 

petition: (1) whether the BIA erred in determining that clear 

and convincing evidence showed that Martinez is a danger 

to the community; (2) whether the BIA applied the correct 
MARTINEZ V. CLARK 11

burden of proof; and (3) whether the BIA violated due 

process by failing to consider alternatives to detention. We 

review each in turn, but first provide context as to the 

jurisdictional framework for reviewing bond determinations.

A.

Congress has made it clear that certain immigration 

determinations are unreviewable by federal courts. 

Congress, for example, has made a “choice to provide 

reduced procedural protection” for “adjustment of status” 

decisions by “sharply circumscrib[ing] judicial review” of 

those decisions. Patel v. Garland, 142 S. Ct. 1614, 1619, 

1626 (2022) (referring to the jurisdictional bar under 

8 U.S.C. § 1252(a)(2)(B)). We are generally bound by 

Congress’s decision to strip our jurisdiction over a particular 

matter. See Patchak v. Zinke, 138 S. Ct. 897, 908 (2018) 

(plurality opinion) (“The constitutionality of jurisdictionstripping statutes . . . is well established.”).

In this case, we confront another jurisdictional wall: 

8 U.S.C. § 1226(e). With that section, Congress barred 

federal courts from reviewing “discretionary judgment[s]” 

regarding the detention of noncitizens under § 1226. Section 

1226(a) allows the government to arrest and detain an alien 

“pending a decision on whether the alien is to be removed 

from the United States.” In general, § 1226(a) gives the 

government the “discretion either to detain the alien or to 

release him on bond or parole.” Nielsen, 139 S. Ct. at 959. 

If an alien objects to the government’s bond determination, 

the alien may appeal that decision to an immigration judge. 

Hernandez v. Sessions, 872 F.3d 976, 982 (9th Cir. 2017) 

(citing 8 C.F.R. §§ 236.1(d), 1003.19(c)). At that stage, the 

alien must establish “that he or she does not present a danger 

to persons or property, is not a threat to the national security, 

and does not pose a risk of flight.” Id. (quoting In re Guerra, 
12 MARTINEZ V. CLARK

24 I. & N. Dec. 37, 38 (BIA 2006)). If the alien satisfies the 

burden, the immigration judge may release the alien on bond 

or subject to other conditions of release. Id. at 983 (citing 

8 C.F.R. §§ 236.1(d), 1003.19).

Section 1226(c), on the other hand, requires “mandatory 

detention” for certain categories of “criminal aliens.” 

Nielsen, 139 S. Ct. at 960 (citing 8 U.S.C. 

§ 1226(c)(1)(A)−(D)). A noncitizen like Martinez, who was 

convicted of two drug-trafficking offenses, qualifies for 

mandatory detention under § 1226(c). See 8 U.S.C. 

§§ 1226(c)(1)(A), 1182(a)(2). That person is then held in 

custody without a bond hearing. According to the Supreme 

Court, “Congress adopted this provision against a backdrop 

of wholesale failure by the INS to deal with increasing rates 

of criminal activity by aliens.” Demore v. Kim, 538 U.S. 

510, 518 (2003).

Section 1226 ends with a broad jurisdiction-stripping 

provision. It reads:

The Attorney General’s discretionary 

judgment regarding the application of 

[§ 1226] shall not be subject to review. No 

court may set aside any action or decision by 

the Attorney General under this section 

regarding the detention or release of any alien 

or the grant, revocation, or denial of bond or 

parole.

8 U.S.C. § 1226(e). Section 1226(e) means that an alien may 

not use the federal courts to “challeng[e] a ‘discretionary 

judgment’ by the Attorney General or a ‘decision’ that the 

Attorney General has made regarding his detention or 

release.” Jennings v. Rodriguez, 138 S. Ct. 830, 841 (2018) 

(plurality opinion) (simplified). So importantly, federal 
MARTINEZ V. CLARK 13

courts are barred from reviewing “discretionary decisions 

about the application of § 1226 to particular cases.” Nielsen,

139 S. Ct. at 962 (simplified); see also Singh, 638 F.3d 

at 1202 (holding that a federal court may not second-guess 

the “executive’s exercise of discretion” when it comes to the 

detention or release of noncitizens). And much like the 

jurisdictional bar in Patel, this provision “reflects Congress’ 

choice to provide reduced procedural protection” for 

discretionary judgments regarding the detention of aliens. 

See 142 S. Ct. at 1626.

But while the provision sweeps broadly, it’s also true that 

§ 1226(e) does not limit habeas jurisdiction over 

“constitutional claims or questions of law.” Id. That’s 

because § 1226(e) does not strip federal courts of their 

“traditional habeas jurisdiction, bar constitutional 

challenge[s],” or preclude attacks to the “statutory 

framework” permitting detention without bail. Id. As for 

“questions of law,” we may review the “application of a 

legal standard to undisputed or established facts.” GuerreroLasprilla v. Barr, 140 S. Ct. 1062, 1068 (2020). Thus, 

challenges to the “discretionary process”—rather than to the 

“discretionary judgment[s]” themselves—are reviewable in 

federal court. Singh, 638 F.3d at 1202.

So federal courts are without jurisdiction to review a 

“discretionary judgment regarding” the decision to hold an 

alien in custody. 8 U.S.C. § 1226(e). In this context, 

“judgment” means “any authoritative decision.” Patel, 

142 S. Ct. at 1621 (citing Webster’s Third New International 

Dictionary 1223 (1993) and 8 Oxford English Dictionary 

294 (2d ed. 1989)). The use of “regarding” in the provision 

has “a broadening effect, ensuring that the scope of a 

provision covers not only its subject but also matters relating 
14 MARTINEZ V. CLARK

to that subject.” Id., at 1622 (quoting Lamar, Archer & 

Cofrin, LLP v. Appling, 138 S. Ct. 1752, 1760 (2018)).

The touchstone of a “discretionary” determination is that 

it’s “subjective.” Romero-Torres v. Ashcroft, 327 F.3d 887, 

891 (9th Cir. 2003). We have said it “is almost necessarily 

a subjective question that depends on the identity and the 

value judgment of the person or entity examining the issue.” 

Mendez-Castro v. Mukasey, 552 F.3d 975, 980 (9th Cir. 

2009) (simplified). The determination is “value-laden” and 

“reflect[s] the decision maker’s beliefs in and assessment of 

worth and principle.” See Ramadan v. Gonzales, 479 F.3d 

646, 656 (9th Cir. 2007) (per curiam). A “prototypical” 

example is one that is “fact-intensive” and requires “equities 

[to] be weighed.” Torres-Valdivias v. Lynch, 786 F.3d 1147, 

1153 (9th Cir. 2015). In contrast, “determinations that 

require application of law to factual determinations are 

nondiscretionary.” Zerezghi v. U.S. Citizenship & Immigr. 

Servs., 955 F.3d 802, 808 (9th Cir. 2020) (emphasis added) 

(simplified); see also id. (holding that the government “must

approve an I-130 visa petition if the facts stated in the 

application are true and the beneficiary is an immediate 

relative”).

Under this rubric, we have held that several types of 

immigration determinations are “discretionary”:

• Whether a crime is “violent or dangerous.” 

Torres-Valdivias, 786 F.3d at 1152−53.

• Whether a crime is “particularly serious.” Arbid 

v. Holder, 700 F.3d 379, 383 (9th Cir. 2012) (per 

curiam).
MARTINEZ V. CLARK 15

• Whether an “exceptional and extremely unusual 

hardship” has been met. Mendez-Castro, 552 

F.3d at 980.

• Whether an “extreme hardship” has been met. 

Prapavat v. INS, 662 F.2d 561, 562 (9th Cir. 

1981) (per curiam).

• Whether an alien has “good moral character.” 

Ramadan, 479 F.3d at 656.

We have also held that matters of governmental grace, such 

as adjustment of status and cancellation of removal relief are 

discretionary judgments not subject to review. Bazua-Cota 

v. Gonzales, 466 F.3d 747, 748–49 (9th Cir. 2006) (per 

curiam); Romero-Torres, 327 F.3d at 890; accord Patel, 

142 S. Ct. at 1619.

With this background, we turn to Martinez’s claims. We 

apply § 1226(e)’s jurisdictional framework here. Although 

the district court ordered that Martinez receive a bond 

hearing to comply with due process, the discretionary 

judgments made at the hearing “relat[e]” to mandatory 

detention under § 1226(c). See Patel, 142 S. Ct. at 1626. 

We start our analysis with Martinez’s challenge to the 

dangerousness determination that kept him detained under 

that subsection.

B.

We hold that the determination of whether a particular 

noncitizen poses a danger to the community is a 

discretionary determination, which a federal court may not 

review. To begin, what does it mean to be a “danger to the 

community”? We are aware of no statutory or regulatory 

definition. Although we’ve approved of certain factors in 
16 MARTINEZ V. CLARK

considering the question, see Singh, 638 F.3d at 1206 & n.5, 

neither our court nor any other circuit court appears to have 

defined dangerousness. In Singh, we said that an 

immigration judge should look to the factors set out in

Matter of Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006). Id.1 

That agency opinion explains that immigration judges have 

“broad discretion” in considering and weighing those 

factors. Guerra, 24 I. & N. Dec. at 40. And while we’ve 

advised that an alien’s criminal history is the “most 

pertinent” factor, we have not said what combination of facts 

is “conclusive[]” to establish dangerousness. Singh, 

638 F.3d at 1206. So the only guidance then is an agencycreated multi-factorial analysis with no clear, uniform 

standard for what crosses the line into dangerousness. We 

thus are left without “standards sufficient to permit 

meaningful judicial review.” Husyev v. Mukasey, 528 F.3d 

1172, 1181 (9th Cir. 2008).

So like “dangerous crime,” “particularly serious crime,” 

“exceptional and extremely unusual hardship,” “extreme 

hardship,” and “good moral character,” we hold that “danger 

to the community” fits comfortably within the category of 

discretionary determinations. Dangerousness is a “factintensive” inquiry that requires the “equities [to] be 

1 The nine factors are: “(1) whether the alien has a fixed address in 

the United States; (2) the alien’s length of residence in the United States; 

(3) the alien’s family ties in the United States, and whether they may 

entitle the alien to reside permanently in the United States in the future; 

(4) the alien’s employment history; (5) the alien’s record of appearance 

in court; (6) the alien’s criminal record, including the extensiveness of 

criminal activity, the recency of such activity, and the seriousness of the 

offenses; (7) the alien’s history of immigration violations; (8) any 

attempts by the alien to flee prosecution or otherwise escape from 

authorities; and (9) the alien’s manner of entry to the United States.” 

Guerra, 24 I. & N. Dec., at 40.
MARTINEZ V. CLARK 17

weighed.” Torres-Valdivias, 786 F.3d at 1153. And like the 

rest of the lot, it is a “subjective question that depends on the 

identity and the value judgment of the person or entity 

examining the issue.” Mendez-Castro, 552 F.3d at 980 

(simplified). What one immigration judge may find 

indicative of a propensity for danger, another may see as 

progress toward redemption. This is exactly the type of 

discretionary judgment that § 1226(e) insulates from judicial 

review.

Take this case for example. Martinez is a twiceconvicted drug trafficker, but has shown some promise by 

succeeding on pretrial release and making significant 

progress toward rehabilitation. Reasonable minds can differ 

on whether clear and convincing evidence establishes that he 

is a danger to the community. The decision comes down to 

the decisionmaker’s “beliefs in and assessment of worth and 

principle.” Ramadan, 479 F.3d at 656. As the dangerousness 

determination is subjective and value-laden, it is a 

discretionary judgment that federal courts are precluded 

from reviewing.

In contrast, the district court asserted jurisdiction over 

the claim as a constitutional question. In the district court’s 

view, if Martinez was correct that the government failed to 

meet its evidentiary burden to prove dangerousness, then the 

BIA’s bond determination was “constitutionally flawed.” 

To support jurisdiction, the district court relied on 

Hernandez, 872 F.3d at 988. But that case does not support 

a finding of jurisdiction here. In Hernandez, we asserted 

jurisdiction over a class action brought by noncitizens 

challenging the government’s “policy” of ignoring their 

financial circumstances or non-monetary alternative 

conditions of release in setting bond amounts. Id. at 983. 

We held that the plaintiffs’ claims were cognizable on 
18 MARTINEZ V. CLARK

habeas review because they were not attacking “the amount

of their initial bonds,” but rather claiming that the 

“discretionary process itself was constitutionally flawed.” 

Id. at 988 (simplified). Hernandez’s challenge to the 

“policy” and “process” over bond hearings is a far cry from 

Martinez’s challenge to the individualized finding that he is 

“dangerous.” The district court thus erred in asserting 

jurisdiction over the dangerousness determination.

Martinez contends that the district court’s assertion of 

jurisdiction was nonetheless proper because the facts of his 

case are settled and courts can always review the 

“application of a legal standard to undisputed or established 

facts,” like in Guerrero-Lasprilla. He asks us to adopt a de 

novo standard to review whether clear and convincing 

evidence proves he is a danger to the community. But the 

key point in Guerrero-Lasprilla is that courts are not 

precluded from reviewing the application of legal standards

to settled facts. 140 S. Ct. at 1068. Here, we have no “legal 

standard” that, if met, requires a certain outcome. Cf.

Zerezghi, 955 F.3d at 808 (requiring the issuance of a I-130 

visa if certain facts are present). We only have malleable 

guidance that steers the immigration judge’s subjective 

assessment of the facts of a particular case. Federal courts 

thus lack jurisdiction to review the “application of such [a] 

standard to the facts of [this] case, be they disputed or 

otherwise.” Mendez-Castro, 552 F.3d at 981.

Martinez also tries to reframe the question as an 

evaluation of whether the undisputed facts satisfy the 

constitutionally compelled clear-and-convincing evidentiary 

standard for dangerousness. But under any framing, this is 

an attempt to reweigh the evidence supporting a purely 

discretionary determination. Indeed, Martinez’s argument 

boils down to the claim that due process forbids finding him 
MARTINEZ V. CLARK 19

dangerous, even considering his two drug-trafficking 

convictions, because he received pretrial release, engaged in 

rehabilitation efforts, and had community support. Thus, he 

argues, it’s impossible to find him dangerous by the 

constitutionally compelled clear-and-convincing-evidence 

standard. But due process does not command that evidence 

be weighed a certain way. Simply put, we will not allow 

Martinez to circumvent § 1226(e)’s jurisdictional bar by 

“cloaking an abuse of discretion argument in constitutional 

garb.” Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 

2001).

We thus hold that the district court lacked jurisdiction to 

review the BIA’s determination that Martinez posed a 

danger to the community, even if it ultimately agreed with 

the BIA’s conclusion. And because the district court lacked 

jurisdiction, we cannot evaluate the merits of Martinez’s 

claim.

C.

After jettisoning Martinez’s dangerousness claim, we are 

left to determine whether the district court had jurisdiction 

to review his two remaining claims: that the BIA erred by 

applying the wrong burden of proof and that due process 

required the BIA to consider alternatives to detention, such 

as conditional parole. Federal courts retain jurisdiction to 

review these claims because they are challenges to the legal 

standards or statutory framework used in bond 

determinations and are thus “constitutional claims or 

questions of law.” See Singh, 638 F.3d at 1202; id. at 

1202−03 (asserting jurisdiction over whether the 

immigration judge applied the correct burden of proof); 

Mendez-Castro, 552 F.3d at 979 (retaining jurisdiction over 

“whether an IJ failed to apply a controlling standard 

governing a discretionary determination”); Jennings, 138 S. 
20 MARTINEZ V. CLARK

Ct. at 841 (recognizing jurisdiction over challenges to the 

“statutory framework”).

III.

Turning now to the merits of Martinez’s remaining 

claims, we agree with the district court that they must be 

denied.

A.

Martinez contends that the BIA failed to apply the 

correct burden of proof and review all the evidence in the 

record in evaluating whether the government proved his 

dangerousness with clear and convincing evidence. He also 

alleges the BIA impermissibly shifted the burden of proof to 

him. We disagree.

Generally, in the absence of any red flags, we take the 

BIA at its word. For example, “[w]hen nothing in the record 

or the BIA’s decision indicates a failure to consider all the 

evidence,” we will rely on the BIA’s statement that it 

properly assessed the entire record. Cole v. Holder, 659 F.3d 

762, 771 (9th Cir. 2011). We do not require the BIA to 

“discuss each piece of evidence submitted.” Id. Similarly, 

we accept that the BIA “applied the correct legal standard” 

if the BIA “expressly cited and applied [the relevant 

caselaw] in rendering its decision.” See Mendez-Castro, 

552 F.3d at 980. But when there is an indication that 

something is amiss, like if the BIA “misstat[es] the record” 

or “fail[s] to mention highly probative or potentially 

dispositive evidence,” we do not credit its use of a “catchall 

phrase” to the contrary. Cole, 659 F.3d at 771−72.

There are no such red flags here. At the outset of its 

decision, the BIA properly noted that the government bore 
MARTINEZ V. CLARK 21

the burden to establish by clear and convincing evidence that 

Martinez is a danger to the community. It then reviewed the 

record, including Martinez’s drug trafficking convictions, 

and concluded there was “strong evidence” of his 

dangerousness. It credited Martinez’s significant 

rehabilitation efforts, such as keeping a clean record while 

on pretrial release and in prison. But it concluded, under 

“the totality of the evidence,” that the serious nature of 

Martinez’s convictions and his history of reoffending, even 

after several years of sobriety, rendered him a danger to the 

community. Contrary to Martinez’s claim, the BIA 

explicitly noted the evidence of his release on his own 

recognizance and his self-report to prison during his 2013 

criminal proceedings. Thus, we conclude that the BIA 

applied the correct burden of proof in this case.

B.

Martinez finally argues that the BIA had to consider 

alternatives to detention, such as conditional parole, before 

denying him bond. Martinez suggests that the BIA must 

import consideration of conditions of release from the 

criminal pretrial release context, such as GPS monitoring, 

drug testing, and counseling, to the immigration custody 

context. See 18 U.S.C. § 3142(c). In Martinez’s view, 

failing to do so violates due process or constitutes legal error. 

We reject Martinez’s argument.

Due process does not require immigration courts to 

consider conditional release when determining whether to 

continue to detain an alien under § 1226(c) as a danger to the 

community. In Singh, we addressed the due process 

requirements for bond hearings for aliens subject to 

prolonged detention. 638 F.3d at 1203−10. We held that 

due process requires immigration courts to make 

contemporaneous records of bond hearings, id. at 1200, and 
22 MARTINEZ V. CLARK

most significantly, that the government prove dangerousness 

or risk of flight by clear and convincing evidence, id. at 

1200, 1205. We then noted that these “greater procedural 

protections” are enough to safeguard an alien’s due process 

rights and “justify [the] denial of bond.” Id. at 1207.

Nowhere in Singh did we suggest that due process also 

mandates that immigration courts consider release 

conditions or conditional parole before deciding that an alien 

is a danger to the community. Singh offers the high-water 

mark of procedural protections required by due process, and 

we see no reason to extend those protections any further 

here.

Relying on Hernandez, Martinez argues that conditions 

of release must be considered to ensure that detention is 

reasonably related to the government’s interest in protecting 

the public. That case is inapposite. In Hernandez, the 

plaintiff noncitizens complained that neither their financial 

circumstances nor alternative release conditions were 

considered before their bond decisions were made, even 

though they were determined not to be dangerous or flight 

risks. 872 F.3d at 984−85, 990−91. While the government 

had a legitimate interest in protecting the public and ensuring 

the appearance of noncitizens in immigration proceedings, 

we held that detaining an indigent alien without 

consideration of financial circumstances and alternative 

release conditions was “unlikely to result” in a bond 

determination “reasonably related to the government’s 

legitimate interests.” Id. at 991. The analysis is different 

here. Martinez was found to be a danger to the community 

and so his detention is clearly “reasonably related” to the 

government’s interest in protecting the public. See id.
MARTINEZ V. CLARK 23

IV.

For these reasons, we vacate the district court’s judgment 

regarding Martinez’s challenge to the dangerousness 

determination and remand with instructions to dismiss; and 

we affirm the denial of the petition on all other claims.

AFFIRMED in part and VACATED and 

REMANDED in part with instructions to dismiss.