Whether a dangerousness determination in immigration detention proceedings constitutes a reviewable mixed question of law and fact under the Due Process Clause and applicable precedent, or an unreviewable discretionary factual finding under 8 U.S.C. §1226(e)

No question identified. : No. In the Supreme Court of the Anited States JAVIER MARTINEZ, Petitioner, v. LOWELL CLARK, Warden, Northwest Detention Center, et al., Respondents. APPLICATION FOR AN EXTENSION OF TIME TO FILE A PETITION FOR A WRIT OF CERTIORARI To the Honorable Elena Kagan, Associate Justice of the United States Supreme Court and Circuit Justice for the United States Court of Appeals for the Ninth Circuit: Pursuant to Supreme Court Rule 13.5, petitioner Javier Martinez respectfully requests a 30-day extension of time, until September 27, 2023, within which to file a petition for a writ of certiorari. The United States Court of Appeals for the Ninth Circuit initially issued its opinion in this case on June 15, 2022. A petition for rehearing en banc was denied on May 30, 2023. The opinion of the court is reported at 36 F.4th 1219 and a copy is attached as Exhibit A. The decision denying en banc reconsideration is reported at 68 F.4th 1198 and a copy is attached as Exhibit B. This Court’s jurisdiction would be invoked under 28 U.S.C. §1254. Absent an extension, a petition for a writ of certiorari would be due August 28, 2023. This application is being filed more than 10 days in advance of that date, and no prior application has been made in this case. 1. The Ninth Circuit concluded over the dissent of eleven judges who disagreed with the decision not to reconsider the decision en banc that the jurisdictional limitation in 8 U.S.C. §1226(e), which applies to “the Attorney General’s discretionary judgment regarding the application of this section,” id., precludes review of a determination by the Board of Immigration Appeals that a noncitizen poses a danger to the community because the dangerousness determination is a “’fact-intensive’ inquiry” that is “subjective” with no “clear, uniform standard.” Martinez v. Clark, 36 F.4th 1219, 1229 (9th Cir. 2022), Exhibit A, p. 16. This case involves important questions concerning a district court’s jurisdiction to review its own habeas orders and the concerning a court’s jurisdiction to review mixed questions of law and fact in the immigration context. 2. In Jennings v. Rodriguez, 138 S.Ct. 830 (2018), this Court held that 8 U.S.C. §1226(c) mandates detention of noncitizens “until the end of [removal] proceedings” no matter how long such proceedings take, but left open the question of whether the Due Process Clause may require a bond hearing for a detainee held in mandatory detention for a prolonged period of time. In habeas proceedings in this case, the district court determined that the Petitioner, Mr. Martinez has been held in mandatory detention for a prolonged period of time and that his continued detention violates Due Process unless the government proves by clear and convincing evidence that he is a danger to the community. The immigration judge found, and the Board of Immigration Appeals affirmed, a finding of dangerousness based on Mr. Martinez’ prior criminal record. Mr. Martinez challenges the dangerousness finding. 3. In Guerrero-Lasprilla v. Barr, 140 S.Ct. 1062 (2020), this Court held that mixed questions of law and fact are reviewable as questions of law. In this case, there are no undisputed facts; the mixed question is whether those undisputed facts establish “danger to the community.” The Ninth Circuit held that the determination of “danger to the community” is not reviewable because dangerousness is a “fact-intensive’ inquiry” that is “subjective” with no “clear, uniform standard,” and therefore it is a completely discretionary determination. 36 F.4th at 1229, Exhibit A, pp. 16-17. 4. The Ninth Circuit’s characterization of the dangerousness finding as “subjective” and “discretionary” conflicts with longstanding precedents from the criminal bail context holding that dangerousness determinations are mixed questions of law and fact subject to independent review, and also conflicts with the Supreme Court’s decisions in Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062,