342 F. Supp. 3d 429
S.D. Ill.2018Background
- Petitioner Eunice Darko, a Ghanaian national, entered the U.S. in 2011, overstayed her visa, married a U.S. citizen, and filed for adjustment of status in Dec. 2017.
- DHS detained Darko on March 8, 2018 after a call-in; removal proceedings under INA § 240 commenced and she has been detained since March 18, 2018.
- Darko faced misdemeanor arrest and a Family Court neglect finding for corporal punishment; criminal charges were later dismissed.
- Darko received custody redetermination/bond hearings before an IJ (May 2018) who denied bond, applying BIA precedent that places the burden on the alien to show she is not a flight risk or danger.
- The BIA affirmed, stating the correct standard is preponderance of the evidence; Darko filed this habeas petition under 28 U.S.C. § 2241 challenging the constitutionality of placing the burden on the detainee.
- The district court ordered a new individualized bond hearing within seven days, holding the Government must prove detention justified by clear and convincing evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether due process requires the Government, not the detainee, to bear the burden at § 1226(a) custody/bond hearings | Darko: Due Process requires the Government to prove detention is justified; allocating burden to detainee violates liberty interests | Government: BIA precedent and § 1226(a) permit placing burden on alien; Jennings rejects reading § 1226(a) to require gov't burden | Court: Due Process requires Government to bear the burden of justifying detention at bond hearings under § 1226(a) |
| Standard of proof Government must meet to justify detention | Darko: Government must meet a heightened standard (clear and convincing) given liberty interest and risk of error | Government: Statute does not impose clear-and-convincing; BIA/agency practice uses preponderance and places burden on alien | Held: Government must prove continued detention by clear and convincing evidence |
| Remedy / timing when Government must provide constitutionally adequate hearing | Darko: Immediate individualized bond hearing with Government bearing burden | Government: Discretionary procedures, limited judicial review per § 1226(e) | Held: Government must produce an individualized bond hearing before an IJ within seven calendar days or release Darko |
Key Cases Cited
- Zadvydas v. Davis, 533 U.S. 678 (liberty from detention central to Due Process)
- Addington v. Texas, 441 U.S. 418 (clear and convincing standard for civil confinement)
- Foucha v. Louisiana, 504 U.S. 71 (state must bear burden to justify continued civil confinement)
- Kansas v. Hendricks, 521 U.S. 346 (placing burden on State in civil commitment context compatible with Due Process)
- Demore v. Kim, 538 U.S. 510 (recognizes detention during removal proceedings as sometimes constitutionally valid)
- Jennings v. Rodriguez, 138 S. Ct. 830 (statutory interpretation of § 1226(a); left constitutional question open)
- Singh v. Holder, 638 F.3d 1196 (9th Cir.) (due process requires government burden and clear-and-convincing standard in § 1226(a) custody hearings)
- Lora v. Shanahan, 804 F.3d 601 (2d Cir.) (required government to prove detention by clear and convincing evidence in § 1226(c) context)