384 F. Supp. 3d 140
D.D.C.2019Background
- Petitioner Cristian Diaz Ortiz, an undocumented Salvadoran with no criminal record, has been detained by ICE since August 20, 2018 under 8 U.S.C. § 1226(a) pending removal proceedings.
- At his first bond/redetermination hearing the IJ placed the burden on Diaz Ortiz to prove entitlement to release; this Court (following Pensamiento) held that violated due process and ordered a new hearing placing the burden on the Government to show dangerousness or flight risk (January 29 order).
- The Government appealed the January 29 order. At Diaz Ortiz’s second IJ hearing the IJ again denied bond; Diaz Ortiz moved in district court to enforce the January 29 order, alleging the IJ again failed to place the burden on the Government.
- The Government’s principal evidence of dangerousness was a multi‑agency gang report (opining MS‑13 affiliation) and his possession of a padlock and chain, a weapon associated with MS‑13.
- The district court reviewed the IJ’s written decision, found the IJ explicitly referenced the January 29 order and concluded the Government met its burden by a preponderance of the evidence, and denied Diaz Ortiz’s motion to enforce.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the IJ at the second hearing complied with the January 29 order by placing the burden on the Government | Diaz Ortiz: IJ again placed burden on respondent; hearing constitutionally inadequate | Gov: IJ referenced the January 29 order and allocated burden to Government; denial supported by Government evidence | Held: IJ did place the burden on Government; motion to enforce denied |
| Whether Government’s gang evidence sufficed to prove dangerousness | Diaz Ortiz: gang database entries rely on "reasonable suspicion" and hearsay, undermining probative value | Gov: multi‑agency opinions plus possession of a common MS‑13 weapon suffice | Held: Evidence was sufficient for IJ to find dangerousness by preponderance of the evidence |
| Proper standard of proof for dangerousness (preponderance vs clear and convincing) | Diaz Ortiz: due process requires clear and convincing proof | Gov: lower standard adequate; appeal pending on January 29 order leaves issue unsettled | Held: Court did not decide (jurisdictional limits because January 29 order is on appeal) but noted other courts have required clear and convincing in related contexts |
| Whether the district court can review IJ’s discretionary weighing of the evidence | Diaz Ortiz: discretionary decision was arbitrary and violated due process | Gov: discretionary detention decisions under §1226(a) are not reviewable; IJ’s discretion governs | Held: Court lacks jurisdiction to second‑guess IJ’s discretionary weighing under 8 U.S.C. §1226(e); decision not arbitrary under due process |
Key Cases Cited
- Pensamiento v. McDonald, 315 F. Supp. 3d 684 (D. Mass. 2018) (district ruling reallocating burden of proof in §1226(a) bond hearings)
- Hechavarria v. Whitaker, 358 F. Supp. 3d 227 (W.D.N.Y. 2019) (standard for showing noncompliance with a habeas‑condition order)
- Herrera v. Collins, 506 U.S. 390 (1993) (conditional writs and district court authority to grant habeas relief)
- Leonardo v. Crawford, 646 F.3d 1157 (9th Cir. 2011) (district court may review compliance with its conditional habeas orders)
- In re Padilla, 222 F.3d 1184 (9th Cir. 2000) (trial court retains jurisdiction to enforce judgment absent a stay)
- Demore v. Kim, 538 U.S. 510 (2003) (limits on judicial review of discretionary detention decisions)
- Guerrero‑Sanchez v. Warden York Cty. Prison, 905 F.3d 208 (3d Cir. 2018) (discussing clear and convincing standard for certain immigration detentions)