11 F.4th 1
1st Cir.2021Background
- Petitioner John Doe, a Salvadoran national, was detained under 8 U.S.C. § 1226(a) pending removal and denied bond by an IJ who, relying on Matter of Guerra, placed the burden on Doe to prove he was neither a danger nor a flight risk.
- Doe petitioned for habeas corpus in the District of Massachusetts, arguing the Fifth Amendment Due Process Clause requires the government to bear the burden at bond hearings; the district court agreed and found any misallocation prejudicial.
- The district court ordered a new bond hearing at which the government would bear the burden of proving dangerousness or flight risk and required the IJ to consider alternative conditions (e.g., GPS monitoring).
- The government appealed only the allocation-of-burden ruling; it did not challenge the district court’s finding of prejudice or the alternatives requirement on appeal.
- The First Circuit, relying on its decision in Hernandez-Lara v. Lyons, affirmed: to continue detention under § 1226(a) the government must prove by clear and convincing evidence that the detainee is dangerous or prove by a preponderance of the evidence that the detainee is a flight risk.
- A dissent (Judge Lynch) urged en banc review, argued the panel’s approach conflicts with Supreme Court precedent, and advocated resolving the dispute under narrower statutory/APA grounds rather than broad constitutional holdings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who bears the burden at a § 1226(a) bond hearing? | Government must bear the burden under Due Process. | IJ properly placed burden on detainee per Matter of Guerra. | Government must bear the burden; remand for new hearing. |
| Quantum of proof required to continue detention? | Government must prove dangerousness/flight risk (Doe relied on court guidance). | Opposed to changing IJ practice; did not contest prejudice finding. | Government must prove dangerousness by clear and convincing evidence or flight risk by a preponderance. |
| Must IJ consider alternatives (e.g., GPS) to continued detention? | District court ordered consideration of alternatives. | Government did not contest; Doe made no argument on appeal. | Challenge to that portion waived; court expresses no view. |
Key Cases Cited
- United States v. Delgado-Marrero, 744 F.3d 167 (1st Cir. 2014) (waiver doctrine cited for unchallenged portions of order)
- Jean v. Nelson, 472 U.S. 846 (1985) (constitutional-avoidance principle; prefer narrower statutory remedies)
- Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936) (Brandeis concurrence articulating constitutional-avoidance rules)
- Borbot v. Warden Hudson Cty. Corr. Facility, 906 F.3d 274 (3d Cir. 2018) (cited by dissent to show circuit conflict on burden allocation)
- Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16 (1st Cir. 2006) (set of authorities referenced in dissent on when en banc review is appropriate)