315 F. Supp. 3d 684
D.D.C.2018Background
- Samuel Pensamiento, a Guatemalan national married to a U.S. citizen, was detained by ICE at a Massachusetts courthouse after a misdemeanor pretrial hearing and has pending removal proceedings under § 1226(a).
- He had been released on bond in 2013 during asylum proceedings; his I-130 was approved and removal proceedings were administratively closed in 2017 but later re-calendared after the ICE arrest.
- He faced two misdemeanor counts from a December 2017 car-accident arrest; one count was later dismissed and he pleaded guilty to a property-damage misdemeanor and fined $200.
- An Immigration Judge (IJ) denied bond at two custody redetermination hearings, applying BIA precedent (Guerra/Adeniji) that places the burden on the alien to prove he is not dangerous or a flight risk, and at the first hearing required proof by clear and convincing evidence.
- Pensamiento filed a § 2241 habeas petition challenging the constitutionality of the immigration bond procedure and seeking release or a hearing requiring the government to prove by clear and convincing evidence that detention is necessary.
- The district court granted temporary relief for birth attendance, denied the government's motion to dismiss, and granted the habeas petition ordering a new custody hearing at which the government must bear the burden of proving necessity of detention.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court has jurisdiction to hear habeas challenge to bond procedure | Pensamiento: district courts retain habeas jurisdiction over detention and bail claims | Respondents: REAL ID/§1252 and §1226(e) bar review of custody decisions | Court: Habeas jurisdiction exists for constitutional challenges to detention scheme; §1226(e) does not bar such claims |
| Whether exhaustion of administrative remedies required | Pensamiento: exhaustion not required; IJ was presented the burden argument and BIA appeal would be futile | Respondents: argued lack of exhaustion (briefly) | Court: No statutory exhaustion required; exhaustion waived/futile; court proceeds |
| Whether Due Process requires government to bear burden in §1226(a) custody hearings | Pensamiento: Due Process requires government to prove by clear and convincing evidence that detention is necessary (dangerousness/flight risk) | Respondents: BIA precedent placing burden on alien is reasonable and entitled to deference; Demore/Zadvydas support detention framework | Court: Constitution requires government bear burden of proof in §1226(a) redeterminations; alien cannot be required to prove absence of risk; court orders new hearing with government burden |
| Whether the standard must be clear and convincing | Pensamiento: clear and convincing is required given liberty interest and potential prolonged detention | Respondents: BIA deference and statutory scheme support current standards | Court: Government must bear burden, but court declines to definitively adopt clear-and-convincing as constitutional minimum; remands for new hearing with government burden |
Key Cases Cited
- Aguilar v. U.S. Immigration & Customs Enforcement Div. of Dep't of Homeland Sec., 510 F.3d 1 (1st Cir.) (district courts retain habeas jurisdiction over immigration detention)
- Demore v. Kim, 538 U.S. 510 (2003) (upholding mandatory detention of certain criminal aliens; government need not use least burdensome means)
- Zadvydas v. Davis, 533 U.S. 678 (2001) (Due Process protects persons and places burden on government to justify continued post-removal detention once alien makes threshold showing)
- Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (§1226(a) does not itself require periodic bond hearings or a clear-and-convincing government burden)
- Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011) (Due Process requires government bear burden by clear and convincing evidence in §1226(a) hearings)
- Foucha v. Louisiana, 504 U.S. 71 (1992) (striking statute that placed burden on detainee in continued civil confinement challenges)
- Addington v. Texas, 441 U.S. 418 (1979) (standard of proof considerations in civil commitment due process analysis)
- In re Guerra, 24 I. & N. Dec. 37 (BIA) (agency rule placing burden on alien to show entitlement to bond)