Hernandez Lara v. LyonsHernandez Lara v. Lyons
Hernandez subsequently filed a petition for a writ of habeas corpus in the United States District Court for the District of New Hampshire, contending that the Due Process clause of the Fifth Amendment entitled her to a bond hearing at which the government, not Hernandez, must bear the burden of proving danger or flight risk by clear and convincing evidence. The district court agreed and ordered the IJ to conduct a second bond hearing at which the government bore the burden of proving by clear and convincing evidence that Hernandez was either a danger or a flight risk. That shift in the burden proved pivotal, as the IJ released Hernandez on bond following her second hearing, after ten months of detention. The government now asks us to reverse the judgment
I.
The parties do not dispute the relevant background facts. Hernandez was born in Usulutan, El Salvador, in 1986. Before coming to the United States in 2013, her life was marred by abusive domestic relations and gang violence. Hernandez‘s stepfather raped her when she was twelve years old and beat her mother throughout Hernandez‘s childhood. History repeated when Hernandez‘s stepfather‘s son raped Hernandez‘s then-eight-year-old daughter. Although Hernandez escaped her stepfather by living with her brother, she was unable to escape danger. Hernandez‘s brother was a member of Mara 18 (the 18th Street Gang), and after he was imprisoned for gang-related crimes, the gang began threatening Hernandez in an effort to force her to assume her brother‘s former gang responsibilities. Hernandez resisted those threats until late August 2013, when the gang told her aunts they intended to kill her and “throw [her] head in the river.”
Hernandez was taken into custody by an immigration officer on September 20, 2018, and detained pursuant to
The government‘s response provided an apt demonstration of how the burden of proof can affect immigration bond hearings. Government counsel produced a so-called “Red Notice” published by
An INTERPOL Red Notice is “a request to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action.” Red Notices, INTERPOL, https://www.interpol.int/en/How-we-work/Notices/Red-Notices (last visited August 18, 2021). In the United States, an INTERPOL Red Notice alone is not a sufficient basis to arrest, much less detain or extradite, the “subject” of the notice “because it does not meet the requirements for arrest under the 4th Amendment to the Constitution.” About INTERPOL Washington: Frequently Asked Questions, U.S. Dep‘t of Just., https://www.justice.gov/interpol-washington/frequently-asked-questions (last visited August 18, 2021).
Hernandez denied belonging to the organization. Her counsel explained that her brother had belonged to the gang and pointed out that the Red Notice failed to specify any criminal or dangerous act that Hernandez allegedly committed.
On April 16, 2019, Hernandez filed a petition for a writ of habeas corpus in the United States District Court for the District of New Hampshire. In her petition, Hernandez claimed that due process required the government to bear the burden of proving, by clear and convincing evidence, that she was either dangerous or a flight risk, and therefore that her initial bond hearing was constitutionally inadequate. Hernandez also claimed that because of her “prolonged detention” of over six months, due process required an additional bond hearing at which the government would bear the burden of proof. Hernandez sought as relief either her immediate release or a new bond hearing at which the government
On July 25, 2019, the district court granted Hernandez‘s habeas petition and ordered the IJ to conduct another bond hearing at which the government would “bear the burden of justifying Hernandez‘s detention by clear and convincing evidence.” Hernandez-Lara v. Immigr. & Customs Enf‘t, Acting Dir., No. 19-cv-394-LM, 2019 WL 3340697, at *7 (D.N.H. July 25, 2019).2 Less than a week later, the same IJ who conducted Hernandez‘s first bond hearing held a second hearing in accordance with the district court‘s order. The government relied once again on the Red Notice and additionally argued that Hernandez was a flight risk because her asylum claim had been denied by both the IJ and the Board of Immigration Appeals (BIA), though it was pending before this court at the time. Hernandez countered that the Red Notice was defective, as it contained no factual allegations that Hernandez committed any crime or was part of any gang activity, and that she has no history of criminal conviction. As to flight risk, Hernandez argued she had a meaningful chance of relief in her appeal before us and that she had family ties, employment, and a residence in Maine to which she would return.
Because the burden of proof is now on the Government, I do find that to be outcome determinative in this case for the reasons I stated in [the first bond hearing]. While [Hernandez] does have accusations, absent any other details or any other evidence, I‘m able to conclude that it isn‘t clear and convincing to show that she‘s a danger, especially where she has no other criminal history here in the United States.
Given her community ties, fixed address, and work history, the IJ also found that Hernandez was not a flight risk. As a result, the IJ released Hernandez after she spent over ten months in detention.
As noted, the IJ had previously denied Hernandez‘s asylum, withholding, and CAT claims on the merits, finding her credible but also concluding that “she failed to demonstrate that her familial connection to her brother was ‘one central reason’ that the gang singled her out” and that “the police would have protected [her] from the gang if she had reported the threats because the police had protected her from her ex-partner in the past.” Hernandez Lara v. Barr, 962 F.3d 45, 52 (1st Cir. 2020). After the BIA affirmed that ruling, Hernandez appealed. Nearly a year after Hernandez was released from custody, we vacated the BIA‘s decision and remanded for further proceedings, which are ongoing. See id. In the meantime, the government filed this
II.
“It is well established that ‘[o]ur review of a district court‘s grant or denial of habeas is de novo.‘” Sanchez v. Roden, 753 F.3d 279, 293 (1st Cir. 2014) (alteration in original) (quoting Healy v. Spencer, 453 F.3d 21, 25 (1st Cir. 2006)). Before undertaking that review, we first survey the statutory and regulatory framework challenged by Hernandez.
The Immigration and Nationality Act (“INA“) provides that the government must detain for the duration of removal proceedings most noncitizens who have committed certain types of criminal offenses.
An Immigration and Customs Enforcement (“ICE“) officer makes the initial detention determination for noncitizens subject to detention under
In 1996 Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA“).
Nevertheless, following the enactment of IIRIRA, the Immigration and Naturalization Service (INS) adopted new regulations establishing a presumption of detention in the initial
Accordingly, under current BIA precedent, a noncitizen detained under
III.
We turn now to the merits of this appeal. In Jennings v. Rodriguez, the Supreme Court held that, as a matter of statutory interpretation,
We address each factor in turn, focusing first on the allocation of the burden of proof. We then address separately the government‘s contention that, notwithstanding any analysis of the Mathews factors, precedent calls for us to rule in the government‘s favor. Finally, we address the extent of the burden to be borne.
“Freedom from imprisonment -- from government custody, detention, or other forms of physical restraint -- lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (citing Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). The Supreme Court has repeatedly affirmed that “[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987); see also Foucha, 504 U.S. at 80 (“We have always been careful not to minimize the importance and fundamental nature of the individuals’ right to liberty.“). For this reason, “civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protections.” Addington, 441 U.S. at 425 (emphasis added).
Hernandez was incarcerated alongside criminal inmates at the Strafford County Jail for over ten months. See Velasco Lopez, 978 F.3d at 850 (“[Petitioner] was not ‘detained‘; he was, in fact, incarcerated under conditions indistinguishable from those imposed on criminal defendants sent to prison following convictions for violent felonies and other serious crimes.“) During that time, she was separated from her fiancé and unable to maintain her employment. But for the relief ordered in this action, she would
In an attempt to downplay that deprivation, the government notes that Congress may make rules for noncitizens “that would be unacceptable if applied to citizens,” Demore, 538 U.S. at 522, and that “detention during deportation proceedings [is] a constitutionally valid aspect of the deportation process,” id. at 523. But the same could be said for criminal proceedings. And in either case the fact that some detention is permissible does not change the fact that a detainee suffers significant liberty deprivations. Moreover, the government‘s exercise of its power to detain immigrants pending removal “is subject to important constitutional limitations.” Zadvydas, 533 U.S. at 695. That is because due process “applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Id. at 693; see also Mathews v. Davis, 426 U.S. 67, 77 (1976) (explaining that due process “protects every [noncitizen] from deprivation of life, liberty, or property without due process of law. Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection“).
The government next contends that “individuals detained under section 1226(a) can unilaterally decide to end their detention at any time by simply conceding to removal and being released into their home country.” For that reason, the government asserts, Hernandez‘s liberty interest is less than that of the detainees in Addington and Foucha, who faced indefinite confinement and could only end their detention by “meeting a disputed burden of proof.”
This argument is a bit like telling detainees that they can help themselves by jumping from the frying pan into the fire.
We recognize that removal proceedings have an end point and that the liberty interest of a noncitizen detained under
B.
For several reasons, the second Mathews factor -- “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards” -- likewise weighs heavily in Hernandez‘s favor. 424 U.S. at 335.
First, noncitizens have no right to be provided with counsel in immigration proceedings and very often cannot obtain counsel on their own, particularly if they are detained. See
Third, noncitizens subject to immigration detention often lack full proficiency in English. See, e.g., Hernandez-Lara, 962 F.3d at 55 (noting that Hernandez “does not speak, read, or write English“).
Fourth, immigration law and procedures and the particular preferences of individual IJs are likely much better known to government representatives than to detainees. Cf. Santosky v. Kramer, 455 U.S. 745, 763 (1982) (noting heightened risk of error in parental rights termination proceedings exists in part because “[t]he State‘s attorney usually will be an expert on the issues contested and the procedures employed at the factfinding hearing“).
Finally, proving a negative (especially a lack of danger) can often be more difficult than proving a cause for
This very case evidences how the allocation of the burden of proof can affect the likelihood of such error. With a record of employment, family relations, a settled place in the community, and no arrests, Hernandez would seem to have been a good candidate for conditional release on bail. Indeed, no party claims that she has absconded or committed any crime during the year and a half that she has been out on bail. Yet as the IJ‘s rulings make clear, the placement of the burden of proof on Hernandez decisively exploited her inability to rebut the Red Notice, even though it did not specify a single act of criminal or dangerous conduct.
As the Supreme Court has observed, a noncitizen‘s “removable status itself . . . bears no relation to a detainee‘s dangerousness.” Zadvydas, 533 U.S. at 691-92. Thus, as a practical matter, adjudication of dangerousness will naturally tend to begin with the government offering a reason to find a particular person dangerous, with that person then addressing the proffered reason. And that reason will in most cases be based on law enforcement records to which the government will have greater
As the government argues, detained noncitizens may certainly have a better grasp of some information relevant to flight risk -- such as family ties, length of time in the United States, or record of employment. Nevertheless, they also face significant barriers to accessing such evidence in the wake of their seizure and initial detention. Moreover, none of this is to say that an IJ cannot draw a negative inference from the fact that a detainee offers no evidence on her behalf. Rather, it is to say that the odds of error in the weighing of such evidence (or its absence) are likely reduced by placing the burden on the government, as in virtually all other instances of proposed lengthy detention.
We turn to the final Mathews factor -- “the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail” -- which ultimately entails an assessment of the “public interest.” 424 U.S. at 335, 347. The government‘s proffered interest is the “public interest in prompt execution of removal orders” and the “importance of immigration detention to effectuate immigration proceedings.” In support of this interest, the government points to legislative history stating that section 1226(a) was enacted based on concern that “[a] chief reason why many deportable aliens are not removed from the United States is the inability of [immigration officials] to detain such aliens through the course of their deportation proceedings.” H.R. Rep. 104-469, pt. 1, at 123 (1996). Of course, Congress‘s answer was to focus on certain criminal noncitizens, not to alter in any way the then-prevailing burden allocation in section 1226(a) proceedings.
The prompt execution of removal orders is a legitimate governmental interest, see Nken v. Holder, 556 U.S. 418, 436 (2009), which detention may facilitate, see Aguilar v. U.S. Immigr. & Customs Enf‘t, 510 F.3d 1, 22 (1st Cir. 2007) (recognizing “the government‘s legitimate interest in effectuating detentions
The government fails to explain why its proffered interest in securing appearance at removal proceedings and for deportation holds sway where a noncitizen is not a flight risk. See Hernandez v. Sessions, 872 F.3d 976, 990 (9th Cir. 2017) (“The government has legitimate interests in protecting the public and in ensuring that noncitizens in removal proceedings appear for hearings, but any detention incidental to removal must ‘bear[] [a] reasonable relation to [its] purpose.‘” (quoting Zadvydas, 533 U.S. at 690)); see also Ingrid Eagly et. al., Detaining Families: A Study of Asylum Adjudication in Family Detention, 106 Cal. L. Rev. 785, 848 (2018) (finding that during the period 2001 to 2016, “86% of family detainees attended all their court hearings” after release from detention, and among those seeking asylum, “96% attend[ed] all their hearings“). The only argument the government
Perhaps more importantly, such unnecessary detention imposes substantial societal costs. This case illustrates those costs well: Because of her incarceration, Hernandez was separated from her fiancé and unable to maintain her employment, after living peacefully in Portland for over a year. More generally, noncitizens subject to immigration detention include spouses, children, and parents of U.S. citizens, caretakers of children and elderly relatives, and leaders in religious, cultural, and social
In short, given the risk that the current procedures lead to many instances of needless detention, entailing substantial social and financial costs, the public interest in placing the burden of proof on the detainee is uncertain at best, and may well be negative.
Pointing to section 1226(a), as well as a related provision,
Likewise, the government makes much of the Court‘s statement in Nielsen v. Preap that section 1226(a) gives the government “broad discretion” to detain or release noncitizens.
Shifting gears, the government contends that it would be “backwards” to “put the burden on the Government to justify the alien‘s detention during the interim period when the Government is pursuing removal when the burden is on the alien [to prove that he or she was admissible or to prove a defense to removal] in the underlying removal proceedings themselves.” See
In a final salvo, the government contends that two of our sister circuits have ruled in a manner inconsistent with our holding today. See Ali v. Brott, 770 F. App‘x 298 (8th Cir. 2019); Borbot v. Warden Hudson Cnty. Corr. Facility, 906 F.3d 274 (3d Cir. 2018). We see no conflict.
To start, although Ali contains dicta that portends a different result from that reached here, the Eighth Circuit made clear that it was not reaching the constitutional question that is now before us. See 770 F. App‘x at 302. Likewise, the issue presented here was not before the court in Borbot, which was a challenge based on length of detention in which the petitioner sought “to compel a second bond hearing despite alleging no constitutional defect in the one he received.” 906 F.3d at 279 (second emphasis added). And although the court in Borbot stated that the petitioner had been granted “meaningful process” under section 1226(a), it made that statement in order to contrast section 1226(a) with section 1226(c), under which there is no bond hearing. Furthermore, even assuming that “meaningful process” language indicates that the Third Circuit might have viewed the procedures under section 1226(a) to be constitutionally adequate, the Third Circuit‘s subsequent decision in German Santos v. Warden Pike Cnty. Corr. Facility, 965 F.3d 203 (3d Cir. 2020), casts doubt on the continuing validity of that view. In German Santos, the court held that the government is required to bear the burden of proving by clear and convincing evidence that a noncitizen is a danger or flight risk once detention has become unreasonably prolonged under section 1226(c). Id. at 213-14. That ruling was based on the Addington line of cases, and we struggle to see why the Third Circuit would have required those heightened protections if its statement in Borbot -- that the procedures under section 1226(a) provide “meaningful process” -- indicates that those procedures comply with due process.
In sum, the balance of the Mathews factors weighs in favor of Hernandez: “[T]he private interest affected is commanding; the risk of error from [placing the burden of proof on the noncitizen] is substantial; and the countervailing governmental interest . . . is comparatively slight.” Santosky, 455 U.S. at 758.
D.
The government urges that notwithstanding the foregoing assessment of the three Mathews factors, precedent precludes us from placing any burdens of proof on the government. First, it argues that the Supreme Court has in three cases upheld detention of noncitizens pending removal proceedings “on the basis of a
Each of these cases, however, is distinguishable from the circumstances presented here. In Demore, the Court held that section 1226(c)‘s mandatory detention provision, which applies to noncitizens convicted of specified crimes and provides no opportunity for release on bond in the mine-run of such cases, does not violate due process. See 538 U.S. at 528-531;
In upholding the constitutionality of section 1226(c)‘s mandatory detention procedure in Demore, however, the Court
The circumstances here are quite different. Unlike section 1226(c), section 1226(a) applies to a wide swath of noncitizens, many of whom, like Hernandez, have no criminal record at all.
The government responds that, like section 1226(c), section 1226(a) was enacted as part of IIRIRA, which was motivated by Congress‘s concern that “[a] chief reason why many deportable aliens are not removed from the United States is the inability of [immigration officials] to detain such aliens through the course
Carlson v. Landon is also distinguishable. Carlson involved a challenge by noncitizens accused of participating in Communist activities to their detention pending a determination of removability. See 342 U.S. at 528-29. Although the individuals detained in Carlson had not been determined to be dangerous or a flight risk, the Court upheld their detention “by reference to the legislative scheme to eradicate the evils of Communist activity.” Id. at 543. The purpose of that legislative scheme, the Internal Security Act, was to “deport all alien Communists as a menace to the security of the United States,” id. at 541, based on Congressional findings that the “Communist organization in the
all alien Communists are deportable, like Anarchists, because of Congress’ understanding of their attitude toward the use of force and violence in such a constitutional democracy as ours to accomplish their political aims, evidence of membership plus personal activity in supporting and extending the [Communist] Party‘s philosophy concerning violence gives adequate ground for detention.
Thus, much as in Demore, Congress made specific findings as to the dangerousness of a class of noncitizens, and those findings were found to have justified the detention of noncitizens even in the absence of individualized determinations as to danger and flight risk. But for the same reasons that Demore is a poor analog to this case, so too is Carlson: no similar findings regarding dangerousness or flight risk have been made as to the class of noncitizens detained under section 1226(a). Moreover, as Hernandez points out, Carlson does not address the question of burden of proof, which was not the basis of the petitioners’ challenge. Indeed, to the extent Carlson references burdens of proof, the Court explained that the Attorney General does not have “untrammeled discretion as to bail,” but rather “[c]ourts review
Nor does Reno v. Flores control this case. Flores involved, among other things, a procedural due process challenge to a regulation that denied bail to noncitizen minors in removal proceedings who could not be released into the custody of a parent, legal guardian, or adult relative. See 507 U.S. at 297, 306-09. The relevance of Flores to this case is not immediately apparent, as the detained minors’ challenge was not based on the allocation or standard for the burden of proof applicable to the custody determination. Rather, the minors’ principal argument was that the immigration agency should be required to determine whether “detention . . . would better serve [their] interests than release to some other ‘responsible adult,‘” even if that adult was not a parent, guardian, or relative. Id. at 308.
Undeterred, the government points to the Court‘s statement that “due process is satisfied by giving the detained alien juveniles the right to a hearing before an immigration judge,” id. at 309 (emphasis in original), and argues that because every noncitizen detained under section 1226(a) has a right to a bond hearing, due process is satisfied. The Court‘s statement, however, was simply a response to the lower courts’ holding that the agency‘s “procedures are faulty because they do not provide
In another line of attack, the government shifts its focus back to Demore, arguing that the Court in that case “rejected the applicability” of Addington and Foucha in the context of noncitizens detained during the pendency of removal proceedings. The majority opinion in Demore, however, does not mention Foucha, Addington, or similar civil detention cases, despite the fact that the dissent repeatedly cites them in support of its position. We decline to read the majority‘s silence as to Foucha and Addington as an across-the-board “rejection” of their applicability in immigration detention cases. See Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 18 (2000) (“This Court does not normally overturn . . . earlier authority sub silentio.“) Addington specifically admonished that “civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protections,” 441 U.S. at 425 (emphasis added), and as the government itself acknowledges, Zadvydas, also
Despite Zadvydas‘s reliance on Foucha, the government next argues that Zadvydas in fact supports its position that the noncitizen seeking release, not the government, should bear the burden of proof at a section 1226(a) bond hearing. In Zadvydas, the Court confronted the “serious constitutional problem arising out of a statute that . . . permits an indefinite, perhaps permanent, deprivation of human liberty without” sufficient procedural protection. 533 U.S. at 692. To avoid that problem, the Court construed the statute -- which authorizes the detention
This hunt for inferential support in Zadvydas overlooks the Court‘s express criticism of the underlying statute for putting the burden of proving dangerousness on the noncitizen. See id. at 691-92 (noting that “preventive detention based on dangerousness” must be “subject to strong procedural protections” and disapproving of the fact that under the statute “the alien bears the burden of proving he is not dangerous“). Moreover, the burden placed on the noncitizen in Zadvydas -- to “provide[] good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future,” id. at 701 -- is quite different from the burden placed on a noncitizen detained under section 1226(a) to “show to the satisfaction of the Immigration
The government also points to language in the Jennings dissent which it contends approves of the existing procedures under
The government similarly contends that two district court decisions in our circuit approved of the procedures governing
Leaving no stone unturned, the government lastly points to a district court opinion which it claims held contrary to our conclusion here. See Maldonado-Velasquez v. Moniz, 274 F. Supp. 3d 11, 14-15 (D. Mass. 2017). But, beyond venturing a “guess,” the district court did not decide the due process issue. Id. at 15. Instead, it assumed arguendo that the burden had been misallocated but concluded that the petitioner could not show any prejudice flowing from that error. Id. at 13-14. We dismissed the petitioner‘s appeal as moot. Maldonado-Velasquez v. Moniz, No. 17-1918 (1st Cir. March 22, 2018). And although we stated that the petitioner‘s “due process claim is not compelling,” it is clear, as the government itself notes, that we were referring to the petitioner‘s inability to show prejudice. Id. at n.2.
For all of the foregoing reasons, we remain unconvinced by the government‘s contention that we should not view an analysis of the Matthews factors as ultimately controlling. We therefore conclude that the government must bear the burden of proving
E.
Having decided that the government bears the burden of proof, we now turn to the extent of that burden. “[T]he function of legal process is to minimize the risk of erroneous decisions,” Addington, 441 U.S. at 425, and the standard of proof “serves to allocate the risk of error between the litigants,” id. at 423. In detention cases, applying a heightened “standard of proof . . . reflects the value society places on individual liberty,” id. at 425 (quoting Tippett v. Maryland, 436 F.2d 1153, 1166 (4th Cir. 1971)(Sobeloff, J., concurring in part and dissenting in part), and avoids the risk associated with the preponderance standard of “increasing the number of individuals erroneously committed,” id. at 426 (noting “it is at least unclear to what extent, if any, the state‘s interests are furthered by using a preponderance standard“). See also id. at 423 (explaining that, in contrast to cases in which liberty from detention is at issue, in “monetary dispute[s] between private parties . . . society has a minimal concern with the outcome . . . [and so] plaintiff‘s burden of proof is a mere preponderance of the evidence“).
Therefore, in several contexts, the government must justify detention by clear and convincing evidence. See, e.g.,
As to the government‘s burden to prove that a noncitizen presents a danger, we see no reason to vary from that approach: For the reasons described above, there is a heightened risk of prejudicial error and the government has ample and better access to evidence of dangerousness. See supra Section III.B.9
But with respect to flight risk, the second Mathews factor leads us to conclude that the government need only carry its burden by a preponderance of the evidence. Simply put, there is less risk of error from a preponderance standard on this issue because, as noted, detained citizens possess knowledge of many of the most relevant factors, such as their family and community ties,
Two other considerations underlie our decision. First, a noncitizen‘s flight risk (as opposed to his or her danger) has a close nexus to the government‘s interest in ensuring the prompt execution of deportation orders. Second, although the Court has consistently required a clear and convincing standard when the government seeks to detain on the basis of danger, most of those cases do not involve risk of flight. In the analogous context of pretrial criminal detention under the Bail Reform Act, where flight risk is a factor, the government need only prove flight risk by a preponderance of the evidence in order to continue detention. See United States v. Patriarca, 948 F.2d 789, 793 (1st Cir. 1991).
Of course, the analogy to criminal pretrial detention has its limits. Criminal defendants, for example, have a right to government-appointed counsel,
In sum, we hold that, in order to continue detaining Hernandez under
IV.
We consider, next, the question of prejudice. Normally “[w]hen faced with a constitutional due process claim in the immigration context, we ask whether the procedure at issue ‘is likely to have affected the outcome of the proceedings’ as a condition of relief.” Hernandez Lara, 962 F.3d at 57 (quoting Pulisir v. Mukasey, 524 F.3d 302, 311 (1st Cir. 2008)); see also Lopez-Reyes v. Gonzales, 496 F.3d 20, 23 (1st Cir. 2007) (“Absent cognizable prejudice, there is no due process claim.“) Although Hernandez argues that “a misallocated burden of proof is a structural error [that] constitutes a per se prejudice,” we need not reach that argument. As the IJ observed, the reallocation of the burden of proof ordered by the district court proved pivotal in changing the result from detention to release. Nor has the government challenged the district court‘s finding that Hernandez was prejudiced. Cf. Hernandez Lara, 962 F.3d at 56-57 (noting a circuit split on “whether a petitioner who was improperly denied counsel in immigration proceedings must demonstrate that the denial resulted in prejudice” but declining to decide the question given that the petitioner was clearly prejudiced).
Before concluding, we address three arguments made by the dissent in support of its claim that our decision amounts to “judicial hubris.”
A.
The dissent contends first that we should grant Hernandez relief on a statutory basis, rather than on constitutional grounds. The relief proposed by the dissent under the Administrative Procedures Act (APA) is a declaration that enforcing the BIA‘s current allocation of the burden of proof is unlawful because the BIA acted in an arbitrary and capricious manner when it placed the burden of proof in bond hearings on noncitizens. The dissent would then vacate the district court‘s current injunction and judgment and remand for the district court to determine the “scope of any injunctive relief.” The scope of that injunctive relief, however, would necessarily be limited to enjoining the enforcement of the BIA‘s current arbitrary and capricious bond procedures, which would leave in place the prior procedures. Though those procedures placed the burden of proof on the government, they did not require the government to bear that burden by clear and convincing evidence. See Matter of Patel, 15 I. & N. Dec. at 666 (“An alien generally is not and should not be detained or required to post bond except on a finding that he is
Hernandez, though, asks not just that the burden of proof be allocated to the government. She claims that the constitution requires the government to carry that burden by clear and convincing evidence. The district court agreed; the IJ then applied the clear and convincing standard; Hernandez was set free; and the government now appeals, asking us to rule that Hernandez was not entitled to a clear and convincing standard as to danger or flight risk. So resolving this action by deciding the APA claim developed by the dissent in Hernandez‘s favor, as the dissent proposes, would deny by neglect a central aspect of the relief sought by Hernandez under her constitutional claim.11 Ruling as the dissent proposes would also require that we more broadly vacate the relief ordered by the district court, and allow for a new
B.
The dissent also contends that our decision infringes on the province of the political branches. That general accusation can be made in every case involving an administrative rule or congressional statute, including every due process case. Clearly, the fact that another branch has acted in an area is an insufficient reason to refrain from exercising our “duty . . . to say what the law is,” Marbury v. Madison, 5 U.S. 137, 177 (1803), even in immigration and detention cases, and even where doing so requires setting aside Congressional enactments, executive actions, or state statutes. See, e.g., Zadvydas, 533 U.S. at 695
As these and many other cases make clear, ours is a system in which even the most sensitive and critical exercises of power by the political branches can be constrained by the rights of the individual. In few instances are those constraints more necessary than when the government seeks to lock up individuals behind bars. Addington, 441 U.S. at 425 (“[C]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protections.“). And it is precisely the role of the judiciary to define those constraints. Far from violating the separation of powers, exercising that role is integral to
We are mindful that immigration is “interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.” Demore, 538 U.S. at 522. But nothing in our opinion today prevents the political branches from detaining noncitizens where necessary, let alone from exercising the power to exclude or expel noncitizens. Moreover, even where war and foreign relations are at issue, the Constitution “most assuredly envisions a role for all three branches when individual liberties are at stake.” Hamdi, 542 U.S. at 536; see also Zadvydas, 533 U.S. at 695. And as we explained above, the Court has consistently held that due process “applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693. Though we hope and expect that the political branches exercise their authority in harmony with the rights of noncitizens, history and common sense teach that rights are most likely to be disregarded when they belong to those who cannot vote. Cf. United States v. Carolene Prod. Co., 304 U.S. 144, 153 n.4 (1938) (noting
We stress as well that nothing in our decision restricts the political branches from implementing more nuanced rules for the adjudication of requests for release under
C.
Finally, the dissent contends that our decision is overly broad because the current bond procedures are constitutional in at least some cases, dooming a facial challenge to those procedures. To this contention we offer two responses.
Second, the dissent‘s reasoning seems flawed, even circular. The logic of the dissent appears to be that if there is sufficient evidence of flight risk in a particular case (e.g., per the dissent, fleeing from a checkpoint) the government need not carry the burden of proving flight risk in that particular case. But “the right to procedural due process . . . does not depend upon the merits of a claimant‘s substantive assertions.” Carey v. Piphus, 435 U.S. 247, 266 (1978). Moreover, the dissent‘s argument begs the question: What burden and standard would apply in determining whether the merits of the request for release are sufficient to obviate the need for placing the burden on the government? The dissent does not say. If the burden is as we suggest it should be, then the dissent‘s approach simply front ends the application of that requirement. And if it is a lesser burden, then the dissent‘s approach is simply a round-about way of saying that there should be a lesser burden.
Given all of the above, it is unsurprising that the Supreme Court has consistently decided procedural due process
In none of these cases did the Court limit its holding to the specific individual before it or indicate that the requirements of due process would fluctuate based on the strength of any particular individual‘s case on the merits.12 Cf. Addington,
Nor did such cases vary the requirements of due process for different “subcategories” of detainees, e.g., those with certain types of mental illness or those who have committed certain types of crimes. Similarly, cases outside of the detention context
We are far from alone in applying procedural due process protections to well-defined categories of noncitizens (e.g.,
Recognizing well-defined categorical rules in procedural due process cases is unsurprising from the standpoint of judicial and administrative efficiency. Otherwise, every controversy would become two cases in one: a determination of the procedures required by due process, followed by a resolution of the merits. For detention pending the completion of removal proceedings, that
For all of these reasons, we decline the dissent‘s invitation to gum up the adjudication of immigration bond proceedings by requiring a case-by-case determination of the burden of proof.
VI.
For the foregoing reasons, we affirm in part, reverse in part, and remand to the district court with instructions to allow the government, should it wish to do so, to conduct a new hearing before the Immigration Judge at which, in order to reinstitute Hernandez‘s detention, the government will need to prove flight risk by a preponderance of the evidence.
- Dissenting Opinion Follows -
It is a “cardinal principle of judicial restraint,” that “if it is not necessary to decide more, it is necessary not to decide more.” PDK Lab‘ys Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and dissenting in part). That principle is never more important than when we can resolve a case on statutory grounds to avoid reaching a constitutional question. See, e.g., Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). And our obligation to avoid a constitutional judgment becomes even stronger when doing so allows us to return decisions to politically accountable actors. Cf. Quill v. Vacco, 80 F.3d 716, 738-40 (2d Cir. 1996) (Calabresi, J., concurring in the judgment) (articulating theory of “constitutional remand“).
In these related cases challenging the Board of Immigration Appeal‘s (“BIA“) allocation of burdens in discretionary immigration bond proceedings to detained noncitizens
I also dissent because the majority‘s due process holding is, in my view, quite wrong on the merits. No court should needlessly constitutionalize a rule that is better left to the executive and the Congress, which are, after all, responsive to the voters.
I.
We heard argument on the same day in three cases challenging the BIA‘s Adeniji decision, allocating the burdens of production and persuasion in discretionary immigration bond proceedings: this case; Doe v. Tompkins, No. 19-1368; and Pereira-Brito v. Garland, Nos. 20-1037 and 20-1119. In both Doe and Pereira-Brito, the plaintiffs pleaded their detention under Adeniji was illegal
Those APA arguments are properly before us. Though the courts below did not reach those arguments and though the plaintiffs have not pressed them robustly before us, we may decide a case on any grounds supported by the record. Steinke v. Sungard Fin. Sys., Inc., 121 F.3d 763, 768 (1st Cir. 1997). When we can avoid a constitutional question, we must turn to such other grounds even when the litigants lead with their constitutional claims. See Greenless v. Almond, 277 F.3d 601, 605-07 (1st Cir. 2002). Indeed, the Supreme Court has often endorsed a more lenient approach to ordinary waiver rules when that approach allows the Court to avoid thorny constitutional questions. See, e.g., Reno v. Flores, 507 U.S. 292, 300 n.3 (1993); Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 142 (1946).
II.
Having established that the APA questions are properly before us, I turn to the regulatory and statutory context for the APA challenge.
Congress has long authorized the Attorney General to detain noncitizens in deportation proceedings.15 For most of the twentieth century, the relevant statutes vested the Attorney General with discretion to detain, release on bond, or conditionally parole such noncitizens. Pub. L. No. 414, § 242(a), 66 Stat. 208, 208-09 (1952); Pub. L. No. 831, § 23(a), 64 Stat. 1010, 1011 (1950). Neither those statues nor their implementing regulations defined who bore the burden of proof in bond proceedings. See id.; Authority to Issue and Cancel Orders to Show Cause; Authority to Issue Warrants of Arrest, 39 Fed. Reg. 20,367 (June 10, 1974) (codified at
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA“), which categorically denied bond to noncitizens in deportation proceedings who have been convicted of aggravated felonies and certain other offenses. Pub. L. No. 104-208, § 303(a), 110 Stat 3009 (codified at
To implement IIRIRA during and after the transition period, the Immigration and Naturalization Service (“INS“) adopted a series of regulations.16 Naturalization Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10312 (Mar. 6, 1997). As relevant here, those regulations provide that:
Any officer authorized to issue a warrant of arrest [(i.e., immigration officials but not
immigration judges)] may, in the officer‘s discretion, release [a noncitizen] not described in section 236(c)(1) of the Act [(a criminal noncitizen)], under the conditions at section 236(a)(2) [(permitting bond or parole)] and (3) [(prohibiting work authorization)] of the Act; provided that the [noncitizen] must demonstrate to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the [noncitizen] is likely to appear for any future proceeding.
Despite this assertion of purported continuity, the final rule changed the presumption of release before immigration officials. In adopting the rule, the INS briefly explained the change relying heavily on a report from the Inspector General of the Department of Justice:
Several commenters stated that § 236 of the proposed rule as written is a reversal of long established procedure that provides that a noncriminal [noncitizen] is presumptively eligible for release. The Service has been
strongly criticized for its failure to remove [noncitizens] who are not detained. A recent report by the Department of Justice Inspector General shows that when [noncitizens] are released from custody, nearly 90 percent abscond and are not removed from the United States. The mandate of Congress, as evidenced by budget enhancements and other legislation, is increased detention to ensure removal. Accordingly, because the Service believes that the regulation as written is consistent with the intent of Congress, the interim rule has not modified the proposed rule in this regard.
62 Fed. Reg at 10,323 (citing Dep‘t of Justice, Off. Inspector General, Rep. No. I-96-03, Immigration and Naturalization Service Deportation of Aliens After Final Orders Have Been Issued (1996) (“OIG Report“), https://oig.justice.gov/reports/INS/e9603/index.htm). Two points are notable here. First, the Inspector General‘s report was concerned with noncitizens subject to a final order of removal, not the relevant category for
After an initial custody determination by the district director, including the setting of a bond, the respondent may, at any time before an order [of removal] becomes final, request amelioration of the conditions under which he or she may be released. Prior to such final order, and except as otherwise provided in this chapter, the [IJ] is authorized to exercise the authority in [
8 U.S.C. § 1226 ] to detain the [noncitizen] in custody, release the [noncitizen], and determine the amount of bond, if any, under which the respondent may be released, as provided in § 3.19 of this chapter [(procedural rules)].
Following adoption of those regulations, the BIA abrogated Patel and stated -- not in a regulation but only in a reported decision in a single case -- that “for ordinary bond determinations [before IJs] under [
The BIA tried to justify its departure from Patel by relying on the new regulation, which did not concern IJs, and stated that the regulation required it to shift the burden of proof in detention proceedings before IJs. Id. at 1103, 1113. After determining that the regulations applied both during and after the transition period, id. at 1107-1112, the BIA held that:
[f]rom the outset . . . the regulations under the IIRIRA have added as a requirement for ordinary bond determinations under section 236(a) of the Act that the [noncitizen] must demonstrate that “release would not pose a danger to property or persons,” even though section 236(a) does not explicitly contain such a requirement. . . . We deem the regulatory provision at
8 C.F.R. § 236.1(c)(8) to contain the appropriate test, as it is binding on us and pertains directly to removal proceedings under the IIRIRA. Consequently, to be eligible for bond, the respondent must demonstrate that his “release would not pose a danger to property or persons, and that (he) is likely to appear for any future proceeding.”
Id. at 1113 (citation omitted).
III.
An agency‘s decision is arbitrary or capricious when it overlooks relevant issues or when it fails to “articulate a satisfactory explanation for its action.” Motor Vehicle Mfrs. Ass‘n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). When an agency changes an established policy, it must show that “the new policy is permissible under the [relevant] statute, that there are good reasons for it, and that the agency believes it to be better.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).
In my view, the Adeniji decision by the BIA is arbitrary and capricious. It rests on at least two erroneous and unreasoned
A.
The only reason the BIA offered for its departure from Patel was that
The text of
Indeed, the regulation which actually governs bond proceedings before IJs is different.
The regulation also is different in its description of the discretion IJs have in setting bond conditions. It authorizes IJs “to exercise the authority in [
Our review is limited to reviewing the grounds the BIA offered for departing from Patel. SEC v. Chenery Corp., 318 U.S. 80, 94 (1943). The only grounds the BIA offered in Adeniji was that
Not only did the BIA misinterpret
First, in adopting the regulation, the INS “entirely failed to consider an important aspect of the problem.” State Farm, 463 U.S. at 43. A key aspect of any detention regime is the relative dangerousness and flight risk of different classes of detainees. See, e.g.,
A few examples from these cases illustrate the wide range of risk different noncitizens pose. Doe was picked up after two serious criminal charges: carrying a weapon-sized knife and assault and battery. He did not even apply for asylum until after he requested a bond hearing, though he had three years to do so before his arrest.18 And while Hernández-Lara had not committed criminal offenses in the United States, an Interpol red notice said that she had done so in El Salvador and was a member of the Pandilla 18 street gang. If the IJ erred in initially denying bail based on that information, Hernández-Lara had an administrative appeal available to her, which the majority‘s opinion has pretermitted and necessarily concluded is inadequate under the Due Process Clause. On the other side of the scale, perhaps detainees who are veterans of the U.S. armed forces, and about whom the government consequently has more information, are themselves a special class.
Nor does the record reflect that the INS considered relative risk or burden as to several distinct categories of noncitizen as for which discretionary detention is authorized.
Second, in adopting the regulation, the INS “offered an explanation for its decision that runs counter to the evidence before the agency.” State Farm, 463 U.S. at 43. An agency must “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Id. (citation and internal quotation marks omitted). The INS explained that it shifted the presumption in Adeniji because of the INS‘s reliance on an Inspector General report that “show[ed] that when [noncitizens] are released from custody, nearly 90 percent abscond and are not removed from the United States.” 62 Fed. Reg at 10,323. The report says nothing of the kind. See OIG Report; see also Holper, The Beast of Burden in Immigration Bond Hearings, 67 Case W. Res. L. Rev. 75, 90–91 n.56 (2016). Rather, the Inspector General reported that the “INS was successful in deporting only about 11 percent of nondetained noncitizens after final orders [of removal]
Given the agency‘s reference to irrelevant statistics alone to support the rule, I find its “reasoning to be inscrutable at best and, given the information available to the agency, facially irrational.” Marasco & Nesselbush, LLP v. Collins, No. 20-1397, 2021 WL 3012705, at *14 (1st Cir. July 16, 2021).
The INS acted arbitrarily and capriciously when it adopted
C.
The government offers three arguments for why the BIA‘s departure from Patel was not arbitrary or capricious. None are persuasive.
The government first argues that Jennings v. Rodriguez, 138 S. Ct. 830 (2016), forecloses any attempt to require the government to bear the burden of proof in
The government next argues that “the [BIA‘s] holding in [Adeniji] represents a reasonable interpretation of Section 1226(a) and is entitled to deference under Chevron principles.” But the BIA did not interpret
Finally, the government argues that Adeniji does not actually depart from prior decisions because it already had the authority to determine whether and how to release noncitizens on bond. Authority to act is necessary but not sufficient for an agency to change course. See Fox Television, 556 U.S. at 515. Even when an agency has broad authority, it must justify a change
D.
Because the BIA‘s allocation of the burden of proof rests on arbitrary or capricious foundations, enforcing it against noncitizens in discretionary bond proceedings is unlawful.
IV.
I turn next to the majority‘s constitutional holding.
A.
“[P]rior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision.” Buchanan v. Maine, 469 F.3d 158, 172 (1st Cir. 2006) (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 99 (1981)) (quotation marks omitted). As we can resolve this case on APA grounds, the majority‘s constitutional analysis is “unnecessary
On top of general principles of judicial restraint and constitutional avoidance, three considerations specifically support avoiding a constitutional ruling here.
The effect of the majority‘s opinion is to arrogate to the judiciary control over immigration bond procedures. In most areas of law, we should be cautious in constitutionalizing agency procedures. But in immigration, where Congressional powers are at their apex and judicial powers are at their nadir, see, e.g.,
Deciding this case on constitutional due process grounds, as the majority does, is premature and particularly ill-advised given the subject matter. See Clinton v. Jones, 520 U.S. 681, 690 & n.11 (1997). “One of the major advantages of [judicial] minimalism is that it grants a certain latitude to other branches of government by allowing the democratic process room to adapt to future developments, to produce mutually advantageous compromises, and to add new information and perspectives to legal problems.” Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4, 19 (1996). In facially holding that a noncitizen may never bear the burden of proof in an immigration bond hearing, see infra Part IV.B, the majority shuns the benefits of further democratic development. Cf. Hightower v. City of Boston, 693 F.3d 61, 76-78 (1st Cir. 2012) (disfavoring facial challenges).
Further, since this litigation began, a new presidential administration has taken office and has begun to change immigration policy. See, e.g., Memorandum from David Pekose, Acting Sec‘y, Dep‘t Homeland Sec., Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities (Jan. 20, 2021) (announcing 100-day moratorium on most removal proceedings),
Finally, the majority‘s overreach will have serious practical consequences. Our immigration system is taxed to its limits.19 By shifting both the burden of production and persuasion
The majority contends that constitutional avoidance is unavailable to us in this case because deciding the APA claim in favor of Hernández-Lara would afford her only partial relief. That contention fails because equitable relief “must be ‘no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.‘” Sindi v. El-Moslimany, 896 F.3d 1, 31 (1st Cir. 2018) (quoting Madsen v. Women‘s Health Ctr., Inc., 512 U.S. 753 (1994)). If the government has acted unlawfully under the APA, she is entitled only to the necessarily relief as to that
This case demands judicial restraint. The majority opts instead for judicial hubris.
B.
Though the majority should not have reached the constitutional question, it did. I will briefly state why I think the majority‘s due process analysis is contrary to Supreme Court precedent, contrary to precedent from other circuits, and wrong. I do not take the occasion to expound on my views at great length.
The majority derives from the Due Process Clause a categorical rule. It holds that in all discretionary immigration bond cases the government must bear the burden of proving dangerousness by clear and convincing evidence and flight risk by the preponderance of the evidence. The Due Process Clause does not support that broad conclusion.
The majority also errs in rejecting the current bail detention scheme facially. A facial challenge to detention procedures fails if the procedures are “adequate to authorize the . . . detention of at least some [persons].” Salerno, 481 U.S. at 751 (quoting Schall v. Martin, 467 U.S. 253, 274 (1984) (alteration in original)). And the current bond procedures provide robust enough bond procedures to provide many noncitizens constitutionally sufficient notice and opportunity to be heard.
Even under Mathews v. Eldridge balancing the government may require at least some noncitizens to prove that they are neither dangerous nor flight risks.22 424 U.S. 319, 335 (1976) (looking to “the private interest that will be affected by the official action,” “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards,” and “the Government‘s interest, including the function involved and the
First, while in general the private interest a person has in avoiding detention is strong, a noncitizen‘s interest is considerably more limited. “Detention during removal proceedings is a constitutionally permissible part of that process.” Demore, 538 U.S. at 531. The detainee‘s liberty interest is diminished by the fact that he could voluntarily remove himself from the United States at any time.23 Cf. DHS v. Thuraissigiam, 140 S. Ct. 1959, 1970 (2020) (holding that expedited removal proceedings did not violate the Suspension Clause because asylum seeker could obtain his liberty by consenting to removal). Thus, his real concern is the ability to remain in the United States without being detained.24
Second, the majority‘s adding to and altering of the already robust procedures would do little to improve the accuracy of bond determinations. Under current procedures, noncitizens may
Third, the government has a strong interest in effectively executing immigration law. “Further, it must weigh heavily in the balance that control over matters of immigration is a sovereign prerogative, largely within the control of the executive and the legislature.” Landon v. Plasencia, 459 U.S. 21, 34 (1982).
The current procedures provide detained noncitizens constitutionally sufficient notice and opportunity to be heard. Consider a noncitizen who is removable because he fled from a law enforcement checkpoint in a car. See
“It may be, of course, that in some circumstances detention of [a noncitizen] would not pass constitutional muster.
Although the majority admits that it fashions its analysis “broadly,” it contends that “judicial and administrative efficiency” justifies its holding. Maj. Op. 59. Like so many other problems of constitutional law, however, the level of generality at which we describe the problem is crucial to determining its outcome. See, e.g., Michael H. v. Gerald D., 491 U.S. 110, 127 n.6 (1989). We need not determine the level of due process required in every case through case-by-case adjudication; however, where courts can meaningfully distinguish between relevant categories, courts should not set standards at a greater level of generality. Compare Addington v. Texas, 441 U.S. 418, 431-33 (1979) (setting across-the-board standard for civil commitments on the basis of mental health given the inherent “uncertainties of psychiatric diagnosis“), with Hamdi v. Rumsfeld, 542 U.S. 507, 533–34 (2004) (allowing rebuttable presumption of detention for class of battlefield detainees given the limitations on the government‘s ability to collect and present evidence of dangerousness). Here, there are meaningful distinctions between categories of noncitizens. To give several examples, the government knows far more about -- and thus faces fewer
C.
“[T]his issue is one where careful judicial consideration should not end with a three-judge panel, or even an en banc sitting of a circuit court of appeals, but with the Supreme Court of the United States.” Allapattah Servs., Inc. v. Exxon Corp., 362 F.3d 739, 741 (11th Cir. 2004) (Tjoflat, J., dissenting from denial of petition for rehearing en banc).
The majority‘s constitutional holding, as I have explained, “decide[s] an important federal question in a way that conflicts with relevant decisions of [the Supreme] Court.”
Additionally, the majority‘s decision conflicts with those of our sister circuits on a question of national importance. See Borbot v. Warden Hudson Cty. Corr. Facility, 906 F.3d 274 (3d Cir. 2018) (holding that initial bond hearing in which noncitizen carried the burden of proof satisfied due process, even when noncitizen had been detained for over 14 months).
In Borbot, the Third Circuit held that the Due Process Clause does not require the government to bear the burden of proof in bond proceedings. 906 F.3d at 279. The majority argues that “the issue presented here was not before the court in Borbot.” Maj. Op. 31. Not so. Borbot directly presented the question of whether the government must bear the burden of proof. The Third Circuit expressly ruled on that point of law, and it could not have justified its decision without that ruling. Had the Borbot court not rejected the petitioner‘s burden-of-proof argument, it could not have denied him a new hearing under different procedures. 906 F.3d at 277. Borbot‘s discussion of the burden of proof thus meets the textbook definition of a holding. See Garner, et al.,
The majority also points to a subsequent Third Circuit decision, German Santos v. Warden Pike County Correctional Facility, 965 F.3d 203 (3d Cir. 2020), which it says “casts doubt” on the argument that Borbot accepted the
Further review of the majority‘s holding is warranted to resolve this circuit split and to bring the First Circuit back into compliance with controlling precedent.
I would vacate the injunction and judgment and remand to the district court for further proceedings consistent with this opinion. I respectfully dissent.