Hernandez Lara v. Lyons ( 2021 )

United States Court of Appeals
For the First Circuit
No. 19-2019
ANA RUTH HERNANDEZ-LARA,
Petitioner, Appellee,
v.
TODD M. LYONS, Immigration and Customs Enforcement, Enforcement
and Removal Operations, Acting Field Office Director,
Respondent, Appellant,
CHRISTOPHER BRACKETT, Superintendent, Strafford County
Department of Corrections,
Respondent.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Landya B. McCafferty, U.S. District Judge]
Before
Lynch, Lipez, and Kayatta,
Circuit Judges.
Catherine M. Reno, Trial Attorney, with whom Ethan P. Davis,
Acting Assistant Attorney General, Civil Division, Scott G.
Stewart, Deputy Assistant Attorney General, William C. Peachey,
Director, Office of Immigration Litigation, District Court
Section, Carlton F. Sheffield, Senior Litigation Counsel, and Ari
Nazarov, Trial Attorney, were on brief, for appellant.
Bryanna K. Devonshire, with whom Courtney H.G. Herz, Sheehan
Phinney Bass & Green, PA, Gilles Bissonnette, Henry Klementowicz,
SangYeob Kim, and American Civil Liberties Union of New Hampshire,
were on brief, for appellee.
August 19, 2021
KAYATTA, Circuit Judge. Ana Ruth Hernandez-Lara
("Hernandez"), a thirty-four-year-old native and citizen of El
Salvador, entered the United States in 2013 without being admitted
or paroled. An immigration officer arrested Hernandez in September
2018, and the government detained her at the Strafford County
Department of Corrections in Dover, New Hampshire ("Strafford
County Jail") pending a determination of her removability.
Approximately one month later, Hernandez was denied bond at a
hearing before an immigration judge (IJ) in which the burden was
placed on Hernandez to prove that she was neither a danger to the
community nor a flight risk.
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
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of the district court, arguing that the procedures employed at
Hernandez's original bond hearing comported with due process and,
consequently, that the district court's order shifting the burden
of proof was error. Although we agree that the government need
not prove a detainee's flight risk by clear and convincing
evidence, we otherwise affirm the order of the district court.
Our reasoning follows.
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."
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Hernandez immediately fled to the United States and ultimately
established residency in Portland, Maine, where she worked at a
recycling plant and was engaged to be married.
Hernandez was taken into custody by an immigration
officer on September 20, 2018, and detained pursuant to 8 U.S.C.
§ 1226(a), which provides for discretionary detention of
noncitizens during the pendency of removal proceedings.1 On
October 18, 2018, the IJ held a bond hearing at which, consistent
with immigration regulations, the burden of proof was placed on
Hernandez to prove she was neither a danger to the community nor
a flight risk. See Matter of Guerra, 24 I. & N. Dec. 37, 40
(B.I.A. 2006). Hernandez presented evidence that she had no
criminal record or history of arrest in either El Salvador or the
United States. She also offered evidence of her good moral
character and her community and family ties to Portland. Both her
parents and two of her three siblings reside in the United States.
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
1 8 U.S.C. § 1226(a) provides that "[o]n a warrant issued by
the Attorney General, an alien may be arrested and detained pending
a decision on whether the alien is to be removed from the United
States. Except as provided in subsection (c) and pending such
decision, the Attorney General . . . (1) may continue to detain
the arrested alien; and (2) may release the alien on . . . bond of
at least $1,500 . . . or conditional parole."
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El Salvador through the International Criminal Police Organization
("INTERPOL"). The notice identifies Hernandez, describes the
activities of Street Gang 18 (much as Hernandez described them),
and simply states that Hernandez is subject to an arrest warrant
in El Salvador under El Salvadoran "Article 13 of the Special Law
Against Acts of Terrorism."
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.
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The IJ indicated that it was not clear whether
Hernandez's alleged involvement in the organization was due to "an
inter-rival thing or [if] she was an innocent member or somehow
wrongly identified." Nonetheless, he found that there was not
"sufficient evidence explaining why these allegations are being
brought against her." Stating that "it is [Hernandez's] burden of
proof to show by clear and convincing evidence she is not a
danger," the IJ found, "based on this Red Notice, [that] she has
failed to meet that burden." Consequently, he denied her request
for bond. Hernandez remained detained as she pursued claims for
asylum, withholding of removal, and relief under the Convention
Against Torture ("CAT").
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
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would bear the burden of proving by clear and convincing evidence
that she was dangerous or a flight risk.
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.
2The district court did not reach Hernandez's prolonged
detention argument, id. at *7 n.4, which we likewise do not
address.
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The IJ granted Hernandez's request for bond, setting it
at $7,500. In explaining his decision, the IJ stressed the shift
of burden:
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
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appeal from the district court's grant of Hernandez's habeas
petition.
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. 8 U.S.C. § 1226(c). See generally Demore v.
Kim, 538 U.S. 510 (2003). The government does not claim that
Hernandez has committed such an offense. In her case,
section 1226(a) -- the discretionary detention provision --
controls. Under that section, the government "may release" a
detained noncitizen on "bond . . . or conditional parole." Id.§ 1226(a).
An Immigration and Customs Enforcement ("ICE") officer
makes the initial detention determination for noncitizens subject
to detention under section 1226(a). See 8 C.F.R. § 236.1(c)(8)
(2020). If the officer opts for continued detention, the
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noncitizen can seek review of that decision at a bond hearing
before an IJ. Id. § 236.1(d)(1). An IJ's decision to continue
detaining a noncitizen may be further appealed to the BIA. Id.
§ 236.1(d)(3).
Section 1226(a) is silent as to what burden of proof
applies in bond hearings and who bears that burden. See 8 U.S.C.
§ 1226(a). For many decades, the BIA interpreted that silence as
creating a presumption in favor of liberty pending removal
proceedings. See Matter of Patel, 15 I. & N. Dec. 666, 666 (B.I.A.
1976) ("An alien generally is not and should not be detained or
required to post bond except on a finding that he is a threat to
the national security or that he is a poor bail risk." (citations
omitted)).
In 1996 Congress enacted the Illegal Immigration Reform
and Immigrant Responsibility Act ("IIRIRA"). Omnibus Consolidated
Appropriations Act, Pub. L. No. 104-208, 110 Stat. 3009 (1996).
IIRIRA adopted what is now the current version of the mandatory
detention requirements of section 1226(c). IIRIRA did not alter
the discretionary regime of section 1226(a) except by increasing
the minimum bond amount from $500 to $1,500.
Nevertheless, following the enactment of IIRIRA, the
Immigration and Naturalization Service (INS) adopted new
regulations establishing a presumption of detention in the initial
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custody determination by the arresting officer. See 8 C.F.R.
§ 236.1(c)(2)-(8). Under those regulations, a noncitizen seeking
release bears the burden of "demonstrat[ing] to the satisfaction
of the officer that such release would not pose a danger to
property or persons, and that the alien is likely to appear for
any future proceeding." Id. § 236.1(c)(8). Although that
regulation applied only to the custody determination by the
arresting officer, the BIA soon adopted that standard for
section 1226(a) bond hearings before an IJ, reversing its prior
rule. See Matter of Adeniji, 22 I. & N. Dec. 1102, 1112 (B.I.A.
1999); Matter of Guerra, 24 I.& N. Dec. at 38.
Accordingly, under current BIA precedent, a noncitizen
detained under section 1226(a) must demonstrate "to the
satisfaction of the Immigration Judge that he or she merits release
on bond," Matter of Guerra, 24 I. & N. Dec. at 40, "even though
section [1226(a)] does not explicitly contain such a requirement."
Matter of Adeniji, 22 I. & N. Dec. at 1113. To do so, the
noncitizen must prove that he or she is neither a danger to the
community nor a flight risk. See, e.g., Matter of R-A-V-P-, 27
I. & N. Dec. 803, 804 (B.I.A. 2020).3 In contrast, the government
3 In deciding whether the noncitizen has met his or her
burden, the IJ may consider "any or all of the following:
(1) whether the alien has a fixed address in the United States;
(2) the alien's length of residence in the United States; (3) the
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"need not show anything to justify incarceration for the pendency
of removal proceedings, no matter the length of those proceedings."
Velasco Lopez v. Decker, 978 F.3d 842, 849 (2d Cir. 2020).
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, section 1226(a) does not require "periodic bond
hearings every six months in which the Attorney General must prove
by clear and convincing evidence that the alien's continued
detention is necessary." 138 S. Ct. 830, 847-48 (2018). The Court
left for another day, however, the constitutional question now
before us: Whether the Due Process clause of the Fifth Amendment
entitles a noncitizen detained pursuant to section 1226(a) to a
bond hearing at which the government bears the burden of proving
by clear and convincing evidence that the noncitizen is dangerous
or a flight risk. See id. at 851.
alien's family ties in the United States, and whether they may
entitle the alien to reside permanently in the United States in
the future; (4) the alien's employment history; (5) the alien's
record of appearance in court; (6) the alien's criminal record,
including the extensiveness of criminal activity, the recency of
such activity, and the seriousness of the offenses; (7) the alien's
history of immigration violations; (8) any attempts by the alien
to flee prosecution or otherwise escape from authorities; and (9)
the alien's manner of entry to the United States." Matter of
Guerra, 24 I. & N. Dec. at 40.
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Our inquiry is guided by the three-part balancing test
articulated in Mathews v. Eldridge. See 424 U.S. 319, 335 (1976);
see also Velasco Lopez, 978 F.3d at 851 (analyzing procedural due
process challenge to prolonged detention of noncitizen held
pursuant to section 1226(a) using Mathews test); Addington v.
Texas, 441 U.S. 418, 425 (1979) (analyzing "what standard should
govern in a civil commitment proceeding" by "assess[ing] both the
extent of the individual's interest in not being involuntarily
confined indefinitely and the state's interest in committing the
emotionally disturbed under a particular standard of proof"
(citing Mathews, 424 U.S. at 335)). The Mathews factors
are: (1) "the private interest that will be affected by the
official action"; (2) "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
(3) "the Government's interest, including the function involved
and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail." 424 U.S. at 335.
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.
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A.
"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
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still be incarcerated more than two years after the jailor first
locked the door behind her. There is no question that Hernandez
suffered a substantial deprivation of liberty.
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").
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The government also argues that Hernandez's liberty
interest should be discounted because she is "not simply asserting
a right to be at liberty, but rather, a right to be at liberty in
the United States, where she has never held lawful status"
(emphasis in original). But as the Supreme Court explained in
response to this same type of argument in Zadvydas, "the
choice . . . is not between imprisonment and the alien 'living at
large'" in this country but "between imprisonment and supervision
under release conditions that may not be violated." 533 U.S. at
696; see 8 U.S.C. § 1226(a)(2)(A) (providing that the Attorney
General may release a noncitizen on "bond of at least $1,500 with
security approved by, and containing conditions prescribed by, the
Attorney General" (emphasis added)).
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.
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Deportation is a "'drastic measure,' often amounting to lifelong
'banishment or exile.'" Sessions v. Dimaya, 138 S. Ct. 1204, 1213
(2018) (quoting Jordan v. De George, 341 U.S. 223, 231 (1951));
see id. ("[D]eportation is 'a particularly severe penalty,' which
may be of greater concern to a convicted alien than 'any potential
jail sentence.' (quoting Jae Lee v. United States, 137 S. Ct. 1958,
1968 (2017))); Bridges v. Wixon, 326 U.S. 135, 147 (1945)
("[D]eportation may result in the loss 'of all that makes life
worth living.'" (quoting Ng Fung Ho v. White, 259 U.S. 276, 284
(1922))). The consequences of deportation are potentially most
severe for meritorious asylum seekers, for whom one might fairly
say that the escape from detention offered by the government could
be death. Accordingly, like the Ninth Circuit, "[w]e are not
persuaded that a lower standard of proof is justified by putting
people . . . to the choice of remaining in detention, potentially
for years, or leaving the country and abandoning their challenges
to removability even though they may have been improperly deemed
removable." Singh v. Holder, 638 F.3d 1196, 1204 (9th Cir. 2011).
We recognize that removal proceedings have an end point
and that the liberty interest of a noncitizen detained under
section 1226(a) may therefore be slightly less weighty than that
of individuals facing indefinite and prolonged detention. But
only slightly less: The exact length of detention under
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section 1226(a) is impossible to predict and can be quite lengthy,
as Hernandez's case illustrates well. The ten months Hernandez
was incarcerated, not to mention the two-plus years, and counting,
during which Hernandez would have been detained but for the relief
ordered by the district court, significantly exceeds the "very
limited time of the detention at stake" in Demore, which was found
to "last[] roughly a month and a half in the vast majority of
cases . . . and about five months in the minority of cases in which
the [non-citizen] chooses to appeal." 538 U.S. at 530; see id. at
513, 526, 529 n.12 (emphasizing the "brief" and " very limited"
period of detention). Moreover, "[d]etention under § 1226(a) is
frequently prolonged because it continues until all proceedings
and appeals are concluded . . . even where an individual has
prevailed and the Government appeals." Velasco Lopez, 978 F.3d at
852. Unsurprisingly, Hernandez is far from an outlier. See
Pereira Brito v. Barr, 415 F. Supp. 3d 258, 264-65 (finding that
between November 1, 2018 and May 7, 2019, among section 1226(a)
detainees subject to the jurisdiction of the Boston and Hartford
Immigration Courts, one in four was incarcerated for two years or
longer).4
4Given our holdings, infra, we need not and do not reach
Hernandez's alternative argument that once her detention exceeded
six months she became entitled to a new bond hearing at which the
government bears the burden of proof. Nonetheless, we find the
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Accordingly, we find that the first Mathews factor (the
private interest at stake) weighs heavily in Hernandez's favor.
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 8
U.S.C. § 1362; Ingrid V. Eagly & Steven Shafer, A National Study
of Access to Counsel in Immigration Court, 164 U. Pa. L. Rev. 1,
16, 32 (2015) (analyzing over 1.2 million deportation cases decided
between 2007 and 2012 and finding that 37% of noncitizens, and
only 14% of detained noncitizens, were represented by counsel);
Emily Ryo, Detained: A Study of Immigration Bond Hearings, 50 Law
& Soc'y Rev. 117, 119 (2016) (finding that "the odds of being
granted bond are more than 3.5 times higher for detainees
represented by attorneys than those who appeared pro se").
potential length of detention under section 1226(a) relevant to
the weight of the liberty interest at stake.
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Second, detained individuals will likely experience
difficulty in gathering evidence on their own behalf. See
Moncrieffe v. Holder, 569 U.S. 184, 201 (2013) (noting detained
noncitizens "have little ability to collect evidence"); Hernandez
Lara, 962 F.3d at 55 ("Detainees' access to phone calls and visits
is generally limited . . . ."); Velasco Lopez, 978 F.3d at 852-53
(government refused to produce detained noncitizen's DACA records
or bring him to a criminal hearing so charges against him could be
dismissed).
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
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concern. See Elkins v. United States, 364 U.S. 206, 218 (1960)
("[A]s a practical matter it is never easy to prove a negative.").
For all of these reasons, a detainee often starts out behind the
eight ball in a bond proceeding, and the opportunities for
prejudicial error abound.
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
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access. See Velasco Lopez, 978 F.3d at 853 (explaining that the
government has access to "numerous databases[,] . . . to
information collected by DHS, DOJ, and the FBI, [and to]
information in the hands of state and local authorities," in
addition to having "broad regulatory authority" to obtain
information it does not have readily available). Here, for
example, it was the government that had access to the Red Notice.
For all these reasons, the government is generally far more able
to meet the burden of proof on the question of danger than a
detained noncitizen like Hernandez.
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.
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The government's response to all of this is to argue
that for two reasons the existing framework provides procedural
protections that "exceed the constitutional minimum." First, the
government points out that the existing procedures "permit an
immigration judge to consider a wide range of factors, and the
alien to present any evidence that may bear on these factors."
But as Hernandez's experience shows, those protections do little
to reduce the risk of error caused by the regulations' burden
allocation. Second, the government notes that detention
determinations are subject to "three levels of independent
review," as the decision is made first by a DHS officer, with
review by an IJ and the option of appeal to the BIA. But because
the burden is always on the noncitizen, the availability of review
does little to change the risk of error inherent in the current
burden allocation. Loaded dice rolled three times are still loaded
dice.5
5 The government also suggests in a related case that because
section 1226(a) allows detention of any noncitizen pending removal
proceedings, the "only true sense" in which a noncitizen may be
"erroneously deprived" of liberty under section 1226(a) is "if
that individual should not be in removal proceedings at all." But
even under the agency's current regulations, there is no suggestion
that the government could detain a noncitizen who has shown he is
not a danger or flight risk. More fundamentally, any detention
must "bear[] [a] reasonable relation to [its] purpose," Zadvydas,
533 U.S. at 690, and other than guarding against danger or flight
risk, the government offers no conceivable purpose served by
detention.
- 24 -
C.
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
- 25 -
pending the removal of persons illegally in the country"). In
considering that interest, we must "weigh heavily" the fact 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). What is at stake,
however, is not the power of the government to detain noncitizens
who may cause harm or flee during removal proceedings, but rather
who should bear the burden of proving noncitizens pose a danger or
a flight risk.
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
- 26 -
makes in that regard is that noncitizens are in a better position
to present evidence as to flight risk and that obtaining records
from state and local authorities consumes government resources.
But as a practical matter, the government already has a strong
incentive to obtain criminal records even under existing bond
procedures; we doubt very much that shifting the burden will cause
the government to expend more than minimal additional resources
obtaining such records. In fact, limiting the use of detention to
only those noncitizens who are dangerous or a flight risk may save
the government, and therefore the public, from expending
substantial resources on needless detention. See Velasco Lopez,
978 F.3d. at 854 n.11 ("Detention [of noncitizens] costs taxpayers
approximately $134 per person, per day, according to ICE's
estimates." (citing Dep't of Homeland Sec., U.S. Immigr. & Customs
Enf't Budget Overview (2018) at 14)).
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
- 27 -
groups. The needless detention of those individuals thus
"separates families and removes from the community breadwinners,
caregivers, parents, siblings and employees." See Id. at 855.
Those ruptures in the fabric of communal life impact society in
intangible ways that are difficult to calculate in dollars and
cents. Even so, as twenty states report in an amicus brief to
this court, the financial costs imposed by such widespread communal
disruption are severe: "[States'] revenues drop because of reduced
economic contributions and tax payments by detained immigrants,
and their expenses rise because of increased social welfare
payments in response to the harms caused by unnecessary detention."
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, 8 U.S.C. § 1226(e), the government next argues that the
procedures sought by Hernandez are "contrary to Congress's intent
that such matters be left to the Attorney General's unreviewable
discretion." See 8 U.S.C. § 1226(e) ("The Attorney General's
discretionary judgment regarding the application of this section
shall not be subject to review. No court may set aside any action
- 28 -
or decision by the Attorney General under this section regarding
the detention or release of any alien or the grant, revocation, or
denial of bond or parole."). To the extent the government is
arguing that section 1226(e) deprives the district court or this
court of jurisdiction, that claim fails: Hernandez does not
challenge the IJ's ultimate exercise of discretion, but rather
"the extent of the Government's detention authority under the
'statutory framework' as a whole." Jennings, 138 S. Ct. at 841.6
Moreover, though our decision cabins the discretion granted by
section 1226(a) through the constitutional restraints applicable
to all government action, see Zadvydas, 533 U.S. at 695 (explaining
that, despite Congress's "'plenary power' to create immigration
law, . . . Executive and Legislative Branch decisionmaking in that
area . . . is subject to important constitutional limitations"),
within those limits the government maintains discretion in each
case to grant or deny bond.
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.
6 For similar reasons, the Court's statement in its pre-
Mathews decision of Carlson v. Landon, 342 U.S. 524 (1952), that
Congress intended the "Attorney General's exercise of discretion"
regarding the detention of Communists to be "presumptively correct
and unassailable except for abuse," is inapposite. 342 U.S. at
540.
- 29 -
139 S. Ct. 954, 966 (2019). But in context, it is clear the Court
was merely contrasting section 1226(a) with section 1226(c), which
mandates detention of certain 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 8 U.S.C.
§ 1229a(c)(2), (c)(4)(A). This superficially appealing logic is
flawed because the success or failure of a removal defense is
outcome determinative in the removal proceeding, yet it serves as
only one of several factors potentially relevant to gauging whether
a person is a flight risk pending the removal decision. Moreover,
any assessment of a removal defense at the bond hearing -- a
preliminary stage in the removal proceedings at which point the
noncitizen likely lacks evidence relevant to his or her defense -
- is necessarily tentative. And nothing in our ruling precludes
an IJ from considering the applicable burden when assessing the
strength of a removal defense as a factor in evaluating flight
risk.7
7 The government's argument also ignores that in the case of
a noncitizen who was properly admitted, the government bears the
- 30 -
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
burden of proving by clear and convincing evidence that he or she
is deportable. See id. § 1229a(c)(3)(A); Woodby v. Immigr. &
Naturalization Serv., 385 U.S. 276, 277 (1966).
- 31 -
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
- 32 -
categorical, rather than individualized, assessment that a valid
immigration purpose warranted interim custody" (emphasis in
original). See Demore, 538 U.S. at 531; Carlson v. Landon, 342
U.S. 524, 538 (1952); Reno v. Flores, 507 U.S. 292, 306 (1993).
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; 8 U.S.C.
§ 1226(c); but see 538 U.S. at 532-33 (Kennedy, J., concurring)
("Were there to be an unreasonable delay by the [government] in
pursuing and completing deportation proceedings, it could become
necessary then to inquire whether the detention is not to
facilitate deportation, or to protect against risk of flight or
dangerousness, but to incarcerate for other reasons."). The
government contends that because it may detain a noncitizen without
any bond hearing under section 1226(c), it follows that the bond
hearing Hernandez received under section 1226(a), and the
administrative review to which she was entitled, satisfies due
process.
In upholding the constitutionality of section 1226(c)'s
mandatory detention procedure in Demore, however, the Court
- 33 -
explained that that section specifically applies to a class of
noncitizens who had already been convicted (beyond a reasonable
doubt) of committing certain serious crimes. As to these "criminal
aliens," "Congress had before it evidence suggesting that
permitting [their] discretionary release . . . pending their
removal hearings would lead to large numbers . . . skipping their
hearings and remaining at large in the United States unlawfully."
538 U.S. at 528; see id. at 518-21 (describing studies that
Congress considered showing high recidivism rates and high rates
of failure to appear for removal hearings among "criminal aliens").
The Court relied on those findings in holding that section 1226(c)
comports with due process, stating that "[t]he evidence Congress
had before it certainly supports the approach it selected." Id.
at 528.
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
- 34 -
of their deportation proceedings." H.R. Rep. 104-469, pt. 1, at
123. As noted above, however, IIRIRA did not change
section 1226(a) except by increasing the minimum bond amount from
$500 to $1,500. In other words, even as Congress limited bond
opportunities for noncitizens covered by section 1226(c), it chose
to maintain section 1226(a)'s discretionary bond provision. And
at the time Congress chose to do so, the BIA had long interpreted
section 1226(a) as placing the burden of proof in bond hearings on
the government. See Matter of Patel, 15 I. & N. Dec. 666 (B.I.A.
1976). So one cannot find in IIRIRA any support at all for the
BIA's subsequent reversal of the burden that Congress left
undisturbed.
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
- 35 -
United States . . . present[s] a clear and present danger to the
security of the United States," id. at 535 n.21 (quoting 50 U.S.C.
§ 781(15)). The Court explained that because
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.
Id. at 541.
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
- 36 -
his determination" and "he must justify his refusal of bail." Id.
at 543.
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
- 37 -
for automatic review by an immigration judge of the initial
deportability and custody determinations." Id. at 308 (emphasis
in original). Moreover, the hearings in Flores were governed by
Matter of Patel, under which the government bore the burden of
proving danger and flight risk. Id. at 295.
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
- 38 -
an immigration detention case, cites to Foucha and Salerno.8 See
Zadvydas, 533 U.S. at 690; see also Demore, 538 U.S. at 553(Souter, J., concurring in part and dissenting in part) ("Nowhere
[in Zadvydas] did we suggest that the 'constitutionally protected
liberty interest' in avoiding physical confinement, even for
aliens already ordered removed, was conceptually different from
the liberty interest of citizens considered in Jackson, Salerno,
Foucha, and Hendricks. On the contrary, we cited those cases and
expressly adopted their reasoning, even as applied to aliens whose
right to remain in the United States had already been declared
forfeited.").
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
8 Although the government attempts to distinguish Zadvydas
on its facts, the differences noted by the government do not negate
that Zadvydas found Foucha and Addington instructive as to due
process analysis in the context of immigration detention.
- 39 -
of noncitizens subject to a final removal order -- to "contain an
implicit 'reasonable time' limitation." Id. at 682. In order to
operationalize that limitation, the Court decided that after six
months of detention, "once the alien provides good reason to
believe that there is no significant likelihood of removal in the
reasonably foreseeable future, the Government must respond with
evidence sufficient to rebut that showing." Id. at 701. The
government now argues that because the Court in Zadvydas put the
burden in the first instance on the noncitizen seeking release, it
implicitly held that placing the burden of proof on noncitizens
seeking release in other contexts cannot violate due process.
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
- 40 -
Judge that he or she" is neither dangerous nor a flight risk,
Matter of Guerra, 24 I. & N. Dec. at 40. Indeed, Hernandez's case
amply demonstrates the difference. Given her communal ties and
lack of criminal record, it is hard to imagine she did not provide
"good reason to believe" she was not dangerous or a flight risk.
Yet under current BIA regulations, she could not meet the burden
of showing she was not dangerous, given the Red Notice.
Additionally, as the Government notes, due process "is flexible
and calls for such procedural protection as the particular
situation demands." Mathew v. Eldridge, 424 U.S. at 334. There
is no indication that the Supreme Court intended Zadvydas's burden
allocation procedures for individuals already subject to a final
order of removal to apply in the context of detention pending a
determination of removability under section 1226(a). Cf. Johnson
v. Guzman Chavez, 141 S. Ct. 2271, 2290 (2021) (contrasting
noncitizens detained prior to having been ordered removed with
those held after having been ordered removed; noting that
noncitizens "who have not been ordered removed are less likely to
abscond because they have a chance of being found admissible, but
[those] who have already been ordered removed are generally
inadmissible").
The government also points to language in the Jennings
dissent which it contends approves of the existing procedures under
- 41 -
section 1226(a). See 138 S. Ct. at 882 (Breyer, J., dissenting).
But the issue currently before us was not squarely before the Court
in Jennings. Likewise, the Court was not presented with this issue
in Preap. Regardless, the Court's statement in Preap that a
noncitizen detained under section 1226(a) "may secure his release
if he can convince the officer or immigration judge that he poses
no flight risk and no danger to the community," 139 S. Ct. at 960,
was merely a description of the agency's regulations.
The government similarly contends that two district
court decisions in our circuit approved of the procedures governing
section 1226(a) bond proceedings "as a remedy" for those detained
under section 1226(c). See Reid v. Donelan, 22 F. Supp. 3d 84, 93
(D. Mass. 2014), vacated and remanded on other grounds, 819 F.3d
486 (1st Cir. 2016), opinion withdrawn, No. 14-1270, 2018 WL
4000993 (1st Cir. May 11, 2018); Gordon v. Johnson, 300 F.R.D. 31,
41 (D. Mass. 2014), vacated sub nom. Gordon v. Lynch, 842 F.3d 66(1st Cir. 2016) But those decisions were both based on the idea
that "individuals who committed a § 1226(c) predicate offense
should not receive more protections than § 1226(a) detainees."
Reid, 22 F. Supp. 3d at 92 (emphasis in original); see Gordon, 300
F.R.D. at 42 (noting additionally that the court "has its concerns
about the procedures used to effectuate the requirements of
§ 1226(a)"). The government's reliance on Castaneda v. Souza, 810
- 42 -
F.3d 15 (1st Cir. 2015) (en banc) is likewise unavailing. There
is no indication that the petitioner, who was detained under
section 1226(c), sought bond procedures beyond those provided in
section 1226(a); rather, she challenged ICE's determination that
she was subject to mandatory detention under section 1226(c).
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
- 43 -
dangerousness or flight risk in order to continue detaining a
noncitizen under section 1226(a).
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.,
- 44 -
Addington, 441 U.S. at 433 (involuntary civil commitment to mental
hospital); Foucha, 504 U.S. at 86 (confinement of insanity
acquittees). Other significant liberty interests are similarly
protected: The government must satisfy the clear and convincing
standard in order to terminate parental rights, see Santosky, 455
U.S. at 748, deport a noncitizen, see Woodby v. Immigr. &
Naturalization Serv., 385 U.S. 276, 277 (1966), or denaturalize an
individual, see Chaunt v. United States, 364 U.S. 350, 353 (1960).
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,
9The government's argument that the Supreme Court has not
required the government to meet a clear and convincing standard to
justify the detention of noncitizens is unavailing. In short,
none of the cases cited by the government presented the question
of what standard the government would have to meet to justify the
detention of a noncitizen. Those cases therefore offer limited
guidance on that issue, let alone binding precedent.
- 45 -
place of residence, length of time in the United States, and record
of employment. And because the burden is on the government, the
noncitizen need not prove a negative (by showing, for example,
that he or she has not fled prosecution or failed to appear at
court) but is instead faced with the more straightforward task of
marshalling evidence readily available to her so as to rebut the
government's evidence. Given these considerations, the probable
value of a heightened standard of proof is thus less apparent when
it comes to flight risk.
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, 18 U.S.C. § 3142(f), while
- 46 -
section 1226(a) detainees do not, 8 U.S.C. § 1362. But those
differences cut both ways: While they suggest the section 1226(a)
detainee may have fewer resources with which to marshal evidence
and argument, they also suggest that the government traditionally
encounters more hurdles in criminal rather than civil proceedings.
Cf. Immigr.& Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032,
1038 (1984) (noting the civil nature of deportation proceedings
and explaining that "various protections that apply in the context
of a criminal trial do not apply in a deportation hearing"). And
although the Speedy Trial Act, 18 U.S.C. § 3161, limits the
duration of pretrial detention, the average criminal defendant can
expect to be detained for a significant period of time. See
Amaryllis Austin, The Presumption for Detention Statute's
Relationship to Release Rates, 81 Fed. Prob. J. 52, 53 (2017)
(Noting that, as of 2016, "the average period of detention for a
pretrial defendant had reached 255 days" and in "several districts
[the] average [was] over 400 days"). All in all, as to the
government's burden to prove flight risk in a section 1226(a) bond
hearing, we conclude that the preponderance standard balances the
competing interests as fairly as it does in a criminal bail
hearing.
In sum, we hold that, in order to continue detaining
Hernandez under section 1226(a), due process requires the
- 47 -
government to either (1) prove by clear and convincing evidence
that she poses a danger to the community or (2) prove by a
preponderance of the evidence that she poses a flight risk.
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).
- 48 -
V.
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
- 49 -
a threat to the national security or that he is a poor bail risk."
(citations omitted)).10
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
10 The dissent asserts that the BIA has not addressed the
quantum of proof. Not so: As explained above, the BIA has required
a noncitizen to prove "to the satisfaction of the Immigration Judge
that he or she merits release on bond." Matter of Guerra, 24
I. & N. Dec. at 40.
11 For this reason, the dissent's charge that we have ordered
relief that is "more burdensome" than "necessary to provide
complete relief" falls flat. Madsen v. Women's Health Ctr., Inc.,
512 U.S. 753, 765 (1994) (quoting Califano v. Yamasaki, 442 U.S.
682, 702 (1979)). Whether or not the relief goes beyond that
necessary to decide the APA claim, the crucial point is that it is
no way more burdensome than necessary to accord "complete relief"
as to Hernandez's constitutional claim. Id.- 50 -
hearing not just on flight risk, but on dangerousness as well. In
short, what the dissent proposes is not constitutional avoidance,
which entails finding an alternative basis for providing the relief
sought under the constitutional claim. See Marasco & Nesselbush,
LLP v. Collins, No. 20-1397, 2021 WL 3012705, at *18 (1st Cir.
July 16, 2021) (declining to address due process claim under
doctrine of constitutional avoidance because "the relief available
under the [statutory ground] adequately addresse[d] [the
plaintiff's] remedial requests" and so "a non-constitutional
disposition [was] possible"). Rather, the dissent proposes that
we simply shirk our duty to decide a properly raised claim upon
which a substantial portion of the request for relief hinges.
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
- 51 -
(explaining that, despite Congress's "'plenary power' to create
immigration law, . . . Executive and Legislative Branch
decisionmaking in that area . . . is subject to important
constitutional limitations"; construing immigration detention
statute to avoid unconstitutional detention); Hamdi v. Rumsfeld,
542 U.S. 507, 536-37 (2004) (holding that even "in the context of
military action, it would turn our system of checks and balances
on its head to suggest that a citizen could not make his way to
court with a challenge to the factual basis for his detention by
his Government, simply because the Executive opposes making
available such a challenge"); Foucha, 504 U.S. at 81-82 (striking
down Louisiana statute under which "the State need prove nothing
to justify continued detention" of insanity acquittees).
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
- 52 -
fulfilling the vision of the "Framers of the Constitution that,
within our political scheme, the separation of governmental powers
into three coordinate Branches is essential to the preservation of
liberty." Mistretta v. United States, 488 U.S. 361, 380 (1989).
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
- 53 -
that "prejudice against discrete and insular minorities may be a
special condition, which tends seriously to curtail the operation
of those political processes ordinarily to be relied upon to
protect minorities").
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 section 1226. All
that is required is that those rules comport with the minimum
standards of the constitution. Cf. Addington, 441 U.S. at 431("As the substantive standards for civil commitment may vary from
state to state, procedures must be allowed to vary so long as they
meet the constitutional minimum."). The dissent speculates that
complying with those minimum standards will impose additional
burdens on an overtaxed immigration system. But as we have
explained, avoiding needless detention may well reduce the burden
of enforcing immigration laws, particularly since, as the dissent
concedes, the vast majority of noncitizens released from detention
(like Hernandez) appear at their removal hearings.
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.
- 54 -
First, and most simply, Hernandez claims that the
current BIA standard of proof as applied in her case caused her to
be unconstitutionally detained. And the IJ found the standard was
indeed pivotal. So whatever one might say about facial challenges
generally poses no bar to granting Hernandez relief.
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
- 55 -
challenges in the detention context on a categorical basis (e.g.,
all criminal defendants or insanity acquittees). See, e.g., In
re Winship, 397 U.S. 358, 364 (1970) (holding due process requires
that all criminal defendants must be convicted by proof beyond a
reasonable doubt); Hamdi, 542 U.S. at 533-35 (setting forth the
contours of the procedures required under due process for all
"citizen-detainee[s] seeking to challenge [their] classification
as an enemy combatant"); Addington, 441 U.S. at 433 (holding that
"the individual's interest in the outcome of a civil commitment
proceeding is of such weight and gravity that due process requires
the state to justify confinement by proof more substantial than a
mere preponderance of the evidence"); Foucha, 504 U.S. at 86(holding broadly that insanity acquittees may not be detained
unless the government can show they are dangerous by clear and
convincing evidence).
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,
12Similarly, in a variety of other contexts, the Court has
announced due process rules for entire categories of claimants,
despite variations within those classes. See, e.g., Goldberg v.
Kelly, 397 U.S. 254, 260, 270 (holding that all "welfare
recipients" must be afforded an "evidentiary hearing before the
termination of benefits" at which they must be "given an
- 56 -
441 U.S. at 425 (noting that "even if the particular standard-of-
proof catchwords do not always make a great difference in a
particular case, adopting a 'standard of proof is more than an
empty semantic exercise'" because the standard of proof "reflects
the value society places on individual liberty" (quoting Tippett,
436 F.2d, at 1166)). So too, here: The category consists of
persons detained under section 1226(a) (i.e., those who have not
been convicted already of the crimes calling for detention under
section 1226(c)); and the fact that any given section 1226(a)
detainee may have a more or less compelling case for release will
bear on the outcome of the hearing but does not alter the minimum
procedures required by due process in a bond hearing.
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
opportunity to confront and cross-examine" witnesses relied upon
by the government); Vitek v. Jones (Setting forth minimal due
process requirements for all "prisoners facing involuntary
transfer to a mental hospital"; holding due process requires all
such prisoners receive "qualified and independent assistance"
regardless of the individual's mental illness or other
circumstances); Woodby, 385 U.S. at 285-86 (broadly holding that
the government must prove grounds for deportation "by clear,
unequivocal, and convincing evidence"); Chaunt, 364 U.S. at 353(broadly holding that the government must prove grounds for
denaturalization by "clear, unequivocal, and convincing
evidence").
- 57 -
do not slice and dice claimants (such as welfare recipients) into
some unknown number of unspecified subcategories.
We are far from alone in applying procedural due process
protections to well-defined categories of noncitizens (e.g.,
section 1226(a) detainees), rather than developing bespoke
procedures that would vary in their application from case to case
or subcategory to subcategory depending on the very factor that
the procedures are designed to assess. See, e.g., Hernandez, 872
F.3d at 990-91 (holding that IJs must consider a noncitizen's
financial circumstances and alternative conditions of release
during section 1226(a) bond hearings); Singh, 638 F.3d at 1203-04
(holding that "the government must prove by clear and convincing
evidence that an alien is a flight risk or a danger to the community
to justify denial of bond at a Casas hearing"); cf. Zadvydas, 533
U.S. at 701 (holding that once a noncitizen detained following a
final removal order has been held for six months, the noncitizen
may challenge his continued detention).
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
- 58 -
inefficiency would be exacerbated because each case begins in an
administrative proceeding, while habeas claims are heard in the
district courts.
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 -
- 59 -
LYNCH, Circuit Judge, dissenting. With respect, I
cannot join the majority opinion, which is at odds with binding
Supreme Court case law and creates circuit splits. First, the
majority gives a backhand to the basic principle of constitutional
avoidance and violates basic separation of powers principles.
Second, if that were not enough, the majority's due process
analysis is simply wrong and contrary to controlling law.
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
- 60 -
facing removal13 ("noncitizens" or "detainees") in its 1999
decision In re Adeniji, 22 I. & N. Dec. 1102, 1113 (B.I.A. 1999)
(en banc), which still controls today, the asserted violations of
the Administrative Procedure Act ("APA") must be addressed first
and, in my view, entitle the plaintiffs to relief, albeit different
relief. That should be the start and end of our inquiry.
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
13 While most detainees are undocumented noncitizens, a
smaller number are lawfully present persons who are subject to
removal because, for example, they have committed certain crimes,
have engaged in fraud, or threaten national security. 8 U.S.C.
§ 1227.
- 61 -
because Adeniji was in violation of the APA.14 I would resolve
these cases on APA grounds. By its choice as to the order of the
cases it addresses, the majority has attempted to avoid discussion
of the key argument underlying all of this litigation. The
analysis should have started with Pereira-Brito and Doe under the
principles of constitutional avoidance.
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).
14The Department of Justice has not been asked to directly
respond to this argument in this court, as it would be if the
constitutionality of a statute were at stake. Accordingly, I rely
on the briefs it filed below.
- 62 -
Were the Court to resolve Pereira-Brito and Doe as I propose,
it would be appropriate to vacate the injunction and judgment and
remand to the district court for further proceedings.
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 8 C.F.R. § 242); Orders to
Show Cause and Warrants of Arrest, 28 Fed. Reg. 8,279, 8,280 (Aug.
13, 1963) (codified at 8 C.F.R. § 242). Instead, the BIA required
the government to prove that a noncitizen in removal proceeding
15Congress later transferred that authority to the Secretary
of Homeland Security. 6 U.S.C. § 251.
- 63 -
should be detained, applying a presumption in favor of liberty
that could be overcome by a showing that he posed a "threat to
national security" or was a "poor bail risk." Matter of Patel, 15
I. & N. Dec. 666, 666 (B.I.A. 1976).
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 8 U.S.C.
§ 1226(c)). Because that change required the government to
increase its detention capacity, Congress provided for a two-year
transition period, during which the Attorney General had some
discretion to release criminal noncitizens. IIRIRA § 303(b)
(codified at note to 8 U.S.C. § 1226).
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
16 The INS's immigration enforcement functions were later
transferred to the Bureau of Immigration and Customs Enforcement
("ICE"). 6 U.S.C. §§ 251, 291(a).
- 64 -
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.
8 C.F.R. § 236.1(c)(8); accord id. § 1236.1(c)(8). In proposing
the rule concerning immigration officials other than immigration
judges ("IJs"), the INS said that, other than changes to the amount
of minimum bond amount, for non-criminal noncitizens "the proposed
rule essentially preserves the status quo for bond determination
by the [INS] and bond redetermination proceedings before
immigration judges." Inspection and Expedited Removal of Aliens;
Detention and Removal of Aliens; Conduct of Removal Proceedings;
Asylum Procedures, 62 Fed. Reg. 444, 450 (Jan. 3, 1997).
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
- 65 -
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 § 1226(a) -- noncitizens
contesting their removability. Second, the INS did not explain
that Congress had to increase the detention budget to fund IIRIRA's
new mandatory detention scheme. See Matter of Garvin-Noble, 21 I.
& N. Dec. 672, 675 (B.I.A. 1997) ("In enacting the Transition
Period Custody Rules, Congress had before it evidence that the
Attorney General did not have sufficient resources to carry out
the mandatory detention requirement recently implemented
. . . ."); see also TVA v. Hill, 437 U.S. 153, 190 (1978) (holding
that budget appropriations cannot alter meaning of statute).
- 66 -
The regulations also provide for IJ review of initial
bond determinations:
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)].
8 C.F.R. § 236.1(d)(1); accord id. § 1236.1(d)(1).
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 [§ 1226(a)] . . . [a noncitizen]
must demonstrate that 'release would not pose a danger to property
or persons.'" Adeniji, 22 I. & N. Dec. at 1113.
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:
- 67 -
[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
- 68 -
administrative leaps. Further, I conclude the present regime is
likely contrary to Congressional intent.
A.
The only reason the BIA offered for its departure from
Patel was that 8 C.F.R. § 236.1(c)(8) compelled its holding. That
interpretation was erroneous.17
The text of 8 C.F.R. § 236.1(c)(8), which Adeniji relies
on, does not apply to immigration judges. It sets bond standards
to be used by "officer[s] authorized to issue a warrant of arrest."
8 C.F.R. § 236.1(c)(8). Those officers include a wide range of
immigration field officers and some other officials, but do not
include IJs. See id. § 287.5(e)(2). On its face, the regulation
governs only arresting officers not IJs. That makes sense as the
17 The BIA is not entitled to deference to its interpretation
of the regulation. The Court does not owe Auer deference to the
BIA's interpretation of another agency's regulation. See Nat'l
Treasury Emps. Union v. Fed. Lab. Rels. Auth., 942 F.3d 1154, 1156
(D.C. Cir. 2019). At most, it owes the BIA "some deference."
Beltrand-Alas v. Holder, 689 F.3d 90, 92 (1st Cir. 2012) (quoting
McKenzie-Francisco v. Holder, 662 F.3d 584, 586 (1st Cir. 2011);
but see Kisor v. Wilkie, 139 S. Ct. 2400, 2417 (2019) (emphasizing
that the "basis for deference ebbs" when the regulation "'fall[s]
within the scope of another agency's authority.'" (alteration in
original) (quoting City of Arlington v. FCC, 569 U.S. 290, 309
(2013) (Breyer, J., concurring in part))). And when, as here, the
text and structure of the regulation precludes the agency's
interpretation, no deference is warranted. See Kisor, 139 S. Ct.
2415. Finally, the government did not argue for deference to the
BIA's regulatory interpretation, and the Court need not consider
deferring unless the government asks us to do so. HollyFrontier
Cheyenne Ref., LLC v. Renewable Fuels Ass'n, 141 S. Ct. 2172, 2180
(2021).
- 69 -
two are in very different positions. Arresting officers have
limited knowledge and should be inclined to err on the side of
caution. IJs in bond hearings have much more knowledge and the
benefit of arguments from both sides. Thus, the text does not
support the BIA's conclusion that it must supply the standard for
bond hearings.
Indeed, the regulation which actually governs bond
proceedings before IJs is different. 8 C.F.R. § 236.1(c)(8) states
that "[a]fter an initial custody determination" under 8 C.F.R.
§ 236.1(c)(8), a detainee may "request amelioration of the
conditions under which he or she may be released." In allowing
IJs to ameliorate -- or improve -– bond conditions, the regulation
necessarily states that IJs may deviate from the standards
governing arresting officers. See ameliorate, The American
Heritage Dictionary of the English Language 59 (3d ed. 1996) ("To
make or become better; to improve."); accord ameliorate, Webster's
New World Dictionary 43 (3d college ed. 1988).
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 [8 U.S.C. § 1226(a)] . . . to
detain the [noncitizen] in custody, release the [noncitizen], and
determine the amount of bond, if any, under which the respondent
may be released." 8 C.F.R. § 236(d)(1) (emphasis added). The
- 70 -
regulation thus delegates the Attorney General's broad discretion
to set bond conditions. And it expressly delegates all of the
Attorney General's authority. Cf. Seila L. LLC v. CFPB, 140 S.
Ct. 2183, 2191 (2020) (holding that the Executive Vesting Clause,
which vests "the Executive Power" confers "all of" the executive
power (emphasis added)). That wholesale delegation contrasts with
the conditional delegation provided to other immigration officials
in 8 C.F.R. § 236.1(c)(8). The BIA recognized that the INS
conferred different authority on IJs in bond hearings than on
arresting officers. Adeniji, 22 I. & N. Dec. at 1112. The BIA's
inconsistent treatment between the regulations governing IJs and
arresting officers wipes away those differences and renders as
mere surplusage the delegation to IJs of all of the Attorney
General's authority. The BIA's reasoning in Adeniji that the
regulation mandates its atextual reading is itself a violation of
the APA.
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 8 C.F.R. § 236.1(c)(8) mandated its outcome. As I have shown,
that is simply not so. The BIA's decision in Adeniji was arbitrary
or capricious, and its continued imposition of the burden of proof
on noncitizens is thus unlawful.
- 71 -
B.
Not only did the BIA misinterpret 8 C.F.R.
§ 236.1(c)(8), but the INS also acted arbitrarily and capriciously
when it adopted the regulation for two additional reasons.
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., 18 U.S.C. § 3142(f)(1) (limiting pretrial
detention to criminal defendants charged with certain offenses),
(e)(2)-(3) (imposing rebuttable presumption of detention only for
certain recidivist defendants or defendants charged with certain
serious offenses). In my view Congress intended to continue the
customary view that detention authorizations must be carefully
limited. See United States v. Salerno, 481 U.S. 739, 755 (1987).
Indeed, Congress embraced that logic in the very statute at issue,
mandating detention for certain criminal noncitizens and allowing
all other detainees the opportunity for bond. 8 U.S.C. § 1226(a),
(c); see Maj. Op. 25. Nothing in the record suggests that the INS
considered the relative risks of different classes of detainees.
There are different classes of such detainees, including, for
example, those with no criminal records, to those with nonserious
- 72 -
misdemeanor offenses, to those who have committed felonies some of
a serious nature, but not aggravated felonies.
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.
Indeed, his lead claim in his petition was about the policy
18
of the sheriff's department not to provide transportation to the
hearings on his criminal charges in the local courts.
- 73 -
The INS should have at least considered whether it was grouping
like and unlike categories of discretionary detainees together
under a blanket rule. Cf. Transactive Corp. v. United States, 91
F.3d 232, 237 (D.C. Cir. 1996) ("[A]n agency action is arbitrary
when the agency offered insufficient reasons for treating similar
situations differently."). Since it did not, the agency's adoption
of the rule was arbitrary or capricious.
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]
- 74 -
had been issued." OIG Report (emphasis added). That distinction
is crucial, as noncitizens who are subject to a final order of
removal pose a materially different flight risk than those who are
still contesting their removability. Compare OIG Report, with
U.S. Gov't Accountability Off., GAO-15-26, Alternatives to
Detention: Improved Data Collection and Analyses Needed to Better
Assess Program Effectiveness 30-31, 31 n.62 (2014),
https://www.gao.gov/assets/gao-15-26.pdf (showing at final
removal hearings 77% appearance rate for all non-detained
noncitizens and 95% appearance rate for noncitizens subject to
enhanced monitoring); see also Maj. Op. 36 (discussing lack of
Congressional findings about dangerousness or flight risk of
noncriminal noncitizens). Indeed, the government recognizes that
distinction: it evaluates detention differently before and after
a final order of removal has been entered. Compare 8 C.F.R.
§ 236.1, Adeniji, 22 I. & N. Dec. at 1113, and Matter of Guerra,
24 I. & N. Dec. 37, 40 (B.I.A. 2006), with 8 C.F.R. §§ 241.3-5 and
ICE, Performance Based Detention Standards, 2.2 Custody
Classification System, (rev. Dec. 2016)
https://www.ice.gov/doclib/detention-standards/2011/2-2.pdf. But
despite that obvious difference, the INS relied only on data about
absconding after entry of a final order of removal. In fact, the
inspector general's report was not at all about noncitizens
- 75 -
detained pending hearings. Rather, it was about noncitizens
ordered removed who disappeared before they could be removed. The
data does not support the INS's decision because it was irrelevant
to a decision about noncitizens contesting removal. And nothing
else in the record justifies the agency's decision.
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 8 C.F.R. § 236.1(c)(8). As adopting the regulation was
contrary to law, the BIA cannot rely on it to justify its departure
from Patel.
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 § 1226(a) bond
proceedings. Jennings held that nothing in § 1226(a) requires
"periodic bond hearings every six months in which the Attorney
- 76 -
General must prove by clear and convincing evidence that the
[noncitizen]'s continued detention is necessary." Id. at 847.
But nor does anything in the statute prohibit the government from
requiring itself to justify detention. The statute creates a range
of possible action, but it does not remove the agency's obligation
to provide a reasoned justification for a change in policy.
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 § 1226(a) to reach its decision in
Adeniji. It expressly recognized that the statute did not allocate
the burden of proof, and then rested its decision on 8 C.F.R. §
236.1(c)(8). Adeniji, 22 I. & N. Dec. at 1113. Chevron does not
apply when an agency's decision does not rest on its interpretation
of a statute. The government is not entitled to deference. See
also supra n.17.
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
- 77 -
in how it exercises that authority. See New England Power
Generators Ass'n, Inc. v. FERC, 881 F.3d 202, 210 (D.C. Cir. 2018).
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. 5
U.S.C. § 706(2)(A). The plaintiffs are entitled to a declaration
of that unlawfulness. See Grace v. Barr, 965 F.3d 883, 907-09
(D.C. Cir. 2020). Beyond such a declaration, the scope of any
injunctive relief should be left to the district court in the first
instance. Thus, I would vacate the injunction and judgment and
remand to the district court for further briefing on scope of the
remedy including as to whether, in light of our holding, the agency
should reinstitute proceedings.
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
- 78 -
and, indeed, inappropriate." Marasco & Nesselbush, 2021 WL
3012705, at *19.
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., U.S.
Const. Art. I § 8, c. 18, Trump v. Hawaii, 138 S. Ct. 2392, 2418–
19 (2018), even more caution is warranted. There is, to be sure,
a role for courts to police constitutionally deficient immigration
procedures. See, e.g., Reno v. Flores, 507 U.S. 292, 306 (1993).
But we must also remember that "[p]olicies pertaining to the entry
of noncitizens and their right to remain here are peculiarly
concerned with the political conduct of government." Galvan v.
Press, 347 U.S. 522, 531 (1954). That must be so because "the
power to expel or exclude [noncitizens] [is] a fundamental
sovereign attribute exercised by the Government's political
departments largely immune from judicial control." Fiallo v. Bell,
430 U.S. 787, 792 (1977) (quoting Shaughnessy v. Mezei, 345 U.S.
206, 210 (1953)). In rushing to constitutional judgment in a field
- 79 -
the Constitution primarily commits to the political branches, the
majority ignores these serious separation-of-powers concerns.
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),
- 80 -
https://www.dhs.gov/sites/default/files/publications/21_0120_enf
orcement-memo_signed.pdf; Final Inadmissibility on Public Charge
Grounds; Implementation of Vacatur, 86 Fed. Reg. 14221 (Mar. 15,
2021) (rescinding public charge rule). If we sent these burden of
proof issues back to the BIA and required the agency to consider
a wider range of circumstances, the agency may well produce a more
nuanced set of bond standards. In short, we have the chance to
maximize politically accountable deliberation and policy making;
instead, the majority has chosen to make policy from the bench.
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
19 At the end of FY 2020, more than 1,250,000 immigration
cases were pending, a 379% increase over the course of the decade.
See Dep't of Justice, Exec. Office for Immigration Review,
Adjudication Statistics: Pending Cases, New Cases, and Total
Completions (April 19, 2021),
https://www.justice.gov/eoir/page/file/1242166/download. That
was true even though IJs in recent years have disposed of cases at
historic volume. Dep't of Justice, Exec. Office for Immigration
Review, New Cases and Total Completions - Historical (April 19,
2021), https://www.justice.gov/eoir/page/file/1139176/download.
The number of bond proceedings has skyrocketed as well. See Dep't
of Justice, Exec. Office for Immigration Review, Statistics
Yearbook FY2018 at 9 (showing 49.3% increase in bond over five
years). As apprehensions of undocumented persons at the southern
border hit record highs, the burden on the immigration system is
only likely to increase. See Dep't Homeland Sec., Customs & Border
Protection, Southwest Land Border Encounters (last accessed Aug.
13, 2021) (revealing that encounters at the southern border in the
first nine months of FY2021 already exceed highest level for past
five full years), https://www.cbp.gov/newsroom/stats/southwest-
- 81 -
and by raising the required quantum of proof to detain a noncitizen
in removal proceedings, the majority imposes additional strains on
overburdened immigration courts and officials.20 In my view, the
majority should have avoided unleashing those serious harms on our
immigration infrastructure.
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
land-border-encounters; N. Miroff, July Was Busiest Month for
Illegal Border Crossings in 21 Years, CBP Data Shows, Wash. Post
(Aug. 12, 2021), https://www.washingtonpost.com/national/record-
numbers-illegal-border-crossings/2021/08/12/e3d305e2-facd-11eb-
b8dd-0e376fba55f2_story.html.
20 The majority "doubt[s] very much that shifting the burden
will cause the government to expend more than minimal additional
resources obtaining . . . records [from state and local
authorities]." Maj. Op. 27. Nothing in the record supports that
claim, and the government disputes it. Moreover, the government's
superior knowledge about the practical implications of
reallocating burdens in immigration bond proceedings reenforces my
conclusion that the political branches should decide such
questions in the first instance.
- 82 -
injury. She is not entitled to the majority's adoption of the
broad rule she proposes. This is a basic tenant of remedial law.
If Hernández-Lara is entitled to any relief, that relief must be
limited only to relief not more burdensome than necessary. In
going beyond that relief, the majority again overreaches.21
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.
Additionally, the BIA should be given the first opportunity
21
to address the quantum of proof issue, which was not raised in
Adeniji. The posture taken in defense of this litigation does not
reflect the considered decision making the APA requires.
- 83 -
"In the exercise of its broad power over naturalization
and immigration, Congress regularly makes rules that would be
unacceptable if applied to citizens." Demore v. Kim, 538 U.S.
510, 521 (2003) (quoting Mathews v. Diaz, 426 U.S. 67, 79–80
(1976)) (quotation marks omitted). Congress and the Executive
have that broad authority because "any policy toward [noncitizens]
is vitally and intricately interwoven with contemporaneous
policies in regard to the conduct of foreign relations, the war
power, and the maintenance of a republican form of government."
Id. at 522 (quoting Diaz, 426 U.S. at 81 n.17). Thus, the Supreme
Court has permitted the government to detain noncitizens on a
categorical basis, while requiring individualized determinations
to detain citizens. Compare Demore, 538 U.S. at 531 (holding that
mandatory detention of noncitizens convicted of a wide variety of
offenses does not violate the Due Process Clause) and Carlson v.
Landon, 342 U.S. 524, 544 (1952) (holding that mandatory detention
of Communist noncitizens in removal proceedings does not violate
the Due Process Clause), with Salerno, 481 U.S. at 750-51(permitting detention of criminal defendants charged with a
"serious crime" upon a showing that the defendant "presents an
identified and articulable threat to an individual or the
community"). If categorical detention of noncitizens without
individualized review is permissible under the Due Process Clause,
- 84 -
it follows that detention of noncitizens under the government's
current regime -- which allows noncitizens to present
individualized evidence and rebut the presumption of detention –-
does not offend the Due Process Clause either.
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
22 In upholding the mandatory detention statute for
noncitizens convicted of certain crimes (8 U.S.C. § 1226(c))
against a due process challenge, the Supreme Court did not apply
Mathews. See Demore, 538 U.S. at 521-31. Thus, it is not clear
that Mathews even governs in this context.
- 85 -
fiscal and administrative burdens that the additional or
substitute procedural requirement would entail" to determine "the
specific dictates of due process").
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
23The majority suggests that its rule will decrease the length
of detentions. Maj. Op. 19. The majority's reasoning must be
that shifting the burden to the government will prove to be too
onerous to detain most noncitizens. This in turn will inevitably
result in more noncitizens returning to their communities, despite
the fact that they are dangerous to those communities or flight
risks.
24 The majority's concern with where Hernández-Lara was
detained –- "alongside criminal inmates at the Strafford County
Jail," Maj. Op. 16 -- is irrelevant to our inquiry here.
- 86 -
introduce evidence to show that they will likely appear at their
removal proceedings and are entitled to administrative and
judicial review of any adverse bond determination. Indeed, the
government is ill-positioned to have information beyond the
criminal record.
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 8 U.S.C. § 1227(a)(2)(A)(iv);
18 U.S.C. § 758. That criminal record would not subject the
noncitizen to mandatory detention. See 8 U.S.C. § 1226(c). But
it would provide powerful evidence of his flight risk. Nothing in
the majority opinion explains why proceedings would be more
accurate under its broad rule, much less why any marginal accuracy
would outweigh the government's strong interests.
"It may be, of course, that in some circumstances
detention of [a noncitizen] would not pass constitutional muster.
- 87 -
But the validity of those detentions must be determined on a case-
by-case basis." Schall, 467 U.S. at 273. The majority's
overreaching conflicts with controlling Supreme Court precedents.
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
- 88 -
administrative burdens in proving the dangerousness or flight risk
of -- veterans of the armed forces than noncitizens who have never
been lawfully admitted. It also knows far more about permanent
residents than those who overstay nonimmigrant visas. And, as the
government has powerfully argued, it knows little about those who
have recently entered the country illegally and been detained.
The government's relative knowledge matters because it directly
affects two of the key procedural due process considerations: risk
of erroneous deprivation and governmental burden. The majority's
analysis collapses those distinctions. In so doing, the majority
both fails to actually apply the Mathews framework it purports to
apply and reaches an overly broad holding.
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." Sup.
Ct. R. 10(c). The Supreme Court should step in to bring our court
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back into compliance with the Supreme Court's carefully considered
precedents. Such an intervention would not be mere error
correction: given the majority's facial holding, its error is not
case specific. It will reverberate in thousands of immigration
bond proceedings.
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.,
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The Law of Judicial Precedent 46 (2016). And the majority's
holding squarely conflicts with it.
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 § 1226(a) procedures as
adequate. Maj. Op. 32. To the contrary, German Santos proves
that the majority has adopted an outlier view. German Santos is
a § 1226(c) mandatory detention case. It holds that a noncitizen
subject to mandatory detention is entitled to "a bond hearing, at
which the [g]overnment must justify his continued detention by
clear and convincing evidence" once "his detention has become
unreasonable." 965 F.3d at 206 (emphasis added). In holding that
the burden of proof should eventually shift to the government once
its interest in continued detention attenuates, German Santos and
similar cases, see, e.g., Velasco Lopez v. Decker, 978 F.3d 842,
855 (2d Cir. 2020), accept that the burden may lie at first with
the noncitizen. The majority's holding -- that the burden must
always lie with the government -- conflicts with those cases.
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.
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V.
I would vacate the injunction and judgment and remand to
the district court for further proceedings consistent with this
opinion. I respectfully dissent.
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