Vijendra K. Singh v. Holder ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIJENDRA KUMAR SINGH, an 
individual,
Petitioner-Appellant,
v.
ERIC H. HOLDER JR., in his official
capacity as Attorney General of
the United States; JANET
NAPOLITANO, in her official No. 10-15715
capacity as Secretary of the
Department of Homeland Security;  D.C. No. 3:09-cv-
03012-JSW
TIMOTHY AITKEN, in his official
capacity as San Francisco Field OPINION
Office Director of US Immigration
and Customs Enforcement,
Detention and Removal; and
DONNY YOUNGBLOOD, in his official
capacity as Sheriff of Kern County
Sheriff’s Department and Lerdo
Detention Facility,
Respondents-Appellees.

Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted
October 4, 2010—Pasadena, California
Filed March 31, 2011
4509
4510 SINGH v. HOLDER
Before: Susan P. Graber, Raymond C. Fisher and
Jay S. Bybee, Circuit Judges.1
Opinion by Judge Fisher
1
Judge Susan P. Graber was drawn to replace Judge Cynthia Holcomb
Hall, now deceased. Judge Graber has read the briefs, reviewed the record
and listened to the tape of oral argument held on October 4, 2010.
4514 SINGH v. HOLDER
COUNSEL
Holly S. Cooper, Kelly Martin and Scott Grzenczyk (argued),
U.C. Davis Immigration Law Clinic, Davis, California, for the
appellant.
Joseph P. Russoniello, United States Attorney, Joann Swan-
son, Chief, Civil Division, Ila C. Deiss, Assistant United
States Attorney, San Francisco, California, and William H.
Orrick, III (argued), U.S. Department of Justice, Washington,
D.C., for the appellee.
SINGH v. HOLDER 4515
Judy Rabinovitz, for amicus curiae ACLU Foundation Immi-
grant’s Rights Project, New York, New York, Ahilan T.
Arulanantham (argued), for amicus curiae ACLU Foundation
of Southern California, Los Angeles, California, and Jayashri
Srikantiah, for amicus curiae Stanford Law School Immi-
grants’ Rights Clinic, Stanford, California.
OPINION
FISHER, Circuit Judge:
[1] In Casas-Castrillon v. Department of Homeland Secur-
ity, 535 F.3d 942 (9th Cir. 2008), we held that aliens facing
prolonged detention while their petitions for review of their
removal orders are pending are entitled to a bond hearing
before a neutral immigration judge. In this appeal we address
certain procedures that must be followed in those hearings to
comport with due process. We hold as an initial matter that a
federal district court has habeas jurisdiction under 28 U.S.C.
§ 2241 to review Casas bond hearing determinations for con-
stitutional claims and legal error. See Demore v. Kim, 538
U.S. 510, 516-17 (2003). We also hold that, given the sub-
stantial liberty interests at stake in Casas hearings, the gov-
ernment must prove by clear and convincing evidence that
continued detention is justified. We further hold that the
immigration court is required to make a contemporaneous
record of Casas hearings and that an audio recording would
suffice.
Background
Vijendra Singh is a native and citizen of Fiji who was
admitted to the United States in 1979 on a visitor visa. He
became a lawful permanent resident in 1981. He has been
married to Babita Singh, who is also a U.S. resident, since
1985, and they have five children, all of whom are U.S. citi-
4516 SINGH v. HOLDER
zens. In April 2007, the Department of Homeland Security
(DHS) Immigration and Customs Enforcement (ICE) issued
Singh a Notice to Appear (NTA), charging that he was
removable because he had been convicted of receiving stolen
property in 2006 and petty theft with priors in 2005. Singh
was taken into ICE custody without bond on April 10, 2007,
and has remained in continuous custody from that time until
the present.
In September 2007, the immigration judge (IJ) concluded
that Singh was ineligible for cancellation of removal because
he had committed an aggravated felony within the meaning of
8 U.S.C. § 1101(a)(43)(G).2 Singh appealed to the Board of
Immigration Appeals (BIA), which affirmed the removal
order in March 2008. He then filed a petition for review of the
final administrative order of removal with this court in August
2008, docketed as No. 08-71682. We stayed the order of
removal on August 13, 2008, pending our resolution of the
petition. Those proceedings are ongoing and the stay remains
in place.
In September 2008, Singh received his first Casas bond
hearing before an immigration judge. Before the hearing
began, the government agreed that Singh’s wife would not be
cross-examined. Despite this stipulation, the IJ allowed the
government to cross-examine Mrs. Singh after Singh com-
pleted his own testimony. After the close of direct and cross-
examination, the IJ also permitted the government to intro-
duce as evidence Singh’s Record of Arrest and Prosecution
(RAP) sheet. Singh complains that he did not have an oppor-
tunity to explain or rebut the evidence presented in his RAP
sheet or his wife’s cross-examination because both were
admitted after the conclusion of his testimony.
2
On September 27, 2007, ICE amended the NTA to add the charge that
Singh was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because he had
been convicted of an aggravated felony. This charge was premised on
Singh’s 2003 conviction for receiving stolen property, which Singh unsuc-
cessfully argued did not qualify as an aggravated felony.
SINGH v. HOLDER 4517
When the bond hearing was near its end, the IJ incorrectly
stated that Singh bore the burden of proving he was not a
flight risk or a danger to the community. Singh immediately
objected and informed the IJ that the government bore the
burden of proof, and the IJ acknowledged the error. At the
conclusion of the hearing, the IJ found that Singh was not a
flight risk, a point the government had not disputed. The IJ
did, however, find that Singh was a danger to the community
and, accordingly, denied Singh’s request for release on bond.
In October 2008, the IJ issued a written decision denying
Singh bond. Apparently contradicting his oral finding at the
September hearing, the IJ concluded that Singh was a flight
risk as well as a danger to the community because of his crim-
inal history, his history of failures to appear and the fact that
he was under an administratively final order of removal.
Singh appealed to the BIA. He moved to obtain a transcript
of the Casas bond hearing to support his appeal, in which he
raised various due process violations he contended occurred
during the hearing. The BIA denied Singh’s motion, and ulti-
mately dismissed his appeal, concluding that he was both a
danger to the community “given his extensive criminal
record,” and a flight risk given that he was subject to a final
administrative order of removal.
In July 2009, Singh filed a petition for a writ of habeas cor-
pus alleging various procedural and substantive due process
violations at his Casas bond hearing. The district court denied
Singh’s petition in February 2010, concluding that it lacked
authority to review the IJ’s discretionary decision to deny
bond and that Singh’s allegations of procedural and substan-
tive due process violations were without merit. The court con-
cluded that “Petitioner’s procedural due process rights, as
afforded to him by Casas-Castrillon and Prieto-Romero [v.
Clark, 534 F.3d 1053 (9th Cir. 2008)], were satisfied because
Petitioner received an individualized bond hearing before a
neutral IJ.” We disagree with the district court’s conclusion
4518 SINGH v. HOLDER
that this is all that Casas-Castrillon and Prieto-Romero
require. Accordingly, we vacate the dismissal of Singh’s
habeas petition and remand to the district court with instruc-
tions to grant the writ and order Singh’s release unless within
45 days of the district court’s order the agency provides Singh
a new Casas hearing applying the standards set forth in this
opinion.
Jurisdiction
[2] We have jurisdiction over Singh’s appeal under 28
U.S.C. §§ 1291 and 2253(a). See Arango Marquez v. INS, 346
F.3d 892, 897 (9th Cir. 2003). Our jurisdiction is consistent
with 8 U.S.C. § 1226(e), which provides:
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
or decision by the Attorney General under this sec-
tion regarding the detention or release of any alien or
the grant, revocation, or denial of bond or parole.
Although § 1226(e) restricts jurisdiction in the federal courts
in some respects, it does not limit habeas jurisdiction over
constitutional claims or questions of law.
The Supreme Court held in Demore that § 1226(e) does not
strip a district court of its traditional habeas jurisdiction, “bar
constitutional challenge[s]” or preclude a district court from
addressing a habeas petition “challeng[ing] the statutory
framework that permits [the petitioner’s] detention without
bail.” 538 U.S. at 516-17; see also Al-Siddiqi v. Achim, 531
F.3d 490, 494 (7th Cir. 2008) (holding that § 1226(e) “does
not deprive us of our authority to review statutory and consti-
tutional challenges”); Saint Fort v. Ashcroft, 329 F.3d 191,
200 (1st Cir. 2003) (noting that Demore “read the jurisdiction-
limiting provision in § 1226(e) as applying only to review of
the Attorney General’s discretionary judgment”); Sierra v.
SINGH v. HOLDER 4519
INS, 258 F.3d 1213, 1217-18 (10th Cir. 2001) (holding,
before Demore was decided, that Ҥ 1226(e) does not
‘speak[ ] with sufficient clarity to bar jurisdiction pursuant to
the general habeas statute’ ” (alterations in original) (quoting
INS v. St. Cyr, 533 U.S. 289, 313 (2001))). In addition,
although the Attorney General’s “discretionary judgment . . .
shall not be subject to review,” claims that the discretionary
process itself was constitutionally flawed are “cognizable in
federal court on habeas because they fit comfortably within
the scope of § 2241.” Gutierrez-Chavez v. INS, 298 F.3d 824,
829 (9th Cir. 2002).
[3] The conclusion that the district court had habeas juris-
diction to review Singh’s claims of constitutional and legal
error is also consistent with 8 U.S.C. § 1252(a)(2)(B)(ii). Like
§ 1226(e), § 1252(a)(2)(B)(ii) restricts jurisdiction only with
respect to the executive’s exercise of discretion. It does not
limit habeas jurisdiction over questions of law, see Afridi v.
Gonzales, 442 F.3d 1212, 1218 (9th Cir. 2006), overruled on
other grounds by Estrada-Espinoza v. Mukasey, 546 F.3d
1147 (9th Cir. 2008) (en banc), including “application of law
to undisputed facts, sometimes referred to as mixed questions
of law and fact,” Ramadan v. Gonzales, 479 F.3d 646, 648
(9th Cir. 2007) (per curiam).
Standard of Review
We review de novo the district court’s decision to grant or
deny a § 2241 petition for a writ of habeas corpus. See
Nadarajah v. Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006).
We also review de novo due process claims and questions of
law raised in immigration proceedings. See Simeonov v. Ash-
croft, 371 F.3d 532, 535 (9th Cir. 2004). The district court’s
findings of fact are reviewed for clear error. See Jones v.
Wood, 207 F.3d 557, 559 (9th Cir. 2000).
4520 SINGH v. HOLDER
Discussion
I. Burden and Standard of Proof
A. The Immigration Judge Properly Placed the Burden
of Proof on the Government
[4] The first issue is whether the immigration judge prop-
erly allocated the burden of proof. As we held in Casas-
Castrillon, the burden of establishing whether detention is
justified falls on the government. See Casas-Castrillon, 535
F.3d at 951 (“[A]n alien is entitled to release on bond unless
the ‘government establishes that he is a flight risk or will be
a danger to the community.’ ” (emphasis added) (quoting
Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005))). Singh
contends that the IJ failed to adhere to this principle by
improperly placing the burden on him to show that he was
neither a danger nor a flight risk. We disagree. Although the
IJ initially stated that Singh bore the burden of proof, Singh
objected and the IJ immediately acknowledged the error. The
IJ’s written bond memorandum also reflects the proper alloca-
tion of the burden of proof to the government. We therefore
reject Singh’s argument.
B. The Applicable Standard of Proof is Clear and
Convincing Evidence
[5] Neither Casas-Castrillon nor any other Ninth Circuit,
statutory or regulatory authority specifies the appropriate
standard of proof at a Casas bond hearing. Singh argues that
the government should be held to a clear and convincing evi-
dence standard of proof.3 Given the substantial liberty interest
3
The government points out that Singh did not raise this argument
before the BIA, and therefore has not administratively exhausted the
claim, but the government does not request that we decline to address the
issue. The district court made no mention of an exhaustion problem in its
decision. On habeas review under § 2241, exhaustion is a prudential rather
SINGH v. HOLDER 4521
at stake — Singh, for example, has been detained for nearly
four years — we hold 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.
As we said in Casas-Castrillon, even where prolonged
detention is permissible, “due process requires ‘adequate pro-
cedural protections’ to ensure that the government’s asserted
justification for physical confinement ‘outweighs the individ-
ual’s constitutionally protected interest in avoiding physical
restraint.’ ” 535 F.3d at 950 (quoting Zadvydas v. Davis, 533
U.S. 678, 690 (2001)). Because it is improper to ask the indi-
vidual to “share equally with society the risk of error when
the possible injury to the individual” — deprivation of liberty
— is so significant, a clear and convincing evidence standard
of proof provides the appropriate level of procedural protec-
tion. Addington v. Texas, 441 U.S. 418, 427 (1979); see also
Tijani, 430 F.3d at 1244 (Tashima, J., concurring) (explaining
that, under Addington, the primary function of a standard of
proof is to properly “allocate the risk of an erroneous decision
among litigants based upon the competing rights and interests
involved”).
than jurisdictional requirement. See Arango Marquez, 346 F.3d at 897; see
also Acevedo-Carranza v. Ashcroft, 371 F.3d 539, 541 (9th Cir. 2004). We
exercise our discretion to waive the requirement and reach the issue. First,
a record of administrative appeal is not germane to the purely legal ques-
tion of what standard is most appropriate for such hearings. Second, relax-
ation of the requirement in this case will not encourage future habeas
petitioners to attempt to bypass the administrative scheme because, once
the standard has been set, this issue should cease to arise. Third, adminis-
trative review would not preclude the need for judicial review, because lit-
igants would undoubtedly seek this court’s determination of whether
whatever standard the agency set was correct. See Puga v. Chertoff, 488
F.3d 812, 815 (9th Cir. 2007) (discussing the factors courts consider when
determining whether to require prudential exhaustion). Given these cir-
cumstances, and given that Singh has already been detained for nearly four
years, we conclude that the interests of justice favor waiver.
4522 SINGH v. HOLDER
[6] The Supreme Court has repeatedly reaffirmed the prin-
ciple that “due process places a heightened burden of proof on
the State in civil proceedings in which the ‘individual inter-
ests at stake . . . are both particularly important and more sub-
stantial than mere loss of money.’ ” Cooper v. Oklahoma, 517
U.S. 348, 363 (1996) (alterations in original) (quoting San-
tosky v. Kramer, 455 U.S. 745, 756 (1982)); see also Foucha
v. Louisiana, 504 U.S. 71, 80 (1992) (requiring clear and con-
vincing evidence to justify civil commitment because
“[f]reedom from bodily restraint has always been at the core
of the liberty protected by the Due Process Clause”); Woodby
v. INS, 385 U.S. 276, 285 (1966) (requiring “clear, unequivo-
cal, and convincing” evidence to prove deportability); Chaunt
v. United States, 364 U.S. 350, 353 (1960) (requiring “clear,
unequivocal, and convincing” evidence to set aside a natural-
ization decree (internal quotation marks omitted)). For detain-
ees like Singh, who face years of detention before resolution
of their removability, the individual interest at stake is without
doubt “particularly important and more substantial than mere
loss of money,” and therefore a heightened standard of proof
is warranted. Santosky, 455 U.S. at 756.
We are not persuaded by the government’s argument that
we should deviate from this principle and apply the lower pre-
ponderance of the evidence standard because the liberty inter-
est at stake here is less than for people subject to an initial
finding of removal or other types of civil commitment. First,
the government argues that its purpose for detaining people
like Singh is distinguishable from other sorts of civil commit-
ment because removal is its ultimate goal. The Supreme
Court, however, “repeatedly has recognized that civil commit-
ment for any purpose constitutes a significant deprivation of
liberty.” Addington, 441 U.S. at 425, 427 (emphasis added)
(concluding that the individual’s interests were “of such
weight and gravity that due process requires the state to jus-
tify confinement by proof more substantial than a mere pre-
ponderance of the evidence”).
SINGH v. HOLDER 4523
Second, the government argues that aliens like Singh
should be treated differently because they can end their deten-
tion by voluntarily electing to leave the country. As the gov-
ernment conceded at oral argument, however, in some cases
aliens who do so will not be permitted to continue challenging
their removability from abroad. We are not persuaded that a
lower standard of proof is justified by putting people like
Singh 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.
Finally, the government argues that Singh’s liberty interest
is diminished because he has already been afforded a removal
hearing. We considered an analogous argument in Diouf v.
Napolitano, ___ F.3d ___, 2011 WL 768077 (9th Cir. 2011),
which addressed whether § 1231(a)(6) detainees have a lesser
liberty interest in freedom from detention than § 1226(a)
detainees because, “[u]nlike a § 1226(a) detainee, a
§ 1231(a)(6) detainee is subject to a final order of removal
and is thus, at least as a theoretical matter, closer to actual
removal from the United States.” Id. at *4. We concluded that
“the government ma[de] too much of this distinction” because
“[r]egardless of the stage of the proceedings, the same impor-
tant interest is at stake — freedom from prolonged detention.”
Id. We reach the same conclusion here. Although “at the mar-
gin” Singh’s liberty interest may be slightly less than that of
someone subject to only an initial finding of removal, funda-
mentally the same interest in freedom from prolonged deten-
tion is at stake. Id.
[7] We therefore hold that the clear and convincing evi-
dence standard of proof applies in Casas bond hearings.4 The
4
Statutes and regulations addressing similar issues also employ this
heightened standard of proof. For example, “the [government] has the bur-
den of establishing by clear and convincing evidence that, in the case of
an alien who has been admitted to the United States, the alien is deport-
4524 SINGH v. HOLDER
IJ erred in not holding the government to that heightened stan-
dard at Singh’s Casas hearing.
[8] We also conclude that this error was prejudicial. The
evidence that Singh was a danger and a flight risk was by no
means overwhelming, so the standard of proof could well
have affected the outcome of the bond hearing. Significantly,
during the hearing the IJ orally announced his finding that
Singh was not a flight risk, and only later, in the written bond
memorandum, found otherwise. Indeed, the government never
argued that Singh was a flight risk or presented any evidence
to that effect. Consequently, the only evidence the BIA cited
for its affirmance of the IJ’s conclusion that Singh was a
flight risk was the fact — common to all detainees afforded
Casas bond hearings — that Singh had already been ordered
removed by a final, administrative order, diminishing his
incentive to appear for further removal proceedings. Although
this is a relevant factor in the calculus, it alone does not con-
stitute clear and convincing evidence that Singh presented a
flight risk justifying denial of bond.
Next, the evidence showing that Singh presented a danger
was equivocal. In affirming the denial of bond, the BIA
focused on Singh’s prior convictions for petty theft, receiving
stolen property and substance abuse. Under a clear and con-
vincing evidence standard, the BIA might conclude that
Singh’s largely nonviolent prior bad acts do not demonstrate
able.” 8 U.S.C. § 1229a(c)(3)(A); see also Woodby, 385 U.S. at 285 (hold-
ing that the government must prove deportability by “clear, unequivocal,
and convincing” evidence). Likewise, 8 C.F.R. § 1236.1(c)(3) establishes
that when the burden of justifying pre-removal detention has not yet been
shifted to the government, criminal aliens must establish by clear and con-
vincing evidence that they are not a danger or flight risk and are likely to
appear for any scheduled proceeding. See also 8 U.S.C. § 1158(a)(2)(B)
(providing that an alien must demonstrate by clear and convincing evi-
dence that his or her asylum application was filed within one year of the
alien’s arrival).
SINGH v. HOLDER 4525
a propensity for future dangerousness, in view of evidence
showing that his drug use, which was the impetus for his pre-
vious offenses, has ceased.
[9] For these reasons, we cannot conclude that the clear
and convincing evidence standard we adopt today would not
have affected the outcome of the bond hearing. Accordingly,
we remand this case to the district court with instructions to
grant the writ and order Singh’s release unless within 45 days
of the district court’s order the agency provides Singh a new
Casas hearing applying the proper standard.
II. The Standard of Dangerousness that Must Be Met
to Deny Bond
A. Casas-Castrillon and Matter of Guerra Contemplate
that Criminal History Alone May Be Insufficient to
Justify Detention
[10] In Prieto-Romero we explained that, to determine
whether aliens like Singh who are detained under § 1226(a)
present a “flight risk or danger to the community,” immigra-
tion judges “should . . . look[ ] to the factors set forth at Mat-
ter of Guerra, [24 I. & N. Dec. 37, 40 (B.I.A. 2006)].” 534
F.3d at 1065-66. The Guerra factor most pertinent to assess-
ing dangerousness directs immigration judges to consider “the
alien’s criminal record, including the extensiveness of crimi-
nal activity, the recency of such activity, and the seriousness
of the offenses.” Guerra, 24 I. & N. Dec. at 40.5
5
Guerra discusses nine factors that,
Immigration Judges may look to . . . in determining whether an
alien merits release from bond, as well as the amount of bond that
is appropriate. These factors may include any or all of the follow-
ing: (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
alien’s family ties in the United States, and whether they may
entitle the alien to reside permanently in the United States in the
4526 SINGH v. HOLDER
[11] Although an alien’s criminal record is surely relevant
to a bond assessment, Guerra contemplates that criminal his-
tory alone will not always be sufficient to justify denial of
bond on the basis of dangerousness. Rather, the recency and
severity of the offenses must be considered. See id. Casas-
Castrillon likewise recognized that not every criminal record
would support a finding of dangerousness. Every criminal
alien who receives a Casas hearing has, presumably, been
convicted of at least one crime giving rise to the removal
order. Nevertheless, Casas-Castrillon required individualized
bond hearings to ensure that “the government’s purported
interest” in securing the alien’s presence at removal and pro-
tecting the community from danger “is actually served by
detention in [t]his case,” necessarily anticipating that criminal
history alone would not always justify detention. Casas-
Castrillon, 535 F.3d at 949.
[12] Indeed, not all criminal convictions conclusively
establish that an alien presents a danger to the community,
even where the crimes are serious enough to render the alien
removable. Cf. Foucha, 504 U.S. at 82-83 (requiring a show-
ing of dangerousness beyond that “of any convicted criminal”
to justify civil detention of the criminally insane). For exam-
ple, some orders of removal may rest on convictions for rela-
tively minor, non-violent offenses such as petty theft and
receiving stolen property. Moreover, a conviction could have
occurred years ago, and the alien could well have led an
entirely law-abiding life since then. In such cases, denial of
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 activ-
ity, and the seriousness of the offenses; (7) the alien’s history of
immigration violations; (8) any attempts by the alien to flee pros-
ecution or otherwise escape from authorities; and (9) the alien’s
manner of entry to the United States.
24 I. & N. Dec. at 40.
SINGH v. HOLDER 4527
bond on the basis of criminal history alone may not be war-
ranted.
B. The Government Need Not Establish “Special
Dangerousness” to Justify Denial of Bond
Singh urges us to require the government to prove that a
detainee is “a specially dangerous person” to justify denial of
bond. The government argues that the Guerra standard is suf-
ficient, and no heightened showing of dangerousness is
required. We are persuaded by the government’s argument.6
Although we recognize that the “basic purpose” of immigra-
tion detention is “assuring the alien’s presence at the moment
of removal,” Zadvydas, 533 U.S. at 699, and “protecting the
community from dangerous aliens is a . . . secondary statutory
purpose” more typically addressed through criminal law, id.
at 697, we disagree with Singh’s argument that Zadvydas
requires a heightened standard of “special dangerousness.”
[13] In deciding that special dangerousness is not required,
we draw a distinction between temporary and indefinite
detention. Although the Supreme Court noted in Zadvydas
that it has sanctioned “preventive detention based on danger-
ousness only when limited to specially dangerous individu-
als,” Zadvydas held the confinement at issue unconstitutional
in large part because the detention was “not limited, but
potentially permanent.” Id. at 691. Regulations governing
continued detention of removable aliens are in accord, provid-
ing that an alien must be found “specially dangerous” to per-
mit prolonged post-final order detention “where there is no
significant likelihood of removal in the reasonably foresee-
6
We are not persuaded by the government’s threshold argument that we
must sustain the district court’s determination that this question implicates
the immigration judge’s exercise of discretion, and is therefore unreview-
able under 8 U.S.C. § 1226(e). The question of what standard of danger-
ousness the government must meet presents a reviewable legal issue. See
Afridi, 442 F.3d at 1218.
4528 SINGH v. HOLDER
able future.” 8 C.F.R. § 1241.14(a) (emphasis added). Like-
wise, the Ninth Circuit cases Singh cites in support of his
argument for a special dangerousness standard address post-
removal period indefinite detentions. See, e.g., Tuan Thai v.
Ashcroft, 366 F.3d 790, 792 (9th Cir. 2004); Kim Ho Ma v.
Ashcroft, 257 F.3d 1095, 1102 (9th Cir. 2001). Singh, how-
ever, does not allege that he is subject to indefinite detention
like the Zadvydas detainees who were experiencing
“removable-but-unremovable limbo.” Prieto-Romero, 534
F.3d at 1063. Unlike in Zadvydas, Singh does not contend that
the United States lacks a repatriation treaty with Fiji or that
Fiji will refuse to accept him. Accordingly, although Singh’s
detention “lacks a certain end date,” it is not “indefinite in the
sense the Supreme Court found constitutionally problematic
in Zadvydas.” Id.Zadvydas also focused on the minimal procedural protec-
tions afforded to the detainees through administrative pro-
ceedings, noting that “the alien bears the burden of proving he
is not dangerous, without . . . significant later judicial
review.” 533 U.S. at 692. Here, by contrast, the government
bears the burden of proof, and must meet a clear and convinc-
ing evidence standard of proof. In addition, we have said that
there is jurisdiction for federal habeas courts to review Casas
bond determinations for constitutional claims and legal error.
There are thus far greater procedural protections in this con-
text than there were in Zadvydas.
[14] Given that Singh’s detention is not indefinite and that
procedural protections are in place to safeguard his rights, we
hold that due process does not require the government to
prove that he presents a “special danger” to justify denial of
bond at a Casas hearing.
III. The Government Must Provide
Contemporaneous Records of Casas Hearings
[15] In conjunction with his appeal of the denial of bond
at his Casas hearing, Singh asked the BIA to produce a tran-
SINGH v. HOLDER 4529
script of the hearing. Five days later he received a summary
denial of his request. The BIA has long concluded that
“[t]here is no right to a transcript of a bond redetermination
hearing.” Matter of Chirinos, 16 I. & N. Dec. 276, 277 (B.I.A.
1977). Current procedures provide instead that a written
memorandum decision is prepared only if a detainee appeals
the oral bond determination. See U.S. Dep’t of Justice, Exec.
Office for Immig. Rev., Immigration Court Practice Manual,
§ 9.3(e)(iii) & (vii) (2008). Singh argues that this post hoc
memorandum is inadequate, and that the absence of a contem-
poraneous record deprived him of due process. In accordance
with Mathews v. Eldridge, 424 U.S. 319 (1976), we agree that
due process requires a contemporaneous record of Casas
hearings and that the memorandum decision presently pro-
vided is insufficient. We hold that, in lieu of providing a tran-
script, the immigration court may record Casas hearings and
make the audio recordings available for appeal upon request.
Although we determine that such audio recordings satisfy due
process, and are feasible for the government to provide, we do
not decide whether they are the only constitutionally adequate
alternative to transcripts.
Evaluating the constitutional sufficiency of administrative
procedures calls for analysis of the governmental and private
interests affected. See id. at 334.
[T]he specific dictates of due process generally
require[ ] consideration of three distinct factors:
First, the private interest that will be affected by the
official action; second, 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 finally, the
Government’s interest, including the function
involved and the fiscal and administrative burdens
that the additional or substitute procedural require-
ment would entail.
4530 SINGH v. HOLDER
Id. at 335. The private interest here — freedom from pro-
longed detention — is unquestionably substantial. It is also
fundamentally affected by the BIA’s refusal to provide tran-
scripts or an adequate substitute. See Bergerco, U.S.A. v.
Shipping Corp. of India, 896 F.2d 1210, 1215 (9th Cir. 1990)
(“[W]here a defendant makes allegations of error which, if
true, would be prejudicial, the unavailability of a transcript
may make it impossible for the appellate court to determine
whether the defendant’s substantive rights were affected.”).
The memorandum decision provided under existing proce-
dures is insufficient for two reasons. First, it is not created
contemporaneously with the hearing. Post-hoc reconstruction
is inadequate because, “once the court has entered judgment,
it may become subject to the very natural weight of its con-
viction, tending to focus on that which supports its holding.”
Id. at 1214. Second, the memorandum decision is not the
functional equivalent of a transcript. Although a “ ‘record of
sufficient completeness’ does not translate automatically into
a complete verbatim transcript,” alternatives are permissible
only if they constitute an “equivalent report of the events at
trial from which the appellant’s contentions arise.” Mayer v.
City of Chicago, 404 U.S. 189, 194 (1971). The potentially
adequate substitutes the Supreme Court has suggested — “[a]
statement of facts agreed to by both sides, a full narrative
statement based perhaps on the trial judge’s minutes taken
during trial or on the court reporter’s untranscribed notes, or
a bystander’s bill of exceptions” — demonstrate the insuffi-
ciency of an after-the-fact decision drafted by an immigration
judge in the face of an impending appeal of his or her deci-
sion. Id. (internal quotation marks omitted) (quoting Draper
v. Washington, 372 U.S. 487, 495 (1963)). The suggested ade-
quate substitutes do, however, demonstrate that an audio
recording — a neutral contemporaneous record of the hearing
— would provide a “record of sufficient completeness.”
Accordingly, the first two Eldridge factors weigh heavily in
favor of requiring a neutral contemporaneous record of Casas
SINGH v. HOLDER 4531
hearings, and we conclude that audio recordings would satisfy
due process.
The final Eldridge factor, which looks to the burden on the
government, also favors Singh. See Eldridge, 424 U.S. at 335.
Although providing transcripts might constitute a significant
burden, the burden of tape recording hearings is much less
onerous and much less costly. Indeed, as counsel for the gov-
ernment readily conceded, immigration courts, where bond
hearings take place, already are required to be equipped with
recording devices and routinely record merits hearings. See 8
C.F.R. § 1240.9 (requiring all merits hearings on removal and
relief to be recorded). Because the government has the appro-
priate equipment at hand, tape recording bond hearings as
well as merits hearings would present a minimal additional
burden. Therefore, given the important liberty interest at
stake, the Eldridge factors dictate that the government must
make available for appeal a contemporaneous record of Casas
bond hearings. In the absence of a transcript, an audio record-
ing would suffice.
[16] Accordingly, in this case Singh was denied due pro-
cess. We agree, however, with the district court’s conclusion
that Singh has not demonstrated prejudice. Although, gener-
ally speaking, a transcript or adequate substitute is important
for providing meaningful appellate review, Singh has not
shown that a recording or transcript would reveal any error
that is not sufficiently apparent from the IJ’s memorandum
decision.
IV. Other Alleged Errors
[17] We reject Singh’s other claims of error. Singh argues
that he suffered a due process violation when the IJ permitted
the government to cross-examine his wife even though the
parties had previously stipulated that her affidavit would be
submitted as true without cross-examination. We need not
resolve this question because Singh cannot demonstrate preju-
4532 SINGH v. HOLDER
dice. See Prieto-Romero, 534 F.3d at 1066 (subjecting due
process violations in immigration proceedings to harmless
error review). The government asked Mrs. Singh about two
charges of domestic violence that appeared on Singh’s crimi-
nal record, which was later admitted into evidence. Mrs.
Singh testified that she had not brought the charges against
her husband, she was not afraid of him and she did not con-
sider him a threat. Given that the prejudicial information
about the domestic violence charges was also admitted from
another source and, if anything, Mrs. Singh’s testimony on
cross-examination was otherwise helpful to Singh, he was not
prejudiced.
[18] We also reject Singh’s argument that his due process
rights were violated when the IJ admitted his unauthenticated
RAP sheet into evidence. The Federal Rules of Evidence do
not apply strictly in immigration removal proceedings. See,
e.g., Baliza v. INS, 709 F.2d 1231, 1233 (9th Cir. 1983) (hold-
ing that deportation proceedings are “not . . . bound by strict
rules of evidence”). As the BIA acknowledged in its decision,
bond hearings are particularly informal in nature. See Joseph
v. Holder, 600 F.3d 1235, 1242 (9th Cir. 2010); id. at 1248(Graber, J., specially concurring). Furthermore, DHS regula-
tions delineating the rules of procedure for bond determina-
tions in immigration court specify that an immigration judge
may rely “upon any information that is available to the Immi-
gration Judge or that is presented to him or her by the alien
or the Service.” 8 C.F.R. § 1003.19(d). Requiring the parties
to adhere strictly to the Federal Rules of Evidence would run
counter to this regulation and the informal nature of the pro-
ceedings.
We reject Singh’s related argument that the Immigration
and Nationality Act prohibits admission of the unauthenti-
cated RAP sheet because DHS regulations provide that
domestic official records “shall be evidenced by an official
publication thereof, or by a copy attested by the official hav-
ing legal custody of the record or by an authorized deputy.”
SINGH v. HOLDER 4533
8 C.F.R. § 287.6(a). His argument fails because § 287.6(a)
applies only to a “proceeding under this chapter,” which is
Chapter I, whereas § 1003.19, which governs bond hearings
by immigration judges, is part of Chapter V. Section 1003.41,
which governs admissible evidence of criminal convictions at
proceedings before an immigration judge held under Chapter
V, provides that, in addition to records complying with
§ 287.6(a), a variety of other specified documents may prove
a criminal conviction, as well as “[a]ny other evidence that
reasonably indicates the existence of a criminal conviction.”
8 C.F.R. § 1003.41(d).
[19] We also conclude that Singh suffered no prejudice
when the IJ admitted his RAP sheet without giving him an
opportunity to explain or rebut it. Even if this could constitute
a due process violation, there is no indication that any of the
information in the RAP sheet is false, or that Singh could
have provided a mitigating explanation for any of the inci-
dents. On the contrary, the BIA considered Singh’s argument
and found that even if there was error, it was harmless
because Singh’s criminal history was already in the record.
V. Jurisdiction to Consider the Merits of
Singh’s Petition for Review
[20] Singh also makes a substantive due process argument
that the district court should have “look[ed] to the underlying
merits of Singh’s removal to determine if he has raised a sub-
stantial argument that he is unremovable” and therefore enti-
tled to habeas relief. The district court held that it did not have
jurisdiction to do so, treating Singh’s argument as a “back-
door attempt to have this Court review the underlying merits
of Petitioner’s removal, which this Court cannot do [under the
REAL ID Act, Pub. L. No. 109-13, Div. B, 119 Stat. 231, 231
(2005)].”
[21] The REAL ID Act “expressly eliminated habeas
review over all final orders of removal,” A. Singh v. Gonzales,
4534 SINGH v. HOLDER
499 F.3d 969, 977 (9th Cir. 2007), and provided that a peti-
tion for review in the court of appeals is the “sole and exclu-
sive means for judicial review of an order of removal,” 8
U.S.C. § 1252(a)(5). Congress’ purpose in enacting the REAL
ID Act was to “restor[e] judicial review ‘to its former settled
forum prior to 1996’ ” by eliminating suits in district courts
and funneling review of removal orders directly to the courts
of appeals. A. Singh, 499 F.3d at 977 (quoting H.R. Rep. No.
109-72, at 174 (2005), reprinted in 2005 U.S.C.C.A.N. 240,
299). The REAL ID Act was thus intended to reinstate a sys-
tem “abbreviat[ing] the process of judicial review,” id. at 975,
by “effectively limit[ing] all aliens to one bite of the apple
with regard to challenging an order of removal,” id. at 977(internal quotation marks and emphasis omitted) (quoting
Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005)).
[22] Congress has clarified, however, that the REAL ID
Act was not intended to “preclude habeas review over chal-
lenges to detention that are independent of challenges to
removal orders.” H.R. Rep. No. 109-72, at 175. Accordingly,
the general rule is that “[e]ven post-[REAL ID Act], aliens
may continue to bring collateral legal challenges to the Attor-
ney General’s detention authority . . . through a petition for
habeas corpus.” Casas-Castrillon, 535 F.3d at 946; see also
Nadarajah v. Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006)
(holding that “the jurisdiction-stripping provision [of the
REAL ID Act] does not apply to federal habeas corpus peti-
tions that do not involve final orders of removal”). “We must
be careful to maintain the distinction Congress made in the
REAL ID Act between those challenges that [must be directed
to the court of appeals in a petition for review] and those that
must be retained in and decided by the district court,” so as
not to unduly circumscribe district courts’ habeas jurisdiction.
Nnadika v. Att’y Gen. of U.S., 484 F.3d 626, 632 (3d Cir.
2007). We should also avoid the opposite pitfall, however,
and recognize the lack of jurisdiction where a habeas petition
“directly implicate[s] the order of removal.” Id. (discussing
Haider v. Gonzales, 438 F.3d 902 (8th Cir. 2006), as an
SINGH v. HOLDER 4535
example of such a case). The portion of Singh’s habeas peti-
tion that asks us to consider the underlying merits of his
removal order presents an example of this exception to the
rule.
[23] Although as a technical matter Singh’s habeas petition
seeks relief from immigration detention without asking the
court to exercise jurisdiction over his final order of removal,
this portion of his habeas petition is wholly intertwined with
the merits of his removal order. Singh makes the same argu-
ment in his habeas petition as he makes in his petition for
review — that he is not removable because his convictions do
not qualify as aggravated felonies under 8 U.S.C.
§ 1101(a)(43)(G). See Haider, 438 F.3d at 910. Because this
portion of his habeas petition “does nothing more than attack
the IJ’s removal order,” id., we lack jurisdiction to review it
other than on a petition for review.
We emphasize, however, that determining when the REAL
ID Act preempts habeas jurisdiction requires a case-by-case
inquiry turning on a practical analysis, and that there are
many circumstances in which an alien subject to an order of
a removal can properly challenge his immigration detention in
a habeas petition without unduly implicating the order of
removal. For example, in Flores-Torres v. Mukasey, 548 F.3d
708, 711 (9th Cir. 2008), we held that habeas jurisdiction
existed to review a challenge to immigration detention based
on the detainee’s argument that he was actually a United
States citizen and therefore could not properly be held in cus-
tody under 8 U.S.C. § 1226(a), which applies only to “al-
ien[s].” Similarly, in Casas-Castrillon, we had jurisdiction to
consider whether it was constitutional to detain an alien sub-
ject to removal without an individualized bond hearing evalu-
ating his risk of flight or dangerousness. See 535 F.3d at 946.
And in A. Singh, we reasoned that there was jurisdiction to
review a claim of ineffective assistance of counsel for failure
to timely petition for review because “a successful habeas
petition in this case will lead to nothing more than ‘a day in
4536 SINGH v. HOLDER
court’ for Singh, which is consistent with Congressional
intent underlying the REAL ID Act.” 499 F.3d at 979.
In each of these cases, the habeas challenge to detention
had a basis independent of the merits of the petition for
review. Even where the bases for the habeas petition and peti-
tion for review were related, as in Flores-Torres, the deten-
tion challenge could stand alone. Here, by contrast, this
portion of Singh’s habeas challenge rests entirely on his asser-
tion that he has presented a meritorious argument in his peti-
tion for review. He explicitly asks the habeas court to evaluate
whether “the Government is unlikely to prevail in removal
proceedings because [he] has raised a substantial argument
that he is not removable” in his pending petition for review.
Singh therefore advocates for an odd system wherein the dis-
trict court would examine the arguments against removal that
an alien expects to present to this court in his petition for
review, and potentially release him from detention based on
a prediction about what this court is likely to conclude when
it decides his pending petition for review.
Such a scheme would contravene Congress’ express inten-
tion to limit review of removal orders to “one day in the court
of appeals.” A. Singh, 499 F.3d at 978 (internal quotation
marks omitted) (quoting H.R. Rep. No. 109-72, at 175).
Indeed, were we to permit habeas review that “look[s] to the
underlying removal claim” as Singh requests, every alien peti-
tioning for review of his removal order could also petition for
habeas review on this basis, arguing that his detention is
impermissible because he will raise a meritorious argument in
his pending petition for review, and his removal is therefore
not reasonably foreseeable. This result would severely under-
mine the streamlined system Congress sought to establish by
enacting the REAL ID Act. Although we are sympathetic to
Singh’s desire for judicial review at the earliest possible
moment, the REAL ID Act dictates that such review must
take place in the proceedings related to his petition for review,
SINGH v. HOLDER 4537
rather than in the present appeal.7 Whether or not this is the
optimal system as a matter of policy, it is consistent with the
Suspension Clause because it provides a substitute remedy
offering the same scope of review as habeas. See Puri v. Gon-
zales, 464 F.3d 1038, 1041-42 (9th Cir. 2006) (citing Swain
v. Pressley, 430 U.S. 372, 381 (1977) and INS v. St. Cyr, 533
U.S. 289, 314 n.38 (2001)).
Conclusion
[24] The judgment of the district court is affirmed in part
and vacated in part and the matter is remanded to the district
court with instructions to grant the writ and order Singh’s
release unless within 45 days of the district court’s order the
agency provides Singh a new Casas hearing applying the
standards set forth in this opinion.
Costs on appeal are awarded to Singh.
AFFIRMED IN PART, VACATED IN PART and
REMANDED.
7
Singh mischaracterizes Nadarajah and Tijani when he suggests that
they demonstrate that a habeas court can properly consider whether he is
likely to prevail in his pending petition for review. In Nadarajah, we held
that the REAL ID Act was inapplicable because there was not yet any
final order of removal, and the REAL ID Act applies to habeas petitions
that “involve final orders of removal.” 443 F.3d at 1075-76. In Tijani,
although we were troubled by the length of detention prior to removal,
rather than consider the merits of the underlying removal order, we
ordered a bond hearing of the sort Singh has already been provided. See
Tijani, 430 F.3d at 1242.