'New' standard for immigrant bond hearings

Burden of proof that immigrant is not a danger to the community or a flight risk shifts to government

By Pat Murphy
BridgeTower Media Newswires
 
PROVIDENCE — An immigrant arrested for entering the country unlawfully should not have been required to carry the burden of showing that she was neither a danger to the community nor a flight risk in order to obtain release on bond pending the outcome of her removal proceeding, the 1st U.S. Circuit Court of Appeals has ruled.

After an immigration judge denied her bond, a federal judge in New Hampshire granted Ana Ruth Hernandez-Lara’s petition for a writ of habeas corpus on the ground that the government bore the burden of proving by clear and convincing evidence that Hernandez was either a danger or a flight risk.

The immigration judge released Hernandez on bond following a second hearing.

The government appealed, arguing that placing the burden of proof on Hernandez at her original hearing satisfied due process.

The 1st Circuit panel disagreed.

“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,” Judge William J. Kayatta wrote for the majority.

Accordingly, the court held that in order to continue detention of an immigrant under 8 U.S.C.§1226(a), due process requires the 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.”

Judge Sandra L. Lynch dissented, criticizing the majority for creating a circuit split by failing to follow “binding” Supreme Court precedent.

“First, the majority gives a backhand to the basic principle of constitutional avoidance and violates basic separation of powers principles,” Lynch wrote. “Second, if that were not enough, the majority’s due process analysis is simply wrong and contrary to controlling law.”

The 92-page decision is Hernandez-Lara v. Lyons.

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Pleasant surprise?

The plaintiff is represented by New Hampshire attorneys Bryanna K. Devonshire and SangYeob Kim. According to Devonshire, the decision aligns fully with Supreme Court precedent.

“The Supreme Court has recognized that due process is a guaranteed right that applies to all persons in the United States, citizens and noncitizens alike,” Devonshire said. “This decision is in line with that deeply rooted constitutional right.”

The government has yet to indicate whether it will seek a rehearing en banc by the 1st Circuit or appeal to the Supreme Court, Kim said.

“The government created a procedure for the bond hearings, and if that procedure is in violation of due process, intervention of the courts is essential,” Kim said.

Devonshire admitted that she would have liked to see the 1st Circuit adopt a “clear and convincing evidence” standard for both flight risk and danger to the community.

“But even with the lower burden [for flight risk], it’s still better than what existed beforehand where the government didn’t have to prove anything and the burden was on the noncriminal immigrant to prove a negative,” Devonshire said.

Kim pointed out that it simply makes sense to shift the burden of proof to the government.

“The government has access to everything,” Kim said. “They have access to all criminal records, not just those in the federal criminal database.”

Hans J. Bremer, an immigration attorney in Providence, said he was happy if not a bit surprised by the ruling.

“I did not expect the 1st Circuit to rule as they did. I thought the District Court would be reversed.”

While Bremer said the Supreme Court should take up the case and extend the 1st Circuit’s new standard throughout the country, he worried that the current court would reverse Hernandez.

Bremer, who represents clients detained in Massachusetts and Rhode Island, noted that the 1st Circuit’s decision largely validates U.S. District Court Judge Patti B. Saris’ 2019 ruling in Pereira Brito, et al. v. Barr, et al.

That case set the current standard in Massachusetts with Saris holding that due process as well as the Immigration and Nationality Act and the Administrative Procedure Act require the government to bear the burden of proof of showing at bond hearings that an alien is a danger to the community or a flight risk, pursuant to 8 U.S.C. §1226(a).

The government’s burdens of proof as held by Saris in Pereira Brito mirrored those adopted by the majority in Hernandez. Pereira Brito is also before the 1st Circuit on review.

“As long as your client was detained in Massachusetts, you had to follow [Pereira Brito,]” Bremer said. “But if your client was detained in Rhode Island, you didn’t have to follow that order, even though the same immigration judge was hearing both cases out of Boston. It set up an odd dichotomy.”

Cambridge attorney Susan B. Church called Hernandez a “huge victory” for the immigration bar.

“[The petitioner’s attorneys] basically took a lot of the principles of federal criminal law and migrated it to the immigration context to say burdens of proof should not be on the immigrants,” Church said.

She added that the dissent “slightly exaggerated” the existence of a circuit split, meaning it is not foreordained that the Supreme Court will agree to review the 1st Circuit decision.

Meanwhile, Boston immigration lawyer William E. Graves said the ruling was the result of the majority’s “straightforward” statutory analysis.

“The statute provides that people without a criminal conviction are entitled to a bond hearing,” Graves said. “The past precedent had placed the burden on the government to show dangerousness to the community and flight risk. The regulation that the Board of Immigration Appeals ultimately relied on to change that standard was written for the enforcement part of the agency. It wasn’t written for the courts, so there was no reason to change existing precedent, which was consistent with the Constitution.”

Catherine M. Reno of the U.S. Department of Justice argued the case on behalf of the government. Reno did not respond to a request for comment.

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10 months behind bars

According to court records, the 34-year-old petitioner is a citizen of El Salvador who entered the U.S. in 2013 without being lawfully admitted or receiving permission to remain temporarily.

Following her arrest by an immigration officer in September 2018, the government detained Hernandez at a county jail in Dover, New Hampshire.

One month later, an immigration judge denied Hernandez release on bond pending a determination of her removability. At the hearing, the immigration judge placed on the petitioner the burden of proving that she was neither a danger to the community nor a flight risk.

Hernandez filed a petition for a writ of habeas corpus in New Hampshire federal court. In seeking relief, the petitioner argued that the due process clause of the Fifth Amendment entitled her to a bond hearing at which the government bore the burden of proving danger or flight risk by clear and convincing evidence.

U.S. District Court Judge Landya B. McCafferty agreed, ordering a new hearing under that standard.

An immigration judge released the petitioner on bond following the second hearing. At the time of her release, the petitioner had spent 10 months in detention.

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Shifting the burden

In addressing the government’s appeal, Kayatta noted that 8 U.S.C. §1226(a) is the Immigration & Nationality Act’s “discretionary detention provision” applicable to those noncitizens who have not committed certain types of criminal offenses. The statute provides that the government “may release” a detained noncitizen on “bond ... or conditional parole.”

Under applicable regulations, if an immigration officer opts for continued detention, the detainee may seek a bond hearing before an immigration judge. However, §1226(a) is silent as to the applicable burden of proof in bond hearings and who bears that burden.

After Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act in 1996, the Immigration and Naturalization Service adopted regulations establishing a presumption of detention with respect to custody determinations by an arresting officer.

Under 8 C.F.R. §236.1(c)(8), 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.” The agency later extended that standard to §1226(a) bond hearings.

In 2018, the U.S. Supreme Court in Jennings v. Rodriguez held that §1226(a) does not require periodic bond hearings in which the government must prove by clear and convincing evidence that an alien’s continued detention is necessary.

Kayatta wrote that Jennings left unanswered the constitutional question raised in Hernandez: whether the Fifth Amendment’s due process clause entitles a §1226(a) detainee 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.

Weighing the factors previously considered by the Supreme Court in assessing a procedural due process challenge in a 1976 case, Mathews v. Eldridge, Kayatta concluded that the burden of proof must be placed on the government, with the caveat that the lesser preponderance-of-the-evidence standard governed the flight-risk inquiry.

“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,’” Kayatta wrote.