Oscar M-S. v. Garland

Oscar M-S., Petitioner, v. Merrick B. Garland et al., Respondents.

No. 21-cv-1341 (WMW/KMM)

United States District Court, D. Minnesota

December 20, 2021

REPORT AND RECOMMENDATION

Katherine Menendez, United States Magistrate Judge

This matter is before the Court on Oscar M-S.'s Petition for Writ of Habeas Corpus. [ECF No. 1]. Mr. M-S., who has been in the custody of Immigration and Customs Enforcement (ICE) since June of last year, contends that the procedures at his immigration bond hearing violated due process, and he seeks immediate release or, alternatively, a new bond hearing with the burden of proof placed on the government. He also argues that the length of his detention violates his due process rights. For the reasons that follow, the Court recommends granting the Petition in part and ordering a new bond hearing.

I. Background^[1]

Mr M-S. is a citizen of Mexico who, according to the government, has unlawfully entered the country on multiple occasions, including reentering following his 2009 voluntary removal. He was arrested in July 2019 on charges of malicious punishment of a child and domestic assault, the latter of which was later dismissed. [ECF No. 8-1 at 32-47]. In January 2020, a Lyon County jury found that Mr. M-S. had used unreasonable force or cruel discipline on a girl in his care when she was 10 to 12 years old. [ECF No. 8-1 at 49-51]. Mr. M-S. was sentenced to 360 days in the Lyon County Jail, 330 days of which were stayed. [ECF No. 8-1 at 49]. He began serving his thirty-day sentence on May 15, 2020.

Immigration officials lodged a detainer on Mr. M-S., and when he had finished serving his criminal sentence, he was taken into ICE custody. Mr. M-S. was arrested on charges of removability and detained pending administrative review of his case. [ECF No. 8-1 at 1, 7, 54]. On June 18, 2020, the Immigration Judge (IJ) sustained the charges of removability on the basis that Mr. M-S. was unlawfully in the United States. [ECF No. 8-1 at 54].

Following the initial decision to detain Mr. M-S. pending removal, he made a motion for bond redetermination. On June 22, 2020, an IJ held a bond redetermination hearing, and denied bond.^[2] [ECF No. 8-1 at 54]. The IJ found that Mr. M-S. “did not meet his burden to demonstrate that he would not pose a danger to the community.” Id. Although Mr. M-S. has several times sought review of his detention status and denial of bond, it appears from the record that only a single bond hearing was held. [ECF No. 8 at ¶¶ 25, 28, 30-32, 37; ECF No. 8-1 at 57, 81, 85- 86].

In addition to challenging his detention, Mr. M-S. also sought relief from removal, applying for cancellation of removal, withholding of removal, protection under the convention against torture, and asylum. [See ECF No. 8-1 at 58]. The requests and applications were denied by an immigration judge, who ordered Mr. M-S. removed to Mexico. [See ECF No. 8-1 at 58- 78]. Mr. M-S. reserved appeal. [ECF No. 8-1 at 59]. His appeal is currently pending. [ECF No. 8 at ¶ 39].

II. Discussion

Mr. M-S. is detained pursuant to 8 U.S.C. § 1226(a) following his June 2020 bond hearing. He argues that his continued detention violates the due process clause, and that the decision to detain him based on his criminal conviction was unreasonable, because he is neither a flight risk nor a danger to the community. M-S. argues that his due process rights were violated when the IJ placed the burden on him to show that he was not a danger to the community at the bond redetermination hearing, rather than placing that burden on the government.

In response, Mr. Garland and the other respondents (hereinafter “the government”) argue that they have the statutory and constitutional authority to detain noncitizens in some circumstances, and that Mr. M-S.'s case meets those criteria. They also argue that ICE's decision about where to place the burden of proof at Mr. M-S.'s bond hearing is a reasonable interpretation of the statutes and therefore entitled to deference.

The Court concludes that due process requires that Mr. M-S. receive a bond hearing in which the government bears the burden of proof. The Court therefore recommends that Mr. M-S.'s petition be granted in part, and that respondents ensure that he receive a bond redetermination hearing before an Immigration Judge at which the government must prove by clear and convincing evidence that he is a danger to the community in order to continue detaining him. The Court further concludes that Mr. M-S. has established prejudice from the misallocation of the burden of proof at his initial hearing, and therefor remand is required.

A. Burden of Proof and the Due Process Clause Mr. M-S. is detained pursuant to § 1226(a), which permits the government to detain or release on bond a noncitizen who is placed in removal proceedings. Jennings v. Rodriguez, 138 S.Ct. 830, 837-38 (2018). Where a noncitizen is detained, he or she may request a bond hearing before an Immigration Judge. While the statute is silent as to which party bears the burden of proof at such a hearing, agency regulations mandate that the burden is on the detainee to prove, “to the satisfaction of the officer[, ] that . . . release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceedings.” 8 C.F.R. § 236.1(c)(8). The question before the Court is not whether this regulatory scheme is a reasonable interpretation of a silent statutory provision, but whether its application to Mr. M-S. violated his constitutional rights. Pensamiento v. McDonald, 315 F.Supp.3d 684, 693 (D. Mass. 2018) (“[W]hether or not Chevron deference applies to the BIA's interpretation of the statute, the issue before the Court is whether the Constitution requires the government to bear the burden of proof in § 1226(a) bond hearings.”); Cisneros v. Napolitano, No. 13-cv-700 (JNE/JJK), 2013 WL 3353939, at *8 (D. Minn. July 3, 2013) (“[A]n agency's interpretation of an ambiguous statute will not receive Chevron deference when the interpretation raises constitutional questions.”). The Court concludes that it did.

A Broad Consensus in the Jurisprudence

Whether due process requires the government to bear the burden of proof at § 1226(a) bond hearings is an unresolved question in this Circuit and in this district.^[3] However, other circuits and many other districts have answered this question, and a significant majority of those cases have done so in the affirmative. Hernandez-Lara v. Lyons, 10 F.4th 19 (1st Cir. 2021) (“We therefore conclude that the government must bear the burden of proving dangerousness or flight risk in order to continue detaining a noncitizen under section 1226(a).”); Gonzalez v. Barr, 955 F.3d 762, 772 (9th Cir. 2020) (“[D]ue process requires the government to prove ‘by clear and convincing evidence that an alien is a flight risk or danger to the community to justify the denial of bond.'” (quoting Singh v. Holder, 638 F.3d 1196, 1203 (9th Cir. 2011))); Darko v. Sessions, 342 F.Supp.3d 429, 435 (S.D.N.Y. 2019) (“A number of district courts have taken up the question . . . and there has emerged a consensus view that where, as here, the government seeks to detain an alien pending removal proceedings, it bears the burden of proving that such detention is justified.” (quotation omitted)); Diaz-Ceja v. McAleenan, No. 19-cv-824-NYW, 2019 WL 2774211, at *7 (D. Col. July 2, 2019) (“The clear weight of authority from courts to have considered the question . . . have come to the same conclusion.”); Dubon Miranda v. Barr, 463 F.Supp.3d 632, 645 (D.M.D. 2020) (describing the conclusion that “due process requires that the government bear the burden of justifying a noncitizen's § 1226(a) detention” as “the consensus view”); J.G. v. Warden, Irwin Cty. Det. Ctr., 501 F.Supp.3d 1331, 1335 (M.D. Ga. 2020) (“This Court joins the Ninth and Second Circuits as well as the overwhelming majority of district courts that hold the Government must bear the burden of proof to justify a noncitizen's detention pending removal proceedings.”); see Velasco Lopez v. Decker, 978 F.3d 842, 855 (2d Cir. 2020) (holding that noncitizens have a due process right to a new bond hearing with the burden on the government once their detention under § 1226(a) has been “unduly prolonged”); Reyes v. King, 19 Civ. 8674 (KPF), 2021 WL 3727614, at *7 n.7 (S.D.N.Y. Aug. 20, 2021) (noting that the Second Circuit's Lopez decision does not overrule “the overwhelming consensus of Courts in this district” that due process requires the government to bear the burden at § 1226(a) hearings). But see Asolo v. Prim, 21 CV 500059, 2021 WL 3472635, at *6 (N.D. Ill. Aug. 6, 2021) (holding that “the constitution requires the government to provide clear and convincing evidence . . . only at the point that detention is no longer reasonable” (emphasis added)). This Court's review of the case law confirms that “overwhelming consensus” accurately describes the state of national jurisprudence regarding whether the government should bear the burden of proof at a bond hearing under § 1226(a).

Against this weight of authority, the government cites to Borbot v. Warden Hudson Cty. Corr. Facility. 906 F.3d 274 (3d Cir. 2018), which it argues stands for the proposition that due process is satisfied despite a § 1226(a) hearing which placed the burden on the ICE detainee rather than the government. For three reasons, this Court is not persuaded by Borbot. First, it almost goes without saying that Borbot is not binding on this Court. But more critically, it is not at all clear that the Borbot decision can even be read as holding that a bond redetermination hearing which places the burden of proof on the detainee under § 1226(a) does not violate the Due Process...