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Summary of this case from Daciann D. B. v. Immigration Custody Enf'tOpinion
File No. 20-cv-2568 (ECT/KMM)
2021-06-14
PEDRO O., Petitioner, v. Merrick B. GARLAND, Attorney General; Alejandro Mayorkas, Secretary, Department of Homeland Security; Tae D. Johnson, Acting Director, Immigration and Customs Enforcement; Marcos Charles, Director, St. Paul Field Office Immigration and Customs Enforcement; and Eric Holien, Sheriff, Kandiyohi County, Respondents.
Benjamin Casper Sanchez and Nadia Anguiano-Wehde (Supervising Attorneys) and Ellie Soskin and John Weber (Law Student Attorneys), James H. Binger Center for New Americans, University of Minnesota Law School, Minneapolis, MN; Paul A. Dimick and Teresa Nelson, American Civil Liberties Union of Minnesota, Minneapolis, MN; Mary Georgevich, Immigrant Law Center of Minnesota, St. Paul, MN; John Bruning, The Advocates for Human Rights, Minneapolis, MN; and Michael D. Reif and Rajin S. Olson, Robins Kaplan LLP, Minneapolis, MN, for Petitioner Pedro O. Ana H. Voss and Ann M. Bildtsen, United States Attorney's Office, Minneapolis, MN, for Respondents. Anne E. Carlson, Justin H. Perl, Kristen Ann Hathaway, and Nathaniel Gier, Mid-Minnesota Legal Aid, Immigration Law Project, Minneapolis, MN; and Jonah Eaton, Nationalities Service Center, Philadelphia, PA, for Amici Mid-Minnesota Legal Aid, Nationalities Service Center, and American Immigration Lawyers Association.
Benjamin Casper Sanchez and Nadia Anguiano-Wehde (Supervising Attorneys) and Ellie Soskin and John Weber (Law Student Attorneys), James H. Binger Center for New Americans, University of Minnesota Law School, Minneapolis, MN; Paul A. Dimick and Teresa Nelson, American Civil Liberties Union of Minnesota, Minneapolis, MN; Mary Georgevich, Immigrant Law Center of Minnesota, St. Paul, MN; John Bruning, The Advocates for Human Rights, Minneapolis, MN; and Michael D. Reif and Rajin S. Olson, Robins Kaplan LLP, Minneapolis, MN, for Petitioner Pedro O.
Ana H. Voss and Ann M. Bildtsen, United States Attorney's Office, Minneapolis, MN, for Respondents.
Anne E. Carlson, Justin H. Perl, Kristen Ann Hathaway, and Nathaniel Gier, Mid-Minnesota Legal Aid, Immigration Law Project, Minneapolis, MN; and Jonah Eaton, Nationalities Service Center, Philadelphia, PA, for Amici Mid-Minnesota Legal Aid, Nationalities Service Center, and American Immigration Lawyers Association.
OPINION AND ORDER
Eric C. Tostrud, United States District Judge
For more than a year, Pedro O., a citizen of Mexico, has been detained in the Kandiyohi County Jail while he waits for the conclusion of his removal proceedings. He has not received an individualized bond hearing. In a petition for a writ of habeas corpus, he argues that his prolonged detention violates the Due Process Clause of the Fifth Amendment to the U.S. Constitution. Pet. ¶¶ 49–64 [ECF No. 1]. He seeks immediate release or, in the alternative, a bond hearing. Id. ¶ 87 and p. 35. The Government vigorously opposed the petition. ECF No. 12. In a Report and Recommendation ("R&R"), Magistrate Judge Katherine Menendez concluded that Pedro's detention has become unconstitutional. R&R at 14–16 [ECF No. 25]. As a remedy, Magistrate Judge Menendez recommended that Pedro receive a bond hearing at which the Government bears the burden to show by clear and convincing evidence that he poses a risk of flight or a danger to the community. Id. at 16–17, 28–29. The Government filed objections to the R&R, and Pedro filed a response. Gov't Objs. [ECF No. 27]; Petr.’s Resp. [ECF No. 32].
The Parties’ arguments raise several difficult legal questions that the Supreme Court and the Eighth Circuit have not yet answered. Under the law as it stands now, however, the better answer is to accept the R&R in its entirety. Pedro's extended detention violates due process. Before that detention may go on, the Government must justify it by clear and convincing evidence. The proper vehicle for that showing is a bond hearing before an immigration judge. Such a hearing must be held no more than 21 days after entry of this order.
I
A
Federal law has long allowed immigration officials to detain non-citizens (which the governing statutes refer to as "aliens") in a variety of circumstances. See generally Hillel R. Smith, Cong. Rsch. Serv., R45915, Immigration Detention: A Legal Overview (Sept. 16, 2019). This case concerns one such circumstance: detention during the pendency of an alien's removal proceedings. In that context, one of two statutory provisions applies. The first provision, which sets out a general rule, places the alien's detention within the Attorney General's discretion. See 8 U.S.C. § 1226(a). In other words, the Attorney General "may" detain the alien for the duration of removal proceedings, or he "may" release the alien on bond or conditional parole. Id. § 1226(a)(1)–(2). Regulations allow an alien detained under § 1226(a) to seek a bond hearing, first before an officer from the Department of Homeland Security and then before an immigration judge. 8 C.F.R. §§ 236.1(c)(8) and (d)(1), 1003.19, 1236.1(c)(8) and (d)(1) ; see Nielsen v. Preap, ––– U.S. ––––, 139 S. Ct. 954, 959–60, 203 L.Ed.2d 333 (2019). The alien can request a bond hearing "at any time before" receiving a final order of removal. 8 C.F.R. § 1003.19(a), 1236.1(d)(1). At the bond hearing, the alien has the burden to "convince the officer or immigration judge that he poses no flight risk and no danger to the community." Preap, 139 S. Ct. at 960 (citing Matter of Guerra, 24 I. & N. Dec. 37 (B.I.A. 2006) ).
After the first bond hearing, an alien can request a "subsequent bond redetermination," but "only upon a showing that the alien's circumstances have changed materially since the prior bond redetermination." 8 C.F.R. § 1003.19(e).
The second provision, which is an exception to the general rule, makes detention during removal proceedings mandatory when the alien is "inadmissible" or "deportable" for specified reasons—usually because the alien has been convicted of a qualifying criminal offense. 8 U.S.C. § 1226(c). Aliens detained under § 1226(c) do not get bond hearings. Instead, the Attorney General "may" only release the alien if doing so is necessary for limited witness-protection purposes and the alien shows that he "will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding." Id. § 1226(c)(2).
An alien detained under § 1226(c) may obtain a Joseph hearing—named for the Board of Immigration Appeals's ("BIA's") decision in Matter of Joseph , 22 I. & N. Dec. 799 (B.I.A. 1999) —for the limited purpose of raising a "nonfrivolous argument ... that he was not properly included in a mandatory detention category." Demore v. Kim , 538 U.S. 510, 514 & n.3, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). As discussed below, Pedro concedes that he is properly included in a mandatory-detention category.
B
This legal background helps explain how Pedro ended up where he is. In May 2017, after Pedro had been living in the United States for about twenty years, police in Woodbury, Minnesota, arrested him for a serious criminal-sexual-conduct offense. Pet. ¶¶ 1–2; Van der Vaart Decl. ¶¶ 4–5 [ECF No. 13]. Two days later, immigration officials took custody of Pedro but ultimately released him on bond (as he had not yet been convicted of an offense triggering mandatory detention). Van der Vaart Decl. ¶¶ 6–7, Ex. 1 at 1, 3, 5–6 [ECF No. 13-1].
Several months later, in September 2017, state officials formally charged Pedro with first-degree criminal sexual conduct. Pet., Ex. H at 7–10 [ECF No. 1-9]; see Minn. Stat. § 609.342, subd. 1(a). The case was delayed for over two and a half years because Pedro was twice found incompetent to stand trial and was civilly committed. Pet. ¶¶ 34–36, Ex. H at 11–15, Ex. K at 4 [ECF No. 1-12]. Eventually, the state court found him competent and he pleaded guilty. Id. ¶ 37. The state court sentenced him to 172 months in prison, but it stayed execution of the sentence, gave him credit for time served, and ordered 25 years of supervised probation. Id., Ex. H at 20–23.
On May 4, 2020, the same day that Pedro was sentenced, Immigration and Customs Enforcement ("ICE") took him into custody. Id., Ex. I at 1–2 [ECF No. 1-10]. ICE alleged that he was removable for being present without admission or parole and for having committed an "aggravated felony." Id. ¶ 39, Ex. I at 2; see 8 U.S.C. §§ 1101(a)(43)(A), 1227(a)(2)(A)(iii). On September 24, 2020, an immigration judge granted Pedro's application for deferral of removal under the Convention Against Torture, finding it was more likely than not that he would be tortured if he were removed to Mexico. Id. ¶ 40, Ex. L at 2 [ECF No. 1-13]. ICE immediately appealed this ruling to the BIA. That appeal is fully briefed and awaiting decision. Van der Vaart Decl. ¶ 12.
In the meantime, Pedro remains detained in the Kandiyohi County Jail (which has a contract with ICE). The Parties agree that his criminal-sexual-conduct conviction is an "aggravated felony" within the meaning of 8 U.S.C. § 1227(a)(2)(A)(iii) —one of the qualifying offenses listed in 8 U.S.C. § 1226(c)(1) —so his detention is mandatory under the terms of § 1226(c). He accordingly has not received a bond hearing at any point during the course of his 13-month detention.
C
In December 2020, Pedro filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241. He alleged that his continued detention without a bond hearing violated the Due Process Clause of the Fifth Amendment. Pet. ¶¶ 49–64. For relief, he sought immediate release or, in the alternative, a bond hearing at which the Government would bear the burden of proof by clear and convincing evidence. Id. ¶ 87 and p. 35. Magistrate Judge Menendez requested a response to the petition, ECF No. 3, and the Government filed one, opposing the petition on all fronts. ECF No. 12.
Relying on factors identified in Muse v. Sessions, 409 F. Supp. 3d 707 (D. Minn. 2018), and numerous other cases in this District, Magistrate Judge Menendez agreed that with Pedro that his detention violated due process. R&R at 14. Instead of recommending immediate release, however, Magistrate Judge Menendez concluded that he should receive a bond hearing before an immigration judge. Id. at 14–16. Finally, recognizing that multiple courts in this District had previously left the procedures for such bond hearings to immigration judges, Magistrate Judge Menendez concluded that, at the hearing, the Government should have the burden to show by clear and convincing evidence that Pedro's ongoing detention "is necessary to protect the public or prevent the risk of flight." Id. at 16–27.
In its objections, the Government argues both that Pedro's detention does not violate due process and that, if a bond hearing is granted, the Government should not have the burden to justify the detention. Gov't Objs. at 2–10. Pedro filed a response to the Government's objections, but he filed no objections of his own. ECF Nos. 28, 32.
II
The first question is whether Pedro's continued detention violates the Due Process Clause. Neither the Supreme Court nor the Eighth Circuit has provided a framework for answering this question. In Demore v. Kim, the Supreme Court held that mandatory detention under § 1226(c) is facially constitutional. 538 U.S. 510, 531, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). Throughout the opinion, however, the Court made clear that it based its holding on its understanding that detention pending removal would generally only last a "brief" and "limited" period of time. E.g., id. at 530, 123 S.Ct. 1708 ("[T]he detention at stake under § 1226(c) lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal."). And Justice Kennedy, who provided a necessary fifth vote for the majority, separately expressed his view that the Due Process Clause might entitle an alien "to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified." Id. at 532, 123 S.Ct. 1708 (Kennedy, J., concurring). These features of Demore led a number of courts, faced with as-applied challenges to mandatory immigration detention and relying on the canon of constitutional avoidance, to read an implicit time limitation into § 1226(c). See, e.g., Diop v. ICE/Homeland Sec., 656 F.3d 221, 235 (3d Cir. 2011).
The Supreme Court rejected this interpretation of the statute in Jennings v. Rodriguez, holding that the plain text of § 1226(c) requires detention throughout an alien's removal proceedings and could not plausibly be read to contain an implicit time limitation. ––– U.S. ––––, 138 S. Ct. 830, 846–47, 200 L.Ed.2d 122 (2018). Nonetheless, the Court explicitly "[did] not reach" any arguments concerning the constitutionality of prolonged detention under § 1226(c). Id. at 851.
Since Jennings, courts in this District and around the country have consistently recognized that "prolonged mandatory detention under § 1226(c), without an individualized determination that a detainee presents a risk of flight or a danger to the community, may violate the Due Process Clause[.]" R&R at 5 (collecting cases); see Muse, 409 F. Supp. 3d at 715. To decide whether a particular detention has become unconstitutional, courts in this District tend to follow six factors that Judge Schiltz identified in his persuasive Muse opinion:
(1) the total length of detention to date; (2) the likely duration of future detention; (3) the conditions of detention; (4) delays of the removal proceedings caused by the detainee; (5) delays of the removal proceedings caused by the government; and (6) the likelihood that the removal proceedings will result in a final order of removal.
Muse, 409 F. Supp. 3d at 715 ; see also, e.g., Abdirizak Mohamed A. v. Brott, No. 18-cv-3063 (ECT/HB), 2020 WL 1062913, at *2–3 (D. Minn. Mar. 5, 2020) (collecting cases).
In its objections, the Government does not meaningfully challenge the way the R&R applies these factors. Instead, it asserts that the factors should not come into play at all. According to the Government, such a test "was rejected by the Supreme Court in Jennings and is inconsistent with the Supreme Court's decision in Demore [.]" Gov't Objs. at 5. In its view, a detention is constitutional as long as it "still serves the purpose of Section 1226(c)," and habeas relief is justified only in "extraordinary cases"—for example, when the Government causes a delay in bad faith. Id. at 3–5.
These arguments have repeatedly been considered and rejected in similar cases. Whether a detention serves the purpose of § 1226(c) "is the ultimate question to be answered at a bond hearing, if one is ordered," so it cannot control whether due process requires a bond hearing in the first place. Abdirizak Mohamed A., 2020 WL 1062913, at *3. Moreover, the Government's argument "read[s] too much into" Jennings and Demore. Id. Jennings is a statutory-interpretation case that explicitly reserves judgment on what limits, if any, due process imposes on the duration of a § 1226(c) detention. Jennings, 138 S. Ct. at 851. And Demore, which involved only a facial challenge to § 1226(c), made "repeated, obvious references to the ‘brief’ and ‘very limited’ duration of most § 1226(c) detentions." Abdirizak Mohamed A., 2020 WL 1062913, at *3. Given the lack of guidance those cases provide for the situation here, the Muse factors "represent a reasonable framework for balancing the due process interests at stake[.]" Muse, 409 F. Supp. 3d at 715 n.3 (quoting Portillo v. Hott, 322 F. Supp. 3d 698, 707 (E.D. Va. 2018) ). Applying them is the "obvious intra-district trend," and there remains "no good reason to buck th[e] trend." Abdirizak Mohamed A., 2020 WL 1062913, at *3.
1 Although the Government does not address the application of the Muse factors in its objections, those factors, considered together, show that Pedro's continued detention without a bond hearing violates due process. First, the length of Pedro's detention—now more than 13 months—favors granting relief because it far outstrips the brief period contemplated in Demore. Courts have found even shorter periods to be unreasonable under the Due Process Clause. See R&R at 8 (collecting cases). Second, the likely duration of Pedro's future detention is somewhat difficult to discern at this point, but it at least slightly favors relief. If Pedro prevails at the BIA, he will still be under a deferred order of removal, and it is not clear from the record that he would immediately be released. If the Government prevails, Pedro may seek review in the Eighth Circuit. See Muse, 409 F. Supp. 3d at 717 (noting that such review could take "another year"). Either way, some indeterminate period of future detention seems likely. Third, the conditions of Pedro's detention favor granting relief because, as the Parties agree, the county jail where he is being held is "indistinguishable from penal confinement." Id. ; see Liban M.J. v. Sec'y of Dep't of Homeland Sec., 367 F. Supp. 3d 959, 964 (D. Minn. 2019). The fourth factor—delays caused by Pedro—weighs in favor of relief because the record shows only that he has pursued good-faith defenses to removal. See Liban M.J., 367 F. Supp. 3d at 965 (explaining that such defenses "cannot undermine [a petitioner's] claim that detention has become unreasonable"). To be sure, the fifth factor weighs against relief because the Government has not engaged in any dilatory or otherwise unreasonable conduct. And the sixth factor is neutral because, like in Muse, the record does not provide a "sufficient basis to determine whether" Pedro is ultimately "likely to be removed." Muse, 409 F. Supp. 3d at 718. On balance, however, the scales tip toward Pedro. The Due Process Clause does not permit the Government to continue detaining him without an individualized determination that such detention is necessary.
III
Having determined that there is a constitutional violation, the remaining question is what to do about it. The Parties seem to agree that if any relief is warranted, it is a bond hearing before an immigration judge, not immediate release or an evidentiary hearing in federal court. That conclusion will not be revisited here. The primary dispute is over whether to impose a burden and standard of proof that will govern in Pedro's bond hearing and, if so, what that burden and standard should be. Pedro argues, and the R&R concluded, that it is appropriate for a federal court to reach this question, that the Government should bear the burden of proof, and that the standard should be clear and convincing evidence. Pet. ¶ 87; Petr.’s Resp. at 5–12; R&R at 25. The Government has essentially two responses. First, it says that addressing these issues before any hearing has occurred would be premature. Gov't Objs. at 5–7. Second, it argues that placing the burden on Pedro to show that his release is warranted would be consistent with due process. Id. at 7–10.
A
Several courts in this District have decided to leave all questions concerning the appropriate procedure for a bond hearing under § 1226(c) to the immigration judge in the first instance. See, e.g., Deng Chol A. v. Barr, 455 F. Supp. 3d 896, 904–05 (D. Minn. 2020) ; Bolus A.D. v. Sec'y of Homeland Sec., 376 F. Supp. 3d 959, 963 (D. Minn. 2019) ; Muse, 409 F. Supp. 3d at 718. These decisions express a prudential concern: when no bond hearing has yet occurred, it may be premature to "prospectively [ ] order an immigration judge to adhere to a specific standard of proof" because "no injury has occurred that is attributable to an incorrectly assigned burden and standard of proof." Bolus A.D., 376 F. Supp. 3d at 963. On the other hand, at least one court in this District has addressed the burden issue before any bond hearing was held, concluding that "federal courts are best equipped to resolve questions of this nature." Marco A. C.-P. v. Garland, No. 20-cv-1698 (JRT/TNL), 2021 WL 1976132, at *5 (D. Minn. May 18, 2021) (citing Santosky v. Kramer, 455 U.S. 745, 755–56, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ). And at least one other has addressed the burden issue after a petitioner won habeas relief, was ordered detained at a bond hearing, and then returned to federal court on a new habeas petition. See Omar M. v. Garland, No. 20-cv-1784 (NEB/BRT) (D. Minn.), ECF No. 27 at 12–15. Numerous other courts around the country have addressed the appropriate burden and standard of proof for yet-to-occur bond hearings without expressing any qualms about doing so. See R&R at 19–20 (collecting cases).
In Marco A. C.-P. , there was some legal ambiguity over whether the petitioner was detained under 8 U.S.C. § 1226 or § 1231(a). 2021 WL 1976132, at *2. That issue did not seem to have any impact on the court's decision to address the appropriate burden of proof at the bond hearing.
The concerns driving cases like Deng Chol A. and Bolus A.D. are well-taken. In the abstract, it makes sense to leave procedural questions like these to the immigration judge in the first instance. Doing so allows the parties to fully develop a record for later review, minimizes interference with agency processes, and avoids a judicial ruling that might prove unnecessary (if, for example, a petitioner is released under whatever procedures the immigration judge might choose to follow). Cf. Kappos v. Hyatt, 566 U.S. 431, 438–39, 132 S.Ct. 1690, 182 L.Ed.2d 704 (2012) (describing the reasons that courts typically require the exhaustion of administrative remedies).
In this particular situation, however, punting the question would not serve these interests. First, requiring Pedro to raise his burden-of-proof argument to the immigration judge in the first instance would be "an exercise in futility." Omar M., No. 20-cv-1784, ECF No. 27 at 15; cf. Bartlett v. U.S. Dep't of Agric., 716 F.3d 464, 472–73 (8th Cir. 2013) (stating the general rule that a litigant need not exhaust administrative remedies when it would be futile to do so). As noted above, because § 1226(c) does not contemplate bond hearings, neither the statute nor its implementing regulations provide procedures for such hearings. It seems virtually certain—and the Government does not dispute—that an immigration judge asked to hold a bond hearing under § 1226(c) will fill this vacuum with the most analogous procedures available: those governing bond hearings under § 1226(a). In fact, as Magistrate Judge Menendez observed, immigration judges seem to "believe themselves prohibited" by BIA precedent from considering other options. R&R at 18; see Pet., Ex. O at 3 & n.2; Br. of Amicus Curiae at 16–18 [ECF No. 9]. That's because BIA precedent requires immigration judges to place the burden on the detainee in a bond hearing under § 1226(a). See Matter of Guerra, 24 I. & N. Dec. 37 (B.I.A. 2006) ; Matter of Adeniji, 22 I. & N. Dec. 1102, 1106 (B.I.A. 1999). Second, addressing the burden of proof here would not jump the gun. In this context, determining the appropriate burden and standard of proof is best understood, not as providing prospective relief for, or preventing, a future injury, but as fashioning the appropriate constitutional remedy for an injury that has already occurred—namely, an unconstitutionally prolonged, bond-hearing-less detention. The bottom line is that, under these specific circumstances, fully resolving Pedro's petition requires determining what standards should govern at his bond hearing.
B
23 That leaves two questions: who should bear the burden of proof at Pedro's bond hearing, and what standard of proof should apply? Consistent with the "flexible" nature of due process, courts determining the appropriate burden and standard of proof for a particular setting should consider three factors: (1) the private interest at stake; (2) the "risk of an erroneous deprivation of such interest"; and (3) the government's interests, including any potential "fiscal and administrative burdens" imposed by a given procedure. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ; see Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). A standard of proof "serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision." Addington, 441 U.S. at 423, 99 S.Ct. 1804. Magistrate Judge Menendez concluded that the Government should bear the burden to show by clear and convincing evidence that Pedro's release "would present a danger to the community or a risk of nonappearance." R&R at 23–24. Under relevant Supreme Court precedent and persuasive circuit-court and district-court decisions, this is the better answer.
First, the private interest—Pedro's interest in avoiding prolonged and unwarranted confinement—is substantial. "[C]ivil commitment for any purpose constitutes a significant deprivation of liberty[.]" Addington, 441 U.S. at 425, 99 S.Ct. 1804 ; see Zadvydas v. Davis, 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) ("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."). Because of the serious nature of the deprivation, courts generally assign to the Government the burden to justify detaining an individual. See Addington, 441 U.S. at 426, 432–33, 99 S.Ct. 1804 (1979) ; Foucha v. Louisiana, 504 U.S. 71, 75–76, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) ; cf. United States v. Salerno, 481 U.S. 739, 751, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (upholding a statute authorizing pretrial detention of criminal defendants). And the standard of proof generally must be more than a preponderance of the evidence—though how much more depends on the nature of the proceedings. See Addington, 441 U.S. at 427–31, 99 S.Ct. 1804 (distinguishing between criminal and civil proceedings and requiring a showing of clear and convincing evidence in the civil-commitment context).
The substantial private interest in avoiding imprisonment informs how courts evaluate the second factor: the risk of an erroneous detention. Most civil proceedings involve fights over money or some other social or economic interest, and in that context, "it makes sense to allocate the risk of error evenly between the two parties." German Santos v. Warden Pike Cnty. Corr. Facility, 965 F.3d 203, 213 (3d Cir. 2020) (citing Addington, 441 U.S. at 423, 99 S.Ct. 1804 ). When an individual's physical liberty is at stake, the balance shifts. Even when the Government is pursuing legitimate interests, it must bear a heightened burden because "the possible injury to the individual is significantly greater than any possible harm to the state." Addington, 441 U.S. at 427, 99 S.Ct. 1804 ; cf. Santosky v. Kramer, 455 U.S. 745, 768, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (applying the same principle in a case involving the termination of parental rights).
4 Finally, this case undoubtedly involves legitimate and weighty Government interests. The Supreme Court has long recognized Congress's broad authority over immigration, e.g., Kleindienst v. Mandel, 408 U.S. 753, 769–70, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972), and, as a general matter, "[d]etention during removal proceedings is a constitutionally permissible part of th[e] process," Demore, 538 U.S. at 531, 123 S.Ct. 1708. Detaining an individual who is under threat of deportation helps ensure that the individual will appear at future proceedings and will not pose any danger to the community in the meantime. And in Congress's judgment, it is particularly important to detain aliens who have been convicted of certain criminal offenses. Id. at 517–18, 123 S.Ct. 1708 (describing the legislative history of § 1226(c) ). Any decision concerning the appropriate burden and standard of proof must adequately account for these interests.
The Government faults the R&R for not applying the three factors from Mathews . Gov't Objs. at 7. But the R&R clearly had all three factors at top of mind. It acknowledged Pedro's interest in avoiding unwarranted imprisonment, the Government's interest in ensuring the safety of the community and Pedro's appearance at future proceedings, and the need to properly allocate the "risk of error." R&R at 23–27. It also relied on case law citing and applying Mathews . See, e.g. , German Santos , 965 F.3d at 213.
When asked to balance these factors, an overwhelming majority of courts have held that the Government must justify the continued confinement of an alien under § 1226(c) by clear and convincing evidence. See, e.g., German Santos, 965 F.3d at 213–14 ; R&R at 19–20 (collecting cases). This reasonable conclusion is supported by the Supreme Court's treatment of civil detention in other contexts. The private interest in avoiding confinement is among the greatest there is. See Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491 ; Addington, 441 U.S. at 425, 99 S.Ct. 1804. Section 1226(c) ’s categorical approach to mandatory detention creates a risk that the statute will sweep up persons who do not, in fact, pose a risk of flight or danger to the community. Given the Government's legitimate interest in facilitating removal proceedings for criminal aliens, due process tolerates that risk for a reasonable period of time. See Demore, 538 U.S. at 529–31, 123 S.Ct. 1708. Once the detention becomes so prolonged as to be unreasonable, however, it may not continue unless the Government shows that it is necessary. And at that point, it is no longer appropriate to allocate the risk of error evenly between the parties. See German Santos, 965 F.3d at 213–14.
Requiring the Government to meet this burden in Pedro's case is unlikely to add a significant administrative burden or undermine the Government's ability to vindicate § 1226(c) ’s purposes. The Government and immigration courts are familiar with the clear-and-convincing evidence standard. See, e.g., Woodby v. Immigr. & Naturalization Serv., 385 U.S. 276, 286, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966) (requiring this standard in deportation proceedings). And the Government already has easy access to information that is likely to bear on the question whether Pedro poses a risk of flight or danger to the community—most notably, his criminal and mental-health history and information concerning his behavior and conduct during detention. By contrast, assigning the burden to Pedro would put him in the difficult position of proving negatives.
The Government raises reasonable arguments that warrant discussion but do not change the result. First, the Government points out that most courts assigning the clear-and-convincing-evidence burden to the Government in this context have relied on the Supreme Court's jurisprudence concerning the civil commitment of persons with mental illnesses. According to the Government, the analogy between civil-commitment proceedings and immigration-detention proceedings is inapt. See Gov't Resp. to Amicus Br. at 13–14 [ECF No. 14]. This is a fair point. There are significant differences between the civil-commitment system and the immigration system. See generally Mark Noferi, Making Civil Immigration Detention "Civil," and Examining the Emerging U.S. Civil Detention Paradigm, 27 J. Civ. Rts. & Econ. Dev. 533, 549–51 (2014) (describing some of these differences). Moreover, Congress, "in the exercise of its broad power over immigration and naturalization, ... regularly makes rules that would be unacceptable if applied to citizens." Reno v. Flores, 507 U.S. 292, 305–06, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (internal quotation marks and citation omitted). Nonetheless, the Supreme Court has made clear that the Due Process Clause protects non-citizens, Zadvydas, 533 U.S. at 693, 121 S.Ct. 2491, and, on more than one occasion, the Court itself has cited cases from one context to support propositions in another. See id. at 690, 121 S.Ct. 2491 (citing Foucha, 504 U.S. at 80, 112 S.Ct. 1780 ); Addington, 441 U.S. at 424, 99 S.Ct. 1804 (citing Woodby, 385 U.S. at 285, 87 S.Ct. 483 ). The implication is that, at least for the limited purpose of the addressing the due-process issues at play here, civil detention is civil detention.
The Government also argues that Addington and similar cases involved indefinite civil commitment, while detention under § 1226(c) has a definite end date—i.e. , a final removal order or a final decision favorable to the alien. This distinction works well in theory, but it misses a crucial practical point: unconstitutional § 1226(c) detentions are already unreasonably prolonged and are unlikely to have an identifiable end date in sight.
Next, the Government responds that, in bond hearings under § 1226(a), non-criminal aliens bear the burden to prove the lack of a flight risk or danger to the community. Gov't Resp. to Amicus Br. at 18. Adopting the R&R's conclusion, it says, would put criminal aliens in a more favorable position than non-criminal aliens. Id. At least one circuit court has found this reasoning persuasive. See Sopo v. U.S. Att'y Gen., 825 F.3d 1199, 1219–20 (11th Cir. 2016), vacated, 890 F.3d 952, 953 (11th Cir. 2018) (per curiam). But there are problems with the Government's argument. Non-criminal aliens subject to discretionary detention under § 1226(a) enjoy a crucial procedural protection that criminal aliens do not. They can obtain a bond hearing immediately at the outset of their detention. See 8 C.F.R. §§ 1003.19(a), 1236.1(d)(1). Then, if they are denied release, they may seek additional bond hearings if they can show that facts have changed. Id. § 1003.19(e). The argument also presumes that the bond hearing procedures under § 1226(a) remain constitutional even when an alien's discretionary detention becomes unreasonably prolonged. At least one circuit court has held that they do not. See Velasco Lopez v. Decker, 978 F.3d 842, 845–46 (2d Cir. 2020) (ordering a new bond hearing for an alien unconstitutionally detained under § 1226(a) at which the government would have to bear the burden of proof by clear and convincing evidence). In short, the comparison to non-criminal aliens is not as significant as the Government suggests.
Finally, the Government points to the Eighth Circuit's decision in Mohamed v. Gonzales, 477 F.3d 522, 526 (8th Cir. 2007), which it says "generally affirm[s] the adequacy of the administrative process" available to ICE detainees. Gov't Objs. at 8. Mohamed does not have anything to say about the issues in this case. There, an alien petitioned for review of a final removal order, challenging provisions of the REAL ID Act that eliminated the availability of the writ of habeas corpus and required a court of appeals to limit its review to the "administrative record on which the order of removal is based." Id. at 525 (citing 8 U.S.C. § 1252(a)(5), (b)(4)(A) ). According to the petitioner, those provisions violated the Suspension Clause of the Constitution because they did not leave him with an adequate remedy to test the legality of his detention. See id. at 525–26. The court rejected this argument, holding that a different provision of the statute, 8 U.S.C. § 1252(a)(2)(D), provided "a remedy as broad in scope as a habeas petition" because it allowed a court to "review all constitutional claims and questions of law in the removal order." Id. at 526. In other words, the case did not address what procedures the Constitution may require in a bond hearing after an unconstitutionally prolonged detention under § 1226(c). It did not involve a detention under § 1226(c) at all.
In sum, considering the unsettled nature of the legal questions in this case, the available legal authorities, and the interests at stake, the better answer is that Pedro is entitled to a bond hearing in immigration court at which the Government must justify his ongoing detention. To do so, the Government must show by clear and convincing evidence that Pedro poses either a risk of flight or a risk of danger to the community.
Pedro also requested an order directing the immigration judge to consider his ability to pay when deciding whether he should be released on bond. Pet. at 35 ¶ 7. Magistrate Judge Menendez recommended denying this request because BIA precedent governing bond hearings under § 1226(a) already seems to require immigration judges to consider a detainee's ability to pay. R&R at 27–28. Neither Party objects to this recommendation, and it will be adopted.
ORDER
Based on the foregoing, and on all the files, records, and proceedings in the above-captioned matter, IT IS ORDERED that:
1. Respondents’ Objections to the Report and Recommendation [ECF No. 27] are OVERRULED.
2. The Report and Recommendation [ECF No. 25] is ACCEPTED.
3. The Petition for a Writ of Habeas Corpus [ECF No. 1] is GRANTED IN PART and DENIED IN PART as follows:
a. Petitioner's requests for immediate release, for a bond hearing in this Court, and for an order requiring an immigration court to consider his ability to pay are DENIED.
b. Within 21 days of this Order, Respondents must ensure that Petitioner receives an individualized bond hearing before an immigration judge. If no bond hearing occurs, then Petitioner must be released absent further order of this Court.
c. At the bond hearing, the Parties must be allowed to present evidence and argument concerning whether Petitioner is a danger to the community and whether he is likely to flee if he is not detained. The immigration judge must place the burden of proof on the Government, and continued detention must only be authorized if the Government meets its burden with clear and convincing evidence.
LET JUDGMENT BE ENTERED ACCORDINGLY.
REPORT AND RECOMMENDATION
Katherine Menendez United States Magistrate Judge
This matter is before the Court on Pedro O.’s1 Petition for Writ of Habeas Corpus brought under 28 U.S.C. § 2241. Pet., ECF 1. Mr. O asserts that he is currently being held in the custody of immigration authorities pending the completion of removal proceedings and his continued detention violates the Due Process Clause of the Fifth Amendment. He seeks immediate release from Kandiyohi County Jail, or in the alternative, asks the Court to hold a bond hearing or to direct Respondents to hold a bond hearing. Pet., Prayer for Relief ¶¶ 6–7. If the Court requires a bond hearing, Mr. O further requests that the government be required to bear the burden of proving, by clear and convincing evidence, that Mr. O is a danger to the community or a flight risk in order for his detention to lawfully continue. Id. , Prayer for Relief ¶ 7. In addition, at any bond hearing ordered by the Court, he also asks that Respondents be required to consider his ability to pay in setting any bond for his release. Id. For the reasons that follow, the Court recommends that the Petition be granted in part.
I. Background
Mr. O is a Mexican native and citizen who has lived in the United States for twenty-four years. Pet. ¶ 1; Decl. of James L. Van der Vaart ("Van der Vaart Decl.") ¶ 4, ECF 13. On May 17, 2017, Woodbury Police arrested Mr. O for criminal sexual conduct. Van der Vaart Decl. ¶ 5. Shortly thereafter, immigration authorities lodged a detainer with the jail where Mr. O was being held. Van der Vaart Decl., Ex. 1 at 5–6. On May 19, 2017, Immigration and Customs Enforcement ("ICE") officials took custody of Mr. O after a probable-cause hold on the State charges expired, but ICE released Petitioner on bond at that time. Id. ¶¶ 6–7 & Ex. 1 at 1, 3, 5–6.
On September 27, 2017, Mr. O was charged by criminal complaint in Washington County with first-degree criminal sexual conduct under Minn. Stat. § 609.342(a)(1). Pet., Ex. H at 7–10. On August 23, 2018, the Washington County District Court found Mr. O was not competent to stand trial due to mental illness. Id. , Ex. H at 11–15. Mr. O was also civilly committed by the State of Minnesota in June 2018, and again in August 2018. Id. ¶¶ 35–36. Nearly a year after the second civil commitment, on September 16, 2019, the State court again found that Petitioner was not competent to stand trial. Id. , Ex. K at 4. Finally, on March 4, 2020, Mr. O was found competent to stand trial. He entered a guilty plea the same day. The plea agreement proposed a 172-month sentence with a stay of execution and credit for time served; a no-contact order with the victim; a requirement that Mr. O register as a predatory offender; and up to 25 years of supervised probation. Id. , Ex. H at 16–19. On May 4, 2020, the Washington County Court imposed a sentence essentially adopting the plea agreement. Id. , Ex. H at 20–23. The same day the sentence was imposed, Mr. O was taken into custody by ICE officers. Id. , Ex. I at 2. He has been in immigration detention continuously since May 4, 2020.
On September 24, 2020, during Mr. O's deportation proceedings, an immigration judge ("IJ") granted his application for deferral of removal under the Convention Against Torture. Id. , Ex. L. On September 29, 2020, ICE appealed the IJ's decision to the Board of Immigration Appeals ("BIA"). Id. , Ex. M. At the time of this Court's March 9, 2021 hearing on the habeas petition, ICE's appeal to the BIA remained pending, though briefing before the BIA was complete in October 2020. Resp. to Pet. at 4, ECF 12.
When Mr. O filed his habeas petition on December 18, 2020, he had been in ICE custody for almost 7 months, and as of today that period of detention is 3 weeks shy of a full year. Throughout his immigration detention, Petitioner has been held in the Kandiyohi County Jail. Pet. ¶ 56. Mr. O has not received a bond hearing or any individualized determination of whether his continued detention is necessary to ensure the safety of the community or his availability for removal from the United States.
II. Legality of Continued Detention
The parties first dispute whether Mr. O's continued detention is permissible under the Due Process Clause of the Fifth Amendment. The Court concludes that it is not.
District courts have the power to grant writs of habeas corpus. 28 U.S.C. § 2241(a). This power includes jurisdiction to hear habeas challenges to immigration-related detention. Zadvydas v. Davis , 533 U.S. 678, 687, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). Though Congress has limited judicial review of certain immigration-related detention decisions, see 8 U.S.C. § 1226(e), a person may nonetheless raise a constitutional challenge to the length of pre-removal immigration detention in a habeas corpus proceeding. Demore v. Kim , 538 U.S. 510, 517, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) ; Zadvydas , 533 U.S. at 688, 121 S.Ct. 2491.
During the pendency of removal proceedings, "most aliens may be released on bond or paroled." Zadvydas , 533 U.S. at 683, 121 S.Ct. 2491 (citing 8 U.S.C. § 1226(a)(2) ). However, under 8 U.S.C. § 1226(c), the Attorney General is required to take into custody a noncitizen who has been convicted of a crime qualifying as an "aggravated felony." Mr. O falls into this category of persons subject to mandatory detention pending completion of removal proceedings.2 Though § 1226(c) requires Mr. O's detention, the Due Process Clause of the Fifth Amendment limits the government's power to detain an individual under the immigration laws. In Demore , the Supreme Court held that the mandatory detention authorized under 8 U.S.C. § 1226(c) is facially constitutional because the Court found that such detention typically only lasts for a "brief period" needed to conduct removal proceedings. 538 U.S. at 513, 528–31, 123 S.Ct. 1708. However, prolonged detention pursuant to § 1226(c) presents due process concerns. Id. at 532–33, 123 S.Ct. 1708 (Kennedy, J., concurring) (stating that an individualized determination of whether a person's custody under § 1226(c) serves the purpose of the statute may be necessary "if the continued detention became unreasonable or unjustified" by virtue of its duration).
Since Demore , courts within this District, including this Court, have held that prolonged mandatory detention under § 1226(c), without an individualized determination that a detainee presents a risk of flight or a danger to the community, may violate the Due Process Clause of the Fifth Amendment. See, e.g. , Bolus A.D. v. Secretary of Homeland Security , No. 0:18-cv-1557 (WMW/KMM), Doc. No. 33, 2019 WL 1905848 (D. Minn. Feb. 11, 2019) (report and recommendation concluding that an alien detained pursuant to § 1226(c) for over 13 months was entitled to a bond hearing), R&R adopted in part by 376 F. Supp. 3d 959 (D. Minn. 2019) ; see also Liban M.J. v. Sec'y of Dep't of Homeland Sec. , 367 F. Supp. 3d 959 (D. Minn. 2019) ; Abshir H.A. v. Barr , No. 19-cv-1033 (PAM/TNL), 2019 WL 3719414 (D. Minn. Aug. 7, 2019) ; Omar M. v. Barr , No. 18-cv-2646 (JNE/ECW), 2019 WL 3570790 (D. Minn. May 6, 2019), R&R adopted by 2019 WL 2755937 (D. Minn. July 2, 2019) ; Tao J. v. Sec'y of Dep't of Homeland Sec. , No. 18-cv-1845 (NEB/HB), 2019 WL 1923110 (D. Minn. Apr. 30, 2019) ; Abdulkadir A. v. Sessions , No. 18-cv-2353 (NEB/HB), 2018 WL 7048363 (D. Minn. Nov. 13, 2018), R&R adopted by 2019 WL 201761 (D. Minn. Jan. 15, 2019) ; Jamal A. v. Whitaker , 358 F. Supp. 3d 853 (D. Minn. 2019) ; Mohamed v. Sec'y, Dep't of Homeland Sec. , No. 17-cv-5055 (DWF/DTS), ––– F.Supp. 3d ––––, 2018 WL 2392205 (D. Minn. Mar. 26, 2018), R&R adopted by 376 F.Supp.3d 950 (D. Minn. 2018) ; Muse v. Sessions , 409 F. Supp. 3d 707 (D. Minn. 2018). These decisions require an examination of several factors to determine whether prolonged detention under § 1226(c) in any particular case runs afoul of the Constitution.
Respondents suggest that Mr. O's continued detention under § 1226(c) is constitutional regardless of its duration because (1) the statute's mandatory detention scheme was found facially constitutional in Demore ; (2) the Supreme Court in Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 200 L.Ed.2d 122 (2018), rejected an interpretation of § 1226(c) that required periodic bond hearings;3 and (3) the policy justifying mandatory detention for certain removable immigrants does not change over time. Resp. at 8–12.4 However, these same arguments have been repeatedly raised and rejected in similar cases. Respondents have presented no reason to revisit the conclusion—reached in decision after decision in this District—that prolonged detention under § 1226(c) is subject to limits based on the Due Process Clause. See Abdullahi J. v. Barr , No. 19-cv-2998 (PAM/KMM), Doc. 25 at 11–12 (D. Minn. Mar. 2, 2020) (declining to reconsider the conclusion of numerous courts within the District of Minnesota that the Due Process Clause places limits on prolonged mandatory detention under § 1226(c) ).
In line with this precdent, the Court will apply the multi-factor test adopted in Muse for determining whether an individual's § 1226(c) detention is consistent with due process. The following factors are relevant to this analysis:
(1) the total length of detention to date; (2) the likely duration of future detention; (3) the conditions of detention; (4) delays of the removal proceedings caused by the detainee; (5) delays of the removal proceedings caused by the government; and (6) the likelihood that the removal proceedings will result in a final order of removal.
Muse , 409 F. Supp. 3d at 715.
At the hearing, Respondents criticized the multi-factor approach laid out in Muse . In Respondents’ view, the analysis hinges only on the length of detention, and the other factors are largely irrelevant. It is true that "courts have described the first factor, which looks at the length of detention, as the most important." Portillo v. Hott , 322 F. Supp. 3d 698, 708 (E.D. Va. 2018). But this does not render the Muse test a multi-factor consideration in name only. The problem identified by Respondents—that other factors in the Muse test cut the same way in most cases—does not mean it is not a multi-variable analysis. Moreover, the fact that many cases have similar relevant facts is at least in part due to the government's own conduct. For example, the conditions-of-detention factor considers the degree to which an immigrant's confinement resembles criminal confinement. In habeas cases like this one, this factor is consistently weighed against the government because it uniformly detains immigrants under § 1226(c) in county jails alongside those awaiting trial on criminal charges or serving criminal sentences. If the government elected to carry out § 1226(c) detention differently, the third factor identified in Muse may receive different weight. The Respondents’ suggestion that the Muse test is nothing more than a consideration of the length of detention is not persuasive.
Length of Detention
The length of Mr. O's detention in this case favors granting relief. He has been in custody since May 4, 2020. As of the date of this decision, he has been in custody for 347 days or 11 months and one week (as of April 16, 2021) without any individualized consideration of whether he poses a danger to the community or is a flight risk.
As noted in Muse , detentions for similar and even shorter periods "have been found unreasonable under the Due Process Clause." Muse , 409 F. Supp. 3d at 716 (citing Sajous v. Decker , No. 18-cv-2447, 2018 WL 2357266, at *1, *7 (S.D.N.Y. May 23, 2018) (eight months); Jarpa v. Mumford , 211 F. Supp. 3d 706, 710, 717 n.6 (D. Md. 2016) (ten months); Gordon v. Shanahan , No. 15-cv-261, 2015 WL 1176706, *3–4 (S.D.N.Y. March 13, 2015) (eight months)); see also Graham v. Decker , 20 Civ. 3168 (PAE), 2020 WL 3317728, at * 5 (S.D.N.Y. June 18, 2020) (ten months).
Respondents correctly point out that often longer periods of detention are at issue in cases such as this, but the Court disagrees with Respondents’ contention that the length of detention here "does not weigh in favor of relief." Resp. at 19 (citing German Santos v. Warden Pike County Corr. Facility , 965 F.3d 203 (3d Cir. 2020) (concluding that a two-and-a-half-year detention was unreasonable). There is no hard-and-fast rule that detention less than a certain duration is reasonable or that beyond that threshold will always be unreasonable. But the duration of average detentions characterized by the Supreme Court as "brief" in Demore supports this Court's conclusion that the 11 month detention at issue here is too long. In Demore , the Supreme Court was persuaded that mandatory detention under § 1226(c) is facially constitutional in large part because the majority of cases involve only a "brief period" of detention between 1.5 and 5 months, on average. 538 U.S. at 529, 123 S.Ct. 1708 (relying on data suggesting that in 2003 § 1226(c) detention lasted for less than 90 days in the majority of cases, that removal proceedings were completed in 85% of cases in an average of 47 days, and that in the remaining 15% of cases where an appeal was taken, the appeal lasted an average of four months). Though there is reason to doubt the accuracy of the statistics provided to the Demore Court,5 Mr. O's detention has already been more than double the length of detention that was considered "brief." Notwithstanding Respondents’ suggestion to the contrary, 11 months is an unreasonable amount of time for an individual to be held in custody without an individualized determination of whether his detention is necessary to serve the government's legitimate interests.
For these reasons, the first factor weighs in favor of granting Mr. O's request for a bond hearing.
Likely Duration of Future Detention
The likely duration of Mr. O's future detention also weighs in favor of granting habeas relief. The government's appeal of the immigration judge's decision that Mr. O should be released remains pending at the BIA. The government cannot remove Mr. O from the United States unless that appeal is resolved in its favor, and it will not release Mr. O while the appeal remains pending. Even if Mr. O ultimately prevails on the government's BIA appeal, it is likely that a resolution of his immigration proceedings could take several more months. Such additional detention without an individualized consideration of the confinement's necessity is unreasonable. This factor weighs in favor of granting Mr. O's request for habeas relief.
Conditions of Detention
The third factor also weighs in favor of Mr. O's habeas petition. As noted above, the Court considers whether the conditions of Mr. O's detention resemble "penal confinement"; the more they do, "the stronger his argument that he is entitled to a bond hearing." Muse , 409 F. Supp. 3d at 717 (citing Chavez-Alvarez v. Warden York Cty. Prison , 783 F.3d 469, 478 (3d Cir. 2015) ). "As the length of the detention grows, the weight given to this aspect of [Mr. O's] detention increases." Id. (internal quotation marks and alterations omitted). Mr. O has been detained in a county jail along with individuals serving criminal sentences and awaiting criminal trials for over ten months. The Respondents "question this factor's relevancy to a proper due process analysis," but they do not say why. Resp. at 20. Locking a person up in penal confinement is precisely the kind of consideration that raises due process concerns; indeed, it is one of the greatest impositions on individual liberty that our society permits. And detention resembling criminal punishment entitles a person to greater procedural protections. The Respondents do agree, however, that Mr. O has been detained in a criminal correctional facility throughout his confinement. Because Mr. O's detention is indistinguishable from penal confinement, this factor weighs heavily in his favor given the length of his detention.6
Delays Caused by Mr. O
The fourth factor—whether delays of the removal proceedings have been caused by Mr. O—also weighs in favor of granting relief. Mr. O raised a legitimate defense to his removal, as evidenced by the fact that the immigration judge granted his request to avoid removal under the CAT. However, this factor does not hold the additional time litigating "avenues of relief that the law makes available to him" against an immigration detainee. Ly v. Hansen , 351 F.3d 263, 272 (6th Cir. 2003). The record here shows that Mr. O has not engaged in any dilatory tactics or taken any improper or obstructive steps to thwart either a final decision in his case or his removal, and the government does not suggest otherwise.
Delays Caused by the Government
The Court next considers delays of the removal proceedings caused by the government. " ‘Continued detention will also appear more unreasonable when the delay in proceedings was caused by the immigration court or other non-ICE government officials.’ " Muse , 409 F. Supp. 3d at 717–18 (quoting Sajous , 2018 WL 2357266, at *11 ). Here, there is no evidence that the government has engaged in dilatory tactics and Mr. O does not argue that it has. Accordingly, this factor does not weigh in favor of Mr. O's petition.
The Respondents suggest that the Court should largely eschew the Muse factors and, instead, focus only on whether the government has acted unreasonably. Resp. at 18–19 (advocating for denial of habeas relief where "the case is proceeding efficiently through the immigration courts, and the government has not caused unreasonable delay"). Though phrased differently, this argument is akin to a suggestion that habeas relief may only be available if the government has acted in bad faith, regardless of the length of detention at issue. The Court finds this argument as unavailing now as it was when the government relied on it in Muse, 409 F. Supp. 3d at 713–15 (rejecting the government's argument that due process places no limitation on the length of detention under § 1226(c) where the government acts in good faith based on the reasoning of Demore and Zadvydas ). In fact, in an Order addressing the petitioner's request for attorney's fees under the Equal Access to Justice Act, the Muse court found that such a position was not substantially justified. Muse v. Barr ("Muse II "), No. 18-CV-0054 (PJS/LIB), 2019 WL 4254676, at *2–4 (D. Minn. Sept. 9, 2019).
In sum, the government's position—that, as long as the government does not act in bad faith, an alien detained under § 1226(c) is never entitled to a bond hearing, no matter how long he is detained—was not substantially justified. That position has not been accepted by a single court, and it cannot be squared with Jennings and Zadvydas .
Id. at *3. This rationale did not justify the government's opposition to the petition in Muse , and it does not justify continued denial of a bond hearing for Mr. O. Moreover, the Court notes that the test applied in Muse already takes into account whether the government's conduct has been dilatory or has otherwise unnecessarily prolonged the individual's detention. Where it has not, courts do not hold that factor against the government. See, e.g. , German Santos v. Warden Pike Cty. Corr. Fac. , 965 F.3d 203, 212 (3d Cir. 2020) (explaining that the government's "alleged errors" in considering the petitioner's underlying conviction an aggravated felony and requiring remand to the BIA for further consideration "are not the kind of careless or bad-faith mishaps that we hold against the Government"). The Court does not weigh the government's conduct in Mr. O's case against it, but strongly disagrees with the suggestion that, in the absence of misconduct by any government actor, due process is satisfied.
Likelihood of a Final Order of Removal
The last factor is the likelihood that the removal proceedings will result in a final order of removal. The Court finds that this factor weighs neither in favor of nor against Mr. O's request for habeas relief. The fact that Mr. O obtained a favorable decision from the immigration judge suggests that he could very well prevail on the government's appeal to the BIA. In that event, a removal order would not be forthcoming, and Mr. O's detention would be even less justified without some individualized consideration of dangerousness or flight risk. However, the record before the Court provides no firm basis on which to predict the outcome of the government's BIA appeal, and the Court would likely be getting in over its head were it to attempt to do so. Accordingly, the Court will not endeavor to determine whether Mr. O is likely to be deported at the conclusion of removal proceedings.
Conclusion
Based on the foregoing, the balance of the multi-factor test leans in Mr. O's favor and he should receive a bond hearing. See Muse , 409 F. Supp. 3d at 718 (requiring the immigration judge to conduct a bond hearing where the factors weighed in the petitioner's favor). Accordingly, the Court will recommend that he receive a bond hearing within 21 days of any Order adopting this Report and Recommendation.
In the petition, Mr. O seeks an order requiring his immediate release or, alternatively, that any bond hearing be held by the District of Minnesota rather than an immigration judge. The Court declines to recommend granting either of these requests. With respect to his request for immediate release, the Court notes that the remedy commonly adopted in cases like this one is an individualized bond hearing to ensure that any continued detention serves the purposes for which custody is required under § 1226(c)—protection of the public and ensuring a person will be available for removal. See, e.g. , Muse , 409 F. Supp. 3d at 718 (concluding that an individualized bond hearing would "protect both Muse's rights under the Due Process Clause and the government's legitimate interest in detaining a removable alien when such detention is necessary to serve the purposes of § 1226(c)"). This is consistent with Justice Kennedy's concurrence in Demore , which suggested that an individualized determination of flight risk and danger may be necessary "if the continued detention became unreasonable or unjustified." Demore , 538 U.S. at 531, 123 S.Ct. 1708 (Kennedy, J., concurring); see also Clerveaux v. Searls , 397 F. Supp. 3d 299, 308 n.3 (W.D.N.Y. 2019) (explaining that in a procedural due process challenge to continued detention the court "considers only whether—seventeen months into Clerveaux's detention—the government must finally demonstrate to someone that there is some evidence that Clerveaux's detention serves some purpose"). Although the Court does not suggest that an order for immediate release could never be the appropriate habeas remedy for unconstitutionally prolonged detention under § 1226(c), such a remedy is not required in this case. Accordingly, the Court declines to recommend Mr. O's immediate release at this time, provided that the government complies with the recommendation that a bond hearing be held promptly.
The Court similarly concludes that, at this time, the proper forum for Mr. O's bond hearing is before an immigration judge rather than in this Court. Cases where habeas courts have addressed the issue are either distinguishable from this one, see Leslie v. Holder , 865 F. Supp. 2d 627 (M.D. Pa. 2012) (concluding that the court was obligated to conduct the bond hearing itself based on the law-of-the-case doctrine and the mandate from the Third Circuit Court of Appeals), or they deal only with the courts’ power to hold such a hearing, rather than grappling with the question of the proper forum for the hearing to occur, see Madrane v. Hogan , 520 F. Supp. 2d 654, 667–68 (M.D. Pa. 2007) (discussing the government's argument that the habeas court lacked the authority to hold a hearing to determine dangerousness and risk of flight); D'Allessandro v. Mukasey , No. 08-914, 2009 WL 799957, at *1–2 (W.D.N.Y. Mar. 25, 2009) (addressing the government argument that the court lacked authority "to entertain a bail application"). Assuming that this Court has the power to hold the bond hearing itself, these cases provide little support for deciding to do so under the specific circumstances of this case. Moreover, the Court notes that it has not been shown that an immigration judge assigned to Mr. O's case would be unable to make an unbiased decision regarding dangerous or risk of flight. Indeed, the immigration judge assigned to Mr. O's administrative proceeding already ruled in his favor on his CAT claim, suggesting that the immigration judge is not, in fact, biased against him. Accordingly, the Court declines to recommend that the individualized bond hearing for Mr. O be conducted by the Court.
The Respondents contest that the Court has such authority, Resp. at 38–39, but the Court need not decide this issue because it concludes that the proper forum for a bond hearing under the circumstances is before an immigration judge.
III. Bond Hearing Procedures
Mr. O finally argues that at any bond hearing, the government should bear the burden of proof and that his continued detention should not be authorized unless the government presents clear and convincing evidence of dangerousness or a flight risk. Pet. ¶¶ 64, 71–90. The Respondents argue that the procedures in place in immigration court are constitutionally valid and that Mr. O has not alleged a current due process violation that is traceable to the assignment of the burden of proof. Resp. at 21–38.
Having found that Mr. O is entitled to a bond hearing, the Court finds that due process requires the government to justify detaining an individual for over ten months pursuant to § 1226(c). The Court recommends that at Mr. O's bond hearing, the government should be required to bear the burden to prove, by clear and convincing evidence, that Mr. O's continued detention is necessary to protect the public or prevent the risk of flight.
Addressing the Burden Issue
It is true that in other cases similar to this one, both this Court and others within the District of Minnesota have hesitated to address questions about the burden and quantum of proof. See, e.g. , Abdullahi J. v. Barr , No. 19-cv-2998 (PAM/KMM), Doc. 25 at 17 (Mar. 2, 2020); Bolus A.D. , 376 F. Supp. 3d 959, 963 (D. Minn. 2019) ; Muse , 409 F. Supp. 3d at 718. However, for three reasons the Court now recommends that the burden of proof be placed on the government.
First, requiring Mr. O to first present his argument that due process requires the government to bear the burden of proving dangerousness and flight risk to the Immigration Judge at his bond hearing would be an exercise in futility. See Omar M. v. Garland , Case No. 20-CV-1784 (NEB/BRT), Doc. No. 27 at 15–16 (D. Minn. Mar. 29, 2021) (reasoning that shifting the burden to the government "avoids the exercise in futility that has been recurring over the last number of years in this District" and noting that "if this Court punts again, the IJ will again allocate the burden to O.M."). In part, the courts that have hesitated to address the burden issue have reasoned that the immigration judges should be permitted to decide the issue in the first instance. See, e.g. , Bolus A.D. , 376 F. Supp. 3d at 963 ; Muse , 409 F. Supp. 3d at 718. This reflected a deference to the responsible immigration authorities within the Executive Branch, inviting them to explore an important constitutional issue before the federal court weighed in. Bolus A.D. , 376 F. Supp. 3d at 963 ("The Court is not persuaded that due process requires this Court prospectively to order an immigration judge to adhere to a specific standard of proof at a bond hearing."). However, it has now become clear that immigration judges will not consider a detainee's claim that due process demands that the government bear a heightened burden at a bond hearing ordered by the Court. Indeed, the record in this case reveals that immigration judges believe themselves prohibited from considering the issue. Pet. ¶ 86, Ex. O at 3 & n.2 (citing, inter alia, Matter of Guerra , 24 I. & N. Dec. 37, 40 (BIA 2006), and 8 C.F.R. § 1236.1(c)(3) ).
As a result, it is a foregone conclusion that if Mr. O were to ask the immigration judge to properly allocate the burden in accordance with the Constitution, the immigration judge will place the burden on Mr. O, requiring him to prove that release would neither endanger the public nor risk his nonappearance for removal in order to be let out of the county jail on bond; the judge will not even consider whether doing so violates the Due Process Clause. Id. , Ex. O at 3 n.2 ("[I]n the absence of an explicit directive from the United States District Court Judge reversing the burden, the Court will apply the burden of proof set forth in 8 C.F.R. § 1236.1(c)(3) and binding BIA precedent."); Id. , Ex. P at 3 (immigration judge discussion regarding burden of proof at the bond hearing for a habeas petitioner whose § 1226(c) detention was deemed unconstitutional). This reality means that the courts of this District are the only avenue where this important constitutional question can be addressed. Cf. Joseph v. Decker , No. 18-cv-2640 (RA), 2018 WL 6075067, at *5–7 (S.D.N.Y. Nov. 21, 2018) (rejecting the government's request for a dismissal of a habeas petition challenging, in part, the allocation of the burden of proof at a supplemental bond hearing under 8 U.S.C. § 1226(a) because raising the issue to the immigration judge or the BIA would have been futile).
Second, the majority of courts across the country that have considered due process challenges to prolonged § 1226(c) detention have not only addressed the burden-of-proof issue, but have concluded that the government must bear the burden in a bond hearing for a noncitizen whose mandatory detention has been deemed unconstitutionally prolonged. See Jimenez v. Wolf , No. 19-CV-07996-NC, 2020 WL 510347, at *4 (N.D. Cal. Jan. 30, 2020) ; Favi v. Kolitwenzew , No. 20-cv-2087, 2020 WL 2114566, at *8 (C.D. Ill. May 4, 2020) ; Duncan v. Kavanagh , 439 F. Supp. 3d 576, 590 (D. Md. 2020) ; Tracey M.S. v. Decker , No. 20-cv-5146 (ES), 2020 WL 2316559, at *7 (D.N.J. May 11, 2020) ; Clarke v. Doll , 481 F. Supp. 3d 394 (M.D. Pa. Aug. 2020) ; Yagao v. Figueroa , No. 17-cv-2224-AJB-MDD, 2019 WL 1429582, at *4 (S.D. Cal. Mar. 29, 2019) ; Singh v. Choate , No. 19-cv-00909-KLM, 2019 WL 3943960, at *7 (D. Colo. Aug. 21, 2019) ; Reid v. Donelan , 390 F. Supp. 3d 201, 224 (D. Mass. 2019) ; Hernandez-Lara v. Immigration and Customs Enf't , No. 19-cv-394-LM, 2019 WL 3340697, at *4 (D.N.H. July 25, 2019) (noting, in a case addressing burden allocation in a bond hearing under 8 U.S.C. § 1226(a), that the "overwhelming majority of district courts" that have considered detention under § 1226(c) have placed the burden on the government to prove danger and flight risk by clear and convincing evidence); Ranchinskiy v. Barr , 422 F. Supp. 3d 789, 800 (W.D.N.Y. 2019) ; Doe v. Beth , No. 18-cv-1672, 2019 WL 1923867, at *4 (E.D. Wis. Apr. 30, 2019) ; Graham v. Decker , No. 20 CIV. 3168 (PAE), 2020 WL 3317728, at *8 (S.D.N.Y. June 18, 2020) ; Portillo v. Hott , 322 F. Supp. 3d 698, 709 (E.D. Va. 2018).
The Tracey M.S. court did not specify the quantum of proof required, but placed the burden of proof on the government.
The Reid court found the government must prove dangerousness by clear and convincing evidence, but risk of flight by a preponderance, distinguishing between the two relevant considerations. The court also noted that under the Bail Reform Act of 1984, the government must show a defendant's risk of flight by a preponderance of the evidence to justify detention. 390 F. Supp. 3d at 209–10, 224–25.
In less recent authority, the Central District of California held that the government should bear the burden of proof. Franco-Gonzales v. Holder , No. CV 10-02211 DMG DTBX, 2011 WL 5966657, at *7 (C.D. Cal. Aug. 2, 2011).
Indeed, of the federal district courts that have been asked to address the issue, this District's previous hesitancy to grapple with the question has rendered it an outlier. Of the courts that Amicus notes have addressed the issue, the vast majority have found that due process requires the government justify continued detention by providing clear and convincing evidence of danger or risk of flight; one has found the burden belongs to the government, but split the evidentiary standard between the danger and flight inquiries, see note 9, supra ; one has found that the burden should be placed on the government, but declined to specify a quantum of proof, see note 8, supra ; and two have placed the burden on the noncitizen detainee, J.N.C.G. v. Warden, Stewart Det. Ctr. , No. 4:20-cv-62-MSH, 2020 WL 5046870, at *7 (M.D. Ga. Aug. 26, 2020) ; Khan v. Whiddon , No. 2:13-cv-638-FTM-29MRM, 2016 WL 4666513, at *7 (M.D. Fla. Sept. 7, 2016). The government points to no decisions from outside of the District where a Court has declined to consider the question.
But see Maldonado-Velasquez v. Moniz , 274 F. Supp. 3d 11, 13–14 (D. Mass. 2017) (declining to decide the merits of the petitioner's argument that the burden was allocated improperly at his bond hearing under § 1226(a) ).
The J.N.C.G. court followed Sopo v. United States Att'y Gen. , 825 F.3d 1199, 1219–20 (11th Cir. 2016), which held that the detainee should bear the burden at a bond hearing required because § 1226(c) detention had become unreasonably prolonged. The Eleventh Circuit later vacated its decision in Sopo because Mr. Sopo was removed from the United States while his request for panel rehearing was stayed in light of the Jennings decision. 890 F.3d 952 (11th Cir. 2018).
In addition to this strong majority of district courts, the Third Circuit Court of Appeals recently addressed the burden issue in a case where the petitioner had been detained under § 1226(c) without a bond hearing. German Santos v. Warden Pike Cty. Corr. Fac. , 965 F.3d 203, 213–14 (3d Cir. 2020). And, very recently, a court in this District has joined the chorus, holding that the government should bear the burden of proof in a second bond hearing for man being held in a very extended period of § 1226(c) detention. Omar M. v. Garland , Civil No. 20-CV-1784 (NEB/BRT), Doc. No. 27 (D. Minn. Mar. 29, 2021). Resolving the issue of which party should bear the burden of proof at the bond hearing would further align this court with the majority of district courts to have considered the issue and the recent persuasive decision from the Third Circuit.
Finally, pragmatic considerations strongly support this Court's view that the burden issue should be addressed now. The Court has found that Mr. O's continued detention of nearly a year without a bond hearing violates the Due Process Clause of the Fifth Amendment. If that recommendation is adopted and a bond hearing is ultimately ordered but the burden of proof issue is not addressed, the burden will be placed on Mr. O at such a bond hearing. If the IJ's bond decision goes against Mr. O, it may take many more months before he could raise burden-of-proof issue again, even if he files a second habeas petition without delay. Mr. O would be required to file a new habeas petition arguing that the burden of proof was improperly allocated, a procedural outcome that is certain to occur. Before such a follow-on habeas proceeding could be resolved, Mr. O's detention would have been prolonged even further without the government ever having demonstrated in any forum that his detention is necessary. This is both inefficient and risks extending an unreasonably long period of detention.
Two cases from this District demonstrate the problem of requiring a petitioner to go through a lengthy detention to have his or her constitutional claim regarding the burden of proof considered. In Omar M. v. Barr , Civ. No. 20-1784 (NEB/BRT), 2020 WL 7383573 (D. Minn. Dec. 16, 2020), at the time of the petitioner's post-habeas bond hearing, where the burden of proof was placed on the petitioner, he had been detained for over two years. Id. , 2020 WL 7383573, at *3. By the time of the Magistrate Judge's report and recommendation on his second habeas petition, he had been detained for over three and a half years. Id. at *8. At the time the District Court ultimately decided that a new bond hearing must be held and the government must bear the burden of showing dangerousness or risk of flight by clear and convincing evidence, the total length of detention had approached four years. Omar M. v. Garland , Civil No. 20-CV-1784 (NEB/BRT), Doc. No. 27 (D. Minn. Mar. 29, 2021). Similarly, in Tua Mene Lebie B. v. Barr , No. 20-cv-1782 (ECT/LIB), Doc. No. 1 (D. Minn. Aug. 14, 2020), the petitioner filed a second habeas petition following after he received a court-ordered bond hearing at which the immigration judge placed the burden on the petitioner. At the time the second petition was filed, the petitioner had already been in custody for over two and a half years. Id. , Doc. 1 ¶ 4 (noting that detention had lasted 984 days, or more than 32 months). Mr. Lebie B's detention has now exceeded three years and his second petition is currently awaiting a decision.
As noted above, deferring on the question of the burden of proof does not achieve the purpose of funneling serious consideration of that issue through the Executive Branch in the first instance. The Omar M. and Lebie B. cases not only illustrate that reality, they also show that the individual's confinement can easily go on for many months or even years while the bond-hearing process and a subsequent habeas proceeding play out. During that entire period of detention, the government would have never been required to demonstrate that the detention of the individual actually served the purposes for which § 1226(c) was enacted. Against this reality, it is easy to see why the majority of courts to consider this issue address it themselves, rather than requiring the petitioner to go through a flawed bond hearing and the sometimes lengthy process it can take to resolve a new habeas proceeding.
For these reasons, the Court concludes that it is appropriate to resolve the question of the burden of proof at this stage rather than deferring the issue until after a bond-hearing at which the burden of proof would certainly be placed on Mr. O.
Allocating the Burden and the Appropriate Quantum of Proof
Having found that the Court should not accept the Respondents’ invitation to duck the issue of who should bear the burden of proof and what burden of persuasion must be met, the Court concludes that the burden should, indeed, be placed on the government. Further, the Court concludes that the government should be required to prove by clear and convincing evidence that Mr. O's release would present a danger to the community or a risk of nonappearance.
"As a general matter, when restriction of individual liberty has triggered due process concerns, a heightened burden of proof is placed on the State to justify continued detention." Jarpa v. Mumford , 211 F. Supp. 3d 706, 721 (D. Md. 2016) (cleaned up). The Jarpa court noted the regularity with which the Supreme Court has rejected civil commitment schemes placing the burden of proof on an individual. Id. (collecting cases). Doing so ensures procedural protections for the weightiest of an individual's liberty interests while accounting for the government's interest in detaining individuals where detention is justified. See id. ("[W]here detention is constitutionally permissible, it is only because adequate procedural protections ensure that the government's asserted justification for physical confinement outweighs the individual's constitutionally protected interest in avoiding physical restraint.") (cleaned up).
Applying a similar rationale, on July 7, 2020 the Third Circuit concluded that at a post-habeas bond hearing required by due process, the government bears the burden of justifying continued detention under § 1226(c) by clear and convincing evidence. German Santos v. Warden Pike County Corr. Fac. , 965 F.3d 203, 213–14 (3d Cir. 2020). The German Santos court explained that "[w]hen the Government seeks to take more than just money from a party, we typically hold the Government to a standard of proof higher than a preponderance of the evidence." Id. at 213. This allocates the risk of error between the parties appropriately given the individual's "more substantial" interest in freedom from physical restraint. Id. at 214 ("Because the alien's potential loss of liberty is so severe, we reasoned, he should not have to share the risk of error equally.").
Like the German Santos court, and the vast majority of other courts that have addressed this issue, this Court concludes that because the civil detention authorized by § 1226(c) deprives an individual like Mr. O of his substantial liberty interest, subjecting the government to a heightened burden of proof strikes an appropriate balance between that interest and the government's interest in protecting the community and efficacy of removal proceedings. See also Omar M. , Case No. 20-CV-1784 (NEB/BRT), Doc. No. 27 (D. Minn. Mar. 29, 2021) (concluding that the government must bear the burden of proof and demonstrate dangerousness and risk of flight by clear and convincing evidence where the IJ placed the burden on the detainee at a post-habeas bond hearing).
The government's arguments to the contrary do not change this result. For example, Jennings does not foreclose such an allocation of the burden because both the majority and dissenting opinions "were focused on whether the statutes required bond hearings" as a matter of statutory interpretation, leaving unanswered any questions regarding "the appropriate procedures consistent with due process." Hernandez v. Decker , No. 18-cv-5026 (ALC), 2018 WL 3579108, at *11 (S.D.N.Y. July 25, 2018).
Similarly, the Respondents’ suggestion that the Court is required under Chevron, USA, Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), to defer to the BIA's interpretation of where the burden lies is unavailing. Section 1226(c) says nothing about allocation of the burden at a bond hearing. This is not surprising, since the statute provides for mandatory detention and Congress created no proceedings for situations, like here, where a hearing is required by due process because detention has become unconstitutionally prolonged. The BIA interpretation to which the government directs the Court's attention involves a different statute— 8 U.S.C. § 1226(a) —which also does not specify an allocation of the burden. In two opinions, the BIA determined that an allegedly removable noncitizen bears the burden of proof in a bond hearing under § 1226(a), based on the language of 8 C.F.R. § 236.1(c)(8). See In re Guerra , 24 I. & N. Dec. 37 (BIA 2006) ; In re Adeniji , 22 I. & N. Dec. 1102, 1116 (BIA 1999). That regulation does not actually govern § 1226(a) bond hearings either; rather, it sets the standard to be applied by immigration officers charged with issuing arrest warrants. 8 C.F.R. § 236.1(c)(8) (requiring the allegedly removable noncitizen to "demonstrate to the satisfaction of the officer" that he is neither dangerous nor a flight risk in order to secure release). Nevertheless, the BIA determined in Guerra and Adeniji that it was reasonable to resort to this regulation to require the noncitizen to bear the burden in a bond hearing under § 1226(a).
The government spends several pages of its brief arguing that the BIA's conclusion that the regulation's allocation of the burden during bond hearings under § 1226(a) is a reasonable interpretation of the statute. Resp. at 22–26. But, as other courts have noted, whether or not the BIA's interpretation of a statute or regulation is reasonable does not control the due process inquiry. See Pensamiento v. McDonald , 315 F. Supp. 3d 684, 693 (D. Mass. 2018) ("Regardless of whether or not Chevron deference applies to the BIA's interpretation of [ § 1226(a) ], the issue before the Court is whether the Constitution requires the government to bear the burden of proof in § 1226(a) bond hearings. A Chevron argument about statutory interpretation does not change the constitutional analysis."). Put differently, the issue here is not whether § 1226 ’s silence on allocation of the burden allows the BIA to pick between two reasonable alternatives. Rather, the question is whether assigning that burden to the alien in a bond hearing comports with the constitutional requirement that all persons receive due process of law. For the reasons discussed above, the Court concludes that it does not.
Ability to Pay
Finally, Mr. O asks the Court to require that the immigration judge at his bond hearing take into account his ability to pay in setting bond for his release. Pet. ¶¶ 64, 72, 88, 94; Id. at 35, Prayer for Relief ¶ 7. The Respondents do not address this request in their response to the petition.
Some courts have explicitly directed the immigration judge holding a bond hearing for a person detained for an unreasonably long period to consider the noncitizen's ability to pay in determining bail as well as "alternative conditions of release in setting bond." Graham , 2020 WL 3317728, at *8 (noting that courts in the Southern District of New York have "consistently" required consideration of the ability to pay and other conditions); Gomes Herbert v. Decker , 19-cv-760 (JPO), 2019 WL 1434272, at *4 (S.D.N.Y. Apr. 1, 2019) ; Hernandez v. Decker , 18-cv-5026 (ALC), 2018 WL 3579108, at *12 (S.D.N.Y. July 25, 2018) (concluding, based on Second Circuit precedent, that the "a bond determination that does not include consideration of financial circumstances and alternative release conditions is unlikely to result in a bond amount that is reasonably related to the government's legitimate interests"). However, the Hernandez court also noted that "consideration of ability to pay and alternatives to detention appears to be compelled by BIA case law." 2018 WL 3579108, at *12.
The Court agrees that a bond decision that does not take into account a person's financial circumstances would be, to say the least least, constitutionally suspect. However, unlike the issue of the burden and quantum of proof, Mr. O has not shown that it would be futile to require him to raise this issue with the immigration judge. Accordingly, the Court declines to recommend that an Order requiring a bond hearing in this matter include a provision that necessitates consideration of Petitioner's ability to pay.
Recommendation
Based on the foregoing, the Court makes the following recommendation:
1. The Petition should be GRANTED IN PART and DENIED IN PART .
2. Mr. O's request for immediate release and that any bond hearing should be conducted in this Court should be denied. The Court should also decline to require consideration of Mr. O's ability to pay at a bond hearing before the immigration judge because BIA precedent already demands financial considerations be taken into account.
3. Mr. O should receive an individualized bond hearing before an immigration judge within 21 days of any Order adopting this Report and Recommendation. If the government does not hold an individualized bond hearing within 30 days of an Order adopting this Report and Recommendation, then Mr. O should be released.
4. At the bond hearing, the parties should be allowed to present evidence and argument concerning whether Mr. O is a danger to the community and whether he is likely to flee if he is not detained.
5. At the hearing, the immigration judge should be required to place the burden of proof on the government, and continued detention should only be authorized if the government meets its burden with clear and convincing evidence.
NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the District Court and is therefore not appealable directly to the Eighth Circuit Court of Appeals.
Under Local Rule 72.2(b)(1), "a party may file and serve specific written objections to a magistrate judge's proposed finding and recommendations within 14 days after being served a copy" of the Report and Recommendation. A party may respond to those objections within 14 days after being served a copy of the objections. LR 72.2(b)(2). All objections and responses must comply with the word or line limits set for in LR 72.2(c).
Under Advisement Date: This Report and Recommendation will be considered under advisement 14 days from the date of its filing. If timely objections are filed, this Report and Recommendation will be considered under advisement from the earlier of: (1) 14 days after the objections are filed; or (2) from the date a timely response is filed.