Borbot v. Warden Hudson Cnty. Corr. Facility

• Decision Date: 16 October 2018
• Docket Number: No. 17-2814,17-2814
• Citation: 906 F.3d 274
• Parties: Igor V. BORBOT, Appellant v. WARDEN HUDSON COUNTY CORRECTIONAL FACILITY
• Court: U.S. Court of Appeals — Third Circuit

906 F.3d 274

Igor V. BORBOT, Appellant

v.WARDEN HUDSON COUNTY CORRECTIONAL FACILITY

No. 17-2814

United States Court of Appeals, Third Circuit.

Argued March 21, 2018

Filed: October 16, 2018

Simone Bertollini [Argued], 609 North Franklin Avenue, Suite 2120, Nutley, NJ 07110, Paul F. O’Reilly, 450 Seventh Avenue, Suite 1408, New York, NY 10123, Attorneys for Appellant

Chad A. Reader, William C. Peachey, Kathleen A. Connolly, Genevieve Kelly [Argued], United States Department of Justice, Office of Immigration Litigation, 450 5th Street, N.W., Washington, D.C. 20001, Attorneys for Appellee

Before: SMITH, Chief Judge, HARDIMAN, and ROTH, Circuit Judges.

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

Igor Borbot, a native and citizen of Russia, has been detained at the Hudson County Correctional Facility pending removal proceedings since April 2016. Fourteen months after he was denied release on bond, Borbot petitioned the United States District Court for the District of New Jersey for a writ of habeas corpus under 28 U.S.C. § 2241. Borbot alleged that the Due Process Clause of the Fifth Amendment entitled him to a new bond hearing at which the government would bear the burden of justifying his continued detention. The District Court dismissed Borbot’s petition, and he filed this appeal.

I

Borbot entered the United States in September 2014 on a six-month tourist visa, which he overstayed. Nearly a year later, an Interpol Red Notice requested by Russia identified Borbot as a fugitive wanted for prosecution on criminal fraud charges. On April 22, 2016, Immigration and Customs Enforcement (ICE) detained Borbot under 8 U.S.C. § 1226(a) and initiated removal proceedings, which are still pending in immigration court in New York.

Section 1226(a) provides that "[o]n a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States." 8 U.S.C. § 1226(a). The relevant implementing regulations state that a detainee under § 1226(a) may be released on bond by ICE or by an immigration judge (IJ) if the detainee "demonstrate[s] ... that such release would not pose a danger to property or persons, and that [he] is likely to appear for any future proceeding." 8 C.F.R. § 236.1(c)(8). If denied release at the initial bond hearing, a § 1226(a) detainee may request a custody redetermination hearing before an IJ. Id. § 236.1(d)(1). That request will "be considered only upon a showing that the alien’s circumstances have changed materially." Id. § 1003.19(e). Both the initial bond determination and subsequent custody decisions can be appealed to the Board of Immigration Appeals (BIA). Id. § 236.1(d)(3).

Shortly after his arrest, Borbot applied for release on bond. An IJ denied his application after a hearing, finding that Borbot failed to meet his "burden in establishing [that] he does not pose a risk of danger to property." App. 80 (citing Matter of Urena , 25 I & N Dec. 140, 141 (BIA 2009) ). Borbot appealed the IJ’s decision to the BIA, arguing that the IJ "gave too much weight to his pending criminal charges in Russia" and that the charges were pretextual and "lodged in retaliation for [Borbot’s] political opposition to ... Vladimir Putin." App. 76. The BIA upheld the IJ’s decision, explaining that "an alien in bond proceedings is not entitled to the benefit of the doubt when it comes to evidence of potential dangerousness." Id. Borbot later requested a redetermination hearing, which the IJ denied on April 13, 2017, finding that there had been no material change in circumstances.

About three months later, Borbot filed in the District Court a petition for writ of habeas corpus under 28 U.S.C. § 2241, alleging that his continued detention deprived him of due process unless the government could show "clear and convincing evidence of risk of flight or danger to the community." App. 24 (citations omitted). On July 19, 2017, nearly 15 months after Borbot’s arrest, the District Court dismissed his petition as facially insufficient, concluding that Borbot was not entitled to a new bond hearing unless he could show that he was denied due process in his initial hearing, which he did not attempt to do. Borbot timely appealed.¹

II

The District Court had jurisdiction under 28 U.S.C. § 2241. We have jurisdiction under 28 U.S.C. § 1291. Because the District Court dismissed Borbot’s petition without holding an evidentiary hearing, our review is plenary. See Fahy v. Horn , 516 F.3d 169, 179 (3d Cir. 2008) ; see also Ezeagwuna v. Ashcroft , 325 F.3d 396, 405 (3d Cir. 2003) (reviewing de novo whether an alien’s due process rights were violated).

III

"[T]he Fifth Amendment entitles aliens to due process of law in deportation proceedings." Reno v. Flores , 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). The Supreme Court has repeatedly recognized that "[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens." Demore v. Kim , 538 U.S. 510, 521, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (citation omitted). At the same time, the Court has found limits on that power. See, e.g. , Zadvydas v. Davis , 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (concluding that "[a] statute permitting indefinite detention of an alien would raise a serious constitutional problem").

The duration of Borbot’s detention is the sole basis for his due process challenge. According to Borbot, the government cannot constitutionally detain him "for over a year, or indefinitely[,] without having to prove dangerousness." Borbot Br. 3. He acknowledges that—as mandated by Congress and the Department of Homeland Security—he has received a bond hearing and an opportunity to request a redetermination hearing based on changed circumstances. He does not challenge the adequacy of his initial bond hearing. Nor does he allege unreasonable delay by the government. Indeed, the conclusion of his removal proceedings—and accordingly the end of his detention—appears to be forthcoming.² Rather, he argues that by the time the IJ denied his request for a redetermination hearing, about a year into his detention, he was entitled to a second bond hearing, this time with the government bearing the burden of proof. But Borbot cites no authority, and we can find none, to suggest that duration alone can sustain a due process challenge by a detainee who has been afforded the process contemplated by § 1226(a) and its implementing regulations.³

Instead, Borbot draws an analogy between his detention and mandatory detention under 8 U.S.C. § 1226(c). In particular, he relies on two cases in which this Court held that aliens detained under § 1226(c) were entitled to a bond hearing if their detention became unreasonably long: Diop v. ICE/Homeland Sec. , 656 F.3d 221 (3d Cir. 2011) and Chavez-Alvarez v. Warden York Cty. Prison , 783 F.3d 469 (3d Cir. 2015). Because of the differences between mandatory detention under § 1226(c) and detention under § 1226(a), however, Borbot’s analogy is inapt.

In contrast to the bond hearing and subsequent process afforded to § 1226(a) detainees like Borbot, Congress in § 1226(c) defined certain categories of aliens for whom detention is mandatory and release is authorized only in narrow circumstances. Under § 1226(c), "[t]he Attorney General shall take into custody any alien" who is inadmissible or deportable on the basis of enumerated categories of crimes and terrorist activities. 8 U.S.C. § 1226(c)(1). By its terms, § 1226(c) does not entitle detainees to a bond hearing. Release is authorized "only if the Attorney General decides ... that release of the alien from custody is necessary" for witness-protection purposes "and the alien satisfies the Attorney General that the alien 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).

In Diop , we considered whether a petitioner was entitled to a bond hearing nearly three years into his detention under § 1226(c). 656 F.3d at 223–26. We held that he was, notwithstanding that provision’s lack of any such requirement. "[W]hen detention becomes unreasonable," we reasoned, "the Due Process Clause demands a hearing, at which the Government bears the burden of proving that continued detention is necessary to fulfill the purposes of the detention statute." Id. at 233.

We noted that in rejecting a due process challenge by a § 1226(c) detainee in Demore , the Supreme Court emphasized that "mandatory detention pursuant to § 1226(c) lasts only for a ‘very limited time’ in the vast majority of cases," and concluded that the result in that case "may well have been different" if the petitioner’s detention had been "significantly longer than the average." Diop , 656 F.3d at 233–34 (quoting Demore , 538 U.S. at 529 & n.12, 123 S.Ct. 1708 ). We therefore interpreted § 1226(c) to "contain[ ] an implicit limitation of reasonableness: the statute authorizes only mandatory detention that is reasonable in length." Id. at 235. Beyond that point—which can be determined only by a "fact-dependent inquiry," id. at 233 —the statute "yields to the constitutional requirement that there be a further, individualized, inquiry into whether continued detention is necessary to carry out the statute’s purpose," id. at 235. Our interpretation of § 1226(c) relied in part on Zadvydas , in which the Supreme Court "read an implicit limitation into" 8 U.S.C. § 1231(a)(6) —which governs detention of aliens who have already been ordered removed—so that it "d[id] not permit indefinite detention." 533 U.S. at 689, 121 S.Ct. 2491.

We applied Diop ’s reasonableness requirement in Chavez-Alvarez. There, we held that because the petitioner’s year-long detention under § 1226(c) had become unreasonable, he was entitled to a bond hearing where the government would bear the burden of "produc[ing] individualized evidence...