Hernandez-Lara v. Immigration and Customs Enforcement, Acting Director
| Decision Date | 25 July 2019 |
| Docket Number | Civil No. 19-cv-394-LM |
| Citation | 560 F.Supp.3d 531 |
| Parties | Ana Ruth HERNANDEZ-LARA v. IMMIGRATION AND CUSTOMS ENFORCEMENT, ACTING DIRECTOR |
| Court | U.S. District Court — District of New Hampshire |
Bryanna Kleber Devonshire, Patrick J. Queenan, Sheehan Phinney Bass & Green, Manchester, NH, Gilles R. Bissonnette, Henry Klementowicz, SangYeob Kim, American Civil Liberties Union of New Hampshire, Concord, NH, for Ana Ruth Hernandez-Lara.
Robert J. Rabuck, US Attorney's Office, Concord, NH, for Immigration and Customs Enforcement, Acting Director.
Landya McCafferty, United States District Judge Petitioner Ana Ruth Hernandez-Lara is a 33-year-old asylum seeker from El Salvador. According to Hernandez, in or about 2013, after receiving death threats from a gang, she fled El Salvador and came illegally into the United States. On September 20, 2018, United States Immigration and Customs Enforcement (ICE) took Hernandez into custody. At the time of her arrest, she was living in Portland Maine with her significant other. Hernandez has been in custody since that date.
Seeking habeas relief under 28 U.S.C. § 2241, Hernandez requests release or, in the alternative, a new bond hearing where the burden is placed on the government to prove by clear and convincing evidence that she is either a danger to the public or a flight risk. The government moves to dismiss her habeas petition, arguing that it does not state a viable legal claim for relief because Hernandez received a bond hearing and suffered no due process violation. On July 23, 2019, the court held a hearing on both the merits of the petition and the motion to dismiss. For the reasons that follow, the court denies the motion to dismiss and grants Hernandez's petition to the extent it requests a new bond hearing.
Hernandez files this writ of habeas corpus seeking relief pursuant to 28 U.S.C. § 2241, alleging that she is being held "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Hernandez is currently detained at the Strafford County House of Corrections, a facility within this court's jurisdiction, and she asserts her detention violates due process.
Federal courts have habeas jurisdiction to review a constitutional challenge to the immigration bail system that is unrelated to a final order of removal. See Jennings v. Rodriguez, ––– U.S. ––––, 138 S. Ct. 830, 841, 200 L.Ed.2d 122 (2018) (); Zadvydas v. Davis, 533 U.S. 678, 688, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (); Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011) (); Figueroa v. McDonald, ––– F. Supp. 3d ––––, ––––, 2018 WL 2209217, at *2-3 (D. Mass. 2018) (); see also Saint Fort v. Ashcroft, 329 F.3d 191, 200 (1st Cir. 2003) ().
Hernandez's petition challenges the constitutionality of the immigration bail system; she is not asking the court to review the discretionary judgment exercised by the immigration judge in her case. Thus, this court has jurisdiction over Hernandez's claims.
The parties do not dispute the material facts. Approximately one month after being taken into custody, Hernandez had a bond hearing before an immigration judge ("IJ"). See doc. no. 1-1. The IJ placed the burden of proof on her to prove by clear and convincing evidence that she was neither a danger nor a flight risk. Id. at 10. Hernandez put on evidence that she had neither a criminal record nor any history of arrests. She also put on evidence of her good moral character, and her ties to Portland Maine, the community in which she was living. The IJ ruled that Hernandez was a danger based on a Red Notice from Interpol, issued by El Salvador, that accused Hernandez—incorrectly, according to Hernandez—of being a gang member. Hernandez explained to the IJ that the Red Notice allegation was false, and that it was her brother who was a member of the gang. Even the IJ expressed concern about the Red Notice during the bond hearing:
I don't see that there is sufficient evidence explaining why these allegations are being brought against her. She claims that they're street gangs, but it looks like I don't know if that's because this is an inter-rival thing or she was an innocent member or somehow wrongly identified. I just don't have the evidence. What I do have is the Interpol Red Notice. As it is the Respondent's burden of proof to show by clear and convincing evidence she is not a danger, I find, based on this Red Notice, she has failed to meet that burden ....
Doc. no. 1-1 at 9-10. The IJ found Hernandez had not sufficiently refuted the Red Notice and that she was a danger. He ordered that Hernandez be detained pending the completion of her removal proceedings. Id.
Hernandez has applied for asylum and for protections under the Convention Against Torture. The IJ denied both requests. Hernandez has appealed the IJ's decision and her appeal is currently pending before the Board of Immigration Appeals (BIA). On June 13, 2019, the First Circuit granted her request to stay her removal during the pendency of her petition for review of the decision of the BIA. See doc. no. 15. As of the date of this Order, Hernandez has been detained for over 10 months.
Hernandez was arrested pursuant to 8 U.S.C. § 1226(a), which allows for ICE agents to arrest and detain an alien "pending a decision on whether the alien is to be removed from the United States." Because Hernandez is not a criminal alien, the government has the discretion to release her on bond. See 8 U.S.C. § 1226(a)(2). After ICE makes the initial decision to detain an alien, the alien has the right to request a bond hearing to seek release pending final removal proceedings. 8 C.F.R. § 236.1(d)(1). But § 1226 is silent on the question of which party bears the burden of proof at that hearing. See 8 U.S.C. § 1226(a).
Although the statute is silent on burden of proof, the BIA has consistently held that the alien carries the burden of proving to the satisfaction of the IJ that he "merits release on bond." In re Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006). Specifically, the BIA has held that the alien "must demonstrate that his release would not pose a danger to property or persons, and that he is likely to appear for any future proceedings." In re Adeniji, 22 I. & N. Dec. 1102, 1116 (BIA 1999) ; see also Figueroa, ––– F.Supp.3d at –––– n.1, 2018 WL 2209217, at *3 n.1 ().
In Jennings, the Supreme Court recently addressed the procedures required in a bond hearing under § 1226(a). See Jennings, 138 S. Ct. at 847-48. Although the Court held that the statute does not mandate that the government meet a clear and convincing evidence standard in § 1226(a) bond hearings, it left open the question whether the Due Process Clause places such a burden on the government at these hearings. Id. at 851. This is the question raised by Hernandez's habeas petition.
Neither the Supreme Court nor the First Circuit has decided this precise question. However, the Ninth Circuit has squarely ruled that due process requires that the government bear the burden at a § 1226(a) bond hearing of justifying detention by clear and convincing evidence. See Singh, 638 F.3d at 1203-06.1
In this circuit, Chief Judge Saris in the District of Massachusetts has held in two cases that due process requires the government to bear the burden of proof at a bond hearing under § 1226(a), but not necessarily by clear and convincing evidence. Pensamiento v. McDonald, 315 F. Supp. 3d 684, 692-93 (D. Mass. 2018) ; Figueroa, ––– F.Supp.3d at ––––, 2018 WL 2209217, at *6. Rather, Judge Saris has held that due process requires the government to bear the burden of proving " ‘to the satisfaction of the IJ’ " that the alien is either dangerous or a flight risk. Pensamiento, 315 F. Supp. 3d at 693 (quoting Guerra, 24 I. & N. at 40 ); Figueroa, ––– F.Supp.3d at ––––, 2018 WL 2209217, at *6 (same). Chief Judge Saris has recently reaffirmed these holdings in Doe v. Tompkins, No. 18-12266-PBS, 2019 WL 8437191, at *1, 2019 U.S. Dist. LEXIS 22616, at *2 (D. Mass. Feb. 12, 2019) and Diaz Ortiz v. Tompkins, 384 F.Supp.3d 140, 142 (D. Mass. 2019).
Chief Judge Saris's decisions placing the burden of proof on the government rather than the noncriminal alien under § 1226(a) are in accord with every other district court that has addressed this precise question. See Aparicio-Larin v. Barr, No. 6:19-cv-06293-MAT, 2019 WL 3252915, at *6 (W.D.N.Y. July 20, 2019) ; Nzemba v. Barr, No. 6:19-CV-06299-MAT, 2019 WL 3219317, at *6 (W.D.N.Y. July 17, 2019) ; Diaz-Ceja v. McAleenan, No. 19-cv-00824-NYW, 2019 WL 2774211, at *10 (D. Colo. July 2, 2019) ; Velasco Lopez v. Decker, 19-cv-2912 (ALC), 2019 WL 2655806, at *3 ; Darko v. Sessions, 342 F. Supp. 3d 429, 435-36 (S.D.N.Y. 2018) ; Martinez v. Decker, No. 18-CV-6527 (JMF), 2018 WL 5023946, at *4-5 (S.D.N.Y. Oct. 17, 2018). But see Maldonado-Velasquez v. Moniz, 274 F. Supp. 3d 11, 13-15 (D. Mass. 2017) (...
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