Hernandez-Lara v. Lyons

• Decision Date: 19 August 2021
• Docket Number: No. 19-2019,19-2019
• Citation: 10 F.4th 19
• Parties: Ana Ruth HERNANDEZ-LARA, Petitioner, Appellee, v. Todd M. LYONS, Immigration and Customs Enforcement, Enforcement and Removal Operations, Acting Field Office Director, Respondent, Appellant, Christopher Brackett, Superintendent, Strafford County Department of Corrections, Respondent.
• Court: U.S. Court of Appeals — First Circuit

10 F.4th 19

Ana Ruth HERNANDEZ-LARA, Petitioner, Appellee,

v. Todd M. LYONS, Immigration and Customs Enforcement, Enforcement and Removal Operations, Acting Field Office Director, Respondent, Appellant,Christopher Brackett, Superintendent, Strafford County Department of Corrections, Respondent.

No. 19-2019

United States Court of Appeals, First Circuit.

August 19, 2021

Catherine M. Reno, Trial Attorney, with whom Ethan P. Davis, Acting Assistant Attorney General, Civil Division, Scott G. Stewart, Deputy Assistant Attorney General, William C. Peachey, Director, Office of Immigration Litigation, District Court Section, Carlton F. Sheffield, Senior Litigation Counsel, and Ari Nazarov, Trial Attorney, were on brief, for appellant.

Bryanna K. Devonshire, with whom Courtney H.G. Herz, Sheehan Phinney Bass & Green, PA, Gilles Bissonnette, Henry Klementowicz, SangYeob Kim, and American Civil Liberties Union of New Hampshire, were on brief, for appellee.

Before Lynch, Lipez, and Kayatta, Circuit Judges.

KAYATTA, Circuit Judge.

Ana Ruth Hernandez-Lara ("Hernandez"), a thirty-four-year-old native and citizen of El Salvador, entered the United States in 2013 without being admitted or paroled. An immigration officer arrested Hernandez in September 2018, and the government detained her at the Strafford County Department of Corrections in Dover, New Hampshire ("Strafford County Jail") pending a determination of her removability. Approximately one month later, Hernandez was denied bond at a hearing before an immigration judge (IJ) in which the burden was placed on Hernandez to prove that she was neither a danger to the community nor a flight risk.

Hernandez subsequently filed a petition for a writ of habeas corpus in the United States District Court for the District of New Hampshire, contending that the Due Process clause of the Fifth Amendment entitled her to a bond hearing at which the government, not Hernandez, must bear the burden of proving danger or flight risk by clear and convincing evidence. The district court agreed and ordered the IJ to conduct a second bond hearing at which the government bore the burden of proving by clear and convincing evidence that Hernandez was either a danger or a flight risk. That shift in the burden proved pivotal, as the IJ released Hernandez on bond following her second hearing, after ten months of detention. The government now asks us to reverse the judgment of the district court, arguing that the procedures employed at Hernandez's original bond hearing comported with due process and, consequently, that the district court's order shifting the burden of proof was error. Although we agree that the government need not prove a detainee's flight risk by clear and convincing evidence, we otherwise affirm the order of the district court. Our reasoning follows.

I.

The parties do not dispute the relevant background facts. Hernandez was born in Usulutan, El Salvador, in 1986. Before coming to the United States in 2013, her life was marred by abusive domestic relations and gang violence. Hernandez's stepfather raped her when she was twelve years old and beat her mother throughout Hernandez's childhood. History repeated when Hernandez's stepfather's son raped Hernandez's then-eight-year-old daughter. Although Hernandez escaped her stepfather by living with her brother, she was unable to escape danger. Hernandez's brother was a member of Mara 18 (the 18th Street Gang), and after he was imprisoned for gang-related crimes, the gang began threatening Hernandez in an effort to force her to assume her brother's former gang responsibilities. Hernandez resisted those threats until late August 2013, when the gang told her aunts they intended to kill her and "throw [her] head in the river." Hernandez immediately fled to the United States and ultimately established residency in Portland, Maine, where she worked at a recycling plant and was engaged to be married.

Hernandez was taken into custody by an immigration officer on September 20, 2018, and detained pursuant to 8 U.S.C. § 1226(a), which provides for discretionary detention of noncitizens during the pendency of removal proceedings.¹ On October 18, 2018, the IJ held a bond hearing at which, consistent with immigration regulations, the burden of proof was placed on Hernandez to prove she was neither a danger to the community nor a flight risk. See Matter of Guerra, 24 I. & N. Dec. 37, 40 (B.I.A. 2006). Hernandez presented evidence that she had no criminal record or history of arrest in either El Salvador or the United States. She also offered evidence of her good moral character and her community and family ties to Portland. Both her parents and two of her three siblings reside in the United States.

The government's response provided an apt demonstration of how the burden of proof can affect immigration bond hearings. Government counsel produced a so-called "Red Notice" published by El Salvador through the International Criminal Police Organization ("INTERPOL"). The notice identifies Hernandez, describes the activities of Street Gang 18 (much as Hernandez described them), and simply states that Hernandez is subject to an arrest warrant in El Salvador under El Salvadoran "Article 13 of the Special Law Against Acts of Terrorism."

An INTERPOL Red Notice is "a request to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action." Red Notices, INTERPOL, https://www.interpol.int/en/How-we-work/Notices/Red-Notices (last visited August 18, 2021). In the United States, an INTERPOL Red Notice alone is not a sufficient basis to arrest, much less detain or extradite, the "subject" of the notice "because it does not meet the requirements for arrest under the 4th Amendment to the Constitution." About INTERPOL Washington: Frequently Asked Questions, U.S. Dep't of Just., https://www.justice.gov/interpol-washington/frequently-asked-questions (last visited August 18, 2021).

Hernandez denied belonging to the organization. Her counsel explained that her brother had belonged to the gang and pointed out that the Red Notice failed to specify any criminal or dangerous act that Hernandez allegedly committed.

The IJ indicated that it was not clear whether Hernandez's alleged involvement in the organization was due to "an inter-rival thing or [if] she was an innocent member or somehow wrongly identified." Nonetheless, he found that there was not "sufficient evidence explaining why these allegations are being brought against her." Stating that "it is [Hernandez's] burden of proof to show by clear and convincing evidence she is not a danger," the IJ found, "based on this Red Notice, [that] she has failed to meet that burden." Consequently, he denied her request for bond. Hernandez remained detained as she pursued claims for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT").

On April 16, 2019, Hernandez filed a petition for a writ of habeas corpus in the United States District Court for the District of New Hampshire. In her petition, Hernandez claimed that due process required the government to bear the burden of proving, by clear and convincing evidence, that she was either dangerous or a flight risk, and therefore that her initial bond hearing was constitutionally inadequate. Hernandez also claimed that because of her "prolonged detention" of over six months, due process required an additional bond hearing at which the government would bear the burden of proof. Hernandez sought as relief either her immediate release or a new bond hearing at which the government would bear the burden of proving by clear and convincing evidence that she was dangerous or a flight risk.

On July 25, 2019, the district court granted Hernandez's habeas petition and ordered the IJ to conduct another bond hearing at which the government would "bear the burden of justifying Hernandez's detention by clear and convincing evidence." Hernandez-Lara v. Immigr. & Customs Enf't, Acting Dir., No. 19-cv-394-LM, 2019 WL 3340697, at *7 (D.N.H. July 25, 2019).² Less than a week later, the same IJ who conducted Hernandez's first bond hearing held a second hearing in accordance with the district court's order. The government relied once again on the Red Notice and additionally argued that Hernandez was a flight risk because her asylum claim had been denied by both the IJ and the Board of Immigration Appeals (BIA), though it was pending before this court at the time. Hernandez countered that the Red Notice was defective, as it contained no factual allegations that Hernandez committed any crime or was part of any gang activity, and that she has no history of criminal conviction. As to flight risk, Hernandez argued she had a meaningful chance of relief in her appeal before us and that she had family ties, employment, and a residence in Maine to which she would return.

The IJ granted Hernandez's request for bond, setting it at $7,500. In explaining his decision, the IJ stressed the shift of burden:

Because the burden of proof is now on the Government, I do find that to be outcome determinative in this case for the reasons I stated in [the first bond hearing]. While [Hernandez] does have accusations, absent any other details or any other evidence, I'm able to conclude that it isn't clear and convincing to show that she's a danger, especially where she has no other criminal history here in the United States.

Given her community ties, fixed address, and work history, the IJ also found that Hernandez was not a flight risk. As a result, the IJ released Hernandez after she spent over ten months in detention.

As noted, the IJ had previously denied Hernandez's asylum, withholding, and CAT claims on the merits, finding her credible but also concluding that "she failed to demonstrate that her familial connection to her brother was 'one central reason' that the gang singled her out" and that "the police would have protected [her] from the gang if s...