J.G. v. Warden, Irwin Cnty. Detention Ctr., Civil Case No.: 7:20-CV-93 (HL)

• Citation: 501 F.Supp.3d 1331
• Decision Date: 16 November 2020
• Docket Number: Civil Case No.: 7:20-CV-93 (HL)
• Parties: J.G., Petitioner, v. WARDEN, IRWIN COUNTY DETENTION CENTER, et al., Defendant.
• Court: U.S. District Court — Middle District of Georgia

501 F.Supp.3d 1331

J.G., Petitioner,

v.WARDEN, IRWIN COUNTY DETENTION CENTER, et al., Defendant.

Civil Case No.: 7:20-CV-93 (HL)

United States District Court, M.D. Georgia, Valdosta Division.

Signed November 16, 2020

ORDER

HUGH LAWSON, SENIOR JUDGE

This case is before the Court on the Recommendation of United States Magistrate Judge Stephen Hyles regarding Petitioner Jinxu Gao's habeas application. (Doc. 30). The Magistrate Judge recommends dismissing each of Petitioner's habeas claims. (Id. ). Petitioner timely objected to the Magistrate Judge's Recommendation. (Doc. 31). On October 29, 2020, this Court held oral argument via Zoom concerning Petitioner's objections. (Docs. 36, 37). The Court examined the record in this case, and with the benefit of oral argument, made a de novo review of the Recommendation. The Court concludes that placing the burden of proof on Petitioner at his bond hearing violated the Fifth Amendment's Due Process Clause.¹ Accordingly, the Court rejects the Recommendation and GRANTS in part Petitioner's application for habeas relief.

I. FACTUAL BACKGROUND

Petitioner does not object to the Recommendation's factual findings. The Court adopts the Recommendation's background and will briefly summarize the facts here. Petitioner is a 52-year-old citizen of the People's Republic of China. He was admitted to the United States legally on a valid B-1 visa as a temporary visitor conducting business. His visa expired on October 18, 2014, and he continued to reside in the United States unlawfully. On December 2, 2018, a U.S. Immigration and Customs Enforcement ("ICE") officer took Petitioner into custody following a traffic offense.

Petitioner received a bond hearing before an immigration judge ("IJ") at the Atlanta Immigration Court on January 22, 2019. (Doc. 1-7, p. 2). The IJ denied bond, finding that Petitioner failed to meet his burden to demonstrate that he was not a flight risk. (Id. at p. 5). The IJ's decision was based solely on risk of flight; the IJ did not suggest that Petitioner posed a danger to the community. (Id. ).

During the same time Petitioner sought release on bond, his asylum application was also under review. He filed his application for asylum on January 8, 2019. That application was denied on February 15, 2019, and the IJ ordered Petitioner to be removed to China. Petitioner appealed the denial of his asylum application to the Board of Immigration Appeals ("BIA"). On August 9, 2019, the BIA affirmed in part and reversed in part the IJ's denial of Petitioner's asylum application. (Doc. 1-3). The BIA remanded the case to the IJ for further proceedings. (Id. ).

On February 14, 2020, Petitioner filed a motion for a bond redetermination hearing, arguing that the remand from the BIA materially changed his circumstances. An IJ rejected this argument and denied Petitioner's motion for a second bond hearing. (Doc. 1-9).

In accordance with the BIA's decision to remand Petitioner's asylum application, an IJ conducted evidentiary hearings. On April 10, 2020, his asylum application was denied, and an IJ again ordered him to be removed to China. (Doc. 1-4, p. 13). Petitioner appealed this decision to the BIA on May 8, 2020. (Doc. 1-5). His appeal is currently pending. Throughout the immigration proceedings, ICE detained Petitioner at Irwin County Detention Center. Petitioner never received a subsequent bond hearing after his initial request for bond was denied nearly two years ago.

II. DISCUSSION

Petitioner claims he never received a constitutional bond hearing because allocating the burden of proof to noncitizens to demonstrate whether they are a flight risk or danger to the community violates due process. The Recommendation concluded that the available immigration bond procedures afforded Petitioner a meaningful opportunity to be heard. Petitioner objects to the Recommendation's analysis.

The Due Process clause establishes that "[n]o person shall be ... deprived of ... liberty ... without due process of law." U.S. Const. amend. V. "Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects." Zadvydas v. Davis , 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). But an individual's "liberty interest is not absolute." Kansas v. Hendricks , 521 U.S. 346, 356, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). "[A]n individual's constitutionally protected interest in avoiding physical restraint may be overridden even in the civil context." Id.

Civil detention during removal proceedings is authorized by federal law and generally permitted under the Constitution. See Demore v. Kim , 538 U.S. 510, 523, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). Limitations like the Due Process Clause, however, restrict the Government's power to detain noncitizens. Id. ; see Frech v. U.S. Att'y Gen. , 491 F.3d 1277, 1281 (11th Cir. 2007) ("It is well settled that individuals in deportation proceedings are entitled to due process of law under the Fifth Amendment.") (citing Reno v. Flores , 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) ). Courts must review immigration procedures and ensure that they comport with the Constitution—notwithstanding the fact that "Congress regularly makes rules that would be unacceptable if applied to citizens." Demore , 538 U.S. at 521, 123 S.Ct. 1708 ; see id. at 547 n.9, 123 S.Ct. 1708 (Souter, J., concurring in part and dissenting in part) ("The statement that ... ‘Congress regularly makes rules that would be unacceptable if applied to citizens’ cannot be read to leave limitations on the liberty of aliens unreviewable." (citation omitted)); see also Zadvydas , 533 U.S. at 695, 121 S.Ct. 2491 ("Congress has ‘plenary power’ to create immigration law, ... [b]ut that power is subject to important constitutional limitations."). Petitioner's habeas claim asserts that the Government's immigration bond procedure is unconstitutional. Specifically, he argues that allocating the burden of proof to the noncitizen to determine his release or detention pending removability proceedings violates the Due Process Clause.

A. Immigration Bond Under § 1226(a)

The Government is detaining Petitioner as a non-criminal noncitizen awaiting a final decision as to whether the Government will order him to be removed. The statute authorizing Petitioner's detention is 8 U.S.C. § 1226(a).² Under § 1226(a), detention is discretionary; an IJ may release a noncitizen on bond during this period pending resolution of removal proceedings. The IJ may also set conditions of release such as subjecting the noncitizen to electronic monitoring. 8 U.S.C. § 1226(a)(2). Finally, the IJ may choose to detain a noncitizen pending resolution of removal proceedings. 8 U.S.C. § 1226(a)(1).

The statute provides no guidance as to how IJs make discretionary bond determinations. Section 1226(a) is silent as to whether the Government or the noncitizen bears the burden of proof. To fill this gap, the BIA adopted 8 C.F.R. § 236.1(c)(8) ’s standard for release. Matter of Adeniji , 22 I. & N. Dec. 1102, 1113 (B.I.A. 1999). The regulation, promulgated by the Immigration and Naturalization Service ("INS"), allows "[a]ny officer authorized to issue a warrant of arrest" to release the noncitizen provided that he "must demonstrate to the satisfaction of the officer 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). The noncitizen carries the burden to prove that he is not a flight risk or danger to the community, and the standard of proof is "to the satisfaction of the officer" executing the arrest warrant. Id.

The regulation applies only to officials issuing arrest warrants for immigration violations. Id. ; 8 C.F.R. §§ 236.1(b), 287.5(e)(2). As written, this regulation does not apply to IJs determining release at bond hearings. See Matter of Adeniji , 22 I. & N. Dec. at 1112 ("An Immigration Judge is not authorized to issue a warrant of arrest."). Nevertheless, the BIA concluded that 8 C.F.R. § 236.1(c)(8) provided the appropriate standard "for ordinary bond determinations" under 8 U.S.C. § 1226(a). Matter of Adeniji , 22 I. & N. Dec. at 1113. Thus, at a § 1226(a) bond hearing, a noncitizen must demonstrate that his release would not pose a danger to the community and that he is likely to appear "even though [ § 1226(a) ] does not explicitly contain such [ ] requirement[s]." Matter of Adeniji , 22 I. & N. Dec. at 1113. The BIA has repeatedly applied this burden of proof in subsequent opinions. See, e.g., Matter of Fatahi , 26 I. & N. Dec. 791, 795 n.3 (B.I.A. 2016) ; Matter of Guerra , 24 I. & N. Dec. 37, 40 (B.I.A. 2006).

The statutory background provides context for the issue ultimately before this Court: whether the procedures employed at Petitioner's bond hearing satisfied due process, and what—if any—additional procedural protections are necessary. Neither the Supreme Court nor the Eleventh Circuit have resolved this issue.³ Other courts around the country that have considered the burden of proof at immigration bond hearings are split. The Third Circuit stated it "perceive[d] no problem" with noncitizens bearing the burden of proof under § 1226(a). Borbot v. Warden Hudson Cty. Corr. Facility , 906 F.3d 274, 279 (3d Cir. 2018).⁴ The Ninth Circuit found that noncitizens detained under § 1226(a) are "entitled to release on bond unless the government establishes that he is a flight risk or will be a danger to the community." Casas-Castrillon v. Dep't of Homeland Sec. , 535 F.3d 942, 951 (9th Cir. 2008) (internal quotation marks and citation omitted); see Singh v. Holder , 638 F.3d 1196, 1203 (9th Cir. 2011) ("[T]he burden of establishing whether detention is justified falls on the government."). Most recently, the Second Circuit also concluded that placing the burden of proof on the government was proper. Velasco Lopez v. Decker , 978 F.3d 842, 853–56 (2d...