Pensamiento v. McDonald et al
Filing
42
Chief Judge Patti B. Saris: MEMORANDUM AND ORDER entered. "The Court DENIES Respondents motion to dismiss (Docket No. 12). Counts I and II are dismissed as moot. With respect to Count III, the Court ALLOWS the habeas corpus petition, and OR DERS that Petitioner not be re-detained unless the immigration court holds a new custody hearing at which the government must prove that Pensamientos detention is necessary because he is dangerous or a flight risk. The Court dismisses Joseph D. McDonald, Jr., because Antone Moniz and Thomas Brophy are the appropriate respondents. " (Coppola, Katelyn)
Case 1:18-cv-10475-PBS Document 42 Filed 05/21/18 Page 1 of 20
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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SAMUEL PENSAMIENTO,
Petitioner,
v.
JOSEPH D. MCDONALD, JR., et al.,
Respondents.
______________________________
Civil Action
No. 18-10475-PBS
MEMORANDUM AND ORDER
May 21, 2018
Saris, C.J.
INTRODUCTION
Petitioner Samuel Pensamiento, who was born in Guatemala,
is married to a United States citizen, with whom he recently had
a child. He has been in Immigration and Customs Enforcement
(“ICE”) custody since January 31, 2018, when he reported to
Chelsea District Court for a pretrial hearing on misdemeanor
criminal charges. ICE was waiting at the courthouse and detained
him. Pensamiento filed a habeas petition pursuant to 28 U.S.C.
§ 2241, claiming that ICE was refusing to transport him to his
criminal proceedings in state court and that his detention was
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unlawful because he had not received a constitutionally adequate
bond hearing in immigration court.1
On March 15, 2018, the judge on emergency duty (Burroughs,
J.) entered a temporary restraining order and ordered ICE to
deliver Pensamiento to his next hearing on the misdemeanor
charges. See Docket No. 17 at 1-2. The order disposed of Counts
I and II in Pensamiento’s habeas petition. The only remaining
claim for relief is Count III, in which Petitioner seeks release
from detention, or, at the least, a detention hearing before
this Court at which the government is required to prove by clear
and convincing evidence that he is a danger to others or a
flight risk. Respondents have moved to dismiss pursuant to Rules
12(b)(1) and 12(b)(6), and Petitioner opposed on April 6, 2018.
At the hearing on April 25, 2018, on the motion to dismiss
and the merits of the habeas petition, the government agreed to
release Pensamiento for 30 days so that he could be present for
the birth of his child. However, the parties agreed he would be
placed back in detention unless the Court allowed his habeas
petition.
After a review of the briefs, the Court DENIES Respondents’
motion to dismiss (Docket No. 12). The Court ALLOWS the habeas
1
On May 14, 2018, the Court issued a memorandum and order in
Figueroa v. McDonald, which addressed similar constitutional
issues. See Figueroa v. McDonald, Civil No. 18-10097-PBS, 2018
WL 2209217 (D. Mass. May 14, 2018).
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petition, and ORDERS that Petitioner not be detained again
unless the immigration court holds a bond hearing where the
government bears the burden of proving that Pensamiento must be
detained because he is dangerous or a flight risk.
FACTUAL BACKGROUND
Pensamiento is a 26-year-old Guatemalan national who
arrived in the United States in 2013 after fleeing persecution
in his home country. Pet. (Docket No. 1) ¶¶ 9, 12. He was
apprehended, began asylum proceedings, and was released on bond
in September 2013. Pet. ¶ 13. Petitioner was authorized to work
during the pendency of his removal proceedings and received a
Massachusetts driver’s license. Pet. ¶ 14.
He met Yaritza Moreno, a United States citizen, while they
were working in the same restaurant and while his asylum
application was pending. Pet. ¶¶ 10, 15. Pensamiento and Moreno
married in August 2016. Pet. ¶ 15. Moreno filed a Form I-130
petition to sponsor Pensamiento to become a lawful permanent
resident, which was approved by the U.S. Citizenship and
Immigration Service (“USCIS”) on March 9, 2017. Pet. ¶ 16. Based
on that approval, which provides a pathway to becoming a
permanent resident, the Immigration Judge (“IJ”)
administratively closed Pensamiento’s removal proceedings on
September 20, 2017. Pet. ¶ 18.
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The Chelsea police arrested Petitioner on December 17,
2017, after a car accident and charged him with two misdemeanor
counts: (1) leaving the scene of an accident resulting in
property damage, and (2) leaving the scene of an accident
resulting in personal injury. Pet. ¶ 20. He was arraigned on
December 18, 2017, and released on personal recognizance. Pet.
¶¶ 20–21. Pensamiento had a pretrial hearing scheduled for
January 31, 2018. Pet. ¶ 22. After the hearing, he was arrested
by ICE at the courthouse and detained. Pet. ¶ 22. Pensamiento’s
removal proceedings have been re-calendared since his arrest.
Pet. ¶ 23. They remain pending, and no final order of removal
has been entered. See Pet. ¶ 23.
Petitioner’s initial custody redetermination hearing was
held on February 13, 2018. Pet. ¶ 24. The IJ required
Pensamiento to prove that he was not dangerous or a flight risk
by clear and convincing evidence. Pet. ¶ 24. Based on the police
report of the then-pending misdemeanor charges, the IJ found
that Petitioner had not carried his burden on the dangerousness
inquiry and denied him bond. Pet. ¶ 24.
On March 19, 2018, Petitioner pleaded guilty to leaving the
scene of an accident resulting in property damage and was
ordered to pay a $200 fine. Docket No. 26-1 at 8. Other than the
guilty plea for this misdemeanor, Pensamiento has no criminal
record anywhere in the world. See Pet. ¶ 11. The Commonwealth
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dismissed the charge of leaving the scene of an accident
resulting in personal injury. Docket No. 26-1 at 8.
Pensamiento had a second bond hearing on April 3, 2018,
after the charges were resolved. Docket No. 26-2 ¶ 5. Again, the
IJ placed the clear-and-convincing burden on Petitioner and
denied his request for release. Docket No. 26-2 ¶ 7. There is no
evidence that Pensamiento has appealed either of the IJ’s bond
decisions to the Board of Immigration Appeals (“BIA”). See
Docket No. 26 at 6 n.2.
During the hearing on April 25, 2018, the parties reached
an agreement to temporarily release Pensamiento on a GPS
tracking device for 30 days so that he could be present for the
birth of his child. See Docket No. 33. It is the Court’s
understanding that he has been released on these conditions.
DISCUSSION
I.
Motion to Dismiss
A.
Legal Standard
To survive a motion to dismiss under Fed. R. Civ. P.
12(b)(1), the plaintiff has the burden of establishing that
subject-matter jurisdiction exists. See Calderón–Serra v.
Wilmington Trust Co., 715 F.3d 14, 17 (1st Cir. 2013). “When a
district court considers a Rule 12(b)(1) motion, it must credit
the plaintiff's well-pled factual allegations and draw all
reasonable inferences in the plaintiff's favor.” Merlonghi v.
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United States, 620 F.3d 50, 54 (1st Cir. 2010). “The district
court may also ‘consider whatever evidence has been submitted,
such as the depositions and exhibits.’” Id. (quoting Aversa v.
United States, 99 F.3d 1200, 1210 (1st Cir. 1996)).
B.
Subject-Matter Jurisdiction
Respondents first argue that this Court lacks subjectmatter jurisdiction over Pensamiento’s habeas petition based on
the REAL ID Act. The REAL ID Act, passed in 2005, stripped the
federal district courts of jurisdiction to review aliens’
challenges to their final orders of removal. See 8 U.S.C.
§ 1252(a)(5) (“[A] petition for review filed with an appropriate
court of appeals . . . shall be the sole and exclusive means for
judicial review of an order of removal.”); id. § 1252(b)(9)
(consolidating “review of all questions of law and fact,
including interpretation and application of constitutional and
statutory provisions” arising from a removal action in the
statute’s judicial review procedure). The statute also insulates
discretionary executive decision-making from review, mandating
that “no court shall have jurisdiction to hear any cause or
claim by or on behalf of any alien arising from the decision or
action by the Attorney General to commence proceedings,
adjudicate cases, or execute removal orders against any alien.”
Id. § 1252(g).
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Despite these jurisdiction-stripping provisions, the
district court may still review habeas challenges to unlawful
immigration detention. See Aguilar v. U.S. Immigration and
Customs Enforcement Div. of Dep’t of Homeland Sec., 510 F.3d 1,
11 (1st Cir. 2007) (“[D]istrict courts retain jurisdiction over
challenges to the legality of detention in the immigration
context.”). The court’s habeas jurisdiction “encompasses
constitutional challenges regarding the availability of bail.”
Id. Thus, Pensamiento’s petition brings precisely the type of
claim that the First Circuit has held to be within the district
court’s jurisdiction. See id.
Respondents next argue that, to the extent Petitioner is
asking this Court to review the IJ’s discretionary decision to
deny his release, jurisdiction is precluded by 8 U.S.C.
§ 1226(e). Congress has eliminated judicial review of
discretionary custody determinations. See 8 U.S.C. § 1226(e).
Section 1226(e) states: “No court may set aside any action or
decision by the Attorney General under this section regarding
the detention or release of any alien or the grant, revocation,
or denial of bond or parole.” Id. This provision has been held
to bar an alien’s challenge to “a ‘discretionary judgment’ by
the Attorney General or a ‘decision’ that the Attorney General
has made regarding his detention or release.” Demore v. Kim, 538
U.S. 510, 516 (2003).
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What § 1226(e) does not bar, however, are constitutional
challenges to the immigration bail system. See Jennings v.
Rodriguez, 138 S. Ct. 830, 841 (2018) (holding that challenges
to “the extent of the Government’s detention authority” are not
precluded by § 1226(e)); Demore, 538 U.S. at 517; see also Singh
v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011) (“[C]laims that
the discretionary process itself was constitutionally flawed are
‘cognizable in federal court on habeas.’” (quoting GutierrezChavez v. INS, 298 F.3d 824, 829 (9th Cir. 2002))).
The Court’s jurisdiction is not barred by § 1226(e) in this
case. Pensamiento is not challenging the IJ’s discretionary
decision to keep him in detention. Instead, he is arguing that
the immigration bond system, in which aliens detained pursuant
to § 1226(a) must prove they are not dangerous and are not
flight risks, is unconstitutional. See Docket No. 26 at 6. This
type of constitutional claim “falls outside of the scope of
§ 1226(e)” because it is not a matter of the IJ’s discretionary
judgment. Jennings, 138 S. Ct. at 841. This Court has subjectmatter jurisdiction over Pensamiento’s habeas petition.
C.
Exhaustion of Administrative Remedies
In a footnote in their motion to dismiss, Respondents claim
that judicial review is barred because Petitioner failed to
exhaust his administrative remedies prior to filing his habeas
petition. See Docket No. 13 at 7 n.8. The argument is not well
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developed and is waived, but the Court addresses it briefly
here.
There is no statutory exhaustion requirement to which
Pensamiento must adhere. See Flores-Powell v. Chadbourne, 677 F.
Supp. 2d 455, 463 (D. Mass. 2010). In this case, moreover,
Pensamiento did argue before the IJ that the burden of proof
should be placed on the government. See Docket No. 26-2 ¶ 4.
Furthermore, any appeal to the BIA would be futile based on the
burden allocation holding of In re Guerra, 24 I. & N. Dec. 37
(BIA 2006). See id. at 38. For these reasons, the Court does not
require Petitioner to fully exhaust his administrative remedies.
See McCarthy v. Madigan, 503 U.S. 140, 146-49 (1992) (listing
“circumstances in which the interests of the individual weigh
heavily against requiring administrative exhaustion,” including
instances where it would be futile), superseded by statute on
other grounds, Prison Litigation Reform Act of 1995, Pub. L. No.
104-134, § 803, 110 Stat. 1321.
II.
Merits of the Habeas Petition
A.
Legal Framework for Bond Hearings
Pensamiento is detained under 8 U.S.C. § 1226(a). Pursuant
to that provision, “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). When the alien is not a
criminal alien, the Attorney General may continue to detain him
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or may release him on “bond of at least $1,500 with security
approved by, and containing conditions prescribed by, the
Attorney General” or “conditional parole.” Id. § 1226(a)(1)–(2).
After ICE makes the initial decision to detain an alien, the
alien may request a custody redetermination hearing from an IJ
at any time before a removal order becomes final. 8 C.F.R.
§ 236.1(d)(1). The IJ’s bond decision is appealable to the BIA.
8 C.F.R. § 1003.19(f). Notably, § 1226(a) is silent as to
whether the government or the alien bears the burden of proof at
a custody redetermination hearing and what amount of evidence
would satisfy that burden. See 8 U.S.C. § 1226(a).
In denying Pensamiento discretionary release on bond, the
IJ relied on the decision by the BIA in Guerra, which sets out
the agency’s interpretation of that statutory silence. The BIA
has held that, in a custody redetermination hearing under
§ 1226(a), “[t]he burden is on the alien to show to the
satisfaction of the [IJ] that he or she merits release on bond.”
Guerra, 24 I. & N. Dec. at 40; accord In re Adeniji, 22 I. & N.
Dec. 1102, 1116 (BIA 1999) (holding that “respondent must
demonstrate that his release would not pose a danger to property
or persons, and that he is likely to appear for any future
10
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proceedings”).2 The alien must show that he is not “a threat to
national security, a danger to the community at large, likely to
abscond, or otherwise a poor bail risk.” Guerra, 24 I. & N. Dec.
at 40. Since Adeniji, the BIA has repeatedly reaffirmed that the
burden should be on the alien. See Matter of Fatahi, 26 I. & N.
Dec. 791, 793 (BIA 2016); Guerra, 24 I. & N. Dec. at 40.
The IJ required Pensamiento to demonstrate that he was not
dangerous by clear and convincing evidence, but the “clear and
convincing” standard appears nowhere in Guerra or Adeniji. The
“clear and convincing” language does appear in a regulation,
which the IJ cited. See 8 C.F.R. § 1003.19(h)(3). However, that
regulation does not seem to be applicable to Petitioner.3 It
applies to “alien[s] subject to section 303(b)(3)(A) of Div. C
of Pub. L. 104-208” -- a provision dealing with “Transition
Period Custody Rules” and criminal aliens. Id.; see also Illegal
Immigration Reform and Immigrant Responsibility Act of 1996,
2
This language is drawn from a regulation governing the
authority of immigration officers who may issue arrest warrants.
See 8 C.F.R. § 236.1(c)(8) (requiring the alien to “demonstrate
to the satisfaction of the officer” that he is neither dangerous
nor a flight risk to be released). The BIA has applied the
burden allocation and standard of proof in 8 C.F.R.
§ 236.1(c)(8) to bond determinations by IJs. See Adeniji, 22 I.
&. N. Dec. at 1112-13.
3
At the hearing on April 25, 2018, the government suggested
that the clear and convincing standard in 8 C.F.R.
§ 1003.19(h)(3) might apply to Pensamiento. See Docket No. 40 at
29-30. No legal authority to support this suggestion has been
presented to the Court.
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Pub. L. No. 104-208, § 303, 110 Stat. 3009 (1996). Accordingly,
as a preliminary matter, the IJ’s holding appears to violate the
evidentiary standard set by the BIA.
Recently, the Supreme Court has addressed the procedures
required in a custody redetermination hearing under § 1226(a).
See Jennings, 138 S. Ct. at 847–48. In that case, the class had
originally argued that, absent a requirement for periodic bond
hearings, 8 U.S.C. §§ 1225(b), 1226(a), and 1226(c) would
violate the Due Process Clause. See id. at 839. Instead of
addressing the constitutional argument, however, the Ninth
Circuit employed the canon of constitutional avoidance and
interpreted § 1226(a) to require “periodic bond hearings every
six months in which the Attorney General must prove by clear and
convincing evidence that the alien’s continued detention is
necessary.” Id. at 847. But the Supreme Court held that
“[n]othing in § 1226(a)’s text . . . even remotely supports the
imposition of either of those requirements.” Id. (emphasis
added). The Supreme Court reversed and remanded to the Ninth
Circuit with instructions to consider the constitutional
questions on the merits. See id. at 851.
Thus, while the Supreme Court has held that § 1226(a) does
not mandate that a clear and convincing evidence burden be
placed on the government in bond hearings, it left open the
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question of whether the Due Process Clause does. Pensamiento
asks the Court to answer that question today.
B.
Analysis
Petitioner maintains that the Constitution requires an
immigration bond hearing at which the government must prove by
clear and convincing evidence that an alien is dangerous or
poses a flight risk before the alien can be detained. See Pet. ¶
40. Essentially, Pensamiento asks this Court to hold that his
initial bond redetermination hearing violated the Due Process
Clause because the IJ placed the burden of proof on him,
pursuant to Adeniji and Guerra. See Docket No. 26 at 7.
The Fifth Amendment’s Due Process Clause mandates that
“[n]o person shall . . . be deprived of life, liberty, or
property, 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 (2001). The Supreme Court has held that the
Due Process Clause “applies to all ‘persons’ within the United
States, including aliens, whether their presence here is lawful,
unlawful, temporary, or permanent.” Id. at 693.
At least one circuit has already held that, in § 1226(a)
custody hearings, the Constitution mandates that (1) the burden
must be placed on the government and (2) the standard is clear
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and convincing evidence. See Singh, 638 F.3d at 12034; see also
Doe v. Smith, Civil No. 17-11231-LTS, 2017 WL 6509344, at *6 (D.
Mass. Dec. 19, 2017) (noting that “in some circumstances, due
process requires noncitizens whose detention has become
unreasonably prolonged to be afforded bond hearings at which
[the government] bears the burden of proving dangerousness or
risk of flight by clear and convincing evidence”); see generally
Mary Holper, The Beast of Burden in Immigration Bond Hearings,
67 Case W. Res. L. Rev. 75 (2016) (arguing that the current
burden allocation does not comport with the Due Process Clause).
In Singh, the Ninth Circuit reasoned that “due process
requires ‘adequate procedural protections’ to ensure that the
government’s asserted justification for physical confinement
‘outweighs the individual’s constitutionally protected interest
in avoiding physical restraint.’” Singh, 638 F.3d at 1203
(quoting Casas-Castrillon v. Dep’t of Homeland Sec., 535 F.3d
942, 950 (9th Cir. 2008)). The Ninth Circuit held that the
Prior to Singh, the Ninth Circuit had employed the canon of
constitutional avoidance to construe § 1226(a) as requiring the
Attorney General to provide a bond hearing to an alien detained
for a prolonged period. See Casas-Castrillon v. Dep’t of
Homeland Sec., 535 F.3d 942, 951 (9th Cir. 2008). This statutory
holding does not survive Jennings. See Jennings, 138 S. Ct. at
847–48 (looking at the text of § 1226(a) and refusing to read
procedural protections into it). However, in Jennings, the
Supreme Court did not address the Ninth Circuit’s constitutional
holding in Singh about the burden and standard of proof when a
hearing does occur. See Cortez v. Sessions, No. 18-cv-01014-DMR,
2018 WL 1510187, at *9 (N.D. Cal. Mar. 27, 2018).
4
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government is the party who must prove detention is justified.
See id.; cf. Foucha v. Louisiana, 504 U.S. 71, 81-82 (1992)
(striking down Louisiana statute for continued detention of
defendants acquitted based on insanity under the Due Process
Clause because “the statute place[d] the burden on the detainee
to prove that he is not dangerous,” and civil commitment
required the government to prove by clear and convincing
evidence that an individual needed to be detained). In the case
of a deprivation of liberty in the immigration context, the
Ninth Circuit further held that the clear and convincing
evidence standard was necessary “[b]ecause it is improper to ask
the individual to ‘share equally with society the risk of error
when the possible injury to the individual’ . . . is so
significant.” Singh, 638 F.3d at 1203–04 (quoting Addington v.
Texas, 441 U.S. 418, 427 (1979)).
Here, in support of its argument that the burden is
properly placed on the alien, the government cites Demore and
Zadvydas in a footnote. See Docket No. 38 at 3 n.1. In Demore, a
criminal alien who conceded that he was deportable was subject
to mandatory detention pending his removal proceedings under
8 U.S.C. § 1226(c). See 538 U.S. at 513-14. Before enacting that
statutory provision, Congress had found that over 20 percent of
deportable criminal aliens who had been released on bond failed
to appear for their removal proceedings. Id. at 519-20.
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Moreover, one study showed that 77 percent of deportable
criminal aliens were arrested again upon release, and 45 percent
were arrested multiple times. Id. at 518-19. Noting that
mandatory detention under § 1226(c) was Congress’s response to
those findings, the Supreme Court reiterated that “[d]etention
during removal proceedings is a constitutionally permissible
part of that process.” Id. at 531. The Court further held that
no individualized bond hearing was constitutionally necessary,
because “when the Government deals with deportable aliens, the
Due Process Clause does not require it to employ the least
burdensome means to accomplish its goal.” Id. at 528, 531.
But Demore is not applicable here because it involved
criminal aliens subject to mandatory detention. In contrast,
this case involves a different statutory section, § 1226(a),
which permits release of non-criminal aliens pending their
removal proceedings. The Supreme Court has not yet determined
what process is due when an IJ does hold an individualized bond
hearing for non-criminal aliens.
Zadvydas provides some guidance, although it too deals with
a different question: indefinite detention in the post-removal
period. There, the Supreme Court explained that it had “upheld
preventive detention based on dangerousness only when limited to
specially dangerous individuals and subject to strong procedural
protections.” Zadvydas, 533 U.S. at 690-91. The Court then cited
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to criminal pretrial detention and civil commitment cases,
making it clear that one important procedural protection for
preventive detention is the placement of the burden of proof on
the government. See id. at 691 (comparing United States v.
Salerno, 481 U.S. 739 (1987), in which Court upheld Bail Reform
Act, with Foucha, in which Court struck down civil detention
statute with burden on detainee). And, while Zadvydas requires
detained aliens to initially produce evidence that they are
unlikely to be removed within a reasonable time period, the
government still holds the final burden of persuading a court
that continued detention is justified. See id. at 701 (“[O]nce
the alien provides good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable
future, the Government must respond with evidence sufficient to
rebut that showing.”).
With the guideposts of Zadvydas and Demore, this Court
holds that the Constitution requires placing the burden of proof
on the government in § 1226(a) custody redetermination hearings.
Requiring a non-criminal alien to prove that he is not dangerous
and not a flight risk at a bond hearing violates the Due Process
Clause. See Singh, 638 F.3d at 1203. In cases where a noncriminal alien’s liberty may be taken away, due process requires
that the government prove that detention is necessary. See
Foucha, 504 U.S. at 81-82; Addington, 441 U.S. at 427. This is
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especially true when individuals may be detained for extended
periods of time. See Jennings, 138 S. Ct. at 860 (Breyer, J.,
dissenting) (stating that class members had been detained for
periods ranging from six months to 831 days while pursuing
asylum petitions).
Pensamiento argues that the standard of proof in bond
hearings under § 1226(a) must be clear and convincing evidence
to provide due process. This challenge presents a more difficult
question in light of the Supreme Court’s holding that the
government need not use the “least burdensome means to
accomplish its goal” to comport with the Due Process Clause.
Demore, 538 U.S. at 528. Currently, the alien must prove “to the
satisfaction of the [IJ]” that he is neither dangerous nor a
flight risk. Guerra, 24 I. & N. Dec. at 40. If that same burden
were placed on the government, the Court is not persuaded that
that standard would violate the Due Process Clause.
Finally, Petitioner must show he was prejudiced by the
constitutional error. See Singh, 638 F.3d at 1205-06. If the
government had borne the burden of proof, the IJ could well have
found that Pensamiento was not dangerous based on a single
misdemeanor conviction, for which he was fined $200. But see
Maldonado-Velasquez v. Moniz, 274 F. Supp. 3d 11, 13 (D. Mass.
2017) (finding immigration detainee challenging burden
allocation was not prejudiced when detainee had four arrests and
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nine charges, including carrying a dangerous weapon, possession
of ammunition, and assault with a dangerous weapon).
The government’s response to Petitioner’s due process claim
is that the BIA’s decision to place the burden on the alien is
entitled to deference under Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, 467 U.S. 837 (1984).5 See Docket No.
38 at 1-9. Respondents’ main argument is that requiring the
alien to prove she should be released from detention is a
reasonable interpretation of § 1226(a) because it is consistent
with Congress’s intent in enacting the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996. See Docket No.
38 at 7-9. The government urges the Court to grant the agency
deference and dismiss the petition on this basis under Rule
12(b)(6). See Docket No. 38 at 8-9. Regardless of whether or not
Chevron deference applies to the BIA’s interpretation of the
statute, 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. A new bond hearing
5
The government has not rebutted Petitioner’s due process
argument with constitutional counterarguments. See Docket No. 13
at 2-9; Docket No. 38 at 1-9.
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with the correct burden of proof is therefore required under the
Due Process Clause of the Fifth Amendment.6
ORDER
The Court DENIES Respondents’ motion to dismiss (Docket No.
12). Counts I and II are dismissed as moot. With respect to
Count III, the Court ALLOWS the habeas corpus petition, and
ORDERS that Petitioner not be re-detained unless the immigration
court holds a new custody hearing at which the government must
prove that Pensamiento’s detention is necessary because he is
dangerous or a flight risk. The Court dismisses Joseph D.
McDonald, Jr., because Antone Moniz and Thomas Brophy are the
appropriate respondents.
/s/ PATTI B. SARIS
____
Patti B. Saris
Chief United States District Judge
6
Pensamiento raises two additional arguments in his
opposition to the motion to dismiss. Pensamiento says that
§ 1226(a) can be read to “implicitly” place the burden of proof
on the government, “in light of other provisions in the
Immigration and Nationality Act.” Docket No. 26 at 9. Petitioner
also argues that Adeniji and its progeny established an agency
rule that is arbitrary and capricious under the Administrative
Procedure Act. See 5 U.S.C. § 706(2)(A). Because the Court has
ruled on the due process issue in Count III of the petition, it
does not reach Pensamiento’s alternative arguments here.
20
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