Cantor v. Freden

Filing 13

DECISION AND ORDER: The petition filed by Denny Molina Cantor, Docket Item 1 , is granted in part. Within 14 calendar days from the date of this decision and order, the government must release Cantor unless it demonstrates by clear and convincing e vidence before a neutral decisionmaker that Cantor's continued detention is necessary to serve a compelling regulatory purpose, such as minimizing risk of flight or protecting others or the community. As part of that calculus, the decisionmaker must consider—and must address in any decision—whether there is clear and convincing evidence that there are no less-restrictive alternatives to physical detention, including release on conditions, that would reasonably address the governme nt's interest in detaining Cantor. In other words, the decisionmaker must find, by clear and convincing evidence, that no condition or combination of conditions of release can reasonably ensure Cantor's appearance and the safety of the comm unity—that is, even with conditions, Cantor presents an identified and articulable risk of flight or a threat to another person or the community. Within 30 days of the date of this decision and order, the government shall file an affidavit certifying compliance with this order. That affidavit should include a copy of the bond hearing order.SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 1/7/2025. (ZHM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DENNY MOLINA CANTOR,
Petitioner,
v.

24-CV-764-LJV
DECISION & ORDER

JOSEPH FREDEN, et al.,
Respondents.
The petitioner, Denny Molina Cantor, has been detained in the custody of
the United States Department of Homeland Security (“DHS”), Immigration and Customs
Enforcement (“ICE”), since November 16, 2021—more than three years. Docket Item 1
at ¶¶ 7, 50. On August 15, 2024, Cantor filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2241 challenging his ongoing detention at the Buffalo Federal
Detention Facility in Batavia, New York, and requesting either his immediate release or
a “constitutionally adequate” bond hearing. Docket Item 1 at 1, 1 29, and ¶ 7.
The government agreed to provide Cantor with an individualized bond hearing at
which the government would bear the burden of proving, by clear and convincing
evidence, that Cantor “poses a future danger to the community or a flight risk.” Docket
Item 5 at ¶ 1. The government also agreed that, in determining whether Cantor poses a
flight risk, the immigration judge (“IJ”) conducting the bond hearing must consider
whether that risk of flight could be ameliorated by reasonable conditions of supervision.

1 Docket citations without paragraph numbers refer to ECF pagination.

Id. But the government disagreed that the IJ also must consider whether alternatives to
detention mitigated Cantor’s danger to the community. Id. at ¶ 2.
In this context, this Court previously has held that due process mandates that a
neutral decisionmaker consider whether alternatives to detention could satisfy the
government’s interest in mitigating any potential danger to the community posed by a
noncitizen detainee. See, e.g., Davis v. Garland, 2023 WL 1793575, at *2 (W.D.N.Y.
Feb. 7, 2023); Hechavarria v. Whitaker, 358 F. Supp. 3d 227, 241-42 (W.D.N.Y. 2019).
Nevertheless, the government argues that the Second Circuit’s opinion in Black v.
Decker, 103 F.4th 133 (2d Cir. 2024), precludes such a remedy and that “due process
does not require consideration of alternatives to detention when dangerousness is
shown.” Docket Item 8 at 10-11.
For the reasons that follow, this Court disagrees with the government and
reaffirms its prior decisions. Accordingly, the Court grants Cantor’s petition in part—he
must receive an individualized bond hearing at which the government bears the burden
of proving, by clear and convincing evidence, that he poses a danger to the community
or a flight risk. And at that hearing, a neutral decisionmaker must consider whether
alternatives to detention can reasonably address the government’s interest in his
continuing detention.

2

FACTUAL AND PROCEDURAL BACKGROUND 2
Cantor is a native of Honduras. Docket Item 1 at ¶ 25. He entered the United
States in 2007 “and has not left since.” Id. In 2017, he “became the father of a . . .
daughter” with United States citizenship. Id.
More than a decade after he entered the United States, Cantor “was arrested
based on an accusation that he sexually abused the minor daughter . . . of his then
partner.” Id. at ¶ 33. He subsequently was indicted for violating New York Penal Law
(“NYPL”) §§ 130.75 (course of sexual conduct against a child in the first degree) and
260.10(1) (endangering the welfare of a child). Docket Item 1 at ¶ 33. Prior to trial,
Cantor pleaded guilty to endangering the welfare of a child and was sentenced to time
served and three years’ probation. Id. at ¶¶ 36, 37. According to Cantor, he was given
the opportunity to enter that plea in exchange for the other charge being dismissed after
the prosecution, acting under its Brady obligations, disclosed evidence that cast doubt
on the victim’s credibility. Id. at ¶¶ 35-37.
Following Cantor’s guilty plea, on November 16, 2021, ICE arrested and detained
him. Id. at ¶ 39. ICE issued a “Notice to Appear” charging that Cantor was subject to
removal from the United States under the Immigration and Nationality Act (“INA”), 8
U.S.C. §§ 1101-1537. Docket Item 1 at ¶ 40. More specifically, ICE charged that
Cantor was subject to removal under section 1182(a)(6)(A)(i) for being “present without
2 Unless otherwise noted, the following facts are taken from Cantor’s petition,

Docket Item 1, and the documents attached to that petition, including his Notice to
Appear, Docket Items 1-2 through 1-8. The Court also takes judicial notice of Cantor’s
immigration proceedings. See Pina Morocho v. Mayorkas, 2023 WL 1995283, at *3-4
(S.D.N.Y. Jan. 25, 2023) (taking judicial notice of petitioner’s immigration proceedings in
considering petition).
3

admission or parole.” Docket Item 1 at ¶ 40; see also Docket Item 1-7 (Cantor’s Notice
to Appear).
Cantor has sought relief from his removal by filing an application for asylum,
withholding of removal, and protection under the Convention Against Torture (“CAT”).
Docket Item 1 at ¶ 26. An IJ granted withholding of removal and CAT protection, but
that decision was appealed to the Board of Immigration Appeals (“BIA”), which
remanded his case for further fact finding on three issues related to Cantor’s application
for relief from removal. Id. at ¶¶ 30-31. As the government indicates, on remand, the IJ
(presumably after conducting that fact finding) ordered Cantor’s removal. Docket Item 8
at 6-7. Cantor has since appealed that removal order to the BIA. 3 Id.
On March 1, 2022, while Cantor pursued that relief from removal, he was given a
bond hearing under 8 U.S.C. § 1226(a), at which he “carried the burden to prove he was
not a danger to the community.” Id. at ¶¶ 41, 45. After the hearing, the IJ denied bond,
finding that Cantor had “submitted insufficient documentation to disprove the abuse
allegation.” Id. at ¶ 45. Cantor appealed the IJ’s decision to the BIA, which “revers[ed]
the IJ’s dangerousness finding and remand[ed] the case back to the IJ to reassess
[Cantor]’s dangerousness.” Id. at ¶ 46. The BIA found that the IJ had improperly
credited “dropped charges considering the exculpatory Brady evidence in” Cantor’s
case. Id.
Cantor received a second bond hearing on February 14, 2023, at which he again
had the burden to show that he was not a danger to the community. See id. at ¶¶ 47-

3 In his petition, Cantor said that he “may appeal” a negative BIA decision to the

Second Circuit. See Docket Item 1 at ¶ 31.

4

48. Again, the IJ denied bond. Id. at ¶ 48. After Cantor appealed, “the BIA issued a
one sentence[] decision affirming the IJ’s decision without opinion, deeming it the final
agency determination.” Id. at ¶ 49.
Cantor has remained in detention since November 16, 2021. See id. at ¶¶ 7, 50.
He currently is detained at the Buffalo Federal Detention Facility (“BFDF”) in Batavia,
New York. Id. at ¶ 7. While in custody, “[h]is movement is restricted, . . . he has limited
access to the internet and calls to family and counsel, [he has] no access to a
cellphone, and he is detained far away from his family and counsel.” Id. at ¶ 52. Cantor
also alleges that “[h]e is confined to his cell for 18 to 19 hours a day,” id., is being
“denied an adequate wellness diet for his prediabetic condition,” id., and is suffering
“anxiety, depression[,] and auditory hallucinations.” Id. at ¶ 53.
The conditions of his confinement at BFDF led Cantor to file a complaint with the
DHS Inspector General, the DHS Office for Civil Rights and Civil Liberties, and the
Office of the Immigration Detention Ombudsman. Id. That complaint raised the same
allegations about the conditions of his detention and also “detail[ed] . . . additional
instances of the many failures and abuses perpetrated by staff relating [to] their
interactions with detainees and responses to medical emergencies.” Id.
On August 15, 2024, Cantor filed a petitioner for a writ of habeas corpus under
28 U.S.C. § 2241 with this Court. See Docket Item 1. Cantor’s petition alleges that by
not placing the burden to demonstrate dangerousness on the government, the two bond
hearings he received violated his Fifth Amendment right to due process, did not comport
with the statutory procedures contained in 18 U.S.C. § 1226(a), and were arbitrary and
capricious in violation of the Administrative Procedure Act. Id. at ¶¶ 79-95. Cantor

5

therefore asked this Court to grant his petition and order that he be immediately
released or, in the alternative, given a “constitutionally adequate” bond hearing at which
the government would bear the burden of proving, “by clear and convincing evidence,
that his continued detention is warranted due to dangerousness or flight risk that cannot
be sufficiently mitigated by a detention alternative or reasonable monetary bond.” Id. at
¶ 6.
As discussed above, Cantor and the government subsequently stipulated that the
government would provide Cantor “with an individualized bond hearing before an [IJ] at
which the government bears the burden of establishing, by clear and convincing
evidence, that [Cantor] poses a future danger to the community or a flight risk.” Docket
Item 5 at ¶ 1. The parties also agreed that at the individualized bond hearing, “[i]n
determining whether the government has carried its burden of establishing that [Cantor]
is a flight risk, the [IJ] must consider whether such risk may be mitigated by reasonable
conditions of supervision or monetary bond.” Id. Finally, they agreed that “[i]f the [IJ]
sets a monetary bond, he or she must consider [Cantor]’s ability to pay in determining
the appropriate bond amount.” Id.
But Cantor and the government disagreed about one requirement of the bond
hearing: “whether the [IJ] must also consider, when determining [whether] the
government has carried its burden of establishing that [Cantor] poses a danger to the
community, whether danger to the community may be mitigated by alternatives to
detention, such as reasonable conditions of supervision or monetary bond.” Id. at ¶ 2.
Cantor and the respondents therefore briefed the issue, Docket Items 7, 8, and 9, and

6

asked this Court to decide it. See Docket Item 5 at ¶ 3. The Court then heard oral
argument, Docket Item 12.
DISCUSSION
Cantor says that due process requires an IJ to consider alternatives to detention
in determining whether he poses a danger to the community. See Docket Item 7 at 514; see also Docket Item 1 at ¶¶ 80-81 (claiming that Cantor’s two prior bond hearings,
at which he bore the burden of proving that he did not pose a danger or flight risk,
violated his right to due process). The government disagrees, arguing that the Second
Circuit’s opinion in Black precludes considering alternatives to detention once there has
been a finding that the noncitizen detainee poses a danger to the community. See
Docket Item 8 at 7-13. For the reasons that follow, this Court agrees with Cantor.
The Fifth Amendment’s Due Process Clause forbids the government from
depriving any “person . . . of . . . liberty . . . without due process of law.” U.S. Const.
amend. V. “[T]he Due Process Clause covers noncitizens, whether their presence here
is lawful, unlawful, temporary, or permanent.” Velasco Lopez v. Decker, 978 F.3d 842,
850 (2d Cir. 2020). Although the Due Process Clause is not offended by the mandatory
detention of noncitizens for the “brief period necessary for their removal proceedings,”
see Demore v. Kim, 538 U.S. 510, 513 (2003), it may be violated by detention beyond
that “brief” period, depending on the balance between the individual’s and the
government’s interests, see, e.g., id. at 532-33 (Kennedy, J., concurring); see also
Velasco Lopez, 978 F.3d at 853 (“‘[A]s the period of . . . confinement grows,’ so do the
required procedural protections no matter what level of due process may have been

7

sufficient at the moment of initial detention.” (alteration in original) (quoting Zadvydas v.
Davis, 533 U.S. 678, 701 (2001)).
This Court “has evaluated procedural due process challenges to immigration
detention with a two-step inquiry.” Davis v. Garland, 2022 WL 17155828, at *5
(W.D.N.Y. Nov. 22, 2022) (quoting Hemans v. Searls, 2019 WL 955353, at *5 (W.D.N.Y.
Feb. 27, 2019)). First, the Court decides whether the noncitizen’s detention has
become unreasonably prolonged. Davis, 2023 WL 1793575, at *4. If it has, the Court
“then considers what process is necessary to justify that detention,” id., looking to the
three-factor balancing test from Mathews v. Eldridge, 424 U.S. 319 (1976). See
Velasco Lopez, 978 F.3d at 851. Under that test, the Court “evaluates (A) the private
interest affected; (B) the risk of erroneous deprivation of that interest through the
procedures used; and (C) the governmental interest at stake.” Nelson v. Colorado, 581
U.S. 128, 135 (2017). “The ultimate balance involves a determination as to when,
under our constitutional system, judicial-type procedures must be imposed upon
administrative action.” Mathews, 424 U.S. at 348.
At the first step, the government does not appear to dispute that Cantor’s
detention has become unreasonably prolonged. And for good reason—at more than
three years, it almost certainly has. See, e.g., Iwu v. Searls, 2024 WL 2176945, at *3-5
(W.D.N.Y. May 15, 2024) (finding that noncitizen’s detention of more than 17 months
was unreasonably prolonged); Davis, 2022 WL 17155828, at *5 (noncitizen’s detention
for more than three years was unreasonably prolonged); see generally Hemans, 2019
WL 955353, at *6-7 (summarizing considerations relevant to evaluating whether
detention is unreasonably prolonged).

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Because Cantor’s detention has become unreasonably prolonged, this Court
turns to the second step—the process necessary to justify his detention. And as this
Court has repeatedly held, once a noncitizen’s detention has become unreasonably
prolonged, the government must generally demonstrate, by clear and convincing
evidence at an individualized hearing before a neutral decisionmaker, that the
noncitizen’s continued detention is justified. Davis, 2023 WL 1793575, at *4 (collecting
cases). This includes “consider[ing] whether less-restrictive alternatives to detention
can reasonably serve the government’s interest in detaining the noncitizen.” Id. (citing
Tapia Lopez v. Garland, 2022 WL 3009530, at *7 (W.D.N.Y. July 29, 2022)).
The government says that it is prepared to give Cantor “an individualized bond
hearing.” Docket Item 5 at ¶ 1. And as discussed earlier, the government agrees with
Cantor on the procedures that will be used to analyze his flight risk. See id. The only
area of disagreement concerns whether, at that hearing, due process compels the IJ to
consider “whether danger to the community may be mitigated by alternatives to
detention.” See id. at ¶ 2. Cantor argues that due process requires the IJ to do so,
while “[t]he government maintains that a finding of dangerousness precludes release[.]”
See id.
I.

PROCEDURAL DUE PROCESS
As it always does in cases like this, this Court analyzes the issue under the

guidance provided by Mathews. See Velasco Lopez, 978 F.3d at 851; see also Black,
103 F.4th at 155 (noting that “the Mathews factors again serve as our guide” in
analyzing procedures ordered by district court for bond hearing).

9

A.

The Private Interest Affected

Cantor’s interest here “is the most significant liberty interest there is—the interest
in being free from imprisonment.” Velasco Lopez, 978 F.3d at 851 (citing Hamdi v.
Rumsfeld, 542 U.S. 507, 529 (2004)). “Freedom from imprisonment—from government
custody, detention, or other forms of physical restraint—lies at the heart of the liberty
that [the Due Process] Clause protects.” Zadvydas, 533 U.S. at 690. And “[c]ase after
case instructs us that in this country liberty is the norm and detention ‘is the carefully
limited exception.’” Velasco Lopez, 978 F.3d at 851 (quoting United States v. Salerno,
481 U.S. 739, 755 (1987)).
Cantor has now been detained for more than three years while he contests his
removability from the United States. See Docket Item 1 at ¶¶ 26-27, 31. The
deprivation he has experienced during that time is substantial: He is incarcerated and
“confined to his cell for 18 to 19 hours a day”; he is so far away from his family that
“neither his family nor counsel has been able to travel to visit him in person”; and he has
no access to a cell phone. Id. at ¶ 52.
Without this Court’s intervention, those conditions likely will continue for the
foreseeable future, as there is no administrative mechanism by which Cantor can
challenge his detention. See Velasco Lopez, 978 F.3d at 852. As the Second Circuit
noted in Velasco Lopez, “[d]etention under [section] 1226(a) is frequently prolonged
because it continues until all proceedings and appeals are concluded.” Id. “Absent
release on bond . . . detention lasts through the initial removal determination
proceedings (which themselves can take months or years) and all inter-agency and
federal court appeals, even where an individual has prevailed and the [g]overnment
appeals.” Id.
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That length of detention is relevant because “[w]here the Supreme Court has
upheld detention during the pendency of removal proceedings”—such as in Demore—
“it has been careful to emphasize the importance of the relatively short duration of
detention.” Id. (citing Demore, 538 U.S. at 529); see also Demore, 538 U.S. at 529 (“[I]n
85% of the cases in which [noncitizens] are detained pursuant to [section] 1226(c),
removal proceedings are completed in an average time of 47 days and a median of 30
days. In the remaining 15% of cases, in which the [noncitizen] appeals the decision of
the [IJ] to the [BIA], appeal takes an average of four months, with a median time that is
slightly shorter.” (citations omitted)). By any calculus, Cantor’s three years of detention
far exceed the short period emphasized in Demore and may well continue without an
end in sight, especially given Cantor’s appeal pending before the BIA, Docket Item 8 at
6-7, and the possibility of him further appealing any adverse BIA decision to the Second
Circuit. See Docket Item 1 at ¶ 31.
The government argues that Cantor’s liberty interest “is undercut by the fact that
he can gain his liberty at any time of his choosing[] by acquiescing to removal and
departing [from] the United States.” Docket Item 8 at 14. But that mischaracterizes
Cantor’s liberty interest: it “is not liberty in the abstract, but liberty in the United States.”
See Parra v. Perryman, 172 F.3d 954, 958 (7th Cir. 1999). Indeed, as this Court has
previously observed, that interest in liberty in the United States must be strong for a
petitioner to subject himself to detention during a lengthy appeals process. See, e.g.,
Fremont v. Barr, 2019 WL 1471006, at *6 n.7 (W.D.N.Y. Apr. 3, 2019) (“[N]o rational
person would subject himself or herself to unreasonably prolonged detention in a jail-

11

like detention facility unless that person’s liberty interests in remaining in the United
States are quite strong.”).
Given the strength of Cantor’s interest, the length of his confinement, and the
uncertainty about when that confinement might end, the first Mathews factor weighs in
his favor.
B.

The Risk of Erroneous Deprivation and the Value of Additional
Procedural Safeguards

Under the second Mathews factor, the Court considers “the risk of an erroneous
deprivation of [the individual’s liberty] interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards.” See Mathews,
424 U.S. at 335; see also Huanga v. Decker, 599 F. Supp. 3d 131, 144 (S.D.N.Y. 2022)
(“[T]he question is whether this procedure [used at the prior bond hearing] presented a
substantial risk of an ‘erroneous deprivation’— that is, a wrongful determination that [the
petitioner] was a danger to the community.”). In light of his lengthy confinement and the
procedures used thus far, this factor likewise weighs in Cantor’s favor. That is, failing to
consider whether alternatives to detention may ameliorate any danger posed by
Cantor’s release creates a significant risk that he will be erroneously deprived of his
liberty interest.
When the government seeks someone’s civil detention to effect a compelling
regulatory purpose, it must show by clear and convincing evidence that such detention
is necessary to serve that compelling purpose and that it has “some reasonable relation
to the purpose for which the individual is committed.” See Foucha v. Louisiana, 504
U.S. 71, 79, 81-83 (1992); Addington v. Texas, 441 U.S. 418, 432-33 (1979). “For that
reason, it is not enough for a neutral decisionmaker to find that a noncitizen poses a
12

danger in some general or abstract sense; rather, the decisionmaker must consider
whether detention is truly justified under the particular circumstances.” Davis, 2023 WL
1793575, at *6.
Due process thus mandates particularized findings—usually after an evidentiary
hearing—to sustain the prolonged detention of a noncitizen based on the government’s
general interest in detaining those here unlawfully. More specifically, the “[g]overnment
[is] required, in a ‘full-blown adversary hearing,’ to convince a neutral decisionmaker by
clear and convincing evidence that no conditions of release can reasonably assure the
safety of the community or any person,” Foucha, 504 U.S. at 81 (quoting Salerno, 481
U.S. at 750), or that the noncitizen will appear for a future hearing, see Hemans, 2019
WL 955353, at *8 & n.7 (explaining that the clear and convincing standard applies to the
flight risk determination). And contrary to the government’s argument here, a neutral
decisionmaker cannot possibly make that determination without considering less
restrictive alternatives to detention. See Foucha, 504 U.S. at 81 (quoting Salerno, 481
U.S. at 751); cf. United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 816 (2000)
(“When a plausible, less restrictive alternative is offered to” a regulation burdening a
constitutional right, “it is the [g]overnment’s obligation to prove that the alternative will be
ineffective to achieve its goals.”).
As this Court has previously asked: “How can an [IJ] decide that a noncitizen’s
detention is necessary to prevent danger to the community unless the [IJ] also
considers alternatives that might eliminate that danger?” Davis, 2023 WL 1793575, at
*7. For example, a noncitizen with a history of drunk driving might well pose a serious
danger to the community. “But that danger would be ameliorated if the noncitizen were

13

released on the condition that he or she not drive a car,” id., or that he or she wear a
remote alcohol monitoring device. Or consider Cantor, who was convicted for
endangering the welfare of a child. Docket Item 1 at ¶¶ 33-37. A neutral decisionmaker
cannot fully evaluate the danger he poses to the community without first weighing the
mitigating effect of alternatives to detention, such as Cantor’s release on the condition
that he wear an ankle monitor, or that he be confined to his home, or that he not have
any contact with children in general or the victim in particular.
Perhaps conditions will be insufficient to mitigate the danger. But the IJ cannot
make that determination—indeed, the IJ cannot decide whether the noncitizen poses a
danger—until the IJ considers conditions that might ameliorate the danger. That is
simply common sense.
In sum, failing to consider whether alternatives to detention might ameliorate any
danger to the public posed by Cantor’s release clearly impacts the risk that he will be
wrongfully detained without any means of challenging the length of his detention. The
second factor thus weighs in his favor and supports the consideration of alternatives to
detention in evaluating any potential danger that Cantor poses to the community.
C.

The Government’s Interest

Finally, the Court recognizes that the government’s interest in detaining Cantor
may well be very strong. See Velasco Lopez, 978 F.3d at 854-55 (noting that the
government’s “interests in detaining noncitizens under [section] 1226(a) is (1) ensuring
that noncitizen[s] do not abscond and (2) ensuring they do not commit crimes.”). 4 It is
4 Mathews also recognizes that the government has an interest in avoiding the

“fiscal and administrative burdens that the additional or substitute procedural
requirement would entail.” See Mathews, 424 U.S. at 335. The government has not
14

certainly true that “[t]he government’s interest in preventing crime by arrestees is both
legitimate and compelling.” Salerno, 481 U.S. at 749.
But what is less clear is whether the government has a significant interest in
detaining noncitizens when the risk of danger can be ameliorated by reasonable
conditions of release. The potentially reduced significance of the government’s interest
is even more pronounced here, considering that Cantor has been detained for over
three years. See Velasco Lopez, 978 F.3d at 855 (“[T]he longer detention continues,
the greater the need for the [g]overnment to justify its continuation.”). And even more
basically, if the government’s interests can be met not only by detention but also by
imposing conditions of release, then the balance likely will weigh in favor of release.
The government argues that the Second Circuit’s opinion in Black forecloses this
by “recogniz[ing] that dangerousness is different from risk of flight.” Docket Item 8 at
10. Under the government’s reading of Black, “the ability to pay and alternatives to
detention [are] only to assure the noncitizen’s appearance” and “are relevant ‘only once
the IJ has determined that the noncitizen does not pose a danger to the community.’”
Id. (quoting Black, 103 F.4th at 158-59). Therefore, the government says, “due process
does not require consideration of alternatives to detention when dangerousness is
shown.” Id. at 11.
But that misreads Black, which addressed only risk of flight and not
dangerousness. 5 In Black, the district court had ordered a bond hearing at which the
identified any increased fiscal and administrative burdens that would come from
requiring an IJ to consider alternatives to detention in assessing Cantor’s
dangerousness.
5 Cantor is correct that Black—which involved detention under 8 U.S.C. §

1226(c), not 1226(a)—is not directly binding here. Docket Item 7 at 17 (“Black’s
15

government bore the burden of justifying by clear and convincing evidence that the
petitioner posed a risk of flight or a danger to the community. Black v. Decker, 2020 WL
4260994, at *9 (S.D.N.Y. July 23, 2020). In making that determination, the district court
explicitly ordered that the IJ “consider [the] [p]etitioner’s ability to pay and the availability
of alternative means of assuring his appearance.” Id. (emphasis added). The court
said nothing about whether the IJ also had to consider alternatives to detention in
making a dangerousness determination, which was not at issue there.
On appeal, 6 the government argued that the district court’s order required the IJ
to consider bail and other alternatives to detention that might ensure the petitioner’s
appearance even if his release would pose a danger to the community. See Black, 103
F.4th at 158. The Second Circuit disagreed:

We do not read the district court’s order in that way: it required only that ‘the
IJ . . . consider [the p]etitioner’s ability to pay and the availability of
alternative means of assuring his appearance.’ Black, 2020 WL 4260994,
at *9 (emphasis added). The district court said nothing about considering
ability to pay and alternative means of assuring appearance despite a
finding that the noncitizen is a danger to the community. But to the extent
the district court’s order might be read as the government suggests, we
discussion of the procedures that should be afforded to individuals subject to 8 U.S.C. §
1226(c) detention is not binding on 8 U.S.C. § 1226(a) detention.”). But that does not
mean that its reasoning is irrelevant. Black’s analysis of the petitioners’ due process
challenges was, like this Court’s analysis of Cantor’s petition, conducted under the
Mathews framework. Black, 103 F.4th at 148-49. Indeed, Black found that Velasco
Lopez’s use of the Mathews framework to analyze challenges to detention under 8
U.S.C. § 1226(a) was relevant and persuasive to its analysis under section 1226(c),
even if it was not binding. See Black, 103 F.4th at 149.
6 Black involved two petitioners whose respective cases were consolidated on

appeal. See Black, 103 F.4th at 137. As the Second Circuit noted, one petitioner had
been granted habeas relief, Black, 2020 WL 4260994, at *9-10, while the other
petitioner had been denied relief by the district court, Keisy G.M. v. Decker, 2021 WL
5567670, at *1-2 (S.D.N.Y. Nov. 29, 2021). Black, 103 F.4th at 138.
16

stress that a showing of dangerousness by clear and convincing evidence
would foreclose any possibility of bond. The IJ would then have no reason
to consider financial circumstances or alternatives to detention.
Black, 103 F4th at 158-59 (emphasis and parenthetical in original).
Here, the government emphasizes the words “alternatives to detention,”
reasoning that because this “recognize[s] that dangerousness is different from risk of
flight,” alternatives to detention “[a]re only to assure the noncitizen’s appearance” and
therefore need not be considered once a finding of dangerousness is made. See
Docket Item 8 at 10-11. But because Black’s focus was on bail and other means of
assuring the petitioner’s appearance, 7 its reference to “alternatives to detention” is
limited to that—that is, alternatives to detention that ameliorate the risk of flight. Black
says nothing about whether, in deciding whether a petitioner poses a danger to the
public upon release, an IJ must consider alternatives to detention that might ameliorate
that danger. 8 And for the reasons just explained, there is no conceptual or practical
reason to address conditions that might ameliorate danger when assessing
7 Indeed, the other language in Black cited by the government maintains that

same focus on alternative means to ensure petitioners’ attendance at immigration
proceedings, not alternatives relevant to mitigating dangerousness. See Black, 103
F.4th at 158 (“[A] bond amount would be at issue only once the IJ has determined that
the noncitizen does not pose a danger to the community . . .. At that point, refusing to
consider ability to pay and alternative means of assuring appearance creates a serious
risk that the noncitizen will erroneously be deprived of the right to liberty purely for
financial reasons.” Id. at 158 (emphasis added) (citing Carlson v. Landon, 342 U.S.
524, 539-42 (1952), and Matter of Guerra, 24 I. & N. Dec. 37, 38 (B.I.A. 2006)).
8 In fact, the government’s reading of Black might have the ironic result of

constraining the broad discretion that IJs enjoy under federal regulations. See 8 C.F.R.
§ 1003.19(d) (“The determination of the [IJ] as to custody status or bond may be based
upon any information that is available to the [IJ] or that is presented to him or her by the
alien or [ICE].”) (emphasis added); see also Abdi v. Nielsen, 287 F. Supp. 3d 327, 338
(W.D.N.Y. 2018) (BIA precedent “suggest[s] that IJs have significant discretion to
determine whether release on bond is appropriate.”).
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dangerousness any differently than the risk-of-flight analysis requires for conditions that
might ameliorate that risk.
The government also argues that “[u]nlike the risk of flight, which an ankle
monitor could make futile or else rectify by showing a noncitizen’s location, the risk of
harm to the community cannot be mitigated merely by knowing where [Cantor] is.”
Docket Item 8 at 14. But that simply means that conditions that might ameliorate risk of
flight will be insufficient to ameliorate danger and that there will be fewer instances
when conditions will suffice to mitigate the latter. And that may well be true, but that is
not a reason to analyze the two risks any differently.
There may well be no alternatives to detention that will be sufficient to release
Cantor safely. And it may well be more challenging to come up with conditions that
ameliorate risk of danger in the same way that bail or ankle bracelets ameliorate risk of
flight. But that is no reason to analyze the two risks any differently, and this Court does
not believe that the panel in Black intended to suggest otherwise. This Court therefore
holds that when a petitioner is entitled to a hearing because his detention pending
removal has become unreasonably prolonged, the hearing requires a neutral
decisionmaker to address whether alternatives to detention might ameliorate risk of
danger as well as risk of flight.
D.

Conclusion

In sum, all three Mathews factors weigh in Cantor’s favor. And in light of his
exceptionally prolonged detention, due process demands that his continued detention
be justified not only by a finding that he poses a danger to the community but also by a
finding that the danger cannot be reasonably addressed by alternatives to detention.
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II.

REMEDY
Cantor’s petition requested either his “immediate release or a constitutionally

adequate bond hearing.” Docket Item 1 at ¶ 6. Under the stipulation between the
parties, the government will provide Cantor with an individualized bond hearing before
an IJ at which it bears the burden of establishing, by clear and convincing evidence, that
Cantor poses a risk of flight or danger to the community. Docket Item 5 at ¶ 1. In
determining whether Cantor poses a flight risk, the IJ must consider whether that risk
“may be mitigated by reasonable conditions of supervision or monetary bond.” Id. In
addition, and consistent with this decision and due process, in determining whether
Cantor poses a danger to the community, the IJ also must consider whether that danger
may be mitigated by reasonable alternatives to detention.
To the extent that the petitioner’s request for his immediate release remains at
issue, see Docket Item 1 at 29, this Court declines to grant that remedy in deference to
the legitimate and strong governmental interests described earlier, see supra Section
I.C.
CONCLUSION
For the reasons stated above, Cantor’s petition is granted in part. 9 Within 14
calendar days from the date of this decision and order, the government must release

9 Because this Court finds that due process mandates that Cantor receive an

individualized bond hearing at which the government bears the burden of proving, by
clear and convincing evidence, that he poses a risk of flight or danger to the community,
see supra Section II, it need not reach his claims that his two prior bond hearings
violated 8 U.S.C. § 1226(a) and the Administrative Procedure Act, Docket Item 1 at ¶¶
83-95.
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Cantor unless it demonstrates by clear and convincing evidence before a neutral
decisionmaker that Cantor’s continued detention is necessary to serve a compelling
regulatory purpose, such as minimizing risk of flight or protecting others or the
community. As part of that calculus, the decisionmaker must consider—and must
address in any decision—whether there is clear and convincing evidence that there are
no less-restrictive alternatives to physical detention, including release on conditions,
that would reasonably address the government's interest in detaining Cantor. In other
words, the decisionmaker must find, by clear and convincing evidence, that no condition
or combination of conditions of release can reasonably ensure Cantor’s appearance
and the safety of the community—that is, even with conditions, Cantor presents an
identified and articulable risk of flight or a threat to another person or the community.
Within 30 days of the date of this decision and order, the government shall file an
affidavit certifying compliance with this order. That affidavit should include a copy of the
bond hearing order.

SO ORDERED.
Dated: January 7, 2025
Buffalo, New York

/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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