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Viewing entries tagged
bond
The Ninth Circuit has issued an amended decision in Martinez v. Clark, finding that it has jurisdiction to review the agency’s determination that a non-citizen is a danger to the community under an abuse of discretion standard. The court concluded that the dangerousness determination is a mixed question of fact and law.
The full text of Martinez v. Clark can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/27/21-35023.pdf
The Fourth Circuit has affirmed the denial of habeas relief to a non-citizen subject to on-going withholding-only proceedings, finding that his removal was still reasonably foreseeable, despite the length of his detention. The court also found that due process did not require the immigration court to provide him with another bond hearing.
The full text of Vasquez Castaneda v. Garland can be found here:
The Board of Immigration Appeals (Board) has determined that the agency is not estopped from detaining a non-citizen in immigration custody without bond simply because a magistrate released him on pre-trial bail in a federal criminal proceeding. The Board noted that the criminal proceedings, the government bears the burden of proving a defendant is a flight risk or danger to the community to justify detention without bail, while in the immigration context, the non-citizen bears the burden of proving he is not a flight risk or danger to the community to justify the granting of bond.
The full text of Matter of Panin can be found here:
The Ninth Circuit has determined that a 236(a) bond hearing, which places the burden of proof on the detainee, is constitutionally sufficient, and there is no requirement to provide a subsequent hearing that places the burden of proof on the government.
“Most obviously, after the Supreme Court’s decisions in Jennings and Arteaga-Martinez, it remains undetermined whether the Due Process Clause requires additional bond procedures under any immigration detention statute.” “As our own precedents demonstrate, § 1226(a) stands out from the other immigration detention provisions in key respects. Section 1226(a) and its implementing regulations provide extensive procedural protections that are unavailable under other detention provisions, including several layers of review of the agency’s initial custody determination, an initial bond hearing before a neutral decisionmaker, the opportunity to be represented by counsel and to present evidence, the right to appeal, and the right to seek a new hearing when circumstances materially change.” “Moreover, as we noted above, throughout the course of his detention, Rodriguez Diaz has had the right to seek an additional bond hearing if his circumstances materially change.” “And to the extent that the agency made errors of law in denying Rodriguez Diaz’s requests, these decisions would also be subject to judicial review in habeas.” “In sum, while Rodriguez Diaz’s private interest and the government’s interests are both substantial here, the private interest of a detained alien under § 1226(a) is lower than that of a detained U.S. citizen, and the governmental interests are significantly higher in the immigration detention context.” “For the reasons given, § 1226(a)’s procedures satisfy due process, both facially and as applied to Rodriguez Diaz.”
The court left open the possibility that another detainee might bring a successful as-applied challenge to the procedures in the future.
The full text of Rodriguez Diaz v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/11/21/20-16245.pdf
The Supreme Court has determined that there is no statutory requirement to provide a bond hearing to an individual subject to a reinstated order of removal. The Court left open the possibility that such hearings might be required by the Constitution.
The full text of Johnson v. Arteaga-Martinez can be found here:
The Ninth Circuit has determined that the determination of whether a particular noncitizen poses a danger to the community is a discretionary determination, which a federal court may not review. “What one immigration judge may find indicative of a propensity for danger, another may see as progress toward redemption. This is exactly the type of discretionary judgment that § 1226(e) insulates from judicial review.”
The court further rejected the petitioner’s assertion that due process required the Immigration Judge to consider alternatives to detention before deeming him to be a danger to the community. “Due process does not require immigration courts to consider conditional release when determining whether to continue to detain an alien under § 1226(c) as a danger to the community.”
The full text of Martinez v. Clark can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/15/21-35023.pdf
The Fourth Circuit has reversed a class-wide injunction requiring DHS to bear the burden of proof on flight risk and danger to the community in bond proceedings. The court concluded that “1252(f)(1) expressly precludes ‘jurisdiction or authority to enjoin or restrain’ provisions of the immigration laws, including § 1226(a), on a class-wide basis.”
With respect to the claim of an individual class member that DHS should bear the burden of proof in bond proceedings, the Court concluded that noncitizens “are due less process when facing removal hearings than an ordinary citizen would have.” The court concluded that the procedures employed in bond hearings that place the burden of proof on the non-citizen comply with the requirements of due process. The court acknowledged that this creates a circuit split with the First Circuit.
Finally, the court also rejected the argument that due process requires an immigration judge to consider a non-citizen’s ability to pay when setting a bond amount. The court acknowledged that this creates a circuit split with the Ninth Circuit.
The full text of Miranda v. Garland can be found here:
The First Circuit has determined that not all persons detained under section 1226(c) have a constitutional right to a hearing concerning the reasonableness of their continued detention after they have been detained longer than six months, find that such analyses must be conducted on a case-by-case basis.
The full text of Reid v. Donelan can be found here:
The First Circuit has determined that in a 236(a) bond hearing, the Department of Homeland Security bears the burden of proving the detainee is a danger to the community and a flight risk. With respect to danger, the burden is clear and convincing evidence. For flight risk, the burden is preponderance of the evidence. The court determined that this burden allocation is required by the Due Process Clause of the Fifth Amendment.
The full text of Hernandez-Lara v. Lyons can be found here:
The Supreme Court has determined that individuals detained following the reinstatement of a prior removal order are not detained under 8 USC 1226, and therefore, are not entitled to bond hearings under that section.
The full text of Johnson v. Guzman Chavez can be found here:
The Third Circuit has reaffirmed that a mandatory detainee under 236(c) can bring an as-applied constitutional challenge to prolonged detention. A district court hearing a habeas claim in these circumstances should consider four factors: 1) the length of detention; 2) whether detention is likely to continue; 3) the reasons for delay; and 4) whether the conditions of confinement are meaningfully different from criminal detention. Once a bond hearing is ordered in a prolonged detention setting, the government bears the burden of proving by clear and convincing evidence that the detainee is a flight risk or a danger to the community.
The full text of German Santos v. Warden Pike County Correctional Facility can be found here:
The Ninth Circuit has determined that its prior decision in Diouf II survives the Supreme Court’s decision in Jennings v. Rodriguez. The class of petitioners at issue are individuals with reinstated removal orders. final orders of removal that have not been executed, and who have review of denied motions to reopen pending before the federal appellate court, and who have been detained for at least six months without a bond hearing. The court found that Government must provide class members with an individualized bond hearing after six months of detention when a class member’s release or removal is not imminent, and that the Department of Homeland Security must bear the burden of proving that continued detention is warranted by clear and convincing evidence. The court held that the class members are not entitled to subsequent custody reviews every six months thereafter.
The decision in Flores Tejada v. Godfrey can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/04/07/18-35460.pdf
The decision in Aleman Gonzalez v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/04/07/18-16465.pdf
In an appeal of a bond decision, the BIA has determined that an asylum seeker who has no family, employment, or community ties and no probable path to obtain lawful status is properly considered a flight risk.
The full text of Matter of R-A-V-P- can be found here:
https://www.justice.gov/eoir/page/file/1258971/download
The Ninth Circuit has determined that asylum seekers who enter without inspection and pass their credible fear interviews are constitutionally entitled to a bond hearing, despite the Attorney General’s decision in Matter of M-S-. The court affirmed the District Court’s injunctive relief requiring bond hearings, noting the harm caused the class members due to “substandard physical conditions [in detention centers], low standards of medical care, lack of access to attorneys and evidence as Plaintiffs prepare their cases, separation from their families, and retraumatization of a population already found to have legitimate circumstances of victimization.”
The court remanded for further factfinding by the District Court to support its order requiring a bond hearing to take place within 7 days of the asylum seeker requesting the hearing, as well as other procedural protections related to burden of proof and recording of the hearings.
The full text of Padilla v. ICE can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/03/27/19-35565.pdf
The Fourth Circuit has determined that individuals who are subject to a reinstated removal order, and who are pursuing withholding of removal, are eligible for bond hearings because the removal order is pending until the withholding only proceedings are complete.
The full text of Guzman Chavez, et. al v. Hott can be found here:
A District Court has disagreed with the Attorney General’s decision in Matter of M-S-, which found all individuals who entered the United States without inspection and subsequently were found to have a credible fear of persecution or torture to be ineligible for bond. The court made the following orders:
1. Conduct bond hearings within seven days of a bond hearing request by a class member, and release any class member whose detention time exceeds that limit;
2. Place the burden of proof on Defendant Department of Homeland Security in those bond hearings to demonstrate why the class member should not be released on bond, parole, or other conditions;
3. Record the bond hearing and produce the recording or verbatim transcript of the hearing upon appeal; and
4. Produce a written decision with particularized determinations of individualized findings at the conclusion of the bond hearing
The order will go into effect on 7/16/19.
The full text of Padilla v. ICE can be found here:
https://www.courthousenews.com/wp-content/uploads/2019/07/bond-asylum.pdf
The Attorney General has determined that all individuals placed in expedited removal proceedings are ineligible for bond, even if they subsequently receive a positive credible determination, overruling Matter of X-K-. The Attorney General delayed implementation of the decision for 90 days to give DHS the opportunity to adjust its operational capacity accordingly.
This decision will effectively result in the widespread detention of asylum seekers who ICE refuses to parole.
The full decision of Matter of M-S- can be found here:
https://www.justice.gov/eoir/file/1154747/download
The District Court for the Western District of Washington has ordered that the Department of Justice provide all detainees who have received a positive credible fear determination with bond hearings within 7 days of a request made by such a detainee. If detention exceeds that time limit, the detainee must be released. The Department of Homeland Security will have the burden to prove that the asylum seeker is a danger to the community or a flight risk in these bond proceedings. The order requires the Department of Justice to implement the injunction within 30 days.
Importantly, this order includes asylum seekers who have been classified as arriving aliens.
The full text of Padilla v. ICE can be found here:
https://www.nwirp.org/wp-content/uploads/2019/04/110-order-granting-PI.pdf
The Third Circuit has held that a reinstated order of removal against a person who has initiated withholding-only proceedings is administratively final. Therefore, this person’s detention is governed by 8 USC § 1231(a). The court further determined that it “may be the case that the Due Process Clause prohibits prolonged detention under § 1231(a)(6) without a bond hearing.” However, the court ultimately stated that “[i]n order to avoid determining whether Guerrero Sanchez’s detention violates the Due Process Clause, we adopt the Ninth Circuit’s limiting construction of § 1231(a)(6) that an alien facing prolonged detention under that provision is entitled to a bond hearing before an immigration judge and is entitled to be released from detention unless the government establishes that the alien poses a risk of flight or a danger to the community. Critically, our holding today necessarily applies to all aliens detained under § 1231(a)(6), not just those, like Guerrero-Sanchez, who have reinstated removal orders under § 1231(a)(5) and are pursuing withholding-only relief.” The court held that the Department of Homeland Security would have the burden in these bond proceedings of demonstrating by clear and convincing that the non-citizen is a flight risk or a danger to the community. Finally, the court determined that detention becomes prolonged at the six-month mark, triggering the need for this bond hearing.
The full text of Guerrero-Sanchez v. Warden York County Prison can be found here:
The Ninth Circuit has remanded its seminal prolonged detention case, Rodriguez v. Marin, to the District Court for further proceedings. The case was remanded to the Ninth Circuit from the Supreme Court, who reversed the Ninth Circuit’s statutory construction, but who left open the possibility that the Constitution compels regular bond hearing for immigration detainees.
On remand, the District Court must address:: (1) whether the class certified by the district court should remain certified for consideration of the constitutional issue and available class remedies; (2) whether classwide injunctive relief is available under 8 U.S.C. § 1252(f)(1); (3) whether a Rule 23(b)(2) class action (a) remains the appropriate vehicle in light of Walmart Stores, Inc. v. Duke, 564 U.S. 338 (2011), and (b) whether such a class action is appropriate for resolving Petitioners’ due process claims; (4) whether composition of the previously identified subclasses should be reconsidered; (5) the minimum requirements of due process to be accorded to all claimants that will ensure a meaningful time and manner of opportunity to be heard; and (6) a reassessment and reconsideration of both the clear and convincing evidence standard and the six-month bond hearing requirement.
The full text of Rodriguez v. Marin can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/19/13-56706.pdf
