Hernandez Lara v. Lyons

10 F.4th 19

• Court: Court of Appeals for the First Circuit
• Decided: August 19, 2021
• Docket: 19-2019
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 19-2019

ANA RUTH HERNANDEZ-LARA,

Petitioner, Appellee,

v.

TODD M. LYONS, Immigration and Customs Enforcement, Enforcement and Removal Operations, Acting Field Office Director,

Respondent, Appellant,

CHRISTOPHER BRACKETT, Superintendent, Strafford County Department of Corrections,

Respondent.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Landya B. McCafferty, U.S. District Judge]

Before

Lynch, Lipez, and Kayatta, Circuit Judges.

Catherine M. Reno, Trial Attorney, with whom Ethan P. Davis, Acting Assistant Attorney General, Civil Division, Scott G. Stewart, Deputy Assistant Attorney General, William C. Peachey, Director, Office of Immigration Litigation, District Court Section, Carlton F. Sheffield, Senior Litigation Counsel, and Ari Nazarov, Trial Attorney, were on brief, for appellant. Bryanna K. Devonshire, with whom Courtney H.G. Herz, Sheehan Phinney Bass & Green, PA, Gilles Bissonnette, Henry Klementowicz, SangYeob Kim, and American Civil Liberties Union of New Hampshire, were on brief, for appellee.

August 19, 2021 KAYATTA, Circuit Judge. Ana Ruth Hernandez-Lara

("Hernandez"), a thirty-four-year-old native and citizen of El

Salvador, entered the United States in 2013 without being admitted

or paroled. An immigration officer arrested Hernandez in September

2018, and the government detained her at the Strafford County

Department of Corrections in Dover, New Hampshire ("Strafford

County Jail") pending a determination of her removability.

Approximately one month later, Hernandez was denied bond at a

hearing before an immigration judge (IJ) in which the burden was

placed on Hernandez to prove that she was neither a danger to the

community nor a flight risk.

Hernandez subsequently filed a petition for a writ of

habeas corpus in the United States District Court for the District

of New Hampshire, contending that the Due Process clause of the

Fifth Amendment entitled her to a bond hearing at which the

government, not Hernandez, must bear the burden of proving danger

or flight risk by clear and convincing evidence. The district

court agreed and ordered the IJ to conduct a second bond hearing

at which the government bore the burden of proving by clear and

convincing evidence that Hernandez was either a danger or a flight

risk. That shift in the burden proved pivotal, as the IJ released

Hernandez on bond following her second hearing, after ten months

of detention. The government now asks us to reverse the judgment

- 3 - of the district court, arguing that the procedures employed at

Hernandez's original bond hearing comported with due process and,

consequently, that the district court's order shifting the burden

of proof was error. Although we agree that the government need

not prove a detainee's flight risk by clear and convincing

evidence, we otherwise affirm the order of the district court.

Our reasoning follows.

I.

The parties do not dispute the relevant background

facts. Hernandez was born in Usulutan, El Salvador, in 1986.

Before coming to the United States in 2013, her life was marred by

abusive domestic relations and gang violence. Hernandez's

stepfather raped her when she was twelve years old and beat her

mother throughout Hernandez's childhood. History repeated when

Hernandez's stepfather's son raped Hernandez's then-eight-year-

old daughter. Although Hernandez escaped her stepfather by living

with her brother, she was unable to escape danger. Hernandez's

brother was a member of Mara 18 (the 18th Street Gang), and after

he was imprisoned for gang-related crimes, the gang began

threatening Hernandez in an effort to force her to assume her

brother's former gang responsibilities. Hernandez resisted those

threats until late August 2013, when the gang told her aunts they

intended to kill her and "throw [her] head in the river."

- 4 - Hernandez immediately fled to the United States and ultimately

established residency in Portland, Maine, where she worked at a

recycling plant and was engaged to be married.

Hernandez was taken into custody by an immigration

officer on September 20, 2018, and detained pursuant to 8 U.S.C.

§ 1226(a), which provides for discretionary detention of

noncitizens during the pendency of removal proceedings.1 On

October 18, 2018, the IJ held a bond hearing at which, consistent

with immigration regulations, the burden of proof was placed on

Hernandez to prove she was neither a danger to the community nor

a flight risk. See Matter of Guerra, 24 I. & N. Dec. 37, 40

(B.I.A. 2006). Hernandez presented evidence that she had no

criminal record or history of arrest in either El Salvador or the

United States. She also offered evidence of her good moral

character and her community and family ties to Portland. Both her

parents and two of her three siblings reside in the United States.

The government's response provided an apt demonstration

of how the burden of proof can affect immigration bond hearings.

Government counsel produced a so-called "Red Notice" published by

1 8 U.S.C. § 1226(a) provides that "[o]n a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision, the Attorney General . . . (1) may continue to detain the arrested alien; and (2) may release the alien on . . . bond of at least $1,500 . . . or conditional parole."

- 5 - El Salvador through the International Criminal Police Organization

("INTERPOL"). The notice identifies Hernandez, describes the

activities of Street Gang 18 (much as Hernandez described them),

and simply states that Hernandez is subject to an arrest warrant

in El Salvador under El Salvadoran "Article 13 of the Special Law

Against Acts of Terrorism."

An INTERPOL Red Notice is "a request to law enforcement

worldwide to locate and provisionally arrest a person pending

extradition, surrender, or similar legal action." Red Notices,

INTERPOL, https://www.interpol.int/en/How-we-work/Notices/Red-

Notices (last visited August 18, 2021). In the United States, an

INTERPOL Red Notice alone is not a sufficient basis to arrest,

much less detain or extradite, the "subject" of the notice "because

it does not meet the requirements for arrest under the 4th

Amendment to the Constitution." About INTERPOL Washington:

Frequently Asked Questions, U.S. Dep't of Just.,

https://www.justice.gov/interpol-washington/frequently-asked-

questions (last visited August 18, 2021).

Hernandez denied belonging to the organization. Her

counsel explained that her brother had belonged to the gang and

pointed out that the Red Notice failed to specify any criminal or

dangerous act that Hernandez allegedly committed.

- 6 - The IJ indicated that it was not clear whether

Hernandez's alleged involvement in the organization was due to "an

inter-rival thing or [if] she was an innocent member or somehow

wrongly identified." Nonetheless, he found that there was not

"sufficient evidence explaining why these allegations are being

brought against her." Stating that "it is [Hernandez's] burden of

proof to show by clear and convincing evidence she is not a

danger," the IJ found, "based on this Red Notice, [that] she has

failed to meet that burden." Consequently, he denied her request

for bond. Hernandez remained detained as she pursued claims for

asylum, withholding of removal, and relief under the Convention

Against Torture ("CAT").

On April 16, 2019, Hernandez filed a petition for a writ

of habeas corpus in the United States District Court for the

District of New Hampshire. In her petition, Hernandez claimed

that due process required the government to bear the burden of

proving, by clear and convincing evidence, that she was either

dangerous or a flight risk, and therefore that her initial bond

hearing was constitutionally inadequate. Hernandez also claimed

that because of her "prolonged detention" of over six months, due

process required an additional bond hearing at which the government

would bear the burden of proof. Hernandez sought as relief either

her immediate release or a new bond hearing at which the government

- 7 - would bear the burden of proving by clear and convincing evidence

that she was dangerous or a flight risk.

On July 25, 2019, the district court granted Hernandez's

habeas petition and ordered the IJ to conduct another bond hearing

at which the government would "bear the burden of justifying

Hernandez's detention by clear and convincing evidence."

Hernandez-Lara v. Immigr. & Customs Enf't, Acting Dir., No. 19-

cv-394-LM, 2019 WL 3340697, at *7 (D.N.H. July 25, 2019).2 Less

than a week later, the same IJ who conducted Hernandez's first

bond hearing held a second hearing in accordance with the district

court's order. The government relied once again on the Red Notice

and additionally argued that Hernandez was a flight risk because

her asylum claim had been denied by both the IJ and the Board of

Immigration Appeals (BIA), though it was pending before this court

at the time. Hernandez countered that the Red Notice was

defective, as it contained no factual allegations that Hernandez

committed any crime or was part of any gang activity, and that she

has no history of criminal conviction. As to flight risk,

Hernandez argued she had a meaningful chance of relief in her

appeal before us and that she had family ties, employment, and a

residence in Maine to which she would return.

2The district court did not reach Hernandez's prolonged detention argument, id. at *7 n.4, which we likewise do not address.

- 8 - The IJ granted Hernandez's request for bond, setting it

at $7,500. In explaining his decision, the IJ stressed the shift

of burden:

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

Given her community ties, fixed address, and work history, the IJ

also found that Hernandez was not a flight risk. As a result, the

IJ released Hernandez after she spent over ten months in detention.

As noted, the IJ had previously denied Hernandez's

asylum, withholding, and CAT claims on the merits, finding her

credible but also concluding that "she failed to demonstrate that

her familial connection to her brother was 'one central reason'

that the gang singled her out" and that "the police would have

protected [her] from the gang if she had reported the threats

because the police had protected her from her ex-partner in the

past." Hernandez Lara v. Barr, 962 F.3d 45, 52 (1st Cir. 2020).

After the BIA affirmed that ruling, Hernandez appealed. Nearly a

year after Hernandez was released from custody, we vacated the

BIA's decision and remanded for further proceedings, which are

ongoing. See id. In the meantime, the government filed this

- 9 - appeal from the district court's grant of Hernandez's habeas

petition.

II.

"It is well established that '[o]ur review of a district

court's grant or denial of habeas is de novo.'" Sanchez v. Roden,

753 F.3d 279, 293 (1st Cir. 2014) (alteration in original) (quoting

Healy v. Spencer, 453 F.3d 21, 25 (1st Cir. 2006)). Before

undertaking that review, we first survey the statutory and

regulatory framework challenged by Hernandez.

The Immigration and Nationality Act ("INA") provides

that the government must detain for the duration of removal

proceedings most noncitizens who have committed certain types of

criminal offenses. 8 U.S.C. § 1226(c). See generally Demore v.

Kim, 538 U.S. 510 (2003). The government does not claim that

Hernandez has committed such an offense. In her case,

section 1226(a) -- the discretionary detention provision --

controls. Under that section, the government "may release" a

detained noncitizen on "bond . . . or conditional parole." Id.

§ 1226(a).

An Immigration and Customs Enforcement ("ICE") officer

makes the initial detention determination for noncitizens subject

to detention under section 1226(a). See 8 C.F.R. § 236.1(c)(8)

(2020). If the officer opts for continued detention, the

- 10 - noncitizen can seek review of that decision at a bond hearing

before an IJ. Id. § 236.1(d)(1). An IJ's decision to continue

detaining a noncitizen may be further appealed to the BIA. Id.

§ 236.1(d)(3).

Section 1226(a) is silent as to what burden of proof

applies in bond hearings and who bears that burden. See 8 U.S.C.

§ 1226(a). For many decades, the BIA interpreted that silence as

creating a presumption in favor of liberty pending removal

proceedings. See Matter of Patel, 15 I. & N. Dec. 666, 666 (B.I.A.

1976) ("An alien generally is not and should not be detained or

required to post bond except on a finding that he is a threat to

the national security or that he is a poor bail risk." (citations

omitted)).

In 1996 Congress enacted the Illegal Immigration Reform

and Immigrant Responsibility Act ("IIRIRA"). Omnibus Consolidated

Appropriations Act, Pub. L. No. 104-208, 110 Stat. 3009 (1996).

IIRIRA adopted what is now the current version of the mandatory

detention requirements of section 1226(c). IIRIRA did not alter

the discretionary regime of section 1226(a) except by increasing

the minimum bond amount from $500 to $1,500.

Nevertheless, following the enactment of IIRIRA, the

Immigration and Naturalization Service (INS) adopted new

regulations establishing a presumption of detention in the initial

- 11 - custody determination by the arresting officer. See 8 C.F.R.

§ 236.1(c)(2)-(8). Under those regulations, a noncitizen seeking

release bears the burden of "demonstrat[ing] to the satisfaction

of the officer that such release would not pose a danger to

property or persons, and that the alien is likely to appear for

any future proceeding." Id. § 236.1(c)(8). Although that

regulation applied only to the custody determination by the

arresting officer, the BIA soon adopted that standard for

section 1226(a) bond hearings before an IJ, reversing its prior

rule. See Matter of Adeniji, 22 I. & N. Dec. 1102, 1112 (B.I.A.

1999); Matter of Guerra, 24 I.& N. Dec. at 38.

Accordingly, under current BIA precedent, a noncitizen

detained under section 1226(a) must demonstrate "to the

satisfaction of the Immigration Judge that he or she merits release

on bond," Matter of Guerra, 24 I. & N. Dec. at 40, "even though

section [1226(a)] does not explicitly contain such a requirement."

Matter of Adeniji, 22 I. & N. Dec. at 1113. To do so, the

noncitizen must prove that he or she is neither a danger to the

community nor a flight risk. See, e.g., Matter of R-A-V-P-, 27

I. & N. Dec. 803, 804 (B.I.A. 2020).3 In contrast, the government

3 In deciding whether the noncitizen has met his or her burden, the IJ may consider "any or all of the following: (1) whether the alien has a fixed address in the United States; (2) the alien's length of residence in the United States; (3) the

- 12 - "need not show anything to justify incarceration for the pendency

of removal proceedings, no matter the length of those proceedings."

Velasco Lopez v. Decker, 978 F.3d 842, 849 (2d Cir. 2020).

III.

We turn now to the merits of this appeal. In Jennings

v. Rodriguez, the Supreme Court held that, as a matter of statutory

interpretation, section 1226(a) does not 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." 138 S. Ct. 830, 847-48 (2018). The Court

left for another day, however, the constitutional question now

before us: Whether the Due Process clause of the Fifth Amendment

entitles a noncitizen detained pursuant to section 1226(a) to a

bond hearing at which the government bears the burden of proving

by clear and convincing evidence that the noncitizen is dangerous

or a flight risk. See id. at 851.

alien's family ties in the United States, and whether they may entitle the alien to reside permanently in the United States in the future; (4) the alien's employment history; (5) the alien's record of appearance in court; (6) the alien's criminal record, including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses; (7) the alien's history of immigration violations; (8) any attempts by the alien to flee prosecution or otherwise escape from authorities; and (9) the alien's manner of entry to the United States." Matter of Guerra, 24 I. & N. Dec. at 40.

- 13 - Our inquiry is guided by the three-part balancing test

articulated in Mathews v. Eldridge. See 424 U.S. 319, 335 (1976);

see also Velasco Lopez, 978 F.3d at 851 (analyzing procedural due

process challenge to prolonged detention of noncitizen held

pursuant to section 1226(a) using Mathews test); Addington v.

Texas, 441 U.S. 418, 425 (1979) (analyzing "what standard should

govern in a civil commitment proceeding" by "assess[ing] both the

extent of the individual's interest in not being involuntarily

confined indefinitely and the state's interest in committing the

emotionally disturbed under a particular standard of proof"

(citing Mathews, 424 U.S. at 335)). The Mathews factors

are: (1) "the private interest that will be affected by the

official action"; (2) "the risk of an erroneous deprivation of

such interest through the procedures used, and the probable value,

if any, of additional or substitute procedural safeguards"; and

(3) "the Government's interest, including the function involved

and the fiscal and administrative burdens that the additional or

substitute procedural requirement would entail." 424 U.S. at 335.

We address each factor in turn, focusing first on the

allocation of the burden of proof. We then address separately the

government's contention that, notwithstanding any analysis of the

Mathews factors, precedent calls for us to rule in the government's

favor. Finally, we address the extent of the burden to be borne.

- 14 - A.

"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 v. Davis, 533 U.S. 678, 695 (2001) (citing Foucha v.

Louisiana, 504 U.S. 71, 80 (1992)). The Supreme Court has

repeatedly affirmed that "[i]n our society liberty is the norm,

and detention prior to trial or without trial is the carefully

limited exception." United States v. Salerno, 481 U.S. 739, 755

(1987); see also Foucha, 504 U.S. at 80 ("We have always been

careful not to minimize the importance and fundamental nature of

the individuals' right to liberty."). For this reason, "civil

commitment for any purpose constitutes a significant deprivation

of liberty that requires due process protections." Addington, 441

U.S. at 425 (emphasis added).

Hernandez was incarcerated alongside criminal inmates at

the Strafford County Jail for over ten months. See Velasco Lopez,

978 F.3d at 850 ("[Petitioner] was not 'detained'; he was, in fact,

incarcerated under conditions indistinguishable from those imposed

on criminal defendants sent to prison following convictions for

violent felonies and other serious crimes.") During that time,

she was separated from her fiancé and unable to maintain her

employment. But for the relief ordered in this action, she would

- 15 - still be incarcerated more than two years after the jailor first

locked the door behind her. There is no question that Hernandez

suffered a substantial deprivation of liberty.

In an attempt to downplay that deprivation, the

government notes that Congress may make rules for noncitizens "that

would be unacceptable if applied to citizens," Demore, 538 U.S. at

522, and that "detention during deportation proceedings [is] a

constitutionally valid aspect of the deportation process," id. at

523. But the same could be said for criminal proceedings. And in

either case the fact that some detention is permissible does not

change the fact that a detainee suffers significant liberty

deprivations. Moreover, the government's exercise of its power to

detain immigrants pending removal "is subject to important

constitutional limitations." Zadvydas, 533 U.S. at 695. That is

because due process "applies to all 'persons' within the United

States, including aliens, whether their presence here is lawful,

unlawful, temporary, or permanent." Id. at 693; see also Mathews

v. Davis, 426 U.S. 67, 77 (1976) (explaining that due process

"protects every [noncitizen] from deprivation of life, liberty, or

property without due process of law. Even one whose presence in

this country is unlawful, involuntary, or transitory is entitled

to that constitutional protection").

- 16 - The government also argues that Hernandez's liberty

interest should be discounted because she is "not simply asserting

a right to be at liberty, but rather, a right to be at liberty in

the United States, where she has never held lawful status"

(emphasis in original). But as the Supreme Court explained in

response to this same type of argument in Zadvydas, "the

choice . . . is not between imprisonment and the alien 'living at

large'" in this country but "between imprisonment and supervision

under release conditions that may not be violated." 533 U.S. at

696; see 8 U.S.C. § 1226(a)(2)(A) (providing that the Attorney

General may release a noncitizen on "bond of at least $1,500 with

security approved by, and containing conditions prescribed by, the

Attorney General" (emphasis added)).

The government next contends that "individuals detained

under section 1226(a) can unilaterally decide to end their

detention at any time by simply conceding to removal and being

released into their home country." For that reason, the government

asserts, Hernandez's liberty interest is less than that of the

detainees in Addington and Foucha, who faced indefinite

confinement and could only end their detention by "meeting a

disputed burden of proof."

This argument is a bit like telling detainees that they

can help themselves by jumping from the frying pan into the fire.

- 17 - Deportation is a "'drastic measure,' often amounting to lifelong

'banishment or exile.'" Sessions v. Dimaya, 138 S. Ct. 1204, 1213

(2018) (quoting Jordan v. De George, 341 U.S. 223, 231 (1951));

see id. ("[D]eportation is 'a particularly severe penalty,' which

may be of greater concern to a convicted alien than 'any potential

jail sentence.' (quoting Jae Lee v. United States, 137 S. Ct. 1958,

1968 (2017))); Bridges v. Wixon, 326 U.S. 135, 147 (1945)

("[D]eportation may result in the loss 'of all that makes life

worth living.'" (quoting Ng Fung Ho v. White, 259 U.S. 276, 284

(1922))). The consequences of deportation are potentially most

severe for meritorious asylum seekers, for whom one might fairly

say that the escape from detention offered by the government could

be death. Accordingly, like the Ninth Circuit, "[w]e are not

persuaded that a lower standard of proof is justified by putting

people . . . to the choice of remaining in detention, potentially

for years, or leaving the country and abandoning their challenges

to removability even though they may have been improperly deemed

removable." Singh v. Holder, 638 F.3d 1196, 1204 (9th Cir. 2011).

We recognize that removal proceedings have an end point

and that the liberty interest of a noncitizen detained under

section 1226(a) may therefore be slightly less weighty than that

of individuals facing indefinite and prolonged detention. But

only slightly less: The exact length of detention under

- 18 - section 1226(a) is impossible to predict and can be quite lengthy,

as Hernandez's case illustrates well. The ten months Hernandez

was incarcerated, not to mention the two-plus years, and counting,

during which Hernandez would have been detained but for the relief

ordered by the district court, significantly exceeds the "very

limited time of the detention at stake" in Demore, which was found

to "last[] roughly a month and a half in the vast majority of

cases . . . and about five months in the minority of cases in which

the [non-citizen] chooses to appeal." 538 U.S. at 530; see id. at

513, 526, 529 n.12 (emphasizing the "brief" and " very limited"

period of detention). Moreover, "[d]etention under § 1226(a) is

frequently prolonged because it continues until all proceedings

and appeals are concluded . . . even where an individual has

prevailed and the Government appeals." Velasco Lopez, 978 F.3d at

852. Unsurprisingly, Hernandez is far from an outlier. See

Pereira Brito v. Barr, 415 F. Supp. 3d 258, 264-65 (finding that

between November 1, 2018 and May 7, 2019, among section 1226(a)

detainees subject to the jurisdiction of the Boston and Hartford

Immigration Courts, one in four was incarcerated for two years or

longer).4

4Given our holdings, infra, we need not and do not reach Hernandez's alternative argument that once her detention exceeded six months she became entitled to a new bond hearing at which the government bears the burden of proof. Nonetheless, we find the

- 19 - Accordingly, we find that the first Mathews factor (the

private interest at stake) weighs heavily in Hernandez's favor.

B.

For several reasons, the second Mathews factor -- "the

risk of an erroneous deprivation of such interest through the

procedures used, and the probable value, if any, of additional or

substitute procedural safeguards" -- likewise weighs heavily in

Hernandez's favor. 424 U.S. at 335.

First, noncitizens have no right to be provided with

counsel in immigration proceedings and very often cannot obtain

counsel on their own, particularly if they are detained. See 8

U.S.C. § 1362; Ingrid V. Eagly & Steven Shafer, A National Study

of Access to Counsel in Immigration Court, 164 U. Pa. L. Rev. 1,

16, 32 (2015) (analyzing over 1.2 million deportation cases decided

between 2007 and 2012 and finding that 37% of noncitizens, and

only 14% of detained noncitizens, were represented by counsel);

Emily Ryo, Detained: A Study of Immigration Bond Hearings, 50 Law

& Soc'y Rev. 117, 119 (2016) (finding that "the odds of being

granted bond are more than 3.5 times higher for detainees

represented by attorneys than those who appeared pro se").

potential length of detention under section 1226(a) relevant to the weight of the liberty interest at stake.

- 20 - Second, detained individuals will likely experience

difficulty in gathering evidence on their own behalf. See

Moncrieffe v. Holder, 569 U.S. 184, 201 (2013) (noting detained

noncitizens "have little ability to collect evidence"); Hernandez

Lara, 962 F.3d at 55 ("Detainees' access to phone calls and visits

is generally limited . . . ."); Velasco Lopez, 978 F.3d at 852-53

(government refused to produce detained noncitizen's DACA records

or bring him to a criminal hearing so charges against him could be

dismissed).

Third, noncitizens subject to immigration detention

often lack full proficiency in English. See, e.g., Hernandez Lara,

962 F.3d at 55 (noting that Hernandez "does not speak, read, or

write English").

Fourth, immigration law and procedures and the

particular preferences of individual IJs are likely much better

known to government representatives than to detainees. Cf.

Santosky v. Kramer, 455 U.S. 745, 763 (1982) (noting heightened

risk of error in parental rights termination proceedings exists in

part because "[t]he State's attorney usually will be an expert on

the issues contested and the procedures employed at the factfinding

hearing").

Finally, proving a negative (especially a lack of

danger) can often be more difficult than proving a cause for

- 21 - concern. See Elkins v. United States, 364 U.S. 206, 218 (1960)

("[A]s a practical matter it is never easy to prove a negative.").

For all of these reasons, a detainee often starts out behind the

eight ball in a bond proceeding, and the opportunities for

prejudicial error abound.

This very case evidences how the allocation of the burden

of proof can affect the likelihood of such error. With a record

of employment, family relations, a settled place in the community,

and no arrests, Hernandez would seem to have been a good candidate

for conditional release on bail. Indeed, no party claims that she

has absconded or committed any crime during the year and a half

that she has been out on bail. Yet as the IJ's rulings make clear,

the placement of the burden of proof on Hernandez decisively

exploited her inability to rebut the Red Notice, even though it

did not specify a single act of criminal or dangerous conduct.

As the Supreme Court has observed, a noncitizen's

"removable status itself . . . bears no relation to a detainee's

dangerousness." Zadvydas, 533 U.S. at 691-92. Thus, as a

practical matter, adjudication of dangerousness will naturally

tend to begin with the government offering a reason to find a

particular person dangerous, with that person then addressing the

proffered reason. And that reason will in most cases be based on

law enforcement records to which the government will have greater

- 22 - access. See Velasco Lopez, 978 F.3d at 853 (explaining that the

government has access to "numerous databases[,] . . . to

information collected by DHS, DOJ, and the FBI, [and to]

information in the hands of state and local authorities," in

addition to having "broad regulatory authority" to obtain

information it does not have readily available). Here, for

example, it was the government that had access to the Red Notice.

For all these reasons, the government is generally far more able

to meet the burden of proof on the question of danger than a

detained noncitizen like Hernandez.

As the government argues, detained noncitizens may

certainly have a better grasp of some information relevant to

flight risk -- such as family ties, length of time in the United

States, or record of employment. Nevertheless, they also face

significant barriers to accessing such evidence in the wake of

their seizure and initial detention. Moreover, none of this is to

say that an IJ cannot draw a negative inference from the fact that

a detainee offers no evidence on her behalf. Rather, it is to say

that the odds of error in the weighing of such evidence (or its

absence) are likely reduced by placing the burden on the

government, as in virtually all other instances of proposed lengthy

detention.

- 23 - The government's response to all of this is to argue

that for two reasons the existing framework provides procedural

protections that "exceed the constitutional minimum." First, the

government points out that the existing procedures "permit an

immigration judge to consider a wide range of factors, and the

alien to present any evidence that may bear on these factors."

But as Hernandez's experience shows, those protections do little

to reduce the risk of error caused by the regulations' burden

allocation. Second, the government notes that detention

determinations are subject to "three levels of independent

review," as the decision is made first by a DHS officer, with

review by an IJ and the option of appeal to the BIA. But because

the burden is always on the noncitizen, the availability of review

does little to change the risk of error inherent in the current

burden allocation. Loaded dice rolled three times are still loaded

dice.5

5 The government also suggests in a related case that because section 1226(a) allows detention of any noncitizen pending removal proceedings, the "only true sense" in which a noncitizen may be "erroneously deprived" of liberty under section 1226(a) is "if that individual should not be in removal proceedings at all." But even under the agency's current regulations, there is no suggestion that the government could detain a noncitizen who has shown he is not a danger or flight risk. More fundamentally, any detention must "bear[] [a] reasonable relation to [its] purpose," Zadvydas, 533 U.S. at 690, and other than guarding against danger or flight risk, the government offers no conceivable purpose served by detention.

- 24 - C.

We turn to the final Mathews factor -- "the Government's

interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute

procedural requirement would entail" -- which ultimately entails

an assessment of the "public interest." 424 U.S. at 335, 347.

The government's proffered interest is the "public interest in

prompt execution of removal orders" and the "importance of

immigration detention to effectuate immigration proceedings." In

support of this interest, the government points to legislative

history stating that section 1226(a) was enacted based on concern

that "[a] chief reason why many deportable aliens are not removed

from the United States is the inability of [immigration officials]

to detain such aliens through the course of their deportation

proceedings." H.R. Rep. 104-469, pt. 1, at 123 (1996). Of course,

Congress's answer was to focus on certain criminal noncitizens,

not to alter in any way the then-prevailing burden allocation in

section 1226(a) proceedings.

The prompt execution of removal orders is a legitimate

governmental interest, see Nken v. Holder, 556 U.S. 418, 436

(2009), which detention may facilitate, see Aguilar v. U.S. Immigr.

& Customs Enf't, 510 F.3d 1, 22 (1st Cir. 2007) (recognizing "the

government's legitimate interest in effectuating detentions

- 25 - pending the removal of persons illegally in the country"). In

considering that interest, we must "weigh heavily" the fact that

"control over matters of immigration is a sovereign prerogative,

largely within the control of the executive and the legislature."

Landon v. Plasencia, 459 U.S. 21, 34 (1982). What is at stake,

however, is not the power of the government to detain noncitizens

who may cause harm or flee during removal proceedings, but rather

who should bear the burden of proving noncitizens pose a danger or

a flight risk.

The government fails to explain why its proffered

interest in securing appearance at removal proceedings and for

deportation holds sway where a noncitizen is not a flight risk.

See Hernandez v. Sessions, 872 F.3d 976, 990 (9th Cir. 2017) ("The

government has legitimate interests in protecting the public and

in ensuring that noncitizens in removal proceedings appear for

hearings, but any detention incidental to removal must 'bear[] [a]

reasonable relation to [its] purpose.'" (quoting Zadvydas, 533

U.S. at 690)); see also Ingrid Eagly et. al., Detaining Families:

A Study of Asylum Adjudication in Family Detention, 106 Cal. L.

Rev. 785, 848 (2018) (finding that during the period 2001 to 2016,

"86% of family detainees attended all their court hearings" after

release from detention, and among those seeking asylum, "96%

attend[ed] all their hearings"). The only argument the government

- 26 - makes in that regard is that noncitizens are in a better position

to present evidence as to flight risk and that obtaining records

from state and local authorities consumes government resources.

But as a practical matter, the government already has a strong

incentive to obtain criminal records even under existing bond

procedures; we doubt very much that shifting the burden will cause

the government to expend more than minimal additional resources

obtaining such records. In fact, limiting the use of detention to

only those noncitizens who are dangerous or a flight risk may save

the government, and therefore the public, from expending

substantial resources on needless detention. See Velasco Lopez,

978 F.3d. at 854 n.11 ("Detention [of noncitizens] costs taxpayers

approximately $134 per person, per day, according to ICE's

estimates." (citing Dep't of Homeland Sec., U.S. Immigr. & Customs

Enf't Budget Overview (2018) at 14)).

Perhaps more importantly, such unnecessary detention

imposes substantial societal costs. This case illustrates those

costs well: Because of her incarceration, Hernandez was separated

from her fiancé and unable to maintain her employment, after living

peacefully in Portland for over a year. More generally,

noncitizens subject to immigration detention include spouses,

children, and parents of U.S. citizens, caretakers of children and

elderly relatives, and leaders in religious, cultural, and social

- 27 - groups. The needless detention of those individuals thus

"separates families and removes from the community breadwinners,

caregivers, parents, siblings and employees." See Id. at 855.

Those ruptures in the fabric of communal life impact society in

intangible ways that are difficult to calculate in dollars and

cents. Even so, as twenty states report in an amicus brief to

this court, the financial costs imposed by such widespread communal

disruption are severe: "[States'] revenues drop because of reduced

economic contributions and tax payments by detained immigrants,

and their expenses rise because of increased social welfare

payments in response to the harms caused by unnecessary detention."

In short, given the risk that the current procedures

lead to many instances of needless detention, entailing

substantial social and financial costs, the public interest in

placing the burden of proof on the detainee is uncertain at best,

and may well be negative.

Pointing to section 1226(a), as well as a related

provision, 8 U.S.C. § 1226(e), the government next argues that the

procedures sought by Hernandez are "contrary to Congress's intent

that such matters be left to the Attorney General's unreviewable

discretion." See 8 U.S.C. § 1226(e) ("The Attorney General's

discretionary judgment regarding the application of this section

shall not be subject to review. No court may set aside any action

- 28 - 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."). To the extent the government is

arguing that section 1226(e) deprives the district court or this

court of jurisdiction, that claim fails: Hernandez does not

challenge the IJ's ultimate exercise of discretion, but rather

"the extent of the Government's detention authority under the

'statutory framework' as a whole." Jennings, 138 S. Ct. at 841.6

Moreover, though our decision cabins the discretion granted by

section 1226(a) through the constitutional restraints applicable

to all government action, see Zadvydas, 533 U.S. at 695 (explaining

that, despite Congress's "'plenary power' to create immigration

law, . . . Executive and Legislative Branch decisionmaking in that

area . . . is subject to important constitutional limitations"),

within those limits the government maintains discretion in each

case to grant or deny bond.

Likewise, the government makes much of the Court's

statement in Nielsen v. Preap that section 1226(a) gives the

government "broad discretion" to detain or release noncitizens.

6 For similar reasons, the Court's statement in its pre- Mathews decision of Carlson v. Landon, 342 U.S. 524 (1952), that Congress intended the "Attorney General's exercise of discretion" regarding the detention of Communists to be "presumptively correct and unassailable except for abuse," is inapposite. 342 U.S. at 540.

- 29 - 139 S. Ct. 954, 966 (2019). But in context, it is clear the Court

was merely contrasting section 1226(a) with section 1226(c), which

mandates detention of certain noncitizens.

Shifting gears, the government contends that it would be

"backwards" to "put the burden on the Government to justify the

alien's detention during the interim period when the Government is

pursuing removal when the burden is on the alien [to prove that he

or she was admissible or to prove a defense to removal] in the

underlying removal proceedings themselves." See 8 U.S.C.

§ 1229a(c)(2), (c)(4)(A). This superficially appealing logic is

flawed because the success or failure of a removal defense is

outcome determinative in the removal proceeding, yet it serves as

only one of several factors potentially relevant to gauging whether

a person is a flight risk pending the removal decision. Moreover,

any assessment of a removal defense at the bond hearing -- a

preliminary stage in the removal proceedings at which point the

noncitizen likely lacks evidence relevant to his or her defense -

- is necessarily tentative. And nothing in our ruling precludes

an IJ from considering the applicable burden when assessing the

strength of a removal defense as a factor in evaluating flight

risk.7

7 The government's argument also ignores that in the case of a noncitizen who was properly admitted, the government bears the

- 30 - In a final salvo, the government contends that two of

our sister circuits have ruled in a manner inconsistent with our

holding today. See Ali v. Brott, 770 F. App'x 298 (8th Cir. 2019);

Borbot v. Warden Hudson Cnty. Corr. Facility, 906 F.3d 274 (3d

Cir. 2018). We see no conflict.

To start, although Ali contains dicta that portends a

different result from that reached here, the Eighth Circuit made

clear that it was not reaching the constitutional question that is

now before us. See 770 F. App'x at 302. Likewise, the issue

presented here was not before the court in Borbot, which was a

challenge based on length of detention in which the petitioner

sought "to compel a second bond hearing despite alleging no

constitutional defect in the one he received." 906 F.3d at 279

(second emphasis added). And although the court in Borbot stated

that the petitioner had been granted "meaningful process" under

section 1226(a), it made that statement in order to contrast

section 1226(a) with section 1226(c), under which there is no bond

hearing. Furthermore, even assuming that "meaningful process"

language indicates that the Third Circuit might have viewed the

procedures under section 1226(a) to be constitutionally adequate,

the Third Circuit's subsequent decision in German Santos v. Warden

burden of proving by clear and convincing evidence that he or she is deportable. See id. § 1229a(c)(3)(A); Woodby v. Immigr. & Naturalization Serv., 385 U.S. 276, 277 (1966).

- 31 - Pike Cnty. Corr. Facility, 965 F.3d 203 (3d Cir. 2020), casts doubt

on the continuing validity of that view. In German Santos, the

court held that the government is required to bear the burden of

proving by clear and convincing evidence that a noncitizen is a

danger or flight risk once detention has become unreasonably

prolonged under section 1226(c). Id. at 213-14. That ruling was

based on the Addington line of cases, and we struggle to see why

the Third Circuit would have required those heightened protections

if its statement in Borbot -- that the procedures under

section 1226(a) provide "meaningful process" -- indicates that

those procedures comply with due process.

In sum, the balance of the Mathews factors weighs in

favor of Hernandez: "[T]he private interest affected is

commanding; the risk of error from [placing the burden of proof on

the noncitizen] is substantial; and the countervailing

governmental interest . . . is comparatively slight." Santosky,

455 U.S. at 758.

D.

The government urges that notwithstanding the foregoing

assessment of the three Mathews factors, precedent precludes us

from placing any burdens of proof on the government. First, it

argues that the Supreme Court has in three cases upheld detention

of noncitizens pending removal proceedings "on the basis of a

- 32 - categorical, rather than individualized, assessment that a valid

immigration purpose warranted interim custody" (emphasis in

original). See Demore, 538 U.S. at 531; Carlson v. Landon, 342

U.S. 524, 538 (1952); Reno v. Flores, 507 U.S. 292, 306 (1993).

Each of these cases, however, is distinguishable from

the circumstances presented here. In Demore, the Court held that

section 1226(c)'s mandatory detention provision, which applies to

noncitizens convicted of specified crimes and provides no

opportunity for release on bond in the mine-run of such cases,

does not violate due process. See 538 U.S. at 528-531; 8 U.S.C.

§ 1226(c); but see 538 U.S. at 532-33 (Kennedy, J., concurring)

("Were there to be an unreasonable delay by the [government] in

pursuing and completing deportation proceedings, it could become

necessary then to inquire whether the detention is not to

facilitate deportation, or to protect against risk of flight or

dangerousness, but to incarcerate for other reasons."). The

government contends that because it may detain a noncitizen without

any bond hearing under section 1226(c), it follows that the bond

hearing Hernandez received under section 1226(a), and the

administrative review to which she was entitled, satisfies due

process.

In upholding the constitutionality of section 1226(c)'s

mandatory detention procedure in Demore, however, the Court

- 33 - explained that that section specifically applies to a class of

noncitizens who had already been convicted (beyond a reasonable

doubt) of committing certain serious crimes. As to these "criminal

aliens," "Congress had before it evidence suggesting that

permitting [their] discretionary release . . . pending their

removal hearings would lead to large numbers . . . skipping their

hearings and remaining at large in the United States unlawfully."

538 U.S. at 528; see id. at 518-21 (describing studies that

Congress considered showing high recidivism rates and high rates

of failure to appear for removal hearings among "criminal aliens").

The Court relied on those findings in holding that section 1226(c)

comports with due process, stating that "[t]he evidence Congress

had before it certainly supports the approach it selected." Id.

at 528.

The circumstances here are quite different. Unlike

section 1226(c), section 1226(a) applies to a wide swath of

noncitizens, many of whom, like Hernandez, have no criminal record

at all.

The government responds that, like section 1226(c),

section 1226(a) was enacted as part of IIRIRA, which was motivated

by Congress's concern that "[a] chief reason why many deportable

aliens are not removed from the United States is the inability of

[immigration officials] to detain such aliens through the course

- 34 - of their deportation proceedings." H.R. Rep. 104-469, pt. 1, at

123. As noted above, however, IIRIRA did not change

section 1226(a) except by increasing the minimum bond amount from

$500 to $1,500. In other words, even as Congress limited bond

opportunities for noncitizens covered by section 1226(c), it chose

to maintain section 1226(a)'s discretionary bond provision. And

at the time Congress chose to do so, the BIA had long interpreted

section 1226(a) as placing the burden of proof in bond hearings on

the government. See Matter of Patel, 15 I. & N. Dec. 666 (B.I.A.

1976). So one cannot find in IIRIRA any support at all for the

BIA's subsequent reversal of the burden that Congress left

undisturbed.

Carlson v. Landon is also distinguishable. Carlson

involved a challenge by noncitizens accused of participating in

Communist activities to their detention pending a determination of

removability. See 342 U.S. at 528-29. Although the individuals

detained in Carlson had not been determined to be dangerous or a

flight risk, the Court upheld their detention "by reference to the

legislative scheme to eradicate the evils of Communist activity."

Id. at 543. The purpose of that legislative scheme, the Internal

Security Act, was to "deport all alien Communists as a menace to

the security of the United States," id. at 541, based on

Congressional findings that the "Communist organization in the

- 35 - United States . . . present[s] a clear and present danger to the

security of the United States," id. at 535 n.21 (quoting 50 U.S.C.

§ 781(15)). The Court explained that because

all alien Communists are deportable, like Anarchists, because of Congress' understanding of their attitude toward the use of force and violence in such a constitutional democracy as ours to accomplish their political aims, evidence of membership plus personal activity in supporting and extending the [Communist] Party's philosophy concerning violence gives adequate ground for detention.

Id. at 541.

Thus, much as in Demore, Congress made specific findings

as to the dangerousness of a class of noncitizens, and those

findings were found to have justified the detention of noncitizens

even in the absence of individualized determinations as to danger

and flight risk. But for the same reasons that Demore is a poor

analog to this case, so too is Carlson: no similar findings

regarding dangerousness or flight risk have been made as to the

class of noncitizens detained under section 1226(a). Moreover, as

Hernandez points out, Carlson does not address the question of

burden of proof, which was not the basis of the petitioners'

challenge. Indeed, to the extent Carlson references burdens of

proof, the Court explained that the Attorney General does not have

"untrammeled discretion as to bail," but rather "[c]ourts review

- 36 - his determination" and "he must justify his refusal of bail." Id.

at 543.

Nor does Reno v. Flores control this case. Flores

involved, among other things, a procedural due process challenge

to a regulation that denied bail to noncitizen minors in removal

proceedings who could not be released into the custody of a parent,

legal guardian, or adult relative. See 507 U.S. at 297, 306-09.

The relevance of Flores to this case is not immediately apparent,

as the detained minors' challenge was not based on the allocation

or standard for the burden of proof applicable to the custody

determination. Rather, the minors' principal argument was that

the immigration agency should be required to determine whether

"detention . . . would better serve [their] interests than release

to some other 'responsible adult,'" even if that adult was not a

parent, guardian, or relative. Id. at 308.

Undeterred, the government points to the Court's

statement that "due process is satisfied by giving the detained

alien juveniles the right to a hearing before an immigration

judge," id. at 309 (emphasis in original), and argues that because

every noncitizen detained under section 1226(a) has a right to a

bond hearing, due process is satisfied. The Court's statement,

however, was simply a response to the lower courts' holding that

the agency's "procedures are faulty because they do not provide

- 37 - for automatic review by an immigration judge of the initial

deportability and custody determinations." Id. at 308 (emphasis

in original). Moreover, the hearings in Flores were governed by

Matter of Patel, under which the government bore the burden of

proving danger and flight risk. Id. at 295.

In another line of attack, the government shifts its

focus back to Demore, arguing that the Court in that case "rejected

the applicability" of Addington and Foucha in the context of

noncitizens detained during the pendency of removal proceedings.

The majority opinion in Demore, however, does not mention Foucha,

Addington, or similar civil detention cases, despite the fact that

the dissent repeatedly cites them in support of its position. We

decline to read the majority's silence as to Foucha and Addington

as an across-the-board "rejection" of their applicability in

immigration detention cases. See Shalala v. Ill. Council on Long

Term Care, Inc., 529 U.S. 1, 18 (2000) ("This Court does not

normally overturn . . . earlier authority sub silentio.")

Addington specifically admonished that "civil commitment for any

purpose constitutes a significant deprivation of liberty that

requires due process protections," 441 U.S. at 425 (emphasis

added), and as the government itself acknowledges, Zadvydas, also

- 38 - an immigration detention case, cites to Foucha and Salerno.8 See

Zadvydas, 533 U.S. at 690; see also Demore, 538 U.S. at 553

(Souter, J., concurring in part and dissenting in part) ("Nowhere

[in Zadvydas] did we suggest that the 'constitutionally protected

liberty interest' in avoiding physical confinement, even for

aliens already ordered removed, was conceptually different from

the liberty interest of citizens considered in Jackson, Salerno,

Foucha, and Hendricks. On the contrary, we cited those cases and

expressly adopted their reasoning, even as applied to aliens whose

right to remain in the United States had already been declared

forfeited.").

Despite Zadvydas's reliance on Foucha, the government

next argues that Zadvydas in fact supports its position that the

noncitizen seeking release, not the government, should bear the

burden of proof at a section 1226(a) bond hearing. In Zadvydas,

the Court confronted the "serious constitutional problem arising

out of a statute that . . . permits an indefinite, perhaps

permanent, deprivation of human liberty without" sufficient

procedural protection. 533 U.S. at 692. To avoid that problem,

the Court construed the statute -- which authorizes the detention

8 Although the government attempts to distinguish Zadvydas on its facts, the differences noted by the government do not negate that Zadvydas found Foucha and Addington instructive as to due process analysis in the context of immigration detention.

- 39 - of noncitizens subject to a final removal order -- to "contain an

implicit 'reasonable time' limitation." Id. at 682. In order to

operationalize that limitation, the Court decided that after six

months of detention, "once 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." Id. at 701. The

government now argues that because the Court in Zadvydas put the

burden in the first instance on the noncitizen seeking release, it

implicitly held that placing the burden of proof on noncitizens

seeking release in other contexts cannot violate due process.

This hunt for inferential support in Zadvydas overlooks

the Court's express criticism of the underlying statute for putting

the burden of proving dangerousness on the noncitizen. See id. at

691-92 (noting that "preventive detention based on dangerousness"

must be "subject to strong procedural protections" and

disapproving of the fact that under the statute "the alien bears

the burden of proving he is not dangerous"). Moreover, the burden

placed on the noncitizen in Zadvydas -- to "provide[] good reason

to believe that there is no significant likelihood of removal in

the reasonably foreseeable future," id. at 701 -- is quite

different from the burden placed on a noncitizen detained under

section 1226(a) to "show to the satisfaction of the Immigration

- 40 - Judge that he or she" is neither dangerous nor a flight risk,

Matter of Guerra, 24 I. & N. Dec. at 40. Indeed, Hernandez's case

amply demonstrates the difference. Given her communal ties and

lack of criminal record, it is hard to imagine she did not provide

"good reason to believe" she was not dangerous or a flight risk.

Yet under current BIA regulations, she could not meet the burden

of showing she was not dangerous, given the Red Notice.

Additionally, as the Government notes, due process "is flexible

and calls for such procedural protection as the particular

situation demands." Mathew v. Eldridge, 424 U.S. at 334. There

is no indication that the Supreme Court intended Zadvydas's burden

allocation procedures for individuals already subject to a final

order of removal to apply in the context of detention pending a

determination of removability under section 1226(a). Cf. Johnson

v. Guzman Chavez, 141 S. Ct. 2271, 2290 (2021) (contrasting

noncitizens detained prior to having been ordered removed with

those held after having been ordered removed; noting that

noncitizens "who have not been ordered removed are less likely to

abscond because they have a chance of being found admissible, but

[those] who have already been ordered removed are generally

inadmissible").

The government also points to language in the Jennings

dissent which it contends approves of the existing procedures under

- 41 - section 1226(a). See 138 S. Ct. at 882 (Breyer, J., dissenting).

But the issue currently before us was not squarely before the Court

in Jennings. Likewise, the Court was not presented with this issue

in Preap. Regardless, the Court's statement in Preap that a

noncitizen detained under section 1226(a) "may secure his release

if he can convince the officer or immigration judge that he poses

no flight risk and no danger to the community," 139 S. Ct. at 960,

was merely a description of the agency's regulations.

The government similarly contends that two district

court decisions in our circuit approved of the procedures governing

section 1226(a) bond proceedings "as a remedy" for those detained

under section 1226(c). See Reid v. Donelan, 22 F. Supp. 3d 84, 93

(D. Mass. 2014), vacated and remanded on other grounds, 819 F.3d

486 (1st Cir. 2016), opinion withdrawn, No. 14-1270, 2018 WL

4000993 (1st Cir. May 11, 2018); Gordon v. Johnson, 300 F.R.D. 31,

41 (D. Mass. 2014), vacated sub nom. Gordon v. Lynch, 842 F.3d 66

(1st Cir. 2016) But those decisions were both based on the idea

that "individuals who committed a § 1226(c) predicate offense

should not receive more protections than § 1226(a) detainees."

Reid, 22 F. Supp. 3d at 92 (emphasis in original); see Gordon, 300

F.R.D. at 42 (noting additionally that the court "has its concerns

about the procedures used to effectuate the requirements of

§ 1226(a)"). The government's reliance on Castaneda v. Souza, 810

- 42 - F.3d 15 (1st Cir. 2015) (en banc) is likewise unavailing. There

is no indication that the petitioner, who was detained under

section 1226(c), sought bond procedures beyond those provided in

section 1226(a); rather, she challenged ICE's determination that

she was subject to mandatory detention under section 1226(c).

Leaving no stone unturned, the government lastly points

to a district court opinion which it claims held contrary to our

conclusion here. See Maldonado-Velasquez v. Moniz, 274 F. Supp.

3d 11, 14-15 (D. Mass. 2017). But, beyond venturing a "guess,"

the district court did not decide the due process issue. Id. at

15. Instead, it assumed arguendo that the burden had been

misallocated but concluded that the petitioner could not show any

prejudice flowing from that error. Id. at 13-14. We dismissed

the petitioner's appeal as moot. Maldonado-Velasquez v. Moniz,

No. 17-1918 (1st Cir. March 22, 2018). And although we stated

that the petitioner's "due process claim is not compelling," it is

clear, as the government itself notes, that we were referring to

the petitioner's inability to show prejudice. Id. at n.2.

For all of the foregoing reasons, we remain unconvinced

by the government's contention that we should not view an analysis

of the Matthews factors as ultimately controlling. We therefore

conclude that the government must bear the burden of proving

- 43 - dangerousness or flight risk in order to continue detaining a

noncitizen under section 1226(a).

E.

Having decided that the government bears the burden of

proof, we now turn to the extent of that burden. "[T]he function

of legal process is to minimize the risk of erroneous decisions,"

Addington, 441 U.S. at 425, and the standard of proof "serves to

allocate the risk of error between the litigants," id. at 423. In

detention cases, applying a heightened "standard of proof . . .

reflects the value society places on individual liberty," id. at

425 (quoting Tippett v. Maryland, 436 F.2d 1153, 1166 (4th Cir.

1971)(Sobeloff, J., concurring in part and dissenting in part),

and avoids the risk associated with the preponderance standard of

"increasing the number of individuals erroneously committed," id.

at 426 (noting "it is at least unclear to what extent, if any, the

state's interests are furthered by using a preponderance

standard"). See also id. at 423 (explaining that, in contrast to

cases in which liberty from detention is at issue, in "monetary

dispute[s] between private parties . . . society has a minimal

concern with the outcome . . . [and so] plaintiff's burden of proof

is a mere preponderance of the evidence").

Therefore, in several contexts, the government must

justify detention by clear and convincing evidence. See, e.g.,

- 44 - Addington, 441 U.S. at 433 (involuntary civil commitment to mental

hospital); Foucha, 504 U.S. at 86 (confinement of insanity

acquittees). Other significant liberty interests are similarly

protected: The government must satisfy the clear and convincing

standard in order to terminate parental rights, see Santosky, 455

U.S. at 748, deport a noncitizen, see Woodby v. Immigr. &

Naturalization Serv., 385 U.S. 276, 277 (1966), or denaturalize an

individual, see Chaunt v. United States, 364 U.S. 350, 353 (1960).

As to the government's burden to prove that a noncitizen

presents a danger, we see no reason to vary from that approach:

For the reasons described above, there is a heightened risk of

prejudicial error and the government has ample and better access

to evidence of dangerousness. See supra Section III.B.9

But with respect to flight risk, the second Mathews

factor leads us to conclude that the government need only carry

its burden by a preponderance of the evidence. Simply put, there

is less risk of error from a preponderance standard on this issue

because, as noted, detained citizens possess knowledge of many of

the most relevant factors, such as their family and community ties,

9The government's argument that the Supreme Court has not required the government to meet a clear and convincing standard to justify the detention of noncitizens is unavailing. In short, none of the cases cited by the government presented the question of what standard the government would have to meet to justify the detention of a noncitizen. Those cases therefore offer limited guidance on that issue, let alone binding precedent.

- 45 - place of residence, length of time in the United States, and record

of employment. And because the burden is on the government, the

noncitizen need not prove a negative (by showing, for example,

that he or she has not fled prosecution or failed to appear at

court) but is instead faced with the more straightforward task of

marshalling evidence readily available to her so as to rebut the

government's evidence. Given these considerations, the probable

value of a heightened standard of proof is thus less apparent when

it comes to flight risk.

Two other considerations underlie our decision. First,

a noncitizen's flight risk (as opposed to his or her danger) has

a close nexus to the government's interest in ensuring the prompt

execution of deportation orders. Second, although the Court has

consistently required a clear and convincing standard when the

government seeks to detain on the basis of danger, most of those

cases do not involve risk of flight. In the analogous context of

pretrial criminal detention under the Bail Reform Act, where flight

risk is a factor, the government need only prove flight risk by a

preponderance of the evidence in order to continue detention. See

United States v. Patriarca, 948 F.2d 789, 793 (1st Cir. 1991).

Of course, the analogy to criminal pretrial detention

has its limits. Criminal defendants, for example, have a right to

government-appointed counsel, 18 U.S.C. § 3142(f), while

- 46 - section 1226(a) detainees do not, 8 U.S.C. § 1362. But those

differences cut both ways: While they suggest the section 1226(a)

detainee may have fewer resources with which to marshal evidence

and argument, they also suggest that the government traditionally

encounters more hurdles in criminal rather than civil proceedings.

Cf. Immigr.& Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032,

1038 (1984) (noting the civil nature of deportation proceedings

and explaining that "various protections that apply in the context

of a criminal trial do not apply in a deportation hearing"). And

although the Speedy Trial Act, 18 U.S.C. § 3161, limits the

duration of pretrial detention, the average criminal defendant can

expect to be detained for a significant period of time. See

Amaryllis Austin, The Presumption for Detention Statute's

Relationship to Release Rates, 81 Fed. Prob. J. 52, 53 (2017)

(Noting that, as of 2016, "the average period of detention for a

pretrial defendant had reached 255 days" and in "several districts

[the] average [was] over 400 days"). All in all, as to the

government's burden to prove flight risk in a section 1226(a) bond

hearing, we conclude that the preponderance standard balances the

competing interests as fairly as it does in a criminal bail

hearing.

In sum, we hold that, in order to continue detaining

Hernandez under section 1226(a), due process requires the

- 47 - government to either (1) prove by clear and convincing evidence

that she poses a danger to the community or (2) prove by a

preponderance of the evidence that she poses a flight risk.

IV.

We consider, next, the question of prejudice. Normally

"[w]hen faced with a constitutional due process claim in the

immigration context, we ask whether the procedure at issue 'is

likely to have affected the outcome of the proceedings' as a

condition of relief." Hernandez Lara, 962 F.3d at 57 (quoting

Pulisir v. Mukasey, 524 F.3d 302, 311 (1st Cir. 2008)); see also

Lopez-Reyes v. Gonzales, 496 F.3d 20, 23 (1st Cir. 2007) ("Absent

cognizable prejudice, there is no due process claim.") Although

Hernandez argues that "a misallocated burden of proof is a

structural error [that] constitutes a per se prejudice," we need

not reach that argument. As the IJ observed, the reallocation of

the burden of proof ordered by the district court proved pivotal

in changing the result from detention to release. Nor has the

government challenged the district court's finding that Hernandez

was prejudiced. Cf. Hernandez Lara, 962 F.3d at 56-57 (noting a

circuit split on "whether a petitioner who was improperly denied

counsel in immigration proceedings must demonstrate that the

denial resulted in prejudice" but declining to decide the question

given that the petitioner was clearly prejudiced).

- 48 - V.

Before concluding, we address three arguments made by

the dissent in support of its claim that our decision amounts to

"judicial hubris."

A.

The dissent contends first that we should grant

Hernandez relief on a statutory basis, rather than on

constitutional grounds. The relief proposed by the dissent under

the Administrative Procedures Act (APA) is a declaration that

enforcing the BIA's current allocation of the burden of proof is

unlawful because the BIA acted in an arbitrary and capricious

manner when it placed the burden of proof in bond hearings on

noncitizens. The dissent would then vacate the district court's

current injunction and judgment and remand for the district court

to determine the "scope of any injunctive relief." The scope of

that injunctive relief, however, would necessarily be limited to

enjoining the enforcement of the BIA's current arbitrary and

capricious bond procedures, which would leave in place the prior

procedures. Though those procedures placed the burden of proof on

the government, they did not require the government to bear that

burden by clear and convincing evidence. See Matter of Patel, 15

I. & N. Dec. at 666 ("An alien generally is not and should not be

detained or required to post bond except on a finding that he is

- 49 - a threat to the national security or that he is a poor bail risk."

(citations omitted)).10

Hernandez, though, asks not just that the burden of proof

be allocated to the government. She claims that the constitution

requires the government to carry that burden by clear and

convincing evidence. The district court agreed; the IJ then

applied the clear and convincing standard; Hernandez was set free;

and the government now appeals, asking us to rule that Hernandez

was not entitled to a clear and convincing standard as to danger

or flight risk. So resolving this action by deciding the APA claim

developed by the dissent in Hernandez's favor, as the dissent

proposes, would deny by neglect a central aspect of the relief

sought by Hernandez under her constitutional claim.11 Ruling as

the dissent proposes would also require that we more broadly vacate

the relief ordered by the district court, and allow for a new

10 The dissent asserts that the BIA has not addressed the quantum of proof. Not so: As explained above, the BIA has required a noncitizen to prove "to the satisfaction of the Immigration Judge that he or she merits release on bond." Matter of Guerra, 24 I. & N. Dec. at 40. 11 For this reason, the dissent's charge that we have ordered relief that is "more burdensome" than "necessary to provide complete relief" falls flat. Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 765 (1994) (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)). Whether or not the relief goes beyond that necessary to decide the APA claim, the crucial point is that it is no way more burdensome than necessary to accord "complete relief" as to Hernandez's constitutional claim. Id.

- 50 - hearing not just on flight risk, but on dangerousness as well. In

short, what the dissent proposes is not constitutional avoidance,

which entails finding an alternative basis for providing the relief

sought under the constitutional claim. See Marasco & Nesselbush,

LLP v. Collins, No. 20-1397, 2021 WL 3012705, at *18 (1st Cir.

July 16, 2021) (declining to address due process claim under

doctrine of constitutional avoidance because "the relief available

under the [statutory ground] adequately addresse[d] [the

plaintiff's] remedial requests" and so "a non-constitutional

disposition [was] possible"). Rather, the dissent proposes that

we simply shirk our duty to decide a properly raised claim upon

which a substantial portion of the request for relief hinges.

The dissent also contends that our decision infringes on

the province of the political branches. That general accusation

can be made in every case involving an administrative rule or

congressional statute, including every due process case. Clearly,

the fact that another branch has acted in an area is an

insufficient reason to refrain from exercising our "duty . . . to

say what the law is," Marbury v. Madison, 5 U.S. 137, 177 (1803),

even in immigration and detention cases, and even where doing so

requires setting aside Congressional enactments, executive

actions, or state statutes. See, e.g., Zadvydas, 533 U.S. at 695

- 51 - (explaining that, despite Congress's "'plenary power' to create

immigration law, . . . Executive and Legislative Branch

decisionmaking in that area . . . is subject to important

constitutional limitations"; construing immigration detention

statute to avoid unconstitutional detention); Hamdi v. Rumsfeld,

542 U.S. 507, 536-37 (2004) (holding that even "in the context of

military action, it would turn our system of checks and balances

on its head to suggest that a citizen could not make his way to

court with a challenge to the factual basis for his detention by

his Government, simply because the Executive opposes making

available such a challenge"); Foucha, 504 U.S. at 81-82 (striking

down Louisiana statute under which "the State need prove nothing

to justify continued detention" of insanity acquittees).

As these and many other cases make clear, ours is a

system in which even the most sensitive and critical exercises of

power by the political branches can be constrained by the rights

of the individual. In few instances are those constraints more

necessary than when the government seeks to lock up individuals

behind bars. Addington, 441 U.S. at 425 ("[C]ivil commitment for

any purpose constitutes a significant deprivation of liberty that

requires due process protections."). And it is precisely the role

of the judiciary to define those constraints. Far from violating

the separation of powers, exercising that role is integral to

- 52 - fulfilling the vision of the "Framers of the Constitution that,

within our political scheme, the separation of governmental powers

into three coordinate Branches is essential to the preservation of

liberty." Mistretta v. United States, 488 U.S. 361, 380 (1989).

We are mindful that immigration is "interwoven with

contemporaneous policies in regard to the conduct of foreign

relations, the war power, and the maintenance of a republican form

of government." Demore, 538 U.S. at 522. But nothing in our

opinion today prevents the political branches from detaining

noncitizens where necessary, let alone from exercising the power

to exclude or expel noncitizens. Moreover, even where war and

foreign relations are at issue, the Constitution "most assuredly

envisions a role for all three branches when individual liberties

are at stake." Hamdi, 542 U.S. at 536; see also Zadvydas, 533

U.S. at 695. And as we explained above, the Court has consistently

held that due process "applies to all 'persons' within the United

States, including aliens, whether their presence here is lawful,

unlawful, temporary, or permanent." Zadvydas, 533 U.S. at 693.

Though we hope and expect that the political branches exercise

their authority in harmony with the rights of noncitizens, history

and common sense teach that rights are most likely to be

disregarded when they belong to those who cannot vote. Cf. United

States v. Carolene Prod. Co., 304 U.S. 144, 153 n.4 (1938) (noting

- 53 - that "prejudice against discrete and insular minorities may be a

special condition, which tends seriously to curtail the operation

of those political processes ordinarily to be relied upon to

protect minorities").

We stress as well that nothing in our decision restricts

the political branches from implementing more nuanced rules for

the adjudication of requests for release under section 1226. All

that is required is that those rules comport with the minimum

standards of the constitution. Cf. Addington, 441 U.S. at 431

("As the substantive standards for civil commitment may vary from

state to state, procedures must be allowed to vary so long as they

meet the constitutional minimum."). The dissent speculates that

complying with those minimum standards will impose additional

burdens on an overtaxed immigration system. But as we have

explained, avoiding needless detention may well reduce the burden

of enforcing immigration laws, particularly since, as the dissent

concedes, the vast majority of noncitizens released from detention

(like Hernandez) appear at their removal hearings.

C.

Finally, the dissent contends that our decision is

overly broad because the current bond procedures are

constitutional in at least some cases, dooming a facial challenge

to those procedures. To this contention we offer two responses.

- 54 - First, and most simply, Hernandez claims that the

current BIA standard of proof as applied in her case caused her to

be unconstitutionally detained. And the IJ found the standard was

indeed pivotal. So whatever one might say about facial challenges

generally poses no bar to granting Hernandez relief.

Second, the dissent's reasoning seems flawed, even

circular. The logic of the dissent appears to be that if there is

sufficient evidence of flight risk in a particular case (e.g., per

the dissent, fleeing from a checkpoint) the government need not

carry the burden of proving flight risk in that particular case.

But "the right to procedural due process . . . does not depend

upon the merits of a claimant's substantive assertions." Carey v.

Piphus, 435 U.S. 247, 266 (1978). Moreover, the dissent's argument

begs the question: What burden and standard would apply in

determining whether the merits of the request for release are

sufficient to obviate the need for placing the burden on the

government? The dissent does not say. If the burden is as we

suggest it should be, then the dissent's approach simply front

ends the application of that requirement. And if it is a lesser

burden, then the dissent's approach is simply a round-about way of

saying that there should be a lesser burden.

Given all of the above, it is unsurprising that the

Supreme Court has consistently decided procedural due process

- 55 - challenges in the detention context on a categorical basis (e.g.,

all criminal defendants or insanity acquittees). See, e.g., In

re Winship, 397 U.S. 358, 364 (1970) (holding due process requires

that all criminal defendants must be convicted by proof beyond a

reasonable doubt); Hamdi, 542 U.S. at 533-35 (setting forth the

contours of the procedures required under due process for all

"citizen-detainee[s] seeking to challenge [their] classification

as an enemy combatant"); Addington, 441 U.S. at 433 (holding that

"the individual's interest in the outcome of a civil commitment

proceeding is of such weight and gravity that due process requires

the state to justify confinement by proof more substantial than a

mere preponderance of the evidence"); Foucha, 504 U.S. at 86

(holding broadly that insanity acquittees may not be detained

unless the government can show they are dangerous by clear and

convincing evidence).

In none of these cases did the Court limit its holding

to the specific individual before it or indicate that the

requirements of due process would fluctuate based on the strength

of any particular individual's case on the merits.12 Cf. Addington,

12Similarly, in a variety of other contexts, the Court has announced due process rules for entire categories of claimants, despite variations within those classes. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 260, 270 (holding that all "welfare recipients" must be afforded an "evidentiary hearing before the termination of benefits" at which they must be "given an

- 56 - 441 U.S. at 425 (noting that "even if the particular standard-of-

proof catchwords do not always make a great difference in a

particular case, adopting a 'standard of proof is more than an

empty semantic exercise'" because the standard of proof "reflects

the value society places on individual liberty" (quoting Tippett,

436 F.2d, at 1166)). So too, here: The category consists of

persons detained under section 1226(a) (i.e., those who have not

been convicted already of the crimes calling for detention under

section 1226(c)); and the fact that any given section 1226(a)

detainee may have a more or less compelling case for release will

bear on the outcome of the hearing but does not alter the minimum

procedures required by due process in a bond hearing.

Nor did such cases vary the requirements of due process

for different "subcategories" of detainees, e.g., those with

certain types of mental illness or those who have committed certain

types of crimes. Similarly, cases outside of the detention context

opportunity to confront and cross-examine" witnesses relied upon by the government); Vitek v. Jones (Setting forth minimal due process requirements for all "prisoners facing involuntary transfer to a mental hospital"; holding due process requires all such prisoners receive "qualified and independent assistance" regardless of the individual's mental illness or other circumstances); Woodby, 385 U.S. at 285-86 (broadly holding that the government must prove grounds for deportation "by clear, unequivocal, and convincing evidence"); Chaunt, 364 U.S. at 353 (broadly holding that the government must prove grounds for denaturalization by "clear, unequivocal, and convincing evidence").

- 57 - do not slice and dice claimants (such as welfare recipients) into

some unknown number of unspecified subcategories.

We are far from alone in applying procedural due process

protections to well-defined categories of noncitizens (e.g.,

section 1226(a) detainees), rather than developing bespoke

procedures that would vary in their application from case to case

or subcategory to subcategory depending on the very factor that

the procedures are designed to assess. See, e.g., Hernandez, 872

F.3d at 990-91 (holding that IJs must consider a noncitizen's

financial circumstances and alternative conditions of release

during section 1226(a) bond hearings); Singh, 638 F.3d at 1203-04

(holding that "the government must prove by clear and convincing

evidence that an alien is a flight risk or a danger to the community

to justify denial of bond at a Casas hearing"); cf. Zadvydas, 533

U.S. at 701 (holding that once a noncitizen detained following a

final removal order has been held for six months, the noncitizen

may challenge his continued detention).

Recognizing well-defined categorical rules in procedural

due process cases is unsurprising from the standpoint of judicial

and administrative efficiency. Otherwise, every controversy would

become two cases in one: a determination of the procedures

required by due process, followed by a resolution of the merits.

For detention pending the completion of removal proceedings, that

- 58 - inefficiency would be exacerbated because each case begins in an

administrative proceeding, while habeas claims are heard in the

district courts.

For all of these reasons, we decline the dissent's

invitation to gum up the adjudication of immigration bond

proceedings by requiring a case-by-case determination of the

burden of proof.

VI.

For the foregoing reasons, we affirm in part, reverse in

part, and remand to the district court with instructions to allow

the government, should it wish to do so, to conduct a new hearing

before the Immigration Judge at which, in order to reinstitute

Hernandez's detention, the government will need to prove flight

risk by a preponderance of the evidence.

- Dissenting Opinion Follows -

- 59 - LYNCH, Circuit Judge, dissenting. With respect, I

cannot join the majority opinion, which is at odds with binding

Supreme Court case law and creates circuit splits. First, the

majority gives a backhand to the basic principle of constitutional

avoidance and violates basic separation of powers principles.

Second, if that were not enough, the majority's due process

analysis is simply wrong and contrary to controlling law.

It is a "cardinal principle of judicial restraint," that

"if it is not necessary to decide more, it is necessary not to

decide more." PDK Lab'ys Inc. v. DEA, 362 F.3d 786, 799 (D.C.

Cir. 2004) (Roberts, J., concurring in part and dissenting in

part). That principle is never more important than when we can

resolve a case on statutory grounds to avoid reaching a

constitutional question. See, e.g., Ashwander v. TVA, 297 U.S.

288, 347 (1936) (Brandeis, J., concurring). And our obligation to

avoid a constitutional judgment becomes even stronger when doing

so allows us to return decisions to politically accountable actors.

Cf. Quill v. Vacco, 80 F.3d 716, 738-40 (2d Cir. 1996) (Calabresi,

J., concurring in the judgment) (articulating theory of

"constitutional remand").

In these related cases challenging the Board of

Immigration Appeal's ("BIA") allocation of burdens in

discretionary immigration bond proceedings to detained noncitizens

- 60 - facing removal13 ("noncitizens" or "detainees") in its 1999

decision In re Adeniji, 22 I. & N. Dec. 1102, 1113 (B.I.A. 1999)

(en banc), which still controls today, the asserted violations of

the Administrative Procedure Act ("APA") must be addressed first

and, in my view, entitle the plaintiffs to relief, albeit different

relief. That should be the start and end of our inquiry.

I also dissent because the majority's due process

holding is, in my view, quite wrong on the merits. No court should

needlessly constitutionalize a rule that is better left to the

executive and the Congress, which are, after all, responsive to

the voters.

We heard argument on the same day in three cases challenging

the BIA's Adeniji decision, allocating the burdens of production

and persuasion in discretionary immigration bond proceedings: this

case; Doe v. Tompkins, No. 19-1368; and Pereira-Brito v. Garland,

Nos. 20-1037 and 20-1119. In both Doe and Pereira-Brito, the

plaintiffs pleaded their detention under Adeniji was illegal

13 While most detainees are undocumented noncitizens, a smaller number are lawfully present persons who are subject to removal because, for example, they have committed certain crimes, have engaged in fraud, or threaten national security. 8 U.S.C. § 1227.

- 61 - because Adeniji was in violation of the APA.14 I would resolve

these cases on APA grounds. By its choice as to the order of the

cases it addresses, the majority has attempted to avoid discussion

of the key argument underlying all of this litigation. The

analysis should have started with Pereira-Brito and Doe under the

principles of constitutional avoidance.

Those APA arguments are properly before us. Though the courts

below did not reach those arguments and though the plaintiffs have

not pressed them robustly before us, we may decide a case on any

grounds supported by the record. Steinke v. Sungard Fin. Sys.,

Inc., 121 F.3d 763, 768 (1st Cir. 1997). When we can avoid a

constitutional question, we must turn to such other grounds even

when the litigants lead with their constitutional claims. See

Greenless v. Almond, 277 F.3d 601, 605-07 (1st Cir. 2002). Indeed,

the Supreme Court has often endorsed a more lenient approach to

ordinary waiver rules when that approach allows the Court to avoid

thorny constitutional questions. See, e.g., Reno v. Flores, 507

U.S. 292, 300 n.3 (1993); Alma Motor Co. v. Timken-Detroit Axle

Co., 329 U.S. 129, 142 (1946).

14The Department of Justice has not been asked to directly respond to this argument in this court, as it would be if the constitutionality of a statute were at stake. Accordingly, I rely on the briefs it filed below.

- 62 - Were the Court to resolve Pereira-Brito and Doe as I propose,

it would be appropriate to vacate the injunction and judgment and

remand to the district court for further proceedings.

Having established that the APA questions are properly

before us, I turn to the regulatory and statutory context for the

APA challenge.

Congress has long authorized the Attorney General to

detain noncitizens in deportation proceedings.15 For most of the

twentieth century, the relevant statutes vested the Attorney

General with discretion to detain, release on bond, or

conditionally parole such noncitizens. Pub. L. No. 414, § 242(a),

66 Stat. 208, 208-09 (1952); Pub. L. No. 831, § 23(a), 64 Stat.

1010, 1011 (1950). Neither those statues nor their implementing

regulations defined who bore the burden of proof in bond

proceedings. See id.; Authority to Issue and Cancel Orders to

Show Cause; Authority to Issue Warrants of Arrest, 39 Fed. Reg.

20,367 (June 10, 1974) (codified at 8 C.F.R. § 242); Orders to

Show Cause and Warrants of Arrest, 28 Fed. Reg. 8,279, 8,280 (Aug.

13, 1963) (codified at 8 C.F.R. § 242). Instead, the BIA required

the government to prove that a noncitizen in removal proceeding

15Congress later transferred that authority to the Secretary of Homeland Security. 6 U.S.C. § 251.

- 63 - should be detained, applying a presumption in favor of liberty

that could be overcome by a showing that he posed a "threat to

national security" or was a "poor bail risk." Matter of Patel, 15

I. & N. Dec. 666, 666 (B.I.A. 1976).

In 1996, Congress passed the Illegal Immigration Reform

and Immigrant Responsibility Act ("IIRIRA"), which categorically

denied bond to noncitizens in deportation proceedings who have

been convicted of aggravated felonies and certain other offenses.

Pub. L. No. 104-208, § 303(a), 110 Stat 3009 (codified at 8 U.S.C.

§ 1226(c)). Because that change required the government to

increase its detention capacity, Congress provided for a two-year

transition period, during which the Attorney General had some

discretion to release criminal noncitizens. IIRIRA § 303(b)

(codified at note to 8 U.S.C. § 1226).

To implement IIRIRA during and after the transition

period, the Immigration and Naturalization Service ("INS") adopted

a series of regulations.16 Naturalization Inspection and Expedited

Removal of Aliens; Detention and Removal of Aliens; Conduct of

Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10312 (Mar.

6, 1997). As relevant here, those regulations provide that:

Any officer authorized to issue a warrant of arrest [(i.e., immigration officials but not

16 The INS's immigration enforcement functions were later transferred to the Bureau of Immigration and Customs Enforcement ("ICE"). 6 U.S.C. §§ 251, 291(a).

- 64 - immigration judges)] may, in the officer's discretion, release [a noncitizen] not described in section 236(c)(1) of the Act [(a criminal noncitizen)], under the conditions at section 236(a)(2) [(permitting bond or parole)] and (3) [(prohibiting work authorization)] of the Act; provided that the [noncitizen] must demonstrate to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the [noncitizen] is likely to appear for any future proceeding.

8 C.F.R. § 236.1(c)(8); accord id. § 1236.1(c)(8). In proposing

the rule concerning immigration officials other than immigration

judges ("IJs"), the INS said that, other than changes to the amount

of minimum bond amount, for non-criminal noncitizens "the proposed

rule essentially preserves the status quo for bond determination

by the [INS] and bond redetermination proceedings before

immigration judges." Inspection and Expedited Removal of Aliens;

Detention and Removal of Aliens; Conduct of Removal Proceedings;

Asylum Procedures, 62 Fed. Reg. 444, 450 (Jan. 3, 1997).

Despite this assertion of purported continuity, the

final rule changed the presumption of release before immigration

officials. In adopting the rule, the INS briefly explained the

change relying heavily on a report from the Inspector General of

the Department of Justice:

Several commenters stated that § 236 of the proposed rule as written is a reversal of long established procedure that provides that a noncriminal [noncitizen] is presumptively eligible for release. The Service has been

- 65 - strongly criticized for its failure to remove [noncitizens] who are not detained. A recent report by the Department of Justice Inspector General shows that when [noncitizens] are released from custody, nearly 90 percent abscond and are not removed from the United States. The mandate of Congress, as evidenced by budget enhancements and other legislation, is increased detention to ensure removal. Accordingly, because the Service believes that the regulation as written is consistent with the intent of Congress, the interim rule has not modified the proposed rule in this regard.

62 Fed. Reg at 10,323 (citing Dep't of Justice, Off. Inspector

General, Rep. No. I-96-03, Immigration and Naturalization Service

Deportation of Aliens After Final Orders Have Been Issued (1996)

("OIG Report"), https://oig.justice.gov/reports/INS/e9603/index.

htm). Two points are notable here. First, the Inspector General's

report was concerned with noncitizens subject to a final order of

removal, not the relevant category for § 1226(a) -- noncitizens

contesting their removability. Second, the INS did not explain

that Congress had to increase the detention budget to fund IIRIRA's

new mandatory detention scheme. See Matter of Garvin-Noble, 21 I.

& N. Dec. 672, 675 (B.I.A. 1997) ("In enacting the Transition

Period Custody Rules, Congress had before it evidence that the

Attorney General did not have sufficient resources to carry out

the mandatory detention requirement recently implemented

. . . ."); see also TVA v. Hill, 437 U.S. 153, 190 (1978) (holding

that budget appropriations cannot alter meaning of statute).

- 66 - The regulations also provide for IJ review of initial

bond determinations:

After an initial custody determination by the district director, including the setting of a bond, the respondent may, at any time before an order [of removal] becomes final, request amelioration of the conditions under which he or she may be released. Prior to such final order, and except as otherwise provided in this chapter, the [IJ] is authorized to exercise the authority in [8 U.S.C. § 1226] to detain the [noncitizen] in custody, release the [noncitizen], and determine the amount of bond, if any, under which the respondent may be released, as provided in § 3.19 of this chapter [(procedural rules)].

8 C.F.R. § 236.1(d)(1); accord id. § 1236.1(d)(1).

Following adoption of those regulations, the BIA

abrogated Patel and stated -- not in a regulation but only in a

reported decision in a single case -- that "for ordinary bond

determinations [before IJs] under [§ 1226(a)] . . . [a noncitizen]

must demonstrate that 'release would not pose a danger to property

or persons.'" Adeniji, 22 I. & N. Dec. at 1113.

The BIA tried to justify its departure from Patel by

relying on the new regulation, which did not concern IJs, and

stated that the regulation required it to shift the burden of proof

in detention proceedings before IJs. Id. at 1103, 1113. After

determining that the regulations applied both during and after the

transition period, id. at 1107-1112, the BIA held that:

- 67 - [f]rom the outset . . . the regulations under the IIRIRA have added as a requirement for ordinary bond determinations under section 236(a) of the Act that the [noncitizen] must demonstrate that "release would not pose a danger to property or persons," even though section 236(a) does not explicitly contain such a requirement. . . . We deem the regulatory provision at 8 C.F.R. § 236.1(c)(8) to contain the appropriate test, as it is binding on us and pertains directly to removal proceedings under the IIRIRA. Consequently, to be eligible for bond, the 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 proceeding."

Id. at 1113 (citation omitted).

An agency's decision is arbitrary or capricious when it

overlooks relevant issues or when it fails to "articulate a

satisfactory explanation for its action." Motor Vehicle Mfrs.

Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 43 (1983). When an agency changes an established policy, it

must show that "the new policy is permissible under the [relevant]

statute, that there are good reasons for it, and that the agency

believes it to be better." FCC v. Fox Television Stations, Inc.,

556 U.S. 502, 515 (2009).

In my view, the Adeniji decision by the BIA is arbitrary

and capricious. It rests on at least two erroneous and unreasoned

- 68 - administrative leaps. Further, I conclude the present regime is

likely contrary to Congressional intent.

The only reason the BIA offered for its departure from

Patel was that 8 C.F.R. § 236.1(c)(8) compelled its holding. That

interpretation was erroneous.17

The text of 8 C.F.R. § 236.1(c)(8), which Adeniji relies

on, does not apply to immigration judges. It sets bond standards

to be used by "officer[s] authorized to issue a warrant of arrest."

8 C.F.R. § 236.1(c)(8). Those officers include a wide range of

immigration field officers and some other officials, but do not

include IJs. See id. § 287.5(e)(2). On its face, the regulation

governs only arresting officers not IJs. That makes sense as the

17 The BIA is not entitled to deference to its interpretation of the regulation. The Court does not owe Auer deference to the BIA's interpretation of another agency's regulation. See Nat'l Treasury Emps. Union v. Fed. Lab. Rels. Auth., 942 F.3d 1154, 1156 (D.C. Cir. 2019). At most, it owes the BIA "some deference." Beltrand-Alas v. Holder, 689 F.3d 90, 92 (1st Cir. 2012) (quoting McKenzie-Francisco v. Holder, 662 F.3d 584, 586 (1st Cir. 2011); but see Kisor v. Wilkie, 139 S. Ct. 2400, 2417 (2019) (emphasizing that the "basis for deference ebbs" when the regulation "'fall[s] within the scope of another agency's authority.'" (alteration in original) (quoting City of Arlington v. FCC, 569 U.S. 290, 309 (2013) (Breyer, J., concurring in part))). And when, as here, the text and structure of the regulation precludes the agency's interpretation, no deference is warranted. See Kisor, 139 S. Ct. 2415. Finally, the government did not argue for deference to the BIA's regulatory interpretation, and the Court need not consider deferring unless the government asks us to do so. HollyFrontier Cheyenne Ref., LLC v. Renewable Fuels Ass'n, 141 S. Ct. 2172, 2180 (2021).

- 69 - two are in very different positions. Arresting officers have

limited knowledge and should be inclined to err on the side of

caution. IJs in bond hearings have much more knowledge and the

benefit of arguments from both sides. Thus, the text does not

support the BIA's conclusion that it must supply the standard for

bond hearings.

Indeed, the regulation which actually governs bond

proceedings before IJs is different. 8 C.F.R. § 236.1(c)(8) states

that "[a]fter an initial custody determination" under 8 C.F.R.

§ 236.1(c)(8), a detainee may "request amelioration of the

conditions under which he or she may be released." In allowing

IJs to ameliorate -- or improve -– bond conditions, the regulation

necessarily states that IJs may deviate from the standards

governing arresting officers. See ameliorate, The American

Heritage Dictionary of the English Language 59 (3d ed. 1996) ("To

make or become better; to improve."); accord ameliorate, Webster's

New World Dictionary 43 (3d college ed. 1988).

The regulation also is different in its description of

the discretion IJs have in setting bond conditions. It authorizes

IJs "to exercise the authority in [8 U.S.C. § 1226(a)] . . . to

detain the [noncitizen] in custody, release the [noncitizen], and

determine the amount of bond, if any, under which the respondent

may be released." 8 C.F.R. § 236(d)(1) (emphasis added). The

- 70 - regulation thus delegates the Attorney General's broad discretion

to set bond conditions. And it expressly delegates all of the

Attorney General's authority. Cf. Seila L. LLC v. CFPB, 140 S.

Ct. 2183, 2191 (2020) (holding that the Executive Vesting Clause,

which vests "the Executive Power" confers "all of" the executive

power (emphasis added)). That wholesale delegation contrasts with

the conditional delegation provided to other immigration officials

in 8 C.F.R. § 236.1(c)(8). The BIA recognized that the INS

conferred different authority on IJs in bond hearings than on

arresting officers. Adeniji, 22 I. & N. Dec. at 1112. The BIA's

inconsistent treatment between the regulations governing IJs and

arresting officers wipes away those differences and renders as

mere surplusage the delegation to IJs of all of the Attorney

General's authority. The BIA's reasoning in Adeniji that the

regulation mandates its atextual reading is itself a violation of

the APA.

Our review is limited to reviewing the grounds the BIA

offered for departing from Patel. SEC v. Chenery Corp., 318 U.S.

80, 94 (1943). The only grounds the BIA offered in Adeniji was

that 8 C.F.R. § 236.1(c)(8) mandated its outcome. As I have shown,

that is simply not so. The BIA's decision in Adeniji was arbitrary

or capricious, and its continued imposition of the burden of proof

on noncitizens is thus unlawful.

- 71 - B.

Not only did the BIA misinterpret 8 C.F.R.

§ 236.1(c)(8), but the INS also acted arbitrarily and capriciously

when it adopted the regulation for two additional reasons.

First, in adopting the regulation, the INS "entirely

failed to consider an important aspect of the problem." State

Farm, 463 U.S. at 43. A key aspect of any detention regime is the

relative dangerousness and flight risk of different classes of

detainees. See, e.g., 18 U.S.C. § 3142(f)(1) (limiting pretrial

detention to criminal defendants charged with certain offenses),

(e)(2)-(3) (imposing rebuttable presumption of detention only for

certain recidivist defendants or defendants charged with certain

serious offenses). In my view Congress intended to continue the

customary view that detention authorizations must be carefully

limited. See United States v. Salerno, 481 U.S. 739, 755 (1987).

Indeed, Congress embraced that logic in the very statute at issue,

mandating detention for certain criminal noncitizens and allowing

all other detainees the opportunity for bond. 8 U.S.C. § 1226(a),

(c); see Maj. Op. 25. Nothing in the record suggests that the INS

considered the relative risks of different classes of detainees.

There are different classes of such detainees, including, for

example, those with no criminal records, to those with nonserious

- 72 - misdemeanor offenses, to those who have committed felonies some of

a serious nature, but not aggravated felonies.

A few examples from these cases illustrate the wide range

of risk different noncitizens pose. Doe was picked up after two

serious criminal charges: carrying a weapon-sized knife and

assault and battery. He did not even apply for asylum until after

he requested a bond hearing, though he had three years to do so

before his arrest.18 And while Hernández-Lara had not committed

criminal offenses in the United States, an Interpol red notice

said that she had done so in El Salvador and was a member of the

Pandilla 18 street gang. If the IJ erred in initially denying

bail based on that information, Hernández-Lara had an

administrative appeal available to her, which the majority's

opinion has pretermitted and necessarily concluded is inadequate

under the Due Process Clause. On the other side of the scale,

perhaps detainees who are veterans of the U.S. armed forces, and

about whom the government consequently has more information, are

themselves a special class.

Nor does the record reflect that the INS considered

relative risk or burden as to several distinct categories of

noncitizen as for which discretionary detention is authorized.

Indeed, his lead claim in his petition was about the policy 18

of the sheriff's department not to provide transportation to the hearings on his criminal charges in the local courts.

- 73 - The INS should have at least considered whether it was grouping

like and unlike categories of discretionary detainees together

under a blanket rule. Cf. Transactive Corp. v. United States, 91

F.3d 232, 237 (D.C. Cir. 1996) ("[A]n agency action is arbitrary

when the agency offered insufficient reasons for treating similar

situations differently."). Since it did not, the agency's adoption

of the rule was arbitrary or capricious.

Second, in adopting the regulation, the INS "offered an

explanation for its decision that runs counter to the evidence

before the agency." State Farm, 463 U.S. at 43. An agency must

"examine the relevant data and articulate a satisfactory

explanation for its action including a rational connection between

the facts found and the choice made." Id. (citation and internal

quotation marks omitted). The INS explained that it shifted the

presumption in Adeniji because of the INS's reliance on an

Inspector General report that "show[ed] that when [noncitizens]

are released from custody, nearly 90 percent abscond and are not

removed from the United States." 62 Fed. Reg at 10,323. The

report says nothing of the kind. See OIG Report; see also Holper,

The Beast of Burden in Immigration Bond Hearings, 67 Case W. Res.

L. Rev. 75, 90–91 n.56 (2016). Rather, the Inspector General

reported that the "INS was successful in deporting only about 11

percent of nondetained noncitizens after final orders [of removal]

- 74 - had been issued." OIG Report (emphasis added). That distinction

is crucial, as noncitizens who are subject to a final order of

removal pose a materially different flight risk than those who are

still contesting their removability. Compare OIG Report, with

U.S. Gov't Accountability Off., GAO-15-26, Alternatives to

Detention: Improved Data Collection and Analyses Needed to Better

Assess Program Effectiveness 30-31, 31 n.62 (2014),

https://www.gao.gov/assets/gao-15-26.pdf (showing at final

removal hearings 77% appearance rate for all non-detained

noncitizens and 95% appearance rate for noncitizens subject to

enhanced monitoring); see also Maj. Op. 36 (discussing lack of

Congressional findings about dangerousness or flight risk of

noncriminal noncitizens). Indeed, the government recognizes that

distinction: it evaluates detention differently before and after

a final order of removal has been entered. Compare 8 C.F.R.

§ 236.1, Adeniji, 22 I. & N. Dec. at 1113, and Matter of Guerra,

24 I. & N. Dec. 37, 40 (B.I.A. 2006), with 8 C.F.R. §§ 241.3-5 and

ICE, Performance Based Detention Standards, 2.2 Custody

Classification System, (rev. Dec. 2016)

https://www.ice.gov/doclib/detention-standards/2011/2-2.pdf. But

despite that obvious difference, the INS relied only on data about

absconding after entry of a final order of removal. In fact, the

inspector general's report was not at all about noncitizens

- 75 - detained pending hearings. Rather, it was about noncitizens

ordered removed who disappeared before they could be removed. The

data does not support the INS's decision because it was irrelevant

to a decision about noncitizens contesting removal. And nothing

else in the record justifies the agency's decision.

Given the agency's reference to irrelevant statistics

alone to support the rule, I find its "reasoning to be inscrutable

at best and, given the information available to the agency,

facially irrational." Marasco & Nesselbush, LLP v. Collins, No.

20-1397, 2021 WL 3012705, at *14 (1st Cir. July 16, 2021).

The INS acted arbitrarily and capriciously when it

adopted 8 C.F.R. § 236.1(c)(8). As adopting the regulation was

contrary to law, the BIA cannot rely on it to justify its departure

from Patel.

The government offers three arguments for why the BIA's

departure from Patel was not arbitrary or capricious. None are

persuasive.

The government first argues that Jennings v. Rodriguez,

138 S. Ct. 830 (2016), forecloses any attempt to require the

government to bear the burden of proof in § 1226(a) bond

proceedings. Jennings held that nothing in § 1226(a) requires

"periodic bond hearings every six months in which the Attorney

- 76 - General must prove by clear and convincing evidence that the

[noncitizen]'s continued detention is necessary." Id. at 847.

But nor does anything in the statute prohibit the government from

requiring itself to justify detention. The statute creates a range

of possible action, but it does not remove the agency's obligation

to provide a reasoned justification for a change in policy.

The government next argues that "the [BIA's] holding in

[Adeniji] represents a reasonable interpretation of Section

1226(a) and is entitled to deference under Chevron principles."

But the BIA did not interpret § 1226(a) to reach its decision in

Adeniji. It expressly recognized that the statute did not allocate

the burden of proof, and then rested its decision on 8 C.F.R. §

236.1(c)(8). Adeniji, 22 I. & N. Dec. at 1113. Chevron does not

apply when an agency's decision does not rest on its interpretation

of a statute. The government is not entitled to deference. See

also supra n.17.

Finally, the government argues that Adeniji does not

actually depart from prior decisions because it already had the

authority to determine whether and how to release noncitizens on

bond. Authority to act is necessary but not sufficient for an

agency to change course. See Fox Television, 556 U.S. at 515.

Even when an agency has broad authority, it must justify a change

- 77 - in how it exercises that authority. See New England Power

Generators Ass'n, Inc. v. FERC, 881 F.3d 202, 210 (D.C. Cir. 2018).

Because the BIA's allocation of the burden of proof rests

on arbitrary or capricious foundations, enforcing it against

noncitizens in discretionary bond proceedings is unlawful. 5

U.S.C. § 706(2)(A). The plaintiffs are entitled to a declaration

of that unlawfulness. See Grace v. Barr, 965 F.3d 883, 907-09

(D.C. Cir. 2020). Beyond such a declaration, the scope of any

injunctive relief should be left to the district court in the first

instance. Thus, I would vacate the injunction and judgment and

remand to the district court for further briefing on scope of the

remedy including as to whether, in light of our holding, the agency

should reinstitute proceedings.

I turn next to the majority's constitutional holding.

"[P]rior to reaching any constitutional questions,

federal courts must consider nonconstitutional grounds for

decision." Buchanan v. Maine, 469 F.3d 158, 172 (1st Cir. 2006)

(quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 99 (1981))

(quotation marks omitted). As we can resolve this case on APA

grounds, the majority's constitutional analysis is "unnecessary

- 78 - and, indeed, inappropriate." Marasco & Nesselbush, 2021 WL

3012705, at *19.

On top of general principles of judicial restraint and

constitutional avoidance, three considerations specifically

support avoiding a constitutional ruling here.

The effect of the majority's opinion is to arrogate to

the judiciary control over immigration bond procedures. In most

areas of law, we should be cautious in constitutionalizing agency

procedures. But in immigration, where Congressional powers are at

their apex and judicial powers are at their nadir, see, e.g., U.S.

Const. Art. I § 8, c. 18, Trump v. Hawaii, 138 S. Ct. 2392, 2418–

19 (2018), even more caution is warranted. There is, to be sure,

a role for courts to police constitutionally deficient immigration

procedures. See, e.g., Reno v. Flores, 507 U.S. 292, 306 (1993).

But we must also remember that "[p]olicies pertaining to the entry

of noncitizens and their right to remain here are peculiarly

concerned with the political conduct of government." Galvan v.

Press, 347 U.S. 522, 531 (1954). That must be so because "the

power to expel or exclude [noncitizens] [is] a fundamental

sovereign attribute exercised by the Government's political

departments largely immune from judicial control." Fiallo v. Bell,

430 U.S. 787, 792 (1977) (quoting Shaughnessy v. Mezei, 345 U.S.

206, 210 (1953)). In rushing to constitutional judgment in a field

- 79 - the Constitution primarily commits to the political branches, the

majority ignores these serious separation-of-powers concerns.

Deciding this case on constitutional due process

grounds, as the majority does, is premature and particularly ill-

advised given the subject matter. See Clinton v. Jones, 520 U.S.

681, 690 & n.11 (1997). "One of the major advantages of [judicial]

minimalism is that it grants a certain latitude to other branches

of government by allowing the democratic process room to adapt to

future developments, to produce mutually advantageous compromises,

and to add new information and perspectives to legal problems."

Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L.

Rev. 4, 19 (1996). In facially holding that a noncitizen may never

bear the burden of proof in an immigration bond hearing, see infra

Part IV.B, the majority shuns the benefits of further democratic

development. Cf. Hightower v. City of Boston, 693 F.3d 61, 76-78

(1st Cir. 2012) (disfavoring facial challenges).

Further, since this litigation began, a new presidential

administration has taken office and has begun to change immigration

policy. See, e.g., Memorandum from David Pekose, Acting Sec'y,

Dep't Homeland Sec., Review of and Interim Revision to Civil

Immigration Enforcement and Removal Policies and Priorities (Jan.

20, 2021) (announcing 100-day moratorium on most removal

proceedings),

- 80 - https://www.dhs.gov/sites/default/files/publications/21_0120_enf

orcement-memo_signed.pdf; Final Inadmissibility on Public Charge

Grounds; Implementation of Vacatur, 86 Fed. Reg. 14221 (Mar. 15,

2021) (rescinding public charge rule). If we sent these burden of

proof issues back to the BIA and required the agency to consider

a wider range of circumstances, the agency may well produce a more

nuanced set of bond standards. In short, we have the chance to

maximize politically accountable deliberation and policy making;

instead, the majority has chosen to make policy from the bench.

Finally, the majority's overreach will have serious

practical consequences. Our immigration system is taxed to its

limits.19 By shifting both the burden of production and persuasion

19 At the end of FY 2020, more than 1,250,000 immigration cases were pending, a 379% increase over the course of the decade. See Dep't of Justice, Exec. Office for Immigration Review, Adjudication Statistics: Pending Cases, New Cases, and Total Completions (April 19, 2021), https://www.justice.gov/eoir/page/file/1242166/download. That was true even though IJs in recent years have disposed of cases at historic volume. Dep't of Justice, Exec. Office for Immigration Review, New Cases and Total Completions - Historical (April 19, 2021), https://www.justice.gov/eoir/page/file/1139176/download. The number of bond proceedings has skyrocketed as well. See Dep't of Justice, Exec. Office for Immigration Review, Statistics Yearbook FY2018 at 9 (showing 49.3% increase in bond over five years). As apprehensions of undocumented persons at the southern border hit record highs, the burden on the immigration system is only likely to increase. See Dep't Homeland Sec., Customs & Border Protection, Southwest Land Border Encounters (last accessed Aug. 13, 2021) (revealing that encounters at the southern border in the first nine months of FY2021 already exceed highest level for past five full years), https://www.cbp.gov/newsroom/stats/southwest-

- 81 - and by raising the required quantum of proof to detain a noncitizen

in removal proceedings, the majority imposes additional strains on

overburdened immigration courts and officials.20 In my view, the

majority should have avoided unleashing those serious harms on our

immigration infrastructure.

The majority contends that constitutional avoidance is

unavailable to us in this case because deciding the APA claim in

favor of Hernández-Lara would afford her only partial relief. That

contention fails because equitable relief "must be 'no more

burdensome to the defendant than necessary to provide complete

relief to the plaintiffs.'" Sindi v. El-Moslimany, 896 F.3d 1, 31

(1st Cir. 2018) (quoting Madsen v. Women's Health Ctr., Inc., 512

U.S. 753 (1994)). If the government has acted unlawfully under

the APA, she is entitled only to the necessarily relief as to that

land-border-encounters; N. Miroff, July Was Busiest Month for Illegal Border Crossings in 21 Years, CBP Data Shows, Wash. Post (Aug. 12, 2021), https://www.washingtonpost.com/national/record- numbers-illegal-border-crossings/2021/08/12/e3d305e2-facd-11eb- b8dd-0e376fba55f2_story.html. 20 The majority "doubt[s] very much that shifting the burden will cause the government to expend more than minimal additional resources obtaining . . . records [from state and local authorities]." Maj. Op. 27. Nothing in the record supports that claim, and the government disputes it. Moreover, the government's superior knowledge about the practical implications of reallocating burdens in immigration bond proceedings reenforces my conclusion that the political branches should decide such questions in the first instance.

- 82 - injury. She is not entitled to the majority's adoption of the

broad rule she proposes. This is a basic tenant of remedial law.

If Hernández-Lara is entitled to any relief, that relief must be

limited only to relief not more burdensome than necessary. In

going beyond that relief, the majority again overreaches.21

This case demands judicial restraint. The majority opts

instead for judicial hubris.

Though the majority should not have reached the

constitutional question, it did. I will briefly state why I think

the majority's due process analysis is contrary to Supreme Court

precedent, contrary to precedent from other circuits, and wrong.

I do not take the occasion to expound on my views at great length.

The majority derives from the Due Process Clause a

categorical rule. It holds that in all discretionary immigration

bond cases the government must bear the burden of proving

dangerousness by clear and convincing evidence and flight risk by

the preponderance of the evidence. The Due Process Clause does

not support that broad conclusion.

Additionally, the BIA should be given the first opportunity 21

to address the quantum of proof issue, which was not raised in Adeniji. The posture taken in defense of this litigation does not reflect the considered decision making the APA requires.

- 83 - "In the exercise of its broad power over naturalization

and immigration, Congress regularly makes rules that would be

unacceptable if applied to citizens." Demore v. Kim, 538 U.S.

510, 521 (2003) (quoting Mathews v. Diaz, 426 U.S. 67, 79–80

(1976)) (quotation marks omitted). Congress and the Executive

have that broad authority because "any policy toward [noncitizens]

is vitally and intricately interwoven with contemporaneous

policies in regard to the conduct of foreign relations, the war

power, and the maintenance of a republican form of government."

Id. at 522 (quoting Diaz, 426 U.S. at 81 n.17). Thus, the Supreme

Court has permitted the government to detain noncitizens on a

categorical basis, while requiring individualized determinations

to detain citizens. Compare Demore, 538 U.S. at 531 (holding that

mandatory detention of noncitizens convicted of a wide variety of

offenses does not violate the Due Process Clause) and Carlson v.

Landon, 342 U.S. 524, 544 (1952) (holding that mandatory detention

of Communist noncitizens in removal proceedings does not violate

the Due Process Clause), with Salerno, 481 U.S. at 750-51

(permitting detention of criminal defendants charged with a

"serious crime" upon a showing that the defendant "presents an

identified and articulable threat to an individual or the

community"). If categorical detention of noncitizens without

individualized review is permissible under the Due Process Clause,

- 84 - it follows that detention of noncitizens under the government's

current regime -- which allows noncitizens to present

individualized evidence and rebut the presumption of detention –-

does not offend the Due Process Clause either.

The majority also errs in rejecting the current bail

detention scheme facially. A facial challenge to detention

procedures fails if the procedures are "adequate to authorize the

. . . detention of at least some [persons]." Salerno, 481 U.S. at

751 (quoting Schall v. Martin, 467 U.S. 253, 274 (1984) (alteration

in original)). And the current bond procedures provide robust

enough bond procedures to provide many noncitizens

constitutionally sufficient notice and opportunity to be heard.

Even under Mathews v. Eldridge balancing the government

may require at least some noncitizens to prove that they are

neither dangerous nor flight risks.22 424 U.S. 319, 335 (1976)

(looking to "the private interest that will be affected by the

official action," "the risk of an erroneous deprivation of such

interest through the procedures used, and the probable value, if

any, of additional or substitute procedural safeguards," and "the

Government's interest, including the function involved and the

22 In upholding the mandatory detention statute for noncitizens convicted of certain crimes (8 U.S.C. § 1226(c)) against a due process challenge, the Supreme Court did not apply Mathews. See Demore, 538 U.S. at 521-31. Thus, it is not clear that Mathews even governs in this context.

- 85 - fiscal and administrative burdens that the additional or

substitute procedural requirement would entail" to determine "the

specific dictates of due process").

First, while in general the private interest a person

has in avoiding detention is strong, a noncitizen's interest is

considerably more limited. "Detention during removal proceedings

is a constitutionally permissible part of that process." Demore,

538 U.S. at 531. The detainee's liberty interest is diminished by

the fact that he could voluntarily remove himself from the United

States at any time.23 Cf. DHS v. Thuraissigiam, 140 S. Ct. 1959,

1970 (2020) (holding that expedited removal proceedings did not

violate the Suspension Clause because asylum seeker could obtain

his liberty by consenting to removal). Thus, his real concern is

the ability to remain in the United States without being detained.24

Second, the majority's adding to and altering of the

already robust procedures would do little to improve the accuracy

of bond determinations. Under current procedures, noncitizens may

23The majority suggests that its rule will decrease the length of detentions. Maj. Op. 19. The majority's reasoning must be that shifting the burden to the government will prove to be too onerous to detain most noncitizens. This in turn will inevitably result in more noncitizens returning to their communities, despite the fact that they are dangerous to those communities or flight risks. 24 The majority's concern with where Hernández-Lara was detained –- "alongside criminal inmates at the Strafford County Jail," Maj. Op. 16 -- is irrelevant to our inquiry here.

- 86 - introduce evidence to show that they will likely appear at their

removal proceedings and are entitled to administrative and

judicial review of any adverse bond determination. Indeed, the

government is ill-positioned to have information beyond the

criminal record.

Third, the government has a strong interest in

effectively executing immigration law. "Further, it must weigh

heavily in the balance that control over matters of immigration is

a sovereign prerogative, largely within the control of the

executive and the legislature." Landon v. Plasencia, 459 U.S. 21,

34 (1982).

The current procedures provide detained noncitizens

constitutionally sufficient notice and opportunity to be heard.

Consider a noncitizen who is removable because he fled from a law

enforcement checkpoint in a car. See 8 U.S.C. § 1227(a)(2)(A)(iv);

18 U.S.C. § 758. That criminal record would not subject the

noncitizen to mandatory detention. See 8 U.S.C. § 1226(c). But

it would provide powerful evidence of his flight risk. Nothing in

the majority opinion explains why proceedings would be more

accurate under its broad rule, much less why any marginal accuracy

would outweigh the government's strong interests.

"It may be, of course, that in some circumstances

detention of [a noncitizen] would not pass constitutional muster.

- 87 - But the validity of those detentions must be determined on a case-

by-case basis." Schall, 467 U.S. at 273. The majority's

overreaching conflicts with controlling Supreme Court precedents.

Although the majority admits that it fashions its

analysis "broadly," it contends that "judicial and administrative

efficiency" justifies its holding. Maj. Op. 59. Like so many

other problems of constitutional law, however, the level of

generality at which we describe the problem is crucial to

determining its outcome. See, e.g., Michael H. v. Gerald D., 491

U.S. 110, 127 n.6 (1989). We need not determine the level of due

process required in every case through case-by-case adjudication;

however, where courts can meaningfully distinguish between

relevant categories, courts should not set standards at a greater

level of generality. Compare Addington v. Texas, 441 U.S. 418,

431-33 (1979) (setting across-the-board standard for civil

commitments on the basis of mental health given the inherent

"uncertainties of psychiatric diagnosis"), with Hamdi v. Rumsfeld,

542 U.S. 507, 533–34 (2004) (allowing rebuttable presumption of

detention for class of battlefield detainees given the limitations

on the government's ability to collect and present evidence of

dangerousness). Here, there are meaningful distinctions between

categories of noncitizens. To give several examples, the

government knows far more about -- and thus faces fewer

- 88 - administrative burdens in proving the dangerousness or flight risk

of -- veterans of the armed forces than noncitizens who have never

been lawfully admitted. It also knows far more about permanent

residents than those who overstay nonimmigrant visas. And, as the

government has powerfully argued, it knows little about those who

have recently entered the country illegally and been detained.

The government's relative knowledge matters because it directly

affects two of the key procedural due process considerations: risk

of erroneous deprivation and governmental burden. The majority's

analysis collapses those distinctions. In so doing, the majority

both fails to actually apply the Mathews framework it purports to

apply and reaches an overly broad holding.

"[T]his issue is one where careful judicial

consideration should not end with a three-judge panel, or even an

en banc sitting of a circuit court of appeals, but with the Supreme

Court of the United States." Allapattah Servs., Inc. v. Exxon

Corp., 362 F.3d 739, 741 (11th Cir. 2004) (Tjoflat, J., dissenting

from denial of petition for rehearing en banc).

The majority's constitutional holding, as I have

explained, "decide[s] an important federal question in a way that

conflicts with relevant decisions of [the Supreme] Court." Sup.

Ct. R. 10(c). The Supreme Court should step in to bring our court

- 89 - back into compliance with the Supreme Court's carefully considered

precedents. Such an intervention would not be mere error

correction: given the majority's facial holding, its error is not

case specific. It will reverberate in thousands of immigration

bond proceedings.

Additionally, the majority's decision conflicts with

those of our sister circuits on a question of national importance.

See Borbot v. Warden Hudson Cty. Corr. Facility, 906 F.3d 274 (3d

Cir. 2018) (holding that initial bond hearing in which noncitizen

carried the burden of proof satisfied due process, even when

noncitizen had been detained for over 14 months).

In Borbot, the Third Circuit held that the Due Process

Clause does not require the government to bear the burden of proof

in bond proceedings. 906 F.3d at 279. The majority argues that

"the issue presented here was not before the court in Borbot."

Maj. Op. 31. Not so. Borbot directly presented the question of

whether the government must bear the burden of proof. The Third

Circuit expressly ruled on that point of law, and it could not

have justified its decision without that ruling. Had the Borbot

court not rejected the petitioner's burden-of-proof argument, it

could not have denied him a new hearing under different procedures.

906 F.3d at 277. Borbot's discussion of the burden of proof thus

meets the textbook definition of a holding. See Garner, et al.,

- 90 - The Law of Judicial Precedent 46 (2016). And the majority's

holding squarely conflicts with it.

The majority also points to a subsequent Third Circuit

decision, German Santos v. Warden Pike County Correctional

Facility, 965 F.3d 203 (3d Cir. 2020), which it says "casts doubt"

on the argument that Borbot accepted the § 1226(a) procedures as

adequate. Maj. Op. 32. To the contrary, German Santos proves

that the majority has adopted an outlier view. German Santos is

a § 1226(c) mandatory detention case. It holds that a noncitizen

subject to mandatory detention is entitled to "a bond hearing, at

which the [g]overnment must justify his continued detention by

clear and convincing evidence" once "his detention has become

unreasonable." 965 F.3d at 206 (emphasis added). In holding that

the burden of proof should eventually shift to the government once

its interest in continued detention attenuates, German Santos and

similar cases, see, e.g., Velasco Lopez v. Decker, 978 F.3d 842,

855 (2d Cir. 2020), accept that the burden may lie at first with

the noncitizen. The majority's holding -- that the burden must

always lie with the government -- conflicts with those cases.

Further review of the majority's holding is warranted to

resolve this circuit split and to bring the First Circuit back

into compliance with controlling precedent.

- 91 - V.

I would vacate the injunction and judgment and remand to

the district court for further proceedings consistent with this

opinion. I respectfully dissent.

- 92 -