Rajesh v. Barr

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

HAMAL RAJESH,

No. 6:19-cv-06415-MAT

Petitioner, DECISION AND ORDER

-vs-

WILLIAM P. BARR, Attorney General;

KEVIN K. McALEENAN, Acting Secretary,

Department of Homeland Security;

THOMAS FEELEY, Field Office Director

for Detention and Removal Buffalo

Field Office Bureau of Immigration

and Customs Enforcement Department of

Homeland Security; and JEFFREY

SEARLS, Facility Director, Buffalo

Federal Detention Facility,

Respondents.

I. Introduction

Proceeding pro se, Hamal Rajesh, a/k/a Rajesh Hamal (“Hamal”

or “Petitioner”) commenced this habeas proceeding pursuant to

28 U.S.C. § 2241 (“§ 2241”) against the named Respondents

(hereinafter, “the Government”) challenging his continued detention

in the custody of the United States Department of Homeland Security

(“DHS”), Immigration and Customs Enforcement (“ICE”). For the

reasons discussed below, the request for a writ of habeas corpus is

granted to the extent that the Government is ordered to afford a

new bond hearing to Hamal.

II. Factual Background

On June 13, 2018, at approximately 8:50 a.m., the San Diego

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Sector Border Patrol Communications operator relayed wia agency

radio of a sensor activation near a place commonly known to United

States Border Patrol Agents as “Goat Canyon,” an area about four

miles west of the San Ysidro, California, Port of Entry. A border

patrol agent responded and found four individuals lying in the

brush, one of whom was Hamal. Upon questioning, the agent

determined that each of the individuals was a Nepalese citizen and

none of them had immigration documents allowing them to legally

enter or remain in the United States. Hamal, along with the three

other individuals, was arrested.

Hamal requested an interview with an asylum officer, during

which he related that he attempted to enter the United States for

political reasons. He explained that his life was in danger because

he works for the Nepali Congress and the Maoist Party wants him to

join their party. He asserted that he was beaten once and received

verbal threats in Nepal.

On September 19, 2018, Hamal was served with a Notice to

Appear (“NTA”) alleging that he is not a citizen or national of the

United States, that he is a native of Nepal and a citizen of Nepal;

that he entered the United States at an unknown location on or

about June 13, 2018, without a valid entry document; and that he

was not admitted or paroled after inspection by an immigration

officer. He was charged with being subject to removal pursuant to

Immigration and Nationality Act (“INA”) § 212(a)(7)(A)(i)(I) and §

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212(a)(6)(A)(i). Also on September 19, 2018, DHS determined to

continue Hamal’s detention. Hamal requested review by an

immigration judge (“IJ”) of DHS’s custody determination.

On November 20, 2018, Hamal appeared for a master calendar

hearing before an IJ, which was adjourned to December 18, 2018, to

allow Hamal time to seek representation. Also on November 20,20l8,

Hamal appeared, with counsel, for a bond hearing before an IJ. On

November 2l, 2018, the IJ issued a check-the-box form denying

Hamal’s request for a change in custody status. On December 10,

2018, Hamal appealed the IJ’s bond decision to the Board of

Immigration Appeals (“BIA”). The IJ subsequently issued a written

bond memorandum on January 8, 2019, indicating that Hamal posed a

flight risk. See Docket No. 7-2, pp. 21-23 of 31. The IJ noted that

Hamal has no bank accounts, no real property, and no personal

property. The IJ found that Hamal lacks substantiated family ties

in the United States and that, according to Hamal’s testimony at

the bond hearing, he only recently met his named sponsor, a

relative and lawful permanent resident, at the Albany County Jail.

The IJ further observed that Hamal testified that he paid a

smuggler 700,000 Nepalese rupees (about $6,300) to enter the United

States, which is the equivalent of aiding and abetting a smuggler.

In light of these factors, the IJ found no amount of bond could

ensure Hamal’s appearance at future immigration proceedings.

On December 18, 2018, Hamal appeared for a master calendar

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hearing before an IJ, which was adjourned to January 29, 2019, for

an individual calendar hearing on the merits.

On December 28, 2018, Hamal filed an application for relief

from removal.

The individual calendar hearing scheduled for January 29,

2019, was adjourned to March 29, 2019, due to closure of the

immigration court. An IJ subsequently advanced the hearing to

February 19, 2019.

Hamal appeared with counsel before an IJ on February 19, 2019,

for an individual calendar hearing. At the conclusion of the

hearing, the IJ denied Hamal’s application for relief from removal

and ordered him removed from the United State to Nepal. On March 1,

2019, Hamal appealed the IJ’s decision to the BIA.

On May 30, 2019, the BIA issued a decision dismissing Hamal’s

bond appeal and affirming the IJ’s decision denying bond. On July

12, 2019, the BIA issued a decision dismissing Hamal’s appeal of

the removal order and affirming the IJ’s decision.

Hamal, through his retained attorney, filed a petition for

review (“PFR”), with the United States Court of Appeals for the

Second Circuit. Hamal v. Barr, 19-2467 (2d Cir. Aug. 9, 2019). He

also filed a motion for a stay of removal, which the Government

opposed, noting that absent a stay, it will not forbear from

removal after October 1, 2019. On September 11, 2019, a judge of

the Second Circuit issued an order granting a temporary stay

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pending review of the stay motion by a three-judge panel. See

Docket No. 39 in Hamal v. Barr, 19-2467 (2d Cir. Sept. 11, 2019).

Hamal’s appellate brief is due December 19, 2019.

Hamal filed his habeas petition (Docket No. 1) on June 4,

2019. The Government filed an answer and return (Docket No. 7) with

supporting exhibits (Docket Nos. 7-1 through 7-5) and memorandum of

law in oOpposition (Docket No. 8). Hamal filed a reply (Docket No.

9). The matter was transferred to the undersigned on October 1,

2019.

III. Scope of Review

Title 28 U.S.C. § 2241 grants this Court jurisdiction to hear

habeas corpus petitions from aliens claiming they are held “in

violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2241(c)(3); Zadvydas v. Davis, 533 U.S. 678,

687 (2001) (citing 28 U.S.C. § 2241(c)(3)). However, the REAL ID

Act of 2005, Pub. L. No. 109-13, § 106(a), 199 Stat. 231 (May 11,

2005) amended the Immigration and Nationality Act (“INA”) to

provide that petitions for review filed in the appropriate Courts

of Appeals were to be the “sole and exclusive means for judicial

review” of final orders of removal. Ruiz-Martinez v. Mukasey, 516

F.3d 102, 113 (2d Cir. 2008) (citing REAL ID Act § 106(c); 8 U.S.C.

§ 1252(a)(5)). In other words, the REAL ID Act “strips district

courts of jurisdiction to hear habeas petitions challenging final

orders of deportation. . . .” De Ping Wang v. Dep’t of Homeland

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Sec., 484 F.3d 615, 615-16 (2d Cir. 2007). District courts still

are empowered to grant relief under § 2241 to claims by aliens

under a final order of removal who allege that their post-removal-

period detention and supervision are unconstitutional. See

Zadvydas, 533 U.S. at 687-88; see also Hernandez v. Gonzales, 424

F.3d 42, 42–43 (1st Cir. 2005) (“The Real ID Act deprives the

district courts of habeas jurisdiction to review orders of removal,

. . . [but] those provisions were not intended to ‘preclude habeas

review over challenges to detention that are independent of

challenges to removal orders.’”) (quoting H.R. Cong. Rep.

No. 109-72, at *43 2873 (May 3, 2005)).

Although this Court has jurisdiction to decide statutory and

constitutional challenges to civil immigration detention, it does

not have jurisdiction to review the discretionary decisions of the

Attorney General. Zadvydas, 533 U.S. at 688 (citing 8 U.S.C.

§ 1252(a)(2)(B)(ii)) (“[N]o court shall have jurisdiction to review

. . . any other decision or action of the Attorney General . . .

the authority of which is specified under this subchapter to be in

the discretion of the Attorney General.”). “[W]hether the district

court has jurisdiction will turn on the substance of the relief

that a [petitioner] is seeking.” Delgado v. Quarantillo, 643 F.3d

52, 55 (2d Cir. 2011) (per curiam).

IV. Discussion

A. Overview of Petitioner’s Claims

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Because Hamal is proceeding pro se, this Court holds his

submissions “to less stringent standards than formal pleadings

drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972).

Hamal asserts that he is entitled to relief under Section 2241 on

the following grounds: (1) his custody redetermination hearing

before an IJ violated the Due Process Clause of the Fifth Amendment

because he bore the burden of proving that he was not a flight risk

or a danger to the community; (2) his detention, which commenced on

June 13, 2018, has become unreasonably prolonged, thereby entitling

him to another bond hearing at which the Government bears the

burden of proving that he is a flight risk or a danger to the

community; and (3) his detention violates the Eighth Amendment’s

Excessive Bail Clause.

For the reasons discussed below, the Court finds that as a

matter of due process, Hamal is entitled to a second bond hearing

as a matter of Due Process based on the length of his detention at

which the Government bears the burden of proof by clear and

convincing evidence. In light of this conclusion, the Court need

not consider his claims that his initial custody redetermination

hearing was procedurally flawed or that his detention violates the

Eighth Amendment’s Excessive Bail Clause.

B. Statutory Framework

The statute authorizing Hamal’s detention, 8 U.S.C. § 1226(a),

provides in pertinent part that “an alien may be arrested and

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detained pending a decision on whether the alien is to be removed

from the United States.” 8 U.S.C. § 1226(a). “[P]ending such

decision, the Attorney General--(1) may continue to detain the

arrested alien; and (2) may release the alien on– (A) bond of at

least $1,500 with security approved by, and containing conditions

prescribed by, the Attorney General; or (B) conditional parole. .

. .” Id. “In connection with § 1226(a), [DHS] promulgated

regulations setting out the process by which a non-criminal alien

may obtain release[,]” which “provide that, in order to obtain bond

or conditional parole, the ‘alien must demonstrate to the

satisfaction of the [decision maker] that such release would not

pose a danger to property or persons, and that the alien is likely

to appear for any future proceeding.’” Sopo v. U.S. Attorney Gen.,

825 F.3d 1199, 1208 (11th Cir. 2016) (quoting 8 C.F.R. §

1236.1(c)(8); second alteration in original), vacated on other

grounds, 890 F.3d 952 (11th Cir. 2018). The DHS district director

makes the initial custody determination; thereafter, the alien has

the right to appeal an adverse decision to an IJ, and then to the

BIA. 8 C.F.R. § 1236.1(d)(1), (3); id. § 1003.19(a), (f). If denied

release from custody, a § 1226(a) detainee may seek a custody

redetermination hearing upon a showing of changed circumstances. 8

C.F.R. § 1003.19(e).

While § 1226(a) is silent on the issues of which party bears

the burden of proof at a custody redetermination hearing and the

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quantum of evidence necessary to satisfy that burden, see 8 U.S.C.

§ 1226(a), the BIA has interpreted § 1226(a) to place “[t]he burden

. . . on the alien to show to the satisfaction of the [IJ] that he

or she merits release on bond.” In re Guerra, 24 I. & N. Dec. 37

(BIA 2006); accord In re Adeniji, 22 I. & N. Dec. 1102, 1116 (BIA

1999) (holding that “respondent must demonstrate that his release

would not pose a danger to property or persons, and that he is

likely to appear for any future proceedings”). The alien must show

that he is not “a threat to national security, a danger to the

community at large, likely to abscond, or otherwise a poor bail

risk.” Guerra, 24 I. & N. Dec. at 40. In cases issued following

Adeniji, the BIA has reaffirmed that the alien properly bears the

burden of proof; the quantum of proof is described simply as being

“to the satisfaction of” the IJ and BIA. E.g., In re Fatahi, 26 I.

& N. Dec. 791, 793 (BIA 2016) (“An alien who seeks a change in

custody status must establish to the satisfaction of the [IJ] and

the [BIA] that he is not ‘a threat to national security, a danger

to the community at large, likely to abscond, or otherwise a poor

bail risk.’”) (quoting Guerra, 24 I. & N. Dec. at 40).

The BIA is the only forum from which an alien may seek

reconsideration of the substance of an IJ’s discretionary bond

determination. See 8 C.F.R. §§ 1003.19(f), 1003.38, 1236.1(d)(3);

see also Demore v. Kim, 538 U.S. 510, 516–17 (2003) (noting that 8

U.S.C. § 1226(e) bars federal court review of a “discretionary

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judgment” or a “decision” of the Attorney General) (citing 8 U.S.C.

§ 1226(e) (stating that “[n]o court may set aside any action or

decision by [immigration officials] under this section regarding

the detention or release of any alien or the grant, revocation, or

denial of bond or parole”)). “What § 1226(e) does not bar, however,

are constitutional challenges to the immigration bail system.”

Pensamiento v. McDonald, 315 F. Supp.3d 684, 688–89 (D. Mass. 2018)

(citing Jennings v. Rodriguez, ___ U.S. ____, 138 S. Ct. 830, 841,

200 L.Ed.2d 122 (2018) (holding that challenges to “the extent of

the Government’s detention authority” are not precluded by §

1226(e)); Demore, 538 U.S. at 517 (“Section 1226(e) contains no

explicit provision barring habeas review, and we think that its

clear text does not bar respondent’s constitutional challenge to

the legislation authorizing his detention without bail [under §

1226(c)]. . . .”); other citations omitted), appeal withdrawn sub

nom. Pensamiento v. Moniz, 18-1691 (1st Cir. Dec. 26, 2018).

Here, Hamal is not challenging the IJ’s discretionary decision

to keep him in detention. Instead, he is arguing that the

immigration bond system, in which aliens detained pursuant to §

1226(a) must bear the burden of proving they are not dangerous and

are not flight risks, violates the Due Process Clause of the Fifth

Amendment. “This type of constitutional claim ‘falls outside of the

scope of § 1226(e)’ because it is not a matter of the IJ’s

discretionary judgment.” Pensamiento, 315 F. Supp.3d at 689

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(quoting Jennings, 138 S. Ct. at 841); accord Aparicio-Villatoro

v. Barr, No. 6:19-CV-06294-MAT, 2019 WL 3859013, at *5 (W.D.N.Y.

Aug. 16, 2019); Singh v. Barr, No. 18-CV-2741-GPC-MSB, ___ F.

Supp.3d ___, 2019 WL 4168901, at *8 (S.D. Cal. Sept. 3, 2019)

(“Singh’s challenge . . . is plainly legal in nature; he contests

that his prior hearing was legally inadequate because it was not

conducted under procedures required by Due Process—i.e., with the

burden of proof on the government.”).

C. Constitutional Framework

The Due Process Clause of the Fifth Amendment forbids the

Government from “depriv[ing]” any “person . . . of . . . liberty .

. . without due process of law.” U.S. CONST., amend. V. The Supreme

Court has emphasized that “[f]reedom from imprisonment—from

government custody, detention, or other forms of physical

restraint—lies at the heart of the liberty that Clause protects.”

Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Longstanding Supreme

Court precedent has underscored the principle that “civil

commitment for any purpose constitutes a significant deprivation of

liberty that requires due process protection.” Addington v. Texas,

441 U.S. 418, 425 (1979). That an individual may not be a United

States citizen or may not be in this country legally does not

divest them of all protections enshrined in the Due Process Clause.

See Zadvydas, 533 U.S. at 693 (“[T]he Due Process Clause applies to

all ‘persons’ within the United States, including aliens, whether

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their presence here is lawful, unlawful, temporary, or

permanent.”); Reno v. Flores, 507 U.S. 292, 306 (1993) (“It is well

established that the Fifth Amendment entitles aliens to due process

of law in deportation proceedings.”). The question that has

continued to vex courts is the nature of the process due, for the

Supreme Court “has recognized detention during deportation

proceedings as a constitutionally valid aspect of the deportation

process.” Demore, 538 U.S. at 523 (citations omitted).

In the context of a § 1226(a) custody hearing, the Ninth

Circuit has held that the Constitution mandates placing the burden

of proof on the Government to show ineligibility for bail by clear

and convincing evidence. Singh v. Holder, 638 F.3d 1196, 1203 (9th

Cir. 2011). The Ninth Circuit explained that “even where prolonged

detention is permissible, due process requires ‘adequate procedural

protections’ to ensure that the government’s asserted justification

for physical confinement ‘outweighs the individual’s

constitutionally protected interest in avoiding physical

restraint.’” Id. (quotations omitted). Several district courts have

held that Singh’s due process analysis survived Jennings since the

Supreme Court expressly declined to address the constitutional

question.1 E.g., Cortez v. Sessions, 318 F. Supp. 3d 1134, 1146–47

1

In Jennings, the class of habeas petitioners had originally argued that,

absent a requirement for periodic bond hearings, 8 U.S.C. §§ 1225(b), 1226(a),

and 1226(c) would violate the Due Process Clause. See Jennings, 138 S. Ct. at

839. Instead of addressing the constitutional argument, however, the Ninth

Circuit employed the canon of constitutional avoidance and interpreted § 1226(a)

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(N.D. Cal. 2018) (“The [Jennings] Court did not engage in any

discussion of the specific evidentiary standard applicable to bond

hearings, and there is no indication that the Court was reversing

the Ninth Circuit as to that particular issue. Accordingly, the

court declines to find that Jennings reversed the clear and

convincing evidence standard announced in Singh or later Ninth

Circuit cases relying on Singh’s reasoning.”), appeal dismissed,

No. 18-15976, 2018 WL 4173027 (9th Cir. July 25, 2018).2

In Lora v. Shanahan, 804 F.3d 601, 616 (2d Cir. 2015),

vacated, 138 S. Ct. 1260 (2018), the Second Circuit relied on

Singh’s constitutional avoidance analysis to hold, in the context

of a criminal alien detained under § 1226(c), that due process

requires a bail hearing within six months of the alien being taken

into custody at which the Government must establish by clear and

to require “periodic bond hearings every six months in which the Attorney General

must prove by clear and convincing evidence that the alien’s continued detention

is necessary.” 138 S. Ct. at 847. But the Supreme Court held that “[n]othing in

§ 1226(a)’s text . . . even remotely supports the imposition of either of those

requirements.” Id. The Supreme Court reversed and remanded to the Ninth Circuit

with instructions to consider the constitutional questions on the merits. Id. at

851. The Ninth Circuit, in turn, remanded the case to the district court without

reaching the merits of the constitutional arguments. Rodriguez v. Marin, 909 F.3d

252 (9th Cir. 2018), on remand to Rodriguez v. Robbins, Case No.

07-cv-3239-TJH-RNB (C.D. Cal.).

2

See also D. v. Sec’y of Homeland Sec., No. 0:18-CV-1557-WMW-KMM, 2019 WL

1905848, at *6 (D. Minn. Feb. 11, 2019) (“‘[B]ecause the Jennings majority and

dissent were focused on whether the statutes required bond hearings, declining

to reach the constitutional question at issue here, the Court is unpersuaded that

Jennings has any bearing on the appropriate procedures consistent with due

process.’”) (quoting Hernandez v. Decker, No. 18 Civ. 5026 (ALC), 2018 WL

3579108, at *11 (S.D.N.Y. July 25, 2018)), report and recommendation adopted as

modified sub nom. Bolus A. D. v. Sec’y of Homeland Sec., 376 F. Supp.3d 959 (D.

Minn. 2019).

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convincing evidence that the alien poses a risk of flight or a

danger to the community. After Lora was decided, the Supreme Court

granted certiorari in Rodriguez v. Jennings, 804 F.3d 1060 (9th

Cir. 2015), and rejected the Ninth Circuit’s constitutional

avoidance analysis on which the Second Circuit had relied in

interpreting § 1226(c). Accordingly, the Supreme Court vacated Lora

and remanded it for further consideration in light of Jennings v.

Rodriguez, 138 S. Ct. 830, supra.

On remand in Lora, the Second Circuit dismissed the appeal as

moot because, in the interim, the petitioner had been released on

bond. Lora v. Shanahan, 719 F. App’x 79 (2d Cir. 2018). Thus, the

Second Circuit did not have occasion to revisit the constitutional

question in Lora. Some district courts in this Circuit have held

that while Lora is no longer precedential authority, it still

carries “significant persuasive weight,” v. Decker, No. 18 Civ.

2447 (AJN), 2018 WL 2357266, at *6 (S.D.N.Y. May 23, 2018) (citing

Brown v. Kelly, 609 F.3d 467, 476-77 (2d Cir. 2010)), on the

questions of the proper burden and quantum of proof at immigration

bond hearings.

A number of district courts have taken up the question left

open by the Supreme Court in Jennings, and “there has emerged a

consensus view that where, as here, the government seeks to detain

an alien pending removal proceedings, it bears the burden of

proving that such detention is justified.” Darko v. Sessions, 342

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F. Supp.3d 429, 434–36 (S.D.N.Y. 2018) (citing Linares Martinez v.

Decker, No. 18 Civ. 6527 (JMF), 2018 WL 5023946, at *32 (S.D.N.Y.

Oct. 17, 2018); Sajous, 2018 WL 2357266, at *12; Hernandez, 2018 WL

3579108, at *10; Frederic v. Edwards, No. 18 Civ. 5540(AT), Docket

No. 13 (S.D.N.Y. July 19, 2018); Pensamiento, 315 F. Supp.3d at

692; Figueroa v. McDonald, No. 18-CV-10097 (PBS), ___ F. Supp.3d

____, 2018 WL 2209217, at *5 (D. Mass. May 14, 2018); Frantz C. v.

Shanahan, No. CV 18-2043 (JLL), 2018 WL 3302998, at *3 (D. N.J.

July 5, 2018); Portillo v. Hott, 322 F. Supp.3d 698, 709 n.9 (E.D.

Va. 2018); Cortez, 318 F. Supp.3d at 1145-46; see also D. v. Sec’y

of Homeland Sec., 2019 WL 1905848, at *6; Diaz-Ceja v. McAleenan,

No. 19-CV-00824-NYW, 2019 WL 2774211, at *10 (D. Colo. July 2,

2019).

In concluding that allocating the burden to a noncriminal

alien to prove that he should be released on bond under § 1226(a)

violates due process, a number of these courts have looked for

guidance to the Supreme Court’s precedent on civil commitment and

detention. E.g., Darko, 342 F. Supp.3d at 434 (citing Addington,

441 U.S. at 425 (“In considering what standard should govern in a

civil commitment proceeding, we must assess 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. Moreover, we must

be mindful that the function of legal process is to minimize the

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risk of erroneous decisions.”); other citations omitted). The

Government clearly has legitimate interests in both public safety

and securing a noncitizen’s appearance at future immigration

proceedings. However, the Court cannot discern any legitimate

Government interest, beyond administrative convenience, in

detaining noncitizens generally while their immigration proceedings

are pending and no final removal order has been issued. See

Addington, 441 U.S. at 426 (“[T]he State has no interest in

confining individuals involuntarily if they are not mentally ill or

if they do not pose some danger to themselves or others. Since the

preponderance standard creates the risk of increasing the number of

individuals erroneously committed, it is at least unclear to what

extent, if any, the state’s interests are furthered by using a

preponderance standard in such commitment proceedings.”). The Court

agrees with the district court cases holding that allocating the

burden to a noncriminal alien to prove he should be released on

bond under § 1226(a) violates due process because it asks “[t]he

individual . . . to share equally with society the risk of error

when the possible injury to the individual is significantly greater

than any possible harm to the [Government].” 441 U.S. at 427. See

Darko, 342 F. Supp.3d at 435 (“[G]iven the important constitutional

interests at stake, and the risk of harm in the event of error, it

is appropriate to require the government to bear the burden,

particularly in light of long-established Supreme Court precedent

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affecting the deprivation of individual liberty[.]”) (citing

Linares Martinez, 2018 WL 5023946 at *2); Diaz-Ceja, 2019 WL

2774211, at *10 (similar) (citing Addington, 441 U.S. at 427;

Singh, 638 F.3d at 1203; other citations omitted).

As to the applicable burden of proof, most courts that have

decided the issue have concluded that Government must supply clear

and convincing evidence that the alien is a flight risk or danger

to society. See Darko, 342 F. Supp.3d at 436 (stating that “the

overwhelming majority of courts to have decided the issue” utilized

the “clear and convincing” standard) (collecting cases); but see

Diaz-Ceja, 2019 WL 2774211, at *11 (finding that the appropriate

standards are ones that mirror the Bail Reform Act, i.e., the

government must prove risk of flight by a preponderance of the

evidence, and it must prove dangerousness to any other person or to

the community by clear and convincing evidence) (internal and other

citations omitted). As noted above, Singh and Lora required the

Government to meet its burden by clear and convincing evidence, a

conclusion followed by the vast majority of the district courts—and

all the district courts in this Circuit—that have decided this

issue.

The Court joins with these courts and concludes that the Fifth

Amendment’s Due Process Clause requires the Government to bear the

burden of proving, by clear and convincing evidence, that detention

is justified at a bond hearing under § 1226(a). Darko, 342 F.

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Supp.3d at 436 (citations omitted).

Having found a constitutional error, the Court next examines

whether such error was prejudicial to Hamal. Brevil v. Jones, No.

17 CV 1529-LTS-GWG, 2018 WL 5993731, at *5 (S.D.N.Y. Nov. 14, 2018)

(citing Singh, 638 F.3d at 1205 (analyzing whether IJ’s application

of an erroneous evidentiary burden at bond hearing under § 1226(a)

prejudiced alien detainee); Garcia-Villeda v. Mukasey, 531 F.3d

141, 149 (2d Cir. 2008) (“Parties claiming denial of due process in

immigration cases must, in order to prevail, allege some cognizable

prejudice fairly attributable to the challenged process.”)

(internal quotations omitted)); Linares Martinez, 2018 WL 5023946,

at *5 (rejecting government’s argument that alien detained under §

1226(a) was not prejudiced by any due process violation at first

bond hearing; “the IJ plainly could have found that the single set

of charges—now reduced to misdemeanors—was not enough to show, by

clear-and-convincing evidence, that Linares’s release would pose a

danger”); but see Darko, 342 F. Supp.3d at 436 (finding due process

error due to IJ’s imposition of burden of proof on alien detained

under § 1226(a); granting habeas relief and ordering second

individualized bond hearing without undertaking analysis of whether

alien was prejudiced by erroneous burden of proof at first bond

hearing).

As an initial matter, the Court observes that BIA precedent

directs IJs to consider the following factors in determining

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whether an immigrant is a flight risk or poses a danger to the

community: (1) whether the immigrant has a fixed address in the

United States; (2) the immigrant’s length of residence in the

United States; (3) the immigrant’s family ties in the United

States, (4) the immigrant’s employment history, (5) the immigrant’s

record of appearance in court, (6) the immigrant’s criminal record,

including the extensiveness of criminal activity, the recency of

such activity, and the seriousness of the offenses, (7) the

immigrant’s history of immigration violations; (8) any attempts by

the immigrant to flee prosecution or otherwise escape from

authorities; and (9) the immigrant’s manner of entry to the United

States. Matter of Guerra, 20 I & N Dec. at 40.

Here, Hamal has not resided in the United States, as he was

apprehended upon attempting this country. However, has a relative

who is lawful permanent resident and who is willing to sponsor him.

While he does not have any employment history in the United States,

he worked for the Nepali Congress until he decided to flee Nepal,

citing fear of persecution by the Maoist Party. Hamal has not

missed any immigration court appearances and has no criminal

record. His entry into this country was illegal, but he has not

attempted to escape DHS custody or avoid prosecution.

The IJ found that Hamal poses a flight risk because,

notwithstanding the “various support letters submitted on [his]

behalf,” he “has no bank accounts, no real property, and no

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personal property,” he “has a lack of substantiated family ties”

since he “only recently met his named sponsor at the Albany County

Jail,” and he “paid a smuggler 700,000 Nepalese Rupees to enter the

United States, which is the equivalent of aiding and abetting a

smuggler.” Docket No. 7-2, p. 22 of 31 (footnote omitted). The IJ

then summarily concluded that there was “no amount of bond that

could ensure [Hamal’s] appearance in future proceedings.” Id., p.

23 of 31.

Comparing Hamal’s circumstances against the Guerra factors,

his case for release on bond presents both positive and negative

equities. While DHS opposed the bond request, there is no

indication that counsel actually submitted any evidence on any of

the Guerra factors in opposition to Hamal’s request to be released

from custody. Thus, this is a situation where “the standard of

proof could well have affected the outcome of the bond hearing.”

Singh, 638 F.3d at 1205. Because the Court “cannot conclude that

the clear and convincing evidence standard would not have affected

the outcome of the bond hearing[,]” Singh, 638 F.3d at 1205, the

Court finds that the standard of proof applied at the bond hearing

prejudiced Hamal. Id. Habeas relief accordingly is warranted to the

extent that Hamal must be afforded a new bond hearing before an IJ

at which the Government must adduce clear and convincing evidence

that he is a flight risk (there is no suggestion in the record that

Hamal was or is a danger to the community).

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V. Conclusion

For the foregoing reasons, the Petition for a writ of habeas

corpus is granted to the extent that, within ten days of the date

of entry of this Decision and Order, the Government shall bring

Hamal before an IJ for an individualized bond hearing. At that

hearing, the Government shall bear the burden of proving, by clear

and convincing evidence, that he is a flight risk. If the

Government fails to provide Hamal with such a bond hearing within

ten days, the Government shall immediately release him. If the

Government holds the required bond hearing but fails to prove, by

clear and convincing evidence, that Hamal is a flight risk, the

Government must release him on bail with appropriate conditions.

The Government is further ordered to provide a status report to

this Court within five days following the completion of the bond

hearing. The Clerk of Court is directed to close this case.

SO ORDERED.

HONORABLE MICHAEL A. TELESCA

United States District Judge

Dated: October , 2019

Rochester, New York.

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