# Rajesh v. Barr

> District Court, W.D. New York · October 29, 2019

URL: https://www.frixlaw.com/law-library/cases/10361381

## Case

- **Court:** District Court, W.D. New York
- **Decided:** October 29, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10361381

## How later opinions describe it (automated extraction)

- holding that challenges to “the extent of the Government’s detention authority” are not precluded by § 1226(e)
- 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”

## Opinion text

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
-1-
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
-10-
(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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10361381. Public record. Not legal advice.