United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
B. Saris Chief United States District Judge
Cristian Diaz Ortiz, an undocumented alien born in El
Salvador with no criminal record, has been in U.S.
Immigration and Customs Enforcement ("ICE") custody
since August 20, 2018. ICE is detaining him pursuant to 8
U.S.C. § 1226(a) while his removal proceedings are
pending. At his custody redetermination hearing, the
immigration judge placed the burden on him to prove his
eligibility for release on bond and declined to release him.
The immigration judge found that he failed to prove that he
is not dangerous because a Department of Homeland Security
gang report indicated that he is affiliated with MS-13. The
gang report documents instances in which the police have seen
Diaz Ortiz with other suspected MS-13 members. The
immigration judge also found that he failed to prove he is
not a flight risk because his claims for asylum and
withholding of removal are weak. Diaz Ortiz challenges the
allocation of the burden of proof at his custody
redetermination hearing under the Due Process Clause. The
Government has moved to dismiss the habeas petition under
Federal Rule of Civil Procedure 12(b)(6) for failure to state
Pensamiento v. McDonald, this Court held that due
process requires that the Government bear the burden to prove
an alien's dangerousness or flight risk at a §
1226(a) custody redetermination hearing. 315 F.Supp.3d 684,
692 (D. Mass. 2018). The Government argues that the Third
Circuit's recent decision in Borbot v. Warden Hudson
County Correctional Facility, 906 F.3d 274 (3d Cir.
2018), throws this holding into doubt. It does not.
Borbot involved an alien detained under §
1226(a) who sought a second custody redetermination hearing
at which the Government bore the burden of proof after he had
been detained for more than a year during removal
proceedings. Id. at 276-77. The Third Circuit
rejected the alien's habeas petition on the basis that
the duration of detention did not create a due process
problem that required a new hearing and a shifting of the
burden of proof to the Government. Id. at 280.
Because the alien did "not challenge the adequacy of his
initial bond hearing," the court did not directly
address whether due process requires that the Government bear
the burden of proof at an initial § 1226(a) custody
redetermination hearing. Id. at 276-77.
Court has held that an alien has to show that the
misallocation of the burden of proof could have affected the
outcome of the custody redetermination hearing.
Pensamiento, 315 F.Supp.3d at 693; see also
Singh v. Holder, 638 F.3d 1196, 1205 (9th Cir. 2011)
(applying the same standard). A higher burden requiring the
alien to prove the misallocation would have made a difference
is inappropriate in the context of claims of improper
allocations of the burden of proof in immigration bond
hearings. The interest at stake, namely freedom from physical
restraint, "lies at the heart of the liberty that [the
Due Process] Clause protects." Zadvydas v.
Davis, 533 U.S. 678, 690 (2001). And if the immigration
judge denies bond, the alien may remain in detention for
months and possibly years. See Jennings v.
Rodriguez, 138 S.Ct. 830, 860 (2018) (Breyer, J.,
dissenting) (stating that class members had been detained for
periods ranging from six months to 831 days while pursuing
this standard, Diaz Ortiz has shown prejudice from the
misallocation of the burden of proof at his custody
redetermination hearing. The primary evidence the Government
submitted to show his dangerousness was the gang report.
However, as Diaz Ortiz's expert explains, a federal
regulation permits the inclusion in the gang database of
information on suspects for whom there is only
"reasonable suspicion" of criminal conduct or
activity. 28 C.F.R. § 23.20. "Reasonable
suspicion" is not tantamount to probable cause. See
Alabama v. White, 496 U.S. 325, 330 (1990). Diaz Ortiz
points out that the report labels him as a verified MS-13
member based almost exclusively on his associations with
other suspected MS-13 members, that there is no evidence he
wore the gang paraphernalia or engaged in gang activities,
and that he lacks any criminal record. The Court
"concludes that a shift in the burden of proof could
have made a difference in the dangerousness analysis.
misallocation of the burden of proof could also have affected
the immigration judge's decision on flight risk. The
immigration judge acknowledged Diaz Ortiz's
"existing family ties, employment, and prior history
attending various court proceedings" but determined that
the weakness of Diaz Ortiz's claims for relief from
removal made him a flight risk. Dkt. No. 3-1 at 4-5. If the
burden were on the Government, the immigration judge could
have weighed these factors differently and found Diaz Ortiz
not to be a flight risk and/or imposed a combination of
conditions of release (like GPS monitoring) to ensure his
Ortiz has raised multiple other constitutional issues which
the Court does not address because the proper allocation of
the burden of proof could well resolve this case.
foregoing reasons, the Government's motion to dismiss
(Dkt. No. 14) is DENIED. The petition for
writ of habeas corpus (Dkt. No. 1) is
ALLOWED. The Court ORDERS
that the immigration court hold a new custody ...