United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
B. SARIS Chief United States District Judge
John Doe, an eighteen-year-old undocumented alien born in El
Salvador, has been in U.S. Immigration and Customs
Enforcement (“ICE”) custody since August 20,
2018. He has a pending claim for asylum, alleging he fled
persecution by gang members at the age of fifteen. 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 Doe to prove his eligibility for release on bond
and declined to release him. The immigration judge found that
Doe failed to prove that he is not dangerous because he has a
pending charge in state court for assault and battery and a
Department of Homeland Security gang report indicated that
there is reasonable suspicion to believe he is affiliated
with MS-13. The gang report documents an alleged fight
between Doe and a rival gang member and instances in which
the police have seen Doe with other suspected MS-13 members.
Doe 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 in which the burden of
proof shifts 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). The Government urges that the
alien should have to prove that the misallocation
would have made a difference. This high burden 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, Doe has shown prejudice from the misallocation
of the burden of proof at his custody redetermination
hearing. Significantly, at a hearing on February 8, 2019 on
his pending assault and battery charge, the East Boston
District Court suppressed the victim's identification of
Doe as the assailant. The suppression of this identification
lowers the probative value of this pending charge in
demonstrating Doe's dangerousness. Even before this
suppression, Doe was released on his own recognizance by the
state criminal court. Although Doe was arrested separately
for carrying a knife larger than permitted by city ordinance,
the charge was dismissed prior to arraignment, and he has no
convictions on his record. With respect to the gang report,
as Doe'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). As a result of the suppression of the
identification, the Court concludes that a shift in the
burden of proof could have made a difference in the
immigration judge's dangerousness analysis.
raised multiple other constitutional issues concerning his
custody redetermination hearing which the Court does not
address because the proper allocation of the burden of proof
could well resolve this case. In addition, Doe has brought
two claims seeking an order requiring ICE to transport him to
hearings on his pending state court charge. Since Doe
initiated this lawsuit, ICE has made him available for
transport to his hearings. The Court therefore dismisses
these claims as moot.
foregoing reasons, the Government's motion to dismiss
(Dkt. No. 18) is ALLOWED as to Counts I and II and DENIED as
to Count III. The petition for writ of habeas corpus (Dkt.
No. 1) is ALLOWED as to Count III. The Court ORDERS that the
immigration court hold a new custody redetermination hearing
within seven calendar days. The immigration court shall
properly allocate the burden of proof and ...