United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Patti 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 first custody redetermination hearing, the
immigration judge placed the burden on him to prove his
eligibility for release on bond and declined to release him.
Diaz Ortiz filed a petition for writ of habeas corpus in this
Court alleging that this allocation of the burden of proof
violated his due process rights. Following its earlier
decision in Pensamiento v. McDonald, 315 F.Supp.3d
684 (D. Mass. 2018), appeal dismissed, No. 18-1691
(1st Cir. Dec. 26, 2018), the Court agreed. On January 29,
2019, the Court ordered the Government to provide Diaz Ortiz
with a new custody redetermination hearing at which it bore
the burden of proof to show that he is dangerous or a flight
risk (“the January 29 order”). The Government
filed a notice of appeal. At Diaz Ortiz's second hearing,
a different immigration judge again declined to release him.
Diaz Ortiz now moves to enforce the January 29 order, arguing
that the immigration judge at his second hearing also failed
to put the burden of proof on the Government.
Court has jurisdiction to address Diaz Ortiz's motion.
The January 29 order granted a conditional writ of habeas
corpus that gave the Government a chance to cure the
constitutional defect in Diaz Ortiz's detention. See
Herrera v. Collins, 506 U.S. 390, 403 (1993). A district
court retains jurisdiction to “review compliance with
its earlier order conditionally granting habeas
relief.” Leonardo v. Crawford, 646 F.3d 1157,
1161 (9th Cir. 2011) (collecting cases). The fact that the
Government has appealed the January 29 order does not deprive
the Court of jurisdiction because Diaz Ortiz seeks only
enforcement of an already issued order. See,
e.g., Blue Cross & Blue Shield Ass'n v. Am.
Express Co., 467 F.3d 634, 638 (7th Cir. 2006)
(“[T]he district court may enforce its judgment while
an appeal to test that judgment's validity
proceeds.”); In re Padilla, 222 F.3d 1184,
1190 (9th Cir. 2000) (“Absent a stay or supersedeas,
the trial court also retains jurisdiction to implement or
enforce the judgment or order . . . .”).
said, the Court's authority in enforcing its order is
limited. Diaz Ortiz must show the immigration judge failed to
place the burden of proof on the Government as required by
the January 29 order. To make this showing, he can either
point to the language of the immigration judge's opinion
or demonstrate that “the evidence itself could not --
as a matter of law --have supported” the immigration
judge's decision to deny bond. Hechavarria v.
Whitaker, 358 F.Supp.3d 227, 240 (W.D.N.Y. 2019).
immigration judge's opinion demonstrates that he placed
the burden of proof by a preponderance of the evidence on the
Government. Although he noted in a footnote that “in
most bond proceedings, the respondent would have the burden
of proving that he or she should be released,
” Dkt. No. 41-1 at 3 n.1, he referenced the
January 29 order, explained that the Government bore the
burden of proof, and stated his conclusion that the
Government had met its burden. Diaz Ortiz contends that the
immigration judge effectively created a presumption that the
Government's evidence of his gang membership was true and
persuasive by failing to acknowledge its flaws. The opinion
does not support this interpretation: the immigration judge
merely explained that he found that Government's evidence
to be persuasive. Nor does the immigration judge's
citations to Board of Immigration Appeals (“BIA”)
decisions that put the burden of proof on the alien
demonstrate that he misallocated the burden of proof. BIA
precedent requires that the burden of proof fall on the
alien, In re Guerra, 24 I. & N. Dec. 37, 40 (BIA
2006), so all its decisions place the burden on the alien.
primary evidence the Government submitted to show Diaz
Ortiz's dangerousness was (1) a gang report that
documented his frequent associations with others suspected of
being MS-13 gang members and (2) his possession of a padlock
and chain in his backpack, a weapon commonly used by MS-13
members. Although the gang report contains hearsay evidence,
the immigration judge may rely on the opinion of law
enforcement experts that Diaz Ortiz appears to be an MS-13
member if based on reliable information. Given the violent
nature of the MS-13 gang, such evidence was sufficient to
allow the immigration judge to find by a preponderance of the
evidence that Diaz Ortiz is a danger to the community.
Ortiz seeks to undermine the probative value of the gang
report, pointing out that 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.
However, multiple law enforcement agencies (Department of
Homeland Security, FBI, Boston Police Department/Boston
Regional Intelligence Center, and Boston School Police) had
the opinion that he was a gang member or affiliate because he
was carrying a common MS-13 gang weapon in his backpack,
frequented areas notorious for MS-13 gang activity, and had
contacts with known gang members/associates.
Ortiz also emphasizes that the immigration judge did not
consider the statements from community members, neighbors,
and family he submitted, but an immigration judge “can
consider all the evidence without directly addressing in his
written decision every piece of evidence submitted by a
party.” NRLB v. Beverly Enters.-Mass., Inc.,
174 F.3d 13, 26 (1st Cir. 1999). That a different immigration
judge reached the opposite conclusion with respect to John
Doe, who was arrested with Diaz Ortiz, does not demonstrate
that this immigration judge applied the wrong burden of
immigration judge's determination that Diaz Ortiz is
dangerous obviated any need for him to consider conditions of
release. See Matter of Urena, 25 I. & N. Dec.
140, 141 (BIA 2009) (“Dangerous aliens are properly
detained without bond.”). Furthermore, the finding of
dangerousness renders irrelevant any complaints Diaz Ortiz
raises about the immigration judge's consideration of his
flight risk. See id. (“Only if an alien
demonstrates that he does not pose a danger to the community
should an Immigration Judge continue to a determination
regarding the extent of flight risk posed by the
Diaz Ortiz disagrees with the immigration judge's
weighing of the evidence and exercise of discretion with
respect to dangerousness. The Court does not have
jurisdiction to hear such a challenge. See 8 U.S.C.
§ 1226(e); see also Demore v. Kim, 538
U.S. 510, 516 (2003) (explaining that 8 U.S.C. § 1226(e)
bars an alien's challenge to “a discretionary
judgment by the Attorney General or a decision that the
Attorney General has made regarding his detention or
release” (internal quotation marks omitted));
Pensamiento, 315 F.Supp.3d at 688 (“Congress
has eliminated judicial review of discretionary custody
determinations.”). And for the reasons just described,
the Court cannot say that “the exercise of discretion
in denying bond was so arbitrary that it would offend
fundamental tenets of due process.” Pratt v.
Doll, No. 3:17-cv-1020, 2019 WL 722578, at *4 (M.D. Pa.
Feb. 20, 2019), appeal filed, No. 19-1641 (3d Cir.
March 25, 2019).