Introduction
The Supreme Court distinguishes immigration detention from criminal detention as “nonpunitive in purpose and effect.”1 However, investigations have consistently found immigration detention to be abusive, unsanitary, overcrowded, torturous, and fatal.2 These conditions combined with prolonged detention create prison atmospheres erasing any practical distinctions between punitive and nonpunitive detention for detainees.3 Concerningly, the United States has excessively relied on detention as part of its immigration policy.4 As of November 2021, 22,438 noncitizens were being held in detention.5 This number peaked under the Trump administration when over 55,000 noncitizens were held in detention at one point.6 The vast majority of detained noncitizens—seventy-six percent—have no pending criminal charges nor are convicted criminals.7 Yet, while most detained noncitizens are held in private detention centers, many are held alongside criminal defendants in county jails and state prisons, further blurring the line between immigrant and criminal detention.8
One of the ways Congress has authorized the detention of noncitizens is through 8 U.S.C. § 1226(a).9 Although § 1226(a) detainees are not yet found removable, they can be imprisoned for months and even years in the aforementioned conditions while simply awaiting the outcome of their removal proceedings.10 In other words, many noncitizens who may ultimately overcome the charges for which they are detained, or who will be granted relief from removal, are held in detention for the duration of their case.11 However, the detention of a noncitizen under § 1226(a) can be reviewed through a bond redetermination hearing.12 This Note focuses on the burden of proof in § 1226(a) bond hearings. More specifically, this Note examines how the current burden allocation in § 1226(a) bond hearings denies noncitizens their due process.
In the absence of guidance from the Supreme Court, federal circuit courts of appeals have produced a variety of approaches to burden of proof allocation in § 1226(a) bond hearings.13 Consequently, the due process that a noncitizen facing § 1226(a) detention receives and their freedom is, at best, impacted and, at worst, determined simply by their geographic location in the United States.14 Hernandez-Lara v. Lyons and Velasco Lopez v. Decker, two recent cases from the First and Second Circuits, involve due process challenges to the burden of proof in § 1226(a) bond hearings.15 While both courts shift the burden of proof to the government, the two circuits differ in the stage of proceedings in which the burden is shifted and the standard of proof the government is required to meet.16
Given the stark differences in outcomes from differing burden allocations and the liberty interests at stake, this Note argues that the burden of proof allocation for § 1226(a) bond hearings should be standardized in three ways: (1) the government should bear the burden of proof; (2) the government should meet this burden only through clear and convincing evidence; and (3) this burden allocation should apply to all § 1226(a) bond hearings as a bright-line rule.17
This Note proceeds in three Parts. Part I begins with an overview on the problematic structure of the immigration court system, how § 1226(a) is currently applied, and the history of burden shifting in § 1226(a) bond hearings. Part I then explains the due process owed to noncitizens, followed by an examination of relevant Supreme Court decisions concerning challenges to immigration detention. Part II summarizes the facts and holdings of Hernandez-Lara in the First Circuit and Velasco Lopez in the Second Circuit. Through four key points, Part III argues that a hybrid of the Hernandez-Lara and Velasco Lopez holdings is the appropriate solution to the issue of burden in § 1226(a) bond hearings. The first Section analyzes the nature of the burden, the questionable statutory interpretation of § 1226(a) by immigration courts, and the realities of detention, ultimately concluding that the government should bear the burden of proof. The second Section examines why liberty interests and the nature of immigration detention necessitate the clear and convincing evidence standard. The third Section analyzes why the government’s interest in keeping the current burden allocation fails. Finally, the fourth Section explains why a bright-line rule for this new burden allocation is better than an as-applied approach.
I. Background
A. An Overview of Immigration Courts
The issue of immigration detention is inextricably linked to the structure of immigration courts.18 Immigration courts are administrative courts housed under the Department of Justice (DOJ)’s Executive Office for Immigration Review (EOIR).19 Roughly 500 immigration judges (IJs) adjudicate the country’s removal proceedings.20 Appeals from IJ’s decisions are reviewed by the system’s single appellate body, the Board of Immigration Appeals (BIA).21 Select decisions can be further appealed to federal district or circuit courts.22 EOIR operates under the authority of the Attorney General.23 In the respective ascending order, decisions from BIA, the appointed EOIR Director, and the Attorney General create binding precedent within the immigration court system.24 Federal circuit court decisions only bind IJs within their own circuit.25 The Attorney General also supervises the DOJ attorneys prosecuting immigration cases in federal courts.26 Remarkably, as a result, “the chief prosecutor is also the chief judge.”27
The politicization of the aforementioned roles, particularly under the Trump administration, has been well documented.28 Consequently, adjudication of immigration issues is particularly subject to the shifting political whims of the executive branch.29 The Department of Homeland Security (DHS), also under the executive’s control, houses the enforcement and prosecutorial arm of the immigration system, U.S. Immigration and Customs Enforcement (ICE).30 Citing the incredible conflict of interest within the system and a myriad of constitutional concerns, immigration lawyers, judges, and advocates have been calling for reform for years, especially for the establishment of immigration courts as independent Article I courts.31
The political branches’ plenary power over immigration matters is well established and has been consistently reaffirmed.32 As a result, the Supreme Court employs “a highly deferential standard of review” to issues related to both Congress and the executive branch’s broad discretionary oversight in immigration.33 However, the Supreme Court has also expressed concerns on the unreviewable nature of many executive branch immigration decisions.34 While the Court is still highly deferential, court decisions have slowly chipped away at the government’s absolute plenary authority, particularly through due process challenges.35
B. Section 1226(a) and Removal Proceedings
Section 1226(a) of the Immigration and Nationality Act provides that ICE may arrest and detain noncitizens while removal proceedings are pending.36 Alternatively, ICE may release the noncitizen on a bond of at least $1,500 or on conditional parole.37 The § 1226(a) detention power is discretionary, unlike detention under § 1226(c) where noncitizens that are convicted of certain crimes are mandatorily detained during the pendency of their removal proceedings.38 Critically, § 1226(a) does not address the issue of burden of proof—neither the degree required nor the holder of the burden.39 When a noncitizen is arrested and put into removal proceedings, the power to detain under § 1226(a) lies initially with the immigration officer.40 If detained, the noncitizen can seek to have the decision reviewed by an IJ at a bond redetermination hearing.41 However, EOIR is not required to provide a bond hearing within any particular time frame.42 As a result, a detained noncitizen can suffer in detention for months before the initial detention decision is reviewed.43 If the noncitizen is again not granted bond at the hearing or seeks further review of the bond amount, the noncitizen can appeal to BIA.44
It is well established that discretionary detention power and mandatory detention are constitutional.45 Moreover, § 1226(e) makes clear that this discretionary judgment is not subject to review.46 However, § 1226(e) does not prohibit noncitizens from challenging “the statutory framework that permits [their] detention without bail.”47 Given that § 1226(e) does not explicitly bar habeas corpus review, as is required for such a preclusion, federal courts have jurisdiction to review “constitutional challenge[s] to the legislation authorizing [a noncitizen’s] detention without bail.”48 Similarly, the Supreme Court has held that § 1252(b)(9) does not bar review of constitutional challenges to detention.49 Rather, § 1252(b)(9) only bars review of discretionary decisions to seek removal or detention, the process by which removability is determined, and removal orders with some exceptions.50
C. The Shift from Favoring Liberty to Favoring Detention
The modern history of the burden in § 1226(a) discretionary bond hearings has two major phases: the period before the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) was passed in 1996 and the period after IIRIRA.51 Pre-IIRIRA, BIA applied a “presumption in favor of liberty” in § 1226(a) bond hearings.52 In re Patel had been long relied on for this presumption.53 Up until 1981, most deportable noncitizens were released by ICE pursuant to its authority to grant conditional parole.54
In the 1970s and 1980s, a tough-on-crime national stance became popular.55 As part of this stance, which also significantly contributed to our modern mass incarceration crisis, politicians targeted undocumented persons in the United States, blaming them for a general rise in crime and overuse of social resources.56 These sentiments influenced the passage of IIRIRA, which ultimately “recast[] unauthorized migration as a crime.”57 IIRIRA was intended to, among many other things, help effectuate removal orders by decreasing the obstacles to deporting non-detained noncitizens.58 IIRIRA pushed immigrant detention into overdrive by deputizing local police to act as ICE agents through § 1357(g),59 incentivizing localities and corporations to profit tremendously off the “immigrant detention complex” and authorizing enormous funding increases for immigration enforcement.60 Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA) a few months prior to IIRIRA.61 AEDPA, among other things, expanded the criminal grounds for deportation and, in turn, IIRIRA established the modern mandatory detention regime for criminally convicted noncitizens—§ 1226(c).62 Together, AEDPA and IIRIRA reified the foundations for “crimmigration.”63
Notably, with regards to § 1226(a), IIRIRA solely increased the bond minimum from $500 to $1,500.64 IIRIRA did not address the process by which discretionary bond hearings were held.65 The Immigration and Naturalization Service (INS),66 however, shifted from a presumption in favor of liberty to a presumption in favor of detention at the initial custody determination.67 The noncitizen was now responsible for demonstrating to the immigration officer that they were neither dangerous nor a bail risk.68 BIA then adopted this shift by applying the presumption of detention standard to § 1226(a) bond hearings, notwithstanding the lack of this presumption for bond hearings in either § 1226(a) or the corresponding regulation, 8 C.F.R. § 236.1.69
D. The Due Process Owed to Noncitizens
Although Congress is authorized to create immigration and naturalization rules “that would be unacceptable if applied to citizens,” the Supreme Court has also acknowledged that there are constitutional limits to such power.70 Most importantly for this discussion, noncitizens present in the United States are entitled to due process protections under the Fifth Amendment regardless of their immigration status.71 Whether a noncitizen received due process in a bond hearing is not a discretionary issue and, thus, is properly subject to judicial review.72 Habeas review in this context can include evaluating whether the initial detention process was constitutionally adequate, as well as whether detention conditions have become constitutionally inadequate.73
When depriving a person of liberty, procedural due process has traditionally demanded adequate notice and a reasonable opportunity to be heard.74 Substantive due process has demanded that interferences with a person’s liberty interest be fair and reasonable and for a legitimate governmental interest.75 Specifically, in nonpunitive detention, due process requires a particularly strong justification in order to deprive a person of their liberty.76 The Court has recognized two legitimate, special justifications for the detention of noncitizens: (1) to aid in removal, including ensuring noncitizens’ presence at legal proceedings, and (2) to protect the community where noncitizens pose a danger.77
In Mathews v. Eldridge, the Supreme Court established a balancing test to be used in determining whether due process had been granted in an administrative proceeding.78 Accordingly, in due process challenges to immigration proceedings, such as in Hernandez-Lara and Velasco Lopez, courts have employed the Eldridge three-part balancing test.79 Courts must balance: (1) “the private interest that will be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards”; and (3) “the Government’s interest.”80 In the context of the § 1226(a) challenges, the Eldridge factors are applied to evaluate if due process is afforded to a noncitizen when the noncitizen bears the burden of proof to demonstrate that they are neither a danger to the community nor a flight risk.81
The Eldridge balancing test has provided a pathway for federal courts to somewhat diminish the overreaching plenary power of the executive branch and, at times, to restore due process for noncitizens in detention and removal proceedings.82 When considering the government’s interest and balancing it against the remaining factors, the courts must essentially evaluate the merits of previously unreviewable immigration policy decisions.83 Critically, financial and societal costs are part of the Eldridge calculus.84 As a result, federal courts have employed the Eldridge test for judicial activism in this area.85
E. Guidance (or Lack Thereof) from the Supreme Court
The Supreme Court has not explicitly addressed the question of burden in § 1226(a) discretionary bond hearings.86 However, the Court’s other decisions related to immigrant detention provide a framework for thinking about the issue of burden and due process. In Zadvydas v. Davis, the Court found that the detention of a noncitizen must “bear[] [a] reasonable relation to the purpose for which the noncitizen [is detained].”87 In Zadvydas’s case, it was impossible to effectuate his removal order.88 Thus, continued detention of Zadvydas did not serve the government’s purpose and was a violation of his due process rights.89 Despite BIA deciding otherwise, the Court reiterated the principle that “liberty is the norm” and detention is “the carefully limited exception.”90 Further, the Court identified ICE’s custody review procedure, requiring Zadvydas to prove he was not dangerous, as constitutionally inadequate.91 Two years later, in Demore v. Kim, the Court upheld Kim’s mandatory detention under § 1226(c).92 The Court found it was constitutionally permissible to detain noncitizens without individualized determinations of dangerousness or flight risk.93 Congress had acted within its authority when classifying a certain class of noncitizens as presumptively unbailable due to dangerousness concerns.94 Thus, Kim’s detention was reasonably related to the government’s purpose.95 The differing outcomes in Zadvydas and Demore set the stage for determining what types of detention under § 1226(a) are constitutionally permissible and what procedures are constitutionally adequate.
In 2018, Jennings v. Rodriguez was a major missed opportunity for the Supreme Court to provide lower courts with procedural guidance on immigration bond hearings.96 Jennings concerned statutory and constitutional challenges to prolonged detention from a class of noncitizens detained under §§ 1225(b), 1226(a), and 1226(c).97 Rejecting the statutory argument against detention, the Court held that detained noncitizens were not entitled to periodic bond hearings after six months of detention.98 The Court further found that the Ninth Circuit misapplied the canon of constitutional avoidance to read a limit on the duration of detention into the law.99 Subsequently, the Court declined to reach the noncitizens’ constitutional due process challenges and remanded the case with instructions to reexamine the issue of class certification before examining the constitutional issues.100 Jennings left open the constitutional due process arguments against the burden allocation in § 1226(a) bond hearings, which is where this Note picks up.101
II. Circuit Split
A. First Circuit: Hernandez-Lara v. Lyons
1. Facts and Procedural History
In 2013, Ana Ruth Hernandez-Lara left El Salvador and entered the United States without inspection in order to escape severe domestic violence, rape, and gang violence.102 Hernandez-Lara eventually settled in Maine, found work at a recycling plant, and built a life in the United States.103 In September 2018, ICE arrested Hernandez-Lara and decided to detain her under § 1226(a).104 One month after her detention began, Hernandez-Lara received a bond hearing.105 At the hearing, Hernandez-Lara had the burden of proving, by clear and convincing evidence, that “she was neither a danger to the community nor a flight risk.”106 Although Hernandez-Lara had no criminal history in the United States or El Salvador and had significant ties to her family and community in Maine, the court found that she had not met her burden and cited an INTERPOL “Red Notice” identifying her.107 The notice described the activities of Mara 18—the gang she had fled five years prior—and vaguely stated she was subject to an arrest warrant in El Salvador.108 The notice did not contain any specific allegations of crimes or dangerous acts committed by Hernandez-Lara.109 Although Hernandez-Lara denied involvement, and the IJ admitted there was a possibility that she was wrongly identified or an innocent member of Mara 18, the IJ found that Hernandez-Lara’s lack of evidence rebutting the notice did not allow her to meet her burden.110 Thus, Hernandez-Lara remained in detention in New Hampshire awaiting her removal proceedings.111
In April 2019, Hernandez-Lara filed a petition for a writ of habeas corpus in federal district court.112 She argued that due process entitled her to a bond hearing where the government, not her, would be required to prove dangerousness or flight risk by clear and convincing evidence to justify her detention.113 In July 2019, Hernandez-Lara’s petition was granted, and the district court ordered the IJ to hold a second bond hearing for Hernandez-Lara where the government would have to prove that she was dangerous or a flight risk by clear and convincing evidence in order to justify her continued detention.114 Hernandez-Lara was granted bond at the second hearing; the IJ found that the government, as a result of the burden shift, could not meet its evidentiary requirements for detention.115 After over ten months in detention, Hernandez-Lara was released.116 The government appealed the district court’s decision.117
The First Circuit affirmed the district court’s order of a second bond hearing where the government, not the noncitizen, bore the burden of proof.118 The court also affirmed that the government must prove dangerousness by clear and convincing evidence.119 The court reversed the district court’s finding with respect to the standard required for proving flight risk, holding that the government was only required to prove flight risk by a preponderance of the evidence.120 With its decision, the court established a bright-line rule for the burden standard in § 1226(a) discretionary bond hearings.121
Applying the Eldridge balancing test, the court found the three factors all cut in favor of Hernandez-Lara.122 The private interest affected, Hernandez-Lara’s liberty, was substantial.123 Her detention deprived her of relations with her family and her employment for ten months.124 The court noted that Hernandez-Lara was detained in county jail with criminal inmates and would have remained there for more than two years if not for the district court order.125 Neither the option to end detention through voluntary departure126 nor the finite duration of removal proceedings diminished the significant deprivation of the liberty interest here.127
In considering the second factor, risk of error, the court noted that detention overwhelmingly hindered noncitizens’ ability to access counsel and gather evidence.128 Language barriers and unfamiliarity with the immigration system procedures put noncitizens at an additional disadvantage.129 Where the noncitizen both bears the burden of proof and is required to prove two negatives, these considerations become outcome-determinative against the noncitizen.130 Hernandez-Lara’s prolonged detention demonstrated the error that this burden risked and the significant resulting consequences.131
In its evaluation of the third factor, the court recognized the government’s legitimate interest in the “prompt execution of removal orders.”132 However, the court distinguished that the issue at hand was not the government’s right to detain but who bore the burden at bond hearings.133 Given the risk of error when a noncitizen bears the burden, detaining a noncitizen that ultimately does not pose a flight risk fails to serve the government’s interest.134 Given the government’s incentive to gather evidence and its access to resources, a burden shift would not hinder the relevant government interest in any substantial way.135 Finally, the court considered the public interest as a component of the government’s interest.136 The detention of noncitizens pending removal proceedings, particularly prolonged and erroneous detention, leads to substantial financial and societal costs.137 Thus, the court found the final factor also provided a basis for burden shifting.138
On the question of standard of proof, the court affirmed that clear and convincing evidence was required for proving dangerousness.139 The second Eldridge factor and the government’s more comprehensive access to evidence of a noncitizen’s danger risk necessitated a standard that appropriately reflected the liberty interest at stake.140 However, the court found the risk of error in flight risk determinations was considerably less, allowing for a lower standard of proof: mere preponderance of the evidence.141 The court noted that noncitizens have access to the most relevant information for flight risk such as family information, community ties, employment records, and housing information.142 Moreover, flight risk is more closely connected to the government’s interest in effectuating removal orders compared to danger risk.143 The court found a preponderance of the evidence standard for flight risk reflected these differences and aligned with the standard required for flight risk determination in criminal bail hearings.144
B. Second Circuit: Velasco Lopez v. Decker
1. Facts and Procedural History
Carlos Velasco Lopez, at the age of four, left Mexico and entered the United States without inspection.145 Since 2000, he grew up and built a community in New York with his family.146 In high school, he eventually applied for Deferred Action for Childhood Arrivals (DACA) and was approved in 2013.147 After high school, Velasco Lopez became a sous chef as well as a caretaker to his ill mother.148 In 2016, he pled guilty to driving while impaired.149 Then, in March 2017, Velasco Lopez faced charges relating to a local bar fight.150 However, he denied any involvement in the altercation.151 In late 2017, his DACA renewal application was denied and he lost his DACA status.152 In February 2018, Velasco Lopez was arrested for the unlicensed operation of a vehicle and driving while intoxicated.153 He was transferred to ICE custody and put in detention pursuant to § 1226(a).154 Between February and April 2018, ICE failed to produce Velasco Lopez for four different criminal court appearances related to the bar altercation.155 A criminal court bench warrant for Velasco Lopez was also issued, while he was in immigration detention, for failing to appear in criminal court for his February 2018 arrest.156
In May 2018, three and half months after his detention began, Velasco Lopez finally received a bond hearing.157 At the hearing, Velasco Lopez bore the burden of proof to show that he was neither a danger to the community nor a flight risk in order to be eligible for bond.158 In part because of his outstanding charges, he was unable to meet this burden.159 The IJ denied bail on June 21, 2018.160 The charges against Velasco Lopez related to the bar altercation were dismissed on June 25, 2018.161 Yet, he remained in detention.162 He was granted a second bond hearing in October 2018.163 Here, Velasco Lopez was unable to produce charging documents from the February 2018 arrest in sufficient detail as requested by the IJ.164 Thus, an adverse inference was made against him even though this information was not available because he was unable to answer the criminal court charges due to his immigration detention.165 Again, Velasco Lopez was denied bail.166
By April 2019, Velasco Lopez had been in detention for fourteen months pending his removal proceedings.167 He filed a petition for a writ of habeas corpus in federal district court.168 Velasco Lopez raised a due process challenge to his prolonged incarceration despite the government not proving he was a bail risk.169 The district court granted the petition and ordered a new bond hearing where the burden was shifted to the government to prove by clear and convincing evidence that Velasco Lopez was dangerous or a flight risk.170 At this new hearing, the court found the government failed to meet its new burden, and Velasco Lopez was released on $10,000 bond.171 The government appealed the district court’s order.172
The Second Circuit held that the district court correctly shifted the burden to the government for the new bond hearing and correctly ordered the application of a clear and convincing evidentiary standard for proving dangerousness and flight risk.173 The court identified that the issue was whether an ongoing detention had become unlawful, and as a result, “whether additional procedural protections [had then become] necessary.”174 This was not a due process challenge to § 1226(a) detention as a whole.175 Notably, the court emphasized that the holding did not establish a bright-line rule with regards to when a bond hearing with a shifted burden was required by due process.176
Applying the Eldridge balancing test, the court found all three factors weighed heavily in favor of Velasco Lopez.177 The court highlighted the condition of his detention and its impact on his liberty interest: Velasco Lopez’s detention was “indistinguishable” from the conditions of criminal incarceration, while lacking the same procedural protections afforded to criminal defendants.178 As his detention became prolonged, the deprivation of his interest grew.179 With no apparent end in sight for his detention, the first factor solidly weighed in Velasco Lopez’s favor.180
Regarding the second factor, the court found the process given to Velasco Lopez resulted in a significant risk of error.181 Velasco Lopez’s detention not only impeded his ability to produce evidence for his bond hearings, but it also prevented him from resolving his pending criminal charges.182 Although out of Velasco Lopez’s control, the pending charges resulted in an adverse inference about his dangerousness.183 Citing Zadvydas, the court emphasized that the procedural protections owed to a noncitizen increase with prolonged detention.184 A bond hearing with a burden shifted to the government would mitigate the risk of error at issue in the second factor.185 Moreover, prolonged detention increased the opportunity for the government to find the necessary evidence to prove dangerousness or flight risk.186
Lastly, the court recognized the government’s interest in effectuating removal orders and preventing noncitizens from committing crimes.187 However, “prolonged detention of noncitizens who are neither dangerous nor a risk of flight,” like Velasco Lopez, do not serve these interests.188 The court found that long-term deprivation of a noncitizen’s liberty interest required a stronger governmental interest than that required for short-term detention.189 Burden shifting in bond hearings once detention is prolonged would ensure the necessary stronger interest is established to justify continued detention.190 Thus, in addition to the societal costs posed by prolonged detention, the third factor also cut in favor of a burden shift.191
On the issue of the standard of proof in bond proceedings with a shifted burden, the court found that a clear and convincing evidence standard for proving both dangerousness and flight risk was appropriate.192 Relying on Supreme Court precedent and the standard of proof employed in other types of civil detention proceedings, the court held that the potential injury, deprivation of one’s liberty, was too great “to allocate the risk of error evenly between the [noncitizen] and the Government.”193 The heightened standard of clear and convincing evidence, compared to a preponderance of the evidence, provided better procedural protections for such a fundamental interest.194
C. The Other Circuits
There has been a relatively recent increase in burden shifting to the government in bond hearings.195 However, these shifts are not all alike.196 For example, the Ninth Circuit adopted a burden shift in Casas bond hearings.197 Casas bond hearings are for noncitizens detained “under § 1226(c) but who have a stay of removal pending a petition for review, or have had their case remanded to the BIA.”198 Under Casas-Castrillon v. Dep’t of Homeland Security, where prolonged detention is found, the government must bear the burden of proving dangerousness and flight risk by clear and convincing evidence.199 In Singh v. Holder, the Ninth Circuit again shifted the burden to the government in § 1226(a) bond hearings.200 Singh was initially detained pursuant to § 1226(a) and pending a judicial review of his stayed removal order.201 As a result, he was held in detention for almost four years during the pendency of these proceedings.202 There, the court required that the government prove by clear and convincing evidence that Singh’s continued detention was justified.203
Section 1226(a) burden-shifting arguments have failed in both the Third and Fourth Circuits.204 The Third Circuit, in Borbot v. Warden Hudson County Correctional Facility, found that even after fourteen months of detention pursuant to § 1226(a), Borbot was not entitled to a second bond hearing where the government must carry the burden of justifying Borbot’s continued detention.205 However, in German Santos v. Warden Pike County Correctional Facility, the Third Circuit clarified that due process “limits detention without a bond hearing to a ‘reasonable’ period,” making as-applied challenges to § 1226(c) mandatory detentions permissible.206 The Third Circuit further held that the government must prove by clear and convincing evidence that continued detention is justified where prolonged detention is found.207
Most recently, the Ninth Circuit, in Rodriguez Diaz v. Garland, rejected a Velasco Lopez– and Hernandez-Lara–type burden shift, opting instead to follow the Third and Fourth Circuits.208 Emphasizing the flexibility of the Eldridge balancing test and relying on Demore, the court found that “the private interest of a detained alien under § 1226(a) is lower than that of a detained U.S. citizen, and [that] governmental interests are significantly higher in the immigration detention context.”209 While distinguishing Rodriguez Diaz’s situation from that of Singh’s, the Ninth Circuit declined to say whether Singh was still good law and indicated that recent Supreme Court decisions on the matter may have nullified the court’s past decisions.210
While some circuits have addressed the burden, albeit in different ways, other circuits have not been presented the issue and, presumably, maintain BIA’s current burden allocation in bond hearings.211 These differences result in disparate outcomes for § 1226(a) detainees in different parts of the country since the burden and standard allocations heavily impact, and even determine, the outcomes of bond proceedings.212 In essence, a noncitizen’s due process rights and liberty unacceptably vary depending on their location.213 Standardizing the burden can help resolve some of these disparities by keeping § 1226(a) bond procedures consistent throughout the country.
III. Analysis
A. The First and Second Circuits Correctly Shifted the Burden Back
to the Government
1. The Outcome-Determinative Nature of the Burden Denies Noncitizens Due Process
Placing the burden of proof in § 1226(a) bond hearings on noncitizens can be outcome-determinative and, thus, inherently unfair. Noncitizens are required to meet the difficult requirement of proving two different negatives in order to obtain their freedom.214 To demonstrate that they are not dangerous nor a flight risk, noncitizens are often put in the position of rebutting evidence that does not exist because the government is not required to present anything.215 Even more concerningly, since the government is not held to any standard in these proceedings, noncitizens have been put in the impossible position of rebutting faulty or unproven allegations.216 The conditions of detention compound these difficulties by severely limiting any access detainees may have to evidence or attorneys.217 As a result, noncitizens are set up for failure in § 1226(a) hearings—both Hernandez-Lara and Velasco Lopez would have likely been released at their initial bond hearing if the government had bore the burden instead.218 As Justice Breyer noted in his dissent in Jennings, “[t]he Due Process Clause foresees eligibility for bail as part of ‘due process,’” and “[b]ail is ‘basic to our system of law.’”219 By virtue of bearing the burden, noncitizens’ eligibility for bail is minimized.220 In comparison, when the government carries the burden, its ability to detain noncitizens is drastically decreased.221 These disparate outcomes based on who bears the burden call into question the fairness and meaningfulness of process in § 1226(a) hearings.222 When noncitizens do not have meaningful eligibility for bail, as is the case when they bear the burden of proof, noncitizens are arbitrarily detained and denied due process.223 Furthermore, if the allocation of burden alone overwhelmingly dictates the outcome of the proceeding, then it inevitably results in cases of erroneous detention; the noncitizen’s actual level of dangerousness or flight risk does not determine detention as is required by due process.224
2. BIA’s Original Burden Shift Was Erroneous
BIA erroneously departed from decades of precedent when it shifted the burden in § 1226(a) hearings from the government to the noncitizen to reflect INS’s burden shift.225 In making the shift, BIA incorrectly relied on 8 C.F.R. § 236.1(c)(8), which requires noncitizens to prove to the detaining ICE officer that they are not a flight risk nor a danger to the community.226 However, § 236.1(d)(1), which pertains to bond hearings in immigration court, only states that IJs have the authority to detain, release, and determine bond amounts.227 It does not address who bears the burden of proof in immigration court bond hearings.228 Whereas § 1226(c), which concerns mandatory detention of criminal noncitizens, expressly allocates the burden of proof to the noncitizen to prove they are not dangerous and will appear for future appearances.229 Where the noncitizen satisfies their burden, the arresting agency is given the authority to discretionarily release them.230 In § 1226(a), language concerning the necessary burden of proof or holder for release of the noncitizen is absent.231 This express allocation of burden in certain parts of the statute and silence as to the burden in other sections of the same statute indicate that Congress intentionally did not put the burden on noncitizens detained under § 1226(a).232 Thus, there was no regulatory or statutory basis for BIA’s original burden shift.
Moreover, BIA’s shift contradicts traditional legal theory, where the burden of proof is carried by the party who seeks the law’s intervention.233 Both criminal and civil confinement proceedings adhere to this theory.234 For example, the Supreme Court in Addington v. Texas and Foucha v. Louisiana placed the burden of proof on the government for civil commitment of mentally ill persons.235 The Supreme Court has repeatedly characterized immigration detention as a similar type of nonpunitive civil detention.236 Keeping with the Court’s civil proceeding analogies, BIA’s original burden shift in bond hearings was inconsistent with traditional legal theory and civil proceedings. The government is the party seeking the court’s intervention in § 1226(a) bond hearings—the government is asking the court to authorize the continued detention of the noncitizen.237 However, by shifting the burden back to the government, the First and Second Circuits correctly realigned the discretionary bond process with the norm.238
3. Realities of Detention Necessitate a Burden Shift
Many noncitizens are erroneously and arbitrarily detained because ICE’s custody determination practices fail to provide noncitizens with due process.239 In the initial § 1226(a) custody determination, noncitizens bear the burden of proving to ICE that they are not a danger or flight risk.240 Due to the short time frame of this decision, noncitizens often are unable to procure an attorney or gather substantial evidence.241 This automatically increases the chance that noncitizens will be detained.242 Moreover, the government has steadily compromised the due process owed to noncitizens by conflating the power to deport with the power to detain.243 One study of 33,413 cases in New York between 2013 and 2019 revealed that ICE had manipulated risk assessment tools to overwhelmingly detain noncitizens under § 1226(a), even though they presented a low risk of flight and danger.244 These noncitizens were detained without the required justifications, making their detention constitutionally impermissible.245 The study also indicated that executive immigration policy has forced discretionary detention to become drastically less discretionary in practice.246 In other words, political factors, such as Trump’s no-release agenda, may have more influence on a noncitizen’s detention than a noncitizen’s actual dangerousness or flight risk. Thus, ICE consistently fails to make constitutionally required individualized assessments when depriving noncitizens of their liberty.247 These failures of ICE necessitate bond hearings that adequately review ICE’s determinations to ensure all § 1226(a) detainees are properly detained. Accordingly, a burden shift to the government provides an opportunity for a meaningful review of ICE’s custody decision as it forces the government to present reliable evidence to justify detention.248
Detention compromises a noncitizen’s access to counsel and ability to gather evidence, which, in turn, harms the noncitizen in immigration proceedings.249 Detained noncitizens are far less likely to have representation than non-detained individuals.250 This is problematic, considering that the average detainee is unfamiliar with the intricacies of immigration law proceedings.251 As a result, unrepresented detainees are unaware of potential opportunities for relief or are unable to pursue a beneficial course of action that they otherwise would with the help of an attorney.252 These obstacles are often compounded by a detainee’s unfamiliarity with English, psychological deterioration from detention, and inability to effectively gather evidence due to their isolated location.253 Regardless of representation, many detainees also have limited resources.254 By bearing the burden in § 1226(a) bond hearings, detainees are forced to allocate their limited resources to gathering evidence for two different, simultaneous cases—their bond hearing and their removal proceedings.255 These disadvantages create hearings with severely imbalanced equities.256 Shifting the burden to the government in § 1226(a) bond hearings would help reduce erroneous detention and, thus, put noncitizens in more equitable positions in immigration proceedings.257 Even when detention is justified under § 1226(a), shifting the burden would help alleviate some inequities by decreasing the disproportionate strain placed on the noncitizen.258
The increasingly prolonged nature of detention under § 1226(a) requires procedural safeguards to prevent the risk of erroneous deprivation of liberty.259 One of the ways the Supreme Court distinguished Demore from Zadvydas was on the ground that Demore’s detention was much shorter in duration.260 The Court relied on government data that § 1226(c) detention lasted “roughly a month and a half in the vast majority of cases . . . and about five months” where the noncitizen appealed, compared to Zadvydas’s three years and counting.261 As the Velasco Lopez court noted, “[w]here the Supreme Court has upheld detention during the pendency of removal proceedings, it has been careful to emphasize the importance of the relatively short duration of detention.”262 Aside from the fact that the data relied on by the Demore court was faulty,263 detention under § 1226(a) increasingly reflects durations closer to Zadvydas than those of Demore.264 Velasco Lopez was detained for fifteen months in conditions indistinguishable from criminal detention.265 Likewise, Hernandez-Lara would have been detained for over two years if habeas relief had not been ordered.266 Singh, in the Ninth Circuit, was detained for an astounding four years.267 Similarly, an investigation of § 1226(a) detainees in Boston and Hartford revealed that “one in four was incarcerated for two years or longer.”268 Consider that the average immigration case in fiscal year 2021 was pending for 955 days, while the average case in fiscal year 2003, when Demore was being heard, was pending for only 282 days.269 These durations reflect a trend toward prolonged detention generally, including under § 1226(a).270 Given this trend and the record-breaking backlog of cases in the immigration court system, a proper burden is one that minimizes the risk of a noncitizen being erroneously or unnecessarily stuck in prolonged detention.271 A burden shift to the government in § 1226(a) bond hearings is a practical procedural safeguard that helps minimizes such risks.
B. The Clear and Convincing Standard Is the Appropriate
Standard of Proof
1. The Liberty Interest at Stake Is Too Great for a Lesser Standard
Together, a proper burden allocation and an appropriate standard of proof minimizes the risk of erroneous detention.272 Given the fundamental importance of the liberty interest at stake, a high standard of proof should be applied to both dangerousness and flight risk determinations in § 1226(a) bond hearings.273 Standards of proof reflect the value of the right that is threatened.274 Section 1226(a) bond hearings concern the noncitizen’s liberty interest—arguably the most important interest of all.275 Thus, the noncitizen’s interest here is entitled to a corresponding heightened protection.276 Allocations of burden and standard of proof serve to “allocate the risk of error” between the government and the noncitizen.277 A clear and convincing standard would require the government to produce more reliable evidence than it currently is required to in order to justify detention.278 In Hernandez-Lara and Velasco Lopez, both circuits found that a clear and convincing standard was necessary when weighing both the increased risk of error from placing the burden on the noncitizen and the government’s advantage in accessing evidence of dangerousness.279
The Hernandez-Lara court is mistaken in its conclusion that the risk of error for flight risk determinations is not high enough to necessitate a standard stronger than the preponderance standard.280 First, the court overestimates the noncitizen’s ability to gather and present information while incarcerated.281 The court claims the noncitizen has more access to information related to flight risk factors as opposed to information on their dangerousness.282 Second, the court assumes that a burden shift without an elevated standard of proof is sufficient because the detainee only needs to rebut the government’s claims with “readily available” evidence.283 However, this evidence is not actually readily available.284 Many detainees are often isolated far from their families and communities, have restricted access to phones and visitors, possess minimal legal knowledge to present arguments successfully on their own, and have limited English proficiency.285 Even when detainees have knowledge of what information to collect or who to contact, many family and community members that can provide this information are hesitant to come forward and inadvertently put themselves in danger with ICE.286 Thus, shifting the burden alone is not enough. The government must be held to a standard higher than the preponderance standard to counteract the inherent disadvantages detainees face in these proceedings.287
Further, it is unlikely that elevating the standard impairs the government in any substantial way.288 Bond hearings are a review of the initial custody determination.289 Thus, the government should have already collected and used much of the necessary evidence for bond hearings in its initial custody determination.290
The court in Hernandez-Lara also justified a lower standard for flight risk determinations because it claimed there is a closer nexus between flight risk and the government’s interest in effectuating removal orders.291 However, data indicates that flight risk among noncitizens is not the problem the government makes it out to be.292 In a national study of removal proceedings from 2008 to 2018, “83% of nondetained immigrants with completed or pending removal cases attended all their hearings.”293 When represented by a lawyer, which is drastically more accessible where a noncitizen is not detained, the appearance rate increases to 96%.294 Moreover, of those noncitizens with removal orders for failure to appear, 15% had their removal order overturned.295 This study indicates that detention may not be necessary to meet the government’s interest, especially in light of the fact that § 1226(a) detainees have not been ordered removed.296
2. If Immigration Detention Is Civil Detention, It Must Align with Civil Proceedings
The Hernandez-Lara court is wrong to justify the preponderance standard for flight risk determinations in § 1226(a) bond hearings by using comparisons to criminal court procedures.297 The Supreme Court has repeatedly characterized immigration detention as a type of nonpunitive civil detention.298 Thus, immigrant detention standards should reflect standards used in other civil confinement proceedings.299 In Addington v. Texas, the Court held that the preponderance standard was insufficient to meet the due process demands necessary for the civil confinement of mentally ill persons.300 Further, the Court held that a clear and convincing standard was required at minimum to deprive petitioners of their liberty rights.301 Accordingly, to be consistent with the Court’s holdings on immigrant detention and civil detention, the government should be required to prove both dangerousness and flight risk by clear and convincing evidence in § 1226(a) bond hearings.
The Hernandez-Lara court’s rationale here is also weak because § 1226(a) detainees are not entitled to the same procedural protections as criminal defendants.302 Most importantly, noncitizen detainees are not entitled to government-appointed counsel as are criminal defendants.303 Similarly, the Federal Rules of Evidence do not constrain immigration courts.304 Thus, immigrant detainees are left without the same procedural protections as criminal defendants.305 Along with the punitive nature of immigrant detention, these differences have led to many scholars calling for the criminal procedural protections to apply in immigration proceedings.306 While these arguments are strong, recent Supreme Court decisions and the Court’s overall deference to the political branches on immigration matters do not indicate that the Court is interested in drastically changing the inner workings of immigration proceedings.307 If the Court insists on recognizing immigration detention as a type of civil detention, alignment with civil detention standards is necessary in the absence of other procedural safeguards.308
C. An Unshifted Burden Fails to Meaningfully Serve the
Government’s Interest
An unshifted burden fails to meaningfully serve the government’s interest because it results in erroneous detention, and the cost of such detention outweighs any purpose detention serves. The main argument in defense of immigrant detention is that it serves the government’s interest by protecting the community and helping effectuate removal orders.309 The Court has repeatedly recognized that detention of noncitizens found to be dangerous or a flight risk qualifies as a legitimate interest, justifying nonpunitive detention.310 However, if the burden in § 1226(a) bond hearings results in the erroneous and arbitrary detention of many noncitizens who do not actually pose a danger or a flight risk, then the government’s interest is not being served by such detention nor is the detention justified.311 BIA’s improper burden allocation in § 1226(a) bond hearings creates opportunity for this type of unjustified detention.312 Thus, shifting the burden to the government and applying the appropriate standard does not harm the government. Instead, it helps to minimize errors and ensure the government’s interest is being met.
The government’s interest is actually harmed by the significant financial and societal costs it incurs through detention, especially erroneous detention.313 Taxpayers foot the bill for ICE’s detention costs—$2.8 billion for the fiscal year 2022.314 The average cost of ICE detention per adult per day is $134.315 Velasco Lopez’s unnecessary fifteen-month detention cost taxpayers about $60,000.316 In addition to economically destabilizing families and communities, detention commonly traumatizes and psychologically harms those in detention and their communities outside.317 If the burden had been properly allocated to the government at his initial bond hearing, Velasco Lopez’s detention and, subsequently, these costs could have been significantly minimized. Where detention is unjustified or prolonged, government resources are further drained through lengthy appeals and habeas petitions.318 Similarly, a proper burden allocation could decrease the need for these proceedings.319 These costs become even more unjustifiable when considering that effective alternatives to detention, which serve the government’s interest, exist at a fraction of the cost of detention.320 Unnecessary spending and societal harm are plainly against public interest.
D. A Bright-Line Rule Is Better Than a Case-by-Case Approach
Combined with a burden shift and a heightened standard placed on the government, a bright-line approach is the most protective of noncitizens’ liberty interests in § 1226(a) bond proceedings. Unlike in Hernandez-Lara, the court in Velasco Lopez did not find a need to take a bright-line approach.321 Instead, the Second Circuit held that an as-applied balancing approach was sufficient to determine when a new hearing with a shifted burden was necessary for prolonged detention under § 1226(a).322 Under the Velasco Lopez holding, the burden remains unshifted at an initial § 1226(a) bond hearing.323 Only when the court decides that factors lean toward a determination that detention is unnecessarily prolonged does the government have to justify its continued detention of the noncitizen under a shifted burden.324 Without a standardization of when the burden should be shifted, the same risks of erroneous and arbitrary detention under § 1226(a) persist at the initial bond hearing.325 Moreover, different circuits vary in what factors are taken into account to determine when a new hearing is necessary to justify continued detention.326 Thus, determinations of when prolonged detention becomes a violation of due process is subjective to the circuits.327 For two § 1226(a) detainees in the same exact circumstances, the difference between one being free and another remaining detained can come down to location.328 Such disparate outcomes and arbitrary deprivations of liberty can be avoided by applying a shifted and heightened burden to all § 1226(a) bond hearings.
An unstandardized or as-applied approach to the burden shift creates conditions for some § 1226(a) detainees to first have their due process rights violated by prolonged detention, and then have only the potential opportunity for relief. After a § 1226(a) detainee has exhausted their appeals from their initial custody determination, the custody decision can only be reconsidered in light of changed circumstances or by a writ of habeas corpus.329 Changed circumstances, such as specific health risks due to a pandemic, a change in laws, or a new basis of relief from removal, may help some detainees.330 However, not all erroneously detained noncitizens can claim changed circumstances. Further, habeas corpus filings are not a practical or efficient way to deal with such erroneous detentions.331 Due to their lack of representation, many detainees do not know the option exists.332 Even if they do, the habeas process is lengthy and expensive.333 It compounds an already prolonged detention and forces detainees to allocate severely limited resources to another legal battle.334 Moreover, the granting of habeas petitions in prolonged detention cases varies widely among circuits.335 A bright-line approach to § 1226(a) bond hearings helps minimize the risk of erroneous detention, avoiding the need for later changed circumstances or habeas proceedings. As a result, a burden shift, heightened standard, and bright-line approach have the capacity to reduce administrative burdens in an already overburdened system.336
Conclusion
Given the disparate outcomes and potential due process violations among different burden allocations in § 1226(a) bond hearings, it is imperative to resolve the circuit split swiftly.337 Borrowing from both Hernandez-Lara and Velasco Lopez, the risk of erroneous detention and due process violations is best mitigated if the government bears the burden of proof by a clear and convincing standard in all § 1226(a) bond hearings. This proposed standardization better serves both the government’s interest and noncitizens’ interests than BIA’s current burden allocation.
Relevantly, the Supreme Court decided two cases this past term that dealt directly with the issue of bond hearings and burden allocation, albeit in the context of noncitizens detained under 8 U.S.C. § 1231(a)(6).338 Both Garland v. Aleman Gonzalez and Johnson v. Arteaga-Martinez asked whether noncitizens with final orders of removal and who are detained under § 1231(a)(6) are statutorily entitled to bond hearings after six months of detention, at which the government must prove to an IJ by clear and convincing evidence that the noncitizen is a danger to the community or a flight risk.339 In an 8-1 opinion, the Court answered no.340 The Court reiterated its holding in Jennings, making clear that a statutory basis for the right to a periodic bond hearing does not exist under § 1226(a) or § 1231(a)(6).341 However, the Court again left open the constitutional challenges to prolonged detention for lower courts to decide.342 Although both disappointing decisions, Aleman Gonzalez and Arteaga-Martinez at least suggest that a future due process challenge to detention procedures may be a viable avenue to standardizing burden allocation under § 1226(a).