On the contrary, it is [Petitioner]'s burden to satisfy the Immigration Judge that he does not pose a danger to the community. See Matter of Fatahi, [26 I&N Dec. 791, 793-95 & n. 3 (BIA 2016)]. As in most cases, the evidence here is subject to more than one interpretation; however, we discern no error in the Immigration Judge's choice to credit the Interpol Red Notice and its associated documents when assessing [Petitioner]'s potential dangerousness.
The detainee may be represented by counsel and can submit evidence in support of his claims. See 8 C.F.R. § 1003.19(b) ; Matter of Fatahi , 26 I. & N. Dec. 791, 792 (B.I.A. 2016). He can also appeal an adverse decision to the BIA.
Under the regime fashioned by the INS and BIA, a noncitizen detained under § 1226(a) is subject to detention unless that person is able to show "to the satisfaction of the Immigration Judge that he or she merits release on bond." Matter of Guerra , 24 I. & N. Dec. at 40 ; see Matter of Fatahi , 26 I. & N. Dec. 791, 795 n.3 (B.I.A. 2016). The BIA itself acknowledges that § 1226(a) contains no such requirement.
Beginning in 1999, the BIA began placing the burden on the arrested individual to demonstrate, to the satisfaction of the arresting officer, that release would not pose a danger to property or persons and that the individual is likely to appear for any future proceedings to bond hearings conducted by immigration judges under § 1226(a). Matter of Adeniji, 22 I. & N. Dec. 1102, 1112 (B.I.A. 1999); see, e.g., Matter of R-A-V-P-, 27 I. & N. Dec. 803, 804, 807 (B.I.A. 2020) (affirming IJ's denial of bond based on respondent's failure to meet his burden to establish that he would not present a significant risk of flight); Siniauskas, 27 I. & N. Dec. at 207 (stating that an alien requesting a redetermination of his or her custody status "must establish to the satisfaction of the Immigration Judge and the Board that he or she does not present a danger to persons or property, is not a threat to the national security, and does not pose a risk of flight"); Matter of Fatahi, 26 I. & N. Dec. 791, 795 n.3 (B.I.A. 2016) (stating that the Board has "consistently held that aliens have the burden to establish eligibility for bond while proceedings are pending"). Under this regime, the Government is not obligated to make any showing that a noncitizen is a danger to the community or a flight risk.
The BIA has repeatedly applied this burden of proof in subsequent opinions. See, e.g.,Matter of Fatahi , 26 I. & N. Dec. 791, 795 n.3 (B.I.A. 2016) ; Matter of Guerra , 24 I. & N. Dec. 37, 40 (B.I.A. 2006). The statutory background provides context for the issue ultimately before this Court: whether the procedures employed at Petitioner's bond hearing satisfied due process, and what—if any—additional procedural protections are necessary.
Although the BIA acknowledges that § 1226(a) "does not specifically address the burden of proof" in bond hearings and simply affords "broad discretion" to the IJ detain, the BIA has "consistently held that aliens have the burden to establish eligibility for bond while proceedings are pending." Matter of Fatahi, 26 I & N Dec. 791, 795 n.3 (BIA 2016) (collecting BIA cases). See also Zadvydas, 533 U.S. at 690 (finding that a "statute permitting indefinite detention of an alien would raise a serious constitutional problem" under the Fifth Amendment's Due Process Clause); Cooper v. Oklahoma, 517 U.S. 348, 363 (1996) (holding that "due process places a heightened burden of proof on the state in civil proceedings in which the individual interests at stake, are both particularly important and more substantial than mere loss of money' "); Aleman Gonzalez v. Barr, 955 F.3d 762, 781 (9th Cir. 2020) (finding that Jennings v. Rodriguez, --- U.S. ----, 138 S. Ct. 830 (2018), did not disturb Singh's holding "that constitutional procedural due process required the government to meet the clear and convincing burden of proof standard"); Kashem v. Barr, 941 F.3d 358, 380 (9th Cir. 2019) (acknowledging Singh's clear-and-convincing evidence burden as a procedural due process standard "which applies in a range of civil proceedings involving substanti
The Government's briefing asserts that the BIA has "consistently reaffirmed that the burden should be placed on the alien." SeeMatter of Siniauskas , 27 I. & N. Dec. 207, 207 (BIA 2018) ; Matter of Fatahi , 26 I. & N. Dec. 791, 793 (BIA 2016) ; Matter of Guerra , 24 I. & N. Dec. 37, 39 (BIA 2006). According to the uncontroverted declaration of the Attorney-in-Charge of the New York Immigrant Family Unity Project at Brooklyn Defender Services, the average length of detained bond appeals to the BIA is between 4 and 6 months, but it can "exceed 8 months or longer."
Since Adeniji, the BIA has repeatedly reaffirmed that the burden should be on the alien. See In re Fatahi, 26 I. & N. Dec. 791, 793 (BIA 2016). 3.
Under the applicable regulations, "[a]n alien who seeks a change in custody status must establish to the satisfaction of the Immigration Judge 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.'" Matter of Hussam Fatahi, 26 I & N Dec. 791, 793 (BIA 2016) (quoting Matter of Guerra, 24 I & N 37, 40 (BIA 2006)). So even when the government has no evidence supporting continued detention, the alien will remain detained unless he meets his burden.
The BIA has repeatedly reaffirmed that the burden of proof falls on the alien. See, e.g., Matter of Fatahi, 26 I. & N. Dec. 791, 793 (BIA 2016). The Supreme Court recently addressed the procedures required at a bond hearing under § 1226(a) in Jennings v. Rodriguez, ––– U.S. ––––, 138 S. Ct. 830, 200 L.Ed.2d 122 (2018).