Summary
holding prisoner could not bring a habeas action for COVID-19 related concerns
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Civil Action No. 1:20-cv-00940-DDD
2020-05-11
Khalid BASRI, Plaintiff, v. William BARR, Matthew T. Albence, Chad Wolf, John Fabbricatore, and Johnny Choate, Defendants.
Jeffrey Dean Joseph, Shana D. Velez, Aaron C. Hall, Joseph & Hall P.C., Aurora, CO, for Plaintiff. Timothy Bart Jafek, U.S. Attorney's Office, Denver, CO, for Defendants.
Jeffrey Dean Joseph, Shana D. Velez, Aaron C. Hall, Joseph & Hall P.C., Aurora, CO, for Plaintiff.
Timothy Bart Jafek, U.S. Attorney's Office, Denver, CO, for Defendants.
ORDER
Daniel D. Domenico, Judge
Before the Court are Plaintiff Khalid Basri's petition for a writ of habeas corpus (Doc. 1, the "Petition") and motion for temporary restraining order (Doc. 6, the "Motion"). Both the Petition and the Motion seek his immediate release from the Aurora Contract Detention Facility (the "Detention Facility") where he is being held in pre-removal immigration detention. He argues that the Detention Facility has failed to prevent the spread of the novel coronavirus that causes COVID-19, thus violating his constitutional rights. In the alternative, he argues that he was made to improperly bear the burden of proof at his pre-removal bond hearing under 8 U.S.C. § 1226(a). Neither argument entitles him to relief. The Court lacks jurisdiction over his first claim because a conditions-of-confinement claim is not cognizable in a petition for a writ of habeas corpus. And the Constitution does not require the government to prove detention is necessary in immigration bond hearings. The Court thus DENIES Mr. Basri's Petition (Doc. 1) and Motion (Doc. 6).
BACKGROUND
Mr. Basri is a citizen of Morocco who is currently detained by Immigration Customs and Enforcement ("ICE") at the Detention Facility in Aurora. Doc. 1, ¶ 9. In late February 2020, Mr. Basri was arrested in Pitkin County for assaulting his wife. Doc. 18 at 2. ICE took custody of Mr. Basri on March 3, 2020, and began removal proceedings against him the same day. Id. Mr. Basri is being detained under 8 U.S.C. § 1226(a). He has had two bond hearings, at which he bore the burden to prove he was not a flight risk or a danger to the community. Doc. 1, ¶ 7; see also In re Adeniji , 22 I. & N. Dec. 1102, 1116 (B.I.A. 1999) (allocating burden of proof to alien in pre-removal bond hearing).
Mr. Basri filed his petition for writ of habeas corpus on April 3, 2020. Doc. 1. He alleges, in short, that the Detention Facility has taken inadequate steps to prevent the spread of the novel coronavirus that causes COVID-19, and the only possible way to ameliorate the threat posed by its spread is his immediate release. Mr. Basri filed an emergency motion for a temporary restraining order under Federal Rule of Civil Procedure 65 on April 6, 2020. Doc. 6. Because the Court found the standard for issuing a TRO without notice had not been met, see Fed. R. Civ. P. 65(b)(1), the Court instead ordered the Defendants William Barr, Matthew T. Albence, Chad Wolf, John Fabbricatore, and Johnny Choate (together, "Defendants") to show cause why the Petition should not be granted or why a preliminary injunction should not be granted. Doc. 10.
DISCUSSION
I. Request for Immediate Release Based on COVID-19 Pandemic
Habeas corpus review is available under Section 2241 if an immigration detainee is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3) ; see also Zadvydas v. Davis , 533 U.S. 678, 687, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (immigration detainees may bring Section 2241(c)(3) petitions). The writ is one of the essential protections afforded in a free society, dating back to at least the Magna Carta. It provides for release from arbitrary detention. But release from custody is also an extreme remedy, so Congress has been careful to circumscribe its use by the courts.
Most fundamentally, and relevant here, a petition for writ of habeas corpus is only available to challenge the fact or duration of confinement—not the conditions of confinement. When the claim is not that detaining the petitioner is illegal under any circumstances, but that it is illegal under present conditions, the proper vehicle for relief is 42 U.S.C. § 1983 (for claims against state actors), or Bivens v. Six Unknown Named Agents , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (for claims, like Mr. Basri's, against federal actors). Standifer v. Ledezma , 653 F.3d 1276, 1280 (10th Cir. 2011). This distinction isn't empty formalism. The writ, while essential to our political system, is a drastic remedy. Permitting conditions-of-confinement claims to be asserted in petitions for writs of habeas corpus would greatly enlarge the writ and fundamentally change its purpose. As the Tenth Circuit has explained,
Though the Supreme Court has not set the precise boundaries of habeas actions, it has distinguished between habeas actions
and those challenging conditions of confinement. This court has "endorsed this distinction." In this circuit, a prisoner who challenges the fact or duration of his confinement and seeks immediate release or a shortened period of confinement, must do so through an application for habeas corpus. In contrast, a prisoner who challenges the conditions of his confinement must do so through a civil rights action.
Palma-Salazar v. Davis , 677 F.3d 1031, 1035 (10th Cir. 2012) ; see also Standifer , 653 F.3d at 1280 ("It is well-settled law that prisoners who wish to challenge only the conditions of their confinement, as opposed to its fact or duration, must do so through civil rights lawsuits ... not through federal habeas proceedings.").
The history of the "great writ of liberty" makes sense of this distinction. The writ of habeas corpus serves a limited—but essential—function in our government of laws, not of men. It provides recourse against arbitrary detention and arrest by the executive. See The Federalist No. 84 (Alexander Hamilton) (explaining that the writ of habeas corpus is a bulwark against "the practice of arbitrary imprisonments, [which] have been, in all ages, the favorite and most formidable instruments of tyranny"). It does this by providing a detainee with a right to immediate release from illegal custody: "The essence of habeas corpus is an attack by a person in custody upon the legality of that custody." Preiser v. Rodriguez , 411 U.S. 475, 484, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).
Inherent in this is the distinction between habeas claims and other civil rights claims. A petition for a writ of habeas corpus attacks the fact of custody or sentence. Standifer , 653 F.3d at 1280. The writ, if properly issued, says the state has no lawful basis to detain the petitioner under any circumstances. By contrast, a conditions-of-confinement claim attacks the circumstances of confinement. Id. It, if true, says that the state is detaining the petitioner in an unlawful manner, but otherwise the detention is lawful. The core difference between these claims lies in the answer to a simple question: if the challenged conduct ceased, would the state have a valid basis to detain him? If the answer is "yes," then the petitioner is pursuing a conditions-of-confinement claim and doesn't have a valid basis to seek a writ of habeas corpus.
Given this distinction, it is clear that the bulk of Mr. Basri's petition and motion for a temporary restraining order, which focus on the dangers of the SARS-CoV-2 virus, cannot support a writ of habeas corpus. As the government recognizes, the COVID-19 pandemic is a major public health threat. Mr. Basri's filings thoroughly highlight the serious dangers it poses in general, and to those in custody in particular. He attacks the measures (or lack thereof) that Defendants have implemented in response to COVID-19 on the basis that the lack of protection violates his constitutional rights. According to Mr. Basri, "The conditions in the Aurora Contract Detention Facility contravene all medical and public health directive[s] for risk mitigation." Doc. 6, ¶ 22.
Mr. Basri's filings repeatedly emphasize how these "conditions" render his detention unsafe and unconstitutional. See, e.g. , Doc. 21 at 3. By its own terms, then, his claim is based on the conditions of his confinement. Under binding Tenth Circuit precedent, this is not a proper habeas corpus claim. Nevertheless, Mr. Basri says that "the very premise of [his] habeas petition is that the conditions in the Aurora CDF [that are] putting [him] at risk ... cannot be remedied by any judicial order." Doc. 21 at 3. But simply asserting that the petitioner believes release is the only proper remedy does not turn a conditions-of-confinement claim into a habeas corpus claim. As Standifer , Palma-Salazar , and the other cases discussed above explain, it is not just the remedy that determines whether one is asserting a habeas corpus or a conditions-of-confinement claim; the difference is that a habeas claim is one that asserts detention under any circumstances is illegal. Indeed, Mr. Basri's alternative claim—that he is being held in violation of the Constitution because he was made to bear the burden of proof at his bond hearings—is precisely the kind of claim that can be asserted in a habeas petition, because that claim attacks the fact of his continued confinement. But Mr. Basri's COVID-19-related claim cannot be asserted in a habeas petition. That he believes the Court is incapable of crafting relief that would safeguard his constitutional rights to basic protections from communicable disease is beside the point. He could have pursued such a claim in a civil-rights action. The Tenth Circuit is clear that the remedy of release is a required element of a habeas claim, but a habeas petition must also challenge the very fact (or duration) of the confinement under any circumstances. See Palma-Salazar , 677 F.3d at 1035 (prisoner "who challenges the fact or duration of his confinement and seeks immediate release or a shortened period of confinement, must do so through an application for habeas corpus" but one "who challenges the conditions of his confinement must do so through a civil rights action" (emphasis added)).
See also Doc. 1, ¶ 46 (alleging that "crowded conditions throughout the detention facility maximize the likelihood that COVID-19 will spread rapidly throughout the facility"); Id. ¶ 62 (characterizing the claim as whether the "conditions of confinement amount to punishment").
The consequences of Mr. Basri's position are significant. Not only would it turn the distinction crafted by the Tenth Circuit into nothing more than a pleading game, it would transform Section 2241 from a method by which federal courts can ensure that those in prison or detention are supposed to be there into one in which they continually oversee the operations of prisons. That too is an important job for the courts, in proper circumstances—but it is one to be carried out by civil rights actions, not habeas corpus. It is also worth noting that if the arguments of the Petition and Motion were accepted on this point, it would logically require the release of every detainee in the Detention Facility (and, presumably, most other detention facilities as well, given the extent of this pandemic).
While in his Reply, Mr. Basri has attempted to show why he is somewhat more at risk than other detainees, the Petition and Motion gave no reason to believe he had any greater risk than others in the Detention Facility.
Mr. Basri's premise is simply false. The conditions facing him and other detainees are undoubtedly serious and frightening. And he is right, as the government recognizes, that immigration officials have a duty to take reasonable measures to protect those in their custody from diseases. He may also be right that the Defendants are not doing enough to protect detainees—although they have provided significant evidence of their efforts. But if the conditions he describes disappeared tomorrow, Mr. Basri would have no habeas corpus claim on this basis. See Dawson v. Asher , No. C20-0409JLR-MAT, 2020 WL 1704324, at *8 (W.D. Wash. Apr. 8, 2020) ("If those alleged conditions [caused by COVID-19] could be remedied—notwithstanding Petitioners’ assertions that they cannot—Petitioners do not raise any separate challenge to the authority under which they were detained or the length of their detention.").
The Court acknowledges that other courts have reached different conclusions on this issue. Some have decided they have jurisdiction over similar petitions for writs of habeas corpus. See, e.g. , Lopez v. Lowe , No. 3:20-CV-563, 452 F.Supp.3d 150, 160, (M.D. Pa. Apr. 7, 2020), as amended (Apr. 9, 2020). But most of those decisions were dictated by binding circuit precedent that conditions-of-confinement claims can be asserted in habeas petitions. See Aamer v. Obama , 742 F.3d 1023, 1032 (D.C. Cir. 2014) ("Our precedent establishes that one in custody may challenge the conditions of his confinement in a petition for habeas corpus."); Woodall v. Fed. Bureau of Prisons , 432 F.3d 235, 242–44 (3d Cir. 2005) (same). In circuits like the Tenth, however—where binding Circuit precedent says conditions-of-confinement claims can't be asserted in habeas petitions—district courts have generally held that COVID-19-related habeas petitions are improper. See, e.g. , Gayle v. Meade , No. 20-21553, 2020 WL 1949737, at *25–26 (S.D. Fla. Apr. 22, 2020) (citing Gomez v. United States , 899 F.2d 1124, 1127 (11th Cir. 1990) ); Benavides v. Gartland , No. 5:20-CV-46, 2020 WL 1914916, at *5 (S.D. Ga. Apr. 18, 2020) (same); see also Toure v. Hott , No. 1:20-CV-395, 458 F.Supp.3d 387, 400–01 (E.D. Va. Apr. 29, 2020) (holding that a habeas action under 28 U.S.C. § 2241 does not serve as a proper remedy when challenging conditions of confinement in immigration detention in light of the coronavirus pandemic).
It is notable, however, that the Ninth Circuit recently stayed a district court decision granting a preliminary injunction to a class of immigration detainees in California who filed a habeas petition seeking immediate release. See Roman v. Wolf , No. 20-55436, 2020 WL 2188048 (9th Cir. May 5, 2020).
One exception is Essien v. Barr , No. 1:20-cv-1034-WJM, 457 F.Supp.3d 1008, 1013, 2020 WL 1974761 (D. Colo. Apr. 24, 2020), which held, in a COVID-19-related habeas petition, that "confinement itself is the unconstitutional ‘condition of confinement,’ " so the petitioner's claims could be asserted in a habeas petition. 457 F. Supp. 3d at 1013. That is an accurate description of the petitioners’ claims in these cases, but this Court does not agree that this makes them proper habeas corpus cases. Indeed, the precedents above compel the contrary result. When one is challenging the fact of confinement, a writ of habeas corpus is the proper remedy because it is illegal to hold the petitioner under any circumstances. But when one is challenging the conditions of confinement, the remedy is to require those conditions to be addressed. The means of doing so is, as the Tenth Circuit has made clear, a civil-rights suit, not a petition under Section 2241.
And as explained above, Mr. Basri isn't arguing, in this claim, that the very fact of detaining him, whatever the circumstances, is unconstitutional, and thus the writ of habeas corpus applies. He is, instead, arguing that the only way to remedy the currently unconstitutional circumstances of his confinement is by releasing him, and thus, he must be making a habeas corpus claim. His claim is clearly a conditions-of-confinement claim, driven entirely by current circumstances. If tomorrow a cure for COVID-19 were available, or if, say, the Detention Facility were able to provide Mr. Basri with a completely isolated, expertly staffed cell, he would have no claim for release even under his own theory. Which is to say that if the conditions of his confinement were different, he would have no basis to make this claim. That those changes may be unlikely does not alter the fact that it is the conditions, not the fact of his detention, he is challenging when he cites the undoubtedly dangerous condition of the spreading COVID-19 disease. Under binding circuit precedent, and consistent with the original meaning and purpose of the great writ, that means this is not a habeas corpus claim.
The parties’ back and forth about the constantly evolving facts of the pandemic and the Defendants’ response to it only highlights that this claim is driven by present conditions, not the fact of detention itself.
In the alternative, Mr. Basri says the Court could exercise jurisdiction over his request for immediate release under Bivens. Doc. 21 at 4; Doc. 1, ¶ 15 (asserting jurisdiction under 28 U.S.C. § 1331 ). But petitions like Mr. Basri's that seek immediate release cannot be asserted in Bivens actions. A petition for writ of habeas corpus is the exclusive means for such relief. See Heck v. Humphrey , 512 U.S. 477, 481, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) ("[H]abeas corpus is the exclusive remedy for a state prisoner who ... seeks immediate or speedier release."); Spina v. Aaron , 821 F.2d 1126, 1128 (5th Cir. 1987) (if a claim asserted under Bivens necessarily requires a plaintiff's release from custody, a petition for a writ of habeas corpus is the exclusive means available to the plaintiff, and a court cannot entertain the action).
At first blush, this does appear to put Mr. Basri in a Catch-22, and the Court understands why others have concluded they should entertain requests like this one either under Section 2241 or Bivens. But review of the relevant statutory provisions and caselaw shows this result is correct. Federal courts are authorized to order prisoners’ immediate release, but only via a proper habeas corpus petition. And a proper habeas petition is one that asserts that the prisoner cannot be confined under any circumstances. Since that is not what Mr. Basri has asserted here, his is not a proper habeas corpus petition, and the Court may not provide habeas corpus relief.
For prisoners serving a sentence of incarceration, Congress has provided an additional means for seeking release in 18 U.S.C. § 3582(c)(1)(A). That provision is known as the "compassionate release provision" and permits a sentence reduction if a court "finds that ‘extraordinary and compelling reasons warrant such a reduction’ and the ‘reduction is consistent with applicable policy statements issued by the Sentencing Commission.’ " United States v. Saldana , 807 F. App'x 816, 819 (10th Cir. 2020) (quoting 18 U.S.C. § 3582(c)(1)(A)(i) ).
That provision has been used by a number of inmates across the country to obtain precisely the relief sought here: release based on the dangers of the COVID-19 disease in custodial sentences. While it is not available to pretrial or immigration detainees like Mr. Basri, that is a policy choice Congress has made. The relevant point is that the remedy alone does not determine what constitutes a habeas case; compassionate release cases seek release from custody, but they are never considered habeas corpus cases because they are based on a different premise. Like Mr. Basri's claim, such claims are based on the effect of incarceration on the inmate, rather than the fact of it.
Mr. Basri is not left without means to redress the serious issues he has identified. For example, he could seek, in a Bivens action, injunctive relief that would require the government to promptly cure the allegedly unconstitutional conditions in the Detention Facility. See, e.g. , Wilson v. United States , 29 F. App'x 495, 496 (10th Cir. 2002) (considering claim against prison officials under Bivens ); Bistrian v. Levi , 696 F.3d 352, 372–75 (3d Cir. 2012) ( Bivens remedy assumed available for Fifth Amendment substantive due process claim challenging conditions of confinement). And, it could be that in practice, the government would decide that release of Mr. Basri or others is a better solution than other changes they might have to make in response to an injunction gained by proper means. But Mr. Basri cannot use the habeas corpus process to obtain the habeas corpus remedy without asserting the sine qua non of a habeas corpus case—an allegation that he cannot be legally confined under any circumstances. Since he has not, and since the relief he seeks cannot be obtained in a conditions-of-confinement action, the Court lacks jurisdiction over this claim.
While the Tenth Circuit calls this a jurisdictional question, it could also be considered a determination on the merits that the petitioner has failed to allege a plausible habeas corpus claim because he challenges the particular conditions and not the fact or duration of his confinement. But either way, the petition must be denied on this claim.
II. Request for Immediate Release Based on Inadequate Bond Hearings
In the alternative, Mr. Basri seeks a writ of habeas corpus securing his immediate release on the basis that, although Defendants provided him with two individualized bond hearings as they were permitted to do under 8 U.S.C. § 1226(a)(2), he bore the burden of proof in those bond hearings in violation of his Fifth Amendment right to due process of law. Doc. 6 at 22–27. He says that due process requires that the government, not the detainee, bear the burden of proof in immigration bond hearings. Unlike his virus-related claim, his bond-hearing claim does assert that the fact of his detention under any circumstances is unconstitutional. It, therefore, is properly asserted in a petition for a writ of habeas corpus under 28 U.S.C. § 2241. Soberanes v. Comfort , 388 F.3d 1305, 1308 (10th Cir. 2004) (considering challenge to immigration-detention determination in habeas petition).
Mr. Basri also seeks a preliminary injunction granting his immediate release while his Petition is pending before the Court. But because the Court denies his Petition on the merits, his Motion seeking a preliminary injunction is moot. The Court therefore denies the Motion.
A. Legal Framework
"Under federal immigration law, aliens present in this country may be removed if they fall ‘within one or more ... classes of deportable aliens.’ " Nielsen v. Preap , ––– U.S. ––––, 139 S. Ct. 954, 959, 203 L.Ed.2d 333 (2019) (quoting 8 U.S.C. § 1227(a) ). This case primarily concerns one provision governing the arrest, detention, and removal of aliens, like Mr. Basri, who are subject to removal, 8 U.S.C. § 1226. Section 1226 provides, as a general matter, that an alien subject to removal can be detained pending his removal proceedings: "On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States." Id. § 1226(a). This detention is mandatory if the alien has committed certain crimes. Id. § 1226(c) ("The Attorney General shall take into custody any alien who" has committed certain crimes.). For all other aliens subject to removal, Section 1226(a) gives the Attorney General discretion to either detain the alien during his removal proceedings or release him on a bond not less than $1,500:
Except as provided in subsection (c) and pending such decision, the Attorney General
(1) may continue to detain the arrested alien; and
(2) may release the alien on—
(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General.
Id. § 1226(a); see also Nielsen , 139 S. Ct. at 959 ( Section 1226(a) "generally gives the Secretary the discretion either to detain the alien or to release him on bond or parole." (emphasis omitted)). Despite the discretion provided by statute, "federal regulations provide that aliens detained under [ Section] 1226(a) receive bond hearings at the outset of detention." Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 847, 200 L.Ed.2d 122 (2018) (citing 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1) ). The parties agree that Mr. Basri is being detained under Section 1226(a), not Section 1226(c), and that he was provided with two bond hearings.
For more than two decades, the Board of Immigration of Appeals has required an alien who appears for a bond proceeding to bear the burden of proof that his "release would not pose a danger to property or persons, and that he is likely to appear for any future proceedings." In re Adeniji , 22 I. & N. Dec. at 1116. Mr. Basri says this ruling has the burden of proof backwards. According to Mr. Basri, the government, not the alien, should bear the burden to prove he is a danger or flight risk. Mr. Basri argues that this reversal violates the Due Process Clause of the Fifth Amendment.
The Fifth Amendment prohibits the federal government from depriving any person "of life, liberty, or property, without due process of law." Aliens, like Mr. Basri, are entitled to due-process protections in removal proceedings. See Reno v. Flores , 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). But the process due a deportable alien is less than in other civil-detention contexts. This is because "any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government." Demore v. Kim , 538 U.S. 510, 522, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (quoting Mathews v. Diaz , 426 U.S. 67, 81 n.17, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) ). Given the important interests at stake in the conduct of our immigration laws, the Supreme Court has explained that, "in the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens." Id. at 521, 123 S.Ct. 1708 (quoting Mathews , 426 U.S. at 79–80, 96 S.Ct. 1883 ); see also id. at 522, 123 S.Ct. 1708 ("This Court has firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens." (collecting cases)). So, for example, detention during such proceedings is a constitutionally valid aspect of the process, even where an alien challenges his detention on the ground that there has been no finding that he is unlikely to appear for his or her deportation proceedings. Id. at 523–24, 123 S.Ct. 1708 (citing Wong Wing v. United States , 163 U.S. 228, 235, 16 S.Ct. 977, 41 L.Ed. 140 (1896), Carlson v. Landon , 342 U.S. 524, 538, 72 S.Ct. 525, 96 L.Ed. 547 (1952) ); see also id. at 526, 123 S.Ct. 1708 (noting the "Court's longstanding view that the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings").
This broad view of congressional and executive power over immigration has been borne out in nearly every recent Supreme Court decision addressing due-process challenges to pre-removal detention. Two of those decisions are particularly important for this case: Demore and Jennings. In Demore , the Court held that the Fifth Amendment does not require a bond hearing for an alien detained under Section 1226(c). 538 U.S. at 531, 123 S.Ct. 1708. As noted above, the Court explained that it had long viewed detention during removal as constitutionally permissible. Id. And detention without bond under Section 1226(c) was particularly justified because that provision "serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed." Id. at 528, 123 S.Ct. 1708. And in Jennings , the Court considered whether, as the Ninth Circuit had held, construing 8 U.S.C. Sections 1225(b), 1226(a), and 1226(c) under the canon of constitutional-avoidance, an alien detained under Section 1226(a) must be given a bond hearing at which the government must prove, by clear and convincing evidence, that the alien is a flight risk or a danger to the community. 138 S. Ct. at 836. The Court ruled that the constitutional-avoidance canon doesn't apply to Section 1226(a) because the text of Section 1226(a) is unambiguous: it doesn't require either periodic bond hearings or that the government bear the burden of proof. Id. at 847–48 ("Nothing in [ Section] 1226(a) ’s text—which says only that the Attorney General ‘may release’ the alien ‘on ... bond’—even remotely supports the imposition of either of those requirements."). Because the Ninth Circuit had improperly applied the constitutional-avoidance canon, the Supreme Court remanded the case for the circuit to consider the constitutional issues in the first instance. Id. at 851.
The exception to the Supreme Court's broad view of congressional and executive power in the area of immigration is Zadvydas v. Davis , 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). There, the Court applied the constitutional-avoidance canon to 8 U.S.C. § 1231(a)(6), which governs detention of an alien after removal, and ruled that an alien who has been ordered removed may not be detained beyond "a period reasonably necessary to secure removal," so as to avoid potential Fifth Amendment problems. Id. at 699, 121 S.Ct. 2491. It is increasingly clear, however, that Zadvydas is a narrow decision. For one thing, Zadvydas presented an extreme situation: an alien facing possibly unlimited post-removal detention. Demore , 538 U.S. at 528, 123 S.Ct. 1708. And in Jennings , the Court cautioned that " Zadvydas represents a notably generous application of the constitutional-avoidance canon" that provides no "license to graft" constitutional protections onto the unambiguous text of Section 1225(b). 138 S. Ct. at 843.
These decisions offer several principles to guide the Court in assessing due-process challenges to pre-removal detention such as Mr. Basri's. Congress and the executive have broad power in pre-removal proceedings against aliens potentially subject to removal. This is because immigration implicates "foreign relations, the war power, and the maintenance of a republican form of government," Demore , 538 U.S. at 528, 123 S.Ct. 1708 —powers the exercise of which are uniquely ill-suited to judicial review. Given this, the role of the judicial branch is reduced, and rules and procedures that might run afoul of the Constitution if applied to citizens in other contexts don't apply to aliens subject to pre-removal detention.
B. Burden of Proof in Pre-Removal Bond Proceedings
In the light of these principles, the Fifth Amendment clearly does not require the government to bear the burden of proof in bond proceedings. Under Demore , the government can detain an alien without bond for the entirety of his removal proceedings. The lack of a bond hearing, in other words, doesn't offend the Constitution. It necessarily follows that, if the government chooses to provide a detainee, like Mr. Basri, with a bond hearing, the Constitution dictates no specific procedures in that proceeding, including any specific allocation of the burden of proof. To be sure, the holding in Demore was based at least in part on the fact that Section 1226(c) mandates detention for certain classes of criminal aliens only. But Demore ’s conclusion was broader than this justification: "detention during removal proceedings is a constitutionally permissible part of that process." Demore , 538 U.S. at 531, 123 S.Ct. 1708. And in any event, Jennings also strongly suggests that the Fifth Amendment doesn't require the government bear the burden of proof in bond proceedings. Jennings , 138 S. Ct. at 836. These decisions, combined with the Supreme Court's broad view of congressional and executive power in immigration proceedings, indicate that Mr. Basri's bond proceedings did not violate his constitutional right to due process.
Mr. Basri's primary argument to the contrary is based on a spate of district court decisions that represent an emerging "consensus view that where, as here, the government seeks to detain an alien pending removal proceedings, it bears the burden of proving that such detention is justified." Darko v. Sessions , 342 F. Supp. 3d 429, 435 (S.D.N.Y. 2018) (collecting cases). But those decisions rely on a broad reading of Zadvydas , which, as explained, has largely been limited to its facts, see, e.g. , Linares Martinez v. Decker , No. 18-CV-6527 (JMF), 2018 WL 5023946, at *3 (S.D.N.Y. Oct. 17, 2018), and a narrow view of Demore , see id. at *4. But particularly in light of the Supreme Court's decision in Jennings , this Court is not persuaded by these cases.
The Supreme Court has been clear and consistent that the Constitution requires lesser procedural protections for aliens subject to removal, and a concomitantly lesser role for judicial intervention in the detention process. A particular allocation of the burden of proof based on a judicial presumption that detention is illegal unless proven otherwise isn't one of those protections. Mr. Basri's claim that he was denied due process in the two bond proceedings provided him by the government thus fails on the merits.
CONCLUSION
For the foregoing reasons, it is ORDERED that Mr. Basri's Petition (Doc. 1) is DENIED and his Motion (Doc. 6) is DENIED AS MOOT .