Opinion
Civil Case No.: 7:20-CV-93 (HL)
2020-11-16
J.G., Petitioner, v. WARDEN, IRWIN COUNTY DETENTION CENTER, et al., Defendant.
ORDER
This case is before the Court on the Recommendation of United States Magistrate Judge Stephen Hyles regarding Petitioner Jinxu Gao's habeas application. (Doc. 30). The Magistrate Judge recommends dismissing each of Petitioner's habeas claims. (Id. ). Petitioner timely objected to the Magistrate Judge's Recommendation. (Doc. 31). On October 29, 2020, this Court held oral argument via Zoom concerning Petitioner's objections. (Docs. 36, 37). The Court examined the record in this case, and with the benefit of oral argument, made a de novo review of the Recommendation. The Court concludes that placing the burden of proof on Petitioner at his bond hearing violated the Fifth Amendment's Due Process Clause. Accordingly, the Court rejects the Recommendation and GRANTS in part Petitioner's application for habeas relief.
Petitioner raised several other claims in his habeas application. (Doc. 1). Because the Court finds Petitioner was entitled to relief regarding his due process claim, it will not discuss Petitioner's other arguments.
I. FACTUAL BACKGROUND
Petitioner does not object to the Recommendation's factual findings. The Court adopts the Recommendation's background and will briefly summarize the facts here. Petitioner is a 52-year-old citizen of the People's Republic of China. He was admitted to the United States legally on a valid B-1 visa as a temporary visitor conducting business. His visa expired on October 18, 2014, and he continued to reside in the United States unlawfully. On December 2, 2018, a U.S. Immigration and Customs Enforcement ("ICE") officer took Petitioner into custody following a traffic offense.
Petitioner received a bond hearing before an immigration judge ("IJ") at the Atlanta Immigration Court on January 22, 2019. (Doc. 1-7, p. 2). The IJ denied bond, finding that Petitioner failed to meet his burden to demonstrate that he was not a flight risk. (Id. at p. 5). The IJ's decision was based solely on risk of flight; the IJ did not suggest that Petitioner posed a danger to the community. (Id. ).
During the same time Petitioner sought release on bond, his asylum application was also under review. He filed his application for asylum on January 8, 2019. That application was denied on February 15, 2019, and the IJ ordered Petitioner to be removed to China. Petitioner appealed the denial of his asylum application to the Board of Immigration Appeals ("BIA"). On August 9, 2019, the BIA affirmed in part and reversed in part the IJ's denial of Petitioner's asylum application. (Doc. 1-3). The BIA remanded the case to the IJ for further proceedings. (Id. ).
On February 14, 2020, Petitioner filed a motion for a bond redetermination hearing, arguing that the remand from the BIA materially changed his circumstances. An IJ rejected this argument and denied Petitioner's motion for a second bond hearing. (Doc. 1-9).
In accordance with the BIA's decision to remand Petitioner's asylum application, an IJ conducted evidentiary hearings. On April 10, 2020, his asylum application was denied, and an IJ again ordered him to be removed to China. (Doc. 1-4, p. 13). Petitioner appealed this decision to the BIA on May 8, 2020. (Doc. 1-5). His appeal is currently pending. Throughout the immigration proceedings, ICE detained Petitioner at Irwin County Detention Center. Petitioner never received a subsequent bond hearing after his initial request for bond was denied nearly two years ago.
II. DISCUSSION
Petitioner claims he never received a constitutional bond hearing because allocating the burden of proof to noncitizens to demonstrate whether they are a flight risk or danger to the community violates due process. The Recommendation concluded that the available immigration bond procedures afforded Petitioner a meaningful opportunity to be heard. Petitioner objects to the Recommendation's analysis.
The Due Process clause establishes that "[n]o person shall be ... deprived of ... liberty ... without due process of law." U.S. Const. amend. V. "Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects." Zadvydas v. Davis , 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). But an individual's "liberty interest is not absolute." Kansas v. Hendricks , 521 U.S. 346, 356, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). "[A]n individual's constitutionally protected interest in avoiding physical restraint may be overridden even in the civil context." Id.
Civil detention during removal proceedings is authorized by federal law and generally permitted under the Constitution. See Demore v. Kim , 538 U.S. 510, 523, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). Limitations like the Due Process Clause, however, restrict the Government's power to detain noncitizens. Id. ; see Frech v. U.S. Att'y Gen. , 491 F.3d 1277, 1281 (11th Cir. 2007) ("It is well settled that individuals in deportation proceedings are entitled to due process of law under the Fifth Amendment.") (citing Reno v. Flores , 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) ). Courts must review immigration procedures and ensure that they comport with the Constitution—notwithstanding the fact that "Congress regularly makes rules that would be unacceptable if applied to citizens." Demore , 538 U.S. at 521, 123 S.Ct. 1708 ; see id. at 547 n.9, 123 S.Ct. 1708 (Souter, J., concurring in part and dissenting in part) ("The statement that ... ‘Congress regularly makes rules that would be unacceptable if applied to citizens’ cannot be read to leave limitations on the liberty of aliens unreviewable." (citation omitted)); see also Zadvydas , 533 U.S. at 695, 121 S.Ct. 2491 ("Congress has ‘plenary power’ to create immigration law, ... [b]ut that power is subject to important constitutional limitations."). Petitioner's habeas claim asserts that the Government's immigration bond procedure is unconstitutional. Specifically, he argues that allocating the burden of proof to the noncitizen to determine his release or detention pending removability proceedings violates the Due Process Clause.
A. Immigration Bond Under § 1226(a)
The Government is detaining Petitioner as a non-criminal noncitizen awaiting a final decision as to whether the Government will order him to be removed. The statute authorizing Petitioner's detention is 8 U.S.C. § 1226(a). Under § 1226(a), detention is discretionary; an IJ may release a noncitizen on bond during this period pending resolution of removal proceedings. The IJ may also set conditions of release such as subjecting the noncitizen to electronic monitoring. 8 U.S.C. § 1226(a)(2). Finally, the IJ may choose to detain a noncitizen pending resolution of removal proceedings. 8 U.S.C. § 1226(a)(1).
This section applies equally to noncitizens who have not received an order of removal and noncitizens like Petitioner who are appealing an order of removal to the BIA. See 8 C.F.R. § 1241.1 (describing when an order of removal becomes final).
The statute provides no guidance as to how IJs make discretionary bond determinations. Section 1226(a) is silent as to whether the Government or the noncitizen bears the burden of proof. To fill this gap, the BIA adopted 8 C.F.R. § 236.1(c)(8) ’s standard for release. Matter of Adeniji , 22 I. & N. Dec. 1102, 1113 (B.I.A. 1999). The regulation, promulgated by the Immigration and Naturalization Service ("INS"), allows "[a]ny officer authorized to issue a warrant of arrest" to release the noncitizen provided that he "must demonstrate to the satisfaction of the officer that such release would not pose a danger to property or persons, and that [he] is likely to appear for any future proceeding." 8 C.F.R. § 236.1(c)(8). The noncitizen carries the burden to prove that he is not a flight risk or danger to the community, and the standard of proof is "to the satisfaction of the officer" executing the arrest warrant. Id. The regulation applies only to officials issuing arrest warrants for immigration violations. Id. ; 8 C.F.R. §§ 236.1(b), 287.5(e)(2). As written, this regulation does not apply to IJs determining release at bond hearings. See Matter of Adeniji , 22 I. & N. Dec. at 1112 ("An Immigration Judge is not authorized to issue a warrant of arrest."). Nevertheless, the BIA concluded that 8 C.F.R. § 236.1(c)(8) provided the appropriate standard "for ordinary bond determinations" under 8 U.S.C. § 1226(a). Matter of Adeniji , 22 I. & N. Dec. at 1113. Thus, at a § 1226(a) bond hearing, a noncitizen must demonstrate that his release would not pose a danger to the community and that he is likely to appear "even though [ § 1226(a) ] does not explicitly contain such [ ] requirement[s]." Matter of Adeniji , 22 I. & N. Dec. at 1113. 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. Neither the Supreme Court nor the Eleventh Circuit have resolved this issue. Other courts around the country that have considered the burden of proof at immigration bond hearings are split. The Third Circuit stated it "perceive[d] no problem" with noncitizens bearing the burden of proof under § 1226(a). Borbot v. Warden Hudson Cty. Corr. Facility , 906 F.3d 274, 279 (3d Cir. 2018). The Ninth Circuit found that noncitizens detained under § 1226(a) are "entitled to release on bond unless the government establishes that he is a flight risk or will be a danger to the community." Casas-Castrillon v. Dep't of Homeland Sec. , 535 F.3d 942, 951 (9th Cir. 2008) (internal quotation marks and citation omitted); see Singh v. Holder , 638 F.3d 1196, 1203 (9th Cir. 2011) ("[T]he burden of establishing whether detention is justified falls on the government."). Most recently, the Second Circuit also concluded that placing the burden of proof on the government was proper. Velasco Lopez v. Decker , 978 F.3d 842, 853–56 (2d Cir. 2020). This Court joins the Ninth and Second Circuits as well as "the overwhelming majority of district courts" that hold the Government must bear the burden of proof to justify a noncitizen's detention pending removal proceedings. Hernandez-Lara v. Immigr. & Customs Enf't, Acting Dir. , No. 19-cv-394-LM, 2019 WL 3340697, at *3 (D.N.H. July 25, 2019) ; see, e.g., Dubon Miranda v. Barr , 463 F. Supp. 3d 632, 646–47 (D. Md. 2020) ; Pensamiento v. McDonald , 315 F. Supp. 3d 684, 692 (D. Mass. 2018).
The Recommendation and the Government both cite to Sopo v. United States Attorney General , 825 F.3d 1199 (11th Cir. 2016) for support. The Eleventh Circuit vacated this opinion in 2018; it has no precedential value. Sopo v. U.S. Att'y Gen. , 890 F.3d 952, 954 (11th Cir. 2018). Furthermore, it did not resolve the present issue. Sopo asked whether due process required IJs to afford bond hearings to criminal noncitizens detained under 8 U.S.C. § 1226(c). 825 F.3d at 1202. The Eleventh Circuit was explicit that there was "no separate constitutional challenge ... to the bond regulations ... that apply to non-criminal aliens." Id. at 1219 n.10.
For noncitizens detained for an unreasonable time under § 1226(c), however, the Third Circuit has "already held that the Government bears the burden of proof" when a court orders an individualized bond hearing. German Santos v. Warden Pike Cty. Corr. Facility , 965 F.3d 203, 213 (3d Cir. 2020).
B. Mathews v. Eldridge Test
The Court applies the Mathews v. Eldridge three-factor balancing test to evaluate the immigration bond procedure. 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The three factors are: (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, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural safeguard would entail." Id. Courts balance the private and governmental interests at stake to determine whether the procedures provided comply with the constitutional demands of due process. Ultimately, that balance requires courts to discern "when, under our constitutional system, judicial-type procedures must be imposed upon administrative action to assure fairness." Id. at 348, 96 S.Ct. 893 ; see also Landon v. Plasencia , 459 U.S. 21, 34, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982) ("[C]ourts must evaluate the particular circumstances and determine what procedures would satisfy the minimum requirements of due process ....").
1. Private Interest
Petitioner does not object to the Recommendation's finding that the "first factor weighs in Petitioner's favor." Nevertheless, it bears emphasizing: Petitioner's private interest at stake—freedom from physical incarceration—is a fundamental liberty interest. See Hamdi v. Rumsfeld , 542 U.S. 507, 529, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) ("[T]he most elemental of liberty interests [is] the interest in being free from physical detention ...."). The Supreme Court has "always been careful not to ‘minimize the importance and fundamental nature’ of the individual's right to liberty." Foucha v. Louisiana , 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) (quoting United States v. Salerno , 481 U.S. 739, 750, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ).
The Government tries to downplay Petitioner's liberty interest. It urges the Court to ignore non-immigration, civil confinement cases, claiming that they are inapplicable in the immigration context. This argument belies the fact that the Supreme Court regularly relies upon civil commitment cases to inform its due process analysis in immigration cases. See Zadvydas , 533 U.S. at 690, 121 S.Ct. 2491 (quoting Foucha , 504 U.S. at 80, 112 S.Ct. 1780 and Hendricks , 521 U.S. at 356, 117 S.Ct. 2072 ); Demore , 538 U.S. at 561, 123 S.Ct. 1708 (Souter, J., concurring in part and dissenting in part) ("[T]he analytical framework set forth in Salerno, Foucha, Hendricks , Jackson , and other physical confinement cases applies ...."). Furthermore, the Supreme Court "is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection." Foucha , 504 U.S. at 80, 112 S.Ct. 1780 (emphasis added) (quoting Jones v. United States , 463 U.S. 354, 361, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983) ). Thus, immigration detention is an extraordinary liberty deprivation that must be "carefully limited." Salerno , 481 U.S. at 755, 107 S.Ct. 2095.
Petitioner has been incarcerated for nearly two years without a criminal conviction or final order of removal lodged against him. Rather, prolonged immigration proceedings have stalled his removal case. Petitioner's appeal of the denial of his asylum application is currently pending at the BIA. At oral argument before this Court, the Government surmised that the BIA likely requires an additional year to resolve Petitioner's appeal and conclude his removal case. (Doc. 37, pp. 47–48).
The Court asked the Government to "guess" how much longer Petitioner's removal proceedings would continue. (Doc. 37, pp. 47–48). The Government responded that the proceedings would take a year to complete and added that proceedings could continue for a longer or shorter amount of time, depending on the posture of Petitioner's case following a decision from the BIA. (Id. ).
Petitioner has already experienced a severe liberty deprivation. Two years of immigration detention imitates the Government's punishment of individuals convicted of serious offenses. See 18 U.S.C. § 3156(a)(2) (" ‘[F]elony’ means an offense punishable by a maximum term of imprisonment of more than one year ...."); 18 U.S.C. § 924(e)(2)(B) (" ‘[V]iolent felony’ means any crime punishable by imprisonment for a term exceeding one year ...."); 18 U.S.C. § 3559(a). Petitioner now faces a third year of incarceration—though the Government has "no ... punitive interest" in civil confinement, and he "may not be punished." Foucha , 504 U.S. at 80, 112 S.Ct. 1780. The first Mathews factor weighs heavily in Petitioner's favor.
2. Risk of Erroneous Deprivation
Petitioner objects to the Recommendation's finding that the second Mathews factor favors the Government. This factor is "the risk of an erroneous deprivation of such [private] interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards." Mathews , 424 U.S. at 335, 96 S.Ct. 893. "[A]t this stage in the Mathews calculus, [the Court] consider[s] the interest of the erroneously detained individual." Hamdi , 542 U.S. at 529, 124 S.Ct. 2633.
The risk of an erroneous deprivation under the bond procedure is high. The current scheme places the onus on noncitizens who are incarcerated to gather and present evidence regarding their flight risk or potential danger. Incarceration restricts the noncitizen's ability to communicate with attorneys, family members, or other individuals who may present testimony or have access to the noncitizen's records. Limited resources and investigative tools increase the likelihood that the factual record developed at the bond hearing will be incomplete. An incomplete record creates a considerable risk of error in the IJ's findings and impairs the BIA's ability to correct erroneous deprivations.
The Government is not required to present a shred of evidence, yet it has substantial resources available. Federal law requires the Government to collect and maintain immigration data. See, e.g. , 8 U.S.C. §§ 1365a, 1376, 1377, 1377a, 1378, 1378a, 1226(d) ; see also 8 C.F.R. § 103.16(a). Federal law also ensures that ICE, DHS, and the Department of Justice ("DOJ") share information through interagency databases. See, e.g. , 8 U.S.C. §§ 1360, 1722. The Government is not limited to federal resources. State and local authorities may cooperate and share their information with federal agencies. 8 U.S.C. §§ 1373, 1357(g).
DHS maintains several databases that contain immigration records documenting removals, arrests, detentions, naturalization applications, and noncitizen status information. See Split Rail Fence Co. v. United States , 852 F.3d 1228, 1241–42 (10th Cir. 2017) (describing various databases that DHS operates).
Not all information available to the Government is publicly accessible, or it would be difficult to obtain promptly. See, e.g. , 8 U.S.C. §§ 1722(a)(5)–(6), 1229a(b)(4)(B). As Petitioner argued before this Court, noncitizens seeking immigration records other than their own generally cannot access them without a request under the Freedom of Information Act ("FOIA"). Even when a FOIA request is made, the Government can block disclosure of immigration documents under FOIA's exemptions. 5 U.S.C. § 552(b) ; see, e.g., Mezerhane de Schnapp v. U.S. Citizenship & Immigr. Servs. , 67 F. Supp. 3d 95, 100 (D.D.C. 2014) (withholding immigration data under FOIA's law enforcement exemption).
The Government expends substantial resources tracking noncitizens and collecting their private information. It faces few obstacles in obtaining evidence required to demonstrate whether a noncitizen is a flight risk or danger to the community. Perhaps the Government lacked sufficient information when the ICE officer initially decided to detain Petitioner. But he was incarcerated over a month before he appeared before the IJ for his bond hearing. During that time, the Government had ample opportunity to gather, prepare, and present evidence concerning Petitioner's risk of flight.
The Government argues the current bond procedure is constitutionally sufficient because IJs have broad discretion to consider relevant information when determining bond, and a noncitizen may seek further agency review at the BIA or a subsequent bond determination hearing. The fact that an IJ can consider any relevant evidence does little to ameliorate the challenges an incarcerated noncitizen faces in gathering and presenting evidence. If the noncitizen carries the burden of proof and is unable to present evidence, then the IJ's broad discretion is meaningless. Additionally, the review procedures do not sufficiently mitigate the risk of an erroneous deprivation because the administrative review process takes several months to conclude. See Mathews , 424 U.S. at 341–42, 96 S.Ct. 893 ("[T]he possible length of wrongful deprivation ... is an important factor in assessing the impact of official action on the private interests.") (quoting Fusari v. Steinberg , 419 U.S. 379, 389, 95 S.Ct. 533, 42 L.Ed.2d 521 (1975) ). Petitioner was taken into ICE custody on December 2, 2018. The IJ denied his bond request on January 22, 2019; he appealed, and the BIA affirmed the IJ's denial of bond on August 7, 2019. This process took just over eight months—during which Petitioner experienced a significant liberty deprivation. Petitioner's experience is not unusual. He presented evidence showing that the BIA appeals process generally takes six months. (Doc. 1-6, p. 2).
The bond redetermination procedure also does not provide a meaningful opportunity to correct an erroneous deprivation. To receive a subsequent bond redetermination hearing, the noncitizen must first demonstrate that his "circumstances have changed materially." 8 C.F.R. § 1003.19(e) ; 8 C.F.R. § 236.1(d)(1). A showing of materially changed circumstances secures only a second bond hearing ; it does not guarantee the noncitizen's release. The additional hurdle to prove materially changed circumstances makes relief more remote. And of course, not all erroneously deprived noncitizens will have access to this relief. Absent changed circumstances, a noncitizen will never receive a second bond hearing. This outcome befell Petitioner. The IJ concluded that his circumstances had not materially changed, so he never received another bond hearing. (Doc. 1-9, p. 2).
Even if a subsequent bond hearing is granted, an incarcerated noncitizen faces the same problems he encountered at his first bond hearing: lack of resources to prove his case. Appeal to the BIA following denial of bond redetermination potentially entails another six months of incarceration while awaiting the BIA's decision.
The immigration bond procedure and available administrative review do not abate the high risk of erroneous deprivation. Where the risk of erroneous deprivation is high, and the deprivation the individual faces is severe, then modest, additional procedural safeguards carry high value. Shifting the burden of proof underscores the importance of the IJ's decision and can reduce the chances that erroneous detentions will be ordered. Addington v. Texas , 441 U.S. 418, 426, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). The second Mathews factor weighs in Petitioner's favor.
3. Government Interest
The third Mathews factor is "the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews , 424 U.S. at 335, 96 S.Ct. 893. Petitioner objects to the Recommendation's finding that this factor weighs "heavily" in favor of the Government. (Doc. 30, p. 7).
To comply with due process, the Government must point to "a special justification ... [that] outweighs the ‘individual's constitutionally protected interest in avoiding physical restraint.’ " Zadvydas , 533 U.S. at 690, 121 S.Ct. 2491 (quoting Hendricks , 521 U.S. at 356, 117 S.Ct. 2072 ). The Recommendation notes the Government's "interest in efficient administration of the immigration laws at the border." Landon , 459 U.S. at 34, 103 S.Ct. 321. While the Government's power over immigration law is probably at its height at the border, those government interests do not justify Petitioner's detention.
Supreme Court due process jurisprudence distinguishes between noncitizens seeking initial entry to the United States at the border and those who entered the country legally. See Zadvydas , 533 U.S. at 693, 121 S.Ct. 2491 ("The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law."); Dep't of Homeland Sec. v. Thuraissigiam , ––– U.S. ––––, 140 S.Ct. 1959, 1982–83, 207 L.Ed.2d 427 (2020) (discussing the "century-old rule regarding the due process rights of an alien seeking initial entry"). "Any analysis of the constitutional rights of [noncitizens] in the immigration context must begin by taking note of th[is] fundamental distinction ...." Jean v. Nelson , 727 F.2d 957, 967 (11th Cir. 1984). A noncitizen "seeking initial admission to the United States ... has no constitutional rights regarding his application, for the power to admit or exclude [noncitizens] is a sovereign prerogative." Landon , 459 U.S. at 32, 103 S.Ct. 321. In contrast, "once [a] [noncitizen] gains admission to our country ... his constitutional status changes accordingly." Id. ; see Thuraissigiam , 140 S.Ct. at 1983 ("[A]n alien [detained at the border] has only those rights regarding admission that Congress has provided by statute.... [T]he Due Process Clause provides nothing more ....).
Petitioner was admitted to the United States legally and overstayed his previously-valid visa. He thus receives procedural protections not afforded to noncitizens seeking initial entry, and the Government's interest in controlling admission of noncitizens at the border does not justify his detention. See Zadvydas , 533 U.S. at 695, 121 S.Ct. 2491 (declining "to consider the political branches’ authority to control entry into the United States").
Nonetheless, the Court recognizes that civil detention pending removal proceedings can serve the legitimate government interest of preventing noncitizens from fleeing the country. Demore , 538 U.S. at 528, 123 S.Ct. 1708. Detention "prior to or during their removal proceedings ... increas[es] the chance that, if ordered removed, the [noncitizens] will be successfully removed." Id. On the other hand, the Government has no interest in detaining a noncitizen who does not pose a flight risk. See Addington , 441 U.S. at 426, 99 S.Ct. 1804 ("[T]he State has no interest in confining individuals involuntarily if they are not mentally ill or if they do not pose some danger to themselves or others."). And currently, whether Petitioner's detention is serving the Government's purpose of preventing him from absconding is unclear.
Demore considered due process rights under 8 U.S.C. § 1226(c), which requires mandatory detention for noncitizens convicted of a crime. 538 U.S. at 527–28, 123 S.Ct. 1708. The Supreme Court relied upon "evidence suggesting that permitting discretionary release ... would lead to large numbers of deportable criminal aliens skipping their hearings and remaining at large in the United States unlawfully." Id. at 528, 123 S.Ct. 1708 ; see id. at 519, 123 S.Ct. 1708 ("Once released, more than 20% of deportable criminal aliens failed to appear for their removal hearings."). Neither party cites nor suggests at what rates non-criminal detainees, such as Petitioner, abscond pending their removal proceedings. See id. at 552, 123 S.Ct. 1708 (Souter, J., concurring in part and dissenting in part) ("[D]etaining an alien requires more than the rationality of a general detention statute; any justification must go to the alien himself.").
The Government also has a strong interest in avoiding erroneous deprivations of liberty. Incarceration that serves no legitimate purpose wastes taxpayers’ money and hinders judicial efficiency. See Mathews , 424 U.S. at 348, 96 S.Ct. 893 ("[T]he Government's interest, and hence that of the public, in conserving scarce fiscal and administrative resources is a factor that must be weighed.").
According to ICE's estimates, immigration detention costs taxpayers approximately $134 per person, per day. Dep't of Homeland Sec. , U.S. Immigration and Customs Enforcement Budget Overview 14 (2018). To date, Petitioner's incarceration has cost approximately $95,810.
In 2018, the immigration courts received 91,291 bond matters, exceeding the previous year's bond statistics by nearly 13,000 matters. Exec. Office for Immigr. Rev. , Dep't of Just. , Statistics Yearbook 9 (2018). The number of bond matters before immigration courts has increased by over 30,000 since 2014. Id. In 2018, the BIA received 3,576 bond appeals. Id. at 36.
Shifting the burden of proof to the Government would serve both the Government's interest in preventing noncitizens from absconding and limiting the resources expended on erroneous deprivations. As discussed above, ICE and DHS document noncitizens’ private information and access records maintained by other federal agencies and local law enforcement departments. Funds saved by not housing noncitizens suffering erroneous liberty deprivations would likely outweigh the fiscal burdens of accessing and presenting evidence at a bond hearing. And conserving judicial resources may reduce the six-month delay in BIA decisions. The Government does not argue that the additional administrative burden would interfere with achieving its interests.
Weighing the Government's interests and finding the fiscal and administrative burdens to be minimal, the Court concludes that the third factor is neutral. It favors neither the Government nor Petitioner.
On balance, the Court concludes that Petitioner's incarceration—without the Government showing any evidence to justify it—violated Petitioner's right to due process of law. To address the violation, the Court orders a second bond hearing with the burden of proof placed on the Government. Shifting the burden to the Government is appropriate given the Constitutional interests at stake and the possible injury in the event of an erroneous deprivation. Furthermore, the Supreme Court's due process principles support such a procedural requirement. See, e.g., Foucha , 504 U.S. at 81–82, 112 S.Ct. 1780 (concluding that Louisiana's "scheme of confinement" violated due process because "the State need prove nothing to justify continued detention, for the statute places the burden on the detainee to prove that he is not dangerous"); Addington , 441 U.S. at 427, 99 S.Ct. 1804 ("[T]he individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state.").
The Recommendation and the Government both cite to Jennings v. Rodriguez , ––– U.S. ––––, 138 S.Ct. 830, 200 L.Ed.2d 122 (2018) for support. But it has no bearing on Petitioner's claims because the Supreme Court expressly declined to address the constitutional issues that are currently before this Court. See id. at 851 ("[T]he Court of Appeals ... had no occasion to consider respondents’ constitutional arguments on their merits.... [W]e do not reach those arguments.").
4. Standard of Proof
Having concluded that the Government must bear the burden of proof, the Court now turns to the appropriate standard of proof. "The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision." Id. at 423, 99 S.Ct. 1804. As discussed above, civil confinement is a significant liberty deprivation. Accordingly, the Supreme Court assigns to the Government the "clear and convincing" standard of proof in civil confinement cases. Id. at 432–33, 99 S.Ct. 1804 ; Foucha , 504 U.S. at 86, 112 S.Ct. 1780. Circuit courts considering the standard of proof in the immigration bond context have also adopted the clear and convincing standard. See Velasco Lopez , 978 F.3d at 855 ("[C]lear and convincing standard was appropriate [at subsequent bond hearing]."); Singh , 638 F.3d at 1203 ("[T]he government must prove by clear and convincing evidence that an alien is a flight risk ... to justify denial of bond ...."). This Court will do the same.
The clear and convincing standard strikes the appropriate balance between avoiding erroneous deprivations and detaining noncitizens who legitimately pose a flight risk. See Addington , 441 U.S. at 431, 99 S.Ct. 1804 ("[Clear and convincing standard] strikes a fair balance between the rights of the individual and the legitimate concerns of the state."). In civil confinement cases, "due process places a heightened burden of proof on the State" because "the individual interests at stake are both particularly important and more substantial than mere loss of money." Cooper v. Oklahoma , 517 U.S. 348, 363, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) (quotation marks and citation omitted). Therefore, the preponderance of the evidence standard typically assigned to resolve "monetary dispute[s] between private parties" is inappropriate. Addington , 441 U.S. at 423, 99 S.Ct. 1804. In criminal cases, "our society imposes almost the entire risk of error upon itself" because the Government asserts its punitive interests. Id. at 424, 99 S.Ct. 1804. The higher, reasonable doubt standard is also inappropriate for immigration bond procedure. The Court concludes that an "intermediate standard," requiring clear and convincing evidence "reflects the value society places on [the] individual liberty" at stake in immigration bond hearings. Id. at 424–25, 99 S.Ct. 1804 ; see also Woodby v. INS , 385 U.S. 276, 284, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966) (requiring a showing of "clear, unequivocal, and convincing evidence" before a "deportation order may be entered").
III. CONCLUSION
For the reasons discussed above, the Court rejects the Recommendation. (Doc. 30). Petitioner's application for habeas relief is GRANTED , in part. (Doc. 1). The Government is hereby ORDERED to take Petitioner before an IJ for an individualized bond hearing no later than November 30, 2020. At that hearing, in accordance with the Fifth Amendment's Due Process Clause, the Government shall bear the burden of demonstrating by clear and convincing evidence that Petitioner is either a danger to the community or a flight risk. If the Government fails to provide Petitioner with such a bond hearing within the 14-day period, the Government is ORDERED to release Petitioner immediately. The Government is hereby ORDERED to submit a joint status report to the Court on or before December 1, 2020. Petitioner's Motion for Expedited Discovery is DISMISSED as moot because the Court did not reach Petitioner's arguments concerning the IJs alleged legal error in ruling on his motion for bond redetermination. (Docs. 21, 21-1).
SO ORDERED , this 16th day of November, 2020.
ORDER AND RECOMMENDATION
Stephen Hyles, UNITED STATES MAGISTRATE JUDGE
Pending before the Court are Petitioner's application for habeas corpus relief under 28 U.S.C. § 2241 (ECF No. 1) and emergency motion for expedited discovery (ECF No. 21). For the hereinbelow reasons, the Court recommends that Petitioner's habeas application be denied. Petitioner's emergency motion for expedited discovery is denied as moot.
BACKGROUND
Petitioner is a native and citizen of the People's Republic of China. Espinal Decl. Ex. A, at 9, Ex. B, at 12, ECF No. 26-1. He was admitted to the United States in New York, New York on or about April 19, 2014, pursuant to a B1 nonimmigrant visa as a temporary visitor for business. Id. ¶ 4, Ex. A, at 9, Ex. B, at 12. He was authorized to remain in the country until October 18, 2014. Id. ¶ 4, Ex. A, at 9, Ex. B, at 12. On November 29, 2018, Forsyth County, Georgia Sheriff's deputies arrested Petitioner for driving without a valid license and willful obstruction of law enforcement officers and placed him in custody. Id. ¶ 5, Ex. A, at 8. On December 2, 2018, Immigration and Customs Enforcement ("ICE") took custody of Petitioner. Id. ¶ 6, Ex. A, at 8-10.
On December 3, 2018, ICE served Petitioner with an I-862 notice to appear ("NTA"), charging him with removability under 8 U.S.C. § 1227(a)(1)(B) as an alien unlawfully present in the United States. Id. ¶ 7, Ex. A, at 12. On December 4, 2018, the International Criminal Police Organization ("INTERPOL") flagged Petitioner with a red alert notice, indicating he was wanted for prosecution by the People's Republic of China for loan fraud. Espinal Decl. ¶ 9, Ex. D, at 20-21. INTERPOL had published this red alert notice on September 7, 2017, after Chinese authorities issued a domestic warrant for Petitioner's arrest on November 24, 2016. Id. Ex. D, at 20-21. Petitioner filed a motion for bond on January 3, 2019, but he withdrew his motion at a hearing on January 11, 2019. Id. ¶ 10, Ex. E, at 23. Petitioner filed a new motion for bond on January 16, 2019, and after holding a bond hearing, the immigration judge ("IJ") denied bond on January 22, 2019, indicating Petitioner failed to meet his burden of establishing that he did not constitute a flight risk. Id. ¶ 11, Ex. F, at 25-28. Petitioner also filed an asylum application, and after holding a merits hearing, the IJ denied Petitioner's application and ordered him removed on February 15, 2019. Id. ¶ 14, Ex. I, at 38-39.
Petitioner appealed both the IJ's January 22, 2019, order denying him bond and the IJ's February 15, 2019, removal order to the Board of Immigration Appeals ("BIA"). Id. ¶¶ 12, 15, Ex. G, at 30-33, Ex. J, at 41-47. On August 7, 2019, the BIA affirmed the IJ's decision denying Petitioner bond. Espinal Decl. ¶ 12, Ex. G, at 30-33. On August 8, 2019, the BIA affirmed in part and reversed in part the IJ's denial of asylum and removal order and remanded the case to the IJ for further proceedings. Id. ¶ 15, Ex. J, at 41-47. After remand, on February 14, 2020, Petitioner filed a motion for bond redetermination. Id. ¶ 13, Ex. 4, at 35-36. On February 19, 2020, the IJ denied Petitioner's motion for bond redetermination, finding he failed to show materially changed circumstances. Id. The IJ reheard Petitioner's case and again ordered him removed on April 10, 2020. Id. ¶ 16, Ex. K, at 59-70. Petitioner appealed the IJ's removal order on May 8, 2020, and that appeal remains pending before the BIA. Id. at ¶ 17 ; Pet. Ex. D, at 2-23, ECF No. 1-5. He did not appeal the IJ's denial of his motion for bond redetermination.
Petitioner filed his habeas application (ECF No. 1) on May 15, 2020. Respondents timely filed their return (ECF No. 10) on May 21, 2020. In their corrected return, Respondents requested an extension of time to file a comprehensive response to Petitioner's habeas application. Resp'ts’ Return 3, ECF No. 12. On May 29, 2020, the Court ordered Respondents to file their comprehensive response by Friday, June 26, 2020. Text-only Order, ECF No. 19. Petitioner filed an emergency motion for expedited discovery (ECF No. 21) on June 3, 2020. On June 18, 2020, the Court ordered Respondents to respond to Petitioner's motion within seven days. Order 1-2, ECF No. 22. The Court also ordered both parties to confer and submit either a joint proposed discovery plan or their own separate proposed discovery plans within seven days. Id. On June 25, 2020, Respondents filed their response (ECF No. 23) to Petitioner's emergency motion for expedited discovery. On the same day, Petitioner filed his proposed discovery plan (ECF No. 24), and Respondents filed their own proposed discovery plan (ECF No. 25). On June 26, 2020, Respondents filed their comprehensive response (ECF No. 26) to Petitioner's habeas application. Petitioner replied (ECF No. 27) to Respondents’ response on June 29, 2020. Petitioner's habeas application and motion are ripe for review.
Respondents initially filed their return (ECF No. 10) on May 21, 2020. They refiled a corrected version of the return (ECF No. 12) on May 22, 2020.
DISCUSSION
The Court recommends that Petitioner's habeas application be denied as to his three claims for relief. Because the Court recommends that Petitioner's habeas application be denied in its entirety, Petitioner's emergency motion for expedited discovery is denied as moot. I. Petitioner's Habeas Application
In his habeas application, Petitioner raises three claims: (1) Petitioner's immigration bond hearing violated his Fifth Amendment due process rights because he retained the burden of proof at the hearing and the IJ did not consider Petitioner's ability to pay bond or alternative conditions of release, (2) Petitioner's immigration bond hearing violated the Immigration and Nationality Act ("INA") and the Administrative Procedure Act ("APA") because he retained the burden of proof, and (3) the IJ unlawfully denied Petitioner a second bond hearing under the INA. Pet. ¶¶ 42-48, ECF No. 1. Respondents argue (1) Petitioner's first two claims should be denied because the bond procedures at issue do not violate the Fifth Amendment, INA, or APA, and (2) Petitioner's third claim should be denied because the Court lacks jurisdiction over this claim. Resp. 9-20, ECF No. 26. The Court agrees and recommends that Petitioner's claims be denied.
A. Petitioner's Claims Concerning Bond Procedures
In his first two claims, Petitioner argues his detention is unlawful because in denying him bond, the IJ wrongfully (1) allocated the burden of proof to Petitioner, and (2) failed to consider Petitioner's ability to pay bond or alternative conditions of release. Pet. ¶¶ 29-46. He maintains both the burden allocation and the IJ's failure to consider these factors violated his Fifth Amendment due process rights. Id. ¶¶ 42-44. He also asserts the burden allocation violates the INA and the APA. Id. ¶¶ 45-46. Respondents contend neither procedure violates due process, the INA, or the APA. Resp. 9-16.
1. Immigration Detention and Bond Standards
The Attorney General ("AG") is authorized to detain an inadmissible alien, such as Petitioner, pending the outcome of removal proceedings, or release the alien on bond or parole. 8 U.S.C. § 1226(a). A district director with the Department of Homeland Security ("DHS") may grant bond or parole in their discretion if the alien "demonstrate[s] to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding." 8 C.F.R. § 236.1(c)(8). Aliens who are denied bond by the district director may apply for bond to an IJ and then appeal an adverse IJ bond decision to the Board of Immigration Appeals ("BIA"). 8 C.F.R. § 236.1(d). "[A]n alien's request for a subsequent bond redetermination shall be made in writing and shall be considered only upon a showing that the alien's circumstances have changed materially since the prior bond redetermination. 8 C.F.R. § 1003.19(e). The determination of whether bond should be granted is left to the discretion of immigration officials, and "[n]o court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole." 8 U.S.C. § 1226(e) ; see Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 841, 200 L.Ed.2d 122 (2018) ("1226(e) precludes an alien from ‘challeng[ing] a ‘discretionary judgment’ by the Attorney General or a ‘decision’ that the Attorney General has made regarding his detention or release.’ " (quoting Demore v. Kim , 538 U.S. 510, 516, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) )).
2. Due Process
Petitioner argues he "never received a constitutionally compliant bond hearing at which the government was required to prove, by clear and convincing evidence, that he is a danger to others or a flight risk." Pet. ¶ 43. He asserts that because the IJ allocated the burden of proof to him—rather than to ICE—his bond hearing violated his Fifth Amendment due process rights, the INA, and the APA. Id. ¶¶ 42-44. Petitioner also contends the IJ's failure to consider his ability to pay bond or alternative conditions to detention violates due process. Id.
"The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge , 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (internal quotations and citations omitted). "[D]ue process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer , 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). To determine whether procedural protections satisfy due process, the Court must analyze three factors:
First, the private interest that will be affected by the official action; second, 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 finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews , 424 U.S. at 335, 96 S.Ct. 893.
The first factor weighs in Petitioner's favor. An alien detained pending a determination as to removability "stands to lose the right to stay and live and work in this land of freedom." Landon v. Plasencia , 459 U.S. 21, 32, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982) (internal quotations and citations omitted). Petitioner has lived in the United States since April 19, 2014. Espinal Decl. Ex. A, at 9. He also alleges Chinese authorities will persecute him if he is removed because he revealed government misconduct before arriving in the United States. Pet. ¶¶ 20, 26. The third factor, however, weighs heavily in Respondents’ favor. Respondents have an "interest in efficient administration of the immigration laws at the border." Landon , 459 U.S. at 34, 103 S.Ct. 321. The Supreme Court has emphasized that "it must weigh heavily in the balance that control over matters of immigration is a sovereign prerogative, largely within the control of the executive and the legislature." Id. Indeed, "over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens." Fiallo v. Bell , 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) (internal quotations and citations omitted). For this reason, the Court has held that "[t]he role of the judiciary is limited to determining whether the procedures meet the essential standard of fairness under the Due Process Clause and does not extend to imposing procedures that merely displace congressional choices of policy." Landon , 459 U.S. at 35, 103 S.Ct. 321.
The second factor also favors Respondents. The Supreme Court has long held that immigration authorities may detain aliens suspected of being removable during the pendency of removal proceedings. Reno v. Flores , 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) ("Congress has the authority to detain aliens suspected of entering the country illegally pending their deportation hearings ....") (citing Carlson v. Landon , 342 U.S. 524, 538, 72 S.Ct. 525, 96 L.Ed. 547 (1952) ("[C]ongress has been careful to provide for full hearing ... before deportation. Such legislative provision requires that those charged with that responsibility exercise it in a manner consistent with due process. Detention is necessarily a part of this deportation procedure."); Wong Wing v. United States , 163 U.S. 228, 235, 16 S.Ct. 977, 41 L.Ed. 140 (1896) ). Under 8 U.S.C. § 1226(a), the AG may detain an alien "pending a decision on whether the alien is to be removed." Congress and DHS have provided a detailed process allowing an alien to seek bond from immigration custody. As explained above, an alien detainee may seek bond from both a district director and an IJ. 8 C.F.R. § 236.1(c). In seeking bond, 8 C.F.R. § 236.1(c)(8) provides that the alien retains the burden of proof to show that the alien does not pose a danger or a flight risk. See In re Guerra , 24 I. & N Dec. 37, 40 (2006) ("The burden is on the alien to show to the satisfaction of the Immigration Judge that he or she merits release on bond."). The BIA has provided factors under which IJs evaluate bond requests. Id. (listing, inter alia , length of residence, family ties, employment history, criminal record, history of immigration violations, and manner of entry). Additionally, the IJ may consider "any information that is available ... or that is presented to him or her by the alien or" Respondents, and no regulation precludes an IJ from considering the alien's ability to pay bond or alternative conditions to release if this information is presented at the bond hearing. 8 C.F.R. § 1003.19(d). Any bond decision is subject to additional review to ensure compliance with these regulations, as the alien may appeal the IJ's decision to the BIA. 8 C.F.R. § 236.1(d)(3). As a final safeguard, in the event the alien shows materially changed circumstances, the alien is entitled to a bond redetermination hearing before an IJ. 8 C.F.R. § 1003.19(e).
When analyzing alien detainees’ due process challenges to their immigration detention, the Supreme Court "has firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens." Demore , 538 U.S. at 522, 123 S.Ct. 1708 (citations omitted). The Court has not directly addressed whether due process requires that immigration authorities retain the burden of proof or consider particular factors when an alien detainee seeks bond from immigration custody. In Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 200 L.Ed.2d 122 (2018), however, the Court held that no statutory text supports such requirements. Jennings , 138 S. Ct. at 847 ("The Court of Appeals ordered the Government to provide procedural protections that go well beyond the initial bond hearing established by existing regulations—namely, periodic bond hearings ... in which the Attorney General must prove by clear and convincing evidence that the alien's continued detention is necessary. Nothing in § 1226(a) ’s text ... even remotely supports the imposition of either of those requirements."). Additionally, the Court has emphasized that "in enacting the precursor to 8 U.S.C. § 1252(a), Congress eliminated any presumption of release pending deportation, committing that determination to the discretion of the Attorney General." Reno , 507 U.S. at 306, 113 S.Ct. 1439 (citations omitted). Finally, aliens who challenged the length of their detention on due process grounds sought bond hearings applying these procedures as a remedy to their potentially unconstitutional detention. Jennings , 138 S.Ct. at 839 ; Demore , 538 U.S. at 517, 528, 123 S.Ct. 1708.
The Eleventh Circuit has addressed this issue indirectly. As Respondents note, in Sopo v. U.S. Attorney Gen. , 825 F.3d 1199 (11th Cir. 2016), vacated on other grounds by Sopo v. U.S. Attorney Gen. , 890 F.3d 952 (11th Cir. 2018), the Eleventh Circuit held that to remedy a criminal alien's unlawfully prolonged detention, ICE "shall follow 8 C.F.R. § 1236.1(c) to afford the detainee alien with an opportunity to obtain bond[.]" Sopo , 825 F.3d at 1220 ; see Resp. 11-12. The Court determined that a bond hearing held in accordance with this regulation constitutes a sufficient remedy to a constitutional violation while acknowledging that "[l]ike non-criminal aliens, the criminal alien carries the burden of proof and must show that he is not a flight risk or danger to others." Id. Similarly, at least one other circuit has concluded that a bond hearing applying these procedures does not violate due process. Borbot v. Warden Hudson Cty. Corr. Facility , 906 F.3d 274, 278-79 (3d Cir. 2018) (holding a § 1226(a) detainee received "meaningful process" through a bond hearing); see also Ali v. Brott , 770 F. App'x 298, 301 (8th Cir. 2019) ("[W]e are skeptical of [petitioner's] argument that his detention pending a decision on whether he is to be removed under § 1226(a) is unconstitutional considering he was given a bond hearing and still has available procedural avenues to seek relief.").
Citing, Sopo , another district court in the Eleventh Circuit has also addressed this issue and recognized that an alien detained under § 1226(a) is entitled only to a bond hearing where the alien bears the burden of proof. Aham v. Gartland , No. 5:19-cv-46, 2020 WL 806929, at *3 n.3 (S.D. Ga. Jan. 29, 2020) ("Even where prolonged detention would warrant an individualized bond hearing, such as in the § 1226(c) context, the burden typically remains with the detainee, as all that is required is an individualized bond hearing in accordance with 8 C.F.R. § 1236.1(c)." (citing Sopo , 825 F.3d at 1220 )), recommendation adopted by 2020 WL 821005 (S.D. Ga. Feb. 18, 2020) ; see also Duncan v. Gartland , No. 5:19-cv-45, 2020 WL 812962, at *3 n.2 (S.D. Ga. Jan. 29, 2020) (same), recommendation adopted by 2020 WL 820288 (S.D. Ga. Feb. 18, 2020). Other courts have reached the same conclusion. Lopez v. Barr , 458 F. Supp. 3d 171, 175–80 (W.D.N.Y. 2020) ; Campoverde v. Barr , No. 4:20-CV-00332, 2020 WL 1233577, at *10-11 (M.D. Pa. Mar. 13, 2020) ; Jose L.P. v. Whitaker , 431 F. Supp. 3d. 540, 551-52 (D.N.J. 2019). The Court agrees with the reasoning of the Eleventh Circuit, the Third Circuit, and these district courts. The immigration bond procedures comply with due process because Petitioner received "the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews , 424 U.S. at 333, 96 S.Ct. 893.
3. INA and APA
Petitioner also argues the burden allocation under 8 C.F.R. § 236.1(c)(8) violates both the INA and the APA. Pet. ¶¶ 45-46. He provides little argument in support. In the only relevant portion of his habeas application, he states that the BIA initially allocated the burden of proof to the immigration authorities, but the BIA "reversed course" in 1999 and allocated the burden to alien detainees who seek bond. Id. ¶¶ 34-35 (citing In re Adeniji , 22 I. & N. Dec. 1102 (BIA 1999) ). Petitioner contends "the BIA failed to provide a reasoned explanation for reversing its prior precedent, and incorrectly relied upon an inapplicable regulation at 8 C.F.R. § 236.1(c)(8)." Id. ¶ 35. Petitioner fails to explain how this violates the INA. Indeed, no INA provision promulgates a standard for bond hearings.
In order to establish an APA violation, Petitioner must show that the adoption of these bond procedures was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "The arbitrary and capricious standard is a highly deferential one, and we cannot substitute our judgment for that of the agency as long as the agency's conclusions are rational and reasonably explained." Black Warrior Riverkeeper, Inc. v. U.S. Army Corp of Eng'rs , 833 F.3d 1274, 1285 (11th Cir. 2016) (citation omitted). "Our inquiry is limited by law to whether the agency's decision was based on a consideration of the relevant factors and, ultimately, whether it made a clear error of judgment." Id. (citation omitted).
In In re Adeniji , 22 I. & N. Dec. 1102 (BIA 1999), the BIA explained that 8 C.F.R. § 236.1(c)(8) was adopted "at the time that regulations implementing the [Illegal Immigration Reform and Immigration Responsibility Act] were first adopted in 1997." 22 I. & N. Dec. at 1113. The BIA recognized that "[f]rom the outset, therefore, the regulations under the IIRIRA have added as a requirement for ordinary bond determinations under section 236(a) of the Act that the alien must demonstrate that ‘release would not pose a danger to property or persons[.]’ " Id. The Board concluded by "deem[ing] the regulatory provision at 8 C.F.R. § 236.1(c)(8) (1999) to contain the appropriate test, as it is binding on [the BIA] and pertains directly to removal proceedings under the IIRIRA." Id. Petitioner fails to show that the BIA's determination that 8 C.F.R. § 236.1(c)(8) applies to § 1226(a) detainees’ bond requests constitutes an arbitrary and capricious decision. The Court recommends that his habeas application be denied on this ground.
B. Petitioner's Claim Concerning Denial of Bond Reconsideration
Petitioner claims an IJ unlawfully denied his motion for bond reconsideration in violation of the INA because Petitioner showed materially changed circumstances, entitling him to a new bond hearing under 8 C.F.R. § 1003.19(e). Pet. ¶¶ 47-48. Respondents argue Petitioner failed to exhaust his administrative remedies concerning this claim because Petitioner could have appealed the IJ's denial of his motion for bond reconsideration to the BIA under 8 C.F.R. § 236.1(d), but he failed to do so. Resp. 16-18. Petitioner contends he was not required to exhaust his administrative remedies for two reasons: (1) he was not required to exhaust administrative remedies before filing his habeas application, and (2) an appeal to the BIA would be futile. Pet. ¶¶ 18-19.
Petitioner correctly notes that exhaustion is not a jurisdictional requirement. Id. ¶ 18 (citing Santiago-Lugo v. Warden , 785 F.3d 467, 471 (11th Cir. 2015) ). However, courts have regularly required exhaustion as a prudential matter to allow the BIA the opportunity to address an issue. Douglas v. Gonzalez , No. 8:06-cv-890-T-30TGW, 2006 WL 5159196, at *2 (M.D. Fla. June 12, 2006) (citing McCarthy v. Madigan , 503 U.S. 140, 144-45, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992) ("[T]he general rule [is] that parties exhaust prescribed administrative remedies before seeking relief from the federal courts.")); see also Hossain v. Barr , No. 6:19-cv-06389-MAT, 2019 WL 5964678, at *3 (W.D.N.Y. Nov. 13, 2019) ("While Section 2241 does not include a statutory exhaustion requirement, courts have generally required exhaustion as a prudential matter." (internal quotation marks omitted)); Sequeira-Balmaceda v. Reno , 79 F. Supp. 2d 1378, 1381-82 (N.D. Ga. 2000) (holding petitioner failed to exhaust administrative remedies where petitioner filed a motion for bond but failed to await a ruling from the IJ before filing his habeas petition). Petitioner also contends that even if exhaustion is mandatory, seeking exhaustion would be futile here. Pet. ¶¶ 18-19. In support, he states that the BIA typically takes six months to rule on appeals. Id. ¶ 19. He claims that pursuing an appeal to the BIA would force him to remain in detention for the duration of this process, and he may contract COVID-19 during that period. Id. ¶ 19. Petitioner's conclusory and speculative claim does not obviate his requirement to exhaust available remedies. Finally, Petitioner argues exhaustion of administrative remedies would be futile because the BIA has held it lacks jurisdiction to adjudicate constitutional challenges to immigration bond procedures. Pet. ¶ 20. However, while this may apply to his first two claims concerning bond procedures, in his third claim, Petitioner does not raise a constitutional challenge concerning the IJ's denial of his motion for bond redetermination. Rather, he contends only that the IJ violated 8 C.F.R. § 1003.19(e) in denying his motion for bond redetermination "because he has demonstrated materially changed circumstances." Id. ¶ 48. This is not a constitutional claim, and under 8 C.F.R. § 236.1(d) the BIA plainly has jurisdiction to determine whether an IJ properly denied an alien detainee's motion for bond redetermination.
On February 14, 2020, Petitioner filed a motion for bond redetermination, alleging a material change in circumstances. Pet. Ex. G, at 2-8, ECF No. 1-8. An IJ denied Petitioner's motion on February 19, 2020. Espinal Decl. ¶ 13, Ex. 4, at 35-36. Pursuant to 8 C.F.R. § 236.1(d), Petitioner could have appealed the IJ's order denying bond redetermination to the BIA. Petitioner did not appeal the IJ's order. He, therefore, failed to exhaust an available administrative remedy to address his claim concerning denial of his motion for bond redetermination. His third habeas claim should be denied for this reason.
In the alternative, Respondents argue that even if Petitioner was not required to exhaust his available administrative remedies, the Court lacks jurisdiction over this claim. Resp. 18-20. "Federal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto." Bender v. Williamsport Area Sch. Dist. , 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) (citing Marbury v. Madison , 5 U.S. (1 Cranch) 137, 173-80, 2 L.Ed. 60 (1803) ). "The limits upon federal jurisdiction, whether imposed by the Constitution or by Congress, must be neither disregarded nor evaded." Owen Equip. & Erection Co. v. Kroger , 437 U.S. 365, 374, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). "A petitioner may not create the jurisdiction that Congress chose to remove simply by cloaking an ... argument in constitutional garb." Arias v. U.S. Att'y Gen. , 482 F.3d 1281, 1284 (11th Cir. 2007) (internal quotations and citations omitted).
Petitioner is detained pursuant to 8 U.S.C. § 1226(a). Under 8 U.S.C. § 1226(e),
[t]he Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.
Additionally, 8 U.S.C. § 1252(a)(2)(B) provides that
[n]otwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision ... no court
shall have jurisdiction to review ... any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security[.]
In Jennings , the Supreme Court recognized that " § 1226(e) precludes an alien from ‘challeng[ing] a "discretionary judgment" by the Attorney General or a "decision" that the Attorney General has made regarding his detention or release.’ " Jennings , 138 S.Ct. at 841 (quoting Demore , 538 U.S. at 516, 123 S.Ct. 1708 ). The Court, however, also noted that " § 1226(e) does not preclude ‘challenges [to] the statutory framework that permits [the alien's] detention without bail.’ " Id. (quoting Demore , 538 U.S. at 517, 123 S.Ct. 1708 ). There, because the detainees "challeng[ed] the extent of the Government's detention authority under the ‘statutory framework’ as a whole" and "the constitutionality of the entire statutory scheme under the Fifth Amendment," the Court held the their claims were not barred by § 1226(e). Id.
By contrast, here, Petitioner does not raise a constitutional challenge in his third claim. Rather, Petitioner contends he "was unlawfully denied a second bond hearing in violation of 8 C.F.R. § 1003.19(e) ... because he has demonstrated materially changed circumstances." Pet. ¶ 48. Unlike detainees in Jennings and Demore , Petitioner does not allege this denial violated any constitutional right, and he does not challenge the statutory and regulatory scheme concerning bond redeterminations. Instead, at least as to this claim, Petitioner challenges the IJ's discretionary decision to deny his motion for bond redetermination based on a factual finding—namely, that Petitioner did not demonstrate materially changed circumstances sufficient to warrant another bond hearing. Thus, under Petitioner's own characterization of his claim, he contests "[t]he Attorney General's discretionary judgment ... regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole." 8 U.S.C. § 1226(e). Plainly, both § 1226(e) and § 1252(a)(2)(B) bar the Court from exercising jurisdiction over this claim. Therefore, in the alternative, Petitioner's third habeas claim should be denied because the Court lacks jurisdiction. The Court RECOMMENDS that his habeas application be DENIED .
II. Petitioner's Emergency Motion for Expedited Discovery
Petitioner filed his emergency motion for expedited discovery (ECF No. 21) on June 3, 2020. He requests that the Court order Respondents to produce records and intra-agency documents issued since January 1, 2016, by or to the Atlanta Immigration Court concerning motions for bond reconsideration. Mem. in Supp. of Em. Mot. for Expedited Disc. 14-15, ECF No. 21-1. Because the Court recommends that all claims raised in Petitioner's habeas application be dismissed, Petitioner's emergency motion for expedited discovery concerning those claims is DENIED AS MOOT . In the event that all or some of Petitioner's claims are not denied, Petitioner may refile his motion.
As Respondents note, the documents and information Petitioner seeks through his motion for expedited discovery appear to concern only his third claim in his habeas application—that the IJ improperly denied his motion for bond reconsideration. Resp. to Pet'r’s Emergency Motion for Expedited Disc. 2, ECF No. 23 ("Petitioner seeks discovery ostensibly related to his third cause of action, i.e., that the Immigration Judge improperly found that he had not shown materially changed circumstances entitling him to a second bond hearing."). Neither party disputes the facts underlying Petitioner's first two claims: that Petitioner retained the burden of proof at his bond hearing and that the IJ was not required to consider Petitioner's ability to pay a bond. The parties’ only factual dispute warranting discovery arises from this third claim—namely, whether the IJ properly denied Petitioner's motion for bond reconsideration under the applicable regulations. Petitioner thus fails to show he is entitled to the requested discovery on his first two claims. Consequently, if the Court allows Petitioner's first two claims to proceed but denies his third claim, in the alternative, his emergency motion for expedited discovery should be denied as moot.
CONCLUSION
For the foregoing reasons, it is recommended that Petitioner's habeas application (ECF No. 1) be denied. Petitioner's emergency motion for expedited discovery (ECF No. 21) is denied as moot. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."
SO RECOMMENDED, this 17th day of July, 2020.