The U.S. Court of Appeals for the Ninth Circuit recently held that the government has the burden of proving by clear and convincing evidence that continued detention pending removal is justified and that the immigration court must make a contemporaneous record of a bond hearing. Singh v. Holder, No. 10-15715, slip. op. (9th Cir. March 31, 2011) (Graber, Fisher, and Bybee, J.). Judge Fisher wrote the panel’s opinion.
This case involved an LPR imprisoned by ICE since April 10, 2007. An IJ ordered him removed in September 2007, but his case has moved slowly through the appeals process, including an appeal to the Ninth Circuit. Singh, No. 10-15715, slip. op at 3. The Ninth Circuit has not yet decided the merits of Singh’s appeal.
The Ninth Circuit’s decision rests on due process jurisprudence, including one of the Supreme Court’s landmark due process decisions in the immigration imprisonment context, Zadvydas v. Davis, 533 U.S. 678 (2001), and its foundational procedural due process decision Mathews v. Eldridge, 424 U.S. 319 (1976). In Eldridge, the Court held that
“due process requires consideration of three distinct 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.”424 U.S. at 335.
The panel first addresses the proper standard and burden for determining whether prolonged detention is justified. As the panel explains, “In Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008), we held that aliens facing prolonged detention while their petitions for review of their removal orders are pending are entitled to a bond hearing before a neutral immigration judge.” Singh, No. 10-15715, slip. op at 2.
Alluding to the first of Eldridge’s three prongs, the Ninth Circuit panel announces that “[g]iven the substantial liberty interest at stake…we hold that the government must prove by clear and convincing evidence that an alien is a flight risk or a danger to the community to justify denial of bond at a Casas hearing.” Singh, No. 10-15715, slip. op at 9-10. The burden, therefore, is on the government to prove by clear and convincing evidence that a noncitizen is a flight risk or danger, thus justifying continued detention.
The court then provided some guidance on how to determine whether flight risk or dangerousness exists. Importantly, while the existence of a removal order is a factor in deciding flight risk, “it alone does not constitute clear and convincing evidence that Singh presented a flight risk justifying denial of bond.” Singh, No. 10-15715, slip. op at 14.
Instead, courts should use the factors announced by the BIA in Matter of Guerra, 24 I&N Dec. 37, 40 (BIA 2006). In Matter of Guerra, the Board identified nine relevant factors:
“(1) whether the alien has a fixed address in the United States; (2) the alien’s length of residence in the United States; (3) the alien’s family ties in the United States, and whether they may entitled the alien to reside permanently in the United States in the future; (4) the alien’s employment history; (5) the alien’s record of appearance in court; (6) the alien’s criminal record, including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses; (7) the alien’s history of immigration violations; (8) any attempts by the alien to flee prosecution or otherwise escape from authorities; and (9) the alien’s manner of entry into the United States.” 24 I&N Dec. at 40.
While Matter of Guerra clearly contemplates consideration of the noncitizen’s criminal history, the Ninth Circuit explained, “that criminal history alone will not always be sufficient to justify denial of bond on the basis of dangerousness. Rather, the recency and severity of the offenses must be considered.” Singh, No. 10-15715, slip. op at 16. “Indeed, not all criminal convictions conclusively establish that an alien presents a danger to the community, even where the crimes are serious enough to render the alien removable.” Singh, No. 10-15715, slip. op at 17.
The Ninth Circuit then turned to the type of record that must be made of bond hearings required by Casas (i.e., for individuals in prolonged detention pending a final decision on removal). The court considered Eldridge’s three-part test and concluded, “due process requires a contemporaneous record of Casas hearings and that the memorandum decision presently provided is insufficient. We hold that, in lieu of providing a transcript, the immigration court may record Casas hearings and make the audio recordings available for appeal upon request.” Singh, No. 10-15715, slip. op at 21.
The court reached this conclusion by considering the private interest at issue, Eldridge’s first prong, “freedom from prolonged detention” to be “unquestionably substantial.” Singh, No. 10-15715, slip. op at 21. This interest might be compromised—the second Eldridge prong—by the existing memorandum decision because the memorandum decision is reconstructed after the bond hearing, thus it “is not the functional equivalent of a transcript.” Singh, No. 10-15715, slip. op at 21-22. Lastly, the court determined that recording a bond hearing does not add much of a burden to the government—Eldridge’s third prong—given that immigration courts already have recording equipment available and record merits hearings. Singh, No. 10-15715, slip. op at 23. Interestingly, the court does not address whether immigration judges—the individuals who frequently personally operate the recording devices—will be significantly burdened by having to record Casas hearings.
One final note of interest is that this decision is limited on its face to bond hearings conducted pursuant to Casas for individuals who have been in prolonged detention while their appeals remain underway. The due process analysis that the court performs under Eldridge to conclude that immigration courts must make a contemporaneous record of such bond hearings, however, is likely not too different for all other types of bond hearings conducted pursuant to INA § 236(a). The difference would be that the private interest at stake in an ordinary bond hearing is not “freedom from prolonged detention,” but mere freedom from detention. We’ll have to see whether that’s sufficient to reach the same conclusion as the Ninth Circuit reached here.
Scott Mossman also wrote about this decision over at the crimeandimmigrationlawyer blog.