By Andrea Saenz
The Second Circuit’s recent decision in Lora v. Shanahan, No. 14-2343-pr-, slip op. (2nd Cir. Oct. 28, 2015), gives immigration detainees a lot to be hopeful about, and gives scholars and advocates a lot of new questions to chew on. In Lora, the Second Circuit held that noncitizens cannot be subjected to prolonged no-bond detention under INA § 236(c) while their deportation cases are pending, and therefore must be given a bond hearing within six months of their detention. As Alina Das wrote on this blog, the decision represents a resounding victory for core due process protections from unlawful and indefinite government custody. The decision also contains explicit acknowledgment that noncitizens with prior criminal justice contact should not all be painted with the broad brush of “dangerousness,” as many have low-level criminal records, proven rehabilitation, and close family and community ties, and deserve a chance to say so at a meaningful bond hearing before an immigration court.
Of particular note is the heightened standard that must be used for new bond hearings under Lora. In an ordinary bond hearing under INA § 236(a), the noncitizen has the burden to show to the satisfaction of the immigration judge that he would not pose a danger to property or persons, and that he does not pose a risk of flight. See 8 C.F.R. 1236.1(c)(8); Matter of Urena, 25 I&N Dec. 140, 141 (BIA 2009). The Lora court, however, held that in the case of a person who has been detained under § 236(c) for six months, the government must establish “by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community.” Thus, the burden of proof and production shifts to the government, and the standard of proof is raised to “clear and convincing” in order to justify detention past six months, a period of detention the Supreme Court has previously indicated raises serious constitutional concerns without an individualized review. See Zadvydas v. Davis, 533 U.S. 678 (2001).
What will these new bond hearings look like? That answer is still developing as the first waves of noncitizens and their lawyers go before immigration courts in the Second Circuit to receive Lora bond hearings. Existing precedent from the Board of Immigration Appeals provides limited but useful guidance. “Clear and convincing evidence” is a high standard for the government to meet, and should require ICE to produce reliable, conclusive documents relating to dangerousness, rather than relying on evidence of arrests, allegations, or charges that did not lead to convictions. For example, in Matter of Davey, the BIA found that ICE failed to meet its burden to prove that Ms. Davey had a controlled substance offense by proffering conviction documents that were inconclusive about the details of Davey’s conviction for marijuana possession. See 26 I&N Dec. 37, 41. As ICE had the burden to prove the charge by “clear and convincing evidence,” see INA § 240(c)(2)(B), the lack of a clear finding the marijuana was or was not for personal use meant that ICE had not carried its burden to prove that it was not for personal use. Immigration judges should apply this same exacting review to documents introduced in a Lora hearing that relate to possible danger or flight risk.
What factors immigration judges will use to assess possible danger to the community is also an open question in the wake of the Lora decision. In the Ninth Circuit, which adopted a six-month bright line rule on no-bond detention under INA § 236(c) and the same burden that the government must show danger or flight risk by clear and convincing evidence at a bond hearing, the court specifically directed immigration judges to Matter of Guerra, 24 I&N Dec. 37 (BIA 2008). That case lists a non-exclusive number of factors judges may consider in a typical bond hearing under INA § 236(a), including length of residence in the United States, recency and seriousness of criminal history, immigration history, and family ties.
However, there is reason to be wary about the automatic adoption of Matter of Guerra and other BIA bond cases that were developed in the INA § 236(a) context in Lora bond hearings. In Guerra, the BIA affirmed the immigration judge’s denial of bond to Mr. Guerra as a danger to the community based almost entirely on a criminal complaint for a criminal charge that had not been resolved and to which Guerra had pleaded not guilty, alleging his involvement in the sale of drugs. The BIA held that this document was sufficient for the immigration judge to make a finding that Guerra had not met his burden to show he was not a danger to society.
It is hard to reconcile this finding with the new Lora standard, where the government would have the burden of proof and where the Second Circuit has previously indicated that allegations in charging documents that do not result in convictions are unlikely to constitute “clear and convincing evidence” of anything. For example, in James v. Mukasey, 522 F.3d 250, 257 (2d Cir. 2008), the court noted that a charging document alone is not reliable evidence of underlying conduct, and in Francis v. Gonzales, 442 F.3d 131, 143 (2d Cir. 2006), the court found that RAP sheets and police reports do not rise to the level of clear and convincing evidence of a conviction, pointing out that records coming from “neutral courts and magistrates” are more reliable evidence than documents and reports from “agencies whose jobs are to seek to detect and prosecute crime.” If these documents are not clear and convincing evidence of a conviction or its underlying conduct, they certainly should not be credited as proof of that conduct pointing to dangerousness.
These are only a few of the issues being raised in the immediate aftermath of Lora; others will include how to secure reasonable bond amounts detainees can actually post, and whether to advocate for the use of conditions of release as part of immigration judge orders. As all parties adapt to a new regime of bond hearings under Lora, it will be essential to hold the government to their new burdens of proof and production to give meaning to the Second Circuit’s deep concern for the way detainees and their families’ lives are “upended” by detention without real procedural safeguards.