L.G., Petitioner, v. CHOATE (2024)

ORDER

Pending before the Court are the Verified Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, ECF No. 1; Petitioner's Amended Motion for Temporary Restraining Order, ECF No. 8; and Petitioner's Unopposed Motion to Restrict Public Access, ECF No. 14. For the reasons stated below, the Petition, ECF No. 1, is GRANTED IN PART, to the extent Petitioner seeks a bond hearing, and DENIED IN PART, to the extent Petitioner seeks immediate release. The Motion for Temporary Restraining Order, ECF No. 8, is DENIED AS MOOT. Petitioner's Unopposed Motion to Restrict Public access is GRANTED IN PART. The Court will refer to Petitioner as “Petitioner” or by his initials in all filings and Orders henceforth.

I. BACKGROUND

The following facts are taken from Petitioner's Petition for Writ of Habeas Corpus, ECF No. 1, Respondents’ Response, ECF No. 12, and the declaration of Donald Loveless, ECF No. 12-1. The Court utilizes these documents to identify the relevant chronology for the underlying proceedings. Unless controverted, the Court assumes the facts are true.

A. Prior removal proceedings

Petitioner is a thirty-three-year-old Mexican citizen with a history of entering the United States and residing in Colorado illegally. ECF No. 12 at 3. He is currently subject to removal proceedings. See ECF No. 1 at 2. In 2002, Petitioner first entered the United States without inspection when he was about 12 years old. Id. at 3; ECF No. 12-1 at 3. In 2006, he was placed in removal proceedings and accepted a voluntary departure. ECF No. 1 at 7.

On some unknown date, Petitioner reentered the United States a second time without inspection.¹ ECF No. 12-1 at 3. In 2016, he was convicted in Colorado of harassment via a communication device under Colo. R. Stat. § 18-9-111(1)(e) and trespass of a dwelling under Colo. R. Stat. § 18-4-502. See id. He was sentenced to two years of probation.² Id. In 2017, DHS issued a Notice to Appear (“NTA”) against Petitioner, placing him in removal proceedings. Id. On July 5, 2017, an Immigration Judge (IJ) ordered Petitioner. removed, and he was removed to Mexico on July 25, 2017. Id. at 3-4. In 2017, while in Mexico, Petitioner claims he witnessed the cartel murder his friend and that he was shot at during the same incident. ECF No. 1 at 7.

On some unknown date, Petitioner fled Mexico and entered the United States for a third time without inspection because he claims he feared for his life after the events in Mexico. ECF No. 1 at 7. On October 9, 2018 he was convicted for illegal reentry under 8 U.S.C. § 1326 and was sentenced to 13 months in prison. ECF No. 12-1 at 4. After serving his sentence he was again removed to Mexico. Id. Petitioner claims he was shot at by cartel members the day he returned to Mexico. ECF No. 1 at 8.

B. Current withholding-only proceedings

In August 2019, Petitioner once again fled Mexico and returned to the United States in violation of his prior removal order. See ECF No. 12-1 at 4. It is unclear, but it appears from the record that Petitioner was at large somewhere in the United States between August 2019 and January 2021. In 2021, Petitioner was convicted a second time of harassment.³ Id. He was sentenced to probation; however, on December 3, 2021, the Department of Homeland Security (“DHS”) reinstated Petitioner's prior removal order from July 2017 and detained him. Id. DHS detained Petitioner pursuant to 8 U.S.C. § 1231, which provides “when an alien is ordered removed ․ the Attorney general shall detain the alien [during the removal period]” (emphasis added). Id.

On December 21, 2021, a Credible Fear Interview was conducted pursuant to 8 C.F.R. § 208.31 because Petitioner expressed a fear of return to Mexico.⁴ ECF No. 1 at 8. An asylum officer found that Petitioner had established a reasonable fear of torture if he returned to Mexico. Id. On December 23, 2021, Petitioner was placed in withholding-only proceedings pursuant to 8 C.F.R. § 208.31(e).⁵ ECF No. 12-1 at 4.

On February 9, 2022, Petitioner filed an I-589, an application for asylum and for withholding of removal. ECF No. 1 at 8. According to DHS, Petitioner “pursued an application for withholding under 8 U.S.C. § 1231(b)(3)⁶ and protection under the regulations implementing the United States government's obligation under Article 3 of the Convention Against Torture (“CAT”).”⁷ ECF No. 12-1 at 4-5. On April 27, 2022, the IJ held a merits hearing. ECF No. 12-1 at 5. On July 15, 2022, the IJ issued an oral decision denying Petitioner's application for withholding of removal but granting CAT protection. See id.; ECF No. 1 at 9. On August 12, 2022, DHS appealed the IJ's decision to the Board of Immigration Appeals (“BIA”). ECF No. 12-1 at 5. On February 2, 2023 the BIA remanded the case back to the IJ. Id.

On February 14, 2023, DHS moved to dismiss the pending withholding proceedings before a final decision on its appeal occurred.⁸ ECF No. 1 at 10. On February 17, 2023, DHS issued a new NTA, charging Petitioner with inadmissibility pursuant to 8 USC § 1182(a)(6)(A)(i)⁹ and reinitiating removal proceedings. Id. With the dismissal of the prior withholding proceedings and the issuance of the new NTA, Petitioner's detention status changed. Id. at 5-6. Since February 17, 2023, he has been detained pursuant to 8 U.S.C. § 1226a, which provides “[o]n 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” (emphasis added). Id. at 6. Individuals detained under § 1231, which is what Petitioner was originally detained under, are not ordinarily entitled to a bond hearing while they pursue withholding of removal, but individuals detained under § 1226a are entitled to a bond hearing. See Johnson v. Guzman Chavez, 594 U.S. 523, 526, 141 S.Ct. 2271, 210 L.Ed.2d 656 (2021). On February 17, 2023, Petitioner requested the IJ review his custody status, but on February 23, 2023 he appeared before the IJ and withdrew his request for a bond hearing. ECF No. 12-1 at 6.

On March 15, 2023, Petitioner filed a new I-589, applying for asylum, withholding of removal, and protection under CAT. See id.; ECF No. 1 at 11. On March 28, 2023, Petitioner requested a bond redetermination, and on March 31, 2023, a bond redetermination hearing was held. ECF No. 12-1 at 6. Petitioner was represented by counsel and presented evidence at the hearing. Id. at 6; ECF No. 1 at 12. DHS did not file any documents into the record at the hearing. ECF No. 1 at 12. The IJ denied bond, finding that Petitioner was a danger to the community.¹⁰ ECF No. 12-1 at 6. Petitioner did not appeal the IJ's decision to the BIA. Id. Nor has Petitioner requested another bond hearing in the 14 months since the March 31, 2023 hearing as is his right if his circumstances have materially changed pursuant to 8 C.F.R. § 1003.19(e).

On May 25, 2023, the IJ held a merits hearing on Petitioner's applications for asylum, withholding of removal, and CAT protection. Id. On July 13, 2023, the IJ denied Petitioner's applications and ordered him removed to Mexico. Id. at 7. On August 11, 2023, Petitioner appealed the IJ's decision to the BIA. Id. On February 8, 2024, the BIA affirmed the IJ's denial of CAT protection but remanded the case back to the IJ for further factual findings on the impact of the PII disclosure on Petitioners application for asylum and withholding of removal. Id.

On June 11, 2024, the IJ held a merits hearing. ECF No. 16 at 1. The IJ did not issue an order, instead she said she would provide a written decision and set another hearing for August 12, 2024, as a deadline for the decision. Id. at 1-2. Petitioner intends to file an appeal if his application is once again denied and petition for review before the Tenth Circuit Court of Appeals if necessary ECF No. 1 at 11.

DHS detained Petitioner on December 3, 2021, and he has been in DHS custody at the Aurora Detention Center ever since—for over 30 months. Petitioner was first detained for over 14 months pursuant to 8 U.S.C. § 1231. He is currently detained pursuant to 8 U.S.C. § 1226a and has been so for over 16 months. Petitioner reports deteriorating mental health conditions while in detention. ECF No. 1 at 2. Depending on the outcome of his most recent merits hearing, he may be subject to detention for many more months.

On May 1, 2024, Petitioner filed his present Petition, seeking his “release unless the government provides him with a constitutionally adequate bond hearing at which DHS bears the burden to justify [Petitioner's] prolonged detention by clear and convincing evidence, and where the IJ analyzes, inter alia, alternatives to detention in the analysis of flight risk and danger.” ECF No. 1 at 2-3. In particular, Petitioner requests that the Court:

Issue a writ of habeas corpus directing Respondents to provide [Petitioner] within seven days of this Court's order a constitutionally adequate bond hearing before an impartial adjudicator at the Aurora Immigration Court where: (a) DHS bears the burden of establishing by clear and convincing evidence that continued detention is justified; (b) The adjudicator must consider [Petitioner's] ability to pay bond; (c) The adjudicator must not give undue weight to allegations underlying dismissed criminal charges; (d) The adjudicator may not place undue weight on unauthenticated or antiquated documents regarding alleged criminal legal contacts; and (e) The adjudicator must consider [Petitioner's] mental health diagnoses and trauma when considering criminal legal contacts.

Id. at 44–45.

Petitioner also moved for a temporary restraining order, seeking “judicial review of his unlawful detention.” ECF No. 8 at 5. In the alternative, Petitioner requests in his Motion that the Court “order Respondents to show cause and respond to [Petitioner's] habeas petition 14 days after the Court's order, with 7 days for [Petitioner] to reply.” Id. at 15. This matter has been fully briefed, and the Court finds for the reasons below that the habeas relief requested should be granted in part, to the extent Petitioner seeks a bond hearing, and denied in part, to the extent Petitioner seeks immediate release. Therefore, the Court grants in part and denies in part Petitioner's Petition, ECF No. 1, and denies as moot Petitioner's Motion for Temporary Restraining Order, ECF No. 8.¹¹

II. JURISDICTION

The Court has jurisdiction under 28 U.S.C. § 2241 to consider Petitioner's constitutional claim. See Demore v. Kim, 538 U.S. 510, 517, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003).¹²

III. LEGAL STANDARD

Two sections of the Immigration and Nationalization Act (INA) authorize detention — 8 U.S.C. § 1231, which applies once a removal order has been issued, and 8 U.S.C. § 1226, which operates when a removal order has not yet been entered. Detention is mandatory under 8 U.S.C. § 1231(a), and it may also be mandatory when certain crimes are involved under 8 U.S.C. § 1226(c). If a noncitizen is in removal proceedings and 8 U.S.C. § 1226(c) does not apply, DHS makes the initial decision to detain a noncitizen under 8 U.S.C. § 1226(a). The noncitizen may request a custody redetermination hearing from an IJ at any time before a removal order becomes final. 8 C.F.R. § 236.1(d)(1). That bond decision is appealable to the BIA. 8 C.F.R. § 1003.19(f). Detainees are allowed to seek an additional bond hearing before an IJ whenever they experience a material change in circumstances. 8 C.F.R. § 1003.19(e).

8 U.S.C. § 1226(a) is silent as to whether the government or the noncitizen bears the burden of proof at a custody redetermination hearing and what amount of evidence would satisfy that burden. Prior to its decision in Matter of Adeniji, 22 I. & N. Dec. 1102, 1102 (BIA 1999), the BIA held it was the government's burden to prove detention was warranted. See Diaz-Ceja v. McAleenan, No. 19-CV-00824-NYW, 2019 WL 2774211, at *6 (D. Colo. July 2, 2019) (Wang, J.) (citing In re Patel, 15 I. & N. Dec. 666, 666 (BIA 1976)). In Adeniji, the BIA shifted the burden to the noncitizen to prove that “his release would not pose a danger to property or persons, and that he is likely to appear for any future proceedings.” 22 I. & N. Dec. 1102 at 1116. In making a bond determination, the IJ considers nine 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 entitle 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 to the United States.”

In Re Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006).

The Supreme Court touched on what burden of proof should apply under § 1226(a) in Jennings v. Rodriguez when it rejected the Ninth Circuit's statutory interpretation holding that a noncitizen is entitled to periodic bonding hearings under §§ 1226(a) and 1226(c). 583 U.S. 281, 306, 138 S.Ct. 830, 200 L.Ed.2d 122 (2018) (“Nothing in § 1226(a)’s text—which says only that the Attorney General ‘may release’ the alien ‘on ․ bond’—even remotely supports the imposition” of “periodic bond hearings every six months in which the Attorney General must prove by clear and convincing evidence that the alien's continued detention is necessary.”). In so ruling, the Supreme Court did not consider constitutional arguments, but rather remanded them to the Ninth Circuit. Id. at 312, 138 S.Ct. 830. To date the question of the appropriate burden of proof under 1226(a) remains unresolved. See Rodriguez Diaz v. Garland, 53 F.4th 1189, 1203 (9th Cir. 2022).

The Circuits are split over the constitutionality of § 1226(a) procedures. Both the First and Second Circuits have held that the Due Process Clause entitles § 1226(a) detainees to an additional bond hearing where the government bears the burden after prolonged detention. See Hernandez-Lara v. Lyons, 10 F.4th 19, 40 (1st Cir. 2021); Velasco Lopez v. Decker, 978 F.3d 842, 854 (2d Cir. 2020). Whereas the Third, Fourth, and Ninth Circuits have rejected a § 1226(a) detainee's requests for a new bond hearing with a shifted burden. See Borbot v. Warden Hudson Cnty. Corr. Facility, 906 F.3d 274, 279 (3d Cir. 2018); Miranda v. Garland, 34 F.4th 338, 365-66 (4th Cir. 2022); Rodriguez Diaz, 53 F.4th 1189 at 1223. Only three courts in this District have addressed what burden of proof is constitutionally mandated under § 1226(a) to satisfy constitutional due process guarantees, reaching conflicting outcomes. See Basri v. Barr, 469 F. Supp. 3d 1063, 1065-66 (D. Colo. 2020) (Domenico, J.) (The petitioner was detained for over two months when Judge Domenico issued his order, holding “the Constitution does not require the government to prove detention is necessary in immigration bond hearings.”); Diaz-Ceja, 2019 WL 2774211, at *10, *12 (The petitioner was detained for over 27 months when then Magistrate Judge Wang issued her order finding that the “[p]etitioner is entitled to an individualized bond redetermination hearing in which the Government is required to establish that continued detention is justified by clear and convincing evidence.”); Molina v. Choate, No. 19-cv-00207-LTB-GPG, 2019 WL 13214049, at *2-3 (D. Colo. Mar. 22, 2019) (Babcock, J.) (The petitioner was detained for eleven months when Judge Babcock issued his order recognizing that some “some district courts have recently placed the burden on the government during immigration bond hearings,” but ultimately holding it is the noncitizen's burden.). The Tenth Circuit has not done the analysis.

Here, Petitioner brings an as-applied challenge to § 1226(a) procedures. ECF No. 1 at 25. The Court notes that when considering due process challenges to § 1226(a) like the one here, the First, Second, Fourth, and Ninth Circuits applied the framework established in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). See Rodriguez Diaz, 53 F.4th 1189 at 1206, Miranda, 34 F.4th at 358-59; Hernandez-Lara, 10 F.4th at 27-28; Velasco Lopez, 978 F.3d at 851. The courts in this District that conducted the analysis did not apply the Mathews test. See Diaz-Ceja, 2019 WL 2774211 at *9 (finding “the Mathews formation is not the most appropriate for the current circumstances”). Out of the four Circuits applying the test set forth in Mathews, only the Ninth Circuit did any analysis before “assum[ing] without deciding” that Mathews applied. Rodriguez Diaz, 53 F.4th 1189 at 1206-7. The court in Rodriguez Diaz noted that the Supreme Court has not resolved constitutional challenges to immigration detention through the express application of Mathews. Id. at 1206. But the Supreme Court has applied Mathews in “considering what standard should govern in a civil commitment proceeding,” Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323, (1979), which is what the First Circuit cited to in deciding to use the Mathews test. Hernandez-Lara, 10 F.4th at 28. The Tenth Circuit uses Mathews when determining what “type of process required in a given case.” Marin v. King, 720 F. App'x 923, 940-41 (10th Cir. 2018); see also J.B. v. Washington Cnty., 127 F.3d 919, 924 (10th Cir. 1997) (“To determine what process is constitutionally due, we look to three somewhat flexible demands of procedural due process [listing the Mathews factors.]”).

The three-factor balancing test from Mathews considers: (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 requirement would entail.” 424 U.S. at 335, 96 S.Ct. 893.

IV. ANALYSIS

Tenth Circuit precedent demonstrates that the Mathews test is appropriate when determining what process is constitutionally due. See Marin, 720 F. App'x at 940; J.B., 127 F.3d at 924. Here, the inquiry is what process is constitutionally due during 8 U.S.C. § 1226(a) bond hearings after a prolonged detention. To comport with the Tenth Circuit and the majority of the courts that have conducted similar analyses, the Court will apply the Mathews three-part balancing test to determine whether the Due Process Clause of the Fifth Amendment entitles Petitioner to a bond hearing at which the government bears the burden of proving by clear and convincing evidence that the he is dangerous or a flight risk.¹³

First, the Court will address the government's argument that Petitioner was required to exhaust his administrative remedies by appealing the IJ's denial of bond to the BIA. ECF No. 12 at 8. Then the Court will address each Mathews factor in turn, focusing first on the burden of proof. The Court will then address the extent of the burden to be borne. Finally, the Court will address Petitioner's Administrative Procedures Act (“APA”) claim.¹⁴

A. Exhaustion

The Court first addresses the government's argument that Petitioner was required to exhaust his administrative remedies by appealing the IJ's denial of bond to the BIA. ECF No. 8. While petitioners are ordinarily required to exhaust their administrative remedies prior to seeking a writ under 28 U.S.C. § 2241, the government admits administrative exhaustion is not required by statute. Id. When Congress does not require exhaustion in the statute then the district court has discretion to decide if administrative exhaustion is required. Miranda, 34 F.4th 338 at 351 (holding noncitizens detained under § 1226(a) were not required to exhaust their administrative remedies before a BIA habeas challenge to the constitutionality of the statutory process for obtaining release on bond pending removal) (citing McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992)). Moreover, as the government recognizes “[a] narrow exception to the exhaustion requirement applies if a petitioner can demonstrate that exhaustion is futile.” Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010). The Court agrees with Petitioner that an appeal to the BIA would be futile here considering the BIA's prior decisions concerning detention under § 1226(a) require the noncitizen to carry the burden that he is not a flight risk and not a danger to the community.

B. Mathews Factors

As discussed above, the Court will apply the Mathews balancing test to Petitioner's due process claims.

1. Private Interest

First, the Court considers “the private interest that will be affected by the official action.” Mathews, 424 U.S. at 321, 96 S.Ct. 893. The private interest at stake here is freedom from detention. “Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) (citing Youngberg v. Romeo, 457 U.S. 307, 316, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982)). Petitioner has been detained for over 30 months under conditions another court in this District has recognized as “more akin to incarceration than civil confinement.” Daley v. Choate, No. 22-CV-03043-RM, 2023 WL 2336052, at *4 (D. Colo. Jan. 6, 2023). While detained, he is only able to see family, including his young children, by scheduling a time for them to come visit him. See ECF No. 1 at 2; ECF No. 12-1 at 7. He was unable to be there when his father passed away during his detention. ECF No. 1 at 2. His mental health has deteriorated during his lengthy detention. Id.

The government cites Demore v. Kim, 538 U.S. 510, 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) for its proposition that the Supreme Court upheld the constitutionality of detention under § 1226 and that Petitioner's private interest is not as strong as if he were a citizen or if he was not in removal proceedings. ECF No. 12 at 11, 15. The Demore Court recognized that while “[i]t is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings, ․ detention during deportation proceedings [is] a constitutionally valid aspect of the deportation process.” Id. at 523, 123 S.Ct. 1708 (quoting Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993)). However, the “fact that some detention is permissible does not change the fact that a detainee suffers significant liberty deprivations. Moreover, the government's exercise of its power to detain immigrants pending removal ‘is subject to important constitutional limitations.’ ” Hernandez-Lara, 10 F.4th at 28 (quoting Zadvydas v. Davis, 533 U.S. 678, 695, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001)). Even if Petitioner is a noncitizen in removal proceedings, that does not mean that he does not have a strong private interest in being free from civil detention.

The government further argues “the length of Petitioner's detention alone [cannot] establish the first factor.” ECF No. 12 at 15. While that may be true, the longer the duration of detention, the greater the deprivation of a noncitizen's private interest. See Velasco Lopez, 978 F.3d at 852. Courts in this District have held that “Demore expressed the understanding that detention under § 1226(c) would be brief, and this assumption was key to [the Court's] conclusion that the law complied with due process.” Sheikh v. Choate, No. 22-CV-01627-RMR, 2022 WL 17075894, at *3 (D. Colo. July 27, 2022) (Rodriguez, J.) (quoting Villaescusa-Rios v. Choate, No. 20-cv-03187-CMA, 2021 WL 269766, at *2 (D. Colo. Jan. 27, 2021) (Arguello, J.)); Singh v. Garland, No. 21-cv-00715-CMA, 2021 WL 2290712, at *3 (D. Colo. June 4, 2021) (Arguello, J.). The Court recognizes that the liberty interest of a noncitizen detained under § 1226(a) may be less than a noncitizen facing an indefinite and prolonged detention under § 1226(c); however, the estimate found in Demore was roughly a month and half in most cases and five months in the minority of cases where the noncitizen chose to appeal. See Hernandez-Lara, 10 F.4th at 29 (citing Demore, 538 U.S. at 530, 123 S.Ct. 1708). In Zadvydas, the Supreme Court held that detention of an alien following a final order of removal was only presumptively reasonable for six months. 533 U.S. at 701, 121 S.Ct. 2491. The Supreme Court has not considered reasonableness of detaining a noncitizen for two and half years, five times the term that was discussed in Demore. This Court finds that Peitioner's prolonged detention enhances his individual liberty interest, warranting additional procedural safeguards.

Petitioner's argument that the government's appeal of CAT protection is akin to double jeopardy is unconvincing. ECF No. 12 at 19. Part of the recognized process for removal proceedings is that both parties can appeal an IJ's decision to the BIA, a process that has benefited Petition on at least one occasion. That is why “[d]etention under § 1226(a) is frequently prolonged because it continues until all proceedings and appeals are concluded ․ even where an individual has prevailed and the Government appeals.” Velasco Lopez, 978 F.3d at 852. Petitioner has already indicated that if he is not successful, he plans to appeal knowing it could prolong his detention. ECF No. 1 at 11.

For the reasons stated above, the Court concludes that the first Mathews factor weighs in Petitioner's favor.

2. Deprivation of Interest Through the Procedures Used

Second, the Court considers “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. The government argues that existing bond procedures “provide extensive safeguards against erroneous deprivation of liberty” by listing the number of bond determination and appeal opportunities the noncitizen has. ECF No. 12 at 16-17. The government does not address two of Petitioner's strongest arguments – the difficult task of proving a negative and the resources of the government. ECF No. 1 at 19-20.

The Court agrees that Petitioner's argument about noncitizens often having to appear pro se and not having the ability to collect evidence while detained is unavailing as applied to Petitioner as an individual because Petitioner was represented by counsel at his bond redetermination and did present evidence he and his attorney collected. See id. at 12, 20; ECF No.12 at 17. “The odds of being granted bond are more than 3.5 times higher for detainees represented by attorneys than those who appear[ ] pro se.” Hernandez-Lara, 10 F.4th at 30 (quoting Emily Ryo, Detained: A Study of Immigration Bond Hearings, 50 Law & Soc'y Rev. 117, 143 (2016)).

Petitioner argues, and the Court agrees, proving a negative is difficult. Here, Petitioner had the burden to prove two – 1) he is not a flight risk, and 2) he is not a danger to the community. ECF No. 1 at 6.“[P]roving a negative (especially a lack of danger) can often be more difficult than proving a cause for concern.” Hernandez-Lara, 10 F.4th at 31 (citing Elkins v. United States, 364 U.S. 206, 218, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960)). Unlike other courts that have conducted similar analyses, the Court has very limited information about the IJ's findings or the evidence presented during the bond redetermination hearing other than that the IJ found Petitioner to be a danger to the community (ECF No. 12-1 at 6) and that “DHS did not file any documents into the record” (ECF No. 1 at 12). The letter provided by Petitioner's public defender in his most recent harassment case stating “[t]he Court did not make any findings that [Petitioner] was a danger to the community or a flight risk” is unpersuasive because it is unknow whether those were elements that the state court would have considered or made findings on. ECF No. 1-1 at 27. If DHS did not introduce any records into the record at the bond redetermination hearing, it leaves the question as to what the basis of the IJ's decision was. Additionally, the government makes much of the fact that Petitioner has a right to seek an additional bond hearing if his circumstances materially change; however, it's possible, not knowing what the IJ based its decision on, the IJ might deny the request for a new bond hearing if none of the circumstances by which the IJ based its decision has changed. See Rodriguez Diaz, 53 F.4th 1189 at 1209 (noting the IJ denied a noncitizen's request for a custody redetermination because the IJ's initial decision was based on the non-citizen's gang affiliation which the vacated conviction did not affect).

It makes sense that “adjudication of dangerousness will naturally tend to begin with the government offering a reason to find a particular person dangerous, with that person then addressing the proffered reason.” Hernandez-Lara, 10 F.4th at 31. The Court is confident that the government has access to information through its own records and investigative tools regarding Petitioner and his alleged danger to the community that it could present at a bond redetermination hearing to prove that Petitioner is a threat to the community.

The Court believes that “ ‘as the period of ․ confinement grows,’ so do the required procedural protections no matter what level of due process may have been sufficient at the moment of initial detention.” Velasco Lopez, 978 F.3d at 853 (quoting Zadvydas, 533 U.S. at 701, 121 S.Ct. 2491). In Demore, the Supreme Court indicated that “if the continued detention became unreasonable or unjustified,” the Due Process Clause may entitle even those mandatorily detained under § 1226(c) “to an individualized determination as to his risk of flight and dangerousness.” Demore, 538 U.S. at 532, 123 S.Ct. 1708 (Kennedy, J., concurring). Similarly, “individuals subject to prolonged detention under § 1226(a) must be afforded process in addition to that provided by the ordinary bail hearing.” Velasco Lopez, 978 F.3d at 854. Petitioner has been detained for over 30 months, “the risk of [ ] erroneous deprivation of [his private] interest” is reduced with the “procedural safeguard” of shifting the burden of proof to the government to prove Petitioner is a danger to the community. See Mathews, 424 U.S. at 335, 96 S.Ct. 893. Accordingly, the second Mathews factor weighs in Petitioner's favor.

3. Government/Public Interest and Administrative Burden

Third, the Court considers “the [g]overnment's interest, including the fiscal and administrative burdens that the additional or substitute procedures would entail.” Mathews, 424 U.S. at 321, 96 S.Ct. 893. The final factor also requires an assessment of the “public interest.” Id. at 347, 96 S.Ct. 893. It is undisputed that the government has an interest in ensuring removable noncitizens appear for their scheduled removal proceedings and an interest in protecting the community. See Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491. It would stand to reason if a noncitizen was neither a flight risk nor dangerous, there would be no government or public interest in detention. There is nothing in the record that indicates the IJ found that Petitioner would be a flight risk, so the focus of this inquiry will be the risk to the community if Petitioner is granted bond.

The government contends that it has an interest in maintaining the existing burden-of-proof framework, but its arguments are not persuasive. ECF No. 12 at 17. The government argues that the “noncitizen is often in the best position to provide evidence relevant to his lack of dangerousness” because “the government may have little to no information about a detained noncitizen.” Id. As noted above, the government has a vast number of resources at its disposal to gather information. Velasco Lopez, 978 F.3d at 855 (“DHS can access the records of other federal agencies and local law enforcement and routinely do so for purposes of the merits proceedings.”) The longer a noncitizen is detained, the more information the government should have on the noncitizen. See id. at 853. Petitioner has been detained for over 30 months and has testified and presented evidence at three merits hearings. It is hard to believe the government would have little information about Petitioner. The government's argument might be more persuasive if Petitioner's merits hearing took place shortly after he was detained, but he had already been detained for over 14 months pursuant to 8 U.S.C. § 1231 at the time of his initial bond hearing.

The government does not explain what the fiscal or administrative burden would be if it was required to carry the burden at a bond hearing. Nor does the government explain what additional resources it would have to expend to be able to prove by clear and convincing evidence that Petitioner is a risk to the community. As noted by the First and Second Circuits, the government, and therefore the public, may save fiscal resources if detention is only used for noncitizens who are proven to be a flight risk or dangerous. See Hernandez-Lara, 10 F.4th at 33; Velasco Lopez, 978 F.3d. at 854 n.11 (“Detention [of noncitizens] costs taxpayers approximately $134 per person, per day, according to ICE's estimates.”). “While the Government's interest may have initially outweighed short-term deprivation of [Petitioner's] liberty interests, that balance shifted once his imprisonment became unduly prolonged.” Id. at 855. As such, the third factor of the three-factor Matthews test is neutral.

Given that the first two of the three factors weigh in Petitioner's favor and the third factor is neutral, the Court finds that the current scheme of placing the burden on Petitioner to prove that he should be released on bond contravenes due process. Continued detention of Petitioner requires an individualized bond hearing before an IJ to comport with due process. Petitioner requests that this hearing be held within seven days of the Court's order. The Court orders that the bond hearing must take place on or before the close of business on August 19, 2024, if Petitioner is still detained after the August 12, 2024 hearing in front of the IJ.

4. Applicable Burden

Having determined that the Government must bear the burden to justify Petitioner's detention under § 1226(a), the question becomes what specific standard to impose. Petitioner is seeking a clear-and-convincing standard. The Government argues that requiring a clear-and-convincing burden of proof “would put the government in an untenable position at many bond hearings,” but does not explain how. ECF No. 12 at 17-18.

In general, the Supreme Court has held that the clear and convincing standard applies to civil detention where liberty is at stake. See, e.g., United States v. Salerno, 481 U.S. 739, 751, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (noting that pretrial detention is permitted “[w]hen the Government proves by clear and convincing evidence that an arrestee presents an identifiable and articulable threat to an individual or the community”); Addington, 441 U.S. at 433, 99 S.Ct. 1804 (upholding the clear and convincing standard for civil confinement of individuals with severe mental illnesses). The Government does not appear to provide a reason to depart from the traditional standards of proof governing civil detention when it comes to determining that Petition poses a danger to the community. The Court recognizes that the rights of noncitizens are not the same as citizens; however, the Court agrees with another court in this District that there is “no persuasive justification to conclude that the same noncitizen must face different standards for the same actions, depending upon the forum, i.e., an administrative charge for removal versus a criminal charge of illegal reentry.” Diaz-Ceja, 2019 WL 2774211 at *11.

In sum, in order to continue detaining Petition under § 1226(a), due process requires that the Government is required to establish that continued detention is justified by clear and convincing evidence.

C. Administrative Procedure Act Claim

Petitioner's second claim is that the BIA's current allocation of the burden of proof violates the APA because the BIA acted in an arbitrary and capricious manner when it changed course in 1999 by placing the burden of proof in bond hearings on noncitizens in Adeniji, 22 I. & N. Dec. at 1102. The Supreme Court has clarified that agencies “are free to change their existing policies as long as they provide a reasoned explanation for the change,” and the agency “display[s] awareness that it is changing position and show[s] that there are good reasons for the new policy.” Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221, 136 S.Ct. 2117, 195 L.Ed.2d 382 (2016) (citations omitted). The Court agrees that in Adeniji, the BIA recognized that it was shifting policy and gave a reasoned explanation for why it was making the shift. Thus, “given the discretion that was created by the silence of the statute on the issue of burden of proof, the agency did not act unlawfully in instituting the new policy.” Huanga v. Decker, 599 F. Supp. 3d 131, 150 (S.D.N.Y. 2022). But that does not mean that placing the burden on noncitizens subject to prolonged detention under § 1226(a) comports with due process.

Further, the Court agrees with the First Circuit that granting relief under the APA rather than on constitutional grounds would only grant Petitioner partial relief. Hernandez-Lara, 10 F.4th at 41-42. If the Court found a violation of the APA, the relief would go back to pre-Adeniji procedures that allocated the burden of proof to the government. It would not entitle Petitioner to a clear and convincing standard. Hernandez-Lara, 10 F.4th at 41-42.

V. PETITIONER'S ADDITIONAL REQUESTS FOR RELIEF

In addition to the individualized bond hearing, Petitioner has requested that the Court grant the following relief:

(1) Assume jurisdiction over this matter;

(2) Enjoin Respondents from transferring [Petitioner] outside of the jurisdiction of the District of Colorado pending the resolution of this case;

(3) Issue a writ of habeas corpus directing Respondents to provide [Petitioner an individualized bond hearing];

(4) Award [Petitioner] attorney's fees and costs under the Equal Access to Justice Act (“EAJA”) as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412, and on any other basis justified under law; and

(5) Grant any other further relief that this Court deems just and proper.

ECF No. 1 at 44–45. The Court grants the first request, as stated above. See supra Section II. As for the second request for relief, the Court denies it as moot, given the entry of this order. The Court grants the third request. See supra Section IV.B. Finally, as for the fourth request for relief, the Court notes that under Local Rule 54.3, “a motion for attorney fees shall be supported by affidavit.” D.C.COLO.LCivR 54.3(a); see also D.C.COLO.LCivR 7.1(d) (“A motion shall be filed as a separate document.”). Therefore, Petitioner may file a motion for attorney fees that complies with the applicable rules.

VI. CONCLUSION

For the reasons stated above, the Verified Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, ECF No. 1, is GRANTED IN PART, to the extent Petitioner seeks a bond hearing, and DENIED IN PART, to the extent Petitioner seeks immediate release; Petitioner's Motion for Temporary Restraining Order, ECF No. 8, is DENIED AS MOOT; and Petitioner's Unopposed Motion to Restrict Public Access, ECF No. 26, is GRANTED IN PART. The Court instructs the Clerk to remove any reference to Petitioner's full name from the docket, including the case citation and list of parties, and substitute Petitioner's initials, L.G., in its place.

On or before the close of business on August 19, 2024, if Petitioner is still detained, Respondents shall take Petitioner before an impartial adjudicator for a constitutionally adequate, individualized bond hearing, in which (1) DHS bears the burden of establishing by clear and convincing evidence that continued detention is justified; (2) the adjudicator is required to meaningfully consider alternatives to imprisonment such as community-based alternatives to detention including conditional release, parole, as well as Petitioner's ability to pay a bond; (3) the adjudicator may not give undue weight to allegations underlying dismissed or pending criminal charges; (4) the adjudicator may not place undue weight on unauthenticated or antiquated documents regarding alleged criminal legal contacts; and (5) the adjudicator must consider Petitioner's mental health diagnoses and trauma when considering criminal legal contacts.

FOOTNOTES

1.   Presumably Petitioner entered the United States sometime in or before 2014 because his Petition notes that his criminal legal contacts began in 2014. ECF No. 1 at 7, n. 3.

2.   The parties did not provide any information regarding the nature of these convictions or who the victim was.

3.   Colo. Rev. Stat. § 18-9-111(1)(a). Once again, the parties did not provide any information regarding the nature of this conviction or who the victim was.

4.   8 C.F.R. § 208.31 allows for a reasonable fear of persecution or torture determination after a removal order has been reinstated.

5.   “Notice of Referral to the Immigration Judge, for full consideration of the request for withholding of removal only.” 8 C.F.R. § 208.31(e)

6.   “[T]he Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of [one of the categories for asylum].” 8 U.S.C. § 1231(b)(3)

7.   There is a box on the form the applicant must check if he “also want[s] to apply for withholding of removal under the Convention Against torture.” See Form I-589 at 1.

8.   DHS admits this move to dismiss was a result of Petitioner's personally identifying information (“PII”) along with the fact he applied for fear-based relief being inadvertently disclosed on its public facing website on November 28, 2028. See ECF No. 12 at 5; see also ECF No. 1-1 at 1-2 (“As an additional part of [its] remedial measures [DHS] is providing this notice of the inadvertent disclosure to the Immigration Court, so that it may proceed as appropriate in the respondent's case.”).

9.   8 USC § 1182(a)(6)(A)(i) provides that “[a]n alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.”

10.   The Court has limited information as to why Petitioner is considered a threat to the community.

11.   Petitioner seeks substantially the same relief in his Petition and his Motion for Temporary Restraining Order. Accordingly, the Court's decision on his Petition moots his Motion.

12.   District courts lack jurisdiction to review an IJ's bond determination. See 8 U.S.C. § 1226(e) (“The Attorney General's discretionary judgment regarding the application of [§ 1226] shall not be subject to review.”) But district courts do have “jurisdiction under 28 U.S.C. § 2241 to consider any error in [Petitioner's] agency proceedings, including any claimed due process violation.” Rodriguez Diaz v. Garland, 53 F.4th 1189, 1209 (9th Cir. 2022).

13.   The Court appreciates the involuntary civil detention analysis used in Diaz-Ceja v. McAleenan, which considered “the government's and the individual's respective interests, and then consider whether the existing process adequately balanced and protected the two.” No. 19-CV-00824-NYW, 2019 WL 2774211, at *6 (D. Colo. July 2, 2019) (Wang, J.). The Court notes the similarity between the analysis used in Diaz-Ceja and the three-part balancing test articulated in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). See Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (analyzing “what standard should govern in a civil commitment proceeding” by “assess[ing] both the extent of the individual's interest in not being involuntarily confined indefinitely and the state's interest in committing the emotionally disturbed under a particular standard of proof” (citing Mathews, 424 U.S. at 335, 96 S.Ct. 893)).

14.   Petitioner asks that if the Court finds his original bond hearing adequate that the Court apply the six-factor test it has previously used to consider whether a detention is unconstitutionally prolonged. ECF No. 1 at 28; see also Sheikh v. Choate, No. 22-CV-01627-RMR, 2022 WL 17075894, at *3 (D. Colo. July 27, 2022) (Rodriguez, J.) (ordering an individualized bond hearing for a noncitizen detained under 8 U.S.C. § 1226(c) for 13 months). The Court does not believe the prolonged detention multi-factor test is applicable here, in part, because Petitioner's detention is not indefinite. Petitioner has the right to request another bond hearing with a change of circumstances. 8 C.F.R. § 1003.19(e). The Court notes that if Petitioner had filed his petition when he was detained under 8 U.S.C. § 1231, the six-factor prolonged detention analysis would have been applicable. See Juarez v. Choate, 1:24-CV-00419-CNS, 2024 WL 1012912, at *6 (D. Colo. Mar. 8, 2024) (applying the six-factor prolonged detention balancing test for a noncitizen detained under 8 U.S.C. § 1231).

REGINA M. RODRIGUEZ, United States District Judge