Rajnish v. Jennings

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 RAJNISH RAJNISH, Case No. 3:20-cv-07819-WHO 8 Plaintiff, ORDER GRANTING WRIT OF 9 v. HABEAS CORPUS 10 DAVID W. JENNINGS, et al., Re: Dkt. No. 10 Defendants. [12] 13 INTRODUCTION 14 In the United States, the government cannot generally hold people for prolonged, 15 incarceration-like detention merely because they are the subject of a civil or criminal proceeding. 16 Instead, the government is usually required to prove that, if someone were released from 17 detention, he or she would be a flight risk or a danger to themselves or others. And its burden is 18 high--clear and convincing evidence, not just a preponderance. Those rules are rooted in core 19 constitutional principles. Yet for immigration proceedings, the executive branch has written a 20 different set of rules. Under those rules, the burden is placed on the noncitizen to prove that he is 21 not a flight risk or danger to the community. 22 That was the burden placed on habeas petitioner Rajnish Rajnish, who is currently detained 23 in the Yuba County Jail by immigration authorities. Rajnish, who is from India, entered the 24 country while he was a minor. After he appeared in removal proceedings, an immigration judge 25 (“IJ”) granted him withholding of removal based on a finding that he had been persecuted for 26 political reasons in India and likely would be again if he were returned. Under that decision, 27 Rajnish may remain in the United States. But because the government appealed the decision, 1 Before Rajnish was granted withholding of removal, he appeared at a hearing in which the 2 burden was placed on him to show why he should be released on bond. An IJ then found that he 3 had not met that burden. That was in April 2020; in the nine months since, Rajnish has remained 4 in custody and shown signs of mental illness. Even after the IJ’s withholding-of-removal 5 determination, the government has not provided him a second hearing to reevaluate whether he 6 would be a flight risk or danger. 7 This habeas petition seeks narrow relief, a new hearing to determine whether Rajnish may 8 be released on bond while his case proceeds. The petition is GRANTED. Rajnish’s bond hearing 9 violated the constitutional guarantee of due process because the IJ unconstitutionally placed the 10 burden on Rajnish to prove he was not a flight risk or danger to the community. That burden 11 belongs with the government, which must prove that a noncitizen is a flight risk or danger to the 12 community by clear and convincing evidence to continue detaining him. This aside, procedural 13 due process required the government to afford Rajnish at least one further hearing in the 14 subsequent nine months he was detained to reexamine the decision. [15] Accordingly, as explained more fully below, the respondents1 are ORDERED to provide 16 Rajnish with a bond hearing or, if they do not do so within 21 days, to release him. This new bond 17 determination must comply with the Constitution. The burden must be on the government to 18 prove by clear and convincing evidence that Rajnish should be detained while his case proceeds. 19 BACKGROUND 20 On the record before me, there are no material facts in dispute. The facts are drawn from 21 several IJs’ decisions and declarations in the record. 22 Rajnish is a citizen and native of India. See Oral Decision and Order of the Immigration 23 Judge (“IJ Order”) [Dkt. No. 10-8] 1. At age 16, he left India and entered the United States in 24 January 2017 without inspection. Id. 2; Declaration of Kishwer Vikaas (“Vikaas Decl.”) [Dkt. No. [26] 1 The respondents are David W. Jennings, Acting Field Office Director of the San Francisco Field Office of Immigration and Customs Enforcement’s (“ICE”) Enforcement and Removal [27] Operations; Tony H. Pham, Senior Official Performing the Duties of the Director of ICE; William 1 10-3] ¶ 4. He was apprehended by immigration authorities and determined to be an 2 “unaccompanied alien child” under 6 U.S.C. § 279 (g)(2). Vikaas Decl. ¶ 4. Among other things, 3 that designation reflected that Rajnish had no parent or guardian in the United States. Rajnish was 4 eventually released to a “distant relative” in California. Id. In March 2018, Rajnish, then 17, filed 5 an application for asylum and withholding of removal with the assistance of counsel. Id. ¶ 5 . But 6 in May 2018, he appeared in removal proceedings in San Francisco after receiving a Notice to 7 Appear. Id. ¶ 6 . At the first hearing, the IJ granted an unopposed continuance so that Rajnish 8 could show that his application had been filed with the United States Citizenship and Immigration 9 Services (“USCIS”) Asylum Office, which would have initial jurisdiction over it. Id. The hearing 10 was continued again, to February 2020, so that USCIS could adjudicate the application. Id. 11 In August 2019, Rajnish, then 18 years old, forcibly kissed a ten-year old girl in a store for 12 two to three seconds and showed her pornography on his phone. Id. ¶ 7 ; Declaration of 13 Deportation Officer Edward Winans [Dkt. No. 13-1] ¶ 10. He pled guilty to misdemeanor 14 annoying or molesting a child under California Penal Code § 647.6(a). Vikaas Decl. ¶ 7. He was 15 sentenced to 240 days in jail and three years of probation. Id. After serving four months in jail (in 16 part due to good time credits), he was released on December 30, 2019. Id. ¶ 8. According to the 17 petition, Rajnish was “immediately” apprehended by Immigration and Customs Enforcement 18 (“ICE”). Id. Since then, he has been in ICE custody in the Yuba County Jail. Id. 19 In January 2020, Rajnish appeared again in immigration court. Id. ¶ 9. His counsel 20 withdrew from representing him, so the hearing was continued until February. Id. In February, it 21 was again continued because he was identified as a potential class member in Franco-Gonzalez v. 22 Holder, a class action that requires the government to provide counsel for certain noncitizens with 23 mental disabilities. Id. ¶ 11. In March, the IJ conducted a competency inquiry, ordered Rajnish 24 evaluated by a psychologist, and continued the hearing. Id. ¶ 13. 25 In April 2020, now with counsel, Rajnish appeared for the bond hearing.2 Id. ¶ 14. The IJ [27] 2 These hearings are sometimes referred to as “redetermination hearings” even if they are the first 1 found that Rajnish had the burden of proof to establish he was eligible to be released on bond. Id. 2 At the hearing, a psychologist testified that Rajnish likely experienced a schizophrenia spectrum 3 disorder, was “medically compliant,” and posed a low risk of recidivism. Id. The IJ ultimately 4 denied the request for a bond, finding Rajnish was a flight risk and danger to the community. Id.; 5 Dkt. No. 10-5. 6 At the end of April, the IJ finished the competency inquiry and found Rajnish competent to 7 proceed on his asylum application without an attorney, though his bond counsel agreed to 8 represent him in the removal proceeding. Vikaas Decl. ¶ 15. A hearing was scheduled for May. 9 Id. The hearing was again continued roughly two weeks at Rajnish’s request so that USCIS could 10 adjudicate his application. Id. ¶ 16. It scheduled asylum interviews for June. Id. ¶ 17. 11 Consequently, the hearing was continued until the end of June so that the asylum interviews could 12 be completed. Id. ¶ 18. Due to the COVID-19 pandemic, USCIS was unable to schedule the 13 interviews and said it could not provide a firm date within the following three months. Id. ¶ 19. 14 Accordingly, Rajnish decided—in his words, he was “forced”—to forego USCIS adjudication 15 because it would require further detention of an indefinite duration. See Amended Petition for 16 Writ of Habeas Corpus (“Pet.”) [Dkt. No. 10] ¶ 41; Vikaas Decl. ¶ 20. 17 On July 23 and 30, 2020, another IJ heard the claims for asylum and withholding of 18 removal. Vikaas Decl. ¶ 21. That IJ denied Rajnish asylum but found he was entitled to 19 withholding of removal because he established that there was past persecution and that he would, 20 more likely than not, be persecuted in the future. Id. ¶ 21; see IJ Order 5–6. The IJ found Rajnish 21 credible. IJ Order 4. He presented testimony that he had been persecuted by a rival political party 22 for his political affiliation; he testified he was beaten and that he and his family were threatened. 23 Id. 2–3. Rajnish also presented evidence that rival party members still searched for him and 24 presented a threat to his family. Id. He said that the police were unwilling to help. Id. Expert 25 reports also attested to the party’s use of these types of tactics. Id. Additionally, the IJ found that 26 Rajnish’s misdemeanor was not a “particularly serious crime” that would bar withholding of 27 removal. Id. 4; see Delgado v. Holder, 648 F.3d 1095 , 1101–02 (9th Cir. 2011) (discussing the 1 The government appealed to the Board of Immigration Appeals (“BIA”) on August 25, 2 2020. Vikaas Decl. ¶ 22. The next day, Rajnish filed an appeal of the IJ’s denial of his asylum 3 claim. Id. That appeal is still pending. Id. In late September 2020, Rajnish filed a motion for a 4 new bond redetermination hearing, as federal regulations permit him to do. Id. ¶ 23; see 8 C.F.R. 5 § 1003.19(e). An IJ found, however, that there were no materially changed circumstances and 6 declined to hold a new hearing. Id.; Dkt. No. 10-10. Rajnish appealed that denial in late October 7 2020. Vikaas Decl. ¶ 24. Rajnish also sought release through Zepeda Rivas v. Jennings, a class 8 action involving noncitizens at Yuba County Jail being adequately protected from COVID-19. 9 The Hon. Vince Chhabria denied two bail applications from him. See Zepeda Rivas v. Jennings, 10 No. 3:20-cv-02731-VC, Dkt. Nos. 206, 678. 11 Rajnish has presented evidence that this prolonged detention has resulted in a degradation 12 of his mental health. As noted, a clinical psychologist who examined Rajnish found it was likely 13 he has a schizophrenia spectrum disorder. That psychologist also found that “Mr. Rajnish will 14 decompensate psychologically if he continues to be detained at Yuba County Jail.” Howard Decl. 15 ¶ 4. That psychologist explained that there is a “direct connection” between the emergence of 16 “psychosis” and “stress and isolation.” Id. But, according to her, schizophrenia spectrum 17 disorders are treatable, especially if there is “early intervention.” Id. ¶ 5. Rajnish is at the age in 18 which these disorders often begin manifesting; the psychologist therefore opined that now is the 19 time when intervention would be effective, but that detention might cause Rajnish to “miss the 20 window of opportunity” to effectively treat this mental illness. Id. The psychologist also 21 explained that she “ha[s] a large professional network and ha[s] had success with connecting 22 immigrants with referrals for mental health care. I have provided similar referrals to other 23 individuals who were released from ICE custody and if Mr. Rajnish were released, I can 24 coordinate with his counsel to help him find referrals in Merced County for counseling and mental 25 health care.” Id. ¶ 6. And the psychologist concluded that, employing a standard psychological 26 evaluation tool, Rajnish is a “low risk” for recidivism, so long as he is “at baseline.” Id. ¶ 7. His 27 risk would decrease further if he had “proper care and support outside of detention.” Id. 1 magistrate judge. Dkt. No. 1. On November 10, the case was reassigned to me and the parties 2 agreed to a stipulated briefing schedule. Dkt. Nos. 8, 9, 11. Pursuant to that briefing schedule, 3 Rajnish filed an amended petition on November 12, the respondents filed their return on 4 December 1, and Rajnish filed his traverse December 8. 5 DISCUSSION 6 Under 28 U.S.C. § 2241 , federal district courts may issue writs of habeas corpus for one 7 “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 8 2241(c)(3). 9 Rajnish has been detained under 8 U.S.C. § 1226 (a). As a general matter, that statute 10 permits the Attorney General to issue a warrant under which the noncitizen is “arrested and 11 detained pending a decision on whether the alien is to be removed from the United States.” In 12 contrast, 8 U.S.C. § 1226 (c)—which Rajnish is not detained under—permits the Attorney General 13 to take into custody noncitizens who commit certain crimes that render them inadmissible or 14 deportable. Under Section 1226(a) but not Section 1226(c), the Attorney General may release the 15 noncitizen on bond or conditional parole. See Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018) 16 (setting out the Section 1226 framework). The parties do not dispute that Rajnish is, accordingly, 17 statutorily eligible to be let out on bond instead of detained in jail while his proceeding is pending. 18 I. BURDEN OF PROOF IN BOND DETERMINATIONS 19 Rajnish seeks habeas relief on two grounds. The first is that, at April 2020 bond hearing—his 20 only bond hearing before an IJ—the IJ unconstitutionally placed the burden of proof on him to 21 demonstrate he was not a flight risk or danger to the community. Pet. 12–13. As a result, he 22 contends that the bond determination was unconstitutional and he is entitled to a new one at which 23 the burden is placed on the government to prove that he is a flight risk or danger to the 24 community. 25 A. The Proper Burden 26 “Freedom from imprisonment—from government custody, detention, or other forms of 27 physical restraint—lies at the heart of the liberty that [the Fifth Amendment’s Due Process] Clause 1 government seeks to detain people for a prolonged period—for instance, pretrial detention for 2 criminal defendants or civil commitment for those whose mental illness makes them a threat to 3 themselves or others—the government bears the burden of proving that the person should be 4 detained. See, e.g., United States v. Salerno, 481 U.S. 739, 751 (1987) (pretrial detention); 5 Addington v. Texas, 441 U.S. 418 , 425–27 (1979) (civil commitment). Which party bears the 6 burden of proof is no empty legalism: it “serves to allocate the risk of error between the litigants 7 and to indicate the relative importance attached to the ultimate decision.” Addington, 441 U.S. at 8 423. That is no small thing given that “the function of legal process is to minimize the risk of 9 erroneous decisions.” Id. at 425 . 10 “[C]ivil commitment for any purpose constitutes a significant deprivation of liberty that 11 requires due process protection.” Addington, 441 U.S. at 425 . As a result, “[t]he Supreme Court 12 has repeatedly reaffirmed the principle that due process places a heightened burden of proof on the 13 State in civil proceedings in which the individual interests at stake are both particularly important 14 and more substantial than mere loss of money.” Singh v. Holder, 638 F.3d 1196, 1204 (9th Cir. 15 2011) (internal quotation marks and alteration omitted). In such circumstances, the government is 16 required to show that detention is warranted by the heightened clear-and-convincing-evidence 17 standard. Id. 18 It is also settled that the Due Process Clause applies to noncitizens in removal proceedings. 19 See, e.g., Zadvydas, 533 U.S. at 690; Reno v. Flores, 507 U.S. 292, 306 (1993). Despite this and 20 the law discussed above, the executive branch has placed the burden of proof on noncitizens in 21 removal proceedings to show they are entitled to a bond, rather than detention. See 8 C.F.R. § 22 236.1(c)(8) (governing determination by an immigration officer); In Re Adeniji, 22 I. & N. Dec. 23 1102, 1113 (BIA 1999) (“[T]he respondent must demonstrate that his release would not pose a 24 danger to property or persons, and that he is likely to appear for any future proceeding.”) (internal 25 quotation marks and alteration omitted). 26 Placing this burden on the noncitizen violates the Constitution. In Singh, the Ninth Circuit 27 addressed almost precisely the situation here. It held that the government must bear the burden to 1 flight risk or danger to the community during a bond hearing. 638 F.3d at 1203 . The Ninth 2 Circuit looked to the consistent line of Supreme Court cases holding that due process requires the 3 government to bear the burden to justify detention when important liberty interests are at stake. [4] Id. at 1203–04. The court, relying on the Supreme Court’s teachings, explained that “it is 5 improper to ask the individual to share equally with society the risk of error when the possible 6 injury to the individual—deprivation of liberty—is so significant, a clear and convincing evidence 7 standard of proof provides the appropriate level of procedural protection.” Id. (internal quotation 8 marks omitted). Notably, the court rejected the government’s argument that “detaining people like 9 Singh is distinguishable from other sorts of civil commitment because removal is its ultimate 10 goal.” Id. at 1204 . It held that this degree of detention “for any purpose” is a deprivation of 11 liberty. Id. (quoting Addington, 441 U.S. at 427 ) (emphasis in Singh). 12 A number of other courts facing this question have agreed that the Due Process Clause 13 requires the government to meet this burden with clear and convincing evidence. The Second 14 Circuit has held, for example, that the burden in a Section 1226(a) bond hearing should be on the 15 government by clear and convincing evidence. Velasco Lopez v. Decker, 978 F.3d 842 , 855–56 16 (2d Cir. 2020). One court surveyed these cases and described this view as the “consensus view 17 among District Courts.” Ixchop Perez v. McAleenan, 435 F. Supp. 3d 1055 , 1062 (N.D. Cal. 18 2020) (collecting cases); see also, e.g., Darko v. Sessions, 342 F. Supp. 3d 429 (S.D.N.Y. 2018) 19 (“Joining with a growing body of persuasive authority, the Court concludes that the Due Process 20 Clause required that the Government bear the burden of proving that Ms. Darko’s detention was 21 justified, and that it was required to meet its burden by clear and convincing evidence.”); Brito v. 22 Barr, 415 F. Supp. 3d 258 , 266 (D. Mass. 2019) (“[T]he Court holds that the Due Process Clause 23 requires the Government bear the burden of proof in § 1226(a) bond hearings.”); Singh v. Barr, [24] 400 F. Supp. 3d 1005 , 1018 (S.D. Cal. 2019) (“The Court agrees with the reasoning of its sister 25 courts and concludes that the Fifth Amendment’s Due Process Clause requires the Government to 26 bear the burden of proving, by clear and convincing evidence, that continued detention is justified 27 at a § 1226(a) bond redetermination hearing.”). There are many more district court cases cited in 1 Even if general due process principles did not support Rajnish’s position, which they do, 2 Singh directly leads to the conclusion that, at bond hearings for noncitizens in removal 3 proceedings, the government must bear the burden of proof by clear and convincing evidence. 4 The respondents resist this straightforward application of Singh. Their primary response is that 5 Singh involved “Casas bond hearings,” while this case does not. A Casas hearing arises from the 6 Ninth Circuit’s decision in Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 7 (9th Cir. 2008). As the court characterized it in Singh, Casas “held that aliens facing prolonged 8 detention while their petitions for review of their removal orders are pending are entitled to a bond 9 hearing before a neutral immigration judge.” Singh, 638 F.3d at 1200 . Rajnish’s bond hearing 10 was not a Casas hearing, the respondents point out. Respondents’ Return to Petition for Writ of 11 Habeas Corpus (“Ret.”) 7–8. And Casas, the respondents say, was about noncitizens subject to 12 prolonged detention who otherwise would not receive a bond hearing while their petitions for 13 review were pending. Id. Rajnish, in contrast, did receive a bond under the executive branch’s 14 procedures and, on respondents’ account, is not subject to prolonged detention. Id. 8–9. 15 The respondents’ attempt at fashioning a meaningful distinction between Singh and this 16 case does not persuade. See, e.g., Ixchop, 435 F. Supp. 3d at 1061 (“The Government’s attempt to 17 cabin Singh to only apply to Casas hearings is not availing.”). To start, the liberty interest in a 18 Casas hearing and the bond hearing here are the same: the noncitizen will be detained—often, as 19 here, in incarceration-like conditions—pending resolution of proceedings. The respondents 20 counter that a noncitizen owed a Casas hearing might be detained for longer than Rajnish has 21 been—in Casas, the noncitizen had been detained for seven years. But any length of detention 22 implicates the same liberty fundamental rights. While the consequences of a longer detention 23 might be more severe than a shorter one, the government offers no principled reason why the 24 government should not have to meet the same bar when taking away the same liberty. 25 More fundamentally, the government misunderstands Singh’s rationale. While Singh 26 addressed Casas hearings on its facts, there is nothing in its reasoning about burdens of proof that 27 supports restricting its holding to that class of bond hearings. To the contrary, that reasoning 1 hearing. Singh was based on, among other things, the principle that “due process requires 2 adequate procedural protections to ensure that the government’s asserted justification for physical 3 confinement outweighs the individual’s constitutionally protected interest in avoiding physical 4 restraint.” Singh, 638 F.3d at 1203 (quoting Casas, F.3d at 950 and Zadvydas, 533 U.S. at 690) 5 (internal quotation marks omitted). Rajnish’s interest is no less implicated than a noncitizen at a 6 Casas hearing. The respondents’ position, moreover, would create the exceedingly odd 7 constitutional rule that noncitizens have the burden of proof at an initial hearing to determine 8 whether they should be detained in the first place but that, if there is no such hearing, the burden at 9 some point shifts to the government during confinement. The respondents identify no principled 10 reason why it should be easier to confine people in the first place than to continue their 11 confinement. 12 The respondents next suggest that Singh (and Casas) did not survive the Supreme Court’s 13 decision in Jennings v. Rodriguez, 138 S. Ct. 830 (2018). Ret. 9–10. In that case, the Ninth 14 Circuit held that Section 1226 (not the Due Process Clause) required bond hearings every six 15 months. Rodriguez v. Robbins, 804 F.3d 1060 , 1065–87 (9th Cir. 2015), rev’d sub nom. Jennings, [16] 138 S. Ct. 830 . In reaching that conclusion, the Ninth Circuit said that to hold otherwise would 17 “raise a serious constitutional problem” and it applied, the constitutional avoidance canon to read 18 the requirement into the statute itself. The Supreme Court reversed. It held that the statute was 19 not “fairly susceptible” to the six-month requirement and, accordingly, invocation of the 20 constitutional avoidance canon was improper. Jennings, 138 S. Ct. at 842 . The court went on to 21 explicitly state that it was remanding so that the lower courts could address the constitutional issue 22 in the first instance. Id. at 851 . It should be more than clear—as numerous other district courts 23 have found after Jennings—that Jennings does not touch, let alone decide, this issue. Not only did 24 it only concern statutory interpretation, not constitutional due process, it has nothing to say about 25 constitutionally required burdens of proof.3 [26] 3 The respondents rely on a class of statements from Jennings and other cases that they contend [27] support their position. One exemplary statement is, “the alien may secure his release if he can 1 The fact that Singh is both good law and entirely applicable dooms the respondents’ 2 arguments here. Nonetheless, I also explain why several other of their contentions are also 3 incorrect. The respondents repeatedly attempt to limit cases imposing a clear-and-convincing4 evidence standard to any context except immigration. See, e.g., Ret. 13. But their authority for 5 that sweeping argument is simply a series of broad statements from the Supreme Court to the 6 effect that “Congress may make rules as to aliens that would be unacceptable if applied to 7 citizens.” Demore v. Kim, 538 U.S. 510, 522 , 123 S. Ct. 1708, 1717 , 155 L. Ed. 2d 724 (2003). 8 Those capacious statements are unhelpful here because the question still remains whether the Due 9 Process Clause has been complied with. The Supreme Court and Ninth Circuit have been clear 10 that that Clause applies to noncitizens in removal proceedings. No one here disputes Congress’s 11 general power to detain noncitizens; all that is in dispute is what rights noncitizens are entitled to 12 related to that detention. And, parenthetically, Congress did not impose the burden of proof on 13 noncitizens, the executive did. 14 The respondents also assert that because the Court has upheld categorical detention with 15 no bond determinations under 1226(c), it follows that it is constitutional to detain noncitizens after 16 individualized hearings in which the burden is on them. Demore, 538 U.S. 531 . As explained, 17 1226(c) makes detention mandatory for noncitizens who have committed certain crimes. But 18 Denmore’s “limited holding,” Casas, 535 F.3d at 950 , turned on whether those particular prior 19 criminal convictions entitled the government to detain noncitizens due to the unique “flight risk” 20 Congress found they posed. See Demore, 538 U.S. at 520–21. Section 1226(a), in sharp contrast, 21 is not predicated on any such criminal convictions that serve as a categorical proxy for flight risk. 22 That is why, regardless of my holding on this issue, noncitizens like Rajnish are entitled to 23 individualized bond determinations.4 [25] argument is entirely misplaced: the Court in these miscellaneous statements merely described the regulatory framework. [26] 4 The respondents also rely on Carlson v. Landon, 42 U.S. 524 (1952), which upheld denial of bail [27] to noncitizens in removal proceedings who were members of the Communist Party and were 1 The respondents also rely on Zadvydas, which dealt with noncitizens who had already been 2 found to be unlawfully present and had a final order of removal entered against them. 533 U.S. at 3 682. A federal statute not at issue here permitted detention of these noncitizens and the Court, 4 employing the constitutional avoidance canon, interpreted the statute to contain an implicit 5 requirement that the noncitizen only be detained for a reasonably necessary period to secure his or 6 her removal. Id. The respondents rely on the Court’s statement that “[a]fter [a] 6–month period, 7 once the alien provides good reason to believe that there is no significant likelihood of removal in 8 the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut 9 that showing.” Id. at 701. 10 As an initial matter, Zadyvdas predated Singh, and Singh relied on it; I cannot manufacture 11 inconsistency where the Ninth Circuit has perceived none. Moreover, Zadyvdas works largely 12 against the respondents: it reaffirms that the Due Process Clause applies to noncitizens in removal 13 proceedings. And to the extent it dealt with burdens of proof, the burden was placed on the 14 noncitizen after a final order of removability and the burden concerned only whether the 15 noncitizen could show that removal was likely or not. By that point, therefore, the government 16 had already justified detaining the noncitizen initially because it was imminently planning to 17 remove him. 18 Finally, the respondents point to a series of lower court cases to support their position. As 19 an initial matter, I am bound by Singh, not other circuits’ law. And those courts’ decisions are not 20 persuasive in any event. In Borbot v. Warden Hudson County Correctional Facility, the Third 21 Circuit held that the burden could constitutionally remain with the noncitizen in a subsequent bond 22 hearing. 906 F.3d 274, 280 (3d Cir. 2018). That court did not address any of the Supreme Court’s 23 cases holding that such detentions in non-immigration cases must be justified by the government 24 via clear and convincing evidence.5 The respondents also rely on a single case from a district [25] 5 One district court outside of the Third Circuit has read Borbot to not apply to initial bond [26] determinations because it itself concerned only a subsequent one. Ortiz v. Tompkins, No. CV 1812600-PBS, 2019 WL 7755299 , at *1 (D. Mass. Jan. 29, 2019); Doe v. Tompkins, No. CV 1827 12266-PBS, 2019 WL 8437191 , at *1 (D. Mass. Feb. 12, 2019). As explained above in addressing 1 court in this Circuit from seven years ago that held to the contrary. See Manzanarez v. Holder, 2 No. CIV. 13-00354 SOM, 2013 WL 5607167 (D. Haw. Oct. 11, 2013). For the reasons explained, 3 I join the strong majority of courts that disagree. 4 It is worth emphasizing how narrow this holding is. If the government has determined 5 someone is a flight risk or danger to the community and, accordingly, challenges his bond 6 application, the government presumably has a basis for doing so grounded in evidence. It need 7 only present clear and convincing evidence to a neutral adjudicator, as prosecutors do every day 8 across the country, even in the most serious of criminal cases. 9 B. Prejudice 10 “When it is necessary to demonstrate prejudice as a result of a constitutional violation, the 11 alien must show that the inadequate procedures occurred in a manner so as potentially to affect the 12 outcome of the proceedings.” Walters v. Reno, 145 F.3d 1032, 1044 (9th Cir. 1998). “Ordinarily, 13 there must be plausible scenarios in which the outcome of the proceedings would have been 14 different, absent the constitutional violation.” Id. 15 The IJ’s unconstitutional burden-shifting plausibly prejudiced Rajnish because he plausibly 16 would have been granted a bond if the burden had been on the government. Rajnish, at that point, 17 had already filed for asylum, indicating intent to lawfully remain in the United States. He came 18 here in the first place (as the IJ eventually found) after facing political persecution and believed he 19 was likely to face political persecution upon returning. Even now, the only substantive evidence 20 the respondents rely on to show he is a risk is the misdemeanor. Ret. 14–15. Rajnish’s behavior 21 was criminally blameworthy, but that does not create an automatic risk of flight or future threat to 22 the community. The crime’s connection to a flight risk is particularly weak as Rajnish had already 23 served his criminal sentence. Accordingly, I cannot conclude that there is no plausible scenario in 24 which an IJ reasonably found that the government would not have met its burden. 25 C. Conclusion 26 Rajnish was constitutionally entitled to a bond determination at which the burden was on 27 the government to prove that he was a flight risk or danger to the community by clear and 1 burden on Rajnish, it violated due process. Accordingly, Rajnish is entitled to a new bond 2 determination hearing. 3 II. SUBSEQUENT HEARING DUE TO PROLONGED CONFINEMENT 4 Because I conclude that Rajnish’s initial bond hearing violated the Due Process Clause, he 5 is entitled to a new bond determination. I also find that, in the alternative, he would be entitled to 6 another bond hearing under Mathews v. Eldridge, 424 U.S. 319 .6 7 “The fundamental requirement of due process is the opportunity to be heard at a 8 meaningful time and in a meaningful manner.” Mathews, 424 U.S. at 333 (internal quotation 9 marks omitted). To determine whether process complies with the Constitution, Mathews imposes 10 a three-part test. Courts consider (1) the individual’s interest, (2) the government’s interest, and 11 (3) the risk of erroneous deprivation of the right absent the further procedures. Id. at 334 . “Due 12 process is flexible and calls for such procedural protections as the particular situation demands.” [13] Id. (internal quotation marks and citation omitted). 14 As noted, Jennings explicitly did not consider whether the Constitution requires periodic 15 bond determinations for noncitizens detained while their proceedings are pending. 138 S. Ct. at 16 851. The Ninth Circuit had similarly not reached that issue on the way to the Court because it 17 interpreted the statutes to include that requirement. The constitutional reasons it did so, however, 18 are instructive and were not addressed (or overturned) by the Court. In its pre-Jennings decision, 19 the Ninth Circuit explained that “prolonged” detention without bond hearings would raise 20 constitutional concerns; it held that detention became prolonged at six months. Rodriguez v. 21 Robbins, 715 F.3d 1127, 1139 (9th Cir. 2013). With that concern in mind, I apply the Mathews 22 analysis. 23 First, there is no genuine dispute that Rajnish has a weighty interest being free of 24 detention, or at least only being detained if justified. See Ret. 21. The respondents’ reply that, 25 even though this is so, Rajnish’s interest is diminished because (1) this case takes place in the [27] 6 Rajnish applies both the Mathews test and the “prolonged detention” analysis. See Pet. 16. 1 removal context and (2) Rajnish requests to be free from detention “in the United States.” Id. But 2 it is beyond dispute that, even in immigration proceedings, “[f]reedom from imprisonment—from 3 government custody, detention, or other forms of physical restraint—lies at the heart of the liberty 4 that Clause protects.” Zadvydas, 533 at 690. While the Court has, as discussed, given Congress 5 some special leeway in immigration matters, that does not diminish Rajnish’s interest in being free 6 from detention—or at least his strong interest in only being detained if the government can 7 adequately show he is a flight risk or threat to the community. Rajnish, additionally, is currently 8 in Yuba County Jail; there is nothing on this record showing that his material conditions differ 9 from de jure incarceration. This is all particularly true in light of the Ninth Circuit’s holding that 10 “[w]hen detention crosses the six-month threshold and release or removal is not imminent, the 11 private interests at stake are profound.” Diouf v. Napolitano, 634 F.3d 1081 , 1091–92 (9th Cir. 12 2011). 13 All this aside, Rajnish has recently been assessed to likely have a serious mental illness. 14 The unrebutted expert evidence on this record is that he is likely to further deteriorate given the 15 well-established effects of incarceration, stress, and isolation on such disorders. If he were 16 released, in contrast, the unrebutted evidence is that intervention can occur that is known to lead to 17 improvements when done early and aggressively enough. 18 Second, on the facts of this case, the risk of erroneous deprivation of Rajnish’s rights 19 absent another hearing is high. Put another way, the value added by another hearing is great. 20 Rajnish has now been held for almost nine months since his initial bond hearing. He has been 21 held for roughly a year in ICE custody. His first (and only) bond hearing was unconstitutional and 22 assigned the risk of error to him, not to the government. Even if it had not, there have been 23 important developments in the last nine months. For one, Rajnish was adjudicated by an IJ to be 24 entitled to withholding of removal. That reality almost certainly makes him less of a flight risk— 25 or, at the very least, is something an IJ would seriously consider. For another, Rajnish now, it 26 appears, has a realistic, psychologist-approved plan if he were let out on bond that would, the 27 psychologist states, help lower his risk of recidivism. 1 the class action referenced above and denied him bail. Ret. 21. But that class action provides 2 emergency relief due to COVID-19 in the form of release while habeas petitions are pending. It is 3 not a replacement for an individualized determination by an IJ at which the government bears the 4 burden of proof about being permitted to be out on bond generally. See Zepeda Rivas v. Jennings, [5] 445 F. Supp. 3d 36 , 40–41 (N.D. Cal. 2020). The respondents next contend that Section 1226(a) 6 and its implementing regulations already provides sufficient procedural protections. Id. 22 . The 7 current procedures, however, are crucially lacking any mechanism by which, after a reasonably 8 lengthy period of time, a noncitizen’s eligibility for release on bond is reexamined. The closest 9 procedure the respondents can point to is the ability to request reexamination based on changed 10 circumstances. That request can be quickly dismissed and is far from a full hearing. Further, in 11 making that request, the noncitizen bears the burden of convincing an IJ that circumstances have 12 changed. This procedure therefore does not live up to Singh’s requirement that the government 13 justify the detention it imposes.7 14 The respondents also contend that Rajnish’s initial hearing was sufficient process. Ret. 15 22–23. That hearing was unconstitutionally tainted, so it was not. Aside from that, having an 16 initial hearing does not address the core concern that months or years will drag by and those 17 whom the government can no longer justify de facto incarceration for are nonetheless detained. 18 Relatedly, the respondents argue that, under current regulations, Rajnish received adequate process 19 because he can appeal to the BIA. Yet BIA review is only of the initial bond decision and even 20 then can take many months. At least on these facts, such a drawn out appeal process is 21 insufficient. 22 Third, the government’s interest in an effective immigration system and in detaining those 23 who pose a flight risk or danger to the community is undoubtedly important. But here, many of 24 the usual equities are the government’s side of the scale are not present. For instance, the 25 respondents argue that there is a public interest in “prompt execution of removal orders,” making [26] 7 The respondents also point to other, more peripheral procedural protections, such as a decision [27] by the Department of Homeland Security to release the noncitizen on its own initiative. But the 1 Rajnish’s continued “presence” important. Ret. 23. But Rajnish has been granted withholding of 2 removal, so there is no removal order at present. And, in any case, all I order today is a hearing; if 3 the IJ determines that he is a flight risk then he will remain detained. The respondents also argue 4 that “aliens, and not the government, are in the best position to provide evidence relevant to their 5 lack of dangerousness, or other factors, including family ties to the United States, a record of 6 employment, and an established place of residence, which may demonstrate that they are not a 7 flight risk.” Ret. 24. But, of course, the government must have some justification for detaining 8 Rajnish—otherwise it would have no reason to oppose a bond. If that justification is sufficiently 9 strong in the government’s view to oppose a bond before the IJ and before me today, presumably 10 it believes it is strong enough in front of a future IJ. 11 Balancing these three considerations, it is clear that another hearing is warranted, even if 12 the first had been constitutional. Rajnish’s interest is weighty: his fundamental rights are 13 implicated and have been for nearly nine months. A new hearing would serve a valuable purpose 14 in combatting erroneous deprivation of Rajnish’s constitutional rights. And the government’s 15 interest is not seriously undermined, including because the relief requested will give the 16 government ample opportunity to demonstrate that the detention is justified. 17 For clarity, I do not hold that Rajnish is entitled to a new hearing merely because more 18 than six months have passed. Instead, I apply Mathews and hold that, on these facts, this is the 19 process due to Rajnish. Cf. Sahota v. Allen, No. 20-CV-03180-WHO, 2020 WL 2992872 , at *6 20 (N.D. Cal. June 4, 2020) (“Balancing the Matthews v. Eldridge factors—and considering that 21 Sahota’s last bond hearing was over a year and a half ago, that Sahota has significant evidence of 22 changed circumstances regarding his potential danger, and given his probable chances of success 23 at the Board on remand (considering that he prevailed on his CAT petition at the IJ level)—I 24 conclude that Sahota is entitled as a matter of procedural due process to another bond hearing with 25 the required procedural protections.”). 26 CONCLUSION 27 For the reasons described above, Rajnish’s initial bond determination was unconstitutional. 1 His petition is GRANTED. 2 The government is ORDERED to provide Rajnish with a bond hearing within 21 days of 3 || this Order. If it fails to hold a bond hearing within 21 days, it is ORDERED to release him. This 4 || bond hearing must adhere to the Due Process Clause. In particular, the burden must be on the 5 government to prove by clear and convincing evidence that Rajnish should be denied a bond 6 || because he is a flight risk or danger to the community. 7 Reasonable attorneys’ fees and costs ace AWARDED to Rajnish under the Equal Access to 8 Justice Act, 28 U.S.C.§ 2412. 9 IT IS SO ORDERED. 10 Dated: December 22, 2020 11 . g ° 5 illiam H. Orrick 13 United States District Judge [16] = 17 Z 18