United States District Court, M.D. Pennsylvania
William W. Caldwell United States District Judge.
to the December 23, 2016 memorandum opinion and order (Docs.
45, 46), this court held an individualized bond hearing for
Rafael Ignacio Guerrero Sanchez (“Petitioner”) on
February 9, 2017. The extensive procedural history of
Petitioner's case was fully set forth in the December 23,
2016 opinion, (see Doc. 45 at 1-6), and will not be
repeated here. Petitioner is currently being detained by
Immigration and Customs Enforcement (“ICE”) while
his withholding of removal claim progresses through the
administrative system. He has been detained since May 19,
2015. (Id. at 3). For the following reasons, the
court will release Petitioner on conditions.
Standard of Review
Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir.
2011), the Third Circuit explained that the purpose of
continued detention under 8 U.S.C. § 1226 must be to
facilitate the detention statute's goals of
“ensuring that an alien attends removal proceedings and
that his release will not pose a danger to the
community.” Id. at 231. The government must
justify its continued detention of the detainee. Id.
at 232. Accordingly, the government bears the burden of
proving “that continued detention is necessary to
fulfill the purposes of the detention statute.”
Id. at 233.
section 1226 detainee is due a bond hearing, that hearing
must be “individualized.” Chavez-Alvarez v.
Warden York Cty. Prison, 783 F.3d 469, 478 (3d Cir.
2015); Leslie v. U.S. Attorney Gen., 678 F.3d 265,
271 (3d Cir. 2012); Diop, 656 F.3d at 233.
Mechanistic reliance on factors that are common to all
section 1226 detainees will not suffice. See Singh v.
Holder, 638 F.3d 1196, 1205-06 (9th Cir. 2011)
(explaining that all alien detainees in section 1226 bond
hearings presumably have at least one crime in their past
giving rise to their removal orders, and have been ordered
removed by a final, administrative order, and thus the
presence of these factors alone does not necessarily warrant
denial of bail); Chi Thon Ngo v. I.N.S., 192 F.3d
390, 398-99 (3d Cir. 1999).
the assessment of a section 1226 detainee's dangerousness
and risk of flight must be made on a current basis. In
Chi Thon Ngo v. I.N.S., 192 F.3d 390 (3d Cir. 1999),
the Third Circuit emphasized the importance of making a
present assessment of a detainee's level of risk in light
of the fundamental liberty interest at stake:
When detention is prolonged, special care must be exercised
so that the confinement does not continue beyond the time
when the original justifications for custody are no longer
tenable. The fact that some aliens posed a risk of flight in
the past does not mean that they will forever fall into that
category. Similarly, presenting danger to the community at
one point by committing crime does not place them forever
beyond redemption. Measures must be taken to assess the risk
of flight and danger to the community on a current
basis. The stakes are high and we emphasize that
grudging and perfunctory review is not enough to satisfy the
due process right to liberty, even for aliens.
Id. at 398 (emphasis added). It follows that submissions
by the detainee showing, inter alia,
reform, rehabilitation, good character, education, employment
history and prospects, familial ties to United States
citizens, potential for relief from removal, and any other
evidence that contravenes danger to the community or risk of
flight must be considered, as such evidence is highly
relevant to ascertaining the detainee's current risk
level. See, eg., id. at 393
(explaining types of evidence detainee submitted in support
of petition for bond); see also In re Guerra, 24 I.
& N. Dec. 37, 40 (B.I.A. 2006) (listing factors to be
considered in detainee bond determinations).
assessing danger to the community, the extensiveness,
recency, and severity of a detainee's past criminal
activity must be considered. Singh, 638 F.3d at 1206
(citing Guerra, 24 I. & N. Dec. at 40). When
assessing risk of flight, common-sense considerations include
whether the imposition of conditions of release could
mitigate flight risk, and whether the detainee has strong
family ties to the United States. Leslie, 865
F.Supp.2d at 640; Chi Thon Ngo, 192 F.3d at 398.
although the Third Circuit has not yet addressed the issue,
this court has found that the appropriate level of proof
required from the government in these bond determinations is
clear and convincing evidence of risk of flight or danger to
the community. See Guerrero Sanchez v. Sabol, No.
1:15-CV-2423, 2016 WL 7426129, at *5-6 (M.D. Pa. Dec. 23,
2016) (Caldwell, J.) (citing Lora v. Shanahan, 804
F.3d 601, 616 (2nd Cir. 2015), and Singh, 638 F.3d
at 1203 (9th Cir. 2011)). As the Court of Appeals for the
Ninth Circuit aptly explained,
[E]ven where prolonged detention is permissible, due process
requires adequate procedural protections to ensure that the
government's asserted justification for physical
confinement outweighs the individual's constitutionally
protected interest in avoiding physical restraint. Because it
is improper to ask the individual to share equally with
society the risk of error when the possible injury to the
individual-deprivation of liberty-is so significant, a clear
and convincing evidence standard of proof provides the
appropriate level of procedural protection. The Supreme Court
has repeatedly reaffirmed the principle that due process
places a heightened burden of proof on the State in civil
proceedings in which the individual interests at stake . . .
are both particularly important and more substantial than the
mere loss of money. For [section 1226] detainees like Singh,
who face years of detention before resolution of their
removability, the individual interest at stake is without
doubt particularly important and more substantial than mere
loss of money, and therefore a heightened standard of proof
Singh, 638 F.3d at 1203-04 (internal quotation marks
and citations omitted). The Singh court further
reasoned that because a heightened standard of proof is
applied in many other immigration contexts, including those
where the immigrant bears the burden of proof, it makes sense
that the “clear and convincing evidence” standard
should also apply to the government in section 1226 bond
hearings. Id. at 1205 n.4. This court has found the
reasoning of Singh court persuasive, and concurs
that the appropriate standard of proof is clear and
convincing evidence. Guerrero Sanchez, 2016 WL
7426129, at *6.