United States Court of Appeals
For the First Circuit
No. 19-1368
JOHN DOE,
Petitioner, Appellee,
v.
STEVEN W. TOMPKINS, Suffolk County Sheriff; YOLANDA SMITH,
Superintendent of Suffolk County Correctional Facility; TODD M.
LYONS, Immigration and Customs Enforcement, Enforcement and
Removal Operations, Acting Field Office Director,
Respondents, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lynch, Lipez, and Kayatta,
Circuit Judges.
Huy M. Le, Trial Attorney, with whom Joseph H. Hunt, Assistant
Attorney General, Civil Division, William C. Peachey, Director,
Office of Immigration Litigation, Colin A. Kisor, Deputy Director,
Elianis N. Perez, Assistant Director, Lauren Fascett, Senior
Litigation Counsel, and C. Frederick Sheffield, Senior Litigation
Counsel, were on brief, for appellants.
Mary P. Holper, with whom Boston College Legal Services LAB
Immigration Clinic was on brief, for appellee.
Jerome P. Mayer-Cantú on brief for 34 Retired Immigration
Judges and Former Members of the Board of Immigration Appeals,
amici curiae.
Ragini N. Shah, Suffolk University Law School Immigration
Clinic, Sarah Sherman-Stokes, and Boston University School of Law
Immigrants' Rights and Human Trafficking Program, on brief for
American Immigration Lawyers' Association, New England Chapter,
Suffolk University Law School, and Boston University School of
Law, amici curiae.
August 26, 2021
KAYATTA, Circuit Judge. Petitioner John Doe, a native
and citizen of El Salvador, was detained by the government under
8 U.S.C. § 1226(a), which provides for the discretionary detention
of noncitizens pending removal proceedings. Doe was denied bond
at a hearing before an immigration judge (IJ) who, consistent with
immigration regulations, placed the burden on Doe to prove he was
neither a danger to the community nor a flight risk. See Matter
of Guerra,
24 I. & N. Dec. 37, 40 (B.I.A. 2006). Doe subsequently
filed a petition for a writ of habeas corpus in the United States
District Court for the District of Massachusetts. He argued, among
other things, that the Due Process Clause of the Fifth Amendment
requires the government, not him, to bear the burden of proof at
his bond hearing. The district court agreed. It also found that
that misallocation of the burden of proof was prejudicial. The
district court therefore ordered the IJ to conduct a new bond
hearing at which the government would bear the burden of proof.
This appeal followed. The government does not challenge
the district court's finding that the allocation of the burden of
proof, if improper, caused Doe prejudice. Rather, the government
rests its appeal on its contention that the IJ properly allocated
the burden of proof.
For the reasons stated in Hernandez-Lara v. Lyons,
No. 19-2019, 2021 WL 3674032 (1st Cir. Aug. 19, 2021), we agree
with the district court's conclusion that Doe is entitled to a new
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hearing before an IJ at which the government will bear the burden
of proving either dangerousness or flight risk in order to continue
detaining Doe. Normally, we would consider a remand to clarify
more precisely the extent of that burden. That clarification,
though, is provided by our decision in Hernandez-Lara. In order
to continue detaining a noncitizen under section 1226(a), the
government must either (1) prove by clear and convincing evidence
that a noncitizen poses a danger to the community or (2) prove by
a preponderance of the evidence that a noncitizen poses a flight
risk. Id. at *16.
That leaves one loose end. The district court also
ordered that the IJ must "consider alternative methods to ensure
the safety of the community and Doe's future appearances like GPS
monitoring." The government targets no argument at this
requirement. Doe likewise makes no argument concerning it. We
therefore consider any challenge to that part of the district
court's order in this particular case waived and offer no view
concerning it either way. See, e.g., United States v. Delgado-
Marrero, 744 F.3d 167, 200 n.33 (1st Cir. 2014).
The decision of the district court is affirmed with
instructions to enter judgment in favor of Doe in accordance with
this opinion.
- Dissenting Opinion Follows -
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LYNCH, Circuit Judge, dissenting. For the same reasons
as I gave in dissenting in Hernandez-Lara v. Lyons, I respectfully
dissent. No. 19-2019, 2021 WL 3674032, at *19-31 (1st Cir. Aug.
19, 2021).
Until there is a disposition of a petition for rehearing
en banc, the mandate cannot issue in Hernandez-Lara, so I do not
consider that decision final. See Fed. R. App. P. 41(b) (mandate
issues seven days after expiration of time to file or denial of
motion for rehearing). And the government will probably file
petitions for rehearing en banc in both Hernandez-Lara and this
case. The cases meet all the criteria for en banc review. They
"conflict[] with a decision of the United States Supreme Court."
Fed. R. App. P. 35(b)(1)(A); see Hernandez-Lara 2021 WL 3674032,
at *25-26, 28-29 (Lynch, J., dissenting). And they "involve[] one
or more questions of exceptional importance," Fed. R. App. P.
35(b)(1)(B), for at least three reasons. The decisions announce
an important and novel legal conclusion. See Narragansett Indian
Tribe v. Rhode Island,
449 F.3d 16, 18 (1st Cir. 2006) (en banc
review granted to "answer a challenging question of first
impression"); B. Garner, et al., The Law of Judicial Precedent 499
n.19 (2016) (collecting cases). The decisions "conflict[] with
those of our sister circuits on a question of national importance."
Hernandez-Lara,
2021 WL 3674032, at *30 (Lynch, J., dissenting)
(citing Borbot v. Warden Hudson Cty. Corr. Facility,
906 F.3d 274
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(3d Cir. 2018)); see Garner, supra, at 499 n.20 (collecting cases).
And the decisions involve a recurring issue that will affect
thousands of individual bond hearings. See Garner, supra, at 503
n.41 (collecting cases). Accordingly, not only is the government
likely to seek further review, further review is merited. See
also Hernandez-Lara, 2021 WL 3674032, at *30 (Lynch, J.,
dissenting) (discussing certworthiness of decision).
Finally, I note that nothing about Doe's case entitles
him to any greater relief than my dissent in Hernandez-Lara would
have afforded him under the Administrative Procedure Act. There
is no exception to the well-settled rule of constitutional
avoidance that a court may not reach constitutional issues in order
to provide a broader remedy when a narrower statutory remedy
provides a plaintiff with relief. Jean v. Nelson, 472 U.S. 846,
854–55 (1985); see Ashwander v. TVA,
297 U.S. 288, 346–47 (1936)
(Brandeis, J., concurring).
For these reasons, I respectfully dissent.
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