Marco A. C. v. Garland

Background

Marco A. C.-P. filed a petition under 28 U.S.C. § 2241, a law allowing a person to challenge certain forms of detention, seeking a bond hearing during immigration proceedings limited to deciding whether he could be removed to a country other than Mexico. His 2010 removal order had been reinstated, but an immigration judge had granted him protection from removal to Mexico under the Immigration and Nationality Act and the Convention Against Torture. The United States had appealed that decision to the Board of Immigration Appeals, and the appeal remained pending.

Marco A. C.-P. had been detained since September 2019. He argued that his detention had become unreasonably prolonged and that he was entitled to an individualized bond hearing. The magistrate judge recommended granting that request but denying his request for attorney’s fees because the request was not ready for decision and had not been properly submitted. The United States objected, arguing that removal remained significantly likely in the reasonably foreseeable future and asking the court to clarify who would bear the burden of proof at any bond hearing.

Court’s analysis

The court concluded that Marco A. C.-P.’s detention had lasted more than 590 days without a decision on the government’s appeal or a clear timetable for removal. Applying due-process principles concerning prolonged immigration detention, the court found that he had provided good reason to believe that removal was not significantly likely in the reasonably foreseeable future. The United States had not sufficiently rebutted that showing.

The court also decided who had to prove that detention should continue. It held that the United States must prove by clear and convincing evidence that continued detention is necessary to protect the community or prevent Marco A. C.-P. from fleeing. The court reasoned that prolonged physical detention implicates a strong liberty interest and that this level of proof provides appropriate protection against an erroneous loss of liberty.

Order

The court overruled the United States’ objections and adopted the magistrate judge’s report and recommendation. It granted in part and denied in part the amended petition. Specifically, it granted Marco A. C.-P.’s request for an individualized bond hearing and ordered an immigration judge to hold that hearing by May 19, 2021. At the hearing, the United States would bear the burden of proving by clear and convincing evidence that continued detention was necessary to protect the community or prevent flight. The court denied the request for attorney’s fees without prejudice.