Hernandez-Aviles v. Decker

Background

Noe Hernandez-Aviles had entered the United States nineteen years earlier and had received work authorization through the Deferred Action for Childhood Arrivals program, although that status later lapsed. He was arrested in New York in 2017 for driving while intoxicated and criminal possession of a controlled substance, and he was arrested again that year for driving while intoxicated. He participated in substance-abuse treatment programs and was later sentenced to one year in jail for the 2017 charges.

After Hernandez completed his jail term in July 2020, Immigration and Customs Enforcement detained him and placed him in removal proceedings. At an August 28, 2020, bond hearing under 8 U.S.C. § 1226(a), the immigration judge placed the burden of proof on Hernandez. The judge found that Hernandez was not a flight risk but found that he posed a danger to the community based on his arrests, criminal activity, and drug- and alcohol-abuse issues. The judge therefore denied bond.

Burden of Proof

The court relied on its earlier decision holding that the Due Process Clause of the Fifth Amendment requires the government to prove that detention is justified at a bond hearing by clear and convincing evidence. The parties agreed that this earlier decision controlled if the court continued to follow it, and Judge Ramos did so.

The court held that placing the burden on Hernandez violated his right to due process. It ordered the respondents to provide a second bond hearing within seven days, at which the government would have to prove by clear and convincing evidence that Hernandez’s continued detention was warranted.

The court did not reach Hernandez’s alternative arguments that the hearing violated 8 U.S.C. § 1226(a) or the Administrative Procedure Act.

Alternatives to Detention and Ability to Pay

The court also addressed what the immigration judge must consider at the new hearing. It held that procedural due process requires consideration of alternatives to detention and Hernandez’s ability to pay a monetary bond when deciding both whether he is a flight risk and whether he poses a danger to the community.

The court rejected the government’s argument that a finding of dangerousness automatically ended the analysis. It explained that deciding whether detention is allowed is different from deciding what procedures are required to determine whether detention is necessary. The court also rejected the argument that requiring these considerations improperly demanded the least burdensome detention method. Instead, the court said the government must show by clear and convincing evidence that detention is justified; a viable alternative could prevent the government from meeting that burden.

Disposition

Judge Ramos granted Hernandez’s petition. The government had to provide a bond hearing before an immigration judge within seven days of the opinion and order. At that hearing, the government had to establish by clear and convincing evidence that Hernandez posed a danger to the community or was a flight risk, and the immigration judge had to consider alternative release conditions and Hernandez’s ability to pay as to both issues. If the government failed to provide the hearing within seven days, it had to release Hernandez.