Cruz Fajardo v. Decker

Background

Tomas Cruz Fajardo, a Honduran citizen, was detained by Immigration and Customs Enforcement at the Orange County Jail on September 8, 2021. The Government charged him with being present in the United States without being admitted or paroled. An immigration judge denied his request for a change in custody status, citing his driving-related arrests and convictions, including driving-under-the-influence offenses. The Board of Immigration Appeals later dismissed his appeal of that custody decision.

Fajardo also applied for cancellation of removal. An immigration judge denied that application, finding that he had not shown the required good moral character and had not shown that he deserved cancellation as a matter of discretion. The Board dismissed his appeal. Fajardo then filed a petition for review in the Second Circuit and asked that court to stay his removal. Those matters remained pending when he brought this federal habeas case. The opinion states that the Government had a policy of refraining from removing noncitizens with pending petitions for review in the Second Circuit.

Fajardo’s Requests and the Government’s Position

Fajardo asked the court to order his immediate release or, alternatively, an individualized bond hearing before an impartial adjudicator. He argued that the Government should have to prove by clear and convincing evidence that his continued detention was justified, and that the adjudicator should consider alternatives to detention and his ability to pay bond. He also asked the court to prevent the respondents from moving him from the New York City area while the case was pending.

The Government argued that Fajardo’s detention was governed by 8 U.S.C. § 1231(a), which applies to certain people ordered removed, rather than § 1226(a), which governs detention while a decision on removal is pending. It also argued that, if § 1226(a) applied, Fajardo should bear the burden of proof at a bond hearing.

Which Detention Law Applied

The court held that § 1226(a) governed Fajardo’s detention. It relied on Second Circuit precedent stating that § 1226 applies when a noncitizen is not immediately removable because judicial review remains pending. The court found that the Government’s forbearance policy functioned like a stay of removal, even though the Second Circuit had not formally granted Fajardo’s request for a stay.

The court distinguished Supreme Court precedent involving people whose earlier removal orders had been reinstated after they had already been removed and then reentered the United States. In Fajardo’s case, the petition for review concerned the removal order itself, so the question of whether he would be removed remained unresolved.

Bond Hearing Required by Due Process

The court applied the Second Circuit’s decision in Velasco Lopez v. Decker. It held that Fajardo’s detention for more than 15 months without a hearing at which the Government had to justify his detention violated due process. The court concluded that Fajardo was entitled to an individualized bond hearing at which the Government must prove by clear and convincing evidence that he presents a danger to the community or a flight risk.

The court also ordered that the immigration judge consider alternatives to immigration detention and Fajardo’s ability to pay bond. The court explained that possible alternatives can be relevant to whether a person presents a danger or flight risk and do not improperly restrict the immigration judge’s discretion.

The court did not decide Fajardo’s separate arguments based on statutory interpretation or the Administrative Procedure Act because it granted relief on due-process grounds. It also did not establish a general rule for when due process requires shifting the burden to the Government; it decided only that Fajardo’s prolonged detention and the circumstances described in the opinion required that result.

Disposition

The court granted Fajardo’s petition to the extent it sought a prompt bond hearing. Respondents were ordered, within 10 days, to take Fajardo before an immigration judge for an individualized hearing. If they failed to provide the hearing within that period, they were ordered to release him. The court denied Fajardo’s alternative request for immediate release because his due-process right was to a prompt hearing, not automatic release. It denied as moot his request to prevent relocation because the imminent hearing would give him the right to attend it. The clerk was directed to terminate the pending motion and close the case.