Lopez Cano v. Decker

Background

Michael Steven Lopez Cano filed a petition asking the court to order his release or require a new bond hearing. He challenged an Immigration Judge's decision placing on him the burden of proving that he was not a flight risk or danger to the community. He also brought a claim under Section 504 of the Rehabilitation Act, alleging that the respondents failed to provide reasonable accommodation for his disability.

Lopez Cano had been detained by Immigration and Customs Enforcement under 8 U.S.C. § 1226(a). At his August 15, 2022 bond hearing, the Immigration Judge required him to prove that he was not dangerous or likely to flee and denied bond after finding that he had not met that burden. The opinion states that Lopez Cano had been charged in New York with several criminal offenses, that his criminal case was pending, and that he had been diagnosed with post-traumatic stress disorder and major depressive disorder after attempting suicide while detained in a New York City jail.

Due Process Ruling

The court applied the balancing test from Mathews v. Eldridge, which considers the private interest affected, the risk that the procedures will wrongly deprive someone of that interest, and the Government's interests and administrative burdens. Relying on its earlier decision in a related proceeding and other decisions, the court held that at a bond hearing under Section 1226(a), the Government must prove by clear and convincing evidence that a noncitizen presents a flight risk or danger to the community.

The court rejected the Government's arguments that a different result was warranted because Lopez Cano had been detained for a shorter period, faced pending state criminal charges, or had a less significant liberty interest because pandemic conditions had changed. The court stated that the right to a procedurally proper bond hearing does not depend on the length of detention and that pending criminal charges do not change the burden of proof. It also stated that the Immigration Judge must meaningfully consider Lopez Cano's ability to pay and alternatives to detention, such as parole supervision or electronic monitoring.

The court concluded that Lopez Cano's detention had been illegal because the Government should have carried the burden at the initial bond hearing. It remanded the matter to the Immigration Judge for an individualized bond hearing to occur within seven days of any re-detention by Immigration and Customs Enforcement. At that hearing, the Government must prove by clear and convincing evidence that continued detention is justified.

Rehabilitation Act Claim

Section 504 of the Rehabilitation Act prohibits covered programs and activities from excluding, denying benefits to, or discriminating against otherwise qualified people with disabilities. The court stated that the parties did not dispute that Lopez Cano was a qualified individual with a disability or that the Department of Homeland Security and Immigration and Customs Enforcement were covered executive agencies.

The court nevertheless found that the petition did not allege facts sufficient to support an inference that those agencies discriminated against Lopez Cano because of his disability. It therefore declined to award relief under the Rehabilitation Act.

Disposition

The court's conclusion states that the habeas petition was granted. Upon any re-detention by Immigration and Customs Enforcement, Lopez Cano must be released unless, within seven days, the Government proves to an Immigration Judge by clear and convincing evidence that he poses a flight risk or danger to the community. The Clerk of Court was directed to close the case.