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 - 3 - 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 …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals