United States Court of Appeals For the First Circuit No. 19-2019 ANA RUTH HERNANDEZ-LARA, Petitioner, Appellee, v. TODD M. LYONS, Immigration and Customs Enforcement, Enforcement and Removal Operations, Acting Field Office Director, Respondent, Appellant, CHRISTOPHER BRACKETT, Superintendent, Strafford County Department of Corrections, Respondent. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Landya B. McCafferty, U.S. District Judge] Before Lynch, Lipez, and Kayatta, Circuit Judges. Catherine M. Reno, Trial Attorney, with whom Ethan P. Davis, Acting Assistant Attorney General, Civil Division, Scott G. Stewart, Deputy Assistant Attorney General, William C. Peachey, Director, Office of Immigration Litigation, District Court Section, Carlton F. Sheffield, Senior Litigation Counsel, and Ari Nazarov, Trial Attorney, were on brief, for appellant. Bryanna K. Devonshire, with whom Courtney H.G. Herz, Sheehan Phinney Bass & Green, PA, Gilles Bissonnette, Henry Klementowicz, SangYeob Kim, and American Civil Liberties Union of New Hampshire, were on brief, for appellee. August 19, 2021 KAYATTA, Circuit Judge. Ana Ruth Hernandez-Lara ("Hernandez"), a thirty-four-year-old native and citizen of El Salvador, entered the United States in 2013 without being admitted or paroled. An immigration officer arrested Hernandez in September 2018, and the government detained her at the Strafford County Department of Corrections in Dover, New Hampshire ("Strafford County Jail") pending a determination of her removability. Approximately one month later, Hernandez was denied bond at a hearing before an immigration judge (IJ) in which the burden was placed on Hernandez to prove that she was neither a danger to the community nor a flight risk. Hernandez subsequently filed a petition for a writ of habeas corpus in the United States District Court for the District of New Hampshire, contending that the Due Process clause of the Fifth Amendment entitled her to a bond hearing at which the government, not Hernandez, must bear the burden of proving danger or flight risk by clear and convincing evidence. The district court agreed and ordered the IJ to conduct a second bond hearing at which the government bore the burden of proving by clear and convincing evidence that Hernandez was either a danger or a flight risk. That shift in the burden proved pivotal, as the IJ released Hernandez on bond following her second hearing, after ten months of detention. The government now asks us to reverse the judgment - 3 - of the district court, arguing that the procedures employed at Hernandez's original bond hearing comported with due process and, consequently, that the district court's order shifting the burden of proof was error. Although we agree that the government need not prove a detainee's flight risk by clear and convincing evidence, we otherwise affirm the order of the district court. Our reasoning follows. I. The parties do not dispute the relevant background facts. Hernandez was born in Usulutan, El Salvador, in 1986. Before coming to the United States in 2013, her life was marred by abusive domestic relations and gang violence. Hernandez's stepfather raped her when she was twelve years old and beat her …
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