PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 17-2814 __________ IGOR V. BORBOT, Appellant v. WARDEN HUDSON COUNTY CORRECTIONAL FACILITY __________ On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2:17-cv-04646) District Judge: Honorable Jose L. Linares ___________ Argued March 21, 2018 Before: SMITH, Chief Judge, HARDIMAN, and ROTH, Circuit Judges. (Filed: October 16, 2018) Simone Bertollini [Argued] 609 North Franklin Avenue, Suite 2120 Nutley, NJ 07110 Paul F. O’Reilly 450 Seventh Avenue, Suite 1408 New York, NY 10123 Attorneys for Appellant Chad A. Reader William C. Peachey Kathleen A. Connolly Genevieve Kelly [Argued] United States Department of Justice Office of Immigration Litigation 450 5th Street, N.W. Washington, D.C. 20001 Attorneys for Appellee ____________ OPINION OF THE COURT ____________ HARDIMAN, Circuit Judge. Igor Borbot, a native and citizen of Russia, has been detained at the Hudson County Correctional Facility pending removal proceedings since April 2016. Fourteen months after he was denied release on bond, Borbot petitioned the United States District Court for the District of New Jersey for a writ of habeas corpus under 28 U.S.C. § 2241. Borbot alleged that the Due Process Clause of the Fifth Amendment entitled him to a new bond hearing at which the government would bear 2 the burden of justifying his continued detention. The District Court dismissed Borbot’s petition, and he filed this appeal. I Borbot entered the United States in September 2014 on a six-month tourist visa, which he overstayed. Nearly a year later, an Interpol Red Notice requested by Russia identified Borbot as a fugitive wanted for prosecution on criminal fraud charges. On April 22, 2016, Immigration and Customs Enforcement (ICE) detained Borbot under 8 U.S.C. § 1226(a) and initiated removal proceedings, which are still pending in immigration court in New York. Section 1226(a) provides that “[o]n a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.” 8 U.S.C. § 1226(a). The relevant implementing regulations state that a detainee under § 1226(a) may be released on bond by ICE or by an immigration judge (IJ) if the detainee “demonstrate[s] . . . that such release would not pose a danger to property or persons, and that [he] is likely to appear for any future proceeding.” 8 C.F.R. § 236.1(c)(8). If denied release at the initial bond hearing, a § 1226(a) detainee may request a custody redetermination hearing before an IJ. Id. § 236.1(d)(1). That request will “be considered only upon a showing that the alien’s circumstances have changed materially.” Id. § 1003.19(e). Both the initial bond determination and subsequent custody decisions can be appealed to the Board of Immigration Appeals (BIA). Id. § 236.1(d)(3). Shortly after his arrest, Borbot applied for release on bond. An IJ denied his application after a hearing, finding that 3 Borbot failed to meet his “burden in establishing [that] he does not pose a risk of ...
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