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Hernandez-Lara v. Immigration and Customs Enforcement

United States District Court, D. New Hampshire

July 25, 2019

Ana Ruth Hernandez-Lara
Immigration and Customs Enforcement, Acting Director



         Petitioner Ana Ruth Hernandez-Lara is a 33-year-old asylum seeker from El Salvador. According to Hernandez, in or about 2013, after receiving death threats from a gang, she fled El Salvador and came illegally into the United States. On September 20, 2018, United States Immigration and Customs Enforcement (ICE) took Hernandez into custody. At the time of her arrest, she was living in Portland Maine with her significant other. Hernandez has been in custody since that date.

         Seeking habeas relief under 28 U.S.C. § 2241, Hernandez requests release or, in the alternative, a new bond hearing where the burden is placed on the government to prove by clear and convincing evidence that she is either a danger to the public or a flight risk. The government moves to dismiss her habeas petition, arguing that it does not state a viable legal claim for relief because Hernandez received a bond hearing and suffered no due process violation. On July 23, 2019, the court held a hearing on both the merits of the petition and the motion to dismiss. For the reasons that follow, the court denies the motion to dismiss and grants Hernandez's petition to the extent it requests a new bond hearing.


         Hernandez files this writ of habeas corpus seeking relief pursuant to 28 U.S.C. § 2241, alleging that she is being held “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Hernandez is currently detained at the Strafford County House of Corrections, a facility within this court's jurisdiction, and she asserts her detention violates due process.

         Federal courts have habeas jurisdiction to review a constitutional challenge to the immigration bail system that is unrelated to a final order of removal. See Jennings v. Rodriguez, 138 S.Ct. 830, 841 (2018) (holding that challenges to the “extent of the Government's detention authority” are not precluded by 8 U.S.C. § 1226(e)); Zadvydas v. Davis, 533 U.S. 678, 688 (2001) (holding that jurisdiction-stripping provisions of 8 U.S.C. §§ 1252 & 1226 bar federal courts from hearing cases challenging government's discretionary decisions - but do not bar constitutional challenges to the procedures themselves); Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011) (holding that constitutional challenges to the immigration bail system are cognizable in federal court); Figueroa v. McDonald, F.Supp.3d___, ___, __ 2018 WL 2209217, at *2-3 (D. Mass. 2018) (holding that federal court has jurisdiction to hear constitutional challenge to immigration bail procedures-such as allocation of burden of proof-which is not a challenge to the immigration judge's discretionary decision); see also Saint Fort v. Ashcroft, 329 F.3d 191, 200 (1st Cir. 2003) (noting that the jurisdiction-limiting provision in § 1226(e) applies only to review of the government's discretionary judgment).

         Hernandez's petition challenges the constitutionality of the immigration bail system; she is not asking the court to review the discretionary judgment exercised by the immigration judge in her case. Thus, this court has jurisdiction over Hernandez's claims.

         The Bond Hearing

         The parties do not dispute the material facts. Approximately one month after being taken into custody, Hernandez had a bond hearing before an immigration iudge (“IJ”). See doc. no. 1-1. The IJ placed the burden of proof on her to prove by clear and convincing evidence that she was neither a danger nor a flight risk. Id. at 10. Hernandez put on evidence that she had neither a criminal record nor any history of arrests. She also put on evidence of her good moral character, and her ties to Portland Maine, the community in which she was living. The IJ ruled that Hernandez was a danger based on a Red Notice from Interpol, issued by El Salvador, that accused Hernandez-incorrectly, according to Hernandez-of being a gang member. Hernandez explained to the IJ that the Red Notice allegation was false, and that it was her brother who was a member of the gang. Even the IJ expressed concern about the Red Notice during the bond hearing:

I don't see that there is sufficient evidence explaining why these allegations are being brought against her. She claims that they're street gangs, but it looks like I don't know if that's because this is an inter-rival thing or she was an innocent member or somehow wrongly identified. I just don't have the evidence. What I do have is the Interpol Red Notice. As it is the Respondent's burden of proof to show by clear and convincing evidence she is not a danger, I find, based on this Red Notice, she has failed to meet that burden . . . .

Doc. no. 1-1 at 9-10. The IJ found Hernandez had not sufficiently refuted the Red Notice and that she was a danger. He ordered that Hernandez be detained pending the completion of her removal proceedings. Id.

         Hernandez has applied for asylum and for protections under the Convention Against Torture. The IJ denied both requests. Hernandez has appealed the IJ's decision and her appeal is currently pending before the Board of Immigration Appeals (BIA). On June 13, 2019, the First Circuit granted her request to stay her removal during the pendency of her petition for review of the decision of the BIA. See doc. no. 15. As of the date of this Order, Hernandez has been detained for over 10 months.

         The Legal Standard

         Hernandez was arrested pursuant to 8 U.S.C. § 1226(a), which allows for ICE agents to arrest and detain an alien “pending a decision on whether the alien is to be removed from the United States.” Because Hernandez is not a criminal alien, the government has the discretion to release her on bond. See 8 U.S.C. § 1226(a)(2). After ICE makes the initial decision to detain an alien, the alien has the right to request a bond hearing to seek release pending final removal proceedings. 8 C.F.R. § ...

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