Subject: Victory in M.D. Ga. – gov’t bears burden of justifying detention in 236(a) bond proceedings by clear & convincing evidence

 

Dear colleagues,

 

I’m pleased to share the attached opinion authored by Judge Hugh Lawson of the U.S. District Court for the Middle District of Georgia finding that the Due Process Clause requires the government in 236(a) bond proceedings to bear the burden of proving by clear and convincing evidence that the noncitizen’s detention is justified. The decision follows in the footsteps of cases like Velasco Lopez v. Decker, No. 19-2284-cv, 2020 WL 6278204 (2d Cir. Oct. 27, 2020), Dubon Miranda v. Barr, 463 F. Supp. 3d 632 (D. Md. 2020), and Pensamiento v. McDonald, 315 F. Supp. 3d 684 (D. Mass. 2018).

 

The bulk of the opinion is devoted to applying the Mathews v. Eldridge balancing test. Notably, the court rejects the argument advanced by the government here and in other cases like Velasco Lopez that the Supreme Court’s civil detention cases have no purchase in the immigration context. Citing Zadvydas and Justice Souter’s concurring and dissenting opinion in Demore, the court finds that the government’s position “belies the fact that the Supreme Court regularly relies upon civil confinement cases to inform its due process analysis in immigration cases.” “[I]mmigration detention,” the court explains, “is an extraordinary liberty deprivation that must be carefully limited.”

 

Other items of note:

• We argued, cribbing liberally from Mary Holper’s exceptional law review article, The Beast of Burden in Immigration Bond Hearings, 67 Case W. Res. L. Rev. 75 (2016), that the BIA’s decision in Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999) was arbitrary and capricious under the APA. The court does not reach that issue but does recognize that the regulation the BIA relied on in Adeniji to allocate the burden on the noncitizen “does not apply to IJs determining release at bond hearings.”
• The court acknowledges that under 236(a) the “IJ may … set conditions of release such as subjecting the noncitizen to electronic monitoring.”
• For those practicing in the Eleventh Circuit where the government continues to cite Sopo v. U.S. Att’y Gen., 825 F. 3d 1199 (11th Cir. 2016) when it suits the government’s interests, the judge recognized that that case confers no precedential value in light of its vacatur.

 

Best regards,

Patrick

 

Patrick Taurel
CLARK HILL PLC

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Congrats, Patrick!

The case is Gao v. Paulk:  Here’s a copy of Judge Lawson’s decision:

Gao v. Paulk et al, 20-cv-93-HL-MSH, ECF No. 38, Order Rejecting Report and Recommendation

Here’s my favorite quote:

Petitioner has already experienced a severe liberty deprivation. Two years of immigration detention imitates the Government’s punishment of individuals convicted of serious offenses. See 18 U.S.C. § 3156(a)(2) (“‘[F]elony’ means an offense punishable by a maximum term of imprisonment of more than one year….”); 18 U.S.C. § 924(e)(2)(B) (“‘[V]iolent felony’ means any crime punishable by imprisonment for a term exceeding one year . . . .”); 18 U.S.C. §3559(a). Petitioner now faces a third year of incarceration—though the Government has “no . . . punitive interest” in civil confinement, and he “may not be punished.” Foucha, 504 U.S. at 80. 

Reality check:

I did lots of non-detained cases involving natives of the PRC in 13 years on the Arlington bench. Perhaps a couple failed to show for their asylum merits hearings, but if so, I don’t remember it. The PRC is always among the “league leaders” in EOIR asylum grants and applicants from there have little reason not to show up for their hearings. That’s particularly true of someone represented by Patrick Taurel and Clark Hill!

So, this detention has little, if anything, to do with insuring appearance at immigration hearings. And, by the Government’s own admission, it has nothing whatsoever to do with protecting the public from danger. 

So, what’s it all about? It’s illegal punishment for applying for asylum and asserting rights, intended to “deter” other individuals from doing so, and to enrich those profiting from gross and abusive over-detention of foreign nationals, as well as throwing “red meat” to the political right wing. 

And, perhaps nowhere is the abuse of our system worse than in the Georgia Immigration Courts which have correctly been characterized as an “Asylum Free Zone” where unconstitutional, unlawful, and biased judging and demeaning of asylum applicants and their representatives has been allowed to flourish and “turned into an art.” 

Will the Biden-Harris Administration end these perversions of justice occurring in broad daylight? It’s not rocket science:

• Adopt the proper constitutional rule for bond cases set forth by the court in this and other cases;
• Remove the current BIA and replace them with real appellate judges: experts in asylum, human rights, and due process, who will insure equal justice and fundamental fairness for every single individual stuck in the now out of control, dysfunctional, and intentionally unfair EOIR system;
• Have a real BIA crack down on the “judicial outliers” in Georgia and require them to follow the proper Cardoza/Mogharrabi generous asylum standards, stop illegal and wasteful detention, treat everyone with respect and human dignity, and follow best (not worst) practices, or find other jobs more suited to their anti-immigrant philosophies.

Or, will the incoming Administration follow in the footsteps of the Obama Administration by ignoring or papering over the problems causing deep dysfunction and mockery of the rule of law, due process, and best practices at EOIR.

There are only two ways of approaching the EOIR mess: solve it by bringing in the NDPA, or become a part of it. The choice is easy. 

But, sadly, not so easy that past Democratic Administrations have figured it out! And rumors that some of the same folks whose poor, ineffectual, wrong-headed approach to both immigration policy and administration of the immigration bureaucracy, as well as gross lack of appreciation for the Immigration Courts and their proper role, helped empower Stephen Miller & company to wreak havoc on our democracy and humanity are being seriously considered for high level posts in the incoming Administration are discouraging to say the least. 

Leaving the true “defenders of the faith” out in the cold once again, while rewarding those who weren’t fighting on the front lines to save democracy, and “didn’t get it” the last time the Democrats had power, could be the death knell for both the Democratic Party and our nation. 

Sad, but true. And you heard it first on Courtside!

Due Process Forever!

PWS

11-17-20