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

(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,

(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,

(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 burden. That clarification,

though, is provided by our decision in Hernandez-Lara. In order

to continue detaining a noncitizen under section 1226(a), the

government must either (1) prove by clear and convincing evidence

that a noncitizen poses a danger to the community or (2) prove by

a preponderance of the evidence that a noncitizen poses a flight

risk.

.

That leaves one loose end. The district court also

ordered that the IJ must "consider alternative methods to ensure

the safety of the community and Doe's future appearances like GPS

monitoring." The government targets no argument at this

requirement. Doe likewise makes no argument concerning it. We

therefore consider any challenge to that part of the district

court's order in this particular case waived and offer no view

concerning it either way. See, e.g., United States v. Delgado-

Marrero,

, 200 n.33 (1st Cir. 2014).

The decision of the district court is affirmed with

instructions to enter judgment in favor of Doe in accordance with

this opinion.

- Dissenting Opinion Follows -

- 4 - LYNCH, Circuit Judge, dissenting. For the same reasons

as I gave in dissenting in Hernandez-Lara v. Lyons, I respectfully

dissent. No. 19-2019,

, at *19-31 (1st Cir. Aug.

19, 2021).

Until there is a disposition of a petition for rehearing

en banc, the mandate cannot issue in Hernandez-Lara, so I do not

consider that decision final. See Fed. R. App. P. 41(b) (mandate

issues seven days after expiration of time to file or denial of

motion for rehearing). And the government will probably file

petitions for rehearing en banc in both Hernandez-Lara and this

case. The cases meet all the criteria for en banc review. They

"conflict[] with a decision of the United States Supreme Court."

Fed. R. App. P. 35(b)(1)(A); see Hernandez-Lara

,

at *25-26, 28-29 (Lynch, J., dissenting). And they "involve[] one

or more questions of exceptional importance," Fed. R. App. P.

35(b)(1)(B), for at least three reasons. The decisions announce

an important and novel legal conclusion. See Narragansett Indian

Tribe v. Rhode Island,

(1st Cir. 2006) (en banc

review granted to "answer a challenging question of first

impression"); B. Garner, et al., The Law of Judicial Precedent 499

n.19 (2016) (collecting cases). The decisions "conflict[] with

those of our sister circuits on a question of national importance."

Hernandez-Lara,

, at *30 (Lynch, J., dissenting)

(citing Borbot v. Warden Hudson Cty. Corr. Facility,

- 5 - (3d Cir. 2018)); see Garner, supra, at 499 n.20 (collecting cases).

And the decisions involve a recurring issue that will affect

thousands of individual bond hearings. See Garner, supra, at 503

n.41 (collecting cases). Accordingly, not only is the government

likely to seek further review, further review is merited. See

also Hernandez-Lara,

, at *30 (Lynch, J.,

dissenting) (discussing certworthiness of decision).

Finally, I note that nothing about Doe's case entitles

him to any greater relief than my dissent in Hernandez-Lara would

have afforded him under the Administrative Procedure Act. There

is no exception to the well-settled rule of constitutional

avoidance that a court may not reach constitutional issues in order

to provide a broader remedy when a narrower statutory remedy

provides a plaintiff with relief. Jean v. Nelson,

,

854–55 (1985); see Ashwander v. TVA,

, 346–47 (1936)

(Brandeis, J., concurring).

For these reasons, I respectfully dissent.

- 6 -