Opinion
22 Civ. 1301 (AT) (GWG)
2022-04-19
Luis Klever Huanga HUANGA, Petitioner, v. Thomas DECKER, Director, New York Field Office, U.S. Immigration & Customs Enforcement, et al., Respondents.
Edgar Loy Fankbonner, Goldberger & Dubin PC, New York, NY, for Petitioner. Rebecca Ruth Friedman, DOJ-USAO, New York, NY, for Respondents.
Edgar Loy Fankbonner, Goldberger & Dubin PC, New York, NY, for Petitioner.
Rebecca Ruth Friedman, DOJ-USAO, New York, NY, for Respondents.
REPORT AND RECOMMENDATION
GABRIEL W. GORENSTEIN, United States Magistrate Judge
Petitioner Luis Klever Huanga Huanga brings this petition for a writ of habeas corpus under 28 U.S.C. § 2241 challenging his detention by United States Immigration and Customs Enforcement ("ICE"), a division of the United States Department of Homeland Security ("DHS"). For the reasons set forth below, the petition for a writ of habeas corpus should be denied.
See Petition for Writ of Habeas Corpus, filed Feb. 16, 2022 (Docket # 1) ("Pet."); Return to Habeas Petition, filed Feb. 22, 2022 (Docket # 16) ("Ret."); Declaration of Deportation Officer Naquan Bacchus, filed Feb. 22, 2022 (Docket # 17) ("Bacchus Decl."); Respondents’ Memorandum of Law in Opposition, filed Feb. 22, 2022 (Docket # 18) ("Opp."); Reply Memorandum in Support of Petition for Writ of Habeas Corpus, filed Mar. 11, 2022 (Docket # 25) ("Pet. Reply").
I. BACKGROUND
A. Facts
Huanga is a citizen of Ecuador who unlawfully entered the United States at a time and place unknown to the Government. See Bacchus Decl. ¶¶ 3-4. Huanga represents that he entered the United States without inspection in 2008. See Pet. ¶ 1. In October 2011, Huanga was arrested in Rockland County, New York and charged with various offenses relating to the operation of a motor vehicle without a license and while under the influence of alcohol. See Bacchus Decl. ¶ 5. On March 20, 2012, Huanga pled guilty to a first violation of Driving While Intoxicated, New York Vehicle and Traffic Law ("NYVTL") § 1192(03). See id. ¶ 6; Certificates of Disposition, annexed to Ret. as Ex. 2, at *1.
On July 3, 2017, Huanga was again arrested in Rockland County and charged with operating a motor vehicle without a license in violation of NYVTL § 509(01) and other traffic offenses. See Bacchus Decl. ¶ 7; Certificates of Disposition, at *3. Huanga was convicted of operating a motor vehicle without a license and failure to obey a traffic control device. See Bacchus Decl. ¶ 8; Certificates of Disposition, at *3. On May 5, 2019, Huanga was arrested a third time in Rockland County and charged with operating a motor vehicle without a license, driving while under the influence of alcohol, and other traffic offenses. See Bacchus Decl. ¶ 9. On November 25, 2019, Huanga was convicted by his plea of guilty to a second violation of driving while intoxicated in violation of NYVTL § 1192(03), a felony. Id. ¶ 10. He was sentenced to five years of probation. See Pet. ¶ 3.
Two years into that probation, in 2021, Huanga was arrested after the New York State probation office notified DHS that he had been charged with violating his probation after testing positive for marijuana. See id. On September 30, 2021, outside Rockland County Jail, Huanga was arrested by ICE pursuant to a warrant. See Bacchus Decl. ¶ 11; Notice to Appear, Warrant, and Notice of Custody Determination, annexed to Ret. as Ex. 3 ("Notice to Appear"), at *6. ICE also issued a notice to appear, a charging document used to commence removal proceedings. See Notice to Appear at *1. The notice to appear alleged that Huanga was subject to removal from the United States for entering the country without being admitted or paroled, pursuant to section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i). See id. Acting pursuant to the authority conferred on DHS by section 236 of the Immigration and Nationality Act, 8 U.S.C. § 1226(a), ICE detained Huanga during the pendency of his removal proceeding. Id. at *4. The Notice of Custody Determination informed Huanga that he could request a review of the custody determination by an immigration judge, which Huanga requested on the date of his arrest. See id.
B. Procedural History
On October 4, 2021, Huanga filed a motion before the Immigration Court requesting a custody redetermination hearing. See Emergent Motion for a Bond Hearing, dated Oct. 4, 2021, annexed to Ret. as Ex. 4. On October 5, 2021, the Immigration Judge ("IJ") held a bond hearing. See Bond Hearing Transcript, dated Oct. 5, 2021, annexed to Ret. as Ex. 7. The IJ examined the evidence submitted by both Huanga and DHS and heard arguments from both parties. Id. at 3-8. The IJ then denied Huanga's request for a change in custody status, explaining that Huanga had failed to establish that he was not a danger to the community. Id. at 9. The IJ relied on the fact that Huanga had two prior convictions relating to operating a vehicle with a blood alcohol level that indicated intoxication. Id. The IJ also noted that Huanga had not testified to provide context to his criminal offenses, and had not offered evidence tending to show that, notwithstanding his convictions, he was not a danger to the community:
However, there are certain issues here. Number one, there are no criminal documents such as a police affidavit or police report that would provide any information about the underlying circumstances and how serious the driving was, whether there were any injuries or whether potential [sic], there were any close calls, any damage to any property. There's none of that, no documents.
Furthermore, you were given the opportunity to have your client testify. However, you decided to rest on the record as the Government did. I have no information again on the underlying circumstances. There's no indication of rehabilitation, whether he has attended any programs. There's no indication whatsoever of whether or not this has been an ongoing problem. He's had two arrests. As the Attorney General has stated in the footnote in one case, studies have shown that a person with two arrests, that generally indicates that there may have been other incidents where the respondent was not caught by law enforcement, but we have no testimony on that as to whether or not this has been an ongoing problem. Again, it's the respondent's burden.
Id. at 9-10.
The IJ issued a written order containing his ruling. See Order Denying Bond, dated Oct. 5, 2021, annexed to Ret. as Ex. 5. Huanga never filed an appeal. See Bacchus Decl. ¶ 17.
On December 16, 2021, Huanga appeared for a hearing on his applications for relief from removal. See Bacchus Decl. ¶¶ 20, 22. The IJ denied Huanga's applications for cancellation of his removal and for voluntary departure, rendering his order of removal final. See id. ¶ 22; Order of Removal, dated Dec. 16, 2021, annexed to Ret. as Ex. 8. ICE performed a custody review and determined that Huanga should remain detained due to his final removal order and his criminal history. See Bacchus Decl. ¶ 23.
On January 19, 2022, Huanga, through new counsel, filed a motion with the IJ to reopen his removal proceedings, claiming ineffective assistance of counsel. Id. ¶ 24. Huanga also filed a motion to stay his removal. Id. On January 20, 2022, an IJ granted Huanga's motion to stay his removal, see id. ¶ 26, and on January 31, 2022, an IJ granted Huanga's motion to reopen his removal proceedings, see id. ¶ 30; Order of the Immigration Judge, dated Feb. 1, 2022, annexed to Ret. as Ex. 11.
On February 16, 2022, while Huanga's second application for relief from removal was still pending, Huanga filed the petition now before the Court. See Pet. Huanga also filed an emergency motion for an order to show cause, see Emergency Motion for Order to Show Cause, filed Feb. 16, 2022 (Docket # 3), and a proposed temporary restraining order, see Proposed Temporary Restraining Order, filed Feb. 17, 2022 (Docket # 13). Huanga sought a preliminary injunction barring his removal from this Court's jurisdiction and seeking release from custody absent a showing by DHS by clear and convincing evidence that Huanga is a flight risk and/or a danger to society. See id. at 1. On February 24, 2022, this Court granted Huanga's request that respondents be enjoined from removing him from this Court's jurisdiction, but denied Huanga's other requested relief. See Order of February 24, 2022 (Docket # 19).
II. LEGAL STANDARD
8 U.S.C. § 1226(a) provides that "an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States." Section 1226(a) gives the Attorney General the choice to "continue to detain the arrested alien," or "release the alien on (A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or (B) conditional parole." The Attorney General has delegated this authority to immigration judges. See 8 C.F.R. §§ 1003.19, 1236.1. As interpreted by the BIA, "[s]ection 1226 provides for the release on bond for all persons — except those subject to mandatory detention as criminals or terrorists, or those who are arriving aliens — unless there is a finding that the alien is either a threat to the public safety, a threat to national security, or is likely to abscond." Jimenez v. Decker, 2021 WL 826752, at *5 (S.D.N.Y. Mar. 3, 2021) (citing Matter of Patel, 15 I. & N. Dec. 666 (B.I.A. 1976) ).
Section 1226(a) is silent as to whether the Government or the alien bears the burden of proof. "Beginning in 1999, the BIA began placing the burden on the arrested individual to demonstrate, to the satisfaction of the arresting officer, that release would not pose a danger to property or persons and that the individual is likely to appear for any future proceedings to bond hearings conducted by immigration judges under § 1226(a)." Jimenez, 2021 WL 826752, at *5. The BIA's decision in Matter of Adeniji, 22 I. & N. Dec. 1102 (B.I.A. 1999), adopted the standard set forth in 8 C.F.R. § 236.1(c)(8), which allows "[a]ny officer authorized to issue a warrant of arrest" to release an alien pending removal proceedings, if that alien "demonstrate[s] to the satisfaction of the officer that such release would not pose a danger to property or persons, and that [he] is likely to appear for any future proceeding." The BIA has consistently upheld this standard and continues to require that, at an immigration bond hearing, the detainee bear the burden of proving "that he or she does not present a danger to persons or property, is not a threat to the national security, and does not pose a risk of flight." Matter of Siniauskas, 27 I. & N. Dec. 207, 207 (B.I.A. 2018).
" ‘An [IJ] has broad discretion in deciding the factors that he or she may consider in custody redeterminations,’ including evidence of crimes for which Petitioner was not convicted." Reyes v. King, 2021 WL 3727614 (S.D.N.Y. Aug. 20, 2021) (quoting In Re Guerra, 24 I. & N. Dec. 37, 40 (B.I.A. 2006) ); see also 8 C.F.R. § 1003.19(d) ("The determination of the [IJ] as to custody status or bond may be based upon any information that is available to the [IJ]"). An alien may appeal an unfavorable custody decision to the BIA. See 8 C.F.R. §§ 236.1(d)(3), 1236.1(d)(3).
III. DISCUSSION
Huanga's primary argument is that his due process rights were violated when the IJ placed the burden on him to show that he was not a risk of flight or danger to the community at his bond hearing. See Pet. ¶¶ 30-52. Huanga argues that this violation entitles him to a new bond hearing at which the Government should be required to prove by clear and convincing evidence that Huanga is a risk of flight or danger to the community in order to continue his detention. See id. ¶¶ 39-44, 53. As an alternative basis for relief, Huanga argues that placing the burden on a detainee at a hearing under 8 U.S.C. § 1226(a) is inconsistent with "the statutory context and legislative history of that provision," see id. ¶ 57, and that the BIA's decision providing for that burden framework violated the Administrative Procedures Act ("APA"), see id. ¶¶ 63-71. The Government opposes each of Huanga's arguments and further argues that Huanga's petition may be denied before reaching its merits because he failed to exhaust all available administrative remedies, such as appealing his denial of bond to the BIA, prior to filing his petition. See Opp. at 14-18.
Because we find that Huanga's petition fails on the merits, we do not reach the issue of exhaustion.
A. Due Process
Huanga argues that requiring him to bear the burden of proof at his immigration bond hearing violated his right to due process. See Pet. at 19-22. Huanga notes that several district courts have held as a blanket rule that the Government must bear the burden of proof at § 1226(a) hearings to comport with due process. See id. Huanga argues that the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), supports placing the burden of proof on the Government. See Pet. at 22-24.
The parties agree that the Second Circuit's recent decision in Velasco Lopez v. Decker, 978 F.3d 842 (2d Cir. 2020), must be applied to this question, though they disagree as to the case's effect. The petitioner in Velasco Lopez was an alien present in the United States pursuant to the Deferred Action for Childhood Arrivals program whose renewal application under that program was denied. See id. at 846. Velasco Lopez was detained by ICE, held for three and a half months, and then was denied bond at a hearing at which he "bore the burden of showing to the satisfaction of the immigration judge that he was neither a flight risk nor dangerous." Id. at 847. Velasco Lopez remained detained and was denied bond at a second hearing at which he again bore the burden of proof. Id. After a total of fourteen months in pre-removal detention, Velasco Lopez filed a habeas petition "challenging on due process grounds the procedures employed in his hearings," which the district court granted, ordering "a new hearing at which the Government, not Velasco Lopez, was required to justify his continued incarceration by presenting clear and convincing evidence that he was either a flight risk or a danger to the community." Id. at 848.
Velasco Lopez looked to the three-factor balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), to determine "whether Velasco Lopez's ongoing incarceration posed due process concerns at the time of his habeas filing and whether additional procedural protections then became necessary." 978 F.3d at 851. The decision relied on the length of Velasco Lopez's detention, almost fifteen months, and the fact that he lacked any "administrative mechanism by which [he] could have challenged his detention on the ground that it reached an unreasonable length." Id. at 852. Importantly, Velasco Lopez did not articulate a broad rule that it is always a violation of due process for a detainee to bear the burden of proof at a § 1226(a) detention hearing.
Since Velasco Lopez was decided, district courts in this Circuit have reached conflicting interpretations of the opinion. Several courts have concluded that Velasco Lopez requires case-specific Mathews balancing to determine whether the burden of proof at a § 1226(a) hearing worked a violation of due process. See Doe v. Decker, 2021 WL 5112624, at *3 n.2 (S.D.N.Y. Nov. 3, 2021) ("In light of [ Velasco Lopez ], district courts apply the [ Mathews ] test when analyzing discretionary detentions pending removal pursuant to 1226(a)."); Jimenez, 2021 WL 826752, at *8 ("I will follow the Second Circuit's lead in Velasco Lopez II, 978 F.3d at 851, and apply the three-factor balancing test elucidated in [ Mathews ]."); Gonzalez Evangelista v. Decker, 2021 WL 101201, at *4 (S.D.N.Y. Jan. 12, 2021) (applying Mathews ); Arana v. Decker, 2020 WL 7342833, at *5 (S.D.N.Y. Dec. 14, 2020) ("In accordance with Velasco Lopez, the Court applies the Mathews v. Eldridge balancing test ...."). Other courts have held that the view of many courts in this Circuit prior to Velasco Lopez — that the burden of proof at a § 1226(a) hearing must always rest on the Government to comport with due process — retains viability following Velasco Lopez. See Reyes v. King, 2021 WL 3727614, at *7 n.7 (S.D.N.Y. Aug. 20, 2021) (holding that Velasco Lopez did not require departure from trend among district courts requiring that the burden be placed on the Government at a § 1226(a) bond hearing); Banegas v. Decker, 2021 WL 1852000, at *3 (S.D.N.Y. May 7, 2021) ("neither the Circuit's decision in Velasco Lopez nor any other binding appellate authority overrules the ‘overwhelming consensus’ of courts in this District that the Due Process Clause of the Fifth Amendment requires the Government to bear the burden to justify continued detention of a noncitizen who is detained pursuant to § 1226(a), even absent ‘prolonged detention.’ "); Quintanilla v. Decker, 2021 WL 707062, at *3 (S.D.N.Y. Feb. 22, 2021) (holding that due process requires the Government to bear the burden of proof at a § 1226(a) bond hearing regardless of the length of detention).
Some courts within this District have adopted a set of factors distinct from Mathews for assessing whether an alien detained under 8 U.S.C. § 1226(c), and who therefore is not entitled to a bond hearing upon initial detention, has nevertheless been detained for so long that due process requires the Government to provide a bond hearing. See, e.g., Vallejo v. Decker, 2018 WL 3738947, at *3-4 (S.D.N.Y. Aug. 7, 2018). At least one court has examined these factors to determine whether an alien held pursuant to § 1226(a) is entitled to a second bond hearing. See Gonzalez Evangelista, 2021 WL 101201, at *3. Because these factors were not used in Velasco Lopez, and because we regard the issue of whether due process is violated by prolonged detention without a hearing to be distinct from whether due process is violated by prolonged detention with an initial hearing, we do not to look to these factors.
We believe that Velasco Lopez mandates that a court engage in Mathews balancing to determine whether a petitioner's procedural due process rights were violated by an initial hearing under § 1226(a) at which the petitioner bore the burden of proof. This approach is consistent with the holding of Velasco Lopez, which made clear that as the duration of detention increased, the petitioner's liberty interest became more compelling, see 978 F.3d at 852, and that it might eventually overcome any interest the Government had in continued detention, see id. at 853-54. This analysis can only be read to suggest that the inverse is also true: namely, that it may not be a violation of due process for an alien to bear the burden of proof at a hearing that takes place shortly after their initial detention, as happened here, and where a petition is filed after a relatively brief period. Significantly, Velasco Lopez explained in a footnote that "[t]his case does not require us to establish a bright-line rule for when due process entitles an individual detained under § 1226(a) to a new bond hearing with a shifted burden." Id. at 855 n.13.
This stands in contrast to the Second Circuit's examination of due process concerns with detention under § 1226(c), relating to aliens convicted of certain crimes, in which the court expressly adopted a "bright-line" rule that aliens were entitled to a hearing after six months. Lora v. Shanahan, 804 F.3d 601, 615 (2d Cir. 2015), judgment vacated, ––– U.S. ––––, 138 S. Ct. 1260, 200 L.Ed.2d 415 (2018).
We will therefore assess Huanga's due process claim using the three-part balancing test set forth in Mathews, which requires that we evaluate (1) "the private interest that will be affected by the official action"; (2) "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards"; and (3) "the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews, 424 U.S. at 335, 96 S.Ct. 893.
Consistent with the Second Circuit's approach in Velasco Lopez, we examine the first two Mathews factors by focusing on the facts specific to Huanga, while looking to both general and case-specific considerations implicated by the third factor.
1. Private Interest
Huanga was detained at Orange County Correctional Facility during the pendency of his removal proceedings. See Order Denying Bond; Pet. ¶ 5. We agree that the private interest at issue is "the most significant liberty interest there is — the interest in being free from imprisonment." Velasco Lopez, 978 F.3d at 851. Additionally, he was in a jail, "held alongside criminally charged defendants and those serving criminal sentences." Id. (referring to the Orange County Correctional Facility). Huanga "has been unable to see family and friends outside of visiting hours, engage in normal activities permitted by life outside of a penal facility, and has limited access to communications facilities." Arana, 2020 WL 7342833, at *5 (applying the "private interest" factor).
As Velasco Lopez notes, "[t]he longer the duration of incarceration, the greater the deprivation." 978 F.3d at 852. In Velasco Lopez and lower court cases finding a due process violation, aliens have been detained for extended periods of time. See id. at 851 ("nearly fifteen months"); Jimenez, 2021 WL 826752 at *9 ("over a year"); Gonzalez Evangelista, 2021 WL 101201 at *1 ("approximately 11 months") ; Arana, 2020 WL 7342833 at *5 ("more than nine months"). In contrast, Huanga was first detained on September 30, 2021, and therefore when he filed his petition, he had been detained for five-and-a-half months. Even now he has been detained for under eight months. While Huanga's interest in his liberty is compelling and weighs in his favor, we conclude that it must be regarded as somewhat less weighty than the lengthier detentions in the decisions reviewed above.
The specific circumstances of Huanga's detention and its duration warrant comment. Far from languishing in uncertain and indefinite detention with no end to his removal proceedings in sight, see Velasco Lopez, 978 F.3d at 846 (describing the petitioner's detention as having "no end in sight"), Huanga's order of removal was made final on December 16, 2021, less than three months after he was first arrested. See Bacchus Decl. ¶¶ 11, 22. ICE contacted the Ecuadorian consulate on January 20, 2022 to facilitate his timely removal. See id. ¶ 25. However, that same day, Huanga obtained a stay of his removal. See id. ¶ 26. On January 31, 2022, on Huanga's motion, his removal proceedings were re-opened to permit him to pursue a new form of relief against removal, seeking protection under the Convention Against Torture. See id. ¶ 31. Huanga's removal may well have been carried out by the date he filed this petition had he not obtained this relief. We also note that the application Huanga filed to obtain re-opening of his case is premised on a form of relief that Huanga could have pursued during his initial removal proceedings. Thus, there has been little delay caused by the Government in Huanga's case. See Doe v. Decker, 2020 WL 4937395, at *5 (S.D.N.Y. Aug. 21, 2020) ("One indicator of unreasonable detention is unreasonable delay by the Government in pursuing and completing removal proceedings.").
Huanga argues that his representation during his initial removal proceedings was ineffective, and criticizes his counsel for not advising him to pursue relief from detention via an application for asylum. See Pet. at 3. We agree that it would be improper to blame Huanga for his reliance on the advice of counsel, but in gauging the unreasonableness of his detention and thus the private interest at issue, we nevertheless find it relevant that Huanga's continuing detention is not solely attributable to the respondents. At the very least, Huanga cannot claim as plausibly as the petitioner in Velasco Lopez that his detention has "no end in sight." 978 F.3d at 846.
In the context of an alien who is detained following entry of a final removal order, courts have held that an alien's "due process rights are not jeopardized by his continued detention as long as his removal remains reasonably foreseeable." Wang v. Ashcroft, 320 F.3d 130, 146 (2d Cir. 2003) ; see Portillo v. Decker, 2022 WL 826941, at *5 (S.D.N.Y. Mar. 18, 2022) (detention did not violate due process where an alien's removal was forestalled by a stay obtained by the alien, as "[f]or obvious reasons, a noncitizen's use of the American judicial process, to the extent it delays removal, does not warrant release."). We believe similar considerations should inform the weight we place on the duration of Huanga's detention for purposes of Mathews balancing.
Finally, although some courts have held that a detention of greater than six months creates a strong liberty interest, these decisions generally address detentions pursuant to § 1226(c), at which a detainee would not have had an initial bond hearing. See Lett v. Decker, 346 F. Supp. 3d 379, 387 (S.D.N.Y. 2018) (stating in the context of § 1226(c) that "[c]ourts in this Circuit have generally been skeptical of prolonged detention of removable immigrants, without process, lasting over six months").
For these reasons, Huanga's private interest here is strong, but less so than that possessed by the petitioners in Velasco Lopez, Jimenez, Gonzalez Evangelista, and Arana, each of whom were detained for longer periods and whose removal proceedings appear to have proceeded less expeditiously than Huanga's.
2. Risk of Erroneous Deprivation
The second factor under Mathews is "the risk of an erroneous deprivation of such [private] interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards." Mathews, 424 U.S. at 335, 96 S.Ct. 893. "Procedural due process rules are shaped by the risk of error inherent in the truth-finding process." Velasco Lopez, 978 F.3d at 852 (citing Mathews, 424 U.S. at 344, 96 S.Ct. 893 ). Accordingly, we look to whether "the procedures underpinning [the alien's] lengthy incarceration markedly increased the risk of error," id. at 852, that is, a risk of error in the IJ's determination that he was a danger to the community.
Velasco Lopez pointed to circumstances suggesting that the procedures used to detain the petitioner had "seriously impacted his ability to secure bail." Id. There, the IJ had relied on outstanding state charges to deny the petitioner bail. Id. Then, while the petitioner was detained, ICE declined to present him for state criminal court appearances at which he could — and eventually did — obtain dismissal of the charges. See id. at 852-53. At a second bond hearing, the IJ drew negative inferences from the petitioner's inability to obtain and produce records relating to petitioner's dismissed charges. Id. at 853. Velasco Lopez noted that, had the burden been placed on the Government, it could have relied upon its "substantial resources" and "broad regulatory authority" to obtain information bearing upon the petitioner's charges and, thus, the danger he posed to the community. Id.
In Jimenez, the court found a "high risk of erroneous deprivation," noting that the petitioner faced difficulty in communicating with counsel and obtaining evidence in light of his incarceration at a remote facility, "the limitations on in-person visiting necessitated by the COVID-19 pandemic, and the technical problems with the videoconferencing software used by the jail contractor." 2021 WL 826752, at *9. The court also noted that the petitioner had "tendered a factual record that the Government might find difficult to overcome if it had to demonstrate affirmatively that [the petitioner] poses a risk of flight or danger to the community necessitating his continued detention." Id. (quoting Arana, 2020 WL 7342833, at *5 ). In Arana, which found a due process violation, the petitioner's detention was based on pending charges for driving while under the influence of alcohol. 2020 WL 7342833, at *2. The court reasoned that the petitioner had shown that there was a high risk of an erroneous deprivation by producing "evidence that, after his arrest, he engaged diligently in alcohol abuse therapy and made arrangements to ensure that he would have no need to drive." Id. at *5. Against this evidence, the court reasoned, "the mere fact of a charge that he may be able to resolve as a violation may not be sufficient to carry the Government's burden of demonstrating that Mr. Arana poses a risk of flight or danger to the community." Id.
Here, Huanga's detention was not based on pending charges but on past convictions, and thus there was no issue of affording him the ability to confront pending charges, as was the case in Velasco Lopez and Gonzalez Evangelista. See Velasco Lopez, 978 F.3d at 852-53 (dismissal of underlying criminal charges was delayed by detention and ICE's refusal to produce petitioner for state court appearances); Gonzalez Evangelista, 2021 WL 101201, at *4 (noting that petitioner had "been unable to defend himself against" his pending misdemeanor charges because of his detention). Thus, while in Velasco Lopez and Gonzalez Evangelista the basis for the finding of dangerousness was driven by unresolved charges, Huanga was convicted of or pled guilty to each of the offenses that the IJ referred to in his decision. See Bacchus Decl. ¶¶ 5-10; Bond Hearing Transcript at 8-10. To the extent Huanga believed that factors mitigated the impact of these convictions, such information would be available to Huanga via his own testimony.
Huanga identifies several reasons why placing the burden on detainees would be associated with a greater risk of an erroneous deprivation, but these are largely presented as generic to immigration detention hearings rather than specific to Huanga's circumstances. See Pet. ¶ 52 (referring to the difficulties of providing documentation to the IJ due to barriers such as "indigence, language and cultural barriers, limited education, and mental health issues," as well as difficulty communicating with counsel and family). These impediments, Huanga claims, create "a significant risk of erroneous denials of bond due to a noncitizen's inability to provide sufficient proof to satisfy the immigration court." Id. Additionally, Huanga claims that "[t]he only evidence submitted at [his] bond hearing was submitted by [him]," and that "DHS would not have been able to establish dangerousness" on the basis of his convictions for driving while under the influence of alcohol. See Pet. Reply at 13.
In applying Mathews, however, the question is not simply whether a shifted burden would make the IJ less likely to conclude that Huanga was a danger to the community. Rather, the question is whether this procedure presented a substantial risk of an "erroneous deprivation" — that is, a wrongful determination that Huanga was a danger to the community. The record of Huanga's own bond hearing does not suggest that the risk of an erroneous deprivation was high. The criminal convictions had occurred in the past and could be presumed to have come about only after compliance with due process. As the IJ noted, Huanga failed to come forward with evidence that would mitigate his prior convictions for operating a motor vehicle while under the influence of alcohol. See Bond Hearing Transcript at 9-10. Huanga does not represent that he has obtained additional evidence suggesting the Government would have difficulty meeting its burden, as the petitioner in Arana did. Moreover, Huanga's convictions, which formed the basis of the IJ's determination that Huanga was a danger to the community, have not been altered in any way that would be analogous to the dismissal of the underlying charges in Velasco Lopez. Thus, Huanga has not provided this Court with any basis to conclude that his hearing featured a substantial risk of that type of erroneous deprivation. Although Huanga implies that not bearing the burden of proof was key to the Government's case, in fact "ICE submitted the only evidence upon which the immigration judge relied" to conclude that Huanga was a danger to the community, as the Government points out. See Opp. at 27 n.13. That determination was supported by BIA precedent that "[d]riving under the influence is a significant adverse consideration in bond proceedings." Siniauskas, 27 I. & N. Dec. at 209. Although Huanga may have provided significant evidence tending to show that he was not a risk of flight, he offered no evidence that addressed whether he was a danger to the community. As the IJ noted, Huanga did not attempt to contextualize his past convictions and did not argue that mitigating factors or changed circumstances demonstrated that, despite the convictions, he did not represent a danger to the community. See Bond Hearing Transcript at 9-10. Accordingly, rather than simply relying on the fact that Huanga bore the burden of proof, the Government made its case for why Huanga posed a danger to the community and Huanga failed to present evidence to the contrary.
Moreover, to the extent that "the core of due process is the right to notice of the nature of the charges and a meaningful opportunity to be heard," Brown v. Ashcroft, 360 F.3d 346, 350 (2d Cir. 2004), Huanga had full notice of the charges against him and was provided a meaningful opportunity to be heard. He received a notice to appear which complied with the requirements of 8 U.S.C. § 1229(a)(1), specifying the "nature of the proceedings against the alien," the "time and place at which the proceedings will be held," the "acts or conduct alleged to be in violation of law," the "charges against the alien and the statutory provisions alleged to have been violated," and the fact that he could be represented by counsel. See Notice to Appear at *1-2. Although Huanga bore the burden of proof at his bond hearing, he was represented by counsel, see Bond Hearing Transcript, and was able to submit any evidence he believed relevant to the IJ's determination, see 8 C.F.R. § 1003.19(d). "[I]n most instances, if an alien receives notice of this information and a meaningful opportunity to participate in her removal proceedings, due process is satisfied." Nolasco v. Holder, 637 F.3d 159, 163 (2d Cir. 2011).
Certainly, the fact that Huanga was detained placed strictures on his ability to gather information. But unlike the petitioners in Velasco Lopez, Jimenez, and Arana, Huanga does not convincingly articulate a basis for concluding that his hearing presented a substantial risk of an erroneous deprivation.
We therefore conclude that the second factor either does not weigh in favor of Huanga in his case.
3. Government Interest
The Government's interest in the enforcement of immigration laws is considerable. "[I]t must weigh heavily in the balance that control over matters of immigration is a sovereign prerogative, largely within the control of the executive and the legislature." Landon v. Plasencia, 459 U.S. 21, 34, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). The Government has an interest in "ensuring the appearance of aliens at future immigration proceedings" and "preventing danger to the community." Zadvydas v. Davis, 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) ; accord Velasco Lopez, 978 F.3d at 854 (noting the "well-established" governmental interests of "(1) ensuring that noncitizen[s] do not abscond and (2) ensuring they do not commit crimes"). The Supreme Court "has recognized detention during deportation proceedings as a constitutionally valid aspect of the deportation process." Demore, 538 U.S. at 523, 123 S.Ct. 1708. "[D]eportation proceedings ‘would be vain if those accused could not be held in custody pending the inquiry into their true character.’ " Id. (quoting Wong Wing v. United States, 163 U.S. 228, 235, 16 S.Ct. 977, 41 L.Ed. 140 (1896) ). So too is "[t]he prompt execution of removal orders ... a legitimate governmental interest, which detention may facilitate." Hernandez-Lara v. Lyons, 10 F.4th 19, 32 (1st Cir. 2021).
We also note the governmental interest in public safety. "Drunk driving is an extremely dangerous crime." Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). "[T]he very nature of the crime of [drunk driving] presents a serious risk of physical injury to others." United States v. DeSantiago-Gonzalez, 207 F.3d 261, 264 (5th Cir. 2000) (punctuation omitted). It takes "a grisly toll on the Nation's roads, claiming thousands of lives, injuring many more victims, and inflicting billions of dollars in property damage every year." Birchfield v. North Dakota, 579 U.S. 438, 443, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016).
Finally, because Huanga's argument is not tethered to the facts of his case or the duration of his detention, he effectively seeks for the Government to bear the burden of proof at all initial § 1226(a) hearings. Implicated, then, is not only the Government's interest in detaining Huanga pending removal, but the Government's interest in detaining any alien pending removal. When an alien is first detained, the Government may face difficulties in determining their identity and criminal background, especially where the Government must hurdle language barriers and navigate the records of foreign legal systems. At that early juncture, the Government's interests are at their highest — it is only through the passage of time, when "this ‘lack of information’ rationale" becomes "less persuasive," see Velasco Lopez, 978 F.3d at 853, that it may be outweighed by the alien's interest in liberty, see id. at 855.
In Velasco Lopez, the court acknowledged that the "Government's interest may have initially outweighed short-term deprivation of Velasco Lopez’s liberty interests," but reasoned that the "balance shifted once his imprisonment became unduly prolonged." 978 F.3d at 855. Here, the duration of Huanga's incarceration has not become "unduly prolonged." The Government has shown that it has taken up reasonably prompt efforts to advance Huanga's removal proceedings. See Bacchus Decl. ¶¶ 15-16 (bond hearing was held the day after Huanga requested one); id. ¶ 22 (Huanga's removal was made final less than three months after he was arrested); id. ¶ 25 (ICE took efforts to obtain travel documents approximately one month after Huanga's removal was made final). That Huanga's detention has continued is at least in part attributable to his own efforts to re-open his removal proceedings to pursue relief that was available during his initial removal proceedings. Accordingly, even if his detention could be characterized as "prolonged," it has not been "unduly" prolonged.
For these reasons, we conclude that the Government interest here weighs against a finding that Huanga has been denied procedural due process.
In the end, after balancing the three Mathews factors in light of the record before us, we cannot say that the Government has violated Hunaga's right to due process. either through the placement of the burden of proof on him at his initial bond hearing or through his continued detention since September 30, 2021. See Borbot v. Warden Hudson Cnty. Corr. Facility, 906 F.3d 274, 276 (3d Cir. 2018) (due process did not require that an alien detained for more than a year receive a second bond hearing at which the Government would bear the burden of proof); Lopez v. Barr, 458 F. Supp. 3d 171, 178 (W.D.N.Y. 2020) (rejecting due process claim based on burden imposed on alien at bond hearing under § 1226(a) ); Hylton v. Shanahan, 2015 WL 3604328, at *5 (S.D.N.Y. June 9, 2015) (same).
B. Immigration and Naturalization Act
Huanga argues that "[a]lthough 8 U.S.C. § 1226(a) is silent as to which party carries the burden of proof, the statutory context and legislative history of that provision demonstrates that DHS properly bears the burden of justifying a noncitizen's continued detention." Pet. ¶ 57. Huanga highlights that § 1226(c) expressly places the burden of proof on the alien, and maintains that the omission of this language in § 1226(a) should be regarded as an intentional and purposeful exclusion. See id. ¶ 58. Huanga also argues that Congress adopted § 1226 with knowledge that the previous version of that statute similarly committed pre-removal detention to the discretion of the Attorney General. See id. ¶¶ 60-62. Accordingly, when Congress enacted § 1226(a), again conferring this discretion on the Attorney General, its intent was to preserve the BIA's then-existing presumption against detention. See id.
"When the statutory text is plain and unambiguous, our sole function is to enforce it according to its terms." United States v. Bedi, 15 F.4th 222, 226 (2d Cir. 2021) (punctuation omitted). "Extrinsic materials have a role in statutory interpretation only to the extent they shed a reliable light on the enacting Legislature's understanding of otherwise ambiguous terms." Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005). "After all, ‘[i]f judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people's representatives.’ " Bedi, 15 F.4th at 226 (quoting Bostock v. Clayton Cnty., ––– U.S. ––––, 140 S. Ct. 1731, 1738, 207 L.Ed.2d 218 (2020) ).
We do not agree with Huanga's interpretation of § 1226(a). Even if BIA had adopted a presumption against detention prior to the enactment of § 1226(a), as Huanga claims, the statute makes clear that the Attorney General has discretion to detain an alien or to release the alien on bond or conditional parole. See 8 U.S.C. § 1226(a) ("Except as provided in subsection (c) and pending such decision, the Attorney General (1) may continue to detain the arrested alien; and (2) may release the alien on (A) bond of at least $1,500 ... or (b) conditional parole"). Even after an initial decision whether to detain or release an alien, "[t]he Attorney General at any time may revoke a bond or parole under subsection (a), rearrest the alien under the original warrant, and detain the alien." Id. § 1226(b). We cannot assume that Congress intended to constrain the Attorney General to exercise his or her discretion by means of particular procedures.
As to the argument that we should read significance into the fact that § 1226(c) specifies that the burden of proof rests on the alien, while § 1226(a) does not, we do not find this to be of consequence. Section 1226(c) is in effect a withdrawal of discretion, providing that the Attorney General may only release an alien with a specified criminal history if "the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding." Id. § 1226(c)(2). The fact that no equivalent burden of proof was set forth in § 1226(a) reflects an intention not to impose restrictions on the Attorney General's discretion to detain or release aliens who lack the criminal history identified in § 1226(c)(1). Congress did not set a burden of proof for bail hearings under § 1226(a) because the hearing as a whole is a product of DHS regulations and BIA decisions, not an act of Congress. Because the agency has developed this administrative proceeding, it chooses the procedure that will govern it, absent a constitutional defect.
Moreover, the Supreme Court has already addressed the statutory interpretation of § 1226(a), stating that "the meaning of the relevant statutory provision[ ] is clear." Jennings v. Rodriguez, ––– U.S. ––––, 138 S. Ct. 830, 848, 200 L.Ed.2d 122 (2018). In Jennings, the Court briefly explained § 1226(a) :
Finally, as noted, § 1226(a) authorizes the Attorney General to arrest and detain an alien "pending a decision on whether the alien is to be removed from the United States." § 1226(a). As long as the detained alien is not covered by § 1226(c), the Attorney General "may release" the alien on "bond ... or conditional parole." § 1226(a). Federal regulations provide that aliens detained under § 1226(a) receive bond hearings at the outset of detention. See 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1).
Id. at 847.
In reaching this interpretation of § 1226(a), the Court expressly rejected an interpretation adopted by the Ninth Circuit, which, citing canons of constitutional avoidance, "ordered the Government to provide procedural protections that go well beyond the initial bond hearing established by existing regulations — namely, periodic bond hearings every six months in which the Attorney General must prove by clear and convincing evidence that the alien's continued detention is necessary." Id. The Supreme Court instead concluded that "[n]othing in § 1226(a) ’s text — which says only that the Attorney General ‘may release’ the alien ‘on ... bond’ — even remotely supports the imposition of either of those requirements." Id. Jennings forecloses consideration of the interpretation Huanga has advanced.
C. Administrative Procedure Act
Huanga argues that the BIA's adoption of a standard which requires aliens to bear the burden of proof at bond hearings pursuant to § 1226(a) was arbitrary and capricious and thus violates the APA. See Pet. ¶¶ 63-65. This standard was announced in the BIA's decision in Adeniji, 22 I. & N. Dec. 1102. In Adeniji, "the BIA began placing the burden on the arrested individual to demonstrate, to the satisfaction of the arresting officer, that release would not pose a danger to property or persons and that the individual is likely to appear for any future proceedings to bond hearings conducted by immigration judges under § 1226(a)." Jimenez, 2021 WL 826752, at *5. The parties in Adeniji had apparently agreed that the alien would have the burden of showing that he was not a risk of flight or a danger to the community. See 22 I. & N. Dec. at 1111-12. The BIA then held that bond hearings under 8 U.S.C. § 1226(a) were governed by regulations promulgated by the DOJ at 8 C.F.R. § 236.1(c)(8), which provide that:
Any officer authorized to issue a warrant of arrest may, in the officer's discretion, release an alien not described in section 236(c)(1) of the Act, under the conditions at section 236(a)(2) and (3) of the Act; provided that the alien must demonstrate to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.
Id. at 1112. The BIA concluded that these regulations, adopted under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208 ("IIRIRA"), "have added as a requirement for ordinary bond determinations under section 236(a) of the Act that the alien must demonstrate that ‘release would not pose a danger to property or persons,’ even though section 236(a) does not explicitly contain such a requirement." 22 I. & N. Dec. at 1113. The BIA then deemed that 8 C.F.R. § 236.1(c)(8) "contain[ed] the appropriate test, as it is binding on us and pertains directly to removal proceedings under the IIRIRA," id., and so the burden of proof was rightly placed upon the alien respondent, see id.
Huanga first contends that Adeniji is arbitrary and capricious because it mistakenly applied 8 C.F.R. § 236.1(c)(8), both because § 236.1(c)(8) does not govern IJ decisions and because it had expired. See Pet. ¶ 65 ( Adeniji "applied the wrong federal regulation to decide what standards should govern" bond hearings under § 1226(a) ). Huanga argues that the BIA instead should have looked to 8 C.F.R. § 236.1(d)(1), which relates to IJs and bond redeterminations. See id. ¶ 66. Huanga argues that Adeniji cannot be viewed as a product of "reasoned decisionmaking" and thus violates the APA. Id.
The Supreme Court has held that "administrative agencies have broad discretion to interpret the statutes they are charged with implementing." Khan v. U.S. Dep't of Justice, 494 F.3d 255, 258 (2d Cir. 2007) (citing Chevron, U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ). Section 1226(a) is silent on which party bears the burden of proof at a bond determination hearing and it was thus within the agency's purview to interpret § 1226(a) as it did.
In adopting 8 C.F.R. § 236.1(c)(8), the Attorney General channeled the discretion to release aliens pending removal conferred by 8 U.S.C. § 1226(a), permitting release on bond where the alien "demonstrate[s] to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding." The BIA reasonably interpreted its regulations to provide that the same standard governs an immigration officer's initial detention decision and an IJ's review of that decision — specifically, that the burden of proof rests with the alien. The regulations’ clear discretion accorded to immigration officers to detain aliens unless shown to their satisfaction that the alien was not a risk of flight or threat to the community, see 8 C.F.R. § 236.1(c)(8), would be rendered meaningless and ineffectual if a different standard applied to a hearing designed to review that decision. Accordingly, the BIA's placement of the burden of proof on aliens at immigration bond hearings should be entitled to deference.
We reject Huanga's argument that the BIA should have instead looked to 8 C.F.R. § 236.1(d)(1) for the standard to be applied at bond hearings. As Huanga acknowledges, see Pet. at 30 n.12, § 236.1(d)(1) does not place the burden of proof on any party, but merely provides that "the immigration judge is authorized to exercise the authority in [ 8 U.S.C. § 1226(a) ] to detain the alien in custody, release the alien, and determine the amount of bond." Accordingly, this regulation could not provide any greater interpretive clarity than § 1226(a) itself, which grants discretion on detention decisions to the Attorney General. At any rate, it does not create a conflict that would render the BIA's interpretation unreasonable.
We also reject Huanga's argument that it was arbitrary and capricious for the BIA to rely on 8 C.F.R. § 236.1(c)(8) because the regulation had expired. The BIA in Adeniji considered whether the regulation, § 236.1(c)(8), was intended to be permanent or was solely applicable during the "Transition Rules" period set forth in the IIRIRA. See Adeniji, 22 I. & N. Dec. at 1103, 1109-12. The BIA concluded that "the substance of" § 236.1(c)(8) had been adopted in 1997 following the enaction of the IIRIRA at 62 Fed. Reg. at 10,360, which contained commentary clarifying that it would later be supplemented by interim regulations to apply during the Transition Period Custody Rules. As the BIA explained, although the Transition Period final rules redesignated 8 C.F.R. § 236.1(c)(2) as § 236.1(c)(8), see 63 Fed. Reg. 27,441 -50 (May 18, 1998), this was simply a recodification of an existing regulation. See 22 I. & N. Dec. at 1113. Accordingly, the fact that the present version of § 236.1(c)(8) was recodified as part of a set of temporary rules did not establish that the re-codified provisions were thereby made temporary. See id. Because the BIA rationally explained the basis for its interpretation, it did not act arbitrarily or capriciously in reaching its conclusion. Given that "ambiguities in statutes within an agency's jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion," Nat'l Cable & Telecomm. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005), the agency did not act unreasonably in filling the gap as it did. See generally Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (holding that an agency's interpretation of its own regulations is entitled to deference).
The "transition period" at issue, which is not directly related to the present matter, was a product of § 303(b)(2) of the IIRIRA. See Pub. L. 104-208, Div. C, Title III, § 303(b)(2), Sept. 30, 1996, 110 Stat. 3009-586; see also Velasquez v. Reno, 37 F. Supp. 2d 663, 671 (D.N.J. 1999) (examining this provision).
The relevant portion of the regulation, then codified at 8 C.F.R. § 236.1(c)(2), exactly matches the text of what in May 19, 1998 became 8 C.F.R. § 236(c)(8). See Adeniji, 22 I. & N. Dec. at 1113.
Huanga cites Brito v. Barr, 415 F. Supp. 3d 258, 268 (D. Mass. 2019), in which the court held that the "BIA's policy of placing the burden of proof on the alien ... is a violation of the APA." See Pet. at 32 n.15. However, that conclusion was premised solely on the court's earlier conclusion as to the constitutionality of the BIA's policy: the court found that "the BIA Policy ... violates the APA because the policy is unconstitutional." 415 F. Supp. 3d at 268 (emphasis added). Brito added that, given its ruling on constitutionality, it "need not address the Plaintiffs’ alternative theory under the APA." Id. at 268 n.4. Because Brito did not evaluate the APA claim other than through its determination of non-constitutionality, it does not support Huanga's APA argument.
Huanga's remaining argument is that the agency improperly changed course from its practice before 1999 by allocating the burden of proof to the alien. Smiley v. Citibank (S. Dakota), N.A., 517 U.S. 735, 742, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996), sets forth the standard for gauging whether an agency's change of course constitutes arbitrary and capricious action:
Of course the mere fact that an agency interpretation contradicts a prior agency position is not fatal. Sudden and unexplained change, see, e.g., Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 46-57, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), or change that does not take account of legitimate reliance on prior interpretation, see, e.g., United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 670-675, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973) ; NLRB v. Bell Aerospace Co., 416 U.S. 267, 295, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974), may be "arbitrary, capricious [or] an abuse of discretion," 5 U.S.C. § 706(2)(A). But if these pitfalls are avoided, change is not invalidating, since the whole point of [ Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984),] is to leave the discretion provided by the ambiguities of a statute with the implementing agency.
More recently, the Supreme Court has clarified that agencies "are free to change their existing policies as long as they provide a reasoned explanation for the change," and the agency "display[s] awareness that it is changing position and show[s] that there are good reasons for the new policy." Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221, 136 S.Ct. 2117, 195 L.Ed.2d 382 (2016) (punctuation omitted).
Huanga highlights that the BIA had, before Adeniji, operated with the "presumption of liberty" and only detained aliens pending removal for "noncitizens with convictions for aggravated felonies." See Pet. ¶¶ 66-67. However, this "radical shift" was not an unexplained BIA policy choice, but an interpretation of DOJ regulations that placed the burden on aliens to show to the satisfaction of an immigration officer that they were not a risk of flight or danger to the community. See Adeniji, 22 I. & N. Dec. at 1109-13. In any event, Adeniji recognized that it was shifting agency policy and gave a reasoned explanation why it was making the shift. See Encino Motorcars, 579 U.S. at 221-22, 136 S.Ct. 2117. Given the discretion that was created by the silence of the statute on the issue of burden of proof, the agency did not act unlawfully in instituting the new policy.
IV. CONCLUSION
For the foregoing reasons, Huanga's petition (Docket # 1) should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed. R. Civ. P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Torres. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ; Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).