Black v. Almodovar; G.M. v. Almodovar
Split Score
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This score (0-100) indicates how likely this case is to be reviewed by the Supreme Court based on:
Case Summary
Disposition
Affirmed
Sitting en banc, the Second Circuit denied rehearing of an earlier panel decision holding that immigrants detained for an "unreasonably prolonged" period under 8 U.S.C. § 1226(c) are entitled to a bond hearing at which the Government must prove, by clear and convincing evidence, that continued detention is necessary. A majority of active judges declined to reconsider the ruling, while several judges penned dissents that highlighted a growing split among the circuits over which party bears the burden at such hearings.
Circuit Split Identified
Legal Issue
Whether due-process requires the Government to bear the burden, by clear-and-convincing evidence, to justify continued immigration detention once that detention under 8 U.S.C. § 1226(c) (or § 1226(a) in some cases) has become unreasonably prolonged, and thus what procedures apply at the remedial bond hearing.
Circuit Positions
Government must justify continued detention at a prolonged-detention bond hearing by clear and convincing evidence.
Non-citizen bears the burden of proof; due process does not require shifting the burden to the Government even after prolonged detention.
Split approach (government must prove dangerousness by clear-and-convincing evidence but only preponderance for flight-risk, mainly in § 1226(a) context).
Conflict Summary
The Second and Third Circuits hold that, after detention becomes unreasonably prolonged, the Government must prove dangerousness or flight-risk by clear and convincing evidence at a bond hearing; the Fourth and Ninth Circuits (and, in the § 1226(a) context, parts of the First and Third) hold that due process is satisfied if the non-citizen bears the burden of proof (usually by a preponderance) and no burden-shifting to the Government is constitutionally required.