Hernandez Lara v. Lyons (2021)

See Hernandez-Lara, 10 F.4th at 36 (“Unlike section 1226(c), section 1226(a) applies to a wide swath of noncitizens, many of whom . . . have no criminal record at all.”); Velasco Lopez, 978 F.3d at 854 (noting that “[u]nlike those mandatorily detained under § 1226(c), persons subject to detention under § 1226(a) . . . include individuals with no criminal record”).

See Hernandez-Lara v. Lyons, 10 F.4th 19 , 29 (3d Cir. 2021) (“The exact length of detention under section 1226(a) is impossible to predict and can be quite lengthy”); Velasco Lopez, 978 F.3d at 852 (“Detention under § 1226(a) is frequently prolonged because it continues until all proceedings and appeals are concluded . . . . even where an individual has prevailed and the [g]overnment appeals.”) (“[I]t is impossible to say how long [the detainee’s] incarceration would have l…

Id. ("[T]he fact that some detention is permissible does not change the fact that a detainee suffers significant liberty deprivations.").

See Hernandez-Lara, 10 F.4th at 33 (“[L]imiting the use of detention to only those noncitizens who are dangerous or a flight risk may save the government, and therefore the public, from expending substantial resources on needless detention.”); Velasco Lopez, 978 F.3d at 855 (“When the Government incarcerates individuals it cannot show to be a poor bail risk for prolonged periods of time, as in this case, it separates families and removes the community breadwinners, caregiver…

Id. § 236.1(d)(1); Hernandez-Lara v. Lyons, 10 F.4th 19, 26 (1st Cir. 2021) (“If the officer opts for continued detention, the noncitizen can seek review of that decision at a bond hearing before an IJ.”).

At a bond hearing, the government bears the burden of proving “by clear and convincing evidence that [the noncitizen] poses a danger to the community” or “by preponderance of the evidence that [the noncitizen] poses a flight risk.” Hernandez- Lara v. Lyons, 10 F.4th 19, 41 (1st Cir. 2021).

At a bond hearing, the government bears the burden of proving “by clear and convincing evidence that [the noncitizen] poses a danger to the community” or “by preponderance of the evidence that [the noncitizen] poses a flight risk.” Hernandez- Lara v. Lyons, 10 F.4th 19, 41 (1st Cir. 2021).

At a bond hearing, the government bears the burden of proving “by clear and convincing evidence that [the noncitizen] poses a danger to the community” or “by preponderance of the evidence that [the noncitizen] poses a flight risk.” Hernandez- Lara v. Lyons, 10 F.4th 19, 41 (1st Cir. 2021).

At a bond hearing, the government bears the burden of proving “by clear and convincing evidence that [the noncitizen] poses a danger to the community” or “by preponderance of the evidence that [the noncitizen] poses a flight risk.” Hernandez- Lara v. Lyons, 10 F.4th 19, 41 (1st Cir. 2021).

Hernandez-Lara v. Lyons, 10 F.4th 19, 26 (1st Cir. 2021).

Finally, it is important to recognize that the deprivation of liberty that individuals detained under section 1226(a) experience is “not the result of a criminal adjudication.” See id. at 851 ; see also Hernandez-Lara, 10 F.4th at 36 (“Unlike section 1226(c), section 1226(a) applies to a wide swath of noncitizens, many of whom . . . have no criminal record at all.”).

The Court should address Petitioner’s due process claim in Count II. out in Mathews v. Eldridge, 424 U.S. 319, (1976), to evaluate the level of process owed a noncitizen.6 See, e.g., Hernandez-Lara v. Lyons, 10 F.4th 19, 27-39 (1st Cir. 2021) (applying Mathews to due process challenges to prolonged detention under § 1226(a)); Velasco Lopez v. Decker, 978 F.3d 842, 851-55 (2d Cir. 2020) (same).

Colo. Dec. 17, 2025); see also, e.g., Velasquez Salazar, 806 F. Supp. 3d at 1245 (holding the Mathews framework supports shifting the burden at a § 1226 bond hearing to the government); Hernandez-Lara, 10 F.4th at 39 (holding the government bears the burden at a bond hearing after prolonged detention under § 1226(a)); Velasco Lopez, 978 F.3d at 854 (same).

In the civil immigration detention context, courts consistently apply the balancing test set out in Mathews v. Eldridge, 424 U.S. 319, (1976), to evaluate the level of process owed a noncitizen.5 See, e.g., Hernandez-Lara v. Lyons, 10 F.4th 19, 27-39 (1st Cir. 2021) (applying Mathews to due process challenges to prolonged detention under § 1226(a)); Velasco Lopez v. Decker, 978 F.3d 842, 851-55 (2d Cir. 2020) (same).

Colo. Dec. 17, 2025) (“As for the burden of proof, the Court assesses the type of process required in a given case using the so-called Mathews balancing test.”) (internal citation omitted); see also Hernandez-Lara, 10 F.4th at 28 (“Whether the Due Process clause of the Fifth Amendment entitles a noncitizen detained pursuant to section 1226(a) to a bond hearing at which the government bears the burden” “is guided by the three-part balancing test articulated in [Mathews].”).

And, as relevant here, it provides “important constitutional limitations” on the “government's exercise of its power to detain immigrants pending removal.” Hernandez-Lara v. Lyons, 10 F.4th 19, 28 (1st Cir. 2021) (quoting id. at 695).

See Moncrieffe v. Holder, 569 U.S. 184, 201 (2013) (noting detained noncitizens “have little ability to collect evidence”); Hernandez-Lara, 10 F.4th at 31 (“[P]roving a negative (especially a lack of danger) can often be more difficult than proving a cause for concern.”).

However, the Government will have the burden of proving this point either by clear and convincing evidence that he poses a danger to the community or by a preponderance of the evidence that he poses a flight risk. , 10 F.4th 19, 41 (1st Cir. 2021).

The Court recognizes that “[t]he prompt execution of removal orders is a legitimate governmental interest, which detention may facilitate.” , 10 F.4th 19, 32 (1st Cir. 2021) (citing , 556 U.S. 418, 436 (2009); , 510 F.3d at 22 ).

However, the Government will have the burden of proving this point either by clear and convincing evidence that he poses a danger to the community or by preponderance of the evidence that he poses a flight risk. , 10 F.4th 19, 41 (1st Cir. 2021).

See Hernandez-Lara, 10 F.4th at 33 (“[L]imiting the use of detention to only those noncitizens who are dangerous or a flight risk may save the government, and therefore the public, from expending substantial resources on needless detention.”); Velasco Lopez, 978 F.3d at 855 (“When the Government incarcerates individuals it cannot show to be a poor bail risk for prolonged periods of time, as in this case, it separates families and removes the community breadwinners, caregiver…

“An [ICE] officer makes the initial detention determination for noncitizens subject to detention under section 1226(a).” Hernandez-Lara v. Lyons, 10 F.4th 19, 26 (1st Cir. 2021) (citing 8 C.F.R. § 236.1 (c)(8)).

However, the Government will have the obligation to prove this point either by clear and convincing evidence that he poses a danger to the community or by preponderance of the evidence that he poses a flight risk. , 10 F.4th 19, 41 (1st Cir. 2021).

However, the Government will have the obligation to prove this point either by clear and convincing evidence that he poses a danger to the community or by preponderance of the evidence that he poses a flight risk. , 10 F.4th 19, 41 (1st Cir. 2021).

Colo. 2024) (“‘[P]roving a negative (especially a lack of danger) can often be more difficult than proving a cause 14 Artega-Martinez did not determine the due process issue. 596 U.S. at 583 (“The courts below did not reach Arteaga-Martinez’s constitutional claim.”) for concern.’” (quoting Hernandez-Lara v. Lyons, 10 F.4th 19, 31 (1st Cir. 2021)).

As noted above, Lokombe challenges the constitutional sufficiency of the second bond hearing, arguing, inter alia, that the evidence before the Immigration Judge was insufficient, as a matter of law, to support a finding by a preponderance of evidence that he was a flight risk, as required by Hernandez-Lara v. Lyons, 10 F.4th 19, 41 (1st Cir. 2021).

Hernandez-Lara v. Lyons, 10 F.4th 19, 41 (1st Cir. 2021).

The BIA can provide that relief and is well equipped to determine whether she is entitled to it under the 3 Compare Hernandez-Lara v. Lyons, 10 F.4th 19, 39 (1st Cir. 2021) ("We therefore conclude that the government must bear the burden of proving dangerousness or flight risk in order to continue detaining a noncitizen under section 1226(a)."); Velasco Lopez v. Decker, 978 F.3d 842, 846 (2d Cir. 2020) ("[T]he district court correctly ordered a new bond hearing where the Gov…

Mass. Apr. 14, 2020)). and that the evidence before the IJ was insufficient, as a matter of law, to support a finding by clear and convincing evidence that he was a danger to the community, as required by Hernandez-Lara v. Lyons, 10 F.4th 19, 41 (1st Cir. 2021).

See Hernandez-Lara, 10 F.4th at 33 (“[L]imiting the use of detention to only those noncitizens who are dangerous or a flight risk may save the government, and therefore the public, from expending substantial resources on needless detention.”); Velasco Lopez, 978 F.3d at 855 (“When the Government incarcerates individuals it cannot show to be a poor bail risk for prolonged periods of time, as in this case, it separates families and removes the community breadwinners, caregiver…

Hernández-Lara v. Lyons, 10 F.4th 19, 41 (1st Cir. 2021).

See Hernandez-Lara v. Lyons, 10 F.4th 19, 39 (1st Cir. 2021) (“[T]he government must bear the burden of proving dangerousness or flight risk in order to continue detaining a noncitizen under section 1226(a)”); Velasco Lopez v. Decker, 978 F.3d 842 , 846 (2nd Cir. 2020) (finding that the “district court correctly ordered a new bond hearing where the Government bore the burden of proof”); Azalyar v. Raycraft, No. 1:25-cv-916, 2026 WL 30741 , at *5 (S.D.

See Hernandez-Lara v. Lyons, 10 F.4th 19, 39 (1st Cir. 2021) (“[T]he government must bear the burden of proving dangerousness or flight risk in order to continue detaining a noncitizen under section 1226(a)”); Velasco Lopez v. Decker, 978 F.3d 842 , 846 (2nd Cir. 2020) (finding that the “district court correctly ordered a new bond hearing where the Government bore the burden of proof”); Azalyar v. Raycraft, No. 1:25-cv-916, 2026 WL 30741 , at *5 (S.D.

The First Circuit has previously recognized that, although “removal proceedings have an end point,” the exact length of detention for those detained under Section 1226(a) “is impossible to predict and can be quite lengthy.” , 10 F.4th 19, 29 (1st Cir. 2021).

If they are arrested after having already entered the country, they are subject to detention under 10 We note that, applying First Circuit precedent, the court stated that the government may prove that an alien is a danger to the community by clear and convincing evidence, or that he is a flight risk by the lesser preponderance-of-the-evidence standard. , 804 F. Supp. 3d at 277 (citing , 10 F.4th 19, 41 (1st Cir. 2021)).

Because petitioner can be held, if at all, only under § 1226(a), he is entitled to a hearing at which the government must “either (1) prove by clear and convincing evidence that [the detainee] poses a danger to the community or (2) prove by a preponderance of the evidence that [he] poses a flight risk.” Hernandez-Lara v. Lyons, 10 F.4th 19, 41 (1st Cir. 2021); see also Jennings v. Rodriguez, 583 U.S. 281, 306 (2018) (explaining that federal regulation requires that § 1226(a)…

Minn. 2025) (citing Hernandez-Lara v. Lyons, 10 F.4th 19, 28 (1st Cir. 2021); Velasco Lopez v. Decker, 978 F.3d 842, 851 (2d Cir. 2020)).

If they are arrested after having already entered the country, they are subject to detention under 14 We note that, applying First Circuit precedent, the court stated that the government may prove that an alien is a danger to the community by clear and convincing evidence, or that he is a flight risk by the lesser preponderance-of-the-evidence standard. , 804 F. Supp. 3d at 277 (citing , 10 F.4th 19, 41 (1st Cir. 2021)).

Minn. 2025) (citing Hernandez-Lara v. Lyons, 10 F.4th 19, 28 (1st Cir. 2021); Velasco Lopez v. Decker, 978 F.3d 842, 851 (2d Cir. 2020)).

As the First Circuit has explained, Demore upheld the constitutionality of a mandatory detention procedure as “applie[d] to a class of noncitizens who had already been convicted (beyond a reasonable doubt) of committing certain serious crimes.” Id. (citing Hernandez-Lara v. Lyons, 10 F.4th 19, 35 (1st Cir. 2021) (emphasis added)).

Minn. 2025) (citing Hernandez-Lara v. Lyons, 10 F.4th 19, 28 (1st Cir. 2021); Velasco Lopez v. Decker, 978 F.3d 842, 851 (2d Cir. 2020)).

Minn. 2025) (citing Hernandez-Lara v. Lyons, 10 F.4th 19, 28 (1st Cir. 2021); Velasco Lopez v. Decker, 978 F.3d 842, 851 (2d Cir. 2020)).

Minn. 2025) (citing Hernandez-Lara v. Lyons, 10 F.4th 19, 28 (1st Cir. 2021); Velasco Lopez v. Decker, 978 F.3d 842, 851 (2d Cir. 2020)).

See Demore v. Kim, 538 U.S. 510, 516-17 (2003); Kong v. United States, 62 F.4th 608, 614 (1st Cir. 2023) (quoting Aguilar, 510 F.3d at 11); Hernandez-Lara v. Lyons, 10 F.4th 19, 33 (1st Cir. 2021).

Moreover, the government’s exercise of its power to detain immigrants pending removal ‘is subject to important constitutional limitations.’” Hernandez-Lara v. Lyons, 10 F.4th 19, 28 (1st Cir. 2021) (quoting Zadvydas, 533 U.S. at 695 ).

Minn. 2025) (citing Hernandez-Lara v. Lyons, 10 F.4th 19, 28 (1st Cir. 2021); Velasco Lopez v. Decker, 978 F.3d 842, 851 (2d Cir. 2020)).

Minn. 2025) (citing Hernandez-Lara v. Lyons, 10 F.4th 19, 28 (1st Cir. 2021); Velasco Lopez v. Decker, 978 F.3d 842, 851 (2d Cir. 2020)).

Minn. 2025) (citing Hernandez-Lara v. Lyons, 10 F.4th 19, 28 (1st Cir. 2021); Velasco Lopez v. Decker, 978 F.3d 842, 851 (2d Cir. 2020)).

Although a federal district court does not generally have subject-matter jurisdiction to review orders of removal issued by an immigration court, see generally 8 U.S.C. § 1252 , it does have habeas jurisdiction to review the lawfulness of immigration-related detention. 28 U.S.C. § 2241 (a); Hernandez-Lara v. Lyons, 10 F.4th 19, 33 (1st Cir. 2021).

See Hernandez-Lara, 10 F.4th at 41 (“[W]e hold that, in order to continue detaining [petitioner] under section 1226(a), due process requires the government to either (1) prove by clear and convincing evidence that she poses a danger to the community or (2) prove by a preponderance of the evidence that she poses a flight risk.”); Valdez v. Joyce, No. 25 Civ. 4627, 2025 WL 1707737 , at *4 (S.D.N.Y.