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In this opinion, the Ninth Circuit provided more details about the bond hearing required under Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008).  Casas-Castrillon provided for a bond hearing before an immigration judge for detained aliens while they petition for review of an administratively final order of removal.

Singh held DHS has the burden of proving by clear and convincing evidence that the alien is a flight risk or a danger to the community.  Casas-Castrillon had held DHS had the burden of justifying continued detention, but did not state the showing required.  Clear and convincing is a heightened standard appropriate to the interests at stake when a person is detained in civil proceedings for several years.

Singh also held that the agency must provide contemporaneous record of the bond proceedings, such as a audio recording.  Immigration judges typically do not record bond proceedings and instead just prepare a memorandum if the alien chooses to appeal.  The current practice severely impedes judicial review of errors or due process violations.  The court's decision recognizes this, while not imposing the additional burden of requiring a transcription of the proceedings.

Singh also noted that the mere existence of a criminal record is not enough to deny bond.  Instead, the alien must constitute a present danger to the community.  So, the adjudicator must consider the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses.

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In Diouf II, the U.S. Court of Appeals for the Ninth Circuit held that prolonged detention under 8 U.S.C. 1231(a)(6) raises serious constitutional concerns, which require additional procedural safeguards beyond those provided under the regulations. Section 1231(a)(6) authorizes detention of an alien subject to a removal order if the government is not able to physically remove the alien within the initial 90 days after the order becomes final.

Under the regulations, ICE officers periodically determine whether aliens subject to final removal orders should remain in detention or be released on bond or other conditions. Detention under this regime may continue for years.  ICE follows these procedures because the Supreme Court held in Zadvydas v. Davis, 533 U.S. 678 (2001) that the government could not indefinitely detain aliens subject to final removal orders, at least where removal is not reasonably foreseeable.

Diouf II, however, holds that the procedures adopted by ICE are not sufficient where the detention significantly exceeds six months.  It holds that an alien subject to final removal order must receive a bond hearing before a neutral immigration judge where removal is not imminent and the alien has been detained for six months. Further, it holds that the alien should receive bond unless ICE establishes to the satisfaction of the immigration judge that the alien is a flight risk or poses a danger to the community.

These are the same safeguards that the Ninth Circuit found necessary for aliens subject to prolonged detention under 8 U.S.C. 1226(a) (detention during direct challenge to a removal order).  See Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008).

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