                                                                      FILED
                            FOR PUBLICATION                           MAR 31 2011

                                                                   MOLLY C. DWYER, CLERK
                  UNITED STATES COURT OF APPEALS                    U.S. COURT OF APPEALS



                          FOR THE NINTH CIRCUIT


VIJENDRA KUMAR SINGH, an                      No. 10-15715
individual,
                                              D.C. No. 3:09-cv-03012-JSW
            Petitioner - Appellant,

      v.                                      OPINION

ERIC H. HOLDER, JR., in his official
capacity as Attorney General of the United
States; JANET NAPOLITANO, in her
official capacity as Secretary of the
Department of Homeland Security;
TIMOTHY AITKEN, in his official
capacity as San Francisco Field Office
Director of US Immigration and Customs
Enforcement, Detention and Removal; and
DONNY YOUNGBLOOD, in his official
capacity as Sheriff of Kern County
Sheriff’s Department and Lerdo Detention
Facility,

            Respondents - Appellees.

                  Appeal from the United States District Court
                     for the Northern District of California
                   Jeffrey S. White, District Judge, Presiding

                    Argued and Submitted October 4, 2010
                            Pasadena, California

                             Filed March 31, 2011
Before: Susan P. Graber, Raymond C. Fisher and Jay S. Bybee, Circuit Judges.1

                              Opinion by Judge Fisher

RAYMOND C. FISHER, Circuit Judge:

      In Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th

Cir. 2008), we held that aliens facing prolonged detention while their petitions for

review of their removal orders are pending are entitled to a bond hearing before a

neutral immigration judge. In this appeal we address certain procedures that must

be followed in those hearings to comport with due process. We hold as an initial

matter that a federal district court has habeas jurisdiction under 28 U.S.C. § 2241

to review Casas bond hearing determinations for constitutional claims and legal

error. See Demore v. Kim, 538 U.S. 510, 516-17 (2003). We also hold that, given

the substantial liberty interests at stake in Casas hearings, the government must

prove by clear and convincing evidence that continued detention is justified. We

further hold that the immigration court is required to make a contemporaneous

record of Casas hearings and that an audio recording would suffice.




      1
         Judge Susan P. Graber was drawn to replace Judge Cynthia Holcomb Hall,
now deceased. Judge Graber has read the briefs, reviewed the record and listened
to the tape of oral argument held on October 4, 2010.
                                         2
Background




    3
      Vijendra Singh is a native and citizen of Fiji who was admitted to the United

States in 1979 on a visitor visa. He became a lawful permanent resident in 1981.

He has been married to Babita Singh, who is also a U.S. resident, since 1985, and

they have five children, all of whom are U.S. citizens. In April 2007, the

Department of Homeland Security (DHS) Immigration and Customs Enforcement

(ICE) issued Singh a Notice to Appear (NTA), charging that he was removable

because he had been convicted of receiving stolen property in 2006 and petty theft

with priors in 2005. Singh was taken into ICE custody without bond on April 10,

2007, and has remained in continuous custody from that time until the present.

      In September 2007, the immigration judge (IJ) concluded that Singh was

ineligible for cancellation of removal because he had committed an aggravated

felony within the meaning of 8 U.S.C. § 1101(a)(43)(G).2 Singh appealed to the

Board of Immigration Appeals (BIA), which affirmed the removal order in March

2008. He then filed a petition for review of the final administrative order of

removal with this court in August 2008, docketed as No. 08-71682. We stayed the




      2
        On September 27, 2007, ICE amended the NTA to add the charge that
Singh was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because he had been
convicted of an aggravated felony. This charge was premised on Singh’s 2003
conviction for receiving stolen property, which Singh unsuccessfully argued did
not qualify as an aggravated felony.
                                          4
order of removal on August 13, 2008, pending our resolution of the petition.

Those proceedings are ongoing and the stay remains in place.

      In September 2008, Singh received his first Casas bond hearing before an

immigration judge. Before the hearing began, the government agreed that Singh’s

wife would not be cross-examined. Despite this stipulation, the IJ allowed the

government to cross-examine Mrs. Singh after Singh completed his own

testimony. After the close of direct and cross-examination, the IJ also permitted

the government to introduce as evidence Singh’s Record of Arrest and Prosecution

(RAP) sheet. Singh complains that he did not have an opportunity to explain or

rebut the evidence presented in his RAP sheet or his wife’s cross-examination

because both were admitted after the conclusion of his testimony.

      When the bond hearing was near its end, the IJ incorrectly stated that Singh

bore the burden of proving he was not a flight risk or a danger to the community.

Singh immediately objected and informed the IJ that the government bore the

burden of proof, and the IJ acknowledged the error. At the conclusion of the

hearing, the IJ found that Singh was not a flight risk, a point the government had

not disputed. The IJ did, however, find that Singh was a danger to the community

and, accordingly, denied Singh’s request for release on bond.




                                         5
      In October 2008, the IJ issued a written decision denying Singh bond.

Apparently contradicting his oral finding at the September hearing, the IJ

concluded that Singh was a flight risk as well as a danger to the community

because of his criminal history, his history of failures to appear and the fact that he

was under an administratively final order of removal.

      Singh appealed to the BIA. He moved to obtain a transcript of the Casas

bond hearing to support his appeal, in which he raised various due process

violations he contended occurred during the hearing. The BIA denied Singh’s

motion, and ultimately dismissed his appeal, concluding that he was both a danger

to the community “given his extensive criminal record,” and a flight risk given that

he was subject to a final administrative order of removal.

      In July 2009, Singh filed a petition for a writ of habeas corpus alleging

various procedural and substantive due process violations at his Casas bond

hearing. The district court denied Singh’s petition in February 2010, concluding

that it lacked authority to review the IJ’s discretionary decision to deny bond and

that Singh’s allegations of procedural and substantive due process violations were

without merit. The court concluded that “Petitioner’s procedural due process

rights, as afforded to him by Casas-Castrillon and Prieto-Romero [v. Clark, 534

F.3d 1053 (9th Cir. 2008)], were satisfied because Petitioner received an


                                           6
individualized bond hearing before a neutral IJ.” We disagree with the district

court’s conclusion that this is all that Casas-Castrillon and Prieto-Romero require.

Accordingly, we vacate the dismissal of Singh’s habeas petition and remand to the

district court with instructions to grant the writ and order Singh’s release unless

within 45 days of the district court’s order the agency provides Singh a new Casas

hearing applying the standards set forth in this opinion.

                                     Jurisdiction

      We have jurisdiction over Singh’s appeal under 28 U.S.C. §§ 1291 and

2253(a). See Arango Marquez v. INS, 346 F.3d 892, 897 (9th Cir. 2003). Our

jurisdiction is consistent with 8 U.S.C. § 1226(e), which provides:

      The Attorney General’s discretionary judgment regarding the application
      of this section shall not be subject to review. No court may set aside any
      action or decision by the Attorney General under this section regarding
      the detention or release of any alien or the grant, revocation, or denial of
      bond or parole.

Although § 1226(e) restricts jurisdiction in the federal courts in some respects, it

does not limit habeas jurisdiction over constitutional claims or questions of law.

      The Supreme Court held in Demore that § 1226(e) does not strip a district

court of its traditional habeas jurisdiction, “bar constitutional challenge[s]” or

preclude a district court from addressing a habeas petition “challeng[ing] the

statutory framework that permits [the petitioner’s] detention without bail.” 538


                                           7
U.S. at 516-17; see also Al-Siddiqi v. Achim, 531 F.3d 490, 494 (7th Cir. 2008)

(holding that § 1226(e) “does not deprive us of our authority to review statutory

and constitutional challenges”); Saint Fort v. Ashcroft, 329 F.3d 191, 200 (1st Cir.

2003) (noting that Demore “read the jurisdiction-limiting provision in § 1226(e) as

applying only to review of the Attorney General’s discretionary judgment”); Sierra

v. INS, 258 F.3d 1213, 1217-18 (10th Cir. 2001) (holding, before Demore was

decided, that “§ 1226(e) does not ‘speak[ ] with sufficient clarity to bar jurisdiction

pursuant to the general habeas statute’” (alterations in original) (quoting INS v. St.

Cyr, 533 U.S. 289, 313 (2001))). In addition, although the Attorney General’s

“discretionary judgment . . . shall not be subject to review,” claims that the

discretionary process itself was constitutionally flawed are “cognizable in federal

court on habeas because they fit comfortably within the scope of § 2241.”

Gutierrez-Chavez v. INS, 298 F.3d 824, 829 (9th Cir. 2002).

      The conclusion that the district court had habeas jurisdiction to review

Singh’s claims of constitutional and legal error is also consistent with 8 U.S.C.

§ 1252(a)(2)(B)(ii). Like § 1226(e), § 1252(a)(2)(B)(ii) restricts jurisdiction only

with respect to the executive’s exercise of discretion. It does not limit habeas

jurisdiction over questions of law, see Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th

Cir. 2006), overruled on other grounds by Estrada-Espinoza v. Mukasey, 546 F.3d


                                           8
1147 (9th Cir. 2008) (en banc), including “application of law to undisputed facts,

sometimes referred to as mixed questions of law and fact,” Ramadan v. Gonzales,

479 F.3d 646, 648 (9th Cir. 2007) (per curiam).

                                Standard of Review

      We review de novo the district court’s decision to grant or deny a § 2241

petition for a writ of habeas corpus. See Nadarajah v. Gonzales, 443 F.3d 1069,

1075 (9th Cir. 2006). We also review de novo due process claims and questions of

law raised in immigration proceedings. See Simeonov v. Ashcroft, 371 F.3d 532,

535 (9th Cir. 2004). The district court’s findings of fact are reviewed for clear

error. See Jones v. Wood, 207 F.3d 557, 559 (9th Cir. 2000).

                                     Discussion

                        I. Burden and Standard of Proof

                  A. The Immigration Judge Properly Placed
                    the Burden of Proof on the Government

      The first issue is whether the immigration judge properly allocated the

burden of proof. As we held in Casas-Castrillon, the burden of establishing

whether detention is justified falls on the government. See Casas-Castrillon, 535

F.3d at 951 (“[A]n alien is entitled to release on bond unless the ‘government

establishes that he is a flight risk or will be a danger to the community.’” (emphasis

added) (quoting Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005))). Singh
                                          9
contends that the IJ failed to adhere to this principle by improperly placing the

burden on him to show that he was neither a danger nor a flight risk. We disagree.

Although the IJ initially stated that Singh bore the burden of proof, Singh objected

and the IJ immediately acknowledged the error. The IJ’s written bond

memorandum also reflects the proper allocation of the burden of proof to the

government. We therefore reject Singh’s argument.

   B. The Applicable Standard of Proof is Clear and Convincing Evidence

      Neither Casas-Castrillon nor any other Ninth Circuit, statutory or regulatory

authority specifies the appropriate standard of proof at a Casas bond hearing.

Singh argues that the government should be held to a clear and convincing

evidence standard of proof.3 Given the substantial liberty interest at stake – Singh,

      3
        The government points out that Singh did not raise this argument before
the BIA, and therefore has not administratively exhausted the claim, but the
government does not request that we decline to address the issue. The district
court made no mention of an exhaustion problem in its decision. On habeas review
under § 2241, exhaustion is a prudential rather than jurisdictional requirement. See
Arango Marquez, 346 F.3d at 897; see also Acevedo-Carranza v. Ashcroft, 371
F.3d 539, 541 (9th Cir. 2004). We exercise our discretion to waive the requirement
and reach the issue. First, a record of administrative appeal is not germane to the
purely legal question of what standard is most appropriate for such hearings.
Second, relaxation of the requirement in this case will not encourage future habeas
petitioners to attempt to bypass the administrative scheme because, once the
standard has been set, this issue should cease to arise. Third, administrative review
would not preclude the need for judicial review, because litigants would
undoubtedly seek this court’s determination of whether whatever standard the
agency set was correct. See Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007)
(discussing the factors courts consider when determining whether to require
                                          10
for example, has been detained for nearly four years – we hold that the government

must prove by clear and convincing evidence that an alien is a flight risk or a

danger to the community to justify denial of bond at a Casas hearing.

      As we said in Casas-Castrillon, even where prolonged detention is

permissible, “due process requires ‘adequate procedural protections’ to ensure that

the government’s asserted justification for physical confinement ‘outweighs the

individual’s constitutionally protected interest in avoiding physical restraint.’” 535

F.3d at 950 (quoting Zadvydas v. Davis, 533 U.S. 678, 690 (2001)). Because it is

improper to ask the individual to “share equally with society the risk of error when

the possible injury to the individual” – deprivation of liberty – is so significant, a

clear and convincing evidence standard of proof provides the appropriate level of

procedural protection. Addington v. Texas, 441 U.S. 418, 427 (1979); see also

Tijani, 430 F.3d at 1244 (Tashima, J., concurring) (explaining that, under

Addington, the primary function of a standard of proof is to properly “allocate the

risk of an erroneous decision among litigants based upon the competing rights and

interests involved”).




prudential exhaustion). Given these circumstances, and given that Singh has
already been detained for nearly four years, we conclude that the interests of justice
favor waiver.
                                         11
      The Supreme Court has repeatedly reaffirmed the principle that “due process

places a heightened burden of proof on the State in civil proceedings in which the

‘individual interests at stake . . . are both particularly important and more

substantial than mere loss of money.’” Cooper v. Oklahoma, 517 U.S. 348, 363

(1996) (alterations in original) (quoting Santosky v. Kramer, 455 U.S. 745, 756

(1982)); see also Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (requiring clear and

convincing evidence to justify civil commitment because “[f]reedom from bodily

restraint has always been at the core of the liberty protected by the Due Process

Clause”); Woodby v. INS, 385 U.S. 276, 285 (1966) (requiring “clear, unequivocal,

and convincing” evidence to prove deportability); Chaunt v. United States, 364

U.S. 350, 353 (1960) (requiring “clear, unequivocal, and convincing” evidence to

set aside a naturalization decree (internal quotation marks omitted)). For detainees

like Singh, who face years of detention before resolution of their removability, the

individual interest at stake is without doubt “particularly important and more

substantial than mere loss of money,” and therefore a heightened standard of proof

is warranted. Santosky, 455 U.S. at 756.

      We are not persuaded by the government’s argument that we should deviate

from this principle and apply the lower preponderance of the evidence standard

because the liberty interest at stake here is less than for people subject to an initial


                                           12
finding of removal or other types of civil commitment. First, the government

argues that its purpose for detaining people like Singh is distinguishable from other

sorts of civil commitment because removal is its ultimate goal. The Supreme

Court, however, “repeatedly has recognized that civil commitment for any purpose

constitutes a significant deprivation of liberty.” Addington, 441 U.S. at 425, 427

(emphasis added) (concluding that the individual’s interests were “of such weight

and gravity that due process requires the state to justify confinement by proof more

substantial than a mere preponderance of the evidence”).

      Second, the government argues that aliens like Singh should be treated

differently because they can end their detention by voluntarily electing to leave the

country. As the government conceded at oral argument, however, in some cases

aliens who do so will not be permitted to continue challenging their removability

from abroad. We are not persuaded that a lower standard of proof is justified by

putting people like Singh to the choice of remaining in detention, potentially for

years, or leaving the country and abandoning their challenges to removability even

though they may have been improperly deemed removable.

      Finally, the government argues that Singh’s liberty interest is diminished

because he has already been afforded a removal hearing. We considered an

analogous argument in Diouf v. Napolitano, --- F.3d ----, 2011 WL 768077 (9th


                                         13
Cir. 2011), which addressed whether § 1231(a)(6) detainees have a lesser liberty

interest in freedom from detention than § 1226(a) detainees because, “[u]nlike a

§ 1226(a) detainee, a § 1231(a)(6) detainee is subject to a final order of removal

and is thus, at least as a theoretical matter, closer to actual removal from the United

States.” Id. at *4. We concluded that “the government ma[de] too much of this

distinction” because “[r]egardless of the stage of the proceedings, the same

important interest is at stake – freedom from prolonged detention.” Id. We reach

the same conclusion here. Although “at the margin” Singh’s liberty interest may

be slightly less than that of someone subject to only an initial finding of removal,

fundamentally the same interest in freedom from prolonged detention is at stake.

Id.

      We therefore hold that the clear and convincing evidence standard of proof




                                          14
applies in Casas bond hearings.4 The IJ erred in not holding the government to

that heightened standard at Singh’s Casas hearing.

      We also conclude that this error was prejudicial. The evidence that Singh

was a danger and a flight risk was by no means overwhelming, so the standard of

proof could well have affected the outcome of the bond hearing. Significantly,

during the hearing the IJ orally announced his finding that Singh was not a flight

risk, and only later, in the written bond memorandum, found otherwise. Indeed,

the government never argued that Singh was a flight risk or presented any evidence

to that effect. Consequently, the only evidence the BIA cited for its affirmance of

the IJ’s conclusion that Singh was a flight risk was the fact – common to all

detainees afforded Casas bond hearings – that Singh had already




      4
          Statutes and regulations addressing similar issues also employ this
heightened standard of proof. For example, “the [government] has the burden of
establishing by clear and convincing evidence that, in the case of an alien who has
been admitted to the United States, the alien is deportable.” 8 U.S.C.
§ 1229a(c)(3)(A); see also Woodby, 385 U.S. at 285 (holding that the government
must prove deportability by “clear, unequivocal, and convincing” evidence).
Likewise, 8 C.F.R. § 1236.1(c)(3) establishes that when the burden of justifying
pre-removal detention has not yet been shifted to the government, criminal aliens
must establish by clear and convincing evidence that they are not a danger or flight
risk and are likely to appear for any scheduled proceeding. See also 8 U.S.C.
§ 1158(a)(2)(B) (providing that an alien must demonstrate by clear and convincing
evidence that his or her asylum application was filed within one year of the alien’s
arrival).
                                          15
been ordered removed by a final, administrative order, diminishing his incentive to

appear for further removal proceedings. Although this is a relevant factor in the

calculus, it alone does not constitute clear and convincing evidence that Singh

presented a flight risk justifying denial of bond.

      Next, the evidence showing that Singh presented a danger was equivocal. In

affirming the denial of bond, the BIA focused on Singh’s prior convictions for

petty theft, receiving stolen property and substance abuse. Under a clear and

convincing evidence standard, the BIA might conclude that Singh’s largely

nonviolent prior bad acts do not demonstrate a propensity for future

dangerousness, in view of evidence showing that his drug use, which was the

impetus for his previous offenses, has ceased.

      For these reasons, we cannot conclude that the clear and convincing

evidence standard we adopt today would not have affected the outcome of the bond

hearing. Accordingly, we remand this case to the district court with instructions to

grant the writ and order Singh’s release unless within 45 days of the district court’s

order the agency provides Singh a new Casas hearing applying the proper

standard.




                                          16
     II. The Standard of Dangerousness that Must Be Met to Deny Bond

           A. Casas-Castrillon and Matter of Guerra Contemplate that
          Criminal History Alone May Be Insufficient to Justify Detention

      In Prieto-Romero we explained that, to determine whether aliens like Singh

who are detained under § 1226(a) present a “flight risk or danger to the

community,” immigration judges “should . . . look[] to the factors set forth at

Matter of Guerra, [24 I. & N. Dec. 37, 40 (B.I.A. 2006)].” 534 F.3d at 1065-66.

The Guerra factor most pertinent to assessing dangerousness directs immigration

judges to consider “the alien’s criminal record, including the extensiveness of

criminal activity, the recency of such activity, and the seriousness of the offenses.”

Guerra, 24 I. & N. Dec. at 40.5

      5
          Guerra discusses nine factors that,
             Immigration Judges may look to . . . in determining
             whether an alien merits release from bond, as well as the
             amount of bond that is appropriate. These factors may
             include any or all of the following: (1) whether the alien
             has a fixed address in the United States; (2) the alien’s
             length of residence in the United States; (3) the alien’s
             family ties in the United States, and whether they may
             entitle the alien to reside permanently in the United States
             in the future; (4) the alien’s employment history; (5) the
             alien’s record of appearance in court; (6) the alien’s
             criminal record, including the extensiveness of criminal
             activity, the recency of such activity, and the seriousness of
             the offenses; (7) the alien’s history of immigration
             violations; (8) any attempts by the alien to flee prosecution
             or otherwise escape from authorities; and (9) the alien’s
             manner of entry to the United States.
                                           17
      Although an alien’s criminal record is surely relevant to a bond assessment,

Guerra contemplates that criminal history alone will not always be sufficient to

justify denial of bond on the basis of dangerousness. Rather, the recency and

severity of the offenses must be considered. See id. Casas-Castrillon likewise

recognized that not every criminal record would support a finding of

dangerousness. Every criminal alien who receives a Casas hearing has,

presumably, been convicted of at least one crime giving rise to the removal order.

Nevertheless, Casas-Castrillon required individualized bond hearings to ensure

that “the government’s purported interest” in securing the alien’s presence at

removal and protecting the community from danger “is actually served by

detention in [t]his case,” necessarily anticipating that criminal history alone would

not always justify detention. Casas-Castrillon, 535 F.3d at 949.

      Indeed, not all criminal convictions conclusively establish that an alien

presents a danger to the community, even where the crimes are serious enough to

render the alien removable. Cf. Foucha, 504 U.S. at 82-83 (requiring a showing of

dangerousness beyond that “of any convicted criminal” to justify civil detention of

the criminally insane). For example, some orders of removal may rest on

convictions for relatively minor, non-violent offenses such as petty theft and



24 I. & N. Dec. at 40.
                                         18
receiving stolen property. Moreover, a conviction could have occurred years ago,

and the alien could well have led an entirely law-abiding life since then. In such

cases, denial of bond on the basis of criminal history alone may not be warranted.

                   B. The Government Need Not Establish
               “Special Dangerousness” to Justify Denial of Bond

      Singh urges us to require the government to prove that a detainee is “a

specially dangerous person” to justify denial of bond. The government argues that

the Guerra standard is sufficient, and no heightened showing of dangerousness is

required. We are persuaded by the government’s argument.6 Although we

recognize that the “basic purpose” of immigration detention is “assuring the alien’s

presence at the moment of removal,” Zadvydas, 533 U.S. at 699, and “protecting

the community from dangerous aliens is a . . . secondary statutory purpose” more

typically addressed through criminal law, id. at 697, we disagree with Singh’s

argument that Zadvydas requires a heightened standard of “special dangerousness.”

      In deciding that special dangerousness is not required, we draw a distinction

between temporary and indefinite detention. Although the Supreme Court noted in


      6
       We are not persuaded by the government’s threshold argument that we
must sustain the district court’s determination that this question implicates the
immigration judge’s exercise of discretion, and is therefore unreviewable under
8 U.S.C. § 1226(e). The question of what standard of dangerousness the
government must meet presents a reviewable legal issue. See Afridi, 442 F.3d at
1218.
                                          19
Zadvydas that it has sanctioned “preventive detention based on dangerousness only

when limited to specially dangerous individuals,” Zadvydas held the confinement

at issue unconstitutional in large part because the detention was “not limited, but

potentially permanent.” Id. at 691. Regulations governing continued detention of

removable aliens are in accord, providing that an alien must be found “specially

dangerous” to permit prolonged post-final order detention “where there is no

significant likelihood of removal in the reasonably foreseeable future.” 8 C.F.R.

§ 1241.14(a) (emphasis added). Likewise, the Ninth Circuit cases Singh cites in

support of his argument for a special dangerousness standard address post-removal

period indefinite detentions. See, e.g., Tuan Thai v. Ashcroft, 366 F.3d 790, 792

(9th Cir. 2004); Kim Ho Ma v. Ashcroft, 257 F.3d 1095, 1102 (9th Cir. 2001).

Singh, however, does not allege that he is subject to indefinite detention like the

Zadvydas detainees who were experiencing “removable-but-unremovable limbo.”

Prieto-Romero, 534 F.3d at 1063. Unlike in Zadvydas, Singh does not contend

that the United States lacks a repatriation treaty with Fiji or that Fiji will refuse to

accept him. Accordingly, although Singh’s detention “lacks a certain end date,” it

is not “indefinite in the sense the Supreme Court found constitutionally

problematic in Zadvydas.” Id.




                                           20
      Zadvydas also focused on the minimal procedural protections afforded to the

detainees through administrative proceedings, noting that “the alien bears the

burden of proving he is not dangerous, without . . . significant later judicial

review.” 533 U.S. at 692. Here, by contrast, the government bears the burden of

proof, and must meet a clear and convincing evidence standard of proof. In

addition, we have said that there is jurisdiction for federal habeas courts to review

Casas bond determinations for constitutional claims and legal error. There are thus

far greater procedural protections in this context than there were in Zadvydas.

      Given that Singh’s detention is not indefinite and that procedural protections

are in place to safeguard his rights, we hold that due process does not require the

government to prove that he presents a “special danger” to justify denial of bond at

a Casas hearing.

                       III. The Government Must Provide
                   Contemporaneous Records of Casas Hearings

      In conjunction with his appeal of the denial of bond at his Casas hearing,

Singh asked the BIA to produce a transcript of the hearing. Five days later he

received a summary denial of his request. The BIA has long concluded that

“[t]here is no right to a transcript of a bond redetermination hearing.” Matter of

Chirinos, 16 I. & N. Dec. 276, 277 (B.I.A. 1977). Current procedures provide

instead that a written memorandum decision is prepared only if a detainee appeals
                                          21
the oral bond determination. See U.S. Dep’t of Justice, Exec. Office for Immig.

Rev., Immigration Court Practice Manual, § 9.3(e)(iii) & (vii) (2008). Singh

argues that this post hoc memorandum is inadequate, and that the absence of a

contemporaneous record deprived him of due process. In accordance with

Mathews v. Eldridge, 424 U.S. 319 (1976), we agree that due process requires a

contemporaneous record of Casas hearings and that the memorandum decision

presently provided is insufficient. We hold that, in lieu of providing a transcript,

the immigration court may record Casas hearings and make the audio recordings

available for appeal upon request. Although we determine that such audio

recordings satisfy due process, and are feasible for the government to provide, we

do not decide whether they are the only constitutionally adequate alternative to

transcripts.

      Evaluating the constitutional sufficiency of administrative procedures calls

for analysis of the governmental and private interests affected. See id. at 334.

      [T]he specific dictates of due process generally require[] consideration
      of three distinct factors: First, the private interest that will be affected by
      the official action; second, 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 finally, the
      Government’s interest, including the function involved and the fiscal and
      administrative burdens that the additional or substitute procedural
      requirement would entail.



                                            22
Id. at 335. The private interest here – freedom from prolonged detention – is

unquestionably substantial. It is also fundamentally affected by the BIA’s refusal

to provide transcripts or an adequate substitute. See Bergerco, U.S.A. v. Shipping

Corp. of India, 896 F.2d 1210, 1215 (9th Cir. 1990) (“[W]here a defendant makes

allegations of error which, if true, would be prejudicial, the unavailability of a

transcript may make it impossible for the appellate court to determine whether the

defendant’s substantive rights were affected.”).

      The memorandum decision provided under existing procedures is

insufficient for two reasons. First, it is not created contemporaneously with the

hearing. Post-hoc reconstruction is inadequate because, “once the court has

entered judgment, it may become subject to the very natural weight of its

conviction, tending to focus on that which supports its holding.” Id. at 1214.

Second, the memorandum decision is not the functional equivalent of a transcript.

Although a “‘record of sufficient completeness’ does not translate automatically

into a complete verbatim transcript,” alternatives are permissible only if they

constitute an “equivalent report of the events at trial from which the appellant’s

contentions arise.” Mayer v. City of Chicago, 404 U.S. 189, 194 (1971). The

potentially adequate substitutes the Supreme Court has suggested – “[a] statement

of facts agreed to by both sides, a full narrative statement based perhaps on the trial


                                          23
judge’s minutes taken during trial or on the court reporter’s untranscribed notes, or

a bystander’s bill of exceptions” – demonstrate the insufficiency of an after-the-

fact decision drafted by an immigration judge in the face of an impending appeal of

his or her decision. Id. (internal quotation marks omitted) (quoting Draper v.

Washington, 372 U.S. 487, 495 (1963)). The suggested adequate substitutes do,

however, demonstrate that an audio recording – a neutral contemporaneous record

of the hearing – would provide a “record of sufficient completeness.”

Accordingly, the first two Eldridge factors weigh heavily in favor of requiring a

neutral contemporaneous record of Casas hearings, and we conclude that audio

recordings would satisfy due process.

      The final Eldridge factor, which looks to the burden on the government, also

favors Singh. See Eldridge, 424 U.S. at 335. Although providing transcripts might

constitute a significant burden, the burden of tape recording hearings is much less

onerous and much less costly. Indeed, as counsel for the government readily

conceded, immigration courts, where bond hearings take place, already are

required to be equipped with recording devices and routinely record merits

hearings. See 8 C.F.R. § 1240.9 (requiring all merits hearings on removal and

relief to be recorded). Because the government has the appropriate equipment at

hand, tape recording bond hearings as well as merits hearings would present a


                                         24
minimal additional burden. Therefore, given the important liberty interest at stake,

the Eldridge factors dictate that the government must make available for appeal a

contemporaneous record of Casas bond hearings. In the absence of a transcript, an

audio recording would suffice.

      Accordingly, in this case Singh was denied due process. We agree,

however, with the district court’s conclusion that Singh has not demonstrated

prejudice. Although, generally speaking, a transcript or adequate substitute is

important for providing meaningful appellate review, Singh has not shown that a

recording or transcript would reveal any error that is not sufficiently apparent from

the IJ’s memorandum decision.

                            IV. Other Alleged Errors

      We reject Singh’s other claims of error. Singh argues that he suffered a due

process violation when the IJ permitted the government to cross-examine his wife

even though the parties had previously stipulated that her affidavit would be

submitted as true without cross-examination. We need not resolve this question

because Singh cannot demonstrate prejudice. See Prieto-Romero, 534 F.3d at 1066

(subjecting due process violations in immigration proceedings to harmless error

review). The government asked Mrs. Singh about two charges of domestic

violence that appeared on Singh’s criminal record, which was later admitted into


                                         25
evidence. Mrs. Singh testified that she had not brought the charges against her

husband, she was not afraid of him and she did not consider him a threat. Given

that the prejudicial information about the domestic violence charges was also

admitted from another source and, if anything, Mrs. Singh’s testimony on cross-

examination was otherwise helpful to Singh, he was not prejudiced.

      We also reject Singh’s argument that his due process rights were violated

when the IJ admitted his unauthenticated RAP sheet into evidence. The Federal

Rules of Evidence do not apply strictly in immigration removal proceedings. See,

e.g., Baliza v. INS, 709 F.2d 1231, 1233 (9th Cir. 1983) (holding that deportation

proceedings are “not . . . bound by strict rules of evidence”). As the BIA

acknowledged in its decision, bond hearings are particularly informal in nature.

See Joseph v. Holder, 600 F.3d 1235, 1242 (9th Cir. 2010); id. at 1248 (Graber, J.,

specially concurring). Furthermore, DHS regulations delineating the rules of

procedure for bond determinations in immigration court specify that an

immigration judge may rely “upon any information that is available to the

Immigration Judge or that is presented to him or her by the alien or the Service.”

8 C.F.R. § 1003.19(d). Requiring the parties to adhere strictly to the Federal Rules

of Evidence would run counter to this regulation and the informal nature of the

proceedings.


                                         26
      We reject Singh’s related argument that the Immigration and Nationality Act

prohibits admission of the unauthenticated RAP sheet because DHS regulations

provide that domestic official records “shall be evidenced by an official publication

thereof, or by a copy attested by the official having legal custody of the record or

by an authorized deputy.” 8 C.F.R. § 287.6(a). His argument fails because

§ 287.6(a) applies only to a “proceeding under this chapter,” which is Chapter I,

whereas § 1003.19, which governs bond hearings by immigration judges, is part of

Chapter V. Section 1003.41, which governs admissible evidence of criminal

convictions at proceedings before an immigration judge held under Chapter V,

provides that, in addition to records complying with § 287.6(a), a variety of other

specified documents may prove a criminal conviction, as well as “[a]ny other

evidence that reasonably indicates the existence of a criminal conviction.”

8 C.F.R. § 1003.41(d).

      We also conclude that Singh suffered no prejudice when the IJ admitted his

RAP sheet without giving him an opportunity to explain or rebut it. Even if this

could constitute a due process violation, there is no indication that any of the

information in the RAP sheet is false, or that Singh could have provided a

mitigating explanation for any of the incidents. On the contrary, the BIA




                                          27
considered Singh’s argument and found that even if there was error, it was

harmless because Singh’s criminal history was already in the record.

     V. Jurisdiction to Consider the Merits of Singh’s Petition for Review

      Singh also makes a substantive due process argument that the district court

should have “look[ed] to the underlying merits of Singh’s removal to determine if

he has raised a substantial argument that he is unremovable” and therefore entitled

to habeas relief. The district court held that it did not have jurisdiction to do so,

treating Singh’s argument as a “backdoor attempt to have this Court review the

underlying merits of Petitioner’s removal, which this Court cannot do [under the

REAL ID Act, Pub. L. No. 109-13, Div. B, 119 Stat. 231, 231 (2005)].”

      The REAL ID Act “expressly eliminated habeas review over all final orders

of removal,” A. Singh v. Gonzales, 499 F.3d 969, 977 (9th Cir. 2007), and provided

that a petition for review in the court of appeals is the “sole and exclusive means

for judicial review of an order of removal,” 8 U.S.C. § 1252(a)(5). Congress’

purpose in enacting the REAL ID Act was to “restor[e] judicial review ‘to its

former settled forum prior to 1996’” by eliminating suits in district courts and

funneling review of removal orders directly to the courts of appeals. A. Singh, 499

F.3d at 977 (quoting H.R. Rep. No. 109-72, at 174 (2005), reprinted in 2005

U.S.C.C.A.N. 240, 299). The REAL ID Act was thus intended to reinstate a


                                           28
system “abbreviat[ing] the process of judicial review,” id. at 975, by “effectively

limit[ing] all aliens to one bite of the apple with regard to challenging an order of

removal,” id. at 977 (internal quotation marks and emphasis omitted) (quoting

Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005)).

      Congress has clarified, however, that the REAL ID Act was not intended to

“preclude habeas review over challenges to detention that are independent of

challenges to removal orders.” H.R. Rep. No. 109-72, at 175. Accordingly, the

general rule is that “[e]ven post-[REAL ID Act], aliens may continue to bring

collateral legal challenges to the Attorney General’s detention authority . . .

through a petition for habeas corpus.” Casas-Castrillon, 535 F.3d at 946; see also

Nadarajah v. Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006) (holding that “the

jurisdiction-stripping provision [of the REAL ID Act] does not apply to federal

habeas corpus petitions that do not involve final orders of removal”). “We must be

careful to maintain the distinction Congress made in the REAL ID Act between

those challenges that [must be directed to the court of appeals in a petition for

review] and those that must be retained in and decided by the district court,” so as

not to unduly circumscribe district courts’ habeas jurisdiction. Nnadika v. Att’y

Gen. of U.S., 484 F.3d 626, 632 (3d Cir. 2007). We should also avoid the opposite

pitfall, however, and recognize the lack of jurisdiction where a habeas petition


                                          29
“directly implicate[s] the order of removal.” Id. (discussing Haider v. Gonzales,

438 F.3d 902 (8th Cir. 2006), as an example of such a case). The portion of

Singh’s habeas petition that asks us to consider the underlying merits of his

removal order presents an example of this exception to the rule.

      Although as a technical matter Singh’s habeas petition seeks relief from

immigration detention without asking the court to exercise jurisdiction over his

final order of removal, this portion of his habeas petition is wholly intertwined

with the merits of his removal order. Singh makes the same argument in his

habeas petition as he makes in his petition for review – that he is not removable

because his convictions do not qualify as aggravated felonies under 8 U.S.C.

§ 1101(a)(43)(G). See Haider, 438 F.3d at 910. Because this portion of his habeas

petition “does nothing more than attack the IJ’s removal order,” id., we lack

jurisdiction to review it other than on a petition for review.

      We emphasize, however, that determining when the REAL ID Act preempts

habeas jurisdiction requires a case-by-case inquiry turning on a practical analysis,

and that there are many circumstances in which an alien subject to an order of a

removal can properly challenge his immigration detention in a habeas petition

without unduly implicating the order of removal. For example, in Flores-Torres v.

Mukasey, 548 F.3d 708, 711 (9th Cir. 2008), we held that habeas jurisdiction


                                          30
existed to review a challenge to immigration detention based on the detainee’s

argument that he was actually a United States citizen and therefore could not

properly be held in custody under 8 U.S.C. § 1226(a), which applies only to

“alien[s].” Similarly, in Casas-Castrillon, we had jurisdiction to consider whether

it was constitutional to detain an alien subject to removal without an individualized

bond hearing evaluating his risk of flight or dangerousness. See 535 F.3d at 946.

And in A. Singh, we reasoned that there was jurisdiction to review a claim of

ineffective assistance of counsel for failure to timely petition for review because “a

successful habeas petition in this case will lead to nothing more than ‘a day in

court’ for Singh, which is consistent with Congressional intent underlying the

REAL ID Act.” 499 F.3d at 979.

      In each of these cases, the habeas challenge to detention had a basis

independent of the merits of the petition for review. Even where the bases for the

habeas petition and petition for review were related, as in Flores-Torres, the

detention challenge could stand alone. Here, by contrast, this portion of Singh’s

habeas challenge rests entirely on his assertion that he has presented a meritorious

argument in his petition for review. He explicitly asks the habeas court to evaluate

whether “the Government is unlikely to prevail in removal proceedings because

[he] has raised a substantial argument that he is not removable” in his pending


                                         31
petition for review. Singh therefore advocates for an odd system wherein the

district court would examine the arguments against removal that an alien expects to

present to this court in his petition for review, and potentially release him from

detention based on a prediction about what this court is likely to conclude when it

decides his pending petition for review.

      Such a scheme would contravene Congress’ express intention to limit review

of removal orders to “one day in the court of appeals.” A. Singh, 499 F.3d at 978

(internal quotation marks omitted) (quoting H.R. Rep. No. 109-72, at 175).

Indeed, were we to permit habeas review that “look[s] to the underlying removal

claim” as Singh requests, every alien petitioning for review of his removal order

could also petition for habeas review on this basis, arguing that his detention is

impermissible because he will raise a meritorious argument in his pending petition

for review, and his removal is therefore not reasonably foreseeable. This result

would severely undermine the streamlined system Congress sought to establish by

enacting the REAL ID Act. Although we are sympathetic to Singh’s desire for

judicial review at the earliest possible moment, the REAL ID Act dictates that such

review must take place in the proceedings related to his petition for review, rather

than in the present appeal.7 Whether or not this is the optimal system as a matter of

      7
      Singh mischaracterizes Nadarajah and Tijani when he suggests that they
demonstrate that a habeas court can properly consider whether he is likely to
                                        32
policy, it is consistent with the Suspension Clause because it provides a substitute

remedy offering the same scope of review as habeas. See Puri v. Gonzales, 464

F.3d 1038, 1041-42 (9th Cir. 2006) (citing Swain v. Pressley, 430 U.S. 372, 381

(1977) and INS v. St. Cyr, 533 U.S. 289, 314 n.38 (2001)).

                                     Conclusion

      The judgment of the district court is affirmed in part and vacated in part and

the matter is remanded to the district court with instructions to grant the writ and

order Singh’s release unless within 45 days of the district court’s order the agency

provides Singh a new Casas hearing applying the standards set forth in this

opinion.

      Costs on appeal are awarded to Singh.

      AFFIRMED IN PART, VACATED IN PART and REMANDED.




prevail in his pending petition for review. In Nadarajah, we held that the REAL
ID Act was inapplicable because there was not yet any final order of removal, and
the REAL ID Act applies to habeas petitions that “involve final orders of removal.”
443 F.3d at 1075-76. In Tijani, although we were troubled by the length of
detention prior to removal, rather than consider the merits of the underlying
removal order, we ordered a bond hearing of the sort Singh has already been
provided. See Tijani, 430 F.3d at 1242.
                                          33
                                      Counsel


     Holly S. Cooper, Kelly Martin and Scott Grzenczyk (argued), U.C. Davis
Immigration Law Clinic, Davis, California, for appellant.

       Joseph P. Russoniello, United States Attorney, Joann Swanson, Chief, Civil
Division, Ila C. Deiss, Assistant United States Attorney, San Francisco, California,
and William H. Orrick, III (argued), U.S. Department of Justice, Washington,
D.C., for appellee.

       Judy Rabinovitz, for amicus curiae ACLU Foundation Immigrant’s Rights
Project, New York, New York, Ahilan T. Arulanantham (argued), for amicus
curiae ACLU Foundation of Southern California, Los Angeles, California, and
Jayashri Srikantiah, for amicus curiae Stanford Law School Immigrants’ Rights
Clinic, Stanford, California.




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