                                      PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               ___________

                    No. 17-2814
                    __________

                IGOR V. BORBOT,

                               Appellant

                         v.

 WARDEN HUDSON COUNTY CORRECTIONAL
             FACILITY
             __________

   On Appeal from the United States District Court
            for the District of New Jersey
               (D.C. No. 2:17-cv-04646)
      District Judge: Honorable Jose L. Linares
                     ___________

              Argued March 21, 2018
Before: SMITH, Chief Judge, HARDIMAN, and ROTH,
                  Circuit Judges.

              (Filed: October 16, 2018)
Simone Bertollini [Argued]
609 North Franklin Avenue, Suite 2120
Nutley, NJ 07110

Paul F. O’Reilly
450 Seventh Avenue, Suite 1408
New York, NY 10123
        Attorneys for Appellant

Chad A. Reader
William C. Peachey
Kathleen A. Connolly
Genevieve Kelly [Argued]
United States Department of Justice
Office of Immigration Litigation
450 5th Street, N.W.
Washington, D.C. 20001
       Attorneys for Appellee


                        ____________

                 OPINION OF THE COURT
                      ____________

HARDIMAN, Circuit Judge.

       Igor Borbot, a native and citizen of Russia, has been
detained at the Hudson County Correctional Facility pending
removal proceedings since April 2016. Fourteen months after
he was denied release on bond, Borbot petitioned the United
States District Court for the District of New Jersey for a writ
of habeas corpus under 28 U.S.C. § 2241. Borbot alleged that
the Due Process Clause of the Fifth Amendment entitled him
to a new bond hearing at which the government would bear



                                  2
the burden of justifying his continued detention. The District
Court dismissed Borbot’s petition, and he filed this appeal.

                                I

        Borbot entered the United States in September 2014 on
a six-month tourist visa, which he overstayed. Nearly a year
later, an Interpol Red Notice requested by Russia identified
Borbot as a fugitive wanted for prosecution on criminal fraud
charges. On April 22, 2016, Immigration and Customs
Enforcement (ICE) detained Borbot under 8 U.S.C. § 1226(a)
and initiated removal proceedings, which are still pending in
immigration court in New York.

       Section 1226(a) provides that “[o]n a warrant issued
by the Attorney General, an alien may be arrested and
detained pending a decision on whether the alien is to be
removed from the United States.” 8 U.S.C. § 1226(a). The
relevant implementing regulations state that a detainee under
§ 1226(a) may be released on bond by ICE or by an
immigration judge (IJ) if the detainee “demonstrate[s] . . . that
such release would not pose a danger to property or persons,
and that [he] is likely to appear for any future proceeding.” 8
C.F.R. § 236.1(c)(8). If denied release at the initial bond
hearing, a § 1226(a) detainee may request a custody
redetermination hearing before an IJ. Id. § 236.1(d)(1). That
request will “be considered only upon a showing that the
alien’s circumstances have changed materially.” Id.
§ 1003.19(e). Both the initial bond determination and
subsequent custody decisions can be appealed to the Board of
Immigration Appeals (BIA). Id. § 236.1(d)(3).

      Shortly after his arrest, Borbot applied for release on
bond. An IJ denied his application after a hearing, finding that




                               3
Borbot failed to meet his “burden in establishing [that] he
does not pose a risk of danger to property.” App. 80 (citing
Matter of Urena, 25 I & N Dec. 140, 141 (BIA 2009)).
Borbot appealed the IJ’s decision to the BIA, arguing that the
IJ “gave too much weight to his pending criminal charges in
Russia” and that the charges were pretextual and “lodged in
retaliation for [Borbot’s] political opposition to . . . Vladimir
Putin.” App. 76. The BIA upheld the IJ’s decision, explaining
that “an alien in bond proceedings is not entitled to the benefit
of the doubt when it comes to evidence of potential
dangerousness.” Id. Borbot later requested a redetermination
hearing, which the IJ denied on April 13, 2017, finding that
there had been no material change in circumstances.

       About three months later, Borbot filed in the District
Court a petition for writ of habeas corpus under 28 U.S.C.
§ 2241, alleging that his continued detention deprived him of
due process unless the government could show “clear and
convincing evidence of risk of flight or danger to the
community.” App. 24 (citations omitted). On July 19, 2017,
nearly 15 months after Borbot’s arrest, the District Court
dismissed his petition as facially insufficient, concluding that
Borbot was not entitled to a new bond hearing unless he could
show that he was denied due process in his initial hearing,
which he did not attempt to do. Borbot timely appealed.1


       1
         The District Court also dismissed two other claims in
Borbot’s petition, one challenging the IJ’s weighing of
evidence and the other alleging that Borbot’s continued
detention prevented him from communicating with his
attorneys in Russia. Borbot does not appeal the dismissal of
those claims.




                               4
                               II

       The District Court had jurisdiction under 28 U.S.C.
§ 2241. We have jurisdiction under 28 U.S.C. § 1291.
Because the District Court dismissed Borbot’s petition
without holding an evidentiary hearing, our review is plenary.
See Fahy v. Horn, 516 F.3d 169, 179 (3d Cir. 2008); see also
Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003)
(reviewing de novo whether an alien’s due process rights
were violated).

                              III

        “[T]he Fifth Amendment entitles aliens to due process
of law in deportation proceedings.” Reno v. Flores, 507 U.S.
292, 306 (1993). The Supreme Court has repeatedly
recognized that “[i]n the exercise of its broad power over
naturalization and immigration, Congress regularly makes
rules that would be unacceptable if applied to citizens.”
Demore v. Kim, 538 U.S. 510, 521 (2003) (citation omitted).
At the same time, the Court has found limits on that power.
See, e.g., Zadvydas v. Davis, 533 U.S. 678, 690 (2001)
(concluding that “[a] statute permitting indefinite detention of
an alien would raise a serious constitutional problem”).

       The duration of Borbot’s detention is the sole basis for
his due process challenge. According to Borbot, the
government cannot constitutionally detain him “for over a
year, or indefinitely[,] without having to prove
dangerousness.” Borbot Br. 3. He acknowledges that—as
mandated by Congress and the Department of Homeland
Security—he has received a bond hearing and an opportunity
to request a redetermination hearing based on changed
circumstances. He does not challenge the adequacy of his




                               5
initial bond hearing. Nor does he allege unreasonable delay
by the government. Indeed, the conclusion of his removal
proceedings—and accordingly the end of his detention—
appears to be forthcoming.2 Rather, he argues that by the time
the IJ denied his request for a redetermination hearing, about
a year into his detention, he was entitled to a second bond
hearing, this time with the government bearing the burden of
proof. But Borbot cites no authority, and we can find none, to
suggest that duration alone can sustain a due process
challenge by a detainee who has been afforded the process
contemplated by § 1226(a) and its implementing regulations.3


      2
        As Borbot’s counsel noted during oral argument, the
immigration court has already held two merits hearings in his
removal case.
      3
        Borbot’s bond hearing and the lack of any allegation
of unreasonable government delay distinguish his detention
from the situation contemplated by Justice Kennedy in his
concurring opinion in Demore, on which Borbot relies. In that
case, the Supreme Court upheld the constitutionality of
mandatory detention without a bond hearing under 8 U.S.C.
§ 1226(c). Justice Kennedy understood the Supreme Court’s
opinion to be consistent with the proposition that due process
“could” entitle an alien detainee to “an individualized
determination as to his risk of flight and dangerousness if the
continued detention became unreasonable or unjustified.”
Demore, 538 U.S. at 532 (Kennedy, J., concurring). In the
event of “unreasonable delay” by the government, Justice
Kennedy wrote, “it could become necessary . . . to inquire
whether the detention is not to facilitate deportation, or to
protect against risk of flight or dangerousness, but to
incarcerate for other reasons.” Id. at 532–33. Borbot does not



                              6
        Instead, Borbot draws an analogy between his
detention and mandatory detention under 8 U.S.C. § 1226(c).
In particular, he relies on two cases in which this Court held
that aliens detained under § 1226(c) were entitled to a bond
hearing if their detention became unreasonably long: Diop v.
ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011) and Chavez-
Alvarez v. Warden York Cty. Prison, 783 F.3d 469 (3d Cir.
2015). Because of the differences between mandatory
detention under § 1226(c) and detention under § 1226(a),
however, Borbot’s analogy is inapt.

        In contrast to the bond hearing and subsequent process
afforded to § 1226(a) detainees like Borbot, Congress in
§ 1226(c) defined certain categories of aliens for whom
detention is mandatory and release is authorized only in
narrow circumstances. Under § 1226(c), “[t]he Attorney
General shall take into custody any alien” who is inadmissible
or deportable on the basis of enumerated categories of crimes
and terrorist activities. 8 U.S.C. § 1226(c)(1). By its terms,
§ 1226(c) does not entitle detainees to a bond hearing.
Release is authorized “only if the Attorney General
decides . . . that release of the alien from custody is
necessary” for witness-protection purposes “and 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).



attempt to show unreasonable delay, and unlike the petitioner
in Demore, he has received an individualized determination
as to the necessity of his detention.




                              7
        In Diop, we considered whether a petitioner was
entitled to a bond hearing nearly three years into his detention
under § 1226(c). 656 F.3d at 223–26. We held that he was,
notwithstanding that provision’s lack of any such
requirement. “[W]hen detention becomes unreasonable,” we
reasoned, “the Due Process Clause demands a hearing, at
which the Government bears the burden of proving that
continued detention is necessary to fulfill the purposes of the
detention statute.” Id. at 233. We noted that in rejecting a due
process challenge by a § 1226(c) detainee in Demore, the
Supreme Court emphasized that “mandatory detention
pursuant to § 1226(c) lasts only for a ‘very limited time’ in
the vast majority of cases,” and concluded that the result in
that case “may well have been different” if the petitioner’s
detention had been “significantly longer than the average.”
Diop, 656 F.3d at 233–34 (quoting Demore, 538 U.S. at 529
& n.12). We therefore interpreted § 1226(c) to “contain[] an
implicit limitation of reasonableness: the statute authorizes
only mandatory detention that is reasonable in length.” Id. at
235. Beyond that point—which can be determined only by a
“fact-dependent inquiry,” id. at 233—the statute “yields to the
constitutional requirement that there be a further,
individualized, inquiry into whether continued detention is
necessary to carry out the statute’s purpose,” id. at 235. Our
interpretation of § 1226(c) relied in part on Zadvydas, in
which the Supreme Court “read an implicit limitation into” 8
U.S.C. § 1231(a)(6)—which governs detention of aliens who
have already been ordered removed—so that it “d[id] not
permit indefinite detention.” 533 U.S. at 689.

       We applied Diop’s reasonableness requirement in
Chavez-Alvarez. There, we held that because the petitioner’s
year-long detention under § 1226(c) had become




                               8
unreasonable, he was entitled to a bond hearing where the
government would bear the burden of “produc[ing]
individualized evidence that Chavez–Alvarez’s continued
detention was or is necessary.” Chavez-Alvarez, 783 F.3d at
474, 478. As in Diop, that conclusion resulted from our “use
of a balancing framework [that] makes any determination on
reasonableness highly fact-specific.” Id. at 474.

        The Supreme Court recently overruled Diop’s
interpretation of 8 U.S.C. § 1226(c). In Jennings v.
Rodriguez, 138 S. Ct. 830 (2018), the Court rejected our
conclusion that § 1226(c) contains an implicit reasonableness
limitation. Id. at 846–47. The Court noted that in Demore, it
distinguished § 1226(c) from § 1231(a)(6) (the statute at issue
in Zadvydas). Jennings, 138 S. Ct. at 846. While detention
under § 1231(a)(6) lacks a “definite termination point,”
§ 1226(c) authorizes detention only until the conclusion of
removal proceedings. Id. (quoting Demore, 538 U.S. at 529).
The Court held in Jennings that “§ 1226(c) mandates
detention of any alien falling within its scope and that
detention may end prior to the conclusion of removal
proceedings only if the alien is released for witness-protection
purposes.” Id. at 847 (emphasis added) (internal quotation
marks omitted). Jennings did not, however, address the
constitutionality of § 1226(c), instead remanding to the Ninth
Circuit to decide that question in the first instance. Id. at 851.
Accordingly, Jennings did not call into question our
constitutional holding in Diop that detention under § 1226(c)
may violate due process if unreasonably long.

       Contrary to Borbot’s suggestion, however, the
reasonableness inquiry we performed in Diop and Chavez-
Alvarez is inappropriate in the context of § 1226(a). We held
in those cases that due process entitles § 1226(c) detainees to



                                9
a bond hearing at some point, with the exact time varying
with the facts of the case. As noted, however, Borbot was
afforded a prompt bond hearing, as required by § 1226(a) and
its implementing regulations. He appealed the rejection of his
application for release to the BIA and was given an
opportunity to obtain a redetermination hearing if he could
show materially changed circumstances. Unlike § 1226(c)
detainees such as Diop and Chavez-Alvarez, who were
detained for prolonged periods without being given any
opportunity to apply for release on bond, Borbot was granted
meaningful process prior to filing his habeas petition.4


      4
         Borbot notes that in Diop, we read Justice Kennedy’s
concurrence in Demore to suggest that “even if an alien is
given an initial hearing, his detention might still violate the
Due Process Clause” if it becomes unreasonably long. 656
F.3d at 232. The “initial hearing” at issue in those § 1226(c)
cases, however, was not a bond hearing, but rather the Joseph
hearing at which § 1226(c) detainees are permitted to
demonstrate that they are not subject to mandatory detention.
See Diop, 656 F.3d at 232; see also Demore, 538 U.S. at 532
(Kennedy, J., concurring) (citing Matter of Joseph, 22 I. & N.
Dec. 799 (BIA 1999)). Justice Kennedy’s suggestion that
there may be due process limits on detention under § 1226(c)
even after a Joseph hearing does not apply to § 1226(a)
detentions following a bond hearing. Whereas a Joseph
hearing is unrelated to the detention itself—it is limited to
whether § 1226(c) applies at all, see Matter of Joseph, 22 I. &
N. Dec. at 800—the bond hearing Borbot received and the
IJ’s consideration of his request for a redetermination hearing
were expressly for the purpose of determining whether his
continued detention was necessary.




                              10
        Borbot complains that he has borne the burden of
proof throughout his detention. The burden must eventually
shift to the government, he argues, regardless of the process
he was initially afforded under § 1226(a). Borbot is correct to
point out that Diop places the burden of proof on the
government in § 1226(c) cases, whereas under § 1226(a) the
burden remains on the detainee at all times. But we perceive
no problem with this distinction. Borbot claims the
government could avoid ever bearing the burden of proof by
“simply detain[ing] criminal aliens” pursuant to § 1226(a)
even though they are subject to mandatory detention under
§ 1226(c). Borbot Br. 10. We do not share this concern,
because § 1226 affords the government no such discretion.
See 8 U.S.C. § 1226(c) (providing that “[t]he Attorney
General shall take into custody any alien” who falls under
certain enumerated categories (emphasis added)). Nor does
the distinction run afoul of the Equal Protection Clause, as
Borbot suggests, because § 1226(a) detainees are not situated
similarly to § 1226(c) detainees, much less to § 1226(c)
detainees who have been detained for years without any
opportunity to show why they should be released.

       The distinction we draw today between § 1226(a) and
§ 1226(c) detainees is further supported by the statutory
scheme applicable to removal. Section 1226(e) provides that
“[t]he Attorney General’s discretionary judgment regarding
[bond hearings for aliens in removal proceedings] shall not be
subject to review” and that “[n]o 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.” 8 U.S.C. § 1226(e).
Because Borbot does not challenge a particular action or
decision, but rather “the statutory framework that permits his




                              11
detention without bail,” Demore, 538 U.S. at 517, § 1226(e)
does not deprive the District Court or this Court of
jurisdiction over Borbot’s petition. But unlike the § 1226(c)
context, in which a habeas petition seeks to compel a bond
hearing where there has been none, Borbot’s habeas petition
seeks to compel a second bond hearing despite alleging no
constitutional defect in the one he received. This comes close
to asking this Court to directly review the IJ’s bond decision,
a task Congress has expressly forbidden us from
undertaking.5

       We recognize Borbot’s concern that, despite an initial
bond hearing, detention under § 1226(a) might become
unreasonably prolonged, whether by virtue of government
delay or some other cause. But Borbot fails to identify a basis
in the record to demonstrate that this is such a case. We
therefore need not decide when, if ever, the Due Process
Clause might entitle an alien detained under § 1226(a) to a




       5
         Although Borbot’s argument is constitutional rather
than statutory, we note that the Supreme Court in Jennings
rejected an interpretation of § 1226(a) that included implicit
time limits and a shifting burden of proof. See 138 S. Ct. at
847–48 (“Nothing in § 1226(a)’s text—which says only that
the Attorney General ‘may release’ the alien ‘on . . . bond’—
even remotely supports the imposition of those requirements.
Nor does § 1226(a)’s text even hint that the length of
detention prior to a bond hearing must specifically be
considered in determining whether the alien should be
released.” (ellipsis in original)).




                              12
new bond hearing in order to conclude that Borbot’s due
process rights were not violated.6

                       *      *      *

      For the foregoing reasons, we will affirm the District
Court’s order.




      6
         By letter dated September 7, 2018, counsel for
Borbot advised this Court that as of July 20, 2018, Borbot “is
not subject to an INTERPOL Notice or diffusion.” Nothing in
this Opinion should be read to preclude Borbot from seeking
reconsideration from the agency based on these changed
circumstances.




                             13
ROTH, Senior Judge, dissenting:

        The judicial branch of our federal government should
be sheltered from the political maneuverings of foreign
nations. These matters are best left to the executive and
legislative branches. Nevertheless, there are occasions when
it becomes evident that the machinations of a foreign
government have, inadvertently to the courts, become
entangled in the judicial process.

       This case is an example of such a situation. It has
become clear that the Russian government has been
employing Interpol alerts or “Red Notices” to pursue and
harass opponents of the Russian regime. See, e.g., The
Atlantic, July 30, 2018; The Atlantic, May 30, 2018; The New
York Times, November 6, 2016; The Globe and Mail,
September 25, 2015. A member country of Interpol, such as
Russia, can request that Interpol issue an arrest warrant to aid
in capturing a fugitive. Interpol will then issue a Red Notice
and, on the basis of that notice, the fugitive can be arrested by
the authorities in another member country where the fugitive
may be located. This is designed to be an important tool in
fighting crime. It is a tool, however, that has been
misappropriated by the Russian government to punish
political opponents who travel abroad.

       Opponents of the present Russian regime have been
arrested in countries around the world on the basis of a Red
Notice. They then have had extreme difficulty in convincing
the authorities of the arresting countries that they are not
criminals but are being pursued by the Russian government
for political reasons.




                               1
       The petitioner here claims that he is not a criminal. He
has no criminal record anywhere. He was arrested by ICE for
overstaying his visa. Then, on the basis of an Interpol Red
Notice, requested by Russia, he has been held in custody
since April 22, 2016, on the ground that he is a danger to the
community. The reason for being classified as a danger is the
Red Notice, nothing else. We have just learned that as of July
28, 2018, Interpol withdrew the Red Notice on Borbot.
Nevertheless, Borbot remains in custody at least until there is
a new ruling on danger to the community by the BIA.

       To obtain the Red Notice, Russia charged Borbot with
fraud. Borbot has demonstrated that the “fraud,” an alleged
overcharging on a shipyard construction contract, was
baseless and politically motivated. He has applied for
political asylum. Moreover, there was a civil suit brought
against Borbot in a Russian court on the basis of the same
shipyard overcharges. The suit was dismissed as groundless
and the dismissal was affirmed.

       It is contrary to my concept of justice to hold in
custody an individual who is the innocent victim of a rogue
foreign government. For that reason, I would recommend
that a new hearing be held by the IJ to review the finding of
“danger to the community.” Such a review is necessary to
prevent a foreign government from improperly influencing
our immigration courts.




                              2
