Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Borbot v. Warden Hudson County Correctional Facility

United States Court of Appeals, Third Circuit

October 16, 2018

IGOR V. BORBOT, Appellant
v.
WARDEN HUDSON COUNTY CORRECTIONAL FACILITY

          Argued March 21, 2018

          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 Judge.

          Simone Bertollini, Paul F. O'Reilly, Attorneys for Appellant.

          Chad A. Reader William C. Peachey Kathleen A. Connolly Genevieve Kelly, United States Department of Justice Office of Immigration Litigation, Attorneys for Appellee.

          Before: SMITH, Chief Judge, HARDIMAN, and ROTH, Circuit Judges.

          OPINION

          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 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 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]

         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, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.