IGOR V. BORBOT, Appellant
WARDEN HUDSON COUNTY CORRECTIONAL FACILITY
March 21, 2018
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.
Bertollini, Paul F. O'Reilly, Attorneys for Appellant.
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
HARDIMAN, CIRCUIT JUDGE.
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
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.
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).
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.
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.
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, ...