Appeal from the United States District Court for the Northern District of California D.C. No. 3:09-cv-03012-JSW
The opinion of the court was delivered by: Jeffrey S. White, District Judge, Presiding
Argued and Submitted October 4, 2010-Pasadena, California
Before: Susan P. Graber, Raymond C. Fisher and Jay S. Bybee, Circuit Judges.*fn1
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.
 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.
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).*fn2 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 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.
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 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.
 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 ...