Darko v. Sessions

Eunice Darko, Petitionerv.Jeff Sessions, in his official capacity as Attorney General, U.S. Department of Justice; Kirstjen M. Nielsen, in her official capacity as Secretary, U.S. Department of Homeland Security; Thomas Decker, in his official capacity as Field Office Director, New York City Field Office, U.S. Immigration & Customs Enforcement; Diane McConnell, in her official capacity as Assistant Field Office Director, New York City Field Office, U.S. Immigration & Customs Enforcement; and Ronald Edwards, in his official capacity as Director, Hudson County Correctional Center, Respondents

OPINION AND ORDER  Eunice Darko, a citizen of Ghana, was detained pending potential removal pursuant to Title 8, United States Code, Section 1226(a). She was detained following an individualized bond hearing at which she bore the burden of proving that she was not a flight risk or a danger to the community. The bond hearing was presided over by an Immigration Judge (“IJ”), whose decision was affirmed by the Board of Immigration Appeals (“BIA”). Ms. Darko, who has no criminal convictions, has now been detained from March 18, 2018, to the present day. She brings the instant Petition pursuant to 28 U.S.C. §2241, challenging the constitutionality of her detention, and specifically, the requirement that she bear the burden of establishing her right to be released on bond. The question thus presented is whether the Due Process Clause of the Fifth Amendment required that the Government bear the burden of justifying her detention. Joining with a growing body of persuasive authority, the Court concludes that the Due Process Clause required that the Government bear the burden of proving that Ms. Darko’s detention was justified, and that it was required to meet its burden by clear and convincing evidence. Accordingly, Ms. Darko’s Petition is GRANTED. I. FACTUAL BACKGROUNDMs. Darko is a 43-year old citizen of Ghana. Doc. No. 1 (“Pet’n”)20. She entered the United States on June 11, 2011, on a nonimmigrant visa and overstayed the visa, remaining in the country ever since. Id. On September 23, 2015, she married Peter Amoako, a naturalized U.S. citizen who also was from Ghana. Id.