determination and recommendation was based on "Psychiatric information available at this time," the officer stated that Petitioner "is pending an in-depth analysis by a Psychiatrist at my request, specifically to attempt to determine if he provides a valid threat of violence to the community if he is released from Immigration Custody at this time" and should not be released until "he is determined through mental health examination to not provide a substantive threat to anyone upon his release." This recommendation was made on November 5, 2001 and adopted by the INS District Director on November 7, 2001. There is no indication in the records before the Court, that the recommended psychiatric evaluation to determine on-going dangerousness ever took place.
Petitioner contends that this determination was insufficient to uphold his potentially indefinite detention under Hendricks because 1) Officer Dickerson is not properly trained to make such mental health evaluations and 2) Petitioner's current medical and psychological documents indicated that he is "stable" and not a threat.
In analyzing this matter it is necessary to determine who bears the burden of proof regarding a detainee's dangerousness. While the INS regulations state that it is the detainee's burden to demonstrate to the Panel that if released he will pose no danger to the community, this only occurs after the District Director has made the initial determination that the detainee does pose such a danger. See 8 C.F.R. § 241.4 (d)(1), (c)(1). In Foucha v. Louisiana, 504 U.S. 71, 80-82 (1992) (internal citations omitted), the Supreme Court held that a state seeking to confine a mentally ill person must prove "by clear and convincing evidence that the individual is mentally ill and dangerous." In Hendricks, however, the Court indicated that a higher standard was required. The statute at issue in Hendricks required an initial determination by a court that there was "probable cause" to believe that the person could be defined as a "sexually violent predator." 521 U.S. at 352. If such cause was found, the person was transferred to a secure facility for "professional evaluation." Id. After this evaluation, a trial would be held to determine "beyond a reasonable doubt whether the individual was a sexually violent predator." Id. at 352-353.
While the Court in these cases was ostensibly determining the constitutional rights of "citizens" to be free from confinement, rather than "aliens" facing deportation, the Court in Zadvydas specifically referenced both of these cases in discussing the indefinite confinement of deportable aliens. Here Petitioner was not accorded a hearing for the determination as to whether he should continue to be detained as a mentally ill removable alien who is dangerous. Because the Court interprets Zadvydas as requiring such a hearing for the continued detention of removable aliens considered to be a danger to the community, the Court concludes that Petitioner's Constitutional due process rights were violated. Therefore, the INS must conduct an individualized hearing to determine if Petitioner currently poses a danger to the community sufficient enough to warrant his continued detention.
The parties have not briefed the issue of what type of hearing is appropriate to determine if Petitioner is a danger to the community, the appropriate burden of proof at such a hearing, or whether the INS already has a specific procedure in place for such a hearing. Therefore, the Court looks to Supreme Court precedence for guidance. In doing so the Court interprets Zadvydas as requiring that the government bear the burden of establishing by clear and convincing evidence that Petitioner poses a risk to the community sufficient to justify his continued detention. In Zadvydas, the Court specifically mentioned that in Salerno it upheld the detention procedure at issue there because, among other things, it contained a "requirement of proof of dangerousness by clear and convincing evidence." 533 U.S. at 691; Salerno at 750 ("In a full-blown adversary hearing, the Government must convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person."). The Court's citation to Foucha v. Louisiana is further support for the position that the burden of persuasion is on the government, not the petitioner. 533 U.S. at 691 (citing Foucha v. Louisiana, 504 U.S. 71, 81-83 (1992) (striking down insanity-related detention system that placed burden on detainee to prove nondangerousness)).
The Court in Zadvydas also highlighted the importance of avoiding "preventative detention . . . of potentially indefinite duration." 533 U.S. at 691. In order to prevent such constitutionally suspect "permanent" civil confinement, the Court required strong procedural protections. Id. (citing Salerno at 747 (noting positively that the "maximum length of pretrial detention is limited" by "stringent" requirements)). In order to prevent the statute at issue in Zadvydas from foundering in constitutionally troubling waters,*fn9 the Court found six months to be a presumptively reasonable period for post-removal order detentions. Id. at 701. By analogy; this Court finds that detentions based on danger to the community are presumptively valid only for a period of six months, after which a new evaluation needs to be made to continue detention. Therefore, if the INS continues to detain Petitioner based on his danger to the community, it must re-evaluate this decision at least every six months.
For the aforementioned reasons, the Petition for writ of habeas corpus [1-1] is GRANTED in part and DENIED in part. The INS is ordered to schedule a hearing within 30 days of this Order being stamped "filed" to determine if Petitioner currently poses a danger to the community if he were to be released. If the INS decides to continue the Petitioners detention on this basis, it shall review this decision at least every six months. The Court will hold a status conference on this matter on May 13, 2003, at 11:30 p.m.
IT IS SO ORDERED.