FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VIJENDRA KUMAR SINGH, an 

individual,

Petitioner-Appellant,

v.

ERIC H. HOLDER JR., in his official

capacity as Attorney General of

the United States; JANET

NAPOLITANO, in her official No. 10-15715

capacity as Secretary of the

D.C. No. 3:09-cv- Department of Homeland Security; 

TIMOTHY AITKEN, in his official 03012-JSW

capacity as San Francisco Field OPINION

Office Director of US Immigration

and Customs Enforcement,

Detention and Removal; and

DONNY YOUNGBLOOD, in his official

capacity as Sheriff of Kern County

Sheriff’s Department and Lerdo

Detention Facility,

Respondents-Appellees. 

Appeal from the United States District Court

for the Northern District of California

Jeffrey S. White, District Judge, Presiding

Argued and Submitted

October 4, 2010—Pasadena, California

Filed March 31, 2011

4509
Before: Susan P. Graber, Raymond C. Fisher and

Jay S. Bybee, Circuit Judges.1

Opinion by Judge Fisher

1

Judge Susan P. Graber was drawn to replace Judge Cynthia Holcomb

Hall, now deceased. Judge Graber has read the briefs, reviewed the record

and listened to the tape of oral argument held on October 4, 2010. 

4510 SINGH v. HOLDER
COUNSEL

Holly S. Cooper, Kelly Martin and Scott Grzenczyk (argued),

U.C. Davis Immigration Law Clinic, Davis, California, for the

appellant.

Joseph P. Russoniello, United States Attorney, Joann Swanson, Chief, Civil Division, Ila C. Deiss, Assistant United

States Attorney, San Francisco, California, and William H.

Orrick, III (argued), U.S. Department of Justice, Washington,

D.C., for the appellee.

4514 SINGH v. HOLDER
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. 

OPINION

FISHER, Circuit Judge:

[1] 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.

Background

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. citiSINGH v. HOLDER 4515
zens. 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).2 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 crossexamination, 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. 

2On September 27, 2007, ICE amended the NTA to add the charge that

Singh was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because he had

been convicted of an aggravated felony. This charge was premised on

Singh’s 2003 conviction for receiving stolen property, which Singh unsuccessfully argued did not qualify as an aggravated felony. 

4516 SINGH v. HOLDER
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

SINGH v. HOLDER 4517
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.

Jurisdiction

[2] 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

constitutional claims or questions of law. 

The Supreme Court held in Demore that § 1226(e) does not

strip a district court of its traditional habeas jurisdiction, “bar

constitutional challenge[s]” or preclude a district court from

addressing a habeas petition “challeng[ing] the statutory

framework that permits [the petitioner’s] detention without

bail.” 538 U.S. at 516-17; see also Al-Siddiqi v. Achim, 531

F.3d 490, 494 (7th Cir. 2008) (holding that § 1226(e) “does

not deprive us of our authority to review statutory and constitutional challenges”); Saint Fort v. Ashcroft, 329 F.3d 191,

200 (1st Cir. 2003) (noting that Demore “read the jurisdictionlimiting provision in § 1226(e) as applying only to review of

the Attorney General’s discretionary judgment”); Sierra v.

4518 SINGH v. HOLDER
INS, 258 F.3d 1213, 1217-18 (10th Cir. 2001) (holding,

before Demore was decided, that “§ 1226(e) does not

‘speak[ ] with sufficient clarity to bar jurisdiction pursuant to

the general habeas statute’ ” (alterations in original) (quoting

INS v. St. Cyr, 533 U.S. 289, 313 (2001))). In addition,

although the Attorney General’s “discretionary judgment . . .

shall not be subject to review,” claims that the discretionary

process itself was constitutionally flawed are “cognizable in

federal court on habeas because they fit comfortably within

the scope of § 2241.” Gutierrez-Chavez v. INS, 298 F.3d 824,

829 (9th Cir. 2002). 

[3] The conclusion that the district court had habeas jurisdiction to review Singh’s claims of constitutional and legal

error is also consistent with 8 U.S.C. § 1252(a)(2)(B)(ii). Like

§ 1226(e), § 1252(a)(2)(B)(ii) restricts jurisdiction only with

respect to the executive’s exercise of discretion. It does not

limit habeas jurisdiction over questions of law, see Afridi v.

Gonzales, 442 F.3d 1212, 1218 (9th Cir. 2006), overruled on

other grounds by Estrada-Espinoza v. Mukasey, 546 F.3d

1147 (9th Cir. 2008) (en banc), including “application of law

to undisputed facts, sometimes referred to as mixed questions

of law and fact,” Ramadan v. Gonzales, 479 F.3d 646, 648

(9th Cir. 2007) (per curiam).

Standard of Review

We review de novo the district court’s decision to grant or

deny a § 2241 petition for a writ of habeas corpus. See

Nadarajah v. Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006).

We also review de novo due process claims and questions of

law raised in immigration proceedings. See Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). The district court’s

findings of fact are reviewed for clear error. See Jones v.

Wood, 207 F.3d 557, 559 (9th Cir. 2000).

SINGH v. HOLDER 4519
Discussion

I. Burden and Standard of Proof

A. The Immigration Judge Properly Placed the Burden

of Proof on the Government

[4] The first issue is whether the immigration judge properly allocated the burden of proof. As we held in CasasCastrillon, the burden of establishing whether detention is

justified falls on the government. See Casas-Castrillon, 535

F.3d at 951 (“[A]n alien is entitled to release on bond unless

the ‘government establishes that he is a flight risk or will be

a danger to the community.’ ” (emphasis added) (quoting

Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005))). Singh

contends that the IJ failed to adhere to this principle by

improperly placing the burden on him to show that he was

neither a danger nor a flight risk. We disagree. Although the

IJ initially stated that Singh bore the burden of proof, Singh

objected and the IJ immediately acknowledged the error. The

IJ’s written bond memorandum also reflects the proper allocation of the burden of proof to the government. We therefore

reject Singh’s argument. 

B. The Applicable Standard of Proof is Clear and

Convincing Evidence

[5] Neither Casas-Castrillon nor any other Ninth Circuit,

statutory or regulatory authority specifies the appropriate

standard of proof at a Casas bond hearing. Singh argues that

the government should be held to a clear and convincing evidence standard of proof.3

 Given the substantial liberty interest

3The government points out that Singh did not raise this argument

before the BIA, and therefore has not administratively exhausted the

claim, but the government does not request that we decline to address the

issue. The district court made no mention of an exhaustion problem in its

decision. On habeas review under § 2241, exhaustion is a prudential rather

4520 SINGH v. HOLDER
at stake — Singh, for example, has been detained for nearly

four years — we hold that the government must prove by

clear and convincing evidence that an alien is a flight risk or

a danger to the community to justify denial of bond at a Casas

hearing. 

As we said in Casas-Castrillon, even where prolonged

detention is permissible, “due process requires ‘adequate procedural protections’ to ensure that the government’s asserted

justification for physical confinement ‘outweighs the individual’s constitutionally protected interest in avoiding physical

restraint.’ ” 535 F.3d at 950 (quoting Zadvydas v. Davis, 533

U.S. 678, 690 (2001)). Because it is improper to ask the individual to “share equally with society the risk of error when

the possible injury to the individual” — deprivation of liberty

— is so significant, a clear and convincing evidence standard

of proof provides the appropriate level of procedural protection. Addington v. Texas, 441 U.S. 418, 427 (1979); see also

Tijani, 430 F.3d at 1244 (Tashima, J., concurring) (explaining

that, under Addington, the primary function of a standard of

proof is to properly “allocate the risk of an erroneous decision

among litigants based upon the competing rights and interests

involved”). 

than jurisdictional requirement. See Arango Marquez, 346 F.3d at 897; see

also Acevedo-Carranza v. Ashcroft, 371 F.3d 539, 541 (9th Cir. 2004). We

exercise our discretion to waive the requirement and reach the issue. First,

a record of administrative appeal is not germane to the purely legal question of what standard is most appropriate for such hearings. Second, relaxation of the requirement in this case will not encourage future habeas

petitioners to attempt to bypass the administrative scheme because, once

the standard has been set, this issue should cease to arise. Third, administrative review would not preclude the need for judicial review, because litigants would undoubtedly seek this court’s determination of whether

whatever standard the agency set was correct. See Puga v. Chertoff, 488

F.3d 812, 815 (9th Cir. 2007) (discussing the factors courts consider when

determining whether to require prudential exhaustion). Given these circumstances, and given that Singh has already been detained for nearly four

years, we conclude that the interests of justice favor waiver. 

SINGH v. HOLDER 4521
[6] The Supreme Court has repeatedly reaffirmed the principle that “due process places a heightened burden of proof on

the State in civil proceedings in which the ‘individual interests at stake . . . are both particularly important and more substantial than mere loss of money.’ ” Cooper v. Oklahoma, 517

U.S. 348, 363 (1996) (alterations in original) (quoting Santosky v. Kramer, 455 U.S. 745, 756 (1982)); see also Foucha

v. Louisiana, 504 U.S. 71, 80 (1992) (requiring clear and convincing evidence to justify civil commitment because

“[f]reedom from bodily restraint has always been at the core

of the liberty protected by the Due Process Clause”); Woodby

v. INS, 385 U.S. 276, 285 (1966) (requiring “clear, unequivocal, and convincing” evidence to prove deportability); Chaunt

v. United States, 364 U.S. 350, 353 (1960) (requiring “clear,

unequivocal, and convincing” evidence to set aside a naturalization decree (internal quotation marks omitted)). For detainees like Singh, who face years of detention before resolution

of their removability, the individual interest at stake is without

doubt “particularly important and more substantial than mere

loss of money,” and therefore a heightened standard of proof

is warranted. Santosky, 455 U.S. at 756. 

We are not persuaded by the government’s argument that

we should deviate from this principle and apply the lower preponderance of the evidence standard because the liberty interest at stake here is less than for people subject to an initial

finding of removal or other types of civil commitment. First,

the government argues that its purpose for detaining people

like Singh is distinguishable from other sorts of civil commitment because removal is its ultimate goal. The Supreme

Court, however, “repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of

liberty.” Addington, 441 U.S. at 425, 427 (emphasis added)

(concluding that the individual’s interests were “of such

weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence”). 

4522 SINGH v. HOLDER
Second, the government argues that aliens like Singh

should be treated differently because they can end their detention by voluntarily electing to leave the country. As the government conceded at oral argument, however, in some cases

aliens who do so will not be permitted to continue challenging

their removability from abroad. We are not persuaded that a

lower standard of proof is justified by putting people like

Singh to the choice of remaining in detention, potentially for

years, or leaving the country and abandoning their challenges

to removability even though they may have been improperly

deemed removable. 

Finally, the government argues that Singh’s liberty interest

is diminished because he has already been afforded a removal

hearing. We considered an analogous argument in Diouf v.

Napolitano, ___ F.3d ___, 2011 WL 768077 (9th Cir. 2011),

which addressed whether § 1231(a)(6) detainees have a lesser

liberty interest in freedom from detention than § 1226(a)

detainees because, “[u]nlike a § 1226(a) detainee, a

§ 1231(a)(6) detainee is subject to a final order of removal

and is thus, at least as a theoretical matter, closer to actual

removal from the United States.” Id. at *4. We concluded that

“the government ma[de] too much of this distinction” because

“[r]egardless of the stage of the proceedings, the same important interest is at stake — freedom from prolonged detention.”

Id. We reach the same conclusion here. Although “at the margin” Singh’s liberty interest may be slightly less than that of

someone subject to only an initial finding of removal, fundamentally the same interest in freedom from prolonged detention is at stake. Id.

[7] We therefore hold that the clear and convincing evidence standard of proof applies in Casas bond hearings.4

 The

4Statutes and regulations addressing similar issues also employ this

heightened standard of proof. For example, “the [government] has the burden of establishing by clear and convincing evidence that, in the case of

an alien who has been admitted to the United States, the alien is deportSINGH v. HOLDER 4523
IJ erred in not holding the government to that heightened standard at Singh’s Casas hearing. 

[8] We also conclude that this error was prejudicial. The

evidence that Singh was a danger and a flight risk was by no

means overwhelming, so the standard of proof could well

have affected the outcome of the bond hearing. Significantly,

during the hearing the IJ orally announced his finding that

Singh was not a flight risk, and only later, in the written bond

memorandum, found otherwise. Indeed, the government never

argued that Singh was a flight risk or presented any evidence

to that effect. Consequently, the only evidence the BIA cited

for its affirmance of the IJ’s conclusion that Singh was a

flight risk was the fact — common to all detainees afforded

Casas bond hearings — that Singh had already been ordered

removed by a final, administrative order, diminishing his

incentive to appear for further removal proceedings. Although

this is a relevant factor in the calculus, it alone does not constitute clear and convincing evidence that Singh presented a

flight risk justifying denial of bond. 

Next, the evidence showing that Singh presented a danger

was equivocal. In affirming the denial of bond, the BIA

focused on Singh’s prior convictions for petty theft, receiving

stolen property and substance abuse. Under a clear and convincing evidence standard, the BIA might conclude that

Singh’s largely nonviolent prior bad acts do not demonstrate

able.” 8 U.S.C. § 1229a(c)(3)(A); see also Woodby, 385 U.S. at 285 (holding that the government must prove deportability by “clear, unequivocal,

and convincing” evidence). Likewise, 8 C.F.R. § 1236.1(c)(3) establishes

that when the burden of justifying pre-removal detention has not yet been

shifted to the government, criminal aliens must establish by clear and convincing evidence that they are not a danger or flight risk and are likely to

appear for any scheduled proceeding. See also 8 U.S.C. § 1158(a)(2)(B)

(providing that an alien must demonstrate by clear and convincing evidence that his or her asylum application was filed within one year of the

alien’s arrival). 

4524 SINGH v. HOLDER
a propensity for future dangerousness, in view of evidence

showing that his drug use, which was the impetus for his previous offenses, has ceased. 

[9] For these reasons, we cannot conclude that the clear

and convincing evidence standard we adopt today would not

have affected the outcome of the bond hearing. Accordingly,

we remand this case 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 proper standard. 

II. The Standard of Dangerousness that Must Be Met

to Deny Bond

A. Casas-Castrillon and Matter of Guerra Contemplate

that Criminal History Alone May Be Insufficient to

Justify Detention

[10] In Prieto-Romero we explained that, to determine

whether aliens like Singh who are detained under § 1226(a)

present a “flight risk or danger to the community,” immigration judges “should . . . look[ ] to the factors set forth at Matter of Guerra, [24 I. & N. Dec. 37, 40 (B.I.A. 2006)].” 534

F.3d at 1065-66. The Guerra factor most pertinent to assessing dangerousness directs immigration judges to consider “the

alien’s criminal record, including the extensiveness of criminal activity, the recency of such activity, and the seriousness

of the offenses.” Guerra, 24 I. & N. Dec. at 40.5

5Guerra discusses nine factors that, 

Immigration Judges may look to . . . in determining whether an

alien merits release from bond, as well as the amount of bond that

is appropriate. These factors may include any or all of the following: (1) whether the alien has a fixed address in the United States;

(2) the alien’s length of residence in the United States; (3) the

alien’s family ties in the United States, and whether they may

entitle the alien to reside permanently in the United States in the

SINGH v. HOLDER 4525
[11] Although an alien’s criminal record is surely relevant

to a bond assessment, Guerra contemplates that criminal history alone will not always be sufficient to justify denial of

bond on the basis of dangerousness. Rather, the recency and

severity of the offenses must be considered. See id. CasasCastrillon likewise recognized that not every criminal record

would support a finding of dangerousness. Every criminal

alien who receives a Casas hearing has, presumably, been

convicted of at least one crime giving rise to the removal

order. Nevertheless, Casas-Castrillon required individualized

bond hearings to ensure that “the government’s purported

interest” in securing the alien’s presence at removal and protecting the community from danger “is actually served by

detention in [t]his case,” necessarily anticipating that criminal

history alone would not always justify detention. CasasCastrillon, 535 F.3d at 949. 

[12] Indeed, not all criminal convictions conclusively

establish that an alien presents a danger to the community,

even where the crimes are serious enough to render the alien

removable. Cf. Foucha, 504 U.S. at 82-83 (requiring a showing of dangerousness beyond that “of any convicted criminal”

to justify civil detention of the criminally insane). For example, some orders of removal may rest on convictions for relatively minor, non-violent offenses such as petty theft and

receiving stolen property. Moreover, a conviction could have

occurred years ago, and the alien could well have led an

entirely law-abiding life since then. In such cases, denial of

future; (4) the alien’s employment history; (5) the alien’s record

of appearance in court; (6) the alien’s criminal record, including

the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses; (7) the alien’s history of

immigration violations; (8) any attempts by the alien to flee prosecution or otherwise escape from authorities; and (9) the alien’s

manner of entry to the United States. 

24 I. & N. Dec. at 40. 

4526 SINGH v. HOLDER
bond on the basis of criminal history alone may not be warranted. 

B. The Government Need Not Establish “Special

Dangerousness” to Justify Denial of Bond

Singh urges us to require the government to prove that a

detainee is “a specially dangerous person” to justify denial of

bond. The government argues that the Guerra standard is sufficient, and no heightened showing of dangerousness is

required. We are persuaded by the government’s argument.6

Although we recognize that the “basic purpose” of immigration detention is “assuring the alien’s presence at the moment

of removal,” Zadvydas, 533 U.S. at 699, and “protecting the

community from dangerous aliens is a . . . secondary statutory

purpose” more typically addressed through criminal law, id.

at 697, we disagree with Singh’s argument that Zadvydas

requires a heightened standard of “special dangerousness.”

[13] In deciding that special dangerousness is not required,

we draw a distinction between temporary and indefinite

detention. Although the Supreme Court noted in Zadvydas

that it has sanctioned “preventive detention based on dangerousness only when limited to specially dangerous individuals,” Zadvydas held the confinement at issue unconstitutional

in large part because the detention was “not limited, but

potentially permanent.” Id. at 691. Regulations governing

continued detention of removable aliens are in accord, providing that an alien must be found “specially dangerous” to permit prolonged post-final order detention “where there is no

significant likelihood of removal in the reasonably foresee6We are not persuaded by the government’s threshold argument that we

must sustain the district court’s determination that this question implicates

the immigration judge’s exercise of discretion, and is therefore unreviewable under 8 U.S.C. § 1226(e). The question of what standard of dangerousness the government must meet presents a reviewable legal issue. See

Afridi, 442 F.3d at 1218. 

SINGH v. HOLDER 4527
able future.” 8 C.F.R. § 1241.14(a) (emphasis added). Likewise, the Ninth Circuit cases Singh cites in support of his

argument for a special dangerousness standard address postremoval period indefinite detentions. See, e.g., Tuan Thai v.

Ashcroft, 366 F.3d 790, 792 (9th Cir. 2004); Kim Ho Ma v.

Ashcroft, 257 F.3d 1095, 1102 (9th Cir. 2001). Singh, however, does not allege that he is subject to indefinite detention

like the Zadvydas detainees who were experiencing

“removable-but-unremovable limbo.” Prieto-Romero, 534

F.3d at 1063. Unlike in Zadvydas, Singh does not contend that

the United States lacks a repatriation treaty with Fiji or that

Fiji will refuse to accept him. Accordingly, although Singh’s

detention “lacks a certain end date,” it is not “indefinite in the

sense the Supreme Court found constitutionally problematic

in Zadvydas.” Id.

Zadvydas also focused on the minimal procedural protections afforded to the detainees through administrative proceedings, noting that “the alien bears the burden of proving he

is not dangerous, without . . . significant later judicial

review.” 533 U.S. at 692. Here, by contrast, the government

bears the burden of proof, and must meet a clear and convincing evidence standard of proof. In addition, we have said that

there is jurisdiction for federal habeas courts to review Casas

bond determinations for constitutional claims and legal error.

There are thus far greater procedural protections in this context than there were in Zadvydas. 

[14] Given that Singh’s detention is not indefinite and that

procedural protections are in place to safeguard his rights, we

hold that due process does not require the government to

prove that he presents a “special danger” to justify denial of

bond at a Casas hearing.

III. The Government Must Provide

Contemporaneous Records of Casas Hearings

[15] In conjunction with his appeal of the denial of bond

at his Casas hearing, Singh asked the BIA to produce a tran4528 SINGH v. HOLDER
script of the hearing. Five days later he received a summary

denial of his request. The BIA has long concluded that

“[t]here is no right to a transcript of a bond redetermination

hearing.” Matter of Chirinos, 16 I. & N. Dec. 276, 277 (B.I.A.

1977). Current procedures provide instead that a written

memorandum decision is prepared only if a detainee appeals

the oral bond determination. See U.S. Dep’t of Justice, Exec.

Office for Immig. Rev., Immigration Court Practice Manual,

§ 9.3(e)(iii) & (vii) (2008). Singh argues that this post hoc

memorandum is inadequate, and that the absence of a contemporaneous record deprived him of due process. In accordance

with Mathews v. Eldridge, 424 U.S. 319 (1976), we agree that

due process requires a contemporaneous record of Casas

hearings and that the memorandum decision presently provided is insufficient. We hold that, in lieu of providing a transcript, the immigration court may record Casas hearings and

make the audio recordings available for appeal upon request.

Although we determine that such audio recordings satisfy due

process, and are feasible for the government to provide, we do

not decide whether they are the only constitutionally adequate

alternative to transcripts. 

Evaluating the constitutional sufficiency of administrative

procedures calls for analysis of the governmental and private

interests affected. See id. at 334. 

[T]he specific dictates of due process generally

require[ ] consideration of three distinct factors:

First, the private interest that will be affected by the

official action; second, the risk of an erroneous

deprivation of such interest through the procedures

used, and the probable value, if any, of additional or

substitute procedural safeguards; and finally, the

Government’s interest, including the function

involved and the fiscal and administrative burdens

that the additional or substitute procedural requirement would entail.

SINGH v. HOLDER 4529
Id. at 335. The private interest here — freedom from prolonged detention — is unquestionably substantial. It is also

fundamentally affected by the BIA’s refusal to provide transcripts or an adequate substitute. See Bergerco, U.S.A. v.

Shipping Corp. of India, 896 F.2d 1210, 1215 (9th Cir. 1990)

(“[W]here a defendant makes allegations of error which, if

true, would be prejudicial, the unavailability of a transcript

may make it impossible for the appellate court to determine

whether the defendant’s substantive rights were affected.”). 

The memorandum decision provided under existing procedures is insufficient for two reasons. First, it is not created

contemporaneously with the hearing. Post-hoc reconstruction

is inadequate because, “once the court has entered judgment,

it may become subject to the very natural weight of its conviction, tending to focus on that which supports its holding.”

Id. at 1214. Second, the memorandum decision is not the

functional equivalent of a transcript. Although a “ ‘record of

sufficient completeness’ does not translate automatically into

a complete verbatim transcript,” alternatives are permissible

only if they constitute an “equivalent report of the events at

trial from which the appellant’s contentions arise.” Mayer v.

City of Chicago, 404 U.S. 189, 194 (1971). The potentially

adequate substitutes the Supreme Court has suggested — “[a]

statement of facts agreed to by both sides, a full narrative

statement based perhaps on the trial judge’s minutes taken

during trial or on the court reporter’s untranscribed notes, or

a bystander’s bill of exceptions” — demonstrate the insufficiency of an after-the-fact decision drafted by an immigration

judge in the face of an impending appeal of his or her decision. Id. (internal quotation marks omitted) (quoting Draper

v. Washington, 372 U.S. 487, 495 (1963)). The suggested adequate substitutes do, however, demonstrate that an audio

recording — a neutral contemporaneous record of the hearing

— would provide a “record of sufficient completeness.”

Accordingly, the first two Eldridge factors weigh heavily in

favor of requiring a neutral contemporaneous record of Casas

4530 SINGH v. HOLDER
hearings, and we conclude that audio recordings would satisfy

due process. 

The final Eldridge factor, which looks to the burden on the

government, also favors Singh. See Eldridge, 424 U.S. at 335.

Although providing transcripts might constitute a significant

burden, the burden of tape recording hearings is much less

onerous and much less costly. Indeed, as counsel for the government readily conceded, immigration courts, where bond

hearings take place, already are required to be equipped with

recording devices and routinely record merits hearings. See 8

C.F.R. § 1240.9 (requiring all merits hearings on removal and

relief to be recorded). Because the government has the appropriate equipment at hand, tape recording bond hearings as

well as merits hearings would present a minimal additional

burden. Therefore, given the important liberty interest at

stake, the Eldridge factors dictate that the government must

make available for appeal a contemporaneous record of Casas

bond hearings. In the absence of a transcript, an audio recording would suffice.

[16] Accordingly, in this case Singh was denied due process. We agree, however, with the district court’s conclusion

that Singh has not demonstrated prejudice. Although, generally speaking, a transcript or adequate substitute is important

for providing meaningful appellate review, Singh has not

shown that a recording or transcript would reveal any error

that is not sufficiently apparent from the IJ’s memorandum

decision.

IV. Other Alleged Errors

[17] We reject Singh’s other claims of error. Singh argues

that he suffered a due process violation when the IJ permitted

the government to cross-examine his wife even though the

parties had previously stipulated that her affidavit would be

submitted as true without cross-examination. We need not

resolve this question because Singh cannot demonstrate prejuSINGH v. HOLDER 4531
dice. See Prieto-Romero, 534 F.3d at 1066 (subjecting due

process violations in immigration proceedings to harmless

error review). The government asked Mrs. Singh about two

charges of domestic violence that appeared on Singh’s criminal record, which was later admitted into evidence. Mrs.

Singh testified that she had not brought the charges against

her husband, she was not afraid of him and she did not consider him a threat. Given that the prejudicial information

about the domestic violence charges was also admitted from

another source and, if anything, Mrs. Singh’s testimony on

cross-examination was otherwise helpful to Singh, he was not

prejudiced.

[18] We also reject Singh’s argument that his due process

rights were violated when the IJ admitted his unauthenticated

RAP sheet into evidence. The Federal Rules of Evidence do

not apply strictly in immigration removal proceedings. See,

e.g., Baliza v. INS, 709 F.2d 1231, 1233 (9th Cir. 1983) (holding that deportation proceedings are “not . . . bound by strict

rules of evidence”). As the BIA acknowledged in its decision,

bond hearings are particularly informal in nature. See Joseph

v. Holder, 600 F.3d 1235, 1242 (9th Cir. 2010); id. at 1248

(Graber, J., specially concurring). Furthermore, DHS regulations delineating the rules of procedure for bond determinations in immigration court specify that an immigration judge

may rely “upon any information that is available to the Immigration Judge or that is presented to him or her by the alien

or the Service.” 8 C.F.R. § 1003.19(d). Requiring the parties

to adhere strictly to the Federal Rules of Evidence would run

counter to this regulation and the informal nature of the proceedings.

We reject Singh’s related argument that the Immigration

and Nationality Act prohibits admission of the unauthenticated RAP sheet because DHS regulations provide that

domestic official records “shall be evidenced by an official

publication thereof, or by a copy attested by the official having legal custody of the record or by an authorized deputy.”

4532 SINGH v. HOLDER
8 C.F.R. § 287.6(a). His argument fails because § 287.6(a)

applies only to a “proceeding under this chapter,” which is

Chapter I, whereas § 1003.19, which governs bond hearings

by immigration judges, is part of Chapter V. Section 1003.41,

which governs admissible evidence of criminal convictions at

proceedings before an immigration judge held under Chapter

V, provides that, in addition to records complying with

§ 287.6(a), a variety of other specified documents may prove

a criminal conviction, as well as “[a]ny other evidence that

reasonably indicates the existence of a criminal conviction.”

8 C.F.R. § 1003.41(d). 

[19] We also conclude that Singh suffered no prejudice

when the IJ admitted his RAP sheet without giving him an

opportunity to explain or rebut it. Even if this could constitute

a due process violation, there is no indication that any of the

information in the RAP sheet is false, or that Singh could

have provided a mitigating explanation for any of the incidents. On the contrary, the BIA considered Singh’s argument

and found that even if there was error, it was harmless

because Singh’s criminal history was already in the record.

V. Jurisdiction to Consider the Merits of

Singh’s Petition for Review

[20] Singh also makes a substantive due process argument

that the district court should have “look[ed] to the underlying

merits of Singh’s removal to determine if he has raised a substantial argument that he is unremovable” and therefore entitled to habeas relief. The district court held that it did not have

jurisdiction to do so, treating Singh’s argument as a “backdoor attempt to have this Court review the underlying merits

of Petitioner’s removal, which this Court cannot do [under the

REAL ID Act, Pub. L. No. 109-13, Div. B, 119 Stat. 231, 231

(2005)].” 

[21] The REAL ID Act “expressly eliminated habeas

review over all final orders of removal,” A. Singh v. Gonzales,

SINGH v. HOLDER 4533
499 F.3d 969, 977 (9th Cir. 2007), and provided that a petition for review in the court of appeals is the “sole and exclusive means for judicial review of an order of removal,” 8

U.S.C. § 1252(a)(5). Congress’ purpose in enacting the REAL

ID Act was to “restor[e] judicial review ‘to its former settled

forum prior to 1996’ ” by eliminating suits in district courts

and funneling review of removal orders directly to the courts

of appeals. A. Singh, 499 F.3d at 977 (quoting H.R. Rep. No.

109-72, at 174 (2005), reprinted in 2005 U.S.C.C.A.N. 240,

299). The REAL ID Act was thus intended to reinstate a system “abbreviat[ing] the process of judicial review,” id. at 975,

by “effectively limit[ing] all aliens to one bite of the apple

with regard to challenging an order of removal,” id. at 977

(internal quotation marks and emphasis omitted) (quoting

Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005)).

[22] Congress has clarified, however, that the REAL ID

Act was not intended to “preclude habeas review over challenges to detention that are independent of challenges to

removal orders.” H.R. Rep. No. 109-72, at 175. Accordingly,

the general rule is that “[e]ven post-[REAL ID Act], aliens

may continue to bring collateral legal challenges to the Attorney General’s detention authority . . . through a petition for

habeas corpus.” Casas-Castrillon, 535 F.3d at 946; see also

Nadarajah v. Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006)

(holding that “the jurisdiction-stripping provision [of the

REAL ID Act] does not apply to federal habeas corpus petitions that do not involve final orders of removal”). “We must

be careful to maintain the distinction Congress made in the

REAL ID Act between those challenges that [must be directed

to the court of appeals in a petition for review] and those that

must be retained in and decided by the district court,” so as

not to unduly circumscribe district courts’ habeas jurisdiction.

Nnadika v. Att’y Gen. of U.S., 484 F.3d 626, 632 (3d Cir.

2007). We should also avoid the opposite pitfall, however,

and recognize the lack of jurisdiction where a habeas petition

“directly implicate[s] the order of removal.” Id. (discussing

Haider v. Gonzales, 438 F.3d 902 (8th Cir. 2006), as an

4534 SINGH v. HOLDER
example of such a case). The portion of Singh’s habeas petition that asks us to consider the underlying merits of his

removal order presents an example of this exception to the

rule. 

[23] Although as a technical matter Singh’s habeas petition

seeks relief from immigration detention without asking the

court to exercise jurisdiction over his final order of removal,

this portion of his habeas petition is wholly intertwined with

the merits of his removal order. Singh makes the same argument in his habeas petition as he makes in his petition for

review — that he is not removable because his convictions do

not qualify as aggravated felonies under 8 U.S.C.

§ 1101(a)(43)(G). See Haider, 438 F.3d at 910. Because this

portion of his habeas petition “does nothing more than attack

the IJ’s removal order,” id., we lack jurisdiction to review it

other than on a petition for review. 

We emphasize, however, that determining when the REAL

ID Act preempts habeas jurisdiction requires a case-by-case

inquiry turning on a practical analysis, and that there are

many circumstances in which an alien subject to an order of

a removal can properly challenge his immigration detention in

a habeas petition without unduly implicating the order of

removal. For example, in Flores-Torres v. Mukasey, 548 F.3d

708, 711 (9th Cir. 2008), we held that habeas jurisdiction

existed to review a challenge to immigration detention based

on the detainee’s argument that he was actually a United

States citizen and therefore could not properly be held in custody under 8 U.S.C. § 1226(a), which applies only to “alien[s].” Similarly, in Casas-Castrillon, we had jurisdiction to

consider whether it was constitutional to detain an alien subject to removal without an individualized bond hearing evaluating his risk of flight or dangerousness. See 535 F.3d at 946.

And in A. Singh, we reasoned that there was jurisdiction to

review a claim of ineffective assistance of counsel for failure

to timely petition for review because “a successful habeas

petition in this case will lead to nothing more than ‘a day in

SINGH v. HOLDER 4535
court’ for Singh, which is consistent with Congressional

intent underlying the REAL ID Act.” 499 F.3d at 979. 

In each of these cases, the habeas challenge to detention

had a basis independent of the merits of the petition for

review. Even where the bases for the habeas petition and petition for review were related, as in Flores-Torres, the detention challenge could stand alone. Here, by contrast, this

portion of Singh’s habeas challenge rests entirely on his assertion that he has presented a meritorious argument in his petition for review. He explicitly asks the habeas court to evaluate

whether “the Government is unlikely to prevail in removal

proceedings because [he] has raised a substantial argument

that he is not removable” in his pending petition for review.

Singh therefore advocates for an odd system wherein the district court would examine the arguments against removal that

an alien expects to present to this court in his petition for

review, and potentially release him from detention based on

a prediction about what this court is likely to conclude when

it decides his pending petition for review. 

Such a scheme would contravene Congress’ express intention to limit review of removal orders to “one day in the court

of appeals.” A. Singh, 499 F.3d at 978 (internal quotation

marks omitted) (quoting H.R. Rep. No. 109-72, at 175).

Indeed, were we to permit habeas review that “look[s] to the

underlying removal claim” as Singh requests, every alien petitioning for review of his removal order could also petition for

habeas review on this basis, arguing that his detention is

impermissible because he will raise a meritorious argument in

his pending petition for review, and his removal is therefore

not reasonably foreseeable. This result would severely undermine the streamlined system Congress sought to establish by

enacting the REAL ID Act. Although we are sympathetic to

Singh’s desire for judicial review at the earliest possible

moment, the REAL ID Act dictates that such review must

take place in the proceedings related to his petition for review,

4536 SINGH v. HOLDER
rather than in the present appeal.7

 Whether or not this is the

optimal system as a matter of policy, it is consistent with the

Suspension Clause because it provides a substitute remedy

offering the same scope of review as habeas. See Puri v. Gonzales, 464 F.3d 1038, 1041-42 (9th Cir. 2006) (citing Swain

v. Pressley, 430 U.S. 372, 381 (1977) and INS v. St. Cyr, 533

U.S. 289, 314 n.38 (2001)).

Conclusion

[24] The judgment of the district court is affirmed in part

and vacated in part and the matter is remanded 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. 

Costs on appeal are awarded to Singh.

AFFIRMED IN PART, VACATED IN PART and

REMANDED.

7Singh mischaracterizes Nadarajah and Tijani when he suggests that

they demonstrate that a habeas court can properly consider whether he is

likely to prevail in his pending petition for review. In Nadarajah, we held

that the REAL ID Act was inapplicable because there was not yet any

final order of removal, and the REAL ID Act applies to habeas petitions

that “involve final orders of removal.” 443 F.3d at 1075-76. In Tijani,

although we were troubled by the length of detention prior to removal,

rather than consider the merits of the underlying removal order, we

ordered a bond hearing of the sort Singh has already been provided. See

Tijani, 430 F.3d at 1242. 

SINGH v. HOLDER 4537