PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

_______________

No. 19-2663

_______________

JOSE MIGUEL GERMAN SANTOS,

Appellant

v.

WARDEN PIKE COUNTY CORRECTIONAL FACILITY 

_______________

On Appeal from the United States District Court 

for the Middle District of Pennsylvania

(D.C. No. 1:18-cv-01553)

District Judge: Honorable Sylvia H. Rambo

_______________

Argued: May 21, 2020

Before: McKEE, BIBAS, and NYGAARD, Circuit Judges

(Filed: July 7, 2020)

_______________
2

Jonah B. Eaton

Rebecca Hufstader [ARGUED]

Nationalities Service Center

1216 Arch Street, 4th Floor

Philadelphia, PA 19107

Counsel for Appellant

Sarah S. Wilson [ARGUED]

United States Department of Justice

Office of Immigration Litigation

1801 4th Avenue North

Birmingham, AL 35203

Allison Frayer

Catherine Reno

United States Department of Justice

Office of Immigration Litigation

P.O. Box 868

Ben Franklin Station

Washington, DC 20044

Counsel for Appellee

Celso J. Perez [ARGUED]

Michael K.T. Tan

American Civil Liberties Union

Immigrants’ Rights Project

125 Broad Street, 18th Floor

New York, NY 10004

Vanessa Stine

American Civil Liberties Union of Pennsylvania

P.O. Box 60173
3

Philadelphia, PA 19102

Counsel for Amici American Civil Liberties Union Foundation, American Civil Liberties Union of New Jersey, 

and American Civil Liberties Union of Pennsylvania

Christopher R. Healy

Anthony C. Vale

Pepper Hamilton 

3000 Two Logan Square

18th and Arch Streets

Philadelphia, PA 19103

Counsel for Amici American Immigration Lawyers Association, Federal Litigation and Appeals Clinic at Drexel 

University Thomas Kline School of Law, Immigration Defense Project, Rapid Defense Network, and American 

Friends Service

Sarah H. Paoletti

University of Pennsylvania School of Law

Transnational Legal Clinic

3501 Sansom Street

Philadelphia, PA 19104

Counsel for Amicus International Law Professors and Human Rights Clinicians
4

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OPINION OF THE COURT

_______________

BIBAS, Circuit Judge. 

Under 8 U.S.C. §1226(c), the Government must detain certain criminal aliens pending their removal proceedings, even if 

they were lawfully present in the United States. Jose German 

Santos, a lawful permanent resident, was detained under that 

statute and has now been imprisoned for more than two-and-ahalf years. Because his detention has become unreasonable, he 

has a due process right to a bond hearing, at which the Government must justify his continued detention by clear and convincing evidence. We will thus reverse and remand.

I. BACKGROUND

A. German Santos’s arrest and detention

German Santos, a native of the Dominican Republic, became a lawful permanent resident of the United States in 2006. 

In late 2017, he pleaded guilty in Pennsylvania state court to 

possessing marijuana with intent to deliver it. If that crime is 

an “aggravated felony” under immigration law, then he is removable. 8 U.S.C. §1227(a)(2)(A)(iii). And immigration law 

defines “illicit trafficking in a controlled substance” as such a 

crime. Id. §1101(a)(43)(B).

So in December 2017, immigration officials arrested German Santos. They took him to the Pike County Correctional 

Facility to await a decision in his removal proceedings. They 
5

did so under 8 U.S.C. §1226(c), which requires the Government to detain aliens convicted of certain crimes while they 

await decisions in their removal proceedings. And though another statutory provision lets aliens be released on bond while 

awaiting a removal decision, §1226(c) does not. Compare id.

§1226(a)(2) (allowing bond and conditional parole), with id. 

§1226(c)(2) (allowing release of detained aliens only in limited 

circumstances).

B. Removal proceedings

In June 2018, an immigration judge ordered German Santos 

removed. The immigration judge found that his conviction was 

an aggravated felony and denied his requests for relief from 

removal. 

German Santos timely appealed. Because he did not pay the 

filing fee at first, the Board of Immigration Appeals rejected 

his appeal. Nine days later, he refiled. The Board considered 

the merits and affirmed, finding that German Santos had committed an aggravated felony and thus was ineligible for cancellation of removal. See 8 U.S.C. §1229b(a)(3).

When German Santos petitioned this Court for review, the 

Government moved to remand. The Government asked us to 

let the Board reconsider its application of the modified categorical approach in finding that his conviction was an aggravated felony. We did so.

C. Habeas petition

While awaiting the Board’s decision on remand, German 

Santos filed this federal habeas petition under 28 U.S.C. 
6

§2241. By then, he had been detained at the prison for eight 

months. He invoked two of our precedents, in which we had 

held that the Fifth Amendment’s Due Process Clause guarantees a bond hearing to an alien detained under §1226(c) once 

his detention becomes “unreasonable.” Chavez-Alvarez v. 

Warden York Cty. Prison, 783 F.3d 469, 474–75 (3d Cir. 

2015); Diop v. ICE/Homeland Sec., 656 F.3d 221, 233 (3d Cir. 

2011). Under those decisions, he argued, he was entitled to a 

bond hearing.

The District Court disagreed. It explained that the Supreme 

Court’s 2018 decision in Jennings v. Rodriguez had abrogated 

Diop and Chavez-Alvarez. German Santos v. Lowe, No. 1:18-

cv-01553, 2019 WL 1468313, at *3 (M.D. Pa. Apr. 3, 2019)

(analyzing Jennings v. Rodriguez, 138 S. Ct. 830 (2018)). Jennings rejected the argument that the text of §1226(c) limited 

detention. See 138 S. Ct. at 846–47. Thus, the District Court 

reasoned, our precedents did not entitle German Santos to a 

bond hearing. 2019 WL 1468313, at *3.

Still, the court recognized that Jennings had not reached the 

merits of the constitutional challenge to prolonged detention 

without a bond hearing under §1226(c). Id.; Jennings, 138 S. 

Ct. at 838–39. So it construed German Santos’s claim as an asapplied challenge to §1226(c) and looked to Diop’s and 

Chavez-Alvarez’s constitutional analyses for guidance. 2019 

WL 1468313, at *3–4.

Under those cases, the court explained, German Santos’s 

detention without a bond hearing (then fifteen months long) 

was constitutional. 2019 WL 1468313, at *4. It found no evidence that the Government had “improperly or unreasonably 
7

delayed the regular course of proceedings, or that [it] ha[d] detained him for any purpose other than the resolution of his removal proceedings.” Id. (internal quotation marks omitted). It 

thus denied his habeas petition. German Santos timely appealed. 

Shortly before we heard oral argument, the Board issued its 

decision on remand. Changing course, it held that German Santos’s conviction was not an aggravated felony. It then remanded to the immigration judge for a hearing on his application for cancellation of removal. Eventually, the immigration 

judge denied that application, leaving German Santos in 

prison. As of today, he has been detained for two years and 

seven months without a bond hearing.

D. This appeal

On appeal of the denial of his habeas petition, German Santos first argues that Jennings did not abrogate Diop’s and 

Chavez-Alvarez’s constitutional analyses. Under those cases, 

he argues, his detention has grown unreasonable for three reasons: (1) it has spanned more than two years, (2) his removal 

proceedings are likely to continue for many more months, and 

(3) the Board and immigration judge’s repeated legal errors delayed the proceedings by prompting an appeal and a petition 

for review. To remedy this alleged due-process violation, he 

asks for a bond hearing at which the Government must justify 

his continued detention under §1226(c) by clear and convincing evidence. 
8

The Government disagrees. It says that the District Court 

correctly held that Jennings abrogated Diop and Chavez-Alvarez. But like the District Court, it recognizesthat in some cases,

an alien detained under §1226(c) can bring an as-applied challenge to his detention. Still, it argues, German Santos’s as-applied challenge fails because: (1) he delayed the proceedings 

by appealing and pursuing relief from removal, (2) he has no 

right to discretionary cancellation of removal, and (3) his detention, even if prolonged, still serves a legitimate purpose. 

The District Court had jurisdiction under 28 U.S.C. §§1331 

and 2241, and we do under §1291. Because the District Court 

did not conduct an evidentiary hearing, we review its denial of 

the habeas petition de novo. Bruce v. Warden Lewisburg USP, 

868 F.3d 170, 183 (3d Cir. 2017).

II. ALIENS CAN BRING AS-APPLIED CHALLENGES TO 

THEIR DETENTION UNDER 8 U.S.C. §1226(C)

Before addressing German Santos’s challenge, we must 

clarify some confusion about the limits on detention under 

§1226(c) and where those limits come from. Faced with asapplied challenges under that provision, we have held that the 

Due Process Clause limits detention without a bond hearing to 

a “reasonable” period. Chavez-Alvarez, 783 F.3d at 474–75; 

Diop, 656 F.3d at 233. But in those cases, we also invoked the 

constitutional-avoidance canon to construe the statute as limiting detention without a bond hearing. Chavez-Alvarez, 783 

F.3d at 475; Diop, 656 F.3d at 231. So after the Supreme Court 

held in Jennings that §1226(c) does not limit the length of detention, district courts in this Circuit have disagreed about 
9

whether aliens can still bring as-applied challenges to their detention under that statute. See 138 S. Ct. at 846.

We hold that they can. Though Jennings abrogated our construction of the statute as implicitly limiting detention without 

a bond hearing, it left our framework for as-applied constitutional challenges intact.

A. The Due Process Clause limits detention under 

8 U.S.C. §1226(c) 

To understand our case law on §1226(c), we must start with 

the decision driving those cases: Demore v. Kim, 538 U.S. 510 

(2003). There, the Supreme Court rejected a facial challenge 

to the statute’s requirement of detention without a bond hearing. Id. at 531. The Court did so because it understood that the 

detention would last only for a “very limited time.” Id. at 529 

n.12. Relying on the Government’s representations, the Court 

explained that detention “under §1226(c) lasts roughly a month 

and a half in the vast majority of cases” and “about five months 

in the minority of cases in which the alien chooses to appeal.” 

Id. at 530.

In his concurrence, Justice Kennedy extended the majority’s logic to as-applied challenges. He noted that due process 

bars the Government from depriving people of liberty arbitrarily. Demore, 538 U.S. at 532 (Kennedy, J., concurring). So 

once “continued detention be[comes] unreasonable or unjustified,” he reasoned, “a lawful permanent resident alien” could 

be “entitled to an individualized determination as to his risk of 

flight and dangerousness.” Id. Because he read the majority’s 
10

discussion of the facial challenge as consistent with that premise, he cast the fifth vote. Id. at 533.

Eight years later, in Diop, we faced an as-applied challenge 

to detention under §1226(c). There, we distilled the following 

rule from Demore: Though the Government must detain aliens 

convicted of certain crimes at the start of their removal proceedings, “the constitutionality of this practice is a function of 

the length of the detention.” Diop, 656 F.3d at 232. “At a certain point,” we explained, “continued detention becomes unreasonable and ... unconstitutional unless the Government has 

justified its actions at a hearing.” Id.

We later explained in Chavez-Alvarez why the constitutionality of detention under §1226(c) depends on its length. When 

an alien is first detained, we can presume that detention is 

needed to prevent flight or danger to the community. ChavezAlvarez, 783 F.3d at 474. The benefit of detaining these aliens 

as a class outweighs their “short-term deprivation of liberty.” 

Id. Eventually, though, that burden “outweighs a mere presumption that the alien will flee” or pose a danger. Id. at 474–

75. “At this tipping point,” we said, due process requires the 

Government to justify continued detention at a bond hearing. 

Id. at 475, 478.

Though Diop and Chavez-Alvarez decided that due process 

restricts detention under §1226(c), both cases also invoked the 

constitutional-avoidance canon. In Diop, we relied on this 

canon to hold that §1226(c) “implicitly authorizes detention 

for a reasonable amount of time, after which the authorities 

must make an individualized inquiry into whether detention is 

still necessary to fulfill the statute’s purposes.” 656 F.3d at 231. 
11

We repeated this same sentence in Chavez-Alvarez. 783 F.3d 

at 475 (quoting Diop, 656 F.3d at 231).

Thus, when the Supreme Court later held that §1226(c) on 

its face does not limit detention, confusion arose about whether 

aliens lawfully present can still bring as-applied challenges to 

their detention. We now hold that they can.

B. Jennings did not foreclose as-applied constitutional 

challenges to detention under §1226(c)

The Supreme Court clarified the scope of the Government’s 

authority to detain aliens under §1226(c) in Jennings. There, 

the Court rejected the Ninth Circuit’s use of the constitutionaldoubt canon to construe §1226(c) as implicitly limiting detention without a bond hearing. Jennings, 138 S. Ct. at 842, 846. 

Instead, the Court held, “§1226(c) does not on its face limit the 

length of the detention it authorizes.” Id. at 846. In so holding, 

Jennings abrogated our earlier reliance on the constitutionalavoidance canon to read §1226(c) as providing a right to a 

bond hearing. See Chavez-Alvarez, 783 F.3d at 475; Diop, 656 

F.3d at 231.

But even though the Court foreclosed reading the statutory 

text as guaranteeing periodic bond hearings, it reserved the aliens’ constitutional claims for remand. Jennings, 138 S. Ct. at 

851. One of those claims was that due process forbids prolonged confinement under §1226(c) without a bond hearing. 

Respondents’ Br. 17–32, Jennings, 138 S. Ct. 830 (No. 15-

1204), 2016 WL 6123731. Jennings thus left our framework 

for assessing as-applied constitutional challenges intact. In 

holding otherwise, the District Court erred.
12

The Government makes two arguments to the contrary, but 

neither is persuasive. First, it reads our pre-Jennings precedent 

as rooted solely in the statutory text. While it concedes that 

Diop addressed “the constitutionality of §1226(c),” it says that 

Diop did so only in construing the statute. Appellee’s Br. 20.

True, Diop and Chavez-Alvarez could have simply noted 

the constitutional questions, invoked the constitutional-doubt 

canon, and decided the cases on pure statutory grounds. But 

they went further. The cases answered the constitutional questions, concluding that §1226(c) would be invalid unless we 

read it to guarantee a bond hearing once detention becomes unreasonable. So the cases chose the saving construction. That 

was not dictum, but part of the reasoning. 

And while Jennings rejected that construction as a reading 

of the text, it did not touch the constitutional analysis that led 

Diop and Chavez-Alvarez to their reading. That analysis 

stands. We are thus bound by Diop and Chavez-Alvarez’s decision that §1226(c) is unconstitutional when applied to detain 

an alien unreasonably long without a bond hearing. See Borbot 

v. Warden Hudson Cty. Corr. Facility, 906 F.3d 274, 278 (3d 

Cir. 2018) (recognizing that Diop had a constitutional holding); 

Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d 208, 

222 n.11 (3d Cir. 2018) (same). 

The Government also points to a recent Sixth Circuit decision holding that Jennings fully abrogated one of its earlier 

§1226(c) cases. But unlike Diop and Chavez-Alvarez, the Sixth 

Circuit’s pre-Jennings precedent had relied solely on constitutional avoidance, choosing not to confront the due process 

question. See Ly v. Hansen, 351 F.3d 263, 267, 270 (6th Cir. 
13

2003) (“constru[ing]” §1226(c) as limiting detention to 

“save[] the statute from constitutional challenge”). Thus, as 

that court later recognized, “Ly did not survive Jennings” because it had “turned on a constitutional avoidance reading of 

§1226(c), one that Jennings expressly foreclosed.” Hamama v. 

Adducci, 946 F.3d 875, 879–80 (6th Cir. 2020). While Ly had 

avoided the constitutional issue, our pre-Jennings precedents

confronted and resolved it. Chavez-Alvarez, 783 F.3d at 474–

75; Diop, 656 F.3d at 232.

In sum, even after Jennings, an alien lawfully present but

detained under §1226(c) can still challenge his detention under 

the Due Process Clause. That is exactly what German Santos 

did here.

III. DUE PROCESS AFFORDS ALIENS DETAINED UNDER 

§1226(C) A BOND HEARING ONCE DETENTION 

BECOMES UNREASONABLE

As our constitutional analyses in Diop and Chavez-Alvarez

are still good law, those cases govern as-applied challenges under §1226(c). There, we held that “when detention becomes 

unreasonable, the Due Process Clause demands a hearing.” 

Diop, 656 F.3d at 233; accord Chavez-Alvarez, 783 F.3d at 

474–75. Reasonableness is a “highly fact-specific” inquiry. 

Chavez-Alvarez, 783 F.3d at 474. Together, Diop and ChavezAlvarez give us a nonexhaustive list of four factors to consider 

in assessing whether an alien’s detention has grown unreasonable. 

The most important factor is the duration of detention. See 

Chavez-Alvarez, 783 F.3d at 475–78; Diop, 656 F.3d at 233–
14

34. We begin there because the Supreme Court in Demore rejected a facial challenge to §1226(c) based on the Government’s representation that detention lasts between one-and-ahalf and five months. 538 U.S. at 529–30. Extending Demore’s 

logic to as-applied challenges, we explained that detention “becomes more and more suspect” after five months. Diop, 656 

F.3d at 234. In Diop, we held that the two-year-and-elevenmonth detention of an alien who had been granted withholding 

of removal was unreasonable. Id. at 233–34. And in ChavezAlvarez, we held that a lawful permanent resident’s detention 

became unreasonable sometime between six months and one 

year. 783 F.3d at 478; accord Leslie v. Att’y Gen. of the U.S., 

678 F.3d 265, 271 (3d Cir. 2012) (requiring a bond hearing for 

a lawful permanent resident who had been detained for four 

years).

To be sure, we do not read Demore, Diop, and Chavez-Alvarez as setting a bright-line threshold at five months, six 

months, or one year. On the contrary, we explicitly declined to 

adopt a presumption of reasonableness or unreasonableness of 

any duration. Chavez-Alvarez, 783 F.3d at 475 n.7; Diop, 656 

F.3d at 234. Nor will we do so here.

Instead, we evaluate duration along with all the other circumstances, including these three other factors:

First, we consider whether the detention is likely to continue. See Chavez-Alvarez, 783 F.3d at 477–78. When the alien’s removal proceedings are unlikely to end soon, this suggests that continued detention without a bond hearing is unreasonable. See id.
15

Second, we look to the reasons for the delay, such as a detainee’s request for continuances. Diop, 656 F.3d at 234; see

Demore, 538 U.S. at 531 (upholding a “longer than the average” six-month detention because the alien had asked for a continuance). We also ask whether either party made careless or 

bad-faith “errors in the proceedings that cause[d] unnecessary 

delay.” Diop, 656 F.3d at 234.

But we do not hold an alien’s good-faith challenge to his 

removal against him, even if his appeals or applications for relief have drawn out the proceedings. Chavez-Alvarez, 783 F.3d 

at 476–77. Doing so, and counting this extra time as reasonable, would “effectively punish [an alien] for pursuing applicable legal remedies.” Id. at 475 (quoting Leslie, 265 F.3d at 

271). Nor do we hold the agency’s legal errors against the Government, unless there is evidence of carelessness or bad faith. 

Cf. Diop, 656 F.3d at 234. That said, detention under §1226(c) 

can still grow unreasonable even if the Government handles 

the removal proceedings reasonably. See Chavez-Alvarez, 783 

F.3d at 475.

Third, we ask whether the alien’s conditions of confinement are “meaningfully different[] ” from criminal punishment. Chavez-Alvarez, 783 F.3d at 478. Removal proceedings 

are civil, not criminal. Zadvydas v. Davis, 533 U.S. 678, 690 

(2001). So if an alien’s civil detention under §1226(c) looks 

penal, that tilts the scales toward finding the detention unreasonable. Chavez-Alvarez, 783 F.3d at 478. And as the length of 

detention grows, so does the weight that we give this factor. Id.
16

IV. GERMAN SANTOS’S DETENTION UNDER §1226(C)

IS UNREASONABLE

With this framework to guide us, we now turn to assessing 

German Santos’s detention. Given its length, likelihood of continuing, and conditions, it has become unreasonable.

A. Duration

German Santos’s detention is already more than two-anda-half years long. It is five times longer than the six months 

that Demore upheld as only “somewhat longer than the average.” 538 U.S. at 530–31. It is more than double the six-monthto-one-year period that triggered a bond hearing in Chavez-Alvarez. 783 F.3d at 477. And it is approaching the thirty-fivemonth detention that we found unreasonable in Diop. 656 F.3d 

at 226, 235. The length thus weighs strongly in German Santos’s favor.

B. Likelihood of continued detention

German Santos is also likely to stay detained for some time. 

Shortly after oral argument in this appeal, an immigration 

judge denied his application for cancellation of removal. He 

reserved his right to appeal to the Board and has thirty days to 

do so. This means he will stay in prison as long as it takes the 

Board to issue its decision. As with his first two appeals, that 

could take months. And if the Board dismisses his appeal, he 

may petition this Court for review. 8 U.S.C. §1252(a)(5). That 

too would add months more in prison. So the likelihood that 

his detention will continue strongly supports a finding of unreasonableness.
17

C. Reasons for the delay

The reasons for the delay do not cut one way or the other. 

German Santos claims that the immigration judge and Board 

delayed the proceedings by making “repeated legal errors.” 

Appellant’s Br. 27. The agency, he says, erred in applying the 

modified categorical approach and treating his underlying conviction as an aggravated felony. 

True, the Government moved to remand to let the Board 

reconsider that issue, and eventually the Board changed its 

mind. But these alleged errors are not the kind of careless or 

bad-faith mishaps that we hold against the Government. Take 

Diop. In that case, we found unnecessary delay based on two 

facts: First, the immigration judge repeatedly issued decisions 

that were so unclear that they required remands for clarification. Diop, 656 F.3d at 224–25. Second, the Government was 

slow to produce evidence relevant to whether Diop was 

properly detained. Id. at 234. Nothing like that happened here. 

Absent carelessness or bad faith, we will not scrutinize the 

merits of immigration proceedings and blame whichever party

has the weaker hand. “No system of justice can be error-free, 

and those errors require time to fix.” Id.

By the same token, we will not hold German Santos’s appeals and applications for discretionary relief against him either. See Chavez-Alvarez, 783 F.3d at 476–77. And though he 

delayed the proceedings by failing to pay the filing fee the first 

time he appealed to the Board, that lapse set him back nine 

days, just a drop in the bucket compared to his nine-hundredplus-day detention. Cf. Leslie, 678 F.3d at 271 (discounting a 

five-week continuance relative to a four-year detention). Nor 
18

did he seek any substantial continuances. So this factor does 

not favor either side.

D. Conditions of confinement

Finally, “we cannot ignore the conditions of confinement.” 

Chavez-Alvarez, 783 F.3d at 478. German Santos has been detained in prison alongside convicted criminals since late 2017. 

Despite its civil label, his detention is indistinguishable from 

criminal punishment. Id. And at oral argument, the Government represented that he is currently confined to his cell for 

twenty-three hours per day. Those conditions strongly favor a 

finding of unreasonableness.

* * * * *

As of today, German Santos has been detained for more 

than two-and-a-half years. That is an unreasonably long time, 

and there is no end in sight. All the while, he has been in prison. 

Although neither side is to blame for the delay, the other three 

factors compel us to hold that German Santos’s detention has 

grown unreasonable. He is thus entitled to a bond hearing to 

gauge whether he still needs to be detained to keep him from 

fleeing or committing more crimes. See Demore, 538 U.S. at 

532–33 (Kennedy, J., concurring); Chavez-Alvarez, 783 F.3d 

at 477–78; Diop, 656 F.3d at 233. 

V. AT §1226(C) BOND HEARINGS, THE GOVERNMENT 

MUST JUSTIFY CONTINUED DETENTION BY

CLEAR AND CONVINCING EVIDENCE

Next, we must discuss the procedures that govern the bond 

hearing. We have already held that the Government bears the 
19

burden of proof. That burden, we now hold, is to justify detention by clear and convincing evidence.

A. At §1226(c) bond hearings, the Government bears 

the burden of persuasion

The Government argues that German Santos should bear 

the burden of disproving his flight risk and danger to the community. But we have already decided that the Government 

bears the burden of justifying an alien’s continued detention 

under §1226(c). Diop, 656 F.3d at 233, 235; see Borbot, 906 

F.3d at 279 (discussing Diop). We are bound by this precedent.

B. The Government must justify continued detention 

under §1226(c) by clear and convincing evidence 

Though our precedents have placed the burden of proof on 

the Government, we have not yet decided what that burden entails. We now hold that once detention under §1226(c) has become unreasonable, the Government must put forth clear and 

convincing evidence that continued detention is necessary.

A standard of proof “serves to allocate the risk of error between the litigants” and reflects the “relative importance attached to the ultimate decision.” Addington v. Texas, 441 U.S. 

418, 423 (1979). Thus, choosing the appropriate standard of 

proof here requires us to balance the alien’s liberty interest, the 

risk of error to him, and the Government’s interest in detaining 

criminal aliens until the end of their removal proceedings. See

id. at 425 (citing Mathews v. Eldridge, 424 U.S. 319, 335 

(1976)).
20

When the Government seeks to take more than just money

from a party, we typically hold the Government to a standard 

of proof higher than a preponderance of the evidence. See, e.g., 

United States v. Salerno, 481 U.S. 739, 741 (1987) (criminal 

pretrial detention); Addington, 441 U.S. at 432–33 (involuntary 

civil commitment for mental illness). In ordinary civil cases, 

each side has the same skin in the game. So it makes sense to 

allocate the risk of error evenly between the two parties. Addington, 441 U.S. at 423. But when someone stands to lose an 

interest more substantial than money, we protect that interest 

by holding the Government to a higher standard of proof. Id. at 

424.

We applied this rule in a similar context: bond hearings for 

aliens detained under 8 U.S.C. §1231(a)(6). Under that statute, 

the Government can detain certain aliens beyond the ninetyday removal period for the time “reasonably necessary to bring 

about that alien’s removal.” Zadvydas, 533 U.S. at 689. We 

have held that aliens facing “prolonged detention” under 

§1231(a)(6) are entitled to a bond hearing at which the Government must justify the alien’s continued detention by clear 

and convincing evidence. Guerrero-Sanchez, 905 F.3d at 224 

& n.12. Because the alien’s potential loss of liberty is so severe, 

we reasoned, he should not have to share the risk of error 

equally. Id. 

Though Guerrero-Sanchez addressed another provision of 

the Immigration and Nationality Act, we find its guidance persuasive here. Whether the bond hearing occurs before or after 

a final order of removal, the alien stands to lose his physical 

freedom, even if temporarily.
21

To be sure, an alien’s detention is likely to be longer under 

§1231(a)(6) than under §1226(c). While detention after a removal order has no built-in end date, detention before a removal order ends at the close of proceedings. See Zadvydas, 

533 U.S. at 687; Demore, 538 U.S. at 527–29. So the cost of 

error could be lower at §1226(c) bond hearings. Even so, we 

see no basis for abandoning the settled rule that when a party 

stands to lose his liberty, even temporarily, we hold the Government to a higher burden of proof. See Salerno, 481 U.S. at 

741. Following Guerrero-Sanchez’s lead, we will not depart 

from that rule today.

Thus, at German Santos’s bond hearing, the Government

bears the burden of persuasion by clear and convincing evidence. That evidence must be individualized and support a 

finding that continued detention is needed to prevent him from 

fleeing or harming the community. Chavez-Alvarez, 783 F.3d 

at 477–78.

* * * * *

German Santos has now spent more than two-and-a-half 

years behind bars waiting for his removal proceedings to end.

And there is no end in sight. Because his detention has grown 

unreasonable, the Government must hold a bond hearing. To 

justify his continued detention, it must show, by clear and convincing evidence, that German Santos would likely flee or pose 

a danger to the community if released. If it cannot, it must release him. We will thus reverse and remand for the District 

Court to order a bond hearing within ten days of the entry of 

this Court’s judgment. The mandate will issue at once.