DECISION & ORDER The petitioner, Denny Molina Cantor, has been detained in the custody of the United States Department of Homeland Security (“DHS”), Immigration and Customs Enforcement (“ICE”), since November 16, 2021 — more than three years. Docket Item 1 at
7, 50. On August 15, 2024, Cantor filed a petition for a writ of habeas corpus under 28 U.S.C. §2241 challenging his ongoing detention at the Buffalo Federal Detention Facility in Batavia, New York, and requesting either his immediate release or a “constitutionally adequate” bond hearing. Docket Item 1 at 1,1 29, and 7. The government agreed to provide Cantor with an individualized bond hearing at which the government would bear the burden of proving, by clear and convincing evidence, that Cantor “poses a future danger to the community or a flight risk.” Docket Item 5 at 1. The government also agreed that, in determining whether Cantor poses a flight risk, the immigration judge (“IJ”) conducting the bond hearing must consider whether that risk of flight could be ameliorated by reasonable conditions of supervision. Id. But the government disagreed that the IJ also must consider whether alternatives to detention mitigated Cantor’s danger to the community. Id. at 2. In this context, this Court previously has held that due process mandates that a neutral decisionmaker consider whether alternatives to detention could satisfy the government’s interest in mitigating any potential danger to the community posed by a noncitizen detainee. See, e.g., Davis v. Garland, 2023 WL 1793575, at *2 (W.D.N.Y. Feb. 7, 2023); Hechavarria v. Whitaker, 358 F. Supp. 3d 227, 241-42 (W.D.N.Y. 2019). Nevertheless, the government argues that the Second Circuit’s opinion in Black v. Decker, 103 F.4th 133 (2d Cir. 2024), precludes such a remedy and that “due process does not require consideration of alternatives to detention when dangerousness is shown.” Docket Item 8 at 10-11. For the reasons that follow, this Court disagrees with the government and reaffirms its prior decisions. Accordingly, the Court grants Cantor’s petition in part — he must receive an individualized bond hearing at which the government bears the burden of proving, by clear and convincing evidence, that he poses a danger to the community or a flight risk. And at that hearing, a neutral decisionmaker must consider whether alternatives to detention can reasonably address the government’s interest in his continuing detention. FACTUAL AND PROCEDURAL BACKGROUND2 Cantor is a native of Honduras. Docket Item 1 at 25. He entered the United States in 2007 “and has not left since.” Id. In 2017, he “became the father of a…daughter” with United States citizenship. Id. More than a decade after he entered the United States, Cantor “was arrested based on an accusation that he sexually abused the minor daughter…of his then partner.” Id. at 33. He subsequently was indicted for violating New York Penal Law (“NYPL”) §§130.75 (course of sexual conduct against a child in the first degree) and 260.10(1) (endangering the welfare of a child). Docket Item 1 at 33. Prior to trial, Cantor pleaded guilty to endangering the welfare of a child and was sentenced to time served and three years’ probation. Id. at
