The burden of proof for whether a detained immigrant should be released on bond falls on the government and not the person in custody, a federal appeals court has confirmed in a major immigration rights case.
In 2019, the ACLU of New Hampshire challenged a long-standing practice of U.S. Immigration and Customs Enforcement to require detained immigrants to prove to an immigration judge they aren’t a flight risk or danger to the public.
The civil liberties group argued the practice violated constitutional due process protections, which extend to non-citizens. Instead, the ACLU argued that the government needed to prove to a judge why the detained immigrant should be denied bond.
After a federal court judge in New Hampshire sided with the ACLU, the government appealed to the U.S. First Circuit Court, which, in a 2-1 ruling issued last week, confirmed the lower court’s ruling.
“The government cannot just take away a person’s liberty even, including a non-citizen’s liberty, without showing it is necessary to do so,” SangYeob Kim, an immigration attorney with the ACLU, said. “If the government wants to detain an asylum seeker or an immigrant, then they have to show why they should be detained, not the other way.”
Lawyers for the government argued that detained immigrants suffer no due process violations because they are granted a bond hearing.
The case centered on Ana Ruth Hernandez-Lara, 34, an asylum-seeker from El Salvador who was incarcerated in 2018. Hernandez-Lara was initially unable to prove she wasn’t a flight risk or danger to the public and was held in the Strafford County House of Corrections. The ACLU successfully appealed Hernandez-Lara’s case, eventually resulting in her release on bond while her asylum request works its way through the courts.
According to the ACLU, the federal court ruling extends beyond Hernandez-Lara’s case, meaning the burden of proof now falls on the government for all immigration bond hearings in Boston.
Manchester-based law firm Sheehan Phinney also represented Hernandez-Lara.
