January 10, 2020

Boston judge removes burden of proof from immigrants in bond hearings

topic:	Refugees and Asylum
located:	USA
editor:	Yair Oded

In November 2019, a federal judge in Boston ruled that the practice of forcing undocumented immigrants to prove they are not a flight risk or pose a danger to the community during bond hearings is unconstitutional. Instead, the judge ruled, the federal government would have to bear the burden of establishing why the immigrant should be denied bond and placed behind bars until their trial.

In the months following the decision, a growing number of immigrants in the New England area have been released on bond.

The November decision, issued by U. District Court Judge Patti Saris, has repealed a 1999 interpretation by the Board of Immigration Appeals of a statute relating to pretrial detention, according to which non-citizens have to bear the burden of proving that they are worthy of release on bond. The 1999 interpretation of the law was further buttressed by a 2018 Supreme Court decision that made no clear reference as to who should bear the burden of proof in immigration bond hearings. In the same case, the Court ruled that immigrants are not entitled to periodic bond hearings, which meant they had only one chance at being granted bond. 

A class action lawsuit was filed in June 2019 by The ACLU of Massachusetts, claiming that according to the United States constitution it is the government that has to prove why an individual should be denied liberty, and that excluding immigrants in this respect amounts to an unconstitutional violation of their rights. Judge Saris had sided with ACLU, and ruled that attorneys for Immigration and Customs Enforcement (ICE) will have to put together a compelling case as to why an individual must stay behind bars until their immigration trial commences.

Saris also mandated that judges take into account the individual’s ability to pay while setting a bond that exceeds $1,500, as well as consider alternatives to detention, such as GPS monitoring. 

The ruling, which went into effect 13 December 2019, affects immigrants under the jurisdiction of the Boston immigration court, which includes the entirety of New England except for Connecticut. 

Already, immigration attorneys in the Boston area have noted that the ruling has had a tremendous effect, as ICE attorneys are scrambling to put together compelling cases as to why individuals pose a threat to their environment or are likely to disappear before their trial. 

In an interview for The Intercept, ACLU Mass. attorney Dan McFadden said that “The evidence at this point is early and anecdotal, but it appears that greater numbers of people are getting bond rather than being detained, and it appears that in many cases, the bond numbers have been lower.”

ALCU did criticise Saris, however, for enabling the federal government to rely on a lower standard of proof while making the case for an immigrant being a flight risk compared to proving potential danger (in which case they must submit clear and utterly convincing evidence). ACLU argues that the government must be held to the same standard of proof in both cases. 

Saris’ ruling does not fundamentally change the American immigration system, which too often regards immigrants as beings devoid of human rights. Yet, the ruling does pave the way for further improvements in this sphere, by setting an example to other judges in the United States who may follow suit.

It is also expected by some attorneys in the field that Saris’ decision will eventually rekindle the debate on the issue in the Supreme Court and force further clarification on the vagueness of the statute pertaining to which party bears the responsibility of proof in immigration court bond hearings. 

Image: Marco Pomella / Pixabay 

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