article: This civil rights class action challenges the burden of proof and other procedural issues within immigration court bond hearings. In 2019, U.S. Immigration and Customs Enforcement (ICE) arrested the named plaintiffs in this case and initiated deportation proceedings. ICE placed each one in immigration detention pursuant to 8 U.S.C. § 1226(a), so they were eligible for release on bond. (Under a different statutory provision, 8 U.S.C. 1226(c), applicable based on criminal history or national security grounds, some noncitizens facing deportation are categorically ineligible for bond.) The government’s bond hearings under § 1226(a) placed the burden of proof regarding flight risks or dangers to the community on the detained person, not the government. Some of the named plaintiffs had not been afforded a bond hearing yet; others had been denied bond. This case was filed on June 13, 2019, in the U.S. District Court for the District of Massachusetts as a habeas corpus petition and putative class action complaint against the Department of Justice, which is responsible for operating the immigration courts. Plaintiffs sought to represent a class of detainees detained pursuant to 8 U.S.C. § 1226(a), “either within Massachusetts or otherwise within the jurisdiction of the Boston Immigration Court.” The case was assigned to Chief Judge Patti Saris. Plaintiffs’ lawyers included a private firm, the ACLU National Prison Project, and two state ACLU affiliates (New Hampshire and Massachusetts). Plaintiffs sought declaratory and injunctive relief. They argued that the burden of proof in immigration bond properly lays not on the detainee but on the government. Second, they sought implementation of a “clear and convincing evidence” standard; that is, they argued that bond should be granted unless there was clear and convincing evidence of a safety or flight risk need for ongoing detention. Third, they claimed that alternative conditions of release must be considered by immigration courts. Finally, they claimed that immigration courts must consider detainees’ ability to pay when they set bond. On August 6, 2019, the court certified two classes, each for detainees held under §1226(a)--one for those who had not yet received a bond hearing and the other for those who had received a hearing but had been denied bond. 395 F.Supp.3d 135. On November 27, 2019, Judge Saris ruled on the request for an injunction, granting it in part and denying it in part. First, the Court agreed with the plaintiffs that the burden of proof should be placed on the government to prove that the detainee was dangerous or a flight risk. Second, it held that immigration courts must evaluate detainees' ability to pay. Third, immigration courts must consider alternative conditions of release including GPS monitoring. However, the Court rejected the plaintiffs’ "clear and convincing evidence" proposal, instead of holding that the “preponderance of evidence” standard would apply. The Court rejected plaintiffs’ request for re-dos on all the bond hearings members of the post-hearing class that had lost but ordered the government to report various facts to class counsel including whether a new bond hearing was held under the injunction’s rules. 415 F.Supp.3d 258. Both sides appealed. Plaintiffs sought review of the District Court’s “preponderance of evidence” ruling. The government challenged the rest of the decision. This case is ongoing.
summary: In this class action covering the Boston Immigration Court (which covers immigration detainees in Massachusetts and other parts of New England), the U.S. District Court for the District of Massachusetts ordered numerous procedural changes to immigration court bond hearings. First, the Court put the burden on the government, not the detainee, to prove a flight risk or danger to the public. Second, immigration courts must consider the detainee's ability to pay. Finally, immigration courts must consider alternative conditions of release. Appeal is pending.