The United States Court of Appeals for the First Circuit confirmed yesterday that the government must bear the burden of proof in immigration bail hearings. The decision affirms a key holding in a landmark class action filed in Boston federal court in 2019 by the ACLU of Massachusetts, the ACLU of New Hampshire, the National ACLU, and Boston law firm Mintz.  

Many immigrants are eligible for release on bail or conditions during their immigration court proceedings. In 1999, the Immigration Courts initiated a “detention by default” system, in which the government jailed people for the duration of their immigration proceedings without making any showing that that detention was necessary. Instead, to secure release, the immigrant bore the burden to prove a negative: that they are not a danger or flight risk.  

In 2018, the ACLU and its cooperating counsel successfully advocated in an individual case in Boston federal court that the government must bear the burden of proof in immigration bond hearings. The government, however, continued its unlawful practices. Consequently, in 2019, the ACLU and Mintz secured a first-of-its-kind class action victory that ended the government’s “detention by default” practice throughout New England. The Trump administration appealed that class action victory in 2020. While that appeal was pending, the court of appeals ruled that the government must bear the burden of proof in an individual case brought by the ACLU of New Hampshire.  

Dan McFadden, staff attorney at the ACLU of Massachusetts, today released the following statement in response to the new First Circuit decision:

“For 20 years, immigration authorities systematically jailed people in violation of their constitutional right to due process of law. This new decision confirms that the federal court in Boston correctly put an end to two decades of flawed proceedings in the immigration courts that unlawfully deprived countless people of their liberty. Thousands of immigrants throughout New England have already benefited from this class action victory, and we are gratified that the court’s declaration will continue to protect many more people for years to come.”

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