In an opinion today, Judge Furman ruled that, under the Due Process Clause, it is the Government that must bear the burden, in immigration proceedings, to justify the continued detention of people subject to deportation.

He found that, in weighing the Government’s interests of ensuring an appearance by the person subject to deportation against that person’s liberty interests, “the greater risk of error” should fall to the Government, and that “[s]everal other considerations” reinforced the point:

First, as a general proposition, it makes more sense to impose the greater risk of error on the party that seeks to change the legal status quo, the Government here.

Second, placing the burden on the Government, like raising the standard of proof, is one way to impress the factfinder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate commitments will be ordered.

And third, for a number of reasons, the Government is generally in a better position than a detained alien to gather and present evidence relevant to the bond determination.