In two opinions yesterday (here and here), Judges Furman and Carter concluded that Due Process requires timely, individual bond hearings, with the Government bearing the burden to show a risk of flight, for those awaiting removal hearings.
In the case before Judge Furman, the detainee has been held for 21 months with no hearing. In a previous opinion (covered here), Judge Furman concluded that, given the “liberty interests” at stake, it was appropriate for the Government to bear the burden of proof.
While the Board of Immigration Appeals has a policy of putting the burden on the detainee, Judge Carter’s decision yesterday agreed with Judge Furman that the policy was inconsistent with Due Process:
“No person shall … be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. v. It is axiomatic that an individual must remain from imprisonment, government custody, or detention void of adequate procedural protections. The founding values and fundamental protections promulgated by the Due Process Clause undoubtedly extend to immigrants in the context of deportation proceedings . . . [U]nder the Due Process Clause of the Fifth Amendment, it is the Government’s burden to justify the detention of an immigrant at a bond hearing.