The beast of burden in immigration bond hearings.

• Author: Holper, Mary

CONTENTS

INTRODUCTION I. AN UNSUPPORTED BURDEN SHIFT A. Burdens of Proof for the "Presumptively Unbailable" Detainees B. Burdens of Proof for the Non "Presumptively Unbailable" Detainees II. DUE PROCESS AND THE BURDEN OF PROOF IN CIVIL DETENTION A. Supreme Court on Burdens in Civil Detention B. Is There Something Special About Immigration Detention? C. The Supreme Court's Next Chapter: Jennings v. Rodriguez III. THE BURDEN OF PROOF IN BOND HEARINGS: THE OUTLIER A. Why Burdens of Proof Exist B. Justifying the Government's Burden C. Responding to Critics CONCLUSION INTRODUCTION

"In all kinds of litigation it is plain that where the burden of proof lies may be decisive of the outcome." (1)

This term, in the case of Jennings v. Rodriguez, (2) the Supreme Court will consider whether mandatory detention applies to noncitizens whose removal proceedings have become prolonged. Should the Court grant these detainees a right to a bond hearing, it will decide who should bear the burden of proof at that hearing. Currently, the approximately 60,000 detainees per year who are eligible for a bond hearing (3) must bear the burden of proving that they are not a danger to the community or a flight risk. The government, which took away their liberty, need not justify why they should remain detained. Yet, in the removal proceedings in which these bond hearings take place, the government must prove removability by clear and convincing evidence. (4) It is the government that seeks law's intervention in both contexts, (5) yet it only needs to justify its deportation decision, not its detention decision.

In this Article, I examine the burden of proof in bond proceedings. I apply theories for why burdens of proof exist in the law to demonstrate why the government should bear the burden of proof. I also argue that in order to ensure that such detention comports with Due Process, the government must prove, by clear and convincing evidence, that a detainee is dangerous and a flight risk. This presumption of freedom previously existed, yet was eviscerated by the former Immigration and Naturalization Service in a 1997 regulation and the Board of Immigration Appeals in a 1999 decision. Although the idea that the detainee must bear the burden of proof in bond hearings has become the norm, this Article seeks to explain how this burden shift occurred and, in doing so, exposes this troubling aspect of today's bond hearings.

This Article examines a problem that is understudied in the scholarship. Many have examined the constitutionality of mandatory detention, the product of a 1996 statute whereby certain classes of detainees, primarily those who are removable for criminal conduct, may be held with no bond hearing. (6) Alina Das has discussed why placing the burden of proof on the detainee is problematic as an institutional design because pro se detainees often do not have access to the information needed to prove they are not a danger or a flight risk. (7) Denise Gilman has argued that the burden allocation in bond hearings is unconstitutional. She has focused her critique on how the immigration detention system has failed to incorporate the movement away from monetary bonds and toward empirical study of risk factors in the criminal pretrial detention system. (8) This scholarship does not, however, discuss why the burdens of proof between deportation and detention do not align, nor how theories behind the burden of proof allocation justify a government-borne burden of proof in bond hearings. (9) Still others have argued that immigration detention itself is punishment, (10) critiquing our "civil" detention system as not truly "civil" at all. (11) In this Article, rather than questioning the Supreme Court's classification of immigration detention as civil, I use these decisions to argue that, to be consistent with decisions concerning civil detention, the government should bear the burden of proof in bond proceedings.

The burden of proof in bond hearings has started to receive some attention from courts. (12) Advocates have spent two decades fighting for the right to a bond hearing; thus, as in the scholarship, mandatory detention has been the primary dragon to slay. (13) Thanks to numerous successful court challenges, many detainees have won the right to a bond hearing before an immigration judge. (14) We are now at a time when courts are considering the procedures and substance of bond hearings. (15) It is unsurprising that the Court, when it accepted certiorari in Jennings v. Rodriguez chose a case involving both the reach of the mandatory detention statute and a procedural aspect of those hearings, namely, the burden of proof. (16) For this reason, this Article is particularly timely.

This Article proceeds in three parts. Part I explains how the Board of Immigration Appeals (Board) originally held that there should be a presumption of liberty, and that the government must prove dangerousness and flight risk to justify detention. Only for certain categories of removable noncitizens, such as those removable for certain criminal convictions and terrorism, did Congress write in a legislative presumption against liberty, explicitly placing the burden of proof on the detainee. In 1997, however, the former Immigration and Naturalization Service (INS) wrote a regulation placing the burden on the detainee in initial custody determinations made by the INS (this decision is now made by the Immigration and Customs Enforcement Agency (ICE) within the Department of Homeland Security (DHS)). In 1999, the Board extended the burden-shifting of this regulation to bond hearings, where an immigration judge reviews that initial custody determination. In Part II, I briefly describe other areas of civil detention, where, in order to survive a Due Process challenge, the burden of proof must be on the government. Part II also discusses key immigration detention cases decided by the Supreme Court to demonstrate that there is nothing special about immigration detention to justify a detainee-borne burden of proof. In Part III, I examine the misaligned burdens of proof and argue that if the government must prove removability by clear and convincing evidence, then the government also must prove a need to detain during that removal process. I apply theories of why burdens of proof exist in the law to argue that in bond hearings, the government must bear the burden by clear and convincing evidence.

1. AN UNSUPPORTED BURDEN SHIFT

   Historically, the statutes authorizing immigration detention did not clarify who bore the burden of proof. (17) Neither did the regulations implementing these statutes. (18) In 1976, the Board filled in the statutory void, deciding In re Patel, (19) which established a presumption against detention. The Board wrote, "[a]n alien generally is not and should not be detained or required to post bond except on a finding that he is a threat to the national security ... or that he is a poor bail risk." (20) The Board reaffirmed this presumption in numerous cases. (21) Although the Board in Patel was not long on analysis when it set forth its presumption of freedom in bond determinations, one can certainly see the constitutional backdrop to the presumption of freedom. (22) Earlier Board decisions that dealt with detention once a noncitizen had been ordered deported provided stronger Due Process rhetoric behind a presumption of freedom. (23)

   1. Burdens of Proof for the "Presumptively Unbailable" Detainees

      In a series of amendments to the Immigration and Nationality Act (INA), (24) Congress created what I call "presumptively unbailable" detainees.' (25) The early mandatory detention statutes were the first provisions of the INA to address the burden of proof for custody purposes. The Anti-Drug Abuse Act of 1988 created a new concept--the "aggravated felony," then defined to include only murder, drug trafficking, and firearms trafficking--and carved out special provisions mandating the detention of any alien who had been convicted of such an offense. (26) By using the term "aggravated felony," which, according to one Board member, "manages to mislead, to alarm, to distort, and to dehumanize," (27) Congress set the stage for presuming all such persons to be dangerous. (28) Because Congress also made "aggravated felony" a ground for deportation, it set the stage for presuming flight risks of these noncitizens (because a noncitizen who was certainly deportable was less likely to appear for a hearing). (29)

      In 1990, Congress changed the law to direct the Attorney General to release lawful permanent residents (LPRs) upon determining "that the alien is not a threat to the community and that the alien is likely to appear before any scheduled hearings." (30) Although the statutory text was silent on the issue, the Board read this provision to establish a presumption against the release of such a noncitizen, unless he rebutted this presumption by showing his eligibility for release. (31) The Board reasoned that it would be "unreasonable to conclude that the statute requires the Service to take into custody an alien convicted of an aggravated felony, and then requires the Service to attempt to demonstrate that the alien 'is not' a threat to the community and 'is likely' to appear for any scheduled hearings." (32)

      A further amendment in 1991 expanded the category of persons entitled to individual review to include any alien who had been lawfully admitted--whether temporarily or permanently--thus leaving only entrants without inspection subject to the detention mandate. The amended provision also clearly put the burden of proof on the noncitizen to establish his eligibility for release. (33) Thus, the statute imposed a presumption in favor of detention for aggravated felons and assigned the burden of proof to the noncitizen to show eligibility for release in the case of a lawfully admitted noncitizen facing removal due to an aggravated felony conviction. The...