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Maryam Saleh, The Intercept, Jan. 6, 2020
"For the first time in at least two decades, lawyers for U.S. Immigration and Customs Enforcement are required to justify the detainment of noncitizens who are awaiting court proceedings in New England.
In immigration proceedings, unlike in criminal courts, immigrants bear the burden of proving to the satisfaction of a judge that that they do not pose a danger or a flight risk — or else they are denied bond and locked up. But a November decision by a judge in the U.S. District Court for the District of Massachusetts reversed the burden of proof, instead calling on ICE to establish why someone ought to be detained.
The ruling came in a class-action lawsuit filed by the American Civil Liberties Union of Massachusetts last June and went into effect on December 13.
The significance of the ruling, said ACLU of Massachusetts attorney Dan McFadden, is reversing a system that’s been in place since 1999 whereby the government did not have to prove anything to keep noncitizens in jail while their cases were decided — a process that sometimes takes several years. “I think that if our Constitution means anything,” McFadden said, “it has to mean that the government can’t put people in jail without showing that there’s a strong justification for taking away their liberty.”
he ruling applies only to the Boston immigration court, which covers all of New England except Connecticut (which has its own immigration court). Local immigration attorneys say the difference is palpable already.
“It still doesn’t really feel quite real,” said Matt Cameron, a Boston-based immigration attorney. For years, Cameron said, he has had to work quickly to obtain every page of a client’s criminal record — even pertaining to charges that had been dropped — to prove that the client deserved their liberty. “I’m so trained that you just do not show up with anything less than an absolutely 100 percent complete case, because you only get one chance at a bond hearing. You don’t get to do it again. So, you know, I’m always very careful in making sure that I don’t do it halfway.”
Now, if an ICE attorney is unable to prove the inverse — that a noncitizen poses a danger or a flight risk — a noncitizen is likely to be granted release."