1/ A #Boston federal court decided last month for the 1st time in US history that it's ICE's job to prove an ICE detainee is dangerous rather than forcing the detainee to prove a negative. Here's a quick report on how this Boston-only ruling is playing out in my home court.
2/ 1st, I've always found it frankly bizarre that #immigrationcourts required that *detainees* prove that they shouldn't be in ICE custody. This goes against centuries of common law, if not common sense. The govt should *always* have to justify taking someone's liberty. Always.
3/ In practice, putting the burden of proving "non-dangerousness" in #immigrationcourt required us to gather every relevant page of criminal records (including police reports), even for cases which had been dismissed/dropped, in a matter of days. Not my favorite part of the job.
4/ The prior standard also effectively allowed #immigrationjudges to treat every detainee before them as dangerous until proven otherwise. It put a gigantic thumb on the scale, further criminalizing innocent people in non-criminal deportation proceedings.
5/ Just 1 example: a bond hearing in which a detainee had allegedly tried to shoplift a Patriots jersey from Macy's. The case was dismissed (an apparent misunderstanding), but the judge still found that he was a "danger to property" and held him away from his US citizen family
6/ That was the man's entire record. He was married to a US citizen, and had no criminal convictions. But the law at the time forced him to prove his own "non-dangerousness," and it was determined that he couldn't meet this Kafka-worthy standard
7/ This was especially bad during the many yrs that ICE was allowed to arrest people in MA criminal courts. ICE detainees were constantly being denied bond bc of open cases in which they had a Constitutional presumption of innocence--but a statutory presumption of dangerousness.
8/ The federal court's order in Pereira-Brito v. Barr requiring ICE to prove dangerousness (and flight risk) has been in effect since 12/13, and the difference in the way these bond hearings have been conducted has been striking.
9/ BEFORE
IMM JUDGE: Counsel, I don't see a police report for this 1994 shoplifting case
ME: We tried. It's not available
[Bond denied]
AFTER
IJ: DHS, I'm not seeing evidence of this shoplifting conviction you're alleging.
DHS: We tried. It's not available
[Bond granted]
IMM JUDGE: Counsel, I don't see a police report for this 1994 shoplifting case
ME: We tried. It's not available
[Bond denied]
AFTER
IJ: DHS, I'm not seeing evidence of this shoplifting conviction you're alleging.
DHS: We tried. It's not available
[Bond granted]
10/ I've been sitting in the Boston detained docket for more than two hours this AM, my second visit since the ruling took effect. I feel like I've portaled into an alternate universe where some semblance of Constitutional due process is readily available in deportation cases.
11/ Watching DHS actually have to justify separating families through indefinite detention rather than simply leaving it to us to explain why this is bad is as satisfying as anything I've seen in #immigrationcourt outside of my own cases. It's such a simple, necessary change.
12/ As with the MA federal court's stay of ICE arrests in our state courts, this may well just be a temporary reprieve. But it's a welcome one, and we'll take it as long as it lasts. I sincerely believe this has always been the law, & I hope other jurisdictions agree ASAP.
13/
THEN:
"Counsel, you concede that it is your burden to prove that this respondent is not a danger to the community?"
NOW:
"DHS, you concede that it is the government's burden to prove danger to the community?"
That's the difference one case can make. And it's everything.
THEN:
"Counsel, you concede that it is your burden to prove that this respondent is not a danger to the community?"
NOW:
"DHS, you concede that it is the government's burden to prove danger to the community?"
That's the difference one case can make. And it's everything.
14/ Imm judge to detainee's attorney just now:
"Counsel, I know it's not your burden but if you'd like to address anything the government has said now's the time for any rebuttal argument you'd like to present."
Rebuttal!
"Counsel, I know it's not your burden but if you'd like to address anything the government has said now's the time for any rebuttal argument you'd like to present."
Rebuttal!
15/ This detainee was convicted of trespass 2x: taking shelter on an abandoned porch with his gf during a heavy rainstorm, & again for playing basketball in a park
"Had to be *something* there," the imm judge says to his attorney. (I know the neighborhood, & BPD. There wasn't)
"Had to be *something* there," the imm judge says to his attorney. (I know the neighborhood, & BPD. There wasn't)
16/ The attorney is becoming (understandably) emotional, much more so than you usually see from us in this court.
"DHS doesn't even have the records for these minor offenses! How can they possibly say simple trespass on open land was dangerous?" she says
"DHS doesn't even have the records for these minor offenses! How can they possibly say simple trespass on open land was dangerous?" she says
17/ The judge finds that it is a "close case" given "contacts with law enforcement," but finds that DHS has not met its burden without the records. $5K bond granted.
It seems fairly likely from context that this young man would have been held indefinitely under the prior rule.
It seems fairly likely from context that this young man would have been held indefinitely under the prior rule.
