The Beast of Burden in Immigration Bond Hearings

Abstract

This term, in the case of Jennings v. Rodriguez, 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 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. It is the government that seeks law’s intervention in both contexts, 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.

Keywords: bond, burden of proof, immigration, deportation