WASHINGTON, D.C. (November 25, 2023) — U.S. Senator Alex Padilla (D-Calif.), Chair of the Senate Judiciary Subcommittee on Immigration, Citizenship, and Border Safety, U.S. Senate Majority Whip Dick Durbin (D-Ill.), and U.S. Representatives Jerrold Nadler (D-N.Y.-12) and Pramila Jayapal (D-Wash.-07) wrote to Attorney General Merrick Garland and Department of Homeland Security Secretary Alejandro Mayorkas outlining necessary reforms to current procedures for noncitizens in immigration detention to improve access to due process.
The legislators underscored the effects that detention has on noncitizens and their families. They went on to highlight the unjust disparity regarding the burden of proof for detention and release determinations between the civil immigration system and the criminal justice system.
“[W]e are concerned that current procedures for making immigration bond determinations allow for the prolonged detention of noncitizens without adequate due process, raising serious constitutional issues. Such detention has had disastrous effects on noncitizens and their families—plunging families into poverty and exacerbating medical or mental health conditions for detained individuals or their loved ones at home. We urge you to amend current immigration bond procedures to mitigate these concerns and improve access to due process in the immigration detention system,” wrote the lawmakers.
“Although the immigration system is civil, not criminal in nature, the Immigration and Nationality Act permits noncitizens to be detained while they await their immigration hearings. Those who have not been charged or convicted of serious crimes may be released on bond. Although the statute does not compel this application, the Department of Homeland Security (DHS) regulations and Board of Immigration Appeals (BIA) case law both currently place the burden on a noncitizen detainee to prove they are not a danger to property or persons or a flight risk. This policy places a higher burden on immigrants—regardless of whether or not they have committed a crime—than is commonly placed on defendants in the federal criminal legal system, where the government in most cases must justify the necessity of detention,” continued the lawmakers.
The lawmakers made four policy recommendations. Specifically, the letter urges the Departments to amend their guidance and regulations to:
- Shift the burden of proof to the government in immigration bond proceedings, as is done in criminal proceedings;
- Require consideration of a noncitizen’s ability to pay when making a determination on bond amount;
- Give noncitizens, determined by Immigrations and Customs Enforcement (ICE) to be subject to mandatory detention, an opportunity to request a review of such determination; and
- Schedule periodic assessments for all those in immigration detention to determine whether detention has become or will likely become unreasonably prolonged, such that due process requires an individualized bond hearing.
Full text of the letter is available here
