US Has Burden of Proof to Detain Alien, Judge Says

BOSTON (CN) – Blocking the renewed detention of a U.S. citizen’s Guatemalan husband, a federal judge ruled Monday that Immigration and Customs Enforcement must demonstrate cause if they want to take Samuel Pensamiento into custody again.

“Today’s ruling vindicates the important constitutional principle that freedom is the norm, and detention is the exception that should be used only when necessary,” ACLU of Massachusetts attorney Adriana Lafaille said in a statement.

When ICE first got hold of Pensamiento on Jan. 31, 2018, the 26-year-old had been reporting to District Court in Chelsea, Massachusetts, for a misdemeanor traffic charge.

He spent the next three months in jail before the government agreed on April 25 that Pensamiento could be released for 30 days to be present for the birth of his child.

As that window now draws to a close, U.S. District Judge Patricia Saris said Monday that Pensamiento must “not be detained again unless the immigration court holds a bond hearing where the government bears the burden of proving that Pensamiento must be detained because he is dangerous or a flight risk.”

Foley Hoag attorney Daniel McFadden also represents Pensamiento with the ACLU.

“Too many people like Mr. Pensamiento are detained without receiving the basic element of due process: a fair and adequate bond hearing to determine whether their detention is even necessary,” the ACLU’s Lafaille said in a statement. “Mr. Pensamiento and his family suffered three long months of needless separation.”

Saris emphasized in her ruling that the immigration judge who denied Pensamiento bond months earlier would have been unlikely to find him dangerous if the government had borne the burden of proof.

“As a preliminary matter, the IJ’s holding appears to violate the evidentiary standard set by the BIA,” the ruling states, abbreviating immigration judge and Board of Immigration appeals.

ICE officials had hoped to dismiss the immigrant’s habeas challenge, but Saris rejected this effort, looking to two U.S. Supreme Court cases for guidance.

“With the guideposts of Zadvydas and Demore, this court holds that the Constitution requires placing the burden of proof on the government in § 1226(a) custody redetermination hearings,” the ruling states. “Requiring a noncriminal alien to prove that he is not dangerous and not a flight risk at a bond hearing violates the Due Process Clause. In cases where a noncriminal alien’s liberty may be taken away, due process requires that the government prove that detention is necessary. This is especially true when individuals may be detained for extended periods of time.”

Pensamiento entered the United States in 2013, seeking asylum. Since then, he obtained a driver’s license and lawful employment. Pensamiento was in the process of obtaining permanent residency status when his involvement in hit-and-run led to his arrest by Chelsea police on Dec. 17, 2017.

Back in March, U.S. District Judge Allison Burroughs entered a restraining order for Pensamiento based on his claims that the government was refusing to let him out of detention to attend court hearings in the traffic case.

Representatives at the Department of Homeland Security declined to comment on pending litigation.

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