‘Historic Decision’ Grants Some Undocumented Immigrants Presumption of Liberty Pending Removal Proceedings

Photo by Max Ostrozhinskiy on Unsplash

Max Londberg, Associate Member, University of Cincinnati Law Review

I. Introduction

In August, the First Circuit overturned a long-standing Board of Immigration Appeal (“BIA”) decision that had been erroneously adopted.[1] Before Hernandez-Lara, noncriminal, undocumented immigrants detained pending removal proceedings had to prove they were neither dangerous nor a flight risk to qualify for bond.[2] For Ana Ruth Hernandez-Lara, an immigrant who grew up in El Salvador, that burden required proving a negative; she was asked to show that—despite a vague International Criminal Police Organization (“INTERPOL”) notice accusing her of crime in El Salvador—she did not, in fact, pose a danger.[3]

The United States District Court for the District of New Hampshire found that BIA precedent required the wrong party to bear the burden of proof, and shifted the burden to the government to prove dangerousness.[4] This eased immigrants’ path to securing bond while awaiting removal proceedings.[5] The First Circuit affirmed, upholding the expansion of due process rights of immigrants held in detention.[6] This decision will benefit not just immigrants, whose freedom from detainment will allow a better chance at obtaining counsel and maintaining familial and social ties, but may also benefit the immigration system itself by reducing costs associated with confinement.[7] However, a dissent in the case claims the Hernandez-Lara majority relied on faulty due process analysis, created a circuit split, and should be overturned by the United States Supreme Court.[8] The next section provides background to the majority’s opinion in Hernandez-Lara. The third section contrasts the majority’s analysis with the dissent’s, ultimately arguing that the former should control given its persuasive Mathews v. Eldridge balancing.[9] The conclusion reiterates the value of bond access to immigrants and other stakeholders.

II. Background

A. Factual Backdrop

Hernandez-Lara suffered trauma in her home country of El Salvador, and the United States government exacerbated that trauma approximately five years after she arrived here.[10] Hernandez-Lara’s stepfather raped her as a child; years later, her stepfather’s son raped her eight-year-old daughter.[11] Hernandez-Lara then faced death threats from an El Salvadoran criminal group.[12]

She fled to Maine and found work at a recycling plant, reunited with family members, and accepted a marriage proposal.[13] But an immigration officer detained her in 2018 and upended her life.[14] At a bond hearing before an immigration judge (“IJ”), Hernandez-Lara bore the burden to prove that she was neither dangerous nor a flight risk.[15] The government cited an INTERPOL notice that identified her as a criminal suspect, though such notices do not meet the requirements for arrest under the Fourth Amendment, and this particular notice failed to allege any specific criminal activity.[16] But because Hernandez-Lara bore the burden of proof, the IJ ruled she did not adequately rebut the notice and denied her request for bond.[17]

Detention compounds the hardships faced by asylum seekers like Hernandez-Lara.[18] A study found that prolonged detention worsened symptoms of depression, PTSD, and anxiety among immigrants.[19] One man, who watched armed men kill his father and kidnap his sister in his home country, said this about coming to the U.S. only to be detained: “They don’t call it jail, they call it detention. But it is jail. I thought I would be free when I got to America.”[20]

B. Legal Analysis

Hernandez-Lara filed a petition for a writ of habeas corpus in the District of New Hampshire after the IJ denied bond.[21] The district court agreed with Hernandez-Lara’s due-process argument that the government, rather than her, should bear the burden of proof regarding danger and flight risk.[22] Shifting the burden to the government proved decisive in Hernandez-Lara’s claim for bond.[23] The case returned to the same IJ, who this time cited the vague INTERPOL notice in holding that the government failed to prove Hernandez-Lara posed a danger.[24] She was released.[25] The government, under the Trump administration, appealed the district court’s ruling and argued the case before the First Circuit.[26]

Judge William Kayatta wrote the First Circuit’s opinion.[27] In his due process analysis, Judge Kayatta first reasserted that freedom from imprisonment “lies at the heart of the liberty the Due Process Clause protects.”[28] Due Process protections extend to all people in the United States, regardless of immigration status.[29] Noting Hernandez-Lara’s separation from her fiancé and her work, Judge Kayatta stated Hernandez-Lara suffered a “substantial deprivation of liberty.”[30]

Judge Kayatta next considered the second Mathews factor: the risk of an erroneous decision and the value of substitute procedural safeguards.[31] He found the second factor weighed in Hernandez-Lara’s favor for several reasons.[32] First, detainment can hinder an immigrants’ ability to adequately argue their cases, as detained immigrants struggle to obtain counsel and gather evidence, and many lack full English proficiency.[33] Second, immigration law and the propensities of particular IJs are better known to government representatives than immigrants.[34] And third, proving a negative—as people like Hernandez-Lara must do when they bear the burden of showing they are neither dangerous nor a flight risk—is unfairly difficult.[35]

Ultimately, Judge Kayatta found that the possibility for error in the decision to allow bond would be reduced if the burden rested with the government.[36] The question of dangerousness is often based on law enforcement records, which the government enjoys superior access to.[37] And though a detained immigrant may have better access to details about flight risk, such as ties to the community, they face barriers to obtaining such evidence given their detention.[38]

Finally, Judge Kayatta considered the third Mathews factor.[39] He acknowledged that the government’s asserted interest in the prompt execution of removal orders, which detention may facilitate, is legitimate.[40] However, Judge Kayatta wrote that the government failed to show detention serves that interest when “a noncitizen is not a flight risk.”[41] More than 95 percent of asylum seekers released on bond later attend their hearings.[42] Judge Kayatta also noted the societal costs of unnecessary detentions, in which parents are separated from children, workers from jobs, and caregivers from relatives.[43] In fact, twenty states in an amicus brief reported revenue decline due to lost taxes and higher social welfare payments due to detaining immigrants.[44] While the government argued shifting the burden would deplete resources, Judge Kayatta countered that needless detention costs the government $134 per day, per immigrant.[45]

Judge Kayatta largely upheld the District Court, shifting the burden to the government to prove whether detained immigrants are dangerous or flight risks.[46] “[T]he balance of the Mathews factors weighs in favor” of Hernandez-Lara, he concluded.[47]

III. Discussion

The American Civil Liberties Union of New Hampshire called it a “historic decision.”[48] As Hernandez-Lara’s case illustrates, shifting the burden to the government allows immigrants a better chance to be free of confinement and to return to their families as their cases progress through the system. As Judge Kayatta showed, this benefits not only immigrants themselves but society as a whole.[49]

However, Judge Sandra Lynch dissented from the First Circuit decision, calling on the United State Supreme Court to reverse it.[50] Despite the government’s poor arguments, Judge Lynch nonetheless adopted some of them in her opinion.[51]

To start, both the government[52] and the dissent disagreed with Judge Kayatta’s private interest analysis.[53] Each contended that detained immigrants could unilaterally end their confinement by, as the government euphemistically termed it, “simply conceding to removal.”[54] This, they claimed, lessens immigrants’ liberty interest.[55] But the contention is myopic, as Judge Kayatta demonstrated. It fails to recognize that removal can result in lifelong exile from the country, potentially extracting someone from all that “makes life worth living.”[56] And for asylum seekers, like Hernandez-Lara, voluntary removal could be a death sentence.[57] The ostensible liberty of abandoning one’s work, one’s relatives, one’s partner, one’s home, to return to the scene of threatened violence, is, of course, no liberty at all.[58]

Judge Lynch continued to downplay immigrants’ liberty interest. She wrote the government “powerfully argued” it “knows little” about recent immigrants, which affects the second and third Mathews factors.[59] As a result, Judge Lynch stated the majority “fails to actually apply the Mathews framework it purports to apply and reaches an overly broad holding.”[60]

But as Judge Kayatta pointed out, the government already has “strong incentive” under existing procedures to obtain criminal records, to the point that shifting the burden will not drain significant additional government resources.[61] And because fewer detained individuals could actually save the government $134 per person, per day, the government interest may actually support the presumption of liberty created by shifting the burden to the government.[62]

The Fourth Circuit has described the burden of proof in cases involving confinement as “the value society places on individual liberty.”[63] The dissent’s due process analysis in Hernandez-Lara seems to reflect the idea that the risk of granting bond to an undeserving immigrant (who may not reappear for a removal hearing) is greater than the risk of a deserving immigrant not securing bond. The argument breaks down when one considers that the fears the dissent and government point to are largely illusory. With 96 percent of asylum seekers and 86 percent of family detainees released on bond later returning for all their hearings, the chance that the government fails to prove a person is a flight risk and that person then flees is nominal.[64] It is possible that someone who has never committed certain types of crime, like all § 1226(a) detainees, is still dangerous. But it’s also true that the person’s pending immigration status would likely provide added incentivization to avoid crime because they are under close judicial scrutiny and seeking a favorable immigration outcome.

The other side of the equation—the possibility of confining an innocent person for months or even years—is weighty. Government revenue takes a hit. More importantly, families are splintered and jobs are lost. As the Supreme Court has said in a similar context, the procedure selected in cases involving liberty ultimately entails the weighing of two evils: the confinement of an innocent person and the release of a guilty one.[65] “[T]he choice of the standard to be applied in a particular kind of litigation should … reflect an assessment of the comparative social disutility of each.”[66] Likewise, the choice between placing the burden on the government or on an immigrant in bond hearings should be clear. The possible social ills tied to the former are far less significant than those associated with the latter.

Finally, Judge Lynch argued in dissent that the majority’s decision created a circuit split, as the Third Circuit has held that the “Due Process Clause does not require the government to bear the burden of proof in bond proceedings.”[67] Judge Kayatta contended the issue in Hernandez-Lara was not even before the Third Circuit, thus avoiding a circuit split.[68] However, even if a circuit split exists, Hernandez-Lara should control given its nuanced, persuasive due-process analysis.

IV. Conclusion

At the heart of Hernandez-Lara is the question of whether failing to remove deportable immigrants outweighs the possibility of confining innocent people who contribute to society in innumerable ways. It does not. Immigrants new to this country are unlikely to abscond, contribute economic and communal benefits to society, and, like Hernandez-Lara, may be seeking safety after years of abuse. Affording them a modicum of dignity by granting them the presumption of liberty should, in a decent world, not even be a matter of debate.

[1] Hernandez-Lara v. Lyons, 10 F.4th 19, 39 (1st Cir. 2021).

[2] Id. at 24.

[3] Id. at 31 (stating proving a negative is often more difficult than proving a cause for concern: “[A]s a practical matter it is never easy to prove a negative.”) (citing Elkins v. Unites States, 364 U.S. 206, 218 (1960)).

[4] Id. at 23.

[5] Id. at 41.

[6] Id. at 23.

[7] Id. at 33.

[8] Id. at 55 (Lynch, J., dissenting).

[9] 424 U.S. 319, 321 (1976) (creating a three-part balancing test for due-process challenges that considers the private interest to be affected, the government interest, and the risk of erroneous deprivation through current procedures and value of additional procedural safeguards).

[10] Dree K. Collopy, AILA’s Asylum Primer 1118 (8th ed. 2019) (“[D]etention often compounds the trauma that victims of persecution and torture are already suffering upon their arrival to the United States”) (citing Physicians for Human Rights & The Bellevue/NYU Program for Survivors of Torture, From Persecution to Prison: The Health Consequences of Detention for Asylum-Seekers (June 2003), https://perma.cc/W88H-BLVU).

[11] Hernandez-Lara, 10 F.4th at 24.

[12] Id.

[13] Id.

[14] Id. (discretionary detainment of noncitizens who have not committed certain crimes is allowed under 8 U.S.C. §1226(a). Section 1226(a) is “silent as to what burden of proof applies in bond hearings and who bears that burden”). See also Matter of Adeniji, 22 I. & N. Dec. 1102, 1112 (B.I.A. 1999) (holding §1226(a) detainees must bear burden of proof in bond hearings, reversing prior rule that had granted presumption of liberty).

[15] Id.

[16] Id. at 24-25.

[17] Id. (noting Hernandez-Lara presented evidence that she had no criminal history in either El Salvador or the United States).

[18] Physicians for Human Rights & The Bellevue/NYU Program, supra note 10, at 2 (stating average detention length for study participants was 10 months, the same length as Hernandez-Lara’s detention).

[19] Id.

[20] Id. at i.

[21] Hernandez-Lara, 10 F.4th at 25.

[22] Id. at 23.

[23] Id.

[24] Id. at 26.

[25] Id.

[26] Id.

[27] Id. at 23.

[28] Id. at 28 (citing Zadvydas v. Davis, 533 U.S. 678, 695 (2001)).

[29] Id. at 29.

[30] Id. at 28.

[31] Id. at 30.

[32] Id.

[33] Id.

[34] Id. at 31.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Id. at 32.

[41] Id.

[42] Id. at 33 (citing Ingrid Eagly et al., Detaining Families: A Study of Asylum Adjudication in Family Detention, 106 Cal. L. Rev. 785, 848 (2018)).

[43] Id.

[44] Id.

[45] Id. (citing Dep’t of Homeland Sec., U.S. Immigr. & Customs Enf’t Budget Overview (2018) at 14).

[46] Id. at 39-41 (holding government must show danger by clear and convincing evidence and flight risk by preponderance of the evidence, the latter a lower standard than the District Court had ruled the government must meet (clear and convincing)).

[47] Id.

[48] Hernandez-Lara v. Lyons, ACLU of New Hampshire, (last visited Oct. 27, 2021), https://perma.cc/TD48-5ZNW.

[49] Hernandez-Lara, 10 F.4th at 28, 33.

[50] Id. at 58.

[51] Judge Lynch would shift the burden to the government under statutory grounds by vacating the BIA’s decision in Adeniji because it violated the Administrative Procedure Act. The Adeniji decision shifted the burden onto immigrants in bond hearings before IJs based on an Immigration and Naturalization Service regulation that did not concern IJs and misinterpreted statistics, inflating the number of immigrants who abscond prior to an order of removal. The government nonetheless argued Adeniji represented a “reasonable interpretation” of § 1226(a) despite these problems, and argued for Chevron deference despite the Adeniji’s holding resting on a regulation rather than a statute. Section 1226(a) contains nothing to suggest immigrants must bear the burden of proof.  The Adeniji holding, then, led to immigrants wrongly bearing the burden for two decades. See Hernandez-Lara, 10 F.4th at 46-53 (Lynch, J., dissenting); Matter of Adeniji, 22 I. & N. Dec. 1102 (B.I.A. 1999).

[52] Hernandez-Lara, 10 F.4th at 29.

[53] Id. at 56-57 (Lynch, J., dissenting).

[54] Id. at 29.

[55] Id.

[56] Id. (citing Ng Fung Ho v. White, 259 U.S. 276, 284 (1922)).

[57] Id. (earlier noting that the El Salvadoran criminal group had threatened to behead Hernandez-Lara).

[58] Id. (likening the dissent’s and government’s argument to “telling detainees that they can help themselves by jumping from the frying pan into the fire”).

[59] Id. at 58 (Lynch, J., dissenting).

[60] Id.

[61] Id. at 33.

[62] Id.

[63] Tippett v. State of Md., 436 F.2d 1153, 1166 (4th Cir. 1971).

[64] Hernandez-Lara, 10 F.4th at 33 (citing Ingrid Eagly et al., Detaining Families: A Study of Asylum Adjudication in Family Detention, 106 Cal. L. Rev. 785, 848 (2018)).

[65] In re Winship, 397 U.S. 358, 370-71 (1970) (Harlan, J., concurring) (agreeing that proof beyond a reasonable doubt should be the standard in juvenile delinquency cases).

[66] Id.

[67] Hernandez-Lara, 10 F.4th at 58 (Lynch, J., dissenting).

[68] Id. at 34.


  • Prior to law school, Max worked as a journalist for newspapers in Kansas City and Cincinnati. Inspired by Professor Sandra Sperino's employment law class, he wrote for this journal about how federal courts inappropriately grant summary judgment to Title VII defendants despite evidence of race- and gender-based bias influencing hiring processes. In the classroom and as an Ohio Innocence Project fellow, he has focused on civil rights and post-conviction relief laws. He also researches the relationship between property and paramilitarism for Professor Meghan Morris' book project: This Land is My Land: Property, Paramilitarism, and the American Dream.

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