Miranda v. Barr — and What It May Mean for Future Immigration Hearings
Picture a courtroom TV drama where a judge decides if a person accused of committing a crime is going to have bail set and for how much. The government lawyer argues for a million dollars or some other outrageous amount and offers reasons in support of the high amount; the defense attorney assures the judge the person is an upstanding member of society and would never flee. The government’s burden is to convince the court the bail is necessary, and if the reason is not convincing enough, the government’s request fails. The court’s job is to consider the person’s ability to pay and whether requiring money is necessary to reduce flight risk or whether the person can be released until trial.
In immigration law, these hearings happen as well, with important differences. First, immigration violations are typically not criminal. Yet in these immigration bond hearings, as they are called, the government doesn’t have to prove anything. Instead, immigrants have to somehow prove a negative — that they are not a flight risk and are not likely to skip a hearing. Second, immigration judges often don’t consider alternatives to keeping an immigrant locked up (“detained”) or whether the person can realistically pay the amount set for the bond.
Multiple courts in multiple jurisdictions have found that if bond hearings are conducted in this way, they violate the Constitution — and yet, it still continues in some jurisdictions.
Three men in Maryland recently filed a lawsuit against the government based upon these potentially unfair bond hearings. This is the basis of Miranda v. Barr. All three men have been living in the United States for many years, all were gainfully employed family men, and all three ended up in ICE custody after mild and brief brushes with law enforcement. While waiting to be released from the police, Immigrations and Customs Enforcement (ICE) intervened and removed each of the men to immigration detention centers. Each man has been detained for months after an initial bond hearing that either named a price too high for the man to pay, or denied him the opportunity to pay a bond at all, even during the increased risk of being confined in close quarters during a pandemic.
On May 29, 2020, a federal District Court judge considered their “motion for a preliminary injunction.” This kind of motion is filed when one side asks the judge to require the other side to either take specific action or to stop a specific action immediately. To be successful on such a motion, the men had to convince the federal judge that their case was likely to succeed once the judge heard all the evidence at trial and there was a significant risk of harm to them if the judge waited until the full trial could be held.
Injunctions such as this are not often granted. In Miranda v. Barr, however, the judge granted the motion. The judge made several specific orders, including that the government had to give new hearings to any detained person who did not receive a fair bond hearing and that notice had to be given to all people currently detained in the jurisdiction of his or her right to a new hearing.
An individual who enters into the U.S. illegally has committed a lesser crime called a misdemeanor (8 USC § 1325(a)). Generally, a person who initially made a legal entry into the U.S. but has remained beyond what is a legal period of time has committed a federal civil offense and not a crime at all. Civil offenses of the law are usually resolved by paying a fine or restitution. Almost all federal misdemeanors have a maximum penalty of up to 12 months. If a person can show very good reasons for either crossing illegally or overstaying (for instance, if he can prove he had a credible fear of torture or death based upon his race, religion, or political affiliation), the law provides that he can stay in the U.S. while applying for asylum and he is not punished either civilly or criminally, no matter how he first entered.
Many of these laws came about after the Holocaust, when the world committed to never again sit idly by and watch innocent people die without helping them; the worldwide need for such compassion has never been greater [1].
Persons waiting for their opportunity to prove that they should be allowed to stay are detained at least until they are given a bond hearing. Dozens of courts have already found that current bond hearings procedures as they are being held in some places violate “due process” or minimal protections of fairness under the law [2]. This is particularly concerning since even though there are politicized claims to the contrary, the data does not show that immigrants fail to appear for hearings. In fact, out of 10,427 decisions in fiscal year 2018 for released asylum seekers, the data shows a 98.5 percent court hearing compliance rate [3].
The petitioners in the new lawsuit, Miranda v. Barr [4], believe they have not received a fair opportunity for release based on the specific facts in their cases.
Marvin is a 35-year-old man from El Salvador who escaped to the U.S. to avoid being tortured and killed because he resisted the MS-13 gang in his country. He has a 13-year-old son named Jason, and a girlfriend, Patty, who is dying from end-stage renal disease; both live with him in Maryland. Marvin has lived in the U.S. for more than 10 years. He was taken into custody at the conclusion of a DUI sentencing hearing where the state judge determined that he was guilty but had already served his 60-day sentence.
He worked in construction before his detention, but because he has been detained and has been unable to work, he has now lost his house and his car for failure to pay. At his hearing, his attorney provided letters from friends and family, proof of alcohol treatment classes, and information about his limited criminal history. The government provided no documents or information in support of detention but argued incorrectly that Marvin had a prior domestic violence conviction, a much more serious claim than the real minor assault charge (meaning a threat, not actually touching someone) he had on his record from eight years prior. The immigration judge denied any possibility of release by denying bond.
Ajibade is a 42-year-old man from Nigeria. He is seeking asylum in the U.S. after members of an opposing political party attacked his hotel and threatened him and his family. His wife and five children are back in Nigeria and he has not had any contact with them since being detained; Ajibade does not know if they are safe. He was apprehended when a store employee thought he was stealing. The police issued him a citation so that he could show up to court and contest the charge. Because of a language barrier, he did not understand that he was to appear and failed to show up. When he realized he had missed his court date, Ajibade went to the courthouse to turn himself in. The theft charge was dropped, but he was held anyway for three days until ICE took him into custody, where he has been detained since November 2019.
He has never had more than a traffic citation. At his bond hearing, where he represented himself, he did not know what the hearing was for or that it was his burden to prove anything. The judge did find Ajibade eligible for release but set his bond at $15,000 without asking about his financial circumstances and without considering any alternatives to detention. He wrote a letter to the judge later and asked for a bond reduction to $5,000 but did not receive any response.
Jose is a 25-year-old man from Mexico who came to the U.S. when he was 14. He and his wife, Karla, have four children, all of whom are citizens. He owns a landscaping company. Jose got into a verbal argument with his brother, and a family member called the police. He did not hurt anyone but was not able to speak to police because of a language barrier, so he was arrested and taken into custody. In the criminal case, the state criminal judge found that he should be released while he awaited trial and did not find that a bond was necessary. Before he could be released, ICE took Jose into detention, where he has remained for months.
At his immigration bond hearing, his attorney argued that he had significant community connections, including his family and business, and that if a bond was set at all (no bond was even ordered in the criminal case), it should be no more than $5,000. The government conceded it had no documents or information about any prior or current criminal issues and really had no information. The judge set bond at $20,000 and did not consider any alternatives to bond.
The petitioners raise four legal claims in their lawsuit:
- Unconstitutional burden of proof shifting: The petitioners argue that in contrast to nearly every other proceeding that determines whether someone can be kept in custody by the U.S. government, the government currently is not required [5] to prove that the person is a flight risk or is likely to skip a hearing. Instead, the immigrant is supposed to somehow prove a negative, that s/he will NOT fail to appear or that s/he is NOT a flight or safety risk. This means that even if the immigrant presents some evidence and the government presents no evidence, the immigration judge can decide that the immigrant has not been sufficiently convincing, and the person would remain in custody.
- Failure to consider alternatives: Petitioners argue that the immigration judge is also not currently required to consider whether custody is the best option. Under already existing regulations, allowable alternatives are electronic monitoring, in-person or telephonic reporting, curfews and travel restrictions, home visits, or case management services. In practice, however, these alternatives are not being utilized. In addition to being better for immigrants, alternatives make good financial sense as well. According to a July 2019 report by the Congressional Research Service, ICE spends, on average, $137 per adult per day in detention, compared to the $4.16 average daily cost per adult enrolled in ICE’s alternatives to detention program. Much of this money is funneled to private detention companies, the largest being GEO and Core Civic. In 2017, the two companies earned a combined $985 million from contracts with ICE [6].
- Failure to consider ability to pay: Currently, immigration judges do not consider the financial resources of the immigrant in deciding the amount of bond to order, or whether one should be ordered at all. Unlike in criminal bonds, these kinds of bonds must be paid in full upfront in the amount ordered. If a bond is set, it ranges from the statutory minimum of $1,500 to $50,000 but is frequently set between $8,000 and $15,000.
- COVID-19 risks: Referencing researchers, the petitioners argue that “within 90 days, 72% to nearly 100% of individuals in the custody of ICE will be infected with the COVID-19 virus and that the rapid spread of COVID-19 will have a substantial impact on local healthcare systems, particularly ICU beds at local hospitals, if the population in ICE detention is not substantially decreased” [7].
To address these concerns, the lawsuit asks the court to find that though the government can still detain a person, to do so it must prove by clear and convincing evidence that the person is a safety or flight risk and that there is no alternative to detention. Further, the lawsuit asks that an immigration judge who decides to set a bond amount must consider the person’s ability to pay what is ordered. Importantly, though, lawsuits involve real people. In this case, the petitioners are Marvin, Alijbade, and Jose.
After review, the U.S. District Court of Maryland issued a ruling on May 29, 2020, that requires the administration to take immediate action. The court ordered that the administration must:
- Give Jose [8] a new bond hearing within 21 days, where it will be the government’s responsibility to prove he is a safety or flight risk; if he is, the judge must consider alternative supervision and Jose’s ability to pay a bond;
- Ensure all future bond hearings in the jurisdiction be conducted with the same parameters;
- Along with the petitioner’s attorneys within 21 days;
- Develop a list that identifies any current detainees who did not receive a fair hearing;
- Give those detainees an opportunity for a new, fair bond hearing;
- Develop a notice translated into native languages of the detainees that summarizes the court’s order and ensure that all detainees receive a copy;
- Provide status reports to the court, which may issue additional orders as necessary.
This court ruling is consistent with the Constitution, with statutory and administrative law, and with public policy. Detention of individuals should be a last resort in any civilized society. As the Supreme Court once explained, “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception” (United States v. Salerno, 1987). Even if concern regarding future appearances were warranted, fair bond hearings value liberty and human rights that have been granted each person by the Creator and allow for the same opportunities and protections that we afford even those charged with the most heinous crimes. Providing due process is both legally and ethically necessary; national security institutions should provide no less for immigrants than criminal courts provide for citizens.
Natalie Greaves is a member of Mormon Women for Ethical Government and a managing partner in private law practice in Boise, Idaho. Though primarily practicing education and family law, her life was forever changed by a pro bono experience working in a women’s and children’s immigration detention center in Texas. She is the mom to three amazing young adults and has been married to the love of her life for almost 26 years.
[1] “The number of refugees around the world who are fleeing violence or persecution in their home countries in search of safety abroad has grown dramatically over the past decade. Until recently, the U.S. offered refuge each year to more people than all other nations combined. But the Trump administration has drastically reduced the maximum number of refugees that can enter the U.S.. Moreover, the U.S. government has imposed new security vetting procedures on refugees before they can be admitted into the country, which has greatly lengthened waiting times and left many refugees in dangerous situations for prolonged periods. In 2017, for the first time in modern history, the U.S. settled fewer refugees than the rest of the world” (see American Immigration Counsel Fact Sheet, An Overview of U.S. Refugee Law and Policy).
[2] See, e.g., Brito v. Barr, 415 F. Supp. 3d 258, 263 (D. Mass. 2019) (holding that BIA policy of placing burden of proof on the noncitizen at § 1226(a) bond hearings violates due process), appeal docketed, No. 20-1119 (1st Cir. 2020). The petitioner’s brief also recounted that “Courts have also repeatedly held that the government is violating detainees’ constitutional rights by failing to consider their ability to pay when setting bond amounts or considering their eligibility for alternative, nonmonetary conditions of release.” See, e.g., Hernandez v. Sessions, 872 F.3d 976, 990–94 (9th Cir. 2017); Brito, 415 F. Supp. 3d at 267–68.
[3] “Asylum Seekers Regularly Attend Immigration Court Hearings“
[4] The Complaint and Memorandum of the Petitioners can be found here.
[5] Prior to 1999, governing rules were interpreted to mean there was a presumption of release, not incarceration.
[6] “Private Companies Are Cashing in on ICE’s Detention Centers“
[7] “Modeling COVID-19 and impacts on U.S. Immigration and Enforcement (ICE) detention facilities“
[8] The order doesn’t specify why Jose was singled out with a specific order that names him. The practical result of it is that Jose will receive a bond hearing more quickly than Marvin or Alijbade, as the government is required to hold his hearing within 21 days, and the government is only required to come up with a plan for how and when to hold new hearings for the other men and anyone else affected by the order within 21 days.
