The US Court of Appeals for the First Circuit ruled Friday that in order to detain non-citizen immigrants under the statute for apprehension and detention of non-citizen immigrants, “due process requires the government to either (1) prove by clear and convincing evidence that [the immigrant] poses a danger to the community or (2) prove by a preponderance of the evidence that [the immigrant] poses a flight risk.”

The statute for apprehension and detention of non-citizen immigrants, 8 U.S. Code § 1226, did not previously specify the burden of proof to be met at immigration bond hearings. Therefore, the Board of Immigration Appeals required that a non-citizen immigrant prove “to the satisfaction of the Immigration Judge that he or she merits release on bond,” while the government need not prove that the immigrant poses any sort of risk.

In this case, plaintiff Ana Ruth Hernandez-Lara, who immigrated to the United States from El Salvador without being formally admitted, was arrested in September 2018. She was detained without bond for ten months before the immigration judge released her. At her first hearing before the immigration judge, Hernandez was required to prove that she was not a danger to the community or a flight risk.

A second hearing was conducted before the immigration judge under the direction of the US District Court for the District of New Hampshire, where the affirmative burden of proof was placed instead on the state. Hernandez was subsequently released. The government appealed, hoping that the appeals court would rule in its favor that requiring the burden of proof to be placed on the immigrant satisfied due process. However, the court held that the burden must be placed on the government.

If the government wishes to detain Hernandez once again, it must prove before the immigration judge that she poses a flight risk or danger to the community.