Senate and House Judiciary Democrats Outline Necessary Due Process Reforms for Noncitizens in Immigration Detention Center

WASHINGTON – Today, lead Senate and House Judiciary Committee Democrats wrote to Attorney General Merrick Garland and Department of Homeland Security Secretary Alejandro Mayorkas outlining necessary reforms to current procedures fornoncitizens in immigration detention to improve access to due process.

The letter is signed by the top Democrat on both the Senate and House Judiciary Committees – U.S. Senate Majority Whip Dick Durbin (D-IL) and U.S. Representative Jerry Nadler (D-NY) – and top Democrats on their respective immigration subcommittees, U.S. Senator Alex Padilla (D-CA) and U.S. Representative Pramila Jayapal (WA-07).

At the beginning of the letter, the legislators underscore the effects that detention has on noncitizens and their families: “[W]e are concerned that current procedures formaking 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.”

Then, the legislators describe the higher burden placed on immigrants than defendants in the federal criminal legal system: “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.”

In conclusion, the legislators make four policy recommendations: “We encourage your Departments to take action to reduce the likelihood of such due process failures in our immigration bond system.  Specifically, we urge you to amend your Departments’ guidance and regulations to – (1) Shift the burden of proof to the government in immigration bond proceedings, as is done in criminal proceedings; (2) Require consideration of a noncitizen’s ability to pay when making a determination on bond amount; (3) Give noncitizens determined by ICE to be subject to mandatory detention an opportunity to request a review of such determination; and (4) 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.