Carlos Velasco Lopez is a citizen of Mexico who was brought to the United States as a small child in 1995. After his temporary legal status lapsed, U.S. Immigration and Customs Enforcement placed him in deportation proceedings, and it detained him pursuant to 8 U.S.C. § 1226(a) while those proceedings continued. Although this statute permits the release of detainees on bond or parole, an immigration judge denied release based on the standard that the executive branch requires immigration judges to apply. Under this standard, the government does not need to justify its detention of a person in deportation proceedings by demonstrating that a person will likely abscond or be dangerous if released. Instead, people who are detained may be released only if they can prove that they will not be dangerous or a flight risk.

Velasco Lopez sought a writ of habeas corpus in federal court, arguing that the standard used at bond hearings violates the Due Process Clause of the Fifth Amendment. The district court agreed, holding that in order to detain a person pending deportation proceedings, the government must establish by “clear and convincing” evidence that the person is a flight risk or is likely to endanger the community if released. The government appealed this decision to the Second Circuit, where CAC filed a brief supporting Velasco Lopez.

Our brief made three main points. First, the Fifth Amendment protects noncitizens as fully as citizens, shielding every “person” (not just “citizens”) from deprivations of life, liberty, and property without due process of law. As the Supreme Court has long recognized, therefore, while the government may deport noncitizens who are ineligible to remain in this country, when doing so it must give them the same level of due process protection that it gives to citizens.

Second, the Supreme Court has repeatedly held that the government must satisfy a heightened standard of proof—“clear and convincing evidence”—before depriving someone of a significant liberty interest, whether or not that person is a citizen, and whether or not the government is exercising its powers over immigration. For both citizens and noncitizens, “liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”

Third, while the Supreme Court has permitted Congress to adjust the normal due process presumptions for some deportable noncitizens, the Court has allowed this only in narrow circumstances—where Congress has spoken clearly in legislation based on abundant evidence that particular groups of noncitizens were especially dangerous, and where strong procedural protections guarded against erroneous detention. None of those special circumstances are present here. Instead, without authorization from Congress, the executive branch has unilaterally adopted a policy requiring the presumptive incarceration of any person it accuses of being a deportable noncitizen. That violates the Due Process Clause.

The Second Circuit affirmed the district court’s judgment, concluding that Velasco Lopez’s “prolonged incarceration” without “a determination that he was a danger or flight risk” violated his due process rights. Emphasizing that the Fifth Amendment “entitles noncitizens to due process of law,” the Circuit agreed with the district court that a new hearing was required in which the government would bear the burden of showing that Velasco Lopez was either a flight risk or a threat to his community. Shifting the burden of proof to the government, the Circuit noted, “promotes the Government’s interest—one we believe to be paramount—in minimizing the enormous impact of incarceration in cases where it serves no purpose.”