When the government takes people into custody and begins deportation proceedings against them, the immigration laws generally allow such individuals to be released on bond or parole while their cases proceed. An immigration judge denied bond to Salvadorian immigrant Aroldo Rodriguez Diaz, however, after placing the burden on him to demonstrate that he would not be a flight risk or a danger to the community if released. Rodriguez Diaz then spent more than a year in immigration detention before a federal district court concluded that the Fifth Amendment’s Due Process Clause entitled him to another bond hearing, at which the government should bear the burden of proving by clear and convincing evidence that he was a flight risk or a danger to the community. A panel of the U.S. Court of Appeals for the Ninth Circuit reversed that judgment, however, holding that noncitizens in Rodriguez Diaz’s position have less of a constitutional interest in freedom from imprisonment than citizens detained in comparable circumstances. Rodriguez Diaz then petitioned the full Ninth Circuit to rehear the case, and in April 2023, CAC filed an amicus curiae brief in support of the petition.

Our brief first explains that under the Due Process Clause, noncitizens have the same liberty interest as citizens in freedom from arbitrary imprisonment. The Founders established in the Fifth Amendment that no “person” (not just “citizen”) may be deprived of liberty without due process of law, and the Amendment’s history confirms the plain meaning of its text. The Founders derived the concept of due process from English common law, which supplied the original standards for the Due Process Clause, and in the Founding era, the common law gave “aliens” the same procedural safeguards against unjustified detention that it gave to citizens. As we further describe, the ratification of the Fourteenth Amendment later removed any possible doubt that where the Constitution uses the word “person,” it protects citizens and noncitizens alike.

Consistent with constitutional text and history, as we discuss next, the Supreme Court’s precedent has long recognized that the Due Process Clause requires the government to satisfy a heightened burden of proof before subjecting any person, citizen or noncitizen, to any significant liberty deprivation, including in immigration proceedings.

Finally, we explain that the panel decision in this case grossly undervalues noncitizens’ liberty interest in bodily freedom, misreading Supreme Court precedent and departing from constitutional text and history by relegating noncitizens to a watered-down version of due process. We therefore urge the court to grant the petition for rehearing.

In October 2023, the Ninth Circuit panel denied the petition for rehearing en banc. Eleven judges joined an opinion disagreeing with the court’s refusal to hear the case.