Junior Onosamba-Ohindo was apprehended by the government when it initiated deportation proceedings against him. Although the immigration laws allow people in his position to be released on bond or parole while their cases proceed, an immigration judge denied release after placing the burden on him to demonstrate that he would not be a flight risk or a danger to the community. Under this standard, which is required by executive branch policy, the government does not need to justify its detention of a person in deportation proceedings by demonstrating that he or she 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.

Onosamba-Ohindo challenged his detention in federal court, on behalf of himself and a class of similarly situated detainees, 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 he or she is a flight risk or is likely to endanger the community if released. The government appealed this decision to the U.S. Court of Appeals for the Second Circuit, where CAC filed a brief supporting Onosamba-Ohindo.

Our brief makes 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, while the government may deport non-citizens 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 were present in this case. Instead, without authorization from Congress, the executive branch unilaterally adopted a policy requiring the presumptive incarceration of any person it accuses of being a deportable noncitizen. That violates the Due Process Clause.