Jose Celan Padilla Raudales is a noncitizen who lives in Hempstead, New York, with his parents, sister, and nephew. When he was 21, federal officials took Mr. Padilla into custody pursuant to 8 U.S.C. § 1226(a) while proceedings to deport him were pending. 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 the 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.

Mr. Padilla 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, ordering a new hearing in which the government would bear the burden of proving that Mr. Padilla should be detained. After that hearing, Mr. Padilla was released on bond after nearly a year in detention. The government appealed that decision to the Second Circuit, and CAC filed a brief in support of Mr. Padilla.

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 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.

In May 2021, the government withdrew its appeal of the district court’s decision, allowing that decision to stand. The government’s withdrawal came after the Second Circuit’s decision in Velasco Lopez v. Decker, a case raising similar issues, in which the Circuit held that “prolonged incarceration” during deportation proceedings without “a determination that [a detainee] [i]s a danger or flight risk” violates the Due Process Clause.