The Beast of Burden in Immigration Bond Hearings

Abstract

In this article, I examine the burden of proof in bond proceedings. I apply theories for why burdens of proof exist in the law to demonstrate why the government should bear the burden of proof. I also argue that in order to ensure that such detention comports with Due Process, the government must prove, by clear and convincing evidence, that a detainee is dangerous. This presumption of freedom previously existed, yet was eviscerated by the former Immigration and Naturalization Service in a 1997 regulation and the Board of Immigration Appeals in a 1999 decision. That the detainee must bear the burden of proof in bond hearings has become the norm, yet this article seeks to explain how this burden shift occurred and, in doing so, exposes this troubling aspect of today’s bond hearings.