Court Rules Government, Not Immigrants, Required to Prove Dangerousness or Flight Risk Status in Immigration Bond Hearings

May 23, 2018

Foley Hoag LLP, working with representatives from the American Civil Liberties Union (ACLU) Massachusetts, successfully argued that Massachusetts resident and Guatemala native Samuel Pensamiento was unlawfully detained during the pendency of civil immigration proceedings. Chief Judge Patti B. Saris of the U.S. District Court – District of Massachusetts ruled that Pensamiento’s due process rights were violated when he was held for three months without the government having to prove that his detention was necessary. This decision effectively reverses a nearly 20-year-old precedent set by immigration courts to have immigrants prove their own dangerousness or flight risk status during bond hearings. 

Attorneys for Pensamiento, 26, including Foley Hoag associate Daniel McFadden, previously filed a writ of habeas corpus claiming U.S. Immigration and Customs Enforcement (ICE) unlawfully prevented Pensamiento from reporting to Chelsea District Court in January 2018 for a pre-trial hearing to resolve misdemeanor charges stemming from a December 2017 car accident. The writ further alleged Pensamiento’s detention was unlawful because he, not the government per the U.S. Constitution, was required to prove to immigration judges on multiple occasions, by clear and convincing evidence, that he was not a danger or flight risk.

“Forcing Mr. Pensamiento to bear the burden of proof violated his due process rights under the Fifth Amendment and caused him significant prejudice,” said McFadden. “Mr. Pensamiento has followed all necessary legal protocol to obtain his citizenship in the United States, including receiving work authorization and marrying a U.S. citizen. We are very pleased with the court’s decision as this now ensures the rights of immigrants will be fully respected moving forward.”

Per the court’s decision, Pensamiento must remain free unless the government provides him with a bond hearing at which the government must prove that his detention is necessary.

Despite a misdemeanor conviction that resulted in a small, paid fine of $200, attorneys for Pensamiento argued he has no criminal record anywhere in the world. They added that because Pensamiento had prior pathways to become a permanent U.S. resident, removal proceedings were administratively closed.

Along with McFadden, Pensamiento was represented by Foley Hoag attorneys Anthony Mirenda, Aaron Lang and Rebecca Gerome, as well as ACLU Massachusetts representatives from Adriana Lafaille and Matt Segal.

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