By Suzanne Monyak

Law360 (April 30, 2020, 8:35 PM EDT) -- A group of detained immigrants accused the Baltimore immigration court Thursday of holding unconstitutional bond hearings where the burden of proof lies with the immigrants to show they qualify for release, rather than with the federal government.

The proposed class action, filed by the American Civil Liberties Union and other advocates on behalf of immigrants with bond hearings before the Baltimore immigration court, argues that the government is arbitrarily detaining immigrants while holding bond hearings that don't pass constitutional muster.

Unlike in the criminal justice system, where the law favors the pretrial release of people accused of crimes, the U.S. immigration courts often require immigrants to convince a judge that they're not a danger or a flight risk and merit release. Immigration judges are also not required to consider immigrants' ability to pay bonds when setting them.

This practice has resulted in lengthy detention for immigrants with no or minor criminal histories and longstanding ties to their communities, the lawsuit says.

"Unless this court intervenes, the government will continue to imprison the petitioners and others like them without ever being required to prove that this imprisonment is necessary to protect public safety or to ensure their appearance in immigration court, and will guarantee that noncitizens continue to be detained based solely on their poverty," the complaint says.

Deborah K. Marcuse of Sanford Heisler Sharp LLP, whose firm is representing the class along with the ACLU and Capital Area Immigrants' Rights Coalition, told Law360 that while the attorneys had started working on this lawsuit before the coronavirus pandemic struck the U.S., the "stakes are even higher now" as the illness infects hundreds of people held in immigration detention facilities.

"Irreparable harm was already there, but now it can be a death sentence," Marcuse said.

The suit names three detained immigrants who were denied release under these "flawed" hearings, either because they were unable to convince a judge they qualified for release or because they couldn't afford their bond, which must be paid upfront in immigration court and often ranges from $8,000 to $15,000, according to the suit.

One man, who has been detained since December, has a teenage son and a partner dying of kidney disease. Another is a Nigerian citizen seeking political asylum, and the third is a 25-year-old Mexican citizen who came to the U.S. when he was 14 and now is married with four U.S. citizen children.

Shouldering the burden of proof is even more difficult for immigrants who appear without counsel, as immigrants facing removal are not guaranteed attorneys and must be prepared to refute evidence collected by the government, Denise Slavin, a retired immigration judge, said in a declaration attached to the lawsuit.

Slavin, who previously served as a trial attorney for the government in immigration court, added that it would not be "overly burdensome" for the government to have to prepare records to make the case that detention is necessary.

Several federal judges have already struck down such bond procedures in other immigration courts. In November, a Massachusetts federal judge held that requiring immigrants to shoulder the burden of proof at the Boston immigration court is unconstitutional. She also held that immigration judges must consider an immigrant's financial means when setting a bond higher than $1,500, the legal minimum.

Federal judges in New York, New Jersey, Virginia and California have similarly found that the government must bear the burden of proof in these proceedings.

A spokesperson for the U.S. Department of Justice, which oversees the U.S. immigration courts, didn't immediately return a request for comment on Thursday.

The proposed class is represented by Nicholas T. Steiner, Sonia Kumar and Michael K.T. Tan of the ACLU, Adina Appelbaum, Claudia Cubas, Jenny Kim and Melody Vidmar of the Capital Area Immigrants' Rights Coalition, and Deborah K. Marcuse, Clare J. Horan, Austin L. Webbert, Whittney L. Barth and Saba Bireda of Sanford Heisler Sharp LLP.

Counsel information for the federal government was not yet available.

The case is Dubon Miranda et al. v. Barr et al., case number 1:20-cv-01110, in the U.S. District Court for the District of Maryland.

--Editing by Jack Karp.

For a reprint of this article, please contact reprints@law360.com.