By Dave Simpson

Law360 (May 29, 2020, 9:57 PM EDT) -- A Maryland federal judge on Friday ordered the Baltimore immigration court to hold new bond hearings for detained immigrants whose detention was not properly justified at previous hearings, citing, among other things, the COVID-19 outbreak as a potential hazard to some detainees.

U.S. District Judge Catherine C. Blake issued a preliminary injunction to a putative class of immigrants with bond hearings before the Baltimore court, saying the American Civil Liberties Union and other advocates who filed the suit had shown that their claims are likely to succeed on merits. She also said the immigration judges must consider an immigrant's financial situation when issuing bond amounts.

"At these bond hearings, the government must bear the burden of justifying continued detention by clear and convincing evidence, and the IJ must consider the noncitizen's ability to pay a set bond amount and suitability for release on alternative conditions," she said Friday.

Judge Blake said that the putative class had successfully shown that its members could suffer irreparable harm as a result of their being detained following bond hearings that were "likely constitutionally deficient"

"While the court need not find that the COVID-19 pandemic presents an independent basis for irreparable harm, the court considers the proposed class members' heightened risk of contracting COVID-19 while detained as a factor strengthening their showing," she said.

In April, a group of detained immigrants accused the Baltimore immigration court 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 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 thus 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.

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 could not 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 rebut evidence collected by the government, Denise Slavin, a retired immigration judge, said in a declaration attached to the lawsuit.

Slavin, previously 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.

"This ruling means people will no longer be locked up without any legal justification. It is a huge victory, and in a time of COVID-19, it could save lives," Michael Tan, deputy director of the ACLU's Immigrants' Rights Project, said in a release Friday.

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.

The government is represented by Evelyn Lombardo Cusson of the United States Attorney's Office, District of Maryland.

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.

--Additional reporting by Suzanne Monyak. Editing by Peter Rozovsky.

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