Jose de la Cruz Espinoza came to the United States when he was 14; he and his wife run a landscaping business in Delaware and have four children, all U.S. citizens. On Feb. 9, 2020, at his brother’s house in Bel Air, Md., Espinoza got into a loud argument. His daughter called 911.
Espinoza, 28, was ultimately released on his own recognizance. But he was immediately picked up by U.S. Immigration and Customs Enforcement, and an immigration judge ruled that he would have to pay a $20,000 bond to stay out of jail while fighting deportation.
Unlike in criminal court, where the government has to prove that a person is a danger or a flight risk to keep them detained pending the adjudication of their legal case, the burden is on immigration detainees to convince a judge that they are neither. They also must make their case without a right to counsel, unlike defendants in criminal proceedings. If immigration detainees are granted bond, they must pay it all up front, and the court is not required to consider their ability to pay.
Those differences pushed Espinoza to sue, along with two other immigrants incarcerated in Baltimore while pursuing asylum, backed by civil liberties groups and the law firm Sanford Heisler Sharp. A U.S. district court judge in Maryland found that system unconstitutional in 2020 and issued an injunction requiring the government to carry the burden of proof and immigration judges to consider a detainee’s ability to pay for bond.
The judge was overruled Thursday by a three-judge panel of the U.S. Court of Appeals for the 4th Circuit.
“Aliens facing removal proceedings, although entitled to due process under the Constitution, are not entitled to the same process as citizens,” wrote Judges Julius N. Richardson and A. Marvin Quattlebaum Jr., both appointees of President Donald Trump. “Aliens are due less process when facing removal hearings than an ordinary citizen would have.”
The Justice Department had argued that “the existing procedures afforded to noncitizens … provide a meaningful opportunity to be heard” and that a single federal judge could not order new procedures for the whole state.
Ajibade Thompson Adegoke, 44, came to the United States from Nigeria on a tourist visa in 2017 and stayed, working as a driver. Adegoke was arrested in Baltimore in 2019, after what his lawyers said was a mistaken accusation of shoplifting. The charge was dropped, but he was taken into ICE custody from jail. His bond was set at $15,000, higher than he could pay.
Marvin Dubon Miranda, 37, came from El Salvador more than a decade ago. He was convicted of drunken driving in late 2019, arrested by ICE and held by an immigration judge without bond, based on what his attorneys say was a false assertion by the government that he had a domestic violence conviction.
“The reliance on unsubstantiated allegations of criminal conduct … underscores the significant and detrimental impact that placing the burden of proof on a noncitizen has,” attorneys for the ACLU of Maryland wrote in one court filing.
All three men were released from custody while the litigation was pending. The question of whether a judge can grant such sweeping relief to noncitizens was argued before the Supreme Court in January; a ruling has yet to be issued.
One of the 4th Circuit judges said he would not have considered the merits of the case at all, because it infringes on the attorney general’s discretion to dictate how noncitizens are detained.
Judge Michael Urbanski, a district court judge who sat on the appellate panel, dissented.
“Placing the burden of proof on the government … helps balance the fact that aliens seeking release have no right to counsel, speedy trial, or cross-examination,” he wrote.
At oral argument, he emphasized that there is a difference between immigrants like these and those convicted of felony crimes that mandate removal from the country. The Supreme Court in 2018 ruled that people in mandatory immigration detention were not entitled to regular reviews of that status.
Nick Taichi Steiner, staff attorney with the ACLU of Maryland, said the group was “obviously disappointed with the result” of the 4th Circuit panel’s opinion. There were more than 1,000 immigration court bond hearings where the district court judge’s preliminary injunction applied over the past year, he said.
An appeal to the full bench of 4th Circuit judges is likely; in the meantime the injunction remains in effect.
Simon Sandoval-Moshenberg of the Legal Aid Justice Center, an immigrant rights group that filed a brief in favor of the detainees, called the decision “a radical outlier” from other appellate courts.
“I hope it will be reversed quickly by the full Court of Appeals,” he said in an email. “The Biden Administration should not continue to press legal arguments that immigrants are somehow lesser ‘persons’ than U.S. citizens within the meaning of the Due Process Clause.”
The Justice Department declined to comment.