Marvin Dubon Miranda has lived in the United States for more than ten years. In 2019, the government took him into custody and initiated deportation proceedings against him. Although the immigration laws allow people in Dubon Miranda’s position to be released on bond while their cases proceed, the immigration judge who conducted his bond hearing—following executive branch policy—placed the burden on him to demonstrate that he would not be a flight risk or a danger to the community if released. Under this standard, the government does not need to justify its continued detention of people in deportation proceedings by showing that the person would likely abscond or be dangerous. Instead, detainees remain jailed unless they can prove the opposite.

Immigrant advocacy organizations filed a class action lawsuit on behalf of Dubon Miranda and others similarly situated, arguing that the standard used in immigration bond hearings violates the Due Process Clause of the Fifth Amendment. The district court agreed and issued a class-wide preliminary injunction, holding that in order to detain a person pending deportation proceedings, the government must establish by clear and convincing evidence that the person is a flight risk or is likely to endanger the community. The government appealed this decision to the Fourth Circuit, where CAC filed an amicus brief in support of Dubon Miranda.

Our brief made three essential points. First, the Fifth Amendment protects noncitizens as fully as it does citizens, shielding every “person” (not just every “citizen”) from deprivations of life, liberty, and property without due process of law.

Second, the Supreme Court has repeatedly held that the government must satisfy a heightened standard of proof—“clear and convincing evidence”—before depriving a person of a “significant liberty interest,” whether or not that person is a citizen and whether or not the government is exercising its powers over immigration. For citizens and noncitizens alike, the Court has said, “liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”

Finally, while the Supreme Court has permitted Congress to adjust the normal due process presumptions for certain classes of noncitizens, the Court has allowed such adjustments only in narrow circumstances—where Congress has spoken clearly in legislation based on abundant evidence that particular groups of noncitizens were especially dangerous, and where strong procedural protections guarded against erroneous detention. None of those special circumstances is present here. Instead, without authorization from Congress, the executive branch unilaterally adopted a policy requiring the presumptive incarceration of any person it accuses of being a deportable noncitizen. That policy violates the Due Process Clause.

In May 2022, a divided panel of the Fourth Circuit held that Dubon Miranda’s detention did not violate the Due Process Clause, and it vacated the district court’s preliminary injunction. The majority opinion explicitly rests on the notion that noncitizens “are due less process when facing removal hearings than an ordinary citizen would have.” Claiming that Supreme Court precedent establishes this principle, the majority opinion ignores key aspects of the precedent it cites. And although this case involved the detention of individuals whose removal proceedings were still ongoing—meaning that the lawfulness of their presence in the United States had not yet been determined—the majority opinion inexplicably refers to the rights of individuals who are “in the country unlawfully.” A concurring opinion similarly cites “the crucial distinction between the constitutional rights afforded to citizens and the rights afforded to those illegally in our country.” As the dissenting opinion explains, however, the Supreme Court decisions cited by the majority “fail to provide constitutional support for the executive branch’s decision to place the burden on the noncitizen at an immigration detention hearing.”

Dubon Miranda subsequently petitioned the full Fourth Circuit to rehear the case en banc. In July 2022, CAC filed an amicus brief urging the court to grant the petition and reconsider the panel’s flawed ruling. In November 2022, however, the Fourth Circuit denied the petition for rehearing.