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 riskto 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.”
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