Earlier this month, U.S. Immigration and Customs Enforcement (“ICE”) reported that Carlos Escobar-Mejia, a 57-year-old Salvadoran man, died in custody at the Otay Mesa Detention Center in California. Mr. Escobar-Mejia was the first reported individual in ICE detention to die from COVID-19. Though Mr. Escobar-Mejia had lived in the U.S. for over 40 years, an immigration judge during a recent bond hearing had deemed him a “flight risk.” Pursuant to a federal court order issued on April 30, 2020 in response to a lawsuit filed by the American Civil Liberties Union (“ACLU”), ICE compiled a list of individuals in detention—including Mr. Escobar-Mejia—who were evaluated as medically vulnerable and thus eligible for immediate release. This order arrived just weeks after ICE reportedly released nearly 700 individuals from ICE detention due to concerns about the spread of COVID-19. In making its determination, ICE considered factors such as each individual’s immigration history, criminal record, flight risk, and national security concerns. On May 25, ICE confirmed yet another grim milestone: 34-year-old Santiago Baten-Oxlag became the second person to died of COVID-19 while in ICE custody.
Federal immigration laws permit ICE and immigration judges to release individuals on bond or with alternative conditions while their removal proceedings are pending. The fact that ICE was able to quickly identify nearly 700 individuals eligible for release highlights one of the central claims of Dubon Miranda v. Barr, a recent class action suit filed by Sanford Heisler Sharp in the federal district court in Maryland––namely, that the federal government’s procedures for determining who should be released from immigration detention are arbitrarily keeping people in cages.
The complaint, filed along with the ACLU Immigrants’ Rights Project, the ACLU of Maryland, and the Capital Area Immigrants’ Rights Coalition on behalf of three individuals—Marvin Dubon Miranda, Ajibade Thompson Adegoke, and Jose de la Cruz Espinoza—who seek to represent themselves and a class, alleges that the government improperly places the burden on detained individuals in Baltimore Immigration Court to prove that they are not a danger or a flight risk in order to be eligible for release on bond.
The fact that the detained individual, not the government, bears the burden of proof, makes immigration bond proceedings unlike almost all other custody proceedings in the U.S. In most proceedings where a person’s freedom is at stake, it is up to the government to make the case to detain them. For detained immigrants, however, the system requires them to make the case that they deserve to be released—a difficult feat to accomplish from a jail cell. Moreover, even if a detained individual overcomes the steep challenge of meeting this burden, immigration judges are not required to take into account either that individual’s financial circumstances in setting their bond amount or the individual’s eligibility for release with alternative conditions of supervision. Thus, even individuals who have managed to affirmatively prove that they are not a danger or a flight risk may remain detained simply because they cannot pay a prohibitively high bond.
In filing this case, Sanford Heisler Sharp joins the chorus of community voices in Baltimore and throughout Maryland seeking the release of unnecessarily detained individuals in the midst of a pandemic. Indeed, civil rights activists and public health officials began warning Maryland state officials in early April of the threat posed by COVID-19 to detained individuals. In response, Governor Larry Hogan issued an executive order on April 18, 2020, granting early release to high-risk inmates. In doing so, Governor Hogan recognized both the risk of COVID-19 as well as the reasonableness of alternative conditions for release:
Because of inmates’ close proximity to each other, employees, and contractors in correctional facilities, the spread of COVID-19 there poses a significant threat to their health, welfare, and safety, as well as the communities in which they live or to which they will return.
It is reasonable to expect that certain inmates do not present a threat to public safety and will abide by the restrictions of alternative places of detention, provided there are plans to ensure access to places of residence, social services, and medical care.
Similarly, in Coreas v. Bounds, a federal district court judge in Maryland recently ordered the release of Angel Guzman Cedillo and Williams Kemcha, two individuals detained by ICE who are medically at a high risk of contracting COVID-19.
Dubon-Miranda is the first class action in the U.S. District Court for the District of Maryland to challenge the Baltimore Immigration Court’s procedures for immigration bond hearings. This challenge comes at a critical time. In a crisis like the COVID-19 pandemic, when the chaos of the moment might detract from the fight for systemic and lasting change, this case sends the urgent message that fundamental rights and due process cannot be lost in the shuffle.