Authors

Colin Brady

Freedom in the Balance: Procedural Due Process Rights and the Burden of Proof in Detention Hearings in Immigration Removal Proceedings

Abstract

Part I of this Note considers the statutory and regulatory basis for immigration detention. Part II reviews prior cases decided by the Board of Immigration Appeals (BIA) that bear on the question. Part III discusses how the Supreme Court has addressed previous procedural due process concerns within the immigration system and how lower courts have reacted. Part IV lays out how the Supreme Court has conceptualized the constitutional due process rights extended to noncitizens and how that has changed over the years. Part V considers how other categories of individuals are treated with respect to involuntary detention and the burden of proof. Part VI presents the circuit split and contrasts the two Courts’ analytical approaches. Finally, Part VII synthesizes these considerations and presents an argument that the government must bear the burden of proof to avoid violating the individual’s constitutional due process rights.

This abstract has been taken from the author's introduction.

Repository Citation

Colin Brady, Freedom in the Balance: Procedural Due Process Rights and the Burden of Proof in Detention Hearings in Immigration Removal Proceedings, 31 Wm. & Mary Bill Rts. J. 1241 (2023), https://scholarship.law.wm.edu/wmborj/vol31/iss4/6