In this habeas corpus action on behalf of immigrant Ana Ruth Hernandez-Lara, this case challenges the government’s unconstitutional practice of requiring detained immigrants to prove that their continued detention is unjustified.  However, during these detention hearings, the government should bear the burden of justifying an immigrant’s detention.  Under the U.S. Constitution, the government cannot take away a person’s liberty without showing that is necessary to do so. Despite these constitutional protections, ICE routinely holds immigrants in jail for long periods of time without ever being required to make such a showing. Instead, immigrants are unconstitutionally jailed until they can prove that they are not a danger and not a flight risk. 

In this case, on July 25, 2019, a federal judge ruled that ICE violated Ms. Hernandez Lara’s due process rights when it conducted a bond hearing where she had the burden of showing that she was not a danger and not a flight risk.  The Court further ruled that due process requires that the burden of showing dangerousness and flight risk must be on the government by clear and convincing evidence.  In this case, Ms. Hernandez-Lara lost her original bond hearing only because the burden was on her. At her original hearing, even the Immigration Judge told her that he was not sure whether the evidence presented by the government was enough to find that she is dangerous.  However, because the burden was on her, he had to deny her bond.  After our victorious July 25, 2019 court order, Ms. Hernandez-Lara received a new bond hearing and was released.

The Government has appealed this case to the First Circuit Court of Appeals, and the ACLU-NH brief was filed on September 30, 2020

On August 19, 2021, in a historic decision, the First Circuit affirmed the lower court's ruling and held that the government should bear the burden of justifying an immigrant’s detention, not the immigrant themself.


Bryanna K. Devonshire and Courtney H.G. Herz of Sheehan Phinney Bass & Green, PA, and SamgYeob Kim and Gilles Bissonnette of the ACLU-NH

Date filed

September 30, 2020


First Circuit Court of Appeals



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