Media Contact

Ari Schechter,

August 20, 2021

Proving a negative is an unconstitutional burden, court rules

CONCORD, N.H. – In a Thursday evening ruling, the First Circuit Court of Appeals declared unconstitutional the government’s practice of forcing detained immigrants to prove why their continued detention is unjustified. Under the U.S. Constitution, the government cannot take away a person’s liberty without showing that it is necessary to do so, but that is exactly what had been happening—namely, the government was requiring detained immigrants to prove a negative to secure their freedom. The Court’s decision, which concurs with the lower court, states that the government should bear the burden of justifying an immigrant’s detention, not the immigrant themself.  This case was brought by the ACLU-NH and the law firm Sheehan Phinney.

“This victory means that in order to keep an immigrant behind bars in this country, the government must prove why they should be detained—not the other way around. Our client’s case raised an alarming issue where, more broadly, due process was being denied to those that have the most difficulty accessing counsel and navigating the American immigration system." said SangYeob Kim, Immigration Staff Attorney at the ACLU of New Hampshire. "This court ruling is a victory not only for due process, but for the immense pain and wasted time that has impacted countless immigrants as they navigate the immigration system. It is heartbreaking to think of how many people have been unconstitutionally kept in jail separated from their families, despite not being a danger or a flight risk, simply because they were tasked with proving a negative. We have been fighting this case since 2019 and hope that with this court ruling today, no person will have to endure this again.”

In its decision, the First Circuit further stated that the government’s practice of telling detained immigrants that they can end their detention at any time by “simply conceding” to removal and being deported, “is a bit like telling detainees that they can help themselves by jumping from the frying pan into the fire.” 

Yesterday’s ruling also coincides with an ongoing federal class action lawsuit filed by the ACLU affiliates in Massachusetts and New Hampshire. In that case, a federal judge ruled in November 2019 that the government’s practice of detaining certain immigrants by default violates both due process and the Administrative Procedure Act. The ruling holds that class members in New England are entitled to bond hearings at which the government bears the burden of justifying an immigrant’s detention, and at which the immigration court must consider someone’s ability to pay when setting a bond amount. However, this case has been appealed by the government to the First Circuit and is still pending.

Both lawsuits are part of the ACLU of New Hampshire’s Immigrants’ Rights Project, which was launched in 2018 and works with over a dozen organizations using targeted impact litigation, advocacy, and public outreach to protect the rights and liberties of immigrant and refugee Granite Staters.  

More information on this case can be found here:

More information on the class action case can be found here: