Tipping the Scales: The Effect of Burden of Proof in Immigration Bond Decisions

• In Event: Citizens Across Borders: The Role of Courts in Migration and Asylum

Abstract

Non-citizens subject to deportation are often detained in prisons by the United States government. Like the criminally accused, respondents in immigration proceedings may be released on bond if they are judged not to be a danger to the community or a flight risk. Unlike the criminally accused, however, the burden of proof lies with the respondent, not the government. In this paper, we identify the effect of placing the burden of proof on respondents. To do so, we leverage a decision of the District Court for Massachusetts in 2019, which shifted the burden of proof to the government. Using data on bond hearings from the Executive Office for Immigration Review (EOIR) at the Department of Justice between 2018 and 2020, we conduct a synthetic control study of the effect of the change. Our study has important implications for understanding how legal institutions influence justice outcomes. They also speak directly to ongoing litigation which has raised questions about the constitutionality of placing the burden of proof on detained individuals in the context of bond hearings.

Authors

• Jeffrey Staton, Emory University

• Anthony James DeMattee, Emory University

• Devon Thurman, Emory University

• Grace Shrestha