• A lawsuit, filed April 30, alleges that the federal government is violating the due-process rights of noncitizens.
  • At bond hearings, immigrants are forced to prove they are not a danger or flight risk.
  • It's "constitutionally deficient, and it just makes no sense," attorney Deborah Marcuse argued in an interview with Business Insider.
  • Plaintiffs say the pandemic should spur the government to rethink its approach to immigrant detention. There are 552 confirmed cases of detained immigrants with COVID-19, as of May 1, out of 1,073 who have been tested.
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Normally, the US government has to make the case as to why a person who has been detained — but not convicted — should remain behind bars. Immigrants, however, are not endowed with the same legal rights and are presumed a flight risk unless they themselves make a persuasive case for why they would stay put.

It's "constitutionally deficient," Deborah Marcuse, a managing partner at the law firm Sanford Heisler Sharp, told Business Insider, "and it just makes no sense." Especially now, she argued, given that there's a pandemic.

With the coronavirus sweeping through detention centers — there 552 confirmed cases of detained immigrants with COVID-19, as of May 1, out of 1,073 who have been tested — advocates are asking, shouldn't the state reserve incarceration for those exceptional cases?

The American Civil Liberties Union certainly thinks so. In a class-action lawsuit filed April 30 in the US District Court for the District of Maryland, the group's state chapter accuses the federal government, and Attorney General William Barr in particular, of depriving non-citizens of their "most basic due process protections."

The lawsuit charges that "in contrast to nearly every other custody hearing in the US legal system," immigrants "bear the burden of proving, to the satisfaction of an immigration judge, that they pose no danger or flight risk and should be free." 

Judges are also not required to take into consideration a non-citizen's financial circumstances, meaning bond, when obtained, is often "set unnecessarily beyond their financial means."

The US Department of Justice did not immediately return a request for comment.

Marcuse, whose firm is a co-plaintiff in the suit, terms that it is a "constructive denial of bond" — effectively the same thing as not offering it at all. She expects to file a preliminary injunction the week of May 4, asking the court to grant immigrants relief, right now, before the case is decided.

"In the era of the COVID pandemic, where it can be a death sentence to be detained, the irreparable harm is exponentially greater," Marcuse said. 

The lawsuit names three men as plaintiffs, arguing their cases are representative of those detained: Marvin Dubon Miranda, a 35-year-old from El Salvador with a 13-year-old son who claims he fears being tortured by the gang MS-13 if he is deported; Ajibade Thompson Adegoke, a 42-year-old who fled alleged political persecution in Nigeria; and Jose de la Cruz Espinoza, a 25-year-old from Mexico who came to the US when he was 14 and was detained by ICE after getting into an altercation with his brother.

The men had been detained without hearings for anywhere from 78 to 164 days, at the time of filing. Every additional day puts them at greater risk of infection, the lawsuit argues, citing a recent study published in the Journal of Urban Health that estimates over two-thirds of detained immigrants could ultimately contract the coronavirus.

Should the court agree that the threat of infection poses an unjust risk to their lives, potentially hundreds of detained persons, if not thousands, could be released.

It was 1999 when the Board of Immigration Appeals decided that the government no longer needed to prove that someone might be dangerous, or a flight risk, shifting the burden to prove that one is not to the defendant instead. The status quo today was the status quo under both President George W. Bush and President Barack Obama.

However, the coronavirus pandemic has added a new layer to the issue.

"ICE under the Trump administration has been failing to take sufficient action to protect its detainees from COVID-19, including by not releasing nearly enough of them from custody," Austin Webbert, an associate at Sanford Heisler Sharp, told Business Insider. "The Trump administration's inaction has driven the irreparable harm here to lethal proportions."

Have a news tip? Email this reporter: cdavis@insider.com