BC Law Graduate Speaks On Immigration

The Center for Human Rights and International Justice hosted Staff Attorney for the American Civil Liberties Union (ACLU) of Massachusetts Dan McFadden, BC Law ’09, at a luncheon on Thursday. McFadden spoke about what he considers to be one of the most profound human rights violations perpetrated by the United States government—the unjust detention of immigrants and their families. 

McFadden is a litigator of civil rights and civil liberties, particularly issues relating to immigrants’ rights. Prior to working for the ACLU, he worked for seven years as a litigation attorney in private practice and also served as a surface warfare officer in the U.S. Navy. 

Since September 2018, McFadden has been a staff attorney for the ACLU, working to protect the civil rights of people held in immigration detention, and also advocating for criminal defense reform and government transparency. He has received several professional recognitions, including awards from the Political Asylum / Immigration Representation Project and Massachusetts Lawyers Weekly.

McFadden described the challenges and successes of Pensamiento vs. McDonald (2018), a case he led concerning the issues at the center of the immigration detention debate, and what winning this case meant on a broader scale. 

“This was a case about when does the government get to put somebody in jail? Do they have to come forward with some evidence to show that there is a reason that that person should be in jail?” he said. “Or can they put someone in jail by default?”

He said that, in the United States, there are currently about 35,000 to 50,000 people in immigration detention, many of whom were detained despite having no history of criminal activity nor any reason for the U.S. government to believe that they will flee. Separated from their families, they are held in detention for anywhere from months to years, while backlogged immigration courts slowly process their cases.

McFadden explained that in deciding Pensamiento, the court essentially ruled that immigrants have “due process” rights, meaning they cannot be held indefinitely and the burden lies on the government to prove that they belong in detention. The government appealed this ruling, but later dismissed the appeal, prompting a number of subsequent cases to further clarify and resolve issues involving the due process rights of immigrants.

The ACLU later brought this issue forward as a class action, arguing that the existing court decisions that held it unconstitutional to put the burden on individuals should be expanded to encompass any immigrant who has been detained in Massachusetts or has come to the Boston immigration court, McFadden said. 

In November, the court ruled that the Constitution does apply to people in this situation, and that the government cannot detain them unless it shows that there is clear and convincing evidence of dangerousness or likeliness to flee. The court also ruled that immigration courts must consider the individual’s financial resources when setting bail. 

“This was a really important victory for the rights of all Americans because we shouldn’t live in a country where anyone can be locked up by default, particularly people who find themselves in this situation,” McFadden said. 

Despite this victory, McFadden stressed that there are still a large number of injustices both within the United States and globally regarding the human rights violations of immigrants. Hundreds of thousands of people are deported annually, and private immigration detention facilities have turned into businesses—earning profits in the billions of dollars.

McFadden argued that this system flips the Constitution on its head—the system, he argues, incentivizes detaining as many people as possible though the assumption of the Constitution is that as few people as possible should be detained.

Another injustice McFadden addressed is the current administration’s practice of separating families to deter legal immigration. Separating children from their parents as a tactic to threaten and dissuade others from immigrating to the United States has become part of U.S. policy. This policy inflicts emotional pain on children and their parents, and due to flawed processes and record-keeping, risks their permanent separation.

McFadden stressed to the audience members that they do not have to be attorneys to effect change on these matters, and he called for them to exercise advocacy in other ways, such as signing petitions on the ACLU website

“There’s a tremendous opportunity for people to be engaged as citizens and activists and make a lot of positive change that way,” McFadden said.

January 27, 2020