ACLU client Gilberto Pereira Brito was separated from his young children for more than three months during his detention.

The ACLU of Massachusetts, together with the ACLU of New Hampshire, filed a class action lawsuit in June 2019 challenging the government’s practice of denying due process to detained immigrants.

The lawsuit has been filed on behalf of immigrants who are currently jailed due to flawed detention hearings in which the detainee was required to bear the burden of proof. The named plaintiffs in the case include a Massachusetts man who lives with his U.S. citizen wife and three young children, a New Hampshire dairy farmer, and a New Hampshire man who fled Haiti to escape political violence.

The government’s practice runs contrary to multiple federal court decisions holding that such a procedure is unlawful. Under the U.S. Constitution, the government cannot take away any person’s liberty without showing that is necessary to do so. During immigration proceedings, however, U.S. Immigration and Customs Enforcement (ICE) routinely holds people in jail for long periods of time without ever being required to make such a showing. Instead, immigrants are jailed until they can prove that they should not be detained by showing that they are not a danger and not a flight risk.

The result is a vast civil detention apparatus for people who are merely accused of being subject to deportation and who often have lawful pathways to remain in the United States. The ACLU argues that without class-wide relief, the government will continue to deny fundamental due process to immigrants detained in Massachusetts or otherwise receiving a bond hearing in the Boston immigration court.

On August 6, 2019, a federal judge certified the ACLU’s case as a class action lawsuit. As a result, the court can ensure due process for potentially thousands of current and future detainees in New England.

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.

The ACLU of Massachusetts and our co-counsel have appealed one component of the favorable ruling, asking the First Circuit to hold that the government to provide clear and convincing evidence—and not just a preponderance of the evidence—in order to detain immigrants on the grounds of flight risk. The government has cross-appealed, asking the First Circuit to vacate the district court decision in its entirety, including its rulings that the government must bear the burden of proof at a bond hearing and that immigration judges must consider an someone's ability to pay and alternative conditions of release in a bond hearing.

Listen to the oral argument for the appeal in this case here.

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Photo: Gilberto Pereira Brito's three children during his detention. Courtesy of the Pereira Brito family.


Adriana Lafaille, Dan McFadden, and Matthew Segal (ACLU of MA); Gilles Bissonnette, Henry Klementowicz, and SangYeob Kim (ACLU of NH); Michael Tan (ACLU); Susan M. Finegan, Susan Cohen, Andrew Nathanson, Mathilda S. McGee-Tubb, and Ryan Dougherty (Mintz)