ACLU client Gilberto Pereira Brito with his wife and three children after his release from ICE detention. Photo courtesy of the Pereira Brito family.

In a first-of-its-kind ACLU class action lawsuit, a federal judge ruled that the government’s practice of detaining certain immigrants by default violates both due process and the Administrative Procedure Act.

The ruling holds that a class of immigrants 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. These holdings mark a groundbreaking victory for immigrants’ rights.

“In America, liberty should be the norm for everyone—and detention the last resort,” said Carol Rose, executive director of the ACLU of Massachusetts. “This decision affirms that the government’s approach to detention is contrary to common sense and our fundamental values. We are thrilled that, as a result of this order, civil rights will be protected and families will be reunited.”

“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,” said SangYeob Kim, immigration staff attorney at the ACLU of New Hampshire. "This lawsuit raised an alarming issue where due process was being denied to those that have the most difficulty accessing counsel and navigating the American immigration system.”

In June, the ACLU of Massachusetts, the ACLU of New Hampshire, and the law firm Mintz filed the lawsuit on behalf of immigrants who were jailed due to flawed detention hearings in which the detainee was required to bear the burden of proof. 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 being required to make such a showing. Instead, immigrants are jailed until they can prove that they should not be detained by proving that they are not a danger and not a flight risk.

As a result of the ACLU lawsuit, the three named plaintiffs have been released from detention. In August, a federal judge granted class certification, extending the impact of the lawsuit to potentially hundreds of immigrants in New England. Today’s ruling acknowledges that, since November 2018, hundreds of members of the ACLU class action have been detained following unlawful hearings.

“We are gratified by Judge Saris’ decision today, which will help to ensure that immigrant individuals who are detained in Massachusetts, or whose cases that are adjudicated here, will get the constitutional and statutory protections they deserve,” said Susan Finegan, Member and Chair of the Pro Bono Committee at Mintz. “The government has systematically deprived these individuals of their liberty without showing a good reason for doing so, and we are proud to play a role in ending this baseless practice."

The ruling announces a permanent injunction, effective December 13, 2019, that will require the government to bear the burden of proof, and for the immigration court to consider ability to pay, at bond hearings in the Boston Immigration Court, which serves Maine, New Hampshire, Vermont, Massachusetts, and Rhode Island. The permanent injunction will also require the government to disclose information about people who have already been ordered detained in prior immigration hearings.

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