The ACLU of Massachusetts and the ACLU of New Hampshire today filed a class action lawsuit 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. That 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. Last month, ICE detention numbers spiked at 52,398 people—an apparent all-time high, and far above the level that Congress authorized earlier this year.

“People are being deprived of freedom—jailed, and separated from their families and livelihoods—simply because they cannot prove a negative,” said Carol Rose, executive director of the ACLU of Massachusetts. “This approach to detention is contrary to common sense and our fundamental values. In America, liberty should be the norm for everyone—and detention the last resort. We will continue to fight the gross overuse of detention in the immigration system.”

SangYeob Kim, immigration legal fellow at the ACLU of New Hampshire, said, “In order to keep someone behind bars in this country, the government must prove why they should be detained: but for immigrants, that is not the case. This lawsuit raises an alarming issue where due process is being denied to those that have the most difficulty accessing counsel and navigating the American immigration system. It is happening all too often, and today we’re suing to stop this terrible practice.”

“This practice of denying due process to those who are detained is a violation of immigrants’ rights, freedom and safety – and it’s happening right in our backyard. Our hope is that this lawsuit will ensure that 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.

Together with Mintz, the ACLU filed the class action lawsuit against Attorney General William Barr and representatives of ICE, the Department of Homeland Security, and several state facilities that house detainees under contract with the federal government. 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.

The named plaintiffs in the case are:

  • Gilberto Pereira Brito: On March 3, 2019, ICE arrested Pereira Brito at his home. He lives in Brockton with his wife—a U.S. citizen who has serious health problems and is unable to work—and his three young children (pictured). In April, he received a detention hearing before an immigration judge in the Boston Immigration Court. The immigration judge required that, in order to be released on bond, Pereira Brito bear the burden to prove that he is not a danger or flight risk. Though the immigration judge acknowledged that he “has been in the United States for over a decade, has a fixed address, and has existing family ties,” the court ruled that Pereira Brito did not demonstrate “that he neither poses a danger to the community nor is a flight of risk.” Without an adequate detention hearing, he will likely remain jailed throughout the remainder of these proceedings. He has already been in jail for more than three months.

  • Florentin Avila Lucas: On March 20, 2019, Avila Lucas—a dairy worker in New Hampshire— was taken into custody by Border Patrol agents who had been conducting a surveillance operation in Lebanon, New Hampshire, without uniforms in an unmarked vehicle. In May, he received a detention hearing before an immigration judge in the Boston Immigration Court. The immigration judge required that, in order to be released on bond, Avila Lucas bear the burden to prove that he is not a danger or flight risk. Despite the fact that he has no criminal record and is an established member of his community, the immigration judge denied his request for release. Without an adequate detention hearing, he will likely remain jailed throughout the remainder of his immigration proceedings. He has already been in jail for nearly three months.

  • Jacky Celicourt: On January 16, 2019, ICE arrested Celicourt as he walked out of a Nashua courtroom. The next month, he received a detention hearing before an immigration judge in the Boston Immigration Court. The immigration judge required that, in order to be released on bond, Celicourt bear the burden to prove that he is not a danger or flight risk. The immigration judge denied his request for release. Without an adequate detention hearing, he will likely remain jailed throughout the remainder of his immigration proceedings. He has already been in jail for nearly six months.

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