The American Civil Liberties Union of Massachusetts, together with the ACLU’s Immigrants’ Rights Project, the ACLU of New Hampshire, the ACLU of Maine, the law firm Araujo and Fisher, the law firm Foley Hoag, and the Harvard Immigration and Refugee Clinic, filed a class action lawsuit yesterday in federal court to challenge the widespread denial of bond hearings to people detained by U.S. Immigration and Customs Enforcement. As the complaint demonstrates, this denial is a violation of statutory and constitutional rights, upending decades of settled law and established practice in immigration proceedings. As a result, thousands of people in Massachusetts will be denied due process.
The complaint alleges that the U.S. Department of Homeland Security and the Department of Justice recently and abruptly began to misclassify people arrested by ICE inside the United States. DHS and DOJ are now systematically reclassifying these people from the statutory authority of 8 U.S.C. § 1226, which usually allows for the opportunity to request bond during removal proceedings, to the no-bond detention provisions of 8 U.S.C. § 1225, which does not apply to people arrested in the interior of the United States and placed in removal proceedings.
“All people in the United States are entitled to due process — without exception,” said Daniel McFadden, managing attorney at the ACLU of Massachusetts. “When the government arrests any person inside the United States, it must be required to prove to a judge that there is an actual reason for the person’s detention. Our client and others like him have a constitutional and statutory right to receive a bond hearing for exactly that purpose. Yet the Trump administration is now ignoring that right and jailing people arbitrarily without a hearing. The Fifth Amendment says that no person can be deprived of liberty without due process of law. This lawsuit seeks to ensure that the promise of our Constitution remains a reality.”
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, which established the current detention regime for people arrested and detained for civil immigration violations. Since then, people arrested inside the United States and placed in removal proceedings, regardless of whether they initially entered without permission, have been subject to 8 U.S.C. § 1226 and thus entitled to a bond hearing unless subject to certain criminal and national security exceptions.
In late 2022, the Immigration Court in Tacoma, Washington began misclassifying § 1226 detainees arrested inside the United States as mandatory detainees under § 1225, solely because they initially entered the country without permission. The U.S. District Court for the Western District of Washington ruled that this practice was likely illegal in April 2025 and ordered a bond hearing for a wrongfully detained litigant.
Nevertheless, three months later, DHS adopted the Tacoma Immigration Court’s unlawful practice nationwide and began to ask immigration judges to deny bond hearings. Some immigration judges rejected this argument, but on September 5, the Board of Immigration Appeals issued a precedential decision that purports to require all immigration judges to misclassify people in this manner. In the short time since, multiple federal courts have ruled that the BIA's decision is incorrect, but DHS and DOJ continue to misclassify people and unlawfully deny bond hearings.
“Federal courts across the country, including here in Maine, have found the government’s attempt to deny bond hearings by misclassifying people under § 1225 to be unlawful,” said Max Brooks, an immigration attorney with the ACLU of Maine. "Millions of people who have been waiting for their day in court are now at risk of being jailed indefinitely over civil violations. We look forward to vindicating the rights of people in this situation with today’s class action lawsuit.”
“ICE’s current refusal to provide bond hearings for detained clients violates due process and upends nearly 30 years of established practice,” said Annelise Araujo, founding principal and owner at Araujo & Fisher LLP. “The people impacted by this policy are neighbors, friends, and family members, living peacefully in the United States and making important contributions to our communities. Currently, the only recourse is to file individual habeas petitions for each detained client — a process that keeps people detained longer and stretches the resources of our courts. We’re proud to team with the ACLU to ask the court to protect their due process rights of our class members.”
This case is brought on behalf of Jose Arnulfo Guerrero Orellana and a putative class of similarly situated individuals. Mr. Guerrero Orellana has been living in the United States for over a decade and is a devoted husband and father. He brings this case to vindicate his own right to a bond hearing — where an immigration judge can determine whether his detention is justified to protect the community or ensure his appearance in court — and that of thousands of other detainees in Massachusetts, Rhode Island, Maine, and New Hampshire who will be denied the opportunity to seek release on bond under the new legal ruling adopted by the executive branch. The complaint alleges that the government's new policy violates constitutional and statutory due process rights and violates the Administrative Procedure Act.
For future filings, visit the case page.
