Federal judge says immigrant detainees’ due process rights were violated in bond hearings
The federal government violated the due process rights of detainees when placing the burden on them to prove they would not pose a flight risk or public safety threat if released, a federal judge found.
In an order published Wednesday, Chief Judge Patti B. Saris sided with attorneys in Massachusetts representing undocumented immigrants who they say were unconstitutionally detained. Prosecutors representing the federal government, she wrote, should bear the burden of proving dangerousness and flight risk in hearings and she ordered the government to do so in future hearings.
“Since these claims challenge the Government’s immigration detention procedures, in the absence of an injunction, there is a risk irreparable of harm because the class members who have no or little criminal history face a loss of their liberty by incarceration in jail for months and sometimes years,” Saris wrote.
A class-action lawsuit, filed in June, questions the burden placed on detainees during bond hearings in immigration court. The American Civil Liberties Union of Massachusetts and Boston-based law firm Mintz filed the suit after three immigrants were detained by Immigration and Customs Enforcement in Boston.
Among them was Gilberto Pereira Brito, an undocumented father of three in Brockton. Brito was arrested in March. ACLU attorneys argued his detention not only hurt him but his sick U.S.-citizen wife and children since he was the primary breadwinner.
Gilberto Pereira Brito’s children.
The lawsuit names the other named plaintiffs as Florentin Avila Lucas and Jacky Celicourt of New Hampshire, who were detained at the time.
They have since been released.
Sari’s order states that an immigration judge must evaluate whether a detainee can pay a bond above $1,500 and consider other release conditions, including making a detainee wear a GPS monitor.
Saris ordered that immigration courts follow these requirements, effective Dec. 13. Saris also ordered the federal government to notify relevant parties and file a certification acknowledging the Boston federal court order by Dec. 16.
The ACLU of Massachusetts called the ruling “groundbreaking victory for immigrants’ rights” in a statement issued Wednesday afternoon.
“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.”
John Mohan, a representative for ICE Boston, declined to comment, citing ongoing litigation.
ICE oversees enforcement of immigrants in parts of New England, including Massachusetts. The Executive Office for Immigration Review, under the Department of Justice, oversees immigration courts.
Huy Le, representing the DOJ, argued in a previous court hearing that immigrant detainees should bear the burden of proving they’re not dangerous or a flight risk. He argued an injunction on their procedures in immigration court would contradict congressional intent and impose a major administrative burden on an already backlogged immigration court system.
Bond hearings for detainees include only a subset of the full population of people appearing in the immigration courts. The wait for hearings vary widely from one type of case to another, but as a whole the backlog is getting worse, according to a recent report from the Syracuse University Transactional Records Access Clearinghouse.
The immigration courts’ backlog has swelled over the past decade and continue to worsen under the Trump administration, despite a quota implemented in the fiscal 2019. In Massachusetts, more than 33,000 immigrants are waiting for their day in court, often for three or four years, according to a TRAC report in October.
According to Saris, the government failed to explain how addressing alleged due process violations would affect the immigration courts’ backlog.
“There is no evidence in the record that shifting the burden to the government and clarifying the standard of proof will make hearings more time consuming or cases more difficult to adjudicate,” she wrote.
Saris also ordered that immigration detainees who already had bond hearings — who attorneys argue might also be unfairly detained — are entitled to new bond hearings if they can prove they faced prejudice.
ACLU and Mintz attorneys requested that the federal government provide a list of immigrant detainees, including their names, how long they’ve been detained and other personal details, which was approved. The attorneys also argued ICE should provide a statement on each detainee about whether it would fight that detainee’s claims of having unfair bond hearings and why.
Saris did not side with the attorney’s request on the statements, calling it burdensome. She did, however, order the government to provide a list of immigrant detainees who have already had bond hearings and may have had their due process rights violated. It would be up to the detainees and their immigration attorneys, she added, to challenge the results of their bond hearings in separate hearings.
Individually, immigrants and their attorneys can challenge their detention by filing a request known as a habeas corpus petition.
Susan Finegan, an attorney at Mintz, said the ruling will help make sure immigrants in the courts or who are detained will get the constitutional and statutory protections they deserve.
She said, “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.”
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