Judge rules immigrants facing deportation have a constitutional right to due process, too

A federal judge in Boston ruled this week that federal authorities who want to lock up immigrants who have no major criminal records and who face deportation will have to prove the people are dangerous or pose a flight risk - rather than making the immigrants prove they aren't dangerous.

US District Court Judge Patti Saris wrote that the current policy, in which people could be detained - often because the bail is far higher than they could pay - if they failed to satisfy a judge they were not a danger to society, violates the immigrants' constitutional right to due process by forcing them to prove themselves innocent, rather than forcing the government to prove, with "clear and convincing evidence," that they pose a danger or will try to run away.

Saris's ruling, issued Wednesday, applies to people who have been detained by federal authorities in Massachusetts or who are under the jurisdiction of the Boston immigration court and who are seeking court hearings to seek permanent residency in the US - and who do not have serious criminal records. The Department of Justice has yet to say whether it will appeal.

Saris rejected the government's assertion that siding with the immigrants "would impose a severe administrative burden" since the immigration-court system is already severely backlogged:

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.

In addition to requiring the government to prove an immigrant poses some sort of threat, Saris continued, judges have to let people facing detention suggest alternates to bail if they have a family to support or could not make the government's proposed bail - such as wearing GPS monitors.

Saris's ruling, while it applies broadly - she noted that Boston's immigration court handled 700 bond hearings between Nov. 1, 2018 and May 7, 2019 - focused on three specific people facing bond hearings, in whose names a class-action lawsuit was filed:

Gilberto Pereira Brito

Gilberto Pereira Brito is a citizen of Brazil. Immigration and Customs Enforcement ("ICE") arrested him at his home in Brockton, Massachusetts on March 3, 2019. On April 4, 2019, Pereira Brito received a bond hearing in Boston Immigration Court where he was required to prove that he is not a danger or a flight risk in order to be released from custody. At the hearing, Pereira Brito presented evidence that he lives in Brockton with his wife and three young children, all of whom are U.S. citizens. Further, his wife is disabled and cannot work, which means Pereira Brito is the sole provider for his family. Prior to his arrest, Pereira Brito voluntarily disclosed his location to the Government as part of the process for applying for lawful permanent resident status through his wife. In immigration court, meanwhile, he applied for cancellation of removal on the basis that he has been in the United States for more than 10 years and has U.S. citizen family members who would suffer an exceptional and extremely unusual hardship were he removed. Other than his March 2019 arrest by ICE, Pereira Brito had not been arrested for, charged with, or convicted of any crimes since May 2009. The immigration judge denied him bond because he "did not meet his burden to demonstrate that he neither poses a danger to the community nor is a risk of flight."

Florentin Avila Lucas

Florentin Avila Lucas is a citizen of Guatemala. Customs and Border Patrol agents arrested him outside a thrift store in Lebanon, New Hampshire on March 20, 2019. On May 2, 2019, Avila Lucas received a bond hearing in Boston Immigration Court where he was required to prove that he is not a danger or a flight risk in order to be released from custody. At the hearing, he presented evidence that he had no criminal history and he had worked at the same dairy farm located in Claremont, New Hampshire since 2006. Avila Lucas worked approximately 70 hours per week at the dairy farm. The immigration judge denied him bond because he "failed to meet his burden of proof to show that he is not a danger or flight risk."

Jacky Celicourt

Jacky Celicourt is a citizen of Haiti. ICE arrested him on January 16, 2019. On February 7, 2019, Celicourt received a bond hearing in Boston Immigration Court where he was required to prove that he is not a danger or a flight risk in order to be released from custody. At the hearing, he presented evidence that he arrived in the United States in 2018 on a tourist visa and that he moved to Nashua, New Hampshire where he worked in construction and roofing. Previously, Celicourt had been politically active in Haiti but was forced to flee after being attacked by armed men. Based on this experience, he was applying for asylum, withholding of removal, and protection under the Convention Against Torture. Celicourt did not have a criminal record other than a single charge for theft of a pair of headphones that cost $5.99. On January 16, 2019, he pleaded guilty to the theft charge and was fined $310, which was suspended for one year. The immigration judge denied Celicourt bond because he "failed to prove he’s not a danger to property or a flight risk."