Gilberto Pereira Brito has lived in the United States for over a decade with his wife and three young children, all of whom are U.S. citizens.  In March 2019, Pereira Brito was arrested by U.S. Immigration and Customs Enforcement (ICE) agents at his home outside Boston, Massachusetts.  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 of proving that he is not a danger to the community or a flight risk.

Pereira Brito and others like him have been detained pursuant to 8 U.S.C. § 1226(a) while their respective immigration proceedings are ongoing.  Although this statute permits the release of detainees on bond or parole, immigration judges have been denying requests for release by applying a standard that the executive branch is requiring them to apply.  Under this standard, the government does not need to justify its detention of a person in deportation proceedings by demonstrating that the person will likely abscond or be dangerous if released.  Instead, a person who is detained may be released only if he can prove that he will not be dangerous or a flight risk.

The ACLU of Massachusetts and the ACLU of New Hampshire filed a class-action lawsuit on behalf of Pereira Brito and others against various immigration officials, arguing that the standard used at bond hearings violates the Due Process Clause of the Fifth Amendment.  The district court largely agreed, holding that in order to detain a person pending deportation proceedings, the government must establish that the person is a flight risk or is likely to endanger the community if released.  The government appealed this ruling.

CAC filed an amicus brief in support of Pereira Brito and others detained without due process.  Our brief made three essential points.  First, the Fifth Amendment protects noncitizens as fully as it does citizens, shielding every “person” (not just every “citizen”) from deprivations of life, liberty, and property without due process of law.

Second, the Supreme Court has repeatedly held that the government must satisfy a heightened standard of proof—“clear and convincing evidence”—before depriving a person of a “significant liberty interest,” whether or not that person is a citizen and whether or not the government is exercising its powers over immigration.  For citizens and noncitizens alike, “liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”

Finally, while the Supreme Court has permitted Congress to adjust the normal due process presumptions for certain removable noncitizens, the Court has allowed such adjustments only in narrow circumstances—where Congress has spoken clearly in legislation based on abundant evidence that particular groups of noncitizens were especially dangerous, and where strong procedural protections guarded against erroneous detention.  None of those special circumstances is present here.  Instead, without authorization from Congress, the executive branch has unilaterally adopted a policy requiring the presumptive incarceration of any person it accuses of being a deportable noncitizen.  That policy violates the Due Process Clause.

In December 2021, the First Circuit affirmed the district court’s holding that noncitizens detained under 8 U.S.C. § 1226(a) are entitled to a bond hearing in which the government must demonstrate that the detainee is either dangerous or a flight risk.  As the court explained, this question was settled by the First Circuit’s August 2021 ruling in Hernandez-Lara v. Lyons, which was argued together with Pereira Brito and decided by the same panel of judges.  In Hernandez-Lara, the First Circuit drew heavily from CAC’s brief in upholding the due process rights of noncitizens, most notably in explaining that the Supreme Court has permitted immigration detention without the normal opportunity for bail only when such detention is clearly authorized by legislation, limited to particular groups of noncitizens that Congress has deemed especially dangerous, and justified by extensive congressional findings.

Despite reaffirming the important due process holding of Hernandez-Lara, the First Circuit vacated the district court’s ruling in Pereira Brito, concluding that the court lacked jurisdiction to issue injunctive relief in favor of the class.  As a result, it appears that wrongly detained noncitizens can obtain relief only in individually brought proceedings, not in class actions.  The First Circuit held, however, that class-wide declaratory relief remains available.  It also noted that even without class-wide injunctive relief, district courts retain “other tools for fairly and efficiently managing similar individual requests for injunctive relief,” and that “our decision in Hernandez-Lara establishes binding precedent that adds to that toolbox by effectively accelerating the adjudication of similar habeas petitions within this circuit.”