Immigration and Citizenship

Pereira Brito v. Barr

In Pereira Brito v. Barr, the U.S. Court of Appeals for the First Circuit is considering whether the government may incarcerate someone without bail during deportation proceedings without showing that the person would likely abscond or be dangerous if released.

Case Summary

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 Attorney General William Barr and representatives of ICE, the Department of Homeland Security, and several state facilities that house detainees, 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 by a preponderance of the evidence that the person is a flight risk or is likely to endanger the community if released.  Pereira Brito appealed to the First Circuit to challenge the portion of the district court’s judgment that requires the government to present only a preponderance of the evidence, as opposed to “clear and convincing” evidence, that a detainee is a flight risk or a likely danger to the community.  The government cross-appealed to challenge the remainder of the district court’s judgment, including the conclusion that the government bears the burden of proof at these bond hearings.

CAC filed an amicus brief in support of Pereira Brito and others detained without due process.  Our brief makes 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.

Case Timeline

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