Brito v. Barr

415 F.Supp.3d 258

Gilberto Pereira BRITO, Florentin Avila Lucas, and Jacky Celicourt, individually and on behalf of all those similarly situated, Plaintiffs-Petitioners,

v.William BARR, Attorney General, U.S. Department of Justice, et al., Defendants-Respondents.

Civil Action No. 19-11314-PBS

United States District Court, D. Massachusetts.

Filed November 27, 2019

Adriana Lafaille, Daniel L. McFadden, Matthew Segal, American Civil Liberties Union, Andrew Nathanson, Jennifer J. Mather, Ryan T. Dougherty, Susan J. Cohen, Susan M. Finegan, Mathilda McGee-Tubb, Andrew Nathanson, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC, Boston, MA, Michael Tan, American Civil Liberties Union Federation, San Francisco, CA, SangYeob Kim, Gilles R. Bissonnette, Henry R. Klementowicz, American Civil Liberties Union Foundation of New Hampshire, Concord, NH, for Plaintiffs-Petitioners.

Carlton F. Sheffield, Huy Le, J. Max Weintraub, U.S. Department of Justice, Washington, DC, Rayford A. Farquhar, United States Attorney's Office, Boston, MA, for Defendants-Respondents.

John A. Hawkinson, Cambridge, MA, pro se.

MEMORANDUM AND ORDER

Saris, C.J.

INTRODUCTION

In this class action, Plaintiffs challenge the procedures at immigration court bond hearings on the grounds they violate the Fifth Amendment Due Process Clause, the Administrative Procedure Act ("APA"), and the Immigration and Nationality Act ("INA"). Specifically, Plaintiffs claim that the allocation of the burden of proof to the alien and failure to consider alternative conditions of release and the alien's ability to pay are unlawful with respect to aliens detained under 8 U.S.C. § 1226(a), the provision applicable to aliens with no serious criminal convictions who are not subject to an order of removal.

In August 2019, the Court certified two classes asserting the due process claim.

Pre-Hearing Class: All individuals who (1) are or will be detained pursuant to 8 U.S.C. § 1226(a), (2) are held in immigration detention in Massachusetts or are otherwise subject to the jurisdiction of the Boston Immigration Court, and (3) have not received a bond hearing before an immigration judge.

Post-Hearing Class: All individuals who (1) are or will be detained pursuant to 8 U.S.C. § 1226(a), (2) are held in immigration detention in Massachusetts or are otherwise subject to the jurisdiction of the Boston Immigration Court, and (3) have received a bond hearing before an immigration judge.

Plaintiffs now move to modify the certified classes to include the administrative law claim. They also move for summary judgment on both claims.

After hearing, the Court ALLOWS Plaintiffs' motion to modify the class definitions (Dkt. No. 72) and ALLOWS their motion for summary judgment. (Dkt. No. 67). The Court ALLOWS IN PART and DENIES IN PART the requested declaratory and injunctive relief.

In summary, the Court holds and declares as follows: First, the Board of Immigration Appeals ("BIA") policy of placing the burden of proof on the alien at 8 U.S.C. § 1226(a) bond hearings violates due process and the APA. Second, due process requires the Government prove at § 1226(a) bond hearings an alien's dangerousness by clear and convincing evidence or risk of flight by a preponderance of the evidence. Third, due process requires the immigration court to evaluate an alien's ability to pay in setting bond, and consider alternative conditions of release, such as GPS monitoring, that reasonably assure the safety of the community and the alien's future appearances. Fourth, the Government shall produce to class counsel certain information regarding each member of the Post-Hearing Class in order to facilitate individual habeas petitions challenging their continued detention.

FACTUAL BACKGROUND

I. Bond Hearings

A. The Class Representatives

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 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 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."

Following the commencement of this lawsuit, ICE released all three Class Representatives from custody on bond.

B. Bond Hearings

Between November 1, 2018 and May 7, 2019, Boston Immigration Courts held bond hearings for 700 aliens, and Hartford Immigration Courts held bond hearings for 77 aliens. Immigration judges issued decisions after 651 of those hearings, denying release on bond in approximately 41% of cases. The average bond amount set during this period was $6,302 and $28,700 in the Boston and Hartford Immigration Courts, respectively. About half of the aliens were still in custody ten days after bond was set. During that same period, the median case length was 129 days, the 25th percentile was 49.5 days, and the 75th percentile was 732 days.¹

DISCUSSION

I. Statutory and Regulatory Framework

Pursuant to 8 U.S.C. § 1226(a), "an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States." Unless the alien is removable on certain criminal or terrorist grounds, see id. § 1226(c), the Attorney General may continue to detain him or may release him on "conditional parole" or "bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General," id. § 1226(a)(1)–(2). After ICE makes the initial decision to detain an alien, the alien may request a bond hearing in immigration court at any time before a removal order becomes final. 8 C.F.R. § 236.1(d)(1). The immigration court's bond decision is appealable to the BIA. Id. § 1003.19(f). Notably, § 1226(a) is silent as to whether the Government or the alien bears the burden of proof at a bond hearing and what standard of proof that party must meet. See 8 U.S.C. § 1226(a).

The BIA has held that at a bond hearing under § 1226(a) "[t]he burden is on the alien to show to the satisfaction of the Immigration Judge that he or she merits release on bond." In re Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006) ; In re Adeniji, 22 I. & N. Dec. 1102, 1112-13 (BIA 1999). This language is drawn from a regulation governing the authority of immigration officers who may issue arrest warrants. See 8 C.F.R. § 236.1(c)(8) (requiring the alien to "demonstrate to the satisfaction of the officer" that he is neither dangerous nor a flight risk to be released). The BIA has applied the burden allocation and standard of proof in 8 C.F.R. § 236.1(c)(8) to bond determinations by immigration judges. See Adeniji, 22 I. & N. Dec. at 1112-13. The BIA has held that the alien must show to the satisfaction of the immigration judge that he or she is not "a threat to national security, a danger to the community at large, likely to abscond, or otherwise a poor bail risk." Guerra, 24 I. & N. Dec. at 40. The BIA has repeatedly reaffirmed that the burden of proof falls on the alien. See, e.g., Matter of Fatahi, 26 I. & N. Dec. 791, 793 (BIA 2016).

The Supreme Court recently addressed the procedures required at a bond hearing under § 1226(a) in Jennings v. Rodriguez, ––– U.S. ––––, 138 S. Ct. 830, 200 L.Ed.2d 122 (2018). The Ninth...