Immigrants have been Denied Due Process for Years. In New England, that’s about to Change.

One of the bedrock principles of our judicial system is that the government can’t just lock people up without showing why it’s necessary.

For noncitizens caught up in Trump’s deportation machine, though, that principle doesn’t always apply. But now because of our litigation in New England that’s about to change.

Gilberto Pereira Brito was detained in March by ICE – snatched from his wife and three children, all of whom are U.S. citizens – and brought before an immigration judge for a bond hearing. To keep him in detention, the government had to prove nothing, whereas Gilberto had to prove a negative: that he shouldn’t be in jail.

When someone is accused of a crime in the criminal justice system, the government bears the burden of proof when arguing that they should be jailed while they wait for trial. But for the last 20 years in immigration court the process is flipped, with detention being the default position that someone facing proceedings must argue their way out of. Tens of thousands of people like Gilberto have thus been either locked up for months or years, or forced to pay exorbitant bond fees to secure their release.

In June, the ACLU of Massachusetts and the ACLU of New Hampshire filed a class action lawsuit on behalf of Gilberto against the Department of Justice, arguing that forcing immigrants to bear the burden of proof in this way is unconstitutional. On November 27, a federal judge ruled in our favor, ordering the government to provide fair bond hearings for hundreds of people currently detained by ICE in New England. The ruling will also affect thousands more who are likely to be detained in the future by President Trump’s deportation machine. 

This victory represents the first time a judge has granted this type of relief for an entire class of people.

Chief Judge Patti Saris ordered several crucial remedies. First, the government must provide fair bond hearings for all future detainees, at which it must prove that someone is either a flight risk or a danger to society and that no conditions of release could mitigate any risk. Second, the government must also allow everyone who is still in detention to petition for new hearings. Finally, the government must take into account a person’s ability to pay when setting bond above $1,500, and must consider alternatives to detention, such as GPS monitoring.

At its core, this issue is about keeping families together. Nobody should have to spend months locked away from their loved ones, unable to provide for their partner and children or be near them while they face the prospect of a life-changing deportation. We secured the release of Gilberto and two other clients shortly after the case was filed. Now he’s back where he belongs, and thanks to his bravery, hundreds of others will soon have their fair shot at freedom as well.

Judge Saris’s ruling is limited to New England, but it paves the way for similar challenges nationwide. At a time when much of the immigration system is governed in secret by the cruel whims of racist White House officials, it’s more important than ever to hold agencies like DOJ, ICE, CBP and USCIS accountable for their unlawful practices.

The Court’s decision takes effect on December 13, and we’re gearing up for the next phase of the fight. To ensure that people in ICE detention get new, adequate bond hearings, civil rights lawyers are preparing to file hundreds of individual habeaspetitions on behalf of those whose rights have been systematically violated. It’s a monumental task, but when liberty is at stake, the ACLU doesn’t blink.

This is how we dismantle the Trump Administration’s unlawful deportation machine: step by step, piece by piece, to build a better future for immigrants and their families.