Hey, there! Log in / Register

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."

Free tagging: 
PDF icon Complete ruling178.67 KB


Do you like how UHub is doing? Consider a contribution. Thanks!


Due process doesn't apply to deportation, which is a civil process (i.e. "It's not illegal to be illegal.") so this probably won't stand appeal.

Voting closed 23

You forgot the "IANAL" disclaimer.

Voting closed 15

That's not true at all. Due process applies in any case where the government seeks to deprive someone of life, liberty, or property, including civil cases.

Voting closed 29

Exactly, but the key point is that a foreigner being deported is not deprived of life, liberty, or property. They're just going home.

Voting closed 21

This is about people whose deportation status has not yet been decided. They are being deprived of liberty, often for many months, while they are in limbo and may in fact be able to stay here.

Voting closed 36

applies to "any person." How do you get your head to a place where locking someone up and forcing them to go somewhere is not depriving them of liberty? How?

Voting closed 34

How do you get your head to a place where locking someone up and forcing them to go somewhere is not depriving them of liberty? How?

because brown people aren't people.

Voting closed 7

"going home" does mean losing life, liberty, and property. plenty of people who have been deported have ended up dead or disappeared.

you should read up on some of their stories sometime. maybe find some empathy along the way.

Voting closed 18

Either it’s a civil offense, and you get a summons and have to show up court like for a traffic ticket. Or it’s a criminal offense, and you can lock up the accused while awaiting trial... but the full teeth of the first, fourth, fifth, and fourteenth amendment apply. The fact that this hasn’t been enforced by the federal courts is probably an artifact of the feds avoiding liberal circuits at all costs, because the day ICE has to actually follow the laws of the country, is the day they’re out of business permanently

Voting closed 23

How are they working if they are not here legally? Falsifying government documents maybe?
This looks like three of the most sympathetic cases were chosen and presented to a Judge already inclined to rule in their favor, I'm sure it will be appealed.

Voting closed 51

ask the employers. Agriculture and construction, you suppose those maybe rely on cheap labor done by otherwise vulnerable people?

Also, at least one was already applying for citizenship through his wife. It's not like he was hiding.

Voting closed 32

Not that I wanted to make a career of working in the berry and bean fields and orchards, like I did off and on for a couple of summers in my teens. But I did so at a time when underclass born-here workers were being completely replaced by people from Mexico and Central America.

In the Northeast, undocumented workers do factory and agricultural jobs that don't pay enough to attract our highly educated workforce (and often involve exploitative and dangerous conditions).

Funny how some of our most vocal anti-union whiners here also want to suppress construction wages by using non-union labor and relaxing safety regulations. Gee ... how does that happen in practice?

Voting closed 14

Funny how some of our most vocal anti-union whiners here also want to suppress construction wages by using non-union labor and relaxing safety regulations. Gee ... how does that happen in practice?

Construction in MA, at least for the publicly bid projects, follow the rules of providing Wage Rates which are retrieved from the State and included in the contract documents. If Unions and union shops pay their workers at higher rates, that's their choice/contract with their members.

And just because someone is unionized doesn't mean they work any more safely than a worker who is not. You should see what is tried on site. We have many safety write ups for both union and non-union alike.

Voting closed 2

It is not illegal, not even a civil offense, to enter the United States and apply for asylum.

If you think that instead of letting people who fled here to avoid being beaten or killed for opposing a totalitarian government work, we should use tax dollars to pay for their food, housing, etc., please do explain further.

Voting closed 26

Illegal immigrants working and living in the United States is illegal.
The Congress hasn't passed any new laws saying if you want to stay here because your own country sucks you are allowed to.

Voting closed 34

Oh you mean like this? "Based on this experience, he was applying for asylum, withholding of removal, and protection under the Convention Against Torture."

Voting closed 17

I really have seen everything.

Voting closed 8

the Constitution still means something. these days, it's the little things that matter.

Voting closed 18

The essence of anti-immigration sentiment.

Just as the (fill in the bland) of undesirables have been considered subhuman here and nearly every other nation, kingdom, religion in history, today immigrants, generally of brown skin are the subhuman du jour.

One characteristic that can make the U.S. one of the best nations to exist in human history is when we treat all human beings as human beings.

Not for nothing, the Constitution dictates that due process applies to "persons," in the US, not just citizens.

Voting closed 31

These rulings serve only to help Trump when voters see that Judge Saris is a Massachusetts liberal nominated by Clinton and ushered through the Senate by Kennedy and Kerry. She's now making it more difficult for President Trump and ICE to remove criminals who are apparently defendants in new crimes since arriving in this country, although she assures us that their criminal records are "nothing major." Just what we need more of.

My guess is a charge of pickpocket with a 364 day sentence is "nothing major" but two armed bank robberies might be. An example of how the left manipulates the system while risking American lives is on display now in the case of two South Boston physicians (legal immigrants) murdered by an immigrant whose status was so tenuous that the prosecution, that's right, the prosecution, helped negotiate two previous armed bank robberies down to pickpocket, assuring something just under a one year sentence that would have triggered deportation and likely saved the lives of two amazing people. Voters who have played by the rules see this nonsense and go with Trump, even if they preface it with "I don't like the tweets, but..." Keep these rulings come through November 3, 2020 please.

Voting closed 46

So maybe you were just pressed for time.

We're not talking MS-13 members here - I'm going to assume that you realize that murder is a bit different from a guy caught with a $6 pair of headphones - so nothing with change with the sort of people everybody can agree shouldn't be here (just like they did back in the Obama days with the cooperation of law-enforcement agencies in local sanctuary cities to round up MS-13 members).

Because you know what's been happening with people with actual records of violent crime? Surprise: They don't get put back on a plane - they get sent to federal prison to do time there first. But you know that, right?

Voting closed 48

They would be more concerned with native born Americans who are screwed by the system that the wealthy can manipulate because they have the money to turn justice into economic battles based on monetary attrition. Example being the Fish's worshipful demi-God Trump. A man whose deep reputation of countersuing with endless funds has allowed him over decades to put the screws to honest American contractors - who hire native born Americans.

Trump is a liar; anyone who supports Trump in spite knowing the facts of the man co-signs to the lies. Supporting a liar is as bad as being a liar.

But we know that Fish has no use for reality. They make things up; use false statements and fake news and fake implications to create alternative facts.

That's why I could support banning that kind of person from a forum. They can not but help lie. But when sent underground the lies just grow. So it's better when liars are exposed for their deceits and lies.

Voting closed 12

Please -- all of you concerned about the Constitution and rights for illegal immigrants -- Remember that Article I of the Constitution gives Congress the power to write the laws

After the laws reach the President's desk [Article II] and are signed into law or become law through override of a Presidential Veto -- it is the job of the President [and designees in the Executive Branch] to administer the laws -- see "Take Care Clause" [Article II Section 3]

he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

So -- If you don't like ICE [Created by an Act of Congress] and don't like the Immigration Statutes*1 which govern the penalties for entry illegally over-staying visas, working without a 'Green Card", etc.[all created by Congress under Article I] -- Then you need to get the Congress to change them.

The role of Federal Judges [Article III] is to adjudicate disputes -- neither to make new laws nor to monitor and rework the manner in which they are being administered

That's the US Constitution as written and assented to by the requisite number of the several states.

Once again get Congress to propose an amendment or else use Article V to get the States to call for a Constitutional Convention

Note -- also relevant here -- Article IV Section 4

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature can-not be convened) against domestic Violence.

Oh Yes -- Nearly forgot the most important branch -- Article X -- the un-elected and to certain extent nearly un-manageable Federal Bureaucracy
as Calvin Coolidge warned us via a speech at the College of William & Mary in 1926:

No method of procedure has ever been devised by which liberty could be divorced from local self-government. No plan of centralization has ever been adopted which did not result in bureaucracy, tyranny, inflexibility, reaction, and decline. Of all forms of government, those administered by bureaus are about the least satisfactory to an enlightened and progressive people. Being irresponsible they become autocratic, and being autocratic they resist all development. Unless bureaucracy is constantly resisted it breaks down representative government and overwhelms democracy. It is the one element in our institutions that sets up the pretense of having authority over everybody and being responsible to nobody.


excerpts from 8 USC 1225: Inspection by immigration officers; expedited removal of inadmissible arriving aliens; referral for hearing
Text contains those laws in effect on December 1, 2019
Part IV-Inspection, Apprehension, Examination, Exclusion, and Removal
(a) Inspection
(1) Aliens treated as applicants for admission
An alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) shall be deemed for purposes of this chapter an applicant for admission.

(c) Removal of aliens inadmissible on security and related grounds
(1) Removal without further hearing
If an immigration officer or an immigration judge suspects that an arriving alien may be inadmissible under subparagraph (A) (other than clause (ii)), (B), or (C) of section 1182(a)(3) of this title, the officer or judge shall-

(A) order the alien removed, subject to review under paragraph (2);

(B) report the order of removal to the Attorney General; and

(C) not conduct any further inquiry or hearing until ordered by the Attorney General.

Voting closed 8