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Brito v. Barr

United States District Court, D. Massachusetts

August 6, 2019

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.

          MEMORANDUM AND ORDER

          Hon. Patti B. Saris, Chief United States District Judge.

         INTRODUCTION

         Plaintiffs Gilberto Pereira Brito, Florentin Avila Lucas, and Jacky Celicourt challenge the procedures at immigration court bond hearings for aliens detained pursuant to 8 U.S.C. § 1226 (a). They allege 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 violate the Fifth Amendment Due Process Clause, Immigration and Nationality Act (“INA”), and Administrative Procedure Act (“APA”). Plaintiffs move to certify a class of aliens who are or will be detained under § 1226(a) either in Massachusetts or subject to the jurisdiction of the Boston Immigration Court.

         After hearing, the Court ALLOWS Plaintiffs' motion for class certification pursuant to Federal Rule of Civil Procedure 23 (a) and (b) (2) (Docket No. 17).

         FACTUAL AND PROCEDURAL BACKGROUND

         I. Named Plaintiffs

         A. Gilberto Pereira Brito

         Gilberto Pereira Brito is a citizen of Brazil. He entered the United States without inspection in April 2005 and was apprehended by U.S. Customs and Border Protection (“CBP”). CBP issued a Notice to Appear (“NTA”) that told Pereira Brito to appear in immigration court on June 8 at 1:30am. The court was closed at this hour, but an immigration judge ordered him removed in absentia the next day for failing to appear. He was not removed from the country, however, and has since lived in Massachusetts with his U.S. citizen wife and three children.

         In April 2007, Pereira Brito was charged with possession of marijuana and three traffic offenses. The prosecutor dismissed the drug possession charge, and Pereira Brito admitted sufficient facts as to the charges of unlicensed operation of a motor vehicle and operating under the influence. Two years later, Pereira Brito was charged with driving with a suspended license. He did not appear for his hearing because, he claims, he misunderstood the court's instructions at his arraignment. The prosecutor did not pursue the charge and agreed to dismiss the case in June 2019 when Pereira Brito's attorney inquired about the pending matter. The 2009 charge also triggered a probation violation in the 2007 case, but the notice was mailed to the wrong address. Pereira Brito has no other arrests, charges, or convictions on his record.

         In June 2017, Pereira Brito's wife filed a petition on his behalf for an immigrant visa based on his marriage to a U.S. citizen. The petition was approved in February 2018. However, on March 3, 2019, U.S. Immigration and Customs Enforcement (“ICE”) detained Pereira Brito at his home because of his outstanding removal order. The immigration court reopened his removal proceedings due to his lack of adequate notice of the 2005 removal hearing. Pereira Brito intends to apply for cancellation of removal and continue to pursue lawful permanent residency through his wife's petition.

         On April 4, Pereira Brito received a bond hearing in the Boston Immigration Court. The immigration judge put the burden on Pereira Brito to prove that he is not dangerous or a flight risk and denied his release on bond. The immigration judge determined that Pereira Brito did not meet his burden because he failed to provide his criminal records and, despite his existing family ties and long residence in the United States, did not show that his application for cancellation of removal was meritorious. Pereira Brito appealed this decision to the Board of Immigration Appeals (“BIA”).

         B. Florentin Avila Lucas

         Florentin Avila Lucas came to the United States from Guatemala without authorization in 2002. He has worked at a dairy farm in New Hampshire since the mid-2000s. He has never been charged or convicted of any crime.

         Avila Lucas was detained by CBP agents on March 20, 2019 in West Lebanon, New Hampshire. The agents began to follow Avila Lucas after they ran his license plate and discovered there was no valid social security number associated with the owner of the vehicle. The agents followed him into a thrift store, questioned him, and then detained him in the parking lot. ICE subsequently charged him with being present in the United States without admission and placed him in removal proceedings. Avila Lucas has filed a motion to suppress the evidence obtained by the CBP agents during this encounter. The immigration court held a hearing on the motion to suppress on June 18, 2019 and took the motion under advisement.

         Avila Lucas received a bond hearing in the Boston Immigration Court on May 2. The immigration judge put the burden on Avila Lucas to prove that he is not dangerous or a flight risk and denied his release on bond. Avila Lucas appealed the denial of bond to the BIA.

         C. Jacky Celicourt

         Jacky Celicourt was born in Haiti. He was politically active and worked for an opposition leader in the mid-2010s. He fled Haiti after armed men attacked him in November 2017. He entered the United States on a tourist visa on March 12, 2018. He moved to Nashua, New Hampshire and has worked in construction and roofing. He has a wife and four children who live in Haiti.

         On December 13, 2018, Celicourt was arrested for theft of a a $5.99 pair of headphones. He claims he accidentally put the headphones in his pocket and offered to pay for them when the store clerk confronted him. He was released after his arrest on personal recognizance. He was found guilty and fined $310 on January 16, 2019. He has no other convictions or charges on his record.

         ICE detained Celicourt as he was exiting the courtroom on January 16. A week later, ICE issued an NTA charging him with overstaying his tourist visa. He has applied for asylum, withholding of removal, and relief under the Convention Against Torture based on the persecution or torture he claims he will face in Haiti due to his political activities. An immigration judge denied his applications at a hearing on April 10 and ordered him removed to Haiti. Celicourt appealed this decision, which remains pending at the BIA.

         Celicourt received a bond hearing in the Boston Immigration Court on February 7. The immigration judge placed the burden of proof on him to show he is not dangerous or a flight risk and refused to release him on bond.

         II. Statistical Background on ยง ...


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