United States District Court, D. Massachusetts
GILBERTO PEREIRA BRITO, FLORENTIN, AVILA LUCAS, and JACKY CELICOURT, individually and on behalf of all those similarly situated, Plaintiffs-Petitioners,
WILLIAM BARR, Attorney General, U.S. Department of Justice, et al., Defendants-Respondents.
MEMORANDUM AND ORDER
Patti B. Saris, Chief United States District Judge.
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.
hearing, the Court ALLOWS
Plaintiffs' motion for class certification pursuant to
Federal Rule of Civil Procedure 23 (a) and (b) (2) (Docket
AND PROCEDURAL BACKGROUND
Gilberto Pereira Brito
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.
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.
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
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”).
Florentin Avila Lucas
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.
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
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.
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.
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.
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.
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.
Statistical Background on § ...