APPEAL,Brito,HABEAS
United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:19-cv-11314-PBS

Brito et al v. Barr et al Assigned to: Chief Judge Patti B. Saris related Cases: 1:18-cv-10475-PBS
1:20-cv-10577-PBS 1:19-cv-11620-PBS 1:19-cv-11764-PBS 1:19-cv-12508-DJC 1:19-cv-12577-PBS 1:19-cv-12534-PBS 1:20-cv-10053-PBS 1:20-cv-10055-PBS 1:20-cv-10076-PBS 1:20-cv-10124-PBS 1:20-cv-10591-PBS 1:20-cv-10157-PBS 1:20-cv-10167-PBS 1:20-cv-10624-PBS 1:20-cv-10186-PBS 1:20-cv-10191-PBS 1:20-cv-10201-PBS 1:20-cv-10224-PBS 1:20-cv-10635-PBS 1:20-cv-10643-PBS 1:20-cv-10708-PBS 1:20-cv-10744-PBS 1:20-cv-10269-PBS 1:20-cv-10727-PBS 1:20-cv-10737-PBS 1:20-cv-10308-PBS 1:20-cv-10309-PBS 1:20-cv-11787-PBS 1:20-cv-10363-PBS 1:20-cv-11786-PBS 1:20-cv-10365-PBS 1:20-cv-11102-PBS

Date Filed: 06/13/2019 Jury Demand: None Nature of Suit: 463 Habeas Corpus Alien Detainee Jurisdiction: U.S. Government Defendant

1:20-cv-10395-PBS 1:20-cv-10838-PBS 1:20-cv-10412-PBS 1:20-cv-10804-PBS 1:20-cv-10783-PBS 1:20-cv-10467-PBS 1:20-cv-10473-PBS 1:20-cv-10491-PBS 1:20-cv-10514-PBS 1:20-cv-10761-PBS 1:20-cv-10574-PBS 1:20-cv-10748-PBS 3:20-cv-10129-PBS 1:20-cv-10175-PBS 1:20-cv-10228-PBS 1:20-cv-10242-PBS 1:20-cv-10259-PBS 1:20-cv-10262-PBS 1:20-cv-10302-PBS 1:20-cv-10306-PBS 1:20-cv-10534-PBS 1:20-cv-10716-PBS 1:20-cv-10315-PBS 1:20-cv-10576-PBS 1:20-cv-10525-PBS 3:20-cv-30030-PBS 1:20-cv-10409-PBS 1:20-cv-10410-PBS 1:20-cv-10546-PBS 1:20-cv-10943-PBS 1:20-cv-10944-PBS Case in other court: USCA - First Circuit, 20-01037
USCA - First Circuit, 20-01119 Cause: 28:2241 Petition for Writ of Habeas Corpus (federa

Petitioner
Gilberto Pereira Brito Individually and on behalf of all those similarly situated

represented by Adriana Lafaille American Civil Liberties Union 211 Congress Street Boston, MA 02110 617-482-3170 Email: alafaille@aclum.org

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Nathanson Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC One Financial Center Boston, MA 02111 617-542-6000 Fax: 617-542-2241 Email: anathanson@mintz.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel L. McFadden American Civil Liberties Union 211 Congress Street Boston, MA 02110 617-482-3170 Email: dmcfadden@aclum.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer J. Mather Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC One Financial Center, 42nd Flr. Boston, MA 02111 617-348-4462 Email: jjmather@mintz.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Tan American Civil Liberties Union Federation Immigrants Rights Project 39 Drumm Street San Francisco, CA 94111 (415)-343-0779 Fax: (415) 395-0950 Email: mtan@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ryan T. Dougherty Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC One Financial Center, 42nd Flr. Boston, MA 02111 617-542-6000 Email: rtdougherty@mintz.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
SangYeob Kim ACLU of New Hampshire 18 Low Avenue, #12 Concord, NH 03301 (603) 333-2081 Email: SangYeob@aclu-nh.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan J. Cohen Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC One Financial Center Boston, MA 02111 617-348-4468 Fax: 617-542-2241 Email: scohen@mintz.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan M. Finegan Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC One Financial Center 43rd Floor Boston, MA 02111 617-542-6000 Fax: 617-542-2241 Email: sfinegan@mintz.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gilles R. Bissonnette American Civil Liberties Union of New Hampshire

Petitioner
Florentin Avila Lucas Individually and on behalf of all those similarly situated

18 Low Avenue Concord, NH 03301 603-224-5591 Email: gilles@aclu-nh.org ATTORNEY TO BE NOTICED
Henry R. Klementowicz American Civil Liberties Union of NH 18 Low Avenue Concord, NH 03301 603-333-2201 Email: henry@aclu-nh.org ATTORNEY TO BE NOTICED
Mathilda McGee-Tubb Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC One Financial Center, 42nd Flr. Boston, MA 02111 617-348-4404 Email: msmcgee-tubb@mintz.com ATTORNEY TO BE NOTICED
Matthew Segal American Civil Liberties Union 211 Congress Street Boston, MA 02110 617-482-3170 Fax: 617-451-0009 Email: msegal@aclum.org ATTORNEY TO BE NOTICED
represented by Adriana Lafaille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Nathanson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel L. McFadden (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer J. Mather (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Tan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan T. Dougherty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SangYeob Kim (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan J. Cohen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan M. Finegan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gilles R. Bissonnette (See above for address) ATTORNEY TO BE NOTICED
Henry R. Klementowicz (See above for address) ATTORNEY TO BE NOTICED
Mathilda McGee-Tubb (See above for address) ATTORNEY TO BE NOTICED

Petitioner
Jacky Celicourt Individually and on behalf of all those similarly situated

Matthew Segal (See above for address) ATTORNEY TO BE NOTICED
represented by Adriana Lafaille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Nathanson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel L. McFadden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer J. Mather (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Tan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan T. Dougherty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SangYeob Kim (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan J. Cohen (See above for address) LEAD ATTORNEY

V.
Respondent
William Barr Attorney General, U.S. Department of Justice

ATTORNEY TO BE NOTICED
Susan M. Finegan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gilles R. Bissonnette (See above for address) ATTORNEY TO BE NOTICED
Henry R. Klementowicz (See above for address) ATTORNEY TO BE NOTICED
Mathilda McGee-Tubb (See above for address) ATTORNEY TO BE NOTICED
Matthew Segal (See above for address) ATTORNEY TO BE NOTICED
represented by Carlton F. Sheffield U.S. Department of Justice, Civil Division Office of Immigration Litigation DCS P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 532-4737 Email: carlton.f.sheffield@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Huy Le United States Department of Justice P.O. Box 868, Ben Franklin Station Washignton, DC 20044 (202) 353-4028 Email: Huy.M.Le2@usdoj.gov ATTORNEY TO BE NOTICED

Respondent Marcos Charles Acting Field Office Director, Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement
Respondent Mark Morgan Acting Director, U.S. Immigration and Customs Enforcement

J. Max Weintraub U.S. Department of Justice, Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 202-305-7551 Email: jacob.weintraub@usdoj.gov ATTORNEY TO BE NOTICED
Rayford A. Farquhar United States Attorney's Office John Joseph Moakley Federal Courthouse 1 Courthouse Way Suite 9200 Boston, MA 02210 617-748-3100 Fax: 617-748-3971 Email: rayford.farquhar@usdoj.gov ATTORNEY TO BE NOTICED
represented by Carlton F. Sheffield (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Huy Le (See above for address) ATTORNEY TO BE NOTICED
J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED
Rayford A. Farquhar (See above for address) ATTORNEY TO BE NOTICED
represented by Carlton F. Sheffield (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent Kevin McAleenan Secretary, U.S. Department of Homeland Security
Respondent James McHenry Director, Executive Office of Immigration Review, U.S. Department of Justice

Huy Le (See above for address) ATTORNEY TO BE NOTICED
J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED
Rayford A. Farquhar (See above for address) ATTORNEY TO BE NOTICED
represented by Carlton F. Sheffield (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Huy Le (See above for address) ATTORNEY TO BE NOTICED
J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED
Rayford A. Farquhar (See above for address) ATTORNEY TO BE NOTICED
represented by Carlton F. Sheffield (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Huy Le (See above for address) ATTORNEY TO BE NOTICED
J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED
Rayford A. Farquhar

Respondent Antone Moniz Superintendent of the Plymouth County Correctional Facility
Respondent Yolanda Smith Superintendent of the Suffolk County House of Corrections
Respondent Steven Souza Superintendent of the Bristol County House of Corrections

(See above for address) ATTORNEY TO BE NOTICED
represented by Carlton F. Sheffield (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Huy Le (See above for address) ATTORNEY TO BE NOTICED
J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED
Rayford A. Farquhar (See above for address) ATTORNEY TO BE NOTICED
represented by Carlton F. Sheffield (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Huy Le (See above for address) ATTORNEY TO BE NOTICED
J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED
Rayford A. Farquhar (See above for address) ATTORNEY TO BE NOTICED
represented by Carlton F. Sheffield (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Huy Le

Respondent Christopher Brackett Superintendent of the Strafford County Department of Corrections
Respondent Lori Streeter Superintendent of the Franklin County House of Corrections

(See above for address) ATTORNEY TO BE NOTICED
J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED
Rayford A. Farquhar (See above for address) ATTORNEY TO BE NOTICED
represented by Carlton F. Sheffield (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Huy Le (See above for address) ATTORNEY TO BE NOTICED
J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED
Rayford A. Farquhar (See above for address) ATTORNEY TO BE NOTICED
represented by Carlton F. Sheffield (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Huy Le (See above for address) ATTORNEY TO BE NOTICED
J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED
Rayford A. Farquhar (See above for address) ATTORNEY TO BE NOTICED

Intervenor Pro Se Party John A. Hawkinson

represented by John A. Hawkinson P.O. Box 397103 Cambridge, MA 02139-7103 617-797-0250 Email: jhawk@alum.mit.edu PRO SE

Date Filed 06/13/2019
06/13/2019 06/13/2019 06/13/2019 06/13/2019 06/13/2019
06/13/2019 06/13/2019

# Docket Text

PETITION for Writ of Habeas Corpus (2241) Filing fee: $ 5, receipt

1

number 0101-7730113 Fee status: Filing Fee paid., filed by Gilberto

Pereira Brito, Jacky Celicourt, Florentin Avila Lucas. (Attachments:

# 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D,

# 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H,

# 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L,

# 13 Exhibit M, # 14 Exhibit N, # 15 Civil Cover Sheet, # 16

Category Form)(Finegan, Susan) (Entered: 06/13/2019)
2 NOTICE of Appearance by Daniel L. McFadden on behalf of Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas (McFadden, Daniel) (Entered: 06/13/2019)
3 NOTICE of Appearance by Adriana Lafaille on behalf of Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas (Lafaille, Adriana) (Entered: 06/13/2019)
4 NOTICE of Appearance by Matthew Segal on behalf of Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas (Segal, Matthew) (Entered: 06/13/2019)
***Case List Add to DH for Hab (PSSA, 5) (Entered: 06/13/2019)
5 ELECTRONIC NOTICE of Case Assignment. Chief Judge Patti B. Saris assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Donald L. Cabell. (Finn, Mary) (Entered: 06/13/2019)
6 NOTICE of Appearance by Gilles R. Bissonnette on behalf of Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas (Bissonnette, Gilles) (Entered: 06/13/2019)
7 MOTION for Leave to Appear Pro Hac Vice for admission of Michael Tan Filing fee: $ 100, receipt number 0101-7730852 by Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas.

06/13/2019
06/13/2019 06/14/2019 06/14/2019 06/14/2019 06/14/2019 06/14/2019 06/14/2019

(Attachments: # 1 Declaration of Michael Tan)(McFadden, Daniel) (Entered: 06/13/2019)
8 Chief Judge Patti B. Saris: ELECTRONIC ORDER entered granting 7 Motion for Leave to Appear Pro Hac Vice Added Michael K. Tan. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Lara, Miguel) (Entered: 06/13/2019)
9 NOTICE of Appearance by Henry R. Klementowicz on behalf of Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas (Klementowicz, Henry) (Entered: 06/13/2019)
ELECTRONIC NOTICE of Duplicate Filing Fee and Credit for Refund re 7 MOTION for Leave to Appear Pro Hac Vice for admission of Michael Tan Filing fee: $ 100, receipt number 01017730852, for $100.00 paid on 06/13/2019, receipt number 01017730712. (Adam, Lucien) (Entered: 06/14/2019)
10 MOTION of John A. Hawkinson, Pro Se, to (1) Intervene Seeking Remote Access; And (2) for ECF Filing Privileges. (Responses due by 6/28/2019)(Lara, Miguel) (Entered: 06/14/2019)
11 MOTION of John A. Hawkinson, Pro se, for an Order to Permit Remote Access to Electronic Court Filings Pursuant to FRCP 5.2(c) ("Open the Docket"). (Lara, Miguel) (Entered: 06/14/2019)
12 MEMORANDUM in Support re 11 Motion of John A. Hawkinson, Pro se, for an Order to Permit Remote Access to Electronic Court Filings Pursuant to FRCP 5.2(c) ("Open the Docket"). (Attachments: # 1 Exhibit) (Lara, Miguel) (Entered: 06/14/2019)
13 MOTION for Leave to Appear Pro Hac Vice for admission of SangYeob Kim Filing fee: $ 100, receipt number 0101-7732837 by Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas. (Attachments: # 1 Affidavit Affidavit of SangYeob Kim)(McFadden, Daniel) (Entered: 06/14/2019)
Chief Judge Patti B. Saris: ORDER entered. 14
1.The Clerk shall serve the petition on Respondents and the United States Attorney for the District of Massachusetts.
2.Respondents shall respond to the petition within 21 days of the entry of this Order.

06/14/2019
06/14/2019
06/18/2019 06/18/2019 06/18/2019 06/18/2019 06/18/2019 06/18/2019

3.In order to give the Court time to consider the matter, unless otherwise ordered by the Court, petitioner shall not be moved outside the District of Massachusetts without providing the Court 48 hours advance notice of the move and the reason therefor. Any such 48-hour notice period shall commence at the date and time such notice is filed and expire 48 hours later, except [i]f the period would end on a Saturday, Sunday, or legal holiday, the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(2)(C).(PSSA, 4) (Entered: 06/14/2019)
15 Chief Judge Patti B. Saris: ELECTRONIC ORDER entered granting 13 Motion for Leave to Appear Pro Hac Vice Added SangYeob Kim. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Lara, Miguel) (Entered: 06/14/2019)
16 Chief Judge Patti B. Saris: ORDER entered. STANDING ORDER on 2241 petitions regarding detention and removal of the Petitioner

from the District of Massachusetts. re 1 Petition for Writ of Habeas Corpus (2241),, filed by Jacky Celicourt, Florentin Avila Lucas, Gilberto Pereira Brito. (Lara, Miguel) (Entered: 06/14/2019)

17 MOTION to Certify Class by Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas. (Attachments: # 1 Text of Proposed Order)(Finegan, Susan) (Entered: 06/18/2019)

MEMORANDUM in Support re 17 MOTION to Certify Class filed

18

by Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas.

(Finegan, Susan) (Entered: 06/18/2019)

19 DECLARATION re 17 MOTION to Certify Class (Declaration of Melanie M. Chaput, Esq., with Regard to Florentin Avila Lucas) by Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Finegan, Susan) (Entered: 06/18/2019)

20 DECLARATION re 17 MOTION to Certify Class (Declaration of Sophie Beiers) by Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas. (Finegan, Susan) (Entered: 06/18/2019)

21 MOTION to Seal by Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas.(Finegan, Susan) (Entered: 06/18/2019)

22 NOTICE of Appearance by Carlton F. Sheffield on behalf of William Barr, Christopher Brackett, Marcos Charles, Kevin

06/18/2019 06/19/2019 06/20/2019 06/20/2019 06/21/2019 06/24/2019 06/24/2019 06/25/2019
06/26/2019
06/26/2019

McAleenan, James McHenry, Antone Moniz, Mark Morgan, Yolanda Smith, Steven Souza, Lori Streeter (Sheffield, Carlton) (Entered: 06/18/2019)

23 NOTICE of Appearance by Huy Le on behalf of William Barr, Christopher Brackett, Marcos Charles, Kevin McAleenan, James McHenry, Antone Moniz, Mark Morgan, Yolanda Smith, Steven Souza, Lori Streeter (Le, Huy) (Entered: 06/18/2019)

24 STATUS REPORT by Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas. (Attachments: # 1 Exhibit A)(McFadden, Daniel) (Entered: 06/19/2019)

27 Amended MOTION to Seal (Assented to) by Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas.(Finegan, Susan) (Entered: 06/20/2019)

28 Chief Judge Patti B. Saris: ENDORSED ORDER entered re 21 Motion to Seal. "ALLOWED." (Pacho, Arnold) (Entered: 06/20/2019)

29 ELECTRONIC NOTICE of Hearing.... Status Conference set for 6/26/2019 04:00 PM in Courtroom 19 before Chief Judge Patti B. Saris. (Molloy, Maryellen) (Entered: 06/21/2019)

30 STATUS REPORT Regarding Plaintiff-Petitioner Pereira Brito by Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas. (Finegan, Susan) (Entered: 06/24/2019)

31 NOTICE of Appearance by J. Max Weintraub on behalf of William Barr, Christopher Brackett, Marcos Charles, Kevin McAleenan, James McHenry, Antone Moniz, Mark Morgan, Yolanda Smith, Steven Souza, Lori Streeter (Weintraub, J.) (Entered: 06/24/2019)

First MOTION to Stay All Pending Deadlines and Hold

32

Proceedings in Abeyance Pending First Circuit Decision by

William Barr, Christopher Brackett, Marcos Charles, Kevin

McAleenan, James McHenry, Antone Moniz, Mark Morgan,

Yolanda Smith, Steven Souza, Lori Streeter. (Attachments:

# 1 Exhibit, # 2 Text of Proposed Order)(Le, Huy) (Entered:

06/25/2019)

33 Chief Judge Patti B. Saris: ELECTRONIC ORDER entered re 32

Motion to Stay All Pending Deadlines and Hold Proceedings in Abeyance Pending First Circuit Decision. "Denied." (Lara, Miguel) (Entered: 06/26/2019)
34 Electronic Clerk's Notes for proceedings held before Chief Judge Patti B. Saris: Status Conference held on 6/26/2019....ORDERED:

06/27/2019 06/28/2019 07/01/2019 07/02/2019
07/02/2019 07/02/2019 07/03/2019

Gvt shall file a response to the individual petitions by 7/8/19; Gvt shall file an opposition to Class Certification by 7/19/19; Reply due by 8/2/19, all matters under advisement. (Court Reporter: Lee Marzilli at leemarz@aol.com.) (Molloy, Maryellen) (Entered: 06/27/2019)

35 Mail Returned as Undeliverable. Mail sent to James McHenry, Director, Executive Office for Immigration Review. (Lara, Miguel) (Entered: 06/28/2019)

36 NOTICE of Appearance by Rayford A. Farquhar on behalf of William Barr, Christopher Brackett, Marcos Charles, Kevin McAleenan, James McHenry, Antone Moniz, Mark Morgan, Yolanda Smith, Steven Souza, Lori Streeter (Farquhar, Rayford) (Entered: 06/28/2019)

37 STATUS REPORT regarding detention status of named Petitioners by William Barr, Christopher Brackett, Marcos Charles, Kevin McAleenan, James McHenry, Antone Moniz, Mark Morgan, Yolanda Smith, Steven Souza, Lori Streeter. (Attachments: # 1 Exhibit Lucas Form I-286, # 2 Exhibit Celicourt Form I286)(Sheffield, Carlton) (Entered: 07/01/2019)

38 Transcript of Status Conference held on June 26, 2019, before Chief Judge Patti B. Saris. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Lee Marzilli at leemarz@aol.com Redaction Request due 7/23/2019. Redacted Transcript Deadline set for 8/2/2019. Release of Transcript Restriction set for 9/30/2019. (Scalfani, Deborah) (Entered: 07/02/2019)

39 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/generalinfo.htm (Scalfani, Deborah) (Entered: 07/02/2019)

40 STATUS REPORT (Supplemental) Concerning Detention Status of Named Petitioners by William Barr, Christopher Brackett, Marcos Charles, Kevin McAleenan, James McHenry, Antone Moniz, Mark Morgan, Yolanda Smith, Steven Souza, Lori Streeter. (Sheffield, Carlton) (Entered: 07/02/2019)

AFFIDAVIT in Support re 17 MOTION to Certify

41

Class , 27 Amended MOTION to Seal (Assented to) of Melanie M.

Chaput, Esq. With Regard to Jacky Celicourt (Redacted) filed by

07/03/2019 07/08/2019

Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas. (Finegan, Susan) (Entered: 07/03/2019)

AFFIDAVIT in Support re 17 MOTION to Certify

42

Class , 27 Amended MOTION to Seal (Assented to) of Sidra Vitale,

Esq. With Regard to Gilberto Pereira Brito (Redacted) filed by

Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas.

(Finegan, Susan) (Entered: 07/03/2019)

43 Chief Judge Patti B. Saris:

GENERAL ORDER 19-02

June 1, 2019

STANDING PROCEDURAL ORDER RE:PUBLIC ACCESS TO IMMIGRATION CASES RESTRICTEDBY FEDERAL RULES OF CIVIL PROCEDURE 5.2(C)

1. The court orders that in an action or proceeding relating to an order of removal,or to immigration benefits or detention, access to an electronic file is authorized to the extent provided by Fed. R. Civ. P. 5.2(c) for thirty days after the case filing. At that time, restrictions on remote access to the full electronic record shall be removed except for redactions required pursuant Rule 5.2(a) to protect confidential information (i.e., social security numbers).

2. Any party who objects to the removal of the restrictions provided by Rule 5.2(c)shall file objections with the court within 14 days of the case filing. Any response to the objection shall be filed within seven days. Restrictions will not be lifted until the court rules on any objections.

3. At all times, paper copies of documents restricted by Rule 5.2(c) will be providedwhen requested at each courthouse subject to the condition that they shall not be placed on the internet within the first thirty days after the case filing if there are no objections or until the presiding judge lifts the restriction.

4. The presiding judge may modify this standing order at any time in the interest ofjustice. 5. This order shall be served by the Clerks Office on all parties when the case is filed and on each person that requests a paper record.

(Lara, Miguel) (Entered: 07/08/2019)

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07/17/2019 07/17/2019 07/17/2019 07/17/2019 07/17/2019 07/19/2019 07/19/2019 07/19/2019

44 ELECTRONIC NOTICE Setting Hearing on Motion 17 MOTION to Certify Class : Motion Hearing set for 8/5/2019 09:30 AM in Courtroom 19 before Chief Judge Patti B. Saris. (Molloy, Maryellen) (Entered: 07/15/2019)
45 Chief Judge Patti B. Saris: ELECTRONIC ORDER entered granting 10 Motion to Intervene; granting 10 Motion for leave to electronically file Pro Se.

The court grants permission on the condition that the plaintiff satisfies all applicable training and other requirements for pro se litigants as stated in the CM/ECF Administrative Procedures, Page 5. The plaintiff is directed to complete the registration form accessible at https://public.mad.uscourts.gov/ecfreg.html

(Lara, Miguel) (Entered: 07/17/2019)

46 Chief Judge Patti B. Saris: ELECTRONIC ORDER entered granting 11 ro se, for an Order to Permit Remote Access to Electronic Court Filings Pursuant to FRCP 5.2(c) ("Open the Docket"). (Lara, Miguel) (Entered: 07/17/2019)

47 NOTICE of Appearance by Ryan T. Dougherty on behalf of Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas (Dougherty, Ryan) (Entered: 07/17/2019)

48 NOTICE of Appearance by Jennifer J. Mather on behalf of Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas (Mather, Jennifer) (Entered: 07/17/2019)

49 NOTICE of Appearance by Andrew Nathanson on behalf of Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas (Nathanson, Andrew) (Entered: 07/17/2019)

50 NOTICE of Appearance by Susan J. Cohen on behalf of Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas (Cohen, Susan) (Entered: 07/17/2019)

RESPONSE to Motion re 17 MOTION to Certify Class (in

51

opposition) filed by William Barr, Christopher Brackett, Marcos

Charles, Kevin McAleenan, James McHenry, Antone Moniz, Mark

Morgan, Yolanda Smith, Steven Souza, Lori Streeter. (Sheffield,

Carlton) (Entered: 07/19/2019)

52 MOTION for Entry of Final Judgment by Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas.(Finegan, Susan) (Entered: 07/19/2019)

MEMORANDUM in Support re 52 MOTION for Entry of Final

53

Judgment filed by Gilberto Pereira Brito, Jacky Celicourt, Florentin

07/25/2019 08/02/2019 08/02/2019 08/05/2019
08/06/2019

Avila Lucas. (Attachments: # 1 Text of Proposed Order)(Finegan, Susan) (Entered: 07/19/2019)

54 ELECTRONIC NOTICE Setting Hearing on Motion 52 MOTION for Entry of Final Judgment..... Motion Hearing set for 8/5/2019 09:30 AM in Courtroom 19 before Chief Judge Patti B. Saris. (Molloy, Maryellen) (Entered: 07/25/2019)

First Opposition re 52 MOTION for Entry of Final Judgment filed

55

by William Barr, Christopher Brackett, Marcos Charles, Kevin

McAleenan, James McHenry, Antone Moniz, Mark Morgan,

Yolanda Smith, Steven Souza, Lori Streeter. (Le, Huy) (Entered:

08/02/2019)

REPLY to Response to 17 MOTION to Certify Class filed by

56

Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas.

(Finegan, Susan) (Entered: 08/02/2019)

57 Electronic Clerk's Notes for proceedings held before Chief Judge Patti B. Saris: Motion Hearing held on 8/5/2019 re 17 MOTION to Certify Class filed by Jacky Celicourt, Florentin Avila Lucas, Gilberto Pereira Brito, 52 MOTION for Entry of Final Judgment filed by Jacky Celicourt, Florentin Avila Lucas, Gilberto Pereira Brito. Court will consider an expedited briefing schedule. Plaintiff will file a letter by 9/6/19 re: proposed schedule going forward. ORDERED: Gvt shall file an answer on or before 9/5/19, all discovery is STAYED, Plaintiff does not anticipate taking any discovery at this point-parties will confer, all matters taken under advisement. (Court Reporter: Linda Walsh ) (Molloy, Maryellen) (Entered: 08/05/2019)

Chief Judge Patti B. Saris: MEMORANDUM AND ORDER

58

entered.

ORDER

For the foregoing reasons, Plaintiffs' motion for class certification (Docket No. 17 ) is ALLOWED. The Court certifies the following two classes for 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

08/06/2019 08/06/2019 08/12/2019 08/16/2019
08/16/2019
08/16/2019 08/29/2019

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.

The Court appoints Mintz Levin, the American Civil Liberties Union Foundation of Massachusetts, the American Civil Liberties Union Foundation of New Hampshire, and the ACLU Foundation Immigrants' Rights Project as class counsel under Federal Rule of Civil Procedure 23(g).

SO ORDERED.

(Lara, Miguel) (Entered: 08/06/2019)

59 STATUS REPORT and Proposed Schedule by Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas. (McFadden, Daniel) (Entered: 08/06/2019)

62 Chief Judge Patti B. Saris: ORDER entered denying 52 Motion for Entry of Final Judgment. (Lara, Miguel) (Entered: 08/07/2019)

STATUS REPORT and Revised Proposed Schedule by Gilberto

63

Pereira Brito, Jacky Celicourt, Florentin Avila Lucas. (McFadden,

Daniel) (Entered: 08/12/2019)

Transcript of Motion hearing held on August 5, 2019, before Chief

64

Judge Patti B. Saris. The Transcript may be purchased through the

Court Reporter, viewed at the public terminal, or viewed through

PACER after it is released. Court Reporter Name and Contact

Information: Linda Walsh at lwalshsteno@gmail.com. Redaction

Request due 9/6/2019. Redacted Transcript Deadline set for

9/16/2019. Release of Transcript Restriction set for 11/14/2019.

(Belpedio, Lisa) (Entered: 08/16/2019)

65 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/generalinfo.htm (Belpedio, Lisa) (Entered: 08/16/2019)

66 Respondents' ANSWER to Complaint by William Barr, Christopher Brackett, Marcos Charles, Kevin McAleenan, James McHenry, Antone Moniz, Mark Morgan, Yolanda Smith, Steven Souza, Lori Streeter.(Le, Huy) (Entered: 08/16/2019)

MOTION for Summary Judgment or, in the Alternative,

67

Preliminary Injunction by Gilberto Pereira Brito, Jacky Celicourt,

Florentin Avila Lucas.(Finegan, Susan) (Entered: 08/29/2019)

08/29/2019
08/29/2019 08/29/2019 08/29/2019 08/29/2019 08/29/2019 09/09/2019
09/09/2019

68

MEMORANDUM in Support re 67 MOTION for Summary

Judgment or, in the Alternative, Preliminary Injunction filed by

Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas.

(Attachments: # 1 Text of Proposed Order)(Finegan, Susan) (Entered: 08/29/2019)

69

Statement of Material Facts L.R. 56.1 re 67 MOTION for

Summary Judgment or, in the Alternative, Preliminary

Injunction filed by Gilberto Pereira Brito, Jacky Celicourt, Florentin

Avila Lucas. (Finegan, Susan) (Entered: 08/29/2019)

70

AFFIDAVIT re 67 MOTION for Summary Judgment or, in the

Alternative, Preliminary Injunction (Supplemental Affidavit of

Attorney Elena Noureddine) by Gilberto Pereira Brito, Jacky

Celicourt, Florentin Avila Lucas. (Finegan, Susan) (Entered:

08/29/2019)

71

DECLARATION re 67 MOTION for Summary Judgment or,

in the Alternative, Preliminary Injunction (Supplemental

Declaration of Sophie Beiers) by Gilberto Pereira Brito, Jacky

Celicourt, Florentin Avila Lucas. (Finegan, Susan) (Entered:

08/29/2019)

MOTION to Modify Class Definition by Gilberto Pereira Brito,

72

Jacky Celicourt, Florentin Avila Lucas.(Finegan, Susan) (Entered:

08/29/2019)

73

MEMORANDUM in Support re 72 MOTION to Modify Class

Definition filed by Gilberto Pereira Brito, Jacky Celicourt, Florentin

Avila Lucas. (Finegan, Susan) (Entered: 08/29/2019)

Assented to MOTION for Extension of Time to September 23, 2019

74

to File Response/Reply to Petitioners Motion for Summary

Judgment and Motion to Modify the Class Definition by William

Barr, Christopher Brackett, Marcos Charles, Kevin McAleenan,

James McHenry, Antone Moniz, Mark Morgan, Yolanda Smith,

Steven Souza, Lori Streeter. (Attachments: # 1 Text of Proposed Order)(Le, Huy) (Entered: 09/09/2019)
75 NOTICE of Appearance by Mathilda McGee-Tubb on behalf of Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas (McGee-Tubb, Mathilda) (Entered: 09/09/2019)

09/09/2019
09/11/2019 09/11/2019 09/20/2019 09/23/2019
10/04/2019

76 Chief Judge Patti B. Saris: ORDER entered granting 74

Motion

for Extension of Time to File Response/Reply re 67 MOTION for Summary Judgment or, in the Alternative, Preliminary

Injunction, 72 MOTION to Modify Class Definition.

Responses due by 9/23/2019.

(Lara, Miguel) (Entered: 09/10/2019)

Assented to MOTION for Leave to File Excess Pages by William

77

Barr, Christopher Brackett, Marcos Charles, Kevin McAleenan,

James McHenry, Antone Moniz, Mark Morgan, Yolanda Smith,

Steven Souza, Lori Streeter. (Attachments: # 1 Text of Proposed

Order)(Le, Huy) (Entered: 09/11/2019)

78 Chief Judge Patti B. Saris: ELECTRONIC ORDER entered

granting 77 Motion for Leave to File Excess Pages ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Lara, Miguel) (Entered: 09/11/2019)

79

Notice of Supplemental Authorities re 67 MOTION for

Summary Judgment or, in the Alternative, Preliminary

Injunction (Attachments: # 1 (Entered: 09/20/2019)

Exhibit A)(Finegan, Susan)

80

First Opposition re 72 MOTION to Modify Class

Definition, 67 MOTION for Summary Judgment or, in the Alternative, Preliminary Injunction filed by William Barr, Christopher Brackett, Marcos Charles, Kevin McAleenan, James McHenry, Antone Moniz, Mark Morgan, Yolanda Smith, Steven

Souza, Lori Streeter. (Attachments: # 1 (Entered: 09/23/2019)

Appendix A)(Le, Huy)

81

REPLY to Response to 67 MOTION for Summary

Judgment or, in the Alternative, Preliminary Injunction filed by

10/04/2019 11/05/2019
11/08/2019 11/08/2019 11/12/2019

Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas. (Finegan, Susan) (Entered: 10/04/2019)
82 ELECTRONIC NOTICE Setting Hearing on Motion 67

MOTION for Summary Judgment or, in the Alternative,

Preliminary Injunction, 72 MOTION to Modify Class Definition : Motion Hearing set for 11/5/2019 09:30 AM in Courtroom 19 before Chief Judge Patti B. Saris. (Molloy, Maryellen) (Entered: 10/04/2019)
83 Electronic Clerk's Notes for proceedings held before Chief Judge Patti B. Saris: Motion Hearing held on 11/5/2019 re 72

MOTION to Modify Class Definition filed by Jacky Celicourt,

Florentin Avila Lucas, Gilberto Pereira Brito, 67 MOTION for Summary Judgment or, in the Alternative, Preliminary Injunction filed by Jacky Celicourt, Florentin Avila Lucas, Gilberto Pereira Brito....All matters taken under advisement, supplemental materials to be filed on or before 11/12/19. (Court Reporter: Debra Joyce at joycedebra@gmail.com.) (Molloy, Maryellen) (Entered: 11/05/2019)

Transcript of Motion Hearing held on November 5, 2019, before

84

Chief Judge Patti B. Saris. The Transcript may be purchased

through the Court Reporter, viewed at the public terminal, or viewed

through PACER after it is released. Court Reporter Name and

Contact Information: Debra Joyce at joycedebra@gmail.com

Redaction Request due 11/29/2019. Redacted Transcript Deadline

set for 12/9/2019. Release of Transcript Restriction set for 2/6/2020.

(Scalfani, Deborah) (Entered: 11/08/2019)

85 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/generalinfo.htm (Scalfani, Deborah) (Entered: 11/08/2019)

RESPONSE TO COURT ORDER by Gilberto Pereira Brito, Jacky

86

Celicourt, Florentin Avila Lucas re 83 Motion Hearing,, -

Petitioners' Post-Hearing Memorandum -. (Attachments: # 1

Appendix A, # 2 11/12/2019)

Appendix B)(Finegan, Susan) (Entered:

11/12/2019 11/27/2019

87 RESPONSE TO COURT ORDER by William Barr, Christopher Brackett, Marcos Charles, Kevin McAleenan, James McHenry, Antone Moniz, Mark Morgan, Yolanda Smith, Steven Souza, Lori Streeter re 83 Motion Hearing,, . (Le, Huy) (Entered: 11/12/2019)

Chief Judge Patti B. Saris: MEMORANDUM AND ORDER

88

entered:

ORDER

Plaintiffs' motion for summary judgment (Dkt. No. 67 ) and
motion to modify the class definitions (Dkt. No. 72 ) are ALLOWED. Plaintiffs' request for declaratory and injunctive relief is ALLOWED IN PART and DENIED IN PART.
DECLARATORY JUDGMENT (BOTH CLASSES)
The Court declares that aliens detained pursuant to 8 U.S.C. § 1226(a) are entitled to receive a bond hearing at which the Government must prove the alien is either dangerous by clear and convincing evidence or a risk of flight by a preponderance of the evidence and that no condition or combination of conditions will reasonably assure the alien's future appearance and the safety of the community. At the bond hearing, the immigration judge must evaluate the alien's ability to pay in setting bond above $1,500 and must consider alternative conditions of release, such as GPS monitoring, that reasonably assure the safety of the community and the alien's future appearances.
PERMANENT INJUNCTION (BOTH CLASSES)
The Court orders that immigration courts shall follow the requirements set forth in the above declaration, effective December 13, 2019.
The Court orders that the Government shall provide this declaratory judgment and permanent injunction to all members of both classes by December 13, 2019 and to all new members of the Pre-Hearing Class once ICE makes the initial determination to detain them pursuant to 8 U.S.C. § 1226(a). The Government shall file a certification that this has occurred by December 16, 2019.

12/13/2019 89
12/16/2019 90
12/17/2019 91
12/17/2019 92
12/17/2019 93

PERMANENT INJUNCTION (POST-HEARING CLASS ONLY)

The Court orders that the Government shall provide class counsel with the following information for each member of the Post-Hearing Class by January 3, 2020: (1) the name; (2) the current location; (3) the date the current period of detention began, (4) the name of the class member's counsel in immigration court, if any, and; (5) a statement of whether a new bond hearing has taken place after the date of this order and, if so, the outcome. The Government also shall file with the Court a copy of this information.

SO ORDERED.

(Lara, Miguel) (Entered: 11/27/2019)
MOTION for Extension of Time to January 31, 2019 to Comply with Court Order by William Barr, Christopher Brackett, Marcos Charles, Kevin McAleenan, James McHenry, Antone Moniz, Mark Morgan, Yolanda Smith, Steven Souza, Lori Streeter.(Le, Huy) (Entered: 12/13/2019)
NOTICE by William Barr, Christopher Brackett, Marcos Charles, James McHenry, Antone Moniz, Mark Morgan, Yolanda Smith, Steven Souza, Lori Streeter Compliance with

Judgment (Attachments: # 1 Exhibit Ex. A, # 2 Ex. B)(Le, Huy) (Entered: 12/16/2019)

Exhibit

MEMORANDUM in Opposition re 89 MOTION for Extension of Time to January 31, 2019 to Comply with Court Order filed by Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas. (Finegan, Susan) (Entered: 12/17/2019)

DECLARATION re 91 Memorandum in Opposition to Motion (Declaration of Daniel L. McFadden) by Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas. (Attachments: # 1

Exhibit A, # 2 Exhibit B, # 3 Susan) (Entered: 12/17/2019)

Exhibit C)(Finegan,

DECLARATION re 91 Memorandum in Opposition to Motion (Declaration of Eliana Nader) by Gilberto Pereira Brito,

Jacky Celicourt, Florentin Avila Lucas. (Attachments: # 1

12/17/2019 12/17/2019 12/18/2019 12/26/2019
12/27/2019 01/03/2020 01/03/2020

Exhibit A)(Finegan, Susan) (Entered: 12/17/2019)

94

DECLARATION re 91 Memorandum in Opposition to

Motion (Declaration of Susan B. Church) by Gilberto Pereira Brito,

Jacky Celicourt, Florentin Avila Lucas. (Finegan, Susan) (Entered:

12/17/2019)

95

DECLARATION re 91 Memorandum in Opposition to

Motion (Declaration of Elena Noureddine) by Gilberto Pereira

Brito, Jacky Celicourt, Florentin Avila Lucas. (Finegan, Susan)

(Entered: 12/17/2019)

96

Chief Judge Patti B. Saris: ORDER entered re 89 Motion for

Extension of Time to Comply with Court Order. "Denied as moot."

(Lara, Miguel) (Entered: 12/18/2019)

97

NOTICE OF APPEAL as to 88 Memorandum & ORDER,,,,,,,,,

by Gilberto Pereira Brito, Jacky Celicourt, Florentin Avila Lucas

Filing fee: $ 505, receipt number 0101-8029915 Fee Status: Not

Exempt. NOTICE TO COUNSEL: A Transcript Report/Order

Form, which can be downloaded from the First Circuit Court of

Appeals web site at http://www.ca1.uscourts.gov MUST be

completed and submitted to the Court of Appeals. Counsel shall

register for a First Circuit CM/ECF Appellate Filer Account

at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review

the First Circuit requirements for electronic filing by visiting

the CM/ECF Information section

at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk

to deliver official record to Court of Appeals by 1/15/2020.

(Finegan, Susan) (Entered: 12/26/2019)

Certified and Transmitted Abbreviated Electronic Record on Appeal 98
to US Court of Appeals re 97 Notice of Appeal. (Pacho, Arnold) (Entered: 12/27/2019)

99 USCA Case Number 20-1037 for 97 Notice of Appeal,,, filed by Jacky Celicourt, Florentin Avila Lucas, Gilberto Pereira Brito. (Danieli, Chris) (Entered: 01/03/2020)

NOTICE by William Barr, Christopher Brackett, Marcos Charles,

100

Kevin McAleenan, James McHenry, Antone Moniz, Mark Morgan,

Yolanda Smith, Steven Souza, Lori Streeter Compliance with

01/24/2020
01/27/2020 01/27/2020 01/31/2020

Judgment (Attachments: # 1 01/03/2020)

Exhibit Ex. A)(Le, Huy) (Entered:

101 NOTICE OF APPEAL 88 Memorandum & ORDER by William Barr, Christopher Brackett, Marcos Charles, James McHenry, Antone Moniz, Mark Morgan, Yolanda Smith, Steven Souza, Lori Streeter Fee Status: US Government. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 2/13/2020. (Le, Huy) (Modified on 1/27/2020 to Correct Docket Text and CM/ECF Document Link) (Paine, Matthew). (Entered: 01/24/2020)

102 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 101 Notice of Appeal. (Paine, Matthew) (Entered: 01/27/2020)

103 USCA Case Number 20-1119 for 101 Notice of Appeal filed by Lori Streeter, Christopher Brackett, William Barr, Mark Morgan, James McHenry, Steven Souza, Marcos Charles, Yolanda Smith, Antone Moniz. (Paine, Matthew) (Entered: 01/27/2020)

NOTICE by William Barr, Christopher Brackett, Marcos Charles,

104

James McHenry, Antone Moniz, Mark Morgan, Yolanda Smith,

Steven Souza, Lori Streeter re 100 Notice (Other) Supplemental Compliance Certification (Attachments: # 1

Exhibit)(Le, Huy) (Entered: 01/31/2020)

PACER Service Center Transaction Receipt

PACER Login:
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Eric Gripp
1:19-cv11314-PBS
2.40

 
 Case 1:19-cv-11314-PBS Document 1 Filed 06/13/19 Page 1 of 26

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

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, MARCOS CHARLES, Acting Field Office Director, Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement, MARK MORGAN, Acting Director, U.S. Immigration and Customs Enforcement, KEVIN MCALEENAN, Secretary, U.S. Department of Homeland Security, JAMES MCHENRY, Director, Executive Office of Immigration Review, U.S. Department of Justice, ANTONE MONIZ, Superintendent of the Plymouth County Correctional Facility, YOLANDA SMITH, Superintendent of the Suffolk County House of Correction, STEVEN SOUZA, Superintendent of the Bristol County House of Correction, CHRISTOPHER BRACKETT, Superintendent of the Strafford County Department of Corrections, and LORI STREETER, Superintendent of the Franklin County House of Corrections, in their official capacities,

Case No. _____________

Defendants-Respondents.

1

Case 1:19-cv-11314-PBS Document 1 Filed 06/13/19 Page 2 of 26
HABEAS CORPUS PETITION AND CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE
RELIEF INTRODUCTION 1. Liberty is supposed to be the norm throughout the American legal system, and detention a carefully limited exception. In immigration proceedings, however, this principle is reversed. Although these are civil proceedings, U.S. Immigration and Customs Enforcement (ICE) is jailing numerous alleged noncitizens—including Petitioners Gilberto Pereira Brito, Florentin Avila Lucas, and Jacky Celicourt—simply for failing to affirmatively prove, to the satisfaction of an immigration judge, that they should be free. Courts have repeatedly held that such detention is unlawful, but the government’s practice has not abated. Unless this Court intervenes, ICE will continue to imprison the Petitioners and others like them without ever being required to prove that this imprisonment is necessary to protect public safety or ensure their appearance in immigration court. 2. Petitioners bring this action to compel the government to provide constitutionally adequate detention hearings (colloquially known as “bond hearings” in immigration court) for them and a class of similarly situated people. The proposed class would include all people who are or will be detained under 8 U.S.C. § 1226(a), either within Massachusetts or otherwise within the jurisdiction of the Boston Immigration Court. On behalf of themselves and the class, Petitioners seek declaratory and injunctive relief that prohibits further detention without an adequate bond hearing. That hearing is one in which the government bears the burden to prove
2

Case 1:19-cv-11314-PBS Document 1 Filed 06/13/19 Page 3 of 26
by clear and convincing evidence that detention is necessary because the detainee is a danger to others or a flight risk, and that there is no condition or combination of conditions that will reasonably assure the detainee’s future appearance and the safety of the community, and which includes consideration of the detainee’s ability to pay in selecting the amount of any bond and suitability for release on alternative conditions of supervision.
PARTIES 3. Petitioner1 Gilberto Pereira Brito is a resident of Brockton, Massachusetts. He has been held in immigration detention since March 3, 2019. He is currently detained by ICE at Plymouth County Correctional Facility in Plymouth, Massachusetts. 4. Petitioner Florentin Avila Lucas is a resident of Claremont, New Hampshire. He has been held in immigration detention since March 20, 2019. He was initially detained at the Strafford County Department of Corrections in Dover, New Hampshire. He was then transferred by ICE to the Plymouth County Correctional Facility in Plymouth, Massachusetts, where he is currently detained. 5. Petitioner Jacky Celicourt is a resident of Nashua, New Hampshire. He has been held in immigration detention since January 16, 2019. He was initially detained at the Strafford County Department of Corrections in Dover, New Hampshire. He was then transferred by ICE to the Plymouth County Correctional Facility in Plymouth, Massachusetts, where he is currently detained.
1 Plaintiffs-Petitioners will be referred to throughout as “Petitioners,” and Defendants-Respondents will be referred to throughout as “Respondents.”
3

Case 1:19-cv-11314-PBS Document 1 Filed 06/13/19 Page 4 of 26
6. Respondent Antone Moniz is the Superintendent of the Plymouth County Correctional Facility, and is the immediate custodian of Mr. Avila Lucas, Mr. Pereira Brito, Mr. Celicourt, and numerous members of the putative class. He is sued in his official capacity.
7. Respondent Yolanda Smith is the Superintendent of the Suffolk County House of Correction, and is the immediate custodian of numerous members of the putative class. She is sued in her official capacity.
8. Respondent Steven Souza is the Superintendent of the Bristol County House of Correction, and is the immediate custodian of numerous members of the putative class. He is sued in his official capacity.
9. Respondent Lori Streeter is Superintendent of the Franklin County Jail and House of Correction, and is the immediate custodian of numerous members of the putative class. She is sued in her official capacity.
10. Respondent Christopher Brackett is the Superintendent of the Strafford County Department of Corrections in Dover, New Hampshire, and is the immediate custodian of numerous members of the putative class. He is sued in his official capacity.
11. Respondent Marcos Charles is the Acting Field Office Director for the Boston Field Office of ICE’s Enforcement and Removal Operations (ERO), located in Burlington, Massachusetts. He is sued in his official capacity. The Boston Field Office is responsible for and has authority over ICE’s apprehension, detention, and removal operations in Massachusetts, New Hampshire, Connecticut, Rhode Island,
4

Case 1:19-cv-11314-PBS Document 1 Filed 06/13/19 Page 5 of 26
Maine, and Vermont. Mr. Charles is the immediate legal custodian of Petitioners and all members of the putative class.
12. Respondent Mark Morgan is the Acting Director of ICE. In this capacity, he directs all ICE operations. As a result, Respondent Morgan has responsibility for the administration of the immigration laws, and is a legal custodian of the Petitioners. He is sued in his official capacity.
13. Respondent Kevin McAleenan is the Acting Secretary of the U.S. Department of Homeland Security (DHS). In this capacity, he directs each of the component agencies within DHS, including ICE. As a result, Respondent McAleenan has responsibility for the administration of the immigration laws, and is a legal custodian of the Petitioners. He is sued in his official capacity.
14. Respondent James McHenry is the Director of the Executive Office for Immigration Review (EOIR), a component of the U.S. Department of Justice. In this capacity, he is responsible for the policies and operations of the immigration courts. He is sued in his official capacity.
15. Respondent William Barr is the Attorney General of the United States. In this capacity, he is responsible for the policies and operations of the U.S. Department of Justice, including EOIR. He is sued in his official capacity.
JURISDICTION AND VENUE 16. This Court has jurisdiction, including pursuant to 28 U.S.C. §§ 2241 et seq., Art. I § 9, cl. 2 of the U.S. Constitution (the Suspension Clause), 28 U.S.C. § 1331 (federal question jurisdiction), and 28 U.S.C. § 1361 (mandamus statute).
5

Case 1:19-cv-11314-PBS Document 1 Filed 06/13/19 Page 6 of 26
17. Venue is proper under 28 U.S.C. §§ 1391(b)(2) and (e), and 28 U.S.C. §§ 2241 et seq. Petitioners and most members of the putative class are detained within this District, and a substantial part of the events giving rise to the claims and relevant facts occurred within this District, including the activities and decisions of the Boston Immigration Court and the Boston Field Office of ICE-ERO. Respondent Charles is located within this District and possesses day-to-day authority over the custody of Petitioners and all class members.
DETENTION UNDER THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. § 1226(a)
18. Although individuals detained under 8 U.S.C. § 1226(a) are eligible for release on bond, the government places the burden of proof in the bond hearing on the individual, and fails to consider whether conditions of release can mitigate risk or whether a bond amount is within an individual’s ability to pay. These inadequate bond hearings violate Petitioners’ constitutional and statutory rights.
19. Immigration removal proceedings begin when ICE accuses a person of being a noncitizen subject to being removed (commonly, “deported”) from the United States. The person may contest that they are subject to deportation, and may also apply for various forms of relief from deportation. Many people placed in removal proceedings will not ultimately be deported. However, it takes months or years for the courts to decide if a person should be deported or if they are legally entitled to remain in the United States.
20. The government’s authority to jail people during their removal proceedings is generally governed by 8 U.S.C. § 1226. Those people are eligible to be
6

Case 1:19-cv-11314-PBS Document 1 Filed 06/13/19 Page 7 of 26
released on bond under 8 U.S.C. § 1226(a) unless they are subject to a mandatory detention provision, 8 U.S.C. § 1226(c), which prohibits release on bond for noncitizens who are removable on the basis of certain criminal or national security grounds.
21. ICE makes an initial custody determination to decide if an individual should be detained or released on bond or other conditions of supervision. 8 C.F.R. § 1236.1(c)(8).
22. The individual may then request a custody redetermination of ICE’s decision from an immigration judge, through what is colloquially referred to as a “bond hearing.”2 See 8 C.F.R. § 1236.1(d)(1).
23. Neither the statute nor the regulations require the individual to bear any burden of proof in his or her bond hearing. Indeed, from 1976 to 1999, the Board of Immigration Appeals (BIA)—which makes controlling precedent for immigration judges—held that “[a]n alien generally is not and should not be detained or required to post bond except on a finding that he is a threat to the national security, or that he is a poor bail risk,” and required that the government provide reasons to justify detention. See Matter of Patel, 15 I&N Dec. 666, 666-67 (BIA 1976) (citations omitted).
24. In 1999, the BIA arbitrarily reversed course and made detainees bear the burden of proof in bond hearings. See Matter of Adeniji, 22 I&N Dec. 1102 (BIA
2 Consistent with the usual terminology, a detention hearing in immigration court will be referred to throughout as a “bond hearing.” To be clear, however, the “bond hearing” requested through this action would include consideration of conditions of release other than a monetary bond.
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1999). In doing so, the BIA failed to provide a reasoned explanation for reversing its prior precedent, and incorrectly relied upon an inapplicable regulation contained in 8 C.F.R. § 236.1(c)(8). See id. Under Adeniji and its progeny, the BIA currently requires that people seeking release prove to the satisfaction of an immigration judge that they do not pose a danger to property or persons, and are likely to appear for any future proceeding. See id. at 1113; see also Ex. A (Noureddine Aff’t) ¶¶3-5; Matter of Guerra, 24 I&N Dec. 37, 39 (BIA 2006).
25. Consequently, ICE routinely holds allegedly removable people in jail without ever being required to show that such detention is necessary. These people may receive bond hearings before immigration judges. However, at those hearings, the individuals bear the burden to prove that they should not be jailed because they are not a danger to the community and not a flight risk. People are being deprived of freedom—jailed, and separated from their families and livelihoods—because they cannot prove a negative.
26. Furthermore, individuals who satisfy this unfair evidentiary burden may face an additional hurdle: their release is routinely conditioned on a bond set without consideration of their ability to pay. See Ex. A (Noureddine Aff’t) ¶6; see also Guerra, 24 I. & N. Dec. at 40 (enumerating factors that the immigration judge may consider in setting bond, without mention of ability to pay). Bail set beyond a person’s ability to pay is simply a de facto detention order. Nor do immigration judges generally consider individuals for alternative conditions of release that do not require the posting of bond.
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27. Courts have repeatedly held that the government is violating detainees’ constitutional rights by providing these flawed bond hearings. See Pensamiento v. McDonald, 315 F. Supp. 3d 684, 692 (D. Mass. 2018), appeal dismissed by gov’t, No. 18-1691 (1st Cir. Dec. 26, 2018); Padilla v. ICE, No.18-928, 2019 WL 1506754, at *9 (W.D. Wash. Apr. 5, 2019); Doe v. Tompkins, No. 18-12266, 2019 U.S. Dist. LEXIS 22616, at *3 (D. Mass. Feb. 12, 2019), appeal noticed, No. 19-1368 (1st Cir.); Diaz Ortiz v. Tompkins, No. 18-12600, 2019 U.S. Dist. LEXIS 14155, at *1 (D. Mass. Jan. 29, 2019), appeal noticed, No. 19-1324 (1st Cir.); Brevil v. Jones, No. 17-1529, 2018 WL 5993731, at *4 (S.D.N.Y. Nov. 14, 2018); Darko v. Sessions, 342 F. Supp. 3d 429, 435 (S.D.N.Y. 2018); Alvarez Figueroa v. McDonald, No. 18-10097, 2018 WL 2209217, at *5 (D. Mass. May 14, 2018); see also Hernandez v. Sessions, 872 F.3d 976, 990-94 (9th Cir. 2017); Singh v. Holder, 638 F.3d 1196, 1203 (9th Cir. 2011); Lett v. Decker, 346 F. Supp. 3d 379, 389 (S.D.N.Y. 2018), appeal noticed, No. 18-3714 (2d Cir.); Brissett v. Decker, 324 F. Supp. 3d 444, 454 (S.D.N.Y. 2018).3
28. Nevertheless, in this District and elsewhere, the government continues to make individuals bear the burden of proof when they seek release from detention, and to detain individuals on bond without consideration of their financial circumstances or suitability for alternative conditions of release. See Ex. A (Noureddine Aff’t) ¶¶4-6.
29. Unless this Court orders class-wide relief, the government’s practices will routinely deny fundamental due process to immigration detainees. To comport
3 Cf. 18 U.S.C. § 3142(c)(2); United States v. Mantecon-Zayas, 949 F.2d 548, 551 (1st Cir. 1991).
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with the Due Process Clause and other governing law, at a bond hearing for an 8 U.S.C. § 1226(a) detainee, the government must be required to prove by clear and convincing evidence: (1) that the detainee is a danger to others or a flight risk; and (2) that no condition or combination of conditions will reasonably assure his/her future appearance and the safety of the community. Additionally, where an immigration judge determines that release on bond is warranted, the immigration judge must consider the detainee’s ability to pay the bond before determining the bond amount, as well as whether alternative, nonmonetary conditions are sufficient to permit his or her release.
30. As described below, Petitioners’ continued civil detention is unlawful because they have not received a bond hearing that meets these standards. Instead, each received a bond hearing in which the immigration court placed the burden of proof on him. Each was prejudiced by the government’s error and remains detained.
STATEMENT OF FACTS I. Petitioner Gilberto Pereira Brito is not dangerous, does not present a
flight risk, and was prejudiced by a flawed bond hearing. 31. Petitioner Gilberto Pereira Brito has been detained under 8 U.S.C. § 1226(a) since March 3, 2019. Although he is the primary breadwinner and support for three U.S. citizen children and a U.S. citizen wife with serious health problems, an immigration judge denied him bond based on motor vehicle charges from more than a decade ago. 32. Mr. Pereira Brito is 39 years old and lives in Brockton, Massachusetts, with his wife and three children, ages 10 years old, 4 years old, and 11 months old.
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33. Mr. Pereira Brito’s wife is disabled and cannot work. His family depends on him to support the family financially. Before being detained, he worked as a painter and in light construction. Without him, his family is unable to pay their rent and other expenses.
34. Mr. Pereira Brito was born in Brazil. He entered the United States in April 2005 and was apprehended shortly thereafter. He was released on personal recognizance and given a putative Notice to Appear. However, the putative Notice to Appear did not provide him with the date, time, and place of his scheduled hearing, but rather purported to order him to appear at the JFK Federal Building at 1:30 a.m., when the immigration court was not in session and no hearing was scheduled. A removal order entered the next day in absentia.
35. In 2007, Mr. Pereira Brito was pulled over in Dorchester, Massachusetts, and charged with unlicensed operation of a motor vehicle and operation of a motor vehicle under the influence of alcohol. In August 2008, he admitted sufficient facts, and the case was continued without a finding until July 2009.4
36. In May 2009, Mr. Pereira Brito was charged in Hingham, Massachusetts, with driving after suspension of his license. He was released on personal recognizance at arraignment. Mr. Pereira Brito misunderstood the judge’s instructions and was incorrectly under the impression that the case was resolved. It
4 Police also initially alleged that a marijuana cigarette was found in the vehicle (which had three passengers when it was pulled over, in addition to Mr. Pereira Brito), but the possession charge against Mr. Pereira Brito was dropped at the request of the Commonwealth.
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appears a default entered in June 2009, although the Commonwealth took no further action. It also appears that this charge triggered a violation of probation notice in the original 2007 case. But the notice was mailed to the wrong address, and Mr. Pereira Brito was not aware of it.
37. Since May 2009—more than a decade ago—Mr. Pereira Brito has not been arrested, and has not been charged with or convicted of any crimes.
38. ICE arrested Mr. Pereira Brito at his home on March 3, 2019. Mr. Pereira Brito has been held in immigration detention continuously since that time, now more than three months.
39. After being detained, Mr. Pereira Brito filed a motion to reopen his removal proceeding. That motion was granted by the immigration court on or about March 18, 2019.
40. Mr. Pereira Brito intends to apply for relief, including cancellation of removal, a defense to removal that is available to certain individuals who have been in the United States for more than 10 years and have U.S. citizen family members who would suffer an “exceptional and extremely unusual hardship” if the noncitizen were removed.5
41. On April 4, 2019, Mr. Pereira Brito received a bond hearing before an immigration judge in the Boston Immigration Court pursuant to 8 U.S.C. § 1226(a). The immigration judge required that, in order to be released on bond, Mr. Pereira
5 Mr. Pereira Brito is also the beneficiary of an approved I-130, Petition for Alien Relative, filed by his wife. That petition could become the basis for an application for lawful permanent resident status at a future date.
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Brito bear the burden to prove that he is not a danger or flight risk. See Ex. B (memorandum of bond decision).
42. In connection with that bond hearing, Mr. Pereira Brito’s counsel submitted an affidavit by his wife, Darcy Pereira Brito. See Ex. C (D. Pereira Brito Aff’t). His counsel also submitted medical documentation and Social Security Administration documentation relating to her disability. Additionally, his counsel filed documents demonstrating his strong ties to the community, including letters of support and family photographs. See, e.g., Exs. D & E. For example, Dr. Nancy Chapin, the family’s pediatrician, explained that “without [Mr. Pereira Brito’s] emotional and financial support his family would suffer tremendously.” See Ex. D.
43. At the bond hearing, Mr. Pereira Brito learned that his 2007 and 2009 cases were still open, and that the government was relying on these decade-old cases as bases to argue that he should remain detained.
44. The immigration judge denied bond. In a subsequent explanatory decision, the immigration judge acknowledged that Mr. Pereira Brito “has been in the United States for over a decade, has a fixed address, and has existing family ties.” However, the court nevertheless ruled that Mr. Pereira Brito “did not meet his burden to demonstrate that he neither poses a danger to the community nor is a risk of flight,” based on the two decade-old cases and his purported failure to demonstrate that “he has a strong case for eligibility for relief from removal.” See Ex. B (memorandum of bond decision).
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45. Mr. Pereira Brito appealed this decision to the BIA on or about May 3, 2019. The appeal remains pending.
46. On May 30, 2019, Mr. Pereira Brito’s immigration attorney filed a motion for a new bond hearing based on a change in circumstances, including his wife’s deteriorating medical condition. The motion was denied on or about June 10, 2019.
47. While detained, Mr. Pereira Brito has engaged criminal defense counsel to help him resolve the two old cases. The violation of probation proceeding in the 2007 case has now been dismissed, and the case is therefore resolved. The 2009 case is scheduled for a hearing on June 17, 2019, at which time it will likely be resolved.
48. Mr. Pereira Brito’s immigration proceedings have been pending since March and will likely continue for some time. His next hearing is currently scheduled for June 28, 2019.
49. Without an adequate bond hearing, Mr. Pereira Brito will likely remain detained throughout the pendency of these proceedings. He has already been in jail for more than three months.
50. Had Mr. Pereira Brito received an adequate bond hearing, he could have—and likely would have—been released. Mr. Pereira Brito was prejudiced by the error. II. Petitioner Florentin Avila Lucas is not dangerous, does not present a
flight risk, and was prejudiced by a flawed bond hearing. 51. Petitioner Florentin Avila Lucas has been detained pursuant to 8 U.S.C. § 1226(a) since March 20, 2019. He has never been charged with or convicted of any
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crime. Since 2006, he has lived and worked at the same dairy farm in Claremont, New Hampshire. Nevertheless, an immigration judge denied him bond based on the government’s allegation that—when approached and questioned by a plainclothes Border Patrol agent at a thrift store—he did not immediately permit himself to be handcuffed.
52. Mr. Avila Lucas is 40 years old. He works 60 to 70 hours per week. 53. On March 20, 2019, Mr. Avila Lucas drove with a friend into Lebanon, New Hampshire. Mr. Avila Lucas planned to take his friend out for lunch for his birthday. Lebanon is located approximately 95 miles south of the U.S.-Canada border. 54. In Lebanon, Mr. Avila Lucas and his friend stopped at a thrift store so that his friend could buy some new work clothes. 55. Mr. Avila Lucas was unaware that two plainclothes Border Patrol agents in an unmarked vehicle were conducting a surveillance operation in the area. The agents trailed his vehicle and followed him into the store. 56. While Mr. Avila Lucas was in the store, one of the Border Patrol agents approached him and asked him to step out to the parking lot. In the parking lot, the agent asked Mr. Avila Lucas several questions. The agent then grabbed Mr. Avila Lucas, pushed him to the ground, handcuffed him, and took him into custody. 57. On or about March 26, 2019, the government served Mr. Avila Lucas with a Notice to Appear charging that he is a removable alien and seeking his deportation to Guatemala.
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58. On May 2, 2019, Mr. Avila Lucas received a bond hearing before an immigration judge in the Boston Immigration Court pursuant to 8 U.S.C. § 1226(a). The immigration judge required that, in order to be released on bond, Mr. Avila Lucas bear the burden to prove that he is not a danger or flight risk.
59. In connection with that bond hearing, Mr. Avila Lucas’s counsel submitted letters from members of the Claremont community attesting to his good character and work ethic. The family that operates the dairy farm where Mr. Avila Lucas works described him as “a valued part of our team and like family to us,” extolled his “quiet, calm demeanor,” and noted that “[h]is moral conduct is something we should all strive for” and that “[t]he work ethic he shows on a daily basis is one not often seen in today’s society.” See Ex. F (letters).
60. Also in connection with that bond hearing, the government submitted reports of Mr. Avila Lucas’s arrest prepared by the Border Patrol agents. Among other things, these documents assert that, when the Border Patrol agent—who was not in uniform, and was operating far from any international boundary—first showed Mr. Avila Lucas the handcuffs, Mr. Avila Lucas withdrew his hands and stepped away. The documents further claim that the Border Patrol agent then pulled Mr. Avila Lucas to the ground, and that Mr. Avila Lucas had his hands under his body and said “no” when instructed to withdraw them. The documents state that “[a]fter a short time,” Mr. Avila Lucas was handcuffed and became cooperative. See Ex. G.
61. Despite the fact that Mr. Avila Lucas has no criminal record and is an established member of his community, the immigration judge denied Mr. Avila
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Lucas’s request for release. Instead, based upon the Border Patrol agents’ allegations, the immigration judge ruled that Mr. Avila Lucas “failed to meet his burden of proof to show that he is not a danger or flight risk.” See Ex. H (May 2, 2019 Order).
62. Mr. Avila Lucas appealed this decision to the BIA on or about May 30, 2019. The appeal remains pending.
63. Mr. Avila Lucas’s immigration proceedings have been pending since March and will likely continue for some time. Mr. Avila Lucas has filed a motion to suppress various evidence—including evidence that the government is relying upon to prove his alienage—based upon the government’s egregious violations of law in connection with his interrogation and arrest on March 20, 2019. See Ex. I (motion to suppress and declaration of Mr. Avila Lucas). A hearing is currently scheduled for June 18, 2019. If that motion is denied, or the government is otherwise able to prove that Mr. Avila Lucas is a removable alien, then Mr. Avila Lucas expects to apply for relief from removal, including withholding of removal based on a likelihood of persecution if he is deported to Guatemala.
64. Without an adequate bond hearing, Mr. Avila Lucas will likely remain jailed throughout the pendency of these proceedings. He has already been in jail for almost three months.
65. Had Mr. Avila Lucas received an adequate bond hearing, he could have—and likely would have—been released. Mr. Avila Lucas was prejudiced by the error.
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III. Petitioner Jacky Celicourt is not dangerous, does not present a flight risk, and was prejudiced by a flawed bond hearing. 66. Petitioner Jacky Celicourt has been detained under 8 U.S.C. § 1226(a)
since January 16, 2019. Mr. Celicourt fled to the United States to escape political persecution after being the victim of an attempted murder. The immigration judge denied him bond based on an allegation that he had attempted to steal a pair of headphones worth $5.99.
67. Mr. Celicourt is 37 years old. He resides in Nashua, New Hampshire. Before being detained, he worked in construction.
68. Mr. Celicourt was born in Haiti. He was a volunteer and political activist for one of Haiti’s political parties, including during the turbulent election period in 2015 and 2016.
69. In 2017, Mr. Celicourt was the target of an attempted murder based on his political activity. He fled the country in December 2017, and resided briefly in the Dominican Republic. In March 2018, he entered the United States on a tourist visa.
70. About nine months later, in December 2018, Mr. Celicourt went to a discount store in Nashua, New Hampshire, to purchase socks and gloves for work. While he was there, he decided to also purchase a pair of $5.99 earbuds. He received a phone call while in the store, and used the earbuds to answer the call. He then placed the earbuds in his pocket.
71. When Mr. Celicourt went to the checkout counter, he paid for his gloves and socks, but he forgot about the earbuds. A store employee asked him about the
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earbuds, and he offered to pay for them. Instead, the employee demanded his

identification. When the employee saw his Haitian identification documents, she told

him, “I don’t want your money, I want you deported back to your country,” or words

to that effect. She called the police. 72. The police charged Mr. Celicourt with a single count of Theft by

Unauthorized Taking between $0 and $1,000. He was released on personal

recognizance. See Exs. J (docket) & K (bail order).

73. On January 16, 2019, Mr. Celicourt appeared as required in the Nashua

district court in Nashua, New Hampshire, to respond to the charge. Mr. Celicourt

pled guilty and was fined $310.6 See Ex. J (docket). ICE arrested him as he walked

out of the courtroom.

74.

Shortly after he was arrested by ICE, the government served Mr.

Celicourt with a Notice to Appear charging that he is a removable alien and seeking

his deportation to Haiti.

75. On February 7, 2019, Mr. Celicourt received a bond hearing before an

immigration judge in the Boston Immigration Court pursuant to 8 U.S.C. § 1226(a).

The immigration judge required that, in order to be released on bond, Mr. Celicourt

bear the burden to prove that he is not a danger or flight risk. 76. In connection with that bond hearing, Mr. Celicourt’s counsel submitted

eight letters of support from friends. The letters described Mr. Celicourt as “a very

excellent person to everyone,” “a very hard working gentleman,” “kind with my

6 Court staff have informed counsel that the fine was suspended for one year. 19

Case 1:19-cv-11314-PBS Document 1 Filed 06/13/19 Page 20 of 26
children,” and “one of the most helpful human being[s] that I know.” See Ex. L (letters of support).
77. At the bond hearing, the government submitted no evidence of any criminal history except for Mr. Celicourt’s recent arrest and conviction for neglecting to pay for less than six dollars’ worth of merchandise, which the government asserted was a “crime of moral turpitude.” See Ex. M (bond hearing transcript) & N (bond order).
78. The immigration judge denied bond. The judge found that Mr. Celicourt had “failed to meet his burden of proof to show he is not a danger to property or a flight risk” because he had been convicted of taking the $5.99 earbuds, had overstayed his visa, and had worked without employment authorization. See Ex. M (bond hearing transcript) & N (bond order).
79. Mr. Celicourt’s immigration proceedings have been pending since January and will likely continue for some time. Mr. Celicourt applied from asylum and withholding of removal based on his persecution and the attempt to murder him in Haiti. On April 10, 2019, the immigration judge found that Mr. Celicourt was “a credible witness,” but nevertheless denied his application. Mr. Celicourt appealed the denial to the BIA on or about May 9, 2019. That appeal remains pending. The appeal may result in Mr. Celicourt being granted asylum, or in his case being remanded to the immigration judge for further proceedings, or (if the denial of asylum is affirmed) in his filing a petition for review in the U.S. Court of Appeals for the First Circuit.
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80. Mr. Celicourt remains detained pursuant to 8 U.S.C. § 1226(a) and eligible for release.
81. Without an adequate bond hearing, Mr. Celicourt will likely remain detained throughout the pendency of these proceedings. He has already been in jail for almost six months.
82. Had Mr. Celicourt received an adequate bond hearing, he could have— and likely would have—been released. Mr. Celicourt was prejudiced by the error.
CLASS ALLEGATIONS 83. The foregoing allegations are re-alleged and incorporated herein. 84. Petitioners seek to represent a class defined as people who, now or at any future time, are detained pursuant to 8 U.S.C. § 1226(a), and either are being held in immigration detention in Massachusetts or are otherwise subject to the jurisdiction of the Boston Immigration Court. The class thus includes individuals who are detained in New Hampshire, or other New England states, but appear in the Boston Immigration Court for their bond hearings and removal proceedings. It also includes individuals who are detained in western Massachusetts but appear in the Hartford Immigration Court. The members of the class are readily ascertainable through Respondents’ records. 85. Petitioners bring this action pursuant to Federal Rule of Civil Procedure 23(a) and (b)(2), and as a representative habeas class action, on behalf of themselves and all other similarly-situated persons who are either are being held in immigration
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Case 1:19-cv-11314-PBS Document 1 Filed 06/13/19 Page 22 of 26
detention in Massachusetts or are otherwise subject to the jurisdiction of the Boston Immigration Court.
86. The class is so numerous that joinder of all members is impracticable. Publicly available information concerning the number of ICE detainees in Massachusetts and New Hampshire indicates that the portion of the class consisting of current detainees under 8 U.S.C. § 1226(a) consists of at least several hundred individuals. In the past six months alone, at least 268 bond hearings in the Boston and Hartford immigration courts resulted in a denial of bond. The class is substantially larger when all future potential detainees under § 1226(a) are included.
87. There are multiple questions of law and fact common to the members of the proposed class. These common questions include, but are not limited to, the following:
a. Whether Respondents are violating the Petitioners’ and the class members’ due process rights by detaining them without a hearing in which the government bears the burden to prove the necessity of detention, and by failing to consider their ability to pay in determining the appropriate amount of bond and to determine if they may be released on alternative conditions of supervision; b. Whether Respondents’ bond hearing practices violate Petitioners’ statutory rights. 88. Petitioners’ claims are typical of the claims of the proposed class, and Petitioners will fairly and adequately protect the interests of the proposed class.
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Case 1:19-cv-11314-PBS Document 1 Filed 06/13/19 Page 23 of 26
Petitioners’ interests do not conflict with those of other members of the proposed class, and Petitioners have retained competent counsel experienced in class actions and immigration law.
89. Moreover, certification is appropriate under Federal Rule of Civil Procedure 23(b)(2) because class members are subject to a common practice by Respondents: subjecting them to detention based upon an inadequate bond hearing at which the detainee bears the burden of establishing that he or she is not a flight risk and does not pose a danger to the community.
CLAIMS FOR RELIEF Count One – Detention in Violation of the U.S. Constitution 90. The foregoing allegations are re-alleged and incorporated herein. 91. Petitioners, and all members of the putative class, are or will be subjected to detention without a bond hearing at which the government bears the burden to justify continued detention by proving by clear and convincing evidence that the detainee is a danger to others or a flight risk, and, even if he or she is, that no condition or combination of conditions will reasonably assure the detainee’s future appearance and the safety of the community, and which includes consideration of the detainee’s ability to pay in selecting the amount of any bond and suitability for release on alternative conditions of supervision. 92. Petitioners, and all members of the putative class, are or will be detained without receiving a bond hearing that satisfies the requirements of the Due Process Clause of the Fifth Amendment to the U.S. Constitution.
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Count Two – Detention in Violation of the Immigration and Nationality Act and the Administrative Procedures Act
93. The foregoing allegations are re-alleged and incorporated herein.
94. Petitioners, and all members of the putative class, are or will be
detained in violation of the Immigration and Nationality Act and the Administrative
Procedures Act. The BIA decision establishing the present burden allocation, Matter
of Adeniji, 22 I&N Dec. 1102 (BIA 1999), constituted a departure from prior precedent
without reasoned explanation, and incorrectly relied upon inapplicable regulations.
PRAYER FOR RELIEF
Wherefore, Petitioners asks this Court to grant them the following relief:
1. Enter an order compelling the release of each named Petitioner unless, within seven days of this Court’s order, he is provided with an adequate bond hearing as described in paragraph 4, below.
2. Certify a class defined as: All people who, now or at any future time, are detained pursuant to 8 U.S.C. § 1226(a), and either are being held in immigration detention in Massachusetts or are otherwise subject to the jurisdiction of the Boston Immigration Court.
3. Name the individually named Petitioners as representatives of the class, and appoint Petitioner’s counsel as class counsel.
4. Declare that each class member is entitled to a bond hearing at which the government bears the burden to justify continued detention by proving by clear and convincing evidence that the detainee is a danger to others or a flight risk, and, even if he or she is, that no condition or combination of conditions will reasonably assure the detainee’s future appearance and the safety of the community, and which includes consideration of the detainee’s ability to pay in selecting the amount of any bond and suitability for release on alternative conditions of supervision.
5. Order that each class member be released unless provided with a bond hearing consistent with paragraph 4 within a reasonable period, determined by the Court, after this order enters or after their detention under 8 U.S.C. § 1226(a) begins.
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Case 1:19-cv-11314-PBS Document 1 Filed 06/13/19 Page 25 of 26

6. Grant attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) and 5 U.S.C. § 504 et seq., if applicable; and
7. Grant any other and further relief that this Court may deem fit and proper.

Dated: June 13, 2019

Respectfully submitted,
GILBERTO PEREIRA BRITO, FLORENTIN AVILA LUCAS, and JACKY CELICOURT, individually and on behalf of all those similarly situated,
By and through their counsel,
/s/ Susan M. Finegan Susan M. Finegan (BBO # 559156) Susan Cohen (BBO # 546482) Andrew Nathanson (BBO # 548684) Mathilda S. McGee-Tubb (BBO # 687434) Ryan Dougherty (BBO # 703380) MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C. One Financial Center Boston, MA 02111 (617) 542-6000 smfinegan@mintz.com sjcohen@mintz.com annathanson@mintz.com msmcgee-tubb@mintz.com rtdougherty@mintz.com
Matthew R. Segal (BBO# 654489) Daniel L. McFadden (BBO# 676612) Adriana Lafaille (BBO# 680210)

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Case 1:19-cv-11314-PBS Document 1 Filed 06/13/19 Page 26 of 26
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MASSACHUSETTS, INC. 211 Congress Street Boston, MA 02110 Tel: (617) 482-3170 msegal@aclum.org dmcfadden@aclum.org alafaille@aclum.org
Gilles R. Bissonnette (BBO # 669225) Henry R. Klementowicz (BBO # 685512) SangYeob Kim (N.H. Bar No. 266657)* AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NEW HAMPSHIRE New Hampshire Immigrants’ Rights Project 18 Low Ave. Concord, NH 03301 Tel.: 603.333.2081 gilles@aclu-nh.org henry@aclu-nh.org sangyeob@aclu-nh.org
Michael K. T. Tan* ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, New York 10004 Tel: 212-549-2660 mtan@aclu.org
*Application for admission pro hac vice forthcoming
Attorneys for Petitioners
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 Case 1:19-cv-11314-PBS Document 58 Filed 08/06/19 Page 1 of 25

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

___________________________________

)

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

MEMORANDUM AND ORDER August 6, 2019
Saris, C.J. 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
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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,
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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
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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
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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
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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 § 1226(a) Bond Hearings
According to Plaintiffs’ uncontroverted data, the Boston and Hartford Immigration Courts, the latter of which has jurisdiction over removal proceedings for aliens detained in western Massachusetts, held bond hearings for 700 and 77 aliens, respectively, during the six-month period between November 1, 2018 and May 7, 2019. An immigration judge issued a decision 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 individuals were still in custody ten days after bond was set. III. Procedural History
On June 13, 2019, Plaintiffs filed a habeas corpus petition and class action complaint on behalf of all aliens who are or will be detained under 8 U.S.C. § 1226(a) either within Massachusetts or otherwise within the jurisdiction of the Boston Immigration Court. The complaint alleges that allocating the
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burden of proof to the alien at a § 1226(a) bond hearing is a violation of the Due Process Clause (Count I) and the INA and APA (Count II). The complaint also alleges that due process requires that the Government show the alien’s dangerousness or flight risk by clear and convincing evidence and that the immigration court consider alternative conditions of release and ability to pay in determining release and the amount of bond. Plaintiffs seek an injunction ordering constitutionally compliant bond hearings for all class members and a declaratory judgment explaining the class members’ due process rights.
After the filing of this lawsuit, ICE authorized the release of all three named plaintiffs on bond. They all posted bond and were released.
Five days after filing suit, Plaintiffs moved for class certification under Federal Rule of Civil Procedure 23(b)(2). The Government moved to stay the civil action because many of the legal arguments raised by the class are currently before the First Circuit in Doe v. Smith, No. 19-1368 (1st Cir. Apr. 18, 2019), an appeal from this Court’s grant of habeas relief to an individual alien detained pursuant to § 1226(a). The Court denied the motion to stay, and the Government now opposes certification of the class.
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DISCUSSION I. Statutory Background
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. 8 C.F.R. § 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.”1 In re
1 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
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Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006). The alien must show that he is not “a threat to national security, a danger to the community at large, likely to abscond, or otherwise a poor bail risk.” Id. 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, 138 S. Ct. 830, 847–48 (2018). The Ninth Circuit had employed the canon of constitutional avoidance to read a requirement into § 1226(a) for “periodic bond hearings every six months in which the Attorney General must prove by clear and convincing evidence that the alien’s continued detention is necessary.” Id. at 847. The Supreme Court held that “[n]othing in § 1226(a)’s text . . . even remotely supports the imposition of either of those requirements.” Id. The Supreme Court expressly declined to address whether the Constitution required these procedural protections. See id. at 851.
Post-Jennings, this Court has repeatedly ordered new bond hearings for aliens detained under § 1226(a) on the basis that the agency’s allocation of the burden of proof to the alien
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 In re Adeniji, 22 I. & N. Dec. 1102, 1112-13 (BIA 1999).
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violates due process. See, e.g., Doe v. Tompkins, No. 18-cv12266-PBS, 2019 U.S. Dist. LEXIS 22616, at *2 (D. Mass. Feb. 12, 2019), appeal filed, No. 19-1368 (1st Cir. Apr. 18, 2019); Diaz Ortiz v. Tompkins, No. 18-cv-12600-PBS, 2019 U.S. Dist. LEXIS 14155, at *2 (D. Mass. Jan. 29, 2019), appeal filed, No. 19-1324 (1st Cir. Mar. 29, 2019); Pensamiento v. McDonald, 315 F. Supp. 3d 684, 692 (D. Mass. 2018), appeal dismissed, No. 18-1691 (1st Cir. Dec. 26, 2018); Figueroa v. McDonald, No. 18-cv-10097-PBS, 2018 WL 2209217, at *5 (D. Mass. May 14, 2018).
Most courts have held that where “the government seeks to detain an alien pending removal proceedings, it bears the burden of proving that such detention is justified.” Darko v. Sessions, 342 F. Supp. 3d 429, 435 (S.D.N.Y. 2018) (collecting cases); see also Singh v. Holder, 638 F.3d 1196, 1203 (9th Cir. 2011) (holding that due process requires the Government to bear the burden of proof at a § 1226(a) bond hearing); cf. GuerreroSanchez v. Warden York Cty. Prison, 905 F.3d 208, 224 (3d Cir. 2018) (placing the burden of proof on the Government at a bond hearing for an alien detained after a final order of removal under 8 U.S.C. § 1231(a)(6)).
Additionally, this Court has held that a criminal alien subject to unreasonably prolonged mandatory detention under 8 U.S.C. § 1226(c) is entitled to a bond hearing at which the Government bears the burden of proving either his dangerousness
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by clear and convincing evidence or his risk of flight by a preponderance of the evidence. Reid v. Donelan, -- F. Supp. 3d --, 2019 WL 2959085, at *16 (D. Mass. 2019). In deciding whether to set bond and in what amount, the immigration court must also consider the alien’s ability to pay and alternative conditions of release that reasonably assure the safety of the community and the alien’s future appearances. Id. II. Class Certification Standard
A class may be certified pursuant to Federal Rules of Civil Procedure 23 only if:
(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). In addition to these four prerequisites, the class must satisfy at least one requirement of Rule 23(b). Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 38 (1st Cir. 2003). Here, Plaintiffs invoke Rule 23(b)(2), which requires that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”2
2 At least for Rule 23(b)(3) classes, the First Circuit adds an extratextual ascertainability requirement to the test for
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“A party seeking class certification must affirmatively
demonstrate his compliance with [Rule 23] -- that is, he must be
prepared to prove that there are in fact sufficiently numerous
parties, common questions of law or fact, etc.” Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338, 350 (2011). A district court must
“probe behind the pleadings” and conduct “a rigorous analysis”
to ensure Rule 23 is satisfied. Id. at 350-51 (quoting Gen. Tel.
Co. of Sw. v. Falcon, 457 U.S. 147, 160-61 (1982)).
III. Analysis
Plaintiffs seek certification of the following class: all
people who, now or in the future, are detained pursuant to 8
U.S.C. § 1226(a) and are held in immigration detention in
Massachusetts or are otherwise subject to the jurisdiction of
the Boston Immigration Court. Although they do not waive their
claim based on the APA and INA, Plaintiffs currently seek to
certify this class only for their due process claim.
class certification. In re Nexium Antitrust Litig., 777 F.3d 9, 19 (1st Cir. 2015). Although the First Circuit long ago stated that the lack of required “notice to the members of a (b)(2) class” means that “the actual membership of the class need not therefore be precisely delimited,” Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir. 1972), abrogated on other grounds by Gardner v. Westinghouse Broad. Co., 437 U.S. 478 (1978), some courts in this district treat ascertainability as a threshold requirement for any type of class, see, e.g., Manson v. GMAC Mortg., LLC, 283 F.R.D. 30, 38 n.26 (D. Mass. 2012); Shanley v. Cadle, 277 F.R.D. 63, 67-68 (D. Mass. 2011). Even if a (b)(2) class must satisfy this requirement, the members of Plaintiffs’ proposed class are easily ascertainable through ICE’s detention records.
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While apparently conceding that the numerosity and adequacy of class counsel requirements are met,3 the Government argues that this class does not satisfy the requirements of commonality, typicality, adequacy of the named plaintiffs, or Rule 23(b)(2). The Government raises three arguments against certification: 1) the jurisdictional bar in 8 U.S.C. § 1252(f)(1), 2) the mootness of the named plaintiffs’ claims, and 3) the prejudice requirement for a due process claim in the immigration context. The Court addresses each argument in turn.
A. 8 U.S.C. § 1252(f)(1) First, the Government contends that 8 U.S.C. § 1252(f)(1) bars both the injunctive and corresponding declaratory relief Plaintiffs seek, meaning that the Court cannot issue any unitary classwide remedy if the class is certified under Rule 23(b)(2). Section 1252(f)(1) strips all courts, except the Supreme Court,

3

Based on Plaintiffs’ data showing that the Boston and

Hartford Immigration Courts held bond hearings for 777 aliens

over a recent six-month period, the Court finds it is likely

that more than forty aliens are detained pursuant to § 1226(a)

in Massachusetts or subject to the jurisdiction of the Boston

Immigration Court at any time. See Henderson v. Bank of N.Y.

Mellon, N.A., 332 F. Supp. 3d 419, 426 n.3 (D. Mass. 2018) (“[A]

proposed class of 40 or more generally meets numerosity in the

First Circuit.”). The transient nature of the class and the

inability of many aliens to speak English and secure counsel

render joinder impracticable. See Reid v. Donelan, 297 F.R.D.

185, 189 (D. Mass. 2014). With significant experience litigating

immigration class actions, class counsel “is qualified,

experienced and able to vigorously conduct the proposed

litigation.” Andrews v. Bechtel Power Corp., 780 F.2d 124, 130

(1st Cir. 1985).

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of jurisdiction “to enjoin or restrain the operation of [the removal provisions of the INA], other than with respect to the application of such provisions to an individual alien against whom [removal] proceedings . . . have been initiated.” 8 U.S.C. § 1252(f)(1). This Court has already held that § 1252(f)(1) does not bar declaratory relief. See Reid, 2019 WL 2959085, at *15; Reid v. Donelan, No. 13-cv-30125-PBS, 2018 WL 5269992, at *7 (D. Mass. Oct. 23, 2018). The Sixth Circuit in Hamama v. Adducci expressed skepticism that § 1252(f)(1) permitted declaratory relief under its specific facts but declined to address the issue, which was not before it. 912 F.3d 869, 880 n.8 (6th Cir. 2018). However, Hamama preceded a majority of the Supreme Court indicating that a district court can entertain a request for declaratory relief despite § 1252(f)(1). See Reid, 2019 WL 2959085, at *15 (explaining that three justices in Jennings, 138 S. Ct. at 875 (Breyer, J., dissenting), and three additional justices in Nielsen v. Preap, 139 S. Ct. 954, 962 (2019) (opinion of Alito, J.), expressed this opinion).
This Court has also issued an injunction ordering certain procedural protections required by due process at bond hearings for aliens detained under 8 U.S.C. § 1226(c). See Reid, 2019 WL 2959085, at *15. Section 1226 is silent on the procedural rules for bond hearings, including which party bears the burden of proof, what standard of proof is to be applied, and what the
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immigration court must consider. See 8 U.S.C. § 1226; Reid, 2019 WL 2959085, at *12 n.7, *15. Instead, the BIA in precedential decisions has set the procedural rules immigration courts apply. See Reid, 2019 WL 2959085, at *12 & n.7; see also Guerra, 24 I. & N. Dec. at 40 (placing the burden of proof on the alien to justify his release at a bond hearing). In fact, the BIA used to place the burden of proof on the Government but changed course in the late 1990s. See Reid, 2019 WL 2959085, at *12 n.7. While the injunction Plaintiffs request would “abrogate[] agency precedent imposing the burden of proof on the alien” and require the Government to follow certain other procedures at bond hearings, id. at *15, it would not mandate release or allow an opportunity for release not provided in the statute, see Hamama, 912 F.3d at 879-80 (holding that § 1252(f)(1) stripped the district court of jurisdiction to enter such an injunction). Because an injunction would “in no way enjoin[] or restrain[] the operation of the detention statute,” Reid, 2019 WL 2959085, at *15, it is not barred by § 1252(f)(1).
The Government emphasizes that such an injunction would abrogate twenty years of precedent that places the burden on the alien based on the agency’s interpretation of congressional intent. The Government’s claim that congressional intent supports the agency’s placement of the burden of proof on the alien is questionable, as the BIA’s decision allocating this
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burden relied on a regulation that does not address immigration court bond hearings. See In re Adeniji, 22 I. & N. Dec. 1102, 1113 (BIA 1999) (citing 8 C.F.R. § 236.1(c)(8)); see also Mary Holper, The Beast of Burden in Immigration Bond Hearings, 67 Case Western Res. L. Rev. 75, 90-93 (2016) (explaining that the BIA in Adeniji adopted the burden of proof from 8 C.F.R. § 236.1(c)(8) despite its inapplicability to immigration court bond hearings). In any event, § 1252(f)(1) strips courts of jurisdiction to enjoin the operation of the statute, not any agency regulation or precedent that purportedly reflects congressional intent.4 Cf. Kucana v. Holder, 558 U.S. 233, 236-37 (2010) (holding that 8 U.S.C. § 1252(a)(2), which bars judicial review of agency action “the authority for which is specified under this subchapter to be in the discretion of the Attorney General,” applies only to “determinations made discretionary by statute,” not those “declared discretionary by the Attorney General himself through regulation” (emphasis omitted)).
4 The Government also contends that an order releasing each class member unless he is provided with a constitutionally adequate bond hearing enjoins § 1226(a) in violation of § 1252(f)(1) because it would authorize the release of aliens for reasons other than a discretionary determination by an immigration court as specified in the statute. See 8 U.S.C. § 1226(a) (“[T]he Attorney General . . . may release the alien . . . .”). The Court will decide the remedy when it addresses the merits.
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B. Mootness of the Named Plaintiffs’ Claims Second, the Government argues that the named plaintiffs are not adequate class representatives because they have already been released from custody. A class action “ordinarily must be dismissed as moot if no decision on class certification has occurred by the time that the individual claims of all named plaintiffs have been fully resolved.” Cruz v. Farquharson, 252 F.3d 530, 533 (1st Cir. 2001). However, a court may certify a class with a moot named plaintiff where “it is certain that other persons similarly situated will continue to be subject to the challenged conduct and the claims raised are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 76 (2013) (quotation omitted). Plaintiffs’ proposed class satisfies the inherently transitory exception. Plaintiffs explain, and the Government does not controvert, that the Boston Immigration Court determines bond for three to six aliens at each master calendar hearing, which happens at least three or four times a week. Because the immigration court always places the burden of proof on the alien and rarely considers ability to pay, the Government consistently holds bond hearings according to the procedures the
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class is challenging. And given the Government’s ability to end the allegedly unconstitutional detention of an alien through removal or release and each alien’s interest in filing an individual habeas petition to seek immediate relief, it is uncertain whether any alien will be subject to § 1226(a) detention long enough to serve as a class representative. As Pereira Brito, Avila Lucas, and Celicourt are still in contact with Plaintiffs’ counsel and willing to pursue this action, the fact that the Government has released them on bond therefore does not render them inadequate named plaintiffs. See Reid v. Donelan, 297 F.R.D. 185, 192 (D. Mass. 2014) (finding a named plaintiff who had already been granted a bond hearing and release adequate to represent a class challenging mandatory detention without a bond hearing under 8 U.S.C. § 1226(c) for similar reasons).
C. Prejudice Requirement Finally, the Government emphasizes that, in deciding whether the misallocation of the burden of proof or other procedural flaw in an immigration proceeding violates due process, a court must conduct a prejudice inquiry asking if the error could have made a difference in the outcome. This prejudice analysis involves an individualized assessment of each class member’s criminal history and personal characteristics, the Government explains, so the Court cannot determine whether
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each class member has suffered a due process violation on a classwide basis. Accordingly, the Government argues that the class fails to meet Rule 23(a)’s requirements of commonality, typicality and adequacy of the named plaintiffs and cannot be certified under Rule 23(b)(2).
1. Commonality, Typicality, and Adequacy The Government’s argument misses the mark as it relates to commonality, typicality, and adequacy. To satisfy commonality, “the class members [must] ‘have suffered the same injury.’” Dukes, 564 U.S. at 349-50 (quoting Falcon, 457 U.S. at 157). In particular, the class’s “claims must depend upon a common contention . . . of such a nature that it is capable of classwide resolution -- which means that the determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. A named plaintiff satisfies typicality if his “injuries arise from the same events or course of conduct as do the injuries of the class” and his “claims and those of the class are based on the same legal theory.” Henderson v. Bank of N.Y. Mellon, N.A., 332 F. Supp. 3d 419, 427 (D. Mass. 2018) (quoting In re Credit Suisse–AOL Sec. Litig., 253 F.R.D. 17, 23 (D. Mass. 2008)). Typicality asks “whether the putative class representative can fairly and adequately pursue the interests of the absent class members without being sidetracked by [his] own particular
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concerns.” Id. (quoting In re Credit Suisse, 253 F.R.D. at 23). In the same vein, a named plaintiff is adequate if his “interests . . . will not conflict with the interests of any of the class members.” Andrews v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir. 1985). Commonality, typicality, and adequacy all aim to ensure that maintenance of a class action is economical and the interests of absent class members are protected. See Dukes, 564 U.S. at 349 n.5.
The class satisfies commonality, typicality, and adequacy. The class presents multiple common legal questions that are central to each member’s claims and do not require any individualized analysis: Does due process require that the Government bear the burden of proof at a bond hearing? If so, what standard of proof must the Government satisfy? Must the immigration judge consider alternative conditions of release and an alien’s ability to pay in deciding on release and the amount of bond? Since all class members challenge detention pursuant to the same statutory authority and set of procedural rules and seek the same relief, the claims of the named plaintiffs are typical of those of the rest of the class, and the interests of the named plaintiffs and class members will not conflict. The common legal questions that apply to the claims of all § 1226(a) detainees mean that the named plaintiffs can adequately represent the interests of individuals who have already had a
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bond hearing with unconstitutional procedures as well as those who will have such a hearing in the future. And the need to answer a question of prejudice on an individual basis would not by itself defeat commonality, typicality, and adequacy. See, e.g., id. at 359 (noting that a class need only present a single common question to satisfy commonality); In re Credit Suisse, 253 F.R.D. at 23 (explaining that typicality does not require that the named plaintiffs’ claim be “identical to those of absent class members”).
2. Rule 23(b)(2) The Government’s argument about the prejudice requirement raises more serious questions under Rule 23(b)(2). “The key to the (b)(2) class is ‘the indivisible nature of the injunctive or declaratory remedy warranted —- the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Dukes, 564 U.S. at 360 (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 85 N.Y.U. L. Rev. 97, 132 (2009)). Accordingly, the class must show that “a single injunction or declaratory judgment would provide relief to each member of the class.” Id. In this case, all aliens detained under § 1226(a) receive bond hearings conducted in accordance with the same procedural rules set by BIA precedent. Plaintiffs seek a
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classwide injunction and declaratory judgment regarding the procedures required by due process for a § 1226(a) bond hearing.
However, the Government is correct that this Court has required a showing of prejudice before ordering a new bond hearing for an individual alien who files a habeas petition after an immigration court unconstitutionally places the burden of proof on him at an initial bond hearing. See, e.g., Pensamiento, 315 F. Supp. 3d at 693 (explaining that the “[p]etitioner must show he was prejudiced by the constitutional error” and ordering a new bond hearing because the immigration judge “could well have found that [the petitioner] was not dangerous based on a single misdemeanor conviction”). Plaintiffs’ proposed class includes aliens who are seeking a second bond hearing after receiving a constitutionally deficient one. The Court cannot issue a unitary injunction ordering new bond hearings for them without delving into their individual criminal histories and personal characteristics to determine whether they suffered prejudice from the errors at their first hearings. See In re Asacol Antitrust Litig., 907 F.3d 42, 56 (1st Cir. 2018) (explaining that the class action is a procedural device that does not alter a class member’s individual substantive rights).
That said, the Court can issue a declaratory judgment explaining the procedures due process requires at a § 1226(a)
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bond hearing and each individual’s entitlement to a new bond hearing in accordance with those procedures if he can show prejudice via an individual habeas petition. See Reid, 2019 WL 2959085, at *1 (issuing declaratory relief to a Rule 23(b)(2) class of aliens detained under § 1226(c) explaining their right to an individualized analysis to determine whether their mandatory detention without a bond hearing has become unreasonably prolonged in violation of due process). This single declaration would address the rights of all aliens who have already had a bond hearing subject to unconstitutional procedures.
To the extent the Government contends that a prejudice analysis is necessary to determine what procedures due process requires for the rest of Plaintiffs’ proposed class, namely aliens who are or will be detained under § 1226(a) and have not yet had a bond hearing before an immigration judge, the Government is mistaken. The Government “fails to distinguish between a challenge to the outcome of an immigration hearing and a preemptive objection to a procedure before the hearing takes place.” Reid v. Donelan, 2 F. Supp. 3d 38, 44 (D. Mass. 2014). When a plaintiff challenges the outcome of a hearing based on a procedural defect, the prejudice requirement “prevents the needless remanding of a case that will be resolved identically even when the procedural infirmity is remedied.” Id.; see also
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Gomez-Velazco v. Sessions, 879 F.3d 989, 993 (9th Cir. 2018) (justifying the prejudice requirement because “the results of a proceeding should not be overturned if the outcome would have been the same even without the violation”). But the “premise that a due process violation is not grounds for reversal absent a showing of . . . prejudice has no bearing on a plaintiff’s right to seek to enjoin due process violations from occurring in the first instance.” Reid, 2 F. Supp. 3d at 44. For aliens yet to have a bond hearing, their individual circumstances are irrelevant to determining what procedures due process mandates, and the Court can issue an injunction requiring the Government to implement these procedures for their bond hearings.
Because the prejudice requirement affects the legal rights of aliens who have already had hearings subject to unconstitutional procedures but not those of aliens who have yet to have bond hearings, the Court certifies separate classes for these two categories of individuals. Both classes satisfy Rule 23(b)(2) because the Court can issue a single remedy that addresses the legal rights of all members of each class.
ORDER For the foregoing reasons, Plaintiffs’ motion for class certification (Docket No. 17) is ALLOWED. The Court certifies the following two classes for the due process claim:
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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. The Court appoints Mintz Levin, the American Civil Liberties Union Foundation of Massachusetts, the American Civil Liberties Union Foundation of New Hampshire, and the ACLU Foundation Immigrants’ Rights Project as class counsel under Federal Rule of Civil Procedure 23(g). SO ORDERED.
/s/ PATTI B. SARIS Hon. Patti B. Saris Chief United States District Judge
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 Case 1:19-cv-11314-PBS Document 88 Filed 11/27/19 Page 1 of 23

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

___________________________________

)

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

MEMORANDUM AND ORDER November 27, 2019
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.

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§ 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
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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
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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.”
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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
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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

1

Plaintiffs’ statement of material facts presents slightly

different case-length figures than the Supplemental Declaration

of Sophie Beiers, which is the source for the statement of

material facts. The figures cited above are drawn directly from

Beiers’ Supplemental Declaration, but the differences between

the figures are immaterial to the Court’s decision.

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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
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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, 138 S. Ct. 830 (2018). The Ninth Circuit had employed the canon of constitutional avoidance to read a requirement into § 1226(a) for “periodic bond hearings every six months in which the Attorney General must prove by clear and convincing evidence that the alien’s continued detention is necessary.” Id. at 847. The Supreme Court held that “[n]othing in § 1226(a)’s text . . . even remotely supports the imposition of either of those requirements.” Id. The Supreme Court expressly declined to address whether the Constitution required these procedural protections. See id. at 851. II. Constitutional Claim
Plaintiffs have moved for summary judgment on their constitutional claim that that the procedures currently followed in § 1226(a) bond hearings violate the Due Process Clause of the Fifth Amendment. They contend that a constitutionally adequate bond hearing requires that (1) the burden of proof be placed on the Government, (2) the Government prove by clear and convincing evidence that the alien is dangerous and a flight risk, (3) the immigration judge consider the alien’s ability to pay in setting bond amounts, and (4) the immigration judge consider alternative
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conditions of release that will assure the safety of the community and the alien’s future appearances. There are no disputed issues of material fact.
a. Burden of Proof Plaintiffs argue that the immigration court’s allocation of the burden of proof to the alien violates due process. In Pensamiento v. McDonald, 315 F. Supp. 3d 684, 692 (D. Mass. 2018), the Court held that due process “requires placing the burden of proof on the government in § 1226(a) custody redetermination hearings. Requiring a non-criminal alien to prove that he is not dangerous and not a flight risk at a bond hearing violates the Due Process Clause.” In cases where a noncriminal alien will be deprived of liberty, due process requires the Government prove detention is necessary. See Foucha v. Louisiana, 504 U.S. 71, 81–82 (1992); Addington v. Texas, 441 U.S. 418, 427 (1979). This is especially true when many aliens are detained for extended periods of time. See Jennings, 138 S. Ct. at 860 (Breyer, J., dissenting) (stating that class members had been detained for periods ranging from six months to 831 days while pursuing asylum petitions). Most other district courts have reached the same conclusion. See Darko v. Sessions, 342 F. Supp. 3d 429, 435 (S.D.N.Y. 2018) (collecting cases). No circuit court has addressed the allocation of the burden of proof in § 1226(a)
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bond hearings post-Jennings, but the pre-Jennings caselaw (which was not disturbed by Jennings) is consistent with placing the burden of proof on the Government. See Singh v. Holder, 638 F.3d 1196, 1203 (9th Cir. 2011) (holding that due process requires the Government to bear the burden of proof at a § 1226(a) bond hearing); cf. Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d 208, 224 (3d Cir. 2018) (placing burden of proof on the Government at a bond hearing for alien detained after final order of removal under 8 U.S.C. § 1231(a)(6)). The Government directs the Court to the Eighth Circuit’s recent unpublished decision in Ali v. Brott, 770 F. App'x 298 (8th Cir. 2019). But Ali is no more helpful to the Government than Jennings. The Eighth Circuit held only that § 1226(a) does not contain a reasonableness requirement as to the amount of time an alien can be detained. Id. at 301-02. It then remanded the case for the district court to address petitioner’s constitutional challenges under the Fourth and Fifth Amendments to his detention under § 1226(a). Id. at 302.
Therefore, the Court holds that the Due Process Clause requires the Government bear the burden of proof in § 1226(a) bond hearings.
b. Standard of Proof Plaintiffs argue that due process requires that the Government prove flight risk and dangerousness by clear and
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convincing evidence in § 1226(a) bond hearings. The only standard applicable to detention hearings now is “to the satisfaction” of the immigration judge, which is effectively no standard at all and may vary from judge to judge. Although the Court has held the Government must bear the burden of proof, it has left open the question of the applicable standard of proof in § 1226(a) bond hearings.
In Reid v. Donelan, 390 F. Supp. 3d 201, 227-28 (D. Mass. 2019), however, the Court held that a criminal alien subject to unreasonably prolonged mandatory detention under 8 U.S.C. § 1226(c) is entitled to a bond hearing at which the Government bears the burden of proving either his dangerousness by clear and convincing evidence or his risk of flight by a preponderance of the evidence. This differentiated standard of proof is the same that applies in the context of criminal pretrial detention under the Bail Reform Act. See United States v. Salerno, 481 U.S. 739, 751 (1987) (holding that pretrial detention is “consistent with the Due Process Clause” “[w]hen the Government proves by clear and convincing evidence that an arrestee presents an identified and articulable threat to an individual or the community”); United States v. Patriarca, 948 F.2d 789, 793 (1st Cir. 1991) (holding that standard for pretrial detention based on risk of flight is preponderance of the evidence).
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Plaintiffs argue that a higher standard of proof for risk of flight is appropriate because aliens with no criminal convictions do not pose the same risk of flight as defendants in criminal proceedings. They point out that an alien who fails to appear for an immigration court proceeding may forfeit the right to contest removal. See 8 U.S.C. § 1229a(b)(5). However, many aliens do not have viable defenses to removal and may well prefer to flee, rather than be removed from the country. While due process requires procedural protections for aliens unlawfully in this country, the Court is not persuaded that aliens who are civilly detained are entitled to protection that go beyond those given to criminally detained U.S. citizens. Cf. Demore v. Kim, 538 U.S. 510, 522 (2003) (“Congress may make rules as to aliens that would be unacceptable if applied to citizens.”).
The Court concludes that the vague standard of proof currently employed at § 1226(a) bond hearing does not provide an alien with “the opportunity to be heard ‘at a meaningful time and in a meaningful manner’” given the extent of the liberty interest at stake. Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). Accordingly, the Court holds the Government must prove either an alien’s dangerousness by clear and convincing evidence or risk of flight by a preponderance of the evidence.
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c. Conditions of Release and Ability to Pay Plaintiffs argue that due process requires an immigration court consider both an alien’s ability to pay in setting the bond amount and alternative conditions of release, such as GPS monitoring, that reasonably assure the safety of the community and the alien’s future appearances. This is what the Court held in Reid with respect to bond hearings for aliens detained under § 1226(c). 309 F. Supp. 3d at 225. The Court now holds that this requirement applies equally in 1226(a) bond hearings. This requirement ensures that the decision to continue detention of an alien is reasonably related to the Government’s interest in protecting the public and assuring appearances at future proceedings.2 See Hernandez v. Sessions, 872 F.3d 976, 1000 (9th Cir. 2017) (requiring ICE and immigration judges consider alternative conditions of release and ability to pay in setting bond amounts for aliens detained under § 1226(a)); Abdi v. Nielsen, 287 F. Supp. 3d 327, 338 (W.D.N.Y. 2018) (requiring same for arriving aliens detained under 8 U.S.C. § 1225(b)). III. The APA Claim Plaintiffs contend that the allocation of the burden of proof to the alien in § 1226(a) bond hearings also violates the
2 Section 1226(a) authorizes an immigration court to release an alien on “bond of at least $1,500” or “conditional parole.” Plaintiffs do not challenge the statutory minimum bond amount.
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INA and APA. They advance two separate theories of why the allocation of the burden of proof to the alien in § 1226(a) bond hearings violates the APA and INA. First, they claim that because the allocation of the burden of proof is unconstitutional it also violates the INA and APA. See 5 U.S.C. § 706(2)(B) (“The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . contrary to constitutional right . . . .”). Second, they claim it is arbitrary and capricious because Adeniji reversed long-standing agency precedent placing the burden on the Government, without providing sufficient reasons for the change. See 5 U.S.C. § 706(2)(A) (“The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . .”).
As an initial matter, the APA provides Plaintiffs with a cause of action to challenge the BIA’s policy decisions regarding detention. See Judulang v. Holder, 565 U.S. 42, 52-53 (2011). APA challenges to immigration detention policies in District Court are not precluded by the zipper clause in § 1252(b)(9).3 See Aguilar v. ICE, 510 F.3d 1, 11 (1st Cir.
3 This provision consolidates and channels judicial review of orders of removal in the courts of appeal.
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2007); see also R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 186 (D.D.C. 2015) (“[A]lthough Congress has expressly limited APA review over individual deportation and exclusion orders, see 8 U.S.C. 1252(a)(5), it has never manifested an intent to require those challenging an unlawful, nationwide detention policy to seek relief through habeas rather than the APA.” (citation omitted)).
Because the Court has already concluded that the BIA’s policy of placing the burden of proof on the alien in § 1226(a) bond hearings is unconstitutional, the Court also holds that the BIA policy is a violation of the APA. See Atterbury v. U.S. Marshals Serv., 941 F.3d 56, 62 (2d Cir. 2019) (recognizing APA claim under § 706(2)(B) for violation of due process right as distinct from “free-standing constitutional claim”); Sierra Club v. Trump, 929 F.3d 670, 698 (9th Cir. 2019) (recognizing APA claim under § 706(2)(B) for violation of Appropriations Clause); Cancino Castellar v. McAleenan, 388 F. Supp. 3d 1218, 1248 (S.D. Cal. 2019) (declining to dismiss APA claim based on alleged constitutional violations in immigration detention context). Accordingly, the Court finds that the BIA policy of placing the burden of proof on the alien in § 1226(a) bond hearings violates the APA because the policy is unconstitutional.4
4 Given this ruling the Court need not address the Plaintiffs’ alternative theory under the APA.
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IV. Class Modification Plaintiffs have moved to modify the class definitions to
cover both their APA claims. “An order that grants or denies class certification may be altered or amended before final judgment.” Fed. R. Civ. P. 23(c)(1)(C). “In determining whether to do so, courts consider ‘the criteria of Rule 23(a) and (b) in light of factual and legal developments’ and if ‘the parties or the class would be unfairly prejudiced by a change in proceedings.’” Reid v. Donelan, No. CV 13-30125-PBS, 2018 WL 5269992, at *3 (D. Mass. Oct. 23, 2018) (quoting In re Harcourt Brace Jovanovich, Inc. Sec. Litig., 838 F. Supp. 109, 115 (S.D.N.Y. 1993)). Because Plaintiffs’ due process and administrative law claims are essentially co-extensive, the reasoning of the Court’s original class certification ruling applies equally to both claims. Likewise, there is no prejudice to the Government in amending the class definitions at this stage of the litigation. Accordingly, the Court modifies the definitions of the Pre-Hearing and Post-Hearing Classes to cover both of Plaintiffs’ claims. V. Remedy
Plaintiffs seek a declaratory judgment setting forth the minimum procedural requirements for § 1226(a) bond hearings to satisfy the Due Process Clause. They also seek an injunction ordering the Government to comply with these procedures in all
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future bond hearings. For the Post-Hearing Class only, Plaintiffs request an injunction ordering the Government provide new bond hearings to class members who were prejudiced by the constitutional deficiencies of their original bond hearings. They also request the Court to order the Government to take additional steps to facilitate the process of providing class members with new bond hearings.
a. Jurisdiction The Government renews its argument from class certification that 8 U.S.C. § 1252(f)(1) deprives the Court of jurisdiction to issue the classwide declaratory and injunctive relief sought by Plaintiffs. Section 1252(f)(1) strips the lower courts of jurisdiction “to enjoin or restrain the operation of” certain provisions of the INA on a classwide basis. See Hamama v. Adducci, 912 F.3d 869, 879-80 (6th Cir, 2018) (noting that the “practical effect of a grant of declaratory relief as to Petitioners’ detention would be a class-wide injunction against the detention provisions”). Yet a majority of the Supreme Court recently indicated that Section 1252(f)(1) does not extend to declaratory relief. Three justices in Nielsen v. Preap, 139 S. Ct. 954, 962 (2019) (opinion of Alito, J.), stated that a district court has jurisdiction to entertain a request for declaratory relief consistent with § 1252(f)(1), adding their
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voices to the three other justices who said the same in Jennings, 138 S. Ct. at 875 (Breyer, J., dissenting).
Whether the Court has jurisdiction to issue injunctive relief is a closer question. Section 1226 does not provide the procedural requirements for bond hearings. See 8 U.S.C. § 1226. Instead, the procedural rules followed by immigration courts come from BIA precedential decisions, which are not construing language in the statute. See Reid, 390 F. Supp. 3d at 223 & n.7. To be sure, the requested injunction requires the Government to follow certain constitutionally mandated due process procedures at bond hearings, but it does not mandate the release of any class members nor does it allow an opportunity for release not already provided by the statute. Cf. Hamama, 912 F.3d at 879-80 (finding district court lacked jurisdiction to enter injunction ordering release of detainees unless they were provided bond hearings not required by statute). Therefore, the Court concludes Section 1252(f)(1) is inapplicable because the proposed injunction does not “enjoin or restrict” the operation of the INA.
b. Injunctive Relief A court may issue a permanent injunction if “(1) plaintiffs prevail on the merits; (2) plaintiffs would suffer irreparable injury in the absence of injunctive relief; (3) the harm to plaintiffs would outweigh the harm the defendant would suffer
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from the imposition of an injunction; and (4) the public interest would not be adversely affected by an injunction.” Healey v. Spencer, 765 F.3d 65, 74 (1st Cir. 2014).
As discussed above, the Court finds that Plaintiffs prevail on both their constitutional and administrative law claims. Since these claims challenge the Government’s immigration detention procedures, in the absence of an injunction, there is a risk irreparable of harm because the class members who have no or little criminal history face a loss of their liberty by incarceration in jail for months and sometimes years. See Ferrara v. United States, 370 F. Supp. 2d 351, 360 (D. Mass. 2005) (“Obviously, the loss of liberty is a . . . severe form of irreparable injury.”). The first two permanent injunction factors therefore are satisfied.
The Government contends that the third and fourth factors cannot be satisfied. First, the Government argues that the proposed injunction would adversely affect the public interest because it is contrary to congressional intent. This is wholly unpersuasive. Although the statute does state that “an alien may be . . . detained,” 8 U.S.C. § 1226(a), § 1226 is silent on the procedures applicable in immigration bond hearings. Cf. Zadvydas v. Davis, 533 U.S. 678, 697 (2001) (“[W]hile ‘may’ suggests discretion, it does not necessarily suggest unlimited discretion.”). In any case, requiring the Government to obey the
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Constitution in its administration of immigration detention supports the public interest. See Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005) (“[P]ublic interest concerns are implicated when a constitutional right has been violated, because all citizens have a stake in upholding the Constitution.”).
Second, the Government argues that the proposed injunction would impose a severe administrative burden, which tips the balance of interests in its favor. It asserts that the immigration court system is already backlogged and overburdened. Yet the Government does not explain how the proposed procedures for the Pre-Hearing Class will worsen this supposed backlog. 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. As discussed below, while members of the PostHearing Class will be entitled to new bond hearings if they can show they were prejudiced by the constitutional defects in their original hearing, whether or not new hearings are in fact appropriate will be decided through separate habeas actions.
c. Post-Hearing Relief The parties’ primary dispute concerning the scope of the injunctive relief concerns the Post-Hearing Class. Plaintiffs request that the Court order the Government to provide for each
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class member: (i) the name and A-number; (ii) the current location; (iii) the date the current period of detention began, (iv) the name of the person’s counsel in immigration court, if any, (v) a statement of whether the Government intends to dispute prejudice as to that person, and if so, a brief explanation of the good faith basis for such dispute, and (vi) a statement of whether a new bond hearing has taken place after the date of the Court’s judgment and, if so, the outcome.
Some of the Plaintiffs’ requests are reasonable and appropriate. The Government must provide class counsel with basic information regarding the Post-Hearing Class members whom it is currently detaining (i.e., name, location, detention date, counsel information, bond hearing dates). This information should be readily accessible to the Government and, in some cases, the information will be within its exclusive control. The sticking point is Plaintiffs’ request that the Government also provide for each Post-Hearing Class member a statement of whether it intends to contest prejudice in a subsequent habeas action and its good faith basis for contesting prejudice. This proposed relief would be unduly burdensome for the Government because Plaintiffs allege, and the Government does not dispute, that since November 2018 hundreds of aliens have been denied bond. As the Court already explained in its class certification opinion, members of the Post-Hearing Class will have to litigate
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prejudice through individual habeas petitions. The Government does not have to take a position on prejudice with respect to individual class members before any habeas petitions are filed.
ORDER For the foregoing reasons, Plaintiffs’ motion for summary judgment (Dkt. No. 67) and motion to modify the class definitions (Dkt. No. 72) are ALLOWED. Plaintiffs’ request for declaratory and injunctive relief is ALLOWED IN PART and DENIED IN PART.
DECLARATORY JUDGMENT (BOTH CLASSES) The Court declares that aliens detained pursuant to 8 U.S.C. § 1226(a) are entitled to receive a bond hearing at which the Government must prove the alien is either dangerous by clear and convincing evidence or a risk of flight by a preponderance of the evidence and that no condition or combination of conditions will reasonably assure the alien’s future appearance and the safety of the community. At the bond hearing, the immigration judge must evaluate the alien’s ability to pay in setting bond above $1,500 and must consider alternative conditions of release, such as GPS monitoring, that reasonably assure the safety of the community and the alien’s future appearances.
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Case 1:19-cv-11314-PBS Document 88 Filed 11/27/19 Page 23 of 23
PERMANENT INJUNCTION (BOTH CLASSES) The Court orders that immigration courts shall follow the requirements set forth in the above declaration, effective December 13, 2019. The Court orders that the Government shall provide this declaratory judgment and permanent injunction to all members of both classes by December 13, 2019 and to all new members of the Pre-Hearing Class once ICE makes the initial determination to detain them pursuant to 8 U.S.C. § 1226(a). The Government shall file a certification that this has occurred by December 16, 2019.
PERMANENT INJUNCTION (POST-HEARING CLASS ONLY) The Court orders that the Government shall provide class counsel with the following information for each member of the Post-Hearing Class by January 3, 2020: (1) the name; (2) the current location; (3) the date the current period of detention began, (4) the name of the class member’s counsel in immigration court, if any, and; (5) a statement of whether a new bond hearing has taken place after the date of this order and, if so, the outcome. The Government also shall file with the Court a copy of this information. SO ORDERED.
/s/ PATTI B. SARIS Hon. Patti B. Saris Chief United States District Judge
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