Immigration Courts Are 'Ignoring The Law,' Mass. Judge Says

(August 5, 2019, 3:55 PM EDT) -- Immigration judges around the United States appear to be ignoring federal court rulings that say the government should bear the burden of proof at civil detention hearings, the chief federal judge for the District of Massachusetts said Monday as she considered a proposed class action on the issue.

U.S. District Judge Patti B. Saris said she planned to certify a class of Massachusetts detainees who, according to a lawsuit filed in June, have had their due process rights violated at hearings that place the burden on the detainees to prove that they pose no danger to society or flight risk. The judge said she and other federal judges nationwide have almost uniformly ruled that the burden should lie with the government to justify detention, but new cases continue to be filed alleging that those rulings are being flouted.

"As far as I can tell, the immigration judges are simply ignoring the law," Judge Saris said. "I'm sort of worried that the court is just being ignored — not just me, but other judges. That's my concern."

An attorney for the federal government, Huy Le of the U.S. Department of Justice, said he understood Judge Saris' past rulings but balked at the judge's suggestion that the government should stipulate that all immigration judges ought to abide by them.

"The government is not in any position to stipulate that," Le said. "That is way above my pay grade, your honor," he added to laughter from the gallery.

Ultimately, Judge Saris said she hopes the case will head to the First Circuit on appeal for combined adjudication with similar cases, including Doe v. Tompkins , an individual petition she ruled on in February that is now before the appellate court.

"My goal is to have this all before the First Circuit," she said. "It's gonna be a huge decision for them."

In the lawsuit before Judge Saris now, the three named petitioners — Gilberto Pereira Brito, Florentin Avila Lucas and Jacky Celicourt have all been released from detention on bond since the case was filed, with U.S. Immigration and Customs Enforcement saying it revisited their cases. But an attorney for the petitioners, Andrew Nathanson of Mintz Levin, said Monday that they should still represent the proposed class.

"They have a live and ongoing interest in the resolution of this," Nathanson said. "They're subject to rearrest. They are still members of the class."

Judge Saris said she was "very likely" to grant class certification in the coming weeks, but raised procedural questions about the best way to do so. Rather than certifying a single class, she said, she could create one class of detainees who have already had bond hearings and another — or a "subclass" — of detainees who have not yet had the hearings. 

Requiring the government to carry the burden of proof in future cases would be "pretty easy," the judge said, but revisiting the approximately 150 cases in which detainees were already denied their release and remain in ICE custody presents a "more complicated situation" and could tax government resources.

The judge also had more technical concerns, asking the petitioners to file either a motion for preliminary injunction or a motion for judgment on the pleadings, rather than the motion they filed for final judgment, which she said was premature. First, the government will have 30 days to respond to the original lawsuit after missing an initial 60-day deadline.

The bond hearings at issue are conducted in immigration courts for detainees whom the government says should be deported, but who have not yet received a final order of removal. According to the suit, ICE often holds undocumented immigrants in jail without any hearing, but this lawsuit focuses on the hearings that some detainees are granted before an immigration judge.

"I think it's deeply concerning that the government has now been told by multiple courts across the country, including in Massachusetts, New York, New Hampshire and Colorado, that this practice of locking people up without showing a reason is unlawful," Dan McFadden of the American Civil Liberties Union of Massachusetts told reporters after Monday's hearing. "And yet the government persists in continuing with this unlawful course of conduct, and it separates people from their families and from their homes, and we're hoping to correct that."

Representatives for the government did not immediately respond to a request for comment.

Last month in a different case, Reid v. Donelan , Judge Saris ruled that immigration authorities detaining people without a bond hearing violates due process when that detention is "unreasonably prolonged," though she declined to impose a bright-line definition at six months.

The petitioners are represented by Adriana Lafaille, Daniel L. McFadden and Matthew Segal of the ACLU of Massachusetts, Gilles Bissonnette, Henry Klementowicz and SangYeob Kim of the ACLU of New Hampshire, and Susan M. Finegan, Susan Cohen, Andrew Nathanson, Mathilda S. McGee-Tubb and Ryan Dougherty of Mintz Levin Cohn Ferris Glovsky and Popeo PC.

The government is represented by Huy Le of the U.S. Department of Justice, Carlton F. Sheffield and J. Max Weintraub of the DOJ's Office of Immigration Litigation, and Rayford A. Farquhar of the U.S. Attorney's Office for the District of Massachusetts.

The case is Brito et al. v. Barr et al., case number 1:19-cv-11314, in the U.S. District Court for the District of Massachusetts.

--Editing by John Campbell.

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