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ACLU Says Burden On Immigrants To Fight For Bond Is Unconstitutional


In the criminal justice system, the government must prove to a judge why a detainee presents a flight risk or a danger to the community. In immigration court, the burden is on the immigrants. The ACLU of Massachusetts says that's unconstitutional, and it's filed suit. WBUR's Shannon Dooling has more.

SHANNON DOOLING, BYLINE: Sitting in the kitchen of their Brockton apartment south of Boston, Gilberto Pereira Brito's three young children climb all over him like he's a human jungle gym.


TALIYAH PEREIRA BRITO: And we saw fireworks, and they was like - they go, like, up and down and those colors.

DOOLING: Four-year-old Taliyah's eyes light up when she talks about the fireworks they watched together on the Fourth of July. Her sister, 10 year old Tatyana, recalls a different time just a few months earlier when federal immigration officers picked up their father.

TATYANA PEREIRA BRITO: It was kind of hard because Talia - she would always cry. She would always say that she misses him. And we would say that my dad's working because we didn't want to make her get too sad about it.

DOOLING: Thirty-nine-year-old Pereira Brito is Brazilian. He crossed the U.S.-Mexico border illegally in 2005. Now he's married to Darcy, a U.S. citizen, and he's applying for a green card, but immigration agents arrested him unexpectedly at his home in March.

GILBERTO PEREIRA BRITO: I'm in a process with them, and they're talking back and forth to us, to my lawyer. And I really don't expect them to come in my house and pick me up.

DOOLING: Pereira Brito was charged in 2007 with operating a car without a license and driving under the influence of alcohol. Those charges were eventually dismissed, and immigration officials didn't try to deport him until President Trump came into office. After his arrest, an immigration judge asked Pereira Brito to prove why he's neither a danger to the community nor a flight risk. He presented his children's U.S. birth certificates, documents to prove he's lived in Brockton for years and his wife's medical records to show why his family depends on his income as a painter and carpenter - all of this in an effort to prove his ties here. It wasn't enough. He was detained without bond.

DAN MCFADDEN: The government should not be taking people away from their families, should not be taking them away from their homes, should not be putting them in jail unless the government can show that there is a very good reason why that's necessary.

DOOLING: Dan McFadden is a staff attorney with the ACLU of Massachusetts, which recently filed a federal lawsuit on behalf of Pereira Brito and hundreds of others detained in Massachusetts.

MCFADDEN: The individual is told they have to prove that they are not a danger and not a flight risk. They have to prove a negative.

DOOLING: It hasn't always been this way. In 1999, a decision from the Board of Immigration Appeals, the highest court in the immigration system, flipped the burden in bond hearings to the detainee. And now the Trump administration says too many undocumented immigrants skip court and disappear into the country. Andrew Arthur is a former immigration judge. He's currently with the Center for Immigration Studies, which favors stricter rules for immigration. He says the burden should be on the immigrant in bond hearings.

ANDREW ARTHUR: Because the alien, of course, has the most information about the alien's case. If an alien has entered the United States illegally, there is very little that the United States knows about that alien.

DOOLING: In Pereira Brito's case, ICE reversed itself and released him on bond shortly after the ACLU filed the lawsuit. That was a few weeks before the July Fourth holiday. Now he's wearing a GPS monitor on his ankle while his immigration case plays out.

For NPR News, I'm Shannon Dooling in Boston. Transcript provided by NPR, Copyright NPR.

Shannon Dooling