In June of 2019, the ACLU of New Hampshire, together with the ACLU of Massachusetts, filed a class action lawsuit challenging the government’s practice of denying due process to detained immigrants. The lawsuit has been filed on behalf of immigrants who are currently jailed due to flawed detention hearings in which the detainee was required to bear the burden of proof. The named plaintiffs in the case include a Massachusetts man who lives with his U.S. citizen wife and three young children, a New Hampshire dairy farmer, and a New Hampshire man who fled Haiti to escape political violence.
The government’s practice runs contrary to multiple federal court decisions holding that such a procedure is unlawful. Under the U.S. Constitution, the government cannot take away any person’s liberty without showing that is necessary to do so. During immigration proceedings, however, U.S. Immigration and Customs Enforcement (ICE) routinely holds people in jail for long periods of time without ever being required to make such a showing. Instead, immigrants are jailed until they can prove that they should not be detained by showing that they are not a danger and not a flight risk. The result is a vast civil detention apparatus for people who are merely accused of being subject to deportation and who often have lawful pathways to remain in the United States. The ACLU argues that without class-wide relief, the government will continue to deny fundamental due process to immigrants detained in Massachusetts and New Hampshire receiving a bond hearing in the Boston immigration court
On August 6, 2019, a federal judge certified the ACLU’s case as a class action lawsuit. As a result, the court can ensure due process for potentially thousands of current and future detainees in New England. A federal judge ruled in November 2019 that the government’s practice of detaining certain immigrants by default violates both due process and the Administrative Procedure Act. The ruling holds that class members in New England are entitled to bond hearings at which the government bears the burden of justifying an immigrant’s detention, and at which the immigration court must consider someone’s ability to pay when setting a bond amount. The government then appealed this case to the First Circuit. On September 18, 2020, the ACLU filed their First Circuit brief.
On December 28, 2021, the First Circuit affirmed the district court's declaration that noncitizens "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."