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ACLU Says Forcing Immigrants To Prove They Are Not A Danger Is Unconstitutional

These are happy days for Gilberto Pereira Brito and his family. Inside the kitchen of their Brockton apartment, his three young children climb all over him like he’s a human jungle gym. Four-year-old Taliyah’s eyes light up when she talks about the fireworks they watched together on the Fourth of July.

But just beneath the surface of this summertime revelry, Pereira Brito and his family are still coming to terms with the very recent past.

“I’m in the process with [ICE], 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,” he says.

Thirty-nine year old Pereira Brito, who was born in Brazil, says U.S. Immigration and Customs Enforcement (ICE) knew his address because he’s applying for a green card. His wife, Darcy, is a U.S. citizen, as are their three children. But more than a year after receiving federal approval to begin the process of adjusting his status, he was arrested by ICE at his home in March while his children looked on in the driveway.

Ten-year-old Tatyana remembers trying to comfort her younger sister.

“It was kind of hard because Taliyah, she would always cry when I tried to tell her. She would always say that she misses him and, um, we would say that my dad’s working because we didn’t want to make her get too sad about it.”

‘They Have To Prove A Negative’

Pereira Brito illegally crossed the border in 2005. He’s since been charged with driving infractions, including operating a car without a license and while under the influence of alcohol. Those are his only interactions with local law enforcement, according to court documents.

When he went before an immigration judge for a bond hearing, he was asked to provide proof that he’s neither a danger to the community nor a flight risk. In the criminal justice system, that burden of proof rests on the government; it needs to explain why a person should not be released on bond. But the burden is switched in  civil immigration bond hearings.

Pereira Brito’s attorney collected documents like the U.S. birth certificates of his children, proof of his wife’s disabilities which prevent her from working, and a history of his long-term residence in Brockton, all in an effort to prove his ties to the community.

That wasn’t enough.

Pereira Brito was detained without bond and spent more than three months behind bars in Plymouth County’s ICE detention unit.

Dan McFadden, a staff attorney with the ACLU of Massachusetts, says Pereira Brito’s detention was fundamentally unconstitutional.

“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’s a very good reason why that’s necessary,” he says.

On behalf of Pereira Brito and others, the ACLU recently filed a class action suit in Boston federal court against the Department of Homeland Security. The organization argues the government is constitutionally required to prove why a person should be deprived of liberty. But, the ACLU says, that’s the exact opposite of the way it works in immigration court.

“The government comes to court and the government doesn’t have to prove anything to keep that person in jail,” McFadden says. “Instead 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.”

Flipping The Burden

The ACLU argues it hasn’t always been this way. That 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.

Andrew Arthur, a former immigration judge and government attorney who now works for the Center for Immigration Studies — a group that favors less immigration — says the board’s decision makes sense.

“It is appropriate to place this burden on the alien because the alien has the most information about the alien’s case,” he says. “If an alien has entered the United States illegally, there is very little that the United States knows about that alien.”

The Executive Office for Immigration Review, the governing body of the immigration courts, wouldn’t comment on the policy citing the ACLU’s pending litigation.

Pereira Brito was voluntarily released on bond shortly after the ACLU filed the suit. He’s now home, wearing a GPS anklet while his immigration case plays out.

WBUR asked ICE to explain the timing of Pereira Brito’s release from detention. John Mohan, an ICE spokesman, said in an email that the agency doesn’t discuss specific removal arrangements out of concerns for operational security.

The two other named plaintiffs have also been released from detention in the wake of the lawsuit.

The ACLU says the class action suit could affect hundreds of people currently detained in immigration facilities in Massachusetts, including individuals processed in immigration court in Hartford, Connecticut.

The government is expected to file a response to the suit on Friday.

‘I Try To Be Strong’

Sitting in his kitchen, Pereira Brito thinks back to what it was like being jailed, seeing his kids through glass. He remembers the visit when his 4-year-old daughter told him to move out of the way so she could break the glass and take him home.

“I try in the prison to be strong to my kids and I try I don’t cry when I see them, but after they go, I just go right in my bed and cry, cry, cry,” he says, dropping his face into his palms.

Tatyana, the 10-year-old, fetches a napkin for her dad and then stands behind him, resting her head on his shoulder.

Pereira Brito is back to work as a painter and carpenter. He says he’s relieved to be able to provide for his family again.

This article was originally published on WBUR.org.

Gilberto Pereira Brito with his three children. From left to right, Junior Pereira Brito, 1, Gilberto Pereira Brito, Taliyah Pereira Brito, 4, and Tatyana Pereira Brito,10. (Jesse Costa/WBUR)
Gilberto Pereira Brito with his three children. From left to right, Junior Pereira Brito, 1, Gilberto Pereira Brito, Taliyah Pereira Brito, 4, and Tatyana Pereira Brito,10. (Jesse Costa/WBUR)

Copyright 2019 WBUR

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