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BRITO v. GARLAND

Nos. 20-1037, 20-1119.

22 F.4th 240 (2021)

Gilberto Pereira BRITO, individually and on behalf of all those similarly situated; Florentin Avila Lucas, individually and on behalf of all those similarly situated; Jacky Celicourt, individually and on behalf of all those similarly situated, Petitioners, Appellants/Cross-Appellees, v. Merrick B. GARLAND, Attorney General, U.S. Department of Justice; Timothy S. Robbins, Acting Field Office Director, Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement; Tae D. Johnson, Acting Director, U.S. Immigration and Customs Enforcement; Alejandro Mayorkas, Secretary, U.S. Department of Homeland Security; Jean F. King, 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 Corrections; Steven J. Souza, Superintendent of the Bristol County House of Corrections; Christopher Brackett, Superintendent of the Strafford County Department of Corrections; Lori Streeter, Superintendent of the Franklin County House of Corrections, Respondents, Appellees/Cross-Appellants.

United States Court of Appeals, First Circuit.

December 28, 2021.

Attorney(s) appearing for the Case

Daniel McFadden , with whom Matthew R. Segal , Adrian Lafaille , American Civil Liberties Union Foundation of Massachusetts, Inc., Gilles R. Bissonnette , Henry R. Klementowicz , SangYeob Kim , American Civil Liberties Union Foundation of New Hampshire, New Hampshire Immigrants' Rights Project, Michael K. T. Tan , ACLU Foundation Immigrants' Rights Project, Susan M. Finegan , Susan J. Cohen , Andrew Nathanson , Mathilda S. McGeeTubb , Ryan Dougherty , and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. were on brief, for Appellants/Cross-Appellees.

Maura Healey , Attorney General of Massachusetts, Amanda Hainsworth , Assistant Attorney General, Civil Rights Division, Mark R. Herring , Attorney General of Virginia, William Tong , Attorney General of Connecticut, Claire Kindall , Solicitor General of Connecticut, Joshua Perry , Special Counsel for Civil Rights, Xavier Becerra , Attorney General of California, Kathleen Jennings , Attorney General of Delaware, Clare E. Connors , Attorney General of Hawai'i, Kwame Raoul , Attorney General of Illinois, Aaron M. Frey , Attorney General of Maine, Brian E. Frosh , Attorney General of Maryland, Dana Nessel , Attorney General of Michigan, Keith Ellison , Attorney General of Minnesota, Aaron D. Ford , Attorney General of Nevada, Gurbir S. Grewal , Attorney General of New Jersey, Hector Balderas , Attorney General of New Mexico, Letitia James , Attorney General of New York, Ellen F. Rosenblum , Attorney General of Oregon, Peter F. Neronha , Attorney General of Rhode Island, Thomas J. Donavan, Jr. , Attorney General of Vermont, Robert W. Ferguson , Attorney General of Washington, and Karl A. Racine , Attorney General for the District of Columbia, on brief for the Commonwealths of Massachusetts and Virginia, the States of Connecticut, California, Delaware, Hawai'i, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington, and the District of Columbia, amici curiae.

Benjamin Casper Sanchez , Mimi Alworth , Valkyrie Jensen , Mengying Yao , and James H. Binger Center for New Americans, University of Minnesota Law School on brief for American Immigration Lawyers Association, amicus curiae.

Dayna J. Zolle , Elizabeth B. Wydra , Brianne J. Gorod , and Brian R. Frazelle , on brief for Constitutional Accountability Center, amicus curiae.

Huy M. Le , Trial Attorney, Office of Immigration Litigation, with whom Ethan P. Davis , Acting Assistant Attorney General, Civil Division, William C. Peachey , Director, District Court Section, Office of Immigration Litigation, Elianis N. Pérez , Assistant Director, C. Frederick Sheffield , Senior Litigation Counsel, and J. Max Weintraub , Senior Litigation Counsel, were on brief, for Appellees/Cross-Appellants.

Before Lynch, Lipez, and Kayatta, Circuit Judges.

This class action presents a due process challenge to the bond procedures used to detain noncitizens during the pendency of removal proceedings under 8 U.S.C. § 1226(a), the discretionary immigration detention provision. In light of our recent decision in Hernandez-Lara v. Lyons

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