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The American Civil Liberties Union: Misstating the Law and Misleading the Public

The opinions expressed by columnists are their own and do not necessarily represent the views of

The American Civil Liberties Union (ACLU) has a disturbing habit of trying to nullify the will of American voters by seeking out activist judges willing to overturn firmly settled points of law. And the organization is at it again in the Commonwealth of Massachusetts.


Under the guise of preserving the “rights” of illegal aliens, the ACLU has filed suit against the Department of Homeland Security in a Boston federal court. The complaint alleges that denying bail to illegal aliens detained by U.S. Immigration and Customs Enforcement (ICE) is “fundamentally unconstitutional.” 

The suit was filed on behalf of Gilberto Pereira Brito, a criminal illegal alien, and two other illegals, who were all, at some point, detained by ICE without bond (“bond” is the immigration term for bail).

While ACLU attorneys regularly file lawsuits that misstate immigration law, this one pushes the limits, even for an organization dedicated to open borders.

It’s based on an absurd legal theory – that someone who has no right to be in the United States still has a constitutional right to be free from detention while removal proceedings are pending. That’s like arguing that I have a right to continue using the car I stole until such time as I am convicted of grand theft auto.

But the ACLU is also deliberately confounding criminal and civil law standards in order to create the false impression that aliens in removal proceedings are entitled to exactly the same due process protections as defendants in criminal proceedings. They aren’t.


Criminal law is intended to protect the public from harm. When an individual is convicted of a crime he/she is sentenced to prison, fines or possibly execution as a means of punishment for past acts. Accordingly, the rules governing criminal proceedings are tilted in favor of the defendant, whose fundamental rights to life, liberty and property are at stake.

Civil law concerns itself solely with obligations owed by one party to another, based on their relationship to each other (e.g., buyer vs. seller, property owner vs. trespasser, etc.). The objective of a civil proceeding is not punishment. Civil courts enforce the requirements that come with legal relationships (e.g.,delivery of goods purchased, payment of rent, etc.). As a result, the rules governing civil proceedings tilt toward the party to whom a duty is owed.

Immigration proceedings are civil, not criminal. They are, in essence, a civil eviction proceeding, whereby the landlord (the United States) obtains a court order throwing out a squatter (the immigration violator). Foreigners possess no fundamental right to enter or remain in the United States. Accordingly, the due process requirements are substantially lower than for criminal proceedings. And immigration law-breakers may be deported following a relatively simple hearing that provides the alien with an opportunity to try and refute the government’s allegations.


Criminal defendants are entitled to bail – unless they are a flight risk or a danger to the community – because it’s unconstitutional to punish someone for crime unless he/she has been convicted. But aliens in civil removal proceedings are not subject to punitive imprisonment - the government detains immigration violators solely to keep track of them, since they have a vested interest in avoiding deportation. Therefore, they are not entitled to bail. And ICE has broad discretion to keep immigration violators in civil custody or release them on bond, as it sees fit.

Twenty-five years ago, the Supreme Court of the United States (SCOTUS) unequivocally affirmed these very points in INS v. Lopez-Mendoza stating, “A deportation proceeding is a purely civil action to determine a person's eligibility to remain in this country. The purpose of deportation is not to punish past transgressions, but rather to put an end to a continuing violation of the immigration laws. Consistent with the civil nature of a deportation proceeding, various protections that apply in the context of a criminal trial do not apply in a deportation hearing.”

So, why is the ACLU still attempting to argue otherwise? Because it isn’t interested in what the law actually says. It’s only interested in using the law as a tool to impose its anti-Trump, open-borders agenda on regular Americans who have repeatedly voted in favor of border security and tighter immigration laws. The only question is, will the courts become a willing aider and abettor in the ACLU’s efforts to subvert American federalism by judicial fiat? Only time will tell.


Matt O’Brien is the Director of Research at the Federation for Immigration Reform. He is a former trial attorney with U.S. Immigration and Customs Enforcement and a former senior manager in U.S. Citizenship and Immigration Services’ Fraud Detection and National Security Directorate.

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