Immigration Detention

Immigration detention is a form of taking into custody of individuals who are not citizens of the United States, suspected or charged with immigration violations. In essence, it is the only form of liberty restriction in the USA imposed by an inherently civil branch of the U.S. jurisprudence, or so immigration law is identified by Congress. According to the AACLU” Immigration Detention in the United States has reached crisis proportions.” In 2011 alone, the Department of Homeland Security (DHS) detained and or held detained 429,000 noncitizens in over 250 facilities nationwide. Many were held for long detention terms and in violation of the U.S. Constitution. AACLU reports that today’s daily capacity of ICE detention facilities nationwide stands at 33,400 beds, “even though, in the overwhelming majority of cases, detention is not necessary to effect deportations and does not make us any safer.”

Immigration Detention

AACLUE further reports that there are survivors of torture and degrading treatment among those unnecessarily locked up as well as “asylum seekers, victims of trafficking, families with small children, the elderly, individuals with serious medical and mental health conditions, and lawful permanent residents with longstanding family and community ties who are facing deportation because of old or minor crimes.” According to the NGO, contemporary ICE detention operation represents a “massive waste of taxpayer dollars, costing $122 to $164 to hold a detainee each day, or $2 billion a year” and exposes detainees to manifold abuses in this Federal detention.

Immigration Detention Defense

When a noncitizen ends up in the custody of the U.S. Immigration and Customs Enforcement (ICE) – a sub-department at the U.S. Department of Homeland Security (DHS), charged with the primary responsibility of enforcing U.S. immigration laws, he or she is normally housed (detained) at one of the ICE facilities. ICE maintains such facilities throughout the country and in two distinct ways. Some of the facilities are stand-alone jail-like dormitories maintained by private companies acting on a contract with ICE. Others are sections of local country jails with which ICE contracts to station immigration detainees. List of ICE Detention Facilities. Immigration and Nationality Act (INA) is that main law that governs immigration issues in the USA including detention in and release from ICE custody. Not all non citizens are eligible to be released from ICE custody, once detained. The decision of whether to release rests with ICE in all cases, except those where such release is prohibited by law. In those situations when such release is allowed and the noncitizen is unhappy with the initial determination made by ICE as to whether to be released on bond, the noncitizen may request that an immigration judge review ICE decision and re-determine his or her custody status. INA § 236 governs release on bond from ICE detention. This process is also known as custody redetermination hearings before an Immigration Judge. 8 C.F.R. §§ 1003.19 and 1236.1 contain federal regulations that implement the INA §236.

Demore v. Kim, 538 US 510, 123 (S. Ct. 2003)

538 U.S. 510 (2003) Demore, district director, san francisco district of immigration and naturalization service, et NO. 01-1491. SUPREME COURT OF UNITED STATES. Argued January 15, 2003. Decided April 29, 2003. Certiorari to the united states court of appeals for the ninth circuit. *511 *512 Rehnquist, C. J., delivered the opinion of the court, in which Kennedy, J., joined in full, in which Stevens, Souter, Ginsburg, and Breyer JJ., joined as to part i, and in which O'Connor, Scalia, and Thomas JJ., joined as to all but part i. Kennedy J., filed a concurring opinion, post, p. 531. O'Connor J., filed an opinion concurring in part and concurring in the judgment, in which scalia and Thomas JJ., joined, post, p. 533. Souter J., filed an opinion concurring in part and dissenting in part, in which Stevens and Ginsburg JJ., joined, post, p. 540. Breyer J., filed an opinion concurring in part and dissenting in part, post, p. 576.

Joseph Hearing

One of the most challenging obstacles for a noncitizen is seeking release from immigration detention on bond after having been placed in removal proceedings following a conviction for a crime that made him or her inadmissible or deportable or both. There are several types of convictions that make a noncitizen either inadmissible or deportable or both with convictions for a crime involving moral turpitude or aggravated felony making the situation most complicated of all. A conviction of the last two varieties often renders a noncitizen’s detention mandatory under INA §236(c). Hence, in order to be released on bond, it becomes paramount for the noncitizen to challenge the applicability of the INA §236(c) to the case at hand. It is very difficult if not impossible to mount a proper challenge of this kind successfully without thorough understanding of the law as it settled after the prominent U.S. Supreme Court decision in Demore v. Kim 538 U.S. 510 (2003).

ICE Immigration Detention Transfer Procedures

Immigrations and Customs Enforcement (ICE) has broad discretionary authority to transfer aliens in immigration detention from one detention facility to another. In this article, we will review ICE’s detainee transfer rules and procedures. We will rely on ICE documents to examine ICE’s rules for detainee transfers.

Matter of Fatahi: Determining Whether Bond Request Should be Denied for "Danger to the Community" Concerns

In the Matter of Fatahi, the Board held that when determining whether an alien should not be released on bond during removal proceedings for being a “danger to the community,” the immigration judge “should consider both direct and circumstantial evidence of dangerousness.” Furthermore, the Board held that the immigration judge should consider whether the evidence of dangerousness implicates national security considerations. In this article, we will examine the facts underlying the Matter of Fatahi, the Board’s reasoning and decision, and what the new precedent decision means going forward.

Kelly Memorandum on Expedited Removal and Immigration Detention (Trump EO)

On February 20, 2017, the Secretary of Homeland Security, John F. Kelly, issued a Department of Homeland Security (DHS) Memorandum titled “Implementing the President’s Border Security and Immigration Enforcement Improvements Policies.” In this article, we will review the guidance in the Memorandum regarding the expansion of expedited removal and new associated immigration detention policies.

SCOTUS Finds Aliens Detained after 9/11 Have No Implied Cause of Action in Suit Against Government Officials

On June 19, 2017, the Supreme Court of the United States issued a decision in Ziglar v. Abbasi, 528 U.S. __ (2017). The case concerned six alien plaintiffs who were detained in federal custody for long periods in the aftermath of the September 11, 2001, terrorist attacks, and who sought to bring suit for alleged violations of their constitutional rights by several Executive Branch officials and by the wardens at their detention facility. In so doing, they asked courts to extend the Supreme Court’s important decision in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), wherein the Court found an implied cause of action (to bring a lawsuit) against Federal Government officials for an alleged Fourth Amendment violation. Writing for an unusual 4-Justice majority, Justice Anthony Kennedy delivered the opinion of the court, rejecting the extension of Bivens to the claims involving government policy and the statutory claim. The Court remanded the respondents’ prisoner abuse claims for further consideration of the issue of the applicability of Bivens.

Matter of Siniauskas, 27 I&N Dec. 207 (BIA 2018): DUI a Significant Adverse Factor in Bond Hearings

On February 2, 2018, the Board issued a published decision in the Matter of Siniauskas, 27 I&N Dec. 207 (BIA 2018). The Board considered how to weigh whether an alien is a “danger to the community” in bond proceedings. In Matter of Siniauskas, the Board held that an Immigration Judge should consider the nature and circumstances of an alien’s criminal activity to determine if he or she is a danger to the community. It added that “family and community ties generally do not mitigate an alien’s dangerousness.” The Board also held that driving under the influence “is a significant adverse consideration in determining whether an alien is a danger to the community in bond proceedings.” In this article, we will examine the factual and procedural history of Matter of Siniauskas, the Board’s analysis and conclusions, and what the decision means going forward.

Jennings v. Rodriguez: SCOTUS Reverses 9th Circuit Decision Limiting Mandatory Detention Authority

On February 27, 2018, the Supreme Court of the United States decided an important immigration detention case, Jennings v. Rodriguez, 583 U.S. __ (2018). The Supreme Court heard the case on appeal from the decision of the United States Court of Appeals for the Ninth Circuit in Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015). The Ninth Circuit limited the amount of time aliens could be detained under sections 235(b), 236(a), and 236(c) without individualized bond hearings. To reach this result, the Ninth Circuit applied what is called the “canon of constitutional avoidance,” which entails trying to solve the case on non-constitutional grounds if the statutes permit. The Supreme Court reversed Rodriguez v. Robbins. Justice Alitio, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Neil Gorsuch, held that the Ninth Circuit misapplied the canon of constitutional avoidance. The Supreme Court majority did not reach the question of whether the detention provisions at issue where constitutional. Instead, it remanded the case to the Ninth Circuit for consideration of Rodriguez’s constitutional arguments in the first instance and also for consideration whether the Ninth Circuit had jurisdiction.

ICE Policy on Detention of Pregnant Individuals

On December 14, 2017, the U.S. Immigration and Customs Enforcement (ICE) released a new directive titled “ICE Directive 11032.3: Identification and Monitoring of Pregnant Detainees.” The new policy codifies existing ICE practices on the subject along with modifications to bring the ICE detention policies for pregnant detainees in line with the relevant directives of President Donald Trump’s January 25, 2017 Executive Order 13768, titled “Enhancing Public Safety in the Interior of the United States.” In this article, we will examine both the new ICE Directive on pregnant detainees and an associated “FAQ” published by ICE on March 29, 2018 titled “FAQs: Identification and Monitoring of Pregnant Detainees.”

President Trump Memorandum on Ending "Catch and Release" and Related Border Security Issues

On April 6, 2018, President Donald Trump issued a Presidential Memorandum for the Secretary of State, the Secretary of Defense, the Attorney General, the Secretary of Health and Human Services, and the Secretary of Homeland Security titled “Ending ‘Catch and Release’ at the Border of the United States and Directing Other Enhancements to Immigration Enforcement.” President Trump’s memorandum directs relevant officials to formulate policies for detaining, rather than releasing into the United States, removable aliens encountered near the Southwest border. In this article, we will briefly examine the new directives and what they may mean going forward.

SCOTUS Vacates Second Circuit Decision Mandating Bail Hearings for Aliens Detained Under 236(c)

On October 28, 2015, the United States Court of Appeals for the Second Circuit issued an important published decision in Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015). In the decision, the Second Circuit held that aliens subject to mandatory detention under section 236(c) of the Immigration and Nationality Act (INA) must be afforded a bail hearing before an immigration judge within six months of his or her detention. However, on February 27, 2018, the Supreme Court of the United States in Jennings v. Rodriguez, 138 S.Ct. 830 (2018), reversed the decision of the United States Court of Appeals for the Ninth Circuit that had applied a similar six-month bright line rule to section 236(c) in order to avoid the perceived constitutional questions that would arise from indefinite detention. The Government sought Supreme Court review of Lora in 2016. On March 5, 2018, just a week after the decision in Rodriguez, the Supreme Court granted certiorari over the case in Shanahan v. Lora, 128 S.Ct. 1260, U.S., Mar. 05, 2018, vacated the Second Circuit’s decision, and remanded the case to the Second Circuit for further consideration in light of Rodriguez.

Jennings v. Rodriguez: Dissenting Opinion With Constitutional Points in SCOTUS Mandatory Detention Case

On February 27, 2017, the Supreme Court of the United States issued a decision in Jennings v. Rodriguez, 583 U.S. __ (2018), a highly consequential decision in the context of mandatory detention under the Immigration and Nationality Act (INA). In Rodriguez, a 5-justice majority reversed the decision of the United States Court of Appeals for the Ninth Circuit in Rodriguez v. Robbins, 803 F.3d 1060 (9th Cir. 2015), wherein the Ninth Circuit had held that aliens subject to mandatory detention under sections 235(b) and 236(c) of the INA were entitled to periodic individualized bond hearings every six months where the government would bear the burden of establishing by the proffering of clear and convincing evidence that continued detention was necessary. In this article, we will examine the dissenting opinion authored by Justice Stephen Breyer, and joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. The dissenters would have affirmed the decision of the Ninth Circuit as a reasonable construction of the mandatory detention statutes at issue in light of the constitutional questions raised when reading the statutes as the majority did. Justice Breyer, writing for the dissent, examined constitutional questions arising from the majority's reading of the mandatory detention provisions and the Government's position, and concluded that this construction of the statutes would likely render them unconstitutional.

District Court Requires DHS To Follow 2009 Parole Directive For INA 235(b) Detainees

On July 2, 2018, Judge James E. Boasberg of the United States District Court for the District of Columbia issued a decision in Damus v. Nielsen, Case 1:18-cv-00578. Several aliens who were detained under section 235(b) of the Immigration and Nationality Act (INA) brought suit, alleging that the U.S. Immigration and Customs Enforcement (ICE) had not followed its own policy directives in considering whether they were eligible for parole. The plaintiffs sought class certification for similarly situated individuals in the jurisdiction five ICE Field Offices. In his decision, Judge Boasberg granted a preliminary injunction against the Department of Homeland Security (DHS), finding that the plaintiffs had sustained their burden of showing that ICE was not following its policy directive and that the equities weighed in favor of granting the injunction. In this article, we will briefly examine Judge Boasberg’s decision and what it will mean going forward.

Matter of M-G-G-, 27 I&N Dec. 469 (AG 2018): AG Considers Scope of Bond Hearings For Certain Aliens Who Establish Credible Fear

On September 18, 2018, U.S. Attorney General Jeff Sessions issued a published decision in Matter of M-G-G-, 27 I&N Dec. 469 (A.G. 2018). In the decision, he referred an unpublished decision of the Board of Immigration Appeals (BIA) concerning the authority to hold bond hearings for certain aliens screened for expedited removal proceedings to himself for review.