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.
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.”
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.
538 U.S. 510 (2003) Demore, district director, san francisco district of immigration and naturalization service, et al.v.kim. 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.
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).
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.
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.