Immigration Detention

Immigration DetentionImmigration 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.

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.

CBP Releases Statistics On Numbers of Individuals Apprehended or Deemed Inadmissible Along the Southwest Border in March 2017

On April 5, 2017, the United States Customs and Border Protection (CBP) published its border apprehension statistics along the Southwest border for March of 2017. In this post, we will look at some of the specific numbers and charts provided by the DHS.

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.