13 Former IJs and BIA Members Write Letter to DHS Concerning Immigration Detention

Thirteen former Immigration Judges (IJs) and members of the Board of Immigration Appeals (BIA) wrote a letter to the Secretary of the Department of Homeland Security (DHS), Jeh Johnson, stating concerns with regard to the current immigration detention system and policies. The letter does not only include critiques of the problems, but also proposes remedies. In this article, we will briefly examine the criticisms and proposed solutions included in the letter.

See the full letter [link] (AILA Doc. No. 16112030 (posted on 11/2/16)).

1. Overview of the Main Issue

The writers of the letter express the concern that, based upon their experience, they believe that expansion of immigration detention “comes at the expense of basic rights and due process.” Citing to a recent Wall Street Journal article, the letter explains that the United States will soon detain 45,000 individuals on a daily basis [link].¹ Furthermore, these individuals in immigration detention are detained “in a sprawling network of immigration detention facilities largely operated by private prison companies and local jails.”

2. Lack of Access to Counsel for Individuals in Immigration Detention

The letter cites to a recent study that indicated that 86% of individuals in immigration detention are unable to obtain legal representation. Citing to the same study, the letter explains that an individual in detention who is represented by an attorney is twice as likely to secure immigration relief than an individual without an attorney. The letter expresses the concern that increasing the use of immigration detention will only exacerbate this disparity.

To alleviate this issue, the letter proposes various ideas for reducing the numbers of individuals in detention that we will examine in the subsequent sections. The letter advises the DHS to not enter into new contracts with detention facilities or renew existing contracts “without a thorough assessment of the viability and proximity of access to legal services.

3. Many Southern Border Crosses Merit Relief Under Refugee Laws

The letter explains that many individuals who are crossing the southwest border illegally are fleeing from violence and merit asylum protection under the immigration laws [see blog]. The letter adds the caveat that these individuals are likely to establish eligibility for asylum only “if they are properly represented and able to cogently present and document their claims.”

Nevertheless, the letter cites to statistics indicating that between 11,000 and 15,000 families and asylum seekers entering via the southern border are held in Immigration and Customs Enforcement (ICE) detention each day. In fact, such individuals are prioritized for detention under the DHS's current civil enforcement priorities [see article]. Despite immigration detention being civil in nature, the letter argues that “ICE detention facilities are jail-like facilities operated by private prison companies or local jails contracting with the ICE.” The letter cities to a recent study indicating that many immigration detention facilities are substandard, and that DHS officials have expressed concerns that the standards of many of the facilities do not meet the requirements of the Prison Rape Elimination Act. It takes the position that immigration detention endangers already vulnerable individuals and families who came to the United States to escape violence in their homelands.

The letter proposes three ideas for alleviating the issues expressed in this section. First, it recommends ending family detention, a proposal that has already been recommended by the ICE's Advisory Committee on Family Residential Centers [PDF version]. Second, it recommends ending the mass detention of those seeking asylum by with regular removal proceedings and by properly implementing the ICE's 2009 Parole Directive. Finally, the letter supports a recommendation by United States Senator Patrick Leahy to grant Temporary Protected Status (TPS) [see article] to individuals from the Northern Triangle and Haiti who “have fled deteriorating conditions in their home countries.”

4. Permit IJs to Make Individualized Assessments of the Propriety of Continued Detention

The letter takes the position that IJs should be given the authority to make individualized assessments on whether an individual merits detention. It states that in 2015, 86% of individuals who were released from custody on bond set by an Immigration Court appeared at their subsequent hearings. However, despite the strong evidence indicating that IJs make sound judgments regarding bond determinations, only about half of the individuals in detention in 2015 received a bond hearing before an IJ. The letter attributes this to the “DHS's overly aggressive use of expedited removal [see article] procedures and harsh implementation of the federal detention statute.”

The letter includes two recommendations for increasing the number of bond hearings for individuals in immigration detention. Firstly, it urges the DHS to follow recent federal court decisions that interpret the Immigration and Nationality Act (INA) as requiring individualized custody determinations for those who are placed in detention for long periods. The letter cites to the Second Circuit decision in Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015) [PDF version], and the Ninth Circuit decision in Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015) [PDF version]. Secondly, the letter proposes reconsidering certain aspects of the mandatory detention provision found in section 236(c) of the INA. The letter recommends that individuals subject to section 236(c) be permitted to be released on restrictive forms of custody short of detention. Furthermore, the letter recommends that 236(c) be limited to apply only to those apprehended by the ICE at the time of release from criminal custody on the basis of a serious criminal conviction.

Signatories

The letter is signed by ten former IJs and three former members of the BIA.

The former IJs who signed the letter are the Honorable: Sarah Burr, Bruse J. Einhorn, Christopher Grant, Gilbert T. “Thad” Gembaz, John F. Gossart, William Joyce, Eliza Klein, Pedro Miranda, and Bruce Solow.

The former members of the Board who signed the letter are the Hhonorable: Lory Rosenberg, Paul Wickham Schmidt, and Gustavo Villageliu.

We discuss one of Judge Rosenberg's most notable pieces of writing on site: her dissenting opinion in the Matter of Cervantes, 22 I&N Dec. 560 (BIA 1999) [PDF version] [see article].

Conclusion

The letter highlights many crucial concerns regarding the current state of the immigration detention system, and how those issues may be exacerbated by an influx of new detainees. To be sure, it is imperative that the immigration laws be properly enforced [see blog]. However, enforcement cannot come at the expense of ensuring that all persons subject to U.S. laws, regardless of immigration status, are treated humanely and afforded the access to legal resources that they are entitled to under our laws. Accordingly, the issues raised and solutions offered by the former IJs and Board members in their letter have merit and should be considered by officials at the DHS.

Although relief is never guaranteed, the letter explains how individuals in immigration detention with effective legal representation are far more likely to secure immigration relief than those who lack such counsel. It is imperative for an individual subject to immigration detention to seek legal representation immediately for a full assessment of his or her specific situation. To learn about more issues involving immigration detention, please see the Immigration Detention category on our website [see category].

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1. Barrett, Devlin, “Record Immigrant Numbers Force Homeland Security to Search for New Jail Space,” wsj.com. (Oct. 21, 2016)