Immigration Detention

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.

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.

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.

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.

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.

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.

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.”

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.

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.

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.

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.

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.

On October 12, 2018, the Attorney General issued a published decision in Matter of M-S-, 27 I&N Dec. 476 (A.G. 2018). In Matter of M-S-, the Attorney General referred an unpublished decision of the BIA to himself for review concerning the authority of immigration judges to hold bond hearings for certain aliens screened from expedited removal under section 235(b)(1) of the Immigration and Nationality Act (INA). The Attorney General had referred the same issue to himself for review in a different case, Matter of M-G-G-, 27 I&N Dec. 469 (A.G. 2018). However, also on October 12, 2018, the Attorney General decided to not review that case because the respondent had been removed to Guatemala. Thus, the Attorney General referred Matter of M-S- to himself in order that he could review the issue in a case in which it was still live.

In a significant decision, the Supreme Court of New York, Appellate Division, Second Judicial Department, held that local law enforcement in its jurisdiction could not lawfully keep aliens in custody solely in relation to a detainer request from the Department of Homeland Security (DHS). The decision by the Second Department, an intermediate appellate court, is titled People ex rel. Wells v. DeMarco, —- N.Y.S. 3d —— (N.Y. App. Div. 2d Dept. Nov. 14, 2018).

The Attorney General held that an alien who is transferred from expedited removal proceedings to regular section 240 removal proceedings after establishing a credible fear of persecution or torture is ineligible for release on bond. As a result, such aliens must be detained until the conclusion of removal proceedings, unless the Department of Homeland Security (DHS) grants parole. The Attorney General overturned the contrary precedent decision of the Board of Immigration Appeals (BIA) in the Matter of X-K-, 23 I&N Dec. 731 (BIA 2005). Matter of M-S- relied substantially on the Supreme Court’s recent decision addressing mandatory detention in Jennings v. Rodriguez, 138 S.Ct. 830 (2018).

In this article, we will examine the legal basis for the Migrant Protection Protocols, the implementation of the policy, and what the policy means for affected aliens who cross the Southwest Border from Mexico. The Migrant Protection Protocols is also commonly known as the “Return to Mexico Policy.”

Matter of R-A-V-P-, 27 I&N Dec. 803 (BIA 2020) concerns custody redeterminations for aliens with pending asylum applications. The Board held in Matter of R-A-V-P- that the immigration judge had correctly denied the alien respondent’s request for custody redetermination because the alien respondent presented a flight risk because he had no family, employment, or community ties, and no probable path to obtain lawful status.