Human rights council

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7 March 2008



Seventh session

Agenda item 3

Additional Briefing Materials Submitted to the

UN Special Rapporteur on the Human Rights of Migrants


I. Detention Policy and Practice

    1. Paragraph 22 – Post-Final-Order Custody Review Process

The UNSR Draft Report states that:
1. “ICE immigration enforcement authorities have failed to develop an adequate custody review procedure, and for all practical purposes have absolute discretion to determine whether a non-citizen may be released from detention.
2. Furthermore, those released from detention as a result of a post-order custody review are released under conditions of supervision, which in turn are monitored by ICE deportation officers. Again, ICE officers have absolute authority to determine whether an individual must return to custody, and no process exists to guide such a determination.
3. Given that these discretionary decisions are not subject to judicial review, current U.S. practices violate international law.”
The U.S. Government argues that:

4. The post-final-order custody review regulations set forth at 8 C.F.R. § 241.13-14 provide an adequate custody review process.

5. Although the regulations provide for no appeal of DHS post-final-order custody determinations, a non-citizen nevertheless has additional recourse in that “[t]he Post Order Custody Review process does allow for additional consideration post initial review. There are specified time periods an alien can request a custody review. Also, an alien can submit additional evidence regarding the custody decision that speak to his flight risk, ties to the community, and overall danger.”
6. “Contrary to the Report’s conclusions, most aliens who are not removed within 180 days of the entry of a final order of removal are released from immigration custody.”
7. For non-citizens who are deemed “specially dangerous,” the regulations “allow immigration judges, the Board of Immigration Appeals, and federal courts to make independent findings” as to whether a non-citizen is “specially dangerous.”1
8. ICE has authority to revoke a detainee’s release if the detainee violates the terms of release or “if the circumstances change and DRO determines there is a significant likelihood that the alien may be removed in the reasonably foreseeable future.”

Additional information provided to the UNSR
9. The post-final-order custody review process is wholly inadequate. The regulations fail to provide the procedural safeguards necessary to insure that individuals are not indefinitely detained when their removal is not reasonably foreseeable.2 Moreover, the government frequently does not comply with its own regulations.3

10. Although the regulations do permit detainees to submit written documentation in support of release, they do not provide for an in-person hearing, or an impartial adjudicator, the two most important elements of due process. Nor do they provide for a right to appointed counsel, although most detainees are unrepresented. The custody decisions are usually boilerplate and often fail even to address the evidence that was submitted.4

11. While an initial custody review decision is subject to Headquarters Review, again there is no provision for an administrative or judicial hearing or a requirement for an in-person interview.5 Thus, if DHS refuses to release a detainee through the custody review process, the only recourse is a petition for a writ of habeas corpus. In fact, pro bono legal organizations consider habeas corpus to be the most effective way to obtain release of clients6 However, habeas is not a meaningful avenue of relief given that the majority of detainees are not represented by counsel.7 See, e.g., Liu v. Chertoff, 2007 WL 2429754 (S.D. Cal. Aug. 24, 2007)(granting detained habeas petitioner’s motion for appointment of counsel in view of his likelihood of success on the merits and the complexity of legal issues involved in a habeas petition).
12. Those non-citizens who have the resources to file a petition for writ of habeas corpus in federal district court are often released from custody with no explanation from the agency shortly after filing the petition, laying bare the arbitrary nature of the agency’s detention scheme.8 See, e.g., Coulibaly v. Keisler, 2008 WL 207855 (S.D. Ala. Jan. 23, 2008)(dismissing habeas corpus petition as moot where the government released the detainee one month after he filed the petition, having detained him for over seven months after his final order of removal had issued). See also Kholyavskiy v. Schlecht, 479 F. Supp. 2d 897 (E.D. Wisc. 2007) (granting attorneys fees to detained petitioner in habeas action where the government released petitioner only after the habeas was filed).

13. Furthermore, the regulations provide that a non-citizen may be continuously detained if he or she is deemed to be failing to cooperate with removal efforts. 8 C.F.R. § 241.13. However, no meaningful procedure exists for establishing whether a non-citizen is cooperating, nor do the regulations set out a standard for what constitutes a failure to cooperate. Id. Accordingly, any non-citizen deemed as “non-cooperating” by ICE will necessarily remain in detention without any procedure underlying such a determination.9 See, e.g., Singh v. Gonzales, 448 F. Supp. 2d 1214 (2006) (ordering release of detainee who had been fully cooperating with removal efforts for nine months prior to the habeas decision, and reprimanding ICE for not following its own regulations by failing to issue a timely Notice of Failure to Comply, the Notice having been filed seventeen months after the 90 day removal period expired); Andreasyan v. Gonzales, 446 F. Supp. 2d 1186 (W.D. Wash. 2006) (detainee’s initial refusal to fill out passport application could not serve as basis for extending detention due to non-cooperation given the detainee’s eventual full cooperation and compliance).

14. The government states that “most aliens who are not removed within 180 days of the entry of a final order of removal are released from immigration custody.” While this may be true – the government provides no data in support of this assertion –a significant number indisputably are not. Among the detainees whose cases were reviewed by the OIG for the recent ICE compliance report, 43% had been in detention with a final order for more than 180 days and had not received a post-order custody review in the preceding 90 days, and 24% had not received a review in the preceding 180 days.10 Moreover, as of June 2006, 5% of all post-order immigration detainees hade been detained for over a year.11
15. Moreover, large numbers of people are detained for prolonged periods of time while they pursue judicial review of final administrative orders of removal. The government takes the position that the act of obtaining a stay of removal pending judicial review constitutes an “act to prevent removal,” therefore suspending the removal period and allowing for the detainee’s indefinite detention as long as the stay is in place. This means that people spend years in detention while pursuing bona fide claims for review of their removal orders. See FIIRP amicus brief recently submitted in 9th circuit (attached hereto).

16. As the government itself acknowledges, the only regulations that provide for any IJ and BIA review of post-final-order custody decisions are the “specially dangerous” regulations, which purport to authorize indefinite detention of “specially dangerous” non-citizens even when removal is not reasonably foreseeable. Notably, there is no authority for these regulations in the first place since the Supreme Court has held that the post-final-order detention statute does not authorize detention when removal is not reasonably foreseeable. Clark v. Martinez, 543 U.S. 371 (2005) ; see also Tran v. Mukasey, —F.3d —, 2008 WL 216409 (5th Cir. Jan. 28, 2008) (specifically striking down the “specially dangerous” regulations).

17. The government concedes that its regulations give ICE “authority to revoke the release of an alien,” but suggests that such authority is only exercised if the non-citizen (1) violates terms of release or (2) circumstances change and DRO determines that there is a significant likelihood that the alien may be removed in the reasonably foreseeable future.” However, the regulations provide no meaningful procedure by which a detainee can contest the improper revocation of release.12

    1. Paragraph 26 – Mandatory and Prolonged Detention of Arriving Aliens, Including Asylum Seekers and Refugees

The UNSR Draft Report states that:
18. Under current U.S. immigration law, individuals arriving in the United States without the necessary documents, including asylum seekers, are subject to mandatory detention.
19. Others are subject to detention as well, including lawful permanent residents convicted of crimes.
20. Detainees, including US citizens erroneously identified as non-citizens, long-time lawful permanent residents, non-citizen veterans, and other vulnerable populations, are detained for months or years without sufficient due process protections, including fair individualized assessments of the reasons for their detention.”
The U.S. Government responds that:

21. Detention of arriving aliens is mandatory for only a “limited subclass” of arriving aliens; even those aliens can be released on parole; and aliens referred to immigration courts may be released on bond or their own recognizance.

22. The government has recently issued new policy guidelines governing parole of arriving aliens found to have a credible fear of persecution.
23. While detention of criminal aliens may last for months, and in some case years, “it is incorrect to assert that ‘all of these persons are detained . . . for months [or] years.”

24. The Draft Report fails to identify specific cases to support its assertions regarding detention of U.S. citizens, who have several opportunities to establish citizenship before ICE, CIS, the immigration court, and federal court.

Additional information provided to the UNSR
25. The US Government states that “ICE recently issued new policy guidance governing the parole of arriving aliens found to have a credible fear of persecution or torture. This policy directive serves to ensure transparency, consistency, and provide quality assurance in deciding whether to release asylum seekers from immigration custody via parole[.]” See US Government Response to Paragraph 28.
26. Human Rights First recently wrote to Assistant Secretary of the Immigration and Customs Enforcement to express serious concerns about the new ICE directive. The directive rescinds guidance that provides parole should be considered for those who satisfy certain criteria (identity established, community ties, no flight risk, and not danger to the public) and replaces with directive that parole should be available in “limited circumstances.” In addition, it provides an additional level of assessment that seems to be aimed to limit parole for asylum seekers who have satisfied criteria related to their identity and lack of flight risk; and no longer provides for local detention officials to make a parole determination for asylum seekers who have completed the “credible fear” screening standard.

    27. The US Government responded that only a limited subclass of arriving aliens are subject to mandatory detention and that even this category of persons “may be paroled into the United States and released from detention as a matter of discretion.” The government also states that non-citizens referred to Immigration Court may apply for bond or be released on their own recognizance unless convicted of serious criminal offenses.

28. It is true that arriving aliens can be “paroled” out of detention, but the government takes a very restrictive view of this authority.

    29. Asylum seekers who arrive at US airports and borders are held in detention around the county. International law, however, provides for the detention of asylum seekers only “if necessary” and on “grounds prescribed by law.”

    30. The parole process for asylum seekers in the US is arbitrary and uneven. A well-recognized report issued by the US Commission on International Religious Freedom in February 2005 reflected the various release rates and found that “variations in parole rates from ICE facilities across the county are associated with factors other than the established parole criteria.” See Amnesty International USA and Human Rights First Joint Submission to the UN Special Rapporteur (available at

    31. The Immigration and Nationality Act and proceeding regulations do not limit the length of detention for asylum seekers. As a result, asylum seekers are sometimes held for many months and even years without any meaningful review process. See Amnesty International USA and Human Rights First Joint Submission to the UN Special Rapporteur (available at

    32. In addition, regulations prohibit any independent review of a custody determination that involves an “arriving alien,” even a returning lawful permanent resident. 8 C.F.R. §§ 1003.19(h)(2)(i)(B), 236.1(c)(11), 1236.1(c)(11). Such individuals remain in detention for prolonged periods of time, often years, based solely on the discretionary determination of ICE. In one case, a Sri Lankan torture victim was imprisoned for almost five years while the Government appealed repeated grants of asylum. During this process the government refused to parole him out of detention on the grounds that his release was not in the public interest. See Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006) (ordering petitioner’s release and finding no facially legitimate and bona fide reason for denial of parole).

    33. The Draft Report never intended to suggest that “all” detainees are held “for months or years.” But significant numbers are detained for such prolonged periods of time, including U.S. citizens. For examples, see attached list of a sampling of such cases; see generally Amicus Brief of the Florence Immigrant and Refugee Rights Project (FIRRP) submitted to the Ninth Circuit in several consolidated prolonged detention appeals (also attached hereto)

c. Paragraph 30 – Length of Detention for Asylum Seekers
The UNSR Draft Report states:
34. ICE reported average stay of 64 days for all migrant detainees in 2003.
35. Asylum seekers granted refugee status spend an average of 20 months in detention, with the longest period in one case being 3.5 years.
36. There are instances of individuals with final orders of removal who language in detention indefinitely.
37. Under U.S. law, migrant detainees can be indefinitely detained for national security reasons, in contravention of international standards.
The U.S. Government responds:
38. Average length of detention for detainees in ICE custody for 2003 fiscal year was 38, not 64 days.
39. The government cannot respond to SR assertions re cases of indefinite detention without identification.
40. SR neglects to mention that other countries have responsibility to accept return of their nationals
Additional information provided to the UNSR
41. It should be emphasized that, even if the average length of detention during fiscal year 2003 was 38 rather than 68 days, this is merely an average and does not change the fact that numerous immigrants are detained for prolonged periods of time.

42. As for examples, refer to the list of cases below and the other examples set forth in the FIRRP amicus brief.

43. SR does not dispute that other countries have obligation to facilitate return of their nationals; but where removal is not reasonably foreseeable, such individuals should not be subjected to indefinite detention. This is what the Supreme Court clearly held in Zadvydas v. Davis, 533 U.S. 678 (2001) and Clark v. Martinez, 543 U.S. 371 (2005).
d. Paragraph 38 – Mandatory Detention
The UNSR Draft Report states:
44. Mandatory detention deprives immigration judges – and even the DHS – of the authority to order an individual’s release even when it is clear that the individual poses not danger or flight risk that would warrant such detention.
The U.S. Government responds:
45. “[T]he limited subclass of arriving aliens subject to expedited removal may be released from custody if paroled into the United States under 8 U.S.C. Section 1182(d)(5).” Danger and flight risk, among other factors, are take into consideration in parole determinations.
Additional information provided to the UNSR
46. The Government is correct that detention of “arriving aliens” is not mandatory, since such individuals can be released on discretionary parole. In practice, however, because they are not entitled to review of their custody by an immigration judge, their detention is essentially mandatory, since it is solely within the discretion of DHS and such discretion is exercised sparingly. See, e.g.,
Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006)

47. Mandatory detention properly refers to detention pursuant to 8 U.S.C. 1226(c). For individuals subject to detention under this statute, not only is an immigration judge prohibited from ordering release of the detainee, but the DHS itself is prohibited from ordering release, even when it is undisputed that the detainee poses no danger or flight risk.

e. Paragraphs 41-42 – Post-Order Custody Review
48. The UNSR Draft Report states that some detainees “never receive notice of their 90-day or six-month custody reviews,” that others do not receive timely review, and that decisions to continue detention are often baseless. The decisions also often “ignore documentation...that proves that there is no significant likelihood of removal in the reasonably foreseeable future.”13
49. The U.S. Government responds that regulations require that detainees receive form I-229, Notice of File Review, within 60 days of the final order of removal, with certification that the form was served on the detainee. The government asserts that I-229 explains the “evidence requirements needed for consideration for release.” 14 The government also asserts that the Case Management Unit (CMU) of the Office of Detention and Removal (DRO) works to determine whether a travel document is forthcoming. If no such document is forthcoming “in the reasonable foreseeable future,” CMU will authorize release except in cases of “limited exception[s].”15 The government also criticizes the Draft Report for failing to provide any specific examples that custody review decisions “ignore documentation . . . that proves that there is no significant likelihood of removal in the reasonably foreseeable future.”16
Additional information provided to the UNSR

50. A 2007 report by the Department of Homeland Security’s Office of Inspector General (OIG) found that ICE is non-compliant with custody review regulations.

51. The OIG study found that required custody decisions “were not timely in over 19 percent of cases,” and were not even made in over 6 percent of cases that the OIG reviewed.17

52. The OIG study found that “some aliens have been suspended from the [custody] review process [based on allegations of non-cooperation] without adequately documented evidence that the alien is failing to comply with efforts to secure removal.”18
53. The OIG study also found that ICE field offices did not provide detainees with timely notice of custody reviews, information about how they can cooperate in removal efforts, nor with decisions clearly explaining why supervised release had been denied. 19

54. As for specific examples of custody review decisions that ignored evidence that removal was not reasonably foreseeable, see
: Yassir v. Ashcroft, 111 Fed. Appx. 75 (3d Cir. 2004) (ordering release of a Palestinian individual whose repatriation was impossible, and who was detained for more than four years following final order of removal, during which time he received three custody reviews, all of which refused to release him from detention). Khouzam v. Gonzales, No. 05-2443 (D. N.J. Feb. 6, 2006) (ordering release of Egyptian detainee who was detained for more than two years after final grant of protection under CAT, and for a total of seven years, based on government’s mere assertion that it was continuing to look for third countries that would accept him and also trying to negotiate a diplomatic assurance with Egypt).Yusupov v. Lowe, No. 4CV-06-1804 (M.D. Pa. Jan. 12, 2007) (ordering release of Uzbeki detainee who was held for more than a year following final grant of protection under CAT based on the government’s assertion that it was continuing to look for third countries to accept him). DHS statistics recently provided to NGOs show that as of March 2005, 962 detainees were being held more than 180 days after receiving final removal orders20

f. Paragraph 72 – Mandatory and Prolonged Detention Pending Completion of Removal Proceedings and Judicial Review
The UNSR Draft Report states:
55. Detention pending completion of removal proceedings is neither brief nor determinate; adjudication of defenses to removal can be complicated and lengthy.
56. Appeals to BIA and federal courts extend mandatory detention by months and years; a non-citizen remains subject to mandatory detention even when they win their case before an immigration judge simply upon the filing of a notice of intent to appeal by the government.
57. Often non-citizens with the most meritorious claims, and the strongest ties to the U.S., spend the longest time in detention while they fight their cases.
The U.S. Government responds:
58. Only a limited class of non-citizens are subject to mandatory detention under 8 U.S.C. Section 1226(c).
59. Mandatory detention is brief: in 85% of cases removal proceedings are completed in an average period of 47 days, and the remaining 15 percent, which involve appeals to the BIA, take on average an additional four months.
60. Mandatory detention only applies to non-citizens in administrative removal proceedings.
61. An Immigration Judge may reverse ICE’s determination that a detainee is subject to mandatory detention under 1226(c).
Additional information provided to the UNSR

62. Although mandatory detention under 1226(c) only applies to non-citizens who are charged with deportability for crimes, those crimes include relatively minor offenses. Thus, the provision applies to a large number of people, accounts for a significant percentage of detained immigrants and has helped fuel the rapid expansion of immigration detention. [[See generally the Detention Briefing paper at pp 10-12.]]

63. The statistics cited by the Government are misleading. While most people subject to mandatory detention may be detained for relatively brief periods of time, a significant number – namely those who decide to fight their cases – are subjected to detention of many months or even years. See, e.g. Tijani v. Willis 430 F.3d 1241 (9th Cir. 2005)(30 months of mandatory detention); Ly v. Hansen 351 F.3d 263 (6th Cir. 2003)(18 months mandatory detention); Fuller v. Gonzales, 2005 WL 818614 (D. Conn. April 8, 2005)(two years mandatory detention); Madrane v. Hogan, 520 F. Supp. 2d 654 (M.D. Pa. 2007) (over three years mandatory detention. See also FIRRP amicus brief attached hereto and other case examples summarized below; “The Needless Detention of Immigrants in the United States,” CLINIC, August 2000,; Brief of Amici Curiae, on behalf of Citizens and Immigrants for Equal Justice(CIEJ), et al., In the Supreme Court of the United States, Demore v. Kim, 538 U.S. 510 (2003).

64. The government’s claim that mandatory detention under 1226(c) applies only during administrative removal proceedings is beside the point. While the government maintains that detention during judicial review is governed by a different detention statute, numerous courts have found that where a stay of removal is issued pending judicial review, detention continues to be government by 1226(c). See, e.g., Fuller v. Gonzales, 2005 WL 818614 (D. Conn. April 8, 2005); Alafyouny v. Chertoff, 2006 WL 1581959 (N.D. Texas May 19, 2006) (collecting cases). But regardless of which statute governs, and whether it is technically “mandatory” or “discretionary,” such detention is prolonged since the government takes the position that an individual who has requested a stay of removal has “acted to prevent removal” and can be detained indefinitely until such judicial review is completed. See, e.g. Martinez v. Gonzales, 504 F.Supp.2d 887, 898 (C.D. Cal. 2007)(rejecting government’s position).
65. Finally, the Government makes the point that an immigration judge can reverse ICE’s determination that the mandatory detention statute applies. But this hardly solves the due process problem. It does not make the detention less “mandatory” for those individuals who are subject to the statute. It merely means that an Immigration Judge can decide if ICE is improperly applying the mandatory detention statute to a non-citizen who does not actually fall under one of the statute’s categories.21

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