§ 6.33 VII. Immigration Detention
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Immigration detention is analogous to criminal detention. The person detained may post cash or bond in the amount set by the agency or the court and obtain release just as with a criminal bond, unless the noncitizen is subject to mandatory detention. A noncitizen may be able to work with criminal defense and immigration counsel to avoid a conviction that would trigger mandatory detention. Criminal lawyers should attempt to obtain criminal dispositions that do not trigger mandatory detention, while immigration counsel can argue in immigration court that a given disposition does not do so.
Whether a noncitizen will be subject to detention and whether s/he may be released on bond or may have the DHS decision to detain reviewed by an Immigration Judge will depend upon the noncitizen’s immigration status and the ground(s) of removal to which s/he may be subject.
 ICE’s Detention Operations Manual may be viewed online at http://www.ice.gov/partners/dro/opsmanual/index.htm
 Minimum bond is set at $1,500. INA § 236(a)(2)(A), 8 U.S.C. § 1226(a)(2)(A).
 INA § § 235, 236, 236A, 8 U.S.C. § § 1225, 1226, 1226A.
DETENTION " PROLONGED DETENTION " BRIGHT LINE RULE THAT DETENTION OVER SIX MONTHS IS PRESUMPTIVELY UNREASONABLE REQUIRING A BOND HEARING
Reid v. Donelan, ___ F.Supp.2d ___, 2014 WL 105026 (D.Mass. Jan 9, 2014) (detention under INA 236(c) is presumptively unreasonable after six months; detainees entitled to bond hearing after six months has passed).
DETENTION - LIMITS ON DHS POWER TO SUBJECT NONCITIZEN TO PROLONGED MANDATORY DETENTION
Casas-Castrillion is DETENTION. ACLU Practice Advisory on Casas-Castrillion v. DHS, 535 F.3d 942 (9th Cir. 2008).
DETENTION - NONCITIZEN DETAINED UNDER REMOVAL ORDER SUBJECT TO PENDING PETITION FOR REVIEW MAY NOT BE DETAINED FOR PROLONGED AND INDEFINITE PERIOD
Prieto-Romero v. Clark, ___ F.3d ___, 2008 WL 2853396 (9th Cir. Jul. 25, 2008) (noncitizen whose removal order is administratively final, but removal is stayed pending court of appeals' resolution of petition for review, is subject to detention under 8 U.S.C. 1226(a), but not 1231(a)(2) or (a)(6) -- which only grants attorney general authority to detain aliens "during" and "beyond" their "removal period"; 1226(a) does not authorize prolonged and indefinite detention, but denial of habeas corpus petition is affirmed where the government's civil detention of LPR for over three years, was authorized by statute, while he sought administrative and judicial review of his removal order, because noncitizen still faced a significant likelihood of removal in the reasonably foreseeable future because government could repatriate alien if judicial relief were denied, thus alien's detention was not unconstitutionally indefinite).
Some implications of this decision:
1. Noncitizen detained under 236(c) fall under 236(a) once the case moved to federal judicial review (and subsequent remand), and thus can request a bond.
2. Counsel can argue that noncitizens for whom removal is not "practically attainable," including those granted relief under the Convention Against Torture are not subject event to 236(a)
3. Counsel can argue that this case trumps, in some cases, the power of USICE to stay an IJs grant of bond pending appeal.
Thanks to Kara Hartzler
DETENTION " CUSTODY DETERMINATION GUILDELINES
ICE announces enhanced oversight and release procedures for custody determinations involving detainees with criminal convictions https://www.ice.gov/news/releases/ice-announces-enhanced-oversight-and-release-procedures-custody-determinations
RESOURCES FOR NONCITIZENS IN DETENTION
The Florence project, which helps immigrants in ICE detention facilities in Florence AZ, has updated their guides to help immigrants navigate the detention facilities and address many issues. Download them for free from http://www.firrp.org/resources/prose/. Thanks to the Florence Project.
DETENTION WITHOUT BOND " PRACTICE ADVISORY
"This advisory concerns the Ninth Circuits recent decision in Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011). Diouf is the latest in a series of Ninth Circuit decisions addressing whether the government may subject individuals to immigration detention for a prolonged period of time without a bond hearing where the government must show that continued detention is justified. Diouf extends the Ninth Circuits previous decision in Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008), which held that individuals initially subject to detention under 8 U.S.C. 1226(c) are entitled to bond hearings if their removal is stayed pending direct judicial review of their removal orders or their removal cases have been remanded for further administrative proceedings. As a result of Diouf, non-citizens who have been detained for six months or longer after entry of a final order of removal under 1231 are also now entitled to a bond hearing where the government bears the burden of justifying continued detention. Furthermore, under the reasoning of another Ninth Circuit decision, Vijendra Singh v. Holder, __ F.3d ___, 2011 WL 1 226379 (9th Cir. 2011), the government should be required to show by clear and convincing evidence that detention is necessary to prevent flight and danger." http://www.aclu.org/files/assets/Diouf_Practice_Advisory.pdf
DETENTION " DETAINER LOCATOR
U.S. Immigration and Customs Enforcement (ICE) announced the launch of ICE's Online Detainee Locator System (ODLS), a public, Internet-based tool designed to assist family members, attorneys and other interested parties in locating detained aliens in ICE custody. The ODLS is located on ICE's public website, http://www.ice.gov, and provides users with information on the location of the detention facility where a particular individual is being held, a phone number to the facility and contact information for the ICE Enforcement and Removal Operations office in the region where the facility is located. A brochure explaining how to use the ODLS is also available on the website in the following languages: English, Spanish, French, Mandarin, Vietnamese, Portuguese, Russian, Arabic and Somali. See http://www.ice.gov/detention-reform/.
BIBLIOGRAPHY - DETENTION
Barriers to Representation for Detained Immigrants Facing Deportation: Varick Street Detention Facility, a case study, Peter L. Markowitz, Assistant Clinical Professor of Law at Benjamin N. Cardozo School of Law, Nov. 2009. http://law.fordham.edu/assets/LawReview/Markowitz_November_2009.pdf
ICE Memo: Amended Medical Escort Policy John P. Torres, Jan. 9, 2008: "This memorandum amends the June 21, 2007 Medical Escort Policy governing medical escorts for detainees who are removed from the U.S. by U.S. Immigration and Customs Enforcement (ICE)." http://bibdaily.com/pdfs/Torres%201-9-08.pdf
NOTE: This memo states that ICE will no longer sedate noncitizens against their will without a federal court order.
DETENTION - RELEASE OF NAMES OF DETAINEES
8 C.F.R. 236.6 prevents the public release of names of immigration detainees held in state or local jails, where release of names would otherwise be authorized or required under state law.
DETENTION - COMMUNITY RESOURCE KIT
"Step-by-step information about what communities and families can do when a loved one is detained, especially within the first 24 hours. Also included is how you can protect yourself from future raids, facts about the ICE detention and deportation system as well as flyers and other resources." Detention Watch Network and the National Immigration Project of the National Lawyers Guild. Jan. 2008. http://www.nationalimmigrationproject.org/commresourcekit.html
DETENTION - STATISTICS ON DEATHS OF DETAINED IMMIGRANTS
REMOVAL PROCEEDINGS - EFFECTIVE ASSISTANCE OF COUNSEL RIGHT WOULD ARGUABLY ATTACH - DESPITE COMPEAN - TO A CUSTODY REDETERMINATION HEARING, SINCE IT RESULTS IN A LITERAL LOSS OF LIBERTY
Matter of Compean, 24 I. & N. Dec. 710, n.3 (A.G. 2009) (by the reasoning in footnote 3, there would be a constitutional right to counsel in a custody redetermination hearing, as the "outcome" of that proceeding, entirely separate from the removal hearing, does result in a literal loss of liberty). Thanks to Rachael Keast.
DETENTION - AMNESTY INTERNATIONAL REPORT
"Over 30,000 immigrants are detained every day. This is triple the number detained just ten years ago. Immigrants can be detained for months or years without any meaningful judicial review - this despite international human rights standards requiring judicial review. It costs about $95 per day to detain someone, while effective alternatives only cost $12 per day. These more affordable alternatives are often not considered and the use of such programs varies greatly region to region." Amnesty International, Mar. 25, 2009. http://www.amnestyusa.org/uploads/JailedWithoutJustice.pdf
DETENTION - ICE DETENTION AND DEPORTATION OFFICERS FIELD MANUAL
Available at: http://www.aila.org/Content/default.aspx?docid=30245
BIBLIOGRAPHY " DETENTION " IMMIGRATION DETENTION RESOURCES
Noncitizens facing immigration detention and the advocates who represent them face a myriad of legal issues, ranging from eligibility for bond or parole, the location of and transfer between detention facilities, appearances in Immigration Court and eligibility for relief from removal, and harsh detention conditions. We want to alert you to resources on detention issues available through the Immigration Advocates Network (IAN), our partners, and other advocates. The Immigration Advocates Network library, at http://www.immigrationadvocates.org contains resources including: - A link to the Online Detainee Locator System; - A folder on detention in the Immigration Policy library; - A folder on immigration detainers; and - A folder on detention and bond Other resources on detention issues: American Immigration Council, http://www.legalactioncenter.org/, provides practice advisories on diverse immigration topics, including detention and enforcement. The ACLU Immigrants' Rights Project, at http://www.aclu.org/immigrants-rights/immigrant-detention. The Catholic Legal Immigration Network (CLINIC) offers resources specific to detention at http://cliniclegal.org/resources/ . The Detention Watch Network (DWN) is a nationwide coalition that addresses a variety of detention issues and offers resources and support at http://www.detentionwatchnetwork.org/. Lutheran Immigration and Refugee Service Lutheran Immigration and Refugee Service (LIRS) provides a chart on the annual detention population for fiscal years 1994 through 2011 at http://tinyurl.com The National Immigration Forum offers resources on detention and enforcement at http://www.immigrationforum.org The National Immigrant Justice Center provides resources on detention at http://www.immigrantjustice.org/ The National Immigration Law Center (NILC) offers resources on arrest and detention at http://www.nilc.org/ The National Immigration Project of the National Lawyers Guild provides information about enforcement and detention-related issues, including detention standards litigation, at http://www.nationalimmigrationproject.org/ Thanks to Immigration Advocates Network
BIBLIOGRAPHY " DETENTION " IMMIGRATION DETENTION
Dora Schriro, Dept. of Homeland Security, Immigration Detention Overview and Recommendations 1-29 (Oct. 2009); Detention Watch Network and Stanford Law Schools Immigrants Rights Clinic, Policy Brief: Community-Based Alternatives to Immigration Detention (Aug. 2010); Michael Welch, Detained (2002): Warehousing Illegal Immigrants (pp. 103-127).