Once a client has been released from criminal custody, into immigration custody, s/he may be transferred to a close or distant immigration detention facility.  The DHS decides where a noncitizen will be detained.  In some cases a noncitizen arrested by the DHS in California, for example, may be transferred to a detention center in Louisiana.[1]  This transfer means that the noncitizen will be subject to the harsher interpretation of the immigration laws that prevails in the Fifth Circuit, rather than the generally more lenient rules of the Ninth Circuit.[2]  At least one court has found that the DHS may also set, and redraw, the district lines which determine where a noncitizen will be detained to subject noncitizens arrested within one federal circuit to deportation proceedings in another.[3]  It is extremely difficult to convince a court to intervene in this decision.

 

It is also possible for the DHS to maintain the client in immigration custody in the local criminal facilities under contract with the DHS.  Counsel may wish to use ongoing criminal or post-conviction proceedings to encourage the DHS to keep a noncitizen client in a local facility.  See § 6.48, infra.

[150] In Committee of Central American Refugees v. INS, 795 F.2d 1434, 1439 (9th Cir. 1986), the court refused to restrain transfer of unrepresented noncitizens to remote areas where their access to counsel may be limited.  The decision might be different if such transfer affected due process rights by “impairing an established-ongoing attorney-client relationship.”  Where a person is transferred to a remote location, the immigration attorney can petition for a change of venue to a closer urban center, especially if the client makes bond, in which case venue is routinely changed. 8 C.F.R. § 1003.20.

[151] See § 15.7, infra.

[152] Ballesteros v. Ashcroft, 452 F.3d 1153 (10th Cir. Jun. 14, 2006) (DHS may, without following APA requirements of notice and comment, redetermine detention boundaries, even to the extent that noncitizens arrested in one federal circuit may be subject to the law of a separate circuit; noncitizens arrested in Idaho and Montana, within the Ninth Circuit, may be placed in removal proceedings in Colorado, in the Tenth Circuit, and therefore subject to Tenth Circuit law).

DETENTION " MANDATORY DETENTION " WHEN RELEASED " RELEASE FROM PRETRIAL CUSTODY OR TERMINATION OF PROBATION DO NOT TRIGGER MANDATORY IMMIGRATION DETENTION
Masih v. Aviles, __ F.Supp.2d ___ (S.D.N.Y. May 20, 2014) (noncitizen held not subject to INA 236(c), because noncitizen had never been released from criminal custody in relation to a removable offense; mandatory detention is not triggered upon release from pre-trial custody, and termination of probation also does not constitute release from criminal custody for mandatory detention purposes).

Third Circuit

DETENTION " LOCALE " NO RIGHT TO SPECIFIC LOCALE
Calla-Collado v. Attorney General of the U.S., 663 F.3d 680 (3d Cir. Dec. 1, 2011) (although respondents have right to present witnesses and evidence, there is no right to have one's hearing at a particular locale; no violation of constitutional rights where case was transferred from New Jersey to Louisiana following ICE detention transfer where noncitizen was unable to establish he was prejudiced by the transfer).

Seventh Circuit

DETENTION - HABEAS CORPUS
United States v. Hernandez-Arenado, 571 F.3d 662 (7th Cir. Jul. 6, 2009) (noncitizens held by ICE in a facility run by the Bureau of Prisons are not in the custody of the BOP for purposes of determining habeas corpus jurisdiction, even in light of the Adam Walsh Child Protection and Safety Act of 2006 (the "Act"), 18 U.S.C. 4248, et seq.).

Ninth Circuit

DETENTION " IMMIGRATION DETENTION " PROLONGED DETENTION
Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013) (bright-line rule that immigration detention exceeding six months requires a bond hearing); compare Diop v. ICE/DHS Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011), and Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003) (adopting a loosely defined standard that asks whether detention has become unreasonably prolonged).

Other

DETENTION " ALTERNATIVES
DHS Office of Inspector General report on ICE alternatives to detention: http://www.oig.dhs.gov/assets/Mgmt/2015/OIG_15-22_Feb15.pdf

DETENTION"LOCALE"NEW DETAINEE TRANSFER POLICY
http://www.aila.org/content/default.aspx?docid=38411 ICE directive, effective 1/4/12, establishes new requirements for the transfer of immigration detainees. ICE states that the new policy will substantially reduce the transfer of detainees who have family members, attorneys, or pending immigration proceedings in the area. AILA Doc. No. 12020260.

DETENTION " DETENTION LOCALE
Due Process and Immigrant Detainee Prison Transfers: Moving LPRs to Isolated Prisons Violates Their Right to Counsel "Although the overwhelming majority of individuals detained in immigration prisons are transferred from one prison to another, their relocation, this article suggests, frequently violates the Fifth Amendments due process right to counsel for lawful permanent residents (LPRs). Most LPR detainees spend their days awaiting a decision on their removability while confined in the nations largest detention centers, which are located in remote regions of Arizona, Georgia, and Texas. In these areas, there are very few attorneys willing to represent detained immigrants and detainees are isolated from social networks that could help them tap legal resources to put up a credible defense." Csar Cuauhtmoc Garca Hernndez, Capital University Law School, Berkeley La Raza Law Journal, Vol. 21, 2011. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1814385

DETENTION " LOCATION " ICE INFLUENCE OVER LOCATION OF FEDERAL INMATES
USDOJ-BOP has sole control over the institutions to which an inmate is assigned. In some cases, however, ICE has affected the location and even the transfer of certain clients. There are various arguments that can be made in support of or against a transfer, such as access to legal counsel, and the like. Some materials listed below may be useful in developing arguments and strategies for affecting the institution in which an inmate must serve the time. http://www.immigrationforum.org/images/uploads/2010/DetentionReportSummaries.pdf http://www.bop.gov/inmate_programs/designations.jsp http://www.bop.gov/policy/progstat/5100_008.pdf http://www.law.suffolk.edu/highlights/stuorgs/lawreview/documents/Codagnone_Comment_WDFF.pdf

DETENTION - CONDITIONS OF CONFINEMENT
June, 2007 ACLU briefing on conditions of confinement in immigration detention centers. "This briefing paper explains the domestic standards for detention conditions and demonstrates the pervasive problems with conditions of confinement that immigration detainees face in jails and detention facilities across the country. The paper aims to illustrate the widespread human rights violations that migrants face while in the custody of the United States and offers recommendations for improved conditions and effective oversight of detention conditions." http://www.aclu.org/pdfs/prison/unsr_briefing_materials.pdf

DETENTION - PRACTICE ADVISORY
National Immigration Project of the National Lawyers Guild, Practice Advisory, "Immigration Court Jurisdiction to Conduct Bond Hearings Regardless Whether DHS Transfers Respondent After the Hearing Request is Filed." The model brief argues that 8 C.F.R. 1003.19(c) should be interpreted, consistent with its intent, to allow bond hearings to go forward even after a person is transferred. See http://www.nationalimmigrationproject.org/PA_IMM_CRT_CONDUCT_BOND_HEARING.pdf

DETENTION - PLACE OF DETENTION
AILA Slip Opinion Blog: IJ Jurisdiction over Bond Hearings Following ICE Transfer. http://www.ailaslipopinionblog.org/2010/06/23/ij-jurisdiction-over-bond-hearings-following-ice-transfer/

DETENTION " LOCATION
A Costly Move report by the Human Rights Watch discusses the adverse effects of the DHS repeatedly transferring detained noncitizens to remote locations in the course of trying to fight their cases in immigration court. http://www.hrw.org/features/a-costly-move/

DETENTION " IMMIGRATION DETENTION " FACILITY LOCATORS
Ice detention facility locator http://www.ice.gov/detention-facilities/ By region, by state, and by facility name www.jailexchange.com/FederalPrisons/