I. Prolonged Detention Without A Bond Hearing Has Perverse And Arbitrary Effects On The Immigration System, Noncitizens, And Their Families
Prolonged detention has a devastating impact on our community members and clients, and the immigration system as a whole. First, prolonged detention without a bond hearing arbitrarily punishes immigrants, many of whom will ultimately remain in the U.S. with their families. It converts brief administrative detention into an indeterminate sentence, bearing all of the direct and collateral consequences of punishment. Second, prolonged detention without a bond hearing distorts the proper functioning of the removal system. It has an adverse, coercive impact on immigrants who need time to pursue their eligibility to remain in the United States, forcing the very individuals with the strongest cases to endure the worst of the detention system or forego their claims.
A. Prolonged detention without a bond hearing arbitrarily punishes noncitizens and their families
For many, prolonged detention is indistinguishable from an indeterminate prison sentence. An individual in prolonged detention passes months and years behind bars, in a prison jumpsuit, shackled during visitation and court; is subjected to surveillance, strip searches, and solitary confinement; and is referred to by a number. A majority of immigrants placed in removal proceedings are held in county jails, subject to the same rules and conditions as people currently serving sentences for recent criminal offenses. Other facilities, including those holding arriving asylum seekers at the border, are run by the same private prison companies whose poor track records on prison conditions recently led the U.S. Department of Justice to announce that it would reduce and ultimately end its use of private prisons to hold people accused or convicted of crimes in the Bureau of Prisons.
Prolonged detention thus leads to all of the direct and collateral consequences associated with punishment. It causes longtime separation from loved ones, often across state lines with limitations on visitation and communication; the placement of children in foster care; job loss and education disruption; and the loss of savings and property, including one’s home or business. For an individual who will ultimately remain in the U.S., it is hard to understand what purpose prolonged detention serves, if not to punish.
For example, decorated Gulf War veteran Warren Hilarion Joseph faced over three years in immigration detention before he won his case to remain in the U.S. and ultimately became a U.S. citizen:
Mr. Joseph came to the United States as a lawful permanent resident from Trinidad, enlisting in the U.S. Army when he was twenty-one. He served in combat positions in the First Gulf War, was injured in the line of duty, received commendations for his valiant service and his rescue of fellow soldiers, and was honorably discharged.
Like many other combat veterans, Mr. Joseph fell upon hard times after returning home. In 2001, Mr. Joseph was arrested for unlawfully purchasing a handgun for individuals to whom he owed money. He received a probation sentence, and with the support of his family was able to find a good job. When he moved to his mother’s house and failed to inform his probation officer, however, Mr. Joseph was found guilty of violating probation and was sentenced to six months.
Little did Mr. Joseph realize that after his six- month criminal sentence was over, he would then spend three and a half years – seven times the length of his sentence – in Hudson County Correctional Facility, in Kearney, New Jersey. He vividly recalls spending his first night in immigration detention sleeping on a concrete floor before a bed was available, pressing his injured foot into the cold ground to numb the pain, wondering when he would ever get out. His wartime injury worsened over years in the jail, until he had to be hospitalized for surgery, making it difficult for him to walk.
The indignities of the jail and the uncertainty of whether he would ever be released made detention almost too much to bear. Suffering from post-traumatic distress disorder, Mr. Joseph felt insecure and targeted in the jail. He was deeply pained to be separated from his U.S. citizen children and family members. His mother and sister were forced to travel across state lines to see him, though the jail sometimes turned them away.
Mr. Joseph was ultimately granted a form of relief called “cancellation of removal” in light of his positive equities and ties to the community, allowing him to retain his lawful permanent resident status. He recently became a U.S. citizen, and remains proud of the work he and other veterans have done to protect this country. But he will never get back the three and a half years of his life he lost to prolonged detention.
Similarly, the two-and-a-half-year period Astrid Morataya spent in detention carried all the punitive effects of an indeterminate criminal sentence:
A longtime lawful permanent resident, Ms. Morataya has lived in the United States since she was eight years old, after fleeing violence in Guatemala. The mother of three U.S. citizen children, Ms. Morataya was placed in removal proceedings in 2013 on the basis of a 1999 low-level drug distribution conviction for which she was sentenced to probation. She received her conviction more than a decade prior to her removal proceedings, during a period in her life when she was the victim of ongoing sexual abuse, including a violent kidnapping and rape.
Ms. Morataya ultimately testified against her abuser in court, aiding in his successful prosecution. When she was placed in removal proceedings years later, she was eligible for a “U visa” based on her cooperation with law enforcement and an “inadmissibility waiver” due to her strong positive equities. She was ultimately granted this relief, and remains in the U.S. with her family to this day.
For the entirety of the two-and-a-half years it took to resolve her removal case, however, Ms. Morataya was detained at the McHenry County Jail in Woodstock, Illinois and Kenosha County Correctional Center in Kenosha, Wisconsin. Guards treated her as an inmate, and punished her as one. She was twice placed in solitary confinement, once for having a sugar packet in her uniform that she forgot to dispose of at mealtime, and once for not being ready to leave her cell because she had begun menstruating and lagged behind her cellmates while trying to secure menstrual pads.
The years of Ms. Morataya’s detention also weighed heavily on her family. She missed birthdays, holidays, her youngest daughter’s first day of kindergarten, and her son’s high school graduation. Worst of all, she was forced to stand by when her youngest child, at five years of age, became the subject of a protracted and traumatic custody battle due to her detention.
The harms of prolonged detention have also been felt by asylum seekers like Emannuel Boukari, who fled persecution and torture only to be detained for years before ultimately receiving protection from deportation:
A young pro-democracy activist in Togo, Mr. Boukari initially came to the U.S. as a student and was subsequently deported. Upon his deportation, Mr. Boukari was detained and tortured by government forces for nearly a year before fleeing to a refugee camp in a neighboring country. He lived in the refugee camp for approximately six years until finding a job working for a local pastor and his congregation. When men in uniform appeared at the parish looking for him, Mr. Boukari collected the documents necessary to travel back to the U.S., where he had family.
Once here, he asked for protection at the border. Instead, he was placed into removal proceedings, labeled an “arriving alien,” and detained in Elizabeth Detention Facility, run by private prison corporation Corrections Corporation of America. Cut off from the outside world, Mr. Boukari was re-traumatized, forced to re-live his experience of being detained in Togo. He applied for and was denied humanitarian parole three times – despite his strong case, proof of identity, and family ties to the country.
After two-and-a-half years of detention, Mr. Boukari was granted withholding of removal. Now living with family in Nebraska, Mr. Boukari struggles to overcome the trauma he faced.
People like Mr. Joseph, Ms. Morataya, and Mr. Boukari are not unique within our immigration system. For removal cases that are not resolved quickly, it is not uncommon for administrative proceedings to last years, and for individuals to win their cases.
At least two sources of data confirm this. First is the data in Jennings v. Rodriguez itself. Rodriguezclass members – individuals who have been detained for at least 180 days while their removal proceedings remain pending – spent an average of 404 days in detention pursuing their cases.Ninety-seven percent of 235(b) subclass members pursued asylum, and two thirds won. Seventy percent of 236(c) subclass members pursued applications for relief from removal that would avoid the entry of a removal order, and won their cases at a rate of more than five times higher than
immigrant detainees generally.
Second is the data from the New York Immigrant Family Unity Project (NYIFUP), reporting the outcome and characteristics of individuals subject to prolonged detention who received bond hearings under Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015). The first public defender system for detained immigrants in the United States, NYIFUP ensures representation for indigent immigrants whose cases are heard at Varick Immigration Court in New York City.
According to an analysis of Lora bond hearings for NYIFUP clients conducted in a nine-month
period, individuals who received Lora bond hearings – i.e., individuals whose mandatory detention had exceeded or was approaching six months – were detained an average of 320 days. While the Lora decision is too recent for removal case outcomes to be known, based on available data, 66% of individuals who received Lora bond hearings pursued discretionary relief from removal, withholding, or protection under Convention Against Torture.
Thus, for many of our community members and clients, “civil immigration detention” is a cruel misnomer. The prolonged nature of their detention without a bond hearing turned brief, administrative detention into lengthy, punitive incarceration.
B. Prolonged detention without a bond hearing distorts the proper functioning of the immigration system
The Government’s repeated references to our community members and clients as “arriving and criminal aliens” prone to engage in “dilatory tactics” would have one believe that prolonged detention is the fault of dangerous noncitizens seeking to delay their inevitable deportation through the pursuit of various, often weak, claims. Gov’t Br. 11, 24, 40-42.
Actual data and detainee experiences, as discussed above, paint a very different picture. They show that many prolonged detainees are longtime residents and asylum seekers with strong claims and ties to the community who simply seek their day in court. Prolonged detention without a bond hearing forces many of these individuals to give up their valid claims in order to regain their freedom.
Consider the story of Arnold Giammarco, an Army veteran and lawful permanent resident who agreed to his own deportation because of the terrible impact of detention:
Mr. Giammarco was a lawful permanent resident from Italy who arrived in the United States when he was four years old and had lived with his family in Connecticut for approximately fifty years before being detained by immigration officials. Mr. Giammarco served nearly seven years in the U.S. Army and the Connecticut National Guard, achieving the rank of Sergeant, and was honorably discharged. He applied for naturalization while a service-member but his application was never adjudicated. After his military service and a divorce, Mr. Giammarco suffered emotional difficulties, struggled with drug addiction, and spent nights in homeless shelters.
Yet following a series of petty offenses and drug possession convictions, Mr. Giammarco rebuilt his life. He began working at McDonalds and was promoted several times, becoming a nighttime production manager. He married his U.S. citizen partner Sharon, and supported her efforts to become an addiction counselor. Together they had a daughter. Mr. Giammarco worked nights, took care of his daughter during the day, and often spent weekends visiting his parents and siblings.
In the spring of 2011, nearly seven years after his last removable conviction, armed immigration agents detained Mr. Giammarco for removal proceedings. As his detention stretched from weeks to months, it had a devastating impact on his family. Without her husband’s income, Sharon was forced to work seventy hours a week and move in with her sister. Mr. Giammarco’s mother liquidated her savings to pay for legal fees. Though the jail’s Chief of Immigration Services described Mr. Giammarco as a “model detainee,” on visits Sharon and their daughter were separated from Mr. Giammarco by a glass partition. During his daughter’s formative moments of life, he was unable to hold her.
After eighteen months, the anguish of imprisonment forced Mr. Giammarco to accept deportation to Italy. Years later, a district court judge ruled that his naturalization petition remains valid, and his family and community continue to fight for his return home to the U.S. Had he received a bond hearing after six months of detention, his military service, rehabilitation, and community ties could have been considered as factors meriting his release. Instead, he was forced to choose between his freedom and the possibility of winning his case.
Juan Santos, a labor trafficking victim, gave up on his case after initially winning before an Immigration Judge because he could not bear continued detention:
A victim of labor trafficking, Mr. Santos worked as a migrant farmworker for an agricultural enterprise in Florida under conditions of modern-day slavery. Beaten and periodically locked in a box truck, Mr. Santos testified against his traffickers in federal court. With his testimony, federal officials successfully prosecuted his employers for labor trafficking.
After Mr. Santos testified, however, immigration officials detained him and charged him with removability on the basis of several minor convictions he received during and in the aftermath of the labor trafficking. More than six months passed before an immigration judge granted Mr. Santos withholding of removal based on evidence he would be persecuted if deported to Mexico, where some of the powerful individuals he testified against had significant ties.
But immigration officials then appealed the decision, and the Board of Immigration Appeals (“B.I.A.”) remanded the case. On remand, the immigration judge denied Mr. Santos’s application. Mr. Santos filed an appeal based on strong claims of error, but after more than a year of detention at Baker County Jail in Florida, ultimately decided that he could not bear to remain detained. He withdrew his appeal and agreed to his deportation.
Mr. Santos was later awarded a damages judgment from a civil labor trafficking lawsuit, but because his counsel could not locate him after his removal to Mexico, he never received his award.
The story of Brayan Fernandez also highlights the negative impact of prolonged detention on individuals who have strong claims to remain in the U.S.:
Mr. Fernandez is a lawful permanent resident from Mexico who was detained and placed into removal proceedings in 2015, several years after two convictions stemming from a robbery offense for which he had been arrested when he was a young man. By the time he was detained, Mr. Fernandez had changed his life, had a stable job, and was supporting his family. Mr. Fernandez was eligible for relief from removal through an “adjustment of status” application and inadmissibility waiver, which first required the federal government to approve an “I-130” visa petition by his U.S. citizen wife, recognizing their family relationship as a basis for adjustment.
The process dragged on, however, for months. Detention separated him from his wife, who was pregnant, and his two young U.S. citizen children. After he missed the birth of his son, Mr. Fernandez grew disheartened and depressed. His wife attended all of his court appearances and hoped that the case would move more quickly. When, seven months into his detention, Mr. Fernandez accepted a deportation order rather than remain detained, his wife ran from the courtroom in tears. Mr. Fernandez was deported in November 2015. His I-130 visa petition was approved one month later.
Prolonged detention has an adverse, coercive impact on the immigration system as a whole. Individuals like Mr. Giammarco, Mr. Santos, and Mr. Fernandez had strong claims to remain in the U.S. But the length and indeterminate nature of their detention short-circuited the process.