The Brief


The Brief

The stories in this annotated amicus brief underscore the devastating impact of long-term detention on people held in detention and their families. We encourage you to click on the highlighted text throughout this brief to learn more about the people, the issues, and the stories.

An amicus curiae (Latin for “friend of the court”; plural, amici curiae) is a person or group who is not a party to a legal case, but who offers information relevant to the case to the court by submitting a legal document called an “amicus brief.”

The amici curiae on this brief are 58 community groups, immigrant rights organizations, law clinics, and legal service providers whose members and clients face the severe consequences of prolonged detention without bond hearings. Descriptions of each of the amici curiae are below.


Amici curiae are 58 community groups, immigrant rights organizations, law clinics, and legal service providers whose members and clients face the severe consequences of prolonged detention without bond hearings.[1] We have a profound interest in ensuring that the voices of our members and clients are included in the resolution of this case. As explained below, their stories are not outliers. Rather, they are emblematic of an unjust system where access to constitutionally adequate bond hearings is far too arbitrary.

Detailed statements of interest for each organization are appended after the conclusion of this brief.

Summary of argument

Each year, hundreds of thousands of people undergo a complex administrative process to determine whether they will be deported or permitted to remain in the United States. Roughly half of all asylum seekers and noncitizens placed in removal proceedings are permitted to remain.[2]Longtime lawful permanent residents receive cancellation of removal; fathers, mothers, and children fleeing persecution receive asylum; cases are terminated in light of legal errors. Decisions not to deport are a critical part of the fairness of the removal process. Such decisions carry out Congress’s intent to maintain family unity and offer humanitarian relief through our nation’s immigration laws.

The Government argues that detention is designed to facilitate the removal process. See Gov’t Br. 33But when detention extends from weeks to months to years without meaningful review, such detention perverts the removal process, both by punishing immigrants who will ultimately remain in the U.S. with their families, and by coercing immigrants with strong cases to forego their claims. Procedures short of bond hearings, and reliance on ad-hoc litigation, are insufficient to protect against these harms. Rather, as the stories and data discussed below demonstrate, this Court should ensure that individuals in prolonged detention have access to constitutionally adequate bond hearings.



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.[3] 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.[4] 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.[5]

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.[6] 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[7] 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[8] 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,[9] 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[10] 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.[11]Ninety-seven percent of 235(b) subclass members pursued asylum, and two thirds won.[12] 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.[13]

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.[14]

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.[15] 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.[16]

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.[17] 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,[18] 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,[19] 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[20] 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.

II. Current Administrative Procedures Fail To Protect Noncitizens From Unreasonable Deprivations Of Liberty Caused By Prolonged Detention Without A Bond Hearing

The flawed administrative procedures currently available to some detainees – “Joseph hearings” and humanitarian parole – fall far short of the process individuals in prolonged detention would receive through a bond hearing. Neither a Joseph hearing nor humanitarian parole offers a meaningful way to challenge prolonged detention because neither involves a hearing on flight risk and dangerousness before a neutral decisionmaker.

A. Joseph hearings fail to prevent the prolonged detention of individuals with meritorious immigration cases

A Joseph hearing is not a bond hearing. It does not address flight risk or dangerousness. Instead, it is a hearing in which a detainee may present legal arguments that she is not properly included in the mandatory detention statute. In re Joseph, 22 I. & N. Dec. 799, 806 (B.I.A. 1999). To prevail at a Joseph hearing, an individual must establish that the government “is substantially unlikely to establish the charge of deportability” at issue. Id. Under this extraordinary burden, the vast majority of Joseph hearings are resolved in favor of the government. See Julie Dona, Making Sense of “Substantially Unlikely”: An Empirical Analysis of the Joseph Standard in Mandatory Detention Custody Hearings, 26 Geo. Immigr. L.J. 65, 72 (2011) (finding that nearly ninety percent of Joseph hearing appeals result in continued detention); see also Tijani v. Willis, 430 F.3d 1241, 1246 (9th Cir. 2005) (Tashima, J., concurring) (Joseph standard “not only places the burden on the defendant … it makes that burden all but insurmountable”).

The case of Sayed Omargharib[21] illustrates how a Joseph hearing fails to protect meritorious litigants from years of mandatory detention:

Mr. Omargharib was a lawful permanent resident for twenty-eight years and a successful hairdresser in Washington, D.C. for over ten years when he was detained. He was charged as a removable “aggravated felon” due to a larceny conviction for taking two pool cues following a dispute with an opponent in a local pool league. Mr. Omargharib served no jail time for his conviction. But he spent nearly two years in immigration detention before he was released and his removal case was terminated.
After five months of detention, the immigration court finally held a Joseph hearing for Mr. Omargharib, but rejected his arguments that his conviction was not an aggravated felony under correct application of the law and ordered his deportation.
In 2014, the U.S. Court of Appeals for the Fourth Circuit ultimately agreed with the argument Mr. Omargharib had advanced at his Joseph hearing nearly two years prior, holding that his conviction was not an aggravated felony. That decision confirmed that Mr. Omargharib had never been deportable – or detainable – at all.
Upon his release Mr. Omargharib had lost both his home and means of supporting himself. Unable to satisfy business expenses and child support while detained and unemployed, his credit was destroyed. He missed his son’s high school graduation and the two became estranged. In Mr. Omargharib’s prolonged absence from the community, his clientele left permanently for other salons and he was unable to replace them. Now homeless, Mr. Omargharib is temporarily sleeping in a friend’s basement in Virginia. He still plans on applying for citizenship within the year.

The over three-year detention of Lorenzo Carrillo,[22] meanwhile, shows how Joseph hearings do not even offer U.S. citizens protection from prolonged mandatory detention:

Mr. Carrillo became a lawful permanent resident after being brought to the United States at seven years old. Growing up in California, he made close friends with his classmates and cared for his younger brother while his parents worked. When he was seventeen years old, his mother naturalized, automatically making him a U.S. citizen.
In 2006, Mr. Carrillo was erroneously detained and placed into removal proceedings for a firearm possession conviction. He filed two Joseph motions, presenting evidence of his claim to U.S. citizenship. Each time, the Immigration Judge rejected his arguments, even consolidating his decision on the second Joseph motion with his order of removal.
After three years of detention, a federal district court recognized that Mr. Carrillo was indeed a U.S. citizen. Only then did immigration authorities release him. His two Joseph hearings were meaningless to him.

B. The arbitrary exercise of parole authority fails to prevent the prolonged detention of asylum seekers and lawful permanent residents

Humanitarian parole is no replacement for a bond hearing. It offers no access to a neutral decisionmaker and is plagued by inconsistent administration.

Humanitarian parole decisions are made by various, dispersed agents within the U.S. Department of Homeland Security, the same agency that detains and pursues removal against noncitizens in the first place. When exercising this power, each immigration agent makes a judicially unreviewable decision as to “whose continued detention is not in the public interest” based on her own interpretation of that interest. 8 C.F.R. §212.5(b)(5). In theory, parole is favored for certain groups, including asylum seekers who pass a credible fear interview. See U.S. Immigration and Customs Enf’t, U.S. Dep’t of Homeland Sec., Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture 6 (2009),
. In practice, however, parole determinations are much more arbitrary.

Data shows, for example, that parole grants for asylum seekers who passed a credible fear interview have dramatically decreased from eighty percent in 2012 to forty-seven percent in 2015. Human Rights First, Lifeline on Lockdown: Increased U.S. Detention of Asylum Seekers 13 (2016), Those figures are consistent with a national survey of attorneys working in immigration detention centers conducted in 2016, which found that ninety percent reported denials of parole when eligibility criteria had been established. Id. at 14. Such statistics refute the government’s unsupported claim that asylum seekers who pass a credible fear interview are “ordinarily released” on parole. Gov’t Br. 14.

The stories below illustrate how parole fails to protect asylum seekers and lawful permanent residents with meritorious claims for relief from prolonged detention:

“Starting at age 17, Ahilan Nadarajah[23] was repeatedly tortured in Sri Lanka.” Nadarajah v. Gonzales, 443 F.3d 1069, 1071 (9th Cir. 2006). After arriving to the United States in search of asylum, he endured almost four and a half years of mandatory detention before winning his claim. Now a U.S. citizen, his requests for parole were repeatedly rejected.
Targeted as a member of a minority ethnic group in Sri Lanka, Mr. Nadarajah fled brutal beatings inflicted by the Sri Lankan army. He sought protection from the U.S. in 2001 but was detained as an “arriving alien.” ICE initially offered to parole Mr. Nadarajah out of detention on a $20,000 bond. Because he could not pay the bond, Mr. Nadarajah requested that it be lowered on three separate occasions. Each request was denied, and the parole offer was eventually rescinded without notice.
A year and a half into his mandatory detention, Mr. Nadarajah’s case was first heard before an immigration judge. Twice, Mr. Nadarajah was granted asylum; twice, the government appealed. After his second asylum grant, Mr. Nadarajah presented two more requests for parole, both denied.
He then filed a habeas petition in the District Court for the Southern District of California. Mr. Nadarajah was finally ordered released by the Ninth Circuit in March 2006, four years and five months after his placement in mandatory detention. The Court of Appeals found that ICE had abused its discretion by denying parole for reasons that were neither facially legitimate nor bona fide, based on facially implausible evidence. Today, Mr. Nadarajah is a U.S. citizen.

The story of Maria Alvarez,[24] illustrates how parole is arbitrarily refused to similarly situated individuals:

Mrs. Alvarez fled Mexico with her husband, son, and daughter after a criminal organization began extorting the family for “protection money” – a promise not to harm them as long as they continued to pay. When Mrs. Alvarez’s husband lost his job, the family missed a payment and her son and daughter were beaten. Aware that state authorities worked in collaboration with the criminal organization, all four family members sought asylum by presenting themselves at the U.S. border.
Immigration officers separated them, sending Mrs. Alvarez’s husband, son, and daughter to different detention centers in California and detaining Mrs. Alvarez alone in Arizona. All three of Mrs. Alvarez’s family members were then released and relocated to Virginia to live with family members. Yet despite the substantially similar bases for each family member’s asylum claims, Mrs. Alvarez alone remained in detention, her two parole requests denied.
Mrs. Alvarez’s first parole request included letters from a U.S. citizen family member pledging a fixed residence for her, evidence of her husband’s kidney disease and her role as his primary caregiver, and evidence of Mrs. Alvarez’s own cardiac and hypertension medical problems, supported by a professional medical evaluation. Her second request included letters detailing how her health had deteriorated in detention, a letter from her husband’s doctor attesting to his worsening medical condition without Mrs. Alvarez’s care, a letter from the immigration lawyer representing Mrs. Alvarez’s family in Virginia, committing to also represent Mrs. Alvarez if she were released, and letters from Mrs. Alvarez’s family documenting the hardship her detention had placed on them.
Because Mrs. Alvarez was detained in the Ninth Circuit, she eventually received a Rodriguez bond hearing. The presiding judge found that she was neither a flight risk nor danger to the community and released her on bond. Mrs. Alvarez awaits her asylum hearing in Virginia.

Mr. Nadarajah and Mrs. Alvarez both came to the U.S. seeking our protection. But asylum seekers are not the only individuals subject to arbitrary detention under laws that apply to “arriving aliens.”

The story of Leandro Placencia de la Rosa[25] is one of many stories of longtime lawful permanent residents[26] subjected to prolonged detention as “arriving aliens”:

Mr. Placencia became a lawful permanent resident at fourteen years old, in 1993, and has lived here ever since. His mother, two sisters, and two children are U.S. citizens, while his father and brother are also lawful permanent residents. For over ten years, Mr. Placencia worked as a taxi driver, financially supporting his children and mother, who suffers from severe arthritis.
After a brief trip to the Dominican Republic, Mr. Placencia was placed in removal proceedings, charged with inadmissibility based on an old drug possession conviction he had received as a minor. But it was not until years later, and after a second drug possession conviction, that immigration officials detained Mr. Placencia without bond in a New Jersey county jail, using his brief trip to classify him as an “arriving alien.”
Proceeding pro se, Mr. Placencia was ordered removed and transferred to Etowah County Detention Center in Alabama. As his time in detention wore on, he developed depression and hypertension.
In 2016, a community organization in New York City succeeded in reopening Mr. Placencia’s removal case and in transferring him back to detention in New Jersey. Due to immigration court backlogs, however, Mr. Placencia did not receive a hearing in his reopened case until March 2016. After a habeas petition was filed, immigration officials agreed to release him, and the petition was dismissed. He was subsequently granted cancellation of removal. All told, Mr. Placencia spent twenty-two months in detention as an “arriving alien.”

III. Ad Hoc Litigation Fails To Address Due Process Concerns For Individuals Whose Detention Has Already Become Prolonged

The Government supports the use of habeas litigation as a remedy for prolonged detention of
“exceptional duration.” Gov’t Br. 31, 46-50. But lack of legal expertise and pervasive court delays would make such a remedy illusory for the vast majority of individuals locked away in prolonged mandatory detention.

A. The majority of detained immigrants are pro se and lack the legal expertise to seek relief through federal litigation

No right to counsel is recognized in removal proceedings, and nationally, a mere fourteen percent of immigration detainees are represented by counsel. Ingrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 164 U. Pa. L. Rev. 1, 32 (2015). The vast majority of detained immigrants are pro se.

“With only a small degree of hyperbole, the immigration laws have been termed ‘second only to the Internal Revenue Code in complexity.’” Castro-O’Ryan v. U.S. Dep’t of Immigration & Naturalization, 847 F.2d 1307, 1312 (9th Cir. 1987) (quoting Elizabeth Hull, Without Justice For All 107 (1985)). “A lawyer is often the only person who could thread the labyrinth.” Id. A pro se litigant therefore faces nearly insurmountable barriers when seeking a remedy for prolonged detention in federal courts.

Pro se habeas petitioners face government attorneys who take full advantage of complex procedural requirements to seek dismissal of their cases – before they are even heard on their merits. See, e.g.Kholyavskiy v. Achim, 443 F.3d 946, 949 (7th Cir. 2006) (affirming dismissal of a habeas petition for failure to allege proper custodian); Carmona v. Aitken, No. 14-cv-05321-JSC, 2015 WL 1737839, at *8 (N.D. Cal. Apr. 10, 2015) (dismissing petition for failure to exhaust administrative remedies); Zhen Yi Guo v. Napolitano, No. 09 Civ. 3023 (PGG), 2009 WL 2840400, at *5 (S.D.N.Y. Sept. 2, 2009) (applying “immediate custodian” rule to find lack of jurisdiction).

Further, circuits that require a habeas petition to challenge prolonged detention use changing lists of factors whose satisfaction, let alone relevance, is not intuitive to the pro se petitioner. The Third Circuit, for example, inquires whether a petitioner’s challenge to removal is in “good faith,” essentially demanding a mini-trial on the merits of a removal case in order to win the right to a bond hearing in a custody case. See, e.g.Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469, 476 (3d Cir. 2015) (describing “reliance on a contested legal theory” amongst other “real issues” as “[t]he most important consideration for us”).

The over two-and-a-half-years of mandatory detention of Horatio Gomez,[27] a U.S. citizen, illustrate how pro se litigants are effectively cut off from meaningful relief from prolonged detention if forced to file habeas petitions:

Mr. Gomez immigrated to the United States from Mexico as a lawful permanent resident when he was twelve years old. Mr. Gomez’s mother was a United States citizen born in Arizona. When he was detained and placed in removal proceedings based on a misdemeanor marijuana possession conviction and a federal conviction for aiding and abetting in the distribution of marijuana, Mr. Gomez steadfastly argued that he was a U.S. citizen based on his mother’s status.
When immigration officials denied his request for a bond hearing, he filed a pro se habeas petition in U.S. district court. The district court rejected the petition on four separate occasions because he failed to comply with procedural rules he did not know existed, including giving a complete history of his immigration case. More than a year passed before the district court finally ordered the government to respond.
One month before that order, the Ninth Circuit decided Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008), holding that detainees whose removal orders had been judicially stayed, like Mr. Gomez, were entitled to bond hearings when their detention became prolonged. Mr. Gomez promptly moved for a Casas hearing before the immigration judge and was released on bond. His habeas petition was dismissed as moot. In total, Mr. Gomez spent over a year in mandatory detention after filing his pro se petition, and two-and-a-half years altogether.

B. Ad hoc litigation often results in arbitrary denials and delays in due process

Even those individuals who win a habeas claim face substantial delay in securing relief from prolonged mandatory detention. Given the “surge in immigration appeals and a corresponding surge in the sizes of … immigration dockets[,]” Lora, 804 F.3d at 615-16, district court review of immigration habeas petitions is frequently unreasonably prolonged itself.

Data on filing and decision dates from cases reported in Westlaw shows that delayed adjudication of habeas petitions alleging unreasonably prolonged detention under §1226(c) is not an isolated problem confined to one judge or circuit. In the Third Circuit, subsequent to the deciding of Diop v. ICE/Homeland Security, 656 F.3d 221, 223 (3d Cir. 2011), which set a “reasonable” time limit on §1226(c) detention, decisions ordering a §1226(c) bond hearing have taken a mean of 168 days to issue, or over five-and-a-half months. In the Eleventh Circuit, subsequent to this Court’s decision in Demore v. Kim, 538 U.S. 510 (2003), the mean decision time for a prolonged detention habeas ordering a §1226(c) bond hearing is 578 days, nearly 19 months. In the First Circuit, that same figure is 237 days, over seven-and-a-half months. In the Sixth Circuit, the figure is 409 days, almost 14 months.[28]

It is unjust to require detainees to endure additional months or years of detention in order to vindicate claims that their detention is already unconstitutionally prolonged. Patrick Thaxter,[29] a longtime lawful permanent resident, experienced that very injustice:

Mr. Thaxter has lived in the United States since 1999 and has been a lawful permanent resident for fourteen years. The loving father to five U.S. citizen children, Mr. Thaxter worked for years as a chef at a Caribbean restaurant in Philadelphia to support his family.
In 2013, Mr. Thaxter was convicted of a marijuana offense for which he received no jail time. He was subsequently detained without bond and consequently lost his job as a cook. His family was forced to move from Pennsylvania to a relative’s house in Georgia after threats of eviction.
After Mr. Thaxter’s detention became prolonged, he filed a habeas petition seeking a bond hearing. The district court eventually granted the habeas petition – but a full 530 days after filing. It took six months alone for the district court to refer the case initially to the magistrate judge; an additional eleven months for the magistrate to issue his report and recommendation; and finally two months for the district court to adopt the magistrate’s findings. Notably, the magistrate recognized that Mr. Thaxter’s detention had become prolonged by the date of initial filing.
The district court held a bond hearing, found that Mr. Thaxter was neither a flight risk nor danger to the community, and ordered him released. Mr. Thaxter continues to litigate his removal proceedings. Besides traveling to his job, Mr. Thaxter rarely leaves the house because his years in immigration detention accustomed him to confinement.

IV. The Second And Ninth Circuits’ Interpretation Avoids The Serious Constitutional Concerns Caused By Prolonged Detention Without A Bond Hearing

A. Rodriguez and Lora hearings ensure that individuals are not needlessly detained for prolonged periods

The stories above illustrate the harms of prolonged detention and the inadequacy of alternatives short of bond hearings. Just as powerful, though, are the stories of those who have received their day in court in the Ninth and Second Circuits. These early recipients of Rodriguez and Lora bond hearings demonstrate the value of bond hearings in ensuring due process and preventing unjustified detention.

Consider the story of Mark Hwang,[30] a lawful permanent resident who was detained and separated from his twin daughters just after their birth:

Mr. Hwang has been a lawful permanent resident of the U.S. for nearly thirty years, having immigrated to the U.S. from South Korea at the age of nine. In 2013, upon returning home from the hospital with his prematurely born newborn twin daughters, Mr. Hwang was arrested by immigration officials in a home raid. He now faced both deportation and mandatory detention for a marijuana conviction he received fifteen years prior. Shackled and transported to Adelanto Detention Facility, Mr. Hwang was forced to leave his U.S. citizen wife Sarah alone to care for their newborns and two-year-old son and to run their small business.
Detention was devastating for Mr. Hwang. He was unable to see his family for long periods. Even when they visited, he was not permitted to hold his children. He tried to have his marijuana conviction vacated, but was unable to appear at any criminal court hearings due to his detention.
Finally, after six months of detention, in July 2013 Mr. Hwang was given a Rodriguez hearing and ordered released on a $9,000 bond. Mr. Hwang later had his marijuana conviction vacated, and his removal proceedings were subsequently terminated in August 2014, restoring his lawful permanent resident status.

Rodriguez hearings have similarly made all the difference to numerous asylum seekers like Gloria Cervantes Flores:[31]

Growing up in Honduras, Ms. Cervantes faced serious abuse and neglect. Beaten, burned, and forced to work at the age of six years old, Ms. Cervantes experienced unspeakable trauma. As an adult, Ms. Cervantes fell in love only to experience abuse at the hands of her domestic partner. He beat and raped her, punched her in the stomach while she was pregnant, and tried to yank her baby out when she refused to get an abortion. Ms. Cervantes fled the abuse and presented herself at a U.S. port of entry. She was sent to the Mesa Verde Detention Facility in Bakersfield, California, where she passed her credible fear interview. But she was not released.
As the months passed, Ms. Cervantes submitted five requests for humanitarian parole, supported by a sponsor letter, financial records, identity documents, and medical documents relating to medical care she needed in detention. Each of the requests was denied, using boilerplate language. In December 2015, after six months of detention and with her asylum case still pending, Ms. Cervantes finally received a Rodriguez bond hearing, and the Immigration Judge granted release on $1,500 bond. With the help of family and friends, Ms. Cervantes’s bond was posted and she was able to rejoin her family in Bakersfield, California, where she continues to reside, awaiting her upcoming immigration court hearings.

On the other side of the country, after the Second Circuit interpreted §1226(c) to avoid constitutional concerns in Lora v. Shanahan, individuals like Aba Dele[32] also were able to secure due process:

Mrs. Dele was born in West Africa and experienced a difficult childhood. She was twice raped and struggled to find work to support herself financially.
Afraid of the violence and instability of her life in West Africa, Mrs. Dele came to the United States on a visitor’s visa. In 2006, her family began to struggle financially. Facing eviction, Mrs. Dele took some money from the company that employed her to pay her rent. Soon arrested, she was sentenced to probation and restitution, which she paid back in full. Ashamed by what she had done, she rebuilt her life and eventually become a home health aide for elderly individuals. She married a U.S. citizen and together they raised four children in addition to supporting other family members.
Eight years after her conviction, without any other incidents with the law, Mrs. Dele was dropping her youngest child off at his preschool when she was arrested and shackled by armed immigration agents. Mrs. Dele was detained in a county jail far from the city where she lived. Despite her eligibility for lawful permanent residence as the wife of a U.S. citizen and her role as a caretaker and breadwinner for four young children, she was subjected to mandatory detention based on her prior conviction.
Because her case was within the Second Circuit, Mrs. Dele was eligible for a Lora bond hearing. Throughout the long months of separation from her children, she focused desperately on the date of her bond hearing, and in October 2016 was granted a $3,000 bond. Her husband posted the bond and she was released back to her family. She continues to pursue her adjustment of status application.

Similarly, the story of Alexander Lora[33] – the man whose case gave rise to prolonged detention bond hearings in the Second Circuit – illustrates the power of bond hearings to ensure due process:

Alexander Lora is a lawful permanent resident from the Dominican Republic who has lived in the United States since he was seven years old. In 2014, Mr. Lora was placed into removal proceedings and detained based on a 2010 drug offense, for which he had been sentenced to probation with no jail time. His immigration detention without bond forcibly separated Mr. Lora for the first time from his family in Brooklyn. Left behind were his fiancée, his ailing mother for whom he provided care, and his then-two-year-old son, who was placed into foster care while Mr. Lora was detained.
Although he was able to establish eligibility for relief from removal, his case continued for months and Mr. Lora remained detained. The grant of his habeas petition, which ultimately resulted in the Second Circuit’s decision in Lora v. Shanahan, led to a bond hearing. At the bond hearing, the government stipulated to a bond of $5,000 and waived appeal. Since his release, Mr. Lora reunited with his family in Brooklyn, got his U.S. citizen son out of foster care, obtained gainful employment as a unionized construction worker, and married his U.S. citizen fiancée. He continues to work and provide for his family as he awaits his upcoming hearing on cancellation of removal.

Individuals like Mr. Hwang, Ms. Cervantes, Mrs. Dele, and Mr. Lora are not alone. In the Ninth Circuit, over the course of an eighteen-month period, approximately 1680 bond hearings were held for Rodriguez class members.[34] Sixty-nine percent of individuals in these hearings were granted bond.[35] In the Second Circuit, in the approximately nine-month period after the court issued Lora, at least 158 Lora hearings were held for indigent noncitizens in one immigration court within the Second Circuit alone.[36] Sixty-two percent of individuals who received these Lora hearings were granted bond.[37]

Notably, not everyone who received a Rodriguez or a Lora bond hearing was released. Based on available data, 31% of Rodriguez hearings and 38% of Lora hearings resulted in the denial of bond.[38]The Government repeatedly conflates the provision of a bond hearing with a grant of release. The data reveals no such equivalence.

B. The procedural protections in Rodriguez and Lora hearings ensure that noncitizens are not arbitrarily deprived of their liberty

The procedural protections in Rodriguez and Lora hearings are essential to the provision of due process. In these hearings, the government must justify continued detention by clear and convincing evidence. See Rodriguez v. Robbins, 804 F.3d 1060, 1077 (9th Cir. 2015); Lora v. Shanahan, 804 F.3d 601, 616 (2d Cir. 2015). Moreover, if an individual remains detained, hearings must reoccur every six months, and the length of the continuing detention must be considered at these hearings. Rodriguez, 804 F.3d at 1088-90.

As the story of Sylvester Owino[39] illustrates, these procedural protections are critical to ensuring that bond hearings are constitutionally adequate and meaningful:

A member of a minority tribe in Kenya during a period of political unrest, Mr. Owino was arrested and tortured by Kenyan police on multiple occasions. Mr. Owino fled Kenya in 1998, securing a student visa to study in the United States, and made this country his home.
Years later, battling struggles with alcohol, Mr. Owino was convicted of robbery and placed in removal proceedings. Detained by immigration officials in 2006, Mr. Owino applied for protection from removal to Kenya under the Convention Against Torture.
Thus began Mr. Owino’s nine-year ordeal in mandatory detention. His applications both for bond and relief from removal were initially denied and it ultimately took multiple Ninth Circuit decisions to correct the various errors committed by the Immigration Judge and the B.I.A.
As the years passed, Mr. Owino repeatedly sought new bond hearings, but his requests for release were denied. After the Ninth Circuit issued its decision in Rodriguez, Mr. Owino was transferred to a detention facility in Alabama. Community Initiatives for Visiting Immigrants in Confinement mounted a successful campaign to return him to the Ninth Circuit. Only then was Mr. Owino given another bond hearing. The Immigration Judge ultimately granted Mr. Owino release on $1,500 bond, which community members raised in less than thirty minutes. After nine years, Mr. Owino was able to regain his freedom.

People who are detained for years without a final order of removal, like Mr. Owino, are by definition succeeding in their lawful efforts to defend themselves against deportation. Periodic bond hearings, where the length of detention is considered, allow immigration judges to account for these struggles and the punitive aspects of such prolonged detention.


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The stories of the community members and clients described in this brief demonstrate the harsh consequences that prolonged detention has on individuals who lack meaningful access to constitutionally adequate bond hearings. Amici respectfully urge this Court to consider the unjust impact that this interpretation has on the immigrant communities we represent and uphold the decision of the Ninth Circuit in this case.

Respectfully submitted,

Anthony Enriquez
Immigrant Defense Project
40 West 39th Street
Suite 501
New York, NY 10018
(212) 725-6422

Alina Das
Counsel of Record
Washington Square Legal Services, Inc.
245 Sullivan Street
5th Floor
New York, NY 10012
(212) 998-6430


Counsel for Amici Curiae

October 2016