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Letters to the 107th Congress

November 13, 2001

The Honorable Carl Levin
Chairman, Permanent Subcommittee on Investigations
Committee on Governmental Affairs
United States Senate
Washington, D.C. 20515

Dear Mr. Chairman:

The American Bar Association has a long-standing and strong interest in immigration detention and the related issues to be examined in the hearing before your Subcommittee today.

The ABA joins the rest of the nation in condemning acts of terrorism. We also recognize that our nation faces many challenges in preventing future acts of violence. At the same time, we have numerous concerns about the growing reliance on immigration detention because it deprives individuals of their liberty and significantly impacts on their ability to secure and maintain working relationships with counsel.

Today, there are about 20,000 detention beds available to the INS; 55 percent are rented from private prisons and state and local jails. Immigration detainees total over 200,000 annually and represent the fastest growing segment of the U.S. incarcerated population. Although the lack of access to phones, family, counsel and legal information in these places is well-documented, and there is nearly universal agreement that criminal and non-criminal detainees should not be commingled, the INS continues to rely on these penal facilities for asylum seekers and other administrative detainees.

The Association's interest in immigration detention and our involvement in securing the rights of detained aliens date back to 1980, when we organized a national pro bono effort to represent Haitian entrants. Since that time, the Association has conducted or participated in numerous delegations to INS-operated and contract detention facilities and created pro bono programs to assist men, women and children immigration detainees.

The Association also has worked closely with the Department of Justice to establish minimal standards for access to legal representation for aliens in proceedings, physical and telephonic access between detainees and legal representatives, accurate lists of legal service providers for dissemination to detainees, and general legal presentations and the distribution of informational and legal materials to detained persons. Notwithstanding these standards, the Association opposes the mandatory detention of individuals who are waiting for administrative immigration hearings for many reasons.

Access to legal representation is vital to individuals facing deportation.1 The immigration laws are more complex than ever and the case law is rapidly evolving. A lawyer, or qualified legal representative, makes an assessment of legal options and eligibility for relief, prepares the formal applications, identifies witnesses and gathers supporting documentary evidence, and helps the applicant focus on what is relevant to meet his or her burden of proof. Indeed, asylum applicants who are fortunate enough to find representation, often through a pro bono lawyer, are up to six times more likely to be granted asylum.2 Legal assistance also facilitates the smooth functioning of the system.3 At the same time, accelerated procedures, such as expedited removal, present virtually insurmountable barriers for unrepresented individuals who do not understand our English language and legal system.

In spite of efforts by the bar and other organizations to provide legal assistance, detained individuals by virtue of their incarceration are rarely able to secure legal representation. It has been widely reported that roughly four-fifths of detainees in immigration court proceedings go unrepresented by counsel. While low- cost or pro bono representation is available in major metropolitan communities throughout the United States, INS detention facilities commonly are located in isolated areas where such assistance is not available or grossly inadequate given the size and disbursement of the detained population. As a result, individuals who are not deportable or who may qualify for relief face removal because they are unaware of their rights or cannot effectively exercise them. In addition, others may prolong detention by applying for relief for which they are not eligible, because they have not been properly informed of their options.

Reports issued by respected organizations, including the Lawyers Committee for Human Rights, Human Rights Watch, and the Women=s Commission on Refugee Women and Children, document incidents of mistreatment by detention officers, inappropriate placements of unaccompanied minors, absence of legal information and a multitude of problems relating to access to legal representatives, including the isolated location of facilities, limited consultation hours, and restricted use of telephones. Lawsuits against the INS have similarly demonstrated that unrepresented detainees are often misinformed about the legal process and pressured into abandoning their claims. Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990).

The Association has adopted policy addressing a range of detention concerns. We believe that it is in the interests of both the INS and U.S. taxpayers, as well as the bar, that scarce public resources are not spent detaining persons who do not pose a threat to the community and who are not flight risks. We also have strong objections to expedited removal and its possible expansion. Accordingly, we offer the following recommendations:

Detention

1. Pre-hearing detention should be limited.

The ABA has a long-standing position that the INS should detain aliens only in extraordinary circumstances, such as to protect national security or address serious threats to public safety, and in the least restrictive environment necessary. Freedom from physical detention lies at the core of the liberty interest protected by the Due Process Clause. Foucha v. Louisiana, 112 S. Ct. 1780 (1992). Accordingly, the government may deprive an individual of that interest only if it can demonstrate that such deprivation actually serves a significant and legitimate objective.

Individual custody determinations by immigration judges, with administrative and judicial review, are the minimum the government can provide to ensure that due process rights are protected. In general, persons with pending removal hearings should be released from custody absent specific reasons to maintain them in detention. See, e.g., Matter of Patel, 15 I&N Dec. 666 (BIA 1976).

We are troubled by a series of Justice Department rule changes since September 11 permitting prolonged detention of immigration detainees before charges are initiated, continued mandatory detention without bond or a custody hearing after charges have been filed (even when charges are not based on security grounds), and an automatic stay of release when an immigration judge or the Board of Immigration Appeals disagrees with the INS and sets a bond. These significant changes went into effect immediately upon publication in the Federal Register, without the notice and comment period usually required by under the Administrative Procedures Act.

2. Pre-hearing release programs should be developed.

For more than a decade, the ABA has recommended that the INS develop alternative means of ensuring appearance at court proceedings, such as supervised conditional pre-hearing release programs employed effectively in the federal and state criminal justice systems. It is the job of these programs to verify an individual's identity, address, and other U.S. ties; to establish conditions for release; and to provide the necessary monitoring and follow-up to ensure appearance at hearings. A supervised release program would benefit both these individuals and the INS, saving taxpayer resources and freeing scarce detention space for those individuals who require it. INS reportedly budgets more than one billion dollars annually for the detention and removal of aliens.

To its credit, the INS implemented a pilot program in May 1990 with the Lawyers Committee for Human Rights to parole up to 200 asylum seekers who were detained pending their exclusion hearings in Los Angeles, Miami, New York, and San Francisco. Another supervised pilot program, the Appearance Assistance Project, was subsequently conducted in New York by the Vera Institute.

The national implementation of a pre-hearing release program for persons awaiting proceedings is long overdue. The fact that the INS has yet to implement such a program should not justify the increased use of mandatory detention.

3. AMandatory detention@ should be terminated.

The 1996 immigration reform law requires the Attorney General to take into custody certain categories of aliens, at enormous expense to the government and U.S. taxpayers. Mandatory detention without consideration of release or providing a fair hearing regarding the conditions of custody also may be unconstitutional. See Zadvydas v. Davis, 121 S. Ct. 2491 (2001).

In enacting mandatory detention in 1996, the Congress disregarded a long line of legal authority in which the courts consistently found that the failure to provide a custody hearing where a deportation proceeding is pending is an excessive restriction on the alien=s liberty and, as such, violates substantive due process under the Fifth Amendment. Leader v. Blackman, 744 F. Supp. 500 (S.D.N.Y. 1990); Joe v. Thornburgh, Case No. 90-12313-2 (D. Mass. Oct. 26, 1990); Paxton v. INS, 745 F. Supp. 1261 (E.D. Mich. 1990); Fernandez-Santander v. Thornburgh, 751 F. Supp. 1007 (D. Me. 1990), vacated and remanded without opinion, 930 F.2d 906 (1st Cir. 1991); Kellman v. District Director, U.S. INS, 750 F. Supp. 625 (S.D.N.Y. 1990); Probert v. INS, 750 F. Supp. 252 (E.D. Mich. 1990), aff'd on other grounds, 954 F.2d 1253 (6th Cir. 1991).

The courts also found that the "[f]ailure to provide a hearing prior to detention constitutes a violation of procedural due process." Probert, 750 F. Supp. at 256. See also Paxton, 745 F. Supp. at 1206; Fernandez-Santander, 751 F. Supp. at 1101. Moreover, "[a] bail hearing would not pose significant fiscal or administrative burdens on the government and would greatly minimize the risk of erroneous deprivation of a liberty interest." Leader, 744 F. Supp. at 508 (citing the balancing test established in Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). See also Paxton, 745 F. Supp. at 1266; Kellman, 750 F. Supp. at 628.

A series of related cases successfully challenged the mandatory detention of lawful permanent residents in exclusion proceedings on procedural and substantive due process grounds. See St. John v. McElroy, 917 F. Supp. 243 (S.D.N.Y.1996); Alba v. McElroy, No. 96 Civ. 8748 (DLC), 1996 WL 695811 (S.D.N.Y.); Thomas v.McElroy, No. 96-CV-5065 (JSM), 1996 WL 487953 (S.D.N.Y.); Cruz-Taveras v. McElroy, No. 96-CV-5068 (MBM), 1996 WL 455012 (S.D.N.Y.); Ekekhor v. Aljets, 979 F. Supp. 640 (N.D. Ill. 1997). But see Richardson v. Reno, 162 F.3d 1338 (11th Cir. 1998).

Since 1996, a new body of case law has developed which holds that detention without bond pending a determination of deportability violates, on its face, the constitutional right to due process. See Martinez, et al. v. Greene, 28 F. Supp.2d 1275 (D.CO. 1998); Cabreja-Rojas v.Reno, 999 F.Supp. 493 (S.D.N.Y. 1998); Zadvydas v. Caplinger, 986 F. Supp. 1011 (E.D. LA. 1997); Morisath v. Smith, 988 F. Supp. 1333 (W.D. WA. 1997).

This line of authority makes clear that individual custody determinations by immigration judges, with administrative and judicial review are necessary to ensure that due process rights are protected.4

4. New Justice Department rules seriously impinge on the right to counsel.

The American Bar Association is deeply troubled by the U.S. Justice Department's newly released administrative rules that would permit the government to listen in on conversations between lawyers and clients in federal custody, including people who have been detained but not charged with a crime or immigration offense, if there is "reasonable suspicion" that an exchange of information may occur "for the purpose of deterring future acts that could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons."

We understand the necessity to take all steps necessary, consistent with our Constitution, to prevent acts of violence or terrorism. But these new rules run squarely afoul of the Fourth, Fifth and Sixth amendments to the U.S. Constitution.

No privilege is more "indelibly ensconced" in the American legal system than the attorney-client privilege. These new rules clearly violate that privilege, and therefore seriously impinge on the right to counsel - a right that extends to foreign-nationals in immigration proceedings. If the government has probable cause to believe criminal activity is occurring or is about to occur, it can ask a judge to approve the type of monitoring proposed by these regulations. But prior judicial approval and the establishment of probable cause - not "reasonable suspicion" - are required if the government's surveillance is to be consistent with the Constitution and is to avoid abrogating the rights of innocent people.

5. INS Detention Standards should be implemented at all local and state operated facilities that the INS utilizes to house its detainees.

The INS has approved and issued Detention Standards relating to detainees= access to counsel and legal information. These Astandards@ (issued November, 2001) cover detainees= access to telephones, visitation policy, presentations of group legal rights and access to law libraries, as well as a variety of other aspects of detention. This is the first time the INS has instituted standards that apply to all facilities holding INS detainees and will hopefully eliminate the variations that have existed from detention center to center regarding attorney access to detained clients.

In particular, the ABA is pleased that attorneys now have access to meet with clients at least eight hours a day, seven days a week; that group legal rights presentations are permitted in all INS facilities; that all facilities will have telephones which provide for debit calls as well as pre-programmed pro bono numbers; and that each facility has a law library with extensive immigration law materials.

We are disappointed, however, that the standards were not promulgated into regulation and that the common practice of transferring detainees from one remote facility to another without notifying counsel has not been addressed. Most importantly, the standards currently apply in full only to 28 INS Service Processing Centers and INS-operated contract detention facilities. Over 55 percent of immigration detainees are housed by the INS in hundreds of non-INS facilities where the access standards are not in full force, generally county and local jails with which the INS contracts for bed space. Although the standards are being phased in to these facilities, the INS lacks sufficient resources to ensure that the standards are rigorously enforced. In view of the increasing reliance on such non-INS facilities, it is essential that the INS require implementation of the access standards in these non-INS facilities and refrain from utilizing facilities that are unwilling or unable to meet these standards.

It should be noted that asylum seekers often are detained in local jails that are not yet covered by the standards. The 90 facilities in which over 4,700 children are held annually - with all of which the INS contracts for bed space - also are not covered.5 While the INS intends to extend the standards to these facilities, it simply is not appropriate for the INS to use jails and institutions for juvenile offenders for these vulnerable populations.

Expedited Removal

Since April 1, 1997, INS inspectors at U.S. land borders, international airports and sea ports have possessed extraordinary power to make and execute on-the-spot deportation decisions.6 Instead of safety and fair process, many travelers who reach our shores today, including asylum seekers who are fleeing repressive regimes and persecution, find themselves deprived of liberty without access to legal assistance, are summarily deported without appearing before immigration judges, and are barred from returning for five-years. They also are prohibited from appealing to the courts.

This expedited removal authority is exercised by about 4,900 INS officers, at nearly 300 ports of entry. More than 83,000 removal orders were issued in FY 2000. During that same time frame about 3,000 people who expressed fears of returning to their home countries were referred to the asylum corps for credible fear interviews - less than 10 individuals per day. This is about half of the number who had sought asylum at the nation's borders in the year before the law went into effect and may suggest that bona fide asylum seekers are being turned away.

The ABA has concerns not only about the expedited removal process itself but also about whether this authority is being exercised properly. We have received reports from lawyers that admissible individuals have been improperly denied entry to the United States and that some refugees fleeing persecution are not making it through the inspections processes to a credible fear interview with an asylum officer.

One reason for concern was raised by findings in a 1998 GAO report. See Illegal Aliens: Changes in the Process of Denying Aliens Entry to the United States (GAO, March 1998). Although the INS inspectors generally followed the prescribed procedures, reviews at all five locations visited by the GAO "indicated inconsistent compliance with the procedures." In four locations, INS inspectors did not document asking at least one of three questions required for determining if a credible fear interview is necessary up to 18 percent of the time. In a subsequent study, INS inspectors did not document asking at least one of the required questions up to 16 percent of the time. Illegal Aliens: Opportunities Exist to Improve the Expedited Removal Process (GAO, September 2000). The GAO also was not able to determine whether or not the INS inspectors are correctly or incorrectly making exclusion decisions in the first place, and it did not investigate reports of abuses during the inspections processes, including denial of food, phone and bathroom privileges, and verbal abuse.

Another concern stems from an in-depth study by Janet Gilboy, a researcher at the American Bar Foundation, who examined the work of immigration inspectors at ports of entry prior to expedited removal. In her study, "Deciding Who Gets In: Decisionmaking by Immigration Inspectors," 25 Law & Society Review 571, 587 (1991), Gilboy reported that immigration inspectors at ports of entry often make judgments based on a traveler's nationality:

Little or no individualized inspection occurs; presentation of the country passport suffices to judge what type of individual is requesting admission. This handling implicitly reflects inspectors' notions about the individual's limited credibility, that is, lack of trustworthiness of statements or documents.

Because the INS has consistently rebuffed efforts by independent researchers to study the expedited removal process, academics and nongovernmental organizations are trying to monitor the process through other means. The most extensive study is being conducted by The Expedited Removal Study (ERS) based at the University of California, Hastings College of the Law. See Karen Musalo, The Expedited Removal Study: Report on the First Three Years of Implementation of Expedited Removal, Center for Human Rights and International Justice, University of California, Hastings College of Law (May 2000). ERS' preliminary analysis suggests that women and non-English speakers may have greater difficulty navigating through the expedited processes than better-educated men.

In addition, the Lawyers Committee for Human Rights has documented numerous cases of people fleeing religious persecution, ethnic violence, political repression, and human rights abuse being wrongly turned away from the United States. They also have documented incidents involving asylum seekers who narrowly avoided summary removal or who were mistreated by the INS. Is this America: The Denial of Due Process to Asylum Seekers in the United States (October 2000). The ABA has received reports about asylum seekers who were returned to dangerous countries before anyone even knew they had reached the United States. The ABA also has received information about asylum seekers whose deportations were intercepted before they suffered a similar fate.

These reports combined with the secrecy that surrounds the expedited removal process, the absence of independent observers, and anecdotal evidence regarding mistreatment by INS inspectors, fuel concerns that these expedited processes frustrate claims by genuine refugees.

For these reasons, the ABA strongly supports changing the current process to provide procedures that give individuals a fair chance to consult with counsel and present their cases, as proposed in S. 1311, the Refugee Protection Act, introduced by Senators Patrick Leahy (D-VT) and Sam Brownback (R-KS). The ABA also makes the following recommendations pertaining to the removal process:

1. Removal decisions should be made by immigration judges, not law enforcement officers.

A removal proceeding is an evidentiary inquiry that involves both fact-finding and legal analysis to determine a person's identity and citizenship, and whether or not he or she is removable from the United States or is eligible for an immigration benefit or relief, and to what country the individual should be removed, if ineligible to remain here.

The ABA strongly believes that removal orders should be entered only by impartial adjudicators, preferably immigration judges, following a formal hearing that conforms to accepted norms of due process. The decisions of these immigration judges, moreover, must be subject to administrative and judicial review. Expedited removal does not afford these procedural protections and, therefore, is more likely to result in error or abuse. Its use should be re-examined in light of these principles.

2. The expedited removal program should not be expanded.

We have many reservations about the current program and even more about the inherent dangers in giving similar powers to the Border Patrol or expanding expedited removal to the interior of the country. The current law permits the Attorney General to use expedited removal for anyone "who has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility." INA section 235(b)(1)(A)(iii)(II). Although former Attorney General Janet Reno declined to implement that provision, the statute remains on the books and the implementation decision has been delegated to the sole discretion of the INS Commissioner. 8 CFR 235.3(b)(ii). A designation by the Commissioner is effective upon publication in the Federal Register and is not subject to judicial review.

We understand that the Border Patrol may be actively seeking expedited removal authority. This would violate fundamental principles underlying our legal system and threaten civil liberties. We do not allow police officers who make arrests to impose sentences; there is an independent process to establish guilt and punishment. Similarly, we should not authorize officers with the Border Patrol to issue and execute removal orders. As discussed above, removal decisions involve both factual and legal inquiries that are likely to result in error when made outside of a formal hearing process.

Conclusion

The ABA is committed to the principle that individuals who are facing removal from the United States have a right to fundamental due process and other constitutional protections. The current expedited removal procedures hinder due process and deny access to counsel. The prospect of expanding these laws may jeopardize the civil rights of minority United States citizens and lawful residents.

The ABA also has numerous concerns about the growing reliance on immigration detention. The history, conditions, and consequences of immigration detention, from Ellis and Angel Islands to the present day, are well-documented. Because it both deprives individuals of their liberty and significantly impacts on their ability to secure and maintain a working relationship with counsel, detention should be invoked in only extraordinary situations and be subject to review hearings, and alternative (potentially less costly) means of ensuring an alien=s appearance should be instituted. Administrative detainees including children ought not be detained in criminal facilities, and bona fide asylum seekers should not be detained at all unless they pose a risk to national security or are flight risks. Allegations of obstacles to access to counsel, inhumane conditions of confinement and physical mistreatment of detainees should be investigated.

We thank you for inviting the Association to share its views and would welcome the opportunity to discuss them with you more extensively. We request that you include this letter in the record of your hearings.

Sincerely,

Robert D. Evans
Director, Governmental Affairs Office


1 If the banishment of an alien from a country into which he has been invited . . . where he may have formed the most tender of connections, where he may have vested his entire property and acquired property . . . and where he may have nearly completed his probationary title to citizenship . . ., if a banishment of this sort be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom to which the norms can be applied.

Mr. (James) Madison=s Report, General Assembly of Virginia (January 7, 1800) (reprinted in The Virginia Commission on Constitutional Government, The Kentucky-Virginia Resolutions and Mr. Madison=s Report of 1799, 36 (1960)).

2 See, e.g., Susan Martin and Andrew Schoenholtz, "Asylum in Practice: Successes, Failures, and the Challenges Ahead," 14 Geo. Immigr. L.J. 589, 595 n.34 (2000) (citing EOIR, Immigration Court Asylum Decisions: FY 1999); Richard Tulsky, "Asylum Seekers Face Lack of Legal Help," San Jose Mercury News, Dec. 30, 2000, at A12.

3 See, e.g., Anna Hinken, Evaluation of the EOIR-Funded Rights Presentation Pilot Project (United States Department of Justice, Executive Office for Immigration Review 2000), www.usdoj/gov/statpub/rightspresmail.html, recommending the replication of legal orientation programs for INS detainees could result in cost-savings of millions of dollars to INS and EOIR in reduced detention time of aliens.

4 We also recommend that immigration court rules be amended to permit counsel to enter limited appearances for bond and custody proceedings. Immigration court rules currently bind lawyers who appear in bond cases to continue representation through the removal proceedings, unless an immigration judges grants withdrawal or substitution of counsel. Unfortunately, this rule deters lawyers in communities with large INS facilities from appearing in custody cases because of concerns that they will be bound to continue representation thereafter, whether or not their clients are released and whether or not they can afford counsel for the merits hearings. Individuals should not have to forego representation at the custody stage solely because available counsel is unable to commit to representation through the merits hearing. Therefore, to encourage lawyers to appear in these matters, we have repeatedly recommended changing the rules to permit limited appearances. This recommendation has never been adopted.

5 The ABA has numerous concerns about the treatment of minors in detention. Children languishing in juvenile jails without lawyers need immediate meaningful reform to ameliorate their plight. The INS' policy of routinely incarcerating unaccompanied minors is inconsistent with the nationally recognized juvenile justice standards, including the IJA-ABA Juvenile Justice Standards. Although the INS continues to improve the placements of juveniles, detained juveniles in removal proceedings - unlike juveniles in other types of proceedings - are not provided appointed counsel and are severely impeded in securing counsel to defend against expulsion. Therefore, we have recommended that incarcerated minors automatically receive custody redetermination hearings before immigration judges even if not specifically requested, be placed in the least restrictive and "most family-like setting," and have lawyers appointed for them who, if necessary, are paid for at government expense. For in-depth exposes on children's conditions of confinement and attorney access issues, see, e.g., Eliza Amon, "Access Denied: Children in INS Custody Have No Right to a Lawyer, Those Who Get One Risk Retaliation," Nat'l L.J., Apr. 16, 2001, at A1; Amy Fagen, "Bill Seeks Better Deal for Detained Immigrant Children," CQ Daily Monitor, May 29, 2001; Human Rights Watch, Detained and Deprived of Rights: Children in the Custody of the U.S. Immigration and Naturalization Service (Dec. 1998).

6 Under the pre-1996 law, an arriving individual who lacked travel documents or who was suspected of carrying invalid documents had the option of withdrawing his or her request for admission to the United States or appearing before an immigration judge for a formal exclusion hearing. Any person who feared returning to his or her home country could apply for asylum. The person also had a right to be assisted by a lawyer at no expense to the government. If the immigration judge denied entry, or asylum, and ordered exclusion, the person could appeal to the Board of Immigration Appeals and could later obtain federal court review through a writ of habeas corpus. Although a person was subject to detention, it was not uncommon for the INS to release ("parole") an asylum applicant while proceedings were pending. A final exclusion order carried a one-year bar on returning to the United States.

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