December 2, 2009

V. Efficient Warehousing: Immigration and Customs Enforcement’s Power to Transfer Detainees

The determining factor in deciding whether or not to transfer a detainee is whether the transfer is required for [ICE’s] operational needs.[25]

Immigration Transfers Compared with Criminal Transfers

Transfers should be expected in any large, multi-institutional system of incarceration. The fact that they occur in ICE facilities is not surprising, nor would it be a cause for alarm if reasonable limits were in place. If the agency worked to emulate best practices on transfers set by state and federal prison systems, it would reduce the chaos and limit harmful rights abuses. Instead, ICE claims an almost unfettered power to transfer detainees at will, resulting in a disorderly system of detainee musical chairs that often violates non-citizens’ rights.

While some detainees are held in the ICE facility or contract facility closest to the place where they are taken into custody, ICE claims the legal authority to transfer immigrants to detention anywhere in the country—from the Dale Correctional Facility in Vermont, to Otero Service Processing Center in New Mexico, and from the Northwest Detention Facility in Tacoma, Washington, to the Oakdale Federal Detention Center in Louisiana. ICE claims that its authority to transfer detained immigrants is contained in section 241 of the Immigration and Nationality Act, which states:

The Attorney General shall arrange for appropriate places of detention for aliens detained pending removal or a decision on removal. When United States Government facilities are unavailable or facilities adapted or suitably located for detention are unavailable for rental, the Attorney General may expend ... amounts necessary to acquire land and to acquire, build, remodel, repair, and operate facilities (including living quarters for immigration officers if not otherwise available) necessary for detention.[26]

This language, which focuses on ICE’s authority to construct detention centers (“more of a bricks and mortar orientation”[27]), does not clearly address ICE’s transfer power. Nevertheless, the provision has been cited by courts as the source of that power, and the interpretation has gone largely unchallenged.[28] The agency claims that “[t]he INA contains no language limiting ICE’s ability to move detainees from one facility to another.”[29] Courts have tended to agree, responding to concerns expressed by detainees about long-distance transfers with relative indifference.[30]

It is hardly surprising that ICE, believing it has limitless transfer powers, pays little attention to a non-citizen’s prior place of residence when deciding where to transfer him or her. Former Assistant Secretary Julie Myers repeatedly emphasized that ICE maintains the discretion to detain people wherever there is bed space.[31] As a result, the government reports publicly that “[d]etainees are often transferred from one facility to another.”[32] Immigrants are treated like so many boxes of goods—shipped to the warehouse with the cheapest and largest amount of space available to store them. One ICE official told Human Rights Watch, “we transfer where beds are available. It’s out of operational necessity.”[33] A report released in October 2009 by Dr. Dora Schriro, special advisor on ICE detention and removal, stated:

Although the majority of arrestees are placed in facilities in the field office where they are arrested, significant detention shortages exist in California and the Mid-Atlantic and Northeast states. When this occurs, arrestees are transferred to areas where there are surplus beds.[34]

In discussions with Human Rights Watch, ICE has claimed that the frequency of detainee transfers and its inability to limit their use is partly related to its arrangements with Intergovernmental Service Agreement facilities (IGSAs), which are state and local jails that contract with ICE to hold detainees. In the case of detainees in the custody of one of these facilities, an ICE official told Human Rights Watch,

They can pick up the phone and say “I want this guy out of here by the end of the day.” We can’t make the facility keep the person, so we have to transfer. We don’t transfer as a punitive measure, we’re not out to get them ... but when a facility requests it, we have to move the detainee out.[35]

Data analysis conducted for this report confirms ICE’s explanation: the majority of detainee transfers originate from the patchwork of local prisons and jails operating under IGSA contracts with ICE. ICE’s haphazard system of placing detainees in a variety of facilities, many of which it has very little control over, helps to explain why its transfer system is equally haphazard.

ICE’s chaotic transfer system stands in marked contrast to operational standards used in state and federal prison systems. Although immigration detainees are not technically being punished, transfers of criminal inmates held in state and federal jails and prisons are more closely regulated than transfers of immigrant detainees held in ICE facilities.

Some of the limits on transfers in the criminal system can be attributed to the Sixth Amendment to the US Constitution,[36] which provides criminal defendants the right to face trial in the jurisdiction in which their crimes are alleged to have occurred. As a result, nearly all criminal defendants are held near the location of their trial, and cannot be transferred while court proceedings are ongoing. The federal Bureau of Prisons’ (BOP) inmate transfer protocol makes explicit mention of the need to coordinate with the federal court system before transfers are implemented. It contemplates that even after the trial is over, criminal defendants may need to be “retained at, or transferred to, a place of confinement near the place of trial or the court of appeals, for a period reasonably necessary to permit the defendant to assist in the preparation of his or her appeal.”[37] The protocol continues:

Ordinarily, complicated jurisdictional or legal problems should be resolved before transfer. Ordinarily, the sending Case Management Coordinator will determine if an inmate has legal action pending in the district in which confined. If so, the individual should not be transferred without prior consultation.[38]

Jeanne Woodford, former director of the California Department of Corrections and former warden at California’s San Quentin State Prison, explains that in California’s prison system:

During trial, most inmates have court holds on them. You cannot transfer an inmate who has a court hold on him or her. The prosecuting authority will come to pick the inmate up for trial.... There should be court holds in the immigration system. It really is very unfair to start a court case in New Jersey and then transfer the inmate to California.[39]

However, there is no system of “court holds” in the immigration system, and the prosecuting authority—the federal government—is of the view that immigrants can be detained anywhere in the United States. In addition, immigrant detainees enjoy no right to face deportation proceedings in the state or locality in which their immigration law violation allegedly occurred. Therefore, as discussed later in this report, immigrant detainees are routinely transferred far away from their attorneys, key witnesses, and evidence in their trials.

Transfers are common in the criminal context once court proceedings have ended, but even then, transfers are often regulated by policy. Acceptable reasons for transfers in the federal prison system arise when a particular inmate needs to be incarcerated at a higher or lower security level, is nearing his or her release date and should be transferred “within 500 miles of his or her release residence,”[40] has medical or psychiatric needs that cannot be addressed at the current institution, needs to participate in a program not offered at the current institution, or needs to be sent “temporarily” to another facility for security reasons (often caused by overcrowding).[41]

Similarly, Jeanne Woodford believes that some transfers in the criminal system are appropriate and necessary

[t]o get people access to facilities that can meet their needs—be they mental health, drug treatment, educational, or vocational training. It’s appropriate to transfer people for medical and mental health needs. It’s often too costly to provide for intensive medical needs in each and every facility and it is better to address some of these needs in one place. Of course, transfers should occur only because the medical treatment cannot be accommodated in the original facility.[42]

Although access to medical care is one of ICE’s stated rationales for detainee transfers, none of the detainees interviewed by Human Rights Watch for this report had been transferred for medical reasons. Similarly, none of the attorneys interviewed for this report recalled ever representing a client who had been transferred to meet his or her medical needs. Indeed, research by our organization and others has documented serious problems with discontinuity in detainees’ medical care due to medications and records failing to follow when a detainee is transferred between facilities. ICE sends only a summary of a detainee’s medical records when sending him or her to one of the state and county jails where ICE rents bed space.[43]

Finally, criminal systems track transfers in computerized databases with much more rigor than ICE. For example, the BOP transfer protocol requires that the reason for transfer and whether or not an inmate is eligible for a parole hearing must be entered into the central computer and approved by superiors prior to any transfer.[44] Most of the information relating to ICE transfers is not uploaded into a centralized system; it is sent with the detainee in hard copy on a series of forms and files. Moreover, the reasons for transfer or eligibility for bond are never tracked.[45] In addition, in marked contrast to ICE’s policies, most prison inmates can be easily located through a state or federal prisoner location system, which is accessible to the public and in many cases is updated every 24 hours.[46] There is no similar publicly accessible immigrant detainee locator system managed by ICE, meaning that detainees can be literally “lost” from their attorneys and family members for days or even weeks after a transfer. The lack of such a locator system prompted ICE Special Advisor Schriro to recommend in her October 2009 report that “ICE should create and maintain a current detainee locator system on the ICE website.”[47]

While it is unrealistic for ICE to completely cease transferring detainees, implementing procedures and controls on transfers akin to those already in place in the criminal context would go a long way toward protecting detainees’ rights. Unfortunately, the agency has refused to do anything more than adopt a vaguely worded and unenforceable set of standards to govern its transfer power.

ICE’s Internal Transfer Standards

In 2000, the Immigration and Naturalization Service (ICE’s predecessor) adopted a set of detention standards to provide minimum safeguards for the fair and humane treatment of detainees.[48] These standards were subsequently revised in June 2004[49] and again by ICE in December 2008 after a lengthy review process that included input from nongovernmental organizations.[50] The detention standards are merely internal agency guidelines and do not have the binding authority of federal regulations or statutory law.

Three subsets of those standards are most important from a rights perspective: first, the standards on permissible reasons for transfer; second, the standards on when and how detainees are to be informed that they are being transferred; and third, the standards on when and how detainees’ attorneys are to be informed that their clients are being transferred.

The 2004 standards provided a vague set of reasons for which ICE may transfer detainees, including medical needs, change of venue, recreation, security, and “other needs of ICE,” which included “various reasons, such as to eliminate overcrowding or to meet special detainee needs, etc.”[51] Nowhere was ICE required to indicate which of these amorphous reasons was motivating a particular transfer decision.

In addition, when a detainee was being transferred in accordance with the 2004 standards, he or she was informed only “immediately prior” to leaving the pre-transfer facility and would “normally not be permitted to make or receive any telephone calls.”[52]Finally, the detainee’s attorney was notified of the transfer only once the detainee was “en route” to the new detention facility.[53]

Because Human Rights Watch believed these vague standards permitted human rights violations to occur, we were pleased to learn that ICE and its department of Detention and Removal Operations were reviewing them and would be issuing a new set of standards in 2008. We brought our concerns to the attention of ICE in a series of letters and through participation in several in-person meetings with senior ICE officials and colleague organizations.[54] Unfortunately, the revised transfer standards issued in December 2008 were almost no improvement over the old.

Once again, although this time even more explicitly, the agency states that its own operational concerns must dictate the transfer decision: “[t]he determining factor in deciding whether or not to transfer a detainee is whether the transfer is required for operational needs, for example, to eliminate overcrowding.”[55] The standards go on to state that detainees may be transferred after taking into account security, legal representation, change of venue, and medical needs.[56]

While operational needs are the “determining factor” and therefore override all other considerations, the inclusion of legal representation as a factor to take into account provides some improvement over the 2004 standards:

ICE/DRO will consider whether the detainee is represented by legal counsel. In such cases, ICE/DRO shall consider alternatives to transfer, especially when the detainee is represented by local, legal counsel and where immigration court proceedings are ongoing.[57]

In addition, the 2008 standards state that “[w]hile ICE/DRO transfers detainees from one facility to another for a variety of reasons, a transfer of a detainee shall never be retaliatory.”[58]

With regard to informing detainees of an impending transfer, the 2008 standards are virtually identical to the 2004 standards, stating that a “detainee shall not be informed of the transfer until immediately prior to leaving the facility.” After being informed, “the detainee shall normally not be permitted to make or receive any telephone calls.”[59]

Finally, the 2008 standards provide attorneys even less notice of their clients’ transfers than the 2004 standards, stating that “the attorney shall be notified of the transfer once the detainee has arrived at the new detention location.”[60] By contrast, the 2004 standards provided that attorneys should be informed once their client was “en route” to the new location. In reality, this distinction has little effect on a detainee’s rights, since in either case the attorney has no chance to petition a court to stop the transfer.[61]

Not only are the 2008 standards unacceptably vague, they are also not codified as federal regulations, and cannot be enforced in court. The Department of Homeland Security (DHS) has refused to turn the standards into regulations, saying that the 2008 standards are preferable to enforceable regulations because they provide the “necessary flexibility to enforce standards that ensure proper conditions of confinement.”[62]

 

[25] US Immigration and Customs Enforcement, “Operations Manual ICE Performance Based National Detention Standards,” part 7, chapter 41, December 2, 2008, http://www.ice.gov/doclib/PBNDS/pdf/transfer_of_detainees.pdf (accessed November 4, 2009), p. 2.

[26] Immigration and Nationality Act Section 241, 8 U.S.C. Section 1231 (g).

[27]Aguilar v. United States Immigration and Customs Enforcement, 510 F.3d 1, 20 (1st Cir. 2007).

[28]Avramenkov v. INS, 99 F. Supp. 2d 210, 213 (D. Conn. 2000) (“Congress has squarely placed the responsibility of determining where aliens are to be detained within the sound discretion of the Attorney General”); Van Dinh v. Reno, 197 F.3d 427, 433 (10th Cir. 1999) (“a district court has no jurisdiction to restrain the Attorney General’s power to transfer aliens to appropriate facilities by granting injunctive relief”); Sasso v. Milhollan, 735 F. Supp. 1045, 1046 (S.D. Fla. 1990) (holding that the attorney general has discretion over location of detention); Rios-Berrios v. INS, 776 F.2d 859, 863 (9th Cir. 1985) (“We wish to make ourselves clear. We are not saying that the petitioner should not have been transported to Florida. That is within the province of the Attorney General to decide.”).

[29] Letter from Susan M. Cullen, director of policy, US Immigration and Customs Enforcement, to Human Rights Watch, August 11, 2008 (letter on file with Human Rights Watch).

[30]Earle v. Copes, 2005 WL 2999149, *1 (November 8, 2005, W.D. La.) (“the transfer of a detained alien from one state to another does not raise any constitutional concerns even if representation of the alien may be less convenient”); Gandarillas-Zambrana v. Board of Immigration Appeals, 44 F.3d 1251, 1256 (4th Cir. 1995) (“there is nothing inherently irregular … about the [non-citizen’s] transfer from Virginia to Louisiana”); Sasso v. Milhollan, 735 F.Supp. 1045, 1047 n.6 (S.D. Fla. 1990) (attorney general had not abused his discretion by ordering hearing in Texas, despite claim that non-citizens’ witnesses were located in Florida and would not be able to afford travel to Texas to appear at hearing there); Committee of Central American Refugees v. INS, 682 F. Supp. 1055, 1060 (N.D. Cal. 1988) (regular transfers from San Francisco district to El Centro, California, or Florence, Arizona, did not rise to the level of due process violations).

[31] ICE Assistant Secretary Julie Myers, untitled contribution to Spring 2007 Liaison Meeting between ICE officials and American Immigration Lawyers Association, March 20, 2007 (minutes on file with Human Rights Watch).

[32] Department of Homeland Security, Office of Inspector General, “Review of U.S. Immigration and Customs Enforcement’s Detainee Tracking Process,” OIG-07-08, November 2006, http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_07-08_Nov06.pdf (accessed November 4, 2009), p. 2.

[33] Human Rights Watch interview with Tae Johnson, acting unit chief, Detention Compliance Unit, Office of Detention and Removal Operations, Washington, DC, May 12, 2008.

[34]Schriro Detention Report, October 6, 2009, http://www.ice.gov/doclib/091005_ice_detention_report-final.pdf, p.6.

[35] Human Rights Watch interview with Sandra Myles, associate legal advisor, Enforcement Law Division, Office of the Principal Legal Advisor, Washington, DC, May 12, 2008.

[36] US Constitution, Sixth Amendment (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.”).

[37] US Department of Justice, Federal Bureau of Prisons, Program Statement, “Inmate Security Designation and Custody Classification,” chapter 7, September 12, 2006, http://www.bop.gov/policy/progstat/5100_008.pdf (accessed November 4, 2009), p. 11.

[38] Ibid.

[39] Human Rights Watch telephone interview with Jeanne Woodford, former director, California Department of Corrections, and former warden, San Quentin State Prison, northern California, August 13, 2009.

[40] US Department of Justice, “Inmate Security Designation and Custody Classification,” chapter 7, http://www.bop.gov/policy/progstat/5100_008.pdf, p. 4.

[41] Ibid., p. 5.

[42] Human Rights Watch telephone interview with Jeanne Woodford, August 13, 2009.

[43] See Human Rights Watch, Detained and Dismissed: Women’s Struggles to Obtain Health Care in United States Immigration Detention, March 17, 2009, http://www.hrw.org/en/reports/2009/03/16/detained-and-dismissed-0; Human Rights Watch, Chronic Indifference: HIV/AIDS Services for Immigrants Detained by the United States, December 5, 2007, http://www.hrw.org/en/reports/2007/12/05/chronic-indifference.

[44] US Department of Justice, “Inmate Security Designation and Custody Classification,” chapter 7, http://www.bop.gov/policy/progstat/5100_008.pdf, p.2.

[45] ICE is not required to track the reason for transfer, nor is it required to track a detainee’s eligibility for a bond hearing. US Immigration and Customs Enforcement, “Operations Manual ICE Performance Based National Detention Standards,” part 7, chapter 41, http://www.ice.gov/doclib/PBNDS/pdf/transfer_of_detainees.pdf, pp. 5-11, 15.

[46] Human Rights Watch telephone interview with Jeanne Woodford, August 13, 2009; US Department of Justice, “Inmate Security Designation and Custody Classification,” chapter 7, http://www.bop.gov/policy/progstat/5100_008.pdf, pp.2-3 (requiring the entry of the transfer into the federal SENTRY system prior to transfer of the inmate); Florida Department of Corrections, “Frequently Asked Questions Regarding Inmate Transfers,” http://www.dc.state.fl.us/oth/inmates/transfers.html (accessed November 4, 2009) (“Our website’s Inmate Population Information Search database is updated every 24 hours. A completed transfer is reflected on the inmate’s detail record page in the “Current Facility” data field.”).

[47] Schriro Detention Report, October 6, 2009, http://www.ice.gov/doclib/091005_ice_detention_report-final.pdf, p.29.

[48] US Immigration and Naturalization Service, “Detention Operations Manual,” September 20, 2000, http://www.ice.gov/pi/dro/opsmanual/index.htm (accessed November 4, 2009).

[49] US Immigration and Customs Enforcement, Detention Operations Manual, June 16, 2004.

[50] US Immigration and Customs Enforcement, “Operations Manual ICE Performance Based National Detention Standards,” http://www.ice.gov/partners/dro/PBNDS/index.htm.

[51] The standards state in full the following reasons for transfer: “Medical – The Division of Immigration Health Services (DIHS) has the authority to recommend that a detainee in need of specialized or long-term medical care be transferred to a facility that can meet those needs. The DIHS Medical Director or designee must approve transfers for medical reasons in advance. Medical transfers will be coordinated through the local ICE office of jurisdiction using established procedures. Change of Venue – A change of venue by the Executive Office of Immigration Review from one jurisdiction to another. Recreation – When the required recreation is not available, a detainee will have the option of transferring to a facility that offers the required recreation. Security – Security transfers are conducted, for example, when the detainee becomes a threat to the security of the facility, e.g. the detainee is violent or has caused a major disturbance or is threatening to cause one, or a situation exists that is threatening to staff or other detainees and cannot be controlled through the use of segregation housing. In these cases, detainees may be transferred to a higher-level facility. Other Needs of ICE – Detainees may be transferred to other facilities for various reasons, such as to eliminate overcrowding or to meet special detainee needs, etc.” US Immigration and Customs Enforcement, Detention Operations Manual, “Detainee Transfer,” June 16, 2004, http://www.ice.gov/doclib/pi/dro/opsmanual/DetTransStdfinal.pdf (accessed November 4, 2009), pp. 2-3.

[52] “The detainee shall not be notified of the transfer until immediately prior to leaving the facility. At that time, the detainee shall be notified that he/she is being moved to a new facility within the United States, and not being deported…. Following transfer notification, the detainee shall normally not be permitted to make or receive any telephone calls or have contact with any detainee in the general population until the detainee reaches the detention facility.” Ibid., p. 2.

[53] “When counsel represents a detainee, and a G-28 has been filed, ICE shall notify the detainee’s representative of record that the detainee is being transferred from one detention location to another…. For security purposes, the attorney shall not be notified of the transfer until the detainee is en route to the new detention location.” Ibid., p. 2.

[54] Human Rights Watch meeting with various ICE officials, May 2008; letters to Assistant Secretary Julie Myers, Immigration and Customs Enforcement, June 24, 2008, and October 16, 2008 (letters on file with Human Rights Watch); Human Rights Watch meeting with NGO colleagues and various ICE officials, September 2008. We note that other colleague organizations also raised similar concerns. Letter to Assistant Secretary Julie Myers from American Civil Liberties Union, comments on the draft ICE/DRO Performance-Based Detention Standards, February 22, 2008.

[55] US Immigration and Customs Enforcement, “Operations Manual ICE Performance Based National Detention Standards,” part 7, chapter 41, http://www.ice.gov/doclib/PBNDS/pdf/transfer_of_detainees.pdf, p. 2.

[56] The additional factors to be taken into account are, in full: “In addition, a specific detainee may be transferred to meet the specialized needs of the detainee. In making the determination as to whether to transfer a detainee, ICE/DRO will take into account: Security. A detainee may be transferred to a higher-level facility because of circumstances that cannot adequately be controlled through the use of segregation housing. Such security reasons might include, for example: When the detainee becomes a threat to the security of the facility; When the detainee is violent or has caused a major disturbance or is threatening to cause one; or When a detainee’s behavior or other circumstances present a threat to the safety of staff or other detainees. Legal Representation. ICE/DRO will consider whether the detainee is represented by legal counsel. In such cases, ICE/DRO shall consider alternatives to transfer, especially when the detainee is represented by local, legal counsel and where immigration court proceedings are ongoing. Medical. The Division of Immigration Health Services (DIHS) may recommend that a detainee in need of specialized or long-term medical care be transferred to a facility that can better meet those needs. The DIHS Medical Director or designee must approve transfers for medical reasons in advance. Medical transfers shall be coordinated through the local ICE/DRO office of jurisdiction using established procedures. Change of Venue. A detainee may be transferred from one jurisdiction to another to accommodate a change in venue by the Executive Office for Immigration Review (EOIR).” Ibid.

[57] Ibid.

[58] Ibid.

[59] “The detainee shall not be informed of the transfer until immediately prior to leaving the facility, at which time he or she shall be notified that he or she is being moved to a new facility within the United States and not being removed…. Following notification, the detainee shall normally not be permitted to make or receive any telephone calls or have contact with any detainee in the general population until the detainee reaches the detention facility.” Ibid., p. 3.

[60] Ibid. (emphasis added).The full standard states: “When a detainee is represented by legal counsel, and a form G-28 has been properly executed and filed…. The attorney shall be notified of the transfer once the detainee has arrived at the new detention location. Generally, notification will be made as soon as practicable, but no later than 24 hours after the transfer. When there are special security concerns, the Deportation Officer may delay the notification, but only for the period of time justified by those concerns.”

[61] In fact, even if counsel has enough time to protest a client’s transfer, many courts have interpreted the immigration laws to strip the courts of power to review any decision to transfer a detainee. Van Dinh v. Reno, 197 F. 3d 427, 434 (10th Cir. 1999). Courts are particularly unable to review transfer decisions if these occur before the NTA is filed. US law grants jurisdiction to federal courts over removal proceedings, and removal proceedings do not commence until the NTA is filed, so any actions prior to the filing of the NTA (such as transfer or the timing of when to file the NTA) are generally seen as unreviewable. Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 599 (9th Cir. 2002) (“We construe § 1252(g), which removes our jurisdiction over ‘decision[s] ... to commence proceedings’ to include not only a decision in an individual case whether to commence, but also when to commence, a proceeding”); Richards-Diaz v. Fasano, 233 F.3d 1160, 1165 (9th Cir. 2000) (“We are in no position to review the timing of the Attorney General’s decision to ‘commence proceedings.’”).

[62] Letter from Jane Holl Lute, deputy secretary of the Department of Homeland Security, to Michael Wishnie and Paromita Shah, July 24, 2009, http://www.nationalimmigrationproject.org/DHS%20denial%20-%207-09.pdf (accessed November 4, 2009) (denying the “Petition for Rulemaking to Promulgate Regulations Governing Detention Standards for Immigration Detainees.”).