December 2, 2009

IX. Violation of the Right to Defend Against Deportation

 

Though deportation is not technically a criminal proceeding, it visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom. That deportation is a penalty—at times a most serious one—cannot be doubted. Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standard of fairness.[146]

Despite the US Supreme Court’s 1945 admonition about the need for meticulous care in deportation proceedings, transfers of detainees often interfere with their ability to present a defense, which in turn undermines the fairness of the entire procedure. The detrimental effects of transfer on a detainee’s ability to present a defense were emphasized time and again during our interviews with immigration attorneys for this report.[147] Detainees themselves were also deeply frustrated by the negative effect transfer was having on their deportation cases.

There are several ways in which transfer can impede a detainee’s defense. Immigration detainees often rely on family members, friends, and their relationships in churches and communities of origin to defend against deportation. The existence and strength of such relationships are one of the few bases in US law for a non-citizen to argue that he or she should not be deported. For example, in many cases in which the detainee can apply to cancel his or her deportation, the detainee’s spouse, parent, and/or child is a critical witness to establish that deportation would result in what the law defines as “exceptional and extremely unusual hardship.”[148]

Human Rights Watch interviewed a 61-year-old man from Mexico who came to the United States in November 1979. His immigration status and conviction would allow him to apply for “cancellation of removal” based on hardship to his legal permanent resident wife, four US citizen children, one of whom was gravely ill with a spinal injury, and 16 US citizen grandchildren. Nevertheless, he was struggling to present evidence of these relationships to the judge in Texas, since his family members were all in southern California and unable to travel to Texas.[149]

In other cases, a detainee may be able to defend against deportation based on a close family member’s status as a US citizen, or based on the resolution of a pending application to adjust his or her own status to one that would not result in deportation. Other detainees can defend against deportation by proving that they themselves are US citizens. In any of these scenarios, the detainee’s spouse, parent, and/or child is a critical witness in establishing the required family relationship. Proximity to one’s family may be the only way to gather the necessary evidence to defend against deportation.

For example, the US citizen stepfather of a young man facing deportation wrote to his congressman, begging him to stop his detained stepson’s transfer from Boston to Louisiana. The stepfather claimed his stepson was a US citizen due to the US citizenship of his biological father. The stepfather was honorably discharged from the US army in 1992, after seeing combat in the 1991 Gulf War and serving in Saudi Arabia and Germany. In Germany, he met and married his wife, and became stepfather to her then two-year-old son. He wrote to explain:

[T]here is even a chance that [name redacted] would be moved to a facility as far away as Louisiana.... I am asking your office for help in keeping [name redacted] in a Boston area facility, and for help in slowing down the process that would have [name redacted] deported and would break up our family. We need time to establish the fact to the US Government that [name redacted] is actually a US citizen, due to the US citizen status of his biological father.[150]

In asylum cases, detainees’ family members can sometimes provide the best evidence of the persecution their loved one might face if deported. For example, an Indonesian detainee of ethnic Chinese background told Human Rights Watch he was trying to claim asylum because of the persecution he and his siblings had faced in Indonesia. He was originally detained in Los Angeles, but was transferred to Texas where he was having a very difficult time getting evidence from his family and other sources about the persecution he had experienced and feared in the future:

The judge says she doesn’t know if what I am saying is true. The only document I have is a copy of my birth certificate. The people who can prove it are in California. I signed up as a dorm cleaner so I could ... buy a phone card. I saved up so I could try calling my brother and sisters [in Los Angeles], but I cannot get a hold of them.... I don’t even know if they know where I am.... If I was in California, it would be easier. I could get the information I need from my brother. I could find a lawyer. I’ve been in detention now for seven months. It’s getting more stressful. I think I’m just not going to appeal anymore. What else can I do?[151]

In still other cases, a detainee’s moral character is relevant to whether the court will find he or she must be deported. To establish moral character, employers, family members, community witnesses, and even victims of the detainee’s minor criminal offense can provide essential evidence.

For example, Esteban G. entered the United States from El Salvador as a refugee when he was 17 years old. His mother, sister, and stepfather are all US citizens and all reside in California. Esteban was taken into custody in Los Angeles, but “before my Mom and sister could get there to visit me” he was transferred to detention in Texas. He was facing deportation because of a drug possession conviction, for which he had been sentenced to probation. He told Human Rights Watch how difficult it has been for him to defend against his deportation, both because his documents were lost during the transfer and because his moral character is an issue in his case:

First of all, they didn’t send me all my property and papers, which I need for my case. It’s been three months since they transferred me from LA and I still don’t have my papers. I have filed five requests to get them. The officer said, “if you keep bothering me, the more time it will take.” They say they are deporting me for “trafficking,” but that is not what I was doing. My conviction is for possession of $20 of cocaine and $5 of marijuana. I have people in Los Angeles who can talk about my character, who know that I worked hard, went to high school, was always there for my family. I messed up when I got involved with the drugs. But trafficking? That’s not what I was convicted of—but where are my papers to prove it? Plus, the judge here says that the witnesses can’t go to court in LA and testify.[152]

As this case illustrates, there are also practical ways in which transfers can interfere with detainees’ ability to present a defense. In some cases, detainees lose access to law libraries after being transferred to contract county jails.[153] In others, detainees lose their legal documents during the transfer process.[154] Finally, family members and friends often provide the critical link between detainees and immigration counsel by helping detainees locate and retain counsel, as well as by assisting in collecting supporting documents and declarations. Transferred detainees in remote locations cannot get such help.

A legal permanent resident from the Dominican Republic detained in Texas who was facing deportation because of a domestic violence conviction explained that his entire family is in Pennsylvania, as are all of his documents. He told Human Rights Watch, “I had to call to try to get the police records myself. It took a lot of time. The judge got mad that I kept asking for more time. But eventually they arrived. I tried to put on the case myself. I lost.”[155]

The lack of proximity to relevant documents is an enormous hurdle for non-citizens transferred far away from the state in which they received their criminal conviction. This is because

the government frequently files criminal deportation charges against aliens without providing the proper court records to prove the conviction, and the IJ’s enter orders of deportation anyway—so the alien often has to obtain his own certified conviction and police records to disprove the government’s allegations.[156]

There are numerous federal court cases noting that the government sometimes fails to submit sufficient evidence in support of its claim that a particular non-citizen is deportable.[157] Therefore, a transferred detainee’s inability to obtain necessary documents from a jurisdiction far away from his or her place of post-transfer detention, even without a strong case against him or her, can have devastating results in his or her case.

In another example, a detainee transferred from southern California to Texas wrote to then Attorney General Alberto Gonzales:

I have no legal representation because I cannot afford one. Judge Rogers declined to release me on bond and remarked when I asked, that he would not grant a request to transfer venue to Riverside, California. All additional evidentiary documents or witnesses for my defense would be there.... California has been my home of record for most of my life. I do not pose a risk of flight—all family and relatives are residents of California. I do not pose a danger to anyone.[158]

Transferring detainees away from key witnesses and evidence effectively denies them an opportunity to present a defense against removal, which is a violation of their human rights. Article 13 of the ICCPR states:

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.[159]

The UN Human Rights Committee, which monitors state compliance with the ICCPR, has interpreted the phrase “lawfully in the territory” to include non-citizens who wish to challenge the validity of the removal order against them. In addition, the committee has made this clarifying statement: “if the legality of an alien’s entry or stay is in dispute, any decision on this point leading to his expulsion or deportation ought to be taken in accordance with article 13.... An alien must be given full facilities for pursuing his remedy against expulsion so that this right will in all the circumstances of his case be an effective one.”[160]

Despite the principle that the ability to present evidence in one’s favor is essential to a fair hearing and despite the many ways in which detaining non-citizens near to their families and communities of origin facilitates access to such evidence, there is no requirement that ICE staff weigh whether a detainee has family and community relationships nearby when making a transfer decision. Therefore, detainees are routinely transferred to remote locations where travel costs or immigration judges’ refusals to allow video or telephonic appearances prevent the presentation of testimonial evidence essential to the defense against removal.

Despite the serious problems transfer can cause for detainees as they try to present their defenses, US courts have been decidedly unsympathetic to these concerns. As one court states:

The INS affords detainees the right to present witnesses and evidence at their removal proceedings, but it does not afford detainees the means for getting those witnesses or evidence to the hearings. The fact that Louisiana may be inconvenient for the Petitioner’s witnesses [located in Connecticut] is insufficient to establish the prejudice required to prevent a transfer.[161]

 

[146]Bridges v. Wixon, 326 U.S. 135, 154 (1945).

[147] Human Rights Watch telephone interviews with Rebecca Sharpless, supervising attorney at Florida Immigrant Advocacy Center, November 8, 2007; Benita Jain, November 7, 2007; Megan Mack, November 14, 2007; Elizabeth Badger, November 9, 2007; Paromita Shah, December 6, 2007.

[148] INA Section 240A(b)(1)(D), 8 U.S.C. Section 1229b(b)(1)(D) (nonpermanent residents); INA Section 240A(b)(2)(A)(v), 8 U.S.C. Section 1229b(b)(2)(A)(v) (abused spouses).

[149] Human Rights Watch interview with Antonio G. (pseudonym), Florence Correction Center, Florence, Arizona, May 2, 2008.

[150] Letter to Representative Marty Meehan from [name redacted], June 29, 2006 (provided to Human Rights Watch in response to our FOIA request to ICE regarding detainee transfers) (letter on file with Human Rights Watch).

[151] Human Rights Watch interview with Dian K., April 25, 2008.

[152] Human Rights Watch interview with Esteban G. (pseudonym), South Texas Detention Complex, Pearsall, Texas, April 25, 2008.

[153] Human Rights Watch telephone interview with Benita Jain, November 7, 2007.

[154] Ibid.; Lindsay Marshall, November 14, 2007; Tom Jawetz, January 8, 2007; Kathleen Sullivan, Detention Project manager and senior attorney, Catholic Legal ImmigrationNetwork Inc., Washington, DC, December 19, 2007; Paromita Shah, December 6, 2007.

[155] Human Rights Watch interview with Miguel A. (pseudonym), Port Isabel Service Processing Center, Los Fresnos, Texas, April 23, 2008.

[156] Email to Human Rights Watch from attorney Stephanie Goldsborough, San Francisco, California, September 14, 2009.

[157]Cheuk Fung S-Yong v. Holder, 2009 WL 2591671, *5 (9th Cir. 2009) (“There are no documents of conviction in the administrative record-indeed, there are no documents at all in the record, other than the government’s two-page notice to appear-and it is impossible to tell from the hearing transcript the exact nature of the document the immigration judge relied upon.”) (emphasis in original); Ba v. Gonzales, 228 Fed. Appx. 7, 10 (2d Cir. 2007) (“the IJ failed to offer a reasoned explanation for deferring to an unauthenticated print-out of a RAP sheet rather than the identity documents submitted by Ba, especially in light of the fact that the name and birth date discrepancies were minor.”); Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 683 (9th Cir. 2005) ( “In this case, the government’s proof (even if it were admissible) is not sufficient to carry its ‘very demanding’ burden. A single affidavit from a self-interested witness not subject to cross-examination simply does not rise to the level of clear, unequivocal, and convincing evidence required to prove deportability.”).

[158] Letter to Attorney General Alberto Gonzales from (name redacted), January 18, 2007 (provided to Human Rights Watch in response to our FOIA request to ICE regarding detainee transfers) (letter on file with Human Rights Watch).

[159]ICCPR, art. 13 (emphasis added).

[160] UN Human Rights Committee, “The position of aliens under the Covenant,” General Comment No. 15, 1986, http://www.unhchr.ch/tbs/doc.nsf/0/bc561aa81bc5d86ec12563ed004aaa1b?Opendocument (accessed November 16, 2009), paras. 9 and 10.

[161]Avramenkov v. INS, 99 F.Supp.2d 210, 214 (D. Conn. 2000).