December 2, 2009

X. Unfair Treatment before the Courts

It is obviously repugnant to one’s sense of justice that the judgment meted out ... should depend in large part on a purely fortuitous circumstance....[162]

Deportation, though not technically recognized under US law as a form of punishment, is a coercive exercise of state power that can cause a person to lose her ability to live with close family members in a country she may reasonably view as “home.” Most deportees are barred, either for decades or in many cases for the rest of their lives, from ever reentering the United States. Similarly, the decision to grant an individual asylum from persecution is a matter of tremendous significance, even of life and death. Given the serious interests at stake, human rights law requires that the decision to deport or to grant asylum be based on procedures that are scrupulously fair. Unfortunately, the haphazard system of detainee transfers undermines the fairness of immigration proceedings because the law applied to detainees’ cases is often changed midstream.

Not only are these changes in applicable law contrary to fundamental notions of fairness, they may also contravene international standards on equal treatment under the law. In important ways, immigrants facing removal are akin to persons accused of crimes in the United States. While immigrants facing removal are not technically in criminal proceedings, the penalties they face, detention and deportation, are severe infringements on their liberty—much like criminal defendants who face prison time as punishment. In addition, many immigrants are facing deportation because they violated a particular state’s criminal laws. However, unlike criminal defendants who normally cannot be transferred until their trial is complete, immigrants are routinely transferred away from the jurisdiction in which they were arrested and the applicable law literally changes beneath their feet.

Transferred immigrants are disadvantaged and denied equal treatment as compared with most criminal defendants in the United States. On multiple occasions documented by Human Rights Watch, ICE’s decision to transfer a detainee away from the jurisdiction of his or her arrest has resulted in the application of substantive legal standards that are significantly less beneficial to the alien’s application for relief from deportation than the law would have been had the alien not been transferred.

Whenever a detainee is transferred between two of the 12 federal circuit courts of appeals, and his or her removal hearings take place in the new circuit, he or she will have that circuit’s interpretation of federal laws applied to his or her case.[163] Since the federal circuit courts of appeals vary in their interpretations of criminal offenses, the transfer of a detainee can affect the way the court will interpret whether the criminal offense he is being deported for is an “aggravated felony.” This is a very important issue for non-citizens facing deportation, because if their convictions are considered “aggravated felonies” under immigration law, they will be placed into summary deportation procedures. In these summary procedures, a non-citizen cannot ask a judge to consider canceling his deportation even if he can show that his crime was relatively minor or his connections to the United States (such as family relationships) are strong. If a detainee is transferred to the jurisdiction of a court that considers his criminal conviction (for which he has already served his criminal punishment) an aggravated felony, there is very little he can do to defend against his banishment from the United States.

Imagine a non-citizen who has lived as a lawful permanent resident in Detroit, Michigan, and who has two misdemeanor convictions under Michigan law for simple possession of marijuana. After paying his fines or serving his criminal sentence, and assuming he is detained by ICE in Michigan and his deportation hearings proceed there, his two misdemeanor offenses would not be considered aggravated felonies. In other words, they would not be considered serious enough to bar him from asking the immigration judge to allow him to remain in the United States.[164]

However, if ICE decided to transfer him to detention in Texas or Louisiana, a likely outcome as this report has demonstrated, the law applied to his situation would be completely different. In these post-transfer locations, his two state misdemeanor convictions would be considered aggravated felonies and would bar him from being able to ask the judge to cancel his removal.[165] Transfers between other parts of the country would bring similar results, based on differing interpretations of what constitutes an aggravated felony. Such an outcome rarely affects persons accused of violating federal and state criminal laws, whose trials nearly all take place in the jurisdiction where the crime occurred.

Transfer Leads to Deportation after 22 Years of Legal Residence

Jeffrey J., a lawful permanent resident, was interviewed by Human Rights Watch in Texas.[166] He was arrested and detained by ICE in New York, where his two crimes of drug possession did not constitute an aggravated felony.[167] Based on his legal permanent resident status, 22 years of legal residency, and strong family relationships in the US, he would have been eligible for cancellation of removal in New York.

After three months of detention in New York and New Jersey, however, he was transferred to Texas, where the immigration judge interpreted applicable Fifth Circuit law to bar his claim to relief from removal. The Board of Immigration Appeals declined to reverse that ruling and Jeffrey was deported from the United States. In a subsequent phone call to Human Rights Watch from Jamaica, Jeffrey spoke of his “sadness and depression,” not knowing anyone in Jamaica, and missing his home and family in the United States.[168]

The case of Rafael S., who was interviewed by Human Rights Watch in detention in Texas, illustrates this problem. Rafael was arrested and detained by ICE in California, where he retained an immigration attorney during the two weeks he was detained there.[169] Under applicable law in the Ninth Circuit, Rafael’s second offense for drug possession, in which he was neither charged nor convicted as a recidivist, would not constitute an aggravated felony.[170] As a result, based on his legal permanent resident status, 10 years of lawful residence, and strong family relationships in the US, he would be eligible for cancellation of removal. Nevertheless, he was transferred to Texas, where under applicable Fifth Circuit law, his second drug possession offense is likely to be interpreted to constitute an aggravated felony and thereby bar him from applying for cancellation of removal.[171]

This same issue arises with detainees’ eligibility to change their immigration status to one that will exempt them from deportation based on their close family relationships inside the United States. The Fifth Circuit Court of Appeals has determined that detainees in Texas, Mississippi, and Louisiana may not change their immigration status in this way if they have certain types of criminal convictions.[172] If these same immigrants are detained in the Ninth or Tenth Circuits, such convictions are not determinative.[173]

In still other cases, a non-citizen may have accepted a plea bargain in his or her criminal case in reliance on that jurisdiction’s interpretation of the conviction as a non-deportable offense. Later, if this same individual is transferred to a jurisdiction where his or her guilty plea renders him or her deportable—an occurrence that he or she obviously could not have foreseen at the time of the plea—he or she may have serious regrets about his or her decision not to fight the case.

Finally, the Fifth Circuit holds to the view that even if a non-citizen’s criminal conviction has been subsequently vacated (meaning that the criminal court has rendered the conviction void based on procedural or substantive errors at trial), it is still considered a “conviction” for the purposes of immigration law. This means that an immigrant who was convicted of a crime in Illinois, for example, but whose conviction was vacated because of errors at trial, if transferred to detention in Texas would still be subject to deportation based on that conviction.[174]

Transfers Affect Ability of Refugees to Receive Asylum

Refugees (defined as non-citizens with a well-founded fear of persecution based on one of the grounds enumerated in the Refugee Convention) are entitled to apply for and be granted asylum in the United States.[175]

Whether or not a particular non-citizen is granted asylum in the United States often involves fundamental questions of life and death. However, because so many asylum seekers in the United States are subject to mandatory detention (at least 16,000 new asylum seekers were detained during each of 2002 and 2003),[176] they are often transferred between detention centers throughout the United States and subject to the vagaries of different interpretations of the law based on where they are transferred.

A statistical study published in the Stanford Law Review in November 2007 revealed striking differences in the propensities of each of the circuit courts to reconsider (or “remand”) the asylum applications of individuals from 15 countries of origin, who had been unsuccessful in having refugee status recognized at the lower levels of the process. The study’s authors excluded countries whose nationals were usually not granted asylum in the lower levels of the asylum process. Eight of the eleven circuits that hear asylum appeals had rates of remand that were between 8 percent and 31 percent. But the Fourth, Fifth, and Eleventh Circuits all had remand rates under 5 percent. As noted previously, of these three circuits with very low remand rates, the Fifth Circuit receives the largest number of transferred detainees, and the Eleventh Circuit receives the third largest number. In each case, some of the transferred detainees are refugees seeking asylum, and yet by accident of transfer they have ended up in the circuits least likely to require lower courts to take a second look at their asylum applications. As the authors of the Stanford study recognized,

[A]ll of these circuits are applying the same national asylum law, and it seems odd to us that the rights of refugees seeking asylum in the United States should turn significantly on the region of the United States in which they happen to file their applications.[177]

Substantive interpretations of asylum law also vary by circuit. Human Rights Watch interviewed a woman in Arizona who had been living in Ohio prior to her arrest and detention. She explained that she had been forced to undergo female genital mutilation and several years later fled her native Guinea when she became the mother of a girl whom she wanted to protect from undergoing this same procedure. Had she been detained and put into deportation procedures in Ohio, where Sixth Circuit law applied, this woman would have had a strong chance of being granted asylum.[178] If she had been detained and undergone deportation procedures in the neighboring Seventh Circuit, she most likely would have had her claims denied.[179] However, she was transferred to detention in the Ninth Circuit in Arizona where it was possible, though not as likely as had she remained at home in Ohio, that the court would look favorably on her case.[180]

In yet another example, an asylum seeker who was detained in the Fifth Circuit was denied asylum even though she had been arrested and repeatedly raped while in prison in her home country. She had been arrested after the president was assassinated in the building in which she worked as a government employee but the Fifth Circuit did not find the rapes to have occurred “on account of” her political opinion or her membership in the social group of government employees, since she could always “change her employment”; and refrained from considering whether the rapes constituted torture.[181] However, if this same asylum seeker had been detained in Pennsylvania, in the Third Circuit, her rape and imprisonment would have been recognized as persecution and torture, and she likely would have been granted asylum and allowed to remain in the United States.[182]

Another area of asylum law that is especially problematic for transferred detainees relates to whether or not courts will allow them to make a claim for asylum after the one-year filing deadline set in immigration law. US immigration law allows an asylum seeker to apply after the one-year deadline only after showing “extraordinary or changed circumstances.”[183] However, the rejection of a claim of “extraordinary or changed circumstances” has been interpreted by some courts as a discretionary decision by the immigration agency or attorney general that no court is able to review or reverse.[184]

The inability to appeal the agency’s decision over whether changed circumstances should allow for an extension of the one-year deadline means that many transferred detainees will be denied the opportunity even to apply for asylum. For example, an Egyptian woman applied for asylum because she had received a threat from Islamist extremists after her attendance at a women’s rights rally, which occurred after the one-year deadline. Since she was applying for asylum in California, she was able to appeal certain aspects of the immigration judge’s decision that the new threat did not trigger the “changed circumstances” exception to the one-year filing deadline.[185] Had she been transferred to Illinois, New Mexico, or Pennsylvania, she would not have been able to make that appeal.[186]


[162] US Attorney General Robert Jackson addressing Congress in 1940, as cited by Appellate Division Justice Lawrence H. Cooke, before the Joint Committee on Court Reorganization, Supreme Court Building, Mineola, New York, September 24, 1973, (accessed November 4, 2009).

[163] The states within the jurisdiction of each circuit are as follows: (District of Columbia: Washington, DC), (1st: Maine, Massachusetts, New Hampshire, Rhode Island, Puerto Rico), (2nd: Connecticut, New York, Vermont), (3rd: Delaware, New Jersey, Pennsylvania, Virgin Islands), (4th: Maryland, North Carolina, South Carolina, Virginia, West Virginia), (5th: Louisiana, Mississippi, Texas), (6th: Kentucky, Michigan, Ohio, Tennessee), (7th: Illinois, Indiana, Wisconsin), (8th: Arkansas, Iowa, Missouri, Minnesota, Nebraska, North Dakota, South Dakota), (9th: Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, Washington), (10th: Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming), (11th: Alabama, Florida, Georgia).

[164] See Rashid v. Mukasey, 531 F.3d 438, 448 (6th Cir. 2008) (finding that the second misdemeanor offense cannot be treated as an aggravated felony when the first conviction was not at issue in the prosecution of the second offense).

[165] See United States v. Cepeda-Rios, 530 F.3d 333, 335 (5th Cir. 2008) (finding, after the U.S. Supreme Court decision in Lopez v. Gonzales, 549 U.S. 47 (2006), that two or more state misdemeanor drug possession convictions qualify as aggravated felonies, and therefore bar non-citizens from applying for cancellation of removal under INA 240A, 8 U.S.C. 1229b).

[166] Human Rights Watch interview with Jeffrey J. (pseudonym), South Texas Detention Complex, Pearsall, Texas, April 25, 2008.

[167]Alsol v. Mukasey, 548 F.3d 207, 219 (2d Cir.2008) (deciding that a second simple possession misdemeanor conviction does not constitute an aggravated felony for immigration law purposes).

[168] Human Rights Watch telephone interview with Jeffrey J., Jamaica, October 10, 2008.

[169] Human Rights Watch interview with Rafael S. (pseudonym), South Texas Detention Complex, Pearsall, Texas, April 25, 2008.

[170]United States v. Robles-Rodriguez, 281 F.3d 900, 904 (9th Cir. 2002).

[171]United States v. Cepeda-Rios, 530 F.3d 333, 335 (5th Cir. 2008).

[172]Mortera-Cruz v. Gonzales, 409 F.3d 246, 256 (5th Cir. 2005).

[173]Acosta v. Gonzales, 439 F.3d 550, 556 (9th Cir. 2006); Padilla-Caldera v. Gonzales, 426 F.3d 1294, 1296 (10th Cir. 2005).

[174]Renteria-Gonzalez v. INS, 322 F.3d 804, 814 (5th Cir. 2002) (finding that a vacated conviction, federal or state, remains valid for purposes of the immigration laws). Other Circuits disagree—see, for example, Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1129 (10th Cir. 2005) (noting that convictions which have been vacated on the merits cannot serve as basis for alien’s removal); Nath v. Gonzales, 467 F.3d 1185, 1189 (9th Cir. 2006) (stating that aggravated felony conviction that had been vacated could not serve as basis for removal); Sandoval v. I.N.S., 240 F.3d 577, 583 (7th Cir. 2001) (non-citizen convicted in state court of possession of more than 30 grams of marijuana was not subject to deportation due to conviction, where conviction was vacated on post-conviction motion and sentence modified consistently with first time conviction for possession of less than 30 grams.).

[175] The 1967 Protocol Relating to the Status of Refugees, to which the United States is a party, binds parties to abide by the provisions of the Refugee Convention, including the requirement that no state “shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Convention relating to the Status of Refugees (Refugee Convention), 189 U.N.T.S. 150, entered into force April 22, 1954, art. 33.

[176] Human Rights First, “In Liberty’s Shadow,”, p. 33.

[177] Ramji-Nogales, Schoenholtz, and Schrag, “Refugee Roulette,” Stanford Law Review, p. 376.

[178]Abay v. Gonzales, 368 F.3d 634, 643 (6th Cir. 2004) (recognizing that parent may be granted asylum based on fear of the torture of her daughter through female genital mutilation).

[179]Olowo v. Ashcroft, 368 F.3d 692, 701 (7th Cir. 2004) (denying asylum based on the fact that the mother herself did not fear future genital mutilation).

[180]Abebe v. Ashcroft, 379 F.3d 755, 759 (9th Cir. 2004) (first appeared to follow Seventh Circuit in Olowo, holding that risk that daughter would face genital mutilation did not establish a well-founded fear of persecution, until a majority of the court voted to rehear the case en banc and remanded case to Board of Immigration Appeals to reconsider the decision).

[181]Mwembie v. Gonzales, 443 F.3d 405, 415 (5th Cir. 2006) (finding that the imprisonment and repeated rapes of Ms. Mwembie in the Democratic Republic of the Congo (DRC) were suffered not because of her incarceration due to her political opinion or membership in a particular social group, but rather because she was incarcerated as a part of a legitimate investigation into the assassination of the DRC’s head of state).

[182]Zubeda v. Ashcroft, 333 F.3d 463, 472 (3d Cir. 2003) (recognizing that rape constitutes persecution and torture).

[183] Immigration and Nationality Act, Section 208(a)(2)(D), 8 U.S.C. Section 1158(a)(2)(D)(2000).

[184]Vasile v. Gonzales, 417 F.3d 766, 768 (7th Cir. 2005); Diallo v. Gonzales, 447 F.3d 1274, 1281 (10th Cir. 2006); Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006).

[185]Ramadan v. Gonzales, 479 F.3d 646, 655 (9th Cir. 2007).

[186] See cases cited in footnote 184.