December 2, 2009

I. Summary

I lived in upstate New York for 10 years with my four children and my wife ... ICE said I was deportable because of an old marijuana possession conviction where I never served a day in jail, just paid a fine of $250 ... They took me to Varick Street [detention center in New York City] for a few days and then sent me straight to [detention in] New Mexico. In New York when I was detained, I was about to get an attorney through one of the churches, but that went away once they sent me here to New Mexico.... All my evidence and stuff that I need is right there in New York. I’ve been trying to get all my case information from New York ... writing to ICE to get my records. But they won’t give me my records, they haven’t given me nothing. I’m just representing myself with no evidence to present.[1]

Each year in the United States, several hundred thousand non-citizens[2] (378,582 in 2008) are arrested and detained by Immigration and Customs Enforcement (ICE) officials. They are held in a vast network of more than 300 detention facilities, located in nearly every state in the country. Only a few of these facilities are under the full operational control of ICE—the majority are jails under the control of state and local governments that subcontract with ICE to provide detention bed space.

Although non-citizens are often first detained in a location near to their place of residence, for example, in New York or Los Angeles, they are routinely transferred by ICE hundreds or thousands of miles away to remote detention facilities in, for example, Arizona, Louisiana, or Texas. Detainees can also cycle through several facilities in the same or nearby states. Previously unavailable data obtained by Human Rights Watch show that over the 10 years spanning 1999 to 2008, 1.4 million detainee transfers occurred. The large numbers of transfers are due to ICE’s broad use of detention as a tool of immigration control, especially after restrictive immigration laws were passed in 2006, and the absence of effective policies and standards to prevent unnecessary transfers.

Any governmental authority holding people in its custody, particularly one responsible for detaining hundreds of thousands of people in dozens of institutions, will at times need to transport them between facilities. In state and federal prison systems, for example, inmate transfers are relatively common, even required, in order to minimize overcrowding, respond to medical needs, or properly house inmates according to their security classifications. Transfers in state and federal prisons, however, are much better regulated and rights-protective than transfers in the civil immigration detention system where there are few, if any, checks. The difference in the ways the US criminal justice and immigration systems treat transfers is doubly troubling because immigration detainees, unlike prisoners, are technically not being punished. But thus far ICE has rejected recommendations to place enforceable constraints on its transfer power.

This report examines the scope and human rights impacts of US immigration transfers. It draws on extensive, previously unpublished ICE data Human Rights Watch obtained through a Freedom of Information Act request, as well as scores of interviews with detainees, family members, advocates, attorneys, and officials. As detailed below, we found that such transfers are even more common than previously believed and are rapidly increasing in number, more than doubling from 2003 (122,783) to 2007 (261,941) and likely exceeding 300,000 in 2008 once the final numbers are in. The impact on detainees and their families is profound.

Transfers erect often insurmountable obstacles to detainees’ access to counsel, the merits of their cases notwithstanding. Transfers impede their rights to challenge their detention, lead to unfair midstream changes in the interpretation of laws applied to their cases, and can ultimately lead to wrongful deportations.

Transfers also take a huge personal toll on detainees and their families, often including children. As one attorney who represents immigration detainees explained:

The transfers are devastating—absolutely devastating. [The detainees] are loaded onto a plane in the middle of the night. They have no idea where they are, no idea what [US] state they are in. I cannot overemphasize the psychological trauma to these people. What it does to their family members cannot be fully captured either. I have taken calls from seriously hysterical family members—incredibly traumatized people—sobbing on the phone, crying out, “I don’t know where my son or husband is!”[3]

Many detainee transfers are unnecessary and the harms avoidable. ICE needs a transfer policy with greater clarity of purpose and protections against abuse. As detailed in the recommendations section below, better transfer standards can be developed with just a few simple reforms.

An agency charged with enforcing the laws of the United States should not need to resort to a chaotic system of moving detainees around the country in order to achieve efficiency. Immigrant detainees should not be treated like so many boxes of goods—shipped to the location where it is most convenient for ICE to store them. Instead, ICE should hold true to its mission of enforcing the laws of the United States and allow reasonable and rights-protective checks on its transfer power.

The Impact of Transfers on Detainees’ Rights

The current US approach to immigration detainee transfers interferes with several important detainee rights. To understand the conditions immigration detainees face, it is instructive to compare their situation to that of federal and state prisoners.

In the US criminal justice system, pretrial detainees enjoy the right, protected by the Sixth Amendment to the US Constitution, to face trial in the jurisdiction in which their crimes allegedly occurred.[4] Immigrant detainees enjoy no comparable right to face deportation proceedings in the jurisdiction in which they are alleged to have violated immigration law, and are routinely transferred far away from key witnesses and evidence in their trials. In all but rare cases a transfer of a criminal inmate occurs once an individual has been convicted and sentenced and is no longer in need of direct access to his attorney during his initial criminal trial. Immigrant detainees can be transferred away from their attorneys at any point in their immigration proceedings, and often are. Finally, transferred criminal inmates can usually be located through a state or federal prisoner locator system, which is accessible to the public and in many cases is updated every 24 hours. There is no similar publicly accessible immigrant detainee locator system, meaning that detainees can be literally “lost” from their attorneys and family members for days or even weeks after being transferred.

All immigrant detainees, however, have the right, protected under US law as well as human rights law, to be represented in deportation and related hearings by the attorney of their choice. Transfers of immigrant detainees severely disrupt the attorney-client relationship because attorneys are rarely, if ever, informed of their clients’ transfers. Attorneys with decades of experience told us that they had not once received prior notice from ICE of an impending transfer. ICE often relies on detainees themselves to notify attorneys, but the transfers arise suddenly and detainees are routinely prevented from or are otherwise unable to make the necessary call. As a result, attorneys often spend days, even weeks tracking down the new location of their clients. Once a transferred client is found, the challenges inherent in conducting legal representation across thousands of miles can completely sever the attorney-client relationship.

Even when an attorney is willing to attempt long distance representation, the issue is entirely within the discretion of immigration judges, whose varying rules about phone or video appearances can make it impossible for attorneys to represent their clients. In other cases, detainees must struggle to pay for their attorneys to fly to their new locations for court dates, or search, usually in vain, for local counsel to represent them. Transfers create such significant obstacles to existing attorney-client relationships that ICE’s special advisor, Dora Schriro, recommended in her October 2009 report that detainees who have retained counsel should not be transferred unless there are exigent reasons.

Still, immigrants who have already retained an attorney prior to transfer are the most fortunate. Detainees are often transferred hundreds or thousands of miles away from their families and home communities before they have been able to secure legal representation. Almost invariably, there are fewer prospects for finding an attorney in the remote locations to which they are transferred. It is therefore not surprising that in 2008, the most recent year for which figures are available, 60 percent of non-citizens appeared in immigration court without counsel.

Although most detained non-citizens have the right to a timely “bond hearing”—a hearing examining the lawfulness of detention (a right protected under US law as well as human rights law)—our research shows that ICE’s policy of transferring detainees without taking into account their scheduled bond hearings often seriously delays those hearings. In addition, transferred detainees are often unable to produce the kinds of witnesses (such as family members or employers) that are necessary to obtain bond, which means that they usually remain in detention.

Once they are transferred, the vast majority of non-citizens must go forward with their deportation cases in the new, post-transfer location. Some may ask the court to change venue back to the pre-transfer location, where evidence, witnesses, and their attorneys are more readily accessible. Unfortunately, for a variety of reasons discussed in this report, it is very difficult for a non-citizen detainee to win a change of venue motion.

Transfer can also have a devastating impact on detainees’ ability to defend against deportation, despite their right to present a defense. Transfer often makes it impossible for non-citizens to produce evidence or witnesses relevant to their defense. In addition, the transfer of detainees often literally changes the law that is applied to them. For example, the act of sending a detainee from one jurisdiction to another can determine whether she may ask an immigration judge to allow her to remain in the United States.

Transfer can pose unique problems for detainees who are minor children, without a parent or custodian to offer them guidance and protection. ICE is required to send these unaccompanied minors as soon as possible to a specialist facility run by the Office of Refugee Resettlement (ORR) that is the least restrictive, smallest, and most child-friendly facility available. Placing children in these facilities is a laudable goal, and one that protects many of their rights as children. Unfortunately, there are very few ORR facilities in the United States. Therefore, children are often transferred even further than their adult counterparts, away from attorneys willing to represent them and from communities that might offer them support. The delays and interference with counsel caused by these long-distance transfers of children can cause them to lose out on important immigration benefits available to them only as long as they are minors, such as qualifying for Special Immigrant Juvenile Status, which would allow them to remain legally in the United States.

Finally, the transfer of immigrants across long distances to remote locations takes a heavy emotional toll on detainees and their loved ones. Physical separation from family members when immigrants are detained in remote locations impossible for their relatives to reach creates severe emotional and psychological suffering.

New Data on Detainee Transfers

Given the serious rights violations that can occur, Human Rights Watch is concerned by the widespread and increasing use of transfers by ICE. Data obtained from ICE by Human Rights Watch for this report and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University reveal that transfers have increased sharply in recent years: of the 1.4 million transfers that have occurred between 1999 and 2008, more than half (53 percent) took place in the last three of those 10 years.

The data show a clear link between ICE’s reliance on subcontractors to house immigrant detainees and the burgeoning number of transfers. The majority of detainees are held in numerous state and local jails and prisons that ICE pays to provide bed space. However, whenever these state and local facilities need to free up space for persons accused or convicted of crimes, or whenever they decide housing ICE detainees is undesirable for whatever reason, ICE must move detainees out. As a result, the vast majority of transfers occur through such subcontracted facilities.

Although transfers occur into, out of, and within almost every state in the country, the three states most likely to receive transfers are Texas, California, and Louisiana. The numbers are so high in each of Louisiana and Texas that the federal Court of Appeals for the Fifth Circuit (which covers Louisiana, Mississippi, and Texas) is the jurisdiction that receives the most transferred detainees. Transfers to states covered by the Fifth Circuit are of particular interest to an assessment of the impact of immigration transfers because the circuit court is widely known for decisions that are hostile to the rights of non-citizens and because the states within its jurisdiction collectively have the lowest ratio of immigration attorneys to immigration detainees in the country.

While it is impossible to determine conclusively based on our data whether there is a net inflow of transfers to the Fifth Circuit—and we certainly do not conclude that it is intentional ICE policy to create such an inflow—the data show a large disparity between transfers received in (95,114) and originating from (13,031) the Fifth Circuit state of Louisiana. As detailed below, a detainee whose deportation hearing might have been about to be heard in another jurisdiction may well find out, after transfer to a facility within the Fifth Circuit, that his or her chances of successfully fighting deportation have just evaporated.

ICE Policy

As an agency responsible for the custody and care of hundreds of thousands of people, it is clear that ICE will need to transfer detainees. The question is whether all or most of the 1.4 million transfers that have occurred over the past 10 years were truly necessary, especially in light of how transfers interfere with immigrants’ rights to access counsel and to fair immigration procedures.

Despite such problems, ICE has remained staunchly opposed to limiting its transfer power. According to the agency, any such limits would curtail its ability to make the best and most cost-effective use of the detention beds it has access to across the country. In a time of fiscal downturn in the United States such efficiency concerns are important, but they should never come at the expense of basic human rights. This is especially true for those detainees who have attorneys to consult, defenses to raise in their deportation hearings, and witnesses and evidence to present at trial. Some detainees may not have such issues at stake. But for those who do, the United States government and its immigration enforcement agency should not be allowed to act without restraint.

Due to changes in ICE leadership under the Obama administration, there may be opportunities in the near term for ICE to reduce its increasing reliance on transfers. In August 2009, ICE announced a policy shift to

move away from our present decentralized, jail-oriented approach to a system wholly designed for and based on ICE’s civil detention authorities. The system will no longer rely primarily on excess capacity in penal institutions. In the next three to five years, ICE will design facilities located and operated for immigration detention purposes.[5]

As a part of this plan to create new detention facilities solely for immigration purposes, ICE should strive to reduce transfers. The agency should ensure that the new facilities are under its full operational control and are located close to the places where the majority of detainees are arrested. Agency regulations should be amended to require that the Notice to Appear (NTA) (the document giving the government’s reasons for believing an immigrant is deportable) is filed with the immigration court closest to the location where the detainee is arrested. In addition, new guidelines should be issued by ICE and the Executive Office for Immigration Review (EOIR) so that detainee transfers occur only in instances in which they do not threaten basic human rights. Once ICE’s transfer guidelines are developed, they should be made a part of US federal regulations so that if the guidelines are violated, they can be enforced in court. Finally, Congress should consider making a simple amendment to immigration laws to place a reasonable check on ICE’s transfer authority.

Transfers do not need to stop entirely in order for ICE to respect detainees’ rights. They merely need to be reduced through the establishment of enforceable guidelines, regulations, and reasonable legislative restraints.

 

[1]Human Rights Watch telephone interview with Kevin H. (pseudonym), Otero County Processing Center, Chaparral, New Mexico, February 11, 2009.

[2] Throughout this report, the words “non-citizen” and “immigrant” are used interchangeably for any person who is not a citizen or national of the United States. These are the same persons defined in immigration law as “aliens,” and they include persons lawfully present in the United States as well as those unlawfully present. Immigration and Nationality Act, Section 101(a)(3); 8 U.S.C. Section 1101(a)(3).

[3] Human Rights Watch telephone interview with Rebecca Schreve, immigration attorney, El Paso, Texas, January 29, 2009.

[4] 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.”).

[5] US Department of Homeland Security, Office of Public Affairs, Fact Sheet, “2009 Immigration Detention Reforms,” August 6, 2009, http://www.ice.gov/pi/news/factsheets/2009_immigration_detention_reforms.htm (accessed November 4, 2009).