December 2, 2009

II. Recommendations

To place reasonable checks on ICE’s transfer authority:

The United States Congress should amend the Immigration and Nationality Act to:

  • Require that the Notice to Appear be filed with the immigration court nearest to the location where the non-citizen is arrested and within 48 hours of his or her arrest, or within 72 hours in exceptional or emergency cases; and/or

The assistant secretary for ICE should:

  • Promulgate regulations requiring ICE detention officers and trial attorneys to file the Notice to Appear with the immigration court nearest to the location where the non-citizen is arrested and within 48 hours of his or her arrest, or within 72 hours in exceptional or emergency cases.
  • Promulgate regulations prohibiting transfer until after detainees have had a bond hearing.

To reduce transfers of immigration detainees:

The assistant secretary for ICE should:

  • Build new detention facilities or contract for new detention bed space in locations that are close to where most immigration arrests occur.
  • Ensure that new detention facilities are under ICE’s full operational control, so that the agency is not obliged to transfer detainees from sub-contracted local prisons or jails when the facility so requests.
  • Require the use of alternatives to detention whenever and wherever possible.

To address deprivation of access to counsel caused by transfers:

The assistant secretary for ICE should:

  • Build new detention facilities or contract for new immigration detention bed space in locations where there is a significant immigration bar or legal services community.
  • Revise the 2008 Performance Based National Detention Standards (PBNDS) to require ICE/Detention and Removal Operations (DRO) to refrain from transferring detainees who are represented by local counsel, unless ICE/DRO determines that: (1) the transfer is necessary to provide adequate medical or mental health care to the detainee, (2) the detainee specifically requests such a transfer, (3) the transfer is necessary to protect the safety and security of the detainee, detention personnel, or other detainees located in the pre-transfer facility, or (4) the transfer is necessary to comply with a change of venue ordered by the Executive Office for Immigration Review.
  • Amend the “Detainee Transfer Checklist” appended to the PBNDS to include a list of criteria that ICE/DRO must consider in determining whether a detainee has a preexisting relationship with local counsel, and require that ICE/DRO record one or more of the four reasons enumerated above for transfer of a detainee with retained counsel and communicate the reason(s) to that counsel.
  • Reinstate the prior transfer standard that required notification to counsel “once the detainee is en route to the new detention location,” and require that all such notifications are completed within 24 hours of the time the detainee is placed in transit.
  • Collaborate with the Executive Office for Immigration Review to pilot a project providing low-cost or pro bono legal services to immigrants held in remote detention facilities.

The Executive Office for Immigration Review should:

  • Issue guidance for immigration judges requiring them to allow appearances by detainees’ counsel as well as detainees themselves via video or telephone whenever a detainee has been transferred away from local counsel, family members, community ties, or other key witnesses.

To remedy interference with detainees’ bond hearings caused by transfers:

The assistant secretary for ICE should:

  • Amend the Detainee Transfer Checklist appended to the PBNDS to include a list of criteria that ICE/DRO must consider in order to determine whether a detainee has received a bond hearing, or has been found ineligible for such a hearing by an immigration judge, or has consented to transfer without such a hearing.
  • Pursue placement of the detainee in alternative to detention programs prior to transfer.

To reduce the interference with detainees’ capacity to defend against removal caused by transfers:

The assistant secretary for ICE should:

  • Revise the PBNDS to require ICE/DRO to refrain from transferring detainees who have family members, community ties, or other key witnesses present in the local area unless ICE/DRO determines that: (1) the transfer is necessary to provide medical or mental health care to the detainee, (2) the detainee specifically requests such a transfer, (3) the transfer is necessary to protect the safety and security of the detainee, detention personnel, or other detainees located in the pre-transfer facility, or (4) the transfer is necessary to comply with a change of venue ordered by the Executive Office for Immigration Review.
  • Amend the Detainee Transfer Checklist appended to the PBNDS to include designation of one or more of the four reasons enumerated above for transferring detainees away from family members, community ties, or other key witnesses present in the local area.

The Executive Office for Immigration Review should:

  • Issue guidance for immigration judges that strongly discourages them from changing venue away from a location where the detainee has counsel, family members, community ties, or other key witnesses, unless the detainee so requests or consents, or unless other justifications exist for such a motion apart from ICE agency convenience. Such guidance should also encourage changes of venue to locations where detainee family members, community ties, or other key witnesses are located.
  • Issue guidance for immigration judges that prioritizes in-person testimony, but when such testimony is not possible requires judges to allow video or telephonic appearances by family members and other key witnesses. Any decision to disallow these types of appearances should be noted on the record along with the reason for the decision.
  • Issue guidance requiring immigration judges considering change of venue motions to weigh whether a requested change of venue would result in a change in law that is unfavorable to the detainee.

To ensure that transfer of detainees does not interfere with the ability of counsel and family members to locate and communicate with detainees:

The assistant secretary for ICE should:

  • Require ICE/DRO to develop a reliable tracking system that enables prompt identification of the location where any detainee is being held.
  • Require that local ICE field offices maintain up-to-date information about the location of all detainees in their custody and make that information readily available to family members and attorneys of detainees who inquire about the location of a detainee.
  • Revise the PBNDS to provide that if a detainee who has been transferred is unable to make a telephone call at his or her own expense within 12 hours of arrival at the new location, the detainee shall be permitted a single domestic telephone call at the federal government’s expense.

To address interference with counsel and other detrimental legal outcomes caused by the transfers of unaccompanied minors:

The assistant secretary for ICE, together with the ORR director, should:

  • Provide age-appropriate ORR facilities for all unaccompanied minors near to their counsel or in locations where there is access to counsel, and, in the case of unaccompanied minors who have resided in the United States for longer than one year, their former place of residence in the United States.

To improve agency accountability and management practices as well as accurate accounting of operational costs involved in transfers:

The assistant secretary for ICE should:

  • Require detention operations personnel to promptly enter the date of transfer, originating facility, receiving facility, reasons for transfer, and counsel notification into the Deportable Alien Control System, or any successor system used by ICE to track the location of detainees.
  • Include costs associated with inter-facility transfers of detainees as a category distinct from transfers made to complete removals from the US in annual financial reporting by the agency.

The Executive Office for Immigration Review should:

  • Maintain statistics on the total number of motions to change venue filed by the government versus those filed by non-citizens, and the number granted in each category.