December 2, 2009

VIII. Violation of the Rights to Challenge Detention and to Fair Venue

Bond Hearings Delayed or Hindered by Transfers of Detainees

Once an individual is detained, he or she has the right to request what is known as a bond redetermination hearing (or a “bond hearing”) from the immigration judge. This bond hearing, during which the detainee asks to be released from detention, can go forward irrespective of whether the notice to appear has been issued or filed with the immigration court.[122]

The three factors used by the immigration court in deciding whether to grant a bond, and in what amount, are: (1) the non-citizen’s danger to the community, (2) his or her risk of flight (or likelihood of appearance for subsequent hearings if released from detention), and (3) whether the non-citizen is subject to mandatory detention provisions, which apply mostly to non-citizens facing deportation for criminal offenses, or is subject to other regulations which deprive the immigration judge of jurisdiction.[123] It is essential that witnesses and evidence relevant to these three factors are presented at the bond hearing. As one attorney advises fellow immigration practitioners:

It will [sic] important to document these factors as well as possible, with evidence of: the non-citizen’s relatives in the US who have lawful status; non-existent criminal record (or minor crimes); rehabilitation following any criminal activity; a stable place to live; a job to return to, or a job offer of future employment; eligibility for relief from removal (or even voluntary departure), so there is incentive to return to any hearings, and other relevant information. Have friends and family write letters of support and appear, if possible, at the bond hearing (possibly to testify, or just to be introduced to the judge).[124]

Unfortunately, ICE’s policy of transferring detainees before a bond hearing is even scheduled, as well as transferring them without regard to scheduled bond hearings, often seriously delays their access to such a hearing. In addition, the inability of transferred detainees to produce witnesses or to provide evidence concerning the three relevant factors makes it much more difficult for them to prevail at their hearings.

When transfers interfere in one or both of these ways with bond hearings, the human right of detainees to a speedy decision on the lawfulness of their detention is threatened. Article 9.4 of the ICCPR states:

Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.[125]

When an immigration judge weighs the factors at issue in a bond hearing, the detainee needs to present evidence of ties to the community, such as close family relationships, the possibility of employment, and a stable place to live. However, transferred detainees cannot present evidence of these factors through direct testimony from witnesses. As one detainee who was facing deportation because of convictions for assault and for buying and selling food stamps explained,

I have everything in America. I have the money for a bond. I can show that I will cooperate. I have been here for 13 years. I own a house. I work in a restaurant ... Since my two crimes, I have obeyed the law very well. I want to be out because my children need my help. My wife works hard and she needs me out. I have three children, one girl who is eight, a boy who is six, and our five-year-old daughter with autism. If I could have bond, I could help them. If I could have had my [bond] hearing in Pennsylvania before getting sent here [to Texas], I would have been out long ago.[126]

In addition, since one of the factors weighed in bond hearings is the dangerousness of the individual, if the non-citizen is facing deportation because of a criminal conviction, the victim of the crime can often be a very persuasive witness. Victims of relatively minor crimes committed by non-citizens are often willing to testify. In some cases, their desire for justice already has been satisfied by the individual spending some time in prison or paying a fine. In other cases, victims are relatives who turned in their non-citizen family member for minor crimes.[127] In some of these cases, victims are shocked to learn that, as a result of their holding the non-citizen relative accountable for a minor crime, he or she is facing permanent banishment from the United States.

As one attorney said, “for bond hearings, whenever you can, and it happens often since some crimes are relatively minor, you want the victim to testify to disprove the dangerousness.”[128] However, after transfer to a remote detention center, it is extremely unlikely that the victim will be able to travel to the new location in order to testify, thereby making it unlikely that the detainee will obtain bond.

Transfer Just Prior to Bond Hearing

Thomas P., a legal permanent resident originally from Jamaica, was placed in removal proceedings in Pennsylvania due to his conviction for drug possession.[129] According to his attorney, some individuals in Pennsylvania with similar convictions had been granted bond in the past. Several aspects of Thomas’s application, including the lack of violence in his crime, as well as his longstanding employment and residence in the community and close family relationships, would have weighed against his dangerousness and flight risk and in favor of granting him bond. Thomas had lived in Pennsylvania with his wife in a home which they owned and had worked for the same employer for 20 years. His attorney filed a motion for a bond hearing and the hearing was scheduled for March 20, 2008, by the York immigration court. Two days prior to his hearing, Thomas P. was transferred 1,816 miles away to Willacy Detention Center in Texas. His bond hearing was rescheduled in Texas for April 28, 2008. His attorney appeared by telephone, and he was not able to have his wife, two sons, two daughters, or employer present at the hearing. His bond was denied.[130]

 

As the case above demonstrates, ICE sometimes decides to transfer a detainee just before a bond hearing is to be held. While we have no evidence showing that ICE intends to interfere with bond hearings, frequent interference occurs because ICE does not check whether such a hearing has occurred and is not required to check under existing transfer policies. An immigration attorney in El Paso explained that he often saw detainees transferred to New Mexico or Texas just before their scheduled bond hearings in various east coast detention locations:

On a regular basis, transfers down here interfere with people’s ability to obtain bond. In some cases, people are transferred before they can have their bond hearing. Then, once they’re down here, they’re likely to be denied. We’ve also had cases where people are given a bond in city A and before the family can even post the bond in city A, they are transferred to El Paso—and then find that their bond is cancelled by the immigration judge down here. Getting transferred down here means little chance of getting bond.[131]

In another example, the mother of a young man living in Long Beach, New York, wrote her congressman to express her concern that her son was transferred from a detention facility in New Jersey to New Mexico on the same day as his bond hearing.

On the day of his trial a U.S. Marshall [sic] informed him they were transferring him to New Mexico. Despite him telling them he was due in court that very morning they still transferred him.... We have not seen him in almost two months.[132]

Of course, many transferred detainees interviewed by Human Rights Watch did not even know that they had the right to apply for bond. Many did not have attorneys to advise them of this right. Many of those who somehow learned of the opportunity to apply for bond faced an uphill battle proving, without ready access to witnesses and evidence, that they met the requisite criteria.

Transferred Detainees are Rarely Able to Change Venue

ICE’s decision to transfer a detainee is a step of immense significance. Even if a detainee has spent all of her time living in the United States within a particular state, and even if her deportation is due to a previous violation of the criminal laws of that state, if a detainee is transferred before the NTA has been filed with the immigration court, she can expect to have her entire case proceed in the new post-transfer state, subject to the law as interpreted by the US Court of Appeals that hears cases originating from that state.

If this occurs, detainees and their lawyers may attempt to change venue back to the original pre-transfer location. However, it is very difficult for a detainee to win a change of venue motion (as discussed below, it appears to be less difficult for government attorneys). In order to change the venue for a deportation case, the judge must find “good cause.” Good cause is understood to require the balancing of several factors, some that tip the scales in favor of the US government, and some that tend to favor the detainee. Judges typically weigh:

Administrative convenience; expeditious treatment of the case; location of witnesses; cost of transporting witnesses or evidence to a new location; and factors commonly associated with the alien’s place of residence.[133]

While these factors on their face may appear balanced, detainees and their attorneys confront particular challenges when presenting a change of venue motion, since “the mere fact that an applicant allegedly resides ... in another city, without a showing of other significant factors associated with such residence, is insufficient.”[134] Moreover, the power rests entirely with the immigration judge, who may base his or her decision on evidence of administrative convenience and/or expeditious treatment of the case alone (both of which are factors weighing against changing venue for a transferred detainee):

Change of venue is committed to the sound discretion of the immigration judge and will not be overturned except for an abuse of discretion. An immigration judge commits an abuse of discretion only if there is no evidence to support the decision or if the decision is based on an improper understanding of the law.[135]

Moreover, courts have consistently held that the location of a detainee’s attorney (often the same location as the detainee’s witnesses and former place of residence) is insufficient cause for change of venue.[136] Finally, judges have not been required to weigh whether a non-citizen will be subject to a less favorable legal standard in the new venue, which can be decisive.[137]

In cases in which ICE chooses to transfer a detainee after the NTA is filed with the immigration court, the agency consistently files a motion to change the venue to the new, post-transfer jurisdiction. Often, especially when a detainee is unrepresented, he or she may not understand the significance of the change of venue motion filed by the DHS attorney, and therefore may passively agree to the case proceeding in the new jurisdiction. One immigration attorney in Arizona reported to Human Rights Watch that transferred detainees were pressured to sign statements of non-opposition to change of venue motions, or did not fully understand the motions before agreeing not to oppose them.[138]

When detainees are the ones requesting change of venue, many judges seem to take a view similar to the one articulated by a judge in Seattle who, during a hearing, said to the attorney for a transferred detainee:

I don’t normally grant motions for a change of venue [filed by a detainee].... Because he is in detention being held by the INS [ICE’s predecessor], I cannot tell the INS to transfer to another district....[139]

A court reviewing this and other statements by the Seattle immigration judge (“IJ”) noted, disapproving of the IJ’s conduct, “the IJ advised counsel that it was her practice to deny motions for change of venue for detained aliens unless the INS agreed.”[140]

Interviews with immigration attorneys support the idea that change of venue motions filed on behalf of transferred detainees are rarely won. One attorney represented a mentally ill Cuban asylum seeker, whose father was a key witness in the case and due to age and disability, could not travel from Los Angeles to Eloy, Arizona, where his son was detained. The attorney explained to Human Rights Watch,

This case was my first successful change of venue motion in more than a decade of practice. We filed a phone book [a large number of documents] to get this guy’s venue changed.[141]

A detainee in Texas, who had spent one month in detention in Pennsylvania near to his Pittsburgh attorney, his US citizen wife, and his 15-month-old US citizen daughter, filed a change of venue motion after his transfer to Texas. He told Human Rights Watch

The judge [in Texas] asked me “where is your lawyer?” and I told her that she was in Pennsylvania. Also, all my documents, my daughter’s birth certificate, the police records.... everything was there. But, I filed the change of venue motion and it was denied.[142]

An attorney in Texas explained that the US government “opposes everything. So, when you file a change of venue motion, you’re going to get a boilerplate opposition from the [DHS] counsel’s office.” This same attorney described one unusual case in which he had been successful in changing venue:

We filed a change of venue motion giving a witness list for eight or so people in San Antonio. It was hard to convince this client to keep fighting. He was so depressed, and he just wanted to take voluntary departure. But, the judge heard our motion and said “I recognize that all these witnesses have to appear, I recognize that this guy’s moral character is going to be very much in issue, I will grant the change of venue.”[143]

While not every detainee, especially those who are unrepresented, knows to file a change of venue motion, every detainee interviewed by Human Rights Watch in Texas who had managed to file such a motion was denied.[144]

Due to our concerns about ICE’s common practice of transferring detainees and subsequently filing change of venue motions or opposing motions filed by detainees, Human Rights Watch asked the Executive Office for Immigration Review to give us statistics on the number of change of venue motions filed by detainees and subsequently granted by immigration courts, as well as the number filed by the government of the United States and subsequently granted by the courts. In its response, EOIR claimed that it had no data responsive to our questions, and specifically did not track change of venue motions based on whether the request was filed by the DHS attorney or the non-citizen detainee.[145]

The difficulties transferred detainees face in changing venue raise concerns that the US is violating its obligation under Article 14 of the ICCPR to ensure “everyone ... a fair and public hearing by a competent, independent and impartial tribunal.” Impartiality is at risk if one litigant (such as the DHS) is invariably more successful in its attempts to change venue. In addition, the scales of justice are not well balanced when detainees are systematically prevented from vigorously presenting their cases and presenting all necessary evidence due to venue considerations. Moreover, fairness is under threat if judges do not consider whether a change of venue motion will result in the detainee being subjected to less favorable law (a subject discussed in detail in Chapter X), affecting his or her interest in remaining in the United States. Of course, neither detainees nor DHS attorneys should be empowered to shop around for the most favorable forum through change of venue motions, which is why impartiality in deciding these motions is essential.

 

[122] 8 C.F.R. Sections 3.19, 3.14(a).

[123] Immigration and Naturalization Act, Section 236, 8 U.S.C. Section 1226.

[124] Zachary Nightingale, “General Notes on Representing Persons Detained by INS,” National Immigration Project, January 21, 2002, http://www.nationalimmigrationproject.org/ImmRightsRes/zachbond.htm (accessed November 4, 2009) (emphasis in original).

[125] ICCPR, art. 9.4 (emphasis added).

[126] Human Rights Watch interview with Yuan Z. (pseudonym), Port Isabel Service Processing Center, Los Fresnos, Texas, April 24, 2008.

[127]Human Rights Watch telephone interview with Holly Cooper, January 27, 2009.

[128] Ibid.

[129] Human Rights Watch interview with Thomas P., April 22, 2008.

[130] Email communication from Natalie S. (pseudonym) to Human Rights Watch, April 16, 2008.

[131] Human Rights Watch telephone interview with John Lawitt, January 29, 2009.

[132] Letter from constituent forwarded by US Representative Peter King to ICE, February 1, 2007 (provided to Human Rights Watch in response to our FOIA request to ICE regarding detainee transfers) (letter on file with Human Rights Watch).

[133]Matter of Rahman, 20 I & N Dec. 480, 483 (BIA 1992).

[134] Ibid.

[135]Sanchez-Fuentes v. INS, 9 F.3d 1553 (9th Cir. 1993) (unpublished table decision) (emphasis added).

[136]Matter of Rahman, 20 I & N Dec. 480, 485 (BIA 1992) (immigration judge not required to change venue to accommodate request for distant attorney); Mayers v. I.N.S., 70 F.3d 1268, 1268 (5th Cir. 1995) (immigration judge not required to change venue despite fact that immigration proceedings were in Louisiana and attorney was in New York, necessitating that Mayers proceed without counsel.).

[137] See Chapter X, below.

[138] Human Rights Watch interview with Christina Powers, Florence Immigrant and Refugee Rights Project, December 27, 2007.

[139]Garcia-Guzman v. Reno, 65 F. Supp.2d 1077, 1079 (N.D. Cal. 1999).

[140] Ibid. At least one court has found that an immigration judge abused his discretion when concluding that he simply “had no power to consider the issue” when a change of venue was requested by a detainee. Lovell v. INS, 52 F.3d 458, 460 (2d Cir. 1995). Nevertheless, using the standard applied by all courts reviewing claims that immigration judges abused their discretion, even this court found that there was no need to reverse the immigration judge’s ruling since the detainee failed to “show prejudice resulting from [the judge’s] failure to consider his motion for a change of venue.” Lovell at 461.

[141] Human Rights Watch telephone interview with Holly Cooper, January 27, 2009.

[142] Human Rights Watch interview with Nurhan T. (pseudonym), Port Isabel Service Processing Center, Los Fresnos, Texas, April 23, 2008.

[143] Human Rights Watch telephone interview with John Lawitt, January 29, 2009.

[144] Human Rights Watch interviews with: Nurhan T. (pseudonym), April 23, 2008; Patrick H. (pseudonym), South Texas Detention Complex, Pearsall, Texas, April 23, 2008; Salim A. (pseudonym), South Texas Detention Complex, Pearsall, Texas, April 25, 2008; Dian K. (pseudonym), South Texas Detention Complex, Pearsall, Texas, April 25, 2008.

[145] Communication from Executive Office for Immigration Review to Human Rights Watch, July 1, 2008 (communication on file with Human Rights Watch).