June 14, 2011

II. Recommendations

To the United States Congress

  • Place reasonable checks on the transfer authority of Immigration and Customs Enforcement (ICE) by amending 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.

To the Assistant Secretary for Immigration and Customs Enforcement (ICE)

  • 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 a bond hearing.
  • Reduce transfers of immigration detainees by:
    • Building new detention facilities or contracting for new detention bed space in locations close to places with large immigrant populations, where most immigration arrests occur.
    • Ensuring 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 whenever the facility so requests.
    • Requiring use of alternatives to detention such as monitoring of released detainees when and where possible.
  • Address deprivation of access to counsel that is caused by transfers by:
    • Building new detention facilities or contracting for new immigration detention bed space in locations where there is a significant immigration bar or legal services community.
    • Revising the 2008 Performance Based National Detention Standards (PBNDS) to require ICE/Detention and Removal Operations (ICE/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.
    • Amending 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 pre-existing relationship with local counsel, and requiring 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.
    • Reinstating 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.
    • Collaborating with the Executive Office for Immigration Review to pilot new projects providing low-cost, pro bono, and/or government-appointed legal services to immigrants held in remote detention facilities.
  • Remedy interference with detainees’ bond hearings caused by transfers by:
    • Amending 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.
    • Pursuing placement of the detainee in alternative to detention programs prior to transfer.
  • Reduce interference with detainees’ capacity to defend against deportation caused by transfers by:
    • Revising 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.
    • Amending 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.
  • Ensure that transfer of detainees does not interfere with the ability of counsel and family members to communicate with detainees by:
    • Revising 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 a new location, the detainee is permitted to make a domestic telephone call at the federal government’s expense.
  • Improve agency accountability and management practices, as well as accurate accounting of operational costs involved in transfers by:
    • Requiring 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.
    • Including costs associated with inter-facility transfers of detainees as a category distinct from transfers made to complete removals from the US in the agency’s annual financial reporting.

To the Assistant Secretary for ICE, and the Director of the Office of Refugee Resettlement (ORR)

  • Address interference with counsel and other detrimental legal outcomes caused by the transfers of unaccompanied minors by:
    • Providing age-appropriate Office of Refugee Resettlement (ORR) facilities for all unaccompanied minors near their counsel or in locations where there is access to counsel, and, in the case of unaccompanied minors who have resided in the US for longer than one year, near their former place of residence in the US.

To the Executive Office for Immigration Review

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