June 14, 2011

III. Background

 

ICE Internal Policy on Transfers

As an agency responsible for the custody and care of hundreds of thousands of people, it is clear that ICE will sometimes need to transfer immigrant detainees. The question is whether all or most of the 2.04 million transfers that have occurred over the past 12 years were truly necessary, especially in light of how transfers interfere with immigrants’ rights to access counsel and to fair immigration procedures.

While ICE has repeatedly indicated willingness to reduce its reliance on transfers, it has not made any official policy changes to translate those intentions into reality—other than a plan to increase immigration bed space at criminal facilities in Essex, New Jersey. [4] And the agency has remained staunchly opposed to placing regulatory or legislative checks on its transfer power, which would be enforceable through the courts. [5]

In August 2009 ICE announced a range of policy reforms intended to shift away from the punitive model for immigration detention towards a more “civil” system. The agency indicated its intention 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. [6]

A report issued in October 2009 amplified the rationales for ICE detention reform. In that report, Special Advisor to ICE Dora Schriro recommended that “[d]etainees who are represented by counsel should not be transferred outside the area unless there are exigent health or safety reasons, and when this occurs, the attorney should be notified promptly.” [7]

While many organizations concerned about immigration detention welcomed such recommendations, ICE made no internal policy reforms in line with these statements that would stem the tide of detainee transfers.

In December 2009 Human Rights Watch published Locked Up Far Away, which documented 1.6 million transfer movements of immigrant detainees. We intensified advocacy efforts with ICE, asking it to impose some reasonable limits on the transfers of immigrant detainees by changing the agency’s internal policies on transfers. While enforceable regulatory or legislative checks on the use of transfers would be the most protective solutions to this problem, ICE has refused to promulgate enforceable regulations on detention conditions and operations. [8] Congress has not acted either. We therefore pressed ICE to make internal policy reforms to its PBNDS.

On February 22, 2010, three months after publication of Locked Up Far Away, ICE wrote to Human Rights Watch announcing the agency’s intention to “minimize the number of detainee transfers to the greatest extent possible.” [9] The agency made similar announcements in various meetings with advocates around the country, suggesting that it would reduce its reliance on transfers. Subsequently, in July 2010, ICE implemented an important reform for transferred detainees: it established an online detainee locator system. [10] This reform was recommended in our previous report and had been a chief goal of immigrants’ rights advocates around the country for years. Before, attorneys and family members would spend stressful hours and days searching for clients and loved ones after a transfer. This online system now allows detainees to be located relatively quickly, and is an important rights-protective achievement for ICE. However, while detainees can now be located more readily, we remain concerned that the agency has still not made any formal internal policy changes aimed at reducing detainee transfers, other than repeatedly announcing its intention to do so.

Therefore, with the assistance of the Transactional Records Access Clearinghouse at Syracuse University (TRAC), we filed a follow-up request for data about detainee transfers under the Freedom of Information Act (FOIA) in February 2010. We specifically requested data that would allow us to determine the starting and ending location for each transferred detainee. In November 2010 we received data from ICE in response to our request.

As we commenced analyzing data, we continued to press ICE to change its policies on detainee transfers. In November 2010 we wrote to ICE and to the labor union representing government workers in detention centers, after ICE alleged that contract bargaining issues with the union were delaying improvements to ICE’s detainee transfer policies. [11]

Subsequently, in February 2011, we wrote to Secretary of Homeland Security Janet Napolitano to ask for an improved policy on transfers. While ICE continues to signal that improvements to its internal transfer policies are forthcoming, almost two years after the initial promise of reform, no significant policy changes have been made.

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. [12] 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, and often are, transferred away from their attorneys at any point in their immigration proceedings.

Immigrant detainees, unlike criminal defendants, have no right to a court-appointed attorney. In 2010, 57 percent of non-citizens appeared in immigration court without counsel. [13] In some urban areas, immigrants can benefit from an active cadre of attorneys willing to represent them at low or no cost, in other words on a pro bonobasis. While it is beyond this report’s scope to draw a direct causal relationship between transfers of detainees and their inability to secure counsel to represent them in immigration court, it is clear that detainees are often transferred hundreds or thousands of miles from 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. Our data analysis shows that detainees are transferred, on average, 369 miles, with one frequent transfer pattern crossing 1,642 miles. Detainees transferred long distances must therefore often go through the entire complex process of defending their rights in immigration court without legal counsel. [14] One detainee told Human Rights Watch:

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. [15]

A detainee who was transferred 1,400 miles away to a detention facility in Texas after a few weeks in a detention center in southern California said the difference for him was “like the difference between heaven and earth.” He said: “At least in California I had a better chance. I could hire a[n] attorney to represent me. Now, here, I have no chance other than what the grace of God gives me.” [16]

For the relatively fortunate detainees who can afford attorneys or secure pro bono attorneys, transfers 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 have to search the online detainee locator for their clients’ new locations. Once a transferred client is found, the challenges inherent in conducting legal representation across thousands of miles can completely sever the attorney-client relationship. This is especially true when the same person is transferred repeatedly. Data analyzed in this report show that 46 percent of detainees experience two or more transfers. As one attorney said:

I have never represented someone who has not been in more than three detention facilities. Could be El Paso, Texas, a facility in Arizona, or they send people to Hawaii.... I have been practicing immigration law for more than a decade. Never once have I been notified of [my client’s] transfer. Never. [17]

Even when an attorney is willing to attempt long distance representation, the issue is entirely subject to 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 health or safety reasons. [18]

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 and human rights law)—our research shows that ICE’s policy of transferring detainees without taking into account their scheduled bond hearings interferes with those hearings. [19] 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. In fact, data contained in this report show that transferred immigrants spend on average three times as long in detention as their counterparts who are never transferred.

Once they are transferred, most non-citizens must proceed 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 accessible. Unfortunately, it is very difficult for a non-citizen detainee to win a change of venue motion.

Transfers can also have a devastating impact on detainees’ ability to defend against deportation, despite their right to present a defense. [20] The long-distance and multiple transfers documented in this report often make it impossible for non-citizens to produce evidence or witnesses relevant to their defense. A legal permanent resident from the Dominican Republic who had been living in Philadelphia but was transferred to Texas said:

I had to call to try to get the police records myself. It took a lot of time. The judge got mad that I kept asking for more time. But eventually they arrived. I tried to put on the case myself. I lost. [21]

In addition, the transfer of detainees often literally changes the law applied to them. This is because, prior to transfers, ICE often does not serve detained immigrants with charging documents (known as an NTAs, or Notices to Appear), thus establishing the law and court to hear their case. While NTAs are generally supposed to be filed within 48 hours, in practice there is no legally enforceable deadline, illustrated by the “many detainees identified by NGOs and attorneys who are sitting in detention for days, weeks, and sometimes months at a time without having received an NTA.” [22]

Thus, immigrants taken into custody in one place, for example, Pennsylvania, may spend days or weeks there before being transferred to, for example, Texas: if ICE waits until after transfer to file the NTA, not just the detainee, but the entire matter—including the law applied to the detainee’s case—is transferred to Texas. This can have a devastating impact on a detainee’s ability to defend against deportation because the act of sending a detainee from one jurisdiction to another can determine whether the law applied to her case will recognize her status as a refugee or permit her to ask an immigration judge to allow her to remain in the United States. [23] As the data analysis in this report shows, most interstate transfers end up in states within the jurisdiction of the Fifth Circuit Court of Appeals, which is known for its decisions hostile to the claims of immigrants.

Transfer can pose unique problems for detainees who are children, without a parent or custodian to offer them guidance and protection. [24] 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 US. 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 long-distance transfer of immigrants to remote locations takes an emotional toll on detainees and their loved ones. [25] Physical separation from family when immigrants are detained in remote locations, impossible for relatives to reach, creates severe emotional and psychological suffering. A sister of a transferred detainee told Human Rights Watch:

Ever since they sent him there [to New Mexico], it’s been a nightmare. My mother has blood pressure problems…. [His wife] has been terrified. She cries every night. And his baby asks for him, asks for “Papa.” He kisses his photo. He starts crying as soon as he hears his father’s voice on the phone even though he is only one.... Last week [my brother] called to say he can’t do it anymore. He’s going to sign the paper agreeing to his deportation. [26]

Given the serious implications for the fair treatment of detainees created by transfers, it is disturbing that the practice of transfers of immigrant detainees, including multiple and long-distance transports, continues unabated. Our analysis of data on the scope and frequency of detainee transfers follows.

 

[4] US Immigration and Customs Enforcement, Northeast Detention Briefing, Stakeholders Meeting, December 20, 2010 (on file with Human Rights Watch).

[5] For a detailed discussion of ICE’s transfer power, see Human Rights Watch, Locked Up Far Away, http://www.hrw.org/en/node/86760/section/6.

[6] US Department of Homeland Security, Office of Public Affairs, “2009 Immigration Detention Reforms,” Fact Sheet, August 6, 2009, http://www.aila.org/content/default.aspx?bc=1016%7C6715%7C12053%7C26286%7C31038%7C29726 (accessed April 29, 2011).

[7]Dr. Dora Schriro, special advisor on ICE Detention and Removal, US Immigration and Customs Enforcement, “Immigration Detention Overview and Recommendations,” October 6, 2009, http://www.ice.gov/doclib/about/offices/odpp/pdf/ice-detention-rpt.pdf (accessed May 11, 2011).

[8]Letter from Jane Holl Lute, deputy secretary of the Department of Homeland Security, to Michael Wishnie and Paromita Shah, July 24, 2009, http://www.nationalimmigrationproject.org/legalresources/Immigration%20Enforcement%20and%20Raids/Detention%20Standards%20Litigation/DHS%20denial%20-%207-09.pdf (accessed May 11, 2011) (denying the “Petition for Rulemaking to Promulgate Regulations Governing Detention Standards for Immigration Detainees”).

[9]“Update: ICE Agrees to Reduce Detainee Transfers,” Human Rights Watch news release, March 29, 2010, http://www.hrw.org/en/news/2010/03/29/update-ice-agrees-reduce-detainee-transfers.

[10]“ICE Announces Launch of Online Detainee Locator System,” Detention Watch Network news release, July 23, 2010, http://www.detentionwatchnetwork.org/node/2703 (accessed May 11, 2011).

[11] Letter from Human Rights Watch to ICE Director John Morton and American Federation of Government Employees National President John Gage, November 3, 2010, http://www.hrw.org/en/news/2010/11/03/us-immigration-system-should-meet-international-human-rights-obligations.

[12] 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.”).

[13]Executive Office of Immigration Review, “FY 2010 Statistical Year Book,” http://www.justice.gov/eoir/statspub/fy10syb.pdf (accessed May 11, 2011), p. 23.

[14]For a detailed discussion of the impact of transfers on detainees ability to secure or retain counsel, see Human Rights Watch, Locked Up Far Away, http://www.hrw.org/en/node/86760/section/8.

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

[16]Human Rights Watch interview with Michael M. (pseudonym), Pearsall Detention Center, Pearsall, Texas, April 25, 2008.

[17] Human Rights Watch telephone interview with Holly Cooper, immigration attorney and clinical professor of law, University of California Davis School of Law, Davis, California, January 27, 2009.

[18]Dr. Dora Schriro, special advisor on ICE Detention and Removal, US Immigration and Customs Enforcement, “Immigration Detention Overview and Recommendations,” October 6, 2009, http://www.ice.gov/doclib/about/offices/odpp/pdf/ice-detention-rpt.pdf, p. 24 (accessed May 11, 2011).

[19]For a detailed discussion of how detainee transfers violate the right to a bond hearing and to fair venue, see Human Rights Watch, Locked Up Far Away, http://www.hrw.org/en/node/86760/section/9.

[20]For a detailed discussion of how detainee transfers violate the right to defend against deportation, see Human Rights Watch, Locked Up Far Away, http://www.hrw.org/en/node/86760/section/10.

[21]Human Rights Watch interview with Miguel A. (pseudonym), Port Isabel Service Processing Center, Los Fresnos, Texas, April 23, 2008.

[22]Shoba Sivaprasad Wadhia, “Under Arrest: Immigrants’ Rights and the Rule of Law,” University of Memphis Law Review, vol. 38, Summer 2008, p. 853.

[23] For a detailed discussion of how transfer can alter the outcome of a particular detainee’s deportation case, see Human Rights Watch, Locked Up Far Away, http://www.hrw.org/en/node/86760/section/11.

[24] For a detailed discussion of how transfers affect unaccompanied minor children, see Human Rights Watch, Locked Up Far Away, http://www.hrw.org/en/node/86760/section/13.

[25]For a detailed discussion of the emotional burden that transfers place on detainees and their loved ones, see Human Rights Watch, Locked Up Far Away, http://www.hrw.org/en/node/86760/section/12.

[26]Human Rights Watch telephone interview with Georgina V. (pseudonym), sister of detainee, Brooklyn, New York, January 23, 2008.