(Washington) - A draft policy to clarify when and under what circumstances Immigration and Customs Enforcement should request that local law enforcement agencies detain immigrants is a positive step, but serious problems remain, Human Rights Watch said today. In a letter to Janet Napolitano, Secretary of the Department of Homeland Security, Human Rights Watch outlined proposed steps to revise the policy to strengthen human rights protections. The letter follows:
Secretary Janet Napolitano
US Department of Homeland Security
Washington, DC
Dear Secretary Napolitano:
Thank you for the opportunity to provide input to Immigration and Customs Enforcement's (ICE) draft detainer policy (hereinafter the "draft policy"). Human Rights Watch is one of the world's leading independent organizations dedicated to protecting and defending human rights. We have documented our concerns about US immigration policies in multiple reports, many of which are available here.
Generally, detainers are a notice from ICE to a local law enforcement agency (LEA) that ICE seeks custody of an alien held by an LEA, and the federal regulation on detainers (8 CFR 287.7) provides LEAs with authority to detain non-citizens for up to 48 hours. The ICE draft policy seeks to clarify the parameters for the use of these detainers. While the draft policy is an important step forward in clarifying how ICE should use detainers, serious problems remain.
The draft policy does not require that there be a clear legal basis for the issuance of a detainer, and therefore it fails to provide detainees with any grounds to challenge their custody under a detainer. The International Covenant on Civil and Political Rights (ICCPR), which the United States ratified in 1992, requires in Article 9 that persons deprived of their liberty be informed of the reasons for their arrest and be able to take proceedings before a court in order to challenge their custody. The draft detainer policy states in Section 4.2: "If an immigration officer has reason to believe that an individual in the custody of an LEA is subject to ICE detention for removal ... the immigration officer may issue a detainer." The "reason to believe" language in the policy is so vague that it offers little protection against arbitrary detention, in violation of the ICCPR.
In addition, the draft policy makes no mention of when a Notice to Appear should be served upon an alien. If the legal ground for issuing a detainer is a non-citizen's alleged violation of the immigration laws, then non-citizens should be notified of the grounds of deportability when detention under the immigration detainer begins, or at latest 48 hours after the detainer has been issued.
Moreover, the draft policy provides no safeguards to ensure that persons held in custody under detainers are never held longer than the 48 hours allowed. Human Rights Watch is familiar with cases in which a person has been held for longer than the 48 hours provided for in the current regulation. The draft policy should be revised to ensure that custody may not continue past the 48-hour time period.
We furthermore have been concerned that the broad availability of detainer holds has motivated local law enforcement agencies to undertake pretextual arrests, arrests with no independent bases and for the sole purpose of seeking that an immigration hold be placed on the arrestee. We are therefore pleased to see the language in the draft policy requiring at minimum an arrest by local law enforcement for a criminal violation and limitations on the use of detainers as a result of traffic violations.
Any deprivation of liberty must be tied to a legitimate government purpose. Detainers should be used only when an individual is a flight risk or is dangerous. In light of ICE's commitment to focus on non-citizens convicted of serious crimes, detainers should not be issued when a person is arrested for a non-violent crime, a misdemeanor, or a traffic violation (except in extremely limited circumstances). Although the draft policy states, "ICE agents should be careful when issuing detainers against lawful permanent residents," this vague language does not sufficiently acknowledge that these immigrants are the least likely to abscond given their family relationships and community ties within the United States. ICE agents should be required to find that a lawful permanent resident is a flight risk or danger prior to the issuance of a detainer.
We also believe that ICE should record data on the use of detainers to allow for a review of their effectiveness. We would like ICE to track the duration of time individuals spend in the custody of local law enforcement on the basis of an ICE-issued detainer. We are curious as to how many persons are held under detainer who are not ultimately served with a Notice to Appear. We would like to know the underlying basis for the issuance of each detainer. Finally, we would also like ICE to track data on the immigration status of persons held under detainer, including how many US citizens are placed under detainer holds (a violation of the detainer regulation, which only applies to "aliens").
We thank you for the opportunity to comment on the draft detainer policy. We applaud ICE's efforts to improve its current detainer system, and we appreciate the department's openness and engagement on this important issue.
Sincerely,
Antonio M. Ginatta
Advocacy Director, US Program
Human Rights Watch
