SYSTEMIC PROBLEMS PERSIST IN U.S. ICE CUSTODY REVIEWS FOR INDEFINITE DETAINEES. by Kathleen Glynn and Sarah Bronstein *

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1 SYSTEMIC PROBLEMS PERSIST IN U.S. ICE CUSTODY REVIEWS FOR INDEFINITE DETAINEES by Kathleen Glynn and Sarah Bronstein * I. INTRODUCTION U.S. Immigration and Customs Enforcement (ICE), the bureau within the Department of Homeland Security (DHS) that houses the Office of Detention and Removal, has ninety days to effectuate the deportation of an individual after removal proceedings are concluded and a final order of removal is entered against the non-citizen. 8 U.S.C. 1231(a)(1). Detention beyond this period is authorized under certain circumstances. 8 U.S.C. 1231(a)(6). The 2001 U.S. Supreme Court decision Zadvydas v. Davis held that post-removal-period detention is limited to a period reasonably necessary to effectuate removal from the United States; and found six months from the date of the final order of removal to be presumptively reasonable. 533 U.S. 678 (2001). Furthermore, the Court held it to be unlawful to continue to detain a person who has a final order of removal if it is unlikely the individual s home country or any third country will accept him or her in the reasonably foreseeable future. The Zadvydas regulations, which govern the post-order custody review procedure, were promulgated in November See Continued Detention of Aliens Subject to Final Orders of Removal, 66 Federal Register (November 14, 2001) codified at 8 C.F.R , , (2005). These regulations provide the procedures to be followed in determining whether an individual detainee will be detained or released following the ninetyday removal period (see 8 C.F.R ); whether there is a significant likelihood of removal in the reasonably foreseeable future (see 8 C.F.R ); and whether detention can be continued on account of special circumstances even where removal is not foreseeable (see 8 C.F.R ). This report reviews U.S. ICE s implementation of these regulations. The report is based on information gathered via telephone interviews, conducted between September 2004 and March 2005, with approximately twenty attorneys and other advocates working with or representing indefinite detainees. 1 The practitioners responded to the same set of interview questions, and shared observations and impressions based on their experiences in representing or otherwise advocating for detainees. In addition, many commented on the difficulties they perceived an unrepresented detainee would encounter in navigating postorder custody review procedures. CLINIC concludes from these interviews that implementation of the indefinite detention regulations is thwarted by a range of factors that vary depending upon geographic location, as well as the level of cooperation between U.S. ICE offices and local not-for-profit 1 For the purposes of this article, persons held ninety days or longer after a final administrative order of removal is entered are defined as indefinite detainees. 1

2 organizations or the offices of the Federal Public Defender in particular jurisdictions. Spotty internal record keeping of individual detainees length of detention, failure to conduct custody reviews during the mandated time frame because of understaffed local offices, and lack of communication and access to information about what is required of the detainee in order to cooperate with removal are some of the problems contributing to prolonged detention. U.S. ICE compliance with, and implementation of, the regulatory framework governing indefinite detainees is not uniform throughout the United States, nor even within individual U.S. ICE Field Offices. This article highlights issues of non-compliance that raise potential statutory and constitutional violations in various regions. II. THE NINETY-DAY REVIEW: LOCAL ICE OFFICES Section 241(a)(1) of the Immigration and Nationality Act, 8 U.S.C. Section 1231(a)(1), established a period of ninety days during which non-citizens could be maintained in custody after a final order of removal to give the federal government an opportunity to arrange removal. This is called the 90-day removal period. According to the Zadvydas regulations, an initial records review of each detainee by the district director or the Director of the Detention and Removal Field Office 2 is to be conducted prior to the expiration of the ninety-day removal period. 8 C.F.R (h)(1). The purpose of the initial custody review is to determine whether the person should be released while awaiting removal because he or she is not dangerous and is likely to appear for future removal. 3 The detainee should receive written notice of this first review thirty days before it is scheduled. 8 C.F.R (h)(2). The primary purpose of the notice is to provide the detainee time to submit information in writing in support of his or her release. 8 C.F.R (h)(2). The initial review focuses on two issues: (1) danger to public safety (the detainee must show that he or she is non-violent and will not commit any crimes) (8 C.F.R (e)(2)-(4)); and (2) flight risk (the detainee must show that he or she will not flee to avoid removal) (8 C.F.R (e)(5)-(6)). 4 2 The Homeland Security Act of 2002 reorganized the Immigration and Naturalization Service as a part of the Department of Homeland Security. Consequently, the positions of district director and the Director of the Detention and Removal Field Office were consolidated and renamed the U.S. ICE Field Office Director. The Field Office Directors are the regional heads of the Office of Detention and Removal. See generally the Homeland Security Act of 2002, Pub. L. No , 116 Stat. 2141, November 25, See 8 C.F.R (e): Criteria for release. Before making any recommendation or decision to release a detainee, a majority of the Review Panel Members, or the Director of the HQPDU in the case of a record review, must conclude that: (1) travel documents for the alien are not available or, in the opinion of the Service, immediate removal, while proper, is otherwise not practicable or not in the public interest; (2) the detainee is presently a non-violent person; (3) the detainee is likely to remain nonviolent if released; (4) the detainee is not likely to pose a threat to the community following release; (5) the detainee is not likely to violate the conditions of release; (6) the detainee does not pose a significant flight risk if released. 4 See 8 C.F.R (d)(1): Showing by the alien. The district director, Director of the Detention and Removal Field Office, or Executive Associate Commissioner may release an alien if the alien demonstrates to the satisfaction of the Attorney General or her designee that his or her release will not pose a danger to the community or to the safety of other persons or to property or a significant risk of flight pending such alien s removal from the United States. The district director or the Executive Associate Commissioner may 2

3 The preamble in the Federal Register to the Zadvydas regulations repeatedly emphasizes that aliens who are determined not to be a danger to the community or a flight risk may be released under regardless of whether there is significant likelihood of removal. See Continued Detention of Aliens Subject to Final Orders of Removal, 66 Federal Register 56967, (November 14, 2001) (emphasis added). However, the availability of a travel document at any stage in the custody review process may preclude release unless immediate removal is not practicable or in the public interest. 8 C.F.R (g)(3) (emphasis added). The detainee should receive a written response from the local office stating its decision to grant release or continue detention pending removal or further review. 8 C.F.R (h)(4). A decision to retain custody shall briefly set forth the reasons for the continued detention. 8 C.F.R (d). Practitioners interviewed in the course of this study expressed concerns about the actual operation of the local ninety-day reviews. The issues raised focus on questions of timing, notice, the standard employed in determining release, and the quality of the review. A. Timing of the Review When CLINIC asked practitioners about the timing of custody reviews, we received a spectrum of responses. Some practitioners reported that no review is conducted on or prior to detainees ninety-day detention mark; 5 others reported significant review and release rates at or near ninety days for those whose removal is not reasonably foreseeable. 6 Other practitioners experience has led to the conclusion that the ninety-day local review does occur, but not until much later in the detainee s detention, 7 and, in some cases, not until the length of detention approaches six months. 8 also, in accordance with the procedures and consideration of the factors set forth in this section, continue in custody any alien described in paragraphs (a) and (b)(1) of this section. 5 Attorney in Washington, D.C.; Attorney in Boston, MA, explained that the biggest problem in this area is that although detainees may get notice of a ninety day review, they do not actually receive the review unless they are from a country to which they cannot be removed; Attorney in Los Angeles, CA, explained that no reviews are occurring at ninety days; Attorney in Florida explained that some of her clients received no ninety day review, while others did, but much later than ninety days. 6 Attorney in Seattle, WA, explained that if detainees are clearly stateless, U.S. ICE is following procedures very well in that these detainees are usually released at ninety days, occasionally four to five weeks later; Attorney in Boston, MA, explained that it is actually worse to be from a place to which a detainee theoretically can be deported because there is no assessment of dangerousness or flight risk at ninety days for those whose removal is foreseeable; Advocate in Arizona explained that if a detainee is from a country to which they are not able to be removed they are released at ninety days; if from a country to which individuals can usually be removed they are held for at least six months. 7 Attorney in Chicago, IL, explained that the reviews are scheduled for ninety days, but actually occur another month to three months after the ninety days; Attorney in Boston, MA, explained that she has the impression that reviews, if occurring at all, are not on time. 8 Attorney in Louisiana explained that the local office review usually occurs at 180 days, even for those from countries to which removal is not foreseeable; Attorney in Detroit, MI, explained that a review is rarely completed within the ninety-day time frame; many times the review is pushed to six months, the time when U.S. ICE feels the threat of habeas petitions. 3

4 Some practitioners report inconsistencies in the review process itself, including the fact that not all detainees are afforded a review. 9 Those whose files are not reviewed are typically detainees from countries to which removal might be considered likely, such as Mexico. Other inconsistencies make an assessment of the source of non-compliance difficult. For example, one practitioner in Boston reports that the reviews are spotty. One detainee was held for nine months after his final order and never received a custody review, while another detainee received a review and was released at ninety days. 10 Finally, in many practitioners experience, it is difficult to ascertain if the reviews are in fact even occurring. 11 Advocates identified a number of possible factors that could contribute to disparities in compliance with the ninety-day review regulations. Lack of staffing, 12 inadequate recordkeeping, 13 or other administrative delay 14 seem to be the principal issues in local U.S. ICE offices where compliance is reportedly problematic. Strong relationships and communication between U.S. ICE officials and non-governmental organizations 15 or offices of the Federal Public Defender are often in place in other U.S. ICE offices where respondents report that compliance with procedures is better. 16 A number of practitioners also report that compliance with the ninety-day review regulations improved significantly upon increased communication with, and pressure from, local advocacy organizations, 17 or upon a change in the staff of the local U.S. ICE Field Office Attorney in New York; Attorney in Boston, MA, explained that the biggest problem in the Boston area is that although detainees may get notice of a ninety day review, they do not actually receive the review unless they are from a country to which they cannot be removed. 10 Attorney in Boston, MA. 11 Attorney in Boston, MA, explained that there is no proof that the officers are even looking at the file at ninety days; no way to hold them accountable to complete this review; Attorney in New York explained that detainees get a notice in the mail, but then there is no further communication; they do not know when or if the review occurred; Attorney in Portland, OR, explained that people often do not know if they had a review or not. 12 Attorney in Detroit, MI, explained that, if the local U.S. ICE office had more staff, the initial custody reviews would take place in a more timely manner; Attorney in New York explained that the local U.S. ICE office is grossly understaffed not enough Deportation Officers and a lot of cases in New York, our respondent estimated that there are seven or eight Deportation Officers and in New Jersey there are five. 13 Attorney in Boston, MA, explained that there appears to be no systemized way of keeping track of how long individual detainees have been in custody, so whether or not a detainee receives a ninety day review depends on the somewhat arbitrary procedures of individual deportation officers; Attorney in Boston, MA, explained the there is a lot of human error and backlogs. Compare this to a comment by an attorney in Seattle, WA, who explained that U.S. ICE is keeping good track of detainees and their review schedules. 14 Attorney in Chicago, IL, explained that, apparently due to administrative delay, detainees are usually released around their four-to-five-month mark in detention, not at ninety days. 15 Advocate in Arizona explained that the ninety-day initial review has occurred in a timelier fashion since her organization met with the Field Office Director and Assistant U.S. Attorneys to discuss procedures for implementation of the custody review process. This process is further described at PART IX. INTENSIVE NONPROFIT-BASED ADVOCACY: FIRRP. 16 Attorney in Seattle, WA, explained that U.S. ICE officials and federal public defenders have been working together since the Zadvydas decision to facilitate implementation of the mandates, which has improved U.S. ICE s implementation of custody reviews. 17 Attorney in Washington, D.C. 18 Advocate in Arizona. 4

5 An additional issue related to timing was raised by one practitioner from Washington, D.C. In the Washington area, U.S. ICE has misinterpreted when the ninetyday period begins. Even when detainees waive their right to appeal, U.S. ICE seems to wait for the appeal period to expire before they begin counting the ninety-day removal period. 19 This directly contradicts the regulations, which state that a removal order can be made final by an Immigration Judge if the detainee waives his or her right to appeal. 8 C.F.R Once the order of removal is final, the ninety-day removal period begins. B. Notice of the Review Practitioners also report that notice of upcoming reviews is not provided in a timely fashion, if it is given at all. In some cases, written notice of the review arrives after the date on which the file review was to occur. 20 Others report that some detainees receive the notice of the custody review just a few days prior to the review, and therefore have no time to prepare documents in support of supervised release. 21 In the Chicago area, full notice is given and detainees have the option of waiving the thirty-day notice period in order to expedite the review process. 22 However, in practice, the review does not typically take place any sooner when the notice period is waived. Representation or other advocacy plays a key role here. Detainees who have lawyers or other supporters can better understand the process and submit information regardless of whether formal notice was given. 23 C. Standard Used in Custody Reviews & Release Rates at Local Offices The standard employed by U.S. ICE in determining who is eligible for release up to the end of the ninety-day removal period appears to vary widely across the country. The Zadvydas regulations require that decisions on release or continued detention during the initial ninety-day period after a final order of removal be based upon a combination of the factors outlined in the regulations. The factors are dangerousness, flight risk, and the availability of travel documents. 24 Some U.S. ICE offices appear to be making decisions based on all appropriate factors. Advocates in other jurisdictions report that decisions seem to be based solely upon dangerousness. In other areas determinations seem to be made on foreseeability of future removal, although, under the regulations, foreseeability is not supposed to be considered until the six-month review, described below. 1. Imminent Availability of Travel Documents The Zadvydas regulations are initially somewhat confusing on the issue of when and how the future possibility of removal factors into release decisions. 19 Attorney in Washington, D.C. 20 Attorney in Boston, MA; Attorney in Detroit, MI. 21 Attorney in Pennsylvania. 22 Attorney in Chicago. 23 Attorney in Chicago explained that she is not sure if unrepresented individuals even file supporting documents beforehand C.F.R

6 * During the removal period (the first 90 days post-final-order), the regulations only require U.S. ICE to consider whether travel documents are imminently available for a particular detainee. The interim rule states that [t]he obligation of the Service to respond to issues concerning the likelihood of removal does not arise as long as the alien is still within the [90- day] removal period. 66 Federal Register at (November 14, 2001). * Release considerations made after the initial 90-day period can take into account foreseeability of future removal. 8 C.F.R At all reviews after the conclusion of the 90-day removal period, the Headquarters Post-Order Detention Unit (HQPDU or Headquarters ) shall consider all the facts of the case including, but not limited to, the history of the alien s efforts to comply with the order of removal, the history of the Service s efforts to remove aliens to the country in question or to third countries, including the ongoing nature of the Service s efforts to remove this alien and the alien s assistance with those efforts, the reasonably foreseeable results of those efforts, and the views of the Department of State regarding the prospects for removal of aliens to the country or countries in question. 8 C.F.R (f) (emphasis added). In practice, we conclude from our interviews that foreseeability of removal is often assessed by local U.S. ICE in connection with the 90-day review 25 (as well as by Headquarters, in connection with all subsequent reviews). 26 There are indications that U.S. ICE begins with the assumption that it can remove any and all detainees. 27 At the ninety-day review, those individuals who are from countries that generally do accept deportees (such as Mexico, El Salvador, etc.) are denied release based on the foreseeability of their removal, regardless of the fact their removal has not been effectuated in the statutory removal period, the lack of imminently available travel documents, and regardless of regulations allowing for detainees release if they do not pose a danger to the community or a flight risk. Detainees from countries that generally do not accept deportees (such as Cambodia, Vietnam, Laos and Cuba) are either released by local U.S. ICE without a Headquarters determination of foreseeability of removal under 8 C.F.R , or are denied release based on dangerousness and then referred for Headquarters review at a later date. At this point, as discussed below, they typically receive no determination on continuation of custody and eventually must file for habeas relief. 25 Local U.S. ICE arguably has the authority to release based on foreseeability of removal after the initial 90-day period, as well, although the regulations governing decisions of release or removal after the ninetyday period do not provide as much guidance on how to make the foreseeability determination. See 8 C.F.R (e)(1). 26 See PART IV. SECOND REVIEW: HEADQUARTERS AND RESORT TO HABEAS CORPUS Section below, reporting on the lack of information available on Headquarters reviews. 27 Attorney in Portland, OR. 6

7 A number of practitioners report that U.S. ICE appears to be making release decisions based solely upon a detainee s country of origin, and the likelihood of anyone from that country receiving travel documents within a short period. 28 In at least two areas, detainees often receive a ninety-day review determination that denies release based upon a one-line assessment equivalent to the statement that removal is imminent. 29 (It appears that individual determinations are not being made, as no specific information is provided on the detainee s particular case or circumstances, such as the scheduled date for removal or if the detainee has missing documents necessary to effectuate removal.) In some areas, U.S. ICE appears to equate the ready availability of travel documents with its initial contact with the appropriate consulate, 30 even if the consulate has yet to respond to the request for travel documents. 31 In the case of one detainee in Miami, U.S. ICE asserted that, based on past successful removals to the same country of origin, there was no reason to believe removal was not reasonably foreseeable for this individual. 32 Although U.S. ICE apparently did make an initial request for travel documents from the consulate, it did not follow up on that request until the detainee had been in custody for fourteen months. One practitioner in Boston explains that dangerousness and flight risk are not even assessed; instead, only an examination of the foreseeability of removal based on country of origin occurs. The beneficiaries of this practice are those detainees from Laos, Vietnam, Cuba and other countries that lack formal diplomatic relations with the United States, 33 and therefore normally do not accept people being removed from the United States. 34 The 28 Attorney in Boston, MA, explained that the ninety day reviews are based on reasonable foreseeability of removal; and in determining the likelihood of removal, U.S. ICE looks only at the country of origin and does not make an individual-based assessment; further explaining that there is no analysis of dangerousness or flight risk at ninety day review, if there is a review; also explained that Field Office Director questioned why someone would be released if deportation was reasonably foreseeable; Advocate in Arizona; Attorney in Boston, MA. 29 Attorney in Florida; Attorney in Detroit, MI, explained that at ninety days U.S. ICE sometimes says travel documents are in the mail and return is imminent, which may or may not be true. 30 Attorney in Boston, MA, explained that U.S. ICE claimed deportation was imminent because U.S. ICE had contacted the consulate. 31 Attorney in Chicago, IL, explained that if an embassy has not responded, U.S. ICE asserts that they are still waiting for a decision, but those decisions can often take a year; Attorney in New York, explained that waiting for the consulate to respond is often reason given by U.S. ICE for continuing to hold someone. 32 Attorney in Florida. 33 But see Jama v. Immigration and Customs Enforcement, 125 S.Ct. 694 (2005) (holding that 8 U.S.C. 1231(b)(2)(E)(iv) permits a non-citizen to be removed to a country without the advance consent of that country s government). The effect of this decision on those indefinite detainees from countries with which the United States does not have a repatriation agreement is not yet generally known, although, as of the completion of this article, the U.S. government had failed in its initial attempt to remove Mr. Jama from the United States. 34 Again, experience differs greatly across the country. For those detainees from countries to which removals do not occur (for example, Cuba, Vietnam, Laos), the fact that travel documents will not be available is not always automatically conceded by U.S. ICE. Release rates for nationals of these countries vary dramatically by region. In some areas, detainees in this category are released almost systematically at the end of ninety days by local U.S. ICE. (As reported by attorneys in Seattle, WA, and Boston, MA, and an advocate in Arizona). In contrast, other areas report that these detainees are not released routinely at the 7

8 victims of such a policy are individuals from countries that generally do accept deportees (i.e., Mexico, El Salvador, etc.), but for whom travel documents have not been issued for some reason (i.e., the detainee s country of origin has no record of his or her birth, the country of origin is generally slow in issuing travel documents, etc.). These individuals tend to remain in custody for prolonged periods of time 35 and are in definite need of representation in order to be released. 36 The practice of denying release based upon prior experience with other detainees violates the spirit if not the letter of the regulations, as it is inconsistent with an individualized determination about release. 37 In addition, when U.S. ICE makes a determination solely based upon its experience with other nationals of the same country, it is ignoring the factors upon which release during or at the conclusion of the removal period is supposed to be based: dangerousness to the community and or risk of flight. 38 Even if U.S. ICE were permitted to base the ninety-day refusal to release upon travel documents alone, the point of course is removal, not merely the acquisition of travel documents. U.S. ICE sometimes seems to view acquisition of the documents as the goal, failing to take into account removal backlogs. For example, approximately fifty Cambodians were removed in and practitioners experience suggests that hundreds of Cambodians are slated for eventual removal. U.S. ICE often asserts that removal is foreseeable for Cambodian detainees, even though, at the current rate of removal, it could take U.S. ICE many years to remove an individual detainee. It is interesting to note that, when federal courts are faced with the same issue, they ask how, if only 50 of several ninety-day mark, but rather at the expiration of six months. (As reported by attorneys in Detroit, MI, and Washington, D.C.) In some cases, extensive criminal background will postpone release until the six-month review, or the filing of a habeas corpus petition. In the Washington, D.C. area, if no repatriation agreement exists between the United States and a detainee s country of origin, release usually will occur at six months through U.S. ICE s administrative procedures. If there is a repatriation agreement, but an individual detainee is having a problem acquiring travel documents because of an issue with the consulate or confusion with his name, release typically will occur after six months and only upon the filling of a petition for habeas. 35 Attorney in Boston, MA; Attorney in Detroit, MI. As with all other issues involved in the ninety-day review, there are some variations. In some instances, U.S. ICE does understand that a particular detainee, for example, does not exist in a country s accessible records. U.S. ICE will acknowledge that removal may not be foreseeable even though this country usually does accept. (As reported by an attorney in Boston, MA.). 36 Attorney in Seattle, WA. 37 See 8 C.F.R (f), mandating individualized, case-by-case determinations of the foreseeability of removal (factors for consideration in the determination of whether there is a significant likelihood of removing a detained alien in the reasonably foreseeable future include: the ongoing nature of the Service s efforts to remove this alien and the alien s assistance with those efforts ). 38 See 8 C.F.R Attorney in Boston, MA; See also Fiscal Year 2003 Yearbook of Immigration Statistics, available at table 43: Aliens removed by criminal status and region and country of nationality: fiscal year , stating that 58 Cambodians were removed in FY 2003, 49 of whom are criminals and 9 of whom are non-criminals. In addition, Bill Herod, Coordinator of the Returnee Assistance Project in Phnom Penh, Cambodia, informally reports that the number of Cambodians repatriated under this program during the calendar year 2004 was 48. There may have been a few other routine deportations not accounted for by this number. 8

9 hundred Cambodians have been removed, an individual s removal could appropriately be considered imminent. 40 Another practitioner reports that, in his experience, it could take up to a year for a removal to occur to Haiti, but that U.S. ICE asserts at three months that travel permission will be imminently available Dangerousness: Decisions to Continue Detention Dangerousness is a permissible issue for U.S. ICE to consider in custody reviews during the ninety-day removal period. 42 A significant number of practitioners assert that the standard employed at the ninety-day review is based on dangerousness, and not on availability of travel documents. The way in which dangerousness is treated varies widely among U.S. ICE offices. An attorney in Chicago explained that a detainee s history of violent crime is the basis for decisions to continue detention at ninety days. An attorney in Louisiana explained that denials at the ninety-day review, whenever it occurs, are based on behavior in prison, previous convictions, and previous failures to appear for proceedings. An attorney in Seattle, WA, explained that at the ninety-day mark, release is denied based on noncooperation or that the criminal conviction in the detainee s background is so serious that Headquarters must review any release decision. Non-citizens with comparatively minor criminal convictions and significant supporting documentation may be released at ninety days in Miami, Florida. However, some detainees are denied release based on dangerousness when they have only nonviolent convictions. 43 Some practitioners assert that the offenses listed as justification for continued detention are incorrect or exaggerated. 44 For example, one advocate reported to CLINIC that she sometimes had seen extra convictions added to a detainee s record. 45 Another reports that a decision to continue detention may state that the person is a hardened criminal even though the individual s criminal history shows that he was sentenced to county jail for a comparatively minor crime. 46 Contradictory results in the same local U.S. ICE office caused some practitioners to express confusion about how the standard is implemented. For example, in Arizona, before the change in local U.S. ICE officials, one detainee with a murder conviction was released at ninety days while another detainee with a shoplifting conviction was not released. 47 Similar release inconsistencies occur in the Detroit area, with one practitioner commenting that sometimes individuals with significant criminal records are released, while others with no prison time are denied release. 48 In addition, some detainees have comprehensive 40 Attorney in Florida, commented that the federal courts look to the individual s circumstances. 41 Attorney in Florida. 42 See generally 8 C.F.R (e)(2)-(4); 8 C.F.R (f)(2), (8)(ii-iv). 43 Attorney in Florida. 44 Advocate in Arizona; Attorney in Detroit, MI; Attorney in Louisiana. 45 Advocate in Arizona. 46 Attorney in Detroit, MI. 47 Advocate in Arizona. 48 Attorney in Detroit, MI. 9

10 supporting documents and are not released, 49 while those with no supporting documents are released. 50 Some of these inconsistencies may be due to differing likelihoods of removal, but not all. In some offices, even those for whom travel documents almost certainly will not become available are held for six months if they have committed a crime. For example, an attorney in Chicago, IL, reported that if a detainee has a violent crime, even though he or she cannot be removed, a decision to continue detention at the ninety-day mark is most likely. An attorney in Boston, MA, explained that, for individuals from countries to which removals do not typically occur, release occurs at ninety days if the person has no serious criminal conviction; in contrast, U.S. ICE may take the 180 days if the person has a significant number of criminal convictions, even if it is highly unlikely that travel documents will become available. According to one practitioner in Portland, OR, sex offenders are put on the bottom of the review pile without regard to their country of origin. 51 The uneven implementation of the Zadvydas regulations, where in some cases travel documents are emphasized over dangerousness and vice-versa, has the effect of benefiting certain groups of detainees over others. Nevertheless, the regulations clearly contemplate that all post-hearing elements (availability of travel documents, dangerousness, flight risk) are supposed to be assessed. If the post-hearing release process is to be predictable for detainees and those assisting them, all elements should be implemented. A rational system that comports with the mandate of Zadvydas would, at or before the expiration of the 90-day removal period, ask: (1) whether the particular individual can be removed. If the answer clearly is no, the non-citizen can not be removed, then the individual should be released. If the answer clearly is yes, the individual can be removed, and removal can be accomplished within a matter of days, then the individual should continue in detention. (2) If neither of these clearly is the case, due to factors including consular delays and uncertainty about citizenship, then an analysis should be made whether the person is dangerous or a flight risk: If yes, then detention could continue. If not, the person should be released while the travel document request is pending. 49 Attorney in Washington, D.C., explained that in one particular case, the detainee had a comprehensive package of information at all stages and was never released. 50 Advocate in Arizona. 51 Attorney in Portland, OR. 10

11 3. Non-cooperation Non-cooperation with removal also has been asserted as a reason for denial at the ninety-day period. For more information on non-cooperation, see Section V. NON- COOPERATION below. 4. Presumptively Six Months In some regions, U.S. ICE ignores regulations relating to the ninety-day custody review and holds detainees for six months simply because it thinks it can under the presumptively reasonable six months language of Zadvydas. 52 Practitioners report that detainees who are clearly eligible for release under Zadvydas because removal is not reasonably foreseeable are not being released until the completion of the six-month timeperiod is imminent, even if they are not dangerous. 53 In the Washington, D.C. area, virtually no one is released at ninety days. 54 Instead, the local office claims that it is Headquarters responsibility to authorize release, but not until six months. In essence, in some areas, it appears that local U.S. ICE officials interpret Zadvydas to have expanded the removal period from ninety days to six months. D. Quality of Review Most practitioners report that ninety-day reviews, if provided at all, are cursory. 55 The paperwork submitted by detainees or their advocates for the reviews is sometimes lost, 56 which makes adequate and informed individualized determinations impossible. In addition, many detainees are not aware of the ability to file supporting documents, or have been given little notice of this right, precluding their presentation of a stronger case for release. Again, practitioners experience about the quality of reviews varies widely. Some practitioners report that if a review occurs and if a written notice of denial is issued, there is usually an indication that some level of individualized attention was given to the review. For example, in Arizona, denial notices will indicate whether certain pieces of information were in the file or not. Typically, the decision will mention the detainee s arrests and convictions, although sometimes extra convictions are listed. 57 In one particular case, U.S. ICE 52 Attorneys in Florida and Louisiana explained that U.S. ICE believes it has six months to remove detainees; Attorney from Boston, MA, explained that U.S. ICE is reading Zadvydas incorrectly U.S. ICE sees the 180 day limitation and assumes this to be time frame detainees can wait while ICE attempts removal. 53 Attorney in Portland, OR, explained that everyone is released at 6 months; Attorney in Florida, reports that, even if a detainee is clearly eligible for release under Zadvydas and is not dangerous, U.S. ICE usually keeps the detainee for another three months until the six month time period is threatening. 54 Attorney in Washington, D.C. 55 Attorney in Florida. 56 Attorney in Boston. 57 Advocate in Arizona. 11

12 continued detention asserting that the detainee was a danger to the community, even though the only accurate conviction listed was for shoplifting. 58 In Louisiana, decisions received by detainees utilize boilerplate language, although, again, there are indications that some level of individualized review has occurred. 59 Often the detainee s conviction is listed on the decision to continue to detention, and the information contained in the decisions is otherwise facially correct. In a small number of cases, this practitioner has seen inflated descriptions of convictions or incorrect convictions. 60 In Detroit, written decisions are provided via form letters. 61 However, one sentence is typically personalized, and the decision contains information that suggests local officials have looked in the file and made inquiries. However, the written decisions are not always facially correct. For example, the letter may say that the person is a hardened criminal when his criminal history was, in fact, minor. In addition, the letter may say departure is imminent but then, two months later, the detainee is still in custody. In contrast, at least two practitioners interviewed by CLINIC reported little evidence of individualized review. In the Washington, D.C. area, one practitioner indicates that the review itself is boilerplate, and any written decisions received contain no explanation as to why release was denied. 62 In Boston, the decisions to continue detention often contain mistakes. 63 For example, Russia is referred to as the Soviet Union or the detainee s gender is listed incorrectly. In Seattle, however, the level of individualized review appears to be greater than in other regions. 64 One practitioner reports that U.S. ICE officials provide straightforward justifications for release or denial in individual cases. The accuracy of the biographical information is very good. Rarely are people kept in custody unless they are objectively dangerous or travel documents legitimately are imminently available. The wide disparities reported across the country on both availability and quality of ninety-day reviews reflect the great discretion that local offices exercise both in interpretation of Zadvydas regulations and their application to particular individuals. In at least one region, the local office interprets the regulations as providing them with no discretion to look beyond foreseeability of removal, even though, as discussed above, foreseeability is not a required determination at the ninety-day mark, while dangerousness and flight risk must be assessed under 8 C.F.R Additional evidence of the wide discretion wielded at the local level comes from one practitioner s account of an enormous 58 Advocate in Arizona noted that things have improved with a change in local U.S. ICE staff and increased communication. 59 Attorney in Louisiana. 60 Attorney in Louisiana. 61 Attorney in Detroit, MI. 62 Attorney in Washington, D.C. 63 Attorney in Boston, MA. 64 Attorney in Seattle, WA. 65 Attorney in Boston, MA, explained that local U.S. ICE believes they have no discretion; there is a blanket failure to exercise discretion in determining release. 12

13 change in release rates after a change in the local office s staff. In Eloy, Arizona, the release rate went from approximately five percent at the ninety-day mark to approximately 95 percent after a staff change in the local office. 66 Individual deportation officers decisions can also vary significantly within a particular field office; and, consequently, affect the entire custody review process. Different deportation officers often have divergent ideas about which countries are willing and able to accept detainees. 67 Thus, whether U.S. ICE considers travel documents to be imminently available could vary significantly based upon the deportation officer assigned to his or her case. Some practitioners also have questioned deportation officers decisions about the order in which detainees are reviewed. Although the authority to choose the order in which cases are reviewed is explicit in the regulations, 68 the fact that some detainees appear to be moved to the head of the review line opens U.S. ICE to the criticism that the agency is being selective in its reviews of cases. 69 It also raises questions about who is keeping track of an individual detainee s length of detention. As detainees pass many months without review, the distinction between deciding upon the order in which detainees are reviewed (which is authorized) and whether to review (which is not) becomes narrower and narrower. It is possible that uneven or inadequate training, or other staffing decisions, affect discrepancies between officers and offices in how or whether reviews are conducted. 70 E. Summary In summary, interviews with practitioners reflect nationwide and inter-office discrepancies in the timing of custody reviews, notice, standard of decision-making, and quality of review. Timing of Review: While practitioners in some regions report that the ninety-day reviews are occurring as scheduled, other practitioners observe that they occur late or not at all. U.S. ICE collaboration with a local not-for-profit organization or a an office of the Federal Public Defender appears to increase the possibility that that reviews do in fact occur, and in a timely manner. 66 Advocate in Arizona, Attorney in Los Angeles, CA, explained that a lot depends on the patterns and priorities of the District Director. 67 Attorney in Boston, MA C.F.R (c)(1): The district director or the Director of the Detention and Removal Field Office shall maintain appropriate files respecting each detained alien reviewed for possible release, and shall have the authority to determine the order in which the cases shall be reviewed. 69 Attorney in Detroit, MI, explained that ICE says they are behind on their cases, which is why detainees are being held beyond the ninety days. They also say that they can choose who to review, i.e., certain Cuban detainees are out at ninety days. 70 Underlying all of these concerns is the fact that practitioners have no information about the training that deportation officers receive on post-order custody review procedures. Although new officers receive training upon hiring, it is not clear that this is topic-specific, or tailored to the post-order custody review process. Finally, in some districts, particular deportation officers are assigned to do reviews, whereas in others the responsibility rotates and is just one piece of each individual officer s assignment. A possible lack of training, and inconsistency in assignment of custody review cases, may also contribute to the nationwide discrepancies in rates of review as well as release. 13

14 Notice: Notice is often not given, or given too late to permit the detainee to prepare and submit effective documentation for the review. Standard of Decision-Making & Release Rates: o The rates of release resulting from ninety-day reviews also vary widely across the country. Practitioners observations run the gamut from high release rates around the ninety-day mark for those detainees for whom travel documents are not readily available, to little to no release taking place at ninety days, regardless of whether an individual can readily obtain travel documents. o The disparity in release rates is a reflection of the variety of bases utilized by U.S. ICE in its custody determinations. Neither U.S. ICE nor Headquarters appears regularly to assess the availability of travel documents on a case-bycase basis. Instead, release, if it occurs, appears to be based upon an individual s country of origin and U.S. ICE s record of successful removals to that country in the past. Denial often is based upon the imminent arrival of travel documents, which is often alleged even when the individual detainee s circumstances make it unlikely. For those individuals who are from countries that are slow in issuing travel documents, or detainees whose citizenship is in question, release does not appear to routinely occur under 8 C.F.R , even if there is no danger to the community or risk of flight. o Dangerousness seems to be considered by some offices and not others. The objective severity of crimes that trigger a dangerousness determination varies greatly between offices. o The disparity in release rates is also a reflection of the large amount of discretion exercised in interpreting and implementing the regulations. Different field offices, and in some cases, different deportation officers within the same field office, are make different determinations about similarly situated individuals. Quality of Review: We conclude from our interviews that local U.S. ICE offices are often not making ninety-day reviews using a meaningful and individualized assessment of detainee circumstances. In situations where determinations appear to be individualized, they may incorporate factual errors. III. INTERMEDIATE REVIEWS AT THE DISTRICT The local U.S. ICE office may retain the responsibility for custody determinations for up to three months after the expiration of the ninety-day removal period, during which time additional custody reviews may be conducted. 8 C.F.R (k)(1)(ii). Local U.S. ICE sometimes decides to release detainees before jurisdiction is transferred to the HQPDU at the six-month mark. 71 In the Chicago and Boston areas, local U.S. ICE appears to hold the file for six months (i.e., three months in addition to the initial ninety-day removal period), often 71 Attorney in Louisiana; Attorney in Portland, OR; Attorney in Chicago, IL. In contrast, in the Detroit area, if the ninety-day review is performed closer to six months than three months because of local U.S. ICE s delay in scheduling it, local U.S. ICE may automatically deny release and turn the file over to Headquarters, instead of reviewing it themselves. 14

15 informally reviewing it again before transferring it to Headquarters. 72 One practitioner in New York 73 illustrates the potential negatives to a seemingly similar procedure in effect in his district. He reports that local U.S. ICE prepares and sends a recommendation to Headquarters at the 180-day mark. Headquarters then takes another one to two months to respond. This process, and Headquarters delay in responding to recommendations, effectively extends the length of detention by two months beyond the presumptively reasonable time period of six months. Our respondent observes that the New York Field Office Director currently is taking steps to have the review completed and the recommendation sent to Headquarters before detainees six-month mark, in an attempt to minimize the length of detention for detainees. In contrast, in some cases, detainees have been released at six months by local U.S. ICE as a result of this re-assessment at the local level. This appears to be the case in Louisiana, where it is the local office that conducts a file review around 180 days. 74 If a detainee s removal is not foreseeable at this point, he or she is typically released (perhaps to supersede a petition for a writ of habeas corpus). 75 Paperwork problems can result from a lack of clarity about when the U.S. ICE district forwards the file to Headquarters. In Arizona, advocates believe that the deportation officer forwards the detainee s file after the denial at ninety days. 76 Consequently, after the ninety-day mark, detainees generally send their documents to Headquarters. However, these documents get lost between the local U.S. ICE office and Headquarters because frequently the local office has yet to send the file to Headquarters, and material submitted before the file transfer never catches up with the file. IV. SECOND REVIEW: HEADQUARTERS AND RESORT TO HABEAS CORPUS When the district director or Director of the Detention and Removal Field Office has conducted the initial ninety-day review and has advised the detainee that he or she will remain in custody, but is then not able to effectuate the removal of the detainee within three months of this decision, authority over the custody determination transfers to the Headquarters Post-Order Detention Unit (HQPDU) in Washington, D.C. 8 C.F.R (k)(2)(ii). The initial HQPDU review is to be conducted at the expiration of the threemonth period after the ninety-day review, and the detainee is to receive thirty days notice of that review. 8 C.F.R (k)(2)(ii). The HQPDU review is essentially a three-step process: (1) HQPDU looks at whether the detainee has cooperated with efforts to apply for and obtain travel documents. 8 C.F.R (e)(2). See 72 Attorney in Chicago, IL; Attorney in Boston, MA. 73 Attorney in New York, NY. 74 Attorney in Louisiana. 75 Attorney in Louisiana. 76 Advocate in Arizona. 15