Immigration Detention – Four Cases to Consider

Sunday, September 6th, 2009
By: Jonathan MontagJ.D.

I have been writing a whole lot about detention lately. Today I would like to discuss recent developments in four detention cases. I had bond hearings in two bond cases last week. It took about two weeks for each client to get a bond hearing because in San Diego only one judge per day conducts bond hearings and only in the morning. No bond hearings are held on Fridays or weekends (immigration is a strictly Monday – Friday affair, with most offices closed Fridays, though immigration courts are open Friday) and bond hearing must be set up 48 hours in advance. Thus, the earliest a person can get a bond hearing if he or she calls the court on a Wednesday (all calls before 10 a.m., please) is the next Monday. Usually, the earliest dates are booked. Then, the bond hearings start at 8 or 8:30 a.m. I would venture to say that most attorneys have some appointment or court date or interview already scheduled for some mornings in any upcoming two weeks, so there is also these conflicts to tend to.

Both hearings were short affairs – five minutes or so each. Both clients got bonds. The criteria is whether a person is a flight risk and/or a danger to the community. One client was detained based on a 1986 arrest. The judge determined that 23 crime-free years made him not a danger to the community. About two years ago he tried to surrender himself to Immigration and Customs Enforcement so he could get forgiveness that only an immigration judge could dispense, but ICE refused to take him into custody. He then tried through USCIS. They refused too. This convinced the judge he was not a danger to the community.

The other client was detained for a crime that one can be convicted of through negligence. Yes, Virginia, you can be deported for a negligent criminal act. The negligent act occurred four years ago. Again the judge determined the alien was neither a flight risk or a danger to the community.

It used to be that the Immigration and Customs Enforcement officers would set bonds for release wwhen an alien came into their custody. The regulations call for this. In fact, bond hearings are called “re-determination hearings” because the initial determination was made by ICE and gong to the judge was a way to lower an excessive bond or get a bond when ICE initially denied one. This practice saved the government losts of money – it costs the government more than $100 a day to detain someone. This is not an average cost (versus a much lower marginal cost), but an actual cost because aliens are incarcerated at a private jail in San Diego which bills the government per alien her day. For some reason, ICE will not set initial bonds anymore. In the two cases last week, each client was detained for two weeks and promptly released the day of their bond hearing. Had ICE set bonds (or released both aliens aftter serving them court documents – they really did not need bonds at all – they are not dangers or flight risks), the government could have saved nearly $3000. In addition, imagine the needless havoc to the clients – taken away from their family and jobs for two weeks. Some employers are not that sanguine about a client missing work for two weeks without warning because of an arrest by immigration officers.

A third case involves a man who has lived as a permanent resident for 50 years. He has no ties at all to his home country. He is subject to mandatory detention for a crime he committed in 2003 – more a ministerial failure (failing to file necessary papers) than a crime with any evil intent. For the same reason he is subject to mandatory detention, the nature of his crime by definition makes him ineligible for the normal forgiveness an alien can receive in court. However, there is relief available through other means. Unfortunately, it is time consuming to obtain this type of relief – it can take up to a year for all the hoops to be jumped through. Thus the poor man must spend a year in detention. He is obviously not a danger to the community because of the absence of real dangerousness or evil in his past criminal conduct. He is not much of a flight risk because of his long period of residence, his family ties, and his responsibilities in caring for a 10 year old daughter. Another reason he is not much of a flight risk is that he is disabled. He couldn’t run if he wanted to. The man will be granted relief from an immigration judge. Unfortunately it will take a year. It will cost the government $365,000 to detain him. He will lose his job and his home. His daughter will be subjected to God knows what. If a judge could set a bond, he would have.

And finally, a woman got released last week. She was subject to mandatory detention for a 2003 crime, as well. 2003 must have been a big year for crime, or maybe ICE is catching up with old criminals who pose a dire threat to our country year by year and is now up to 2003. She was taken into ICE custody in April. She is eligible for the standard forgiveness from the immigration court. She filed the relief papers at her very first court date – at the end of April. The earliest court date available is at the end of November. She will have to spend seven months in detention through no delays of her own for minor, victimless crimes all older than six years.

Despairing, despite being subject to mandatory detention, she went to court to seek release on bond. A judge reviewed the current state of the law. The Ninth Circuit Court of Appeals has been very critical of these prolonged detentions. So have many district courts around the country where habeas corpus actions have been taken. The Supreme Court has held that detention without some kind of hearing is permissible only if the upper limit of the length of detention is six months. You may recall from earlier postings that the Supreme Court decided in Demore v. Kim that mandatory detention of permanent residents was permissible because detention never lasts more than six months. The court found that detention should last in the majority of cases, for less than the 90 days, in 85 percent of the cases in which aliens are detained an average of 47 days and a median of 30 days. In the remaining 15 percent of cases, in which the alien appeals the decision of the Immigration Judge to the Board of Immigration Appeals, appeal takes an average of four months, with a median time that is slightly shorter. The court concluded “In sum, the detention at stake [under mandatory detention] lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal.” I wrote that this was all smoke and mirror statistics. I believe whoever in the Justice Department concocted those figures should be investigated for deceiving the Supreme Court.

After analyzing the delay in this lady’s case and the obvious crossing of the upper limit of six months through no fault of her own (the government argues that if an alien appeals what he or she believes is an erroneous decision, then his prolonged detention while on appeal is his or her own fault), the immigration judge, in a heroic move, set a bond. Weighing the strong equities in her case – she became a permanent resident here more than 30 years ago as a child, for one – he set a minimum bond. No one who has ever reviewed this case has concluded anything but that forgiveness is a foregone conclusion for this woman. She paid the bond and got out of detention this week after five months. The next morning, I got a fax from ICE. Their attorneys must have burned the midnight oil preparing stay motions to file with the Board of Immigration Appeals to order her back into custody. That compelled me to clear my calendar on Thursday to reply to the stay motion. With all the serious safety and security issues facing this country, one could imagine resources being devoted to something more significant that bringing a lady in her mid-thirties back into custody so she can languish for three more months before a judge talks to her for an hour and then forgives her and releases her. Fortunately, the BIA did not rule on the motion or reply before the Labor Day weekend. At least she can enjoy the holiday before the Inspector Javerts of the world pursue their justice.

If only Attorney General Eric Holder knew what is going on. If only President Obama knew what is going on. Rational people with an ounce of compassion would not abide by the inhumanity of the current custody laws and policies if they knew what was going on. People concerned about waste of tax money would not abide it either. People have got to find out what is going on.



2 Responses to “Immigration Detention – Four Cases to Consider”

  1. As a teacher, i have to deal with kids who have Attention Deficit Disorder. I guess in this case, with all the money that is being spent that will add to our national debt, we are dealing with Detention Deficit Disorder.

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