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Testimony of Margaret H. Taylor

Professor of Law

Wake Forest University School of Law

 

Hearing Before the Subcommittee on Immigration and Claims

Judiciary Committee

House of Representatives

 

December 19, 2001

 

 

 

Mr. Chairman, Representative Jackson Lee, and distinguished members of the Committee, I appreciate the opportunity to testify before you today.

 

My name is Margaret Taylor. I am a Professor of Law at Wake Forest University.  Much of my work over the past ten years has focused on INS detention policy.

 

My remarks focus first on problems with mandatory detention embodied in INA § 236(c), and second on the alternative of supervised release.  I will conclude by noting some additional concerns closely linked to these two issues.

 

I.  The Problems with Mandatory Detention

 

There is a central paradox that governs immigration detention:  The key to having a fair and efficient detention policy is to pay more attention and devote more resources to release decisions.  I know that it is tempting to conclude otherwise-the safest course, it seems, is to lock everybody up and not let them out until they are removed from the country.  That is the approach that the 1996 Act takes as to criminal offenders.  INA § 236(c) require detention during the pendency of removal hearings for any alien inadmissible or deportable for a criminal offense; the only exception is for a single crime involving moral turpitude resulting in a term of imprisonment for less than a year.  A wide array of nonviolent and minor offenses are encompassed in this mandate. The statute does not permit any consideration of whether the individual presents a risk of flight or danger to the community. Here I’ll briefly note four problems with the “lock 'em all up” approach:

 

First, the INS simply doesn’t have the capacity-in bed space, management structure, or expertise in detention operations-to incarcerate everyone who comes through the system, or even everyone who is inadmissible or deportable on criminal grounds.  This is not a problem that the Service can outgrow.  INS detention capacity has skyrocketed in recent years through increased reliance on state and local jails. This creates enormous problems of management and oversight, and has a devastating impact on INS detainees-including asylum seekers who are locked up with the criminal population in local jails. Additional rapid growth will only exacerbate these problems. 

 

Second, it is an unnecessary drain on INS and taxpayer resources to incarcerate people who do not present a risk of flight or a danger to the community.  Moreover, it deprives the INS of much-needed flexibility to make the best use of its limited bed space when the governing statute requires that nonviolent offenders--including individuals who have never served a day in prison for their underlying criminal conviction--be detained during the pendency of their removal proceedings.

 

Third, mandatory detention under INA § 236(c) is based on a preliminary assessment of whether the individual is inadmissible or deportable.  In many instances, that conclusion turns out to be wrong.  INS detention destroys lives, it robs U.S. citizen dependents of their only means of support, and it tears apart families.  And yet, pursuant to the statutory mandate, these devastating consequences are imposed without any assessment of whether, in the end, an individual might be granted some form of relief or even found not to be deportable.  To illustrate, consider the following stories of three people who were subject to mandatory detention but ultimately prevailed in contesting their deportation:

·    Joe Van Eeten, a decorated Vietnam veteran, was detained by the INS for almost five months, until a district court in Oregon ruled held that his mandatory detention pursuant to INA § 236 (c) violated due process.  Van Eeten claimed that he had been naturalized in a ceremony at Camp Pendleton, California just before being sent to Vietnam.  But the INS disputed his claim to citizenship.  Six months after he was ordered released, an immigration judge terminated removal proceedings against him.  That decision was later upheld by the BIA.  Were it not for the district court’s order, Van Eeten would have been subject to mandatory detention for the duration of the administrative process that, in the end, established that he was not deportable.   See Van Eeton v. Beebe, 49 F. Supp. 2d 1186 (D. Or. 1999), appeal dismissed as moot, No. 99-35470, 2000 U.S. App. LEXIS 22741 (9th Cir. Sept. 7, 2000);  Don Hamilton, Immigration Judge Decides Against Deporting Ex-Marine-Judge Michael H. Bennett Says Activist Joe Van Eeton Became a U. S. Citizen Before He Shipped Out to Vietnam in 1968, Portland Oregonian, Sept. 21, 1999, at E1 (1999 WL 5374338).

·    Hawa Said immigrated to the United States at the age of one, and her father naturalized when she was a minor-giving her a claim to derivative citizenship.  Said was put in removal proceedings and subject to mandatory detention based on a drug conviction for which she served thirty days in jail.  INS initially sent Said-who was pregnant at the time-to a detention facility in San Diego, more than 2,000 miles from her home, family, and legal counsel in Alaska.  A district court subsequently ordered her returned to Alaska, stating that she had made a prima facie case of citizenship based on her father’s naturalization.  After six months in INS detention-six times what she had been required to serve for her state conviction-INS agreed to grant Said withholding of removal on the condition that she not pursue her claim to citizenship in immigration court.  A few months after that, the U.S. State Department recognized her citizenship and issued her a passport.  See Said v. Eddy, 87 F. Supp. 2d 937, 939 (D. Alaska 2000); Said v. Eddy, No. A99-0482-CV (D. Alaska Aug. 9, 1999); Anthony Lewis, Cruel and Unneeded, New York Times, Oct. 5, 1999.

·    Jodey Gravett, a decorated Vietnam veteran and likely the son of an American serviceman, was detained by the INS for more than four months before his immigration proceedings were ultimately terminated.   Adopted by American parents from a Japanese orphanage when he was 12 years old, Gravett has lived in the United States for over forty years. After serving a two-month jail term stemming from the discovery of three marijuana plants at his home, Gravett was placed in removal proceedings by INS for this and another drug possession conviction and was subjected to mandatory detention under § 236(c).  A state court subsequently changed his more recent conviction and erased the previous one entirely.  Based on these changes, an immigration judge ruled that Gravett was no longer deportable and terminated his removal proceedings.   Even if his convictions had not been altered, Gravett’s immigration proceedings might have been terminated based on a claim of U.S. citizenship stemming from his military record in Vietnam and the citizenship of his father.  See Leonel Sanchez, INS Moves to Deport Vietnam Vet; Legal Immigrant Has Felony Record, The San Diego Union Tribune, February 11, 1998, at B7 (1998 WL 3991627); Leonel Sanchez, Deporting of Heroic Veteran is Blocked; Man’s Criminal Record is Amended, The San Diego Union Tribune, April 16, 1998, at B7 (1998 WL 4004476).

 

Finally, mandatory detention violates due process precisely because it does not allow an immigration judge to make custody determinations based on the facts of individual cases, such as those included in the stories above.  Freedom from imprisonment lies at the heart of liberty protected by the Due Process clause.  Foucha v. Louisiana, 504 U.S. 71, 80 (1992).  The Supreme Court recently reminded us, in its decision in Zadvydas v. Davis, that “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”  121 S.Ct. 2491, 2500 (2001).  Mandatory detention violates due process because it infringes on the most fundamental of liberty interests indiscriminately, without any determination of whether the individual detained poses a risk of flight or a threat to the public.  Cf. United States v. Salerno, 481 U.S. 739 (1987)(deprivation of fundamental liberty interest cannot be excessive in relation to the government's interest); Zadvydas, 121 S.Ct. at 2498 (“strict procedural safeguards” and a “sufficiently strong special justification” must be present to justify detention based on dangerousness).  In addition, due process requires that persons detained by the government must have the opportunity to contest their continued incarceration before a neutral adjudicator.  See Leader v. Blackman, 744 F. Supp. 500 (S.D.N.Y. 1990)(striking down an earlier incarnation of mandatory detention, noting that “there is a liberty interest that is implicated when one is detained, which creates the right to a bail hearing”); St. John v. McElroy, 917 F. Supp. 243 (S.D.N.Y. 1996).  The majority of district courts to consider the issue have concluded that detention mandates in the Immigration and Nationality Act are in fact unconstitutional.  See e.g. Shurney v. INS, No. 01CV1906 (N.D. Ohio Nov. 9, 2001); available at http://www.ohnd.uscourts.gov/Clerk_s_Office/Notable_Cases/notable_cases.html (collecting cases at footnote 2); Small v. Reno, 127 F. Supp. 2d 305 (D. Conn. 2000);       Sharma v. Ashcroft, 158 F. Supp. 2d 519 (E.D. Pa. 2001); Welch v. Reno, 101 F. Supp. 2d 347 (D. Md. 2000); Vang v. Ashcroft, 149 F. Supp. 2d 1027, (N.D. Ill. 2001); Kim v. Schiltgen, No. C99-2257 SI, 1999 U.S. Dist. LEXIS 12511 (N.D. Cal. Aug. 10, 1999); Martinez v. Greene, 28 F. Supp. 2d 1275 (D. Colo. 1998).

 

II.  Supervised Release As An Alternative to Detention

 

I am, of course, aware of the studies suggesting that many aliens do not appear at removal hearings, and that removal orders are seldom enforced against individuals who are not in INS custody.  But that does not mean that everyone (or even all criminal offenders) should be detained, for the reasons discussed above.  Instead, it means we need to pay more attention to the release side of the equation.  The INS needs to develop an effective system of reporting and supervision for aliens in proceedings. 

 

It is worth noting that supervised release is woven into the fabric of our criminal justice system.  The majority of criminal defendants are released subject to supervision pending trial.  Appearance rates vary slightly from jurisdiction to jurisdiction, and across the range of criminal charges.  But a recent study of felony defendants suggests that, on average, 76% of those who were released pending trial reported for all court appearances.  Most of those who missed a single appearance were later returned to court, and only a small fraction-5%--of felony defendants released pending trial were considered fugitives.  This data shows that we do not need to reinvent the wheel to create an effective supervision program.  It also tells us that most aliens who have been convicted of a crime and are in the midst of deportation proceedings have already demonstrated that they will comply with a supervised release program. 

 

I was privileged to serve on the advisory board when the Vera Institute of Justice ran a three-year demonstration project of community supervision for people in immigration proceedings, known as the Appearance Assistance Program.  The central idea, which was empirically tested and proven, was that the well-developed expertise on how to operate a supervised release program in the criminal context can be successfully applied to the immigration proceedings.  The AAP intake process gave INS officers far more extensive and complete information to support their detention and release decisions-which by itself was a significant benefit of the program.  Moreover, AAP intensive participants appeared in immigration court at significantly higher rates than the comparison group-91% showed up at all of their hearings.  Finally, Vera’s study documented that supervision is more cost effective than detention to ensure appearance at immigration hearings.  Full information on the AAP may be found in Sullivan, et al, Testing Community Supervision for the INS: An Evaluation of the Appearance Assistance Program, Final Report to the Immigration and Naturalization Service, August 1, 2000. The report is available on the Vera website, www.vera.org.

 

III.  Related Concerns

 

A.  Preventive and “Symbolic” Detention

 

Mandatory detention is closely tied to two other issues:  preventive detention-locking people up because we think they might be dangerous-and what I call “symbolic” detention-an idea I have developed in some of my writings.  I want to briefly note concerns about these two issues.

 

The Supreme Court in Zadvydas stressed that the Constitution imposes stringent limits on preventive detention, and these limits apply in the immigration context.  121 U.S. at 2499-2502.  The goal of INS detention is to effectuate removal from the United States.  And detention loses legitimacy when it is severed from this goal.  Id. at 2504-05

 

For that reason, I’m concerned with a growing “symbolic” component of immigration detention-the idea that we need to ratchet up the level of immigration detention to signal that the government is “getting tough” in a particular area of immigration enforcement.  Mandatory detention of all criminal offenders, regardless of the risk of flight or danger to the public, has a symbolic component.  And the hundreds of post-9/11 detainees from the Middle East, who have been cleared of any possible involvement in terrorism but are nevertheless are being held for minor visa violations, are the most recent example of individuals who are being detained as part of a symbolic “crackdown.” 

 

Sweeping lots more aliens into INS custody is a very visible way to convince the general public that something is being done about a particular problem.  But these episodic detention sweeps and the broad criminal detention mandates are of questionable utility, and are fundamentally unfair. We should not, in other words, deprive people of liberty primarily to “send a message.”   

 

B.  Recent Rules Expanding INS Authority and Contracting IJ Review over Detention Decisions

 

Consistent with the due process requirement for a neutral adjudicator to decide custody status, immigration judge jurisdiction should expand to three contexts where IJ’s do not at present make custody determinations:  (1) detained asylum seekers in the expedited removal process who have passed the “credible fear” screen and are awaiting a removal hearing; (2) returning lawful permanent residents who are considered “applicants for admission;’” and (3) post-order detainees who have not been removed within the statutory 90-day removal period.  Instead, the Department of Justice has recently acted to contract IJ authority, and to insulate INS custody decisions from any time limitations or further review, via two interim rules.  These regulations conflict with the procedures that Congress enacted in the USA-PATRIOT Act and raise serious constitutional concerns. 

 

First, an interim rule on custody procedures issued September 17, 2001 extends the time for the INS to make charging and custody determinations to 48 hours.  “[I]n the event of an emergency or other extraordinary circumstance,” however, the rule specifies that such determinations must be made “within an additional reasonable period of time.” 66 Fed. Reg. 48334, 48335.  The interim rule provides no guidance on how to interpret these phrases, but information from representatives of some detainees suggests that at present detainees routinely are held for weeks without charge.  This practice conflicts with an intervening Act of Congress.  The USA-PATRIOT Act established certification by the Attorney General as the only exception to established custody procedures, and limited the detention of a certified alien to a maximum of seven days before charges are initiated.  The regulations must be interpreted in light of the limitations embodied in this new statute. 

 

Second, an interim rule issued on October 31, 2001 grants the INS authority to stay an IJ’s release decision in any case in which a district director ordered the alien held without bond or set a bond of $10,000 or more.  66 Fed. Reg. 54909 (Oct. 31, 2001).  This rule permits the INS unilaterally to retain someone in custody throughout the entire administrative process in any case where the original bond reaches the threshold amount (a factor that is within the exclusive control of INS), regardless of the charges lodged.  As a practical matter, the automatic stay provision bypasses the important (and constitutionally required) step of an IJ bond determination.  In many cases where the new rule might be invoked, hearings on custody status are now simply continued-without ever having the judge reach a decision-because all participants know that the INS can simply nullify an outcome that it does not like.  The interim rule conflicts with the limited authority and strict time limits provided in USA-PATRIOT.  Both regulations also raise significant constitutional concerns pursuant to the due process precedent discussed above.

 

*****

 

The central message that I hope to convey today is that it is expensive, and it is inhumane, to assume that detention is the only tool in the INS enforcement arsenal that can be used to “restore credibility” to the immigration system.  The experience of pretrial supervision in the criminal context, and the Vera Institute Appearance Assistance Program, show that supervised release is an effective alternative.  To date, the INS has failed to develop the capacity to do anything but detain in order to keep tabs on people in the midst of proceedings and make sure they comply with the process.  This is a central failing of the immigration enforcement system. 

 

Congress has recently appropriated money to fund alternatives to INS detention, which is a step in the right direction.  Repeal of the detention mandates-so that IJs again can make individualized determinations of whether a criminal offender presents a risk of flight or danger to others, or has a viable claim for relief that makes him a good candidate for release-is the next step.  And IJ jurisdiction needs to expand, not contract, to ensure that all individuals deprived of the liberty are entitled to a bond hearing before a neutral adjudicator, as due process requires.   

 

I appreciate the opportunity to testify before you today, and would be happy to answer any questions. 


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