Detainee Transfers and Immigration Judges: Ice Forum-shopping Tactics in Removal Proceedings

• Publication year: 2018

Detainee Transfers and Immigration Judges: ICE Forum-Shopping Tactics in Removal Proceedings

Roger Grantham
University of Georgia School of Law, roger.grantham@uga.edu

DETAINEE TRANSFERS AND IMMIGRATION JUDGES: ICE FORUM-SHOPPING TACTICS IN REMOVAL PROCEEDINGS

Roger C. Grantham, Jr.^*

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U.S. immigration policy and ICE tactics have been greatly scrutinized over the past year. While many criticisms focus on border policy and the conditions of detention, scholars have also raised concerns over ICE's unfettered discretion to transfer detainees to different detention centers. Not only may ICE transfer detainees anywhere in the country, ICE has gradually expanded this practice. Now, on average, every detainee is transferred at least once each year. ICE, however, is not the sole point of criticism for immigration advocates. Recently, Immigration Judges' decisions have been scrutinized for their lack of consistency. Wide variations in IJ decision making indicates that the judge assigned to a case heavily influences the likelihood of a favorable outcome to ICE. The intersection of these two distinct problems—immigration detainee transfers and inconsistent IJ decisions—effectively allows ICE to forum shop by transferring detainees to detention centers with IJs who are likely to issue rulings favorable to ICE. This amounts to a crisis of justice, as ICE may transform facially neutral proceedings into judicial rubber stamping for the case outcomes ICE desires.

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Table of Contents

I. Introduction...................................................................283

II. The Immigration Detention Framework....................286

A. STATUTORY AUTHORITIES FOR DETENTION....................286

1. Arriving Aliens...................................................286
2. Noncitizens Subject to Removal.........................287
3. Noncitizens Ordered Removed...........................288
4. Statutory Overview............................................289

B. PREVALENCE OF DETAINEE TRANSFERS..........................290
C. OUTCOME-DETERMINATIVE CONDITIONS OF DETENTION. 292

III. Immigration Judges and Adjudicatory Inconsistency ...........................................................................................294

A. THE SCANT AUTHORITIES GOVERNING IMMIGRATION JUDGES ..................................................................................... 295
B. THE WIDE VARIATION IN IMMIGRATION CASE OUTCOMES.296
C. NON-MERITORIOUS FACTORS INFLUENCING IMMIGRATION JUDGES' DECISIONS......................................................298

IV. ICE Judge-Shopping Tactics.........................................300

A. POTENTIAL FOR ICE TO ABUSE THE DETENTION FRAMEWORK ..................................................................................... 301
B. POSSIBLE EVIDENCE OF ICE FORUM-SHOPPING TACTICS . 302
C. OFFENDING NOTIONS OF JUSTICE...................................304

V. Conclusion......................................................................306

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I. Introduction

Ruben Lima-Diaz has continuously lived in the United States for twenty-one years since he entered the country from his native Mexico when he was three years old.¹ On more than one occasion during those two decades, Lima-Diaz had run-ins with the law.² After Lima-Diaz was first arrested for possession of marijuana in 2012, he was detained pursuant to removal proceedings by Immigration Customs and Enforcement ("ICE").³ In less than three weeks, ICE released him after deciding to close his case.⁴ This would not be Lima-Diaz's last encounter with ICE.

Four years later, Lima-Diaz was arrested for a DUI and ICE reinstated removal proceedings against him.⁵ He was detained at Stewart Detention Center—one of four ICE detention facilities in Georgia and the second largest facility in the country⁶ —in the small, rural town of Lumpkin, Georgia.⁷ After being detained for two months and managing to secure counsel, an Immigration Judge ("IJ") released Lima-Diaz on a $2,000 bond on Christmas Eve of 2016.⁸ ICE did not appeal this grant of bond to the Board of Immigration Appeals.⁹

Here is where the story gets more interesting. After Lima-Diaz had been free on bond for over four months, ICE agents rearrested and detained him during a routine check-in with his probation

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officer.¹⁰ Rather than returning Lima-Diaz to Stewart Detention Center where he was previously detained, ICE agents moved him to the Irwin County Detention Center in Ocilla, Georgia.¹¹ There, ICE incarcerated him for over two months without a bond hearing until he appeared before a new IJ on July 11, 2017.¹² This time, the IJ set a $25,000 bond, even though Lima-Diaz had neither been arrested for another crime nor had he violated the terms of his previous bond.¹³ When Lima-Diaz's counsel protested the high amount, the IJ crossed out the $25,000 amount by hand and denied bond entirely.¹⁴ Lima-Diaz's habeas petition was dismissed on January 18, 2018, and, as of the time of writing, he remains in detention at Irwin Detention Center.¹⁵

Lima-Diaz's story is common. Like the 34,376 aliens who remain in ICE custody on an average day, he was subject to immigration detention in an isolated, rural area of the United States, awaiting potential deportation.¹⁶ He was also one of the 374,059 ICE detainees who are transferred to different detention facilities each year.¹⁷ He may yet become one of the 240,255 aliens removed from the interior United States by ICE each year.¹⁸

Each of these common components of immigration detention—transfers of detainees,¹⁹ denials of bond,²⁰ and prolonged detention

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periods²¹ —raises serious concerns about the fundamental justice of the immigration detention system. Simultaneously occurring, these concerns amount to a crisis of justice. This Note explains how the tremendous discretion afforded to IJs to make decisions in immigration cases interacts with the ample discretion that immigration enforcers possess to transfer detainees. IJs are afforded broad discretion in deciding the availability of pretrial release and the final outcome of detainees' cases.²² Meanwhile, ICE has the authority to transfer detainees to any detention facility in the country, where local IJs are appointed to preside over bond and merits hearings.²³ Thus, ICE can effectively choose which IJ will make a critical case determination. Because IJ decision making is inconsistent, this choice of IJ is almost outcome-determinative, allowing ICE to forum shop to secure favorable rulings.

This Note argues that ICE's unconstrained ability to transfer immigration detainees to any detention center allows the agency to engage in judge shopping to secure favorable rulings. Part II outlines the statutes presently governing immigration detention, explains how ICE transfers detainees, and discusses the problematic and outcome-influencing conditions of detention. Part III explains the statutory authority of IJs, the factors that influence their decisions, and the tendencies in the outcomes of their decisions. Part IV explains how ICE can judge-shop by transferring detainees, provides possible examples of such judge-shopping, and explains why judge shopping offends critical notions of fairness that are central to both immigration policy and general adjudicatory fairness. Part V concludes that there are few options to foreclose this possibility without an overhaul of the immigration detention framework.

II. The Immigration Detention Framework

Immigration detention is governed by a complex statutory scheme and implemented by multiple federal agencies. This section

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first outlines the relevant laws and policies regarding detention and detainee transfers. It then turns to the problematic and potentially outcome-influencing conditions that prevail in immigration detention facilities.

A. STATUTORY AUTHORITIES FOR DETENTION

Three classes of aliens are subject to immigration detention: (1) arriving aliens, (2) noncitizens subject to possible removal, and (3) noncitizens ordered removed but awaiting deportation.²⁴ The detention of each class is governed by separate statutory provisions interpreted by the agency and courts.²⁵ I. Arriving Aliens 8 U.S.C. § 1225 provides inspection and detention standards for all aliens "present in the United States who [have] not been admitted or who arrive[] in the United States."²⁶ The term "arriving aliens" is a misnomer, because this class includes not only aliens who present themselves for admission "at a designated port of arrival," but also aliens who are already present in the country, provided that they meet the other requirements of the statute.²⁷ All arriving aliens are subject to inspection to determine whether they are admissible to the United States.²⁸

1. Arriving Aliens.

Asylum seekers constitute a substantial portion of the arriving aliens subject to §1225's provisions.²⁹ If an arriving alien applies for asylum or claims a fear of persecution if not admitted, then an asylum officer must assess the alien's application and determine whether the alien's fear of persecution is credible.³⁰ These aliens are

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subject to mandatory detention pending such a determination.³¹ If the asylum officer denies the application or finds the fear of persecution not credible, then the alien is subject to further detention pending removal.³²

2. Noncitizens Subject to Removal.

Noncitizens are subject to removal based on one of two provisions. First, under §1226(a), the united states Attorney General may generally issue warrants for any noncitizen to determine whether that noncitizen is subject to removal.³³ while noncitizens may be detained until an immigration court determines that they should be removed, their detention is discretionary because an ij may release them on bond or conditional parole.³⁴ However, the Attorney General may revoke any bond or other form of release at any time.³⁵

Second, certain criminal noncitizen aliens are subject...