Identifying Limits to Immigration Detention Transfers and Venue.

• Author: Pon, Adrienne

Abstract. The government claims that it may transfer immigration detainees to any detention facility across the country. The scale of the current transfer practice is staggering--more than half of all detainees experience at least one transfer, and detainees are often transferred to the Fifth or Eleventh Circuits. This choice in detention location, in turn, essentially determines where venue rests for immigration court proceedings and limits where detainees may access Article III courts. In other words, the government has broad discretion to choose where to detain an immigrant and which courts will hear the immigrant's case. Despite the immense impact on immigrant communities, there is a dearth of legal scholarship examining this practice.

This Note aims to fill that gap. It first thoroughly analyzes immigration detention transfers and venue--the legal framework for this arrangement, the scope of the transfer practice, the government's justifications, and how these justifications are mostly exaggerated and ultimately outweighed by the hardships inflicted on detainees. This Note then explores where to look for possible protections. Although there is a trend in immigration law scholarship over the last two decades to argue for importing criminal law protections into the immigration system, this Note argues that the relevant criminal analog here is insufficient. Instead, the civil context offers a better possible constraint on the government's discretion: There might be an unrealized Fifth Amendment due process limit to whether a court can exercise personal jurisdiction over an immigration detainee if the particular forum is exceedingly unfair and burdensome.

Introduction I. Immigration Detention Transfers and Venue A. Legal Framework B. Scope of the Current Transfer Practice C. The Government's Justifications D. Hardships for Detainees 1. Changes in substantive law 2. Interference with the right to counsel 3. Reduced access to evidence 4. Psychological and emotional burden II. Comparison to the Criminal Context A. Constitutional Venue and Vicinage Constraints B. The Difficulty Applying These Constraints in the Immigration Context III. Comparison to the Civil Context A. Personal Jurisdiction in Federal Question Cases Generally B. Potential Fifth Amendment Due Process Constraints on Personal Jurisdiction 1. Separate reasonableness inquiry 2. Limits when statutory transfer and venue safeguards are inadequate 3. Limits when the forum poses "extreme inconvenience" C. The Potential of Applying These Constraints in the Immigration Context Conclusion Introduction

Ravi Ragbir has lived in the United States for over two decades, is a lawful permanent resident, has a wife and daughter who are both American citizens, and is a prominent interfaith community leader on immigrants' rights issues. (1) He has perfectly complied with the conditions of his supervised release under stays of removal for nearly a decade. (2) But on January 11, 2018, Ragbir went in for a routine immigration check-in near where he resided in New York City, only to be abruptly arrested, handcuffed, and forced onto a plane to a detention facility in Miami, Florida. (3) For hours, his family, friends, and attorneys did not know where he was sent. (4) The Trump Administration had decided to enforce an old removal order against Ragbir and provided no reason for its choice to detain him 1,200 miles away--where it would be exceedingly difficult for his attorneys to represent him and his family to visit, and where the law of the Eleventh Circuit would now apply to his case. (5)

Such confusion and panic are unfortunately commonplace in the U.S. immigration system. The government currently exercises almost unfettered discretion in choosing where to detain immigrants, often inexplicably transferring them far from their communities and counsel. (6) The location of detention, in turn, essentially determines the proper venue for immigration court proceedings and has important consequences for where detainees may access Article III courts. (7) In other words, for immigration detainees, the government typically controls both their detention location and the courts they will face. Over half of all immigration detainees experience at least one transfer, and one-fourth of all transfers cross state lines, (8) yet there is a dearth of scholarship examining this issue. (9)

This Note aims to fill that gap. Part I provides a thorough analysis of the mechanics of immigration detention transfers and venue. The legal framework that supports this system emerged over time through a combination of various statutory, regulatory, and policy changes. The end result of these decisions is that the number of detainees experiencing transfers is increasing--as is the number experiencing multiple transfers, and the number experiencing transfers to the Fifth and Eleventh Circuits. The government claims that these transfers are necessary to manage a massive detention system with limited bed space. But these justifications are exaggerated and ultimately outweighed by the hardships inflicted on detainees--including changing the applicable substantive law by crossing jurisdictions, interfering with access to counsel and the attorney-client relationship, creating barriers to gathering evidence, and causing severe psychological and emotional harm.

This Note then explores where to look for possible protections. There are two distinct issues here--where detainees may be physically transferred and where venue rests--and there are many angles from which to approach possible legal challenges. This Note examines constraints on the government's choice of venue in other contexts, as a starting place and in the hope that such protections could limit where the government moves detainees.

Part II turns to the criminal context. This is the obvious starting point given the overwhelming trend in immigration law scholarship over the last two decades to focus on the convergence of the criminal justice and immigration systems. (10) However, the relevant criminal law analog here proves to be insufficient. At first glance, it seems promising that the U.S. Constitution itself limits venue to the judicial district where the crime was committed. (11) But this restraint on the government's choice of forum has collapsed under the weight of modern crimes and--even if a sufficient protection for criminal defendants--would be difficult to translate into the immigration context. The inapplicability of criminal protections reinforces a growing body of scholarship critiquing this trend of borrowing from criminal law. (12)

Part III turns to the civil context and finds the comparison to be more helpful. There might be an unrealized Fifth Amendment due process constraint on immigration venue from personal jurisdiction doctrine. After all, personal jurisdiction governs where an individual may be haled into court. Most of the doctrine was developed under the Due Process Clause of the Fourteenth Amendment in the context of state courts and federal courts hearing cases based on diversity jurisdiction. This doctrine generally follows a two-step test to determine whether: (l) the defendant has "minimum contacts" with the forum and (2) the forum is reasonable. (13) Personal jurisdiction doctrine for cases arising under federal law is less developed, but it is clear that in a subset of cases--including immigration--it is generally only required that an individual have "minimum contacts" with the United States as a sovereign to authorize any federal court to exercise personal jurisdiction. (14)

However, even when an individual has enough contacts with the United States to satisfy this "national contacts" standard, the Due Process Clause of the Fifth Amendment might further constrain choice of forum when a forum is unduly burdensome for the individual. The possibility of this constraint is certainly an open question as the U.S. Supreme Court has expressly declined to address this issue on multiple occasions. (15) Many lower courts and scholars believe that Fifth Amendment due process fairness limits indeed exist, with their views ranging from mandating a full independent fairness inquiry to merely recognizing that national contacts might not be enough in some circumstances--including if there are no liberal statutory transfer and venue safeguards, or if the forum poses an "extreme inconvenience" that would severely disadvantage the defendant. (16)

This Note applies the possible Fifth Amendment due process constraint in personal jurisdiction doctrine to the immigration context for the first time. The issue of immigration transfers and venue presents a compelling circumstance in which courts might be able to find such a limit on the government's choice of forum. This is because the immigration system is a rare instance in which there are no adequate statutory venue or transfer safeguards. (17) And the inconvenience is often so extreme that transferred detainees frequently face insurmountable obstacles in presenting their cases. Thus, unless there is meaningful legislative immigration transfer and venue reform, there will be instances in which the unreasonableness of a particular forum could prevent the court from exercising personal jurisdiction over an immigrant detainee. This Note also briefly explores what the due process test for this approach might entail and other considerations in utilizing this possible protection.

1. Immigration Detention Transfers and Venue

   The U.S. government currently operates a massive system of far and frequent transfers of immigration detainees. This choice of detention location, in turn, usually determines where venue rests for immigration proceedings. Despite the fact that the government exercises tremendous power to control both an immigrant's detention location and which courts he will face, this phenomenon has largely gone unnoticed outside circles of immigrants' rights and human rights...