Indefinite detention of immigrant information: federal and state overreaching in the interpretation of 8 C.F.R.

• Author: Martinez, Grant
• Position: Section

INTRODUCTION

Hiu Lui Ng was seventeen when he lawfully entered the United States with his parents and sister in 1992. (1) He filed for asylum and then for adjustment of his status, but never received proper notice of various required court appearances. (2) Consequently, immigration authorities arrested Mr. Ng in July 2007. (3) In April 2008, he began "complaining of excruciating back pain" while in immigration detention. (4) After his family and attorneys repeatedly requested emergency medical treatment, Mr. Ng was accused of faking his injuries and was given some Motrin and a cane. (5) Not until August 2008, after a federal judge ordered that Mr. Ng receive proper medical treatment, did doctors discover that he had terminal liver cancer (which had gone undiagnosed and untreated) as well as a fractured spine and severe bruises allegedly caused by guards' abuse. (6) Mr. Ng died five days later. (7) He had committed no crime, but was treated worse than most criminals.

Unfortunately, Mr. Ng's treatment is not unique. At least 113 people have died in Immigration and Customs Enforcement (ICE) custody since the agency was created in 2003. (8) "Deficient medical care ... has caused unnecessary suffering for many thousands of people in immigration detention." (9) Many have suffered other forms of harsh punishment and abuse. (10)

The failure to correct these abuses stems partially from the public's inability to discover them. Recently, a Department of Homeland Security report called for increased accountability and transparency with regard to immigration detention. (11) Yet in January 2010, the New York Times revealed that although thousands of pages of government documents detail these types of incidents, ICE officials have worked behind the scenes to stymie outside inquiry and cover up evidence of mistreatment. (12) The press and immigrants' rights groups have sought to combat this inhumane treatment by reporting on abuses and filing lawsuits. (13) Records obtained through state and federal open government laws play an essential role in their efforts. (14)

Indeed, following Mr. Ng's death, the New York Times ran a series of articles about the tragic death, (15) and the ACLU began a preliminary investigation into a potential lawsuit on Mrs. Ng's behalf. (16) However, the state jail refused to turn over records relating to Ng, citing a 2002 regulation: 8 C.F.R. [section] 236.6.17 The regulation, promulgated by ICE's predecessor, the Immigration and Naturalization Service (INS), essentially forbids state and local jails from releasing information regarding federal immigration detainees being housed in their facilities and makes clear that it supersedes state law to the contrary. (18) The state jail claimed that the regulation preempted state law to prohibit the release of any information about any federal detainee who had ever been held in state jails at any time. (19)

The state jail's broad interpretation of 8 C.F.R. [section] 236.6 has reared its head elsewhere, as other states and the federal government have sought to prevent the release of information about former detainees. In August 2010, the U.S. Department of Justice argued in an appeal to the Supreme Court of Connecticut that the regulation prohibits the release of all immigration detainee information by states for all time. (20) The Connecticut Department of Correction has independently adopted the same position. (21) In Texas, the state Attorney General has approved, under this regulation, the withholding of information about immigration detainees who have died in state jails. (22) Other states may also be invoking the regulation to withhold information about immigration detainees. (23)

The broad interpretation of this regulation prevents the disclosure of abuses in immigration detention and thus hinders the public's ability to pressure the government to correct them. Using basic principles of construction, this Comment argues that this broad interpretation is unwarranted. Properly interpreted, the regulation applies only to information about current detainees.

This Comment will proceed in three Parts. First, it will provide a brief overview of the historical circumstances that led to the promulgation of this regulation. Second, it will argue that several different interpretive tools all point toward a narrow reading of the regulation that covers only current detainees, not former detainees. Third, it will show that the interpretations of the regulation offered by the federal government are not entitled to deference by courts.

1. PROMULGATION OF 8 C.F.R. [section] 236.6 IN THE AFTERMATH OF SEPTEMBER 11

   In the weeks and months following the attacks of September 11, 2001, the U.S. government questioned 762 immigration detainees from the New York City area, many of whom were held in county detention facilities in New Jersey. (24) The INS initially ordered the local jails not to disclose any information regarding the detainees. (25)

   Because the detainees were being held in secrecy, it was difficult to determine how many lacked legal representation, which the ACLU of New Jersey sought to provide. (26) To obtain access to the names of the detainees, the ACLU sued, citing state freedom of information laws and a century-old state jailkeeper law. (27) On April 12, 2002, the trial court ruled in favor of the ACLU and ordered release of the information. (28)

   Five days later, the United States and the counties appealed; (29) the same day, the INS promulgated an emergency regulation, now codified at 8 C.F.R. 236.6. (30) Thus, the INS effectively overrode the New Jersey trial court by issuing a regulation preempting state law; in issuing the new rule, it made this motive clear. (31)

   Although the regulation was initially promulgated to prevent the release of information about current detainees, several states and the federal government have since advocated a broad interpretation that covers information regarding all immigration detainees ever housed by a state entity on behalf of the federal government. The next two Parts attempt to show that the regulation should be limited to its original, narrow interpretation.

2. CONSTRUING 8 C.F.R. [section] 236.6 NARROWLY

   Several tools of construction...