K. Issues of Importance to Non-citizens and Immigration Detainees

LibraryThe Jailhouse Lawyer's Handbook (CCR) (2021 Ed.)

K. Issues of Importance to Non-Citizens and Immigration Detainees

Since Congress changed the immigration laws in 1996, more and more non-citizens are being held in detention centers or jails during their immigration cases, or while they are waiting for deportation, even though they are not convicted criminals or even pretrial detainees. When a person is held in custody by the Immigration and Customs Enforcement agency (ICE) they are called "immigration detainees" rather than prisoners.

NOTE FOR NON-CITIZENS SERVING PRISON SENTENCES:

One important thing to be aware of as a non-citizen is that if you have been convicted of certain qualifying crimes (as defined by federal immigration law), you may be deportable after you have served your sentence. Regardless of your immigration status, non-citizens can be removed for criminal convictions. This area of law is complicated, and something you should discuss with an attorney who specializes in immigration law.

If you are ordered removed while serving your criminal sentence or if you are fighting your immigration case while in prison, you could be detained after you have finished serving your sentence and held for an uncertain period of time before you are deported from the country or your immigration case is decided.

As an immigration detainee, you have most of the same constitutional rights to decent treatment as citizens do. Like pretrial detainees, immigration detainees can challenge the conditions of their confinement under the Due Process Clause of the Fifth Amendment, which protects any person in custody from conditions that amount to punishment. See Wong Wing v. United States, 163 U.S. 228 (1896).

Immigration detainees in federal facilities may have trouble bringing constitutional claims for money damages because of the changes in Bivens actions describe in Chapter 2, Section D. Most of the cases described below involve immigration detainees held in state or local facilities, or suing to change their conditions rather than suing to get money.

The Supreme Court has not yet determined what due process standard should be used to analyze conditions and abuse challenges by people in immigration detention. Some courts have acknowledged that it is not yet clear how immigration detainees' claims should be treated. In Preval v. Reno, 203 F.3d 821 (4th Cir. 2000), the Fourth Circuit reversed a lower court ruling on a case brought by immigration detainees because the district court had dismissed their claims using the standard for pretrial detainees without giving the detainees the opportunity to argue about the correct standard.

That said, most courts have held that such challenges should be analyzed under the Bell standard for pretrial detainees, discussed above. For an example of this point of view, read E.D. v. Sharkey,...

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