Sarah Gryll, Immigration Detention Reform: No Band-aid Desired

• Jurisdiction: United States,Federal
• Publication year: 2011
• Citation: Vol. 60 No. 5

IMMIGRATION DETENTION REFORM: NO BAND-AID DESIRED

ABSTRACT

The United States is a land of immigrants. Yet the United States has adopted laws and policies to prevent mass migrations to this country. Despite these efforts, millions of illegal immigrants currently reside in the United States and more enter every year. An intense public debate about how to treat such immigrants has been at the forefront of the political forum for decades. In recent years, a new vigor for reform has fueled the debate. The Obama Administration vowed to enact comprehensive immigration reform and, in its first year, unveiled a number of reforms meant to address the deteriorating conditions of the immigration detention system.

In a political climate ripe for immigration reform, this Comment proposes a more comprehensive approach to immigration detention reform. Current government efforts focus solely on the conditions of detention. The reforms aim to improve medical care, increase direct federal oversight of the detention centers, and transition the system from one built and currently operating as a criminal system to a civil system that fits the needs of the detainee population. While these are all important and necessary steps, they are mere band-aids that fail to address the source of the problem—why the United States is detaining a greater percentage of immigrants every year. This Comment proposes a combined statutory and regulatory scheme that will address the root causes of the percentage increase in detainees and simultaneously ease the pressures on the detention system in two ways: (1) reducing the categories of individuals subject to mandatory detention and (2) requiring more individualized determinations for aliens that are neither flight risks nor dangers to the community. These measures will ultimately decrease the number of detainees in the detention system.

INTRODUCTION 1213

1. THE CURRENT STATE OF AFFAIRS 1217

   1. Why Are There More Detainees? Explanations for the Rise in Detainees as a Percentage of Those Apprehended 1218

      1. A Look at the Numbers 1219

      2. Why Is ICE Detaining More Aliens? And Why Now? 1224

         1. Policy Choices: The Shift Toward Detention as the Primary Means of Enforcement 1224

         2. Congressional Action: The Rise in Mandatory Detentions 1226

         3. Agency Action: The Rise in Discretionary Detentions 1231

   2. Recent Reforms 1234

      1. Proposed Reforms 1235

      2. Inadequacy of Proposed Reforms 1238

2. ISSUES INHERENT IN THE IMMIGRATION DETENTION SYSTEM AND THE NEED FOR A MORE COMPREHENSIVE SOLUTION RESULTING IN

   FEWER DETAINEES 1239

   1. Unfairness in Detention Decisions 1239

      1. The Mandatory Detention Provisions Should Be Narrowed 1240

      2. Discretionary Detention Determinations Are Arbitrary

         and Neglect Individualized Consideration 1240

   2. The Higher Costs of Detention 1243

   3. The Inadequacy of the Current System: The Pressures of a Larger Detention Population on an Ill-Equipped Immigration Detention System 1246

3. A PROPOSED STATUTORY AND REGULATORY SCHEME TO LOWER

   THE NUMBER OF DETAINEES 1248

   1. Congressional Action 1251

   2. Agency Action 1253

CONCLUSION 1255

INTRODUCTION

[M]eaningful reform of the system must focus not only on the conditions under which immigrants are being detained, but on why they are being detained in the first place—often for prolonged periods of time—when other forms of supervised release would be sufficient to address the government’s concerns, as well as the need

for basic due process.1

Errol Barrington Scarlett has lived in the United States for over thirty years2 and is a long-time, lawful permanent resident.3 Originally from Jamaica, he has four children and numerous siblings, all of whom are U.S. citizens.4 But, for over five and a half years, Mr. Scarlett was locked behind bars in multiple federal detention centers, pending removal proceedings.5 The United States subjected him to mandatory detention because of a nonviolent, decade-old drug possession offense for which Mr. Scarlett had already served his sentence.6 Mr. Scarlett’s familial ties, combined with his long-time, lawful permanent resident status, weigh strongly in favor of cancellation of removal, a form of relief for aliens in removal proceedings.7 Yet, as of July 2009,8 Mr. Scarlett had not even been afforded an individualized bond hearing.9

1. Press Release, Am. Civil Liberties Union, DHS Plan to Improve Immigration Detention an Encouraging Step (Oct. 6, 2009) [hereinafter ACLU DHS Plan Press Release], available at http://www.aclu. org/immigrants-rights_prisoners-rights/dhs-plan-improve-immigration-detention-encouraging-step.

2. Scarlett v. U.S. Dep’t of Homeland Sec. Bureau of Immigration & Customs Enforcement, 632 F. Supp.

   2d 214, 216 (W.D.N.Y. 2009).

3. Press Release, Am. Civil Liberties Union, After Being Detained Five Years Without Bond Hearing, Immigrant to Get Day in Court (July 13, 2009) [hereinafter ACLU Day in Court Press Release], available at http://www.aclu.org/immigrants-rights/after-being-detained-five-years-without-bond-hearing-immigrant-get- day-court.

4. Id.

5. Scarlett, 632 F. Supp. 2d at 217. Mr. Scarlett was detained for over two and a half years in the Federal Detention Center in Oakdale, Louisiana. Id. At the time of the district court opinion, Mr. Scarlett was being

   detained at the Buffalo Federal Detention Facility. Id.

6. ACLU Day in Court Press Release, supra note 3. Mr. Scarlett pleaded guilty to criminal possession of a controlled substance, second degree, on January 29, 1999. Scarlett, 632 F. Supp. 2d at 216. The court sentenced him to a term of five years to life, and he was released from prison on May 28, 2002. Id. It was not until January 22, 2003, almost eight months after he had been released from custody, that the government

   commenced removal proceedings against Mr. Scarlett. Id. The Department of Homeland Security (DHS) and

   U.S. Immigration and Customs Enforcement (ICE) have held Mr. Scarlett in custody since November 25, 2003. Id. at 217. ICE was formed in 2003 as part of the U.S. Department of Homeland Security. ICE Overview, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, http://www.ice.gov/about/index.htm (last visited May 24, 2011). ICE is responsible for enforcing the United States’ immigration and customs laws. Id.

7. 8 U.S.C. § 1229b (2006) (amended 2008). Cancellation of removal falls into two categories: (1)

   cancellation of removal for permanent residents and (2) cancellation of removal and adjustment of status for nonpermanent residents. Id. For certain permanent residents, the Attorney General has the power to cancel removal of an alien who is inadmissible or deportable if the alien: “(1) has been an alien lawfully admitted for

   That same month, a district court in New York ordered the government finally to provide Mr. Scarlett with such a hearing.10 The court held that the government’s authorization to detain Mr. Scarlett was not permitted by 8

   U.S.C. §1226(c)11 because Mr. Scarlett was released from incarceration nearly eighteen months prior to his immigration detention.12 Rather, the

   government’s detention of Mr. Scarlett was authorized by §1226(a),13 which

   affords Mr. Scarlett the opportunity to an individualized bond hearing before an immigration judge.14 The court concluded that Mr. Scarlett’s “detention has far exceeded the parameters of the ‘brief’ or ‘limited’ period of time which the United States Supreme Court deemed constitutional.”15 At an individualized bond hearing, the government would need to demonstrate that Mr. Scarlett either poses sufficient danger to the community or is a flight risk to warrant his continued detention.16

   
   

   Mr. Scarlett’s story is just one of thousands highlighting the strong need for immigration detention reform. Despite the government’s failure to provide evidence that Mr. Scarlett would be a danger to the community or a flight risk if released on bond, current federal law mandates Mr. Scarlett’s detention

   
   

   permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony.” Id.

   § 1229b(a). Mr. Scarlett qualifies for cancellation of removal under the first two prongs, but the court questioned whether his controlled substance conviction constituted an aggravated felony offense. See Scarlett, 632 F. Supp. 2d at 223 (stating that if “it is determined that a conviction for criminal possession of a controlled substance, second degree, does not constitute an aggravated felony,” then Mr. Scarlett’s case “will be remanded to the immigration court to determine whether he should be afforded cancellation of removal”).

8. There are no known new developments as of May 2011 in Mr. Scarlett’s case.

9. Scarlett, 632 F. Supp. 2d at 216, 219–20; see also ACLU Day in Court Press Release, supra note 3 (“During his lengthy detention, the government never gave him a hearing but only a string of ‘rubberstamp’ custody reviews denying his release.”).

10. Scarlett, 632 F. Supp. 2d at 219–20, 223.

11. Id. at 219. This section requires the Attorney General to take into custody any alien who is deportable on the basis of committing certain offenses or has been sentenced to a term of imprisonment for at least one year. 8 U.S.C. § 1226(c)(1). The language states that “[t]he Attorney General shall take into custody any alien . . . when the alien is released.” Id. (emphasis added). A number of district courts have held that, in light of this language, the mandatory detention statute does not apply to aliens “when the alien was not taken into immigration custody at the time of his release from incarceration on the underlying criminal charges.”

    Scarlett, 632 F. Supp. 2d at 219; see also Bromfield v. Clark, No. C06-757RSM, 2007 WL 527511, at *3

    (W.D. Wash. Feb. 14, 2007) (collecting cases).

12. Scarlett, 632 F. Supp. 2d at 219.

13. This provision authorizes the arrest and detention of an alien pending a decision on whether the alien is to be removed from the United States. 8 U.S.C. § 1226(a).

14. Scarlett, 632 F. Supp. 2d at 219–20.

15. Id. at 223.

16. ACLU Day in Court Press Release, supra note 3. For an explanation of...