Pulling teeth: The state of mandatory immigration detention

Harvard Civil Rights-Civil Liberties Law Review

Volumn 45, Issue 2, 2010, Pages 601-634

  Heeren, Geoffrey ^a  

^a AIDS Foundation of Chicago   (United States)

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EID: 77957686473     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (267)

1. See 8 U.S.C. § 1226(c) (2006) (requiring certain categories of immigrants to be detained during removal proceedings). Sixty-six percent of current detainees are considered subject to mandatory detention. DORA SCHRIRO, DEPV OF HOMELAND SECURITY, IMMIGRATION AND CUSTOMS ENFORCEMENT, IMMIGRATION DETENTION, OVERVIEW AND RECOMMENDATIONS 6 (Oct. 6, 2009), available at http://www.ice.gov/doclib/091005-ice-detention-report-final.pdf.
2. See Kansas v. Hendricks, 521 U.S. 346, 368 (1997);
3. Foucha v. Louisiana, 504 U.S. 71, 84 (1992).
4. Demote v. Kim, 538 U.S. 510, 530 (2003).
5. Id. at 531.
6. In 2007, DHS detained approximately 311,000 individuals. DHS ANNUAL REPORT, IM-MIGRATION ENFORCEMENT ACTIONS: 2007 (2008), available at http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement-ar-07. pdf.
7. DHS detains more than 30,000 immigrants each day. U.S. Gov,T ACCOUNTABILITY OFFICE, ALIEN DETENTION STANDARDS: OBSERVATIONS ON THE ADHERENCE TO ICE'S MEDICAL STANDARDS IN DETENTION FACILITIES 1 (2008), available at http://www.gao.gov/new.items/d08869t.pdf.
8. According to the Schriro Report, "On average, an alien is detained thirty days. The length of detention however, varies appreciably between those pursuing voluntary removals and those seeking relief. As much as 25% of the detained population is released within one day of admission, 38% within a week, 71% in less than a month, and 95% within four months. Less than 1% of all admissions, about 2,100 aliens, are detained for ayear or more." SCHRIRO, supra note 1, at 6. Another recent report by the Migration Policy Institute ("MPI") provides a different picture. The MPI report analyzed data concerning 18,690 persons in immigration detention pursuant to removal proceedings on a single day in January 2009. According to its analysis, the average length of detention was eighty-one days; 74% of the detainees had been detained for less man ninety days; 13% for between ninety days and six months; 10% for between six months and one year, and 3% for more than one year.
9. DONALD KERWIN &SERENA YI-YINO LIN, MIGRATION POL'Y INST., IMMIGRANT DETENTION: CAN ICE MEET ITS LEGAL IMPERATIVES AND CASE MANAGEMENT RESPONSIBILITIES 16 (2009), http://www.migrationpolicy.org/pubs/ detentionreportSept1009.pdf. The chief discrepancy between the Schriro data and the MPI findings probably relates to MPI's focus on immigrants in removal proceedings. Schriro's data, in contrast, appears to have encompassed individuals who were not entitled to removal proceedings or who voluntarily stipulated to their removal.
10. See Mark Brown, Immigrant Still in Jail, Even though Judge Let Him Go Free, Cm. SUN TIMES, Mar. 20, 2007, at 2.
11. See Hussain v. Mukasey, 518 F.3d 534 (7th Cir. 2008).
12. According to data obtained by the ACLU from DHS throughout a Freedom of Information Act request, from November 14, 2001 to September 30, 2009, DHS terminated charges against or awarded waivers of deportation to 5829 persons who were held in detention for six months or more (note that this number does not include individuals who, like Hussain, won CAT relief). Of these individuals, 1424 were held for more than one year, six persons were held for more than five years, and one person was held for nearly eight years.
13. See American Civil Liberties Union Freedom of Information Act request data (on file with author) [hereinafter ACLU FOIA Data].
14. Susan Caroll, Immigrant Facilities Subpar: Chronicle Review Shows ICE Not Enforcing Its Own Standards of Care, Hous. CHRON., Feb. 5, 2010.
15. For an account of the government's initial efforts to keep news of detainee deaths quiet, see Nina Bernstein, Officials Hid Truth of Immigrant Deaths in Jail, N.Y. TIMES, Jan. 9, 2010, at A1. For information concerning DHS's reform plans.
16. see Press Release, Dep,t of Homeland Security, Secretary Napolitano and ICE Assistant Secretary Morton Announce New Immigration Detention Reform Initiatives (Oct. 6, 2009), available at http://www.dhs.gov/ynews/releases/pr- 1254839781410.shtm [hereinafter DHS Press Release].
17. DHS Press Release, supra note 11.
18. See, e.g., Alli v. Decker, 644 F. Supp. 2d 535, 539 (M.D. Pa. 2009) (finding that there is a "growing consensus within this district and, indeed it appears throughout the federal courts, that prolonged detention of aliens under § 1226(c) raises serious constitutional concerns.").
19. See Casas-Castrillon v. Dep,t of Homeland Sec, 535 F.3d 942, 950-51 (9th Cir. 2008);
20. Hussain v. Mukasey, 510 F.3d 739, 743 (7th Cir. 2007);
21. Ly v. Hansen, 351 F.3d 263, 269-70 (6th Cir. 2003).
22. Id.
23. See Hussain, 510 F.3d at 742 (finding the appeal moot after the issuance of a final administrative removal order).
24. Compare Alii, 644 F. Supp. 2d at 546 (finding that the court lacked jurisdiction to enter class-wide relief).
25. With Rodriguez v. Hayes, 578 F.3d 1032,1051 (9th Cir. 2009) (reversing the District Court's denial of class certification).
26. See infra Part II.A.
27. See Tijani v. Willis, 430 F.3d 1241, 1246 (9th Cir. 2005) (Tashima, J., concurring).
28. From 2004 to 2008, between 35% and 45% of immigrants have been represented by counsel in removal proceedings. EXEC. OFFICE FOR IMMIGRATION REVIEW, U.S. DEPT OF JUSTICE, FY 2008 STATISTICAL YEAR BOOK Gl (2009), http://www.justice.gov/eoir/statspub/fy08syb.pdf. The number of detainees represented in removal proceedings is much smaller; a recent study shows that in 2007, 84% of detainees represented themselves pro se.
29. NINA SIULC ET AL., VERA INST, OF JUSTICE, IMPROVING EFFICIENCY AND PROMOTING JUSTICE IN THE IMMIGRATION SYSTEM: LESSONS FROM THE LEGAL ORIENTATION PROGRAM 1 (2008), available at http://www.vera.org/download?file=1780/ LOP%2BEvaluation. For a discussion of the crisis in representation of immigrant detainees,
30. see Peter L. Markowitz, Barriers to Representation for Detained Immigrants Facing Deportation: Varick Street Detention Facility, a Case Study, 78 FORDHAM L. REV. 541, 541-16 (2009).
31. See JACOB CHIN ET AL., ATTORNEYS, PERSPECTIVES ON THE RIGHTS OF DETAINED IMMIGRANTS IN MINNESOTA (2009), available at http://www.mcaa-mn.org/docs/2009/ 20091204121228744.pdf.
32. See Developments in the Law-Access to Courts, 122 HARV. L. REV. 1181, 1186-88(2009).
33. See, e.g., CHIN ET AL., supra note 21; Sw. INST, FOR RESEARCH ON WOMEN, UNIV. OF ARIZONA, UNSEEN PRISONERS: A REPORT ON WOMEN IN IMMIGRATION DETENTION FAcmnES IN ARIZONA (2009), available at http://sirow.arizona.edu/files/ UnseenPrisoners.pdf;
34. FLA. IMMIGRANT ADVOCACY CTR., DYING FOR DECENT CARE: BAD MEDICINE IN IMMIGRATION CUSTODY 10-27 (2009), available at http://www.fiacfla.org/reports/ DyingForDecentCare.pdf;
35. NEW OR LEANS WORKERS, CTR. FOR RACIAL JUSTICE, DETENTION CONDITIONS AND HUMAN RIGHTS UNDER THE OBAMA ADMINISTRATION: IMMIGRANT DETAINEES REPORT FROM BASILE, LOUISIANA (Jul. 2009), available at http://www.nowcrj.org/wp-content/ uploads/2009/07/detention-conditions-report.pdf.
36. For a history of immigration bond provisions, see infra Part I.A.
37. See, e.g., Casas-Castrillon v. Dep,t of Homeland Sec, 535 F.3d 942, 947-48 (9th Cir. 2008) (construing the mandatory detention statute to authorize detention only for a reasonable period);
38. Gonzalez v. O'Connell' 355 F.3d 1010,1020 (7th Cir. 2004) (noting that the court has left open the question of "whether mandatory detention under § 1226(c) is consistent with due process when a detainee makes a colorable claim that he is not in fact deportable");
39. Ly v. Hansen, 351 F.3d 263, 269-70 (6th Cir. 2003).
40. See Brief for Petitioner at 3, Hussain v. Mukasey, 518 F.3d 534 (7th Or. 2008) (No. 07-3688) [hereinafter Hussain Brief].
41. See STANLEY WOLPERT, A NEW HISTORY OF INDIA 348 (1993).
42. Hussain Brief, supra note 26, at 3.
43. OSKAR VERKAAIK, MIGRANTS AND MILITANTS: FUN AND URBAN VIOLENCE IN PAKISTAN 2 (2004).
44. Hussain Brief, supra note 26, at 3-4.
45. VERKAAIK, supra note 29, at 66.
46. Hussain Brief, supra note 26, at 4.
47. Id. at 7-8.
48. Id. at 8-10.
49. Id. at 10-12.
50. Id. at 12.
51. As legal authority for the adjustment, Hussain relied on a provision that allowed certain applicants who had failed to follow correct immigration procedures to adjust status anyway, if they paid a $1000 fine.
52. See 8 U.S.C. § 1255(i) (2006).
53. Hussain Brief, supra note 26, at 15.
54. Id. at 16-17.
55. Id. at 17.
56. Id.
57. Id. at 15.
58. See 18 U.S.C. § 1425(a) (2006) (procurement of citizenship unlawfully);
59. 18 U.S.C. § 1001(a)(2) (2006) (false statements).
60. Carol Marin, What Makes a Good Judicial Nominee?, CHI. SUN-TIMES, Mar. 4, 2007, at B6.
61. United States v. Hussain, No. 04 CR 839-1, 2004 WL 2325745, at *6 (N.D. 111. Oct. 8, 2004) (mem. opinion). As a former IJ, Judge Der-Yeghiayan should have been well aware that despite a conviction, Hussain would have still been eligible for CAT and other forms of immigration relief that would allow him to remain in the United States.
62. Id.
63. See MattO'Connor' Pakistani Denied Bail as Founder of Terror-Group, CHI. TRIB., Oct. 8, 2004, at 4.
64. Hussain Brief, supra note 26, at 17.
65. Third Superseding Indictment, United States v. Hussain, No. 04 CR 839-1, 2005 WL 5704122 (N.D. 111. Apr. 27, 2005).
66. The Government's additional charge was pursuant to 18 U.S.C. § 911 (2006), which prohibits false attestations of United States citizenship.
67. Hussain Brief, supra note 26, at 18.
68. See Rodriguez v. Hayes, 578 F.3d 1032, 1040 (9th Cir. 2009).
69. Immigrants who are deemed inadmissible upon arrival at a port of entry are subject to detention and expedited removal.
70. See 8 U.S.C. § 1225 (2006). "Parole," in this context, is a term of art that refers both to the discretionary authority of DHS to allow an otherwise inadmissible "arriving alien" into the United States without granting her the rights that would come with a more formal "admission,"w
71. see 8 U.S.C. § 1182(d)(5)(A) (2006); 8 C.F.R. § 212.5 (2009), as well as the discretion of DHS to not detain such an arriving alien,
72. see 8 U.S.C. § 1226(a)(2)(B) (2006). Recently, parole has been used to informally admit various categories of immigrants, ranging from persons who are granted "deferred inspection" to obtain necessary evidence of their admissibility, to Haitian orphans admitted after the January 2010 earthquake.
73. See 8 C.F.R. § 235.2 (2009) (deferred inspection of certain arriving aliens);
74. Press Release, Dep,t of Homeland Security, Secretary Napolitano Announces Humanitarian Parole Policy for Certain Haitian Orphans (Jan. 18, 2010), available at http://www.dhs.gov/ynews/releases/pr-1263861907258.shtm. One significant category of immigrants who are eligible for parole is arriving asylum seekers.
75. See HUMAN RIGHTS FIRST, U.S. DETENTION OF ASYLUM SEEKERS SEEKING PROTECTION, FINDING PRISON 47 (2009), available at http://www.humanrightsfirst. org/pdf/090429-RP-hrf-asylum-detention-report.pdf. In recent history, very few asylum seekers have been granted parole.
76. Id. at 31. However, in December 2009, DHS released revised parole guidelines, which should make it much easier for asylum applicants to be released.
77. See ICE, REVISED PAROLE POLICY FOR ARRIVING ALIENS WITH CREDIBLE FEAR CLAIMS (Dec. 17, 2009), available at http://www.ice.gov/pi/news/factsheets/ credible-fear.htm.
78. C.F.R. § 1003.19(h)(2)(i) (2009) (barring Us from reviewing DHS's custody determinations with respect to various categories of detained immigrants).
79. Cf. Matter of Adeniji, 22 I. &N. Dec. 1102, 1111-12 (BIA 1999) (general bond standard);
80. Matter of Joseph, 221. &N. Dec. 799, 806 (BIA 1999) (standard for immigrants alleged to be subject to mandatory detention).
81. C.F.R. § 241.4(a) (2009).
82. See Matter of Patel, 15 I. &N. Dec. 666, 666 (BIA 1976).
83. Id.
84. Anti-Drug Abuse Act, Pub. L. No. 100-690, 102 Stat. 4181 (1988).
85. Id. §7342.
86. Id. § 7343(a)(4).
87. See, e.g., Kellman v. INS, 750 F. Supp. 625, 626 (S.D.N.Y. 1990).
88. Pub. L. No. 104-132, § 440, 110 Stat. 1214, 1277 (1996).
89. U.S.C. § 1226(c)(1) (2006).
90. Pub. L. No. 104-208, 110 Stat. 3009 (1996).
91. Pub. L. No. 104-208, § 321, 110 Stat. 3009-627 (1996). For example, IIRIRA created a new aggravated felony category for crimes involving sexual abuse of a minor, and reduced the sentence necessary to make a theft or crime of violence an aggravated felony from five years to one year.
92. Id.
93. U.S.C. § 1226(a) (2006).
94. Id. § 1226(c).
95. See Mei v. Ashcroft, 393 F.3d 737, 739 (7th Or. 2004).
96. Hussain Brief, supra note 26, at 18.
97. DHS makes initial custody decisions for aliens involved in proceedings, but Us have the authority to review DHS's initial determination upon an oral or written request made by the alien.
98. See 8 C.F.R. §§ 236.1(c)(8), 1003.19 (2009).
99. See Memorandum Opinion and Order, In re Mohammad Azam Hussain, A070-921-157 (Chi. Immigr. Ct. Feb. 23, 2006) [hereinafter Bond Memo].
100. 22 I. &N. Dec. 799 (BIA 1999).
101. See id. at 806.
102. See 8 U.S.C. § 1158 (2006) (asylum);
103. 8 U.S.C. § 1231(b)(3) (2006) (withholding of removal);
104. 8 C.F.R. § 208.18 (2009) (Convention Against Torture).
105. Hussain Brief, supra note 26, at 18-20.
106. Id. at 20.
107. Id.
108. Id.
109. Matter of Joseph, 22 I. &N. Dec. 799, 806 (BIA 1999).
110. Brief for Appellant on Appeal of Immigration Judge's Redetermination of Bond, In re Hussain, A070-921-157 (BIA Mar. 29, 2007).
111. 8 C.F.R. § 1003.19(h)(2)(i)(C) (2009).
112. Bond Memo, supra note 72, at 2.
113. See 8 C.F.R. §§ 1003.6(c), 1003.19(i) (2009).
114. SCHRIRO, supra note 1, at 10.
115. Id.
116. Id.
117. Id. at 6.
118. See HUMAN RIGHTS FIRST, supra note 53, at 47.
119. Renee Feltz, Focus on "Criminal Aliens" Increases Demand for Immigrant Detention Business, HUFFINGTON POST, NOV. 5, 2009, http://www.huffingtonpost.com/renee-feltz/focus-on-criminal-aliens-b-347303. html.
120. Nina Bernstein, Immigrant Jail Tests U.S. View of Legal Access, N.Y. TIMES, Nov. 2, 2009, at A1. On January 14, 2010, ICE announced that it intends to suspend use of the Varick Street facility. Press Release, Immigration and Customs Enforcement, ICE to Suspend the Use of Varick Facility to House Detainees (Jan. 14, 2010), available at http://www.ice.gov/pi/nr/1001/ 100114newyork1.htm (last visited Jan. 23, 2010).
121. Id.
122. See Nina Bernstein, Hurdles Shown in Detention Reform, N.Y. TIMES, Aug. 20, 2009, at A21; Nina Bernstein, Piecing Together an Immigrant's Life the U.S. Refused to See, N.Y. TIMES, Jul. 6, 2009, at A1;
123. Amy Goldstein &Dana Priest, In Custody, In Pain: Beset by Medical Problems as She Fights Deportation, A U.S. Resident Struggles to Get the Treatment She Needs, WASH. POST, May 12, 2008, at A1;
124. Dana Priest &Amy Goldstein, System of Neglect: As Tighter Immigration Policies Strain Federal Agencies, the Detainees in Their Care Often Pay a Heavy Cost, WASH. POST, May 11, 2008, at A1.
125. Nina Bernstein, Mentally III and in Immigration Limbo, N.Y. TIMES, May 4, 2009, at A17;
126. Dana Priest &Amy Goldstein, Suicides Point to Gaps in Treatment: Errors in Psychiatric Diagnoses and Drugs Plague Strained Immigration System, WASH. POST, May 13, 2008, at A1.
127. SCHRIRO, supra note 1, at 16.
128. Anna Gorman, Immigration Detention Centers Failed to Meet Standards, Report Says, L.A. TIMES, July 29, 2009, at A14.
129. HUMAN RIGHTS WATCH, LOCKED UP FAR AWAY: THE TRANSFER OF IMMIGRANTS TO REMOTE DETENTION CENTERS IN THE UNITED STATES 1 (2009), available at http://www.hrw.org/sites/default/files/reports/us1209web.pdf.
130. Id.
131. E-mail from Geoffrey Heeren, Senior Attorney, Legal Assistance Fund of Metropolitan Chicago, to Glenn THveline, U.S. Department of Homeland Security (Oct. 28, 2005 10:09 CST) (on file with author).
132. Greg Trotter, A mission shared, a flock divided, MEDILL REPS., available at http://news.medill.northwestem.edu/chicago/govt/story.aspx?id=156797.
133. E-mail from Christopher McDaniels, Supervisory Detention and Deportation Officer, U.S. Department of Homeland Security, to Geoffrey Heeren, Senior Attorney, Legal Assistance Foundation of Metropolitan Chicago (Oct. 16, 2006, 16:19 CST) (on file with author).
134. I complained about the loss of Hussain's commissary funds, and they were eventually returned to him in October 2007. E-mail from Geoffrey Heeren, Senior Attorney, Legal Assistance Foundation of Metropolitan Chicago, to Charles Scoles, Supervisory Detention and Deportation Officer, U.S. Department of Homeland Security (Sept. 27, 2007, 15:16 CST) (on file with author); E-mail from Charles Scoles, Supervisory Detention and Deportation Officer, U.S. Department of Homeland Security, to Geoffrey Heeren, Senior Attorney, Legal Assistance Foundation of Metropolitan Chicago (Oct. 2, 2007, 11:04 CST) (on file with author).
135. Bernstein, supra note 10.
136. E-mail from Lennie Lehman, Assistant United States Attorney, Office of the United States Attorney, Eastern District of Wisconsin, to Geoffrey Heeren, Senior Attorney, Legal Assistance Foundation of Metropolitan Chicago (Mar. 30, 2007, 10:33 CST) (on file with author).
137. E-mail from Lennie Lehman, Assistant United States Attorney, Office of the United States Attorney, Eastern District of Wisconsin, to Geoffrey Heeren, Senior Attorney, Legal Assistance Foundation of Metropolitan Chicago (Apr. 2, 2007, 09:52 CST) (on file with author).
138. E-mail from Captain Philip Jarres, Associate Director, Division of Immigration Health Services, Headquarters Held Operations Branch, to Geoffrey Heeren, Senior Attorney, Legal Assistance Foundation of Metropolitan Chicago (Aug. 16, 2007, 08:07 CST) (on file with author).
139. E-mail from Captain Philip Jarres, Associate Director, Division of Immigration Health Services, Headquarters Held Operations Branch, to Geoffrey Heeren, Senior Attorney, Legal Assistance Foundation of Metropolitan Chicago (Aug. 16, 2007, 12:11 CST) (on file with author).
140. E-mail from Charles Scoles, Supervisory Detention and Deportation Officer, U.S. Department of Homeland Security, to Geoffrey Heeren, Senior Attorney, Legal Assistance Foundation of Metropolitan Chicago (Sept. 27, 2007, 09:15 CST) (on file with author).
141. E-mail from Charles Scoles, Supervisory Detention and Deportation Officer, U.S. Department of Homeland Security, to Geoffrey Heeren, Senior Attorney, Legal Assistance Foundation of Metropolitan Chicago (Oct. 11, 2007, 12:27 CST) (on file with author).
142. E-mail from Geoffrey Heeren, Senior Attorney, Legal Assistance Foundation of Metropolitan Chicago to Charles Scoles, Supervisory Detention and Deportation Officer, U.S. Department of Homeland Security (Mar. 20, 2008, 10:06 CST) (on file with author).
143. E-mail from Charles Scoles, Supervisory Detention and Deportation Officer, U.S. Department of Homeland Security, to Geoffrey Heeren, Senior Attorney, Legal Assistance Foundation of Metropolitan Chicago (Mar. 28, 2008, 14:10 CST) (on file with author).
144. E-mail from Charles Scoles, Supervisory Detention and Deportation Officer, U.S. Department of Homeland Security, to Geoffrey Heeren, Senior Attorney, Legal Assistance Foundation of Metropolitan Chicago (Apr. 3, 2008, 15:15 CST) (on file with author);
145. E-mail from Chris McDaniels, Assistant Field Office Director, U.S. Department of Homeland Security, to Geoffrey Heeren, Senior Attorney, Legal Assistance Foundation of Metropolitan Chicago (Apr. 7, 2008, 15:38 CST) (on file with author).
146. E-mail from Geoffrey Heeren, Senior Attorney, Legal Assistance Foundation of Metropolitan Chicago to Chris McDaniels, Assistant Field Office Director, U.S. Department of Homeland Security (Apr. 10, 2008, 15:53 CST) (on file with author).
147. E-mail from Chris McDaniels, Assistant Held Office Director, U.S. Department of Homeland Security, to Geoffrey Heeren, Senior Attorney, Legal Assistance Foundation of Metropolitan Chicago (May 2, 2008, 16:43 CST) (on file with author).
148. For another example of the government's efforts to dodge paying for an expensive illness, see Bernstein, supra note 11 (discussing how DHS officials conferred over e-mail about options for avoiding the cost of treatment for a dying Guinean immigrant, including sending him back to his native Guinea or simply releasing him).
149. 533 U.S. 678(2001).
150. 538 U.S. 510(2003).
151. Zadvydas, 533 U.S. at 684.
152. Id. at 684-86.
153. Id. at 683.
154. Id. at 689.
155. Id.
156. Id. at 690.
157. Id. at 699.
158. Id.
159. Id. at 699-702. In Clark v. Martinez, 543 U.S. 371, 378 (2005), the Court extended its holding in Zadvydas to another category of immigrants: "inadmissible" persons.
160. See 8 U.S.C. § 1231(a)(6) (2006). There is a distinction in immigration law, which is beyond the scope of this article, between grounds for "inadmissibility," which apply to immigrants in some circumstances, and grounds for "deportability," which apply in others. Compare 8 U.S.C. § 1182 (2006), with 8 U.S.C. § 1227 (2006). The Government had argued in Clark that there were constitutional and policy justifications for treating inadmissible immigrants differently than deportable immigrants, but the Court found that statutory language cannot be interpreted one way with respect to one category and a different way with respect to another. Clark, 543 U.S. at 377-78.
161. See Continued Detention of Aliens Subject to Final Orders of Removal, 66 Fed. Reg. 56, 968-69 (Nov. 14, 2001).
162. Demore v. Kim, 538 U.S. 510, 513 (2003).
163. Id. at 513 n.1.
164. Id. at 513-14.
165. Id. at 518.
166. Id. at 519.
167. Id.
168. Id. at 528.
169. Id at 527-28.
170. Id. at 530. Kim was detained for six months, a bit longer than the average, but Justice Rehnquist noted that he had requested a continuance.
171. Id at 530-31.
172. Id. at 532-33 (Kennedy, J., concurring).
173. Id. at 578 (Breyer, J., concurring in part and dissenting in part).
174. Id.
175. 351 F.3d 263 (6th Cir. 2003).
176. Id. at 270-71.
177. 430 F.3d 1241 (9th Cir. 2005).
178. 443 F.3d 1069 (9th Cir. 2006).
179. Tijani, 430 F.3d at 1242.
180. Tijani, 430 F.3d at 1243.
181. Id. at 1079.
182. Id. at 1083-84.
183. See, e.g., Zabadi v. Chertoff, No. 05-1796, 2005 WL 1514122 (N.D. Cal. June 17, 2005);
184. Zavala v. Ridge, 310 F. Supp. 2d 1071 (N.D. Cal. 2004);
185. Ashley v. Ridge, 288 F. Supp. 2d 662 (D.N.J. 2003);
186. Uritsky v. Ridge, 286 F. Supp. 2d 842 (E.D. Mich. 2003);
187. Bezmen v. Ashcroft, 245 F. Supp. 2d 446 (D. Conn. 2003).
188. See Washington Mutual Bank v. Hussain, 2006-CH-21229 (Cir. Ct. Cook County 111. Oct. 6, 2006), available at http://www.cookcountyclerkofcourt.org/? section=CASEINFOPage&CASEINFOPage=2400 (enter Case Year "2006," then enter Division Code "CH," then enter Case Number "21229," then select "Search Now"). Another attorney at the Legal Assistance Foundation of Metropolitan Chicago, David Yen, filed a bankruptcy that allowed Hussain to stave off foreclosure.
189. See In re Patricia Eng Hussain, No. 07-10011 (Bankr. N.D. 111. June 4, 2007).
190. See DAVID NGARURI KENNEY AND PHILIP G. SCHRAG, ASYLUM DENIED: A REFUGEE'S STRUGGLE FOR SAFETY IN AMERICA 169 (2008).
191. Id.
192. Id.
193. See 8 C.F.R. § 1003:19(i)(1) (2009).
194. 24 I. &N. Dec. 124 (BIA 2007).
195. Id. at 127.
196. Id. at 124-25.
197. Hussain Brief, supra note 26, at 21.
198. Id. at 22.
199. Id.
200. Decision of the Board of Immigration Appeals on Bond Appeal, In re Mohammad Hussain, A070-921-157 (BIA May 4, 2007) (on file with author).
201. Hussain v. Gonzales, 492 F. Supp. 2d 1024, 1036 (E.D. Wis. 2007).
202. Id. at 1035.
203. Id.
204. Id.
205. Id.
206. Hussain Brief, supra note 26, at 22-23.
207. Hussain v. Mukasey, 510 F.3d 739, 741-42 (7th Cir. 2007) (decision concerning the habeas appeal).
208. Id. at 739.
209. Id. at 742.
210. Id. at 743.
211. Id.
212. Id.
213. Hussain v. Mukasey, 518 F.3d 534 (7th Cir. 2008) (decision concerning the merits appeal).
214. See 8 U.S.C. § 1231(a)(1)(B)(ii) (2006) (providing that in a case where a court of appeals has granted a stay of removal, the "removal period" begins on the date of the court's final order).
215. See, e.g., Tim Golden, Chinese Leave Guantánamo for Albanian Umbo, N.Y. TIMES, June 10, 2007, at A1.
216. See, e.g., Cesar v. Achim, 542 F. Supp. 2d 897, 899 (E.D. Wis. 2008).
217. 8 U.S.C. § 1231(a)(1)(B)(ii) (2006).
218. Immigration and Customs Enforcement, Decision to Continue Detention, In re Mohammad Azam Hussain, A070-921-157 (Feb. 27, 2008) (on file with author).
219. Hussain was released on June 4, 2008 on electronic monitoring. See Hussain Order of Supervision (on file with author).
220. See supra notes 93-94.
221. SCHRIRO, supra note 1.
222. Id. at 18-19.
223. Id. at 21, 23.
224. Id. at 24.
225. Id. at 20-21.
226. Id. at 5, 26.
227. Id. at 24-25.
228. Id. at 27-28.
229. Id. 18-19, 28-29.
230. Id. at 25-26.
231. Id.
232. Id. at 6.
233. Id.
234. Compare HUMAN RIGHTS FIRST, supra note 53, at 8 ($95 per day cost of detention), with KERWIN &LIN, supra note 6, at 4 ($141 per day).
235. Demore v. Kim, 538 U.S. 510, 518 (2003).
236. ACLU FOIA Data, supra note 9.
237. 8 U.S.C. § 1226(c)(1) (2006).
238. See Nijhawan v. Holder, 129 S. Ct. 2294, 2299 (2009) (explaining the "categorical approach" to determining whether a conviction constitutes an aggravated felony for immigration purposes).
239. See id;
240. Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007);
241. Lopez v. Gonzales, 549 U.S. 47 (2006);
242. Leocal v. Ashcroft, 543 U.S. 1 (2004);
243. Carachuri-Rosendo v. Holder, 570 F.3d 263 (5th Cir. 2009), cert, granted 78 U.S.L.W. 3058 (U.S. Dec. 14, 2009) (No. 09-60).
244. The fact that DHS released Hussain on the ninetieth day after the Seventh Circuit decision reveals an attitude towards detention, on DHS's part, that is excessively bureaucratic and formalistic. It should have been clear that DHS would not succeed in removing Hussain to India or any other country, but it still exercised its authority to detain him for the maximum time permissible under the regulations before the post-order custody review process kicked in.
245. See 8 C.F.R. § 241.4 (2009). This last 90-day detention of Hussain, the cost of which likely exceeded $9000, was for all practical intents and purposes, pro forma.
246. Four organizations represented Hussain over the course of his habeas: the Legal Assistance Foundation of Metropolitan Chicago; the Mandel Legal Aid Clinic at the University of Chicago; the ACLU; and Jenner &Block. Among the attorneys on the case were former Chief Judge of the D.C. Circuit Court of Appeals and President Clinton's former Chief Counsel, Abner Mikva.
247. Casas-Castrillon v. Dep,t of Homeland Sec, 535 F.3d 942, 947-48 (9th Cir. 2008). The Ninth Circuit's rationale is somewhat involved. In general, after the Board has affirmed a removal order so that it is administratively final, the authority for detention is pursuant to 8 U.S.C. § 1231 (2006). However, in Casas-Castrillon, the Ninth Circuit recognized, as have the majority of circuits to have considered this issue, that where a court has entered a stay of removal, the authority for detention is pursuant to § 1226. The court then considered whether detention during the course of a federal appeal should be considered to be pursuant to § 1226(c) or 1226(a). The court held that § 1226(c) can only apply during removal proceedings, which are complete as of the date that a removal order is administratively final. Thus, the Court found that the Government's detention authority for an immigrant with a pending circuit court appeal and stay of removal is under the discretionary detention provision, 8 U.S.C. § 1226(a), meaning mat an immigrant in that situation can seek bond from an immigration court.
248. Hussain v. Mukasey, 510 F.3d 739, 743 (7th Cir. 2007).
249. See In re Kotliar, 24 I. &N. Dec. 124, 127 (BIA 2007) (immigrant can be subject to mandatory detention without having been charged with a ground of mandatory detention).
250. See Matter of Joseph, 22 I. &N. Dec. 799, 806 (BIA 1999).
251. For some of the jurisdictional bars to federal litigation, see 8 U.S.C. § 1252(a)(2) (2006).
252. See 8 U.S.C. § 1229b (2006) (cancellation of removal).
253. Demore v. Kim, 538 U.S. 510, 518 (2003).
254. U.S. IMMIGRATION &CUSTOMS ENFORCEMENT, ICE FISCAL YEAR 2008 ANNUAL REPORT 4 (2009), http://www.ice.gov/doclib/pi/reportsAce-annuaLreport/pdf/ ice08ar-final.pdf.
255. U.S. IMMIGRATION &CUSTOMS ENFORCEMENT, ICE FACT SHEET-ALTERNATIVES TO DETENTION FOR ICE DETAINEES (2009), http://www.ice.gov/pi/news/factsheets/ alternativestodetention.htm.
256. See, e.g., Comprehensive Immigration Reform for America's Security and Prosperity Act of 2009, H.R. 4321, 111th Cong., § 159(j)(2) (2009) (providing for review of all detention by an IJ).
257. See 8 C.F.R. § 1003.19(h)(2)(i) (2009) (barring Us from reviewing DHS's custody determinations with respect to arriving aliens);
258. 8 C.F.R. § 241.4(a) (2009) (granting exclusive authority to DHS to consider the release of immigrants detained after the issuance of an order of removal).
259. See, e.g., Casas-Castrillon v. Dep,t of Homeland Sec, 535 F.3d 942, 947-8 (9th Cir. 2008);
260. Ly v. Hansen, 351 F.3d 263, 269-70 (6th Cir. 2003).
261. See Gonzalez v. O'Connell' 355 F.3d 1019, 1020 (7th Cir. 2004) (noting that it is an open question whether § 1226(c) should be read to apply to an individual who has raised a colorable challenge to his deportability).
262. See Demore v. Kim, 538 U.S. 510, 578 (2003) (Breyer, J., concurring) (observing that § 1226(c) "literally say[s] nothing about an individual who, armed with a strong argument against deportability, might, or might not, fall within [its] terms").
263. Unofficial Minutes from the Chicago American Immigration Lawyers Association ("AILA") Chapter ICE Liaison Meeting (Nov. 10, 2009) (on file with author).
264. See Williams v. Wisconsin, 336 F.3d 576, 579 (7th Cir. 2003).
265. See Korematsu v. United States, 323 U.S. 214 (1944) (concerning the constitutionality of Japanese-American internment during World War II).
266. For a discussion of the post-September 11th use of immigration law as a tool of national security and the expansion of legal understandings of "terrorism," see DAVID COLE, ENEMY ALIENS 22-35, 57-64 (2003).
267. Demote, 538 U.S. at 518-19.