By Mark Noferi
Here is a summary of the appointed counsel, detention, bond, and stipulated removal provisions in the new Gang of Eight bill. (The 844-pg bill is available here).
The bill essentially provides for appointed counsel to unaccompanied minors, the mentally disabled, or those “particularly vulnerable when compared to other aliens in removal proceedings.” See Sec. 3502(c), “Improving Immigration Court Efficiency and Reducing Costs By Increasing Access To Legal Information,” at bill p. 567 et. seq. (providing changes to 8 USC 1362, the current statutory right to counsel section, and 8 U.S.C. 1229a(b)(4), “alien’s rights in [removal] proceeding”). It also gives the Attorney General authority to appoint counsel at government expense to noncitizens in removal proceedings, “in the Attorney General’s sole and unreviewable discretion.” Sec. 3502(a), (b)(2). It reiterates that “[t]he Government is not required to provide counsel to aliens.” Id. Note that this echoes the Obama Administration draft proposal, with the addition of the “particularly vulnerable” language.
Funding for appointed counsel will be provided from the new “Comprehensive Immigration Reform Trust Fund,” Sec. 3502(d), as established at Sec. 6(a)(1) of the bill (p. 24 et. seq.) The Trust Fund will initially be established with $6.5 billion of general Treasury funds, an additional $100M of startup costs, and then receive ongoing funding through the collection of various visa fees and penalties. Many programs throughout the bill appear to be funded by the new Trust Fund.
The bill also establishes an “Office of Legal Access Programs” within EOIR. Sec. 3503. It appears to formalize and expand the Legal Orientation Program for detainees, and to statutorily require the LOP to perform the screening function for counsel to unaccompanied minors, the mentally disabled, or those “particularly vulnerable.” Sec. 3503(b). It also directs DHS to establish procedures to ensure that LOP is available to all detainees within 5 days of arrival into custody, so as to “[i]nform such aliens of the basic procedures of immigration hearings, their rights relating to those hearings under the immigration laws, information that may deter such aliens from filing frivolous legal claims, and any other information deemed appropriate by the Attorney General, such as a contact list of potential legal resources and providers.” Sec. 3503(c). That said, the statute provides that “[n]othing in this subsection shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.” Sec. 3503(d). LOP funding would also come from the general Trust Fund. Sec. 3503(e).
The bill also directs EOIR to produce a “practice manual” describing “best practices for the immigration courts” to be made available electronically. Sec 3506(b). There are other procedural provisions for hiring more IJs, training for IJs, BIA appeals, provision of digital recording, review of translation and transcription practices, etc. See generally. secs. 3501-06 (pp. 566-77).
Sec. 3717. Procedures For Bond Hearings and Filing of Notices To Appear (P. 652):
The bill now requires DHS to “immediately” determine whether alien “shall remain in custody or be released.” Sec 3717(a) (creating new INA Section 236(f), sp. new 236(f)(2)). Moreover, the bill now requires DHS to serve the custody decision upon the noncitizen within 72 hours after being taken into custody, with “the reasons for continued custody” and any bond amount. Id.
Previously, there was no requirement to serve a Notice of Custody at all. Mark Noferi, Cascading Constitutional Deprivation: The Right To Appointed Counsel For Mandatorily Detained Immigrants Pending Removal Proceedings, 18 Mich. J. Race & L. 63, 83 & n.103 (2012), citing 8 C.F.R. §236.1(g)(1) (immigration official “may” issue an I-286 Notice of Custody determination “at any time… up to the time removal proceedings are completed”).
The bill also now requires DHS to serve a Notice to Appear within 72 hours on anyone “taken into custody”. New section 236 (f)(1). The bill also requires DHS to “inform the alien of his or her rights under this paragraph,” i.e. re: bond hearings, “at the time the alien is first taken into custody.” New section 236 (f)(7). Together, these provisions would hopefully put every immigrant on notice within 72 hours of the reasons for his detention and possible deportation, and begin to allow him or her to challenge them.
It appears to remain the immigrant’s responsibility to affirmatively request the bond hearing (unlike the criminal system, where a bail hearing is affirmatively provided). See new section 236(f)(3). (Attorney General “shall ensure the alien has the opportunity to appear before an immigration judge for a custody determination hearing promptly after service of the Secretary’s custody decision”) (emphasis mine).
That said, the bill appears to presumptively provide for a bond hearing within 72 hours of service of the custody decision. On DHS’ motion, the immigration judge may for “good cause” postpone the “custody determination hearing” for 72 hours after service of the custody decision and no more than seven calendar days after being taken into custody. Id. Concomitantly, on the immigrant’s oral or written motion, the immigration judge may postpone the “custody determination hearing” for no more than 14 days. See new section 236(f)(4). (There appears no “good cause” requirement for the immigrant). Id.
At the bond hearing, (with exceptions below primarily regarding 236(c) mandatory detainees), the new statute places a higher burden on DHS to establish detention. The immigration judge “shall review the custody determination de novo” and may detain the alien “only if the Secretary demonstrates that no conditions, including the use of alternatives to detention that maintain custody over the alien, will reasonably assure the appearance of the alien as required and the safety of any other person and the community.” See new section 236(f)(5).
That said, the bill does not repeal mandatory detention under INA 236(c). See new section 236(f)(5) (“Except for aliens that the immigration judge has determined are deportable as described in section 236A [ed note: certified suspected terrorists] and 236(c)…”). Rather, it provides that “[f]or aliens detained under 236(c),” the immigration judge “may” review the custody determination “if the Secretary agrees the alien is not a danger to the community and alternatives to detention exist that assure the appearance of the alien as required and the safety of any other person and the community.” Accordingly, in one sense, the bill provides for immigration court review of the DHS 236(c) mandatory detention decision only if DHS allows it.
Importantly, though, that this and other sections of the new bill provide that 236(c) mandatory detention may now include alternatives to detention. See new section 236(f)(5) (“alternatives to detention that maintain custody over the alien”); Sec. 3715(d) (“If an individual is not eligible for release from custody or detention, the Secretary shall consider the alien for placement in secure alternatives that maintain custody over the alien to serve as detention, including the use of electronic ankle devices”) (described below). Thus, the bill appears to overrule DHS’ prior interpretation that mandatory “custody”—i.e. for pre-hearing detainees under INA 236(c)—requires mandatory “detention,” i.e. incarceration in a secure facility. See American Immigration Lawyers’ Association, Memorandum to David Martin, The Use of Electronic Monitoring and Other Alternatives to Institutional Detention on Individuals Classified under INA § 236(c) (Aug. 6, 2010).
Note also that the new bill can be read to require a Joseph detention hearing, reviewing DHS’ legal determination of 236(c) mandatory detention for prior crimes, before a bond hearing is denied under 236(c). In providing for a bond hearing within 72 hours of service of the custody decision except for those “the immigration judge has determined are deportable… [under] 236(c), the bill appears to envision that an immigration judge must determine mandatory deportability before the exception is met. It could be that the Joseph mandatory detention hearing is folded in to the bond hearing. Indeed, the new hearing is called a “custody determination hearing,” not just a “bond redetermination hearing.” That said, this section is a bit unclear.
(Note also there is a small list of crimes that would render someone mandatory deportable but not detainable, and the impact of this bill on those crimes is unclear. See Noferi, Cascading Constitutional Deprivation, 18 Mich. J. Race & L. at 87 n. 135, citing Gerald Seipp & Sophie Feal, The Mandatory Detention Dilemma: The Role of the Federal Courts in Tempering the Scope of INA §236(c), 10-07 Immigr. Briefings 1, 5-6 & nn.45-46 (2010).)
It also appears that every detainee – including 236(c) mandatory detainees – will now receive de novo custody determination hearings by an immigration judge “every 90 days so long as the alien remains in custody.” See new section 236(f)(6) (“In the case of any alien remaining in custody after a custody determination”) (emphasis mine). “The alien may obtain a de novo custody redetermination hearing upon a showing of good cause.” Id. This overrules the current DHS regulation that immigrants cannot ask for a redetermination unless a “material change of circumstances” occurs, even if they secure counsel. Noferi, Cascading, 18 Mich. J. Race & L. at 88 & n. 146, citing 8 C.F.R. §1003.19(e) (2012).
Sec 3715: Alternatives to Detention (p. 646):
The Gang of Eight bill directs DHS to create new “secure alternatives” programs, which appear to formalize current projects to establish alternatives to detention, through initiatives such as electronic tracking, etc. Sec. 3715 (p. 646).
As noted above, the bill appears to overrule DHS’ prior interpretation that mandatory “custody”—i.e. for pre-hearing detainees under INA 236(c)—requires mandatory “detention,” i.e. incarceration in a secure facility. Rather, Sec. 3715(d) provides that “If an individual is not eligible for release from custody or detention, the Secretary shall consider the alien for placement in secure alternatives that maintain custody over the alien to serve as detention, including the use of electronic ankle devices.” Indeed, sec. 3715(d) provides for use of “secure alternatives” for any detainee except one mandatorily detained as a suspected terrorist pursuant to Attorney General certification under INA 236A(8 U.S.C. 1226a). Id. (To my knowledge, no one to date has ever been detained under this authority.)
The bill further requires DHS make an “individualized” determination in determining whether to use secure alternatives. Sec. 3715(c). “Secure alternatives shall not be used when release on bail or recognizance is determined to be a sufficient measure to ensure appearances at immigration proceedings and public safety.” Id. (It is unclear who makes that determination, DHS or EOIR, although the context seems to suggest DHS).
These secure alternatives “shall” offer a continuum of supervision mechanisms and options including community support, depending on an assessment of each individual’s circumstances.” Sec. 3715(b). “[F]or each individual placed on secure alternatives [DHS] shall review the level of supervision on a monthly basis.” Sec. 3715(c). As I recall, I’m not sure if there is any current guidance as to when DHS reviews the level of supervision, if at all.
The bill provides that DHS “may” contract with nongovernmental organizations to implement secure alternatives that “maintain custody over the alien.” Sec. 3715(b). Presumably, this would allow contracting with private companies such as BI Incorporated, the subsidiary of the GEO Group that currently runs the “ISAP” electronic ankle monitoring contract. (It could also allow community-based organizations to supervise such a program as well).
Also, notably, the bill appears to require DHS to establish community-based supervision programs similar to the Appearance Assistance Program previously conducted with the Vera Institute. See Demore v. Kim, 538 U.S. 510, 565 (2003) (Souter, J., dissenting). The bill requires DHS “shall” contract with “nongovernmental community based organizations” to “conduct screening of detainees, provide appearance assistance services, and operate community-based supervision programs.” Sec. 3715(b).
Sec. 3716. Oversight of Detention Facilities (p. 647):
The bill provides new oversight mechanisms for DHS detention, and new requirements for DHS contracted facilities to comply with ICE detention standards.
The bill takes steps to make compliance with DHS/ICE detention standards mandatory for all facilities, whether federal, state, local, or private. Sec 3716 (a)(2). Compliance with DHS/ICE detention standards will now be a “material term” in all new, renegotiated, modified, or renewed detention contracts, specifically including “fee negotiations.” Sec. 3716(d)(1)(A). Moreover, DHS “shall” secure a “modification incorporating these terms for any existing contracts or agreements” within 180 days of the bill’s passage. Sec. 3716(d)(1)(B). Any detention contract not modified to incorporate DHS/ICE detention standards will be cancelled within 1 year of the bill’s passage (unless “the Secretary provides a reasonable extension to a specific detention facility that is negotiating in good faith”). Sec. 3716(d)(1)(C).
Moreover, all immigration detention facilities, whether federal, state, local, or private, shall be inspected by DHS at least annually for compliance with the most recent DHS/ICE detention standards. Sec 3716 (a)(2), (c)(1); see also ICE Detention Standards. DHS shall also conduct “routine oversight,” including “unannounced inspections.” Sec 3716 (c)(2).
DHS “shall impose meaningful financial penalties” upon facilities that fail to comply with DHS/ICE detention standards. Sec. 3716(d)(2)(A). Penalties “shall be imposed immediately after a facility fails to achieve an adequate or the equivalent median score in any performance evaluation.” Sec. 3716(d)(2)(B). However, penalties may be waived if “the facility corrects the noted deficiencies and receives an adequate score in not more than 90 days.” Sec. 3716(d)(2)(C). For multiple offenders, if “persistent and substantial non-compliance,” including “scoring less than adequate or the equivalent median score in 2 consecutive inspections,” DHS “shall terminate contracts or agreements with such facilities within 60 days,” or close DHS-operated facilities within 90 days. Sec. 3716(d)(2)(D).
DHS will report on its its detention inspection and oversight activities to the House and Senate Judiciary Committees each year. Sec. 3716(e). The report will include descriptions of facilities in noncompliance, remedial DHS actions, and whether such remedial actions ensured compliance. Sec. 3716(e)(2).
DHS also must make detention information public. DHS “shall require that detention facilities provide to the Secretary all contracts, memoranda of agreement, evaluations, and reviews regarding the facility on a regular basis,” and “make these materials publicly available.” Sec. 3716(d)(1)(D). Moreover, all “detention facility contracts, memoranda of agreement, and evaluations and reviews” are now considered agency records under FOIA. Sec. 3716 (c)(3), citing 5 § 552(f)(2). Thus, privately owned detention facilities would now have to disclose these records under FOIA as a government agency would.
DHS also “shall seek input from nongovernmental organizations regarding their independent opinion of specific facilities.” Sec 3716 (c)(4).
Sec 3717(d): Stipulated Removals: (p. 654):
The bill now requires that any stipulated removal entered by an immigration judge must be at an in-person hearing, upon a finding that the stipulation is “voluntary, knowing and intelligent.” Sec. 3717(d); see also Jennifer Lee Koh, Waiving Due Process (Goodbye): Stipulated Orders of Removal and the Crisis in Immigration Adjudication, 91 N.C. L. Rev. 475 (2013). As to stipulated removals between DHS and an immigrant, the bill directs the Attorney General to develop regulations. Id.