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After regularly updating crimmigration.com from January 2009 until November 2022, I have stopped doing so. I hope you continue to benefit from the blog as an archive. For up-to-date information about my work, visit ccgarciahernandez.com. – César

Detention & Due Process in S. 744: The NYC Bar Speaks Out, Part 2

Mark Noferi

Yesterday, I highlighted the New York City Bar Association immigration committee’s advocacy for universal appointed counsel in immigration proceedings, as well as City Bar’s analysis of Senate Judiciary Committee amendments that would roll back the limited right provided by S. 744. (City Bar’s April 24 letter supporting appointed counsel is available here, and its statement here).

Today, I’ll highlight City Bar’s advocacy for reduced detention, and its analysis of amendments that, similarly, roll back the advances provided by S. 744. (City Bar’s second letter supporting reduced detention is available here). As yesterday, although I summarize here some of City Bar’s positions, I speak in my personal capacity.


***

S. 744, while not dismantling the current system of immigration detention and deportation, took some significant steps to reduce over-detention, as César and myself previously summarized. S. 744 effectively revised mandatory detention without bail, for those with certain prior offenses, into mandatory “detention or custody,” now allowing alternative forms of custody like tracking bracelets. (This would overturn DHS’ interpretation that “custody” requires incarceration, despite opposing authority in criminal law.)

More generally, S. 744 encouraged alternatives to detention such as community-based supervision; provided important due process protections, such as timely bond hearings; and required additional, much-needed oversight and transparency over DHS detention facilities, whether publicly or privately owned. All these reforms would make civil immigration detention more humane, more fair, more cost-effective—and most importantly, there would be less of it. As the City Bar said, citing crImmigration.com, “if the term ‘civil’ detention means anything, it is that ICE should detain not just better, but less.” For those reasons, City Bar urged Congress to repeal mandatory detention or custody entirely, as other organizations repeatedly have.

Subsequently, Senator Charles Grassley (R-IA) proposed three amendments— 47, 51, and 53—that would collectively strike these reforms and reinstate and expand over-detention. Sen. Grassley’s Amendment 47 would entirely strike Section 3717, which provides due process protections such as bond hearings and time limits on detention. Amendment 51 would entirely strike Section 3715, which encourages alternatives to detention. And Amendment 53 would replace these sections with expanded detention, regardless of flight or safety risk.

Reading Amendment 53’s provisions is like inhabiting a parallel universe, in which the current detention system’s worst abuses are considered problems that more detention should fix. Under Amendment 53, mandatory pre-hearing detention would explicitly have no time limits, and apply no matter how long ago an individual completed criminal custody. (Needless to say, mandatory detention would also apply no matter how long one lived in America or whether one had a green card, job, or family.) For discretionary detention decisions, the burden on immigrants to prove their release would worsen, to “clear and convincing evidence.” (S. 744, conversely, shifted the burden to the government to detain, only if “no conditions including… alternatives to detention” would “reasonably assure” appearance at hearings or public safety). Moreover, Amendment 53 explicitly eliminated any ability of immigration judges to review custody status. And Amendment 53 expands mandatory detention after a removal order, as well.

Amendment 53 flies in the face of bipartisan support for detention reform. Nine in ten Americans, of all parties, support a “time limit on how long someone can be held in jail for immigration violations before they see a judge.” Conservative activist Grover Norquist and Rep. Spencer Bachus (R-AL) have questioned whether DHS is over-detaining immigrants. As Rep. Bachus asked ICE Director John Morton, “If these people are not public safety risks, if they are not violent, if they don’t have a criminal history, if they are not repeat offenders, if they’re going to show up for proceedings, why are they detained at all?” Indeed, Rep. Bachus went further: “Are some of those [immigrants] mandatory detentions that [ICE] could recommend to Congress that they not be?”

Moreover, Sen. Grassley’s amendments are likely unconstitutional. Unlimited detention without any judicial review violates due process and fundamental American presumptions of liberty, and raises “serious constitutional concerns,” as the U.S. Supreme Court ruled in Zadvydas v. Davis, 533 U.S. 678, 682 (2001). Lawsuits are already underway to challenge the harshest provisions of Amendment 53: prolonged detention without a bond hearing, the high burden already placed on immigrants to be released, and mandatory detention of those with convictions completed long ago. Undoubtedly more will follow if Amendment 53 is passed. City Bar opposed these Amendments.

Additionally, Sen. Jeff Sessions (R-AL) proposed an amendment (Sessions 12) to increase the bond minimum, from $1,500 to $5,000, to non-Mexican and non-Canadian immigrants (such as asylum seekers) who have not been admitted or paroled, and who are either 1) apprehended within 100 miles of the border or 2) present a “flight risk” as determined by ICE.

City Bar opposed this amendment as well. High bail is unfair to those without money. As the Justice Policy Institute wrote, the “ability to pay money is neither an indicator of guilt nor of risk, and means people are not properly screened for more rational measures of public safety.” Immigration bonds already are unnecessarily high—and far higher than those for criminal defendants, even though immigrants are less dangerous. For New York ICE arrestees, 75% of bond settings are $5,000 or more, and 35% are $10,000 or more. 55% of those ICE arrestees were unable to pay, and one in five of those have children. Conversely, for New York criminal pretrial detainees, 80% of bond settings are $1,000 and below. (These statistics come from the study “Insecure Communities,” authored by the NYU Immigrants’ Rights Clinic, the Immigrant Defense Project, and Families for Freedom.) Indeed, in City Bar’s initial letter, City Bar proposed to entirely eliminate the current $1,500 artificial immigration bond minimum, and make bond determinations more like the criminal system, where judges review bond under clear criteria without artificial restrictions.

As part of a transparent bond review process, City Bar also supported risk assessment as having “promise to reduce over-detention.” That said, City Bar noted that currently, “ICE appears to be making computerized determinations regarding immigrants’ liberty based on a secret algorithm with no opportunity for immigrants to change or review information.” City Bar recommended immediate disclosure of ICE’s risk assessment criteria, and that risk assessments be reviewed in immigration court. Robert Koulish, a University of Maryland political scientist, and I are writing about the promises and dangers that risk assessment poses (most recently, in the Baltimore Sun and Newark Star-Ledger). We’ll continue this conversation tomorrow.

Mark Noferi teaches immigrants’ rights and legal writing at Brooklyn Law School.

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