“Indefinite” Detention for Immigration Violations?

“Indefinite” Detention for Immigration Violations?

By Catherine Park

The question is whether the permissible length of detention is indefinite, per the statute, or undefined, per the statute (the “statute” being the Immigration and Nationality Act, or “INA”).

The Statute and Regulations

The Government’s authority to detain a noncitizen during removal proceedings is set forth at INA § 236, 8 U.S.C. § 1226. The decision to detain or release, or to grant, deny, or revoke “parole” (a temporary admission for purposes of adjudicating the noncitizen’s application for admission), is discretionary with DHS and not judicially reviewable, under INA § 236(e), 8 U.S.C. § 1226(e). Federal regulations permit Immigration Courts within the Department of Justice (DOJ), the Executive Office for Immigration Review (EOIR), to review the custody and bond determination, at 8 C.F.R. §§ 1003.19(a)-(c). Later requests for redetermination may be made upon a showing of a material change in the noncitizen’s circumstances, under id. § 1003.19(e).

Noncitizens may be subject to mandatory detention if they commit certain statutorily enumerated criminal offenses; commit multiple crimes; violate conditions of admission or lawful permanent residence through enumerated crimes; and/or commit acts of terrorism. INA § 236(c), 8 U.S.C. § 1226(c). [NOTE: This statutory section is currently being litigated in South Texas, where a federal district court held that § 1226(c) mandates detention of all noncitizens who meet the statutory criteria, thereby repudiating longstanding principles of prosecutorial discretion that prioritize threats to public safety for detention. The Fifth Circuit Court of Appeals affirmed the trial court. DOJ filed an application for stay/petition for writ of certiorari at the U.S. Supreme Court on July 8, 2022. See blog post (July 1, 2022), Judge Vacates Civil Immigration Enforcement Priorities, Government Appeals.]

A noncitizen mandatorily detained under § 1226(c) is immediately entitled to a “Joseph hearing.” See, e.g., Demore v. Kim, 538 U.S. 510, 514 n.3 (2003) (“At the hearing, the detainee may avoid mandatory detention by demonstrating that he is not an alien, was not convicted of the predicate crime, or that the INS [Immigration and Naturalization Service, the predecessor of DHS] is otherwise substantially unlikely to establish that he is in fact subject to mandatory detention.” (internal citations omitted)). The “Joseph hearing,” a reference to In re Joseph, 22 I. & N. Dec. 799 (B.I.A. 1999), is now codified at 8 C.F.R. § 1003.19(d).

In Jennings v. Rodriguez, 138 S. Ct. 830 (2018), the U.S. Supreme Court held that § 1226(c) statutorily permits indefinite detention of noncitizens who are subject to mandatory detention while awaiting removal proceedings. In theory, this may pose a constitutional issue, but practically speaking, “indefinite” does not mean forever. A removal proceeding will eventually conclude; the noncitizen will be removed from the United States and no longer detained. Further, a detained noncitizen’s custody and bond may be redetermined on a discretionary basis. See INA § 236(e), 8 U.S.C. § 1226(e) (“The Attorney General’s [DHS’/DOJ’s] discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision [of DHS/DOJ] under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.”)

What if a noncitizen, after an order of removal becomes final, refuses to leave?

A common scenario involves a (reputed) foreign national of Country A who is convicted of a crime of moral turpitude (e.g., embezzlement) and ordered to be removed. Country A refuses to repatriate him, contending that Country A has no record of such individual. The United States submits that the foreign national was born in Country B, as were his parents; he refuses to complete a passport application for Country B and files a habeas corpus petition in federal district court, seeking release from DHS custody. (Habeas corpus is Latin for “give me the [detained] body” and has been called “the great writ of liberty.”)  The court, finding that the foreign national is properly detained under the INA at section 236(a), 8 U.S.C. § 1231(a)(1)(C), declares the following:

Petitioner’s detention in this case is indefinite only because he refuses to cooperate with the Immigration and Naturalization Service’s (“INS”) efforts to remove him. In such a circumstance, Petitioner has no cause to complain …. Pelich v. INS, 329 F.3d 1057 (9th Cir. 2003).

… Compounding the dilemma is the fact that Pelich has provided the INS with conflicting information regarding his name, his parents’ names, his parents’ birthplaces and residences, his birthplace and his nationality. Id. at 1059.

No Documentation Exists

In contrast to noncitizens who seek to avoid removal by impeding the Government’s efforts to obtain travel documents for them (a common occurrence at the conclusion of removal proceedings), § 1231(a)(1)(C) is inapplicable if a noncitizen cannot assist the Government in obtaining travel documents because such documents do not exist:

According to Moro, he cannot obtain documentation of his identity because of his status as a Romani. Consequently, at this stage the court cannot find that § 1231(a)(1)(C) applies to defeat Moro’s claim that his continued detention is improper. Moro v. INS, 58 F. Supp. 2d 854, 858 (N.D. Ill. 1999).

In the Moro case, the continued detention of the noncitizen was found improper—but not his removability for violating the immigration laws (two property crime convictions, which made him removable as having committed multiple crimes). The court reserved the issue of whether the noncitizen had exhausted administrative remedies. That is to say, the regulations provide administrative review of the legality of his confinement, in any event.

The “Removal Period” Under INA Section 241

When an order of removal becomes final, DHS must detain the noncitizen and remove him within ninety days (“the removal period”), pursuant to INA § 241(a)(1)(A), 8 U.S.C. § 1231(a)(1)(A). The removal period may be extended “if the alien fails or refuses to make timely application in good faith for travel or other documents necessary to the alien’s departure or conspires or acts to prevent the alien’s removal subject to an order of removal.” INA § 241(a)(1)(C), 8 U.S.C. § 1231(a)(1)(C).

After the removal period expires (beyond any extensions, as aforementioned), the U.S. Supreme Court emphasized in Arteaga-Martinez that

[T]he Government “may” detain only four categories of people: (1) those who are “inadmissible” on certain specified grounds; (2) those who are “removable” on certain specified grounds; (3) those it determines “to be a risk to the community”; and (4) those it determines to be “unlikely to comply with the order of removal.” [8 U.S.C.] §1231(a)(6). Individuals released after the removal period remain subject to terms of supervision. Ibid.

Arteaga-Martinez, 2022 U.S. LEXIS 2836, at *9-10 (2022).

Post-Removal Period of INA Section 241

An earlier U.S. Supreme Court case, Zadvydas v. Davis, 533 U.S. 678 (2001), emphasizes that INA § 241(a)(6), 8 U.S.C. § 1231(a)(6)

“does not permit indefinite detention” but instead “limits an alien’s post-removal-period detention to a period reasonably necessary to bring about that alien’s removal from the United States.” Id., at 689.

Zadvydas held that if “there is no significant likelihood of removal in the reasonably foreseeable future,” id. at 701, because of hindrances to repatriation, “the Government must respond with evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of prior post-removal confinement grows, what counts as the ‘reasonably foreseeable future’ conversely would have to shrink.” Id.

In Zadvydas, two noncitizens (Zadvydas and Ma, whose cases were consolidated at the U.S. Supreme Court) were detained for an extended period after removal proceedings. Zadvydas had a personal connection to three nations, all of which refused to accept him; he had a pending re-application for admission to the country of his parents’ citizenship at the time of the Supreme Court case. Ma could not return to his country of origin for lack of a repatriation treaty with the United States.

Arteaga-Martinez was decided on June 13, 2022. In the proceedings below in the U.S. Court of Appeals for the Ninth Circuit, the noncitizen had convinced the court that detention beyond six months pursuant to § 1231(a)(6) required a bond hearing in Immigration Court, during which the Government had to show, by clear and convincing evidence, that the noncitizen posed a risk of flight or danger to the community. The U.S. Supreme Court reversed, finding that “the detailed procedural requirements imposed by the Court of Appeals below reach substantially beyond the limitation on detention authority recognized in Zadvydas.” Id. at *15.

The two noncitizens in Zadvydas had extensive criminal histories, including multiple felony convictions (attempted burglary, attempted robbery, and possession with intent to distribute, for Zadvydas; gang-related shooting, for Ma). In mitigation, both averred humble beginnings; Zadvydas was born in a displaced persons camp in Europe, and Ma was a refugee from Southeast Asia. Both had come to the United States as children along with family members.

In contrast, Arteaga-Martinez was a citizen of Mexico with no criminal history, but he had entered the United States unlawfully four separate times. One stint in the U.S. lasted ten years; on a return trip to Mexico to care for his sick mother, he was violently beaten by a criminal street gang and asserted fear of beating and torture if removed to Mexico. An asylum officer at DHS found his fear of persecution to be credible, and he was detained while seeking withholding of removal in Immigration Court. A federal district court adopted a magistrate’s recommendation to grant habeas relief and a bond hearing on remand, at which an Immigration Judge found him to be a low risk of flight and non-dangerous. All told, he was detained for about six months.

What level of bond review is constitutionally required if prolonged detention occurs under § 1231(a)(6)? The Supreme Court declined to say in Arteaga-Martinez because the lower courts did not bother to reach the question:

The Government responds that regulations directing ICE officials to conduct administrative custody reviews for individuals in ICE detention provide adequate process, “at least as a general matter.” Brief for Petitioners 18-19. The Government contends that these regulations—which generally require a custody review at the end of the 90-day removal period, a second review by a panel at ICE headquarters after six months of detention, and subsequent annual reviews—provide constitutionally sufficient substantive and procedural protections for noncitizens whose detention is prolonged. Id., at 18. The Government also notes that as-applied constitutional challenges remain available to address “exceptional” cases. Id., at 21.

[W]e are a court of review, not of first view. Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). The courts below did not reach Arteaga-Martinez’s constitutional claims because they agreed with him that the statute required a bond hearing. We leave them for the lower courts to consider in the first instance. See Jennings v. Rodriguez, 583 U. S., at ___, 138 S. Ct. 830, 851 (2018).

Arteaga-Martinez, 2022 U.S. LEXIS 2836, at *16-17.

Arteaga-Martinez had been deemed inadmissible at a port of entry and mandatorily detained as an “arriving alien” under INA § 235(b)(1)(B)(iii)(IV), 8 U.S.C. § 1225(b)(1)(B)(iii)(IV). Arriving aliens will be subject to expedited removal unless they express an intent to seek asylum or express a credible fear of persecution. Procedural safeguards exist to review an asylum officer’s determination of the credible fear assertion, which must include a written record with a summary of the material facts as stated by the applicant, additional facts (if any) relied upon by the officer, and the officer’s analysis. Upon request, an Immigration Judge conducts a review of the determination, within 24 hours if practicable but not more than seven days later, by telephonic or video connection, in which the Immigration Judge questions the applicant and provides an opportunity to be heard. The noncitizen must be informed of the scheduling of the asylum interview and can consult with legal counsel at no expense to the Government. INA § 235(b)(1)(B), 8 U.S.C. § 1225(b)(1)(B).

DISCLAIMER:  The opinions expressed herein are for informational purposes only and might not be applicable to your case or circumstances. If you need legal advice about a specific matter, consult an attorney.