Ninth Circuit Holds that Prolonged Detention of Immigrants Pursuing Motions to Reopen Must Be Reviewed by Immigration Judge

On March 7, 2011, the U.S. Court of Appeals for the Ninth Circuit ruled in Diouf v. Napolitano that an immigrant facing long-term detention pending resolution of their motions to reopen immigration proceedings is “entitled to release on bond unless the government establishes that he  is a flight risk of a danger to the community.”  In so holding, the appellate court reversed the district court’s denial of preliminary injunctive relief to the petitioner, a citizen of Senegal who was granted voluntary departure from the United States in 2003, after overstaying his student visa, but later sought to reopen proceedings and remain in the country as the spouse of an American citizen.

Diouf was represented by the ACLU, ACLU of Southern California, and Stanford Law School Immigrants’ Rights Clinic.  History of the litigation is available here.

The petitioner, Mr. Amadou Lamine Diouf, did not leave the country within the timeframe for voluntary departure specified by the immigration judge because he intended to move to reopen proceedings.  Before he moved to reopen or for an extension of the period for departure, he was detained by Immigration and Customs Enforcement in 2005.  After being detained, Diouf moved the immigration judge to reopen proceedings.  This motion was denied and the Board of Immigration Appeals affirmed.  Diouf appealed to the Ninth Circuit, which granted a stay of removal pending consideration of his petition for review of the BIA decision.

Diouf’s detention, from March 2005 onward, was subject to review on two occasions, pursuant to federal regulation (8 C.F.R. Section 241.4). In these reviews, Immigration and Customs Enforcement determined that he was a possible flight risk and continued detention was justified.

Diouf then filed a petition for writ of habeas corpus (28 U.S.C. Section 2241) before the U.S. district court, requesting a preliminary injunction for his immediate release on the grounds that his continued detention violated 8 U.S.C. 1226(a) and the Due Process Clause of the Fifth Amendment to the U.S. Constitution – or in the alternative, ordering an immigration judge to hold a hearing requiring the government to justify his detention.  In February 2007, the district court required a bond hearing before an immigration judge, who then determined that Diouf did not present a sufficient danger to the community or flight risk and ordered his release.

However, the Ninth Circuit vacated the preliminary injunction because both the district court had assumed that Diouf was held under 8 U.S.C. Section 1226(a) (decision on removal pending), when in fact he was being held under 8 U.S.C. 1231(a)(6) (inadmissible or criminal aliens). Additionally, the Circuit Court “held that Diouf’s detention was authorized by statute because, although it was prolonged, it was not indefinite”. Diouf v. Napolitano at 3158. The Circuit Court remanded for the district court to determine whether aliens held under Section 1231(a)(6) were also entitled to receive bond hearings and be released unless they were proven to be a danger to the community or a flight risk.  The district court answered in the negative and, on appeal, the Circuit Court reversed.

Under Supreme Court jurisprudence, notably Zadvydas v. Davis, 533 U.S. 678 (2001), detention of immigrants pending removal may be extended beyond the 90-day limit following the order of removal for a reasonable period of time where removal is foreseeable (e.g., the immigrant’s home country is willing to take him and there is no other legal barrier to his return); such detention may not be indefinite.

This decision will mean that the legality of continued detention will be determined by an immigration judge, rather than by Immigration and Customs Enforcement officials, and the burden will be on the government to prove that the individual is a danger to the community or is likely to flee if released.

The government had argued that immigrants like Diouf who are collaterally attacking their orders of removal through motions to reopen should be treated differently than those challenging a removal order through the ordinary (direct) appeals process.  The Ninth Circuit disagreed, finding that the liberty interest of the two groups is “comparable” and both channels serve to ensure that immigrants’ rights are not violated and to properly dispose of their claims.

The court also rejected the government’s contention that the regulations provide adequate safeguards of immigrants’ liberty interests, requiring judicial deference.  The court found that deference to the regulations governing review of prolonged detention was not due because:

The DHS regulations governing the 180-day review, however,  do raise serious constitutional concerns. When the 180-day review takes place, the alien has been detained for approximately six months and the review, if unfavorable to the alien, authorizes detention for an additional year. At this point, the alien’s continuing detention becomes prolonged. When the period of detention becomes prolonged,  “the private interest that will be affected by the official action,” is more substantial; greater procedural safeguards are therefore required. […] Thus, at the 180-day juncture, the DHS regulations are appropriate but not alone sufficient to address the serious constitutional concerns raised by continued detention. The regulations do not afford adequate procedural safeguardsbecause they do not provide for an in-person hearing, they place the burden on the alien rather than the government and they do not provide for a decision by a neutral arbiter such as an immigration judge.

Id. at 3170-71 (internal citations omitted).

In concluding its reasoning, the court stated:

Diouf’s own case illustrates why a hearing before animmigration judge is a basic safeguard for aliens facing prolonged detention under § 1231(a)(6). The government detained Diouf in March 2005. DHS conducted custody reviews under § 241.4 in July 2005 and July 2006. In both instances, DHS determined that Diouf should remain in custody pending removal because his “criminal history and lackof family support” suggested he might flee if released. In February 2007, however, an immigration judge determined that Diouf was  not a flight risk and released him on bond. If the district court had not ordered the bond hearing on due process grounds, Diouf might have remained in detention until thisday. To address these concerns, aliens who are denied release in their 180-day reviews must be afforded the opportunity to challenge their continued detention in a hearing before an immigration judge.

Id. at 3172.  Diouf’s motion to reopen removal proceedings is still pending review.

Human Rights Day 2010 – Focus on Human Rights Defenders

Today, the international community celebrates Human Rights Day 2010.  The United Nations festivities will focus on human rights defenders and ending discrimination, as detailed in UN High Commissioner for Human Rights Navi Pillay’s message.

Worldwide, the 60th annual commemoration of the signing of the Universal Declaration of Human Rights, adopted by the UN General Assembly 62 years ago today, focused particular attention on two activists: detained Nobel Peace Laureate Liu Xiaobo and detained WikiLeaks founder Julian Assange.  The Nobel Peace Prize Award Ceremony took place in Oslo today without the presence of Liu Xiaobo or his family members; instead, an empty chair marked his absence and reminded those in attendance that the laureate sits in prison, having been sentenced to 11 years’ imprisonment for his role in the publication of Charter ’08, a call for peaceful democratic reform in China published two years ago today.

Similarly, while WikiLeaks‘ release of U.S. government documents providing confidential details on the wars in Afghanistan and Iraq and U.S. diplomacy prompted government efforts to shut off WikiLeaks’ funding and online presence, WikiLeaks  supporters demonstrated their opposition to such efforts and to Assange’s arrest in London this week.

Read Amnesty International’s profile of Liu Xiaobo here, and The New Yorker profile of Julian Assange here.

A brief history of the drafting and adoption of the UDHR can be found here.  For an animated depiction of the Declaration’s provisions, see Amnesty International‘s 1988 film.

For information on the state of human rights guarantees around the world, visit the Human Rights Conditions page.

Private Prison Industry Played A Heavy Hand in Arizona Immigration Law, NPR Reports

NPR reports that controversial Arizona immigration law S.B. 1070 was drafted and lobbied for in significant part by the private prison industry, through conservative organization the American Legislative Exchange Council, which brings together members of industry and politicians, including Corrections Corporation of America (CCA) and Arizona State Sen. Russell Pearce. [Salt Lake City Weekly]  CCA, the country’s largest private prison company, participated in discussions of the idea behind the eventual bill from an early stage, and stood to benefit from future contracts to build or run immigration detention centers under the new law, which – if contested provisions are upheld at the end of an ongoing constitutional challenge – would allow local law enforcement to conduct warrantless arrests of individuals suspected of being undocumented aliens.  In addition, CCA and other private prison companies donated heavily to Arizona legislators who supported the bill and CCA reportedly has close ties to Arizona Governor Jan Brewer’s administration. [Salt Lake City Weekly]

CCA, which operates more than half the immigration detention centers in the country, has been criticized for its employment practices and conditions of detention, and has been on the receiving end of numerous civil rights complaints by prisoners and other litigation, including a class action suit filed in 2000 to enjoin CCA’s alleged practice of colluding with telephone companies to increase the cost to inmates to make phone calls, with financial gain going to CCA. [Tucscon Citizen; CCR; Mother Jones].

A constitutional challenge brought by the Federal government against enforcement of the Arizona law is pending before the Ninth Circuit Court of Appeals, which heard oral arguments this week on Arizona’s appeal of the District Court’s injunction against several provisions of the law.  The Arizona Republic reported that the judges seemed inclined to rule in favor of Arizona on some provisions, but in the Federal government’s favor on others.

The growth of the private prison industry has come under intense scrutiny in several contexts, including immigration detention and the Iraq war.  In response to the Arizona story, the California Correctional Peace Officers Association warned on Election Day yesterday that voters “should be just as worried about the things they don’t see – the unknown forces influencing decisions at all levels of government.”

Relatedly, the Latin America News Dispatch reports that deportations of undocumented immigrants with criminal convictions are at a record high in the United States and have increased 70% under the Obama Administration, due in large part to the Secure Communities program, through which local law enforcement provides biometric data to federal immigration authorities to determine the immigration and criminal backgrounds of individuals arrested by local authorities, with a view to increasing deportation of removable aliens convicted of violent or drug-related offenses.  However, the program has been criticized as encouraging racial profiling, distracting local law enforcement from their primary duties, and accelerating deportations  – including of thousands of migrants arrested for petty offenses such as traffic violations who have no prior criminal history – without waiting for legislative overhaul of immigration law. [ACLU; NYT]  Last week, the National Day Laborer Organizing Network, Center for Constitutional Rights and Kathryn O. Greenberg Immigration Justice Clinic of Cardozo Law sought an injunction in federal court to require the federal immigration agency, ICE, to disclose information on how communities may opt-out of the Secure Communities program. [Florida Independent; CCR]  Janet Napolitano, Secretary of the Department of Homeland Security, has stated that opt-out is not available and all local law enforcement agencies must begin participating in the program by 2013.

For more information on immigration policy and immigrant detention in the United States, see the IACHR’s Special Rapporteurship on Migrant Workers and Their Families, the ACLU, Amnesty International, the National Network for Immigrant and Refugee Rights, the Migration Policy Institute, and the International Organization for Migration.

 

2010 in Review: IACHR Merits Reports

The Inter-American Commission on Human Rights has published two merits reports so far this year, having to do with deportation of non-citizens without consideration for humanitarian factors (against the United States) and impunity in the death of a journalist (against Brazil).  In addition to the two merits reports, the Inter-American Commission on Human Rights has published thirty-six favorable admissibility decisions, seven inadmissibility decisions, two friendly settlement reports, and thirty-seven decisions to archive petitions with unresponsive petitioners or in which the grounds of the petition no longer subsist.  The seven members of the Commission meet three times per year to review and decide upon admissibility and merits reports prepared by the attorneys of the Executive Secretariat, meet with petitioners, and discuss internal procedures; at two such sessions, the commissioners hold hearings on cases and on issues of concern.  The decisions published in 2010 were adopted at the Commission’s 138^th Period of Sessions held in March.  The Commission can be expected to publish additional reports this year, which it  may have adopted at its summer or fall sessions.

WAYNE SMITH, HUGO ARMENDARIZ, ET AL. V. UNITED STATES

In Wayne Smith, Hugo Armendariz, et al v. United States (mentioned previously on this blog here), the Commission concluded that “the United States violated Wayne Smith and Hugo Armendariz’s rights under Articles V [private and family life], VI [family], VII [protection for mothers and children], XVIII [fair trial], and XXVI [due process] of the American Declaration, by failing to provide an individualized balancing test in their removal proceedings”. IACHR, Report No. 81/10, Case 12.562, Wayne Smith, Hugo Armendariz, et al. v. United States, 12 July 2010, par. 66. The petitioners in the case were the Center for Justice and International Law (CEJIL), immigration law firm Gibbs Houston Pauw, and the Center for Global Justice.  In 2006, the Commission published its admissibility decisions in the separate petitions presented on behalf of the two men, and decided to consolidate their cases.

Jeffrey Landrigan Executed in Contravention of IACHR Recommendations

Jeffrey Timothy Landrigan was executed by lethal injection late last night in Arizona following the U.S. Supreme Court’s order yesterday, allowing the execution to proceed despite the unknown origin of one of the drugs, sodium thiopental, to be used by Arizona. [Arizona Republic]  The unnamed British drug manufacturer had not received approval from U.S. regulatory agency the Food and Drug Administration for its version of the drug, as would generally be required to broadly market it in the United States.  [National Post] In a 5-4 decision in favor of vacating the Arizona District Court’s stay of execution (temporary restraining order), a majority of the U.S. Supreme Court justices held that the plaintiffs were required to provide “evidence that the use of the drug is ‘sure or very likely to cause serious illness and needless suffering’” and had not met their burden.  Mere speculation on the part of the District Court judge that use of a non-FDA approved drug could cause pain and suffering was insufficient.  Justices Ginsburg, Breyer, Sotomayor and Kagan favored denying the application to vacate the stay.  Reprieve founder Clive Stafford Smith wrote yesterday in the Guardian that the British company supplying the sodium thiopental “should be named and shamed”.

The execution was carried out in contravention of the precautionary measures and merits report issued by the Inter-American Commission on Human Rights last week, which requested that the U.S. not execute Landrigan at least until he had been provided an opportunity to present evidence of mitigating factors and another sentencing hearing, in line with the U.S. Supreme Court’s 2002 decision in Ring v. Arizona which established that the state sentencing scheme requiring judges, rather than juries, to find aggravating circumstances and establish the corresponding penalty was unconstitutional.  The IACHR determined that the Supreme Court’s subsequent decision not to apply Ring to cases that had already gone through appeal violated Landrigan’s due process and equal protection rights.  As IACHR President Felipe González pointed out at last week’s press conference announcing the decisions, several States in the Western Hemisphere have federal systems, but are nonetheless responsible for ensuring compliance with the Commission’s decisions at all levels of government.  The United States’ continued argument that it cannot force individual states to comply with the federal government’s international obligations has time and again attracted condemnation from international tribunals, particularly in death penalty cases.  There was no public comment from the U.S. State Department on the Landrigan case, although the Commission itself forwarded its decisions to Arizona authorities. [IACHR]

Former Arizona trial judge, Cheryl Hendrix, who sentenced Landrigan to death in 1990 has since advocated commutation of his sentence in favor of life imprisonment, saying she had no choice but to impose the death penalty in the absence of evidence of mitigating circumstances.  Judge Hendrix said she would have sentenced Landrigan to life had she been presented with such evidence, including Landrigan’s history of mental illness, the brain damage caused by his mother’s alcohol use while pregnant, troubled childhood and a family history of violence. [Boston Herald]  For his part, Landrigan has argued that, had he fully understood the implications, he would have allowed such evidence to be presented.  Amnesty International recently issued an Urgent Action appeal highlighting Judge Hendrix’ comments and the importance of the mitigating circumstances in Landrigan’s case.

Landrigan’s case also involves allegations of innocence, based on DNA evidence showing someone other than Landrigan was at the crime scene, which Landrigan argued excluded him as the actual killer or a major participant in the murder. [Boston Herald]  Those claims were heard by the Arizona Supreme Court and the U.S. Court of Appeals for the Ninth Circuit.  Yesterday, the Ninth Circuit denied Landrigan’s request for a stay of execution, finding that the new DNA test results tending to show that someone else was present at the crime scene did not support the prima facie showing required by the Antiterrorism and Effective Death Penalty Act of 1996 that new facts which could not have been discovered earlier exercising due diligence “if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense”. 28 U.S.C. § 2244(b)(2)(B)(i) and (ii).

In its May 2007 judgment in Schriro v. Landrigan, a 6-3 majority of the U.S. Supreme Court reversed a Ninth Circuit decision, and held that the District Court had not abused its discretion in refusing to grant Landrigan an evidentiary hearing in his post-conviction federal habeas petition alleging ineffective assistance of counsel for failure to investigate mitigating circumstances.  The Court found that Landrigan had specifically instructed his defense counsel not to present mitigating evidence at sentencing and, therefore, the state court was entitled to conclude that Landrigan would not have allowed any mitigating evidence to be presented, regardless of its nature; accordingly, he would be unable to demonstrate that his counsel’s actions prejudiced the outcome of the sentencing hearing and was therefore not entitled to an evidentiary hearing.