Habeas Corpus

IntroFacts and Law

DEPARTMENT OF HOMELAND SECURITY BUDGET

• 2003 - 2019: $324 billion on enforcement

• Customs and Border Patrol: $5.9 billion in 2003 to $17.1 billion in 2019

• Immigration and Customs Enforcement (ICE): $3.3 billion in 2003 to $7.6 billion in 2019

Detention Overview

• March 2019: ICE detaining more than 50,000 people

• ICE has requested funding to detain 52,000 people

• About 160 detention centers in the country

• Facilities may also be run by private prison companies

Detention Has Consistently Grown• 1979

• Average Daily Population: 2,371• Average Length of Detention: 3 days

• 1989• Average Daily Population: 6,438• Average Length of Detention: 23 days

• 1999• Average Daily Population: 17,772• Length unknown

• 2009• Average Daily Population: 32,098• Average Length of Detention: 31 days

Detention in Minnesota and North Dakota

• ICE contracts with local jails in Minnesota & N. Dakota

• Carver County Jail, Chaska, Minnesota• Kandiyohi County Jail, Willmar, Minnesota• Sherburne County Jail, Elk River, Minnesota• Freeborn County Jail, Albert Lea, Minnesota• Nobles County Jail, Worthington, Minnesota• Grand Forks County Jail, Grand Forks, North Dakota

Map of Detention Facilities

Minnesota/Dakota Detention Numbers Population

• Minnesota Average Daily Population: > 400• Sherburne: 307• Nobles: 2• Freeborn: 70• Carver: 21• No info on Kandiyohi

ICE Seeks to Expand Detention Space in Minnesota

• Sherburne expansion – 500 beds for ICE

• Appleton, Minnesota – Former Prairie Correctional Facility –1,600 beds for ICE

Statutory Authority for Detention

• 8 U.S.C. § 1231(a) / INA § 241(a): detention after ordered removed

• 8 U.S.C. § 1226(c) / INA § 236(c): mandatory detention

• 8 U.S.C. § 1226(a) / INA § 236(a): discretionary detention

• 8 U.S.C. § 1225(b) / INA § 225(b): detention of arriving immigrants

INA 236(a) and Bond• Minimum bond: $1500

• Not required to take into account ability to pay

• Person in detention must demonstrate • that they are not a flight risk; and • that they are not a danger to the community

Mandatory Detention – 236(c)• Grounds for mandatory detention for LPRs in the

US, those lawfully admitted, and overstays:

• (2) CIMTs at any time after your admission in the US;

• An aggravated felony;

• A controlled substance offense;

• A firearms offense.

Mandatory Detention Cont.• Grounds for mandatory detention for LPRs

returning from a trip abroad, EWIs, or those seeking admission:

• (1) CIMT – which may be waived under the petty offense exception;

• Controlled substance offense;• Drug trafficking offense *• Two or more offenses with aggregate sentence of 5

years incarceration;• Prostitution;• Domestic violence or violation of a protection order *

Impact of Mandatory Detention

• Difficult to find a lawyer• Difficult to obtain

evidence

• Difficult to obtain medical and psychiatric care

• Remain in jail longer• Loss of connection with

family

• The list goes on…

Result

■ People accept deportation orders

■ Record in immigration proceedings is underdeveloped

■ Strongest claims not pursued because of fear of people they are detained with

Habeas CorpusCaselaw

Zadvydas v. Davis, 533 U.S. 678 (2001)

• Post-removal order detention (8 U.S.C. § 1231)• Due process – “freedom from imprisonment . . . lies

at the heart of the liberty that Clause protects”• Detention must bear a “reasonable relation to the

purpose for which the individual was committed”• Primary purpose of detention under 8 U.S.C. §

1231: assuring presence at the moment of removal• In cases where ”removal is no longer reasonably

foreseeable, continued detention is no longer authorized by statute.”

Zadvydas (continued)• Canon of constitutional avoidance – serious DP

concerns raised by potentially indefinite/permanent detention

• Burden shifting scheme: • (1)individual must provide “good reason to believe that

there is no significant likelihood of removal in the reasonably foreseeable future”;

• (2) government “must furnish evidence sufficient to rebut that showing”

Zadvydas (continued)

• Six months – “presumptively reasonable period of detention”

• Remedy: release (with conditions)

Demore v. Kim, 538 U.S. 510 (2003)• Facial challenge to mandatory pre-removal

order detention under 8 U.S.C. § 1226(c)

• Distinguished Zadvydas:

• (1) serves purposes of detention (greater focus on dangerousness)

• (2) limited period of time

Demore (continued)

• Reliance on statistics: 85% of cases completed in average of 47 days, while appeals average four months

• Justice Kennedy’s concurrence: an individual may be entitled to “an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified”

Jennings v. Rodriguez, 138 S.Ct. 830 (2018)

• Pre-removal order detention under 8 U.S.C. §§1225(b), 1226(a), 1226(c)

• Reviewed circuit court decisions applying an “implicit 6-month time limit” on detention without a bond hearing

• Rejected lower courts’ reliance on canon of constitutional avoidance

• Explicitly reserved judgment on constitutional arguments

Nielsen v. Preap, 139 S.Ct. 954 (2019)• Challenge to mandatory pre-removal order

detention under 8 U.S.C. § 1226(c) – “when released”

• Rejects lower courts’ reliance on canon of constitutional avoidance

• Did not address or resolve constitutional challenges• Potential factors for future as-applied challenges:

(1) length of time between release from criminal custody and ICE detention; (2) strong community ties; (3) likelihood of success in removal proceedings

Where do Jennings and Preap leave us?• As-applied constitutional challenges remain viable

• Generally requires noncitizens to file individual habeas petitions

• Courts look to reasonableness of detention

As applied factors in Minnesota

• 1. Length of detention to date;• 2. Likely duration of future detention;• 3. Detention conditions;• 4. Delays caused by detainee;• 5. Delays caused by government; and• 6 Likelihood proceedings will result in final order of

removal.

Results of Challenges to Prolonged Detention

• Successful challenges to prolonged pre-removal order detention under 8 U.S.C. §§ 1225 (see, e.g., Jamal A. v. Whitaker), 1226(a) (see, e.g., Carlos Enrique U.R. v. Sec’y of Homeland Sec.), and 1226(c) (see, e.g., Muse v. Sessions).

• Typical remedy: Bond hearing (without deciding burden of proof)

Other types of habeas challenges

• Judicial stay of removal (Carlos Enrique U.R.)

• Withholding-only proceedings (Guzman Chavez; Guerra)

• Prolonged post-removal order detention (Diouf; Guerrero-Sanchez)

Next Steps

Advocacy

Action Items:

• 1. Increase individual representation;

• 2. Pursue Impact litigation against unlawful detention

• 3. Expand community support and resources for release

Increasing Legal Representation• Habeas litigation partnership:• Binger Center for New Americans• American Civil Liberties Union of Minnesota• Immigrant Law Center of Minnesota• Robins Kaplan• Local immigration law firms

• 6 cases filed so far• 5 have resulted in release from ICE custody• 1 is pending

Impact Litigation

• Burden of proof at bond hearings

• Ability to pay – minimum bond necessary• Hernandez v. Sessions (9th Cir.)

• County immigration detention• Esparza v. Nobles County (Minn. Ct. App.)

Community Resources and Support• Minnesota Freedom Fund

• Conversations With Friends

• Recovery/supportive housing

• Jail responsibilities

• Begin preparing for bond

Judicial Responses• “In their rulings, Minnesota’s federal judges —

including those appointed by Republican presidents — are troubled by the long detentions, and are frequently ordering immigrants released.

• ‘People have rights,’ said Chief U.S. District Judge John Tunheim, ‘Detention for long periods of time without a finding by a judge that someone can’t be released on conditions is problematic.’”

• Brandon Stahl, “As Length of Immigrant Detentions Grows in Minnesota, so do Petitions for Relief,” Star Tribune (June 16, 2019), http://www.startribune.com/detained-immigrant-petitions-in-minnesota-reach-new-high/511295932/

Judicial Responses (continued)

• “First, the total length of Petitioner’s detention to date is staggeringly long, totaling 18 months.”

• Abshir H. A. v. Barr, No. 19-cv-1033 (PAM/TNL), 2019 WL 3719414 (D. Minn. Aug. 7, 2019)

Habeas Means Freedom

• “I’m SUPER EXCITED crying in happy tears!!!!! Thank you guys for all your hard work. Wouldn’t have been this way if it wasn’t for you guys. I’m BEYOND EXCITED for all of us to be happy and reunite again as A FAMILY. And again thank you!!!!!”

- Email from client’s wife

Habeas Means Freedom (cont.)

“In Judge Sarah Mazzie'scourtroom this week, cheers and applause broke out. It was unusual for immigration court.”“Abdi was released on his own recognizance, which is rare. He was free a few hours after the hearing.”Riham Feshir, “Somali Refugee Wins Right to Stay, At Least for Now,” MPR News (Feb. 7, 2019), https://www.mprnews.org/story/ 2019/02/07/somali-refugee-wins-right-to-stay