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Excerpt: Bridget Kessler,
in Jail, No Notice, No Hearing . . . No Problem? A Closer Look at
Immigration Detention and the Due Process Standards of the
International Covenant on Civil and Political Rights, 24 American
University International Law Review 571 (2009) (187 Footnotes)
Carla is a young woman from Peru who has lived in the United States
for about six years. When Immigration and Customs Enforcement
(“ICE”) assumed custody of her on March 27, 2008, she had a
one-year-old son and was seven months pregnant with her second
child. She was also engaged to a U.S. citizen. The couple wanted to
get married, but could not work out the logistics because Carla was
being held in immigration detention.
Carla's lawyer promptly filed a bond motion before the Immigration
Judge (“IJ”) petitioning for her release while her case was pending.
The IJ refused to hear the motion; he claimed that he would not have
jurisdiction over her case until the Department of Homeland Security
(“DHS”) issued a Notice to Appear (“NTA”). NTAs are the documents
that formally put noncitizens in removal proceedings and state the
charges against them. NTAs also serve as the basis for Immigration
Court jurisdiction.
Carla's attorney called and faxed DHS several times a week
requesting an NTA for his client. He explained that Carla was in a
difficult position; she was seven months pregnant and had a toddler
son to care for. Nevertheless, after one month, DHS had not
responded or issued an NTA. Carla missed her son's first birthday
and she was still in jail. Frustrated, Carla's lawyer contacted the
Office of Inspector General (“OIG”). He also began copying a
representative of the House Oversight Committee for ICE detainees on
all his communications with DHS. For weeks he received no response
to his queries. Finally, with no explanation, DHS issued an NTA and
released Carla on May 16, 2008--almost two months after first taking
her into custody. DHS told Carla then that she could live with her
family while waiting for her Immigration Court hearing on February
5, 2009. Carla's experience raises many questions. Why was she held
for so long without receiving notice of the charges against her? Why
was she not given access to judicial review of her detention? What
is the legal framework in place that permitted these types of
delays?
Under international law, a state cannot deprive individuals of
personal liberty without meeting basic standards of due process. The
International Covenant on Civil and Political Rights (“ICCPR”)
requires the United States to guarantee that an arrested individual
receive “prompt” notice of the charges against him or her and have
the right to challenge the legality of the detention “without
delay.” The problem for Carla is that although she has a right to an
NTA eventually, the law does not establish a timeframe within which
DHS must issue one. The custody procedures regulation states only
that DHS must decide within forty-eight hours of assuming custody
whether it will issue an NTA. The regulation does not, however,
specify when DHS must issue the NTA or serve it on the detained
individual or the Immigration Court. Since the former Immigration
and Naturalization Service (“INS”) amended the custody procedures
regulation several days after the 9/11 attacks, scholars and
advocates have advanced strong arguments that it violates both
domestic and international standards of due process. In spite of the
harsh criticism, the custody procedures regulation remains in force
today and influences the lives of the hundreds of thousands of
people, like Carla, who pass through immigration detention each
year.
This Comment focuses on whether the custody procedures regulation
accords with the basic principles of due process of Article 9 of the
ICCPR. Part I.A discusses the history of the ICCPR and relevant
Article 9 jurisprudence. Part I.B provides an overview of custody
procedures in immigration detention. Part II argues that the
regulation governing custody procedures is inconsistent with due
process standards set forth in Article 9 of the ICCPR. Part III
recommends several actions that the DHS and Congress should take to
bring the custody procedures regulation into conformity with Article
9 of the ICCPR.
I. BACKGROUND
A. The International Covenant on Civil and Political Rights and the
United States
On December 10, 1948, the United Nations drafted the Universal
Declaration of Human Rights, which codified the minimum standards
for the protection of human rights in the world. Soon thereafter,
the Human Rights Commission composed two binding treaties to
memorialize the non-binding principles of the Universal Declaration.
The first, the ICCPR, embodied the more “classic” civil and
political rights, such as the rights to life, a fair trial, and an
effective remedy. The ICCPR protects these rights for “all members
of the human family,” regardless of their immigration status.
The United States became a party to the ICCPR in 1992. Upon
ratification, however, the U.S. Senate issued “Reservations,
Understandings and Declarations” that limited and modified the
application of certain provisions of the treaty. The Senate also
determined that the ICCPR is not self-executing and creates no
private cause of action in U.S. courts. In spite of its
non-self-executing status, the ICCPR is a binding treaty obligation
and requires the United States to adopt measures to protect the
rights it enumerates. Article 2 is the “umbrella provision” that
requires State parties to provide a remedy for the violation of any
of the rights guaranteed by the ICCPR.
Although the State parties are the primary guarantors of the rights
enumerated in the ICCPR, the Human Rights Committee (“Committee”)
also monitors compliance through review of country reports, country
visits, and the adjudication of individual claims. The decisions of
the Committee are not binding on State parties, but qualify as
highly persuasive authority. The United States does not recognize
the competence of the Committee to accept individual complaints. It
does, however, submit yearly reports to the Committee as mandated by
Article 40 of the ICCPR. The decisions of the Committee are
therefore relevant to the interpretation and application of the
ICCPR in the United States.
The Committee is not the only international body that contributes to
ICCPR jurisprudence. In 1991, the U.N. Commission on Human Rights
created the Working Group on Arbitrary Detention (“Working Group”)
to investigate cases of arbitrary detention in violation of
international human rights instruments. The Working Group's mandate
is broad and encompasses both criminal and administrative detention.
Since its jurisdiction is not treaty-based like the Committee, the
Working Group accepts individual complaints against the United
States.
. . .
In order to comply with basic international standards of due process
and guard against violations of Article 9 of the ICCPR, DHS should
amend the ambiguous language of the regulation. This comment
enumerates five changes that promote compliance with Article 9 of
the ICCPR.
A. DHS Should Amend the Regulation to Require Service of the NTA on
the Individual and the Immigration Court Within Forty-Eight Hours of
Arrest
Currently, the regulation only requires that DHS make “a charging
determination” within the forty-eight-hour period. The regulation
should require that DHS both issue and serve the NTA on the detainee
within forty-eight hours of arrest. This change to a forty-eight
hour requirement would ensure that custody procedures comport with
the “prompt notice” standard of the ICCPR.
The regulation should also require that DHS serve the NTA on the
Immigration Court within forty-eight hours of the arrest. A
requirement of service on the Immigration Court would ensure that
the alien has access to judicial review promptly after service of
the NTA in accordance with Article 9(4) of the ICCPR, which gives
individuals the right to judicial review of the detention “without
delay.” This revision prevents immigrants from languishing in
detention for weeks or months awaiting consideration of a bond
motion or the scheduling of a court date because DHS has not served
the NTA on the Immigration Court.
B. DHS Should Amend the Regulation to Include an Unambiguous
Definition of “Extraordinary Circumstances” and “Reasonable Time”
Given legitimate national security concerns, the “extraordinary
circumstances” exception written in response to the September 11
attack could be maintained. DHS should, however, clarify the
language. The regulation should provide a more specific definition
of “extraordinary circumstance,” for example stating that the term
indicates a war or a large-scale attack on the territorial United
States. The regulation should also indicate that the custody
procedures of the Patriot Act apply to all suspected terrorists. The
“reasonable time” limit is too open-ended and should be amended as
well. The regulation should state: “a reasonable time, not to exceed
one week.” The seven day limit makes sense because it matches the
requirements of the Patriot Act. The consistency ensures that the
government will not use administrative immigration detention for
criminal law enforcement purposes to take advantage of the
“reasonable period of time” exception to detain individuals while
law enforcement officials gather additional evidence. In the wake of
a national emergency, the seven-day limit might also lessen
criticism that the United States engages in racial profiling and
commits egregious due process violations. This could prevent
protests echoing those that took place when the government, pursuant
to the amended regulation, held the 9/11 detainees in custody
without charges.
C. DHS Should Add a Provision Specifying That in the Event of a
Detention Exceeding Forty-Eight Hours Without Service of the NTA,
the Individual Shall Have the Right to Petition the Immigration
Judge for Release
The regulation should add the following language: “in the event of a
time period exceeding forty-eight hours, the alien shall have the
right to petition an Immigration Judge for and be granted release on
his own recognizance, unless ICE can demonstrate that he is a flight
risk or a threat.” Such a provision would ensure that immigration
detainees have both the right to judicial review and release
required by Article 9(4) of the ICCPR. Moreover, a provision
creating an explicit right for an immigrant to petition for release
would give DHS an incentive to streamline the immigration detention
process.
D. DHS Should Amend the Regulation to Impose a Reporting Requirement
on DHS to Facilitate Oversight
The regulation should impose a reporting requirement on DHS because
it is currently impossible to ascertain whether DHS comports with
its own forty-eight-hour deadline. The regulation should require
that DHS record and report the period of time between the initial
arrest, the charging determination, and service of the NTA on the
immigrant and on the Immigration Court. This change would both
incentivize respect for the due process rights of immigrants in
detention and facilitate effective government oversight.
. . .
The unilateral amendment of DHS's custody procedures regulation
reflects post-9/11 national security panic rather than a reasoned
effort to improve the efficiency and fairness of immigration
detention procedures. The custody procedures regulation permits
arbitrary and indefinite detention in violation of international
standards of due process enshrined in Article 9 of the ICCPR. With
the benefit of hindsight, this comment urges DHS and Congress to
take action to bring the U.S. immigration detention custody
procedures into compliance with Article 9 of the ICCPR.
. J.D. Candidate, 2009, American University, Washington College of
Law; B.A., cum laude, History, Vassar College, 2005. |
