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Vernellia R. Randall
Professor of Law
The University of Dayton





Bridget Kessler


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.


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.


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