Realizing Liberty- The Use of International Human Rights Law to Realign Immigration Deterntion in the United States

Fordham International Law Journal, Dec 2013

By Denise Gilman, Published on 01/01/13

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https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2611&context=ilj

Realizing Liberty- The Use of International Human Rights Law to Realign Immigration Deterntion in the United States

FORDHAM INTERNATIONAL LAWJOURNAL Fordham International Law Journal Denise Gilman 0 0 University of Texas School of Law , USA Copyright c 2013 by the authors. Fordham International Law Journal is produced by The Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj - 2013 Article 1 By Denise Gilnan* Law ......... . .............. ,.......... ............. SClinical Professor of Law, University of Texas School of Law; J.D., Coluinbia Law School; B.A., Northwestern University. I am grateful for the comments I received on an earlier draft of this paper at the 2012 International Conference on Law and Society. I thank Barbara Hines, Ranjana Natarajan. and Anil Kalhan for their useful suggestions, Mark Fleming for his unique perspective, and Brittany Perkins for her research assistance. Finally, I thank Ariel Dulitzky for both his support and his ideas. B. Similarities Between the International Human Rights Standards and US Constitutional Standards on Civil Detention ....... C. The Use of the International Human Rights Standards to Interpret US Law........ ........ IV. INCOMPATIBILITIES BETWEEN THE IMMIGRATION DETENTION REGIME IN THE UNITED STATES AND THE INTERNATIONAL HUMAN RIGHTS STANDARDS .................................. 284 2. Reinstatement of Removal ....................................... 308 C. Detention of Arriving Aliens............. D. Mandatory Detention on Criminal and Terrorism Grounds . . ....... ................... .... E. Non-Mandatory CONCLUSION Detention.............. ................................ ....... 313 ....... 319 ....... 326 ..... 333 INTRODUCTION BM came to the United States from Nicaragua as a young child and became a lawful permanent resident in 1987.1 In August 2007, Immigration and Customs Enforcement ("ICE") detained BM and held him for more than a year during deportation proceedings.2 Prior to his detention, BM had lived 1. Brief for Petitioner at 3, BM v. Mukasey, 382 F. App'x. 417 (5th Cir. 2010) (No. 08-60586) [hereinafter BM Brief]. The cases of BM and FH presented here wvere both handled by the Immigration Clinic at the University of Texas School of Law. Our clients have given their permission to summarize their stories for this Artide but have preferred to preserve the confidentiality of their names. 2. Id. at 5. In the United States. proceedings initiated by Immigration and Customs Enforcement ("ICE") to deport or exclude an individual are technically referred to as "removal proceedings." See 8 U.S.C. § 1229a (2006) (providing for removal proceedings). This Article will use the layimen's term "deportation" intLerchangeably with the technical tern "removal." These proceedings take place before an immigration court and include consideration of an individual's removability as well as any applications for "relief from removal" that would grant the individual permission to remain in Lhe United States without regard to removability. See id.; see also, e.g:, 8 U.S.C. § 1158 (2006) (providing for asylum); 8 U.S.C. § 1229b (2006) 2013] in Austin, Texas and had worked for the state government. His entire immediate family lived in the United States, and his mother suffered from terminal cancer.4 Yet, ICE detained BM under immigration law's mandatory detention provisions while pursuing deportation based on two drug possession convictions.) ICE succeeded in deporting BM, but in 2010, the US Supreme Court overturned the line of cases that had prevented BM from applying to remain in the United States.b BM returned to the United States for additional immigration court hearings to decide his immigration status, and he eventually won the right to resume his life in this country. ICE detained BM for an additional three months during the renewed proceedings and for a period after BM received approval from the immigration court to remain in the United States as a lawful permanent resident.7 FH has lived a very different experience from BM but also faced immigration detention in the United States. FH fled his country of Eritrea by foot after the Eritrean military tortured him, including by tying his legs and arms together behind his back and hanging him from a tree in the infamous helicopter position.' FH presented himself at the US border on August 26, 2010 seeking asylum and was immediately detained. ICE held FH in immigration detention for more than a month, although he has a US citizen brother and other close family members who wished to host him during immigration court proceedings to decide his asylum claim."o In detaining him, ICE did not consider the fact that US immigration courts grant eighty-five percent of Eritrean asylum claims, which is not surprising since the US State Department reports that human rights abuses in Eritrea are rampant and Eritrean asylum seekers returned home are often "disappeared."" After release from detention, FH lived with his family in Austin, Texas, attended all immigration court proceedings, and received asylum in the immigration court in November 2011.'2 The United States detained 429,000 migrants like BM and FH during 2011, the last year for which definitive numbers are available.'- These 429,000 detainees were held during proceedings to determine whether they would be deported or allowed to remain in the United States and, in some cases, until physical deportation could take place.' 4 They were held in the custody of ICE, the federal entity within the Department of Homeland Security ("DHS") charged with enforcing the immigration laws.1 Detention of migrants has followed a significant and steady upward course over the last two decades as detention has expanded and become the presumptive norm in immigration cases.'" This trend has proceeded largely unchecked despite efforts at reform by advocates concerned with the humanitarian and financial impact of such a large-scale 2013] detention program that lacks cogent contours.1 7 The trend currently shows no sign of reversal." In the meantime, human rights bodies have overcome their traditional reluctance to adjudicate claims touching on central aspects of statehood and sovereignty and have developed meaningful international human rights law standards for assessing immigration detention practices. The newly-developed standards call into question many aspects of the current immigration detention system that leads to the widespread detention of asylum seekers and other migrants in the United States. '9 The international standards provide a helpful legal framework for considering immigration detention in the United States, particularly as they derive from binding international legal norms and have much in common with US law regarding civil detention in contexts not as contentious as immigration.20 17. See, e.g., A . BAR Assoc., RESOLUTION AN) REPORT ON ABA CTVII IMMIGRATION DETENTION STANDARDS AUGUST 2012 (2012); HUMAN RIGHTS FIRST, JAILS AND JLIMPSUITS: TRANSFORMING THE U.S. IMMIGRATION DLTLNTION SYSTEM-A TWO-YEAR RIEIEW (2011) [hereinafterJAILS AN) jUMPSUITS]; I UTHERAN IMMIGRATION & REFU GEE SERV., LUNLOCKING LIBERTY: A WAY FORWARD FOR 1.S. IMMIGRATION DETENTION POLICY (2011) [hercinafter UNLOCKING LIBERTY]: HUMAN RIGHTS FIRST, 1U.SI).ETENTION OF ASYLUN SEEKERS: SEEKING PROTECTION, FINDING PRISON (2009) [hereinafter U.S. DETENTION OF ASYLUM SEEKERS]; AMNESTY INT'I, JAILED WITHOUT Human rights law analysis should therefore spur positive changes to immigration detention in the United States that will bring rationality back to our system and protect liberty. While immigration detention has ballooned in the United States, the available scholarship includes few efforts to analyze the various components that interact to create such a massive detention system. There is even less scholarship available analyzing the new international human rights standards as applied to US immigration detention. In the late 1990s and early 2000s, some scholars analyzed the detention framework that evolved after Congress adopted restrictive immigration measures in 1996 that increased detention.21 However, that literature involved only a guess at what was to come and could not address the current reality of detention expanded beyond any expectation. Nor could that scholarship incorporate a human rights analysis, since the human rights standards developed with specificity only in recent years. Much more recently, scholars in the United States have begun to use human rights law to consider immigration detention, but they have done so mainly by analyzing discrete aspects of immigration detention in the United States.2 Meanwhile, international scholars have begun to evaluate immigration detention laws and policies from a human rights perspective.2" However, that work has not focused on the particularities of the US immigration detention system. This Article represents a first effort, then, to synthesize and present the recently-developed international human rights standards and apply those rules to the US immigration detention system in a systematic manner. In so doing, the Article demonstrates how the application of international human rights law standards can bring rationality and humanity to US immigration detention by revitalizing the right to liberty, which constitutes a core conception in both international human rights law and US law. The Article does not suggest that immigration detention in the United States should be abolished. It does urge realignment of US law in a way that would scale back immigration detention in order to bring the detention system and its components into line with international human rights norms and with the US tradition of liberty that treats civil detention as an exceptional situation. While many concerns exist regarding immigration detention conditions, including the harsh prison-like environment at many facilities, inadequate health care and the remote placement of facilities that impedes access to counsel and family visitation," I do not consider those issues in this Article.2 5 Instead, the Article focuses on the fact and extent of 23. See generall GALINA CORNELISSE, IMMIGRATION )ETENTION AN) HUMAN RIGHTS: RLTHIKING TERRITORIAL SOVEREIGNTY (2010) (considering the impact on sovereignty of immigration detention rules in Europe); )ANiFT. WILSHER, IMMIGRATION )ETENTION: LAW, -ITSTORY, POLITICS (2012) (describing evolution of detention and international law, particularly in Europe); Eleanor Accr & Jake Goodman, Reaffrming Rights: Human Rights Protections of Migrants,Asylum Seekers, and Refugees in Immigration Detention, 24 GEO. IMMIGR. L.j. 507 (2010) (urging changes to a proposed international instrument to improve implementation of human rights standards on immigration detention); Cathryn Costello, Human Rights and the Elusive Universal Subject: Immigration Detention Under International Human Rights and EULaw, 19 IND.J. GLOBAL LEGAL STUD. 257 (2012) (analyzing tensions between human rights and immigration detention in Europe). 24. See, e.g., Brand & Lundholn. supra note 22, at 158-63: U.S. DETENTION OF ASYLUM SEEKERS, supra note 17. at 17-30, 51-67; JAILLD WITHOLT JUSTICE, supranote 17, at 29-43. 25. One author has suggested that well-intentioned efforts to improve conditions in inmigration detention may lead to continued detention of large numbers of migrants by making immigration detention more acceptable. See MICHAEL FLYNN, GLOBAL DETENTION PROJECT, ON THE UNINTENDED CONSEQUENCES OF HLIMAN RIGHTS PROMOTION ON 1IilGRATION DETENTION (2012); see also Anil Klhan, Rethinking Immigration Detention, 110 COLUM. L REV. SIDEBAR 42, 58 (2010) (explaining that "it migrant detention, regardless of the conditions of the specific detention placement. The analysis does treat all US immigration detention as "hard" detention, implicating the full panoply of liberty concerns involved in civil detention. In other words, no adult immigration detention facilities in the United States allow free movement out of the facility or otherwise have conditions that call into question their classification as detention facilities.26 Nor does the Article explore the very real negative consequences of detention for migrants, because the deprivation of liberty itself must be understood as having a severe impact that demands justification, without a showing of further harm. If there were any doubt, however, the harm caused by detention has been well-documented. Among other impacts, studies show that detention leads to deterioration of the mental and physical health of detained migrants as well as their families.27 Additional studies show that migrants in detention are much less likely to obtain counsel and are much more likely to lose their immigration cases." may not be sufficient to focus exclusively on improving conditions of confinement" to address foundational problems with immigration detention). 26. See Michael Barajas, ICE'Sofl'Detention Statgy at Newlmmigration FacilityBegs the Question: Why do Lowest-Risk Detainees Need to be Detained at All? SAN AN ONTO CURRENT, Mar. 21, 2012 (quoting Gary Mead, Executive Associate Director of ICE Enforcement & Removal Operations, as recognizing that individuals at the newest "civil" detention facility are still "detained"). The facilities where unaccompanied minors are held, which are under thc jurisdiction of the U.S. Department of Health and Human Services, rather than ICE, present a softer form of custody. See 6 U.S.C. 279(a) (2006); WOMEN'S REFUGEE COMM'N, HALvAY HOME: UNACCOMPANTED CHILDREN IN IMMIGRATION CUSTODY 5-19 (2009) [hereinafter WRC, HALFWAY HOME]. In addition, for children, release and reunification wvith family members is emphasized over detention. See WRC, HALFWAY HOME, supra, at 8. For these reasons, this Article does not address the detention of children. 27. See Kalina Brabeck & Qingwen Xu, The Impact oj Detention and Deportation on Latino hnmigrantChildren and Families:A QuantitativeExploration.32 HISP.J. BEHAV. SC. 341, 345-46. 354-55 (2010) (documenting increased mental health difficulties of US citizens and other family members of migrants subject to detention and deportation); Allen S. Keller ct al., Mental Health of Detained Asylun Seekes, 362 LANCET 1721, 1722 (2003) (explaining that "detaining asylum seekers exaccrbates symptoms of depression, anxiety, and post-traumatic stress disorder"); Nina Bernstein, Docaments Reveal Earlier hnmigration Deaths, N.Y. TIMES (Jan. 9, 2010), www.nytiles.com/2010/01/10/ nyregion/10Odctainsidc.html. 28. See Symposium, Inn atieApproaches to Immigrt Representation:Exploring New Partnerships. 33 CAwOZO L. RLV. 357, 363-64 (2011) (explaining that detained migrants in removal proceedings in New York City went unrepresntcid at a rate of sixty percent, which is much higher than the rate for non-detained individuals, and 2013] Finally, this Article focuses on those individuals who are detained pending a decision as to whether they will be deported or will gain the ability to remain in the United States. Most detained migrants with a final decision ordering deportation, either through an abbreviated process or after full proceedings to adjudicate immigration status, are removed quite quickly. They therefore remain in detention for a short period of time pending execution of the deportation.29 US law already imposes time limits and procedural requirements on the detention of such migrants with a final removal order, although problems remain with the implementation of these rules.so The justification for detention of migrants after issuance of a removal order is also more obvious, including under international human rights standards., The US government has already decided that these migrants must leave the United States, and only physical removal remains. This group of detainees does not present the same considerations regarding the appropriateness of detention as those detainees with a pending decision in their cases. With these premises in mind, the Article first describes the current state of immigration detention in the United States in Part I. Part II then traces the recent unfolding of well-developed international human rights standards regarding immigration detention and sets out the human rights law framework for evaluating immigration detention. Part III proceeds to consider the relevance of the international standards in analyzing US immigration detention. It first explores the binding nature of the international human rights standards, at least as a question of international law. Next, it compares the international human additionally, unrepresented detained individuals have only a three percent success rate in achieving permission to remain in the United States); see also Andrew 1. Schoenholtz & Han1utal Bernstein, Improving ImmigrationAdjudications Through Competent Counsel, 21 GEO.J. LEGAL ETHICS 55, 55-56 (2008) (pointing out that detainees are more limited than non-detained migrants in obtaining counsel and representation is the "singic most important non-nicrit factor" detcrmining outcomes in inmigration proceedings). 29. See DORA SCHRTRO, U.S. DEP'T OF HOMELAND SEC., IMIIGRATION DETENTION OVLRVIW AND RLCOMMENDATIONS 6 (2009) [hereinafter SCHRIRO STUDY] (noting that average detention times are longer for individuals seeking relief as compared to those pursuing only voluntary removal); see also infra notes 42, 52 and accompanying text. 30. 8 U.S.C. § 1231 (2006); 8 C.F.R. § 241.4-5 (2012); Zadvydas v. Davis, 533 U.S. 678, 701 (2001); Clark v. Martinez, 543 U.S. 371. 373 (2005). 31. See infra notes 130-32 and accompanying text. rights framework to US law on civil detention in nonimmigration contexts, concluding that the standards are almost fully in line with one another. Given these similarities, as well as the importance of complying with international obligations, I conclude in this Part that the United States should realign the US immigration detention system so that it meets the international standards. Specifically, I propose that courts should intervene, where necessary, to protect liberty and due process by giving substance to the international standards through the interpretation of US statutory and constitutional provisions. Part IV engages in a detailed analysis of the US immigration detention system and its various components as measured against international human rights standards. Significant incompatibilities with international human rights law are identified, and this Part urges delimitation of US law to resolve these incompatibilities and curb the excesses of immigration detention in the United States. I. THE CURRENT STATE OFIMMIGRATION DETENTION The current immigration detention system sweeps hundreds of thousands of migrants into ICE custody each year., All are detained pending either adjudication of immigration status or deportation and are thus held in civil or administrative detention." These migrants include lawful permanent residents like BM who face deportation as a result of criminal convictions, asylum seekers like FH, undocumented migrants with long periods of residence in the United States, recent unlawful border-crossers seeking work, and individuals with final deportation orders waiting to be physically removed to their 32. See DHS IMNMIRATION ENFORCEMENT ACTIONS 2011, supra note 13. at 1 (reporting the detention of 429,000 migrants in 2011) ; DONALD KERWIN & SERENA YlYING LIN, MIGRATION POLR INST., IMMIGRANT DETENTION: CAN ICE MEET ITS LEGAL IMPERATIVES AND CASE MANAGEMENT RESPONSIBILITIES? 7 (2009) [hereinafter MPI STUDY] (illustrating this trend over the last decade). 33. See 8 U.S.C. 1226 (2006) (providing for detention "pending a decision on whether the alien is to be removed from the United States"): 8 U.S.C. 1231 (2006) (providing for detention after entry of a removal order); Morton Press Conference on Detention Reform, supra note 18 (acknowledging that ICE detention is "civil in naLtre"): SCHlRIRO STUDY, supra note 29, at 2, 4 (emphasizing that ICE detention is administrative and must be distinguished from criminal incarceration). countries.34 Migrants detained pending a decision constitute roughly sixty percent of all immigration detainees at any given moment.35 Rapid expansion has characterized the US immigration detention system for some time now. In the last decade, immigration detention has more than doubled from 209,000 immigration detainees in 200136 to 429,000 immigration detainees in 2011." The steady growth of detention becomes 34. See 8 U.S.C. 1226 (providing for detention during immigration proceedings); 8 U.S.C. § I182(a), 1227(a) (2006) (providing grounds of deportation that can lead to deportation proceedings, including grounds that affect undocumented individuals and grounds that affect lawful permanent residents and other individuals who lkgally entered the United States); 8 U.S.C. § 1225(a)(1) (2006) (providing for detention of asyltum seekers and others placed in expedited removal proceedings upon apprehension at or near the border); see generally jAILED WITHOUTJUSTICF, supranote 17; UNiLOCKING LIBERTY, supra note 17, at 5-6. 35. See MPI STUDY, supra note 32, at 16-17 (providing data supporting the conclusion that sixty-three percent of immigration detainees had pending cases, where pending cases are calculated as a percentage of the total number of cases for which information was available regarding pending or post-final order status). 36. Id. at 7. 37. DHS IMMIGRATION ENFORCEMENT ACTIONS 2011, supra note 13, at 1. The numbers have varied somewhat over the last few years while remaining at very high levels approaching the more than 400,000 detentions taking place in 2011. See id. (reporting that 429,000 migrants were detained in 2011); see also OFFICE OF IIilGRATION STATISTICS, U.S. DEP'T OF HOMELAND SEC., ANNUAL REPORTIMMIGRATION ENFORCEMENT ACTIONS: 2009, at 1 (Aug. 2010) [hereinafter DHS IMMIGRATION ENFORCEMENT ACTIONs 2009] (reporting that 383,000 migrants were detained in 2009; OFFICE OF IIMIGRATION STATISTICS, U.S. DEP'T OF HOMELAND SEC., ANN -AL REPORT-MMIGRATION ENFORCEMENT ACTIONS: 2010, at 1 (June 2011) [hereinafter DHS IMMIGRATION ENFORCEMENT ACTIONS 2010] (reporting that 363,000 migrants were detained in 2010). The fluctuations and the overall high rate of detention have little relation to unauthorized border crossing trends, since unlawlil crossings have been in steady decline in recent years. See OFFICE OF IMMIGRATION STATISTICS, U.S. DEP'T OF HOMLLAND SEC., APPREHENSIONS BY THE U.S. BORDER PATROL: 2005-20 10, at 1 (2011) (noting that apprehension statistics serve as a proxy for illegal entry into the United States and reporting that border apprehensions declined sixty-one percent between 2005 and 2010) ; U.S. BORDER PATROL NATIONWIDE ILLEGAL ALIEN APPREHENSIONS FITSCAL YEARS 1925-2011, at I ( 2011) (showing downward trend in border apprehensions between 2009 and 2011); )HS IMMIGRATION ENFORCEMENT ACTIONS 2011, supra note 13, at 3 (noting that apprehensions along the Southwest border decreased twenty-seven percent from 2010 to 2011); I)HS IMMIGRATION ENFORCEMENT ACTIONS 2009, supra, at 1 (showing that apprehensions at the border were trending downwards); see also Lourdes Medrano, Behind Decline in US-Iexico Border Crossings:Higher Risks, Lower Rewards, CHRISTIAN SCL MONITOR (I)ec. 14, 2011), http: /www.csmonior.coi/USA/2011/1214/Behind-decline-in-US-Mexico-bordercrossings-higher-risks-lower-rewards (reportmig recent low number of apprehensions along the US-Mexico border as a reflection of the lower number of illegal crossings). even more apparent if average daily population over the last two decades is considered. In 1994, immigration authorities held an average of 6,785 detainees a da." 8 By 2011, the average daily population had reached 33,330, an almost five-fold increase over a fifteen-year period.39 The expansion of immigration detention has been particularly dramatic in recent years. In 2005, there were 238,000 immigration detainees each year,4"1 but that number increased by almost 200,000 in just five years to the 2011 figure of 429,000.4' A significant number of those detained are summarily removed and thus remain in detention only for a very brief period of time. However, many others undergo lengthy immigration court proceedings to determine whether they may remain in the United States and may be detained for all or a significant portion of those proceedings. For example, during 2011, the US government deported more than 250,000 individuals through reinstatement of removal and expedited removal, which are expedited programs requiring only the most perfunctory adjudication by ICE in most cases.42 However, during that same time, ICE detained more than 125,000 migrants through full-fledged proceedings in immigration court? For 2011, the immigration courts reported that they completed proceedings in 128,745 cases involving detained immigrants.44 This number of more than 125,000 detainees pending a determination of status in immigration court proceedings is consistent with ICE statistics.45 Overall, forty-two percent of deportation cases completed in the immigration courts in 2011 involved detained immigrants, demonstrating the prevalence of detention during proceedings that will result in a determination regarding removability and immigration status.46 44. Id. The actual number of immigration court proceedings involving detained migrants in 2011 would be greater than that number, because the statistic relates only to cases in which the migrant was detained at completion of the immigration court case. Some cases last longer than one year, meaning that some migrants detained during 2011 would not appear in the statistics for that year, because their cases would not have been completed until a subsequent year. See Latest Immigration Court Numbers, as ofjanuary 2013, TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE (Feb. 6, 2013) , http://trac.syr.edu/iimmigration/reports/latcstinimmcourLt (reporting that, on average, pending cases have been awaiting conclusion for almost a year and a half); MPI STUDY, supra note 32, at 16, 19 (reporting on individuals who remained in detention for longer than a year pending a result in their deportation proceedings). Other inigrants held in detention during immigration court proceedings in 2011 would not appear in this statistic, because they would have been detained during some period of the proceedings but released before completion of the case. EOIR STATISTICAL YARBOOK 2011, supra note 43, at 12, H3 (providing information regarding individuals released on bond during immigration court proceedings); Detainees Leaving ICE Detentionfrom the Port Isabel Service Processing Cente. TRANSACTIONAL RLCORDS ACCLSS CLEARINGHOUSE (2010), http:/a/tra. sy.ediu/immigration/detention/200803/PIC/ exit [hereinafter Detainees Leaving ICE Detention] (reporting on immigration detainces released on bond during pending deportation proceedings). 45. ICE reports that it removed 392,000 immigrants in 2011. DHS IMMIGRATION ENFORCEMENT ACTIONS 2011, supra note 13, at 1. If the approximately 250,000 individuals who faced only suinmary removal proceedings are subtracted from those figures, 142,000 individuals remain. Id. Many of those 142,000 individuals would have faced detention and deportation in proceedings before the immigration courts. Some individuals removed were likely not detained at all or for the full pendency of the immigration court proceedings. On the other hand, the actual number of individuals in detention during proceedings before the immigration courts would also include those who were not removed at the end of proceedings. A number of those detained would have won the right to remain in the United States. Of the approximately 220,000 cases completed in immigration court in 2011, more than 55,000 (greater than twentyfive percent) resulted in relief or dismissal of the deportation proceedings. EOIR STATISTICAL YEARBOOK 2011, supra note 43, at D2. The estimate of more than 125,000 in detention pending a decision on deportability and status is therefore reliable and errs on the side of a more conservative estimate. 46. See EOIR STATTSTICAL YEARBOOK 2011, supra note 43, at 01. In a submission to the Inter-American Conission on Human Rights, the US government asserted that the "vast majority of aliens in immigration proceedings are not detained." Submission of the Government of the United States to the Inter-American Commission on Human Rights with Respect to the Draft Report on Immigration in the United States: Detention and Due Process. at 9, OEA/Ser.L/V/Ill, doc. 47 (Aug. 2, 2010), availableat http://cidh.org/pdi%20iles/ReportOnlmmigration.USG.Responsel 0. 15.2010).pdf Individuals who seek to remain in the United States generally remain in detention for three months or more, and it is not uncommon for individuals to stay in detention even longer, sometimes for more than a year.4 7 DHS's published statistics generally do not include information regarding the typical length of stay." When DHS does provide a figure, the agency usually asserts that the average length of time in detention is approximately thirty to thirty-five days.49 However, this figure does not disaggregate the detention data for those undergoing contested immigration proceedings to determine their ability to remain in the United States. 1 It thus includes those individuals awaiting the outcome of immigration court proceedings in the same figure with the large numbers of migrants who are deported by ICE under summary deportation orders or who leave voluntarily within a day or week of arrest.51 Consequently, DHS statistics represent a serious understatement of the length of detention experienced by most migrants, particularly those who challenge the grounds for their deportation or seek asylum or other relief from deportation and thus are entitled to proceedings to determine whether they will be allowed to stay in the United States. A closer look at the government's own figures reveals the reality that migrants who remain in detention during contested proceedings experience a much longer average length of detention. DHS has recognized that the length of time in detention varies significantly depending on whether the detainee fights deportation.52 For example, in a 2009 report to Congress, DHS acknowledged that the average length of detention for asylum seekers ranges from 48 days to 130 days, depending on the procedural stance of the asylum claim) At least fifteen percent and up to forty-eight percent of asylum seekers remained in detention for longer than 90 days.54 Similarly, an independent study looking at data regarding detention for a single snapshot day-January 25, 2009-found that ICE detained migrants for an average of at least eighty-one days.55 The study further found that ICE held ten percent of INIiG(RATION ENFORCEMENT ACTIONS 2011, supra note 13. at 1. Another 324,000 individuals returned home voluntarily or otherwvise without a formal removal order. Id. Some migrants involved in these summary proceedings would never have been officially detained but instead would have left the United States shortly after an initial encounter and apprehension by immigration authorities. See DHS IMMIGRATION ENFORCEMENT ACTIONs 2011, supra note 13, at 1 (noting that DHS apprehended 642,000 individuals in 2011 while ICE detained 429,000). However, many others would have been detained, although only for very short periods of time, and their inclusion in the data significantly affects the statistic for average detention length. See SCHRIRO STUDY, supra note 29, at 6. In contrast to the ICE statistics, the Department of Justice provides statistics that separate out pre-trial criminal detention for those held for fewer than four days. See US. Marshals Service Summar Case Processing Statistics: Fiscal Year 1994-2011, U.S. DEP'T OF JUSTICL, http://wwwjustice.gov/ofdt/s unnary.htL (last visited Feb. 13, 2013) . 52. See SCHRIRO STU TDYs,upra note 29, at 6. 53. See DHS & ICE, DLTENTION AND RLMOVAL OPERATIONS RLPORT: RLoUIRED BY SECTION 903 OF THF HAITIAN REFU GEE IMMIGRATION FAIRNFSS ACT 5 (2009). 54. See id.; see also DHS & IC, DETAINLD ASYLLM SLLKERS: FISCAL YLAR 2009 RLPORT TO CONGRLSS 8, 44 (2012) (reporting that up to twenty-five percent of asylum seekers remained in detention for longer than ninety days in 2010 and further noting that, during 2010, more than 100 asylum seekers remained in custody after a year of detention). 55. See MPI STUDY, supra note 32, at 16, 19. detainees in custody pending removal proceedings for longer than six months but less than a year, and held more than 500 individuals in detention for longer than a year awaiting final adjudication of their cases.56 Perversely, individuals with the opportunity to remain in the United States and with the greatest interest in doing so will remain in the custody of the US government for the longest period of time. A combination of legal, political, and financial considerations explains the current emphasis on detention in immigration cases. Much of the early upward tick in immigration detention resulted from the passage of legislation in 1996 that broadened the categories of individuals subject to detention, removal, and mandatory detention. 7 But, that legislation does not explain the particularly rapid growth of detention after 2005. Instead, recent growth in detention levels corresponds to political trends that have advanced "get-tough" stances towards crime, border control, and immigration.58 Thus, in the wake of Congress' adoption of the REAL ID Act,59 connecting immigration with national security and criminal concerns, and the introduction of additional legislationNo proposing a harsh immigration crackdown, then-Secretary of Homeland Security Michael Chertoff announced new detention policies in the fall 56. See id.: see also ACLU. ISSUL BRIEF UPDATL: PROLONGLD IMMIGRATION DETENTION OF INDIVTDUALS WHO ARE CHALLENGING REMOVAL 9 (2011) (noting that on November 1. 2010. 2,743 individuals who were still challenging deportation had been detained for six months or more). 57. See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L No. 104132, 110 Stat. 1214 (codified as amended in scattered sections of the U.S. Codc); Illegal Immigration Reforim and Immigrant Responsibility Act of 1996. Pub. L. No. 104-208, Div. C, I10 Stat. 3009-546 (codified as amended as amended in scattered sections of 8 and 18 U.S.C.); see also Legoinsky, supra note 21, at 533-34. 58. See, e.g., Gracme Wood. A Boom Behind Bars. BLOOMBLRG BUSINLSSWEEK (Mar. 17, 2011), http://www.businesswveek.con/magazine/content/1 l_13/ b4221076266454.htm (tracing increased detention due to a "get-tough approach on immigration" and noting parallels between growth in criminal and immigration detention); see also Adam Liptak, US. PrisonPopulation Dwapfs that oj Other Nations, N.Y. TIMLS (Apr. 23, 2008), http://ww.nytimes.coti/2008/04/23/world/ameiricas/23iht23prison.12253738.,htmi (noting upward trend in criminal incarceration rates in the United States and noting its connection to the "movement to get tough on crime"). 59. Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302 (2005). 60. Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005, H.R. 4437, 109th Cong. (2005). of 2005.61 He publicly stated that President George W. Bush's administration had received pressure to deal with illegal immigration through "tough enforcement" measures.62 In response, Secretary Chertoff announced intentions to greatly expand immigration detention capacity with the goal of detaining all migrants undergoing proceedings to determine their status, regardless of individual circumstances.6 President Barack Obama's administration has similarly responded to the political environment by focusing heavily on immigration enforcement, including high levels of immigration detention.64 Since 2005, Congress has also emphasized immigration enforcement and has consistently appropriated funding to ensure expansive detention.s 6 1. ComprehensiveImmigration Reform II: Hearing Before the S. Comm. on the Judiciar, 109th Cong. 4 (2005) [hereinafter Chertoff Hearing] (statement of Sec'y Michael Chertoff, U.S. Dep't of Homeland Sec.). This announcement also followed a shift toward detention effectuated through expansion of the expedited removal program, which mandates detention of certain recently arriving igrants for rapid deportation. See 8 U.S.C. 1225 (2006). In 2004 DIS extended the progran's reach to include not only migrants arriving at the border or at sea but also those apprehended within 100 miles of the border during the first fourteen days after their entry. See Designating Aliens For Expedited Removal. 69 Fed. Reg. 48877 (Aug. 11, 2004). 62. ChertofT Hearing, supra note 6 1, at 45 (testifying that meetings with members of Congress established the need for "aggressive and innovative steps" for dealing with immigration and announcing "tough enforcement" measures). 63. Id.; see also Chris Strohm, DHS to End 'Catch and Release' oJ Illegal Aliens in October, Gov'T EXEC. (Feb. 3, 2006), http:,// wy.govexec.corn/defense/2006/02/dhsto-eind-catch-andie-rcase-of-illegal-aliens-in-october/21082 [hereinafter DHS to End Catch and Release]. This announcement is known as the end of "catch and release" in conmonly-used but weighted parlance. It signified a shift in detention policy toward detcntion and ended the prior situation in which many individuals were relcased pending removal proceedings in immigration court. Id.; see STSKIN, supranote 38, at 24: Memorandum from Asa Hutchinson. Under Sec'y for Border & Transp. Sec., Dep't of Homeland Sec. on Detention Prioritization and Notice to Appear Documentary Requirements I (Oct. 18, 2004) (establishing priority categories for deciding "whether to detain an alien"); Legonsky, supra note 21, at 543 (noting older case-by-case rilease policies). 64. janet Napolitano, Sec'y, Dep't of Homeland Sec., Prepared Remarks at the (enter for American Progress (Nov. 13, 2009) (referencing repeatedly the importance of "enforcement" of immigration laws, protecting national security and detaining "dangerous criminal aliens"); Morton MPI Speech, supra note 18 (reflecting ICE head's insistence on detention on a "grand scale"). 65. See S. REP. No. 112-169, at 52 (2012) [hereinafter 2013 SLNATE REPORT ON APPROPRIATIONS] (approving funding of detention at the 2010 and 2011 level to ensure that there will be no return to the "ill-advised 'catch and release' policy") ; H.R. REP. No. 112-492, at 13 (2012) [hereinafter HOUSE 2013 APPROPRIATIONS BILL FOR DHS] (mandating that "fiunding made available under this heading shall maintain a Immigration detention is also big business, which is another factor leading to its steady growth in recent years. For-profit prison companies often carry out immigration detention." These corporations increase their revenues substantially when immigration detention expands as has occurred in the last decade, resulting in lucrative contracts.67 Because detention serves as such an important profit source, private correctional companies lobby Congress and make campaign contributions to protect those profits by increasing or maintaining high detention levels. Reportedly, the Corrections Corporation of America has spent "more than [US]$23 million in lobbying over the course of the decade."@' In 2005, the year that began the most dramatic upward swing in detention, the corporation spent USS4 million lobbying the federal government.69 Some of the expansion in detention must be attributed to these financial interests.70 11. INTERNATIONAL HUMAN RIGHTS STANDARDS On a parallel track, as detention has grown rapidly in the United States, human rights bodies have developed increasingly sophisticated, consistent, and cogent standards for addressing detention of migrants.7' The standards are sufficiently specific that the laws and practices of states, including the United States, may be measured against them. A. Development of the International Human Rights Standards The trend toward standards development in the immigration detention context is recent, however. For more than forty years after the signing of the Universal Declaration of Human Rights in 1948 and the birth of modern human rights law, international bodies made little effort to analyze the application of human rights norms to immigration detention. The adoption of multiple international and regional human rights treaties in the years after the promulgation of the Universal Declaration of Human Rights7 2 failed to secure serious attention to the issue, even though basic provisions of these treaties relating to liberty of the person had obvious implications reasonable fear interview and must wait for a final determination of their claim in immigration court proceedings. Such an interpretation in compliance with international human rights standards is fully plausible given the structure of the statute and regulations. The post-removal order detention statute allows for release of individuals subject to its provisions.29 3 The relevant implementing regulations do not provide a procedure for release of individuals in the context of reinstatement of removal and withholding-only proceedings in immigration court, but they also do not prohibit release.294 The regulations also fail to provide for review of custody decisions affecting persons subject to reinstatement of removal, by immigration court or other means.2s However, they need not be interpreted as impeding immigration court review of detention in the reinstatement of removal context. The regulations already provide for immigration court review of custody decisions in other post-removal order cases where removal is unlikely and detention is thus problematic.29 6 The regulations could be interpreted to provide the same review of decisions regarding custody of individuals in reinstatement of removal proceedings where a migrant is awaiting, or has already passed, a reasonable fear interview.29 If the regulations are instead read to preclude release on the grounds that proceedings are ongoing and removal still may become possible, detention should be subject to individualized immigration court review under the general provisions relating to individuals in pending proceedings.29 C. Detention ofArriving Aliens US immigration law also provides for the detention without review of entire classes of individuals who are categorized by law as "arriving aliens."2' An arriving alien is any individual who applies for admission to the United States at a port-of-entry, for example at an airport or border bridge.soo ICE does not provide statistics regarding the number of individuals subject to "arriving alien" detention rules."o The arriving aliens provisions primarily affect certain categories of asylum seekers and returning lawful permanent residents who have allegedly abandoned their status or have criminal histories. Many asylum seekers originally placed in expedited removal are categorized as arriving aliens, because they were placed into expedited removal after having presented themselves at a portof-entr. 3 11 Even once they pass a credible fear interview and becomes final); 8 U.S.C. 1231(a) (3) (providing for supervised release after the removal period if removal not accomplished). 298. See 8 U.S.C. 1226(a) (2006) (allowing for riclase from detention during removal proceedings); C.F.R. § 1208.2(c) (3) (2012) (outlining that withholding only proceedings are to follow same procedure as removal proceedings); 8 C.F.R. § 1236.1(d) (2012) (allowing for appeal to the immigration court of custody decisions before final order of removal); 8 C.F.R. § 1003.19(h)(2)(i) (2012) (precluding immigration court review of immigration detention decisions in other contexts, but not in reinstatement of removal or withholding-only conexts). It may be most appropriate for the courts to interpret detention in reinstatement of removal as detention during the pendency of proceedings, allowing for release and immigration court review. See Castillo v. ICE Field Office Dir., 2012 U.S. Dist. Lexis 162862 (W.D. Wash. Nov. 14, 2012) (holding that an applicant for withholding of removal who has passed a reasonable fear interview should have the opportunity to seek review of detention under 8 U.S.C. § 1226(a)). To do so, the courts would only need to invalidate the current regulatory requirement that review of detention take place before entry of a final order. See 8 C.FR. § 1236.1(d) (2012). 299. 8 C.F.R. § 1003.19(h) (2) (i) (B) (2012). 300. 8 C.F.R. § 1.2 (2012). 301. DHS Immigration Enforcenent Actions 2011, supranote 13. 302. Those asylum seekers who entered the United States and wvere placed in expedied removal because they were apprehended near the border shortly after crossing, but who were not apprehended at the border, are not arriving aliens. See X-K-, 23 1. & N. Dec. 731, 735 (B.I.A., 2005). leave the expedited removal process for normal immigration court proceedings, they remain arriving aliens because of the manner of their original arrival. * FH presents just such a case. Lawful permanent residents returning to the United States are generally not deemed to be seeking admission, and therefore are not treated as arriving aliens. However, the statute delineates circumstances involving criminal history or abandonment of status in which lawful permanent residents will be deemed to be arriving aliens, seeking admission to the United States. These lawful permanent residents will be detained upon return to this country and placed in proceedings in immigration court to determine their status.304 For arriving aliens, the law grants ICE officials exclusive authority to make determinations regarding their custody situation.3" ICE may continue to detain a migrant or may release the individual on parole, with or without the payment of a bond. ICE's custody determination may not be reviewed by an immigration judge or other tribunal.son Furthermore, the regulations place the burden on the detained immigrant to show an absence of flight risk or danger to the community before ICE will even consider release.s0 The provisions that tightly circumscribe the rights of arriving aliens and sanction their detention are incompatible with international human rights standards. * The rules on arriving aliens create a presumption of detention, rather than release, for whole classes of migrants. They preclude meaningful individualized determinations requiring the government to bear the burden of showing a legitimate goal justifying detention and the unavailability of alternatives other than detention to meet that goal. The rules further fail to provide for authorization or 303. See id.; EXLC. OFFICE FOR IMMIGRATION REV., iMMIGRATION JUDGE BENCHBOOK, (IX) (C) (2007), availableat http://www.justice.gov/eoir/11/benchbook/ resource s/ sfoutline/juirisdiction.hiinl. 304. 8 U.S.C. §1101a(13) (C). 305. 8 C.F.R. 236. 1(c)(8)-(11) (2012); 8 C.F.R. § 1003.19(h)(2)(i)(B); 8 C.F.R. S235.3(c) (2012). 306. 8 C.F.R. § 1003.19(h) (2) (i) (B) (2012). 307. 8 C.F.R. § 236.1(c) (8) (2012); 8 C.F.R. 235.3(c) (2012); 8 C.F.R. § 212.5(b) (2012). 308. Special Rapporteur Report on Mission to the US, supra note 81. 122-23; IACHR REPORT ON DETENTION, supra note 83, 11 139, 418, 431. 2013] review of detention by a tribunal and periodic review. They certainly do nothing to ensure that detention is for the shortest period necessary or to impose a limit on the length of detention. The restrictions on the liberty and due process rights of arriving aliens are particularly problematic, because they have the greatest impact on asylum seekers and on returning lawful permanent residents. Asylum seekers enjoy special protections against detention under international law even when they arrive to a country with no documented status.so9 In addition, both asylum seekers and returning lawful permanent residents who have been placed in removal proceedings have strong reasons and legal opportunity to challenge their removal. They will both likely be detained for an extended period during ongoing proceedings, and their detention cannot be justified by a certain and imminent removal. Nor can detention be justified by the risk of flight, because such individuals will have every incentive to appear for their proceedings. In this context, the international human rights standards should be closely followed. The US courts should, therefore, reference international law to invalidate the special rules limiting the rights of arriving aliens in connection with detention. To achieve this result, the courts need only invalidate the regulations that currently prevent arriving aliens from accessing an individualized review by an immigration court regarding detention.-,0 There is no statute that requires the government to treat arriving aliens distinctly from other migrants. The courts could simply determine that proper interpretation of the immigration statute, in light of international standards consistent with constitutional protections, does not require or permit implementing a regulation that restricts the rights of this particular group of migrants to such an extent.-" 309. See UNICR Detention Guidelines, supra note 78, 1 32. 310. Specifically, it would be necessary to invalidate 8 C.F.R. § 1003.19(h) (2) (i) (B) (2012) (precluding immigration court review of detention decisions regarding arriving aliens) and possibly 8 C.F.R. 235.3(c) (2012) (suggesting that arriving aliens in removal proceedings be dctaincd unkess paroled by ICE). See discussion infra Part IV.E for problems with the immigration court review process, as pertains to human rights compliance, which also must be resolved. 311. At Icast one court has reached the conclusion that arriving aliens arc cotlsLi tiLionally entitled to an individualized bond hearing before the immigration court, where the government has the burden of proving flight risk or danger to the Such a reinterpretation might meet with resistance. The regulations presumably limit the rights of arriving aliens under the theory that individuals presenting themselves at the US border seeking admission have few, if any, rights.3 '2 Based on the Supreme Court's decision in Mezei in the early 1950s, and other cases from this same period, conventional wisdom held for years that migrants at the nation's periphery enjoyed almost no legal protection. 1 However, that notion doctrine. 14 As described significantly 3 ' was based on the plenary power above, that doctrine has eroded Even more, the treatment of migrants seeking entry to the US was based on a manifestation of the plenary power doctrine that has recently become particularly suspect: the assertion that constitutional protections do not apply at the border as a question of territorial sovereignty. 16 The extraterritoriality exception to rights affected even those individuals physically detained within the United States under the fiction that they had not been allowed to enter, as a legal matter, and so they remained outside US boundaries and without protection. 17 In 2008, the Supreme Court called that fiction into question.3 '8 community once detcntion becomes prolonged, despite the regulations precluding such a hearing. See Crespo v. Baker, 2012 U.S. Dist. LEXIS 47909 (S.D. Cal. Apr. 3, 2012); Centeno-OrLtiz v. Cully, 2012 U.S. Dist. WL 170123, at *9 (S.D. Cal. Jan. 19, 2012). 312. In fact, DIS and the immigration courts have recently refused to adopt new regulations that would allow immigration courts to review thc detention of arriving aliens on this basis. See Denial of Petition for Rulemaking, supranote 152, at 5. 313. See Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212-13 (1953); see also United States ex rel Knauff y. Shaughnessy, 338 U.S. 537. 542-43 (1950). 314. See Mezei, 345 U.S. 212-13: Knauff 338 U.S. 542-43; see also ALEINIKOFF, supra note 202, at 174 (noting that Mezei and Knauffwould be overturned if the plenary power doctine were cast aside). 315. See supranotes 214-19 and accompanying text. 316. See Cole, The Idea of Hananity, supra note 193, at 650-51; Zadvyas v. Davis, 533 U.S. 678. 693 (2001). 317. See Jean v. Nelson. 727 F.2d 958. 969 (11th Cir. 1984) (holding that the cntry distinction applies to individuals even though they were held in detention centers in thc United States); Gisbert v. Attorney General, 988 F.2d 1437, 1440 (5th Cir. 1993) (same). 318. I thank Jordan Pollock, a recent University of Texas Law School graduate, for helping me to develop the idea that both international human rights law and US consitutional law have noved in the saic direction in climinating the distinctions in rights granted to migrants at the border. 2013] In the 2008 case, Boumediene v. Bush, involving the detention of suspected terrorists at Guantanamo, the Supreme Court employed a pragmatic approach to analyzing sovereignty and territorial jurisdiction for the purpose of determining the applicability of constitutional liberty protections.3"9 The Court held that the proper analysis should consider the "nature of the sites where apprehension and then detention took place," including the degree of US control.o20 Under this practical reading, detention within the physical territory and control of the United States requires protection of the central liberty rights of detainees, regardless of their status as migrants stopped at the border. This newer approach is also reflected, albeit more tentatively, in the Supreme Court's decision in Clark v. Martinez.32' In Clark, which predates Boumediene by several years, the Supreme Court held that migrants with final orders of removal may not be detained indefinitely within the United States, even if they were never legally admitted to this country. 22 While the decision was based on statutory interpretation, it supports a rethinking of the territoriality limitations as applied to migrants, particularly in light of both Boumediene and the evolution of international standards applying to immigration detention. Given these developments, the questionable distinction made between migrants deemed to be at the border (even when they are physically held in custody inside the United States) and those who have entered the United States, should not require continued allegiance to the arriving alien regulation. The courts should invalidate the regulation in light of international human rights standards. The United States has implicitly acknowledged the tenuousness of the current rules regarding arriving aliens, at least as to asylum seekers, further supporting invalidation of the regulations. In December 2009, ICE issued a memorandum 319. Bourediene v. Bush, 553 U.S. 723, 763-71 (2008); see also Rasul v. Bush, 542 U.S. 466. 482 (2004) (noting that the right to assert liberty through habeas corpus has depended "not on formal notions of territorial sovereignty" but rather on practical questions regarding the entity that has jurisdiction over the place of detention) 320. Boumediene, 553 U.S. at 763-71. 321. Clark v. Martinez, 543 U.S. 371. 380 (2005). 322. Id. at 377-81. providing for the presumptive release from detention on parole of arriving asylum seekers who have passed credible fear interviews.32 Under the new policy, ICE releases a far greater number of asylum seekers, categorized as arriving aliens, than was previously the case. 2 ICE has thus acknowledged that detention is not necessary for many asylum seekers arriving at the border and that across-the-board detention is problematic in this context. This policy memorandum, however, does not go far enough to conform US law to international standards. The policy still does not allow for review of detention decisions by a tribunal, and thus leaves full discretion to detain or release in the hands of the same administrative officials who have taken custody over the asylum seeker. Individualized custody review by the immigration courts would likely result in release, on a finding of no flight risk or danger to the community, for at least some "arriving" asylum seekers who remain in detention under the current policy.." The absence of a mechanism for challenging ICE's decisions regarding detention of arriving asylum seekers also still contrasts with the availability of individualized court review of detention for those who make their way into the United States before apprehension. 26 Thus, asylum seekers such as FH who arrive at the border and declare their need for protection, continue to be systematically disadvantaged in challenging detention, in conflict with international human rights law standards that require individualized assessment and review for all detention decisions.3 27 323. ICE, Dir. No. 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture, 1[ 1 (Dec. 8, 2009). 324. Denial of Petition for Rulemaking, supra note 152 (noting that, under current guidelines, ICE releases approximately seventy six percent of arriving aliens who have passed a credible fear interview). 325. See Notes of Nikiya Natale, Summer 2012 Intern wvith the South Texas Pro Bono Asylum Represientation Project (July 19, 2012) (on file with thc author) (providing information regarding "arriving" asylum seekers from Eritrea and Rwanda detained in south Texas as of july 19, 2012 who had been held from seventy-four to ninety-two days after passing their credible fear interviews). 326. See infra Part IE; see also Denial of Petition for Rulcmaking, supranote 152, 327. See UNHCR Detention Guidelines, supra note 78, 1[ 13 (prohibiting thc application of punitive measures to asylun seekers who present themselves promptly to the authorities). In addition, the new release policy takes the form of a memorandum, rather than a regulation, and so may be changed at any time.."2 As such, US immigration detention law still does not adequately ensure the rights to liberty and due process of individuals presenting at the border. Further transformation of US law, by reference to international standards, is necessary to secure those rights. D. Mandatory Detention on Criminaland Terrorism Grounds US immigration law also mandates the detention of entire categories of individuals, regardless of their arriving alien status, who have been convicted or suspected of particular crimes or of involvement in terrorism.." 9 Lawful immigration status, length of residence in the United States and family ties here are irrelevant in these mandatory detention cases. Consequently, lawful permanent residents like BM are regularly detained under these statutory provisions. ICE does not provide information regarding the number of individuals mandatorily detained in this category. However, the available numbers suggest that, on a given day, near half of the migrants in ongoing immigration court proceedings to determine deportability and status are subject to mandatory detention.ss 328. Policies on parole of arriving aliens have, in fact, changed multiple times through memoranda such as this one. See ICE Policy Directive No. 7-1.0, Parole of Arriving Aliens Found to Have a 'Credible Fear' of Persecution or Torture (Nov. 6, 2007) (imposing stringent standards for release of individuals who have passed the credible fear interview and explicitly superseding prior policy that favored release, contained in Memorandum from Michael Pearson, Detention Guidelines Effective October 9, 1998 (Oct. 7, 1998)). 329. See 8 U.S.C. 1226(c) (2006). Numerous commerntators have noted that the criminal and terrorism grounds requiring mandatory detntion are extremely broad and do not encompass only serious and dangerous crimes or acts. See. e.g., HU-MAN RIGHTS FIRST, DENIA AND DEiAY: THE IMPACT OF THE IMMIGRATION IAW'S "TERRORISM BARS" ON ASYLLM SELKLRS AND RLFUGEES IN THL UNITED STATLS 10-11 (2009); Stephen H. Legornsky, The New Path of Immigration Law: Asymmetric Incorporation of Criminalfustice Naorms, 64 WASH & LEE I. RVF. 469, 483-86 (2007); Teresa A. Miller, Citizenship & Severity: Recent Immigratin Reforms and the New Penology, 17 GLO. IMMIGR. I. J 611, 619, 632 (2003). 330. The US government, in 2009, stated that sixty-six percent of individuals detained on a given day were subject to mandatory detention. See SCHRIRO STUDY, supra note 29, at 6. However, this mandatory detention figure must encompass those individuals held under the separate provisions requiring detention of migrants subject to a final removal order, which I do not address. See 8 U.S.C. § 1231 (a) (2) (2006). Otherwise, all individuals not subject to a final removal order would be subject to The detainee may challenge the determination that he falls within the broad categories of persons subject to mandatory detention, but detention is otherwise automatic.A 1 Individuals subject to mandatory detention may not be released during the pendency of their proceedings except in extremely limited circumstances, and only at ICE's discretion. 3 Even then, the detainee bears the burden of proving that there is no risk of flight or danger to the community. There is no review by the immigration court or any other tribunal regarding the necessity or proportionality of detention. mandatory detention, since approximately thirty-four percent of individuals in detention on a given day have a final order. See MPI Study, supra note 32, at 16-18. If the thirty-four percent of individuals with a final order are excluded from the sixty-six percent in mandatory detention, then approximately thirty-twvo percent of the total number of individuals in detention are subject to mandatory detention on criminal or terrorism grounds while they await the conclusion of the proceedings in their immigration cases. If the number of individuals held pursuant to a final order of removal is actually higher than thirty-four percent, then the percentage of individuals held in mandatory detention based on criminal or terrorism grounds would be slightly smaller. See id. (calculating thirty-four percent figure for individuals with final orders as a percentage of all detainees rather than as a percentage of cases for which information was available regarding pending or post-final order status). Further complicating the calculations, the thirty-two percent subjected to mandatory detention pending a final removal order likely includes individuals detained pursuant to expedited removal in addition to those inandatorily detained on criminal or terrorism grounds. So, the number of individuals mandatorily detained on criminal and terrorism grounds is probably fewer than thirty-two percent of the total nuinbcr of individuals detained pending a final decision. In comparison, migrants who are discretionarily detained during ongoing immigration procccdings-in other words, migrants who are not included in the sixty-six percent of migrants who are mandatorily detained during immigration proceedings or based on a final order-reprcsent about thirty-four percent of the total number detained on a given day. See SCHRTRO STUDY, supranote 29, at 6. A comparison of the discretionarily detained percentage (thirty-four percent) with the percentage of individuals mandatorily detained pending proceedings (below thirtytwo percent) demonstrates that mandatory detention applies to a little less than half of the total number of individuals detained pending a decision on their case. See also JAILED NVITHOUT JUSTICE, supra note 17, at 6 (describing difficulties in obtaining information from ICE regarding numbers of individuals mandatorily detained). 331. 8 C.F.R. § 1003.19(h) (2) (ii) (2012); Joseph, 22 I. & N. Dec. 799 (B.I.A., 1999). 332. 8 U.S.C. 1226(c) (2) (2006) (allowing relcase only where necessary to provide protection to witnesses r other individuals cooperating with a major criminal investigation); 8 C.F.R. § 1003.19(h)(2)(i)(1)) (2012) (prohibiting immigration court review of detention for individuals held under 8 U.S.C. 1226(c) (2)). 333. 8 U.S.C. 1226(c) (2). 334. 8 U.S.C. § 1226 (e); 8 C.F. R. § 1003.19(h) (2) (i) (D) (2012). 2013] The mandatory detention statute conflicts with the international human rights standards regarding immigration detention in multiple ways.." At the level of principles, it establishes a system that presumptively and irrevocably detains large classes of individuals rather than treating detention as a measure of last resort. In relation to the more specific requirements of international human rights law, the mandatory detention statute prevents any analysis of the existence or legitimacy of governmental goals justifying detention and certainly does not hold the government to its burden of proof to establish the need for detention in individual cases. Nor does the mandatory detention statute allow for adoption of less restrictive means for meeting governmental objectives, such as through imposition of alternatives to detention, other than physical custody.3 3 The statute does not ensure that detention is for the minimum period necessary, and there is no time limit on the period of detention under the statute. While detention should end with the completion of removal proceedings, no timeframe is imposed on those proceedings. Detention may also continue even after there is no longer any justification that detention is necessary to effectuate removal or to prevent flight risk or danger to the community. For example, detention sometimes continues even when the detainee has won the right to remain in the United States but awaits a decision on an appeal filed by ICE.,3 Finally, the mandatory detention statute and the implementing regulations preclude the type of determination or review of detention by a tribunal required by international law. The possibility for a hearing to determine whether a detainee 335. See Special Rapporteur Report on Mission to US, supra note 81, 11 15, 23, 72-74, 110; IA(HRRLPORT ON DETENTION, supranote 83. 1[ 17, 49, 428. 336. Advocates have argued that the mandatory detention statute could be read to allow use of alternatives to detention, such as ankle bracelets or reporting requirements, as a means of complying with the statutory comiand to take all individuals subject to the statute into custody. See UNIOCKING ITBERTY, supra note 17, at 38-39; Hecrcn, supranote 240, at 632. However, the statute is not currently interpreted in that manner. Id. 337. See Heeren, supra note 240, at 629 (describing the history of an individual client detainee who remained in detention for cleven months after an immigration court granted him the right to remain in the United States); see also Letter from Barbara Hines, supra note 6. properly falls within the category of individuals subject to mandatory detention is not adequate under the international human rights standards. The international standards require that the reviewing tribunal have the authority to review not just compliance with domestic law but also with the international requirements of an individualized showing of the need for detention. The mandatory detention statute is not readily susceptible to an interpretation that would bring it into line with international human rights standards." It will likely be necessary, then, to instead interpret the US Constitution's rights to liberty and due process in accord with international human rights standards in order to overcome the mandatory detention provisions. Specifically, the courts should invalidate the mandatory detention statute as exceeding the limits on detention imposed by the liberty and due process provisions of the Constitution. By striking down the mandatory detention statute, the courts would devolve to immigration officials the authority to detain and release all individuals in removal proceedings after an individualized determination without regard to their inclusion in the categories currently subject to mandatory detention. The decision to detain or release would be subject to review by the immigration courts in the same way 338. See Human Rights Comm., A v. Australia, supra note 79, 1 9.5 (finding that the detention review process violated human rights where it allowed only inquiry into the applicability of the mandatory detention category to the detainee); Human Rights Comm., Shams v. Australia, supra note 81, 1[7.3 (noting similarly that the detention review process as applied violated human rights). 339. Some scholars have argued that ICE could interpret the mandatory detention statute more narrowly than it currently does. See Kalhan, supra note 25, at 53-54. Such narrowed interpretations would bring the statute closer to compliance with international human rights law and might even lead to de facto individualized hearings in many cases to determine whether mandatory detention should apply in particular circumstances. Such reinterpretations would be desirable and would be consistent with the approach urged in this Article. However, even if more narrowly interpreted, the statute would presumably still apply to require detention of at least some categories of migrants without any individualized determination or opportunity for review. As such, it would still violate liberty and due process as understood under international human rights law. 2013] that non-mandatory detention decisions are currently subject to review.sso It will be necessary to wrestle with the Supreme Court's decision in Demore to reach such a conclusion regarding the unconstitutionality of the mandatory detention statute. In Demore, the Supreme Court approved the current broad interpretation of the mandatory detention statute as constitutionally sound. 41 However, the Supreme Court's decision should not stand in the way of a determination of unconstitutionality in light of international human rights standards that aid in construing the Constitution's liberty and due process provisions in a manner that provides adequate protection of these central rights. Constitutional interpretations can and should change in light of persistent and coherent international standards that call those interpretations into question, as is the case here.342 The use of international human rights standards would do important work in bringing constitutional interpretation back into line with Supreme Court jurisprudence in cases other than Demore. An interpretation that rendered the mandatory detention statute invalid would be fully in line with the civil detention cases in contexts other than immigration, as described above.3 It would also be consistent with the Supreme Court's decision in Zadvydas, establishing the applicability of constitutional protections regarding civil detention to immigration detention.344 Zadvdas' reference to constitutional limits on detention after a finding of removability strongly suggests that the Constitution is properly interpreted to impose limits on immigration detention before a decision regarding removal has even been made.345 340. See infra Part IV.E for discussion on human rights compliance problems with the immigration court review process, which also must be resolved for immigration court review to comply with international human rights standards. 341. 538 U.S. 510 (2003). 342. Clcycland, supra note 162, at 111 (noting that "judicial construction of constitutional provisions does evolve" and the "persistent presence" of an international rule that diverges from a particular constitutional interpretation should lcad to reconsideration of the constitutional rule). 343. See supraPart II.B. 344. Zadvydas v. Davis, 533 U.S. 678, 690 (2001). 345. Id.; see Cole. In Aid of Removal supra note 20, at 1022 ("If aliens filnally ordered deported have a liberty interest in being free of physical custody, a firtiori It would also be possible to reverse course after Demore by recognizing some of the limitations of the decision on its own terms, particularly when the international human rights standards help to explain the relevance of those limitations. In Demore, the Court upheld the mandatory detention statute on the grounds that it allowed for detention for the brief period necessary to facilitate immediate removal.3 4 6 Putting the Court's analysis in the terms of the international human rights standards, detention would be purely for the purpose of imminent removal and so would be non-punitive.347 However, the Court misinterpreted the mandatory detention scheme in ways that conceal its incompatibility with international human rights law. The mandatory detention scheme in fact imposes detention during proceedings to determine status, which may be lengthy and without a definite outcome. Once this reality becomes apparent, the grounding of the decision in Demore falters. Thus, the Demore court expressly based its analysis and decision on an understanding that detention times under the statute were very brief.348 However, the information now available demonstrates that detention times are much longer than understood by the Court, at least for individuals challenging removal.349 A number of courts have already concluded that the realities of lengthy detention times require the imposition of constitutional limitations on the mandatory detention statute despite the decision in Demore.,50 These aliens who have only been charged as deportable have at lcast as strong a liberty interest."). 346. Demore v. Kin, 538 U.S. 510. 513-14. 529 (finding detention for a "brief period" constitutional where the migrant conceded that he was deportable). 347. Even if detention under the scheme was intended to facilitate immediate removal, international human rights law standards would still require a determination that detention was actually necessary to secure removal in the individual circumstances if detention for this purpose exceeded a very limited period. 348. Demore, 538 U.S. at 529. 349. See supranotes 52-56 and accompanying text. 350. See Diop v. ICE, 656 F.3d 221 (3d Cir. 2011) (deciding that the Constitution only authorizes mandatory detention for a reasonable tilie, after which an individualized custody deterinination hearing is constitutionally required); CasasCastrillon v. Dep't of Homeland Sec., 535 F.3d 942 (9th Cir. 2008) (determining that the mandatory detention statutc cannot constitutionally authorize prolonged detention, so individual review is required under general detention statute rather than mandatory detention provision); Monestime v. Reilly, 704 F. Supp. 2d 453 (S.D.N.Y. 2013] decisions do not go far enough to impose constitutional limits on detention in compliance with the international standards, though. Rendered in the shadow of Demore, they require individualized review only after detention has become prolonged. International standards instead require an individualized determination with judicial review pronptly after detention takes place and require periodic reviews thereafter if detention continues.'5 1 The decisions nonetheless demonstrate very real possibilities for reinterpreting constitutional norms to invalidate mandatory detention even after Demore. The Demore decision also relied heavily on the understanding that the statute covered individuals who would be deported. Thus, the Court repeatedly referenced mandatory detention of "deportable criminal aliens" )2and placed emphasis on the fact that the named detainee had acknowledged deportability.153 In concurrence, Justice Kennedy explicitly noted that the "purpose behind the detention is premised upon the alien's deportability." 64 However, many individuals subject to mandatory detention, such as BM, face complex immigration proceedings in which the final result is far from clear. US law makes available procedures for challenging removability or for seeking permission to remain in the United States even to individuals subject to mandatory detention.5 Some non-trivial number will not be deported at the end of those proceedings but instead will receive 2010) (holding that an individualized hearing is constitutionally required despite mandatory detention statute). 351. The decision and review may not be feasible immediately upon apprehension. But they must take place promptly and as a means of determining whether detention is necessary, not whether it has become unduly prolonged. 352. Demore, 538 U.S. at 513, 528 (emphasis added). 353. Id. at 514, 523; cf. id. at 523 n.6 (noting that the individual detainee had applied for relief from deportation and might not be deported without analyzing the impact that this reality had on its characterization of detention as incidental to deportation). 354. Demore, 538 U.S. at 531. 355. See, e.g., 8 U.S.C. § 1229a(a)-(c) (2006) (setting out proceedings and burden of proof where deportability is challenged); 8 U.S.C. 1101(a) (15) (U) (2006 & Supp. V 2011) (providing for visas for individuals who have been victimized and have assisted law enforcement authorities); 8 U.S.C. § 1182(d) (13) (providing a waiver for criminal and other bars to lawful immigration status); 8 C.F.R. § 208.17 (2012) (precluding deportation of individuals who would be subjected to torture even if they have serious criminal convictions). authorization to remain in the United States. 5 In these circumstances, automatic detention does not directly serve the purpose of removing deportable migrants. Detention must then be deemed punitive unless the government engages in individualized determinations of the need for detention to meet specific goals relating to the pending removal proceedings, such as preventing flight or danger to the community. Because mandatory detention is instead automatic for entire categories of persons, it fails to meet the international human rights standards. The limitations of the Demore decision require reconsideration of its holding regarding the constitutionality of mandatory detention in light of international human rights standards. E. Non-Mandatory Detention In a final category, the immigration laws allow for the detention of all other migrants in immigration court proceedings who are not subject to automatic detention under one of the schemes described above. Asylum seekers who are not arriving aliens and who have been placed into proceedings after a successful credible fear interview fall into this category. All other individuals apprehended within the United States and placed into proceedings also fall into this category if not otherwise subject to mandatory detention under the criminal and terrorism grounds. After apprehension, for individuals not subject to mandatory detention, ICE makes an initial decision to detain or to release with or without payment of bond.m The detainee may 356. See EOIR Statistical Yearbook 2011, supra note 43, at D2, P2 (noting that favorable results were achieved in twenty-five percent of deportation cases in immigration court in 2011 and even individuals who undcient removal proceedings during incarceration on scrious criminal charges obtained relief or termination of proc eedings in alrmost 150 cases during 2011) ; Historic Drop in Deportation Orders Continues as humgration Court Backlog Increases, TRANSACTIONAL RECORT)s ACCFSS CLLARINGHOUSL (Apr. 24, 2012), http://trac.syr.edu/inmigration/repor ts/279 (showing that relief was granted in approximately fifteen percent of all removal proceedings and another approximately fifteen percent of all removal cases resulted in termination of removal proceedings for failure to sustain deportability or other similar reasons). 357. See 8 U.S.C. 1226(a) (2006); 8 C.F.R. § 23 6.1(c)(8) (2012). ICE has full authority not to detain an individual after apprehension under these provisions. The statute and regulations allowing detention pending removal proceedings are explicitly seek review by the immigration court of a decision to detain, and the court may order release and may lower any bond set by ICE.3 An appeal to the Board of Immigration Appeals, the appellate administrative body on immigration issues, is also possible. " The available data suggests that a little more than half of all detainees awaiting a decision in their immigration cases are detained discretionarily rather than pursuant to mandatory detention.3) A rough estimate would put the number of individuals held by ICE in discretionary detention at approximately 75,000 per year. 1 The non-mandatory detention scheme has received less attention than the mandatory detention provisions, perhaps because individualized determinations and release from permissive rather than mandatory. 8 U.S.C. 1226(a); 8 C.F.R. § 236.1(b) (2012). However, as a general rule, ICE officials detain arrested individuals and place them into removal proceedings. See AARTI KOHLI ET AL.. THE CHIEF JUSTICE EARL V.ARRLN INST. ON LAw/&V SOC. POLICY, SECURE COMMUNITIES BY THE NUMBERS: AN ANALYSIS OF DEMOGRAPHICS AND DUE PROCESS 7-10 ( 2011) (noting that ICE proceeded to detain sixty tw'o to eighty three percent of apprehended individuals, releasing few on bond, and detention rates were similar for aggravatcd felony cases and discretionary detention cases); Detainees Lea ingICE Detention. supra note 44 (finding that, nationally, only ten percent of migrants were released on bond during proceedings). 358. 8 C.F.R. § 1236.1(d) (2012). 359. Id. § 1236.1(d) (3). 360. Seesupra note 330 (calculating the approximate portion of individuals subject to mandatory and discretionary detention pending a decision on deportability and status, in reliance on data made available by the government); SCHRIRO STIDY, supra note 29, at 6. 361. The immigration courts report that 75,000 individuals sought bond hearings in 2011. See EOIR Statistical Yearbook 2011, supra note 43. at B7. This number serves as a proxy for those wvho are detained discretionarily and thus have the ability to seek release at a hearing in immigration court. Some small percentage of those who pursue a bond hearing in immigration court are actually subject to mandatory detention. See julie Dona, Making Sense of ubstantialy (linkey' An Empirical Analysis of the joseph Standard in Mandatoy Detention Custody Heargs, IMMICR., REFUGEE & CITIZENSHIP L. L., ailable at http://ssrn.com/abstract=1 856758 (finding fewer than 200 cases involving hearings that challenged mandatory detention over a four-year period). On the other hand, some individuals wvho were detained on a discretionary basis will have obtained recase from ICE through payment of a bond without requesting a bond hearing in immigration court and wvill thus not be reflected in the figures from the immigration court even though ICE detained them at agency discretion for some period. This 75,000 number also represents slightly more than half of the total number of individuals detained pending immigration court proceedings, which is consistent with other government figures. See supra notes 43-45, 330 and accompanying text (calculating that discretionary detention accounts for more than half of detention pending proceedings and estimating that more than 125,000 individuals are detained pending proceedings in total). detention are broadly available under these provisions in theory.362 However, most migrants eligible for release nonetheless remain in detention for some or all of the length of their removal proceedings. 36 The statutory regime does not comply with the general principle of international human rights law imposing a presumption against detention.3 4 The continued emphasis on detention in this segment of the US detention system follows from a number of incompatibilities between the discretionary detention scheme and the more specific international human rights requirements. As an initial matter, ICE and the immigration courts do not make a determination regarding the least restrictive means for meeting governmental objectives relating to the immigration process before resorting to detention. After initial apprehension, ICE and the immigration courts generally only evaluate the possibility of continued detention or release on bond. They do not systematically consider the possibility of deploying alternatives to detention, other than payment of a bond, to address the potential for flight risk or danger to the community. ICE could employ formal alternative-to-detention programs, such as community supervision programs, reporting requirements and ankle bracelet technology. However, the agency generally initiates enrollment in these programs for individuals who have already been released from detention. * As a result, the programs do not serve as means of allowing release from detention. Instead, when ICE requires participation in such a program, it increases the level of supervision imposed rather than minimizing the restrictions, as required by 362. But cf. KaIhan. supra note 25, at 48 (attributing "overdetention" in soe part to "bonds that are routinely set too high for detainees to pay"). 363. See Detainees Leaving ICE Detention, supra note 44 (noting that only ten percent of nigrants are recased on bond); Designed-and-Built Civil DeLtcntion (enter, supranote 254 (describing detention center exclusively for detainees who "do not pose a threat to themselves or othiers, and are not a flight risk"). 364. See IACHR RLPORT ON DETENTION, supranote 83 1 232 (" [D]tcention for a protracted period owing to the inability to post bond-which is what happens in most cases-becomes arbitrary"). 365. See UNLOCKING LIBERTY, supranOW 17. 366. Id. at 32; FREED BUT NOT FREE, supranote 242, at 1. 2013] international human rights law. " Even then, ICE's decision regarding use of these alternatives usually does not depend on any evaluation of the level of supervision necessary in an individual case, but rather on the financial and physical availability of programs at the time and place when ICE considers their use.A6* The immigration courts do not consider the possibility of imposing alternatives to detention, other than bond, at all in their review of custody decisions.69 The immigration courts cannot order release while requiring participation in an alternatives-to-detention program.s7o Only ICE may enroll a migrant in such a program. 1 The immigration courts cannot then conduct a review of ICE detention decisions that includes a meaningful analysis of the possibility for controlling any potential flight risk or danger through mechanisms less restrictive than detention. Given the insistence in the international human rights standards that the full range of alternatives to detention be considered to ensure the least restrictive means of meeting governmental objectives, the courts should interpret the immigration regulations to require ICE to consider all alternatives to detention before reaching a decision to detain. Similarly, they should interpret the custody review authority of the immigration court to include the ability to order release from detention and imposition of the least restrictive alternative to detention that would address any flight risk or danger to the 367. See Kalhan, supra note 25, at 55 (asserting that, if a migrant placed in a formal alternative-to-detention program would otherwise have been released on recognizance or bond, the "alternative" involves a restraint more restrictive than necessary to accomplish governmental goals). 368. UNLOCKING LIBERTY, supra note 17, at 31; FREFD BUT NOT FREE, supra note 242, at 8; DHS CONGRESSIONAL BUDGET JUSTIFICATION, supra note 39, at 44; SCHRIRO STUDY, supra note 29, at 20. 369. The exclusive focus on bond leads to the problematic rule that individuals who pose a danger to the community may not be released at all. See Uriena, 25 1. & N. Dec. 140 (B.IA., 2009). If payment of a inonetary bond is the only available alternative to detention, it is understandable that the courts would see it as a means of meeting the governmental goal of avoiding flight risk but not of preventing dangerousness. If other alternatives were considered, such as electronic supervision. the result would likely be different. 370. See 8 C.F.R. § 1236.1(d) (2012) (allowing immigration court review only to decide detention, release or relcase on bond). 371. See UN LOCKING IIBERTY, supra note 17. community. The regulations must also be read to preclude imposition of an alternative to detention that is more restrictive than release alone once ICE or the court has determined that no flight risk or danger to the community exists. Nothing in the statute or regulations prevents such an interpretation in light of international human rights law.172 Apart from the failure to consider true alternatives to detention, the custody determination process in discretionary detention cases suffers from several other problems under international human rights law. The process fails to require the government to justify detention in reference to a legitimate goal as required under the international human rights standards. The case law and regulations require consideration of the appropriate governmental goals of avoiding flight risk or danger to the community during the pendency of removal proceedings." However, the process and consideration of factors relating to flight risk or danger focus exclusively on the determination as to the amount of bond required for release." Thus, bond is not treated as an alternative to detention that may be utilized to address some level of established flight risk. Instead, the process assumes that detention may be ended only through payment of a bond, without requiring the government to establish danger or flight risk in the first place.37 372. See 8 U.S.C. § 1226(a) (2006) (allowing for release on bond or parole and mentioning the possibility of conditions); 8 C.F.R. § 236.1 (c) (8) (2012) (referencing the statute to describe detention decisions allowed by ICE); 8 C.F.R. § 1236. 1(d) (providing for imnigration court review of ICE custody decisions). As a practical matter, procedural and contractual arrangements would need to be worked out between ICE and the immigration courts to allow the immigration courts to enroll migrants in formal alternatives to detcntion progriams, because ICE currently dictates when and where such programs are available. 373. See Guerra, 24 I. & N. Dec. 37, 40 (B.IA., 2006) (requiring analysis of flight risk or danger to the community and delineating factors to be considered including the migrants criminal record, record of appearance at hearings, family ties, and fixed address, and manner of entry into the United States); 8 C.F.R. 1236.1 (c) (8). 374. 8 U.S.C. 1226(a) (2006) (allowing for relcase on bond or parok); 8 C.F.R. § 236.1 (c) (8) (2012) (giving ICE the authority to relcase migrants on bond): 1236. 1(d) (providing for immigration court review of bond decisions). 375. See 8 U.S.C. § 1226(a) (2006); 8 C.F.R. § 1236.1(c)(8),(d) (2012). ICE or a reviewing immigration court may order release without payment of a bond, on recognizance. However, such release is relatively uncommon and its availability does not dilute the focus on bond as the primiary means of obtaining relcase. See supranotes 357, 363. The UNHCR Detention Guidelines specifically address the situation where a bond is "systematically required," with any failure to pay bond resulting in continued Furthermore, release from detention is deemed to be discretionary at all times. 7 In other words, the process does not result in mandatory release where the government fails to make a showing of the necessity of detention in an individual case. In line with the discretionary nature of the process, "the burden is on the alien" to show that he or she "merits" release on bond. 7 The detainee must establish that "he or she does not present a danger to persons or property, is not a threat to the national security, and does not pose a risk of flight."378 The process inverts the burden of proof required under the international human rights standards. Rather than requiring the government to establish the necessity of detention, the detainee must show an absence of reasons for detention in order to seek release. The imposition of the burden of proof on the detainee and the broad discretion enjoyed by ICE and the immigration courts in reaching detention decisions often lead to prohibitively high bond amounts, which in effect constitute a decision to detain rather than release. The average bond amount set nationwide is USS6,000, and bonds are often much higher.."' It is simply impossible for many detained migrants to pay this amount and obtain release, so they remain in detention throughout their removal proceedings.3" The setting of a bond becomes a means of continued detention, without established necessity, rather than a means of securing appearance at removal hearings after release. Where bond is set at a prohibitively high level, a determination has been made that detention is not necessary to meet governmental objectives; yet the migrant is not released. detention. UNHCR finds that such a systern provides for detention that is "arbitrary" as insufficiently tailored to individual circunstances. UNHCR Detention Guidelines, supra note 78, at Annex A (vi). 376. See Guerra, 24 I. & N. Dec. at 39; DJ, 23 I. & N. Dec. 572, 575 (B.I.A., 2003); 8 C.F.R. § 1236.1(c) (8) (2012). 377. Guerra,24 I. & N. Dec. at 40: see 8 C.F.R. § 1236.1 (c) (8) (2012). 378. Guerra,24 I. & N. Dec. at 38; see 8 C.F.R. § 1236. 1(c) (8) (2012). 379. IA( HR REPORT ON DETENTION, supra note 83, 81 (citing to the US government response to the IA( HR Report); NYU SCH. OF L. IMMIGRANT RIGHTS CLINIC, ET AL., INSECURE COMMUNITIES, DEVASTATfD FAMILTES: NETW DATA ON IMMIGRATION DLTENTION AND DLPORTATION PRACTICLS IN NEW YORK CITY 8 (2012) [hereinafter NAlU IMMIGRANT RIGHTS CLINIC DATA] (noting that high bonds often require individuals to remain in detention throughout proceedings and providing a recent example of a high bond amount of USS100,000). 380. See IACHR RLPORT ON DLTENTION, supra note 83, 81; NXU 1IMIGRANT RIGHTS CLINIC DATA, supra note 379 at 8. The bond procedures thus also fail to ensure that detention is for the shortest period possible. The detention determination process should be modified, in light of the international human standards. The government must bear the burden of proof of showing the necessity of detention in the proceedings. Where necessity is not shown, the immigration court must order a migrant's release if ICE has chosen not to do so. Discretion to detain or to set bond levels must be correspondingly limited to ensure adequate protection of the right to liberty. The courts could interpret the current statute in accordance with the international human rights standards to achieve these changes. The statute does not designate who carries the burden of proof for detention decisions)3' although it does suggest that release from detention is permissive rather than mandatory and that detention decisions fall within the government's discretion.382 The statute could nonetheless be read to recalibrate the burden of proof and cabin discretion to detain or release where the government has failed to make a showing of the need for detention. Changes in the regulations and case law would necessarily follow changes in the interpretation of the statute. A final difficulty remains with the current process for detention determinations. There is no provision for automatic periodic review of detention as required under international law. After ICE makes an initial detention decision, ICE may change custody conditions or order release, but faces no requirement to periodically consider such possibilities or to consider the continued need for detention on its own initiative.384 Furthermore, the regulations generally limit a detainee's ability to challenge detention to a single request for immigration court review of the detention decision.385 After an 381. 8 U.S.C. § 1226(a) (2006). 382. Id. (providing that a migrant "iay be released on such conditions as the [government] deems appropriate"). 383. The regulations and caselaw imposing the burden of proof on the migrant to justify relcase would necessarily be found to be incompatible with a proper interpretation of the statute. See 8 C.F.R. 236.1(d) (2012); 8 C.F.R. 1236. 1(d) (2012); Guerra, 24 I. & N. Dec. at 40. 384. See8 C.F.R. § 236.1(d) (2012). 385. 8 C.F.R. 1003.19(e) (2012). initial challenge, a detainee may only invoke renewed review by the immigration court through a written request "showing that [the detainee's] circumstances have changed materially." 86 The law thus includes no procedure for evaluating the continued necessity of detention, based on the length of detention or the circumstances of the case, and imposes no maximum time limit for detention. The detention decision review procedure should be strengthened by imposing requirements based on the international human rights standards. Specifically, the regulation imposing restrictions on renewed challenges to detention decisions should be deemed inapplicable, and automatic review of detention by ICE with recourse to the immigration court should be required.387 Changes in the non-mandatory detention process in line with the international human rights standards are made relatively easily under new interpretations of the current statutory and regulatory structure. Yet, they would lead to significant improvements in protections of the rights to liberty and due process in the immigration detention context. COACLUSION INTRODUCTION ........... 244 I. THE CURRENT STATE OF IMMIGRATION DETENTION . ............................ ..... 252 II. INTERNATIONAL HUMAN RIGHTS STANDARDS ........... 261 A. Development of the International Human Rights Standards ............................. ..... 261 B. Content of the International Human Rights Standards ......... 265 1. Rights that Form the Basis of the International Human Rights Standards ........... ........ 266 2 . General Principles of the International Human Rights Standards Relating to Immigration Detention .. ................... .................. 267 3. Specific Requirements of International Human Rights Law Regarding Immigration Detention ... 272 III. THE RELEVANCE OF THE INTERNATIONAL HUMAN RIGHTS STANDARDS TO US IMMIGRATION DETENTION ........................................ 279 A. US Obligations Under International Human Rights B. Detention of Individuals in Expedited Removal and Reinstatement of Removal ............... ...... 304 1 . Expedited Removal .............................................. 304 10 . FH Brief, supra note 8 , at 32. 11. See OFFICE OF PLANNING, ANALYSIS, & TLCH .. U.S. DLP'T OF JUSTICE , IMMIGRATION COURTS: FY 2011 ASYLU M STATISTICS , availableat http://www.justice.gov/ coir/cfoia/foiafreq.htm; see also BUREAU OF DEMOCRACY, U .S. L) EP'T. OF STATE , 2010 HUMA N RIGHTS RLPORT : ERITREA 4 ( 2011 ), available at http://www.state.gov/ docurments/organization/ 160120.pdf. 12. Order of the linmigration Judge (Nov . 14, 2011 ) ( on file with the author ). 13 . See OFFICL OF IIilGRATION STATISTICS. U.S. DLP'T OF HOMELAIND SLC .. ANN AL REPORT: IMMIGRATION ENFORCEMENT ACTIONS : 2011 ( 2012 ) [hereinafter DIS IMMIGRATION ENFORCEMENT ACTIONS 20111. 14 . See generally 8 U.S.C. § 1225 . 1226 . 1229a . 1231 ( 2006 ). 15 . About ICE : Overview, U.S. IMMIGRATION & CUSTOMS ENFORCFMENIT , http://www.ice.gov/about/overview (last visited Feb . 13 , 2013 ); see also Detention detention-nanagerent (last visited Feb . 13 , 2013 ). 16. See infra notes 36-41 and accompanying text (providing statistics on growth of detention); see also infra notes 226-29 . 236 and accompanying text (establishing extent of US reliance on detention) . 38 . See ALisON SISKIN , CONG. RESEARCH SERV., RI32369 , IMMIGRATION-RELATEf) DETENTION: CURRENT LEGISLATIVE ISSUES 12 ( 2004 ). available at http://digital.1ibrar .unt.edu/ark:/67531/imetacrs5951/mli/1/highres_d/ RL32369_2004Apr28.pdf. 39 . Fact Sheet. Detention Management , U.S. INIMICRATION & CUSTOMS ENFORCEMENT (Nov. 10 , 2011 ), http //wwy.ice. gov/ news/l ibrar/ factsheets /detention-mgnt.htm ENFORCEMENT SALARILS AND EXPENSES , FISCAL YEAR 2013 CONGRLssIoNAL BUDGET JUSTIFICATION 37 ( 2013 ), http:,// wy.dhs.gov/xlibrary/assets/mgmt/dhs- congressional-budget-justification-fy2013.pdf [hereinafter DHS CONGRESSIONAL BLDGETJLSTIFICATION]. 40 . OFIcE OF IMMIGRATION STATISTICS, U.S. DEP'T OF HOMEIANT ) SEC ., ANNUAL RLPORT-IMMIGRATION ENFORCEMENT ACTIONS : 2005 . at 1 ( 2006 ). 41. DHS INmIIRATION ENFORCEMENT ACTIONS 2011 . supra note 13, at 1. 42. Id . ; see infra Part IV.B., for an explanation of the expedited removal and reinsLtatemclt of emo val processes. 43. See OFFICE OF PLANNING, ANALYSIS & TECH ., U.S. DEP'T OF JUSTICL , FY 2011 : STATISTICALYEARBOOK01 ( 2012 ) [hereinafter EOIRSTATSTICALYFARBOOK2011] . 69. See Kirkham, supra note 67; see also Burke & Wides-Munoz , supra note 67 (stating that private prison companies spent USS5 million on lobbying in 2005 ). 70 . See Kirkham, supranote 67 ( making a connection between increased lobbying in 2005 and increased detention beginning that year) . 71 . See CORNELISSE , supra note 23, at 337 ( noting a "growing body of human note 23, at 169 ( showing how international fora began to look at immigration detention practices after the 1980s). 72. See International Covenant on Civil and Political Rights, Dec. 16 , 1966 , 999 1.N.T.S. 171 [ hereinafter ICCPR ]; Organization of American States, American Convention on Human Rights art. 1, opened for signatureNov. 22 , 1969 , O.A.S.T.S. No . 36 , 1144 U.N. T.S. 123 (entered into force July 18 , 1978 ) [hereinafter American Fundamental Freedoms , Nov. 4 , 1950 . 213 U.N.T.S. 221; International Convention on Dec. 18 . 1990 , 2220 1.N.T.S. 3 [hereinalter IN Convention on the Rights of Migrants] .


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Denise Gilman. Realizing Liberty- The Use of International Human Rights Law to Realign Immigration Deterntion in the United States, Fordham International Law Journal, 2017,