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Aclu Immigrants Rights Project Prolonged Immigration Detention Issue Brief 2009

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ISSUE BRIEF Prolonged Immigration Detention of Individuals Who are
Challenging Removal*
On an average day, the U.S. Department of Homeland Security (DHS) detains roughly 33,400
non-citizens in federal detention facilities and local jails across the country, over a threefold
increase in its detention population since just over a decade ago. The government’s hugely
expanded use of immigration detention has meant that thousands of immigrants are detained
for prolonged periods of time—for months, if not years, and often in inhuman and cruel
conditions—while the immigration courts and federal courts resolve their cases. Many
individuals are imprisoned without ever receiving the most basic element of due process: a
bond hearing to determine whether their detention is even necessary. Thus, these individuals
are needlessly subjected to prolonged imprisonment even though they may have substantial
challenges to removal from the United States and pose no significant danger to society or
flight risk. Many are also forced to choose between being locked up indefinitely and giving up
their immigration claims. Prolonged immigration detention is arbitrary and unfair, and
imposes tremendous hardship on immigrants and their relatives, many of whom are U.S.
citizens or otherwise residing lawfully within the United States.
The ACLU has long been at the forefront of efforts to challenge prolonged immigration
detention. Recently, the ACLU, with the leadership of the Immigrants’ Rights Project (IRP),
has won a number of major cases imposing statutory and constitutional constraints on
prolonged immigration detention.1 The ACLU also engages in ongoing administrative and
legislative advocacy in this area.

Why has prolonged immigration detention become a problem?
The problem of prolonged detention is due in part to the extraordinary expansion of
immigration detention in general as U.S. Immigration and Customs Enforcement (ICE), a
component of DHS, has ramped up its enforcement efforts and Congress has authorized more
and more detention beds. In just over a decade, immigration detention has tripled. In 1996,
immigration authorities had a daily detention capacity of less than 10,000.2 Today, ICE holds
on average roughly 33,400 individuals in its custody on any given day,3 and this number is
likely to increase even further in 2009. More than 311,000 men, women and children were
detained by ICE in fiscal year 2007,4 and ICE planned to detain over 440,000 in fiscal year
2009.5
Under the immigration laws, many immigrants are subject to mandatory detention during the
pendency of their immigration cases. Mandatory detainees are held without any right to a
bond hearing before an Immigration Judge (IJ) or other review over their custody. In 1996,
Congress significantly expanded the categories of individuals who are subject to mandatory
detention to include immigrants convicted of essentially any crimes, including non-violent
misdemeanor convictions without any jail sentence.6

*Note: This Issue Brief addresses the prolonged detention of non-citizens who are continuing to challenge their removal, either in administrative removal proceedings or in
federal court. Many non-citizens who are no longer fighting their removal are also subject to prolonged and indefinite detention. Their detention raises a number of separate legal and policy issues which are addressed in a forthcoming Issue Brief on indefinite detention.

ACLU IRP Issue Brief: Prolonged Immigration Detention

July 2009 Š 1

In Demore v. Kim, 538 U.S. 510 (2003), a case litigated by the ACLU, the Supreme Court
upheld the constitutionality of mandatory detention. However, the Court only did so where
the immigrant had conceded deportability and where detention lasted for the “brief period
necessary for [completing] removal proceedings”—a period that typically “lasts roughly a
month and a half in the vast majority of cases . . . and about five months in the minority of
cases in which the alien chooses to appeal [to the Board of Immigration Appeals].”7 Despite
the limits set forth in Demore, ICE presently interprets the mandatory detention statute to
require detention regardless of length. As a result, many immigrants whom the government
subjects to mandatory detention often face prolonged periods of imprisonment while they
fight their cases.
This problem has only worsened under the government’s constructions of the statute that
dramatically expand the reach of mandatory detention. The government currently applies the
mandatory detention regime to individuals who have bona fide challenges to removal8 and to
individuals with decade-old offenses,9 even though these individuals are most likely to be
long-term residents of the United States, with strong community and family ties, records of
rehabilitation, and other factors that can weigh against their deportation. The ACLU contends
that these policies are in violation of the statute.
Finally, lengthy delays in immigration courts, the Board of Immigration Appeals (BIA), and the
federal courts, and the complex nature of immigration cases also cause many immigrants to
languish in detention for months or even years while they wait for their cases to be decided. 10

Who is subject to prolonged immigration detention?

DHS subjects three main categories of
individuals to prolonged detention without
bond hearings.
The first category consists of individuals, often
long-time legal residents of the United States,
whom the government claims are subject to
mandatory detention because they are allegedly removable on certain criminal grounds.
Some of the convictions at issue are very minor, such as shoplifting or turnstile jumping.11
ICE takes the position that the mandatory
detention statute includes individuals facing
prolonged, rather than only brief, detention.
The ACLU contends that this policy misapplies
the statute. The mandatory detention statute
does not require prolonged mandatory detention and, if it did, it would violate due process.

ACLU IRP Issue Brief: Prolonged Immigration Detention

Gary Anderson, a lawful permanent resident (LPR)
suffering from schizophrenia and mild mental retardation who has lived in the United States since he was a
teenager, spent two years in mandatory detention
while litigating his removal case. The government
sought to deport Mr. Anderson based on two misdemeanor convictions for simple possession of a controlled substance in the seventh degree, for which he
served a total of five days of imprisonment. Mr.
Anderson’s detention caused tremendous hardship to
him and his family, which includes
numerous U.S.
citizens and lawful permanent residents, and in particular his mother, who is also mentally ill and relied
on him for household help and emotional support.
Ultimately, in light of the strong equities in his case,
the IJ granted Mr. Anderson cancellation of removal—
a permanent form of immigration relief. During his
two years of detention, Mr. Anderson never received a
bond hearing because the government argued that he
was subject to mandatory detention. Mr. Anderson was
represented by attorneys from the Legal Aid Society of
New York and the Center for Constitutional Rights.

July 2009 Š 2

Luis Casas-Castrillon, a longtime LPR, spent seven
years in immigration detention challenging the government’s attempt to remove him. After fighting his
case all the way to the Ninth Circuit, an IJ ultimately
determined that he was not even deportable, terminated his proceedings, and restored him to lawful permanent residency. Though prior to his imprisonment
Mr. Casas-Castrillon had a strong employment history,
having worked in financial services and the Census
Bureau, and strong ties to family and community in the
United States, his lengthy incarceration has left his life
in ruins. During his seven years of detention, Mr.
Casas-Castrillon never received a bond hearing to determine if his detention was necessary. Instead, the
only review he received was a single custody review
that summarily deemed him a flight risk, misstated his
criminal history, and erroneously asserted that he had
received a personal interview regarding his detention.
The government was finally ordered to provide him a
bond hearing only after his habeas petition—filed with
the assistance of Federal Defenders—was granted by
the Ninth Circuit.

Second, DHS detains many individuals pending
judicial review of their removal orders in the
federal courts of appeals. Detention can span
months and years while detainees wait for
courts of appeals to work through backlogs
and decide their cases. 12 Notwithstanding the
merits of their cases, or how long their
detention extends, ICE takes the position that
these individuals are not entitled to any
independent review of their detention by an IJ.
Instead, all they receive are perfunctory and
“rubber stamp” custody reviews by ICE itself
that routinely deny release without any
meaningful assessment of whether an
individual’s detention is even justified. These
custody reviews lack basic due process
minimums in that they are non-adversarial;
conducted by ICE, which has an institutional
investment in detention and removal, rather

than a neutral decision-maker such as an IJ; and place the burden on the individual to justify
release rather than on the government to justify continued detention. The ACLU contends
that this policy is unlawful. Due process principles dictate that detention statutes cannot authorize prolonged detention without meaningful review.
The third category consists of individuals
who are detained upon arrival to the United
States, including asylum seekers who have
established a “credible fear” of persecution,
and lawful permanent residents (LPR’s) with
longstanding ties to the United States who
are returning from brief trips abroad. DHS
takes the position that, pursuant to current
regulations, an IJ is precluded from
reviewing ICE’s decision to detain such
individuals, no matter how long such
detention lasts. 13 The ACLU contends that
the statute does not authorize the prolonged
detention of these individuals without
adequate procedures and would violate due
process if it did so.

Saluja Thangaraja fled the brutal beatings and torture
that she suffered in a prison camp during the Sri Lankan
civil war only to endure more than four years of immigration detention. In 2004, the Ninth Circuit granted Ms.
Thangaraja withholding of removal and found her eligible for asylum, concluding that the immigration judge
and the BIA’s previous rejection of her claims lacked a
“reasonable basis in law and fact.” Despite this reprimand, the government continued to doggedly pursue Ms.
Thangaraja’s removal, appealing the IJ’s subsequent
grant of asylum and detaining her throughout this process. Ms. Thangaraja finally gained her freedom in March
2006 only after the ACLU of Southern California filed a
habeas petition for her release.

Victor Molina de la Villa, an LPR since 1980, was detained by ICE while returning from a brief trip to Colombia in
2002 on the basis of a single, decade-old conviction. Mr. Molina, a former serviceman in the U.S. Navy with a U.S.
citizen wife and three children, had no other criminal history. Nonetheless, he was detained by ICE for two and a
imposed
half years until he ultimately won release through a petition for habeas corpus. His imprisonment
tremendous hardship on his family, ultimately leading them to lose their home. Since winning his release three
years ago, Mr. Molina has lived under minimal conditions of supervision with no violations.

ACLU IRP Issue Brief: Prolonged Immigration Detention

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Notably, only approximately 16 percent of
immigration detainees are represented by
counsel, 16 and the often remote location of
their incarceration and the complexity of the
immigration laws makes it difficult for them
to pursue their cases.
Prolonged detention also has perverse policy
effects. Individuals with the strongest
challenges to removability or claims to
immigration relief are the most likely to fight
their cases and thus face the greatest risk of
prolonged imprisonment. The prospect of
continued detention coerces many of them to
abandon their meritorious claims to stay in
the United States.15

Ms. G-Z*, a nineteen-year-old woman from Colombia
was abducted twice by members of the Revolutionary
Armed Forces of Colombia (FARC)—a leftist guerilla
insurgent group—as a result of her association with
military officers and policemen. After a third kidnapping in 2006, the young woman fled to the United States
in search of refuge. She arrived at Newark Liberty International airport, where she was arrested and detained in New Jersey. Though the IJ found her testimony credible, the judge concluded that she did not
meet the definition of a refugee. ICE ignored her request for release on parole while her appeal was pending, despite a diagnosis for anxiety and depression that
was aggravated by her detention. In January 2008—
after 17 and a half months in detention—Ms. G-Z
decided to accept deportation, “averr[ing] that despite
the fact that her ‘fear of persecution is as strong as ever
[,]’ the detention was . . . ‘affecting me physically and
destroying me mentally’ and . . . served as a daily and
unwelcome reminder of the indignity of detention at the
hands of the FARC.” After her deportation, the Third
Circuit Court of Appeals found that she had a wellfounded fear of future persecution.

How many people are subject to prolonged immigration detention?
Unfortunately, we do not yet have comprehensive data on the number of individuals subjected
to prolonged immigration detention while continuing to challenge their removal. While ICE
reported an average detention stay of 37 days in 2007 16, this number is significantly skewed
by the number of Mexican nationals subject to expedited removal—a fast-track procedure
that allows immigration officers to issue removal orders with no hearing or review by an
IJ—at the Southern border. 17 It has long been recognized that many
immigrants are detained for months or even years as they go through proceedings that will determine whether
or not they are eligible to remain in the United States.
A national “snapshot” of a single day of ICE detention obtained by the Associated Press
provides some information on the scope of prolonged detention. 18 On the evening of January
25, 2009, at least 4,170 individuals, and possibly more, had been subject to detention for six
months or longer, and 1,334 of those individuals had been subjected to detention for one year
or longer. In extreme cases, some individuals had been detained as long as five, nine, or, in
one case, 15 years.
Of these individuals, 2,362 persons were still fighting their removal cases before the
immigration courts. Moreover, many of the 1,808 detainees identified as having final orders
of removal were likely seeking review of those removal orders in federal court. (The ICE
statistics do not indicate whether a removal order was stayed pending such federal court
review.) ICE statistics for fiscal year 2006 also indicate that at least 1,559 asylum seekers
were detained for more than 6 months. 19
*Note: Name redacted in light of the risk of persecution that the individual faces in Columbia.

ACLU IRP Issue Brief: Prolonged Immigration Detention

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Where are individuals facing prolonged immigration detention?
The following chart provides a state-by-state breakdown showing the location of individuals
subject to detention for six months or longer. Information about specific facilities, along with
the database as a whole, is available upon request.

State
AL

Prolonged Detainees Without a
Final Removal Order
52

Prolonged Detainees With a
Final Removal Order
82

AZ
CA
CO
FL
GA
HI
IA
IL
IN
KS
KY
LA
MA
ME
MD
MI
MN
MO
ND
NE
NH
NJ
NM
NV
NY
OH
OK
OR
PA
SC
TX
UT
VA
WA
WI
Total

419
354
17
179
50
1
2
21
5
0
5
41
91
4
10
21
6
3
0
7
0
130
40
7
66
17
1
1
88
10
553
7
55
94
5
2,362

173
253
11
169
33
3
1
21
2
3
8
118
84
1
23
14
13
6
5
7
5
99
25
12
96
14
5
0
104
13
300
5
47
51
2
1,808

ACLU IRP Issue Brief: Prolonged Immigration Detention

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Why is prolonged immigration detention unlawful?
Prolonged immigration detention deprives individuals of their liberty without a sufficient
justification and adequate procedural safeguards. In Zadvydas v. Davis, 533 U.S. 678 (2001),
the U.S. Supreme Court recognized that “[f]reedom from imprisonment—from Government
custody, detention, or other forms of physical restraint—lies at the heart of the liberty that
[the Due Process] Clause protects.” For this reason, the Court held that detention violates
due process unless it is reasonably related to its purpose. Due process requires a sufficiently
strong special justification for detention that outweighs its significant deprivation of liberty as
well as “strong procedural protections.” 20 As detention becomes prolonged, the deprivation
of liberty becomes greater, requiring an even stronger justification and more rigorous
procedural protections. 21 Yet the government subjects thousands of individuals to detention
for prolonged periods of time without a sufficient justification or adequate procedural review.
The Immigration and Nationality Act does not expressly authorize prolonged detention
without adequate procedures. Consequently, a number of courts in cases brought by the
ACLU have construed the statute to require a bond hearing where detention has become
unreasonably prolonged and thereby avoid the serious due process concerns that would
otherwise be raised by prolonged detention without adequate review.22

Why is prolonged immigration detention bad public policy?
Prolonged immigration detention is also bad public policy for a number of reasons:
Unfair: prolonged immigration detention is profoundly unfair. Prolonged detention
forces many immigrants fighting the government’s efforts to remove them to choose between being locked up indefinitely and giving up their meritorious immigration cases.

•

Perverse Effects: prolonged detention has perverse effects in that individuals with the
strongest challenges to removal are most likely to fight their cases and thus face the
greatest risk of lengthy imprisonment.

•

Arbitrary and Unnecessary: prolonged immigration detention is often unnecessary
given that many detainees pose neither a flight risk nor a danger to the community and
also have substantial challenges to their removal. The lack of sufficient procedures
means that the government makes no adequate determination about whether detention
is justified. Where individuals do pose a flight risk such that some supervision is necessary, alternatives to detention—such as curfews or electronic monitoring—are often
more than sufficient to ensure appearance for removal proceedings.

•

Costly: prolonged immigration detention places significant and unnecessary financial
burdens on the government as the daily cost of detention amounts to approximately $141
per day. 23

•

Hardship to Families: prolonged immigration detention creates hardship for families,
many of whose members are U.S. citizens or otherwise lawfully residing in the United
States, and who are unnecessarily deprived of financial and emotional support by their
loved ones’ imprisonment.

•

ACLU IRP Issue Brief: Prolonged Immigration Detention

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What are possible government solutions?
Given the serious due process and public policy concerns raised by prolonged immigration
detention, the government can and should implement several immediate reforms to
significantly reduce the use of arbitrary and unnecessary imprisonment; bring cost-savings
for the government; and alleviate the hardship that prolonged detention imposes on
immigrants and their families:
Provide Adequate Review. The government should take the minimal step of providing
for independent and impartial review of all ICE detention decisions (e.g., bond hearings
before an IJ) except where detention is clearly mandated by statute. Such review should
be provided to all individuals detained for more than six months, the period of time
deemed presumptively reasonable for effectuating removal, and in excess of the period
of time typically necessary to conclude removal proceedings.

•

Increase Alternatives to Detention. For those individuals who cannot be released on
bond, either because their detention is mandated by statute or because they would
otherwise pose too great a flight risk, the government should consider their release
under other forms of custody such as curfews or electronic monitoring that are
significantly less costly and create less hardship to their families.

•

Apply Reasonable Interpretation of Federal Law. Finally, the government should also
abandon its overly broad interpretations of the mandatory detention statute and stop
applying it against individuals with bona fide challenges to removal and individuals who
were released from criminal custody for old offenses.

•

The ACLU is currently pursuing all these solutions through litigation and administrative and
legislative advocacy.

For more information on prolonged detention and IRP’s work in this area, please contact Judy
Rabinovitz, IRP Deputy Director, at 212-549-2618 or jrabinovitz@aclu.org.

ACLU IRP Issue Brief: Prolonged Immigration Detention

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See, e.g., Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003); Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005); Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir.
2006); Casas-Castrillon v. Dep't of Homeland Security, 535 F.3d 942 (9th Cir. 2008); Wilks v. U.S. Dep’t Homeland Security, No. 07-2171, 2008 WL
4820654 (M.D. Pa. Nov. 3, 2008).
1

2

Office of the Inspector General, U.S. Department of Justice, Audit Report 97-05 (1/97), Immigration and Naturalization Service Contracting for
Detention Space, Jan. 1997, at 2.
3
Testimony of the Honorable Janet Napolitano, Secretary, U.S. Deparment of Homeland Security, before the Senate Judiciary Committee, May 6,
2009.

U.S. Government Accountability Office, Alien Detention Standards: Observations on the Adherence to ICE’s Medical Standards in Detention Facilities, June 4, 2008, at 1.
4

Testimony of James T. Hayes, Jr., Director, Office of Detention and Removal Operations, “Hearing on Health Services for Detainees in ICE Custody,” before the House Appropriations Committee Subcommittee on Homeland Security, Mar. 3, 2009.
5

6

See INA § 236(c); 8 U.S.C. § 1226(c).

7

Demore, 538 U.S. at 513 (emphasis added).

8

See Matter of Joseph, 22 I&N Dec. 660 (BIA 1999).

9

See Matter of Saysana, 24 I&N Dec. 602 (BIA 2008); Matter of Rojas, 23 I&N Dec. 117 (BIA 2001).

10
See, e.g., Brad Heath, Immigration courts face huge backlog, USA TODAY, Mar. 29, 2009 (reporting, pursuant to review of immigration court
dockets from 2003 to present, that “nearly 90,000 people accused of being in the United States illegally waited at least two years for a judge to
decide whether they must leave” and that 14,000 “cases took more than five years to decide and a few that took more than a decade.”).

For example, in 2005, according to the Office of Immigration Statistics, 56% of criminal convictions forming the basis for deportations were
non-violent drug or illegal reentry crimes; an additional 14.6% were non-specified but non-violent crimes. See, e.g., Mary Dougherty, Denise
Wilson, and Amy Wu, U.S. Department of Homeland Security, Office of Immigration Statistics, Immigration Enforcement Actions: 2005, Table 4,
November 2006, at 5; see also Human Rights Watch, Forced Apart: Families Separated and Immigrants Harmed by United States Deportation Policy
(July 16, 2007). In a more recent report analyzing enforcement data from 1997 to 2007, HRW found that some of the most common crimes for
which people were deported were relatively minor offenses, such as marijuana and cocaine possession or traffic offenses. Among legal
immigrants who were deported, 77 % had been convicted for such nonviolent crimes. Human Rights Watch, Forced Apart (By the Numbers): NonCitizens Deported Mostly for Nonviolent Offenses (Apr. 15, 2009).
11

12

Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008).

13

See 8 C.F.R. § 1003.19(h)(2)(i)(B).

14
According to the federal Executive Office of Immigration Review, between October 1, 2006, and September 20, 2007, approximately 84
percent of detained respondents who completed immigration court proceedings were unrepresented. Nina Siulc, Zhifen Cheng, Arnold Son, and
Olga Byrne, Improving Efficiency and Promoting Justice in the Immigration System: Lessons from the Legal Orientation Program, Report Summary
(Vera Institute of Justice, May 2008).

15

See, e.g., Gomez-Zuluaga v. AG of the United States, 527 F.3d 330, 339 (3rd Cir. 2008).

16

GAO, Alien Detention Standards, supra note 4.

17

See INA § 235; 8 U.S.C. § 1225.

18

See Roberts, Michelle, AP Impact: Immigrants face detention, few rights, Wash. Post. Mar. 13, 2009.

19

Human Rights First, U.S. Detention of Asylum Seekers: Seeking Protection, Finding Prison (Apr. 2009), at 39.

20

Zadvydas, 533 U.S. at 690-91.

21

See Kansas v. Hendricks, 521 U.S. 346, 368 (1997).

See, e.g., Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005); Casas-Castrillon v. Dep’t of Homeland Security, 535 F.3d 942, 950 (9th Cir. 2008);
Wilks v. U.S. Dep’t Homeland Security, No. 07-2171, 2008 WL 4820654, at *2 (M.D. Pa. Nov. 3, 2008); Scarlett v. U.S. Dep’t Homeland Security, --F.Supp.2d ---, 2009 WL 2025336 (W.D.N.Y. 2009); Occelin v. ICE, No. 09-00164, 2009 WL 1743742 (M.D. Pa. June 17, 2009).
22

23

See Roberts, Michelle, AP Impact: Immigrants face detention, few rights, Wash. Post. Mar. 13, 2009.

24

See, e.g., ACLU of Massachusetts, Detention and Deportation in the Age of ICE: Immigrants and Human Rights in Massachusetts (Dec. 2008).

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