home | contact us | get involved | donate now
INDEFINITE DETENTION
Individuals with final orders of removal, who are from countries that refuse to accept
their return, can spend years in immigration detention, with no hope of release. Many
of these individuals entered the United States as refugees at young ages, and are from
countries to which the United States has no diplomatic ties. Because their governments
will not allow their return, they face indefinite detention in the custody of the U.S.
Department of Homeland Security (DHS). They are commonly referred to as "lifers" or
"indefinite detainees."
The Supreme Court has ruled that the U.S. government cannot indefinitely detain such
persons. In June 2001, in its decision in Zadvydas v. Davis, the Supreme Court stated
that the government could only hold people in custody beyond the statutorily defined
removal period of 90 days for the amount of time "reasonably necessary to bring about
the alien's removal from the United States." The Court found that six months from the
date of the final order was a sufficient time period to effectuate removal, and after that
time, if the DHS had not removed the individual, in order to continue detention, it needed
to show that there was a significant likelihood of removal in the reasonably
foreseeable future.
Under current law, after a non-citizen receives a final order of removal, the DHS has
90 days to effect his or her removal. If the DHS cannot remove the immigrant during
this time, he or she can be released from detention. However, this initial release
decision lies with local directors of U.S. Immigration & Customs Enforcement (ICE)
offices. The DHS frequently fails to remove or release individuals within the 90-day
period, and many immigrants with final orders of removal remain in detention well
beyond the 90-day removal period.
According to the regulations, at the 90-day mark, detained individuals with final orders
of removal are supposed to have a custody review, to determine whether or not their
detention will be continued. The custody review is conducted by the local ICE office.
After the initial custody review, cases of indefinite detainees are transferred to ICE
Headquarters, where they are supposed to be reviewed again at the six-month mark.
Several problems plague the local and headquarters post-order custody review
process. For example, some detainees never receive notice of their 90-day or
six-month custody reviews, and therefore do not have the opportunity to submit
documentation in support of their release. Others never receive local 90-day reviews,
and many do not receive timely headquarters reviews at the six-month mark.
Headquarters often issues decisions to continue detention that are based on faulty
reasoning and erroneous facts, ignore the law outlined by the Supreme Court in
Zadvydas v. Davis, or essentially "rubber stamp" the underlying local decision and fail
to provide any evidence of additional review. Frequently, the decisions ignore
documentation (including letters from the detained individual's consulate) that prove
that there is no significant likelihood of removal in the reasonably foreseeable future. In
other cases, the DHS has failed to present evidence of the likelihood of removal and
instead it inappropriately blames detainees for failing to facilitate their own removal.
As a result of the many problems surrounding the post-order custody review process,
many immigrants with final orders of removal often remain detained for periods of time
well beyond what the Supreme Court determined was permissible under the law.
Solutions
DHS must release individuals who cannot be removed in compliance with the
guidelines set forth by the Supreme Court in Zadvydas v. Davis. Individuals who
cannot be returned to their home countries within the foreseeable future should be
released as soon as that determination is made, and certainly no longer than six
months after the issuance of a final order. All indefinite detainees must have access to
timely and fair post-order custody reviews. Upon release, such individuals should be
released with employment authorization, so that they can immediately obtain
employment and become contributing members of the community. To address concerns
related to flight risk or dangerousness, the DHS should aggressively pursue
re-integration programs for indefinite detainees. Such programs would significantly
mitigate any risk of danger to the community or of flight, and are less costly than
detention. (1)
footnote
1. For more information see CLINIC, "The Needless Detention of Immigrants in the United
States," (pdf) at pp. 24-28, (August 2000).
Individuals with final orders of removal, who are from countries that refuse to accept
their return, can spend years in immigration detention, with no hope of release. Many
of these individuals entered the United States as refugees at young ages, and are from
countries to which the United States has no diplomatic ties. Because their governments
will not allow their return, they face indefinite detention in the custody of the U.S.
Department of Homeland Security (DHS). They are commonly referred to as "lifers" or
"indefinite detainees."
The Supreme Court has ruled that the U.S. government cannot indefinitely detain such
persons. In June 2001, in its decision in Zadvydas v. Davis, the Supreme Court stated
that the government could only hold people in custody beyond the statutorily defined
removal period of 90 days for the amount of time "reasonably necessary to bring about
the alien's removal from the United States." The Court found that six months from the
date of the final order was a sufficient time period to effectuate removal, and after that
time, if the DHS had not removed the individual, in order to continue detention, it needed
to show that there was a significant likelihood of removal in the reasonably
foreseeable future.
Under current law, after a non-citizen receives a final order of removal, the DHS has
90 days to effect his or her removal. If the DHS cannot remove the immigrant during
this time, he or she can be released from detention. However, this initial release
decision lies with local directors of U.S. Immigration & Customs Enforcement (ICE)
offices. The DHS frequently fails to remove or release individuals within the 90-day
period, and many immigrants with final orders of removal remain in detention well
beyond the 90-day removal period.
According to the regulations, at the 90-day mark, detained individuals with final orders
of removal are supposed to have a custody review, to determine whether or not their
detention will be continued. The custody review is conducted by the local ICE office.
After the initial custody review, cases of indefinite detainees are transferred to ICE
Headquarters, where they are supposed to be reviewed again at the six-month mark.
Several problems plague the local and headquarters post-order custody review
process. For example, some detainees never receive notice of their 90-day or
six-month custody reviews, and therefore do not have the opportunity to submit
documentation in support of their release. Others never receive local 90-day reviews,
and many do not receive timely headquarters reviews at the six-month mark.
Headquarters often issues decisions to continue detention that are based on faulty
reasoning and erroneous facts, ignore the law outlined by the Supreme Court in
Zadvydas v. Davis, or essentially "rubber stamp" the underlying local decision and fail
to provide any evidence of additional review. Frequently, the decisions ignore
documentation (including letters from the detained individual's consulate) that prove
that there is no significant likelihood of removal in the reasonably foreseeable future. In
other cases, the DHS has failed to present evidence of the likelihood of removal and
instead it inappropriately blames detainees for failing to facilitate their own removal.
As a result of the many problems surrounding the post-order custody review process,
many immigrants with final orders of removal often remain detained for periods of time
well beyond what the Supreme Court determined was permissible under the law.
Solutions
DHS must release individuals who cannot be removed in compliance with the
guidelines set forth by the Supreme Court in Zadvydas v. Davis. Individuals who
cannot be returned to their home countries within the foreseeable future should be
released as soon as that determination is made, and certainly no longer than six
months after the issuance of a final order. All indefinite detainees must have access to
timely and fair post-order custody reviews. Upon release, such individuals should be
released with employment authorization, so that they can immediately obtain
employment and become contributing members of the community. To address concerns
related to flight risk or dangerousness, the DHS should aggressively pursue
re-integration programs for indefinite detainees. Such programs would significantly
mitigate any risk of danger to the community or of flight, and are less costly than
detention. (1)
footnote
1. For more information see CLINIC, "The Needless Detention of Immigrants in the United
States," (pdf) at pp. 24-28, (August 2000).
415 Michigan Ave., NE
Suite 150
Washington, DC 20017
202.635.2556
202.635.2649 fax
media inquiries:
e-mail me
(202) 635-5810
Suite 150
Washington, DC 20017
202.635.2556
202.635.2649 fax
media inquiries:
e-mail me
(202) 635-5810
Advocacy Topics
Alternatives to Detention
Asylees and Refugees
Asylum-Seekers
Barriers to Family Reunification
Board of Immigration Appeals
Border Enforcement and Immigrant
Deaths
Citizenship
Consular Identification Documents
Detention
Department of Homeland Security
Driver's License Restrictions
Immigration Processing Delays
Indefinite Detention
Legalization
Local Law Enforcement
Mandatory Detention
National Security and Immigration
Unaccompanied Minors
Undocumented Immigrants:
State/Local Initiatives
Video Conferencing
Voter Registration
Alternatives to Detention
Asylees and Refugees
Asylum-Seekers
Barriers to Family Reunification
Board of Immigration Appeals
Border Enforcement and Immigrant
Deaths
Citizenship
Consular Identification Documents
Detention
Department of Homeland Security
Driver's License Restrictions
Immigration Processing Delays
Indefinite Detention
Legalization
Local Law Enforcement
Mandatory Detention
National Security and Immigration
Unaccompanied Minors
Undocumented Immigrants:
State/Local Initiatives
Video Conferencing
Voter Registration
NATIONAL PROGRAMS | LEGALIZATION | ADVOCACY | RELIGIOUS IMMIGRATION SERVICES | ADMINISTRATION & DEVELOPMENT | TRAINING & TECHNICAL SUPPORT
