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INDEFINITE DETAINEES
The Need
Thousands of noncitizens under removal
(deportation) orders have been imprisoned
for months or even years in the United
States because their home countries have
refused to take them back.
CLINIC's Response
CLINIC lawyers across the country
represent indefinite detainees,
working to return them to their U.S.
families under government-
supervised release until they can
be removed from the United States.
In 2005
In early January, the Supreme Court decided Clark v. Martinez, a case holding that
individuals such as Mariel Cubans could not be held indefinitely after being ordered
deported, if their countries refused to accept their return. Following the decision,
CLINIC co-hosted a conference call on January 24th to engage practitioners from
across the country on providing services to Mariels in light of the Supreme Court
case. CLINIC worked particularly closely with affiliates in New Orleans and Miami on
service provision for released Mariels, as the government released dozens of indigent
elderly Mariels from Louisiana detention facilities onto the New Orleans streets with
no provision for securing their travel to family members in Miami.
CLINIC publications on Mariels and other indefinite detainees supported advocacy
efforts across the country on behalf of indefinites and garnered significant media
attention. CLINIC’s advocacy staff compiled a detailed set of charts on the location of
Mariels and, for the largest states of Mariel detention, the distance and drive time from
major population centers to the detention facilities. Similar information was compiled
for non-Cuban “indefinites.” Some of these statistics were featured in a graphic for a
New York Times front-page Saturday-edition story on indefinite detainees in June.
Approximately 962 detainees currently are held in “indefinite” detention
In early September, CLINIC’s third comprehensive report on indefinite detention was
published in an immigration practitioner publication. The report focused on the actual
performance of a government program designed to process indefinite detainees for
supervised release after they have been in detention for 90 days. The report
concluded that in practice release procedures vary vastly across the country’s
hundreds of detention facilities. Little information about how to navigate the system is
provided to detainees and their family members, leaving indigent unrepresented
detainees vulnerable to long-term detention. In many areas, it is necessary to bring
federal court litigation to secure a detainee’s supervised release.
CLINIC’s report was cited in a Los Angeles Times story and in a front-page article in
the Houston Chronicle. The Baltimore, MD, National Public Radio affiliate also
interviewed CLINIC staff for an indefinite detention analysis story. Plaintiffs in ongoing
Chicago-based class-action litigation used CLINIC’s analysis on release procedures.
In addition, an auditor in the Office of Inspector General in the DHS is studying CLINIC’
s conclusions, ostensibly in connection with an internal analysis of government
release consideration procedures.
CLINIC continues efforts to improve legal assistance for Mariel Cubans and other
indefinite detainees who must press the government to review their cases. CLINIC,
given its limited resources, can only provide a limited amount of direct representation
to low-income indefinite detainees. In 2005, CLINIC provided legal information
workshops to 72 indefinite detainees, and represented 3 detainees in applications for
release to both administrative authorities and federal courts.
The Need
Thousands of noncitizens under removal
(deportation) orders have been imprisoned
for months or even years in the United
States because their home countries have
refused to take them back.
CLINIC's Response
CLINIC lawyers across the country
represent indefinite detainees,
working to return them to their U.S.
families under government-
supervised release until they can
be removed from the United States.
In 2005
In early January, the Supreme Court decided Clark v. Martinez, a case holding that
individuals such as Mariel Cubans could not be held indefinitely after being ordered
deported, if their countries refused to accept their return. Following the decision,
CLINIC co-hosted a conference call on January 24th to engage practitioners from
across the country on providing services to Mariels in light of the Supreme Court
case. CLINIC worked particularly closely with affiliates in New Orleans and Miami on
service provision for released Mariels, as the government released dozens of indigent
elderly Mariels from Louisiana detention facilities onto the New Orleans streets with
no provision for securing their travel to family members in Miami.
CLINIC publications on Mariels and other indefinite detainees supported advocacy
efforts across the country on behalf of indefinites and garnered significant media
attention. CLINIC’s advocacy staff compiled a detailed set of charts on the location of
Mariels and, for the largest states of Mariel detention, the distance and drive time from
major population centers to the detention facilities. Similar information was compiled
for non-Cuban “indefinites.” Some of these statistics were featured in a graphic for a
New York Times front-page Saturday-edition story on indefinite detainees in June.
Approximately 962 detainees currently are held in “indefinite” detention
In early September, CLINIC’s third comprehensive report on indefinite detention was
published in an immigration practitioner publication. The report focused on the actual
performance of a government program designed to process indefinite detainees for
supervised release after they have been in detention for 90 days. The report
concluded that in practice release procedures vary vastly across the country’s
hundreds of detention facilities. Little information about how to navigate the system is
provided to detainees and their family members, leaving indigent unrepresented
detainees vulnerable to long-term detention. In many areas, it is necessary to bring
federal court litigation to secure a detainee’s supervised release.
CLINIC’s report was cited in a Los Angeles Times story and in a front-page article in
the Houston Chronicle. The Baltimore, MD, National Public Radio affiliate also
interviewed CLINIC staff for an indefinite detention analysis story. Plaintiffs in ongoing
Chicago-based class-action litigation used CLINIC’s analysis on release procedures.
In addition, an auditor in the Office of Inspector General in the DHS is studying CLINIC’
s conclusions, ostensibly in connection with an internal analysis of government
release consideration procedures.
CLINIC continues efforts to improve legal assistance for Mariel Cubans and other
indefinite detainees who must press the government to review their cases. CLINIC,
given its limited resources, can only provide a limited amount of direct representation
to low-income indefinite detainees. In 2005, CLINIC provided legal information
workshops to 72 indefinite detainees, and represented 3 detainees in applications for
release to both administrative authorities and federal courts.
The outlook for indefinite detention:
In December, 2006 the U.S. House of
Representatives approved and sent to the
Senate legislation that would eliminate, among
other things, the possibility of supervised
release for Mariels, failed arriving asylum
seekers, and any noncitizen ordered deported
on the basis of a criminal conviction, no matter
how minor. If the Senate approves this
legislation without change, thousands of
detainees could spend five, ten, or more years
in indefinite detention with no possibility of
release.
CLINIC DOCUMENTS
Holper, Mary “How to Get Released from
Immigration Detention: Post-Order Custody
Reviews and Habeas Corpus Petitions for
Mariel Cubans in Massachusetts, New
Hampshire, Rhode Island, and Connecticut”
June, 2006
Kusuda, Hiroko and Mary Holper "How to Get
Out of Detention After You've Been Ordered
Deported: A Guide to Post-Order Custody
Reviews and Habeas Corpus for Immigration
Detainees and their Families" August, 2007
Zadvydas v. Davis
A Strong Precedent against Indefinite
Detention
On June 28, 2001, the United States Supreme
Court issued a landmark decision in Zadvydas
v. Davis, ruling that the government does not
have the power to hold noncitizens indefinitely
in these situations, and that the INS must
consider, on a case-by-case basis, supervised
release of detainees within a reasonable
period after the noncitizens are ordered
removed.
Under the Zadvydas decision, noncitizens who
do not pose a danger to the community, and
who have no significant likelihood of returning
to their countries in the foreseeable future,
should be released after no longer than six
months in INS custody.
Unfortunately, individualized INS reviews in
response Zadvydas have never operated
effectively. Most detainees do not receive
timely custody reviews and fewer are
released as a result of these determinations.
CLINIC has, with the generous support of the
Firedoll Foundation, tracked the limited success
of the Zadvydas-inspired INS review programs
in a series of reports, finding the programs to
be an empty promise for most indefinite
detainees.
Case Study
Salim Y. is typical of indefinite detainees
whose situations are exacerbated by post-
9/11 conditions. A 26-year-old Palestinian, Mr.
Y was born in Gaza and lived there until the
age of 10, when his family moved to Libya. Mr.
Y lived in a refugee camp in Libya for 14 years,
then flew to England, where he stowed away
on a ship bound for Canada and then the
United States. Upon reaching the United States,
he was placed in the Elizabeth Detention
Center in New Jersey. He appeared without a
lawyer before an Immigration Judge, who
denied him asylum in January 2001.
Mr. Y. had been in INS detention for years
following his final order of removal when
CLINIC encountered him. CLINIC's New Jersey-
based detention lawyer determined that
removal probably would be impossible in his
case, especially since he was an Arab Muslim
lacking documents. CLINIC sought Mr. Y's
release on an Order of Supervision, In the
spring of 2002, when that avenue, CLINIC
found him pro bono counsel who filed a
habeas corpus petition on his behalf, seeking
his release until the government locates a
country that is willing to accept him.
In December, 2006 the U.S. House of
Representatives approved and sent to the
Senate legislation that would eliminate, among
other things, the possibility of supervised
release for Mariels, failed arriving asylum
seekers, and any noncitizen ordered deported
on the basis of a criminal conviction, no matter
how minor. If the Senate approves this
legislation without change, thousands of
detainees could spend five, ten, or more years
in indefinite detention with no possibility of
release.
CLINIC DOCUMENTS
Holper, Mary “How to Get Released from
Immigration Detention: Post-Order Custody
Reviews and Habeas Corpus Petitions for
Mariel Cubans in Massachusetts, New
Hampshire, Rhode Island, and Connecticut”
June, 2006
Kusuda, Hiroko and Mary Holper "How to Get
Out of Detention After You've Been Ordered
Deported: A Guide to Post-Order Custody
Reviews and Habeas Corpus for Immigration
Detainees and their Families" August, 2007
Zadvydas v. Davis
A Strong Precedent against Indefinite
Detention
On June 28, 2001, the United States Supreme
Court issued a landmark decision in Zadvydas
v. Davis, ruling that the government does not
have the power to hold noncitizens indefinitely
in these situations, and that the INS must
consider, on a case-by-case basis, supervised
release of detainees within a reasonable
period after the noncitizens are ordered
removed.
Under the Zadvydas decision, noncitizens who
do not pose a danger to the community, and
who have no significant likelihood of returning
to their countries in the foreseeable future,
should be released after no longer than six
months in INS custody.
Unfortunately, individualized INS reviews in
response Zadvydas have never operated
effectively. Most detainees do not receive
timely custody reviews and fewer are
released as a result of these determinations.
CLINIC has, with the generous support of the
Firedoll Foundation, tracked the limited success
of the Zadvydas-inspired INS review programs
in a series of reports, finding the programs to
be an empty promise for most indefinite
detainees.
Case Study
Salim Y. is typical of indefinite detainees
whose situations are exacerbated by post-
9/11 conditions. A 26-year-old Palestinian, Mr.
Y was born in Gaza and lived there until the
age of 10, when his family moved to Libya. Mr.
Y lived in a refugee camp in Libya for 14 years,
then flew to England, where he stowed away
on a ship bound for Canada and then the
United States. Upon reaching the United States,
he was placed in the Elizabeth Detention
Center in New Jersey. He appeared without a
lawyer before an Immigration Judge, who
denied him asylum in January 2001.
Mr. Y. had been in INS detention for years
following his final order of removal when
CLINIC encountered him. CLINIC's New Jersey-
based detention lawyer determined that
removal probably would be impossible in his
case, especially since he was an Arab Muslim
lacking documents. CLINIC sought Mr. Y's
release on an Order of Supervision, In the
spring of 2002, when that avenue, CLINIC
found him pro bono counsel who filed a
habeas corpus petition on his behalf, seeking
his release until the government locates a
country that is willing to accept him.
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
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