ICE DETENTION REFORM: PRINCIPLES AND NEXT STEPS

Secretary Napolitano Announces New Immigration Detention Reform Initiatives

Department of Homeland Security (DHS) Secretary Janet Napolitano and U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton today announced a series of new initiatives as part of the Department’s ongoing immigration detention reform efforts to enhance the security and efficiency of ICE’s nationwide detention system while prioritizing the health and safety of detainees.

The reform efforts address the seven major components of the detention system outlined in a comprehensive review conducted by Dora Schriro, the former ICE Office of Detention Policy and Planning Director, over the past several months, focusing on greater federal oversight, specific attention to detainee care, and uniformity at detention facilities.

Core Principles to Guide Long-Term Efforts:

 ICE will prioritize efficiency throughout the removal process to reduce detention costs, minimize the length of stays and ensure fair proceedings;

 ICE will detain aliens in settings commensurate with the risk of flight and danger they

present;

 ICE will be fiscally prudent when carrying out detention reform;

 ICE will provide sound medical care; and

 ICE will ensure Alternatives to Detention (ATD) are cost effective and promote a high rate of compliance with orders to appear and removal orders.

One-Year Benchmarks:

Secretary Napolitano has also established one-year benchmarks for detention reform that will be completed by the end of fiscal year 2010:  Review contracts for all detention facilities to identify opportunities for improvement and move forward with renegotiation and termination of contracts as warranted.  Revise immigration detention standards to reflect the conditions appropriate for various immigration detainee populations; and  Issue two competitive bids for detention facilities that will reflect all five core principles of immigration detention reform.

Immediate Reforms:

Secretary Napolitano and Assistant Secretary John Morton announced the following reforms on Oct. 6. Implementation will begin immediately.

Each of these reforms are expected to be budget neutral or result in cost savings through reduced reliance on contractors to perform key federal duties and additional oversight of all contracts.

Population Management

• Effective immediately, ICE will create a library of contracts for all facilities with which ICE has active agreements and centralize all contracts under ICE headquarters’ supervision. At present, the Office of Acquisitions at ICE headquarters negotiates and manages only 80 of the more than 300 active contracts for detention facilities. The remaining contracts are overseen by disparate ICE field offices and the Office of the Federal Detention Trustee.
• Effective immediately, ICE will aggressively monitor and enforce contract performance in order to ensure contractors comply with terms and conditions—especially those related to conditions of confinement. When confronted with repeated contractual deficiencies, ICE will pursue all available avenues for remedying poor performance, including termination of contracts.
• Cost: In the long term, this effort is expected to yield cost savings and a better managed and more efficient contracting process, though these initiatives may require additional resources at headquarters.

Alternatives to Detention (ATD)

• This fall, ICE will submit to Congress a nationwide implementation plan for the Alternatives to Detention Program (ATD).
• ICE will develop an assessment tool to identify aliens suitable for ATD.
• ICE will continue to work with the Department of Justice to expedite the adjudication of ATD cases to reduce costs.
• Cost: ATD costs substantially less per day than detention: the most expensive form of ATD costs only $14 per day compared to the cost of detention, which varies per facility but can exceed $100 per day.

Detention Management

• Effective immediately, ICE will devise and develop a risk assessment and custody classification, which will enable detainees to be placed in an appropriate facility.
• On Oct. 30, following the first meeting of the detention advisory group, Assistant Secretary Morton will host an industry day and begin market research about utilizing converted hotels, nursing homes and other residential facilities as immigration detention facilities for non-criminal, non-violent populations.
• Cost: Such facilities that are commensurate with risk are anticipated to save money over the long term, pending a comprehensive assessment.

Beginning on October 1, 2009, there is a greater likelihood that returning Legal Permanent Residents (LPRs) with criminal convictions will be issued a Notice to Appear (NTA) at ports of entry versus a grant of deferred inspection. In addition, depending on the nature of the conviction, CBP staffing, and available detention bedspace, among other factors, it also is possible that more returning LPRs with criminal convictions will be detained. CBP confirmed, however, that deferred inspection for such returning LPRs is still an option. CBP explained that it modified its policy based on information reflecting that an appreciable percentage of those granted deferred inspection do not show up for such inspection. More guidance to the field will be forthcoming from CBP, but be aware of the likelihood of an increase in the number of LPRs being detained and/or issued NTAs at ports of entry. CBP confirmed that this policy already had been in place in Georgia and Florida.

Note that LPRs cannot be detained if they are in possession of evidence that proves that their conviction does not render them inadmissible pursuant to INA 212(a)(2).

The latest available data from the Justice Department show that during the first nine months of FY 2009 the government reported 67,994 new immigration prosecutions. If this activity continues at the same pace, the annual total of prosecutions will be 90,659 for this fiscal year. According to the case-by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC), this estimate is up 14.1 percent over the past fiscal year when the number of prosecutions totaled 79,431.

In Matter of Lamus, 25 I&N Dec. 61 (BIA 2009), the Board held that an IJ may not deny an otherwise properly filed motion to reopen under Matter of Velarde, 23 I&N Dec. 253 (BIA 2002), based solely on the fact that DHS opposed the motion. In Matter of Velarde, the BIA had set forth the factors to consider when adjudicating a motion to reopen to adjust status based on a marriage entered into after the commencement of proceedings but where the visa petition has not been adjudicated. The last factor is whether DHS opposed the motion. The government had argued that DHS’ opposition is dispositive. However, the Board rejected this argument and said that though DHS’s opposition should be considered, it does not preclude an IJ from exercising independent judgment. Prior to Matter of Lamus, three courts had similarly rejected the government’s contention that DHS’ opposition is dispositive. Melnitsenko v. Mukasey, 517 F.3d 42 (2d Cir. 2008); Sarr v. Gonzales, 485 F.3d 354 (6th Cir. 2007); Ahmed v. Mukasey, 548 F.3d 768 (9th Cir. 2008). Two courts, however, the Third and Fifth Circuits, had held that DHS can block a Velarde motion by opposing the motion. Bhiski v. Ashcroft, 373 F.3d 363 (3d Cir. 2004); Ramchandani v. Gonzales, 434 F.3d 337 (5th Cir. 2005). Given these court’s prior treatment of the issue, the Board and IJs can be expected to follow Matter of Lamus even in the Third and Fifth Circuits.