Open Letter To Under Secretary Hutchinson: Due Process Post 9/11
September 10, 2004
Asa Hutchinson, Under Secretary
Border and Transportation Security
U.S. Department of Homeland Security
Washington, DC 20528
Dear Under Secretary Hutchinson:
We write in response to the Department of Homeland Security’s Border and Transportation Directorate’s issuance of “Guidance On ICE Implementation Of Policy And Practice Changes Recommended By The Department of Justice Inspector General” (DHS guidance). The DHS guidance is an important step towards reducing a repeat of some of the abuses that occurred immediately after September 11, 2001. While we very much appreciate your attention to these important issues and commend your efforts to refine existing procedures, we have several continuing concerns.
Detentions without Charge: The detention of persons without charges is one of the more troubling aspects of the 9-11 investigation. As revealed by the Department of Justice’s Inspector General Report on 9-11 Detainees (IG report), this occurred in great part because of a regulation issued by DOJ which not only expanded the time INS (now DHS) was given to charge an individual to 48 hours, but also created a broad exception - that in the event of an “emergency or other extraordinary circumstances,” a charging determination could be made within an “additional reasonable period of time.” The September 17, 2001 regulation does not define "extraordinary circumstances" or "reasonable period of time.”
The new DHS guidance takes a step in the right direction by formalizing a process for charging individuals within 48 hours. The DHS guidance also creates new definitions for “extraordinary circumstance” or “emergency,” for instance “[w]henever there is a compelling law enforcement need including, but not limited to, an immigration emergency resulting in the influx of large numbers of detained aliens that overwhelms agency resources and makes it unable to logistically meet the general servicing requirements.” However, a standard like “compelling law enforcement need” is broad enough to permit the same kinds of arbitrary arrests and detentions as occurred after 9-11. Detaining persons without charging them violates the Constitution and goes beyond the very limited exception of the Patriot Act.
DHS should establish a firm requirement that a non-citizen be charged within 48 hours of his arrest or detention. Where a charge cannot be levied within the 48 hour period, the non-citizen must be brought immediately before a judge for determination of whether there exists a legitimate exception for limited continued detention without charge.
Notice of Charges: Timely service of notice is a basic tenet of due process that applies to all persons facing arrest under U.S. laws. However, neither the Immigration and Nationality Act (INA) nor the regulations require that the Notice to Appear (NTA or charging document) be served on an arrested or detained non-citizen or filed with the immigration court (Executive Office for Immigration Review or EOIR) within a specified timeframe.
The new DHS guidance takes an important step by requiring that individuals be served an NTA within 72 hours of their arrest. However, the DHS still allows for prolonged delay of service in the event of an “extraordinary circumstance” or “emergency.” Furthermore, the DHS guidance does not specify when NTAs should be filed with immigration court. Experience shows that there are often lengthy delays in filing the NTAs with the immigration court, which raises serious due process concerns since most detainees are not even scheduled for an immigration hearing until the NTA is filed with the immigration court. Failure to timely file NTAs with the immigration court can lead to additional rights violations by preventing counsel and family members from locating their client or relative or preparing adequately for the client or relative’s hearing.
DHS should establish a firm requirement that NTAs are filed with the immigration court and served on a non-citizen within 48 hours of his arrest or detention. Where an NTA cannot be filed with the immigration court and served on a non-citizen within 48 hours, the non-citizen must be brought immediately before a judge for determination of whether there exists a legitimate exception for delayed service of notice. Finally, DHS must require that detainees who have been served or charged are timely scheduled for their court hearings. This will ensure that cases proceed in a timely manner, and lessen the possibility of prolonged detention without charge.
Secret Arrests and Hearings: The unprecedented secrecy surrounding the arrests, detention, and deportation hearings of the September 11 detainees contributed to the abuses identified in the IG report. This regime of secrecy continues today: The Justice Department has refused to release the names of the detainees or to prohibit the blanket closure of deportation hearings. Such secrecy blocks Congressional and public scrutiny of the kinds of abuses described in the IG report. The DHS guidance does not address the issue of blanket closures of deportation hearings.
DHS should reaffirm that immigration proceedings are presumptively open to the public, and allow limited exceptions only for discrete portions of hearings and only upon a case-by-case basis to preserve the confidentiality of asylum applications or when necessary to protect national security by preventing the disclosure of classified information or the disclosure of the identity of a confidential informant. Decisions to close any immigration-related hearing, or any portion thereof, should only be made on a case-by-case basis by a judge.
DHS should release the names of the so-called “Special Interest Detainees” who were arrested and deported in secret following the September 11th attacks. DHS should also issue a statement that these individuals were arrested and deported for being in violation of the immigration laws and not for involvement in terrorism and that no assumptions should be made about them because of these circumstances. DHS should make a public commitment to the American people that individuals will not be arrested in secret in the future.
Independent Review of Detainees: The new DHS guidelines wisely require staff to make their own legal decisions about certain immigration practices -- specifically, “ICE personnel and attorneys are directed to independently review the individual circumstances of each case in which the FBI requests detention solely based upon information regarding an alien’s possible association with terrorism.” We hope this new procedure as implemented will result in ICE personnel and attorneys making individualized recommendations regarding bond and detention as opposed to the blanket style approach used by FBI and DOJ during the September 11th investigation.
Consistent with the guidelines in support of independent review, DHS should oppose all blanket decisions to deny bond or set unreasonably high bonds. DHS should prohibit blanket orders of detention or removability or arbitrary extensions of the removal period. As this important new DHS guidance properly notes, “independent and individualized assessment is essential because ICE attorneys are officers of the court and must have confidence in the representations made to the court.” When the DHS or any other agency seeks the detention of a non-citizen under the immigration laws based upon possible associations with terrorism, it must follow those procedures set forth in the Patriot Act or present evidence to the judge establishing either danger of flight or danger to the community specific to that individual.
DHS Post Order Custody Review: The DHS Guidance prudently reminds all Field Officer Directors of the importance of "ensuring the integrity of the Post Order Custody Review (POCR) process," noting that "the POCR process is under review for possible change that will streamline the process and allow for much quicker response by the field offices." Generally, we continue to see numerous cases where this process is not followed; regulations are disregarded; the U.S. Supreme Court’s June 2001 ruling, Zadvydas v. Davis, is ignored; and the government’s scarce resources are used to continue detention of individuals it is unable to remove and should release. The result is the unlawful indefinite detention of people with final orders of removal.
The DHS Guidance does not discuss POCRs with respect to the September 11th detainees. Last June 2003, the IG found that INS (now DHS) failed to properly conduct POCRs of detainees held for more than 90 days after receiving a removal order. This was due in large part to a DOJ policy at the time that prevented INS from removing detainees until they were cleared by FBI. The IG found that INS “should have conducted the custody reviews, both because they are required by regulation and because such reviews may have alerted Department officials even more directly that a number of aliens were being held beyond the 90-day removal period.”
DHS should timely conduct POCRs and ensure that the regulations and the Zadvydas v. Davis standard are followed. In keeping with your commitment to independent review of cases, DHS should not keep detainees who have been ordered removed in immigration detention based on FBI directives to hold them. We would welcome the opportunity to meet further with you to outline the specific concerns which need to be addressed.
Thank you for our consideration and openness to discussing these important issues with us.
American-Arab Anti-Discrimination Committee
American Friends Service Committee
American Immigration Lawyers Association
Amnesty International USA
Arab American Institute
Association of Pakistani Physicians of North America
Bill of Rights Defense Committee
Catholic Legal Immigration Network, Inc.
Center for National Security Studies
Council on American-Islamic Relations
Human Rights Watch
Immigration and Refugee Services of America
Lutheran Immigration and Refugee Service
National Asian Pacific American Legal Consortium
National Coalition for Asian Pacific American Community Development
National Council of La Raza
National Immigrant Solidarity Network
National Immigration Forum
National Immigration Project of the National Lawyers Guild
National Iranian American Council
National Korean American Service & Education Consortium
National South Asian Bar Association
People For the American Way
Sikh Mediawatch and Resource Task Force
American-Arab Anti-Discrimination Committee, Los Angeles/Orange County Chapter (Los Angeles, CA)
American-Arab Anti-Discrimination Committee, Sacramento Chapter (Sacramento, CA)
American-Arab Anti-Discrimination Committee, San Diego Chapter (San Diego, CA)
American-Arab Anti-Discrimination Committee, San Francisco Chapter (San Francisco, CA)
American Muslims of Puget Sound (Lynnwood, WA)
Arab American Community Coalition (Seattle, WA)
Arab Center of Washington (Seattle, WA)
Arab Community Center for Economic and Social Services (Dearborn, MI)
Asian American Legal Defense and Education Fund (New York, NY)
Asian Law Alliance (San Jose, CA)
Asian Law Caucus (San Francisco, CA)
Asian Pacific American Legal Center of Southern California (Los Angeles, CA)
Big Sky Civil Liberties Committee (Helena, MT)
Bill of Rights Defense Committee of Greater Dallas (Dallas-Ft. Worth Metroplex, TX)
Bill of Rights Defense Committee-Wichita Falls (Wichita Falls, TX)
Bridgeport Young Democrats (Bridgeport, CT)
Cape Cod Bill of Rights Defense Committee (Eastham, MA)
Central American Resource Center (Los Angeles, CA)
Clatsop County Bill of Rights Defense Committee (Astoria, OR)
Coalition for Humane Immigrant Rights of Los Angeles (Los Angeles, CA)
Council on American-Islamic Relations, Arizona Chapter (Phoenix, AZ)
Council on American-Islamic Relations, Michigan Chapter (Lathrup Village, MI)
Council on American-Islamic Relations, San Antonio Chapter (San Antonio, TX)
Durham Bill of Rights Defense Committee (Durham, NC)
East Bay Asian Local Development Corporation (Oakland, CA)
Florida Immigrant Advocacy Center (Miami, FL)
Freedom of Information Center, University of Missouri School of Journalism (Columbia, MO)
Guyana Youth Corp (New York, NY)
Human Rights, Education and Law Project (Newark, NJ)
Immigrant Legal Resource Center (San Francisco, CA)
Immigrant Rights Network of Iowa & Nebraska (Des Moines, IA & Omaha, NE)
Korean American Resource & Cultural Center (Chicago, IL)
Korean Resource Center (Los Angeles, CA)
Love Sees No Borders (Sunnyvale, CA)
Massachusetts Immigrant and Refugee Advocacy Coalition (Boston, MA)
Migration & Refugee Services Diocese of Trenton (Trenton, NJ)
Nebraska Appleseed Center for Law in the Public Interest (Lincoln, NE)
New York City Bill of Rights Defense Campaign (New York, NY)
New York Civil Liberties Union, Capital Region Chapter (Albany, NY)
New York Immigration Coalition (New York, NY)
Northwest Montana Coalition for the Support of the Constitution (Whitefish, MT)
Pittsburgh Bill of Rights Defense Campaign (Pittsburgh, PA)
Rocky Mountain Peace and Justice Center (Boulder, CO)
San Marcos Bill of Rights Defense Committee (San Marcos, TX)
Save Our Rights Coalition of the Tri-Valley (Tri-Valley, CA)
Service Employees International Union Local 105 (Denver, CO)
South Asian Bar Association of Northern California (Cupertino, CA)
Southwest Colorado Peace & Justice Coalition (Durango, CO)
Texas Lawyers’ Committee for Civil Rights (San Antonio, TX)
The Midwest Immigrant & Human Rights Center, A program of Heartland Alliance for Human Needs & Human Rights (Chicago, IL)
The Multiracial Activist (Alexandria, VA)
The Rutherford Institute (Charlottesville, VA)
Tri-Valley CAREs, Communities Against a Radioactive Environment (Livermore, CA)
Washington Lawyers' Committee for Civil Rights and Urban Affairs (Washington, DC)
Women For: Orange County (Irvine, CA)
Young Korean-American Service & Education Center (Flushing, NY)
Officer for Civil Rights and Civil Liberties, Department of Homeland Security
About The Author
National Immigration Forum et al.. This open letter was signed by over 75 groups and organizations, both on a local and national level.
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