Immigration Detention, Removal Defense, and the Pandemic

Noncitizens are vulnerable in removal proceedings. Due process rights are severly limited and for most, removal carries very serious consequences. The process has been complicated through several instances of reform and, for some, removal carries very serious consequences.¹ As one immigration judge noted, removal proceedings can be like “doing death penalty cases in a traffic court setting.”² The pandemic has exacerbated the shortcomings and challenges of noncitizens’ removal proceedings (often referred to as “deportation”), and this article will explore those shortcomings and their effects on the individuals involved in the process.

Terms

EOIR: The Executive Office for Immigration Review, the immigration courts, and judges. The EOIR is a large agency within the Department of Justice. With 60 courts across the United States and Puerto Rico, the size, types of cases, and local practice vary. 

ICE: Immigration and Customs Enforcement, within the Department of Homeland Security. Both the Office of the Chief Counsel (OCC—the Attorneys) and Enforcement and Removal Operations (ERO Deportation Officers) fall under ICE. ICE plays the role of prosecutor, police, and sheriff in the immigration contact. ERO initially detains a noncitizen. OCC charges the noncitizen with removability. ERO manages detention while that person remains in removal proceedings, and sometimes after. 

Noncitizen: Used here to describe anyone who is not a United States citizen who is present in the United States. This includes Lawful Permanent Residents (LPRs or “Green Card” holders), persons present without authorization, and those present on temporary visas.

For those fighting to remain in the United States, the question to remain in detention boils down to: should I put my long-term health at risk here in the United States or put my life at risk back in the country I fled? It’s impossible to sit for months or years in a jail, but the alternative for many is torture or death in another country. This could be a country that someone escaped. Or, it could be a country their family escaped and the immigrant has never known. The complexity of citizenship laws means that someone could be a citizen of a country they’ve never seen. Deportation could mean leaving one’s partner to be a struggling single parent and missing at least 10 years of the children’s lives. These consequences are all the more severe when we remember that ICE custody is civil detention. 

Background on Bonds

Any noncitizen may be detained. A lawful permanent resident (“Green Card” holder), a recipient of a temporary visa, or a person residing in the United States without lawful status may be subject to immigration detention. At first glance, immigration detention is similar to criminal detention. Noncitizens are held in county jails while their immigration cases proceed. Immigration detention, however, is civil and not criminal. Immigration detention is not a direct consequence of criminal punishment or alleged criminal conduct.

There are a number of distinctions when it comes to bond (payment for release from detention). An immigration bond may be available to those who can afford to pay $1,500 to $20,000 or more. Even then, bonds are not universally available. A slew of criminal convictions can subject a noncitizen to “mandatory detention,”³ meaning that person is not entitled to a bond and will remain detained for the duration of his or her immigration case. Was the person picked up after a simple drug possession conviction? He’s out of luck and doesn’t have access to a bond. Is the person in immigration proceedings following two shoplifting convictions? She will stay detained. Was the person transferred to immigration after being charged with selling marijuana? There is a significant chance he or she will not be granted a bond. Asylum seekers whose first steps into the United States are at the border cannot seek a bond before an immigration judge, even if they are transferred to a Minnesota detention facility. If someone falls in a mandatory detention category, getting out before the proceedings are completed is nearly impossible. In 2018, 71% of detained persons were subject to “mandatory detention,” while 51% of the same population were classified as “non-criminal.”⁴

Immigrants who do not fall under a mandatory detention category bear the burden of proving they are not a flight risk or danger. In practice, this means any DWI conviction on someone’s record creates too high of a burden to overcome. Or a single person without children who has been in the United States for one to two years might not have sufficient ties to Minnesota to prove he or she is not a flight risk. Those who cannot meet this burden are denied bond and remain in detention.

Unlike criminal bonds, an immigration bond must be paid in full prior to release, no percentages. Many bond companies do not pay immigration bonds, and paying the bond is left to family members who are often struggling without their main breadwinner. Without the important work of the Minnesota Freedom Fund, even more Minnesotans would be in detention, unable to pay a bond. 

Immigration Detention in Minnesota

As a non-native Minnesotan, I have toured the state and come to know it through one- to two-hour-long drives to county jails that contract with ICE for bed space. ICE primarily contracts with Sherburne County Jail, Freeborn Adult Detention Center, Kandiyohi County Jail, and Carver County Jail to detain adults. There are no family detention centers in Minnesota.

These jails each offer a different number of beds and practices with regards to meeting space, communication with detained persons, and programming available to detained persons. Each jail permitted in-person attorney visits prior to the pandemic, but rules varied widely. Sherburne County Jail permitted entry to attorneys any time from 8 a.m. to 9 a.m., while other facilities required attorneys to make the 90-minute drive prior to an 11:30 a.m. lockdown. Arrive too late and the attorney would have the opportunity to have lunch at the one Mexican restaurant or coffee at the one shop in town until lockdown ended at 1:30 p.m. 

These jail facilities are designed and intended for pretrial criminal detention. Average pretrial detention lasts from 5 to 200 days.⁵ Noncitizens detained by ICE spend an average of 63 days in detention.⁶ However, this number is skewed by those who do not seek relief in an immigration case and are deported within a month of being detained. Noncitizens who seek relief in immigration court can expect to spend months in detention. Months become an average of 404 days or more if they decide to appeal.⁷ 

The long wait in detention is demanding on a noncitizen’s well-being. Lives are reduced to a small, inescapable space. Because they are pretrial detention facilities, they do not offer the same recreational opportunities and programming as the state’s prisons where inmates are serving criminal sentences. A detainee will generally have no access to the outdoors, and possibly will not have a window with natural light. At the Freeborn Adult Detention Center, an immigrant may have access to AA, art therapy, prayer groups, a gym, and even a tablet that permits texts and calls to loved ones from their cell. At the Sherburne County Jail, the very same person may expect access to a gym and a Christian-only prayer group. 

These facilities are not equipped to treat persons with serious health needs, especially long-term. Persons with serious mental health issues have, in some cases, been placed in segregation (sometimes referred to as “isolation”) because the staff lack appropriate means to manage a mental health crisis. My clients with serious mood disorders or who perhaps suffer hallucinations related to schizophrenia have spent 60 or more days in segregation. This means 22 to 23 hours each day in their cell where they are not permitted access to books or any type of activity. This solution only exacerbates mental health symptoms. Getting out of segregation often requires taking medication, which can be at such high dosages that some clients enter a walking coma. Whether a person has spent days, weeks, or months in segregation has no bearing on whether he or she is entitled to an immigration bond, because it does not fit within the dangerousness/flight-risk analysis. In fact, the mental health crisis, if accompanied by erratic behavior, might be used to justify continued detention.

The Pandemic’s Impact on ICE Detention

All in-person visits at the county jails were suspended as closures swept the state in March 2020. The jails have long allowed phone access to clients. Sherburne County Jail is able to facilitate Zoom access for client meetings, however, the rest only offer phone access to attorneys. Depending on the facility, I am able to call a client directly, while other facilities pass on a message for a call back. There is varying success with the latter method. Clients whose first language is not English may not understand the question or maybe an unexpected COVID lockdown will prevent them from calling me back. 

This problem becomes especially critical when I am trying to reach a client in preparation for a hearing. I might need to discuss a police report I just received prior to a hearing the next morning or review a declaration for signature, but I cannot because of a lockdown. COVID restrictions have meant that my clients might not have access to a private space in a jail from which to make a phone call. Privilege with clients is destroyed, because they cannot make a phone call without one to twenty other people overhearing it. The lack of privacy not only prohibits privilege, it also endangers safety when, for example, a man discloses his sexuality to his attorney by phone in the midst of others.

Even timing of phone calls presents a challenge. Space is limited and court hearings and attorney phone calls may occupy the same room. This means that on any day that there are master calendar hearings, an attorney is unable to reach a client until the afternoon. This can mean I have only five minutes to discuss an important point of information that could go to the client’s credibility—and ability to remain in the United States. One of the best solutions in certain cases, especially if the practitioner does not have young children that demand attention, is to shift client calls to the evening, 6 p.m. to 9 p.m. 

Human contact and connection are missing in a jail setting. Language barriers leave clients who don’t speak English, Spanish, or Somali without company. Extended lockdowns intended to prevent the spread of COVID give many detained persons only two hours outside of their cell in which they must squeeze in time to check in with family and attorneys. Due to the pandemic, ICE now provides 520 minutes of free calls each month, but participation in this program is at the facility’s discretion. Freeborn Adult Detention Center has declined to participate, meaning ICE detainees must have money in their personal account and be able to afford $5 phone calls. This situation exacerbates the isolation while also cutting off an important lifeline in the preparation of their case. 

During the pandemic, the staff at each jail has facilitated the exchange of documents between clients and attorneys via email, which has made obtaining signatures and document delivery much faster. However, reviewing documents with clients creates a new challenge. Our clients face language, health (physical and mental), and education barriers. When discussing an application or a declaration I have sent a client, I cannot guarantee we are even looking at the same page. I cannot send my clients a stapled copy, and I often wonder if their copy is in the right order. 

I appreciate the time saved now that I don’t spend hours on the road, but now I find myself asking the following questions during each client meeting:

• Is this a secure connection?
• Is my client standing in a room with anyone else? 
• Is he able to access a private space? 
• What is her appearance like? 
• Do they really understand what I’m saying? 
• Are they experiencing audio or visual hallucinations? 
• I’m not getting called back; are they sick with COVID?
• Or maybe they are reliving trauma after discussing their asylum case? 
• Does this person feel like they can trust me? 

There is no surefire way of guaranteeing we get the right answers to these questions. These questions must be answered with every client, in almost every conversation. A client of mine as a member of the Nuer tribe was seeking protection from South Sudan. Members of the Nuer tribe are often identifiable based on traditional scarification patterns of their forehead. This would be clear to anyone who has met him—in person. I did not have that advantage. And perhaps because it was so common to the client’s experience, he did not bring it up. If I had not asked about any scarring patterns, I could have missed an important and obvious method by which he could be identified in South Sudan. 

Another client was able to understand and communicate by phone with me effectively. What I didn’t know was that he was experiencing visual hallucinations. I was only able to see him during his video appearance at hearings—an unreliable way to ascertain whether a client is experiencing hallucinations. Strange behaviors are often the result of nerves. Fortunately, he later disclosed the hallucinations to me, and we were lucky that he was able to distinguish hallucinations from reality. This is not always the case. I was able to connect him with a psychologist. He was diagnosed with schizophrenia—a condition that can put him at risk of persecution and torture in his country of origin. If he had not been able to identify his hallucinations, he might not have been able to remain in the United States—or still be living. 

COVID-19 in Minnesota Detention Centers

The COVID-19 pandemic created opportunities for early release from state and federal prisons.⁸ The pandemic has provided little relief to those in immigration detention with respect to early release. EOIR’s bond analysis sidelines COVID concerns, because dangerousness and flight risk do not account for the present danger to someone who is currently in detention. Petitions for habeas corpus—a request for release to the federal district court—have had limited success. A nationwide class action, Fraihat v. ICE, requires ICE itself to affirmatively seek out vulnerable persons in its custody. The goal is to identify the most vulnerable for release. In practice, this does not occur unless an attorney requests a review of a client’s custody. Locally, few, if any, people have been released after making a request under Fraihat. 

Our clients regularly report that they feel as if they are in a petri dish and cannot keep themselves healthy.⁹ Some detained noncitizens with symptoms of COVID have never received confirmation of whether they are positive.¹⁰ Detention centers in other areas of the country have seen deaths.¹¹ ICE’s own reporting tool has proved unreliable. Sometimes the numbers of confirmed cases at a detention facility decrease without an explanation. Some facilities are omitted from the data.¹² 

Even those persons who asked to be deported as soon as possible remain waiting, sometimes for months, in detention. Prior to the pandemic, removal flights to certain countries were infrequent—once or twice a year. Now, with the U.S. COVID number surging out of control, additional countries have refused to accept flights from the United States. Even some who are awaiting deportation to a geographically close country, like Guatemala, have been left sitting and waiting in detention for months. This means no end in sight to sitting in detention without access to the outdoors and maybe without the ability to contact loved ones. 

The size of the detained population has decreased since the beginning of the pandemic, and a growing portion of those in detention are those who have not been physically removed from the country after a removal order. Some practitioners have shifted toward engaging in more habeas work at the federal district court, but this does little to address scenarios like those detainees from Guatemala who are sitting and waiting to leave.

Those waiting for an indefinite period of time are at risk both physically and mentally. Clients who have served criminal sentences consistently express that there is a vast difference between living in detention with and without an end date. Sitting in indefinite detention is its own type of torture. It is in these moments that we, the attorneys who are here to make the process a little more humane and provide some protections, can feel powerless. We still must work with the options that the law provides—which are few.

Access to Telehealth While in Detention

The pandemic has pushed us all to realize the possibilities that technology provides in our practice. And one of the greatest advantages that has come about for my clients is the growth of telehealth services. Detention previously was a barrier to a client’s access to mental health and chemical health services. It was challenging for providers to both travel to the county jails and ensure access with an appropriate interpreter. The pandemic created a necessity for telehealth services. Detained noncitizens can now access these services by phone or video—depending on the jail—to a degree that was previously impossible. Some of my clients have been able to work with bilingual and culturally competent mental health providers for the first time in their lives. For some, it is the first opportunity they’ve had to regularly discuss mental health on a regular basis. The difference it makes is palpable. If ICE detention continues under the same current practices, this is a valuable resource we must retain. 

The Pandemic and the Immigration Court

Dockets
In the last four years, immigration attorneys have become accustomed to looking to Twitter (of all places) for major immigration-related policy announcements. Somehow, I still did not anticipate that I would need to turn to checking Twitter at midnight or later in anticipation of a hearing’s cancellation the following day. ¹³ In March, as the pandemic closures spread across the United States, the courts suspended all hearings for those who were not in ICE custody. Filing updates and closures (published by EOIR) existed exclusively on Twitter.¹⁴ These notices were provided solely in English on Twitter without an effective means to reach out to non-represented parties. 

EOIR has since streamlined its system to make announcements via email, a website, and Twitter. However, the logic behind a court’s opening and closing is opaque. Courts in New York, Atlanta, and Florida, all areas that have seen surges at various points, have reopened seemingly in spite of infection rates. The Minnesota nondetained docket remains suspended for the time being. Every week, EOIR announces whether these courts will remain closed for another two to three weeks. Evidentiary deadlines are set 15 to 30 days prior to the hearing. This results in large evidentiary filings for cases that will be reset to a later date on a non-detained case. Preparing these filings becomes an exercise in futility when the rescheduled hearing is in 2023. 

Detained cases are time-intensive, emotional, and exigent. They move much faster than non-detained cases. Where the life of a non-detained case could be years, a detained removal case timeline might require presentation of evidence within six weeks. That is six weeks to meet the high burden that the noncitizen qualifies for relief. Now, with courts and agencies with necessary documentation working with a skeleton staff, it can take five weeks or more to obtain evidence. The shift in the number of detained cases has shortened the detained length of a case in Minnesota. These shortened timelines are intensified by a four-year attorney general led campaign to limit an immigration judge’s authority to grant continuances. I have seen evidentiary hearings scheduled within one to two weeks of an attorney’s initial appearance. 

In light of these changes, attorneys can’t help but feel some hostility from government agencies. These suspicions might sound conspiratorial, but I would ask you to take into consideration EOIR’s continued use of Twitter to announce COVID closures. Generally, if there is a COVID exposure, a court closes “out of an abundance of caution.”¹⁵ These announcements give little guidance as to when and where the exposure occurred in the building. These announcements only identify who entered a building with COVID when it is “[d]ue to a violation of EOIR Policy Memorandum 20-13 by a practitioner.” 

Email Filing at the Immigration Court
The immigration courts lagged far behind others as far as e-filing. Prior to the COVID-19 outbreak, all exhibits were filed on paper. In light of the evidentiary burden on noncitizens, filings commonly reach 500 to 1,000 pages. I remember Senator Amy Klobuchar reminiscing about being a young attorney running to reach the filing window by 3:59 p.m. or begging a clerk to accept a late filing and thinking to myself, that is still what we do at the immigration court.¹⁶ This excludes the well-organized lawyers who perhaps placed their exhibits in the mail before the filing deadline. 

E-filing has been rolled out in some courts across the country. Locally, the transition to e-filing was to have begun in May 2020, but, of course, the pandemic has pushed back this date. For courts that do not have e-filing, EOIR introduced email filing for detained cases. The court does not permit compressed files or encrypted emails and restricts email to filing 50 pages over the life of an entire case. Submissions that would exceed the 50 pages must be accompanied by a motion to exceed the limit. Email filing has overall facilitated a lawyer’s ability to remain at home and avoid entering public spaces in spite of these limitations. Even so, I still rush to the filing window some days with any filing that is too large to attach to an email.

Technology in the Court Room
Prior to the pandemic, ICE transported detained noncitizens to the courthouse for hearings that included a judge, an ICE attorney, and a Spanish language attorney all in the same room. Although EOIR announced the closure of non-detained hearings on March 18, 2020, detained cases have continued. After some sporadic court closures, on April 7 the local court began its transition to having most participants joining by video. Currently, the immigration judge appears via video from a separate courtroom, and the noncitizen appears via video from the detention facility. The OCC may also appear by video. The courtroom is now down to two people: the respondent’s attorney, if he or she has one, and an interpreter, if needed. Attorneys and witnesses are permitted to appear by phone. 

While a much safer option, it is not conducive to litigating complex issues. Confidential client-attorney communication during a video hearing is impossible. The use of video also depersonalizes a discussion of often traumatic events. The impact of live testimony is lessened by the loss of nonverbal cues. Even conferring with opposing counsel becomes more complex. Efforts to discuss and narrow issues prior to hearings mitigate this last problem, but it makes it difficult to discuss new issues that come up during the hearing. 

What’s Next?

A book could be written about the impact of COVID-19 on immigration law, processes, and noncitizens in the United States. I encourage you to reach out to your colleagues in the immigration world who can shine a light on issues I have not discussed here. A history of reactionary lawmaking created a modern system that more readily pushes our community members out of the country rather than welcome a single person to the country. The “process” is a labyrinth that challenges even the most experienced practitioners. In the context of removal proceedings, detained immigrants must try to rush through a complicated process, providing an even greater opportunity to fail. Nondetained immigrants must wait years for an answer to whether they can remain in the country. 

The COVID-19 pandemic shines a light on the injustice baked into the system. Civil detention is civil in name only. U.S. immigration law upholds civil detention while simultaneously stripping away the little due process afforded to the detained. It is punitive and harmful not only to those caught in it but also to their families and our communities. 

Kerry McGuire is a staff attorney at the Immigrant Law Center of Minnesota. She represents detained noncitizens in removal proceedings at the Fort Snelling Immigration Court.

Notes

¹ As of July 2020, the Migration Policy Institute’s Catalogue of President Trump’s changes to the U.S. Immigration System was 126 pages long: https://www.migrationpolicy.org/research/us-immigration-system-changes-trump-presidency?s=09.

² Immigration Judge Dana Leigh Marks during the April 1, 2018, edition of Last Week Tonight with John Oliver.

³ 8 U.S.C. § 1226(c)

⁴ https://immigrantjustice.org/staff/blog/ice-released-its-most-comprehensive-immigration-detention-data-yet

⁵ https://www.hamiltonproject.org/assets/files/BailFineReform_EA_121818_6PM.pdf

⁶ https://www.ice.gov/doclib/detention/FY20-detentionstats.xlsx

⁷ Rodriguez v. Robbins, 804 F.3d 1060, 1072 (9th Cir. 2015)

⁸ For example, https://www.jdsupra.com/legalnews/pandemic-is-changing-compassionate-5368705/

⁹ https://www.wctrib.com/news/crime-and-courts/6815868-Advocates-push-for-ICE-detainees-to-be-released-from-Kandiyohi-County-Jail-due-to-COVID-19-concerns-sheriff-says-he-doesnt-have-that-power#.X_nWWuv-LpI.twitter

¹⁰ The medical provider which contracts with Minnesota County Jails is under investigation for unethical practices: https://www.kare11.com/article/news/investigations/kare-11-investigates-unethical-record-of-minnesotas-largest-jail-health-care-provider/89-aed51ef6-ca37-4ace-b6d0-3e079389c9c9

¹¹  https://www.ice.gov/coronavirus#

¹²  https://www.vera.org/tracking-covid-19-in-immigration-detention

¹³  https://twitter.com/DOJ_EOIR/status/1237906108347531267

¹⁴  https://twitter.com/DOJ_EOIR/status/1237736034789621762

¹⁵  https://twitter.com/DOJ_EOIR/status/1347688828782465029

¹⁶  https://www.justice.gov/eoir/fort-snelling-immigration-court