AILA/AILF Comment on INS Custody Regulation

November 19, 2001

Director, Policy Directives and Instructions Branch
Immigration and Naturalization Service
425 I Street, NW, Room 4034
Washington, DC 20536

Re: INS No. 2171-01; Interim Rule on Custody Procedures, 66 Fed. Reg. 48334 (9/20/01).
Submitted via email to insregs@usdoj.gov
Dear Sir/Madam:
The American Immigration Lawyers Association (AILA) is writing to comment on interim regulations published in the Federal Register on September 20, 2001. The American Immigration Lawyers Association ("AILA") is a voluntary bar association of nearly 8,000 attorneys and law professors practicing and teaching in the field of immigration and nationality law. AILA's members represent and advocate on behalf of thousands of non-citizens each year, and AILA remains committed to justice and fairness in the proceedings to which those individuals may become subject.

The American Immigration Law Foundation (AILF) is a non-profit organization established to increase public understanding of immigration law and policy, to promote public service and professional excellence in the immigration law field, and to advance fundamental fairness, due process, and basic constitutional and human rights in immigration law and administration.

AILA and AILF condemn the September 11 attacks on the United States, and indeed all acts of terrorism, whether the perpetrators are domestic or foreign. While every step must be taken to protect the American public from further terrorist acts, those steps must not trample on the Constitution and on those basic rights and protections which make American democracy so unique and precious.

We wholeheartedly endorse the comments submitted by the United States Conference of Catholic Bishops (USCCB). The following remarks are to emphasize and expand upon those comments.

Indefinite Detention is Constitutionally Impermissible and Reprehensible to Our Nation's Values

Under the interim rule's changes to 8 CFR section 287.3(d), a non-citizen can be held for an indefinite period of time "in the event of an emergency or other extraordinary circumstances" without so much as a determination as to whether to pursue proceedings. This exceptionally vague and open-ended provision allows detention without reason for virtually any period of time that the jailer chooses, with no recourse or explanation. It, in effect, allows an individual to be held for long periods for no better reason than that someone in government does not like his looks. What could be more offensive to our Constitution and to the democratic way of life that we seek to defend?

It was only a few months ago that the U.S. Supreme Court found unconstitutional the practice of indefinitely detaining individuals who had been found to have violated the immigration laws and ordered removed (Zadvydas v. Davis, 533 U.S. ____, 121 S.Ct. 2491 (2001)). Yet here is a regulation that would that indefinitely detain those who have not even been charged-or even had a decision yet made on whether to charge them-much less been found removable. That the Zadvydas court imposes a reasonable time standard on detention of those found removable does not mean that the INS can adopt the same standard for those who have not even been charged. We owe the Constitution and our democracy better than that: we owe those under scrutiny the right not to be deprived of liberty without due process of law. Holding someone for an unspecified period without even deciding whether to charge him deprives him of liberty with no process of law.

Congress also has spoken to the issue of how long an individual can be detained, and has done so even more recently than the Zadvydas decision. In the Uniting and Strengthening America by Providing Appropriate Tools to Intercept and Obstruct Terrorism Act of 2001 (known as the USA PATRIOT Act), Public Law 107-56, 115 Stat 272 (Oct. 26, 2001), Congress limited to seven days the time that an individual suspected of terrorism can be held without being charged with a crime or brought under removal proceedings. Allowing persons not necessarily even suspected of terrorism to be held for an undefined period is a clear violation of this legislation. If anything, a person NOT suspected of terrorism should be limited to the 24-hour hold of the previous regulation.

The Regulation Permits Indefinite Detention Based on an "Emergency" or "Extraordinary Circumstances" That Do Not Necessarily Relate to the Detainee

The regulation permits the government to continue to hold a person in custody without charges indefinitely if there is "an emergency or other extraordinary circumstances." There is no definition of these terms, and there is no requirement that the emergency or circumstances be connected to the person detained or the reasons for his or her detention. Under this regulation, an unrelated problem the government is addressing elsewhere justifies the indefinite detention of an innocent person. At a minimum, the regulation should permit a person to be detained for longer than 48 hours without charges being filed only if the emergency or extraordinary circumstances directly interfere with the government's ability to make a custody determination about the specific person.

The Time Period Should Be Ended by an Actual Charge, and Not Just a Decision to Charge.

It is time to redress a long-standing flaw in 8 CFR 287.3(d), made all the more glaring by the regulatory change. That regulation has limited the amount of time that an individual can be held without a decision to issue a notice to appear (NTA). In fact, it should limit the time that a person can be held without the FILING of an NTA. There have been far too many instances in which detention has been continued for a long period without the NTA being filed with an immigration court. The effect has been to lengthen an already too-long removal process and to effectively bar the individual from access to any meaningful form of redress.

Indeed, in section 412 the USA PATRIOT Act requires actual filing of the NTA for those who are suspected of terrorism: "The Attorney General shall place an alien detained … in removal proceedings, or shall charge the alien with a criminal offense, not later than 7 days after the commencement of such detention. If the requirement of the preceding sentence is not satisfied, the Attorney General shall release the alien." (emphasis added.) Surely a person suspected of a less heinous violation deserves similar protection.

We appreciate the difficult choices that must be made in responding to the horrors of recent months, and urge that those choices take into account preservation of the Constitutional protections that make this country a beacon of hopes for freedom to the world.

Sincerely,

AMERICAN IMMIGRATION LAWYERS ASSOCIATION

AMERICAN IMMIGRATION LAW FOUNDATION