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- Main Article: “Immigration Detention and Deportation in Nevada” by Fatma E. Marouf
Immigration Detention and Deportation in Nevada
© 2014 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (August 2014, Vol. 35, No. 8). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, 725 S. 8th St., Las Vegas, NV 89101. Phone: (702) 387-6011.
During the past 20 years, the number of individuals in civil immigration detention has expanded dramatically, from a daily population of about 6,000 in 1994 to around 33,000 today. Annually, around 400,000 immigrants are detained at a cost of $2 billion per year. These detainees are held in approximately 250 facilities across the United States. Six of these facilities are owned and operated by Immigration and Customs Enforcement (ICE), seven are contract detention facilities run by for-profit companies, and the rest are local and state jails that have intergovernmental service agreements with ICE.
In Nevada, almost all immigration detainees are held at the Henderson Detention Center (HDC), which signed a contract with ICE in 2009. Documents obtained by the Las Vegas Sun through a Freedom of Information Act request showed that HDC has an average daily population of about 250 immigration detainees and charges ICE $102 per person each day, generating over $10 million in revenues annually for the City of Henderson. In addition, a small number of immigration detainees are held at the Washoe County Jail.
This article briefly addresses how immigrants commonly end up in immigration detention, the conditions of detention in Nevada, and why certain groups remain especially vulnerable while detained, including mentally incompetent individuals, women, and minors. The article also discusses some of the challenges involved in representing detained individuals, various ways to seek release from detention, and the outcomes of removal proceedings in Nevada.
ICE detainer requests and the changing role of local law enforcement
Many noncitizens end up in immigration detention after being arrested by local law enforcement. Under section 287(g) of the Immigration and Nationality Act (INA), ICE may enter into written agreements with local law enforcement agencies that permits them to perform certain functions of an immigration officer after being specially trained. The Las Vegas Metropolitan Police Department (Metro) has operated under a 287(g) agreement with ICE since October 2008. Among other things, the agreement provides that Metro will give ICE statistical or aggregated data and information about particular arrests.
In addition, Nevada counties have participated in the Secure Communities program since 2010. Secure Communities allows state and local police to check the fingerprints of individuals booked into jail against the Department of Homeland Security’s immigration databases. If there is a “hit,” ICE is automatically notified, even if the person has not been convicted of a crime. ICE may then issue a “detainer,” which is a way of asking the local jail to hold an individual for ICE. Detainers are issued by a wide variety of immigration agents, without any standard of proof. ICE may apprehend individuals with detainers, place them in removal proceedings, and decide whether or not to detain them during those proceedings.
In recent years, dozens of counties in at least five states have decided not to honor ICE detainers because they erode trust in law enforcement, impose substantial costs on local governments, and raise serious constitutional concerns. In April 2014, a federal district court in Oregon ruled in Miranda-Olivares v. Clackamas County that the county had violated the fourth amendment by detaining Ms. Miranda-Olivares without probable cause pursuant to an ICE detainer. 2014 WL 1414305 (D. Ore. 2014) The court explained that the continued detention of Ms. Miranda-Olivares after she was eligible for release on her criminal charges, based solely on the ICE detainer, constituted a new arrest and therefore required an independent finding of probable cause. The court rejected the county’s argument that it was required to comply with ICE detainers, citing ICE’s own statements that the detainers are voluntary requests. The county was found liable for damages under Section 1983 of the Civil Rights Act.
Since the decision in Miranda-Olivares, almost 100 counties across the country have refused to hold individuals beyond the time that they are eligible for release based on ICE detainer requests. Clark County recently joined these localities. After 13 years of operating under a practice of refusing to accept bail from pre-trial inmates who are subject to ICE holds, the Clark County Detention Center and Las Vegas Metropolitan Police Department have turned over a new leaf. On July 14, 2014, Clark County Sheriff Doug Gillespie announced that his department would no longer enforce ICE detainers. This commendable change to uphold constitutional rights followed pre-litigation efforts by the National Immigration Law Center, the Immigration Clinic at UNLV’s Boyd School of Law, and Holland & Knight, LLP.
Other Nevada counties should similarly reconsider the practice of complying with ICE detainers. In addition to serious constitutional concerns, there are sound policy reasons to reject detainer requests. First, refusing to honor ICE detainers promotes public safety, because it sends a strong message that immigrants should not fear coming forward to the police as victims or witnesses of crimes. Second, although ICE detainers are supposed to help apprehend dangerous criminals, they cast too wide a net, capturing people with no convictions. In fact, a nationwide study by the TRAC Immigration Project found that half of the individuals subject to ICE detainers had no criminal record. Third, complying with ICE detainers can be very expensive. Localities pay for the additional days of detention and may also incur legal liability, as the Oregon case demonstrates. Fourth, individuals who post bond during their criminal proceedings are more likely to appear at their hearings if they are not at risk of being picked up and detained by ICE, which facilitates the administration of justice.
Conditions of detention in Nevada
UNLV’s Immigration Clinic published a detailed report on immigration detention conditions at HDC in November 2013. The Immigration Clinic also provided testimony and written declarations addressing detention conditions for a Congressional Ad Hoc Hearing on Immigration convened by Congressman Steven Horsford on March 17, 2014 in North Las Vegas. The report found that ICE’s treatment of detainees violated their legal rights and created an environment of fear and hostility. Detainees reported that ICE officers rushed, pressured, or forced them to sign documents; called them racial epithets; and used unnecessary physical force against them, including slamming them against floors, walls, and transportation vans.
Some detainees reported having their wrists and ankles tightly shackled and connected to a waist chain for hours on end. Not only did these shackles leave marks, but they also made eating, drinking, and using the toilet almost impossible to do without the assistance of another person. One of the written statements submitted at the congressional hearing was by a current detainee, a young woman from Romania, who described how she was shackled for nine hours straight in a cold and dirty cell, after which she was told to sign papers that were not explained to her. She has now been detained nearly ninth months at HDC while fighting her case.
Another issue that detainees at HDC complained about was access to health care. Detainees reported waiting months to see a doctor or dentist and stated that common, over-the-counter medications were either unavailable or extremely expensive. For asylum seekers who may have experienced past persecution and other survivors of trauma, access to adequate medical and mental health care is especially critical. Detention itself can trigger memories of past traumas, causing severe anxiety and exacerbating the symptoms of posttraumatic stress disorder. These illnesses may impede a detainee’s ability to give detailed, coherent testimony in court, which can easily affect credibility determinations and the outcome of the case.
Especially vulnerable groups
Certain populations remain especially vulnerable in detention and deserve particular attention and care by attorneys and immigration officials. Three such groups affected by recent policy changes are mentally incompetent detainees, women, and unaccompanied minors.
Mentally incompetent detainees
The situation of mentally incompetent immigration detainees has recently gained national attention based on litigation in California that led to groundbreaking new policy. In April 2013, a federal district court in California found that mentally incompetent detainees must be appointed counsel as a reasonable accommodation under section 504 of the Rehabilitation Act, which forbids federally-funded agencies from excluding or denying individuals with disabilities an equal opportunity to access program benefits and services. See Franco-Gonzalez v. Holder, 2013 WL 3674492 at *7 (C.D. Cal. 2013). Pursuant to this decision, the Department of Homeland Security and Executive Office of Immigration Review announced a new national policy of providing competency evaluations and attorneys at government expense to mentally incompetent detainees. This policy is being slowly implemented. So far, attorneys have been appointed to represent mentally incompetent detainees in about 150 cases in Arizona, California, and Washington.
Attorneys in Nevada should request a competency evaluation and competency hearing whenever they have concerns about a client’s mental competency. Indicia of possible incompetence may include developmental delays or a serious mental illness. In addition, attorneys should consider filing a motion to terminate removal proceedings on constitutional and statutory grounds if a client is found mentally incompetent, especially if the client is unable assist in the defense. Even if the immigration court denies the motion, it preserves an important legal issue for appeal.
Women represent another vulnerable group in Nevada, since HDC has failed to adopt updated detention standards that were designed to provide female detainees greater protection. ICE updated its detention standards in 2008 and 2011, but HDC continues to apply outdated detention standards from 2000. The more recent detention standards include specific policies to prevent sexual harassment, improve women’s access to health care, and protect detained women during pregnancy. For example, the 2011 standards provide that a woman who is pregnant or recuperating after delivery may not be restrained during transport, in a detention center, or at an outside medical facility absent truly extraordinary circumstances, and that a woman in active labor or delivery may never be restrained. Detention centers that have not adopted these updated standard, like HDC, may continue to shackle women in labor, which is a violation of basic human rights.
Juveniles represent a third vulnerable group, which has become only more vulnerable due to the surge of unaccompanied minors entering the United States in recent months. From 2004 to 2011, about 6,800 unaccompanied minors entered the U.S. each year. This number increased to 13,000 in 2012 and 24,000 in 2013. This year, the projected number of unaccompanied minors is 90,000. Unlike prior years, when the majority of unaccompanied minors were boys, about half are now are girls. The number of elementary-school age children entering the U.S. alone has also increased dramatically.
Unaccompanied minors caught crossing the border by Customs and Border Patrol (CBP) are held in Border Patrol facilities that normally consist of concrete rooms with no beds or showers. Although the law requires these minors to be transferred to the custody of the Office of Refugee Resettlement, an agency of Health and Human Services (HHS), within 72 hours, the recent surge in entries has led to children being kept in Border Patrol facilities for much longer. HHS has recently opened emergency facilities on military bases in Texas, California, and other states to house these children.
In June 2014, a group of civil rights organizations filed a complaint with the HHS Office of the Inspector General on behalf of over 100 children who reported experiencing abuse and mistreatment at the hands of CBP. The complaint describes verbal, sexual, and physical abuse; prolonged detention in squalid conditions; lack of essential necessities such as beds, food, and water; denial of medical care; strip searches; and shackling during transport. That same month, federal officials announced that unaccompanied minors would be transferred from holding cells along the border to a new shelter at the Naval Base Ventura County in Oxnard, California, which will house up to 600 children. While most of these immigrant children have been apprehended in the Rio Grande Valley of Texas, Nevada may also soon be affected due to its proximity to other border states. Las Vegas is only a five-hour drive from the facility in Oxnard where the children caught at the border will be held. Attorneys representing unaccompanied minors should be familiar with several forms of relief, including Special Immigrant Juvenile Status, T-visas for victims of labor or sex trafficking, U-visas for victims of certain crimes, and asylum.
Relief is available not only to recently arriving unaccompanied minors but also to other undocumented young people who have been in the United States more long term. Some juveniles may be eligible for the same types of relief listed above. Deferred Action for Childhood Arrivals (DACA) also provides another form of relief for young people who have been in the United States more than seven years. DACA is available to those who entered the U.S. under the age of 16; have resided here continuously since June 15, 2007; were under the age of 31 as of June 15, 2012; and have not been convicted of certain crimes. As of the first quarter of 2014, Nevada ranked 12th among U.S. states in the number of applications received for DACA. U.S. Citizenship and Immigration Services reports that it accepted 9,988 applications for DACA from individuals residing in Nevada between 2012 and the first quarter of 2014, of which 8,654 were approved. DACA’s two-year grant of deferred action status became available beginning on August 15, 2012, so grantees will soon need to request renewals.
Challenges in representing immigration detainees
Lawyers who choose to represent immigration detainees face many challenges. The first challenge is often communicating with the client. Detainees can make calls but ordinarily cannot receive them, which means that lawyers must frequently travel to the detention center. The UNLV Immigration Clinic’s report indicates that some detainees at HDC have reported problems speaking to their lawyers on confidential phone lines and experiencing interference with their legal mail, which further complicates attorney-client communication. Second, detained clients cannot assist their attorneys in collecting the personal documents that should be submitted to the court in support of various applications for relief. Third, cases on the detained docket tend to move very quickly, giving lawyers little time to prepare and brief cases that are often legally and factually complicated. Fourth, payment of attorney fees often becomes an issue when the client is detained and cannot work.
Finally, lawyers may be hesitant to meet with detainees due to HDC’s policy of strip-searching detainees after contact visits with counsel. This policy unfairly forces a detainee to choose between an invasive body search and the right to the effective assistance of counsel. Contact visits, which provide the detainee and attorney a private room to meet, are necessary to preserve confidentiality. The videoconferencing station, which allows an attorney in the waiting room to speak to a client in the open pod, does not provide privacy, since other detainees and guards in the vicinity may hear the conversation. After one of the attorneys at the Immigration Clinic concluded a contact visit with a client at HDC, the client asked a female officer whether she had to be searched. The officer replied, “You can thank your attorney for it,” a comment that clearly discourages exercising the constitutional and statutory right to counsel.
As a result of such challenges, many detainees remain unrepresented. The overall rate of representation in removal proceedings nationwide is about 50 percent, but the rate tends to be much lower among detained populations. In some parts of the country, only one in five detainees has counsel. Pro se detainees are further disadvantaged because they often have very limited access to legal materials and resources. The UNLV Immigration Clinic’s report found that the “law library” at HDC had very few materials, none of which were available in Spanish, and that some detainees were only allowed to use the library at extremely inconvenient hours, such as in the middle of the night.
Seeking release from detention
Lawyers who undertake the challenge of representing immigration detainees should request a bond hearing before the immigration judge as soon as possible, if the client is eligible. The main issues at the bond hearing are whether the client is a flight risk or a danger to security. Many detainees are not eligible for a bond hearing, either because they are “arriving aliens” or because they are subject to mandatory detention under INA Section 236(c). Even some misdemeanors, such as a petty theft with a sentence of more than six months, can render a noncitizen subject to mandatory detention. Often, the issue of whether or not someone is subject to mandatory detention is contested. For example, the parties may disagree about whether a given conviction constitutes an “aggravated felony” under the INA, which would subject someone to mandatory detention. The immigration judge has jurisdiction to resolve this issue, and the judge’s decision can be appealed to the Board of Immigration Appeals.
In April 2013, the Ninth Circuit Court of Appeals issued a watershed decision that gave hope to many immigrants subjected to prolonged detentions. In the case of Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013), the court upheld a preliminary injunction issued in a class action lawsuit in the Central District of California that required arriving aliens and mandatory detainees to be given a bond hearing after six months of detention. Based on the Ninth Circuit’s decision in Rodriguez, attorneys should argue that Nevada detainees are entitled to a bond hearing after six months. Many of the detainees at HDC remain unaware of their right to a bond hearing under Rodriguez. On April 1, 2014, UNLV’s Immigration Clinic requested the opportunity to conduct a know-your-rights workshop with detainees at HDC about the Rodriguez decision, but so far has not received any response from ICE.
Attorneys should also keep in mind that ICE always has discretion to release a detainee. If there are particularly compelling factors, such as where a detainee has serious medical issues, is the primary caretaker of young children, or is the victim of a crime, attorneys should consider asking ICE to reconsider its decision to detain the client.
Outcomes of removal proceedings in Nevada
Once an individual is placed in removal proceedings in Nevada, there is a greater than 50 percent chance that the person will be ordered to leave the country. Nevada ranks among the top ten U.S states in terms of the proportion of immigration cases that result in deportation orders, with 58 percent of the individuals placed in removal proceedings being ordered deported. The Las Vegas Immigration Court issued 1,171 deportation orders in fiscal year 2013. By comparison, 843 individuals in removal proceedings (42 percent) were allowed to stay in the U.S. that year, either because they were granted some form of relief from removal or had their cases closed.
Among those ordered deported in Nevada, ICE had charged less than one in three with some type of criminal or national security offense. In other words, over two-thirds of the deportation orders were issued against individuals who had been charged only with immigration violations. The chance that the Las Vegas Immigration Court will allow someone charged by ICE with only immigration violations to remain in the U.S. is around 50 percent, while the chance of being allowed to remain for someone charged with a criminal offense is just 25 percent. This represents a significant shift from fiscal year 2010, when three-quarters of individuals in Nevada charged only with immigration violations were ordered deported. The change may be due to an increase in the number of cases being administratively closed pursuant to memoranda issued by ICE’s director in 2011 to prioritize who should be deported from the U.S..
The laws and policies surrounding immigration detention and deportation are constantly evolving. This brief discussion shows that many changes are afoot in terms of the relationship between local law enforcement agencies and ICE, the constitutionality of prolonged detention, access to appointed counsel, and other issues that affect basic human rights. Attorneys willing to undertake the challenges involved in representing immigration detainees have the opportunity to develop this dynamic area of law while working to transform their clients’ lives.
Fatma E. Marouf is an Associate Professor of Law at UNLV’s Boyd School of Law and Co-Director of the Immigration Clinic.