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04/15/2004 Entry: "DHS changes immigration detention policy"
Many civil organization welcomed today's announcement by DHS concerning changes to immigration detention policy. Click on more to view a summary of the new guidance.
The Undersecretary for Border and Transportation Security Asa Hutchinson issued changes to the present immigration detention policy at the Department of Homeland Security (DHS). These changes were a response to a June 2, 2003 report by the Justice Department's Office of Inspector General (OIG) entitled, "The September 11 Detainees: A review of the treatment of aliens held on immigration charges in connection with the investigation of the September 11 attacks." As a result of the report and pursuant recommendations, on September 9, 2003, ADC along with other national and local organizations sent a letter to DHS Secretary Thomas Ridge and Undersecretary Hutchinson addressing the problems with immigration detention policies raised by the OIG report.
The new guidance includes the following:
* The Bureau of Immigration and Customs Enforcement (ICE) must determine whether a detainee should continue to be held or released on bond within 48 hours of detention. Additionally, the person must be informed of the reasons for detention and his rights to representation.
* If held beyond 48 hours, an immigration detainee must also be served with a notice to appear (charging document to appear before an immigration judge) within 72 hours following detention.
* No detainee shall be transferred to another jurisdiction prior to being served with a notice to appear.
* ICE attorneys are directed to independently review the individual circumstances of each case in which the FBI requests detention solely based on information that a person is allegedly associated with terrorism. The ICE attorneys must carefully study the facts in each case and make assessments as to both the necessity for detention and the appropriate conditions of confinement in each case.
* In case of an emergency or extraordinary circumstance, a person may be held longer, however written documentation of the exact emergency or extraordinary circumstance as well as the specific reason behind holding the individual must be made in detail and placed in the individual's file. A special agent in charge, or someone in higher position, must make the decision. Additionally, this decision must be reviewed by ICE counsel within 30 days.
While it welcomes the new guidance, ADC and other organizations continue to have other concerns regarding immigration detention policies. For example, a detainee who is not served or charged within 48 hours should be guaranteed access to a judge in order to determine whether there exists a legitimate exception for continued detention without charge. Additionally, ADC is concerned about indefinite detention of Palestinians and others who have no state to which they can be deported, and the lack of guaranteed access to council for those facing deportation.
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