Why Do Some Immigrants Spend So Long in ICE Custody?

By Kathy Moccio, Binger Center for New Americans, U of MN Law School

The immigration court process to deport non-citizens, including lawful permanent residents, is complex and lengthy. It often starts with ICE arresting a person and placing the person in jail. ICE then prepares a Notice to Appear (NTA) that is filed with the Immigration Court. Once the NTA is filed with the court, immigration proceedings commence. The immigration courts are backlogged, and it can take time – several months – for a detained case to obtain a full hearing. At the conclusion of the individual hearing, the immigration judge (IJ) issues a decision that can be appealed to the Board of Immigration Appeals (BIA) by either the government or the detainee, depending on the decision. The BIA is backlogged, and it can take months, often six or more, for the BIA to prepare transcripts, issue briefing schedules, and decide the case. It is not uncommon for a noncitizen who’s been detained for a year to get a decision from the BIA that remands the case, e.g. the IJ failed to apply the correct law or failed to rule on a particular issue, back to the immigration court for the IJ to conduct another hearing. At the conclusion of that hearing, the IJ will make a decision and that decision can be appealed to the BIA. The remand and appeal can take a year or more. Once the BIA issues a final order of removal, a noncitizen may ask the BIA to reconsider the case and/or appeal the case to the Federal Court of Appeals. Sometimes the Federal Court of Appeals will issue a stay of removal – an order that prohibits ICE from deporting the person – while the appeal is pending. Again, it can take months for the Federal Court of Appeals to schedule a case and issue a decision. It is not uncommon at this point to see non-citizen detainees who have been in ICE custody for three years or more.

Even when a person stops fighting their deportation case, she can remain stuck in jail in ICE custody. Sometimes, immigration cannot get a travel document to deport the person or there is no flight scheduled. Folks who remain in ICE custody waiting to be deported often talk about the extreme anguish and stress they experience.

The extremely long periods of time non-citizens are spending in immigration custody has spurred federal habeas corpus litigation to the federal district courts challenging the constitutionality of prolonged immigration detention. While many of the cases have been successful, habeas cases take time – again months – to decide and the person remains in ICE custody until ordered released.

If you are interested in advocating to end immigration detention, the Detention Watch Network at: https://www.detentionwatchnetwork.org/ provides a number of ways to take action.

From the 9-15-21 Conversations with Friends newsletter

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