Tuesday, May 25, 2021
No End in Sight: Prolonged and Punitive Immigration Detention in Louisiana is a report authored by the Tulane Law School Immigrant Rights Clinic Faculty Directors (Profs Laila L. Hlass & Mary Yanik) along with six of their clinical students (Gabriela Cruz, Dee-Di Hsi, Trinidad Reyes, Taylor Sabatino, Diego Villalobos, Sara Wood).
The report details the groups' findings regarding habeas litigation pursued by detained migrants in Louisiana. It's a particularly important study because Louisiana holds the second highest number of immigrant detainees of any state. (Texas has the dubious distinction of being in first place.)
- More than half of detained immigrants filing for habeas were Black immigrants.
- Almost 1 out of 4 detained immigrants filing for habeas were previously lawful permanent residents.
- On average, detained immigrants had been detained for nearly one year and one month at the time they filed a habeas petition.
- These cases face frequent delays and take months or years to resolve. On average, habeas petitions take about six months from filing to case resolution.
- Detained immigrants won court-ordered release from detention through habeas in only 5 cases during the study period. However, in 22% of cases (112 cases), ICE released the detained immigrant to their community during the case before the Court ruled on whether continued detention is unlawful. These voluntary administrative releases—“shadow wins” where the immigrant is released without court vindication—show up in the formal court record as losses. This is because the Court dismisses the case because there is no further legal remedy as the petitioner has already achieved their goal of release.
- Though the filing fee for these cases is only $5, this fee presents a common obstacle to detained immigrants. In over 40% of cases, detained immigrants did not pay the initial fee. The Court denied 30% of fee waivers requested, and 45 cases were dismissed for failure to pay $5.
- Detained immigrants who do not have the help of a lawyer must also file their petition on a specific court-issued habeas petition form according to local rules of the Court. The form is only in English, and it spans nine pages long. The Court dismissed 22 cases for failing to comply with an order to fill out the required form or revise the petition.
- Over the study period, the Court nearly tripled the number of days that ICE is allotted to respond to allegations of unlawful detention. Those deadlines are sometimes extended even further with extension requests, which are always granted.
- The vast majority (85%) of detained immigrants filed their habeas petitions without the help of a lawyer. More than 1 out of 4 detained immigrants represented by lawyers at filing were released from detention, whereas only 9% of those who filed unrepresented were released.
I highlighted the finding regarding "shadow wins" because it caught the attention of ProPublica: check out their coverage of the Tulane report.
- Congress should restrict immigration detention, ban private immigration detention centers, and permit custody review before an immigration judge for every detained immigrant.
- ICE should close detention centers, especially those that are remote and not accessible to attorneys, advocates, and detainees’ families.
- The Court should consider shorter deadlines for ICE, represented by U.S. attorneys, to substantively respond to habeas petitions. Given that liberty is at stake in these cases, all deadlines should be set to the minimum reasonable time, and extensions should be limited to rare and exceptional instances. The Court should consider issuing orders quickly in these cases.
- The Court should consider resolving claims expeditiously based on evidence submitted by each party after the petition, response, and any rebuttal. The Court should act quickly to use all available tools for fact-finding under the habeas statute. For any proceedings where a limited English proficient petitioner is brought to court, the Court should provide simultaneous interpretation by a court interpreter at no expense.
- The Court should appoint counsel for unrepresented petitioners with regularity. The Court should award attorneys’ fees and costs to successful detained immigrants who win release under habeas.
- All detained immigrants should have access to legal information about habeas corpus through Department of Justice’s Legal Orientation Program (LOP). Any detention center holding immigrants should contain a legal library with habeas corpus forms, relevant cases and other legal resources, and a guide to self- representation in multiple languages.
- ICE should publicly report the number of people detained longer than 6 months at each detention center. In each custody review, ICE should give any detained immigrant who is denied release the form for a habeas corpus petition and a notice from legal service providers to seek further information.