Since Congress changed the immigration laws in 1996, more and more non-citizens are being held in detention centers or jails during their immigration cases, or while they are waiting for deportation, even though they are not convicted criminals or even pretrial detainees. When a person is held in custody by the Immigration and Customs Enforcement agency (ICE) they are called “immigration detainees,” rather than prisoners.

Note for Non-Citizens Serving Prison Sentences:

One important thing to be aware of as a non-citizen is that if you have been convicted of certain qualifying crimes (as defined by federal immigration law), you may be deportable after you have served your sentence. Regardless of your immigration status, non-citizens can be removed for criminal convictions. This is complicated, and something you should discuss with an attorney who specializes in immigration law.

If you are ordered removed while serving your criminal sentence or if you are fighting your immigration case while in prison, you could be detained after you have finished serving your sentence and held for an uncertain period of time before you are deported from the country or your immigration case is decided.

As an immigration detainee, you have most of the same constitutional rights to decent treatment as citizens do. Like pretrial detainees, immigration detainees can challenge the conditions of their confinement under the Due Process Clause of the Fifth Amendment, which protects any person in custody from conditions that amount to punishment. See Wong Wing v. United States, 163 U.S. 228, 237-38 (1896).

However, the Supreme Court has not yet determined what due process standard should be used to analyze conditions and abuse challenges by people in immigration detention. Some courts have acknowledged that it is not yet clear how immigration detainees’ claims should be treated. In Preval v. Reno, 203 F.3d 821, 2000 WL 20591 (4th Cir. 2000), the Fourth Circuit reversed a lower court ruling on a case brought by immigration detainees because the district court had dismissed their claims using the standard for pretrial detainees without giving the detainees the opportunity to argue about the correct standard.

That said, most courts have held that such challenges should be analyzed under the Bell standard for pretrial detainees, discussed above. For an example of this point of view, read Edwards v. Johnson, 209 F.3d 800 (5th Cir. 2000) Turkmen v. Ashcroft, No. 02 CV 2307, 2006 U.S. Dist. LEXIS 39170, *98 (E.D.N.Y. June 14, 2006) or Foreman v. Lowe, No. 07-1995, 2008 U.S. App. LEXIS 1011 (3d Cir. Jan. 16, 2008). In considering due process claims by immigration detainees, the courts have stated that the Eighth Amendment sets a floor for those rights. This means that immigration detainees have at least as much protection as that under the Eighth Amendment. It is not clear if they have more.

If you are an immigration detainee, you may want to argue that you deserve a standard that is more protective of your rights than the standard for pretrial detainees or convicted prisoners because you have not gotten the usual protections that courts give defendants in the criminal justice system. Some courts have explicitly stated that the Eighth Amendment “does not set a ceiling” on due process rights. In other words, immigration detainees may get more protection under the Due Process Clause than convicted prisoners get from the Eighth Amendment. This means that some conditions courts find lawful for prisoners, might not be lawful for detainees. Crosby v. Georgeakopoulos, No. 03-5232, 2005 U.S. Dist. LEXIS 32238, *8-10 (D.N.J. June 24, 2005).

Though not a case involving immigration detainees, in Jones v. Blanas, 393 F.3d 918, 933-34 (9th Cir. 2004), a court decided that conditions for other “civil detainees,” those who have a mental illness or face civil commitment for a sex offense, must be better than conditions for pre-trial criminal detainees. If people facing civil commitment are held in the same conditions as criminal detainees, the Ninth Circuit will presume the conditions are punitive, and thus unlawful. If you are an immigration detainee held in a jail or prison, or if your conditions are identical or more restrictive than conditions for pretrial detainees or prisoners, you may want to argue that the court should presume your conditions are punitive and unconstitutional.

You should look at cases from your jurisdiction to see which approach, if any, courts in your area have taken.

You can also argue that, because the correct standard is unclear, the court should appoint an attorney to represent you. You may have a good chance of getting appointed a lawyer if you are an immigration detainee held in a private facility, as that raises multiple complex questions of law. In Agyeman v. CCA, 390 F.3d 1101 (9th Cir. 2004) for example, the Ninth Circuit said the lower court abused its discretion when it did not appoint counsel to an immigration detainee who sued a private corporation because the case was very complex. See also Sanusi v. Immigration and Naturalization Service, 100 Fed. Appx. 49, 2004 WL 1303644 (2d Cir. 2004).

Examples of the types of cases detainees can bring under the Due Process Clause:

  • Restrictive or inhumane conditions of confinement
  • Use of excessive force by guards.
  • Problems with food, exercise, or sanitation.
  • Failure to provide adequate medical care.

The law is even less clear for non-citizens who are arrested while entering the United States without a valid visa, or who are arrested after entering without inspection. These people are called “inadmissible” and the government sometimes argues they should get even less legal protection than other non-citizens. One of the first cases to address this issue was Lynch v. Cannatella, 810 F.2d 1363 (5th Cir. 1987). In Lynch, sixteen Jamaican stowaways claimed that they were abused while in the custody of the New Orleans harbor police. For ten days they were locked in a short-term detention cell without beds, mattresses, pillows, or heaters. Defendants kept them handcuffed and forced them to work while shackled. The police hosed them down with fire hoses, beat them, shot them with a stun gas, and locked them in shipping containers.

When the non-citizens sued, the defendants in Lynch argued that “inadmissible” aliens have “virtually no constitutional rights.” The Fifth Circuit disagreed, and held that due process protects “persons” whether or not they are citizens or legal residents. The court held that immigration detainees are “entitled under the due process clauses of the Fifth and Fourteenth Amendments to be free of gross physical abuse at the hands of state or federal officials.”

Unfortunately, some courts have taken this language to be the outer limit of due process protection for inadmissible aliens. For an example of this type of reasoning, read Adras v. Nelson, 917 F.2d 1552 (11th Cir. 1990). We think that all detainees should be protected from far more than “gross physical abuse,” whether they are inadmissible or deportable, and urge you not to use this standard in your papers. If the defendants in your case use this standard, you could point out that it doesn’t make sense to offer civil immigration detainees less protection than convicted criminals get under the Eighth Amendment.

There are almost no cases addressing the application of the Fourth Amendment’s prohibition on “unreasonable searches and seizures” to immigration detainees. Because searches can be based on similar security concerns in all types of detention, most court treat prisoners, pretrial detainees, and immigration detainees the same, although those who have not been convicted of a crime may have somewhat more success in challenging the worst searches, like strip or body cavity searches. One unlawful search case by an immigration detainee is Al-Shahin v. DHS, No. 06-5261, 2007 U.S. Dist. LEXIS 75018 (D.N.J. 2007).

As explained in Section J on pretrial detainees, some courts have held that pretrial detainees charged with misdemeanors or other minor offenses cannot be strip searched in the absence of individualized reasonable suspicion that the detainee possesses a weapon or contraband. Thus, at a minimum, the same standard should apply to immigration detainees, who have not been charged with any crime. Some cases that discuss strip searches of pretrial detainees are Bell v. Wolfish, 441 U.S. 520 (1979); Shain v. Ellison, 273 F.3d 76 (2d Cir. 2001); Kelly v. Fonti, 77 F.3d 819 (5th Cir. 1996).

Also similar to pretrial detainees, the law about placement in segregation without due process may be better for immigration detainees than for convicted prisoners. One good case to read on this issue is Bromfield v. McBurney, C07-5226RBL-KLS, 2008 U.S. Dist. LEXIS 11844 (W.D. Wash. Jan 14, 2008).

Prison Litigation Reform Act (PLRA) and Exhaustion Requirements
Every circuit court to address the issue has held that the PLRA does not apply to immigration detainees because they are not “prisoners” within the meaning of the act. This means that the restrictive provisions of the PLRA discussed in Chapter 2, Section F and throughout this handbook do not apply to you, including the exhaustion requirement, filing fees, and three strikes provisions. Some examples of these cases include Ojo v. INS, 106 F.3d 680 (5th Cir. 1997); LaFontant v. INS, 135 F.3d 158 (D.C. Cir. 1998); Preval v. Reno, 203 F.3d 821 (4th Cir. 2000); Agyeman v. INS, 296 F.3d 871 (9th Cir. 2002). See also Page v. Torrey, 201 F.3d 1136 (9th Cir. 1999); Troville v. Venz, 303 F.3d 1256 (11th Cir. 2002); Perkins v. Hedricks, 340 F.3d 582 (8th Cir. 2003) (holding that the PLRA does not apply to people who have been civilly committed).

However, that doesn’t mean you can ignore the detention center grievance system or the Immigration and Customs Enforcement (ICE) administrative complaint process. Before Congress passed the PLRA, courts created their own exhaustion requirements, and those may apply to you. The Supreme Court held in McCarthy v. Madigan, 503 U.S. 140 (1992), that courts need to balance a person’s right to go to court to sue over injustice against an institution’s interest in having you use whatever grievance system they have set up. Under this balancing test, there are three arguments you can make to allow you into court before exhausting: (1) if exhaustion would somehow hurt your ability to sue, for example because it might take too long; (2) if the institution’s grievance system can’t give you what you want, for example money damages; or (3) if the institution is biased or has already decided the issue against you. Still, it is safer to use or try to use any grievance system that ICE or the jail or detention center has, before you sue.

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