Senate and House Judiciary Democrats Outline Necessary Due Process Reforms for Noncitizens in Immigration Detention

Letter

Dear Attorney General Garland and Secretary Mayorkas:

As Chairs of the Senate Judiciary Committee and the Senate Judiciary Subcommittee on
Immigration, Citizenship, and Border Safety and Ranking Members of the House Judiciary
Committee and the House Judiciary Subcommittee on Immigration Integrity, Security, and
Enforcement, we are concerned that current procedures for making immigration bond
determinations allow for the prolonged detention of noncitizens without adequate due process,
raising serious constitutional issues. Such detention has had disastrous effects on noncitizens and their families—plunging families into poverty and exacerbating medical or mental health conditions for detained individuals or their loved ones at home. We urge you to amend current immigration bond procedures to mitigate these concerns and improve access to due process in the immigration detention system.

Although the immigration system is civil, not criminal in nature, the Immigration and
Nationality Act permits noncitizens to be detained while they await their immigration hearings.
Those who have not been charged or convicted of serious crimes may be released on bond. Although the statute does not compel this application, the Department of Homeland Security
(DHS) regulations and Board of Immigration Appeals (BIA) case law both currently place the burden on a noncitizen detainee to prove they are not a danger to property or persons or a flight
risk. This policy places a higher burden on immigrants—regardless of whether or not they have
committed a crime—than is commonly placed on defendants in the federal criminal legal system,
where the government in most cases must justify the necessity of detention. This requirement is
particularly onerous for unrepresented asylum seekers and other immigrant detainees who lack
counsel. Additionally, immigration judges are not required to consider individuals’ ability to pay
when setting bond amounts, leaving many to face prolonged detention simply because of their
financial circumstances. Immigration bonds can be hundreds of thousands of dollars, imposing
huge costs that families are unable to afford. By contrast, the federal Bail Reform Act forbids the
imposition of financial conditions which the defendant cannot meet.

While some noncitizens simply cannot meet the high bar to have a bond set under current
procedures or pay the prohibitively high bond if one is set, others have no access to a bond
proceeding at all because Immigration and Customs Enforcement (ICE) officers consider them to be subject to mandatory detention or custody. The criminal grounds for mandatory custody are
extremely broad, sometimes subjecting noncitizens without a criminal record to years of detention. For example, ICE may subject an individual to mandatory detention if there is “a reason to believe” that the person has been involved in trafficking in controlled substances, even if the individual was never convicted of such a crime. Overall, data from August 13, 2023 shows that 18,825 out of 30,184—or 62.4 percent—of individuals currently held in ICE detention have no criminal record. Persons should have, at a minimum, the ability to appeal a determination that would subject to them to long-term detention without an opportunity to seek bond, especially those persons without a criminal record.

The Supreme Court upheld the statute allowing for detention during removal proceedings,
but has recognized that the application of the statute—including its mandatory detention provisions —can raise constitutional concerns in individual cases. As of August 2023, the median wait time for detained cases is 43 days,14 but nearly 1000 noncitizens have been in ICE custody for more than six months, and nearly 300 have been detained for more than a year.15 Cases of prolonged detention have resulted in several successful habeas challenges, with courts finding cases of immigration detention to be presumptively unreasonable, and therefore unconstitutional, absent an individualized custody determination.

We encourage your Departments to take action to reduce the likelihood of such due process
failures in our immigration bond system. Specifically, we urge you to amend your Departments’
guidance and regulations to—

1) Shift the burden of proof to the government in immigration bond proceedings, as is done in
criminal proceedings;
2) Require consideration of a noncitizen’s ability to pay when making a determination on bond
amount;
3) Give noncitizens determined by ICE to be subject to mandatory detention an opportunity to
request a review of such determination; and
4) Schedule periodic assessments for all those in immigration detention to determine whether
detention has become or will likely become unreasonably prolonged, such that due process
requires an individualized bond hearing.

Thank you for your time and consideration. We look forward to working with you in
advancing due process protections for those in ICE custody.

Sincerely,

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