The Honorable Jeh Johnson
Department of Homeland Security
3801 Nebraska Ave, NW
Washington, DC 20528
Dear Secretary Johnson:
We are pleased that the Department of Homeland Security (DHS) is conducting a review of its deportation practices and write to encourage you to consider badly-needed reforms to DHS's detention policies as part of that process. We remain deeply concerned by the dramatic increase in immigration detention in recent years. As you know, in Fiscal Year (FY) 2012 -- the most recent year for which statistics are publically available -- Immigration and Customs Enforcement (ICE) detained a record 478,000 individuals, a nearly 500 percent increase over the last decade. All told this year, American taxpayers will spend over $2 billion to maintain 34,000 detention beds -- a congressionally imposed, arbitrary number that does not reflect the actual needs of your agency. We are heartened by your recent testimony before the House Appropriations Subcommittee on Homeland Security clarifying that the Department will continue to reasonably interpret this quota as a requirement to maintain those detention beds, but not to keep them full unless necessary.
While we continue to press for legislative reforms in Congress, we urge you to make the following administrative changes to your Department's immigration detention policies:
1. Adopt a national standard providing all immigrants in prolonged detention with a bond hearing after no more than six months, consistent with recent circuit and district court decisions.
ICE continues to detain individuals for months or even years while their cases are pending. Many either receive no review of their prolonged detention, or only paper reviews by DHS that serve to "rubber stamp" their continued incarceration. We strongly encourage you to adopt a national standard providing all immigrants in prolonged detention with a bond hearing before an immigration judge after no more than six months, where the government bears the burden of justifying their continued incarceration. This is in line with Supreme Court precedent holding that prolonged detention without review by a judge raises serious constitutional concerns. Recently, the U.S. Court of Appeals for the Ninth Circuit adopted this six-month rule and it should now be expanded nationwide.
2. Revise the Department's interpretation of mandatory custody.
The DHS interpretation of mandatory custody under 8 U.S.C. § 1226(c) should include supervision of individuals on alternative forms of custody that are short of physical, jail-like detention. The statute does not place any textual limitation on the meaning of "custody" and the term is not defined in the Immigration and Nationality Act (INA) or other immigration regulations. In addition, the Supreme Court has ruled that determining whether someone is in "custody" should be based upon the identity of the custodian and not the form of custody employed.
Such an interpretation would allow for expanded use of proven alternatives to detention (ATD), which represent a highly effective means of meeting the goals of civil immigration detention. ATD also cost between 17 cents and $17 dollars per day making them much more cost effective than physical detention, which costs around $159 dollars a day. Moreover, they constitute a more humane option for vulnerable individuals, such as mentally ill, elderly, and pregnant immigrants.
3. Bring all facilities into line with the 2011 Performance-Based National Detention Standards (PBNDS) and additional directives, and take steps to close down facilities with a history of abuse.
ICE's facilities, which include private prisons, state and local jails, as well as ICE-owned facilities, operate under widely varying detention standards, including prior versions of the PBNDS dating from 2000 and 2008. ICE reports that approximately 40 percent of the agency's average population is not covered by the most recent 2011 PBNDS. All ICE facilities should operate under the 2011 PBNDS, the Prison Rape Elimination Act regulations, and the 2013 Segregation Directive. DHS should also rigorously evaluate facilities, make all reports and audits of detention facilities public in a timely manner, and end contracts with any facilities where the two most recent overall performance evaluations received by the facility were less than "adequate," as required by the Consolidated Appropriations Act of 2014.
These common-sense reforms will help ensure that our nation conducts immigration enforcement in a more fair, cost-effective and humane way and we urge you to swiftly adopt them. We look forward to continuing to work with you on immigration policy and other critical issues facing our nation.
Congresswoman Lucille Roybal-Allard
Congressman Theodore E. Deutch
Congressman Bill Foster
Congressman Adam Smith
Congressman Beto O'Rourke
Congressman Raul M. Grijalva
Congressman Sam Farr
Congressman Albio Sires
Congresswoman Dina Titus
Congressman Marc A. Veasey
Congressman James P. McGovern
Congresswoman Janice D. Schakowsky
Congresswoman Suzan K. DelBene
Congresswoman Gwen Moore
Congressman Jared Polis
Congressman Rush Holt
Congresswoman Barbara Lee
Congressman Mike Quigley
Congressman Jim McDermott
Congressman Tony Cardenas