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Foreign Prisoners & Immigrants
Monthly Law Journal Article: Use of Force Against Immigration Detainees, 2011 (1) AELE Mo. L. J. 301.
A female immigration detainee at a county immigration family center claimed that a male employee violated her Fourteenth Amendment right to bodily integrity after the two had sex. The employee’s co-workers and supervisor were allegedly deliberately indifferent to the violation and the county was accused of failing to implement policies to prevent such conduct. A federal appeals court upheld the denial of individual defendants’ motion for qualified immunity. It ruled that immigration detainees are entitled to the same constitutional protections afforded by the Due Process Clause of the Fourteenth Amendment as pre-trial detainees and that the plaintiff’s rights in this context were clearly established. Enough evidence was found to support an inference that the defendants knew of the risk facing the plaintiff and that their failure to take additional steps to protect her, acting in their capacity as either a co-worker or supervisor, could be viewed by a factfinder as the sort of deliberate indifference to a detainee’s safety that is constitutionally forbidden. E.D. v. Sharkey, #18-1688, 2019 U.S. App. Lexis 19686, 2019 WL 2723370 (3d Cir.).
The federal government appealed a trial court’s ruling that it was unnecessary to detain the defendant, a criminal defendant alien, in order to ensure that he was present at his criminal trial, and that his release meant that ICE was barred from civilly detaining him for purposes of removing him from the U.S. A federal appeals court upheld the decision declining to detain the defendant pending trial, determining that the trial judge did not “clearly err” in ruling that he was not a flight risk. At the same time, however, the appeals court overturned the portion of the ruling barring ICE from civilly detaining the defendant pending immigration removal. There was no constitutional conflict when the Department of Homeland Security’s detention of a criminal defendant alien for the purpose of removal did not infringe on the judiciary’s role in criminal proceedings. U.S. v. Vasquez-Benitez, #18-3076, 919 F.3d 546, (D.C. Cir. 2019).
Former civil immigration detainees who had been treated for serious mental illnesses sued a county and other defendants, claiming that the failure to engage in “discharge planning” or to provide them with discharge plans upon release violated their Fourteenth Amendment substantive due process rights. They had been released when it was determined that they were lawfully in the United States. A federal appeals court vacated the dismissal of the lawsuit, finding that it adequately stated a Fourteenth Amendment claim. The plaintiffs plausibly alleged that they had serious medical needs requiring discharge planning and that the defendants’ failure to provide discharge planning constituted deliberate indifference. One plaintiff, diagnosed in a New York detention center as a paranoid schizophrenic, was released in below-freezing temperature with no medication or treatment plan. A second, diagnosed as a bipolar schizoaffective, was allegedly released and pushed into the cold with nothing but the clothes on his back and identification. They both wound up in emergency rooms shortly thereafter. The court stated that the county knew or should have known that “failing to provide the omitted medical treatment would pose a substantial risk to the detainee's health.” Charles v. Orange County, #17-3506, 925 F.3d 73 (2nd Cir. 2019).
Under 8 U.S.C. 1226(a), the Secretary of Homeland Security, under a federal statute, 8 U.S.C. 1226(a), generally has the discretion to arrest and hold a deportable alien pending a removal decision or to release the alien on bond or parole. Section 1226(c), enacted out of “concern that deportable criminal aliens who are not detained continue to engage in crime and fail to appear,” sets out four categories of aliens who are inadmissible or deportable for bearing links to terrorism or for committing specified crimes. Paragraph (1) directs the Secretary to arrest any such alien “when the alien is released” from jail, and paragraph (2) forbids the Secretary to release any “alien described in paragraph (1)” pending a removal determination. Aliens detained under 1226(c)(2), alleged that because they were not immediately detained by immigration officials after their release from criminal custody, they are not aliens “described in paragraph (1),” even though they fall into at least one of the four categories. The U.S. Supreme Court reversed the Ninth Circuit, holding that the statute’s text does not support the argument that because the aliens were not arrested immediately after their release, they are not “described in” 1226(c)(1). Congress’s use of the definite article in “when the alien is released” indicates that the scope of the word “alien” “has been previously specified in context,” so the class of people to whom “the alien” refers must be fixed by the predicate offenses identified in subparagraphs (A)–(D). Paragraph (c)(2) does not limit mandatory detention to those arrested “pursuant to” or “under authority created by” (c)(1), but to anyone simply “described in” (c)(1). Accordingly, the plaintiffs were properly detained under the statute even if it occurred months or even years after their release from custody from a jail or prison. Nielsen v. Preap, #16-1363, 203 L. Ed. 2d 333, 2019 U.S. Lexis 2088, 2019 WL 1245517.
A woman claimed that employees of a county jail violated her constitutional rights when she was detained there on suspicion that she was illegally in the U.S. The trial court correctly ruled that the claim was governed by the Fourth Amendment rather than the Fourteenth, so that a lack of probable cause to detain and continue to detain her was required for liability rather than a deliberate indifference to her right to release, but failed to conduct the required individualized analysis of each defendant’s actions and omissions and whether they were causally related to the alleged violation of the plaintiff’s rights. Because of this, a federal appeals court reversed the denial of summary judgment and ordered the trial court to conduct an individualized analysis. Alcocer v. Mills, #17-14804, 2018 U.S. App. Lexis 28435 (11th Cir.).
Foreign minors who entered the country unaccompanied by a parent or guardian were put in the custody of the U.S. Office of Refugee Resettlement (ORR) which later released the plaintiff minors to a parent or sponsor after concluding that each minor was not dangerous to himself or the community, and was not a flight risk. Each minor was subsequently rearrested because of alleged gang membership and transferred to secure juvenile detention facilities. A federal appeals court upheld the trial court’s preliminary injunction requiring a prompt hearing before a neutral decision maker at which the minors could contest the basis for their rearrest. The appeals court ruled that the trial court did not abuse its discretion in concluding that the minors were entitled to some sort of due process hearing and ordering the government to provide members of the minor class with the procedural protections set forth in its order. The injunction was consistent with a federal statute, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, 8 U.S.C. § 1232(c)(2)(A), providing that ORR should place unaccompanied children in the least restrictive setting that is in the best interest of the child. Saravia v. Sessions, #18-15114, 2018 U.S. App. Lexis 27779 (9th Cir.).
A federal appeals court upheld a preliminary injunction against alleged inhumane and punitive treatment in a lawsuit brought by civil detainees confined in U.S. Customs and Border Protection facilities in the Tucson, Arizona area. The appeals court ruled that the trial court did not abuse its discretion in granting a preliminary injunction requiring that the defendants provide the detainees with mats and blankets after 12 hours, and properly applied prior precedent, supported by evidence in the record. Doe v. Kelly, #17-15381, 878 F.3d 710 (9th Cir.).
The U.S. government entered into a settlement agreement in
a 1997 class action lawsuit, setting out a "nationwide policy for the
detention, release, and treatment of minors in the custody of the INS."
The plaintiff class in 2015 filed a motion to enforce the settlement, arguing
that it applied to all minors held in the custody of immigration authorities,
regardless of whether or not they were accompanied by parents. A federal
appeals court agreed, but further held that this did not create affirmative
release rights for parents, as the trial court erroneously held. The fact that
the settlement agreement granted minors a right to preferential release to a
parent did not mean that the government had any obligation to make a parent
available for that purpose. Flores v. Lynch, #15-56434, 2016 U.S. App. Lexis
12439 (9th Cir.).
An immigration
detainee claimed that he was kept in the custody of immigration authorities for
almost 11 months, far longer than the 90-day statutory period for removal under
the Immigration and Nationality Act (INA), 8 U.S.C. 1231(a)(1)(A). He sought to
assert a Bivens federal civil rights claim against various government officials
on the basis that they allegedly made false statements to prolong his
detention, knowing that the removal order could not legally be carried out. A
federal appeals court held that no such civil rights claim was available to the
plaintiff because the INA provides for sufficient meaningful remedies and
Congress did not provide any avenues for the plaintiff and similarly situated
aliens to seek money damages. Alvarez v. ICE, #14-14611, 016 U.S. App. Lexis
5506 (11th Cir.).
An immigration detainee was being held at a
county facility at the direction of federal immigration authorities. She sued
both federal and county defendants for failing to protect her from attack by
another detainee who threw a lightweight plastic chair at her, allegedly after
she had reported prior threats to a correctional sergeant and an immigration
agent. The plaintiff failed to establish that her statements made the
immigration agent aware of facts from which an inference of a substantial risk
of serious harm existed. The sergeant was also entitled to summary judgment as
a reasonable jury could not find that a little red mark on the plaintiff's
cheek resulting from the attack was objectively serious, particularly as the
plaintiff did not seek medical attention, and the injury was treated with one
pain pill. Chavero-Linares v. Smith, #13-3532, 2015 U.S. App. Lexis 5931 (8th
Cir.).
Under the mandatory detention provisions of the Immigration and
Nationality Act, 8 U.S.C. 1226(c), the federal government is required to take
into custody any alien who has committed certain specified crimes when released
from state custody. Such aliens are generally ineligible for bail. In this
case, two aliens who committed specified offenses were not taken into federal
custody, however, until years after being released from state custody. They
filed habeas corpus petitions, arguing that their detentions without an
opportunity for release on bond were legally unauthorized. A federal appeals
court agreed, holding that they were not subject to mandatory detention under
the specified section of the statute because they were not detained in a timely
manner after their release under any reasonable interpretation of the law. The
proper remedy was requiring an individualized bond hearing. Castaneda v. Souza,
#13-1994, 2014 U.S. App. Lexis 19048 (1st Cir.).
A U.S. citizen could pursue his claim against two
immigration agents alleging that he wrongfully spent time in pre-trial
detention on state criminal charges, unable to obtain the services of a bail
bondsman because the agents had improperly lodged an immigration detainer
against him, despite his citizenship status. Mendia v. Garcia, #12-16220, 2014
U.S. App. Lexis 18654 (9th Cir.).
The estate of a female immigration detainee who
committed suicide in a county jail has settled a federal civil rights lawsuit over
the death for at least $1 million. The defendants were a private medical group
and one of its employees alleged to have acted with deliberate indifference to
the detainee's serious medical needs at the detention center. In an earlier
decision in the case, a federal appeals court found that the woman should have
been placed on suicide watch for her depression. The court found that there was
evidence that could show that one employee of a private firm providing medical
services at the jail had been aware of the detainee's depressed condition and
suicidal thoughts, but failed to take any steps to prevent her from killing
herself. The summary judgment on claims against the county, the sheriff, the
jail's director, and two other employees of the medical firm was upheld.
Belbachir v. McHenry Cnty., #13-1002, 726 F.3d 975 (7th Cir. 2013)."The
failure to take a simple, inexpensive, obvious and indeed prescribed measure to
avoid (suicide) is inexcusable." Belbachir v. County of McHenry,
#06-C-1392, U.S. Dist. Court (N.D. Ill.), reported in Chicago Tribune (April
14, 2014).
Female immigration detainees, who were ordered
released after presenting a prima facie case for asylum, claimed that they were
each sexually assaulted by a male employee of a private prison company while he
was transporting them from an immigration detention center where they had been
interviewed to a bus station or airport, with no other officers present. He
pled guilty to federal and state charges stemming from the assaults. While two
defendant federal officials knew of a contractual requirement that such
transported immigration detainees be escorted by at least one officer of the
same gender, and that the aim of this was to deter such assaults, their alleged
failure to take action to enforce that condition did not violate a clearly
established constitutional right. Doe v. Robertson, #13-50459, 2014 U.S. App.
Lexis 8534 (5th Cir.).
A U.S. citizen working at a construction site was
arrested along with other employees and the contractor, after the contractor
allegedly sold drugs to an undercover officer. When arrested, the plaintiff had
a wallet with his driver's license, Social Security card, debit card, and
health insurance card. His place of birth was listed as in New Jersey. Despite this,
an officer, believing that he had given false information, contacted
immigration authorities, who issued an immigration detainer, The detainee later
sued, claiming that he was improperly detained without probable cause for over
48 hours, without notice of the basis of his detention or an opportunity to
contest it. A federal appeals court reversed the dismissal of his false
imprisonment claim. An immigration detainer is permissive, and did not compel
the defendants to detain him. They were free to disregard it, and therefore
could not use as a defense that their own decision or policy did not cause the
alleged deprivation of constitutional rights. Galarza v. Szalczyk, #12-3991,
2014 U.S. App. Lexis 4000 (3rd Cir.).
Detainees at Guantanamo Bay who were cleared for
release but remain detained there went on a hunger strike demanding their
release, and were force fed. A federal appeals court held that they had the
right to challenge the conditions of their confinement in a habeas corpus
proceeding, and that their claims were not barred by the Military Commissions
Act. The prisoners, however, failed to establish that they were entitled to a
preliminary injunction against the forced feeding, since it served legitimate
penological interests in preserving the lives of the detainees and maintaining
security and discipline. They failed to show a likelihood that the
force-feeding was unconstitutional. The court also ruled that the protections
of the Religious Freedom Restoration Act did not apply to the detainees. As
nonresident aliens, they were not protected persons under the statute. Aamer v.
Obama, #13-5223, 2014 U.S. App. Lexis 2513 (D.C. Cir.).
A man who was a U.S. citizen began a DUI home
confinement sentence wearing a monitoring device. A federal immigration
detainer was received by correctional officials for an unlawful alien with a
similar but not identical name and birth date. Officers took him to jail since
the department had a policy of incarcerating those for whom it received such
detainers and did not conduct an independent investigation of his citizenship.
He was incarcerated for three days. Both the city officers and the immigration
official who issued the detainer were entitled to qualified immunity, which the
court commented protects everyone but the "plainly incompetent."
Ortega v. U.S. Immigration & Customs Enforcement, #12-6608,737 F.3d 435
(6th Cir. 2013).
A class of noncitizens was entitled to a
preliminary injunction against their continued detention under federal
immigration statutes without individualized bond hearings and a judicial
determination as to whether their continued detention was justified. The
plaintiffs were likely to prevail on their claim that a federal statute only
allowed for six months of mandatory detention for alleged violations of
immigration statutes, after which a bond hearing was required. Rodriguez v.
Robbins, #12-56734, 2013 U.S. App. Lexis 7565 (9th Cir.).
A man who was detained for eight months by
immigration authorities was initially agreed to be a U.S. citizen by the
defendants in a lawsuit that he brought over his alleged unlawful seizure and
false imprisonment. As a citizen, these claims were not barred under a 1996
immigration act, but did bar such claims by aliens. After the trial court
dismissed his lawsuit for failing to state a claim, the federal government
cancelled his U.S. citizenship, contending that it had been obtained illegally
and fraudulently. A federal appeals court ordered proceedings in the trial
court to determine whether the plaintiff was a citizen, as, only then could he
pursue his claims and an appeal of the dismissal by the trial court. Belleri v.
United States, #12-11564, 712 F.3d 543 (11th Cir. 2013).
An immigration detainee claimed that medical
personnel failed to give him pain medication that he was prescribed after hand
surgery, inhibiting his rehabilitation and causing permanent injury to his
hand. Rejecting this claim, the appeals court noted that the medication had to
be taken with food, and that the detainee failed to benefit from the medical
treatment provided because he refused to eat the food he was dissatisfied with.
His reason for doing so was that he wanted halal meals containing meat, for
religious reasons, but he was provided with vegetarian meals that did not
violate his right to religious freedom. Any denial of pain medication was based
on his refusal to eat. Adekoya v. Chertoff, #11-1990, 2011 U.S. App. Lexis
12685 (Unpub. 3rd Cir.). Editor's Note: As an immigration detainee, the
plaintiff was entitled to the same protections as a pretrial detainee, those
provided by the due process clause of the Fourteenth Amendment. In this case,
the court found that the medical care provided did not constitute punishment
that violated due process.
An excessive force claim filed by a federal
immigration detainee held in a county jail presented two legal issues,
according to a federal appeals court: "What provision of the Constitution
should this court use to analyze a federal immigration detainee's claim of excessive
force? And does a county's failure to adopt a prophylactic policy with a
standard of care higher than what the Constitution requires suffice, by itself,
to suggest deliberate indifference to the Constitution's protections against
excessive force?" The court concluded that due process, rather than the
Fourth or Eighth Amendment, provided the proper legal standard to analyze such
an excessive force claim by immigration detainees who did not challenge the
lawfulness of their detention, and that, in order to create a triable issue of
fact on the use of excessive force in such a case, the detainee must do more
than show that the county failed to adopt the "most protective possible
policy" against the application of force. The detainee was removed from
his cell and placed in a restraint chair after becoming disruptive in his cell.
A member of the certified emergency response team ("CERT") dealing
with him then allegedly proceeded to taser him "at least three times"
while he was restrained. The trial court found this use of force excessive, and
awarded the detainee $100,000 in damages against the officer who used the taser
against him. Summary judgment was granted, however, to the county, on the basis
that all the evidence suggested that the tasering was no "more than a
random act or isolated event which occurred outside of the policies and
procedures implemented by" the county sheriff. The award against the
individual officer was not appealed. Applying the due process standard, the
appeals court rejected the claim that the officer's supervisor, who had not
himself been personally involved in the use of force, should also be held
individually liable. It also rejected claims that the supervisor or sheriff, in
their official capacities, should be liable for failure to adequately train
CERT team members. "The undisputed facts show that the county trained
jailers to use tasers only if and when an inmate should become violent,
combative, and pose a direct threat to the security of staff. The record also
shows that" the officer knew he was acting in defiance of this policy when
he tasered the detainee. Far from exhibiting deliberate indifference to the
detainee's due process rights against the use of excessive force or causing his
injury -- "the county actively sought to protect those rights" and it
was only the officer's improper actions, taken in defiance of county policy,
that caused the detainee's injuries. The appeals court rejected the
argument that the county's "failure to enforce a prophylactic policy imposing
a standard of care well in excess of what due process requires," banning
the use of a taser on an immigration detainee, was "enough by itself to
create a triable question over whether county officials were deliberately
indifferent to the Constitution." Porro v. Barnes, No. 10-6002 2010 U.S.
App. Lexis 2324 (10th Cir.).
A Mexican citizen convicted of murder could not
show that he had a right to relief based on officials' failure to advise him of
his rights, under the Vienna Convention on Consular Relations, to consular
notification and assistance. The prisoner based his claim on a 2005
Presidential Memorandum that directed state courts to give effect to a 2004
decision of the International Court of Justice (ICJ) concluding that the United
States had violated the rights of 51 Mexican nationals then on death row,
including the petitioner, by failing to comply with the Vienna Convention. The
U.S. Supreme Court subsequently rejected claims similar to the petitioner's,
and held that neither the Presidential Memorandum nor the ICJ decision
preempted state procedural limits on filing successive habeas corpus petitions.
The prisoner was barred from raising the issue involved since he had previously
done so and had been denied relief on the merits of the claim. In re Martinez,
#S141480, 2009 Cal. Lexis 6016.
A Colombian citizen in a Georgia prison could not
pursue, under the Alien Tort Statute, 28 US.C. Sec. 1350, a claim for violation
of his rights under Article 36 of the Vienna Convention on Consular Relations
(VCCR) concerning the right to have the consulate of his country notified of
his incarceration. The fact that he sued under the Alien Tort Statute rather
than under 42 U.S.C. Sec. 1983 did not alter the result. In the prior Gandara
v. Bennett, #06-16088, 528 F.3d 823 (11th Cir. 2008) decision, the court held
that the VCCR did not create rights or remedies enforceable through a §
1983 lawsuit. Lopez v. Wallace, #08-15307, 2009 U.S. App. Lexis 8721 (Unpub.
11th Cir.).
The U.S. Supreme Court in Boumediene v. Bush, No.
06-1195, 2008 U.S. Lexis 4887, ruled that aliens detained at Guantanamo Bay,
Cuba as enemy combatants after their capture in Afghanistan or elsewhere
overseas are constitutionally entitled to pursue claims for habeas corpus, and
found that the procedures provided in a 2005 statute for review of the
detainees' status are inadequate and constitute an unconstitutional suspension
of the writ of habeas corpus. In another case, Munaf v. Geren, No. 06-1666,
2008 U.S. Lexis 4888, decided the same day, June 12, 2008, the Court ruled that
the habeas corpus statute applies to U.S. citizens held overseas by U.S.
military forces, such as in Iraq, even if those forces are operating as a
component of an multinational coalition. The U.S. citizens being detained had traveled
voluntarily to Iraq and are alleged to have committed crimes there. The Court
further ruled, however, that the particular plaintiffs in that case were not
entitled to relief to enjoin the U.S. from transferring them to the custody of
Iraqi authorities for criminal prosecution.
In a case (Avena and Other Mexican Nationals)
involving 51 Mexican nationals confined in U.S. prisons, the International
Court of Justice (ICJ) ruled that the U.S. had violated Article 36(1)(b) of the
Vienna Convention on Consular Relations by failing to provide them with notice
of their rights to contact the Mexican consulate after they were taken into
custody. The ICJ, therefore, held that each of these individuals were entitled
to review and reconsideration of the U.S. state court convictions, even if they
had failed to comply with otherwise applicable state rules concerning the
challenging of those convictions. In a prior decision, Sanchez-Llamas v.
Oregon, No. 04-10566, 548 U.S. 331 (2006), the U.S. Supreme Court ruled that
the Convention did not negate the need to apply state rules. The President of
the United States, however, issued a memo stating that the U.S. would
"discharge its institutional obligations" and have state courts
follow the ICJ decision. The Plaintiff in the immediate case, incarcerated
in Texas, then filed a Texas state court habeas application challenging his
capital murder conviction and death sentence because of the failure to inform
him of his rights under the Vienna Convention. The U.S. Supreme Court has now
held that neither the ICJ decision nor the President's memo are directly
enforceable federal law which would pre-empt state limits on the filing of
successive habeas petitions. The court further found that a treaty such as the
Vienna Convention is not binding domestic law in the U.S. when Congress has not
passed statutes to implement it, except if the treaty itself conveys an
intention that it be "self-executing." The plaintiff's habeas
petition was therefore properly dismissed. Medellin v. Texas, No. 06-984, 2008
U.S. Lexus 2912.
A Muslim inmate who was an Egyptian citizen
failed to show that the vegetarian meal plan offered him violated any of his
personal religious beliefs, and a nutritional analysis of the food offered
indicated that it satisfied recommended dietary allowances. Additionally, the
plan offered was created after consultation with a Muslim clergyman. The court
also found that the prisoner did not have an unqualified or absolute right to
send confidential mail from the prison to the Egyptian embassy or consulate, so
that the alleged refusal to allow him to do so could not be the basis of a
civil right claim. Sefeldeen v. Alameida, No. 05-15809, 2007 U.S. App. Lexis
13508 (9th Cir.).
A man born in Qatari, who was lawfully in the
U.S., and who has been detained without charges since 2003, when President Bush
designated him as an "enemy combatant," was ordered released by a
federal appeals court. The court, by a 2-1 vote, ruled that holding civilians
as detainees without charges for an unlimited period of time could result in
"disastrous consequences for the Constitution, and the country." The
court also found that there was no evidence that the detainee had been engaged
in the use of arms against the U.S. on a battlefield or in a combat zone, and
was therefore not an enemy combatant. The U.S. government was ordered to
release him, within a reasonable time, from military custody. He could still,
the court noted, be subjected to either criminal charges, if any were brought,
or to deportation proceedings. Al-Marri v. Wright, #06-7427, 2007 U.S. App.
Lexis 14109 (4th Cir.).