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Foreign Prisoners & Immigrants

     Monthly Law Journal Article: Use of Force Against Immigration Detainees, 2011 (1) AELE Mo. L. J. 301.

     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.).

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