Set Text Size:

S

S

S

AILA Testimony on Due Process

Cite as "AILA InfoNet Doc. No. 01120659 (posted Dec. 6, 2001)"

Testimony of Michael Boyle
American Immigration Lawyers Association

Before the Committee on the Judiciary
United States Senate

Regarding

Current U.S. Policies and Practices
Related to the Detention of Noncitizens

Mr. Chairman and distinguished Members of the Subcommittee, I am honored to be here. My name is Michael Boyle. I appear here today as one of the attorneys for Ali Al-Maqtari, whose compelling story you just heard. I also appear here today as a member of the American Immigration Lawyers Association, the national bar association of nearly 8,000 attorneys and law professors who represent the entire spectrum of applicants for immigration benefits. I appreciate this opportunity to present our views on current U.S. immigration policy and practices related to the detention of noncitizens.

The Department of Justice is engaged in a critically important law enforcement effort. AILA supports every effort to identify, prosecute and bring to justice the perpetrators of the heinous crimes of September 11. However, we are deeply concerned about a series of new policies and regulations issued unilaterally by the Department of Justice in the last few months. These policies go far beyond existing law and the parameters set by Congress and the Administration in the USA PATRIOT Act. These procedures have been instituted without notice and comment or public debate.

Our Constitution was written to protect everyone in our country. The sweeping, new practices limit our freedoms in dangerous ways. Widespread arrest of noncitizens based on ethnic profiling, secret court hearings, long detention based on suspicion rather than concrete evidence, and wiretapping conversations between attorneys and clients are not the American way. Yet the Justice Department's new practices and regulations allow local INS and other Justice Department employees to employ them on a widespread basis, with little accountability to the American people. While every step must be taken to protect the American people from further terrorist acts, we need to preserve the basic rights and protections that make American democracy so unique and precious. Reining in excessive practices that corrode those basic rights is critical to the defense of our democracy.

The five new practices that I will discuss damage our democracy and Constitution. First is the unprecedented level of secrecy under which detentions now occur. Second is the question of whether these detainees are being provided meaningful access to counsel. Third is a new regulation issued by the Justice Department that allows people to be detained for an unspecified period of time without even being charged with an immigration violation. Fourth, a new regulation has been issued that allows the government to eavesdrop on the conversations between lawyers and clients who are in federal custody, including people who have been detained but not charged with any crime. Finally, I will discuss a new regulation issued by the Justice Department that authorizes the continued detention of noncitizens who have been ordered released on bond by an immigration judge.

The Veil Of Secrecy Over The Detention Of Noncitizens Violates Fundamental Principles in Our Judicial System

Our judicial system is founded on the principle of openness. Since the birth of this country we have recognized that only through an open process and an informed society can justice be achieved. As James Madison said, "Knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy or perhaps both."

Despite our history of openness, one of the most disturbing developments in the government's current course of action has been the refusal to provide information about the more than 1,200 people who have been arrested since September 11. To illustrate, the Attorney General issued an internal memo, on October 12, which appears to encourage agency efforts to withhold information sought under the Freedom of Information Act (FOIA). The memo stated, "When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records." On November 8, after conflicting statements from the White House and the DOJ about the status of the detainees, the DOJ announced they would no longer release the number of detentions. Although the Justice Department recently released a list of the number of people who been charged with specific immigration violations and their countries of origin, questions remain unanswered. Who is being detained? Where are they being held? How many remain in INS custody without being charged? How many detainees remain unrepresented by counsel? These and other questions remain unanswered more than two months after the initial arrests and despite repeated inquiries and the filing of formal FOIA requests. This silence is unacceptable.

A similar pattern of secrecy has arisen in immigration courts. Chief Immigration Judge Michael Creppy, on September 21, issued a memo instructing immigration judges to hold certain hearings separately, to close these hearings to the public, and to avoid discussing the case or otherwise disclosing any information about the case to anyone outside of the immigration court. These restrictions also apply to confirming or denying whether such a case is on the docket or scheduled for a hearing. These new policies have obviously made it very difficult for the lawyers representing these clients, and for the families that have been torn apart by this sweeping investigation. This new policy is also disturbing in that the Department of Justice is not required to provide any basis or explanation for why proceedings will be closed. Any case involving any immigration matter may be closed simply because the Department of Justice wants it to be closed.

In testimony before this committee last week, the Justice Department defended its actions by asserting that "nothing prevents any of these individuals from identifying themselves publicly or communicating with the public." This view abrogates the responsibility that the government has to disclose who it is holding.

The government has given the following reasons for not disclosing information about detainees. First, that immigration law prohibits such disclosure. Second, that such disclosure would violate the privacy of the detainees. And three, that releasing the information would provide valuable information to Osama bin Laden. Let me address these concerns. There is nothing in immigration law to prohibit the disclosure of information about detainees. In fact, this information has been routinely made available in the past. In addition, detainees who have gone missing from their families and communities will surely not benefit from continued secrecy regarding where and why they are being held, and the conditions of their detention. Finally, senior law enforcement official have said that of the more than 1,200 reported detentions, only 10 to 15 are suspected as Al Qaeda sympathizers, and that the government has yet to find evidence indicating that any of them had knowledge of the Sept. 11 attacks or acted as accomplices. However, the government continues to justify the refusal to provide information on grounds that the release of information would harm the investigation of the September 11 attacks. With the exception of the 10-15 suspected terrorists, it makes little sense to continue refusing to release information about the detainees.

The government's statement that the detainees themselves can publicize their detention also ignores the realities that these detainees face while imprisoned in the immigration system. In many cases, detainees have been limited to only one collect call per week and are denied visits from even close family members. This severely limits their ability to find an attorney to represent them. In all of the confusion and fear surrounding their detention, and in the face of isolation from friends and family, the idea that detainees are free to make their cases and conditions known to the outside world is simply not believable. Holding secret hearings compounds these problems. Secret hearings should not be the norm, and should not be granted without input from both parties. Open hearings, subject to the scrutiny of the public and press, are a fundamental American right.

The Experience of Detainees Around the Country Raise Questions About The Treatment of Other Detainees and Their Access to Counsel

Based on reports from immigration attorneys and newspapers around the country, we are concerned that the cases you have heard today are not isolated, exceptional incidents, but are part of a pattern of excessive detention and disrespect for the rights of noncitizens. Here are some examples:

  • In Ohio, 11 Israelis were arrested in the early morning hours of October 31 by federal law enforcement agents with guns drawn. They were charged with violating the terms of their tourist visas by selling toys and trinkets in shopping malls. Upon arrest, they reported that law enforcement officials told them that they did not need to contact counsel and that things would be more "complicated" and the detention would be "longer" if counsel was retained in their defense. None of the detainees were advised that they had the right to retain counsel or that any statements they made could be used in a "subsequent proceeding", as is required by regulation. At least one detainee was asked "how much torture" he could endure before "telling the truth." Two of the female detainees were subjected to a degrading and humiliating "pat down" search by a male INS officer as a prerequisite to using the restroom.

    After nearly a week in detention, they were able to retain counsel who filed a motion for bond before an immigration judge. At the hearing, the government designated the case a "special interest case" claiming that the 11 were suspected of terrorist activity. Yet, in two separate bond hearings the government failed to produce any evidence in support of its assertions. Indeed, the only evidence produced to the Immigration Judge were documents reflecting possible unauthorized employment.

    After giving the INS every opportunity to present evidence of terrorist activity or a national security threat, including the option of an in-camera inspection, the immigration judge ordered bond in each case. She issued a written memorandum concluding that the government had produced no evidence of terrorist activity or danger to the community. However, despite the complete lack of evidence, the INS, under the direction of the FBI, immediately stayed the release of the 11 through a newly amended INS regulation that effectively gives the Justice Department the power to stay custody, possibly for months. Two days later, after the press began to inquire into the situation, the FBI authorized INS to allow the release of nine of the eleven detainees. Two weeks later, after an Immigration Judge granted all eleven voluntary departure, the other two Israelis were released but ordered by the FBI to remain in the United States under a "Safeguard Order."

    To this day, the Department of Justice has not presented a scintilla of evidence justifying these detentions. All eleven had valid documents that were easily verifiable by the Israeli Consul. All had entered the US legally. All were within the respective periods of stay authorized by the Attorney General. And none had a criminal record of any kind anywhere in the world. The FBI continues to refuse two of the Israelis permission to depart for Israel.

  • On September 13, Tarek Mohamed Fayad was arrested after stopping at a gas station near his home in Colton, California. The 34-year-old Fayad, an Egyptian dentist who came to the United States in 1998 to study, says four agents ordered him to lie on the ground, telling him INS "thinks you're illegal." He was driven back to his home where he surrendered his passport and immigration papers. The officers searched his home and then arrested him on charges that he had violated the terms of his student visa.

    Mr. Fayad was originally held on $2,500 bond in a Los Angeles, California jail. Four days after his arrest, Mr. Fayad's American girlfriend and another friend, Mahmoud Bahr, came to post the bond. When they arrived, they were told that the bond had been rescinded. At the same time, Mr. Bahr was detained and questioned for eight hours.

    After September 17, he was transferred to unknown locations that were later determined to be a Lancaster facility and the Metropolitan Detention Center in Los Angeles were he was questioned by FBI agents. Around September 20, he was taken to New York and held in Brooklyn's Metropolitan Detention Center, where the FBI again questioned him. Guards there would frequently taunt him by calling him a terrorist. At night, they woke him every half an hour. Despite this treatment Mr. Fayad cooperated fully and even agreed to take a lie detector test.

    Back in California, the friends who tried to post bond became very concerned when they could no longer locate Mr. Fayad. They contacted the Egyptian embassy, but they were also unable to locate him (in fact, the Embassy did not learn of his whereabouts until November). Mr. Fayad's friends hired attorney Valerie Curtis-Diop to find and represent Mr. Fayad. Ms. Curtis-Diop called INS, and the U.S. Marshall's office, but was unable to determine where he was being held. At some point, Ms. Curtis-Diop was given a federal register number for Mr. Fayad, and was told that he was being held in "witness security." Even with that number, Ms. Curtis-Diop could not confirm where he was being held. Despite information that Mr. Fayad was in the custody of the Bureau of Prisons, the Bureau refused to acknowledge to Ms. Curtis-Diop that they had Mr. Fayad. It would be more than a month before Ms. Curtis-Diop was able to locate her client. To this day, calls to the Bureau of Prisons result in a denial that Mr. Fayad is in their custody.

    When Mr. Fayad had originally asked about an attorney in late September, he was given a list of 16 agencies. It wasn't until early October that Mr. Fayad was allowed to make phone calls to try and secure counsel. Phone calls to attorneys are restricted and "social" calls are allowed only once a month. Only two of the agencies on the list provided to Mr. Fayad provide legal counseling to detainees, and one of those numbers was not working. It was not until October 18, on his first "social call", that Mr. Fayad learned that Ms. Curtis-Diop had been retained to represent him. It wasn't until sometime later that he was allowed to speak directly with his attorney.

    Mr. Fayad continues to be held in the Special Housing Unit, where he remains in a cell 24 hours a day - even meals are served in his cell and he has no access to newspapers, television or radio. It wasn't until the end of October that he was allowed to outside - at 7 am, for an hour. Despite representations to Ms. Curtis-Diop by the U.S. Attorney's office that the FBI in New York are no longer interested in Mr. Fayad, he continues to be held in custody. Immigration proceedings have been continued, but even if an immigration judge makes a final determination in his case he will remain in custody until FBI issues an official clearance.

Having a right to counsel is meaningless unless those imprisoned in our immigration system are made aware of that right, and given the opportunity to actually exercise the right in a timely fashion. Furthermore, lawyers need to be able to contact their clients. Transporting detainees, sometimes across the country, without any opportunity for lawyers or family to determine where they are raises serious questions about whether detainees have access to counsel.

In light of the refusal to provide information about who has been detained and where they are held, we remain concerned that many detainees are unrepresented by counsel. Anecdotal evidence from detainees who are represented by counsel, and lawyers who have been in immigration court and jails where detainees are held suggests that this is the case.

Department of Justice Authorizes Detention Without Charges

In testimony before this committee last week, the Justice Department stated that every person detained has been charged with a violation of either immigration law or criminal law. Yet we know from first hand accounts that this is not the case. An AILA member in New York currently represents three men who have been detained for as long as a month without being charged with any violations. Unfortunately, these are not isolated cases.

In fact, these practices are part of a pattern reflected in a new regulation issued by the Attorney General on September 20. This new regulation purports to grant the INS authority to detain a noncitizen for an unspecified period of time "in the event of an emergency or other extraordinary circumstances" without so much as a determination as to whether to pursue proceedings. This exceptionally vague and open-ended provision allows detention without reason for virtually any period of time that the jailer chooses, with no recourse or explanation. It, in effect, allows an individual to be held for long periods for no better reason than that someone in government thinks they look suspicious. What could be more offensive to our Constitution and to the democratic way of life that we seek to defend?

It was only a few months ago that in the case of Zadvydas v. Davis (533 U.S. ____, 121 S.Ct. 2491 (2001)) that the U.S. Supreme Court found unconstitutional the practice of indefinitely detaining individuals who had been found to have violated the immigration laws and ordered removed. Yet here is a regulation that would indefinitely detain those who have not even been charged, much less been found removable. That the Zadvydas court imposes a reasonable time standard on detention of those found removable does not mean that the INS can adopt the same standard for those who have not even been charged. We owe the Constitution and our democracy better than that: we owe those under scrutiny the right not to be deprived of liberty without due process of law. Holding someone for an unspecified period without even deciding whether to charge him deprives him of liberty with no process of law.

Congress also has spoken to the issue of how long an individual can be detained, and has done so even more recently than the Zadvydas decision. In the USA PATRIOT Act, Congress limited to seven days the time that an individual suspected of terrorism can be held without being charged with a crime or brought under removal proceedings. Allowing persons not necessarily even suspected of terrorism to be held for an undefined period is a clearly an end-run around the limitations that this Congress felt were necessary to secure the rights of the accused.

Monitoring Communications Between Detainees and their Lawyers

October 30, 2001, the Department of Justice authorized the monitoring of mail and other communications between lawyers and clients who are in federal custody, including people who have been detained but not charged with any crime. Despite government assertions that this broad authority will be applied in only a limited number of cases, nothing in the regulations prohibits it from being applied broadly. According to a summary published in the Federal Register, the monitoring will be conducted without a court order in any case the Attorney General certifies "that reasonable suspicion exists to believe that an inmate may use communications with attorneys or their agents to facilitate acts of terrorism." Such certification will last for up to one year, and is not subject to judicial review. The new regulations also expand the definition of "inmate" to cover anyone "held as witnesses, detainees or otherwise" by INS agents, U.S. marshals or other federal authorities.

Other than vague and general assertions that these new measures are necessary to protect the public, the Department of Justice has failed to demonstrate the need for these rules to protect against attorneys who may help to facilitate future or ongoing criminal activity. Under existing law, federal authorities can seek appropriate remedies under the well-established "crime-fraud" exception to attorney-client privilege. In a closed-door hearing before a federal judge, and in the absence of the offending attorney, the court can take immediate and effective actions, including ordering the monitoring of communications if necessary. Other options include removing the attorney from the case and prosecutors are always free to initiate criminal proceedings against attorneys where appropriate. These procedures ensure judicial review in the narrow band of cases where an attorney is abusing the attorney-client privilege, protect legitimate attorney-client communications, and ensure that authorities have the power to investigate and prevent criminal activity without obstruction.

Detainees Will Remain in Custody Despite Being Ordered Released By An Immigration Judge

On October 29, the Department of Justice implemented without comment new regulations that allow INS to obtain an automatic stay of an immigration judge's order releasing many immigration detainees from custody, whether on bond or without bond. In order to stop the decision of the impartial immigration judge from taking effect, the INS must simply complete a form (EOIR-43), indicating that the INS is considering appealing the judge's order. The INS then has 10 days to decide whether to appeal; meanwhile the judge's release order is stayed and the person cannot be released. If the INS appeals the immigration judge's order, the stay of the judge's order continues indefinitely, until the Board of Immigration Appeals decides the merits of the appeal. It is not unusual for Board of Immigration Appeals to take months to decide a bond appeal.

The regulation fixes a system that is not broken. The Immigration Courts and the Board of Immigration Appeals administered the preexisting bond redetermination system in a cautious, careful manner. There were no incidents in the aftermath of September 11 where noncitizens were released on bond because the BIA did not respond timely to an INS request for a stay: The Board promptly granted stays on an interim basis as requested by the INS via brief, summary motions. It also granted the INS time to thoroughly brief its position, and even add evidence to the record as part of its appeal.

Two examples of noncitizens who were held on very slim suspicions related to September 11 suggest that if anything operation of the preexisting system was cautious in the extreme. Mr. Al-Maqtari's case is one. As you have just heard, there was no rush to judgement in his case. Despite the fact that the evidence against him was minimal, and the INS committed serious procedural violations in his case, arresting him with an invalid warrant, serving him an invalid charging document, and changing his bond status without notice, the Immigration Judge and the Board of Immigration Appeals gave the INS every opportunity to make its case. The Judge granted repeated continuances for the INS to come forward with evidence against Mr. Al-Maqtari. The Board of Immigration Appeals allowed the INS ample time to brief its case and let the INS submit its only documentary evidence, an FBI agent's affidavit, on appeal, after the evidentiary hearing had closed.

In a similar case, Hady Hassan Omar, an Egyptian antiques dealer, was held from September 12 until November 23, 2001. The principal evidence against him was that he had made travel reservations on travelocity.com for a flight from Florida to Texas using a computer at a Kinko's branch in Boca Raton, Florida that two terrorists had previously used. On October 19, 2002, an Immigration Judge in Oakdale, Louisiana held a bond hearing and set a $5,000 bond in Mr. Omar's case. Despite the weakness of its case, the INS sought a stay of the Immigration Judge's order. The BIA granted a temporary stay that day. More than a month later, Mr. Omar was released on bond.
In these cases, the government was given every courtesy, while innocent people spent weeks in detention even though the cases against them were very weak. This is not a system that needs to be tilted further in favor of the government. The preexisting system gave the INS a fair opportunity to present its case, and eventually, the system brought a fair result for the detained noncitizens. It should be restored.

In the end, the INS dropped its insistence on detaining Mr. Al-Maqtari because it had no evidence. Unfortunately, because of the new automatic stay regulation, even when it has no evidence, the government retains the upper hand. By invoking the automatic stay, the government can insure weeks - and usually months - of continued detention for a noncitizen regardless of how weak its case is.

On November 6, 2001, the INS reported to the Immigration Court in Memphis that the FBI had ended its investigation of Mr. Al-Maqtari and offered to stipulate to a bond of $10,000. Mr. Al-Maqtari had little choice but to agree to the INS' offer. If the immigration judge had granted a lower bond, and the INS had filed the automatic stay form, he would have remained in jail for weeks and probably months more. Fortunately, Tiffany Al-Maqtari had $10,000 to pay her husband's bond. They accepted the INS' deal and he was freed. How many other noncitizens will be granted a fair bond by an Immigration Judge, but suffer months of unwarranted detention, in the kinds of degrading conditions that Mr. Al-Maqtari described, because of the automatic stay regulation?

Conclusion
The rules that were in place prior to promulgation of these new regulations by the Justice Department provided procedures for the government to deal quickly and effectively with any exceptional problems that arose. An aberrant bond order could be stayed by filing a motion with the BIA, a wiretap order could be obtained against a rogue attorney, etc. These preexisting regulations were the rules that Congress understood and relied on when it passed the USA PATRIOT Act. The new rules erode the rights of noncitizens in the United States. As the examples I have discussed show, the problem is not theoretical, but real, with innocent people suffering unjust treatment daily. Most likely, many more people - those without attorneys or family members to press their case - are also suffering injustice.

We must face the difficult challenges ahead with this important understanding: we are a nation of immigrants, with a Constitution and due process rights that distinguish us from the rest of the world. Our diversity and our Constitution have given us our identity. They are central to who we are as a country, and help explain our success as a people and a nation. We need to protect those rights and reject the excessive measures instituted by the Department of Justice.

Thank you again for this opportunity to testify, and I will be happy to answer any questions that you may have.