On July 14, 2010, Brian O'Leary, Chief Immigration Judge for the Executive Office of Immigration Review (EOIR) issued an order authorizing arbitrary delays for bond hearings and case completions for people locked up pending determination of their citizenship or immigration status.
According to documents released to me under the Freedom of Information Act (FOIA), the Office of the Chief Immigration Judge established a 60 day case completion goal for 85% of detained respondents and increased from 3 to 21 days the time that people may be held pending bond hearings. (The "redeterminations" refer to the immigration judges' initial bond hearings to evaluate the conditions of release set by the Department of Homeland Security, not reassessments of bonds set by the immigration courts.)
O'Leary signed onto a policy of the United States government holding people on the authority of DHS agents without any review for at least 21 days. The data show that the agency has met this seemingly unconstitutional goal for 90% of those detained, and thus also shows that thousands of people are having to wait for more than 21 days for a bond hearing. For instance, their data shows that for the first quarter of 2012, 1,324 people did not have bond hearings within 21 days of being taken into custody by DHS.
(The full release of this data includes analysis by immigration court and will be available here by zip file this weekend.)
Taking these data at face value, the government is funding the capacity to lock people up at a level greater than the capacity to provide the admittedly limited review for these custody decisions.
O'Leary's response to this is to sell out the rights of those on the EOIR docket. Rather than release them because it is unconstitutional to hold people indefinitely without an independent review of their custody status, O'Leary is playing the role of the good bureaucrat and expanding the time frame for incarcerations so that it accommodates the rate of DHS lockups.
The case completion data also are troubling. On the basis of their own data, 18% of people locked up have been waiting for their cases to have final decisions in a time frame we know is beyond 60 days.
Finally, it is not clear that the tracking information is accurately reflecting what is happening on the ground. Each time a respondent moves from one immigration judge to another, the clock starts over for the EOIR tracking data. For instance, when the EOIR violated Esteban Tiznado's due process rights by hand picking a former Office of Immigration Litigation employee to hear Tiznado's case in its Falls Church headquarters, instead of leaving it with the case load of Sylvia Arellano in Florence, Arizona, the clock would start over and the initial decision against Tiznado issued almost seven months after he was most recently detained would show up as being issued in the time frame from when his case was redocketed.
We know from the recent response to the budget sequestration that when the funds are short, the DHS will release people it would otherwise detain. If the DHS will do this because it lacks funds for housing people, then the DOJ should do this as well, when it lacks funds for protecting their due process rights. If the EOIR cannot because of budget shortfalls staff the immigration courts at a level sufficient to protect respondents' constitutional rights, then O'Leary needs to instruct his IJs to order their release, not reset goals to accommodate indefinite detention.