Alejandro Mayorkas
Secretary
U.S. Department of Homeland Security
3801 Nebraska Ave. NW
Washington, D.C.
20016
Tae Johnson
Acting Director
U.S. Immigration and Customs Enforcement
500 12th St. SW
Washington, D.C.
20536
Esther Olavarria
Deputy Director
Domestic Policy Council
1600 Pennsylvania Ave. NW
Washington, D.C.
20500
February 11, 2021
Dear Secretary Mayorkas, Acting Director Johnson, and Ms. Olavarria:
Our organizations provide legal and medical services to and advocate for people detained by Immigration and Customs Enforcement (ICE). We write to urge you to prioritize the implementation of a file review process, initiated by ICE, to reconsider the custody determination for every person currently in ICE custody.
We are heartened by the early steps the Biden-Harris Administration has taken to reorient the U.S. immigration system toward a framework that embraces human rights and compassion. However, we are concerned that these policies have not yet been implemented in a meaningful or systemic way with regard to the approximately 14,000 people in ICE detention. Leaving behind the thousands who continue to suffer in detention will undermine efforts by your agencies to rebuild trust with communities and is at odds with President Biden’s stated commitment to racial equity and human rights.
Many of our organizations provide services to countless individuals in ICE detention who do not fall within the interim enforcement priorities outlined in the January 20th memo issued by Acting Secretary Pekoske (hereinafter January 20th Pekoske Memo). Many of our clients have been detained by ICE for years. Some are at heightened risk of serious illness or death from the COVID-19 virus, face protracted separation from their young children, and/or struggle with histories of trauma while behind bars. Many had dared hope they might have a chance for freedom with the beginning of the new administration; this hope is diminishing and turning to despair.
The January 20th Pekoske Memo called for a top-to-bottom review of the Department of Homeland Security (DHS) enforcement mechanisms. Nowhere is this review more urgent than in ICE detention centers, which have been infected by abuse and corruption for decades, with medical neglect escalating during the COVID-19 pandemic. Just this past week two people have died in custody. Yet for those detained, the day-to-day has not markedly changed since the inauguration, and no meaningful process is available to escalate urgent requests for their release. Our organizations have begun renewing release requests to ICE for those clients for whom detention poses the gravest risk; these requests sit largely unanswered and in some cases have already been denied. The situation is even more dire for unrepresented individuals who lack meaningful access to email and have received no instructions as to how to renew their request for freedom.
We urge you to immediately:
- Affirmatively implement a file review process for every person in ICE custody, operating under a presumption of release for everyone. DHS should create an independent review system for all decisions made by ICE to continue detention conducted by an agency independent of ICE such as the Office for Civil Rights and Civil Liberties or Office of the Detention Ombudsman. Independent review is critical to the integrity of this process.
- Ensure through this process that all persons who fall outside the interim enforcement priorities outlined in the January 20 Pekoske Memo are released. The January 20th Pekoske Memo specifically requires ICE to apply the interim guidance to decisions regarding “whom to detain or release.”
- Prioritize the release of individuals who face a heightened risk of serious illness or death from COVID-19 due to age or a preexisting condition as defined by the Centers for Disease Control, transgender people, HIV+ people, and all families and children. (ICE is already subject to a nationwide court order requiring that it identify persons vulnerable to COVID-19 and consider them for release, but compliance has been inconsistent at best.)
- Ensure that all persons are eligible for release pursuant to this process, including those subject to statutory mandatory custody provisions. Even where the immigration statutes otherwise appear to require confinement, it has long been acknowledged that ICE maintains discretion to release such individuals for urgent humanitarian reasons. ICE officials in fact already exercise their discretion to release people detained under the mandatory custody provision at 8 U.S.C. § 1226(c) in cases where humanitarian equities are present, including the COVID-19 pandemic.
Thousands of people remain detained because of unjust decision-making by Customs and Border Protection and ICE. Revisiting these decisions and releasing individuals to their loved ones and communities cannot wait. A file review process will require a significant commitment of resources but is feasible. The vast majority of those detained have a family member or loved one waiting to house and support them upon release. For those who do not, a network of community-based support programs and faith-based organizations stand at the ready to provide housing and services. Immigrants released from detention show up for their hearings, especially when provided legal representation; a study issued just two weeks ago by the American Immigration Council shows that over an 11-year period, 96% of all individuals with counsel appeared in court for every one of their hearings.
We appreciate your attention to this urgent matter and request the opportunity to meet with you to discuss implementation of a file review process as soon as possible.
With questions, contact:
Heidi Altman, National Immigrant Justice Center, [email protected]
Jorge Loweree, American Immigration Council, [email protected]
Sincerely,
Adelante Alabama Worker Center
Advancement Project, National Office
Advocate Visitors with Immigrants in Detention
African American Ministers In Action
African Communities Together
Aldea – The People’s Justice Center
Alianza Americas
America’s Voice
American Immigration Council
American Immigration Lawyers Association
Americans for Immigrant Justice
Amnesty International USA
Asian Americans Advancing Justice | AAJC
Bay Area Asylum Support Coalition (BAASC)
Beyond Legal Aid
Black Immigrant Collective (BIC)
Bridges Faith Initiative
California Collaborative for Immigrant Justice
California Immigrant Policy Center
Capital Area Immigrants’ Rights Coalition
Catholic Legal Immigration Network, Inc.
Catholic Legal Services, Archdiocese of Miami
Catholic Migration Services
Center for American Progress
Center for Constitutional Rights
Center for Gender & Refugee Studies
Center for Law and Social Policy (CLASP)
Center for Popular Democracy
Center for Victims of Torture
Central American Resource Center- CARECEN- of California
Chicago Religious Leadership Network on Latin America
Church World Service
Coalition for Humane Immigrant Rights (CHIRLA)
Colorado Medical Coalition for Human Rights
Community Justice Exchange
Conversations with Friends (MN)
DC Immigration Hub
Desert Support for Asylum Seekers
Detention Watch Network
Disability Rights Advocates
Disciples Refugee & Immigration Ministries
Doctors for Camp Closure
Esperanza Community Housing Corporation
Families for Freedom
Florence Immigrant & Refugee Rights Project
Franciscan Action Network
Freedom for Immigrants
Government Accountability Project
Grassroots Leadership
Gulf Coast Immigration Collaborative
Haitian Bridge Alliance
Hispanic Federation
Human Rights First
Human Rights Watch
Illinois Coalition for Immigrant and Refugee Rights
Immigrant & Non-Citizen Rights Clinic, CUNY School of Law
Immigrant Action Alliance
Immigrant and Non-Citizen Rights Clinic, CUNY School of Law
Immigrant ARC
Immigrant Defenders Law Center
Immigrant Legal Advocacy Project
Immigrant Legal Defense
Immigrant Legal Resource Center (ILRC)
Immigration Equality
Inland Coalition for Immigrant Justice
Innovation Law Lab
Interfaith Movement for Human Integrity
International Rescue Committee
Jefferson County Immigration Rights Advocates
Kitsap Immigrant Assistance Center
Legal Aid Justice Center
Lincoln Park Presbyterian Church Chicago
Long Beach Immigrant Rights Coalition
Louisiana Advocates for immigrants in Detention
Make the Road New York
Make the Road NJ
Mariposa Legal, Program of COMMON Foundation
Massachusetts Immigrant and Refugee Advocacy Coalition
Mid-South Immigration Advocates
Migrant Center for Human Rights
Minnesota Interfaith Coalition on Immigration
National Immigrant Justice Center
National Immigration Law Center
National Immigration Project (NIPNLG)
National Network for Immigrant & Refugee Rights
Neighbors Link
New Mexico Immigrant Law Center
New Sanctuary Coalition
NorCal Resist
Northern Illinois Justice for Our Neighbors
Northwest Immigrant Rights Project
NYU Immigrant Rights Clinic
Orange County Justice Fund
Orange County Rapid Response Network
Oxfam America
Pangea Legal Services
Physicians for Human Rights
Provincial Council Clerics of St. Viator
Proyecto Dilley
Public Counsel
Reformed Church of Highland Park Affordable Housing Corp
Refugee and Immigrant Center for Education and Legal Services (RAICES)
Rocky Mountain Immigrant Advocacy Network
Santa Fe Dreamers Project
Services, Immigrant Rights & Education Network (SIREN)
Sisters of Charity, BVM
Sisters of St. Joseph of Carondelet, LA Province
South Asian Americans Leading Together (SAALT)
Southeast Asia Resource Action Center
The Bronx Defenders
The Advocates for Human Rights
Transformations CDC
UC Irvine School of Law Immigrant Rights Clinic
UndocuBlack Network
UnidosUS
United We Dream
Univ. of Massachusetts School of Law Immigration Law Clinic
Univ. of Southern California Gould School of Law Immigration Clinic
Univ. of Colorado, Division of Infectious Diseases
UnLocal
Voces Unidas: Louisiana Immigrant’s Rights Coalition
Women’s Refugee Commission
Young Center for Immigrant Children’s Rights