In 2015, the United States Department of Justice assisted in deporting nearly 3,000 undocumented immigrants incarcerated in federal, state, and municipal corrections facilities across the country. In 2016, the number of deported prisoners grew to nearly 4,000. The reason behind the dramatic increase? No one outside of the federal government can really be sure—because the government won't explain itself.
For the last four months, the American Immigration Council, a non-profit organization dedicated to defending immigrants, has been trying to learn, via a Freedom of Information Act request, the criteria that the federal government uses to deport incarcerated immigrants, but they have been stonewalled by the Department of Justice. Last week, the council took its efforts a step further, filing a federal lawsuit against the department to obtain these details.
The lawsuit targets the Institutional Hearing Program. Managed by the Department of Justice's Executive Office for Immigration Review, the IHP allows Immigration and Customs Enforcement to refer immigrants held in federal, state, and local correctional facilities to immigration judges for deportation hearings.
"Unlike most removal proceedings, where the non-citizen is either out of custody or in immigration detention, the IHP targets people serving criminal sentences," explains Emma Winger, a staff attorney with the American Immigration Council.
Because the immigrants who go through the IHP are incarcerated, many of them are literally denied their day in court. Instead, their immigration hearings are often conducted from prison via video teleconference and without the defendant being able to access legal counsel. According to the American Immigration Council, 54 percent of IHP cases are conducted remotely and only 4 percent of defendants have attorneys. The outcomes, as the council points out, are predictable: With the technical and social limitations of teleconferencing compounded by the lack of legal representation, nearly 92 percent of IHP cases end in deportation.
Despite the structural failings of the IHP, the federal government has been expanding its use. In 2017, then Secretary of Homeland Security John Kelly wrote an agency-wide memo directing all personnel to utilize the IHP "to the maximum extent possible." According to statistics from the Department of Justice, the number of new IHP cases had already increased nearly 20 percent from 2015 to 2016. And while one department report claims the number of new IHP cases declined in 2017, another describes them as increasing. No reports are available for 2018.
"The program operates in certain federal, state, and local correctional facilities—though we don't know which ones," says Winger of the IHP.
Outside of the basics, very little is known about the IHP. While the Department of Justice shares some figures regarding the program's caseloads and outcomes, the agency has not released an updated list of locations where it operates since early 2018. Also of concern to immigrants' advocates are the criteria by which individuals are referred to the IHP, whether their hearings are conducted in person or via video teleconference, how often they receive legal counsel, if they are given proper mental competency evaluations, and other information regarding the program's legality, as well as its fairness.
"Taken together, we believe this information will help us better understand the scope of the IHP, how it is being implemented, and who it targets—and therefore better understand how the IHP does or does not protect the due process rights of the people it targets," Winger says.
In April, the American Immigration Council, along with the American Immigration Lawyers Association and the Immigrant Defense Project, filed a request under the Freedom of Information Act to obtain these details from the Department of Justice. According to the American Immigration Council, this request went unfulfilled for four months. (The Department of Justice declined an interview request from Pacific Standard, with assistant press secretary Kathryn Mattingly citing "pending litigation" as the reason for doing so.)
In order to compel the release of the requested information, the American Immigration Council and its partners filed a lawsuit against both the Executive Office for Immigration Review and the Department of Justice in federal court last week. Submitted by Winger and fellow American Immigration Council attorney Claudia Valenzuela, the suit not only seeks the details of IHP's operations, but censure of both defendants for their failure to comply with the original Freedom of Information Act request. The Executive Office for Immigration Review and the Department of Justice have until mid-September to respond to the court-issued summonses.
Earlier this week, the Department of Homeland Security's acting secretary, Kevin McAleenan, also announced that the federal agency will be expediting the deportation of undocumented immigrants who are detained within 100 miles of an international border and who cannot provide proof of their residence in the United States for longer than two years. "This designation makes it clear that if you have no legal right to be here, we will remove you," said McAleenan in a statement. According to the new policy, affected detainees will be "removed" without a hearing before an immigration judge.
While the thousands of undocumented immigrants who go through the IHP are overshadowed by the hundreds of thousands who could be deported under the Department of Homeland Security's new policy of "expedited removal," the similarities between the two removal efforts are revealed in the common lack of due process and, more generally, justice. Accordingly, the American Immigration Council's description of the IHP in its lawsuit could be just as appropriately applied to expedited removal: "this focus on expediency ... undermines the constitutional, statutory, and regulatory rights of the people it targets for deportation."