PLACING LIMITATIONS ON THE GOVERNMENT’S INDEFINITE DETENTION OF IMMIGRATION DETAINEES AFTER RODRIGUEZ
By Harvey Gee
II. Rodriguez v. Robbins
III. Post-Removal Cases
B. Removal Period
C. Due Process, Removal within Six Months, and “Good Faith”
IV. Race, Gender, And Prison Conditions
Kevin’s insistence that he is a U.S citizen, is a claim that he makes with every fiber of his emasculated being. Kevin has been physically and mentally wasting away since his arrival at the Detention Center. Kevin appears frail, unkempt, and unhealthy; he is very thin, weighing no more than 160 pounds (he has lost 20 pounds since entering into custody). His voice is weak. He also has sunken cheeks and is missing several of his upper left teeth. Kevin barely exists in a cell measuring 7 steps by 5 steps. The cell, which has concrete walls, contains only a metal bed; a thin mattress covered by two sheets and a blanket; a toilet; and a sink. It is sealed off from the rest of the facility by a thick metal door with a small plexiglass window. There is no curtain for use when he relieves himself. The door has a slit for passing food trays and documents. Kevin has no contact with the prison population. He remains in his cell day and night, except to shower and for legal visits. He is allowed to shower just 3 times per week.
Kevin’s situation is not uncommon for a detainee held indefinitely by The U.S. Immigration and Customs Enforcement (“ICE”). This essay uses Kevin’s hypothetical case to explore the myriad of legal hurdles that a detainee must clear to prevent deportation. Part II analyzes the recent Ninth Circuit ruling in Rodriguez v. Robbins. Rodriguez was a landmark ruling limiting the government’s practice of locking up immigration detainees for months or sometimes years, without ever holding a bond hearing to determine whether they are legitimately being held in the first place. Part III describes the post-removal process. Part IV discusses the racial and gender complexities implicated by the government’s practice of locking up immigration detainees, as well as the often harsh prison conditions that detainees are subjected to during their housing.
II. Rodriguez v. Robbins
Rodriguez stands to benefit thousands of immigration detainees. The appellees in the class-action lawsuit argued that prolonged mandatory detention imposed by the government, without any possibility of review, was unconstitutional. On the other side, the government argued that it was statutorily authorized to require mandatory detention with no limit on the duration of imprisonment. 
The facts of the case were straightforward. The district judge granted a preliminary injunction requiring bond hearings before an immigration judge, and release of detainees who posed no risks to society and were not likely to flee.  These immigrants were subject to bond requirements and government supervision, including possible electronic monitoring, until an immigration judge determines their removal status.  ICE appealed the district court order, arguing that it would impose administrative burdens. The Ninth Circuit disagreed and found that hearings were necessary to ensure that immigrants, some of whom may eventually win the right to remain the United States, were not needlessly detained. 
Judge Wardlaw, writing for the panel, applied a balancing test. Citing Zadvydas v. Davis Judge Wardlaw asserted that freedom from physical restraint and imprisonment lies at the heart of the Due Process Clause.  Furthermore, the Judge cited to Denmore v. Kim  to support the proposition that “the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings.”  Judge Wardlaw determined that detention must be time-limited.  Referring to Zadvydas again, she suggested that a time-limited approach fits more naturally into Ninth Circuit jurisprudence, which has suggested that after Denmore brief periods of mandatory immigration detention do not raise constitutional concerns, but that prolonged detention lasting more than six months did. She stated that “[t]his reading also has the advantage of uniformity, which the Supreme Court has suggested is an important value in matters of statutory construction.”
The Ninth Circuit applied the traditional factors in finding that a preliminary injunction was necessary: “(1) Appellees’ likelihood of success on the merits; (2) whether they have established a likelihood of irreparable harm; (3) the balance of the equities; and (4) where the public interest lies.”  It determined that mandatory detention of criminal aliens with no limit on the duration of imprisonment is unconstitutional. A likelihood of irreparable harm was established because the preliminary injunction is necessary to ensure that individuals who are not flight risks, pose no danger, or otherwise cannot be removed by the government, will not be needlessly detained.  The Court determined that “[the government] cannot suffer harm from an injunction that merely ends an unlawful practice or reads a statute as required to avoid constitutional concerns.” Finally, the court rejected the government’s argument that conducting hundreds of hearings under the district court’s order would be prohibitively burdensome, and reasoned that any potential burden is consistent with compliance with the statute. Accordingly, the public interest benefits from a preliminary injunction that avoids serious constitutional questions.  The court further concluded:
Contrary to the government’s rhetoric, this injunction will not flood our streets with fearsome criminals seeking to escape the force of American immigration law. The district court’s narrowly tailored order provides individuals, whose right to be present in the United States remains to be decided, a hearing where a neutral decision-maker can determine whether they might deserve conditional release from the prison-like setting where they might otherwise languish for months or years on end.
III. Post-Removal Cases
Rodriguez will have broad ramifications to the immigration detention system, which has exploded in the past fifteen years.  The Obama Administration’s aggressive deportation policy almost assures that more detainees will be litigating for their freedom. The decision also creates questions. Rodriguez involved a petitioner class seeking an initial bond hearing, but what about prolonged detention after a removal order has been issued? Here, I suggest that a broader application of Rodriguez, and its principles, is possible to assist in the defense of deportations. Since the difficulties in defending against deportation are best understood through the experiences of an immigrant detainee, I provide Kevin’s story which illustrates the dire reality facing a detainee in resisting the government’s efforts to deport him against his will.
Kevin Sullivan is thirty-seven years old. He was born in the U.S.Virgin Islands. His father was born in the U.S. Virgin Islands; his mother is from Charleston, South Carolina. When he was four years old, he and his father moved from the U.S. Virgin Islands to Charleston. His mother passed away shortly after his birth. At some point, Kevin and his father moved from Charleston to Florence, South Carolina. Then, at age seven, he and his father, and his father’s girlfriend moved to Liberty City, Florida. Kevin was eleven years old when his father was killed by gunmen during a robbery at their apartment in Opa-Locka, Florida. When Kevin was twelve or thirteen years old, the family moved to New York City—the Bronx.
Kevin was convicted of distributing crack cocaine and sentenced in a criminal case in the U.S. District Court. Upon conviction, Kevin was immediately placed on an immigration detainer and held in immigration custody at a detention center. But Kevin was never physically removed. The immigration judge ordered Kevin’s removal to Jamaica twenty-nine months ago, yet he remains in custody.
At the heart of Kevin’s case is his burning desire to be released immediately, but he is being held against his will indefinitely because the U.S. Department of Homeland Security (“DHS”) does not believe that he is Kevin — a U.S. citizen who was born in the Virgin Islands. Instead, DHS believes Kevin is a Jamaican citizen named “Richard,” and wants to deport Kevin to Jamaican. DHS argues that Kevin is the sole cause of the delay in effecting his removal to Jamaica because he is improperly contesting his removal order by refusing to cooperate with ICE in obtaining travel documents, and has yet to provide any evidence to support his claim of U.S. citizenship. The delay, however, is based on Kevin’s unwillingness to lie. He steadfastly refuses to sign any immigration form with a name other than his own. Kevin will not perjure himself by claiming that his identity is Richard.
The reality is that Kevin will never be removed. The Jamaican government will not accept Kevin because it believes that he is not a Jamaican citizen. Kevin was interviewed at length, both in-person and telephonically by the Jamaican Consulate. The United States government claimed it continued to work with the Jamaican Consulate in trying to effectuate Kevin’s removal. The Jamaican Consulate, however, having carefully considered all of the evidence provided by Kevin and DHS, found that the evidence has not established that he is Richard, or a Jamaican citizen.
The Jamaican Consulate reiterated its position when it concluded in a letter—in response to DHS’s request for a travel document to be issued—that a travel document cannot be granted because Kevin does not qualify for one under Jamaica’s nationality, citizenship, regulations, and immigration laws. Thus, it is impossible for Kevin to be sent to Jamaica.
Kevin’s case depicts what can happen to a typical individual facing deportation and the immense pressure applied by the government in confining these individuals indefinitely while they await deportation. The stakes in deportation proceedings are great because individuals facing deportation can face a life sentence of banishment from their homes, families, jobs, and community in the United States. Furthermore, they can potentially be deported to countries that they have never been to, have no family in, and cannot speak the language of.  Kevin is situated in a Kafkaesque situation wherein he stands to remain in custody in perpetuity because the government claims he is not a U.S. Citizen and he cannot show, to the government’s satisfaction at least, that he has citizenship.
In deportation cases, the government often makes objections based on jurisdictional grounds—the detainee is challenging the immigration judge’s decision and the federal court lacks jurisdiction. But in Kevin’s case, he is only challenging the constitutionality of his extended deprivation of liberty rather than the merits of his removal order. As such, the district court has jurisdiction pursuant to 28 U.S.C. § 2241. Kevin is not attempting to relitigate the findings of the immigration judge because he is not arguing the correctness or incorrectness of the immigration judge’s decision. Where there is no challenge of the removal order, the REAL ID Act, 8 U.S.C. § 1252 (“REAL ID Act”) does not eliminate habeas jurisdiction over challenges to detention that are independent of challenges to removal.  Notably, the Eleventh Circuit drew a distinction between challenges to a removal order and a constitutional challenge based on prolonged detention in Madu v. U.S. Attorney General, by holding that the petitioner’s assertion that he was not subject to an order of removal was distinct from a challenge to the removal order.
Madu is instructive here because of the factual similarities to Kevin’s case. The petitioner in Madu admitted deportability at his May 5, 1987 deportation hearing, and the immigration judge issued an order granting his request for voluntary departure, “in lieu of an order of deportation.”  When petitioner applied for a visa approximately sixteen years later, he was arrested on the basis of the putatively outstanding deportation order.  On May 17, 2004, petitioner filed a habeas petition pursuant to 28 U.S.C. § 2241, claiming that the Immigration and Naturalization Service (“INS”) was holding him in violation of his constitutional rights of substantive and procedural due process, and sought an order releasing him from detention, and enjoining the INS from deporting him. 
In its analysis, Eleventh Circuit referred to the REAL ID Act‘s language and its purpose, and determined its applicability to the case facts. It opined that petitioner was bringing a constitutional challenge to his detention and impeding removal, and not seeking review of a removal order. In doing so, Eleventh Circuit rejected the government’s arguments that: (1) the REAL ID Act deprives the district court of jurisdiction over the petitioner’s habeas petition, and (2) that the REAL ID Act barred any judicial review of the INS’s actions in the case. It concluded that the petitioner was not challenging “‘a final administrative order of removal’ or seek[ing] review of a removal order.”  The Court held that substantive review of the underlying legal bases by the district court is still allowed. 
The Ninth Circuit similarly held that the REAL ID Act does not bar constitutional challenges. In Singh v. Holder, the Ninth Circuit stated that “Congress has clarified, however, that the REAL ID Act was not intended to ‘preclude habeas review over challenges to detention that are independent of challenges to removal orders.’”  Accordingly, the general rule is that “[e]ven post [REAL ID Act], aliens may continue to bring collateral legal challenges to the Attorney General’s detention authority. . .through a petition for habeas corpus.”  As the Singh court concluded:
[The determination of whether ]The REAL ID Act preempts habeas jurisdiction requires a case-by-case inquiry turning on a practical analysis, and that there are many circumstances in which an alien subject to an order of a removal can properly challenge his immigration detention in a habeas petition without unduly implicating the order of removal.
B. Removal Period
Several statutes and regulations govern detention during the “removal period”—the time during which a person who has been ordered removed awaits removal. Pursuant to 8 U.S.C. § 1231(a)(1)(A), “when an alien is ordered removed, the Attorney General shall remove [him] from the United States within a period of 90 days,” and “[d]uring the removal period, the Attorney General shall detain the alien.” The removal period begins (as relevant here) on “[t]he date the order of removal becomes administratively final.” In this case, the immigration judge ordered mandatory detention for Kevin, and the removal period began when he ordered him removed to Jamaica. The removal period may not be extended, and the person must be released, unless he “fails or refuses to make timely application in good faith for travel or other documents necessary to [his] departure” or he “conspires or acts to prevent [his] removal.”
Immigration and Naturalization Act 241 governs the detention, release, and removal of aliens ordered removed. There are two different ways in which a person can be released following the initial removal period: (i) a traditional bond under 8 C.F.R § 241.4, and (ii) release under 8 C.F.R § 241.13, when it is established that removal from the United States is not “significantly likely to occur in the reasonably foreseeable future.”
Under 8 C.F.R § 241.4, release is possible if DHS concludes that release “will not pose a danger to the community or to the safety of other persons or to property or a significant risk of flight pending such alien’s removal from the United States.” Release pursuant to 8 C.F.R § 241 typically follows a “custody review,” which must be conducted at the end of the initial removal period pursuant to DSH regulations. DHS has the authority to release the person “without regard to the likelihood of the alien’s removal in the reasonably foreseeable future.”
DHS has reviewed Kevin for release under 8 C.F.R. § 241.4 twice, each time denying it. The ICE Field Office Director issued a denial notice, pursuant to 8 C.F.R § 241(g), indicating that Kevin’s custody status has been reviewed and it has been determined that he will not be released from ICE custody. Then the Director again denied Kevin’s request for release. The letters alleged that the removal period had been extended, indefinitely, for failure to comply with DHS’s efforts at removal.
Under 8 C.F.R § 241.13 (a), a person under a pending removal order, like Kevin, must be released if there is “good reason to believe there is no significant likelihood of removal to the country to which he  was ordered removed . . . in the reasonably foreseeable future.” Under 8 C.F.R § 241.13(a), DHS must make a determination, “during a six-month period, dating from the beginning of the removal period . . . whether there is a significant likelihood of removal in the reasonably foreseeable future.” In evaluating release, 8 C.F.R. § 241 states:
The [DHS] shall consider all facts of the case including, but not limited to, the history of the alien’s efforts to comply with the order of removal, the history of the Service’s efforts to remove aliens to the country in question or to third countries, including the ongoing nature of the Service’s efforts to remove this alien and the alien’s assistance with those efforts, [and] the reasonably foreseeable results of those efforts.
If DHS determines that removal is not significantly likely to occur in the reasonably foreseeable future, then the person must be released “[u]nless there are special circumstances justifying continued detention.” Kevin has never been evaluated for release under 8 C.F.R § 241.13, which, though unstated, is presumably because of his alleged “failure to comply or cooperate.”
C. Due Process, Removal within Six Months, and “Good Faith”
The issue is whether Kevin, an American citizen, should be released from custody under Zadvydas v. Davis, when his removal is being delayed because he refused to sign documentation admitting that he is a citizen of a foreign country which denies his citizenship? 
Kevin has a liberty interest in not being arbitrarily or indefinitely detained. Long-standing Supreme Court precedent has extended Fifth Amendment due process protections to aliens within the United States, without distinguishing between those who are here legally or illegally, or between residents and visitors.
It is certain that Kevin is not going to Jamaica. The Jamaican Consulate is not convinced that the man incarcerated at Detention Center is “Richard,” as the government claims, or a Jamaican citizen. As discussed earlier, in reaching its judgment the Jamaican government considered all that DHS had to offer, and conducted interviews with Kevin. Because it is undisputed that Jamaica will not issue a travel document, it is also clear that Kevin’s removal to Jamaica, which requires a travel document, is not significantly likely to occur in the reasonably foreseeable future.
Under immigration regulations and the U.S. Supreme Court decision in Zadvydas, if Kevin has not been removed within 6 months, then he is presumptively entitled to release on supervision. In Zadvydas, the U.S. Supreme Court held that habeas corpus proceedings under 28 U.S.C. § 2241 “remain as a forum for statutory and constitutional challenges to post-removal-period detention,” and indefinite detention of a removable alien after a removal proceeding violates a due process right.  The Court further held that 8 U.S.C. § 1231(a)(6) does not permit the indefinite detention of two long-time resident aliens who committed crimes and as a consequence were ordered removed, where no country was willing to accept either of the individuals once they were ordered removed. The Court concluded that the presumptive period during which an alien’s detention is reasonably necessary to effectuate removal is six months, and that he must be conditionally released after that time, if he can demonstrate that there is “no significant likelihood of removal in the reasonably foreseeable future.” 
Years after Zadvydas, Justice Stephen Breyer, who wrote the opinion, remarked that the ruling was motivated in part by the Court’s need to interpret the statutes at issue in a manner that avoided a finding that they were unconstitutional. According to Justice Breyer, the Court’s pragmatic application of “interpretative principle” assisted the Congress and the Court to “maintaining a constitutional system of government, and forms part of an overall approach that promises a workable Constitution and helps to secure continued public acceptance of the Court’s decision.”
In Clark v. Martinez, the Court extended its interpretation of 8 U.S.C. §1231(a)(6) to inadmissible aliens. The Court concluded that there was no reason why the period of time reasonably necessary to effect removal would be longer for an inadmissible alien, therefore the six-month presumptive detention period prescribed in Zadvydas should be applicable to inadmissible aliens.  Accordingly, under Clark and Zadvydas, when an alien shows that he has been held more than six months beyond the removal period and his removal is not reasonably foreseeable, an 8 U.S.C. § § 2241 petition should be granted. 
In this case, the ostensible basis for continuing to detain Kevin is his alleged failure to comply or cooperate in “good faith” with DHS’s removal efforts. DHS argues that Kevin is not a U.S. Citizen because he lacks any documentation to prove it, and since his assertion that he is a U.S. Citizen is not being made in “good faith.” The U.S. Supreme Court has held that “good faith” means honesty, “whether or not the claimed belief or misunderstanding is objectively reasonable.”
To be sure, Kevin has no reason to dispute that “Richard “ is Jamaican. He has, however, steadfastly maintained his own identity and that he was born in the U.S. Virgin Islands. All persons born in the U.S. Virgin Islands on or after February 25, 1927, are U.S. Citizens. Therefore, the sole question is whether DHS can legally hold Kevin indefinitely because, according to DHS, Kevin has not been honest about his claim that he is a U.S. citizen?
There are no grounds to hold Kevin. Although Kevin has not been able to produce a “certified” U.S. Virgin Islands birth certificate does not mean that he is acting in bad faith by continuing to assert his U.S. Citizenship. While the government is correct about two things: (i) Kevin has not been able to produce a certified copy of his U.S. Virgin Islands birth certificate; and (ii) the U.S. Virgin Islands has not located a record for “Kevin” born exactly on July 2, 1971, these two facts, however, do not carry the weight that the government places on them. Indeed, as both the applicable statutes and federal case law have recognized, a birth certificate—whether certified or not—is simply not necessary to establish U.S. Citizenship.
In Murphy v. INS, the Ninth Circuit reversed the Board of Immigration Appeal’s (hereinafter, “BIA”) finding a respondent in that case was deportable. The government claimed that he was from Jamaica; the respondent maintained that he was born in the U.S. Virgin Islands. The respondent “testified that he was born by home delivery in the Virgin Islands and that he left when he was five to come to New York.” “[H]e did not remember the names of the people who cared for him between the ages of six and twelve.” “At one point he indicated that their name was Williams, but he was unsure; later, he declined to insist on any name because he could not remember.” Also, “When he was nine or ten, these people informed him that his father and mother had died, his mother having succumbed to illness when [the respondent] was six, resulting from a home delivery.”
Further, the respondent “had never claimed to be from Jamaica and did not associate with Jamaicans.” “After further questioning [at the immigration hearing], the [Immigration Judge] told [the respondent] that he needed to obtain proof of his citizenship by birth certificate or parents’ or friends’ testimony.” The respondent was unable to do so. The government’s only admissible evidence consisted of “two certifications from the Virgin Islands, stating that there was no birth certificate for [the respondent] on either December 15, 1956 or February 12, 1959.” On this basis, the Immigration Judge found that the respondent was deportable, and the BIA affirmed.
In reversing, the Ninth Circuit found that BIA should not have given “the lack of a Virgin Islands birth certificate significant weight,” particularly when the respondent had “provided a reasonable explanation for that absence.” In addition, BIA improperly discredited the respondent’s testimony merely because it was uncorroborated. The Ninth Circuit opined that it was unreasonable for BIA to insist on documentary evidence regarding frequency of home births and lack of birth registrations, “given an illiterate defendant who was able to engage pro bono counsel only a few weeks before the hearing date.” The Court also found that BIA’s insistence on testimony from friends and family was also unreasonable because the respondent lived on the streets since he was 12 years-old. The Court was not persuaded by the government’s assertion that it was odd for the respondent to know that he was born at home. Instead, the Court found that, “It would not be unusual for a nine-year-old boy in [the respondent’s] childhood situation to ask about his family and his birth; in fact, it would be highly unusual for a child not to ask those questions and not to remember at least the gist of the responses.”
DHS, in this case, has the imposed the same unreasonable burdens on Kevin as were imposed on the Petitioner in Murphy. Therefore, like the Ninth Circuit, the Eleventh Circuit should reject any notion that a mere inability to produce a “certified” birth certificate or other documentary corroboration automatically means the Kevin is acting in bad faith.
Furthermore, the applicable U.S. Citizenship statute itself provides that in some cases, birth certificates are not only not required, but in some cases are presumed not to exist in the first place:
The following shall be nationals and citizens of the United States at birth:
* * *
(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States.
If someone has a birth certificate, of course, his parentage will not be “unknown.” Therefore, 8 U.S.C. § 1401(f), and the Ninth Circuit’s reasoning in Murphy decision, directly contemplates recognizing U.S. Citizenship for someone like Kevin who is unable to produce a birth certificate—whether “certified” or otherwise.
Based on these authorities, and in the context of Kevin’s extensive testimony about his claim to U.S. Citizenship, his inability to produce a “certified” U.S. Virgin Islands birth certificate is not dispositive. Therefore, the government’s argument to the contrary should be rejected.
DHS has acknowledged that Kevin had made numerous United States Citizen claims. It criticized him, however, for not providing valid documentation to support those claims. But the government’s criticism should be rejected, however, because Kevin did provide DHS with valid documentation to support his claim, which the government failed to investigate.
Kevin presented several identification cards—each of which bore his true name. First, he presented a New York driver’s license. A copy of the driver’s license was produced to counsel in discovery with his Alien File. In describing the identification requirements for obtaining a New York driver’s license, the court in People v. Quiroga-Puma observed that it is impossible to get a driver’s license without also having legal immigration status:
The DMV lists forty-two (42) documents, each with a corresponding number of points; an applicant must provide six (6) points worth of identification in order to be eligible for a driver’s license. The majority of these documents are primary proof of citizenship; many of them are secondary documents, which require proof of citizenship to obtain them. Without the primary proofs of citizenship presented in either a major document (such as a passport) or secondary document (such as a firearms license), it is mathematically impossible to present the proper documentation in order to obtain an operator’s license for a motor vehicle in the State of New York.
Remarkably, DHS failed to even mention this evidence, particularly since the New York Department of Motor Vehicles has since confirmed that the driver’s license is authentic, and was valid when given to Agent Smith (it expired on September 30, 2011). Second, Kevin gave the arresting officer a New York State Benefit Identification Card. This document was also in Kevin’s Alien File. But DHS also ignored the benefit card. The validity of both documents is readily obtainable, and either document would have conclusively established Kevin’s identity. Both documents display his picture and signature. DHS’s failure to address this important evidence means that its decision was not supported by substantial evidence.  On this basis alone, DHS’s conclusions should be rejected.
In this case, Kevin has done everything that the U.S. government asked him to do. First, Kevin responded to discovery. Second, he was deposed for a half a day. Third, he provided extensive proof of his identity. Fourth, he was interviewed by the Jamaican consulate several times. Fifth, he was interrogated by deportation officers, and he answered all of their questions. There is nothing the U.S. government has asked him to do that he has not done. Put simply, Kevin has done everything that he can do to comply with the order of removal—yet he remains in custody. Under these circumstances, Kevin, by acting in good faith, has met his burden under Zadvydas, and “there is no significant likelihood of removal in the reasonably foreseeable future.”  Therefore, having cooperated and complied with DHS’s removal efforts, Kevin should be promptly released from custody. Finally, the law entitles Kevin to release. Yet Kevin remains in custody 29 months after the final removal order was issued, and the prolonged detention is having a deleterious effect on his health. 
Incredibly, facing a mountain of evidence showing that Jamaica will not issue a travel document to Kevin, and that Kevin’s removal to Jamaica, which requires a travel document, is not significantly likely to occur in the reasonably foreseeable future, the government persists in its claim that “Petitioner’s removal is likely in the foreseeable future.” This is simply not true.
This case is similar to Mitchell v. Gonzales, where the district court granted petitioner’s petition for writ of habeas corpus, and ordered the government to immediately release petitioner upon conditions of supervision.  The petitioner in Mitchell did not challenge the final order of removal, but sought release from an indefinite period of custody. The petitioner contended that that his native country, Jamaica, refused to issue travel documents to him because Jamaica has no record of him.  Petitioner alleged that he was being held beyond the presumptively reasonable period of detention as established by Zadvydas, and asserted that he was entitled to release. Petitioner was in custody for over three years (16 months passed after his removal order became final). 
ICE believed that the petitioner was not telling the truth because he was providing identity information to the Jamaican Consulate that differed from his immigration file. ICE also learned that the Consulate will not issue a document until it obtained a birth certificate, and requested assistance from the American Embassy in Jamaican to obtain a “correct birth certificate.”  ICE argued that the petitioner failed to cooperate by not assisting its efforts to acquire travel documents. 
The court in Mitchell concluded that, because petitioner already provided school records, a driver’s license, and his social security card, to show his identity, as well as a sworn statement that Jamaican official “told him that Jamaica has no record of him and therefore cannot issue him travel documents[.] that the petitioner made a prima facie showing of his identity.” The court went on to say “[i]t is unfair to claim that Petitioner is not assisting his removal without showing precisely what more is needed and demonstrating either that Petitioner has refused to provide the information or how he has been misleading.”  In the court’s view:
Considering that Petitioner has already been detained more than twice as long as the presumptively reasonable removal period, it does not appear that this problem can be solved in the reasonably foreseeable future. Indeed, Respondents have been requesting travel documents since August 3, 2005 . . . Respondents have not supported their contention that Petitioner has hindered his removal. Moreover, Respondents have not come forward with any evidence that there is a significant likelihood of Petitioner’s removal in the reasonably foreseeable future. Petitioner does not appear to be able to provide any further identification and Jamaican officials are also unable to verify Petitioner’s birth record. Thus, Petition has shown that his removal is not reasonably foreseeable and he is entitled to release from detention. 
Accordingly, the court determined that petitioner met his burden under Zadvydas, and further concluded that, while the government argued that the removal had been delayed by petitioner’s failure to cooperate, it never truly responded on the merits.
If the court applies the same factors applied in Rodriguez, it would find that the mandatory detention of Kevin is unconstitutional. A likelihood of irreparable harm is established and the preliminary injunction is necessary because Kevin is not a flight risk opposed danger, and is being needlessly detained.  The government avoids the merits of Kevin’s claim, by obfuscating the real issues by attempting to dismiss Kevin’s earnest attempts to establish his identity. Kevin provided the government with a valid New York Department of Motor Vehicles driver’s license and copies of pictures of him taken at the State Department of New York Department of Motor Vehicles in 1994 and in 1998. Still, incredibly, the government fails to directly challenge the validity of the New York State documentation by questioning the authenticity of the documents themselves. Instead, it merely speculate that it can be inferred that the same suspect birth certificate at issue here was likely used to obtain those documents. To the contrary, it should be inferred that Kevin presented valid and authentic proofs of identity such as a birth certificate, and proof of U.S. Citizenship and New York State residence, to secure these documents. Subsequently, a court should determine, as the Ninth Circuit did in Rodriguez, that the government cannot be harmed by the granting of the injunction that ends an unconstitutional detention. Moreover, the government cannot claim that releasing Kevin would be prohibitively burdensome because he is just one person asking for a single hearing for immediate release or a post-deportation bond hearing. The government claims that Kevin has provided no evidence to corroborate his testimony about moving to the United States when he was four-years old. It is simply objectively unreasonable to expect young children to retain documents reflecting their daily activities at such a young age. Kevin’s release would serve the public interest in protecting an individual’s constitutional rights. In short, none of the irrelevant matters that the government has brought to the Court’s attention shows that Kevin’s removal is significantly likely in the reasonably foreseeable future. Therefore, just as the Ninth Circuit determined in Rodriguez, an appropriate remedy in Kevin’s case would be to grant a preliminary injunction.
IV. Race, Gender, And Prison Conditions
On a broader level, the government’s practice of locking up immigration detainees implicates race and gender complexities. Some scholars observe that immigration is a racialized issue. Professor Kevin Johnson argues that “[r]acial exclusions have evolved into new and different devices that have racial disparate effects on prospective immigrants to the United States . . . race remains central to the operation and enforcement of U.S. immigration law. In addition, the racial diversity of the immigrant stream demonstrates that immigration detention has never been a white/brown issue even through mainstream America may tend think of the deportation as only affecting Latino/a immigrants. “African and Haitians seeking to come to the United States, for example, historically have been subject to particularly harsh treatment by the U.S. government.” 
Asians are also targets of aggressive immigration policies such as the Illegal Immigration Reform and Immigrant Responsibility Act and the Anti-Terrorism and Effective Death Penalty Act which make it mandatory for immigrants with lawful permanent resident status to be removed from the United States because of a prison criminal conviction.  Southeast Asian refugee youth from lower economic backgrounds are especially vulnerable, even though they grew up in the United States.
Taken as a whole, this intersection of immigration and incarceration systems is separating African American and immigrant families alike. Much has been written about the phenomenon of mass incarceration. First, Professor Michelle Alexander characterizes mass incarceration as a new racial caste system in The New Jim Crow: Mass Incarceration in the Age of Colorblindness. She argues that the criminal justice system crated and perpetuated a hierarchy in the United States. The result is that “[t]he Supreme Court has now closed the courthouse doors to claims of racial bias at every stage of the criminal justice process, from stops and searches to plea bargaining and sentencing.”
Alexander further argues that addressing the disparity of racial bias in crack sentencing “is just the top of the iceberg” because the caste system depends on the prison label affixed to felons, and not the time they served in prison.  The felon label precludes a felon from employment and access to housing, as well as enjoying the privileges of citizens such as voting and jury service.  “Those labeled felons will contained to cycle in and out of prison subject to perpetual surveillance by the police,  unable to integrate into the mainstream and economy.” 
Second, in No Equal Justice: Race and Class in the American Criminal Justice System, Professor David Cole suggests that the Criminal Justice System is based on the principle of equality before the law, and the administration of criminal law is predicated on “exploitation of inequality.”  Cole argues that:
Our criminal justices system affirmatively depends on inequality. Absent race and class disparities, the privileged among us could not enjoy as much constitutional protection or our liberties as we do; and without those disparities, we could not afford the policy of mass incarceration that we have pursued over the past decades. 
He professes that this creates two systems of criminal justice: one for the privileged, and another for the less privileged, which is prominently showcased in crack cocaine sentencing.  According to Cole, “African Americans comprise more than 90 percent of those found guilty of crack cocaine crimes, but only 20 percent of those found guilty of powder cocaine crimes.”  He explains that “it is unimaginable that our country’s heavy reliance on incarceration would be tolerated if the Black/White incarceration rates were reversed, and whites were incarcerated at seven times that Blacks are.” Cole further criticizes the crack sentencing disparity in asserting that “crack cocaine is nothing more than powder cooked up with baking soda . . . yet the crack/powder distinction has ensured that significant racial inequalities remain.”  These disparities caused by harsh tough-on-crime attitudes motivating the war on drugs are tolerated, Cole says, because it disproportionate minority and not whites. Cole implores the courts, legislatures, and police departments to eliminated or reduce the double standards.
Alexander and Cole are joined by other scholars also note the problems inherent in drug sentencing. Professor Paul Butler partly attributes the difficulty of addressing racial mass incarceration as a result of the Supreme Court’s equal protection jurisprudence, which requires discriminatory intent, rather than effect. Furthermore, Butler argues the Supreme Court’s criminal procedural jurisprudence pays deference to law enforcement discretion, effectively nullifying civil rights litigation on these issues.
Likewise, Professor Ian Haney Lopez critiques claims that massive racial disparities in criminal sentencing are “not racism.”  To the contrary, he argues that “Colorblindness operates hand-in-hand with the criminal [justice] system on a broader cultural level. . .[t]he insistence that race plays no role unless openly involved ultimately facilitated the emergence of crime as a proxy language for race.”  These comments highlight how incarceration and criminal law has increasingly merged with the experiences of immigration. As one commentator notes, “Mass deportation stigmatizes all Latinos in the same way that mass incarceration stigmatizes all African Americans.” 
Beyond race, there is also a growing amount of women who are placed on immigration detainers due largely to the fact that immigrant women make up a growing share of the low-wage immigrant workforce and have been prosecuted of drug offices and sentenced under harsh federal mandatory sentences.  The advent of more women detainees coincided with an increase in sexual abuse and assault in immigration detention facilities reflected in reports, documentaries and complaints of ongoing basis while detainees are in ICE custody. 
Fortunately, these issues facing detainees are gaining attention. The American Civil Liberties Union Foundation (ACLU) of Georgia, upon completion of a study conducted beyond three years, issued a report on conditions of detention for immigrants in the state and Georgia which concluded that those conditions violated detainees’ constitutional and human rights, in addition to ICE standards. The ACLU cited to due process concerns where it found that detainees in four facilities reported instances where ICE officers, deportation officers, and immigration judges attempted to coerced detainees to sign stipulated removal orders; and non-citizens were detained in excess of a presumptively reasonable time; and situations where non-English speaking detainees could not effectively communicate with ICE officers.  With regards to due process concerns at the facility, according to some detainees interviewed, there was inadequate information about pro bono legal services, inadequate conditions for attorney visits, and delays to access to the law library.  Detainees also complained about extreme temperatures in their cells, overcrowding, and held concerns about hygiene and food.
In the end, limitations must be placed on the duration of imprisonment. Consistent with the pragmatic approach advocated by Justice Breyer in interpreting the Constitution to promote workable government without compromising constitutional principles, and illustrated in practice in Zadvydas,  if other circuits apply the rationale of Rodriguez to post-detention hearing cases, detainees like Kevin would be afforded due process of law and courts can avoid paying undue deference to the ICE deportation process.
. Attorney, Federal Defenders of the Middle District of Georgia, Inc. The views expressed herein are not necessarily attributed to any past, present, or future employers. The author thanks Mathew Graham and the other editors of the Gonzaga Journal of Immigration Law for their hard work and assistance in preparing this essay, and for their invitation to participate in the Journal’s annual spring symposium.
. Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013).
. See generally id.
. Id. at 1127.
. Id. at 1133.
. Id. at 1133.
. See id.
. Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
. Rodriguez, 715 F.3d at 1143 (quoting Demore v. Kim, 538 U.S. 510, 526 (2003)).
. Rodriguez, 715 F.3d at 1134.
. Id. at 1144.
. Id. at 1133.
. Id. at 1137.
. Id. at 1145.
. Id. at 1145-46.
. Id. at 1146.
. Id. at 1146.
. See Maunica Sthanki, Deconstructing Detention: Structural Impunity and the Need for an Intervention, 65 Rutgers L. Rev. 447, 452-56 (2013).
. See Bill Ong Hing, Reason Over Hysteria, 12 Loy. J. Pub. Int. L. 275, 293-94 (2011) (reporting that “The Obama administration is deporting record numbers of undocumented immigrants, and ICE expected to remove about 40,000 individuals in the 2010 fiscal year”).
. Kevin pleaded guilty to Count One of a Two-Count Indictment. Count One charged that Kevin did possess with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). Kevin’s case is a hypothetical based in part on Mitchell v. Gonzales, No. 4:06cv333-WS, 2007 WL 121348, at *1-3 (N.D.Fla. Jan. 12, 2007).
. See also Peter L. Markowitz, Straddling the Civil-Criminal Divide: A Bifurcated Approach to Understanding the Nature of Immigration Removal Proceedings, 43 Harv. C. R. – C. L. L. Rev. 289. 295 passim (2008).
. See Zadvydas, 533 U.S. at 699-700 (holding that “§ 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention”).
. See Singh v. Holder, 638 F.3d 1196, 1202 (“Although § 1226(e) restricts jurisdiction in the federal courts in some respects, it does not limit habeas jurisdiction over constitutional claims or questions of law.”).
. Madu v. U.S. Attorney General, 470 F.3d 1362 (11th Cir. 2006).
. Id. at 1368.
. Id. at 1364.
. Id. at 1365.
. Id. at 1366.
. Id. at 1367-68.
. Id. at 1367.
. Id. at 1368.
. Singh, 638 F.3d at 1202.
. Id. at 1211 (citing to H.R. Rep. No. 109-74, at 175 (2005)).
. Id. at 1211 (alterations in original) (citing Casas-Castrillon v. Dept. of Homeland Security, 535 F.3d 942, 946 (9th Cir. 2008)).
. Singh, 638 F.3d at 1211; see also, Flores-Torres v. Mukasey, 548 F.3d 708, 711 (9th Cir. 2008) (holding that district court had habeas jurisdiction to review immigration detention challenge based on detainee’s position that he was a U.S. citizen, and because 8 U.S.C. § 1226(a) only applied to aliens, his detainment was not lawful.); Elashi v. Sabol, 714 F. Supp. 2d 502, 503-04, 507 (M.D. Pa. 2010) (granting habeas corpus petition in case where petitioner challenged his continued detention pending removal, but not the final order of removal).
. 8 U.S.C. § 1231(a)(2) (2013).
. 8 U.S.C. § 1231 (a)(1)(B)(i) (2013); see also 8 C.F.R. § 241.4(g)(1)(ii)(2013).
. 8 U.S.C. § 1231(a)(1)(C); see also 8 C.F.R. § 241.4(g)(1)(ii).
. See 8 C.F.R. § 241.1.
. See 8 C.F.R. § 241.4; see also 8 C.F.R. § 241.13.
. 8 C.F.R. § 241.4(d)(1).
. See 8 C.F.R. § 241.4(k)(1)(i).
. 8 C.F.R. § 241.13(b)(1).
. 8 C.F.R. § 241.13(a).
. 8 C.F.R. § 241.13(b)(2)(ii).
. 8 C.F.R. § 241.13(f).
. 8 C.F.R. § 241.13(g)(1); see also 8 C.F.R. § 241.14 regarding “special circumstances.”
. See 8 C.F.R. § 241.13(e)(2).
. See generally Zadvydas, 533 U.S. at 690-93.
. See e.g., Wong Wing v. United States, 163 U.S. 228, 238 (1896) (holding that “all persons within the territory of the United States are entitled to the protection guaranteed by [the fifth and sixth] amendments”); Matthews v. Diaz, 426 U.S. 67, 77 (1976) (“The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of [the aliens within the jurisdiction of the United States] from deprivation of life, liberty, or property without due process of law”); Plyer v. Doe, 457 U.S. 202, 210 (1982) (“Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”).
. See Zadvydas, 533 U.S. at 699-90.
. Id. at 684-86.
. Id. at 701.
. See Stephen Breyer, Making Our Democracy Work: A Judge’s View, 102-03 (2010).
. Id. at 105.
. Clark v. Martinez, 543 U.S. 371 (2005).
. Id. at 386.
. See Id. at 386-387; see also Benitez v. Wallis, 402 F.3d 1133, 1135 (11th Cir. 2005) ( holding “Clark effectively ends this case. There is no contention that conditions in Cuba have changed so that Benitez’s removal to Cuba is reasonably foreseeable. Therefore, until this Country’s relationship with Cuba changes so that removal is reason- ably foreseeable or Congress amends 8 U.S.C. § 1231(a)(6) to distinguish between resident aliens and inadmissible aliens, Clark dictates that Benitez is entitled to be released and paroled into the country.”).
. 8 C.F.R. § 241.4(g)(1)(ii).
. Cheek v. United States, 498 U.S. 192, 202 (1991).
. 8 U.S.C. § 1406 (2012); Great Cruz Bay, Inc., St. John, Virgin Islands v. Wheatley, 495 F.2d 301, 306, fn.7 (3d Cir. 1974).
. Murphy v. INS, 54 F.3d 605, 612 (9th Cir. 1995).
. Id. at 607.
. Id. at 610.
. Murphy, 54 F.3d at 611.
. Id. at 612.
. 8 U.S.C. § 1401(f).
. People v. Quiroga-Puma, 848 N.Y.S.2d 853, 856-857 (2007) rev’d on other grounds, 884 N.Y.S.2d 567 (N.Y. App. Term 2009).
. See Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995) (holding that denial of benefits was not supported by substantial evidence).
. Zadvydas, 533 U.S. at 701.
. See e.g., Nadarajah v. Gonzales, 443 F.3d 1069, 1080 (9th Cir. 2006) (“A detention of nearly five years-ten times the amount of time the Supreme Court has considered acceptable absent a special showing-is plainly unreasonable under any measure.”); Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005) (ruling in favor of detained who had been held for two years and eight months pending removal proceedings); Ly v. Hansen, 351 F.3d 263, 273 (6th Cir. 2003) (although the petitioner was in part responsible for the delay, the court found that continued detention was unreasonable and affirmed the grant of the writ of habeas corpus); Xi v. INS, 298 F. 3d 832, 840 (9th Cir. 2002) (holding that Immigration and Naturalization Service was required to limit alien’s post-removal-period detention to reasonable time period, applied to alien deemed inadmissible to United States); Khalafala v. Kane, 836 F. Supp. 2d 944, 959 (D. Ariz 2011) (holding that continued detention without post-removal-period bond hearing violated his right to due process); Martinez v. Gonzales, 504 F. Supp. 2d 887, 900 (C.D. Cal 2007) (holding that detention for over five years was excessive and unauthorized by 8 U.S.C. §1226 (c) and that there was no significant likelihood of removal in the reasonably foreseeable future, so as to make continued detention reasonably necessary to bring about the alien’s removal); Madrane v. Hogan, 520 F. Supp. 2d 654, 670 (M.D. Pa 2007) (holding that alien’s continued detention was a due process violation and alien’s immediate release on his personal recognizance was required).
. See Abdel-Muhti v. Ashcroft, 314 F. Supp. 2d 418, 430 (M.D. Pa. 2004) (“Surely, just as what qualified as ‘reasonably foreseeable future’ must shrink under Zadvydas as the length of confinement grows, so must the amount of evidence supporting a finding of non-cooperation expand with the length of detention.”).
. Mitchell v. Gonzales, No. 4:06cv333-WS, 2007 WL 121348, at *1-3 (N.D. Fla. Jan. 12, 2007).
. Id. at *9.
. Id. at *3.
. 2007 WL 121348, at *2.
. Id. at *3.
. Id. at *8
. Id. (citing Zadvydas, 533 U.S. at 690, 699-700).
. 2007 WL 121348, at *7.
. See Rodriguez, 715 F.3d at 1144.
. See id. at 1145.
. See Kevin R. Johnson, The Intersection of Race and Class in U.S. Immigration Law and Enforcement, 72 Law & Contemp. Prob., at 1, 15 (2009).
. See Nina Rabin, Unseen Prisoners: Women in Immigration Detention Facilities in Arizona, 23 Geo. Immigr. L.J.702 (2009) (describing the growing share of women among immigrant detainees). Cf. George A. Martinez, Immigration: Deportation and the Pseudo-Science of Unassimilable Peoples, 61 SMU L. Rev. 7, 13 (2008) (describing popular perception that Mexicans and Latinos constitute unassimilable peoples).
. See Johnson, supra note 105, at 34-35
. Elizabeth R. Ouyang, Immigrants with Prior Criminal Record Risk Removal from the United States—Impact on Asian Immigrants, 18 Asian Am. L.J. 157, 157-58 (2011).
. Id.at 162.
. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 16 (2010). See also Christopher J. Tyson, At the Intersection of Race and History: The Unique Relationship Between the Davis Intent Requirement and the Crack Laws, 50 How. L. J. 345, 346 (2007) (arguing that “[r]acialized mass imprisonment is a social, economic, and political process spurred by draconian anti-drug abuse sentencing legislation that simultaneously impacts the visibility of the Black community, the legitimacy of the criminal justice system, and the health of American Democracy”); Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African American Communities, 56 Stan. L. Rev. 1271, 1304 (2004) (“The mounting evidence of mass imprisonment’s collateral damage to African American communities shows that the extent of U.S. incarceration is not only morally unjustifiable, but morality repugnant. By damaging social networks, distorting social norms, and destroying social citizenship, mass incarceration serves a repressive political function that contradicts democratic norms and is itself immoral.”).
. See Alexander, supra note 110, at 16.
. Id. at 135.
. Id. at 136.
. Id. at 192. See James Foreman, Jr., Racial Critiques of Mass Incarceration: Beyond the New Jim Crow, 87 N.Y.U. L. Rev. 21, 28 (2012) (reporting that “a person convicted of a crime today might lose his right to vote as well as the right to serve on a jury.”).
. Alexander, supra note 110, at 94.
. David Cole, No Equal Justice: Race and Class in the American Criminal Justice System 5 (1999).
. Id. (emphasis in original).
. Id. at 9.
. Id. at 8.
. Id. at 8.
. Id. at 142.
. Id. at 153.
. Id. at 188.
. Paul Butler, One Hundred Years of Race and Crime, 100 J. Crim. L. & Criminology 1043, 1058 (2010).
. See Ian F. Haney López, Is the “Post” in Post-Racial the “Blind” in Colorblind?, 32 Cardozo L. Rev. 807, 817 (2010).
. Id. at 816.
. César Cuauhtémoc Garcia Hernández, The Perverse Logic of Immigration Detention: Unraveling the Rationality of Imprisoning Immigrants Based On Markers of Race and Class Otherness, 1 Colum. J. Race & L. 353, 360 (2012); see also Raha Jorjani, Locked Up: Criminal and Immigration Incarceration in America, 4 DePaul J. for Soc. Just. 1, 5 (2010).
. Daniel I Morales, It’s Time For An Immigration Jury, 108 Nw. U. L. Rev. Colloquy 36, 36 (2013).
. See Rabin, supra note 104, at 702.
. ACLU, Holiday on ICE: The U.S. Department of Homeland Security’s New Immigration Detention Standards, 9 (Mar. 28, 2012).
. See ACLU of Georgia, Prisoners of Profit: Immigrants and Detention in Georgia 110 (2012).
. Id. at 13-14.
. Id. at 14-15.
. Id. at 16-17.
. See Breyer, supra note 63, at 104-105.