Homeland Security Is Ordered to Respond to Petition on Immigration Jails

NEW YORK CITY (By Nina Bernstein, NYT) June 27, 2009 — Substandard and abusive conditions in immigration detention “are of the utmost importance,” a federal judge in Manhattan said Thursday, ruling that the Department of Homeland Security’s 2 ½-year delay in responding to a petition for legally enforceable regulations was “unreasonable as a matter of law.”

The judge, Denny Chin of Federal District Court in Manhattan, ordered the Obama administration to grant or deny the petition asking for detention rules within 30 days. He denied the government’s motion to dismiss a lawsuit, filed last year by two former immigration detainees and two advocacy agencies, seeking to force a response.

No enforceable standards now exist for the immigration detention system, a rapidly growing conglomeration of county jails, federal centers and privately run prisons across the country where problems of detainee mistreatment have been persistent and widespread.

The lawsuit contends that the lack of regulations puts hundreds of thousands of people a year at risk of abuse and inadequate medical care while the government decides whether to deport them.

The suit is based on the Administrative Procedure Act, which allows courts to force agencies to respond to rule-making petitions. Though the suit was filed during the Bush administration, the judge’s 14-page decision reflects impatience with the new delaying tactics used by its successors.

Dan Kesselbrenner, executive director of the National Immigration Project of the National Lawyers Guild, a plaintiff in the suit, said, “We hope the Obama administration will use this opportunity to provide enforceable detention standards, which would be consistent with its stated goal of promoting accountability in government.”

Matt Chandler, a spokesman for Homeland Security, said only that the agency would comply with the court order by responding to the plaintiffs’ petition within 30 days.

The petition requesting that Homeland Security make its detention standards enforceable was filed in January 2007, but only acknowledged 18 months later, with a letter last July stating that Homeland Security and Immigration and Customs Enforcement “continue to study the possibility of commending a rulemaking action.”

“The letter does not grant or deny plaintiffs’ petition” as the law requires, Judge Chin wrote.

Homeland Security moved to dismiss the lawsuit last October. After oral arguments, the judge reserved his decision, urging the parties to resolve the matter. The departing administration asked for more time, saying it would issue a final decision by Jan. 16, then asking for five more days.

By then, President Obama had taken office, and there was an expectation of change by the plaintiffs, who also include Families for Freedom, a New York-based advocacy group for immigrant detainees; Rafiu Abimbola, a Nigerian who was detained for more than six years while seeking asylum; and Camal Marchabeyoglu, now a legal permanent resident living in Corona, Calif.

But on January 21, Homeland Security informed the court that it could neither meet the deadline nor commit to a date by which it would reply. No recommendations have yet emerged.

“Plaintiffs allege that detainees in D.H.S. custody are dying as a result of the substandard conditions under which they are held,” Judge Chin wrote in his decision. “Plaintiffs’ claim clearly implicates concerns of human health and welfare, making D.H.S.’s delay in responding to the petition that much more egregious.”