Nguyen v. B.I. Inc.
| Citation | 435 F.Supp.2d 1109 |
| Decision Date | 12 April 2006 |
| Docket Number | No. CV 04-1815-PA.,CV 04-1815-PA. |
| Parties | Son NGUYEN and Roberto De Oca Martinez, Petitioners, v. B.I. INCORPORATED, et al., Respondents. |
| Court | U.S. District Court — District of Oregon |
Christine Stebbins Dahl, Assistant Federal Defender, Portland, OR, for Petitioners.
Terri J. Scadron, Leslie McKay, Margot Nadel, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Ben Franklin Station, Washington, DC, for Respondents.
Petitioners Son Nguyen and Roberto De Oca Martinez bring this petition for writ of habeas corpus under 28 U.S.C. § 2241 claiming that the Department of Homeland Security (DHS)'s Intensive Supervision Appearance Program (ISAP), violates their constitutional rights, is beyond DHS's statutory authority, and violates the Administrative Procedures Act (APA).
I held a court trial on March 13, 2006. These are my findings of fact and conclusions of law. Fed.R.Civ.P. 52. The petition is denied.
In February 2003, the United States Department of Justice and the General Accounting Office found that the Immigration and Naturalization Service (INS)1 was successful in deporting only 13% of non-detained aliens subject to final orders of removal (final-order aliens). Many of these aliens are not deported because their home countries refuse repatriation. These aliens can generally be held in Immigration and Customs Enforcement (ICE) custody up to 180 days, but most are released under orders of supervision that require compliance with conditions imposed by ICE.2
Hoping to improve supervision and decrease the number of absconding aliens, Congress appropriated $3 million to ICE in 2003 to develop "supervised release" programs as alternatives to detention for final-order aliens considered likely to abscond or to pose a threat to public safety.
In response to this congressional directive, DHS developed the ISAP program, which is operated by respondent Behavioral Interventions, Inc. (BI), a private contractor.
ISAP has helped to improve removal rates because of the supervision ISAP case specialists are able to provide to program participants in comparison to the typical final-order alien who is subject only to an order of supervision. The average ISAP case specialist is responsible for 35-50 aliens, while the average ICE deportation officer in Portland is responsible for about 1,000.
ISAP now operates in eight cities and is used for three general categories of aliens: (1) aliens who are in removal proceedings but have not yet been issued final orders of removal and may be at risk to flee; (2) aliens who have been issued final orders of removal and are considered dangerous, but who cannot legally be held in custody any longer; and (3) aliens with final orders of removal who have been released from custody on general orders of supervision, but who have violated their orders by committing crimes or otherwise failing to comply with release conditions. Both petitioners here fall into the third category.
ICE refers aliens to the ISAP program, which consists of three phases of supervision: intense, intermediate, and regular. The intense phase lasts for a minimum of thirty days. During this time, participants are electronically monitored with a small, lightweight bracelet worn on the leg that can be concealed by socks or long pants. The monitoring is used to confirm that aliens are in their residences during the 12-hour daily curfew period. Case specialists work with participants to create flexible schedules so that participants may divide the 12-hour curfew into segments to accommodate employment and family commitments. Participants must report to the ISAP office 3 times per week for 5-10 minute visits with case specialists during the intense phase. Case specialists also make two unscheduled visits per month to the residences of participants to verify compliance with curfew, satisfactory living conditions, and the proper functioning of electronic monitoring devices. Case specialists do not search residences.
After thirty days, participants who comply with the rules of the intense phase as well as their orders of supervision are moved to the intermediate phase. During the intermediate phase, electronic monitoring is discontinued and participants must report to the ISAP office only once per week. BI employees make only one unscheduled residence verification visit per month.
During the regular phase, the reporting requirement drops to two times per month. The residence verification remains at one per month. Participants must submit a monthly schedule to their case specialist and adhere to it throughout their time in ISAP. During the intermediate and regular phases of the program, curfews range between eight and ten hours per day.
There is no contractual minimum or maximum amount of time that an alien must spend in ISAP, but ICE will generally terminate an alien's participation in the program within one year if there have been no serious violations of program requirements.3 Once terminated, the alien will be placed under a regular order of supervision. Serious violations of program requirements can lead to the alien being sent to a more intense phase of ISAP supervision or, in the case of a participant being charged with a crime, a return to prison or to ICE detention.
ISAP does not use physical restraint or direct surveillance. BI does not monitor the location of participants during non-curfew hours and does not impose restrictions, beyond those imposed by federal and state law, on the personal activities of ISAP participants.
ISAP participants can challenge an alleged program violation through a formal grievance process, discussed during ISAP orientation and explained in handbook issued to participants when they enter the program. Petitioners both testified that they are aware of the grievance process, but never complained about their monthly schedules or other program requirements.
Both petitioners are subject to final orders of removal. The parties agree that removal within the reasonably foreseeable future is not likely for either petitioner.
Nguyen, a citizen of Vietnam, became subject to a final order of removal in 1998. Nguyen has a lengthy criminal record, including conspiracy to commit murder and at least one major weapons charge. Nguyen was detained by INS and was then released under an order of supervision in June 2000.
In December 2003, Nguyen was convicted in an Oregon court of criminal mischief and served 13 months in state prison. Upon release from state prison, Nguyen was transferred to ICE custody. Rather than detaining Nguyen, which would have been within its legal authority because he had violated his order of supervision, ICE released Nguyen to the ISAP program on March 17, 2005. Nguyen has complied with program requirements and at the time of trial was set to be terminated from ISAP and placed back on a regular order of supervision on March 15, 2006.
Martinez, a Cuban citizen, was convicted in September 2000 of delivery of a controlled substance (methamphetamine). He spent more than two years in state prison and was transferred to INS custody in December 2002 after receiving a final order of removal. After 90 days in custody, ICE released Martinez under a regular order of supervision.
In April 2005, Martinez was convicted in an Oregon court on drugs and weapons charges. He served three months in state prison and was released to ICE custody on August 1, 2005. ICE transferred Martinez to ISAP and he has complied with ISAP rules. Martinez is scheduled to be terminated from the program and placed back on a regular order of supervision on August 1 of this year.
Petitioners contend that ISAP regulations requiring participants to remain in their residences between eight and twelve hours per day constitute "detention" that is outside ICE's statutory authority to impose reasonable "restrictions on the alien's conduct or activities that [the Secretary of Homeland Security] prescribes for the alien." 8 U.S.C. § 1231(a)(3)(d). Petitioners contend that the government's authority to restrict aliens subject to final orders of removal is limited to imposing those conditions necessary to ensure the availability of an alien should removal become possible.
ICE may detain aliens who are subject to final orders of removal, but it generally must release these aliens after six months if "there is no significant likelihood of removal in the reasonably foreseeable future." Zadvydas v. Davis, 533 U.S. 678, 701, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001); Tuan Thai v. Ashcroft, 366 F.3d 790, 797 (9th Cir.2004); see also Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006) ().
Although ICE cannot keep final order aliens in custody indefinitely, it does have the authority to release these aliens under conditions of supervision and can return aliens to detention or seek criminal penalties against aliens who violate their orders of supervision. Zadvydas, 533 U.S. at 695, 121 S.Ct. 2491; Tuan Thai, 366 F.3d at 799; 8 U.S.C. § 1253(b) ().
Both petitioners were released from ICE custody under orders of supervision and were placed in ISAP only after violating their orders by being convicted of serious crimes.
I conclude that placement in ISAP is not detention. It is a form of supervision that uses no physical restraints or surveillance, both of which are typical characteristics of detention. Even if ISAP were considered detention, it is certainly less restrictive on participants than living in a federal detention center.
It is within the discretion of ICE, in its authority...
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