Although Louisiana, the incarceration capital of the world, has made some progress in recent years in regard to criminal justice reform, the state has also taken some notable huge steps backward with a massive expansion of immigrant detention.
Through the last decade, Immigration and Customs Enforcement (ICE) contracted with local officials, as well as for-profit prisons to quickly and quietly fill empty jail beds in rural Louisiana with detained immigrants.
By summer 2019, the state had 12 facilities spread out over hundreds of miles, with the total detention capacity of Louisiana widening to 7,000 beds.
Trinidad Reyes, a researcher at Tulane Immigration Rights Clinic, commented that while in the United States, “The number of detained immigrants fell dramatically during the COVID-19 pandemic, Louisiana continues to serve as a detention hub, holding nearly 2000 detained immigrants and remains the state with the second-highest detained population in the country.”
Because the facilities are located in rural locations, they are hours away from cities with advocates, community groups, and legal service providers, making it nearly impossible for detained immigrants to secure counsel or see their family and friends.
Alone, cut off from aid and resources, and incarcerated for indefinite periods of time, detained immigrants have no choice but to file habeas corpus petitions, which argue that their civil detention has become punitive because they have been detained for an unconstitutionally long period of time.
In the landmark Zadydas v. Davis case, the Supreme Court ruled that there are “serious constitutional problems” with indefinite detentions. The ruling found that detention beyond six months after the end of an immigration court proceeding raised constitutional concerns.
Despite the fact that indefinite detainment is largely viewed as constitutionally problematic, seeking release through habeas corpus is a complex, time-consuming, and frequently inaccessible process for detained immigrants, the majority of whom have to navigate the system without legal representation or an interpreter.
The Tulane Immigration Rights Clinic just released an analysis of 499 Louisiana habeas cases filed in federal court from 2010 to 2020 titled “No End in Sight: Prolonged and Punitive Immigration Detention in Louisiana” which examines the issues detained immigrants face in habeas cases, and what their outcomes normally are.
The report found that immigrants in Louisiana are routinely denied their right to a speedy review of habeas corpus petitions, leading to their indefinite, prolonged, and punitive detention.
The report explained, “In our study, immigrants had been detained for nearly one year and one month, on average, at the time they filed their habeas petitions. In the longest instance, a petitioner was detained for six and a half years before they filed for habeas relief. After filing, many detainees often wait many more months, and at times, even years longer, before their cases are resolved. Nineteen detained immigrants filing for habeas were detained more than 1,000 days, and four of them had filed two habeas petitions.”
Habeas petitions take about six months on average from the date the case is filed to the date it is terminated. However, some cases are exceedingly short, ending after they are dismissed due to procedural error.
To be specific, 20% of habeas cases for detained immigrants in Louisiana are dismissed due to procedural error. These procedural errors range from detained immigrants not being able to pay the $5 filing fee, failing to update their address when they’re moved to new facilities, or making errors on the 9-page court-mandated form only available in English that requires legal arguments and case history.
Researchers also found serious challenges for detainees to access lawyers to represent them in their habeas case, with 85% of detained immigrants filing their cases without legal representation, despite the fact that it has been proven that legal representation would improve their chances of being released.
“We found so many cases where claims were dismissed not for lack of merit but for lack of resources,” said Sara Wood, also a law student researcher. “For example, the Court dismissed the petition of a detained immigrant with AIDS because he could not pay the $5 filing fee.”
In 42% of the cases analyzed, detained immigrants did not pay the $5 filing fee for their petition because they weren’t able to afford it. Over half that didn’t pay included a written request for a fee waiver, however, one-third of the fee waiver requests were denied.
Despite everything detained immigrants have to go through to be released, the report concluded that “In 44% of cases, ICE never entered the case and never had to provide a legal reason for the immigrant’s continued detention.”
One of the most disturbing things the report highlighted was racial disparities in who was filing habeas cases, with Black immigrants representing 57% of the detained immigrants filing, despite the fact that Black immigrants only make up 4.8% of detained immigrants in Louisiana. This huge disparity shows that racial bias impacts who is being detained at these facilities for long spans of time.
Detained immigrants who apply for habeas often have ties to the United States, having lived an average of 16 years in the US before filing their petition. 40% of habeas petitioners held some immigration status, most commonly being a lawful permanent resident, prior to filing their habeas petition. Lawful permanent residents, which are individuals who hold green cards, can be deported for reasons that range from failing to update their address to being convicted of certain crimes.
In 22% of cases, ICE voluntarily released the detained immigrant to the community before the Court made a formal ruling. These “shadow wins,” while positive because they result in detained immigrants being released, are more beneficial for ICE. Often these releases come months or even years into the case, deny immigrants the vindication of their legal rights, and allow ICE to avoid any negative court decisions that make formal rulings in regard to indefinite and punitive detention.
Because shadow wins are recorded as “losses” for defendants by the Court, it makes taking these cases on seem pointless to attorneys since the loss rate is so high. Not to mention, shadow wins also prevent attorneys from receiving litigation fees, disincentivizing them from taking on detained immigrant clients.
Although detained immigrants were released in one-fifth of cases, hardly any of them won an order from the Court that found their detention unlawful. In fact, only 1% of the cases analyzed, which was 5 cases in total, resulted in a Court-ordered release. Of these 5 cases, 3 were in 2020.
One resulted from the medical risks a detainee faced due to the COVID-19 pandemic, and the other two were released because they were Venezuela immigrants and there was a total breakdown of diplomatic relations with the country which meant they could not be deported. The other two immigrants who won release in 2011 and 2014 were successful because they also could not be deported due to a breakdown of relations.
At the end of the report, researchers offered recommendations to the Court, immigration authorities, and advocates to reduce potentially unconstitutional detention and promote transparent, efficient, and reasoned adjudication. They recommended immigration detention be curtailed and facilities closed, that habeas petitions be processed more speedily and fairly, and that legal information access is expanded for detained immigrants.
