U.S. Ordered to Produce Documents on Immigrant Detainees

, New York Law Journal

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A federal judge has told U.S. Department of Homeland Security officials to stop dragging their heels and start producing documents on immigrants detained for prolonged periods of time.

Southern District Judge Richard Berman on Monday rejected the government's motion to reconsider his Dec. 19 denial of its motion for a stay pending appeal of a September decision in which Berman ordered the production of thousands of documents sought by the American Civil Liberties Union on detained immigrants under the Freedom of Information Act.

The judge on Monday chastised the government on several fronts and reiterated what he told the parties at a Nov. 13 conference, saying, "[T]he Government continues, quite obviously, to drag its heels in providing disclosure about immigrant detentions. Hopefully it is not also trying to hide or obscure a distressing system or set of facts."

In ACLU v. U.S. Department of Homeland Security, 11 Civ. 3786, the ACLU sued Homeland Security and U.S. Customs Enforcement (ICE) seeking information on prolonged detentions of immigrants without action being taken on their status. Its lawsuit stated that detainees were being held "for months, if not years, without adequate procedures in place to determine whether their detention is justified."

The complaint cited a statement from the U.S. General Accounting Office in 2004 that "ICE does not have the information that provides assurance that its custody reviews [of detainees] are timely and its custody determinations are consistent with [the law] and implementation regulations."

And the ACLU also cited a 2007 report by the Inspector General of Homeland Security that determined that "required custody decisions were not made in over 6 [percent] of cases and were not timely in over 19 [percent] of cases."

The ACLU alleged that "thousands of immigrant detainees continue to languish in immigration jails for periods far exceeding six months…often [facing] deplorable conditions of confinement even worse that those faced by convicted prisoners."

When the ACLU filed its original Freedom of Information request in 2009, the government offered what Berman called "(very) unpersuasive arguments" in opposition, including that the information sought would implicate the privacy interests of detainees.

Berman granted summary judgment for the ACLU on Sept. 9, 2013, directing that some documents in a stipulation be produced while the parties continued to identify other relevant documents that would ultimately be produced.

The government filed notice of appeal on Nov. 12, and then applied to Berman for a stay pending appeal.

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