WASHINGTON – In 2001, the U.S. Supreme Court ruled in Zadvydas v. United States that the plenary power doctrine does not empower the United States to detain indefinitely aliens under order of deportation whom no other country will accept. In order to justify detention of aliens for a period longer than six months, the government was required to show removal in the foreseeable future or special circumstances.
The Center for Immigration Studies (CIS) has documented the shocking number of criminal aliens released back into communities across the country, many of whom could not be repatriated, some released by local or state governments with sanctuary policies that prefer to let violent criminals walk free rather than cooperate with Immigration and Customs Enforcement (ICE).
CIS cited the murder of Casey Chadwick, a 25-year-old woman from Norwich, Conn., by Haitian national Jean Jacques as just one recent example.
Jacques served the majority of a 20-year sentence for the 1996 double shooting of Fresnel Eugene, who was killed, and Nadia Joseph, who was seriously wounded, although he was only convicted of attempted murder and possession of a gun without a permit.
After Jacques was issued a final order of removal, Haiti refused to accept him.
Jacques, who came to this country illegally, was granted Temporary Protected Status by President Bill Clinton in 1995.
Repeated failed attempts to obtain repatriation documents from Haitian authorities resulted in his ultimate release from detention.
It was shortly after his release, Jacques, 41, went on to murder Chadwick.
Despite there being laws already on the books that would compel non-cooperative nations to meet their repatriation obligations, they’ve been ignored like many of our immigration enforcement laws.
Title 8 U.S. Code § 1253(b) states: “On being notified by the Attorney General that the government of a foreign country denies or unreasonably delays accepting an alien who is a citizen, subject, national, or resident of that country after the Attorney General asks whether the government will accept the alien under this section, the Secretary of State shall order consular officers in that foreign country to discontinue granting immigrant visas or nonimmigrant visas, or both, to citizens, subjects, nationals, and residents of that country until the Attorney General notifies the Secretary that the country has accepted the alien.”
This is not being done.
On June 16, 2016, John Roth, Inspector General for the Department of Homeland Security (DHS), sent a 30-page memo to DHS Secretary Jeh Johnson and ICE Director Sarah Saldaña in response to a Nov. 24, 2015 request by members of Congress to investigate the circumstances by which Jacques, previously convicted of attempted murder and subject to a final order of removal, was released from ICE custody.
Roth said the OIG’s objective was to conduct a factual inquiry regarding the incident, “to determine whether ICE adhered to its policies in the release and supervision of Jacques and whether such policies are sufficient to ensure the effective enforcement of U.S. immigration law.”
As a follow-up, Roth stated the OIG is undertaking a second phase of this review in order to determine whether the issues identified in the Jacques case are more widespread in ICE’s Enforcement and Removal, if DHS Enforcement and Removal Operations (ERO) has cohesive policy and procedures to remove priority level one aliens, and to identify systemic failures that may hamper removal efforts.
After outlining the three failed attempts made by ERO to repatriate Jacques after detaining him for 202 days, the OIG stated Jacques’ removal from custody effectively ended ICE’s efforts to remove him, whereas his supervision while on release was minimal and ineffective.
The OIG also noted the caseloads of deportation officers (DOs) in the field made personalized follow-ups with the aliens under their supervision functionally impossible. ERO Newark was cited as an example with three to four DOs assigned to approximately 37,000 released aliens.
There was no evidence ICE used a risk-based analysis for managing caseloads, which would have them focus on more dangerous aliens.
Instead, DOs in the field told the OIG they prioritized cases based on the potential for removability.
Even though they had the authority to do so, after Jacques was released from custody, there was no evidence DOs at ERO required Jacques to acquire additional documents that might have assisted in his removal.
The OIG pointed out there are few tools at a DO’s disposal to supervise aliens with a violent criminal history.
ICE’s Alternatives to Detention (ATD) program places conditions on aliens released from custody, such as electronic bracelet monitoring and home visits.
However, the program is only available for aliens who are deemed removable in the foreseeable future and is used to ensure aliens comply with court orders and do not flee.
DOs in ERO Hartford and ERO Newark told the OIG that the ATD program is not intended or regarded as a crime prevention tool.
According to the OIG there was also a disconnect between how headquarters and field officers viewed removal efforts.
For example, headquarters claimed Haiti was one of the more cooperative countries in assisting with removals while the view by many officers in the field was that removal to Haiti was quite difficult, if not impossible.
There was no evidence any subsequent efforts were made by DOs to remove Jacques while on an order of supervision nor was there any documentation indicating Jacques contacted relatives or reached out to the Haitian Embassy or Consulate to assist him with obtaining travel documents or establish his identity.
Several DOs in the field told the OIG the steps they took to achieve removal were discretionary and the likelihood of removal played the largest factor in determining whether to dedicate additional time to obtain an identity document.
While not familiar with the Jacques case, DOs said they would not have made additional efforts to remove Jacques, believing those efforts would have been futile since Haiti had already denied three repatriation requests.
Bogged down with an unwieldy case load, ERO Newark said one year it was only able to successfully remove 50 aliens out of about 34,000 cases.
Even though Jacques failed to meet all his scheduled reporting requirements, the OIG said there was no evidence ICE took him back into custody for non-compliance.
While there are three pending bills, S. 3277, H.R. 583 and H.R. 5224, introduced to remedy the situation, new laws will do nothing if, like laws already on the books, they are not enforced.
