Judge Orders Agency Action on immigration Detainees. Calls delay “egregious” and “unreasonable as a matter of law.”

NEW YORK – Citing “persistent and widespread” problems in the federal immigrant detention system, Judge Denny Chin recently ordered the Department of Homeland Security to respond within 30 days to a petition by immigration detainees and civil rights groups that seeks to improve detention conditions at facilities across the country.

The government’s immigration detention system, which has caused an as-yet unknown number of deaths in recent years and subjected thousands of immigrants to inhumane conditions, has been described by a Washington Post investigation as “a hidden world of flawed medical judgments, faulty administrative practices, neglectful guards, ill-trained technicians, sloppy record-keeping, lost medical files and dangerous staff shortages.” Internal governmental reports agree.

Judge Chin said that the government’s delay in responding to these problems was unlawful. “DHS’s nearly two-and-one-half year delay in deciding plaintiffs’ petition is unreasonable as a matter of law,” he held. “Plaintiffs’ claim clearly implicates concerns of human health and welfare, making DHS’s delay in responding to the petition that much more egregious.”

Immigration detention is a non-criminal, civil custody system that often includes refugees seeking shelter from political persecution, women, children, and the elderly.

“We are thrilled that the district court recognized that the Department of Homeland Security is not above the law,” said Dan Kesselbrenner, executive director of the National Immigration Project of the National Lawyers Guild (NIP NLG), a plaintiff in the suit. “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.”

Although DHS subcontracts with approximately 400 private facilities and state and local jails to house the detained immigrant population, and there are no binding regulations that govern the conditions of those facilities—unlike other federal incarceration systems. In an effort to alleviate the crisis, a wide coalition of immigrants and immigrant advocacy organizations led by the National Immigration Project, petitioned DHS in January of 2007, requesting that the Department initiate a public rulemaking process and promulgate comprehensive, binding rules to ensure that all subcontracted facilities meet minimum health and safety standards.

After DHS failed to even acknowledge the petition for over a year, the New York-based organization Families for Freedom and the NIP NLG, along with Camal Marchabeyoglu and Rafiu Abimbola, two former immigration detainees, filed suit against the government to compel consideration of the request for uniform regulations.

Judge Chin gave the government 30 days to respond to the petition.

Congresswoman Lucille Roybal-Allard has introduced legislation that would mandate better oversight of detention facilities, give currently unenforced standards the binding power of law, and enhance immigrants’ access to medical care, telephones, and protection from prison violence.

The plaintiffs are represented in their suit by law students Anand Balakrishnan, Ady Barkan, Anjali Dalal, Jeff Kahn, and Lindsay Nash, and supervising attorney Michael J. Wishnie, of the Jerome N. Frank Legal Services Organization, the clinical program at Yale Law School. The underlying petition for rule-making was prepared in 2006 by students in Prof. Wishnie’s administrative law class at NYU School of Law.