Give Me Your Tired,
Your Poor...
A Report on Due Process Issues
in the Handling of Immigration Detainees in Massachusetts

Detention Working Group
of the

Massachusetts Chapter of the National Lawyers Guild
JULY 29, 2005

Credits & Acknowledgements
This report is based on information gathered by the Detention Working Group subcommittee of the National
Lawyers Guild. Group contributors to this report are Hayne Barnwell, Sarah Coleman, Benjamin Falkner,
Caline Jarudi, Owen Li, Urszula Masny-Latos, Alex Minnaar, Dawn Montague, Sara Pic, John Pollock, Camila
Sosman, Sara Stanley, Carl Takei, Stephanie Woldenberg and Denise Zwahlen.
We would like to acknowledge Dan Schutzsmith and Michael Harris for constructing our web-based database
and data analysis tools; Tania Mejer, for her extensive editing and layout that transformed the report into its
current form; and Guild immigration attorneys Susan Church and Halim Moris, who graciously reviewed the
report and provided feedback.
We also would like to thank Boston immigration court judges for allowing us to observe immigration
proceedings and for their willingness to answer our questions.
Last but not least, we would like to give special recognition to the group of former detainees and their families
who were willing to meet with us and share their experiences and insights on the detention process.

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About the Detention Working Group

T

he Detention Working Group (DWG) is a project of the Massachusetts Chapter of the National Lawyers
Guild (NLG, or “the Guild”). Founded in 1937, the Guild brings together legal professionals, law students
and community activists who believe the law should be an instrument for the people rather than a tool of
repression and who use the law to promote social, political and economic justice.
The DWG originated in the wake of September 11, 2001. In reaction to 9/11, the federal government required
male non-citizens from a list of 25 countries (almost all of which were Arab or Muslim) to report for a series
of Special Registration interviews, beginning in December 2002. Many of those who reported for interviews
ended up being detained and/or deported. Alarmed by this and other punitive policies targeting immigrants, the
Guild joined with a number of other New England organizations in a regional network of volunteers (called the
New England Immigrant Response to Detention Network [NEIRDN]), seeking to protect the rights of immigrant
detainees – particularly the Arab and Muslim immigrants who were required to report for Special Registration.
This network successfully provided information and access to legal resources to those going through Special
Registration. However, it soon became clear that the post-9/11 environment had contributed to harsher
immigrant detention and deportation policies across a broad range of ethnic, racial and religious groups, not
just Muslims and Arabs. After the Special Registration program ended in April 2003, the DWG developed as
an NLG spin-off from NEIRDN. Composed of lawyers, law students and community activists, the DWG spent
two years gathering information about the impact of detentions on Massachusetts immigrant families and
communities. The DWG set up a regular court observation schedule and developed procedures for collecting
information and interviewing detainee families. The DWG’s goal is to raise public awareness about the harms
caused by our nation’s immigrant detention and deportation policies, particularly with regards to due process
issues in the detainee hearings. This report represents the results of our investigation into detention practices
and policies.

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Table of Contents
Credits .......................................................................................................................... 2
About the Detention Working Group ............................................................................. 3
Introduction ................................................................................................................ 5-7
What This Report Contains
Overview of Findings
About the Data Analyzed in This Report
About the Detention Working Group’s Detainee Database

Overview of Immigration Detention Policies ............................................................ 8-10
Countries of Origin ................................................................................................ 11-12
Length of Detention and Time Spent in the United States Prior to Detention ....... 13-14
Legal Representation ............................................................................................ 15-16
Problems With Translation Services and Court Technology .................................. 17-19
Communication Problems .......................................................................................... 20
Mental Health Issues ............................................................................................. 21-22
Reasons for Deportation ....................................................................................... 23-26
Bond Issues ........................................................................................................... 27-30
Summary of Findings and Conclusions ...................................................................... 31
Footnotes ................................................................................................................... 32

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Introduction
What This
Report Contains
Trends in court
We monitored the trends in court by
sending law students and activists to
immigration courts to observe detention
and deportation-related hearings. During
their observations, the observers took
notes in a standardized format, which
they then entered into a central database
which we used to identify trends.

The topics we analyzed for this
report were:
• Countries of origin
• Length of detention and time spent in
the United States prior to detention
• Legal representation
• Problems with translation services and
court technology
• Problems communicating with family
members, attorneys and/or medical
professionals while in detention
• Mental health issues
• Reasons for deportation
• Bond issues

Trends out of court
Detention and detention policies have
far-reaching impacts on the families of
detainees and on immigrant communities,
as well as significant implications for
national and local policies and the
Constitution. Our information on outof-court trends comes primarily from
discussions we had with former detainees
or with their families. We also gathered
information from discussions with
organizations that serve Massachusetts
immigrant communities.

Give Us Your Tired, Your Poor...

Overview of Findings

T

he images in the Boston immigration courtrooms
were striking: men in orange jumpsuits with
shackled hands and feet waving sorrowful
goodbyes to their children over televideo connections;
people bursting into tears because their family members
are being deported and no one understands why; men
and women begging to be deported because of the
miserable conditions within the detention facilities.
The Detention Working Group’s observations of the
court process itself were equally alarming: Despite
the best efforts of judges, the system churned through
deportations at a rapid speed and at a great cost to
detainees’ rights. Unlike in criminal cases, there is
no right to free, court-appointed counsel even though
detainees are imprisoned in the same manner as those
facing criminal charges. Because of this, almost half of all
detainees whom we observed had no legal representation
at their hearings, forcing them to navigate a complex,
unfamiliar and unforgiving system by themselves.
Detainees with mental health problems were not always
represented by counsel, and there are neither safeguards
for the mentally ill in removal proceedings nor resources
allocated to the court to deal with such situations.
Added to all of that was a combination of technological
and linguistic barriers that created alarmingly frequent
difficulties. For instance, most detainee hearings were
not live but were conducted via televideo connections
that suffered from time delays and poor audio quality.
This often made it difficult for detainees to understand
the proceedings – particularly when the detainee needed
an interpreter. When televideo was combined with a
telephonic interpreter, these technical problems only
added to the stress of an already difficult situation; we
observed detainees upset, nervous and in tears as they
tried to understand their interpreters via speakerphone
piggybacked on an already difficult-to-hear televideo
connection.
We also observed that the system seemed to be
operating in a needlessly harsh and somewhat arbitrary
manner. On average, most detainees had been living
and working peaceably in the United States for over a
decade before their hearings. In one particularly poignant
case, a respondent who had arrived in the United States
in 1969 at the age of 10 had no family remaining in her
native Portugal but nevertheless was ordered deported.

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Introduction
Some countries appeared to be singled out for aggressive deportation tactics, particularly those countries that
were subject to the Special Registration process. And bond levels appeared to be handed out arbitrarily; some
detainees with little or no criminal history faced higher bonds than those with serious criminal records.
Although immigration proceedings are open to the public, people generally are not interested in attending
and/or following these hearings. Compounded with limited media coverage of immigration proceedings, there
is little awareness of the problems with the system. By reporting on our months of observations and interviews,
we aim to provide a general sense of trends in detainee courts as well as a general sense of the emotional and
psychological impact on the detainees and their families.
It is important to note that we had some difficulty finding family members and former detainees who would
speak openly even in the most general of terms. This fear and unwillingness to go public is indicative of a
greater anxiety that affects immigrant communities, especially those that are singled out by the government or
by society at large.
It is the DWG’s hope that this report will raise awareness of these problems and begin to generate discussion
as what can be done at the legislative level to address some of these serious issues.

About the Data Analyzed in This Report

T

he data analysis in this report was generated primarily from information that court observers were able to
glean from watching the immigration hearings known as “master calendar hearings” (a master calendar
hearing generally is a detainee’s first appearance in court during which the charges against the detainee
are presented). Some information came from interviews with detainees and their family members as well as
from discussions with representatives of organizations that serve immigrant communities. Since the summer
of 2003, we’ve observed 716 hearings representing 502 different detainees (some detainees had multiple
hearings). We also interviewed five former detainees and 15 members of detainees’ families.
At the start of each hearing, the judge states a few particulars about the case: the detainee’s alien number,
his/her name (although it is not spelled out), the names of the attorneys on both sides and the judge’s name.
The judge does not routinely state many other details such as a detainee’s country of origin or immigration
status, his/her criminal record (if any), the detainee’s length of detention or any mental health issues. Because
observers were able to ascertain these details only if they arose during the course of the hearing, our data in
these areas cannot be comprehensive for all of the cases we observed.
Furthermore, detainee cases often are continued over the course of many weeks, making it difficult for the
DWG to track cases to final status. The DWG relies heavily on law students for court observation, and class
schedules and other obligations make consistent court coverage difficult from week to week.
Finally, the DWG only observed master calendar proceedings, so any detainee’s case that was taken off the
master calendar and set for an individual calendar was no longer observed.

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Introduction
About the DWG’s Detainee Database

E

ach detainee is represented by a case record in our database. The case record contains information
that does not change from hearing to hearing, such as the name, alien number, place of detention,
country of origin, gender, age, date of arrival in the United States, date of detention and place where
the detainee was apprehended. The hearing record contains all information gleaned from a session such
as grounds for deportation, criminal record, troubles with lawyers or interpreters, family presence and mental
illness issues.
One difficulty with the database is our inability to always accurately identify each detainee. Other immigration
courts in the Northeast (Hartford, New York) post the master calendar of hearings every day, and this calendar
includes each detainee’s country of origin, alien number and full name. But the Boston immigration court posts
only its individual calendar (which shows the schedule of hearings concerning detainees with legal claims
for remaining in the United States, such as political asylum or change in immigration status). The Boston
immigration court has refused without explanation to post its master calendar despite multiple requests by the
DWG. This has made the work of the DWG much more difficult. Although the judge reads the alien numbers
before each hearing, the number has eight digits, and it is often impossible to hear all the digits, especially
when the number is read quickly and in a low voice (as it most often is). Furthermore, the spelling of the
detainees’ names is virtually impossible to guess. Without a reliable name or alien number to identify each
detainee in the database, there is a risk of creating multiple case records for the same detainee. An exhaustive
search was done to remove duplicates, but a few duplicates may remain nonetheless.
To our knowledge, no similar observation project exists, so the DWG developed the observation, data
collection and data processing methods from scratch. When we began observing cases in 2003, we did not yet
have a developed sense of what information was relevant, nor did the forms filled out by observers necessarily
ask the right questions. At the outset, the form did not ask about mental health issues, presence of family
and current immigration status. The DWG also had not yet developed the necessary standards for data entry,
such as how to enter the grounds for deportation information in a way that would make it possible to discover
all cases of a certain type (such as all those who were being deported due to criminal charges). For these
reasons, data collected within the last six months has been more complete than the data collected during the
early part of the project. The database itself, having been developed from the ground up, experienced some
growing pains related to malformed data, and much work was done to check the records and correlate the data
to the written forms.

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Immigration Detention Policies
Who are we talking about?
U.S. immigration law classifies all people within the United States in two broad categories: nationals and
aliens. In general, this means you are either a citizen or a non-citizen. Non-citizens generally come to the
country as immigrants or on temporary visas (this includes tourists). This report focuses on both kinds
of non-citizens who find themselves in removal proceedings in immigration court.

What is a removal proceeding?
Immigration removal proceedings take place in immigration court in front of an immigration judge, who is part
of the Department of Justice. A non-citizen can enter removal proceedings in two ways:
• If a non-citizen is found inadmissible to the United States upon arrival, s/he will be placed in removal
proceedings.
• If a non-citizen already in the United States violates the conditions of his/her status, s/he can be ordered
removed. The vast majority of detainee hearings we observed fell into this category.
Immigration removal proceedings start with a “notice to appear,” which lists the charges the government is
alleging against the non-citizen. These charges can include immigration offenses and/or criminal
offenses.
Legal permanent residents who have established new lives in the United States can be subject to removal
for minor and serious crimes alike. Immigration offenses include but are not limited to illegal entry;
transporting, smuggling or harboring non-citizens who are in the United States unlawfully; committing fraud;
committing marriage fraud; overstaying a temporary visa; or working without authorization.
When a U.S. citizen is convicted of a crime, s/he serves a criminal sentence. Non-citizens are subject to the
same criminal proceedings but in addition may face
immigration consequences and be put through
Detention Centers Where
removal proceedings.

Who ends up in detention?
Mothers, fathers, children and refugees fleeing
persecution can all end up in immigration detention.
Any non-citizen who is found inadmissible at a
border or a port of entry can be subject to removal
proceedings. Similarly, any non-citizens – lawful
permanent residents (green card holders),
temporary visa holders, people who
overstay their visas or undocumented
immigrants – can be ordered detained if found in
violation of immigration law.

Where are they detained?
Immigration and Customs Enforcement (ICE) places
immigrant detainees in security processing centers,
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Detention Working Group, Massachusetts Chapter of the National Lawyers Guild

Boston Immigration Court
Can Order Detainees Held
Boston, Massachusetts
Greenfield, Massachusetts
Dedham, Massachusetts
North Dartmouth, Massachusetts
Plymouth, Massachusetts
Brentwood, New Hampshire
Goffstown, New Hampshire
Dover, New Hampshire
Central Falls, Rhode Island
Newton, Connecticut
Hartford, Connecticut
Somers, Connecticut
Niantic, Connecticut

8

Immigration Detention Policies
Department of Homeland Security (DHS) detention facilities, state and local government jails, and Bureau of
Prisons institutions. Since jail policies often are written to treat all detainees in the same way, non-criminal
immigration detainees can end up sharing quarters with convicted criminals and are treated in the same
manner as those in jail for violent crimes. Because of the tendency to split up members of the opposite sex in
jailhouses, immigrant families can be separated and often have little to no means of communication with one
another throughout the removal process.

What happens to detainees in immigration proceedings?
Non-citizens in immigration proceedings do not have the right to a free court-appointed lawyer. Obtaining
counsel for removal hearings is not easy, especially for non-citizens with few financial resources. While free
and low-cost legal service providers are available, the supply does not come close to meeting the demand.
Forty-two percent (42%) of non-citizens in immigration court represent themselves (pro se) and argue their
cases against a lawyer from the Department of Homeland Security.
All non-citizens who are put in removal proceedings because they were found inadmissible at the border are
automatically placed in detention. Non-citizens who already are in the United States are not always put in
detention. Once in detention, certain detainees are eligible for bond. Before granting bond, the immigration
judge considers whether the non-citizen is a risk to the community or a flight risk.

What is the Immigration and Nationality Act (INA)?
Initially created in 1952, the INA is a compilation of all the statutes and regulations that pertain to all noncitizens. The act has been amended numerous times since its original enactment; it remains the principal body
of immigration law.

What other laws are applicable to detainees?
Currently two federal statutes (passed in 1996) govern the majority of detention and deportation cases. These
statutes, the Anti-terrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRIRA), were enacted during an era of increased anti-immigrant
sentiment. These two acts formed a procedure of “expedited removal.” Any immigration inspector at the border
or port of entry who determines a non-citizen inadmissible due to fraud or on documentary grounds will place
the non-citizen in mandatory detention and begin the process of expedited removal. Since the passage of the
IIRIRA and AEDPA, mandatory detention of non-citizens has increased from approximately 6,800 detainees
under the control of the Immigration and Naturalization Service (INS) in 1994 to approximately 22,800 under
the control of the Department of Homeland Security in 2004.1

How does the USA Patriot Act affect detainees?
After September 11, 2001, a section of the Immigration and Nationality Act was amended by the USA Patriot
Act to include a provision that gives the government authority to detain without a formal charge any non-citizen
who has been deemed a terrorist suspect. Additionally, under Section 412, the act created new procedures
for indefinite detention of immigrants. The act also expanded the definition of terrorism, giving the government
further discretion to detain non-citizens who satisfy the broadly defined term and allowing for secret
proceedings. Civil liberties groups argue that these provisions violate the Constitution.

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Immigration Detention Policies
What about case law?
Individuals and civil liberties groups have challenged these restrictive policies as unconstitutional, though
few have been successful when the cases reached the U.S. Supreme Court. In 2003, the Supreme Court
upheld the 1996 acts as constitutional in Demore v. Kim. The court addressed the plaintiff’s concerns about
allowing legal immigrants to be detained while awaiting deportation proceedings, specifically in cases in which
the government would be “substantially unlikely to prevail.” The court held that, pursuant to the INA, a legal
permanent resident could be held without an individual bond hearing.
However, in regards to indefinite detention, two significant cases have come before the Supreme Court that
extended the rights of detainees. Zadvydas v. Davis (2001) held that, during removal proceedings, the INA
does not authorize indefinite detention for non-citizens who cannot be repatriated to their home countries.
This was based on the non-citizen’s due process rights under the 5th Amendment. More recently, in Clark v.
Martinez (2005), a Cuban national challenged his indefinite detention as an inadmissible non-citizen who had
attempted to enter the United States. The court found that the holding of Zadvydas also applied to inadmissible
non-citizens.

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Countries of Origin

T

hrough court observations, the DWG captured country of origin information for 68% of cases observed
(341 cases). The 20 most-represented countries account for 83% of these case records. The countries
most often represented were the Dominican Republic (19%) and Brazil (12%). Although the number of
people detained from each country roughly reflects the percentage of immigrants in Massachusetts and New
England from that country, some countries are over- or under-represented. For instance, although only 6% of
the foreign-born population in Massachusetts comes from the Dominican Republic, Dominicans account for
19% of the cases. The next most over-represented countries are Brazil, Guatemala and Mexico. Portugal, in
contrast, represents 9% of the Massachusetts foreign born but only 3% of cases.
The treatment of detainees from countries of political instability or repression raises multiple concerns. One

Rate of Detainees Facing Deportation Versus
Rate of Immigrants Residing in Massachusetts
20%

percentage
of detainees
in deportation
hearing

18%
16%

percentage
of immigrants
residing in
Massachusetts

14%
12%
10%
8%
6%
4%

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Countries of Origin
Cuban-born man was ordered deported for a past conviction of obtaining money under a false pretense, a
conviction for which he had received a one-year suspended sentence (Cubans ordered removed could not
return to Cuba because the country does not accept deportees). A Somalian faced removal hearings in June
2004 (when the country was devastated by widespread violence and tidal waves), and at least one Haitian was
deported after the bloody ouster of Haiti’s ex-president Aristide. That removal order was given seven months
after the apparent coup, at a time when violence was still rife in Haiti.
Among detained immigrants who had no criminal record, men from Special Registration countries were
disproportionately represented in the court. They were most often from Morocco or Pakistan. One immigrant
we interviewed reported many instances of discriminatory treatment toward Muslims, who were verbally
abused at the time of arrest and during detention (“terrorists,” “fucking cheap Arabs” and “criminals” were
among the epithets used). Muslims were refused the Koran while Bibles were available in many languages,
and it took days to obtain a kosher diet.
Young Central Americans, mostly from Guatemala and who had tattoos, also were treated differently. They
were systematically accused of belonging to MS13, a gang that has been associated with violent crime in the
Greater Boston area. With this label pinned onto them, they were less likely to be granted bond because they
were seen as being a threat to the community.

Conclusion
The majority of immigrant detainees came from five countries: Dominican Republic, Brazil Haiti, Guatemala
and Mexico. All five of these countries also were over-represented in the immigration court; the percentage
of detained people from these countries did not reflect the percentage of immigrants from the respective
countries in Massachusetts. Country of origin also played an important role in the treatment detainees received
in detention centers. Arabs and Muslims encounter much harsher treatment from both non-Arab/non-Muslim
detainees and from prison guards.

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Length of Detention & Time in U.S.
Detention Length

W

hen available, observers recorded each respondent’s initial date of detention. Unfortunately, a
detainee’s original detention date is infrequently mentioned in the course of a hearing, so less than
10% of the total cases provided the actual date when the detainee was first detained. However,
a few cases stand out and are compelling. One respondent was in detention almost 3.5 years for multiple
criminal charges before he received his first hearing. At that hearing, the immigration judge deported him to El
Salvador. He was not represented by an attorney.
Another respondent was in detention almost 2.5 years before he was released on bond even though he had a
pending asylum application; he was from the Kurdish minority in Syria. He was originally detained for simple
assault, working illegally and overstaying his visa.

Length of Stay
in the United States
50
45
40

number of detainees

35
30

Time in the United
States

W

hen available, observers
recorded each respondent’s
initial date of entry into the United
States. We then calculated how long a
respondent has been present in the United
States by counting the number of days
from his/her initial date of entry to the last
hearing date recorded in our database.
Many detainees had been in the United
States for many years, often working and
living their lives without incident before they
were placed in detention.
We were only able to record the initial
date of entry into the United States for
approximately one-third of the total cases
(166 out of 502). The length of time
respondents spent in the United States
ranged from 24 days to 35.5 years; the
average was just over 10 years.

25
20
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Detention Working Group, Massachusetts Chapter of the National Lawyers Guild

As in much of the data we recorded,
sad and compelling cases were evident,
particularly given the minor crimes
involved. One respondent arrived in the
United States at the age of 10 in 1969.
She lived in the United States for 35 years
and had children who are U.S. citizens.
Unfortunately she had problems with
gambling, was convicted of larceny over
$250 and received a two-year sentence.

13

Length of Detention & Time in U.S.
The length of
time respondents
spent in the United
States ranged from
24 days to 35.5
years; the average
was just over 10
years.

She was ordered deported to her native Portugal, even though she
had no family remaining there. Another respondent arrived in the
United States as a refugee in 1980 from Cuba. She was convicted
of obtaining money under false pretenses. She was ordered
deported to Cuba, the country from which she fled as a refugee 25
years earlier. Because Cuba does not accept U.S. deportees, it is
unclear how long she will continue to remain in detention.

Conclusion

Though compiling data on length of detention and length of time
in the United States was difficult for court observers, it is apparent
from the data that observers were able to gather that detainees
experience significant problems in both areas. Detainees are
sometimes held in detention for significant lengths of time before final resolution of their cases. Also, many
detainees have lived in the United States for a decade or more, some even living here as long as a generation.
They have grown up, worked, had families and ultimately contributed to the United States as much as other
people, yet their non-citizen status has kept many of the law’s protections out of their grasp.

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Legal Representation

A

ccording to the Immigration and Nationality Act of 1996 (in particular, 8 U.S.C.A. § 1362), immigrants
in deportation proceedings have the right to legal representation by attorneys who are authorized to
practice in such proceedings. However, this right comes with a critical caveat: Detainees must hire their
own attorneys at their own expense. While the court refers detainees who cannot afford an attorney to legal
services organizations that offer assistance at free or reduced rates, these organizations do not have the
resources to be able to guarantee representation.

Legal Representation
of Detainees

58%

represented
by an
attorney

42%

pro se

(211 cases)

(291 cases)

What are the effects of not being able to afford
an attorney? Immigration is a complicated area of
law. The relief available to people in deportation
proceedings is limited and can be difficult to
understand. Language can form a significant
barrier for those who try to navigate the world
of immigration paperwork on their own. As a
result, detainees in these proceedings may be
seriously disadvantaged while facing such grim
consequences as permanent separation from
family members and forcible return to politically
unstable home countries.
To assess issues in detainees’ access to and
possession of legal representation, this report
used the most recent hearing record for each
detainee in order to determine his/her represented
status. If a detainee had been able to retain
an attorney despite having appeared pro se
(representing him/herself) in the past, the report
considered that detainee to be represented.
Conversely, if the detainee had been represented
in the past but now was forced to appear pro se,
the report considered him/her to be pro se.

Out of a total of 502 cases observed, nearly half of all detainee cases (42%, or 211 cases) had no legal
representation. Some detainees reported that they lacked the money to pay for counsel; others simply
repeated that they “just wanted to be deported” as quickly as possible. Whether this was because of the
economic, psychological or physical hardships of being in a detention facility was not always clear. Two
detainees emphasized that their families in Mexico were dependent on them to provide economic support, so
they preferred to be sent home quickly rather than postpone the hearing until they had retained lawyers.
Financial hardship unsurprisingly was reported as a barrier to those seeking representation but was documented
in only seven cases, owing again to the difficulty of collecting this information. The cases in which this issue was
observed included a detainee who could only afford a lawyer for the bond hearing and a detainee who was no
longer able to afford an attorney’s services. In one case the detainee was unable to retain a lawyer because his
wife was unable to withdraw the funds needed on the day of the hearing. A few detainees indicated that they
could not afford the retainer fees that some lawyers required up front (up to $4,000 in one case). An Iraqi male
detained for over three years also had been unable to retain a lawyer, forcing his case to come to a standstill.
Even with organizational intervention in a pro bono capacity, the drafting of a habeas corpus to move his case
forward proved challenging due to the scarcity of resources and manpower. As a result, he remains in detention
indefinitely. Additionally, family members of some detainees told us about problems they encountered with
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Legal Representation
immigration lawyers who requested large amounts of money for cases in which there was no legal remedy. One
interviewee, whose Moroccan husband has been detained since February 2005, said that her family paid almost
$20,000 to a lawyer even though the lawyer knew
detention and deportation were unavoidable for her
husband.
Detainees who sat before the judge pro se often
were unclear about the legal process and unaware
of the relief available to them under current
immigration laws. A startling example of this was
a case in which the judge told a detainee that he
was possibly eligible for a specific type of relief.
Unfortunately, the detainee did not have an attorney
or even any family to help him fill out the necessary
paperwork. As a result, the judge had to ask a prison
guard to help the detainee with the application.

Reported Problems
With Attorneys
23%

problems
with attorney
(68 cases)

Of the 291 cases in which detainees were able
77%
no reported problems
to retain legal representation, 23% of them either
with attorney
reported or were observed having trouble with their
(223 cases)
lawyers (68 cases). Nearly half of the problems
recorded involved “no-shows” of the lawyers (29
cases). Four detainees reported that their lawyers
consistently had not appeared in court on two or
three occasions. One detainee’s family paid his
lawyer $2,000 up front, after which they never saw
the lawyer again. Another attorney apparently “refused” to show up and failed to forward some of his client’s
documents to the newly retained lawyer. This issue was also brought up in the interviews we conducted:
The mother of a young Moroccan paid a lawyer $2,000 up front and never saw a penny of it – her son was
deported before the lawyer even reviewed the case.
Court observers also noticed that some lawyers seemed incompetent (13 cases). Generally, these lawyers
were late, disorganized, inexperienced or had communication breakdowns with their clients. On one occasion,
a judge was observed giving a lawyer advice on how to plead the case.
Our records show nine cases in which a detainee wanted a lawyer but was unable to secure one. This low
number is more likely reflective of the difficulty of obtaining information about lawyers. Nonetheless, one of the
documented cases involved a detainee whose case was continued for two months because he was unable
to find a lawyer. He was detained for that period of time. A Vietnamese detainee we interviewed was detained
in Oakdale, Louisiana, while his family and friends lived in the Boston area. That made the task of retaining a
lawyer more challenging.

Conclusion
Lack of legal representation is one of the most significant problems with the immigration system and is
particularly egregious when combined with situations such as mental illness. Individuals charged in criminal
cases are provided with free representation because they face a deprivation of liberty, yet immigration
detainees faced with the same deprivation are not provided with similar representation.
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Translation Services & Court Technology

L

anguage interpretation is a major component of a non-English speaking detainee’s court case, and the
detained immigrant has an absolute right to adequate translation.2 But this absolute right is only part of
the right to present evidence and cross-examine witnesses – there is no per se right to simultaneous
interpretation of the entire proceedings.3 This means many immigrant detainees do not know all of what is
being said in court because they do not get the entire proceeding translated for them during that court date.
The complexities of immigration law can make an immigration court case difficult for a native English speaker
to follow; without proper translation, the non-English speaking detainee is lost, left out or easily confused in a
court proceeding, with serious and possibly life-changing consequences.
Because of budget cuts, detainees do not always have the opportunity to be present in court and instead can
be “present” via two-way televideo sessions (or by telephone in rare cases). In the televideo sessions, the
detainee sits in front of a video camera in a specified room in the detention facility; this image appears on a
television screen in the courtroom. Both the court and the detainee have microphones and speakers. But the
technology does not always work well. Sometimes the judge cannot hear the detainee or vice versa. At other
times, a detainee might have to stand 10 feet away from his/her microphone so that his/her voice does not
scream into the courtroom.
When language interpretation is needed, the interpreter is not always present in the courtroom. Sometimes
the court makes use of a telephonic interpretation service, at which point the interpretation comes through
speakerphone. We have observed detainees who often appeared uncomfortable asking interpreters to repeat
something. In some sessions it appeared as if the detainee simply could not hear the interpreter due to
technology issues.

Frequency of Use of Televideo and Interpreters
Hearings Conducted
Via Televideo

52%

via
televideo
(375 of 716
hearings)

48%

in person
(341 of 716
hearings)

The majority of hearings (52%, 375 out of
716 hearings) were conducted via a televideo
connection. In these cases the detainee was
in a detention facility while his/her attorney, the
prosecutor, the judge and any witnesses were in
a courtroom miles away (on a few rare occasions
the detainee’s lawyer was present at the detention
facility). There were frequent technical difficulties
with the televideo equipment: Often there was a
visual time delay (the picture “froze”), and/or the
voice of the detainee was difficult to hear. This is of
particular concern in hearings that are translated.
Out of the 502 cases in our database, 193 cases
involved interpreters who appeared either live (163
cases) or telephonically (30 cases) for at least one
of the detainee’s hearings. This accounts for 40%
of total cases for which data was collected (see
chart on page 18).
The majority of cases in which interpretation was
needed (59%, or 113 cases) were conducted via
televideo. Moreover, 65% of all detainees who

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Translation Services & Court Technology

Telephonic Interpreters &
Televideo Detainees

16

100

40

(30 of 193 cases)

interpreter in
courtroom
14

80
60

telephonic
interpreter

20

(163 of 193 cases)

66 cases

Problematic
Trends and
Sample Cases

120

97 cases

The most-interpreted language, both
in person and via speakerphone, was
Spanish, which accounted for 43% of
all interpreted cases. The next most
widely interpreted language was
Portuguese, which accounted for 15%
of all interpreted cases. Languages
only available using a telephonic
interpreter include Albanian, Somali
and Vietnamese.

Interpreted Cases Combined With
Use of Court Technologies

number of cases

required interpretation represented
themselves pro se (126 cases).

0

detainee on
detainee in
There was a high potential for difficulty
televideo
courtroom
when there was a telephonic interpreter
(59%
or
(41% or
and a detainee appearing via televideo.
113 of 193 cases)
80 of 193 cases)
A newly arrived alien from China filing
for asylum was in tears when she
appeared via televideo and struggled
to listen to her telephonic interpreter. An Albanian woman who had been detained at Logan Airport and who
was applying for asylum and protection under the Convention Against Torture was visibly nervous, distraught
and in tears when she appeared via televideo and tried to listen to her telephonic interpreter. Both women
had a difficult time understanding the proceedings and listening to their telephonic interpreters over televideo.
Additionally, most detainees who appeared via televideo with telephonic interpreters also appeared pro se
and did not have an attorney to help facilitate the situation. In the 16 cases recorded, only five detainees had
attorneys.

Telephonic Interpreters & Live Detainees
Problems arose simply with the telephonic interpreter service used by the court. When a Haitian detainee
appeared pro se, the court called the telephonic interpreter service to request a Haitian-Creole speaking
interpreter. The service put the judge on hold, and then he was suddenly disconnected. The court called back
repeatedly but could not get through. The judge was forced to reschedule this detainee’s case for later that
day. At another hearing, the court was supposed to arrange for a French-speaking telephonic interpreter. The
judge had problems getting the telephonic system to work, so this detainee’s hearing also was postponed for
later that day.

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Translation Services & Court Technology
Live Interpreters & Televideo Detainees
In interpreted cases,
there are four possible
scenarios:
• The detainee and
interpreter are both
present in the courtroom.
• The detainee is present
in the courtroom
and interpreter’s
voice is present via
speakerphone in the
courtroom.
• The interpreter is present
in the courtroom but
the detainee appears
on television screen
via televideo from the
detention facility.
• The interpreter’s
voice is present via
speakerphone in the
courtroom and the
detainee appears via
televideo from the
detention facility.

Cases sometimes had to be continued because an interpreter who
spoke the detainee’s language was not available. One judge had to
continue the first hearing of an Arabic-speaking detainee from Egypt
because there was no Arabic interpreter available in the court. The
detainee had to wait another week in a detention facility due to the
lack of an interpreter.

Live Interpreters & Live Detainees
Troubling issues most often arose with live interpreters and live
detainees when an interpreter who was supposed to be present
failed to show. Non-court-appointed interpreters sometimes filled in
to assist the detainees. In at least three cases, a detainee’s attorney
assisted with the interpretation. In other cases, our own court
observers fluent in a detainee’s language were asked by a judge
to help out with translation. Sometimes a friend or family member
of the detainee offered to help out. In at least one case in which a
friend interpreted, the friend did not understand or did not know the
appropriate legal terminology to interpret accurately. One detainee
was a native Portuguese speaker and the court had only a Spanish
interpreter present, so the judge had to continue the hearing for one
week to schedule the correct interpreter.

Conclusion

An interpreter is a necessary component of an immigration court
case for a non-English speaking detainee. Even if an interpreter
is present either in person or telephonically, many complications
can arise, especially if the detainee appears via televideo. Most
interpreters only translated questions asked to the detainee and did
not translate what was said to the detainee’s attorney, if there was
one, or what was discussed between the judge and the Department of Homeland Security attorney. Although
problematic, the courts have held that the lack of simultaneous interpretation of the entire proceeding does not
violate due process.
But the large number of non-live (televideo), translated hearings does raise questions of due process. If a
detainee does not have the opportunity to speak in person to an attorney, is unable to confront witnesses
in the same room and is trying to understand an interpreter through a distorted televideo connection, it is
questionable that the detainee has been given a fair hearing.
Lack of access to an interpreter in the detention centers also was a pervasive issue; translation most often was
provided by other detainees. One interviewee told us about a particularly dramatic situation in which an immigrant
from Guatemala was evaluated by a psychiatrist who did not speak Spanish. The detainee was banging his head
against his cell walls and was exhibiting other self-destructive behaviors. His cellmate was Syrian and only spoke
Arabic. The former detainee whom we interviewed, a Moroccan who spoke six languages, was asked to act as
an interpreter both for the distraught detainee and the cellmate who had observed his behavior.
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Communication Problems

O

ne issue tracked by observers was whether detainees were having difficulty communicating with their
families, attorneys or medical professionals. Difficulties associated with court proceedings that involved
televideo connections and/or interpreters are not included in this section.

In a small number of the hearings we observed, detainees reported troubles communicating with their families
(nine out of 716, or just over 1%). Though it is not a statistically large number, there are notable cases. The
trouble often was telephone related. A young Egyptian man was unable to contact his mother for 10 days while
he was detained. In two separate cases, detainees were unable to contact lawyers because the lawyers would
not accept collect calls. Collect calls are the most common method used by detainees to contact others while
in detention.
Others had difficulty receiving mail at detention facilities. This delayed their proceedings because the mail
contained paperwork important to their court cases. A man from Trinidad & Tobago who was married to a U.S.
citizen had trouble providing documents that a previous marriage had been annulled. He could not receive the
paperwork documenting the annulment from Trinidad & Tobago while he was detained. The judge expressed
disbelief that anyone would be unable to receive such important mail, but observations show that this has
occurred more than once. A detained Iraqi man stopped receiving mail from family members in Jordan with no
explanation. His mail often included money for supplies he needed to buy from the detention center. Without
this money, basic necessities were unobtainable.
Some families reported difficulties with the visitation policies at detention centers. The mother of a Moroccan
youth we interviewed experienced difficulty visiting her son. On two occasions she was given in writing the
day and time she could visit, only to be turned away when she came to visit. On another occasion she was
not allowed in the detention center because she declined to take off her head scarf (even though she offered
to submit to a full search by a female correction officer). The wife of another Moroccan detainee pointed out
the limited times of evening visitation (8 p.m. to 9 p.m.) at a facility with poor access by public transportation
(Central Falls, Rhode Island).
Another issue that was brought up was the prohibitive cost of international calls. Detainees were allowed to
use only the calling cards sold by the prison canteen, which had an inflated price. Other facilities allowed only
collect calls, which limited access to lawyers and family members.

Conclusion
The communication problems detainees had were rarely discussed in court, so observers were unable to
record the true reach of the issue. Though our reported number of cases was small, the problems – difficulty
making telephone calls, high cost of international calls, trouble receiving mail, short visiting hours and distant
location of detention facilities – were more widespread. A major concern that arose from these findings was
that communication problems contributed to people being forced to stay longer in detention centers because of
a lack of access to basic resources such as mail, telephones, family members and attorneys.

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Mental Health Issues

D

etainees with mental health issues represent some of the most vexing cases observed by the DWG.
Judges are not supposed to remove detainees who cannot comprehend the nature of the proceedings,
yet the judges lack the resources to appoint attorneys for these individuals to ensure their due process
rights. Unfortunately, the statutory protections for the mentally disabled are thin at best. For example, 8 U.S.C.
§ 1229a(b)(3) states only that “If it is impracticable by reason of an alien’s mental incompetency for the alien
to be present at the proceeding, the attorney general shall prescribe safeguards to protect the rights and
privileges of the alien.” There do not appear to be regulations that further explain how these safeguards are to
be implemented. Court observers witnessed proceedings in which a detainee with serious mental health issues
would appear before the court without representation, and the attorney for Homeland Security would argue that
the hearing could proceed because the judge could somehow “ensure that there were safeguards.” Judges
often expressed bewilderment as to what safeguards they could provide and steadfastly refused to deport an
alien who had no understanding of the nature or content of the proceeding.

Cases With Mental
Health Issues
5%

had mental
health issues
(20 cases)

95%

no reported
mental health
issues
(482 cases)

At the time of this report, cases in which mental
health issues arose in at least one of a detainee’s
hearings comprised slightly less than 5% of
the total observed cases (about 20 cases). Of
the mental health cases, roughly 35% of those
detainees represented themselves at their hearings
(see chart on page 22); 20% involved debates over
the competency of the detainee, and in 10% of
the cases, the detainee had been found mentally
incompetent by a prior court. Some cases involved
detainees who previously had been staying at
Bridgewater State Mental Hospital. One individual
in particular had only one charge on his criminal
record, that of threatening the president of the
United States. Several cases involved detainees
with schizophrenia or paranoia, and in one case a
detainee complained of not having regular access
to his mental health medications for over six
months.

In one particularly alarming case, a man from Cape
Verde was brought before the court; he suffered
from psychiatric problems and also from full-blown
AIDS. The government sought to transfer the
detainee to the Columbia Care facility in South
Carolina, but a doctor from Physicians for Human Rights appeared before the court and asked to conduct a
competency hearing in Boston. The government argued that the detainee had to be transferred because the
Shattuck Shelter lacked enough beds to house the detainee. The court ordered the detainee to be physically
present the next week so that he could be scheduled for examination. The next week, the doctor appeared in
court to schedule the exam, but the government informed the judge that the detainee had been transferred to
South Carolina during the past week. The doctor informed the court that she had spoken with Shattuck and
that there was no shortage of beds for the detainee, and the judge angrily inquired why the detainee had been
transferred despite a court order. The attorney for Homeland Security stated it was not his decision, at which
point there was a lengthy off-the-record conversation out of court between the judge and the attorney. Upon
returning, the judge informed the doctor that the detainee would be examined in South Carolina, but the doctor
expressed concern that an examination there would be inadequate.
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Mental Health Issues
In another mental health case, a detainee had
been transferred from a prison (where he had been
waiting for a criminal trial) to a psychiatric unit
when it was discovered that he was mentally ill,
and a Texas criminal court subsequently found him
incompetent to stand trial. He thus had no criminal
record and appeared pro se in immigration court.
The Homeland Security attorney pointed out that,
unlike a criminal trial setting, there are no specific
standards for competency in immigration court, and
so the immigration judge was free to ignore the
prior incompetency finding. The Homeland Security
attorney also argued that the court could appoint
a guardian or attorney for the detainee. The judge
expressed skepticism at this, as the detainee had
no visible family and the court lacked resources to
hire an attorney for the detainee. The judge then
attempted to question the detainee, who was nonresponsive to all questions. At this point, the judge
questioned why Homeland Security had placed this
man in proceedings when he clearly was unable
to comprehend the nature of the proceedings. The
case was continued for a week, at which point the
government sought to transfer the detainee out of
the court’s jurisdiction and into the Columbia Care
facility in South Carolina.

Cases with Mental
Health Issues and
Legal Representation

35%

65%

pro se
(7 cases)

represented
by attorney
(13 cases)

Another area of concern is the fate of detainees who have been victims of torture and other violent or traumatic
events in their countries of origin and who are seeking asylum in the United States. Many of them suffer from
post-traumatic stress disorder (PTSD) and are at risk for suicide and other self-destructive behavior. Mental
health services available at the detention facilities are not equipped to deal with their situations. In one case,
an Iraqi man, who has been detained since 2002, claimed to not receive adequate care or attention for his
PTSD, anxiety and depression.

Conclusion
The treatment of mentally impaired detainees is one of the most troubling aspects of the immigration system.
While we have observed that judges in Boston do their best to ensure that such people receive a fair hearing,
the judges are not provided with any dedicated resources (such as the power to appoint an attorney) or
particular legal guidance (such as specific guidelines for ensuring adequate protection of the detainees’ rights)
that would help the situation.

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Reasons for Deportation

T

he reasons for deportation are many and varied. This report focuses on how the reasons for deportation
have affected the following five categories of detainees: lawful permanent residents (green card holders),
refugees and asylees, visa holders with valid immigration status, visa overstays and detainees with nonviolent crime issues.
This report defines drug possession, distribution and trafficking as non-violent crimes, as well as more obvious
non-violent crimes such as shoplifting. Violent crimes include assault and battery, rape, armed burglary,
attempted murder and murder.

Problematic Trends and Sample Cases
Lawful Permanent Residents (LPR)
Out of 502 total detainee cases, 17.5% were lawful permanent residents (88 cases). All had been convicted for
either a non-violent crime or violent crime. Most of the LPRs observed by the DWG were longtime residents of
the United States and often had a spouse and children who were U.S. citizens. At least one of these detainees
was released on his or her personal recognizance.
According to immigration law, an alien or LPR is deportable if at any time after admission into the United States
s/he is convicted of two crimes involving moral turpitude. The crimes cannot arise out of a single scheme of
criminal misconduct.4 In determining a crime of moral turpitude, it is neither “the seriousness of the offense
nor the severity of the sentence imposed,”5 but the crime must be one that is per se morally reprehensible and
intrinsically wrong.6 Crimes of moral turpitude can include relatively minor non-violent crimes such as fraud,
larceny, theft, illegal use of credit cards and trespassing, among others. An alien or LPR also is deportable if
within five years of admission s/he is convicted of one crime involving moral turpitude for which a sentence of
one year or longer may be imposed.7
The DWG witnessed cases in which detainees were removed by combining their minor, non-violent crimes of
moral turpitude. One LPR from Ghana with a shoplifting conviction and a driving without a license conviction
was ordered deported. There also were some cases in which detainees with minor non-violent convictions
were deported even though they suffered from serious health conditions that made it dangerous for them
to return to their home countries. One detainee was deported to Cape Verde due to crimes of larceny and
shoplifting, despite having paranoia, hearing voices and being afraid to return to Cape Verde because of his
health. Another detained LPR with serious medical problems had been in the United States since 1968 and
was ordered deported to Cuba based on one drug conviction. Because Cuba does not accept deportees,
the judge recognized that he probably would wind up back in detention and in legal limbo. Yet another LPR
detainee with a single drug conviction had renal failure that led to dialysis. He had been in the United States
since 1976 and wanted to apply for Convention Against Torture relief because he feared returning to Haiti with
his medical conditions.

Refugees and Asylees
There were only six known refugees and asylees out of 502 cases, which accounted for just over 1% of the
cases. These are important cases because the detainee by definition has a fear of returning to his/her home
country because of persecution; many refugees have long severed ties to their home country. All refugee
detainees in our database had relatively minor non-violent crime convictions. One refugee from Laos came to
the United States in 1988. He was now in his early 20s, had two shoplifting convictions and faced deportation
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Reasons for Deportation
to a country he barely knew. The judge continued his case to give him more time to find and consult with an
attorney. Another refugee had a larceny conviction and faced deportation to Cambodia, which he had left as a
young child. A refugee from Cuba who had been the United States since 1980 had a conviction for obtaining
money under false pretense and was ordered removed.

Visa Holders With Valid Immigration Status
There were only five known cases in which detainees were holders of valid visas. This accounted for less
than 1% of the cases. In one case, a detainee had a petty shoplifting conviction but was the managing chef of
a restaurant, married to a U.S. citizen and had two children who were U.S. citizens. His case was continued
because the Department of Homeland Security claimed not to receive a change-of-status filing that had been
sent by his wife. A woman from Haiti who robbed a bank due to her drug addiction was convicted of armed
robbery and ordered deported. However, she had been in the United States since 1988 and had no ties in
Haiti. She applied for deportation relief under the Convention Against Torture.

Visa Overstays
There were 35 known cases in which detainees had only a visa overstay on their records; these detainees had
absolutely no criminal convictions. Of these 35 cases, four planned to file or had filed asylum applications and
eight had accepted voluntary departure orders.
A few visa overstay cases involved post-9/11 Special Registration and the Joint-Terrorist Task Forces. In two
cases, the immigrants failed to appear for Special Registration. One was a Moroccan man who had entered
the United States on a student visa in 2000 but did not stay in valid student status because he did not attend
college from June 2003 to April 2004. Another case involved an Egyptian man whose visa overstay was
discovered through a routine traffic stop. In a different case, a Joint-Terrorist Task Force picked up a Pakistani
man who had overstayed his visa. The Department of Homeland Security attorney admitted he had no
information that the detainee had terrorist connections.
Also relevant to visa overstays are the raids conducted by Immigration and Customs Enforcement (ICE)
and other public and private enforcement units. Out of the 35 known cases with only a visa overstay, two
immigrants were detained after raids on their homes; two others were detained as part of a driver’s license
sting. One immigrant apprehended at his home was a Moroccan man who overstayed his student visa. The
FBI was looking for somebody else in his apartment but checked the immigration papers of all people present
in the apartment. He had entered the country as a student in 2002 but had married a U.S. citizen and had an
adjustment of status petition pending. A 25-year-old Brazilian woman also was detained with her parents after
a raid of their home. They had entered the United States in 1996 and, at the time of the immigration court
hearing, she was an honor student studying nursing at a local community college. The immigration judge
granted $1,500 in bond for her.
Regarding the driver’s license sting, ICE focused on people who had recently received Maine licenses and had
converted them to Massachusetts licenses, likely because Maine licenses were easier to obtain without valid
immigration documents. The two immigrants who had been detained as part of this driver’s license sting were
both Brazilians without criminal records, and the judge ordered them deported. The observers of these two
cases did not note that either had tried to use the driver’s licenses to obtain immigration benefits. Yet they were
not even offered the relief of voluntary departure.

All Detainees With Non-Violent Crime Issues
It was difficult to calculate exactly how many of the 502 cases on record involved non-violent crime convictions
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Reasons for Deportation
because some of the records simply stated “criminal conviction” as the grounds for deportation. However, a
conservative estimate is that the majority of cases involved some sort of non-violent crime conviction because
violent crime convictions are usually treated by court in a serious manner, which would be easy to note by
a court observer. Most of the non-violent crime
convictions related to drug possession, drug
distribution and drug trafficking. A young Cuban
LPR spent six months in detention and received
deportation orders for pleading guilty to marijuana
Special Registration Countries
possession charges in 2000. Other non-violent
crime convictions covered a spectrum ranging from
petty larceny, destruction of property, shoplifting,
receiving stolen property, resisting arrest, bank
24%
fraud, obtaining money under a false pretense and
use without authority. An American woman whose
unknown
(6 cases)
Colombian husband (a permanent resident since
48%
1990) has been in detention since November 2004
visa
told us that the ICE used a 1994 larceny conviction
overstays
(12 cases)
against her husband as a basis for the detention
and deportation proceedings (as a 15-year-old he
20%
had been found guilty of stealing his neighbor’s
non-violent
bike).

Reasons For Deportation

8%

violent
crimes

crimes

(5 cases)

Detainees From Special
Registration Countries

(2 cases)

Non-Special Registration
Countries
5%

visa
overstays
(23 cases)

Conclusion

34%

unknown
(160 cases)

42%

non-violent
crimes

19%

(205 cases)

violent
crime

(89 cases)

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The Detention Group witnessed 25 cases in
which the detainee hailed from a country subject
to Special Registration. In 13 of those cases the
detainee had no criminal record whatsoever. These
detainees were held for reasons such as visa
overstays and alleged marriage fraud. Of the three
cases in which there were criminal grounds, the
crimes were fairly minor (such as larceny).

Detention Working Group, Massachusetts Chapter of the National Lawyers Guild

Because so many cases were continued and the
case records did not often note the final disposition
of the detainee’s immigration case, it was difficult
to conclude trends in the data regarding what
ended up being the actual reasons for deportation
versus what were alleged deportation grounds.
Clearly there were criminal convictions alleged as
deportation grounds for the majority of detainees
in our database. But the non-violent convictions
presented challenging circumstances for lawful
permanent residents and refugees and asylees,

25

Reasons for Deportation
Special
Registration
Countries

who often faced leaving their longtime home and families,
who had serious medical issues and/or who faced returning to
countries where they were once persecuted. For the detainees
who had only overstayed their visas, some faced criminallike nighttime raids on their homes or workplaces by public
or private enforcement groups – even though they had been
convicted of no crime.

Afghanistan
Algeria
Bahrain
Bangladesh
Egypt
Eritrea
Indonesia
Iran
Iraq
Jordan
Kuwait
Lebanon
Libya
Morocco
North Korea
Oman
Pakistan
Qatar
Saudi Arabia
Somalia
Sudan
Syria
Tunisia
United Arab Emirates
Yemen
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Bond Issues

I

n deciding whether bond will be set for a
detainee, the court must determine if the
detainee is eligible. If the detainee has
committed an aggravated felony or, in some cases,
two or more smaller crimes of moral turpitude, then
the detainee is considered a mandatory detainee
and is ineligible for bond. If the person is not a
mandatory detainee, the decision to grant and
determine the amount of bond is based on the
judge’s evaluation of whether the detainee is a
significant flight risk or a danger to the community.
There were bond proceedings in 128 observed
cases; in 96 of those cases a decision was made.
Bond was denied in 40 cases and granted in 56
cases (including four detainees who were released
on their own recognizance). Crimes resulting
in denial of bond typically involved trafficking of
drugs, sex crimes, larceny over high amounts and
intimidation of witnesses.

Bonds Granted
Detainees Without
Legal Representation

38%

low bond
(less than
$5,000)

62%

high bond
($5,000 or
more)

The DWG found that bonds appeared to be set in a
fairly arbitrary manner, with some detainees facing
high bonds despite no criminal records and others
obtaining release on personal recognizance or low
bonds despite more serious crime convictions.

High Bond Cases
($5,000 or more)
We have observed 20 cases in which bonds were
set at $5,000 or more; one detainee had a bond set
at $20,000. These cases are noteworthy because
most of them did not appear to involve serious
and/or recent crimes. A $10,000 bond was given to a
detainee who had a 1989 driving under the influence
(DUI) conviction and a 1992 theft conviction. This
detainee was married, had two U.S. citizen children
and had recently bought a home in the Lawrence/
Methuen area, so he did not appear to be a flight
risk. Similarly, in January 2005, $10,000 bond
was set for a detainee with a 1989 conviction of
possession of cocaine and heroine and possession
of an illegal firearm. His only other criminal issue
mentioned was attachment of incorrect license
plates to a motor vehicle in 1996. The length of time
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Detention Working Group, Massachusetts Chapter of the National Lawyers Guild

Detainees With
Legal Representation

32%

68%

high bond
($5,000 or
more)

low bond
(less than
$5,000)

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Bond Issues
since his convictions suggests that he was not a danger to the community. Furthermore, his attorney submitted
letters from his family and from community members that suggested he was not a flight risk. There were two
cases in which bond was set at $5,000, one involving an altercation with a Massachusetts State Police officer.
High bond was set more often for detainees who represented themselves pro se. Sixty-two percent (62%) of
detainees who represented themselves pro se (five cases) received high bond compared to 32% of detainees
who were represented by an attorney.

Low Bond Cases (less than $5,000)
Contrasting these cases, four detainees were released on personal recognizance. One detainee was released
on personal recognizance despite a conviction of possession with intent to distribute a Class B substance,
suggesting the detainee might be a danger to the community; it is unknown how old the conviction was. Another
detainee was released on personal
recognizance despite charges for
resisting arrest as well as a recent
(1998) conviction for violating a
Detainees From Special Registration Countries
domestic violence restraining order.

Average Bond

vs. Detainees From Other Countries

In most cases in which bond was
granted, it was set between $1,500
and $5,000. These cases typically
involved visa overstays and illegal
entry. Minor crimes, such as driving
with suspended or expired licenses,
were sometimes involved in these
lower bond cases. The average
bond for all 56 cases was $3,826.
However, for detainees from Special
Registration countries, it was $4,666.

$5,000
detainees
from Special
Registration
countries

$4,500
$4,000

$1,500

$2,063

$2,000

$3,826

$2,500

$4,666

$3,000

$4,714

detainees
from other
countries

$3,500

$1,000
$500
$0

average
bond

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average
bond
for visa
violations

Detention Working Group, Massachusetts Chapter of the National Lawyers Guild

Bond and
Relationship
to Grounds for
Deportation
Simple Immigration
Violations
Of the cases in which bond fell
between $1,500 and $5,000,
there were 16 cases in which the
only grounds were visa overstays
or undocumented status. In at
least two cases the government

28

Bond Issues

The decision to grant
and determine bond is
based on the judge’s
evaluation of
• whether the detainee is
a significant flight risk
or

• whether the detainee
is a danger to the
community.

opposed bond completely and in another case argued for a higher
bond of $10,000. We also observed that detainees from Special
Registration countries received higher bonds for visa violations
than detainees from other countries. The average bond for visa
violations for detainees from Special Registration countries was
$4,714 compared to $2,063 for detainees from other countries.

Immigration Violations and Driver’s License
Crimes
There were five cases in which bond fell between $1,500 and
$5,000 and in which the grounds for deportation involved a visa
overstay combined with an expired, suspended or fake driver’s
license. The government appealed bond in one case.

Other Non-Violent Crimes

One case involved marriage fraud. That detainee was Pakistani
and also had been suspected of terrorism; the government’s lawyer
even admitted that those suspicions were unfounded. He received a
$10,000 bond. One case involved credit card fraud and larceny. The
detainee was denied bond because the government successfully
argued that his crimes were of moral turpitude. One case involved prostitution; that Chinese woman received
no bond. Four cases involved drug possession (but not intent to distribute). In three of these cases the
detainee received no bond. The fourth detainee received $20,000 bond.

High Bonds for Violent Crimes
Detainees with violent crime convictions such as assault and battery or domestic abuse usually received bonds
between $4,000 and $5,000.

Low Bonds for Violent Crimes
In contrast, a detainee charged with assault, two domestic assaults, intent to enter a building and drug
possession received a $1,500 bond. Another detainee received the same bond for theft, assault and battery
and drug convictions.

Government Appeal of Granting of Bond
A detainee in absentia was convicted of operating a motor vehicle without a license. Bond was set at $5,000,
but the government attorney asked that the detainee remain in custody while the government’s appeal was
pending. At that point the judge accused the government attorney of abuse of power, most likely because the
judge was convinced that the detainee was not a flight risk and did not pose any danger to the community.

Conclusion
Out of the cases in which bond was denied, most involved serious criminal offenses. But many detainees with
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29

Bond Issues
non-violent crimes and little evidence of being a danger or a flight risk faced stiff bonds and vigorous opposition
to bond by Homeland Security. Additionally, the impression of observers was that Homeland Security generally
opposed bond more vigorously in 2005 than it did in early 2004, arguing against bond even when the
detainee’s only offense was a visa overstay.

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30

Summary of Findings & Conclusions

B

etween July of 2003 and June of 2005, the Detention Working Group conducted a data-gathering study
on the Boston Immigration Court, its handling of detained cases and the impact immigrant detentions
have on families and communities. During the period of the study, the DWG observed 716 detained
hearings for 502 cases, interviewed five former detainees and 15 family members of detainees, and conducted
discussions about detentions with representatives of organizations in Boston that serve Arab, Muslim, Central
American, Asian, Cape Verdian and Brazilian communities.

Based on the data collected, the DWG concludes
• Almost half of immigrant detainees (40%) DO NOT have legal representation and are forced to represent
themselves against a Homeland Security lawyer.
• Thirty percent (30%) of detainees with mental health issues have NO legal representation and represented
themselves at the hearings.
• There are no real safeguards for mentally ill detainees to ensure proper treatment and adequate access to
the legal system.
• The majority (52%) of detainees’ court hearings are conducted via televideo system, which makes it difficult
for detainees to properly follow and fully understand court proceedings.
• Lack of court interpreters contributes to unnecessarily prolonged detentions.
• Most detainees were living in the United States for a long time before being placed in deportation
proceedings; detainees’ average length of stay in the United States prior to detention was 10 years.
• Bonds are set in an arbitrary manner. Even detainees with refugee status or valid visas faced high bonds and
deportation. The amount of bond did not correlate with the severity of prior charges and/or convictions.
• Detainees from 25 countries subjected to the Special Registration program were treated harsher by the
immigration authorities than individuals from other countries.
• Almost half (48%) of detainees subjected to the Special Registration program were detained and put into
deportation proceedings for overstaying their visas, compared to 5% of individuals from other countries.
• Only 12% of detainees subjected to the Special Registration program were charged with drug-related and
violent crimes, compared to 47% of detainees from other countries.
• Detainees subjected to the Special Registration program received higher bonds than detainees from other
countries; for simple immigration violations, detainees from Special Registration countries faced bonds that
were more than double what other detainees received for the same violations.

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31

Footnotes
This report’s title is a line from the poem “The New Colossus” by 19th century American poet Emma Lazarus.
The full poem appears on a plaque at the base of the Statue of Liberty: Give me your tired, your poor, / Your
huddled masses yearning to breathe free, / The wretched refuse of your teeming shore. / Send these, the
homeless, tempest-tossed, to me: / I lift my lamp beside the golden door.
1

Congressional Research Service, “Immigration Related Detention: Current Legislative Issues” April 28, 2004.

2

Augustin v. Sava, 735 F.2d 32 (2d Cir. 1984).

8 C.F.R. §240.5; Matter of Exilus, 18 I&N Dec. 276 (BIA 1982); El Rescate Legal Services, Inc. v. EOIR, 959
F.2d 742 (9th Cir. 1992) (on rehearing): Neither the INA nor the Constitution mandates simultaneous translation
and plaintiff’s facial challenge was rejected.
3

4

INA §237(a)(2)(A)(ii), 8 U.S.C. §1227 (a)(2)(A)(ii).

5

Matter of Serna, 20 I&N Dec. 579 (BIA 1992).

6

Ibid.

7

INA §237(a)(2)(A)(i), 8 U.S.C. §1227(a)(2)(A)(i).

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32