Written by Shoshi Leviton

Introduction

In September 2024, the Las Americas Immigrant Advocacy Center, the American Civil Liberties Union of New Mexico, and the Center for Constitutional Rights submitted a habeas corpus petition on behalf of four Venezuelan noncitizens detained at Otero Processing Center, an Immigration and Customs Enforcement (ICE) detention facility, for over six months after the United States ordered the individuals removed to Venezuela.¹Press Release, ACLU N.M., Stranded Venezuelan Migrants in Indefinite Det. in Otero Prison Seek Release, (Sept. 16, 2023), https://www.aclu-nm.org/en/press-releases/stranded-venezuelan-migrants-indefinite-detention-otero-prison-seek-release. ICE continues to detain these individuals because, in January 2024, Venezuelan President Nicolas Maduro stopped accepting deportation flights between the United States and Venezuela.²See Kejal Vyas & Santiago Pérez, Venezuela Halts Flights of Deported Migrants from U.S. and Mexico, The Wall Street Journal (Feb. 22, 2024, 4:06 PM), https://www.wsj.com/world/americas/venezuela-halts-flights-of-deported-migrants-from-u-s-and-mexico-962f6149 [hereinafter Vyas & Pérez] (explaining that Venezuela stopped all deportation flights from the United State to Venezuela). Venezuelan noncitizens in ICE custody are stuck in limbo.³ See id. (highlighting the inability for the United States to send Venezuelans back to Venezuela without deportation flights). The United States may not hold noncitizens indefinitely, but officials cannot legally send the noncitizens back to Venezuela without deportation flights.⁴ Id. These detentions likely meet the definition of “arbitrary” and therefore violate Article 9 of the International Covenant on Civil and Political Rights (ICCPR).⁵The International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].

International Law Regarding Arbitrary Detention

The ICCPR, a multilateral treaty that is part of the International Bill of Human Rights, requires countries to protect the civil and political rights of people in their respective countries.⁶Id. Such rights include freedom of speech, freedom of assembly, due process, and freedom from indefinite detention.⁷Id. Article 9 provides that everyone has the right to liberty, no one shall be subject to arbitrary detention, and “[n]o one shall be deprived of [their] liberty except on such grounds and in accordance with such procedures as established by law.”⁸Id., art. 9. A legal detention becomes arbitrary if it is unnecessarily prolonged and not subject to periodic review.⁹See Rep. of the Working Grp. on Arbitrary Det., Hum. Rts. Council, A/HRC/39/45 (2018) [hereinafter Arbitrary Detention Report]; Kyung Yup Kim v. New Zealand, CCPR/C/139/D/4170/2022, Decision of CCPR, ¶ 8.17 (Dec. 20, 2023) [hereinafter Kim v. New Zealand].

The ICCPR adjudicatory committee has found that “to avoid a characterization of arbitrariness, the detention must be shown to be reasonable, necessary in all circumstances of the case and proportionate to achieve the legitimate aims of the State party.”¹⁰Graham Cayzer v. Australia, CCPR/C/135/D/298/2017, Decision of CCPR, ¶ 2.11 (Jan. 30, 2023) [hereinafter Cayzer v. Australia]. A detention is arbitrary if the legitimate ends of the detention can be achieved “by less invasive means.”¹¹Id. “Less invasive means” can include “reporting obligations, sureties, and other conditions to prevent absconding.”¹²See General comment No. 35, CCPR/C/GC/35, General Remarks, ¶ 18 (Dec. 16, 2014).

Less Invasive Alternatives to Detention

When ICE detains a noncitizen who entered the United States illegally, their detention is legal because the noncitizen violated the Immigration and Naturalization Act.¹³See 8 U.S.C. § 1226 (“On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.”). After an immigration judge has ordered a noncitizen removed, the United States must deport the individual within ninety days.¹⁴See 8 U.S.C. § 1231 (“Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days”). Custody determinations of noncitizens detained past their removal period are made pursuant to 8 C.F.R. § 241.4.¹⁵See 8 C.F.R. § 241.4 (articulating the regulations for noncitizen detained beyond their removal period). When ICE holds a noncitizen over six months after an immigration judge has ordered their removal, the detention may be arbitrary if there are less invasive means ICE could employ to account for the noncitizen.

For example, an Order of Supervision is one alternative to detention. An Order of Supervision allows a noncitizen to be released from detention if the noncitizen agree to be tracked and monitored by officials.¹⁶Order of Supervision, Mark E. Jacobs Attorney and Counselor at Law, https://www.markjacobslaw.com/immigration-law-overview/orders-of-supervision/#:~:text=An%20order%20of%20supervision%2C%20usually,on%20the%20part%20of%20ICE. (last visited Sept. 16, 2024) [hereinafter Jacobs Attorney and Counselor at Law]. ICE extends this alternative to noncitizens awaiting court proceedings and noncitizens who have received a final removal order but for some reason cannot be removed.¹⁷Order of Supervision, Charlotte Immigration Law Firm, https://www.charlottelaw.net/OSUP#:~:text=One%20may%20request%20ICE%20to,with%20their%20ICE%20check%2Dins (last visited Oct. 7, 2024) [hereinafter Charlotte Immigration Law Firm]. Venezuelan noncitizens in prolonged ICE custody cannot be removed because the Venezuelan government will not accept deportation flights from the United States. Therefore, as an alternative to prolonged detention, ICE could release noncitizens under an Order of Supervision. Even though ICE would track and monitor these individuals, living in the United States while being tracked and monitored likely is less invasive than prolonged detention.

Conclusion

These detentions highlight the difficulty of setting domestic immigration policy in the context of international law and political relations. Since Venezuela stopped accepting deportation flights, many individuals remain indefinitely detained. Their indefinite detention may be considered arbitrary and violates international legal standards outlined in Article 9 of the ICCPR. At least one less invasive alternative to detention exists, namely, an Order of Supervision. The United States should consider alternatives to detention in instances of prolonged detention to better align its immigration practices with international law.