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Alternative Detention Resolution

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For many aggrieved parties, the United Nations is a forum for resolving international disputes. But for Carlyle Leslie Owen Dale, a Jamaican immigrant, his petition to the United Nations was a bid to end his stay in U.S. immigration detention, where he had been languishing for five years despite chronic medical conditions.

Mr. Dale is a 61-year old grandfather who has resided legally in the United States for thirty-nine years. Following his arrival as a student back in 1971, and after completing his college course work, Mr. Dale was gainfully employed in various fields ranging from technical services to advertising before finally establishing his own business, The Safe Housing Project Inc. in the 1990s. As owner, Mr. Dale operated a series of halfway-houses for mentally challenged men recovering from substance abuse problems. Over the course of time Mr. Dale purchased two homes - one in Uniondale, New York; the other in Orlando, Florida where most of his family lives today. Mr. Dale applied for citizenship in the mid-1990s but the application, submitted on the cusp of a fee hike, was returned. Mr. Dale never re-submitted, and the consequences have been dire. On April 18, 2000 Mr. Dale was charged with attempted aggravated assault related to an altercation with one of the residents at the halfway houses he owned. He pleaded guilty and received a four year prison sentence. In 2005, upon completion of his parole, ICE took custody of Mr. Dale and placed him in removal proceedings on account of his criminal conviction. ICE held Mr. Dale in immigration detention for the next five years, despite his medical condition which included chronic asthma, high blood pressure and diabetes.

In the petition filed with the United Nations Working Group for Arbitrary Detention (UNWGAD), Mr. Dale's attorneys asserted that he was being arbitrarily held in detention and that the continuation of detention posed a serious threat to his life or health. At the onset of his detention, ICE assured Mr. Dale he would be held for one or two days due to his poor health. Five years later, Mr. Dale's period of civil detention had now exceeded the length of the sentence for his criminal conviction, during which time he was never provided the opportunity for impartial review of his detention.

So why appeal to the United Nations? Claudia Valenzuela, associate director of litigation at the National Immigrant Justice Center (NIJC) and one of Mr. Dale's attorneys, wrote in an email, "We arrived at the decision to file a petition to the U.N. Working Group on Arbitrary Detention (UNWGAD) because, in our view, we had attempted to secure Mr. Dale's release via all of the available legal channels under U.S. domestic law. U.S. immigration law offers little recourse for individuals in Mr. Dale's situation to seek review of their detention: there is no opportunity to appear before an impartial arbiter and have a meaningful hearing, including presenting testimony and evidence with representation by an attorney, and there is no opportunity to appeal an adverse decision by the agency . In our view, Mr. Dale's detention met the definition of "arbitrary," both under U.S. legal concepts as well as under international law."

Attorneys for Mr. Dale approached the United Nations only after they had unsuccessfully exhausted all available domestic remedies - the administrative requests and writ of habeas corpus. Attorney Valenzuela continued, "In our view, although not binding on any U.S. court of law, any opinion in Mr. Dale's favor by the UNWGAD would carry weight as a condemnation of his arbitrary detention by the international community. The United States prides itself on a justice system that was founded on principles of fairness and due process. Our hope was that by bringing this to the attention of the UNWGAD and by a decision finding that Mr. Dale's detention to be arbitrary, the United States government would review this case to vindicate our client's challenge to his 5-year detention, and also raise awareness about the due process violations which occur in our country's immigration detention system, and perhaps influence U.S policymakers to examine and even change existing US policy with regard to the detention of immigrants like Mr. Dale."

One domestic remedy Mr. Dale pursued was to file an appeal to the U.S. Court of Appeals for the Fifth Circuit from his final order of removal. Then NIJC filed a writ of habeas corpus on Mr. Dale's behalf in federal court. According to his lawyers, Jeffrey Freeman and Wendy Netter Epstein, the habeas languished as that court refrained from opining until Mr. Dale's appeal in his immigration case before the Fifth Circuit case was resolved. The opinion of the Fifth Circuit would determine whether he was deportable from the U.S. The Fifth Circuit ruling, which had been pending more than five months, came out unexpectedly the day before the NIJC filed the U.N. petition. The Fifth Circuit decision decided in favor of Mr. Dale on both legal issues involved in his case, and therefore found that Mr. Dale was not deportable. They noted that the U.N. petition and the press coverage it garnered applied additional political pressure for the agency to do so promptly. Upon Mr. Dale's release, his habeas petition became moot.

Filing an immigration detention challenge with the U.N. is a rare course of action, but is certainly not the exception. The National Immigrant Justice Center has filed several such petitions in the past and very few have been filed by immigrants in U.S. detention over the years. The majority of immigrants in detention are unaware this avenue is available to them. Hopefully, more advocates will approach international human rights bodies such as the UNWGAD as an option in cases.