Background Information: Make Detention Standards Enforceable and Use Alternatives to Detention

The number of immigrants subjected to detention has tripled in the past decade; in 1996, immigration authorities had a daily detention capacity of less than 10,000. Today more than 30,000 immigrants are detained each day, and this number is budgeted to increase even further in 2009. People in detention include asylum seekers, torture survivors, victims of human trafficking, long time lawful permanent residents and the parents of U.S. citizen children.

International human rights standards require that detention be used only in exceptional circumstances, be subject to judicial review, and be justified in each individual case. Such a review must include consideration of alternatives to detention with the goal of using the least restrictive method possible. Viable alternatives to detention do exist in the U.S. immigration detention system and they generally are more affordable than detention itself. Alternatives to detention, including the possibilities of reporting requirements or a bond, should always be considered before resorting to detention. While the average cost of detaining an immigrant is $95 per person/per day, alternatives to detention are significantly cheaper, with some programs costing as little as $12 per day. However, these more affordable options are often not considered and the use of such programs varies greatly from region to region. In addition, sometimes alternatives to detention have been used to supervise people who did not even need to be in detention in the first place.

For those who must be detained, the conditions of custody should meet both international and domestic standards for the humane treatment of immigrants. In reality, in the U.S. immigration system many people face significant challenges like inadequate medical care, unnecessary shackling, poor access to legal assistance and resources, and even the simple lack of a working telephone.

In September 2008, ICE announced the publication of 41 new performance-based detention standards, which are to be implemented over 18 months and will take full effect in all facilities housing ICE detainees by January 2010. Amnesty International welcomes this step toward improving conditions in immigration detention; however these are still only guidelines, don't ensure compliance with human rights standards, and are not legally enforceable. There is an urgent need to ensure that all facilities housing immigration detainees comply with international human rights law and standards. Ensuring that detention standards are legally binding and creating a mechanism for independent oversight of their implementation would better protect the human rights of immigrants in detention in the United States.

The Department of Homeland Security has standards that cover the issues above, as well as many others, and that are meant to apply to all facilities housing people in immigration detention. Unfortunately, these standards are not enforceable. Violations are difficult to challenge and even harder to remedy, and detained people are concerned that filing a grievance may result in retaliation rather than a resolution. For those who must be detained, the rules that apply to conditions of detention must carry weight and be subject to oversight so that problems can be fixed.

» Take Action: Make Detention Standards Enforceable and Use Alternatives to Detention
» Read: Jailed Without Justice: Immigration Detention in the USA (PDF)