Immigrant Detention Report

Jailed Without Justice: Immigration Detention in the USA

Executive Summary

"Whether I'm documented or not, I'm a human being. I used to think birds in a cage were so pretty but no one should be deprived of freedom - no one should be caged."
-Amnesty International interview with former immigration detainee (identity withheld), June 2008

In just over a decade, immigration detention in the United States has tripled. 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 likely to increase even further. They include asylum seekers, torture survivors, victims of human trafficking, longtime lawful permanent residents, and the parents of US citizen children. The US detains children, asylum seekers, survivors of torture and human trafficking, lawful permanent residents and the parents of U.S. citizen children.

While ICE reported an average detention stay of 37 days in 2007, immigrants and asylum seekers may be detained for months or even years as they go through deportation procedures that will determine whether or not they are eligible to remain in the United States. According to a 2003 study, individuals who were eventually granted asylum spent an average of 10 months in detention with the longest reported period being 3.5 years. Amnesty International has documented several cases in this report, in which individuals have been detained for four years. Individuals who have been ordered deported may languish in detention indefinitely if their home country is unwilling to accept their return or does not have diplomatic relations with the United States.

In order to meet the rising demand for space to house immigration detainees, US immigration authorities to contract with approximately 350 state and county criminal jails across the country. Approximately 67 per cent of immigration detainees are held in these facilities, while the remaining individuals are held in facilities operated by immigration authorities and private contractors.

Amnesty International found that the detention of immigrants and asylum seekers puts considerable pressure on individuals to abandon potentially valid claims to remain in the United States.

1. Review of Detention and Options for Release

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.
-Article 9 of the United Nations International Covenant on Civil and Political Rights

An important safeguard against arbitrary detention is the ability of an individual to challenge his or her detention before an independent judicial body. The U.S. criminal justice system provides individuals detained and charged with criminal offenses with the opportunity to challenge their detention before a court. However, access to judicial review is not currently provided on to all individuals detained on the basis of civil immigration violations. Factors such as where an individual was apprehended, and whether an individual has been convicted of certain crimes may determine what kind of review, if any, takes place. Where reviews do take place, alternatives to detention, including an affordable bond, are frequently not utilized.

1.1 Individuals apprehended at the border

A 26-year-old Chinese woman cried as she told AI researchers that she fled persecution after she and her mother were beaten in their home for handing out religious fliers. She arrived in the United States in January 2008 seeking asylum and was detained at the airport before being moved to a county jail. No one explained to her why she was being detained. An ICE Field Office Director decided that she should remain in detention unless a bond of $50,000 was paid. Neither her uncle in the United States nor her family in China had sufficient funds to meet the required amount. Her attorney told Amnesty International that the immigration judge indicated that he did not have the authority to release her from detention or change the amount of the bond set. Family members in the United States were finally able to raise the money needed to secure her release in December 2008, after she had spent nearly an entire year in detention.
- Amnesty International interviews with a detained asylum seeker and her attorney (identities withheld), June 2008.

An immigration officer (ICE Field Office Director) decides whether someone is released from detention and the conditions of such release, such as the amount of bond to be posted or reporting requirements. These individuals are not entitled to a review of their detention by an immigration judge. The discretionary nature of the parole decision making process means that an individual's chances of release may depend entirely on where he or she is detained. Rates of release of individuals seeking asylum range from 4 per cent in Newark, New Jersey to 98 per cent in Harlingen, Texas. The parole process concentrates extraordinary power in the hands of individual ICE officers and lacks effective oversight and review, in contravention of international human rights standards.

1.2 Individuals apprehended inside the United States

Mr. A fled to the USA from India in 1999 after being severely tortured and jailed multiple times due to his political activities. In 2006, he was arrested and detained by ICE and required to pay a $15,000 bond. His wife contracted with a bail bondsman to pay the bond and Mr. A applied for asylum. Over two years he appeared regularly for all immigration court hearings, but at the end of a hearing in which he had testified for hours about the torture he suffered in India, he was again arrested and detained by ICE. At a bond hearing before an immigration judge he was ordered released upon payment of an $80,000 bond. Mr. A's family and friends pooled their resources, using credit cards and their homes as collateral in order to secure his release. Mr. A was eventually granted asylum protection.
- Amnesty International interview with a former immigration detainee (identity withheld), June 2008.

An ICE Field Office Director makes the initial decision regarding whether someone remains in detention or is released. Individuals may ask for a review by an immigration judge, however, some may not realize that it's possible to make such a request. Where reviews do take place, reports indicate that immigration judges are increasingly not releasing people on bond or are setting the bond too high. The minimum bond that may be set is $1500, but the average immigration bond is $5,941. In New York, the average is $9,831, and in at least eight other jurisdictions the average is over $6,000. There is also wide regional variation among immigration courts in the use of release of individuals without monetary bond, and even confusion about whether courts have jurisdiction to utilize this option. Immigration courts in Houston, Texas released 462 people without monetary bond in 2006, whereas immigration courts in New York City and Las Vegas released no one on this basis. A total of 2,442 people were released on their own recognizance in 2006.

1.3 Mandatory Detention

Mr. B, a 57-year-old lawful permanent resident of the United States for more than forty years with US citizen children and grandchildren, spent four years in mandatory detention while fighting deportation. In August 2003, he pled guilty to two misdemeanors and received probation. As part of his probation, he was required to check in with a probation officer, and he did so regularly. Before Thanksgiving in 2003 his probation officer asked him to come in and when he did so, ICE officers arrested Mr. B based on the misdemeanor convictions and sought to deport him, claiming that his convictions constituted aggravated felonies under immigration law. "I was in complete shock and kept asking my probation officer why I was being taken away. I had never heard of ICE." Mr. B told Amnesty International. His wife returned home from work that day to a voicemail that said she should pick her husband's car up. She told Amnesty International "My husband didn't call me for two or three days. I didn't know what was happening. No one would tell me." Although an immigration judge ruled that his convictions were not aggravated felonies, he remained in detention while his case went through several government appeals. In November 2007, the federal court of appeals found that Mr. B was not an aggravated felon and ordered his immediate release. Although he was no longer subject to deportation, ICE refused to release Mr. B unless he paid bond. Mr. B told Amnesty International "My tears came down my eyes because I learned that I would not be released unless I paid $10,000. I didn't know why." Mr. B's wife raised this money from family and friends; after his release, however, ICE did not return the bond money for over five months. When Mr. B finally received it, his family had to use the money to pay bills. He is still trying to pay back his friends and family, and his daughter has moved back into the home to help him and his wife financially
- Amnesty International interview with Mr. B and his wife (identities withheld), January 2009

A 37-year-old lawful permanent resident, who had lived in the United States for 18 years, was deported to Haiti for two convictions for possession of stolen bus pass transfers. The immigration court found that these convictions constituted two crimes of moral turpitude, a decision that led to his deportation.

Lawful permanent residents can be placed in "mandatory detention" with no right to a bond hearing before an immigration judge or judicial body. It is believed that thousands of individuals are subject to mandatory detention every year. The categories of crimes that trigger mandatory detention include minor, non-violent crimes (such as receiving stolen property) committed years ago, and are broad and difficult to define. U.S. citizens and long-time permanent residents have been incorrectly subject to mandatory detention, and have spent months or years behind bars before being able to prove they are not deportable. According to AIUSA's research, at least 117 people have been held in mandatory detention for crimes that were ultimately determined not to be deportable offenses. In 2007 alone, legal service providers identified 322 individuals in detention with potential claims for U.S. citizenship. The US mandatory detention system amounts to arbitrary detention and violates international law, which requires that detention be justified in each individual case and be subject to judicial review.

Mr. W., a US citizen, was placed in immigration detention in Florence, Arizona. According to the Florence Immigrant and Refugee Rights Project, he was born in Minnesota and had never left the United States in his life. Because he was detained, he did not have access to his birth certificate, and was working in the prison kitchen for a dollar a day to earn the thirty dollars it would cost to order a copy of his birth certificate. Mr. W. was finally released after being detained for over a month.

2. Alternatives to Detention

"Can you please bring my dad home?"
-David aged 7 in a letter to immigration court, after not having seen his lawful permanent resident father for over four years.

Alternatives to detention such as reporting requirements or an affordable bond should always be explicitly considered before resorting to detention. Alternatives to detention programs have been shown to be effective and significantly less expensive than holding people in immigration detention in the United States. While the average cost of detaining an immigrant is $95 per person/per day, a study of supervised release conducted by the Vera Institute in New York yielded a 91 per cent appearance rate at an estimated cost of just $12 per person per day. Despite the effectiveness of these alternatives to detention programs in ensuring compliance with immigration procedures, the use of immigration detention continues to rise at the expense of the United States' human rights obligations.

Authorities should always use the least restrictive means necessary as alternatives to detention.

Amnesty International is concerned however that the placing of electronic tagging devices on immigrants who are not considered security threats or flight risks constitute a disproportionate infringement upon their right to privacy and dignity.

3. Access to Assistance and Support: Safeguards Relating to Detention

"I can't go back… there are people there trying to kill me. I wrote so many letters to lawyers asking them to help me."
-Amnesty International interview with an unrepresented immigration detainee (identity withheld), June 2008.

Under US law, individuals in deportation proceedings may secure counsel, but at no expense to the government. Consequently, the vast majority of people - 84 percent - in immigration detention do not have a lawyer, and instead represent themselves. Representation by legal counsel can have a significant impact on the outcome of an individual's case. One study found that individuals are five times more likely to be granted asylum if they are represented.

Immigration detainees in the US face considerable barriers in communicating with anyone outside the facility and in accessing assistance, such as "know your rights" presentations, adequate access to law libraries and legal materials, immigration specific detainee handbooks, adequate access to telephones, translation and interpretation services. Many are frequently transferred between facilities, which undermines their ability to access to legal counsel and relatives.

4. Conditions of Detention

L.N. is 27 years old and was born in Afghanistan. He was 7 years old when he and his family came to the United States as refugees. He was placed in deportation proceedings and held in mandatory detention because of a drug conviction in 2007. He began urinating blood not long after, and was experiencing constant fatigue, pain and discomfort. He had to wait a month and a half before he was first seen by a doctor. After nine months, he had yet to receive any diagnosis or treatment. He has filed four grievances about his lack of medical treatment and told Amnesty International that he is so frustrated and afraid that he is considering giving up his claim of citizenship and going back to Afghanistan in order to obtain medical care. He told Amnesty International that he was particularly concerned about his wife and daughter, who will suffer because he "made a mistake." "There's no life for my wife and daughter in Afghanistan."
-Amnesty International interview with immigration detainee (identity withheld), June 2008.

International standards require that administrative detention should not be punitive in nature. However, Amnesty International's findings indicate that conditions of detention in many facilities do not meet either international human rights standards or ICE guidelines. Immigration detainees are often detained in jail facilities with barbed wire and cells, alongside those serving time for criminal convictions. They are not able to wear their own clothes but instead wear prison uniforms.

Immigrants are unnecessarily exposed to inappropriate and excessive restraints including handcuffs, belly chains, and leg restraints. Amnesty International received reports that some individuals have been subjected to physical and/or verbal abuse while held in immigration detention, in violation of international standards. Individuals in detention also have inadequate access to exercise and find it very difficult to get timely - and at times any - treatment for their medical needs. 74 people have died while in immigration detention over the past five years.

In September 2008, ICE announced the publication of 41 new performance-based detention standards to be implemented over 18 months. These will take full effect in all facilities housing ICE detainees by January 2010. These standards, if effectively implemented, will improve conditions for immigration detainees. However, Amnesty International is concerned that they are not legally enforceable and do not provide adequate sanctions for violations.

Key Recommendations:

The USA must immediately act to address the pervasive violations of immigrants' human rights.

The US Congress should pass legislation creating a presumption against the detention of immigrants and asylum seekers and ensuring that it be used as a measure of last resort;
The US government should ensure that alternative non-custodial measures, such as reporting requirements or an affordable bond, are always explicitly considered before resorting to detention. Reporting requirements should not be unduly onerous, invasive or difficult to comply with, especially for families with children and those of limited financial means. Conditions of release should be subject to judicial review.
The US Congress should pass legislation to ensure that all immigrants and asylum seekers have access to individualized hearings on the lawfulness, necessity, and appropriateness of detention.
The US government should ensure the adoption of enforceable human rights detention standards in all detention facilities that house immigration detainees, either through legislation or through the adoption of enforceable policies and procedures by the Department of Homeland Security. There should be effective independent oversight to ensure compliance with detention standards and accountability for any violations.

Amnesty International's report, Jailed without Justice: Immigration Detention in the USA, released March 2009, covers these findings in detail.

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