USA: Jailed Without Justice

March 25, 2009

USA: Jailed Without Justice

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Entering or remaining in the United States without authorization is a civil violation, not a crime. The Department of Homeland Security (DHS) has broad discretion to apprehend individuals it suspects of immigration violations. Individuals may be apprehended at the border, during employment or household raids, as a result of traffic stops by local police, or after having been convicted of a criminal offense.

Immigration officers (ICE agents) stopped a father walking his daughter to school in California in 2008. The officers asked the young girl, not more than 8 years old, to translate their questions about her father's immigration status, as he did not speak English. Immigration authorities later took her father away.[20]


There are two divisions within DHS tasked with immigration enforcement: Customs and Border Protection (CBP) is responsible for enforcement at the border, and Immigration and Customs Enforcement (ICE) is responsible for enforcement within the United States. If DHS has a reasonable belief that an individual does not have permission to enter or remain in the United States, then that person may be placed in "removal proceedings," which means the government is seeking to deport him or her from the United States.

Individuals apprehended by immigration authorities often do not know what is happening and may not understand what their rights are. Many may accept immediate deportation even though they may not have had an opportunity to consult with an attorney and they may not actually be deportable.[21] A person may be eligible to remain in the United States for a variety of reasons, including a well-founded fear of persecution in his or her home country, having a US citizen spouse, or exceptional hardship caused to his or her US citizen children. Amnesty International has identified more than a hundred cases in the past ten years in which US citizens and lawful permanent residents have incorrectly been placed into removal proceedings.[22]

Individuals subject to deportation still have human rights. International law requires that deportation procedures follow due process and conform to international human rights standards. Like any other circumstance, detention pending removal proceedings must be justified as a necessary and proportionate measure in each individual case, and should only be used as a measure of last resort and be subject to judicial review.

A 34-year-old Mexican mother of three told Amnesty International that she was arrested at her home in front of her 3-year-old autistic US citizen son by local police and jailed for 24 days. According to her attorney, she was arrested for failure to appear for a petty theft offense. She was taken to jail "handcuffed to other people on the way" and interrogated that evening by an ICE officer. She told Amnesty International that she does not speak English and had no idea why she was being held. She also told Amnesty International that ICE officers said that it was her fault she was being separated from her family and she should just accept an order of deportation. After nearly three weeks in detention with no indication of when she would able to return to her family, she tried to kill herself. She told Amnesty International "I started feeling a nervous breakdown- can you imagine, being locked up…the kids needed me… I started hanging myself. I don't know what happened, but everything started turning dark." When officers responded, "[I]nstead of helping me they handcuffed me" and took her to another cell. She was later released on bond and is still awaiting final determination of her case.
-Amnesty International interview with former immigration detainee (identity withheld), June 2008