While ICE reported an average detention stay of 37 days in 2007, Amnesty International found that 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. For example, according to a 2003 study, asylum seekers 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, detailed 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.
An important safeguard against arbitrary detention is the ability of an individual to challenge his or her detention before an independent judicial body. The US criminal justice system provides individuals detained and charged with criminal offenses with the opportunity to challenge their detention before a court and provides legal counsel for individuals who cannot afford to pay themselves. However, individuals detained on the basis of civil immigration violations are not provided with such safeguards. Many individuals are held in immigration detention without access to an immigration judge or judicial body and have to represent themselves if they cannot afford a lawyer. Factors such as whether an individual is apprehended at the border, whether an individual is apprehended within the United States, and whether an individual has been convicted of certain crimes may determine whether that individual is detained and what kind of review, if any, takes place.
In the case of individuals who are apprehended at the border, an immigration officer makes decisions about whether or not the person will remain in detention– these individuals are not entitled to a review of their detention by an immigration judge. Those apprehended inside the United States are entitled to a review by an immigration judge. However, this review does not always take place, or does not take place in a timely manner.
Individuals who have lived in the US for years can be subject to "mandatory detention", meaning there is no opportunity for an individual hearing to determine whether he or she should be released, and deported for minor crimes they committed years ago. Thousands of individuals every year are subject to mandatory detention while deportation proceedings take place. It is not known exactly how many individuals are subject to mandatory detention, and DHS did not respond to a request from Amnesty International to provide this data. US citizens and lawful 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 from the United States.
The ability to access the outside world is an essential safeguard against arbitrary detention. However, Amnesty International documented significant barriers immigrants face in accessing assistance and support while in detention. Problems included lack of access to legal counsel and consulates; lack of access to law libraries along with inadequate access to telephones; and frequent and sudden transfers of detainees to facilities located far away from courts, advocates, and family.