USA: Jailed Without Justice

Report
March 25, 2009

USA: Jailed Without Justice

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  1. 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;
  2. 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.
  3. 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.
    1. Detention should be used only if the US government demonstrates in each individual case that it is a necessary and proportionate measure. No one should be subject to "mandatory detention."
    2. All decisions to detain should be subject to formal and regular review by a judicial body. Measures must be immediately taken to ensure that the discretion currently exercised by individual ICE officers to detain immigrants be subject to formal judicial review.
    3. Immigrants should be advised of the release options available to them and how to access them.
  4. 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.

 

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[1] An individual is eligible for protection under the Convention Against Torture if he or she can demonstrate that it is "more likely than not" that he or she will be subjected to torture upon removal to his or her country of origin. 8 CFR § 1208.16 -1208.18.

[2] Individuals subject to "mandatory detention" in the United States are not entitled to a bond hearing before an immigration judge. See INA § 236(c). In July 2008, the Court of Appeals for the Ninth Circuit determined that individuals who have a stay of removal pending a decision on their appeals before the circuit courts, or whose cases have been remanded to the Board of Immigration Appeals after obtaining judicial review, are not subject to mandatory detention and therefore have the right to a bond hearing. See Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008). Because Mr. M had a stay of removal pending a decision on his appeal, he benefited from this decision and was provided with a bond hearing.

[3] Amnesty International correspondence with Mr. M's attorney (identity withheld), January 12 2009.

[4] Office of the Inspector General, US Department of Justice, Audit Report 97-05 (1/97), Immigration and Naturalization Service Contracting for Detention Space, January 1997, page 2, available at: http://www.usdoj.gov/oig/reports/INS/a9705/index.htm.

[5] United States Government Accountability Office, Alien Detention Standards: Observations on the Adherence to ICE's Medical Standards in Detention Facilities, June 4, 2008 available at: http://www.gao.gov/new.items/d08869t.pdf.