Jailed Without Justice:
Immigration Detention in the USA
Migration is a fact of life. Some people move to new countries to improve their economic situation or to pursue their education. Others leave their countries to escape armed conflict or violations of their human rights, such as torture, persecution, or extreme poverty. Many move for a combination of reasons. Governments have the right to exercise authority over their borders; however, they also have obligations under international law to protect the human rights of migrants, no matter what prompted an individual to leave his or her home country.
This report focuses on the human rights violations associated with the dramatic increase in the use of detention by the United States as an immigration enforcement mechanism. In just over a decade, immigration detention 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 in 2009.
More than 300,000 men, women and children are detained by US immigration authorities each year. They include asylum seekers, torture survivors, victims of human trafficking, longtime lawful permanent residents, and the parents of US citizen children. The use of detention as a tool to combat unauthorized migration falls short of international human rights law, which contains a clear presumption against detention. Everyone has the right to liberty, freedom of movement, and the right not to be arbitrarily detained.
The dramatic increase in the use of immigration detention has forced US immigration authorities to contract with approximately 350 state and county criminal jails across the country to house individuals pending deportation proceedings. 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. The average cost of detaining a migrant is $95 per person, per day. Alternatives to detention, which generally involve some form of reporting, are significantly cheaper, with some programs costing as little as $12 per day. These alternatives to detention have been shown to be effective with an estimated 91 per cent appearance rate before the immigration courts. Despite the effectiveness of these less expensive and less restrictive alternatives to detention in ensuring compliance with immigration procedures, the use of immigration detention continues to rise at the expense of the United States' human rights obligations.
Approximately 1.8 million people migrate to the United States every year. The vast majority have official authorization to live and work in the United States. Less than a quarter do not have permission to enter the United States, and they live and work in the country as unauthorized immigrants. The US government estimates that as of January 2007, there were almost 12 million unauthorized immigrants living in the United States. They come from countries around the world-the top five countries of origin are Mexico, El Salvador, Guatemala, the Philippines, and China. Unauthorized immigrants often live in the shadows and are at heightened risk of exploitation, discrimination and abuse. They often work in degrading conditions and are frequently denied access to many forms of healthcare, housing, and other services. Individuals committing abuses against immigrants know that they are unlikely to be held accountable, because unauthorized immigrants are often reluctant to turn to the authorities, fearing the possibility of arrest or deportation.
Politicians, public officials, and the media have a significant impact on the public's perception of immigrants and their rights. Much of the public debate about migration in the United States, particularly in the wake of the attacks of September 11, is framed around issues of national security and the economy. One primetime host of a national news channel stated, "Illegal aliens…not only threaten our economy and security, but also our health and well-being…" Such comments contribute to a climate of fear and create the impression that immigrants do not – and should not – have any rights at all.
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.
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. 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.
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.
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.
Amnesty International also documented pervasive problems with conditions of detention, such as comingling of immigration detainees with individuals convicted of criminal offenses; inappropriate and excessive use of restraints; inadequate access to healthcare, including mental health services; and inadequate access to exercise. In 2000, immigration authorities introduced detailed detention standards for facilities housing immigration detainees, covering issues such as access to attorneys and conditions of detention. However, these guidelines are not binding regulations and are not legally enforceable.
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 and are not legally enforceable. Amnesty International findings indicate that conditions of detention in many facilities do not meet either international human rights standards or ICE guidelines. 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 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.
- 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."
- 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.
- Immigrants should be advised of the release options available to them and how to access them.
- 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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 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.
 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.
 Amnesty International correspondence with Mr. M's attorney (identity withheld), January 12 2009.
 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.
 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.
 In its 2009 budget, DHS requested $46 million to pay for an additional 1,000 detention bed spaces. However, the total amount allocated was $71.7 million, which would be enough for 1,400 beds. See US Department of Homeland Security fact sheet, US Department of Homeland Security Announces 6.8 Percent Increase in Fiscal Year 2009 Budget Request, 4 February 2008, available at: http://www.dhs.gov/xnews/releases/pr_1202151112290.shtm; US Department of Homeland Security, US Immigration and Customs Enforcement Fact Sheet Fiscal Year 2009, 23 October 2008, available at: http://www.ice.gov/doclib/pi/news/factsheets/2009budgetfactsheet.doc.
 US Department of Homeland Security Annual Report, Immigration Enforcement Actions: 2007, December 2008, available at: http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement_ar_07.pdf
 ICE currently detains individuals in seven privately contracted detention facilities, eight ICE-owned facilities and five Federal Bureau of Prison facilities. See Immigration and Customs Enforcement, Detention Management Program, 4 November 2008, available at: http://www.ice.gov/partners/dro/dmp.htm?searchstring=detention%20AND%20management%20AND%20control%20AND%20program.
 Detention Watch Network, About the U.S. Detention and Deportation System, available at: http://www.detentionwatchnetwork.org/aboutdetention.
 American Immigration Lawyers Association, Alternatives to Detention Position Paper, available at: http://www.aila.org/Content/default.aspx?docid=25874.
 Vera Institute of Justice, Testing Community Supervision for the INS: An Evaluation of the Appearance Assistance Program, Volume I, Final Report to the Immigration and Naturalization Service, 1 August 2000, available at: http://www.vera.org/publication_pdf/aapfinal.pdf.
 Migration Policy Institute, Annual Immigration to the United States: The Real Numbers, No. 16, May 2007, available at: http://www.migrationpolicy.org/pubs/FS16_USImmigration_051807.pdf; See also US Department of Homeland Security, Yearbook of Immigration Statistics: 2007, Washington, DC, September 2008, available at: http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2007/ois_2007_yearbook.pdf.
 This is an estimate, since the exact numbers are not known. See, for example, Migration Policy Institute, Annual Immigration to the United States: The Real Numbers, No. 16, May 2007, available at: http://www.migrationpolicy.org/pubs/FS16_USImmigration_051807.pdf; See also US Department of Homeland Security, Yearbook of Immigration Statistics: 2007, Washington, D.C., September 2008, available at: http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2007/ois_2007_yearbook.pdf; and Michael Hoefer, Nancy Rytina and Bryan C. Baker, Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2007, US Department of Homeland Security, Office of Immigration Statistics, Policy Directorate, available at: http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2007.pdf
 Michael Hoefer, Nancy Rytina and Bryan C. Baker, Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2007, US Department of Homeland Security, Office of Immigration Statistics, Policy Directorate, available at: http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2007.pdf.
 These five countries account for approximately 72 per cent of the total number of unauthorized immigrants entering the United Sates in 2007. See Michael Hoefer, Nancy Rytina and Bryan C. Baker, Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2007, US Department of Homeland Security, Office of Immigration Statistics, Policy Directorate, Table 3, Page 4, available at: http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2007.pdf.
 See Human Rights Watch, Blood, Sweat and Fear: Workers' Rights in U.S. Meat and Poultry Plants, 24 January 2005, available at http://www.hrw.org/en/reports/2005/01/24/blood-sweat-and-fear-0.
 Unauthorized immigrants are ineligible for public medical assistance programs. 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWOR) (PL 104-193). See also Guide to Immigrant Eligibility for Federal Program, 4th ed., Table 1, National Immigration Law Center, 2002, at: http://www.nilc.org/pubs/guideupdates/tbl1_ovrvw_fed_pgms_032505.pdf.
 Peter Hart, Dobbs' Choice: CNN Host Picks Immigration As His Ax to Grind, Extra!, Fairness and Accuracy in Reporting, January/February 2004, available at: http://www.fair.org/index.php?page=1162.
 James Pendergraph, speaking at the Police Foundation National Conference, The Role of Local Police: Striking a Balance between Immigration Enforcement and Civil Liberties, Washington, D.C.
 Representative Lynn Woolsey (Democrat-California), Testimony on Immigration Raids: Postville and Beyond, Committee on Judiciary, Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International, 22 July 2008.
 Immediate deportation can happen in a variety of ways. For example, an individual may be offered the opportunity to withdraw his or her application to enter the United States; he or she may be also be deported through processes known as "expedited removal" or "stipulated removal," which means that an individual is not placed in formal removal (deportation) proceedings and waives the right to a hearing before an immigration judge.
 A full list of cases is on file with Amnesty International. See further: Section 3.3 Mandatory Detention.
 Zadvydas v. Davis, 533 US 678, 690 (2001).
 US Government Accountability Office, Alien Detention Standards: Observations on the Adherence to ICE's Medical Standards in Detention Facilities, 4 June 2008, available at: http://www.gao.gov/new.items/d08869t.pdf.
From Persecution to Prison: The Health Consequences of Detention for Asylum Seekers, Physicians for Human Rights and the Bellevue/NYU Program for Survivors of Torture, June 2003, page 5, available at: http://physiciansforhumanrights.org/library/documents/reports/report-perstoprison-2003.pdf.
 See Kathleen Glynn and Sarah Bronstein, Systemic Problems Persist in U.S. ICE Custody Reviews for Indefinite Detention, Catholic Legal Immigration Network, Inc., 2005, available at: http://www.cliniclegal.org/DSP/Indefinite2005FINALforRELEASE.pdf.
 These are individuals seeking admission to the United States and are classified as "arriving aliens". The Department of Homeland Security defines this category to include individuals apprehended within 100 miles of the border and within 14 days of entry. See US Department of Homeland Security, Department of Homeland Security Streamlines Removal Process Along Entire U.S. Border, Office of the Press Secretary, 30 January 2006, available at: http://www.dhs.gov/xnews/releases/press_release_0845.shtm.
 Amy Goldstein and Dana Priest, Five Detainees Who Took Their Lives, The Washington Post, 13 May 2008, page A08.
 See US Immigration and Customs Enforcement, Press Release, ICE Announces New Performance-Based National Detention Standards for all ICE Detention Facilities, 12 September 2008, available at: http://www.ice.gov/news/releases/0809/080912washington.htm.
 As Amnesty International conducted research for the most part before September 2008, analysis focuses on the 2000 Detention Standards. The standards published by US Immigration and Customs Enforcement (ICE) in September 2008 contain forty-one (41) Performance-Based National Detention Standards, four of which are new. These include: News Media Interviews and Tours, Searches of Detainees, Sexual Abuse and Assault Prevention and Intervention, and Staff Training.
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