Jailed Without Justice Report Immigration Detainees, Amnesty International, 2009
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JAILED WITHOUT JUSTICE Immigration Detention in the USA A Chinese asylum seeker at a jail in Virginia. ©Steven Rubin. JAILED WITHOUT JUSTICE Immigration Detention in the USA CONTENTS 1. Introduction 3 2. Immigrants’ Rights are Human Rights 11 3. Right to Review of Detention and Options for Release 13 3.1 Immigrants and asylum seekers detained at the border 13 3.2 Immigrants and asylum seekers apprehended inside the United States 15 3.2.1 Immigration Judge Review 16 3.2.2 Exorbitant Bonds 17 3.3 Mandatory Detention 3.3.1 People Who Should Not Be in Detention at All But Are Subject to Mandatory Detention 18 20 3.4 Indefinite Detention 24 3.5 Right to Habeas Corpus Review 25 4. Alternatives to Detention 27 5. Conditions of Detention 29 5.1 Access to Assistance and Support: Safeguards Relating to Detention 30 5.1.1 Access to lawyers 30 5.1.2 Access to information and other forms of assistance in detention 32 5.1.3 Translation and Interpretation Services 34 5.1.4 Access to attorneys and relatives 34 5.1.5 Access to telephones 35 5.2 Conditions of Detention 37 5.2.1 Housing with Detainees Convicted of Crimes 37 5.2.2 Inappropriate and excessive use of restraints 37 5.2.3 Medical Treatment 39 5.2.4 Exercise 41 5.2.5 Physical and Verbal Abuse 42 6. Recommendations 44 Endnotes 47 Scope and Methodology, A Note on Terminology, List of Terms/Abbreviations Inside back cover 1 After suffering torture and five years imprisonment in an Albanian concentration camp due to anti-communist activities, Mr. M was granted asylum and had been living in the United States for over 12 years when he was detained by immigration authorities and placed in mandatory detention. At the time of his detention in 2004, Mr. M had been a lawful permanent resident since 1992 and he was married with three US citizen children. Immigration and Customs Enforcement (ICE) charged Mr. M with being deportable from the US due to convictions related to purchasing a stolen vehicle and filing false information in a home loan application. He spent more than four years in detention fighting deportation by seeking protection under the Convention Against Torture, fearing that he would be tortured if returned.1 Mr. M’s wife and children lived in San Diego, California, hundreds of miles from where he was detained, so over four years they saw each other only four or five times. His wife told Amnesty International she was struggling to raise their children alone. Having lost the lease to their small business, she said she didn’t know how they would survive, yet she could not bring herself to tell her husband because she did not want to further erode his spirit. At the time Amnesty International interviewed the family, Mr. M was considering giving up his case because he did not know if or when he would be released from detention. According to his attorney, Mr. M was finally released on bond in September 2008 and is extremely happy to be back with his family awaiting final determination of his case.2 Amnesty International interviews with Mr. M’s wife and attorney (identities withheld), June 2008.3 2 JAILED WITHOUT JUSTICE Immigration Detention in the USA 1 INTRODUCTION “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 Migration is a fact of life. Some people move to More than 300,000 men, women and children new countries to improve their economic situation are detained by US immigration authorities each or to pursue their education. Others leave their year.7 They include asylum seekers, torture countries to escape armed conflict or violations of survivors, victims of human trafficking, longtime their human rights, such as torture, persecution, lawful permanent residents, and the parents of or extreme poverty. Many move for a combination US citizen children. The use of detention as a of reasons. Governments have the right to tool to combat unauthorized migration falls short exercise authority over their borders; however, of international human rights law, which contains they also have obligations under international law a clear presumption against detention. Everyone to protect the human rights of migrants, no matter has the right to liberty, freedom of movement, what prompted an individual to leave his or her and the right not to be arbitrarily detained. home country. The dramatic increase in the use of immigration This report focuses on the human rights violations detention has forced US immigration authorities associated with the dramatic increase in the to contract with approximately 350 state and use of detention by the United States as an county criminal jails across the country to house immigration enforcement mechanism. In just individuals pending deportation proceedings. over a decade, immigration detention has tripled. Approximately 67 percent of immigration detainees In 1996, immigration authorities had a daily are held in these facilities, while the remaining detention capacity of less than 10,000.4 Today individuals are held in facilities operated by more than 30,000 immigrants are detained each immigration authorities and private contractors.8 5 day, and this number is likely to increase even The average cost of detaining a migrant is $95 further in 2009.6 per person, per day.9 Alternatives to detention, 3 “IF YOU DON’T HAVE ENOUGH EVIDENCE TO CHARGE SOMEONE CRIMINALLY BUT YOU THINK HE’S ILLEGAL, WE [ICE] CAN MAKE HIM DISAPPEAR.” James Pendergraph, Former Executive director of the ICE Office of State and Local Coordination, August 21, 200819 which generally involve some form of reporting, abuses against immigrants know that they are significantly cheaper, with some programs are unlikely to be held accountable, because costing as little as $12 per day.10 These alter- unauthorized immigrants are often reluctant to natives to detention have been shown to be turn to the authorities, fearing the possibility of effective with an estimated 91 percent appearance arrest or deportation. rate before the immigration courts.11 Despite the effectiveness of these less expensive and less Politicians, public officials, and the media have restrictive alternatives to detention in ensuring a significant impact on the public’s perception compliance with immigration procedures, the of immigrants and their rights. Much of the use of immigration detention continues to rise public debate about migration in the United at the expense of the United States’ human States, particularly in the wake of the attacks rights obligations. of September 11, is framed around issues Approximately 1.8 million people migrate to the primetime host of a national news channel of national security and the economy. One United States every year.12 The vast majority stated, “Illegal aliens…not only threaten our have official authorization to live and work in the economy and security, but also our health and United States. Less than a quarter do not have well-being….”18 Such comments contribute to permission to enter the United States, and they a climate of fear and create the impression that live and work in the country as unauthorized immigrants do not—and should not—have any 13 immigrants. The US government estimates rights at all. that as of January 2007, there were almost 12 million unauthorized immigrants living in the 14 United States. They come from countries authorization is a civil violation, not a crime. The around the world—the top five countries of Department of Homeland Security (DHS) has origin are Mexico, El Salvador, Guatemala, broad discretion to apprehend individuals it the Philippines, and China.15 Unauthorized suspects of immigration violations. Individuals immigrants often live in the shadows and are may be apprehended at the border, during at heightened risk of exploitation, discrimination employment or household raids, as a result of and abuse. They often work in degrading traffic stops by local police, or after having been conditions16 and are frequently denied access convicted of a criminal offense. to many forms of healthcare, housing, and other services.17 Individuals committing 4 Entering or remaining in the United States without JAILED WITHOUT JUSTICE Immigration Detention in the USA 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. Immigration officers (ICE agents) stopped a father within the United States. If DHS has a reasonable walking his daughter to school in California in belief that an individual does not have permission 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 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. speak English. Immigration authorities later took her father away.20 Individuals apprehended by immigration authorities often do not know what is happening and may There are two divisions within DHS tasked with not understand what their rights are. Many may immigration enforcement: Customs and Border accept immediate deportation even though they Protection (CBP) is responsible for enforcement may not have had an opportunity to consult at the border, and Immigration and Customs with an attorney and they may not actually be Enforcement (ICE) is responsible for enforcement deportable.21 A person may be eligible to remain 5 in the United States for a variety of reasons, For example, according to a 2003 study, asylum including a well-founded fear of persecution in seekers who were eventually granted asylum his or her home country, having a US citizen spent an average of 10 months in detention with spouse, or exceptional hardship caused to his or the longest reported period being 3.5 years.25 her US citizen children. Amnesty International Amnesty International has documented several has identified more than a hundred cases in the cases, detailed in this report, in which individuals past ten years in which US citizens and lawful have been detained for four years. Individuals permanent residents have incorrectly been placed who have been ordered deported may languish into removal proceedings.22 in detention indefinitely if their home country is Individuals subject to deportation still have human diplomatic relations with the United States.26 unwilling to accept their return or does not have rights. International law requires that deportation procedures follow due process and conform to An important safeguard against arbitrary detention international human rights standards. Like any is the ability of an individual to challenge his or other circumstance, detention pending removal her detention before an independent judicial proceedings must be justified as a necessary and body. The US criminal justice system provides proportionate measure in each individual case, individuals detained and charged with criminal and should only be used as a measure of last offenses with the opportunity to challenge their resort and be subject to judicial review. detention before a court and provides legal counsel for individuals who cannot afford to pay While ICE reported an average detention stay themselves. However, individuals detained on of 37 days in 2007,24 Amnesty International the basis of civil immigration violations are not found that immigrants and asylum seekers may provided with such safeguards. Many individuals be detained for months or even years as they are held in immigration detention without access go through deportation procedures that will to an immigration judge or judicial body and have determine whether or not they are eligible to represent themselves if they cannot afford a to remain in the United States. lawyer. Factors such as whether an individual is apprehended at the border, whether an individual “FREEDOM FROM IMPRISONMENT—FROM GOVERNMENT CUSTODY, DETENTION, OR OTHER FORMS OF PHYSICAL RESTRAINT— LIES AT THE HEART OF THE LIBERTY [THE DUE PROCESS] CLAUSE PROTECTS.” 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.27 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. US Supreme Court 23 6 JAILED WITHOUT JUSTICE Immigration Detention in the USA Individuals who have lived in the US for years Geovanny Garcia-Mejia, 27, from Honduras, can be subject to “mandatory detention,” meaning died on March 18, 2006. He was detained at there is no opportunity for an individual hearing to determine whether he or she should be released, and deported for minor crimes they committed the Newton County Correctional Center in Texas. He had been placed in a medical unit, where years ago. Thousands of individuals every year he was found writing on the floor with his blood, are subject to mandatory detention while internal records show. But he was returned to deportation proceedings take place. It is not the jail’s general population after a psychologist known exactly how many individuals are subject wrote in his chart, “No idea why he is in suicide to mandatory detention, and DHS did not respond to a request from Amnesty International to provide this data. US citizens and lawful permanent cell.” He hanged himself 12 days later, on his 27th birthday. The local sheriff concluded residents have been incorrectly subject to that guards who should have been checking mandatory detention, and have spent months or him every 15 minutes “made no rounds through years behind bars before being able to prove they the night... [I]t goes without saying that the are not deportable from the United States. incident could have been avoided.”28 The ability to access the outside world is an essential safeguard against arbitrary detention. In September 2008, ICE announced the However, Amnesty International documented publication of 41 new performance-based significant barriers immigrants face in accessing detention standards, which are to be assistance and support while in detention. implemented over 18 months and will take full Problems included lack of access to legal counsel effect in all facilities housing ICE detainees by and consulates; lack of access to law libraries January 2010.29 Amnesty International welcomes along with inadequate access to telephones; and this step toward improving conditions in immigration frequent and sudden transfers of detainees to detention; however these are still only guidelines facilities located far away from courts, advocates, and are not legally enforceable. Amnesty and family. International findings indicate that conditions of detention in many facilities do not meet either Amnesty International also documented international human rights standards or ICE pervasive problems with conditions of detention, guidelines.30 There is an urgent need to ensure such as commingling of immigration detainees that all facilities housing immigration detainees with individuals convicted of criminal offenses; comply with international human rights law and inappropriate and excessive use of restraints; standards. Ensuring that detention standards are inadequate access to healthcare, including legally binding, and creating a mechanism for mental health services; and inadequate access independent oversight of their implementation, to exercise. In 2000, immigration authorities would better protect the human rights of introduced detailed detention standards for immigrants in detention in the United States. 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. 7 A Vietnamese immigrant detainee held at a facility in Washington state. ©Steven Rubin. 8 JAILED WITHOUT JUSTICE Immigration Detention in the USA KEY RECOMMENDATIONS 1. The US Congress should pass legislation 3.b All decisions to detain should be subject creating a presumption against the detention to formal and regular review by a judicial body. of immigrants and asylum seekers and ensuring Measures must be immediately taken to that it be used as a measure of last resort. ensure that the discretion currently exercised by individual ICE officers to detain immigrants 2. be subject to formal judicial review. The US government should ensure that alternative non-custodial measures, such as reporting requirements or an affordable 3.c Immigrants should be advised of the bond, are always explicitly considered release options available to them and how before resorting to detention. Reporting to access them. requirements should not be unduly onerous, invasive or difficult to comply with, especially for families with children and those of limited 4. financial means. Conditions of release should the adoption of enforceable human rights be subject to judicial review. detention standards in all detention facilities The US government should ensure that house immigration detainees, either 3. through legislation or through the adoption The US Congress should pass of enforceable policies and procedures by legislation to ensure that all immigrants and the Department of Homeland Security. There asylum seekers have access to individualized should be effective independent oversight to hearings on the lawfulness, necessity, and ensure compliance with detention standards appropriateness of detention. and accountability for any violations. 3.a 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.” 9 Detained immigrants inside the meal room at a facility in California. ©Steven Rubin. 10 JAILED WITHOUT JUSTICE Immigration Detention in the USA 2 IMMIGRANTS’ RIGHTS ARE HUMAN RIGHTS 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 As a general rule, Amnesty International is Political Rights (ICCPR) clearly sets out the right opposed to the use of detention for the purposes to be free from arbitrary detention.32 of migration control. Everyone has the right to liberty and security of the person, including the Detention should only be used as a measure of last resort; it must be justified in each individual protection from arbitrary arrest and detention, case and be subject to judicial review. Detention regardless of legal status. Detention of migrants is only appropriate when authorities can will only be lawful when the authorities can demonstrate in each individual case that it is demonstrate in each individual case that it is necessary and proportionate to the objective necessary and proportionate to the objective being achieved, that alternatives will not be being achieved and on grounds prescribed by law, and that alternatives (such as reporting requirements, bail or financial deposits) would effective, that it is on grounds prescribed by not be effective. The U.N. Working Group on law, and where there is an objective risk of the Arbitrary Detention has called on governments person absconding. to ensure that “alternative and non-custodial measures, such as reporting requirements, should always be considered before resorting All immigrants irrespective of their legal status, to detention.”33 have fundamental human rights, including the right to liberty and freedom from arbitrary detention. 31 International standards, including A limited number of specific purposes are recognized as legitimate grounds for detention instruments to which the United States is a under international standards, including verifying party, contain a strong presumption against the identity, protecting national security or public detention of immigrants and asylum seekers. For order, and preventing a person from absconding example, the International Covenant on Civil and following an objective assessment of flight risk.34 11 The U.N. Human Rights Committee has stated serious criminal offenses, can raise human that detention is arbitrary if no consideration is rights concerns, for example, when a person given to the necessity of detaining an individual has spent the majority of his or her life in their and that detention should not continue beyond country of residence and has no meaningful links the period for which a government can provide with the country of origin, when it results in family appropriate justification.35 The U.N. Working separation or when it places a person at risk of Group on Arbitrary Detention has explicitly torture or other serious human rights violations.40 stated that where the detention of unauthorized Under the International Covenant on Civil and immigrants is mandatory, regardless of their Political Rights (ICCPR), the Convention against personal circumstances, it violates the prohibition Torture,41 and customary international law,42 the of arbitrary detention in Article 9 of the Universal United States government is under an obligation Declaration of Human Rights (UDHR) and not to return individuals to a situation in which Article 9 of the International Covenant on Civil he or she would be at risk of torture or other and Political Rights.36 International law requires serious human rights abuses: the principle of that any person detained should be provided non-refoulement. with a prompt and effective remedy before an independent judicial body to challenge the 37 The United States is party to the 1967 Protocol decision to detain him or her, and that every Relating to the Status of Refugees which sets decision to keep a person in detention should out the rights of refugees seeking protection and be open to review periodically.38 is a follow up to the 1951 Convention Relating to the Status of Refugees. However, it is not International law and standards also require that yet party to the International Convention on the the conditions of detention are humane and that Protection of the Rights of All Migrant Workers the human rights of detainees are respected. and Members of their Families which came into Fundamental human rights while detained include force on July 1, 2003. The Migrant Workers protection against torture, cruel, inhuman or Convention recognizes the human rights of all degrading treatment; access to medical care; migrant workers and their families regardless of exercise; and the ability to communicate with the their legal status in the host country, including outside world including consulates, attorneys the right to liberty43 and to adequate conditions and family.39 of work.44 Amnesty International calls upon the US government to sign and ratify the Migrant Immigrants and asylum seekers subject to deportation are also entitled to procedural safeguards including the ability to challenge the decision to deport, access to legal counsel and interpretation services, and access to a review— ideally a judicial review—of a negative decision. Deportation of non-nationals, including those who have been charged with or convicted of 12 Workers Convention. JAILED WITHOUT JUSTICE Immigration Detention in the USA 3 RIGHT TO REVIEW OF DETENTION AND OPTIONS FOR RELEASE “SOMETIMES I WANTED TO GIVE UP BECAUSE I COULDN’T DEAL WITH WHAT I WAS GOING THROUGH.” Amnesty International interview with former immigration detainee and torture survivor who was granted asylum (identity withheld), June 2008. Mr. N, a Buddhist monk from Tibet, fled to the of custody review, if any, that is available to detained US after he had been arrested, incarcerated, immigrants. The type of custody review available and tortured twice on the basis of his religious beliefs and political expressions in support of depends on whether someone was apprehended at the border or within the United States and whether or not he or she has been convicted of certain crimes. Tibetan independence. He arrived in New York and was immediately placed into immigration In some cases, the continued detention of individuals detention. Mr. N’s attorney filed a parole may amount to arbitrary detention in contravention application that included an affidavit from a of international law. There is an urgent need to member of the American Tibetan community who pledged to provide Mr. N lodging and ensure his appearance at any hearings. During Mr. N’s ensure that all individuals subject to immigration detention receive a custody assessment that complies with international law to avoid the arbitrary detention of immigrants and asylum seekers. ten-month detention, the government provided no response to this request, and Mr. N was never given the opportunity to argue for his release Amnesty International found that the detention of immigrants and asylum seekers puts considerable pressure on individuals to abandon potentially before a judge. Mr. N was granted permission valid claims to remain in the United States. to remain in the US in September 2007.45 Amnesty International’s findings indicate that immigrants can be detained in the United States for 3.1 IMMIGRANTS AND ASYLUM SEEKERS DETAINED AT THE BORDER months or years without any form of meaningful individualized review of whether their detention is Individuals arriving at US borders without proper necessary. There is a lack of uniformity in the type documentation may be detained for months, and 13 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. in some cases years, and are not entitled to any “AS FAR AS POSSIBLE, THE DETENTION OF FOREIGNERS WHO ENTER THE COUNTRY WITHOUT THE NECESSARY VISA OR WHO REMAIN IN THE COUNTRY ONCE THEIR VISA HAS EXPIRED SHOULD BE AVOIDED.” form of detention review by an immigration judge. Under US law, all individuals apprehended at the border “shall be detained” pending deportation proceedings.47 This includes asylum seekers fleeing persecution who arrive at the US border seeking protection,48 and in some instances it also includes lawful permanent residents who left the United States and may find themselves barred from re-entry.49 US law does provide that these individuals may be released on parole on a case-by-case basis for “urgent humanitarian reasons” or for “significant public benefit” where the individual presents neither a security risk nor a risk of absconding.50 UN Working Group on Arbitrary Detention46 14 In practice, an individual immigration officer (ICE Field Office Director) decides whether someone is released from detention and the conditions of any JAILED WITHOUT JUSTICE Immigration Detention in the USA such release, such as the amount of bond to be posted or reporting requirements. Previously, guidelines provided for the release Mr. A fled to the USA from India in 1999 after being of asylum seekers who satisfied certain criteria, severely tortured and jailed including establishing identity and community multiple times due to his ties. However, in November 2007, ICE issued political activities. In more restrictive guidelines that limited the ability of asylum seekers to receive parole.51 Department of Justice regulations specifically state that 2006, he was arrested and detained by ICE and required immigration judges do not have jurisdiction to pay a $15,000 bond. His to review decisions made by ICE Field Office wife contracted with a bail Directors involving individuals apprehended at bondsman to pay the bond and the border.52 Mr. A applied for asylum. The discretionary nature of the parole decision Over two years he appeared making process means that an individual’s regularly for all immigration chances of release may depend entirely on court hearings, but at the where he or she is detained. Rates of release end of a hearing in which of individuals seeking asylum range from 4 he had testified for hours percent in Newark, New Jersey to 98 percent in Harlingen, Texas in 2004.53 Advocates told Amnesty International that some ICE offices have about the torture he suffered in India, he was again arrested unwritten “no release” policies, rendering the ICE and detained by ICE. At a officer’s review meaningless. bond hearing before an immigration judge he was The parole process concentrates extraordinary power in the hands of individual ICE officers and lacks effective oversight and review, in ordered released upon payment of an $80,000 bond. Mr. A’s contravention of international human rights family and friends pooled standards. To protect against arbitrary decisions their resources, using and the abuse of discretionary power, all decisions credit cards and their homes regarding the use of detention, as well as as collateral in order to alternatives to detention, must be subject to review by a judicial or other competent and independent authority. secure his release. Mr. A was eventually granted asylum protection. 3.2 IMMIGRANTS AND ASYLUM SEEKERS APPREHENDED INSIDE THE UNITED STATES A different set of rules applies to individuals Amnesty International interview with a former immigration detainee apprehended within the United States. US (identity withheld), law provides for the release of all persons June 2008. apprehended inside the United States, on a minimum bond of $1,500 or on conditional 15 Samuel Komba Kambo ©AP Photo/Gloria Ferniz. parole, as long as he or she is not subject to some immigration judges may not be aware of all mandatory detention on certain criminal or of the release options that are available to them.55 terrorism-related grounds.54 An individual ICE Field Office Director again makes the initial 3.2.1 Immigration judge review decision regarding whether someone remains in In order to be considered for release, an detention or is released. In these cases, however, immigrant or asylum seeker must show that he or individuals may ask for a review by an immigration she does not present a danger to persons or judge. This review is not automatic – an individual property, is not a threat to national security, and detainee must request it. People who do not have does not pose a flight risk.56 After the initial representation or other assistance may not even custody and/or bond determination by ICE, an realize that it’s possible to make such a request, immigrant detained within the United States may and so lose one of only a few options for securing challenge this decision and apply for a bond release from detention. re-determination before an immigration judge.57 If an individual is eligible for release on bond, an Reports to Amnesty International indicate that immigration judge may consider factors such as increasingly, immigration judges are not releasing employment history in setting the amount of bond. people on bond; that in many cases the bond 16 is set too high; and even if bond is granted and According to the Executive Office for Immigration an immigration judge orders an individual to Review (EOIR), in 2006 immigration judges in the be released, immigration authorities have the United States declined to set a bond in 14,750 authority to invoke an “automatic stay,” which cases. In 2007, that number increased to 22,254, means that an individual remains in detention and in the first five months of 2008 immigration pending a lengthy administrative review process. judges had already refused to set bond in 21,842 In addition, Amnesty International found that cases.58 Estimates of the number of bond cases JAILED WITHOUT JUSTICE Immigration Detention in the USA heard each year vary considerably; for example, pending review by the Board of Immigration EOIR data provided to Amnesty International Appeals (BIA), which determines whether the said that 273,139 bond decisions were made immigration judge properly set bond. Amnesty in 2007,59 but the Office of Planning, Analysis, International was told by advocates that in some and Technology reported in its annual statistical jurisdictions, ICE routinely denies bond so that it update that just 42,171 bond re-determination may later invoke this “automatic stay” authority. hearings were completed. 60 Thus, it is impossible to assess the percentage of people being denied 3.2.2 Exorbitant bonds bond out of the total number of those requesting Even in those cases in which an immigration a bond redetermination. It is important that judge sets bond, immigrants and asylum seekers comprehensive and accurate data is collected are often unable to secure release because they and made public. are unable to pay the bond. If they do, they may find themselves and their families in significant debt due to exorbitant bonds. If an immigration Sam Kambo, married with four US citizen children, judge declines to release someone on his own had been living in the United States for 12 recognizance, the minimum bond that may be years and was applying to become a lawful permanent resident, when he was detained in set by an immigration judge is $1500,63 but bonds are regularly set at much higher rates. Across the United States, the average immigration October 2006 by immigration authorities and bond is $5,941.64 In New York, the average is charged with taking part in politically motivated $9,831, and in at least eight other jurisdictions executions in his native Sierra Leone. In June the average is over $6,000. One immigration 2007, an immigration judge found that there judge told Amnesty International that he always was “no credible evidence” to tie him to crimes sets the bond of Chinese nationals who are believed to have been smuggled into the US at in Sierra Leone and ordered him released from $25,000.65 Decisions related to bond should not immigration detention on bond; however, ICE be based on an individual’s nationality or manner immediately appealed this determination and of entry. They should be based on an individual’s Mr. Kambo remained in detention. “Where’s specific circumstances and whether the person Papa going?” Seth Kambo (aged 4) asked as his father was led back to jail in handcuffs. A US presents a flight or security risk. Unauthorized immigrants work for wages that are District Court judge finally ordered immigration often below the national average and like many authorities to release Mr. Kambo in October families in the United States, immigrant families 2007 nearly one year after he was first taken struggle to pay bills and support themselves.66 into detention. The US government has appealed Many immigrants told Amnesty International that they were unable to pay bonds and were forced his release.61 to use bail bondsmen, who regularly charge 15 percent to 20 percent of the bond amount.67 Even when an immigration judge has ordered This fee is paid up front or in monthly increments. someone released, ICE may continue to keep Even when an immigrant wins a case before the that person in detention. ICE retains the authority immigration court, it may take months for ICE to to “automatically stay” an immigration judge’s prepare the paperwork needed to be released decision if an ICE officer initially denied bond from a contract with a bail bondsman. In the or set a bond of at least $10,000. 62 This means that the person concerned remains in detention meantime, the immigrant is required to continue making interest payments. 17 Having a lawyer can impact whether or not an for certain crimes, including minor, non-violent individual remains in detention while his or her crimes (such as receiving stolen property) case is ongoing. For example, one study committed years ago. These individuals are conducted in New York City found that the subjected to mandatory detention when they likelihood of having a lower bond set by an are placed in deportation proceedings and immigration judge was increased if an individual do not receive any form of custody review. was represented by an attorney. 68 Many individuals who did not serve any time in prison for their offenses find that they are immediately locked up and are not entitled to any An immigration judge in New York set a individualized determination as to whether they $30,000 bond for a man whose mother is a US pose a danger or a flight risk that would justify citizen. He had lived in the US since 1992, maintained a good employment record, and had their detention pending deportation proceedings. It is believed that thousands of individuals are subject to mandatory detention every year: the no known criminal charges. He was not exact number of people impacted is not known as represented by an attorney at the bond hearing the DHS does not publish this data.74 and waived his right to appeal.69 In 1996 the US significantly expanded the While there is nothing in the Immigration and categories of individuals who would be subject to Nationality Act or regulations that would preclude mandatory detention to include a person convicted immigration judges from releasing individuals of a variety of crimes, including non-violent without a monetary bond (for example, releasing misdemeanor convictions without any jail someone on his or her own recognizance), a number sentence, and anyone considered a national of attorneys told Amnesty International that security or terrorist risk.75 If already in the United immigration judges will not do so as a general States, a person is subject to mandatory detention rule. 70 Indeed, a number of immigration judges if he or she is suspected of being a national with whom Amnesty International spoke expressed security or terrorism concern, or is charged under confusion about whether or not they had the immigration law with two “crimes involving moral authority to release someone without monetary turpitude,” an “aggravated felony,” a firearms bond.71 Information provided to Amnesty offense, or a controlled substance violation. If he International by the Executive Office for Immigration or she is “seeking admission” into the US, even Review, however, indicates that immigration judges do have this authority. For example, immigration courts released 2,442 people on their own recognizance in 2006 and 3,066 people in 2007.72 There are, however, wide regional variations: immigration courts in Houston, Texas, for example, released 462 people without monetary bond in 2006, whereas immigration courts in New York City and Las Vegas released no one on this basis.73 3.3 MANDATORY DETENTION Immigrants–including those who have lived in the US for most of their lives - can be deported 18 “CAN YOU PLEASE BRING MY DAD HOME?” David age 7 in a letter to immigration court, after not having seen his lawful permanent resident father for over four years. JAILED WITHOUT JUSTICE Immigration Detention in the USA A child in Georgia, 2 years old, who was born a U.S. citizen. His father was deported to Mexico, and his mother fled when ICE raids began in her state. ©AP Photo/Stephen Morton. as a lawful permanent resident, he or she is constituted two crimes of moral turpitude, a subject to mandatory detention if charged under decision that led to his deportation.78 immigration law with one crime involving moral turpitude, prostitution, domestic violence, or if he or she has received any number of criminal Trevor Drakes, a native of Guyana, came to sentences totaling five years or more.76 the United States when he was 11 years old. A lawful permanent resident, he was arrested The terms aggravated felony and crime involving moral turpitude are broad and confusing and after signing traffic tickets using a false subject to constant interpretation by the immigration name and later pleaded guilty to two counts courts, Board of Immigration Appeals, and the of forgery. On March 2, 1999, he was sentenced federal courts. As a result many individuals to two years of imprisonment, which was are detained for years while courts determine suspended for time served, followed by two whether a prior criminal conviction is actually a “crime involving moral turpitude or an aggravated felony” and as such a deportable offense. years of probation. He was then transferred into immigration detention. His case went through Mistakes are common, and in the meantime, several appeals, but on February 20, 2001, individuals incorrectly subject to mandatory the Third Circuit Court of Appeals affirmed detention have no opportunity for release.77 that his convictions were aggravated felonies under immigration law and that he should A 37-year-old lawful permanent resident, who be deported.79 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 While a person can challenge whether he is properly included in a mandatory detention category, it is his burden to demonstrate that ICE is “substantially unlikely to establish” the charge 19 of deportability.80 Unlike other areas of US law, it citizenship; due to a lack of due process is the detainee’s burden to demonstrate that he protections guaranteed under international law. should not be deprived of his liberty rather than US citizenship is a particularly complex and the government’s burden to demonstrate that constantly changing area of immigration law and detention is necessary and proportionate. This detainees must prove their own US citizenship.85 inversion generally supports mandatory detention, While this may sound straightforward, in many because most individuals in detention have no cases it is not, in particular for detainees who legal representation and face considerable cannot obtain assistance with the retrieval of challenges in developing their own legal arguments in a complex and ever-changing field of law. 81 required documents. For example, citizens born at home with the assistance of midwives do not have a hospital record of birth, and therefore their Amnesty International found that some US citizens location of birth is questioned by ICE attorneys.86 and lawful permanent residents are incorrectly ICE deported a mentally disabled US citizen to subject to mandatory detention, and spend months Mexico in 2007. It took his mother months to or years behind bars proving they are not locate him and secure his re-entry into the US.87 deportable from the United States. According to Amnesty International’s research, at least 117 individuals have been held in mandatory detention Mr. W., a US citizen, was placed in immigration on the basis of crimes that were ultimately detention in Florence, Arizona. According to determined not to constitute an aggravated felony offense for which they could be deported.82 the Florence Immigrant and Refugee Rights Project, he was born in Minnesota and had Because these cases can take years to resolve never left the United States in his life. Because and wreak havoc on families, attorneys and he was detained, he did not have access to his detainees told Amnesty International that birth certificate, and was working in the prison mandatory detention often results in the decision kitchen for a dollar a day to earn the thirty to give up the fight to remain in the United States, even when relief from deportation is available. The US mandatory detention system, which provides for the automatic detention of individuals, amounts dollars it would cost to order a copy of his birth certificate. Mr. W. was finally released after being detained for over a month.88 to arbitrary detention, and is in violation of international law, which requires that detention be An unknown number of US citizens are detained justified in each individual case and be subject and deported each year. In 2007, legal service to judicial review. 83 providers identified 322 individuals in detention with potential claims for US citizenship.89 3.3.1 People who should not be in detention at all but are subject to mandatory detention B. Foreign Nationals Who Are Not Deportable Lawful permanent residents,90 many of whom 20 A. US Citizens have been residents in the United States for years The immigration detention of US citizens cannot or even decades, may be subject to mandatory be justified on any legal basis and is therefore detention. They may spend months and years arbitrary under international law. However, behind bars while attempting to prove the crimes immigration judges, advocates and detained for which immigration authorities are seeking immigrants interviewed by Amnesty International to deport them, may not actually be deportable reported cases of US citizens being detained offenses. The immigration detention of lawful for months while they try to prove their permanent residents who are not deportable JAILED WITHOUT JUSTICE Immigration Detention in the USA Y.S., a 34-year-old US citizen, spent seven months in immigration detention fighting deportation. ICE reportedly determined that the detention was mandatory because he had been convicted of a controlled substance violation and could not be released unless he proved his citizenship. At an interview with immigration officials that lasted more than three hours, Y.S.’s mother broke down crying and could not remember whether he had been born in the morning or evening. Immigration authorities were not satisfied that they were related and ordered the family to undergo DNA testing, which cost several hundred dollars, money the family had to scrape together. ICE finally released Y.S. in October 2007, recognizing that he was a US citizen and terminating deportation proceedings. He told Amnesty International that without a pro bono attorney, he would have given up and been deported to Thailand.84 Amnesty International interview with former immigration detainee (identity withheld), June 2008. 21 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. 22 JAILED WITHOUT JUSTICE Immigration Detention in the USA cannot be justified on any legal basis and is to demonstrate why the person is subject to therefore arbitrary under international law. mandatory detention. Courts routinely allow ICE attorneys to postpone and reschedule hearings Individuals seeking protection through asylum or Convention against Torture claims 91 may be in order to establish the needed burden of proof, causing unacceptable delays and prolonged caught in the mandatory detention system even detention. Because of the pressure on individuals though under international law, they cannot created by mandatory detention, some judges be deported if it would place them at risk of accept an individual’s decision to be deported persecution, torture or other serious human without proper examination of the evidence, rights violations. These individuals may spend leading to deportation of individuals with months or even years in detention as they fight potentially valid claims. for protection. At an immigration hearing Amnesty International observed in New York, a man stated that he Huyen Thi Nguyen, a 63-year-old Vietnamese wanted to take an order of deportation rather than woman, was placed in deportation proceedings fight his case in detention. He was the father of a and detained by immigration authorities after she was convicted of food stamp fraud. She newborn baby and a lawful permanent resident. The immigration judge told him that because ICE could not meet its burden of proof that day, he spent 16 months in jail fighting deportation, could not deport him. Instead, he would have afraid to return to Vietnam because she had to wait for a month in detention while ICE came been imprisoned there for four years as a up with new documents to deport him. “In the political prisoner. She was held in a facility interest of justice,” the ICE attorney agreed to thousands of miles away from her 72-year- write up new documents so that the man could be ordered deported immediately. old husband, a US citizen. An immigration judge determined she was neither a flight risk At hearings Amnesty International observed in nor a danger to the community and should be San Francisco in June 2008, in several cases ICE released on bond, but ICE appealed the decision had no documents to support the grounds that and denied her release. Ms. Nguyen was finally triggered mandatory detention and deportation. Even though ICE could not meet its burden of proof, released when a District Court judge granted her habeas petition.92 three individuals without legal representation accepted orders of deportation rather than remain in detention. The judge accepted their oral C. The Burden of Proof: Are People testimony to establish a criminal conviction.94 Actually Deportable? Immigration lawyers reported that deportations Reports to Amnesty International, as well as such as these, in which the government cannot hearings observed by Amnesty International, meet its burden of proof, are commonplace indicate a pattern in which ICE is not always particularly among those without attorneys. One prepared for court with necessary documentation immigration lawyer told Amnesty International substantiating the alleged criminal conviction “This is normal…it’s lethal to due process.” to demonstrate that someone is deportable and subject to mandatory detention. Although As expansive as the “crimes involving moral it is ICE’s burden to prove that a person is turpitude” and “aggravated felony” categories are, deportable by “clear, unequivocal and convincing ICE does not have to charge a person with one of evidence,”93 sometimes ICE is not even prepared these grounds for him to be subject to mandatory 23 detention. Instead, ICE can simply argue orally in of Homeland Security, Office of the Inspector court that an individual has a criminal conviction General report also reached this conclusion and that qualifies him for mandatory detention.95 While made recommendations to ensure that custody it’s likely most immigration courts would require reviews are meaningful and occurring regularly. that ICE submit some proof, they will usually grant According to a study conducted by Catholic Legal an adjournment allowing immigration authorities Immigration Network, ICE’s compliance with and more time to secure the conviction documents, implementation of the custody review rules are leaving the immigrant in detention while ICE not uniform throughout the United States nor establishes whether or not it can secure the within individual ICE field offices. The organization relevant documents. found that inconsistent internal record-keeping of detainees’ length of detention, failure to conduct custody reviews during the mandated time 3.4 INDEFINITE DETENTION frame, and lack of communication and access to information for detainees to comply with removal Amnesty International is concerned that contribute to prolonged or indefinite detention.99 immigrants and asylum seekers who have been through removal proceedings and ordered deported from the United States are languishing Volsaint Doissaint was granted asylum and indefinitely in immigration detention, in became a lawful permanent resident in 1995. contravention of domestic and international law and standards. These individuals remain in immigration detention despite the fact that they Volsaint was convicted of second-degree assault in 2000 and served 70 months in prison, expecting cannot be removed from the United States because that he would be released thereafter. Instead, he they are from countries with which the United was held in immigration detention for three years States does not have diplomatic relations or and denied the opportunity to contest his whose home country will not accept their return. detention while fighting deportation to Haiti. Immigrants who are deemed removable from the United States must be deported within a period of 90 days.96 ICE may detain immigrants during this “removal period.” 97 The US Supreme Court has ruled that if an individual is detained longer than 90 days, ICE is required to conduct ICE failed to adhere to its own custody review procedures by failing to review documents supporting his request for release and by failing to notify his lawyer about the decision. On August 26, 2008, the US District Court granted Volsaint’s petition for writ of habeas corpus; found a custody review to determine if the individual is a flight risk or danger to national security.98 If the that the failure of ICE to provide him with individual remains in detention six months after adequate opportunity to contest his detention in the removal order has become final, another his custody reviews constituted a denial of his detention review is to be conducted. Once it right to due process; and ordered that he is entitled is determined that removal is not reasonably to a bond hearing before an immigration judge.100 foreseeable, the regulations require the individual to be released under conditions of supervision. A detention review should take place at the outset 24 Immigration advocates, however, reported to in order to justify that detention is necessary and Amnesty International that regular custody proportionate, and all decisions to keep someone reviews are not taking place. A 2007 Department in detention should be open to periodic review JAILED WITHOUT JUSTICE Immigration Detention in the USA A Colombian asylum seeker at Krome Detention Facility in Florida. ©Steven Rubin. and be subject to judicial review. The United half years of immigration detention upon arrival States must act immediately to address this in the United States in October 2001. She was serious violation of human rights. granted asylum in 2004. However, immigration authorities appealed the decision, and Ms. 3.5 RIGHT TO HABEAS CORPUS REVIEW Thangaraja remained in detention. She was finally released in March 2006 after filing a Individuals can seek release from detention habeas petition. Despite posing no danger by filing a petition for a writ of habeas corpus to the community and demonstrating a (a procedure that requires authorities to justify commitment to pursuing her asylum claim, a person’s detention) in a federal court. However, it is difficult to do without an attorney who can assist with this complicated process. The majority of immigration detainees are not represented by Ms. Thangaraja was never given a custody hearing during the four and a half years she was detained.101 an attorney. The few who are able to pursue this option may nevertheless be subject to prolonged detention for years before they are released. Saluja Thangaraja fled the brutal beatings and torture that she suffered during the Sri Lankan civil war only to endure more than four and a 25 A detained immigrant in a detention facility in Washington state. ©Steven Rubin. 26 JAILED WITHOUT JUSTICE Immigration Detention in the USA 4 ALTERNATIVES TO DETENTION “MY BABY WAS DELIVERED WHILE I WAS IN PRISON … I MISSED THE BIRTH OF MY CHILD AND, I’LL NEVER GET THAT BACK.” Amnesty International interview with former immigration detainee (identity withheld), June 2008 Governments are obliged by international law to Alternatives to detention have been shown to be ensure that alternatives to detention are made effective and significantly less expensive than available to immigrants and asylum seekers, in holding people in immigration detention in the both law and in practice. Alternatives to detention, United States. A study of supervised release such as conditional release, reporting requirements, conducted by the Vera Institute in New York bond, or financial deposits, should always be yielded a 91 percent appearance rate at an considered before resorting to immigration detention. estimated cost of just $12 per person per day.104 Indeed, in order to establish that detaining The US Congress has recently increased funding an individual is necessary and proportional, to explore alternatives to detention however governments must first consider less restrictive concerns have been raised that ICE is using these alternative measures.102 funds for programs such as electronic monitoring to supervise individuals who are eligible for Governments must take into account the particular release rather than for individuals who would situations of immigrants to ensure that the conditions otherwise be detained.105 or criteria of each alternative do not discriminate in law or practice against particular groups of ICE currently operates two supervised release non-nationals, whether on the basis of their origin, programs; the Intensive Supervision Appearance economic situation, immigration, or other status. Program (ISAP) and the Enhanced Supervision/ Only that measure that interferes least with the Reporting (ESR) Program. In 2004, ICE human rights of the individual concerned should be implemented ISAP as a pilot project in a handful used, and only where no less intrusive or restrictive of cities nationwide. The program, which is means can be used to reach the same objective. run through a private contract with Behavioral To safeguard against arbitrariness, a right to Interventions, Inc., uses electronic monitoring appeal or review by a judicial or other competent devices (bracelets), check-in by telephone, home and independent authority must be available.103 visits, and restrictions on movement to 27 A detained immigrant visits with his son and family members in a California detention center. ©Steven Rubin. make sure that an individual complies with his While alternatives to detention should be made or her conditions of release and shows up for more widely available and easier to access, immigration court proceedings.106 The ESR Amnesty International does have concerns Program was introduced in 2007 and uses that such programs may be used in ways that several of the same procedures as ISAP, as well violate immigrants’ human rights. The placing as additional supervisory tools like residence of electronic tagging devices on immigrants who verification, but it does not include ISAP’s are not considered security threats or flight risks collaboration with community resources. Currently, is a disproportionate infringement upon their ISAP and ESR (with full reporting) can supervise right to liberty, as well as their rights to privacy 6,000 and 7,000 individuals, respectively. This and human dignity. In considering alternatives to is approximately 5 percent of the detentions ICE immigration related detention, authorities should initiates each year. 107 In addition to the supervised release programs, ICE utilizes “electronic monitoring only” as an alternative to detention. According to ICE, this option has no enrollment limit and is deployed nationwide. Currently more than 5,400 immigrants are enrolled and monitored in this manner.108 28 use the least restrictive means necessary. JAILED WITHOUT JUSTICE Immigration Detention in the USA 5 CONDITIONS OF DETENTION “[A]CCESS TO LEGAL COUNSELING AND REPRESENTATION … IS OF EXCEPTIONAL IMPORTANCE.”111 UN Working Group on Arbitrary Detention Immigrants and asylum seekers detained Amnesty International documented pervasive during removal proceedings are held under problems with respect to conditions of detention, US law in administrative custody. International such as the commingling of immigration detainees standards require that administrative detention with criminal detainees, inappropriate and should not be punitive in nature.109 However, excessive use of restraints, inadequate access to in reality, conditions of detention frequently healthcare including mental health services, and violate fundamental human rights. Immigration inadequate access to exercise for ICE detainees. detainees are often detained in jail facilities with Problems related to conditions of detention barbed wire and cells, alongside those serving have also been documented by US government time for criminal convictions. They are not able agencies, including the Department of Homeland to wear their own clothes but instead wear prison Security’s Office of Inspector General and the US uniforms and are often handcuffed. Government Accountability Office.110 Amnesty International documented significant In September 2008, ICE announced the barriers for immigrants to accessing assistance publication of 41 new performance-based and support while in detention. Such issues detention standards to be implemented over 18 included lack of access to legal counsel and other months. These will take full effect in all facilities forms of assistance in detention such as “know housing ICE detainees by January 2010. These your rights” presentations, lack of access to and standards, if effectively implemented, will improve inadequate resources related to law libraries and conditions for immigration detainees. However, legal materials, failure to provide immigration Amnesty International is concerned that they specific detainee handbooks, inadequate are not legally enforceable and do not provide access to telephones, lack of translation and adequate sanctions for violations. interpretation services, and frequent transfers between facilities which undermines detainees’ ability to access to legal counsel and relatives. 29 5.1 ACCESS TO ASSISTANCE AND SUPPORT: SAFEGUARDS RELATING TO DETENTION According to the US Department of Justice, 58 percent of individuals in deportation proceedings do not have a lawyer during removal The ability to access the outside world is an proceedings.115 However, for detained immigrants important safeguard against arbitrary detention; that figure rises to 84 percent.116 however, Amnesty International found that immigration detainees in the US face considerable barriers in communicating with anyone outside Amnesty International observed hearings in the detention facility and accessing assistance. California in June 2008 during which a man confirmed before an immigration judge that 5.1.1 Access to lawyers upon arrival in the United States, he had stated Every detained person has the right to the assistance of legal counsel. International law that he was afraid to return to his home country. provides that if the interests of justice require After being incarcerated in a county jail pending it, legal assistance should be assigned without removal proceedings, he retracted his fear of payment if the person does not have sufficient return and agreed to be deported. He did not means to pay for it.112 In the United States, individuals in deportation proceedings have the have a lawyer during these proceedings. “privilege” to secure counsel but at no expense to the government.113 This means that if an Historically, the Board of Immigration Appeals individual cannot afford an attorney, one will and federal courts had long recognized and not be appointed. As a result, the majority of protected the right to effective counsel.117 Yet on immigrants in detention are unrepresented. 114 January 7, 2009, just days before the end of his Detained immigrants from Vietnam, Laos and Cambodia at a detention facility in California. The United States only established repatriation agreements with Cambodia in 2002 and Vietnam in 2008; until these agreements, immigrants slated for deportation to those countries languished in indefinite detention. The United States still does not have an agreement with Laos. ©Steven Rubin. 30 JAILED WITHOUT JUSTICE Immigration Detention in the USA term, Attorney General Michael Mukasey issued a decision declaring that no one in immigration court has the right to effective counsel because there is no statutory or constitutional right to counsel. What this means is that an immigrant may have no remedy if an attorney makes an error that affects his or her case.118 For example, if an attorney misses a deadline to file an application for permanent residence on behalf of a US citizen’s spouse, an immigration judge can order the spouse deported. While in the past an application to reopen the case could be made due to the ineffective assistance of their attorney, now it will be almost impossible to rectify this mistake. Representation by legal counsel can have a significant impact on the outcome of an individual’s case. Unrepresented individuals may unknowingly give up valid claims that would allow them to remain in the United States legally. One study found that individuals are five times more likely to be granted asylum if they are represented.119 Immigration courts are obligated to provide a list of pro bono and low cost non-governmental organizations and attorneys to unrepresented immigrants.120 However, immigrants and lawyers told Amnesty International that these lists are frequently unhelpful. Reportedly many and sometimes all of the organizations on the lists do not accept collect calls. Others may only take cases involving individuals of a specific ethnicity, “IF I DIDN’T HAVE A LAWYER I’D BE IN BRAZIL. I’D BE A DEAD PERSON.” Amnesty International interview with a formerly detained asylum seeker T. is a 29-year-old lawful permanent resident with a 2-year old US citizen son. She was adopted by a US couple at 14, after suffering physical and psychological abuse during her childhood in Russia. In September 2007, she was placed in removal proceedings after serving a threemonth criminal sentence. She represented herself in immigration court, seeking to prove she was a US citizen. She told Amnesty International that it was very hard for her to complete the appellate briefs and meet deadlines because she had infrequent computer access and had to write all of the necessary documents by hand, in triplicate. Despite her efforts, she lost her fight to remain in the United States and is currently awaiting deportation to Russia. As of January 2009, she has been held in immigration detention for more than a year. Amnesty International interview with an unrepresented immigration detainee (identity withheld), June 2008. (identity withheld), June 2008. 31 only represent asylum seekers, or do not accept Rights Programs provided by non-governmental cases where individuals are detained. Amnesty organizations. Under international law it is the International researchers observed a New York government’s obligation to ensure that any person immigration judge who, after reviewing the subject to detention be provided with information entire list, admitted to a detainee that only one about his or her rights, including how to avail organization the Legal Aid Society might be able himself or herself of such rights.123 to take his case. 121 The few available programs that provide free assistance are often unable to Law Libraries meet the high demand for services and must turn As so many individuals have to represent away the majority of those who seek their help. themselves in immigration court, access to a In the California Bay Area, just two programs law library with immigration-related materials represent detainees on a pro bono basis, the is imperative in order to navigate the complex Asian Law Caucus and the University of California immigration system and adequately bring a claim at Davis Immigration Law Clinic. “It’s impossible for relief. ICE Detention Standards state that to handle the volume. We have a stack of 100 facilities should provide detainees with access to letters we can’t even respond to,”122 a lawyer a law library and legal materials for a minimum of from the clinic told Amnesty International. Many five hours per week.124 The libraries must contain a detention centers are in rural areas, contributing specified list of immigration-related legal resources, to detainees’ difficulty in accessing counsel. and should be updated regularly. Amnesty International spoke to several former and current detainees who said they had only limited access “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. to the law library for example, one individual reported that he could usually only go to the library once a week and that requests for access often depended on the “mood of the guards.” Detainees also told Amnesty International that the law library didn’t contain immigration-related material or that materials were outdated or not available in the languages they needed. Know Your Rights presentations According to ICE detention standards, nongovernmental organizations may conduct “Know Your Rights” presentations for immigration detainees. However, detainees may not have access to these presentations because non- 32 5.1.2 Access to information and other forms of assistance in detention governmental organizations may lack the necessary People in immigration detention often have to to travel to detention centers in remote locations. represent themselves in immigration proceedings Amnesty International spoke with 11 current and have limited resources to assist them in immigration detainees in California, none of whom understanding the complex immigration system reported receiving a presentation even though two and what claims might be available to them. of them had been detained for over eight months. Some of the obstacles that individuals face Indeed, the warden of the Santa Clara County include limited access to law libraries and legal Jail, California, told Amnesty International that the materials, and to Legal Orientation and Know Your facility does not allow such presentations at all. resources to conduct them, or may not be able JAILED WITHOUT JUSTICE Immigration Detention in the USA Handbooks ONE DETAINEE TOLD AMNESTY INTERNATIONAL, “NO ONE ELSE IN DETENTION SPEAKS MANDARIN.” SHE LOOKS UP WORDS IN AN ENGLISH DICTIONARY AND WRITES THEM DOWN TO TELL GUARDS WHAT SHE NEEDS. ICE guidelines state that facilities should give each detainee a handbook that provides an overview of the rules and procedures at the facility, as well as a copy of the ICE National Detainee Handbook, which contains information regarding detainees’ rights under the ICE detention standards and other related information such as the right to contact consular officials, and the right to make free calls to pro bono legal service providers. Several detainees Amnesty International spoke with in California reported that they did not receive any handbook at all, while others received a facility handbook but nothing specific to immigrants. A number of detention facilities Sacramento County Jail and Santa Clara Amnesty International interview County Jail, California; Palm Beach County Jail with a detained asylum seeker and Monroe County Jail, Florida; Ulster County (identity withheld), June 2008. Jail, New York; Butler County Sheriff’s Office, Ohio; Yamhill County Jail, Oregon; Lackawanna County Prison, Pennsylvania; Arlington County Some detainees may have the opportunity to Detention Facility, Virginia told Amnesty access the federally funded Legal Orientation International that they do not provide an ICE Program. The EOIR contracts with non- National Detainee Handbook. governmental organizations to conduct these orientation programs, which seek to provide ICE Officers detainees with basic information on forms of Often, the only source of information for many relief from removal, how to represent themselves detainees about the status of their case is ICE in proceedings, and how to obtain legal itself. According to ICE detention standards, ICE representation. Immigration judges report that officers must regularly visit detention facilities individuals who attend these programs appear where immigrants are detained to provide better prepared, have a better understanding of information on the general immigration process. the court process, and are more likely to be able However, detainees told Amnesty International to identify the relief for which they are eligible. 125 that ICE staff often do not appear, and when they However, these programs are not available to all do, they are unable to provide useful information. detainees. As of November 2008 these programs Reportedly ICE staff is frequently unable to tell were offered in only 13 detention centers and detainees more than the date of their next court served approximately a quarter of immigration appearance. One former detainee told Amnesty detainees. EOIR has recently reported plans to add International, “You’re very dependent on ICE. 12 more locations; yet even with this expansion, You ask them questions, but then have to wait these programs are not available nationwide.126 for them to go back and get the information for you. Often times they would come back without Finally, while the Know Your Rights presentations any information.”127 That ICE officers may are certainly important, they cannot replace the represent the only source of information for many benefits of having individual legal representation. detainees, particularly those without a lawyer, presents a troubling conflict of interest since ICE 33 is also seeking to deport them. It is essential that detainees have access to other forms of assistance. 5.1.3 Translation and interpretation services While interpreters are generally available when an immigrant appears before an immigration court, a number of detainees reported that while in detention they needed to rely on other detainees or guards in order to obtain necessities, such as food and toiletries, translate documents or request assistance. ICE should ensure that all detention “LIFE IS MISERABLE. THE CHILDREN CONSTANTLY ASK FOR THEIR FATHER AND WAKE EVERY MORNING ASKING WHERE HE IS ... I’M BY MYSELF, ALONE AND CRYING. I DON’T KNOW WHY THEY PUNISH PEOPLE LIKE THIS.” facilities provide adequate interpretation and translation services for immigration detainees. 5.1.4 Access to attorneys and relatives Amnesty International’s findings indicate that Amnesty International interview with the wife of a former immigration detainee who had been held hundreds of miles many immigrant detainees have only infrequent away from his family for more than four access to attorneys and family members. The years (identity withheld), June 2008. ability to maintain contact with the outside world is an important safeguard against arbitrary detention, and international standards stipulate her attorneys and family during video hearings that individuals should be “kept in a place of for her case once a month. Her family filed a detention or imprisonment reasonably near his lawsuit against ICE regarding lack of medical usual place of residence.”129 care and she was finally released on July 2, 2008. She is now in Florida with her family, Yong Sun Harvill, a lawful permanent resident, getting medical treatment and awaiting the final was taken into custody by ICE on March 22, determination on her case.128 2007. According to news accounts in The Washington Post, she suffers from serious and Amnesty International is concerned by reports of detainees being held at facilities at complex medical issues, including repeated a great distance from family and attorneys, episodes of soft-tissue cancer, hepatitis C, and sometimes thousands of miles, making visits psychiatric problems. Her family and doctors and communication costly and time consuming. live in Florida. She was originally detained Being detained in close proximity to attorneys is for two months at a jail in Florida; however, ICE transferred her to the Florence Service imperative in order to adequately prepare for court. Also family members may possess or be able to acquire documents necessary for immigration Processing Center in Arizona, allegedly to secure court, including birth certificates or passports. The better long-term care. One month later she distances also impact the mental health of detainees was moved again to Pinal County Jail, Arizona, and their families, in particular young children. a facility that did not have a full time staff Frequent transfers to facilities all across the country doctor. The jail is more than 2000 miles from 34 are reportedly common, further undermining her family. Her attorneys were also unable to detainees’ ability to communicate with legal counsel have telephone calls with her, and she only saw and relatives. A detainee from Guyana was JAILED WITHOUT JUSTICE Immigration Detention in the USA reportedly transferred between ten facilities as far 5.1.5 Access to telephones apart as Alabama, Virginia and New Jersey during The primary means of communication for his six and a half years in detention. He was immigration detainees to contact attorneys, family released in December 2006 after he was granted and consular officials is the detention facility’s relief under the Convention Against Torture. 130 telephone system. However, detainees reported having limited access to telephones. Several It was also reported to Amnesty International that detainees told Amnesty International that there guards may threaten detainees with transfer to were only 2-3 phones available for as many as 40 another facility if they complain about conditions. to 50 detainees. As a result, detainees often had to wait a long time to make a phone call. Amnesty A detainee told Amnesty International that his wife, a US citizen, comes to visit him at the Yuba County jail, California every Saturday, “She drives three and a half hours just to have 45 minutes there. We should have longer time together.” The facility where he is held does not allow physical contact visits between ICE detainees and their family. “She brings our daughter. Sometimes it makes me cry. One time, [my] daughter said, ‘Daddy come out!’ She saw a door in the waiting room and said, ‘Look at the door in the back, come out!’ I couldn’t stand it. It hurt me a lot. I told her, ‘I want to hold you and kiss you.’” He told Amnesty International that he’d been in immigration detention for two months. “Before, on the outside, I was the provider. I had my own company and worked for myself. While you’re in prison, your hands are tied, you can’t do anything.” His wife has had to apply for welfare to support herself and their 2-year-old child. In tears, he told Amnesty International “What hurts is my daughter. I want to be there for her. I want to go to work every day, come home and see what she needs. I want to take her to the ocean, spend time with her. It’s killing me. Sometimes I break down.” He told Amnesty International that he feels he has no alternative but to stay in detention and fight deportation, because he fears that he and his family would be targeted by people who have made threats on his life. “I don’t want to take my family to get hurt. I’d rather they stay here. I really can’t go back.” Amnesty International interview with immigration detainee (identity withheld), June 2008. 35 M.D.H. told Amnesty International that he had painful dental problems that went untreated for the length of his detention, making it difficult for him to eat. He was told, “If you complain, we’ll ship you out to Bakersfield” a California facility that is several hours almost 200 miles away from his family and legal representation in the San Francisco area. Amnesty International interview with former immigration detainee (identity withheld), June 2008. A Vietnamese lawful permanent resident living in the United States for 27 years was detained while fighting deportation. He told Amnesty International that his niece was able to get in touch with a legal service provider willing to provide representation free of charge. However, he was not able to contact the provider from jail because the provider did not accept collect calls. Amnesty International interview with former immigration detainee (identity withheld), June 2008. International also received reports that detainees direct or free calls to consulates, and ICE is are unable to make free calls to pro bono legal required to provide updated telephone lists for services, although ICE guidelines provide for this. all consulates.132 Amnesty International spoke This may have a profound impact on a detainee’s with one detainee who tried to call the consul ability to secure counsel, since calls from prisons of Afghanistan, but the page with the telephone are often costly, and many pro bono legal service number was missing from the list. He said he providers with scant resources are unable to reported this issue to an ICE officer but no acceptcollect calls. 131 Under ICE detention guidelines, facilities are also required to provide 36 number was provided. JAILED WITHOUT JUSTICE Immigration Detention in the USA “THE FACILITY, YOU DON’T KNOW WHAT’S GOING TO HAPPEN TOMORROW NIGHT. YOU HAVE GANGS FROM STATE PRISON IN THERE.” Amnesty International’s survey reported similar practices.134 A number of detainees described being commingled with criminal detainees during certain times of the day, such as when performing work or during recreation time. Housing immigration detainees alongside individuals serving sentences for criminal offenses can put them at risk of physical harm. Immigration detainees said there were often confrontations, and in some instances, physical violence between them and the criminal detainees. 5.2.2 Inappropriate and excessive use of restraints Juana Villegas, an unauthorized immigrant from Mexico, was nine months pregnant when she was Amnesty International interview with arrested for a driving without a license in July former immigration detainee (identity 2008 and taken to the Davidson county jail in withheld), June 2008. Nashville, Tennessee. Two days later, she went into labor and was taken to hospital in an ambulance, chained to a gurney. At the hospital, 5.2 CONDITIONS OF DETENTION her left ankle and right wrist were shackled to the bed and removed just before delivery of her baby 5.2.1 Housing with detainees convicted of crimes boy and for approximately six hours after giving Immigration detainees, including asylum seekers, birth. But then, her left ankle was again shackled are in civil administrative detention, yet they are to the bed until her release from hospital; her often housed in prisons and jails with individuals feet were shackled together except when she had serving sentences for criminal convictions. This is contrary to international standards, which provide to visit the bathroom. Her lawyer said this was that those held under administrative detention done in violation of doctors’ orders. Ms. Villegas was shall be kept separate from individuals in criminal forbidden from seeing or speaking to her husband, 133 custody. ICE detention standards state that all facilities should develop a classification system for immigration detainees and ensure that detainees are physically separated from detainees in other friends, or relatives, and the telephone in her hospital room was disconnected. Her husband collected their baby on July 7, 2008, and his wife categories. The standards, however, do not returned to jail; he was not allowed to see or speak specifically require facilities to keep ICE detainees with her. Juana Villegas was released on July 8, and separate from individuals serving sentences for she is now subject to deportation proceedings.135 criminal offenses. Amnesty International considers the routine A warden at one facility in California told Amnesty International that immigration detainees are use of restraints on pregnant women, and particularly on women in labor, a cruel, inhuman commingled with criminal detainees. Various and degrading practice that seldom has any facilities across the country responding to justification in terms of security concerns. 37 “N.” ©Keith Brauneis. A transgender woman from Brazil told Amnesty International about her experiences at Santa Clara County Jail in California. N. was granted protection under the Convention Against Torture due to the torture she suffered in Brazil. She told Amnesty International that when she first arrived at Santa Clara, she was housed with several men. She claims she was sexually harassed by the other detainees. She was eventually placed in a private cell, but she said it took nearly two months before that happened. Amnesty International interview with former immigration detainee (identity withheld), June 2008. 38 JAILED WITHOUT JUSTICE Immigration Detention in the USA Interviews with current and former detainees indicate that the use of restraints during transportation is routine, in violation of international standards.136 The types of restraints used vary. Some detainees said they were handcuffed, some said they were handcuffed with belly chains, and others said they wore handcuffs, belly chains, and leg restraints. In interviews with current and former detainees, it appears that the use of restraints during transportation for all detainees is the rule, rather than the exception. Routine use of restraints on women contradicts ICE detention standards, which specify that as a rule, women and children should only be restrained in exceptional circumstances.137 judicial or administrative authority.138 However, International standards require that restraints An attorney told Amnesty International that this be removed when a person appears before a is standard procedure and noted, “They [the Amnesty International observed immigration court hearings in San Francisco and New York City where immigration detainees were restrained. In New York, immigration detainees were brought into court individually wearing belly chains and handcuffs, and only their right hand was released from the restraints in order to take the oath before the court. In San Francisco, as many as seven detainees were brought into the courtroom handcuffed and chained together, and they remained in joint restraints at the back of the courtroom throughout the proceedings. detainees] are told to be diligent, to pay attention A CHINESE WOMAN PURSUING AN ASYLUM CLAIM DESCRIBED BEING TRANSPORTED BACK AND FORTH TO COURT IN HANDCUFFS AND BELLY CHAINS. to what is going on, but they’re shackled and in the back. They can’t take notes on a lot of important things deadlines, what to bring…”139 5.2.3 Medical Treatment ICE detainees may find it very difficult to get timely and at times any treatment for their medical needs. International standards clearly specify that medical care and treatment shall be provided whenever necessary.140 ICE detention standards state that Amnesty International interview with all facilities should provide detainees with initial former immigration detainee (identity medical screening, cost-effective primary care, withheld), June 2008. and emergency care. A Brazilian transgender woman in Santa Clara County Jail in California described to Amnesty International how she was transported to immigration court in handcuffs, belly chains and leg restraints, even though men in the vehicle were only restrained in handcuffs. She reported that when she was last taken before the immigration judge, she had chains between her two thumbs, as well as her wrists, waist and ankles. Amnesty International interview with former immigration detainee (identity withheld), June 2008. 39 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. Several recent cases reported in the media have oversight at facilities housing immigration detainees involved failure to provide medical treatment, which to ensure adherence to standards of medical care.142 resulted in the death of immigration detainees. According to ICE, 74 people have died while in immigration detention over the past five years.141 Boubacar Bah, a 52-year-old tailor from Guinea, Following heightened public attention, the Office had lived in the United States for ten years when of Inspector General (OIG) of the Department of Homeland Security conducted a review examining ICE’s standards on medical treatment 40 he was detained in May 2006 for overstaying his tourist visa. On February 1, 2007, Bah collapsed of immigration detainees and procedures related and struck his head on the floor. According to to detainee deaths. The study found a need to improve other detainees, Bah had been ailing for two days, JAILED WITHOUT JUSTICE Immigration Detention in the USA and had asked unsuccessfully to see a doctor. Bah are working. He told Amnesty International that was taken to the medical unit where symptoms of the mental health practitioner doesn’t seem to know severe injury were overlooked instead of receiving the reason why he is on the medications: he was treatment, the incoherent and agitated Bah was shackled to the floor and later placed in solitary a prisoner of war in his home country and raped while captive. He is seeking relief from removal under the UN Convention Against Torture. confinement for “behavior problems.” Over thirteen hours later after repeated notifications that Bah was unresponsive and foaming at the mouth Sebastian Mejia Vincentes died on medical staff acknowledged the severity of Bah’s August 22, 2004, while detained at condition. Despite emergency surgery for a skull Hampton Roads Regional Jail in Virginia. He fracture and brain hemorrhage, Bah entered a had a history of schizophrenia and hanged coma. He died four months later, without waking.143 himself with a bed sheet. According to a DHS Office of Inspector General report, the jail violated its rule that detainees must be checked Victoria Arellano, a 23-year-old transgender wom- on every 30 minutes. A medical examiner told an from Mexico, was detained at ICE’s San Pedro the investigators that she “found it troubling” Facility in May 2007. Arellano was suffering from that Mejia had been dead for “at least four to six AIDS though not exhibiting symptoms. In deten- hours before his body was found.” 146 tion, her condition deteriorated because she was not given access to the antibiotics she needed. 5.2.4 Exercise According to The Los Angeles Times, her requests The majority of detainees who spoke with to see a doctor were ignored by facility staff. Other Amnesty International reported that they did not detainees dampened towels to reduce her fever and created makeshift trash cans from cardboard have the opportunity to exercise daily. Reports ranged from being allowed time to exercise from two to four days per week. Exercise is reportedly boxes to collect her vomit. Only after a strike and often scheduled at unreasonable hours of the civil disobedience by detainees in the facility did day. One detainee described how recreation staff take her to the infirmary. Arellano died two time is scheduled for one hour at 5:30 a.m. days later, after two months in detention, due to and that it only takes place when the majority of the detainees in the housing unit want to an AIDS-related infection.144 go. Detainees reported that they often forego their recreation time because it is scheduled Some individuals in immigration detention so early in the morning. Amnesty International require mental health services, particularly those also received reports that some detainees do not who have been victims of torture and abuse. have the opportunity to exercise outdoors. The Detention itself can have detrimental effects on DHS Office of Inspector General conducted an an individual’s mental health.145 However, reports investigation into the treatment of immigration indicate that such services are frequently not detainees housed in ICE facilities and found that provided, or are inadequate. One detainee who immigration detainees do not always have access had been in detention one year, reported he was to adequate exercise.147 taking anti-depressants, but he only speaks to a mental health practitioner by phone briefly once International standards provide that detainees every two months about whether the medications should have at least one hour of suitable exercise 41 in the open air daily if the weather permits.148 5.2.5 Physical and verbal abuse Under ICE’s detention guidelines, detainees Amnesty International received reports that some should wherever possible be housed in a facility individuals have been subjected to physical and/or that offers outdoor recreation, and each detainee verbal abuse while held in immigration detention, should have access for at least one hour daily, at in violation of international standards.149 Reported a reasonable time of day, weather permitting. allegations of mistreatment include the following: The transgender asylum seeker held at Santa Clara County Jail told Amnesty International that she was verbally and physically abused in immigration detention in early 2008. She reported that guards constantly called her “he/she,” “faggot,” and “fag-boy.” On one occasion, she requested assistance from guards because she was afraid for her safety after being placed in a cell with five men. When a guard finally responded, she said he handcuffed her behind her back and pulled up her hands so hard that “my shoulder popped out of the socket. They put me in a holding cell. I was there by myself for 12 hours before I received medical attention.” She also told Amnesty International that on another occasion, while being held at another facility, she tried to bring the guards’ attention to another inmate who had fainted. She said an officer took her by the neck and rammed her head into the wall, shouting, “It’s not your fucking problem!” She told Amnesty International, “I wrote a lot of grievance forms, but nothing happened.” Amnesty International interview with former immigration detainee (identity withheld), June 2008. 42 JAILED WITHOUT JUSTICE Immigration Detention in the USA Mr. C arrived from Nigeria to the United States in 1985. He is married to a US citizen and has four US citizen children, ranging in ages five to 17. On April 6, 2004, Mr. C was arrested at his house and taken into ICE custody for overstaying his student visa. On May 12, 2004, after refusing to sign his deportation order without first speaking with an attorney, Mr. C said he was handcuffed and shackled when he was beaten by six officers “… forcefully slamming me on the wall and concrete floor, pinning me on the concrete floor with their knees on my back.” Mr. C said he was bleeding and dazed, and he was rushed to a facility clinic. In October 2004, he told Amnesty International he was still suffering the effects of the beating. “I continue to have migraine headache, back pain, psychological and emotional pain,” he said. He filed a civil lawsuit after grievances to ICE about the incident met with no result. In an August 2006 letter to Amnesty International, he stated that he was still detained and fighting his deportation and he continued to have nightmares about the beating and humiliation he suffered. He told Amnesty International, “My family has been undergoing extreme hardship since my detention, both emotionally and financially.” Amnesty International correspondence with immigration detainee (identity withheld), September 2004. 43 6 RECOMMENDATIONS ENSURE PRESUMPTION AGAINST DETENTION OF IMMIGRANTS AND ASYLUM SEEKERS be extended to those currently subjected to • The US Attorney General and the Secretary for and regularly reviewed as to its lawfulness, the Department of Homeland Security should necessity, and appropriateness by means of ensure a statutory presumption in law, policy, and a prompt oral hearing by a court or similar practice against the administrative detention of competent independent and impartial body. “mandatory detention.” • Any detention decision should be automatically immigrants and asylum seekers. • All decisions to detain an immigrant or asylum• Immigration detention should be used only if, seeker should be subject to review by an in each individual case, DHS demonstrates that immigration judge and appeal to a competent it is a necessary and proportionate measure, in independent and impartial body. conformity with international law. Any form of immigration detention should always be as short as possible. ENSURE ALTERNATIVES TO DETENTION ARE AVAILABLE ENSURE THAT ALL DECISIONS TO DETAIN IMMIGRANTS AND ASYLUM SEEKERS ARE SUBJECT TO JUDICIAL REVIEW • The Department of Homeland Security should take all measures to ensure that non-custodial measures and alternatives to detention are provided for in law, policy, and practice. • The Department of Homeland Security and the Department of Justice (Executive Office • Alternative non-custodial measures, such as for Immigration Review) should ensure that reporting requirements, an affordable bond, or any decision to detain immigrants and asylum supervision programs operated by community- seekers is based on a detailed and individualized based organizations, should always be explicitly assessment, which should include the individual’s considered before resorting to detention. Reporting personal history, whether she or he presents a requirements should not be unduly onerous, danger to persons or property, and the risk of invasive, or difficult to comply with, especially absconding. Such assessment should consider for families with children and those of limited the necessity and appropriateness of detention, financial means. Conditions of release should be including whether it is proportionate to the subject to review by an immigration judge. objective to be achieved. This evaluation should 44 JAILED WITHOUT JUSTICE Immigration Detention in the USA • Alternatives to immigration related detention representation should be granted enhanced should use the least restrictive means necessary. access in order to meet filing deadlines. Electronic tagging devices should not be used for immigrants who would not otherwise be • The Department of Homeland Security should considered security threats or subject to detention. ensure that presentations by non-governmental organizations, including legal orientation • All immigrants and asylum seekers should have programs, are allowed on a regular basis at equal access to bond. All decisions regarding least weekly in all detention facilities. The US release on bond should be individualized and Congress should provide funding for such subject to review by an immigration judge. Conditions programs to ensure all detainees have access of bail, bond or surety must be reasonable and to such presentations. realistic for the individual seeking release. • The Department of Homeland Security should • The Department of Homeland Security should ensure that all detainees have proper access not have the authority to keep an individual in to working telephones while in detention and detention if an immigration judge has ordered that that regularly updated lists of pro bono or low individual released. cost representation and consulates are kept in the vicinity of telephones. Calls to legal service providers offering free or low cost legal ENSURE SAFEGUARDS AGAINST ARBITRARY DETENTION representation, attorneys, and consuls should be provided at no expense to the detainee or the group receiving the call. • The Department of Homeland Security should ensure that all immigrants have unrestricted • The Department of Homeland Security should access without delay to competent legal ensure that each detainee receives a handbook representation in order to be able to challenge that provides an overview of the rules and their detention. procedures in effect at the facility. In addition, DHS should ensure that all detainees receive a • The Department of Homeland Security should copy of the ICE National Detainee Handbook, not enter into a contract with a facility to detain which should include information such as the immigrants unless the facility provides a plan for right to contact consular officials, the right to ensuring that immigrants will have access without make free calls to consulates, immigration delay to legal representation. courts, and pro bono legal service providers, and the availability of legal rights presentations and • The Department of Homeland Security should other information regarding detention standards. ensure that facilities provide a current and Handbooks should be provided in the language of accurate list of local organizations and lawyers that particular detainee. that provide immigration advice and legal representation to every detainee upon arrival. • The Department of Homeland Security should Facilities should be required to provide telephone ensure that all detention facilities provide calls to these service providers free of charge. adequate and regular interpretation and translation services for immigration detainees. • The Department of Homeland Security should ensure that all immigrant detainees have daily • The Department of Homeland Security should access to updated and comprehensive jail law ensure that detainees are held in a facility that libraries and services. Individuals without legal is in close proximity to the immigration court 45 with jurisdiction over his or her case, as well • The Department of Homeland Security should as to the detainee’s attorney and family. All terminate contracts with facilities that do not measures should be taken to prevent the transfer comply with detention standards. of detainees to facilities that are far away from the immigration court with jurisdiction over their • The Department of Homeland Security should case, their lawyers and their families. Should a ensure that immigrants and asylum seekers are transfer take place, all measures should be taken not confined with individuals held on criminal by the detention and removal officer in charge to charges or serving criminal sentences. inform the court with jurisdiction over the case, the attorney of record, and the immigrant’s family • The Department of Homeland Security should in advance of the transfer; the officer should immediately begin consultations with transgender include the reasons why and ensure that the organizations to identify best practices for policies detainee’s legal documents and medical records in making housing decisions in a detention facility. are immediately transferred to the new facility. • The Department of Homeland Security should ensure that medical and mental ENSURE THAT FACILITIES HOUSING IMMIGRATION DETAINEES COMPLY WITH INTERNATIONAL STANDARDS AND ARE HELD ACCOUNTABLE IF THEY DO NOT health care be available at no cost to detained • The Department of Homeland Security 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. There should be effective independent oversight to ensure compliance with detention standards and accountability for violations. • The Department of Homeland Security should immigrants and asylum-seekers; the decision to deny medical care should be reviewed by an independent appeals board composed of medical professionals. ensure that any detained immigrants are held in facilities which offer outdoor recreation with at least one hour of recreation time at a reasonable hour (during daylight hours and at a time that affords detainees adequate sleep) on a daily basis. • The Department of Homeland Security should ensure that restraints are not used on immigration • The US Congress should ensure that detainees detainees except in certain limited situations in have the ability make confidential complaints order to prevent escape during a transfer, to about conditions of detention directly to an prevent the person from injuring himself or others, independent agency, such as an ombudsman. or to prevent the person from damaging property. Calls to such an agency should be free of charge They should only be used for as long as is strictly and detainees should be protected from any necessary. Policies should prohibit the use of retaliatory actions. These complaints should be restraints on pregnant women when they are being promptly investigated and appropriate redress transported, when they are in hospital awaiting provided. The US General Accounting Office birth, and after they have just given birth. Restraints and/or the Office of Inspector General should should always be removed when a person appears review complaints made and where patterns are before a judicial or administrative authority. identified conduct their own investigations and make recommendations to Congress. 46 JAILED WITHOUT JUSTICE Immigration Detention in the USA ENDNOTES 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. 6. 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. 7. 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 8. 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%20 AND%20control%20AND%20program. 9. Detention Watch Network, About the U.S. Detention and Deportation System, available at: http://www. detentionwatchnetwork.org/aboutdetention. 10. American Immigration Lawyers Association, Alternatives to Detention Position Paper, available at: http://www.aila.org/ Content/default.aspx?docid=25874. 11. 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. 12. 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. 13. 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 14. 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. 15. 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. 16. 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/bloodsweat-and-fear-0. 17. 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. 18. 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. 19. 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. 20. 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. 47 21. 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. 22. A full list of cases is on file with Amnesty International. See further: Section 3.3 Mandatory Detention. 23. Zadvydas v. Davis, 533 US 678, 690 (2001). 24. 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. 25. 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. 34. See UNHCR ExCom Conclusion No. 44 (XXXVII) – 1986, Detention of Refugees and Asylum Seekers, Paragraph (b); UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers, February 1999, Guideline 3: Exceptional Grounds for Detention; Report of UN Special Rapporteur on the Human Rights of Migrants, Gabriela Rodríguez Pizarro, E/CN.4/2003/85, Paragraph 35. 35. A. v. Australia, Human Rights Committee Communication No 560/1993: Australia. 30/04/97. CCPR/C/59/D/560/1993. 36. Report of the Working Group on Arbitrary Detention on its visit to the United Kingdom, E/CN.4/1999/63/Add.3, 18 December 1998, Recommendation 33. 37. Article 9 (4), ICCPR. 38. UN Human Rights Committee, Communication No. 560/1993. 39. See UN Body of Principles for the Protection of All Persons under any form of Detention or Imprisonment, and UN Standard Minimum Rules for the Treatment of Prisoners. 26. 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. 40. UN Convention relating to the Status of Refugees, 1951. 27. 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. 42. See Sanremo Declaration on the Principle of Nonrefoulement, 2001. 28. Amy Goldstein and Dana Priest, Five Detainees Who Took Their Lives, The Washington Post, 13 May 2008, page A08. 29. 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/pi/ nr/0809/080912washington.htm?searchstring=DETENTION%20 AND%20STANDARDS%20AND%20COMPLIANCE. 30. 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. 31. A more comprehensive overview of human rights standards relating to migrants, asylum seekers and refugees is beyond the scope of this report but is available in Amnesty International’s research guides, Migration-Related Detention: A research guide on human rights standards relevant to the detention of migrants, asylum-seekers and refugees and in the Amnesty International Report, Living in the Shadows: A Primer on the Human Rights of Migrants. 32. Article 9, Universal Declaration of Human Rights (UDHR); Article 9, International Covenant on Civil and Political Rights (ICCPR). 33. Report of the Working Group on Arbitrary Detention, 18 December 1998, E/CN.4/1999/63, paragraph 69. See Report of 48 the Working Group on Arbitrary Detention, A/HRC/7/4, 10 January 2008, paragraph 53. 41. Article 3, UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 43. Article 16, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. 44. Article 25, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. 45. Amici Curiae Brief, Florence Immigrant and Refugee Rights Project, et al, in Casas-Castrillon v. Lockyer, No. 07-56261. 46. Report of the U.N. Working Group on Arbitrary Detention, Addendum: Mission to Equatorial Guinea: A/HRC/7/4/Add.3, 18 February 2008, Paragraph 100. 47. Under US law, if an individual is apprehended at the border and the Department of Homeland Security suspects that he or she does not have permission to enter the United States, he or she is deemed “inadmissible” and classed as an “arriving alien.” INA Section 235(b)(2). 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. 48. While many of those seeking entry to the United States are turned away at its borders, those who express a fear of persecution or torture on return, are entitled to have the opportunity to speak with an immigration officer who conducts a “credible fear” interview. If they pass this interview, they are placed in adversarial removal proceedings which determine whether or not they should be deported. See INA § 235(b)(1)(B). 49. A lawful permanent resident can be considered an arriving alien if she is seeking “admission.” INA § 101(a)(13)(C). This can happen, for example, because they remained outside the United States for more than 180 days or may have committed certain crimes. 50. INA § 212 (d)(5)(A). The concept of “parole” in immigration law is complex. It is not considered an admission into the United States, but does permit a person to remain while another JAILED WITHOUT JUSTICE Immigration Detention in the USA proceeding is pending. See also Shaughnessy v. US ex rel. Mezei, 345 US 206, 210 (1953). 51. The new guidelines state that parole decisions for individuals who have established credible fear are to be made only on a case-by-case basis for “urgent humanitarian reasons” or “significant public benefit.” Persons found to have credible fear must now fall within one of the five criteria of 8 C.F.R. § 212.5 (b); (1) Persons with serious medical issues or impairment; (2) Women medically certified as pregnant; (3) Juveniles; (4) Witnesses in proceedings; and (5) Persons whose continued detention is not in the public interest. See ICE Directive 7-1.0, Myers, Asst. Secy., 6 November 2007. 52. Department of Justice regulations specifically divest immigration judges of jurisdiction to review detention decisions of individuals apprehended at the border. 8 CFR §§1003.19(h) (2)(i)(B) and 1236.1(c)(11); Matter of Oseiwusu, 22 I & N Dec. 19 (BIA 1998). Although the current law would suggest that people seeking admission at a port of entry (those not subject to expedited removal) are generally eligible for a bond hearing under INA § 236(a), DHS has taken the position that only people apprehended inside the United States are eligible for a bond hearing under INA § 236(a). 53. US Committee for Refugees and Immigrants, World Refugee Survey 2006: United States, available at: http://www.refugees.org/ countryreports.aspx?__VIEWSTATE=dDwtOTMxNDcwOTk7O2w 8Q291bnRyeUREOkdvQnV0dG9uOz4%2BUwqzZxIYLI0SfZCZu e2XtA0UFEQ%3D&cid=1607&subm=&ssm=&map=&searchtex t= See also US Commission on International Religious Freedom, Expedited Removal Study Report Card: Two Years Later, February 2007, pages 5-6, available at: http://www.uscirf.gov/images/ stories/pdf/scorecard_final.pdf. 54. INA § 236 (a) (2), 8 U.S.C.A. § 1226 (a)(2)(A) and (B). 55. AI correspondence with immigration judges (identities withheld) (on file with Amnesty International USA), October 2008. 56. 8 CFR § 236.1(c)(8) The factors commonly considered in making the determination to release and/or set bond include local family ties; prior arrests, convictions, appearances at hearings; membership in a community organization; manner of entry and length of time in the United States; and financial ability to post bond. See, for example, Matter of Patel, 15 I&N Dec. 666 (BIA 1976); Matter of San Martin, 15 I&N Dec. 167 (BIA 1974); Matter of Guerra, 24 I&N Dec. 37 (BIA 2006). 57. See 8 CFR § 1003.19. 58. Data provided to Amnesty International by the US Department of Justice, Executive Office for Immigration Review, 26 June 2008. In 2006, the EOIR made 189,478 bond decisions and 14,750 were denied (7.78%); in2007 the EOIR made 273,139 bond decisions and 22,254 were denied (8.15%); in the first five months 2008 the EOIR made 201, 468 bond decisions and 21,842 were denied (10.84%). 59. Data provided to Amnesty International by the US Department of Justice, Executive Office for Immigration Review, 26 June 2008. Categories include: Administratively closed, New Amount, No Jurisdiction, No Bond, Released on Own Recognizance and No Change. 60. Executive Office for Immigration Review, FY 2007 Statistical Year Book, Office of Planning, Analysis, and Technology, April 2008, available at: http://www.usdoj.gov/eoir/statspub/fy07syb.pdf. 61. San Antonio Express News, Ruling on Deportation Due in June, 31 May 2007, available at: http://www.mysanantonio. com/news/MYSA060107_02B_war_crimes_verdict_33ad4fc_ html12304.html, San Antonio Express-News, Man Cleared in Africa Atrocities Hoping to be Released From Jail, 17 September 2007, available at: http://www.mysanantonio.com/news/ MYSA091807_03B_sierraleone_3137168_html3165.html, Heidi Zhou, Kambo Grateful for Life on the Outside, News 8 Austin, 19 November, 2007, available at: http://www.news8austin.com/ content/your_news/default.asp?ArID=195552. 62. 8 CFR § 1003.19(i)(2). 63. INA § 236(a)(2)(A). 64. Data provided by Andrew R. Strait, Esq., Acting Coordinator/ Policy Analyst, National Community Outreach Program, Office of Policy, US Immigration and Customs Enforcement, 16 January 2009. 65. Interview with immigration judge (identity withheld), August 2008. 66. Based on Data from the March 2005 Current Population Survey, the average weekly earnings for unauthorized males who arrived between 2000 and 2005 was more than $480 (roughly amounting to $25,000 per year). See Pew Hispanic Center Fact Sheet, The Labor Force Status of Short-term Unauthorized Workers, 13 April 2006, available at: http://pewhispanic.org/files/ factsheets/16.pdf. 67. Bail bondsmen or sureties are individuals who agree to become legally liable for the debt, default, or failure in duty of another. 68. In the 43 cases observed by the National Lawyers Guild where bond was granted, individual detainees were 18% more likely to receive a bond of more than $5,000 if not represented, while detainees with legal representation were 18% more likely to receive a bond of less than $5,000. The bond amounts for all proceedings observed ranged from the minimum of $1,500 to $35,000. Detainee Working Group of the New York University Chapter of the National Lawyers Guild, Broken Justice: A Report on the Failures of the Court System for Immigration Detainees in New York City, Volume I, September 2006 – May 2007, page 10, available at: http://www.nlgnyc.org/pdf/broken_justice.pdf. 69. Detainee Working Group of the New York University Chapter of the National Lawyers Guild, Broken Justice: A Report on the Failures of the Court System for Immigration Detainees in New York City, Volume I, September 2006 – May 2007, page10, available at: http://www.nlgnyc.org/pdf/broken_justice.pdf. 70. 8 CFR § 1236.1(d) provides that an unauthorized immigrant may petition the immigration judge for “amelioration of the conditions under which he or she may be released…[T]he immigration judge is authorized…to detain the [individual] in custody, release the [individual], and determine the amount of bond, if any, under which the respondent may released.” (emphasis added). 71. Amnesty International correspondence with immigration judges (identities withheld) (on file with AIUSA), October 2008. 72. Data provided to Amnesty International by the US Department of Justice, Executive Office for Immigration Review, 26 June 2008. 73. Data provided to Amnesty International by the US Department of Justice, Executive Office for Immigration Review, 26 June 2008. 74. Immigration and Customs Enforcement did not respond to a request from Amnesty International to provide this data. 75. INA § 236(c). 76. INA § 236(c). 77. According to Amnesty International research, at least 117 individuals have been held in mandatory detention on the basis of crimes that were ultimately determined not to constitute an 49 aggravated felony offense for which they could be deported. See further footnote 83. 78. Michel v. INS, 206 F.3d 253 (2nd Cir. 2000). 79. Drakes v. Zimski, 240 F.3d 246 (3rd Cir. 2001). 80. See 8 CFR § 1003.19(h)(2)(II); Matter of Joseph, 22 I & N Dec. 799 (BIA 1999). 81. According to the US Department of Justice, 58 per cent of individuals do not have a lawyer during removal proceedings. However, 84 per cent of detained immigrants have no legal representation. See Department of Justice, FY 2007 Statistical Yearbook, Executive Office for Immigration Review, April 2008, figure 9 at G1, available at: http://www.usdoj.gov/eoir/statspub/ fy07syb.pdf. Nina Siulc, Zhifen Cheng, Arnold Son, and Olga Byrne, Improving Efficiency and Promoting Justice in the Immigration System: Lessons from the Legal Orientation Program, Report Summary, Vera Institute of Justice, May 2008, available at: http://www.vera.org/publication_pdf/477_877.pdf. 82. A full list of cases is on file with Amnesty International. This number does not capture all of the individuals who are incorrectly subject to mandatory detention, and is therefore an underestimate. In order to identify cases Amnesty International researchers reviewed decisions from the past 10 years in which the circuit courts, district courts and BIA reversed an immigration judge’s finding that an individual was an aggravated felon, and therefore subject to mandatory detention. This number does not account for individuals who were unable to secure representation to pursue an appeal before the circuit courts and/or the BIA. It also does not include incorrect findings of “crimes involving moral turpitude,” firearms offenses, controlled substances offenses, or other miscellaneous crimes triggering mandatory detention. Finally, it does not capture instances in which an immigration judge terminated removal proceedings because the government could not demonstrate the person was deportable. 83. The UN Working Group on Arbitrary Detention has explicitly stated that where the detention of unauthorized immigrants is mandatory, regardless of their personal circumstances, it violates the prohibition of arbitrary detention in Article 9 of the UDHR and Article 9 of the ICCPR. See Report of the Working Group on Arbitrary Detention on its visit to the United Kingdom, E/ CN.4/1999/63/Add.3, 18 December 1998, Recommendation 33. 84. AI interview with Y.S. (identity withheld), June 2008. 85. A person can claim citizenship on a number of grounds, including birth in the United States (INA § 301(a), (b) and (f)), the citizenship of one or both parents (INA § 301(c), (d), (g) and (h)), a combination of parental citizenship and residence (INA § 320 and INA § 322), or through naturalization (INA § 316). 86. Wall Street Journal, They Say They Were Born in the U.S.A. The State Department Says Prove It: An Old Scam Casts Doubt on the Citizenship Of Texans Delivered by Midwives, 11 August 2008, available at: http://online.wsj.com/article/ SB121842058533028907.html. 87. ACLU Press Release, Illegally Deported U.S. Citizen Pedro Guzman Found After Nearly Three Months In Mexico, 7 August 2007, available at: http://www.aclu.org/immigrants/ gen/32450prs20070807.html. 88. Testimony of Kara Hartzler, Florence Immigrant and Refugee Rights Project, before the House of Representatives Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law Hearing on Problems with ICE Interrogation, Detention and Removal Procedures, Second Session of the 110th Congress, 13 February 2008, serial Number 110-80, available at: http://judiciary.house.gov/hearings/ printers/110th/40742.PDF. 50 89. In calendar year 2007, Legal Orientation Providers identified 322 people with potential claims to US citizenship. See Nina Siulc, Zhifen Cheng, Arnold Son, and Olga Byrne, Improving Efficiency and Promoting Justice in the Immigration System: Lessons from the Legal Orientation Program, Report Summary, Vera Institute of Justice, May 2008, page 1, available at: http:// www.vera.org/publication_pdf/477_877.pdf. 90. Lawful Permanent Resident (LPR) status allows for residing and working in the United States. An LPR is sometimes referred to as a green card holder. 91. 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. 92. Amici Curiae Brief, Florence Immigrant and Refugee Rights Project, et al, in Casas-Castrillon v. Lockyer, No. 07-56261. 93. Woodby v. INS, 385 U.S. 276 (1966). 94. This is of particular concern given that BIA case law recognizes that the admission of a crime involving moral turpitude is only valid if: (1) the admitted conduct constitutes the elements of a crime; (2) the applicant was provided with the definition and essential elements of the offense prior to admission; and (3) the admission was voluntary. See Matter of K, 7 I & N Dec. 594, 598 (BIA 1957). 95. Matter of Kotliar, 24 I & N Dec. 124 (BIA 2007). 96. INA §241(a)(1)(A). 97. INA §241(a)(2). 98. INA §241(a)(3)(A-D). Two US Supreme Court decisions, Zadvydas v. Davis and Clark v. Martinez mandate the release of immigrants 180 days after the issuance of a final removal order, if repatriation to their country of origin is not likely to occur in the reasonably foreseeable future except in “special circumstances.” Prior to Zadvydas, the Government had a policy of detaining individuals even when there was virtually no chance they would actually be removed. In the aftermath of the decision, new regulations were promulgated in order to comply with the Supreme Court decision. Under these regulations, If DHS cannot remove a migrant within the 90-day removal period, the Government is required to provide a post-order custody review to determine if the individual is a flight risk or danger to national security. If the individual remains in detention six months after the removal order has become final, another custody review is to be conducted. 99. 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. See also Amici Curiae Brief, Pennsylvania Immigration Resource Center, Wilks v. DHS, Docket No. 08-3352, 16 September 2008. 100. Doissaint v. Chertoff, No. C08-0584-MJP (W. D. Wash. Aug, 26 2008) (adopting the report and recommendation of US Magistrate Judge Theiler). 101. See Thangaraja v. Gonzales 428 F.3d 870 (9th Cir. 2005); Thangaraja v. Ashcroft 107 Fed.App’x. 815 (9th Cir. 25 Aug. 25, 2004); Pet. For Writ of Habeas Corpus, Thangaraja v. Gonzales, No. 05CV1608 (S.D. Cal. Aug. 12, 2005); Stipulated Notices of Dismissal, Thangaraja v. Gonzales, No. 05 CV 1608 (S.D. Cal. June 7, 2006) See also ACLU of Southern California, Press Release, Sri Lankan Torture Victim Released After Nearly Five Years, 27 March 2008, available at http://www.aclu-sc.org/ releases/view/101728. JAILED WITHOUT JUSTICE Immigration Detention in the USA 102. Amnesty International, Irregular Migrants and Asylumseekers: alternatives to immigration detention, POL 33/001/2009. 103. Amnesty International, Irregular Migrants and Asylumseekers: alternatives to immigration detention, POL 33/001/2009. 104. Vera Institute of Justice report, Testing Community Supervision for the INS: An Evaluation of the Appearance Assistance Program, Volume I, Final Report to the Immigration and Naturalization Service, August 1, 2000, available at: http:// www.vera.org/publication_pdf/aapfinal.pdf. 105. Between 2004 and 2005, Congress appropriated approximately $14 million for the exploration of alternatives to detention. In 2008 this had increased to $53 million. Testimony of Michelle Brane of the Women’s Commission for Refugee Women and Children before the Department of Homeland Security Subcommittee on Border, Maritime and Global Counterterrorism, “Crossing the Border: Immigrants in Detention and Victims of Trafficking,” 15 March 2007, available at: http:// homeland.house.gov/SiteDocuments/20070315162728-15975. pdf. Gabriela Reardon, Immigrants Fight Restrictions at Home, City Limits Weeklxy (New York), No. 655, 8 September 2008, available at: http://www.citylimits.org/content/articles/ viewprintable.cfm?article_id=3616. 106. US Immigration and Customs Enforcement Fact Sheet, Alternatives to Detention, 26 November2008, available at: http:// www.ice.gov/pi/news/factsheets/080115alternativestodetention.htm. 107. US Immigration and Customs Enforcement Fact Sheet, Alternatives to Detention, 26 November2008, available at: http:// www.ice.gov/pi/news/factsheets/080115alternativestodetention.htm. 108. US Immigration and Customs Enforcement Fact Sheet, Alternatives to Detention, 26 November2008, available at: http:// www.ice.gov/pi/news/factsheets/080115alternativestodetention.htm. 109. Report of UN Special Rapporteur on the Human Rights of Migrants, Gabriela Rodríguez Pizarro, E/CN. 4/2003/85, Paragraph 43. 110. See Richard L. Skinner, ICE Policies Related to Detainee Deaths and the Oversight of Immigration Detention Facilities, Office of Inspector General, Department of Homeland Security, June 2008, available at: http://www.dhs.gov/xoig/assets/ mgmtrpts/OIG_08-52_Jun08.pdf; Report to Congressional Requesters, Alien Detention Standards, US Government Accountability Office, July 2007, available at: http://www.gao. gov/new.items/d07875.pdf; David M. Zavada, Treatment of Immigration Detainees Housed at Immigration and Customs Enforcement Facilities, Office of Inspector General, Department of Homeland Security, December 2006, available at: http://www. dhs.gov/xoig/assets/mgmtrpts/OIG_07-01_Dec06.pdf. 111. Report of the Working Group on Arbitrary Detention, E/ CN.4/1998/44, Paragraph 33(a). 112. Article 14(3)(d) ICCPR; Principle 17(2), UN Body of Principles for the Protection of All Persons under Any Form of Detention and Imprisonment, 1988. 113. By statute, a person has the “privilege” of counsel. See INA § 240(b)(4)(A). 114. The cost of legal representation can run in to tens of thousands of dollars, while immigrants earn on average wages that are well below the national average. Based on data from the March 2005 Current Population Survey, the average weekly earnings for unauthorized males who arrived between 2000 and 2005 was approximately $480 (roughly amounting to $25,000 per year). See Pew Hispanic Center Fact Sheet, The Labor Force Status of Short-term Unauthorized Workers, 13 April 2006, available at: http://pewhispanic.org/files/factsheets/16.pdf. 115. Department of Justice, FY 2007 Statistical Yearbook, Executive Office for Immigration Review, April 2008, Figure 9 at G1, available at: http://www.usdoj.gov/eoir/statspub/fy07syb.pdf. 116. According to the EOIR, between 1 October 2006, and 20 September 2007, approximately 84 per cent of completed detained immigration court proceedings involved unrepresented individuals. Nina Siulc, Zhifen Cheng, Arnold Son, and Olga Byrne, Improving Efficiency and Promoting Justice in the Immigration System: Lessons from the Legal Orientation Program, Report Summary, Vera Institute of Justice, May 2008, available at: http://www.vera.org/publication_pdf/477_877.pdf. 117. See Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), Matter of Assad, 23 I&N Dec. 553 (BIA 2003), Olvera v. INS, 504 F.2d 1372 (5th Cir. 1974), Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990), Saakian v. INS, 252 F.3d 21 (1st Cir. 2001). 118. Matter of Enrique Salas Compean; Matter of Sylla Bangaly; Matter of J-E-C-, et al. 24 I&N Dec. 710 (A.G. 2009). 119. The Transactional Records Access Clearinghouse’s Immigration Project of Syracuse University (TRAC) looked at the results of 297,240 asylum cases from the fiscal years of 1994 through the first few months of 2005 and found that asylum claims with representation were five times more likely to be approved by immigration judges than those that proceeded pro se. See Table 1, available at: http://trac.syr.edu/immigration/ reports/160/. 120. 8 C.F.R. §1240.10 (a)(2). 121. See list of New York City pro bono and low fee attorneys (scroll down for New York City organizations/attorneys): http:// www.usdoj.gov/eoir/probono/freelglchtNY.htm 122. Amnesty International interview, Holly Cooper, Lecturer, and Raha Jorjani, Supervising Attorney, Immigration Law Clinic, University of California, Davis, June 2008. 123. See Article 9(2) ICCPR; UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, 1988. 124. See ICE/DRO Detention Standards: Law Libraries and Legal Material, available at: http://www.ice.gov/doclib/PBNDS/pdf/law_ libraries_and_legal_material.pdf. 125. Nina Siulc, Zhifen Cheng, Arnold Son, and Olga Byrne, Legal Orientation Program: Evaluation and Performance and Outcome Measurement, Phase II, Vera Institute of Justice, May 2008, Page v, available at: http://www.vera.org/publication_ pdf/475_874.pdf. 126. Nina Siulc, Zhifen Cheng, Arnold Son, and Olga Byrne, Improving Efficiency and Promoting Justice in the Immigration System: Lessons from the Legal Orientation Program, Report Summary, Vera Institute of Justice, May 2008, page 2, available at: http://www.vera.org/publication_pdf/477_877.pdf.The 13 current LOP sites are located at detention facilities in: Eloy, Arizona; Lancaster and San Diego, California; Aurora, Colorado; Kearny and New Brunswick, New Jersey; Batavia, New York; York, Pennsylvania; El Paso, Houston, Pearsall, and Port Isabel, Texas; and Tacoma, Washington. The 12 new program sites are located at detention facilities in: Florence, Arizona; Los Angeles, California; Miami, Florida; Lumpkin, Georgia; Jena, Louisiana; Newark, New Jersey; Chaparral, New Mexico; Leesport, Pennsylvania; Raymondville, Texas; and Farmville, Portsmouth, and Hanover, Virginia. See Executive Office for Immigration Review, News Release, EOIR Adds 12 New Legal Orientation Program Sites, 15 October 2008, available at: http://www.usdoj. gov/eoir/press/08/LegalOrientationProgramExpands101508.htm. 51 127. Amnesty International requested information from ICE on the role of ICE officers in detention facilities; however ICE failed to respond. 128. Amy Goldstein and Dana Priest, In Custody, in Pain, Washington Post, 12 May 2008, page A01; Amy Goldstein and Dana Priest, Lawsuit Leads to Release of Immigrant, Washington Post, 3 July 2008, page A02. 129. Principle 20, UN Body of Principles for the Protection of All Persons under any form of Detention or Imprisonment. 130. Chris Nugent and Leon Fresco, Mentally Ill Gay Guyanese Victim of Torture is Freed From a Complex Odyssey of Over Six Years in Immigration Detention, Immigration Daily, ILW.com, 22 December 2006, available at: http://www.asylumlaw.org/docs/ sexualminorities/Guyana122206.pdf. 131. See US Government Accountability Office, Report GAO-0785, Alien Detention Standards: Telephone Access Problems Were Pervasive at Detention Facilities; Other Deficiencies Did Not Show A Pattern of Noncompliance, July 2007 available at: http://www. gao.gov/new.items/d07875.pdf. 132. ICE/DRO Detention Standards, Telephone Access, available at: http://www.ice.gov/doclib/PBNDS/pdf/telephone_access.pdf. 133. Rule 8(c), UN Standard Minimum Rules for the Treatment of Prisoners; Guideline 10(iii), UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers. 134. Sacramento County Jail and Santa Clara County Jail, California; Clay County Jail and Monroe County Jail and Palm Beach County Jail, Florida; East Point Jail, Georgia; Phelps County Correctional Facility, Nebraska; Rockingham County Jail, New Hampshire; Ulster County Jail, New York; Yamhill County Jail, Oregon; Berks County Prison and Lackawanna County Prison, Pennsylvania; Johnson County Jail, Texas; Utah County Jail, Utah; Arlington County Correctional Facility, Virginia; Platte County Detention Center, Wyoming. 135. Julia Preston, Immigrant, Pregnant, Is Jailed Under Pact, The New York Times, 20 July 2008, available at: http://www.nytimes.com/2008/07/20/us/20immig. html?_r=2&adxnnl=1&oref=slogin&adxnnlx=1216567152mVHAvtmlaL94JXmb6touHg. 136. International standards provide that chains or irons should not be used as restraints, and other instruments of restraint should not be used except in certain limited situations in order to prevent escape during a transfer; to prevent the person injuring himself or others, or from damaging property. In these cases, restraints should only be used for as long as is “strictly necessary.” Rule 33, UN Standard Minimum Rules for the Treatment of Prisoners. 137. ICE/DRO Detention Standards, Transportation (By Land), available at: http://www.ice.gov/doclib/PBNDS/pdf/transportation_ by_land.pdf. 138. Rules 33 and 34, UN Standard Minimum Rules for the Treatment of Prisoners. 139. Amnesty International Interview, Holly Cooper, Lecturer, Immigration Law Clinic, University of California, Davis, June 2008. 140. Principle 24, UN Body of Principles for All Persons under Any Form of Detention or Imprisonment. 141. US Immigration and Customs Enforcement, Mortality rates at ICE detention facilities, 17 July 2008, available at: http://www. ice.gov/pi/news/factsheets/detention_facilities_mortality_rates.htm. 52 142. Richard L. Skinner, ICE Policies Related to Detainee Deaths and the Oversight of Immigration Detention Facilities, Office of Inspector General, Department of Homeland Security, June 2008, available at: http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_0852_Jun08.pdf. 143. Nina Bernstein, Few Details on Immigrants Who Died in Custody, The New York Times, 5 May 2008, available at: http://www.nytimes.com/2008/05/05/nyregion/05detain. html?_r=1&pagewanted=all. 144. Sandra Hernandez, A Lethal Limbo for Migrants, The Los Angeles Times, 1 June 2008; Detained Immigrant with AIDS Dies, The Associated Press, 11 August 2007. 145. 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 24, available at: http://physiciansforhumanrights.org/library/ documents/reports/report-perstoprison-2003.pdf. 146. Amy Goldstein and Dana Priest, Five Detainees Who Took Their Lives, The Washington Post, 13 May 2008, page A08. 147. David M. Zavada, Treatment of Immigration Detainees Housed at Immigration and Customs Enforcement Facilities, Office of Inspector General, US Department of Homeland Security, December 2006, page 23, available at: http://trac.syr. edu/immigration/library/P1598.pdf. 148. Rule 21(1), UN Standard Minimum Rules for the Treatment of Prisoners. 149. International standards limit the legitimate purposes and scope of the use of force. For example, Rule 54(1) of the Standard Minimum Rules for the Treatment of Prisoners permit staff to use force for self-defense, to prevent escape, and in cases of active or passive physical resistance to an order based on law or regulation. JAILED WITHOUT JUSTICE Immigration Detention in the USA SCOPE AND METHODOLOGY People who enter or work in countries without legal Information for this report was gathered from a variety authorization have been labeled illegal, undocumented of sources from across the country, including or irregular. The term “irregular migrant” is increasingly immigration law practitioners, non-governmental used in international human rights standards and in organizations (NGOs) working with immigrants, asylum the commentary of UN and regional human rights seekers, immigration judges, government officials, bodies to refer to individuals who do not have legal and more than 100 letters received and reviewed by permission to remain in a host country. Amnesty International from immigrants in detention. In-depth interviews were conducted with twenty In the United States, the term “undocumented detained and formerly detained immigrants and asylum immigrant” is often used in discussing anyone seekers. It also draws from responses to surveys sent subject to enforcement or deportation actions. by Amnesty International to officials of the Executive However, many immigrants entered the United States Office for Immigration Review and facilities housing with documentation and have since lapsed out of immigration detainees, as well as immigration hearings status or have a status that is being questioned by observed in both San Francisco, Calif., and New the government. In this report, therefore, Amnesty York, N.Y., by Amnesty International researchers. International USA uses the phrase unauthorized Furthermore, Amnesty International conducted a immigrant to describe individuals who currently have review of government and non-governmental reports no, or uncertain, legal status in the United States. and statistics, case law, and legislation, as well as For example, a person who arrives in the United media accounts. Most case studies were followed States on a student visa but then remains past the up by interviews with the attorneys representing permitted term of stay is unauthorized: she or he the immigrants and asylum seekers concerned. To was originally documented and legally allowed into protect their identities, the names of the individuals the United States but now the status has lapsed. in the case studies who were not reported in the Likewise, a migrant worker who crossed the southern media were changed or withheld. All featured cases border without the government’s permission is also are on file with Amnesty International. an unauthorized immigrant. The Department of Homeland Security, Immigration If DHS has a reasonable belief that an individual and Customs Enforcement did not respond to does not have permission to enter or remain in the Amnesty International’s repeated requests for data. United States, then that person may be placed in Of the 243 facilities housing immigration detainees “removal proceedings,” which means the government that were surveyed, only 21 responded. is seeking to deport him or her from the United States. For the purposes of this report the terms removal and deportation are used interchangeably. A NOTE ON TERMINOLOGY There is no single term universally accepted that describes the unique situation of migrants and asylum LIST OF TERMS/ABBREVIATIONS seekers. While some terms may have specific legal DHS: Department of Homeland Security. meanings, it must also be acknowledged that many ICE: Immigration and Customs Enforcement. may be used in a broader political or cultural context. This report describes the human rights situation of individuals who face detention either to prevent them from entering the United States or to forcibly expel them to their countries of origin. This group includes CBP: Customs and Border Patrol. EOIR: Executive Office for Immigration Review. ICCPR: UN International Covenant on Civil and Political Rights CAT: UN Convention Against Torture arriving (and rejected) asylum seekers, long time lawful permanent residents, and other immigrants. Concept and design: HartungKemp, Minneapolis “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. amnestyusa.org/immigrants