U.S. Detention of Asylum Seekers

© Bill Fritsch/Brand X/Corbis

Seeking Protection, Finding Prison

April 2009

U.S. Detention of
Asylum Seekers
Seeking Protection, Finding Prison
April 2009

About Human Rights First

Acknowledgements

Human Rights First believes that building respect for human
rights and the rule of law will help ensure the dignity to which
every individual is entitled and will stem tyranny, extremism,
intolerance, and violence.

The principal authors of this report were Eleanor Acer and
Jessica Chicco, and Ms. Chicco was the primary researcher.
Additional research, writing and/or editing was contributed by
Elizabeth Centeno, Anwen Hughes, Asa Piyaka, Anne Sovcik,
and Tad Stahnke. We thank Sarah Graham for her work
designing the report.

Human Rights First protects people at risk: refugees who flee
persecution, victims of crimes against humanity or other mass
human rights violations, victims of discrimination, those whose
rights are eroded in the name of national security, and human
rights advocates who are targeted for defending the rights of
others. These groups are often the first victims of societal
instability and breakdown; their treatment is a harbinger of
wider-scale repression. Human Rights First works to prevent
violations against these groups and to seek justice and
accountability for violations against them.
Human Rights First is practical and effective. We advocate for
change at the highest levels of national and international
policymaking. We seek justice through the courts. We raise
awareness and understanding through the media. We build
coalitions among those with divergent views. And we mobilize
people to act.
Human Rights First is a nonprofit, nonpartisan international
human rights organization based in New York and Washington
D.C. To maintain our independence, we accept no government
funding.
This report is available for free online at
www.humanrightsfirst.org
© 2009 Human Rights First. All Rights Reserved.

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Tel.: 212.845.5200
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We wish to thank the many refugees and asylum seekers, pro
bono attorneys, legal representation organizations, faith-based
and community groups, Department of Homeland Security and
Department of Justice officials, and others who provided
information included in this report.
Human Rights First gratefully acknowledges the Fund for New
Jersey, the Fund for New Citizens of the New York Community
Trust, and the Picower Foundation for their generous support of
our pro bono legal representation program for refugees who
seek asylum in the United States.

Table of Contents
Executive Summary................................................. 1
Increase in Prison-Like Facilities..........................3
Detention Without Safeguards.............................5
Impact of Detention on Asylum Seekers ..............7
Financial Cost of Detention .................................8
Escalation of Detention in Remote Areas.............8
Looking Forward..................................................9
Introduction and Background ................................ 13
U.S. Tradition of Welcoming the Persecuted.......13
The Department of Homeland Security
and Asylum Seekers..........................................13
Expedited Removal and its Expansion ...............14
Detention of Asylum Seekers.............................15
Increase in Prison-Like Facilities ........................... 17
The Prison Model Used
for Detention of Asylum Seekers........................18
Government Commission: Prison-Like Facilities
Inappropriate for Asylum Seekers ......................22
The New Mega-Jails...........................................25
Continued Detention in Jails..............................27
More Family Detention Facilities........................27
Penal Detention Inappropriate
Under International Standards...........................29
Failure to Adopt Safeguards to Ensure Fairness ...... 31
A Flawed Process ..............................................32
Failure to Implement Critical Reforms ................33
ICE’s New Asylum Parole Policy .........................34
Reform More Necessary Than Ever.....................35
Prohibitively High Bonds....................................38
Lengthy Detention .............................................39
Detention After Asylum Seekers
Ruled Eligible for Protection ..............................40
Statistics on Detention and Parole
of Asylum Seekers.............................................40

The Impact of Detention ........................................ 42
Increased Trauma and Depression ....................42
Impact on Ability to Win Asylum ........................44
Driven to Abandon Protection............................45
Cost of Detention.................................................. 47
Cost of Detaining Asylum Seekers .....................47
Cost Savings Through Release
on Parole or Alternatives to Detention................49
Medical and Mental Health Care Deficiencies ........ 51
Medical Staffing Shortages
at Detention Facilities .......................................52
Lack of Interpretation ........................................53
Detainee Deaths ...............................................54
Isolated Facilities and Access to Justice................. 55
Legal Orientation Presentations .........................56
Access to Legal Representation.........................58
Video Justice? U.S. Immigration Court Hearings
and Asylum Interviews Conducted by Video .......59
Communication with ICE ...................................61
Alternatives to Detention or
Alternatives to Release? ....................................... 63
Early Models .....................................................64
Current Programs: Limited in Scope...................64
Alternatives to Detention? .................................66
Recommendations................................................ 68
Appendix.............................................................. 74
Methodology.....................................................74
Abbreviations and Glossary of Terms .................75
Profiles of Detention Facilities ...........................76
Response from Immigration and Customs
Enforcement .....................................................83
Endnotes ............................................................. 85

U.S. Detention of Asylum Seekers—1

Executive Summary
“When I was back home I was in prison [for speaking out for human rights]. I thought that when I
got to America I’d be free, but then I was in prison again. I was surprised by that.”
Burmese school teacher: beaten and jailed for two years by the Burmese government, and detained by U.S. immigration
authorities for seven months in an El Paso, Texas, immigration jail after requesting asylum in the United States1

IN MARCH 2003, the U.S. Department of Homeland
Security (DHS) took over responsibility for asylum and
immigration matters when the former INS (Immigration
and Naturalization Service) was abolished. With this
transfer, DHS was entrusted with the duty to ensure that
the United States lives up to its commitments to those
who seek asylum from persecution. These commitments
stem from both U.S. law and international treaties with
which the United States has pledged to abide. Yet, those
who seek asylum—a form of protection extended to victims
of political, religious and other forms of persecution—have
been swept up in a wave of increased immigration
detention, which has left many asylum seekers in jails and
jail-like facilities for months or even years.
Six years after DHS and its interior immigration enforcement component, U.S. Immigration and Customs
Enforcement (known as “ICE”) took over responsibility for
immigration detention, the U.S. system for detaining
asylum seekers is more flawed than ever. As detailed in
this report, thousands of asylum seekers have been
detained during these years. In 2007 alone, over 3,000
asylum seekers were detained on arrival or soon after
arriving in this country, and over 3,000 more in 2008.
They are held in facilities that are actual jails or are

operated like jails. They are often brought in handcuffs and
sometimes shackles to these facilities, where they wear

Jean-Pierre Saselluno, a human rights defender from Guinea, was
detained for four and a half months at an immigration detention facility
in New Jersey. [Photo by Brett Deutsch]

prison uniforms, are guarded by officers in prison attire,
visit with family and friends only through glass barriers,
and have essentially no freedom of movement within the
facilities. The cost of detaining these asylum seekers over
the past six years has exceeded $300 million. 2 During that
time, ICE parole policies have become more restrictive,
and release rates for asylum seekers appear to have

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2—U.S. Detention of Asylum Seekers

dropped. ICE has not provided Congressionally-mandated
statistics—detailing the number of asylum seekers
detained, the length of their detention, and the rates of
their release—in a timely or complete manner. The U.S.
detention system for asylum seekers, which lacks crucial
safeguards, is inconsistent with international refugee
protection and human rights standards.
DHS and ICE have increased their use of prison-like
facilities by at least 62 percent—with six new megafacilities added in just the last five years.3 Some of these
facilities are located far from legal representation and the
immigration courts. More than a third of detained asylum
seekers are not represented by legal counsel, even though
asylum seekers are much more likely to be granted asylum
in immigration court when they are represented.4 At these
remote facilities, detained asylum seekers often see U.S.
immigration judges and asylum officers only on television
sets, with immigration court asylum hearings and asylum
office “credible fear” interviews (which determine whether
an individual will even be allowed to apply for asylum or
will instead be summarily deported) increasingly conducted by video. In fact, more than 60 percent of credible
fear interviews were conducted by video in 2007. A recent
study demonstrated that asylum seekers who have their
immigration court asylum hearings conducted by video are
about half as likely to be granted asylum.5
Through our pro bono representation work, and in
conducting research for this report, we have learned of
many refugees who were jailed for many months—and
some for years—in these prison-like facilities before being
granted asylum in this country. Many asylum seekers
could have been released from detention while their cases
were pending, either on parole or through an immigration
court custody hearing. Providing asylum seekers with
access to fair release procedures does not undermine
security. In fact, the Department of Homeland Security’s
regulations and guidelines on parole expressly prohibit the
release of an individual who presents a risk to the
community or a flight or security risk. The case law

A Human Rights First Report

governing immigration court custody hearings also requires
that the individual establish that he or she does not
present a danger to others, a threat to national security, or
a flight risk.6
In some cases, asylum seekers could have been released,
at significant savings, to a supervised release program. In
fact, while detention costs $95 each day on average,
alternatives to detention cost $10 to $14 for each person
each day. Individuals who have been released through
these programs have continued to appear for their
immigration court hearings at high rates—ranging from 93
to 99 percent. According to ICE, participants in the
intensive supervision appearance program (ISAP)
demonstrated a 91 percent compliance with removal
orders as well.7
Here are just a few examples of some of the refugees who
have been detained for months or years in jails or jail-like
facilities in this country:8
„

A Guinean human rights activist, who had been
abducted by government security forces in his country, was detained for four and a half months in a U.S.
immigration jail in New Jersey. He was only released
three weeks before being granted asylum by a U.S.
immigration court.

„

A Baptist Chin woman from Burma was detained in
an El Paso, Texas, immigration jail for over two years.
ICE denied several parole requests even though she
had proof of her identity and family in the U.S.—only
paroling her after 25 months in detention. She was
subsequently granted asylum in 2008.

„

An Afghan teacher who was threatened by the Taliban
spent 20 months in detention at three county jails in
Illinois and Wisconsin. The teacher was denied release on parole by ICE despite having letters of
support from U.S. government officials who knew him
because he taught at an educational institution sponsored by U.S. and NATO forces in Afghanistan. After a

U.S. Detention of Asylum Seekers—3

U.S. federal court found him eligible for asylum, he
was finally released from detention on an electronic
monitoring bracelet until a final decision granting
asylum was made by the immigration judge in early
2009.
„

A Tibetan man, who was detained for more than a
year and tortured by Chinese authorities after putting
up pro-Tibetan independence posters, was detained
for 11 months at the Elizabeth Detention Center in
New Jersey before being granted asylum by a U.S.
immigration court.

In examining the U.S. detention system and in providing
pro bono legal assistance to individual asylum seekers,
Human Rights First has interviewed scores of refugees who
have been detained in the United States in recent years
before being granted asylum by U.S. authorities. We have
also visited over 10 immigration jails and detention
centers in New Jersey, New York, South Carolina, Texas,
and Virginia (and were denied access to facilities in
California and Illinois), met with local and national
immigration officials, reviewed government reports, sought
statistics and documents through a series of Freedom of
Information Act requests, and interviewed faith-based and
other legal providers, clergy and community-service
groups.9 Our recommendations, outlined at the end of this
report, do not undermine this country’s security. The
United States can both maintain its security while also
living up to its commitments to those who seek protection
from persecution.

Increase in Prison-Like Facilities
“I didn’t expect to be in jail for six months.
I’m not a criminal. I didn’t expect to be
transported in chains. This is not what I
imagined. Especially not from America.”
Refugee from Ethiopia, detained in a Virginia county
jail by ICE for six months during 2007 and 2008 before being granted asylum

Since 2002, the number of immigrants detained each year
has more than doubled—with an increase from 202,000 in
2002 to an estimated population of 442,941 in 2009.
Between 2005 and 2008 alone, ICE increased detention
beds by 78 percent.10 While the vast majority of immigration detainees are not asylum seekers, well over 48,000
asylum seekers have been detained in U.S. jails and
immigration detention centers from 2003 to 2009. While
Congress required U.S. immigration authorities to provide
data relating to the detention and parole of asylum
seekers, ICE has not provided complete statistical
information for these years, and no records for 2005 or
2008 in response to Human Rights First’s requests under
the Freedom of Information Act. As a result, we do not
know the exact number of asylum seekers detained during
this time—only that it certainly exceeds 48,000.11
Between 2003 and 2009, DHS and ICE oversaw:
„

An increase of at least 62 percent in the use of
prison-like detention for asylum seekers and other
immigrants—from 20,662 beds in 2002 to 33,400
beds in jails and jail-like facilities in 2009.12

„

Treatment of asylum seekers like prisoners in
correctional facilities in these jails and jail-like facilities. They are often handcuffed and sometimes
shackled when transported, required to wear prisonlike uniforms—even when they appear in immigration

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4—U.S. Detention of Asylum Seekers

court in front of a judge—and only allowed to visit with
family and friends through a glass partition.
„

The opening of a “family” detention facility—housed in
a former medium-security prison—to detain 500 asylum seekers, other immigrants, and their families.
Children and their parents were all required to wear
prison uniforms, until a lawsuit settlement in August
2007 changed this.

„

The opening of at least 6 new mega-detention
facilities holding more than 1,000 immigration detainees each, for a total of nearly 10,000 beds.

Facility

Detention Beds

Northwest Detention Center, (Wash., 1,061
2004)
South Texas Detention Center, Texas
(Tex., 2005)

1,904

Willacy Detention Center, Texas
(Tex., 2006)

3,000

Stewart Detention Center (Ga., 2006)

1,524

Jena Detention Center (La., 2007)

1,162

Otero County Processing Center
(N.M., 2008)

1,088

TOTAL

9,739

Human Rights First staff, accompanied by pro bono
attorneys and representatives of local faith and community
groups, visited two of these facilities, including the South
Texas Detention Center—a 1,904-bed facility located 57
miles south of San Antonio on the outskirts of the small
town of Pearsall. The detention center is surrounded by
high barbed wire fences, and looks and feels like a prison.

A Human Rights First Report

Asylum seekers and other detainees are required to wear
prison-like uniforms and are held nearly 24 hours a day in
“pods”—large rooms where as many as 100 asylum
seekers and immigrant detainees sleep on narrow bunk
beds, eat their meals, and use the showers and toilets,
which are located behind only a short wall. Asylum seekers
held at this facility have come from a number of countries
including Burma, China, Colombia, Eritrea, Ethiopia,
Honduras, Iraq, and Somalia. About 900 asylum seekers
who had passed through the “credible fear” process were
detained at the facility during 2007 alone.

“[C]ontrary to USCIRF recommendations,
DHS’s use of jails and jail-like facilities has
increased in the past few years.”
U.S. Commission on International Religious Freedom
letter to DHS Assistant Secretary for Policy Stewart
Baker, January 8, 200913

In a comprehensive 500-page study authorized by
Congress and issued in February 2005, the bipartisan
governmental U.S. Commission on International Religious
Freedom (USCIRF) concluded that it was not appropriate
for the United States to detain asylum seekers in prisonlike conditions. The Commission recommended that the
criteria for release of asylum seekers on parole be put into
regulations, and that when detention was necessary, ICE
should use less restrictive (yet secure) facilities. Guidelines issued by the United Nations High Commissioner for
Refugees (UNHCR) have also made clear that, when
asylum seekers are detained, “[t]he use of prisons should
be avoided.”14
Instead of decreasing its reliance on jails and jail-like
detention, the Department of Homeland Security has
actually increased its use of these facilities—adding or
using, according to Human Rights First’s calculations,
more than 9,000 additional immigration detention beds in
jails or jail-like facilities since the Commission issued its
report in February 2005.15

U.S. Detention of Asylum Seekers—5

Deficient Medical Care in Detention
U.S. government assessments and media reports
have found serious deficiencies in the health care
provided to asylum seekers and immigrants in U.S.
immigration detention, including:
„ Severe staffing shortages, with nearly 140 medical
staff openings and an 18 percent vacancy rate for
medical staff;
„ 90 deaths of detainees since ICE’s inception in
2003, including 13 suicides;
„ Failure to use interpreters to communicate with
detainees during medical exams, in some cases
leading to dangerous misdiagnoses;16
For example, a refugee from Somalia was misdiagnosed and given anti-psychotic drugs by the doctor
who examined her at an immigration detention center
in Elizabeth, New Jersey. Her pro bono attorney,
recruited by Human Rights First, repeatedly contacted the facility to express concern after two
outside doctors reported that she appeared “dull, or
drugged,” began lactating, and suffered from nausea
and vomiting.17

Detention Without Safeguards
“Parole is available for Mother Teresa.”
ICE detention and removal officer at an Arizona facility, early 200818

The current system for detaining asylum seekers who
request protection at U.S. airports and borders is
inconsistent with international standards.19 Asylum seekers
have been detained for months or sometimes for years,
even when they can establish their identities, community

ties, and that they do not present a flight risk or a danger
to the community. The initial detention is “mandatory”
under the expedited removal provisions of the 1996
immigration laws. The decision to release an asylum
seeker on parole—or to continue his or her detention for
longer—is entrusted to local officials with ICE, which is the
detaining authority, rather than to an independent
authority or court. The parole criteria that are specific to
asylum seekers are contained in an ICE policy directive
rather than the relevant regulations and have often been
ignored by local officials who may base their decisions on
other factors, such as the availability of “bed space” at
local facilities. The system also fails to provide for regular
review of the need for continued detention although an
asylum seeker’s case may take months or even years to
make its way through the adjudication system.20
ICE acts, in effect, as both judge and jailer with respect to
parole decisions for asylum seekers. If parole is denied by
ICE, the decision cannot be appealed to a judge—even an
immigration judge. While immigration judges can review
ICE custody decisions for other immigration detainees,
they are precluded under regulatory language from
reviewing the detention of so-called “arriving aliens,” a
group that consists overwhelmingly of the asylum seekers
who are detained when they seek protection upon arriving
at airports and other U.S. entry points.21
In the years since DHS and ICE took over responsibility for
the detention of asylum seekers:
„

The rate of release on parole for asylum seekers
appears to have dropped. Parole rates fell from 86.1
percent in 2001 to 62.5 percent in 2003. While ICE
has not provided comprehensive and consistent statistics for recent years, the limited information that
has been made available indicates that very few asylum seekers have been released from detention on
parole. For example, during an eight-month period in
2007 to 2008, out of a minimum of 842 asylum
seekers eligible to apply for parole, only 107 asylum

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6—U.S. Detention of Asylum Seekers

seekers (or 13 percent) were paroled. In addition to
these 842 asylum seekers who passed their screening interviews, there were many others who were
already detained at the beginning of this period and
who may have been eligible for parole.22
„

ICE issued a more restrictive parole policy for asylum
seekers—a policy that is inconsistent with the recommendations of the U.S. Commission on International
Religious Freedom. The new policy, issued in November 2007, includes an additional set of assessments,
and does not require ICE to determine the eligibility of
all detained asylum seekers for parole. As a result,
asylum seekers who are not represented or who do
not speak or write English may not be assessed for
release on parole.23

„

In interviews with Human Rights First researchers,
attorneys who work with asylum seekers across the
country reported that parole remains difficult to obtain for the asylum seekers whom they believe meet
the criteria. In one location, Human Rights First has
observed an increased parole rate, though the
change may be due to staff changes at the local ICE
office.

„

In several locations, asylum seekers have been
required to post bonds that are simply too high for
this population to be able to pay—resulting in many
months of additional detention for some asylum
seekers.

„

While the use of various supervised release and
electronic monitoring programs have increased—
primarily as the result of some specific congressional
funding—ICE has not implemented an effective nationwide program of “alternatives to detention.”

A Human Rights First Report

As a result, many asylum seekers who could have been
released from detention have been jailed by ICE in U.S.
jails and immigration detention centers for months or
longer. Here are just a few examples:24
„

Tibetan monk detained in Texas for over a year. A
Tibetan monk, who supported the Dalai Lama and
was arrested for participating in pro-Tibetan demonstrations, was detained at an immigration jail in south
Texas while his request for asylum was pending. He
remained in detention for more than a year even
though his attorney had previously made a request to
ICE for his release on parole, and he had proof of his
identity as well as a sponsor willing to house him. He
was only released from detention after the U.S. immigration court granted his request for asylum.

„

Pastor from Liberia detained in New Jersey immigration jail. A Pentecostal pastor who fled Liberia, after
learning he was in danger because he criticized the
use of child soldiers by the forces of Charles Taylor,
was detained for three and a half months in a New
Jersey immigration jail. His request for release on
parole, which was supported by religious leaders in
West Virginia, Virginia and Maryland, was denied by
ICE. He was only released from detention after he was
granted asylum by a U.S. immigration court.

„

Colombian refugee detained in Arizona immigration
jail for over a year. A Colombian refugee, who had
been detained and tortured following his participation
in a political demonstration in Colombia, was detained in a U.S. immigration jail in Arizona for 14
months even though he could have been released to
the care of his U.S. citizen father and daughter. ICE
denied his request for release on parole, even after
an immigration court had ruled he was eligible for
asylum. This refugee was finally released from detention two weeks after the judge’s ruling was affirmed
on appeal.

U.S. Detention of Asylum Seekers—7

detention was itself a significant cause of anxiety and
mental distress. 25

A Pastor from Liberia was detained for three and a half months in a New
Jersey immigration jail. He was denied parole and was only released
after a U.S. immigration court granted him asylum.

Impact of Detention on Asylum
Seekers
“I was scared. I thought they might beat me,
because when I was in Tibet the Chinese
beat me all the time.
Refugee from Tibet, who was in immigration detention
in the United States for 11 months before being
granted asylum by a U.S. immigration court.

Over the last six years, medical and mental health experts
have documented the harmful impact of detention on the
physical and mental health of asylum seekers. One report,
issued by Physicians for Human Rights (PHR) and the
Bellevue/NYU Program for Survivors of Torture, concluded
that detention inflicts further harm on what is an already
traumatized population. The report found that detained
asylum seekers suffer from extremely high levels of anxiety,
depression, and Post Traumatic Stress Disorder (“PTSD”),
and that their psychological health worsens the longer they
remain in custody. In fact, uncertainty about the length of

Detention also impacts the ability of an asylum seeker to
establish his or her eligibility for asylum. Not only is it
more difficult for a detained asylum seeker to gather
documentation in support of his or her case, but it is also
more difficult for that asylum seeker to secure legal
representation. (Unlike in the criminal justice system, the
civil immigration system does not provide attorneys for
individuals who are unable to afford private counsel.) U.S.
government statistics confirm that representation rates are
much lower for asylum seekers who are detained in this
country: more than a third of detained asylum seekers
don’t have legal representation. At the same time, multiple
studies, based on government statistics, have confirmed
that asylum seekers who are represented are three times
as likely to be granted asylum. The U.S. Commission on
International and Religious Freedom concluded that
detained asylum seekers who had passed through the
“credible fear” process were more than twelve times as
likely to win asylum if they were represented.26
Some asylum seekers abandon their requests for asylum
in the United States, because they cannot bear to be
detained any longer in a U.S. immigration jail. Others give
up efforts to block their deportation while their cases are
on appeal. For example, after over 17 months in a U.S.
immigration detention facility and a local jail, a young
woman from Colombia decided to accept deportation
because she could no longer cope with the stress of
detention. A U.S. Court of Appeals subsequently ruled that
she had a well-founded fear of persecution in Colombia.
The court noted that the asylum seeker had “averred that
despite the fact that her ‘fear of persecution is as strong
as ever[,]’ the detention was, in her words, ‘affecting me
physically and destroying me mentally’ and suggested that
her detention in the United States served as a daily and
unwelcome reminder of the indignity of detention at the
hands of the FARC, [an armed guerilla group that had
abducted her twice.]”27

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8—U.S. Detention of Asylum Seekers

Financial Cost of Detention
The financial cost of immigration detention has skyrocketed in recent years, with ICE’s detention and removal
budget doubling in the past four years. In 2009, ICE will
be paying $1.7 billion for “custody operations.” Releasing
eligible asylum seekers on parole, or to a “supervised
release” program, is much more cost effective. While
detention averages $95 per day, alternatives to detention
range from $10 to $14 a day; and release through regular
parole incurs no additional daily cost.28 ICE does not report
on the amount it spends to detain asylum seekers, who
constitute only a portion of detained immigrants—and
indeed does not precisely track the number of detained
asylum seekers or the actual length of their detention.
Using various government statistics, Human Rights First
has calculated that ICE spent somewhere over $300
million to detain asylum seekers from 2003 to February
2009. The costs are likely higher as ICE has not provided
to Human Rights First statistics for 2005, 2007, or 2008,
and ICE does not include longer term detentions in the
averages it has provided.29
While costs at different facilities vary, Human Rights First
has calculated that:
„

ICE spent about $5.7 million to detain 900 asylum
seekers at the South Texas Detention Center in Pearsall during 2007;

„

ICE spent about $90,000 to detain a refugee woman
from Burma in an El Paso, Texas immigration jail for
over two years;

„

ICE spent nearly $115,000 to detain an asylum
seeker from Sri Lanka at the Elizabeth, New Jersey
detention facility for two and a half years, before releasing him on an electronic monitoring device;

A Human Rights First Report

„

ICE spent more than $15,000 to detain a refugee
from Zimbabwe for 3 months, more than $20,000 to
detain a refugee from Haiti for 4 months—both in New
Jersey—and nearly $20,000 to detain a Tibetan refugee for 8 months in California.30

Escalation of Detention
in Remote Areas

The 3,000-bed Willacy Detention Center in Raymondville, Texas—
nicknamed “Tent City” and “Ritmo”—opened in 2006.

As DHS and ICE have expanded immigration detention
over the last few years, they have repeatedly chosen to
detain asylum seekers and immigrants in new facilities
that are located in areas that are not near pro bono legal
resources, the immigration courts, and U.S. asylum offices.
In too many instances, facilities used by ICE were opened
or used for months or even years before a Legal Orientation Program was put in place to provide basic legal
information to detainees—a decision which left thousands
of asylum seekers and other immigrant detainees without
basic legal information and counseling to help them
navigate the system and try to obtain legal representation.
The remote location of some of these facilities has also

U.S. Detention of Asylum Seekers—9

made it much more difficult for many of these asylum
seekers to secure legal representation.

Looking Forward

At the same time, asylum seekers and other immigrant
detainees increasingly see immigration judges and U.S.
asylum officers not in person but only on television
screens—with video conferencing equipment being
installed in 47 immigration courts and more than 77 other
locations, including detention centers. For example, the
new facility in Pearsall, Texas—where 900 “credible fear”
asylum seekers were held in 2007—the Willacy Detention
Center in Raymondville, Texas, and the Otay Mesa Facility
in San Diego, California are all outfitted with video
conferencing equipment. At these facilities, nearly all
immigration court hearings are conducted by video.
Asylum seekers who have their asylum hearings conducted
by video are about half as likely to be granted asylum
according to a 2008 study based on immigration court
statistics, which was published in the Georgetown
Immigration Law Journal.31 A finding by the immigration
court as to the asylum seeker’s credibility is central to the
claim. However, the study concludes that the use of video
conferencing alters the way a judge perceives an asylum
applicant’s testimony and the technology does not
accurately capture and convey non-verbal elements, some
changes in tone, and body language. The U.S. asylum
office, a division of the U.S. Citizenship and Immigration
Services, conducted over 60 percent of “credible fear”
screening interviews by video conference in 2007,
primarily through its Houston, Texas office. According to
statistics provided by the asylum office, the “pass” rates
for credible fear interviews conducted in-person and those
conducted by video conference are comparable. Statistics
also show a substantial drop in credible fear pass rates
between 2004 and 2008.32

The United States has pledged to treat those who seek
asylum in this country in accordance with its commitments
under the Refugee Convention and its Protocol, and the
International Covenant on Civil and Political Rights, which
protects individuals from arbitrary detention. Under
international standards, asylum seekers should generally
not be detained. When they are, that detention should
have adequate safeguards, including procedures to ensure
review by an independent authority or court. When some
supervision is necessary, alternatives to detention should
be used. And when as asylum seeker is detained, he or
she should not be held in penal or prison-like conditions.
As the new leadership of the Department of Homeland
Security reviews policies, practices, and structures, it has
the opportunity to reform detention policies and practices—and to ensure that the Department adequately
prioritizes the protection of those who flee to this country
in search of refuge. The Secretary of Homeland Security
should direct the Department of Homeland Security,
Immigration and Customs Enforcement, U.S. Citizenship
and Immigration Services, and Customs and Border
Protection to implement the reforms outlined in this report.
In making some of these changes, the Department of
Homeland Security and the Department of Justice will
need to work together. The new leadership of the
Department of Justice should review and revise the
Department’s regulations, policies and practices to ensure
that the U.S. meets its commitments to refugees and
asylum seekers under both U.S. and international law.
In addition to providing crucial oversight, Congress should
also take steps to ensure lasting reforms by passing
legislation that puts critical safeguards on the use of
detention into law.
A more detailed set of recommendations is included at the
end of this report. Outlined below are some critical first
steps:

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10—U.S. Detention of Asylum Seekers

to be necessary, the individual should be assessed
for release to a supervised release program or other
alternative to detention program. These programs
should include community support mechanisms, such
as case managers, referrals to legal and social service providers, and assistance accessing information
relating to immigration proceedings. Electronic monitoring devices (ankle bracelets) should only be used
when determined to be necessary after a fair and
individualized assessment, and should not be used in
a manner that restricts freedom of movement to such
an extent as to essentially constitute continued custody.

1. Review of Detention by the Immigration
Courts
The Departments of Justice and Homeland Security
should revise current regulatory language to provide
arriving asylum seekers with the chance to have their
custody reviewed in a hearing before an immigration court,
a safeguard afforded other immigration detainees.33 In
revising these provisions, the regulations should make
clear that any bond requirements should be appropriate to
the circumstances and means of the asylum seeker, and
that the immigration courts can direct that an individual be
released into an alternatives to detention program.
The U.S. Congress should also enact legislation providing
these asylum seekers with access to immigration court
custody hearings to ensure lasting change by putting this
change into law as well.

2. Other Reforms to Limit Unnecessary
Detention
In addition to ensuring immigration court review of
detention for asylum seekers, the Department of
Homeland Security and Immigration and Customs
Enforcement should reform the parole process and create
a nationwide program for supervised release or other
alternatives to detention.
„

„

Reform the Parole Process: The Department of
Homeland Security, Immigration and Customs Enforcement, should issue regulations providing for the
release of an asylum seeker who can establish identity, has ties to the community, satisfies the credible
fear standard, and does not pose a danger to the
community. Asylum seekers who are determined by
immigration courts to be entitled to asylum or withholding of removal should be released.
Create a Nationwide System of Supervised Release.
When an asylum seeker is not eligible for release on
parole and some additional supervision is determined

A Human Rights First Report

3. Stop Using Jail-like Facilities
The Department of Homeland Security and Immigration
and Customs Enforcement should stop using jails and
jail-like facilities to detain asylum seekers and other
immigration detainees. The Department should also end
the practice of detaining families. Instead, asylum seekers
should be:
„

Released from detention on parole or through an
immigration court custody hearing if they meet the
applicable criteria; or

„

Released to a supervised release program, or other
alternative to detention program, if some supervision
of the release is necessary.

When asylum seekers are detained—during the period of
initial “mandatory” detention under the U.S. expedited
removal statute, or if continued detention is determined to
be necessary after a fair and individualized assessment—
they should not be held in penal or prison-like facilities,
but rather in facilities where they can wear their own
clothing and the conditions of their detention are not
prison-like, as outlined below.

U.S. Detention of Asylum Seekers—11

4. Stop Opening Remote Facilities and Ensure
Adequate Legal and Other Support Prior to
Using Facilities
The Department of Homeland Security and Immigration
and Customs Enforcement should stop opening and using
facilities located in remote areas that are far from legal
representation resources, immigration courts, or an
adequate pool of medical staff.
The Department of Homeland Security and Immigration
and Customs Enforcement should work with the Department of Justice and U.S. Citizenship and Immigration
Services to ensure that legal orientation presentations,
access to adequate legal representation, full medical
staffing, immigration judges and asylum officers (inperson, and not by video conferencing), and pastoral care
are actually in place and funded before detaining asylum
seekers or other immigrants at a facility.
Both the immigration courts and the U.S. Citizenship and
Immigration Services asylum office should devote
adequate staffing to—and Congress should provide
adequate funding to—conduct asylum hearings and
credible fear interviews in person and in a timely manner.
ICE should not open and use facilities in areas that will not
be accessible for immigration judges and asylum officers.
The immigration courts should stop conducting asylum
merit hearings by video.

5. Improve the Conditions of Detention
Detention Should not be Based on a Penal Model: The
detention standards should be revised to provide for
detention in which individuals can, for example: wear their
own clothing (rather than prison uniforms); have contact
visitation (as opposed to visits through plexi-glass barriers)
with family and friends; and have freedom of movement
within the secure facility (so they can use outdoor areas,
libraries, indoor recreation, or cafeteria areas during the
course of the day). Officers should not wear prison guard

uniforms, but should be dressed in an alternate uniform,
such as a white shirt and tan pants. Handcuffs and
shackles should not be used in facilities or during
transportation absent extraordinary circumstances. Some
of these changes could, and should, be made at some
facilities immediately.
Medical and Mental Health Care Must be Improved: The
Department of Homeland Security and ICE should take
steps to improve the provision of medical and mental
health care at all facilities where asylum seekers and other
immigrant detainees are held, seeking input from
independent experts and medical professionals, many of
whom have provided detailed recommendations on
improving medical care.34 These reforms should ensure
that:
„

Medical units have an appropriate level of staffing
prior to detaining asylum seekers and other immigrants at a facility, and a mechanism to ensure that
detainees are removed from facilities that do not
have adequate medical staffing.

„

Interpretation services are appropriately used during
medical visits at all facilities, including by creating a
mechanism and/or form to evaluate and monitor the
use of interpreters by medical staff at facilities.

„

Mental health care should include specialized
counseling for survivors of torture and trauma.

Congress should continue to provide increased oversight
on issues relating to detainee health care and deaths, and
should pass legislation mandating improved medical care
and the independent investigation of detainee deaths.

6. Protection Mechanisms at the Department
of Homeland Security
The Secretary of Homeland Security should:
„

Create an Asylum and Refugee Protection Office
within the DHS Secretary’s Office. This office should

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12—U.S. Detention of Asylum Seekers

ensure that policies, practices and legal interpretations relating to asylum seekers and refugees are
consistent with this country’s legal commitments and
that the reforms recommended in this report are implemented. This office, as detailed in the
recommendations at the end of this report, should be
provided with the resources, staffing and authority to
oversee policies and practices relating to asylum
seekers and refugees throughout DHS.
„

Maintain a Senior Refugee and Asylum Policy
position in the DHS policy office, and provide sufficient staffing and resources.

„

Strengthen the Deputy Secretary’s capacity and
chain-of-command authority to ensure that the Asylum and Refugee Protection Office’s directives and
guidance are followed by the various immigrationrelated agencies.

„

Direct the DHS General Counsel to make asylum
seeker and refugee protection a priority.

7. Provide Timely and Accurate Statistics
The Department of Homeland Security should ensure that
Immigration and Customs Enforcement improves its
systems for tracking data relating to the detention of
asylum seekers, including data reflecting the number of
detained asylum seekers, their age, their gender, the
location of their detention, the length of their detention,
and their parole or release from detention. This information, which is required by law to be provided annually to
Congress and to the public on request, should be provided
to both Congress and the public immediately after the end
of each fiscal year in a timely manner.

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8. Improve Conduct of Expedited Removal
The Department of Homeland Security should ensure that
U.S. Customs and Border Protection (CBP) implements
critical reforms recommended by the U.S. Commission on
International Religious Freedom, ensures that procedures
designed to protect asylum seekers from being returned to
persecution are followed, and stops detaining asylum
seekers who arrive with valid visas that are considered
invalid by CBP solely because the individual requests
asylum.
U.S. Citizenship and Immigration Services should request
and allocate appropriate funding so that credible fear
interviews are conducted in person and in a timely
manner; and conduct an assessment of the decline in the
credible fear grant rate, the decline in referrals for credible
fear interviews and the impact of video conferencing on
the conduct and outcomes of credible fear interviews.
Congress should authorize the U.S. Commission on
International Religious Freedom to conduct a review of the
expanded use of expedited removal and its impact on
asylum seekers, and should provide appropriate funding
for this assessment.

U.S. Detention of Asylum Seekers—13

Introduction and Background
“To hear that America is a country of freedom, and you decided to ask for protection, and then
you’re put in jail, I was very surprised…This was my first experience going to jail. I had never broken
the law before.”
Refugee from Cameroon who was detained for nearly 11 months in county jails in Illinois and Wisconsin and denied release
on parole. He was granted asylum in September 2008.

U.S. Tradition of Welcoming the
Persecuted

safety here in the last thirty years, and the U.S. resettlement program serves as a model to the rest of the world.37

In the wake of World War II, the United States played a
leading role in building an international refugee protection
regime to ensure that the world’s nations would never
again refuse to extend shelter to refugees fleeing
persecution and harm. The United States has committed
to the central guarantees of the 1951 Refugee Convention
and its 1967 Protocol. The United States passed the
Refugee Act of 1980 in order to bring the country’s laws
into compliance with the Refugee Convention and
Protocol, by incorporating into U.S. law the Convention’s
definition of a “refugee” and the principle of nonrefoulement—which prohibits the return of refugees to
countries where they would face persecution. 35

The Department of Homeland
Security and Asylum Seekers

In 2008, 10,000 refugees were granted asylum by U.S.
asylum officers, and nearly 11,000 more were granted
asylum by U.S. immigration courts.36 In addition to
providing protection to asylum seekers who have already
reached its shores, the United States has also played a
leading role in the resettlement of refugees who are
stranded in refugee camps and other locations abroad.
This country has brought nearly 2.8 million refugees to

On March 1, 2003, the Immigration and Naturalization
Service (INS) was abolished and its functions transferred
to the new Department of Homeland Security (DHS). The
mission of DHS, which is spelled out in the Homeland
Security Act, is to prevent terrorist attacks in the United
States, reduce the vulnerability of the United States to
terrorism, and minimize the damage from terrorist
attacks.38 As a result of this transfer of immigration
functions, asylum seekers now interact with three separate
bureaus within DHS:
„

When an asylum seeker arrives at an airport or a
border entry post, he or she is initially inspected and
interviewed by officers from U.S. Customs and Border
Protection (CBP). If encountered in the border areas,
asylum seekers are detained and interviewed by officers with the Border Patrol, also part of CBP.

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14—U.S. Detention of Asylum Seekers

„

„

If that asylum seeker is detained, U.S. Immigration
and Customs Enforcement (ICE) is the component
agency responsible for his or her detention. ICE “trial
attorneys” will also represent the agency in immigration court removal proceedings, typically opposing the
asylum seeker’s request for protection.
Before the asylum seeker will even be allowed to
request asylum, though, he or she will first have to be
interviewed by an asylum officer with U.S. Citizenship
and Immigration Services (USCIS). USCIS also conducts asylum interviews for asylum seekers who apply
for protection after they have entered the country and
who are not generally detained.

This separation of immigration functions, coupled with the
Department’s mission, raised concerns from the start that
cross-cutting issues relating to the protection of asylum
seekers and refugees would “fall between the cracks” or
be difficult to resolve within DHS. As a result, Human
Rights First recommended that the Department create a
high-level office to coordinate and ensure protection for
refugees and asylum seekers.39 In its 2005 report, the U.S.
Commission on International Religious Freedom (USCIRF)
found that it was “exceedingly difficult to address interbureau issues” relating to the detention of asylum seekers
and expedited removal, and recommended that DHS
create an office to coordinate policy and monitor the
implementation of procedures affecting refugees and
asylum seekers.40
While former DHS Secretary Michael Chertoff created a
new position of Special Advisor for Refugee and Asylum
Affairs in 2006, the office was quickly given broader
responsibility over immigration policy, limiting its capacity
to address and resolve a range of cross-cutting refugee
issues, including the detention of asylum seekers. In fact,
it took the Department nearly four years to issue a
coordinated substantive response to the findings and
recommendations of the U.S. Commission on International
Religious Freedom’s 2005 report.

A Human Rights First Report

Expedited Removal and its
Expansion
Since taking over immigration functions in 2003, the
Department of Homeland Security has expanded its use of
“expedited removal,” a summary deportation process
enacted in 1996 that provides for the “mandatory
detention” of asylum seekers who are subject to its
provisions. Under this expedited process, immigration
officers were given the power to order the immediate
deportation of people who arrive in the United States
without proper travel documents—a power previously
entrusted to immigration judges. Many refugees arrive
without proper travel documents, unable to obtain them
from the governments which they flee.
While genuine asylum seekers are not supposed to be
deported under expedited removal, the process is so hasty
and lacking in safeguards that mistakes can and do
happen. In fact, USCIRF found serious flaws in maintaining
safeguards in the process, documenting that immigration
inspectors failed to inform individuals that they could ask
for protection if they feared returning to their countries (in
about half the cases observed by USCIRF experts) and
ordered the deportation of individuals who expressed a
fear of return (in 15 percent of the observed cases).41
When the expedited removal process was first created, the
former INS applied it only to those who sought admission
at a U.S. airport or border entry point without valid
documents. Now, expedited removal also applies to those
encountered within 100 miles of U.S. borders if they have
been in the country for less than 14 days. The number of
individuals subject to this summary process has increased
significantly—in 2002, 34,624 individuals were deported
through expedited removal, but this number more than
tripled to 106,200 in fiscal year 2007.42

U.S. Detention of Asylum Seekers—15

Haitian Pastor Detained For Requesting
Protection
In the fall of 2004, the 81-year-old Reverend Joseph
Dantica arrived at the Miami International Airport from
Haiti, traveling on his own valid passport and visa. He
had been persecuted in Haiti after U.N. forces and
Haitian police officers fired at armed gang members
from the roof of his church. After he indicated to U.S.
immigration inspectors that he wanted to seek temporary asylum in the United States, the Customs and
Border Protection officers detained him, considering
his visa invalid because he honestly indicated that he
might need protection.43
He was put into the expedited removal process and
detained. Reverend Dantica was brought to the Krome
immigration detention facility in Miami, where he was
given a prison uniform to wear. At the facility, his blood
pressure medication was taken from him. After several
days in detention, Reverend Dantica collapsed during
his credible fear screening interview, which was held at
the detention facility. A nurse from the Division of
Immigration Health Services (DIHS)—which provides
health services for immigration detainees—accused
him of faking his illness. Reverend Dantica was
handcuffed and transported to a hospital where he
died the next day.44

Individuals who express a fear or concern about return are
not supposed to be immediately deported. Instead they
are subject to “mandatory detention” until they are
determined to have a “credible fear of persecution” by a
U.S. asylum officer (or an immigration judge in a
subsequent review). Even those who arrive on valid
passports and otherwise valid visas are considered to be
subject to the expedited removal process by U.S. Customs
and Border Protection officers if they express a fear of
return.45 Indeed, a number of the asylum seekers

interviewed by Human Rights First arrived in this country
on their own valid passports. Those who do not meet the
credible fear standard are deported, and those who do
meet the standard are allowed to request asylum in the
United States—though, as detailed in this report, they
often remain in U.S. immigration jails for months or longer.
Despite the increase in the number of individuals placed
into expedited removal, the number of individuals
identified as potential asylum seekers by U.S. Customs
and Border Protection officers has dropped significantly.
Nearly 10,000 individuals were referred by immigration
inspectors for “credible fear” interviews in 2002 (and
therefore sent to U.S. detention facilities for these
screenings instead of being immediately deported).46 In
fiscal year 2007, however, only 5,285 individuals were
referred for these asylum screening interviews.47 In
addition, the rate at which U.S. Citizenship and Immigration Services asylum officers have found asylum seekers to
meet the “credible fear” standard has also fallen sharply.
From 2000 to 2004, the average passing rate of those
referred for a credible fear interview was 93 percent as
reported by the U.S. Commission on International
Religious Freedom.48 By fiscal year 2008, the pass rate
had dropped to 59 percent.49 In some parts of the country
these pass rates are significantly lower than the national
average.50

Detention of Asylum Seekers
Since October 1, 2003, the Department of Homeland
Security has detained more than 23,000 asylum seekers
under the expedited removal process.51 These asylum
seekers—over 6,000 in 2007 and 2008 alone—were
mandatorily detained upon their arrival or in border areas
shortly after arrival, and were subsequently determined to
have a credible fear of persecution by U.S. asylum
adjudicators. In addition to those who are subject to
expedited removal, thousands more asylum seekers are

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16—U.S. Detention of Asylum Seekers

detained once they are already in the United States.52
While asylum seekers who apply for protection “affirmatively” after they have entered the country are not generally
detained, their detention is on the rise as well.53
Congress has mandated that the government gather and
publish statistics on the detention and release of asylum
seekers.54 While Immigration and Customs Enforcement
has not provided all of the required statistics, based on
those that have been provided, it appears that at least
48,000 asylum seekers have been detained since March
2003 (when DHS took over immigration enforcement
responsibilities)—though the actual number is likely
significantly higher.55
Asylum seekers who have been detained under expedited
removal can request that ICE release them on parole after
they have been determined to meet the credible fear
standard—but those who are detained on arrival are not
given access to immigration court custody hearings, a
safeguard that is provided to other asylum seeker and
immigrant detainees. The Department of Homeland
Security’s regulations and guidelines on parole expressly
prohibit the release of an individual who presents a risk to
the community or a security risk. The case law governing
immigration court custody hearings also requires that the
individual establish that he or she does not present a
danger to others, a threat to national security, or a flight
risk.56

A Human Rights First Report

As detailed in this report, many asylum seekers remain in
detention while their asylum cases are pending. According
to U.S. government statistics from 2004—the last year for
which such data has been provided—asylum seekers are
detained for an average of nearly two and a half months
(though, as discussed below, this “average” does not
include some longer term detentions).57 A survey of Human
Rights First clients detained between 2003 and 2008
reflects an average length of detention of five to six
months for those who were determined by U.S. adjudicators to be “refugees” entitled to protection. Many will
remain in detention longer—sometimes even years—while
their cases are decided.

U.S. Detention of Asylum Seekers—17

Increase in Prison-Like Facilities
“It was like being in a cage for the first time, all the time, 24/7. You start thinking—why are they
treating me this way?”
Refugee from Zimbabwe, who was persecuted due to his pro-democracy advocacy and was detained in a New Jersey detention facility for over three months before being granted asylum

“The overwhelming majority of asylum seekers referred for credible fear are detained—for weeks or
months and occasionally years—in penal or penitentiary-like facilities.”
U.S. Commission on International Religious Freedom, Report Card, February 200758

In the United States, the Department of Homeland
Security uses jails and jail-like facilities to detain asylum
seekers and other immigrants held for administrative
immigration violations. Immigration and Customs
Enforcement (ICE), the DHS component agency that
currently has authority over the detention of asylum
seekers, holds asylum seekers in jail-like detention centers
managed by ICE or by private contractors, as well as in
hundreds of county jails.59 In these penal and penitentiarylike facilities, asylum seekers are treated like prisoners in
correctional facilities. For example, they are typically
handcuffed and sometimes shackled when transported,
required to wear prison-like uniforms—even when they
appear in immigration court in front of a judge—and only
allowed to visit with family and friends through a glass
partition.60
DHS and ICE have increased their use of jail-like detention
for asylum seekers and other immigrants by 62 percent
since taking over responsibility for immigration enforcement in 2003. In 2002, the former INS used 20,662 jaillike detention “beds.” Over recent years, this number has

Refugee from Zimbabwe, who was persecuted due to his pro-democracy
advocacy, and was detained at a U.S. immigration detention facility for
over three months before being granted asylum. [Photo by Brett
Deutsch]

grown significantly—to 33,400 immigration detention
“beds” in 2009. According to a February 2009 report by
the Government Accountability Office, the average daily
population of detainees grew by about 40 percent from

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18—U.S. Detention of Asylum Seekers

fiscal year 2003 through fiscal year 2007, with the most
growth occurring since 2005.61

tions, as the Commission observed in January 2009,
“contrary to USCIRF recommendations, DHS’s use of jails
and jail-like facilities has increased in the past few
years.”64 In fact, since the Commission released its report
in early 2005, DHS has added more than 9,000 immigration detention beds in jails or jail-like facilities.65

The Prison Model Used for
Detention of Asylum Seekers

In many of the detention centers and jails, asylum seekers and other
immigrant detainees have little or no privacy.

In recent years, ICE has contracted with a number of
private companies to open a series of massive new prisonlike facilities. These facilities, located in Georgia,
Louisiana, Texas, and Washington State, hold more than
1,000 immigrant and asylum seeker detainees each, for a
total of nearly 10,000 new detention beds. ICE also rents
bed-space from more than 500 state and county facilities
to house over half of all immigration detainees.62 Over the
last year, Human Rights First staff have interviewed
detainees and former detainees held at a dozen different
detention centers and county jails in California, Illinois,
New Jersey, New York, Texas, Virginia, and Washington
State, and visited more than 10 of these jails and jail-like
facilities in New Jersey, New York, South Carolina, Texas
and Virginia. ICE denied our staff access to several
additional facilities in Illinois and California.
In its February 2005 report, the bipartisan U.S. Commission on International Religious Freedom (USCIRF)
concluded that it was not appropriate to detain asylum
seekers in prison-like conditions, recommending instead
the use of less restrictive (yet secure) facilities when
detention was necessary.63 Despite these recommenda-

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“Upon arriving in El Paso, I turned myself
into immigration because I did not know
where I was. I thought that by doing this, I
was coming in legally, and that the Americans would help me…Then two officers
came and handcuffed me and took me to a
jail in El Paso.”
Refugee from Burma, detained for 7 months at the
El Paso Service Processing Center in Texas.

“If someone came to ask refuge in your
country, you don’t have to put them in a
jail. You have to try to find a way to help
him out, because he came all the way from
his country, running away, he finally gets
here for refuge, and then you put him in
jail.”
Refugee from Burundi, granted asylum by the U.S.
immigration court after 4 and a half months at the
Port Isabel Service Processing Center in Texas

“It is what it is, we run a jail.”
Superintendent of a Virginia county jail detaining
250-300 immigration detainees, including asylum
seekers66

U.S. Detention of Asylum Seekers—19

“They have this mentality: because I am
here, they think I’m a criminal.”
Asylum seeker from Zimbabwe, detained at the Hampton Roads Regional Jail in Virginia

Asylum seekers are detained in jails and jail-like facilities
in nearly every state, including Arizona, California, Florida,
Georgia, Illinois, Maryland, Minnesota, New Jersey, New
Mexico, New York, Washington State, Texas, Virginia, and
Wisconsin.67 In nearly all of these facilities, ICE detains
asylum seekers in penal and penitentiary-like conditions:
asylum seekers and other immigrant detainees are
stripped of their own clothing and given prison uniforms,
not allowed any contact visits with family or friends, and
lack meaningful privacy and access to outdoor recreation.
Their freedom of movement within the facilities is
restricted, and they typically spend 23 hours a day in their
“pods”—large dormitories or common areas that can hold
up to 100 people.
Handcuffs and Shackles. Human Rights First staff have,
over the years, interviewed hundreds of asylum seekers
who have been handcuffed by U.S. immigration authorities
and their contractors upon arrival at U.S. airports or border
entry points, and whenever they are transported—including
when they are taken to court for a hearing or to the
hospital.68 When they are handcuffed, sometimes their
wrists are also secured to a “belly chain” around their
waists. The USCIRF’s expert on detention conditions found
use of physical restraint in 18 of the 19 facilities he
surveyed. USCIRF also reported that staff at the Tri-County
Jail in Ullin, Illinois, used handcuffs, belly chains, and
shackles when detainees were transported outside the
facility.69 Immigrant detainees at the 1,030-bed Northwest
Detention Center in Tacoma, Washington are also
handcuffed and shackled when they are transported,
according to a June 2008 report by the Seattle University
School of Law International Human Rights Clinic and the
organization OneAmerica.70 Arriving asylum seekers are
usually handcuffed and shackled at the John F. Kennedy

International Airport in New York and the Newark Liberty
Airport in New Jersey.71 Asylum seekers apprehended at
the El Paso, Texas border entry point have also described
being handcuffed. An asylum seeker who was detained at
the Greyhound bus station in New Orleans also reported
being handcuffed and shackled with a belly chain by
immigration officers. Furthermore, asylum seekers, like
other immigration detainees, are sometimes shackled
when they are brought before a judge for their hearings.
Local practitioners report that this is often the case at
immigration courts located in Chicago, San Francisco,
Minnesota, New Jersey, and New York.72 Even the ICE
Detention Standards—which are modeled on penal
standards—recognize that use of physical restraints should
be limited to situations when restraints are needed “to
gain control of a dangerous detainee, under specified
conditions.”73

“I saw two guys come and they’re holding
chains. They handcuff me. I said—What’s
happening? They said: It’s for your safety
and ours too. They handcuffed me and put
a chain around my waist and shackled my
legs… They took me to a vehicle and drove
me to Elizabeth [Detention Center].”
Refugee from Zimbabwe, detained at New York JFK International Airport; held in immigration detention for 3
months before being granted asylum.

“The following day, they put me in handcuffs and shackled my feet. I asked the…
officer, what did I do wrong, why did they
need to shackle me? He said that was the
rule.”
Refugee from Cameroon, detained at Chicago O’Hare
airport and detained in Illinois and Wisconsin county
jails for 11 months before being granted asylum.

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20—U.S. Detention of Asylum Seekers

Prison Uniforms and “Counts.” At these prison-like
detention centers and immigration jails, officers take away
the clothes worn by asylum seekers and other immigration
detainees, and give them jail-like uniforms to wear. At 16
of the 19 detention facilities surveyed by the Commission,
asylum seekers were required to wear uniforms rather than
their personal clothing.74 A 2003 report by Physicians for
Human Rights and the Bellevue/NYU Center for Survivors
of Torture recommended that detained asylum seekers be
permitted to wear their own clothing as a “simple, yet
important” way for asylum seekers to be “able to identify
themselves as individuals and not as criminals.”75 At these
facilities, officers also conduct numerous detainee
“counts” throughout the day, during which detainees are
required to stand by or sit on their beds while all detainees
are counted—a procedure that can sometimes last an hour
or longer. The Commission’s survey of facilities holding
asylum seekers found that detainees were counted on
average 5 times a day.76 At the El Paso Service Processing
Center, detainees are counted up to 9 times a day,
according to information provided to Human Rights First
staff during a 2006 visit of the facility. At the Elizabeth
Detention Center in New Jersey detainees are counted
eight times a day, including three times while detainees
are usually asleep.77 The Commission’s expert on criminal
prisons—citing to numerous detainee counts as one of the
factors—concluded that the detention facilities used
“correctional models of security, surveillance, and
control.”78 In addition, Human Rights First staff has
consistently observed asylum seekers and other detainees
being referred to and called by guards by their “bed
number” or their “alien registration” number, rather than
by their name.

“They gave me a uniform; they told me it
was the law. A blue shirt and blue pants
and shoes. It’s detention but it’s as if
you’re in prison. By being in uniform, we’re
identified as being the prisoners.”
Refugee from Haiti, granted asylum after 4 months at
the Elizabeth Detention Center in New Jersey.

“We need to change our clothes, and then
they [immigration officers] give us their
uniform. The blue pants and the white Tshirt. We reached the American border and
you cross the border, and my understanding
was that you would be very safe there. Why
was I still being treated in a criminal way?
The immigration officer asked me to take a
shower. I said, I can’t, because I’m very
cold. So I changed my clothes and they
gave us one blanket, and one pillow case,
and one bed sheet, and then they put us in
the cell room.”
Refugee woman from Burma who requested asylum at
the Texas border and was detained at the El Paso Detention Center for more than two years.

“The jail guards told us to take off all of our
clothes, and then take showers. After
showering, I was standing there naked, and
then I was given a prison uniform. The
whole process was surprising to me, and
very embarrassing, but when you’re in jail,
you have to do as you are told.”
Refugee from Somalia who requested asylum at the
border and was detained at the Otay Mesa Detention
Center in San Diego, California, for 4 months before
being granted asylum.

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U.S. Detention of Asylum Seekers—21

Lack of Privacy. In many of the detention centers and
jails, asylum seekers have little or no privacy. Detainees
are often housed in large “pods,” or dormitories, some
holding up to 100 people. At some facilities—like the
Willacy, Pearsall, and Northwest detention centers, and
the Piedmont county jail in Virginia—detainees sleep in
narrow metal triple-bunk beds. (ICE has since stopped
detaining asylum seekers and immigrants at the Piedmont
jail; following the November 2008 death of an immigrant
detainee who was held there, ICE transferred its detainees
from the jail). In some of the facilities, bathroom and toilet
areas are separated from the living, sleeping and eating
area only by a low wall. Toilet and shower stalls often do
not have doors. This is the case at the Willacy and Pearsall
detention centers in Texas, the Northwest Detention Center
in Washington, and the Elizabeth detention center in New
Jersey. At the Northwest Detention Center, some of the
toilets are reported to be located next to the dining area.79

detainees only have access to internal courtyards or
smaller areas that allow fresh air to enter through a cagelike ceiling, yet are enclosed by the facility’s high walls. At
a meeting held at the Elizabeth detention facility in July
2007, a local minister raised a concern about the lack of
real outdoor space at the facility. The facility’s superintendent indicated that the possibility of creating an outdoor
recreation area was being considered. Religious leaders
who visited the facility again in July 2008 reported that
nothing had changed. Now, nearly two years later, the
facility still has no meaningful outdoor space.80 There is
more than enough space to construct a true outdoor
recreation area at the Pearsall facility, which is surrounded
by 35 acres of grass and fields.81 However detainees there
only have access to concrete courtyards off their pods with
a mesh ceiling. On the positive side, Human Rights First
staff were told by ICE officials, during a visit to the facility,
that detainees generally have access to the courtyards
throughout the day.

“I never had the opportunity to go outside.
One hour a day we were allowed to play
volleyball in a room where the ceiling is
open and covered by iron bars but you can
see the sun.”
Refugee from Tibet, who was imprisoned by Chinese
authorities for more than a year, and was detained for
11 months at the Elizabeth Detention Center in New
Jersey before being granted asylum

Many of the facilities lack meaningful outdoor space. This is the
outdoor recreation area at the Hampton Roads Regional Jail in Virginia.

Lack of Meaningful Outdoor Space. Some of the largest
detention facilities do not have meaningful outdoor
recreation space for asylum seekers and other immigrant
detainees. For example at the Elizabeth Detention Center,
the San Diego Detention Center, and the Pearsall
Detention Center, asylum seekers and other immigrant

At other facilities—like the Varick Street Federal Detention
Facility in New York City and the Hampton Roads Regional
Jail in Virginia—asylum seekers and other detained
immigrants only have access to indoor gyms with high
windows as their recreation space. 82 During a visit by
Human Rights First staff to the Hampton Roads jail in
November 2008, the superintendent acknowledged that
the gyms are considered to be outdoor recreation space
by ICE, but then added: “I’m not sure how.” The Detention
Standards only state that “every effort shall be made to

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22—U.S. Detention of Asylum Seekers

place a detainee in a facility that provides outdoor
recreation,” and define “outdoor recreation” as an open-air
space for exercise and other leisure activities.83 They
further provide that someone held at a facility without an
outdoor space may request a transfer after 6 months.
Some facilities do have true outdoor recreation areas. For
example, the Willacy Detention Center has an outdoor
recreation area for each tent, although surrounded by high
fences and barbed wire, and the Broward Transitional
Center also has open grassy courtyards. The T. Don Hutto
Residential Facility—a “family” detention center in Taylor,
Texas—also has a true outdoor recreation area surrounded
by a barbed wire fence, including tables, a soccer field
and two jungle gyms for the children who are detained at
the facility.84
Family Visits Through Partitions. Many of these facilities
do not allow detainees to have contact visits with family or
friends. At the Elizabeth Detention Center in New Jersey—a
facility that exclusively holds non-criminal detainees—
detainees are only allowed to see their family members
and friends through a thick sheet of glass, and can only
speak to them through a phone. The Pearsall Detention
Center, a 1,904-bed facility located in a sparsely
populated area one hour from San Antonio, holds
hundreds of asylum seekers from all over the world on any
given day.85 Family and friends—who are likely to have
traveled a great distance—are only allowed to visit their
loved ones through a glass partition. None of the ICE-run
and contract detention facilities allow for contact visits
with family or friends, with the exception of the Broward
Transitional Center.86 Facilities where contact visits with
family and friends are not allowed include: the Florence
Service Processing Center in Florence, Arizona; the
Hampton Roads Regional Jail in Hanover, Virginia; the
Krome Service Processing Center in Miami, Florida; the
Northwest Detention Center in Tacoma, Washington; the
Varick Street Federal Detention Facility in New York; and
the Willacy Detention Center in Raymondville, Texas.

A Human Rights First Report

Many of the facilities do not allow detainees to have contact visits.
Rather, detainees are only allowed to see their family and friends
through plexi-glass.

Government Commission: PrisonLike Facilities Inappropriate for
Asylum Seekers
In its 2005 study, the bipartisan U.S. Commission on
International Religious Freedom found that most of the
facilities used by ICE to detain asylum seekers are jails or
jail-like facilities that are inappropriate for asylum
seekers.87 The Commission retained an expert on criminal
prisons and conducted extensive site visits and a survey of
detention facilities. Based on the expert’s research, the
Commission concluded that the DHS detention standards—that apply to a range of matters including
telephone access, visitation, the use of physical restraints,
legal orientation presentation access, and outdoor
recreation—are “virtually identical to, and indeed are
based on, correctional standards.”88
The Commission’s study concluded that “the overwhelming
majority of asylum seekers referred for credible fear are
detained—for weeks or months and occasionally years—in
penal or penitentiary-like facilities.”89 The Commission also
found that these detention facilities are “structured and

U.S. Detention of Asylum Seekers—23

operated much like standardized correctional facilities”
and “resemble, in every essential respect, conventional
jails.”90
At these facilities, the Commission found:
„

Widespread use of segregation, isolation, or solitary
confinement for disciplinary reasons;

„

Significant limitations on the privacy, personal
freedom, and individuality afforded to detainees;

„

A scarcity of private, individual toilets and showers for
detainee use outside the presence of others;

„

Use of physical restraints on detainees in 18 of the
19 facilities;

„

Sight and/or sound surveillance in virtually all
housing units, and 24-hour surveillance lighting in all
units;

„

Security related searches of all detainees in the
general living and housing areas;

„

Multiple “counts” throughout the day to monitor
detainees’ whereabouts at all but one of the facilities
visited.

The Commission recommended that asylum seekers be
held in “non-jail-like” facilities, and that DHS create
detention standards tailored to the needs of asylum
seekers and survivors of torture.91 The Commission cited
the Broward Transitional Center in Florida as a model of a
less-restrictive—yet secure—form of detention for those
asylum seekers who cannot be released. In that facility,
asylum seekers can move around and access outdoor
areas more freely, and the visitation policy permits contact
visits with family and friends. According to the Commission, such a model—while still clearly a form of detention—
strikes “a much more appropriate balance between
security concerns and the mental health and emotional
needs of asylum seekers,” and could be replicated in
other locations.92 In its 2007 report on DHS’s progress in

implementing its recommendations, the Commission
pointed out that the Broward facility remained an
exception to the penal model used by ICE, and could be
used as a model, but that the overwhelming majority of
asylum seekers continued to be detained in jail-like
facilities.93 (Though the facility is less jail-like than others,
asylum seekers and immigrant detainees held at the
Broward facility have faced difficulties in securing medical
care and legal representation, as do asylum seekers
detained at other facilities.)94

“While we appreciate the new, performance-based standards of detention
developed by the U.S. Immigration and
Customs Enforcement (ICE) agency, we do
not believe that these standards address
our concerns or recommendations. These
standards, which are not legally binding,
rely on correctional standards, which are
inappropriate to asylum seekers”.
U.S. Commission on International Religious Freedom
letter to DHS, January 2009

In November 2008, nearly four years after USCIRF issued
its February 2005 report, DHS responded to the Commission’s concerns and recommendations by citing to ICE’s
release of the “Performance Based National Detention
Standards” in 2008, which will be fully implemented in
2010. These standards, however, like the previous
detention standards, continue to be based on the penal
model and on standards for correctional institutions. They
do not, for example, limit detention to non-jail-like
facilities, or require that asylum seekers or other detainees
be allowed to wear their own clothes, have real outdoor
access, move about within the facility, and visit with family
and friends face-to-face rather than through a glass
partition.

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24—U.S. Detention of Asylum Seekers

Facilities opened by ICE
Between FY 2005 and FY 2008, ICE has increased the amount of detention beds by 78%.95
Over 6,000 beds were added by ICE in fiscal year 2006 alone. Below are just some of the facilities opened by ICE since it
took over immigration enforcement in March 2003.
„

South Texas Detention Center (Texas, May 2005): 1,020 beds, expanded to 1,904 beds

„

Willacy Detention Center (Texas, July 2006): 2,000 beds, expanded to 3,000 beds in June 200896

„

Stewart Detention Center (Georgia, October 2006): 1,524 beds97

„

T. Don Hutto Family Detention Center (Texas, May 2006): 512 beds98

„

Northwest Detention Center (Washington, April 2004): 1,030 beds99

„

Bristol Detention Center (Massachusetts, April 2007): 128 beds100

„

LaSalle (Jena) Detention Center (Louisiana, November 2007): 1,160 beds101

„

Otero County Processing Center (New Mexico, June 2008): 1,088 beds102

Expected Expansions and Pending Proposals
„

Farmville detention facility (Virginia, to be operated by contractor Immigration Centers of America, expected to open
June 2009): 1,040 beds with potential expansion to 2,500 beds103

„

Los Angeles detention facility (California, ICE solicited offers for facility): 2,200 beds104

„

Mustang Ridge Family Detention (Texas, proposal by city pending): 200 beds105

„

Aurora Contract Detention Facility (Colorado, expansion proposal by GEO contractor pending): 1,100 beds106

„

Maverick County Detention Center (Texas, contract between county and GEO, scheduled to open in late 2008):
650 beds107

„

Washington State detention facility (Washington, ICE solicited contractor bids in December 2008): 1,575 beds108

„

North Georgia Detention Center (Hall County, finalizing intergovernmental service agreement between ICE and CCA):
511 beds109

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U.S. Detention of Asylum Seekers—25

The New Mega-Jails
Instead of decreasing the use of prison-like facilities, DHS
has actually expanded its use of this kind of detention
center in the last few years. In 2003, the largest detention
centers held at most 300 detainees. Since then, ICE has
swiftly opened several mammoth-sized facilities each
holding more than 1,000 detainees and—in the case of
the Willacy Detention Center in Raymondville, Texas—up to
3,000 detainees. Between 2005 and 2008 alone, ICE
increased detention beds by 78 percent.110 Furthermore,
ICE is seeking funding for an additional 1,000 beds during
fiscal year 2010,111 and there are several reports of new
facilities being considered by ICE, including one in rural
Virginia and one in Georgia.112 Human Rights First visited
both the Willacy detention center as well as the South
Texas (Pearsall) Detention Center—and interviewed asylum
seekers held at these and two other mega-facilities.

Pearsall Detention Center—Pearsall, Texas
In June 2005, ICE opened the South Texas Detention
Center in the town of Pearsall, Texas. The facility was built
and is managed by the private contractor GEO Group.
Originally designed to house 1,020 detainees, the facility
was quickly expanded in 2006 to hold 1,904 immigrants
and asylum seekers. The main hallway in the facility—
along which all the pods are located—runs about a quarter
of a mile long, and detainees are housed in “pods” with as
many as 100 beds each.113
The facility holds a wide range of immigration detainees
including asylum seekers. ICE staff at the facility and local
legal providers told Human Rights First that asylum
seekers held at this facility come from a number of
countries including Burma, China, Eritrea, Ethiopia,
Honduras, Iraq, and Somalia. According to data provided
by ICE, approximately 900 asylum seekers who had been
placed in expedited removal were detained at the facility
during the course of fiscal year 2007 alone. ICE did not

provide information about how many additional asylum
seekers were detained at the facility during that year. This
facility is yet another prison-like detention center,
complete with prison uniforms, barbed wire, and daily
detainee counts. Asylum seekers and other detainees are
handcuffed when brought to and from the facility and have
little to no privacy in their cell-like “pods.” Just as in the
other prison-like facilities, the asylum seekers and
immigrant detainees are not provided with contact visits
and must instead visit with family and friends through
glass partitions, speaking through a telephone.

Willacy Detention Center—Raymondville, Texas
In July 2006, ICE opened its largest detention center to
date—the Willacy Detention Center—now with 3,000
beds—in Raymondville, Texas. Human Rights First and a
delegation of pro bono attorneys and representatives of
local faith and community groups visited the facility in May
2008 and met with local ICE officials. The Willacy
Detention Center primarily consists of 10 large tents—
white Kevlar fabric stretched over a frame of large steel
beams. Each tent is separated into four “pods,” each with
only one small window. Each pod holds 50 individuals.
The detention center is run by the Management Training
Corporation (MTC), one of several large private for-profit
corrections companies that contract with ICE to provide
detention space.
In June 2008, ICE and MTC expanded the original 2,000bed facility by adding an adjacent building that can hold
1,000 detainees. Both the “tent” and building areas of the
facility are essentially jails. The detainees wear jail
uniforms, and the facility is surrounded by high barbed
wire fences. In both the tents and in the building,
detainees are held in “pods” with the eating, sleeping, and
toilet area all in one room. The toilet and shower areas are
separated from the eating, sleeping and living areas only
by a low wall. Immigration detainees are not permitted
contact visits and instead communicate with visitors
through a glass partition. There are only three attorney

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26—U.S. Detention of Asylum Seekers

visitation rooms, all of which are non-contact rooms that
resemble tiny closets or confessionals. This not only
makes it difficult for attorneys to build a relationship of
trust with their clients, but it also means that every time a
document needs to be handed between the detainee and
the attorney, the document must first be given to the
guard who then walks it around to the other party.
Attorneys are sometimes allowed to use empty courtrooms
to meet with their clients.114
During its May 2008 visit to the Willacy facility, Human
Rights First was told by ICE officers that the facility is
primarily used to hold immigrant detainees who are
subject to expedited removal. Many asylum seekers who
are placed in expedited removal in the southwest Texas
border area are initially detained at Willacy before being
transferred to another facility, often the Pearsall Detention
Center, for their credible fear interviews.
According to data provided to Human Rights First by ICE,
approximately 550 asylum seekers were detained at
Willacy over the course of 2007. In April and May 2008
alone, over 140 asylum seekers subject to expedited
removal were initially detained at Willacy.115 Asylum
seekers from many countries have been held at the
facility, including some from Burma, China, El Salvador,
Haiti, Nicaragua, and Somalia. ICE officials informed
Human Rights First during the tour of the facility that the
majority of the detainees are in the process of being
deported by ICE, with many being in expedited removal,
and that the average stay for those in expedited removal
was only 18 days. ICE officials also provided data
indicating that the average length of detention for asylum
seekers at Willacy was only 7 days. Asylum seekers are
often transferred to other facilities for their credible fear
interviews and any subsequent asylum hearings. During its
visit of the facility, Human Rights First met with one asylum
seeker who had spent over 4 months at the Willacy
Detention Center.

A Human Rights First Report

Stewart Detention Center—Lumpkin, Georgia
Yet another massive detention center opened its doors in
the fall of 2006. The Stewart Detention Center is a 1,524bed medium security facility, constructed and managed by
the Corrections Corporation of America (CCA)—one of the
largest private correctional corporations—“in response to
demand for prison and detainee beds.”116 The facility holds
only men. It is located in rural Lumpkin, Georgia, and often
holds detainees who have been transferred there from
other parts of the country, especially from the nearby
states of North Carolina, South Carolina, and Tennessee,
but sometimes also from states further away.117 For
example, a number of immigration detainees reported to
Human Rights First that they had been transferred to this
facility for several weeks or months before being returned
to detention in New Jersey, generally for deportation.118 ICE
officers have cited bed space needs for these transfers,
but it may be that detainees are transferred to other
locations because detention space outside of the East
Coast is less expensive.
The detention center is located three hours outside of
Atlanta. There are few legal service providers in the area,
and even fewer that work at the detention center. Because
the roundtrip six-hour drive cannot be done in one day, the
Catholic Charities of Atlanta attorney who conducts the
legal orientation presentations at the facility, must spend
two nights each week in a hotel close to the facility.119

Northwest Detention Center—Tacoma,
Washington
The Northwest Detention Center (NWDC) in Tacoma,
Washington, was opened in April 2004, and is operated
by the private corporation GEO Group. ICE’s original
contract was for 500 beds, but the facility now has the
capacity to hold 1,000 individuals, both men and women.
According to a report issued in July 2008 by OneAmerica
and the Seattle University School of Law International
Human Rights Clinic, a significant number of detainees are

U.S. Detention of Asylum Seekers—27

held for 35-60 days at the facility. One asylum seeker
identified in the report had been detained for more than
four years before being granted asylum by the U.S.
immigration court.120
Like other large immigration detention facilities, detainees
at NWDC are given prison uniforms and are held in pods
that lack any meaningful privacy, with toilets and showers
only separated from the sleeping quarters by low dividers.
Contact visits with family members or friends are not
allowed—instead, detainees can only speak with their
visitors through a heavy glass partition and a phone.121
The detention center is located approximately 45 minutes
from Seattle, where a few immigration legal service
providers are located. The facility was designed with only
four attorney-client meeting rooms, and no modifications
were made when the number of beds was doubled to
1,000. As a result, the OneAmerica and Seattle University
School of Law study reports that pro bono attorneys
experience long wait times when they visit their clients.122

Continued Detention in Jails
“I was crying in jail. I was hungry. I was
surprised to be in jail. I had never committed a crime, and suddenly I was in jail.”
Refugee from Ethiopia who was detained for six
months at the Piedmont jail in Virginia before being
granted asylum by a U.S. immigration court.

In addition to detaining asylum seekers and immigrants in
large immigration detention centers, ICE also contracts
bed-space from more than 500 local jails.123 In fact, in
recent years, ICE has increased its use of local jails.
Between 2002 and 2006, the number of immigration
detainees held in local jails or Federal Bureau of Prisons
facilities increased by 30.7 percent.124 Between 2006 and
2007 alone—as the overall number of immigration

detainees grew—the number of detainees held at local
jails jumped from 45 percent to 65 percent.125 Because
these facilities also house criminal inmates, they function
fully as jails. In some cases, immigration detainees are
housed together with the criminal population. This was the
case at both the Hampton Roads Regional Jail and the
Piedmont County Jail in Virginia when Human Rights First
staff visited both jails in November 2008. Asylum seekers
and other immigration detainees held at these facilities
were largely subject to the same schedule and conditions
as the criminal inmates: they wore jail uniforms, were
subject to regular counts, and had only limited outdoor
recreation time.
Some of these jails, including Hampton Roads and
Piedmont, are in remote or rural areas. These two facilities,
for example, are located three or more hours from the pro
bono legal representation organization—the Washington,
DC based CAIR Coalition—that provides legal orientation
presentations and free representation to asylum seekers.
ICE deportation officers are not stationed at either of these
jails, like they usually are at contract facilities that hold
only immigration detainees. 126 Detainees at both of the
jails Human Rights First visited in Virginia—which included
asylum seekers from Burundi, China, Ethiopia, and
Zimbabwe—reported that they relied on weekly visits by
ICE officers to communicate with the officers and to obtain
information on the status of their cases. Some detainees
expressed frustration at not having more regular contact
with ICE. According to local pro bono attorneys, detainees
express similar concerns at several jails in Illinois and
Minnesota.

More Family Detention Facilities
In 2001, the former INS began detaining immigrant
families in the Berks County Shelter Care Facility in
Pennsylvania, a former nursing home with space for 84
men, women, and children. Concerned about the

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28—U.S. Detention of Asylum Seekers

separation of families, the House Committee on Appropriations stated in a 2005 report that DHS was expected to
“release families or use alternatives to detention…whenever possible,” and directed that when the
detention of family units was determined to be necessary,
the family members should be housed together, to avoid
the separation of parents from young children.127

including no longer requiring children or their parents to
wear prison uniforms, replacing guard uniforms with khakis
and polo shirts, improving privacy and living arrangements,
allowing freedom of movement inside the facility, and
more time for outdoor recreation and education.133 The
settlement agreement, however, is set to expire in August
2009.

In May 2006, ICE opened the T. Don Hutto Residential
Facility in Taylor, Texas, a former prison designated
specifically to detain immigrants, asylum seekers, and
their children.128 This 512-bed facility located outside
Austin, Texas, was originally built as a medium-security
prison, and is operated by the private contractor Corrections Corporation of America (CCA). The facility has
housed asylum seekers from Guatemala, Haiti, Honduras,
Iraq, Nicaragua, Romania, Somalia, and Venezuela—and
their families.129 When the facility first opened, asylum
seekers and other immigrant families were held in cells,
each with a single bed or a bunk bed. Family groups were
not always housed in the same cell. All detainees—
including the children—wore prison-like uniforms. Schoolage children received only one hour of education per day,
and outdoor recreation was limited. 130 In a February 2007
report, the Lutheran Immigration and Refugee Service
(LIRS) and the Women’s Refugee Commission documented these and other problems at the facility. Local
community and faith-based groups also voiced concern
with immigration authorities and the media about the
treatment of families detained at the Hutto facility.131

The Hutto settlement also requires that ICE make
reasonable efforts to reduce the length of detention and
provide written individualized custody determinations after
60 days and every 30 days thereafter. In fact, local legal
providers report that average length of detention for
families detained at Hutto was initially shortened
significantly following the settlement, but has already
begun to increase, with families who are seeking asylum
remaining in detention for two to six months.134

Following initial criticism of the facility, ICE made several
adjustments, including expanding the instruction period for
children from one to four hours a day.132 In March 2007,
the American Civil Liberties Union (ACLU), the University of
Texas School of Law Immigration Clinic, and the law firm of
LeBoeuf, Lamb, Greene & MacRae LLP filed a lawsuit,
alleging that conditions at the facility violated the
minimum standards for the detention of minors in
immigration custody. In an August 2007 settlement of that
lawsuit, DHS agreed to implement a number of changes,

A Human Rights First Report

ICE continues to detain asylum seekers and their children
at the Hutto facility. ICE also continues to detain families
at the smaller Berks County Shelter Care Facility. At this
facility, families have access to true outdoor recreation
and the education provided to children was reported to be
appropriate. At the same time, though, the Women’s
Refugee Commission and Lutheran Immigration and
Refugee Service found that children as young as six were
sometimes separated in different sleeping areas from their
parents.135 The UNHCR Guidelines on Protection and Care
of Refugee Children state that “refugee children should not
be detained,” and that children should not be detained in
prison-like conditions, and that “because detention can be
very harmful to refugee children, it must be ‘used only as a
measure of last resort and for the shortest appropriate
period of time.’”136
In April 2007, a family of Iraqi Christians—
parents and a two year old baby girl—arrived at
the Mexico-California border, approached a U.S.
immigration officer and requested asylum. They
were immediately detained and sent to the
Hutto detention center in Texas. The mother and

U.S. Detention of Asylum Seekers—29

the daughter were separated from the father and
placed in a different dormitory. For much of their
detention, the family was not allowed free movement within the facility. They, like all the other
detainees, had to stay in their small pod for
most of the day, and were forced to line up and
be counted several times each day. The family
was represented pro bono by an attorney from
Catholic Charities of Austin, who requested on
several occasions that the family be released on
parole. The Catholic Charities attorney even
called the ICE Field Office Director to follow up
on her requests, but never received a response.
The family was detained for over 5 months. They
were only released from detention following the
August 2007 settlement.137 The family was
granted asylum by a U.S. immigration judge in
August 2008.
In January 2008, ICE issued a new set of standards
governing the detention of immigrant families. While the
new standards improve access to phones and increase
access to the law library,138 the new standards continue to
be based on adult correctional standards. In a June 2008
statement, the Women’s Refugee Commission pointed out,
for example, that these standards “allow children to be
disciplined based on adult prison protocol, including the
use of restraints…and strip searches.”139
In April 2008, ICE solicited bids for contracts to construct
three additional 200-bed facilities to detain immigrant
families.140 Though the ICE solicitation described the
facilities as “minimal security for juveniles and their
families,”141 ICE’s request also called for the use of penaltype security mechanisms such as fencing and physical
counts.142

Penal Detention Inappropriate
Under International Standards
“While the agency’s detention standards do
not exactly mirror the proposed standards
of the United Nations or the International
standards reflected in the [USCIRF] report,
we are confident that they do meet our
obligation to ensure proper treatment and
conditions of confinement”.
ICE Response to the U.S. Commission on International
Religious Freedom’s Report, January 2009

The United States, as a signatory to the 1967 Protocol
Relating to the Status of Refugees, is bound by Articles 2
through 34 of the 1951 Convention Relating to the Status
of Refugees.143 Article 31 of the 1951 Refugee Convention
exempts refugees from being punished because of their
illegal entry or presence. It also provides that states shall
not unnecessarily restrict the movements of entering
asylum seekers.
The Executive Committee of the United Nations High
Commissioner for Refugees (UNHCR), of which the United
States is a member, has concluded that detention of
asylum seekers "should normally be avoided." The
Executive Committee has also urged that national
legislation and/or administrative practice distinguish
between the situation of asylum seekers and that of other
aliens, and that asylum seekers not be housed with
criminal inmates.144
In February 1999, the UNHCR issued revised Guidelines
on the Detention of Asylum Seekers (the "UNHCR
Guidelines"). The UNHCR Guidelines affirm that "[a]s a
general rule, asylum seekers should not be detained," and
that "the use of detention is, in many instances, contrary
to the norms and principles of international law." The
UNHCR Guidelines also specifically emphasize that “[t]he

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30—U.S. Detention of Asylum Seekers

use of prisons should avoided.” When asylum seekers are
detained, the UNHCR Guidelines recommend “the use of
separate detention facilities to accommodate asylumseekers.” The guidelines also caution that: "Detention of
asylum seekers which is applied as part of a policy to
deter future asylum seekers, or to dissuade those who
have commenced their claims from pursuing them, is
contrary to the norms of refugee law. It should not be used
as a punitive or disciplinary measure for illegal entry or
presence in the country."145

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U.S. Detention of Asylum Seekers—31

Failure to Adopt Safeguards
to Ensure Fairness
“I was so sad, I did not know what is going to happen with my family in Afghanistan, with me here in
the United States and I did not know anything about asylum. The only thing was in my mind to save
my life and my family’s. I thought…[the United States] might welcome me, protect me and give me
freedom, but I was wrong”.
Refugee from Afghanistan who fled from the Taliban, and was detained for 20 months at three different county jails in Illinois
and Wisconsin; he was denied parole on two occasions and only released after he was found eligible for asylum.

Those who seek asylum at our airports and borders are
placed into “mandatory detention” under the “expedited
removal” process. They are only permitted to apply for
asylum if they first pass a “credible fear” screening
interview with a U.S. asylum officer, or a subsequent
review by an immigration judge. Those who “pass” this
interview are technically eligible to request release from
detention on “parole.”146 Unlike other immigrant detainees,
however, these asylum seekers—who are labeled as
“arriving aliens” under our immigration system—are not
given the opportunity to have an immigration court custody
hearing to assess their eligibility for release.147 Rather, the
decision as to their release on parole or their continued
detention rests with ICE—the same authority that is
responsible for their detention.
Since DHS and ICE took over responsibility for immigration
detention in 2003, the flawed asylum detention system
has become more restrictive, leaving asylum seekers
sitting in jails for months or even longer. As detailed
below:

„

The rate of release on parole for asylum seekers
dropped from 86.1 percent to 62.5 percent between
2001 and 2003 and, while ICE has not provided
comprehensive and consistent and timely data for all
subsequent years, the limited information that has
been released indicates that only 16 asylum seekers
were paroled in 2006, and 107 were paroled in an 8
month period in fiscal year 2008.

„

ICE issued a more restrictive parole policy for asylum
seekers in November 2007—a policy that is inconsistent with the recommendations of the bipartisan U.S.
Commission on International Religious Freedom.

„

In interviews with Human Rights First researchers, pro
bono attorneys who work with refugees across the
country reported that in almost all locations their
clients experienced no improvements under the new
ICE policy.

„

In Massachusetts, Texas, and Arizona, some detained
asylum seekers have not been given their credible
fear interviews for several weeks or even months,
delaying their ability to apply for release on parole.

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32—U.S. Detention of Asylum Seekers

„

The U.S. detention system for asylum seekers is out
of step with international refugee protection and human rights standards.

A Flawed Process

As a result of U.S. detention policies and practices,
refugees who seek asylum in this country are jailed for
extended periods of time—even when they meet the
criteria for release on parole. For example, Human Rights
First attorneys have interviewed:

The U.S. immigration detention system lacks the safeguards necessary to ensure that detention is consistent
with this country’s moral commitment to protect the
victims of persecution and its legal commitments under
international refugee and human rights conventions. For
example:

„

„

The initial determination to detain an asylum seeker
at a U.S. airport or border point is a blanket “mandatory” one, not based on an individualized
determination, but rather on whether a person possesses valid documents.148

„

Subsequent decisions to release asylum seekers on
parole are entrusted to ICE, which is the detaining
authority, rather than to an independent authority or
court.149

„

The parole criteria that are specific to asylum seekers
are set forth in an ICE policy directive rather than the
relevant regulations, and allow the continued detention of an asylum seeker even where she or he has
established identity, community ties, and lack of flight
risk or danger to the community.150

„

The system fails to provide for regular review of the
need for continued detention although asylum seekers’ cases may take months or even years to make
their way through the adjudication system.151

„

„

A Baptist Chin woman from Burma who was detained
in an El Paso, Texas, immigration jail for more than
two years. Several parole requests were denied by ICE
even though she had proof of her identity and family
in the U.S. and the U.S. government agreed that she
would be subjected to torture if returned to Burma.
She was finally released on parole from detention
and was subsequently granted asylum.
A human rights advocate who was detained for four
months at the Elizabeth Detention Center in New
Jersey. The advocate fled Guinea after being abducted by government forces on two occasions due to
his involvement with and founding of several human
rights organizations. He was finally released on parole
but only three weeks before a U.S. immigration judge
granted him asylum.
A Liberian Pentecostal pastor who was detained in
the U.S. for three and a half months and denied parole, even though several ministers in the U.S.
confirmed his identity and his religious work in Liberia. In Liberia, he had been targeted by the regime of
Charles Taylor because he had criticized the use of
child soldiers. He was only released from detention
after he was granted asylum.

A Human Rights First Report

ICE acts, in effect, as both judge and jailer with respect to
parole decisions for asylum seekers. If parole is denied by
ICE, the decision cannot be appealed to a judge—even an
immigration judge. While immigration judges can review
ICE custody decisions for other immigration detainees,
they are precluded under regulatory language from
reviewing the detention of so-called “arriving aliens,” a
group that includes asylum seekers who arrive at airports
and other U.S. entry points.152 While asylum seekers have
occasionally tried to file federal court habeas petitions to

U.S. Detention of Asylum Seekers—33

Arbitrary Detention Under International Law
The U.S. detention system for asylum seekers lacks the kinds of
safeguards that prevent detention from being arbitrary within the
meaning of the International Covenant on Civil and Political
Rights (ICCPR). The ICCPR, to which the United States is a party,
provides that: “Anyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings before a court, in
order that the court may decide without delay on the lawfulness
of his detention and order his release if the detention is not
lawful.”153 The U.N. Human Rights Committee, in examining the
detention of a Cambodian asylum seeker in Australia, concluded
that detention should be considered arbitrary “if it is not
necessary in all the circumstances of the case.”154
The UNHCR Executive Committee, of which the United States is a
member, has “[r]ecommended that detention measures taken in
respect of refugees and asylum-seekers should be subject to
judicial or administrative review.”155 The United Nations High
Commissioner for Refugees’s guidelines on the detention of
asylum seekers state that “as a general principle, asylum-seekers
should not be detained.” When a decision to detain is made, the
UNHCR guidelines call for procedural safeguards including
"automatic review before a judicial or administrative body
independent of the detaining authorities." In addition to this
automatic independent review, the decision should be subject to
subsequent "regular periodic reviews of the necessity for the
continuance of detention."156
After a 2007 mission to the United States, the U.N. Special
Rapporteur on the Human Rights of Migrants concluded that the
U.S. detention system lacks safeguards that prevent detention
from being arbitrary within the meaning of the ICCPR and, among
other things, recommended that the Department of Homeland
Security and the Department of Justice “revise regulations to
make clear that asylum-seekers can request [their] custody
determinations from immigration judges.”157

challenge parole denials, these petitions do not serve as
an effective mechanism for asylum seekers to obtain a
timely and independent review of ICE decisions to deny
them parole. Practically speaking, it can take months or

longer before a decision is issued in these cases.158 Some
federal courts have refused to review parole denials for
asylum seekers, in some cases citing a lack of jurisdiction
and in other cases emphasizing that they are obligated to
defer to the judgment of immigration officials as long as a
reason was given for the parole denial.159

Failure to Implement Critical
Reforms
In its 2005 report, the U.S. Commission on International
Religious Freedom found wide variations in asylum parole
rates across the country based on its analysis of DHS
statistics. This statistical analysis showed that while
asylum seekers in some parts of the country were routinely
released, in other parts of the country, asylum seekers
were rarely paroled—with parole rates as low as 0.5
percent in New Orleans, 3.8 percent in New Jersey and 8
percent in New York.160 The Commission also found no
evidence that ICE was applying the parole criteria that
were spelled out in the policy guidelines in effect at the
time: which included establishing identity, community ties
and no security risk. Rather, the Commission concluded
that variations in parole rates were associated with other
factors, including, for instance, the airport or border entry
post at which the asylum seeker had arrived.161
The Commission specifically recommended that DHS
promulgate regulations “to promote more consistent
implementation of existing parole criteria, [and] to ensure
that asylum seekers with credible fear of persecution…are
released from detention.” The Commission also recommended that ICE create “standardized forms and national
review procedures” to ensure that the parole criteria are
applied uniformly.162

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34—U.S. Detention of Asylum Seekers

ICE did not, however, put the parole criteria into regulations. In a February 2007 “report card,” USCIRF gave ICE a
grade of “F” for its failure to codify the parole criteria into
regulations and another “F” for its failure to ensure
consistent and correct parole decisions by developing
standardized forms and national review procedures.163

ICE’s New Asylum Parole Policy
Instead of putting the prior asylum parole criteria into
regulations, ICE rescinded those guidelines in November
2007 and issued new guidance that inserted an additional
level of eligibility requirements for release on parole.164 The
new directive makes it clear that meeting the previous
parole criteria—establishing identity, community ties, and
no security risk—is no longer enough. An asylum seeker
must also establish that:
„

there are medical reasons which warrant release,

„

s/he is a juvenile or a government witness in a legal
proceeding, or that

„

the release would be “in the public interest.”

The prior parole guidance was based on the premise that
parole of an asylum seeker who can establish identity and
community ties, and who is not a threat to the safety of
the community, is generally in the public interest and
should be favored.165 In a December 3, 2007, letter to
Human Rights First concerning the new parole policy,
former ICE Assistant Secretary Julie L. Myers stated that
the “blanket statements,” which she said were contained
in the earlier parole policy, “placed an undue burden on
our agency when denying parole for justifiable reasons,
creating an inflexible adjudicatory process that was
inappropriate to continue after the September 11, 2001,
terrorist attacks.”166 The prior guidance, however, had
clearly authorized release only when the asylum seeker did
not pose a security risk. The new guidance also states that

A Human Rights First Report

asylum seekers are only to be paroled in “limited
circumstances.”167
Not only did ICE shift its overall policy approach towards
parole of asylum seekers, but it also restricted the number
of asylum seekers to whom it applies. Unlike the prior
guidelines, ICE’s new parole guidance does not require
that all asylum seekers be assessed for release to ensure
that those who can and should be released are not
unnecessarily detained. Instead, asylum seekers must
submit a written request for parole before being considered for release.168 This approach disadvantages
individuals who do not speak English or are not represented—and more than a third of asylum seekers in
detention are not represented.169 These individuals are less
likely to learn about the parole process or to be able to
make a formal written application.
The new directive did create an additional requirement
that local offices gather and submit monthly reports on
parole determinations, and that a “thorough and objective
quality assurance review” should be undertaken every six
months. Nevertheless, this new policy guidance—like the
parole policy guidance that preceded it—has not been
placed into regulations. As a result, it leaves local officials
with the ability to disregard it, as they did the prior
guidance.170 Moreover, while the “public interest” category
could be—and has in some cases been—used in an
officer’s discretion to release asylum seekers who do not
fall into any of the other narrow categories, the guidance
fails to provide any meaningful explanation as to who
would qualify for parole under the “public interest”
criteria—leaving the decision up to the discretion of local
officers.
Though ICE framed the new guidance as a response to
USCIRF’s recommendations, in a letter dated December
14, 2007, the Chair of the Commission wrote to then-ICE
Assistant Secretary Julie Myers stating that the new policy
is “inconsistent with the relevant recommendation of the
Commission’s Study.”171 The Commission specifically

U.S. Detention of Asylum Seekers—35

requested that ICE stop citing the Commission’s recommendations as the basis for the new policy. The
Commission reiterated these concerns in a January 2009
letter to Stewart Baker, the then-DHS Assistant Secretary
for Policy.172 In a February 2008 letter, 82 non-profit
organizations and legal experts expressed concern about
the new directive and called for ICE to rescind it.173

Reform More Necessary Than Ever
“[A]liens are only to be paroled in limited
circumstances.”
ICE Directive on Parole of Asylum Seekers
(Nov. 2007)

In the years since DHS took over responsibility for the
detention of asylum seekers, the parole rate for asylum
seekers appears to have dipped sharply. ICE statistics
obtained by USCIRF indicated that the rate of release
dropped 27 percent between fiscal years 2001 and
2003.174 ICE has not provided the Congressionallymandated statistical information for 2005 or 2008. ICE
did provide some statistical information for 2006 in
response to inquiries by Human Rights First and other
organizations and provided data for 2007 immediately
prior to the issuance of this report. The 2006 statistics
however, provided by ICE in February 2008 and again in
February 2009 pursuant to a Freedom of Information Act
request filed by Human Rights First, appear to indicate
that only 16 asylum seekers who were initially detained in
2006 under expedited removal were paroled. This reflects
a further drop in the parole rate down to about 6 percent
(or as low as 0.8 percent if only 16 of all 1,311 arriving
asylum seekers who successfully passed through the
credible fear process were paroled).175 These 2006 ICE
statistics are confusing in palces, and may only reflect the
number of asylum seekers who were detained and
released during the studied period. The 2007 statistics

which were provided to Human Rights First immediately
prior to the issuance of this report, also reflect a low rate
of parole—approximately 4.5 percent of all asylum seekers
detained after a finding of credible fear.176
More recent—though incomplete—statistics provided by ICE
similarly point to a very low parole rate for asylum seekers.
A set of numbers provided by ICE to the U.S. Commission
on International Religious Freedom in November 2008
reflect that ICE paroled only 107 asylum seekers, out of
the 215 written parole requests submitted, in the eight
month period from November 2007 through June 2008—a
period in which ICE newly detained 842 arriving asylum
seekers who were found to have a credible fear of
persecution, over and above the number it continued to
hold in detention from the prior years.177 These limited
statistics point to a parole rate that would be somewhere
below 13 percent. In an April 2008 letter to Human Rights
First, ICE provided a preliminary set of parole statistics to
non-governmental groups that also pointed to a low parole
rate—with only 45 asylum seekers being granted parole in
the period from November 2007 through January 2008. In
presenting these statistics, ICE did not provide complete
information, instead providing the parole rate only as it
relates to the number of applications filed, rather than to
the number of asylum seekers actually in immigration
detention.178
ICE’s interpretation of parole eligibility—both before and
after the new parole guidance was issued—has continued
to be restrictive and uneven in practice according to
information obtained by Human Rights First through
interviews with local legal providers who assist asylum
seekers at the facilities that detain the bulk of asylum
seekers. Pro bono attorneys reported that asylum seekers
continued to be detained in facilities in California, Florida,
Georgia, Illinois, Louisiana, Minnesota, Oregon, Texas and
other states, even when they could be released on
parole—and that asylum seekers they represent are
regularly denied parole from detention.

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36—U.S. Detention of Asylum Seekers

„

Florida: The Florida Immigrant Advocacy Center
(FIAC), which provides free legal services to detainees
at the Krome Detention Center and the Broward Transitional Facility, reported that parole is almost never
granted—both before and after the new parole directive was issued—and that they have represented
detained asylum seekers whose parole requests went
unanswered or denied with little or no explanation.179

„

Illinois, Indiana and Wisconsin: A representative
from the National Immigrant Justice Center reports
that, in her experience, “parole is rarely granted” to
asylum seekers who arrive at Chicago’s airport and
who are then detained in county jails throughout Illinois, Indiana and Wisconsin, though in her
experience individuals from China have more success
with parole.180

„

„

Austin, Texas: The Immigration Clinic at the University
of Texas School of Law, which represents asylum
seekers at the Hutto Detention Center, reported that—
while asylum seekers were being regularly paroled
following the settlement of the lawsuit surrounding
the Hutto Detention Center—many asylum seekers
being granted parole are now made to post a $5,000
bond. Some families cannot afford such a high bond,
and as a consequence continue to be detained for
the duration of their cases. Furthermore, on average it
takes 3-4 weeks to receive a decision on a parole
request, meaning that asylum seekers who have already spent several weeks in detention awaiting a
credible fear interview and decision, spend almost an
additional month in detention awaiting a response to
their parole request.181
Harlingen, Texas: A private attorney who represents
numerous asylum seekers at the Willacy and Port
Isabel Detention Centers in Texas—often on a pro
bono basis—reported that she knows of nobody who
was granted paroled.182

A Human Rights First Report

„

Pearsall, Texas: American Gateways, which provides
free representation for asylum seekers detained at
the Pearsall Detention Center reported that in 2008
they had not had a single parole request granted for
asylum seekers at that facility. They also reported that
asylum seekers who are paroled from other facilities—
such as the Hutto Detention Center in Austin—are
sometimes required to post a bond as high as
$5,000.183

„

Virginia: The CAIR Coalition, which represents asylum
seekers and others detained in county jails in Virginia,
reported that it usually did not receive a response to
any formal parole requests submitted on behalf of its
clients, and that when asylum seekers were released—sometimes months after the parole request
was filed—the attorneys did not always receive notice.184

One pro bono practitioner from Arizona reported that a
local ICE officer, after the issuance of the November 2007
parole guidance, told pro bono attorneys that “Parole is
available for Mother Teresa.”185
Through its interviews with legal providers, Human Rights
First gathered a number of examples of refugees who were
denied or not granted parole in the wake of the new
guidance:
„

An Ethiopian refugee, who had suffered torture and
persecution in his home country because of his Somali ethnic background, was detained at the South
Texas Detention Center after he arrived at the U.S.
border in early January 2008 and requested asylum.
His pro bono attorney requested that he be released
from detention on parole, submitting proof of his
identity, an affidavit of support from the refugee’s
U.S. citizen cousin, and proof that he would have a
place to live if released. But ICE denied his parole
request. The ICE parole denial stated that he “failed
to demonstrate [his] parole would be justified for
urgent humanitarian reasons or would yield a signifi-

U.S. Detention of Asylum Seekers—37

cant public benefit” and that he did not fall into one
of the five categories of asylum seekers eligible for
parole—which includes parole in the public interest.
The man was detained nearly 10 months before being
granted asylum by the immigration court. Only then
was he finally released from detention.186
„

„

A Tibetan monk, who came to the U.S. after suffering
persecution due to his involvement in pro-Tibet demonstrations, was detained in Buffalo, New York and
then transferred to the Port Isabel detention center in
south Texas. His attorney filed a request that he be
released from detention on parole. The request included proof of his identity and information on a
sponsor who was willing to house him. The parole
request was denied by ICE with a brief letter stating
generically that there was no humanitarian interest in
releasing him. The monk remained in detention until
he was found eligible for asylum by the Board of Immigration Appeals. He was released after spending a
year and a few days in detention.187
An asylum seeker from Burma came to the United
States border, requesting protection. She was detained and brought to the Pearsall detention center in
Texas. She began to experience intestinal bleeding
but was only treated with ibuprofen and a topical
cream. Her pro bono attorney requested that she be
released on parole, providing a letter of support from
the woman’s cousin who had already been granted
asylum in the U.S. The pro bono attorney also provided information on his client’s medical problems.
The request was denied by ICE two weeks later. This
Burmese refugee was only released after 7 months in
detention in this Texas jail—when a U.S. immigration
judge granted her request for asylum.188

Delays in Credible Fear Interviews
Leading to Delays in Parole
Asylum seekers who are detained “mandatorily” under
expedited removal can apply for release on parole only
after they have had a “credible fear” screening interview
with a U.S. asylum officer and are subsequently advised
that they have met that “credible fear” standard. On
average, these credible fear interviews occur within 13 or
14 days of when an asylum seeker’s case is referred to the
local asylum office, according to statics provided by U.S.
Citizenship and Immigration Services, the arm of the
Department of Homeland Security that houses the Asylum
Division. The referral to the asylum office may take place
soon after the asylum seeker is initially detained, but
sometimes asylum seekers wait weeks before immigration
enforcement authorities refer them for a screening
interview.
An average wait time of about two weeks—from the date of
referral—obviously implies that some asylum seekers wait
longer for these interviews. In conducting research for this
report, Human Rights First was informed by pro bono
attorneys who assist asylum seekers at six different
detention facilities and jails in Arizona, Massachusetts,
and Texas that they were aware of asylum seekers who
were not given these critical screening interviews for two to
six months after their detention. For example, pro bono
attorneys in Massachusetts reported that they have
observed a six-month delay in credible fear interviews. Pro
bono attorneys in Texas and Arizona, reported that
detained asylum seekers sometimes wait a couple of
months, and sometimes longer, before receiving a credible
fear interview. In February 2009, the Los Angeles asylum
office (which has jurisdiction over Arizona, southern
California, and Hawaii) advised that detained asylum
seekers can expect to wait at least six months before
being scheduled for a credible fear interview, according to
pro bono attorneys who assist asylum seekers in Arizona.
Attorneys in Texas report that asylum seekers detained at

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38—U.S. Detention of Asylum Seekers

the Pearsall facility—which detained about 900 credible
fear asylum seekers in 2007—often wait two to four
months before receiving a screening interview. Pro bono
attorneys working at the Port Isabel, Willacy, and Hutto
detention centers—all in Texas—also reported long
delays.189 These four major Texas detention facilities are all
under the jurisdiction of the Houston asylum office.

subsequently granted asylum. As a result, even those who
are eligible for release on bond may continue to be
detained. According to statistics provided by ICE, the
average bond set by ICE and immigration judges is almost
$6,000, but the figure is significantly higher in some
areas, with bonds averaging about $9,000 in the New York
and New Jersey areas.192

These excessive waiting times for credible fear interviews
delay the ability of an asylum seeker to apply for parole—
and also extend the period of the asylum seeker’s
detention by several weeks or even months.

Refugees often face great difficulty in paying bonds, as
many have lost their homes and livelihoods in their flight
from persecution. Their families too may be stranded in
exile abroad, without income or sometimes living in
refugee camps.

Prohibitively High Bonds
Bond is often required as a condition of release for asylum
seekers and other immigrant detainees. While asylum
seekers who are detained at U.S. airports and borders are
prevented from having immigration court custody hearings
under the current regulations, other asylum seekers and
immigrant detainees—those who are detained within the
United States—can have the immigration courts review
the amount of their bonds in custody hearings. In these
custody hearings, they have an opportunity to present
evidence—such as that they are not a security threat and
that they have community ties—in support of their
release.190 The bond amount is initially set by ICE, and the
immigration judge can review this amount and order that
the asylum seeker be released on a different bond amount
or on his own recognizance.191 In some jurisdictions,
asylum seekers who are eligible for release only on parole
have been required to pay bond as an additional condition
to their release.
In the course of Human Rights First’s interviews with local
legal providers, attorneys in Florida, New Mexico, and
Texas, reported that they had asylum clients for whom
bonds had been set so high—by ICE as well as by the
immigration courts—that their clients could not pay them.
Through our research we learned of a number of cases of
asylum seekers who were not released because they could
not pay bonds set at around $5,000, but who were

A Human Rights First Report

Given the limited data provided by ICE, it is not possible to
definitively assess whether fewer asylum seekers are being
released on bond now, though the limited data that has
been provided suggests that this is likely the case. In fiscal
year 2003, according to an ICE statistical report, 613
asylum seekers who were detained under “expedited
removal” after crossing U.S. borders were released on
bond. By contrast, in fiscal year 2006, only 41 asylum
seekers in this category were reportedly released on bond,
according to ICE statistics (that may or may not be
complete, as discussed in the endnotes).193
An Ethiopian refugee was detained at the Pearsall
Detention Center in Texas after he crossed the
Mexican border in order to seek asylum in the
United States. In Ethiopia, he had been tortured
and detained after he was falsely accused of
taking part in an anti-government protest. Catholic
Charities of Austin took on his asylum case on a
pro bono basis. The refugee had proof of his identity, no criminal history, and his pro bono
attorneys had secured space for him at a local
home for refugees. Though he was eligible for
release on bond, the bond amount set by ICE was
$7,000—too high for him to be able to post. Even
after the immigration judge reduced the bond
amount significantly to $4,000 in a custody hear-

U.S. Detention of Asylum Seekers—39

ing, he still could not afford to pay it. As a result,
he was forced to remain in detention for over five
months, and was released from detention only
after he was granted asylum.194

Lengthy Detention
Asylum seekers are often detained for many months, and
sometimes for a year or more, while their asylum claims
make their way through the adjudication system. Neither
U.S. laws nor regulations set a limit on the length of time
an asylum seeker may be detained while his or her asylum
proceedings are pending.195
ICE is required to provide statistics to Congress regarding
the “average length of detention and the number of
detainees by category of the length of detention.”196 The
statistics that ICE has produced, however, do not provide
complete information about the length of time that asylum
seekers are detained. In particular, due to the manner in
which they are generated, these statistics do not reflect
longer term detentions. Based on these statistics, USCIRF
calculated that approximately a third of arriving asylum
seekers were jailed for 90 days or more.197 ICE statistics
provided to Human Rights First for fiscal year 2006
indicate that at least 1,559 asylum seekers were detained
for over 6 months before being released.198 This statistic
does not, however, include asylum seekers who were still
detained at the time the statistics were compiled, nor the
additional number of asylum seekers who continued to be
detained from prior years. ICE has not yet provided these
statistics for the 2008 fiscal year.

immigration detainees who did not have criminal
convictions had been detained for at least a year as of
January 2009—and a dozen had been held for three years
or more.200 Human rights organizations and news reports
have documented cases of asylum seekers who have been
detained for three, four, and even five years. 201
During the course of its research, Human Rights First
learned of many lengthy detentions. At the Pearsall facility
alone, Human Rights First was told by ICE, following its
delegation’s visit to the facility, that there were 14 asylum
seekers who had been detained for more than a year, and
an additional 23 who had been detained for six months or
longer.202 The average length of detention for Human
Rights First’s latest 40 pro bono refugee clients is about
five to six months. The refugees interviewed by Human
Rights First in the course of our research for this report
were detained for an average of nine months before being
released. We have also met with several asylum seekers
who have been detained for well over a year—including the
Burmese Baptist Chin woman who was detained for more
than two years who is profiled earlier in this chapter. In
addition:
„

A fisherman who was persecuted by the LTTE in Sri
Lanka was detained for 30 months in a New Jersey
immigration jail before being released from detention
and given an electronic monitoring device;203

„

An Afghan refugee who fled Taliban threats was
detained for a year and a half in three county jails in
Illinois and Wisconsin.

A number of studies have documented examples of
lengthy detentions. One study, conducted in 2003,
documented an average length of detention of 10 months
for the 40 asylum seekers whose cases were tracked and
were granted asylum by the end of the study.199 An
Associated Press investigation revealed that 400

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40—U.S. Detention of Asylum Seekers

Detention After Asylum Seekers
Ruled Eligible for Protection
In some instances, asylum seekers have been detained
even after an immigration court rules that they have a fear
of persecution in their home country and are entitled to
relief. Pro bono attorneys in Arizona and Florida have
reported to Human Rights First that, when ICE attorneys
have appealed an immigration judge’s decision to grant
asylum to the Board of Immigration Appeals, in some
instances ICE has continued to detain the asylum seeker
while the appeal is pending—a process which often takes
several months.204 For example:
A Colombian refugee, who had been jailed,
beaten, and tortured for participating in a political
demonstration in Colombia, was detained in a U.S.
immigration jail in Arizona for 14 months, including for over 8 months after an Immigration Judge
had ruled that he was eligible for asylum. The ICE
attorney who had argued against the refugee’s
asylum request appealed the judge’s decision to
the Board of Immigration Appeals. ICE refused to
release the asylum seeker while the appeal was
pending. ICE denied his request for parole, even
though the man had both a U.S. citizen daughter
and a U.S. citizen father. He was finally released
after 8 additional months in detention, over two
weeks after the Board of Immigration Appeals
affirmed the judge’s decision granting him asylum.205
Previously, it was ICE policy to “favor release of aliens who
have been granted protection by an immigration judge”
when the decision was being appealed by the government.206 However, the new parole directive issued by ICE in
November 2007 rescinded prior parole guidelines—
including this guidance.207

A Human Rights First Report

Even when ICE is not appealing an immigration judge’s
ruling, some refugees and other immigrants who have
been found eligible for other forms of protection have been
detained for several additional months. For example, some
individuals who were granted relief under the Convention
Against Torture—because they had shown that they were
more likely than not to be victims of torture if returned to
their home countries—were detained by ICE for an
additional 90 days even after the judge granted them
relief. Attorneys in Arizona, Florida, Illinois, Michigan, and
Minnesota report that this is “often” the case in their
areas. In Arizona and Florida, individuals who were
determined by the U.S. to be “refugees” and were granted
“withholding of removal”—and who therefore cannot be
returned to the country in which they fear persecution—
have also sometimes been detained for up to an
additional 90 days.208
Pro bono attorneys in Arizona and Florida report that local
ICE officials have advised them that these individuals are
being detained during this time under a regulation that
allows ICE to identify a “third country” for possible
deportation—a country other than the individual’s country
of origin that would be willing to accept the individual.209
Attorneys reported that they had no indication from ICE
that it was actively searching out realistic alternatives for
deportation in these cases.

Statistics on Detention and Parole
of Asylum Seekers
In 1999, Congress passed a law requiring U.S. immigration authorities to provide statistics on the detention and
parole of asylum seekers to Congress on an annual basis,
and to the public whenever requested.210 Under this law,
annual reports must be submitted to Congress containing
information on the number of asylum seekers detained,
the detention facilities where they are held, the average

U.S. Detention of Asylum Seekers—41

length of detention, and the rate of release for each
immigration district.
ICE has not provided to Congress these Congressionallymandated reports on the detention of asylum seekers for
fiscal year 2005. ICE has also not yet released statistics
for fiscal year 2008, which ended on September 30,
2008. Moreover, the figures that ICE has provided for
2006 may be inaccurate (or at least unclear) in part as
they appear to indicate in one place (though not in
another) that only 257 “credible fear” asylum seekers—
rather than over 3,300—were detained during the year.211
Not only should these statistics be provided on a more
timely basis, but their accuracy also needs to be
improved. For example, these statistics end up understating the average length of detention for asylum seekers
since the averages presented do not include (1) longer
term detentions of asylum seekers who are still detained
at the time the statistics are generated, or (2) longer term
detention of asylum seekers detained in previous years
who continue to remain in detention. ICE also does not
appear to have any way of knowing the exact number of
asylum seekers who are detained at any one point in
time.212

Human Rights First has made two requests to ICE under
the Freedom of Information Act to obtain statistics and
other information on the detention of asylum seekers in
recent years. The first FOIA request, filed in June 2006,
was initially denied. ICE reversed its decision in November
2008 following an appeal filed by Human Rights First in
January 2008, but has yet to produce any data on the
detention of asylum seekers in fiscal years 2005, and
provided statistics for 2007 to Human Rights First
immediately prior to the release of this report. A second
FOIA request—for more recent statistics on the detention of
asylum seekers as well as for information on the consideration of the availability of legal, medical, and other
resources prior to opening new detention facilities—was
filed in the summer of 2008 and Human Rights First was
still awaiting the production of documents in April 2009.

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42—U.S. Detention of Asylum Seekers

The Impact of Detention
“Sometimes I just cried, cried, cried…I cried because I had no family, nobody to take care of me, I
didn’t know how to get a lawyer.
Refugee from Liberia who spent 5 months in U.S. immigration detention before being granted asylum.

“A [detention facility] officer took me to processing. They asked me about my medical situation. They
gave me a uniform. You’re always worried because you’re going to be held in detention, you don’t know
how long you will be there, don’t know what will happen to you next, you have lost connection with your
family. It adds on to the stress—you’ve had bad experiences being imprisoned before. In detention
you’re treated like illegal human beings.
Guinean human rights defender who had been jailed by Guinean security forces due to his human rights work, and was detained at the Elizabeth Detention Center in New Jersey for four months.

Detention negatively affects the mental health of asylum
seekers, and their poor psychological health deteriorates
further the longer they remain in detention. Detention also
undermines the ability of refugees to win asylum—by
making it more difficult for them to obtain legal representation and limiting their ability to gather information in
support of their asylum requests. Some refugees may even
decide to abandon their requests for asylum in the United
States, because they cannot bear to be detained any
longer in a U.S. immigration jail.

A Human Rights First Report

Increased Trauma and Depression
“Anyone can understand the pain I was
going through in jail. I had left my family
far away, had asked for asylum, and then I
was put in jail. Sometimes I felt like just
breaking down and crying, but I did my best
to stay strong.”
Refugee from Somalia detained at the Otay Mesa detention center in San Diego, California for four months
before being granted asylum by the immigration
judge.

U.S. Detention of Asylum Seekers—43

In reports and assessments released over the last six
years, medical and mental health experts have documented the harmful impact of detention on the physical
and mental health of asylum seekers. Physicians for
Human Rights (PHR) and the Bellevue/NYU Program for
Survivors of Torture issued a comprehensive report in June
2003 that concluded that the detention of asylum seekers
inflicts further harm on what is an already traumatized
population.213 The 70 participants in the study were asylum
seekers confined in detention facilities and jails in New
Jersey, New York, and Pennsylvania, with the majority of
detained asylum seekers who were interviewed coming
from countries in Africa.214 The average length of detention
at the time of the interviews was 5 months, with a range
that stretched from 1 month to 5 years.215 The study found
that detained asylum seekers suffer extremely high levels
of anxiety, depression, and Post Traumatic Stress Disorder
(“PTSD”). Specifically, it found that of those interviewed:
„

86% suffered significant depression;

„

77% suffered from anxiety; and

„

50% suffered from PTSD.216

Moreover, the study found that the already poor psychological health of asylum seekers worsened the longer they
remained in custody. In fact, uncertainty about the length
of detention was itself a significant cause of anxiety and
mental distress.217 Given the impact of detention, the
PHR/Bellevue report recommended that asylum seekers
who are not a flight or security risk be released on parole.
The report also recommended that asylum seekers who
are not eligible for unconditional parole be released from
detention and placed into alternatives to detention
programs. The medical experts specifically recommended
that asylum seekers not be shackled, be permitted to wear
personal clothing, be allowed more liberal visitation by
friends, family and others, and be provided with adequate
medical and mental health services.218

Numerous other studies have also confirmed that
detention has a negative and sometimes lasting impact on
the mental health of asylum seekers.219 For example, a
2006 study on the effects of detention on asylum seekers
in Australia concluded that “prolonged detention exerts a
long-term impact on the psychological well-being of
refugees.” The study also documented that the negative
mental health effects of detention on asylum seekers
“persist for a prolonged period after detention.” 220

The psychological health of detained asylum seekers worsens the
longer they remain in detention.

Two years after the release of the PHR/Bellevue report, the
U.S. Commission on International Religious Freedom
concluded that detention in prison-like facilities was not
appropriate for asylum seekers. The Commission’s expert
on detention conditions reported that “the painful and
traumatic aspects of detention…will represent a form of
‘re-traumatization’” for asylum seekers—who have often
been victims of trauma, including torture, imprisonment
and other kinds of abuse.221

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44—U.S. Detention of Asylum Seekers

Impact on Ability to Win Asylum

materials and country condition reports that are essential
to the preparation of their cases.228

The U.S. government does not provide funding for legal
representation of asylum seekers and other immigrants.222
For those who cannot afford to pay for counsel, the
availability of free legal assistance is limited. The need for
representation far exceeds the limited resources of nonprofit legal organizations. In fact, in fiscal year 2008, more
than a third of detained asylum seekers were not
represented at their asylum hearing, and in some locations
the rate of unrepresented detained asylum seekers is 60
percent or more.223 (U.S. immigration courts granted about
45 percent of asylum requests in fiscal year 2008).
Studies on representation of asylum seekers have
consistently found that representation is the single most
important factor in whether the individual will be granted
asylum. A 2007 study found that represented asylum
seekers were almost three times as likely to be granted
asylum as those without legal representation.224 Detention,
however, restricts an asylum seeker’s ability to obtain legal
representation. Detained asylum seekers are much less
likely to secure legal representation according to U.S.
government statistics. More than a third of detained
asylum seekers remain unrepresented, but more than 80
percent of non-detained asylum seekers have representation.225 The Vera Institute for Justice, in a May 2008 report,
also found that asylum seekers who received legal
orientation presentations while in detention were much
more likely to be represented if they were released from
detention.226

Access to a phone is crucial in obtaining an attorney,
particularly for those detainees who do not receive legal
orientation presentations or regular visitors. And for those
who do have counsel, phone access is essential for
communicating with counsel and assisting the attorney in
preparing the case. According to the ICE Detention
Standards, all facilities “shall enable all detainees to make
calls to the [EOIR]-provided list of free legal service
providers and consulates at no charge to the detainee or
the receiving party.”229 At many of its facilities, ICE
contracts with a private company to provide a pro bono
telephone system to allow detainees to contact consulates
and pro bono organizations free of charge. Despite this
arrangement, a July 2007 report by the Government
Accountability Office (GAO) found “systematic problems”
with the pro bono telephone system at 16 of the 17
detention centers it inspected. The GAO also concluded
that the system was “cumbersome and complicated to
use.” 230

Detained asylum seekers also face greater hurdles in
preparing and presenting their cases. Seeking asylum is
an intricate process. An asylum seeker’s ability to play an
active role in his or her case—by gathering evidence,
contacting potential witnesses, or conducting legal
research if not represented—is severely undermined by
detention.227 In addition, detained asylum seekers often
have little or no meaningful access to up-to-date legal

A Human Rights First Report

During a tour of the South Texas Detention Center
organized by Human Rights First, an attorney who worked
for a local pro bono organization attempted to place a call
to her office. She was required to go through multiple
steps before being able to place the call, and was only
able to get through to her office with the assistance of one
of the facility’s staff. The data reviewed by the GAO for its
report found that, over a five year period, 41 percent of
calls placed through the system were not successful.231 In
addition, the telephones are routinely located in large
“pod” areas that may hold dozens of other detainees, so
that no meaningful degree of privacy is available to make
confidential calls to legal counsel or potential witnesses.232
Asylum seekers and other immigrant detainees have
reported to Human Rights First that the charges for calls
are extremely high—an expense that can hinder a
detainee’s ability to keep in regular contact with his or her

U.S. Detention of Asylum Seekers—45

attorney and family members. The GAO report found that
the charges for international calls ranged between $0.65
and $0.95 per minute at ICE-run and contract facilities,
and could be much higher at local jails.233 In response to
similar complaints and in an effort to provide a more costeffective alternative, the Piedmont Regional Jail in Virginia
installed regular payphones in the cells holding immigration detainees.

Driven to Abandon Protection
Because detention can be particularly difficult for victims
of persecution and torture, some asylum seekers may
decide to withdraw their applications and return to their
home country—even though they would face grave danger
there—rather than face the prospect of months of
additional detention in the United States as their cases
make their way through the system. Others give up efforts
to block their deportation while their cases are on appeal.
The U.S. Commission on International Religious Freedom’s
study documented a number of instances in which asylum
seekers cited harsh detention conditions as a factor in the
decision to abandon their asylum claims. The study
concluded that some asylum seekers who may very well
be eligible for asylum “could be deterred from continuing
to pursue their claims because they are forced to remain
in detention throughout the course of the asylum process.”
For arriving asylum seekers in particular, many expressed
surprise at being handcuffed, imprisoned and treated like
criminals when they came to the United States to flee
persecution and seek protection. 234
Through its interviews with asylum seekers and their
attorneys, as well as through its own pro bono representation work, Human Rights First has learned of cases of
asylum seekers who decided to abandon their cases or
stop fighting their deportation rather than spend more time
detained in U.S. immigration jails. For example:

A young woman from Brazil escaped brutal domestic violence, and was detained in Florida upon
arrival in the United States. Her pro bono attorney
filed two parole applications with ICE requesting
that her client be released from detention: one in
February and a second one in April 2008. The
attorney provided proof that a local women’s
shelter was willing to sponsor the young woman.
The request was also accompanied by a five page
affidavit from a mental health professional detailing the hardships the young woman had suffered
and the difficulties she was encountering in coping
with her detention. The first request remained
unanswered, and the second request was denied
by ICE. The denial stated that the young woman
had failed to show that she fell in one of the described parole categories—serious medical
condition, pregnant women, juveniles, government
witnesses, or parole being in the public interest.
The young woman’s asylum claim was not successful before the immigration judge. Though her
attorney believed her client’s chances of winning
on appeal were strong, the asylum seeker could
not cope with any additional time in detention and
chose to forego the appeal and let ICE return her
to Brazil despite her fears of harm there.235
A nineteen-year-old woman from Colombia was
abducted twice by members of the Revolutionary
Armed Forces of Colombia (FARC)—a leftist guerilla insurgent group—as a result of her association
with military officers and policemen. After a third
kidnapping in 2006, the young woman fled Colombia and flew to the U.S. in search of refuge.
She arrived at Newark Liberty International airport,
where she was arrested and detained in New
Jersey. Though the immigration judge found her
testimony credible, the judge concluded that she
had failed to establish that the reason for her
persecution fell within the definition of a refugee. A

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46—U.S. Detention of Asylum Seekers

highly trained psychiatrist who interviewed her
concluded that she suffered from anxiety and
depression, and that the condition was aggravated
by her detention. A request for her release on
parole, filed in January 2007 by her pro bono
attorneys, never received a response from ICE. In
January 2008—after 17 and a half months in
detention—the young woman decided that she
could no longer cope with the stress of detention,
and decided to accept deportation. After her
deportation, the Court of Appeals issued a decision finding that the young woman had a wellfounded fear of future persecution. The court
noted that the refugee had “averred that despite
the fact that her ‘fear of persecution is as strong
as ever[,]’ the detention was, in her words, ‘affecting me physically and destroying me mentally’ and
suggested that her detention in the United States
served as a daily and unwelcome reminder of the
indignity of detention at the hands of the FARC.”236

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U.S. Detention of Asylum Seekers—47

Cost of Detention

While detention averages $95 per day, alternatives to detention range
from $10 to $14 a day; and release through parole has no financial cost
each day.

Since 2005, ICE has increased the number of “beds” it
uses to detain immigrants by 78 percent.237 In the past
four years, Congress has doubled the annual budget for
ICE detention and removal operations to a current budget
of $2.4 billion. Nearly 70 percent—or $1.7 billion—is
devoted to “custody operations.”238 In fiscal year 2007
alone, ICE detained over 310,000 asylum seekers and
immigrants,239 and in fiscal year 2009, ICE planned to
detain over 440,000.240
ICE does not provide detailed information about the
specific costs of detaining asylum seekers. However, as
detailed below, Human Rights First has calculated some of
the costs of detaining asylum seekers using various
government statistics. For example, as detailed below, ICE
has spent:

„

More than $300 million to detain asylum seekers
from March 2003—when ICE assumed immigration
responsibilities—to February 2009.

„

About $5.7 million to detain 900 asylum seekers at a
Texas detention facility during 2007, and over $1
million to detain the last 40 refugees represented by
Human Rights First at a detention center in New Jersey.

„

About $20,000 to detain a Tibetan refugee for 8
months in a California jail, and $25,000 to detain a
Somali woman for over 5 months. They were both
subsequently granted asylum.

While ICE pays $95 a day on average to detain an asylum
seeker or other immigration detainee, supervised release
programs and other alternatives to detention cost much
less—$10 to $14 a day. Release on parole incurs no
additional cost.

Cost of Detaining Asylum Seekers
Based on various reports and statistics that have been
provided by ICE and by U.S. Citizenship and Immigration
Services, Human Rights First has calculated that ICE has
spent somewhere over $300 million to detain over
48,000 asylum seekers from March 2003 to February
2009.241 The costs are actually likely higher since this
number does not include all categories of asylum seekers
detained in 2005 and from October 2007 through early
2009 (ICE has not provided reports for these periods yet).
Moreover, this number is based on ICE statistics concerning average detention lengths which do not reflect longer

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48—U.S. Detention of Asylum Seekers

term detentions, as they only track asylum seekers who
have been released from detention and not those who
were still detained when the statistics were generated.242 In
fiscal year 2004 alone, ICE reported that it detained
11,909 asylum seekers for an average detention period of
nearly two and a half months—though the average length
of detention was likely greater, again because average did
not include long term detentions. The cost of detaining
these asylum seekers, Human Rights First has calculated,
was about $68.1 million.243 This cost may also be higher,
as the average detention period did not reflect longer term
detentions.
According to information provided to Human Rights First by
ICE, approximately 900 asylum seekers, detained under
the expedited removal and credible fear process, were
detained at the Pearsall detention facility in Texas during
2007, each for an average of 75 days. At an average cost
of detention of $84.51 per day at the facility, Human
Rights First has calculated that the detention of these
asylum seekers cost $5.7 million.
The cost of detention varies by facility. The Elizabeth
Detention Center in New Jersey, for example has a daily
detention cost of $161.42.244 The average length of
detention for Human Rights First’s last 40 refugee clients
detained at the facility—who were found to be refugees
deserving of protection by U.S. immigration authorities—
was between 5 and 6 months. The average cost of
detaining these refugees was therefore about $25,000 to
$29,000 each, for a total of more than $1 million.
The following chart highlights the cost of detaining asylum
seekers at select detention facilities:

A Human Rights First Report

Detention
Facility

Cost per
day

Asylum
seekers
detained in
FY 2006* 245

Estimated cost of
detention (based on
average length of
detention of 71.5
days, as last reported
by ICE in 2004)246

Suffolk County
(Mass.)

$90247

84

$540,540

San Diego
Correctional
Facility (Cal.)

$89.50248

369

$2,361,323.25

Piedmont
Regional Jail
(Va.)

$46.25249

45

$148,809.38

South Texas
(Pearsall)
Detention
Center (Tex.)

$84.51250

501

$3,027,274.97

Elizabeth
Detention
Center (New J.)

$161.42251 285

$3,289,226.05

Yuba County
Jail (Cal.)

$71.58252

186

$951,942.42

1,470

$10,319,116.07

TOTAL

* Does not include asylum seekers detained in previous years and in
continued detention during FY 2006. Furthermore, this statistical report
provided by ICE may under-report the number of detained arriving asylum
seekers.

In addition, Human Rights First has also calculated
(below) the cost of detaining some of the individual
refugees we have represented or interviewed. We’ve also
estimated the cost savings to ICE if these individuals had
been released on parole after two weeks, or to an
“alternatives to detention” program. For example:

U.S. Detention of Asylum Seekers—49

„

The detention of an Iraqi Christian refugee, who was
detained at the Otay Mesa facility in San Diego for 4
and a half months, cost ICE at least $89.50 per
night, for a total detention cost of more than
$12,000. If instead he had been released on parole
after two weeks in detention, the cost would have
been closer to $1,250, and if he had been released
to an alternatives to detention program, the costs
would have been only about $2,000—$10,000 less
than detention.253

„

The detention of a Burmese Baptist Chin woman,
who spent more than two years detained at the El
Paso Service Processing Center (an ICE-managed
detention center, with the average daily cost of detention at ICE-run facilities at $119.28254) cost more
than $90,000. If instead, she had been released on
parole after two weeks in detention, the cost would
have been closer to $1,670, and if she had been
released to an alternatives to detention program, the
costs would have been closer to $7,630 to
$10,680.255

„

„

The detention of a Tibetan refugee for 8 months at the
Santa Ana jail in California cost $19,680 at $82 per
night.256 If instead he had been released on parole
after two weeks in detention, the cost would have
been closer to $1,148, and if he had been released
to an alternatives to detention program, the costs
would have been closer to $2,400 to $3,360.257
The detention of a woman from Somalia who was
detained at the Elizabeth Detention Center in New
Jersey for more than 5 months until she was granted
asylum, cost $161.42 per night for a total of
$25,827.20. If instead, she had been released on
parole after two weeks in detention, the cost would
have been closer to $2,260, and if she had been
released to an alternatives to detention program, the
costs would have been closer to $1,600 to
$2,240.258

„

The detention of a Burmese refugee at the Pearsall
Detention Center, who was detained for 7 months,
cost more than $17,700 at $84.51 per night. If instead, she had been released on parole after two
weeks in detention, the cost would have been closer
to $1,180, and if she had been released to an alternatives to detention program, the costs would have
been closer to $2,100 to $2,940.259

Cost Savings Through Release on
Parole or Alternatives to Detention
While detention costs $95 a day, alternatives to detention
cost between $10 and $14 per day depending on the
program and its location according to ICE statistics.260 The
release of an asylum seeker on parole or on a bond, when
appropriate (i.e., when they satisfy the criteria for release),
has essentially no daily financial cost to ICE. If an asylum
seeker were released on parole after an initial detention
period of two weeks, the costs of detention could be
significantly reduced from several thousand dollars and
sometimes tens of thousands of dollars to about
$1,330.261
Where some additional supervision is determined to be
necessary, an individual may be able to be released to an
“alternatives to detention” program (see chapter “Alternatives to Detention or Alternatives to Release?” below).
These kinds of programs include various kinds of
monitoring mechanisms, such as telephone reporting, inperson check-ins, curfews and—in their most restrictive
form—an electronic monitoring device (often called an
“ankle bracelet.”) While the average cost of detaining an
asylum seeker for three months is $8,730, the cost to ICE
if the asylum seeker is instead released into an alternatives to detention program for the same time period is only
$900 to $1,260. And even if the case were to take twice
as long once the asylum seeker is released into an

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alternatives to detention program, the cost savings would
still be substantial at more than $6,000.262 The Vera
Institute of Justice concluded that the cost of supervising
release was 55 per cent less than the cost of detention.263

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U.S. Detention of Asylum Seekers—51

Medical and Mental Health Care
Deficiencies
“Immediately my body started shaking. I felt so cold that I thought I was freezing to death, but at
the same time I was sweating…Within minutes I had a seizure and my body began to shake so
violently that I fell off the bed onto the floor…At the hospital, I had my stomach pumped so that I
would throw up the medication that was inside me…I was then taken back to the detention center.
The next day I was still feeling sick. I was vomiting continuously. I lost control of myself and
fainted…They gave me an I.V. and I started bleeding from my mouth and my private parts…
The examining doctor came and informed me that the test results showed damage to my liver…
It took about a month for me to feel better.”
Testimony before the House Subcommittee on Homeland Security of a refugee woman from Ethiopia who was detained for
five months at the San Pedro Processing Center in California, and was mistakenly given medication by a nurse—without the
use of an interpreter—that had not been prescribed to her (June 2008).

Over the last year, a number of U.S. government assessments, media reports and other studies have identified
serious deficiencies in the health care provided to asylum
seekers and immigrants who are held in detention centers
and jails across the country.264 These reports have
documented a range of problems, including:
„

Severe staffing shortages, with over 140 medical staff
openings and an 18 percent vacancy rate for medical
staff as of June 2008;265

„

Failures to use interpreters to communicate with
detainees during medical exams, in some cases leading to dangerous misdiagnoses;266

„

90 deaths of detainees since ICE’s inception in
2003, including 13 suicides;267

In addition, these reports have detailed failures by medical
staff to administer mandatory physical exams that are
required to take place within 24 hours of detention, as
well as initial medical screenings.268 The reports have also
documented examples of significant delays and backlogs
in responding to detainee requests for medical attention.269

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Medical Staffing Shortages at
Detention Facilities
“Documents tell us that employees widely
complained of severe staffing shortages of
medical personnel. ICE tells us they are
addressing these shortages now, but the
documents indicate they ignored these
warnings for years, failing to adequately
address these shortages even as they
ramped up enforcement and brought
detention beds on line.”
Zoe Lofgren, Chairwoman of Subcommittee on Immigration, Citizenship, Refugees, Border Security, and
International Law, Hearing on Problems with Immigration Detainee Medical Care, June 4, 2008

The capacity to provide medical care to detainees has not
kept up with the steep rise in the number of detention
beds, which have increased by 78 percent since fiscal
year 2005.270 The Division of Immigration Health Services
(DIHS), which provides medical care at all facilities
operated by ICE or private contractors, has experienced
severe staffing shortages. Though DHS officials testified
before Congress in June 2008 that they were actively
working to reduce the number of unfilled positions, the
vacancy rate at the time of the hearing was still at 18
percent.271
Staffing shortages have been exacerbated by ICE’s
decision to detain asylum seekers and other immigrants at
facilities that are not located in areas that would have a
pool of medical professionals available. During Human
Rights First’s visit to the South Texas Detention Center in
May 2008, the medical staff was unable to tell us how
many vacancies they had, but we were informed that the
DIHS was trying to fill positions for a physician, a
physician’s assistant, a nurse practitioner, a dentist, and
several nurses. The facility is located in the town of

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Pearsall (population 7,157), 135 miles from Austin and
57 miles from San Antonio. DHS’s Office of Inspector
General reported that at the time of its visit in October
2007, Pearsall had 22 medical staff vacancies, and that
“[g]iven its rural location and the nation’s high demand for
nurses, staff in Pearsall said that they will endure medical
staff shortages indefinitely.”272 As preparations were under
way to open the new 1,162-bed detention facility in Jena,
Louisiana, the then-interim director of DIHS wrote to ICE
expressing his concerns that DIHS was “facing critical
staffing shortages at most every other DIHS site” and they
had “been unable to meet the demand.”273 The Jena
facility, opened in November 2007, is located 140 miles
from Baton Rouge, and 228 miles from New Orleans. ICE
has continued to detain asylum seekers and other
immigrants at the Pearsall and Jena facilities despite these
concerns.
At the June 4, 2008, Congressional hearing, then-ICE
Assistant Secretary Julie Myers admitted that there were
concerns with regard to staffing shortages and testified
that ICE had “reduced the staffing issues from 30 percent
vacancies down to 18.”274 A Human Rights First review of
job postings on DIHS’s website confirmed that the agency
was still hiring to fill 137 medical positions as of the end
of March 2009, including 12 at the Pearsall detention
center and 7 at the Jena detention center—including a
clinical director and staff physician at each of the
facilities.275

U.S. Detention of Asylum Seekers—53

Lack of Interpretation
“I didn’t have an interpreter when they took
me to the medical clinic. My English is not
too correct, but I tried to explain that my
stomach is hurting. I took my hand and put
it on my stomach, and they gave me medicine.”
Refugee woman from Liberia, who was detained for
five months in New Jersey

Asylum seekers in U.S. immigration jails come from a wide
range of countries and speak languages that include
Amharic, Burmese, Creole, French, Fulani, Mandingo,
Pushtu, Russian, Somali, Spanish, and Tibetan. The ICE
Detention Standards state that if “language difficulties
prevent the health care provider/officer from sufficiently
communicating with the detainee for purposes of
completing the medical screening, the officer shall obtain
translation assistance” (emphasis added).276 Of the asylum
seekers Human Rights First interviewed for this report,
several reported that medical staff did not obtain an
interpreter when providing medical care. In a 2003 report,
Physicians for Human Rights and the NYU/Bellevue Center
for Survivors of Torture reported that 37 percent of the
asylum seekers they interviewed had not been provided an
interpreter or had a lot of difficulty securing one for the
purposes of obtaining medical care.277
ICE has no system in place to track when an interpreter is
used for purposes of providing medical care. At some
facilities, medical personnel will sometimes rely on ICE
officers or the facility’s guards for interpretation.278 Though
all medical personnel—at ICE facilities, contract facilities,
and local jails—have access to a telephonic interpretation
system, there is no system in place to ensure that asylum
seekers are notified of their right to an interpreter and
receive one when needed.

A refugee from Somalia, Amina, was detained at a
New Jersey detention center after arriving in the
U.S. and requesting protection. Anxious and exhausted, she fainted shortly after being brought to
the immigration jail. A doctor employed by the
Division of Immigration Health Services examined
Amina and misdiagnosed her as being psychotic.
The doctor prescribed a strong anti-psychotic
drug. The medical staff failed to use an interpreter
to communicate with Amina, and Amina did not at
first understand what medication she had been
prescribed. She also did not have access to her
medical records.
Amina secured pro bono counsel through Human
Rights First’s asylum representation program. Two
outside doctors, retained by Amina’s pro bono
attorney, described the effect that these drugs
had on her: “The drug…caused her to experience
devastating and life-threatening side effects. [She]
began to shake uncontrollably…She vomited
regularly…She became dizzy, disoriented and
confused. She had difficulty walking, and sometimes fell off her chair.”279 Reflecting on her
experience, Amina said: “The medicine made me
sick. I feel dizzy all the time. I’m confused.”280 The
attorney repeatedly contacted medical officers at
the facility to express concerns about the medical
treatment her client was receiving. The attorney
even offered on repeated occasions to make an
interpreter available during Amina’s medical visits—at no cost to DIHS or ICE. DIHS continued to
examine Amina and provide her with medication
without the help of an interpreter. At the advice of
the doctor retained by her pro bono attorney—who
determined that Amina did not suffer from a psychotic illness—Amina stopped taking the
medication.

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While in detention, Amina also experienced severe
abdominal pain. Her attorney wrote letters to medical staff
and called both ICE and medical staff repeatedly. Weeks
of constant advocacy went by before Amina received
meaningful medical attention. She was only brought to the
hospital the day after her pro bono attorney threatened to
file a habeas petition in federal court.281

Detainee Deaths
ICE took over responsibility for immigration detention six
years ago in March 2003. During this time, 90 immigrant
detainees have died while in immigration custody,282
including at least 10 in fiscal year 2008 alone.283 ICE
officials initially stated that the mortality rate for immigration detainees had fallen over the years, and have argued
that the number of detainee deaths is low when compared
to the death rate among criminal prisoners.284 A physician
from the Bellevue/New York University Program for
Survivors of Torture testified in June 2008 before the
House Judiciary Subcommittee on Immigration that—taking
into account the length of detention of immigration
detainees—the mortality of immigrants in detention
actually increased by 29 percent between fiscal years
2006 and 2007.285 He also noted that comparisons
between the ICE detainee population and the general
criminal prison population are inadequate, since criminal
prisoners are typically held for longer periods of time on
average and have different risk factors. A Government
Accountability Office report, published in February 2009,
concluded that ICE’s mortality rate cannot be directly
compared to that of other prisoners “due to differences in
the agencies’ health care goals, scopes of service, and
population demographics.”286

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More than a dozen of the documented deaths since 2003
have been suicides. At a June 2008 oversight hearing, the
then-Assistant Secretary of ICE, Julie Myers, testified that
there had been no reported suicides in the previous 15
months.287 No suicides have been publicly reported since
June 2008. The Director of ICE’s Office of Detention and
Removal Operations, James T. Hayes, Jr., stated at a
March 2009 Congressional hearing that the Department of
Homeland Security would begin requiring the release of
the number of immigration detainees who die in custody
to the Department of Justice beginning in 2009.288

Mental Health Care Needs of
Survivors of Torture
Asylum seekers who are detained in U.S. immigration
jails suffer from high levels of depression, anxiety and
post-traumatic stress disorder (PTSD), and these
conditions worsen the longer they are detained,
according to a study conducted by Physicians for
Human Rights (PHR) and the Bellevue/NYU Program for
Survivors of Torture.289 Some asylum seekers are
survivors of torture and may still be suffering from the
psychological effects of that torture. But specialized
counseling and other support mechanisms are either
not available or very limited for asylum seekers who are
held in immigration detention. At the same time, asylum
seekers and other immigrant detainees have reported
difficulties in obtaining adequate mental health care
more broadly, as documented in a number of recent
reports.290

U.S. Detention of Asylum Seekers—55

Isolated Facilities and Access to Justice
As DHS and ICE have expanded immigration detention
over the last few years, they have repeatedly chosen to
detain asylum seekers and immigrants in new facilities
that are located in areas that are not near pro bono legal
resources, the immigration courts, or U.S. asylum offices.
For example, between 2005 and 2008 alone, ICE began
detaining immigrants and asylum seekers at the:
„

Willacy Detention Center: Located in Raymondville,
Texas, the facility—which, with its 3,000 beds is the
largest U.S. immigration detention center—is 230
miles from San Antonio, and 300 miles from Austin.

„

Stewart Detention Center: Located in Lumpkin,
Georgia, the 1,524-bed facility is 140 miles south of
Atlanta, where the immigration courts and some pro
bono legal resources are located.

„

Otero County Processing Center: Located in
Chaparral, New Mexico, this 1,088-bed facility is 22
miles outside El Paso, Texas, where the nearest pro
bono legal organizations—which are already overstretched trying to assist asylum seekers and immigrants at the El Paso facility—are located.

„

South Texas (Pearsall) Detention Center: Located in
Pearsall, Texas (population 7,157), the 1,904-bed
facility is 57 miles outside of San Antonio, and 135
miles south of Austin, the nearest hub of pro bono
legal service providers. The facility is a four hour drive
from the Houston asylum office, which is responsible
for conducting credible fear screening interviews for
asylum seekers detained at the facility.

„

LaSalle (Jena) Detention Center: Located in Jena,
Louisiana, this 1,162-bed facility is 140 miles from
Baton Rouge, and 228 miles from New Orleans,
where pro bono legal resources are located.

„

McHenry County Jail: Located in Woodstock, Illinois,
the jail—with about 200 beds contracted by ICE—is
more than 60 miles from Chicago, the nearest hub of
pro bono legal service providers and where the immigration court is located.

According to ICE, detention facilities “are strategically
placed to support immigration law enforcement programs
and/or to facilitate easier removal of detainees to Central
American countries.”291 The rate charged by contractors to
detain asylum seekers and other immigrants at some of
these remote facilities may also be less than the rate
charged at more central locations.292 However, detention at
remote facilities leads to other government costs, such as
transfers and the additional costs that would be incurred
by the immigration courts or the USCIS asylum office to
transport judges and asylum officers to and from these
facilities.293
Detention in a remote area can compound the difficulty of
finding and retaining competent staffing. After a visit to the
South Texas Detention Center, for example, the DHS Office
of Inspector General noted that staff at the facility believed
staff vacancies in the medical department would endure
“indefinitely” due to the facility’s “rural location.”294
As detailed below, asylum seekers who have been
detained at these remote facilities have faced a series of
challenges. In too many instances, facilities used by ICE
were opened for months or even years before a Legal
Orientation Program was put in place to provide basic

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56—U.S. Detention of Asylum Seekers

legal information to detainees—a decision which left
hundreds of asylum seekers and other immigrant
detainees without basic legal information and counseling
to help them navigate the system and obtain legal
representation. These remote locations have also
undermined the access of asylum seekers to legal
orientation presentations and to legal representation itself.
At the same time, asylum seekers and other immigrant
detainees increasingly see immigration judges and U.S.
asylum officers on television screens due to the use of
video conferencing for hearings and credible fear
interviews.

Legal Orientation Presentations
The Department of Justice has contracted with the Vera
Institute of Justice since 2003 to provide legal presentations to immigration detainees in some—but not all—areas
with low rates of representation and limited legal services.
Known as the Legal Orientation Program (LOP), these legal
presentations are conducted by non-governmental
organizations, and provide both group orientations as well
as a limited number of individual workshops. In addition to
the Department of Justice’s program, non-governmental
organizations around the country have also coordinated
legal orientation presentations at detention facilities in
their areas. For example, Human Rights First works with
other local non-governmental organizations to provide
legal orientation presentations to detainees at the
Elizabeth Detention Center, in New Jersey.
Providing basic information about the asylum process, the
law on eligibility for asylum, and the availability of legal
services to detained asylum seekers is an important initial
step in ensuring that asylum seekers have a meaningful
opportunity to request protection. A study released in May
2008 by the Vera Institute—as part of the program
performance evaluation required by its contract with the
Department of Justice—concluded that unrepresented

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asylum seekers were more likely to be granted asylum
when they received individual orientations in addition to
group orientations. Specifically, the study found that
asylum seekers who had received more intensive services
were granted relief at a higher rate than those asylum
seekers who only attended the group orientations.295
Asylum seekers who have actual legal representation are
granted asylum at higher rates.296
However, as the Vera study documented, “the expansion
of detention has outpaced the expansion of funding for the
Legal Orientation Program.”297 In 2007, for example, the
program provided presentations to 34,000 detainees—just
over 10 percent of all individuals detained during that
period.298 In fiscal year 2008, $3.76 million was appropriated to fund the Legal Orientation Program. This enabled
the program to reach 48,000 detained immigrants and
asylum seekers. During fiscal year 2009, $4 million—only
a slight increase from the previous year—was appropriated
for the Legal Orientation Program. According to ICE, more
than 440,000 immigrants will be detained during 2009 at
several hundred facilities.299 In late 2008, the Legal
Orientation Program was expanded to twelve new
locations, including to the Willacy detention center—the
“Tent City”—in Raymondville, Texas. These legal presentations are now operational at 25 detention facilities,300 but
they still will only reach approximately 11 percent of
detained immigrants and asylum seekers.301

U.S. Detention of Asylum Seekers—57

Several of the mega-facilities opened by ICE in the past
few years were open for months or even years before a
Legal Orientation Program was put in place. The South
Texas (Pearsall) Detention Center, which opened its doors
in May 2005, did not have legal orientation presentations
in place until October 2006—well over a year after it
opened. Here are a few examples:
Detention
facility

Date opened

LOP start date

Time facility
was opened
without LOP

Willacy
Detention
Center

July 2006

November 2008 2 ½ years

Otay Mesa
Detention
Facility

2000

February 2008

8 years

South Texas
Detention
Center

May 2005

October 2006

1 year +

Stewart
Detention
Center

October 2006

November 2008 2 years

Jena Detention
Facility

November 2007 December 2008 1 year

As a result, hundreds of asylum seekers and immigrant
detainees were detained at facilities without access to a
legal presentation to help them find legal representation or
to provide them with basic information about the system
and their options. Many may have abandoned their cases
or were unable to win without this assistance.

Religious and Spiritual Support
In addition to detaining asylum seekers and other
immigrants at facilities that do not have adequate legal
support services in place, ICE has also detained immigrants at facilities that do not have adequate religious and
spiritual support programs in place.
The spiritual programs at the seven ICE-run Service
Processing Centers are staffed through a contract with
Church World Service Religious Services Program (CWS).
Through Church World Service, each detention center has
two staff members who work in the facility plus an
administrative staff member who provides off-site support.
In addition, Church World Service is able to draw on
dozens of community volunteers to provide proper religious
services for detainees of any faith.
However, many other facilities, including contract facilities
and county jails, do not have this kind of support. The
Willacy detention center—now expanded to 3,000 beds—
for example, had only one chaplain and no assistant at
the time of Human Rights First’s visit in May 2008, and
this was still the case in March 2009.302 Similarly, the
1,904-bed Pearsall detention center also had only one
chaplain at the time of Human Rights First’s visit in May
2008.

Asylum seekers and other immigrants have also been
detained in county and local jails that do not have legal
orientation presentations in place. For example, during the
spring of 2006, ICE began sending asylum seekers and
other detainees to the Regional Correctional Center (RCC)
in Albuquerque, New Mexico—a facility that did not have
legal presentations in place and was not located near
existing legal resources for immigrants. Asylum seekers
from China and Cuba were reported to be among those
transferred to this local jail. Legal presentations did not
begin at this facility for more than 6 months after the

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58—U.S. Detention of Asylum Seekers

facility began to be used by ICE. After local legal service
providers learned that asylum seekers and other immigrants were being detained at RCC, the Catholic Diocesan
Migrant and Refugee Services began organizing monthly
group presentations for detainees. ICE withdrew all 600
immigration detainees from the RCC in August 2007,
following numerous reports of poor detention conditions.303

Access to Legal Representation
“Our Austin office is located more than
100 miles from the Pearsall Detention
Center—a facility, located in a remote rural
area, where many asylum seekers are held.
The four hour roundtrip drive and long
waits to see our clients even after we arrive
at the facility limit our ability to take on
more cases of asylum seekers detained at
Pearsall.”
Attorney at Catholic Charities of Central Texas, Austin,
February 2009304

Legal representation is the single most important factor in
determining whether an individual will be granted asylum,
according to studies on representation of asylum
seekers.305 One study conducted by legal experts found
that represented asylum seekers were almost three times
as likely to be granted asylum in immigration court than
those who were unrepresented.306 A report by the
Government Accountability Office, similarly found “more
than a three-fold increase” in the asylum grant rate for
asylum seekers who were represented, as compared to
those without representation.307
Despite the quantifiable difference legal representation
can make, many asylum seekers do not have a lawyer,
and are left to navigate the complex system on their own.
Asylum seekers are less likely to obtain legal representa-

A Human Rights First Report

tion if they are in immigration detention. Over one-third of
detained asylum seekers do not have legal representation
in immigration court.308
The remote location of some immigration detention
facilities increases the difficulty of securing legal representation for asylum seekers. Overstretched and underfunded
non-profit organizations may have little or no capacity to
send an attorney—perhaps their only attorney—on a multihour trip to a detention facility. During that same time, the
organization could have assisted several other immigrants
who were not detained. Long wait times at detention
centers can also limit legal representation. In addition to
the several hours of travel time to and from a facility,
some attorneys—like those who represent asylum seekers
detained at the Pearsall facility—experience delays in
gaining access to their asylum clients after arriving at the
facility.309
A representative from a San Antonio pro bono
legal organization that represents asylum seekers
detained at the Pearsall detention center, reported
regularly having to wait two or more hours before
being able to meet with his clients. On one occasion, he recounted, he waited five hours. Delays
are in part due to the fact that the detention facility—though housing nearly 2,000 detainees and
about 200 asylum seekers at any given time—only
has three attorney-client visitation rooms. Facility
staff also informed pro bono attorneys that they
did not have sufficient staff to escort detainees to
and from the visitation rooms in a timely manner.
In its 2005 study, the U.S. Commission on International
Religious Freedom found that many of the facilities used
to detain asylum seekers subject to expedited removal
were “located in rural parts of the United States, where few
lawyers visit and even fewer maintain a practice.” The
Commission concluded that “[t]he practical effect of
detention in remote locations…is to restrict asylum
seekers’ legally authorized right to counsel.”310 A May

U.S. Detention of Asylum Seekers—59

2008 report issued by the Vera Institute of Justice, a
nonprofit organization which contracts with the Department
of Justice to provide legal orientation presentations at a
number of facilities, found that “[a]t several sites, the
remote location of the detention facilities…a shortage of
mentors for legal representatives without experience in
immigration law, and a lack of pro bono counsel have all
presented significant obstacles” to coordinating pro bono
representation for detainees.311

Remote Detention Location Limits
Representation
In June 2008, a new 1,086-bed immigration detention
center opened in Otero County, New Mexico. This facility is
located close to the existing Otero County Prison which
holds immigration detainees. An attorney from a nonprofit
legal service provider in El Paso, Texas said:
“Individuals detained at the Otero Service Processing
Center face several challenges. There are very few
opportunities to receive free legal representation in New
Mexico. The closest city to Otero is El Paso, and most of
the non-profit organizations in El Paso receive funding to
provide free services to individuals detained in Texas. Due
to the remote location, even private attorneys are a good
distance from Otero. Individuals detained in Otero are
often transferred to Otero from locations all over the
United States. So, in addition to being isolated and away
from legal representation, detainees do not have access
to family members to assist in the gathering of documents
relevant to their case.”312

Video Justice? U.S. Immigration
Court Hearings and Asylum
Interviews Conducted by Video
“If someone’s sitting in front of you, he can
see your emotion. As you tell your story of
what’s happened to your family and what’s
happened to your country he can see your
emotion. If you’re on TV, maybe he can’t
see you clearly.”
Refugee from Somalia, who was detained for nearly 5
months at the Pearsall detention center before being
granted asylum.

“I thought it was a problem to do court by
video, because sometimes the facial
features don’t appear in detail.”
Iraqi Christian man who was detained for 4 and a half
months at the Otay Mesa facility in California before
being granted asylum.

At some of these remote detention centers, asylum
seekers often see U.S. immigration judges and asylum
officers only on television sets. Asylum hearings and
asylum screening interviews are increasingly conducted by
“video conferencing”—particularly at remote facilities. At
the Pearsall facility in Texas, which housed about 900
asylum seekers in 2007 alone, Human Rights First’s
delegation was informed by local ICE officers that almost
all immigration court hearings and asylum office screening
interviews are conducted by video conferencing.313
Similarly, at the Willacy and Port Isabel facilities in
southwest Texas, local pro bono and other attorneys report
that the majority of all hearings—including the merit
hearings in asylum cases—are conducted by video
conference. Recently, the San Diego immigration court has
also begun conducting video hearings with detainees,
including asylum seekers.

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The Executive Office for Immigration Review—the branch of
the Department of Justice that oversees all immigration
courts—anticipated in 2005 that the use of video
conferencing in immigration courts would grow, with the
goal of having every immigration court outfitted with video
conferencing equipment.317 A February 2009 National
Public Radio story on the use of video conference
technology in immigration courts reported that ICE plans to
have video conferencing capabilities at all new detention
locations.318

At some of the remote detention centers, asylum seekers often see U.S.
immigration judges only on television sets.

When visiting both the 1,904-bed Pearsall facility and the
now 3,000-bed Willacy facility, Human Rights First’s
delegation saw courtrooms that were centered around
television sets, rather than live immigration judges. From
our meetings with local immigration officials, pro bono
attorneys and asylum seekers, Human Rights First learned
that—during these video hearings—the asylum seeker may
end up sitting essentially alone in the courtroom in front of
the television set, or in some cases next to the government’s trial attorney, while the judge sits in a courtroom at
another location. If the asylum seeker is represented, his
or her attorney must choose whether to sit next to the
asylum seeker or whether to appear in person before the
judge. One federal appeals court called this kind of choice
a “Catch 22”—requiring an attorney to decide between the
ability to confer with a client during a hearing and the
opportunity to “interact effectively” with the judge and
opposing counsel.314
By 2004, video conferencing equipment had already been
installed in 40 immigration courts and 77 other sites,
including detention centers and correctional facilities.315 By
May 2006, the number of immigration courts with
videoconferencing capabilities had grown to 47 out of the
then-existing 53 immigration courts around the country.316

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In recent years, there has also been a significant increase
in the number of asylum screening interviews—known as
credible fear interviews—that are conducted by video
conference. The U.S. asylum office—part of DHS’s U.S.
Citizenship and Immigration Services—began using video
conferencing to conduct credible fear interviews in late
2005. In fiscal year 2007, the U.S. asylum office
conducted over 60 percent of all credible fear interviews
by video conference. If an asylum seeker does not “pass”
this interview or a subsequent review (also increasingly
conducted by video), the asylum seeker is not even
allowed to file an application for asylum in this country.
According to statistics provided by the asylum office for
fiscal year 2007, the “pass rate” for credible fear
interviews conducted by video conference and those
conducted in-person was comparable.319 Other asylum
office statistics show that the credible fear “pass rate” fell
from 94 to 59 percent between 2004 and 2008.320 Video
conferencing is primarily conducted by the Houston
asylum office which has jurisdiction over all the large
facilities in Texas as well as asylum seekers detained in
New Mexico, Colorado and several additional states.321 The
Houston asylum office is now responsible for more than
half of all credible fear interviews conducted in the United
States.322 The Miami asylum office also conducts some
credible fear interviews by video.323

U.S. Detention of Asylum Seekers—61

The Executive Office for Immigration Review (EOIR) has
praised video conferencing as “beneficial to both
Immigration Courts and the alien respondent,” stating that
video conferencing “saves travel time for Immigration
Judges…saves travel costs and improves safety and
security.”324 EOIR’s lack of funding in recent years—
especially as compared to ICE—has been widely reported.325 EOIR has also asserted that video conference
hearings are “as fair and effective as in-person hearings.”326
However, a 2008 analysis published in the Georgetown
Immigration Law Journal and based on immigration court
statistics provided by the EOIR for fiscal years 2005 and
2006, demonstrates that asylum seekers are about half as
likely to be granted asylum when their cases are heard by
video conference rather than in-person.327 In asylum cases,
asylum seekers have to recount details of trauma and
torture. This kind of testimony is difficult enough for a
refugee—but testifying before an adjudicator who appears
on a television set, with a translator who is often participating by telephone, makes the entire experience surreal.
Research on the use of video for communication, including
court testimony, has concluded that the technology “does
not effectively convey the full range of nonverbal cues”
and “inevitably skews the perceptions of others” by
altering nonverbal cues and failing to replicate normal eye
contact.328
A finding as to the asylum seeker’s credibility is central to
the claim. Immigration law lays the responsibility of
making a credibility assessment on the immigration judge,
based on “demeanor, candor, or responsiveness” of the
applicant, among other factors.329 When an asylum seeker
appears in-person before an immigration judge, the judge
has an opportunity to observe the witness. According to
the 2008 Georgetown study, video conferencing fails to
“sufficiently convey a number of the nuanced nonverbal
cues that are inherent in oral communication” and
“undermines the [asylum seeker’s] ability to make the
emotional connection” with the judge.330 The asylum

seeker “will seem less trustworthy and less credible.” A
judge’s perception of a witness’s demeanor may be
skewed when the judge is only able to see the asylum
seeker on a 27 inch television screen. A federal court,
reviewing the use of video conferencing in an asylum
hearing, stated that video conferencing rendered it
“difficult for a factfinder…to make credibility determinations and to gauge demeanor.”331

Communication with ICE
While larger facilities often have on-site ICE staff, many of
the county jails holding immigrant detainees do not have
ICE staff working at the facility on a full-time basis. In fact,
detainees rely on visits by ICE officers for communication
on the status of their cases. During a visit by Human
Rights First staff to two Virginia jails (the Hampton Roads
Regional Jail and the Piedmont Regional jail in November
2008), detained asylum seekers and other immigrants
reported that they did not have frequent interactions with
ICE officers. Detainees reported that ICE officers visited the
facility about once a week, but during those visits they
only had the opportunity to meet with a handful of
detainees and were unable to answer questions on the
status of other detainees’ cases. Asylum seekers and other
immigrants detained at these two Virginia jails also told
Human Rights First that, though they had been provided
with the name and a phone number for their deportation
officer, they were unable to reach them, and when they left
voice messages their phone calls were not returned. An
ICE deportation officer accompanying Human Rights First
on the tours of the facilities confirmed that ICE officers
visit the jails about once or twice a week. However, he
declined to provide information—citing “security” concerns—on the number of detained cases each ICE
deportation officer managed, or how many deportation
officers oversaw the cases of the 200-plus detainees at
each of the two jails. Local legal representatives in

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62—U.S. Detention of Asylum Seekers

Minnesota and Illinois also report that there are no ICE
officers working at many of the jails where asylum seekers
and other immigrants are held, and ICE officers instead
visit the facility.

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U.S. Detention of Asylum Seekers—63

Alternatives to Detention or
Alternatives to Release?
“There should be a presumption against detention. Where there are monitoring mechanisms which
can be employed as viable alternatives to detention, (such as reporting obligations or guarantor
requirements…these should be applied first unless there is evidence to suggest that such an alternative will not be effective in the individual case.”
UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (February 1999)

A number of programs, known as “alternatives to
detention,” have been successfully tested in the United
States. These programs generally provide for release from
immigration detention with some additional measures to
monitor the individual after release. These measures can
include in-person reporting, reporting by telephone, and
home visits by representatives of the organization
overseeing the program. The UNHCR, in a comprehensive
study of alternatives to detention for asylum seekers,
concluded that the factors that influence the effectiveness
of an alternatives to detention program include: the
provision of legal services, ensuring that asylum seekers
are informed about their rights and obligations, and
screening for family or community ties or using community
groups as sponsors.332
Participants in these kinds of programs have very high
“appearance rates” for their immigration court hearings—
ranging from 93 percent to 99 percent.333 While the
average daily cost of detention is $95, the average daily
cost for an alternatives to detention program falls between
$10 and $14.334 These kinds of programs—when used as
true alternatives to detention for individuals who could not

After 30 months in detention and nearly two years of compliance with
the alternative program, this Sri Lankan asylum seeker still has to wear
a large ankle bracelet.

otherwise be released on parole or bond—represent
significant cost-savings to the government.
Despite these documented successes and the cost
savings of these programs, ICE has not implemented a
nationwide program of alternatives to detention for all
eligible immigration detainees. Many asylum seekers are
never even assessed for potential release through an

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alternatives to detention program. Instead, over the last
few years:
„

ICE has not requested—and Congress has yet to
authorize—sufficient funding to expand alternatives
programs and implement them nationwide. Instead of
expanding alternatives to detention programs—with
appearance rates of 93 to 99 percent—for many
years, ICE has devoted the overwhelming majority of
its growing detention and removal budget to creating
more detention beds.335

„

ICE has relied heavily upon highly restrictive
electronic monitoring programs—through the use of
“ankle bracelets”—rather than using alternative programs which connect individuals with communitybased services, including legal assistance. Such intense monitoring—especially when combined with
other forms of supervision such as curfews—can rise
to the level of custody, rather than an alternative to
custody.

„

Instead of using these programs to minimize
unnecessary detention of asylum seekers, ICE has
used its “alternatives to detention” programs to supervise asylum seekers who would not have
previously been detained at all or who would have
been released without conditions.

Early Models
A number of successful models of alternatives to detention
have been tested in the United States. These early models
have demonstrated high appearance rates for asylum
seekers—ranging from 93 to 96 percent—with significant
cost savings for the U.S. government.
From 1997 to 2000, the Vera Institute of Justice
conducted a pilot alternative program. In this pilot
program, which was called the Appearance Assistance

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Program, the Vera Institute supervised the release of
asylum seekers and other non-citizens. In order to be
released to supervision, participants were required to
report regularly in person and by phone. Their whereabouts
were monitored. Participants were also provided with
information about the consequences of failing to comply
with U.S. immigration laws. Participants in a less intensive
program were given reminders of court hearings and were
provided with legal information, and referrals to lawyers
and other services.336
The Vera Institute pilot project reported an appearance
rate of 93 percent for asylum seekers released through its
appearance assistance program, and a saving of almost
$4,000 per person. Based on its research, the Vera study
concluded that: “Asylum seekers do not need to be
detained to appear for their hearings. They also do not
seem to need intensive supervision.”337
Another successful alternative model was coordinated by
the Lutheran Immigration and Refugee Service (LIRS).
Through that project, the former INS released 25 Chinese
asylum seekers from detention in Ullin, Illinois to shelters
in several communities. The community shelters reminded
participants of their hearings, scheduled check-ins with the
INS, organized transportation and accompanied asylum
seekers to their appointments. Nonprofit agencies also
found pro bono attorneys for all of the asylum seekers who
were released to the shelters. The project achieved a 96
percent appearance rate.338

Current Programs: Limited in Scope
In 2002, encouraged by the success of the Vera project,
Congress allocated $3 million for alternatives to detention,
clarifying that the funds should be used “to promote
community-based programs.”339 Over the years, Congress
has significantly increased funding for these programs,
and by 2009 this funding had increased to $63 million—a

U.S. Detention of Asylum Seekers—65

$7.2 million enhancement from 2008 as well as $7.2
million above the amount requested by ICE.340 Nevertheless, the funds are comparatively small, in stark contrast
to ICE’s $1.7 billion budget allocation for detention bed
space. In fact, ICE has budgeted only 2.6 percent of its
$2.4 billion dollar detention and removal budget for
alternatives to detention programs.341
Many—if not most—asylum seekers are not assessed for
the possibility of release through an alternatives to
detention program. ICE has advised Human Rights First
and other groups that it does not track how many of the
individuals placed into alternatives to detention programs
are asylum seekers.
A number of successful programs have been tested by ICE
in recent years, with significant cost savings for the U.S.
government. These programs generally allow for release of
individual immigration detainees—who are found not to be
a threat to the public or a flight risk—from immigration
detention, with some additional measures to monitor the
individual upon release.342 The level of supervision
generally becomes less restrictive over time. These
supervision measures often include regular reporting to an
immigration office, home visits, telephone reporting with
voice recognition—and requiring the individual to wear an
electronic monitoring device (an ankle bracelet). In some
cases however, the reporting requirements have been
onerous—requiring for example that an asylum seeker
report on a weekly basis to a location that is several hours
away from their home or restricting the asylum seeker’s
movements through a very restrictive curfew. These kinds
of requirements can pose obstacles to the individual’s
work and family responsibilities.

A Sri Lankan fisherman, who was a victim of kidnapping by the Liberation Tigers of Tamil Eelam
(LTTE), was detained for 30 months in the United
States while ICE opposed his request for asylum
on the ground that his payment of his ransom
consisted “material support” to the armed group.
When he was finally released from detention pending a decision by the Board of Immigration
Appeals, he was placed into a restrictive supervision program. He was fitted with an ankle bracelet
and initially required to report on a monthly basis.
Eventually, this was reduced to in-person reporting
every six months. After nearly two years of compliance with all reporting requirements, following his
30 months of detention, the fisherman is still
required to wear a large ankle bracelet and is
subject to home visits.
Currently, there are two ICE supervision and reporting
programs in operation: the Intensive Supervision Appearance Program (ISAP), and the Enhanced
Supervision/Reporting Program (ESR).
The ISAP was launched in June 2004 and is managed by
the private contractor Behavioral Interactions. It was
originally piloted in eight cities—Baltimore, Maryland;
Denver, Colorado; Kansas City, Missouri; Miami, Florida;
Philadelphia, Pennsylvania; Portland, Oregon; San
Francisco, California; and St. Paul, Minnesota—and has
since been launched in an additional four cities—Delray
Beach, Florida; Los Angeles, California; New York City, New
York; and Orlando, Florida. Each city has the capacity to
enroll approximately 200 individuals. Under ISAP,
participants initially wear an ankle bracelet or report in
person or by telephone to a case manager.343 ISAP
participants receive a list of free legal and social service
providers, as well as information on transportation,
translation services, educational institutions, consulate
contacts, and homeless shelters.344 In addition, the case
manager works with the individual to identify a “sponsor”

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or guarantor. The ISAP program initially cost $21 per day,
but when the contract with the Behavioral Interactions was
renegotiated in 2007, the cost was reduced to $14 a
day.345
The ESR program was launched in fiscal year 2008 and is
also managed by a private contractor—Group 4 Securicor
(G4S).346 Its implementation replaced an earlier program,
known as the Electronic Monitoring Program, which was
very similar in scope. ESR is available to individuals living
within 50 miles of one of the 24 ICE Field Offices and 3
ICE sub-offices.347 DHS has described ESR as a “more
effective monitoring program…providing structured and
closely supervised electronic monitoring, residence
verification, home visits, in-person reporting and document
requirements for program participants.”348 The ESR also
provides a separate electronic monitoring program which
can be made available to individuals regardless of their
location. The ESR program costs an average of $10 a day,
and ICE projected 7,000 participants during fiscal year
2009.349
Appearance rates for these alternatives to detention
programs have shown that they are successful. ICE has
reported that individuals participating in the ISAP program
had a 99 percent appearance rate for hearings, a 95
percent appearance rate for final removal hearings, and a
91 percent compliance rate with removal orders. The ESR
program has a 98 percent appearance rate for hearings, a
93 percent appearance rate for final removal hearings,
and a 63 percent compliance rate with removal orders.350
The ESR program is centered more squarely on forms of
electronic monitoring, and does not provide even the
limited community-based support—in the form of
information and referrals to community and legal
services—that ISAP participants receive.
Despite the existence of these programs, the numbers of
individuals released into alternative programs is small,
especially compared with the number of individuals
detained on an annual basis. In March 2009, ICE reported

A Human Rights First Report

that it had only 17,400 participants in alternatives to
detention programs.351 By contrast, during 2009, ICE
expects to detain more than 440,000 individuals.

Alternatives to Detention?
ICE’s “alternatives to detention” programs have focused
largely on the use of electronic monitoring rather than
other supervision models. Both ISAP and ESR provide for
electronic monitoring, at least during the initial stages of
the program. Though in some cases the level of supervision “ratchets down” and electronic monitoring is
eliminated, in many cases electronic monitoring is
continued even after the asylum seeker has been regularly
complying with program requirements for months.
Such intensive use of electronic monitoring—especially
when combined with other restrictive monitoring measures
such as curfews, regular check-ins, and home visits—can
sometimes essentially constitute a form of “house arrest,”
or continued detention, rather than a meaningful
alternative to detention.
In addition, in recent years, ICE appears to have used
alternatives to detention to monitor or restrict the
movement of asylum seekers and other immigrants who
would not otherwise have been detained—in effect using
these measures as an “alternative to release.” 352 In some
cases, ICE has briefly detained asylum seekers who have
applied for asylum affirmatively (a population that is not
normally detained)—essentially for the purpose of placing
them into one of its “alternatives to detention” programs.
In other cases, asylum seekers who have been ruled by
U.S. immigration courts to be “refugees” who are entitled
to withholding of their removal, have been placed into
these programs instead of being released from detention
without additional supervision. For example:

U.S. Detention of Asylum Seekers—67

Ankle Bracelet for Guinean Torture Survivor who
applied for asylum affirmatively in Minnesota: A
Guinean torture survivor was enrolled in the ISAP
program when his case was referred to the immigration court by an asylum officer. He had never
been detained previously, and had no criminal
record. Initially, he was required to wear an ankle
bracelet and report to ISAP in person three times
per week, plus be at home one day a week. He
received two warnings at work because he had to
leave work during his lunch hour for his check-ins
and he was sometimes late returning to work. He
was embarrassed and ashamed of the ankle
bracelet, which he said made him feel like a criminal. Even after the ankle bracelet was removed, he
remained on supervision for more than a year. He
continues to be required to check in every month,
even though he was granted withholding of removal and cannot be returned to Guinea.353

Ankle Bracelet and other supervision for Congolese torture survivor: A Congolese torture survivor,
who had not previously been detained, was enrolled in the ISAP program while his asylum case
was pending before the immigration court. Though
over time his reporting requirements became less
onerous, he was initially placed on an ankle bracelet. The ankle bracelet remained on his leg during
his appeal to the Board of Immigration Appeals,
and after his case was remanded back to the
immigration judge. He was finally granted asylum
by the immigration court and only then was his
ankle bracelet removed.355
ICE has confirmed its intent to use alternatives to
detention programs to cast a wider net on the population
it monitors, stating that it “is expanding the [alternatives to
detention] program to encompass a larger portion of the
non-detained docket.”356

Ankle bracelet for Haitian asylum seeker in Florida:
In the summer of 2008, a young Haitian woman
was taken into custody by ICE officers after she
exited the courtroom where she had just submitted
her asylum application. She was enrolled into an
alternatives to detention program and an ankle
bracelet was put onto her leg. She was required to
report every two weeks as part of ISAP. Even after
she married a legal permanent resident who filed a
relative petition for her, she continued to be subject to the check-in requirements and the ankle
bracelet.354

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Recommendations
The United States should bring its laws and practices
relating to immigration detention in line with international
standards and U.S. traditions of fairness. The United
States has pledged to treat those who seek asylum in
accordance with its commitment to the Refugee Convention and Protocol and the International Covenant on Civil
and Political Rights, which prohibits arbitrary detention.
Under international standards, asylum seekers should
generally not be detained. When they are, that detention
should have adequate safeguards, including procedures to
ensure review by an independent authority or court.
Alternatives to detention should be used. And when an
asylum seeker is detained, he or she should not be held in
penal or prison-like conditions. Detention policies should
not discriminate against asylum seekers on the grounds of
race, religion, national origin, or any other immutable
characteristic.
Thorough reform of the U.S. detention system will require a
comination of legislative, regulatory and administrative
actions. We have outlined below a series of significant
changes that will improve U.S. detention policies and
practices in general and for the victims of persecution who
seek this country’s protection.

clear that any bond requirements should be appropriate to
the circumstances and means of the asylum seeker, and
that the immigration courts can direct that an individual be
released into an alternatives to detention program.
The U.S. Congress should enact legislation providing
tehse asylum seekers with access to immigration court
custody hearings to ensure lasting change by putting this
change into law as well.

2. Other Reforms to Limit Unnecessary
Detention
In addition to ensuring immigration court review of
detention for asylum seekers, the Department of
Homeland Security and Immigration and Customs
Enforcement should reform the parole process and create
a nationwide program for supervised release or other
alternatives to detention.
„

Reform the Parole Process.
•

Regulations based on prior criteria: The Department of Homeland Security and Immigration
and Customs Enforcement, should issue regulations providing for the release of an asylum
seeker who can establish identity, has ties to the
community, satisfies the credible fear standard,
and does not pose a danger to the community.
These regulations should require that all arriving
asylum seekers be assessed for parole eligibility
after passing through the credible fear process.

•

Stop Detaining Those Found to be Refugees:
ICE should stop its local practice of detaining individuals who have been granted withholding of

1. Review of Detention by the Immigration
Courts
The Departments of Justice and Homeland Security
should revise current regulatory language to provide
arriving asylum seekers with the chance to have their
custody reviewed in a hearing before an immigration court,
a safeguard afforded other immigration detainees.357 In
revising these provisions, the regulations should make

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U.S. Detention of Asylum Seekers—69

removal or protection under the Convention
Against Torture. ICE should stop using the regulation that allows for a period to arrange for
possible deportation to a third country as a justification for extending by 90 days the detention
of these individuals. The new parole regulations,
or any new parole policy, should provide for the
release of individuals determined by the immigration court to be entitled to asylum or
withholding of removal and who do not present a
risk to the community—as did the February 9,
2004, ICE guidance.
„

Create a Nationwide System of Supervised Release.
When an asylum seeker is not eligible for release on
parole and some additional supervision is determined
to be necessary, the individual should be assessed
for release to a supervised release program or other
alternative to detention. The Department of Homeland
Security and Immigration and Customs Enforcement
should significantly expand the existing framework
and create a nationwide system using communitybased alternatives to detention programs. These programs should be administered in partnership with
community-based organizations and should be full
service programs, incorporating case managers, referrals to legal and social service providers and
assistance with accessing information about court
and case information. These programs should be
used to secure the release from detention of individuals who are not otherwise eligible for parole but
who present no risk to the community.
•

Individualized assessment: The level and kind
of supervision should be determined after an individualized determination, rather than through a
system that automatically places ankle bracelets
on all individuals. The individual should be able
to seek review of this determination through an
immigration court custody hearing.

•

Ankle Bracelets: Electronic monitoring devices
(ankle bracelets) should only be used when determined to be necessary, and should not be
used in a manner that restricts freedom of
movement to such an extent as to essentially
constitute continued custody.

Congress should:
„

Enact legislation mandating the regulations and other
measures necessary to reform the parole process for
asylum seekers (which are outlined above), if the
Department of Homeland Security does not implement those reforms, and requiring DHS to implement
a nationwide program of alternatives to detention
contracting with community-based organizations as
described above.

„

Appropriate funding for alternatives to detention and
redirect the savings realized from detention to alternatives to detention, leading to an overall cost
savings.

3. Stop Using Jail-like Facilities
The Department of Homeland Security and Immigration
and Customs Enforcement should stop using jails and
jail-like facilities to detain asylum seekers and other
immigration detainees. The Department should also end
the practice of detaining families. Instead, asylum seekers
should be:
„

Released from detention on parole or through an
immigration court custody hearing if they meet the
applicable criteria; or

„

Released to a supervised release program, or other
alternative to detention program, if some supervision
of the release is necessary.

When asylum seekers are detained—during the period of
initial “mandatory” detention under the U.S. expedited
removal statute, or if continued detention is determined to

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be necessary after a fair and individualized assessment—
they should not be held in penal or prison-like facilities,
but rather in facilities where the they can wear their own
clothing and the conditions of their detention are not
prison-like, as outlined below.
The Department of Homeland Security and Immigration
and Customs Enforcement should immediately review all
facilities, identify and implement changes that can be
made promptly (such as changes in uniforms, handcuffing
policies, and movement within the facility) and identify
which facilities should no longer be used.

„

The Department of Justice should:
„

Implement Nationwide Legal Orientation Presentations: The Department of Justice should seek
appropriate funding to expand legal orientation programs (LOPs) to all detention facilities and jails used
to hold asylum seekers and other immigration detainees. While not a substitute for legal counsel, these
presentations promote fundamental fairness and
improve the efficiency of the courts.

„

End its use of Video Asylum Hearings: The Department of Justice should direct the immigration courts
to stop conducting asylum hearings by video conferencing, and should request and allocate funding to
ensure that the immigration courts can conduct inperson hearings at detention centers.

Congress should also prohibit the detention of asylum
seekers in prison-like conditions and should require DHS
to provide an assessment of changes that it will make to
end the detention of asylum seekers in penal conditions.

4. Stop Opening Remote Facilities and Ensure
Adequate Legal and Other Support Prior to
Using Facilities
The Department of Homeland Security should direct and
Immigration and Customs Enforcement should take steps
to:
„

„

Ensure that Immigration and Customs Enforcement
officers are in regular communication with asylum
seeker and immigrant detainees, including those held
at county and local jails. Steps should include increasing the presence of officers at facilities and
implementing an effective method for detainees to
speak to Immigration and Customs Enforcement officers—other than leaving messages that are not
returned.

Stop opening and using facilities located in remote
areas that are far from legal representation resources,
immigration courts, or an adequate pool of medical
staff.

Congress should:
„

Ensure that legal orientation presentations, adequate
legal representation, full medical staffing, immigration
judges and asylum officers in person (and not by
video conferencing), and pastoral care are actually in
place and funded before detaining asylum seekers or
other immigrants at a facility—working with the Department of Justice and U.S. Citizenship and
Immigration Services as well as legal, religious, community and other non-governmental stakeholders.

Appropriate funds to expand Legal Orientation
Programs nationwide so that all asylum seekers and
others in immigration detention receive access to
legal information and assistance in assessing their
legal options.

„

Ensure adequate funding to both the immigration
courts and the asylum office so that they can conduct
asylum hearings and screening interviews in person
rather than by video.

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U.S. Detention of Asylum Seekers—71

5. Improve the Conditions of Detention
Detention Should not be Based on a Penal Model: The
detention standards used by the Department of Homeland
Security for the detention of asylum seekers should be
revised to provide for detention in which individuals can,
for example: wear their own clothing (rather than prison
uniforms); have contact visitation (as opposed to visits
through plexi-glass barriers) with family and friends; and
have freedom of movement within the secure facility (so
they can use outdoor areas, libraries, indoor recreation, or
cafeteria areas during the course of the day). Officers
should not wear prison guard uniforms, but should be
dressed in an alternate uniform, such as a white shirt and
tan pants. Handcuffs and shackles should not be used (in
general and during transportation) absent extraordinary
circumstances. Some of these changes could, and should,
be made at some facilities immediately.
Medical and Mental Health Care Must be Improved: The
Department of Homeland Security and ICE should take
steps to improve the provision of medical and mental
health care at all facilities where asylum seekers and other
immigrant detainees are held, seeking input from
independent experts and medical professionals, many of
whom have provided detailed recommendations on
improving medical care.358 These reforms should include
steps to ensure that:
„

Medical units have an appropriate level of staffing
prior to detaining asylum seekers and other immigrants at a facility, and a mechanism is in place to
ensure that detainees are removed from facilities that
do not have adequate medical staffing.

„

Interpretation services are appropriately used during
medical visits at all facilities, including by creating a
mechanism and/or form to evaluate and monitor the
use of interpreters by medical staff at facilities.

„

Mental health care should include specialized
counseling for survivors of torture and trauma.

Congress should continue to provide increased oversight
to issues relating to detainee health care and deaths, and
should pass legislation mandating improved medical care
and the independent investigation of detainee deaths.

6. Protection Mechanisms at the Department
of Homeland Security
The Secretary of Homeland Security should:
„

Create an Asylum and Refugee Protection Office
within the DHS Secretary’s Office. This office should
ensure that policies, practices and legal interpretations relating to asylum seekers and refugees are
consistent with this country’s legal commitments and
that the reforms recommended in this report are implemented. This office should be provided with the
resources, staffing and authority to oversee policies
and practices relating to asylum seekers and refugees
throughout the Department of Homeland Security. The
office should have both operational and policy oversight of the various immigration agencies on asylum
and refugee issues, and should be headed by a political appointee, with extensive experience in refugee
issues, who reports directly to the Department of
Homeland Security Secretary. This senior official
should have at least 8 staff members who are responsible for areas that include: legal standards for
detention and parole, parole and release policies and
practices; detention conditions, including medical
and mental health care and legal access; inspections
and expedited removal; border patrol and expedited
removal; Coast Guard, interdiction and asylum/migration issues; refugee resettlement issues;
and the U.S. asylum adjudication system.

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„

Maintain a Senior Refugee and Asylum Policy
position. The Secretary should maintain a Senior
Refugee and Asylum Policy position in the DHS policy
office, and provide that position with sufficient staffing and resources. This position should report directly
to the DHS Assistant Secretary for Policy.

„

Strengthen the Deputy Secretary’s capacity and
chain-of-command authority, in order to increase
coordination across bureaus on refugee and asylum
matters, and to ensure that the Asylum and Refugee
Protection Office’s directives and guidance are followed by the various immigration-related agencies.

„

Direct the DHS General Counsel to make asylum
seeker and refugee protection a priority by ensuring
compliance, throughout the Department of Homeland
Security, with refugee and human rights treaty obligations. The new Department of Homeland Security
General Counsel should set up mechanisms to ensure
that Coast Guard, Immigration and Customs Enforcement, Customs and Border Protection and U.S.
Citizenship and Immigration Services policies and
actions are in accordance with U.S. treaty obligations.
To ensure that positions and actions of Department of
Homeland Security “trial attorneys” are in accord with
U.S. treaty obligations, these attorneys should be
redeployed from Immigration and Customs Enforcement to a new litigation unit within the General
Counsel’s office. The General Counsel should also
create the position of Associate General Counsel for
Refugee and Asylum Matters.

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7. Provide Timely and Accurate Statistics
The Department of Homeland Security should ensure that
Immigration and Customs Enforcement improves its
systems for tracking data relating to the detention of
asylum seekers, including data reflecting the number of
detained asylum seekers, their age, their gender, the
location of their detention, the length of their detention,
and their parole or release from detention. This information, which is required by law to be provided annually to
Congress and to the public on request (under 8 U.S.C. §§
1377-1378), should be provided to both Congress and
the public immediately after the end of each fiscal year in
a timely manner.

8. Improve Conduct of Expedited Removal
The Department of Homeland Security should ensure that
Customs and Border Protection (CBP) implements critical
reforms recommended by the U.S. Commission on
International Religious Freedom and ensures that
procedures designed to protect asylum seekers from being
returned to their persecution are followed. In particular,
the Department of Homeland Security and Customs and
Border Protection should:
„

Stop detaining asylum seekers who arrive with valid
visas that are considered invalid by Customs and
Border Protection solely because the individual requests asylum or indicates a fear of return.

„

Ensure Customs and Border Protection officers ask all
required questions aimed at ensuring that a refugee
is not mistakenly deported, and ensure that any officer who fails to do so is disciplined and no longer
permitted to perform this function.

U.S. Detention of Asylum Seekers—73

U.S. Citizenship and Immigration Services should direct
and the Asylum Division should take steps to:
„

Ensure that all credible fear interviews are conducted
in a timely manner and request and allocate appropriate funding so that such interviews are conducted
in person. If Immigration and Customs Enforcement
stops locating detention facilities in remote areas, the
reasons for using video conferencing for credible fear
interviews should decrease significantly.

„

Conduct an assessment of the decline in the credible
fear grant rate, the decline in referrals for credible
fear interviews and the impact of video conferencing
on the conduct and outcomes of credible fear interviews.

Congress should authorize the U.S. Commission on
International Religious Freedom to conduct a review of the
expanded use of expedited removal and its impact on
asylum seekers, and should appropriate funding for this
assessment.

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Appendix
Methodology
Human Rights First has monitored DHS and ICE detention policies and practices relating to asylum seekers since the
Department of Homeland Security took over responsibility for asylum and immigration matters. Through our legal representation program, which provides pro bono representation to refugees seeking asylum in the U.S. and legal orientation
presentations to detained asylum seekers and other immigrants, we have interviewed hundreds of detained asylum seekers
and other immigrant detainees. During 2008 and 2009, Human Rights First conducted additional research relating to the
U.S. detention of asylum seekers. This research included:
„

Visits to and tours of more than ten detention facilities—the South Texas Detention Center, and the Willacy Detention
Center in Texas; the Elizabeth Detention Center, in New Jersey; the Columbia Care Center facility in South Carolina; ;
the Regional Correctional Center in New Mexico; the El Paso Processing Center in Texas; and the Hampton Roads Regional Jail and the Piedmont county jail in Virginia. Other facilities visited by Human Rights Staff in the course of our
pro bono legal work and detention monitoring include the Hudson county jail, Monmouth county jail, and Sussex
county jail in New Jersey. Human Rights First also sought access to additional facilities in California and Illinois, but
was denied access by ICE, which cited pending litigation at those facilities.

„

Meetings and follow-up correspondence with national immigration officials, including officials from ICE and DHS more
broadly, as well as with local ICE officials and contract staff including during tours of the facilities;

„

Interviews with nearly 30 formerly detained refugees and asylum seekers who were detained in U.S. immigration
facilities before being granted asylum, in addition to the many others we have interviewed through the course of our
work. This included Human Rights First clients as well as individuals assisted by pro bono organizations in other areas
of the country. These refugees were detained at over a dozen different facilities, including the Elizabeth Detention Center, the Otay Detention Facility, the El Paso Processing Center, the McHenry County Jail, the Port Isabel Processing
Center, and the Hampton Roads Regional Jail.

„

Interviews with more than 15 detained refugees, asylum seekers and other immigrants during our visits of detention
facilities.

„

Interviews and correspondence with more than 30 faith-based and other pro bono legal service providers as well as
social service and religious support providers. Human Rights First staff interviewed individuals from around the country,
including organizations operating in Arizona, California, Colorado, Florida, Illinois, Louisiana, Massachusetts, Minnesota, New Jersey, New Mexico, New York, Texas, Virginia, Washington, and Wisconsin.

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„

Seeking statistics and other information from the Executive Office of Immigration Review, Department of Justice, and
ICE, including through a series of Freedom of Information Act requests;

„

Reviewing government reports—including reports by the DHS Office of Inspector General and the Government
Accountability Office.

Abbreviations and Glossary of Terms
CBP

U.S. Customs and Border Protection

CCA

Corrections Corporation of America

DHS

Department of Homeland Security

DOJ

Department of Justice

EOIR

Executive Office for Immigration Review

ESR

Enhanced Supervision/Reporting

FOIA

Freedom of Information Act

ICE

U.S. Immigration and Customs Enforcement

INA

U.S. Immigration and Nationality Act

ISAP

Intensive Supervision Appearance Program

LOP

Legal Orientation Program

UNHCR

United Nations High Commissioner for Refugees

USCIRF

U.S. Commission on International Religious Freedom

USCIS

U.S. Citizenship and Immigration Services

Arriving asylum seeker - An asylum seeker that arrives at a port of entry, such as an airport or border crossing, and
expresses a fear of returning to his or her country of origin. Arriving asylum seekers are considered “arriving aliens,” and,
under 8 CFR §1003.19(h)(2)(i)(B), are precluded by regulation from receiving custody determination hearings in front of an
immigration judge. Arriving asylum seekers are subject to mandatory detention until they pass the “credible fear” screening
interview.
Credible fear interview—An interview conducted by a USCIS Asylum Officer to determine if the asylum applicant has a
credible fear of persecution—defined under the law as a significant possibility of being granted asylum—from his or her
country of origin. If the applicant passes the credible fear interview, he or she is put into removal proceedings and can then
apply for asylum in front of an immigration judge.

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Custody determination hearing—Certain aliens are eligible for a hearing in front of an immigration judge to review ICE’s
custody determination. The immigration judge may order the release of an individual on bond or on his or her own
recognizance. Arriving asylum seekers are not given this opportunity to have a custody decision reviewed by an immigration
judge under certain regulatory provisions.
Expedited removal—The process of expedited removal gives U.S. immigration inspectors and border patrol officers—instead
of immigration judges—the power to order people deported. It applies to people who arrive without travel documents or with
false documents at airports and borders, as well as to those apprehended within 100 miles of the border and 14 days of
their entry. Those who express a fear of return are supposed to be referred for “credible fear” screening interviews. They are
also subject to “mandatory detention.”
ICE Detention Standards—Guidelines issued by ICE that specify conditions for facilities, treatment, and health care in
detention centers. The standards have not been codified as regulations, and are therefore not legally enforceable. A new
set of “performance based” standards—also non-binding—was released in 2008 and will be fully implemented in 2010.
Legal Orientation Program (LOP)—The Executive Office of Immigration Review in the Department of Justice, contracts with
non-profit organizations to carry out Legal Orientation Programs at a limited number of detention locations throughout the
country. The LOP consists of group presentations, individual orientation sessions, self-help legal resources, and assistance
in obtaining pro bono representation.

Profiles of Detention Facilities
The South Texas (Pearsall) Detention Center, Pearsall, Texas
The South Texas Detention Center, more commonly known simply as the Pearsall detention center, is located in Pearsall,
Texas, about an hour south of San Antonio. The 2,300 square foot facility was built in 2005 to hold 1,020 immigration
detainees, but it was quickly expanded to its current capacity of 1,904 beds in response to the launching of the Secure
Border Initiative, a DHS policy that calls for expanded expedited removal and increased detention.359 Human Rights First
visited the facility in May 2008, accompanied by pro bono attorneys and representatives of local faith and community
groups, and met with officials at the facility.
The Facility

Though the GEO Group—the private contractor who contracts with ICE to manage the facility—refers to the Pearsall facility as
a “minimum security”360 facility, the detention center is a prison in just about every sense of the word. Asylum seekers and
other immigrant detainees arrive at the Pearsall detention center handcuffed. The detainees are stripped of their personal
property and receive prison uniforms. Detainees are held in “pods,” some holding as many as 100 detainees, in which they
eat, sleep, and use the showers and toilets separated from the rest of the room only by a low wall. They sleep on narrow
bunk beds, with two or three sets of bunk beds lined up head-to-toe. An officer is present in each pod throughout the day.
Each pod is connected to what the facility considers to be an “outdoor recreation” area—a courtyard surrounded by high
walls with a mesh ceiling. Though not truly “outdoor,” detainees do have fairly steady access to this area during the day. All

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detainees are counted several times a day, in a process that often lasts an hour and requires that all detainees stand by
their beds.
The Pearsall detention center has 36 individual cells that it uses for administrative and disciplinary segregation. Detainees
in segregation are kept in the same small room throughout the day and have a similar recreation area which they can
access one at a time. There are also two additional units in the segregation area for detainees with a history of violent
crimes, which together hold 130 detainees.
Though the ICE detention standards state that the visiting area “shall be appropriately furnished and arranged, and as
comfortable and pleasant as practicable,”361 detainees who receive visits by family members or friends, can only see and
speak to the visitors through a plexiglass partition. Furthermore, family and friends may only visit during designated hours
on Saturdays and Sundays.
The facility holds a range of immigration detainees and asylum seekers—many without criminal records.
Asylum Seekers
During the 2007 fiscal year, approximately 900 asylum seekers were held at the detention center, and in September,
2008, 200 asylum seekers subject to the expedited removal process were detained at the facility. According to an estimate
by ICE, asylum seekers who go through the credible fear process are detained an average of 85 to 90 days, though of
course they acknowledged that some detainees are detained much longer as their cases wind their way through the
appeals process. Local legal service providers reported having asylum clients from all over the world, including Burma, El
Salvador, Eritrea, Ethiopia, Honduras, and Somalia.
According to local ICE officials, asylum seekers who are found to have a credible fear of persecution spend an average of
75 days in detention. At the time ICE provided its responses in September 2008, there were 47 asylum seekers who had
been detained for more than 3 months, 23 who had been detained for over 6 months, and 14 who had been detained for
a year or longer.
Access to Justice and Legal Representation
The Pearsall detention center is located in a remote and sparsely populated area about an hour south of San Antonio, and
two hours south of Austin, where most pro bono representation organizations are located. This clearly limits the legal
representation that is available to detained asylum seekers and other immigrants, as it is difficult for under-resourced
nonprofit organizations to travel to the detention center for client meetings.
Though the facility can hold over 1,900 detainees, it has only three attorney visitation rooms. Local ICE officials stated that
three visitation rooms were deemed sufficient for the original building plan of just over 1,000 detainees, and that there had
been no consideration of increasing the number of legal visitation rooms when the facility was expanded. The facility
appears to be modeled on a criminal facility, and not tailored for immigrant detainees who are in the midst of their
immigration court proceedings. As a result, attorneys report regularly having to wait long periods of time—sometimes several
hours—in order to speak with their clients. Pro bono representatives in the area find themselves limited in how many
detained cases they can take on for representation simply because they cannot travel the distance to Pearsall and meet
with clients.

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An Austin-based organization—American Gateways (formerly the Political Asylum Project of Austin, PAPA)—provides Legal
Orientation Presentations to immigrant detainees at the Pearsall detention center. Though the facility opened in June 2005,
the presentations did not begin until October 2006, well over a year after the facility began detaining asylum seekers and
other immigrants. Now, presentations are given three times a week to detainees in removal proceedings before their first
hearing in immigration court.
According to local ICE officials, only asylum seekers who make an affirmative request for parole are considered for release.
In practice, this means that unrepresented asylum seekers—who probably will only have limited information regarding the
process and face difficulties in gaining access to the documents necessary to make a successful parole request—are
unlikely to be released on paroled. When asked about the eligibility criteria for parole, the ICE Assistant Field Office Director
at the facility listed establishing identity, not being a flight risk, and serving the public interest as the criteria considered in
making a decision. A representative from a local pro bono organization representing asylum seekers at the facility reported
that all parole requests she had made in 2008 had been denied. Asylum seekers who requested protection at U.S. border
entry points are not allowed to have the immigration court review the need for their continued detention—rather they may
only be released through the parole process. Other immigration detainees are allowed to have these immigration court
hearings.
Credible fear interviews—screening interviews that will determine whether they can apply for asylum or be summarily
deported—for asylum seekers at the facility are conducted by video conferencing, and sometimes even by telephone. In
addition, all court hearings—including the final hearing at which an asylum seeker testifies—are held by video conferencing,
with the detainee sitting in an empty courtroom inside the detention center while the judge appears on a television screen.
A recent study demonstrated that asylum seekers who have their immigration court asylum hearings conducted by video are
about half as likely to be granted asylum.362

The Willacy Detention Center, Raymondville, Texas
The Willacy Detention Center—nicknamed ‘Tent City’ and ‘Ritmo’—is the largest immigration jail in the country. It sits in the
southernmost part of Texas. Originally built in 2006 to hold 2,000 detainees, it expanded in the summer of 2008 to a
capacity of 3,000. The facility is operated by the Management & Training Corporation (MTC), a for-profit contractor that
also manages another large immigration detention center located in New Mexico. Human Rights First toured the facility,
accompanied by pro bono attorneys and representatives of local faith and community groups, and spoke with local ICE
officials in May 2008.
The Facility
The detention center consists of ten large tents made of heavy white fabric stretched over metal beams, each holding 200
detainees, and a separate cement building with 1,000 additional beds. The outdoor paths leading to the tents and to the
brick building are dotted with guard posts. The tents are divided into four large dormitories—or ‘pods’—each with 50 beds.
Both the male and female pods are similar in set-up, and detainees eat, sleep, and use the toilet in the same large area.
Detainees sleep on narrow metal bunk beds, and the bathroom area is located behind a short wall, offering little privacy.
There are no divisions between individual toilets and showers, giving detainees no privacy while using the facilities. The

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expansion building—a cement building—consists of 20 pods, each with 50 beds. Again, the bathroom area is located
behind only a short wall, with sinks located directly above the toilets. The new building also contains 43 segregation cells.
When detainees are first brought to the facility, they are placed in large holding cells of 25 to 50 people. They are then
brought to the “intake” area, where they are fingerprinted, photographed, and given prison-like color coded uniforms in
blue, orange, or red. Detainees then undergo the initial medical screening, provided within 12 hours of arrival at the facility.
At the time of Human Rights First’s visit, Division of Immigration Health Services (DIHS) officials stated they had a number
of vacancies in the medical department, including eight vacancies for registered nurses. The detention center had a only
one physician and a psychiatrist who was available only two days a week. ICE declined to answer follow-up questions on
the number of vacancies, including medical vacancies, at the facility in the fall of 2008. In May 2008, around the same
time as Human Rights First’s visit, the Washington Post also reported that the facility had no clinical director or pharmacist.363
At the time of Human Rights First’s visit, the law library was held in a small trailer. Detainees have access to the library on
weekdays for two and a half hours, with male detainees scheduled in the morning and female detainees scheduled for the
afternoon. The small library contained a limited selection of U.S. laws—including some outdated materials—and two
computers.
Asylum Seekers
In May 2008, there were just over 1,700 detainees at the facility (which then had a capacity of 2,000). According to data
provided by local ICE officials, approximately 550 asylum seekers were detained at the facility during fiscal year 2007. This
included individuals from Burma, Colombia, Eritrea, Haiti, Liberia, Pakistan, Somalia, and Uganda.
Asylum seekers who are apprehended along the border may be transported to a number of detention facilities in southern
Texas, including Willacy. Detainees at the Willacy facility who express a fear of return to their country are referred for
credible fear interviews and transferred to the South Texas Detention Center in Pearsall, over 4 hours away. This is generally
the case even for detainees who have been able to obtain local representation while at the Willacy facility.
The majority of detainees at Willacy at the time of Human Rights First’s visit to the facility had been placed in the expedited
removal process, and therefore did not have proceedings pending before an immigration court. Many are being “processed”
for deportation. ICE officials stated that the average stay at the facility was only 18 days for this population. ICE officials
also stated there were a “handful” of individuals who had been ordered removed and had spent more than 180 days in
detention awaiting their removal. In addition, according to local pro bono legal service providers, some asylum seekers are
transferred to Willacy from other facilities after passing their credible fear interviews.
Access to Legal Representation
There are only a handful of pro bono legal organizations in the area. ProBAR—a program staffed by only 2 attorneys that
works with pro bono attorneys to provide representation to asylum seekers—is the only organization that represents asylum
seekers on a pro bono basis, but is also one of the few pro bono organizations that represents detainees at the nearby
1,200-bed Port Isabel facility.

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Though the detention center opened in 2006, Legal Orientation Presentations did not begin at Willacy until November
2008, more than two years later. These presentations are conducted by Texas RioGrande Legal Aid (TRLA), however, due to
funding restrictions, TRLA cannot provide representation to undocumented individuals, including arriving asylum seekers.

Elizabeth Detention Center, Elizabeth, New Jersey
A former warehouse in an industrial district of Elizabeth, New Jersey, now serves as a 300 bed immigration detention
center. The facility first opened in the early 1990’s under the management of Esmor Correctional Services, but has been
operated by the Corrections Corporation of America—a private contractor that manages a number of other immigration
detention facilities across the country—since 1997.
The Facility
The detention center—a former warehouse—holds up to 300 individuals, both men and women. It is operated by Corrections
Corporation of America (CCA), the largest private for-profit company that operates a number of other immigration detention
facilities throughout the country, including in Texas and California.
The detention center holds only non-criminal detainees that are classified as low security. However, when asylum seekers
are detained at nearby airports, they are transported to the detention facility in handcuffs and shackles. Upon arrival,
detainees are stripped of their clothing and property, and issued navy blue uniforms and identity bracelets. They are then
assigned a bed and accompanying “bed number.” The guards use these numbers to refer to the detainees instead of using
their names. Asylum seekers and other detainees are held in large pod areas, where a short wall partitions the sleeping and
eating area from the toilets and showers.
Detainees are counted several times a day, including early in the morning, after lunch, in the afternoon, after dinner, and
one or more times during the night. The only “outdoor” recreation area available is a courtyard surrounded by high walls
with a metal grate as a ceiling. Detainees interviewed by Human Rights First staff reported having the opportunity to access
this area daily on weekdays, but also reported that they must sometimes choose between recreation and having time to
access the law library.
As in many other facilities, asylum seekers and other immigrants detained at the Elizabeth facility do not have access to
contact visits with friends and family members. Instead, if they receive visitors they can only speak with them through a
plexi-glass separator, using a telephone. Three small attorney visitation rooms are available for visits with legal representatives.
Slightly more than a third of individuals detained at the Elizabeth Detention Center are in immigration court proceedings.
The rest have received an order of removal and are either appealing their cases in federal court, trying to reopen their
cases, or awaiting deportation. As of early February 2009, there were 22 individuals who had been detained at Elizabeth
for more than six months.
Asylum Seekers
Arriving asylum seekers who are apprehended at the Newark Liberty International airport in New Jersey or the New York JFK
International airport in New York and are placed into expedited removal proceedings are often brought to the Elizabeth

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Detention Center. In recent years, these asylum seekers have come from a range of places including Eritrea, Guinea, Haiti,
Ivory Coast, Liberia, Somalia, Tibet, Togo, and Zimbabwe. Asylum seekers found to have a credible fear of persecution are
then referred for immigration court proceedings. Human Rights First has provided representation to dozens of asylum
seekers at the detention center over the past several years. Asylum seekers who are not paroled prior to being granted
asylum by the immigration court often spend four months or longer in detention. Those who pursue appeals can spend
many more months or even years detained.
A February 2005 U.S. Commission on International Religious Freedom study reported the parole rate for asylum seekers at
the facility was 3.8 percent.364 In recent months, Human Rights First has noted an increase in the parole rate at this facility.
This shift may be partly the result of the new policy, or a consequence of new local ICE leadership with oversight of the New
Jersey facility, or both. From October 2008 through January 2009, for example, thirteen asylum seekers submitted parole
requests. Of these, 10—or 77 percent—were granted.
Access to Legal Representation
Legal orientation presentations are conducted regularly for newly arrived detainees at the facility by four local nonprofit
organizations, including Human Rights First. The organizations receive a list of newly arrived detainees from ICE, and then
provide all detainees who attend the presentations with information on the immigration and detention systems. They also
take steps to assist detainees to secure pro bono representation, but given limited resources and the lack of government
funding for representation, some immigration detainees do not secure representation. Despite these efforts, some detained
asylum seekers do not receive pro bono representation and cannot afford private representation, and so are left to navigate
their case unrepresented.

Varick Street Federal Detention Facility,New York, New York
The Varick Street Federal Detention Facility is located on the fourth floor of a federal building in downtown Manhattan. The
facility was previously operated as a detention center until it closed its doors soon after 9/11. It reopened as an immigration detention center in February 2008. It is operated under Contract with the Ahtna Technical Services Inc., a for-profit
corporation. Human Rights First toured the facility in November 2008.
The Facility
The detention center can hold up to 250 male detainees, and ICE advised us that the population fluctuates between 200
and 250. The detainees are separated into four “pods” each holding 50-65 men. The bathroom area—with six showers and
several toilets—is separated from the sleeping area, affording at least some privacy. A guard is present in the pods 24
hours a day, and detainees are counted four times a day. Detainees who wish to make phone calls must purchase a calling
card from the commissary.
The Varick Street facility does not have an outdoor recreation area. Rather it only has an indoor gym with windows that do
not open. As a result, ICE officials at the facility informed Human Rights First staff that detainees may not remain at Varick
for long periods of time and are usually transferred to another facility—where “outdoor” recreation is available—after
approximately 30 days. However, Human Rights First has been in contact with several detainees who have spent months at
the Varick Street facility.

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The facility has a small law library with six computers that have legal research software. Detainees may have access to the
law library for one hour each day Monday through Friday, and must sign up in advance.
Some religious services are provided at the facility—Catholic services are performed once a week, and an Imam visits the
facility from time to time. However, ICE officials noted that there were not many volunteers at the facility, and that they did
not have sufficient donations to be able to provide Bibles, Qurans, or other religious texts for free to detainees.
The building also houses its own immigration court with two judges who hear the cases of the individuals detained at the
facility. The judges also preside by video conferencing over the cases of immigration detainees who are transferred to one
of the county jails in New Jersey.
Asylum Seekers
The facility holds both criminal and non-criminal detainees. If arriving asylum seekers are referred for credible fear
interviews they are transferred to the Elizabeth Detention Center in New Jersey. Some other asylum seekers are, however,
detained at the facility, sometimes for several months. Since it has reopened, Human Rights First has responded to
numerous calls from asylum seekers detained at the facility.
Access to Legal Representation
The location of the Varick Street detention center in Manhattan means that individuals detained at the facility have a wider
range of potential legal representation resources available to them. However, asylum seekers and other detainees are not
usually detained at the facility for the duration of their cases. They are generally transferred to one of a number of county
jails in New Jersey.
The Legal Aid Society of New York began a “Know Your Rights” program (independent of the EOIR’s Legal Orientation
Program) at the facility in the fall of 2008. Through this program, law students or volunteer attorneys from local law firms
visit detainees at the facility on a regular basis to provide them with general information and screen cases for possible
representation. In addition, detainees have access to “detention hotlines” through both Legal Aid and Human Rights First.

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Response from Immigration and Customs Enforcement

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Endnotes
1
Throughout the report, quotes from asylum seekers and refugees are drawn from our interviews of detained and formerly detained asylum seekers, unless
otherwise noted. As the majority of these individuals have already been granted asylum by U.S. authorities and have such been recognized as “refugees”
by the U.S. government, we will sometimes use the term “refugee” to refer to them.
2

The total number of asylum seekers was obtained by adding the number of detained asylum seekers for the last 7 months of fiscal year 2003 through
February 2009. For years 2003, 2004, and 2006, the number of detained asylum seekers was obtained from ICE’s section 903 reports under the Haitian
Refugee and Immigration Fairness Act.( ICE, Report to Congress: Detained Asylum Seekers Fiscal Year 2007 (2008); ICE, Report to Congress: Detained
Asylum Seekers Fiscal Year 2006 (2007); ICE, Report to Congress: Detained Asylum Seekers Fiscal Year 2004 (2005); ICE, Report to Congress: Detained
Asylum Seekers Fiscal Year 2003 (2004)). They are 8,137, 11,909, 5,761, and 9,971 respectively. For 2005, 2008, and 2009 (through February), the
number of detained asylum seekers was calculated by using the number of individuals who were found to have credible fear of persecution: 8,469 for
fiscal year 2005, 3,128 for fiscal year 2008, and 1,618 for the first five months of fiscal year 2009 (credible fear statistics provided by U.S. Citizenship
and Immigration Services). No data on the number of affirmative and defensive asylum seekers for these years has been made available by ICE. For each
year, the number of asylum seekers was then multiplied by the average length of detention, and then by the average daily cost of detention. The average
length of 64 days is used for 2003 as provided in the 2003 report (ICE, Report to Congress: Detained Asylum Seekers Fiscal Year 2003 (2004)), and the
average length of 71.5 days is used for remaining years, as was reported in the 2004 report – the last year for which this information is provided (ICE,
Report to Congress: Detained Asylum Seekers Fiscal Year 2003 (2004)). The average costs of detention used are $85 for 2003, $80 for 2004, $85 for
2005, $95 for 2006 and 2007, $97 for 2008, and $95 for 2009.
3

In 2002, the former INS used 20,662 jail-like detention beds (21,262 beds minus 600 beds at the non-jail-like Broward Transitional Center facility).
Department of Justice, “Fiscal Year 2000 Performance Report and Fiscal Year 2002 Performance Plan: Strategic Goal Five.” This number grew to 33,400
immigration detention beds in 2009. James T. Hayes, Jr., Director, Office of Detention and Removal Operations, “Health Services for Detainees in U.S.
Immigrations and Customs Enforcement Custody," before the House Appropriations Committee, Subcommittee on Homeland Security (March 3, 2009).

4

Jaya Ramji Nogales, Andrew Schoenholtz and Phillip Schrag, Refugee Roulette: Disparities in asylum adjudication, 60 Stan. L. Rev. 295, 340 (2007).

5

2,723 out of 4,420 credible fear interviews conducted by video in 2007 – all from the Houston asylum office. Information provided by USCIS, at Asylum
Office Headquarters liaison meeting (June 17, 2008 and March 9, 2009). Frank M. Walsh and Edward M. Walsh, Effective Processing or Assembly-Line
Justice? The Use of Teleconferencing in Asylum Removal Hearings, 22 Geo. Immigr. L.J. 259, 271 (2008).
6
The regulations on parole state that aliens may only be paroled if “the aliens present neither a security risk nor a risk of absconding.” 8 C.F.R. § 212.5.
The most recent ICE guidelines on parole, as well as the previous guidance from 1997 and 1998, also provide that parole may only be considered for
those who are not a flight or security risk. ICE, “Parole of Arriving Aliens Found to Have a ‘Credible Fear’” (Nov. 6, 2007). Also, see, e.g., Matter of Patel,
15 I.&N. Dec. 666 (BIA 1976); Matter of Spiliopoulos, 16 I&N Dec.488 (BIA 1987); Matter of Guerra, 24 I&N Dec. 37 (BIA 2006).
7
Average cost of detention is $95 a day. By contrast, alternatives to detention programs cost $10 to $14 a day. Response of Julie Myers to Senator
Edward Kennedy’s Questions on the Nomination to be Assistant Secretary of ICE (Oct. 3, 2007). Appearance rates for alternatives to detention programs:
ICE Fact Sheet: Alternatives to Detention (March 16, 2009), available at

http://www.ice.gov/pi/news/factsheets/080115alternativestodetention.htm. See also, Vera Institute of Justice, Testing Community Supervision for the
INS: An Evaluation of the Appearance Assistance Program, Volume 1 (Aug. 2000), Esther Ebrahimian, “The Ullin 22: Shelters and Legal Service Providers
Offer Viable Alternatives to Detention,” Detention Watch Network News, (Aug./Sept. 2000).
8
Profiles are drawn from interviews Human Rights First conducted with detained and formerly detained refugees and pro bono attorneys in 2008 and
2009, unless otherwise noted.
9

For additional information, please refer to the “Methodology” section in the full report.

10

CRS Report for Congress, Immigration-Related Detention: Current Legislative Issues (April 28, 2004); Testimony of James T. Hayes, Jr., Director, Office
of Detention and Removal Operations, “Hearing on Health Services for Detainees in ICE Custody,” before the House Appropriations Committee
Subcommittee on Homeland Security (March 3, 2009); Department of Homeland Security, “DHS Announces $12.4 Billion for Border Security &
Immigration Enforcement” (Jan. 31, 2008), available at http://www.dhs.gov/xnews/releases/pr_1201803940204.shtm.

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11

See explanation of calculation of “48,000” number in endnote 4.

12

See endnote 3.

13

The U.S. Commission on International Religious Freedom was created by Congress through the International Religious Freedom Act of 1998 to provide
data and independent policy recommendations to the President and Congress on religious repression and intolerance. The members of the Commission
are experts in the fields relevant to the issue of international religious freedom and are appointed by the President and Congressional leaders from both
parties. See www.uscirf.gov for additional information.
14

U.S. Commission on International Religious Freedom, Report on Asylum Seekers in Expedited Removal, Vol. I, p. 68; UNHCR, Guidelines on Detention of

Asylum-Seekers (Feb. 1999).
15
ICE opened or began using the following detention facilities following the Commission’s report: South Texas Detention Center (1,904 beds); Willacy
Detention Center (3,000 beds); Stewart Detention Center (1,524 beds); T. Don Hutto Family Detention Center (512 beds); Bristol Detention Center (128
beds); LaSalle Detention Center (1,160 beds); Otero County Processing Center (1,088 beds).
16
See, e.g. GAO, “Alien Detention Standards: Observations on the Adherence to ICE’s Medical Standards in Detention Facilities,” GAO-08-869T (June
2008); Dana Priest and Amy Goldstein, Washington Post, May 11, 2008; Nina Bernstein, “Few Details on Immigrants Who Die in Custody,” New York
Times (May 5, 2008); Department of Homeland Security, Office of Inspector General, Treatment of Immigration Detainees Housed at Immigration and
Customs Enforcement Facilities,” December 2006. Information on openings available at: Department of Homeland Security Division of Immigration Health
Services, “Job Listings”, (2009), available at https://jobsdihs.icims.com/jobs/search?ss=1&searchKeyword=&searchLocation=&searchCategory=&searchRadius=5&searchZip=. Vacancy rate from testimony of
Julie L. Myers, Assistant Secretary of U.S. Immigration and Customs Enforcement (ICE), “Hearing on Problems with Immigration Detainee Medical Care”
(June 4, 2008). On detainee deaths, see, Testimony of Dora Schriro, “Hearing on Medical Care and Treatment of Immigration Detainees and Deaths in
DRO Custody” (March 3, 2009); see also Dana Priest and Amy Goldstein, “Suicides Point to Gaps in Treatment” (May 13, 2008). On Failure to use
interpreters, see, Dana Priest and Amy Goldstein, “Suicides Point to Gaps in Treatment” (May 13, 2008); see also Testimony of ‘Asfaw’, Refugee from
Ethiopia who was given the wring medication without the use of an interpreter, “Hearing on Problems with Immigration Detainee Medical Care,” (June 4,
2008).
17
Testimony of Ann Schofield Baker, Pro Bono Attorney for Amina Mudey, McKool Smith, “Hearing on Problems with Immigration Detainee Medical Care,”
before House Judiciary Committee’s Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law (June 4, 2008).
18

Quote as reported to Human Rights First by representative of legal service provider in Arizona.

19

See sections of report titled “Penal Detention Inappropriate Under International Standards,” and “Arbitrary Detention Under International Law.”

20

International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, (entered into force March 23, 1976). Article 9(4) of the International Covenant
on Civil and Political Rights (ICCPR), to which the U.S. is a party, provides that all detained individuals shall be entitled to have the lawfulness of their
detention reviewed by a court. The lack of such review renders the detention of arriving asylum seekers arbitrary. See also Human Rights First, Background
Briefing Note: The Detention of Asylum Seekers in the United States: Arbitrary Under the ICCPR (Jan. 2007). The UNHCR Detention Guidelines call for
procedural guarantees, when a decision to detain is made, including “automatic review before a judicial or administrative body independent of the
detaining authorities.” United Nations High Commissioner for Refugees (UNHCR), Revised Guidelines on Applicable Criteria and Standards Relating to the
Detention of Asylum-Seekers (Feb. 1999); See also UNHCR, Executive Committee, Conclusion on Detention of Refugees and Asylum Seekers, No. 44
(1986).
21
8 CFR §1003.19 (h)(2)(i)(B). The majority of “arriving aliens” processed under expedited removal are not referred for credible fear interviews and are
summarily removed.
22
USCIRF, Asylum Seekers in Expedited Removal, Vol. II, p. 333; Letter from Stewart Baker, Assistant Secretary of Policy, DHS, to Felice Gaer, Chair of the
U.S. Commission on International and Religious Freedom (Nov. 28, 2008) citing 107 number; The number of arriving asylum seekers who were found to
have credible fear in November 2007 through June 2008 was provided by USCIS.
23

ICE, “Parole of Arriving Aliens Found to Have a ‘Credible Fear’” (Nov. 6, 2007).

24

Profiles are drawn from interviews Human Rights First conducted with formerly detained refugees and legal service providers, including those conducted
in 2008 and 2009 in preparation for this report.

25

Physicians for Human Rights and the Bellevue/NYU Program for Survivors of Torture, From Persecution to Prison: The Health Consequences of Detention

for Asylum Seekers (June 2003).
26
USCIRF, Asylum Seekers in Expedited Removal, Vol. II, p. 239 and 409.
27
Gomez-Zuluaga v. AG of the United States, 527 F.3d 330, 339 (3rd Cir. 2008).

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28

Response of Julie Myers to Senator Edward Kennedy’s Questions on the Nomination to be Assistant Secretary of ICE (Oct. 3, 2007).

29

Leslie Berestein, “Detention Dollars: Tougher Immigration Laws Turn the Ailing Private Prison Sector Into a Revenue Maker,” The San Diego Union-

Tribune (May 4, 2008); ICE, “Fact Sheet: Fiscal Year 2009” (Oct. 23, 2008), available at

http://www.ice.gov/doclib/pi/news/factsheets/2009budgetfactsheet.doc. For calculation of overall cost and information on number of asylum seekers
detained, see above endnote 4. Also see explanation in endnote 2 about 2007 statistics.

30
Information on length of detention of the cases cited was obtained during Human Rights First interviews with formerly detained asylum seekers. Number
of asylum seekers at the South Texas Detention Center and the and cost of detention at the New Jersey facility were provided by ICE. Cost of detention for
the El Paso facility was calculated based on the average cost of detention for ICE Service Processing Centers ($119.28): Leslie Berestein, “Detention
Dollars: Tougher Immigration Laws Turn the Ailing Private Prison Sector Into a Revenue Maker,” The San Diego Union-Tribune (May 4, 2008). Cost of
detention for the California facility: Anna Gorman, “Cities and Counties Rely on U.S. Immigrant Detention Fees,” Los Angeles Times (March 17, 2009).
31
EOIR, “Fact Sheet: EOIR’s Video Conferencing Initiative” (Sept. 21, 2004); GAO, “Executive Office for Immigration Review: Caseload Performance
Reporting Needs Improvement,” GAO-06-771 (Aug. 2006), p. 18; Frank M. Walsh and Edward M. Walsh, Effective Processing or Assembly-Line Justice?
The Use of Teleconferencing in Asylum Removal Hearings, 22 Geo. Immigr. L.J. 259, 271 (2008).
32
2,723 out of 4,420 credible fear interviews conducted by video in 2007 – all from the Houston asylum office. Information provided by USCIS, at Asylum
Office Headquarters liaison meeting (June 17, 2008 and March 9, 2009). Information on credible fear interview pass rates also provided by USCIS.
33

These provisions are located primarily at 8 C.F.R. § 1003.19 and § 212.5, as well as § 208.30 and § 235.3.

34

See, e.g., Florida Immigrant Advocacy Center, Dying for Decent Care: Bad Medicine in Immigration Custody (Feb. 2009); Human Rights Watch, Detained
and Dismissed: Women’s Struggles to Obtain Health Care in United States Immigration Detention (Feb. 2009); Amnesty International, Jailed Without
Justice (March 2009); Physicians for Human Rights and The Bellevue/NYU Program for Survivors of Torture, From Persecution to Prison: The Health
Consequences of Detention for Asylum Seekers (June 2003).
35

U.N. Convention Relating to the Status of Refugees, 189 U.N.T.S. 137 (entered into force July 28, 1951); U.N. Protocol Relating to the Status of
Refugees, 606 U.N.T.S. 268 (entered into force October 4, 1967). The United States acceded to the Refugee protocol in 1968 and incorporated its
provisions into domestic law through the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat 102 (1980). As the Supreme Court has confirmed, a primary
purpose of Congress in passing the Refugee Act “was to bring United States refugee law into conformance with the 1967 United Nations Protocol.” INS v.
Cardoza-Fonseca, 480 U.S. 421, 426 (1987); see also INS v. Stevic, 467 U.S. 407, 416-24 (1984) providing a history of the incorporation of the
Refugee Convention standards into U.S. law through the Refugee Protocol and the Refugee Act of 1980.
36
Statistics on affirmative asylum provided by USCIS Asylum Office; grant rate calculated by taking approvals out of cases adjudicated (approved, denied,
or referred). Statistics on immigration court from U.S. Department of Justice, Executive Office for Immigration Review, “FY 2007 Statistical Year Book”
(Falls Church: Office of Legislative and Public Affairs, 2008), p. K2; grant rate calculated by taking grants out of cases adjudicated (grants and denials).
37
For fiscal years 1975 through 2005, see Refugee Council USA, “U.S. Refugee Admission Program for Fiscal Year 2006 and 2007: the Impact of the
Material Support Bar—Recommendations of Refugee Council USA,” p. A-7; for fiscal years 2006 through 2009, see U.S. Department of State, “Refugee
Processing Center” (2009), available at http://www.wrapsnet.org/Reports/AdmissionsArrivals/tabid/211/language/en-US/Default.aspx.
38

Homeland Security Act of 2002, Section 101, available at http://www.whitehouse.gov/deptofhomeland/bill/.

39

In November 2003, Human Rights First began urging DHS Secretary Thomas Ridge to create a high level of refugee protection in his office to ensure the
proper resolution of refugee issues that cut across DHS bureaus. Human Rights First Letter to Thomas J. Ridge (Nov. 5, 2003), available at
http://www.humanrightsfirst.org/asylum/ridge_letter110503.pdf.
40

USCIRF, Asylum Seekers in Expedited Removal, Vol. I, p. 64-65.

USCIRF, Asylum Seekers in Expedited Removal, Vol. I, p. 51, 54, Vol. II, p. 14, 20; See also Eric Schmitt, “When Asylum Requests are Overlooked.” The
New York Times, August 15, 2001, at A6; John Moreno Gonzales, “Amityville Woman Seeks $8 Million in JFK Mix-Up,” Newsday, July 12, 2000.
42
DHS, Annual Report: Immigration Enforcement Actions: 2007 (Dec. 2008), available at
41

http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement_ar_07.pdf.

43
The U.S. Commission on International Religious Freedom recommended that DHS stop placing asylum seekers with valid visas into expedited removal
and mandatory detention, but DHS did not implement this recommendation. USCIRF, Asylum Seekers in Expedited Removal, p. 69; Letter from Stewart
Baker, Assistant Secretary of Policy DHS, to Felice Gaer, Chair of the U.S. Commission on International and Religious Freedom (Nov. 28, 2008).
44

Testimony of Edwidge Danticat, before the House Judiciary Committee Subcommittee on Immigration, Citizenship, Refugees, Border Security, and
International Law, “Hearing on Detention and Removal: Immigration Detainee Medical Care” (Oct. 4, 2007); Amy Goldstein and Dana Priest, “System of
Neglect,” Washington Post (May 11, 2008).

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45
Letter from Stewart Baker, Assistant Secretary of Policy DHS, to Felice Gaer, Chair of the U.S. Commission on International and Religious Freedom (Nov.
28, 2008).
46

USCIRF, Asylum Seekers in Expedited Removal, p. 173.

47

Information provided by USCIS Asylum Office.

48

USCIRF, Asylum Seekers in Expedited Removal, p. 168.

49

This rate is calculated as number of cases in which credible fear was found out of all credible fear decisions made (for 2008, credible fear was found in
3,128 cases out of 5,290 decisions made). Information provided by USCIS Asylum Office.
50

In fiscal year 2007, for example, the Los Angeles asylum office had a pass rate of 54%; Statistics provided by USCIS Asylum Office.

51

According to numbers received from the Asylum Office Headquarters, 8,469 individuals were found to have credible fear in the fiscal year 2005, 1,311
in fiscal year 2006, 3,182 in fiscal year 2007, 3,128 in fiscal year 2008, and 1,618 in the first five months of fiscal year 2009. According to government
statistics included in USCIRF, Asylum Seekers in Expedited Removal, 7,241 individuals were found to have credible fear in fiscal year 2004. Because
asylum seekers subject to the credible fear process are mandatorily detained, presumably all of these individuals were detained for at least some time.
52

For example, according to an Immigration and Customs Enforcement report to Congress, in fiscal year 2004, 4,758 defensive asylum seekers and 165
affirmative asylum seekers were detained, and in 2006, 5,017 defensive asylum seekers and 487 affirmative asylum seekers were detained. ICE, Report
to Congress: Detained Asylum Seekers Fiscal Year 2004 (2005); ICE, Report to Congress: Detained Asylum Seekers Fiscal Year 2006 (2007).

53
According to ICE reports, 190 out of 56,120 affirmative asylum seekers were detained in fiscal year 2003 (0.34%); 165 out of 36,823 in fiscal year
2004 (0.45%), and 487 out of 22,983 in fiscal year 2006 (2.12%), and 254 of 24,908 in fiscal year 2007 (1.1%). Similar data has not been provided
for fiscal years 2005, 2007, or 2008. ICE, Report to Congress: Detained Asylum Seekers Fiscal Year 2003 (2004); ICE, Report to Congress: Detained
Asylum Seekers Fiscal Year 2004 (2005); ICE, Report to Congress: Detained Asylum Seekers Fiscal Year 2006 (2007); ICE, Report to Congress: Detained

Asylum Seekers Fiscal Year 2007 (2008).
54

Haitian Refugee Immigration Fairness Act of 1998, §§ 903-904, Pub. L. No. 105-277, 112 Stat. 2681-541 (codified at 8 U.S.C. §§ 1377-1378)
(hereinafter Haitian Refugee Immigration Fairness Act).

55

The total number of asylum seekers was obtained by adding the number of detained asylum seekers for the last 7 months of fiscal year 2003 through
February 2009. For years 2003, 2004, and 2006, the number of detained asylum seekers was obtained from ICE’s section 903 reports under the Haitian
Refugee and Immigration Fairness Act.( ICE, Report to Congress: Detained Asylum Seekers Fiscal Year 2007 (2008); ICE, Report to Congress: Detained
Asylum Seekers Fiscal Year 2006 (2007); ICE, Report to Congress: Detained Asylum Seekers Fiscal Year 2004 (2005); ICE, Report to Congress: Detained
Asylum Seekers Fiscal Year 2003 (2004)). They are 8,137, 11,909, 5,761, and 9,971 respectively. For 2005, 2008, and 2009 (through February), the
number of detained asylum seekers was calculated by using the number of individuals who were found to have credible fear of persecution: 8,469 for
fiscal year 2005, 3,128 for fiscal year 2008, and 1,618 for the first five months of fiscal year 2009 (credible fear statistics provided by U.S. Citizenship
and Immigration Services). No data on the number of affirmative and defensive asylum seekers for these years has been made available by ICE.
56
The regulations on parole state that aliens may only be paroled if “the aliens present neither a security risk nor a risk of absconding.” 8 C.F.R. § 212.5.
The most recent ICE guidelines on parole, as well as the previous guidance from 1997 and 1998, also provide that parole may only be considered for
those who are not a flight or security risk. ICE, “Parole of Arriving Aliens Found to Have a ‘Credible Fear’” (Nov. 6, 2007). Also , see, e.g., Matter of Partel,
15 I&N. Dec. 666 (BIA 1976); Matter of Spiliopoulos, 16 I&N Dec. 488 (BIA 1987); Matter of Guerra, 24 I&N Dec. 37 (BIA 2006).
57
The average length of 71.5 was reported in 2004 – the last year for which this information was provided by ICE. ICE, Report to Congress: Detained
Asylum Seekers Fiscal Year 2003 (2004).
58
USCIRF, Expedited Removal Study Report Card: 2 Years Later (Feb. 8, 2007), p. 5.
59
U.S. Government Accountability Office (GAO), DHS: Organizational Structure and Resources for Providing Health Care to Immigrant Detainees, GAO-09-

308R (Feb. 23, 2009), p.14.

60
In its 2005 study on the detention of asylum seekers, the U.S. Commission on International Religious Freedom identified a variety of “attributes of
confinement” that are characteristically found in jail settings. Among these are: housing unit counts; strip or other invasive searches; fixed guard stations
in housing units; constant sight and sound surveillance; use of physical restraints; use of isolation; restriction on movements outside of housing unit;
escorts required when detainees move throughout facility; lack of privacy when using toilets and showers; inability to wear own clothing; restricted access
to law library; inability to have contact visits. USCIRF, Asylum Seekers in Expedited Removal, Vol. II, p. 208-215.
61

GAO, DHS: Organizational Structure (2009), p. 2.

62

Id., p.14.

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63

USCIRF, Asylum Seekers in Expedited Removal, Vol. I, p. 68.

64

Letter from Felice Gaer, Chair of USCIRF to Stewart Baker, Assistant Secretary for Policy DHS (Jan. 8, 2009).

65

See chart below for list of new detention facilities opened in recent years.

66

In November 2008, Human Rights First staff visited two county jails in rural Virginia where asylum seekers and other immigration detainees are held.
During the visit, HRF staff had an opportunity to meet with facility staff, an ICE representative, and several detainees.
67

ICE, Report to Congress: Detained Asylum Seekers Fiscal Year 2006 (2007).

68

Human Rights First interviewed scores of detained asylum seekers who have been handcuffed and shackled. For example, during a July 2007 tour of the
Elizabeth Detention Center organized by Human Rights First and the American Friends Service Committee, ICE officials stated that detainees are
handcuffed during initial detention and during any transfers. Asylum seekers may be handcuffed and shackled by Customs & Border Protection officers, if
detained in a border area, by ICE officers, or by contractors hired by ICE to transport detainees to and from facilities.
69

USCIRF, Asylum Seekers in Expedited Removal, Vol. II, p. 186.

Seattle University School of Law and OneAmerica, Voices From Detention: A Report on Human Rights Violations at the Northwest Detention Center (June
2008), p. 7, 47.

70

71

Over the years, Human Rights First has interviewed hundreds of asylum seekers who reported being handcuffed at the JFK and Newark airports and
while transported to local detention facilities, including several interviewed for this report.

72

Correspondence between Detention Watch Network members (Nov. 11, 2008).

73

ICE Detention Standard, “Use of Force,” (Sept. 20, 2000); see also, ICE/DRO Detention Standard, “Use of Force and Restraints” (Dec. 2008).

74

USCIRF, Asylum Seekers in Expedited Removal, Vol. II, p. 186.

75

Physicians for Human Rights, From Persecution to Prison (June 2003) p. 191.

76

USCIRF, Asylum Seekers in Expedited Removal, Vol. II, p. 185.

77

Interview with an asylum seeker detained at the Elizabeth Detention Center for four months (August 2008).

78

USCIRF, Asylum Seekers in Expedited Removal, Vol. II, p. 185.

79

Seattle University School of Law, Voices from Detention, p. 56.

80

Senator Menendez of New Jersey and Lutheran Bishop Riley visited the facility in July 2008.

Tricia Lynn Silva, “New detention center sign of Pearsall’s biz-friendly outreach.” San Antonio Business Journal, March 5, 2004, available at
http://www.bizjournals.com/sanantonio/stories/2004/03/08/story5.html.
81

82
During a tour of the facility in November 2008, Human Rights First staff was informed that the recreation area available at this facility is in fact not
considered outdoor, and that this creates limitations on how long detainees may remain at the facility. Human Rights First staff, has however, spoken to a
number of asylum seekers and other detainees who have spent several months at this facility.

ICE Detention Standard, “Recreation” (Sep. 20, 2000), available at http://www.ice.gov/doclib/partners/dro/opsmanual/recreat.pdf. The new
“Performance Based Standards,” which were released in September 2008 and are in the process of being implemented, state that “It is expected that
every ICE/DRO detainee will be placed in a facility that provides indoor and outdoor recreation. However, in exceptional circumstances, a facility lacking
outdoor recreation or any recreation area may be used to provide short-term housing;” and provides—similarly to the Detention Standards—that detainees
held at facilities without an outdoor recreation space may request a transfer after six months. It is also worth noting that the new standards state that all
new contracts with detention centers or local facilities “shall stipulate that ICE/DRO detainees have access to an outdoor recreation area.” ICE/DRO
Detention Standard, “Recreation” (Dec. 2, 2008), available at http://www.ice.gov/doclib/PBNDS/pdf/recreation.pdf.

83

84

Women’s Commission for Refugee Women and Children and the Lutheran Immigration and Refugee Service, Locking Up Family Values: The Detention of

Immigrant Families (Feb. 2007), p. 27.
85

Visit to the detention center by Human Rights First staff (May 2008); Conversations with local legal service providers (May 2008).

86

See ICE, “Immigration Detention Facilities,” at http://www.ice.gov/pi/dro/facilities.htm.

87

USCIRF, Asylum Seekers in Expedited Removal, Vol. I, p 60.

88

USCIRF, Asylum Seekers in Expedited Removal, Vol. I, p. 69.

USCIRF, Report Card; see also USCIRF, Asylum Seekers in Expedited Removal. The new “Performance Based Standards” that were issued by ICE in
September 2008 continue to rely on correctional standards. In fact, the standards cite to the American Correctional Association standards for adult
89

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facilities as a reference. The Commission, in a January 2009 letter to DHS, wrote that they “do not believe that these [Performance Based] standards
address our concerns or recommendations…[they] rely on correctional standards, which are inappropriate for asylum seekers.” (USCIRF, “USCIRF
disappointed that DHS action on expedited removal process falls short” (Jan. 9, 2009), available at
http://www.uscirf.gov/index.php?option=com_content&task=view&id=2340&Itemid=126).
90

USCIRF, Asylum Seekers in Expedited Removal, Vol. II, p. 189; USCIRF, Report Card, p. 5.

91

USCIRF, Asylum Seekers in Expedited Removal, Vol. I, p. 68.

92

Id., Vol. II, p. 200 and Vol. I, p. 61.

USCIRF, Report Card, p. 5.
See, e.g. Florida Immigrant Advocacy Center, Dying for Decent Care: Bad Medicine in Immigration Custody (March 2009), available at
http://www.fiacfla.org/reports/DyingForDecentCare.pdf. See also Luis Perez, “Detained Immigrants in Florida complain they’re not getting medical care,”
South Florida Sun Sentinel (March 17, 2009) available at http://www.sun-sentinel.com/news/local/broward/sfl93
94

flbdetainhealth0317pnmar17,0,1027089.story.
95

DHS, “DHS Announces $12.4 Billion for Border Security and Immigration Enforcement” (Jan. 31, 2008).

Fernando Del Valle, “Willacy to Expand Detention Center,” Valley Morning Star (July 25, 2007), available at
http://www.valleymorningstar.com/news/detention_6898___article.html/center_barnhart.html.
96

97

Detention Watch Network, “Stewart Detention Center” (Dec. 8, 2008) at http://www.detentionwatchnetwork.org/stewart.

ICE, The ICE T. Don Hutto Family Residential Facility: Maintaining Family Unity, Enforcing Immigration Laws (April 2007), available at
http://www.ice.gov/pi/news/factsheets/huttofactsheet.htm.
98

99

GEO Group, Northwest Detention Center, available at http://www.thegeogroupinc.com/northamerica.asp?fid=105.

Aaron Nicodemus, “New Dartmouth jail facility to house illegal immigrants,” The Standard-Times (April 2, 2007), available at
http://www.southcoasttoday.com/apps/pbcs.dll/article?AID=/20070402/NEWS/704020337/-1/SPECIAL21.
100

101

GEO Group, LaSalle Detention Facility, available at http://www.thegeogroupinc.com/northamerica.asp?fid=120.

Bryan Gibel, “Immigration advocates say prison expansion will only compound problems,” The Santa-Fe New Mexican (Mar. 17, 2008), available at
http://www.santafenewmexican.com/SantaFeNorthernNM/otero-county-More-detainees--more-complaints.
102

Josh White and Nick Miroff, “The Profit of Detention,” Washington Post, (Oct. 5, 2008), available at http://www.washingtonpost.com/wpdyn/content/article/2008/10/04/AR2008100402434.html; see also Tim Craig, “Immigrant Detention Centre Propsed in Va.,” Washington Post (Sep.
26, 2007), available at http://www.washingtonpost.com/wp-dyn/content/article/2007/09/25/AR2007092502190.html; Jamie C. Ruff, “Immigrant
Holding Facility to be Built in Va.,” Richmond Times-Dispatch Online (inrich.com) (Sep. 29, 2008), available at http://www.inrich.com/cva/ric/news.apx.content-articles-RTD-2008-09-29-0133.html.
103

Anna Gorman, “Immigration Detention Center Considered for L.A. Area,” Los Angeles Times (Feb. 3, 2009), available at
http://www.latimes.com/news/printedition/california/la-me-ladetain3-2009feb03,0,3449452.story.
104

“Area’s 2nd immigration holding centre proposed in Mustang Ridge,” KLBJ News Radio Newsroom, (Mar. 21, 2008), available at
http://www.590klbj.com/News/Story.aspx?ID=87343.
105

106

Adam Goldstein, “Expansion Approved for Private Detention Center,” The Aurora Sentinel (Apr. 16, 2008).

107

GEO Group, “The GEO Group, Inc. Signs Contract with Maverick County, Texas for the Development and Operation of a 654-Bed Detention Facility,” (

See DHS Solicitation for Contractor-Owned, Contractor-Operated Detention Facility of 1,575 beds, available at
https://www.fbo.gov/index?s=opportunity&mode=form&id=8bd8a9dc40d4213623206d94d21777e4&tab=core&_cview=0),
108

Stephen Gurr, “Main Street jail renovations waiting on local, federal agreement,” Gainesville Times.com (Mar. 4, 2009), available at
http://www.gainesvilletimes.com/news/archive/15685/; see also Associated Press, “Old Hall jail getting upgrade, new name,” The Atlanta JournalConstitution Online, (Dec. 16, 2008), available at http://www.ajc.com/services/content/printedition/2008/12/16/halljail.html?cxntlid=inform_sr;
Associated Press, “Corrections Corp to manage Georgia facility” (March 9, 2009), available at
http://www.forbes.com/feeds/ap/2009/03/09/ap6143796.html.
109

Department of Homeland Security, “DHS Announces $12.4 Billion for Border Security & Immigration Enforcement” (Jan. 31, 2008), available at
http://www.dhs.gov/xnews/releases/pr_1201803940204.shtm.

110

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111

Testimony of Dora Schriro, Special Advisor on Detention and Removal Operations, before the House Appropriations Committee Subcommittee on
Homeland Security, “Hearing on Medical Care and Treatment of Immigration Detainees and Deaths in DRO Custody” (March 3, 2009).

112

See chart below outlining pending proposals for additional detention bed space.

113

Information obtained during Human Rights First tour of the facility (May 2008).

114

Correspondence between pro bono attorneys who represent clients at the facility and Human Rights First (Jan. 2009).

115

Correspondence between Willacy Detention Center and Human Rights First (Sept. 2008).

116

CCA Source, “CCA Opens Stewart Detention Center,” available at http://www.ccasource.com/story.cfm?id=307.

117

Conversation with representative from Catholic Charities of Atlanta and the American Civil Liberties Union of Georgia (Feb. 2009).

118

During the summer and fall of 2008, a handful of detainees at the Elizabeth Detention Center in New Jersey have told Human Rights First staff
conducting legal orientation presentations at the facility that they were originally detained in New Jersey and then transferred to Georgia or a jail in
Alabama, where they spent several weeks or even months before being returned to detention in New Jersey. Local ICE officers in New Jersey have
responded to inquiries from attorneys and family members of transferred detainees by explaining that the Elizabeth Detention Center does not have the
capacity to detain long-term detainees, and that these detainees are transferred elsewhere to make room for new arrivals. Detainees then seem to be
returned to New Jersey in preparation for their removal. (Conversations with family members and attorneys).
119

Conversation with representative from Catholic Charities of Atlanta (Feb. 2009).

120

Seattle University School of Law, Voices from Detention, p. 6 & 51.

121

Id., p. 57.

122

Id., p. 36.

123

GAO, DHS: Organizational Structure, p.14.

124

U.S. Department of Justice, Bureau of Justice Statistics, “Table 6.61.2006, Detainees under Bureau of Immigration and Customs Enforcement (ICE)
jurisdiction,” Sourcebook of Criminal Justice Statistics Online, available at http://www.albany.edu/sourcebook/pdf/t6612006.pdf.
Justice Policy Institute, Jailing Communities: The impact of jail expansion and effective public safety strategies (Washington D.C: Justice Policy Institute,
April 2008), available at http://www.justicepolicy.org/images/upload/08-04_REP_JailingCommunities_AC.pdf; GAO, DHS: Organizational Structure,
2009, p. 15.
125

126
Correspondence between pro bono attorneys from Advocates for Human Rights in Minnesota and the National Immigrant Justice Center in Chicago,
Illinois, and Human Rights First (March 2009).
127
House Committee on Appropriations, Department of Homeland Security appropriations bill, 2006: report together with additional views (to accompany
H.R. 2360), 109th Cong., 1st Session, 2005, H. Rep. 109-79. See also Women’s Refugee Commission, Locking Up Family Values, p. 5-6.

ICE, “The ICE T.Don Hutto Family Residential Facility: maintaining family unity, enforcing immigration laws,” (Apr. 2007), available at
http://www.ice.gov/pi/news/factsheets/huttofactsheet.htm.
128

According to ICE’s Report to Congress: Detained Asylum Seekers Fiscal Year 2006 (2007), in fiscal year 2006, 105 asylum seekers were detained at
the Hutto facility. An additional 61 were detained at the Berks County family detention center. However, see Human Rights First’s concerns on these
statistics in prior endnote. See also Women’s Commission, Locking Up Family Values: “Although the majority of the families are nationals of Central or
South American countries, a review of the total population statistics indicated that there were also detainees from Djibouti, Ethiopia, Greece, Haiti,
Indonesia, Iraq, Jordan, Kuwait, Romania an Somalia. Many of these families had been apprehended along the U.S.-Mexico border and are in expedited
removal proceedings, however there were also families who were apprehended in the interior as well as many asylum seekers.” p. 11.

129

130

Women’s Refugee Commission, Locking Up Family Values, p. 16-17.

See, e.g. Ralph Blumenthal, “U.S. Gives Tour of Family Detention Center That Critics Liken to a Prison,” New York Times, Feb. 19, 2007, available at
http://www.nytimes.com/2007/02/10/us/10detain.html?_r=2/; Margaret Talbot, “The Lost children: What Do Tougher Detention Policies Mean for
Illegal Immigrant Families?,” The New Yorker (March 3, 2008).
131

132

Women’s Refugee Commission, Locking Up Family Values, p. 25.

American Civil Liberties Union, “ACLU Challenges Prison-Like Conditions at Hutto Detention Center,” available at
http://www.aclu.org/immigrants/detention/hutto.html; Correspondence between representatives of the Women’s Refugee Commission and Human Rights
First (April 2009).
133

134

Correspondence between Barbara Hines, Clinical Professor of Law, University of Texas School of Law and Human Rights First (Apr. 2009).

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135

Women’s Refugee Commission, Locking Up Family Values, p. 17.

UNHCR, Refugee Children: Guidelines on Protection and Care (Geneva: UNHCR, 1994), available at http://www.unhcr.org/cgibin/texis/vtx/protect/opendoc.pdf?tbl=PROTECTION&id=3b84c6c67.
136

137
The August 2007 settlement led to the release of several families, including dozens of children, and imposed a requirement on ICE to conduct a review
of a family’s detention within 30 days of the initial detention. (Settlement Agreement, In re Hutto Family Detention Centre, Case No. A-07-CA-164-SS, U.S.
District Court Western District of Texas (August 26, 2007), available at http://www.aclutx.org/files/Hutto%20Settlement%20Agreement.pdf.)
138
National Immigrant Justice Center, “ICE Accepts NGO Recommendations on Family Detention Standards; But More Progress Is Needed” (Jan. 18,
2008), available at http://www.immigrantjustice.org/index.php?option=com_content&task=view&id=300&Itemid=93.
139
Women’s Refugee Commission, “New Family Detention Standards Incorporate Women’s Commission’s Recommendations on treatment of Immigrant
and Refugee Families: Women’s Commission Calls Standards a ‘step in the right direction” (Jan. 11, 2008), available at
http://www.womenscommission.org/pdf/pr_famdeten1.pdf. See also National Immigrant Justice Center, “ICE Accepts NGO Recommendations;” Women’s
Commission for Refugee Women and Children, “The Women’s Commission Calls on ICE to Follow Congressional Directives on Family Detention” (June 12,
2008), available at http://www.womenscommission.org/pdf/statementRFP.pdf.

Anna Gorman, “Immigration Agency Plans New Family Detention Centers,” Los Angeles Times, May 18, 2008, available at
http://articles.latimes.com/2008/may/18/nation/na-detention18.
140

141
Department of Homeland Security advertising on Federal Business Opportunities.gov, “This Pre-solicitation is for non-criminal family residential facility”
(Apr. 1, 2008), available at
https://www.fbo.gov/index?s=opportunity&mode=form&id=5045f25a22246a27f29e75d279ba9762&tab=core&_cview=1&cck=1&au=&ck.
142

Women’s Refugee Commission, “New Family Detention Standards.” See also National Immigrant Justice Center, “ICE Accepts NGO Recommendations.”

143

U.N. Convention Relating to the Status of Refugees (entered into force July 28, 1951); U.N. Protocol Relating to the Status of Refugees (entered into
force October 4, 1967).
144

UNHCR Executive Committee, Conclusion No. 44 (1986).

UNHCR, Guidelines on Detention of Asylum-Seekers (Feb. 1999). The Guidelines urge that exceptions to this general rule (protection of national
security and public order, verification of identity, identification of basis of claim in a preliminary interview, destruction of documents/use of fraudulent
documents to mislead) be clearly prescribed by national law in conformity with principles of international law.
145

146
Arriving asylum seekers are subject to “mandatory detention” until they are found to have a credible fear of persecution, at which point they may be
considered for release on parole. See, 8 C.F.R. § 235.3(b)(9).
147

8 C.F.R. § 212.5; 8 C.F.R. 1008.19

148

In the last six years, U.S. immigration authorities have detained asylum seekers who arrive on valid passports and visas.

149

8 C.F.R. § 212.5; ICE, “Parole of Arriving Aliens Found to Have a ‘Credible Fear’” (Nov. 6, 2007).

150

ICE, “Parole of Arriving Aliens Found to Have a ‘Credible Fear’” (Nov. 6, 2007).

Article 9(4) of the International Covenant on Civil and Political Rights (ICCPR) (entered into force on March 23, 1976), to which the U.S. is a party,
provides that all detained individuals shall be entitled to have the lawfulness of their detention reviewed by a court. The lack of such review renders the
detention of arriving asylum seekers arbitrary. The UNHCR Guidelines call for procedural guarantees when a decision to detain is made, including
“automatic review before a judicial or administrative body independent of the detaining authorities.” UNHCR, Guidelines on Detention of Asylum-Seekers
(1999), See also UNHCR Executive Committee, Conclusion No. 44 (1986).
151

152

8 CFR §1003.19 (h)(2)(i)(B).

153

ICCPR article 9(4).

154

See A. v. Australia, United Nations Human Rights Committee (Apr. 30, 1997).

155

UNHCR Executive Committee, Conclusion No. 44.

156

UNHCR, Guidelines on Detention of Asylum-Seekers.

157
UN Human Rights Council, Report of the Special Rapporteur on the Human Rights of Migrants, Jorge Bustamante: Mission to the United States of
America (5 March 2008) A/HRC/7/12/Add.2.
158
See e.g. Nadarajah v Gonzalez 443 F.3d 1069, 1075 (9th Cir. 2006) (federal district court’s denial of a habeas petition issued one year after asylum
seeker filed petition).

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See Veerikathy v INS, 98 Civ. 2591, 1998 U.S. Dist. LEXIS 19360 (E.D.N.Y. Oct. 9, 1998); see also Bertrand v. Sava 684 F.2d 204 (2d Cir. 1982);
Zhang v. Slattery, 840 F. Supp. 292 (S.D.N.Y. 1994); Nadarajah v Gonzalez 443 F.3d 1069, 1075 (9th Cir. 2006) (if a “facially legitimate and bona fide”
159

reason for denying parole is provided, the “denial of parole is essentially unreviewable.” Finding agency abused its discretion in denying parole because
the reasons it provided were not facially legitimate and bona fide.)
160

USCIRF, Asylum Seekers in Expedited Removal, Vol. II, p. 332.

161

USCIRF, Asylum Seekers in Expedited Removal, Vol. I, p. 62, see also USCIRF, Report Card, p. 5.

162

Id., p. 67.

163

USCIRF, Report Card, summary p. 2.

164

ICE, “Parole of Arriving Aliens Found to Have a ‘Credible Fear.’”

165
Memorandum by Michael A. Pearson, Executive Associate Commissioner for Field Operations (Dec. 30, 1997); Memorandum by Michael A. Pearson,
Executive Associate Commissioner Officer of Field Operations (Oct. 7, 1998).
166

Letter from Julie L. Myers, Assistant Secretary of ICE, to Eleanor Acer, Director of the Refugee Protection Program, Human Rights First (Dec. 3, 2007).

167

Memorandum by Michael A. Pearson, Executive Associate Commissioner for Field Operations (Dec. 30, 1997); Memorandum by Michael A. Pearson,
Executive Associate Commissioner Officer of Field Operations (Oct. 7, 1998); ICE, “Parole of Arriving Aliens Found to Have a ‘Credible Fear,’” § 4.
168
Prior criteria stated that parole considerations are “critical,” and the district director should review the credible fear interview records and any
accompanying information to make a parole determination. Memorandum by Michael A. Pearson, Executive Associate Commissioner for Field Operations
(Dec. 30, 1997). A 2004 memorandum by the Acting Director of ICE, also stated that “Once credible fear is found, each case must be individually
reviewed under these custody criteria.” Memorandum by Victor X. Cerda, Acting Director of ICE (Sept. 14, 2004).The new parole directive states: “Upon
receipt of a written INA § 212(d)(5) parole request by an arriving alien found to have a ‘credible fear’ of persecution or torture, the receiving DRO Field
Office shall assign the request to a DRO officer…who will complete the ICE Record of Determination/Parole Determination Worksheet.” I.C.E, “Parole of
Arriving Aliens Found to Have a ‘Credible Fear,’” § 8.1.
169
Statistics for fiscal year 2008 on representation for detained and non-detained asylum seekers provided in correspondence from the Executive Office of
Immigration Review to Human Rights First (Feb. 25, 2009).
170
The U.S. Commission on International Religious Freedom, in its 2005 report, found wide variations across the country in parole rates, and concluded
that there is “no evidence that ICE is consistently applying release criteria.” USCIRF, Asylum Seekers in Expedited Removal, Vol. I, p. 62. See also, Human
Rights First, In Liberty’s Shadow: U.S. Detention of Asylum Seekers in the Era of Homeland Security (2004), p. 13.

USCIRF, “USCIRF Expresses Concern to DHS over new policy directive on asylum seekers” (Dec. 14, 2007), available at
http://www.uscirf.gov/index.php?option=com_content&task=view&id=45&Itemid=47.
171

172
Letter from Felice Gaer, Chair of U.S. Commission on International Religious Freedom to Stewart Baker, Assistant Secretary of Policy DHS (Jan. 8,
2009).

National Immigrant Justice Center, “ICE Policy that denies liberty to asylum seekers must be rescinded” (Nov. 16, 2007), available at
http://www.immigrantjustice.org/resources/policy/asylum/Nov2007paroledirective.html; Hebrew Immigrant Aid Society, “Department of Homeland
Security (DHS) Issues New Asylum Policy; More Likely That Victims of Persecution Will Remain in Jail” (Nov. 14, 2007), available at
http://www.hias.org/news/department-homeland-security-dhs-issues-new-asylum-policy; Sign-on letter by 82 non-governmental organizations and
experts, Feb. 19, 2008, available at http://www.humanrightsfirst.info/pdf/rp-letter-parole.pdf.
173

174
USCIRF, Asylum Seekers in Expedited Removal, Vol. II, p. 333. The rate of release dropped from 86.1% in fiscal year 2001, to 62.5% in fiscal year
2003.

ICE’s statistics appear to indicate that only 257 asylum seekers were detained under expedited removal. (ICE, Report to Congress: Detained Asylum
Seekers Fiscal Year 2006 (2007)). Yet during that same year, at least 3,320 asylum seekers were subject to expedited removal (and its mandatory
175

detention provisions) and found to meet the credible fear screening standard. (Statistics found in “Credible Fear Workload Report for fiscal year 2006”,
provided in correspondence from the Asylum Office Headquarters to Human Rights First (Nov.2006)). At another point however, the statistics state that
the “257” number reflects the number of asylum seekers who were detained initially during 2006, and released by the time the statistical report was
generated in March 2007. If that is the case, then it may in fact be that only 16 asylum seekers (out of the 257 who were initially detained during 2006
and released by the time the report was generated) were released on parole. After reviewing these statistics, Human Rights First advised ICE of its
questions regarding the statistics.

176

ICE, Report to Congress: Detained Asylum Seekers Fiscal Year 2007 (2008).

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177

Letter from Stewart Baker, Assistant Secretary of Policy, DHS, to Felice Gaer, Chair of the U.S. Commission on International and Religious Freedom
(Nov. 28, 2008).The number of arriving asylum seekers who were found to have credible fear in November 2007 through June 2008 was provided by the
USCIS Asylum Office to Human Rights First.
178

DHS/ICE did not report how many asylum seekers were newly detained during that time period, or how many asylum seekers overall were in detention
during that time period (Letter from Stewart Baker, Assistant Secretary of Policy, DHS, to Felice Gaer, Chair of the U.S. Commission on International and
Religious Freedom (Nov. 28, 2008).

179

Correspondence between representative from Florida Immigrant Advocacy Center and Human Rights First (Nov. 2008).

180

Correspondence between representative form National Immigrant Justice Center and Human Rights First (Feb. 2009).

181

Correspondence between representative from the Immigration Clinic at the University of Texas Law School and Human Rights First (Oct. 2008).

182

Correspondence between attorney Jodi Goodwin and Human Rights First (Oct. 2008).

183

Correspondence between Human Rights First and a representative from American Gateways (Nov. 2008).

184

Correspondence between Human Rights First and a representative from the Capital Area Immigrants’ Rights Coalition (Oct. 2008).

185

Interview with representative from a pro bono legal organization in Arizona. (May 2008).

186

Correspondence between representative from American Gateways (formerly known as the Political Asylum Project of Austin) and Human Rights First
(Feb. 2009).
187

Correspondence between individual’s attorney and Human Rights First (March 2009).

188

Conversation between representative from RAICES and Human Rights First (May 2008), and follow-up correspondence (Feb. 2009).

189

Correspondence between pro bono attorneys in Arizona, Massachusetts, and Texas and Human Rights First (Feb. 2009).

190

“The determination of the Immigration Judge as to custody status or bond may be based upon any information that is available to the Immigration
Judge or that is presented to him or her by the alien or the Service.” 8 CFR § 1003.19(d). The factors to be considered in setting an immigration bond
were set out in Matter of Patel, 15 I&N Dec. 666 (BIA 1976): “We have held that an alien generally should not be detained or required to post bond
pending a determination of deportability unless there is a finding that he is a threat to the national security or is a poor bail risk.” The BIA went on to
consider the alien’s criminal record and community ties, among other factors.
191

Immigration and Nationality Act § 236(a)(2) (8 U.S.C. § 1226(a)(2)).

192

ICE, “Open Bond Files at ICE Field Offices,” provided in correspondence from ICE to Human Rights First (Jan. 16, 2009). Details average bond amounts
by ICE Field Office for January 2009.
193
ICE, Report to Congress: Detained Asylum Seekers Fiscal Year 2006 (2007); see also ICE, Report to Congress: Detained Asylum Seekers Fiscal Year
2003 (2004). See concerns explained in prior endnote.
194

Correspondence between representative of Catholic Charities of Austin and Human Rights First (Nov. 2008, Feb. 2009).

195

While the U.S. Supreme Court has recognized that indefinite detention would raise serious due process concerns under the U.S. Constitution, and has
held that the indefinite detention of persons subject to final orders of removal violates the immigration statute, the U.S. Department of Justice has argued
that these holdings are limited to cases involving final orders of removal. See Zadvydas v. Davis, 533 U.S. 678 (2001) (holding in case of persons who
previously entered the U.S. that statutory provision governing detention after final order of removal, read in light of the Constitution’s requirements, does
not permit indefinite detention); Clark v. Martinez, 543 U.S. 371 (2005) (applying the same holding to persons who have not been admitted to the U.S.);
Nadarajah v. Gonzales 443 F.3d 1069, 1075 (9th Cir. 2006) (holding, contrary to government’s position, that general detention statutes do not authorize
indefinite detention of non-citizens whose claims for asylum or other relief are still pending).

196

Haitian Refugee Immigration Fairness Act § 903.

197

USCIRF, Asylum Seekers in Expedited Removal, Vol. II, p. 75.

198

ICE, Report to Congress: Detained Asylum Seekers Fiscal Year 2006 (2007).

199

Physicians for Human Rights, From Persecution to Prison (June 2003), p. 2.

200

Michelle Roberts, Associated Press, “Immigrants Face Long Detention, Few Rights,” International Herald Tribune (Mar. 15, 2009).

201

American Civil Liberties Union, “Court Says ‘No’ to Indefinite Detention” (Mar. 17, 2006) reports on a Sri Lankan asylum seeker detained for nearly five
years; Matter of S-K, 231.& N. Dec. 936 (BIA 2006), in which a Burmese woman seeking asylum was detained for two and a half years in El Paso, Texas;
Nina Bernstein, “Out of Repression, Into Jail; Detention for Asylum Seekers Is Routine, but U.S. is Taking Another Look,” New York Times (Jan. 15, 2004);

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U.S. Detention of Asylum Seekers—95

T. Knapp, “Freedom: Release” Intelligencer Journal (Jan. 17, 2008) reports on a Coptic Christian from Egypt who spent eight years in various detention
centers before being granted relief under the Convention Against Torture; Michelle Roberts, Associated Press, “Immigrants Face Long Detention, Few
Rights,” International Herald Tribune (Mar. 15, 2009).
202

Correspondence between Human Rights First and Jay Sparks, Assistant Field Office Director at the Pearsall facility, and Andrew Strait, Acting
Coordinator/Policy Analyst, National Community Outreach Program (Sep. 2008).

203

See more complete profile later in this report.

204

Interviews with pro bono practitioners in Arizona and Florida (Mar. 2008).

205

Correspondence between Florence Immigrant and Refugee Rights Project and Human Rights First.

206

Memorandum by Michael J. Garcia, Assistant Secretary of ICE, “Detention Policy Where an Immigration Judge has Granted Asylum and ICE has
Appealed” (Feb. 9, 2004).
207

ICE, “Parole of Arriving Aliens Found to Have a ‘Credible Fear,’” § 3.

Detention Watch Network and American Immigration Law Foundation, Minutes of Meeting (June 28, 2008); Correspondence between Human Rights
First and pro bono providers in Arizona and Florida (Feb. 2009).

208

209

Interviews and e-mail correspondence with pro bono attorneys from Arizona (March 2008), and Florida (March 2008 and February 2009). The
regulations provide that someone granted withholding of removal under § 241(b)93)(B) of the Immigration and Nationality Act or withholding of removal
under the Convention Against Torture may still be removed to a third country. See 8 CFR § 208.16(f).

210

Haitian Refugee and Immigration Fairness Act §903.

ICE’s statistics appear to indicate that only 257 asylum seekers were detained under expedited removal. (ICE, Report to Congress: Detained Asylum
Seekers Fiscal Year 2006 (2007)). Yet during that same year, at least 3,320 asylum seekers were subject to expedited removal (and its mandatory
211

detention provisions) and found to meet the credible fear screening standard. (Statistics found in “Credible Fear Workload Report for fiscal year 2006”,
provided in correspondence from the Asylum Office Headquarters to Human Rights First (Nov.2006)). At another point however, the statistics state that
the “257” number reflects the number of asylum seekers who were detained initially during 2006, and released by the time the statistical report was
generated in March 2007. If that is the case, then it may in fact be that only 16 asylum seekers (out of the 257 who were initially detained during 2006
and released by the time the report was generated) were released on parole. After reviewing these statistics, Human Rights First advised ICE of its
questions regarding the statistics.

212

These reports appear to include information only on those asylum seekers who were initially detained during the fiscal year being reported on.
Therefore, the length of detention of asylum seekers detained in previous years and who continue to be detained during the fiscal year that is the basis of
the report are not calculated.

213

Physicians for Human Rights, From Persecution to Prison (June 2003).

214

Because the INS was unwilling to provide open access to the detention facilities, the sample group of detained asylum seekers was obtained by
contacting attorneys and other representatives who could identify specific detainees willing to participate in the study. Id. at 45. 51.

Id. at 11, 51.
Id. at 56-57.
217
Id. at 58, 73-74, and 66-67.
215
216

218

Physicians for Human Rights, From Persecution to Prison (June 2003).

219

Derrick Silove, Patricia Austin & Zachary Steel, “No Refuge from Terror: The Impact of Detention on the Mental Health of Trauma-affected Refugees
Seeking Asylum in Australia” Transcultural Psychiatry, Vol. 44, No. 3, 359 (2007); Mina Fazei & Derrick Silove, “Detention of Refugees” British Medical
Journal, February 4, 2006, available at http://www.bmj.com/cgi/content/full/332/7536/251; Zachary Steel et al., “Impact of Immigration Detention
and Temporary Protection on the Mental Health of Refugees,” The British Journal of Psychiatry (2006) 188: 58-64; Testimony of Allen S. Keller, MD,
“Hearing on Detention and Removal: Immigration Detainee Medical Care,” before the House Judiciary Committee’s Subcommittee on Immigration,
Citizenship, Refugees, Border Security, and International Law (October 4, 2007). .
220

Zachary Steel et al., “Impact of Immigration Detention,” The British Journal of Psychiatry (2006) 188.

221

USCIRF, Asylum Seekers in Expedited Removal, Vol. I, p. 4, and Vol. II, p. 197.

222

See, e.g. Donald Kerwin, “Due process for immigrants” (May 2008), available at http://www.ilw.com/articles/2008,0723-kerwin.shtm.

223

Statistics provided by EOIR in correspondence with Human Rights First (Feb. 25, 2009).

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224

Jaya Ramji Nogales, Andrew Schoenholtz and Phillip Schrag, Refugee Roulette: Disparities in asylum adjudication, 60 Stan. L. Rev. 295, 340 (2007).

225

Statistics provided in correspondence between EOIR and Human Rights First (Feb. 25, 2009).

Vera Institute of Justice, Legal Orientation Program: Evaluation and Performance and Outcome Measurement Report, Phase II (New York: Vera Institute
of Justice, May 2008), p. 63 (29% of detained LOP participants who had filed an I-589 were represented, as opposed to 71% of LOP participants who
had filed an I-589 and had been released from detention).

226

227
USCIRF, Asylum Seekers in Expedited Removal, Vol. II, p. 239 (“Detained asylum seekers who are not conversant in English may have difficulty finding
legal counsel, even more difficulty conducting legal research and representing themselves in immigration court.”) See also, Letter from UNHCR Regional
Representative, to Senator Spencer Abraham, Senate Sub-Committee on Immigration (Sept. 15, 1998).

See, e.g. Michele Pistone, “Justice Delayed is Justice Denied: A Proposal for Ending the Unnecessary Detention of Asylum Seekers,” Harvard Human
Rights Journal, Vol. 12, Spring 1999, at 219-220.
229
ICE, “Detention Operations Manual INS Detention Standard: Telephone Access” (Sept. 20, 2000), available at
228

http://www.ice.gov/doclib/partners/dro/opsmanual/visit.pdf, p. 2.

230
GAO, 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, p. 10.
231

Id., p. 15.

232

Michele Pistone, “Justice Delayed is Justice Denied.”

233

GAO, Alien Detention Standards: Telephone Access (July 2007), p. 16.

234

USCIRF, Asylum Seekers in Expedited Removal, Vol. II, p. 198.

235

Correspondence between representative from Florida Immigrant Advocacy Center and Human Rights First (Aug. 2008).

236

Gomez-Zuluaga v. AG of the United States, 527 F.3d 330, 339 (3rd Cir. 2008).

237

DHS, “DHS Announces $12.4 Billion for Border Security & Immigration Enforcement” (Jan. 31, 2008).

ICE, “Fact Sheet: Fiscal Year 2009” (Oct. 23, 2008), available at http://www.ice.gov/doclib/pi/news/factsheets/2009budgetfactsheet.doc. See also
Nina Bernstein, “City of Immigrants Fills Jail Cells With Its Own,” New York Times (Dec. 26, 2008).
238

239

ICE, “Fact sheet: Mortality Rates at ICE Detention Facilities” (May 2008).

240

Testimony of James T. Hayes, Jr., Director, Office of Detention and Removal Operations, “Hearing on Health Services for Detainees in ICE Custody,”
before the House Appropriations Committee Subcommittee on Homeland Security (March 3, 2009).
241

See explanation in ednote 2.

242

ICE has provided statistical information on the detention of asylum seekers in the form of reports to Congress pursuant to the Haitian Refugee and
Immigration Fairness Act. In these reports, ICE only provides limited data on the length of detention for asylum seekers (until 2004, it provided an overall
average length of detention, but ICE did not provide this figure in its 2006 report). These reports appear to include information only on those asylum
seekers who were initially detained during the fiscal year being reported on. Therefore, the length of detention of asylum seekers detained in previous
years and who continue to be detained during the fiscal year that is the basis of the report are not calculated. Similarly, the full length of detention for
asylum seekers who are initially detained during the fiscal year but who remain in detention at the time the report is produced, is also not included.
Calculation based on 11,909 asylum seekers detained for an average length of 71.5 days (based on statistics provided in ICE, Report to Congress:
Detained Asylum Seekers Fiscal Year 2006 (2007)), at an average daily cost of $80 (average daily cost of detention in 2004 from Congressional
Research Service, Report for Congress. Immigration-Related Detention: Current Legislative Issues (April 28, 2004)).
243

244

Conversation between Andrew Strait, Acting Coordinator/Policy Analyst, National Community Outreach Program, ICE, and Human Rights First (March
2009).

245

ICE, Report to Congress: Detained Asylum Seekers Fiscal Year 2006 (2007).

246

ICE, Report to Congress: Detained Asylum Seekers Fiscal Year 2004 (2005).

ICE, “Intergovernmental service agreement for housing federal detainees” (July 16, 2003) available at
http://www.aclum.org/ice/documents/suffolk_contract.pdf.
247

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248
Cost of detention when facility first opened in 2000. Leslie Berestein, “Detention Dollars: Tougher Immigration Laws Turn the Ailing Private Prison Sector
Into a Revenue Maker,” The San Diego Union-Tribune (May 4, 2008), available at
http://www.signonsandiego.com/uniontrib/20080504/news_lz1b4dollars.html.
249

Josh White and Nick Miroff, “The Profit of Detention,” Washington Post (Oct. 5, 2008).

250

Conversation between Andrew Strait, Acting Coordinator/Policy Analyst, National Community Outreach Program, ICE, and Human Rights First (March
2009).

251

Id.

252

“Intergovernmental Service Agreement between the U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Office of
Detention and Removal and Yuba County CA” available at
http://www.co.yuba.ca.us/Departments/BOS/documents/agendas/2008/MG61421/AS61427/AS61430/AS61450/AI62572/DO62575/DO_62575.
PDF.
253

Cost of detention calculated at $89.50 per day. Cost of alternatives to detention program calculated at average of $10 to $14 a day.

254

Leslie Berestein, “Detention Dollars.”

255

Cost of detention calculated at $119.28 per day. Cost of alternatives to detention program calculated at average of $10 to $14 a day.

Cost of detention calculated at $82 per day. Anna Gorman, “Cities and Counties Rely on U.S. Immigrant Detention Fees,” Los Angeles Times (March
17, 2009), available at http://www.latimes.com/news/local/la-me-immigjail17-2009mar17,0,764607.story.

256

257

Cost of alternatives to detention program calculated at average of $10 to $14 a day.

258

Cost of detention calculated at $161.42 per day. Cost of alternatives to detention program calculated at average of $10 to $14 a day.

259

Cost of detention calculated at $84.51 per day. Cost of alternatives to detention program calculated at average of $10 to $14 a day.

260

Responses of Julie Myers to Senator Edward Kennedy’s follow-up Questions on the Nomination of Julie Myers to be Assistant Secretary of ICE (Oct. 23,
2007).
261

Two weeks detention calculated based on average cost of $95 a day.

262

The cost of detaining an asylum seeker for 3 months at the average daily cost of $95 is approximately $8,550. The cost of supervising an asylum
seeker released into an alternatives to detention program for 6 months is approximately $1,800 to $2,520. Thus, even if the case lasts twice as long for
an asylum seeker who is released, there would still be substantial cost savings as compared to detention.

263

Vera Institute of Justice, Testing Community Supervision for the INS: An Evaluation of the Appearance Assistance Program Vol. I (Aug. 2000), p. 2.

264

160 beds); Otero County Processing Center (1,088 beds).

264
See, e.g. GAO, “Alien Detention Standards: Observations on the Adherence to ICE’s Medical Standards in Detention Facilities,” GAO-08-869T (June
2008); Dana Priest and Amy Goldstein, Washington Post, May 11, 2008; Nina Bernstein, “Few Details on Immigrants Who Die in Custody,” New York
Times (May 5, 2008); Department of Homeland Security, Office of Inspector General, Treatment of Immigration Detainees Housed at Immigration and
Customs Enforcement Facilities,” December 2006.
265
Information on openings available at: Department of Homeland Security Division of Immigration Health Services, “Job Listings”, (2009), available at
https://jobs-dihs.icims.com/jobs/search?ss=1&searchKeyword=&searchLocation=&searchCategory=&searchRadius=5&searchZip=. Vacancy rate from
testimony of Julie L. Myers, Assistant Secretary of U.S. Immigration and Customs Enforcement (ICE), “Hearing on Problems with Immigration Detainee
Medical Care” (June 4, 2008).
266
Dana Priest and Amy Goldstein, “Suicides Point to Gaps in Treatment” (May 13, 2008), which reports on the case of a Somali woman detained at the
Elizabeth Detention Center who was incorrectly diagnosed with psychosis without the use of an interpreter; see also Testimony of ‘Asfaw’, before House
Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law, “Hearing on Problems with Immigration Detainee Medical
Care,” (June 4, 2008) (refugee from Ethiopia who was given the wring medication without the use of an interpreter).
267
Testimony of Dora Schriro, before House Appropriations Committee Subcommittee on Homeland Security, “Hearing on Medical Care and Treatment of
Immigration Detainees and Deaths in DRO Custody” (March 3, 2009); see also Dana Priest and Amy Goldstein, “Suicides Point to Gaps in Treatment”
(May 13, 2008).
268

GAO, “Alien Detention Standards: Observations on the Adherence to ICE’s Medical Standards in Detention Facilities,” GAO-08-869T (June 2008). See

also, DHS Office of Inspector General, “Immigration and Customs Enforcement’s Trackign and Transfers of Detainees,” OIG 09-41 (March 2009).

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269
Dana Priest and Amy Goldstein, “System of Neglect” (May 11, 2008) (reports that in January 2008, the Pearsall detention center had a backlog of
2,097 appointments).
270

DHS, “DHS Announces $12.4 Billion for Border Security & Immigration Enforcement” (Jan. 31, 2008).

271

Testimony of Julie L. Myers, Assistant Secretary of U.S. Immigration and Customs Enforcement (ICE), “Hearing on Problems with Immigration Detainee
Medical Care” (June 4, 2008).
272

DHS, “ICE Policies Related to Detainee deaths and the Oversight,” OIG-08-52 (June 2008).

273

Dana Priest and Amy Goldstein, “System of neglect” (May 11, 2008).

274

Testimony of Julie L. Myers, Assistant Secretary of U.S. Immigration and Customs Enforcement (ICE), “Hearing on Problems with Immigration Detainee
Medical Care” (June 4, 2008).

See Department of Homeland Security Division of Immigration Health Services, “Job Listings”, (2009), available at https://jobsdihs.icims.com/jobs/search?pr=1 (last visited March 31, 2009).
275

276
ICE, “Detention Operations Manual INS Detention Standard: Medical Care” (Sept. 20, 2000), part D; The new Performance Based Standards, effective
in 2010, have a similar provision (see Operations Manual ICE Performance Based National Detention Standards, ICE/DRO Detention Standard “Medical
Standard,” Expected outcome 37 (Dec. 2, 2008)).
277

Physicians for Human Rights, From Persecution to Prison (June 2003).

278

During a visit by Human Rights First to Hampton Roads Regional Jail (November 2008), facility officials indicated they rely on guards to interpret during
medical meetings; see also Florida Immigrant Advocacy Center, “Dying for Decent Care: Bad Medicine in Immigration Custody” (March 2009), p. 47,
reporting that a nurse at the Wakulla County Jail in Florida stated she asked an ICE officer to interpret for Spanish-speaking detainees.
279
Testimony of Ann Schofield Baker, Pro Bono Attorney for Amina Mudey, McKool Smith, “Hearing on Problems with Immigration Detainee Medical Care,”
before House Judiciary Committee’s Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law (June 4, 2008).
280
Dana Priest and Amy Goldstein, “Suicides Point to Gaps in Treatment” (May 13, 2008); Video: Amina Mudey’s story, available at
http://www.washingtonpost.com/wp-srv/nation/specials/immigration/index.html.

Dana Priest and Amy Goldstein, “Suicides Point to Gaps in Treatment” (May 13, 2008); See also testimony of Ann Schofield Baker, “Hearing on
Problems with Immigration Detainee Medical Care” (June 4, 2008).

281

282

Testimony of Dora Schriro, “Hearing on Medical Care and Treatment of Immigration Detainees and Deaths in DRO Custody” (March 3, 2009).

ICE, “Mortality Rates at ICE Detention Facilities” (July 17, 2008), available at
http://www.ice.gov/pi/news/factsheets/detention_facilities_mortality_rates.htm. Fiscal year 2008 numbers current as of July 8, 2008.
283

284
ICE, “Mortality Rates at Detention Facilities” (July 17, 2008); See also testimony of James T. Hayes, Director of Office of Detention and Removal
Operations, ICE, “Hearing on Medical Care and Treatment of Immigration Detainees and Deaths in DRO Custody”, before House Appropriations Committee,
Subcommittee on Homeland Security (March 3, 2009) stating that “mortality rates at ICE facilities have significantly decreased since 2004” and that the
“mortality rate for ICE detainees in 2008 was 2.7 deaths per 100,000 detainees. See also Julie Myers, “Caring for immigration detainees,” Washington
Post (May 20, 2008) available at http://www.washingtonpost.com/wp-dyn/content/article/2008/05/19/AR2008051902296.html.
285

Statement of Homer Venters, MD, “Hearing on Problems with Immigration Detainee Medical Care,” before the House Committee on the Judiciary
Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law (June 4, 2008).

286

GAO, DHS: Organizational Structure (Feb. 23, 2009), p.19.

287

Testimony of Julie L. Myers, “Hearing on Problems with Immigration Detainee Medical Care” (June 4, 2008).

288

Testimony of James T. Hayes, Jr., “Hearing on Health Services for Detainees in ICE Custody” (March 3, 2009).

289

Physicians for Human Rights, From Persecution to Prison (June 2003).

See, e.g., Florida Immigrant Advocacy Center, Dying for Decent Care: Bad Medicine in Immigration Custody (Feb. 2009); Human Rights Watch,
Detained and Dismissed: Women’s Struggles to Obtain Health Care in United States Immigration Detention (Feb. 2009); Amnesty International, Jailed
Without Justice (March 2009); Physicians for Human Rights and The Bellevue/NYU Program for Survivors of Torture, From Persecution to Prison: The Health
Consequences of Detention for Asylum Seekers (June 2003), p. 64, 78.

290

ICE, “Washington Post Detainee Health Care Series Day 3: Myths vs. Facts regarding the May 13, 2008, article,” available at
http://www.ice.gov/pi/wash_post_myth_fact3.htm.

291

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U.S. Detention of Asylum Seekers—99

292

The cost of detention at the Willacy Detention Center in Raymondville, Texas, for example, is $78 per detainee per night (Spencer Hsu and Sylvia
Moreno, “Border Policy’s Success Strains Resources: Tent city in Texas Among Holding Sites Drawing Criticism,” Washington Post (Feb. 2, 2007), available
at http://www.washingtonpost.com/wp-dyn/content/article/2007/02/01/AR2007020102238.html). This is $17 cheaper than the average cost of $95
a night.
293

See information in chapter on video conferencing in immigration court and asylum offices for credible fear interviews, and the expenses of travel costs.

294

DHS OIG, “ICE Policies Related to Detainee Deaths” (June 2008).

295
Vera Institute of Justice, LOP: Evaluation and Performance Report (May 2008), p. 63. (“LOP participants who received more intensive services had I589 grant rates of 9.4 percent versus 2.4 percent for those LOP participants who attended group orientations alone.”)
296

See section on “Access to Legal Representation” below.

297

Vera Institute of Justice, LOP: Evaluation and Performance Report (May 2008), p. iv.

In 2007, ICE detained 311,169 individuals, see Office of Immigration Statistics, Annual Report: Immigration Enforcement Actions 2007 (Dec. 2008),
available at http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement_ar_07.pdf.
298

299

Testimony of James T. Hayes, Jr., “Hearing on Health Services for Detainees in ICE Custody” (March 3, 2009).

300

Vera Institute of Justice, “Legal Orientation Program” available at http://www.vera.org/cij/lop.html

301

Correspondence between representative from Vera Institute of Justice and Human Rights First (Apr. 2009). Calculation based on estimate that LOPs
will reach approximately 48,000 detained individuals out of the expected 442,941 detainees during the year.
302

Conversation between Management Training Corporation, the private corporation that manages the Willacy Detention Center, and Human Rights First
(March 2009).

303

Associated Press, “Immigration Officials Pull 600 Detainees from N.M. Jail Because of Safety Concerns,” The Arizona Daily Star (Sept. 13, 2007),

available at http://www.azstarnet.com/sn/news/201042.php.
304

Correspondence between representative from Catholic Charities of Austin and Human Rights First (Feb. 2009).

305

Ramji-Nogales, Schoenholtz and Schrag, Refugee Roulette (2007).

306

Id., p. 340.

307

GAO, U.S. Asylum System: Significant Variation Existed in Asylum Outcomes Across Immigration Courts and Judges, GAO-08-940 (Sept. 2008), p. 30.

308

37 percent of detained asylum seekers did not have representation in 2008, whereas 83 percent of non-detained and released asylum seekers secure
representation. Statistics for fiscal year 2008 on representation for detained and non-detained asylum seekers were provided in correspondence from the
Executive Office of Immigration Review to Human Rights First (Feb. 25, 2009). See also, Donald Kerwin, “Charitable Legal Programs for Immigrants” (June
2004). Kerwin obtained statistics from EOIR on rates of representation for fiscal year 2003. The data showed that 1,845 out of 5,537 (or 33.3%) of
detained asylum and Convention Against Torture cases were unrepresented.
309
Interviews with local pro bono legal representatives (May 2008); correspondence between a representative from Catholic Charities of Austin and
Human Rights First (Feb. 2009).
310

USCIRF, Asylum Seekers in Expedited Removal, Vol. II, p. 240.

311

Vera Institute of Justice, LOP: Evaluation and Performance Report (May 2008), p. 24.

312

Correspondence between representative from Diocesan Migrant Refugee Services, El Paso, and Human Rights First (Dec. 2008).

313

Conversation between Jay Sparks, Assistant Field Office Director, and Human Rights First during its visit of the South Texas Detention Center, Pearsall,
Texas, (May 2008).

314

Rusu v. INS, 296 F.3d 316, 323 (4th Cir. 2002).

315

EOIR, “Fact Sheet: EOIR’s Video Conferencing Initiative” (Sept. 21, 2004).

316

GAO, Executive Office for Immigration Review: Caseload Performance Reporting Needs Improvement, GAO-06-771 (Aug. 2006), p. 18.

317

Correspondence between EOIR and the Legal Assistance Foundation of Metropolitan Chicago (March 3, 2005), included as Appendix B in The Legal
Assistance Foundation of Metropolitan Chicago and Chicago Appleseed Fund for Justice, Videoconferencing in Removal Hearings: A Case Study of the
Chicago Immigration Court (Chicago: The Legal Assistance Foundation of Metropolitan Chicago and Chicago Appleseed Fund for Justice, August 2, 2005)
Jennifer Ludden, “Debate over Video in Immigration Courts,” National Public Radio (Feb. 10, 2009), available at
http://www.npr.org/templates/story/story.php?storyId=100534850.
318

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100—U.S. Detention of Asylum Seekers

319
2,723 credible fear interviews conducted by video from the Houston asylum office, out of 4,420 total credible fear interviews conducted in 2007.
Information provided by USCIS,Asylum Office liaison meeting (June 17, 2008 and March 9, 2009). Information on “pass rate” for video and in-person
credible fears also provided by USCIS Asylum Office.
320
USCIRF, Asylum Seekers in Expedited Removal, p. 168. This rate is calculated as number of cases in which credible fear was found out of all credible
fear decisions made (for 2008, credible fear was found in 3,128 cases out of 5,290 decisions made). Information provided by USCIS Asylum Office.
321

The Houston Asylum Office has jurisdiction over Arkansas, Colorado, Louisiana, Mississippi, Oklahoma, New Mexico, Tennessee, Texas, Utah, and
Wyoming. See USCIS, “USCIS Service and Office Locator” available at
https://egov.uscis.gov/crisgwi/go?action=offices.detail&office=ZHN&OfficeLocator.office_type=ZSY&OfficeLocator.statecode=OK.
322

Credible fear interview statistics are provided by the Asylum Office on a quarterly basis during national liaison meetings.

323

Information provided by USCIS, at Asylum Office Headquarters liaison meeting (March 9, 2009).

324

EOIR, “EOIR’s Video Conferencing Initiative.”

See, e.g. Sandra Hernandez, “Immigration Reforms Result in Fewer Judges, More Prosecutors,” Los Angeles Daily Journal (Aug. 27, 2008); Spencer S.
Hsu and Carrie Johnson, “Effort on Immigration Courts Faulted,” Washington Post (Sept. 8, 2008); TRAC Immigration, “Improving the Immigration Courts:
Effort to Hire More Judges Falls Short,” available at http://trac.syr.edu/immigration/reports/189/.
325

326

Executive Office for Immigration Review, Office of the Chief Immigration Judge, “Videoconferencing in Removal Proceedings” (Aug. 31, 2005).

Frank M. Walsh and Edward M. Walsh, Effective Processing or Assembly-Line Justice? The Use of Teleconferencing in Asylum Removal Hearings, 22
Geo. Immigr. L.J. 259, 271 (2008).

327

328

Anne Bowen Poulin, Criminal Justice and Videoconferencing Technology: The Remote Defendant, 78 Tul. L. Rev. 1089 (2004).

329

U.S.C. 1229a(c)(4)(C), INA § 240(c)(4)(C).

Frank M. Walsh and Edward M. Walsh, Effective Processing or Assembly-Line Justice? The Use of Teleconferencing in Asylum Removal Hearings, 22
Geo. Immigr. L.J. 259, 271 (2008).

330

331

Rusu v. INS, 296 F.3d 316, 323 (4th Cir. 2002) (“video conferencing may render it difficult for a factfinder in adjudicative proceedings to make
credibility determinations and to gauge demeanor.”) See also, the Legal Assistance Foundation of Metropolitan Chicago and Chicago Appleseed Fund for
Justice, Videoconferencing in Removal Hearings, p. 17-18.

332

UNHCR, Alternatives to Detention of Asylum Seekers and Refugees, POLAS/2006/03 (April 2006).

333

ICE Fact Sheet: Alternatives to Detention (March 16, 2009), available at

http://www.ice.gov/pi/news/factsheets/080115alternativestodetention.htm. See also, Vera Institute of Justice, Testing Community Supervision for the
INS: An Evaluation of the Appearance Assistance Program, Volume 1 (Aug. 2000), Esther Ebrahimian, “The Ullin 22: Shelters and Legal Service Providers
Offer Viable Alternatives to Detention,” Detention Watch Network News, (Aug./Sept. 2000).
334

Responses of Julie Myers to Senator Edward Kennedy’s follow-up Questions on the Nomination of Julie Myers to be Assistant Secretary of ICE (Oct. 23,
2007).

335

Fudning for alternatives to detention: Fiscal Year 2005: $20.7 million out of $1.2 billion detention and removal budget (ICE, “Fact Sheet: Fiscal Year
2005” (Feb. 5, 2006)); Fiscal Year 2006: $38 million out of $1.6 billion detention and removal budget (ICE, “Fact Sheet: Fiscal Year 2006” (Feb. 5,
2006)); Fiscal Year 2007: $43.6 million out of $1.98 billion detention and removal budget (ICE, “Fact Sheet: Fiscal Year 2007” (Feb. 5, 2006)); Fiscal
Year 2008: $53.8 million out of $2.38 billion detention and removal budget (ICE, “Fact Sheet: Fiscal Year 2008” (Dec. 28, 2007)); Fiscal Year 2009:
$63 million out of $2.48 billion detention and removal budget (ICE, “Fact Sheet: Fiscal Year 2009” (Oct. 23, 2008)).

336

Vera Institute of Justice, Testing Community Supervision for the INS: An Evaluation of the Appearance Assistance Program, Volume I (Aug. 2000), p. 2.

Vera Institute of Justice, Testing Community Supervision for the INS, at iii, 8, 27, 31; Christopher Stone, “Supervised Release as an Alternative to
Detention in Removal Proceedings: Some Promising Results of a Demonstration Project,” Georgetown Immigration Law Journal (Spring 2000), p. 283,
285.
337

Esther Ebrahimian, “The Ullin 22: Shelters and Legal Service Providers Offer Viable Alternatives to Detention,” Detention Watch Network News,
August/September 2000, at #8.

338

339
See House Judiciary Committee Report, H.Rpt. 108-10, (report accompanying H.J. Res. 2, Omnibus Appropriations Bill of 2003), p. 626. Certain
members of Congress were concerned that funds allocated for alternatives to detention were instead being used to build new detention centers. See Letter
from Senator Leahy, Senator Hatch, Senator Kennedy and Senator Brownback to Attorney General Ashcroft, August 16, 2002.

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U.S. Detention of Asylum Seekers—101

ICE, Fact Sheet: Fiscal Year 2009 Budget (Oct. 23, 2008) available at http://www.ice.gov/doclib/pi/news/factsheets/2009budgetfactsheet.doc;
Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009, Committee Print of the House Committee on Appropriations on H.R.
2638 / Public Law 110-329, available at http://www.gpoaccess.gov/congress/house/appropriations/09conappro.html.

340

341

ICE, Fact Sheet: Fiscal Year 2009 Budget.

342

Responses of Julie Myers to Senator Edward Kennedy’s Questions on the Nomination of Julie Myers to be Assistant Secretary, Immigration and
Customs Enforcement, Department of Homeland Security (Oct. 3, 2007) (“In general, the following aliens may be considered for ATd: aliens who are not
subject to mandatory detention or who have been ordered released by the appropriate judicial authority; aliens who are not deemed to be threats to the
public or flight risks; and aliens who have infrastructure in place to support various electronic monitoring technologies.”)

343
Responses of Julie Myers to the U.S. Senate Committee on Homeland Security and Government Affairs, Pre-hearing Questionnaire for the Nomination
of Julie Myers to be Assistant Secretary, Department of Homeland Security (Sept. 2007).
344
Responses of Julie Myers to Senator Edward Kennedy’s Questions on the Nomination of Julie Myers to be Assistant Secretary, Immigration and
Customs Enforcement, Department of Homeland Security (Oct. 3, 2007).
345
Responses of Julie Myers to Senator Edward Kennedy’s follow-up Questions on the Nomination of Julie Myers to be Assistant Secretary of ICE (Oct. 23,
2007).
346

G4S website at http://www.g4s.com/home.htm.

347

These sub-offices are Charlotte, North Carolina; Hartford, Connecticut; and Orlando, Florida. ICE Fact Sheet: Alternatives to Detention (March 16,
2009), available at http://www.ice.gov/pi/news/factsheets/080115alternativestodetention.htm.
348

DHS/ICE Salaries and Expenses, Program Performance Justification to Congress for FY 2009, p. 39.

349

Responses of Julie Myers to Senator Edward Kennedy’s follow-up Questions on the Nomination of Julie Myers to be Assistant Secretary of ICE (Oct. 23,
2007).
350

ICE, Fact Sheet: Alternatives to Detention.

351

Id.

See, e.g. Megan Mack, American Bar Association, “Health Care for Immigration Detainees:
What Should Be The Standard?” (Feb. 13, 2009) (explaining that alternatives to detention programs are now being used to monitor individuals that in the
past would not have been detained to begin with); Anne Sovcik, Lutheran Immigration and Refugee Service, Briefing Materials Submitted to the InterAmerican Human Rights Commission, Alternatives to Detention in the U.S. Immigration Detention System: Recommendations of reforms necessary to
improve U.S. compliance with constitutional and international standards of procedural and substantive due process (July 7, 2008) (providing case
examples of situations in which alternatives to detention programs have been used to “widen the net”).

352

353

Correspondence between representative from Advocates for Human Rights and Human Rights First (March 2009).

354

Phone interview with representative from Florida Immigrant Advocacy Center (March 2, 2009).

355

Correspondence between representative from Advocates for Human Rights and Human Rights First (March 2009).

356

Testimony of Julie Myers, Assistant Secretary of ICE, Confirmation Hearing, U.S. Senate Committee on Homeland Security and Government Affairs Prehearing Questionnaire (July 26, 2007).

357

These provisions are located primarily at 8 C.F.R. § 1003.19 and § 212.5, as well as § 208.30 and § 235.3.

358

See, e.g., Florida Immigrant Advocacy Center, Dying for Decent Care: Bad Medicine in Immigration Custody (Feb. 2009); Human Rights Watch,
Detained and Dismissed: Women’s Struggles to Obtain Health Care in United States Immigration Detention (Feb. 2009); Amnesty International, Jailed
Without Justice (March 2009); Physicians for Human Rights and The Bellevue/NYU Program for Survivors of Torture, From Persecution to Prison: The Health
Consequences of Detention for Asylum Seekers (June 2003).

359

http://www.dhs.gov/xnews/releases/press_release_0794.shtm

360

GEO Group, http://www.thegeogroupinc.com/northamerica.asp?fid=107.

361

http://www.ice.gov/doclib/partners/dro/opsmanual/visit.pdf

362

In 2002, the former INS used 20,662 jail-like detention beds (21,262 beds minus 600 beds at the non-jail-like Broward Transitional Center facility).
Department of Justice, “Fiscal Year 2000 Performance Report and Fiscal Year 2002 Performance Plan: Strategic Goal Five.” This number grew to 33,400
immigration detention beds in 2009. James T. Hayes, Jr., Director, Office of Detention and Removal Operations, “Health Services for Detainees in U.S.
Immigrations and Customs Enforcement Custody," before the House Appropriations Committee, Subcommittee on Homeland Security (March 3, 2009).

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102—U.S. Detention of Asylum Seekers

2,723 out of 4,420 credible fear interviews conducted by video in 2007 – all from the Houston asylum office. Information provided by USCIS, at Asylum
Office Headquarters liaison meeting (June 17, 2008 and March 9, 2009). Frank M. Walsh and Edward M. Walsh, Effective Processing or Assembly-Line
Justice? The Use of Teleconferencing in Asylum Removal Hearings, 22 Geo. Immigr. L.J. 259, 271 (2008).
363

Dana Priest and Amy Goldstein, “System of Neglect: As Tighter Immigration Policies Strain Federal Agencies, The Detainees in Their Care Often Pay at
Heavy Cost,” Washington Post, May 11, 2008, available at http://www.washingtonpost.com/wp-srv/nation/specials/immigration/cwc_d1p2.html
(accessed March 24, 2009).
364

USCIRF, Asylum Seekers in Expedited Removal, Vol. II, p. 332.

A Human Rights First Report

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