A comprehensive report issued by Amnesty International USA Wednesday finds that tens of thousands of immigrants — and, in one case, a Minnesota-born citizen — have been held in detention in the United States, many in violation of international law.
Conducted by Amnesty researchers based on interviews over the course of a year with immigration lawyers and judges, asylum seekers, government officials and non-governmental organizations, the report finds that U.S. immigration policy has increasingly detained immigrants – including lawful residents and even some U.S. citizens – without a meaningful ability to challenge their detentions in an objective judicial proceeding, without access to a lawyer to help them determine their legal status, and often in inhumane conditions, commingled with criminals and denied access to minimal health care.
One case highlighted in the Amnesty report tells of “Mr. W,” a Minnesota-born U.S. citizen who says he has never set foot outside of the country. He was placed in immigration detention in Florence, Arizona, and because he couldn’t access his birth certificate, he had to work work in the prison kitchen for a dollar a day to raise the $30 needed to order a copy of his birth certificate. He was released after more than a month in lockup.
“America should be outraged by the scale of human rights abuses occurring within its own borders,” said Larry Cox, executive director of AIUSA, in a statement released with the report. “Officials are locking up thousands of human beings without due process and holding them in a system that is impossible to navigate. . . . The U.S. government must ensure that every person in immigration detention has a hearing to determine whether that detention is necessary.”
Such arbitrary detentions violate international standards such as the United Nations International Covenant on Civil and Political Rights, says Amnesty. The group calls on Congress to amend the immigration laws to eliminate arbitrary detention, use alternatives to detention where possible and improve detention conditions.
“Everyone has the right to liberty and security of person,” reads Article 9 of the U.N. Covenant. “No one shall be subjected to arbitrary arrest or detention” or deprived of liberty, the Covenant continues, except “in accordance with such procedures as are established by law.”
“For people who are in mandatory detention, where they’re automatically detained without an individualized review, that’s arbitrary detention,” said said Sarnata Reynolds, policy director for refugee and migrant rights at Amnesty USA. “That’s a violation of international law.”
For many immigrants, such individualized review is not happening.
Amnesty researchers interviewed a Buddhist monk from Tibet, for example, who fled to the United States after being imprisoned and tortured twice because of his religious beliefs and political statements in Tibet. When he arrived in New York, he was immediately placed in detention. Although his attorney applied for his release and even submitted an affidavit from a member of the American Tibetan community who pledged to provide the monk lodging and ensure his appearance at immigration hearings, the government never even responded to the attorney’s request. The monk – who did not want his name used out of fear of retaliation — was never permitted to even argue his case for release to an immigration judge. After ten months in detention, he was finally granted permission to remain in the United States in September 2007.
The U.N. Working Group on Arbitrary Detention has called on governments to ensure that “alternative and noncustodial measures, such as reporting requirements, should always be considered before resorting to detention.”
The agency did not respond to written questions sent to the agency from Amnesty researchers, said Reynolds. Reached yesterday, however, Cori Bassett, a spokesperson for ICE, said that Department of Homeland Security Secretary Janet Napolitano in January issued an “action directive” to study issues of immigrant detention. Bassett added that “there are approximately 1.1 million individuals in removal proceedings. On average, only about 31,000 are detained on any given day. Out of concern for the conditions of their confinement, ICE has already made appreciable gains in detention standards. That said, the care and treatment that such detainees receive does not yet meet our shared standards for excellence.”
Meanwhile, advocates for restrictive immigration policies claim that detention is necessary to ensure that immigrants show up to their immigration hearings.
“The reason they detain people is because if you let them go, they disappear,” said Ira Mehlman, spokesman for the Federation for Immigration Reform. “So they detain them for very good reason. You have people who have no apparent claim for entry into the [United States], and if you let them out on the streets you’re never going to see them again.”
In fact, the Amnesty report notes that there are effective and far less costly alternatives to detention, most of which takes place in jails run by private companies under contract with the U.S. government. The average cost of detaining a migrant is $95 per person, per day — approximately $2,850 per month. Alternatives to detention, such as regular reporting to authorities, cost as little as $12 a day. A study by the Vera Institute of Justice found that such alternatives to detention are generally effective – in approximately 91 percent of cases, the immigrants shows up for their hearings.
Meanwhile, detaining immigrants is getting more and more expensive as the numbers of detainees in the U.S. has soared, from 10,000 in 1996, reports Amnesty, to more than 30,000 in 2008. Of the more than 300,000 men, women and children taken into custody by US immigration authorities each year, many are asylum seekers, torture survivors, human trafficking victims, lawful permanent residents and parents of U.S. citizen children, Amnesty reports.
Take, for example, the case of a 26-year-old Chinese woman who told Amnesty researchers that she fled to the United States after she and her mother were beaten in China for handing out religious fliers. She arrived in the United States seeking asylum in 2008 and was detained at the airport, then transferred to a county jail. No one told her why she was being held. Without explanation, an ICE Field Office Director ordered her to remain in detention unless she could pay $50,000 bond. But neither her relatives in the United States nor her family in China was able to raise the money. Finally, after almost a year in detention, they were able to post the bond and win her release.
Although in the past asylum seekers who could establish community ties could be released, in November 2007 ICE issued new guidelines that restricted asylum seeker’s ability to receive parole. And the Justice Department does not have authority to review decisions made by ICE field office directors involving migrants stopped at the border.
The result is that whether or not someone is detained or released pending an asylum determination is often arbitrary. Only 4 percent of those seeking asylum in Newark, New Jersey were granted it, reports Amnesty, while 98 percent were released in Harlingen, Texas.
Although ICE reported an average detention stay of 37 days in 2007, Amnesty found that immigrants and asylum seekers were often detained for months or even years before anyone determined whether they’re actually allowed to remain in the United States.
And according to a 2003 study, asylum seekers who were eventually granted asylum spent an average of 10 months in detention; at least one was detained for as long as three and a half years. An Associated Press investigation recently found, similarly, that nearly 10,000 immigrants had been in custody longer than the average length of detention that ICE cites.
Immigrants arrested at the border don’t even have a right to have their detention reviewed by an immigration judge. And although technically those arrested inside the United States do have a right to review before a judge, Amnesty’s researchers found that those reviews often do not take place. Those ordered deported to countries that refuse to take them back, meanwhile, may remain in detention indefinitely — violating both domestic and international legal standards, Amnesty claims.
Adding to immigrants’ troubles is that unlike in criminal proceedings, they have no right to a lawyer in immigration proceedings. Those who manage to retain one at their own expense often fall prey to incompetent and unlicensed attorneys, or notarios, as the Washington Independent has reported.
Another federal program that the Washington Independent has reported on also encourages arrests of undocumented immigrants who have committed only petty crimes. As the report notes: that James Pendergraph, former executive director of the ICE Office of State and Local Coordination, said at the Police foundation National Conference, that “If you don’t have enough evidence to charge someone criminally but you think he’s illegal, we [ICE] can make him disappear.”
Even immigrants who are not convicted of any crimes can remain in detention, often shackled, denied adequate health care and commingled with the local prison population, Amnesty found.
According to ICE, 74 people have died while in immigration detention between 2004 and July 2008. Amnesty’s report describes several incidents where severe illness or injury were overlooked by immigration officials, resulting in death, such as the case of Boubacar Bah, a 52-year-old tailor from Guinea who had overstayed a tourist visa. While in detention, other detainees report that he collapsed and hit his head on the floor. Instead of receiving medical treatment, he was shackled to the floor and placed in solitary confinement for “behavioral problems.” More than 13 hours later, during which he was unresponsive and foaming at the mouth, he was taken for emergency surgery for a skull fracture and brain hemorrhage. He slipped into a coma and died four months later.
Lawful residents and even U.S. citizens, unable to prove their legal status, may also get caught in the immigration system’s snare. Amnesty International “has identified more than a hundred cases in the past ten years in which US citizens and lawful permanent residents have incorrectly been placed into removal proceedings.”
The Washington Independent previously reported on the case of a developmentally disabled U.S. citizen living in Los Angeles who was deported to Mexico because he could not produce his passport. He was left homeless in Mexico until his family found him in Tijuana three months later.
Daphne Eviatar is a law reporter for the Washington Independent.