Immigration detention in the United States
The United States government holds tens of thousands of immigrants in detention under the control of Customs and Border Protection (CBP; principally the Border Patrol) and the Immigration and Customs Enforcement (ICE). Immigrants are detained for unlawful entry to the United States, when their claims for asylum are received (and prior to release into the United States by parole), and in the process of deportation and removal from the country. During Fiscal Year 2018, 396,448 people were booked into ICE custody: 242,778 of whom were detained by CBP and 153,670 by ICE's own enforcement operations. A daily average of 42,188 immigrants (40,075 adult and 2,113 in families) were held by ICE in that year. In addition, over twelve thousand immigrant children are housed by facilities under the supervision of the Office of Refugee Resettlement's program for Unaccompanied Alien Children. Prior to referral to these other agencies, the CBP holds immigrants at processing centers; between mid-May and mid-June 2019, it held between 14,000 and 18,000 immigrants.
Mandatory detention was officially authorized by President Bill Clinton in 1996, with the enactment of the Antiterrorism and Effective Death Penalty (which gave the Attorney General discretion to extend detention) and the Illegal Immigration Reform and Immigrant Responsibility acts.[clarification needed] From 1996 to 1998, the number of immigrants in detention increased from 8,500 to 16,000 and by 2008 this number increased to more than 30,000. According to the Global Detention Project, the United States possesses the largest immigration detention system in the world. In 2003, the U.S. Immigration and Customs Enforcement agency (ICE) was created under the Department of Homeland Security. ICE enforces the United States' immigration and customs laws, uses investigative techniques to apprehend and detain those suspected of violating them, and then deports many of these individuals. The Office of Detention and Removal Operations (DRO), housed within ICE, oversees the detention and deportation of immigrants taken into custody by ICE. Currently, ICE detains immigrants in over 200 detention centers (including privatized facilities), in state and local jails, in juvenile detention centers, and in shelters.
Several human rights organizations, including Amnesty International and the American Civil Liberties Union (ACLU), and a series of reports made by The New York Times have cited concerns with ICE's management of these detention centers. Reports refer to instances of human rights abuse and inadequate or unprofessional medical care in these detention facilities. Such reports have also publicized the death of several immigrants in detention and have accused ICE of covering up this information. ICE, in response, has released a list of 166 people who died under ICE detention between 2003–2016. ICE has publicly stated that the agency provides "state-of-the-art medical care" and "do[es] everything possible to maintain the best quality of life for the detainees in…custody." In May 2008 the Detainee Basic Medical Care Act of 2008 (H.R. 5950) was introduced to the United States Congress by Representative Zoe Lofgren (D-CA), though no further steps have been taken to enact the bill.
Immigration detention in the United States began in the 1890s at Ellis Island. It was used as a permanent holding facility for foreign nationals throughout the Second World War, but fell into disuse in the 1950s. In the 1980s, Ronald Reagan reacted to the mass migration of asylum seekers arriving in boats from Haiti by establishing a program to interdict them (i.e. stop and search certain vessels suspected of transporting undocumented Haitians). As the number of undocumented immigrants who were fleeing economic and political conditions increased, President Bush Sr attempted to find a regional location to handle the influx. The United Nations High Commissioner for Refugees arranged for several countries in the region—Belize, Honduras, Trinidad and Tobago, and Venezuela—to temporarily provide a safe haven for Haitians, however the Coast Guard was quickly overwhelmed, and by November 18, 1991, the United States forcibly returned 538 Haitians to Haiti. These options also proved inadequate for the sheer numbers of Haitians fleeing their country, and the Coast Guard took them to the U.S. naval base in Guantanamo, Cuba, where they were pre-screened for asylum in the United States.
Process of detention and removal
Detained immigrants are given a unique identifying number called an Alien Registration Number ("A-number"), provided they do not already have one by virtue of their legal alien status, and are sent to a county, state, federal, or private prison, where they remain until deported.
Office of Enforcement and Removal Operations
There are four divisions within ICE which work to investigate illegal immigration, enforce immigration laws, and detain and deport offenders of these laws: Enforcement and Removal Operations (ERO), the Office of Investigations (OI), the Office of Intelligence (Intel), and the Office of International Affairs (OIA). ERO is the division that deals directly with the detention of immigrants. ERO, under ICE, operates eight detention centers, termed "Service Processing Centers," in Aguadilla, Puerto Rico; Batavia, New York; El Centro, California; El Paso, Texas; Florence, Arizona; Miami, Florida; Los Fresnos, Texas; and San Pedro, California. ICE also has contracts with seven private companies that run facilities in Aurora, Colorado; Houston, Texas; Laredo, Texas; Tacoma, Washington; Elizabeth, New Jersey; Queens, New York; and San Diego, California. Other facilities that house immigrant detainees include juvenile detention centers and shelters. However, the majority of immigrants are detained in state and local jails, which have contracts with ICE. At the end of the 2007 fiscal year the United States' immigration detention system comprised 961 sites.
In 2007, the program, Secure Communities, was created within ICE to identify criminal aliens, prioritize them based on the severity of the crimes that they committed, and transform the processes necessary to remove them by increasing efficiency. Secure Communities identifies undocumented immigrants with the use of modern technology, notably biometric identification techniques. These were first employed in Houston, Texas in 2008. As of April 2011, the Secure Communities' biometric sharing capability is being used in 1,210 of 3,181 jurisdictions (state, county, and local jails and prisons) in the U.S. Between 2008, when the program was started, through March 2011, 140,396 convicted criminal aliens have been booked into ICE custody resulting in 72,445 deportations. Under the Secure Communities program, the fingerprints of everyone arrested and booked are not only checked against FBI criminal history records, but they are also checked against DHS immigration records. If fingerprints match DHS records, ICE determines whether immigration-enforcement action is required, considering the immigration status of the alien, the severity of the crime, and the alien's criminal history. ICE then places a detainer on the individual, which is a request that the jail hold that person for up to 48 hours beyond their scheduled release, so that ICE can come to interview or to possibly take him into custody.
The Obama administration has been a big proponent of the program, expanding it from 14 jurisdictions under President George Bush to over 1,210 jurisdictions as of March 2011. ICE plans to expand the program nationwide by 2013.
In a memo dated November 20, 2014, Department of Homeland Security Secretary Jeh Johnson discontinued the Secure Communities program. On January 25, 2017, the Secure Communities program was restarted by the Department of Homeland Security per an executive order signed by President Donald Trump.
The enactment of the Illegal Immigration Reform and Immigrant Responsibility Act in 1996 added onto the Immigration and Nationality Act a clause, titled Section 287(g), which allows state and local law enforcement officials to enforce federal immigration law on the condition that they are trained and monitored by ICE. This agreement in practice permits local and state enforcement officials to arrest and even detain individuals they encounter during their day-to-day duties if they suspect them to be or "identify" them as undocumented immigrants. However, many of the individuals picked up by local law enforcement have committed minor offenses, such as driving infractions, and lacked proper identification when stopped. Many civil rights groups have accused Section 287(g) of permitting or causing racial profiling.
Detention at the border
Often, undocumented aliens or individuals lacking legal permission to enter, or remain, in the United States, when apprehended at the U.S. border are detained and placed in removal proceedings in front of an immigration judge. These individuals may include refugees seeking asylum. Under Section 235(b)(2) of the Immigration and Nationality Act, if an individual stopped at the border is believed to be an undocumented immigrant or a threat to national security, they are considered "inadmissible" and classified as an "arriving alien." Individuals detained at the border are only released on a case-to-case basis by the authority of ICE officials.
Immigration detention facilities are required to uphold many of the same standards maintained by domestic detention facilities as well as international human rights laws and protocols. Facility officials are prohibited from violating the Eighth Amendment in the utilization of force to cause harm to inmates. The U.S. government has ratified the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Racial Discrimination, and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in regards to immigration detention facilities, all of which provide standards and protocols that must be administered and followed in the treatment of immigrant detainees. This includes the proper administration of medical treatment as well as swift response to medical requests by detainees. There have been reports that some facilities utilize punitive disciplinary action that violate the Convention Against Torture and International Covenant on Civil and Political Rights protocols and that abuse by facility officials is not limited to excessive punitive action. The ACLU has reported that complaints of physical, sexual, and verbal abuse by officials are not at all uncommon and state that there seems to be a pronounced lack of response and record keeping of detainee complaints by facility officials. While immigration detention facilities are required to uphold many of the same standards maintained by domestic detention facilities, the biggest discrepancy is in legal representation. Immigrants are not guaranteed a right to due process but can hire attorneys to handle portions of their casework at cost.
After being picked up by ICE officials, either at the border, through Secure Communities, or by local officials by way of Section 287(g), an individual can be released on bond if they are not deemed a "threat" to national security. However, many are put in mandatory detention due to criminal history. The enactment of Antiterrorism and Effective Death Penalty and Illegal Immigration Reform and Immigrant Responsibility acts subjected a wider range of individuals to mandatory detention, including, "non-violent misdemeanor convictions without any jail sentence, and anyone considered a national security or terrorist risk." In addition, if an individual is already in the U.S., they will be put in mandatory detention if suspected of being a threat to national security or charged with two crimes of "moral turpitude," an "aggravated felony," a firearms offense, or a controlled substance violation. Thus, crimes that did not assign jail time to the individual may subject them to mandatory detention. The ACLU has condemned this practice, saying that it violates due process and is inefficient and costly, since individuals who do not pose a threat to national security but have a criminal record are often the ones subjected to mandatory detention.
Because the Immigration and Nationality Act and federal court case decisions mandate ICE to carry out a post order custody review of all individuals slated for deportation, when they are held in detention for more than ninety days, to reassess whether or not the individual is a threat to national security or can be released.
On April 16, 2019, U.S. Attorney General William Barr ruled that asylum seekers who are in detention and have shown they have a credible fear of returning to their countries are not able to have a judge grant them bond. Judge Marsha J. Pechman of United States District Court for the Western District of Washington effectively blocked the implementation of the policy before it was able to take effect on July 15, 2019, filing an injunction in a class-action lawsuit on behalf of migrants and their advocates.
Deportation occurs after undocumented residents are brought before an immigration judge in removal proceedings and the judge either issues a warrant of removal or reinstates prior orders of deportation/removal. Removal proceedings are conducted by the Department of Justice-Executive Office for Immigration Review.
In July 2019, the Trump administration implemented a broader scope of "expedited removal" of migrants apprehended at the border to allow immigration officials to deport on a quicker time table. The broader scope limited the ability to challenge deportation claims, unless an undocumented immigrant could prove they had lived in the United States for more than two years. Pro-immigrant and legal groups, such as the American Civil Liberties Union vowed to sue. However, the Supreme Court eventually approved the "fast-tracked" deportations of undocumented migrants, leaving little recourse to state who challenged the expansion of deportations.
Immigration detention centers are managed by three agencies: Customs and Border Protection, Immigration and Customs Enforcement, and the Office of Refugee Resettlement.
CBP processing and detention centers
Customs and Border Protection directly detains immigrants at the border and ports of entry. Facilities are designed for brief detention stays, after which migrants are usually turned over to Immigration and Customs Enforcement, or in the case of parent–child pairs and other children, to the Office of Refugee Resettlement. Under standard procedures, this detention should not exceed 72 hours, but in mid-2019, the average length of detention exceeded one week.
During the first half of 2019, the number of arriving immigrants on the U.S.–Mexico border increased greatly over prior years. The number of migrants held in CBP custody surged to 13,400 on March 27, 2019. In May and June 2019, between 14,000 and 18,000 people were held by CBP each night. On a press call, a Customs and Border Protection Commissioner McAleenan stated that, "A high number for us is 4,000. A crisis level is 6,000. 13,000 is unprecedented."
CBP detention facilities include the El Paso Del Norte Processing Center in El Paso, Texas, the "Ursula" Central Processing Center and Donna tent facility in McAllen, Texas, and the Border Patrol Station in Clint, Texas. During the 2019 surge in migrant arrivals, many CBP facilities held inmates in numbers far exceeding their planned capacities. Border Patrol agents converted numerous rooms and outdoor spaces into temporary holding facilities. The Department of Homeland Security's Office of Inspector General (OIG) reported that "the El Paso Del Norte Processing Center … does not have the capacity to hold the hundreds currently in custody safely, and has held the majority of its detainees longer than the 72 hours generally permitted." CBP facilities have been the sites of communicable infections including chicken pox, scabies, influenza, and lice.
Many of the detention centers housing immigrants are operated by private corporations who have contracts with ICE. The privatized model of detention, which is common within the United States' prison system, has raised several concerns. Without the government being directly involved, human rights abuses can go unmonitored and be difficult to uncover. The privatization model is based on profit maximization, meaning that more detainees result in more money for the private companies contracted to operate these facilities. While a cost-benefit argument is used to vouch for privatization, an attorney from the ACLU has stated, "It's much more expensive to detain people rather than supervise them to ensure that they appear for their removal proceedings and for deportation if necessary."
Several politicians have attempted to end or alter the terms of privatization. In 2015, Rep. Raul Grijalva introduced the Justice Is Not For Sale Act. Co-sponsored by thirty other Democrats, the bill aimed to effectively eliminate private detention centers and transfer their operation over to the federal government. Among some of the current complaints addressed in the bill were the cost of phone calls, which the bill required be capped, and to allow multiple telecommunication companies to provide phone service.
Rep. Adam Smith of Washington introduced a bill in 2015 entitled the Accountability in Immigration Detention Act (H.R. 2314). The bill highlights detention facility standards and oversight for the facilities. More specifically, it calls on for the Secretary of Homeland Security to enforce these standards for detention facilities. Items of concern include the cost of telephone calls, prevention of sexual abuse and harassment, and limiting the use of solitary confinement. It also contains suggestions of alternatives to detention. The bill maintains that the use of these alternatives would be left to the discretion of the Department of Homeland Security. It was referred to three committees, including the Committee on Homeland Security.
To address the controversial use of quotas in these detention centers, Rep. Theodore Deutch introduced the Protecting Taxpayers and Communities from Local Detention Quotas Act in 2015 (H.R.2808). The bill targets bed quotas used by private companies and demands the U.S. Immigration and Customs Enforcement refuse them in contracts and contract extensions. It had 9 cosponsors, including Rep. Adam Smith and Rep. Raul Grijalva. After its introduction, it was sent to the Committee on the Judiciary in July 2015.
These governmental contracts with detention facilities have not only gained profit for private companies, but also for the cities and counties that house immigrants in their detention centers. In 2008, ICE spent $55.2 million on detaining immigrants at thirteen jails in California and roughly $57 million in 2009. For many cities and counties across the country, immigration detention has been a lucrative business that provides much needed revenue. Santa Ana's Police Chief, Paul Walters, stated, "We treat [the jail] as a business," in reference to a proposed plan to convert rooms at the local jail into a site for detained immigrants.
In 2017, Donald Trump signed an executive order to expand the border wall with Mexico and increase the building of detention centers. A memo from top Homeland Security officials published in 2017 outlines the goal to detain 85,000 illegal immigrants per day. Private prison companies benefit from Trump's strict stance on illegal immigrants because they are paid per inmate per day. GEO Group and CoreCivic, the two largest private prison companies, are known financial supporters of Trump's campaign. Both GEO Group and CoreCivic have released statements in support of Trump's new policies.
The Varick Federal Detention Facility in Manhattan is one of these privatized detention centers. The Varick facility is managed by Ahtna Technical Services, Inc., an Alaskan corporation that hires a subcontractor to provide guards, transportation, and equipment used at the center. In 2009, ICE proposed the construction of an immigration detention center outside of Los Angeles, which would be operated by a private corporation.
People previously held in private detention centers have also sued over these private prison's work programs to seek damages. GEO Group, the second largest private prison company in the United States, has been found to only pay workers in their programs one dollar a day—or less, while also punishing detainees who refuse solitary confinement. Professor Jackie Stevens of Northwestern University's Deportation Research Clinic obtained documents that highlighted the financial troubles as a result of these lawsuits. Because of these suits, GEO Group asked the federal government for repayment over unexpected costs of running these private detention centers. In March 2018, 18 Republican members of Congress sent a letter to Attorney General Jeff Sessions, claiming these low paying work programs—with threat of solitary confinement -- "improve detainees morale."
While the United States Constitution provides convicted individuals with legal advice, free of charge if they cannot afford an attorney, immigrants are not guaranteed this right. Instead, they must pay for a lawyer, an option most detained immigrants cannot afford. While immigration courts are required to supply detainees with a list of pro-bono lawyers and agencies that provide legal advice, many of those on the list only represent specific types of immigrants, i.e., asylum seekers or individuals who are not detained. While ICE detention standards state that detainees are provided with access to law libraries, allotted a handbook discussing immigration detention, and given a presentation on their legal rights, these actions are often not carried out in practice.
The American Civil Liberties Union, while recognizing that ICE implemented important standards and regulations, publicized criticisms, including that ICE does not require the latest PBNDS standards at all detention facilities. The ACLU also condemns ICE's practice of allowing immigrants to be held in "short term" facilities that do not possess basic needs such as beds, water, and toothbrushes, and for over-incarcerating immigrants who are not a flight risk, and thus do not need to be detained.
On January 18, 2019, Kirkland & Ellis attorney Sarah Fabian, senior counsel to the Department of Justice, argued, before a panel of three judges of the United States Court of Appeals for the Ninth Circuit, in San Francisco, that toothbrushes and soap were not required elements of "safe and sanitary conditions" for the "shorter stays" of children in ICE detention.
Several cases of abuse in immigration detention centers have been cited by sources including Amnesty International, the ACLU, the Los Angeles Times and the New York Times. The Los Angeles Times reported on one such instance of abuse, endured by a detainee named Luiz Enrique Guzman at the private Stewart Detention Center in Lumpkin, Georgia, who stated, "the conditions [were] "terrible"...the center staff frequently violated his civil rights" and that "he was beaten while in detention and placed in segregation because he worked to organize detainees." The New York Times reported "recurrent complaints include[ing] frigid temperatures, mildew and meals that leave detainees hungry and willing to clean for $1 a day to pay for commissary food" at the Varick Federal Detention Facility in Manhattan. In addition, individuals in immigration detention centers are often placed in custody with violent offenders, even though undocumented immigration is a civil, not criminal, matter. As of January 10, 2010 there have been 107 deaths of immigrants in detention since 2003, when ICE was created. ICE has been accused of covering up many of these deaths, like that of Boubacar Bah, an immigrant from Guinea who was placed in isolation for thirteen hours after suffering from a skull fracture and eventually died in custody. Another immigrant who died in ICE detention was Hiu Lui Ng, whose fractured spine and cancer had gone undiagnosed. In fact, officials at the Donald W. Wyatt Detention Facility in Rhode Island accused him of lying about his situation and denied him medical care. Francisco Castaneda was an immigrant detained at a facility in California who was similarly denied care – a biopsy for a penile lesion – and ended up dying from cancer. ICE has responded by publicizing the list of deaths that have occurred in its detention centers, performing a review of its facilities, and issuing a renewed set of standards to be followed in detention.
In addition to their condemnation of the conditions at immigration detention centers, various human rights groups and news sources have also criticized the high costs necessary to sustain ICE's detention infrastructure. ICE's annual budget is roughly 2.5 billion for its detention and deportation duties. President Obama's fiscal year 2017 budget request would reduce the bed quota to 30,913 detention beds: 29,953 adult beds at an average rate of $126.46 per day and 960 family beds at an average rate of $161.36 per day. Through fiscal year 2016, the bed quota remains at 34,000.
It has been reported that only a small percentage of the population of detained immigrants have committed crimes. However, of the 32,000 immigrants in ICE detention on January 25, 2009, 18,690 had no criminal convictions, including illegal entry.
Protests by detained immigrants have taken place at several facilities, including the Varick Federal Detention Facility in Manhattan. One hundred detainees at the Varick site, all of whom had no criminal charges, sent a petition in October 2008 to the New York City Bar Association detailing human rights abuses and substandard conditions and asking for legal help. On January 19, 2010, detainees at the same site initiated a hunger strike against the conditions of detention. The strike was broken up by a SWAT team that allegedly "used pepper spray and "beat up" some detainees, took many to segregation cells as punishment and transferred about 17 to immigration jails in other states." In response to the report, the New York City Bar Justice Center began the NYC Know Your Rights Project. This initiative combines the efforts of the City Bar Justice Center, the Legal Aid Society and the New York chapter of the American Immigration Lawyers Association with the goal of providing more pro bono legal help specifically at the Varick detention center. Many detainees are left without legal council at the Varick Facility and at other detention center because their cases are considered civil and not criminal. In these civil cases, defendants must pay for legal counsel. The Bar's Justice Center found that very few detainees could afford such help. Similarly, the Columbia Law Review states that in general most detainees do not have legal representation in their court cases. A report found that the lack of legal aid to detainees threatens the legitimacy and fairness of the court system and the efficiency of the courts themselves. For detainees without legal aid, the decisions of the court on a case are more likely to be incorrect or unjust, according to the report. Many detainees do not get legal aid because, apart from financial issues, they often are transferred to other detention centers without giving alert to family, legal representation or advocacy network. Centers can be rural and isolated, located where legal aid, representation and other forms of advocacy can be inaccessible.
Similarly, the detainees were denied access to adequate healthcare in detention facilities. In a report by Project South and Penn State Law titled "Imprisoned Justice," it is evident that the two detention centers in Georgia, Stewart Detention Center and Irwin County Detention Center, were recommended to shut down because they both not only violated Immigration and Customs Enforcement guidelines but also the office of the United Nations High Commissioner for Refugees guideline. According to these guidelines, every detainee must receive a full medical evaluation at intake but some reported that they had never seen the medical staff. The report demonstrated that the healthcare problems in these centers were easily ignored because the detainees were not aware of their rights in these facilities. Allegations of forced hysterectomies taking place at the Irwin facility have also been made.
The spring of 2017 brought a new change in child separation policies to ICE detention centers in the United States with the transition from the Obama to Trump administrations. This "zero-tolerance" policy changed the way the courts prosecuted undocumented immigrants crossing the border, according to Professor Jackie Stevens of Northwestern University's Deportation Research Clinic. Instead handing out civil charges for those apprehended crossing the border, U.S. Attorney General Jeff Sessions changed the prosecution statute to a criminal misdemeanor, leading to large numbers of undocumented children to be separated from their families. However, after litigations, a judicial order was handed down by the courts to begin to reunite families who had been separated during that period. In August 2019, the American Civil Liberties Union and U.S. Justice Department found that more than 500 children who had been separated from their parents at the border have not been found, leading to concerns over the fate of these unaccounted minors.
ICE has also come under scrutiny over its methods to identify whether a detainee is an unaccompanied minor or an adult of 18-years-old or older. Dental radiographs are used to assess molar size to evaluate age, but this method has proven unreliable. Dental radiographs only give an approximate age, within a few years. But evaluating by molars means there could be ambiguity over a detainee being a minor or an adult. When these discrepancies arose, ICE systematically put the individual's age at the oldest year possible, in order to move them to detention facilities, rather than child care units. Child care units are much more expensive to maintain than detention facilities for undocumented adults. This American Life, a WBEZ Chicago radio show, highlighted Yong Xiong's journey through detention facilities, as dental radiographs claimed she was still a child, even though she was 19-years-old.
International regulation regarding human rights
United States Immigration Detention Facilities are required to uphold many of the same standards maintained by domestic detention facilities as well as international human rights laws and protocols. Facility officials are prohibited from violating the Eighth Amendment in the utilization of force to cause harm to inmates. The U.S. government has ratified the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Racial Discrimination, and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in regards to immigration detention facilities, all of which provide standards and protocols that must be administered and followed in the treatment of immigrant detainees. This includes the proper administration of medical treatment as well as swift response to medical requests by detainees. The United States is also bound by the United Nation's Universal Declaration on Human Rights codified in 1948 and the Universal Declaration of Human Rights, both of which swift and adequate response to all medical requests and emergencies. Despite these standards as well as the purpose of immigration detention not being punitive, facilities often utilize punitive disciplinary action that violate the Convention Against Torture and the International Covenant on Civil and Political Rights protocols. However, abuse by facility officials is not limited to excessive punitive action. Complaints of physical, sexual, and verbal abuse by officials are not at all uncommon. Furthermore, there seems to be a pronounced lack of response and record keeping of detainee complaints by facility officials. Detainees are protected via international law through several articles within various treaties in which the United States is a signatory. For example, Article 12 of Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment states as follows:
Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.
Violation of this specific article, along with a variety of other international codes that regulate the rights immigrant detainees, are unquestionably common within United States Immigration Detention Facilities. Similar to issues involving lack of response to medical requests and emergencies, immigration detention centers in the United States often violate international human rights codes in regards to lack of legal representation to those held in custody. Other international articles particularly relevant to immigration detention facilities are Article 2 of the Universal Declaration of Human Rights, which ensures all individuals of equal rights regardless of nationality and Article 9 of the International Covenant on Civil and Political Rights, which guarantees anyone who has been detained be promptly brought before a judge or other judicial power. Continued expansion of immigration detention will further the prevalence of international law violation if enforcement and reformation does not coincide alongside.
International human rights violations
This section possibly contains original research. (June 2018)
Since the United States Congress passed the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act in 1996, the use of detention has become the U.S.'s primary enforcement strategy. This is evident by the drastic increase of people being detained, 2008 saw 230,000 detainees, which was three times the number of people being held in 1999. This overwhelming increase has been accompanied by a rise in violations of international law being committed by the United States against those being detained. Such violations include the handling of grievances, the medical care provided or lack thereof, and inhumane and/or degrading treatment shown towards detainees. Furthermore, detention policies have worked to disregard the sanctity of the family unit, violate the rights of refugees and asylum seekers, and ignore both domestic and international laws of due process.
The intent behind a grievance procedure is meant to keep detention officials in check and prevent their abuse of power. However, reports have shown that detainees have been denied the chance to file a grievance, and for those who are given the opportunity, it is often ignored or overlooked. This is a direct violation of international law as grievances are meant to be guaranteed to such individuals detained under international law.
Due process is arguably the most evident concern of immigrant detention violations. International law requires interpreters to be provided for cases of language barriers, however personal stories show that this procedure is not always followed. International law guarantees legal material and counsel, however, detainees are often denied such rights. The law libraries being offered to detainees lack sufficient material for individuals to make their own appeal. Access to the internet and to newspaper have often been denied as critical evidence can be found to support asylum claims surrounding news of their countries of origin. The inaccessibility of immigrant detention centers pose a problem as those who can afford counsel risk having meetings be delayed or cancelled. Lawyer-client confidentially is compromised as detention officers have been found to open mail. Cases have also shown that detainees are not offered private rooms away from officers for their meetings.
In the United States the detained immigrants, or natural born citizens are not given the right to counsel. The sixth amendment Sixth Amendment to the United States Constitution, the Sixth amendment allows accused criminals to have full access to legal counsel, even if they cannot afford to pay for their own legal counsel. In many courts around the United States United States have yet to find that those who are not citizens in removal cases are able to use the Sixth Amendment which is their right to counsel. The criminalization of undocumented immigrants, or accused U.S. citizens of being undocumented have not in most cases committed a crime coming to the U.S., but instead have committed a civil offense. A civil offense rarely leads a person to spend any amount of time incarcerated, and immigrants detained, or assumed to be in the United States illegally can be held for a short period of time, or for an extend time in most cases being withheld to have access to legal counsel.
International law requires that every individual subject to detention have adequate medical care. The United Nation's Universal Declaration on Human Rights was the first to record this universal right in 1984. Based on reports from legal advocacy groups, lack of access to adequate medical care has been the most common complaint made by detainees. It has been found that as many as 80% of detainees are dissatisfied with the medical care practices in place. Medical care has been ignored, inadequate, denied, and in some cases, inhumane.
Despite statements from the United Nations that detention of refugees should be avoided, the United States has often turned to detention as its primary mode of operation when determining asylum claims. Detention of asylum seekers violates Article 26 of the 1951 Convention on Refugees. This article indicates that asylum seekers are lawful in the United States, granting them freedom while their cases are being determined. Although United States was not officially a "party" in the 1951 Convention, it became a party in the subsequent amendment, the 1967 Protocol, meaning that the United States is obliged to adhere to the Convention. Unfortunately, the UNHCR has no enforcement, and individuals have no means to file complaints. The United States continues to violate international and domestic laws by detaining refugees before their status is determined.
Immigrant Detention in the United States: Violations of International Human Rights Law is a paper published on Human Rights Brief that investigates how the practice of detention violates international law within sectors previously outlined. Given the United States's impact on global affairs, implications of its violations to such international legal standards must be recognized. If detention centers continue to be run without the proper oversight, where officials are not held accountable to the standards of international and human rights law, it is likely that such violations will continue. International human rights laws shed light on the shortcomings of the current practice of detention centers, thus the United States must begin to look for alternatives that are in accordance with international human rights standards.
U.S. citizens in immigration detention
There have been numerous cases where U.S. citizens have been held in immigration detention. Data from Syracuse University's Transactional Records Access Clearinghouse shows that "detainers were mistakenly placed on 834 U.S. citizens and 28,489 permanent residents between 2008 and 2012." In one case, a man was held in immigration detention for more than three years. In some cases  ICE has actually deported U.S. citizens, including native-born U.S. citizens, to other countries. One notorious case (Mark Lyttle) involved a Puerto-Rico born (and therefore U.S. citizen) man deported to Mexico. Another case involved the deportation of a 14-year-old girl, born in Dallas, Texas, and therefore a U.S. citizen, to Colombia. Although ICE claims to keep no official figures on the percentage of detainees who have a credible claim to U.S. citizenship, the American Civil Liberties Union estimates this percentage to be between one and four percent. ICE has no legal authority over U.S. citizens.
ICE has acknowledged that its system of immigration detention needs an "overhaul." In 2009, it issued a report citing steps it planned to take "immediately," including hiring a medical professional to review medial complaints and establishing an Office of Detention Oversight (ODO), which will be independent from ERO and will report detainees grievances. U.S. Secretary of Homeland Security Janet Napolitano stated that alternatives to detention will be provided for immigrants who have no criminal convictions as a part of a series of new reforms planned for the country's immigration detention system. These alternatives include housing immigrants at "converted hotels, residential facilities or place[ing them] on electronic ankle bracelets for monitoring."
In 2016, California State Senator Ricardo Lara from California and co-sponsors the Immigrant Legal Resource Center (ILRC) and Freedom for Immigrants, formerly known as Community Initiatives for Visiting Immigrants in Confinement (CIVIC), introduced a bill Dignity not Detention, SB 1289, intended to curtail the practice of detaining immigrants for profit. Currently private prisons are making a substantial profit detaining immigrants. The bill would also ensure that detainees are treated fairly and humanely. SB 1289 was passed in California August 30, 2016, but Governor Jerry Brown vetoed it. However, Sen. Lara reintroduced the bill as SB 29 in 2017 and Gov. Brown signed it into law in October 2017. The measure went into effect January 2018, halting the expansion and construction of for-profit immigrant prisons in the state of California.
Solitary confinement is a common method used by ICE in detention centers. Throughout the United States, about 300 immigrants are in a state of solitary confinement, with half of them being isolated for more than 15 days. ICE identifies four purposes for segregating detainees:
- Administrative Segregation: The main causes are if a detainee poses a threat towards other inmates or if a detainee feel threatened by other inmates. However, it also applies for detainees that are awaiting a transfer to another detention center, their release, or a hearing for disciplinary action. Detainees sentenced to administrative segregation are subject to the same treatment that the rest of the population receive.
- Disciplinary Segregation: If a detainee commits a serious violation of the center's disciplinary norms, the disciplinary facility panel may sentence the detainee to solitary confinement after a hearing. This is only to be used for serious violations that are congruent with the Disciplinary Severity Scale and where no other punishment would adequately fit the violation.
- Special Vulnerabilities: Detainees that represent special circumstances for solitary confinement include those with poor medical conditions, pregnancies, mental health issues and the elderly. Also those who could be subject to harm by the rest of the detainees because of their sexual orientation or gender identity. Special vulnerabilities also include those who have suffered from sexual abuse before arriving in the detention center or during their stay.
Field Officer Directors are only required to write a report to the ICE headquarters only if detainees have been in solitary confinement for a 14-day period. However, cases of solitary confinement may be longer than 14 days, extending to 30, or even 60 days in extreme cases.
Dr. Stuart Grassian, a Board-Certified psychiatrist and former professor of the Harvard Medical School, an expert in the psychological effects of solitary confinement, has concluded that this practice can lead to a psychological syndrome termed as "prison psychosis". Some of the symptoms identified with prison psychosis are "hallucinations, panic attacks, overt paranoia, diminished impulse control, hypersensitivity to external stimuli and difficulties with thinking, concentration and memory". The U.N. Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has stressed that solitary confinement that surpassed 15 days should be eradicated, since scientific evidence shows that it could have irreversible psychiatric consequences.
Immigration detention under Obama
The Obama administration promised to overhaul the immigration detention system and transform it into one that is less punitive, more centralized, and more transparent. However, immigrant rights groups raised concerns about ongoing abuses against detainees. ICE officials were pressured to increase detention and deportation quotas to fulfill the agency's annual goal. A 2010 memo issued by James M. Chaparro, the chief of ICE's Detention and Removal Operations, "congratulated agents for reaching the agency's goal of '150,000 criminal alien removals' for the year ending Sept. 30" but "instructed agents to pick up the pace of deportations by detaining more noncitizens suspected only of unauthorized residence." Homeland Security Secretary Janet Napolitano also publicly endorsed the Secure Communities deportation initiative, which had "rapidly expanded" under the Obama administration, expressing a hope in 2009 that the program would expand to all of the United States by 2013.
In late February 2013, ICE announced that it has released "several hundred" detained immigrants from deportation centers ahead of budget cuts; the release of the detained immigrants was praised by Human Rights First, and criticized by Republican Representative Bob Goodlatte. The White House and the Department of Homeland Security distanced itself from the decision to release the detained immigrants with White House Press Secretary Jay Carney calling those released "low-risk, non-criminal detainees". The Associated Press reported that the official in charge of immigration enforcement and removal operations resigned due to the release of the detained undocumented immigrants, but ICE stated that the official had retired and that his departure was not connected to the release. Those released were told they were bonded and released, with ICE officials saying that the released immigrants remain in deportation proceedings. In March 2013, the Department of Homeland Security announced that the number released was more than 2,000 in the states of Arizona, California, Georgia, and Texas; the department also stated it plans to release an additional 3,000 in March 2013. The Politico reports that the cost of housing detained immigrants cost about $164 per day per person.
In a memo made public in 2015, officials issued guidance for ICE personnel directing staff to house transgender immigrants in sex-segregated housing that corresponds with their gender identity.
In 2015, the U.S. Commission on Civil Rights did a report entitled With Liberty and Justice for All: The State Civil Rights in Immigration Detention Facilities, which was critical of conditions at immigration detention facilities. One Commissioner filed a lengthy dissent.
Immigration detention under Trump
Following two executive orders on January 25, 2017, ICE accelerated its pace of arrests, arresting 41,000 people within the next 100 days. During the 2017 fiscal year, ICE held a daily average of slightly more than 38,000 people in detention. In President Trump's 2018 budget proposal, the administration proposed spending more on immigration detention beds, expanding capacity to 48,000 people. In addition to detainees, ICE supervises the status of 2.3 million people, who must regularly check in with the agency. Immigration and Customs Enforcement (ICE, immigration police) and Customs and Border Protection (CBP) increased the number of unaccompanied minors detained nearly sixfold, from an average of 2,400 each night in May 2017 to 12,800 each evening in September 2018. Many academics have labelled the migrant detention centers as concentration camps, but others disregard this issue. In June 2020, reports from multiple news outlets reported that detainees were gassed with disinfectant and tear gas that led to multiple injuries. Also, there have been claims of illegal sterilization on women, and of migrant children being isolated from their families, both practices were compared to "experimental concentration camps".
Immigration detention under Biden
In May 2021, the unprecedented surge of unaccompanied minors at the US-Mexico border reached more than 21,000 children. The children are being temporarily housed in shelters in Dallas and San Antonio, Texas, as well as the Long Beach Convention & Entertainment Center in California under the care of the Department of Health and Human Services. The time the children spend in government custody is lessening, to 30 days from 42 days under the Trump administration.
Beginning in February 2021, the administration awarded nearly $3 billion in contracts to private entities to provide accommodations for unaccompanied children. Over $2 billion was in no-bid contracts to three organizations: Deployed Resources, LLC of Rome, New York; Mobile, AL-located Rapid Deployment Inc.; and Family Endeavors (AKA Endeavors) of San Antonio. Deployed Resources will be paid up to $719 million to manage a Donna Texas 1500 beds emergency refuge for children. Rapid Deployment has been awarded two contracts for $614 million to run a Fort Bliss, Texas site that could become the largest in the country as it expands to 10,000 potential beds. Family Endeavors has previously received $87 million from ICE to house migrant families in hotel rooms and could be paid up to $580 million to manage a crisis intake facility in Pecos Texas.
Transgender immigrant issues
ICE detains an average of 65 transgender women every day. Although it hasn't become public knowledge until recently, it has been recorded that transgender detainees face many hardships while held in private detention centers. Transgender detainees have reported that many of them have requested hormonal treatment, yet were never provided with such access to hormones while in private detention centers. The Southern Poverty Law Center (SPLC) has conducted a thorough investigation on the living conditions of these private institutions, and have suggested that transgender detainees who had previously been subjected to hormonal therapies, should be allowed to continue these hormonal therapies while in detention centers. The SPLC also found that transgender detainees are especially vulnerable to receiving a lack of both mental and medical care while being held within these private facilities. Furthermore, transgender immigrants held within some of these private detention centers, such as Prairieland, are specifically housed in a separate facility from all other immigrants, in order to remain under watchful protection. This visible segregation has resulted in many transgender immigrants wondering if such a specific housing unit causes more harm than good. Even with the availability of a separate transgender unit, some transgender detainees request to be placed with the male population, as they fear that stigma may possibly arise as a result from being separated from the normal population. Investigations of the conditions under which transgender detainees live in has resulted in an overwhelming plea for reformation, suggesting that these individuals do not receive adequate protection, care, and housing After investigating the conditions under which transgender detainees live in within these facilities, the SPLC generated a series of potential improvements that can be made to better provide for the safety and comfort of these transgender individuals.
Many transgender detainees not only report a lack of provided hormonal care; they are subjects of abuse by other detained immigrants and the guards of these private facilities. Detainees who identify as LGBTQ are found to be 15 times more likely to be sexually assaulted than their heterosexual, non-transgender counterparts. The gender gap leads to humiliation, isolation, and physical and verbal abuse. This isolation is only extended as transgender inmates must choose between a prison, dominated by men, near their friends, family, home, lawyer and resources and a prison without these critical resources but specified to a prison built and dedicated to the LGBTQ community (even though there is speculation that creating this specialized facility and environment leads to further stigmatization and abuse). Moreover, Inmates are further isolated in their choice between living with males or living in solitary confinement, those who choose to live with their male counterparts are for the most part physically and verbally abused, while those who choose solitary are held for prolonged periods (weeks or months at a time): Human Rights Watch reported that a transgender woman from Mexico had been held in solitary confinement for about 18 months before being deported. These extended periods in Solitary confinement are justified by the prison system under what they call, "protection." Human Rights Watch found a public address to the United Nations General on Torture, which stated that: "'[I]ndefinite and prolonged solitary confinement, in excess of fifteen days, should also be subject to an absolute prohibition,' due to its scientifically proven negatives effects on the mental health of those who are subjected to such forms of isolation". The Human Rights Watch continues with their report that provides further details of abuse suffered by transgender women in detention facilities across the country. At the end of the report, Human Rights Watch also provided recommendations to Congress, the Department of Homeland Security, and Immigration and Customs Enforcement (ICE) on how to improve the safety of transgender individuals in detention. They asked Congress to bar ICE from holding transgender women in men's facilities and to bar ICE "from placing any immigration detainees in administrative segregation for indefinite periods as a form of protection or for any other reason." Additionally, they asked the DHS to expand and improve upon the 2015 Transgender Care Memorandum. Many LGBTQ activists and supporters comment that they shouldn't or don't have the right to detain those in the at-risk LGBTQ community until they have the capability to detain those included in this group without infringing on their human rights or jeopardizing their safety.
|Wikimedia Commons has media related to Immigration detention in the United States.|
- List of detention sites in the United States
- Illegal immigration to the United States
- History of U.S. immigration laws
- Immigration detention in Australia
- Family detention
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