REPORT ON IMMIGRATION IN THE UNITED STATES:  DETENTION AND DUE PROCESS

            I.         INTRODUCTION

1.                  In keeping with Article 58 of its Rules of Procedure, the Inter-American Commission on Human Rights (hereinafter “the Inter-American Commission,” “the Commission,” or “the IACHR”) is presenting this report as a diagnostic analysis of the human rights situation with respect to immigrant[1] detention and due process in the United States and to make recommendations so that immigration practices in that country conform to international human rights standards.

2.                  The United States hosts the largest number of international immigrants in the world.[2]  According to the International Organization for Migration (IOM), in 2005 the United States had a total of 38.4 million international migrants.  Many of those migrants came to the United States through formal and legal channels.  The Department of Homeland Security (DHS) estimates that as of January 2008 there were 12.6 million legal permanent residents (LPRs) in the United States;[3] another 1,107,126 were added in 2008.[4]  Every year, many legal permanent residents are granted U.S. citizenship.[5] In 2008, 1,046,539 persons became naturalized citizens.[6]  The United States is also one of the leading countries for granting asylum and resettling refugees.  In 2008, the United States granted asylum to 22,930 persons and resettled 60,108 refugees.[7]

3.                  According to government figures, as of January 2009, there were approximately 10.8 million undocumented immigrants living in the United States.[8]  Of those, some 4 million came after January 2000; the other 6.8 million arrived in the 1980s and 1990s.[9] Nearly half of all undocumented immigrants entered the United States legally, but remained in the country after their visas expired.[10]  Approximately 5 million children in the United States have at least one undocumented parent, 3 million of whom are U.S.-born citizens.[11]

4.                  Under U.S. immigration law, there are a number of ways an undocumented immigrant can regularize his or her status.  For example, an immigrant may seek asylum;[12] seek withholding of removal (non-refoulement);[13] qualify for adjustment of status,[14] qualify for cancellation of removal, [15]  qualify for a “T” visa as a victim of human trafficking,[16]  qualify for a “U” visa as a victim of domestic violence or other violent
crime,[17] seek a waiver of inadmissibility,[18] or qualify for Special Immigrant Juvenile Status.[19]  Some who are believed to be undocumented may even actually have derivative or acquired U.S. citizenship.[20]  Moreover, deportable LPRs who are detained likewise often have potential forms of relief to remain in the United States.

5.                  In an effort to control the influx of new immigrants, since the mid-1990s the United States stepped up efforts to detect, detain and deport undocumented immigrants and criminally-convicted legal immigrants, including LPRs.  In 1996, the U.S. Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Antiterrorism and Effective Death Penalty Act (AEDPA) which significantly expanded the use of mandatory detention without bond, added to the list of crimes that subject legal immigrants, including legal permanent residents (LPRs), to mandatory deportation, and generally created a more stringent approach to immigration policy.[21] 

6.                  In the aftermath of September 11, 2001 and with the passage of the Homeland Security Act of 2002, the new Department of Homeland Security (DHS) took responsibility for the duties of the former Immigration and Naturalization Services (INS).  Under the newly created DHS, the government established Immigration and Customs Enforcement (ICE) as the principal domestic immigration enforcement and detention agency.

7.                  The focus of this report is on ICE’s civil immigration operations.[22]  Since 2002, with the creation of DHS and ICE, the federal government has taken a stricter enforcement approach to civil immigration violations.  In a 2003 memorandum to its field office directors, the Office of Detention and Removal Operations (DRO), a subsection of ICE, announced “Operation Endgame,” a ten year strategic plan to achieve a “100% removal rate.” [23] Through a series of programs, including partnerships with state and local law enforcement, the number of those deported rose from 189,026 in FY2001 to 358,886 in FY2008.[24]  ICE detention of noncitizens practically doubled, from approximately 209,000 in FY2001 to 378,582 in FY2008.[25]

8.                  The IACHR was of the view that this increase in immigration-related detention warranted investigation to ascertain whether the immigration policies and practices were compatible with the United States’ international obligations in the area of human rights.  Pursuant to Article 18(g) of its Statute and Article 55 of its Rules of Procedure, the IACHR conducted a series of in loco observations to investigate the conditions under which immigrants are held in custody in the United States.  The Inter-American Commission drew upon other sources of information as well. 

9.                  With respect to the visits to detention centers, and based on the provisions of its Rules of Procedure that govern the “on-site observations” (articles 53 to 55), the IACHR filed a request with the Government of the United States seeking authorization for a visit to observe the conditions under which immigrants are held in detention.  The United States Government invited the Inter-American Commission to visit four detention facilities in the summer of 2008. However, the IACHR was unable to make the visits at that time because of the conditions that the United States Government set and to which the Inter-American Commission did not agree.[26]  

10.              In December 2008, the United States Mission to the Organization of American States contacted the IACHR to resume discussion of a possible visit to the immigrant detention centers in the country.  Steps were taken so that the Inter-American Commission was able to perform those visits according to its rules and practices.  In the week of July 20 to 24, 2009, a delegation from the IACHR visited detention centers in Arizona and Texas.  In all, the delegation visited two shelters for unaccompanied minors, one family detention facility, and three adult detention facilities.  The centers visited were the following:

§                     Southwest Key Unaccompanied Minor Shelter (Phoenix, Arizona)

§                     Florence Service Processing Center (Florence, Arizona)

§                     Pinal County Jail (Florence, Arizona)

§                     T. Don Hutto Family Residential Center (Taylor, Texas)

§                     Willacy Detention Facility (Raymondville, Texas)

§                     International Education Services Unaccompanied Minor Shelter (Los Fresnos, Texas)

11.              The IACHR would like to thank ICE and the Office of Refugee Resettlement (ORR) for the cooperation they provided to enable the Inter-American Commission to conduct the mission and for their willingness to answer the delegation’s questions. 

12.              Nevertheless, the IACHR denounces the decision of the Sheriff of Maricopa County, in Phoenix, Arizona, who refused to grant access to the delegation.  While the IACHR is aware that the Maricopa County jail houses persons arrested under an agreement that allows the state to enforce federal civil immigration laws, it is a universally accepted principle of international human rights law that States must comply with their international obligations in good faith and may not invoke internal rules as a pretext for noncompliance.  This good faith principle implies that States must open their doors to agencies that monitor the observance of human rights, so that those agencies can check the situation and properly perform their mission.

13.              As for other sources, the Inter-American Commission took into account the information received during the thematic hearing held in October 2007, during its 130th regular session. There, an advocacy group for immigrants in the United States informed the IACHR of alleged violations of human rights in the detention of migrant families, unaccompanied children, asylum seekers and other vulnerable immigrant groups.[27]

14.              The Inter-American Commission also consulted experts on immigration in the United States, international organizations, attorneys and defenders of the rights of migrant persons, to get their views on the topic of this report.  The IACHR also spoke with former detainees and their families and sent out a questionnaire for the State, persons and civil society organizations in various parts of the country to answer.

15.              Thereafter, the Inter-American Commission held two more thematic hearings on problems of enforcement of immigrations laws and due process for detained immigrants  in the United States, as well as a working meeting on detainees with mental disabilities or disorders.[28]  The IACHR did an exhaustive analysis of the research and reports of State agencies, nonprofit organizations and the media to get a broader perspective on the concerns regarding current policies and practices in immigrant detention and due process in the United States.[29]

16.              Following the IACHR’s visits to the immigrant detention facilities, ICE organized two briefings for the Inter-American Commission in October 2009: one that concerned ICE’s plans to reform the immigrant detention system, and another on changes to the local enforcement program under the 287(g) agreement, which will be examined later in this report.

17.              Notwithstanding the more detailed findings included throughout the body of this report, one of the IACHR’s main concerns is the increasing use of detention based on a presumption of its necessity, when in fact detention should be the exception.  The United States Supreme Court itself has upheld the constitutionality of mandatory detention in immigration cases that have not been decided, even though the violations being alleged are civil in nature and despite the loss of liberty that detention presupposes.[30]

18.              As will be explained, the Inter-American Commission is convinced that in many if not the majority of cases, detention is a disproportionate measure and the alternatives to detention programs would be a more balanced means of serving the State’s legitimate interest in ensuring compliance with immigration laws.  The IACHR is disturbed by the rapid increase in the number of partnerships with local and state law enforcement for purposes of enforcing civil immigration laws.  The Inter-American Commission finds that ICE has failed to develop an oversight and accountability system to ensure that these local partners do not enforce immigration law in a discriminatory manner by resorting to racial profiling and that their practices do not use the supposed investigation of crimes as a pretext to prosecute  and detain undocumented migrants.

19.              For those cases in which detention is strictly necessary, the IACHR is troubled by the lack of a genuinely civil detention system, where the general conditions are commensurate with human dignity and humane treatment, and featuring those special conditions called for in cases of non-punitive detention.   The Inter-American Commission is also disturbed by the fact that the management and personal care of immigration detainees is frequently outsourced to private contractors, yet insufficient information is available concerning the mechanisms in place to supervise the private contractors.

20.              The IACHR is also disturbed by the impact that detention has on due process, mainly with respect to the right to an attorney which, in turn, affects one’s right to seek release.  To better guarantee the right to legal representation and, ultimately, to due process, stronger programs offering alternatives to detention are needed and the Legal Orientation Program must be expanded nationwide.  The Inter-American Commission is particularly troubled by the lack of legal representation provided or facilitated ex officio by the State for cases of unaccompanied children, immigrants with mental disabilities and other persons unable to represent themselves.