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Jailed Without Justice Report Immigration Detainees, Amnesty International, 2009

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JAILED
WITHOUT
JUSTICE
Immigration Detention in the USA

A Chinese asylum seeker at a jail in Virginia. ©Steven Rubin.

JAILED WITHOUT JUSTICE Immigration Detention in the USA

CONTENTS
1. Introduction

3

2. Immigrants’ Rights are Human Rights

11

3. Right to Review of Detention and Options for Release

13

3.1 Immigrants and asylum seekers detained at the border

13

3.2 Immigrants and asylum seekers apprehended inside the United States

15

3.2.1 Immigration Judge Review

16

3.2.2 Exorbitant Bonds

17

3.3 Mandatory Detention
3.3.1 People Who Should Not Be in Detention at All But Are Subject to Mandatory Detention

18
20

3.4 Indefinite Detention

24

3.5 Right to Habeas Corpus Review

25

4. Alternatives to Detention

27

5. Conditions of Detention

29

5.1 Access to Assistance and Support: Safeguards Relating to Detention

30

5.1.1 Access to lawyers

30

5.1.2 Access to information and other forms of assistance in detention

32

5.1.3 Translation and Interpretation Services

34

5.1.4 Access to attorneys and relatives

34

5.1.5 Access to telephones

35

5.2 Conditions of Detention

37

5.2.1 Housing with Detainees Convicted of Crimes

37

5.2.2 Inappropriate and excessive use of restraints

37

5.2.3 Medical Treatment

39

5.2.4 Exercise

41

5.2.5 Physical and Verbal Abuse

42

6. Recommendations

44

Endnotes

47

Scope and Methodology, A Note on Terminology, List of Terms/Abbreviations

Inside back cover
1

After suffering torture and five years imprisonment in an Albanian
concentration camp due to anti-communist activities, Mr. M was
granted asylum and had been living in the United States for over 12
years when he was detained by immigration authorities and placed in
mandatory detention. At the time of his detention in 2004, Mr. M had
been a lawful permanent resident since 1992 and he was married with
three US citizen children. Immigration and Customs Enforcement (ICE)
charged Mr. M with being deportable from the US due to convictions
related to purchasing a stolen vehicle and filing false information
in a home loan application. He spent more than four years in detention
fighting deportation by seeking protection under the Convention
Against Torture, fearing that he would be tortured if returned.1 Mr.
M’s wife and children lived in San Diego, California, hundreds of
miles from where he was detained, so over four years they saw each
other only four or five times. His wife told Amnesty International
she was struggling to raise their children alone. Having lost the
lease to their small business, she said she didn’t know how they would
survive, yet she could not bring herself to tell her husband because
she did not want to further erode his spirit. At the time Amnesty
International interviewed the family, Mr. M was considering giving
up his case because he did not know if or when he would be released
from detention. According to his attorney, Mr. M was finally released
on bond in September 2008 and is extremely happy to be back with his
family awaiting final determination of his case.2

Amnesty International interviews with Mr. M’s wife and
attorney (identities withheld), June 2008.3

2

JAILED WITHOUT JUSTICE Immigration Detention in the USA

1

INTRODUCTION

“WHETHER I’M DOCUMENTED OR NOT, I’M A HUMAN BEING.
I USED TO THINK BIRDS IN A CAGE WERE SO PRETTY BUT NO
ONE SHOULD BE DEPRIVED OF FREEDOM – NO ONE SHOULD
BE CAGED.”
Amnesty International interview with former immigration detainee
(identity withheld), June 2008

Migration is a fact of life. Some people move to

More than 300,000 men, women and children

new countries to improve their economic situation

are detained by US immigration authorities each

or to pursue their education. Others leave their

year.7 They include asylum seekers, torture

countries to escape armed conflict or violations of

survivors, victims of human trafficking, longtime

their human rights, such as torture, persecution,

lawful permanent residents, and the parents of

or extreme poverty. Many move for a combination

US citizen children. The use of detention as a

of reasons. Governments have the right to

tool to combat unauthorized migration falls short

exercise authority over their borders; however,

of international human rights law, which contains

they also have obligations under international law

a clear presumption against detention. Everyone

to protect the human rights of migrants, no matter

has the right to liberty, freedom of movement,

what prompted an individual to leave his or her

and the right not to be arbitrarily detained.

home country.
The dramatic increase in the use of immigration
This report focuses on the human rights violations

detention has forced US immigration authorities

associated with the dramatic increase in the

to contract with approximately 350 state and

use of detention by the United States as an

county criminal jails across the country to house

immigration enforcement mechanism. In just

individuals pending deportation proceedings.

over a decade, immigration detention has tripled.

Approximately 67 percent of immigration detainees

In 1996, immigration authorities had a daily

are held in these facilities, while the remaining

detention capacity of less than 10,000.4 Today

individuals are held in facilities operated by

more than 30,000 immigrants are detained each

immigration authorities and private contractors.8

5

day, and this number is likely to increase even

The average cost of detaining a migrant is $95

further in 2009.6

per person, per day.9 Alternatives to detention,
3

“IF YOU DON’T HAVE ENOUGH EVIDENCE TO
CHARGE SOMEONE CRIMINALLY BUT YOU
THINK HE’S ILLEGAL, WE [ICE] CAN MAKE
HIM DISAPPEAR.”
James Pendergraph, Former Executive director of the ICE Office
of State and Local Coordination, August 21, 200819

which generally involve some form of reporting,

abuses against immigrants know that they

are significantly cheaper, with some programs

are unlikely to be held accountable, because

costing as little as $12 per day.10 These alter-

unauthorized immigrants are often reluctant to

natives to detention have been shown to be

turn to the authorities, fearing the possibility of

effective with an estimated 91 percent appearance

arrest or deportation.

rate before the immigration courts.11 Despite the
effectiveness of these less expensive and less

Politicians, public officials, and the media have

restrictive alternatives to detention in ensuring

a significant impact on the public’s perception

compliance with immigration procedures, the

of immigrants and their rights. Much of the

use of immigration detention continues to rise

public debate about migration in the United

at the expense of the United States’ human

States, particularly in the wake of the attacks

rights obligations.

of September 11, is framed around issues

Approximately 1.8 million people migrate to the

primetime host of a national news channel

of national security and the economy. One
United States every year.12 The vast majority

stated, “Illegal aliens…not only threaten our

have official authorization to live and work in the

economy and security, but also our health and

United States. Less than a quarter do not have

well-being….”18 Such comments contribute to

permission to enter the United States, and they

a climate of fear and create the impression that

live and work in the country as unauthorized

immigrants do not—and should not—have any

13

immigrants. The US government estimates

rights at all.

that as of January 2007, there were almost 12
million unauthorized immigrants living in the
14

United States. They come from countries

authorization is a civil violation, not a crime. The

around the world—the top five countries of

Department of Homeland Security (DHS) has

origin are Mexico, El Salvador, Guatemala,

broad discretion to apprehend individuals it

the Philippines, and China.15 Unauthorized

suspects of immigration violations. Individuals

immigrants often live in the shadows and are

may be apprehended at the border, during

at heightened risk of exploitation, discrimination

employment or household raids, as a result of

and abuse. They often work in degrading

traffic stops by local police, or after having been

conditions16 and are frequently denied access

convicted of a criminal offense.

to many forms of healthcare, housing, and
other services.17 Individuals committing
4

Entering or remaining in the United States without

JAILED WITHOUT JUSTICE Immigration Detention in the USA

A 34-year-old Mexican mother of three told Amnesty International
that she was arrested at her home in front of her 3-year-old
autistic US citizen son by local police and jailed for 24
days. According to her attorney, she was arrested for failure
to appear for a petty theft offense. She was taken to jail
“handcuffed to other people on the way” and interrogated that
evening by an ICE officer. She told Amnesty International that
she does not speak English and had no idea why she was being
held. She also told Amnesty International that ICE officers
said that it was her fault she was being separated from her
family and she should just accept an order of deportation.
After nearly three weeks in detention with no indication of
when she would able to return to her family, she tried to kill
herself. She told Amnesty International “I started feeling
a nervous breakdown—can you imagine, being locked up…the
kids needed me… I started hanging myself. I don’t know what
happened, but everything started turning dark.” When officers
responded, “[I]nstead of helping me they handcuffed me” and
took her to another cell. She was later released on bond and
is still awaiting final determination of her case.

Amnesty International interview with former
immigration detainee (identity withheld), June 2008.

Immigration officers (ICE agents) stopped a father

within the United States. If DHS has a reasonable

walking his daughter to school in California in

belief that an individual does not have permission

2008. The officers asked the young girl, not more
than 8 years old, to translate their questions about
her father’s immigration status, as he did not

to enter or remain in the United States, then that
person may be placed in “removal proceedings,”
which means the government is seeking to deport
him or her from the United States.

speak English. Immigration authorities later took
her father away.20

Individuals apprehended by immigration authorities
often do not know what is happening and may

There are two divisions within DHS tasked with

not understand what their rights are. Many may

immigration enforcement: Customs and Border

accept immediate deportation even though they

Protection (CBP) is responsible for enforcement

may not have had an opportunity to consult

at the border, and Immigration and Customs

with an attorney and they may not actually be

Enforcement (ICE) is responsible for enforcement

deportable.21 A person may be eligible to remain
5

in the United States for a variety of reasons,

For example, according to a 2003 study, asylum

including a well-founded fear of persecution in

seekers who were eventually granted asylum

his or her home country, having a US citizen

spent an average of 10 months in detention with

spouse, or exceptional hardship caused to his or

the longest reported period being 3.5 years.25

her US citizen children. Amnesty International

Amnesty International has documented several

has identified more than a hundred cases in the

cases, detailed in this report, in which individuals

past ten years in which US citizens and lawful

have been detained for four years. Individuals

permanent residents have incorrectly been placed

who have been ordered deported may languish

into removal proceedings.22

in detention indefinitely if their home country is

Individuals subject to deportation still have human

diplomatic relations with the United States.26

unwilling to accept their return or does not have
rights. International law requires that deportation
procedures follow due process and conform to

An important safeguard against arbitrary detention

international human rights standards. Like any

is the ability of an individual to challenge his or

other circumstance, detention pending removal

her detention before an independent judicial

proceedings must be justified as a necessary and

body. The US criminal justice system provides

proportionate measure in each individual case,

individuals detained and charged with criminal

and should only be used as a measure of last

offenses with the opportunity to challenge their

resort and be subject to judicial review.

detention before a court and provides legal
counsel for individuals who cannot afford to pay

While ICE reported an average detention stay

themselves. However, individuals detained on

of 37 days in 2007,24 Amnesty International

the basis of civil immigration violations are not

found that immigrants and asylum seekers may

provided with such safeguards. Many individuals

be detained for months or even years as they

are held in immigration detention without access

go through deportation procedures that will

to an immigration judge or judicial body and have

determine whether or not they are eligible

to represent themselves if they cannot afford a

to remain in the United States.

lawyer. Factors such as whether an individual is
apprehended at the border, whether an individual

“FREEDOM FROM
IMPRISONMENT—FROM
GOVERNMENT CUSTODY,
DETENTION, OR OTHER FORMS
OF PHYSICAL RESTRAINT—
LIES AT THE HEART OF THE
LIBERTY [THE DUE PROCESS]
CLAUSE PROTECTS.”

is apprehended within the United States, and
whether an individual has been convicted of
certain crimes may determine whether that
individual is detained and what kind of review,
if any, takes place.
In the case of individuals who are apprehended
at the border, an immigration officer makes
decisions about whether or not the person will
remain in detention—these individuals are not
entitled to a review of their detention by an
immigration judge.27 Those apprehended inside
the United States are entitled to a review by an
immigration judge. However, this review does
not always take place, or does not take place in
a timely manner.

US Supreme Court 23

6

JAILED WITHOUT JUSTICE Immigration Detention in the USA

Individuals who have lived in the US for years

Geovanny Garcia-Mejia, 27, from Honduras,

can be subject to “mandatory detention,” meaning

died on March 18, 2006. He was detained at

there is no opportunity for an individual hearing to
determine whether he or she should be released,
and deported for minor crimes they committed

the Newton County Correctional Center in Texas.
He had been placed in a medical unit, where

years ago. Thousands of individuals every year

he was found writing on the floor with his blood,

are subject to mandatory detention while

internal records show. But he was returned to

deportation proceedings take place. It is not

the jail’s general population after a psychologist

known exactly how many individuals are subject

wrote in his chart, “No idea why he is in suicide

to mandatory detention, and DHS did not respond
to a request from Amnesty International to provide
this data. US citizens and lawful permanent

cell.” He hanged himself 12 days later, on
his 27th birthday. The local sheriff concluded

residents have been incorrectly subject to

that guards who should have been checking

mandatory detention, and have spent months or

him every 15 minutes “made no rounds through

years behind bars before being able to prove they

the night... [I]t goes without saying that the

are not deportable from the United States.

incident could have been avoided.”28

The ability to access the outside world is an
essential safeguard against arbitrary detention.

In September 2008, ICE announced the

However, Amnesty International documented

publication of 41 new performance-based

significant barriers immigrants face in accessing

detention standards, which are to be

assistance and support while in detention.

implemented over 18 months and will take full

Problems included lack of access to legal counsel

effect in all facilities housing ICE detainees by

and consulates; lack of access to law libraries

January 2010.29 Amnesty International welcomes

along with inadequate access to telephones; and

this step toward improving conditions in immigration

frequent and sudden transfers of detainees to

detention; however these are still only guidelines

facilities located far away from courts, advocates,

and are not legally enforceable. Amnesty

and family.

International findings indicate that conditions of
detention in many facilities do not meet either

Amnesty International also documented

international human rights standards or ICE

pervasive problems with conditions of detention,

guidelines.30 There is an urgent need to ensure

such as commingling of immigration detainees

that all facilities housing immigration detainees

with individuals convicted of criminal offenses;

comply with international human rights law and

inappropriate and excessive use of restraints;

standards. Ensuring that detention standards are

inadequate access to healthcare, including

legally binding, and creating a mechanism for

mental health services; and inadequate access

independent oversight of their implementation,

to exercise. In 2000, immigration authorities

would better protect the human rights of

introduced detailed detention standards for

immigrants in detention in the United States.

facilities housing immigration detainees,
covering issues such as access to attorneys
and conditions of detention. However, these
guidelines are not binding regulations and are
not legally enforceable.

7

A Vietnamese immigrant detainee held at a facility in Washington state.
©Steven Rubin.

8

JAILED WITHOUT JUSTICE Immigration Detention in the USA

KEY
RECOMMENDATIONS
1.

The US Congress should pass legislation

3.b All decisions to detain should be subject

creating a presumption against the detention

to formal and regular review by a judicial body.

of immigrants and asylum seekers and ensuring

Measures must be immediately taken to

that it be used as a measure of last resort.

ensure that the discretion currently exercised
by individual ICE officers to detain immigrants

2.

be subject to formal judicial review.
The US government should ensure that

alternative non-custodial measures, such
as reporting requirements or an affordable

3.c Immigrants should be advised of the

bond, are always explicitly considered

release options available to them and how

before resorting to detention. Reporting

to access them.

requirements should not be unduly onerous,
invasive or difficult to comply with, especially
for families with children and those of limited

4.

financial means. Conditions of release should

the adoption of enforceable human rights

be subject to judicial review.

detention standards in all detention facilities

The US government should ensure

that house immigration detainees, either

3.

through legislation or through the adoption
The US Congress should pass

of enforceable policies and procedures by

legislation to ensure that all immigrants and

the Department of Homeland Security. There

asylum seekers have access to individualized

should be effective independent oversight to

hearings on the lawfulness, necessity, and

ensure compliance with detention standards

appropriateness of detention.

and accountability for any violations.

3.a Detention should be used only if the US
government demonstrates in each individual
case that it is a necessary and proportionate
measure. No one should be subject to
“mandatory detention.”

9

Detained immigrants inside the meal room at a facility in California.
©Steven Rubin.

10

JAILED WITHOUT JUSTICE Immigration Detention in the USA

2

IMMIGRANTS’ RIGHTS
ARE HUMAN RIGHTS

EVERYONE HAS THE RIGHT TO LIBERTY AND SECURITY
OF PERSON. NO ONE SHALL BE SUBJECTED TO ARBITRARY
ARREST OR DETENTION.
Article 9 of the United Nations International Covenant on Civil and Political Rights

As a general rule, Amnesty International is

Political Rights (ICCPR) clearly sets out the right

opposed to the use of detention for the purposes

to be free from arbitrary detention.32

of migration control. Everyone has the right to
liberty and security of the person, including the

Detention should only be used as a measure of
last resort; it must be justified in each individual

protection from arbitrary arrest and detention,

case and be subject to judicial review. Detention

regardless of legal status. Detention of migrants

is only appropriate when authorities can

will only be lawful when the authorities can

demonstrate in each individual case that it is

demonstrate in each individual case that it is

necessary and proportionate to the objective

necessary and proportionate to the objective
being achieved, that alternatives will not be

being achieved and on grounds prescribed by
law, and that alternatives (such as reporting
requirements, bail or financial deposits) would

effective, that it is on grounds prescribed by

not be effective. The U.N. Working Group on

law, and where there is an objective risk of the

Arbitrary Detention has called on governments

person absconding.

to ensure that “alternative and non-custodial
measures, such as reporting requirements,
should always be considered before resorting

All immigrants irrespective of their legal status,

to detention.”33

have fundamental human rights, including
the right to liberty and freedom from arbitrary
detention.

31

International standards, including

A limited number of specific purposes are
recognized as legitimate grounds for detention

instruments to which the United States is a

under international standards, including verifying

party, contain a strong presumption against the

identity, protecting national security or public

detention of immigrants and asylum seekers. For

order, and preventing a person from absconding

example, the International Covenant on Civil and

following an objective assessment of flight risk.34
11

The U.N. Human Rights Committee has stated

serious criminal offenses, can raise human

that detention is arbitrary if no consideration is

rights concerns, for example, when a person

given to the necessity of detaining an individual

has spent the majority of his or her life in their

and that detention should not continue beyond

country of residence and has no meaningful links

the period for which a government can provide

with the country of origin, when it results in family

appropriate justification.35 The U.N. Working

separation or when it places a person at risk of

Group on Arbitrary Detention has explicitly

torture or other serious human rights violations.40

stated that where the detention of unauthorized

Under the International Covenant on Civil and

immigrants is mandatory, regardless of their

Political Rights (ICCPR), the Convention against

personal circumstances, it violates the prohibition

Torture,41 and customary international law,42 the

of arbitrary detention in Article 9 of the Universal

United States government is under an obligation

Declaration of Human Rights (UDHR) and

not to return individuals to a situation in which

Article 9 of the International Covenant on Civil

he or she would be at risk of torture or other

and Political Rights.36 International law requires

serious human rights abuses: the principle of

that any person detained should be provided

non-refoulement.

with a prompt and effective remedy before an
independent judicial body to challenge the
37

The United States is party to the 1967 Protocol

decision to detain him or her, and that every

Relating to the Status of Refugees which sets

decision to keep a person in detention should

out the rights of refugees seeking protection and

be open to review periodically.38

is a follow up to the 1951 Convention Relating
to the Status of Refugees. However, it is not

International law and standards also require that

yet party to the International Convention on the

the conditions of detention are humane and that

Protection of the Rights of All Migrant Workers

the human rights of detainees are respected.

and Members of their Families which came into

Fundamental human rights while detained include

force on July 1, 2003. The Migrant Workers

protection against torture, cruel, inhuman or

Convention recognizes the human rights of all

degrading treatment; access to medical care;

migrant workers and their families regardless of

exercise; and the ability to communicate with the

their legal status in the host country, including

outside world including consulates, attorneys

the right to liberty43 and to adequate conditions

and family.39

of work.44 Amnesty International calls upon the
US government to sign and ratify the Migrant

Immigrants and asylum seekers subject to
deportation are also entitled to procedural
safeguards including the ability to challenge the
decision to deport, access to legal counsel and
interpretation services, and access to a review—
ideally a judicial review—of a negative decision.
Deportation of non-nationals, including those
who have been charged with or convicted of

12

Workers Convention.

JAILED WITHOUT JUSTICE Immigration Detention in the USA

3

RIGHT TO REVIEW OF DETENTION
AND OPTIONS FOR RELEASE

“SOMETIMES I WANTED TO GIVE UP BECAUSE I COULDN’T DEAL
WITH WHAT I WAS GOING THROUGH.”
Amnesty International interview with former immigration detainee and torture
survivor who was granted asylum (identity withheld), June 2008.

Mr. N, a Buddhist monk from Tibet, fled to the

of custody review, if any, that is available to detained

US after he had been arrested, incarcerated,

immigrants. The type of custody review available

and tortured twice on the basis of his religious
beliefs and political expressions in support of

depends on whether someone was apprehended
at the border or within the United States and whether
or not he or she has been convicted of certain crimes.

Tibetan independence. He arrived in New York
and was immediately placed into immigration

In some cases, the continued detention of individuals

detention. Mr. N’s attorney filed a parole

may amount to arbitrary detention in contravention

application that included an affidavit from a

of international law. There is an urgent need to

member of the American Tibetan community
who pledged to provide Mr. N lodging and ensure
his appearance at any hearings. During Mr. N’s

ensure that all individuals subject to immigration
detention receive a custody assessment that
complies with international law to avoid the arbitrary
detention of immigrants and asylum seekers.

ten-month detention, the government provided
no response to this request, and Mr. N was never
given the opportunity to argue for his release

Amnesty International found that the detention of
immigrants and asylum seekers puts considerable
pressure on individuals to abandon potentially

before a judge. Mr. N was granted permission

valid claims to remain in the United States.

to remain in the US in September 2007.45

Amnesty International’s findings indicate that
immigrants can be detained in the United States for

3.1 IMMIGRANTS AND ASYLUM SEEKERS
DETAINED AT THE BORDER

months or years without any form of meaningful
individualized review of whether their detention is

Individuals arriving at US borders without proper

necessary. There is a lack of uniformity in the type

documentation may be detained for months, and
13

A 26-year-old Chinese woman cried as she told AI researchers
that she fled persecution after she and her mother were
beaten in their home for handing out religious fliers. She
arrived in the United States in January 2008 seeking asylum
and was detained at the airport before being moved to a county
jail. No one explained to her why she was being detained.
An ICE Field Office Director decided that she should remain
in detention unless a bond of $50,000 was paid. Neither her
uncle in the United States nor her family in China had
sufficient funds to meet the required amount. Her attorney
told Amnesty International that the immigration judge
indicated that he did not have the authority to release her
from detention or change the amount of the bond set. Family
members in the United States were finally able to raise the
money needed to secure her release in December 2008, after
she had spent nearly an entire year in detention.

Amnesty International interviews with a detained asylum
seeker and her attorney (identities withheld), June 2008.

in some cases years, and are not entitled to any

“AS FAR AS POSSIBLE, THE

DETENTION OF FOREIGNERS
WHO ENTER THE COUNTRY
WITHOUT THE NECESSARY
VISA OR WHO REMAIN IN
THE COUNTRY ONCE THEIR
VISA HAS EXPIRED SHOULD
BE AVOIDED.”

form of detention review by an immigration judge.
Under US law, all individuals apprehended at the
border “shall be detained” pending deportation
proceedings.47 This includes asylum seekers
fleeing persecution who arrive at the US border
seeking protection,48 and in some instances it also
includes lawful permanent residents who left the
United States and may find themselves barred
from re-entry.49
US law does provide that these individuals may
be released on parole on a case-by-case basis for
“urgent humanitarian reasons” or for “significant
public benefit” where the individual presents
neither a security risk nor a risk of absconding.50

UN Working Group on Arbitrary
Detention46

14

In practice, an individual immigration officer (ICE
Field Office Director) decides whether someone is
released from detention and the conditions of any

JAILED WITHOUT JUSTICE Immigration Detention in the USA

such release, such as the amount of bond to be
posted or reporting requirements.
Previously, guidelines provided for the release

Mr. A fled to the USA from
India in 1999 after being

of asylum seekers who satisfied certain criteria,

severely tortured and jailed

including establishing identity and community

multiple times due to his

ties. However, in November 2007, ICE issued

political activities. In

more restrictive guidelines that limited the ability
of asylum seekers to receive parole.51 Department
of Justice regulations specifically state that

2006, he was arrested and
detained by ICE and required

immigration judges do not have jurisdiction

to pay a $15,000 bond. His

to review decisions made by ICE Field Office

wife contracted with a bail

Directors involving individuals apprehended at

bondsman to pay the bond and

the border.52

Mr. A applied for asylum.

The discretionary nature of the parole decision

Over two years he appeared

making process means that an individual’s

regularly for all immigration

chances of release may depend entirely on

court hearings, but at the

where he or she is detained. Rates of release

end of a hearing in which

of individuals seeking asylum range from 4

he had testified for hours

percent in Newark, New Jersey to 98 percent
in Harlingen, Texas in 2004.53 Advocates told
Amnesty International that some ICE offices have

about the torture he suffered
in India, he was again arrested

unwritten “no release” policies, rendering the ICE

and detained by ICE. At a

officer’s review meaningless.

bond hearing before an
immigration judge he was

The parole process concentrates extraordinary
power in the hands of individual ICE officers
and lacks effective oversight and review, in

ordered released upon payment
of an $80,000 bond. Mr. A’s

contravention of international human rights

family and friends pooled

standards. To protect against arbitrary decisions

their resources, using

and the abuse of discretionary power, all decisions

credit cards and their homes

regarding the use of detention, as well as

as collateral in order to

alternatives to detention, must be subject to
review by a judicial or other competent and
independent authority.

secure his release. Mr. A
was eventually granted
asylum protection.

3.2 IMMIGRANTS AND ASYLUM SEEKERS
APPREHENDED INSIDE THE UNITED STATES
A different set of rules applies to individuals

Amnesty International
interview with a former
immigration detainee

apprehended within the United States. US

(identity withheld),

law provides for the release of all persons

June 2008.

apprehended inside the United States, on a
minimum bond of $1,500 or on conditional
15

Samuel Komba Kambo ©AP Photo/Gloria Ferniz.

parole, as long as he or she is not subject to

some immigration judges may not be aware of all

mandatory detention on certain criminal or

of the release options that are available to them.55

terrorism-related grounds.54 An individual ICE
Field Office Director again makes the initial

3.2.1 Immigration judge review

decision regarding whether someone remains in

In order to be considered for release, an

detention or is released. In these cases, however,

immigrant or asylum seeker must show that he or

individuals may ask for a review by an immigration

she does not present a danger to persons or

judge. This review is not automatic – an individual

property, is not a threat to national security, and

detainee must request it. People who do not have

does not pose a flight risk.56 After the initial

representation or other assistance may not even

custody and/or bond determination by ICE, an

realize that it’s possible to make such a request,

immigrant detained within the United States may

and so lose one of only a few options for securing

challenge this decision and apply for a bond

release from detention.

re-determination before an immigration judge.57 If
an individual is eligible for release on bond, an

Reports to Amnesty International indicate that

immigration judge may consider factors such as

increasingly, immigration judges are not releasing

employment history in setting the amount of bond.

people on bond; that in many cases the bond

16

is set too high; and even if bond is granted and

According to the Executive Office for Immigration

an immigration judge orders an individual to

Review (EOIR), in 2006 immigration judges in the

be released, immigration authorities have the

United States declined to set a bond in 14,750

authority to invoke an “automatic stay,” which

cases. In 2007, that number increased to 22,254,

means that an individual remains in detention

and in the first five months of 2008 immigration

pending a lengthy administrative review process.

judges had already refused to set bond in 21,842

In addition, Amnesty International found that

cases.58 Estimates of the number of bond cases

JAILED WITHOUT JUSTICE Immigration Detention in the USA

heard each year vary considerably; for example,

pending review by the Board of Immigration

EOIR data provided to Amnesty International

Appeals (BIA), which determines whether the

said that 273,139 bond decisions were made

immigration judge properly set bond. Amnesty

in 2007,59 but the Office of Planning, Analysis,

International was told by advocates that in some

and Technology reported in its annual statistical

jurisdictions, ICE routinely denies bond so that it

update that just 42,171 bond re-determination

may later invoke this “automatic stay” authority.

hearings were completed.

60

Thus, it is impossible

to assess the percentage of people being denied

3.2.2 Exorbitant bonds

bond out of the total number of those requesting

Even in those cases in which an immigration

a bond redetermination. It is important that

judge sets bond, immigrants and asylum seekers

comprehensive and accurate data is collected

are often unable to secure release because they

and made public.

are unable to pay the bond. If they do, they may
find themselves and their families in significant
debt due to exorbitant bonds. If an immigration

Sam Kambo, married with four US citizen children,

judge declines to release someone on his own

had been living in the United States for 12

recognizance, the minimum bond that may be

years and was applying to become a lawful
permanent resident, when he was detained in

set by an immigration judge is $1500,63 but
bonds are regularly set at much higher rates.
Across the United States, the average immigration

October 2006 by immigration authorities and

bond is $5,941.64 In New York, the average is

charged with taking part in politically motivated

$9,831, and in at least eight other jurisdictions

executions in his native Sierra Leone. In June

the average is over $6,000. One immigration

2007, an immigration judge found that there

judge told Amnesty International that he always

was “no credible evidence” to tie him to crimes

sets the bond of Chinese nationals who are
believed to have been smuggled into the US at

in Sierra Leone and ordered him released from

$25,000.65 Decisions related to bond should not

immigration detention on bond; however, ICE

be based on an individual’s nationality or manner

immediately appealed this determination and

of entry. They should be based on an individual’s

Mr. Kambo remained in detention. “Where’s

specific circumstances and whether the person

Papa going?” Seth Kambo (aged 4) asked as his
father was led back to jail in handcuffs. A US

presents a flight or security risk.
Unauthorized immigrants work for wages that are

District Court judge finally ordered immigration

often below the national average and like many

authorities to release Mr. Kambo in October

families in the United States, immigrant families

2007 nearly one year after he was first taken

struggle to pay bills and support themselves.66

into detention. The US government has appealed

Many immigrants told Amnesty International that
they were unable to pay bonds and were forced

his release.61

to use bail bondsmen, who regularly charge 15
percent to 20 percent of the bond amount.67

Even when an immigration judge has ordered

This fee is paid up front or in monthly increments.

someone released, ICE may continue to keep

Even when an immigrant wins a case before the

that person in detention. ICE retains the authority

immigration court, it may take months for ICE to

to “automatically stay” an immigration judge’s

prepare the paperwork needed to be released

decision if an ICE officer initially denied bond

from a contract with a bail bondsman. In the

or set a bond of at least $10,000.

62

This means

that the person concerned remains in detention

meantime, the immigrant is required to continue
making interest payments.
17

Having a lawyer can impact whether or not an

for certain crimes, including minor, non-violent

individual remains in detention while his or her

crimes (such as receiving stolen property)

case is ongoing. For example, one study

committed years ago. These individuals are

conducted in New York City found that the

subjected to mandatory detention when they

likelihood of having a lower bond set by an

are placed in deportation proceedings and

immigration judge was increased if an individual

do not receive any form of custody review.

was represented by an attorney.

68

Many individuals who did not serve any time
in prison for their offenses find that they are
immediately locked up and are not entitled to any

An immigration judge in New York set a

individualized determination as to whether they

$30,000 bond for a man whose mother is a US

pose a danger or a flight risk that would justify

citizen. He had lived in the US since 1992,
maintained a good employment record, and had

their detention pending deportation proceedings.
It is believed that thousands of individuals are
subject to mandatory detention every year: the

no known criminal charges. He was not

exact number of people impacted is not known as

represented by an attorney at the bond hearing

the DHS does not publish this data.74

and waived his right to appeal.69
In 1996 the US significantly expanded the
While there is nothing in the Immigration and

categories of individuals who would be subject to

Nationality Act or regulations that would preclude

mandatory detention to include a person convicted

immigration judges from releasing individuals

of a variety of crimes, including non-violent

without a monetary bond (for example, releasing

misdemeanor convictions without any jail

someone on his or her own recognizance), a number

sentence, and anyone considered a national

of attorneys told Amnesty International that

security or terrorist risk.75 If already in the United

immigration judges will not do so as a general

States, a person is subject to mandatory detention

rule.

70

Indeed, a number of immigration judges

if he or she is suspected of being a national

with whom Amnesty International spoke expressed

security or terrorism concern, or is charged under

confusion about whether or not they had the

immigration law with two “crimes involving moral

authority to release someone without monetary

turpitude,” an “aggravated felony,” a firearms

bond.71 Information provided to Amnesty

offense, or a controlled substance violation. If he

International by the Executive Office for Immigration

or she is “seeking admission” into the US, even

Review, however, indicates that immigration
judges do have this authority. For example,
immigration courts released 2,442 people on their
own recognizance in 2006 and 3,066 people in
2007.72 There are, however, wide regional variations:
immigration courts in Houston, Texas, for example,
released 462 people without monetary bond in
2006, whereas immigration courts in New York
City and Las Vegas released no one on this basis.73

3.3 MANDATORY DETENTION
Immigrants–including those who have lived in
the US for most of their lives - can be deported
18

“CAN YOU

PLEASE BRING
MY DAD HOME?”
David age 7 in a letter to immigration
court, after not having seen his lawful
permanent resident father for over
four years.

JAILED WITHOUT JUSTICE Immigration Detention in the USA

A child in Georgia, 2 years old, who was born a U.S. citizen. His father was
deported to Mexico, and his mother fled when ICE raids began in her state.
©AP Photo/Stephen Morton.

as a lawful permanent resident, he or she is

constituted two crimes of moral turpitude, a

subject to mandatory detention if charged under

decision that led to his deportation.78

immigration law with one crime involving moral
turpitude, prostitution, domestic violence, or if
he or she has received any number of criminal

Trevor Drakes, a native of Guyana, came to

sentences totaling five years or more.76

the United States when he was 11 years old.
A lawful permanent resident, he was arrested

The terms aggravated felony and crime involving
moral turpitude are broad and confusing and

after signing traffic tickets using a false

subject to constant interpretation by the immigration

name and later pleaded guilty to two counts

courts, Board of Immigration Appeals, and the

of forgery. On March 2, 1999, he was sentenced

federal courts. As a result many individuals

to two years of imprisonment, which was

are detained for years while courts determine

suspended for time served, followed by two

whether a prior criminal conviction is actually a
“crime involving moral turpitude or an aggravated
felony” and as such a deportable offense.

years of probation. He was then transferred into
immigration detention. His case went through

Mistakes are common, and in the meantime,

several appeals, but on February 20, 2001,

individuals incorrectly subject to mandatory

the Third Circuit Court of Appeals affirmed

detention have no opportunity for release.77

that his convictions were aggravated felonies
under immigration law and that he should

A 37-year-old lawful permanent resident, who

be deported.79

had lived in the United States for 18 years,
was deported to Haiti for two convictions for
possession of stolen bus pass transfers. The
immigration court found that these convictions

While a person can challenge whether he is
properly included in a mandatory detention
category, it is his burden to demonstrate that ICE
is “substantially unlikely to establish” the charge
19

of deportability.80 Unlike other areas of US law, it

citizenship; due to a lack of due process

is the detainee’s burden to demonstrate that he

protections guaranteed under international law.

should not be deprived of his liberty rather than

US citizenship is a particularly complex and

the government’s burden to demonstrate that

constantly changing area of immigration law and

detention is necessary and proportionate. This

detainees must prove their own US citizenship.85

inversion generally supports mandatory detention,

While this may sound straightforward, in many

because most individuals in detention have no

cases it is not, in particular for detainees who

legal representation and face considerable

cannot obtain assistance with the retrieval of

challenges in developing their own legal arguments
in a complex and ever-changing field of law.

81

required documents. For example, citizens born
at home with the assistance of midwives do not
have a hospital record of birth, and therefore their

Amnesty International found that some US citizens

location of birth is questioned by ICE attorneys.86

and lawful permanent residents are incorrectly

ICE deported a mentally disabled US citizen to

subject to mandatory detention, and spend months

Mexico in 2007. It took his mother months to

or years behind bars proving they are not

locate him and secure his re-entry into the US.87

deportable from the United States. According to
Amnesty International’s research, at least 117
individuals have been held in mandatory detention

Mr. W., a US citizen, was placed in immigration

on the basis of crimes that were ultimately

detention in Florence, Arizona. According to

determined not to constitute an aggravated felony
offense for which they could be deported.82

the Florence Immigrant and Refugee Rights
Project, he was born in Minnesota and had

Because these cases can take years to resolve

never left the United States in his life. Because

and wreak havoc on families, attorneys and

he was detained, he did not have access to his

detainees told Amnesty International that

birth certificate, and was working in the prison

mandatory detention often results in the decision

kitchen for a dollar a day to earn the thirty

to give up the fight to remain in the United States,
even when relief from deportation is available. The
US mandatory detention system, which provides
for the automatic detention of individuals, amounts

dollars it would cost to order a copy of his birth
certificate. Mr. W. was finally released after
being detained for over a month.88

to arbitrary detention, and is in violation of
international law, which requires that detention be

An unknown number of US citizens are detained

justified in each individual case and be subject

and deported each year. In 2007, legal service

to judicial review.

83

providers identified 322 individuals in detention
with potential claims for US citizenship.89

3.3.1 People who should not be in detention at all
but are subject to mandatory detention

B. Foreign Nationals Who Are Not Deportable
Lawful permanent residents,90 many of whom

20

A. US Citizens

have been residents in the United States for years

The immigration detention of US citizens cannot

or even decades, may be subject to mandatory

be justified on any legal basis and is therefore

detention. They may spend months and years

arbitrary under international law. However,

behind bars while attempting to prove the crimes

immigration judges, advocates and detained

for which immigration authorities are seeking

immigrants interviewed by Amnesty International

to deport them, may not actually be deportable

reported cases of US citizens being detained

offenses. The immigration detention of lawful

for months while they try to prove their

permanent residents who are not deportable

JAILED WITHOUT JUSTICE Immigration Detention in the USA

Y.S., a 34-year-old US citizen, spent seven months
in immigration detention fighting deportation.
ICE reportedly determined that the detention was
mandatory because he had been convicted of a
controlled substance violation and could not be
released unless he proved his citizenship. At an
interview with immigration officials that lasted
more than three hours, Y.S.’s mother broke down
crying and could not remember whether he had been
born in the morning or evening. Immigration
authorities were not satisfied that they were
related and ordered the family to undergo DNA
testing, which cost several hundred dollars, money
the family had to scrape together. ICE finally
released Y.S. in October 2007, recognizing that
he was a US citizen and terminating deportation
proceedings. He told Amnesty International that
without a pro bono attorney, he would have given
up and been deported to Thailand.84

Amnesty International interview with former
immigration detainee (identity withheld), June 2008.

21

Mr. B, a 57-year-old lawful permanent resident of the United
States for more than forty years with US citizen children
and grandchildren, spent four years in mandatory detention
while fighting deportation. In August 2003, he pled guilty
to two misdemeanors and received probation. As part of his
probation, he was required to check in with a probation
officer, and he did so regularly. Before Thanksgiving in
2003 his probation officer asked him to come in and when he
did so, ICE officers arrested Mr. B based on the misdemeanor
convictions and sought to deport him, claiming that his
convictions constituted aggravated felonies under immigration
law. “I was in complete shock and kept asking my probation
officer why I was being taken away. I had never heard of
ICE,” Mr. B told Amnesty International. His wife returned
home from work that day to a voicemail that said she should
pick her husband’s car up. She told Amnesty International,
“My husband didn’t call me for two or three days. I didn’t
know what was happening. No one would tell me.” Although
an immigration judge ruled that his convictions were not
aggravated felonies, he remained in detention while his
case went through several government appeals. In November
2007, the federal court of appeals found that Mr. B was
not an aggravated felon and ordered his immediate release.
Although he was no longer subject to deportation, ICE refused
to release Mr. B unless he paid bond. Mr. B told Amnesty
International, “My tears came down my eyes because I learned
that I would not be released unless I paid $10,000. I didn’t
know why.” Mr. B’s wife raised this money from family and
friends; after his release, however, ICE did not return the
bond money for over five months. When Mr. B finally received
it, his family had to use the money to pay bills. He is still
trying to pay back his friends and family, and his daughter has
moved back into the home to help him and his wife financially.

Amnesty International interview with Mr. B and
his wife (identities withheld), January 2009.

22

JAILED WITHOUT JUSTICE Immigration Detention in the USA

cannot be justified on any legal basis and is

to demonstrate why the person is subject to

therefore arbitrary under international law.

mandatory detention. Courts routinely allow ICE
attorneys to postpone and reschedule hearings

Individuals seeking protection through asylum
or Convention against Torture claims

91

may be

in order to establish the needed burden of proof,
causing unacceptable delays and prolonged

caught in the mandatory detention system even

detention. Because of the pressure on individuals

though under international law, they cannot

created by mandatory detention, some judges

be deported if it would place them at risk of

accept an individual’s decision to be deported

persecution, torture or other serious human

without proper examination of the evidence,

rights violations. These individuals may spend

leading to deportation of individuals with

months or even years in detention as they fight

potentially valid claims.

for protection.
At an immigration hearing Amnesty International
observed in New York, a man stated that he
Huyen Thi Nguyen, a 63-year-old Vietnamese

wanted to take an order of deportation rather than

woman, was placed in deportation proceedings

fight his case in detention. He was the father of a

and detained by immigration authorities after
she was convicted of food stamp fraud. She

newborn baby and a lawful permanent resident.
The immigration judge told him that because ICE
could not meet its burden of proof that day, he

spent 16 months in jail fighting deportation,

could not deport him. Instead, he would have

afraid to return to Vietnam because she had

to wait for a month in detention while ICE came

been imprisoned there for four years as a

up with new documents to deport him. “In the

political prisoner. She was held in a facility

interest of justice,” the ICE attorney agreed to

thousands of miles away from her 72-year-

write up new documents so that the man could be
ordered deported immediately.

old husband, a US citizen. An immigration
judge determined she was neither a flight risk

At hearings Amnesty International observed in

nor a danger to the community and should be

San Francisco in June 2008, in several cases ICE

released on bond, but ICE appealed the decision

had no documents to support the grounds that

and denied her release. Ms. Nguyen was finally

triggered mandatory detention and deportation. Even
though ICE could not meet its burden of proof,

released when a District Court judge granted her
habeas petition.92

three individuals without legal representation
accepted orders of deportation rather than remain
in detention. The judge accepted their oral

C. The Burden of Proof: Are People

testimony to establish a criminal conviction.94

Actually Deportable?

Immigration lawyers reported that deportations

Reports to Amnesty International, as well as

such as these, in which the government cannot

hearings observed by Amnesty International,

meet its burden of proof, are commonplace

indicate a pattern in which ICE is not always

particularly among those without attorneys. One

prepared for court with necessary documentation

immigration lawyer told Amnesty International

substantiating the alleged criminal conviction

“This is normal…it’s lethal to due process.”

to demonstrate that someone is deportable
and subject to mandatory detention. Although

As expansive as the “crimes involving moral

it is ICE’s burden to prove that a person is

turpitude” and “aggravated felony” categories are,

deportable by “clear, unequivocal and convincing

ICE does not have to charge a person with one of

evidence,”93 sometimes ICE is not even prepared

these grounds for him to be subject to mandatory
23

detention. Instead, ICE can simply argue orally in

of Homeland Security, Office of the Inspector

court that an individual has a criminal conviction

General report also reached this conclusion and

that qualifies him for mandatory detention.95 While

made recommendations to ensure that custody

it’s likely most immigration courts would require

reviews are meaningful and occurring regularly.

that ICE submit some proof, they will usually grant

According to a study conducted by Catholic Legal

an adjournment allowing immigration authorities

Immigration Network, ICE’s compliance with and

more time to secure the conviction documents,

implementation of the custody review rules are

leaving the immigrant in detention while ICE

not uniform throughout the United States nor

establishes whether or not it can secure the

within individual ICE field offices. The organization

relevant documents.

found that inconsistent internal record-keeping of
detainees’ length of detention, failure to conduct
custody reviews during the mandated time

3.4 INDEFINITE DETENTION

frame, and lack of communication and access to
information for detainees to comply with removal

Amnesty International is concerned that

contribute to prolonged or indefinite detention.99

immigrants and asylum seekers who have been
through removal proceedings and ordered
deported from the United States are languishing

Volsaint Doissaint was granted asylum and

indefinitely in immigration detention, in

became a lawful permanent resident in 1995.

contravention of domestic and international law
and standards. These individuals remain in
immigration detention despite the fact that they

Volsaint was convicted of second-degree assault
in 2000 and served 70 months in prison, expecting

cannot be removed from the United States because

that he would be released thereafter. Instead, he

they are from countries with which the United

was held in immigration detention for three years

States does not have diplomatic relations or

and denied the opportunity to contest his

whose home country will not accept their return.

detention while fighting deportation to Haiti.

Immigrants who are deemed removable from
the United States must be deported within a
period of 90 days.96 ICE may detain immigrants
during this “removal period.”

97

The US Supreme

Court has ruled that if an individual is detained
longer than 90 days, ICE is required to conduct

ICE failed to adhere to its own custody review
procedures by failing to review documents
supporting his request for release and by failing
to notify his lawyer about the decision. On
August 26, 2008, the US District Court granted
Volsaint’s petition for writ of habeas corpus; found

a custody review to determine if the individual is
a flight risk or danger to national security.98 If the

that the failure of ICE to provide him with

individual remains in detention six months after

adequate opportunity to contest his detention in

the removal order has become final, another

his custody reviews constituted a denial of his

detention review is to be conducted. Once it

right to due process; and ordered that he is entitled

is determined that removal is not reasonably

to a bond hearing before an immigration judge.100

foreseeable, the regulations require the individual
to be released under conditions of supervision.
A detention review should take place at the outset

24

Immigration advocates, however, reported to

in order to justify that detention is necessary and

Amnesty International that regular custody

proportionate, and all decisions to keep someone

reviews are not taking place. A 2007 Department

in detention should be open to periodic review

JAILED WITHOUT JUSTICE Immigration Detention in the USA

A Colombian asylum seeker at Krome Detention Facility in Florida.
©Steven Rubin.

and be subject to judicial review. The United

half years of immigration detention upon arrival

States must act immediately to address this

in the United States in October 2001. She was

serious violation of human rights.

granted asylum in 2004. However, immigration
authorities appealed the decision, and Ms.

3.5 RIGHT TO HABEAS CORPUS REVIEW

Thangaraja remained in detention. She was
finally released in March 2006 after filing a

Individuals can seek release from detention

habeas petition. Despite posing no danger

by filing a petition for a writ of habeas corpus

to the community and demonstrating a

(a procedure that requires authorities to justify

commitment to pursuing her asylum claim,

a person’s detention) in a federal court. However,
it is difficult to do without an attorney who can
assist with this complicated process. The majority
of immigration detainees are not represented by

Ms. Thangaraja was never given a custody
hearing during the four and a half years she
was detained.101

an attorney. The few who are able to pursue this
option may nevertheless be subject to prolonged
detention for years before they are released.

Saluja Thangaraja fled the brutal beatings and
torture that she suffered during the Sri Lankan
civil war only to endure more than four and a

25

A detained immigrant in a detention facility in Washington state. ©Steven Rubin.

26

JAILED WITHOUT JUSTICE Immigration Detention in the USA

4

ALTERNATIVES TO DETENTION

“MY BABY WAS DELIVERED WHILE I WAS IN PRISON … I MISSED
THE BIRTH OF MY CHILD AND, I’LL NEVER GET THAT BACK.”
Amnesty International interview with former immigration detainee
(identity withheld), June 2008

Governments are obliged by international law to

Alternatives to detention have been shown to be

ensure that alternatives to detention are made

effective and significantly less expensive than

available to immigrants and asylum seekers, in

holding people in immigration detention in the

both law and in practice. Alternatives to detention,

United States. A study of supervised release

such as conditional release, reporting requirements,

conducted by the Vera Institute in New York

bond, or financial deposits, should always be

yielded a 91 percent appearance rate at an

considered before resorting to immigration detention.

estimated cost of just $12 per person per day.104

Indeed, in order to establish that detaining

The US Congress has recently increased funding

an individual is necessary and proportional,

to explore alternatives to detention however

governments must first consider less restrictive

concerns have been raised that ICE is using these

alternative measures.102

funds for programs such as electronic monitoring
to supervise individuals who are eligible for

Governments must take into account the particular

release rather than for individuals who would

situations of immigrants to ensure that the conditions

otherwise be detained.105

or criteria of each alternative do not discriminate
in law or practice against particular groups of

ICE currently operates two supervised release

non-nationals, whether on the basis of their origin,

programs; the Intensive Supervision Appearance

economic situation, immigration, or other status.

Program (ISAP) and the Enhanced Supervision/

Only that measure that interferes least with the

Reporting (ESR) Program. In 2004, ICE

human rights of the individual concerned should be

implemented ISAP as a pilot project in a handful

used, and only where no less intrusive or restrictive

of cities nationwide. The program, which is

means can be used to reach the same objective.

run through a private contract with Behavioral

To safeguard against arbitrariness, a right to

Interventions, Inc., uses electronic monitoring

appeal or review by a judicial or other competent

devices (bracelets), check-in by telephone, home

and independent authority must be available.103

visits, and restrictions on movement to
27

A detained immigrant visits with his son and family members in a California
detention center. ©Steven Rubin.

make sure that an individual complies with his

While alternatives to detention should be made

or her conditions of release and shows up for

more widely available and easier to access,

immigration court proceedings.106 The ESR

Amnesty International does have concerns

Program was introduced in 2007 and uses

that such programs may be used in ways that

several of the same procedures as ISAP, as well

violate immigrants’ human rights. The placing

as additional supervisory tools like residence

of electronic tagging devices on immigrants who

verification, but it does not include ISAP’s

are not considered security threats or flight risks

collaboration with community resources. Currently,

is a disproportionate infringement upon their

ISAP and ESR (with full reporting) can supervise

right to liberty, as well as their rights to privacy

6,000 and 7,000 individuals, respectively. This

and human dignity. In considering alternatives to

is approximately 5 percent of the detentions ICE

immigration related detention, authorities should

initiates each year.

107

In addition to the supervised

release programs, ICE utilizes “electronic
monitoring only” as an alternative to detention.
According to ICE, this option has no enrollment
limit and is deployed nationwide. Currently
more than 5,400 immigrants are enrolled and
monitored in this manner.108

28

use the least restrictive means necessary.

JAILED WITHOUT JUSTICE Immigration Detention in the USA

5

CONDITIONS OF DETENTION

“[A]CCESS TO LEGAL COUNSELING AND REPRESENTATION …
IS OF EXCEPTIONAL IMPORTANCE.”111
UN Working Group on Arbitrary Detention

Immigrants and asylum seekers detained

Amnesty International documented pervasive

during removal proceedings are held under

problems with respect to conditions of detention,

US law in administrative custody. International

such as the commingling of immigration detainees

standards require that administrative detention

with criminal detainees, inappropriate and

should not be punitive in nature.109 However,

excessive use of restraints, inadequate access to

in reality, conditions of detention frequently

healthcare including mental health services, and

violate fundamental human rights. Immigration

inadequate access to exercise for ICE detainees.

detainees are often detained in jail facilities with

Problems related to conditions of detention

barbed wire and cells, alongside those serving

have also been documented by US government

time for criminal convictions. They are not able

agencies, including the Department of Homeland

to wear their own clothes but instead wear prison

Security’s Office of Inspector General and the US

uniforms and are often handcuffed.

Government Accountability Office.110

Amnesty International documented significant

In September 2008, ICE announced the

barriers for immigrants to accessing assistance

publication of 41 new performance-based

and support while in detention. Such issues

detention standards to be implemented over 18

included lack of access to legal counsel and other

months. These will take full effect in all facilities

forms of assistance in detention such as “know

housing ICE detainees by January 2010. These

your rights” presentations, lack of access to and

standards, if effectively implemented, will improve

inadequate resources related to law libraries and

conditions for immigration detainees. However,

legal materials, failure to provide immigration

Amnesty International is concerned that they

specific detainee handbooks, inadequate

are not legally enforceable and do not provide

access to telephones, lack of translation and

adequate sanctions for violations.

interpretation services, and frequent transfers
between facilities which undermines detainees’
ability to access to legal counsel and relatives.
29

5.1 ACCESS TO ASSISTANCE AND SUPPORT:
SAFEGUARDS RELATING TO DETENTION

According to the US Department of Justice,
58 percent of individuals in deportation
proceedings do not have a lawyer during removal

The ability to access the outside world is an

proceedings.115 However, for detained immigrants

important safeguard against arbitrary detention;

that figure rises to 84 percent.116

however, Amnesty International found that
immigration detainees in the US face considerable
barriers in communicating with anyone outside

Amnesty International observed hearings in

the detention facility and accessing assistance.

California in June 2008 during which a man
confirmed before an immigration judge that

5.1.1 Access to lawyers

upon arrival in the United States, he had stated

Every detained person has the right to the
assistance of legal counsel. International law

that he was afraid to return to his home country.

provides that if the interests of justice require

After being incarcerated in a county jail pending

it, legal assistance should be assigned without

removal proceedings, he retracted his fear of

payment if the person does not have sufficient

return and agreed to be deported. He did not

means to pay for it.112 In the United States,
individuals in deportation proceedings have the

have a lawyer during these proceedings.

“privilege” to secure counsel but at no expense
to the government.113 This means that if an

Historically, the Board of Immigration Appeals

individual cannot afford an attorney, one will

and federal courts had long recognized and

not be appointed. As a result, the majority of

protected the right to effective counsel.117 Yet on

immigrants in detention are unrepresented.

114

January 7, 2009, just days before the end of his

Detained immigrants from Vietnam, Laos and Cambodia at a detention facility
in California. The United States only established repatriation agreements with
Cambodia in 2002 and Vietnam in 2008; until these agreements, immigrants slated
for deportation to those countries languished in indefinite detention. The
United States still does not have an agreement with Laos. ©Steven Rubin.
30

JAILED WITHOUT JUSTICE Immigration Detention in the USA

term, Attorney General Michael Mukasey issued
a decision declaring that no one in immigration
court has the right to effective counsel because
there is no statutory or constitutional right to
counsel. What this means is that an immigrant
may have no remedy if an attorney makes an
error that affects his or her case.118 For example,
if an attorney misses a deadline to file an
application for permanent residence on behalf of
a US citizen’s spouse, an immigration judge can
order the spouse deported. While in the past an
application to reopen the case could be made due
to the ineffective assistance of their attorney, now
it will be almost impossible to rectify this mistake.
Representation by legal counsel can have a
significant impact on the outcome of an individual’s
case. Unrepresented individuals may unknowingly
give up valid claims that would allow them to
remain in the United States legally. One study
found that individuals are five times more likely to
be granted asylum if they are represented.119
Immigration courts are obligated to provide a
list of pro bono and low cost non-governmental
organizations and attorneys to unrepresented
immigrants.120 However, immigrants and lawyers
told Amnesty International that these lists are
frequently unhelpful. Reportedly many and
sometimes all of the organizations on the lists
do not accept collect calls. Others may only take
cases involving individuals of a specific ethnicity,

“IF I DIDN’T HAVE A

LAWYER I’D BE IN
BRAZIL. I’D BE A
DEAD PERSON.”
Amnesty International interview
with a formerly detained asylum seeker

T. is a 29-year-old
lawful permanent
resident with a 2-year
old US citizen son.
She was adopted by a
US couple at 14, after
suffering physical and
psychological abuse
during her childhood
in Russia. In September
2007, she was placed
in removal proceedings
after serving a threemonth criminal sentence.
She represented herself
in immigration court,
seeking to prove she was
a US citizen. She told
Amnesty International
that it was very hard
for her to complete the
appellate briefs and
meet deadlines because
she had infrequent
computer access and had
to write all of the
necessary documents by
hand, in triplicate.
Despite her efforts,
she lost her fight to
remain in the United
States and is currently
awaiting deportation to
Russia. As of January
2009, she has been held
in immigration detention
for more than a year.

Amnesty International
interview with
an unrepresented
immigration detainee
(identity withheld),
June 2008.

(identity withheld), June 2008.

31

only represent asylum seekers, or do not accept

Rights Programs provided by non-governmental

cases where individuals are detained. Amnesty

organizations. Under international law it is the

International researchers observed a New York

government’s obligation to ensure that any person

immigration judge who, after reviewing the

subject to detention be provided with information

entire list, admitted to a detainee that only one

about his or her rights, including how to avail

organization the Legal Aid Society might be able

himself or herself of such rights.123

to take his case.

121

The few available programs

that provide free assistance are often unable to

Law Libraries

meet the high demand for services and must turn

As so many individuals have to represent

away the majority of those who seek their help.

themselves in immigration court, access to a

In the California Bay Area, just two programs

law library with immigration-related materials

represent detainees on a pro bono basis, the

is imperative in order to navigate the complex

Asian Law Caucus and the University of California

immigration system and adequately bring a claim

at Davis Immigration Law Clinic. “It’s impossible

for relief. ICE Detention Standards state that

to handle the volume. We have a stack of 100

facilities should provide detainees with access to

letters we can’t even respond to,”122 a lawyer

a law library and legal materials for a minimum of

from the clinic told Amnesty International. Many

five hours per week.124 The libraries must contain a

detention centers are in rural areas, contributing

specified list of immigration-related legal resources,

to detainees’ difficulty in accessing counsel.

and should be updated regularly. Amnesty
International spoke to several former and current
detainees who said they had only limited access

“I CAN’T GO BACK ... THERE
ARE PEOPLE THERE TRYING
TO KILL ME. I WROTE SO
MANY LETTERS TO LAWYERS
ASKING THEM TO HELP ME.”
Amnesty International interview with
an unrepresented immigration detainee
(identity withheld), June 2008.

to the law library for example, one individual
reported that he could usually only go to the library
once a week and that requests for access often
depended on the “mood of the guards.” Detainees
also told Amnesty International that the law library
didn’t contain immigration-related material or that
materials were outdated or not available in the
languages they needed.
Know Your Rights presentations
According to ICE detention standards, nongovernmental organizations may conduct “Know
Your Rights” presentations for immigration
detainees. However, detainees may not have
access to these presentations because non-

32

5.1.2 Access to information and other forms of
assistance in detention

governmental organizations may lack the necessary

People in immigration detention often have to

to travel to detention centers in remote locations.

represent themselves in immigration proceedings

Amnesty International spoke with 11 current

and have limited resources to assist them in

immigration detainees in California, none of whom

understanding the complex immigration system

reported receiving a presentation even though two

and what claims might be available to them.

of them had been detained for over eight months.

Some of the obstacles that individuals face

Indeed, the warden of the Santa Clara County

include limited access to law libraries and legal

Jail, California, told Amnesty International that the

materials, and to Legal Orientation and Know Your

facility does not allow such presentations at all.

resources to conduct them, or may not be able

JAILED WITHOUT JUSTICE Immigration Detention in the USA

Handbooks

ONE DETAINEE TOLD
AMNESTY INTERNATIONAL,
“NO ONE ELSE IN DETENTION
SPEAKS MANDARIN.” SHE
LOOKS UP WORDS IN AN
ENGLISH DICTIONARY AND
WRITES THEM DOWN TO TELL
GUARDS WHAT SHE NEEDS.

ICE guidelines state that facilities should give
each detainee a handbook that provides an
overview of the rules and procedures at the
facility, as well as a copy of the ICE National
Detainee Handbook, which contains information
regarding detainees’ rights under the ICE
detention standards and other related information
such as the right to contact consular officials,
and the right to make free calls to pro bono legal
service providers. Several detainees Amnesty
International spoke with in California reported that
they did not receive any handbook at all, while
others received a facility handbook but nothing
specific to immigrants. A number of detention
facilities Sacramento County Jail and Santa Clara

Amnesty International interview

County Jail, California; Palm Beach County Jail

with a detained asylum seeker

and Monroe County Jail, Florida; Ulster County

(identity withheld), June 2008.

Jail, New York; Butler County Sheriff’s Office,
Ohio; Yamhill County Jail, Oregon; Lackawanna
County Prison, Pennsylvania; Arlington County
Some detainees may have the opportunity to

Detention Facility, Virginia told Amnesty

access the federally funded Legal Orientation

International that they do not provide an ICE

Program. The EOIR contracts with non-

National Detainee Handbook.

governmental organizations to conduct these
orientation programs, which seek to provide

ICE Officers

detainees with basic information on forms of

Often, the only source of information for many

relief from removal, how to represent themselves

detainees about the status of their case is ICE

in proceedings, and how to obtain legal

itself. According to ICE detention standards, ICE

representation. Immigration judges report that

officers must regularly visit detention facilities

individuals who attend these programs appear

where immigrants are detained to provide

better prepared, have a better understanding of

information on the general immigration process.

the court process, and are more likely to be able

However, detainees told Amnesty International

to identify the relief for which they are eligible.

125

that ICE staff often do not appear, and when they

However, these programs are not available to all

do, they are unable to provide useful information.

detainees. As of November 2008 these programs

Reportedly ICE staff is frequently unable to tell

were offered in only 13 detention centers and

detainees more than the date of their next court

served approximately a quarter of immigration

appearance. One former detainee told Amnesty

detainees. EOIR has recently reported plans to add

International, “You’re very dependent on ICE.

12 more locations; yet even with this expansion,

You ask them questions, but then have to wait

these programs are not available nationwide.126

for them to go back and get the information for
you. Often times they would come back without

Finally, while the Know Your Rights presentations

any information.”127 That ICE officers may

are certainly important, they cannot replace the

represent the only source of information for many

benefits of having individual legal representation.

detainees, particularly those without a lawyer,
presents a troubling conflict of interest since ICE
33

is also seeking to deport them. It is essential that
detainees have access to other forms of assistance.

5.1.3 Translation and interpretation services
While interpreters are generally available when an
immigrant appears before an immigration court,
a number of detainees reported that while in
detention they needed to rely on other detainees
or guards in order to obtain necessities, such as
food and toiletries, translate documents or request
assistance. ICE should ensure that all detention

“LIFE IS MISERABLE. THE

CHILDREN CONSTANTLY ASK
FOR THEIR FATHER AND WAKE
EVERY MORNING ASKING
WHERE HE IS ... I’M BY
MYSELF, ALONE AND CRYING.
I DON’T KNOW WHY THEY
PUNISH PEOPLE LIKE THIS.”

facilities provide adequate interpretation and
translation services for immigration detainees.

5.1.4 Access to attorneys and relatives
Amnesty International’s findings indicate that

Amnesty International interview with the
wife of a former immigration detainee
who had been held hundreds of miles

many immigrant detainees have only infrequent

away from his family for more than four

access to attorneys and family members. The

years (identity withheld), June 2008.

ability to maintain contact with the outside world
is an important safeguard against arbitrary
detention, and international standards stipulate

her attorneys and family during video hearings

that individuals should be “kept in a place of

for her case once a month. Her family filed a

detention or imprisonment reasonably near his

lawsuit against ICE regarding lack of medical

usual place of residence.”129

care and she was finally released on July 2,
2008. She is now in Florida with her family,

Yong Sun Harvill, a lawful permanent resident,

getting medical treatment and awaiting the final

was taken into custody by ICE on March 22,

determination on her case.128

2007. According to news accounts in The
Washington Post, she suffers from serious and

Amnesty International is concerned by
reports of detainees being held at facilities at

complex medical issues, including repeated

a great distance from family and attorneys,

episodes of soft-tissue cancer, hepatitis C, and

sometimes thousands of miles, making visits

psychiatric problems. Her family and doctors

and communication costly and time consuming.

live in Florida. She was originally detained

Being detained in close proximity to attorneys is

for two months at a jail in Florida; however,
ICE transferred her to the Florence Service

imperative in order to adequately prepare for
court. Also family members may possess or be
able to acquire documents necessary for immigration

Processing Center in Arizona, allegedly to secure

court, including birth certificates or passports. The

better long-term care. One month later she

distances also impact the mental health of detainees

was moved again to Pinal County Jail, Arizona,

and their families, in particular young children.

a facility that did not have a full time staff
Frequent transfers to facilities all across the country
doctor. The jail is more than 2000 miles from

34

are reportedly common, further undermining

her family. Her attorneys were also unable to

detainees’ ability to communicate with legal counsel

have telephone calls with her, and she only saw

and relatives. A detainee from Guyana was

JAILED WITHOUT JUSTICE Immigration Detention in the USA

reportedly transferred between ten facilities as far

5.1.5 Access to telephones

apart as Alabama, Virginia and New Jersey during

The primary means of communication for

his six and a half years in detention. He was

immigration detainees to contact attorneys, family

released in December 2006 after he was granted

and consular officials is the detention facility’s

relief under the Convention Against Torture.

130

telephone system. However, detainees reported
having limited access to telephones. Several

It was also reported to Amnesty International that

detainees told Amnesty International that there

guards may threaten detainees with transfer to

were only 2-3 phones available for as many as 40

another facility if they complain about conditions.

to 50 detainees. As a result, detainees often had
to wait a long time to make a phone call. Amnesty

A detainee told Amnesty International that his wife, a US
citizen, comes to visit him at the Yuba County jail, California
every Saturday, “She drives three and a half hours just to
have 45 minutes there. We should have longer time together.”
The facility where he is held does not allow physical contact
visits between ICE detainees and their family. “She brings our
daughter. Sometimes it makes me cry. One time, [my] daughter
said, ‘Daddy come out!’ She saw a door in the waiting room
and said, ‘Look at the door in the back, come out!’ I couldn’t
stand it. It hurt me a lot. I told her, ‘I want to hold you and
kiss you.’” He told Amnesty International that he’d been in
immigration detention for two months. “Before, on the outside,
I was the provider. I had my own company and worked for myself.
While you’re in prison, your hands are tied, you can’t do
anything.” His wife has had to apply for welfare to support
herself and their 2-year-old child. In tears, he told Amnesty
International “What hurts is my daughter. I want to be there
for her. I want to go to work every day, come home and see what
she needs. I want to take her to the ocean, spend time with
her. It’s killing me. Sometimes I break down.” He told Amnesty
International that he feels he has no alternative but to stay in
detention and fight deportation, because he fears that he and his
family would be targeted by people who have made threats on his
life. “I don’t want to take my family to get hurt. I’d rather they
stay here. I really can’t go back.”

Amnesty International interview with immigration detainee
(identity withheld), June 2008.

35

M.D.H. told Amnesty International that he had painful
dental problems that went untreated for the length of
his detention, making it difficult for him to eat.
He was told, “If you complain, we’ll ship you out to
Bakersfield” a California facility that is several
hours almost 200 miles away from his family and legal
representation in the San Francisco area.

Amnesty International interview with former immigration
detainee (identity withheld), June 2008.

A Vietnamese lawful permanent resident living in the
United States for 27 years was detained while fighting
deportation. He told Amnesty International that his
niece was able to get in touch with a legal service
provider willing to provide representation free
of charge. However, he was not able to contact the
provider from jail because the provider did not accept
collect calls.

Amnesty International interview with former
immigration detainee (identity withheld), June 2008.

International also received reports that detainees

direct or free calls to consulates, and ICE is

are unable to make free calls to pro bono legal

required to provide updated telephone lists for

services, although ICE guidelines provide for this.

all consulates.132 Amnesty International spoke

This may have a profound impact on a detainee’s

with one detainee who tried to call the consul

ability to secure counsel, since calls from prisons

of Afghanistan, but the page with the telephone

are often costly, and many pro bono legal service

number was missing from the list. He said he

providers with scant resources are unable to

reported this issue to an ICE officer but no

acceptcollect calls.

131

Under ICE detention

guidelines, facilities are also required to provide
36

number was provided.

JAILED WITHOUT JUSTICE Immigration Detention in the USA

“THE FACILITY, YOU

DON’T KNOW WHAT’S
GOING TO HAPPEN
TOMORROW NIGHT.
YOU HAVE GANGS
FROM STATE PRISON
IN THERE.”

Amnesty International’s survey reported similar
practices.134 A number of detainees described
being commingled with criminal detainees during
certain times of the day, such as when performing
work or during recreation time.
Housing immigration detainees alongside
individuals serving sentences for criminal offenses
can put them at risk of physical harm. Immigration
detainees said there were often confrontations,
and in some instances, physical violence between
them and the criminal detainees.

5.2.2 Inappropriate and excessive use of restraints
Juana Villegas, an unauthorized immigrant from
Mexico, was nine months pregnant when she was

Amnesty International interview with

arrested for a driving without a license in July

former immigration detainee (identity

2008 and taken to the Davidson county jail in

withheld), June 2008.

Nashville, Tennessee. Two days later, she went
into labor and was taken to hospital in an
ambulance, chained to a gurney. At the hospital,

5.2 CONDITIONS OF DETENTION

her left ankle and right wrist were shackled to the
bed and removed just before delivery of her baby

5.2.1 Housing with detainees convicted of crimes

boy and for approximately six hours after giving

Immigration detainees, including asylum seekers,

birth. But then, her left ankle was again shackled

are in civil administrative detention, yet they are

to the bed until her release from hospital; her

often housed in prisons and jails with individuals

feet were shackled together except when she had

serving sentences for criminal convictions. This is
contrary to international standards, which provide

to visit the bathroom. Her lawyer said this was

that those held under administrative detention

done in violation of doctors’ orders. Ms. Villegas was

shall be kept separate from individuals in criminal

forbidden from seeing or speaking to her husband,

133

custody.

ICE detention standards state that all

facilities should develop a classification system for
immigration detainees and ensure that detainees
are physically separated from detainees in other

friends, or relatives, and the telephone in her
hospital room was disconnected. Her husband
collected their baby on July 7, 2008, and his wife

categories. The standards, however, do not

returned to jail; he was not allowed to see or speak

specifically require facilities to keep ICE detainees

with her. Juana Villegas was released on July 8, and

separate from individuals serving sentences for

she is now subject to deportation proceedings.135

criminal offenses.

Amnesty International considers the routine

A warden at one facility in California told Amnesty
International that immigration detainees are

use of restraints on pregnant women, and
particularly on women in labor, a cruel, inhuman

commingled with criminal detainees. Various

and degrading practice that seldom has any

facilities across the country responding to

justification in terms of security concerns.
37

“N.” ©Keith Brauneis.

A transgender woman from Brazil told Amnesty
International about her experiences at Santa Clara
County Jail in California. N. was granted protection
under the Convention Against Torture due to the torture
she suffered in Brazil. She told Amnesty International
that when she first arrived at Santa Clara, she was
housed with several men. She claims she was sexually
harassed by the other detainees. She was eventually
placed in a private cell, but she said it took nearly
two months before that happened.

Amnesty International interview with former immigration
detainee (identity withheld), June 2008.

38

JAILED WITHOUT JUSTICE Immigration Detention in the USA

Interviews with current and former detainees
indicate that the use of restraints during
transportation is routine, in violation of international
standards.136 The types of restraints used vary.
Some detainees said they were handcuffed, some
said they were handcuffed with belly chains, and
others said they wore handcuffs, belly chains, and
leg restraints. In interviews with current and former
detainees, it appears that the use of restraints
during transportation for all detainees is the rule,
rather than the exception. Routine use of restraints on
women contradicts ICE detention standards, which
specify that as a rule, women and children should
only be restrained in exceptional circumstances.137

judicial or administrative authority.138 However,

International standards require that restraints

An attorney told Amnesty International that this

be removed when a person appears before a

is standard procedure and noted, “They [the

Amnesty International observed immigration court
hearings in San Francisco and New York City
where immigration detainees were restrained. In
New York, immigration detainees were brought
into court individually wearing belly chains
and handcuffs, and only their right hand was
released from the restraints in order to take
the oath before the court. In San Francisco, as
many as seven detainees were brought into the
courtroom handcuffed and chained together,
and they remained in joint restraints at the back
of the courtroom throughout the proceedings.

detainees] are told to be diligent, to pay attention

A CHINESE WOMAN PURSUING
AN ASYLUM CLAIM DESCRIBED
BEING TRANSPORTED BACK
AND FORTH TO COURT IN
HANDCUFFS AND BELLY CHAINS.

to what is going on, but they’re shackled and
in the back. They can’t take notes on a lot of
important things deadlines, what to bring…”139

5.2.3 Medical Treatment
ICE detainees may find it very difficult to get timely
and at times any treatment for their medical needs.
International standards clearly specify that medical
care and treatment shall be provided whenever
necessary.140 ICE detention standards state that

Amnesty International interview with

all facilities should provide detainees with initial

former immigration detainee (identity

medical screening, cost-effective primary care,

withheld), June 2008.

and emergency care.

A Brazilian transgender woman in Santa Clara County Jail
in California described to Amnesty International how she was
transported to immigration court in handcuffs, belly chains
and leg restraints, even though men in the vehicle were only
restrained in handcuffs. She reported that when she was last
taken before the immigration judge, she had chains between
her two thumbs, as well as her wrists, waist and ankles.

Amnesty International interview with former immigration
detainee (identity withheld), June 2008.

39

L.N. is 27 years old and was born in Afghanistan. He was 7
years old when he and his family came to the United States
as refugees. He was placed in deportation proceedings and
held in mandatory detention because of a drug conviction
in 2007. He began urinating blood not long after, and was
experiencing constant fatigue, pain and discomfort. He had to
wait a month and a half before he was first seen by a doctor.
After nine months, he had yet to receive any diagnosis or
treatment. He has filed four grievances about his lack of
medical treatment and told Amnesty International that he is
so frustrated and afraid that he is considering giving up his
claim of citizenship and going back to Afghanistan in order
to obtain medical care. He told Amnesty International that he
was particularly concerned about his wife and daughter, who
will suffer because he “made a mistake.” “There’s no life for
my wife and daughter in Afghanistan.”

Amnesty International interview with immigration detainee
(identity withheld), June 2008.

Several recent cases reported in the media have

oversight at facilities housing immigration detainees

involved failure to provide medical treatment, which

to ensure adherence to standards of medical care.142

resulted in the death of immigration detainees.
According to ICE, 74 people have died while in
immigration detention over the past five years.141

Boubacar Bah, a 52-year-old tailor from Guinea,

Following heightened public attention, the Office

had lived in the United States for ten years when

of Inspector General (OIG) of the Department
of Homeland Security conducted a review
examining ICE’s standards on medical treatment

40

he was detained in May 2006 for overstaying his
tourist visa. On February 1, 2007, Bah collapsed

of immigration detainees and procedures related

and struck his head on the floor. According to

to detainee deaths. The study found a need to improve

other detainees, Bah had been ailing for two days,

JAILED WITHOUT JUSTICE Immigration Detention in the USA

and had asked unsuccessfully to see a doctor. Bah

are working. He told Amnesty International that

was taken to the medical unit where symptoms of

the mental health practitioner doesn’t seem to know

severe injury were overlooked instead of receiving

the reason why he is on the medications: he was

treatment, the incoherent and agitated Bah was
shackled to the floor and later placed in solitary

a prisoner of war in his home country and raped
while captive. He is seeking relief from removal
under the UN Convention Against Torture.

confinement for “behavior problems.” Over thirteen hours later after repeated notifications that
Bah was unresponsive and foaming at the mouth

Sebastian Mejia Vincentes died on

medical staff acknowledged the severity of Bah’s

August 22, 2004, while detained at

condition. Despite emergency surgery for a skull

Hampton Roads Regional Jail in Virginia. He

fracture and brain hemorrhage, Bah entered a

had a history of schizophrenia and hanged

coma. He died four months later, without waking.143

himself with a bed sheet. According to a DHS
Office of Inspector General report, the jail
violated its rule that detainees must be checked

Victoria Arellano, a 23-year-old transgender wom-

on every 30 minutes. A medical examiner told

an from Mexico, was detained at ICE’s San Pedro

the investigators that she “found it troubling”

Facility in May 2007. Arellano was suffering from

that Mejia had been dead for “at least four to six

AIDS though not exhibiting symptoms. In deten-

hours before his body was found.” 146

tion, her condition deteriorated because she was
not given access to the antibiotics she needed.

5.2.4 Exercise

According to The Los Angeles Times, her requests

The majority of detainees who spoke with

to see a doctor were ignored by facility staff. Other

Amnesty International reported that they did not

detainees dampened towels to reduce her fever
and created makeshift trash cans from cardboard

have the opportunity to exercise daily. Reports
ranged from being allowed time to exercise from
two to four days per week. Exercise is reportedly

boxes to collect her vomit. Only after a strike and

often scheduled at unreasonable hours of the

civil disobedience by detainees in the facility did

day. One detainee described how recreation

staff take her to the infirmary. Arellano died two

time is scheduled for one hour at 5:30 a.m.

days later, after two months in detention, due to

and that it only takes place when the majority
of the detainees in the housing unit want to

an AIDS-related infection.144

go. Detainees reported that they often forego
their recreation time because it is scheduled

Some individuals in immigration detention

so early in the morning. Amnesty International

require mental health services, particularly those

also received reports that some detainees do not

who have been victims of torture and abuse.

have the opportunity to exercise outdoors. The

Detention itself can have detrimental effects on

DHS Office of Inspector General conducted an

an individual’s mental health.145 However, reports

investigation into the treatment of immigration

indicate that such services are frequently not

detainees housed in ICE facilities and found that

provided, or are inadequate. One detainee who

immigration detainees do not always have access

had been in detention one year, reported he was

to adequate exercise.147

taking anti-depressants, but he only speaks to a
mental health practitioner by phone briefly once

International standards provide that detainees

every two months about whether the medications

should have at least one hour of suitable exercise
41

in the open air daily if the weather permits.148

5.2.5 Physical and verbal abuse

Under ICE’s detention guidelines, detainees

Amnesty International received reports that some

should wherever possible be housed in a facility

individuals have been subjected to physical and/or

that offers outdoor recreation, and each detainee

verbal abuse while held in immigration detention,

should have access for at least one hour daily, at

in violation of international standards.149 Reported

a reasonable time of day, weather permitting.

allegations of mistreatment include the following:

The transgender asylum seeker held at Santa Clara County
Jail told Amnesty International that she was verbally and
physically abused in immigration detention in early 2008. She
reported that guards constantly called her “he/she,” “faggot,”
and “fag-boy.” On one occasion, she requested assistance
from guards because she was afraid for her safety after
being placed in a cell with five men. When a guard finally
responded, she said he handcuffed her behind her back and
pulled up her hands so hard that “my shoulder popped out of
the socket. They put me in a holding cell. I was there by
myself for 12 hours before I received medical attention.”
She also told Amnesty International that on another occasion,
while being held at another facility, she tried to bring the
guards’ attention to another inmate who had fainted. She said
an officer took her by the neck and rammed her head into the
wall, shouting, “It’s not your fucking problem!” She told
Amnesty International, “I wrote a lot of grievance forms, but
nothing happened.”

Amnesty International interview with former immigration
detainee (identity withheld), June 2008.

42

JAILED WITHOUT JUSTICE Immigration Detention in the USA

Mr. C arrived from Nigeria to the United States in 1985.
He is married to a US citizen and has four US citizen
children, ranging in ages five to 17. On April 6, 2004, Mr.
C was arrested at his house and taken into ICE custody for
overstaying his student visa. On May 12, 2004, after refusing
to sign his deportation order without first speaking with an
attorney, Mr. C said he was handcuffed and shackled when he
was beaten by six officers “… forcefully slamming me on the
wall and concrete floor, pinning me on the concrete floor
with their knees on my back.” Mr. C said he was bleeding and
dazed, and he was rushed to a facility clinic. In October
2004, he told Amnesty International he was still suffering
the effects of the beating. “I continue to have migraine
headache, back pain, psychological and emotional pain,” he
said. He filed a civil lawsuit after grievances to ICE about
the incident met with no result. In an August 2006 letter to
Amnesty International, he stated that he was still detained
and fighting his deportation and he continued to have
nightmares about the beating and humiliation he suffered.
He told Amnesty International, “My family has been undergoing
extreme hardship since my detention, both emotionally
and financially.”

Amnesty International correspondence with immigration
detainee (identity withheld), September 2004.

43

6

RECOMMENDATIONS

ENSURE PRESUMPTION AGAINST
DETENTION OF IMMIGRANTS AND
ASYLUM SEEKERS

be extended to those currently subjected to

• The US Attorney General and the Secretary for

and regularly reviewed as to its lawfulness,

the Department of Homeland Security should

necessity, and appropriateness by means of

ensure a statutory presumption in law, policy, and

a prompt oral hearing by a court or similar

practice against the administrative detention of

competent independent and impartial body.

“mandatory detention.”
• Any detention decision should be automatically

immigrants and asylum seekers.
• All decisions to detain an immigrant or asylum• Immigration detention should be used only if,

seeker should be subject to review by an

in each individual case, DHS demonstrates that

immigration judge and appeal to a competent

it is a necessary and proportionate measure, in

independent and impartial body.

conformity with international law. Any form of
immigration detention should always be as short
as possible.

ENSURE ALTERNATIVES TO
DETENTION ARE AVAILABLE

ENSURE THAT ALL DECISIONS TO DETAIN
IMMIGRANTS AND ASYLUM SEEKERS ARE
SUBJECT TO JUDICIAL REVIEW

• The Department of Homeland Security should
take all measures to ensure that non-custodial
measures and alternatives to detention are
provided for in law, policy, and practice.

• The Department of Homeland Security and
the Department of Justice (Executive Office

• Alternative non-custodial measures, such as

for Immigration Review) should ensure that

reporting requirements, an affordable bond, or

any decision to detain immigrants and asylum

supervision programs operated by community-

seekers is based on a detailed and individualized

based organizations, should always be explicitly

assessment, which should include the individual’s

considered before resorting to detention. Reporting

personal history, whether she or he presents a

requirements should not be unduly onerous,

danger to persons or property, and the risk of

invasive, or difficult to comply with, especially

absconding. Such assessment should consider

for families with children and those of limited

the necessity and appropriateness of detention,

financial means. Conditions of release should be

including whether it is proportionate to the

subject to review by an immigration judge.

objective to be achieved. This evaluation should
44

JAILED WITHOUT JUSTICE Immigration Detention in the USA

• Alternatives to immigration related detention

representation should be granted enhanced

should use the least restrictive means necessary.

access in order to meet filing deadlines.

Electronic tagging devices should not be used
for immigrants who would not otherwise be

• The Department of Homeland Security should

considered security threats or subject to detention.

ensure that presentations by non-governmental
organizations, including legal orientation

• All immigrants and asylum seekers should have

programs, are allowed on a regular basis at

equal access to bond. All decisions regarding

least weekly in all detention facilities. The US

release on bond should be individualized and

Congress should provide funding for such

subject to review by an immigration judge. Conditions

programs to ensure all detainees have access

of bail, bond or surety must be reasonable and

to such presentations.

realistic for the individual seeking release.
• The Department of Homeland Security should
• The Department of Homeland Security should

ensure that all detainees have proper access

not have the authority to keep an individual in

to working telephones while in detention and

detention if an immigration judge has ordered that

that regularly updated lists of pro bono or low

individual released.

cost representation and consulates are kept
in the vicinity of telephones. Calls to legal
service providers offering free or low cost legal

ENSURE SAFEGUARDS AGAINST
ARBITRARY DETENTION

representation, attorneys, and consuls should
be provided at no expense to the detainee or the
group receiving the call.

• The Department of Homeland Security should
ensure that all immigrants have unrestricted

• The Department of Homeland Security should

access without delay to competent legal

ensure that each detainee receives a handbook

representation in order to be able to challenge

that provides an overview of the rules and

their detention.

procedures in effect at the facility. In addition,
DHS should ensure that all detainees receive a

• The Department of Homeland Security should

copy of the ICE National Detainee Handbook,

not enter into a contract with a facility to detain

which should include information such as the

immigrants unless the facility provides a plan for

right to contact consular officials, the right to

ensuring that immigrants will have access without

make free calls to consulates, immigration

delay to legal representation.

courts, and pro bono legal service providers, and
the availability of legal rights presentations and

• The Department of Homeland Security should

other information regarding detention standards.

ensure that facilities provide a current and

Handbooks should be provided in the language of

accurate list of local organizations and lawyers

that particular detainee.

that provide immigration advice and legal
representation to every detainee upon arrival.

• The Department of Homeland Security should

Facilities should be required to provide telephone

ensure that all detention facilities provide

calls to these service providers free of charge.

adequate and regular interpretation and
translation services for immigration detainees.

• The Department of Homeland Security should
ensure that all immigrant detainees have daily

• The Department of Homeland Security should

access to updated and comprehensive jail law

ensure that detainees are held in a facility that

libraries and services. Individuals without legal

is in close proximity to the immigration court
45

with jurisdiction over his or her case, as well

• The Department of Homeland Security should

as to the detainee’s attorney and family. All

terminate contracts with facilities that do not

measures should be taken to prevent the transfer

comply with detention standards.

of detainees to facilities that are far away from
the immigration court with jurisdiction over their

• The Department of Homeland Security should

case, their lawyers and their families. Should a

ensure that immigrants and asylum seekers are

transfer take place, all measures should be taken

not confined with individuals held on criminal

by the detention and removal officer in charge to

charges or serving criminal sentences.

inform the court with jurisdiction over the case,
the attorney of record, and the immigrant’s family

• The Department of Homeland Security should

in advance of the transfer; the officer should

immediately begin consultations with transgender

include the reasons why and ensure that the

organizations to identify best practices for policies

detainee’s legal documents and medical records

in making housing decisions in a detention facility.

are immediately transferred to the new facility.
• The Department of Homeland Security
should ensure that medical and mental

ENSURE THAT FACILITIES HOUSING
IMMIGRATION DETAINEES COMPLY WITH
INTERNATIONAL STANDARDS AND ARE
HELD ACCOUNTABLE IF THEY DO NOT

health care be available at no cost to detained

• The Department of Homeland Security should
ensure the adoption of enforceable human
rights detention standards in all detention
facilities that house immigration detainees, either
through legislation or through the adoption of
enforceable policies and procedures. There
should be effective independent oversight to
ensure compliance with detention standards and
accountability for violations.

• The Department of Homeland Security should

immigrants and asylum-seekers; the decision
to deny medical care should be reviewed by an
independent appeals board composed of medical
professionals.

ensure that any detained immigrants are held in
facilities which offer outdoor recreation with at
least one hour of recreation time at a reasonable
hour (during daylight hours and at a time that
affords detainees adequate sleep) on a daily basis.
• The Department of Homeland Security should
ensure that restraints are not used on immigration

• The US Congress should ensure that detainees

detainees except in certain limited situations in

have the ability make confidential complaints

order to prevent escape during a transfer, to

about conditions of detention directly to an

prevent the person from injuring himself or others,

independent agency, such as an ombudsman.

or to prevent the person from damaging property.

Calls to such an agency should be free of charge

They should only be used for as long as is strictly

and detainees should be protected from any

necessary. Policies should prohibit the use of

retaliatory actions. These complaints should be

restraints on pregnant women when they are being

promptly investigated and appropriate redress

transported, when they are in hospital awaiting

provided. The US General Accounting Office

birth, and after they have just given birth. Restraints

and/or the Office of Inspector General should

should always be removed when a person appears

review complaints made and where patterns are

before a judicial or administrative authority.

identified conduct their own investigations and
make recommendations to Congress.

46

JAILED WITHOUT JUSTICE Immigration Detention in the USA

ENDNOTES
1. An individual is eligible for protection under the Convention
Against Torture if he or she can demonstrate that it is “more likely
than not” that he or she will be subjected to torture upon removal
to his or her country of origin. 8 CFR § 1208.16 -1208.18.
2. Individuals subject to “mandatory detention” in the United
States are not entitled to a bond hearing before an immigration
judge. See INA § 236(c). In July 2008, the Court of Appeals
for the Ninth Circuit determined that individuals who have a
stay of removal pending a decision on their appeals before the
circuit courts, or whose cases have been remanded to the Board
of Immigration Appeals after obtaining judicial review, are not
subject to mandatory detention and therefore have the right to a
bond hearing. See Casas-Castrillon v. Department of Homeland
Security, 535 F.3d 942 (9th Cir. 2008). Because Mr. M had a
stay of removal pending a decision on his appeal, he benefited
from this decision and was provided with a bond hearing.
3. Amnesty International correspondence with Mr. M’s attorney
(identity withheld), January 12 2009.
4. Office of the Inspector General, US Department of Justice, Audit
Report 97-05 (1/97), Immigration and Naturalization Service
Contracting for Detention Space, January 1997, page 2, available
at: http://www.usdoj.gov/oig/reports/INS/a9705/index.htm.
5. United States Government Accountability Office, Alien
Detention Standards: Observations on the Adherence to ICE’s
Medical Standards in Detention Facilities, June 4, 2008 available
at: http://www.gao.gov/new.items/d08869t.pdf.
6. In its 2009 budget, DHS requested $46 million to pay for
an additional 1,000 detention bed spaces. However, the total
amount allocated was $71.7 million, which would be enough
for 1,400 beds. See US Department of Homeland Security
fact sheet, US Department of Homeland Security Announces
6.8 Percent Increase in Fiscal Year 2009 Budget Request, 4
February 2008, available at: http://www.dhs.gov/xnews/releases/
pr_1202151112290.shtm; US Department of Homeland Security,
US Immigration and Customs Enforcement Fact Sheet Fiscal Year
2009, 23 October 2008, available at: http://www.ice.gov/doclib/pi/
news/factsheets/2009budgetfactsheet.doc.
7. US Department of Homeland Security Annual Report,
Immigration Enforcement Actions: 2007, December 2008,
available at: http://www.dhs.gov/xlibrary/assets/statistics/
publications/enforcement_ar_07.pdf
8. ICE currently detains individuals in seven privately contracted
detention facilities, eight ICE-owned facilities and five Federal
Bureau of Prison facilities. See Immigration and Customs
Enforcement, Detention Management Program, 4 November
2008, available at: http://www.ice.gov/partners/dro/dmp.
htm?searchstring=detention%20AND%20management%20
AND%20control%20AND%20program.
9. Detention Watch Network, About the U.S. Detention
and Deportation System, available at: http://www.
detentionwatchnetwork.org/aboutdetention.
10. American Immigration Lawyers Association, Alternatives
to Detention Position Paper, available at: http://www.aila.org/
Content/default.aspx?docid=25874.
11. Vera Institute of Justice, Testing Community Supervision for
the INS: An Evaluation of the Appearance Assistance Program,
Volume I, Final Report to the Immigration and Naturalization
Service, 1 August 2000, available at: http://www.vera.org/
publication_pdf/aapfinal.pdf.

12. Migration Policy Institute, Annual Immigration to the United
States: The Real Numbers, No. 16, May 2007, available at: http://
www.migrationpolicy.org/pubs/FS16_USImmigration_051807.
pdf; See also US Department of Homeland Security, Yearbook
of Immigration Statistics: 2007, Washington, DC, September
2008, available at: http://www.dhs.gov/xlibrary/assets/statistics/
yearbook/2007/ois_2007_yearbook.pdf.
13. This is an estimate, since the exact numbers are not
known. See, for example, Migration Policy Institute, Annual
Immigration to the United States: The Real Numbers, No. 16,
May 2007, available at: http://www.migrationpolicy.org/pubs/
FS16_USImmigration_051807.pdf; See also US Department of
Homeland Security, Yearbook of Immigration Statistics: 2007,
Washington, D.C., September 2008, available at: http://www.dhs.
gov/xlibrary/assets/statistics/yearbook/2007/ois_2007_yearbook.
pdf; and Michael Hoefer, Nancy Rytina and Bryan C. Baker,
Estimates of the Unauthorized Immigrant Population Residing in
the United States: January 2007, US Department of Homeland
Security, Office of Immigration Statistics, Policy Directorate,
available at: http://www.dhs.gov/xlibrary/assets/statistics/
publications/ois_ill_pe_2007.pdf
14. Michael Hoefer, Nancy Rytina and Bryan C. Baker, Estimates
of the Unauthorized Immigrant Population Residing in the United
States: January 2007, US Department of Homeland Security,
Office of Immigration Statistics, Policy Directorate, available at:
http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_
pe_2007.pdf.
15. These five countries account for approximately 72 per cent of
the total number of unauthorized immigrants entering the United
Sates in 2007. See Michael Hoefer, Nancy Rytina and Bryan
C. Baker, Estimates of the Unauthorized Immigrant Population
Residing in the United States: January 2007, US Department
of Homeland Security, Office of Immigration Statistics, Policy
Directorate, Table 3, Page 4, available at: http://www.dhs.gov/
xlibrary/assets/statistics/publications/ois_ill_pe_2007.pdf.
16. See Human Rights Watch, Blood, Sweat and Fear: Workers’
Rights in U.S. Meat and Poultry Plants, 24 January 2005,
available at http://www.hrw.org/en/reports/2005/01/24/bloodsweat-and-fear-0.
17. Unauthorized immigrants are ineligible for public medical
assistance programs. 1996 Personal Responsibility and Work
Opportunity Reconciliation Act (PRWOR) (PL 104-193). See also
Guide to Immigrant Eligibility for Federal Program, 4th ed., Table
1, National Immigration Law Center, 2002, at: http://www.nilc.org/
pubs/guideupdates/tbl1_ovrvw_fed_pgms_032505.pdf.
18. Peter Hart, Dobbs’ Choice: CNN Host Picks Immigration
As His Ax to Grind, Extra!, Fairness and Accuracy in Reporting,
January/February 2004, available at: http://www.fair.org/index.
php?page=1162.
19. James Pendergraph, speaking at the Police Foundation
National Conference, The Role of Local Police: Striking a
Balance between Immigration Enforcement and Civil Liberties,
Washington, D.C.
20. Representative Lynn Woolsey (Democrat-California),
Testimony on Immigration Raids: Postville and Beyond,
Committee on Judiciary, Subcommittee on Immigration,
Citizenship, Refugees, Border Security, and International, 22
July 2008.

47

21. Immediate deportation can happen in a variety of ways.
For example, an individual may be offered the opportunity to
withdraw his or her application to enter the United States; he
or she may be also be deported through processes known
as “expedited removal” or “stipulated removal,” which means
that an individual is not placed in formal removal (deportation)
proceedings and waives the right to a hearing before an
immigration judge.
22. A full list of cases is on file with Amnesty International. See
further: Section 3.3 Mandatory Detention.
23. Zadvydas v. Davis, 533 US 678, 690 (2001).
24. US Government Accountability Office, Alien Detention
Standards: Observations on the Adherence to ICE’s Medical
Standards in Detention Facilities, 4 June 2008, available at:
http://www.gao.gov/new.items/d08869t.pdf.
25. From Persecution to Prison: The Health Consequences of
Detention for Asylum Seekers, Physicians for Human Rights and
the Bellevue/NYU Program for Survivors of Torture, June 2003,
page 5, available at: http://physiciansforhumanrights.org/library/
documents/reports/report-perstoprison-2003.pdf.

34. See UNHCR ExCom Conclusion No. 44 (XXXVII) – 1986,
Detention of Refugees and Asylum Seekers, Paragraph (b);
UNHCR Revised Guidelines on Applicable Criteria and Standards
Relating to the Detention of Asylum Seekers, February 1999,
Guideline 3: Exceptional Grounds for Detention; Report of UN
Special Rapporteur on the Human Rights of Migrants, Gabriela
Rodríguez Pizarro, E/CN.4/2003/85, Paragraph 35.
35. A. v. Australia, Human Rights Committee Communication No
560/1993: Australia. 30/04/97. CCPR/C/59/D/560/1993.
36. Report of the Working Group on Arbitrary Detention on
its visit to the United Kingdom, E/CN.4/1999/63/Add.3, 18
December 1998, Recommendation 33.
37. Article 9 (4), ICCPR.
38. UN Human Rights Committee, Communication No. 560/1993.
39. See UN Body of Principles for the Protection of All Persons
under any form of Detention or Imprisonment, and UN Standard
Minimum Rules for the Treatment of Prisoners.

26. See Kathleen Glynn and Sarah Bronstein, Systemic Problems
Persist in U.S. ICE Custody Reviews for Indefinite Detention,
Catholic Legal Immigration Network, Inc., 2005, available at:
http://www.cliniclegal.org/DSP/Indefinite2005FINALforRELEASE.pdf.

40. UN Convention relating to the Status of Refugees, 1951.

27. These are individuals seeking admission to the United
States and are classified as “arriving aliens”. The Department of
Homeland Security defines this category to include individuals
apprehended within 100 miles of the border and within 14 days
of entry. See US Department of Homeland Security, Department
of Homeland Security Streamlines Removal Process Along
Entire U.S. Border, Office of the Press Secretary, 30 January
2006, available at: http://www.dhs.gov/xnews/releases/press_
release_0845.shtm.

42. See Sanremo Declaration on the Principle of Nonrefoulement, 2001.

28. Amy Goldstein and Dana Priest, Five Detainees Who Took
Their Lives, The Washington Post, 13 May 2008, page A08.
29. See US Immigration and Customs Enforcement, Press
Release, ICE Announces New Performance-Based National
Detention Standards for all ICE Detention Facilities, 12
September 2008, available at: http://www.ice.gov/pi/
nr/0809/080912washington.htm?searchstring=DETENTION%20
AND%20STANDARDS%20AND%20COMPLIANCE.
30. As Amnesty International conducted research for the
most part before September 2008, analysis focuses on the
2000 Detention Standards. The standards published by US
Immigration and Customs Enforcement (ICE) in September 2008
contain forty-one (41) Performance-Based National Detention
Standards, four of which are new. These include: News Media
Interviews and Tours, Searches of Detainees, Sexual Abuse and
Assault Prevention and Intervention, and Staff Training.
31. A more comprehensive overview of human rights standards
relating to migrants, asylum seekers and refugees is beyond the
scope of this report but is available in Amnesty International’s
research guides, Migration-Related Detention: A research guide
on human rights standards relevant to the detention of migrants,
asylum-seekers and refugees and in the Amnesty International
Report, Living in the Shadows: A Primer on the Human Rights
of Migrants.
32. Article 9, Universal Declaration of Human Rights (UDHR);
Article 9, International Covenant on Civil and Political Rights
(ICCPR).
33. Report of the Working Group on Arbitrary Detention, 18
December 1998, E/CN.4/1999/63, paragraph 69. See Report of

48

the Working Group on Arbitrary Detention, A/HRC/7/4, 10 January
2008, paragraph 53.

41. Article 3, UN Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment.

43. Article 16, International Convention on the Protection of the
Rights of All Migrant Workers and Members of their Families.
44. Article 25, International Convention on the Protection of the
Rights of All Migrant Workers and Members of their Families.
45. Amici Curiae Brief, Florence Immigrant and Refugee Rights
Project, et al, in Casas-Castrillon v. Lockyer, No. 07-56261.
46. Report of the U.N. Working Group on Arbitrary Detention,
Addendum: Mission to Equatorial Guinea: A/HRC/7/4/Add.3, 18
February 2008, Paragraph 100.
47. Under US law, if an individual is apprehended at the border
and the Department of Homeland Security suspects that he or
she does not have permission to enter the United States, he or
she is deemed “inadmissible” and classed as an “arriving alien.”
INA Section 235(b)(2). The Department of Homeland Security
defines this category to include individuals apprehended within
100 miles of the border and within 14 days of entry. See US
Department of Homeland Security, Department of Homeland
Security Streamlines Removal Process Along Entire U.S. Border,
Office of the Press Secretary, 30 January 2006, available at:
http://www.dhs.gov/xnews/releases/press_release_0845.shtm.
48. While many of those seeking entry to the United States
are turned away at its borders, those who express a fear of
persecution or torture on return, are entitled to have the
opportunity to speak with an immigration officer who conducts
a “credible fear” interview. If they pass this interview, they are
placed in adversarial removal proceedings which determine
whether or not they should be deported. See INA § 235(b)(1)(B).
49. A lawful permanent resident can be considered an arriving
alien if she is seeking “admission.” INA § 101(a)(13)(C). This
can happen, for example, because they remained outside the
United States for more than 180 days or may have committed
certain crimes.
50. INA § 212 (d)(5)(A). The concept of “parole” in immigration
law is complex. It is not considered an admission into the
United States, but does permit a person to remain while another

JAILED WITHOUT JUSTICE Immigration Detention in the USA
proceeding is pending. See also Shaughnessy v. US ex rel. Mezei,
345 US 206, 210 (1953).
51. The new guidelines state that parole decisions for individuals
who have established credible fear are to be made only on
a case-by-case basis for “urgent humanitarian reasons” or
“significant public benefit.” Persons found to have credible fear
must now fall within one of the five criteria of 8 C.F.R. § 212.5
(b); (1) Persons with serious medical issues or impairment;
(2) Women medically certified as pregnant; (3) Juveniles; (4)
Witnesses in proceedings; and (5) Persons whose continued
detention is not in the public interest. See ICE Directive 7-1.0,
Myers, Asst. Secy., 6 November 2007.
52. Department of Justice regulations specifically divest
immigration judges of jurisdiction to review detention decisions
of individuals apprehended at the border. 8 CFR §§1003.19(h)
(2)(i)(B) and 1236.1(c)(11); Matter of Oseiwusu, 22 I & N Dec.
19 (BIA 1998). Although the current law would suggest that
people seeking admission at a port of entry (those not subject
to expedited removal) are generally eligible for a bond hearing
under INA § 236(a), DHS has taken the position that only people
apprehended inside the United States are eligible for a bond
hearing under INA § 236(a).
53. US Committee for Refugees and Immigrants, World Refugee
Survey 2006: United States, available at: http://www.refugees.org/
countryreports.aspx?__VIEWSTATE=dDwtOTMxNDcwOTk7O2w
8Q291bnRyeUREOkdvQnV0dG9uOz4%2BUwqzZxIYLI0SfZCZu
e2XtA0UFEQ%3D&cid=1607&subm=&ssm=&map=&searchtex
t= See also US Commission on International Religious Freedom,
Expedited Removal Study Report Card: Two Years Later, February
2007, pages 5-6, available at: http://www.uscirf.gov/images/
stories/pdf/scorecard_final.pdf.
54. INA § 236 (a) (2), 8 U.S.C.A. § 1226 (a)(2)(A) and (B).
55. AI correspondence with immigration judges (identities
withheld) (on file with Amnesty International USA), October 2008.
56. 8 CFR § 236.1(c)(8) The factors commonly considered in
making the determination to release and/or set bond include
local family ties; prior arrests, convictions, appearances at
hearings; membership in a community organization; manner of
entry and length of time in the United States; and financial ability
to post bond. See, for example, Matter of Patel, 15 I&N Dec. 666
(BIA 1976); Matter of San Martin, 15 I&N Dec. 167 (BIA 1974);
Matter of Guerra, 24 I&N Dec. 37 (BIA 2006).
57. See 8 CFR § 1003.19.
58. Data provided to Amnesty International by the US
Department of Justice, Executive Office for Immigration Review,
26 June 2008. In 2006, the EOIR made 189,478 bond decisions
and 14,750 were denied (7.78%); in2007 the EOIR made
273,139 bond decisions and 22,254 were denied (8.15%);
in the first five months 2008 the EOIR made 201, 468 bond
decisions and 21,842 were denied (10.84%).
59. Data provided to Amnesty International by the US
Department of Justice, Executive Office for Immigration Review,
26 June 2008. Categories include: Administratively closed,
New Amount, No Jurisdiction, No Bond, Released on Own
Recognizance and No Change.
60. Executive Office for Immigration Review, FY 2007 Statistical
Year Book, Office of Planning, Analysis, and Technology, April
2008, available at: http://www.usdoj.gov/eoir/statspub/fy07syb.pdf.
61. San Antonio Express News, Ruling on Deportation Due
in June, 31 May 2007, available at: http://www.mysanantonio.
com/news/MYSA060107_02B_war_crimes_verdict_33ad4fc_
html12304.html, San Antonio Express-News, Man Cleared in
Africa Atrocities Hoping to be Released From Jail, 17 September

2007, available at: http://www.mysanantonio.com/news/
MYSA091807_03B_sierraleone_3137168_html3165.html, Heidi
Zhou, Kambo Grateful for Life on the Outside, News 8 Austin,
19 November, 2007, available at: http://www.news8austin.com/
content/your_news/default.asp?ArID=195552.
62. 8 CFR § 1003.19(i)(2).
63. INA § 236(a)(2)(A).
64. Data provided by Andrew R. Strait, Esq., Acting Coordinator/
Policy Analyst, National Community Outreach Program, Office of
Policy, US Immigration and Customs Enforcement, 16 January 2009.
65. Interview with immigration judge (identity withheld),
August 2008.
66. Based on Data from the March 2005 Current Population
Survey, the average weekly earnings for unauthorized males who
arrived between 2000 and 2005 was more than $480 (roughly
amounting to $25,000 per year). See Pew Hispanic Center Fact
Sheet, The Labor Force Status of Short-term Unauthorized
Workers, 13 April 2006, available at: http://pewhispanic.org/files/
factsheets/16.pdf.
67. Bail bondsmen or sureties are individuals who agree to
become legally liable for the debt, default, or failure in duty
of another.
68. In the 43 cases observed by the National Lawyers Guild
where bond was granted, individual detainees were 18% more
likely to receive a bond of more than $5,000 if not represented,
while detainees with legal representation were 18% more likely
to receive a bond of less than $5,000. The bond amounts for all
proceedings observed ranged from the minimum of $1,500 to
$35,000. Detainee Working Group of the New York University
Chapter of the National Lawyers Guild, Broken Justice: A Report
on the Failures of the Court System for Immigration Detainees in
New York City, Volume I, September 2006 – May 2007, page 10,
available at: http://www.nlgnyc.org/pdf/broken_justice.pdf.
69. Detainee Working Group of the New York University Chapter
of the National Lawyers Guild, Broken Justice: A Report on
the Failures of the Court System for Immigration Detainees in
New York City, Volume I, September 2006 – May 2007, page10,
available at: http://www.nlgnyc.org/pdf/broken_justice.pdf.
70. 8 CFR § 1236.1(d) provides that an unauthorized immigrant
may petition the immigration judge for “amelioration of the
conditions under which he or she may be released…[T]he
immigration judge is authorized…to detain the [individual] in
custody, release the [individual], and determine the amount
of bond, if any, under which the respondent may released.”
(emphasis added).
71. Amnesty International correspondence with immigration
judges (identities withheld) (on file with AIUSA), October 2008.
72. Data provided to Amnesty International by the US
Department of Justice, Executive Office for Immigration Review,
26 June 2008.
73. Data provided to Amnesty International by the US
Department of Justice, Executive Office for Immigration Review,
26 June 2008.
74. Immigration and Customs Enforcement did not respond to a
request from Amnesty International to provide this data.
75. INA § 236(c).
76. INA § 236(c).
77. According to Amnesty International research, at least 117
individuals have been held in mandatory detention on the basis
of crimes that were ultimately determined not to constitute an

49

aggravated felony offense for which they could be deported. See
further footnote 83.
78. Michel v. INS, 206 F.3d 253 (2nd Cir. 2000).
79. Drakes v. Zimski, 240 F.3d 246 (3rd Cir. 2001).
80. See 8 CFR § 1003.19(h)(2)(II); Matter of Joseph, 22 I & N
Dec. 799 (BIA 1999).
81. According to the US Department of Justice, 58 per cent of
individuals do not have a lawyer during removal proceedings.
However, 84 per cent of detained immigrants have no legal
representation. See Department of Justice, FY 2007 Statistical
Yearbook, Executive Office for Immigration Review, April 2008,
figure 9 at G1, available at: http://www.usdoj.gov/eoir/statspub/
fy07syb.pdf. Nina Siulc, Zhifen Cheng, Arnold Son, and Olga
Byrne, Improving Efficiency and Promoting Justice in the
Immigration System: Lessons from the Legal Orientation Program,
Report Summary, Vera Institute of Justice, May 2008, available
at: http://www.vera.org/publication_pdf/477_877.pdf.
82. A full list of cases is on file with Amnesty International.
This number does not capture all of the individuals who are
incorrectly subject to mandatory detention, and is therefore an
underestimate. In order to identify cases Amnesty International
researchers reviewed decisions from the past 10 years in which
the circuit courts, district courts and BIA reversed an immigration
judge’s finding that an individual was an aggravated felon, and
therefore subject to mandatory detention. This number does not
account for individuals who were unable to secure representation
to pursue an appeal before the circuit courts and/or the BIA. It
also does not include incorrect findings of “crimes involving
moral turpitude,” firearms offenses, controlled substances
offenses, or other miscellaneous crimes triggering mandatory
detention. Finally, it does not capture instances in which an
immigration judge terminated removal proceedings because the
government could not demonstrate the person was deportable.
83. The UN Working Group on Arbitrary Detention has explicitly
stated that where the detention of unauthorized immigrants is
mandatory, regardless of their personal circumstances, it violates
the prohibition of arbitrary detention in Article 9 of the UDHR
and Article 9 of the ICCPR. See Report of the Working Group
on Arbitrary Detention on its visit to the United Kingdom, E/
CN.4/1999/63/Add.3, 18 December 1998, Recommendation 33.
84. AI interview with Y.S. (identity withheld), June 2008.
85. A person can claim citizenship on a number of grounds,
including birth in the United States (INA § 301(a), (b) and (f)),
the citizenship of one or both parents (INA § 301(c), (d), (g) and
(h)), a combination of parental citizenship and residence (INA §
320 and INA § 322), or through naturalization (INA § 316).
86. Wall Street Journal, They Say They Were Born in the
U.S.A. The State Department Says Prove It: An Old Scam Casts
Doubt on the Citizenship Of Texans Delivered by Midwives,
11 August 2008, available at: http://online.wsj.com/article/
SB121842058533028907.html.
87. ACLU Press Release, Illegally Deported U.S. Citizen
Pedro Guzman Found After Nearly Three Months In Mexico, 7
August 2007, available at: http://www.aclu.org/immigrants/
gen/32450prs20070807.html.
88. Testimony of Kara Hartzler, Florence Immigrant and
Refugee Rights Project, before the House of Representatives
Subcommittee on Immigration, Citizenship, Refugees, Border
Security and International Law Hearing on Problems with ICE
Interrogation, Detention and Removal Procedures, Second
Session of the 110th Congress, 13 February 2008, serial
Number 110-80, available at: http://judiciary.house.gov/hearings/
printers/110th/40742.PDF.

50

89. In calendar year 2007, Legal Orientation Providers identified
322 people with potential claims to US citizenship. See Nina
Siulc, Zhifen Cheng, Arnold Son, and Olga Byrne, Improving
Efficiency and Promoting Justice in the Immigration System:
Lessons from the Legal Orientation Program, Report Summary,
Vera Institute of Justice, May 2008, page 1, available at: http://
www.vera.org/publication_pdf/477_877.pdf.
90. Lawful Permanent Resident (LPR) status allows for residing
and working in the United States. An LPR is sometimes referred
to as a green card holder.
91. An individual is eligible for protection under the Convention
Against Torture if he or she can demonstrate that it is “more likely
than not” that he or she will be subjected to torture upon removal
to his or her country of origin. 8 CFR §§ 1208.16 -1208.18.
92. Amici Curiae Brief, Florence Immigrant and Refugee Rights
Project, et al, in Casas-Castrillon v. Lockyer, No. 07-56261.
93. Woodby v. INS, 385 U.S. 276 (1966).
94. This is of particular concern given that BIA case law
recognizes that the admission of a crime involving moral
turpitude is only valid if: (1) the admitted conduct constitutes
the elements of a crime; (2) the applicant was provided with
the definition and essential elements of the offense prior to
admission; and (3) the admission was voluntary. See Matter of K,
7 I & N Dec. 594, 598 (BIA 1957).
95. Matter of Kotliar, 24 I & N Dec. 124 (BIA 2007).
96. INA §241(a)(1)(A).
97. INA §241(a)(2).
98. INA §241(a)(3)(A-D). Two US Supreme Court decisions,
Zadvydas v. Davis and Clark v. Martinez mandate the release
of immigrants 180 days after the issuance of a final removal
order, if repatriation to their country of origin is not likely to
occur in the reasonably foreseeable future except in “special
circumstances.” Prior to Zadvydas, the Government had a policy
of detaining individuals even when there was virtually no chance
they would actually be removed. In the aftermath of the decision,
new regulations were promulgated in order to comply with
the Supreme Court decision. Under these regulations, If DHS
cannot remove a migrant within the 90-day removal period, the
Government is required to provide a post-order custody review
to determine if the individual is a flight risk or danger to national
security. If the individual remains in detention six months after
the removal order has become final, another custody review is to
be conducted.
99. Kathleen Glynn and Sarah Bronstein, Systemic Problems
Persist in U.S. ICE Custody Reviews for Indefinite Detention,
Catholic Legal Immigration Network, Inc., 2005, available at:
http://www.cliniclegal.org/DSP/Indefinite2005FINALforRELEASE.
pdf. See also Amici Curiae Brief, Pennsylvania Immigration
Resource Center, Wilks v. DHS, Docket No. 08-3352, 16
September 2008.
100. Doissaint v. Chertoff, No. C08-0584-MJP (W. D. Wash.
Aug, 26 2008) (adopting the report and recommendation of US
Magistrate Judge Theiler).
101. See Thangaraja v. Gonzales 428 F.3d 870 (9th Cir. 2005);
Thangaraja v. Ashcroft 107 Fed.App’x. 815 (9th Cir. 25 Aug. 25,
2004); Pet. For Writ of Habeas Corpus, Thangaraja v. Gonzales,
No. 05CV1608 (S.D. Cal. Aug. 12, 2005); Stipulated Notices
of Dismissal, Thangaraja v. Gonzales, No. 05 CV 1608 (S.D.
Cal. June 7, 2006) See also ACLU of Southern California, Press
Release, Sri Lankan Torture Victim Released After Nearly Five
Years, 27 March 2008, available at http://www.aclu-sc.org/
releases/view/101728.

JAILED WITHOUT JUSTICE Immigration Detention in the USA
102. Amnesty International, Irregular Migrants and Asylumseekers: alternatives to immigration detention, POL 33/001/2009.
103. Amnesty International, Irregular Migrants and Asylumseekers: alternatives to immigration detention, POL 33/001/2009.
104. Vera Institute of Justice report, Testing Community
Supervision for the INS: An Evaluation of the Appearance
Assistance Program, Volume I, Final Report to the Immigration
and Naturalization Service, August 1, 2000, available at: http://
www.vera.org/publication_pdf/aapfinal.pdf.
105. Between 2004 and 2005, Congress appropriated
approximately $14 million for the exploration of alternatives to
detention. In 2008 this had increased to $53 million. Testimony
of Michelle Brane of the Women’s Commission for Refugee
Women and Children before the Department of Homeland
Security Subcommittee on Border, Maritime and Global
Counterterrorism, “Crossing the Border: Immigrants in Detention
and Victims of Trafficking,” 15 March 2007, available at: http://
homeland.house.gov/SiteDocuments/20070315162728-15975.
pdf. Gabriela Reardon, Immigrants Fight Restrictions at
Home, City Limits Weeklxy (New York), No. 655, 8 September
2008, available at: http://www.citylimits.org/content/articles/
viewprintable.cfm?article_id=3616.
106. US Immigration and Customs Enforcement Fact Sheet,
Alternatives to Detention, 26 November2008, available at: http://
www.ice.gov/pi/news/factsheets/080115alternativestodetention.htm.
107. US Immigration and Customs Enforcement Fact Sheet,
Alternatives to Detention, 26 November2008, available at: http://
www.ice.gov/pi/news/factsheets/080115alternativestodetention.htm.
108. US Immigration and Customs Enforcement Fact Sheet,
Alternatives to Detention, 26 November2008, available at: http://
www.ice.gov/pi/news/factsheets/080115alternativestodetention.htm.
109. Report of UN Special Rapporteur on the Human Rights
of Migrants, Gabriela Rodríguez Pizarro, E/CN. 4/2003/85,
Paragraph 43.
110. See Richard L. Skinner, ICE Policies Related to Detainee
Deaths and the Oversight of Immigration Detention Facilities,
Office of Inspector General, Department of Homeland Security,
June 2008, available at: http://www.dhs.gov/xoig/assets/
mgmtrpts/OIG_08-52_Jun08.pdf; Report to Congressional
Requesters, Alien Detention Standards, US Government
Accountability Office, July 2007, available at: http://www.gao.
gov/new.items/d07875.pdf; David M. Zavada, Treatment of
Immigration Detainees Housed at Immigration and Customs
Enforcement Facilities, Office of Inspector General, Department
of Homeland Security, December 2006, available at: http://www.
dhs.gov/xoig/assets/mgmtrpts/OIG_07-01_Dec06.pdf.
111. Report of the Working Group on Arbitrary Detention, E/
CN.4/1998/44, Paragraph 33(a).
112. Article 14(3)(d) ICCPR; Principle 17(2), UN Body of
Principles for the Protection of All Persons under Any Form of
Detention and Imprisonment, 1988.
113. By statute, a person has the “privilege” of counsel. See INA
§ 240(b)(4)(A).
114. The cost of legal representation can run in to tens of
thousands of dollars, while immigrants earn on average wages
that are well below the national average. Based on data from
the March 2005 Current Population Survey, the average weekly
earnings for unauthorized males who arrived between 2000 and
2005 was approximately $480 (roughly amounting to $25,000
per year). See Pew Hispanic Center Fact Sheet, The Labor
Force Status of Short-term Unauthorized Workers, 13 April 2006,
available at: http://pewhispanic.org/files/factsheets/16.pdf.

115. Department of Justice, FY 2007 Statistical Yearbook,
Executive Office for Immigration Review, April 2008, Figure 9 at
G1, available at: http://www.usdoj.gov/eoir/statspub/fy07syb.pdf.
116. According to the EOIR, between 1 October 2006, and
20 September 2007, approximately 84 per cent of completed
detained immigration court proceedings involved unrepresented
individuals. Nina Siulc, Zhifen Cheng, Arnold Son, and Olga
Byrne, Improving Efficiency and Promoting Justice in the
Immigration System: Lessons from the Legal Orientation Program,
Report Summary, Vera Institute of Justice, May 2008, available
at: http://www.vera.org/publication_pdf/477_877.pdf.
117. See Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), Matter
of Assad, 23 I&N Dec. 553 (BIA 2003), Olvera v. INS, 504 F.2d
1372 (5th Cir. 1974), Orantes-Hernandez v. Thornburgh, 919
F.2d 549 (9th Cir. 1990), Saakian v. INS, 252 F.3d 21 (1st Cir. 2001).
118. Matter of Enrique Salas Compean; Matter of Sylla Bangaly;
Matter of J-E-C-, et al. 24 I&N Dec. 710 (A.G. 2009).
119. The Transactional Records Access Clearinghouse’s
Immigration Project of Syracuse University (TRAC) looked at the
results of 297,240 asylum cases from the fiscal years of 1994
through the first few months of 2005 and found that asylum
claims with representation were five times more likely to be
approved by immigration judges than those that proceeded pro
se. See Table 1, available at: http://trac.syr.edu/immigration/
reports/160/.
120. 8 C.F.R. §1240.10 (a)(2).
121. See list of New York City pro bono and low fee attorneys
(scroll down for New York City organizations/attorneys): http://
www.usdoj.gov/eoir/probono/freelglchtNY.htm
122. Amnesty International interview, Holly Cooper, Lecturer,
and Raha Jorjani, Supervising Attorney, Immigration Law Clinic,
University of California, Davis, June 2008.
123. See Article 9(2) ICCPR; UN Body of Principles for the
Protection of All Persons under Any Form of Detention or
Imprisonment, 1988.
124. See ICE/DRO Detention Standards: Law Libraries and Legal
Material, available at: http://www.ice.gov/doclib/PBNDS/pdf/law_
libraries_and_legal_material.pdf.
125. Nina Siulc, Zhifen Cheng, Arnold Son, and Olga Byrne,
Legal Orientation Program: Evaluation and Performance and
Outcome Measurement, Phase II, Vera Institute of Justice, May
2008, Page v, available at: http://www.vera.org/publication_
pdf/475_874.pdf.
126. Nina Siulc, Zhifen Cheng, Arnold Son, and Olga Byrne,
Improving Efficiency and Promoting Justice in the Immigration
System: Lessons from the Legal Orientation Program, Report
Summary, Vera Institute of Justice, May 2008, page 2, available
at: http://www.vera.org/publication_pdf/477_877.pdf.The 13
current LOP sites are located at detention facilities in: Eloy,
Arizona; Lancaster and San Diego, California; Aurora, Colorado;
Kearny and New Brunswick, New Jersey; Batavia, New York;
York, Pennsylvania; El Paso, Houston, Pearsall, and Port Isabel,
Texas; and Tacoma, Washington. The 12 new program sites are
located at detention facilities in: Florence, Arizona; Los Angeles,
California; Miami, Florida; Lumpkin, Georgia; Jena, Louisiana;
Newark, New Jersey; Chaparral, New Mexico; Leesport,
Pennsylvania; Raymondville, Texas; and Farmville, Portsmouth,
and Hanover, Virginia. See Executive Office for Immigration
Review, News Release, EOIR Adds 12 New Legal Orientation
Program Sites, 15 October 2008, available at: http://www.usdoj.
gov/eoir/press/08/LegalOrientationProgramExpands101508.htm.

51

127. Amnesty International requested information from ICE on
the role of ICE officers in detention facilities; however ICE failed
to respond.
128. Amy Goldstein and Dana Priest, In Custody, in Pain,
Washington Post, 12 May 2008, page A01; Amy Goldstein and
Dana Priest, Lawsuit Leads to Release of Immigrant, Washington
Post, 3 July 2008, page A02.
129. Principle 20, UN Body of Principles for the Protection of All
Persons under any form of Detention or Imprisonment.
130. Chris Nugent and Leon Fresco, Mentally Ill Gay Guyanese
Victim of Torture is Freed From a Complex Odyssey of Over Six
Years in Immigration Detention, Immigration Daily, ILW.com, 22
December 2006, available at: http://www.asylumlaw.org/docs/
sexualminorities/Guyana122206.pdf.
131. See US Government Accountability Office, Report GAO-0785, Alien Detention Standards: Telephone Access Problems Were
Pervasive at Detention Facilities; Other Deficiencies Did Not Show
A Pattern of Noncompliance, July 2007 available at: http://www.
gao.gov/new.items/d07875.pdf.
132. ICE/DRO Detention Standards, Telephone Access, available
at: http://www.ice.gov/doclib/PBNDS/pdf/telephone_access.pdf.
133. Rule 8(c), UN Standard Minimum Rules for the Treatment
of Prisoners; Guideline 10(iii), UNHCR Revised Guidelines on
Applicable Criteria and Standards Relating to the Detention of
Asylum Seekers.
134. Sacramento County Jail and Santa Clara County Jail,
California; Clay County Jail and Monroe County Jail and Palm
Beach County Jail, Florida; East Point Jail, Georgia; Phelps
County Correctional Facility, Nebraska; Rockingham County Jail,
New Hampshire; Ulster County Jail, New York; Yamhill County
Jail, Oregon; Berks County Prison and Lackawanna County
Prison, Pennsylvania; Johnson County Jail, Texas; Utah County
Jail, Utah; Arlington County Correctional Facility, Virginia; Platte
County Detention Center, Wyoming.
135. Julia Preston, Immigrant, Pregnant, Is Jailed Under
Pact, The New York Times, 20 July 2008, available
at: http://www.nytimes.com/2008/07/20/us/20immig.
html?_r=2&adxnnl=1&oref=slogin&adxnnlx=1216567152mVHAvtmlaL94JXmb6touHg.
136. International standards provide that chains or irons should
not be used as restraints, and other instruments of restraint
should not be used except in certain limited situations in order
to prevent escape during a transfer; to prevent the person
injuring himself or others, or from damaging property. In these
cases, restraints should only be used for as long as is “strictly
necessary.” Rule 33, UN Standard Minimum Rules for the
Treatment of Prisoners.
137. ICE/DRO Detention Standards, Transportation (By Land),
available at: http://www.ice.gov/doclib/PBNDS/pdf/transportation_
by_land.pdf.
138. Rules 33 and 34, UN Standard Minimum Rules for the
Treatment of Prisoners.
139. Amnesty International Interview, Holly Cooper, Lecturer,
Immigration Law Clinic, University of California, Davis, June 2008.
140. Principle 24, UN Body of Principles for All Persons under
Any Form of Detention or Imprisonment.
141. US Immigration and Customs Enforcement, Mortality rates
at ICE detention facilities, 17 July 2008, available at: http://www.
ice.gov/pi/news/factsheets/detention_facilities_mortality_rates.htm.

52

142. Richard L. Skinner, ICE Policies Related to Detainee Deaths
and the Oversight of Immigration Detention Facilities, Office of
Inspector General, Department of Homeland Security, June 2008,
available at: http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_0852_Jun08.pdf.
143. Nina Bernstein, Few Details on Immigrants Who Died
in Custody, The New York Times, 5 May 2008, available
at: http://www.nytimes.com/2008/05/05/nyregion/05detain.
html?_r=1&pagewanted=all.
144. Sandra Hernandez, A Lethal Limbo for Migrants, The Los
Angeles Times, 1 June 2008; Detained Immigrant with AIDS Dies,
The Associated Press, 11 August 2007.
145. From Persecution to Prison: The Health Consequences of
Detention for Asylum Seekers, Physicians for Human Rights and
the Bellevue/NYU Program for Survivors of Torture, June 2003,
page 24, available at: http://physiciansforhumanrights.org/library/
documents/reports/report-perstoprison-2003.pdf.
146. Amy Goldstein and Dana Priest, Five Detainees Who Took
Their Lives, The Washington Post, 13 May 2008, page A08.
147. David M. Zavada, Treatment of Immigration Detainees
Housed at Immigration and Customs Enforcement Facilities,
Office of Inspector General, US Department of Homeland
Security, December 2006, page 23, available at: http://trac.syr.
edu/immigration/library/P1598.pdf.
148. Rule 21(1), UN Standard Minimum Rules for the Treatment
of Prisoners.
149. International standards limit the legitimate purposes
and scope of the use of force. For example, Rule 54(1) of the
Standard Minimum Rules for the Treatment of Prisoners permit
staff to use force for self-defense, to prevent escape, and in
cases of active or passive physical resistance to an order based
on law or regulation.

JAILED WITHOUT JUSTICE Immigration Detention in the USA

SCOPE AND METHODOLOGY

People who enter or work in countries without legal

Information for this report was gathered from a variety

authorization have been labeled illegal, undocumented

of sources from across the country, including

or irregular. The term “irregular migrant” is increasingly

immigration law practitioners, non-governmental

used in international human rights standards and in

organizations (NGOs) working with immigrants, asylum

the commentary of UN and regional human rights

seekers, immigration judges, government officials,

bodies to refer to individuals who do not have legal

and more than 100 letters received and reviewed by

permission to remain in a host country.

Amnesty International from immigrants in detention.
In-depth interviews were conducted with twenty

In the United States, the term “undocumented

detained and formerly detained immigrants and asylum

immigrant” is often used in discussing anyone

seekers. It also draws from responses to surveys sent

subject to enforcement or deportation actions.

by Amnesty International to officials of the Executive

However, many immigrants entered the United States

Office for Immigration Review and facilities housing

with documentation and have since lapsed out of

immigration detainees, as well as immigration hearings

status or have a status that is being questioned by

observed in both San Francisco, Calif., and New

the government. In this report, therefore, Amnesty

York, N.Y., by Amnesty International researchers.

International USA uses the phrase unauthorized

Furthermore, Amnesty International conducted a

immigrant to describe individuals who currently have

review of government and non-governmental reports

no, or uncertain, legal status in the United States.

and statistics, case law, and legislation, as well as

For example, a person who arrives in the United

media accounts. Most case studies were followed

States on a student visa but then remains past the

up by interviews with the attorneys representing

permitted term of stay is unauthorized: she or he

the immigrants and asylum seekers concerned. To

was originally documented and legally allowed into

protect their identities, the names of the individuals

the United States but now the status has lapsed.

in the case studies who were not reported in the

Likewise, a migrant worker who crossed the southern

media were changed or withheld. All featured cases

border without the government’s permission is also

are on file with Amnesty International.

an unauthorized immigrant.

The Department of Homeland Security, Immigration

If DHS has a reasonable belief that an individual

and Customs Enforcement did not respond to

does not have permission to enter or remain in the

Amnesty International’s repeated requests for data.

United States, then that person may be placed in

Of the 243 facilities housing immigration detainees

“removal proceedings,” which means the government

that were surveyed, only 21 responded.

is seeking to deport him or her from the United
States. For the purposes of this report the terms
removal and deportation are used interchangeably.

A NOTE ON TERMINOLOGY
There is no single term universally accepted that
describes the unique situation of migrants and asylum

LIST OF TERMS/ABBREVIATIONS

seekers. While some terms may have specific legal

DHS: Department of Homeland Security.

meanings, it must also be acknowledged that many

ICE: Immigration and Customs Enforcement.

may be used in a broader political or cultural context.
This report describes the human rights situation of
individuals who face detention either to prevent them
from entering the United States or to forcibly expel
them to their countries of origin. This group includes

CBP: Customs and Border Patrol.
EOIR: Executive Office for Immigration Review.
ICCPR: UN International Covenant on Civil and
Political Rights
CAT: UN Convention Against Torture

arriving (and rejected) asylum seekers, long time
lawful permanent residents, and other immigrants.

Concept and design: HartungKemp, Minneapolis

“Whether I’m documented or not, I’m a human being.
I used to think birds in a cage were so pretty
but no one should be deprived of freedom— no one
should be caged.”
Amnesty International interview with former
immigration detainee (identity withheld), June 2008.

amnestyusa.org/immigrants

 

 

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