Excerpt from March 7, 2008 report of UN Special Rapporteur on the Rights of Migrants.
II.A. Legal and political background
26. With regard to deportation policy, under current United States immigration law,
individuals arriving in the United States without the necessary visas or other legal permission to enter, including asylum-seekers and refugees, are subject to mandatory detention. In addition, persons subject to deportation procedures after being lawfully present in the United States, including legal permanent residents who have been convicted of crimes, are subject to detention. All of these persons are detained in immigration detention centres, county jails or private prisons under contract with immigration enforcement agencies for months, and sometimes years. According to testimonies heard by the Special Rapporteur, United States citizens erroneously identified as non-citizens, long-time lawful permanent residents, non-citizen veterans, and vulnerable populations with a regular legal status have also been detained for months without sufficient due process protections, including fair individualized assessments of the reasons for their detention.
27. In 2006, the Department of Homeland Security arrested over 1.6 million migrants,
including both undocumented migrants and legal permanent residents, of which over 230,000
were subsequently held in detention.
28. On average, there are over 25,000 migrants detained by immigration officials on any given day. The conditions and terms of their detention are often prison-like: freedom of movement is restricted and detainees wear prison uniforms and are kept in a punitive setting. Many detainees are held in jails instead of detention centres, since the United States uses a combination of facilities owned and operated by ICE, prison facilities owned and operated by private prison contractors and over 300 local and county jails from which ICE rents beds on a reimbursable basis. As a result, the majority of non-criminal immigrants are held in jails where they are mixed in with the prison’s criminal population. This is the case despite the fact that under United States law an immigration violation is a civil offence, not a crime. The mixture of criminal and immigrant detainees in these jails can result in the immigrants being treated in a manner that is inappropriate to their status as administrative, as opposed to criminal, pretrial or post-conviction inmates.
29. In 1996, the Immigration and Naturalization Service had a daily detention capacity
of 8,279 beds. By 2006, that had increased to 27,500 with plans for future expansion. At an
average cost of US$ 95 per person per day, immigration detention costs the United States
Government US$ 1.2 billion per year.
30. ICE reported an average stay of 38 days for all migrant detainees in 2003. Asylum-seekers granted refugee status, spend an average of 10 months in detention, with the longest period in one case being three and a half years. There are instances of individuals with final orders of removal who languish in detention indefinitely, such as those from countries with whom the United States does not have diplomatic relations or that refuse to accept the return of their own nationals. Under United States law, migrant detainees about whom the United States has certain national security concerns are subject to the possibility of indefinite detention, in contravention of international standards.
31. Migrants in detention include asylum-seekers, torture survivors, victims of human
trafficking, long-term permanent residents facing deportation for criminal convictions based on a long list of crimes (including minor ones), the sick, the elderly, pregnant women, transgender migrants detained according to their birth sex rather than their gender identity or expression, parents of children who are United States citizens, and families. Detention is emotionally and financially devastating, particularly when it divides families and leaves spouses and children to fend for themselves in the absence of the family’s main financial provider.
32. Immigrants are also often transferred to remote detention facilities, which interferes substantially with access to counsel and to family members and often causes great financial and emotional hardship for family members who are not detained. Thousands of those held in immigration detention are individuals who, by law, could be released.
33. Detention has not always been the primary enforcement strategy relied upon by the
United States immigration authorities, as it appears to be today. In 1954, the Immigration and Naturalization Service announced that it was abandoning the policy of detention except in rare cases when an individual was considered likely to be a security threat or flight risk. This reluctance to impose needless confinement was based on the concepts of individual liberty and due process, long recognized and protected in the American legal system, and also enshrined in international human rights standards.
34. Sweeping changes in immigration laws in 1996 drastically increased the number of people subject to mandatory, prolonged and indefinite detention. The increasing reliance of the United States authorities on detention as an enforcement strategy has meant that many
individuals have been unnecessarily detained for prolonged periods without any finding that they are either a danger to society or a flight risk. These practices have continued despite attempts by the United States Supreme Court to limit the Government’s discretion to indefinitely detain individuals.
35. Certain provisions of the Immigration and Nationality Act, as amended by two laws passed in 1996 (the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRAIRA)) require mandatory
detention, pending removal proceedings, of virtually any non-citizen who is placed in
proceedings on criminal grounds, as well as of persons who arrive at the country’s borders in order to seek asylum from persecution without documentation providing for their legal entry into the country. These two laws have significantly increased the number of migrants subject to mandatory detention on a daily basis, since AEDPA requires the mandatory detention of non-citizens convicted of a wide range of offences, and IIRAIRA has further expanded the list of offences for which mandatory detention is required.
36. As a result of these legislative changes, minor drug offences – such as possession of paraphernalia – as well as minor theft or other property-related offences, can result in mandatory detention and in the past decade the use of detention as an immigration enforcement mechanism has become more the norm than the exception in United States immigration enforcement policy.
37. The policy of mandatory detention also strips immigration judges of the authority to
determine during a full and fair hearing whether or not an individual presents a danger or a flight risk. Instead, certain previous convictions (and in some cases, merely the admission of having committed an offence) automatically trigger mandatory detention without affording non-citizens an opportunity to be heard as to whether or not they merit release from custody.
38. This policy also deprives immigration judges – and even the Department of Homeland
Security – of the authority to order the release of an individual, even when it is clear that he or she poses no danger or flight risk that would warrant such detention.
39. In its landmark decision, Zadvydas v. Davis, (see note 9 below) the Supreme Court held that indefinite immigration detention of non-citizens who have been ordered deported but whose removal is not reasonably foreseeable would raise serious constitutional problems.
40. Prior to Zadvydas, the Government had a policy of detaining individuals even when there was virtually no chance they would actually be removed (this has been especially
common with migrants from countries such as Cuba, Iraq, the Islamic Republic of Iran, the Lao People’s Democratic Republic, the former Soviet Uni*n and Viet Nam). The Government often referred to these individuals as “lifers”, in recognition of the fact that their detention was indefinite and potentially permanent. In the aftermath of Zadvydas, new regulations were promulgated in order to comply with the Supreme Court’s decision. Under these regulations, if the Department of Homeland Security 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 can be released. If the individual remains in detention six months after the removal order has become final, another custody review is to be conducted. Once it is determined that removal is not reasonably foreseeable, the regulations require the individual to be released under conditions of supervision.
41. Unfortunately, many problems plague the post-order custody review process. For example, some detainees never receive notice of their 90-day or 6-month custody reviews, and therefore do not have the opportunity to submit documentation in support of their release. Others never receive timely custody reviews at either the 90-day or 6-month mark. In addition, decisions to continue detention are often based on faulty reasoning and erroneous facts, ignore the law outlined by the Supreme Court in Zadvydas, or are essentially rubber-stamp decisions that fail to cite any specific evidence in support of their conclusion.
42. Frequently, these decisions ignore documentation (including letters from the detained individual’s consulate) that proves that there is no significant likelihood of removal in the reasonably foreseeable future. In other cases, the Department of Homeland Security has failed to present evidence of the likelihood of removal and instead blames detainees for failing to facilitate their own removal.
43. The Special Rapporteur notes that according to the law, individuals can be released on parole regardless of their immigration status. In practice, however, because migrants are not entitled to a review of their custody by an immigration judge, or are subjected to rubber-stamp administrative custody review decisions, their detention is essentially mandatory.
44. The Special Rapporteur acknowledges that the mission for the Department of Homeland
Security is to “lead the unified national effort to secure America” through its Immigration and Customs Enforcement agency (ICE). ICE is the largest investigative branch of the Department of Homeland Security; and seeks to protect the United States against terrorist attacks by targeting undocumented immigrants, whom the agency considers to be “the people, money and materials that support terrorism and other criminal activities”.
45. In that context, the ICE has recently shifted its approach to enforcement by bringing criminal charges against employers of irregular migrant workers, seizing their assets and charging them with money laundering violations.
Note to Section II.A
(Note 9) Ref. 533 U.S. 678 (2001).
II.B. Deportation policy
46. With regard to deportation policy, following changes to United States immigration law in 1996, non-citizens in the United States have been subjected to a policy of mandatory deportation upon conviction of a crime, including very minor ones. These persons are not afforded a hearing in which their ties to the United States, including family relationships, are weighed against the Government’s interest in deportation. According to Government sources, hundreds of thousands of persons have been deported since these laws went into effect in 1996.
47. One case that has been brought to the attention of the Special Rapporteur is that of a male migrant, originally from Haiti, who enlisted in the United States military in 1970. A lawful permanent resident, or green card holder, this individual served his adopted country for four years. Now a 52-year-old veteran with four United States citizen sons, two of whom are in the military themselves, he faces mandatory deportation because he was convicted of the possession and sale of small amounts of crack cocaine in the mid-1990s, for which he spent 16 months in prison.
48. Some 672,593 immigrants in the United States – many of whom, like the Haitian
migrant described above, were legal residents – have been deported from the country under the 1996 legislation that requires mandatory deportation of non-citizens convicted of a crime after they have served their sentence. It does not matter whether the non-citizen has lived in the United States legally for decades, built a home and family, run a business, or paid taxes. And these laws do not apply only to serious crimes, but also to minor offences.
49. The 1996 laws added new crimes to the aggravated felony ground of deportation. First, Congress added 17 additional types of crimes to the category when it passed AEDPA in
April 1996. IIRIRA added four more types of crimes to the aggravated felony definition and
lowered certain threshold requirements. Before IIRIRA, for example, theft offences and crimes of violence were treated as aggravated felonies only if the term of imprisonment was five years or more; IIRIRA reduced the term of imprisonment provision to a one-year threshold.
50. Estimates based on the United States census find that 1.6 million adults and children, including United States citizens, have been separated from their spouses and parents because of the 1996 legislation and the expansion of the aggravated felony definition. Families have been torn apart because of a single, even minor misdemeanour, such as shoplifting or drug possession.
51. Certain immigrants, for example those convicted of selling drugs and given a five-year sentence, are subject to deportation without consideration of the fact that they would be returned to persecution. This is the case under United States law, despite the fact that under the Convention relating to the Status of Refugees (a treaty binding on the United States), only refugees who have been convicted of a “particularly serious crime” and who “constitute a danger to the community” of the United States may be returned to places where they fear persecution.
52. The 1996 legislation prevents judges from considering whether there are compelling
reasons for immigrants to remain in the United States even though they have broken the law. It prevents judges from striking a balance between the reasons for deportation – i.e. the seriousness of the crime – and the length and breadth of an immigrant’s ties to the United States.
53. Out of the 1.6 million family members left behind by criminal deportees, it is estimated that 540,000 are United States citizens by birth or naturalization.
54. Despite the fact that the relevant laws were passed 10 years ago, data on the underlying convictions for deportations were released for the first time by ICE at the end of 2006 for fiscal year 2005. These data show that 64.6 per cent of immigrants were deported for non-violent offences, including non-violent theft offences; 20.9 per cent were deported for offences involving violence against people; and 14.7 per cent were deported for unspecified other crimes.
55. Applying these percentages from 2005 to the aggregate number of persons deported
reveals that some 434,495, or nearly a half million people, were non-violent offenders deported from the United States in the 10 years since the 1996 laws went into effect. In addition, some 140,572 people were deported during that same decade for violent offences.
56. Human rights law recognizes that the privilege of living in any country as a non-citizen may be conditional upon obeying that country’s laws. However, no country should withdraw that privilege without protecting the human rights of the immigrants it previously allowed to enter. Human rights law requires a
fair hearing in which family ties and other connections to an immigrant’s host country are weighed against that country’s interest in deporting him or her.
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