Excerpt from March 7, 2008 report of UN Special Rapporteur on the Rights of Migrants.
II.D. Detention and removal system
59. On 2 November 2005 the Department of Homeland Security announced to the public a
multi-year plan called the Secure Border Initiative (SBI) to increase enforcement along the
United States borders and to reduce illegal migration. The SBI is divided into two phases.
60. The first phase includes a restructuring of the detention and removal system through the expansion of expedited removal and the creation of the “catch and return” initiative, in addition to greatly strengthening border security through additional personnel and technology.
61. The second phase, the interior enforcement strategy, was unveiled to the public
on 20 April 2006. It is through this initiative that U.S. Immigration and Customs Enforcement (ICE) has expanded operations that target undocumented workers and individuals who are in violation of immigration law. The operations also target all non-citizens, including refugees, legal permanent residents, and others with permission to reside in the United States, who have any of a long list of criminal offences on their records, including minor offences, which result in the mandatory detention and deportation of these individuals in accordance with the immigration laws passed in 1996 (see note 10 below).
62. The primary goal of the IES is to “Identify and remove criminal aliens, immigration
fugitives and other immigration violators.” According to the Office of Detention and Removal Operations:
- A criminal alien is a non-citizen who has been convicted of a crime while residing in
the United States, either legally or illegally. This includes charges ranging from
shoplifting to work document fraud and murder. After having served their sentence,
these individuals face a separate administrative procedure to determine whether they
should be removed from the United States. - An immigration fugitive is someone who has been ordered deported by an immigration
judge but has not complied with the order. In actuality, a number of these deportation
orders were issued in absentia and often mailed to incorrect mailing addresses. - Other immigration violators or non-fugitive violators are people who are in some way in
violation of current immigration law, but have not been issued a final order of
deportation. This includes people who are undocumented, have overstayed their visas,
or are in violation of an immigration law that might not have existed at the time of their
original entry.
63. Increasing workplace and household raids by ICE agents have terrorized immigrant
communities. Besides their frequent disregard of due process, these raids have left an indelible mark by forcibly separating many families.
64. In practically every state in the country, ICE raids have separated children from their parents. Testimonies from children and parents, as well as from social service providers, faith leaders, and elected officials, speak of the widespread social devastation caused by ICE raids.
65. The Special Rapporteur is particularly concerned about the stepped up strategy of arresting deportable immigrants through early morning actions at their homes. In many cases, ICE enters a home with a warrant to arrest one or several immigrants and then proceeds to sweep the entire building, knocking on other doors and demanding to see immigration papers from all the inhabitants. In one case three young boys, aged three, four and seven were awakened at six in the morning to find that their parents were being taken away by immigration officers. ICE carries out these raids in a forceful fashion and uses them not only as an enforcement mechanism but to deter others from being in the United States. These raids are carried out as coordinated efforts with a massive law enforcement presence and have considerable impact on affected families and communities.
66. The Special Rapporteur heard accounts from victims that ICE officials entered their homes without a warrant, denied them access to lawyers or a phone to call family members and coerced them to sign “voluntary departure “agreements.
67. Many who are subject to these raids and subsequent mandatory detention are long-time
permanent residents who know far more about the country from which they are facing removal
-the United States – than the country to which they may be removed. Although lawful permanent status is not terminated with detention, but only when a final order of removal is entered against an individual, lawful residents can be detained until there is a final resolution in their case.
Note to Section II.D
(Note 10) Immigration and Nationality Act, section 287 (g).
II.E. Mandatory detention
68. Detention impairs an individual’s ability to obtain counsel and present cases in removal proceedings. In 2005, 65 per cent of immigrants appeared at their deportation hearings without benefit of legal counsel. Despite the adversarial and legally complex nature of removal proceedings and the severe consequences at stake, detainees are not afforded appointed counsel.
69. Moreover, detention impacts an individual’s ability to earn income, thereby also impeding the ability to retain counsel. To make matters worse, the Department of Homeland Security often transfers detainees hundreds or thousands of miles away from their home cities without any notice to their attorneys or family members, which violates the agency’s own administrative regulations on detention and transfer of detainees. Non-citizens are often detained in particularly remote locations. Many private attorneys are put off from taking cases where clients are detained in such locations. Onerous distances, inflexible visitation schedules and advance notice scheduling requirements by facilities are all obstacles that impede the ability of detainees to secure and retain legal assistance.
70. Detention severely impairs the right of a respondent in removal proceedings to present evidence in her or his own defence. Extensive documentation is often required, including family ties, employment history, property or business ties, rehabilitation or good moral character. Obtaining admissible supporting documents from family members, administrative agencies, schools and hospitals, can be burdensome for anyone, but often practically impossible for detainees. Access to mail and property is often limited and can also create significant obstacles for detainees.
71. Faced with the prospect of mandatory and prolonged detention, detainees often abandon claims to legal relief from removal, contrary to international standards that require non-citizens to be able to submit reasons against their deportation to the competent authorities. Mandatory detention operates as a coercive mechanism, pressuring those detained to abandon meritorious claims for relief in order to avoid continued or prolonged detention and the onerous conditions and consequences it imposes.
72. United States immigration law allows for detention of migrants that is often neither brief nor determinate, and adjudication of defences against removal can be complicated and lengthy. An appeal to the Board of Immigration Appeals by either party extends the period of mandatory detention for many additional months. A petition for review to the Court of Appeals also extends mandatory detention, often for a period of years. A non-citizen is subject to mandatory detention even after being granted relief by the immigration judge, simply upon the filing of a notice of intent to appeal by Government counsel. In fact, it is often the most meritorious cases that take the longest to adjudicate, and in which migrants spend the longest amount of time in detention. Often the cases subject to continuing appeals are cases where individuals may have the strongest ties to the United States and risk the seve
rest consequences if removed.
73. Mandatory detention also extends to United States citizens who have not yet officially
proven their citizenship status or whose status is pending approval. That is because, for those who are not born in the United States, proving citizenship can be a legally and factually intensive process, requiring documentation of their own and their family’s history over many years. United States citizenship may be acquired or may exist in derivative form and therefore legally complex determinations must be made in order for citizenship to be established. Mandatory detention policies often prevent a citizen’s ability to gather proof of citizenship at all, or in an expedited manner. Even in cases where individuals were born in the United States, verification of citizenship can be burdensome and take months or more, and individuals may remain detained in the process.
74. In addition to the devastating effect that mandatory detention has on detained individuals, the policy has an overwhelmingly negative impact on the families of detainees, many of whom are citizens of the United States.
75. Those who will eventually be removed are prevented from resolving their affairs and
making preparations with their families for departure, to the detriment of the wider community.
76. Mandatory detention and mandatory deportation prevent migrants from fulfilling
responsibilities they have to family members, to employers, and to the wider communities that may rely on them for various reasons. Children can suffer trauma and severe loss from the sudden, prolonged, and sometimes permanent absence of that parent. The absence of a family member can result in irreparable economic and other injury to an entire family structure. Additionally, health conditions and medical situations specific to certain families are not considered when individuals are subjected to mandatory detention.
77. Mandatory detention and deportation policy, therefore, has significant effects on
United States citizens and the children of permanent residents, and other family members.
Families consistently bear many of the psychological, geographic, economic, and emotional
costs of detention and deportation.
78. Immigration laws are known for being particularly complex. It may take a non-citizen
subject to mandatory detention months and sometimes years to ultimately prove that he or she was not deportable.
79. In one case a lawful permanent resident of the United States was detained for
approximately three and a half years, subject to mandatory detention, for offences that the Court of Appeals for the Ninth Circuit ultimately found not to constitute deportable offences. Three and a half years after being placed in the custody of the Department of Homeland Security and charged as having been convicted of an aggravated felony, this person was released by the Department, as it was clear that nothing in his case made him removable and that removal proceedings would therefore be terminated.
80. The Security Through Regularized Immigration and a Vibrant Economy Act of 2007 (the
STRIVE Act),(see note 11 below) introduced by Congress on 22 March 2007, is an example of recently proposed legislation that would further expand mandatory detention and indefinite immigration detention, and was an attempt to create comprehensive immigration reform through policy. It required that the Department of Homeland Security significantly increase the number of facilities for the detention of non-citizens, adding a minimum of 20 detention facilities with the capacity to detain an additional 20,000 non-citizens.
81. The STRIVE Act would have essentially overruled the limitations on indefinite detention outlined by the United States Supreme Court in Zadvydas v. Davis (see note 12 below) by specifically authorizing the Department of Homeland Security to indefinitely detain certain non-citizens who have been ordered removed, even when their removal is not reasonably foreseeable. The STRIVE Act would also have increased the number of people subject to mandatory detention by further expanding the kinds of crimes that constitute an aggravated felony and providing the basis for such detention. During the Special Rapporteur’s mission to the United States the bill died in the Congressional Subcommittee on 5 May 2007 as it did not come to a vote.
82. Despite efforts by activists, community members, lawyers, and other advocates to repair the significant damage resulting from the legislation introduced in 1996, the legislation and its effects have not been reversed nor mitigated. Moreover, at both state and federal levels, the anti-immigrant climate has resulted in legislation that leads to increased mandatory detention of non-citizens even before they are in Department of Homeland Security custody.
83. For example, in November 2006, Arizona voters approved Proposition 100, which became
effective on 7 December 2006 upon its codification in Arizona Revised Statutes §13-3961. That section now provides that a person who is in criminal custody shall be denied bail “if the proof is evident or presumption great” that the person is guilty of a serious felony offence and the person “has entered or remained in the United States illegally”. In addition to the serious due process and equal protection issues this provision raises, by mandating different treatment for non-citizens and citizens in criminal proceedings and requiring state officials with little understanding of the complexity of immigration laws to enforce those laws, it also virtually ensures the eventual transfer of these individuals to Department of Homeland Security custody (even if they are never convicted), further increasing the number of people potentially subject to mandatory, prolonged, and indefinite detention.
84. Immigrants indefinitely detained are left uncertain of their status, their rights and their futures. Indefinite detention subjects the families of detained immigrants to the agony of not knowing when their loved one will be released or removed. It exacerbates existing mental health problems and retraumatizes individuals who have been subjected to torture or other forms of persecution in their home countries.
85. A March 2007 Department of Homeland Security’s Office of Inspector General (OIG)
report revealed that ICE is non-compliant with regulations governing the review of post-order cases following the two Supreme Court rulings on indefinite detention.
86. The OIG study further found that ICE failed to provide detainees with prior notice of custody reviews, information about how they can cooperate in removal efforts or decisions that clearly explain why supervised release has been denied. OIG attributed many of these failures to inadequate staffing both at local ICE field offices and headquarters, leading to insufficient oversight of local custody decisions.
87. Without the ability to comply uniformly with the current regulations there can be no reasonable expectation that ICE has the capacity to handle its large caseload resulting in part from the efforts of the Department of Homeland Security to secure the border.
Notes to Section II.E
(Note 11) H.R. 1645.
(Note 12) See paragraph 40 above.
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