Category: Uncategorized

By Greg Moses

CounterPunch

While the power of new voting technology was attracting a nationwide convergence of suspicion in the vote count reported for Ohio’s Cuyahoga County, the very same software system used to manage voter rolls there was being put to troubling new uses in Harris County, Texas where hardly a word was uttered in reply.

Yet the power of software to politically manage votes and voters is not simply the power to produce vote totals, it also lies in the power of information technology to “discipline and punish” voting populations with increasing speed and efficiency.

In the case of Harris County, a small legislative district with unique political geography became a testing ground for the power of software to criminalize and discredit voters in the aftermath of a surprising vote count. Although a rare legislative contest failed to reverse a 33-vote defeat of a powerful Republican incumbent, the process of the contest did reduce the margin of victory for the Democrat. And the tactic of using new software to identify and pursue individual voters was added to the Republican playbook as yawning observers nodded.

Thanks to the recent addition of VOTEC Election Management And Compliance System or VEMACS (the same software package used in Cuyahoga County and ten other states) the Voter Registrar of Harris County was able to deliver with unprecedented speed and precision a list of 167 suspected illegal voters shortly after Republican attorneys charged that Democratic voters had illegally stolen the election.

The production and distribution of the Registrar’s fat report was widely viewed as a normal and helpful thing to do in sorting out the facts of the election contest. However, according to documents supplied to the Texas Civil Rights Review, the Registrar’s usual investigation of voter activity in major elections takes several months to complete, and does not target specific election contests. In the case of Houston’s HD 149, it is still not clear that anything motivated the special report apart from Republican allegations that the election had been stolen by illegal Democratic voters. Media-fed allegations of voter misconduct created an environment in which a historically unique report appeared as a normal and timely contribution.

In the end, hyped-up Republican charges against Democratic voters were not supported by the evidence. But the report produced by the Registrar’s election software did enable an unprecedented invasion of voter privacy. Within a month following the release of the Registrar’s report, about 150 voters had been served with subpoenas that demanded them to reveal their votes in the election contest. And about 110 voters eventually saw their votes deducted from the race. Was the interrogation of Houston voters in January the largest voter sweep in history? We hope so. Because the Harris County precedent warns us that where powerful software is available, there will be more voter sweeps to come.

And despite the outcome, the contest for House District 149 was conducted under circumstances favorable to an election reversal. As one official explained, the district is bounded on the Southwest side by a diagonal line that represents the longest county-line boundary given to any legislative district in the state. With election laws that draw hard lines against voters who cross county lines, the likelihood of out-of-county fouls was favorable from the start.

The Texas Civil Rights Review conducted a Mapquest review of addresses reported by 19 voters who were flagged by the Registrar in one borderline precinct. Seven of the voters continued to live within a mile of their old precinct. And for one of those voters, the Mapquest star that marks the voter’s home touched the county line. On a TerraServer satellite image also, the red dot marking the voter’s address virtually hugged the imaginary county line that cut diagonally through the neighborhood. Although the voter was subpoenaed and ordered to reveal his vote in the race, the Master of Discovery for the legislative contest Rep. Will Hartnett (R-Dallas) was unable to determine a clear answer as to how he voted.

A phone call to that voter remains unreturned. As I left a message with his spouse, she explained it was a busy night at home, and I could hear the sounds of happy children in the background. As with the homes of two other voters that I have contacted by telephone, I came away with the impression that voters do not want to extend their experiences of the election contest any further. Like any trauma of life, they prefer to move on. And the circumstances make it difficult for me to feel any pushier about getting their quotes. For this reason, I worry about the long term effects that these contests may have on voters who seem dispirited enough already.

There has been virtually no journalistic interest in reporting the experiences of approximately 150 voters who were served and deposed in the Republican-led contest (unless you count the Norwegian citizen who on his voter application listed his previous residence as Oslo, checked “not a citizen” and was given a voter card anyway for his George Bush Park precinct. His case was reported as a kind of absurd comedy, and his Republican vote was subtracted.)

But what about the two young women who were citizens but who neglected to find and check the citizenship box on applications that were laid out quite differently than the one filled out by our Norwegian resident above. The citizenship box on applications given the two women was separated from the field for all other information and placed into a section that appeared above and to the right. Although the two voters eventually submitted the proper checkmarks and voted on election day, their online registrations were revised during the month of January. Following merciless post-election review of their registration histories by Republican attorneys, the two women were disqualified for the crime of completing their registrations too late, and their Democratic votes were subtracted as illegal.

As voter activists from the Ohio campaign are calling for open-source codes and paper trails to help check the power of vote counting software, there should also be a response to the newfound power of post-election review. With the increasing ability of technology to monitor where voters actually reside, the antidote for post-election harassment would appear to lie in pre-election flexibility. Let voters register later, electronically, and with instant printouts that confirm completed applications. If a checkbox is crucial to registration, voters could be prompted to complete their forms in real time.

Furthermore, why not allow voters to access their proper ballots from any polling place? Why in this world of broadband interactivity should voters be told to drive around, when ballots can be delivered to them by keystroke? Rather than drift yawning into a future of technology built by and for the few, democrats can demand from Voter Registrars the kind of lightning quick responsiveness that enables, encourages, and motivates voters. In a world of digital power, Voter Registrars should feel pressure to make tools that work for voters, not against them, before during and after election day.

Notes: Phrase “discipline and punish” coined by Michel Foucault in his 1975 book on the birth of prisons. “Management and Compliance” are trademarked terms of VOTEC.

Story first posted as top message on the morning of March 11, and revised throughout the day.

Excerpt from March 7, 2008 report of UN Special Rapporteur on the Rights of Migrants.

IV. CONCLUSIONS

104. Contrary to popular belief, United States immigration policy did not become more severe after the terrorist attacks on September 11. Drastic changes made in 1996 have been at work for more than a decade, affecting communities across the nation and recent policy changes simply exacerbate what was put in motion then. Also, contrary to popular belief, these policies do not target only undocumented migrants – they apply to citizens born in the United States of undocumented parents and long-term lawful permanent residents (or green card holders) as well.

105. Not only have immigration laws become more punitive – increasing the types of crimes that can permanently sever a migrant’s ties to the United States – but there are fewer ways for migrants to appeal for leniency. Hearings that used to happen in which a judge would consider a migrant’s ties to the United States, particularly their family relationships, were stopped in 1996. There are no exceptions available, no matter how long an individual has lived in the United States and no matter how much his spouse and children depend on him for their livelihood and emotional support.

106. Throughout the history of the United States, many different kinds of non-citizens have been made subject to mandatory detention. People with lawful permanent resident status (or green card holders), including those who have lived lawfully in the United States for decades, are subject to deportation. So are other legal immigrants – refugees, students, business people, and those who have permission to remain because their country of nationality is in the midst of war or a humanitarian disaster. Undocumented non-citizens are also subject to mandatory detention and deportation regardless of whether they have committed a crime.

107. A primary principle of United States immigration law is that United States citizens can never be denied entry into the country; neither can they ever be forcibly deported from the United States. By contrast, non-citizens, even those who have lived in the country legally for decades, are always vulnerable to mandatory detention and deportation.

108. In the wake of Hurricane Katrina, migrant workers from across the United States travelled to New Orleans. Ultimately, the voices of workers in post-Katrina New Orleans demonstrate that the actions and inactions of federal, state, and local governments and the actions of the private reconstruction industry have created deplorable working and living conditions for people striving to rebuild and return to the city. Because these workers are migrant, undocumented, and displaced they have little chance to hold officials and private industry accountable (e.g., many cannot vote, and displaced workers in New Orleans continue to experience barriers to voting) except through organized, collective action.

V. RECOMMENDATIONS

109. The Special Rapporteur would like to make the following recommendations to the
Government.

On general detention matters

110. Mandatory detention should be eliminated; the Department of Homeland Security
should be required to make individualized determinations of whether or not a non-citizen
presents a danger to society or a flight risk sufficient to justify their detention.

111. The Department of Homeland Security must comply with the Supreme Court’s
decision in Zadvydas v. Davis and Clark v. Martinez. Individuals who cannot be returned to
their home countries within the foreseeable future should be released as soon as that determination is made, and certainly no longer than six months after the issuance of a final order. Upon release, such individuals should be released with employment authorization, so that they can immediately obtain employment.

112. The overuse of immigration detention in the United States violates the spirit of
international laws and conventions and, in many cases, also violates the actual letter of
those instruments. The availability of effective alternatives renders the increasing reliance on detention as an immigration enforcement mechanism unnecessary. Through these
alternative programmes, there are many less restrictive forms of detention and many
alternatives to detention that would serve the country’s protection and enforcement needs
more economically, while still complying with international human rights law and ensuring
just and humane treatment of migrants.

Create detention standards and guidelines

113. At the eighty-seventh session of the Human Rights Committee in July 2006, the
United States Government cited the issuance of the National Detention Standards in 2000
as evidence of compliance with international principles on the treatment of immigration
detainees (see note 13 below). While this is indeed a positive step, it is not sufficient. The United States Government should create legally binding human rights standards governing the treatment of immigration detainees in all facilities, regardless of whether they are operated by the federal Government, private companies, or county agencies.

114. Immigration detainees in the custody of the Department of Homeland Security and
placed in removal proceedings, should have the right to appointed counsel. The right to
counsel is a due process right that is fundamental to ensuring fairness and justice in
proceedings. To ensure compliance with domestic and international law, court-appointed
counsel should be available to detained immigrants.

115. Given that the difficulties in representing detained non-citizens are exacerbated when these individuals are held in remote and/or rural locations, U.S. Immigration and Customs Enforcement (ICE) should ensure that the facilities where non-citizens in removal
proceedings are held, are located within easy reach of the detainees’ counsel or near urban
areas where the detainee will have access to legal service providers and pro bono counsel.

Deportation issues impacting due process and important human rights

116. United States immigration laws should be amended to ensure that all non-citizens
have access to a hearing before an impartial adjudicator, who will weigh the non-citizen’s
interest in remaining in the United States (including their rights to found a family and to a private life) against the Government’s interest in deporting him or her.

Detention/deportation issues impacting unaccompanied children

117. The Government should urge lawmakers to pass the Unaccompanied Alien Child
Protection Act of 2007 reintroduced in March 2007.

118. Children should be removed from jail-like detention centres and placed in home-like
facilities. Due care should be given to rights delineated for children in custody in the
American Bar Association “Standards for the Custody, Placement, and Care; Legal
Representation; and Adjudication of Unaccompanied Alien Children in the
United States” (see note 14 below).

119. Temporary Protected Status (TPS) should be amended for unaccompanied children
whose parents have TPS, so they can derive status through their parents.

Situation of migrant women detained in the United States

120. In collaboration with legal service providers and non-governmental organizations
that work with detained migrant women, ICE should develop gender-specific detention
standards that address the medical and mental health concerns of migrant women who
have survived mental, physical, emotional or sexual violence.

121. Whenever possible, migrant women who are suffering the effects of persecution or
abuse, or who are pregnant or nursing infants, should not be detained. If these vulnerable
women cannot be released from ICE custody, the Department of Homeland Security
should develop alternative progra
mmes such as intense supervision or electronic
monitoring, typically via ankle bracelets. These alternatives have proven effective during
pilot programmes. They are not only more humane for migrants who are particularly
vulnerable in the detention setting or who have family members who require their
presence, but they also cost, on average, less than half the price of detention.

Judicial review

122. The United States should ensure that the decision to detain a non-citizen is promptly assessed by an independent court.

123. The Department of Homeland Security and the Department of Justice should work
together to ensure that immigration detainees are given the chance to have their custody
reviewed in a hearing before an immigration judge. Both departments should revise
regulations to make clear that asylum-seekers can request these custody determinations
from immigration judges.

124. Congress should enact legislation to ensure that immigration judges are independent
of the Department of Justice, and instead part of a truly independent court system.

125. Families with children should not be held in prison-like facilities. All efforts should be made to release families with children from detention and place them in alternative accommodation suitable for families with children.

On migrant workers

126. The Government should ensure that state and federal labour policies are monitored,
and their impact on migrant workers analysed. Policymakers and the public should be
continually educated on the human needs and human rights of workers, including migrant
workers. In this context, the Special Rapporteur strongly recommends that the
United States consider ratifying the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

127. A human services infrastructure should be built in disaster-affected communities to
comprehensively meet the needs of workers facing substandard housing and homelessness,
wage theft, unsafe working conditions and health issues.

128. Effective oversight of the enforcement of applicable labour laws by state and federal agencies should be ensured.

129. Existing health and safety laws should be assiduously enforced in order to curb
exploitative hiring and employment practices by contractors.

130. Improved health and safety conditions should be ensured in places that are known to
employ migrant workers, compensation for workers and health care for injured migrant
workers should be provided, and the significant incidences of wage theft combated.

131. Local law enforcement and federal immigration authorities must cease harassing and racially profiling migrant workers. Law enforcement should instead focus on helping to
promote the rights of workers, including the rights of migrant workers.

Notes to Recommendations

(Note 13) CCPR/C/USA/3, paras. 190-192.

(Note 14) Available here.

Excerpt from March 7, 2008 report of UN Special Rapporteur on the Rights of Migrants.

III. THE PLIGHT OF MIGRANT WORKERS: THE CASE OF HURRICANE KATRINA

A. Background

88. In the aftermath of Hurricane Katrina, which devastated New Orleans and other areas of the United States Gulf Coast in 2005, several hundred thousand workers, mostly African Americans, lost their jobs and their homes, and many became internally displaced persons (IDPs). Since the storm, these IDPs have faced tremendous structural barriers to returning home and to finding the employment necessary to rebuild their lives. Without housing, they cannot work; without work, they cannot afford housing. Since Hurricane Katrina, tens of thousands of migrant workers, most of them undocumented, have arrived in the Gulf Coast region to work in the reconstruction zones. They have made up much of the labour to rebuild the area, to keep businesses running and to boost tax revenue. To support their families, migrant workers often work longer hours for less pay than other labourers. For some migrant workers, wages continue to decrease. Jobs are becoming scarcer because the most urgent work, gutting homes and removing debris, is mostly finished.

89. These migrant workers, like their original local counterparts, are finding barriers to safe employment, fair pay, and affordable housing, and in some cases, experience discrimination and exploitation amounting to inhuman and degrading treatment. In fact, many workers are homeless or living in crowded, unsafe and unsanitary conditions, harassed and intimidated by law enforcement, landlords and employers alike.

90. Migrant workers on the Gulf Coast are experiencing an unprecedented level of
exploitation. They often live and work amid substandard conditions, homelessness, poverty,
environmental toxicity, and the constant threat of police and immigration raids, without any guarantee of a fair day’s pay. They also face structural barriers that make it impossible to hold public or private institutions accountable for their mistreatment; most have no political voice.

91. The dramatically increased presence of migrant workers in the region has fuelled local tensions over language barriers, education and health-care needs in a public services system strained by Katrina. The low-wage workers rebuilding New Orleans and the Mississippi Gulf Coast are almost entirely people of African, Asian and Hispanic and/or indigenous descent, many of whom are recent migrants from Latin America and Asia and many of whom are not proficient in English. African American residents are often pitted against migrant workers new to the area, with racial and ethnic tensions between marginalized minority groups in the region escalating. Moreover, as some internally displaced persons return to the region, concern is rising that migrant labourers have diminished job prospects for pre-Katrina residents. Day labourers shared stories with the Special Rapporteur about how they are paid less than promised, or not at all. They note that they are trying to rebuild a city that welcomed them when the most dangerous work needed to be done; only to rebuff them as the pace of rebuilding diminishes.

92. The stories of workers across the New Orleans metro area and the Gulf Coast after Katrina are not simply tales of personal plight. They are also stories about institutional responsibility. In the days following the hurricane, certain agencies of the federal Government came under fierce criticism for being slow to act. Yet, in actuality, other parts of the federal Government sprang into action quite quickly with a range of policy initiatives that were breathtaking in their scope and impact on workers.

93. The treatment of workers in New Orleans constitutes a national human rights crisis.
Because these workers are typically migrant, displaced, undocumented, or have temporary work authorization, they have little chance to hold officials and private industry accountable (e.g., many cannot vote, while displaced New Orleanais continue to experience barriers to voting). New Orleans is being rebuilt on the backs of underpaid and unpaid workers perpetuating cycles of poverty that existed pre-Katrina. Hurricane Katrina helped create a situation where there is no Government or private accountability for the creation and maintenance of these inequities. Internally displaced voters have no voice back home, and reconstruction workers are either non-residents or non-citizens. As a result, contractors have free reign to exploit workers, and the Government has felt little pressure to ensure that migrant workers are protected and able to access what is needed to meet basic human needs.

94. As noted above, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families establish workers’ rights to (a) a safe and healthful workplace, (b) compensation for workplace injuries and illnesses, (c) freedom of association and the right to form trade uni*ns and bargain collectively, and (d) equality of conditions and rights for immigrant workers.

95. Immigrant workers, including those who migrated to work in the regions affected by
Katrina, often experience violations of these rights. Lack of familiarity with United States law and language difficulties often prevent them from being aware of their rights as well as specific hazards in their work. Immigrant workers who are undocumented, as many are, risk deportation if they seek to organize to improve conditions. Fear of drawing attention to their immigration status also prevents them from seeking protection from Government authorities for their rights as workers. In 2002, the Supreme Court stripped undocumented workers of any remedies if they are illegally fired for uni*n organizing activity. Under international law, however, undocumented workers are entitled to the same labour rights, including wages owed, protection from discrimination, protection for health and safety on the job and back pay, as are citizens and those working lawfully in a country.

96. Furthermore, pre- and post-Katrina policies and practices of local, state and federal government agencies have had a grossly disproportionate impact on migrants of colour, in violation of the United States Government’s obligations under the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and other human rights norms that the United States has ratified.

B. Institutional responsibility

97. Personal stories recounted to the Special Rapporteur illuminate the commonality of the struggles faced by migrant workers but also the institutional responsibility, and how both policies and practices perpetuate structural and institutional racism and xenophobia. Across the city of New Orleans, workers – both returning internally displaced persons and new migrant workers – list calamities that have become routine: homelessness, wage theft, toxic working conditions, joblessness, police brutality, and layers of bureaucracy. These shared experiences with structural racism unite low-wage workers across racial, ethnic, and industry lines. Thousands of workers now live in the same conditions: they sleep in the homes they are gutting or in abandoned cars that survivors were forced to leave behind; they are packed in motels, sometimes 10 to a room; and they live on the streets. Most migrant workers were promised housing by their employers but quickly found upon arrival that no housing accommodation had been made available. Instead, they were left homeless.

98. By all accounts, state and local governments have turned a blind eye to this dismal housing situation. Although the city depends on migrant workers to act as a flexible, temporary workforce, it also made no arrangements to pro
vide them with temporary housing. As a result, the workers who are rebuilding New Orleans often have nowhere to sleep.

99. The federal Government has sent mixed messages. On the one hand, it relaxed the
immigration law requirements relating to hiring practices, thereby sending a message to
contractors that hiring undocumented workers was permissible if not condoned. On the other
hand, federal authorities failed to assure these workers and their family members that they would not be turned over to immigration authorities.

100. New migrant workers on the Gulf Coast have experienced a range of problems relating to wage theft which include:

• Non-payment of wages for work performed, including overtime
• Payment of wages with cheques that bounce due to insufficient funds
• Inability to identify the employer or contractor in order to pursue claims for unpaid
  wages
• Subcontractors – often migrants themselves – who want to but cannot pay wages because
  they have not been paid by the primary contractor (often a more financially stable white
  contractor)

101. These conditions are particularly salient for migrant workers, especially if they are undocumented as they are more easily exploitable. They may be hired for their hard manual labour and then robbed of their legally owed wages. The situation is exacerbated by the complexity of local employment structures. Because there are multiple tiers of subcontractors, often flowing from a handful of primary contractors with federal Government contracts, workers often do not know the identities of their employers. This is typical of the growing contingent of low-wage workers throughout the country. In New Orleans, workers explained that without knowing the identity of their employer, they cannot pursue wage claims against them.

102. Numerous workers have witnessed immigration raids by ICE and local law enforcement
across the city of New Orleans, at large hotels downtown, the bus station, hiring sites across the city, the Superdome, on work sites, in the parking lots of home improvement stores, and even inside homes that workers are gutting or rebuilding. Workers report frequent immigration raids; retaliatory calls to immigration authorities, or threats of such calls, by employers; and collaboration between local law enforcement agents and ICE to the benefit of employers.

103. The lack of labour and human rights enforcement in the Gulf Coast stands in stark contrast to the aggressive tactics employed by local police and ICE, who readily respond to tips from unscrupulous employers who report workers that voice employment-related grievances. As a result, ICE raids on day labourer and other work sites have increased substantially in the wake of Hurricane Katrina. Both ICE and the Department of Labor have expressed their commitment to developing a process whereby ICE will determine, before deporting any worker detained on the Gulf Coast, whether the worker has any unpaid wage claims. Although ICE and the Department are reportedly engaged in ongoing consultations on this subject, no agreement appears to be in place. Workers live in fear of these tactics every day and most cannot or will not complain for fear of more severe repercussions.

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.