June 14, 2011

I. Summary

The transfers are devastating, absolutely devastating. [Detainees] are loaded onto a plane in the middle of the night. They have no idea where they are, no idea what [US] state they are in.
—Rebecca Schreve, immigration attorney, El Paso, Texas, January 29, 2009

Every year, US Immigration and Customs Enforcement (ICE) detains hundreds of thousands of immigrants, including legal permanent residents, refugees, and undocumented persons, while their asylum or deportation cases move through the immigration courts. Detainees can be held for anywhere from a few weeks to a few years while their cases proceed. With close to 400,000 immigrants in detention each year, space in detention centers, especially near cities where immigrants live, has not kept pace. In addition, ICE has built a detention system, relying on subcontracts with state jails and prisons, which cannot operate without shuffling detainees among hundreds of facilities located throughout the United States.  

As a result, most detainees will be loaded at some point during their detention onto a government-contracted car, bus, or airplane and transferred from one detention center to another: 52 percent of detainees experienced at least one such transfer in 2009. And numbers are growing: between 2004 and 2009, the number of transfers tripled. In total, some 2 million detainee transfers occurred between 1998 and 2010.

This report updates Human Rights Watch’s 2009 report, Locked Up Far Away, with recent data analysis that tracks the beginning and ending points of each immigrant’s detention odyssey from 1998-2010. It shows that over 46 percent of transferred detainees were moved at least two times, with 3,400 people transferred 10 times or more. One egregious case involved a detainee who was transferred 66 times. On average, each transferred detainee traveled 370 miles, and one frequent transfer route (between Pennsylvania and Texas) covered 1,642 miles. Such long-distance and repetitive transfers have dire consequences for immigrants’ rights to fair immigration proceedings. They can render attorney-client relationships unworkable, separate immigrants from the evidence they need to present in court, and make family visits so costly that they rarely—if ever—occur.

Few Americans or their elected representatives grasp the full scope of immigration detention in the US. Even fewer are aware of the chaos that ensues when immigrant detainees are moved around, sometimes repeatedly, between distant detention centers at great cost to themselves, their families, and US taxpayers.

Human Rights Watch estimates that the transportation costs alone for the 2 million transfers that occurred in the 12 years covered by this report amounted to US$366 million. However, transferred detainees spend on average more than three times longer in detention than immigrants who are not transferred, suggesting that the most significant financial costs may come from court delays and unnecessarily long periods of detention.

Detainee transfers, a seemingly mundane aspect of the widespread detention of immigrants in the US, happen so regularly and across such large distances they raise serious human rights concerns that intensify as transfers become more common and happen repeatedly to the same person. Indeed, several important rights are being lost in the shuffle, including:

  • The right to access an attorney at no cost to the government : Under US and international human rights law, detained immigrants have the right to have an attorney of their choice represent them in deportation hearings, at no cost to the US government. Immigrants have a much better chance of finding a low-cost attorney when they stay close to their communities of origin. Once transferred, many volunteer or pro bono attorneys must withdraw from a case because representation across such large distances becomes impossible. In addition, many detainees cannot find an attorney prior to transfer. Their chances of securing representation are often worse in their new locations: the largest numbers of interstate transfers go to Louisiana, Mississippi, and Texas, states that collectively have the worst ratio of transferred immigrant detainees to immigration attorneys in the country (510 to 1).
  • Curtailing the ability of detainees to defend their rights : Under US and international human rights law, detained immigrants have the right to present evidence in their defense. But when they are transferred, immigrants are often so far away from their evidence and witnesses that their ability to defend themselves in deportation proceedings is severely curtailed. One transfer is enough to wreak havoc on a detainee’s ability to defend his rights in court.
  • Undermining the fairness with which detainees are treated: Fairness is at stake when detainees are transferred from one jurisdiction with laws that are more protective of their rights, to another where the laws are more hostile. The Federal Court of Appeals for the Fifth Circuit (covering Louisiana, Mississippi, and Texas) has jurisdiction over the largest number of detainees (about 175,000) transferred between states. These transfers are of particular concern because that court is widely known for decisions that are hostile to non-citizens.
  • Impeding detainees’ ability to challenge detention: International human rights and US law require that persons deprived of their liberty should be able to challenge the lawfulness of their detentions. Transfers often occur before a detainee has had a bond hearing, where a court determines whether detention is necessary in a particular case. One of the primary methods by which a detainee can show he should be released from detention is presenting evidence of family relationships and community ties that will not make him a risk of flight from court. But after transfer detainees are often so far away from such witnesses that they cannot convince the court of their intentions to cooperate with immigration authorities and appear for their hearings. Transferred detainees spend on average three times longer in detention than those who are never transferred, and they are less likely to prevail in their bond hearings.

ICE’s current internal policy on transfers, called the Performance Based National Detention Standards (PBNDS), states that “the determining factor in deciding whether or not to transfer a detainee is whether the transfer is required for [ICE’s] operational needs.” [1] According to ICE, any limits on its power to transfer detainees would curtail its ability to make the best and most cost-effective use of the detention beds it can access nationwide.

Even so, starting in October 2009, ICE has announced several reforms intended to alleviate some causes and manifestations of immigrant detainee transfers, including moving towards a more “civil” detention system that decreases reliance on subcontracting with state jails and prisons, locating facilities in regions where they are needed, and reducing transfers.[2]

In a time of fiscal challenges, the efficiency concerns expressed by ICE are important but should not come at the expense of basic human rights. This is especially true for detainees with attorneys to consult, defenses to mount in their deportation or asylum hearings, and witnesses and evidence to present at trial. Some detainees may not have such issues at stake. But for those who do, the US government and its immigration enforcement agency must act with restraint.

Moreover, with the exception of ICE’s plans to expand bed space in a criminal jail and residential facility in New Jersey, such reforms have yet to be implemented. Nor have they curbed the rising tide of detainee transfers. Even the New Jersey plans rely heavily on an existing state criminal jail and criminal residential facilities, which has long been associated with increased transfers: as the state’s need to house criminal inmates ebbs and flows, immigrant detainees are shuffled around accordingly. In fact, data in this report show that most (57 percent) detainee transfers occur to and from such subcontracted state jails and prisons. Such jails and prisons are not under the direct management of ICE, which means that the agency has less control over the conditions in which immigrants are held, and less ability to resist when a state jail warden asks that detainees be transferred out.[3]

Despite its stated intention to alter its reliance upon detainee transfers, ICE has also so far rejected recommendations to place regulatory or legislative constraints on its transfer power.

Some transfers are inevitable: any governmental authority that holds people in custody, particularly one responsible for detaining hundreds of thousands of people in hundreds of institutions, will sometimes need to transport detainees between facilities. For example, inmate transfers are relatively common, even required, in state and federal prisons to minimize overcrowding, respond to medical needs, or properly house inmates according to their security classifications.

However, transfers in state and federal prisons are much better regulated and rights-protective than transfers in the civil immigration detention system, where there are few, if any, checks on the decisions of officials to move detainees. The different ways in which the US criminal justice and immigration systems treat transfers is doubly troubling because immigration detainees, unlike prisoners, are technically not being punished.

In addition, while any plan to reduce transfers will undoubtedly require better allocation of detention space near the locations where immigrants are apprehended, there are also good reasons to use alternatives to detention and avoid curtailing liberty whenever possible. Reducing detainee transfers is not justification for increasing overall numbers of detainees.

As an agency charged with enforcing the laws of the United States, ICE should not operate a system of detention that is completely dependent upon widespread, multiple, and long-distance transfers: in other words, it should not rely on a system of detention that violates detainees’ rights. If ICE worked to emulate the best practices on inmate transfers set by state and federal prison systems, it would reduce the chaos and limit harmful rights abuses.

Transfers do not need to stop entirely in order for ICE to uphold US and human rights law: they merely need to be curtailed through the establishment of enforceable guidelines, regulations, and reasonable legislative restraints imposed by the US Congress. In a time of budget constraints, if state and local prisons can handle inmate transfers without putting basic rights to fair treatment at risk, the federal government ought to be able to do the same.

 

[1]US Immigration and Customs Enforcement, “Operations Manual ICE Performance Based National Detention Standards,” part 7, chapter 41, December 2, 2008, http://www.ice.gov/detention-standards/2008 (accessed May 11, 2011), p. 2.

[2]For example, ICE circulated information at the Northeast Detention Briefing, Stakeholders Meeting, indicating objectives to “consolidat[e] and realign detention resources to keep detainees closer to families and legal resources,” to “reduce or eliminate the transfer of detainees from one geographic area to another due to the lack of detention resources,” and proposed a plan to increase bedspace in Essex County, New Jersey. US Immigration and Customs Enforcement, Northeast Detention Briefing, Stakeholders Meeting, December 20, 2010 (on file with Human Rights Watch).

[3]For a more detailed discussion of the way that subcontracting detention space can increase transfers, see Human Rights Watch, Locked Up Far Away: The Transfer of Immigrants to Remote Detention Centers in the US, December 2, 2009, http://www.hrw.org/en/reports/2009/12/02/locked-far-away-0, p. 21