Immigration detention is civil in nature, and should not be used as punishment. Deprivation of liberty is a serious matter, yet international and domestic legal standards have not adequately addressed the particular situation of asylum seekers and other immigrants in administrative detention. The United Nations Standard Minimum Rules for the Treatment of Prisoners and the Body of Principles for the Protection of all Persons under Any Form of Imprisonment elaborate non-binding but authoritative minimum standards for treatment of all individuals in detention. The minimum standards contained in these documents require, among other things: that administrative detainees be held separately from criminal detainees; that detainees are advised of all relevant rights, such as the right to receive information in languages they understand; that detainees are allowed adequate opportunities to communicate withand receive visits by legal counsel and family members; and that detainees are given a daily opportunity to see a medical doctor when ill. In the case of immigration detainees, the United States has largely ignored these basic international standards.
All persons in the United States possess basic human rights protections, regardless of their immigration status. Individuals in INS detention, whether asylum seekers, undocumented workers, or people who have served criminal sentences, have the right to be free from arbitrary detention and to be protected from cruel, inhuman or degrading treatment.62
International norms regarding the treatment of pre-trial detainees offer the best guidance on conditions for individuals in immigration detention. Like immigration detainees, pre-trial detainees are held to ensure their presence at trial, rather than for the purposes of punishment. Pre-trial detainees are presumed to be innocent, unless and until they are actually convicted of a crime.
International standards for pre-trial prisoners are embodied in several international documents, and they reflect, first, a basic concern that all detained individuals be held in decent and humane conditions, and, second, a concern that pre-trial detainees should not be treated punitively, since they must be considered innocent until proven otherwise. They should be held in the least restrictive setting possible and given the maximum freedom consistent with their remaining in detention.
The U.N. Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules) further clarify what constitutes "humane" conditions of detention. The Standard Minimum Rules are not legally binding on states but provide authoritative guidance in interpreting the principles laid out in documents such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The Standard Minimum Rules apply to all persons in detention, for whatever reason. Among other things, the rules note:
· different categories of prisoners shall be kept in separate institutions (or parts of institutions), taking account of their sex, age, criminal record, the legal reason for their detention and the necessities of their treatment;
· women should be held separately from men;
· handcuffs, chains, irons and straitjackets should never be used as punishment;
· prisoners should be allowed at least one hour of outdoor exercise daily;
· people detained for civil or administrative reasons should be kept separately from people imprisoned for a criminal offense.63
In 1988, the U.N. General Assembly adopted the Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment (Body of Principles). The relevant principles are too numerous to describe fully here, but most importantly, they state that detained individuals have the following basic rights:
· the right "not to be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority," the right "at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of their detention," and the right to do so through proceedings that are "simple and expeditious and at no cost for detained persons without adequate means;"
· the right to have the assistance of legal counsel, to receive reasonable help in obtaining counsel, and to have adequate time and facilities to communicate with legal counsel;
· the right to be given an explanation of all relevant rights, and the right to receive such information in a language the detainee understands and to have the assistance, free of charge if necessary, of an interpreter;
· the right to promptly notify family members of the place of detention, receive visits from family members and have an "adequate opportunity to communicate with the outside world;"
· the right to be informed of disciplinary rules prevailing in a given detention center, and to appeal any disciplinary action, and the right to make a request or complaint regarding treatment or detention conditions;
· the right to "treatment appropriate to their unconvicted status," for those who are awaiting trial or detained for non-criminal reasons.64
It is a also fundamental principle of human rights that no one should be arbitrarily placed in detention. The Universal Declaration of Human Rights states that "no one shall be subjected to arbitrary arrest, detention or exile," and the International Covenant on Civil and Political Rights declares similarly that "no one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law."65 Detention is considered "arbitrary" if it is not authorized by law or in accordance with law. It is also arbitrary when it is random, capricious, or not accompanied by fair procedures for legal review.
The International Covenant on Civil and Political Rights provides that "anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."66 This means that even if a person has been detained in accordance with a valid law, he or she is nonetheless entitled to a prompt and expeditious appeal procedure.
Arbitrary detention has also been defined as not only contrary to law but as including elements of inappropriateness, injustice and lack of predictability.67 Some immigration detainees cannot be deported because they are stateless,68 or because their own country or any third country will not accept them. Human Rights Watch believesthat when immigration detainees are held indefinitely and do not know when, if ever, they will be released, their detention becomes arbitrary even if the initial detention was carried out in accordance with the law.
The Special Situation of Asylum Seekers
International human rights standards recognize that some immigrants are in especially vulnerable circumstances and therefore should not be detained at all. In particular, international standards state clearly that those seeking asylum should generally not be detained.
The 1951 United Nations Convention Relating to the Status of Refugees (Refugee Convention) and the 1967 Protocol Relating to the Status of Refugees defines a "refugee" as a person who has fled his or her home country because of "a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion."69 The Refugee Convention goes on to state that even if refugees are in a given country unlawfully, "[c]ontracting states shall not apply to the movements of such refugees restrictions other than those which are necessary."70 The United Nations High Commissioner for Refugees' Guidelines on the Detention of Asylum Seekers (UNHCR Guidelines) clarifies this provision with regard to those who are seeking asylum by reaffirming the basic human right to seek and enjoy asylum and by stating as an explicit guideline that "[a]s a general rule, asylum seekers should not be detained."71
This general rule - that those seeking asylum should not be detained - arises out of the fundamental obligations all governments have to asylum seekers under international law. The most basic obligation of governments is to avoid forcing asylum seekers to return to their home country, if return would expose them to continued persecution. In international law, this is known as the principle of non-refoulement, which, translated from French, literally means "non-driving back." In practice, the principle of non-refoulement means that governments are obligated to develop fair procedures to determine whether a given immigrant is in need of protection and deserves asylum. They must permit asylum seekers to remain in the country to which they have fled, at least until such time as it is safe to return to their home country. The Universal Declaration of Human Rights articulates this principle clearly, stating that "everyone has the right to seek and enjoy in other countries asylum from persecution."72
The Refugee Convention also states explicitly that governments "shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened...enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence."73
This notion is expanded and clarified in the UNHCR Guidelines, which note that detention should not be used as a punitive or disciplinary measure, and that detention should not be used as a means of discouraging refugees from applying for asylum. Indeed, even if detention is not explicitly used to discourage asylum applicants but merely to discourage future immigration altogether, such a use of detention may violate the Refugee Convention. As international refugee law scholar Arthur Helton argues:
Detention for purposes of deterrence is a form of punishment, in that it deprives a person of their liberty for no other reasons than their having been forced into exile. It is a practice that is legally questionable under Articles 31 and 33 of the United Nations Convention and protocols Relating to the Status of Refugees, which prohibit the imposition of penalties and restrictions on movement as well as refoulement.74
Many refugees have faced torture, imprisonment, and death threats at home, and many have had family members murdered by abusive governments or rebel forces. The very notion of asylum rests on the idea that people should not suffer as a result of their membership in particular political, religious, racial, ethnic or national groups. After fleeing abusive governments at home, asylum seekers should not succeed in reaching what appears to be a safe haven, only to find that they are promptly detained in prison-like conditions - that often evoke the very conditions they fled - for extended periods.
Limited Circumstances in which Refugees May Be Detained
Although it is an accepted premise of international law that asylum seekers should not, in general, be detained, the Refugee Convention does permit states to detain asylum seekers in certain limited circumstances. Thus, "[i]n time of war or other grave and exceptional circumstances," states may take "provision[al] measures" to detain asylum seekers, "pending the determination that the person is in fact a refugee and that the continuance of such measures is necessary in the interests of national security."75
The UNHCR Guidelines on the Detention of Asylum Seekers further elaborate the instances in which asylum seekers may be detained:
(I) to verify identity;
(ii) to determine the elements on which the claim for refugee status or asylum is based;
(iii) in cases where refugees or asylum seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum; or
(iv) to protect national security or public order.76
According to the Guidelines, any other reason for detaining asylum seekers, such as part of a policy to deter future asylum seekers, is contrary to principles of international law. The guidelines emphasize that "detention [should] only be imposed where it is necessary and reasonable to do so and without discrimination. It should be proportional to the ends to be achieved and for a minimal period."77
The Guidelines also highlight the procedural rights of asylum seekers: the right to be informed of the reasons for their detention in a language and in terms they are able to understand; and the right to be heard promptly before an independent and impartial authority to challenge the lawfulness of their detention.78
At the time this report was written, the UNHCR Guidelines were in the process of being revised and strengthened. The revisions are a positive step by UNHCR and many of the proposed changes serve to better protect the rights of asylum seekers. For example, the revisions state that procedural safeguards should include free legal assistance to asylum seekers where possible and that regular periodic reviews of the need for continued detention should be undertaken whenever a decision to detain an asylum seeker is made. The revisions also create an additional section to the guidelines that underscores the importance of creating and utilizing alternatives to detention. The proposed section suggests different models of conditional release, such as monitoring requirements, open centers, and release on bail.
Human Rights Watch is concerned, however, that even the revised exceptions for allowing detention may still be too vague and poorly defined, and can thus be interpreted by states as justifying detention of many individuals seeking asylum. All decisions to detain asylum seekers must be allowed only as exceptional measures and only after alternatives to detention have been explored. Decisions to detain asylum seekers are valid only when a case-by-case review by an impartial adjudicator shows detention to be strictly necessary to determine whether the individual is asserting the basic elements of a claim for asylum.
Human Rights Watch also believes that the revised guidelines should explicitly state that jails and prisons, by definition, are not suitable places to detain individuals who are neither convicted nor accused of a criminal offense. Furthermore, all aspects of detention should be incorporated into a country's domestic law and should conform to international human rights standards.
Additional Rights of Asylum Seekers in Detention
All people in INS detention have the right to be detained non-arbitrarily and in conditions that are humane. If detained, asylum seekers have an additional degree of protection regarding conditions of detention under international law. If they are detained, the UNHCR Guidelines state that:
· detention conditions must not be punitive;
· detained asylum seekers should be able to regularly contact and receive visits from friends, relatives and attorneys;
· detainees should have access to medical treatment, and psychological counseling where appropriate, be able to engage in physical exercise and have access to educational activities;
· men and women, and children and adults, should be segregated from each other (but not from their relatives);
· certain vulnerable categories of refugees, such as pregnant women, nursing mothers, children, the aged, the sick, and handicapped should benefit from special measures which take into account their particular needs;79
· detainees should be allowed to exercise their religion and receive a diet in keeping with their religion.
The Executive Committee of UNHCR, which advises the High Commissioner for Refugees on acceptable practices regarding refugees, has also issued recommendations regarding the detention of refugees and asylum seekers. The recommendations explicitly state that detention must be humane and that whenever possible, asylum seekers should "not be accommodated with persons detained as common criminals, and shall not be located in areas where their physical safety is endangered."80
The preceding review of international standards - which apply to all people in custody, including detained immigrants and asylum seekers - illustrates that although there is a body of customary international law establishing minimum treatment of all individuals found in the United States, additional standards must be developed that delineate the particular rights of administrative detainees, especially those in immigration detention. While governments may legally detain immigrants and, in limited circumstances, asylum seekers, they must not do so arbitrarily, and the conditions of detention must comply with minimum standards for the treatment of prisoners. Currently, under international law, an administrative immigration detainee has far fewer legal protections than a convicted criminal who has committed a serious crime.
United States Law and Policy
Due Process Rights of Immigrants
Depriving a person of his or her liberty is a serious matter, as the international standards discussed in the preceding section make clear. Immigrants detained by the INS are protected both by those international laws and standards and by the laws of the United States. Over the decades, the United States has developed elaborate systems of rules and standards designed to ensure that the deprivation of liberty will never be arbitrary and that if individuals are deprived of their liberty after just legal proceedings, the conditions in which they are held must be humane.
The Fifth and Fourteenth Amendments to the U.S. Constitution state that no person may be deprived of "life, liberty, or property, without due process of law." The U.S. Supreme Court has long recognized that the Constitution's most fundamental guarantees apply both to citizens and non-citizens, including those non-citizens who have illegally entered the United States. In Shaugnessy v. United States, for example, the Supreme Court insisted that aliens are entitled to due process before being deported: "Aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law."81 Similarly, in Plyler v. Doe, the Supreme Court reaffirmed its commitment to protecting the rights of aliens: "Whatever his status under the immigration laws, an alien is surely a `person' in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as `persons' guaranteed due process of law by the Fifth and Fourteenth Amendments."82
INS detention and removal policies fall within the ambit of the Constitution's due process guarantees. Most obviously, when it detains a person, the INS takes away his or her liberty. In the case of asylum seekers, deportation or removal from the United States and return to their country of origin - refoulement - may actually constitute a deprivation of life, since those forced to return may literally face death at the hands of their abusive home governments. Thus, one federal appellate court has declared that although "deportation is not a criminal action...the consequences may more seriously affect the deportee than a jail sentence. The liberty of the individual is at stake and "meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standard of fairness."83
Individuals in immigration proceedings have a right to legal counsel, but not at government expense.84 In general, constitutional due process guarantees protect against interference with the right to counsel in immigration proceedings, and require that detainees be given a reasonable opportunity to secure legal representation. But unlike criminal detainees, the U.S. government is not obligated to provide free legal assistance to the immigrants and asylum seekers it detains and deports.85 Despite the fundamental interests at stake in INS detention and removal of immigrants, courts have not consistently found that all immigrants have due process rights co-extensive with those of U.S. citizens and permanent residents. Indeed, U.S. courts have held that some categories of immigrants have few due process rights at all.86
People in INS detention in the United States are being detained for administrative reasons, not as punishment for criminal behavior. They are detained: because they lack valid documents for entering or remaining in the United States; to protect public safety; to ensure their presence at ongoing immigration proceedings; or to prevent them from remaining in the United States after they have been ordered to return to their home countries.
Immigrants face trial in the United States, like any U.S. citizen, if they are accused of violating state or federal criminal laws. If convicted, they may be punished and made to serve a criminal sentence. After the criminal timeis served, INS detainees are then usually transferred to INS custody. These individuals - labeled "criminal aliens" by the INS - risk losing their legal resident status in the United States based on convictions for certain crimes.
Recent changes in U.S. immigration laws increased the number of offenses that serve as grounds for detaining and deporting immigrants. According to the law, immigrants (including those legally in the United States) who have been convicted and sentenced for what the INS calls an "aggravated felony" must be detained and deported. But the law casts an absurdly wide net: any violation of the criminal law that carries a sentence of a single year or more is considered an "aggravated felony" under the immigration law, even if the violation of the law was for something as minor as petty shoplifting, and even if the sentence was suspended by a judge. 87
Thus, a generally law-abiding person who has lived in the United States for years might find himself or herself detained and deported away from work and family for something as minor as having received a suspended sentence for possessing a small amount of marijuana or for shoplifting. The new immigration law is retroactive in its application. An immigrant who had a minor brush with the law many years ago, and who has an entirely clean criminal record ever since, may now be detained and deported. Detention pending deportation may be, and frequently is, for a time period far longer than that of the original criminal sentence.
Recent Changes to U.S. Immigration Laws
In 1996, on a wave of public anti-immigrant sentiment, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). In April 1997, IIRIRA went into effect, eliminating many of the statutory rights that immigrants had enjoyed for decades. The impact of many of the statutory changes is not yet completely clear, since they are being implemented by the INS in a somewhat piecemeal fashion while legal challenges to some of the law's provisions were underway at the time the research for this report was conducted.88
Under IIRIRA, all immigrants who have been "admitted" into the United States at any point have a right to go through a "removal hearing" before being removed from the country, while those who were never properly admitted, regardless of their physical presence in the United States, are entitled to no hearing at all but may be instantly sent back to their home countries under a procedure that IIRIRA calls "expedited removal."89 Immigrants going through full removal hearings are given some due process rights under the law (for instance, they have the right to be represented by an attorney, although at no expense to the government). But immigrants in "expedited removal" have virtually no due process rights at all.
According to the INS, "expedited removals" are occurring at astonishing rates. In the six months between August 1, 1997 and January 31, 1998, the INS found that some 60,000 of the people who attempted to come in to the United States at ports of entry were subject to expedited removal. Of those 60,000, approximately half (29,000) voluntarily withdrew their applications for admission to the United States. The remaining 31,000 were placed in expedited removal proceedings; by the end of the six-month period, all but 2,000 of those placed in expedited removal had actually been removed. 90
Expedited Removal and Asylum Seekers
IIRIRA does provide an exception to the expedited removal process for individuals fleeing persecution. In order to avoid expedited removal, an immigrant must come forward at a port of entry and indicate "either an intention to apply for asylum or a fear of persecution."91 He or she is then referred to an asylum officer who will decide if the fear of persecution upon their return to the country of origin is "credible."92
According to IIRIRA, "[a]n alien who is eligible for [an asylum] interview may consult with a person or persons of the alien's choosing prior to the interview, or any review thereof... Such consultation shall be at no expense to the government" but legal advisors are not entitled to speak during the interview.93 If the asylum officer does not find that a credible fear exists, an asylum seeker can be ordered removed, but is entitled to a written explanation and to review of the decision by an immigration judge within seven days.
The law also mandates that all those seeking asylum in the United States shall be detained, "pending a final resolution of credible fear of persecution, and, if found not to have such a fear, until removed."94 This can mean months of detention in one of the immigration centers or local jails around the country used by the INS.
The provisions of IIRIRA relating to potential asylum seekers directly flout international standards relating to asylum seekers. Most obviously, international standards establish that asylum seekers should not be detained, except in grave and exceptional circumstances. International standards also provide that if detained, asylum seekers must have the right to challenge the legality of their detention promptly before an independent and impartial authority, but IIRIRA permits no such opportunity.
IIRIRA also places the burden on asylum seekers to come forward at the point of first contact with the INS to express a credible fear of persecution. Many asylum seekers are unable to do this: their lack of knowledge of asylum procedures and requirements, their lack of English language skills, and, often, their extreme disorientation and trauma render them uniquely ill-suited to immediately and persuasively establish that they have a fear of persecution. With little understanding of the situation in which they find themselves, many asylum seekers who would be capable of establishing asylum claims in a fair and thorough procedure, with the assistance of counsel, may have little or no chance to accurately express their fear of return in a three-minute interview with a busy immigration officer. Yet that interview, according to the INS, constitutes an immigrant's "only opportunity to present information concerning fears or concerns about being removed from the United States."95
Another fundamental problem with IIRIRA is that it places enormous power in the hands of immigration officials and asylum officers, who may be inadequately trained or who may have only a few minutes to spend with each entering immigrant. As the INS has noted, "In [fiscal year] 97, the Service conducted more than 475 million primary inspections. During the primary inspection stage, the immigration officer literally has only a few secondsto examine documents, run basic lookout queries, and ask pertinent questions, to determine admissibility and issue relevant entry documents."96
IIRIRA's procedures for identifying asylum seekers are grossly inadequate and lack the most basic guarantees of fairness and thoroughness. These procedures ignore the U.S. obligation, under international law, to create fair procedures to identify asylum seekers and to ensure that no one is returned to a country in which he or she will face persecution. IIRIRA creates a grave danger, amounting to a virtual certainty, that some asylum seekers will be wrongly detained and wrongly returned to their home countries in violation of the principle of non-refoulement.97
Like international law, most U.S. law governing detention conditions relates to the detention of prisoners who are either awaiting criminal trial or who have been convicted of a crime. This means that INS detainees are in a somewhat anomalous position, for there are few other situations in which people are detained by the U.S. government for purely administrative reasons. As discussed briefly above, immigrants are detained by the INS to ensure presence at asylum or removal proceedings, to ensure compliance with orders to return to their home countries, and to protect society if particular immigrants are deemed dangerous. Even those immigrants who are being removed from the United States based on prior criminal convictions are not in INS detention because of that crime, but because of their immigration status.
Unfortunately, no statutory law exists that clearly lays out minimum detention conditions applicable to administrative detainees such as immigrants in INS custody. As discussed earlier, INS detainees are in a situation that is most closely analogous to that of pre-trial detainees, since they are being detained only in order to secure their presence at legal proceedings, and to ensure compliance with immigration orders. The Supreme Court has noted that pre-trial detainees are constitutionally protected against any condition or practice that amounts to "punishment."98
U.S. immigration law makes little explicit comment on the subject of detention conditions for immigrants. Administrative regulations only require that detention centers: provide twenty-four-hour supervision of detainees;conform with any applicable federal, state or local safety and emergency codes; provide food service; and guarantee access to emergency medical care.99
Immigrants in INS detention are protected by the minimal constitutional guarantees of due process and the prohibition against cruel and unusual punishment. Courts have long held, as a result, that detained immigrants, particularly those who have legally "entered," have the right to asylum proceedings, to counsel, to court access, to adequate medical treatment, and to legal information.100
Some courts, however, have set very stringent standards for establishing other due process violations relating to conditions of confinement. In Lynch v. Cantanella, the Fifth Circuit Court of Appeals strongly supported detained immigrants' due process rights under the Fifth and Fourteenth Amendment to be free from mistreatment during confinement, but subsequent courts interpreted Lynch in ways that limit detainees' ability to seek redress. Now, detainees claiming constitutional violations based on conditions of confinement may have the burden of proving that "cruel treatment was maliciously inflicted upon them" and that they suffered "gross physical abuse."101 Further limiting detainees' rights, other courts have found that mere negligence leading to squalid jail conditions, did not give rise to constitutional violations.
The constitution's guarantee that no one shall be deprived of liberty without due process of law also requires that the decision to detain an individual must comply with minimum standards of procedural fairness. Detained immigrants, whether in the United States legally or not, may not be arbitrarily detained. Constitutional due process guarantees (in conjunction with the equal protection clause and the right to be free of cruel and unusual punishment) also arguably give detainees the right to have legal procedures and guidelines in place to prevent detention conditions from being arbitrary and punitive. Detention conditions should be reasonably consistent from place to place to ensure that some detainees are not deprived of the ability to obtain information about their rights, for instance, simply because they happen to be detained in one facility rather than another.
There is currently a class action lawsuit pending that challenges INS detention conditions on constitutional due process grounds.102 The suit, brought by the Center for Human Rights and Constitutional Law on behalf of all INS detainees, alleges that INS detention violates detainees' legal rights by failing to provide such things as visitation with their children, access to law libraries, adequate medical and dental care, and fair disciplinary proceedings. The plaintiffs are currently in settlement discussions with the INS.
If detainees are held, as they often are, in state or county correctional facilities, they are protected by the minimum guidelines established for all state or county detention facilities. But these guidelines vary greatly from state to state and county to county, and often go unenforced because there is no single system of oversight. In addition, the INS is not required by any law or regulation to regularly monitor or inspect the jails holding its detainees.
The INS contracts with hundreds of local jails to house almost 60 percent of all INS detainees. Although the INS could require by contract that such jails meet the special needs of INS detainees (for instance, complete and up-to-date materials on immigration law available to INS detainees), it does not routinely make any additional requirements than those minimum standards required by immigration regulations. The INS claims to have "set as a goal the accreditation by the American Correctional Association (ACA)103 of each of its detention facilities,"104 but many of the jail and prison facilities that normally house INS detainees remain unaccredited. Despite the fact that over half of all INS detainees are held in local facilities, it is entirely up to the state or local government to decide whether to seek ACA accreditation for local facilities.105 It should be noted that even if a jail is accredited by the ACA, this is no guarantee that it is an acceptable place for INS detainees, since ACA standards are designed for institutions that are criminal and punitive in nature, rather than for institutions housing administrative detainees.
Although the United States has agreed in principle that a standard policy on detention conditions is necessary to ensure that all detainees in all forms of immigration detention have the same access to telephones, counsel, visitors, the press, and legal information, such a uniform policy has not yet been adopted.106 On January 28, 1998, the INS released twelve detention standards covering: access to legal materials; detainee population counts; detainee marriage requests; telephone access; visitation; voluntary work programs; group legal rights presentations; hunger strikes; issuance and exchange of clothing; bedding and linens; medical care; religious practice; and suicide prevention and intervention. The INS plans ultimately to issue a total of forty-five standards. Most critically, these standards will not apply in the state and local jails in which many INS detainees are held, and where conditions are often most egregious.107
62 Article 7 of the International Covenant on Civil and Political Rights establishes that "all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person." G.A. Res. 2200A (XXI), December 16, 1966. Article 16(1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment requires that detainees must not be subjected to any form of torture or cruel, inhuman or degrading treatment while in detention. G. A. Res. 39/46, December 10, 1984. See also, the American Convention on Human Rights, O.A.S.T.S. No. 36, Nov. 22, 1969 and the Universal Declaration of Human Rights, G.A. Res. 46, December 10, 1948.
63 Adopted by U.N. Economic and Social Council resolution 663C (XXIV), July 31, 1957. Although it has not yet come into force, Article 17 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families establishes that migrant workers and members of their families shall, save in exceptional circumstances, be separated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons, including cases where the migrant worker or family member is in detention for violation of provisions relating to migration. For the purposes of the Convention, migrant workers are considered to include both those workers who have permission to enter the state of employment and those who do not. GA Res. 45/158, December 18, 1990.
64 U.N. GA Res., 43/173, U.N. Doc. a/43/49 (1988).
65 Universal Declaration, Article 9; ICCPR, Article 9(1).
66 ICCPR, Article 9(4).
67 Van Alphen v. Netherlands (U.N. Human Rights Committee, Communication No. 305) 1988.
68 "Under international law a de jure stateless person is one "who is not considered as a national by any state under the operation of its law." (Article 1, 1954 Convention relating to the Status of Stateless Persons). The term is also used to refer to those who are de facto stateless, namely, those persons who are unable to establish their nationality, whose nationality is disputed by one or more countries, or who lack an "effective nationality" and are thus unable to enjoy the rights associated with citizenship. For a fuller discussion, see UNHCR, State of the World's Refugees (Oxford: 1997), Chapter 6, and C. Batchelor "Stateless Persons: Some Gaps in International Protection" 7 International Journal of Refugee Law (1995).
69 1951 U.N. Convention Relating to the Status of Refugees, Article 1. The United States is a signatory to the 1967 U.N. Protocol Relating to the Status of Refugees, which expands the Convention.
70 Refugee Convention, Article 31(2).
71 The United Nations High Commissioner for Refugees (UNHCR) is the U.N. agency with the mandate helping to implement the Refugee Convention, and the official publications of the UNHCR have been recognized internationally as authoritative guides to interpreting the provisions of the Refugee Convention. In 1995, the UNHCR issued Guidelines on the Detention of Asylum Seekers which emphasize the undesirability of detaining asylum seekers, except in limited circumstances. UNHCR is currently in the process of revising the guidelines by improving procedural safeguards and suggesting alternatives to detention, among other revisions.
72 Universal Declaration, Article 14.
73 Refugee Convention, Article 31(1).
74 Arthur Helton, Detention of Refugees and Asylum Seekers, in Loescher, Refugee Issues in International Relations, (Oxford: Oxford University Press, 1989).
75 Refugee Convention, Article 9.
76 UNHCR Guidelines, Guideline 3. Detention of asylum seekers has been an area of concern for many countries that receive refugees. In 1996, the European Council of Refugees and Exiles (ECRE), a consortium of refugee organizations within the European Union, issued detailed recommendations on the detention of asylum seekers. The recommendations emphasize that asylum seekers should only be detained when state authorities demonstrate a compelling need based on the personal history of each asylum seeker, and call for conditions of detention that meet minimum international standards that protect their rights to such things as legal counsel and adequate health care. Position Paper on the Detention of Asylum Seekers, European Council on Refugees and Exiles, April 1996.
77 Ibid., Guideline 4.
78 The Guidelines for detaining asylum seekers who are under 18 are particularly strict: they state that children may be detained only as a measure of last resort, and for the shortest appropriate period of time. See Human Rights Watch, Slipping Through the Cracks: Unaccompanied Children Detained by the U.S. Immigration and Naturalization Service (New York: Human Rights Watch, 1997).
79 Women asylum seekers face particular problems in detention. The UNHCR's July 1991 Guidelines on the Protection of Refugee Women note that violence against women and girls does not necessarily abate when refugees reach an asylum country. In various official pronouncements, UNHCR has also made it clear that it is important to ensure that refugee women have ready access to female protection staff and female interpreters, as well as to reproductive health facilities including female medical staff and gynecologists.
We note also that unaccompanied minors are protected by a wide range of international standards. See Slipping Through the Cracks: Unaccompanied Children Detained by the U.S. Immigration and Naturalization Service (New York: Human Rights Watch, 1997).
80 Conclusion No. 44, Detention of Asylum Seekers, United Nations High Commissioner for Refugees, Executive Committee, 37th Session, 1986.
81 Shaugnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953).
82 Plyler v. Doe, 457 U.S. 202, 210 (1981).
83 Johns v. Dept of Justice, 624 F.2d. 522, 524. (5th Cir. 1980).
84 INS 240(b)(4)(A). An individual "shall have the privilege of being represented, at no expense to the Government, by counsel of the [individual's] choosing who is authorized to practice in such proceedings."
85 See Margaret H. Taylor, "Promoting Legal Representation for Detained Aliens," 29 Connecticut Law Review 1647 (Summer 1997) for a thorough discussion of the development of immigration detainees' right to legal counsel and current obstacles to representation.
86 In the past, courts have held that immigrants going through "exclusion" proceedings have fewer due process rights than immigrants in deportation hearings. This is because courts have drawn a highly academic distinction between immigrants who have legally "entered" the United States and those who have not. "Entry" is a legal term that encompasses persons detained at the border who may subsequently be paroled and live within the United States. This legal distinction has long been of tremendous importance, since few of the due process rights the courts have recognized for deportable aliens have been granted to excludable aliens. Thus, deportable aliens have been viewed as having, at a minimum, the right to be represented by an attorney of their choice in deportation proceedings, while excludable aliens have not had such a right to counsel. Similarly, deportable aliens have had a much wider range of appeal rights after negative rulings in their deportation cases. Immigration legislation passed in 1996 eliminated the distinction between the two proceedings and created a single category of deportation called removal.
87 The new immigration law retroactively redefines a host of offenses from drug use to spousal abuse, making them grounds for deportation.
88 For instance, the American Civil Liberties Union has challenged the legality of the retroactive application of the law and the prohibitions on federal court review.
89 "Admission" is defined as a lawful entry after inspection and authorization by an immigration officer. INA 101(a)13.
90 INS Fact Sheet on Expedited Removal Process, March 31, 1998.
91 INA 235(b)(1)(A).
92 "Credible fear" is defined as a "significant possibility" that an applicant could "establish eligibility for asylum." INA 235(b)(1)(B).
93 INA 235(b)(1)(B)(iv).
94 INA 235(b)(1)(B)(iii).
95 Immigration and Naturalization Act, 235 (b) (1) (B) (ii).
96 Federal Register, Vol. 62, No. 44, March 6 1997, p. 10318.
97 Two recent reports on the expedited removal process conclude that it has been a major human rights failure. In Slamming the `Golden Door': A Year of Expedited Removal (April, 1998), the Lawyers Committee for Human Rights (LCHR) found that at airports, immigrants and asylum seekers suffer from abusive treatment by INS officials, inadequate translations, and the denial of access to counsel. LCHR also noted "serious concerns" about the credible-fear determination process, including inconsistencies among asylum officers in the conduct of interviews, poor translation, and lack of preparation time for asylum applicants. LCHR also noted that the process has led to unnecessary imprisonment of bona fide asylum seekers.
Another report, by immigration attorneys working with the legal advocacy group Catholic Legal Immigration Network, found that immigrants and asylum seekers in expedited removal were at times shackled to airport benches for up to eighteen hours before being transported to detention facilities and that such aliens were denied food, were separated from traveling companions, and were denied telephone access. Some were permitted to make telephone calls but could not do so because their address books and other possessions had been confiscated. The report also found that many asylum applicants did not receive written information about the credible fear interview process in languages other than English, and did not receive adequate lists of free legal service providers. Reported in Siskind's Immigration Bulletin, November 1997.
98 City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983), citing Bell v. Wolfish, 441 U.S. 520, 545 (1979).
99 8 CFR 235.3. For a thorough discussion of the history of constitutional challenges to INS detention conditions, see Margaret H. Taylor, "Detained Aliens Challenging Conditions of Confinement and the Porous Border of the Plenary Power Doctrine," 22 Hastings Constitutional Law Quarterly 1807 (Summer 1995).
100 See, e.g., Haitian Centers Council v. Sale, 823 F. Supp. 1028 (EDNY 1993) (vacated per settlement agreement). See also Kerwin, p. 8.
101 Medina v. O'Neill, 838 F.2d 800, 803 (5th Cir. 1988). See also, Adras v. Nelson, 917 F.2d 1552 (11th Cir. 1990) finding INS officials immune from suit where detention was lawful and no gross physical abuse was proved.
102 Kattola v. Reno, CV. No. 94-4859, United States District Court, Central District of California.
103 The American Correctional Association is a non-profit organization that administers the only national accreditation program for adult correctional institutions. The ACA has developed thirty-five mandatory and 386 non-mandatory standards covering such topics as health care, physical conditions, staff training, discipline, food service, capacity and location of facilities. American Correctional Association, Standards for Adult Local Detention Facilities (1991), Standards Supplement (1998).
104 Federal Register, Vol. 62, No. 44, March 6, 1997, @ 10323.
106 It should be noted that such policies do exist with regard to detention conditions for unaccompanied minors. See Human Rights Watch, Slipping Through the Cracks....
107 Even in the facilities in which the standards will apply, they only have the status of operations policy, and are not legally binding on the INS.
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