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US: Say No to Proposal Allowing Indefinite Detention of Immigrants

Letter to Congressman Elton Gallegly and Congresswoman Zoe Lofgren

The Honorable Elton Gallegly
House Judiciary Subcommittee on  Immigration Policy and Enforcement
Committee on the Judiciary
2309 Rayburn House Office Building
Washington, DC  20515

The Honorable Zoe Lofgren
Ranking Member
House Judiciary Subcommittee on  Immigration Policy and Enforcement
Committee on the Judiciary
1401 Longworth House Office Building
Washington, DC  20515

Dear Chairman Gallegly and Ranking Member Lofgren:

Human Rights Watch writes with concern about legislative proposals that seek to give the Department of Homeland Security expanded powers to indefinitely detain immigrants in the United States.

Human Rights Watch is an independent organization dedicated to promoting and protecting human rights in some 90 countries around the globe. We work to secure increased recognition of and respect for internationally recognized human rights in the United States, focusing on issues arising from excessive punishment and detention, insufficient access to due process, and discrimination.

We believe that a proposed scheme of indefinite detention of immigrants violates constitutional guarantees of due process and US obligations under international human rights law.

Both US domestic law and international human rights law affirm the right to liberty and the need for effective safeguards against arbitrary and indefinite detention. [1]

The prohibition on arbitrary detention in US law applies to the detention of immigrants.[2]  In Zadvydas v. Davis, the US Supreme Court discussed the likely unconstitutionality of a statute that permitted the indefinite detention of immigrants.[3] The Court discussed the non-punitive, civil nature of immigration detention, which serves to aid in the process of deportation. However, if the purpose of the detention disappears, so does the right to detain.[4] That is to say, once deportation is no longer an option, immigration detention serves no reasonable purpose and becomes arbitrary.[5]

The prohibition against arbitrary detention in international human rights law extends to immigration detention.[6] The International Covenant on Civil and Political Rights (ICCPR), binding law in the United States since 1992, provides that "[e]veryone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention."[7] The Human Rights Committee, the international expert body that monitors state compliance with the ICCPR, has applied the prohibition to the situation of detained immigrants, and has concluded that immigration detention becomes arbitrary "if it is not necessary in all the circumstances of the case, for example to prevent flight or interference with evidence: the element of proportionality becomes relevant in this context."[8] This means that immigration detention becomes arbitrary when the governmental purpose of detention (such as securing an individual's presence for deportation) is no longer present.

Whether detention is arbitrary also requires determining, if the length of the detention is defined or predictable.[9] The need for predictability in any detention has been repeatedly stressed by the United Nations Working Group on Arbitrary Detention, which in a document laying out principles to protect detained immigrants, stated that any detention term must have a "maximum period" set by law and not be of "unlimited or of excessive length."[10] The Working Group has also stated that, "[g]rounds for detention must be clearly and exhaustively defined and the legality of detention must be open for challenge before a court and regular review within fixed time limits."[11]

The principle that detention of immigrants is invalid and arbitrary once the purpose of detention disappears is found in European human rights law as well. In the Kadzoev case, the Court of Justice of the European Union stated that "detention ceases to be justified and the person concerned must be released immediately when it appears that, for legal or other considerations, a reasonable prospect of removal no longer exists."[12] The European Court of Human Rights found that detention of immigrants for purposes of aiding deportation was only allowable if there were "realistic prospects of expulsion."[13] The European standard on detention of immigrants, established in the 2008 Return Directive, sets a firm deadline of detaining immigrants under final orders of deportation at six months, which can only be extended in exceptional circumstances.[14]

Certain governments in South America have also limited the detention of immigrants who have been ordered deported. In Argentina, for example, the law prohibits the detention of a non-citizen under a final order of deportation beyond 45 days.[15] After just 15 days of detention, the government must provide a detailed report to the courts justifying the extended detention every 10 days, up to a maximum of 45 days. In Brazil, the term of detention after a final order of deportation is issued is 60 days, renewable once for another 60-day period. After that, the detainee must be released and be placed under supervision.[16]

The US Congress should not seek to adopt legislation counter to the US Supreme Court, human rights laws binding on the United States, and a growing international consensus that indefinite detention of immigrants is contrary to fundamental human rights principles. Any legislative proposal that allows for the indefinite detention of immigrants, extended in intervals at the whim of a certifying government official, fails the prohibition against arbitrary detention.

Should detention no longer serve to aid in deportation, there is no justifiable rationale for allowing indefinite detention in the context of immigration detention. Immigration detention is not punitive. Public safety concerns should be addressed in the criminal justice system, with its concomitant protections. Any proposals to do otherwise neglect the clear language of the Constitution and international human rights obligations.


Antonio M. Ginatta
Advocacy Director, US Program
Human Rights Watch


[1] United States Constitution, Fifth Amendment. The Due Process Clause of the Fifth Amendment safeguards against arbitrary detention, as recognized by the US Supreme Court: "Freedom from imprisonment-from government custody, detention, or other forms of physical restraint-lies at the heart of the liberty that Clause protects." Zadvydas v. Davis, Supreme Court of the United States, 533 US 678 (2001). International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by the United States on June 8, 1992, art. 9(1). "No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law;" ICCPR, art. 9(4). "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."

[3] Zadvydas v. Davis, Supreme Court of the United States, 533 US 678 (2001), (accessed May 20, 2011).

[4] Zadvydas, 690.

[5] The US Supreme Court has stated that "[a]t the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed." Jackson v. Indiana, Supreme Court of the United States, 406 US 715, 738 (1972), (accessed May 23, 2011).

[6] Human Rights Committee, General Comment No. 8, The Right to Liberty and Security of Persons, U.N. Doc. HRI/GEN/1/Rev.1 (1982), para. 1. "Paragraph 1 is applicable to all deprivations of liberty, whether in criminal cases or in other cases such as, for example, mental illness, vagrancy, drug addiction, educational purposes, immigration control, etc." The UN Human Rights Committee is an independent expert body that monitors state compliance with the ICCPR and provides authoritative interpretation of the covenant.

[7] ICCPR, art. 9(1).

[8] A v. Australia, Communication No. 560/1993, U.N. Doc. CCPR/C/59/D/560/1993, April 30, 1997, para. 9.2 (emphasis added).

[9] UN Human Rights Committee, Communication No. 458/1991, A. W. Mukong v. Cameroon, U.N. Doc. CCPR/C/51/D/458/1991 (1994), para. 9.8. " ‘[A]rbitrariness' is not to be equated with ‘against the law,' but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law."

[10] UN Commission on Human Rights Working Group on Arbitrary Detention, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment regarding the situation of immigrants and asylum seekers, U.N. Doc. E/CN.4/2000/4/Annex 2 (1999), principle 7.

[11] UN Human Rights Council, Report of the Working Group on Arbitrary Detention, U.N. Doc. A/HRC/10/21, para. 67.

[12] European Union Agency for Fundamental Rights, "Detention of third-country nationals in return procedures,"

November 2010, (accessed May 20, 2011), p.34.

[13] Ibid.

[14] The 6 month deadline is only extendable by up to 12 months if the immigrant fails to cooperate or if there is a delay in documentation from the receiving country. "Directive 2008/115/EC of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals," Official Journal L 348, December 16, 2011, (accessed May 23, 2011), art. 15.

[15] Decreto 616/2010, Publicado en B.O. del 6/05/2010, Reglamentación de la Ley de Migraciones Nº 25.871 y sus modificatorias, (accessed May 23, 2011), art. 70.

[16] Law 6815/80 Foreigner Statute, (accessed May 23, 2011), art. 61, art. 73.

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