REPORT ON IMMIGRATION IN THE UNITED STATES:  DETENTION AND DUE PROCESS

8.         Outdoor recreation 

320.          The IACHR expressed concern over what was considered the “outdoor recreation” area at the Pinal County Prison.  The Inter-American Commission observed that there was no “outdoor” area at that facility; all there was a small empty space adjacent to each pod, with little exposure to the outdoors and sunlight through a skylight near the roof of the pod.  During the IACHR’s visit, the delegation observed that two detainees were playing an improvised game of handball in a triangular room.

321.          Both the Pinal County representative and the ICE representative for the Detention Standards Compliance Unit insisted that the space in question qualified as an outdoor recreation area under the detention standards.  The 2000 ICE Standard for “Recreation,”^[530] however, reads as follows:  “If a facility does not have an outdoor area, a large recreation room with exercise equipment and access to sunlight will be provided. (This does not meet the requirement for outdoor recreation).”^[531]  The Inter-American Commission understands that this is not the only example of inadequate “outdoor recreation.” A July 2007 GAO report contains photographs of inside areas of two other centers that are used as if they were “outdoor recreation” areas.^[532]

322.          While the Willacy center does have a real outdoor area, the center provides few opportunities for exercise and to enjoy time outdoors.  The IACHR noted outside each pod was a vacant and enclosed concrete area, about the size of a basketball court, surrounded by barbed wire, with a small, covered seating area.  The Willacy representatives reported that each pod of 50 detainees was given between one and two hours a day of recreation.  The Inter-American Commission’s observation was that it would be quite difficult for 50 people to be able to take exercise in that space at the same time.  Similarly, the IACHR observed that during the summer, when the temperatures go as high as 100˚F (38˚C), there would be very little shade and seating for the detainees who wanted to spend a moment of relaxation outdoors.

323.          The United States supplied the following observations in its October 2010 response:

The expansion of outdoor recreation opportunities and hours is an important part of the detention reform initiative.  Detainees should have the opportunity to recreate for the most practicable amount of time possible in an environment that supports leisure activities and outdoor sports and exercise.  Florence Service Processing center currently serves as a model for recreation space; it has a state-of-the-art outdoor recreation facility, with artificial turf, a re-paved running track around the perimeter, and new workout stations.  Outdoor recreation opportunities in other facilities have also expanded, with some facilities providing free movement access to outdoor recreation areas during daylight hours.

324.          The Inter-American Commission reiterates that the State must provide what is necessary for the physical well-being of all persons in its custody.  This obligation includes regular access to outdoor recreation.  Accordingly, the IACHR notes with satisfaction the information provided by the United States in the sense that this issue will be addressed as part of its detention reform initiatives.

9.         Attorney-client meetings and family visits

325.          The IACHR is very concerned by the heavy restrictions placed on confidential meetings between attorney and client, and the visiting areas for families and friends in some prisons that also house immigrant detainees.

326.          The Inter-American Commission received information indicating that the wing that houses some 600 immigrant detainees in the Pinal County facility does not have any area for attorney-client meetings or for visits.  Rather, the IACHR learned that attorneys meet with their clients through videoconferencing or when the detained immigrant is taken to the wing of the county prison where criminal inmates (some 900) are incarcerated, where there are about two meeting booths for the 1500 detainees in the two wings of the facility.  The Inter-American Commission observed that the booths look like a teller window at a bank, with a glass partition separating the attorney from the client and with very little space.  The IACHR observed that the space for passing documents to the client is only wide enough for two pages.  For example, in order for a detainee to review or sign any document, he must call the guard to bring the papers and/or pen to him.  A number of attorneys who have represented the detainees incarcerated in Pinal told the Inter-American Commission that they would not be representing any future detainees because, on several occasions, they had to wait for as much as an hour to meet with their clients, and found it difficult to have an effective attorney-client meeting in person.

327.          The IACHR is deeply troubled by the fact that immigrant detainees at Pinal are not permitted to meet with family or friends in person.  Consequently, all visits have to be by video teleconferencing. A number of detainees expressed their reluctance about the procedure, because it left them and their families with a sense of anguish and pain.

328.          In the case of the Willacy Detention Center, the Inter-American Commission notes that since the summer of 2009 it has had proper rooms where attorneys can meet with their clients.  It is troubling that this change did not take place until three years after the center went into operation.  With respect to this and other problems at the center, the staff there told the IACHR that the government built the centers very quickly in order to meet the goal of detaining and deporting more illegal immigrants.  This has meant that the facility has been catching up ever since to make sure that the necessary services are provided.^[533]  The Inter-American Commission notes that there are still  shortcomings; for example, when attorneys meet with clients, they do not have sufficient space to work.  Also, given the size of the facility and the frequent shortage of security personnel, attorneys commented that they sometimes have to wait quite a while for their clients to be escorted to the meeting.

329.          The IACHR is very disturbed by the staff’s comment to the effect that they could only rely on the county’s goodwill when requesting improvements, since Willacy County itself had no contractual obligation to make improvements to the attorney-client space vis-a-vis its contract with the private contractor.

330.          As for personal visits, Willacy has a hallway of booths with glass partitions for visiting relatives and friends.  The Inter-American Commission learned that the center only allows personal visits on weekends, for a half hour per detainee, and no physical contact is allowed.^[534]  The IACHR observed that there are 10 booths for an average population of 1400 detainees.

331.          The United States observes in its October 2010 submission that part of the detention reform initiative, includes exploring options for expanded family visitation.  According to the United States, “ICE is also exploring the use of video-teleconferencing to allow detainees contact with family members who may not be able to visit the detention facility” and “working to improve access to legal counsel and legal materials”, including access to materials that explain state laws on custody and family issues.

332.          The State adds:

On July 23, 2010, ICE launched the ODLS, a public, internet-based tool designed to assist family members, attorneys, and other interested parties in locating detained aliens in ICE custody.  The creation and implementation of the ODLS is a concrete example of ICE’s commitment to detention reform that is both transparent and meaningful.  The ODLS, located on ICE’s public website www.ice.gov, provides users with information on the location of the detention facility where a particular individual is being held, a phone number to the facility and contact information for the ICE Enforcement and Removal Office in the region where the facility is located.  The rollout of the ODLS also included the translation of the website, system informational brochure, and facility fact sheet in numerous languages.  Providing language access to ICE’s systems and information to all nationalities is an on-going goal of the agency.

333.          The Inter-American Commission considers that these are all valuable and relevant steps in the right direction.  However, the State must take the measures necessary to correct any other obstacles that might impair proper representation of the immigrants in their proceedings and, most especially, to eliminate restrictions on visits by family and friends.  The IACHR believes these unwarranted and disproportionate restrictions are unacceptable even for criminal detention, and are especially onerous in the case of immigration detention.

10.      Access to legal resources

334.          The Inter-American Commission is troubled by the limited legal resources and the equally limited access to those resources that it observed at the centers it visited.  At Pinal, each group of four pods, housing close to 200 detained immigrants, was given a small room that served as a “law library.” One “law library” that the IACHR observed had one computer with English-language material from the Lexis-Nexis system, one typewriter, one table with three chairs, and a carrel containing decisions, in English, of the Board of Immigration Appeals (BIA) up to 1998.  The Pinal team told the delegation that detainees could only go to the law library upon request and for a maximum of one hour.  The libraries did not have permanent staff to assist detainees with the use of the computer or the legal materials.

335.          The “law library” that the Inter-American Commission saw at the Willacy Detention Center was only a slight improvement over the one at the Pinal Center.  It, too, was inadequate and consisted of a room with a row of eight computers equipped with Lexis-Nexis, and a small collection of books on immigration law in English.  The “law library” was hardly commensurate with the number of detainees that this facility  houses (1400).  The Willacy team said that each pod of 50 detainees has the opportunity to go to the library for one or two hours a week.  The IACHR noticed that one person was in the library to assist with logistical questions, but not to assist with the legal materials.

336.          The Inter-American Commission is troubled by the fact that many immigrants have to represent themselves during their immigration proceedings, which in itself constitutes a considerable disadvantage. Many detained immigrants do not have much education and have a limited knowledge of English.  This makes it virtually impossible for them to search for and understand legal materials on their own.  Most of the detainees whom the IACHR interviewed said they did not have any idea what was happening with their cases.  And so, access to adequate and sufficient legal resources becomes all the more important and can have significant due process implications.

11.      Discipline

337.          As mentioned in the press release following its visits to Arizona and Texas,^[535] the Inter-American Commission is deeply troubled by the use of confinement (“administrative segregation” or “disciplinary segregation”)^[536] in the case of vulnerable immigration detainees, including members of the LGBT community, religious minorities and mentally challenged detainees.  Using confinement to protect a threatened population amounts to a punitive measure.  Equally troubling is the extent to which this measure is used as a disciplinary tool.

338.          The State observed in its October 2010 response that “a brief period of segregation for disciplinary reasons is sometimes necessary for detainees whose behavior does not comply with facility rules in order to provide detainees in the general population a safe and orderly living environment”.  According to the information submitted by the State, “a detainee may be placed in disciplinary segregation only by order of the Institutional Disciplinary Panel (IDP), or its equivalent, after a hearing in which the detainee has been found to have committed a prohibited act”.  The United States also points out that the maximum sanction is “30 days in disciplinary segregation per violation with a review every seven days” and that “it is very clearly articulated in the standards that placement in a special management unit is based on the amount of supervision required to control a detainee and safeguard the detainee, other detainees and facility staff”.

339.          The IACHR takes note of this information supplied by the State, but insists that the profound psychological and physical impact of confinement is well documented.^[537]  During its visits, the Inter-American Commission had an opportunity to speak with a number of detainees in administrative segregation, who were there because they feared for their safety if they remained among the general population.  In the Florence SPC, the IACHR observed that 4 of the detainees in administrative segregation had been there for nearly 150 days.  The Inter-American Commission learned that the immigration detainees held in segregation are released from their cells for just one hour a day for exercise, but have no meaningful contact with other human beings.  One detainee with whom the IACHR spoke said that the delegate was the first visitor he had had in 60 days of confinement.

340.          The Inter-American Commission has received numerous pieces of alarming testimony from immigrant detainees with mental illnesses, whose conditions deteriorated with the time spent in segregation.^[538]  According to the detention standards on mental health, mentally ill detainees should be housed in a therapeutic space or released to receive proper treatment.^[539]

341.          In addition to segregation, various immigrant detainees have asserted that prison officials place entire sections or cellblocks under lockdown for minor incidents, as when detainees are being too loud.^[540]  The IACHR learned that “lockdown” means that the detainees are confined to their cells for protracted periods of time, during which they are not allowed to receive visits, not even from their attorneys.  A December 2006 report by the DHS OIG pointed out that lockdown is also used on an individual basis.^[541]

342.          Finally, the Inter-American Commission is troubled by the numerous reports, from present and former detainees, recounting the verbal abuse to which security personnel at the centers subjected them, in addition to their threats of confinement or transfer.^[542]  A number of detainees told the IACHR that the security personnel treated them like criminals and that the constant verbal abuse had a very negative psychological effect.

12.      Grievance procedures

343.          The Inter-American Commission has received disturbing information to the effect that ICE’s grievance procedure has been systematically mismanaged.  The IACHR spoke with numerous detainees and former detainees who filed complaints, often several times over the same issue, and yet never received a reply.  Other detainees were afraid that if they complained they would face reprisals from the detention center’s staff.

344.          A report that the GAO did in July 2007 concluded that the ICE grievance database was not sufficiently reliable for audit purposes.^[543]  The report nevertheless revealed that of 1700 grievances reported in the OIG database, the OIG investigated 173 complaints between FY2003 and FY2006, and referred the others to other units of the DHS.^[544]  Neither the report nor the DHS’ comments on the report explain what happened to the other 1,527 grievances that detainees filed.^[545]  Furthermore, and consistent with the situation described in the section on “Telephone Access,” the GAO found that the OIG’s free grievance line was blocked in 12 of 17 detention centers visited.^[546]  Finally, the GAO reported that of the 409 grievances brought to the attention of the DHS Office of Professional Responsibility (OPR), that office answered only 98.^[547]

345.          In its October 2010 observations, the State points out that “the grievance procedures in PBNDS 2010 Standard have been substantially improved” and that “ICE also has developed a detainee handbook written in clear, plain language”.  This handbook conveys that detainees are afforded certain protections and rights, including the ability to grieve.  The United States informs that the new grievance standard will ensure that the rights of detainees are respected, including due process, with the ability to process a grievance quickly; translation and interpreter services so a detainee can understand and communicate with staff; and aids or services to ensure effective communication between a detainee and facility staff if there is any impediment in that respect.

346.          The Inter-American Commission welcomes the information supplied by the State on the improvements in the grievance procedure.  However, considering that the ICE detention standards are not enforceable and that the attorneys and other independent observers have very little access to ICE detention centers, the IACHR feels compelled to express its concern over the failings of the grievance system.

13.      Some reforms recently introduced or proposed for the future to the detention conditions of immigrant detainees

347.          On August 6, 2009, DHS announced that it intended to reform the current decentralized immigration detention system, which relies heavily on contracted bed space in state and local prisons that were built as jails and prisons to confine pre-trial and sentenced felons, and therefore are not suited to the specific needs of immigration detention.

348.          Accordingly, DHS announced that it intended to consolidate immigrant detainees in “fewer locations, closer to major cities with access to courts, attorneys, and under conditions that more consistently meet federal detention standards.”^[548] In its effort to create a “truly civil detention system,” DHS is exploring the possibility of converting hotels and nursing homes into immigration detention centers for non-criminal, non-violent migrant detainees. ^[549]   In addition, DHS is planning to create two new immigration detention facilities, which are intended to reflect DHS’s reforms toward a fully civil detention system.^[550]

349.    The United States informs that in order to reform ICE’s detention system, its ICE Office of Detention Policy and Planning (“ODPP”) surveyed each of the immigration detention facilities, met with stakeholders in regional community roundtables, and engaged trade and business stakeholders.  As explained by the State, this inventory of facilities allowed ICE to better understand the detention system and areas of possible improvement.

350.          DHS likewise plans to establish a risk assessment tool for classification of migrant detainees which it states will be used to place migrant detainees in an appropriate detention environment, including identifying migrants suitable for ATD programs.^[551]  Because of the significant cost-effectiveness of ATD programs, DHS is planning to expand ATD programs nationwide.^[552]  DHS announced that the new risk assessment tool for custody determinations will also factor in the needs of vulnerable populations, such as asylum seekers, families, and the elderly.^[553]

351.          The reforms were described by the United States in its observations the the IACHR draft report:

ICE is committed to devising and implementing a new detainee intake process to improve the consistency and transparency of ICE’s custody and release decisions.  Indeed, ICE is developing a new Risk Assessment and Classification Worksheet, referred to as a “risk assessment tool.”  The risk assessment tool contains objective criteria to guide decision-making regarding whether or not an alien should be detained or released; the alien’s custody classification level, if detained; and the alien’s level of community supervision (to include an ICE ATD program), if released.

Using the tool, immigration officers will be more likely to identify any special vulnerabilities that may affect custody determinations.  In fact, the risk assessment tool includes the following special vulnerabilities the Commission report had recommended be taken into consideration: disability, advanced age, pregnancy, nursing, sole caretaking responsibilities, mental health issues, or victimization, including aliens who may be eligible for relief related under the Violence Against Women Act (VAWA), as victims of crime (U visa), or as victims of human trafficking (T visa).

ICE is also developing training for our officers to identify vulnerable populations and has consulted with the DHS’ Office for Civil Rights and Civil Liberties (CRCL) and NGOs on special training topics.  In addition, CRCL has provided specialized training to a corps of new detention managers that included civil rights considerations in the treatment of asylum seekers and recognizing victims of trafficking.  The training also covered the special needs of women in detention and mental health issues that our facilities are often called upon to address.

352.          Further, the State refers to the 2010 Performance-Based National Detention Standards (PBNDS) which will supersede the earlier Performance-Based National Standards that were issued in September 2008.  In this regard, the United States clarifies that the 2008 PBNDS are the standards cited by the IACHR in its draft report, as the basis for criticism of the lack of accountability for providing ICE detainees with safe and humane conditions of detention.  The State asserts that “the new 2010 standards, developed in close consultation with the agency’s advisory groups and with DHS CRCL, have been drafted to address many of the criticisms or alleged shortcomings of the earlier standards cited by the Commission”.  The United States adds:

The 2010 standards will be more tailored to the unique needs of ICE’s detained population, as they maximize access to counsel, visitation, religious practices, and recreation, while improving the agency’s prevention and response to sexual abuse or assault that may occur in detention facilities and strengthening standards for quality medical, mental health, and dental care.

Although the Commission report urges ICE to regulate the application of its detention standards, the Department of Homeland Security has determined that implementing the 2010 PBNDS, which are performance-based standards, through internal policy publication rather than through a rulemaking, is the best way to ensure appropriate detention conditions for persons in detention.  First, the 2010 PBNDS identify specific outcomes and expected practices to be achieved for each standard.  In focusing on expected outcomes and identifying clear practices and objectives, the PBNDS enable the agency to measure specific outcomes over time and evaluate the progress each service provider achieves in meeting the defined service criteria.  In addition, the agency has in place and continues to develop strong measures for accomplishing detention oversight and for expediting remediation and modification if standards’ requirements are not met.

The steps ICE has taken to enhance monitoring of conditions in detention centers and to ensure compliance with the new standards, as further detailed in the next section of this response, provides the agency the necessary framework for enforcing the standards.  On the other hand, overly stringent rulemaking could impede the agency’s ability to expeditiously respond to changed circumstances, emergency situations, and crises to protect the health, safety, and welfare of detained aliens, agency personnel and contractors, and to ensure compliance with the standards.  Moreover, ICE policy is, like regulations, binding upon the agency and its partners.

353.          In announcing the proposed reforms, however, DHS did reiterate that it intended to continue immigration detention on a “large scale.”^[554] ICE Assistant Secretary for Immigration and Customs Enforcement John Morton said the following: “This is not about whether or not we detain people, this is about how we detain them.”^[555]

354.          The Inter-American Commission recognizes that these preliminary proposals to transform immigration detention into a civil detention system are an important step forward in enhancing recognition of migrant detainees’ human rights.  The response of the United States contains specific reference to the vulnerabilities the IACHR recommended to be taken into consideration, and also to other training programs in place for its officers, all of which are steps in the rights direction.  However, as mentioned in earlier sections, it must be reiterated here that a system that starts from a presumption of detention does not comport with the State’s obligation to protect the fundamental right to personal liberty, recognized in Article I of the American Declaration.  It is important to again make the point that based on the information supplied by DHS, only a small percentage of immigration detainees committed violent crimes^[556] and that between FY2007 and FY2009, approximately 67% of those immigrants detained by ICE had no criminal record at all.^[557]

355.          The Inter-American Commission concludes that many of these immigrant detainees should not be detained at all or more appropriately should be placed in an ATD program.  ICE’s risk assessment tool should involve a diverse range of options—from release, bond, reporting requirements, monitoring, and GPS bracelets to home detention or civil detention—and each immigrant detainee should be placed in the least restrictive environment possible. The IACHR notes that its finding implies a substantial reduction in detention levels and a diversion of those resources to more appropriate means to ensure that immigrants report for immigration proceedings. This will inevitably have a positive impact on the detention conditions of those persons that truly have to be incarcerated.  The Inter-American Commission is encouraged by ICE’s announcement that it will expand its ATD programs nationwide and urges the State to implement a robust and comprehensive ATD program.

356.          The IACHR welcomes the government’s acknowledgement that immigrant detainees are being housed in facilities that are inappropriate for civil detention and in locations that create significant obstacles for immigrant detainees to obtain effective legal representation.  To the extent that civil detention is necessary, the Inter-American Commission concurs with the government’s conclusions that detention facilities need to be closer to urban centers, or where there is better access to legal services and detainees’ families, and where more effective ICE oversight is facilitated.

357.          Further, the Inter-American Commission welcomes the government’s recognition that its current performance-based immigration detention standards closely resemble criminal detention standards and thus are inappropriate for civil detainees.  In this regard, the Inter-American Commission takes note of the State’s response regarding the imminent entry into force of the 2010 PBNDS, but still considers that reform would be most effective by enacting rules to guide internal policy.  Such rules could be adopted allowing for the necessary flexibility to provide for extreme, special or emergency situations. The IACHR hopes that under the 2010 PNDBS adequate accountability mechanisms will be applied effectively.

358.          The IACHR, however, observes that neither this recognition, nor the new PNDBS as described in the State’s response, will result in a civil immigration detention system.  Recognizing that developing a civil detention system is a long-term objective, in autumn 2009 DHS also announced that it would take some near-term action to regain control and accountability over the current U.S. immigration detention system.^[558]  First, ICE announced that it sought to centralize all detention contracts under ICE headquarters’ supervision.^[559]  As discussed earlier, ICE has conceded that only 80 of the more than 300 active detention contracts are being supervised by ICE headquarters.^[560]

359.          In the interim, ICE pledges that it “will aggressively monitor and enforce contract performance in order to ensure contractors comply with terms and conditions—especially those related to conditions of confinement.”^[561] ICE asserts that it will pursue all available means to remedy contracting entities’ poor performance under the detention contract, including termination of contracts.^[562]

360.          In addition, ICE announced that it would hire and train 23 additional federal employees to strengthen day-to-day oversight of the facilities that ICE affirms house over 80 percent of migrant detainees.^[563]  ICE plans also to implement a medical classification system “to support unique medical or mental health needs.”^[564]  It also intends to accelerate its efforts to provide an on-line locator system for friends, families, and attorneys to better locate detainees within the detention system.^[565]

361.          While the Inter-American Commission takes note of these government efforts to include accountability and oversight standards into the current detention system, which is currently decentralized and to a large extent privatized, the IACHR is deeply concerned that these efforts will not do enough to address the human rights issues in existing detention centers.  As was examined earlier, ICE does not have mechanisms in place to ensure compliance with the detention standards in the facilities operated under IGSAs and in contract detention facilities (CDFs).

362.          The Inter-American Commission recognizes that the additional daily federal oversight will help ensure adequate detention conditions for the immigrants.  However, the IACHR remains concerned that the direct federal oversight and accountability at ICE-contract centers falls short given the detention system’s size and complexity.

363.          The Inter-American Commission welcomes the DHS’ proposal to establish a new classification system in order to follow-up and monitor detainees who have specific medical and mental needs.  However, the DHS’ proposal does not specify which needed reforms will be introduced to ensure timely and quality medical care for detainees, beyond emergency care.

364.          Finally, the IACHR is pleased with ICE’s decision to accelerate the creation of an online detainee search engine that enables attorneys, family and friends to locate those who are within the ICE detention system.  However, the proposed reform does not address the specific concerns having to do with the high rates of detainee transfers within the system and the collateral human rights problems these transfers cause with respect to detainees’ ability to receive adequate due process and their right to a family life.

C.        Detention of families and children

1.         Immigrant families

365.          In addition to adult detention, DHS also detains migrant families and some unaccompanied minors.  Currently, migrant families are detained at one facility—the Berks Facility in Leesport, Pennsylvania with an 84-bed capacity.^[566]  In August 2009, DHS announced that it was converting the 512-bed T. Don Hutto facility in Taylor, Texas, which had housed families, into an all female detention facility.^[567]  ICE officials told the Inter-American Commission that they did not currently foresee the need to expand family detention, as ICE has adopted a policy of taking families out of mandatory detention and either releasing them or placing them into an alternatives to detention program.^[568]

366.          The IACHR welcomes the State’s effort to reduce its reliance on detention of immigrant families and use of the expedited removal process.  However, it is concerned that ICE does not have enforceable regulations that codify the current informal policies that drive decisions on the subject of family detention. 

367.          With regard to families that are still in detention, the Inter-American Commission observes that like adult detention, ICE has issued Family Detention Standards that establish the conditions under which families are to be detained.^[569] These, too, are not legally enforceable standards.  However, because family detention includes detention of minors, the federal court settlement in the case of Flores v. Meese, which established legally enforceable minimum conditions of care for minors in the immigration system, is applicable (hereinafter the “Flores settlement”).^[570] 

368.          The IACHR appreciates ICE’s decision to discontinue use of the T. Don Hutto facility for the detention of families.  As the Inter-American Commission indicated in the press release^[571] it issued after its visit, conditions there had improved over the descriptions that predated the signing of the ACLU Settlement in August 2007.^[572]  However, the IACHR is concerned that the practice of detaining immigrant families continues with no extraordinary reasons to justify it.  Whatever the case, because of the terrible psychological impact that detention can have, the Inter-American Commission considers that when a family with children has to be detained, it ought to be transferred to the custody of the ORR, an office that is more experienced in addressing children’s needs.  Furthermore, every effort must be made to ensure that the period of detention is as brief as possible.

369.          The IACHR is deeply disturbed by the reports received concerning immigrants who have lost custody of their U.S.-born children while a mother and/or father was in detention.^[573] A January 2009 DHS OIG report confirmed that if a U.S. citizen child is identified by CBP or ICE with an apprehended undocumented parent, that child is released to the parent’s designated custodian or to state child protective services.^[574]  The Inter-American Commission was informed that under the federal Adoption and Safe Families Act a parent loses custody of his or her child if the child is in state protective custody for 15 out of the previous 22 months.^[575]  A detained parent has no means to participate in state protective custody proceedings and the IACHR has learned that state protective custody phone numbers are not incorporated into the pro bono phone service.^[576]  The Inter-American Commission understands that ICE has guidelines to try to place sole caregivers into Alternatives to Detention programs.  The IACHR urges the State to rigorously implement those guidelines.

370.          With regard to detained parents that may retain custody through immigration proceedings, the Inter-American Commission is alarmed to learn that many are not consulted or heard with respect to custody determinations for their U.S. citizen children in the event that they are ordered deported from the United States.  The IACHR, therefore, also urges the State to give meaningful consideration to the wishes of a parent ordered deported when it examines the question of what constitutes the “best interests” of that parent’s U.S. citizen child.

2.         Unaccompanied children

371.          Under the 2002 Homeland Security Act (HSA), custody of unaccompanied minors has been legally transferred into the Office of Refugee Resettlement (ORR) although, as will be explained, some still remain in ICE custody.^[577] There are a number of handbooks and standards for the care of unaccompanied children.  Still, it was the Flores settlement that established legally enforceable standards for their treatment.^[578]

372.          The Inter-American Commission learned that CBP apprehends approximately 90,000 unaccompanied children (“UAC”) annually along the southern United States border.  Approximately 8,300 of those children are transferred into ORR.^[579] The rest, the IACHR understands, are Mexican unaccompanied children who are immediately repatriated to their country.^[580]  From its visits and other reports, the Inter-American Commission has learned that approximately 60 percent of children placed in ORR custody are ultimately reunited with a parent, relative or sponsor in the United States.^[581]  

373.          The IACHR was generally very satisfied with the conditions of care provided for unaccompanied children at the two facilities it visited.  The Inter-American Commission has received reports that in general the conditions of care for unaccompanied children have significantly improved under ORR.^[582]  The IACHR sees many new safeguards enacted under the 2008 Trafficking Victims Protection and Reauthorization Act (“TVPRA”) and urges the State to ensure that all its measures are fully implemented.^[583]  

374.          The Inter-American Commission is, however, concerned that many shelters for unaccompanied children face challenges in recruiting and retaining qualified medical, mental health, social work, and other professional staff due to their often rural locations.  Moreover, the IACHR is very concerned that ORR has not fully established an effective, confidential grievance and monitoring system.^[584] The Inter-American Commission has learned that this situation has led to the closing of a number of UAC facilities over the past few years and to lawsuits alleging physical and sexual abuse of children.^[585]

375.          The IACHR is troubled by reports of the inadequate and at times abusive treatment of unaccompanied children in the short-term custody of the U.S. Customs and Border Protection (“CBP”) prior to transfer to the ORR.^[586]  While the CBP or DHS custody is supposed to be no longer than 72 hours,^[587] the Inter-American Commission has learned that many of the CBP stations are not equipped to provide the most basic necessities, such as food, water, and sleeping accommodations.^[588] This is particularly concerning given the fact that a significant percentage of the persons that CBP apprehends at the border have been exposed to desert conditions for multiple days.^[589]

376.          The IACHR was also disturbed by reports that ICE continues to retain custody over certain unaccompanied minors that should be transferred to the ORR.^[590] It has been reported to the Inter-American Commission that this is due to the use of unreliable dental exams to determine UAC age, which sometimes overestimate a child’s age, and because ICE sometimes retains custody of UAC with criminal convictions in the United States by designating them as “accompanied” because they have parents or relatives in the United States who refuse to come forward.^[591]

D.        Impact of detentions on immigrants’ due process

377.          In addition to the human rights concerns with regards to detention conditions, detention of immigrants also has a significant impact on detainees’ chances of putting on an adequate defense and filing claims for relief.  As a result, the quality of due process in immigration proceedings is affected.

1.         Lack of access to legal representation during detention

378.          The IACHR observes the significant disparity in access to legal representation for detained immigrants.  According to government statistics, in FY2008 approximately 40% of non-detained immigrants were represented in their immigration proceedings, whereas just 16% of detained immigrants were represented by counsel.^[592] The lack of legal counsel, the Inter-American Commission observes, has a profound impact on the chances of relief.  The Constitution Project reports that just 3% of detained, unrepresented asylum seekers were granted relief.^[593]  By contrast, a November 2009 New York City Bar Justice Center report concluded that 39% of immigrant detainees it interviewed at the Varick Federal Detention Facility had potentially meritorious immigration claims for relief.^[594] 

379.          The IACHR has identified the main reasons why these figures on legal representation are so low.  First, the majority of the immigration detention population is housed in facilities in rural locations, which creates significant obstacles for pro bono representation.   Human Rights First reports that 4 of the 6 largest immigration detention facilities are 50 or more miles from a major urban center.^[595] During its visits, the Inter-American Commission observed that near Florence, Arizona, there were 5 immigration detention facilities, with an ADP of 2,718 immigrant detainees in FY2009.^[596]  These were in practice served by one small pro bono legal service provider.  Similarly, in the Rio Grande Valley in South Texas the IACHR observed that ICE housed in FY2009 an ADP of 3,891 immigrant detainees in four large detention facilities where there were only a handful of pro bono and immigration attorneys.^[597] These nine facilities alone housed approximately 20% of ICE’s daily immigration detention population in FY2009.^[598]     

380.          Second, the obstacles to representing detained immigrants^[599] greatly shrink the attorney pool and restrict the number of clients each attorney can represent.  The Inter-American Commission has received a number of reports indicating that pro bono legal providers find it very difficult to convince private attorneys to represent detained immigrants because of the additional time commitment in representing such persons. For those attorneys who do agree to represent detained immigrants, the IACHR received multiple reports that they often have difficulty getting into the detention center,^[600] a problem that is compounded by the fact that they spend hours traveling to and from their client’s detention center.  Many attorneys reported that meeting with a detained client can at a minimum take a half-day of work, often more.

381.          Even if detained immigrants do obtain legal representation, the Inter-American Commission observes that detention continues to impact their ability to present claims for relief.  For example, the IACHR understands that to prove a claim for asylum, asylum seekers often need to gather numerous affidavits confirming the various elements of their claim and many times need to undergo an independent medical and psychological exam to prove persecution.^[601] It is difficult to gather this type of evidence while detained.  As a consequence, the Inter-American Commission observes for example that, in FY2003, a non-detained, represented asylum seeker was twice as likely to be granted protection as a detained, represented asylum seeker.^[602]

382.          The United States also addresses the issue of the right to legal counsel in its observations to the draft of this report, stating that “ICE understands and appreciates the Commission’s concerns regarding the detention of aliens in ICE custody in rural locations”.  The State further indicates that “access to counsel is a key component of ICE’s detention reform” and it informs that the federal immigration agency “is working to secure detention space that is located near to the cities or towns where people are most frequently arrested”, which will allow to it detain people near the residences of their family or attorneys.  In the observations submitted to the Inter-American Commission, the State further says:

As a result, we have begun to consolidate the number of detention facilities in which we detain aliens in ICE custody -from more than 300 to approximately 250 facilities, several of which were more rural facilities- and we expect additional reductions in the number of our detention facilities in the near future.  In addition, the agency is also looking into opening larger facilities in urban areas including opening large facilities to meet consistent detention needs in the Northeast and California.  Finally, we are in the process of revising our current detention standards and preparing policy initiatives that we expect will, in practice, limit the frequency with which ICE transfers its detainees, so that they can remain close to their family and/or counsel.

For those individuals who are unable to obtain representation, ICE’s National Detention Standards and 2008 PBNDS require that the agency’s detention facilities ensure that an alien has access to immigration courts, counsel (where possible and at no expense to the government), and comprehensive legal materials.  In accordance with the requirements of these standards, aliens detained in ICE custody—regardless of their geographic location—should be provided with access to law libraries, names and contact information for pro bono counsel, confidential access to attorneys, and access to computerized legal databases or law libraries, among other resources.

Some facilities have made arrangements with local legal service organizations, such as The Florence Project, which provides free legal services to individuals detained in ICE custody in Arizona and seeks to educate aliens concerning ways to defend removal charges and seek relief from removal.  ICE appreciates and supports the mission and role of nonprofit legal service organizations like the Florence Project and for several years has provided access to the facility and its detainees for the organization.  ICE also partners robustly with DOJ to provide access to the facilities for their legal orientation programs (LOP).  To that end, ICE fully supports DOJ’s expansion of LOP programs in additional facilities.

383.          The IACHR acknowledges these efforts as a step in the right direction toward compliance with the international obligations set forth in the American Declaration.  The Inter-American Commission also highlights the positive initiatives by the State to reach unrepresented detained immigrants through its Legal Orientation Program (“LOP”).^[603]  The LOP is a government-funded program that sponsors local legal service providers to give legal advice to detained immigrants. The LOP partner organizations provide immigration legal orientations through group immigration overview presentations, person question and answer periods after group presentations, group workshops, and case referrals to pro bono attorneys.^[604]

384.          As of March 2010, LOP was operating in 25 detention facilities across the United States, including the most populated detention facilities.^[605]  It has been reported to the Inter-American Commission that attorneys funded under the LOP are only permitted to spend approximately 25% of their work hours in direct representation of clients. The Vera Institute reports that in FY2006 the LOP reached 25,500 detainees out of the 283,115 detained (9% of the detention population).^[606]  In its May 2008 report, the Vera Institute noted that the expansion of immigration detention has outpaced the expansion of funding for the LOP, with the result that LOP services continue to reach a shrinking percentage of the immigration detention population.^[607]  While no substitute for legal representation, the IACHR notes that the LOP has given detained immigrants a basic understanding of their immigration proceedings.^[608]  The Inter-American Commission would therefore urge the State to increase the funding and expand the reach of the Legal Orientation Program, as an important tool to improve the due process received in immigration proceedings.

2.         Prevalence of stipulated orders of removal

385.          The IACHR is concerned by reports that show a significant rise over the past few years in the annual volume of Stipulated Orders of Removal.  Under a Stipulated Order of Removal, the Inter-American Commission learned, an immigrant admits that he or she is in the country illegally, waives the right to immigration proceedings, and agrees to the applicable mandatory bars to reentering the United States.^[609] The IACHR has learned that many times a Stipulated Order of Removal is confused with “Voluntary Departure,” which carries no bars to reentry into the United States.^[610]  Based on government data obtained through an FOIA request, the number of annual Stipulated Orders of Removal jumped from 5,481 in FY2004 to 31,554 in FY2007.^[611]

386.          The Inter-American Commission is particularly troubled by the demographics of those detained and the peculiar concentration of stipulated orders of removal in a select few detention facilities.  The Stanford Immigrants’ Rights Clinic reports that 95% of those who signed Stipulated Orders of Removal between 1999 and 2007 were not represented by counsel and 93% had no criminal record.^[612] Accordingly, immigration advocates posit that it is likely that at least a percentage of these immigrants that signed stipulated orders of removal would have a claim to remain in the United States if they had had the opportunity to speak with legal representation.^[613] The Stanford report further notes that nearly half of Stipulated Orders of Removal were signed at three detention facilities, with nearly 20% at the Eloy Detention Center in Arizona.^[614]

387.          With respect to the IACHR’s concern regarding unrepresented aliens not understanding their rights, the United States explains that the issue is addressed in the regulations and in the Executive Office of Immigration Review’s procedural memoranda.  These provisions express that “[i]f the alien is unrepresented, the Immigration Judge must determine that the alien’s waiver is voluntary, knowing, and intelligent” and that “the stipulated request and required waivers shall be signed on behalf of the government and by the alien…”.  The State adds that “the standard stipulation form advises the alien that by signing it, they may be barred from returning to the United States for up to 20 years or even permanently barred”.

388.          The IACHR appreciates this explanation, and considers that the safeguards are important, but considers that its concern remains in the sense that at least some of those apprehended immigrants are signing Stipulated Orders of Removal without understanding the difference between a stipulated order of removal and a voluntary departure in terms of their consequences.  The Inter-American Commission is also worried about the possibility that the immigrants are being subjected to pressure from arresting officers.^[615]

3.         ICE delays in filing notices to appear

389.          During the IACHR’s visits, a number of detainees complained that ICE had issued them incomplete “Notices to Appear” for their immigration proceedings.  The Inter-American Commission notes that a “Notice to Appear” (“NTA”) is the charging document, which includes the charges against the person and the time and place for a court hearing.^[616] Under federal regulations, ICE initiates removal proceedings against an individual by filing an NTA with the immigration court.^[617] ICE is under no legal obligation to file the NTA in the jurisdiction where the noncitizen was apprehended and the immigration court in the jurisdiction of apprehension does not have jurisdiction over a case until an NTA is filed.^[618]  Thus, ICE can choose the jurisdiction in which to initiate proceedings. Moreover, the IACHR learned that there is no legal deadline by which ICE must file with the immigration court.^[619]     

390.          During its visits, the Inter-American Commission reviewed a number of detainees’ NTAs and observed that all the NTAs included the alleged immigration violations.  However they failed to include the time and place for their court hearings. One group of detainees reported that they had been apprehended in Los Angeles two weeks earlier and subsequently transferred to Arizona without receiving notification of when and where they would be permitted to challenge their detention before an immigration judge.  The detainees reported that they had tried multiple times to reach the ICE officer responsible for their cases but had yet to receive a response.  NGOs and attorneys report that immigrants are frequently detained for days, weeks, and sometimes over a month before being issued a completed NTA.^[620]

391.          Immigration attorneys report that it is a common practice for ICE to delay the filing of an NTA, often to provide it the opportunity to expeditiously transfer persons to detention facilities thousands of miles away from the point of apprehension.  With respect to this specific issue, the United States clarifies that it is not the policy of the immigration authorities to delay the issuance of an NTA to facilitate a transfer but rather that “ICE policy dictates that a determination whether to charge an alien shall be made within 48 hours of an alien’s arrest and that the NTA shall be served upon a detained alien within 72 hours”.  The Inter-American Commission appreciates the clarification.

392.          On the other hand, the October 2009 report of Dr. Schriro acknowledged significant detention space shortages in California, the Mid-Atlantic, and Northeastern states, while having surplus space in states in the south and along the U.S.-Mexico border.^[621]  A number of attorneys from Pennsylvania reported to the IACHR that they had entered into representation agreements with detained immigrants and petitioned the local immigration court for a bond hearing, only to be informed by the immigration judge that the court could not determine whether it had jurisdiction over the person or the case because ICE had not filed the NTA.^[622]  Subsequently, the attorneys would learn that their clients had been transferred to Texas where ICE filed the NTA.^[623]  After submitting complaints to ICE’s regional field office, the attorneys learned that ICE was systematically transporting immigrant detainees from York, Pennsylvania to Texas and other distant detention facilities.^[624]   

393.          The Inter-American Commission received information about the use of “air transportation hub” protocols^[625] to transfer immigrant detainees significant distances from the point of apprehension, where many immigrants have their family in the United States, support networks, and possibly an attorney.  Moreover, given the dearth of pro bono and immigration attorneys near the facilities where these detainees are transferred, the “air transportation hub protocol” transfers and similar transfers have the effect of severely limiting access to legal representation for these immigrant detainees.

4.         Pervasive use of transfers between detention facilities

394.          Related to the issue of the NTAs, the IACHR is alarmed by the high frequency of detainee transfers within the U.S. immigration detention system, many times outside the jurisdiction where the immigrant was apprehended.  According to ICE data obtained by TRAC, in FY2008 over 50% of immigrant detainees were transferred at least once and 24% were transferred multiple times.^[626]  Under U.S. law, an immigrant detainee does not have the right to immigration proceedings in the jurisdiction of apprehension.^[627]   The ICE data demonstrates that, as suggested by Dr. Schriro’s report,^[628] the highest transfer rates are to states and facilities where there is ample detention space but few pro bono and immigration attorneys.^[629]

395.          The Inter-American Commission observes that the decision to transfer is within the jurisdiction of ICE; opportunities to appeal the ICE decision to an immigration judge are few.^[630]  Under the national detention standards, ICE is supposed to take into consideration whether a detainee is represented by counsel prior to making a decision to transfer a detainee.^[631]  A November 2009 DHS OIG report, however, found that detention officers did not consistently determine whether a detainee had legal representation or scheduled court proceedings prior to transferring said detainee.^[632] 

396.          The IACHR observes that transfers have a profound impact on the quality of due process for immigrant detainees.  First, many immigrants subject to transfers are apprehended in the interior of the United States, which means that many have families and friends living in the United States.   Detainees and immigration advocates have told the Inter-American Commission that these community connections offer significant financial, logistical, and psychological support for detained immigrants that challenge the immigration charges against them. ^[633]

397.          Second, many of these transfers are to detention facilities located where there are few legal service providers.^[634]  A December 2009 Human Rights Watch report found that the highest rates of transfers were to Texas and Louisiana, the two states with the country’s lowest ratios of immigration attorneys to immigration detainees.^[635]  While the IACHR is aware that an out-of-jurisdiction attorney can still represent a transferred immigrant detainee, the Inter-American Commission believes the additional obstacles would greatly affect the quality of representation.

398.          Third, the IACHR considers that all the evidence necessary for a bond hearing and the underlying immigration claims are located in the district of apprehension, making effective presentation difficult.  In deciding the amount of a bond, an immigration judge weighs a person’s flight risk in part by evidence such as community ties, family relationships, and possible employment.^[636] If a transferred immigrant detainee has no way of offering witnesses in person, then he or she faces additional challenges to obtain a reasonable bond amount and be released for the duration of his or her immigration proceedings.

399.          Fourth, the Inter-American Commission observes that the immigration law in each U.S. federal circuit can vary significantly.^[637] The information received indicates that the highest rates of immigrant transfers are into the federal court of appeals for the Fifth Circuit (Louisiana, Mississippi, and Texas),^[638] which reportedly has very low grant rates of immigration relief.^[639]

400.          Finally, the IACHR is concerned by a February 2009 report indicating that ICE does not have a uniform method of ensuring that detention facilities are consistently transferring medical records with detainees.^[640]  The Inter-American Commission has been told that at times, detainees are not transferred with their complete medical records, leading to disruptions in care.^[641]

401.          With respect to these considerations, the United States explains that “ICE has spent the last several months evaluating best and current practices nationwide with respect to issues affecting detainee transfers” and that based on its findings “the agency is currently drafting a transfer policy that we expect will limit the frequency of detainee transfers nationwide with a goal of keeping detained aliens near their family and counsel and address many of these concerns, including mandating a timeline by which agents/officers must file Notices to Appear with the immigration court”.  The State informs that it hopes to develop “a national transfer policy which meets at least some of the needs of all interested parties, including the individual in our custody and his/her counsel(if any)”, even if “there are times when transferring a detainee is in the best interests of the individual”.  The State asserts:

Transferring a detainee is not used as a punitive measure, nor will it be under the new policy.  To the contrary, ICE appreciates the significant benefit that staying in a facility near family members and attorneys can have on an individual detainee.  Therefore, ICE will make detainee transfer determinations after thoroughly taking account of all information currently available to the agency.

402.          The Inter-American Commission values the information supplied by the State and will continue to monitor the situation to verify the practical application of these positive measures and policies.

5.         Concerns with the use of video conferencing for credible fear interviews and merits hearings

403.          With expanding immigration detention and the use of remote facilities, the IACHR is deeply concerned with the increasing reliance on video conferencing for immigration proceedings.^[642]

404.          The United States provided the following observations in its October 2010 submission to the IACHR:

Video conferencing is an important tool in ensuring the efficient functioning of immigration proceedings which Congress specifically authorized for immigration proceedings.  See INA § 240(b)(2)(A)(iii); 8 U.S.C. 1229a(b)(2)(A)(iii).  Without video conferencing, proceedings would take longer to complete for several reasons, including, in some instances, the fact that the agency may be required to rely more heavily on detainee transfers to ensure court appearances, and, as a result, detention time would be prolonged as, for example, the time between court dates is extended.  One of the uses for video conferencing is to allow immigration proceedings to move forward while criminal aliens are incarcerated and therefore not available to attend immigration proceedings.  In addition, allowing video conferencing can provide a forum for distant witnesses (who would otherwise be unavailable) to testify on behalf of an alien and therefore serves to improve the quality and quantity of admissible evidence.

405.          The Inter-American Commission observes that in U.S. federal criminal proceedings video conferencing can only be used for initial appearances and arraignments.^[643]  Yet, the IACHR has learned that the U.S. immigration courts are using video conferencing for hearings on the merits.^[644]   For example, Human Rights First reports that in FY2007 the U.S. asylum office used video conferencing to conduct 60% of its credible fear interviews.^[645] 

406.          During its visits, the Inter-American Commission had the opportunity to twice observe immigration proceedings being conducted remotely via video conferencing.  The IACHR delegation noted how disconnected the detainee at the detention facility seemed from the judge and the proceedings in the court room.  The Inter-American Commission is deeply concerned that this disconnect may inhibit immigrant detainees from presenting effective testimony and prevent the immigration judge from making accurate credibility evaluations on important factors such as demeanor and body language.^[646]  The IACHR notes that video conferencing diminishes the quality of a detainee’s legal representation, as an attorney must decide whether to be with the client at the detention facility to assist the client or in the courtroom with the immigration judge and DHS attorney.^[647]  Finally, the Inter-American Commission has received information indicating that video conferencing creates additional obstacles for complete and accurate interpretation, greatly reducing detainees’ ability to understand and participate effectively in their proceedings.^[648]  

407.          The IACHR takes note of a 2008 analysis published in the Georgetown Immigration Law Journal, which found that based on U.S. immigration court statistics in FY2005 and FY2006 asylum seekers who had their merits hearing via video conferencing were half as likely to be granted relief.^[649]

408.          Finally, it is very troubling that this mechanism is used in proceedings involving unaccompanied children^[650] and persons with mental illness,^[651] where the due process impact is considerably greater.

6.         Due process for vulnerable groups

a.         Unaccompanied children

409.          Considering the complexity of immigration proceedings, the Inter-American Commission is deeply concerned that State-funded legal representation is not provided to unaccompanied children.  A February 2009 Women’s Refugee Commission report estimated that approximately 60% of unaccompanied children do not have legal representation in their immigration proceedings.^[652]  The IACHR welcomes the State’s effort to fill that void through its Legal Orientation Program, and the efforts by non-profit organizations like Kids In Need of Defense (KIND).^[653] The Inter-American Commission also recognizes that the State has made asylum protection more available through the Special Immigrant Juvenile Status.  However, the IACHR urges the State to provide the means necessary so that all unaccompanied children have legal representation during immigration proceedings.

410.          As indicated earlier, the Inter-American Commission recognizes that many additional legal protections have been granted to unaccompanied children under the Trafficking Victims Protection and Reauthorization Act of 2008 (“TVPRA”).^[654]  The IACHR would like to place particular emphasis on the requirement to screen all unaccompanied children coming from Mexico and Canada to identify potential victims of trafficking or asylum seekers.  The Inter-American Commission received some reports from immigration attorneys to the effect that the language of the protocol developed by ICE and the CBP to fulfill this legal requirement was not effective in identifying potential victims.

b.         Immigrant detainees with mental disabilities

411.          The IACHR is likewise troubled that State-funded legal representation is not provided to immigrant detainees with mental disabilities.  Given the Inter-American Commission’s observations with respect to the inappropriate and deleterious care provided to ICE detainees with mental illnesses, proper legal representation is urgently needed.  Moreover, as in the case of unaccompanied minors, the IACHR does not understand how a person with a mental disability or mental illness could defend himself properly and effectively without being represented by counsel in the immigration proceedings.

412.          The Inter-American Commission, moreover, has learned that U.S. immigration courts have no established practice for immigrants with mental disabilities.  Under section 240(b)(3) of the INA, the Attorney General is required to establish regulations “to protect the rights and privileges” of immigrants with mental disabilities throughout their immigration proceedings.  However, as of the date of this report, the Attorney General has not fulfilled that obligation.^[655]  The IACHR underscores the fact that a person’s ability to understand or explain his or her interests in any legal proceeding is essential to ensuring due process.  The Inter-American Commission further observes that the lack of any guidance for immigration judges as to how to proceed in cases of immigrants  with mental disabilities has often led to delays in those proceedings and has left the immigrant with a mental disability languishing and his or her condition deteriorating as a result.^[656]

413.          The IACHR observes that even when immigration courts deem an individual incompetent to represent his or herself, a current ambiguity in immigration regulations regarding the appointment of a representative can lead to a fundamentally unfair result.  The current regulation states:

When it is impracticable for the respondent to be present at the hearing because of mental incompetency, the attorney, legal representative, legal guardian, near relative, or friend who was served with a copy of the notice to appear shall be permitted to appear on behalf of the respondent. If such a person cannot reasonably be found or fails or refuses to appear, the custodian of the respondent shall be requested to appear on behalf of the respondent.^[657]

414.          The Inter-American Commission, however, notes that the “custodian” of a detainee with a mental disability is ICE.^[658]  Thus, the regulation creates a violation of the immigrant’s right of defense, since the very entity that is trying to deport the person is appointed, in some cases, to represent his or her interests.  The IACHR urges the State to ensure that persons with mental disabilities have independent legal counsel.  The State must develop an effective program of representation for detained immigrants with mental disabilities.