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

II.        DRAFT REPORT AND RESPONSE OF THE UNITED STATES

21.              The IACHR discussed and approved a draft version of this report on August 2, 2010.  Pursuant to Article 60(a) of its Rules of Procedure, the report was sent to the United States on September 1, 2010 with a request that it submit its observations within a one month time period.  After an extension was requested and granted by the Inter-American Commission, the State submitted its response on October 19, 2010.

22.              In its response, the State expresses its appreciation for the opportunity to comment on the draft report, and its satisfaction for being able to facilitate the Commission’s visits to detention facilities and the consultations that took place during 2008 and 2009.  The United States indicates that since the research for this report was completed, the Department of Homeland Security of the Obama Administration launched its own comprehensive review of the immigration enforcement policy system, which in its opinion has resulted in important changes in the immigration enforcement policy arena.

23.              The United States highlights its pride in being a nation of immigrants, and values the contributions made by migrants to its economy, culture and social fabric, and points out that one out of five of the 190 million migrants in the world live in this country.  The State adds:

Immigration is an issue of critical importance to the United States, and accordingly is extensively addressed by U.S. law and policy.  International law recognizes that every state has the sovereign right to control admission to its territory, and to regulate the admission and expulsion of foreign nationals consistent with any international obligations it has undertaken.  This principle has long been recognized as a fundamental attribute of state sovereignty.  Immigration detention can be an important tool employed by States in exercising their sovereignty, as they ensure public safety and remove as expeditiously as possible individuals who may pose a threat to the security of the country or the safety of its citizens and lawful residents. Accordingly immigration detention, provided it is employed in a manner consistent with a State’s international human rights obligations, is permitted under international law.

24.              However, the State then goes on to express its opinion in the sense that “contrary to the Commission’s assertions, neither the American Declaration of the Rights and Duties of Man nor international law generally establish a presumption of liberty for undocumented migrants who are present in a country in violation of that country’s immigration laws”.    The United States stresses the importance of enforcing immigration laws and policies “in a lawful, professional, safe, and humane manner that respects the human rights of migrants regardless of their immigration status”.  The State agrees with  the Commission that it has an obligation to ensure the human rights of all immigrants, documented and undocumented alike, but it also considers that  many of the sources referred to by the Inter-American Commission do not give rise to binding legal obligations on the United States.  According to the position of the State, the American Declaration is “a non-binding instrument that does not itself create legal rights or impose legal obligations on signatory states”.  It is also the opinion of the State that Article 20 of the Statute of the Inter-American Commission “sets forth the powers of the Commission that relate specifically to OAS member states which, like the United States, are not parties to the legally binding American Convention on Human Rights”, which includes “pay[ing] particular attention to observance of certain enumerated human rights set forth in the American Declaration, to examine communications and make recommendations to the state, and to verify whether in such cases domestic legal procedures and remedies have been applied and exhausted”.

25.              The United States reiterates “its respect of and support for the Commission and the strong sense of integrity and independence which historically has characterized its work”.  It also requests “that in keeping with its mandate under Article 20 of the IACHR Statute, the Commission center its review of applicable international standards on the American Declaration and U.S. observance of the rights enumerated therein”.  The United States considers that the jurisprudence of the Inter-American Court of Human Rights interpreting the American Convention does not govern U.S. commitments under the American Declaration and that, likewise, “the advisory opinions of the Inter-American Court interpreting other international agreements, such as the International Covenant on Civil and Political Rights (ICCPR) are not relevant”.

26.              In its response, the State further mentions that in October 2009, the Department of Homeland Security issued a report which identifying some of the same concerns raised by the IACHR in its report.[31]  The United States indicates that this report was based on information gathered from 25 separate facility tours; discussions with detainees and employees; meetings with over 100 non-governmental organizations, and Federal, State, and local officials; and the review of data and reports from governmental agencies and human rights organizations.  As explained by the State, the DHS report describes the “unique challenges associated with the rapid expansion of ICE’s detention capacity from fewer than 7,500 beds in 1995 to over 30,000 today, as the result of congressional and other mandates” and it also “outlines core findings and key recommendations for building a new ICE detention system designed to hold, process, and prepare individuals for removal — as compared to the punitive purpose of criminal incarceration”.  The State further explains that in following up the DHS report, “sweeping reforms to transform the immigration detention system” would be undertaken, based on several key principles to be applied by ICE:

-                      Prioritize efficiency throughout the removal process to reduce detention costs, minimize the length of stays, and ensure fair proceedings;

-                      Detain aliens in settings commensurate with the risk of flight and danger they present;

-                      Be fiscally prudent when carrying out detention reform;

-                      Provide sound medical and mental health care to detainees;

-                      Provide the necessary federal oversight of detention facilities; and

-                      Ensure Alternatives to Detention (ATD) are cost-effective and promote a high rate of compliance with orders to appear and removal orders.

27.              The United States refers also to the creation of the Office of Detention Policy and Planning (ODPP) within ICE “to coordinate the agency-wide detention reform effort and transform the vision for reform into concrete and measurable actions and goals”.  Some of the accomplishments referred to by the State in its response are the following:

-                      Creation of ODPP to coordinate the overall reform effort; 

-                      Design and test of a new risk assessment tool and intake process to inform and systematize nationwide decision making about who is detained and who is released;

-                      Preparation of comprehensive policies and guidance and creation of important efficiencies in the ATD program allowing the enrollment of more potentially successful participants;

-                      Drafting of a new set of detention standards, currently under review, that would make conditions of confinement in its facilities less penal in the short term for more than half of the detainees;

-                      Elimination of delays associated with detainees health care by revising our Treatment Authorization Process;

-                      Development of a new Medical Classification Scheme by working with members of the Director’s Advisory Group on Health Care;

-                      Launching of an Online Detainee Locator System (ODLS); and

-                      Training of more than 40 new federal employees posted at each major detention facility.

28.              Additionally, the State mentions that the Director of ICE “issued four nationwide policies that have significantly impacted how ICE uses and prioritizes its resources consistent with reform principles”.  These policies include the Civil Immigration Enforcement Memorandum; the Parole of Arriving Aliens with A Credible Fear of Persecution; the National Fugitive Operations Program; and the Guidance Regarding the Handling of Removal Proceedings of Aliens with Pending or Approved Applications or Petitions.  The United States also underscores that “ICE is committed to providing transparency, consistency across facilities, and efficiency in the resolution of disputes”, to which end it “has continually updated its website with policy reform announcements, newly issued policy memoranda, and statistics, and has posted draft policy guidance to solicit public feedback”.  The State response asserts that DHS and ICE authorities remain fully committed to comprehensive immigration reform, and that they have held “dozens of meetings with Members of Congress, participated in more than 40 roundtable discussions and listening sessions across the United States, and met with over 1,000 different immigration stakeholders”.

29.              The considerations by the State summarized above are more general in nature.  The more specific observations to the IACHR Report will be reflected as appropriate and analyzed in the respective sections of this document.  The full text of the observations of the United States --as requested in its October 19, 2010 letter-- is available in the website of the Inter-American Commission. 

30.              The Inter-American Commission appreciates the response of the State, and the positive engagement with the inter-American system of human rights.  However, with respect to the position of the United States interpreting the nature of the American Declaration, it must be reiterated that it is indeed an instrument that generates international obligations in the framework of the OAS Charter, taking into account the IACHR´s Statute.  The IACHR has held before that for Member States that have yet to ratify the American Convention, the expression of their obligations in the sphere of human rights is set forth in the American Declaration; accordingly, such obligations have been interpreted in relation to the OAS Charter generally, and the American Declaration more specifically.  The Inter-American Commission has also explained that it may interpret and apply the pertinent provisions of the American Declaration in light of current developments in the field of international human rights law, as evidenced by treaties, custom and other relevant sources of international law.[32]  As it stated previously in a general report:

The international law of human rights is a dynamic body of norms evolving to meet the challenge of ensuring that all persons may fully exercise their fundamental rights and freedoms. In this regard, as the International Covenants elaborate on the basic principles expressed in the Universal Declaration of Human Rights, so too does the American Convention represent, in many instances, an authoritative expression of the fundamental principles set forth in the American Declaration. While the Commission clearly does not apply the American Convention in relation to member States that have yet to ratify that treaty, its provisions may well be relevant in informing an interpretation of the principles of the Declaration.[33]

31.              As for the structure of the report, Section III will present the relevant international standards on the human rights of immigrants; Section IV will contain the IACHR’s observations and concerns with regard to immigration detention, certain immigration enforcement procedures, detention conditions and the impact on due process; in section V the Inter-American Commission will make its final conclusions and recommendations as to how best to overcome the problems that the current system poses with respect to the international human rights obligations undertaken by the United States.  Throughout the report and as pertinent, the IACHR will make reference to certain particularly vulnerable groups where immigration detention is concerned, such as unaccompanied children, migrant families, those seeking asylum, persons with mental disabilities or disorders, and others.

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