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

III.      RELEVANT INTERNATIONAL STANDARDS ON THE HUMAN RIGHTS OF IMMIGRANTS

32.              The United States has an obligation to ensure the human rights of all immigrants, documented and undocumented alike; this includes the rights to personal liberty, to humane treatment, to the minimum guarantees of due process, to equality and nondiscrimination and to protection of private and family life.[34]  In its Advisory Opinion on the Juridical Condition and Rights of the Undocumented Migrants, the Inter-American Court of Human Rights (I/A Court H.R.) described the basic principles of human rights that must inform the immigration policies of the OAS member states.  Specifically, the Court wrote that States may establish mechanisms to control undocumented migrants’ entry into and departure from their territory, which must always be applied with strict regard for the guarantees of due process and respect for human dignity.^[35]  It also held that the States have the obligation to respect and to ensure respect for the human rights of all persons under their respective jurisdictions, in the light of the principle of equality and non-discrimination, irrespective of whether such persons are nationals or foreigners.[36]

A.        Right to personal liberty

33.              The American Declaration of the Rights and Duties of Man (the “American Declaration”) provides that every human being has the right to liberty and the right to protection against arbitrary arrest.[37]  Article XXV of the American Declaration states that “no person may be deprived of liberty for non-fulfillment of obligations of a purely civil character.”[38]  The American Convention on Human Rights (the “American Convention”) also provides for the right to personal liberty.[39]

34.              In general, the paramount principle where the right to personal liberty is concerned is that pre-trial detention is an exceptional measure.[40]  The IACHR will make reference to the relevant international standards developed with respect to criminal proceedings, and then introduce the specific standards that concern immigration-related detention, which is eminently civil in nature.  For cases involving criminal proceedings, the Inter-American Commission has developed the criteria that must be met in order for preventive detention (or detention pending trial) to be compatible with the right to personal liberty.  As the IACHR wrote:

The precautionary measures are established only when they are necessary for the proposed objectives. The pre-trial detention is not an exception to this rule. In compliance with the principle of exceptionality, the pre-trial detention will be appropriate when it is the only way to ensure the purposes of the process and when it has been demonstrated that less damaging measures would be unsuccessful to such purposes.  Therefore, if possible, the pre-trial detention has to be replaced for a lower severity measure.[41]

35.              Similarly, the Inter-American Commission has held that the principle of necessity that must regulate preventive detention implies that the authority that ordered the measure must sufficiently prove the reasons why the existence of indications of criminal responsibility has any bearing on the efficient course of the investigations in the case in question. It also implies establishing the reasons why it is appropriate to impose preventive detention rather than a less severe measure.[42]  This determination must be made on a case-by-case basis.

36.              In the universal human rights system, Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR), ratified by the United States, reads as follows:  “Everyone has the right to liberty and security of person.  No one shall be subjected to arbitrary arrest or detention.”[43]  The United Nations Human Rights Committee, which oversees the Covenant’s implementation, observes that “the notion of "arbitrariness" must not be equated with "against the law" but be interpreted more broadly to include such elements as inappropriateness and injustice.”[44] 

37.              The Human Rights Committee has also held that “remand in custody could be considered 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 (…).”[45]  Thus, the determination as to whether detention is an appropriate measure must be done on the basis of a case-by-case analysis; a State has to consider all the less invasive or intrusive ways of accomplishing its objective before detention can be admissible.[46]  Article 9(1) also requires that the State periodically revisit the decision to keep a person in custody to determine whether it still has sufficient grounds to justify the detention.[47]  The Human Rights Committee suggests two possible grounds for continuing pre-trial detention: if the person refuses to cooperate with the investigation or there is a likelihood of flight.[48]

38.              In the case of immigration detention, the standard for the exceptionality of pre-trial detention must be even higher because immigration violations ought not to be construed as criminal offenses.  The United Nations Special Rapporteur on the Human Rights of Migrant Workers wrote, “Irregular migrants are not criminals per se and should not be treated as such.”[49] 

39.              In effect, to be in compliance with the guarantees protected in Articles I and XXV of the American Declaration, member States must enact immigration laws and establish immigration policies that are premised on a presumption of liberty --the right of the immigrant to remain at liberty while his or her immigration proceedings are pending-- and not on a presumption of detention.[50]  Detention is only permissible when a case-specific evaluation concludes that the measure is essential in order to serve a legitimate interest of the State and to ensure that the subject reports for the proceeding to determine his or her immigration status and possible removal.[51]  The argument that the person in question poses a threat to public safety is only acceptable in exceptional circumstances in which there are certain indicia of the risk that the person represents.  The existence of a criminal record is not sufficient to justify the detention of an immigrant once he or she has served his or her criminal sentence.  Whatever the case, the particular reasons why the immigrant is considered to pose a risk have to be explained.  The arguments in support of the appropriateness of detention must be set out clearly in the corresponding decision.[52]

40.              The IACHR also underscores the fact that the detention review procedures must respect the guarantees of due process, including the defendant’s right to an impartial hearing in decisions that affect his or her fate, his or her right to present evidence and refute the State’s arguments, and the opportunity to be represented by counsel.[53]

41.              Furthermore, since the State’s use of immigration detention must be premised on a presumption of the right to personal liberty, then alternatives to detention programs (such as GPS monitoring), bond or release should also be regarded as a reasonable measure that is proportional to the legitimate end that the State seeks to achieve.

42.              Specifically, in the case of immigrants the Human Rights Committee observed that illegal entry by itself would not justify detention for a period.[54]  For its part, the United Nations Working Group on Arbitrary Detention has also summarized the basic requirements for detention of immigrants to be permissible:

It was felt that States should be reminded that detention shall be the last resort and permissible only for the shortest period of time and that alternatives to detention should be sought whenever possible. Grounds 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. Established time limits for judicial review must even stand in “emergency situations” when an exceptionally large number of undocumented immigrants enter the territory of a State. Provisions should always be made to render detention unlawful if the obstacle for identifying immigrants in an irregular situation or carrying out removal from the territory does not lie within their sphere, for example, when the consular representation of the country of origin does not cooperate or legal considerations - such as the principle of non-refoulement barring removal if there is a risk of torture or arbitrary detention in the country of destination - or factual obstacles - such as the unavailability of means of transportation - render expulsion impossible.[55]

43.              Apart from the basic right to personal liberty that all immigrants enjoy, various international instruments have established specific restrictions regarding the detention of certain persons who are members of more vulnerable groups.  The IACHR will now summarize the specific international standards on the right to personal liberty with respect to some of these groups.

1.         Asylum seekers

44.              The 1951 Convention relating to the Status of Refugees (hereinafter “the Convention on Refugees”) allows very little margin for restrictions on freedom of movement.[56]  Article 31 of the Convention on Refugees reads as follows:

1.         The Contracting States 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 in the sense of article 1, 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.

2.         The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.[57] 

45.              When interpreting the Convention on Refugees, the Office of the United Nations High Commissioner for Refugees (hereinafter the “UNHCR”) concluded that “[a]s a general principle asylum-seekers should not be detained” and that “[t]here should be a presumption against detention.”^[58]  The UNHCR underscores the fact that under Article 31, “detention should only be resorted to in cases of necessity.”^[59]  As the UNHCR wrote, detention of asylum seekers may be resorted to only on grounds prescribed by law, 

to verify identity; to determine the elements on which the claim to refugee status or asylum is based; to deal with 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 to protect national security or public order.^[60] 

46.              The UNHCR concludes that “[d]etention should therefore only take place after a full consideration of all possible alternatives (…)”^[61]. 

47.              In those cases in which an asylum seeker’s detention is deemed necessary, the UNHCR has established that such detention “should not constitute an obstacle to an asylum-seekers’ possibilities to pursue their asylum application.”  It has also observed that the following minimal procedural guarantees must be observed:

(i)                  to receive prompt and full communication of any order of detention, together with the reasons for the order, and their rights in connection with the order, in a language and in terms which they understand;

(ii)                to be informed of the right to legal counsel. Where possible, they should receive free legal assistance;

(iii)               to have the decision subjected to an automatic review before a judicial or administrative body independent of the detaining authorities. This should be followed by regular periodic reviews of the necessity for the continuation of detention, which the asylum-seeker or his representative would have the right to attend;

(iv)              either personally or through a representative, to challenge the necessity of the deprivation of liberty at the review hearing, and to rebut any findings made. Such a right should extend to all aspects of the case and not simply the executive discretion to detain;

v)                  to contact and be contacted by the local UNHCR Office, available national refugee bodies or other agencies and an advocate. The right to communicate with these representatives in private, and the means to make such contact should be made available.[62]

48.              The Inter-American Commission has observed that in cases in which asylum seekers are detained, “the longer detention as a preventive measure continues, the greater the resulting burden on the rights of the person deprived of liberty.”[63]

2.         Migrant families and unaccompanied children

49.              Under Article V of the American Declaration, “[e]very person has the right to the protection of the law against abusive attacks upon his…private and family life.”  Under Article VII, “[a]ll women, during pregnancy and the nursing period, and all children have the right to special protection, care and aid.”  The need to guarantee these rights has a direct bearing on the appropriateness of detaining migrant families and children.  Given the provisions of Articles V and VII, mandatory detention of a child’s mother or father must be considered on a case-by-case basis, analyzing whether the measure is proportional to the end the State seeks to achieve and taking the best interests of the child into account.[64]

50.              Given the intrinsic protection of family life recognized in Articles V, VI and VII of the American Declaration, it is possible to conclude that families and pregnant women who seek asylum ought not to be detained; and if they are detained, they ought not to be subjected to prison-like conditions.[65]

51.              Under international standards, unaccompanied minors ought not to be detained either.  In its Advisory Opinion on the Juridical Condition and Human Rights of the Child, the Inter-American Court adopted the principle of the “best interests of the child,”  established in the United Nations Convention on the Rights of the Child as the primary consideration when a member State is contemplating a measure that might affect minors under its jurisdiction.[66]  The principle of exceptionality governing deprivation of liberty in general and deprivation of liberty for immigration violations, carries even more weight when children are involved.  Only in the most extreme cases could such a measure be justified.

52.              Article 37(b) of that Convention, which the United States signed but is not party to,[67]  provides that “[t]he arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.”[68]

53.              The United Nations Special Rapporteur on the Human Rights of Migrant Workers observes that in the unusual case where children must be detained, 

… detention of children is permitted only as a measure of last resort and only when it is in the best interest of the child, for the shortest appropriate period of time and in conditions that ensure the realization of the rights enshrined in the Convention on the Rights of the Child … Children under administrative custodial measures should be separated from adults, unless they can be housed with relatives in separate settings … Should the age of the migrant be in dispute, the most favourable treatment should be accorded until it is determined whether he/she is a minor.[69] 

54.              In the “Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers,” the UNHCR concludes that “minors who are asylum-seekers should not be detained.”[70]  If, for some extraordinary reason children are detained, they ought not to be held in prison-like conditions.[71]

55.              The UNHCR also concluded that unaccompanied children who are detained should benefit from the same minimum procedural guarantees of due process that asylum seekers enjoy and a legal guardian or adviser should be appointed for them.[72]

B.        Right to due process and access to justice

56.              Under Article XXVI of the American Declaration, “[e]very person accused of an offense has the right to be given an impartial and public hearing….” [73]  The IACHR has maintained that Article XXVI also applies to immigration proceedings.  As the Inter-American Commission wrote: “to deny an alleged victim the protection afforded by Article XXVI simply by virtue of the nature of immigration proceedings would contradict the very object of this provision and its purpose to scrutinize the proceedings under which the rights, freedoms and well-being of the persons under the State’s jurisdiction are established.”[74]

57.              Article 8 of the American Convention reaffirms the rights recognized in Article XXVI of the American Declaration.[75]  During any proceeding that can result in a penalty of any kind, all persons are equally entitled to the following minimum guarantees:  the right to a hearing, with due guarantees and within a reasonable time by a competent, independent, and impartial tribunal; prior notification in detail to the accused of the charges against him; the right not to be compelled to be a witness against oneself or to plead guilty; the right of the accused to be assisted without charge by a translator or interpreter;  the right of the accused to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel; the right of the defense to examine witnesses present in the court and to obtain their appearance as witnesses, experts or other persons who may throw light on the facts; and the right to appeal the judgment to a higher court.[76]  While many of these guarantees are articulated in a language that is more germane to criminal proceedings, they must be strictly enforced in immigration proceedings as well, given the circumstances of such proceedings and their consequences.

58.              The IACHR has observed that the due process rights set forth in Article 8 of the American Convention “establish a baseline of due process to which all immigrants, whatever their situation, have a right.”[77]  Immigrants are at a real disadvantage that can adversely affect due process unless special countervailing measures are taken to reduce or eliminate the procedural handicaps with which immigrants are encumbered.

59.              In its Advisory Opinion on the “Juridical Condition and Rights of the Undocumented Migrants” the Inter-American Court highlighted the following:

[…] for “the due process of law” a defendant must be able to exercise his rights and defend his interests effectively and in full procedural equality with other defendants…. To accomplish its objectives, the judicial process must recognize and correct any real disadvantages that those brought before the bar might have, thus observing the principle of equality before the law and the courts and the corollary principle prohibiting discrimination.  The presence of real disadvantages necessitates countervailing measures that help to reduce or eliminate the obstacles and deficiencies that impair or diminish an effective defense of one’s interests.  Absent those countervailing measures, widely recognized in various stages of the proceeding, one could hardly say that those who have the disadvantages enjoy a true opportunity for justice and the benefit of the due process of law equal to those who do not have those disadvantages.[78] 

1.         Right to judicial protection and to a habeas corpus petition

60.              The United Nations Working Group on Arbitrary Detention concluded that “where people have been detained, expelled or returned without being provided with legal guarantees, their continued detention and subsequent expulsion are to be considered as arbitrary.”[79]   The United Nations Special Rapporteur on the Human Rights of Migrant Workers has urged the States to avoid the use of detention facilities and of legal mechanisms and methods of interception and/or deportation that curtail judicial control of the lawfulness of the detention and other rights, such as the right to seek asylum.[80]

61.              Article XVIII of the American Declaration provides that “[e]very person may resort to the courts to ensure respect for his legal rights.  There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.”  Similarly, Article XXV provides that “[e]very individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court ….”

62.              The Inter-American Court has held that “writs of habeas corpus and of amparo are among those judicial remedies that are essential for the protection of various rights whose derogation is prohibited by [the American Convention] and that serve, moreover, to preserve legality in a democratic society.”[81]  In the case of Rafael Ferrer-Mazorra and in light of the rights protected under the American Declaration, the Inter-American Commission emphasizes the fact that access must be provided to a judicial review of the detention, “as it provides effective assurances that the detainee is not exclusively at the mercy of the detaining authority.”[82]   

2.         Right to seek asylum

63.              Article XXVII of the American Declaration provides that “every person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements.”[83]  In order to comply with Article XXVII, the domestic procedures by which a refugee seeks asylum must be adequate and effective.[84]  The adequacy of the internal procedures not only involves the formal rights of due process in immigration proceedings, but also the effects that detention can have on the asylum seeker’s guarantees of due process.

C.        The right to humane treatment during detention

64.              Thus far, the IACHR has established that immigration detention must be the exception and must be applied in conformity with certain requirements.  The Inter-American Commission has also underscored the relevant guarantees of due process and access to justice.  In this section, the IACHR will focus on the detention conditions that must be present in those exceptional cases in which deprivation of liberty is necessary, taking into consideration general criteria regarding humane treatment as well as those special guarantees that must be afforded to ensure that immigration detentions, which are civil in nature, do not become punitive.

65.              Under Article XXV of the American Declaration, every person who has been deprived of his liberty “has the right to humane treatment during the time he is in custody.”  In interpreting the rights protected in the Article XXV clause that concerns the right to humane treatment, and the right to the security of one’s person protected under Article I of the American Declaration, the Inter-American Commission has made frequent reference to the United Nations Minimum Rules for the Treatment of Prisoners and to the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.[85]  Recently, the IACHR approved its own set of “Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas” (hereinafter the “Inter-American Principles on Detention”), which explain the protections afforded under Article XXV of the American Declaration.[86] 

66.              Principle II of the Inter-American Principles on Detention states that “[u]nder no circumstances shall persons deprived of liberty be discriminated against for reasons of race, ethnic origin, nationality, color, sex, age, language, religion, political or other opinion, national or social origin, economic status, birth, physical, mental, or sensory disability, gender, sexual orientation, or any other social condition.”[87]  That same principle provides that measures can and must be taken to protect vulnerable groups, such as pregnant women, persons with physical, mental or sensory disabilities, and that these measures shall be “subject to review by a judge or other competent, independent, and impartial authority.”[88]

67.              The Inter-American Principles on Detention offer specific guidelines on basic provisions –such as the rights to food, drinking water, sleeping quarters, hygiene, clothing and educational activities, recreation, religious freedom and visits- so as to ensure that all persons held in the custody of a state receive humane treatment.[89]  The Inter-American Principles on Detention prohibit overcrowding in prisons and detention facilities, which is regarded as a violation of Article 5 of the American Convention.[90]

68.              The ICCPR also establishes general prohibitions against incarceration in inhumane conditions.  Article 7 reads as follows:  “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment…”   Article 10(1) of the Covenant similarly provides that “[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”  As to the legal implications that ICCPR Article 10 has for undocumented migrants, the United Nations Special Rapporteur on the Human Rights of Migrant Workers underscored the fact that “detention of migrants on the grounds of their irregular status should under no circumstances be of a punitive nature.”[91]

69.              When determining whether the obligation to provide humane treatment has been observed, consideration must be given to the question of whether the conditions of detention to which immigrants deprived of their liberty are subjected take into account their status and needs.[92]  For example, in C v. Australia, the Human Rights Committee concluded that Article 7 had been violated because a person seeking asylum had been detained for such a prolonged period as to cause him mental illness.[93]

70.              The next sections describe the specific rights that follow from the obligation to provide humane treatment.  Where necessary, the special needs of immigrants are explained.

1.         Right to medical care

71.              In keeping with the legal obligations regarding humane treatment prescribed in Article XXV of the American Declaration, Principle IX(3) of the Inter-American Principles on Detention provides that:

All persons deprived of liberty shall be entitled to an impartial and confidential medical or psychological examination, carried out by qualified medical personnel immediately following their admission to the place of imprisonment or commitment, in order to verify their state of physical or mental health and the existence of any mental or physical injury or damage; to ensure the diagnosis and treatment of any relevant health problem; or to investigate complaints of possible ill-treatment or torture.

The medical or psychological information shall be entered into the respective official register, and when necessary taking into account the gravity of the findings, it shall be immediately transmitted to the competent authority

94]

72.              Principle X sets out guidelines on the range of medical, psychiatric and dental services to which immigration detainees should have access, from basic care to prolonged, ongoing treatment in the case of the most serious afflictions.[95]  Under Principle X, special measures are to be provided to treat the health needs of vulnerable groups like the elderly, women, children and detainees with physical or mental disabilities.[96]  This Principle establishes that “the provision of health services shall, in all circumstances, respect the following principles: medical confidentiality; patient autonomy; and informed consent to medical treatment in the physician-patient relationship.”[97]
 

73.              The Inter-American Principles also spell out specific requirements on involuntary seclusion and solitary confinement in the case of persons with mental disabilities:

In cases of involuntary seclusion of persons with mental disabilities it shall be ensured that the measure is authorized by a competent physician; carried out in accordance with officially approved procedures; recorded in the patient’s individual medical record; and immediately notified to their family or legal representatives. Persons with mental disabilities who are secluded shall be under the care and supervision of qualified medical personnel.[98]

74.              The United Nations Committee on Economic, Social and Cultural Rights, the body that supervises the International Covenant on Economic, Social and Cultural Rights (ICESCR), which the United States has signed, has reiterated that detainees must have equal and nondiscriminatory access to medical care and attention:

States are under the obligation to respect the right to health by, inter alia, refraining from denying or limiting equal access for all persons, including prisoners or detainees, minorities, asylum seekers and illegal immigrants, to preventive, curative and palliative health services; abstaining from enforcing discriminatory practices as a State policy; and abstaining from imposing discriminatory practices relating to women's health status and needs.[99]    

75.              When examining the specific medical needs of immigration detainees, the United Nations Special Rapporteur on the Human Rights of Migrant Workers recommended the following to the States:

Ensuring the presence in holding centres of a doctor with appropriate training in psychological treatments. Migrants should have the possibility of being assisted by interpreters in their contacts with doctors or when requesting medical attention. Detention of migrants with psychological problems, as well as those belonging to vulnerable categories and in need of special assistance, should be only allowed as a measure of last resort, and they should be provided with adequate medical and psychological assistance.[100]

2.         Right to be separated from criminal inmates

76.              In keeping with the legal obligations on humane treatment set forth in Article XXV of the American Declaration, Principle XIX of the Inter-American Principles on Detention requires strict separation of the various categories of persons deprived of their liberty:

In particular, arrangements shall be made to separate men and women; children and adults; the elderly; accused and convicted; persons deprived of liberty for civil reasons and those deprived of liberty on criminal charges. In cases of deprivation of liberty of asylum or refugee status seekers, and in other similar cases, children shall not be separated from their parents. Asylum or refugee status seekers and persons deprived of liberty due to migration issues shall not be deprived of liberty in institutions designed to hold persons deprived of liberty on criminal charges.[101]  

77.              The United Nations Special Rapporteur on the Human Rights of Migrant Workers recommends “ensuring that migrants under administrative detention are placed in a public establishment specifically intended for that purpose or, when this is not possible, in premises other than those intended for persons imprisoned under criminal law.”[102]

3.         Right to be notified of transfer to other detention establishments

78.              In keeping with the legal obligations on humane treatment set forth in Article XXV of the American Declaration, Principle IX(4) of the Inter-American Principles on Detention spells out safeguards to ensure that:

The transfers of persons deprived of liberty shall be authorized and supervised by the competent authorities, who shall, in all circumstances, respect the dignity and fundamental rights of persons deprived of liberty, and shall take into account the need of persons to be deprived of liberty in places near their family, community, their defense counsel or legal representative, and the tribunal or other State body that may be in charge of their case.

The transfers shall not be carried out in order to punish, repress, or discriminate against persons deprived of liberty, their families or representatives; nor shall they be conducted under conditions that cause physical or mental suffering, are humiliating or facilitate public exhibition.[103]

79.              Under the UN Body of Principles, an immigrant in custody and transferred to another facility “shall be entitled to notify or to require the competent authority to notify members of his family or other appropriate persons of his choice of his (…) transfer and of the place where he is kept”[104] and “shall also be promptly informed of his right to communicate by appropriate means with a consular post or diplomatic mission of the State of which he is a national (…).”[105]

80.              When transfer is ordered, special consideration is to be given to the impact that transfer will have on the right to protection of the family and the right to due process.  When an immigrant has been in a country for some time, he or she should be held in custody in a place close to his or her habitual place of residence, in order to safeguard those rights.  Article VI of the American Declaration provides that “every person has the right to establish a family, the basic element of society, and to receive protection therefore.”  The Inter-American Commission has written that “[i]t is a right so basic to the Convention that it is considered to be non-derogable even in extreme circumstances.”[106]  The IACHR has repeatedly held that “visiting rights are a fundamental requirement for ensuring respect of the personal integrity and freedom of the inmate and, as a corollary, the right to protection of the family for all the affected parties (…)[and that] because of the exceptional circumstances of imprisonment, the state must establish positive provisions to effectively guarantee the right to maintain and develop family relations.”[107] 

81.              Apart from the right to family, the location of the detention facility can frequently affect an immigrant’s due process rights, including his or her right to be represented by an attorney.  Only under exceptional circumstances should immigrants in custody who have secured legal representation be transferred outside the jurisdiction in which they were apprehended; it is the government’s responsibility to demonstrate to an independent court the need to transfer the immigrant in custody.  Moreover, the State must ensure that the transfers are based on objective grounds and answer objective needs.  Specifically, it is impermissible for immigration detainees to be transferred to a jurisdiction that would be more likely to issue an order of removal.

4.         Right to have duly trained and qualified personnel and independent supervision at the
                        place of detention

82.              Principle XX of the Inter-American Principles on Detention establish guidelines regarding the training required for personnel working in and supervising places of detention or imprisonment.[108]  Principle 29 of the United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides that “places of detention shall be visited regularly by qualified and experienced persons appointed by, and responsible to, a competent authority distinct from the authority directly in charge of the administration of the place of detention or imprisonment.”

83.              In particular, immigrants that have to be detained must be accommodated in facilities in which the officials who have custody have been given the proper training in:

psychological aspects relating to detention, cultural sensitivity and human rights procedures, and ensuring that centres for the administrative detention of migrants are not run by private companies or staffed by private personnel unless they are adequately trained and the centres are subject to regular public supervision to ensure the application of international and national human rights law.[109]

5.         Right to an established disciplinary policy and to due process

84.              Principle XXII of the Inter-American Principles on Detention provides that: “disciplinary sanctions, and the disciplinary procedures adopted in places of deprivation of liberty shall be subject to judicial review and be previously established by law and shall not contravene the norms of international human rights law.”  Principle 30  of the United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides that: 

85.              The Inter-American Principles on Detention set out strict guidelines on the use of confinement or isolation measures:

Solitary confinement shall only be permitted as a disposition of last resort and for a strictly limited time, when it is evident that it is necessary to ensure legitimate interests relating to the institution’s internal security, and to protect fundamental rights, such as the right to life and integrity of persons deprived of liberty or the personnel.

In all cases, the disposition of solitary confinement shall be authorized by the competent authority and shall be subject to judicial control, since its prolonged, inappropriate or unnecessary use would amount to acts of torture, or cruel, inhuman, or degrading treatment or punishment.[111]

86.              Finally, any bodily searches or inspections “shall comply with criteria of necessity, reasonableness and proportionality.”[112]

6.         The right to an effective procedure for petition and response

87.              Principle VII of the Inter-American Principles on Detention reads as follows:

Persons deprived of liberty shall have the right of individual and collective petition and the right to a response before judicial, administrative, or other authorities. This right may be exercised by third parties or organizations, in accordance with the law.

This right comprises, amongst others, the right to lodge petitions, claims, or complaints before the competent authorities, and to receive a prompt response within a reasonable time. It also comprises the right to opportunely request and receive information concerning their procedural status and the remaining time of deprivation of liberty, if applicable.

Persons deprived of liberty shall also have the right to lodge communications, petitions or complaints with the national human rights institutions; with the Inter-American Commission on Human Rights; and with the other competent international bodies, in conformity with the requirements established by domestic law and international law.[113]

88.              The United Nations Special Rapporteur on the Human Rights of Migrant Workers underscores the point that immigration detainees must be assured effective access to judicial recourse in the event that the petition mechanism fails to correct any violation of the right to humane treatment.[114] 

7.         Obligation to investigate deaths that occur during detention

89.              Principle XXIII(3) of the Inter-American Principles on Detention reads as follows:

Member States of the Organization of American States shall carry out serious, exhaustive, impartial, and prompt investigations in relation to all acts of violence or situations of emergency that have occurred in places of deprivation of liberty, with a view to uncovering the causes, identifying those responsible, and imposing the corresponding punishments on them.

States shall take appropriate measures and make every effort possible to prevent the recurrence of acts of violence or situations of emergency in places of deprivation of liberty.

90.              Principle 34 of the United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment states that: 

Whenever the death or disappearance of a detained or imprisoned person occurs during his detention or imprisonment, an inquiry into the cause of death or disappearance shall be held by a judicial or other authority, either on its own motion or at the instance of a member of the family of such a person or any person who has knowledge of the case. When circumstances so warrant, such an inquiry shall be held on the same procedural basis whenever the death or disappearance occurs shortly after the termination of the detention or imprisonment. The findings of such inquiry or a report thereon shall be made available upon request, unless doing so would jeopardize an ongoing criminal investigation. 

8.         Specific rights of asylum seekers in detention

91.              The right to seek asylum is internationally recognized, as are the special risks and threats that might be entailed.  Therefore, the UNHCR has established additional guidelines to govern the treatment of asylum seekers in the event they are taken into custody.  The UNHCR notes that the general principles of humane treatment apply with equal force to asylum seekers,[115] but emphasizes that they also need to be afforded certain protections specific to their condition:

(i)         the initial screening of all asylum-seekers at the outset of detention to identify trauma or torture victims, for treatment in accordance with Guideline 7.

(ii)        the segregation within facilities of men and women; children from adults (unless these are relatives);

(iii)       the use of separate detention facilities to accommodate asylum-seekers. The use of prisons should be avoided. If separate detention facilities are not used, asylum-seekers should be accommodated separately from convicted criminals or prisoners on remand. There should be no co-mingling of the two groups;

(iv)       the opportunity to make regular contact and receive visits from friends, relatives, religious, social and legal counsel. Facilities should be made available to enable such visits. Where possible such visits should take place in private unless there are compelling reasons to warrant the contrary;

(v)        the opportunity to receive appropriate medical treatment, and psychological counseling where appropriate;

(vi)       the opportunity to conduct some form of physical exercise through daily indoor and outdoor recreational activities;

(vii)      the opportunity to continue further education or vocational training;

(viii)      the opportunity to exercise their religion and to receive a diet in keeping with their religion;

(ix)       the opportunity to have access to basic necessities i.e. beds, shower facilities, basic toiletries etc.;

(x)        access to a complaints mechanism, (grievance procedures) where complaints may be submitted either directly or confidentially to the detaining authority. Procedures for lodging complaints, including time limits and appeal procedures, should be displayed and made available to detainees in different languages.[116]

9.         Adherence to UN Principles for the detention of unaccompanied children

92.              Article VII of the American Declaration recognizes every child’s right to “special protection, care and aid.”  Inasmuch as the rights of the child and his or her particular vulnerability are internationally recognized, the United Nations Special Rapporteur on the Human Rights of Migrant Workers has advised States to adhere strictly to the United Nations Rules for the Protection of Juveniles Deprived of their Liberty and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice.[117]

93.              Article 37(d) of the United Nations Convention on the Rights of the Child provides that “[e]very child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.”

D.        Other relevant human rights

1.         The principle of equality and nondiscrimination

94.              Article II of the American Declaration provides that “all persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor.”  For enforcement of immigration laws, it is widely accepted that “States may … establish mechanisms to control the entry into and departure from their territory of undocumented migrants…”[118]  However, international human rights norms require that immigration laws be enforced without any discrimination.  In this regard, the Inter-American Court has stated the following:

States must abstain from carrying out any action that, in any way, directly or indirectly, is aimed at creating situations of de jure or de facto discrimination.  This translates, for example, into the prohibition to enact laws, in the broadest sense, formulate civil, administrative or any other measures, or encourage acts or practices of their officials, in implementation or interpretation of the law that discriminate against a specific group of persons because of their race, gender, color or other reasons.

In addition, States are obliged to take affirmative action to reverse or change discriminatory situations that exist in their societies to the detriment of a specific group of persons.  This implies the special obligation to protect that the State must exercise with regard to acts and practices of third parties who, with its tolerance or acquiescence, create, maintain or promote discriminatory situations.[119]

95.              In the enforcement of immigration laws, the basic right to equal protection before the law and non-discrimination requires that States ensure that their immigration law enforcement policies and practices do not unfairly target certain persons based solely on ethnic or racial characteristics, such as skin color, accent, ethnicity, or a residential area known to be populated by a particular ethnic group.  Furthermore, international human rights law not only prohibits policies and practices that are deliberately discriminatory in nature, but also those whose effect is to discriminate against a certain category of persons, even when discriminatory intent cannot be shown.

2.         Rights to family life, to privacy and to the inviolability of the home

96.              Article V of the American Declaration provides that “[e]very person has the right to the protection of the law against abusive attacks upon his honor, his reputation, and his private and family life.”  Under Article IX, “[e]very person has the right to the inviolability of his home.”

97.              The IACHR has highlighted the fact that the principal objective of these rights is to “protect individuals from arbitrary action by State authorities which infringes in the private sphere (...) The guarantee against arbitrariness is intended to ensure that any such regulation (or other action) comports with the norms and objectives of the Convention, and is reasonable under the circumstances.”[120] “The notion of ‘arbitrary interference’ refers to elements of injustice, unpredictability and unreasonableness.”[121]  Thus, international human rights law protects home and family life from unnecessary intrusion by the State.   

98.              These rights have important implications for permissible immigration enforcement.  First, the State must not enforce immigration laws in the home, unless it has probable cause, based on reliable information, of the location of an individual, the risk to the community is great and all other enforcement alternatives against the person have been considered.  Second, if an immigrant parent, whether documented or undocumented, is detained for immigration violations, under no circumstances can the parent’s detention be used as a factor for permanently losing legal custody of his or her children.  Finally, the best interests of a migrant parent’s children must be factored into any removal decision, and if ordered removed the parent must receive adequate due process to make custody determinations regarding his or her U.S. citizen children before removal is executed.

[76] American Convention, Article 8; see also, ICCPR, Article 14; United Nations, Body of Principles for the Protection 

of All Persons  under Any Form of Detention or Imprisonment, Principles 10-18 (1988), 

available at http://www.un.org/documents/ga/res/43/a43r173.htm.