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

IV.     THE INTER-AMERICAN COMMISSION’S OBSERVATIONS AND CONCERNS REGARDING IMMIGRATION DETENTION, DETENTION CONDITIONS AND THE EFFECT ON DUE PROCESS 

            A.        Detentions and immigration enforcement in the United States

1.         General issues

99.              Noncitizens in U.S. immigration detention fall into two broad categories: noncitizens detained at the border or a port of entry; and those apprehended in the interior of the United States.  At a border or port of entry, any person who cannot prove United States citizenship, valid LPR status, or possession of a valid visa to the satisfaction of an immigration officer, may end up in immigration detention if found to be “inadmissible” to the U.S.[122]  Similarly, noncitizens apprehended in the interior, who entered the United States unlawfully, LPRs or US citizens who cannot prove their status, or noncitizens who violated immigration laws after entry thereby becoming “removable” (or “deportable”), may also be detained.[123]  Summarizing, undocumented migrants, noncitizens with visas, LPRs and, on occasion, even U.S. citizens can end up in immigration detention.[124]

100.          Immigration officers from Immigration and Customs Enforcement (ICE)[125] and Customs and Border Protection (CBP)[126] are authorized to detain noncitizens whom they believe are inadmissible or deportable.  The main authority for the detention of noncitizens is found at Immigration and Nationality Act (“INA”) §§ 235 and 236, which concern persons subject to removal proceedings,[127] and § 241 on cases in which a final removal order has been issued.[128] 

101.          As will be apparent throughout this section, the IACHR’s primary concerns have to do with the enforcement of this set of provisions.  In practice, they have meant that the United States resorts to immigration detention with increasing frequency, even though in many cases the detention is neither necessary nor appropriate under international norms on the right to personal liberty.  In effect, ICE detention of noncitizens has almost doubled in the last ten years, from some 209,000 in FY2001, to 378,582 in FY2008.[129]

102.          The information compiled by the Inter-American Commission indicates that immigration detention in the United States is the rule rather than the exception, and that the chances of obtaining one’s release are few.  Although in general terms reference is made to the necessity of ensuring that a person subject to an immigration proceeding reports for the proceeding or the necessity of protecting public safety, in individual cases involving persons subject to immigration detention,  where standards of necessity and proportionality should be applied, these considerations are not weighed.

103.          The length of the detentions is also troubling.  While the DHS has reported that the average period of detention has dropped to around 30 days,[130] indicating that individuals that fight their case are detained for significantly longer periods, and that the period of detention may  soon likely increase because of the backlog in the immigration courts.[131]

104.          Furthermore, the IACHR noted that vulnerable groups figure prominently among those being held in immigration detention.  For example, the DHS estimates that approximately 1400 noncriminal asylum-seekers are detained daily in the United States.[132] The generalized use of detention in the case of asylum-seekers does not comport with the right to personal liberty.  Persons suffering from mental disabilities can also be found among those being held in detention.  The Division of Immigrant Health Services (DIHS) estimates that anywhere from 2% to 5% of the detained immigrants suffer from some serious and persistent mental illness, and as many as 16% may have required mental health services.[133] In the pertinent section of this report, the problems with the health services provided to immigration detainees will be discussed.  Although significant improvements have been made with immigrant-family detention, ICE still detains families in the Berks facilities in Pennsylvania.  Compounding the problem are the older adults and unaccompanied children who are inappropriately placed in secure  facilities.  The Inter-American Commission must stress the fact that detention has debilitating physical and psychological effects, particularly on these vulnerable groups.[134]

105.          In general, the IACHR is struck by the significant harm that the indefinite nature of immigration detention causes on those detained.  A number of the detainees told the Inter-American Commission that one of the most difficult aspects of detention was the uncertainty as to when it might end, and the status of their cases.[135]

106.          The IACHR will now turn its attention to the laws, procedures and concerns, first on the matter of detentions at the border or port of entry or near either of them, second on persons detained in the country’s interior, and third on the situation of persons subject to indefinite detention.

2.         Noncitizens detained at the border, port of entry or nearby

107.          The Inter-American Commission cannot fail to mention the disturbing reports it has received concerning the effects of certain immigration border control measures.  In particular, information has been presented about such extreme measures as a wall, hundreds of miles in length, along the border between the United States and Mexico, which has been under construction since 2006 and has taken a toll on the human rights of immigrants.[136]  One of the most harmful effects of the physical barriers erected along the border is that their deterrent effect is temporary, as they merely steer immigrants in the direction of those border areas where no physical barriers have been erected and where conditions tend to be so extreme as to make the crossing highly dangerous.  Summing up, this type of measure increases the death rate among undocumented migrants, as various organizations have confirmed.[137]  More serious still are the reports of immigrants killed as they attempted to cross the border by immigration agents who resorted to an excessive and disproportionate use of force.[138]

108.          Although an in-depth analysis of these issues is outside the scope of this report, the IACHR must point to the terrible effects of certain immigration policies along the border and to the abuses and excesses committed by officers charged with enforcing the law.  The Inter-American Commission will continue to pay close attention to this situation.

a.         Expedited removal

109.          Noncitizens subject to expedited removal are detained under INA § 235 while an immigration officer decides, without any review by an independent judge or court, whether they will be immediately deported.[139]  Of all those removed in FY2008, some 32% were subjected to expedited removal.[140]

110.          Expedited removal is a summary proceeding conducted by immigration officers,[141] with no judicial review.  It accelerates the removal of inadmissible noncitizens[142] and is applied in cases of noncitizens who do not have the appropriate documents[143] or are in possession of fraudulent documents[144] when they arrive at the border, when they are questioned near the border shortly after entering the United States, or when they arrive at an airport or maritime port (ports of entry).[145]

111.          Between April 1997 and November 2002, expedited removal was applied only in the case of noncitizens arriving at airports or land border crossings.[146]  Since then, ICE has expanded application of expedited removal to noncitizens arriving and entering by sea and those who are encountered by an immigration officer within 100 air miles of the land borders with Canada and Mexico (approximately 115 land miles) and are unable to prove to the satisfaction of the immigration officer that they have been in the United States continuously for more than 14 days.[147]  So, for example, it applies to noncitizens who are able to cross the border without being inspected or admitted by an immigration officer, but are then caught at ICE vehicle checkpoints, on buses or trains that ICE agents search, or when CBP agents finds them walking away from the border.[148]

112.          Those arriving on valid visas, but who indicate a fear of returning home or an intent to seek asylum, may also be subjected to expedited removal proceedings because their desire to seek permanent refuge is deemed to invalidate their temporary visas, leaving them in the same category as those who do not have proper documents.[149]  According to the 2005 Bi-partisan U.S. Commission on International Religious Freedom (“USCIRF”) Report on Asylum Seekers in Expedited Removal,[150] of the 353 asylum seekers’ files reviewed, 18 had facially valid documents that were invalidated because they expressed an intention to seek asylum.[151]

113.          If a noncitizen “indicates either an intention to apply for asylum…or a fear of persecution,” he or she will be referred to an asylum officer for a “credible fear interview.”[152]  By statute, the asylum seeker must remain detained while awaiting a credible fear interview and its results.[153]  The Bi-partisan USCIRF report indicates that the typical waiting period to receive a “credible fear” interview is 2-14 days, but immigration attorneys say that the wait can be up to a month or longer.[154]  The period spent waiting for the results of the “credible fear” interview lengthens the process, especially in those ICE regional offices that have a substantial backlog of asylum applications.  Throughout the “credible fear” screening process, an asylum seeker remains subject to expedited removal and thus mandatory detention, without any possibility of release.[155]

114.          Asylum seekers who pass the credible fear interview and are allowed to pursue asylum, leave the expedited removal process and are placed into normal deportation proceedings, which are adjudicated by an immigration judge.[156]  An asylum seeker who does not pass his credible fear interview may appeal DHS’s decision to an immigration judge, who is required to hear the appeal within a week.[157]  Those who do not pass the “credible fear” screening process remain under expedited removal and will remain in custody until they are removed.[158]

115.          Some statistics on asylum seekers appear in the 2005 Bi-partisan U.S. Commission on International Religious Freedom (“USCIRF”) Report on Asylum Seekers in Expedited Removal, which found that in 50% of the expedited removal interviews immigration officers failed to inform the noncitizen that he or she may seek asylum if he or she is in fear of returning home; in 72% of the cases, asylum-seekers sign their written statement in the presence of an immigration officer without having the opportunity to review it or have it interpreted to them; and 15% of the cases observed were not referred for a “credible fear” interview, despite the fact that the applicant claimed to be in fear of persecution.[159]  Similarly, during its visits to detention facilities in Texas and Arizona, the Inter-American Commission interviewed a number of detained asylum-seekers who said they had signed sworn statements and other documents without being given the opportunity to review them or to understand what they were signing.

116.          The IACHR is therefore concerned over the high number of immigrants subjected to expedited removal with little or no access to legal representation[160] and without being guaranteed their right to be heard by an immigration judge to argue their legal grounds or other claims to justify their continued presence in the United States.

117.          Particularly troubling is the predicament of asylum seekers, since the expedited removal process does not have the necessary means to properly identify claims of this type.  The Inter-American Commission is also disturbed by the fact that the State has failed to implement the recommendations proposed by the Bi-partisan USCIRF with a view to safeguarding the rights of asylum seekers in expedited removal proceedings.[161]

118.          Even if an asylum seeker passes the “credible fear” screening with the asylum officer, or when appealing his or her case before an immigration judge, if the asylum seeker announces his need for protection at the border or port of entry, he or she will still be regarded as an “arriving alien” and hence be subject to detention without bond.  Persons in this situation are eligible only for parole, as will be explained below.[162]  The next section describes the situation of “arriving aliens” not subject to expedited removal.

b.         Arriving aliens

119.          Like asylum seekers and persons fleeing persecution, other noncitizens who are detained at the border or a port of entry because immigration officials cannot confirm their admissibility, are designated as “arriving aliens.”[163]  Under certain circumstances, even legal permanent residents (LPRs) may be treated as arriving aliens until there is a determination confirming their admissibility.[164]  This category of arriving noncitizens, who may have a valid visa or status to be admitted into the United States, are not subject to the summary “expedited removal” procedure and thus have access to judicial review of their cases.[165]  Even so, like other “arriving aliens,” this class of arriving noncitizens is detained until their claim to be admitted is resolved in immigration court.[166] 

120.          Arriving noncitizens designated as “arriving aliens” have a limited range of rights to obtain release from preventive detention.[167]  “Arriving aliens” cannot seek release on bond or any other review of their detention before an immigration judge;[168]  they are only eligible to apply for parole.[169]  Parole allows for release from custody, but it is granted at the sole discretion of ICE[170] and there is no review of ICE’s parole decisions by an independent judge or court.[171]   Furthermore, the application for parole in the case of “arriving aliens” is the exception, and parole decisions in such cases happen only for “urgent humanitarian reasons or significant public benefit.”[172]

121.          ICE conducts a two-step process to determine if an arriving noncitizen should be paroled.  First, an arriving noncitizen must demonstrate that he or she is not a security risk or does not pose a risk of absconding.[173]  Nevertheless, even if the arriving noncitizen satisfies this requirement, only limited groups of noncitizens will be eligible for parole.  The federal regulations single out the following as the eligible groups: noncitizens with serious medical conditions; pregnant women; juveniles; witnesses in judicial, administrative, or legislative proceedings; and noncitizens whose continued detention is not in the public interest.[174]  Even if an arriving noncitizen qualifies for parole under this two-step process, it is still in ICE’s exclusive discretion to parole that noncitizen, and ICE’s discretionary decision is not subject to judicial review.  Furthermore, ICE can seek other assurances from the detainee before parole, such as setting a parole bond amount and periodic reporting requirements.[175]

122.          As for the discretionary authority exercised in decisions related to personal liberty, particularly when examining parole proceedings for “excludable aliens” who enter  United States territory, the IACHR held the following:

A legislative procedure by which individuals are deprived of their liberty cannot, in the Commission's view, be considered to be sufficiently precise, fair and predictable as required under Article XXV of the Declaration, when that outcome of that procedure is ultimately dependent upon the largely unfettered discretion of the very officials who are responsible for carrying out those detentions. In such circumstances, the Commission considers that the discretionary power left to the public authorities to deprive the petitioners of their liberty are so wide that they exceed acceptable limits.[176]

123.          In the case of Rafael Ferrer-Mazorra, the Inter-American Commission expressed its concern over the fact that the administrative decision regarding parole was not subject to appeal.[177]

124.          With  respect to “arriving aliens” who are seeking asylum, in response to the implementation of the 1996 immigration laws, in October 1998 the Immigration and Naturalization Service (INS) established Detention and Parole Guidelines for all of its regional directors, which regulate these and other types of cases.[178]  Without eliminating the discretionary nature of the decision to grant parole, the INS guidelines encouraged parole for “arriving alien” asylum seekers.  The pertinent part of the October 1998 memorandum read as follows:

Any alien placed in expedited removal must be detained until removed from the United States and may not be released from detention unless . . . (2) the alien is referred for a full removal proceeding under §240 (for example, upon a finding of “credible fear of persecution’). Although parole is discretionary in all cases where it is available, it is INS policy to favor release of aliens found to have credible fear of persecution, provided that they do not pose a risk of flight or danger to the community.[179]

125.          This was the INS and its successor’s (ICE) parole policy for “arriving alien” asylum seekers for the next nine years.  In November 2007, however, ICE revised its established parole policy for “arriving alien” asylum seekers, making parole a more stringent process.[180]  While under both policies ICE had discretionary authority to grant parole, the November 2007 policy changes further curtailed the chances that asylum seekers had of qualifying for this benefit.  Under the October 1998 guidance, parole of an “arriving alien” asylum seeker who passed a “credible fear” interview was generally considered in the public interest.[181]  The 1998 memorandum makes no reference to the five categories enumerated in the federal regulations.[182]  Under the November 2007 directive, ICE takes the five categories for parole found in the federal regulations and makes them a criterion in order to establish eligibility for parole, and not grounds for parole in of itself.[183]  In effect, under the November 2007 directive, the parole of “arriving alien” asylum seekers was now not generally considered to be in the public interest; rather, only a subset of “arriving alien” asylum seekers who  passed a “credible fear” interview would qualify for parole because it was in the public interest.[184]

126.          Therefore, after November 2007, only a fraction of “arriving alien” asylum seekers who passed the “credible fear” screening process qualified to receive parole on public interest grounds.

127.          According to the government’s statistics, 4,606 asylum seekers were in detention in FY2008 after passing the “credible fear” screening process.[185]  The State reports that in FY2008, an arriving alien asylum seeker spent an average of 81 days in detention once the “credible fear” screening process had been completed.  Some 75% of these arriving aliens seeking asylum were held for up to 90 days in detention after having passed their respective “credible fear” interviews.[186] A number of NGOs have observed that the average length of detention for arriving aliens seeking asylum is in all likelihood higher than the official statistics.[187]  Irrespective of what the precise average period of detention is, the IACHR believes it is unacceptable for noncitizens seeking asylum to have to spend so long a period in detention, as this is a violation not only of international obligations with respect to personal liberty, but also of specific provisions of international refugee law.

128.          It is also important to note an asylum seeker who has passed a “credible fear” interview still must file a request with the local ICE office seeking parole.  According to the statistics that ICE supplied to the Bi-partisan United States Commission on International Religious Freedom (USCIRF), only 215 of the 842 asylum seekers (25%) detained between November 2007 and June 2008 filed petitions seeking parole,[188] so that only those 215 were considered for parole.  The Inter-American Commission is also troubled by the information suggesting regional disparities in parole rates for arriving asylum seekers and the apparent absence of consistency and quality control in parole decision-making and, in general, the low percentage average of asylum seekers who are granted parole after requesting it.[189]

129.          The United States addressed this issue in its October 2010 observations:

In January 2010, ICE issued the revised policy, “Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture.” This policy allows ICE to address and prioritize the use of detention resources and respond to the needs of this vulnerable population.  Under the new policy, aliens who arrive in the United States at a port of entry and are found to have a credible fear of persecution or torture will automatically be considered by ICE for parole.  This is a change from the prior policy, which required aliens to affirmatively request parole in writing.

In addition, the new policy adds heightened quality assurance safeguards, including monthly reporting by ICE field offices and headquarters analysis of parole rates and decision-making, as well as a review of compliance rates for paroled aliens.  Further, while the prior policy allowed ICE officers to grant parole based on a determination of the public interest, it did not define this concept.  By contrast, the new directive explains that the public interest is served by paroling arriving aliens found to have a credible fear who establish their identities, pose neither a flight risk nor a danger to the community, and for whom no additional factors weigh against their release.

130.          The IACHR observes that a limited possibility of qualifying for parole exacts a particularly heavy toll on asylum seekers, because of the psychological effect that detention has on such persons[190] and because of how important one’s freedom is for getting due process and obtaining the protection that an asylum seeker is after.[191]  The Inter-American Commission welcomes the updated information supplied by the State, which reveals that the appropriate steps are being put in place to guarantee the rights of asylum seekers.

c.         The new guidelines on parole for arriving noncitizens seeking asylum

131.          The Inter-American Commission notes the announcement by ICE that effective January 4, 2010, it would be implementing the new guidelines which recommend parole of asylum seekers categorized as “arriving aliens” who pass a “credible fear” interview, can establish their identities, and do not pose a flight risk or danger to the community. [192]

132.          In its response to the draft version of this report, the United States explains that “as a division of a U.S. Government agency, ICE is charged with implementing and enforcing U.S. law within its mandate”.  The new policy issued by ICE regarding arriving aliens, in the view of the United States, “squarely addresses the Commission’s concerns regarding the detention of arriving aliens” as it “permits ICE to parole arriving aliens who have a credible fear of persecution, who do not pose a flight risk, or are not believed to be a danger to the community when no additional factors weigh against release of the alien”.

133.          ICE’s new parole guidelines for “arriving alien” asylum seekers feature three important aspects.  First, the “arriving alien” asylum seekers will automatically be considered for parole rather than requiring the asylum seeker to petition for parole in writing.  Second, the guidelines will require ICE field offices to file monthly reports so that DHS central headquarters can analyze parole rates, field offices’ decision-making, and the level of compliance of paroled asylum seekers with the conditions imposed.  Third, the new guidelines will require the United States Citizenship and Immigration Services (USCIS) asylum officers to provide asylum seekers who pass the credible fear interview with information regarding the new parole process and documentation which will help establish eligibility for release.[193]

134.          Although the IACHR considers that this policy change is an important step toward protecting asylum seekers’ right to personal liberty, it also believes that legally enforceable regulations should be put into place.[194]  When it comes to some of the specifics of the new guidelines, the Inter-American Commission is concerned that the initial requirements, especially the standards requiring that asylum seekers demonstrate they are not a flight risk, place an undue burden of proof on the asylum seeker.   As noted in the section on international standards on the right to personal liberty, it is up to the respective authority to present sufficient arguments, on a case-by-case basis, to explain why detention is necessary rather than a less onerous measure.  The burden of proof must be on the authority ordering detention or denying parole, not on the immigrant.

135.          The burden of proof that these guidelines place on the asylum seeker is not only undue, but perhaps even insurmountable.  The new ICE directive on parole provides that the asylum seeker “must present sufficient evidence demonstrating his or her likelihood of appearing when required.”[195]  The directive also lists a set of  “appropriate factors” which would seem incongruent with the circumstances of an arriving asylum seeker and thus very difficult to satisfy:

Factors appropriate for consideration in determining whether an alien has made the required showing include, but are not limited to, community and family ties, employment history, manner of entry and length of residence in the United States, record of appearance for prior court hearings and compliance with past reporting requirements, prior immigration and criminal history, ability to post bond, property ownership, and possible relief or protection from removal available to the alien.[196]

136.          Many arriving asylum seekers have no prior connections to the United States and have limited resources, making the factors presented above largely impossible to satisfy.  After seeing the very low parole rates for arriving aliens who have been found to have a credible fear of persecution or torture,[197] the IACHR is particularly concerned that the flight risk criterion could be interpreted in a manner that will prohibit many asylum seekers from being granted parole; instead they might be filtered into Alternatives to Detention programs (“ATDs”) or detained.

137.          The Inter-American Commission also notes that the new guidelines do not modify ICE’s exclusive jurisdiction to serve as both judge and jailer over detained asylum seekers labeled as “arriving aliens.”[198]  Nothing in the new guidelines changes the fact that there is no way to file an appeal with an immigration judge to challenge the denial of parole.[199]

138.          And although the new reporting requirements incumbent upon ICE regional offices and the review of those reports at headquarters seem to provide greater assurances of consistency and quality control with respect to parole decisions issued at the regional level, the review is designed to correct significant and recurring problems in the regional offices’ decision-making process, but not review  or take corrective action on individual cases.[200]  This concern is particularly important because the ICE offices do not operate on the basis of a presumption in favor of liberty and therefore do not do stringent, periodic and case-by-case evaluations to determine whether continuing to hold a detained asylum in custody is a necessary and proportional response.

139.          Summarizing, while these new directives have some positive features and are similar to those implemented through the October 1998 Memorandum, the chief human rights concerns have not been adequately addressed.  These concerns are the undue burden of proof placed on the asylum seeker, the discretionary nature of the parole decision, and the impossibility of challenging that decision in court.

3.         Noncitizens in the U.S. interior

140.          The IACHR will next turn its attention to the situation of persons subjected to immigration proceedings and detention once they are in the country’s interior.  For this purpose, the Inter-American Commission has divided up its reporting according to whether the immigration law is applied at the federal level or the state or local level.

a.         Enforcement of Federal Law by Federal Immigration Officers

141.          The two principal federal interior immigration enforcement programs are the Worksite Enforcement Unit and the Fugitive Operations Teams.[201]  The IACHR will explain what each of these units does, the procedures or programs they use and the main concerns as regards the United States’ international human rights obligations.  The Inter-American Commission will also discuss the initiatives announced by DHS to overhaul the enforcement strategies they deploy.

i.          Worksite Enforcement Unit

142.          Although in April 2009 ICE issued guidance that changes the principal focus of the Worksite Enforcement Unit, the IACHR believes it is important to examine its previous practices, particularly the high-profile worksite and home raids,[202] as these procedures have serious implications for human rights.  Furthermore, this analysis is important inasmuch as the Administration has used these models as a basis and in some respects has continued the same practices despite the reforms.

143.          Since FY2006, the Worksite Enforcement Unit has conducted an increasing number of high-profile worksite raids.  During these raids, hundreds of undocumented workers were arrested for violations of civil law, yet only a small percentage were taken into custody on criminal charges.[203]  The ICE figures show that between FY2006 and FY2008 the Worksite Enforcement Unit made 12,917 administrative arrests, but only 2,682 criminal arrests.[204]

144.          The Inter-American Commission learned that these figures on criminal arrests do not capture the specific circumstances under which many of the arrests were made.  The IACHR observes that the worksite raid in Postville, Iowa, is emblematic of the “criminal arrests” reported by the Worksite Enforcement Unit between FY2006 and FY2008.[205]

145.          In an essay published on June 13, 2008, an interpreter for the workers arrested during the raid on the meat packing plants in Postville, Iowa, painted an alarming picture of many of the “criminal arrests” conducted at worksites, and of the due process rights of migrant workers who are brought up on criminal charges.[206]  During the Postville raid on May 12, 2008, 389 workers were arrested, only 5 of whom had criminal records.[207]  ICE brought criminal charges against 306 of the 389 workers apprehended.[208]  To expedite the criminal proceedings, a hearing room was improvised and a complex of 23 trailers set up on the site of the National Cattle Congress, sprawling acreage used as the local fair grounds.[209]  The majority of those detained were charged with the crime of “aggravated identity theft” (which carries a mandatory two-year sentence) and of “knowingly using a false Social Security number” (an offense that carried a discretionary sentence of 0 to 6 months).[210]

146.          Multiple accounts indicate that the State used the criminal charges as a threat to get the majority of the workers to admit to the charges against them and accept a binding plea agreement in which they admitted to a lesser charge that carried a five-month sentence.[211]  The majority of the workers charged were poor peasants from Guatemala and Mexico who were their families’ principal providers.[212]

147.          The American Immigration Lawyers Association filed a complaint because the accused workers were not permitted to speak with immigration attorneys to be advised of the immigration consequences that a guilty plea would have.[213]   Under the terms of the plea agreement, the Government required the accused workers to waive their right to an immigration proceeding.[214]  The plea agreements were also crafted in such a way that the presiding judges did not have any discretion to change the terms of the plea agreement.[215]

148.          The workers entered the hearing room in groups of five to ten, shackled and in chains, and one by one entered a guilty plea.[216]  Two hundred seventy of the accused workers pleaded guilty to the criminal violation and served five months in prison.[217]  

149.          The Inter-American Commission is deeply troubled by the lack of due process in the criminal proceedings conducted against the workers and by the fact that the outcome was a foregone conclusion.  While the State has discontinued this type of worksite “criminal procedure” the IACHR is nonetheless concerned that the State is using tactics involving criminal prosecution, such as threatening immigrants with more serious charges in order to get them to plead guilty to lesser offenses or conducting en masse hearings, as happens under Operation Streamline conducted in the participating judicial districts along the border with Mexico.[218]   

150.          The Inter-American Commission notes with concern that criminal law is being misused to criminalize immigration, which can have consequences of various kinds.  On the one hand, criminal law can be used to exert pressure on immigrants in removal proceedings by threatening them with criminal prosecution, which often corners them into waiving their rights.  On the other hand, if the message sent is that these undocumented immigrants are criminals, the use of these practices that are controversial from the human rights standpoint --such as detaining immigrants for the sake of “public safety”-- can become even more widespread.

151.          Furthermore, these worksite raids raised disturbing humanitarian concerns.  According to information from NGOs, these operations involved dozens of armed agents who surrounded the workplace to prevent workers from leaving while the interrogations about their immigration status lasted for hours.[219] They also reported that in many cases workers signed deportation papers even before they were able to exercise their right to speak with an attorney.[220]  They also observed that after being held in custody at worksites for hours, the arrested workers were generally handcuffed and in some cases even shackled to be boarded on buses to be taken to the facility where the immigration proceeding would be conducted.[221]  In many of these raids, ICE did nothing to coordinate with local schools and social services to ensure that the dependent children of the detained workers would be properly cared for.  In the worksite raid conducted in New Bedford, Massachusetts, one hundred or more dependent children were left without their only provider and caretaker, in some cases for several days.[222]

152.          As previously observed, in April 2009 ICE issued directives for worksite immigration enforcement with the focus on employers.[223]  Nevertheless, the new strategy mentions that “ICE will continue to fulfill its responsibility to arrest and process for removal illegal workers encountered during worksite enforcement operations.”[224]  This directive extends application of the humanitarian guidelines --which include coordinated medical care, social services, adequate supplies of food and water--[225] to “all worksite enforcements involving 25 or more illegal workers rather than 150 [the previously-established ceiling].”[226].      

153.          ICE has already implemented this new worksite enforcement strategy.  In November 2009, ICE completed an initial round of audits of the employment records of 654 companies and announced a second round of audits that would include the employment records of another 1,000 companies.[227]  Thus, the new worksite enforcement strategy appears to have focused on “building” criminal cases against employers, imposing civil fines on employers or threatening them with fines, and forcing them to fire undocumented workers.[228]

154.          Based on the information received, the IACHR believes this new approach strikes a better balance between the State’s prerogative to enforce rational immigration policy, while doing so in a manner that treats undocumented migrant workers and the families who depend on those workers in a humane manner.  The Inter-American Commission appreciates how important it is that the humanitarian services guidelines will now be triggered in operations involving far fewer workers.  The new strategy also brings a better balance to immigration enforcement by not placing the consequences and impacts for irregular labor exclusively on the most vulnerable actors in the system—the migrant workers.

155.          The United States mentions in its October 2010 observations to the draft version of this report that “ICE’s Worksite Enforcement program is focused on creating a culture of compliance by holding employers accountable for obeying the law” and that the agency “is aggressively pursuing criminal prosecution of employers who knowingly hire undocumented aliens”.  The investigations of such employers by ICE, as indicated by the State, “often uncover other criminal violations and widespread abuses, such as money laundering, alien harboring, alien smuggling, document fraud, and other forms of worker exploitation”.  The State affirms that “ICE is particularly sensitive to allegations of exploitation and underpayment of wages”, and adds:

Along with criminal prosecutions of employers, ICE will continue to fulfill its responsibility to arrest and process for removal unauthorized workers encountered during worksite enforcement operations, which are conducted in support of a criminal investigation of an employer.  However, when encountering unauthorized workers, ICE continues to employ existing humanitarian guidelines.  These guidelines require ICE to develop a comprehensive plan to identify, at the earliest possible point, any individuals arrested on administrative charges who may be sole care givers or who have other humanitarian concerns, including those with serious medical conditions that require special attention, pregnant women, nursing mothers, parents who are the sole caretakers of minor children or disabled or seriously ill relatives, and parents who are needed to support their spouses in caring for sick or special needs children or relatives.  These special vulnerabilities are then carefully assessed prior to any decision on whether or not an unauthorized worker should be detained or released.

156.          The IACHR welcomes the constructive engagement on the part of the immigration authorities in the United States, while at the same time recognizing that there is a larger political debate inside the United States with respect to comprehensive immigration reform and whether currently undocumented migrants should receive legal status.  The merits of that larger debate, however, are beyond the scope of this report.

ii.         Fugitive Operations Teams

157.          The Fugitive Operations Teams (FOTs) are seven-member teams tasked with identifying, locating, apprehending, processing, and removing fugitive aliens from the United States.[229]  The stated goal of the Fugitive Operations Program is to “give top priority to cases involving [fugitive] aliens who pose a threat to national security and community safety, including members of transnational street gangs, child sex offenders, and aliens with prior convictions for violent crimes.”[230]  A “fugitive alien” is defined as “an alien who has failed to leave the United States based upon a final order of removal, deportation, or exclusion; or who has failed to report to ICE after receiving notice to do so.”[231]

158.          The United States explains this program in the following terms:

The focus of the National Fugitive Operations Program is the apprehension and removal of fugitive aliens, with a particular focus on criminals and national security threats.  An ICE fugitive is defined as an alien who has failed to leave the United States based upon a final order of removal, deportation, or exclusion; or who has failed to report to ICE as requested.

159.          The FOTs were launched with 8 teams in 2003.[232]  As of November 2009, there were more than 100 FOTs across the United States.[233]  The Fugitive Operations budget has, likewise, multiplied during that period from US$9 million in FY2003 to US$218 million in FY2008.[234]  Since 2005, FOTs have conducted a number of high-profile operations including “Operation Return to Sender” (nationwide), ‘Operation City Lights” (Las Vegas), “Operation Phoenix” (Florida), “Operation Deep Freeze” (Chicago), and “Operation FLASH” (New England).[235]

160.          FOTs’ enforcement actions typically consist of home raids at the last known address of a fugitive alien as recorded in the Deportable Alien Control System (“DACS”), which was transferred to the a new electronic database “ENFORCE”, unveiled in August 2008.[236]  The FOTs will many times partner with local law enforcement Joint Fugitive Task Forces in carrying out their enforcement actions.[237] 

161.          Although ICE maintained that the FOT program was targeted at apprehending fugitive immigrants with serious criminal records,[238] ICE’s policy goals for accomplishing the mandate of the FOT program became less strict with the passage of time and the program became a means to make more collateral arrests of undocumented immigrants against whom no prior removal orders were pending.

162.          In FY2003, when the FOTs began, ICE determined that each team’s annual goal was to apprehend 125 fugitive aliens, with priority being given to the backlog of fugitive alien cases and aliens released on orders of supervision, a form of relief from detention that is similar to a parole.[239]  In January 2004, ICE attempted to focus the FOTs’ priorities on apprehension of fugitive aliens with criminal records, by requiring that 75% of all fugitive operations have as their goal the apprehension of “criminal” aliens.[240]  In January 2006, ICE reshuffled the FOTs’ apprehension priorities and goals.[241]  It is important to note that ICE set an annual average goal of 1,000 fugitive immigrants per FOT, without factoring in the degree of priority of the fugitive.[242]  Eight months later, in September 2006, ICE changed the annual, per-team production target to 1,000 fugitive alien arrests.[243]  It is not surprising, then, that the changes to the FOTs’ goals and priorities which ICE introduced in 2006 have significantly increased the number of collateral arrests of immigrants who were not being sought during the home raids.[244]       

163.          In effect, according to the MPI’s analysis of ICE’s figures on arrests made by the FOTs between FY2003 and February 2008, only 27% of the persons apprehended by the FOTs had criminal records of any kind, and persons with criminal records represented a diminishing percentage of all individuals apprehended over that time period. [245]  By contrast, the MPI found that in that same period, arrests of undocumented (but not fugitive) immigrants represented an ever-increasing percentage of the total number of arrests made by the FOTs, and by 2007 accounted for 40% of the total.[246] 

164.          The Inter-American Commission observes that the FOTs are but another example of how the civil nature of immigration is distorted through these practices, which persecute immigrants on the grounds that they have committed crimes and thus pose a threat to public safety.  While the IACHR recognizes that the State has both an obligation and a right to protect the security of persons under its jurisdiction, the FOTs’ operations –-which in theory are supposed to be prioritizing persons who have committed crimes-- appear in practice to have become a façade for persecuting undocumented immigrants in general.

165.          Furthermore the IACHR observes that this strategy has proved to be very problematic from the standpoint of the balance that has to be struck between the State’s interests and the recognized rights of the family, family life and privacy.  A March 2007 report done by the DHS’ Office of  the Inspector General expressed deep concern over the reliability of the figures in the databases  in the DHS’ Deportable Alien Control System, the principal internal source of information on fugitive immigrants.[247]  In that report, an experienced analyst who had worked with the DACS for some time estimated that only about half the information in the database was accurate.[248]  As a result, many of the raids conducted by FOTs were in homes where the fugitive alien they were after no longer lived.  Whenever it conducts a home raid, the Fugitive Operations Team obtains an administrative detention warrant for every fugitive immigrant being sought in the operation.[249]

166.          The Inter-American Commission has information to the effect that the administrative warrants of detention are issued by ICE officials and no evidence need be presented under oath before an independent judge to show probable cause that the law has been violated.[250] In responses to the Legislature’s questions about home raids in New Haven, Connecticut, Michael Chertoff, former Secretary of Homeland Security, acknowledged that the administrative warrants for removal do not give FOT agents the authority to enter a dwelling without consent.[251]  Secretary Chertoff observed, however, that other persons they encounter during an operation can be questioned about their right to be in the United States and “if deemed to be here illegally, may be arrested without warrant.”[252]

167.          The IACHR is also alarmed by information received regarding how the home raids are carried out.  The Inter-American Commission has received reports to the effect that armed FOT agents arrive at the homes in the early morning hours, bang hard on the doors and windows, and falsely identify themselves as the “police,” whereupon they force the door open to enter the homes with guns drawn.[253]  Once inside, the FOT agents rounded up everyone in the house; they shifted their focus away from the identified fugitive who was the purpose of the raid and instead began to question all the residents of the household about their immigration status, even before a probable cause to do so had been established.[254]

168.          Under federal immigration regulations, in reports on FOT operations ICE officials are to document that a team has obtained prior consent before entering the premises.[255]  However, the 2009 report prepared by the Immigration Justice Clinic of the Benjamin N. Cardozo Law School of Yeshiva University examined home raids conducted in Long Island, New York state and in the state of New Jersey between 2006 and 2008.  It found that in 86% of the home raids conducted on Long Island and 24% of those conducted in New Jersey, the ICE officials did not obtain prior consent before entering the homes, or were unable to document the fact that they had obtained that consent.[256]  It was later discovered that all but nine of the administrative warrants issued by the immigration enforcement agency had the wrong address for the person they were pursuing.[257] 

169.          As for immigration enforcement and home raids, the IACHR recognizes that every State can practice policies and order methods to control the flow of immigrants that enter and leave its territory.  Nevertheless, the Inter-American Commission must reiterate that the means a State uses to exercise that authority must be respectful of human rights.  The IACHR finds it deeply troubling that the State continues to use home raids as a principal mechanism to enforce its immigration laws, despite the traumatic effects such raids have on the persons affected, which many times include children.  The State should make every effort to strike a better balance between its interests in practicing reasonable immigration enforcement policies and its obligation to ensure the human rights of all persons subject to its jurisdiction.

170.          The Inter-American Commission welcomes ICE’s decision to eliminate FOTs’ annual quotas for immigrant arrests and to provide guidance to focus this program on its intended mandate, i.e., apprehending fugitive aliens who have a criminal record.[258]  In a December 2009 Memorandum, ICE officials provided detailed guidance to the FOTs with respect to how they are to carry out their mandate.  First, FOTs are instructed to spend at least 70% of their resources on the apprehension of fugitives, with particular emphasis on fugitives with criminal convictions.[259]  Second, FOTs are to receive Fourth Amendment training (Unreasonable Search and Seizure) every six months; are to focus on cases with the most recently issued final orders of removal where the contact information is more likely to be current, and are to conduct surveillance of the targeted home before conducting a raid.[260]  Third, ICE instructs that FOTs can only detain immigrants of a vulnerable population under extraordinary circumstances and only with approval from the Field Office Director and notice to ICE headquarters.[261]  Finally, the guidelines set new goals for measuring FOTs’ performance—focused principally on reducing the pool of fugitives and compliance with the memorandum’s stated priorities.[262]

171.          The IACHR, nonetheless, remains deeply concerned that FOTs’ continued use of home raids[263] may violate articles V, VI, and IX of the American Declaration, especially if there is no verifiable evidence that a targeted person poses a threat to public safety or national security. FOTs are still likely to carry out home raids at wrong addresses and are still permitted to detain migrants with ordinary status violations who are encountered in the course of an operation.[264]  Thus, while ICE has changed the focus of the program, this does not necessarily mean that it will not continue to have significant impacts on non-targeted immigrants.

172.          Furthermore, although the quotas that the FOTs must meet have been eliminated, the Inter-American Commission has received disturbing information to the effect that deportation quotas continue to be factors weighed in evaluations and promotions of ICE agents.[265]  Given the circumstances, the IACHR believes that the elimination of the FOTs’ quotas is unlikely to do much to eliminate the problems examined in this section.  Quite the contrary, quotas used as a consideration in promotions may shift ICE’s priority away from immigrants with serious criminal histories, and instead encourage questionable methods to increase removal figures.