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

V.        FINAL CONCLUSIONS AND RECOMMENDATIONS

415.          On the basis of the investigation set forth in this report, and on the updated information and observations presented by the United States, the Inter-American Commission will proceed to its final conclusions and the corresponding recommendations.  The observations presented by the United States to the draft version of this report have been very valuable in assessing those areas in which advances have already been made, and where immigration reform is producing concrete results toward compliance with international human rights obligations.  The IACHR encourages the State to continue such reforms and to broaden them with a view to enhancing the protection of all persons under its jurisdiction.

416.          Throughout this report, the Inter-American Commission has expressed its concern with the increasing use of detention of migrants based on a presumption of its necessity, when in fact detention should be the exception.  The United States Supreme Court itself has upheld the constitutionality of mandatory detention in immigration cases that have not been decided, despite the fact that the violations alleged are civil in nature, and despite the loss of liberty that detention presupposes.

417.          The IACHR is preoccupied by the rapid increase in the number of partnerships with local and state law enforcement for purposes of enforcing civil immigration laws.  The Inter-American Commission finds that ICE has failed to develop an oversight and accountability system to ensure that these local partners do not enforce immigration law in a discriminatory manner by resorting to racial profiling and that their practices do not use the supposed investigation of crimes as a pretext to prosecute and detain undocumented migrants.  In this regard, the October 2010 observations of the United States point to the implementation of performance-based standards.  The Inter-American Commission will be very interested in analyzing the result of the application of those standards as part of the follow-up to the recommendations of this report.

418.          It must be reiterated that detention is a disproportionate measure in many if not the majority of cases, and that the programs that provide for alternatives to detention constitutes a more balanced way for the State to ensure compliance with immigration laws.  Another concern the IACHR sets forth in this report is the impact of detention on due process, mainly with respect to the right to legal counsel which directly affects the right to seek release.  To better guarantee the right to legal representation and, ultimately, to due process, the IACHR considers that stronger programs offering alternatives to detention are needed and the Legal Orientation Program must be expanded nationwide.  In this regard, the October 2010 observations of the United States indicate initiatives to broaden its alternative to detention programs, an initiative which the IACHR welcomes. 

419.          In this report the IACHR also stresses that even in those cases in which detention is strictly necessary, there is no genuinely civil system where the general conditions comply with standards of respect for human dignity and humane treatment; there is also a lack of the special conditions required for in cases of non-punitive detention.   As developed above, the IACHR is further troubled by the frequent outsourcing of the management and personal care of immigration detainees to private contractors.

A.        Interior Enforcement Recommendations

420.          The Inter-American Commission acknowledges the significant challenges that the federal government faces in administering such a complex, expansive system of immigration enforcement and removal.  Given the human rights concerns identified in this report, the IACHR offers the following recommendations for how the State can improve its current policies and practices with respect to immigration enforcement, detention, and due process, so as to enhance the protection of immigrants’ basic human rights.  The Inter-American Commission urges DHS to expend the financial and human resources required to achieve vigorous central oversight, accountability and control over the many aspects of ICE’s civil immigration operations.  This will require significant increases in ICE personnel to provide direct, in-person, daily supervision of the various facets of ICE’s civil immigration operations.

1.         Federal Enforcement Programs

421.          Given ICE’s new emphasis on investigation of employers, the IACHR urges the State to devote the necessary resources to lower the error rate in its E-Verify system, which is used to determine an employee’s work authorization.[659] Further, the Inter-American Commission urges the State to standardize the employment audits and make them more transparent, so as to give workers access to the audit process, to give them a reasonable period of time to prove that their work status is valid and to implement stricter supervision of employers to make certain that they are not engaging in prohibited practices, such as taking adverse employment action when social security numbers do not initially match or failing to inform workers of their rights under the program.  The IACHR urges the State to prioritize worksite control in the case of those employers who commit abuses of employees.  If an unauthorized immigrant is apprehended at his or her workplace, the State must guarantee strict enforcement of the humanitarian guidelines issued by ICE.[660]

422.          With respect to ICE’s Fugitive Operations program (FOT), the Inter-American Commission recommends the elimination of home raids, unless the targeted immigrant fugitive has a serious criminal record or poses another identifiable, serious risk to the safety of the community.  To the extent that FOTs continue to execute home raids, the IACHR urges that ICE require:

a.       that the raid be carried out exclusively by FOT officers based on reliable evidence;

b.       that the FOT officers identify themselves as “immigration officials” before seeking entry to the dwelling;

c.       that the FOT officers present individualized administrative arrest warrants issued by an independent judge before seeking to enter the residence, and

d.       that the FOT officers not be permitted to arrest collateral persons who are not named in the administrative arrest warrant.

423.          Finally, the Inter-American Commission urges the State to eliminate the use of removal quotas to evaluate and promote ICE personnel, in order to prevent a deviation from ICE’s priorities, which are that the focus should be on immigrants with serious criminal records.

2.         State and Local Partnership Enforcement Programs

424.          This section includes the recommendations of the IACHR with respect to ICE’s programs to enforce civil immigration law through state and local partners (287(g), Jail Enforcement, Criminal Alien Program, and Secure Communities Program). 

425.          The IACHR recommends that ICE eliminate 287(g) authorization for Task Force Enforcement, as the federal authorities are unable to properly monitor to prevent and combat the use of racial profiling and the negative effects on security and crime prevention.  The Inter-American Commission also recommends that the United States Department of Justice (DOJ) replace its April 3, 2002 memorandum -–in which it found that local law enforcement agencies have an inherent authority to enforce federal civil immigration laws-- and return its position to the DOJ policy announced in 1996.[661]  

426.          First, the Inter-American Commission recommends that the state and local partners only be permitted to participate in enforcement of civil immigration laws once an individual has been criminally convicted or the criminal proceeding has been fully adjudicated.  Second, the IACHR urges ICE to require participating LEAs to collect essential data that may indicate racial-profiling of the persons whose immigration statuses are reviewed and to periodically report to ICE on this matter.  This data should include: the total number of arrests and the total number of persons with respect to whom the charges were dropped.  In both cases, it should be possible to break down the information by type of charge or accusation and the person’s ethnic origin.  Third, the Inter-American Commission urges ICE to establish transparent instructions to its state and local coordination teams and other appropriate bodies, so that these data can be diligently reviewed to identify possible patterns of racial-profiling.  Also, appropriate follow-up investigations should be conducted and training provided to and corrective action taken against the participating LEAs.  Fourth, the IACHR recommends that ICE conduct unannounced inspections of partner LEAs to review their implementation of the partnership agreements.  Finally, the Inter-American Commission strongly urges ICE to publish the data it compiles from the participating LEAs, so the public can monitor and be satisfied that racial-profiling is not being used in a discriminatory manner within these programs.

427.          Finally, the IACHR urges federal and local authorities to refrain from passing laws that use criminal offenses to criminalize immigration, and from developing administrative or other practices that violate the fundamental principle of nondiscrimination and the immigrants’ rights to due process of law, personal liberty, and humane treatment.  The Inter-American Commission also underscores the need to find appropriate ways to amend the law recently enacted in Arizona to adapt it to international human rights standards for the protection of immigrants.

B.        Detention recommendations

1.         Mandatory detention of arriving aliens and deportable immigrants with criminal convictions

428.          The IACHR urges the State to eliminate the practice of mandatory detention for broad classes of immigrants, including “arriving aliens” and deportable, legal immigrants (including LPRs) with criminal convictions but who have served their sentence.

2.         Custody determinations and alternatives to detention

429.          The Inter-American Commission urges the State to develop a risk assessment tool premised upon a presumption for release and to establish clear criteria to determine whether detention is in order.  Those criteria should be dictated exclusively by procedural factors in order to ensure that detention does not become punitive (for example, when there is a flight risk).   Public safety can only be invoked when the persons in question have criminal records and under no circumstances can be invoked in the case of persons who have only committed immigration infractions. Whatever the case, the determination of whether a person should be incarcerated ought to be done on a case-by-case basis, taking into account the person’s circumstances and sufficiently substantiating the reasons why the decision was not based on a presumption of liberty.  This decision should be subject to judicial review.

430.          The risk assessment tool should be designed to place each person in the least restrictive environment necessary to fulfill the State’s goals at each stage of the proceedings and should feature an evaluation of any humanitarian needs a person might have.  The humanitarian considerations regarding vulnerable groups, including families, children, the elderly, asylum seekers, victims of human trafficking, of persecution and of other serious crimes, and persons with physical or mental health problems, should create a strong presumption in favor of the need to be released or placed in an appropriate environment other than civil detention or the current detention system. Persons in vulnerable groups should only be placed in civil detention or under the current detention system in extraordinary, carefully defined circumstances.  Furthermore, the case-by-case risk assessment should consider the likelihood of a person’s success on the merits of his or her claims to remain in the United States.[662]

431.          As part of an individualized risk assessment, the IACHR recommends that immigrants be permitted to be represented by counsel, to present evidence and to appeal any decision on his or her risk assessment to an immigration judge.  The Inter-American Commission also recommends that risk assessment determinations be automatically reviewed on a defined, periodic basis and that these reviews take into account the State’s increased burden of proof when detention continues over time; pertinent developments in the proceedings on the merits should also be factored in wherever relevant.

432.          The risk assessment tool should present a broad spectrum of custody determinations, including: release, bond, telephone reporting, in-person reporting, case manager meetings, unannounced home visits, GPS monitoring, house detention,[663] residential group living, civil detention, and detention in a secured facility.  The IACHR recognizes that this will require the State to develop expansive, robust, community-based Alternatives to Detention programs.  The Inter-American Commission urges the State to significantly increase its funding for such programs, while gradually abandoning its current approach of mass detention.  In order for the Alternatives to Detention programs to be successful, the IACHR recommends that such programs include meaningful case management by properly trained personnel and assistance in accessing social service organizations.[664]

433.          The State must also guarantee that in the event persons are found to be in violation of immigration law or are not granted legal status, they are to be deported from the United States in a manner that is respectful of their human rights.

3.         Civil detention system

434.          The IACHR urges the State to significantly curtail prison-like detention conditions.  Accordingly, the Inter-American Commission urges the State to carry through with its commitment to develop a genuinely civil detention system.  The IACHR recommends that each facility house only small groups, in such a way that the State is able to provide for their basic needs and protect the human rights of all detained immigrants.  Furthermore, the State should locate civil detention facilities near urban centers in order to ensure that detainees have meaningful access to legal representation.

435.          The Inter-American Commission urges the State to design and implement proper oversight and monitoring mechanisms by federal immigration authorities, to ensure that those centers that are run by private firms comply with international standards on immigration detention.

C.        Civil detention conditions

436.          The IACHR urges the State to make the new civil detention standards into legally enforceable regulations that depart from the ACA criminal detention standards, so that they constitute the guarantee necessary to ensure that the human rights of immigrant detainees are respected.  The Inter-American Commission offers some recommendations concerning the elements necessary for the detention system to be truly civil in nature: 

a.                  The facility must provide detainees meaningful privacy, freedom of movement within the facility grounds, and access to outdoor recreation (open to the sky without obstruction).  The facility must provide ample access to all three during normal daytime hours, except under extraordinary circumstances such as a demonstrable security risk.  The detainees’ sleeping quarters must not have the appearance of a prison cell.

b.                  Visitation space must be sufficient to accommodate a reasonable amount of visitors, based on the size of the detention population, and provide basic facilities.  Detainees should be permitted to receive unplanned visitors and to have in-person, contact visits.

c.                  Facilities must provide adequate space for confidential meetings with attorneys and mental health practitioners, so that these meetings can happen in an efficient and timely manner.  Detainees should be permitted to meet with their attorneys and mental health practitioners 7 days a week during normal waking hours.  Attorney-client meetings should not have any set time limit.

d.                  Detainees must be permitted to have confidential phone conversations with their attorneys and consulates, with only well grounded restrictions on the time or frequency of such calls.

e.                  Facilities must provide appropriate space for legal orientation group meetings.  Facilities should actively seek out and accommodate potential legal orientation providers.  ICE should approve legal orientation presenters based on objective, transparent criteria.

f.                   Detainees represented by law students, BIA accredited representatives, and law graduates, must be provided with the same access to counsel as detainees represented by attorneys.

g.                  Law libraries must be up to date, with internet access and access to electronic immigration case information.  Facilities must provide ample quiet work space and office materials for detainees to work on their cases.  Detainees should be permitted to freely access the law library during normal work hours with no set time limits, demand and space providing.

h.                  Mail regarding legal matters must be kept confidential, delivered to detainees expeditiously, and if necessary opened by the detainee in front of facility staff.

i.                    Detainees should be allowed to wear their own clothing.

j.                    Detention employees should not wear prison-type uniforms.

k.                   Detention employees should not be called “guards” and detainees should not be referred to as “inmates.”

l.                     Detainees should eat meals at normal meal-time hours and have sufficient time to complete their meals.  Facilities should be open to detainee suggestions for nutritious meals that correspond to the detainees’ cultural preferences.

m.                 Detainees should not be shackled or handcuffed, either in the facility or during transport, unless there is a specific, individualized reason.  Detainees should not be shackled during immigration court proceedings.

n.                   The use of segregation, either for disciplinary or administrative purposes, must be strictly prohibited.

o.                   Detainees should have broad access to internet, e-mail, and phone communication free of charge.  All forms of communication must be kept in good working order.

p.                   Detainees should be allowed to keep possessions that are not illegal or dangerous with them in their room.  “Contraband” policies should be revised to enable detainees to accept basic, legal items such as postage stamps, envelopes, care-packages from family members and legal representatives.  Detainees must have unfettered access to their legal documents.

q.                   Detainees should be given the option of participating in organized daily activities, indoor and outdoor.  The facility should actively encourage outside organizations to provide regular activities to the detainee population

r.                    Facilities should provide detainees with access to programmatic activities, including educational, English language, and skills-based programs.

s.       Detainees should be provided a quiet space to practice their religion.  Facilities must make accommodations with respect to dress, schedule, and dietary considerations.  The facility should reach out to the greater religious community to make regular visits and perform religious services for the detainee population.

t.       Detainees must be provided with a means to register their grievances and suggestions directly to facility authorities both verbally and in writing.

1.         Medical and mental health care

437.          The IACHR first recommends that when designing and implementing a new health care system, the DIHS and other providers of health care services for immigrant detainees do away with the current model of emergency care.  The Inter-American Commission recommends that the DIHS establish a new protocol which gives primacy to the medical care decisions of the attending, qualified medical, dental and mental health personnel.  Moreover, the IACHR suggests that DIHS establish an independent review panel, which would permit detainees to appeal denials of care.

438.          As the State is currently developing a civil detention system, the Inter-American Commission is recommending that the facilities be located near urban centers, where qualified medical personnel are available.  The IACHR urges the State to earmark sufficient funds so that each facility has a clinic and medical staff to provide comprehensive health care services, including dental and mental health care.  The Inter-American Commission recommends that detainees have direct access to the medical, dental and mental health care clinics in the facilities, so that they can make appointments and receive emergency treatment.

439.          Finally, the IACHR urges the State to immediately end the practice of placing detainees with mental health issues in administrative segregation.  The Inter-American Commission urges the State to place detainees with mental health issues in environments and with treatment commensurate with their needs.

D.        Due process recommendations

440.          The IACHR is offering the following recommendations with a view to contributing to the protection of detained immigrants’ due process rights in immigration proceedings.  The Inter-American Commission is recommending that the State greatly reduce the use of expedited removal when adjudicating immigrants’ claims.  In particular, the IACHR urges the State to eliminate the application of expedited removal in the case of all vulnerable groups and asylum seekers who demonstrate a credible fear at the time of their first interview at the border or entry point.  The Inter-American Commission is also recommending the elimination of expedited removal in the case of immigrants apprehended within 100 miles of an international land border and within 14 days of entering the country.  At a minimum, the State should have the burden of proof to demonstrate that the immigrant has been in the United States for less than 14 days.

441.          The IACHR underscores the point that if detention is appreciably decreased, particularly detention in prison-like conditions, the problem of a dearth of legal representation would substantially improve.  In any event, the Inter-American Commission is recommending that the State devote significant additional resources to improve access to legal representation.  The IACHR first recommends that the State appoint government-funded counsel, or at a minimum specially trained guardians ad litem for all minors and persons with mental illnesses in immigration proceedings.  Second, the Inter-American Commission recommends that the State expand its Legal Orientation Program nationwide for both detained and non-detained immigrants.  Finally, the State should earmark financial resources to support non-profit legal service organizations with their pro bono representation programs and to provide them the means to represent persons with complex and meritorious cases.

442.          With respect to stipulated orders of removal, the IACHR recommends that apprehended immigrants have the opportunity to consult with legal counsel before consenting to an order of removal.  The Inter-American Commission further recommends that the State eliminate ICE’s role in presenting this option to an apprehended immigrant.  Rather, an immigration judge, with proper interpretation in a language understood by the apprehended person, should present this option to an individual at the first hearing in the proceeding. This option should draw a clear distinction between a “stipulated order of removal” and “voluntary departure.”  As part of this new procedure, the State should establish a protocol by which it is a judge who decides whether the immigrant understood the consequences of consenting to the stipulated removal and that the immigrant can only give his or her consent in the presence of a judge.    

443.          To ensure that every immigrant receives a fair hearing, conducted close to where family and support resources may be located, the IACHR recommends that the State require that a completed “Notice to Appear” (NTA) be promptly filed in the jurisdiction where an individual was apprehended, eliminating the possibility of ICE moving the immigrants to a jurisdiction in which the likelihood of securing an order of removal is much greater.  This would also have the effect of reducing the number of transfers within the system and would ensure that detainees are notified of the charges against them.    

444.          The Inter-American Commission recommends that the State create a strong presumption against transferring migrant detainees outside the jurisdiction of apprehension.  To the extent that transfers are necessary, the IACHR urges the State to require that a detainee be provided sufficient advance notice and that it establish a mechanism by which a detainee can turn to an immigration judge to challenge a transfer based on family, legal representation or other humanitarian considerations.

445.          With respect to the release on bond process, the Inter-American Commission recommends that the State eliminate the current regulation which establishes ICE’s right to an automatic stay of the appeal if ICE establishes an initial bond of US$10,000 or higher.  Further, the State should establish a reasonable ceiling bond amount which ICE district offices may not exceed, so that a better balance is struck between the State’s interest in appearance at all hearings and the resources the detainee has to post bond.  Both the Department of Justice (DOJ) and the DHS should develop mechanisms to review the bond process to ensure that these dual goals are met.   

446.          The IACHR urges the State to significantly limit the use of video-teleconferencing in immigration proceedings.  Video-conferencing should not be used for proceedings in which decisions are made on the merits or in any other hearing that requires the determination of the immigrant’s credibility or other subjective analysis.

447.          With respect to immigrants held after an order of removal has been issued (post-order of removal detention), the Inter-American Commission urges the State to enact regulations which affirmatively establish the State’s proactive compliance with the U.S. Supreme Court’s decisions in Zadvydas v. Davis and Clark v. Martinez.  The IACHR recommends that the State ensures that post-order of removal detainees receive prompt, meaningful 90-day custody reviews. If release is not ordered during this custody review, a specific, written explanation of the detainees’ refusal to cooperate and/or specific, written reasons why ICE believes removal is likely in the reasonably foreseeable future should be required.  The Inter-American Commission urges the State to create an automatic review at the six-month post-order deadline established by the Supreme Court for when a post-order of removal detainee must be released.  The IACHR recommends that the six-month post-order review be conducted by an immigration judge or the appropriate federal court.  

E.         Recommendations on families and unaccompanied children

448.          The Inter-American Commission is recommending that ICE codify its current practice of placing families apprehended at or near the border to normal immigration proceedings, pursuant to INA § 240.  In the case of those few families that must be subjected to detention, the IACHR is recommending that the State transfer custody of the families to the ORR and implement a range of services comparable to those that currently exist for unaccompanied children.  Finally, the Inter-American Commission is urging the State to transform the new guidelines for parole of asylum seekers into federal regulations.

449.          In an effort to respect the rights of the family and adhere to the “best interests of the child” principle, the IACHR further recommends that the federal government coordinate with state and local governments to ensure that detained immigrants are able to maintain custody of their U.S. citizen children while in detention (in light of other factors and unless there is an independent reason the parent is a risk to the child) and are permitted time and autonomy to make custody decisions with respect to U.S. citizen children if the parent is scheduled for removal from the United States.

450.          The Inter-American Commission recommends that the ORR ensure that the other contract shelters provide levels of care and a range of services similar to that observed at the Southwest Key Shelter in Phoenix, Arizona, and the International Educational Services, Inc. Shelter in Los Fresnos, Texas.  The IACHR urges the State to provide sufficient funding and place more shelters in urban areas where the necessary qualified medical, mental health, social service, educational, and legal professionals can be identified and retained to provide consistent, quality care to the unaccompanied children.  The Inter-American Commission recommends that the State codify the Flores standards into federal regulations, with a focus on the best interests of the child principle.

451.          The IACHR urges the State to earmark the necessary resources to fully implement the reforms introduced in 2008 under the TVPRA.  In particular, the Inter-American Commission underscores the importance of screening unaccompanied children from Mexico and Canada for asylum seekers, victims of trafficking, and victims of other forms of persecution and criminal activity.  To effectively identify possible victims, the IACHR urges the State to ensure that such screenings are conducted in a conducive environment, by trained personnel, with an age-appropriate screening template.  This screening should not be conducted by agents in ICE’s Customs and Border Protection or any other uniformed police unit.

452.          With respect to unaccompanied children’s due process rights, the Inter-American Commission urges the State to appoint an attorney, at the State’s expense, to represent unaccompanied children in immigration proceedings.  The IACHR further urges the State to enact regulations that prohibit DHS or ICE officials from obtaining an unaccompanied child’s health records or records of other social service consultations.

453.          With respect to unaccompanied minors repatriated to their home country, the Inter-American Commission recommends that the repatriation process be transferred to the exclusive jurisdiction of the ORR.  The IACHR urges the State to continue to improve its repatriation protocols with other States Parties to ensure that unaccompanied minors are repatriated safely and into a safe home environment.

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Finally, in concluding this report, the Inter-American Commission thanks all the persons who assisted in its preparation and drafting, including the many organizations of civil society, immigration advocates, experts, and individuals who supplied valuable time and information.  The IACHR also once again expresses its appreciation to the United States for its cooperative approach which facilitated the visits and made the investigation reflected in this report possible, and also for its constructive and informative observations that contributed to strengthen the above findings. 

The Inter-American Commission reiterates that the State must comply fully with the international human rights obligations under the American Declaration, as interpreted and developed in the inter-American system.  As indicated in the October 2010 observations by the United States, reflected in this report, some of the specific concerns of the Inter-American Commission are being addressed through immigration reform, which means that compliance with some of these recommendations is already underway.  Within the framework of its functions and competencies, the IACHR will follow up on full compliance with these recommendations, and offers the United States its collaboration and advice to that effect.

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