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New research shows immigrants, including asylum seekers fleeing torture and long-time lawful permanent residents, are being unjustly detained in the U.S.  Tens of thousands of people sit locked up in a broken and cruel system of detention with no right to even a hearing to determine if their detention is warranted.

Many languish separated from their families, commingled with people serving criminal sentences, and sometimes denied access to attorneys, family members and adequate medical care.  The Department of Homeland Security (DHS) could issue new regulations that would quickly solve many of these problems.  But instead, just three weeks ago, the office in charge of these policies testified before Congress that it plans to detain almost a hundred thousand more immigrants this year than last.

The new research outlined in the Amnesty International report released today, Jailed without Justice, shows that:

Lawful permanent residents, asylum seekers, and survivors of torture are being detained while they fight for protection
• US citizens and lawful permanent residents can be detained for years without any review of their custody
• Meaningful oversight and accountability for abuse or neglect in detention is almost nonexistent
• Individuals in detention often lack treatment for their medical needs and 74 people have died while in immigration detention over the past five years

Our findings are similar to what I’ve seen working in the immigration system for a decade.  Before I joined Amnesty International’s staff, I represented immigrants and asylum seekers in San Francisco.  I never met the first detained person whom I represented.   He was a nineteen-year-old from Sierra Leone who had witnessed the murder of his father and neighbors.  I will call him Joseph.  The night of the massacre, he slipped into a cargo ship not knowing where he was going or how long he would be at sea.  Joseph was discovered by the ship’s captain and turned over to immigration authorities upon arrival in the U.S.  He was detained in Texas and applied for asylum without the help of an attorney.  His case was denied.  To be granted asylum, a person must show that he fears persecution on account of a protected ground: race, religion, nationality, membership in a particular social group, or political opinion.  Joseph belonged to a particular tribe and his village was targeted for this reason. Under immigration law, a tribe is often considered either a race or nationality for purposes of asylum protection.

In detention, Joseph was unable to secure documents to support his claim and in representing himself, he did not know what was important to share with the immigration judge and government attorney.  I learned of Joseph’s case through a pro bono program and agreed to write his appeal.  In the appeal I asked that the case be reopened so that Joseph could submit documents supporting his claim.  Joseph’s appeal was denied.  The Board of Immigration Appeals thought Joseph had not provided evidence that he was persecuted on account of a protected ground.  I believed this decision was wrong and advised Joseph to appeal, but he couldn’t face months or years more in detention with an uncertain outcome.  He was deported.

In San Francisco I could meet my clients in jail, but communication was very difficult. Oftentimes they were despondent and we spent a lot of time talking about why it was worth it to continue fighting.  Preparing a detained client for court was extremely difficult because often the client’s wrist was shackled to the table, there was very little privacy, and we had limited amount of time together.  Securing documents could take an exceptionally long time.

When I joined Amnesty International, immigrants in detention were never far from my mind.  As part of the research team assigned to look at immigrant detention, I went back to San Francisco to document detention practices in the Bay Area.  It was disturbing to see that Immigration and Customs Enforcement (ICE) policies on detention had not improved, and in many instances, seemed more draconian.   Detained immigrants still faced an indefinite number of months and years behind bars; securing affordable counsel was exceptionally hard; and immigrants were forced to wear prison jumpsuits, shackled to each other or a table when they were outside their cells, and their time was limited when spouses and children came to visit.  It was heartbreaking and unnecessary.

Depriving people of their liberty without any right to a hearing is contrary to the constitution and American values.  As the Supreme Court found in the Guantanamo cases, the constitution does not permit the U.S. to lock people up and throw away the key.   Yet, that is exactly what is happening to tens of thousands of immigrants (and some US citizens) as they go through deportation proceedings in the U.S.  The law must change to reflect international human rights standards and U.S. values.

By Sarnata Reynolds, Policy Director for Refugee and Migrant Rights at Amnesty International USA

Originally posted to Amnesty International USA on Wed Mar 25, 2009 at 07:13 AM PDT.

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Comment Preferences

  •  The Constitution must be applied to immigrants (13+ / 0-)

    America needs to completely revamp its immigration policies to conform with the Constitution and international principles of basic human rights.

    Indefinite detention is inhuman and unamerican.

    Thanks for your hard work on human rights.


    "It's the planet, stupid."

    by FishOutofWater on Wed Mar 25, 2009 at 07:24:52 AM PDT

    •  The Constitution does apply (1+ / 0-)
      Recommended by:

      to immigrants.  But the detention is perfectly constitutional, because if they have not yet been admitted, they have no right to be present in the U.S., until cleared by the Executive Branch.  If they have been admitted and placed in deportation proceedings, then again the government can take custody of you until you leave.

      •  But some of those rounded up are citizens (4+ / 0-)
        Recommended by:
        bronte17, mango, Roxy Hope, Marja E

        and legal residents.  Anyway, no one should be held indefinitely without a trial, period.

        •  Umm... no... Immigration (0+ / 0-)

          has no jurisdiction over citizens.  And again, no one is being held indefinately.  The detention stops the moment the person departs the U.S., which they can do at any time.  The detention is meant to preclude these individuals from entering the U.S., which until they are deemed admissible, they have no right to do.  If they were admissible (as LPRs) but then adjudicated as subject to deportation then 1) they already had a hearing and 2) they can end the detention by complying with the deportation order.

  •  This is the hidden Gitmo (5+ / 0-)
    Recommended by:
    betson08, deep, mango, christine20, chrome327

    Holding people - citizens or not - indefinitely for no clear crime (remember many of these people are LEGAL residents) is disgraceful.  But with all the other problems plaguing our country right now I'm afraid this will get relegated to the backburner.

  •  While I agree to an extent... (0+ / 0-)

    Your example of Joseph shows a problem. Joseph supposedly witnessed the murder of his parents and neighbors. Jumping on a boat to anywhere is hardly what a rational person would do.

    If it actually happened, it's certainly a crime. But can anyone be certain that this is what happened? There needs to be speedy remedies to these cases, for certain. but allowing anyone in with a story isn't responsible in any way.

  •  recommended (6+ / 0-)

    this is something that is close to my heart.

    what have we become?

    "If it is man's privilege to be independent, it is equally his duty to be inter-dependent." ~Gandhi

    by Lady Libertine on Wed Mar 25, 2009 at 07:42:39 AM PDT

  •  Two Dutch friends of mine (11+ / 0-)

    were detained in New Mexico while trying to exit the U.S. on expired visas.  This was two years ago. One was detained for 3 months, the other for 2 1/2. Another friend, who lived in Albuquerque, went to the facilities numerous times to try to help.  The facilities were abysmal.  Available legal help was negligible.  Their families had no idea what had happened to them for many weeks.  Once they were found it still took many more weeks to get the Dutch embassy to rescue them. My female friend became ill because of the poor conditions and lack of medical care.  This ugly little American secret is shameful at best.  I do not understand why this story is not all over the MSM.  Oh wait, it is the MSM.....

    You're wrong for thinking I'm wrong, so that makes you wrong twice.

    by ohmyheck on Wed Mar 25, 2009 at 07:44:39 AM PDT

  •  Icemen have no blood in their veins (5+ / 0-)

    My family became involved with an immigrant family a few years ago.  Their story is very complicated but in short, they lived in California and moved to Nebraska.  Meanwhile, a letter from ICE was sent to their California address after they had moved.  When the wife, who had a green card, drove him to his first Ne. check-in with ICE, they hand cuffed him, asked him when was the last time he beat his wife...  After an hour or so, his wife 'rescued' him.  Later, they received a letter stating that in one week (exit date Dec. 23), the husband would have to go back to Guatemala and the wife and children to Mexico.

    They and we contacted The immigrant attorney who turned out to be utterly useless, and the ICE officials were intractable.  I contacted our state senator who did what he could, but finally said the Icemen live up to their names.

  •  The difference is that these (0+ / 0-)

    people are free to leave at any time.  All tehy have to do is abandon their claims and return home.  Thus, their detention is not a constitutional violation.

    I am saying this as an immigrant myself, as a lawyer who has helped a couple people get political asylum in this country, and as someone who has had 1st hand experience with immigration services and who thinks they are broken.

    However, none of this changes the fact that the COnstitution is not violated by prolonged detention of those in immigration limbo.  

    I would also point out that immigration detention is the norm in most other countries in Europe and in Australia.  

    •  Question about Europe (0+ / 0-)

      Do they detain immigrants with other criminals?  Or is it a separate system?

      •  Don't know, but it hardly (0+ / 0-)

        matters for Constitutional purposes.  

        •  It matters for HUMANITARIAN PRINCIPLES (1+ / 0-)
          Recommended by:

          not that you would know jack squat about that!

          "Free to leave" is meaningless gibberish if there is nowhere to go and nothing to return to.

          Apparently even temporary contact with ICE is enough to freeze some people's hearts and make them just like the ICEmen.

          Change WHO can believe in?

          by TheOtherMaven on Wed Mar 25, 2009 at 08:42:31 AM PDT

          [ Parent ]

          •  I don't think it matters for (0+ / 0-)

            humanitarian principles either.  We routinely hold pre-trial detainees together with post-trial convicts.  I don't think that any humanitarian principles require us to build separate detention facilities.

            As to "nothing to return to," like I said, being an immigrant myself, I greatly sympathize.  But that is not the point.  The choice is certainly an unpalatable one.  But that does not mean that because someone has a really bad situation, the Constitution requires that the U.S. government let that person into the country.

      •  In the UK (0+ / 0-)

        There are separate immigration courts and "detention centres".

    •  Detention of asylum seekers in Australia (0+ / 0-)

      Hi all,

      As the Refugee Coordinator for Amnesty International Australia, I just wanted to clarify a few things about the detention of asylum seekers in Australia.

      There are a number of important differences between the way people are detained in Australia and the way they are detained in the USA. Anyone who arrives undocumented in Australia is automatically detained and those who overstay their visa or breach their visa conditions are also liable for detention. However under the new Labor government, there is now a presumption against detention so anybody who does not pose a security risk should, in theory, be released as soon as practicable. Review mechanisms are now being put in place to ensure this occurs.

      In Australia, asylum seekers who arrive undocumented are entitled to legal assistance and the current government has gone to great lengths to fly lawyers to the Christmas Island detention centre to be able to interview their clients face to face. In Australia, while legally possible, those detained for migration reasons (including visa over stayers, asylum seekers and even criminal deportees who have completed their sentence and are awaiting removal) are not detained in prisons. Similarly, both the previous and current Australian government explicitly stated that children (and subsequently their families) will not be detained in detention centres.

      While the situation here is much improved, Australia is by no means perfect. In Australia, issues around the lack of judicial review remain a concern, as is the way Australia detains all undocumented boat arrivals on remote Christmas Island. Amnesty International in Australia continues to campaign to end this practice. However, recent changes to Australia’s detention policy have seen a dramatic drop in the numbers of people in detention here, now down to their lowest level in 15 years, with only a few hundred remaining in detention. The harsh detention policies of the previous Australian government were not only costly but significantly damaged human beings who were ultimately allowed to remain. Alternative humane approaches, in keeping with human rights principles, need to be made available for those currently detained in the USA.

  •  Re: A few clarifications (6+ / 0-)

    Hi all,

    Appreciate this lively conversation.  I wanted to clarify a few things.

    First, Joseph was found credible by the immigration judge - meaning the judge believed that his father and neighbors had been massacred.  He denied asylum because he did not think Joseph's family/village had been attacked on account of a protected asylum ground.  Slipping onto a ship was a desperate attempt to escape persecution.  Imagine being nineteen years old and hiding on a ship going anywhere.  If anything, Joseph's actions demonstrated how fearful he was.

    Second, the Supreme Court has not spoken directly on whether pre-removal immigration detention that lasts months or years is constitutional.  To the extent that it has spoken on the government's right to detain, even the current court has found limits.  In fact, in Zadvydas, a Supreme Court case looking at the constitutionality of detention AFTER a person has received an order of deportation, the Court said government detention is inconsistent with due process unless the detention is "ordered in a criminal proceeding with adequate procedural protections, or, in certain special and narrow nonpunitive circumstances where a special justification, such as harm-threatening mental illness, outweighs the individual's constitutionally protected interest in avoiding physical restraint." Zadvydas v. Davis, 533 U.S. 678 (internal citation omitted).  Immigration detention is civil in nature and there are almost no procedural safeguards. In Zadvydas, the Court found that the government could not hold immigrants with removal orders indefinitely.

    Third, the people who are in detention for months and years while they go through removal proceedings are there because they believe they have the right to remain in the US.  Amnesty International researchers talked to US citizens in immigration detention, permanent residents who were ultimately found not deportable, and asylum seekers who were ultimately granted protection.  One study in 2007 found that at least 322 people in immigration detention were US citizens.

    Finally, other countries are in violation of human rights standards relating to immigration detention, but I know of no other country locking up hundreds of thousands of immigrants every year.  Australia actually abolished its mandatory detention program almost immediately after the new labor government was elected in 2008.  Australia had a few thousand immigrants in detention.  Now there are about 100.

  •  I worked with teh Cubans in Gitmo in 1995. (1+ / 0-)
    Recommended by:

    It is a national tragedy that we do this to people in our name. Nothing has changed - the incompetence, the cruelty, the Unamerican attitudes.

    Thanks for bringing this to our attention. This blog needs to be more concerned with immigrant issues, because atrocities are occurring to our fellow human beings, and the lack of due process in these cases certainly erodes our own democracy.

  •  Re: Refugees on Guantanamo (1+ / 0-)
    Recommended by:

    Thank you for raising the fact that before there were people taken from around the world and jailed on Guantanamo as suspected enemy combatants, there were refugees stopped at sea from escaping persecution who were dumped on Guantanamo instead.  Since the early 1990s thousands of refugees, mostly from Cuba and Haiti, have been prevented from seeking asylum in the United States by rerouting them to a migrant detention center on Guantanamo. While some were eventually allowed to resettle in the US, others remain stuck on Guantanamo years later.  It is not known how many are there right now, but there is no question that there are refugees on Guantanamo in need of protection and resettlement.

    In 2007, the US government entered into an agreement with the Australian government to swap refugees. Australia also had a policy of stranding refugees on a remote island.  But again, after the new Australian government came in, that agreement was abandoned.  See the attached link.

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