CLINIC - Advocacy Issues & Programs

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DETENTION

(Please also see Mandatory Detention
and Indefinite Detention.)

Several problems plague the U.S. immigration detention system. Currently, U.S.
Immigration and Customs Enforcement (ICE) is the agency within the Department of
Homeland Security responsible for the detention of immigrants in the United States. On
any given day, ICE detains more than 22,000 individuals. The government uses a
hodgepodge of "service processing" centers, for-profit prisons, federal prisons, and
local jails to detain immigrants subject to removal proceedings, and those with final
removal orders. These individuals include women and children, long-time lawful
permanent residents, and arriving asylum-seekers.

Detention Conditions

The physical conditions at detention facilities, including overcrowding and a lack of
privacy, drive many detainees to despair. Large detention facilities are often located in
remote areas, far from legal services and vital family support systems. Inside facilities,
social and medical services are inadequate.

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No social workers exist to help identify and accommodate special religious-dietary needs, mental health or medical problems. ICE
detainees do not have access to educational or ESL programs. Recreational and exercise facilities are often inadequate or nonexistent.
Medical treatment is problematic. Physical and mental health problems frequently go undiagnosed or are improperly treated. There is
often a reluctance or refusal on the part of ICE officials to release detainees for medical treatment.

Abuse and mistreatment on the part of prison
officials is well documented. (1) At times,
detention officials have misused segregation
against detainees, turning it from a disciplinary
tool into an instrument of cruelty.

Detainees are often transferred to different
facilities with no notice. Frequently, when a
detainee is moved his or her personal effects
and important legal documents remain behind.
The government also fails to inform attorneys
when their clients are transferred.

Detention Compounds Representation
Efforts

Many detention centers fail to stock their libraries with current immigration materials. Even if such materials are available, there is often
insufficient access to those materials. Language and literacy barriers present additional obstacles. Detention makes it difficult to collect
evidence needed to support asylum and other legal claims. Prolonged detention discourages immigrants from pursuing their legal claims,
especially at the appellate level.

Many of the facilities used by the government to detain immigrants are located in remote areas, far from legal services. Examples include
Bradenton, FL, Oakdale, LA, and Ulin, IL. This forces many detainees to go to court unrepresented. Furthermore, because representing
detainees is time-consuming and costly, private attorneys often charge more than their normal rates. Nonprofit agencies cannot accept
significant numbers of these cases due to limited resources.

For those who manage to secure legal representation, other complications exist. Due to limited attorney-client meeting space in many
detention facilities, attorneys often wait hours for space to become available where they can meet with their detained clients, or for their
clients to be brought up to the waiting room for visitation. The detention standards that govern telephone access have not been uniformly
implemented. Few detention facilities have a process that enables attorneys to contact and speak with their detained clients by
telephone. Several detention facilities refuse to pass messages to detainees informing them to contact their attorneys. Others refuse to
allow an attorney to make an appointment to call the facility at a specific time to speak to a client. In some facilities, the delivery of legal
mail from an attorney to a client has been delayed by as much as two weeks.

Asylum-Seekers in Expedited Removal Proceedings

Asylum-seekers should be released unless extraordinary circumstances compel detention. Under current law, all asylum-seekers who
arrive at a U.S. port-of-entry without documents or with false documents, are detained and subject to expedited removal proceedings.
Expedited removal, created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IRRIRA), allows the government to
return such individuals to the very countries they fled. (For more information on expedited removal, see Asylum-Seekers). Unless an
arriving asylum-seeker indicates a desire to apply for asylum or expresses a fear of persecution in his or her home country, he or she
faces summary return to his or her last port of embarkation. If an asylum-seeker successfully conveys his or her fears, he or she must
then demonstrate a "credible fear" of persecution and establish a significant possibility that he or she could make out a legitimate claim
for asylum. Prior to the credible fear finding, the law requires asylum-seekers to be detained. The detention of asylum-seekers, who
have fled war-torn countries and horrific experiences, is particularly unjust and inhumane and in most cases, is unnecessary. For many
asylum-seekers, detention evokes or even mirrors the conditions they fled.

Inconsistent Parole/Release Policies

Although the law presumes that the government will release those who have passed the credible fear screening, inconsistent release
practices have plagued the expedited removal process since its inception. Significant numbers of asylum-seekers are unnecessarily
detained because certain districts arbitrarily refuse to release them. After September 11th, many districts imposed more stringent
documentation requirements upon asylum-seekers requesting parole. Many asylum-seekers have been unable to meet those requests or
secure valid travel or identity documents. This is largely due to the fact that asylum-seekers, many of whom are fleeing their own
governments, cannot risk their lives by approaching their persecutors to obtain identity documents. In addition, asylum-seekers often flee
war-torn countries, where government agencies charged with the issuance of identity documents do not function. As a result, these
individuals remain detained.

Detention Standards

In January 2001, much needed detention standards adopted by the former-INS went into effect at government-owned immigration
detention facilities, with plans to phase in the standards at all contract facilities that house immigrants. The standards create
accountability and provide an important mechanism that can be relied upon to ensure that immigrants in detention receive fair treatment.
Unfortunately, the standards are not regulatory and therefore are not consistently implemented or enforced. Where they are
implemented, they have resulted in improved immigration detention conditions. For example, one standard allows for authorized
individuals to make legal rights presentations to groups of immigration detainees. This is especially important since immigration detainees
do not have access to government appointed counsel. Legal rights presentations provide them with critical information that enables them
to better navigate the complex laws of our immigration system. Failure to require all facilities that house immigration detainees to comply
with the standards detracts from the government's intended goal of "providing safe, secure and human conditions of detention for all
aliens in INS custody." (2)

Mandatory Detention

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) mandated the detention of vast categories of immigrants,
including almost all non-citizens with criminal convictions. As a result, individuals in removal proceedings, including long-time permanent
residents with U.S. citizen family members, and persons convicted of non-violent crimes who may have served little or no time in jail,
cannot be released from detention. This is contrary to basic principles of fairness and due process, which mandate that no person is to
be detained without a hearing conducted by an independent judge to determine the need for detention. For more information, see
Mandatory Detention.

Indefinite Detention

Individuals with final orders of removal, who are from countries that refuse to accept their return, can spend years in immigration
detention, with no hope of release. Because these individuals are not recognized as nationals by their governments, they face indefinite
detention in DHS custody. Despite the Supreme Court's ruling in Zadvydas v. Davis that the U.S. government cannot indefinitely detain
such persons, many languish in detention for unconscionable periods of time. For more information see Indefinite Detention.
ution
The detention standards must be codified in the federal regulations. They must be uniformly implemented and strengthened. Standards
that govern general prison populations are not sufficient, as detained immigrants have unique needs. Unlike the general prison
population, they do not have government appointed counsel, and face greater language and communication barriers. The detention
standards are needed to address access to counsel and language issues.

Efforts must be made to ensure that detainees have access to adequate medical and social services, as well as recreational and
educational opportunities. Detainees should not be transferred away from their attorneys. The government should not house immigration
detainees in remote detention facilities, as it hinders their ability to secure legal representation. All immigrants in removal proceedings
should be appointed government counsel. Clear guidelines regarding parole policies should be implemented and consistently applied.
Such policies should provide all detainees with regular opportunities to present evidence and reasons for their release.

Asylum-seekers should only be detained if extraordinary circumstances are present. If they must be detained at all, it should only be on
a short-term basis in facilities appropriate to their unique needs and vulnerabilities. Asylum-seekers should never be detained in prisons
or commingled with criminal inmates. DHS should develop and implement uniform release policies for asylum-seekers who have
established a credible fear of persecution in their homelands.

Mandatory detention and expedited removal should be repealed. Detained immigrants with final orders of removal, who cannot be
returned to their countries of origin, should be released in compliance with the Supreme Court's decision in Zadvydas v. Davis. The DHS
should also explore and expand alternatives to detention, especially for those who, with supervision, would represent neither a flight
risk nor a danger to the community. (3)

footnotes

1. See CLINIC, "The Needless Detention of Immigrants in the United States" (August 2000); Office of the Inspector General, "Supplemental
Report on September 11 Detainees' Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York," December 2003,
available at http://www.usdoj.gov/oig/special/0312/index.htm; Amnesty International, "'Why Am I Here?' Children in US Immigration
Detention Suffer Mistreatment, Legal Barriers" (June 2003); Lawyers Committee for Human Rights, "Refugees Behind Bars: The
Imprisonment of Asylum Seekers in the Wake of the 1996 Immigration Act" (August 1999); Womens' Commission for Refugee Women and
Children, "Liberty Denied: Women Seeking Asylum Imprisoned in the United States" (April 1997) and "Behind Locked Doors: Abuse of
Refugee Women at the Krome Detention Center" (October 2002); Human Rights Watch, "Locked Away: Immigration Detainees in Jails in
the United States" (September 1998); Florida Immigrant Advocacy Center, Inc., "Krome's Invisible Prisoners: Cycles of Abuse and
Neglect" (July 1996).

2. INS News Release, "INS to Adopt New Detention Standards," November 13, 2000.
3. For more information on detention see CLINIC, "The Needless Detention of Immigrants in the United States," (August 2000).

RESOURCES

ACCCA Directory of Immigrant Detention Facilities (pdf).

DWN map

IMPORTANT INFORMATION: Immigration detention centers change rapidly and
individual detainees can be moved without warning, including to a remote or
out-of-state detention center. Call the detention center before visiting to verify that the
immigrant you wish to visit is still housed there. Bring a valid, government-issued ID for
clearance to enter the detention center. Persons without valid immigration documents
should never seek to visit a detention center, nor try to post bond for an immigration
detainee.

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