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MIGRATION-US: Strained Detention System a Virtual Black Hole

Marina Litvinsky

WASHINGTON, Mar 25 2009 (IPS) - The U.S. government has failed to uphold international human rights standards in its detention of immigrants and asylum seekers, Amnesty International USA (AIUSA) said in a report released Wednesday.

The report, “Jailed Without Justice: Immigration Detention in the USA,” shows that tens of thousands of people languish in U.S. immigration detention facilities every year – including a number of U.S. citizens – without receiving a hearing to determine whether their detention is warranted.

According to the report, in just over a decade, the number of immigrants in detention each day tripled from 10,000 in 1996 to more than 30,000 in 2008. Numbers are likely to increase in 2009.

The people detained include lawful permanent residents, undocumented immigrants, asylum seekers and survivors of torture and human trafficking.

“America should be outraged by the scale of human rights abuses occurring within its own borders,” said Larry Cox, executive director of AIUSA. “Officials are locking up thousands of human beings without due process and holding them in a system that is impossible to navigate without the legal equivalent of GPS.”

“The United States has long been a country of immigrants, and whether they have been here five years or five generations, their human rights are to be respected. The U.S. government must ensure that every person in immigration detention has a hearing to determine whether that detention is necessary,” he said.

The report contends that U.S. citizens and lawful permanent residents have been incorrectly subject to mandatory detention and spent months or years behind bars before proving they are not deportable. According to AIUSA’s research, at least 117 people have been held in mandatory detention for crimes that were ultimately determined not to be deportable offences.

Even more astounding, in 2007 alone, legal service providers identified 322 individuals in detention who may have been able to claim U.S. citizenship.

Mr. W., a U.S. citizen, was placed in immigration detention in Florence, Arizona. According to the Florence Immigrant and Refugee Rights Project, he was born in Minnesota and had never left the United States in his life. Because he was detained, he did not have access to his birth certificate, and was working in the prison kitchen for a dollar a day to earn the 30 dollars it would cost to order a copy of his birth certificate. Mr. W. was finally released after being detained for over a month.

Others who are lawful residents of the U.S. languish in detention for so long that they choose to go back to countries where they are at risk of being attacked or imprisoned.

L.N., 27, was born in Afghanistan and came to the U.S. with his family as refugees when he was seven years old. He was placed in deportation proceedings and held in mandatory detention because of a drug conviction in 2007. He began urinating blood not long after, and was experiencing constant fatigue, pain and discomfort. He was first seen by a doctor a month and a half later and after nine months, he had yet to receive any diagnosis or treatment.

He told Amnesty International that he is so frustrated and afraid that he is considering giving up his claim of citizenship and going back to Afghanistan in order to obtain medical care.

“When people who may well be citizens of the United States are desperate enough to be deported to countries they don’t even know, there clearly is a breakdown of disturbing proportions within the U.S. system of immigration detention,” said Sarnata Reynolds, AIUSA’s policy director for Refugee and Migrant Rights.

Because under U.S. law, individuals in deportation proceedings may secure counsel, but at no expense to the government, the vast majority of people – 84 percent – in immigration detention do not have a lawyer, and instead represent themselves. According to AIUSA, representation by legal counsel can have a significant impact on the outcome of an individual’s case. One study found that individuals are five times more likely to be granted asylum if they are represented.

For many immigrants, release from detention is out of reach because bonds are set impossibly high.

The report states that although immigration judges have the authority in some cases to release immigrants on their own recognizance or with a minimum bond of 1,500 dollars, reports indicate that the judges are now less likely to do so.

According to the Executive Office for Immigration Review (EOIR), in 2006, immigration judges in the United States declined to set bond in 14,750 cases. In 2007, the number increased to 22,254, and in the first five months of 2008, immigration judges had already refused to set bond in 21,842 cases.

To house the rapidly increasingly number of detainees, Immigration and Customs Enforcement (ICE) increasingly relies on contracts with state and county jails. Approximately 350 facilities hold up to 67 percent of all detained immigrants.

Amnesty International’s findings indicate that conditions of detention in many facilities do not meet either international human rights standards or ICE guidelines. Immigration detainees are often detained in jail facilities with barbed wire and cells, alongside those serving time for criminal convictions.

Immigrants are unnecessarily exposed to inappropriate and excessive restraints including handcuffs, belly chains, and leg restraints. Amnesty International received reports that some individuals have been subjected to physical and/or verbal abuse while held in immigration detention, in violation of international standards.

Immigrant detainees also find it difficult to get medical attention. At least 74 immigrants have died in detention during the last five years.

“Conditions in detention centres have been shown over and over again to be in violation of ICE standards and international law, but wholly absent is almost any accountability for these violations,” said Reynolds. “Immigration and Customs Enforcement must be held accountable and enact enforceable human rights standards to eliminate inappropriate and dangerous housing conditions.”

The AIUSA report, which launches the organisation’s campaign to promote and protect the human rights of immigrants, shows that the average cost of locking up an immigrant is 95 dollars per person, per day, or approximately 2,850 dollars per month, funded by taxpayers.

Alternatives to detention programmes, such as such as conditional release, reporting requirements, an affordable bond, or financial deposits, have been shown to be effective and significantly less expensive than holding people in immigration detention. A study of supervised release conducted by the Vera Institute in New York yielded a 91 percent appearance rate at an estimated cost of 12 dollars per person per day.

AIUSA calls on the U.S. government to implement its recommendations which include: ensuring that alternative non-custodial measures are always explicitly considered before resorting to detention; and ensuring the adoption of enforceable human rights detention standards in all detention facilities that house immigration detainees, either through legislation or through the adoption of enforceable policies and procedures by the Department of Homeland Security.

Though ICE has announced the publication of 41 new performance-based detention standards, which will take full effect in all facilities housing ICE detainees by January 2010, AIUSA maintains that “these are still only guidelines, don’t ensure compliance with human rights standards, and are not legally enforceable.”

“We are reviewing (the report) and are engaged in comprehensive review of detainee health care,” Cori Bassett, a public affairs officer at ICE, told IPS. “ICE has made appreciable gains by adopting detention standards,” she added, though “the care and treatment (of detainees) does not yet meet our standards of excellence.”

“(The Department of Homeland Security) and ICE is committed to measurable and sustainable progress and we pledge to ensure that it occurs,” she said.

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