Torture by Another Name: Immigrant Detention in the United States

U.S. immigration enforcement practices violate internationally recognized human rights. They have for years. However, under the Trump administration the scale of violations has grown, with increases in mass arrests that ignore asylum claims, expansion of detention under conditions that are inhumane, and a recent spike in the use of family separation as a tactic to further punish migrants. These practices dehumanize migrants. And in combination, might well constitute torture.

In February an advance copy of a report on migration from Nils Melzer, the United Nations’ Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, was released. While the report does not name specific states, the multitude of examples of violations of core principles of human rights in the treatment of migrants reads like a summary of U.S. immigration policy.

In response to increasing numbers of..."irregular" migrants arriving at their borders, many States have initiated an escalating cycle of repression and deterrence designed to discourage new arrivals, and involving measures such as the criminalisation and detention of irregular migrants, the separation of family members, inadequate reception conditions and medical care, and the denial or excessive prolongation of status determination or habeas corpus proceedings, including expedited returns in the absence of such proceedings. Many States have even started to physically prevent irregular migrant arrivals, whether through border closures, fences, walls and other physical obstacles, through the externalisation of their borders and procedures, or through extra-territorial "pushback" and "pullback" operations, often in cooperation with other States or even non-State actors. (Melzer 2018, 4)

The United States is a signatory to the International Covenant for Civil and Political Rights and therefore bound by the Covenant’s principles. Article 7 of the ICCPR states “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The UN Special Rapporteur’s report on migration makes clear that States that employ punitive measures such as prolonged and arbitrary detention, family separation, and that fail to provide safe conditions for migrants under administrative hold violate this standard. This assessment would include the practices of the United States. Even more so, it is the clear intent of U.S. policy makers to deter people from migrating to the United States and/or seek asylum here; a motivation that calls into question the entire edifice of U.S. immigration enforcement.

The issues here are numerous. For the purposes of this article I will focus on the ways U.S. law and practices concerning immigrant detention violate international human rights through arbitrary detention practices, inhumane conditions, and the breaking up of families.

Arbitrary Detention

Immigrant detention as practiced in the United States violates human rights law through deprivation of liberty, in often unsanitary or unsafe circumstance, for indefinite periods of time, and on an arbitrary basis without reference to individualized assessment. According to Melzer’s review:

Just as any other form of deprivation of liberty, any detention of migrants must be justified for each individual as lawful, necessary and proportionate in the circumstances and, in case of administrative or preventative detention, must be periodically re-assessed as it extends in time.  Provided that these generic conditions are met on an individual basis, "(a)sylum seekers who unlawfully enter a State party’s territory may be detained for a brief initial period in order to document their entry, record their claims and determine their identity if it is in doubt. To detain them further while their claims are being resolved would be arbitrary in the absence of particular reasons specific to the individual, such as an individualized likelihood of absconding, a danger of crimes against others or a risk of acts against national security. The decision must consider relevant factors case by case and not be based on a mandatory rule for a broad category; must take into account less invasive means of achieving the same ends, such as reporting obligations, sureties or other conditions to prevent absconding; and must be subject to periodic re-evaluation and judicial review."  

Over the last 24 years the United States has consistently increased immigrant detentions - criminalizing irregular border crossings, including by those seeking political asylum. Immigrant detentions have grown nearly 600% between 1994 and 2017 - from daily average detention of 6,785 migrants in 1994 to 41,000 in 2017.  In direct violation of international law, over 70% of detainees are subject to mandatory detention as a class - there is no individualized assessment prior to detention in these cases. Detentions are thus arbitrary, giving no weight to due process. Indeed, just last week the Supreme Court ruled that immigrants may be detained indefinitely with no mandatory periodic review for bail. This is a ruling that denies the most basic due process rights, and thus allows for the further institutionalization of practices that violate international law.

In addition to people held in detention facilities, there are an additional 15,000 migrants being held in federal prisons on any given day after being prosecuted for “illegal entry” violations. A joint report by Grassroots Leadership and Justice Strategies documents violations that emerged from Operation Streamline and related policies that have criminalized migration. They note:

Almost 70,000 migrants — including some who may have had valid asylum claims — were criminally prosecuted at the border, during federal fiscal year 2015. Improper entry and re-entry are now the two top criminal charges being filed in our federal court system; together they comprise 49 percent of the entire number of the cases led for federal prosecution nationwide.

Once released from federal prison, migrants may be transferred to ICE for detention until their asylum cases are reviewed - leading to additional months of incarceration. Criminally prosecuting people who self-identify to border agents as seeking political asylum is a violation of international law. Again there is no individualized discernment.  As Human Rights First has documented:

[Border Patrol] agents in sectors along the border indicated that they refer people for prosecution irrespective of their intention to seek asylum. It appears that prosecutors and judges do not take asylum into account when determining the charges or sentences for illegal entry or illegal reentry. In the four federal court districts Human Rights First visited, not one U.S. Attorney’s Office had a policy of exempting asylum seekers from charges of illegal entry or illegal reentry.

Migrants who attempt to present details of their case for asylum in federal court are told the court has no jurisdiction and that such determinations must wait until AFTER they serve their sentence for illegal entry. Hearings in which migrants are charged en masse are common.  Additionally, Human Rights First found that, “Operation Streamline combines each defendant’s initial appearance, preliminary hearing, plea, and sentencing into one hearing that can last less than one minute.”

Human Rights First reports that the Trump administration’s orders to expand these practices violate international human rights:

These directives subvert U.S. treaty obligations that prohibit the penalization of refugees for unauthorized entry or presence—protections created in the wake of World War II after many nations treated refugees seeking asylum in their countries as “illegal” entrants. As a result, asylum seekers are subjected to a deeply dehumanizing system that punishes them for seeking protection and threatens to return them to countries where they will face persecution—a violation of the Refugee Convention.

Detention Conditions Constitute Inhumane Treatment

Conditions in detention facilities vary. As detentions have expanded, however, there are increasing reports of deplorable conditions. Melzer writes that inhumane conditions in detention are a violation of rights and border on torture.

The Human Rights Committee has repeatedly considered that "the combination of the arbitrary character of the [...] detention, its protracted and/or indefinite duration, the refusal to provide information and procedural rights to the [detainees] and the difficult conditions of detention are cumulatively inflicting serious psychological harm upon them, and constitute treatment contrary to article 7 of the Covenant." Indeed, the experience of being subjected to detention that is neither necessary nor proportionate to serve any legitimate purpose, particularly in conjunction with its prolonged and potentially indefinite duration, and with the absence of any effective legal remedy has been shown to add significant mental and emotional stress to the already extremely vulnerable situation of irregular migrants, with many cases reported of self-harm, post-traumatic stress disorder, anxiety and depression.

In December of 2017 the Office of Inspector General for the Immigration and Customs Enforcement released its report on detention conditions. The OIG found, “problems that undermine the protection of detainees’ rights, their humane treatment, and the provision of a safe and healthy environment.” They noted that,

[u]pon entering some facilities, detainees were housed incorrectly based on their criminal history. Further, in violation of standards, all detainees entering one facility were strip searched. Available language services were not always used to facilitate communication with detainees. Some facility staff reportedly deterred detainees from filing grievances and did not thoroughly document resolution of grievances. Staff did not always treat detainees respectfully and professionally, and some facilities may have misused segregation. Finally, we observed potentially unsafe and unhealthy detention conditions.

Humans Rights First also released a report last week on conditions found in detention facilities in New Jersey. The report, Ailing Justice, includes the following general findings:

• Many asylum seekers and immigrants remain in unnecessary, lengthy, and prolonged detention—some for over a year—due to a lack of access to viable release mechanisms;
• Detention harms their medical and mental health, creates barriers to access to counsel, and hurts their chances of securing relief from deportation;
• Asylum seekers and other immigrants languish under harsh and inhumane conditions, conditions essentially identical to those in many criminal correctional facilities. Many detained immigrants, particularly non-English speakers, endure frequent racist comments, harassment, and discrimination from medical and correctional staff;
• Many detained people report substandard or denial of medical care, long waits to be seen by a medical professional, and a lack of proper medication.

Evidence from other sites make clear there is a pattern of inhuman conditions at facilities throughout the country. The Southern Poverty Law Center documented violations at facilities throughout the southern United States. An LA Times report similarly found deplorable conditions at facilities in California.

The stress that people are put under in detention centers is enormous, and yet it is unnecessary. Community release programs have proven to be highly effective for ensuring people return for hearings on their status. When it occurs, immigrant detention is supposed to be a temporary administrative hold. Immigrants are not criminals! To treat migrants in such a highly punitive manner is a violation of internationally recognized rights, and has the impact of creating (or exacerbating existing) mental health trauma. There were three suicides at the facilities in New Jersey last year, and in just the last six months, a dozen emergency mental health calls. Almost all those detained exhibit signs of stress. The conditions are poor, they do not know when they will be able to leave, and often have limited or no access to counsel. It is a level of cruelty that is shocking when meted out against people who are simply trying to make a life, and in many cases have already fled incredible violence!

Family Separation and Detention of Children

Among the unnecessary cruelties visited upon some migrants to the United States is the detention of children and/or the removal of children from parents. Melzer argues that:  

the possibility of detaining children as a measure of last resort, which may apply in other contexts such as juvenile criminal justice, is not applicable in immigration proceedings as it would conflict with the principle of the best interests of the child and the right to development. Accordingly, the detention of children based solely on their own or their parents' irregular migration status has authoritatively been found to be arbitrary.

Nevertheless, the United States routinely detains children and families. The practice of family detention has been widely criticized, and yet seems to be accelerating. The Trump administration’s decision to end “catch and release” programs means that individuals and families detained at the border are no longer released to families or organizations within the U.S. pending a hearing on their immigration status. The practice, like general detention practices, is arbitrary, absent individualized assessments.

The current administration’s efforts to ramp up federal prosecution of migrants who cross the border, under the direction of Attorney General Jeff Sessions, leads to an even more tragic situation in which children are removed from their parents’ care. If a family is detained at the border, and parents charged with a federal crime, the parents end up in federal prison awaiting trial. Children are then removed to juvenile detention facilities, often hundreds of miles away. Communication between children and parents is minimal. Parents find themselves in the position of desperately looking for children, even as they are themselves literally behind bars. Even in cases where parents are not being criminally prosecuted, children might be separated.

In December a coalition of organizations including the Immigration Justice Campaign, Lutheran Immigrant and Refugee Services, and RAICES, among others, filed a complaint with the Department of Homeland Security over family separation incidents that appear to have increased dramatically over the second half of 2017. The authors of the report argue, “[f]amily unity is recognized as a fundamental human right, enshrined in both domestic and international law. The U.S. Supreme Court has held that the right to family unity is 'perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court.'”  Despite this fundamental right, reporting organizations, “have noticed an alarming increase in instances of family members who arrived together but were intentionally separated by U.S. immigration officials without a clear or reasonable justification, as a means of punishment and/or deterrence and with few to no mechanisms to locate, contact, or reunite with separated family members.”

There are clearly inadequate guidelines in place for managing family separation. As the authors argue:

DHS and its components have consistently demonstrated that they are unable to manage the separation of family members in a legal and ethical manner. Family members are given little to no information on what happens to those from whom they are separated, including how to locate, contact, or reunite with them. DHS and its components continue to lack the ability to track familial relationships of individuals who are transferred to Immigration and Customs Enforcement (ICE) custody or to coordinate mechanisms to work with ORR within the Department of Health and Human Services (HHS) or the Department of Justice (DOJ) to facilitate location of, contact with, or release and reunification with separated family members.

The lack of care involved in the treatment of the most vulnerable is shocking. In April of 2017, Lutheran Immigrant and Refugee Services, KIND, and the Women’s Refugee Commission released a report on family separation practices that demonstrates the lack of coordination across the agencies involved, leading to an inability to track family members and seemingly no concern given to the relationships between children and their parents. Authors argue:

Family unity is important not only to maintain the integrity of the family unit, but also because its destruction has a detrimental impact on liberty, access to justice, and protection. It also negatively impacts emotional and psychological development and well-being, creates security and economic difficulties, and strips the dignity of an individual and their family as a whole.

It is clear that the institutional weaknesses (and seeming lack of concern) have not been addressed, even as the practice of family separation has increased. Though specific motivations for increasing this tactic are not given by DHS, “in early March 2017, then DHS Secretary Kelly stated that the department was formally considering a policy of separating children from their parents at the border in order to deter their migration to the United States.” Though Kelly backed off this threat during later Congressional testimony, current practice suggests the DHS is sending a message: If you try to come to the United States seeking protection, you may lose your children.

Conclusion

The bulk of U.S. immigration law and enforcement practices that target irregular migration violate international law. While the Trump administration is doubling down on some of the worst violations, this administration was also handed an institutional framework for immigration enforcement that was already deeply flawed. Reference to international law rarely moves U.S. policy makers, who by and large view human rights law as an infringement on sovereignty. Indeed, in ratifying the International Covenant on Civil and Political Rights the U.S. congress attached reservations to Article 7 bans on torture and cruel and unusual punishment. However, it is important for us to understand that ongoing U.S. violations have the effect of undermining enforcement of human rights globally.

The Trump administration is requesting a 25% expansion of detention capacity in the coming fiscal year - which will increase average daily detention to 50,000 people! Arrests and criminal prosecutions under federal law are increasing. Family separation as a tactic seems to be increasing based on the assessment of organizations that work with migrant families. The conditions under which migrants are held have been shown to be inadequate, even by the DHS’s own Office of Inspector General. All of these practices violate international human rights law, and in some cases, U.S. law. People have a fundamental right to migrate, to seek asylum, and to live free of inhumane treatment. U.S. immigration policy fails to respect these rights.

The United States war on migration must end. It is clear that it will only end if people mobilize in solidarity with migrants being detained and force policy makers to change tactics. There is limited legal recourse domestically - and the Trump administration seems determined to ignore what standards exist, or press the law to its limit, all in order to score political points by scapegoating migrants. We must all push back against these efforts and demand a fundamental respect for the human rights of migrants.

An immigrant detained in New Jersey told investigators, “I came to the United States because I considered it to be a fortress of human rights, but now I know the opposite.” This is our country today. We must change.