Lack of Due Process for Immigration Detainees

The right to due process of the law is something that we take for granted as Americans. Although at times we may not feel that due process is achieved or that the criminal justice system is perfect, it is generally accepted and expected that due process is a right and is the goal. Except for a few limited rights specified in the Constitution, the rights this country is founded upon are not granted only to American citizens. They are extended to all within our borders. They are meant to give people peace, security, hope, and the structure they need to be happy, productive members of society. Because of these guiding principles and beliefs the United States has welcomed many waves of immigrants—people who made sacrifices to leave behind past circumstances, full of hope for a better life in a new home. This has occurred for centuries. Why then, is there a question about whether we will welcome and protect those fleeing from the direst of circumstances?

 According to the ACLU, “In 2011, the Department of Homeland Security (DHS) held a record-breaking 429,000 immigrants in over 250 facilities across the country,” and the numbers have only increased in recent years. Currently DHS “maintains a daily capacity of 33,400 beds, however, in the overwhelming majority of cases, detention is not necessary to effect deportations and does not make us any safer.”

In the Immigration Customs and Enforcement (ICE) 2010 report to Congress ICE reports that in fiscal year 2010 they detained 15,769 asylum seekers. In order to be granted asylum an applicant must prove that they are eligible by demonstrating that he suffered past persecution or has a well-founded fear of future persecution on account of his race, religion, nationality, membership in a particular social group, or political opinion. INA § 101(a)(42)(A). Additionally an applicant must show that he was either persecuted by the government or by an individual the government is unwilling or unable to control. In addition, an applicant for asylum must show that his fear of persecution is country-wide. See Acosta, 19 I&N Dec. at 235; Matter of Fuentes, 19 I&N Dec. 658, 663 (BIA 1988).

Therefore, ICE detains tens of thousands of people who have fled their home countries because of mistreatment and came to the United States for help. They were detained even though they had committed no crime, including an immigration crime. When they came to the border asking for asylum they were taken into custody and placed in a detention facility. Their personal belongings were taken from them, including money and identification. Often their belongings are never returned. In reports issued by the University of Arizona and a group called No More Deaths, it was reported that up to one third of the detainees never had their belongings returned to them. According to The Center for Victims of Torture, “in less than three years – from October 2010 to February 2013 – the United States detained approximately 6,000 survivors of torture as they were seeking asylum protection.” In an LA Times editorial the author cites an American Civil Liberties Union-commissioned analysis of 1,000 people detained for at least six months. The study found that the detainees “spent an average of 404 days — more than 13 months — in custody. Length of time varied: 86 detainees were held for more than two years; one was held for 1,585 days, or more than four years.”

An article published by the Migration Policy Institute stated, “asylum is a right of last resort for people who cannot count on their own governments to protect them, and are forced to flee their homelands and seek the protection of other governments.” This is a right that is protected in Article 14 of the Universal Declaration of Human Rights, which was signed by the United States.

Human rights law, including Article 9 of the Covenant on Civil and Political Rights, prohibits arbitrary detention, requiring that any detention must be in accord with procedures established by law. Article 31(2) of the Refugee Convention limits "restrictions" on the movements of refugees who enter territories illegally to "those which are necessary." The United States is not only detaining asylum seekers, but it is detaining them for unchecked amounts of time. We must do better!

Treatment of those seeking asylum is an issue that should interest and incite all members of the global community, but especially Americans. Americans who proclaim freedom; protection from tyranny; promoting the general welfare; and life, liberty, and the pursuit of happiness. It goes against these principles to exclude those who may need protection the most. We all come from immigrants at some point in our history. No matter what position you may hold as a prosecutor, defense attorney, or judge, you have a responsibility to stand up. This is an issue that must be resolved by Congress and in the individual hearts and acts of each person.

Kathryn Kimball

Blog Editor, Criminal Law Practitioner

Photo by Takver via Flickr