The U.S. Immigration and Naturalization Service (INS) is currently housing more than 60 percent of its 15,000 detainees in local jails throughout the country. Faced with an overwhelming, immediate demand for detention space, the agency has handed over control of its detainees to local sheriffs and other jail officials without ensuring that basic international and national standards requiring humane treatment and adequate conditions are met. INS detainees-including asylum seekers-are being held in jails entirely inappropriate to their non-criminal status where they may be mixed with accused and convicted criminal inmates, and where they are sometimes subjected to physical mistreatment and grossly inadequate conditions of confinement.
INS detainees are in administrative detention; that is, they are not serving a criminal sentence or awaiting trial on criminal charges. But since the INS has decided to contract with local jails and has refused to insist on separate, special treatment of immigration detainees who are held in these jails, an INS detainee's experience in a local jail is no different from that of a local inmate.
Asylum seekers, in particular, are protected by international refugee law and deserving of special treatment. Asylum seekers should never be held in local jails. In fact, international standards urge governments to detain asylum seekers only in exceptional cases. Nevertheless, the INS does not differentiate between asylum seekers and other immigration detainees, and they are sent to jails around the country without regard to their particular legal and psychological needs.
Holding INS detainees in local jails is an expensive endeavor for the federal government, but INS detainees are a desirable source of profit to local jails. Jails charge the INS between $35 and $100 per day, per detainee. The INS estimated that in 1997, it paid an average of $58 a day per detainee to local jails; this means that in a six-month period, more than $10,000 federal dollars are spent to hold just one INS detainee. In some states, local taxes have been eliminated due to the profit made through housing the INS's detainees.
Over the past eighteen months, Human Rights Watch has interviewed more than 200 INS detainees in fourteen local jails in seven different states. We have also received hundreds of letters and telephone calls from detainees held in local jails scattered around the country describing poor conditions and mistreatment. Human Rights Watch researchers have interviewed INS officials, jail officials, immigration judges, immigrant rights advocates, and attorneys representing INS detainees in immigration proceedings. This report also relies upon documents obtained from the INS through Freedom of Information Act requests, legal documents, and press reports.
Among our findings:
· The INS has failed to provide oversight or to insist on humane conditions and treatment in the local jails with which it contracts to hold INS detainees. There are no laws, federal regulations, or national INS policy governing how local jails holding INS detainees should be inspected and monitored. Once detainees are placed in a jail, INS contact with detainees is usually infrequent, even though they remain the INS's ultimate responsibility.
· Jail officials state that INS detainees "are treated just the same as regular inmates" even though INS detainees are held for administrative, not criminal, purposes and should not be subjected to punitive or rehabilitative treatment.
· The INS has begun to institute detention standards in its Service Processing Centers (SPCs) and contract facilities, but the standards are not being implemented at local jails, where the majority of INS detainees are currently held and where future increases in detention will be absorbed.
· Medical and dental care are substandard in many of the jails holding detainees.
· Access for legal representatives, family, and friends is severely curtailed by strict jail rules that are inappropriate for immigration detainees. As a result, many detainees do not have legal representation which undermines their ability to present their cases and removes a critical element of monitoring treatment of INS detainees in the local jails.
· Jail staff are often unable to communicate with INS detainees due to language barriers.
Many INS detainees interviewed by Human Rights Watch who were held at local jails have been subjected to physical mistreatment at the hands of correctional officers. In a dramatic case now unfolding, INS detainees held in Jackson County Jail in Florida alleged that jail officials administered electric shocks on shackled detainees in July 1998. Nine guards pleaded guilty or were convicted in 1998 for physically abusing INS detainees held in Union County Jail in New Jersey. INS detainees in local jails in California, Louisiana, New Hampshire, and elsewhere have held hunger strikes during the past year following incidents of alleged mistreatment and to protest poor conditions.
The detainees described in this report are in INS custody for a variety of reasons. Some are individuals fleeing persecution in their home countries who are seeking asylum in the United States; they are usually detained after arriving at a port of entry without proper documentation. Others have been picked up by the U.S. Border Patrol on the street or during workplace raids. Some detainees have served criminal sentences in the United States and are awaiting deportation to their home countries. Still others were detained by the INS after the 1996 immigration laws required that individuals who were previously sentenced to a year or more for certain criminal offenses (whether or not their sentences were suspended) be identified, detained, and deported.
The INS makes decisions about where to hold detainees and how often to transfer them based primarily on availability and cost of bed space in local jails. It rarely considers detainees' family ties or legal representation. For example, individuals may be taken into INS custody at an airport or workplace in New York, sent to a jail in Pennsylvania and then find themselves in rural Louisiana to await a court hearing or appeal decision. Furthermore, INS detainees are frequently transferred from one jail to another without warning or justification. Some detainees have been held in as many as eight jails and facilities in a year's time: the detainees receive little, if any, prior warning of their moves no reason for the relocation, no opportunity to notify family members, and, if the detainee is represented by an attorney, the attorney is rarely notified of the transfer. The transfer may be to a nearby jail or to a jail in a state thousands of miles away.
Many detainees interviewed by Human Rights Watch were confused, frustrated, or scared by their situation. They did not know the status of their immigration cases or when they would have a hearing, why they were being held in jails, or how to get legal assistance. They believed they were forgotten by the INS, which rarely has staff on site at jails and is not responsive to detainees' requests for information about their cases. Frequent transfers only exacerbated their confusion.
In addition, long periods of incarceration with little to do and no knowledge of when they would released caused severe emotional distress in many detainees. Mental health needs of detainees are not adequately met, and distressed suicidal detainees are often treated by jail officials as disciplinary problems. Many expressed anxiety over being held with accused or convicted criminals; some detainees were so ashamed of being held in a prison-like situation that they did not contact their families.
Some immigration detainees cannot be deported because they are stateless, or because neither their own country nor any third country will accept them. Human Rights Watch believes that when immigration detainees are held indefinitely and do not know when, if ever, they will be released, their detention becomes arbitrary even if the initial detention was carried out in accordance with law. Most individuals indefinitely detained are citizens of countries with which the United States has limited or no diplomatic relations or which simply refuse to accept their citizens who have emigrated or fled. Other detainees are held indefinitely because they are "stateless" meaning that no legal state will recognize their nationality. Given the fact that jails are designed to be punitive and rehabilitative institutions, and considering the extremely poor conditions in many of the jails in which INS detainees are held, this form of detention differs very little from an open-ended criminal sentence.
Despite the shortage of detention space, and the frequently inhumane and costly "short-term" solutions now in place, the INS has been slow to develop release programs or to utilize alternatives to detention that already exist. For example, the INS's parole plan for asylum seekers, called the Asylum Pre-Screening Officer program (APSO), has suffered from insufficient funding and inconsistent application by INS district directors. The INS has also contracted with the Vera Institute of Justice to undertake a pilot program of supervised release of immigrants (not only asylum seekers) in removal proceedings in the New York City and Newark, New Jersey INS districts. The program allowed the Vera Institute to screen immigrants after they were apprehended by the INS, to choose those who meet certain criteria, and to assist and supervise them during immigration hearings. Initial results indicate that the project is an effective alternative to detention; more than 80 percent of the participants are complying with all court appearances. Still, the INS has limited the program of the Vera Institute geographically and does not currently allow asylum seekers who have proven a credible fear of persecution in removal proceedings to be considered for release.
General Recommendations:
· Detention facilities used by the INS should reflect the non-accused, non-criminal status of all INS detainees. Therefore, the INS should not house its detainees in local jails, prisons, or any other facility intended to hold criminal populations.
· Asylum seekers, as a general rule, should not be detained. The right to seek and enjoy asylum is a basic human right; individuals must never be punished for seeking asylum in the United States.
· Until the INS ceases using jails to hold its detainees, those detainees should be held in sections of the jails separate from accused and criminally convicted inmates.
· Given the shortage of detention space readily available to the INS and the tremendous human and financial costs of contracting with local jails, non-custodial alternatives to detention should be explored before any decision to detain an individual is final.
· The INS must implement detention standards immediately and must require that any jail with which it contracts meets the treatment and condition requirements.
· For reasons beyond their control, many INS detainees are held indefinitely because they are stateless or are nationals of a country with limited, or no, diplomatic relations with the United States. The INS must address the problem of indefinite detention and implement release programs for those with no hope of being returned to their countries of origin.
· The INS must participate in any jail disciplinary proceedings against INS detainees that would adversely affect the conditions or treatment for their detainees.
Detention of Immigrants
· All detention facilities used by the INS should reflect the non-accused, non-criminal status of all INS detainees. Therefore, the INS should never house its detainees in local jails, prisons, or any other facility intended to hold accused or convicted criminal populations.
· Given the shortage of detention space available to the INS and the tremendous human and financial costs of contracting with local jails, non-custodial alternatives to detention should be implemented before a decision to detain an individual is final. The INS should develop these alternatives in consultation with nongovernmental organizations with expertise in meeting the legal, cultural, and psychological needs of INS detainees. Non-custodial alternatives may include unconditional release or conditional release. Conditional release includes: supervised release to community organizations or family members; regular reporting requirements; or bail or bond options.
· All decisions to detain immigrants should be automatically and promptly referred for review to a judicial or other competent authority. A review should consider the legality of the decision to detain and the substantive need for detention; it should also require periodic review to prove a compelling need to prolong detention. Detainees and their legal representatives should have the right to attend all review hearings and to present evidence to demonstrate their case.
· All places of detention used by the INS must be specialized facilities intended to hold only INS administrative detainees. Detention conditions must reflect the non-criminal status of detainees and, at a minimum, must conform with the international standards regarding individuals in administrative detention found in the United Nations Standard Minimum Rules for the Treatment of Prisoners and the United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
· The INS should maintain current statistics about the number of people in detention; the number of asylum seekers in detention; length of detention of asylum seekers and other immigrants; and the number and location of all facilities, including local jails, used to hold detainees. All such statistics should be made publicly available.
Detention of Asylum Seekers
· Asylum seekers, as a general rule, should not be detained. The right to seek and enjoy asylum is a basic human right; individuals must never be punished for seeking asylum in the United States.
· Detention of asylum seekers is inherently undesirable. All decisions to detain asylum seekers must be made on a case-by-case basis. Detention is justified only when it is strictly necessary to: verify an asylum seeker's identity to a reasonable and practicable extent under the circumstances; determine whether an asylum seeker is asserting elements upon which a claim for asylum could be based; or protect national security, enforce criminal law, or protect public safety in the same circumstances and with the same legal protections afforded U.S. citizens. Detention may also be justified when an asylum seeker has a history of repeated or unjustified failures to comply with reporting requirements imposed by the INS or the immigration court, or has failed to leave the country following the exhaustion of all appeal procedures.
· Detention of asylum seekers should not be based on the unwitting or necessary use of false documents required in order to flee persecution and gain access to the United States where they are seeking protection.
· Asylum seekers may only be detained after meaningful opportunities for release have been utilized by the INS.
· The Asylum Pre-Screening Officer (APSO) program, allowing unsupervised parole of asylum seekers who illustrate a credible fear of persecution, should be fully and consistently employed in all thirty-three INS districts. INS headquarters must monitor implementation of the APSO program; INS districts with low release rates should be reviewed and misguided practices should be corrected.
· The INS should also continue to develop and implement alternative supervision or reporting systems. These alternatives could include secure shelter care, group homes, or individual sponsorship by nongovernmental organizations. Joint initiatives between the INS and other non-profit groups, such as the Appearance Assistance Program of the Vera Institute of Justice, should be supported and expanded in all INS districts.
· Asylum seekers in expedited removal proceedings who are found to have a credible fear of persecution in their countries of origin should not be detained unless specific security concerns, which individuals must have a right to know and rebut, can be proven.
· When detained, asylum seekers should never be held in jails, prisons, or prison-like situations and should never be commingled with accused or convicted criminal inmate populations. They should be held separately from other INS detainees.
Detention Conditions for All Detainees
· The INS should create comprehensive national standards applicable to all facilities in which INS detainees are held. These standards should be applicable to local jails for as long as they are used by the INS. All written detention standards already issued by the INS for Service Processing Centers and contract facilities should be immediately extended to all INS detainees held in local jails.
· All final detention standards should be promulgated as federal regulations and subjected to a public comment period.
· The INS should create a detention oversight office in its headquarters to create and implement detention standards, to monitor detention conditions and treatment of INS detainees, and to ensure compliance with minimum standards of treatment.
· All jails used by the INS should be inspected at least every six months. Additional unannounced inspections should take place in the interim. When a particular facility fails to meet any of the enumerated national detention standards, it should be given until the next inspection to remedy all shortcomings. If at the time of the subsequent inspection a jail continues to fail to meet the required standards, the INS should terminate its contract with the facility.
· Given the growing immigrant detainee population and the increasing concerns about their treatment, the INS should create an Advisory Commission on Immigration Detention. The commission should include representatives from the INS's Office of Field Operations and the proposed detention oversight office, as well as representatives from regionally diverse nongovernmental and legal organizations with demonstrated concern and knowledge about conditions and treatment in detention. The commission should have access to all detention-related records of the INS, including contracts with local jails and complaints filed by INS detainees regarding inadequate conditions and physical abuse in detention (see reporting requirements below) in order to monitor all places of INS detention, including Service Processing Centers, contract facilities, jails, prisons, or other facilities where INS detainees are held.
The commission should meet quarterly and should, among other duties: review the INS's facility inspection reports; identify patterns in types of complaints or recurring problems at certain facilities; investigate select complaints; share information with each other about emerging issues of concern and plans for addressing those concerns; and monitor implementation of detention standards. When patterns of poor conditions or mistreatment ofINS detainees emerge in a particular facility, the commission may recommend that a particular contract be terminated.
When serious allegations are brought to the commission's attention that may be criminally prosecutable, the commission should refer the information to local and federal prosecutors for possible action. When patterns of abuse or substandard conditions are detected, that information should be provided to the Civil Rights Division's Special Litigation Section.
Minimum Standards Required in All INS Contracts with Local Jails
Local jails are inappropriate places to hold asylum seekers and immigrants, but until their use by the INS is terminated, all new and existing contracts between the INS and local jails must require that each jail is capable of, and continues to meet, the following minimum conditions:
· INS detainees should never share cells or living areas with local inmate populations in the jail facility.
· Local facility handbooks that clearly outline detainees' rights and responsibilities should be given to all detainees upon entering a jail. Handbooks should be available in the languages of the detainees likely to be detained there. For detainees who speak a language for which no translation is available, as well as for those detainees who are illiterate, the handbook should be read to them and an acknowledgment form signed indicating that they have understood their rights and responsibilities. Handbooks should include instructions about how to file a complaint regarding conditions or treatment.
· Physical restraints (e.g. shackles, four-point restraints, handcuffs, restraint chairs) and solitary confinement should never be used to punish INS detainees.
· Physical restraints may be used only as strictly necessary to protect INS detainees who are a danger to themselves or others. Whenever restraints are used on INS detainees, the local INS district office must be notified within one hour and any continued use must be justified by jail officials and authorized by the INS.
· Complaint procedures should be in place to allow detainees to lodge complaints regarding conditions of detention or mistreatment by officials, inmates, or fellow detainees. Complaints received by jail staff should be immediately forwarded to the local INS district office. Jail staff should respond to complaints in a fair and timely manner and must fully explain their responses. All responses must also be forwarded to the local INS district office and the proposed detention oversight office in INS headquarters.
·Medical screening should be completed upon a detainee's arrival at a jail to detect mental and physical health needs. Special attention should be given to individuals who may have suffered trauma due to experiences in their countries of origin and should include detection of suicide risk. Medical staff should be trained on the special problems of asylum seekers, including the risk of trauma-induced illnesses, and should be trained to screen for sexual and gender violence. Daily access to regular medical care and mental health counseling and 24-hour emergency care should be available. Interpreters should be available in person or by phone for all medical visits.
·Health and gynecological needs of female detainees should be met, including access to female health service providers and female interpreters, access to routine gynecological exams and obstetrical services, and provision of basic needs such as sanitary supplies.
·Full dental care should be provided and should include restorative surgery or fillings. Dental care should not be limited to extractions.
·A current and accurate list of local organizations that provide immigration advice and legal representation should be given to every detainee upon entering the facility. Additionally, an updated legal service provider list should be posted next to every pay telephone used by INS detainees.
· Law libraries with updated immigration legal materials should be created and maintained. Available materials should include the list of reference material in the INS detention standards on legal materials issued in January 1998. Photocopiers should be available to copy legal papers and other relevant jail paperwork.
· Detainees should have generous access to telephones in private, quiet areas that allow free local calls. Free calls, even if long-distance, should be allowed in special circumstances such as family emergencies, to contact out-of-state legal counsel, and to contact embassies and consulates. All telephones should also allow international collect calls and toll-free calls. Telephones should not be programmed with an automatic cut off after a certain period of time, and if they are, multiple consecutive calls must be allowed. Pre-arranged incoming calls from legal representatives of other detainee advocates must be allowed and facilitated by jail officials.
· A minimum of one hour daily outdoor exercise should be permitted.
· Religious practices should be allowed and facilitated and adequate space for religious services provided. Religious practices include: the right to be visited by a representative of a particular religious denomination; the right to have any special diets based on religious beliefs respected and accommodated; the right to wear religious apparel; and the right to receive religious materials.
· Detainees should be allowed to participate in all educational, vocational, and other programs available to criminal inmates, but jail officials should understand that criminal rehabilitation is not an appropriate goal of administrative detention.
· Detainees should be allowed, but not required, to work in the jail in the same circumstances and under the same conditions as local inmates.
· Jail officials should be specially trained on the needs of asylum seekers and immigration detainees. Some staff should be able to speak the languages of detainees, or detainees should be transferred to a facility where staff are able to communicate with them.
· Jails should create generous visitation policies for INS detainees. Contact visits should be allowed, minor children should be allowed to visit, and visits should be for a minimum of two hours and extensions should be allowed if circumstances warrant. INS detainees should not be required to place visitors on a visitation list. Restrictions on visitors should be limited to requirements of proof of identity and detainee consent.
· Legal representatives should be allowed to visit by producing only the name of a detainee; no proof of legal representation should be required. Certified representatives and paralegals should be allowed legal visits on the same terms as attorneys, along with interpreters, medical personnel, or others assisting in the legal visit.
· Representatives of nongovernmental organizations wishing to visit a detainee should be required only to present proper identification of organizational affiliation and the name of the detainee they wish to visit.
· Reasonable media access should be allowed and journalists should be permitted to interview INS detainees with detainees' consent. Freelance and independent journalists should be accorded the same access as members of major newspapers or television networks.
Monitoring Local Jails
· An INS officer should be placed at each local facility to assist detainees and monitor conditions of confinement, allegations of mistreatment, and the use of disciplinary sanctions.
· Copies of all complaints filed by INS detainees held in local jails must be immediately forwarded by jail officials to the INS. All responses by jail officials must be in writing and must be sent simultaneously to the detainee, a designated person in the local INS district office, and the proposed detention oversight office in INS headquarters. When jail officials consider a matter satisfactorily resolved (or when the detainee has exhausted all appeals procedures), the INS must contact the detainee to ensure that he or she agrees with and accepts the resolution, and continue to negotiate with jail officials until the detainee and the INS feel that the matter complained of has been satisfactorily resolved.
· Whenever a local facility decides to take disciplinary action against a detainee that will result in disciplinary segregation lasting more than twenty-four-hours, an INS officer must participate in the hearing, approve any sanctions authorized, and participate in a written appeals process. When a pattern of arbitrary or excessive discipline of INS detainees emerges at a jail, the INS must terminate its contract with the facility.
· Local jails must be required to notify the INS and provide all relevant documentation every time a detainee is assaulted or injured, either by jail staff, criminal inmates, or other INS detainees.
· Local facilities should be required to provide the INS with copies of all complaints made against jail employees by the general public, attorneys, or other private or public interest groups.
· Before contracting with a local jail, the INS should be required to investigate any indictments, convictions, or administrative complaints brought against jail employees for misconduct during the previous five years. The INS should request from the Department of Justice's Civil Rights Division a list of all civil rights investigations and cases brought under Title 18 of the U.S. Code, sections 241 and 242, regarding local jails that house INS detainees. The INS should examine the physical facility and interview jail staff and local inmates. If there is credible evidence of jail misconduct, a contract should not be entered into.
To the U.S. Congress:
· The U.S. Congress should pass legislation requiring that all decisions to detain immigrants be automatically and promptly referred for review to a judicial or other competent authority.
· The U.S. Congress should also pass legislation requiring the INS to create federal regulations establishing minimum standards for all immigrants in INS detention. National standards should comply with international standards for administrative detainees. It should mandate time limits on detention and authorize parole for immigrants whose deportation cannot be secured once it is final (as in the case of Cubans and other non-removable immigrants). The legislation should require that asylum seekers be detained only as necessary to determine whether or not a claim for asylum has been asserted, or if they are proven to be a danger to national security. Further, the legislation should demand that asylum seekers are never held in local jails or other prison-like situations.
·Concerned Members of Congress should request that the General Accounting Office initiate a study into the use of local jails by the INS. The study should produce information on the number of detainees held in jails, including the number of asylum seekers; the number and location of all jails used; the per diem rates paid by the INS; the length of detention; transfer policies; language abilities of local jail staff; compliance with INS detention standards and American Correctional Association guidelines; and compliance with international and domestic standards on the treatment of administrative detainees. A study should also examine the cost-effectiveness of the current detention system's reliance on local jails.
To the Civil Rights Division of the Department of Justice:
· The Civil Rights Division's Special Litigation Section should investigate complaints of poor treatment and conditions of confinement of INS detainees in local jails. Given our findings, special attention and investigation should promptly be initiated in several local parish prisons in Louisiana.
To the Working Group on Arbitrary Detention of the U.N. Human Rights Commission:
· The Working Group on Arbitrary Detention should issue written guidelines, in consultation with nongovernmental organizations and detention experts, that delineate the minimum standards owed to administrative immigration detainees. The guidelines should be use to measure and monitor the United States's treatment of immigration detainees.
· The Working Group on Arbitrary Detention should investigate the use of local jails by the INS to assess whether the United States is meeting the standards of treatment owed to administrative immigration detainees. The findings should be presented to the Human Rights Commission by the annual assembly in 2000.
To the United Nations High Commissioner for Refugees (UNHCR):
·The United Nations High Commissioner for Refugees should continue to revise and strengthen its Guidelines on the Detention of Asylum Seekers. For example, exceptions to the general rule that asylum seekers should not be detained should be narrowed and limited to strict necessity on a case-by case basis.
· The UNHCR should be proactive in urging the U.S. government to bring detention policies in line with standards contained in the UNHCR guidelines and international standards on the detention of asylum seekers.
· The UNHCR should monitor, investigate, document, and make public any abuses committed against INS detainees in the United States.
To the Organization of American States (OAS):
·The Human Rights Commission of the Organization of American States should monitor the treatment and conditions of confinement of immigration detainees in the United States, especially asylum seekers and individuals detained indefinitely. The OAS should call on the United States to respond to any findings of inadequate conditions of confinement or instances of physical mistreatment including those identified in this report.
· The Annual Review of the OAS Human Rights Commission should contain a special section on the treatment of INS detainees.
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