IACHR Report on Immigration in the United States: Detention and Due Process
- Friday, March 18, 2011 |
- Written by Adiyah Ali
-
Inter-American Commission on Human Rights (IACHR)
Report on Immigration in the United States: Detention and Due Process December 2010
March 18, 2011 Summary
The Inter-American Commission on Human Rights (IACHR) report on immigration in the United States is interesting on many fronts, but at KIND, we were particularly pleased to read about the IACHR's reporting and recommendations on unaccompanied children in the United States. The report recommends appointing pro bono counsel to unaccompanied children and ensuring that shelters in which they are housed are located in urban areas with access to vital services including legal, medical, mental health and others.
We've summarized the report below, including the sections on unaccompanied children:
Download the full report as a PDF
In an effort to observe the conditions under which immigrants are held in detention, during the week of July 20-24, 2009, a delegation from the IACHR visited the following detention centers in Arizona and Texas:
- Southwest Key Unaccompanied Minor Shelter (Phoenix, Arizona)
- Florence Service Processing Center (Florence, Arizona)
- Pinal County Jail (Florence, Arizona)
- T. Don Hutto Family Residential Center (Taylor, Texas)
- Willacy Detention Facility (Raymondville, Texas)
- International Education Services Unaccompanied Minor Shelter (Los Fresnos, Texas)
The report is divided into three main sections: (1) Relevant International Standards on the Human Rights of Immigrants, (2) Observations and Concerns Regarding Immigrant Detention, Detention Conditions and the Effect on Due Process and (3) Conclusions and Recommendations.
Relevant International Standards on the Human Rights of Immigrants
Migrant families and unaccompanied children
- The mandatory detention of a child's mother or father must be considered on a case-by-case basis…with the "best interest of the child" in mind. (p. 18)
- Families and pregnant women should not be detained (and if they are detained, it should not be in prison-like conditions) (p. 18)
- UACs should not be detained - "The principle of exceptionality governing deprivation of liberty in general and deprivation of liberty for immigrant violations, carries even more weight when children are involved." (p. 18)
Adherence to UN principles for the detention of unaccompanied children
- Article VII of the American Declaration recognizes every child's right to "special protection, care and aid." (p. 31)
- Article 37 (d) of the United Nations Convention on the Rights of the Child provides that "every child….have the right to prompt access to legal and other appropriate assistance…" (p. 31)
Observations and Concerns Regarding Immigrant Detention, Detention Conditions and the Effect on Due Process
Access to legal resources
- Limited resources: IACHR was troubled by the limited resource and the limited access to those resources at each of the centers it visited. (p. 117)
- Pro Se: Many detained immigrants have to represent themselves during immigration proceedings, which in itself constitute a considerable disadvantage when many of them don't have much education and have a limited knowledge of English. (p. 117)
Unaccompanied children
- Family reunification: Approximately 60% of children placed in ORR custody are ultimately reunified with a parent, relative or sponsor in the U.S. (p. 128)Lack of qualified shelter staff: IACHR was generally satisfied with the conditions of care in the two UAC facilities it visited; however, it is concerned that many shelters for UAC face challenges in recruiting and retaining qualified, medical, mental health, social work and other professional staff due to their often rural locations. (p. 129)
- Abuse of UACs: Moreover, IACHR is concerned that ORR has not fully established and effective, confidential grievance and monitoring system; this situation has led to the closing of a number of UAC facilities over the past few years and lawsuits alleging physical and sexual abuse of children. (p. 129)
- CBP Custody: IACHR is concerned about reports of inadequate and abusive treatment of UACs in short-term care of CBP (p. 129)
- Age Determinations: IACHR is disturbed that ICE continues to maintain custody over certain UAC who should have been transferred to ORR (p. 130)
Lack of access to legal representation during detention
- Barriers to representation: the majority of detained immigrants are housed in centers in rural areas & the obstacles to representing detained immigrants greatly shrink the attorney pool and restrict the number of clients each attorney can represent. (p. 131)
- Stats on legal orientation program (p. 133)
Due process for vulnerable groups - unaccompanied children
- No State-funded counsel for UAC: IACHR is very concerned that state-funded legal representation is not provided to UACs (p. 142)
- LOP, KIND, etc.: IACHR welcomes the State's effort to fill the void through its Legal Orientation Program, and the efforts of non-profit organizations like Kids In Need of Defense (KIND) (p. 142)
Conclusions and Recommendations
Custody determinations and alternatives to detention
- The IACHR urges the State to develop a 'Risk Assessment Tool' premised upon a presumption for release and to establish clear criteria to determine whether detention is in order. The Risk Assessment Tool should be designed to place each person in the least restrictive environment necessary to fulfill the State's goals at each phase of the proceedings… (p.147)
- As part of an individualized risk assessment, immigrants should be permitted to be represented by counsel, to present evidence and to appeal any decision on his her risk assessment to an immigration judge. (p.148)
Recommendations on families and unaccompanied children
- ICE should codify its current practice of placing families apprehended at or near the border to normal immigration proceedings. In the case of those families that must be subjected to detention, the State should transfer custody of those families to ORR and implement a range of services comparable to those that currently exist for UACs(p. 153)
- The federal government should coordinate with local and state governments to ensure that detained immigrants are able to maintain custody of their U.S. citizen children while in detention … (p. 154)
- The State should provide sufficient funding and place more shelters in urban area where the necessary qualified medical, mental health social service, educational, and legal professionals can be identified and retained to provide….care for UAC…(p. 154)
- The State should earmark the necessary resources to fully implement the reforms of the 2008 TVPRA…in particular the screening of UAC from Mexico and Canada, for asylum seekers, victims of trafficking and victims of other forms of persecution and criminal activity. This screening should NOT be conducted by CBP agents or other uniformed police unit (p. 154)
- The State should appoint an attorney for UAC at the States' expense (p. 154)
- The State should enact regulations that prohibits DHS or ICE officials from obtaining a UAC's health records or records of other social service consultations (p. 154)
- The repatriation of UAC to their home country should be conducted exclusively by ORR (p. 154)
