Thousands of people from all over the world come to the United States seeking asylum every day.[1] Many of these individuals, dehumanizingly labeled “arriving aliens,” are fleeing a fear of persecution in their home country only find themselves subject to mandatory detention upon arrival.[2] This mandated detention is enacted by Immigration and Custom Enforcement (ICE), housed within the Department of Homeland Security (DHS), who are operating under the powers delegated to them by the Immigration and Nationality Act (INA).[3] The specific statute governing this practice, INA § 236(c), enumerates certain crimes triggering compulsory detention.[4] Individuals subject to this statute are precluded from discretionary release by ICE and are not eligible for a bond hearing.[5] This makes the detention not only mandatory, but indefinite.[6]
This practice of mandatory detention deprives immigrants of their due process rights, violating international custom and multiple treaties to which the United States is a party. Most prominently, the International Covenant on Civil and Political Rights (ICCPR) mandates that not only are countries obligated to ensure that “detention does not last longer than absolutely necessary,” but that “the overall length of possible detention is limited.”[7] Furthermore, the ICCPR prohibits “arbitrary arrest or detention” based on unclear standards, holding that every individual facing detention “is entitled to be heard in order to determine if detention is justified and thus not arbitrary.”[8] Customary international law, which is applicable to every individual subject to US jurisdiction, similarly mandates due process in the face of prolonged, arbitrary detention.[9]
The scope of what can qualify as a crime triggering INA § 236(c) is overly broad, subjecting noncitizens to indefinite detention arbitrarily and, in some cases, detaining individuals who do not pose a threat to society.[10] This prolonged, mandated detention is imposed upon individuals on the sole basis of their prior criminal history with no formal analysis of whether or not they are a flight risk or pose a danger to society (the two factors considered in immigration custody proceedings).[11] This practice can also result in doubly punishing immigrants who have already served sentences or been rehabilitated in their home country, further violating the principle of due justice.[12] This lack of strict standards and inability to be heard prior to detention results in the arbitrary detention counter to international standards.
Despite this, some mandatory detention of immigrants upon their arrival has “withstood challenges under human rights law” so long as “it is in a suitable place for a limited time.”[13] The detention facilities in the United States, however, are by no means suitable.[14] Individuals who find themselves in immigration detention centers often face overcrowded facilities, inadequate healthcare, and filthy living conditions that are “negligent” and “unsafe.”[15] The state of the facilities are so dire that some asylum seekers report that “agents used poor conditions in detention as a deterrent” to seeking protection from persecution in the United States.[16] The sum of these practices, “amount[s] to an overall message to asylum seekers to not seek refuge in the United States, which contradicts international refugee standards.”[17]
Noncitizens subject to mandatory detention are stuck inside these insufficient, failing facilities with no ability to request release, violating any notion that they will only be subject to detention for “a limited time.”[18] These individuals are forced to suffer inhumane conditions with no opportunity for a bond hearing or discretionary parole, , sometimes for years, as their case slogs through the immigration courts all time high backlog.[19] For perspective, there are currently there are over 2.6 million active court cases on the immigration docket and in the entirety of 2022, only 51,607 decision were made.[20] In this way, the United States treatment of individuals being detained under INA § 236(c) violates the conditions under which mandatory detention has previously been narrowly accepted in the international community as the detention is neither in suitable facilities or for a limited time.
There are a variety of changes that DHS could make to comply with their duties under international law. The most immediately implementable could be done via DHS reinterpreting the section of the INA that mandates noncitizens convicted of certain crimes “be taken into custody.”[21] The current basis for this indefinite nature of INA § 236(c) comes from DHS’s narrow interpretation of the word “custody,” which the department holds to mean detention.[22] An alternate interpretation, supported by many advocates of immigrant rights and select case law, would interpret “custody” more broadly to “include other forms of restrictions on liberty.”[23] Under this interpretation, there are a variety of alternatives to detention, such as mandated check-ins, curfew requirements, and electronic monitoring, that would allow noncitizens freedom and comply with international law.[24] These alternatives not only restore long due freedoms to deprived immigrants, but they are also financially prudent with some costing as little as 70 cents per day compared to the estimated $166 per day it costs to keep a noncitizen detained.[25] Some of these alternatives are already implemented with arriving noncitizens who are not subject to INA § 236(c), further proving viability.[26]
Another solution would be to eliminate the indefinite and arbitrary nature of mandatory detention and allow those detained under INA § 236(c) a right to a bond hearing and the ability to request parole. Currently, the inability of the judiciary to weigh on DHS’s authority to implement mandatory detention violates the ICCPR.[27] Amending this practice would bring the United States into compliance with international law and allow those subject to INA § 236(c) their due process rights.[28] The courts consideration of potential flight risk and dangerousness in these custody proceedings would minimize and mitigate any potential harmful effects to society that could occur as a result of such hearings.
So long as the United States allows mandatory, indefinite detention under INA § 236(c), it will be in violation of international law. These policies traumatize and arbitrarily penalize individuals from countries all over world. The United States must immediately stop the injustices imposed upon these asylum seekers and pursue alternatives to mandatory immigration detention and policy changes.
[1] Camilo Montoya-Galvez, Migrant Crossings Soar to Near-Record Levels, Testing Biden’s Border Strategy, Sept. 21, 2023, 10:43 AM), CBS, https://www.cbsnews.com/news/border-crossings-migrants-us-mexico-biden-strategy/; Terry Collins, ‘New Normal’: High Number of Migrants Crossing Border Not Likely to Slow, USA Today, (Sept. 30, 2023, 6:34 AM), https://www.usatoday.com/story/news/nation/2023/09/30/how-many-migrants-crossed-the-border-2023-mexico-venezuela-2022/70979085007/.
[2] Bryan Lonegan, Immigration Detention and Removal: A Guide for Detainees and Their Families, National Immigration Law Coalition Legal Aid Society 5 (Feb. 2006), https://www.nilc.org/wp-content/uploads/2015/12/detentionremovalguide_2006-02.pdf(explaining that the INA mandates detention for certain enumerated crimes and individuals who overstay their visa); Eunice Cho, Unchecked Growth: Private Prison Corporations and Immigration Detention, Three Years into the Biden Administration, ACLU, (Aug. 7, 2023), https://www.aclu.org/news/immigrants-rights/unchecked-growth-private-prison-corporations-and-immigration-detention-three-years-into-the-biden-administration?utm_source=flipboard&utm_content=other (explaining that on average ICE detains over 30,000 people every day).
[3] Rigoberto Ledesma, The Unconstitutional Application of Apprehension and Detention Laws: Section § 236(c) of the Immigration and Nationality Act, 19 St. Mary’s L. Rev. on Race and Soc. Justice 361, (2017).
[4] Id.;INA § 236(c) (mandating the detention of immigrants who commit a crime involving moral turpitude, drug crimes, fraud, and other enumerated crimes).
[5] Matthew Boaz, Practical Abolition: Universal Representation as an Alternative to Immigration Detention 89 Tenn. L. Rev. 199, 218 (2021); Ledesma, supra n. 3 at 362 (explaining the constraints on judicial bodies to determine custody).
[6] Sarah Tosh, Mandatory Detention for Criminal Convictions: The Reproduction of Racial Inequality Through U.S. Immigration Law, 44 L. & P 70, 71 (2022) (explaining that noncitizens detained under INA 235 “may be held indefinitely without right to a bail hearing”).
[7] Compilation of International Human Rights Law and Standards on Immigration Detention, UNCHR 21 (Feb. 2018), https://www.unhcr.org/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fwww.unhcr.org%2Fs ites%2Fd efault%2Ffiles%2Flegacy-pdf%2F5afc1b927.pdf#UNHCR-IDMLP-M5-Annex-REV2018-V2.indd%3A.43968 8%3A2765; Ratification Status for CCPR, OHCHR, (Accessed Oct. 12, 2023), https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?Treaty=CCPR&Lang=en (listing the United States as both a signatory and ratifier of the ICCPR).
[8] Gwynn Skinner, Bringing International Law to Bear on the Detention of Refugees in the United States, 16 Willamette J. Int’l L. & Dispute Resolution 270, 282 (2008).
[9] Id. at 283 (explaining that a state is in violation of customary international law if it “practices, encourages, or condones. . . prolonged arbitrary detention”).
[10] Tosh, supra n. 6 at 71-73 (explaining that the definition of an aggravated felony encompasses thousands of different types of criminal convictions and the additional expansion of mandatory detention to crimes involving moral turpitude, drug crimes, and terrorism); Fatma E. Marouf, Alternatives to Immigration Detention, 38 Cardozo L. Rev. 2141,2147 (2017) (explaining that some offenses triggering a “crime involving moral turpitude” are nonviolent in nature, such as fraud); Philip L. Torrey, Rethinking Immigration’s Mandatory Detention Regime: Politics, Profit, and the Meaning of “Custody,” 48 U. Mich. J. L. Reform 879, 880 (2015) (noting that non-violent offences such as money laundering triggers mandatory detention under the current interpretation of the INA).
[11] Ledesma, supra n. 3 at 362 (explaining that individuals subject to detention under INA § 236(c) can be detained for years without a hearing considering the immigration bond factors of flight risk and danger to society).
[12] Tosh, supra. n. 6 at 72.
[13] Cathryn Costello and Itamar Mann, Border Justice: Migration and Accountability for Human Rights Violations, 21 Ger. L. J. 311,318 (2020) (citing Saadi v. U.K., 47 E.H.R.R. 17, para. 129 (2008)).
[14] Id.; Altaf Saddi et al., Understanding US Immigration Detention: Reaffirming Rights and Addressing Social-Structural Determinants of Health, 22 Health Hum. Rights 187, 190 (2020) (explaining the poor conditions of US detention centers and reporting that out, out of 7,000 reviewed cases, “one-third of detained asylum seekers reported poor conditions, treatment, or medical issues”); Chanelle Diaz et al., Harmful by Design – a Qualitative Study of the Health Impacts of Immigration Detention, 38 J. of General Internal Medicine 2030, 2032 (2023) (explaining that poor conditions and inhumane treatment are a common theme reported by previously detained individuals).
[15] Tom Dreisbach, Government’s Own Experts Found ‘Barbaric’ and ‘Negligent’ Conditions in ICE Detention, NPR, (Aug. 16, 2023), https://www.npr.org/2023/08/16/1190767610/ice-detention-immigration-government-inspectors-barbaric-negligent-conditions.
[16] Mexico: Asylum Seekers Face Abuses at Southern border, HRW, (June 6, 2022), https://www.hrw.org/news/2022/06/06/mexico-asylum-seekers-face-abuses-southern-border (sharing stories of individuals who were held in immigration detention where they were told, “[t]he best thing for you to do is request voluntary deportation,” and, “if you request asylum, you will be [detained] for six months”).
[17] Kristen M. Jarvis Johnson, Fearing the United States: Rethinking Mandatory Detention of Asylum Seekers, 59 Admin. L. Rev. 589,605 (2007).
[18] Costello, supra n. 13.
[19] Asylum in the United States, American Immigration Council, (Aug. 16, 2022), https://www.americanimmigrationcouncil.org/research/asylum-united-states#:~:text=The%20backlog%20in%20U.S.%20immigration,pending%20for%20over%20four%20years.
[20] Immigration Court Quick Facts, Transactional Records Access Clearinghouse, (2023), https://trac.syr.edu/immigration/quickfacts/eoir.html#:~:text=Immigration%20Court%20recorded%20closing%20606%2C962,2023%20as%20of%20August%202023.&text=At%20the%20end%20of%20August,pending%20before%20the%20Immigration%20Court.&text=Miami%2DDade%20County%2C%20FL%2C,the%20end%20of%20August%202023; Suzanne Gamboa, Biden Changes Have Led to a Historic Number of Granted Asylum Cases. But There are Some Consequences Too, NBC, (Dec. 14, 2022, 8:18 AM), https://www.nbcnews.com/news/latino/asylum-biden-border-increase-cases-immigration-rcna61577.
[21] Marouf, supra n. 10 at 2146.
[22] Id.
[23] Id. at 2146-47.
[24] Torrey, supra n. 10 at 882; Ledesma, supra n. 3 at 388-89.
[25] Id.
[26] Isai Estevez, A Case for Community-Based Alternatives to Immigration Detention, 64 Az. L. Rev. 1185,1196 (2022) (explaining that ICE has multiple alternatives to detention that they currently employ).
[27] Alfred de Zayas, Human Rights and Indefinite Detention, 87 Int’l Rev. Red Cross 15, 18 (2005); Philip L. Torrey, Jennings v. Rodrigues and the Future of Immigration Detention, 20 Harv. Latinx L. Rev. 171, 173 (2017) (explaining that contestations of the mandatory detention powers have largely escaped being overturned not on their adherence to due process and legality, but the Supreme Court’s holding that this power is immune from judicial control).
[28] Ledesma, supra n. 3 at 388 (explaining that the current implementation of 236(c) violates the Due Process Clause).
