Commissioners: President José de Jesús Orozco Henriquez, Felipe González, María Silvia Gullén, Luz Patricia Mejia, Paulo Sérgio Pinheiro.
Petitioners: Transnational Legal Clinic of the University of Pennsylvania Law School, Women’s Refugee Commission, Immigration Clinic of the University of Texas law school, Rights Working Group and National Immigration Forum.
Respondent State: United States; Represented by Garry Mend, Executive Assistant Director, Kevin Land, Director of the U.S. detention policy and planning, Milton Drucker, Deputy U.S. Representative, Julie Martin, attorney-advisor.
Topics: Immigration, Right to due process, Right to liberty, Right to family life.
On March 28, 2011, the Inter-American Commission on Human Rights held a hearing regarding the human rights situation with respect to immigrant deportation and detention in the United States. On March 17, 2011, the Commission published the Report on Immigration in the United States: Detention and Due Process that analyzed this situation and provided recommendations so that immigration practices comply with international human rights standards. In July 2010, the Commission found that the United States had violated a number of rights protected under the American Convention by failing to provide an individualized balancing test in the deportation of two legal permanent residents of the U.S. for “aggravated felonies.”
In this context, the petitioners alleged that human rights violations persist in U.S. immigration practices, and that the detention and deportation policies were in violation of article V (right to private and family life), article VI (right to a family and protection thereof), article XVIII (right to a fair trial) and article XXVI (right to due process of law) of the American Declaration of the Rights and Duties of Man. The immigration practices at stake include detention and/or deportation of asylum seekers, detention and/or deportation of documented migrants for petty or aggravated offenses, and separation of parents and children. The petitioners also examined the deputation of policies’ enforcement to local authorities especially through the 287(g) program, which remains in place despite reforms.
The petitioners presented two witnesses to show how those practices amount to violations of human rights. First, Walter Tejada, member of the Arlington (Virginia) County Board, testified about the challenges his community faces as a result of local law enforcement officers enforcing federal immigration policies, such as the Secure Communities Initiative, which requires local officials to forward fingerprints to federal immigration enforcement agencies. Although the County Board voted to opt-out this program, Immigration and Customs Enforcement (ICE) later told them that opting-out was not an option. Mr. Tejada questioned the mandatory enforcement of a federal program that was not mandated by the Senate and expressed his concern as to the lack of clarity and responsiveness of the federal government. He also stressed the importance of such “civilized debate” to seek clarity and guidance from the federal government.
Next, Robert Cote testified about how local police arrested his wife for a previous federal immigration violation when translating for her sister, who had just been the victim of a domestic violence incident. His wife was separated from her three small children and detained for fourteen days without meeting with a judge or knowing what she was charged with. Mr. Cote explained how this arrest impacted his family life. “This program is hurting the community rather than helping it,” he said, “because people fear to be arrested and don’t call the police.”
The United States’ representatives commented on the major role of immigration in a country built on immigration. “No country is perfect, and we must continuously review our policies,” Mr. Drucker said, after emphasizing the importance of family unification and protection of asylum-seekers. He also mentioned U.S. support of regional dialogue, after acknowledging the promotion of human rights to all human beings regardless of their migration status. He explained that every year, the United States granted asylum to ten thousand refugees, and encouraged other governments to enforce programs of this type. He rejected the view that securing the borders and ensuring human rights were inconsistent goals.
While reminding the Commission that the American Declaration was not binding in the American legal system, Ms. Martin expressed the political commitment to uphold it. She further invoked the right for a State to regulate entrance to its territory as a fundamental attribute of States’ sovereignty. “Immigration detention,” she said, “is permitted under international provided that it is consistent.” Therefore legitimate actions, including detention when appropriate, can be taken to enforce the law.
Commissioner Gonzales responded to these comments by explaining that international instruments and international law should not be interpreted in a restrictive sense, just as the American Constitution does not provide legal grounds for all types of detention. Rather, he stressed that under international law, there is a presumption of liberty for migrants that should be followed. Further, he noted, with the support of Commissioner Mejia, that the Commission was trying to carefully conserve the balance between state sovereignty and state responsibility for human rights.
Mr. Garry Mend argued that it was not true that local law enforcement played a major role in enforcing immigration law, as only seventeen jurisdictions had the authority to do so. He also highlighted the additional 2009 program issued to help local authorities in enforcing the 287(g) program. He assured the Commissioners that the policy gave priority to deporting criminal offenders and that the fingerprints sent to ICE were taken in the context of criminal law enforcement for immigration purposes.
Finally, the director of U.S. Detention Policy and Planning explained how immigration detention has grown in an unprecedented way over the last decade, leading to a lack of adapted facilities, a problem that ICE is working on remedying. He said that the United States is taking specific steps, by developing a new generation of improved facilities and improving transparency and accessibility, therefore minimizing consequences on families, by implementing a new set of detention standards to improve detention conditions, by improving access to health care and by taking into account the conditions of disabled, pregnant and elderly people.
According to Commissioner González, the report showed that detention conditions in locally-run facilities were better than in federal centers. However, the representatives noted that there is a lack of federal supervision in local centers that needed to be remedied and that were highlighted by a local ICE officer himself. This lack of supervision was also a major concern of the petitioners, because the set of detention standards were merely guidelines rather than enforceable laws. The U.S. representatives repeated that ICE was working on improving and consolidating detention conditions in county jails. A new program has been implemented, thanks to which 85% of the immigration detainees are in facilities where there is full-time monitoring. Also, sanctions are applied to facilities that do not comply with standards of detention.
Regarding the commission of crimes that can lead to deportation, Commissioner Mejía asked the parties to clarify the classification of those crimes, to which the U.S. representatives explained the three relevant levels of crimes under the FBI codes: petty felony, aggravated felony and misdemeanor. However, Brittany Nystrom of the National Immigration Forum noted that most criminal violations cited in immigration proceedings consisted of traffic violations or criminal offenses that depend upon the immigration violation itself.
Commissioner Mejía raised the issues of women´s rights and the impact of detention on women and their families. Commissioner Pinheiro also asked about ICE provisions or instructions concerning children and adolescents whose parents have been detained, or who have been detained along with their parents. The petitioners noted that the main issue was families’ access to courts, and recommended phone calls as an easily achievable measure. Also, they recommended that the United States should take into account the best interest of the children when deciding on the detention of the parents. The U.S. representatives said that the United States has implemented specific policies for caregivers and have made arrangements for juveniles whose parents are detained, in order to minimize the impact on families.
A major question about the indefiniteness of detention remained unanswered: Commissioner Mejia asked whether the person should know the time of detention and the time when they will be deported. The Commissioners and petitioners all stressed the importance of continuing the dialogue on these issues and encouraged the United States to follow up and improve their transparency and practices.
Listen to the hearing below.
 Wayne Smith, Hugo Armendariz and al. v. United States, Inter-American Commission, OEA/Ser.L/V/II.139, doc.21, July 12th 2010. Available at: http://cejil.org/sites/default/files/Final%20Report_CIDH_Wayne_Smith.pdf