Excerpt from March 7, 2008 report of UN Special Rapporteur on the Rights of Migrants.
IV. CONCLUSIONS
104. Contrary to popular belief, United States immigration policy did not become more severe after the terrorist attacks on September 11. Drastic changes made in 1996 have been at work for more than a decade, affecting communities across the nation and recent policy changes simply exacerbate what was put in motion then. Also, contrary to popular belief, these policies do not target only undocumented migrants – they apply to citizens born in the United States of undocumented parents and long-term lawful permanent residents (or green card holders) as well.
105. Not only have immigration laws become more punitive – increasing the types of crimes that can permanently sever a migrant’s ties to the United States – but there are fewer ways for migrants to appeal for leniency. Hearings that used to happen in which a judge would consider a migrant’s ties to the United States, particularly their family relationships, were stopped in 1996. There are no exceptions available, no matter how long an individual has lived in the United States and no matter how much his spouse and children depend on him for their livelihood and emotional support.
106. Throughout the history of the United States, many different kinds of non-citizens have been made subject to mandatory detention. People with lawful permanent resident status (or green card holders), including those who have lived lawfully in the United States for decades, are subject to deportation. So are other legal immigrants – refugees, students, business people, and those who have permission to remain because their country of nationality is in the midst of war or a humanitarian disaster. Undocumented non-citizens are also subject to mandatory detention and deportation regardless of whether they have committed a crime.
107. A primary principle of United States immigration law is that United States citizens can never be denied entry into the country; neither can they ever be forcibly deported from the United States. By contrast, non-citizens, even those who have lived in the country legally for decades, are always vulnerable to mandatory detention and deportation.
108. In the wake of Hurricane Katrina, migrant workers from across the United States travelled to New Orleans. Ultimately, the voices of workers in post-Katrina New Orleans demonstrate that the actions and inactions of federal, state, and local governments and the actions of the private reconstruction industry have created deplorable working and living conditions for people striving to rebuild and return to the city. Because these workers are migrant, undocumented, and displaced they have little chance to hold officials and private industry accountable (e.g., many cannot vote, and displaced workers in New Orleans continue to experience barriers to voting) except through organized, collective action.
V. RECOMMENDATIONS
109. The Special Rapporteur would like to make the following recommendations to the
Government.
On general detention matters
110. Mandatory detention should be eliminated; the Department of Homeland Security
should be required to make individualized determinations of whether or not a non-citizen
presents a danger to society or a flight risk sufficient to justify their detention.
111. The Department of Homeland Security must comply with the Supreme Court’s
decision in Zadvydas v. Davis and Clark v. Martinez. Individuals who cannot be returned to
their home countries within the foreseeable future should be released as soon as that determination is made, and certainly no longer than six months after the issuance of a final order. Upon release, such individuals should be released with employment authorization, so that they can immediately obtain employment.
112. The overuse of immigration detention in the United States violates the spirit of
international laws and conventions and, in many cases, also violates the actual letter of
those instruments. The availability of effective alternatives renders the increasing reliance on detention as an immigration enforcement mechanism unnecessary. Through these
alternative programmes, there are many less restrictive forms of detention and many
alternatives to detention that would serve the country’s protection and enforcement needs
more economically, while still complying with international human rights law and ensuring
just and humane treatment of migrants.
Create detention standards and guidelines
113. At the eighty-seventh session of the Human Rights Committee in July 2006, the
United States Government cited the issuance of the National Detention Standards in 2000
as evidence of compliance with international principles on the treatment of immigration
detainees (see note 13 below). While this is indeed a positive step, it is not sufficient. The United States Government should create legally binding human rights standards governing the treatment of immigration detainees in all facilities, regardless of whether they are operated by the federal Government, private companies, or county agencies.
114. Immigration detainees in the custody of the Department of Homeland Security and
placed in removal proceedings, should have the right to appointed counsel. The right to
counsel is a due process right that is fundamental to ensuring fairness and justice in
proceedings. To ensure compliance with domestic and international law, court-appointed
counsel should be available to detained immigrants.
115. Given that the difficulties in representing detained non-citizens are exacerbated when these individuals are held in remote and/or rural locations, U.S. Immigration and Customs Enforcement (ICE) should ensure that the facilities where non-citizens in removal
proceedings are held, are located within easy reach of the detainees’ counsel or near urban
areas where the detainee will have access to legal service providers and pro bono counsel.
Deportation issues impacting due process and important human rights
116. United States immigration laws should be amended to ensure that all non-citizens
have access to a hearing before an impartial adjudicator, who will weigh the non-citizen’s
interest in remaining in the United States (including their rights to found a family and to a private life) against the Government’s interest in deporting him or her.
Detention/deportation issues impacting unaccompanied children
117. The Government should urge lawmakers to pass the Unaccompanied Alien Child
Protection Act of 2007 reintroduced in March 2007.
118. Children should be removed from jail-like detention centres and placed in home-like
facilities. Due care should be given to rights delineated for children in custody in the
American Bar Association “Standards for the Custody, Placement, and Care; Legal
Representation; and Adjudication of Unaccompanied Alien Children in the
United States” (see note 14 below).
119. Temporary Protected Status (TPS) should be amended for unaccompanied children
whose parents have TPS, so they can derive status through their parents.
Situation of migrant women detained in the United States
120. In collaboration with legal service providers and non-governmental organizations
that work with detained migrant women, ICE should develop gender-specific detention
standards that address the medical and mental health concerns of migrant women who
have survived mental, physical, emotional or sexual violence.
121. Whenever possible, migrant women who are suffering the effects of persecution or
abuse, or who are pregnant or nursing infants, should not be detained. If these vulnerable
women cannot be released from ICE custody, the Department of Homeland Security
should develop alternative progra
mmes such as intense supervision or electronic
monitoring, typically via ankle bracelets. These alternatives have proven effective during
pilot programmes. They are not only more humane for migrants who are particularly
vulnerable in the detention setting or who have family members who require their
presence, but they also cost, on average, less than half the price of detention.
Judicial review
122. The United States should ensure that the decision to detain a non-citizen is promptly assessed by an independent court.
123. The Department of Homeland Security and the Department of Justice should work
together to ensure that immigration detainees are given the chance to have their custody
reviewed in a hearing before an immigration judge. Both departments should revise
regulations to make clear that asylum-seekers can request these custody determinations
from immigration judges.
124. Congress should enact legislation to ensure that immigration judges are independent
of the Department of Justice, and instead part of a truly independent court system.
125. Families with children should not be held in prison-like facilities. All efforts should be made to release families with children from detention and place them in alternative accommodation suitable for families with children.
On migrant workers
126. The Government should ensure that state and federal labour policies are monitored,
and their impact on migrant workers analysed. Policymakers and the public should be
continually educated on the human needs and human rights of workers, including migrant
workers. In this context, the Special Rapporteur strongly recommends that the
United States consider ratifying the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
127. A human services infrastructure should be built in disaster-affected communities to
comprehensively meet the needs of workers facing substandard housing and homelessness,
wage theft, unsafe working conditions and health issues.
128. Effective oversight of the enforcement of applicable labour laws by state and federal agencies should be ensured.
129. Existing health and safety laws should be assiduously enforced in order to curb
exploitative hiring and employment practices by contractors.
130. Improved health and safety conditions should be ensured in places that are known to
employ migrant workers, compensation for workers and health care for injured migrant
workers should be provided, and the significant incidences of wage theft combated.
131. Local law enforcement and federal immigration authorities must cease harassing and racially profiling migrant workers. Law enforcement should instead focus on helping to
promote the rights of workers, including the rights of migrant workers.
Notes to Recommendations
(Note 13) CCPR/C/USA/3, paras. 190-192.
(Note 14) Available here.
Texas Civil Rights Review 
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