Volume 36 - Issue 2 Fordham International Law Journal

Realizing Liberty: The Use of International Human Rights Law to Realign Immigration Detention in the United States

BM came to the United States from Nicaragua as a young child and became a lawful permanent resident in 1987. In August 2007, Immigration and Customs Enforcement (“ICE”) detained BM and held him for more than a year during deportation proceedings. Prior to his detention, BM had lived in Austin, Texas and had worked for the state government. His entire immediate family lived in the United States, and his mother suffered from terminal cancer. Yet, ICE detained BM under immigration law’s mandatory detention provisions while pursuing deportation based on two drug possession convictions. ICE succeeded in deporting BM, but in 2010, the US Supreme Court overturned the line of cases that had prevented BM from applying to remain in the United States. BM returned to the United States for additional immigration court hearings to decide his immigration status, and he eventually won the right to resume his life in this country. ICE detained BM for an additional three months during the renewed proceedings and for a period after BM received approval from the immigration court to remain in the United States as a lawful permanent resident.

FH has lived a very different experience from BM but also faced immigration detention in the United States. FH fled his country of Eritrea by foot after the Eritrean military tortured him, including by tying his legs and arms together behind his back and hanging him from a tree in the infamous helicopter position. FH presented himself at the US border on August 26, 2010 seeking asylum and was immediately detained. ICE held FH in immigration detention for more than a month, although he has a US citizen brother and other close family members who wished to host him during immigration court proceedings to decide his asylum claim. In detaining him, ICE did not consider the fact that US immigration courts grant eighty-five percent of Eritrean asylum claims, which is not surprising since the US State Department reports that human rights abuses in Eritrea are rampant and Eritrean asylum seekers returned home are often “disappeared.” After release from detention, FH lived with his family in Austin, Texas, attended all immigration court proceedings, and received asylum in the immigration court in November 2011.

The United States detained 429,000 migrants like BM and FH during 2011, the last year for which definitive numbers are available. These 429,000 detainees were held during proceedings to determine whether they would be deported or allowed to remain in the United States and, in some cases, until physical deportation could take place. They were held in the custody of ICE, the federal entity within the Department of Homeland Security (“DHS”) charged with enforcing the immigration laws. Detention of migrants has followed a significant and steady upward course over the last two decades as detention has expanded and become the presumptive norm in immigration cases. This trend has proceeded largely unchecked despite efforts at reform by advocates concerned with the humanitarian and financial impact of such a large-scale detention program that lacks cogent contours. The trend currently shows no sign of reversal.

In the meantime, human rights bodies have overcome their traditional reluctance to adjudicate claims touching on central aspects of statehood and sovereignty and have developed meaningful international human rights law standards for assessing immigration detention practices. The newly-developed standards call into question many aspects of the current immigration detention system that leads to the widespread detention of asylum seekers and other migrants in the United States. The international standards provide a helpful legal framework for considering immigration detention in the United States, particularly as they derive from binding international legal norms and have much in common with US law regarding civil detention in contexts not as contentious as immigration. Human rights law analysis should therefore spur positive changes to immigration detention in the United States that will bring rationality back to our system and protect liberty.

While immigration detention has ballooned in the United States, the available scholarship includes few efforts to analyze the various components that interact to create such a massive detention system. There is even less scholarship available analyzing the new international human rights standards as applied to US immigration detention. In the late 1990s and early 2000s, some scholars analyzed the detention framework that evolved after Congress adopted restrictive immigration measures in 1996 that increased detention. However, that literature involved only a guess at what was to come and could not address the current reality of detention expanded beyond any expectation. Nor could that scholarship incorporate a human rights analysis, since the human rights standards developed with specificity only in recent years. Much more recently, scholars in the United States have begun to use human rights law to consider immigration detention, but they have done so mainly by analyzing discrete aspects of immigration detention in the United States. Meanwhile, international scholars have begun to evaluate immigration detention laws and policies from a human rights perspective. However, that work has not focused on the particularities of the US immigration detention system.

This Article represents a first effort, then, to synthesize and present the recently-developed international human rights standards and apply those rules to the US immigration detention system in a systematic manner. In so doing, the Article demonstrates how the application of international human rights law standards can bring rationality and humanity to US immigration detention by revitalizing the right to liberty, which constitutes a core conception in both international human rights law and US law. The Article does not suggest that immigration detention in the United States should be abolished. It does urge realignment of US law in a way that would scale back immigration detention in order to bring the detention system and its components into line with international human rights norms and with the US tradition of liberty that treats civil detention as an exceptional situation.

While many concerns exist regarding immigration detention conditions, including the harsh prison-like environment at many facilities, inadequate health care and the remote placement of facilities that impedes access to counsel and family visitation, I do not consider those issues in this Article. Instead, the Article focuses on the fact and extent of migrant detention, regardless of the conditions of the specific detention placement. The analysis does treat all US immigration detention as “hard” detention, implicating the full panoply of liberty concerns involved in civil detention. In other words, no adult immigration detention facilities in the United States allow free movement out of the facility or otherwise have conditions that call into question their classification as detention facilities. Nor does the Article explore the very real negative consequences of detention for migrants, because the deprivation of liberty itself must be understood as having a severe impact that demands justification, without a showing of further harm. If there were any doubt, however, the harm caused by detention has been well-documented. Among other impacts, studies show that detention leads to deterioration of the mental and physical health of detained migrants as well as their families. Additional studies show that migrants in detention are much less likely to obtain counsel and are much more likely to lose their immigration cases.

Finally, this Article focuses on those individuals who are detained pending a decision as to whether they will be deported or will gain the ability to remain in the United States. Most detained migrants with a final decision ordering deportation, either through an abbreviated process or after full proceedings to adjudicate immigration status, are removed quite quickly. They therefore remain in detention for a short period of time pending execution of the deportation. US law already imposes time limits and procedural requirements on the detention of such migrants with a final removal order, although problems remain with the implementation of these rules. The justification for detention of migrants after issuance of a removal order is also more obvious, including under international human rights standards. The US government has already decided that these migrants must leave the United States, and only physical removal remains. This group of detainees does not present the same considerations regarding the appropriateness of detention as those detainees with a pending decision in their cases.

With these premises in mind, the Article first describes the current state of immigration detention in the United States in Part I. Part II then traces the recent unfolding of well-developed international human rights standards regarding immigration detention and sets out the human rights law framework for evaluating immigration detention. Part III proceeds to consider the relevance of the international standards in analyzing US immigration detention. It first explores the binding nature of the international human rights standards, at least as a question of international law. Next, it compares the international human rights framework to US law on civil detention in non-immigration contexts, concluding that the standards are almost fully in line with one another. Given these similarities, as well as the importance of complying with international obligations, I conclude in this Part that the United States should realign the US immigration detention system so that it meets the international standards. Specifically, I propose that courts should intervene, where necessary, to protect liberty and due process by giving substance to the international standards through the interpretation of US statutory and constitutional provisions. Part IV engages in a detailed analysis of the US immigration detention system and its various components as measured against international human rights standards. Significant incompatibilities with international human rights law are identified, and this Part urges delimitation of US law to resolve these incompatibilities and curb the excesses of immigration detention in the United States.


Full Article Available in:
Fordham International Law Journal
Volume 36, Number 2


Suggested Citation:
Denise Gilman, Realizing Liberty: The Use of International Human Rights Law to Realign Immigration Detention in the United States, 36 Fordham Int’l L.J. 243 (2013)

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