Academics and activists in the United States (including yours truly) have become increasingly outspoken on the detention of immigrants and asylum seekers. The lack of procedural due process in detention decision-making is breathtaking, and has led to expressions of concern by not one, not two, but three United Nations expert bodies of late.
First, the United Nations Special Rapporteur on the Rights of Migrants, Jorge Bustamante, has released his report on his mission to the United States earlier this year (posted on here and here). Among other concerns, the Special Rapporteur found that excessive discretion is placed in the hands of the Department of Homeland Security (DHS)'s bureau of Immigration and Customs Enforcement (ICE) in the detention decision-making process. His report notes the following specific concerns with the United States' treatment of migrants in detention:
• Failing to promptly inform detainees of the charges against them
• Failing to promptly bring detainees before a judicial authority
• Denying broad categories of detainees release on bond without individualized assessments
• Subjecting detainees to investigative detention without judicial oversight
• Denying detainees access to legal counsel
Similarly, the United Nations Working Group on Arbitrary Detention, chaired by Leila Zerrougui, reported in January an increasing trend towards administrative detention of immigrants and asylum seekers without access to administrative or judicial review, and with the purpose of deterring immigration. In addition to concerns similar to those laid out above, the Working Group emphasized the following rights of migrants:
• The necessity of founding the decision on custody on criteria of legality established by the law by a duly empowered authority;
• The desirability to set a maximum period of detention by law which must in no case be unlimited or of excessive length;
• The requirement of notification of the custodial measure in a language understood by the immigrant or asylum-seeker, including the conditions for applying for a remedy to a judicial authority, which shall decide promptly on the lawfulness of the measure and be competent to order the release of the person concerned, if appropriate.
The Working Group is planning a trip to the United States this year.
And finally, last week the United Nations Committee on the Elimination of Racial Discrimination released its concluding observations on the United States' recent periodic reports. The Committee requested that in its next report, the United States provide detailed information . . . on the alleged mandatory and prolonged detention of a large number of non-citizens, including undocumented migrant workers, victims of trafficking, asylum seekers and refugees, as well as members of their families. Here's hoping that this international pressure from several fronts will bring attention to this important issue and prompt reform of US policies on detention of immigrants.