USA

"It was easier to have access to [a] client on death row than to an asylum-seeker in the New Orleans jail." - The lawyer of a Somali refugee held in four different states while seeking asylum.

Treated as Criminals: Arbitrary detention of asylum seekers

Overview Police Brutality Human Rights Violations on the US-Mexico Border Abuse of Prisoners Women in Detention Arbitary detention of asylum-seekers Super-maximum security Death Penalty Racism and the death penalty International Context FAQ

Seeking ayslum is a right, not a crime. But an increasing number of people, having been forced to flee their homes to escape persecution, are being placed behind bars on arrival in the USA. They are held in conditions that are sometimes inhuman and degrading. Asylum-seekers in the US are liable to be stripped, shackled and sometimes verbally or physically abused. Many are confined with convicted criminals or suspected criminals, but - unlike criminals - are excluded from bail and have no idea when they will be released. Asylum seekers detained in the US are often denied access to their families, and to lawyers and organizations who could help them.

Amnesty International is calling on US authorities to ensure that asylum-seekers are detained only when a legitimate reason for doing so has been demonstrated, only when other measures will not suffice, and only for a minimal period. In particular, the practice of holding asylum-seekers in jails should be stopped. Children should neither be separated from their families nor detained. All detained asylum-seekers should have adequate access to the outside world.

Defying international standards

US policies and practices, which result in the indefinite detention of most of those who seek asylum in the USA, violate international human rights standards. The international body with statutory responsibility for refugees is the Office of the UN High Commissioner for Refugees (UNHCR). The UNHCR’s Executive Committee (EXCOM) is an intergovernmental body of more than 50 states. EXCOM's conclusions, which are adopted by consensus, are regarded as authoritative in the field of refugee rights.

EXCOM has stressed that national legislation and administrative practices should recognize the distinctive needs of asylum seekers. EXCOM has stated that the detention of asylum-seekers “should normally be avoided.” Detention of asylum seekers would be allowable only if it’s necessary, if it’s lawful and not arbitrary, and if it’s necessary for one of the following reasons: (i) “to verify identity”; (ii) “to determine the elements on which the claim to refugee status or asylum is based”; (iii) “to deal with cases where refugees or asylum-seekers have destroyed their travel or identity documents or have used fraudulent documents”; and (iv) “to protect national security or public order.”

At all times, the onus is on the authorities to demonstrate why measures short of detention are not sufficient. Even if asylum-seekers are detained legitimately, detention shouldn’t continue for any longer than is necessary.

The US, as a member of EXCOM, has explicitly endorsed these recommendations. In reality, however, the US defies these international standards in its treatment of asylum-seekers.

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Treated as criminals

The US Immigration and Naturalization Services (INS) detains more than 15,000 people a year. The lack of coherent official data makes it impossible to determine how many of those detained by the INS are asylum-seekers. However, it’s believed that the numbers are rising. In 1996 the US Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Under its provisions, even asylum-seekers who manage to convince officials that they have a “credible fear” of returning to their country are generally detained until their case has been decided, something which may take years. Since this law was enacted, the total number of people detained by the INS – asylum seekers and others – has increased by 75 percent. The INS predicts that in two years it will detain as many as 24,000 people a year.

People seeking asylum in the US are detained in special INS processing centres, in private facilities contracted to the INS, in state and local county jails, and in Federal prisons. There are also a variety of juvenile detention facilities where children and unaccompanied minors may be detained. There is no national system to oversee and hold accountable those responsible for the detention and treatment of asylum seekers.

There is also no consistency across the US in how detained asylum-seekers are treated. While conditions are not harsh in all facilities, Amnesty International has documented instances of overcrowding, lack of access to daylight, exercise and recreational facilities, and, in some cases, verbal or physical abuse by staff. The increasing numbers of asylum seekers being detained in the US is leading to a deterioration in conditions in many facilities.

An official investigation of one facility contracted to the INS revealed widespread abuse of detainees including “harassment, verbal abuse and other degrading actions” by guards, as well as sub-standard medical care.

The INS has recently proposed new detention standards, which, if followed, will be an improvement on existing practices. However, these standards do not apply to jails, where about half of all INS detainees are currently held. Moreover, under these new standards, abuses will be monitored by the same staff who run the facilities.

Women asylum-seekers

Because there are usually only a small number of women asylum-seekers held in any given jail, the problem of isolation is particularly acute for these women. Because of their smaller numbers women asylum-seekers are more likely than men to be detained together with criminal offenders.

One asylum-seeker told Amnesty International that she was frequently threatened by her fellow inmates, was made to sleep on the floor for two months and felt at risk of sexual assault. Others reported that they were denied basic sanitary products: one said she had been yelled at by the prison guard when she stained her prison clothes after her repeated requests for sanitary products had been ignored. Detainees said they were given only one change of prison clothing a month, were not given soap and were placed in solitary confinement for minor transgressions of prison rules that they didn’t understand.

Children in custody

Children who need protection from persecution in their country of origin reportedly continue to be separated from their families and held in prison-like conditions, in breach of international standards. The USA’s obligations towards refugee children, as defined by the international community, are based on the principle that the best interests of the child should be paramount and on the understanding that imprisonment of any juvenile should be a last resort.

Children who have been through the trauma of being driven from their homes in fear and who find themselves alone in a strange land need special help. Too often they are not getting it.

Thirteen-year-old Rajakumar and his mother fled from Sri Lanka after his father was seized by government soldiers and “disappeared.” They arrived in the US in March 1998. Rajakumar was locked for more than one month in a New York hotel room with a group of strangers. He had limited telephone contact with his mother but was then moved without her knowledge to an INS juvenile facility in Florida. His mother was frantic with worry about him, and although she was eventually granted asylum, the INS continued to detain both mother and son while they appealed against the decision. The two were finally released from detention and reunited only after sustained legal intervention.

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