Arbitrary detention: UN expert group urges the USA to abolish the mandatory detention of migrants

WASHINGTON (24 October 2016) – The United Nations Working Group on Arbitrary Detention today called on the Government of the United States of America to abolish the mandatory detention of migrants, especially asylum seekers, from all countries.

“Mandatory detention of migrants, especially asylum-seekers, is against international law standards,” the expert panel stressed at the end of its first official visit to the country, while urging the authorities to ensure individual assessment for detention of asylum seekers, including women, men and children.

“While immigration detention should be civil, i.e. non-punitive, in nature, we observed during our visits to various immigration facilities that people are being detained under punitive conditions that are often indistinguishable from those applicable to persons subject to criminal punishment,” said the Group’s delegation comprised by human rights experts Seong-Phil Hong, José Guevara, and Leigh Toomey.

“The detention of migrants appears to be implemented as a deterrent to immigration and to the continuation of legitimate immigration claims,” the experts said. “Migrants who vigorously pursue claims for relief from removal face substantially longer detention periods than those who concede removability, and subsequently have a record of entry that can be the basis to deny re-entry in the future. Moreover, mandatory detention can cause asylum seekers to revoke legitimate claims.” 

The Working Group also expressed concern about the practice of separating families and urged the US Government to end the detention of families and children, including unaccompanied children, in the context of migration and make concrete efforts to explore alternatives to detention.

During the two-week visit, from 11 to 24 October, the Group’s delegation also assessed the situation of deprivation of liberty in the context of criminal justice, health, and Guantanamo Bay.

“There are serious economic and racial disparities that are affecting the fairness of the entire justice system,” the experts said and pointed out barriers in accessing legal representation, and lengthy pre-trial detention. “We encourage the Government to provide funds to improve access to effective legal representation for all, both in the criminal justice and immigration contexts.”

In the context of health, the Working Group underlined that the hospitalization of persons suspected of suffering from a mental illness must take into account their vulnerable position. “The necessity of continued hospitalization must be reviewed regularly at reasonable intervals by a court or a competent independent body. The person must be released if the grounds for hospitalization no longer exist,” the experts said.

The panel also recommended that confinement or involuntary treatment of pregnant women suspected of substance abuse should be used only as a last resort when a person poses an immediate threat to herself or others, only for the shortest period of time, and with appropriate due process guarantees. “The confinement should be replaced with alternative measures that protect women without jeopardizing their liberty,” they said.

In relation to the significant growth of the mental health population in the prison system, the Working Group recommended that a specific set of pre-arrest, and pre-trial intervention programs be developed aiming at preventing the incarceration of those in need of mental health treatment. 

Finally, the Working Group urged the US Government to accelerate the closure of the Guantanamo Bay detention facility to end prolonged and indefinite pre-trial detention. In addition, the experts encouraged the US Congress to lift the ban on transfers of Guantanamo Bay detainees to the United States.

The Group’s delegation held various meetings with officials from the U.S. Department of State, the Office of the Special Envoy on Guantanamo Closure, the Department of Homeland Security, the Department of Justice and its Bureau of Prisons, the Health and Human Services, as well as various authorities in Washington D.C., Texas, California and Illinois. 

The experts visited various places of deprivation of liberty at federal, state and local levels, including border patrol locations and immigration detention centres which house children, adults and families; immigration courts; county jails where persons are held in pre-trial detention; large correctional centres and prisons of different security classifications; and centres at which drug treatment is provided and seriously mentally ill inmates are under care. It was able to interview approximately 280 persons who are currently detained.

The Working Group will present its final report to the UN Human Rights Council in September 2017.

(*) Check the Working Group’s full end-of-mission statement:  http://www.ohchr.org/en/2016/10/working-group-arbitrary-detention-preliminary-findings-its-visit-united-states-america-11

The Working Group is comprised of five independent expert members from various regions of the world, namely: Mr. Sètondji Roland Adjovi (Benin), Chair-Rapporteur; Mr. José Guevara (Mexico), Vice-Chair on Communications; Ms. Leigh Toomey (Australia), Vice-Chair on Follow- Up; Mr. Seong-Phil Hong (Republic of Korea) and Mr. Vladimir Tochilovsky (Ukraine). The expert group was established by the Commission on Human Rights in 1991 to investigate instances of alleged arbitrary deprivation of liberty. Its mandate was clarified and extended by the Commission in 1997 to cover the issue of administrative custody of asylum-seekers and immigrants. In September 2013, the Human Rights Council confirmed the scope of the Working Group's mandate and extended it for a further three-year period. Learn more, log on to: http://www.ohchr.org/en/special-procedures/wg-arbitrary-detention

The Working Groups are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms. Special Procedures mandate-holders are independent human rights experts appointed by the Human Rights Council to address either specific country situations or thematic issues in all parts of the world. They are not UN staff and are independent from any government or organization. They serve in their individual capacity and do not receive a salary for their work.

UN Human Rights, country page – United States:  http://www.ohchr.org/en/countries/united-states-america

For more information and media inquiries, please contact:
In Washington, during the visit: Karen F. Smyth (+1 202 454 2106 / +1 301 351 0025 / smythk@un.org)
During and after the visit: Lucie Viersma (+41 79 444 3993 / +41 22 928 9380 /   lviersma@ohchr.org) or) and Yiyao Zhang (+41 79 201 0123 / + 41 22 917 96 34 / yzhang@ohchr.org) or write to wgad@ohchr.org

For media inquiries related to other UN independent experts:
Xabier Celaya – Media Unit (+ 41 22 917 9383 / xcelaya@ohchr.org)  

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