Immigration Detention in the United States: Identifying Alternatives That Comply With Human Rights and Advance Public Health

Abstract

Under international law, the United States is obligated to uphold noncitizens’ fundamental rights, including their rights to health. However, current US immigration laws—and their enforcement—not only fail to fulfill migrants’ health rights but actively undermine their realization and worsen the pandemic’s spread.

Specifically, the US immigration system’s reliance on detention, which precludes effective social distancing, increases risks of exposure and infection for detainees, staff, and their broader communities. International agreements clearly state that the prolonged, mandatory, or automatic detention of people solely because of their migration status is a human rights violation on its own. But in the context of COVID-19, the consequences for migrants’ right to health are particularly acute.

Effective alternatives exist: other countries demonstrate the feasibility of adopting and implementing immigration laws that establish far less restrictive, social services–based approaches to enforcement that respect human rights. To protect public health and realize its global commitments, the United States must shift away from detaining migrants as standard practice and adopt effective, humane alternatives—both amid COVID-19 and permanently.

The United States is party to a range of international treaties and agreements that protect the fundamental rights of migrants. Under the Universal Declaration of Human Rights, which is not a treaty per se but is binding as part of customary international law, everyone, “without distinction of any kind,” has the rights to medical care, education, liberty, and the right to seek asylum. Likewise, under the International Covenant on Civil and Political Rights, which the United States ratified in 1992, “everyone” has the rights of liberty, due process, and equality before the law. And finally, under the International Convention on the Elimination of All Forms of Racial Discrimination, which the United States ratified in 1994, the rights of health, education, and freedom of movement are guaranteed regardless of national origin. Pursuant to a 2002 UN general recommendation interpreting the International Convention on the Elimination of All Forms of Racial Discrimination, the United States is obligated to “respect the right of non-citizens to an adequate standard of physical and mental health by, inter alia, refraining from denying or limiting their access to preventive, curative and palliative health services.”^1(p37)

Other widely adopted treaties that are not US ratified—including the International Covenant on Economic, Social, and Cultural Rights (171 state parties) and the 1951 Convention Relating to the Status of Refugees (Refugee Convention; 146 states parties)—demonstrate substantial global agreement on the importance of guaranteeing the welfare of all people.¹ International instruments also limit the use of immigration detention. For example, the Refugee Convention, which the United States must observe as a party to the 1967 Protocol Relating to the Status of Refugees, clarifies that countries cannot “impose penalties” on asylum seekers for entering without authorization. Further, the UN High Commissioner for Refugees has made clear that “detention for the sole reason that the person is seeking asylum is not lawful” and that considering alternatives to detention is a requirement of parties to the Refugee Convention.² Under the International Covenant on Civil and Political Rights, short-term, judge-ordered restrictions on migrants’ movement may be permitted if undertaken in humane conditions and expressly permitted by law. However, long-term, automatic, or mandatory restrictions violate migrants’ right to liberty—and in all cases, their detention should be considered a last resort.³

Specific legal instruments also address the detention of minors and the practice’s complete incompatibility with government obligations to ensure children’s well-being. For example, the Convention on the Rights of the Child—which the United States signed in 1995 although it remains the only country that has yet to ratify it—establishes that “no child shall be deprived of his or her liberty unlawfully or arbitrarily” and that the detention of any minor “shall be used only as a measure of last resort and for the shortest appropriate period of time.”^1(p301) In 2012, the Convention on the Rights of the Child committee made clear that this language does not justify detaining children based on their migration status or that of their parents:-

The detention of a child because of their or their parent’s migration status constitutes a child rights violation and always contravenes the principle of the best interests of the child. In this light, States should expeditiously and completely cease the detention of children on the basis of their immigration status.⁴

The Convention on the Rights of the Child also guarantees children’s right to health and requires countries to “ensure that a child shall not be separated from his or her parents against their will.”

In light of these commitments, the scope and conditions of immigration detention in the United States have inspired condemnation from the international community. In 2017, after an investigative mission to the United States, the UN Human Rights Council Working Group on Arbitrary Detention proclaimed that its “mandatory detention of immigrants, especially asylum-seekers, is contrary to international human rights and refugee rights standards.”⁵ In 2018, the United Nations International Children’s Emergency Fund chastised the United States for separating children from their parents at the United States–Mexico border and expressed grave concern about migrant children’s “limited access to many of the essential services they need for their well-being, including nutrition, education, psychosocial support and healthcare.”⁶ In 2019, the UN high commissioner for human rights stated that she was “appalled” and “shocked” at the cruel, inhuman, and degrading treatment of children in US immigration detention.⁷ Early in 2020, the Federal Court of Canada ruled that US immigration policies are “inconsistent with the spirit and objective of the STCA [Safe Third Country Agreement],” a bilateral treaty addressing the rights of refugees that has been in place since 2004, and called US practices an unjust violation of “life, liberty, and security.”⁸

Moreover, domestic case law has established limits on the practice of child detention. The 1997 class action lawsuit Flores v. Reno led to a settlement agreement instituting limits on the amount of time and conditions in which minors could be detained and included a commitment to ensure the health and education of children in detention facilities.⁹ Later court decisions applying the settlement strengthened the government’s obligations to ensure family reunification and clarified that the agreement covered both unaccompanied minors and those detained with their parents. Despite the Department of Justice’s attempt to withdraw from the Flores settlement in 2019, a federal court ruling affirmed that it remains in effect; moreover, the settlement applies to the full range of government agencies involved in immigration enforcement, including Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and the Department of Health and Human Services, to which ICE and CBP now transfer unaccompanied children pursuant to the Homeland Security Act of 2002 (Pub L No. 107-296).

Despite these commitments and global standards, however, official US policy holds that any child or adult who is not a US citizen or US national can be apprehended by CBP or ICE, leading to high levels of immigration detention not only in facilities used solely for immigration detention but also in ICE-contracted jails nationwide.¹⁰ The past several years have witnessed an escalation in the imprisonment of children and families whose only offense is lack of authorization to remain in the United States. In fiscal year 2019, the Department of Homeland Security (DHS) had a record of 851 508 Southwest border apprehensions, of which 55.6% were families and 76 020 were unaccompanied minors.¹¹ For both children and adults, the threats to health and human rights cannot be overstated and demand a rethinking of our approach.

REALIZING THE RIGHT TO HEALTH

Immigration detainees in the United States primarily comprise asylum seekers and people awaiting deportation, typically for overstaying a visa or reentering the country after prior removal.¹² Even according to ICE’s own records, most immigration detainees pose no threat to the community,¹³ and as we discuss later in this essay, effective alternatives to detention exist. Nevertheless, detention has become the default method of processing asylum seekers and otherwise enforcing immigration laws, with substantial health consequences for millions of families and society more broadly.

Indeed, fully realizing the right to health is next to impossible in immigration detention. Even in the best of circumstances, the crowded conditions, lack of access to outdoor space, and psychological harms of detention pose threats to individual detainees’ health and increase the risk of communicable disease. When detention centers are inadequately resourced or poorly administered, these risks quickly escalate, as has been the case in the United States. In 2019, the Office of the Inspector General investigated 4 ICE and CBP facilities and found that they posed “immediate risks or egregious violations” to detainee health.¹⁴ One center required detainees to purchase their own toiletries despite ICE stating that these items are to be provided free of charge.¹⁴ Inadequate provision of soap and shower access in overcrowded facilities add to communicable disease risks.^15,16 There are additional reports of detainees being given only an aluminum blanket to sleep in “freezing” cells.¹⁷

Detained children have likewise faced appalling violations of the right to health, leading a federal court to determine that CBP detention facilities’ “deplorable and unsanitary conditions” violate the Flores settlement on the humane treatment of child detainees.¹⁷ For example, from December 2018 to May 2019, 3 children in CBP custody died from influenza, tragically illustrating how the combination of higher disease exposure and inadequate medical treatment in detention settings exacerbates the threat of routine illness.¹⁸ One study found that from January 2017 to March 2020, 22 ICE detention centers experienced 79 outbreaks of influenza, varicella, or mumps.¹⁹ More broadly, the detention of minor migrants has been linked to devastating overall childhood developmental delays and a heightened risk of major psychological disorders—one study reported a 10-fold increase in psychiatric disorders, including posttraumatic stress disorder and depression—often resulting in self-harm and violent behavior.²⁰ And beyond the threats to the right to health, detention creates near insurmountable barriers to the effective fulfillment of children’s right to education.

The COVID-19 pandemic has simply made these conditions worse, especially given the infeasibility of physical distancing.¹⁵ One study based on interviews with 50 people detained during the pandemic in ICE facilities across 12 states found that 96% reported sleeping within 6 feet of another person, and 80% reported they could never maintain 6 feet of distance during meals.¹⁵ As of December 28, 2020, ICE had reported positive tests from 8734 more detainees, with 474 of these currently “under isolation or monitoring.”²¹ These statistics do not show the full incidence of COVID-19 in immigration detention because of ICE’s undertesting of detainees and ongoing deportations; moreover, the agency’s lack of publicly available data on testing—alongside inconsistencies in the little data accessible online—further suggests that the reported numbers are an underestimate.^15,22

Meanwhile, rather than prioritizing stronger measures to protect detainees’ health, the Department of Health and Human Services and the Centers for Disease Control issued a public health order banning all asylum seekers entering from Canada or Mexico (regardless of nationality), not only violating human rights but also increasing the risks of the pandemic’s spread globally, as asylum seekers are immediately sent back to their countries of origin or must undertake multiple border crossings to attend hearings on their case. In September 2020, the close of the fiscal year, ICE reported its highest annual death toll in 15 years, with 72.7% of nonsuicide deaths since April 2020 attributed to COVID-19.^22,23

ALTERNATIVES TO DETENTION

The US immigration system’s reliance on detention—and its predictably devastating consequences for public health, both amid the COVID-19 pandemic and generally—is not inevitable. And although always important, the pandemic has only underscored that finding safer, healthier, and more dignified alternatives to administrative detention (ATDs) is of the utmost urgency. ATDs, as defined by the International Detention Coalition, are “any law, policy or practice by which persons are not detained for reasons relating to their migration status.”²⁴ For example, allowing asylum seekers and other migrants to live in the community while their case is pending, paired with access to social services and support from a designated case worker, upholds dignity and human rights while ensuring adequate and ongoing contact with participants. When well designed, ATDs are not alternate methods of detention but approaches that respect migrants’ rights while monitoring their progress through legal immigration proceedings.²⁴

The ATD approaches taken across countries have varied in terms of their respect for human rights and equity; these have included, among other elements, electronic monitoring, cash bonds, and regular reporting to an immigration office. Well-designed ATDs are particularly important for unaccompanied minors, who are especially vulnerable and cannot access some ATDs without a legal guardian.

In the migration context, evidence shows that ATDs can be just as effective as detention in ensuring that participants appear in court or comply with related legal requirements. For example, a 2011 examination of 13 ATDs around the world found that 10 had compliance rates of at least 94%, including 5 with compliance rates of 99% or above.²⁵ Among the 3 ATDs with lower rates—80%, 84%, and 90%, respectively—2 offered minimal social services, and the third saw an improvement in compliance after beginning to connect detainees with legal aid. According to UN experts, common elements of the programs that had the highest compliance or cooperation rates were the provision of accessible information about migrants’ rights and responsibilities in the program, referrals to legal counsel, support to meet material needs, and dignified, humane treatment throughout the process.²⁵

To better understand national approaches to ensuring international migrants’ rights, with a focus on children, our team at the WORLD Policy Analysis Center (WORLD) at the University of California, Los Angeles is currently completing a comparative analysis of the migration laws and policies of countries around the world, including their legal protections from detention for asylum-seeking minors and other migrants and the provision and prioritization of ATDs. Having laws on the books that provide for ATDs is a critical first step for protecting detained migrants’ fundamental rights. For countries that allow detention, we compared approaches to time restrictions, facilities, conditions, and rights while detained, including the right to family unity for accompanied minors and the assignment of guardians to unaccompanied minors.

For example, in Costa Rica, minor migrants cannot be detained, regardless of whether they are accompanied or unaccompanied. Unaccompanied asylum-seeking children are provided with supervision, and “all appropriate alternatives to detention should be considered” for accompanied asylum seekers.²⁶ Costa Rica is also part of the Protection Transfer Agreement, which provides safe haven to asylum seekers from Central America until the United States or other resettlement countries accept their refugee status.²⁷ In Ecuador, minors cannot be ordered to detention for administrative offenses; they may be placed in youth migrant shelters, in foster care, or with family members.²⁸ Freedom from detention is also extended to an accompanied child’s parents “when the best interests of the child or adolescent demand the maintenance of family unity.”²⁹

Moreover, some countries specify in legislation that detention of any migrants—children or adults—for longer than a few days is prohibited. For example, in El Salvador, the law proclaims that asylum seekers cannot be held in custody for more than 72 hours, “human rights must be respected,” and “in any case, no applicant may be confined to prison.”³⁰ In the Democratic Republic of the Congo, migrants can be held in a “remand center” for no longer than 8 days.³¹ In Sweden, laws prioritize ATDs for minors, who can in no case be detained for more than 6 days.³² Although effective implementation is critical to these laws having impact and requires further assessment, enshrining a commitment to ATDs in legislation provides an important foundation for protecting migrants’ rights.

Governments have also taken specific steps to tailor ATDs and other aspects of immigration policy to the challenges created by COVID-19. South Korea’s government, for example, is offering free coronavirus testing and treatment to its 390 000 undocumented immigrants, without arrests or collecting personal information.³³ In some other countries, governments have temporarily extended visas and residency status to undocumented migrants.

Although the United States has no comparable national policy, moderately effective ATDs have been piloted in the United States in recent years. In January 2016, ICE began a 5-year social services–based ATD, the Family Case Management Program (FCMP). FCMP provided more than 900 asylum-seeking families with stabilization services to meet basic needs, including food security and medical care, legal orientation to introduce clients to basic US laws, and compliance visits with case managers to plan for future settlement or deportation.³⁴ Shortly after the inception of the Trump administration, ICE terminated FCMP 3 and a half years early, claiming costs were too high and deportation rates were too low.³⁵ However, FCMP cost far less, at $38.47 per person per day compared with $318.79, than the cost of detention.³⁶ Included in FCMP’s lower costs were essential services that supported participants’ compliance with immigration proceedings while upholding their basic human rights and their ability to practice public health recommendations. Further, according to ICE’s evaluation of the program, families who completed FCMP had 99% compliance rates for monitoring and court attendance.³⁴

FCMP was subject to legitimate criticism. Critics, including the DHS’s advisory committee, raised valid concerns about FCMP being run by the GEO Group, ICE’s top contracted private prison corporation, which operates multiple detention facilities.³⁷ One study also noted that FCMP did not provide families financial assistance and criticized the nongovernmental organization–government collaboration, arguing that it blurs the line between control and care.³⁸ Further, FCMP was a pilot program rather than a permanent, codified shift in the US approach to immigration detention, which is essential for ATD programs to be consistently implemented rather than subject to political discretion.

Nevertheless, the US experimentation with services-based ATDs—and the demonstrated success of other countries that have adopted ATDs on a large-scale, permanent basis—illustrates the feasibility of replacing the current detention-oriented system with one that prioritizes migrants’ health and humanity. Reappropriating ICE’s budget to comprehensive, social services–based ATDs would improve migrants’ health and protect their dignity, while benefiting society more broadly by preserving family and community bonds and reducing the threats to public health created by detention.

RECOMMENDATIONS

The United States must permanently improve its migration policies to adhere to international human rights standards and limit its unnecessarily punitive, harsh treatment of migrants. The US government’s detention of children and adults solely because of their migration status is not only inhumane, detrimental to public health, inconsistent with international law, and widely condemned by the global community but also ineffective as an immigration deterrence tactic.³⁹ Improving policies to shift the focus from detention to ATD programs will reduce the risk of COVID-19 and other infectious diseases spreading among detainees and the wider population, protect essential human rights, and end the costly and ineffective immigration detention system.

Specific considerations about how to design effective, human rights–centered ATDs warrant comprehensive analysis informed by both rigorous research and the experiences of affected communities. As a foundation, however, ATDs should prioritize the dignity, humanity, and fundamental needs of migrants, including by ensuring family unity, restricting movement only as absolutely necessary, and providing referrals to legal and social services. For the many migrants with families or established bonds and responsibilities in the United States, a comprehensive ATD would include being released to their homes, subject to noninvasive requirements for regular reporting to immigration caseworkers. Moreover, strong protections must be in place to safeguard migrants’ basic due process rights, including the rights to a hearing and judicial review of decisions about their status. Notably, past research has shown that ATDs that center migrants’ humanity not only are more likely to uphold human rights standards but also result in higher levels of compliance by participants.²⁵

Further, although protecting migrants’ health, access to education, and basic liberties are human rights imperatives, the benefits extend to our society more broadly. Conversely, violating these rights ultimately affects us all. COVID-19 has demonstrated this acutely: in addition to the more than 8700 detainees who have tested positive for the virus, nearly 1000 workers at immigration detention facilities had confirmed cases of COVID-19 as of July 2020,⁴⁰ increasing the risk of infection among their own families and entire communities. (These numbers are likely far higher now, but a lack of transparency limits the availability of reliable statistics.) If we fail to ensure the health, safety, and fundamental needs of migrants to the United States—a responsibility shown to be irreconcilable with immigration detention—we will likewise fail to create a healthy, thriving society that upholds human rights standards for all.

HEALTH AND HUMAN RIGHTS

COVID-19 has laid bare the vast structural discrimination that persists in the United States and its impacts on health disparities. These inequalities are on full display in the US immigration system, which has subjected thousands of migrant children and adults to deplorable conditions and unacceptable health risks in its detention centers. Federal actions undertaken in the first month of the Biden administration, including DHS’s suspension of the Remain in Mexico policy that banned asylum seekers from entering the United States, signal a potential shift toward more humane immigration policies, but immigration officers still hold considerable discretion over who is detained and subject to the DHS’s ongoing deportations. To respect health and human rights more broadly, our immigration system requires a paradigm shift that necessitates, among other changes, the abandonment of immigration detention. The US detention of migrant children and adults violated international human rights treaties before COVID-19 and will continue to do so after the pandemic ends unless our policymakers correct course by enacting and implementing supportive, safe, and effective alternatives.