A recent federal case highlights a growing human rights concern: the detention policies of the U.S. Immigration and Naturalization Service (INS or Service). The decision is particularly timely as the Service begins to detain more aliens under the mandate of a 1996 provision that took effect on October 9.

The district court case, Jama v. INS, Civ. No. 97-3093, U.S. Dist. LEXIS 15454 (D.N.J. Oct. 1, 1998), centers on the treatment of asylum applicants held at an Elizabeth, NJ facility run for the Service by Esmor Correctional Services Inc. (Esmor), a private company. The Service closed the facility on June 18, 1995, after a riot over the conditions of detention. Some of the plaintiffs are now detained at other facilities, some were deported; the others have since been granted asylum. (According to recent newspaper accounts, the New Jersey facility has been reopened by the Service under different private management, with those detained there now on a hunger strike in protest of their conditions.)

Senior Judge Dickenson R. Debevoise ruled that immigrants seeking asylum can sue for damages over the abusive conditions of their confinement. In reaching that conclusion, Judge Debevoise summarized the conditions allegedly suffered by plaintiffs, who had no criminal record and were not charged with a crime. "Every moment of plaintiffs’ detention was filled with abuse. They could not escape from these abuses even in their dreams, as they were not permitted to sleep — bright lights shone on them 24 hours a day, and guards woke them up just to taunt them." The dormitories "were filthy and constantly smelled of human waste and other noxious odors," and the clothing provided was no better. When the plaintiffs asked for cleaning materials they were beaten. The dormitories contained their showers and toilets, forcing the plaintiffs to eat only inches away from the bathroom areas, and to be observed by anyone who passed when they used those facilities. Moreover, the guards subjected them to sexual, racial, and ethnic remarks, to strip and body-cavity searches in a manner designed to degrade them, and to sexual abuse. The guards also forced them to work without compensation, and denied them the opportunity to practice their religious rituals.

The allegations in Jama are not isolated. On September 9, Human Rights Watch issued a report, "Locked Away: Immigration Detainees in Jails in the United States," criticizing INS detention policies generally, and particularly as they affect those who seek asylum. The report is based largely on research conducted over an eighteen-month period in seven states – Florida, Illinois, Louisiana, Maryland, Pennsylvania, Texas, and Virginia. It points out that asylum seekers are usually fleeing abusive treatment by their own governments and are protected by international refugee law. The 84-page report claims that the INS violates international standards when it detains asylum-seekers in local jails where they are mixed with prisoners serving a sentence or awaiting trial, and with other INS detainees, some of them recently convicted criminals. Kenneth Roth, Executive Director of Human Rights Watch, argues: "In most cases, the INS should not be detaining these people at all, much less in jails."

Amnesty International, in a newly issued report, "Rights for All," for the first time accuses the United States of human rights violations. Chapter 5 of that report, entitled: "Treated as Criminals: Asylum-seekers in the USA," sees the same problems as Human Rights Watch and comes to similar conclusions. Its description of the way the INS treats asylum-seekers could have come from Judge Debevoise’s decision:

They are held in conditions that are sometimes inhuman and degrading. Asylum-seekers in the USA are liable to be treated like criminals: stripped and searched; shackled and chained; sometimes verbally or physically abused. They are often denied access to their families, lawyers and non-governmental organizations (NGOs) who could help them.

The Amnesty International report also refers to conclusions of the Executive Committee (EXCOM) of the UN High Commissioner for Refugees (UNHCR), considered authoritative in the field of refugee rights. According to EXCOM, of which the United States is a member, detention of asylum seekers "should normally be avoided," the onus being with the detaining authorities to justify why other measures won’t work. Yet, under expedited removal proceedings enacted in 1996, even when arriving passengers establish a credible fear of persecution, most of them are detained until the actual grant of asylum. See Migration News, Oct. 1998.

Before early 1998, release was generally denied everywhere but New Jersey. Since then, in the absence of a national policy, it has been hard to predict whether parole will be granted even for those who have passed the credible-fear test. Tracking changes in parole policy, Donald M. Kerwin and Charles Wheeler, in "IIRIRA’s Detention Mandates: An Exercise in Overkill," 75 Interpreter Releases 1433 (Oct. 19, 1998), note that it is now difficult, even for such asylum seekers, to win parole in Los Angeles, New York, and New Jersey. By contrast parole is virtually automatic in Miami, where it used to be rare. The decision in each case seems to turn more on the availability of bed space than individual likelihood of flight. Lacking is a national policy that sets such criteria as documentation of individual sponsorship or support from within the community, and evidence that the person will attend immigration hearings as scheduled.

Amnesty International notes four types of detention facilities used to incarcerate asylum seekers: state and local jails; INS "service processing centers" (SPCs); and prisons run by the Federal Bureau of Prisons. (Children and unaccompanied minors are held at a variety of facilities.) Amnesty charges that the INS relies heavily on standards produced by the American Correctional Association for the incarceration of prisoners – standards that are inappropriate to asylum-seekers.

Although the Service is seeking to upgrade its detention practices, its proposals do not cover local and county jails, where over half of all INS detainees are held. "INS officials concede," according to Donald M. Kerwin, "that it reviews local jails at most once a year based on a check-list that does not require 100 per cent compliance. Appointed by the [INS] district Director, monitoring teams announce their visits in advance and view themselves as ‘guests’." "Throwing Away the Key: Lifers In INS Custody," 75 Interpreter Releases 658 n.99 (May 11, 1998). INS contracts do not require state and local jail officials to treat INS detainees any better than criminals. Donald Kerwin & Charles Wheeler, supra.

Although the INS claims that it tries to deal with their "unique circumstances" by placing them in INS-run facilities, asylum-seekers continue to make up the majority of detainees in a private facility run for the Service in New York City, and one third of those held in a corresponding facility in New Jersey. Donald Kerwin & Charles Wheeler, supra. INS contracts with those facilities don’t specify any more than the most basic services, despite the bargaining power that INS has as a major customer.

As the mandatory detention provisions in section 236(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1226, kicked in on October 9, the Service may now have to rely even more on local jails and on detention centers operated by private contractors like New Jersey’s Esmor. Delayed for two years at the Department of Justice’s request, these provisions require the INS to detain virtually anyone subject to removal under the immigration laws for a criminal conviction as soon as that person is released from prison, including lawful permanent residents. See 8 C.F.R. § 236.1(c), as amended, 63 Fed. Reg. 27,441 (May 19, 1998). INS officials admit that they are not prepared to take the additional 3,000 to 10,000 persons targeted, and will find it difficult to do so without more funding. Meanwhile, feeding these aliens into the INS detention system will mean a further deterioration of the conditions of confinement generally. This is particularly bad news for asylum-seekers.

Human rights advocates have several recommendations to ease the tension between Congress’s determination to speed the process of "removal" (exclusion and deportation) and the rights of those caught in the maws of that process. For example, individuals released before the mandatory detention rules took effect on October 9 should not be redetained. The INS may have already agread to this sensible interpretation. Memorandum from Melanie Nezer, Immigration and Refugee Services of America, to interested colleagues (Oct. 8, 1998). Nezer argues more generally that mandatory detention of aliens who pose no danger to the community or risk of flight raises serious constitutional questions.

Donald Kerwin and Charles Wheeler argue that Congress must either increase funding for detention or ease the mandatory detention provisions. They recommend repeal of those provisions, and reversion to the pre-1997 standard of flight risk of danger to the community. Failing that, they urge amendments that would permit a relaxed standard of detention for lawful permanent residents and others with close ties to the community, "so that they may be reunited with families and resume productive lives while they defend against deportation." They also propose the release of asylum-seekers who have established a credible fear of persecution, under a national parole standard that permits individualized parole decisions. And they would centralize the INS prison system, making INS district directors subject to national standards that would apply as well to state and local jails and privately-run facilities.

Amnesty International recommends against the detention of asylum-seekers. Authorities who seek detention should have to demonstrate the need in an individual case by means of a prompt, fair hearing. In any event, asylum-seekers who have passed the "credible-fear" test should be released, save for exceptional and compelling reasons. Amnesty International also urges that U.S. detention systems differentiate between asylum-seekers and other migrants. If the detention of asylum seekers is justified, they should be detained "in facilities appropriate to their circumstances, in line with international standards."

In 1987, the Fifth Circuit noted that it "[could not] conceive of any national interests that would justify the malicious infliction of cruel treatment on a person in United States territory simply because that person is an excludable alien." Lynch v. Canatella, 810 F.2d 1363, 1374. The court held that "whatever due process rights excludable aliens may be denied by virtue of their status, they are entitled under the due process clauses of the fifth and fourteenth amendments to be free of gross physical abuse at the hands of state or federal officials." Id.

When INS officers or others abuse detainees, they can be sued for damages, as illustrated in the Jama case, discussed at the beginning of this article. Judge Debevoise dismissed one count of the suit, brought under the Alien Tort Claims Act (ATCA), against the INS itself, allowing the plea of sovereign immunity. But he refused to dismiss the ATCA claim against the individual INS officials sued, or against Esmor and its employees. And the case goes forward against them, and the Service as well, on other theories of action.

But apart from the threat of legal sanctions, rather as a matter of sensible policy and international practice, our government should give special protection to those who seek asylum in this country. For them, detention should be the exception, not the rule.

Biographical information: Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, the leading immigration law treatise, published by Matthew Bender & Co, Inc. (www.bender.com). Mr. Mailman is counsel to Satterlee Stephens Burke & Burke in New York City. He can be reached at smailman@ssbb.com. Mr. Yale-Loehr is of counsel at Miller Mayer in Ithaca, New York (www.millermayer.com), and teaches immigration law at Cornell Law School. He can be reached at syl@millermayer.com.

This article originally appeared in the October 26, 1998 issue of the New York Law Journal (www.ljextra.com). Copyright © 1998 the New York Law Publishing Company. The authors thank the Journal for permission to reprint this article.