Lawrence Hurley, Andrew Chung
The U.S. Supreme Court on Tuesday curbed the ability of immigrants held in long-term detention during deportation proceedings to argue for their release in a ruling in sync with President Donald Trump’s get-tough approach toward immigration.
The court’s conservative justices carried the day in the 5-3 decision that overturned a lower court’s ruling that required that immigrants held by the U.S. government awaiting the outcome of deportation proceedings get a bond hearing after six months of detention to seek their release.
The ruling could lead to indefinite detentions of certain classes of immigrants, including some with legal status who the government wants to deport.
The court’s five conservatives were in the majority in the ruling written by Justice Samuel Alito. Three liberals dissented, including Justice Stephen Breyer, who sharply criticized the decision. Another liberal, Justice Elena Kagan, did not participate.
Class action litigation brought by the American Civil Liberties Union challenged the government’s practice of placing immigrants facing deportation proceedings in detention for months or years without being able to argue for release.
Breyer said that forbidding bail would likely violate the U.S. Constitution’s guarantee of due process under the law. Breyer said he doubted the U.S. Congress, in crafting the immigration provisions at issue, would have wanted to put thousands of people at risk of lengthy confinement without any hope of bail.
“We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have ‘certain unalienable Rights,’ and that among them is the right to ‘Liberty,'” Breyer wrote.
But Alito said that these immigration law provisions cannot be interpreted to limit the length of detention. He called Breyer’s view of the statutes “utterly implausible.”
The case assumed added importance in light of the Trump administration’s decision to ramp up immigration enforcement, with growing numbers of people likely to end up in detention awaiting deportation.
The court threw out a 2015 decision by the San Francisco-based 9th U.S. Circuit Court of Appeals that the government must provide bond hearings to gauge danger and flight risk when detention exceeds six months, and every six months after that. Former President Barack Obama’s Justice Department had challenged that ruling. The Trump administration took up the appeal.
Justice Department spokesman Devin O‘Malley said the 9th Circuit’s ruling had resulted in unnecessary bond hearings, adding to a backlog in the immigration court system.
“We are aggressively working to implement common sense reforms to reduce that backlog, and today’s Supreme Court decision ensures that immigration judges in the Ninth Circuit can focus their valuable docket time on matters actually required by law,” O‘Malley said.
The justices sent the case back to the 9th Circuit to consider the question of whether the Constitution requires bond hearings for detained immigrants.
The ACLU said it looks forward to arguing the constitutional questions in lower courts. “The Trump administration is trying to expand immigration detention to record-breaking levels as part of its crackdown on immigrant communities,” ACLU attorney Ahilan Arulanantham said.
There are roughly 36,000 immigrants held in detention in the United States on any given day, and the ACLU estimates that about 10 to 20 percent have been detained at least six months.
Those suing included immigrants who were held at the border when seeking illegal entry as well as others, including lawful permanent residents who hold so-called green cards, who have been convicted of crimes.
The lead plaintiff was Alejandro Rodriguez, a legal immigrant from Mexico living in California who was brought to the United States as a baby. He was working as a dental assistant when he was detained for three years without a hearing after being placed in deportation proceedings based on two non-violent convictions, joyriding and misdemeanor drug possession.
Although Rodriguez was released eventually, the case brought on his behalf continued.
In dissent, Breyer said that asylum seekers or non-citizens who arrive at the U.S. border still have due process rights.
“We cannot here engage in this legal fiction,” Breyer wrote.
“Whatever the fiction, would the Constitution leave the Government free to starve, beat, or lash those held within our boundaries? If not, then, whatever the fiction, how can the Constitution authorize the Government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States?”
Breyer added, “No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection.”
This marked the second time the high court considered the case. It ordered a new round of arguments after Trump’s conservative appointee Neil Gorsuch joined the bench last year.
Published on Reuters on February 27, 2018
By Mallory Moench
Asylum-seeker Aboubacar Soumah won the right to a bond hearing and a chance to be released from immigration detention two months ago. But he is still behind bars in upstate New York because he can’t afford the $15,000 cash bond set by the immigration judge.
Soumah has only $59 to his name. With no family in the U.S. to help support him, his only way to raise funds is the $1 a day he earns by cleaning tables in Batavia Federal Detention Center where he is locked up.
The asylum-seeker, who fled persecution in Guinea, has been in detention since he arrived across the southern border and presented himself for asylum in July. A psychiatrist diagnosed him with depression and post-traumatic stress disorder, but he has no way to receive proper treatment until he’s released.
Lawyers from the New York Civil Liberties Union (NYCLU) sued the federal government last year for unlawfully denying parole and bond hearings to asylum-seekers in Batavia. They won the case in late November and a federal judge ordered the government to re-adjudicate parole or have their first bond hearing after being held in detention for more than six months.
Thanks to that ruling, nine asylum-seekers have been released on parole since then and another 17 received bond hearings. But the amounts set are often well beyond the ability of the asylum-seekers to pay: In eight cases, bond was set at $15,000; others range from $5,000 to $12,000.
Thirteen detainees have been able to make bail through crowdfunding from friends and family or loans from bail-bond companies. But Soumah is one of at least four detainees who can’t afford to pay at all.
In January, NYCLU filed a motion to challenge how the federal judge’s November ruling was being implemented – with bonds set so high that some asylum-seekers are still detained. NYCLU argued that immigration judges failed to consider whether asylum-seekers could pay the bond, and that detainees shouldn’t remain behind bars just because they’re poor.
“Most of these people have hardly a penny to their name when they fled persecution in their home countries and came to the U.S.," said NYCLU attorney Aadhithi Padmanabhan. "It’s going to be very difficult and in some cases impossible to collect thousands of dollars. There might as well be millions of dollars."
“They are being jailed because of their poverty," she said.
Detained immigrants usually have bond set by the Department of Homeland Security, but asylum-seekers are an exception. Instead, after six months in detention they can get bond hearings before judges in immigration court, which is overseen by the Department of Justice Executive Office for Immigration Review.
A spokesperson for the department said that these judges adjudicate bond on a case-by-case basis. They don’t grant bond if “the alien is a danger to the public or national security” and set an amount that is “required to compel the alien’s presence at future hearings.”
Immigration bond is usually higher than criminal bond and always has to be paid in cash. The law calls for bond to be set at a minimum of $1,500, but it’s often much more. The national average for immigration bonds tripled over the past two decades, according to data from Syracuse University’s Transactional Records Access Clearinghouse (TRAC).
Civil rights groups have sued the federal government multiple times over detained immigrants’ right to win release on an affordable bond. A federal judge ruled in 2015 that immigrants held longer than six months in detention should receive a bond hearing, but it doesn’t always happen.
Andrea Sáenz, supervising immigration attorney at Brooklyn Defender Services, said she and other lawyers in New York City filed at least 50 petitions suing the government to give detained asylum-seekers bond hearings in 2017.
The judge should grant bond unless the government can prove they pose a danger to the community or may run away. Sarah Deri Oshiro, head immigration attorney at Bronx Defenders, explained that if the government can’t prove either condition with clear and convincing evidence but still denies bond, “the bond-seeker’s constitutional rights have been violated.”
But just getting bond doesn’t address whether someone can afford to pay it. Last year, the U.S. District Court for the Southern District of New York ruled that an immigration judge should have considered whether a Haitian asylum seeker could afford bond when setting the amount. Not all judges are required to follow this decision, but NYCLU attorneys argue that they should at Batavia.
“The extremely excessive bond amounts at Batavia not only keep people detained needlessly, but to the extent that they are able to obtain release, they do so at extreme personal cost to them and to their families,” said NYCLU attorney Paige Austin.
Mamadou is a 28-year-old asylum-seeker who prefers to be identified by his first name only because his asylum case is still pending. He was detained at Batavia for 14 months after fleeing ethnic and political persecution in Guinea.
“Sometimes I thought, one year in detention when all I ask for is protection, and I would cry and think about that,” Mamadou said. While in detention, he developed an acute stomach condition that doctors said required an operation, but he was too afraid to have it done because, he said, he didn’t want to die before he saw his family again.
After NYCLU’s successful lawsuit, Mamadou received a bond hearing on Dec. 29, 2017 – the same day as the hearing about his asylum case. He said he was excited but nervous. Some of his fellow detainees had their bonds set as high as $15,000 and Mamadou knew his friend helping him make the payment could never afford that amount.
With pleading from his volunteer attorney, the judge set Mamadou’s bond at $5,000. Mamadou was released from detention on Jan. 2.
“It’s unforgettable for me to have been freed,” Mamadou said. “My friends and family give me everything I need, they’re always giving me food and if I need money for anything. I can’t even eat all the food they’re giving to me. They say, I know you suffered, but now you’re home.”
Families and friends bear the brunt of paying thousands of dollars to get a loved one out of detention. They often turn to bail bond companies, even though many have been exposed for exploitative practices such as charging immigrants up to $400 a month to rent ankle trackers. Most attorneys warn immigrants against using these companies, but sometimes they’re the only options.
One detainee in Batavia decided to use a bail bond company to get out of detention. Austin said she understood his decision, but lamented that he’s now “in bondage”, as she put it – possibly for years before his asylum case is decided.
To avoid using these companies, community organizations try to raise bond funds. Jamila Hammami, director of the Queer Detainee Empowerment Project, estimates she’s raised $40,000 in bail for at least 10 immigrants since 2014.
The average amount was $7,500, although she remembered one gay man from Honduras whose bond was set at $15,000. Hammami said that if she’s not able to raise enough money through personal connections or online platforms, immigrants remain detained until they are granted asylum or deported.
But many asylum-seekers like Soumah, who fled persecution in their home countries, still lack community or family support in the U.S. Until the judge grants him relief, he will remain behind bars, too poor to be free.
Published on WNYC on February 7, 2018
The private security company G4S has today announced that it has suspended nine staff members from an Immigration Removal Centre following allegations of abuse and assaults against people detained.
An investigation has been launched into the allegations ahead of a BBC Panorama programme scheduled to be shown on Monday evening that is reported to include covert footage recorded at Brook House IRC near Gatwick airport. The footage is said to show officers “mocking, abusing and assaulting” people being held there.
The allegations come as Stephen Shaw, a former Prisons and Probations Ombudsman, is due to begin a follow up review on detention. In his original report, Shaw concluded that the UK detains too many people and made 64 recommendations for reform.
Stephen Shaw’s report followed a cross-party inquiry into the use of Immigration Detention carried out by the All Party Parliamentary Groups on Refugee and Migration. The MPs and Peers on the inquiry panel called for wholesale reform of the use of detention in the UK, including the implementation of a 28 day time limit.
Despite Government promises to implement reforms, last week’s immigration statistics show that very little has changed, and the UK remains the only country in Europe to not have a maximum time limit on detention.
Commenting on the news, Refugee Council Chief Executive Maurice Wren said:
“These allegations are extremely concerning, but depressingly predictable too. We work with many asylum seekers and refugees who have been damaged by detention and the arbitrary, unaccountable and indefinite deprivation of liberty that it involves.
“An urgent and thorough investigation into these allegations is vital, of course, but the problems of detention do not start with the misbehaviour of individuals. These are only a symptom of a much deeper rooted problem that is born of the Home Office’s obsession with deterrence, control, retribution and enforcement.
“That obsession has resulted in a detention system that detains too many people, for far too long, and at a huge expense to the taxpayer. Radical reform is now needed, starting with a 28 day time limit as called for by the ground breaking cross-party parliamentary inquiry that reported in 2015.”
Published on Refugee Council on September 1, 2017.
Amid reports of impending closure and an uncertain resettlement deal with the US, migrants seeking asylum in Australia are stuck in Manus Island's detention center and know alarmingly little about their future.
For the so-called "boat people" unlucky enough to find themselves stuck in one of Australia's infamous offshore detention centers, the future is far from certain and a way out is unclear. The largest center is on Papua New Guinea's (PNG) Manus Island. According to the Australian government, as of December 2016, 866 men seeking asylum in Australia were being detained there.
However, PNG Chief Justice Sir Salamo Injia made a surprise announcement Monday that the Manus Island detention center had in fact closed - despite all of the detainees still living in the facility. According to media reports in PNG, the "closure" is merely a technicality.
The detention center has not been moved, but it is now being officially being considered part of the naval base on which it is built. Detainees are also reportedly free to move in and out of the compound.
The move is in ostensible compliance with a 2016 PNG Supreme Court order ruling that the detention of asylum seekers on Manus Island breached the right to personal liberty spelled out in the state constitution and was therefore illegal.
At the time of the ruling, both PNG and Australia appeared to be making progress in talks on how to close the center - although Australia's immigration minister, Peter Dutton, offered no specific details on the future of the detainees beyond a brief statement claiming that "a series of options are being advanced and implemented."
On March 1, Reuters reported that dozens of asylum seekers being detained on Manus Island accepted a cash deal of up to 25,000 Australian dollars (17,800 euros) in exchange for voluntarily returning to their home countries. The 29 men who reportedly left represent the largest number leaving the island in four years.
Other Efforts to resettle some refugees in PNG have failed, with many being forced to return to the detention center after being assaulted or robbed by locals.
The Director of Migration and Border Policy at the Lowy Institute for International Affairs in Sydney, Dr. Jiyoung Song, told DW that there are still too many uncertainties over where the detainees can be relocated to.
"I understand the government is still in negotiation with relevant parties," she said. "Australia hopes that the United States will take them [asylum seekers], but it is still unclear whether the deal will be implemented on which scale or when."
US deal in troubled waters
The potential US solution was the result of a deal made in November 2016 following a year of negotiations with the Australian government. The US had reportedly offered the one-off agreement to resettle refugees currently being held on both Manus Island and Nauru.
But a few months on, the future of the deal is looking less assured. The biggest concern at this stage is the unpredictablity of US President Donald Trump. Although the deal was organized under his predecessor Barack Obama, a change in US administration usually does not threaten finalized negotiations made by a previous government.
"President Trump's anti-immigration and US-first rhetoric has had an impact on his commitment to delivering his predecessor's agreed deal with Australia," said Song, "Mr. Trump abruptly ending his phone call with Prime Minister Turnbull doesn't look like a good signal for his commitment to the deal, although he did say he would honor the deal with extreme vetting over those to be transferred to US soil."
The US's refugee processing system is notoriously long and rigorous, meaning applicants could wait up to two years in offshore detention while processing takes place - time which those stuck on the Manus Island detention center may not have. Shortly after the original deal was made, US Homeland Security officials arrived in Australia to begin the vetting process, although it is unclear if this process has been stalled.
Australia's prime minister has reiterated that recent events will not affect the US's original commitment to take refugees from the offshore detention centers.
But even if the deal is successfully implemented, the women and children being held at the other Australian detention center on Micronesia's Nauru Island are far more likely to be given preference for resettlement in the US, leaving the future of Manus Island detainees even more uncertain in the wake of its alleged imminent closure.
'Ring of steel'
The Manus Island detention center was originally built in 2001 as part of Australia's so-called Pacific Solution - a government policy which saw asylum seekers transported to detention centers on Pacific island nations instead of the Australian mainland.
Although the policy enjoyed bipartisan support, the center on Manus Island was closed for a period of time in 2008 before controversially re-opening in 2012 due to an increase in irregular maritime boat arrivals.
Following an increased number of drownings at sea, the renewed policy centered on the premise that the ends justified the means. Since 2009, more than 600 asylum seekers have died en route to Australia.
The area around the northern coast has subsequently been described as a "ring of steel" by Australian government sources.
Along with its Nauru counterpart, the Manus Island detention center has sparked much controversy, with numerous reports of assault, mental illness and self-harm among detainees.
Notable incidents include the riots in February 2014 which resulted in the murder of 23-year-old Reza Berati and the death of 24-year-old Hamid Kehazaei in August of that year after an urgent medical transfer to the Australian mainland was significantly delayed. In January 2015, up to 700 men took part in a hunger strike which lasted two weeks.
Scarcity of information
Any information coming out of Manus Island tends to raise more questions than it answers.
Immigration expert Song said the current outlook for detainees in offshore detention is bleak, with the Australian government quickly running out of options.
"Australia will have to find another third country option,” she said. "New Zealand has already offered but Australia turned it down as it's too close to Australia. It may try Canada, or go back to the Malaysia option again, which failed under the Gillard government."
"It may revisit the Cambodia option. As far as the public know, only five went there and three have left." Song added that asylum seekers didn't come to Australia to be settled in Cambodia, a developing and non-democratic country that is probably not entirely safe for asylum seekers. "Nobody wants to go, so this option, although it's still alive, is not a working one."
This article was published on DW's website on March 16, 2017.
By Patrick Wintour
Human rights groups have heavily criticised a vote by the Hungarian parliament to force all asylum seekers into detention camps as the country’s prime minister, Viktor Orbán, called migration “a Trojan horse for terrorism”.
The asylum seekers will be kept in converted shipping containers while they wait for their cases to be heard via video-link as part of measures Orbán said were designed to save Europe. He considers the migrants, many of whom are Muslims, as a threat to European Christian identity and culture.
The measure was fiercely opposed by civil liberties groups in the country and some socialist MPs but was nevertheless passed overwhelmingly by 138 votes to six with 22 abstentions. Support came from Orbán’s Fidesz party and the far-right Jobbik.
Amnesty International, one of a consortium of seven civil rights groups to protest against the new regulations, said the proposals would breach EU law and the refugee convention. “Dumping all refugees and migrants into containers isn’t a refugee policy it’s avoiding one,” the group said in a statement, denouncing the Hungarian moves as a “flagrant violation of international law.”
Gauri van Gulik, Amnesty’s deputy director for Europe, said: “Rounding up all men, women and children seeking asylum and detaining them months on end in container camps is a new low in Hungary’s race to the bottom on asylum seekers and refugees.”
Amnesty called on the European Union to take action against Hungary’s “illegal and deeply inhumane measures.”
The United Nations refugee agency said the new law “violates Hungary’s obligations under international and EU laws, and will have a terrible physical and psychological impact on women, children and men who have already greatly suffered.”
Asylum seekers in Hungary, which hundreds of thousands entered in 2015 in the hope of reaching western Europe, can at present be held for up to four weeks if they are apprehended within five miles of the border, but the new rules remove the time limit and will apply countrywide. Unaccompanied minors below the age of 14 will be put in the care of the country’s child protection services.
The Hungarian government stressed that any detained asylum seekers would be free to leave at any point, as long as they drop their claim and return to either Serbia or Croatia, the two countries through which refugees have mainly been arriving.
The law, due to come into force in a week, will also require asylum seekers to have their fingerprints and photographs taken, or be thrown out of the country for non-cooperation. It also makes it easier to declare a state of emergency designed to ensure that no one can enter Hungary and the EU without permission.
A statement from the seven civil rights groups, which includes the Hungarian Helsinki Committee and MigSzol, the Migrant Solidarity Group of Hungary, said extension of the current state of emergency due to migration to September “only serves to maintain the xenophobic, fear-mongering propaganda.” It said there were “hardly 400” asylum seekers in the country at present.
A total of 391,000 people arrived in Hungary illegally across the green border in 2015, the Hungarian government claims, of whom 177,000 submitted requests for asylum but only 5,000 waited until their asylum proceedings were completed.
Hungary accepted 502 asylum seekers in 2015 and 425 in 2016. Germany took in 890,000 asylum seekers in 2015 and 280,000 in 2016.
There have also been claims, rejected by the government, in the Swedish press that the Hungarian border guards have been attacking asylum seekers. Media access to the camps is restricted.
Orbán said at an oath-taking ceremony for border guards, called “border-hunters” by the government, on Tuesday that the arrival of asylum seekers might have ebbed since 2015 but it had not come to an end.
He said Hungary had to act on its own since the migration crisis would last until its causes are removed and the EU could not be relied upon to do so.
“We are still under attack,” Orbán insisted. “The pressure on Hungary’s borders will not cease in the next few years because millions more people are preparing to set off in the hope of a better life. The storm has not blown itself out.”
He added: “Migration is the Trojan wooden horse of terrorism. The people that come to us don’t want to live according to our culture and customs but according to their own at European standards of living.”
The refugees are expected to be kept at two or three camps on Hungary’s southern border.
In addition, Hungary is pressing ahead with a second electrified fence along the Serbian-Hungarian border due to be completed by 1 May. The new barrier, stretching for nearly 100 miles (150km), will enable the border to be monitored using CCTV and thermal cameras, and other technological equipment.
A government spokesman said: “Thanks to the new technology, a low voltage, and completely safe current will also be flowing through the fence, which will send an alarm to border control authorities if any attempts are made to damage the fence.
“The goal to be realised by the fence is exactly what the Austrians want too, that nobody is able to cross the border who will need to be sent back later because they are in the EU illegally.”
This article was published on The Guardian's website on March 7, 2017.
Another victory for the American Civil Liberties Union (ACLU).
The ACLU brought a claim on behalf of detained asylum-seeking mothers and children in order to challenge a Government's policy of detaining asylum-seekers "as a way to deter others from coming to the United States". This policy was described as an "aggressive deterrence strategy".
The claim was filed in U.S. District Court in Washington, D.C., which ordered a preliminary injunction that puts an immediate halt to the government's policy.