Locked Away: Immigration Detainees in Jails in the United States

I. SUMMARY AND RECOMMENDATIONS

The U.S. Immigration and Naturalization Service (INS) is currently housing more than 60 percent of its 15,000 detainees in local jails throughout the country. Faced with an overwhelming, immediate demand for detention space, the agency has handed over control of its detainees to local sheriffs and other jail officials without ensuring that basic international and national standards requiring humane treatment and adequate conditions are met. INS detainees-including asylum seekers-are being held in jails entirely inappropriate to their non-criminal status where they may be mixed with accused and convicted criminal inmates, and where they are sometimes subjected to physical mistreatment and grossly inadequate conditions of confinement.

INS detainees are in administrative detention; that is, they are not serving a criminal sentence or awaiting trial on criminal charges. But since the INS has decided to contract with local jails and has refused to insist on separate, special treatment of immigration detainees who are held in these jails, an INS detainee's experience in a local jail is no different from that of a local inmate.

Asylum seekers, in particular, are protected by international refugee law and deserving of special treatment. Asylum seekers should never be held in local jails. In fact, international standards urge governments to detain asylum seekers only in exceptional cases. Nevertheless, the INS does not differentiate between asylum seekers and other immigration detainees, and they are sent to jails around the country without regard to their particular legal and psychological needs.

Holding INS detainees in local jails is an expensive endeavor for the federal government, but INS detainees are a desirable source of profit to local jails. Jails charge the INS between $35 and $100 per day, per detainee. The INS estimated that in 1997, it paid an average of $58 a day per detainee to local jails; this means that in a six-month period, more than $10,000 federal dollars are spent to hold just one INS detainee. In some states, local taxes have been eliminated due to the profit made through housing the INS's detainees.

Over the past eighteen months, Human Rights Watch has interviewed more than 200 INS detainees in fourteen local jails in seven different states. We have also received hundreds of letters and telephone calls from detainees held in local jails scattered around the country describing poor conditions and mistreatment. Human Rights Watch researchers have interviewed INS officials, jail officials, immigration judges, immigrant rights advocates, and attorneys representing INS detainees in immigration proceedings. This report also relies upon documents obtained from the INS through Freedom of Information Act requests, legal documents, and press reports.

Among our findings:

· The INS has failed to provide oversight or to insist on humane conditions and treatment in the local jails with which it contracts to hold INS detainees. There are no laws, federal regulations, or national INS policy governing how local jails holding INS detainees should be inspected and monitored. Once detainees are placed in a jail, INS contact with detainees is usually infrequent, even though they remain the INS's ultimate responsibility.

· Jail officials state that INS detainees "are treated just the same as regular inmates" even though INS detainees are held for administrative, not criminal, purposes and should not be subjected to punitive or rehabilitative treatment.

· The INS has begun to institute detention standards in its Service Processing Centers (SPCs) and contract facilities, but the standards are not being implemented at local jails, where the majority of INS detainees are currently held and where future increases in detention will be absorbed.

· Medical and dental care are substandard in many of the jails holding detainees.

· migration detainees. As a result, many detainees do not have legal representation which undermines their ability to present their cases and removes a critical element of monitoring treatment of INS detainees in the local jails.

· Jail staff are often unable to communicate with INS detainees due to language barriers.

Many INS detainees interviewed by Human Rights Watch who were held at local jails have been subjected to physical mistreatment at the hands of correctional officers. In a dramatic case now unfolding, INS detainees held in Jackson County Jail in Florida alleged that jail officials administered electric shocks on shackled detainees in July 1998. Nine guards pleaded guilty or were convicted in 1998 for physically abusing INS detainees held in Union County Jail in New Jersey. INS detainees in local jails in California, Louisiana, New Hampshire, and elsewhere have held hunger strikes during the past year following incidents of alleged mistreatment and to protest poor conditions.

The detainees described in this report are in INS custody for a variety of reasons. Some are individuals fleeing persecution in their home countries who are seeking asylum in the United States; they are usually detained after arriving at a port of entry without proper documentation. Others have been picked up by the U.S. Border Patrol on the street or during workplace raids. Some detainees have served criminal sentences in the United States and are awaiting deportation to their home countries. Still others were detained by the INS after the 1996 immigration laws required that individuals who were previously sentenced to a year or more for certain criminal offenses (whether or not their sentences were suspended) be identified, detained, and deported.

The INS makes decisions about where to hold detainees and how often to transfer them based primarily on availability and cost of bed space in local jails. It rarely considers detainees' family ties or legal representation. For example, individuals may be taken into INS custody at an airport or workplace in New York, sent to a jail in Pennsylvania and then find themselves in rural Louisiana to await a court hearing or appeal decision. Furthermore, INS detainees are frequently transferred from one jail to another without warning or justification. Some detainees have been held in as many as eight jails and facilities in a year's time: the detainees receive little, if any, prior warning of their moves no reason for the relocation, no opportunity to notify family members, and, if the detainee is represented by an attorney, the attorney is rarely notified of the transfer. The transfer may be to a nearby jail or to a jail in a state thousands of miles away.

Many detainees interviewed by Human Rights Watch were confused, frustrated, or scared by their situation. They did not know the status of their immigration cases or when they would have a hearing, why they were being held in jails, or how to get legal assistance. They believed they were forgotten by the INS, which rarely has staff on site at jails and is not responsive to detainees' requests for information about their cases. Frequent transfers only exacerbated their confusion.

In addition, long periods of incarceration with little to do and no knowledge of when they would released caused severe emotional distress in many detainees. Mental health needs of detainees are not adequately met, and distressed suicidal detainees are often treated by jail officials as disciplinary problems. Many expressed anxiety over being held with accused or convicted criminals; some detainees were so ashamed of being held in a prison-like situation that they did not contact their families.

Some immigration detainees cannot be deported because they are stateless, or because neither their own country nor any third country will accept them. Human Rights Watch believes that when immigration detainees are held indefinitely and do not know when, if ever, they will be released, their detention becomes arbitrary even if the initial detention was carried out in accordance with law. Most individuals indefinitely detained are citizens of countries with which the United States has limited or no diplomatic relations or which simply refuse to accept their citizens who have emigrated or fled. Other detainees are held indefinitely because they are "stateless" meaning that no legal state will recognize their nationality. Given the fact that jails are designed to be punitive and rehabilitative institutions, and considering the extremely poor conditions in many of the jails in which INS detainees are held, this form of detention differs very little from an open-ended criminal sentence.

Despite the shortage of detention space, and the frequently inhumane and costly "short-term" solutions now in place, the INS has been slow to develop release programs or to utilize alternatives to detention that already exist. For example, the INS's parole plan for asylum seekers, called the Asylum Pre-Screening Officer program (APSO), has suffered from insufficient funding and inconsistent application by INS district directors. The INS has also contracted with the Vera Institute of Justice to undertake a pilot program of supervised release of immigrants (not only asylum seekers) in removal proceedings in the New York City and Newark, New Jersey INS districts. The program allowed the Vera Institute to screen immigrants after they were apprehended by the INS, to choose those who meet certain criteria, and to assist and supervise them during immigration hearings. Initial results indicate that the project is an effective alternative to detention; more than 80 percent of the participants are complying with all court appearances. Still, the INS has limited the program of the Vera Institute geographically and does not currently allow asylum seekers who have proven a credible fear of persecution in removal proceedings to be considered for release.

General Recommendations:

· Detention facilities used by the INS should reflect the non-accused, non-criminal status of all INS detainees. Therefore, the INS should not house its detainees in local jails, prisons, or any other facility intended to hold criminal populations.

· Asylum seekers, as a general rule, should not be detained. The right to seek and enjoy asylum is a basic human right; individuals must never be punished for seeking asylum in the United States.

· Until the INS ceases using jails to hold its detainees, those detainees should be held in sections of the jails separate from accused and criminally convicted inmates.

· Given the shortage of detention space readily available to the INS and the tremendous human and financial costs of contracting with local jails, non-custodial alternatives to detention should be explored before any decision to detain an individual is final.

· The INS must implement detention standards immediately and must require that any jail with which it contracts meets the treatment and condition requirements.

· For reasons beyond their control, many INS detainees are held indefinitely because they are stateless or are nationals of a country with limited, or no, diplomatic relations with the United States. The INS must address the problem of indefinite detention and implement release programs for those with no hope of being returned to their countries of origin.

· The INS must participate in any jail disciplinary proceedings against INS detainees that would adversely affect the conditions or treatment for their detainees.

Detailed Recommendations

To the INS:

Detention of Immigrants

· All detention facilities used by the INS should reflect the non-accused, non-criminal status of all INS detainees. Therefore, the INS should never house its detainees in local jails, prisons, or any other facility intended to hold accused or convicted criminal populations.

· Given the shortage of detention space available to the INS and the tremendous human and financial costs of contracting with local jails, non-custodial alternatives to detention should be implemented before a decision to detain an individual is final. The INS should develop these alternatives in consultation with nongovernmental organizations with expertise in meeting the legal, cultural, and psychological needs of INS detainees. Non-custodial alternatives may include unconditional release or conditional release. Conditional release includes: supervised release to community organizations or family members; regular reporting requirements; or bail or bond options.

· All decisions to detain immigrants should be automatically and promptly referred for review to a judicial or other competent authority. A review should consider the legality of the decision to detain and the substantive need for detention; it should also require periodic review to prove a compelling need to prolong detention. Detainees and their legal representatives should have the right to attend all review hearings and to present evidence to demonstrate their case.

· All places of detention used by the INS must be specialized facilities intended to hold only INS administrative detainees. Detention conditions must reflect the non-criminal status of detainees and, at a minimum, must conform with the international standards regarding individuals in administrative detention found in the United Nations Standard Minimum Rules for the Treatment of Prisoners and the United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

· The INS should maintain current statistics about the number of people in detention; the number of asylum seekers in detention; length of detention of asylum seekers and other immigrants; and the number and location of all facilities, including local jails, used to hold detainees. All such statistics should be made publicly available.

Detention of Asylum Seekers

·Asylum seekers, as a general rule, should not be detained. The right to seek and enjoy asylum is a basic human right; individuals must never be punished for seeking asylum in the United States.

· Detention of asylum seekers is inherently undesirable. All decisions to detain asylum seekers must be made on a case-by-case basis. Detention is justified only when it is strictly necessary to: verify an asylum seeker's identity to a reasonable and practicable extent under the circumstances; determine whether an asylum seeker is asserting elements upon which a claim for asylum could be based; or protect national security, enforce criminal law, or protect public safety in the same circumstances and with the same legal protections afforded U.S. citizens. Detention may also be justified when an asylum seeker has a history of repeated or unjustified failures to comply with reporting requirements imposed by the INS or the immigration court, or has failed to leave the country following the exhaustion of all appeal procedures.

· Detention of asylum seekers should not be based on the unwitting or necessary use of false documents required in order to flee persecution and gain access to the United States where they are seeking protection.

· Asylum seekers may only be detained after meaningful opportunities for release have been utilized by the INS.

· The Asylum Pre-Screening Officer (APSO) program, allowing unsupervised parole of asylum seekers who illustrate a credible fear of persecution, should be fully and consistently employed in all thirty-three INS districts. INS headquarters must monitor implementation of the APSO program; INS districts with low release rates should be reviewed and misguided practices should be corrected.

· The INS should also continue to develop and implement alternative supervision or reporting systems. These alternatives could include secure shelter care, group homes, or individual sponsorship by nongovernmental organizations. Joint initiatives between the INS and other non-profit groups, such as the Appearance Assistance Program of the Vera Institute of Justice, should be supported and expanded in all INS districts.

· Asylum seekers in expedited removal proceedings who are found to have a credible fear of persecution in their countries of origin should not be detained unless specific security concerns, which individuals must have a right to know and rebut, can be proven.

· When detained, asylum seekers should never be held in jails, prisons, or prison-like situations and should never be commingled with accused or convicted criminal inmate populations. They should be held separately from other INS detainees.

Detention Conditions for All Detainees

· The INS should create comprehensive national standards applicable to all facilities in which INS detainees are held. These standards should be applicable to local jails for as long as they are used by the INS. All written detention standards already issued by the INS for Service Processing Centers and contract facilities should be immediately extended to all INS detainees held in local jails.

·All final detention standards should be promulgated as federal regulations and subjected to a public comment period.

· The INS should create a detention oversight office in its headquarters to create and implement detention standards, to monitor detention conditions and treatment of INS detainees, and to ensure compliance with minimum standards of treatment.

· All jails used by the INS should be inspected at least every six months. Additional unannounced inspections should take place in the interim. When a particular facility fails to meet any of the enumerated national detention standards, it should be given until the next inspection to remedy all shortcomings. If at the time of the subsequent inspection a jail continues to fail to meet the required standards, the INS should terminate its contract with the facility.

· Given the growing immigrant detainee population and the increasing concerns about their treatment, the INS should create an Advisory Commission on Immigration Detention. The commission should include representatives from the INS's Office of Field Operations and the proposed detention oversight office, as well as representatives from regionally diverse nongovernmental and legal organizations with demonstrated concern and knowledge about conditions and treatment in detention. The commission should have access to all detention-related records of the INS, including contracts with local jails and complaints filed by INS detainees regarding inadequate conditions and physical abuse in detention (see reporting requirements below) in order to monitor all places of INS detention, including Service Processing Centers, contract facilities, jails, prisons, or other facilities where INS detainees are held.

The commission should meet quarterly and should, among other duties: review the INS's facility inspection reports; identify patterns in types of complaints or recurring problems at certain facilities; investigate select complaints; share information with each other about emerging issues of concern and plans for addressing those concerns; and monitor implementation of detention standards. When patterns of poor conditions or mistreatment ofINS detainees emerge in a particular facility, the commission may recommend that a particular contract be terminated.

When serious allegations are brought to the commission's attention that may be criminally prosecutable, the commission should refer the information to local and federal prosecutors for possible action. When patterns of abuse or substandard conditions are detected, that information should be provided to the Civil Rights Division's Special Litigation Section.

Minimum Standards Required in All INS Contracts with Local Jails

Local jails are inappropriate places to hold asylum seekers and immigrants, but until their use by the INS is terminated, all new and existing contracts between the INS and local jails must require that each jail is capable of, and continues to meet, the following minimum conditions:

· INS detainees should never share cells or living areas with local inmate populations in the jail facility.

· Local facility handbooks that clearly outline detainees' rights and responsibilities should be given to all detainees upon entering a jail. Handbooks should be available in the languages of the detainees likely to be detained there. For detainees who speak a language for which no translation is available, as well as for those detainees who are illiterate, the handbook should be read to them and an acknowledgment form signed indicating that they have understood their rights and responsibilities. Handbooks should include instructions about how to file a complaint regarding conditions or treatment.

· Physical restraints (e.g. shackles, four-point restraints, handcuffs, restraint chairs) and solitary confinement should never be used to punish INS detainees.

· Physical restraints may be used only as strictly necessary to protect INS detainees who are a danger to themselves or others. Whenever restraints are used on INS detainees, the local INS district office must be notified within one hour and any continued use must be justified by jail officials and authorized by the INS.

· Complaint procedures should be in place to allow detainees to lodge complaints regarding conditions of detention or mistreatment by officials, inmates, or fellow detainees. Complaints received by jail staff should be immediately forwarded to the local INS district office. Jail staff should respond to complaints in a fair and timely manner and must fully explain their responses. All responses must also be forwarded to the local INS district office and the proposed detention oversight office in INS headquarters.

·Medical screening should be completed upon a detainee's arrival at a jail to detect mental and physical health needs. Special attention should be given to individuals who may have suffered trauma due to experiences in their countries of origin and should include detection of suicide risk. Medical staff should be trained on the special problems of asylum seekers, including the risk of trauma-induced illnesses, and should be trained to screen for sexual and gender violence. Daily access to regular medical care and mental health counseling and 24-hour emergency care should be available. Interpreters should be available in person or by phone for all medical visits.

·Health and gynecological needs of female detainees should be met, including access to female health service providers and female interpreters, access to routine gynecological exams and obstetrical services, and provision of basic needs such as sanitary supplies.

·Full dental care should be provided and should include restorative surgery or fillings. Dental care should not be limited to extractions.

·A current and accurate list of local organizations that provide immigration advice and legal representation should be given to every detainee upon entering the facility. Additionally, an updated legal service provider list should be posted next to every pay telephone used by INS detainees.

· Law libraries with updated immigration legal materials should be created and maintained. Available materials should include the list of reference material in the INS detention standards on legal materials issued in January 1998. Photocopiers should be available to copy legal papers and other relevant jail paperwork.

· Detainees should have generous access to telephones in private, quiet areas that allow free local calls. Free calls, even if long-distance, should be allowed in special circumstances such as family emergencies, to contact out-of-state legal counsel, and to contact embassies and consulates. All telephones should also allow international collect calls and toll-free calls. Telephones should not be programmed with an automatic cut off after a certain period of time, and if they are, multiple consecutive calls must be allowed. Pre-arranged incoming calls from legal representatives of other detainee advocates must be allowed and facilitated by jail officials.

· A minimum of one hour daily outdoor exercise should be permitted.

· Religious practices should be allowed and facilitated and adequate space for religious services provided. Religious practices include: the right to be visited by a representative of a particular religious denomination; the right to have any special diets based on religious beliefs respected and accommodated; the right to wear religious apparel; and the right to receive religious materials.

· Detainees should be allowed to participate in all educational, vocational, and other programs available to criminal inmates, but jail officials should understand that criminal rehabilitation is not an appropriate goal of administrative detention.

· Detainees should be allowed, but not required, to work in the jail in the same circumstances and under the same conditions as local inmates.

· Jail officials should be specially trained on the needs of asylum seekers and immigration detainees. Some staff should be able to speak the languages of detainees, or detainees should be transferred to a facility where staff are able to communicate with them.

· Jails should create generous visitation policies for INS detainees. Contact visits should be allowed, minor children should be allowed to visit, and visits should be for a minimum of two hours and extensions should be allowed if circumstances warrant. INS detainees should not be required to place visitors on a visitation list. Restrictions on visitors should be limited to requirements of proof of identity and detainee consent.

· Legal representatives should be allowed to visit by producing only the name of a detainee; no proof of legal representation should be required. Certified representatives and paralegals should be allowed legal visits on the same terms as attorneys, along with interpreters, medical personnel, or others assisting in the legal visit.

· Representatives of nongovernmental organizations wishing to visit a detainee should be required only to present proper identification of organizational affiliation and the name of the detainee they wish to visit.

· Reasonable media access should be allowed and journalists should be permitted to interview INS detainees with detainees' consent. Freelance and independent journalists should be accorded the same access as members of major newspapers or television networks.

Monitoring Local Jails

· An INS officer should be placed at each local facility to assist detainees and monitor conditions of confinement, allegations of mistreatment, and the use of disciplinary sanctions.

· Copies of all complaints filed by INS detainees held in local jails must be immediately forwarded by jail officials to the INS. All responses by jail officials must be in writing and must be sent simultaneously to the detainee, a designated person in the local INS district office, and the proposed detention oversight office in INS headquarters. When jail officials consider a matter satisfactorily resolved (or when the detainee has exhausted all appeals procedures), the INS must contact the detainee to ensure that he or she agrees with and accepts the resolution, and continue to negotiate with jail officials until the detainee and the INS feel that the matter complained of has been satisfactorily resolved.

· Whenever a local facility decides to take disciplinary action against a detainee that will result in disciplinary segregation lasting more than twenty-four-hours, an INS officer must participate in the hearing, approve any sanctions authorized, and participate in a written appeals process. When a pattern of arbitrary or excessive discipline of INS detainees emerges at a jail, the INS must terminate its contract with the facility.

· Local jails must be required to notify the INS and provide all relevant documentation every time a detainee is assaulted or injured, either by jail staff, criminal inmates, or other INS detainees.

· Local facilities should be required to provide the INS with copies of all complaints made against jail employees by the general public, attorneys, or other private or public interest groups.

· Before contracting with a local jail, the INS should be required to investigate any indictments, convictions, or administrative complaints brought against jail employees for misconduct during the previous five years. The INS should request from the Department of Justice's Civil Rights Division a list of all civil rights investigations and cases brought under Title 18 of the U.S. Code, sections 241 and 242, regarding local jails that house INS detainees. The INS should examine the physical facility and interview jail staff and local inmates. If there is credible evidence of jail misconduct, a contract should not be entered into.

To the U.S. Congress:

· The U.S. Congress should pass legislation requiring that all decisions to detain immigrants be automatically and promptly referred for review to a judicial or other competent authority.

· The U.S. Congress should also pass legislation requiring the INS to create federal regulations establishing minimum standards for all immigrants in INS detention. National standards should comply with international standards for administrative detainees. It should mandate time limits on detention and authorize parole for immigrants whose deportation cannot be secured once it is final (as in the case of Cubans and other non-removable immigrants). The legislation should require that asylum seekers be detained only as necessary to determine whether or not a claim for asylum has been asserted, or if they are proven to be a danger to national security. Further, the legislation should demand that asylum seekers are never held in local jails or other prison-like situations.

·Concerned Members of Congress should request that the General Accounting Office initiate a study into the use of local jails by the INS. The study should produce information on the number of detainees held in jails, including the number of asylum seekers; the number and location of all jails used; the per diem rates paid by the INS; the length of detention; transfer policies; language abilities of local jail staff; compliance with INS detention standards and American Correctional Association guidelines; and compliance with international and domestic standards on the treatment of administrative detainees. A study should also examine the cost-effectiveness of the current detention system's reliance on local jails.

To the Civil Rights Division of the Department of Justice:

· The Civil Rights Division's Special Litigation Section should investigate complaints of poor treatment and conditions of confinement of INS detainees in local jails. Given our findings, special attention and investigation should promptly be initiated in several local parish prisons in Louisiana.

To the Working Group on Arbitrary Detention of the U.N. Human Rights Commission:

· The Working Group on Arbitrary Detention should issue written guidelines, in consultation with nongovernmental organizations and detention experts, that delineate the minimum standards owed to administrative immigration detainees. The guidelines should be use to measure and monitor the United States's treatment of immigration detainees.

· The Working Group on Arbitrary Detention should investigate the use of local jails by the INS to assess whether the United States is meeting the standards of treatment owed to administrative immigration detainees. The findings should be presented to the Human Rights Commission by the annual assembly in 2000.

To the United Nations High Commissioner for Refugees (UNHCR):

·The United Nations High Commissioner for Refugees should continue to revise and strengthen its Guidelines on the Detention of Asylum Seekers. For example, exceptions to the general rule that asylum seekers should not be detained should be narrowed and limited to strict necessity on a case-by case basis.

· The UNHCR should be proactive in urging the U.S. government to bring detention policies in line with standards contained in the UNHCR guidelines and international standards on the detention of asylum seekers.

· The UNHCR should monitor, investigate, document, and make public any abuses committed against INS detainees in the United States.

To the Organization of American States (OAS):

·The Human Rights Commission of the Organization of American States should monitor the treatment and conditions of confinement of immigration detainees in the United States, especially asylum seekers and individuals detained indefinitely. The OAS should call on the United States to respond to any findings of inadequate conditions of confinement or instances of physical mistreatment including those identified in this report.

· The Annual Review of the OAS Human Rights Commission should contain a special section on the treatment of INS detainees.

II. INTRODUCTION

I'm from India...they will execute me if I were to be sent back, but nobody cares. Where do I go from here? I'm only twenty-four-years old, haven't committed any crime, never hurt anybody. Why am I still locked up in a place like a dungeon? I know that America is more than just what I've experienced, that there is more to it than jails and cruel punishment.

-Letter to Human Rights Watch from Indian asylum seeker held in Bay County Jail, Panama City, Florida, January 4, 1998

In New York Harbor stands the Statue of Liberty, an emblem of the best and most generous dreams of the United States and a symbol of hope for those seeking freedom, safety, and a better life. For many who arrive on U.S. shores today, the symbolism of the statue contains a cruel irony.

As the United States experiences the largest wave of immigrants since the early years of this century, it is also detaining and deporting people in record numbers.[1] Thousands who arrive in the U.S. to escape repression or build new lives end up behind bars-the majority in local jails scattered around the country-and may remain there for years.

The U.S. government's detention policy is motivated by several factors, such as ensuring deportation, preventing flight within the country or protecting the community, but its underlying message to all seeking admission to the United States, including asylum seekers, is one of deterrence: entering the country without proper permission leads to incarceration. Detention for the purposes of deterring illegal immigration became an integral part of U.S. immigration policy in the early 1980s, when thousands of Cuban and Haitian nationals began arriving in the country. The practice was extended to Central Americans throughout the decade.[2] More recently, in 1993, nearly 300 Chinese asylum seekers were detained by the Immigration and Naturalization Service (INS) when their ship, the Golden Venture, ran aground in the shallow waters of New York Harbor. In that case, the male and female asylum seekers were locked up in local jails in Louisiana, Mississippi, New York, Pennsylvania and Virginia and held for three and half years before they were deported to China or a third country, or paroled into the United States.[3]

By August 1998, the number of individuals detained by the INS reached approximately 15,000, roughly a 70 percent increase from just two years earlier.[4] By the year 2001, the INS estimates that more than 23,000 men, women, and children will be in immigration detention.[5]

Individuals end up in INS detention in several ways. They may be arrested by the INS in a workplace raid, picked up near the U.S. border, detained upon arrival at an airport, or turned over to INS custody after serving a criminal sentence. They include men and women working illegally in the United States as household help, farm laborers, or factory workers; refugees fleeing civil conflict and persecution; or legal permanent residents with U.S. citizen families who lived, worked, and paid taxes in the United States prior to serving criminal sentences.

The INS is scrambling for bed space to hold the growing number of detainees. Immigration detention centers owned and operated by the INS and detention centers run by private corrections companies contracted by the INS cannot accommodate the increase, so the INS has chosen to rely on county and city jails to handle the overflow. Currently, almost 60 percent of all INS detainees are held in local jails around the country.[6]

INS detainees languish in these criminal institutions where they may be held for years, sometimes commingled with accused or convicted criminal inmates, physically mistreated, subjected to excessive or inappropriate discipline, denied adequate medical care, deprived of outdoor exercise, and isolated from family and legal counsel. Individuals fleeing persecution and seeking asylum are not spared jail detention. Because the INS's computer tracking system was created for enforcement purposes, it does not indicate which detainees are asylum seekers. They are simply mixed with other INS detainees and local inmate populations.

The use of local jails to hold INS detainees is supported by high-level INS officials, the Department of Justice and U.S. immigration law. In its Detention Plan for 1997-2001, the Department of Justice states that reliance on local jails is "more cost effective than the construction and operation of Federal facilities."[7] In fact, the INS is directed by statutory law to explore the use of existing facilities before building additional bed space.[8]

The INS may be ignoring problems faced by its detainees held in local jails, but it is not unaware of them. The Department of Justice, in its Detention Plan for 1997-2001, expressed its concern over the use of local jails and stated that "[t]he INS has been most vulnerable in conditions of confinement lawsuits and complaints when local jails are used."[9] Despite this troubling statement, which indicates INS knowledge of poor conditions and treatment of INS detainees in jails, the same detention plan calls for increases in the use of local facilities in the future.

Current Legislation

In 1996, the U.S. Congress passed immigration legislation ensuring that detention would increase dramatically. It has failed, however, to take into account the human costs of new laws or the tremendous burden placed on the INS in implementing the sweeping changes.

The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) created new mandatory detention obligations for certain categories of immigrants and greatly expanded the number of crimes for which non-citizens can lose their legal status and be deported. Prior to the 1996 legislation, crimes resulting in deportation were limited to murder, rape, and other serious felonies. With IIRIRA, minor drug offenses, some cases of drunk driving, shoplifting, and any conviction carrying a sentence of one year or longer, whether or not the sentence was suspended or actually served, require deportation.[10]

The new laws so drastically increased the demand for detention space that in 1996 the INS petitioned Congress to authorize temporary rules allowing postponement of some of the mandatory detention provisions.[11] INS Commissioner Doris Meissner warned in 1997 that "at some point in the near future, we expect that there will be insufficient detention space to meet the requirements of both mandatory detention and our other enforcement initiatives."[12] The temporary detention rules, which allow the release of certain classes of individual with prior criminal convictions, were extended in 1997, and again in 1998, but cannot legally be extended again, leaving the INS to devise a plan to address the detention space shortage in the very near future.

IIRIRA also created a new deportation process, called "expedited removal," the intent of which is to process and deport individuals who enter the United States without valid documents as quickly as possible. The accelerated process imperils bona fide refugees, who often enter illegally or with fraudulent documents, since critical decisions about deportation are delegated to low-level INS officials and access to counsel and judicial review is limited.[13]

Even when asylum seekers prevail in the initial summary procedures and successfully prove in a subsequent interview that they have a "credible fear" of persecution in their home country, they are still subject to detention at the discretion of the INS.[14] Immigrants' advocates report that discretion at the local INS district level has resulted in inconsistent and arbitrary decisions about who is released from detention, and claim that decisions are often more influenced by where a person was originally detained than by the strength of his or her asylum claim.[15] For example, an Iraqi woman seeking asylum has been detained for almost a year in two Michigan county jails under the new expedited removal laws. The INS District Director for Detroit, who makes decisions about who is paroled in her district, explained the decision to detain the woman by saying, "Here, if we have the space, we'll hold you to complete the entire process."[16]

The INS provides few public statistics regarding detention during the credible-fear process and has repeatedly refused requests by academic researchers and non-governmental organizations to monitor the process. A recent studyon expedited removal found that even once individuals are recognized as asylum seekers in the INS system, detention at ports of entry lasted for an average of seventy-four days in Los Angeles, California, ninety-two days in New York, and seventy-one days in Brownsville, Texas.[17]

INS Detention System

The INS uses four types of facilities to hold detainees: INS owned-and-operated Service Processing Centers (SPCs);[18] contracted centers run by private corrections companies;[19] Bureau of Prisons facilities; and local jails scattered around the country.

As of February 1998, the INS held valid contracts with 1,041 local jails.[20] Because decisions about which detention facilities are used are made within each of the thirty-three INS districts, the INS headquarters in Washington D.C. does not know how many or which jails are being used on any particular day. In fact, INS headquarters may not even have a complete list of jails the agency uses. When Human Rights Watch made a Freedom of Information Act (FOIA) request for a complete list of all facilities used by the INS to hold its detainees, we were sent a stack of lists obviously obtained from various INS sources and district offices. After hours of sifting through the lists to discern where duplicate facilities were listed, Human Rights Watch counted 687 local jails in forty-three states, leaving roughly 400 jails unaccounted for. Some of the jails holding detainees with whom Human Rights Watch communicated were not included in the FOIA response, despite the fact that some detainees had been in those same local jails since 1996.[21]

In the INS/jail arrangement, administrative immigration detainees are handed over to the care of local jails, which are paid daily fees by the INS that vary between $35 to $100 per detainee.[22] The influx of federal money has been a boon to local economies. In York County, Pennsylvania, revenue from the INS increased from $600,000 in 1992 to an expected $6 million in 1998 - $2 million of which is profit.[23] The windfall profit already reaped by the contract with the INS allowed the county to cut its personal property taxes in 1996.[24] In Manatee County, Florida, the INS paid one million dollars for the renovation of part of the Manatee County Jail, which included paying off alarge pre-existing debt owed by the county.[25] According to jail officials, the INS guaranteed a total of 250 detainees per day and was obligated to pay the jails whether or not that number was met.[26]

INS detainees have become a desirable source of profit for local jails. Officials at Euless City Jail in Texas told Human Rights Watch that they had lowered their per diem rate from $68 to $55 in order to have a more "consistent" INS population and "to be more competitive."[27] (Nearby Denton County Jail had recently signed a contract with the INS charging only $35 per detainee.) The Corrections Corporation of America (CCA), which has long recognized the profit to be made in privatized detention, has also entered the INS detention/local jail arena.[28] The Chief of Security for CCA, which runs the Liberty County Jail in Texas, even asked Human Rights Watch researchers if they knew of ways to get more INS detainees.[29]

Lack of Uniform Standards

The only laws or regulations regarding detention conditions for INS detainees are four minimal requirements contained in federal regulations: twenty-four-hour supervision; compliance with safety and emergency codes; food service; and emergency medical care.[30] There are no other laws or regulations binding on the INS regarding any other minimum standards that must be met in facilities holding INS detainees.

The INS has begun to recognize the importance of establishing minimum standards in its own detention centers and contracted facilities, but it has failed to extend the same standards to local jails, instead relying on whatever particular state or local standards are binding on jails. As this report illustrates, the result is inconsistent and inadequate treatment for detainees unlucky enough to be held in one of the hundreds of local jails used by the INS throughout the United States.

In January 1998, the INS issued twelve detention standards applicable only to INS Service Processing Centers and privately contracted for-profit facilities.[31] The oversight of implementation and enforcement of the standards is called into question because the new standards do not have the force of regulations, but are merely internal INS policy. The first responsibility for implementation and enforcement falls on the officers-in-charge of each facility, and any unresolved issues are to be raised first to the INS district director and then the INS regional director. An INS headquarters facilitator was appointed by the INS commissioner to monitor the overall program, ensure training onthe standards, and serve as the final arbiter when issues cannot be resolved locally. Nevertheless, the detention standards remain legally unenforceable, and thus the ultimate power lies with the dozens of officers-in-charge to apply the standards as they see fit in their own facilities.

The INS claims it requires its own facilities to meet American Correctional Association guidelines.[32] Six of the nine INS-run SPCs or contracted facilities have received accreditation under the ACA; the others reportedly are in the process of applying.[33] The INS requires its privately contracted facilities to develop and apply standards consistent with the ACA and to obtain ACA accreditation within eighteen months.[34] Not all ACA guidelines must be met, however, and the INS allows facilities to receive waivers for non-mandatory criteria if "overall agency programming compensates for lack of compliance."[35]

The fact that the INS considers the ACA guidelines as standards to be aspired to in their detention facilities speaks to the attitude of the agency toward the asylum seekers and other immigrants it detains. The ACA guidelines were created to govern the conditions and treatment in facilities designed to hold accused and convicted criminals. Nowhere do the guidelines mention administrative detainees or attempt to distinguish the special needs of, or treatment owed to, such a population. For example, the needs of immigration detainees, such as language requirements or specialized legal materials, are absent from the ACA guidelines. Even if an institution is fully ACA accredited, INS detainees' needs are not necessarily met. The ACA requirement, for example, that facilities be "geographically accessible to...inmates' lawyers, families and friends" seems only accidentally satisfied, if ever, for INS detainees who are routinely transferred from jail to jail and state to state with no apparent regard for location of family or legal counsel.

Contracting with Local Facilities

The INS claims that the local jails with which it contracts should meet ACA guidelines, but its minimum standards only. "It's not in the INS's interest to force the jails to meet certain standards because we need the space," the senior counsel for INS Field Operations told Human Rights Watch. "[C]ontractually, you cannot force the jails to do certain things. It's a dilemma."[36]

According to the INS, the agency prioritizes using jails that already have existing contracts with other Department of Justice agencies, such as the U.S. Marshals Service (USMS). When the INS decides to use a jail with a USMS contract, it simply adds a "rider" to the document. Such a rider is insufficient since USMS contracts were negotiated with federal criminal prisoners in mind, not immigration detainees, and definitely not asylum seekers. Even when contracts are negotiated directly with the INS, they usually only require services for INS detainees thatare "consistent with the types and levels of services routinely afforded its own [jail] population" with no distinction made between INS detainees and local inmates.[37]

Human Rights Watch submitted a Freedom of Information Act (FOIA) request in September 1996 to obtain copies of all guidelines and standards used by the INS in all non-INS detention facilities, including jails. In response, we received copies of sixty-three different ACA standards covering topics such as evacuation plans, special diets, and control of vermin. The INS also responded by providing their internal form called the G-324(a) - the Service Contract Facility Inspection Report - which contains thirty-eight different detention standards based on ACA guidelines. According to the INS, a jail need not meet all thirty-eight standards in order to enter into a contract or pass annual inspections carried out in some INS districts.[38] Significantly, the enumerated standards do not require that any INS detainee be held separately from the general inmate population. If jails do not meet all of the standards, they are given a written explanation about problem areas and asked what plans they have to make changes.

Our 1996 FOIA request also included a request for copies of all inter-governmental service agreements (IGSAs) signed between local jails and the INS. Copies of the IGSAs were never sent to Human Rights Watch. Human Rights Watch was able to obtain copies of several contracts directly from jail administrators or county sheriffs. No INS/jail contract we reviewed made any specific reference to ACA standards or the INS's inspection form G 324(a).[39] No warden Human Rights Watch interviewed was even aware that the INS's form, the G324(a), even existed. The fact that compliance with the INS's enumerated standards is not required by law, combined with the INS's desperate need for jail space, results in the agency's using facilities that fail to meet even basic health or safety requirements. As increasing numbers of detainees overwhelm INS detention capacity, jails that are not appropriate places to house detainees will continue to be used. The jails used by the INS may not even be secure or safe places. For example, in June 1998, six Cuban detainees escaped from East Feliciana Parish Prison in Louisiana - the fifth time INS detainees had escaped from the jail since 1988. Despite this substandard detention history, the INS was paying the jail more than twice what the state pays per day to house a local inmate.[40]

Given the financial benefits to be gained by local counties and jails in contracts with the INS, the agency's explanation that it is at the mercy of the local facilities is suspect. If local jails were asked to meet specific requirements or lose their lucrative contracts with the INS, local officials would have to consider the demands very carefully. As it stands now, the INS is allowing local officials to treat detained immigrants however they see fit.

Monitoring Local Jails

There are no laws or regulations governing how the INS should monitor detention conditions or treatment of INS detainees held in local jails. There is no national INS policy regarding monitoring local jails, nor are monitoring provisions routinely incorporated into INS/jail contracts. Some INS districts, such as New Orleans, claim to monitor and inspect jails on a regular basis, but whether or not inspection of local jails takes place is a local district decision, carried out without guidance from INS headquarters.[41] Under the current system, the INS is essentially contracting away its responsibility for the treatment of its detainees to the discretion of local jail officials.

State jail standards and monitoring requirements vary and may even be non-existent. Neither the rigor nor results of state-mandated inspections are consistently monitored by the INS, and the agency has been silent in the face of wide variance in the frequency and quality of inspection systems used by the jails. In Florida, for example, where over thirty jails are used by the INS, a 1996 repeal of the pertinent section of the administrative code eliminated mandatory inspections by the Florida Department of Corrections (DOC) that formerly insured compliance with Florida's model jail standards. Now Florida jails have the option to contract with the DOC to inspect the jail, make reciprocal inspection arrangements among jails to inspect each other's facilities, or conduct their own inspections. The sheriff of Hillsborough County Jail in Tampa, Florida told Human Rights Watch that his jail had decided to carry out its own in-house self-inspection by hiring a retired DOC inspector.[42] Manatee County Jail, which houses roughly 300 INS detainees, arranged to conduct reciprocal inspections with five other counties.[43]

At most local jails used by the INS, the agency has only sporadic, unpredictable contact with their detainees. INS detainees report that their written requests to the INS for information about their cases or requests for transfers or special assistance often go unanswered. Detainees often do not know what is happening in their immigration cases, why they are being transferred, or when, if ever, they can expect to be released from detention.

Some jails do have frequent, even daily, contact with INS officers, but interactions are usually limited to an exchange of paperwork during transport of detainees and rarely offer any opportunity for detainees to speak directly with its representatives. The warden at Hillsborough County Jail in Florida told Human Rights Watch that he had not talked to anyone at the INS for three years.[44] At a few local jails, like Berks County Prison in Pennsylvania, the INS maintains an on-site representative to deal with the needs of the detainee population. In other jails, such as DuPage County Jail in Illinois, the jail designates someone from its own staff to serve as a liaison with the INS.

Tension in the System

Not surprisingly, the tension created by such an inconsistent detention policy lacking effective monitoring mechanisms, has made the facilities ripe for outbursts by INS detainees frustrated and angered by long periods of incarceration, inadequate conditions of confinement and frequent mistreatment.

In 1995, those frustrations exploded in violence at a contracted immigration center holding mostly asylum seekers in Elizabeth, New Jersey, managed by Esmor Correctional Services, Inc., a private, for-profit company. On the night of June 18, a group of INS detainees took over the facility; Esmor correctional officers fled the buildingsor hid as property was destroyed.[45] To end the melee, a police SWAT team surrounded the facility, used tear gas, and rounded up and handcuffed detainees.[46]

Later that night, about two dozen detainees were brought to Union County Jail, also in Elizabeth, New Jersey. For three days, detainees from Albania, India, Ghana, and elsewhere were beaten, held naked, made to crawl on their hands and knees through a gauntlet of jail officers, and forced to chant "America is Number One."[47] One Indian detainee claimed that between beatings, correctional officers used pliers to pinch the skin on his genitals and squeeze his tongue.[48]

On March 6, 1998, after a nine-week trial in which fourteen INS detainees testified, three correctional of

officers from the Union County Jail were found guilty on counts of assault, misconduct, or conspiracy.[49] After these convictions, six other correctional officers pleaded guilty to official misconduct.[50]

An INS review and investigation of the Esmor facility ordered by INS Commissioner Doris Meissner was already underway when the June 18 incident took place. A seventy-two- page report released by the INS in July 1995 concluded that "detainees were subjected to harassment, verbal abuse, and other degrading actions perpetrated by some Esmor guards."[51] The report further stated that this type of abusive treatment "was part of a systematic methodology designed...to control the general detainee population and to intimidate and discipline obstreperous detainees through use of corporal punishment."[52]

The Elizabeth, New Jersey facility was reopened by the INS in 1997, this time under contract with the for-profit company, Corrections Corporation of America. Having been forced by the 1995 incident to face the problems that arise when facilities are not properly inspected or sufficiently monitored, the INS has instituted monitoringmechanisms and designated several INS staff members to deal with detainee complaints, which have again arisen under the new contractor.[53]

Unfortunately, the lessons learned by the INS in the Esmor case, such as the importance of carefully choosing detention facilities, creating comprehensive contracts and establishing rigorous monitoring procedures, have not been extended to local jails holding INS detainees. Since no national formal monitoring procedures have been established by the INS, the nearly 8,000 INS detainees held at local jails are at the mercy of the local jailers. Those placed in a safe and humane facility are the lucky ones.

Serious instances of mistreatment of INS detainees held in local jails continue to be exposed. In July 1998, INS detainees held in Jackson County Correctional Center in Florida alleged that jail officials shocked them with electrified batons and shields; one INS detainee claimed he was shackled to a concrete slab, shocked with an electric riot shield, and left for seventeen hours. Responding to the Jackson County incident, the INS assistant deputy director for detention and deportation for the INS Miami district aptly described the fundamental problems of the INS/jail arrangement: "We cannot dictate to the county or the state of Florida what standards they should have in their facilities. They're another government agency. We have to rely on their integrity."[54]

Protests and complaints by detainees in other parts of the country also continue. In February 1998, INS detainees held at a New Hampshire jail went on a hunger strike to protest overcrowding at the jail and the alleged beating of a Vietnamese detainee.[55] And INS detainees at Avoyelles Parish Prison in Louisiana went on a hunger strike when air conditioners broke down during a blistering Louisiana August last year.[56]

Alternatives to Detention

Detention is a costly immigration policy, in both human and financial terms. Alternatives to detention are not only more humane, they also allow the INS to make better financial choices regarding limited detention resources. For example, an asylum seeker detained by the INS for six months at a local jail charging $50 per day costs the INS $9,000; some jails end up costing the INS more than $20,000 per detainee per year. Despite the overwhelming need for detention space, the INS has been slow to develop release alternatives or to fully utilize alternatives to detention that already exist.

In 1990, the INS initiated a pilot parole program when advocates argued that the INS was unnecessarily detaining asylum seekers.[57] The program allowed local INS district directors to grant parole to asylum seekers, taking into consideration such criteria as the basis for the asylum claim, whether fear of persecution was credible, threat to public safety, and contacts in the United States. Asylum seekers paroled under the program needed to be represented by legal counsel and were to report periodically to the INS and appear at all immigration hearings.

The INS's pilot parole program, now called the Asylum Pre-Screening Officer program (APSO), became permanent in 1992, but its implementation during the last several years has been sporadic and has suffered from insufficient funding and a lack of consistent and serious utilization by the district directors. When changes in the 1996 immigration law created the expedited removal process, the INS stated that it intended to consider parole for asylum seekers who successfully passed the credible fear interview.[58] But information generated in January 1998 by the INS's Asylum Office, which implements the parole program, indicated that the number of parole interviews for asylum seekers was relatively low and varied significantly among the local INS districts, some of which routinely denied parole to asylum seekers who met eligibility criteria.[59]

The INS is also exploring supervised release programs for other immigrants in detention. In 1996, the INS contracted with the Vera Institute of Justice to undertake a three-year demonstration program of supervised release of immigrants (not only asylum seekers) in removal proceedings in the New York City and Newark, New Jersey INS districts. In February 1997, the Appearance Assistance Project (AAP) of the Vera Institute began to screen immigrants after they were apprehended by the INS and to undertake their supervision until they are allowed to remain in the United States or are deported. Individuals recommended for supervision must meet criteria relating to their community ties (verified address and a sponsor), their record of compliance in previous proceedings, and their threat to public safety.[60] To remain in the program, immigrants must keep the AAP informed of their whereabouts, appear in court, and comply with final immigration court decisions. The project helps remove barriers to compliance by assisting participants to obtain free or low-cost legal representation and other social or educational services when needed.

The Appearance Assistance Project is an important step toward making the INS's detention policy more rational and humane by calling into question the automatic detention of immigrants. The initial results indicate that the project is an effective alternative to detention; more than 80 percent of the AAP's participants are complying with all court appearances.[61] The experience of the AAP illustrates that with the right combination of oversight, information, and community and legal support, immigrants will choose to comply with INS requirements, making detention unnecessary.

III. LEGAL STANDARDS

Immigration detention is civil in nature, and should not be used as punishment. Deprivation of liberty is a serious matter, yet international and domestic legal standards have not adequately addressed the particular situation of asylum seekers and other immigrants in administrative detention. The United Nations Standard Minimum Rules for the Treatment of Prisoners and the Body of Principles for the Protection of all Persons under Any Form of Imprisonment elaborate non-binding but authoritative minimum standards for treatment of all individuals in detention. The minimum standards contained in these documents require, among other things: that administrative detainees be held separately from criminal detainees; that detainees are advised of all relevant rights, such as the right to receive information in languages they understand; that detainees are allowed adequate opportunities to communicate withand receive visits by legal counsel and family members; and that detainees are given a daily opportunity to see a medical doctor when ill. In the case of immigration detainees, the United States has largely ignored these basic international standards.

International Standards

All persons in the United States possess basic human rights protections, regardless of their immigration status. Individuals in INS detention, whether asylum seekers, undocumented workers, or people who have served criminal sentences, have the right to be free from arbitrary detention and to be protected from cruel, inhuman or degrading treatment.[62]

International norms regarding the treatment of pre-trial detainees offer the best guidance on conditions for individuals in immigration detention. Like immigration detainees, pre-trial detainees are held to ensure their presence at trial, rather than for the purposes of punishment. Pre-trial detainees are presumed to be innocent, unless and until they are actually convicted of a crime.

International standards for pre-trial prisoners are embodied in several international documents, and they reflect, first, a basic concern that all detained individuals be held in decent and humane conditions, and, second, a concern that pre-trial detainees should not be treated punitively, since they must be considered innocent until proven otherwise. They should be held in the least restrictive setting possible and given the maximum freedom consistent with their remaining in detention.

The U.N. Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules) further clarify what constitutes "humane" conditions of detention. The Standard Minimum Rules are not legally binding on states but provide authoritative guidance in interpreting the principles laid out in documents such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The Standard Minimum Rules apply to all persons in detention, for whatever reason. Among other things, the rules note:

· different categories of prisoners shall be kept in separate institutions (or parts of institutions), taking account of their sex, age, criminal record, the legal reason for their detention and the necessities of their treatment;

· women should be held separately from men;

· handcuffs, chains, irons and straitjackets should never be used as punishment;

· prisoners should be allowed at least one hour of outdoor exercise daily;

· people detained for civil or administrative reasons should be kept separately from people imprisoned for a criminal offense.[63]

In 1988, the U.N. General Assembly adopted the Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment (Body of Principles). The relevant principles are too numerous to describe fully here, but most importantly, they state that detained individuals have the following basic rights:

· the right "not to be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority," the right "at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of their detention," and the right to do so through proceedings that are "simple and expeditious and at no cost for detained persons without adequate means;"

· the right to have the assistance of legal counsel, to receive reasonable help in obtaining counsel, and to have adequate time and facilities to communicate with legal counsel;

· the right to be given an explanation of all relevant rights, and the right to receive such information in a language the detainee understands and to have the assistance, free of charge if necessary, of an interpreter;

· the right to promptly notify family members of the place of detention, receive visits from family members and have an "adequate opportunity to communicate with the outside world;"

· the right to be informed of disciplinary rules prevailing in a given detention center, and to appeal any disciplinary action, and the right to make a request or complaint regarding treatment or detention conditions;

· the right to "treatment appropriate to their unconvicted status," for those who are awaiting trial or detained for non-criminal reasons.[64]

It is a also fundamental principle of human rights that no one should be arbitrarily placed in detention. The Universal Declaration of Human Rights states that "no one shall be subjected to arbitrary arrest, detention or exile," and the International Covenant on Civil and Political Rights declares similarly that "no one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law."[65] Detention is considered "arbitrary" if it is not authorized by law or in accordance with law. It is also arbitrary when it is random, capricious, or not accompanied by fair procedures for legal review.

The International Covenant on Civil and Political Rights provides that "anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."[66] This means that even if a person has been detained in accordance with a valid law, he or she is nonetheless entitled to a prompt and expeditious appeal procedure.

Arbitrary detention has also been defined as not only contrary to law but as including elements of inappropriateness, injustice and lack of predictability.[67] Some immigration detainees cannot be deported because they are stateless,[68] or because their own country or any third country will not accept them. Human Rights Watch believesthat when immigration detainees are held indefinitely and do not know when, if ever, they will be released, their detention becomes arbitrary even if the initial detention was carried out in accordance with the law.

The Special Situation of Asylum Seekers

International human rights standards recognize that some immigrants are in especially vulnerable circumstances and therefore should not be detained at all. In particular, international standards state clearly that those seeking asylum should generally not be detained.

The 1951 United Nations Convention Relating to the Status of Refugees (Refugee Convention) and the 1967 Protocol Relating to the Status of Refugees defines a "refugee" as a person who has fled his or her home country because of "a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion."[69] The Refugee Convention goes on to state that even if refugees are in a given country unlawfully, "[c]ontracting states shall not apply to the movements of such refugees restrictions other than those which are necessary."[70] The United Nations High Commissioner for Refugees' Guidelines on the Detention of Asylum Seekers (UNHCR Guidelines) clarifies this provision with regard to those who are seeking asylum by reaffirming the basic human right to seek and enjoy asylum and by stating as an explicit guideline that "[a]s a general rule, asylum seekers should not be detained."[71]

This general rule - that those seeking asylum should not be detained - arises out of the fundamental obligations all governments have to asylum seekers under international law. The most basic obligation of governments is to avoid forcing asylum seekers to return to their home country, if return would expose them to continued persecution. In international law, this is known as the principle of non-refoulement, which, translated from French, literally means "non-driving back." In practice, the principle of non-refoulement means that governments are obligated to develop fair procedures to determine whether a given immigrant is in need of protection and deserves asylum. They must permit asylum seekers to remain in the country to which they have fled, at least until such time as it is safe to return to their home country. The Universal Declaration of Human Rights articulates this principle clearly, stating that "everyone has the right to seek and enjoy in other countries asylum from persecution."[72]

The Refugee Convention also states explicitly that governments "shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened...enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence."[73]

This notion is expanded and clarified in the UNHCR Guidelines, which note that detention should not be used as a punitive or disciplinary measure, and that detention should not be used as a means of discouraging refugees from applying for asylum. Indeed, even if detention is not explicitly used to discourage asylum applicants but merely to discourage future immigration altogether, such a use of detention may violate the Refugee Convention. As international refugee law scholar Arthur Helton argues:

Detention for purposes of deterrence is a form of punishment, in that it deprives a person of their liberty for no other reasons than their having been forced into exile. It is a practice that is legally questionable under Articles 31 and 33 of the United Nations Convention and protocols Relating to the Status of Refugees, which prohibit the imposition of penalties and restrictions on movement as well as refoulement.[74]

Many refugees have faced torture, imprisonment, and death threats at home, and many have had family members murdered by abusive governments or rebel forces. The very notion of asylum rests on the idea that people should not suffer as a result of their membership in particular political, religious, racial, ethnic or national groups. After fleeing abusive governments at home, asylum seekers should not succeed in reaching what appears to be a safe haven, only to find that they are promptly detained in prison-like conditions - that often evoke the very conditions they fled - for extended periods.

Limited Circumstances in which Refugees May Be Detained

Although it is an accepted premise of international law that asylum seekers should not, in general, be detained, the Refugee Convention does permit states to detain asylum seekers in certain limited circumstances. Thus, "[i]n time of war or other grave and exceptional circumstances," states may take "provision[al] measures" to detain asylum seekers, "pending the determination that the person is in fact a refugee and that the continuance of such measures is necessary in the interests of national security."[75]

The UNHCR Guidelines on the Detention of Asylum Seekers further elaborate the instances in which asylum seekers may be detained:

(i) to verify identity;

(ii) to determine the elements on which the claim for refugee status or asylum is based;

(iii) in cases where refugees or asylum seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum; or

(iv) to protect national security or public order.[76]

According to the Guidelines, any other reason for detaining asylum seekers, such as part of a policy to deter future asylum seekers, is contrary to principles of international law. The guidelines emphasize that "detention [should] only be imposed where it is necessary and reasonable to do so and without discrimination. It should be proportional to the ends to be achieved and for a minimal period."[77]

The Guidelines also highlight the procedural rights of asylum seekers: the right to be informed of the reasons for their detention in a language and in terms they are able to understand; and the right to be heard promptly before an independent and impartial authority to challenge the lawfulness of their detention.[78]

At the time this report was written, the UNHCR Guidelines were in the process of being revised and strengthened. The revisions are a positive step by UNHCR and many of the proposed changes serve to better protect the rights of asylum seekers. For example, the revisions state that procedural safeguards should include free legal assistance to asylum seekers where possible and that regular periodic reviews of the need for continued detention should be undertaken whenever a decision to detain an asylum seeker is made. The revisions also create an additional section to the guidelines that underscores the importance of creating and utilizing alternatives to detention. The proposed section suggests different models of conditional release, such as monitoring requirements, open centers, and release on bail.

Human Rights Watch is concerned, however, that even the revised exceptions for allowing detention may still be too vague and poorly defined, and can thus be interpreted by states as justifying detention of many individuals seeking asylum. All decisions to detain asylum seekers must be allowed only as exceptional measures and only after alternatives to detention have been explored. Decisions to detain asylum seekers are valid only when a case-by-case review by an impartial adjudicator shows detention to be strictly necessary to determine whether the individual is asserting the basic elements of a claim for asylum.

Human Rights Watch also believes that the revised guidelines should explicitly state that jails and prisons, by definition, are not suitable places to detain individuals who are neither convicted nor accused of a criminal offense. Furthermore, all aspects of detention should be incorporated into a country's domestic law and should conform to international human rights standards.

Additional Rights of Asylum Seekers in Detention

All people in INS detention have the right to be detained non-arbitrarily and in conditions that are humane. If detained, asylum seekers have an additional degree of protection regarding conditions of detention under international law. If they are detained, the UNHCR Guidelines state that:

· detentiononditions must not be punitive;

· detained asylum seekers should be able to regularly contact and receive visits from friends, relatives and attorneys;

· detainees should have access to medical treatment, and psychological counseling where appropriate, be able to engage in physical exercise and have access to educational activities;

· men and women, and children and adults, should be segregated from each other (but not from their relatives);

· certain vulnerable categories of refugees, such as pregnant women, nursing mothers, children, the aged, the sick, and handicapped should benefit from special measures which take into account their particular needs;[79]

· detainees should be allowed to exercise their religion and receive a diet in keeping with their religion

The Executive Committee of UNHCR, which advises the High Commissioner for Refugees on acceptable practices regarding refugees, has also issued recommendations regarding the detention of refugees and asylum seekers. The recommendations explicitly state that detention must be humane and that whenever possible, asylum seekers should "not be accommodated with persons detained as common criminals, and shall not be located in areas where their physical safety is endangered."[80]

The preceding review of international standards - which apply to all people in custody, including detained immigrants and asylum seekers - illustrates that although there is a body of customary international law establishing minimum treatment of all individuals found in the United States, additional standards must be developed that delineate the particular rights of administrative detainees, especially those in immigration detention. While governments may legally detain immigrants and, in limited circumstances, asylum seekers, they must not do so arbitrarily, and the conditions of detention must comply with minimum standards for the treatment of prisoners. Currently, under international law, an administrative immigration detainee has far fewer legal protections than a convicted criminal who has committed a serious crime.

United States Law and Policy

Due Process Rights of Immigrants

Depriving a person of his or her liberty is a serious matter, as the international standards discussed in the preceding section make clear. Immigrants detained by the INS are protected both by those international laws and standards and by the laws of the United States. Over the decades, the United States has developed elaborate systems of rules and standards designed to ensure that the deprivation of liberty will never be arbitrary and that if individuals are deprived of their liberty after just legal proceedings, the conditions in which they are held must be humane.

The Fifth and Fourteenth Amendments to the U.S. Constitution state that no person may be deprived of "life, liberty, or property, without due process of law." The U.S. Supreme Court has long recognized that the Constitution's most fundamental guarantees apply both to citizens and non-citizens, including those non-citizens who have illegally entered the United States. In Shaugnessy v. United States, for example, the Supreme Court insisted that aliens are entitled to due process before being deported: "Aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law."[81] Similarly, in Plyler v. Doe, the Supreme Court reaffirmed its commitment to protecting the rights of aliens: "Whatever his status under the immigration laws, an alien is surely a `person' in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as `persons' guaranteed due process of law by the Fifth and Fourteenth Amendments."[82]

INS detention and removal policies fall within the ambit of the Constitution's due process guarantees. Most obviously, when it detains a person, the INS takes away his or her liberty. In the case of asylum seekers, deportation or removal from the United States and return to their country of origin - refoulement - may actually constitute a deprivation of life, since those forced to return may literally face death at the hands of their abusive home governments. Thus, one federal appellate court has declared that although "deportation is not a criminal action...the consequences may more seriously affect the deportee than a jail sentence. The liberty of the individual is at stake and "meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standard of fairness."[83]

Individuals in immigration proceedings have a right to legal counsel, but not at government expense.[84] In general, constitutional due process guarantees protect against interference with the right to counsel in immigration proceedings, and require that detainees be given a reasonable opportunity to secure legal representation. But unlike criminal detainees, the U.S. government is not obligated to provide free legal assistance to the immigrants and asylum seekers it detains and deports.[85] Despite the fundamental interests at stake in INS detention and removal of immigrants, courts have not consistently found that all immigrants have due process rights co-extensive with those of U.S. citizens and permanent residents. Indeed, U.S. courts have held that some categories of immigrants have few due process rights at all.[86]

People in INS detention in the United States are being detained for administrative reasons, not as punishment for criminal behavior. They are detained: because they lack valid documents for entering or remaining in the United States; to protect public safety; to ensure their presence at ongoing immigration proceedings; or to prevent them from remaining in the United States after they have been ordered to return to their home countries.

Immigrants face trial in the United States, like any U.S. citizen, if they are accused of violating state or federal criminal laws. If convicted, they may be punished and made to serve a criminal sentence. After the criminal time is served, INS detainees are then usually transferred to INS custody. These individuals - labeled "criminal aliens" by the INS - risk losing their legal resident status in the United States based on convictions for certain crimes.

Recent changes in U.S. immigration laws increased the number of offenses that serve as grounds for detaining and deporting immigrants. According to the law, immigrants (including those legally in the United States) who have been convicted and sentenced for what the INS calls an "aggravated felony" must be detained and deported. But the law casts an absurdly wide net: any violation of the criminal law that carries a sentence of a single year or more is considered an "aggravated felony" under the immigration law, even if the violation of the law was for something as minor as petty shoplifting, and even if the sentence was suspended by a judge.[87]

Thus, a generally law-abiding person who has lived in the United States for years might find himself or herself detained and deported away from work and family for something as minor as having received a suspended sentence for possessing a small amount of marijuana or for shoplifting. The new immigration law is retroactive in its application. An immigrant who had a minor brush with the law many years ago, and who has an entirely clean criminal record ever since, may now be detained and deported. Detention pending deportation may be, and frequently is, for a time period far longer than that of the original criminal sentence.

Recent Changes to U.S. Immigration Laws

In 1996, on a wave of public anti-immigrant sentiment, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). In April 1997, IIRIRA went into effect, eliminating many of the statutory rights that immigrants had enjoyed for decades. The impact of many of the statutory changes is not yet completely clear, since they are being implemented by the INS in a somewhat piecemeal fashion while legal challenges to some of the law's provisions were underway at the time the research for this report was conducted.[88]

Under IIRIRA, all immigrants who have been "admitted" into the United States at any point have a right to go through a "removal hearing" before being removed from the country, while those who were never properly admitted, regardless of their physical presence in the United States, are entitled to no hearing at all but may be instantly sent back to their home countries under a procedure that IIRIRA calls "expedited removal."[89] Immigrants going through full removal hearings are given some due process rights under the law (for instance, they have the right to be represented by an attorney, although at no expense to the government). But immigrants in "expedited removal" have virtually no due process rights at all.

According to the INS, "expedited removals" are occurring at astonishing rates. In the six months between August 1, 1997 and January 31, 1998, the INS found that some 60,000 of the people who attempted to come in to the United States at ports of entry were subject to expedited removal. Of those 60,000, approximately half (29,000) voluntarily withdrew their applications for admission to the United States. The remaining 31,000 were placed in expedited removal proceedings; by the end of the six-month period, all but 2,000 of those placed in expedited removal had actually been removed.[90]

Expedited Removal and Asylum Seekers

IIRIRA does provide an exception to the expedited removal process for individuals fleeing persecution. In order to avoid expedited removal, an immigrant must come forward at a port of entry and indicate "either an intention to apply for asylum or a fear of persecution."[91] He or she is then referred to an asylum officer who will decide if the fear of persecution upon their return to the country of origin is "credible."[92]

According to IIRIRA, "[a]n alien who is eligible for [an asylum] interview may consult with a person or persons of the alien's choosing prior to the interview, or any review thereof... Such consultation shall be at no expense to the government" but legal advisors are not entitled to speak during the interview.[93] If the asylum officer does not find that a credible fear exists, an asylum seeker can be ordered removed, but is entitled to a written explanation and to review of the decision by an immigration judge within seven days.

The law also mandates that all those seeking asylum in the United States shall be detained, "pending a final resolution of credible fear of persecution, and, if found not to have such a fear, until removed."[94] This can mean months of detention in one of the immigration centers or local jails around the country used by the INS.

The provisions of IIRIRA relating to potential asylum seekers directly flout international standards relating to asylum seekers. Most obviously, international standards establish that asylum seekers should not be detained, except in grave and exceptional circumstances. International standards also provide that if detained, asylum seekers must have the right to challenge the legality of their detention promptly before an independent and impartial authority, but IIRIRA permits no such opportunity.

IIRIRA also places the burden on asylum seekers to come forward at the point of first contact with the INS to express a credible fear of persecution. Many asylum seekers are unable to do this: their lack of knowledge of asylum procedures and requirements, their lack of English language skills, and, often, their extreme disorientation and trauma render them uniquely ill-suited to immediately and persuasively establish that they have a fear of persecution. With little understanding of the situation in which they find themselves, many asylum seekers who would be capable of establishing asylum claims in a fair and thorough procedure, with the assistance of counsel, may have little or no chance to accurately express their fear of return in a three-minute interview with a busy immigration officer. Yet that interview, according to the INS, constitutes an immigrant's "only opportunity to present information concerning fears or concerns about being removed from the United States."[95]

Another fundamental problem with IIRIRA is that it places enormous power in the hands of immigration officials and asylum officers, who may be inadequately trained or who may have only a few minutes to spend with each entering immigrant. As the INS has noted, "In [fiscal year] 97, the Service conducted more than 475 million primary inspections. During the primary inspection stage, the immigration officer literally has only a few seconds to examine documents, run basic lookout queries, and ask pertinent questions, to determine admissibility and issue relevant entry documents."[96]

IIRIRA's procedures for identifying asylum seekers are grossly inadequate and lack the most basic guarantees of fairness and thoroughness. These procedures ignore the U.S. obligation, under international law, to create fair procedures to identify asylum seekers and to ensure that no one is returned to a country in which he or she will face persecution. IIRIRA creates a grave danger, amounting to a virtual certainty, that some asylum seekers will be wrongly detained and wrongly returned to their home countries in violation of the principle of non-refoulement.[97]

Detention Conditions

Like international law, most U.S. law governing detention conditions relates to the detention of prisoners who are either awaiting criminal trial or who have been convicted of a crime. This means that INS detainees are in a somewhat anomalous position, for there are few other situations in which people are detained by the U.S. government for purely administrative reasons. As discussed briefly above, immigrants are detained by the INS to ensure presence at asylum or removal proceedings, to ensure compliance with orders to return to their home countries, and to protect society if particular immigrants are deemed dangerous. Even those immigrants who are being removed from the United States based on prior criminal convictions are not in INS detention because of that crime, but because of their immigration status.

Unfortunately, no statutory law exists that clearly lays out minimum detention conditions applicable to administrative detainees such as immigrants in INS custody. As discussed earlier, INS detainees are in a situation that is most closely analogous to that of pre-trial detainees, since they are being detained only in order to secure their presence at legal proceedings, and to ensure compliance with immigration orders. The Supreme Court has noted that pre-trial detainees are constitutionally protected against any condition or practice that amounts to "punishment."[98]

U.S. immigration law makes little explicit comment on the subject of detention conditions for immigrants. Administrative regulations only require that detention centers: provide twenty-four-hour supervision of detainees;conform with any applicable federal, state or local safety and emergency codes; provide food service; and guarantee access to emergency medical care.[99]

Immigrants in INS detention are protected by the minimal constitutional guarantees of due process and the prohibition against cruel and unusual punishment. Courts have long held, as a result, that detained immigrants, particularly those who have legally "entered," have the right to asylum proceedings, to counsel, to court access, to adequate medical treatment, and to legal information.[100]

Some courts, however, have set very stringent standards for establishing other due process violations relating to conditions of confinement. In Lynch v. Cantanella, the Fifth Circuit Court of Appeals strongly supported detained immigrants' due process rights under the Fifth and Fourteenth Amendment to be free from mistreatment during confinement, but subsequent courts interpreted Lynch in ways that limit detainees' ability to seek redress. Now, detainees claiming constitutional violations based on conditions of confinement may have the burden of proving that "cruel treatment was maliciously inflicted upon them" and that they suffered "gross physical abuse."[101] Further limiting detainees' rights, other courts have found that mere negligence leading to squalid jail conditions, did not give rise to constitutional violations.

The constitution's guarantee that no one shall be deprived of liberty without due process of law also requires that the decision to detain an individual must comply with minimum standards of procedural fairness. Detained immigrants, whether in the United States legally or not, may not be arbitrarily detained. Constitutional due process guarantees (in conjunction with the equal protection clause and the right to be free of cruel and unusual punishment) also arguably give detainees the right to have legal procedures and guidelines in place to prevent detention conditions from being arbitrary and punitive. Detention conditions should be reasonably consistent from place to place to ensure that some detainees are not deprived of the ability to obtain information about their rights, for instance, simply because they happen to be detained in one facility rather than another.

There is currently a class action lawsuit pending that challenges INS detention conditions on constitutional due process grounds.[102] The suit, brought by the Center for Human Rights and Constitutional Law on behalf of all INS detainees, alleges that INS detention violates detainees' legal rights by failing to provide such things as visitation with their children, access to law libraries, adequate medical and dental care, and fair disciplinary proceedings. The plaintiffs are currently in settlement discussions with the INS.

If detainees are held, as they often are, in state or county correctional facilities, they are protected by the minimum guidelines established for all state or county detention facilities. But these guidelines vary greatly from state to state and county to county, and often go unenforced because there is no single system of oversight. In addition, the INS is not required by any law or regulation to regularly monitor or inspect the jails holding its detainees.

The INS contracts with hundreds of local jails to house almost 60 percent of all INS detainees. Although the INS could require by contract that such jails meet the special needs of INS detainees (for instance, complete and up-to-date materials on immigration law available to INS detainees), it does not routinely make any additional requirements than those minimum standards required by immigration regulations. The INS claims to have "set as a goal the accreditation by the American Correctional Association (ACA)[103] of each of its detention facilities,"[104] but many of the jail and prison facilities that normally house INS detainees remain unaccredited. Despite the fact that over half of all INS detainees are held in local facilities, it is entirely up to the state or local government to decide whether to seek ACA accreditation for local facilities.[105] It should be noted that even if a jail is accredited by the ACA, this is no guarantee that it is an acceptable place for INS detainees, since ACA standards are designed for institutions that are criminal and punitive in nature, rather than for institutions housing administrative detainees.

Although the United States has agreed in principle that a standard policy on detention conditions is necessary to ensure that all detainees in all forms of immigration detention have the same access to telephones, counsel, visitors, the press, and legal information, such a uniform policy has not yet been adopted.[106] On January 28, 1998, the INS released twelve detention standards covering: access to legal materials; detainee population counts; detainee marriage requests; telephone access; visitation; voluntary work programs; group legal rights presentations; hunger strikes; issuance and exchange of clothing; bedding and linens; medical care; religious practice; and suicide prevention and intervention. The INS plans ultimately to issue a total of forty-five standards. Most critically, these standards will not apply in the state and local jails in which many INS detainees are held, and where conditions are often most egregious.[107]

IV. FINDINGS

List of Local Jails Investigated

The findings in this report are based on Human Rights Watch site visits and interviews with more than 200 INS detainees held at the following fourteen local jails:

Berks County Prison, Leesport, Pennsylvania

Clark/Frederick/Winchester Adult Detention Center, Winchester, Virginia

Denton County Jail, Denton, Texas

DuPage County Jail, Wheaton, Illinois

Euless City Jail, Euless, Texas

Fort Lauderdale City Jail, Fort Lauderdale, Florida

Hillsborough County Jail, Tampa, Florida

Howard County Detention Center, Jessup, Maryland

Liberty County Jail, Liberty Texas

Manatee County Jail, Bradenton, Florida

Orleans Parish Prison, New Orleans, Louisiana

Pike County Jail, Hawley, Pennsylvania

Pointe Coupee Parish Detention Center, Alexandria, Louisiana

Vermilion Parish Jail, Abbeville, Louisiana

Human Rights Watch also interviewed detainees by person or by telephone and received letters from about one hundred INS detainees who were being held, or had previously been held, at the following thirty-five jails:

Kern County-Lerdo Facility, Bakersfield, California

Santa Ana Jail, Santa Ana, California

Yuba County Jail, Marysville, California

Corrections Corporation of America Bay County Jail Annex, Panama City, Florida

Jackson County Correctional Facility, Marianna, Florida

Monroe County Detention Center, Key West, Florida

Ford County Correctional Facility, Paxton, Illinois

Avoyelles Parish Prison, Marksville, Louisiana

South Louisiana Correction Center, Basil, Louisiana

Beauregard Parish Jail, DeRidder, Louisiana

Calcasieu Correctional Center, Lake Charles, Louisiana

St. Martin Parish Correctional Center, St. Martinville, Louisiana

Tangipahoa Parish Jail, Amite, Louisiana

Washington Correctional Institute, Angie, Louisiana

St. Mary's County Detention Center, Leonardtown, Maryland

North Las Vegas Detention Center, Las Vegas, Nevada

Hillsborough County Dept. of Corrections, Manchester, New Hampshire

Merrimack County Dept. of Corrections, Boscawen, New Hampshire

Mercer County Detention Center, Trenton, New Jersey

Tillery Correctional Center, Tillery, North Carolina

Carter County Detention Center, Ardmore, Oklahoma

Lehigh County Prison, Lehigh, Pennsylvania

Snyder County Prison, Selinsgroove, Pennsylvania

State Regional Correctional Facility, Mercer, Pennsylvania

York County Prison, York, Pennsylvania

Dallas County Jail, Dallas, Texas

Nacogdoches County Jail, Nacogdoches, Texas

Reeves County Detention Center, Pecos, Texas

Victoria County Jail, Victoria, Texas

Wharton County Jail, Wharton, Texas

Piedmont Regional Jail, Piedmont, Virginia

Rappahannock Security Center, Fredericksburg, Virginia

Riverside Jail, Hopewell, Virginia

Virginia Beach Correctional Facility, Virginia Beach, Virginia

Human Rights Watch Access

The lack of consistent responses to Human Rights Watch's requests to gain access to local jail facilities was remarkable, though predictable, given the lack of uniformity in the INS/jail arrangements around the country. The obstacles we faced in obtaining access to local jails was at times farcical, as bureaucrats from the INS in Washington D.C., local district directors, and jail officials passed our requests from office to office with no agency taking ultimate responsibility for either allowing or denying us access.

Using a list of jails generated by the INS in response to the Kattola litigation (see Legal Section), Human Rights Watch made direct requests to local sheriffs' offices to tour the county jails and interview INS detainees housed in their facilities. In some instances, this approach was quite productive, and we received a tour of the facility and interviewed freely and privately any INS detainees who were willing speak with Human Rights Watch researchers. Jail officials at Berks County Prison in Pennsylvania, Clark/Frederick/Winchester Adult Detention Center in Virginia, Denton County Jail, Euless City Jail, and Liberty County Jail in Texas, Hillsborough County Jail in Florida and Vermilion Parish Jail and Pointe Coupee Parish Detention Center in Louisiana, were very helpful and gave Human Rights Watch full access to their facilities after our first request.

On other occasions, Human Rights Watch asked the INS headquarters or the local district offices to assist us in gaining access to jails holding their detainees; this approach led to limited success. When we began our research in 1997, several local jails and INS officials told Human Rights Watch that our access requests had been denied because the Kattola class action lawsuit was in the discovery stage. This was the explanation, even though Human Rights Watch was not involved in the litigation in any way. Eventually, the INS's Office of Immigration Litigation intervened at our request and issued a specific directive that Human Rights Watch was not to be barred because of the litigation. Other requests for the INS's assistance in gaining access were less successful.

For example, in Louisiana, sheriffs and local jail officials at Orleans Parish Prison, Avoyelles Parish Prison and St. Martin Parish Correctional Center denied Human Rights Watch's request to tour their facilities and interview INS detainees. At Orleans Parish Prison, Human Rights Watch was told that only Sheriff Charles C. Foti could approve a tour, but he never responded directly to us. The director of federal prisoners at the jail, Mary Baldwin Kennedy, told Human Rights Watch that the only way we would be allowed to visit INS detainees who had written to us was to be placed on their visitation lists, after which we would be allowed a fifteen-minute visit. But in order to get on a detainee's visitation list, a visitor had to have a valid Louisiana identification card and a Louisiana address that matched the address on the identification document. This was clearly not possible for Human Rights Watch researchers. We were also told that any lawyer wishing to visit a detainee would need to show that the individual was not already represented and, if already represented, the detainee would need to state that he or she were considering changing attorneys.[108] The warden of the House of Detention, one of many buildings of the Orleans Parish Prison system, told Human Rights Watch that if we were criminal lawyers wanting to visit a criminal inmate, a legal visit would be no problem, but since we were requesting a legal visit with INS detainees, our request was denied.[109]

Jail officials at Avoyelles Parish Prison initially told Human Rights Watch that local INS officials would have to give their consent before we would be allowed to the tour the jail and speak with detainees. Human Rights Watchthen contacted the officer-in-charge of Oakdale who told us that the INS had no objection to our visit and that she would notify officials at Avoyelles Parish Prison to that effect.[110] But, she said, the ultimate decision "was up to the jails and their local rules."[111] Jail officials denied Human Rights Watch's request. Human Rights Watch researchers then called the warden of the jail, who said we could visit during regular visitation hours. But when Human Rights Watch researchers identified themselves upon arriving at the jail during public visitation hours, a jail official asked us to speak with him in a private office where he angrily, and incorrectly, accused Human Rights Watch of trying to "enter through the back door" in an effort to disobey the jail's decision to deny us access.[112]

A direct request by Human Rights Watch for access assistance to the then-district director for New Orleans, John Caplinger, proved what had already become evident: despite the federal dollars that INS contracts generated for the local parish economies, local sheriffs wielded all control. Caplinger's conversations with the sheriffs of Avoyelles and Orleans Parish stating that the INS had no objection to Human Rights Watch's interviewing INS detainees, resulted only in the assertion by both sheriffs that they controlled access to their own facilities, regardless of the presence of INS detainees.[113] Caplinger eventually brought several INS detainees held at Orleans Parish Prison to the INS District office to be interviewed privately by Human Rights Watch, but he refused to insist that either Orleans or Avoyelles Parish officials allow us access to jails to interview INS detainees.

York County Prison and Pike County Jail in Pennsylvania and Dallas County Jail in Texas flatly denied Human Rights Watch requests for access. The INS district director in Philadelphia, Theodore Nordmark, was unwilling to help Human Rights Watch gain access to local jails in his district holding INS detainees. At Howard County Detention Center in Maryland, jail officials agreed to allow Human Rights Watch to visit the jail and interview INS detainees if the INS would give its permission. INS officials in the Baltimore district office agreed, but when Human Rights Watch arrived at the jail, an INS officer dispatched to meet us said that the jail officials could give us a tour of the facility, if they wanted to, but that we would not be allowed to interview detainees.

Other jails simply provided access as they saw fit. At Fort Lauderdale City Jail, Human Rights Watch was not allowed to interview detainees but was given an extensive tour of the facility. In denying the request for interviews, the jail official in charge told Human Rights Watch, "[E]very time someone comes to talk to [the detainees], they leave and the detainees start saying they don't want to be here. I don't want my staff being harassed and bothered by Immigration coming up here. Groups that visit start asking for these special conditions like a special law library."[114]

Commingling INS Detainees with Local Jail Populations

Here, our lives are in constant danger where there is no classification of inmates. I'm mixed

with murderers, sexual molesters, armed robbers, and the mentally disturbed.

-INS detainee held in Ayovelles Parish Prison, Louisiana[115]

INS detainees are not serving criminal sentences, they are not awaiting a criminal trial, and administrative detention is not punishment. But when the INS contracts with local jails to hold detainees, the agency does not require that its administrative detainees be held separately from the general criminal population. The result is that very often, INS detainees may share living quarters and cells where they sleep with criminal inmates who may be awaiting trial for serious, even capital, crimes. Human Rights Watch found that female INS detainees were even more likely than men to be commingled with accused or convicted criminal inmates in local jails.[116]

International standards for the treatment of detainees require that different categories of prisoners should be held in "separate institutions or parts of institutions according to criminal record, the legal reason for their detention and the necessities of treatment."[117] For example, untried prisoners should be kept separately from convicted prisoners, and civil prisoners should be separated from those serving time for a criminal offense.

Asylum seekers in detention deserve special protection. Although the United Nations High Commissioner for Refugees has recommended that asylum seekers not be detained as a general rule, it has also been explicit that asylum seekers should be segregated from convicted criminals when detained.[118] Even within INS populations, asylum seekers should be kept separately from detainees who have previous criminal records.[119] Furthermore, Article 31 of the 1951 Refugee Convention prohibits governments from punishing asylum seekers who arrive without documentation.

Commingling the local inmate and INS detainee populations reinforces the misconception that INS detainees ought to be treated exactly the same as local inmates regardless of their special needs as immigration detainees. An INS spokesman, Russ Bergeron, has publicly stated that INS detainees "will not be placed in the same cell as criminal detainees" and that "generally speaking...administrative detainees are not placed in maximum security facilities."[120] Human Rights Watch, in the course of our research found that this was inaccurate. In the facilities we researched, Human Rights Watch found that INS detainees frequently shared living space with local inmates and in some instances shared cells with them.

The INS has also repeatedly asserted that even if detainees with criminal convictions in their backgrounds are sometimes housed with local inmates, those without criminal backgrounds are not. This assertion is untrue. For example, in Denton County Jail in Texas, Human Rights Watch interviewed a Honduran detainee who was arrested by the U.S. Border Patrol Brownsville, Texas before being sent to Dallas. He stated that he had never been convicted of a crime, yet the area of the jail in which he lived held forty-eight men who slept in two-person cells, less than ten of whom were INS detainees, the rest being local inmates.[121] We found many detainees in similar circumstances.

Even though they are administratively detained, some jails categorize INS detainees as maximum security prisoners based on their immigration status alone, because they are deemed by jail officials to automatically constitute a flight risk. Other jails use whatever categorization rules they deem appropriate. For example, at Vermilion Parish Jail in Louisiana, where INS detainees are mixed with criminal inmates, the warden defined his classification system as "[y]ou just get a gut feeling."[122] At Liberty County Jail in Texas, all inmates, including INS detainees, are classified using Texas Jail Standards. "This allows us to mix federal detainees with the local population. If we did not classify them this way, INS detainees would have to be held separately."[123]

In the facilities visited by Human Rights Watch where mixing of INS and local inmate populations took place, INS detainees are isolated, through language and detention status. Human Rights Watch interviewed An Mei Weng, a nineteen year-old Chinese asylum seeker at Clark/Frederick/Winchester Adult Correctional Facility in Virginia, who was housed in an open dormitory-style building with approximately ten female county inmates. The young woman, who speaks very little English, relied on male Chinese INS detainees held in other parts of the jail to translate for her. Isolated linguistically and culturally as the sole INS detainee in the dorm, she admitted to Human Rights Watch that she was afraid of the other inmates with whom she was held.[124]

Whether commingling takes place at a local facility is ultimately up to the jail officials who make decisions as they see fit. A letter from INS detainee Amara Shahid Kargbo to Human Rights Watch explained the commingling situation in St. Mary's County Detention Center in Maryland:

[The INS] has agreed with the St. Mary's County authorities to transfer all the INS female detainees from Wicomoco County [Maryland] to this place. So far, six INS female detainees have arrived. However, both female INS detainees and the local county female inmates areheld together in section E. Also, the male INS detainees are now held together in the same section with the local county inmates. This is about to cause a very serious problem.[125]

Kargbo wrote that the assistant director of the detention center told him that commingling was taking place (male INS detainees were previously held separately) because there was no longer enough room for the country prisoners. "Some conflict is already brewing up."[126]

Commingling of local inmate populations and INS detainees can put detainees at serious physical risk. J. Anwar, a Pakistani detainee held in St. Martin Parish Correctional Center in Louisiana, had his jaw broken and teeth knocked out when a criminal inmate attacked him on May 3, 1998 in the living quarters they shared.[127] Although the living area was supposedly monitored by correctional officers, Anwar told Human Rights Watch that no officer appeared until, already injured, he banged loudly on the door.

Anwar had informed the INS many times that he believed he was in physical danger at the jail. Human Rights Watch also made requests to the INS on Anwar's behalf, asking that he be transferred to another facility several months before the attack that left him with a broken jaw and other injuries. Despite several calls and letters to the New Orleans district office from Human Rights Watch and from the Catholic Legal Immigration Network office in Oakdale, Louisiana, Anwar was still held at St. Martin Parish Correctional Center at the time of this writing and has once again been returned to a commingled living area, sometimes sharing a cell with a local inmate.

Some jails do separate INS detainees from the local inmate populations, but when they do, detainees with previous criminal convictions are treated more like criminals than administrative detainees. In Manatee County Jail in Florida, which has a downtown facility and a central jail, all INS detainees were held separately from local inmates in a separate facility. INS detainees with previous criminal convictions were held in a separate maximum security jail, rather than at the all-INS detainee facility downtown. "[INS detainees with previous criminal convictions] are more demanding and harder to handle," the Corrections Bureau chief told Human Rights Watch. "They get victims and take advantage of them. The others are kind and meek."[128]

Insufficient jail staffing also contributes to unsafe environments in the jails when INS and local inmates are commingled. In Dallas County Jail in Texas, detainee JosÉ Reyes told Human Rights Watch that jail officials monitored the living areas only five or six times in a twenty-four-hour period. Because of the lack of supervision, "there have been fights," said Reyes, "but the officials want to see blood before they intervene. If the officers came around more or if there were cameras, there would be less problems."[129]

Living Conditions

I am locked in a cage twenty-four hours a day. The food is very little. There is no light in my cell. There is no law library. The place is filthy. It looks like a dog pound.

-INS detainee in Beauregard Parish Detention Center, Louisiana[130]

International standards call for humane treatment of detainees.[131] Even such a basic requirement is often impossible for the INS to guarantee when it relies on local jails to house its detainees yet makes no contractual demands that the facilities are nationally or locally accredited or meet necessary conditions of confinement. Many of the hundreds of local jails used by the INS, some built as long ago as 1910, subject detainees to inadequate and sometimes inhumane living conditions that include overcrowding, little or no outdoor exercise, insufficient clothing, limited hygiene products, and insufficient quantities of food.

Local jails are designed to hold accused and convicted criminals on a short-term basis and therefore usually do not offer educational programs or work opportunities, leaving detainees absolutely idle for months or years at a time. Libraries are limited or non-existent, and few facilities have reading materials in the languages of the detainees. Detainee complaints about the physical environment of jails range from cigarette smoke-filled air, to cockroaches and vermin sharing their cells.

Physical Space

The physical environments of the jails used by the INS vary in management, cleanliness, and size. For example, some jails adhere to a "direct supervision" corrections approach whereby a jail officer is present in the living area twenty-four-hours a day. Other jails monitor inmates by video camera and speak to them through microphones, while in other facilities, inmates are visited by correctional officers infrequently.

But jails, new and old, have one thing in common: they are designed to control and contain accused or convicted criminal populations for limited periods. As a result, even the cleanest, newest jails subject detainees to hours of mandatory lockdown; house people in small, crowded spaces; punish people for failure to understand rigid jails rules; and, in general, are inappropriate places to hold administrative detainees, especially asylum seekers.

One of the most inappropriate jail arrangements Human Rights Watch encountered during the course of our research was in the Chicago INS district.[132] Because there are no INS-run, or privately contracted for-profit detention centers within the district, all detainees must be held in city and county jails. The majority of INS detainees are held in DuPage County Jail, outside Chicago, but a smaller number of detainees are shipped back and forth daily from an INS building to tiny city jails. As part of this arrangement, a few dozen detainees are sent each afternoon to city jails where they spend the nights and weekends. Each morning they are retrieved and spend each weekday until 3:00 p.m. in large, windowless seating areas at an INS facility called the Broadview Service Staging Area.[133]

According to detainees, the city jails are little more than police lock-ups, and therefore, have no on-site medical units, no kitchens, no shower facilities and no libraries, nor do they offer outside recreational time. Detainees are not allowed visits from their friends or family and, in some jails, are prohibited from making telephone calls, including to legal counsel.

Fabio DÍaz, an INS detainee from the Dominican Republic, was held in Stone Park City Jail in December 1996. He described the conditions as follows:

The jail had no heat and it was thirty-five degrees outside. Six INS detainees were put in a room originally meant for two people - another room meant for two had four people in it. The room is never cleaned, and there are no clean sheets. One time I purposely spilled water on my blanket so that I could get one that didn't stink so badly.

From Friday to Monday we can't shower. We are just in our cells all weekend long. We are not allowed to bring any property, and there is no radio, no TV, no games, no books.[134]

When DÍaz asked jails officials for a grievance form to complain about the conditions, he told Human Rights Watch that he was told that Stone Park City Jail did not have grievance forms.

Worst of all, the INS detainees that are most likely to be placed in the city jails each night were ill or disabled detainees that the larger county jails would not house, and asylum seekers waiting for credible-fear interviews According to the INS, DuPage County Jail would not accept detainees who were taking heart medication, disabled, or who had active tuberculosis. As a result, one blind Jamaican detainee was held in the city jail arrangement for eight months.[135] Oscar Flores GuzmÁn, a Mexican detainee interviewed by Human Rights Watch at the Broadview Service Staging Area, was on crutches and had a cast on his leg because of torn ligaments in his knee. "It is very hard for me to have to go back and forth between the jail and Broadview every day," he told Human Rights Watch, "[I]ts hardclimbing in and out of the van."[136] GuzmÁn also said that although Western Springs City Jail, where he was being held, was clean and not overcrowded, correctional officers there only check on the detainees once an hour, making it difficult to get their attention when detainees have particular needs or requests. Fabio DÍaz reported that when he was held at Western Springs City Jail, a detainee from Jordan had an epileptic attack when no correctional officers were around: "If you need any sort of attention during that time, you're out of luck," he said.[137]

Asylum seekers in expedited removal proceedings may also be placed in the jail/Broadview arrangement pending credible fear interviews. The city jails are inappropriate places to hold asylum seekers because of the lack of essential services and because telephone and visitation policies of the city jails are more restrictive and impede legal assistance.

At the Broadview center, Human Rights Watch interviewed Digafe Wkidan, an Ethiopian asylum seeker who showed a Human Rights Watch researcher scars where he said he had been burned with a hot knife by Ethiopian police.[138] He said he felt "very worried" in detention and cried several times during the interview. Wkidan told Human Rights Watch that he did not know what was happening to him - whether he was awaiting a credible fear interview or whether he had already been ordered deported. Upon being detained at the airport the previous day, he was given a two-page instruction sheet in English explaining the credible fear process and a list of legal services providers. Wkidan told Human Rights Watch that he called all the organizations on the list, but they either would not accept a collect call or told him they could not help him. When Human Rights Watch interviewed him, Wkidan said he was not going to make any further efforts to contact anyone else for advice, since he felt it would be futile. He also said he was having trouble making telephone calls at the Broadview center because he needed an officer's permission to do so but stated, "The guards don't talk to you."[139]

Some of the most disturbing and consistent complaints of inhumane conditions came from detainees at Orleans Parish Prison in Louisiana, where the jail facility has ten buildings and holds more than 6,000 individuals, approximately 500 to 600 of whom are INS detainees. "My first time here, I thought I'd gone to hell," one detainee recalled upon arriving at the Central Lock Up (CLU) section of the jail.[140] "We spend eighteen hours in the cell and are allowed out only between 12 and 6 p.m. When I arrived I wasn't given any bedding. Later, I got a wool blanket that made me very hot [in August]."[141]

In another building of Orleans Parish Prison, called the House of Detention (HOD), every detainee Human Rights Watch interviewed who had been held in the building complained that cockroaches and mice wereubiquitous.[142] Several detainees reported that to pass the time they constructed traps to catch the mice. One Cuban detainee who spent five months in HOD before being released, claimed that in one night, he and his friends caught ten mice in a homemade trap.[143] All detainees interviewed reported that the bathrooms were dirty and that the water would alternate between very hot and very cold. According to the detainees, HOD had no air conditioning, and the jail relied on two old fans that were insufficient to cool the humid Louisiana summer air. "Even in your underwear you sweat. You can't sleep at night," one detainee told Human Rights Watch.[144]

Human Rights Watch also found that INS detainees were sometimes placed in the older or unused portions of local jails. In Berks County Prison, Pennsylvania, where roughly 24 percent of the $40 per diem paid by the INS is profit for the jail, INS detainees were placed in the older, inferior jail sections built in 1933, while regular inmates were housed in the better, newly renovated areas.[145] The area in which the INS detainees with previous criminal convictions were held was by far the worst area of the jail, with very low ceilings, stuffy air and a small dayroom. One detainee in this section told Human Rights Watch that for five days during a period of overcrowding he slept on a mattress on the floor of the cell under the toilet which left him, and his mattress, splattered with urine.[146]

In Liberty County Jail in Texas, Human Rights Watch found eighteen female INS detainees living in one large, cold, damp room in the old part of the jail built in 1936. The women reported that there were not enough cots for all the detainees, forcing several women to sleep on mattresses on the floor of the cells; several of the women complained that they were sick. Liberty County Jail, a for-profit enterprise run by the Corrections Corporation of America, receives $52.50 a day for each INS detainee but charges only $25 to house each county inmate. On the day of Human Rights Watch's visit, almost half of the INS detainees were in the old jail, rather than the new facility built in 1991.[147]

Indian Sikh asylum seeker Rajinder Singh, who had been detained by the INS for nearly two years when Human Rights Watch interviewed him, described the conditions he experienced during his six months of detention at Bay County Jail Annex in Panama City, Florida, which is also operated by the for-profit Corrections Corporation of America.

The people in the jail were behaving like animals. There was mixing of criminals and INS detainees. The criminals would steal and rob food. There were only four showers in the bathroom for nearly sixty people, and the criminals would take one-or two-hour showers. They would also masturbate in front of the women guards....The jail did not wash our clothes. I got a pillowcase to pray, and it was dirty. I washed it, and it was like mud.[148]

Prompted by the abysmal jail conditions and frustration about the progress of their immigration cases, about twenty-two Sikh asylum seekers at Bay County Jail Annex went on a hunger strike for approximately thirty days beginning in October 1996.[149] Despite the risk to the hunger strikers' health - twenty-one were fed intravenously - and the seriousness of their complaints, detainees claimed that the jail administrators did not adequately respond and that the INS gave little direction to the jail about how the detainees should be treated.[150]

Euless City Jail, located outside Dallas, is used by the INS because of its proximity to the international airport. It is a small facility of forty-eight beds built almost thirty years ago and intended to hold people only on a temporary basis. It has no on-site food preparation, no doctor or nurse on staff, no outside recreational facilities, no library, and one shower for all inmates. There are no windows in the living area, where detainees spend all day on bunk-beds in cold dark cells. When Human Rights Watch visited the jail at midday, all of the INS detainees were lying on their beds wrapped in wool blankets.

Even full ACA accreditation does not guarantee satisfactory living conditions. At Hillsborough County Jail in Florida, where the director of the jail is on the ACA standards committee and a past president of the American Jail Association, there was such severe overcrowding that inmates had to sleep in "boats" (blue, plastic cradles with bedding) on the floor of the cells and in the hallways.[151] Two different units, each meant to hold sixteen individuals, housed twenty-two and twenty-three people on the day of Human Rights Watch's visit.

Recreation/Exercise

Exercise and fresh air are fundamental to maintaining adequate physical and mental health, especially when people are detained for months or years in poorly ventilated, smoke-filled jails with few other activities.

International standards dictate that prisoners should receive one hour per day of exercise in the open air.[152] The American Correctional Association standards also provide that inmates should be allowed one hour daily of physical exercise outside the cell, and outdoors when weather permits.[153]

The INS itself has a policy on detention that has been in place since 1996.[154] Currently, it is the only INS detention standard expressly applicable to detainees held in local jails. This written policy clearly states that detainees held in Service Processing Centers and INS contract facilities "shall be offered the opportunity to participate in daily recreation" a minimum of one hour per day outside the detainees' living quarters. The policy further states "[W]here available, a minimum of one hour per day, seven days per week of outdoor recreation shall be offered to each detainee."

For detainees held in local jails, the standards state that "[i]n general, it is the policy of the INS not to use detention facilities that do not provide for indoor or outdoor recreation of INS detainees."[155] In "exceptional circumstances," facilities that provide no recreation may be used for "temporary, short-term housing," which the policy later describes as a forty-five-day period that may, in certain circumstances, be extended to sixty days. "In no case," read the standards, "will the total time in detention exceed sixty days in a detention facility where no recreational activities are available, unless the detainee has been afforded the option to transfer to a facility which provides recreation."[156] The standards even incorporate a procedure for transfer of a detainee who has been held, whether in a local jail or Service Processing Center, for a period of six months without regular access to outdoor recreation.[157]

The INS policy requires that all new and renegotiated contracts stipulate that detainees be given the opportunity to "recreate daily."[158] Yet despite the existence of the policy, in place for two years, no warden or jail official interviewed by Human Rights Watch ever responded that the INS required daily recreation when asked direct questions regarding the requirements the INS placed on local jails in order to enter into a contract. In addition, none of the contracts obtained by Human Rights Watch contained any written reference to a recreation policy.[159]

The lack of the policy's enforcement was evident when dozens of INS detainees told Human Rights Watch that they are seldom or never allowed outdoor recreation time or that recreation often depends on the whims of the correctional officers on duty on any particular day. "We never get to go outside," a Vietnamese detainee held in Dallas County Jail told Human Rights Watch. "[T]here is a weight room, but you have to sign up and share it with other, criminal inmates."[160] At Clark/Frederick/Winchester Adult Detention Center in Virginia, jail officials statedthat no inmates are allowed outdoor exercise when the temperature is lower than fifty-five degrees because the jail did not want to have to provide outerwear.[161]

Human Rights Watch also found that jail officials sometimes described recreation policies that were contradicted by the detainees we interviewed. For example, Liberty County Jail operates under Texas Jail Standards that mandate one hour of recreation, three days a week. The chief of the jail told Human Rights Watch that Liberty County complies by giving detainees one hour of outdoor recreation five days a week.[162] But Janet Kumi, an asylum seeker from Ghana detained at the jail, said outdoor recreation was irregular: "Sometimes we don't go out at all, sometimes three days a week for an hour each time.[163]

At Orleans Parish Prison, a jail official told Human Rights Watch that INS detainees received three hours a week of outside recreation time.[164] But detainees we interviewed reported that recreation was usually limited to one hour a week, sometimes outside and sometimes in an indoor gym. One detainee said, "We go once a week to the gym and sometimes once a week outside."[165] Another detainee told us that he was taken out to the yard once a week. Yet another detainee reported that when he was housed in one of the buildings of the jail, he was taken to a patio two times week, but when he was transferred to another building in the Orleans Prison complex, he was given recreation once a week and "at times even a month would go by with no recreation."[166] What emerged from our interviews was an inconsistent and inadequate recreational policy.

Not all jails limited themselves to the minimum of three hours a week suggested by the ACA. Denton County Jail allows detainees to use an outdoor recreation area every day. DuPage County Jail also allows one hour of recreation a day in a large space with a basketball court and weights surrounded by screens that allow in both air and sunlight. According to the warden of the jail, when detainees get recreation time, "they're easier to deal with."[167]

Food

Complaints about the quality of institutional food are common among detained individuals, and INS detainees in local jails are no exception. Often, Human Rights Watch was told that food rations were insufficient or served so early in the morning that detainees were hungry by the end of the day. For example, one Somali asylum seeker who had been detained at DuPage County Jail in Illinois for five months at the time of our interview told Human Rights Watch that he had lost twenty pounds because of stress and anxiety and because there was "not good food. Not enough food."[168] Another asylum seeker from Liberia, detained at the same jail, claimed that two weeks earlier hehad weighed 155 pounds, but that on the day of our interview he weighed only 146 pounds.[169] "They serve us breakfast at 5:45 a.m. and dinner at 3:45 p.m., " he said, "I am very hungry. They are supposed to give me snacks to keep my weight up, but they don't."[170]

At some jails, detainees complained that they were served food that was still frozen. At Euless City Jail, all meals are kept in the freezer and microwaved before serving, since there are no food preparation facilities at the jail. At Manatee County Jail, food is prepared at the main jail and then rapidly cooled before being sent to the INS facility, where it was sometimes cold or undercooked when served.

Many jails tried to accommodate religious dietary restrictions when ordered by doctors or tried to accommodate detainees who requested vegetarian meals for religious reasons. Still other jails made their own limitations: "We don't do kosher," a jail official at Fort Lauderdale City Jail told Human Rights Watch. "Unconstitutional. We don't have to."[171] Hardeep Singh, a Sikh Indian asylum seeker held at Orleans Parish Prison, told Human Rights Watch that when he asked for a vegetarian meal, jail officials told him to just throw away the meat. "But there's not much food left after you throw away the meat, so now I just eat it."[172]

Clothes/Lack of Supplies

At Liberty County Jail, a private, for-profit operation, there were not enough shoes for detainees. Human Rights Watch researchers interviewed one woman who normally wore a size four shoe but was forced to shuffle around her cell in size fifteen shoes. In the same cell area, a Mexican detainee showed Human Rights Watch a request form she had previously submitted asking for shoes. The answer she received was simple: "We have no size eight shoes at this time."[173] Reina Gonzales, from Honduras, told Human Rights Watch:

The jail took away my shoes because they were a different color. I walk around barefoot. The jail does not give us underwear or a bra - even when we have our period. I just have to sit around when I am using a Maxi pad.[174]

At Denton County Jail in Texas, a Vietnamese detainee reported that correctional officers would not let him wear his underwear because it was black, a color not allowed by jail rules.[175] According to the detainee, the jail would not provide any other underwear, so he was forced to purchase a pair from the jail. Another detainee at the same jail stated that sometimes detainees just had to "go without underwear."[176]

Detainees also complained of a shortage of supplies like toothbrushes, toothpaste, shampoo and soap. At Euless City Jail in Texas, one detainee expressed frustration to Human Rights Watch about the lack of writing supplies, since the jail offered no pens, paper, or stamps: "We are incommunicado," he said.[177]

Educational Programs/Activities

Since jails are intended to be short-term facilities, many do not have any educational or vocational activities. In addition, detainees are rarely given the opportunity to work in a facility even when other inmates are allowed to do so. Often, jail officials told Human Rights Watch that detainees are allowed to participate in the same programs as the general inmates, yet detainee interviews in some jails contradicted these statements. At DuPage County Jail in Illinois, jail officials said that detainees could participate in Alcoholics and Narcotics Anonymous programs, high school equivalency classes (GED), college-level classes and anger control classes: the jail official even included commissary (where candy, batteries, etc. are purchased) in the list of programs.[178] Detainees held at the jail, however, told Human Rights Watch that no programs are offered to them, so they just sleep and watch TV during the day. One detainee stated that he could take the GED test through the jail but was not allowed to take the preparatory classes.[179]

Even when detainees take the initiative to try to acquire skills during their detention, some jails thwart these efforts. Soeung Chhunn, a long-term Cambodian detainee in Orleans Parish Prison in Louisiana, made a request to take a correspondence course for which his family had offered to pay. On the request form, he wrote, "I'll pay for the tuition and book, there is no expense to the government." He received a response the next day: "Request denied." No further explanation was offered.[180]

The ability to take classes is especially important to Chhunn, and others like him who are long-term unremovable detainees, since efforts at self-improvement will help them obtain release in the New Orleans pilot release project. When a jail offers no vocational or educational programs there is no way for people to earn credits toward release. No detainee interviewed by Human Rights Watch in Orleans Parish Prison had ever received classes in anything.

Some jails allow detainees to work. Vermilion Parish Jail in Louisiana even allowed long-term detainees to gain trustee status, such that they could work outside the jail facility. But at Liberty County Jail in Texas, detainees told Human Rights Watch that working in the jail was voluntary but that once one had agreed to work, failure to do so would result in disciplinary action. One female detainee from Mexico said that she fell while she was working in the kitchen at the jail. After four days of recuperating, she was told by jail staff to go back to work. "They told me, `If you quit, there is a penalty.' The usual penalty is getting locked down in your cell."[181]

Property

When detainees are transferred from facility to facility it is common for their property to be lost or thrown away. "You always have to leave everything behind when you are transferred," one detainee who had beentransferred five times in seven months of detention told Human Rights Watch. "You have to buy them at one place, leave them, then buy them again later."[182]

Loss of legal papers and other supporting documentation can have serious consequences for asylum seekers and others trying to fight deportation. Harjinder Singh, an Indian Sikh who had been in INS detention for two years at the time of our interview, was unable to receive critical documentation from his family because of frequent transfers. After his lawyer failed to file a crucial appeal, Singh said he decided to represent himself and solicited documentation from the Sikh Student Federation and his family. The documentation was initially sent to Krome Service Processing Center in Miami, Florida, but Singh had been transferred to Bay County Jail Annex in Panama City, Florida (run by Corrections Corporation of America) and never received it. Later he was transferred to Monroe County Detention Center in Key West, Florida where he asked his family in Canada to fax the documents again to him. Singh had still not received the documents when Human Rights Watch interviewed him a year later, when he had once again been transferred back to Krome.[183]

In a letter to Human Rights Watch sent from Orleans Parish Prison, Chinese detainee Ke Tuo Shan wrote:

I was picked up from the Miami airport and put in Krome. After almost two years in Krome I was transferred to Orleans Parish Prison. When I was transferred I wanted them also to transfer my clothes and money. They said in Miami that they couldn't find the clothes and money. I think they took it or lost it. If I get returned to China, I will have to return in these same prison clothes.[184]

Francisco Puig, a Cuban detainee held at Berks County Prison in Pennsylvania, suffers from asthma. After serving a criminal sentence in New York, he was transferred to INS's Varick Street facility in New York City, then to Pike County Jail in Pennsylvania, before ending up at Berks County Prison. His asthma pump was lost during the transfers. Puig claimed that when he arrived at Berks he was given a used, dirty asthma pump instead of his own.

Jails officials cite security reasons as justification for jail rules prohibiting or limiting the property that inmates and detainees can receive or possess. For example, an Amnesty International volunteer told Human Rights Watch that in April 1998, a Sri Lankan asylum seeker detained in Orleans Parish Prison in Louisiana requested her assistance in obtaining a Tamil-English dictionary. Jail officials explained to her that jail policy requires that all books sent to detainees must be soft-cover, new, and mailed directly from the publisher to the jail. Unable to find the requested dictionary without a hard cover, the volunteer asked if the jail could remove the cover before giving the book to the detainee, which the director of federal prisoners for the jail, Mary Baldwin Kennedy, agreed to do. The volunteer described what happened next:

When I called the publishing company, they asked me if I wanted an inscription placed in the book. I said, sure, and told them to write "Best of luck in your studies." I waited for a couple of weeks, but when the detainee told me he hadn't received it, I called Mary Kennedy. She told me that she received the book and that it had come with the inscription paper clipped to a page in the book. She told me she wasn't going to give the detainee the book because the paper clip could be used as a weapon. I felt like she was insinuating thatI tried to sneak it in, even though it came from the publisher. I asked Ms. Kennedy if she could just remove the paper clip and the note before giving the dictionary to the detainee. She told me that she had already done enough and that she would not give it to him. The book was supposed to be put in his property, but he never got it when he was deported.[185]

When asked about the incident, Kennedy told Human Rights Watch that security protocol demanded the action she took: "If someone could get a paper clip into the book, they could get also get liquid narcotics onto the pages of the book."[186] The policy is confusing, however, since the dictionary was sent directly to Kennedy from the publisher as is required by jail rules. If there were doubt that this book was tainted by the publisher, then presumably any book could be, yet the jail normally allows these books to be given to inmates.[187]

Language

You'd be surprised what can be done with hand gestures.

-Director of the INS Facility at Manatee County Jail in Bradenton, Florida when asked by Human Rights Watch what he does when INS detainees do not understand the jail's orientation session.[188]

When detainees from countries like Pakistan, China, Ecuador, or Afghanistan find themselves in local jails around the United States, communication between jail officers and detainees is often impossible. Many local jails holding INS detainees are located in rural parts of the country where authorities may never have encountered non-English speaking inmates before the INS began paying them to hold its detainees.

Language barriers make everything from receiving medical attention to understanding jail rules extremely difficult. Without translation assistance, detainees cannot understand legal services lists, call attorneys, make requests or file grievances. Most jail officials interviewed said they never or only rarely had communication problems with the detainees, an assertion contradicted by many detainees interviewed.

In May 1998, Human Rights Watch received a letter from fourteen Hispanic detainees, all of whom spoke only Spanish and some of whom were illiterate, who were held commingled with criminal inmates in Riverside Regional Jail in Virginia. "We are asking for your help," they wrote:

In this place, there is no medical or security personnel that speaks or understands Spanish and if they ever use the Spanish that they know it is to tell us that we are dogs and other vulgar and sexual expressions. We can't say anything because they are very violent andsome of the police and medical personnel say that Hispanics are the worst people in the world and that they don't like us.[189]

Over and over both, detainees and jail staff told Human Rights Watch that detainees who did not speak English had to rely on other detainees to translate for them. We interviewed two Chinese asylum seekers who had been in INS detention for almost two years and who spoke no English at all. While in Monroe County Jail in Florida, one of the men, L.J. Ying, complained that he had a rash that needed medical attention and had to use hand gestures to get correctional officers to understand his problem. "It was very difficult to get them to understand what was happening. I don't understand the correctional officers or understand what they want from me."[190]

Some detainees are totally linguistically isolated without other detainees to translate for them. For example, a Sri Lankan asylum seeker who speaks no English has been detained at Orleans Parish Prison in Louisiana since December 1995, more than two-and-a-half years at the time of this writing. For a time, another Tamil-speaking detainee translated for him, but once the other detainee was deported, he had no way of communicating with jail staff or other detainees.[191]

Some local jails have bilingual or multilingual staff but, as is characteristic of the INS/jail arrangement, there is no uniformity among jails used by the INS and no requirement that the jails accommodate detainees' linguistic needs. When asked how the Orleans Parish Prison in Louisiana dealt with language needs of INS detainees, the director of the federal prisoners at the jail said, "We make it work. We make ourselves understood. They make themselves understood if they want it bad enough."[192] She added, "We have staff members who speaks Portuguese, Vietnamese, and Oriental [sic], which basically covers the needs of the people. I don't speak any of these languages and I can understand detainees just fine."[193]

Communication with the Outside World

Locked behind bars in criminal jails, limited in their English language ability and fearing possible deportation, immigration detainees are both physically and emotionally isolated. A key element in overcoming this isolation is communication with friends and family in the outside world. Outside sources not only provide critical emotional support, they also often provide the only financial and logistical resources available to help the detainee obtain legal counsel.

International standards recognize the importance of detainees' ability to communicate with and receive visits by friends and family.[194] The ability to communicate is especially important when detainees need to inform friends or family that they have been detained or to notify them that they have been transferred.

In many jail facilities visited by Human Rights Watch, jail rules governing the daily communication with the outside world, in particular, phone access and visitation, were inadequate to meet the needs of INS detainees.

Telephone Access

Most local jails do not offer coin-operated pay telephones, making it difficult for detainees to contact family, friends or legal counsel. Available telephones are equipped to make collect calls nationally but not internationally. This puts immigrants, especially asylum seekers, at an extreme disadvantage, since many detainees have no contacts in the United States and must rely on people in their home countries to send them money or to provide critical documents needed to prove an asylum claim.

In some jails we visited, the telephones did not permit toll-free calls. The meager budgets of non-profit immigration organizations mean they often cannot accept collect telephone calls, but sometimes they have set up toll-free lines. The availability of collect-only telephones unduly limits a detainee in obtaining and maintaining legal representation.

Other limits on telephone access, such as restrictions on the use of calling cards and limited hours of access, were reported to Human Rights Watch. "The phone is turned off at the jail's discretion," a woman from Nigeria detained at Liberty County Jail in Texas told Human Rights Watch. "[T]he jail turned off the phone in our living section for a week one time. They only turned it back on after somebody's attorney called in a complaint."[195]

INS detention standards on telephone access, issued in January 1998, attempt to remedy similar problems encountered by detainees in INS service processing centers and contract facilities. They provide many improvements for detainee telephone access, but shortcomings include an unnecessary limit on free telephone calls to legal service providers, which are allowed only when they are attempts to obtain legal assistance rather than calls to maintain communication.[196] The standards also limit the receipt of incoming calls to emergencies only, instead, for example,of allowing lawyers to arrange a time to call their clients in detention.[197] Their primary shortcoming, of course, is that they do not establish telephone access rules in local jails.

Visitation

In most local jails inspected by Human Rights Watch, INS detainees could receive visitors only according to the limited rules of the local jails intended for local inmate populations.[198] Visitation schedules varied in length and frequency, but rarely was any consideration given to the special needs of immigration detainees who often found themselves held in local jails thousands of miles from where they were living or where family, friends or legal counsel were located. Visitation schedules varied from fifteen minutes to one hour, one to three times a week. Visitation by friends and family was almost always "non-contact," meaning that thick plastic barriers or metal bars separated detainees from their visitors. Detainees we interviewed reported that relatives could not touch or embrace them or pass important papers to them containing addresses, phone numbers, or other pertinent information. Visitation rooms for friends and family lacked privacy: in some jails, detainees spoke with their visitors through phone receivers, in others they simply had to talk loudly through the bars or holes drilled into the plastic. Many jails did not allow minor children to visit, citing health risks and insurance liability. However, a few jail officials said they would make special arrangements in extraordinary circumstances, such as a visit from a newborn child.

Little apparent consideration was given to how far a family would have to travel to visit a detainee or whether a visit with a spouse or child might be the last before a detainee was deported. Leslie GarcÍa, a Nicaraguan detained in Euless City Jail in Texas, told Human Rights Watch that his wife and young daughter were turned away by jail officials after driving an hour-and-a-half to see him. During the two months he had been at the jail, GarcÍa's family had been allowed to visit him on three occasions, but he had never been allowed a contact visit. Jail officials told Human Rights Watch that although the regular hourly visits were usually non-contact, "exceptions are made for INS detainees, especially when they are being deported. We try to let them get outside with their family [where picnic tables are located]."[199] Garcia said he had never received nor was even offered the option of a contact visit.

Some jails required that all visitors be placed on a visitor list, which often limited the number of visitors per detainee. Visitors lists are unnecessarily cumbersome and can unreasonably restrict a detainee's access to the outside world. In Orleans Parish Prison, for example, an individual must be named on a detainee's visitation list in order to visit once a week for fifteen minutes. To be placed on the list, however, an individual must have a Louisiana identification card and an address in Louisiana that matches the identification document. The restrictions are inappropriate for INS detainees, who are often sent to Louisiana from other states, as their families and friends would be unable to meet the visitation requirements. The restrictive requirements also cannot be met by representatives of human rights groups and immigrant advocacy groups who are concerned about detainees in Louisiana but who reside out of the state.

Medical Care

I filled out a [request] to see a doctor four days ago, but I haven't seen one yet. I have a fever and nausea. I told the guard I want to see a doctor and he just told me to fill out a [request]. I haven't been told anything.

-INS detainee from Mexico held in Dallas County Jail, Dallas, Texas[200]

When contracting with local jails, the sole INS requirement concerning medical care is that twenty-four hour emergency care be available to detainees.[201] The contracting jail is not required to have a doctor, nurse, or medical unit on staff. Initial health screening for such things as infectious diseases is not required. The INS has no discernible policy regarding which medical services should or should not be provided by local jails or whether there are monetary limits that require INS approval.[202] This situation has resulted in a lack of prompt treatment, requirements that detainees pay for medical treatment, inadequate diagnosis or treatment of mental problems, inability to communicate with detainees seeking medical treatment, and a dental policy in which extraction is the sole remedy for every dental problem.[203] The lack of appropriate mental health care and counseling in local jails is especially detrimental to asylum seekers.

Prompt Attention to Medical Needs

While international standards and ACA guidelines dictate that ill prisoners seeking medical attention should be seen daily, INS detainees report long waits following even the most basic requests and complain that serious ailments often go untreated.[204]

An INS detainee held for two years in Orleans Parish Prison in Louisiana told Human Rights Watch:

I broke my finger three weeks ago playing basketball. I was taken to a nurse and saw the doctor the same day, and he said I should get an x-ray. Every day I have asked about the x-ray and they tell me they put me on a list. I am still waiting. My finger hurts, and I cannot bend it. If you tell the deputies, they never listen to you. Instead they threaten you. It's very hard to get their attention when you need a medical form.[205]

In Avoyelles Parish Prison, a Cuban detainee recalled, "One guy got pneumonia. He asked for medical treatment, and they put him in a lockdown cell. He never got medical treatment. He was in the lockdown room for a long time. He got skinny, skinny, then they let him go."[206]

At Liberty County Jail, Human Rights Watch interviewed a Salvadoran woman who appeared quite ill. She had dark circles under her eyes and was pale and shivering under a blanket. She had been sick for five days and had not seen the doctor, despite several requests.[207] At the same jail, Jennifer Wright from Jamaica told Human Rights Watch, "It can take up to seven days for the jail to answer a medical request. I requested a pain killer for my period cramps and never got it."[208]

Some jails have clearly inadequate medical facilities. For example, Euless City Jail in Texas is a tiny local jail not equipped for long-term detention, yet some of the immigration detainees interviewed by Human Rights Watch had been held at the facility for three months. According to jail officials, when there are illness complaints, the paramedics are summoned, and if necessary detainees are transferred to the hospital. Such a system does not adequately address common ailments or illnesses such as headaches, stomach aches, cuts, or bruises.

Payment for Services

International standards provide that "[medical] care and treatment shall be provided free of charge,"[209] yet county and state inmates in local jails are frequently asked to pay a fee for each visit to the doctor to reduce frivolous visits. In most facilities we investigated, immigration detainees were exempt from paying for treatment, but not in all.

DuPage County Jail in Illinois charges a $10 fee per medical visit for all inmates, including INS detainees. According to the warden, if a detainee is indigent, medical visits are credited against his or her commissary account; if money is ever received into that account, the medical debts are paid first. The result, according to all of the INS detainees we interviewed, is a second-class status for indigent detainees. "When you have money in your account, the doctor calls you quickly," stated one asylum seeker form Liberia. "When you don't have money, they don't call you for a long time."[210]

At Denton County Jail in Texas, jail officials were uncertain whether or not detainees were charged for medical care. A jail doctor told Human Rights Watch, "[I]nmates are charged $3 [for medicine]. I'm not sure about the INS detainees; they may be charged a dollar."[211] Detainees at the jail are likewise confused about what they must pay to receive medical attention. One detainee told Human Rights Watch that he understood that "you have to pay $10 to go to a check-up, and then they charge you more when they give you something," while another detainee said that he "won't go see the doctor because they charge you $16."[212]

Infectious Diseases

Initial medical screening upon admission to a facility is critical in order to identify infectious diseases and to insure that detainees receive proper care without putting other inmates at risk.[213] Screening is also important to identify other chronic or serious conditions, such as HIV, that require special attention. Although most of the newer and bigger jails visited by Human Rights Watch provided initial medical screening, smaller, older jails without medical facilities were unable to provide this service and were less able to care for individuals with infectious diseases.

Human Rights Watch received letters from INS jail detainees infected with HIV or suffering from AIDS. "I would like to request a transfer to another detention center with a better medical facility due to a very severe AIDS case I have," wrote a detainee held in Kern County Jail in California. "I feel I'm not getting the right medical treatment here. I've had four appointments to visit an outside doctor and they have all been canceled."[214] A Vietnamese detainee held for twenty-eight months by the INS at the time he wrote Human Rights Watch from Orleans Parish Prison in Louisiana, also expressed fear and concern over the treatment he was receiving:

I myself have full-blown AIDS, my "T" cell count is way below 200, I fear for my life daily due to insufficient medical care and a diet negligent of the basic vitamins and minerals needed to stabilize my health and condition...[The medical tier] is a very cramped, unhealthy place. This place is designed to hold twenty-one patients, but on any given occasion there are thirty to thirty-five patients sleeping on the floor![215]

J.G., a Honduran detainee held at DuPage County Jail in Illinois who was discovered to have active tuberculosis, provides another illustration of the dangers of INS's reliance on medical policies of local jails. J.G.'s attorney told Human Rights Watch that his detained client failed to appear for a deportation hearing in a Chicago immigration court.[216] After examining his file at the hearing, the INS trial attorney discovered that J.G. had been released from detention more than a week earlier because he had active tuberculosis. Jail officials told Human Rights Watch that about a week after arriving at the jail, correctional officers noticed that J.G. was showing symptoms of active tuberculosis. The jail then notified the INS that it did not have proper facilities to keep someone with active tuberculosis and returned him to INS custody. A senior INS official in Chicago told Human Rights Watch that the INS was not able to find another facility that would take J.G., so he was released.[217] According to the official, the INS dropped GarcÍa off at a local homeless shelter. He was not given any medicine, nor was the public health department properly notified.

The INS also never notified J.G's lawyer of his client's release, instead allowing the young man with an active infectious disease to wander off with no resources. Although the warden at DuPage County Jail later reported that "the Health Department finally tracked him down at a local hospital," his lawyer has not heard from J.G. again.[218] "For all I know, " his lawyer told Human Rights Watch, "he could be dead."[219]

Dental Care

At every jail Human Rights Watch visited, detainees reported that the only dental care they were offered was tooth extractions. Both international standards and ACA guidelines explicitly refer to the provision of dental care for detainees; the ACA guidelines explicitly state that dental treatment should not be limited to extractions.[220] Nevertheless, the INS's new detention standards on medical care (limited only to SPCs and contract facilities) fail to include a policy for dental care.

In Berks County Prison in Pennsylvania, Moroccan asylum seeker Musbah Abdulateef said he had ten teeth pulled in less than a year because the INS would not approve the dental treatment he needed. Abdulateef spoke almost no English. When Human Rights Watch interviewed him, Abdulateef began to cry from confusion about the loss of so many teeth, saying he was very afraid about his continuing dental problems and explaining that it was difficult for him to eat.[221]

Because the INS has no uniform practice or policy for medical treatment, jail officials themselves are often confused about which services INS detainees should or should not receive. For example, the warden at DuPage County Jail told Human Rights Watch that dental care is available two times a week only to "finish something that is already started. No fillings, just extractions."[222] Later, when the corrections officer designated as the INS liaison was asked about dental care, he responded "Oh, I'm sure they give them fillings."[223] At Orleans Parish Prison the director of federal prisoners at the jail told Human Rights Watch that she didn't know whether or not detainees received dental fillings, stating dismissively, "I don't know...I'm not a dentist."[224]

At the Clark/Frederick/Winchester Adult Detention Center in Virginia, jail medical staff told Human Rights Watch, "[D]ental work is always denied by the INS. INS considers fillings and crowns elective and will only approveextractions."[225] Keo Chek, a twenty-five-year-old Cambodian man held at the facility, told Human Rights Watch that he saw the dentist on two occasions for dental problems, and the dentist told him that the INS would only approve extractions.[226] Chek refused to have his teeth pulled.

Mental Health Care

The stress of months or years in INS detention takes a severe emotional toll on INS detainees. The punitive environment of a jail, the detainees' frequent fear of local inmates, and the uncertainty of when, if ever, they will be released or deported is often too much to bear and has led to depression and suicide attempts. Asylum seekers are particularly vulnerable as detention often evokes memories of past persecution and anxiety over being returned to the countries from which they fled.

International standards for the treatment of prisoners call for medical staff who have knowledge of psychiatry and require that the effect of continued detention on the mental health of prisoners be considered.[227] ACA standards also contain several provisions for the diagnosis and mental health care needs of inmates.[228] Unfortunately, the new INS Detention Standards, applicable only to Service Processing Centers and contract facilities, make no mention of mental health care needs of any detainee, much less any reference to the special needs of asylum seekers.

Again and again, detainees expressed to Human Rights Watch the emotional anguish caused by incarceration. In Berks County Prison in Pennsylvania, Guy Mbenga-Mondundou, an asylum seeker from the former Zaire, explained to Human Rights Watch that he attempted suicide by hanging himself after he learned that his wife had miscarried while he was detained. "I have become depressed," wrote Chinese detainee Chen Sie En from Orleans Parish Prison in Louisiana. "I can't stand it any more. I don't care if I am sent back to China or released on bail. I just have to get out."[229] An Indian asylum seeker at Krome Service Processing Center, who had been detained more than two years at the time of our interview, echoed this sentiment: "I want deportation. No more jail-if I die, then I die. Fine."[230]

Yahia Meddah

One of the most disturbing and complicated cases Human Rights Watch discovered during our research was that of Yahia Meddah, an Algerian asylum seeker who, at the time of this writing, has been detained by the INS in four local jails, one INS Service Processing Center, and three mental hospitals during a two-year period. His prolonged detention and the punitive treatment received by jail officials has had an extremely negative effect on themental health of Meddah, who stated that he escaped Algeria under threat from the opposition forces after they had allegedly kidnapped his father and sister and killed many of his relatives.

Meddah was detained by the INS in August 1996 in a hospital room in West Virginia where he was recuperating after being assaulted by a relative of his wife. Despite the fact that he had not been accused of any crime, he was transported to York County Prison in Pennsylvania in shackles and immediately placed in an isolation room at the jail. For four consecutive months he was held in a disciplinary segregation room, subject to twenty-four-hour lockdown.

When Human Rights Watch met Meddah in February 1997, he had been transferred to Berks County Prison, also in Pennsylvania. At the time of our visit, Meddah was being held in the medical unit after a suicide attempt; he showed Human Rights Watch researchers approximately thirty deep cuts across his chest that he had inflicted on himself. Meddah accused the jail officials of cruel and indifferent treatment towards him and said that it was destroying his fragile psychological state. At the time of our visit, Meddah was serving more than fifty consecutive days for disciplinary infractions for such things as refusal to obey orders and creating disturbances. At one disciplinary hearing in January 1997, Meddah tried to defend himself by explaining: "I didn't have anyone to talk to me....I tried to talk to the correctional officer, and he refused. I was upset. The correctional officer refused to give me a mattress, and I was forced to sleep on the floor. Why is this happening to me? They also took my clothes from me. I need the psychiatrist to talk to me, please."[231] At the hearing, he was found guilty of refusal of orders, disturbance, and safety violations and given thirty-four days of disciplinary segregation.

A psychologist contracted by Berks County Prison who treated Meddah found that the abusive treatment he received during his detention in the jail was directly responsible for the psychological trauma he suffered. In a sworn statement, the psychologist wrote:

I was a psychologist at Berks County Prison where I met Meddah in (approximately) January 1997. Meddah at that time was polite, respectful and mentally stable....I would describe him as a high-spirited individual who was unable to fathom the conditions he was forced to live with.

One particular Nurse was verbally abusive and antagonistic and after one of many negative encounters with her, Meddah cut himself all over his chest with a razor and was taken to the disciplinary unit. He was stripped and tied down in four-point restraints in the disciplinary unit so he could not hurt himself. I went to his cell and he said to me, "My life is over. I want to just die now." I eventually got him back to the medical unit, but he wasn't the same. His dignity and self-respect were gone. He had no desire to try to go on. In my opinion, Meddah was mentally stable when I first saw him, and then was subjected to conditions that most normal people would succumb to (i.e. language barrier, different culture, accused of false ulterior motives, solitary confinement, little communication with another person, etc.) I notified the INS that Meddah was deteriorating and needed treatment and that he was not doing well in the conditions at the medical department, since he had never been in jail before and he was not the type of person who could handle it.

While Meddah did not initially have psychological problems, his incarceration experience, in general and specifically, has caused a mental trauma that may not be reversible at this point.[232]

In March 1997, the INS sent Meddah to a state mental hospital in New Jersey for ten days and then once again to York County Prison. In April 1997, he was transferred to Harrisburg State Hospital in Pennsylvania, where he remained until June. His treating psychiatrist wrote to his attorney saying that he "would strongly urge that Mr. Meddah not be returned to a prison setting as this environment appears to exacerbate his symptoms....In his case his anxiety disorder is manifested by recurrent distressing recollections of the traumatic events in his past which at times cause him to become agitated and acutely suicidal."[233]

Without knowing what was happening to him, Meddah was then suddenly transferred back to the mental hospital in New Jersey where he had previously been held. During his several-week stay, Meddah repeatedly told Human Rights Watch that he did not care if he lived or died and that hospital staff were indifferent to his situation and would not tell him what was happening to him.[234]

In July, Meddah's attorneys requested an Asylum Pre-Screening Officer program to secure his parole before his asylum hearing, since his attorneys did not feel he could adequately prepare for his hearing in the agitated state provoked by detention. Even though one of his attorneys offered to let Meddah live in her home, the INS never formally issued a decision on the APSO interview and denied Meddah a bond.

The INS also disregarded the exhortations by doctors treating Meddah that he not be returned to a prison-like setting, and returned him once again to York County Prison in July 1997. For four days after his arrival, Meddah was placed in four-point restraints. An intravenous feeding was forcibly inserted, which on one occasion he bit from his arm.

Believing that Meddah's poor mental state would undermine his ability to testify on his own behalf, Meddah's pro bono political asylum lawyer asked that his political asylum court hearing be postponed. The request was denied, and Meddah was forced to go forward with the hearing in September 1997.

Meddah's situation then took a turn for the worse. After thirteen months of being held in jails, subjected to four-point restraints, placed in disciplinary segregation and sent to two different mental hospitals, Meddah was denied asylum based on "secret evidence" submitted by the INS under authority of the 1996 anti-terrorism legislation.[235] Neither Meddah nor his attorneys were allowed to know or rebut the evidence used to deny him protection in the United States. His lawyers immediately appealed the decision, and Meddah was transferred once again, this time to Manatee County Jail in Florida, and eventually to Krome Service Processing Center in Miami.

Not surprisingly, Meddah's mental health continued to deteriorate after the denial of his asylum claim, the new transfers, and his continued incarceration. In Krome Service Processing Center in Miami, Meddah began a hunger strike desperately hoping that "the INS will do something about my situation."[236] When the INS did not respond, Meddah attempted suicide on March 30, 1998 by ingesting cleaning fluid. The INS then sent him to a local hospital, where Meddah claims he was shackled to the bed for four days and four nights. "My feet began to bleed," he told Human Rights Watch.[237]

After intervention by his lawyers and Human Rights Watch, the INS transferred Meddah to a mental hospital in Miami, where he remains at the time of this writing. The treating psychiatrist there wrote yet another appeal to the INS, which continues to exhibit indifference to the seriousness of Meddah's mental illness. In a letter to the INS District Director in Miami, the doctor wrote: "Mr. Meddah is presently at the Windmoor Psychiatric Hospital following a serious suicide attempt by ingestion of a corrosive fluid. Although his mental status has improved in that his affect and mood are generally brighter, he suffers from a Post-Traumatic Stress disorder and he continues to express tremendous frustration and anxiety with regards to his current INS situation. It is my impression that continuing prolonged detention will increase the likelihood of potential self destructive behavior."[238]

The INS still refuses to respond appropriately to the ample evidence of the destructive effect detention has had on Meddah. After two years of incarceration, Meddah is a desperate man. "I don't care anymore," he told Human Rights Watch, "I am tired. If I die in Algeria, I die. You are killed only once. It is better than being in prison, and not knowing if you will ever get out."[239]

Legal Representation

It's easier to visit my clients on death row than it is to visit an INS detainee at Orleans Parish Prison.

Carol Kolnichak, pro bono political asylum attorney, New Orleans, Louisiana[240]

Basic notions of due process dictate that immigrants have a right to legal counsel, a right codified in U.S. immigration law.[241] Although immigration detainees are not guaranteed legal counsel at the expense of thegovernment, U.S. law does require that detainees be given a reasonable opportunity to secure representation and requires that there be no undue interference with their access to attorneys.[242]

Nonetheless, access to counsel is usually seriously compromised when immigrants are detained by the INS, especially in local jails. Incarceration far from friends and family who can locate and pay for lawyers, frequent transfers from facility to facility, restrictive visitation policies and limited telephone access create significant obstacles to adequate representation. The remote location of local jails - sometimes hundreds of miles away from an urban center - permits only infrequent visits by attorneys of record for interviews and case preparation.[243]

Statistics maintained by the immigration court of the INS, the Executive Office of Immigration Review (EOIR), reveal that only about 11 percent of all detained immigrants are represented by legal counsel in immigration court, compared to almost 60 percent of immigrants who are not detained.[244] The statistics also indicate that legal representation makes it more likely that an individual will avoid being deported.[245]

During 1997, the American Bar Association (ABA) undertook a collaborative effort with the INS to create four detention standards regarding detainees' access to legal representation: visitation policies; access to legal materials; group legal rights presentations; and detainee telephone access. A year later, in January 1998, the INS published a final version of the standards. Although the standards represent a welcome and substantial improvement toward guaranteeing detainees' rights to legal counsel, their major flaw is their inapplicability to local jails, rendering them essentially meaningless to more than half of all people in INS detention and all of the individual cases described in this report.

Communication with Legal Counsel

Two very basic requirements for adequate legal representation are not being met when INS detainees are held in local jails: the ability to make initial contact with attorneys for possible representation and the ability to maintain ongoing communication once an attorney is retained.

The first obstacle is the difficulty of simply obtaining a list of legal service providers who will represent immigrants at little or no cost. Immigrants in detention are likely to be indigent, especially newly arrived asylum seekers and immigrants released from correctional facilities to INS custody who may have not been employed for several years. Since the INS does not consider the location of family and friends when making decisions about where to detain people, most detainees rely on the list of free legal service providers that each INS district should provide.

Internal INS procedures require that the list of legal service providers be given to detainees at the same time the Notice to Appear is issued (usually upon their initial detention by the U.S. Border Patrol or when transferred into INS custody).[246] But Human Rights Watch found that this rarely happened in the districts we visited. Many detainees only received a list of legal service providers after they were brought to immigration court - in other words, when it was too late to make a difference.

When detained immigrants are forced to wait until their first appearance in immigration court to receive the list, many of the benefits of the right to counsel have already been compromised. If detainees have not been able to consult with a legal representative before their first hearing, they may have no idea about what relief from deportation is available to them; as a result they run the risk of accepting deportation when they in fact, have other options. Such ignorance of legal rights can have deadly consequences in the cases of refugees fearing persecution who may not know that they have a right to apply for asylum.

At the Dallas County Jail, Human Rights Watch interviewed a Mexican detainee, JosÉ Reyes, who had been held for four months and had yet to appear before an immigration judge.[247] After living illegally in the United States since 1990, Reyes did not believe that he was eligible for any immigration relief and wanted to accept deportation to Mexico, a process that normally takes days after appearing before a judge. Reyes wanted to contact a lawyer, but since he had not been to court, he was never given a list of legal service providers. As the weeks went by, Reyes said he wrote to the INS several times about his case but never received a reply. He told Human Rights Watch that he did not even have an immigration case file number that he could use to check the status of his case.

Once a detainee actually receives a list of legal service providers, the obstacles to legal assistance are still not removed. Virtually all of the advocates with whom we spoke told us that the lists provided by the INS featured outdated, incorrect, or useless information. Also, telephone access at jails is usually limited to collect national calls only.[248] International collect calls are rarely allowed, which may prejudice asylum seekers who need documentation from their countries of origin. Restrictive telephone policies make it hard for detainees to know what is happening to them procedurally. For example, an INS detainee reported that at Dallas County Jail in Texas, the INS's toll-free number that provides information on court dates and immigration case status is blocked on jail telephones.[249]

Written correspondence can also be difficult. When Human Rights Watch wrote to detainees in Orleans Parish Prison responding to their requests for assistance, many of the letters were returned with "unable to locate" written on the envelopes.

Even if legal mail does get through, its contents may be confiscated by jail officials. For example, during an interview at Orleans Parish Prison in June 1998, an INS detainee gave Human Rights Watch researchers original complaint forms that he and other INS detainees had filed with jail officials. The papers also contained a handwritten list of names of INS detainees and local inmates who claimed to have suffered mistreatment by the deputies at the jail. Human Rights Watch returned the original documents to the detainee in an envelope marked "legal mail." The detainee never received the documents (which contained papers not copied and therefore unreplaceable) nor were they returned to Human Rights Watch.

Emanuel Obajuluwa, an unrepresented Nigerian asylum seeker detained in Dallas County Jail, told Human Rights Watch that none of the legal assistance organizations on the list the INS had provided to him would accept his collect telephone calls, so the only way he could communicate with the organizations in order to find a lawyer was by writing a letter.[250] But, he stated, he did not have any envelopes and stamps to write a letter since the jail would only provide two sheets of paper and one envelope once or twice a month. In early February 1998, Human Rights Watch sent Obajuluwa a package marked as "legal mail" containing copies of Human Rights Watch reports on Nigeria and blank writing paper and white envelopes. In a letter dated February 22, Obajuluwa sent Human Rights Watch an original receipt (no photocopiers were available) that said, "[T]he above correspondence has been denied you access while incarcerated in the Dallas County Jail and in accordance with the Dallas County Sheriff's Department's rules regarding inmate correspondence."[251] Although the human rights reports were given to Obajuluwa, the writing paper and envelopes he needed to write letters in search of a lawyer were confiscated by the jail.

Frequent transfers also seriously impede detainees' and attorneys' efforts to maintain contact. Attorneys are not notified of transfers. For example, Abdallah Ali Mohammed, a Somali asylum seeker, found free legal counsel after seventeen months of detention in INS's Krome facility in Miami only to be transferred to Manatee County Jail in Bradenton, Florida, more than eight hour's drive away.[252] Mohammed called Human Rights Watch collect because the telephones at Manatee County Jail would not allow him to make a toll-free call to his attorney, who he feared did not know that he had been transferred.[253]

Visitation by Legal Representatives

In Louisiana, lawyers and law students representing immigrants in local parish jails housing INS detainees have encountered many difficulties obtaining access to detainees.[254] Attorney Carol Kolnichak was refused entrance to the Orleans Parish Prison in November 1996 when she attempted to visit her client along with representatives of Amnesty International. Later that day, when Ms. Kolnichak returned to interview her client alone, she was flatly refused.[255]

In January 1998, attorney Rebecca Feldman was barred by the superintendent of Hillsborough County Detention Center in New Hampshire from giving general legal advice to detainees who asked to see her.[256] Previously, Feldman had visited the facility every Monday to counsel groups of detainees who signed up to speak with her.[257] The superintendent accused her of misrepresenting her purpose and inciting unrest among the immigration detainees and disallowed the legal visits, permitting her only to visit clients and other specifically named detainees.[258] The legal rights presentations were often the only legal advice unrepresented detainees received.

Legal Materials/Law Library

Because the vast majority of individuals detained by the INS are unrepresented, access to legal materials in detention facilities is a critical element in defending themselves in immigration court. For asylum seekers, it can be a matter of life or death. ACA standards require that inmates have access to legal materials when there is not adequate free legal assistance to help them with criminal, civil, and administrative matters.[259]

The local jails visited by Human Rights Watch usually had minimal and/or outdated immigration law materials. Since the INS does not require local jails to maintain law libraries before entering into INS contracts, have little reason to incur the expense of establishing an updated set of materials useful to immigration detainees.

When Human Rights Watch asked jail administrators whether their jail had immigration materials, they almost always responded affirmatively. Yet when Human Rights Watch researchers examined the actual materials available, we found few, if any, current or useful immigration law books. Many jails possessed a copy of the U.S. Code where statutory federal law is found. These books are of little help without auxiliary immigration resource materials, since immigration law is famously complicated and technical, and statutes mean little without an updated explanation of their interpretation by the courts.

The INS detention standards defining which legal materials should be available at INS contracted facilities and service processing centers contain an excellent list of immigration law resources. The cost for the entire set of materials is estimated at $1,500, but since the standards do not apply to local jails, none of the facilities we visited maintained these essential materials.

Below are examples of some of the shortcomings in law libraries in jails visited by Human Rights Watch:

-At Pointe Coupee Parish Jail in Louisiana, the library had one copy of the relevant U.S. Code section on immigration with a 1996 update. No immigration regulations were available.

-At Manatee County Jail in Florida, no immigration law materials existed in either of the two facilities holding INS detainees. A jail supervisor assured Human Rights Watch that he had asked the INS fora copy of a law book for the special use of INS detainees; the book turned out to be Black's Law Dictionary.[260]

-At Berks County Prison in Pennsylvania, the INS officer stationed at the jail described to Human Rights Watch how well-stocked the law library was, claiming that copies of the new 1996 immigration law were available.[261] When Human Rights Watch toured the jail, we found one copy of the relevant U.S. Code that had not been updated since 1991 and a Federal Code Reporter from 1987. No immigration regulations were available, and there was no copy of the 1996 immigration law.

-At DuPage County Jail in Illinois, the library was large with ample seating and even a typewriter. But the only immigration law material available was an old copy of the relevant U.S. Code with no updates.

-At Euless City Jail in Texas, there was no library at all, much less any specialized immigration law materials.

-At Vermilion Parish Jail in Louisiana, the large library contained only one copy of the U.S. Code that had not been updated since 1991.

Use of Disciplinary Sanctions

On July 2, 1998, they sent me to segregation without any disciplinary hearing or any inquiry or investigation and they gave me forty days in segregation. I don't know what to do - they make our lives miserable in here and we cannot say anything because I see they beat people. Even right now, I'm writing this letter, but I'm scared if they find out they are going to give me more hard time.

-INS detainee in Orleans Parish Prison, Louisiana[262]

We don't treat INS detainees any differently than any we do the regular inmates.

-Sheriff Charles C. Foti, Criminal Sheriff of New Orleans Parish, New Orleans, Louisiana[263]

Most jail administrators and wardens interviewed by Human Rights Watch sought to prove that INS detainees were not discriminated against and were treated just like any other inmates at the jail. For INS detainees, "equal treatment" means that they are thrust into a criminal environment where rules and regulations must be followed regardless of whether inmate handbooks, if available, are understood. "Equal treatment" means that an asylum seeker may find himself or herself sharing living space with a convicted felon. For INS detainees who have previous criminal convictions, "equal treatment" means that although they have completed their criminal sentences, they are still serving time.

The punitive and rehabilitative environment of a jail invites discipline. Once in this criminal atmosphere, Human Rights Watch found that INS detainees were often disciplined by jail officials.[264] Disciplinary sanctions were frequently arbitrary or excessive, imposed without proper hearings, or given for infractions of jail rules that detainees could not understand because of language barriers.

International standards contemplate the use of disciplinary sanctions or restraints in a criminal context, when they are governed by specific rules and limited by principles of humane treatment.[265] ACA guidelines contain a number of standards requiring facilities to establish rules of conduct and sanctions, and procedures for violations that are defined in writing and communicated to all inmates.[266]

The INS does not require that local jails inform it when detainees are the subject of disciplinary sanctions, although some INS districts informally ask that jails report any serious incidents involving INS detainees. Consequently, the INS is seldom aware of the kind of treatment received by the detainees who are still legally in the agency's custody.

Bernard Igbedion, a detainee from Nigeria, was placed in disciplinary segregation at Beauregard Parish Jail in Louisiana in April 1997 for covering himself with a blanket during the day when he felt ill and cold. At his disciplinary hearing he was found guilty of violating jail rules and charged with "unsanitary practices." The written report by the charging correctional officer states: "I observed Inmate Igbedion in bed under his blanket....I had told him earlier about the rule and policy. Inmate stated he was cold and felt sick. I told him to put in a request if [he] was sick but he had to obey the rules."[267] For covering himself with a blanket when he felt ill, Igbedion was given five days of segregation.

In Denton County Jail in Texas, Mario Edgardo GarcÍa, a native Spanish speaker with minimal English ability, tried to express to an officer that he felt ill and could not perform the mandatory daily cleaning routine of the jail. According to jail officials, "[T]he guy didn't understand" and could not express himself to the officer who was ordering him to work.[268] A disciplinary report against GarcÍa was filed, and he was ordered confined to his bed fortwenty-four hours as punishment. With no one to translate, GarcÍa did not understand the sanctions or what was expected of him and did not remain in his bed. For violating the terms of his punishment, he was then sentenced to an additional two days in disciplinary segregation. Eventually, he was given a disciplinary hearing on charges of "malingering" and, with the translation help of the English teacher at the jail, he was found not guilty.[269] He had already served the disciplinary sanction by the time of the hearing.

In Wharton County Jail in Texas, detainees reported food deprivation as a form of discipline. Vietnamese detainee Than T. Ta explained to Human Rights Watch:

We have to pick up our breakfast in the hallway at 7:30 exactly, and jail rules say we have to be fully clothed. One day a guy had the top button of his jumpsuit unbuttoned, so the jail officer wouldn't let any of us eat breakfast. Another guy protested to the officer, then me and a bunch of people got put in segregation for three and four days. When I had my hearing they tore up my case and put it in the trash.[270]

Almost all jails have an established disciplinary procedure in their jail rules, but there is no guarantee that the official procedure will be followed. "You get bad treatment if you complain," a Nigerian detainee in DuPage County Jail in Illinois told Human Rights Watch. "[D]etainees always lose their disciplinary hearings. At the disciplinary hearing, no matter what you say, even if [you are] right, they will at the end rule in favor of their fellow officer."[271]

Some detainees in local jails reported that they were punished without a chance to defend themselves. For example, in Berks County Prison in Pennsylvania, Guy Mbenga-Mondundou, an asylum seeker from the former Zaire, was placed in disciplinary segregation for eight days without a hearing in January 1997 after the INS tried to deport him but was prevented by judicial order. "For the first three days I was handcuffed," he told Human Rights Watch. "[T]hey only gave me a mattress at night. Between 6:00 a.m. and 9:30 p.m., I had to lay on a cold stone floor in a room with no windows."[272]

Another asylum seeker held at Berks County Prison, Moses Pessima, a university student from Sierra Leone, told Human Rights Watch that he was twice put in disciplinary segregation for seven days, each time without a hearing.[273] On the second occasion, he claimed an article he wrote criticizing the jail was confiscated and he was then charged with using the wrong kind of envelope. After seven days of segregation, he was finally given a hearing where the charges were dismissed.

Soeung Chhunn, a Cambodian detainee in Orleans Parish Prison in Louisiana, claims he was beaten by jail deputies and placed in disciplinary segregation with local inmates for violating jail rules by playing a board game in the cell of another detainee. In the jail building where Chhunn was housed, detainees are allowed out of their two-person cells for two hours and then required to return for another two hour period. This schedule is in place between 12 and 6 p.m.- at other times the detainee are locked in their cells. Chhunn told Human Rights Watch that on April 27, 1998, he remained in his cell playing a game with a fellow detainee during a two-hour period when he should have been locked in his own cell. Chhunn explained:

Later that day, an officer called me to sign a piece of paper. He took me to a small room, like a lunch room where inmates aren't usually brought. He punched me hard in the stomach in front of another jail deputy. I couldn't breathe for five minutes. He said to me, "Shut the fuck up. I don't want to hear you talk." I know the deputy's name, but he only wears a T-shirt with a star on it, he never wears a nametag or a uniform. The other deputy saw what happened and told me he would be a witness.

Then I was brought to a segregation room and left there alone for a couple of days, then I was put with a state inmate. They put us in a small room with a light on twenty-four hours a day. We were allowed ten minutes a day to shower, once a week to the yard and not allowed to make phone calls.

I was in the hole [segregation] for two weeks, and so I asked the officials when I would have a hearing. He told me the hearing took place without me and that I had been sentenced to 150 days. I appealed the decision and they let me out after twenty-eight days.[274]

Two other INS detainees at Orleans Parish Prison told Human Rights Watch rough treatment by this same deputy. Chinese detainee Min Phin claimed the deputy handcuffed him after Min Phin had an argument with another inmate. "After the handcuffs were on," he wrote, "...he pushed me toward the door. He brought me to a small room and slapped me three times on the face and one time on the back of the head. He also choked me and pushed my face against the wall."[275] A second detainee from Orleans Parish Prison described how he witnessed the same deputy beat another detainee over and over with a broomstick. Afraid the conversation was being monitored, the detainee passed a note to Human Rights Watch researchers with the name of the deputy written down.[276]

In York County Prison in Pennsylvania, several INS detainees claimed that they were placed in disciplinary segregation for five days without a hearing after a criminal inmate started a fire in the dorm. According to the detainees, who were housed in a living area with county criminal inmates, a special security unit entered the cell area with electric shields and locked everyone in their cells, including three INS detainees. Cuban detainee LuÍs Cortez told Human Rights Watch: "We were locked down twenty-four-hours a day. We were not allowed to bathe until the fifth day, and we weren't given anything to eat except peanut butter sandwiches. There was a toilet in the cell, but the guards took the toilet paper when they searched the room."[277] In the same incident, Luis Dutton from Panama was locked in a cell with a criminal inmate who threatened to hurt him if he used the bathroom while they were locked down together. "After sixteen meals of peanut butter sandwiches, I felt faint, so they took me to the nurse."[278] After seven days total, the detainees were let out, but Cortez claimed none of those subject to the lockdown was ever given a disciplinary hearing.

Inmate Grievance Procedures

International standards for the treatment of prisoners and ACA standards provide that imprisoned individuals have a right to lodge complaints against jail officials those ultimately responsible for their care when they feel they have not received the appropriate treatment.[279]

Many INS detainees told Human Rights Watch that filing a grievance with the jail officials was at best a futile effort, and at worst an invitation to retaliation by jail correctional officers. Jail wardens and chief administrators interviewed by Human Rights Watch indicated that they never received many complaints from INS detainees and that those they did receive usually concerned minor things regarding food or haircuts.

At Orleans Parish Prison in Louisiana, one INS detainee told Human Rights Watch that approximately eighteen INS detainees filed a grievance about a deputy who was often verbally abusive towards them. None of the eighteen ever received a response. The same detainee wrote two grievances claiming that he was having problems with two particular deputies, whom he named. One grievance was never answered, and the other was dismissed because there was no evidence against the officer. "Now things are worse than ever with this deputy," he said."[280]

"The officers won't help you," a Jamaican woman detained at Liberty County Jail in Texas told Human Rights Watch. "I put in requests and get no answer. Last night I got locked down in the area where the toilet didn't work. I told the guard during the night that I had to go to the bathroom and that the toilet didn't work. They told me to hold it until the morning...I had to go to the bathroom in the shower."[281]

Notice of Rights/Inmate Handbooks

In local jails, INS detainees suddenly find themselves subjected to rules and regulations promulgated to control violent or uncooperative criminals. Without a clear understanding of these rules, INS detainees may find themselves in disciplinary proceedings that can lead to severe punishment.

International principles make clear that even when detainees are in the care and custody of the local wardens and jail staff, the INS still remains the "authority responsible for the arrest, detention, or imprisonment" and as such, it retains the duty to provide detainees promptly with "information on and an explanation of [their] rights and how to avail [themselves] of such rights."[282] In addition, when the detainee does not adequately understand English, he or she is entitled to receive the information in a language he or she is able to understand.[283]

Human Rights Watch believes that international standards obligate the INS to provide detainees with notice of their rights - not only their rights in immigration proceedings, but also their rights and obligations particular to the facility in which they are detained. In practice, the INS relies on local jail authorities to explain detainees' rights and responsibilities, but imposes no contractual obligation on the jails to do so and exercises no oversight to ensure that it is actually done.

The result is that in some local jails, INS detainees reported that they were never given a copy of the rules and regulations. Others reported that they received a copy in English, but they were unable to understand it. In some instances detainees were asked to sign acknowledgments that they have understood the rules, when in fact they did not. Than T. Ta, from Vietnam, wrote to Human Rights Watch that he been detained in the Wharton County Jail in Texas for nine months before he saw a copy of the rights handbook.[284]

The warden of Berks County Prison in Pennsylvania told Human Rights Watch that inmate handbooks were available in each unit but were not handed out to detainees upon arrival for "budget reasons."[285] Yet the same warden admitted that only between $.60 and $.75 of each dollar paid by the INS is spent on care for detainees; the rest is profit.

Physical Mistreatment

I heard the metal pipe drop and I thought, my god, they're going to kill me.

-Cuban detainee Enrique Rodriguez Posada describing the beating he received while held by the INS at Tensas Parish Detention Center in St. Joseph, Louisiana[286]

Human Rights Watch learned of many troubling incidents of abuse of INS detainees by jail officials. Threats, intimidation, and physical mistreatment exceeded acceptable discipline and violated detainees' rights to humane treatment.

Pike County Jail, Pennsylvania

INS detainees in Pike County Jail in Pennsylvania first contacted Human Rights Watch in November 1996 with serious complaints of excessive disciplinary sanctions and mistreatment. One detainee, RamÓn Medina, told Human Rights Watch that he had been placed in solitary confinement in September 1996 after telling correctional officers that he was going to file a complaint against them.[287] According to Medina, he was brought to the solitary confinement cell with his hands and feet handcuffed and was hit and kicked in the head and arms by four correctional officers at the jail. Medina claims that one of the officers, Brian Bain, took off his uniform and told Medina, "[W]e can do this as men," before proceeding to beat him with the three other officers present. "I was hit in the eye and head and am in a lot of pain. I can't sleep at night," he told Human Rights Watch. "I also have a bone sticking out of my left hand."[288] In the solitary confinement cell, Medina said he was kept naked without a mattress, using toilet paper to keep warm.

Medina filed a complaint against Officer Bain, who was subsequently dismissed from the jail. According to a Pike County Jail official, Officer Bain was dismissed because of "burnout" after jail administration officials twice ordered him to undergo counseling.[289] Because of the seriousness of Medina's allegations, Human Rights Watch contacted the INS in April 1997 to alert the agency about his situation. An INS official called Human Rights Watch by telephone to say that the agency would investigate Medina's complaints; she told us, however, that Medina's injuries were not due to mistreatment but were caused by his hurling himself against the walls because he was frustrated by his long detention since he was Cuban (in fact, Medina is from the Dominican Republic).[290] When asked about Officer Bain's alleged participation in beating Medina, and his subsequent dismissal, the INS official simply stated that it was no longer an issue since Bain had been dismissed, adding that it was not "any of the INS's business" whether or not Bain might be subjected to criminal prosecution or even whether the county prosecutor knew of the incident.[291]

After Human Rights Watch alerted them about the mistreatment, the INS did send a representative to Pike County Jail to investigate the allegations, but detainees who were interviewed claimed that the INS representative threatened them at the beginning of the interviews, warning them that if they were lying, the detainees themselves would be prosecuted.[292] In the meantime, at the end of April Medina was again placed in solitary confinement until June 1997.

Tensas Parish Detention Center, Louisiana

Enrique Rodriguez Posada was among several INS detainees being held at Tensas Parish Detention Center on October 31, 1996, when an argument broke out involving both INS detainees and local inmates. According to Rodriguez, correctional officers at the jail ordered him and five other Cuban detainees to strip naked and brought them to a laundry room. In the room, Rodriguez says all six men were beaten, one at a time, with what appeared to Rodriguez to be a pipe covered with tape. Rodriguez claims that three correctional officers, one of whom he identified as Capt. Benjamin Britton, beat him in front of the jail's warden, injuring his head and hand. According to Rodriguez:

I was crouching down to block my head. Another guy had his thumb broken. The beating lasted three or four minutes. Afterwards, they put all of us and one American in lockdown while we were still naked. The isolation room they put us in had two beds for six people, and for the first twenty-four hours we had no blanket or mattress. No medical attention was given to any of us, and it was not until seven days later that they brought us to medical services because there were no marks or bruises that looked so bad at that time.[293]

According to Tensas Parish Detention Center medical records, Rodriguez was examined on November 6, 1996 while in lockdown.[294] The records state that Rodriguez complained that his right wrist and shoulder hurt and that they had been injured during the October 31 incident. Rodriguez was referred the next to the emergency room at Conway Medical Center, where his injured right arm was put in a sling.[295]

After thirteen days in isolation, Rodriguez was given a disciplinary hearing where he was found not guilty. In mid-November, he was transferred to Avoyelles Parish Prison, and by December he had been transferred to Vermilion Parish Prison, where he continued to complain of pain in his left eye, headaches and blurred vision that stemmed from the beating. According to medical records, the chief of the Vermilion Parish Prison ordered Rodriguez to receive a special eye exam during which doctors noted blunt trauma and damage to the iris of his eye.[296]

INS District Director for New Orleans John Caplinger told Human Rights Watch that the INS learned of the October 31 incident during a routine visit to the Tensas Parish Detention Center, after which investigations by the FBI, the Office of Inspector General of the Department of Justice (OIG) and the INS's Office of Internal Audit (OIA) were initiated.[297] Rodriguez confirmed to Human Rights Watch that officials from the INS took pictures of his bruises and other injuries and that a representative of the FBI had come to talk to some of the victims.

In February 1998, three Tensas Parish deputies pleaded guilty to two counts of civil rights violations of county inmates also involved in the October 31, 1996 incident.[298] One of the three who entered a guilty plea was Benjamin Britton, the same deputy Rodriguez identified to Human Rights Watch as having beaten him. The sheriff of Tensas Parish, Jeff Britt, was also indicted on separate charges of beating a local inmate at the Tensas Parish Detention Center with a blackjack in January 1997 and lying to the FBI.[299] Sheriff Britt's trial ended in a hung jury in July.[300]

Although it appears that the abusive jail deputies in this case were brought to justice, the incident provides one more example of the risk inherent in the INS's policy of using jails to house its detainees and relying on local jails to police themselves. It is a difficult enough task for the INS to screen and monitor its own thousands of agents, over whom it has direct control. When detainees are farmed out to local law enforcement agencies whose officers the INS has had no involvement in hiring, training or monitoring, they are placed in an unnecessarily vulnerable situation.

Avoyelles Parish Prison, Marksville, Louisiana

During our research, Human Rights Watch received many telephone calls and letters from INS detainees in Avoyelles Parish Prison in rural Louisiana alleging poor physical conditions and mistreatment by jail officials. When Human Rights Watch tried to interview detainees at the jail in March 1997, we were denied both a tour of the facility and direct, private with detainees.

Then INS district director for New Orleans, John Caplinger, told Human Rights Watch that "about five or six years ago a guard or two [at Avoyelles Parish Prison] got indicted or convicted" after which the jail went through a period of probation with the INS.[301] The district director told Human Rights Watch, "Now the INS tries to use Avoyelles only for receiving and processing detainees." Yet Human Rights Watch interviewed or received correspondence from more than a dozen detainees who had been held at Avoyelles Parish Prison for many months.

Jawaid Anwar, from Pakistan, told Human Rights Watch about an incident of mistreatment at Avoyelles Parish Prison.[302] At the time the incident took place, Anwar had been detained at the facility for over fifteen months.

According to Anwar and other detainees, on the night of October 19, 1997, there was a disturbance involving a fire in a part of the jail called the A dorm. At the time, Anwar was being held in the lockdown area of the jail, where he was allowed out of his cell only one hour a day.

On October 20, 1997 about 6:00 in the morning a correctional officer pulled me from my cell and threw me into the hallway. In the day room, several officers began to beat me: two or three hit me in the face with their fists, and another kicked me in the hip. Then they dragged me to a holding cell about six feet by ten feet wide and put me in there with about fourteen other people. My head was spinning and my face was swelling. I was in that cell for about eight or nine hours and kept asking for medical attention, but no one would pay attention to me. I have high blood pressure and a history of stroke and had surgery before on my back and have a big hole in my back. Finally an officer came by and saw me in the holding cell and asked, "Why is that guy in there? He had nothing to do with it." Several hours later, they came and put me back in "lockdown." When they pulled me out of my cell,they also took my legal papers, my clothes and personal belongings and threw them on the floor. I never saw any of these belongings again; I guess they threw them out.[303]

Anwar was transferred to Beauregard Parish Jail in DeRidder, Louisiana on October 30, 1997; on November 18 he was transferred again to St. Martin Parish Correctional Center in St. Martinville, Louisiana, where he remains. The INS told Anwar that they were investigating the incident, but he has yet to hear of any action taken against the officers involved.

Anthony Deveaux, an INS detainee from the Bahamas, was transferred to Avoyelles Parish Prison from INS detention in Miami on May 17, 1997. Since he arrived at the jail, he has been in a restricted area where fifteen people are held - INS detainees and local inmates alike. Since there are not enough cells for all fifteen people, Deveaux and four other men sleep on cots in the common living area. Deveaux, who has only one eye and wears special sunglasses, described the following incident that took place on May 4, 1998.

I was standing in the area with fifteen other INS detainees and criminal inmates looking out the window. One of the jail sergeants told me I should not look outside. I told them I didn't see why I couldn't look outside. Sergeant Mark came in my cell and told me to step outside. Then he grabbed my head and slammed my face against the wall, breaking my shades. When I told then that they would have to buy me new ones because these cost me $350, they sprayed a whole can of mace on my face. I couldn't breathe.

The captain came out with a gas mask on his face and asked me to come to the property room to talk. He asked me if I would make some kind of deal with him - maybe they could glue the shades if I didn't say anything about what happened. I refused to accept his deal, so I was taken to a holding cell in the front of the jail near the booking cell.

The guards shackled my two hands together and my two feet together and chained both my hands and feet to a metal bars on the floor - I couldn't sit or stand up, only lay on my left side.

For five days I was left like this, from Monday to Friday. I wasn't given any food or water for five days. One time they put a tray of food near the door, but I couldn't get up to reach it. There was a toilet in the room, but I couldn't get up or even pull down my pants so I had to urinate on myself. On Friday, I begged them to let me out and told them I would pay for my own shades. Then they let me out.[304]

Length of Detention

In India they have a law called TADA [Terrorist and Disruptive Activities Act]. It allows for arbitrary detention, they arrest you and hold you for six months without a charge or court. The United States said it is a bad law. But in the United States, they hold us for years. It is worse.

-Amar Singh, Sikh Indian asylum seeker detained by the INS for three years in two local jails and INS-run detention centers.[305]

Immigrants in INS detention may find themselves behind bars for years, essentially "serving time" in local jails with no known end to their sentences and little likelihood for parole. No exception is made for most asylum seekers, about whom the INS does not even keep accurate statistics or know their numbers in detention.[306] Human Rights Watch found that many detainees, including asylum seekers, are imprisoned for exceedingly long periods of time, even for as long as three or four years. In Vermilion Parish Jail in Louisiana, the chief of the jail told Human Rights Watch that the average length of detention for INS detainees in his facility was fourteen to sixteen months.[307] In Chicago, an INS supervisor for detention stated that in a six-month period preceding the interview, all the asylum seekers in the Chicago District had been granted asylum, but only after having been held in local jails for seven and eight months.[308]

The length of time asylum seekers are detained is alarming. Although international standards state that as a general rule asylum seekers should not be detained. Human Rights Watch found asylum seekers held in detention for years, transferred from jail to jail and from state to state, while trying to prove their claims for political asylum. For asylum seekers in local jails, waiting in detention can be psychologically devastating. Post traumatic stress disorders, lack of language skills, ignorance of legal rights, lack of access to lawyers, fear of government authorities, and a criminal environment where they may be housed with convicted criminals all combine to exact special suffering on asylum seekers. While in detention there is little to do but sit and worry if you will ever get out of jail or if you will be deported back to a situation you fear.

Long periods of detention affect the mental health of detainees and increase the likelihood of mistreatment and abuse. Harpal Singh, an Indian Sikh, has been in INS detention since March 1995. According to Mr. Singh, he left India after being arrested and tortured for being an active member of his religious sect. "I was threatened many times," he wrote, "so I was afraid to live in my county, then I decided to come to America to save my life."[309] When he arrived at the airport in New York, he was arrested and has been behind bars ever since.

In our site visits, Human Rights Watch interviewed the following asylum seekers who had been in criminal jails for many months, even years at the time we met them. Some of the individuals named below may now have been released, some may have been deported; many others have now been detained for even longer periods.

-Liu Jun Ying, from China, detained one year, ten months.

-F.A., from Nigeria, detained one year, five months.

-Mohammed Gado, from Ghana, detained two years, three months (subsequently released).

-Abdallah Ali Mohammed, from Somalia, detained two years, one month.

-Rajinder Singh, from India, detained one year, ten months.

-Yahia Meddah, from Algeria, two years.

International law prohibits arbitrary detention and requires that detained persons be brought promptly before a judge or other judicial authority (see Legal Section). This requirement extends to all held in detention, whether they are criminally accused or administratively detained.[310] Human Rights Watch was surprised to find a number of INS detainees held for considerable lengths of time before being brought to immigration court. Some of the detainees interviewed by Human Rights Watch wanted only to be deported back to their home countries.

When detainees wait more than a year to see an immigration judge, it is hard to imagine that such detention is not arbitrary. For example, a Nigerian detainee in Virginia Beach Correctional Facility in Virginia told Human Rights Watch that he had been detained by the INS for nineteen months and had not ever been to a hearing in immigration court . "I want you to know," he wrote, " that I am not trying to fight deportation, on the contrary, am trying to be deported ...so that I can be reunited with the family that I have been away from."[311] Lost in a local jail, with no money to pay for an attorney, and ignored or forgotten by the INS, he has no idea when he might ever get his wish.

Abdallah Ali Mohammed from Somalia contacted Human Rights Watch after he had been waiting for nine months to be deported; he had spent twenty-five months in INS detention, where he was denied asylum and did not appeal. "My mind is absent," he told Human Rights Watch. "I am very, very tired."[312]

Frequent Transfers

INS detainees are frequently transferred from facility to facility and state to state. Decisions about when and where detainees are transferred are made at the district level and informed by such things as court appearances, immigration case status and availability and cost of bed space, but the INS rarely considers the location of families, friends, or legal counsel. In many cases, legal counsel are not even notified when their clients are transferred.

International standards and ACA guidelines provide that the detainee should be kept in a place of detention that is, if possible, near his or her usual place of residence.[313] Such standards exist to allow detainees to receive the practical and emotional support they need. In some cases, a detainee is the financial provider in a family, and whenhe or she is detained, the family has trouble surviving. Most families could never afford the plane fare or general travel costs associated with visiting a detained relative in another state. Frequent transfers also mean that families do not know where their loved ones are since the INS does not notify families of transfers.

The family of Cuban detainee LuÍs Cortez spent more than $2,000 traveling from California to Pennsylvania to see him, only to end up visiting six jails during a ten day period to find him.[314] No one at any of the Pennsylvania jails could tell the Cortez family where to find their relative. Finally, they found him at Snyder County Jail in Pennsylvania and were allowed one two-hour non-contact visit before they had to return home.

Human Rights Watch interviewed dozens of detainees transferred at a dizzying rate from jail to jail and state to state. Below are some examples of the transfer histories of the INS detainees interviewed by Human Rights Watch:

Hardeep Singh, from India

8/94-12/94 Wackenhut, Queens, New York

12/94-2/95 Esmor contract facility, New Jersey

2/95-4/95 Lehigh County Jail, Pennsylvania

4/95-Back to Esmor

4/95-8/95 Back to Lehigh County Jail

8/95-Wicomoco County Jail, Maryland

8/95-9/95 Dorchester County Jail, Maryland

9/95-Back to Wicomoco County Jail

9/95-? Orleans Parish Prison, Louisiana

Abelino Barroso Gonzales, from Cuba

8/8/96 Krome Service Processing Center, Florida

8/10/96-11/96 Stewart County Jail, Florida

11/96-1/97 Bay County Jail Annex (CCA), Florida

1/97-3/97 Avoyelles Parish Prison, Louisiana

3/97-? Pointe Coupee Parish Prison, Louisiana

Mohamud Hassan, from Somalia

10/94-1/95 Esmor contract facility, New Jersey

1/95-5/95 Lehigh County, Pennsylvania

5/95 Back to Esmor for immigration hearing

5/95 Back to Lehigh County Jail

5/95-7/95 Wicomoco County Jail, Maryland

7/95-9/95 Dorchester County Jail, Maryland

9/95-10/96 Orleans Parish Prison, Louisiana until release

After being detained at J.F.K. airport in New York at age nineteen, Mohamud Hassan was transferred seven times to five facilities in four different states. Hassan was given lists of legal service providers, but frequent transfers made it impossible for him to find an attorney to represent him in his asylum claim. Unrepresented, he lost his initial asylum hearing and was transferred to Orleans Parish Prison in Louisiana to await the outcome of his appeal. Hassan told Human Rights Watch that at Orleans Parish Prison, five correctional officers came to his cell, handcuffed him, and kicked and beat him because another INS detainee told the jail officers that Hassan had threatened the correctionalofficers.[315] After the beating, Hassan was given forty days of disciplinary segregation. Hassan eventually found an attorney after relatives in Canada called Amnesty International in San Francisco which was able to recruit a volunteer lawyer in New Orleans. After two years in detention, Hassan was granted asylum and released.

Indefinite Detainees

The guards used to tell me `You'll be here until you're dead.'

-Nestor Campos from Cuba, describing what deputies at Orleans Parish Prison in Louisiana told him about his detention.[316]

Unlike criminal prisoners, INS detainees have no exact sentence or set date when they can expect to be released from detention. They must patiently endure long INS, immigration court, and appellate delays before they know the outcome of their cases. And these are the lucky ones. About 1,800 INS detainees live daily with no guarantee that they will ever be let out of detention.[317] These "long-term unremovables" under final orders of deportation are held indefinitely by the INS, the majority in local jails, because the INS will not release them and neither their countries of origin and no third country will accept them.[318]

Arbitrary detention is clearly prohibited by international law. Even when the initial detention is justified, Human Rights Watch believes that detention becomes arbitrary when detainees, who are not serving a criminal sentence, do not know when they will be released and have no genuine mechanism to challenge the indefinite nature of their detention. In recent decisions, U.S. courts have ordered INS detainees released from long and indefinite detention citing violations of constitutional due process guarantees.[319]

Most indefinite detainees are citizens of countries with whom the United States has limited, or no, diplomatic relations or which simply refuse to accept their citizens who have emigrated or fled. Among these countries are Vietnam, Laos, Cambodia, Cuba, Iran, Iraq, and Libya. Other detainees are held indefinitely because they are "stateless," meaning that no legal state will recognize their nationality. Such "stateless" people may include Palestinians, those born in refugee camps, or citizens of governments that no longer exist. Still others are held indefinitely because political upheaval or war has destroyed state infrastructure and eliminated functioning governmental offices.

The majority of indefinite detainees are detained after finishing their criminal sentences, but asylum seekers may also be held indefinitely if their countries will not accept them after their asylum claims fail.[320] For INS detainees who have served previous criminal sentences, indefinite detention means that they will remain incarcerated in criminal facilities for years after they complete their criminal sentences. For example, Human Rights Watch interviewed a sixty-five- year old man from Afghanistan who had been arrested and convicted on a drug charge in 1993. He satisfied the criminal sentence in only seventy-five days and was then handed over to the custody of the INS. At the time of our interview, he had been detained in Orleans Parish Prison in Louisiana, two other jails, and one Service Processing Center for four years; he remains in jail at the time of this writing.[321]

The INS recognizes that it "is not suited to handle long-term criminals and those with no hope of release."[322] While INS headquarters may be sensitive to the agency's limits in regards to long-term detainees, detainees report little sympathy for their plight from the INS at the local level. Mam Vang Du, a Vietnamese national who has been detained in the Orleans Parish Prison in Louisiana for four years, told Human Rights Watch that when the INS brought him to Louisiana, the head of deportation told him. "[I]f your country doesn't accept you, it's life for you."[323]

Vietnamese citizen Than T. Ta was transferred to INS custody after serving a criminal sentence in a Texas prison. The INS ordered him deported to Vietnam in March 1997 and Ta did not object. But almost a year and a half after the final order of deportation was entered, Ta remains detained at the time of this writing at Wharton County Jail, Texas with no hope of being released or being deported.

INS detainee Joseph Essel, also at Wharton County Jail, was born in Ghana and moved to Liberia at age six. According to Essel, after his parents were killed in Liberia during the civil war, he entered the United States in 1991 and was detained as a stowaway. "The only document I had in my possession," he wrote Human Rights Watch, "was my Liberian I.D. card. I had no time to get any kind of document in my possession during my escape from my country."[324]

According to INS documents, Essel was released in 1992 due to the "dim prospect of acquiring a travel document" from Ghana, the country of his birth.[325] Then, in March 1997, while he was visiting a friend detained at an INS contract facility in Houston, the INS detained him again based on a prior conviction for which he had served 120 days in 1992. In April 1997, Essel was sent to Wharton County Jail in Texas. He wrote to Human Rights Watch, "[M]y deportation officer ordered me to provide him a document that I did not have...He told me that my failure to produce this document which I cannot get during my escape from my country will be an indication to the INS that I am a flight risk and will allow the INS to continue to hold me. I am an immigrant that came to the USA for freedom,not incarceration."[326] At the time of this writing, Essel has been detained for sixteen months in Wharton County Jail where he languishes, waiting for a document that will likely never be produced.

Human Rights Watch is aware of dozens of detainees in local jails in the same desperate situation. Ohia Kalasho, for example, is an Iraqi citizen who has been in INS custody since March 13, 1997 awaiting deportation to his country. He wrote to Human Rights Watch from Orleans Parish Prison seeking release from a place he claims "is not equipped for long term detention."[327] Tuan Truong, a Vietnamese detainee in Nacogdoches County Jail in Texas has been waiting for deportation for seventeen months at the time of this writing. Truong, who cannot afford an attorney, said he was told by the INS deportation officer who arrested him that he "will be in INS custody indefinitely until the Communist government in Vietnam issues [his] travel documents."[328]

Cuban detainees, victims of poor diplomatic relations between the United States and Cuba, also receive what amount to life sentences in jail simply because of their immigration status. Mariel Cubans (as they are called) are given an annual opportunity every year to have their cases heard before a panel of INS officers (Cuban Review Panel) who review the detainees' files and judge whether they merit parole. Detainees must supply evidence of good behavior, rehabilitation and prove they are no longer a danger to society in order to be released.

Although all Cubans have a right to counsel at the panel interview, such a right means little for detainees housed in rural local jails far from any possible legal help. Most of the detainees who do receive legal counsel benefit from a handful of lawyers and law students who are willing to take on the cases free of cost. Still, representation is often of little help because lawyers are not allowed to review files and panels take place without the representatives present.[329]

Alternatives to Long-Term Detention

The INS is undertaking, on an informal basis, panel interviews to assess whether any of the indefinitely held non-Mariel Cubans or INS detainees of other nationalities should be released. The INS has established a pilot program of interviews in California, Pennsylvania and Louisiana, in which it attempts to determine whether the nature of a detainee's crime permits release and whether they would have material support once released from detention. The INS has been very quiet about this program, and some immigration detention attorneys working in pilot states report that they were unaware their clients may be eligible for such a program.

Detention in local jails undermines long-term detainees' chances of being released under the program. To receive a favorable decision, detainees need to demonstrate that they have changed; that they have been rehabilitated during their time behind bars and are no longer a threat to society. Local jails, because they were never intended for long-term incarceration, rarely offer educational or vocational classes through which detainees could prove rehabilitation or commitment to self-improvement. Many of the indefinitely held detainees Human Rights Watch interviewed had no opportunity to participate in classes or programs of any kind.

One of the few hopes long-term INS detainees have of ever being released and resuming life with their families is a program offered at the Orleans Parish Prison called About Face. This intensive nine-month program begins with twelve weeks of strict boot camp. The leader of the physical training component, a veteran of the Vietnam War, described the heavy emphasis on discipline and responsibility by referring to military-style bed-making by saying, "If the coin don't bounce, they bounce."[330] The remainder of the program is dedicated to drug treatment, where participants address their own personal addictions which include, according to a written overview of the program provided by the jail, addiction "to the money which the sale of [drugs and alcohol] provides."[331] According to the jail, detainees whose crimes involved drug use are prioritized and detainees with convictions for certain crimes may not participate at all.[332] Once the program is completed, detainees may be released to a halfway house, or other supervised situation, where they are still under an order of deportation in the event their deportation becomes possible.

The program is positive in that it offers what may be the only hope for release to those who previously had none. Human Rights Watch believes, however, that a program that requires individuals who are administrative detainees to earn release by participating in a boot camp, professing their criminal natures and admitting addictive behavior is not appropriate. INS detainees who have been previously criminally convicted, have already served their criminal sentences in state and federal facilities where any punishment or rehabilitation should have taken place. The program also fails to provide any solutions to the underlying political reasons detainees find themselves in indefinite detention in the first place. The complex and arbitrary results of an immigration policy that allows detainees to serve life sentences in administrative detention cannot be answered simply by creating more programs like the one at Orleans Parish Prison.

LETTERS FROM DETAINEES

During our research, Human Rights Watch received hundreds of letters from people detained by the U.S. Immigration and Naturalization Service and held in local jails. Most wrote because they had no family, friends, or legal counsel to turn to and needed to express their desperation, frustration, and fears to someone.

Dear Human Rights Watch:

June 11, 1998

"Since the day I came to America [September 28, 1997], I have not committed any crime. I have never been in any type of prison system but when I came here they locked me up like I'm some kind of criminal...they locked me up along with inmates, people that have committed crimes...that's why I fear for my life....The situation here is no good for me, because they don't offer the basic needs in which to live. The food they give us is not enough to live on. When I request something from the officers they either deny me or tell me to write a request form, which they deny afterwards anyways. I don't have an attorney for I cannot afford one. I escaped from my country's army to come to America, but if I go back now to Iran, the consequences will be deadly."

-P.H. from Iran, Nacogdoches County Jail, Nacogdoches, Texas

February 5, 1998

"Let me inform you that I was violently beaten today...at 10:30 this morning. It was time for my `checkdown' and an officer told me to put my hands on the wall. It's because I asked him to be more gentle that he beat me up. He hit my head into the wall many times and threw me forcefully on the floor. To hold me down, an officer put his foot on my head. I let them do whatever they wanted. Here it is normal for officers to beat detainees without reason....I think your presence here would be indispensable."

-E.M. from Democratic Republic of the Congo, Virginia Beach Detention Center, Virginia Beach, Virginia

June 3, 1998

"Again I ask you to please help me...I don't know what to think, maybe they want me to die in this place....I already paid my time in state prison and now they put me again in prison far away where [my family] can't visit me because it is an eight hour journey. Also, they no longer let us send letters so I had to send this letter out with some county prisoners detained here...."

-F.T.G. from Cuba, Yuba County Jail, Marysville, California

March 1, 1998

"I was born in Hamburg, Germany on January 14, 1948 in a refugee camp...my parents came form the U.S.S.R. We were brought to the United States as legal permanent residents by Catholic Services. I'm fifty-years old now and have been in the United States for forty-eight years. In 1990 I went to jail...and when I was ready to go home the INS arrested me. Since September 6, 1996, I have been waiting to be deported. Germany has already told the INS that they will not accept me, have no records of me at all or of my parents either....I always showed up in court and never ran from [the INS]. I asked them to release me and I would go on my own, but they said no one would take me. Why still hold me then? "

-M.J. from Germany, Snyder County Jail, Selingsgrove, Pennsylvania

January 8, 1998

"In June of 1997 my application for immigrant status with the Immigration and Naturalization Service (INS) was rejected. Since then, my presence in the United States became illegal, and that is why I was arrested....After the ruling I was placed in solitary confinement, in a cell with no heat and no hot water. I was not allowed to use the telephoneto talk to my lawyer. A Muslim prison employee was prevented from giving me a copy of the Quran. I was not allowed to perform Friday congregational prayers with other Muslim inmates, nor could I go to the gymnasium. To this day, jail management refuses to provide a vegetarian meal. I do not eat meat because of religious convictions. Since my arrest, I have lost 25 pounds...."

-N.S. from Egypt, Mercy County Detention Center, Trenton, New Jersey

November 17, 1997

"[I am] Vietnamese, 21 years old....Because I have no lawyer or legal representative I did not appeal the judge's decision in proper time and from the information from the United Nations High Commissioner for Refugees office I filed a motion to reopen or to reconsider my case along with my political asylum application. [It was] denied on August 1, 1997. Now I don't know what to do and who I can ask for help. Please, somebody help me on this matter. I've been in this detention center for over a year for nothing, we have no sunlight, no fresh air nor life necessity."

-T.N. from Vietnam, Carter County Detention Center, Ardmore, Oklahoma

ACKNOWLEDGMENTS

This report was written by Jennifer Bailey, research associate for Human Rights Watch. Research for the report was conducted between February 1997 and August 1998 by Jennifer Bailey, Allyson Collins, senior researcher, and Kokayi Issa, Leonard Sandler Fellow. Legal research and drafting of the legal section was done by Rosa Ehrenreich, consultant to Human Rights Watch.

The report was edited by Allyson Collins, Cynthia Brown, program director, and Dinah Pokempner, deputy general counsel of Human Rights Watch. Rachael Reilly, refugee director, reviewed refugee policy and legal sections. Sam David, program and advocacy associate, provided technical and research assistance, as did Amanda Maher, a former intern.

Human Rights Watch is especially thankful to Donald Kerwin, of the Catholic Legal Immigration Network in Washington D.C., for his thoughtful review of the report. We are also grateful to all of the immigrant advocates around the country who took time to share information with Human Rights Watch; to the jail officials who agreed to meet with us and allow us to tour their facilities; and to the INS officials who provided information regarding how the agency's arrangements with jails work. Finally, we are indebted to the hundreds of INS detainees who communicated with Human Rights Watch, sometimes at significant risk to themselves.

Human Rights Watch is deeply grateful to Jesuit Refugee Service/USA for its critical support of our work on human rights, refugee, and immigration issues. We would also like to thank the J.M. Kaplan Fund for sponsoring translation of excerpts from this report.

Human Rights Watch

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[1] In the first three months of FY1998 (beginning October 1, 1997), the INS detained and deported 34,134 people, a seventy percent increase over the same period in 1997. In 1998, the agency plans to detain and deport 127, 300 people. Michelle Mittelstadt, "INS Removes 70 Percent More Aliens," Associated Press, February 19, 1998.

[2] While civil wars plagued Central America, the United States routinely locked up and sometimes deported Central Americans seeking asylum. Helsinki Watch, Detained, Denied, Deported: Asylum Seekers in the United States, (New York: Human Rights Watch, June 1989).

[3] Ian Fisher, "Smuggled Chinese Immigrants Released From Prison," New York Times, February 27, 1997. See also, Women's Commission for Refugee Women and Children, A Cry for Help: Chinese Women in Detention, March 1995, which describes the experiences of thirteen women from the Golden Venture held in local jails in Mississippi and Louisiana.

[4] Internal INS Detention and Deportation Daily Population Reports from the Western, Central, and Eastern INS Regional offices for August 7, 1998.

[5] Federal Detention Plan 1997-2001, submitted by the Department of Justice to the U.S. Congress in May 1997.

[6] INS Detention and Deportation Daily Population Reports, August 7, 1998.

[7] Federal Detention Plan 1997-2001.

[8] Immigration and Nationality Act (INA), Section 241(g)(2).

[9] Federal Detention Plan 1997-2001, p. 16.

[10] INA Sections 212(a), 237(a) and 238(a).

[11] The Transitional Period Custody Rules, 8 Code of Federal Regulations (C.F.R.), Section 235.3.

[12] Memorandum on Detention Policy, INS Office of the Commissioner, July 14, 1997.

[13] See Legal Standards.

[14] 8 C.F.R. 235.3(c). Regulations provide that parole determinations be made on a case-by-case basis for urgent humanitarian reasons of significant public benefit where there is no security or flight risk. 8 C.F.R. 212.5(a). See Lawyers Committee for Human Rights, Slamming `The Golden Door:' A Year of Expedited Removal, March 1998, describing how the INS unnecessarily imprisons bona fide asylum seekers by failing to comply with its own parole procedures.

[15] Mirta Ojito, "Inconsistency at INS Complicates Refugees' Asylum Quest," New York Times, June 22, 1998.

[16] Tim Doran, "Jailed Woman Awaits Decision," Detroit Free Press, July 9, 1998.

[17] "Report on the First Year of Implementation of Expedited Removal," International Human Rights and Migration Project, Markkula Center for Applied Ethics, Santa Clara University, May 1998, p. 55.

[18] The nine SPCs are located in Aguadilla, Puerto Rico; Buffalo, New York; El Centro, California; El Paso, Texas; Florence, Arizona; Miami, Florida; Los Fresnos, Texas; San Pedro, California; and New York, New York.

[19] The INS contracts with Wackenhut and Corrections Corporation of America to hold only INS detainees in facilities in Aurora, Colorado; Houston, Texas; Seattle, Washington; Laredo, Texas; and Elizabeth, New Jersey. In addition, the Bureau of Prisons leases additional space to the INS in Oakdale, Louisiana and Eloy, Arizona.

[20] INS Detention and Deportation Statistics, February 25, 1998.

[21] For example, Human Rights Watch received letters from INS detainees held in St. Mary's County Detention Center in Leonardtown, Maryland, Nacogdoches County Jail in Nacogdoches, Texas, and Salem County Correctional Facility, in Woodstown, New Jersey, yet none of these facilities appeared on any list provided by the INS.

[22] In 1998, the average per diem paid to local jails by the INS was $58.46. Federal Detention Plan 1997-2001.

[23] Myung Oak Kim, "York County, PA, Benefits From Tougher Immigration Laws," Philadelphia Daily News, May 14, 1998. To make space for the increased numbers of detainees, the jail's gymnasium has been converted into dormitory housing to hold between seventy and ninety detainees.

[24] Mike Zapler, "York Prison Program Awaits Congressional Action on Immigration," States News Service, May 7, 1996.

[25] Human Rights Watch interview with S. Kent Dodd, INS facility director, Manatee County Jail, Bradenton, Florida, February 25, 1997.

[26] Ibid.

[27] Human Rights Watch interview with Capt. Harlan Westmoreland, Euless City Jail, Euless, Texas, February 27, 1997.

[28] The Corrections Corporation of America is a for-profit business that contracts with federal, state, and local governmental agencies to run penal and detention institutions.

[29] Human Rights Watch interview with Chief Mike Holm, Jr., Liberty County Jail, Liberty, Texas, March 7, 1997.

[30] 8 CFR 235.3(e).

[31] The detention standards issued in January 1998 are: Access to Legal Materials; Detainee Population Counts; Detainee Marriage Requests; Detainee Telephone Access; Detainee Visitation; Detainee Voluntary Work Program; Group Legal Rights Presentations; Issuance and Exchange of Clothing, Bedding, Linen and Towels; Detainee Access to Medical Care; Religious Practices; Suicide Prevention and Intervention; and Hunger Strikes. Four of the standards, dealing with visitation, legal materials, telephone access and legal rights presentations were circulated by the INS, with the help of the American Bar Association, to interested immigrants advocates for informal comment before being finalized.

[32] The American Correctional Association is a non-profit organization that administers the only national accreditation program for adult correctional institutions. The ACA has developed thirty-five mandatory and 386 non-mandatory standards covering such topics as health care, physical conditions, staff training, discipline, food service, capacity and location of facilities. American Correctional Association, Standards for Adult Local Detention Facilities (1991), Standards Supplement (1998).

[33] Donald Kerwin, "Detention: Our Sad National Symbol," In Defense of the Alien, (New York: Center for Migration Studies, 1997), p. 137.

[34] Ibid.

[35] Ibid., p. 138.

[36] Human Rights Watch interview with Kristine Marcy, Senior Counsel, INS Office of Field Operations, Washington D.C., May 29, 1998.

[37] This is the language used in the INS contract with Berks County Prison and York County Prison in Pennsylvania.

[38] Human Rights Watch telephone interview with Terry Valentine, INS Detention Inspector, Oakdale, Louisiana, July 1, 1998.

[39] Some jail officials told Human Rights Watch that the INS made diet and exercise requirements or that the contract stated that INS detainees cannot work and must be fed 2,400 calories per day.

[40] James Minton, "Six Cubans Flee E. Feliciana Prison," The Advocate, Baton Rouge, Louisiana, June 24, 1998.

[41] In only one of the contracts obtained by Human Rights Watch was the subject of inspections explicitly mentioned. The IGSA between Fort Lauderdale City Jail and the INS states that the city "agrees to allow periodic inspections of the facility by [INS] jail inspectors," but does not specify frequency of the inspections or what standards would be used.

[42] Human Rights Watch interview with Col. David Parish, Hillsborough County Jail, Tampa, Florida, February 24, 1997.

[43] Human Rights Watch interview with Maj. Richard Ference, corrections bureau chief, Manatee County Jail, Bradenton, Florida, February 25, 1997.

[44] Human Rights Watch interview with Maj. Steve Saunders, Hillsborough County Jail, February 24, 1997.

[45] David Gonzales, "Jail Uprising Leaves Many Sad and Bitter," New York Times, June 25, 1995. U.S. Immigration and Naturalization Service, The Elizabeth, New Jersey, Contract Detention Facility Operated by Esmor, Inc.: Interim Report, July 20, 1995.

[46] Ibid. For months before the uprising, detainees and their advocates had been complaining to the INS about the food, medical care, sleeping conditions and abusive treatment by guards in the Esmor facility. Carl Frick, who served as the facility's first warden, told the New York Times that a riot was predictable, since everything from the food to medical care was "done as cheaply as possible;" for example, the food service contract was renegotiated because $1.12 per day was considered too expensive for detainees' meals. See also, Ashley Dunn, "Jail Official Blames Revolt on Agency," New York Times, June 21, 1995.

[47] Christine Gardner, "Defense Argues for U.S. Guards in Trial Over Illegal Immigrants," Reuters, March 3, 1998. "Detained Immigrant Recalls Rough Treatment at Union County Jail," Associated Press, February 2, 1998.

[48] Ronald Smothers, "Immigrants Tell of Mistreatment by New Jersey Jail Guards," New York Times, February 6, 1998.

[49] Ronald Smothers, "Three Jail Guards Guilty of Abusing Immigrants," New York Times, March 7, 1998.

[50] Ibid. On April 28, another officer was convicted for failing to report the beatings of the immigrants while the final officer standing prosecution was acquitted.

[51] U.S. Immigration and Naturalization Service, The Elizabeth, New Jersey, Contract Detention Facility Operated by Esmor, Inc.: Interim Report, July 20, 1995.

[52] Ibid.

[53] Human Rights Watch telephone interview with Andrea Quarantillo, INS Newark district director, Newark, New Jersey, July 29, 1998. Detainees and their advocates have complained of forcible sedation and improper use of restraints and the complaints have been investigated by the INS.

[54] Teresa Mears, "Detainees Held By INS Say Jails Rife With Abuse," The Boston Globe, August 2, 1998.

[55] Lois Shea, "Immigrant Detainees Continue Hunger Strike at N.H. Jail," Globe Staff and Clare Kittredge Globe Correspondent, February 2, 1998.

[56] Mabell Dieppa, "Cuban Refugees Held 17 Years in U.S. `Detention' Camp Stage Hunger Strike," Reuters, August 20, 1997.

[57] For a history of INS parole programs and suggestions about how they can be improved, see Arthur Helton, "A Rational Release Policy for Refugees: Reinvigorating the APSO Program," 75 Interpreter Releases 685 (May 18, 1998).

[58] INS Memorandum titled "Implementation of Expedited Removal," from Chris Sale, INS deputy commissioner, March 31, 1997.

[59] Helton, "A Rational Release Policy...." Interpreter Releases, May 18, 1998, p. 689.

[60] "Attaining Compliance with Immigration Laws Through Community Supervision," The Appearance Assistance Project, Vera Institute of Justice, 1998.

[61] Ibid. From February 3 to December 31, 1997, 220 court appearances were required and 188 appearances were made.

[62] Article 7 of the International Covenant on Civil and Political Rights establishes that "all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person." G.A. Res. 2200A (XXI), December 16, 1966. Article 16(1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment requires that detainees must not be subjected to any form of torture or cruel, inhuman or degrading treatment while in detention. G. A. Res. 39/46, December 10, 1984. See also, the American Convention on Human Rights, O.A.S.T.S. No. 36, Nov. 22, 1969 and the Universal Declaration of Human Rights, G.A. Res. 46, December 10, 1948.

[63] Adopted by U.N. Economic and Social Council resolution 663C (XXIV), July 31, 1957. Although it has not yet come into force, Article 17 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families establishes that migrant workers and members of their families shall, save in exceptional circumstances, be separated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons, including cases where the migrant worker or family member is in detention for violation of provisions relating to migration. For the purposes of the Convention, migrant workers are considered to include both those workers who have permission to enter the state of employment and those who do not. GA Res. 45/158, December 18, 1990.

[64] U.N. GA Res., 43/173, U.N. Doc. a/43/49 (1988).

[65] Universal Declaration, Article 9; ICCPR, Article 9(1).

[66] ICCPR, Article 9(4).

[67] Van Alphen v. Netherlands (U.N. Human Rights Committee, Communication No. 305) 1988.

[68] "Under international law a de jure stateless person is one "who is not considered as a national by any state under the operation of its law." (Article 1, 1954 Convention relating to the Status of Stateless Persons). The term is also used to refer to those who are de facto stateless, namely, those persons who are unable to establish their nationality, whose nationality is disputed by one or more countries, or who lack an "effective nationality" and are thus unable to enjoy the rights associated with citizenship. For a fuller discussion, see UNHCR, State of the World's Refugees (Oxford: 1997), Chapter 6, and C. Batchelor "Stateless Persons: Some Gaps in International Protection" 7 International Journal of Refugee Law (1995).

[69] 1951 U.N. Convention Relating to the Status of Refugees, Article 1. The United States is a signatory to the 1967 U.N. Protocol Relating to the Status of Refugees, which expands the Convention.

[70] Refugee Convention, Article 31(2).

[71] The United Nations High Commissioner for Refugees (UNHCR) is the U.N. agency with the mandate helping to implement the Refugee Convention, and the official publications of the UNHCR have been recognized internationally as authoritative guides to interpreting the provisions of the Refugee Convention. In 1995, the UNHCR issued Guidelines on the Detention of Asylum Seekers which emphasize the undesirability of detaining asylum seekers, except in limited circumstances. UNHCR is currently in the process of revising the guidelines by improving procedural safeguards and suggesting alternatives to detention, among other revisions.

[72] Universal Declaration, Article 14.

[73] Refugee Convention, Article 31(1).

[74] Arthur Helton, Detention of Refugees and Asylum Seekers, in Loescher, Refugee Issues in International Relations, (Oxford: Oxford University Press, 1989).

[75] Refugee Convention, Article 9.

[76] UNHCR Guidelines, Guideline 3. Detention of asylum seekers has been an area of concern for many countries that receive refugees. In 1996, the European Council of Refugees and Exiles (ECRE), a consortium of refugee organizations within the European Union, issued detailed recommendations on the detention of asylum seekers. The recommendations emphasize that asylum seekers should only be detained when state authorities demonstrate a compelling need based on the personal history of each asylum seeker, and call for conditions of detention that meet minimum international standards that protect their rights to such things as legal counsel and adequate health care. Position Paper on the Detention of Asylum Seekers, European Council on Refugees and Exiles, April 1996.

[77] Ibid., Guideline 4.

[78] The Guidelines for detaining asylum seekers who are under 18 are particularly strict: they state that children may be detained only as a measure of last resort, and for the shortest appropriate period of time. See Human Rights Watch, Slipping Through the Cracks: Unaccompanied Children Detained by the U.S. Immigration and Naturalization Service (New York: Human Rights Watch, 1997).

[79] Women asylum seekers face particular problems in detention. The UNHCR's July 1991 Guidelines on the Protection of Refugee Women note that violence against women and girls does not necessarily abate when refugees reach an asylum country. In various official pronouncements, UNHCR has also made it clear that it is important to ensure that refugee women have ready access to female protection staff and female interpreters, as well as to reproductive health facilities including female medical staff and gynecologists.

We note also that unaccompanied minors are protected by a wide range of international standards. See Slipping Through the Cracks: Unaccompanied Children Detained by the U.S. Immigration and Naturalization Service (New York: Human Rights Watch, 1997).

[80] Conclusion No. 44, Detention of Asylum Seekers, United Nations High Commissioner for Refugees, Executive Committee, 37th Session, 1986.

[81] Shaugnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953).

[82] Plyler v. Doe, 457 U.S. 202, 210 (1981).

[83] Johns v. Dept of Justice, 624 F.2d. 522, 524. (5th Cir. 1980).

[84] INS 240(b)(4)(A). An individual "shall have the privilege of being represented, at no expense to the Government, by counsel of the [individual's] choosing who is authorized to practice in such proceedings."

[85] See Margaret H. Taylor, "Promoting Legal Representation for Detained Aliens," 29 Connecticut Law Review 1647 (Summer 1997) for a thorough discussion of the development of immigration detainees' right to legal counsel and current obstacles to representation.

[86] In the past, courts have held that immigrants going through "exclusion" proceedings have fewer due process rights than immigrants in deportation hearings. This is because courts have drawn a highly academic distinction between immigrants who have legally "entered" the United States and those who have not. "Entry" is a legal term that encompasses persons detained at the border who may subsequently be paroled and live within the United States. This legal distinction has long been of tremendous importance, since few of the due process rights the courts have recognized for deportable aliens have been granted to excludable aliens. Thus, deportable aliens have been viewed as having, at a minimum, the right to be represented by an attorney of their choice in deportation proceedings, while excludable aliens have not had such a right to counsel. Similarly, deportable aliens have had a much wider range of appeal rights after negative rulings in their deportation cases. Immigration legislation passed in 1996 eliminated the distinction between the two proceedings and created a single category of deportation called removal.

[87] The new immigration law retroactively redefines a host of offenses from drug use to spousal abuse, making them grounds for deportation.

[88] For instance, the American Civil Liberties Union has challenged the legality of the retroactive application of the law and the prohibitions on federal court review.

[89] "Admission" is defined as a lawful entry after inspection and authorization by an immigration officer. INA 101(a)13.

[90] INS Fact Sheet on Expedited Removal Process, March 31, 1998.  

[91] INA 235(b)(1)(A).

[92] "Credible fear" is defined as a "significant possibility" that an applicant could "establish eligibility for asylum." INA 235(b)(1)(B).

[93] INA 235(b)(1)(B)(iv).

[94] INA 235(b)(1)(B)(iii).

[95] Immigration and Naturalization Act, 235 (b) (1) (B) (ii).

[96] Federal Register, Vol. 62, No. 44, March 6 1997, p. 10318.

[97] Two recent reports on the expedited removal process conclude that it has been a major human rights failure. In Slamming the `Golden Door': A Year of Expedited Removal (April, 1998), the Lawyers Committee for Human Rights (LCHR) found that at airports, immigrants and asylum seekers suffer from abusive treatment by INS officials, inadequate translations, and the denial of access to counsel. LCHR also noted "serious concerns" about the credible-fear determination process, including inconsistencies among asylum officers in the conduct of interviews, poor translation, and lack of preparation time for asylum applicants. LCHR also noted that the process has led to unnecessary imprisonment of bona fide asylum seekers.

Another report, by immigration attorneys working with the legal advocacy group Catholic Legal Immigration Network, found that immigrants and asylum seekers in expedited removal were at times shackled to airport benches for up to eighteen hours before being transported to detention facilities and that such aliens were denied food, were separated from traveling companions, and were denied telephone access. Some were permitted to make telephone calls but could not do so because their address books and other possessions had been confiscated. The report also found that many asylum applicants did not receive written information about the credible fear interview process in languages other than English, and did not receive adequate lists of free legal service providers. Reported in Siskind's Immigration Bulletin, November 1997.

[98] City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983), citing Bell v. Wolfish, 441 U.S. 520, 545 (1979).

[99] 8 CFR 235.3. For a thorough discussion of the history of constitutional challenges to INS detention conditions, see Margaret H. Taylor, "Detained Aliens Challenging Conditions of Confinement and the Porous Border of the Plenary Power Doctrine," 22 Hastings Constitutional Law Quarterly 1807 (Summer 1995).

[100] See, e.g., Haitian Centers Council v. Sale, 823 F. Supp. 1028 (EDNY 1993) (vacated per settlement agreement). See also Kerwin, p. 8.

[101] Medina v. O'Neill, 838 F.2d 800, 803 (5th Cir. 1988). See also, Adras v. Nelson, 917 F.2d 1552 (11th Cir. 1990) finding INS officials immune from suit where detention was lawful and no gross physical abuse was proved.

[102] Kattola v. Reno, CV. No. 94-4859, United States District Court, Central District of California.

[103] The American Correctional Association is a non-profit organization that administers the only national accreditation program for adult correctional institutions. The ACA has developed thirty-five mandatory and 386 non-mandatory standards covering such topics as health care, physical conditions, staff training, discipline, food service, capacity and location of facilities. American Correctional Association, Standards for Adult Local Detention Facilities (1991), Standards Supplement (1998).

[104] Federal Register, Vol. 62, No. 44, March 6, 1997, @ 10323.

[105] Ibid.

[106] It should be noted that such policies do exist with regard to detention conditions for unaccompanied minors. See Human Rights Watch, Slipping Through the Cracks....

[107] Even in the facilities in which the standards will apply, they only have the status of operations policy, and are not legally binding on the INS.

[108] Human Rights Watch telephone interview with Mary Baldwin Kennedy, director of Federal and Communications Division, Office of the Criminal Sheriff Orleans Parish, New Orleans, Louisiana, March 13, 1997. A year later, the policy of the jail had changed, and in June 1998, a Human Rights Watch lawyer was allowed legal visits with detainees without meeting the previously stated requirements.

[109] Human Rights Watch telephone interview with Warden Short, New Orleans, Louisiana, March 19, 1997. Warden Short also told Human Rights Watch that a legal visit was not necessary since immigration detainees were provided lawyers by the government, which is not the case.

[110] Human Rights Watch telephone interview with Nancy Hooks, Officer-in-Charge, Oakdale Federal Detention Center, Oakdale, Louisiana, March 12, 1997.

[111] Ibid.

[112] Human Rights Watch interview with Gerard Guillory, Avoyelles Parish Prison, Marksville, Louisiana, March, 20, 1997.

[113] Human Rights Watch interview with John Caplinger, INS New Orleans district director, New Orleans, Louisiana, March 21, 1997.

[114] Human Rights Watch interview with Lt. Hank Marsh, Fort Lauderdale City Jail, Fort Lauderdale, Florida, February 28, 1997.

[115] Letter from Orcalino Eneias to Human Rights Watch dated February 21, 1998.

[116] Even in jails that held male INS detainees separately from local inmate populations, separation of female detainees (whose numbers are smaller) was considered too much of a burden to jail officials. This was the case in Fort Lauderdale City Jail in Florida, Orleans Parish Prison in Louisiana and Clark/Frederick/Winchester Jail in Virginia. The Women's Commission on Refugee Women and Children found that female asylum seekers in Berks County and York County jails in Pennsylvania were commingled with local inmates, often in maximum security areas, in both sleeping and living quarters. Women's Commission for Refugee Women and Children, Forgotten Prisoners: A Follow-up Report on Refugee Women Incarcerated in York County, Pennsylvania, July 1998.

[117] U.N. Standard Minimum Rules, Rule 8. Principle 8 of the U.N. Body of Principles also states that "persons in detention shall be subject to treatment appropriate to their unconvicted status [and]... shall, whenever possible, be kept separate from imprisoned persons."

[118] UNHCR Guidelines on Detention of Asylum Seekers, Geneva, 1997.

[119] Conclusion No. 44, Detention of Asylum Seekers, United Nations High Commissioner for Refugees, Executive Committee, 37th Session, 1986.

[120] Leigh Marjamaa and Ben Evans, "No Way Out," Medill News Service, March 13, 1998.

[121] Human Rights Watch interview with Alfredo DÍaz Ventura, Denton County Jail, Denton, Texas, March 5, 1997.

[122] Human Rights Watch interview with Chief Paul Trahan, Vermilion Parish Jail, Abbeville, Louisiana, March 20, 1997.

[123] Human Rights Watch interview, Capt. Goldson, Liberty County Jail, Liberty, Texas, March 7, 1997.

[124] Human Rights Watch interview with An Mei Weng, Clark/Frederick/Winchester Adult Correctional Facility, Winchester, Virginia, February 7, 1997. The jail administrator told Human Rights Watch that the jail's contract with the INS does not stipulate that detainees should be held separately from the local inmate population.

[125] Letter from Amara Shahid Kargbo to Human Rights Watch, St. Mary's County Detention Center, dated August 23, 1998.

[126] Ibid.

[127] Human Rights Watch telephone interview with J. Anwar, St. Martin Parish Correctional Center, May 10, 1998.

[128] Human Rights Watch interview with Maj. Richard Ference, Manatee County Jail, Bradenton, Florida, March 7, 1997.

[129] Human Rights Watch interview with JosÉ Reyes, Dallas County Jail, Dallas, Texas, March 5, 1997.

[130] Letter from R.P. to Human Rights Watch, Beauregard Parish Detention Center, DeRidder, Louisiana, dated April 16, 1997.

[131] Article 10(1) of the International Covenant on Civil and Political Rights provides: "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."

The UNHCR Guidelines on Detention of Asylum Seekers make clear that conditions of detention should be humane and prescribed by law and make special reference to the applicability of the norms and principles found in the U.N. Standard Minimum Rules and the U.N. Body of Principles. In particular, Guideline 6 states that the following conditions for asylum seekers should be provided:

(I) the segregation within facilities of men and women, and children from adults and

asylum seekers from convicted criminals;

(ii) the possibility regularly to contact and receive visits from friends, relatives and legal counsel;

(iii) the possibility to receive appropriate medical treatment and to conduct some form of physical exercise; and

(iv) the possibility to continue further education or vocational training.

[132] In 1994, immigrant advocates and pro bono lawyers filed a constitutional challenge to the Chicago district's detention arrangement alleging deliberate subjection to inhumane conditions of confinement and denial of reasonable access to attorneys and legal materials. Imasuen v. Moyer, 91-5425, U.S. District Court, Northern District of Illinois.

[133] According to the INS, the city jails most frequently used are located in Western Springs, Stone Park, and Brookfield, Illinois. Usually, between ten and thirty detainees are held in the city jails at night and on the weekends. The Broadview Service Staging Area can hold up to 150 people during the day. Human Rights Watch interview with Terry Bretz, INS supervisory detention officer, Broadview Service Staging Area, April 4, 1997.

[134] Human Rights Watch interview with Fabio DÍaz, Broadview Service Staging Area, Broadview, Illinois, April 4, 1997.

[135] Human Rights Watch interview with Terry Bretz, April 4, 1997.

[136] Human Rights Watch interview with Oscar Flores GuzmÁn, Broadview Service Staging Area, Broadview, Illinois, April 4, 1997.

[137] Human Rights Watch interview with Fabio DÍaz, April 4, 1997.

[138] Human Rights Watch interview with Digafe Wkidan, Broadview Service Staging Area, Broadview, Illinois, April 4, 1997.

[139] Ibid.

[140] Human Rights Watch interview with INS detainee, INS New Orleans District Office, Louisiana, March 24, 1997. This detainee requested not to be identified. Other detainees, whose comments appear below, requested various levels of anonymity.

[141] Ibid.

[142] In a letter to Human Rights Watch, an INS detainee in the Templeman building of the Orleans Parish prison system wrote that all INS detainees in held in HOD were suddenly transferred to Templeman on August 17, 1998.

[143] Human Rights Watch interview with Nestor Campos, New Orleans, Louisiana, March 21, 1997.

[144] Human Rights Watch interview with Mam Vang Du, Orleans Parish Prison, New Orleans, Louisiana, June 5, 1998.

[145] Human Rights Watch interview with Warden George Wagner, Berks County Prison, Leesport, Pennsylvania, February 6, 1997. Cells in the old jail, for example, measured fifty-four square feet compared to seventy-two square feet in the newer sections.

[146] Human Rights Watch interview with Francisco Puig, Berks County Prison, February 6, 1997.

[147] Human Rights Watch interview, Chief Mike Holm, Corrections Corporation of America, Liberty County Jail, March 7, 1998. Less than 20 percent of the county inmates were held in the old section of the jail.

[148] Human Rights Watch interview with Rajinder Singh, Krome Service Processing Center, Miami, Florida, February 27, 1997.

[149] Florida Immigrant Advocacy Center, Inc, Florida County Jails: INS's Secret Detention World, Miami, November 1997, p. 44.

[150] Ibid. In January 1998, the INS issued detention standards governing detainee hunger strikes that allow detainees on hunger strike to be placed in isolation. The standards do not attempt to address the underlying issues relating to appropriate treatment for detainees in local jails and therefore would not have made this situation of the hunger-striking Sikhs any better.

[151] Human Rights Watch visit to Hillsborough County Jail, Tampa, Florida, February 24, 1997.

[152] Standard Minimum Rules, Article 21(1). Guideline 6 of the UNHCR Guidelines on the Detention of Asylum Seekers also requires that asylum seekers be given access to physical activity.

[153] 3-ALDF-5C-01.

[154] Internal INS Memorandum titled "Detained Alien Recreation Policy" from INS Commissioner Doris Meissner to Regional Directors, District Directors and Chief Patrol Agents, dated May 9, 1996.

[155] Ibid.

[156] Ibid.

[157] Detention Standards, Detained Alien Recreation Policy, Section V. F.

[158] This standard is applied inconsistently. For example, Vermilion Parish Prison sent Human Rights Watch a copy of the contract extension and the modification of the Inter-Governmental Service Agreement (IGSA) between the jail and the INS. On December 13, 1996 (when the INS recreation policy for detainees was already in place) the INS sent the Vermilion Parish Prison a letter detailing modifications of the IGSA. The letter lists changes in the payment address and names the new Contracting Officer for the INS in Vermont, but does not mention INS's recreation policy nor specify that the jail should be giving detainees recreation time daily.

[159] Human Rights Watch has seen contracts from York County Prison and Berks County Prison in Pennsylvania; Bay County Detention Center and Hillsborough County Jail in Florida; Pointe Coupee Parish Jail and Vermilion Parish Jail in Louisiana.

[160] Human Rights Watch interview with Qui Ngyuen, Immigration Court, Dallas, Texas, February 21, 1997.

[161] Human Rights Watch interview with Fred Hildebrand, Jail Administrator, Clark/Frederick/Winchester Adult Detention Center, Winchester, Virginia, February 7, 1997.

[162] Human Rights Watch interview with Chief Holm, Liberty County Jail, Liberty, Texas, March 7, 1997.

[163] Human Rights Watch interview with Janet Kumi, Liberty County Jail, March 7, 1997.

[164] Human Rights Watch telephone interview with Mary Baldwin Kennedy, director of Federal and Communications Division, Office of the Criminal Sheriff Orleans Parish, June 11, 1998.

[165] Human Rights Watch interview with Outthaaphay Detphongsone, Orleans Parish Prison, June 5, 1998.

[166] Human Rights Watch interview with Leonardo Delis Martin, INS New Orleans District Office, New Orleans, Louisiana, March 24, 1997.

[167] Human Rights Watch interview with Sergeant Knoll, DuPage County Jail, Wheaton, Illinois, April 3, 1997.

[168] Human Rights Watch interview with A.Y., DuPage County Jail, April 3, 1997.

[169] Human Rights Watch interview with Abdoulaye Diakite, DuPage County Jail, April 3, 1997.

[170] Ibid.

[171] Human Rights Watch interview with Lt. Hank Marsh, Fort Lauderdale City Jail, Fort Lauderdale, Florida, February 28, 1997.

[172] Human Rights Watch interview with Hardeep Singh, INS District Office, New Orleans, Louisiana, March 24,1997. Singh was being held in Orleans Parish Prison, but was brought by the INS to the district office to be interviewed by Human Rights Watch.

[173] Liberty County Jail request form signed by L. Smith, jail officer.

[174] Human Rights Watch interview with Reina Gonzales, Liberty County Jail, March 7, 1997.

[175] Human Rights Watch interview with Long Le, Denton County Jail, March 5, 1997.

[176] Human Rights Watch interview with George Albert Rojas, Denton County Jail, March 5, 1997.

[177] Human Rights Watch interview with Alejandro Cruz Serpas, Euless City Jail, March 5, 1997.

[178] Ibid.

[179] Human Rights Watch interview with Abdoulaye Diakite, DuPage County Jail, April 3, 1997.

[180] Orleans Parish Criminal Sheriff's Office, Step One Grievance Form dated April 15, 1998.

[181] Human Rights Watch interview with Eugenia, Liberty County Jail, March 7, 1997.

[182] Human Rights Watch interview with Abelino Barroso Gonzales, Pointe Coupee Parish Jail, March 18, 1997.

[183] Human Rights Watch interview with Harjinder Singh, Krome Service Processing Center, Miami, Florida, February 27, 1997.

[184] Letter from Ke Tuo Shan to Human Rights Watch dated May 25, 1997.

[185] Human Rights Watch interview with Emily Chamblin, Amnesty International volunteer, New Orleans, Louisiana, June 5, 1998.

[186] Human Rights Watch telephone interview Human Rights Watch with Mary Baldwin Kennedy, director of Federal and Communications Division, Office of the Criminal Sheriff Orleans Parish, New Orleans, Louisiana, June 11, 1998.

[187] On another occasion, a Laotian detainee requested that he be allowed to receive a Bible from his mother written in his native Hmong language. Initially, jail officials agreed to let a jail chaplain receive the Bible and give it to the detainee, but permission was later revoked. Human Rights Watch interview with Soeung Chhunn, Orleans Parish Prison, June 5, 1998.

[188] Human Rights Watch interview with S. Kent Dodd, Manatee County Jail, Bradenton, Florida, February 25, 1997.

[189] Letter from INS detainees at Riverside Regional Jail to Human Rights Watch, Hopewell, Virginia, dated May 23, 1998.

[190] Human Rights Watch interview with L.J. Ying, Krome Service Processing Center, Miami, February 27, 1997.

[191] Letter from journalist to Human Rights Watch dated May 8, 1998, describing interview with Sri Lankan detainee.

[192] Human Rights Watch tour of Orleans Parish Prison with American Bar Association delegation, comments of with Mary Baldwin Kennedy, director of Federal and Communications Division, Office of the Criminal Sheriff Orleans Parish, New Orleans, Louisiana, June 4, 1998.

[193] Ibid.

[194] Principle 19 of the Body of Principles states that a detained person "shall have the right to be visited by and to correspond with, in particular, members of his family and shall be given the opportunity to communicate with the outside world." Principle 16(1) states that detainees are entitled to notify family members or other interested persons after they are arrested and when they are transferred from one facility to another. Principle 19 says that a detainee "shall have the right to be visited by and to correspond with members of his family...."

Rule 92 of the Standard Minimum Rules outlines similar rights that ought to be afforded pre-trial detainees (those most akin to administrative detainees) that include the right to inform family members about the detention and "to be given all reasonable facilities for communication with ... family and friends, and for receiving visits from them."

Guideline 6 of the UNHCR's Guidelines on Detention of Asylum Seekers also underscores the importance for detained asylum seekers to contact regularly and receive visits from friends, relatives and legal counsel.

[195] Human Rights Watch interview with Felicia Villebardet, Liberty County Jail, Liberty, Texas, March 3, 1997.

[196] INS Detention Standard on Detainee Telephone Access, January 28, 1998.

[197] Ibid.

[198] In January 1998, the INS issued its own detainee visitation policies applicable to INS-run and privately contracted detention facilities. The policies allow for contact visits between detainees and visitors and allow visitation by children. They permit detainees to receive limited types of personal property, such as small religious items, glasses or address books. None of the policies, however, are currently binding on local jails holding INS detainees.

[199] Human Rights Watch interview with Capt. Harland Westmoreland, Euless City Jail, Euless, Texas, March 3, 1997.

[200] Human Rights Watch interview with Pedro Jimenez, Dallas immigration court, March 4, 1997.

[201] 8 C.F.R. 235.3(e).

[202] Jail officials interviewed by Human Rights Watch gave widely varying responses to questions about which medical services the INS covered. Some jail officials reported no monetary limit on care, others reported a limit of $200, while others said the only limits were on dental care or corrective eye care, such as glasses.

[203] See also Florida Immigrant Advocacy Center, Inc., Florida County Jails: INS's Secret Detention World, Miami, November 1997. The report provides many examples of inadequate medical care received by INS detainees in local jails in Florida. Complaints include unavailable services, delayed attention, poor dental care, no eye care, and retaliatory, and punitive actions against detainees who seek medical care.

[204] Article 25(1)of the Standard Minimum Rules for the Treatment of All Prisoners states that the medical officer "should daily see all sick prisoners, who complain of illness." American Correctional Association guideline 3-ALDF-4E-06 states, "[W]ritten policy and procedure requires that inmate's health complaints are solicited daily, acted on by health-trained correctional personnel...".

[205] Human Rights Watch interview with INS detainee, INS New Orleans District Office, Louisiana, March 24, 1997.

[206] Human Rights Watch interview with Calixto Palacios Fraga, Vermilion Parish Jail, March 20, 1997.

[207] Human Rights Watch interview, Liberty County Jail, Liberty, Texas, March 7, 1997.

[208] Human Rights Watch interview, Liberty County Jail, Liberty, Texas, March 7, 1997.

[209] Principle 24 of the U.N. Body of Principles.

[210] Human Rights Watch interview with INS detainee, DuPage County Jail, Wheaton, Illinois, April 3, 1997.

[211] Human Rights Watch interview with jail staff doctor, Denton County Jail, Denton, Texas, March 5, 1997.

[212] Human Rights Watch interviews with Long Le and Rodolfo Aragus Quintero, Denton County Jail, March 5, 1997.

[213] Principle 24 of the Body of Principles states that a proper medical examination should be offered promptly after admission into a place of detention and medical care should be provided whenever necessary. Article 24 of the U.N. Standard Minimum Rules provides for initial medical assessment after admission taking into account mental health needs and infectious diseases. INS's newly issued Detention Standards require initial screening for infectious diseases in INS-run and privately contracted detention centers, but once again, the detainees held in local jails are left unprotected by the new standards.

[214] Letter from A.S.V. to Human Rights Watch, Kern County Jail, Bakersfield, California dated May 25, 1998.

[215] Letter from H.T.P. to Human Rights Watch, Orleans Parish Prison, Louisiana dated June 19, 1997.

[216] Human Rights Watch interview with Roy Petty, Director of the Midwest Immigrants' Rights Center, Chicago, Illinois, April 2, 1997.

[217] Human Rights Watch interview with Terry Bretz, INS Supervisory Detention Officer, Broadview Service Staging Area, Broadview, Illinois, April 4, 1997.

[218] Human Rights Watch interview with Warden Don Knoll, DuPage County Jail, Wheaton, Illinois, April 3, 1997.

[219] Human Rights Watch interview with Roy Petty, Director, Midwest Immigrants' Rights Center, Chicago, Illinois, April, 2, 1997.

[220] U.N. Standard Minimum Rules, Article 22(3) states that "services of a qualified dental officer shall be available to every prisoner." ACA standard 3-ALDF-4E-23 states "...each inmate under direction and supervision of a dentist" should get "screening within 14 days of admission; dental hygiene services within 14 days of admission...and dental treatment not limited to extractions (emphasis added) within three months when the health of inmate would be adversely affected."

[221] Human Rights Watch interview with Musbah Abdulateef, Berks County Prison, Leesport, Pennsylvania, February 6, 1997.

[222] Human Rights Watch interview with Warden Don Knoll, DuPage County Jail, Wheaton, Illinois, April 3, 1997.

[223] Human Rights Watch interview with Joe Montesano, jail liaison officer, DuPage County Jail, April 3, 1997.

[224] Human Rights Watch telephone interview with Mary Baldwin Kennedy, director of Federal and Communications Division, Office of the Criminal Sheriff Orleans Parish, New Orleans, Louisiana, June 11, 1998.

[225] Human Rights Watch interview with medical staff, Clark/Frederick/Winchester Adult Detention Center, February 7, 1997.

[226] Human Rights Watch interview with Keo Chek, Clark/Frederick/Winchester Adult Detention Center, February 7, 1997.

[227] Article 22(1) of the Standard Minimum Rules states that at every institution one medical officer should have some knowledge of psychiatry. Article 25(2) says that the medical officer "shall report to the director whenever he considers that a prisoner's physical or mental health has been or will be injuriously affected by continued imprisonment or by any condition of imprisonment."

[228] ACA Standards 3-ALDF-4E-11, 12, and 13 require "mental health services for inmates." Comments to the guidelines further state that, "[A]n adequate number of staff should be available to deal directly with inmates who have severe mental health problems as well as to advise other correctional staff in their contacts with such individuals."

[229] Letter from Chen Sie En to Human Rights Watch dated June 27, 1997.

[230] Human Rights Watch interview with T.J., Krome Service Processing Center, February 27, 1997.

[231] Berks County Prison Report of Inmate Disciplinary Proceedings, January 22, 1997.

[232] Letter from Jay Carter, M.A., Psy.D., licensed psychologist, to Joseph Hohenstein, Meddah's immigration attorney, July 8, 1997.

[233] Letter from Robin Miller, M.D., resident psychiatrist, Harrisburg State Hospital, to Joseph Hohenstein, April 29, 1997.

[234] A copy of hospital rules sent to Human Rights Watch by Meddah state that hospital policy mandates that INS patients are "No Information/No Visitor" patients.

[235] The Antiterrorism and Effective Death Penalty Act of 1996 allows the INS to deport immigrants accused of engaging in or supporting groups who engage in terrorist activities based on secret evidence that neither the accused nor their attorneys are permitted to know or rebut.

[236] Human Rights Watch telephone interview with Yahia Meddah, Krome Service Processing Center, March 25, 1998.

[237] Human Rights Watch telephone interview with Yahia Meddah, Kendall Regional Medical Center, Miami, Florida, April 2, 1998.

[238] Letter to Robert A. Wallis, INS district director for Miami, from Alphonse Hayak, M.D., June 1, 1998.

[239] Human Rights Watch telephone interview with Yahia Meddah, Kendall Medical Center, Miami, Florida, April 2, 1998.

[240] Human Rights Watch interview with Carol Kolnichak, New Orleans, Louisiana, who was commenting on her difficulties getting access to her client, a Somali asylum seeker detained in Orleans Parish Prison.

[241] Section 292 of the Immigration and Nationality Act provides that in "any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person shall have the privilege of being represented (at no expense to the government), by such counsel...." In addition, ACA guidelines state that inmate access to counsel should be facilitated and that the jail should "assist inmates in making confidential contact with attorneys...such contact includes but is not limited to telephone communications, uncensored correspondence and visits. " 3-ALDF-3E-02.

[242] See generally, Margaret H. Taylor, "Promoting Legal Representation for Detained Aliens," 29 Connecticut Law Review 1647 (Summer 1997) for a thorough discussion of the development of immigration detainees' right to legal counsel and current obstacles to representation.

[243] There are often no local attorneys with any immigration experience when detainees are held in remote jails.

[244] "Immigration Judge Decisions in the First Five Months of FY98 By Custody and Representation Status," Executive Office of Immigration Review. Statistics for previous years are similar: in FY1997, 10.8 percent of those detained were represented in immigration court compared to 56.5 percent of non-detained individuals; in FY1996, 10.7 percent of detained individuals had legal counsel compared to 51.5 percent of the those not detained.

[245] Ibid. For example, 95.1 percent of individuals granted legal relief from deportation in immigration court between October 1997 and February 1998 had legal representation.

[246] The Notice to Appear is the charging document issued by the INS that lists the grounds on which the INS is trying to remove the individual from the United States.

[247] Human Rights Watch interview with JosÉ Reyes, Dallas County Jail, Dallas, Texas, March 5, 1997.

[248] INS Detention Standards regarding Detainees Telephone Access provide for "special access" calls to legal service providers that are attempts to obtain legal representation or are made in consultation regarding a detainee's expedited removal case. Even if the standards applied to local jails, they would not go far in enough in providing the access to counsel needed by detainee, since detainees held in rural jail are located so far from their attorneys that phone consultation may constitute the bulk of their immigration case preparation.

[249] Letter from Emanuel Obajuluwa to Human Rights Watch, Dallas County Jail, April 1, 1998.

[250] Human Rights Watch telephone interview with Emanuel Obajuluwa, February 20, 1998.

[251] Correspondence Denial Form dated February 19, 1998.

[252] Human Rights Watch interview, Krome Service Processing Center, Miami, Florida, February 27, 1997

[253] Human Rights Watch telephone interview with Abdallah Ali Mohammed, May 6, 1997.

[254] The ACA standard's official comments governing attorney visitation state that law students should be considered authorized representatives. In fact, law students are sometimes the only hope for indigent detainees who cannot pay for private attorneys and cannot find pro bono organizations to help them.

[255] Letter from Nicholas J. Rizza, national refugee coordinator, Amnesty International, U.S.A. to John B.Z. Caplinger, INS district director, New Orleans, Louisiana, November 6, 1996.

[256] The jail housed more than 150 INS detainees.

[257] Letter from Rebecca Feldman, attorney, Catholic Legal Immigration Network (CLINIC), to Human Rights Watch dated April 27, 1998.

[258] "Legal Aide Accused of Inciting Immigrants: Access Limited," Associated Press, February 16, 1998.

[259] 3-ALDF-3E-03. The guideline also states that they will have access to paper, typewriters and other supplies. Lack of access to photocopiers is also a common problem for detainees in local jails. Human Rights Watch received many letters from detainees in which they asked Human Rights Watch to copy and return enclosed jail reports or legal documents because they were unable to copy them within the jail. Nigerian detainee Emanuel Obajuluwa, held at Dallas County Jail, wrote to Human Rights Watch that no photocopying was available at the jail, not even for legal copies. "The INS was aware of this fact," he wrote "I personally told them, since I arrived here on Dec. 9, 1997 plus other detainees can attest to this fact who had been here longer than I (from two years or more) We keep them informed. They don't care." Letter from Emanuel Obajuluwa to Human Rights Watch, February 28, 1998.

[260] Human Rights Watch interview with S. Kent Dodd, INS facility director, Manatee County Jail, Bradenton, Florida, March 7, 1997.

[261] Human Rights Watch interview with Marion Dillis, INS liaison, Berks County Prison, Leesport, Pennsylvania, February 6, 1997.

[262] Letter from INS detainee held Orleans Parish Prison to Human Rights Watch dated July 30, 1998.

[263] Human Rights Watch tour of Orleans Parish Prison, New Orleans, Louisiana, June 4, 1998.

[264] Human Rights Watch's findings are supported by detention investigations and reports produced by other human rights and immigrant advocacy organizations. For example, the Women's Commission on Refugee Women and Children reported that a Chinese woman in Kern County Lerdo Detention Center in California was put in solitary confinement because she failed to use the pencil sharpener correctly, even though no one had ever explained the jail rules to the woman in a language she could understand. Another woman in the same facility was given disciplinary segregation for using too much toilet paper after having been denied a request for sanitary napkins. Women's Commission for Refugee Women and Children, Liberty Denied: Women Seeking Asylum Imprisoned in the United States, New York, April, 1997. See also, Florida Immigrant Advocacy Center, Inc., Florida County Jails: INS's Secret Detention World, Miami, November 1997.

[265] U.N. Standard Minimum Rules for the Treatment of Prisoners, Rules 27, 31, 33-35; International Covenant on Civil and Political Rights, Article 10. The Standard Minimum Rules specifically state that restraint instruments like handcuffs or chains should never be used as punishment.

[266] Specific provisions include that: alleged violations are investigated within twenty-four hours of the incident; pre-hearing detention is reviewed within seventy-two hours; disciplinary hearings are held as soon as possible, but no later than seven days after an alleged violation; inmates are allowed to present evidence on their own behalf, including witnesses; and a written record of the hearing is made with a copy given to the inmate. None of these standards are mandatory to receive ACA accreditation.

[267] Beauregard Parish Jail Disciplinary Report, April 17, 1997.

[268] Human Rights Watch interview with Capt. Roy Davenport, Denton County Jail, Denton, Texas, March 5, 1997.

[269] Denton County Jail Inmate History Report, February 23, 1997.

[270] Human Rights Watch telephone interview with Than T. Ta, Wharton County Jail, Wharton, Texas, June 2, 1998. The inmate handbook of the Wharton County Sheriff's Department states that at mealtimes, each inmate "will be properly dressed with [his] uniform completely buttoned from top to bottom...." It also states that "failure to comply with these rules...will result in disciplinary action being taken..."

[271] Human Rights Watch interview with Bashirudeen Atanda, DuPage County Jail, Wheaton, Illinois, April 3, 1997; letter from Bashirudeen Atanda to Human Rights Watch dated April 3, 1997.

[272] Human Rights Watch interview with Guy Mbenga-Mondundou, Berks County Prison, Lewisporte, Pennsylvania, February 6, 1997.

[273] Human Rights Watch interview with Moses Pessima, Berks County Prison, February 6, 1997.

[274] Human Rights Watch interview with Soeung Chhunn, Orleans Parish Prison, New Orleans, Louisiana, June 5, 1998.

[275] Letter from Min Phin to Human Rights Watch dated June 11, 1998, Orleans Parish Prison.

[276] Human Rights Watch interview with INS detainee, New Orleans, Louisiana. March 24, 1997.

[277] Human Rights Watch telephone interview with LuÍs Cortez, York County Prison, March 30, 1998.

[278] Human Rights Watch telephone interview with Luis Dutton, York County Prison, March 30, 1998.

[279] Principle 32 of the Body of Principles states that an "imprisoned person or his counsel shall have the right to make a request or complaint regarding his treatment...to the authorities responsible for the administration of the place of detention and to higher authorities." Principle 7 states that any act contrary to the rights and duties contained in the Body of Principles should be subject to appropriate sanctions and that impartial investigations upon complaint should be conducted.

[280] Human Rights Watch interview with A.L. INS District Office New Orleans, Louisiana, March 24, 1997.

[281] Human Rights Watch telephone interview with Sharon Deans, Liberty County Jail, Liberty Texas, March 7, 1997.

[282] Body of Principles, Principle 13.

[283] Body of Principles, Principle 14.

[284] Letter from Than T. Ta to Human Rights Watch, Wharton County Jail, Wharton, Texas dated March 29, 1998.

[285] Human Rights Watch interview with Warden George Wagner, Berks County Prison, Leesport, Pennsylvania, February 6, 1997.

[286] Human Rights Watch interview with Enrique Rodriguez Posada, Vermilion Parish Prison, Abbeville, Louisiana, March 21, 1997.

[287] Information based on Human Rights Watch telephone interviews with RamÓn Medina and other detainees at Pike County Jail between November 1996 and June 1997, and personal interviews at Pike County Jail on March 22, 1997. (Medina was in solitary confinement on the day of our visit and officials would not let us interview him).

[288] Human Rights Watch telephone interview with RamÓn Medina, Pike County Jail, November 21, 1996. Another detainee housed with Medina reported that he could see marks on Medina's left eye, his arms, and noted that "something is very wrong with his left wrist." Human Rights Watch telephone interview with Jorge Viera, Pike County Jail, November 21, 1996.

[289] Human Rights Watch interview with Sergeant Connely, Pike County Jail, March 22, 1997.

[290] Human Rights Watch telephone interview with Trish Peppy, INS Philadelphia District Office, April 17, 1997.

[291] Ibid.

[292] Human Rights Watch telephone interview with Miguel LÓpez, Pike County Jail, April 21, 1997.

[293] Human Rights Watch interview with Enrique Rodriguez Posada, Vermilion Parish Prison, Abbeville, Louisiana, March 21, 1997.

[294] Tensas Parish Detention Center medical log, November 6, 1996.

[295] Examination report and radiology diagnosis, E.A. Conway Medical Center, Department of Outpatient Services, November 7, 1996.

[296] Facsimile from Beverly Bourgue, LPN to Joe Finks requesting eye exam for Enrique Rodriguez, Vermilion Parish Sheriff's Office, December 11, 1996. Medical diagnosis in examination records, Dr. Emile Broussard, Young Eye Clinic.

[297] Human Rights Watch interview with John Caplinger, INS New Orleans district director, New Orleans, Louisiana, March 21, 1997.

[298] "Tensas Sheriff Indicted in Jail Beating," The Advocate, February 27, 1998.

[299] Ibid. A blackjack is a small, leather-covered or heavy rubber bludgeon.

[300] "Sheriff's Beating Case Ends in Hung Jury," Dallas Morning News, July 11, 1998.

[301] Human Rights Watch interview with John Caplinger, INS New Orleans district director, New Orleans, Louisiana, March 21, 1997.

[302] The summary of the incident is based on numerous telephone interviews with, and written statements from, INS detainees Jawaid Anwar, Anthony Pratt and Sergio Santos (all detained at Avoyelles Parish Prison on October 20, 1997) between November 1997 and August 1998.

[303] Human Rights Watch telephone interview with Jawaid Anwar, November 7, 1997. Sergio Santos, an INS detainee who shared a cell with Anwar on October 20 and an eyewitness to the incident, wrote that he "observed [a sergeant] physically assault Anwar and push him to the ground in the day room. Immediately after, Anwar was dragged out of the day room by several officers and physically beat Anwar in the hallway outside of lockdown cell 196." Affidavit of Sergio Santos dated October 24, 1997.

[304] Human Rights Watch telephone interview with Anthony Deveaux, Avoyelles Parish Prison, Marksville, Louisiana, June 2, 1998.

[305] Human Rights Watch interview with Amar Singh, Krome Service Processing Center, Miami, Florida, February 27, 1997.

[306] Because detained individuals submit asylum applications to the immigration court, the INS's Detention and Deportation Division claims that it does not know the number of asylum seekers in detention at any given time.

[307] Human Rights Watch interview with Chief Paul Trahan, Vermilion Parish Prison, Abbeville, Louisiana, March 20, 1997.

[308] Human Rights Watch interview with Terry Bretz, INS supervisory detention officer, Broadview Service Staging Area, April 4, 1997.

[309] Human Rights Watch interview with Harpal Singh, Krome Service Processing Center, Miami, Florida, February 27, 1997.

[310] Principle 11 of the Body of Principles states that " a person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority."

[311] Letter from Gregory Osnomi to Human Rights Watch dated April 18, 1998.

[312] Human Rights Watch telephone interview, Manatee County Jail in Bradenton, Florida, November 1997.

[313] Principle 20 of the Body of Principles says that "if a detained or imprisoned person so requests, he shall if possible, be kept in a place of detention or imprisonment reasonably near his usual place of residence."

[314] Human Rights Watch telephone interview with Robert Cortez, brother of INS detainee LuÍs Cortez, August 5, 1998.

[315] Human Rights Watch interview with Mohamud Hassan, New Orleans, Louisiana, March 22, 1997. Hassan claims that his back was bruised and his face was swollen after the beating, but the only medical care he received was an ice-pack. The attorney representing Hassan told Human Rights Watch that she visited her client the day after the incident and saw the bruises on his face.

[316] Human Rights Watch interview with Nestor Campos, New Orleans, Louisiana, March 23, 1997.

[317] Human Rights Watch interview with Kristine Marcy, senior counsel in the INS Office of Field Operations, Detention and Deportation, Washington D.C., May 29, 1998.

[318] For a thorough discussion of long-term INS detention, see Donald M. Kerwin, "Throwing Away the Key: Lifers in INS Custody," 75 Interpreter Releases 649, May 11, 1998.

[319] See Hermanowski v. Farquharson, C.A. No. 97-220L (D.R.I. June 1, 1998 Report and Recommendation by Magistrate) finding that the twenty-month detention of a Polish national for whom no travel document could be secured, violated his substantive due process rights; and Cholak v. INS, C.V. No. 98-365 (E.D. La. May 18, 1998) finding that the fourteen-month detention of an Iraqi national violated his procedural due process rights because the INS failed to properly weigh his liberty interest by failing to adequately consider all factors for release. See also Denny Walsh, "`Lifers' of INS Can't Go Home: Jailed Deportees Stuck in Legal Limbo," Sacramento Bee, July 28, 1998.

[320] Kerwin, "Throwing Away the Key..." p. 652. Kerwin notes the case of a Chinese asylum seeker with no criminal conviction who has been detained since November 1994.

[321] Human Rights Watch interview with A.L., INS District Office, New Orleans, Louisiana, March 23, 1997.

[322] Human Rights Watch interview with Kristine Marcy, May 29, 1998.

[323] Human Rights Watch interview with Mam Vang Du, Orleans Parish Prison, New Orleans, Louisiana, June 5, 1998.

[324] Letter to Human Rights Watch from Joseph Essel, Wharton County Jail, Wharton, Texas, November 14, 1997.

[325] INS Bond Recommendation recommending parole dated April 13, 1992.

[326] Letter to Human Rights Watch from Joseph Essel dated November 14, 1997.

[327] Letter to Human Rights Watch from Ohia Kalasho, Orleans Parish Prison, New Orleans, Louisiana dated June 7, 1998.

[328] Letter to Human Rights Watch from Tuan Truong, Nacogdoches County Jail, Nacogdoches, Texas dated June 8, 1998.

[329] Lawyers working with the Coalition to Support Cuban Detainees (CSCD) reported that in panel interviews in Pointe Coupee Parish Prison in Louisiana, they were unable to review detainees' INS files prior to the interviews. According to the director of the CSCD, review of the files is critical since clarification of past criminal records or past charges appears to make the difference between a positive or negative recommendation for release. Letter to Human Rights Watch from Nathaniel Burke, Executive Director, Coalition to Support Cuban Detainees, Miami, Florida, June 3, 1998.

[330] Human Rights Watch tour of Orleans Parish Prison, About Face Program leader, New Orleans, Louisiana, June 4, 1998.

[331]Written overview of the About Face Program distributed by the Orleans Parish Criminal Sheriff's Office, New Orleans, Louisiana, June 4, 1998.

[332] Ibid.