Amicus Argues that U.S. Immigration Detention Policies Violate International Human Rights Obligations

Washington, D.C.Human Rights First along with Patterson, Belknap, Webb, and Tyler LLP filed an amicus brief in the Supreme Court case of Jennings v. Rodriguez, arguing that U.S. international human rights obligations—including under the International Covenant on Civil and Political Rights (ICCPR)—require individualized assessments and court review of detention for asylum seekers and immigrants held in U.S. immigration detention. The brief was filed on behalf of a group of amici who are experts in the field of international human rights law and refugee law, including former and current members of the United Nations Human Rights Committee, the former United Nations Special Rapporteur on Torture, and leading scholars on the application of international human rights law to asylum seekers and migrants.

“The United States is a nation that cherishes liberty and has pledged, through its treaty commitments, to protect all persons from arbitrary detention and to provide court review of decisions to hold people in detention,” said Human Rights First’s Eleanor Acer. “Yet the U.S. government is arguing that asylum seekers and immigrants can be held in detention for six months or longer without even an immigration court custody hearing. The Obama Administration is detaining more asylum seekers and immigrants than ever before. Many of these individuals languish in detention for months, and in some cases years, in violation of U.S. treaty obligations.”

Jennings v. Rodriguez is on appeal from the ninth circuit and will impact a significant number of asylum seekers and migrants who are denied access to immigration court bond hearings under current rules, except within areas covered by the U.S. Courts of Appeals for the ninth and second circuits. In those areas, migrants have access to immigration court bond hearings though only after they have already been held in U.S. immigration detention for six months. The Supreme Court will review the ninth circuit’s finding that certain individuals in immigration detention, including “arriving” asylum seekers and certain other immigrants subject to mandatory detention, must be provided with an immigration court bond hearing after being held in U.S. detention for six months. Respondents are represented by the ACLU.

Human Rights First has long-advocated that “arriving” asylum seekers and others should have access to immigration court custody hearings. The U.S. government is seeking to prevent these hearings, even for those who have been detained for six months. While Article 9 of the ICCPR requires individualized assessments of the necessity, reasonableness and proportionality of continued detention, as noted in the amicus brief, Human Rights First has reported that U.S. Immigration and Customs Enforcement’s (ICE) detention and parole decisions for “arriving asylum seekers” often fail to actually involve assessments of the necessity of detention in each particular individual’s case, and leave asylum seekers detained unnecessarily for months and sometimes for one year or longer. The United States is also obligated to limit the detention of asylum seekers under Article 31 of the 1951 Convention Relating to the Status of Refugees and its Protocol.

Last week it was reported that the number of individuals held in immigration detention has hit a new record-high. ICE announced that the number of individuals held in detention exceeds 42,000.

The amicus brief was filed the same day that the United Nations Working Group on Arbitrary Detention issued its preliminary findings after its October 2016 visit to the United States. The Working Group stated that “Individualised review should comply with procedural requirements of international law, including: the requirement that the State bear the burden of proof to demonstrate that it has a legitimate interest in detention, the provision of automatic and periodic bond hearings, and the requirement that immigration judges consider the accrued length of detention in deciding whether to release an individual.”

Amici Curae International Law Scholars include: William Aceves; Denise Gilman; Guy S. Goodwin-Gill; James C. Hathaway; Manfred Nowak; Sarah Paoletti; Nigel Rodley; Martin Scheinin.


Published on October 25, 2016


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