International law prohibits arbitrary detention
- • The policy of mandatory detention strips immigration judges of the authority to determine during a full and fair hearing whether or not an individual presents a danger or a flight risk. Certain statuses or previous convictions automatically trigger mandatory detention without affording non citizens an opportunity to be heard as to whether or not they merit release from custody.
• The U.S. government fails to provide for meaningful individualized assessments of the need for detention by an independent or judicial authority.
• Many individuals held in detention after being ordered deported cannot be easily repatriated, for reasons that include lack of proper documentation, statelessness or lack of diplomatic relations between the U.S. and their country of origin. This can result in indefinite detention without a clear release date.
• Immigrants indefinitely detained are left uncertain of their status, their rights and their futures.
• Indefinite detention also subjects the families of detained immigrants to the agony of not knowing when their loved one will be released or removed.
• Detention, without a release date in one's future, further exacerbates existing mental health problems and re-traumatizes individuals who have been subjected to torture in their home countries.
Applicable Human Rights Instruments:
• The freedom from arbitrary arrest or imprisonment is recognized by several international human rights documents which are violated by a policy of both mandatory detention and indefinite detention.
• “Everyone has the right to liberty and security of person,” and “no one shall be subject to arbitrary arrest or detention” (Article 9-1 ICCPR).
• Mandatory and indefinite detention violate international laws that state it shall not be the general rule, release should be preferred with guarantees to appear for trial (Article 9-3 ICCPR). Some alternatives to detention should be preferred.
• A person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority (Principle 11-1).
• A detained person shall have the right to defend himself or to be assisted by counsel (Principle 11-1).
• A detained person and his counsel shall receive prompt and full communication about the detention decision (Principle 11-2).
• An authority shall be empowered to review as appropriate the continuance of detention (Principle 11-3).
• Anyone has the right to be heard by a court on the lawfulness of the detention and order the release if the detention is not lawful (Article 9-4 ICCPR).
• A lawful immigrant may be expelled only in pursuance of a lawful decision and shall be allowed to submit the reasons against his expulsion and to have his case reviewed by the competent authority (Article 13 ICCPR).