Immigration Detention

A partir de matériaux ethnographiques récoltés auprès de demandeurs d’asile, de réfugiés et de « rejetés » (rejected) africains, dans un double terrain situé en Belgique et à Malte, cet article se propose de réfléchir la question du corps comme permis de circuler en contexte de « durcissement des politiques d’immigration et d’intégration » (Favell, 2010 : 44). Au travers des récits récoltés auprès de migrants n’ayant pu bénéficier d’un visa leur permettant d’entrer en Europe de façon légalisée, il apparait que, dans leur trajectoire migratoire, le corps est avant tout un corps résistant, un corps-héros, vainqueur dans la traversée des espaces géographiques que sont les routes insécurisées, les mers et les déserts. Corps-héros qui une fois la personne enfermée à l’arrivée en Europe perd de sa force au travers des vécus de déshumanisation progressif et d’exclusion des espaces géographiques et symboliques. La détention, espace d’enfermement qui vient matérialiser le non-droit à être mobile, à se déplacer là où l’on souhaiterait vivre, peut être analysé comme un espace transitoire de déshumanisation. En parallèle, le corps-souffrant, résultat parfois du broiement des temps d’enfermement, est porteur de possibilités de régularisation… Il peut devenir un espace transitoire de ré-humanisation, ceci dit une ré-humanisation partielle qui ne reçoit l’autre qu’au travers d’une identification à sa souffrance, par compassion. Ce corps broyé, ce corps-souffrant, expression matérielle des désillusions, des colères et des désespérances, permet à certains d’être reconnus semblables, sans être reconnus égaux pour autant…

This report is about concerns and complaints expressed by people detained by Immigration and Customs Enforcement (ICE) at the Otero County Processing Center (OCPC) located in Chaparral, New Mexico, an immigration detention facility managed by private prison contractor Management and Training Corporation (MTC).

Between August 2019 and June 2020, attorneys and volunteers with the El Paso Immigration Collaborative (EPIC) spoke to 232 individuals detained at OCPC. The primary purpose of the conversations was legal advocacy for unrepresented individuals. Out of the conversations with 232 persons, 153 raised concerns or troubling information about some aspect of their experience with the immigration process. When complaints were raised, EPIC staff and volunteers recorded this information. This report is an analysis of those records.

The 153 individuals who raised concerns come from 16 countries and speak eight different languages. This sample of individuals registered 259 concerns, complaints, or troubling issues. These are organized into 14 categories. The categories are merged into three procedural groups that pertain to different
aspects of the immigration process these individuals experienced: conditions in pre-ICE Detention (19%), conditions in ICE Detention (57%), and Legal issues while in ICE Detention (24%).

Out of the total number of complaints, the most common categories of concern were Medical issues while in ICE Detention (37%), Due Process matters experienced while detained (17%), and CBP (U.S. Customs and Border Protection) detention Conditions (14%) experienced prior to ICE Detention (“Pre-ICE Detention”). Notably, these top three areas of complaint pertain to the three major components of immigrant incarceration discussed in this report: detaining migrants upon arrival, imprisoning migrants at greater length, and deciding on their potential release or asylum cases.

In the current sample, 66% of the individuals spoken to raised a concern of some kind. This is substantially higher than the complaint rate obtained by ICE inspectors (4-8%) at the same facility. This discrepancy corroborates earlier criticism of the ICE inspections regime. We argue that ICE inspections
constitute performative compliance that gives the illusion that entities are conforming to the “agreed” rules of contract delivery. This reform-oriented approach to systemic problems ends up justifying and sustaining the troubling situations that evoke the need for reforms in the first place.

Among the concerns raised in the Pre-ICE Detention group, perhaps the most significant result is the increasingly long periods of time that individuals are held in “temporary” CBP custody, inside the so-called hieleras or “ice boxes”. The current sample shows that in 2019 people were being held in hieleras on
average (M=14, SD=15) seven times as long as they were between 2011-2015. The conditions in hielera holding cells are consistent with definitions of torture and constitute a form of “clean torture” that causes physical harm but may produce no immediately-visible physical marks.

Among the concerns raised in the ICE Detention group, Medical issues dominate and are varied in nature. Both mental and physical ailments go untreated. Moreover, mental ailments can be so acute that individuals turn to self harm and suicide attempts. The mental harms resulting from detention are
consistent with categories of mental suffering resulting from torture. Medical neglect is responsible for two recent deaths at OCPC, and the present sample demonstrates that the problems with medical care are ongoing. ICE’s response to the COVID-19 pandemic, discussed in multiple sections below, further
underscores the profound harm the agency causes to the health of those detained.

Among the ICE Detention Legal issues, Due Process violations top the list. Advocates and individuals in immigration custody and proceedings widely observe Due Process violations and concerns across various agencies including ICE, CBP, United States Citizenship and Immigration Services (USCIS) and the Executive Office of Immigration Review (EOIR).

Focusing largely on the issues raised by individuals with whom EPIC spoke, we affirm and underscore the conclusion that ICE detention is inherently abusive, the ICE inspections regime occludes and facilitates systematic abuse, and that detention presents severe legal obstacles that are designed to make it as hard as possible for individuals to succeed in their immigration cases. Certain facets of ICE detention, prolonged use of solitary confinement, and ongoing inhuman or degrading treatment by facility staff are consistent with definitions of torture.

Drawing on larger conversations, we further conclude that ICE detention is impervious to reform. In fact, prior reform attempts made the situation worse. Immigration detention does not make communities safe, it is costly, and it is unnecessary for its stated purpose of ensuring that individuals attend their
immigration proceedings. Importantly, the many instances of violence against and abuse of detained individuals reported here represent a pattern of behavior — not an aberration — that aligns with what is documented by detained and formerly detained individuals, and by our colleagues who support them
across the United States and beyond. Simply put, the violence and abuse cannot be explained away by “a few bad apples;” it is systemic. On these grounds, we argue that ICE detention, the use of CBP temporary holding facilities, and the practice of returning immigrants to Mexico to await a hearing
should be abolished.

The purpose of this chapter is to explore the Northwest Detention Center as representing a nexus of key aspects of the immigration debate. The NWDC is a private,
for- profit immigration detention center in the city of Tacoma, Washington. In this chapter, we will explore how the NWDC, symbolically and in practice, represents a poignant expression of key dynamics of the “immigration debate” in the United States today. To meet these aims we explore several interlocking areas. First, we present a brief description of the NWDC itself, providing the reader with context about its purpose and development. Second, we present the NWDC as representative of widespread trends toward the privatization of prisons, and immigration detention more specifically. Third, we explore the NWDC as being a powerful expression of the increased movement toward the criminalization of immigration. Fourth, we show how these trends have led to various micro- and macro- level human rights violations, and how these are perpetrated
by the NWDC. Fifth, we explore how advocacy and human rights groups have responded to the center and the realities it embodies.

This Global Detention Project Working Paper details how the banalisation of immigration detention is contested by international human rights mechanisms. Since the creation of the United Nations, the global human rights regime has provided a framework for the protection of all people, including those living in foreign countries. This paper assesses how national sovereignty and access to territory is mitigated by the universal nature and applicability of human rights and refugee protection standards. The authors comprehensively describe the normative framework governing immigration detention established in core international treaties and discuss how human rights bodies apply this framework when reviewing states’ policies and practices. Their assessment of the impact and implementation of fundamental norms reveals gaps in the international protection regime and highlights how states’ responses to this regime have shaped contemporary immigration detention systems.

Pre-removal detention is usually considered an administrative measure aimed at the facilitation of the removal of irregular migrants by preventing them from absconding during removal proceedings. The administrative nature of immigration detention implies that persons subject to this measure do not have access to the fair trial guarantees that criminal detainees are entitled to. However, the assessment of pre-removal detention under European Union and Swiss legislation demonstrates the penal nature of such detention despite its formal administrative classification. The penal nature of immigration detention is most easily revealed by the explicit deterrent—if not punitive—function it is supposed to fulfill in order to force foreigners to cooperate in their own removal procedure. Moreover, this penal nature may also be deducted from the more implicit purpose of immigration detention to punish irregular migrants and asylum seekers for criminal offences. The discrepancy between the administrative label of immigration detention and its punitive nature should be remedied. Arguably, the use of pre-removal detention should be limited to a truly administrative purpose, i.e. for very short periods of time allowing the state to prevent concrete risks of absconding once removal is about to be enforced. Alternatively, if the existing legal framework fails to prevent the use of immigration detention according to disciplinary or punitive functions, immigration detainees should be afforded guarantees comparable to those applied in criminal proceedings.