Human Rights and Immigration


[1] Detention-related human rights violations evoke the memory of Cold War and Latin American dictatorships — prolonged imprisonment of non-criminal defendants, unchecked executive discretion over who is detained and why, substandard conditions of confinement, midnight transfers to remote facilities, lack of access to legal counsel, etc.—such were the ugly realities of other places and another time. But right here and right now, similar human rights violations proliferate within the U.S. immigration system. Under a veil of national security and riding a wave of anti-immigrant sentiment, the executive branch has stripped away many of the procedural safeguards designed to protect the rights of non-citizens in immigration proceedings and has pursued law enforcement tactics that would not comply with due process and human rights standards in the most serious criminal proceedings.


[2] Historically, through the sanctuary movement, religious communities have been and continue to be leaders in advocating for fair and humane treatment of immigrants.

The Lutheran Immigration and Refugee Services (LIRS) is a leading advocate for alternatives to detention, as well as for humane treatment of detained immigrants and refugees in the United States. In addition to the tireless legal work and community outreach undertaken by LIRS staff and affiliates, a number of the Evangelical Lutheran Church of America Synod Bishops have visited immigration detention centers and testified before Congress on the concerns related to treatment of immigrants in detention.


[3] The contemporary immigration debate has emphasized abstract theories about the costs and benefits of our changing demographics rather than the actual experience of the immigration system. The process by which non-citizens seek relief to stay in the United States and the dramatic expansion of obstacles that prohibit their ability to obtain relief have affected millions of individuals and their families in tangible and life-altering ways. Among these obstacles have been a deterioration of basic legal protections and the violation of American ideals of due process. Without due process, human rights are rendered meaningless. Due process cuts to the heart of the U.S. legal system and its historical contribution to international human rights. This fatal combination of humanitarian and legal crises has found its clearest and most egregious manifestation in our immigration detention system.


America’s Hidden Detention System


[4] Immigrants in the custody of the Department of Homeland Security’s U.S. Immigration and Customs Enforcement (ICE) are held not for criminal reasons. They are held because the U.S. government intends to deport them.


[5] Under U.S. law, an immigration violation is not considered a criminal act. Rather, it is more akin to a traffic violation. As a result, violating immigration law does not result in criminal charges. The laws that govern the detention of individuals in criminal custody are different from those that govern criminal detention. Under U.S. law, immigration detention is not intended as a punishment but is used as a means of keeping custody of individuals until their cases are adjudicated, and they are deported. Ironically, though, this distinction results in policies that give the largely innocent men, women and children in immigration detention fewer protections than those in criminal detention.


[6] For example, because noncitizens in administrative detention are not charged with crimes, they are not entitled to have their rights read to them when they are arrested, as criminal suspects receive Miranda rights. Most detained immigrants have little knowledge of their rights once they have been arrested.


[7] Immigrant detainees also are not provided court-appointed counsel. They must find and pay for their own lawyers, or they are left to navigate our highly complex immigration laws on their own. Locating and hiring an attorney is next to impossible for many low-income immigrants. Access to counsel is further inhibited because most detention facilities are located in remote areas, making it difficult for detainees to communicate with family or to find a lawyer.


[8] Additionally, there is no term of sentence for immigration detention. Noncitizens may spend months or years in a jail while their cases make their way through the immigration system. These periods of custody are frequently arbitrary and abusive and violate international law.


[9] The isolation and length of detention are only two characteristics of the detention system that effectively put detainees’ very lives in danger. Investigations by The New York Times and The Washington Post have found that more than 80 immigrants have died in ICE custody since 2004. These reports have uncovered evidence of a broken system that cannot provide adequate care to those in its custody.


[10] The immigrant detention system is invisible to most Americans. Its lack of transparency leads to the denial of basic rights and violates both U.S. and international human rights laws.


Constitutional and International principles.[1]


[11] A host of constitutional principles and international laws govern the treatment of people in custody. In 2001, the Supreme Court recognized that, “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent.” Under the Fifth Amendment, all persons—citizens and noncitizens—are entitled to due process. All individuals in the United States — regardless of their legal status — are protected by the Eighth Amendment (made applicable to the states by the Fourteenth Amendment), which prohibits cruel and unusual punishment.


[12] International human rights law provides a unique and powerful framework to ensure that all individuals in custody be treated humanely, regardless of citizenship status. The Universal Declaration of Human Rights (UDHR), drafted by Eleanor Roosevelt and adopted by the United Nations General Assembly on December 10, 1948, provides protection for all individuals, including noncitizens. Subsequent international conventions refer to “all persons,” “all individuals” and do not limit protections based on citizenship.


[13] The international protection conventions that directly apply in the immigration context are the Convention and the Protocol Relating to the Status of Refugees (Refugee Convention and Protocol)[2]; and the Convention Against Torture (CAT).[3] The Refugee Convention and Protocol provide for protection for individuals fleeing persecution and/or torture in their home countries. Finally, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) provides human rights protections to all individuals regardless of immigration status.


[14] The protections detained immigrants receive under these conventions include the right to be informed of the charges against them, to have a court review of such charges without delay and to be treated humanely and without discrimination based upon race, national origin, religion or other factors.


[15] Article 10 of the International Covenant on Civil and Political Rights (ICCPR) states that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”[4] The United Nations High Commissioner’s Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers state that the detention of asylum seekers is “inherently undesirable.”[5] In addition, United Nations guidelines call for non-discrimination while in custody, prompt medical care and attention, access to hygiene and sanitary conditions, and health care that meets national and community standards.[6]


[16] The ICCPR, CAT and ICERD were all ratified by the United States. The UDHR is accepted as universal law; however, as the U.S. immigrant detention system has grown and the executive branch of the U.S. government has enacted harsher and harsher immigration enforcement policies, these international laws are seldom taken into consideration.


[17] What is occurring today is that individuals fleeing persecution in their home countries arrive in the United States to find themselves treated as criminals and detained for extended periods of time, often months or even years.


Legal Challenges to Detention of Noncitizens and Due Process Violations


A. Writ of Habeas Corpus

[18] For those noncitizens that languish in detention, petitions for “writs of habeas corpus” may be their only means of redress. Habeas corpus is a Latin term that means “you have the body.” A habeas case holds the government accountable by forcing it to defend its authority to detain a person. For example, the U.S. Supreme Court’s recent decision in Boumediene v. Bush held that prisoners at Guantanamo Bay have a constitutional right to challenge their detention through habeas petitions. The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.


[19] In one case, a class action habeas petition was filed on behalf of a number of individuals who had been ordered deported to their native countries, yet they languished in detention because their native countries would not accept them. These individuals were essentially being warehoused in immigration detention.


[20] An earlier Supreme Court decision ruled that individuals in this exact situation are entitled to court review of their continued detention. Once it was discovered that the government was not complying with the Supreme Court’s mandate, these detained individuals sued the government. This case went to trial; however, before the judge issued his decision, the government changed its policies and practices. Currently, in the Chicago area, the government is regularly reviewing the detention of this type of immigration detainee. Through successful litigation, the government was forced to follow the law.


[21] A current case of habeas corpus involves 17 Uighur men who have been detained in Guantanamo Bay for nearly seven years. They cannot be deported to China, their country of origin, because they would be persecuted or tortured. A federal court judge has granted the habeas petition and ordered the release of the Uighurs into the United States, but the government appealed the court’s decision. The government claims that immigration law prohibits the Uighurs from entering the United States, even though the U.S. government has admitted the men are not enemy combatants. Advocates argue that immigration law does not bar the Uighurs from being released into the United States. In fact, under habeas and international law, they should be released. Nonetheless, the men remain detained while advocates fight for them to be released into the United States, the only place they have left to go. Once they are allowed into the country, LIRS will assist these individuals in their resettlement in the United States.


B. Irrational decision-making; applying the wrong legal standard


[22] The rights of detained immigrants are often further eroded as the result of problems within the administrative court system that hears immigration cases. Under international human rights law, every individual is entitled to a fair day in court. Within the United States immigration adjudication system, that right is often violated.


[23] In one case, a young female refugee from Sierra Leone, Kahambu[7], appealed the immigration court’s decision to deny her protection under the Convention Against Torture. The young woman had come with her mother to the United States after she witnessed the murder of her father by rebels. She had gone to school and had trained to be a nurse. After being raped by an acquaintance, she became depressed and turned to drugs. She was eventually caught, convicted and sentenced to jail time. In jail, she was diagnosed with Post-Traumatic Stress Disorder. The prosecuting attorney in the case recognized the unusual circumstances that the woman had experienced and her minimal involvement in the drug offense and recommended against prison. But as a result of the conviction, Kahambu lost her refugee status and was detained and put into deportation proceedings. She fought to remain in the United States because she would be subject to torture if she returned to Sierra Leone. The immigration judge decided her crime was “particularly serious” and consequently denied her relief under the Convention Against Torture.

[24] More than a year later, after Kahambu appealed her case to federal court, the U.S. Seventh Circuit Court of Appeals held that the immigration judge had applied the wrong legal standard and had erred in rejecting Kahambu’s fears of torture. Kahambu eventually received protection, but only because she’d had the opportunity to seek judicial review. She had been detained for nearly three years.


[25] In another case, an asylum seeker was detained for several months while his case went through the administrative court system and an appeal to the federal courts, following an irrational decision by an immigration judge. The man had fled to the United States from Liberia to escape the persecution that he had suffered because he was gay. The immigration judge rejected his asylum claim because he had not disclosed his sexual orientation to immigration officers when he first had arrived at O’Hare International Airport. Ultimately, the federal court ruled that it is not reasonable to expect asylum seekers, fleeing persecution based on sexual orientation, to discuss their sexual orientation-based persecution at their initial interview. It was a historic ruling; however, the ruling came only after the man had been detained for more than a year.


[26] Detained immigrants often are denied the right to appear in person before an immigration judge—their hearings are conducted via video teleconference. In a 2008 decision, the court held that an asylum seeker was denied due process because she was forced to appear via video, and she was denied the right to examine evidence that the government offered against her.[8] This decision was the first to specifically identify video teleconferencing as responsible for violating due process.


[27] In another case, a mother and her six-month old daughter entered the United States to be reunited with the father of the baby—the fiancé of the mother. In a good faith effort, the family erroneously completed the visa application form. Based on that error, the immigration judge ordered her to be deported and permanently exiled from the United States. The woman appealed her case to the federal court of appeals, which found that the immigration court erred when it ordered the woman deported based on a narrow interpretation of the statute that, according to the court, “only a consummate bureaucrat could earnestly defend.” In this case, the mother spent nearly two years in jail, separated from her baby and her fiancée. As the court put it: "... it seems that Atunnise’s 'no' answer to one confusing bullet point is the reason she has been detained in a cell for two years.”


C. Access to the courts


[28] The above cases clearly illustrate the need to have a higher judicial court review decisions made by administrative courts overseen by the executive branch. Time and again, policymakers who oppose immigrant rights have surreptitiously tried to undermine the rights of immigrants through the elimination of judicial review.


[29] We have seen a determined effort to gradually chip away at the constitutional protections for noncitizens. Detention is now used as the primary enforcement mechanism. Detention deters individuals from exercising their legal rights. With the lack of transparency and accountability, we, as citizens of the United States, are unaware of the gross violations that are occurring in our own backyard. When asylum seekers and refugees seeking protection are detained, the government has the right to exercise its discretion and release them from detention. In far too many cases, individuals are not released. The discretion is not exercised favorably, resulting in individuals being detained for months or even years with limited access to the courts.


[30] We have seen a separation between the rights of citizens and those of noncitizens. Within a human rights framework, we are able to eliminate that distinction when we think of immigrants, refugees and asylum seekers as humans who have human rights. By framing the rights of immigrants, refugees and asylum seekers as human rights, we are able to respond to violations of their rights beyond the U.S. Constitution and look at this from a universal human rights perspective. This perspective is especially important as judicial review for noncitizens is rapidly being diminished inside the United States.


How you can help


[31] I invite you to engage in the movement to ensure the protection of human rights of immigrants, refugees and asylum seekers by visiting individuals in immigration detention and monitoring conditions; by observing immigration hearings, especially those conducted via video teleconferencing; by speaking with members of your congregation/communities about the need for human rights to be respected for all individuals; by communicating with members of your congressional delegation to express your concern about the treatment of noncitizens.


Does the current U.S. immigration system violate human rights principles?


[32] Immigrants, refugees and asylum seekers are not respected as human persons in the current immigration system. Some of the challenges they face are due to abuses within the system that urgently need to be corrected. Others need to be addressed on a case by case basis. Immigrants need legal counsel. Without lawyers, basic fundamental rights are violated: a fair day in court; freedom from arbitrary detention; humane and respectful treatment for and the inherent dignity of the human person. As United States citizens, it is our responsibility to safeguard and restore both the principles and the practice of those inherent rights.




[1] For further discussion on this, see Susan Gzesh, America’s Human Rights Challenge. Washington, D.C. Migration Policy Institute, 2006.



[2] The U.S. has not ratified the Convention, but ratified the Protocol that incorporated the Convention by Reference, November 1, 1968.


[3] Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment arts. 2

and 16, December 10, 1984, 1465 U.N.T.S. 85 (Entered into force June 26, 1987).


[4] International Covenant on Civil and Political Rights art. 10, December 19, 1966, 99 U.N.T.S. 171. (Ratified by the U.S. in 1992).


[5] UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers,” United Nations High Commissioner for Refugees (February 1999), Geneva, available at Although UNHCR’s guidelines are not binding, they represent how UNHCR, the agency charged with supervising the application of the Refugee Convention believes asylum seekers should be treated.


[6] See, e.g., United Nations Standard Minimum Rules for the Treatment of Prisoners, May 13, 1977, Economic and Social Council res. 2076 (LXII); Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment G.A. res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988).


[7] Pseudonym has been used to protect the individual’s identity.


[8] Rapheal v. Mulkasey, __ F.3d __, 2008 WL 2600798 (7th Cir. July 2, 2008).


© February 2009

Journal of Lutheran Ethics

Volume 9, Issue 2