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The INS Issues Detention Standards Governing the Treatment of Detained Immigrants and Asylum Seekers
by Llewelyn G. Pritchard

In January, after more than four years in development, the Immigration and Naturalization Service's (INS) new detention standards took effect at 18 INS-owned and operated "service processing centers" and contract detention facilities, such as Corrections Corporation of America and Wackenhut facilities. Soon, the 36 standards will be phased in at the nine largest jails and the Turner Guilford Knight Correctional Center in Miami, which together hold more than 40 percent of the INS detainees in non-INS facilities. By the end of next year, the INS plans to have all facilities holding INS detainees in compliance with the new standards.

The INS designed the detention standards to benefit its burgeoning population of detained immigrants and asylum seekers. As a result of the 1996 immigration laws mandating the detention of certain immigrants and asylum seekers, the INS now detains more than 200,000 people annually at more than 900 sites, the majority of which are county and local jails. Immigration detainees have become the fastest growing segment of the incarcerated population in the United States. The INS currently budgets approximately one billion dollars for their detention and removal.

According to former INS Commissioner Doris Meissner, the standards will further the INS's goal of providing "safe, secure and humane conditions for all aliens in INS custody." American Bar Association (ABA) President Martha W. Barnett welcomed the standards as a way to provide access to counsel and due process for all detainees. "While there are several areas that need additional safeguards, the standards are a significant step forward," Barnett said, commending former Attorney General Janet Reno and former ABA President Philip Anderson, in particular, for their "tireless efforts in bringing these standards to fruition." Reno referred to the standards as one of the proudest achievements during her tenure.

The standards were designed, in part, to facilitate a climate conducive to greater pro bono representation of indigent detained immigrants and asylum seekers. Lacking the right to government-appointed counsel, an estimated 90 percent of detainees go unrepresented in their claims for relief from removal, including asylum seekers seeking refuge in the United States. A Georgetown analysis of Justice Department data found that applicants who secure legal representation win asylum more than six times as often as those who do not.

According to Barnett, asylum seekers "are here for their safety. They are seeking the shelter of our country. And all of the statistics, anecdotal and actual, tell us that having a lawyer is what makes a difference." "We have a substantially complex legal process. It is almost impossible that those not represented could understand the system well. And that can almost determine whether or not they are granted asylum," explained Andrew I. Schoenholtz, director of law and policies studies at the Georgetown Institute. Dahir Nur, a Somalian refugee detained more than nine months in a county jail outside Chicago until granted asylum, said, "When I won my case, that was the happiest moment of my life." Dahir credits his victory to his pro bono attorney secured through the Midwest Immigrant and Human Rights Center's pro bono program.

Highlights of the New Standards

The 36 standards are comprehensive, encompassing a range of issues including: access to legal services; religious services for detainees; medical care; marriage requests; and recreation. (For the full text of the detention standards, see the INS website at Under the new standards:

  • Detainees are entitled to eight hours of uninterrupted, private legal visitation seven days a week. Meals will be provided to detainees who are meeting with their legal counsel during mealtimes.
  • Detainees will not be strip-searched after attorney visitation without reasonable suspicion of contraband. However, the INS makes an exception for a few non-INS facilities that mandate strip-searches after visits. Under the new guidelines, persons held in facilities that mandate strip-searches may request a "noncontact" visit with their attorney to avoid being strip searched; otherwise, they may be strip-searched.
  • Detainees can make free, unmonitored, private phone calls for pro bono representation and to confer with consular officials through preprogrammed phone technology. (However, at the time of publication, most non-INS facilities did not yet have this technology.)
  • Detainees are entitled to at least one hour daily to use law libraries equipped with immigration and asylum-related materials and typewriters. The relevant forms and copying will be available to detainees to help them prepare their cases. Detainees will be allowed to assist one another in preparing their cases.
  • Family--including children--and friends can visit detainees for at least thirty minutes per visit on weekends and holidays.
  • Detainees may practice their religion and participate in group religious activities. The INS plans to set up chaplain programs at the 18 INS service processing centers and contract facilities to provide detainees' with access to religious services and individual counseling.
  • Attorneys will be allowed to provide "Know Your Rights" presentations to groups of detainees every day to educate them about their legal rights and other issues related to their cases.
  • Attorneys can call ahead to a facility to ascertain whether an actual or prospective client is detained at the facility.

Standards, Not Regulations

Despite these provisions, advocates for immigrants and asylum seekers voiced several concerns about the new standards. First, the new standards have not been issued as federal regulations and therefore do not have the force of law. Judy Rabinovitz of the American Civil Liberties Union Immigrants' Rights Project (IRP) said, "Advocates have been pushing for national regulations for a long time because of the horrendous conditions in INS detention facilities.... The [current] detention system is ad hoc."

While welcoming the new standards, Rabinovitz added, "Conditions may not improve even after the standards are in place because they do not have the weight of law and could prove impossible to enforce." Anderson, lead negotiator with the INS and the attorney general in developing the legal access standards, added that his "biggest disappointment" was that the new standards are not official regulations. "We have always pressed for regulations, and we will continue to do so," Anderson said.

Andrea Black, a Soros Justice fellow at the Florence Project, agreed. "The standards lack teeth," she said. In an editorial, the St. Petersburg Times recommended that the standards be upgraded to regulations and called on the INS to consider "stating that any facility violating the rules will lose its federal contract, or be forced to pay steep fines."

Sufficient Resources?

The INS has said that it would spend some one million dollars on training its staff and contractors to implement the detention standards in FY 2001. Advocates, however, said that the INS appears to lack the resources to implement and monitor compliance with the new standards. The INS's current FY 2001 budget prevents the agency from hiring the minimum 80 personnel necessary to achieve and monitor compliance with the new standards requested by the INS in their FY 2001 budget, but declined by the appropriations committee for Commerce, Justice, and State. Currently, the INS has ten full-time staff positions allotted to implementation.

"I have not seen the INS implement similar standards in the past," explained Hussein Sadruddin, a Soros Justice fellow at the Lawyers' Committee for Civil Rights Under Texas Law. "We'll see how they do with these," he added. In 1998, the INS issued 17 s tandards to govern its own facilities which they used as a foundation for creating the new standards to apply to all facilities. "Agencies serving people in detention have had trouble getting INS to monitor the 17 standards that have been in place since early 1998," said Esther Ebrahimian, assistant director for asylum concerns for Lutheran Immigration and Refugee Service (LIRS). LIRS helps to coordinate the Detention Watch Network, a national network of 100 agencies concerned about the detention of immigrants.

"Independent civilian oversight of jails and detention centers must be established to provide protection for the prisoners and for the many INS employees and correctional officers who would like to act humanely and also keep their jobs," Mark Dow, a New York-based writer working on a book about U.S. immigration detention, added.

INS official Karen Kraushaar, however, said that the INS is committed to implementing the standards fully and effectively. "We're aware that compliance won't happen overnight," she said. "The standards are not just suggestions. They will be written into contracts with the facilities, and we will be monitoring the compliance. Those facilities are at risk of losing their contract with us if they don't abide by the standards. Now, the training will be significant to ensure that the standards are integrated, accepted, and adopted throughout our detention system," Kraushaar said.

Issues Left Out

Advocates are also critical of issues not covered by the standards, such as the longstanding problem of the INS transferring detainees from facility to facility--often with no notice to their family members and attorneys. When notice does occur, it is post facto--after the detainee has been moved. Currently, the INS is not required to notify lawyers when detainees are transferred to another facility. Often, such transfers result in detainees being moved to remote locations far from legal representation.

In addition, the standards do not address the greatest obstacle to legal representation: detention facilities located in the hinterlands with little or no access for pro bono counsel or private attorneys in the area to represent detainees. "We're at the mercy of available space," explained John O'Malley, INS assistant commissioner for detention and deportation.

Finally, because the standards apply only to adult facilities, they will not apply to facilities holding children detained by the INS. Currently, the INS detains more than 4,600 children annually. Children are held at more than 95 facilities annually, only 25 of which are licensed, nonprofit shelter care facilities.

Human rights groups have charged that children detained by the INS are routinely separated from their parents, held at adult facilities, commingled with juvenile offenders at secure facilities (instead of nonprofit shelter care facilities), and subjected to unnecessarily strict limitations on visits, telephone calls, and movement.

According to John J. Pogash, the INS's juvenile director, however, "The kids we take into custody are under more scrutiny and have more review than any other cases in the service."

About The Author

Llewelyn G. Pritchard is chair of the American Bar Association's (ABA) Immigration Pro Bono Development and Bar Activation Project. The ABA was instrumental in developing the four "legal access" standards on visitation, access to legal materials, telephone access, and group presentations on legal matters.

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