Immigration Detention may Constitute Torture & Ill-Treatment

2. The U.S. Immigration Detention Systems Systemically Subjects Migrants to Treatment that may Constitute Torture and Other Ill-Treatment

Torture and other cruel, inhuman, and degrading treatment is absolutely prohibited under international law. While the Convention against Torture is the primary convention concerned with the eradication of torture, the prohibition against torture is also found in numerous other international treaties. The highly ratified ICCPR states, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The prohibition on torture and other ill-treatment is also found in customary international law. As a State party to the Convention against Torture, the ICCPR and other relevant treaties, the U.S. is legally obligated to root out torture and CIDT in all of its systems. For an act to amount to torture, there must be (1) severe pain or suffering, whether physical or mental; (2) intentionality; (3) specific purpose; and (4) official capacity.

Despite U.S. international legal obligations to prevent torture and other ill-treatment, the U.S. immigration detention system is replete with violations of these obligations.

• The United States’ Use of Solitary Confinement Within Immigration Detention Centers Violates the Prohibition of Torture and Other Ill-Treatment.
  
  International law standards have consistently affirmed that the use of solitary confinement should be reserved as a measure of last resort due to the severe pain and suffering it may cause to the detainee. In 2020, U.N. Special Rapporteur on Torture Nils Melzer reaffirmed that solitary confinement exceeding 15 days is a form of torture or other ill-treatment due to its prolonged nature. 
  
  In 2019, the International Consortium of Investigative Journalists analyzed more than 8,400 records describing the placement of migrant detainees in solitary confinement in facilities operated by ICE, and the data showed that more than half of the solitary confinements exceeded 15 days. Additionally, rather than seeking appropriate care for migrant detainees with mental illness concerns or disabilities in immigration detention centers, detention center staff regularly resort to putting these detainees in solitary confinement. Moreover, LGBTQI or otherwise gender nonconforming migrant detainees are disproportionately subjected to solitary confinement as “protective custody.”
• The United States’ Failure to Provide Appropriate Medical Treatment and Care to Migrants in Immigration Detention Violates the Prohibition of Torture and Other Ill-Treatment.
  
  Under international law, a failure to provide adequate medical treatment and care to detainees in immigration detention can amount to a violation of the prohibition of torture and other ill-treatment. This obligation arises out of a state’s duty of care to detainees, which includes the positive obligation to “secure physical and psychological integrity and the well-being of all detainees.”
  
  Based on an independent review of ICE detainee deaths conducted in 2018 by medical experts, Human Rights Watch documented three major health care failings in immigration detention centers: (1) unreasonable delays in providing care, (2) poor practitioner and nursing care, and (3) botched emergency responses. Evidence of substandard care in almost all of the cases reviewed and concluded that “medical lapses likely led or contributed to . . . the deaths.” 
• The United States’ Failure to Prevent Sexual Abuse Against Migrants in Immigration Detention Violates the Prohibition of Torture and Other Ill-Treatment.
  
  The international community has recognized rape and other forms of sexual violence as constituting torture and other ill-treatment. The Committee Against Torture and the U.N. Special Rapporteur on Torture have both recognized that rape carried out by or at the instigation of or with the consent of public officials constitutes torture.
  
  Complaints of sexual assault in U.S. immigration detention centers are not new. As early as 1998, the Immigration and Naturalization Service (“INS”), the predecessor to ICE, was defending lawsuits by immigration detainees alleging rampant sexual abuse. Despite years of awareness of the issue of rampant sexual assault in immigration detention centers, the problem continues unabated. Not only have ICE and the private prison companies that run the detention centers failed to keep migrant detainees safe from sexual abuse, they are regularly the perpetrators of the harm.
• The United States’ Use of Immigration Detention and Ill-Treatment to Coerce Migrants into Withdrawing their Claims to Stay in the U.S. Violates the Prohibition of Torture and Other Ill-Treatment.
  
  The prohibition of torture and other ill-treatment includes the principle of non-refoulement “which prohibits States from ‘deporting’ any person to another State’s jurisdiction or any other territory where there are substantial grounds for believing that he or she would be in danger of being subjected to torture or ill-treatment.” The U.N. Special Rapporteur on Torture has expressed concern with the use of “refoulement in disguise” where immigration detention and its associated policies are intentionally designed and used “to prompt migrants to withdraw their requests for asylum, subsidiary protection or other stay and agree to ‘voluntary’ return in exchange for their release.” In this same vein, the U.N. Special Rapporteur on Torture has recognized that ill-treatment or grossly inadequate detention conditions may amount to torture or ill-treatment when intentionally imposed to coerce migrants into withdrawing legal claims they may have and agreeing to “voluntary” deportation. 
  
  Family separations at the U.S. southern border have been used to deter asylum-seekers from coming to the U.S. and to compel those already in the country to give up their claims and return to their countries-of-origin.  Moreover, the conditions in U.S. Customs and Border Protection (CBP) detention centers located at the border are grossly inadequate. High Commissioner for Human Rights Michelle Bachelet stated in 2019 that she was “appalled by the conditions in which migrants and refugees – children and adults – are being held in detention in the United States of America after crossing the southern border.”
  
  Even migrants not detained along the southern border in Border Patrol facilities are subjected to ill-treatment and abuses with the purpose of coercing and forcing the withdrawal of legal claims to stay in the U.S. In October 2020, the Southern Poverty Law Center along with several other immigrant rights organizations submitted a complaint to DHS, the DHS Office of Inspector General, and the Office of Civil Rights and Civil Liberties condemning the use of force to coerce Cameroonian asylum seekers into signing their own deportation papers. The complaint alleged that eight Cameroonian migrants detained by ICE at the Adams County Correctional Center in Natchez, Mississippi were subjected to forcible coercive tactics in an attempt to secure signature of removal documents. The Cameroonian migrant detainees reported graphic abuses at the hands of detention center staff and ICE officers including being strangled, having their necks pressed into the ground, having their fingers broken, being dragged across the ground, and being threatened with death. Similar physical violence for the same purpose was used against detainees at the Jackson Parish Correction Facility and the Winn Correctional Center, both located in Louisiana.

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