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  • Blogging: Solitary Confinement of Immigrant Detainees by Danielle L. C. Beach-Oswald

    Bloggings on Immigration Law

    by Danielle Beach-Oswald

    Bloggings: Solitary Confinement of Immigrant Detainees, by: Danielle L. C. Beach-Oswald

    Solitary confinement is one of the most severe punishments that can be levied against a prisoner or detainee.  Yet “any given day,” according to a recent article in the New York Times, approximately 300 immigrants are held in solitary confinement at Immigration and Customs Enforcement (ICE) detention centers across the country. Of those held in solitary, the Times continues, “Nearly half are isolated for 15 days or more, the point at which psychiatric experts say they are at risk for severe mental harm, with about 35 detainees kept for more than 75 days.”  (Emphasis added.)  While the conditions of confinement vary, detainees facing solitary confinement have reported to being locked up alone for 22-23 hours a day, in windowless 6-foot-by-13-foot cells.  The reasons given for detainees’ isolation range from a belief that they pose a threat to other detainees, to minor “disciplinary infractions,” to protection from potential violence by other inmates. 

    Based on oral accounts from prisoners, it seems that in many cases the practice of solitary confinement is unwarranted, excessive, and may amount to torture.  Because of the lack of a independent, transparent monitoring system for the detention of immigrants, there are serious questions regarding accountability for detainee abuse.  The reported effects of solitary confinement include: post-traumatic stress disorder, paranoia, depression, difficulty sleeping, and nightmares.  In addition, according to the Times, detainees in solitary often suffer mental breakdowns that can include self-mutilation and even suicide as a result of prisoners’ deprivation of meaningful human contacts with others.  Such conditions are likely to be especially traumatic for immigrants, especially victims of human trafficking and detainee asylum-seekers who have already suffered or fear future torture from authorities in their countries of origin.  The immigrant population is in many ways the most vulnerable to abuse, especially because they often have family members who are illegal and afraid to complain or seek assistance.  Moreover, unlike criminal detainees, immigrants do not have a right to free legal counsel, and many detainees cannot afford legal assistance. 

    According to a September 2012 report by the National Immigrant Justice Center (NIJC) and Physicians for Human Rights (PHR), part of the problem with respect to immigrant detainees stems from the fact that, “Most immigration detention centers are not dedicated facilities, meaning they hold both immigrants and criminally sentenced individuals,” leading detention center officials to rely on “local correctional policies” regardless of whether a detainee is considered dangerous or has been accused of any crime.  Describing the use of solitary confinement as “often arbitrarily applied, significantly overused, harmful to detainees’ health, and inadequately monitored,” the NIJC and PHR report note that detainees frequently have little to no access to legal counsel or their families and often do not speak English, leaving them few if any means by which to appeal their treatment.

    Because many immigrant detainees are being held under administrative and not criminal justifications, it is reasonable to question the need for many immigrant detainees to be held in detention centers at all.  Because such immigrants are being held under civil and not criminal charges, they are not supposed to be punished, yet they languish in prisons for indefinite amounts of time, isolated from family members or legal counsel.  The “supervised” release of hundreds of “low-risk” immigrant detainees due to budget cutbacks resulting from the federal sequester, for example, has raised the question in some quarters of whether those individuals’ detentions were necessary or justified to begin with.  In this context, the widespread use of detention is itself frequently unnecessary, inhumane, and expensive, especially because of the availability of other reliable, affordable, and compassionate alternatives.  Key recommendations of the NIJC-PHR report, for example, include a call on Congress to prohibit solitary confinement of immigrant detainees as well as “end” or strictly curtail “mandatory detention laws.”

    As the Obama administration has increased enforcement, the immigration detention population has swelled; it has increased by nearly 85 percent since 2005.  Once detained, there is no set date of release and detainees are transferred across state lines, often leaving family members without access to their loved ones. 

    Encouragingly, the renewed focus on solitary confinement has drawn the attention of Homeland Secretary Janet Napolitano, who affirmed earlier this week that “solitary confinement should be the exception, not the rule” and stated that she planned to undertake a review of the process.  As of today, it remains unclear when such a review will take place or when any changes will be made in the existing scheme of solitary confinement and detention of immigrants.  While Congress has legitimate goals of increasing enforcement of its immigration laws, such prioritizes should no longer curtail the rights of illegal immigrants facing detention. 


    Bloggings: Same-Sex Spouses' Right to Equal Protection

    Same sex marraige

    Recent polls and statements by political leaders including President Obama demonstrate a growing trend in favor of legalizing same-sex marriage. As of this writing, same-sex marriages are nationally recognized in 13 countries worldwide. Nine states and the District of Columbia allow gay marriage. Nevertheless, current laws in the majority of U.S. states and at the federal level continue to deny same-sex married couples a wide range of rights and privileges enjoyed by couples in ‘traditional’ opposite-sex marriages. In this context, this week the United States Supreme Court heard two cases challenging the constitutionality of state and federal prohibitions on recognizing same-sex marriage, the outcomes of which will have major implications for bi-national same-sex spouses.

    On March 26, the Court heard oral arguments in the case of Hollingsworth v. Perry, which challenges California’s Proposition 8. In 2008, California voters’ passage of Proposition 8 overturned a State Supreme Court ruling legalizing same-sex marriage and briefly allowing same-sex couples to marry in California. Later federal rulings overturned Proposition 8, but same-sex marriages have so far not been reinstated, pending a decision by the nation’s highest court. The Supreme Court could rule that same-sex couples have a right to marriage equal to that of opposite-sex couples, thus potentially overturning anti-same-sex-marriage laws in every state across the country. This approach, if taken, would be a huge success for marriage equality, thereby creating uniformity amongst states in granting same-sex couples equal rights under the law. However, the Court could also issue a more narrow ruling limiting the right to marry only to California, or more broadly to states including California that allow civil unions granting every right conferred by marriage without the title itself. Alternately, the court could deny standing to Proposition 8’s proponents (California’s governor declined to appeal the lower court ruling) on the grounds that they are not directly harmed by the legalization of same-sex marriage and therefore are ineligible to bring the case to begin with, in which case same-sex marriage could be legalized in California but would not be extended to any other state. Lastly, the court could deem Proposition 8 legal, thereby reinstating the law’s ban on same-sex marriage in California.

    On March 27, the Court heard the second of the two marriage equality cases. United States v. Windsor was brought as a challenge to the federal Defense of Marriage Act (DOMA), which was signed into law by President Bill Clinton, who recently argued in a Washington Post op-ed that he now believes the law is unconstitutional and should be struck down. The main argument against DOMA in the Windsor case is that the federal government is denying same-sex couples equal protection under the law by its failure to grant federal recognition and benefits to same-sex spouses who were wed in states where same-sex marriage is legal. Just as California’s governor has opted not to defend Proposition 8, the Obama Administration has stated that it believes DOMA (and Proposition 8) unconstitutional and has opted not to defend the law, but nevertheless requested that the issue was important enough that the Supreme Court should review the case. As a result there is a question of standing in United States v. Windsor as well, but most observers believe that the Court will make a ruling one way or the other in this case.

    According to the gay rights organization Immigration Equality, current regulations under DOMA mean that more than 1,100 federal programs and benefits are unavailable to married same-sex couples in the United States. The most important issue at stake from an immigration standpoint, however, is that citizenship rights cannot currently be extended to a non-citizen by virtue of his/her marriage to a same-sex American spouse. In effect, U.S. citizens with same-sex partners have been denied the right of petitioning for their spouses and have been largely powerless when their spouses face deportation. Such citizens have had to choose between remaining in the States without their husband or wife or leaving the U.S. in order to stay together. Should the Court strike down the section of DOMA currently under review, Americans in same-sex marriages with non-citizens would for the first time be able to sponsor their husbands and wives for legal status and eventual American citizenship. A narrow ruling by the Supreme Court striking down DOMA would allow same-sex marriage only in those states where courts have also deemed its prohibition unconstitutional, but a broader decision could void the unjust effects of DOMA countrywide.

    Assuming the justices grant standing in either Hollingsworth v. Perry or United States v. Windsor, the ideologically divided court’s deciding vote in both cases is expected to rest with Justice Anthony Kennedy. The outcome of the cases will not be known until the Court’s decisions are released (likely sometime in June). However, media reports based on this week’s proceedings have suggested that Kennedy, along with the Court’s ‘liberal wing,’ appears ready to strike down the portion of DOMA currently being challenged, ruling it unconstitutional on equal protection grounds.  I remain hopeful that the day will soon come when U.S. citizens in same-sex partnerships will be allowed equal rights under federal law and finally be able to petition for their non-citizen husbands and wives. It has been long overdue, but until DOMA’s ban is overturned, family-based immigration laws will continue to be unjustly denied to U.S. citizens in same-sex partnerships.

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    About The Author

    Danielle Beach-Oswald is the current President and Managing Partner of Beach-Oswald Immigration Law Associates in Washington, DC. Ms. Beach utilizes her 19 years of experience in immigration law to help individuals immigrate to the United States for humanitarian reasons. Born in Brussels, Belgium, Ms. Beach has lived in England, Belgium, Italy and Ivory Coast and has traveled extensively to many countries. Ms. Beach advocates for clients from around the world who seek freedom from torture in their country, or who are victims of domestic violence and trafficking. She has also represented her clients at U.S. Consulates in Romania, China, Canada, Mexico, and several African countries. With her extensive experience in family-based and employment-based immigration law Ms. Beach not only assists her clients in obtaining a better standard of living in the United States, she also helps employers obtain professional visas, and petitions for family members. She also handles many complex naturalization issues. Ms. Beach has unique expertise representing clients in immigration matters pending before the Federal District Courts, Circuit Courts, Board of Immigration Appeals and Immigration Courts. She has won over 400 humanitarian cases in the United States. Her firm's website is www.boilapc.com.

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
    Comments 1 Comment
    1. Lynn Atherton Bloxham's Avatar
      Lynn Atherton Bloxham -
      Very informative (though depressing)! Writing about these things as I do, I am aware that practicing law and handling cases is far more challenging. A tangled web. thank you!
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