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

  1. #1

    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.


    image source














    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.

  2. #2
    Lynn Atherton Bloxham
    Guest
    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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