ABA Issues Model Standards to Guide Reform of US Immigration Detention System

On August 6, 2012, the American Bar Association’s (ABA’s) House of Delegates adopted an extensive set of standards to guide reform of the US immigration detention system.  The standards provide a framework on how a civil detention system should operate to the US Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE).

The ABA has long worked to reform the US immigration detention system. In the late 1990s, the ABA collaborated with the US Department of Justice (DOJ) and the former Immigration and Naturalization Service (INS) to craft the first meaningful set of standards on the treatment of persons in immigration detention.  In January 1998, the DOJ/INS issued these standards, which focused on legal access issues.  In September 2000, it issued revised National Detention Standards (NDS).  However, neither the NDS nor the more detailed, subsequent revisions known as the Performance Based National Detention Standards (PBNDS) of 2008 and 2011 were codified in regulations or statutes.

Since 2001, the ABA Commission on Immigration has operated the Detention Standards Implementation Initiative, which recruits and trains lawyers to assess and report on compliance with standards in detention facilities across the country. The Commission also communicates with men and women in detention through a toll-free hotline and operates three programs that provide legal representation to detained adults and children in their removal proceedings: the South Texas Pro Bono Asylum Representation Project (ProBAR) in Harlingen, Texas; Volunteer Advocates for Immigrant Justice (VAIJ) in Seattle, Washington; and the Immigration Justice Project (IJP) in San Diego, California.

The new ABA civil detention standards call for using the least restrictive means necessary to ensure that persons in removal proceedings appear for their court hearing and, if ordered, for their removal from the United States. They envision use of detention as a last resort, following consideration of a continuum of less expensive and burdensome supervised release and alternative-to-detention programs.

The standards cover detainee classification and placement; physical plant and environmental issues; daily living conditions; communications; access to legal services; health care; access to religious services; visitation; administration and staffing; personal security; administrative and disciplinary issues; grievances; and accountability and oversight. The standards place responsibility on DHS for strictly overseeing its contract facilities and for making decisions on classification, release and reassignment of persons in its custody. They also provide for strong external oversight by government watchdogs, the press, and non-governmental organizations.

The standards were developed over many months by the ABA Commission on Immigration, with the assistance of an expert advisory group comprised of a former INS Commissioner, the Commissioner of the New York City Department of Corrections, and experts from the corrections, medical, academic, and other fields. The law firm of Crowell & Moring LLP provided crucial pro bono assistance in this process. Several ABA sections, divisions, and bar associations co-sponsored the standards. The ABA’s House of Delegates adopted them on behalf of the 400,000 member association.