Australia abandons controversial detention policy as the U.S. embraces one.

Monday, September 1st, 2008
By: Jonathan MontagJ.D.

In July 2008, the Australian government announced that it would relax its mandatory detention policy for arrivals to Australia who lacked proper documents to enter the country. The government’s new policy is based on the following principles:

1. Mandatory detention would apply to:
a. all unauthorized arrivals, for management of health, identity and security risks to the community;
b. unlawful non-citizens who present unacceptable risks to the community; and
c. unlawful non-citizens who have repeatedly refused to comply with their visa conditions;
2. Children, including juvenile foreign fishers and, where possible, their families, will not be detained in an immigration detention center;
3. Detention that is indefinite or otherwise arbitrary is not acceptable and the length and conditions of detention, including the appropriateness of both the accommodation and the services provided, would be subject to regular review;
4. Detention in Immigration Detention Centers is only to be used as a last resort and for the shortest practicable time;
5. People in detention will be treated fairly and reasonably within the law; and
6. Conditions of detention will ensure the inherent dignity of the human person.

The Australian media was and continues to be full of stories of prolonged detentions of asylum seekers and people suffering and dying in detention. The government response promises to end policies that seem inevitably to result in human rights outrages.

In contrast, despite the United States media also being full of stories of prolonged detentions, mistreatment and deaths in custody, and inhumane conditions suffered by foreigners coming to the United States for protection, the United States has instituted a new policy, with virtually no reporting on it, that amounts to the type of mandatory detention Australia has abandoned.

On November 7, 2007, Julie L. Meyers, Assistant Secretary, ICE, issued a memorandum about detention of asylum seekers coming to the United States without proper documents for admission to the United States – think Julie Andrews in the Sound of Music fleeing from Austria to avoid persecution. The memorandum requires that all asylum seekers be detained while their applications are processed, a process that takes a minimum of six months.  To be considered for release in parole status, first an alien must be identified and a determination made that he or she is not a flight risk or danger to the community. If these hurdles are jumped, the ICE decides whether there are urgent humanitarian reasons” or “significant public benefit” to motivate a release from detention. Only the following groups need even apply for parole:

1. Aliens with serious medical conditions where detention would be inappropriate;
2. Pregnant women;
3. Certain juveniles;
4. Witnesses in criminal or administrative proceedings;
5. Aliens whose detention is not in the public interest.

Merely being in one of these categories is not enough – a separate determination of whether there are urgent humanitarian reasons or significant public benefit to motivate release must be made.  In practice, nearly no one makes the cut. If you think that the right to be free or to unite with family is a “humanitarian reason” to release someone, you would be wrong. If you think that saving the government bundles of money (it costs the government more than $100 a day to detain an alien) by not detaining aliens who are likely to win their cases, who will not be deported even if they lose their cases, or whose cases present novel issues that could require prolonged litigation, is not a significant public benefit, you would be wrong again. For example, the detention centers are full of Chaldean asylum seekers who nearly always are granted asylum and even if they lose are not deported. Detaining them the minimum half year it takes for their case to be decided costs the government $18,000 each. The stories of abuse and death concomitant with all this mandatory detention get worse and worse.  A former President Bush once talked about a kinder and gentler United States. Right now we have nothing of the sort. Australia concluded that their policy was indefensible. When will the United States conclude the same?


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