By Harvard Immigration and Refugee Clinical Program

The United States maintains the world’s largest immigration detention system, detaining tens of thousands of people in a network of facilities, including those managed by private prison corporations, county jails, U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and the Office of Refugee Resettlement (ORR). At the time of writing, ICE is detaining over 35,000 people, including long-term residents of the United States, people seeking asylum, and survivors of trafficking or torture. Instead of finding refuge, these people are held in ICE custody for extended periods, enduring inhuman conditions such as solitary confinement (dubbed “segregation” by ICE), where they are isolated in small cells with minimal contact with others for days, weeks, or even years. In many instances, such conditions would meet the definition of torture, or cruel, inhuman, or degrading treatment under international human rights law. Solitary confinement causes a range of adverse health effects, including post-traumatic stress disorder (PTSD), self-harm, and suicide risks. Prolonged confinement can lead to lasting brain damage, hallucinations, confusion, disrupted sleep, and reduced cognitive function. These effects persist beyond the confinement period, often resulting in enduring psychological and physical disabilities, especially for people with preexisting medical and mental health conditions or other vulnerabilities. In recognition of this well-documented harm, ICE issued a directive in 2013 to limit the use of solitary confinement in its facilities, especially for people with vulnerabilities. A 2015 memorandum further protected transgender people, emphasizing solitary confinement as a last resort. In 2022, ICE reinforced reporting requirements for people with mental health conditions in solitary confinement, highlighting the need for strict oversight. Despite these directives, however, government audits and whistleblowers alike have repeatedly revealed stark failures in oversight. This report – a joint effort by Physicians for Human Rights (PHR), Harvard Law School’s Immigration and Refugee Clinical Program (HIRCP), and researchers at Harvard Medical School (HMS) – provides a detailed overview of how solitary confinement is being used by ICE across detention facilities in the United States, and its failure to adhere to its own policies, guidance, and directives. It is based on a comprehensive examination of data gathered from ICE and other agencies, including through Freedom of Information Act (FOIA) requests, first filed in 2017, and partly acquired after subsequent litigation. It is further enriched by interviews with 26 people who were formerly held in immigration facilities and experienced solitary confinement over the last 10 years. Executive Summary The study reveals that immigration detention facilities fail to comply with ICE guidelines and directives regarding solitary confinement. Despite significant documented issues, including whistleblower alarms and supposed monitoring and oversight measures, there has been negligible progress. The report highlights a significant discrepancy between the 2020 campaign promise of U.S. President Joseph Biden to end solitary confinement and the ongoing practices observed in ICE detention. Over the last decade, the use of solitary confinement has persisted, and worse, the recent trend under the current administration reflects an increase in frequency and duration. Data from solitary confinement use in 2023 – though likely an underestimation as this report explains – demonstrates a marked increase in the instances of solitary confinement. This report exposes a continuing trend of ICE using solitary confinement for punitive purposes rather than as a last resort – in violation of its own directives. Many of the people interviewed were placed in solitary confinement for minor disciplinary infractions or as a form of retaliation for participating in hunger strikes or for submitting complaints. Many reported inadequate access to medical care, including mental health care, during their solitary confinement, which they said led to the exacerbation of existing conditions or the development of new ones, including symptoms consistent with depression, anxiety, and PTSD. The conditions in solitary confinement were described as dehumanizing, with people experiencing harsh living conditions, limited access to communication and recreation, and verbal abuse or harassment from facility staff. etc.....

New York: Physicians for Human Rights, 2024.  50p.

By Christina Asencio and Rebecca Gendelman

Five months after the Biden administration initiated its new bar on asylum, the policy continues to strand vulnerable people in places where they are targets of widespread kidnapping, torture, and violent assaults. People seeking asylum are forced to risk their lives waiting in danger in Mexico for one of the limited CBP One appointments or risk suffering the ban’s punitive asylum denials or wrongful returns to harm and persecution if they attempt to seek protection at a port of entry or cross outside ports of entry without a CBP One appointment. The targeting of migrants and asylum seekers waiting for these appointments has risen sharply recently, driving many people to cross the border in urgent search of safety. Humanitarian workers assisting asylum seekers forced to wait in Mexico are also facing alarming—and increasing—risks as well.

This harmful bar on asylum (the “asylum ban”) is a new iteration of similar transit and entry bans promulgated by the Trump administration that federal courts repeatedly struck down because they violated U.S. law. A federal district court ruled in July that the Biden asylum ban is unlawful, but it remains in place while on appeal. The asylum ban renders nearly all asylum seekers who traveled through another country on their way to the U.S. southern border ineligible for asylum due to their transit routes and/or manner of entry unless they (1) applied for and were denied asylum in one of those countries (regardless of their safety there), or (2) managed to secure one of the asylum ban’s limited “pre-scheduled” appointments to enter at an official port of entry. To try to get a U.S. port of entry appointment, people seeking asylum (as well as other migrants who are not seeking asylum) are left to struggle to obtain an appointment via CBP One, a smartphone app that operates much like a daily lottery and is plagued by deficiencies that impede equitable access.

Not only does the asylum ban violate both U.S. and international law, but it has generated strong and diverse opposition from faith groups, Holocaust survivors, major unions, civil rights organizations, members of the president’s political party and other key Biden administration allies. President Biden should honor his campaign promise to end such restrictions by bringing this harmful policy—which his administration has pledged is only temporary—to its end now. Every day that it is left in place, it endangers refugees’ lives and subverts refugee law.

Instead, the Biden administration should double down on some of the effective, humane, and legal policies that it has already initiated or announced, and reject those that punish, ban, and block people seeking asylum, contrary to core tenets of international refugee protection. Key steps include to: quickly ramp up plans to expand regional refugee resettlement, strengthen the administration’s pivotal parole initiatives, increase critical aid to address regional protection gaps driving many to flee north, urgently increase support for safe shelter and other dire needs of people waiting in Mexico, uphold fundamental human rights in regional migration coordination, maximize access to asylum at ports of entry, properly staff asylum and immigration court adjudications, and improve and restart use of the Biden administration’s new asylum processing rule to help adjudicate a greater number of asylum cases more efficiently.

New York: Human Rights First, 2023. 67p.

Edited by Monika Heupel, Caiden Heaphy, and Janina Heaphy

This book examines why the United States has introduced safeguards that are designed to prevent their counterterrorism policies from causing harm to non-US citizens beyond US territory. It investigates what made US policymakers take steps to "put the gloves back on" through five case studies on the emergence of such safeguards related to the right not to be tortured, the right not to be arbitrarily detained, the right to life (in connection with targeted killing operations), the right to seek asylum (in connection with refugee resettlement), and the right to privacy (in connection with foreign mass surveillance). The book exposes two mechanisms – coercion and strategic learning – which explain why the United States has introduced what the authors refer to as "extraterritorial human rights safeguards", thus demonstrating that the emerging norm that states have human rights obligations towards foreigners beyond their borders constrains policy choices. This book will be of key interest to scholars and students of human rights, counterterrorism, US foreign policy, human rights law, and more broadly to political science and international relations.

London; New York: Routledge, 2022. 252p.

By Rudy Schulkind and Idel Hanley

New research published today by Bail for Immigration Detainees (BID) and Medical Justice documents the devastating impact upon immigration detainees in prisons of conditions amounting to indefinite solitary confinement. People held for immigration reasons (including torture survivors and those with serious vulnerabilities) are locked in their cells for over 22 hours a day, most often 23.5, with people sometimes being held in their cells for days at a time and unable to take a shower. Some are self-harming, attempting suicide and unable to sleep or eat. They report existing in a state of endless despair. Physical symptoms include involuntary shaking, memory loss and physical pain. As one man told us:

“I didn’t enter prison with mental health problems but I’m not the same person I was. My mind is not the same. I’m not sure if what has happened to be can be repaired.”

Another said: “It just feels illegal because of what it’s doing to my mind and body. If this isn’t breaching my rights, then what will? It’s as though I’ve fallen into a crack that the Home Office opened and I can’t get out.”

The research released today is based on interviews with 5 immigration detainees and on medico-legal reports produced by doctors, as well as reviews of case files that argue for the release of people held in prolonged confinement – either solitarily or with a cell-mate. 

Key findings: Five disturbing statements describe people being pushed to the limit of what a human being can be expected to endure. Two people described the experience as torture. Their statements are distressing to read but they have been included in this report.  The medico-legal reports illustrate severe impact on health including the exacerbation of pre-existing mental health conditions and the onset of new conditions. The severe harm caused is reflected in the literature on the impact of solitary confinement on health. It can cause long-term and even irreversible harm and may increase the risk of suicide. Prolonged solitary confinement is prohibited by the United Nations and can amount to torture or cruel, inhuman or degrading treatment, according to the UN Special Rapporteur on Torture. The report also finds that in individual cases and in official correspondence the Home Office has failed to engage with the issue of prolonged solitary confinement in prisons.  It appears that severely restrictive prison conditions are not being considered when assessing the proportionality of immigration detention.   

London: Bail for Immigration Detainees (BID) and Medical Justice, 2021. 33p.

Speaking of the years since 1945, the writers of this Report on Torture remark: “Never has there been a stronger or more universal consensus on the total inadmissibility of the practice of torture; at the same time the practice of torture has reached epidemic proportions.” On Human Rights Day, 1972, Amnesty International launched a worldwide campaign against the systematic use of torture by governments.

Report on Torture contains authoritative discus­sions of the history of torture, problems of legal definition, the medical and psychological aspects of torture, legal remedies, and a country-by country inventory of the use of torture by many governments as a means of extracting information and exercising political and social control over their citizens. There is information here on sixty- two countries, including the United States, but Report on Torture stresses that "to criticize one government is not to praise another about which Amnesty has no information.”

NY. Farrar, Straus and Giraux.. 1975. 283p.